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The attorney filing an initial application for Medicaid home care benefits must gather a plethora of documents to prove eligibility (passport; birth certificate; marriage certificate or divorce decree or death certificate of spouse; lease or deed or coop stock certificate; utility bill; Social Security card; Medicare card; supplemental health insurance card; Social Security award letter; pension statement; supplemental health insurance premium coupon and current financial statements). For a Medicaid nursing home application, in addition, monthly statements for the preceding five years will also be required. These documents can run into the hundreds and even thousands of pages.

It is discouraging to then wait months for a decision on the application. It is even more dispiriting to receive a notice from Medicaid that the application has been denied. It is especially disheartening when the denial is based upon an agency mistake. Many of these errors are the result of routine agency oversights such as account balance not being read correctly; the same account counted twice; or an exempt retirement account counted as non-retirement.

Even if the application is approved, there may be an error in the date that benefits are to commence or in the amount of monthly income attributed to the recipient. There are still others who have already been found eligible for Medicaid benefits and later received a notice that their benefits are to be reduced or terminated.

All of these errors can be challenged by the fair hearing process.

Denial Reduction or Termination

A denial or reduction or termination of benefits must be made in written form and sent to the applicant or recipient. The notice must include the reason for the action, the statutory basis for the decision and for existing cases, the date that the action will be implemented. Such notice is the touchstone in the fair hearing process and is constitutionally guaranteed by Goldberg v. Kelly, 397 US 254 (1970). That Supreme Court decision found that due process required a public welfare agency to provide prior notice and opportunity to have a hearing before benefits could be terminated.

The original decision on eligibility for Medicaid is made by the local county Department of Social Services. To challenge a negative decision, a request for a fair hearing can be made online; by mail; by fax; by telephone or in person (in New York and Albany only). The fair hearings are under the auspices of the New York State Office of Temporary and Disability Assistance (OTDA) and the fair hearing itself is conducted by an administrative law judge (ALJ).

Medicaid home care recipients who receive their services from Managed Long-Term Care Plans (MLTCPs) and wish to challenge decisions (such as to the number of hours of care to be provided) must first make an internal appeal to the MLTCP. They can only request a fair hearing through OTDA after they have exhausted their internal appeal.

A fair hearing must ordinarily be requested within 60 days of the adverse notice. The time within which to request the fair hearing is tolled if the fair hearing notice is defective or notice was not received by the applicant or recipient or their representative.

Aid Continuing

Those who are already eligible for benefits and are notified of a planned reduction or termination of benefits may request that their current benefits remain at the same level until a fair hearing decision is rendered. This is called “Aid Continuing.” They must request a fair hearing with aid continuing within 10 days of the date of the notice. Aid continuing does not apply to initial applications since there are no current benefits in place in that situation. If aid continuing is requested and the fair hearing decision is ultimately adverse to the individual, she or he can be liable for the cost of the benefits that were provided.


The OTDA will send an “Acknowledgement of Fair Hearing Request” which will confirm that the request has been received. This will also indicate whether or not aid continuing was ordered. This usually is issued within two weeks of the date of the fair hearing request.

The acknowledgement will contain a fair hearing number. That number can be used to request that the local agency provide the “evidence package”. That record contains the documents that the local Department of Social Services will submit at the fair hearing. The record should be requested promptly so that it can be reviewed prior to the fair hearing date.

The acknowledgement is followed by a “Notice of Fair Hearing” which sets the date and time and location of the fair hearing. This notice is typically issued two weeks after the Acknowledgement of Fair Hearing Request.

Stare Decisis

Prior to the fair hearing it is advisable to review prior fair hearing decisions on the same issue. The OTDA maintains a fair hearing archive at That data base includes redacted fair hearing decisions starting Nov. 1, 2010 to the present date. Helpful information is also found at the Western New York Law Center ( fair hearing resources section.

The New York Court of Appeals has held that stare decisis applies to administrative hearings, In re Charles A. Field Delivery Serv., 66 N.Y.2d 516 (1985):

The policy reasons for consistent results, given essentially similar facts, are, however, largely the same whether the proceeding be administrative or judicial—to provide guidance for those governed by the determination made … ; to deal impartially with litigants; promote stability in the law; allow for efficient use of the adjudicatory process; and to maintain the appearance of justice …

The Fair Hearing

The fair hearing itself should be treated with all of the formalities of a judicial matter. All necessary legal and issues should be submitted in written brief format and all factual issues should be introduced by documentation or witnesses. The ALJ will not issue a decision as he or she makes recommendation to the OTDA commissioner who issues a written decision. If the fair hearing decision is adverse to the individual, he or she can consider review through appeal to the OTDA. That review is denominated as a request for a reopening of a fair hearing decision. If the appeal to OTDA is unfavorable, judicial review is available through CPLR Article 78.


Counsel must of course master the intricacies of eligibility for the Medicaid program but must also be prepared to challenge agency decisions that are made in error. These outcomes are so common that an attorney with an elder law practice can expect to be engaging in an administrative law, fair hearing, practice.

There are more than six million people currently enrolled in the Medicaid program in New York state. Given the size of the program, perhaps it is not surprising that there are errors made by the agency. The effect upon the individual applicant or recipient can be devastating, particularly if it is a person who is applying and is waiting for benefits to begin. To manage expectations, clients should be advised, before the application is filed, to anticipate that their application may be initially denied erroneously or even after eligibility has been established, but that there is a process to challenge adverse determinations.

Daniel G. Fish is a partner at McLaughlin & Stern.