Health Home Notices of Determination and Fair Hearing Policy #HH0004

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Policy Title: Health Homes & Home and Community Based Services (HCBS) Notices and Fair Hearings Policy
Policy number: HH0004
Issued date: November 10, 2017
Last revised: April 2022; November 22, December 2024
Implementation date: November 22, 2024

Approved by:

Applicable to: Health Homes Serving Adults, Health Homes Serving Children, Care Management Agencies, and Children and Youth Evaluation Service.

This policy supersedes other versions, guidance and webinar presentations issued prior to this policy. This policy clarifies the existing Fair Hearing requirements including specific timeframes and due dates associated with issuance of the Notices and documentation requirements. Adherence to these requirements is the responsibility of Health Homes, Care Management Agencies/Care Managers, and 1915(c) Children's Waiver Home and Community Based Services (HCBS) providers by the implementation date noted above.

Purpose: To inform New York State Health Homes (HH), Care Management Agencies (CMA), and Children and Youth Evaluation Service (C-YES) of policies and procedures for issuing notices and participating in the Fair Hearing process for both Health Homes (HH) and 1915(c) Children's Waiver Home and Community Based Services (HCBS).

Content

Definitions

  1. Policy
  2. Notices Used for Health Homes Serving Adults and Health Homes Serving Children and for the Children's Waiver of Home and Community Based Services
  3. Health Homes and Children and Youth Evaluation Services (C-YES) Responsibilities
  4. The Fair Hearing Process
  5. Notices of Determination and Notices of Decision
    1. Notice of Determination for Enrollment into the Health Home Program (DOH 5234)
    2. Notice of Determination for Disenrollment from the Health Home Program (DOH 5235)
    3. Notice of Determination for Denial of Enrollment into the Health Home Program (DOH 5236)
    4. Notice of Decision for Enrollment or Denial of Enrollment from Children's Waiver Home and Community Based Services (HCBS) (DOH 5287)
    5. Notice of Decision for Discontinuance from the Children's Waiver HCBS (DOH 5288)
  6. Aid Continuing
  7. Maintaining Members' Status in the Tracking System for Health Homes and Home and Community Based Services
  8. Agency Conference
  9. Waiver of Appearance
  10. Examination of Case Record - Providing Documentation Prior to Fair Hearing
  11. Decision After Fair Hearing
  12. Health Home (HH) and Health and Recovery Plans/HIV Special Needs Plans Home and Community Based Services for Adults
  13. Training
  14. Quality Management Program
  15. Relevant Statues and Standards
  16. Policies and Resources
  17. Appendix A
Definitions
  • Adequate Notice – Notice issued that meets the specifications of 18 NYCRR § 358-2.22; adequate notice is given when an application for Health Home (HH) or Children's Waiver enrollment is accepted or denied.
  • Aid Continuing -- The right of a Health Home (HH) or Children's Waiver enrollee to have services continue until the Decision After Fair Hearing is issued; Aid Continuing directives are issued by the Office of Temporary and Disability Assistance (OTDA).
  • Agency Conference – An informal meeting that may be requested by the member in addition to requesting a Fair Hearing in which the member may submit additional information in support of their disagreement with the determination on enrollment or continued enrollment in the NYS Health Home (HH) Program or, the Children's Waiver.
  • 1915(c) Children's Waiver Home and Community Based Services (HCBS)- HCBS are community-based services to prevent the need for institutional care such as psychiatric hospitalization, residential treatment, or nursing home admission, or to assist the child/youth to return to their home and community after discharge from an institutional level of care. These services serve children/youth from birth up to age of 21 who are found eligible through an HCBS Eligibility Determination. For more information on the Children's Waiver, please visit the Department's Children's Waiver overview page here. For the purposes of this policy, 1915(c) Children's Waiver Home and Community Based Services (HCBS) and Children's Waiver HCBS are used interchangeably.
  • Children and Youth Evaluation Service (C-YES) – The State-designated Independent Entity that conducts the Home and Community Based Services (HCBS) Eligibility Determination for children/youth who need or want HCBS and are not enrolled in Medicaid. The Children and Youth Evaluation Service (C-YES) develops and manages the Home and Community Based Services (HCBS) plan of care for children/youth enrolled in the 1915(c) Children's Waiver Home and Community Based Services who also elect to opt out of comprehensive Health Home (HH) care management and will only receive Home and Community Based Services (HCBS) care management services.
  • Effective Date – the date in which the Health Home will take action as described in the Notice of Decision/Determination (see Definition for Timely Notice).
  • Evidence Packet – Documentation supporting enrollment/disenrollment determinations can include and is 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 Health Home policy(s) governing the program; and, a copy of the notice being challenged. Additionally, the Children's Waiver Eligibility Determination or attempts to complete such Eligibility Determination is included for children under Home and Community Based Services (HCBS).
  • Fair Hearing – A proceeding before an Administrative Law Judge that provides an opportunity for a member and the agency to present evidence in support of a determination that the member does not agree with.
  • Fair Hearing Notice – Notifications sent from Office of Temporary and Disability Assistance (OTDA) to the Department which identify when a Health Home (HH) or Children's Waiver member requests a Fair Hearing and all subsequent activities to include, date Fair Hearing is scheduled for, request for reschedule of the Fair Hearing date, Decision After Fair Hearing, etc.
  • Member/Participant – The individual (both adults and children/youths) enrolled in the Health Home program or with the Children and Youth Evaluation Service (C-YES) for enrollment in the Children's Waiver. The term includes the parent, guardian, legal authorized representative of the member, as applicable. These terms can be used interchangeably.
  • Notice Date – The date the Notice of Determination is issued.
  • Notice of Determination/Notice of Decision – A written notice to a member or potential member of the Health Home's (HH) or Children's Waiver determination of eligibility for enrollment in or disenrollment from the NYS Health Home Program or the Children's Waiver.
  • Quality Management Program (QMP) - a proactive approach that evaluates the ability of Health Homes (HH), Children and Youth Evaluation Services, and Care Management Agencies to provide services to members and its impact and drives improvement in quality and effectiveness of these services. The key elements of a Quality Management Program (QMP) are Quality Assurance and Performance Improvement, processes undertaken by a HH/C-YES to assess its performance in assuring care is maintained at acceptable levels in relation to specifications of standards for service quality and outcomes. Through continuous study, problems are identified, and corrections can be made to improve processes in care management service delivery to support member quality of life.
  • Successful Completion – Occurs when a member has met all of the goals in the Plan of Care and no longer meets the appropriateness criteria for continued participation in the Health Home (HH) or Children's Waiver HCBS.
  • Timely Notice – Per 18 NYCRR § 358-2.23, a timely notice is one that is mailed at least ten (10) calendar days before the date upon which the proposed negative action is to become effective.
I. Policy

The Department requires that Health Homes Serving Adults (HHSA) and Health Homes Serving Children (HHSC), and Children and Youth Evaluation Service (C-YES) establish and maintain policies and procedures to notify members/potential members of their Fair Hearing rights, and their right to participate in the Fair Hearing process if a Health Home (HH) or Children's Waiver HCBS member requests a Fair Hearing challenging enrollment, denial of enrollment, or disenrollment from the Health Home (HH) and/or the Children's Waiver HCBS. In addition, Health Home (HH) and Children and Youth Evaluation Service (C-YES) will have clear and focused training on Medicaid notice requirements and will be required to maintain a Quality Management Program to ensure compliance with specified requirements. Care managers and providers will understand and follow the process for Fair Hearings including who to contact in the event the member/potential member is interested in pursuing a Fair Hearing. Care Management Agencies (CMA) or Children and Youth Evaluation Service (C-YES) will review the Notice of Decision form in its entirety, including Fair Hearing rights within the Notice of Determination/Decision document, with the member and their family.

II. Notices Used for Health Homes Serving Adults and Health Homes Serving Children and for the Children's Waiver of Home and Community Based Services

The Department has developed three notices for Health Homes Serving Adults (HHSA) and Health Homes Serving Children (HHSC) to use to advise a Health Home (HH) member or a potential Health Home (HH) member and/or their parent/caretaker/guardian/legally authorized representative, of the Health Home's (HH) determination on eligibility for enrollment in, continued enrollment, or disenrollment from the Health Home (HH) program. These notices can be found on the Department's Lead Health Home Resource Center page of the Health Home website (under: Forms and Templates) and should be used by all Health Homes serving adults and children.

The Department also developed two (2) notices for Health Homes Serving Children (HHSC), Care Management Agencies (CMA), and Children and Youth Evaluation Service (C-YES) to advise their members or potential members and/or their parent/caretaker/guardian/legally authorized representative of the HHSC Care Management Agencies (CMA) and C-YES determination on eligibility, continued eligibility, or disenrollment specifically for Children's Waiver HCBS participation. The notices for Children's Waiver HCBS can be found under the Forms section, subsection Notice of Decision Forms

The Notices of Determination/Notices of Decision inform the individual of the decision being made, the reason for the decision, their right to a Fair Hearing, how to request a Fair Hearing, their right to access their Health Home (HH) or C-YES file and copies of documents in the case record, their right to Aid Continuing in certain circumstances, and their right to have an Informal Agency Conference with the Health Home (HH) or C-YES.

III. Health Homes and Children and Youth Evaluation Services (C-YES) Responsibilities

A Health Home (HH)/Children and Youth Evaluation Services (C-YES):

  • ensures that the Care Management Agency (CMA)/Children and Youth Evaluation Service (C-YES) has a procedure in place to immediately notify members or potential members and/or their parent/caretaker/guardian/ legally authorized representative upon enrollment, denial of enrollment, or disenrollment from the Health Home (HH) program and/or the Children's Waiver HCBS;
  • issues the appropriate notice of determination/notice of decision as follows:
    • adequate notice of a determination/notice of decision to accept or deny an application for enrollment, within five (5) calendar days of determination or,
    • timely and adequate notice of a disenrollment within five (5) calendar days of determination;
  • maintains a copy of such notice in the member's record;
  • holds an informal Agency Conference with the member and their representative upon request of the member and/or their parent/caretaker/guardian/legally authorized representative;
  • maintains well documented evidence to support enrollment/disenrollment determinations when a Fair Hearing is scheduled as outlined in the Definition Section under Evidence Packet ;
  • provides a copy of the Evidence Packet and other documents for the Fair Hearing to the member or their legally authorized representative upon their request, at no cost;
  • attends the Fair Hearing, be familiar with the case, and have the authority to make binding decisions at the hearing including the authority to withdraw the decision; and,
  • complies with the Decision after Fair Hearing as to enrollment in or disenrollment from the New York State Health Home (HH) Program and Children's Waiver HCBS.
IV. The Fair Hearing Process

The member has sixty (60) calendar days from the date of the Notice of Determination/ Notice of Decision to request a Fair Hearing from the Office of Temporary and Disability Assistance (OTDA). When a Fair Hearing is requested, the Office of Temporary and Disability Assistance's (OTDA) Office of Administrative Hearings (OAH) issues Acknowledgement of Fair Hearing Request form (OAH-4420), the Fair Hearing number assigned, and Confirmation of Aid Status. Office of Temporary and Disability Assistance's (OTDA) Office of Administrative Hearings (OAH) will then issue Notice of Fair Hearing form (OAH-457) to the member, Children and Youth Evaluation Services (C-YES), as applicable, and the New York State Department of Health's - Health Home Team who sends the Fair Hearing notice to the Health Home (HH) and/or Children and Youth Evaluation Services (C-YES), as applicable. This notice provides the Fair Hearing number that has been assigned by Office of Temporary and Disability Assistance (OTDA), as well as the date, time, and location of the hearing. The Notice of Fair Hearing form (OAH-457) will also indicate the Aid status and if the Health Home (HH) or Children and Youth Evaluation Service (C-YES) is being directed to provide Aid Continuing, i.e., to continue providing services unchanged until the Decision After Fair Hearing Notice is issued.

The member has the right to be represented by legal counsel, a relative, a friend or other person, or to represent themselves at a Fair Hearing. At the hearing the member, their attorney, or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, the member has a right to bring witnesses to speak in their favor.

The Health Home (HH)/Children and Youth Evaluation Service (C-YES) ensures that if needed, an appropriate representative of their agency to serve on their behalf, is present at the Fair Hearing1 and attends the Fair Hearing on the scheduled date, time, and location directed on the Notice of Fair Hearing form (OAH-457). If the Health Home (HH)/Children and Youth Evaluation Service (C-YES) has a valid reason, they may request an adjournment by contacting Office of Temporary and Disability Assistance (OTDA), as listed within the Notice via phone, online or, in person at one of the two walk-in locations.

PLEASE NOTE: Simply needing more time may not be sufficient for the Office of Temporary and Disability Assistance (OTDA) to grant an adjournment.

Fair Hearings may be expedited, usually at the request of the member and/or their parent/caretaker/guardian/legally authorized representative, depending on the urgency of the issue(s), and may be held within three days or sooner.

V. Notices of Determination and Notices of Decision
A. Notice of Determination for Enrollment into the Health Home Program (DOH 5234)

The Notice of Determination for Enrollment into the Health Home Program (DOH 5234) notifies the member and/or their parent, legal guardian, or legally authorized representative of their Health Home (HH) enrollment and the commencement of care management services. The notice is mailed to the member along with the Health Home Welcome Letter within five (5) calendar days from the Determination for Enrollment into the Health Home Program.

B. Notice of Determination for Disenrollment from the Health Home Program (DOH 5235)

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 the Notice of Determination for Disenrollment from the Health Home Program (DOH 5235) is required before the Health Home (HH) can take any action. As defined in 18 NYCRR § 358-2.23, timely notice is one that is mailed at least ten (10) calendar days (based on date mailed) before the date upon which the proposed action is to become effective. 18 NYCRR § 358-3.3 outlines the requirements for an adequate notice.

Please note : the Health Home (HH) cannot make any programmatic changes until at least ten (10) calendar days after the Notice of Decision was mailed (refer to 18 CRR- NY 358-2.23).

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. For example:

Notice is mailed June 25th. The ten (10) calendar day period ends July 5th. The disenrollment date is July 31st. Health Home Care Management (HHCM) core services conducted and meeting requirements in June and July are billable.

If the Notice is mailed during a month with only thirty (30) days, then it is mailed by, at the latest, the 20th of the month.

If the Notice is mailed during a month with thirty-one (31) days, then it is mailed by, at the latest, the 21st of the month.

NOTE: Fair Hearing rights are not to be offered when a member voluntarily discontinues Health Home (HH) services. In such cases, no Notice of Decision/Determination is provided to the member. The Health Home (HH) would ensure written notification of disenrollment is issued to the member as per the Member Disenrollment From the Health Home Program policy #HH0007. Should an eligible member want to rejoin a Health Home (HH), the remedy would be to re-enroll if they continue to meet Health Home (HH) eligibility and appropriateness criteria.

C. Notice of Determination for Denial of Enrollment into the Health Home Program (DOH 5236)

During the enrollment process, the individual's eligibility for Health Home (HH) enrollment is verified, including proper Medicaid coverage, Health Home (HH) eligibility, and appropriateness criteria. If they are found ineligible for enrollment, Health Homes (HH) issue the Notice of Determination for Denial of Enrollment into the Health Home Program (DOH 5236) to the individual. The notice will be mailed to the individual within five (5) calendar days from the Determination of Denial of Enrollment to inform the individual that they did not meet the eligibility criteria for enrollment into the Health Home (HH) program and the reason for denial of enrollment.

Refer to the Appropriateness Codes and Criteria chart used for initial eligibility (Adults and Children/Youth) which describes the criteria codes and any associated timelines.
D. Notice of Decision for Enrollment or Denial of Enrollment from Children's Waiver Home and Community Based Services (HCBS) (DOH 5287)

While eligibility determination for the Children's Waiver HCBS is separate and distinct from Health Home (HH) eligibility, the process for issuing a Notice of Decision is the same. Children/Youth may be found to be ineligible for Children's Waiver HCBS but remain eligible for Health Home (HH).

Upon receiving a Children's Waiver HCBS service request/application, the Health Home (HH)/ Children and Youth Evaluation Service (C-YES) care manager needs to determine if the child/youth meet the Children's Waiver HCBS eligibility requirements. If the child/youth does not meet any of the HCBS eligibility exclusion reason (i.e., over the age of twenty-one (21), expected to reside in an inpatient setting for ninety (90) days or more, enrolled in another HCBS waiver, etc.) then the Children's Waiver HCBS Eligibility Determination assessment will be conducted to determine if the child/youth meet the Level of Care (LOC) criteria. Upon signing and finalizing the Children's Waiver HCBS Eligibility Determination within the Uniform Assessment System for New York (UAS-NY), the Health Home Care Manager (HHCM) /Children and Youth Evaluation Service (C-YES) will be presented with an outcome confirming if the child/youth is HCBS eligible or ineligible for the identified Target Population.

The same form, Notice of Decision for Enrollment or Denial of Enrollment in the New York State 1915(c) Children's Waiver (DOH 5287), is sent for both enrollment and denial of enrollment. The Health Home (HH)/Children and Youth Evaluation Service (C-YES) care manager will send the notice form within five (5) calendar days from the completion of the Children's Waiver HCBS Eligibility Determination to the child/family which documents the outcome of the Children's Waiver HCBS Eligibility Determination. For children/youth found eligible, the Home and Community Based Services (HCBS) Eligibility Determination is valid for one (1) year (three-hundred and sixty-five (365) days) from the date of the signed/finalized assessment, which is outlined in the form Notice of Decision for Enrollment or Denial of Enrollment in the New York State 1915(c) Children's Waiver (DOH 5287). This Notice is sent for initial assessments for all children and for children that remain eligible when a reassessment occurs, which will include a new three-hundred and sixty-five (365) days of eligibility.

If the child/youth is determined Home and Community Based Services (HCBS) eligible but a waiver slot is not available, per Capacity Management:
The child/family will still receive a notice from the Health Home (HH)/Children and Youth Evaluation Service (C-YES) care manager of eligibility. Once a slot becomes available, the Department of Health (DOH) Capacity Management will notify the Health Home (HH)/ Children and Youth Evaluation Service (C-YES) care manager and then the Health Home Care Manager (HHCM)/Children and Youth Evaluation Service (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 Children's Waiver HCBS Eligibility Determination if the family wishes to pursue Home and Community Based Services (HCBS) and the Eligibility Determination was signed/finalized over six (6) months. For further information and guidance, please refer to the Children's Home and Community Based Services Manual.

E. Notice of Decision for Discontinuance from the Children's Waiver HCBS (DOH 5288)

The Children's Waiver 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 is found ineligible during the annual Children's Waiver HCBS Eligibility Determination, then the Health Home (HH)/Children and Youth Evaluation Service (C-YES) sends a Notice of Decision (NOD) for Discontinuance in the New York State Children's Waiver (DOH 5288) within five (5) calendar days from the ineligibility determination to the child/family and (10) calendar days (based on date mailed) prior to the action of disenrollment from the Children's Waiver.

NOTE: If an annual Children's Waiver HCBS 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.

VI. Aid Continuing

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 HCBS until the final outcome of the Fair Hearing is determined.

NOTE: Children/youth enrolled in the Children's Waiver HCBS who request a Fair Hearing with Aid Continuing continue to have Care Management as part of the waiver requirements.

VII. Maintaining Members' Status in the Tracking System for Health Homes and Home and Community Based Services

This section reflects the most recent Medicaid Analytics Performance Portal (MAPP)

Health Home Tracking System (HHTS) specification document update and reflects an implementation date of January 1, 2025. For more information, please refer to the Medicaid Analytics Performance Portal Health Home Tracking System File Specifications Document version 4.7.1

The member's segment in the Medicaid Analytics Performance Portal (MAPP) Health Home Tracking System (HHTS) is adjusted according to whether the member requests a Fair Hearing with or without Aid Continuing (AC). If the Department receives notification from the Office of Temporary and Disability Assistance (OTDA) of an order for a Fair Hearing with Aid Continuing (AC) while the member's segment is still active (typically within ten (10) days from postmark of the Health Home notice to the member and before the Health Home (HH) disenrolls the member) the Department will notify the Health Home (HH) and pend the segment with 'Pended for HH Fair Hearing Aid Continuing' effective the first day of the month following the date on which the order was received. If the Department receives notification of a member's request for a Fair Hearing with Aid Continuing (AC) after the segment has been closed (typically more than (10) days after the Health Home notice to the member) the Department modifies (reopens) the closed segment and then pends the member's segment 'Pended for HH Fair Hearing Aid Continuing.'

NOTE:Segments that are 'Pended for HH Fair Hearing Aid Continuing' can only be changed by the Department and cannot be changed by the Health Home (HH).

Care Management Agencies are to continue to serve members that are 'Pended for HH Fair Hearing Aid Continuing' and the pended segments are structured to allow Health Homes (HH) to bill for services which are provided as required by the Office of Temporary and Disability Assistance (OTDA) between the time their Fair Hearings (FH) with Aid Continuing is ordered and the determination by the Administrative Law Judge is issued.

Care Management Agencies may only bill if they provide at least the minimum necessary core services in accordance with the Health Home, Health Home Plus, and/or High Fidelity Wrap policies. Annual Appropriateness (for children) and Continued Eligibility for Services (CES) Tool (for adults) do not need to be completed for segments the Department pends with 'Pended for HH Fair Hearing Aid Continuing.' The Plan of Care is to be completed and uploaded into the Medicaid Analytics Performance Portal (MAPP) Health Home Tracking System (HHTS).

The Department monitors the outcome of Fair Hearings. Upon receipt of the Decision After Fair Hearing, the Department adjusts the pended segment in the Medicaid Analytics Performance Portal (MAPP) Health Home Tracking System (HHTS) to reflect the outcome of the Fair Hearing. The adjusted pend reason codes may then be changed by the Health Home and the Department instructs the Health Home accordingly. The following lists the procedures associated with Decisions After Fair Hearing and the responsibility of the Health Home and Department.

  • If the Decision after Fair Hearing is in favor of a member with Aid Continuing, the Department creates a new 'Pended for Approved Fair Hearing' segment with a pend start date that equals the first of the month during which the Decision after Fair Hearing was received and notifies the Health Home of this change. The Health Home ends this segment on the last day of the month in which the

Decision After Fair Hearing was received and then creates a new active enrollment segment dated the first day of the month after which the Decision is received and continues to serve the member. This action triggers the system to end the 'Pended for Approved Fair Hearing' segment.

  • If the Decision after Fair Hearing is notin favor of a member with Aid Continuing, or if the member withdraws the Fair Hearing Request, the Department will create a new 'Pended for Denied Fair Hearing' or 'Pended for Withdrawn Fair Hearing' segment with a pend start date that equals the first of the month during which the Decision after Fair Hearing was received and notifies the Health Home of this change. The Health Home ends that segment on the last day of the month after the month in which the Decision is received.
  • If something changes with the member's status while 'Pended for HH Fair Hearing Aid Continuing' that would normally result in the Health Home closing the member's segment, the Health Home contacts the Department via the Fair Hearing Bureau Mail Log before taking any action. If the Department agrees that the member's segment should be closed prior to the member's Fair Hearing disposition, the Department creates a new 'Pended for Administrative Change' segment with a pend start date that equals the first of that month. The Health Home then ends that segment on the last day of the month in which the notice is received.

If the member requests a Fair Hearing and the Office of Temporary and Disability Assistance (OTDA) does not order Aid Continuing (AC), the Health Home is not required to provide services to the member while the member is waiting for their Fair Hearing. If the Decision After Fair Hearing finds in favor of the member, the Health Home (HH) follows the final decision of the Administrative Law Judge. The Department instructs the Health Home to create an active segment on the first day of the month after which the Decision After Fair Hearing (FH) is issued.

In these instances, the existing consent remains valid. 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). If the Health Home is unable to identify an applicable Initial Appropriateness criterion, the Health Home is to contact the Department for guidance via the Fair Hearing Bureau Mail Log. A new Continued Eligibility for Service (CES) Tool is required three hundred and sixty-five (365) days after opening the new segment (adults). For children/youth, annual appropriateness must be documented in the member's record. For the Children's Waiver Home and Community Based Services, the Eligibility Determination must be completed within three-hundred and sixty-five (365) days from the previous Children's Waiver Home and Community Based Services, Eligibility Determination, regardless of whether it was an ineligible determination. If the original Notice was issued because the member no longer met continuing eligibility criteria, the Health Home contacts the Department Fair Hearing Bureau Mail Log for guidance on completing Initial Appropriateness for the new active segment.

For additional guidance on edge case scenarios for members 'Pended for Approved Fair Hearing,' please refer to Appendix A of this document for a list of life-events alongside the responsibilities of the Department and the Health Home.

Special Note at the time of this policy revision (December 2024):This policy may be amended once New York State is no longer required to provide enhanced access to Fair Hearing processes following the COVID-19 Public Health Emergency. For more information, please refer to Fair Hearing e14 Approval.

VIII. Agency Conference

Pursuant to 18 NYCRR § 358-3.8, at any reasonable time prior to the Fair Hearing, the member can request an informal Agency Conference with the Health Home (HH)/Children and Youth Evaluation Service (C-YES). If the member requests an Agency Conference, the Health Home (HH)/Children and Youth Evaluation Service (C-YES) arranges for a meeting with the member and/or their representative or anyone they choose (friend, family, attorney, neighbor etc.) and allow the member to submit additional information and review the Health Home's (HH)/Children and Youth Evaluation Service(C-YES) determination on enrollment or disenrollment from the Health Home (HH) Program or Children's Waiver HCBS.

The Health Home (HH)/Children and Youth Evaluation Service (C-YES) can withdraw its determination and enroll or re-enroll the member. If the Health Home (HH)/Children and Youth Evaluation Service (C-YES) decides to uphold its initial determination, the member will still be entitled to have the initial determination reviewed through the Fair Hearing process.

IX. Waiver of Appearance

Under certain circumstances and no later than five (5) calendar days before the hearing date, the Health Home (HH)/Children and Youth Evaluation Service (C-YES) may request a waiver of appearance from Office of Temporary and Disability Assistance's (OTDA). If Office of Temporary and Disability Assistance (OTDA) grants this request, the Health Home (HH) can submit a written Evidence Packet instead of appearing at the hearing location. Waiver requests will be reviewed and granted on a case-by-case basis. Blanket waivers of appearance will not be granted; however, if the agency contact does not receive a telephone call from the Office of Administrative Hearings (OAH) prior to the hearing date indicating otherwise, it will be presumed that a waiver has been granted.

The waiver request contains the primary and back-up contact person's names and telephone number/s. The waiver request also contains the fair hearing number, date of hearing, and a summary of the specific facts relevant to the issue under review at the hearing.

For proper inclusion in the fair hearing record, the waiver request and Evidence Packet should be submitted immediately upon notification of the hearing request.

X. Examination of Case Record - Providing Documentation Prior to Fair Hearing

Health Homes (HH)/Children and Youth Evaluation Service (C-YES) provide complete copies of its documentary evidence (Evidence Packet) to the Administrative Law Judge (ALJ). The Evidence Packet includes substantiation to support enrollment/disenrollment determinations made by the Health Home/Children and Youth Evaluation Service (C-YES) for success in defending its actions (refer to Definition section for the Evidence Packet). Evidence Packets are sent via the Office of Temporary Disability Assistance's (OTDA) secure portal, Upload.NY.gov. For more information regarding use of Upload.NY.gov portal, refer to Office of Administrative Hearings (OAH) Transmittal 22-02 (September 1, 2022).

At any reasonable time prior to the Fair Hearing, the member and/or the member's authorized representative has the right to examine the contents of the member's case record. The Health Home (HH)/Children and Youth Evaluation Service (C-YES) provides copies of this Evidence Packet to the member and/or their authorized representative, upon request.

If the member or their authorized representative needs additional documentation to prepare for the Fair Hearing, the Health Home (HH)/Children and Youth Evaluation Service (C-YES) will provide the requested documentation within a reasonable time prior to the fair hearing date. If the member's request is made less than five (5) business days before the hearing, the Health Home (HH)/Children and Youth Evaluation Service (C-YES) provides such copies no later than at the time of the hearing. Case file documents should be mailed only if the member specifically asks that they be mailed. If there is insufficient time for such documents to be mailed and received before the scheduled date of the Fair Hearing, the documents may be presented at the hearing instead of being mailed.

Documents are provided without charge to the member and/or their legally authorized representative.

XI. Decision After Fair Hearing

When the Decision After Fair Hearing is issued, it is binding upon the Health Home (HH) to comply in accordance with 18 NYCRR § 358-6.4.

Decision in Favor of the Member:

With Aid Continuing:
If the Decision after Fair Hearing is in favor of the member, then services continue to be provided to the member and the Health Home/Children and Youth Evaluation Service (C-YES) continue to follow program policies.

Without Aid Continuing:
If the Decision after Fair Hearing is in favor of the disenrolled member, the Department notifies the Health Home to open a new enrolled segment effective the first day of the month after which the Decision After Fair Hearing is received, and resume serving the member. In these instances, the existing consent remains valid. 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). A new Continued Eligibility for Services (CES) Tool is required three hundred and sixty-five (365) days after opening the new segment (adults). For children/youth, annual appropriateness must be documented in the member's record. For the Children's Waiver HCBS, the Eligibility Determination must be completed within three-hundred and sixty-five (365) days from the previous Children's Waiver HCBS Eligibility Determination, regardless of whether it was an ineligible determination.

NOTE: In instances when the decision after the Fair Hearing is in the member's favor but the reason for the Notice being issued to the member was due to lack of appropriateness criteria for continued Health Home (HH) enrollment, the Health Home (HH) notifies the Department via the Health Home BML subject: Health Home Policy for guidance on next steps.

Decision is not in Favor of the Member:

With Aid Continuing:
If the Decision after Fair Hearing is not in favor of the member, then the Health Home (HH)/Children and Youth Evaluation Service (C-YES) care manager notifies all involved professionals of the disenrollment from the Health Home program and Children's Waiver HCBS, if applicable. Refer to the Member Disenrollment From the Health Home Program Policy HH0007 for disenrollment procedures. NOTE: since the final decision was made by the Administrative Law Judge (ALJ) a new Notice of Determination/Decision would not be issued.

Without Aid Continuing:
If the Decision after Fair Hearing is not in favor of the disenrolled member, then the case remains closed, and documentation of the Fair Hearing decision is maintained in the member's record.

If the member does not feel the Health Home (HH)/Children and Youth Evaluation Service (C-YES) has complied with the Fair Hearing decision within a reasonable time after receiving the decision, the member may submit a Compliance Complaint to the Office of Temporary and Disability Assistance (OTDA) to be investigated.

Either party may request that the Office of Temporary and Disability Assistance (OTDA) reconsider the Decision After Fair Hearing if the party feels there has been an error in law or fact. A request for reconsideration is sent to the Office of Temporary and Disability Assistance's (OTDA) Litigation Mailbox at:litigationmail.hearings@OTDA.NY.GOV or faxed to (518) 473-6735. While the reconsideration is under review, the Decision After Fair Hearing remains in effect. The Office of Temporary and Disability Assistance (OTDA) will notify the party of the result of its review, and if applicable, that it is correcting an error of law or fact in the decision, and/or reopening the hearing.

XII. Health Home (HH) and Health and Recovery Plans/HIV Special Needs Plans Home and Community Based Services for Adults

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.

XIII. Training

Health Homes (HH) provide training to Care Management Agencies (CMA)/care managers on the Fair Hearing process, to include but not limited to:

  • Health Home (HH)Care Management Agency/Manager roles and responsibilities in the Fair Hearing process
  • Notices of Decision/Determination issued
  • Agency Conferences
  • Fair Hearing Requests
  • Aid Continuing
  • Disenrollment/Continued Enrollment procedures
  • Documentation needed to support enrollment/disenrollment determinations
  • Decision after Fair Hearing
XIV. Quality Management Program

Health Homes (HH) have a quality assurance process in place to ensure that Health Home Care Managers (HHCM) and Care Management Agencies (CMA) comply with Health Home (HH) policies and procedures (Please see Health Home Quality Management Program HH0003 policy). Quality indicators are to include, but are not limited to:

  • The Health Home (HH) issued a correct and complete, timely and adequate notice to the member
  • The Health Home (HH) tracks and monitors Fair Hearings requests filed against the Health Home (HH)/Care Management Agency (CMA):
    • Fair Hearing Requests with Aid Continuing
    • Fair Hearing Request without Aid Continuing
  • The Health Home followed protocol regarding member disenrollment or continued enrollment determinations
  • The Health Home tracks the number of decisions after Fair Hearings:
    • in favor of the Health Home (HH)/ Care Management Agency (CMA)
    • in favor of the member
      • Reason for unfavorable decision
      • Are there similar issues that prompt a Fair Hearing that require technical assistance to the Care Management Agency (CMA)?
  • The Health Home (HH) provided the Evidence Packet to the member and/or their authorized representative, upon their request.
  • The Health Home (HH) provided additional information to the member and/or their authorized representative, upon their request.
XV. Relevant Statues and Standards
  • 18 NYCRR Part 358
  • §365-l NYS Social Services Law
  • §2703 of the Patient Protection and Affordable Care Act (Pub. L. 111-148)
  • §1945(h)(4) of the Social Security Act
  • NYS State Plan Amendments #11-56, 12-10, 12-11 (Health Homes for Individuals with Chronic Conditions)
  • NYS State Plan Amendment #15-0020 (Health Home Eligibility Criteria for Children)
  • OTDA Office of Administrative Hearings (OAH) Procedures Transmittal #13-02, Waiver of Personal Appearance Instructions for Agencies
  • MHY § 9.60 Assisted Outpatient Treatment.
XVI. Policies and Resources
XVII. Appendix A
Scenarios For Members 'Pended for FH Aid Continuing'
Life Event Health Home's Role Department's Role
Member Dies Notifies the Office of Temporary and Disability Assistance (OTDA) and the Department. Modifies the member's pended segment and instructs the Health Home on how to proceed.
Care Management Agency No Longer Able to Serve Members If the Care Management Agency is no longer able to serve members, the Health Home assigns to another Care Management Agency to receive the same services. Consults with Health Home as needed or requested.
Member 'Pended for Approved Fair Hearing' Requests Service from a New CMA/HH. Work with the member to find an appropriate Care Management Agency. Consults with Health Home as needed or requested.
Change in Member's Client Identification Number (CIN) Notifies the Office of Temporary and Disability Assistance (OTDA) and the Department of this change. Modifies the member's pended segment as needed and instruct the Health Home on how to proceed with the new segment in the Medicaid Analytics Performance Portal.
Excluded Settings (Lessthan six (6) months) Maintains the member's 'Pended for HH Fair Hearing Aid Continuing' status.
Health Homes are only to bill as allowed for each specific type of excluded setting and follow all required steps as outlined in the Continuity of Care policy.		 Consults with Health Home as needed or requested.
Excluded Settings (Morethan six (6) months) Maintains the member's 'Pended for HH Fair Hearing Aid Continuing' status. The Health Home is to issue an NOD as per Member Disenrollment From the Health Home Program Policy HH0007, including issuance of Notice of Determination for Disenrollment (DOH-5235), but the member is not to be disenrolled

For more information, please refer to GIS 24 DC 008 (Continuing Demonstration Project on Allowing or Requiring Fair Hearing Appearances by Written, Telephonic, Video, or Other Electronic Means) and 18 NYCRR 358-5.5 (Abandonment of a request for a fair hearing).		 Modifies the member's pended segment as needed and instruct the Health Home on how to proceed.
Diligent Search Efforts (Lessthan three (3) months) Maintains the member's 'Pended for HH Fair Hearing Aid Continuing' status.
Health Homes are only to bill as allowed for Diligent Search Efforts per the Continuity of Care policy.		 Consults with Health Home as needed or requested.
Diligent Search Efforts (Morethan three (3) months) Maintains the member's 'Pended for HH Fair Hearing Aid Continuing' status. The Health Home is to issue an NOD and follows disenrollment procedures per the Member Disenrollment From the Health Home Program Policy HH0007, including issuance of Notice of Determination for Disenrollment (DOH-5235), but the member is not to be disenrolled.

For more information, please refer to GIS 24 DC 008 (Continuing Demonstration Project on Allowing or Requiring Fair Hearing Appearances by Written, Telephonic, Video, or Other Electronic Means) and 18 NYCRR 358-5.5 (Abandonment of a request for a fair hearing).		 Modifies the member's pended segment as needed and instruct the Health Home on how to proceed.  

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1. 18 CRR-NY 358-5.7 Defines who may be present at the Fair Hearing. 1