Medicaid Eligibility – What if the Services aren’t delivered?

After a Medicaid long-term care application is approved and the Plan of Care (PoC) for  home and community-based services is approved (MLTSS-HCBS), the individual may be faced with a wait. The New Jersey Medicaid HMO’s that provide the services for the State of New Jersey are required by the State contract to have a deep enough provider pool to service the need. However, clients are reporting that they are being told to “just wait until we can find someone who can service your area.” This is obviously unacceptable, and the question is, what remedies are available.

Disability Rights New Jersey is a nonprofit organization that has attorneys who are tackling these issues now. Lawsuits may be the only remedy, and there may be procedural football between the HMO and the State Department of Health and Human Services/ Division of Medical Assistance and Health Services (DMAHS). Who exactly bears the responsibility when promised services are not delivered to approved, eligible individuals? Section VIII, Paragraph 53 of the Special Terms and Conditions in the federally-approved Comprehensive Medicaid Waiver says that ” A “Plan of Care” is a written plan designed to provide the demonstration enrollee with appropriate services and supports in accordance with his or her individual needs. All individuals receiving HCBS or MLTSS under the demonstration must be provided services in accordance with their plan.” (emphasis added)

One approach could be that  failure to provide services would be appealed through the administrative “fair hearing” process at the NJ Office of Administrative Law.  The other approach could be that a mandamus action has to be filed in state or federal court.

The individual should be entitled to a Notice of Inadequacy when the HMO claims it has an inadequate provider pool. After a time, the applicant should call the HMO if services are not forthcoming. If the HMO reports network inadequacy as the reason, then the approved individual can (1) contact the Office of Quality Management and request to be placed into a different HMO or (2) can select a Person-Employed Provider option which would enable them to select their own aide but will add additional obligations on them as a household employer, state plan mn hcbs, or (3) wait some more, or (4) go to a nursing home or (5) borrow money from a friend or family member to hire private care, or (6) consider legal options.

The open question is whether a failure to provide services to an approved Medicaid applicant gives rise to a cause of action through the civil courts to compel the provision of services. Another open question is whether the failure to provide approved services is an adverse action by a government agency that gives rise to a right to an administrative fair hearing under the state’s Administrative Procedure Act (APA). In any event, a person who has been approved for Medicaid Home and Community-based Services who isn’t receiving services in a timely way should consult with elder law counsel to map out their options.

Call us for representation on regarding New Jersey Medicaid applications and appeals … 732-382-6070

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