"Immediate Need" Personal Care

People who apply for Medicaid in order to obtain home care services face long delays in obtaining these services.  This article describes several strategies to minimize these delays.

Causes of Delays for new Medicaid Applicants to  Enroll in Managed Long Term Care Plans 

1. First, they must apply for Medicaid at the local Medicaid office — which is required to process the application in 45 days and sometimes 90 days.  See this article on these deadlines and this article for information about how and where to file these  applications in New York City, and this fact sheet with tips for applications..   It can often take longer.  

   • NEW 7-DAY APPROVAL TIME FOR MEDICAID COMING SOON!  On July 1, 2016 new regulations become effective that will require that Medicaid applications be processed and approved in SEVEN CALENDAR DAYS if there is an “immediate need” for personal care services or consumer-directed personal assistance services (CDPAP). The regulations implement a new law enacted April 1, 2015.  NY Soc. Serv. L. §366-a(12).   Regulations add new sections 18 NYCRR 505.14(b)(7) and (8)  (PCS)   505.28(k) an (l) (CDPAP), published in NYS Register 5/25/2016. See more here.

2. Next, most adults  who have Medicare must request a “conflict free” eligibility assessment from New York Medicaid Choice, a company under contract with the NYS Dept. of Health.  This company determines if they are eligible for long term care.  It can take 2 weeks to set up that assessment.  If they are found eligible —

3. Next they must contact different managed long term care plans and request they schedule an assessment in the home, at which time the individual can enroll.  However, the plan must submit the signed enrollment forms by the 18th of the month in order for enrollment to start on the 1st of the following month.  IF they miss that deadline, it delays enrollment in an MLTC plan a whole month.   See contact lists for MLTC plans here (look only at Long-Term Care Plans at that link)

4. Further delays can be caused it the individual has a “spend-down“ — then the plan must often request the local Medicaid program to change the Medicaid eligibility codes in the computer system – a process called a “conversion.”   These procedures and forms are explained in this fact sheet.

STRATEGY ONE:   Request “Immediate Need” Personal Care Services with Medicaid Application or after Medicaid approved

In July 2015, the NYS Dept. of Health issued a directive — GIS 15 MA/011 – Reminder of Expedited Authorization Process for Medicaid Recipients with Immediate Need for Personal Care Services — PDF.   This directive makes an important change for any adult who has Medicare who needs Medicaid home care.  Before this directive was issued ,the “front door” was closed at the local Medicaid program to request Medicaid personal care services from the local Medicaid agency.  Anyone who had Medicare had to apply for Medicaid at the local Medicaid agency, but then had to enroll in a Managed Long Term Care plan to get home care.   As described above, that could take months – even AFTER Medicaid eligibility was approved.  With this directive, the State announced that local Medicaid offices may authorize personal care services to a Medicaid recipient once Medicaid is approved.  This means the individual may submit a physician’s order – known as an M11q in New York City (fill-in-able version) – to the local Medicaid office, which must authorize personal care services if there is an “immediate need” for these services.  Also see Q-Tips for tips on how the physician can complete the M11q.

TIP:  Though this directive says that the local Medicaid agency will only process a request for expedited home care once Medicaid is approved, you can still submit the physician’s order/ M11q along with the Medicaid application.   Include:

• a Cover letter that shows eligibility for “immediate need” services, including:
  • If Medicaid application already submitted, provide a copy with the date submitted as well as the name/address where submitted.   
    • OR if Medicaid already approved, gives the CIN number and date of approval, and:
  • explains why individual has an immediate need for services and cannot wait to enroll in an MLTC plan.  

  • explains how the applicant was managing previously and what precipitated the need for Immediate Needs consideration.

  • states whether there are other services in place and if there are informal supports available, or if they were available explains they are no longer available .  

• HIPAA release – OCA Form No. 960 – Authorization for Release of Health Information Pursuant to HIPAA (completed
• In NYC, e-fax to HRA Home Care Services program at  1-917-639-0668;

You can ask the Medicaid application be expedited based on state law amended in 2015 to require the State Dept. of Health to establish procedures to process a Medicaid application in SEVEN DAYS of the filing of a complete Medicaid application,  if there is an immediate need for personal care services.  N.Y. Social Services Law §366-a(12).   As of December 2015, these procedures are still not established.   Click here for information on the status of the State’s proposed procedures to implement this law..  

STRATEGY TWO:   State Law Historically Authorized Temporary Services Pending the Medicaid Application — But is Still Tied up in Litigation over Recent Amendments to the Law

A lawsuit filed in 2007 and still pending —  Konstantinov v. Daines —  asserts that Medicaid services must be authorized while a Medicaid application is still pending, before it is accepted, if there is an immediate need for services.  The lawsuit focuses on Medicaid personal care services, and was brought before the transition to Managed Long Term Care.  Since the lawsuit was filed, the legislature has amended the state law upon which the lawsuit is based repeatedly, most recently in April 2015. The state contends that the 2015 amendments to state law eliminate the authority for providing any Medicaid applicant with services before their application is approved.  However, the 2015 amendments now require new procedures to approve Medicaid applications in just seven days.   As of December 21, 2015, these procedures are still not established.  

Brief history of lawsuit

A 2010 court Order  directed the NY State Dept. of Health  to establish a procedure for certain needy Medicaid applicants and recipients to obtain immediate temporary personal care services while their Medicaid application was pending.   Konstantinov v. Daines, 2010 WL 7746303 (N.Y. Sup. 2010, Hon. Joan Madden).  The State was further ordered  to provide Medicaid applicants with notice of the availability of these services. The lawsuit was brought by Aytan Bellin, Esq., a private elder law attorney practicing  in Westchester and New York City.

The Court order was upheld on appeal in 2012.  101 A.D.3d 520, 522 (1st Dept. 2012).  In 2013 the State moved to vacate it because of new legislation enacted — SSL § 364-(i)(7), which the State contended limited the impact of the decades-old law  upon which the Court’s 2010 decision was  based.   That law — NY Social Services Law Sec. 133, in its current form states:

“Upon application for public assistance or care under this chapter, the local social services district shall notify the applicant in writing of the availability of a monetary grant to meet emergency needs assistance or care and shall, at such time, determine whether such person is in immediate need. If it shall appear that a person is in immediate need, emergency needs assistance or care shall be granted pending completion of an investigation. The written notification required by this section shall inform such person of a right to an expedited hearing when emergency needs assistance or care is denied. A public assistance applicant who has been denied emergency needs assistance or care must be given reason for such denial in a written determination which sets forth the basis for such denial.”

By  order dated March 12, 2014, Justice Madden denied the Department’s motion to vacate her July 2010 Order, and ordered the State to propose regulations to implement the Order. Konstantinov v. Daines, 2014 N.Y. Misc. LEXIS 1137; 2014 NY Slip Op 30657(U),   

2014 Proposed Regulations 

To comply with the Court Order, the State  published proposed regulations to by which Medicaid applicants and recipients may obtain “immediate temporary personal care services,” The regulations were published in the July 16, 2014 State Register p. 20.  NYLAG, Empire Justice Center, the Legal Aid Society and other consumer advocates filed comment in support of the regulations, but recommending that the procedure be adapted in light of the sweeping changes in the delivery of Medicaid personal care services.   When the 2010 court order was issued, these services were authorized by local county Medicaid programs, such as HRA in New York City.  Now, managed long term care plans are charged with authorizing and delivering these services.    The proposed regulations would use the old system to provide the temporary services, with the local Medicaid offices conducting the assessment process.   

• Empire Justice Center comments on regulations.
• NYLAG comments on regulations
• Comments also filed by the Coalition to Protect the Rights of New York Dual Eligibles and The Legal Aid Society.

In February 2015, after reviewing the comments, the State issued revised proposed regulations, specifically citing NYLAG’s comments. to the 2014 proposed regulations.  Again, NYLAG and other organizations filed comments. 

2015 Amendment to State Law and Regulations to Expedite Medicaid Applications in 7 Days —  and Authorize Home Care for those with Immediate Need in 12 Days

In April 2015, State law was amended in  to require the State Dept. of Health to establish procedures to process a Medicaid application in SEVEN DAYS of the filing of a complete Medicaid application,  for any applicant with  an immediate need for personal care or consumer-directed personal assistance services.  N.Y. Social Services Law §366-a(12).  The State Department of Health went back to court contending that this and another change in section 133 of the Social Services Law meant that the State no longer needed to publish regulations establishing an expedited procedure for authorizing personal care services for new applicants for Medicaid.  

In July 2015, the State Supreme Court Justice hearing the Konstantinov case rejected the State’s argument with respect to Medicaid recipients — those whose applications were already accepted.  For Medicaid applicants, whose applications were still pending,  the Court “stayed” or postponed the requirement for the State to issue regulations.   As to Medicaid recipients —  these  persons already on Medicaid  — in immediate need, Justice Madden ordered that the regulatory procedure begun July  2014 continue.   That means that DOH was required to  issue final regulations concerning Medicaid recipients on July 16, 2015, which is one year after the Notice of Proposed Rulemaking was published, or must issue a second revised notice of proposed rulemaking on July 16, 2015 with the final Rules to be issued by October 14, 2015.

On July 1, 2016 new regulations become effective that will require that Medicaid applications be processed and approved in SEVEN CALENDAR DAYS if there is an “immediate need” for personal care services or consumer-directed personal assistance services (CDPAP). The regulations implement a new law enacted April 1, 2015.  NY Soc. Serv. L. §366-a(12).  

• Regulations add new sections 18 NYCRR 505.14(b)(7) and (8)  (PCS)   505.28(k) an (l) (CDPAP), published in NYS Register 5/25/2016

• Once implemented through a forthcoming ADM, applicant will submit Medicaid application along with a Physician’s Order (M11q) and “Attestation of Immediate Need,” which will be a standard statewide form.  It will contain the same information that is now used for requesting “immediate need” personal care services (see below).  But this will be used to establish eligibility for the expedited 7-day Medicaid approval and a 12-day approval and authorization for Personal Care or CDPAP services.

The July 2016 regulations were the last in a series of proposed regulations.  NYLAG and other organizations submitted comments on many of the draft proposed regulations, such as those published on October 28, 2015 (page 3).    NYLAG, Empire Justice Center,the NYS Bar Association Elder Law Section, and other organizations again filed comments.  Click here for NYLAG comments.   Click here for Empire Justice Center comments.