PHLP and other legal services organizations are hearing from numerous individuals across Pennsylvania who are being terminated from the Community Health Choices (CHC) waiver because the Office of Long-Term Living (OLTL) has determined they no longer meet the clinical eligibility requirements to qualify. Impacted individuals can and should appeal these terminations! People who appeal right away after they get a termination notice are able to keep their waiver services during the appeal process.
These clinical eligibility terminations are happening for the first time since CHC started in 2018. Unfortunately, the process for these terminations and appeals is complex, and has resulted in many CHC participants experiencing gaps in coverage and care, despite filing timely appeals that should keep their benefits and services in place. Moreover, people impacted by the terminations are confused about the notices they are receiving and why this action is happening. Advocates have raised problems and concerns about this process with OLTL.
We want to make readers aware of this issue, provide information about notice and appeal rights, and give tips to help people challenge these CHC waiver terminations. Stay tuned to PHLP’s Resource Library for consumer education materials that will help people with these terminations and appeals. We will update readers about any updates or developments in future newsletters.
To initially qualify for the CHC waiver program, people must meet clinical as well as financial eligibility criteria. A person is considered clinically eligible if they are assessed and found to be “Nursing Facility Clinically Eligible” (NFCE). The NFCE determination is based on 1) an assessment process completed by Aging Well, through the local Area Agencies on Aging and 2) a Physician’s Certification form confirming that someone is NFCE.
The assessment process, known as the Functional Eligibility Determination (FED) process, uses a tool to gather information about the person’s cognitive and physical functioning and assigns a score to measure limitations and need for help with daily activities. Scores in the following areas are then translated into a determination of NFCE or nursing facility ineligible (NFI): cognitive functioning and/or memory problems; the level of help someone needs with certain daily activities such as bathing, dressing, personal hygiene, walking, using the toilet, eating, and managing medications; bowel incontinence; and behaviors such as wandering.
Once someone is approved for the CHC waiver, they have another, longer assessment by the CHC service coordinator to develop their person-centered service plan (PCSP). The person’s CHC insurer uses information from the assessment and the PCSP to determine what waiver services to approve.
At least once a year, CHC waiver participants must have their waiver eligibility reassessed to see if they still meet clinical and financial eligibility requirements. Clinical reassessments are done by the CHC participant’s waiver service coordinator. Reassessments can happen more than once a year if, for example, if someone has a hospitalization, has a change in condition or circumstances, or requests more help or different waiver services. CHC assessment and reassessment information is shared with Aging Well, which translates the CHC assessment into a finding of either NFCE (making them eligible) or NFI (making them ineligible).
If someone is found to no longer be NFCE based on the CHC plan’s assessment or reassessment, then an updated Physician Certification is requested. If the Physician Certification disagrees with the assessment finding of NFI, then OLTL’s medical director reviews the case to make the final determination about whether or not someone is NFCE.
More details about the reassessment process can be found in this Level of Care Redetermination Process Operations Memorandum.
Right to Notice Before Termination
CHC waiver participants who no longer meet the NFCE criteria to stay in the CHC waiver should get two notices before benefits end: one from OLTL saying they no longer qualify for the CHC waiver, and one from their local County Assistance Office (CAO) telling them if their Medicaid benefits are changing or ending. Both notices should be mailed at least ten (10) days before the decision takes effect and both notices should include information about appeal rights and appeal deadlines.
These multiple notices can be confusing. The CAO notice does not mention waiver, and people may not realize that their Medicaid is changing or ending because they no longer clinically qualify for the CHC waiver. The two notices may have different mail dates, different effective dates, and different deadlines to appeal in order to keep their CHC waiver during the appeal process.
The procedures for notifying participants of eligibility determinations and appeal rights is detailed in this Operations Memorandum.
CHC participants have a right to appeal terminations of their CHC waiver, regardless of whether their notice is from OLTL saying they no longer qualify for the CHC waiver or from the CAO saying their Medicaid benefits are changing or ending. The general appeal timeframe for both notices is within thirty (30) days of the notice mail date. However, if someone files an appeal before the date that the decision takes effect (this date is printed on the notice), they should keep their CHC waiver coverage and services in place during the appeal process. People who appeal after the decision takes effect will only get the waiver back later if they later win their appeal, get a new assessment that finds them NFCE, or reapply and re-qualify.
Unfortunately, filing quick appeals is not the safety net it should be. PHLP has spoken with people who appealed well within the timeframe to keep their benefits in place but had their CHC waiver terminated anyway. People have also experienced delays getting their waiver benefits turned back on or getting back into their CHC plan after appealing timely. These problems have led to service disruptions and the loss of caregivers.
Tips for Challenging CHC Waiver Terminations
- People should appeal both the OLTL and CAO notices as soon as possible after getting them!
- Appeals must be made in writing and the notices should include the proper appeal form to complete. If there is no appeal form with the termination notice, someone can write a letter to appeal.
- It is not necessary to give all the reasons someone disagrees with the waiver termination when appealing. At the hearing, the participant will have the chance to tell the judge why they think the decision to end their CHC waiver is wrong and why they still need waiver services.
- Appeals of the OLTL termination notices should be mailed to the Independent Assessment Entity at P.O. Box 60010, Harrisburg, PA 17106 or emailed to firstname.lastname@example.org.
- Call the Independent Assessment Entity at 1-888-204-0946 one week after filing the appeal to confirm it has been received and processed.
- If the appeal was mailed or emailed within 10 days of the notice mail date (or before the effective date of the decision, whichever is later), ask if waiver benefits will stay on during the appeal.
- Appeals of CAO termination notices can be mailed, dropped off, or faxed to the local County Assistance Office.
- Call the local County Assistance Office or the Department of Human Services Statewide Customer Service Center at 1-877-395-8930 one week after filing the appeal to confirm that the appeal has been received and processed.
- If the appeal was mailed, faxed, or dropped off before the effective date on the CAO notice (generally 15 days from the mail date), ask if waiver benefits will stay on during the appeal.
- Contact the Independent Assessment Entity at 1-888-204-0946 to file a complaint if the appeals were filed before the notice effective dates but the CHC waiver is not staying on.
- Mail appeals in a way that provides proof of mailing from the post office and save the receipt. The receipt can help show someone appealed in time to keep their CHC waiver.
- Keep copies of the appeal forms submitted – taking a picture of the completed and signed form through a smart device works. Also keep notes about how the appeal form was submitted, the date it was submitted, and any follow up calls made about the appeal.
- Do not withdraw the appeal before the hearing or at the hearing unless or until there is:
- confirmation that the participant is now NFCE and therefore continues to qualify for the CHC waiver; OR
- there is an agreement to have a reassessment done while the CHC waiver continues.
Preparing for the Hearing
- Contact the Independent Assessment Entity at 1-888-204-0946 to request a copy of the most recent assessment. Also ask for the “desk template” that compares a previous assessment(finding NFCE) and the new assessment (finding the person to no longer be NFCE).
- Review the assessment and identify where the answers are incorrect based on current functioning. Pay special attention to the parts of the assessment that address cognition and memory, mood and behavior, and functional status.
- If the assessment that led to the ineligibility determination was not done in person, tell this to the judge at the hearing. As of mid-May 2023, all assessments must be done in person, unless the participant requests a telephone assessment after being offered an in-person assessment.
- To get free legal help, call the Pennsylvania Legal Aid Network (PLAN) at 1-800-322-7572 to be referred to the local legal aid program covering their area, or call PHLP’s Helpline at 1-800-274-3258. A legal advocate can provide more targeted advice and/or possibly help at the hearing.