A Fair Hearing is how to challenge a determination made by a local social services agency (“Agency”). An Administrative Law Judge from the New York State Office of Temporary and Disability Assistance Office (“OTDA”) precedes over the hearing. If successful, the hearing will result in a written decision directing the agency to “correct” the case.

The reason for a Fair Hearing varies from case to case. If the Agency denies a Medicaid application, that is obviously reason to request a Fair Hearing. If the Agency approved only partial coverage, assessed a penalty period, or miscalculated your monthly contribution, these are also grounds for a Fair Hearing.

Timing is Crucial When Requesting a Fair Hearing

When and how to request a Medicaid Fair Hearing depends on whether you are already enrolled in a Medicaid Long Term Care Plan (“MLTC”) when you receive your Notice of Denial. If you are not enrolled in an MLTC, such as when you are initially applying for Medicaid, you must request a Fair Hearing within 60 days of receiving the Notice of Decision.

If you were already receiving Medicaid long term care and your plan reduced or ended your eligible hours, the process is different. You must first make an appeal to your Medicaid Long Term Care Plan (“MLTC”) within 60 days. The MLTC has 30 days to either stand by its original decision or change it. If urgent, you can request a decision be fast tracked and you receive the plan decision within 72 hours. However, you must request this Plan Appeal within 10 days for services to remain unchanged, called “aid continuing.” This allows you to keep receiving the same hours until the Fair Hearing concludes.

If the MLTC stands by its decision, called a “Final Adverse Determination,” you must request a Fair Hearing from OTDA within 120 days. If you do not receive a Final Adverse Determination from your plan, you can ask the OTDA for a Fair Hearing without waiting for decision.

How is a Fair Hearing Initiated?

A Fair Hearing can be initiated by mail, fax or telephone. You will need your Medicaid case number, notice number (if applicable) and the reason for requesting the hearing. The hearing request is processed by the New York State Office of Temporary and Disability Assistance in Albany. The actual hearing is conducted through your local social services agency (for example Suffolk County).

To prepare for a Fair Hearing, you have the right to request an evidence package from the local social services agency. The evidence package will explain why the agency made the determination it did. An evidence package usually contains:

Verification of current Medicaid coverage or eligibility.
Notice of Decision resulting in the request for Fair Hearing.
Certified Hospital and Community Patient Review Instrument.
Case notes.
Your Individual Service Plan.
Plan for Protective Oversight.
Service provider notes/records which serve as documentation of recurring issues, if applicable.
Neurobehavioral assessments and notes, if applicable.
Pages from the Nursing Home Transition and Diversion Program Manual applicable to the case with section and page number(s) noted.
Record of attempts made by the Regional Resource Development Specialist and Service Coordinator to work with the participant to resolve any issues which have contributed to the issuance of the NOD which is the basis for the Fair Hearing.

You’ll need this information should before the hearing so that you have time to review and prepare your response. If you want to submit a written response, it can be sent to the local agency and Albany before the hearing date.

What to Expect at a Fair Hearing?

At the hearing, the representative from the local agency presents the Agency’s case. The Medicaid applicant or recipient is then given the opportunity to respond. Once both sides have stated their position, the Administrative Law Judge may pose questions to each party. Once the record is complete, all written material and the recording of the hearing will be reviewed and a decision will sent by mail.

If you are successful with your Fair Hearing, the local agency will have ten (10) days to comply with the decision. If you are not successful, you have four (4) months to appeal in the New York State Supreme Court. Although you can request a Fair Hearing without an attorney, when the stakes are so high it is a good idea to hire an experienced elder law attorney.