Procedures to appeal adverse decisions by Managed Long Term Care and mainstream Medicaid managed care plans are changing April  1, 2018 (was extended from March 1, 2018)

Changes in federal Medicaid managed care regulations regarding GRIEVANCES AND APPEALS will be effective in NYS in April 2018.    The federal changes are in 42 CFR 438 SubPart F.  

The changes are solely in the PROCEDURES to appeal adverse plan determinations.  They do not change the regulations and policies that limit the circumstances when plans may REDUCE personal care or CDPAP services, or the rules for plans to evaluate how much home care a member needs.   For REDUCTIONS, see MLTC Policy 16.06, which clarifies the requirements for notice of a reduction, and the bases for a reduction.  Those rules are based on Mayer v. Wing, 922 F. Supp. 902, 911(S.D.N.Y. 1996), as codified in state regulation at 18 NYCRR 505.14(b)(5)(c).  Also see  MLTC Policy 16.07: Guidance on Task–based Assessment Tools for Personal Care Services and Consumer Directed Personal Assistance Services.

I.  Difference between GRIEVANCE and APPEAL

  • A grievance is a complaint you make directly with the MLTC plan about the quality of care, services or treatment you received or about communications with the plan.   A grievance is not about the scope, amount or type of service that was approved by the plan. EXAMPLES include the aide or transportation is late or doesn’t show, aide  isn’t trained well, you can’t reach your care coordinator by phone, you were treated rudely, or you disagree with the plan’s decision to extend its time frame to decide your request for new or increased services.  42 CFR 438.404(c).  See more about the time frames for plan to approve or deny your request for new or increased services here.      See more about GRIEVANCES here.

  • An Appeal is a request to review an action taken or an adverse determination made by a plan.  If your MLTC plan denies a new service or an increase in an existing service, or reduces or stops services that you already had, you have the right to appeal.   For example, the plan reduces your personal care services from 12 to 8 hours/day, or denies your request to participate in the Consumer-Directed Personal Assistance Program (CDPAP), or denies your request to increase your hours of personal care services.

    • NOTICE:  State Regulations were amended in 2015 to strengthen the requirements for the content of notices of reduction, which must specify the justification for reducing hours to less than was previously found medically necessary.  See MLTC Policy 15.09: Changes to the Regulations for Personal Care Services (PCS) and Consumer Directed Personal Assistance (CDPA) Notice of Adoption.  CDPA Changes   PCS Changes

    • The State DOH strengthened the NOTICE requirements further in 2016 in MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services

II.  How to Appeal an Adverse “Initial Determination”  by MLTC Plan – Changes  April 1, 2018


  1. Internal Appeal or Plan Appeal – Appeal of an :INITIAL ADVERSE DETERMINATION” by the plan (IAD),  requested to the managed care plan,  decided by plan personnel who did not make the initial adverse determination.  The plan’s appeal decision is called a “FINAL ADVERSE DETERMINATION” (FAD). 

  2. Fair Hearing – Appeal requested to the State Office of Temporary & Disability Assistance (OTDA),  decided by an Administrative Law Judge. 

  3. External Appeal – Appeal requested to the  NYS Department of Financial Services (DFS) when your plan  denies health care services as not medically necessary, experimental/ investigational or out-of-network.  May only be requested after the Internal Appeal/Plan Appeal.  See more here.

What is changing April 1, 2018 – Must Request Internal Appeals before request a Fair Hearing

  • FORMER RULE — UNTIL NOW — From  July 1, 2015  until April  1, 2018– 

After a Medicaid managed care plan made an initial adverse determination, the member has generally had the OPTION to either:

  •  Request an internal appeal with the plan (See MLTC Policy 15-03), and if that internal appeal was not successful, then request a Fair Hearing and/or an External Appeal.


  •  Request a Fair Hearing immediately after the initial adverse determination by the plan. 

Only in one circumstance was the member REQUIRED to request a Fair Hearing immediately. That was if the plan’s determination was to REDUCE or STOP a service.  Then in order to get Aid Continuing, the member HAD to request a fair hearing right away. 


Beginning April 1, 2018, the member MUST first request an Internal Appeal from the plan of an Initial Adverse Determination by the plan. Only after a decision on that internal appeal is made by the plan, called a “Final Adverse Determination” or “FAD,” may the member request a FAIR HEARING.  This is true regardless of whether the plan’s action is to reduce, terminate, or deny services. 

AID CONTINUING -BEWARE!!!!!   If the PLAN’S action is to reduce or terminate services, then the member MUST request the internal appeal within 10 days of the date of the notice, or before the effective date of the notice, in order to be entitled to AID CONTINUING.  This is very new.  Before, the member had to request a Fair Hearing in order to receive AID CONTINUING. 

More about INTERNAL APPEALS – After April 1, 2018, must “exhaust” internal appeal before requesting a Fair Hearing.

 1.   New Model Notices for Plan’s “Initial Adverse Determination” -must explain new “exhaustion” requirement

After April 1, 2018, managed care and MLTC plans must use these new notice templates to inform a member that it is denying, reducing, or stopping a service

  1. “”INITIAL ADVERSE DETERMINATION – REDUCTION” Click here forthe template for a notice of proposed reduction in services  and click here for an unofficial sample of a completed notice based on hypothetical facts — completed by NYLAG. 

2.     DEADLINE TO REQUEST INTERNAL APPEAL  – Warning re Aid Continuing

If the plan’s “initial adverse determination”  is to REDUCE or STOP services, you must request the appeal within 10 days of the date of the notice, or before the EFFECTIVE DATE of the notice, which must be at least 10 days after the date of the notice.   Otherwise you will not receive AID CONTINUING.   

NOTEL  You are entitled to Aid Continuing even if the authorization period for the service has expired, or after you have transitioned to the plan from fee for service home care..  See this discussion

If the plan’s “initial adverse determination”  is not a reduction, but denies a new service, or denies an increase in an existing service, or authorizes a service in less than the amount you requested, after April 1, 2018 the member will have 60 calendar days to request an internal appeal, from the date of the notice.  This is an increase from 45 days under the old rules before April 1, 2018.

You MAY request an internal appeal if the plan misses the deadline to decide your request for new services or for increased services.   Federal regulations specifically state that this constitutes a denial which can be appealed.  42 CF.R. 438.404(c)(5). These deadlines are explained in this article.


You may either:

       Call the member services phone number of your plan.  The federal regulations require you to confirm an ORAL request in WRITING unless you request that your appeal be “expedited” (Fast Track).  See more about Fast Track appeals in #3 below.  42 C.F.R. 438.406(b)(3) The date of the oral appeal must be considered the filing date of the appeal for purposes of Aid Continuing and the statute of limitations.  Id. 

       FAX the request –  fax number should be on the NOTICE received from the plan.  Use the Appeal Request Form that should be part of the NOTICE from the plan (part of this PDF).   

       E-mail the request — the e-mail address should be on the NOTICE received from the plan.  Attach the Appeal Request Form form that should be part  of the NOTICE from the plan (part of this PDF).

        Write to your plan.  Write to Member Services return receipt requested and write APPEAL REQUEST on the envelope and on the letter.  Make sure you include your Member ID number, name, address, Medicaid number, phone number, and the reasons for your appeal.  The Appeal Request Form that should be attached to the plan’s notice contains all of this information.

We will post fax numbers, e-mails, telephone numbers, and addresses as soon as they are available for each plan in this article.  They are not available as of January 30, 2018.  State DOH  is requiring plans to provide fax and phone numbers and mailing address.  They suggest but are not requiring plans to provide email addresses or an online portal. 

IF YOU NEED HELP REQUESTING APPEAL – The plan must give enrollees “any reasonable assistance in completing forms and taking other procedural steps relating to a grievance or appeal.  This includes, but is not limited to, auxiliary aids and services upon request, such as providing interpreter services and toll-free numbers that have TTY/TTD and interpreter capability.  42 CFR 438.406(a). 

4.   Who May Request the Internal Appeal for the Member?

The federal regulation  says,  “If State law permits and with the written consent of the enrollee, a provider or an authorized representative may request an appeal or file a grievance, or request a State fair hearing, on behalf of an enrollee.”    § 438.402(c)(1)(ii).  Arguably, this language requires the member to give written consent for a representative to file an appeal request, which could delay filing a request with disastrous consequences — the client could miss the deadline to request Aid Continuing

To prevent problems, we recommend having a member pre-designate a person or organization to request appeals when needed.  See this suggested form and read tips about using it

In  the preamble to the regulations, CMS states,   “…we defer to state determinations regarding the design of their grievance and appeal system; state law could vary regarding who the state recognizes as an authorized representative.”  81 Fed. Reg. at 27510.  New York has always been expansive in permitting family or representatives to request the appeal, thus ensuring that the right to appeal is not unduly restricted.  For example, the OTDA  fair hearing request form allows a person requesting the hearing to  indicate whether  they are the “requester” or the “representative.”  NYS DOH’s templates for model MLTC notices issued  In March 2015  state, “You can have someone you trust ask for an Internal Appeal for you.”  

ADVOCACY TIP:  Have Member Sign Form To Designate a Family Member or Representative to Request an Appeal – and Submit Form to Plan Now, BEFORE the plan takes adverse action.   

In the Model Appeal and Hearing Request Forms that the State is requiring all plans to use (Requests forms are attached in the same PDF after the model notices), the form allows someone to request the appeal on the member’s behalf, without requiring the member to sign the request form,  if the member has authorized the person with the plan before.  Here is a suggested authorization form, developed by NYLAG EFLRP, by which a member may pre-designate a family member, lawyer, social worker, or ICAN to act on her behalf – or to authorize someone to act.  We suggest that these be completed, signed and provided to the care manager for the client’s file, so that in the event the plan later takes an adverse action, the designated person, attorney, etc. may request the appeal without being delayed by the need to get the client’s signature.  

TIPS on completing the managed care authorization form:

  • The member may designate more than one person/organization in this form to request an appeal.  Check all that apply.  Note that the form has an additional checkbox for the member to indicate that the individual may also act on their behalf for the entire appeal.  Member should check that too.  

  • Send it certified to the plan with a cover letter so you have proof that it was provided.  Or give it to the care manager in person, and have the care manager sign your copy as received.  Attach that proof of delivery when you request an appeal later.  

5.    Right to Request Expedited or “Fast Track” Appeal

You or your provider have the right to request an expedited or “Fast Track”  appeal.   The plan must expedite its appeal decision if it determines (for an appeal request made by the member) or if the provider indicates (if the provider is requesting the appeal on the enrollee’s behalf or supporting the enrollee’s appeal)  that “taking the time for a standard resolution could seriously jeopardize the Enrollee’s life, physical or mental health or ability to attain, maintain or regain maximum function.”   42 CFR 438.410.

The Appeal Request Form that plans should send with adverse notices has a check-off for requesting a Fast Track Appeal.  


  • Appeal must consider all documents and information submitted in the appeal, regardless of whether it was submitted initially in the initial adverse benefit determination.  42 CFR 438.406(b)(2)(iii)

  • Must provide the enrollee a reasonable opportunity, in person and in writing,  to present evidence and testimony and make legal and factual arguments. The plan must inform the enrollee of the limited time available for this sufficiently in advance of the resolution time frame for appeals (See #  below). 42 CFR 438.406(b)(4).

    • COMMENT:   On the Appeal Request Form that plans must attach to their Initial Adverse Determination notices, there is a checkbox if you want to include additional documents with the appeal request, or if you want to give information in person. You could also write in that you would like additional time to submit additional documentation. 

  • Provide the enrollee and his or her representative the enrollee’s case file, including medical records, other documents and records, and any new or additional evidence considered, relied upon, or generated by the plan in connection with the appeal.  This information must be provided free of charge. 42 CFR 438.406(b)(5).

  • Appeal must be decided by a plan employee who was not involved in the initial adverse determination being appealed, and who is not a subordinate of anyone involved in the initial adverse determination.   They must also have appropriate clinical expertise.    42 CFR 438.406(b)(2). 

  • IF YOU NEED HELP REQUESTING or taking other Procedural Steps Relating to the APPEAL – The plan must give enrollees “any reasonable assistance in completing forms and taking other procedural steps relating to a grievance or appeal.  This includes, but is not limited to, auxiliary aids and services upon request, such as providing interpreter services and toll-free numbers that have TTY/TTD and interpreter capability.  42 CFR 438.406(a). 

7.   WHEN and with what NOTICE Must Plan Decide INTERNAL APPEAL?

  1.  STANDARD APPEAL  -The plan must decide a standard appeal within 30 calendar days of receipt of the appeal request, subject to extension by up to 14 days on the enrollee’s request or if the plan shows the State, upon request, that additional information is needed and how the delay is in the enrollee’s request.  42 CFR 438.408(b)(2), (c)

  2.  FAST TRACK or EXPEDITED APPEAL – The Plan must decide an expedited appeal within  72 hours after the plan receives the appeal, subject to same extension of up to 14 days as for standard appeals, above.  42 CFR 438.408(b)(3).  Plan must make a reasonable effort to give oral notice for expedited appeals and must send written notice within 2 business days of decision for all appeals

If the plan has extended the time for it to decide an appeal, it must make reasonable efforts to give the enrollee prompt oral notice of the delay, and within 2 calendar delays give the enrollee writeen notice of the reason for the delay and of the right to file a grievance about the delay.  The plan must resolve the appeal “as expeditiously as the enrollee’s health condition requires and no later than the date the extension expires.”  42 CFR 438.408(c)(2). 

NEW MODEL NOTICE — Final Adverse Determination – State DOH is requiring plans to use this template for its Internal Appeal decision  wholly or partially affirming an Initial Adverse Determination that reduces services.  Notice includes a Fair Hearing Request Form and information about the right to request an External Appeal. 

8.  “DEEMED EXHAUSTION” – Member May Request a Fair Hearing without Internal Appeal if Plan Failed to Meet Notice and Timing Requirements

The regulations provide for an exception to the “exhaustion” requirement.  Where the managed care plan “fails to adhere to the notice and timing requirements of sec. 438.408, the enrollee is deemed to have exhausted the [managed care plan’] … appeals process.  The enrollee may initiate a State fair hearing.”  42 CFR 438.402(c)(1)(A).

This regulation requires the State  to establish policies for defining where deemed exhaustion applies.  Both state agencies — OTDA and DOH  – must revise their procedures and forms to elicit facts that demonstrate whether deemed exhaustion applies. 

Consumers contend that deemed exhaustion should be defined to apply in cases including but not limited to:

  • No written notice of Initial Adverse Determination (IAD) was provided by the plan, or

  • The IAD does not include the requisite information re the right to Aid Continuing, how to request an appeal, etc.

  • The IAD did not incorporate necessary translation or alternative formats, was not on the required template, or did not offer auxiliary aids and services, free of cost, during the appeal, thus impeding the enrollee’s time to appeal or request Aid Continuing.

  • The IAD  does not comply with other applicable requirements, ie. MLTC Policy 16.06;

  • Plan did not decide the appeal  within 30 days from member’s appeal request, or if an expedited appeal was requested, within 72 hours after the MCO receives the appeal, unless extended pursuant to the regulations by up to 14 calendar days.  § 438.408

9.    RIGHT TO REQUEST FAIR HEARING after Adverse Internal Appeal Decision  (“Final Adverse Determination”)

If the plan wholly or partly denies the Internal Appeal, the plan will issue a “Final Adverse Determination” notice.  See the NEW MODEL NOTICE — Final Adverse Determination – State DOH is requiring plans to use this template for its Internal Appeal decision  wholly or partially affirming an Initial Adverse Determination that reduces services.  Notice includes a Fair Hearing Request Form and information about the right to request an External Appeal.

AID CONTINUING ALERT – If the plan’s Initial Adverse Determination was a proposed reduction of services, and the plan denied the appeal – in whole or in part – then the member has the right to request a Fair Hearing with Aid Continuing.  Again, the member must meet the short deadline to request the Fair hearing within 10 days of the date of the Final Adverse Determination notice  or before the effective date of that notice.  Otherwise the member will not receive AID CONTINUING – even if the member obtain aid continuing on the internal appeal requested with the plan.

AID CONTINUING rights apply even if plan reduces services:

  • After the 90-day Transition Period.  This is the first 90 days you are enrolled in an MLTC plan if you transitioned to MLTC from a different fee-for-service Medicaid long term care service in NYC or a county with mandatory MLTC. These include personal care, Consumer-Directed Personal Assistance, Lombardi, Certified Home Health Agency (CHHA), Adult Day Health Care, or Private Duty Nursing.  See Note 1

  • At the end of an “Authorization Period.”   In 2014, the State budget enacted an important change in the Social Services Law that guarantees the right to receive AID CONTINUING if the plan reduces services, “without regard to expiration of a prior service authorization.”   Soc. Services Law Sec 365-a, subd. 8.  See NYLAG Statement in Support of A4996. Before this change, the Department of Health had authorized MLTC plans to reduce or terminate hours of home care services, with no right to Aid Continuing, if the plan’s service reduction coincided with the end of the plan’s “authorization period” for the services.  That policy allowed disruption and even termination of these services without these crucial hearing rights.  Implemented in —

MLTC Policy 14.05: Aid-continuing

MLTC Policy 14.05(a): Proper Handling of Enrollees´ Request for Fair Hearing 

NEW 120-DAY TIME LIMIT TO REQUEST FAIR HEARING – the new federal regulations allow 120 calendar days to request a fair hearing., from the date of the Final Adverse Determination (the plan’s internal appeal decision).  This is longer than the previous limit of 60 days.  42 CFR 438.408

How to request a Fair Hearing  – See this link to OTDA website.   Fax requests are recommended since you can keep proof of fax.  IF there is an Aid Continuing deadline, phone call or fax is recommended.

See WNYLC website on NY Fair Hearings

10.  OPTIONAL External Appeal  — After Internal Appeal – Instead of or in addition to Fair Hearing

The plan’s notice denying your Internal Appeal will explain your right to request an External Appeal, if the reason for the denial is because they determine the service is not medically necessary or is experimental or investigational.   You may request an External Appeal even if you also request a Fair Hearing.   External Appeals are reviewed by a different State agency than Fair Hearings.  If you request both an External Appeal and a Fair Hearing, the decision from your Fair Hearing will be the one that is followed by your plan.  NY Public Health Law 4910


How to Request a Grievance

You or someone on your behalf can file a grievance with the plan in writing, over the phone or in person.   Your member handbook or member services representative should explain how to file the grievance.

For most plans, one requests a grievance or appeal by calling the member services telephone line.  A consumer must be assertive in requesting that they be referred to file a Grievance or Appeal, and know the difference.  Otherwise, the call may never be routed correctly.

TIMING:  The plan must decide your grievance within 90 days after receiving the grievance. 42 CFR 438.408(b).  . 

If you are not satisfied with how your grievance is handled, or it is an emergency, you can also call the State Department of Health MLTC Complaint Hotline at 1-866-712-7197.



MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013 —  further clarifies a previous  Jan. 17, 2013 Directive  

Both the Jan. 17th and Feb. 6th directives remind MLTC plans that they are required to continue previously authorized long-term care services unchanged for 60 days when a consumer initially transfers into MLTC plans. This is called the Transition Period, required in the CMS Special Terms and Conditions approving the MLTC Waiver. p. 17 par. 28(d).  These directives remind plans of their obligation to provide notice before reducing services at the end of the 60-day transition period.  They must continue services unchanged during the internal appeal and until a hearing is decided, known as “Aid Continuing,” when a member appeals the plan’s proposed reduction e or terminate a service.  

The directive states: 

This means that, for any individual receiving fee for service Medicaid community based long term

services and supports and enrolling under any circumstance, the plan must provide 60 days of continuity

of care. Further, if there is an appeal or fair hearing as a result of any proposed Plan reduction,

suspension, denial or termination of previously authorized services, the Plan must comply with the aid

to continue requirement identified above. In particular, if the enrollee requests a State fair hearing to

review a Plan adverse determination, aid-to-continue is to be provided until the fair hearing decision is


The revised directive of Feb. 6th clarifies that the requirement to continue past services unchanged for the first 60 days of MLTC enrollment applies to these services: 

  • The revised directive of Feb. 6th also clarifies that the initial appeal of a proposed reduction in services is an INTERNAL APPEAL within the plan.  Only if that decision is adverse, in whole or in part, does the consumer have the right to request a FAIR HEARING.   


Federal  Regulations – 42 CFR Part 438 Subpart F

NYS DOH Model Contract -Partial Capitation Plans – Appendix K


NYS Public Health Law § 4403, 4403-f

CMS Special Terms and Conditions approving the MLTC Waiver (amended Sept. 2012) 

NYS DOH MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013

MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services


Government Hotlines

NYS Department of Health MLTC Complaint Hotline      

(866) 712-7197

New York Medicaid Choice (for enrollment problems)                 

(888) 401-6582

Fair Hearing Requests (must wait until after internal appeal decision)

(800) 342-3334


 ICAN – Statewide Ombudsprogram for MLTC and Managed Care

(844) 614-8800 

 Legal Aid Society Health Law Helpline NYC                                   

(212) 577-3575

      Outside NYC   

(888) 500-2544

Empire Justice Center

(585) 454-6500

Find other organizations throughout NYS (by zip code or population)

ADVOCATES for New York City Only

New York Legal Assistance Group                                                                          

Cardozo Bet Tzedek Legal Services                                                                         

(212) 790-0240

CIDNY – Center for Independence of the Disabled NY                            

(212) 674-1300

Services for people Age 60+ by Borough:

                Legal Aid Society Brooklyn Office for the Aging   

(718) 645-3111

                JASA/ Queens Legal Services for the Elderly            

(718) 286-1500

                Bronx Legal Services

(718) 928-3700

                Manhattan Legal Aid for Seniors Project – Above 110th Street

(212) 822-8300

                                                        Senior Intake Line –  Below 110th Street            

(212) 417-3880

                Staten Island                                                                                                          

(718) 233-6480

NOTE:  Some of the organizations listed above give only advice, not legal representation.


There are other organizations who can provide non-legal advocacy assistance, such as independent living centers.  For a list of local centers, visit

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Appeals & Grievances in Managed Long Term Care – CHANGES COMING APRIL 1, 2018