Rochester Business Journal

It is getting harder and harder for people who clearly are the intended beneficiaries of Medicaid to actually get access to nursing home care when they need it. While there are many reasons for this, a significant factor is the delay in processing Medicaid "chronic care" applications by the Monroe County Department of Human Services.

Under federal regulations, a Medicaid application is supposed to be acted upon within 45 days unless a determination of disability is required, in which case the agency has 90 days because of the medical records review required for that. For nursing home Medicaid, most applicants are older than 65, in another category of Medicaid eligibility, so no disability review is required.

My office has three paralegals who do nothing but handle Medicaid applications for clients, and I cannot recall when any of those applications was decided within 45 days. Looking at the records of pending applications, in early February we received a decision for an application seeking coverage as of last April. Two cases are awaiting decision for coverage starting last March, two for May, three for June, two for July. You get the picture.

Needless to say, such delays cause significant cash-flow problems for nursing homes. A few months ago, one of the larger nursing homes had $2.3 million of Medicaid receivables it had not been able to bill because the county had not acted on the applications. That is a lot of money and a lot of deferred cash flow.

The result of such delays is that if someone who needs nursing home care looks to be financially eligible for Medicaid immediately, or likely to be financially eligible in short order, he or she may have great difficulty being admitted to a nursing home of choice. Under the rules of Medicare, a patient leaving a hospital must accept any nursing home placement within a 50-mile radius, so that patient may end up far from family and friends. I have a client who lives in northern Monroe County and whose spouse is now in a nursing home in Livingston County; it is a long way to travel in the winter but well within the 50-mile radius.

So the county's processing delay affects not just nursing facilities (and the hospitals that must continue to care for patients awaiting nursing home placement), but also patients and their families.

It is in the best interest of patients who no longer need acute care that they be discharged from hospitals promptly, and it is in the interest of our frequently full hospitals to have those discharges occur promptly. Ultimately the processing delay can affect all of us if the hospitals are full of patients who are awaiting discharge and blocking access for new admissions.

The problem with rules like the one on 45-day timely processing is that they are not self-enforcing. No fiscal sanction is imposed by the state or federal government for systematically violating that requirement. Unfortunately, the remedy probably will lie with a federal court action, and under the federal law governing such cases, the county probably will end up having to pay the attorney fees of the plaintiffs for what would have been an unnecessary lawsuit if the county had done its job.

Monroe County was the subject of such a case years ago, but the consent decree had a "sunset" provision, so there is no continuing jurisdiction to enforce the timeliness rule in that case. Erie County recently entered into a consent decree in such a case, as did Suffolk County; Steuben County is being sued.

It would benefit everyone in the community if Monroe County were to comply with the federal timeliness regulation soon, averting the distraction and expense of a lawsuit. On the other hand, if poor management, a failure of workers to do their jobs, or civil service or union rules are impeding a solution, maybe a federal court order will be needed to make all stakeholders participate in correcting the problem. One might hope for a rational resolution, but history suggests it may take a federal judge to compel the stakeholders to fix the problem rather than ignore it or obstruct a solution.

The processing delay is a problem even when someone has lived in a nursing home for a while before converting from private payment to Medicaid. But in that case the patient is already settled in long-term care rather than stuck in a hospital, and to some extent the Medicaid conversion creates less of a cash-flow problem for the nursing home, which already has been paid for several months of care at the higher private rate.

The delay is worse for patients who can't get into nursing homes in the first place. The Medicaid program is supposed to provide health care for the poor, and the delay unduly affects patients with the least resources, who do not have the ability to pay privately for a while. What a perversion of priorities.

Rene Reixach is an attorney with Woods Oviatt Gilman LLP, where he concentrates his practice on health law. He formerly was executive director of the Finger Lakes Health Systems Agency.2/12/10 (c) 2010 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or e-mail service@rbj.net.