FAQ Regarding Health Homes & Home and Community Based Services (HCBS)

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Notices of Determination and Fair Hearing Policy #HH0004 November 2024 Updates

Instructions
There is an index below that allows the user to click the category they want to see and will automatically scroll to that section of the spreadsheet. Please reach out to healthhomes@health.ny.gov with questions and/or feedback. NOTE: Reference to page numbers and sections included in questions below may no longer be applicable. As adjustments were made to revise this policy, certain page numbers/sections may have been altered.

1. Evidence Packet
2. Timely & Adequate Notice and Mailing
3. Continuing Service
4. Home and Community Based Services (HCBS) Waiver
5. MAPP and UAS (HHSC)
6. Section VII. Revisions
7. Fair Hearing Representative
8. Graduation
9. Due Dates
10. Ruled in Favor of Member without Applicable Appropriateness
11. Excluded Settings

Category	Question/Comment	Response
Evidence Packet	Pg 3. Evidence Packet – Documentation supporting enrollment/disenrollment determinations including, but not limited to, the signed consent form; the updated Plan of Care (POC); care record notes; appropriateness, eligibility assessments, documentation, and medical documentation written summary of the case; the applicable policy governing the program; a copy of the notice being challenged; and an explanation of the action taken and why it was appropriate and in compliance with that policy. As well as the Children's Waiver Eligibility Determination or attempts to complete such Eligibility Determination must be included for children under Home and Community Based Services (HCBS) More documents are required for the FH packet, including appropriateness and eligibility. I don't see an issue with that provided we can note when there is not an eligibility assessment due to enrollment date without being penalized.	The determination of a member's eligibility and appropriateness is a key piece of evidence that an Administrative Law Judge would need to review. In the case where a Health Home is asserting a member is not eligible on this basis, they need to provide such evidence. The Department edited policy in the Definition section for 'Evidence Packet' describing what documentation is included. When reference to 'Evidence Packet' is seen throughout the policy, refer to the definition.
Evidence Packet	The policy lists "the applicable program policy upon which the decision is based;" as one of the documents to support the determination. Is the requirement here that the applicable policy is shared/ submitted when responding to a fair hearing request?	A copy of the Health Home policy/s is to be included in the Evidence Packet to support the program's decision.
Evidence Packet	DOH should add the details regarding submission of the FH packet to NYUpload site and how HHs obtain access.	Health Homes (HH)/Children and Youth Evaluation Service (C-YES) submit Evidence Packets to Office of Temporary Disability Assistance (OTDA) through Upload.NY.gov, a secured portal for Fair Hearings. Each entity sets up an account. Refer to the Office of Administrative Hearings (OAH) transmittal 22-02 (September 1, 2022- Subject: Secure Evidence Submission Portal- UploadNY) at: https://otda.ny.gov/hearings/transmittals/2022/22-02.pdf
Evidence Packet	Please clarify if the evidence packet HAS to be sent to the member/family automatically for each FH or only upon request.	The policy has been changed to clarify that a copy of the Evidence Packet must be provided to the member/family 'upon request' as well as any additional documents requested for the purpose of preparing for the Fair Hearing .
Timely & Adequate Notice and Mailing	Pg 5. timely and adequate notice of a disenrollment within five (5) calendar days of determination; Policy states that the CMA should issue the appropriate notice of determination as follows: "timely and adequate notice of a disenrollment within 5 calendar days of determination". Where does the "within 5 calendar days of determination" come from?	The use of five (5) calendars days was included in policy by the Department to provide ample time for Health Homes/C-YES to ensure the Notice of Determination is prepared and mailed out to the member, upon which time the ten (10) day timeframe for the timely notice requirement begins. The five (5) day timeframe begins when the decision is made by the program (HHSA/HHSC) that the member is to be disenrolled. For HCBS, this is when the LOC is completed and identifies that the child is not eligible.
Timely & Adequate Notice and Mailing	Pg 7. The notice is mailed to the member along with the Health Home Welcome Letter within five (5) business days from the Determination for Enrollment into the Health Home Program. Policy states, "the notice is mailed…within 5 Business days from the determination for enrollment". All other forms in policy references "calendar" days.	Use of five (5) days is adjusted from business to calendar days and will remain in policy to reference the time allotted for preparing and providing the NOD to the member .
Timely & Adequate Notice and Mailing	Pg 7. at least ten (10) calendar days (based on postmark) Change to "issued" to the member. Sometimes the NOD/welcome letter is physically given to the member, securely emailed, etc. Sometimes the NOD and disenrollment letter are physically given to the member, securely emailed, etc. Also, this appears to imply that we must retain a copy of the postmark to prove timely notice, which seems unreasonable and not how we have been audited. The auditors have been looking at the date on the notice and perhaps a case note documenting when it was issued. I understand that a postmark could be brought to the Fair Hearing to prove un-timely notice, but that's a different scenario than how we have to document things. Replace the word "mailed" with issued as not all forms are mailed. Many are given in person or given to the member in alternative formats .	Statute only contemplates issuance of NODs through the mail. The 10-calendar day requirement is part of the statute. DOH will explore development of guidance for issuance of NODs through other means. In the meantime, the use of the word "mail" will remain in policy. Whatever the Health Homes provide in the Fair Hearing process, it is weighed as evidence along with whatever evidence the record includes from the member, including but not limited to, member's testimony.
Continuing Service	Pg 7. If the ten (10) calendar days carry over into the following month, then the disenrollment date is identified and written as the last day of that following month. Any Health Home Care Management (HHCM) core services conducted during this time are billable. If the 10 calendar days carry over into the following month, is the expectation for the CMA to continue to provide services in the interim, or is this simply for administrative purposes?	An NOD may be provided to the member at any point during the month, which may mean that the ten (10) calendar day period carries over into the next month. The member may not be disenrolled until after the required ten (10) day period has elapsed.
Continuing Service	What if the member is being disenrolled due to Medicaid ineligibility, how do we reenroll or allow for billing while waiting for the FH if aid continuing is granted?	The program must adhere to the requirement of Aid Continuing regarding continuing to serve the member regardless of Medicaid status.
Continuing Service	What if the aid continuing notice comes a couple months after NOD submission and the CMA no longer has capacity. Are they required to take the member or can we reassign to a new agency in aid continuing status?	Aid Continuing pertains to the continuation of the service but does not specify that the service must be performed by the same provider. If necessary, the member may be reassigned to a new agency to receive the same services.
Continuing Service	P 9. When a Notice of Determination/Decision is issued to the member, the member has the right to determine whether they want to request a Fair Hearing and whether the selection of Aid Continuing is right for them. If Office of Temporary and Disability Assistance (OTDA) orders Aid Continuing before the effective date stated in the notice, the member continues to receive Health Home Care Management services and/or Children's Waiver Home and Community Based Services until the final outcome of the Fair Hearing is determined. This sections states, "if OTDA orders aid continuing before the effective date stated in the notice.." but often times that notice comes well after the 10 days effective date and then we are tasked with reenrolling the member by undoing the discharge in MAPP and documenting a note about this in the chart. Are we to be putting them into a Pended for Aid Continue status at this point and will it be a billable status (we don't currently use this)?	The Department will provide response to this question once Section VII, which is currently under draft, is issued.
Home and Community Based Services (HCBS) Waiver	Pg 8. The Children's Waiver Home and Community Based Services (HCBS) Eligibility Determination is valid for one (1) year (three-hundred and sixty-five (365) days). If the child/youth no longer meets the Home and Community Based Services (HCBS) eligibility criteria or found ineligible during the annual HCBS Eligibility Determination, then Health Home (HH) /Children and Youth Evaluation Services (C-YES) sends a Notice of Decision (NOD) for Discontinuance in the New York State Children's Waiver (DOH 5288) within five (5) business calendar days from the ineligibility determination to the child/family and (10) calendar days (based on postmark) prior to the action of disenrollment from the Children's Waiver. What is the difference? Are you saying that an NOD for discontinuance can be issued without doing the LOC? Like just because the HHCM thinks they won't be eligible when the time for the LOC comes?Recommend changing this to say: If the child/family requests disenrollment from the waiver or the child/youth is found ineligible during the annual HCBS Eligibility Determination. We don't want HHCMs deciding whether someone is eligible or not without doing the LOC.	The Health Home Care Manager must follow the protocol to obtain needed documentation. An NOD can be issued without a Level of Care being finalized if the Health Home Care Manager attempted to get all documentation required but did not receive it. Reference to postmark has been revised to state, "date mailed."
Home and Community Based Services (HCBS) Waiver	Pg 9. Once a slot becomes available, the Department of Health (DOH) Capacity Management will notify the Health Home (HH)/ Children and Youth Evaluation Services (C-YES) care manager and then the Health Home Care Manager (HHCM)/ Children and Youth Evaluation Services (C-YES) will issue an updated DOH 5287 to the child/family indicating that a slot is available or will need to conduct a new Home and Community Based Services (HCBS) Eligibility Determination if the family wishes to pursue Home and Community Based Services (HCBS) and the Eligibility Determination is over six (6) months. Recommended edit "was signed/finalized over 6 months ago."	Policy has been adjusted to include this recommended language.
Home and Community Based Services (HCBS) Waiver	To confirm, if a child is in aid continue status and their annual HCBS LOC is due, we should do the LOC again if even if we know it will be ineligible and then do we have to provide a NOD for that LOC as well?	If the child is in aid continuing status they need to remain as such until the final Fair Hearing decision is made. If the decision is in favor of the child/family, the Level of Care will be due 365 days from the determination date on the most recently completed Level of Care.
Home and Community Based Services (HCBS) Waiver	Pg 13. If a Fair Hearing is requested, the Health Home (HH) will compile the evidence packet as directed by the Health and Recovery Plans (HARP) or Special Needs Plans (SNP) in support of the determination; the Health and Recovery Plans (HARP) or Special Needs Plans (SNP) have ten (10) calendar days from the date of the notice to forward the evidentiary packet. Is the notice of the outcome of the HCBS EA, or the Fair Hearing notice from OTDA? To whom are they forwarding the evidentiary packet?	The Department has revised this section to remove all contents except the following: "The Health and Recovery Plans (HARP) or Special Needs Plans (SNP) are responsible for issuing the determination regarding eligibility for Home and Community Based Services (Adults). Health Homes are to comply with requests from Health and Recovery Plans (HARP) or Special Needs Plans (SNP) to participate in the Fair Hearing."
Home and Community Based Services (HCBS) Waiver	The Health and Recovery Plans (HARP) or Special Needs Plans (SNP) may request that the Health Home (HH) participate in the Fair Hearing Process, but the Health and Recovery Plans (HARP) or Special Needs Plans (SNP) will be issuing the determination regarding eligibility for Home and Community Based Services (HCBS).'	It will be required that the NOD is issued to the member, which will show the 365 days of eligibility.
MAPP and UAS (HHSC)	Pg 9. NOTE: If an annual Home and Community Based Services Eligibility Determination cannot be completed due to lack of documentation, a DOH 5288 is sent at least ten (10) calendar days prior to the annual reassessment due date. Aren't we still supposed to do the HCBS LOC but indicate that there aren't the required forms/documents by leaving the LPHA date field blank, and then it will give an ineligible result?	The UAS doesn't allow for a Level of Care to be completed for some target populations. The LPHA is only for the SED target population.
MAPP and UAS (HHSC)	Pg 13. Reviews the number of Fair Hearings filed against the Health Home (HH)/Care Management Agency (CMA): Will there be a report from MAPP or UASNY that we can pull to show this information? Or are we expected to track and analyze the data by hand, increasing administrative burden. Also, since CMAs are in multiple Health Homes, isn't DOH in the better position to do this kind of analysis at the CMA level?	The Department will explore the possibility for using MAPP and UAS for tracking and trending.
Section VII. Revisions	Pg 9. SECTION UNDER REVISION. NEW CONTENT TO BE RELEASED PRIOR TO THE RELEASE OF MAPP HHTS UPDATE 4.7 DECEMBER 2024. Given Section VII. Is missing, can the state wait to implement the policy until that guidance is added so we don't have to revise policies multiple times within a 2 month period?	The Department anticipates issuing this policy without Section VII, which will then be issued shortly thereafter. This policy will go into effect January 1, 2025.
Fair Hearing Representative	Please confirm the CMA can represent the HH at the Fair Hearing as they are more equipped to explain the case and findings than the HH. If the CMA cannot attend, then the HH can but we require the CMA. The policy states HH (reminder, CMA is the one being paid the monthly PMPM to do these activities, not the HH). We do manage the process and confirm the packets are submitted and the CMA is prepared for the FH but we expect them to attend it.	Policy is adjusted to include citation regarding who may be present at the fair hearing – refer to 18 NYCRR 358-5.7. Health Homes/C-YES are responsible to ensure that an appropriate representative is selected to attend and present at the Fair Hearing.
Graduation	Pg. 6 If a determination is made to disenroll a Health Home (HH) member or upon a member's successful completion of the Health Home (HH) program, timely and adequate notice by means of Form DOH-5235 is required before the Health Home (HH) can take any action. Please confirm if DOH includes graduation from the HH program as a disenrollment reason requiring a NOD. Page 6, under B. indicates "upon a members' successful completion of the HH program" as a reason but we consider that a voluntary disenrollment if they are in agreement that they have met their goals and choose to disenroll.	Successful completion could be through agreement of the member and therefore, is a voluntary disenrollment. In these cases, an NOD would not be issued. However, if the member does not agree with the program's determination of successful completion, then an NOD would be issued to member.
Due Dates	Pg 12. If the previous Plan of Care was completed within the last three hundred and sixty-five (365) days, it is still active. Initial appropriateness must be recorded within twenty-eight calendar (28) days of the new active segment (adults and children/youth). But it would still need an updated signature within 60 days to be billable right?	An update to the Plan of Care with signature, is not due until the current Plan of Care's 365 day's expiration date. For example: a Plan of Care was signed on October 15th 2024. The member was moved toward disenrollment and in response, requested a Fair Hearing without Aid Continuing. The final Fair Hearing determination was issued on February 2, 2025, in favor of the member. Therefore, Health Home Care Management services must resume. Initial Appropriateness is due within twenty-eight (28) days. Plan of Care remains in effect until October 2025.
Ruled in Favor of Member without Applicable Appropriateness	If the decision is in favor of the member and we are required to start a new segment for the member and complete the initial appropriateness criteria, what are we selecting if not meeting the appropriateness criteria was the reason we disenrolled them in the first place?	The Health Home and Care Management Agency are to select the most appropriate option from existing Initial Appropriateness criteria. If no applicable criteria can be identified, the Health Home must contact the Department for guidance via the HH BML – subject: Health Home Policy .
Excluded Settings	Pg 8. Individual currently resides in an excluded setting (Residential Treatment Facility, Nursing Home, Incarceration etc.) Regarding individuals in excluded settings, the addition of "with no plan for discharge/release to the community within 30 days" is suggested.	The Department has edited this section of the policy to better define the reasons for denial of enrollment, providing the link to the Appropriateness Codes and Criteria chart, which includes the timelines associated with each appropriateness code.