Fair hearing prep checklist when your Medicaid home care hours are cut in New York

This page assumes you already requested a fair hearing, or are about to. If you have not, and the notice is recent, read aid continuing and fair hearings when your home care hours are cut first. That page covers the 10-day window to keep your hours running and the two appeal tracks. This page is about the weeks between the request and the hearing, and the hearing itself.

One fact makes everything else easier: when a plan or district cuts hours it had already approved, the regulation says the agency "must establish that its actions were correct." You do not have to prove you need the old hours. They have to prove you no longer do. Your preparation is about holding them to that.

You have the right to see your case record and to get free copies of everything the plan or district will show the judge. The regulation says you may examine those documents "at any reasonable time before the date of your fair hearing and also at the fair hearing," and that you may request copies of "any additional documents which you identify" to prepare. You can ask "in writing, or orally, including by telephone."

Ask the plan or district, not OTDA. The scheduling notice says to "call or write the local agency regarding whose action you requested a fair hearing." For plan cases, the plan's own reduction notice already promises you can "ask to see the guidelines, medical records and other documents we used to make this decision" and get a free copy.

Ask early. If you ask fewer than five business days before the hearing, the agency may hand the papers over at the hearing itself. For phone and video hearings, OTDA's March 2025 transmittal requires the agency's packet to reach you and OTDA "two business days in advance." If it does not arrive, tell the judge. The regulation lets the judge adjourn, give you a recess to read it, or keep the documents out of the record "where a delay would be prejudicial."

Write down the date, time, and name for every request you make.

The State Department of Health's guidance to Managed Long Term Care plans (MLTC Policy 16.06) says a plan "may not reduce or discontinue an enrollee's PCS or CDPAS unless there is a legitimate reason for doing so." A reduction notice must name "the enrollee's particular condition or circumstance" that changed since the last authorization, "the specific change that has occurred," and "why the services should be reduced." The guidance adds that "boilerplate recitations are inadequate" and that a plan "cannot reduce services as part of an across-the-board action."

Two more lines from that guidance matter at the hearing. A "mistake" in the old authorization must be "a material error that occurred when the prior authorization was made." And a lower score on a new assessment "is not a mistake." So if the notice says only that a new assessment found fewer hours, with no change in your condition, that is the gap to point at.

Read your notice against that list. Does it say what changed? When? Does it match what you and your doctor know? The State's model reduction notice, revised November 2024, has fields for the old hours, the new hours, the effective date, and the specific reason. If those fields are blank or generic, say so at the hearing.

A reauthorization at fewer hours counts as a reduction. The Department's guidance gives the example of a plan moving someone from 10 hours a day to 8 for a new period and calls that "a reduction in services." It is not a denied request for more hours, and the burden stays on the plan.

OTDA's general list is "your scheduling notice, any witnesses you may have and any information that relates to the issue," such as doctor's statements, bills, and photo ID. That list was written for all kinds of cases. For a home care hours cut, the papers that speak to what the plan must prove are:

• The reduction notice, both sides, and the envelope with the postmark.
• The plan's Final Adverse Determination, if you went through a plan appeal first.
• The OAH-4420 acknowledgement (which says whether aid continuing was granted) and the OAH-457 scheduling notice. The notice says in capitals to bring it.
• The previous authorization and plan of care showing the old hours and tasks.
• The assessment records: the nurse's community health assessment and the clinician's exam or practitioner order from the assessment process. Request these from the plan or district under Step 1.
• A statement from the treating doctor or nurse practitioner, dated, describing current needs and, if true, that nothing has improved since the last authorization. OTDA lists "doctor's statements" by name.
• Your own records: a daily log of tasks that need help (bathing, transfers, toileting, meals, medications), falls or hospital visits since the last authorization, and a current medication list. The regulation calls for "books, records and other forms of written evidence." These are suggestions from this site, not an official list.
• Written authorization for any representative who is not a lawyer (Step 4).
• Receipts for travel or child care tied to the hearing, if you want reimbursement. The agency must cover those costs on request.

Send your evidence to OTDA at least two business days before the hearing. The channels OTDA lists are its secure upload site, upload.ny.gov; fax 518-473-6735; or mail to the Office of Administrative Hearings in Albany. Put the fair hearing number on every page or cover sheet. OTDA says there is no secure email option, and its transmittal says "evidence will not be accepted after the hearing is closed." Copies are fine; originals are not required.

You do not need a representative. OTDA says you may have "a lawyer, relative, or friend" help you. If that person is not a lawyer or works for one, they "must have your written authorization to represent you at any conference or fair hearing and to review your case record." File that authorization with OTDA and give a copy to the plan or district. Once they know, your representative gets copies of every notice.

ICAN, at 1-844-614-8800, helps for free with plan appeals and fair hearings. OTDA's own FAQ says you may be able to get a lawyer at no cost through a local legal services office. This site does not name any law firm.

If you are homebound, you can appear through a representative, or ask for a phone hearing with a doctor's note saying you cannot travel. The request form has a box for that and says "do not delay request while obtaining medical."

You have the right "to bring witnesses to present written and oral evidence" and "to ask questions of witnesses," including the agency's. A witness is anyone other than you or your representative who can speak to the facts: the personal assistant who does the care, an adult child who saw the falls, a visiting nurse. Under OTDA's current practice, witnesses "will generally appear by telephone, video, or other means," so make sure each one has the date, the phone number they will be reached at, and a copy of the scheduling notice.

The judge can issue subpoenas "where necessary to develop a complete evidentiary record," but no consumer page explains how to ask for one. If you need records or a witness you cannot get on your own, raise it with ICAN or a legal services office before the hearing.

You have the right to an interpreter "at no charge" if you do not speak English or are deaf, and OTDA asks that you tell them before the hearing date. The request form has a box for it; you can also call 1-800-342-3334. For TDD users, OTDA says to call New York Relay at 711 and ask the operator to reach 1-877-502-6155.

If you have no working phone, OTDA says it "will coordinate alternate means to participate." If you need a private room with a phone, tell OTDA when you request the hearing. You can also ask for an in-person hearing instead of phone or video; the transmittal says an in-person hearing will be held "when the applicant or recipient makes a request" for one.

If your health cannot wait the normal time, OTDA's FAQ says you may ask to expedite a Medicaid hearing, with "a note from your healthcare provider." Personal care denials and discontinuances are also on the regulation's list of cases that get priority scheduling.

Ask for an adjournment only for a good reason, and ask early. OTDA lists an online form, a printable form by fax or mail, the adjournment line 1-877-209-1134, and in person in New York City or Albany. Its web page warns that written requests made less than seven days before the hearing may not be processed in time; the older printed notice says ten days. Either way, "if you do not hear back from us do not assume that the request was granted."

Aid continuing keeps running if the adjournment is granted. If you simply miss the hearing, the request is treated as abandoned unless you ask to reopen with good cause within a year, and your hours can stop in the meantime. Do not skip a hearing without a granted adjournment.

As of OTDA's most recent transmittal, hearings are "generally" held by phone or video. The scheduling notice gives a start time, but you must be available for the whole block: 9 a.m. to 1 p.m. for morning hearings, 1 p.m. to 5 p.m. for afternoon. The judge calls twice, at least ten minutes apart, and the call may show as blocked, private, or a 212, 718, or 518 number. Two unanswered calls can get the request marked abandoned. Do not go to the address printed under the words "TELEPHONE HEARING" unless you need a private phone there.

Here is the sequence the regulation and OTDA describe:

1. The judge, called a hearing officer, opens by explaining "the nature of the proceeding, the issues to be heard and the manner in which the fair hearing will be conducted." Everyone on the line is identified. The hearing is recorded, and only OTDA may record it.
2. The judge asks whether you received the agency's evidence and whether you sent yours. If the agency packet never came, say so now.
3. The agency presents. Its representative must have "reviewed the case," must explain the facts and the specific rules behind the cut, and must have "the authority to make binding decisions," including withdrawing the cut. If the agency asked to appear "on papers only," the judge can still demand a live representative and "may draw a negative inference" if none is available.
4. You or your representative question the agency's witness. Ask what changed, when, and what document shows it.
5. You present your side: your statement, your documents, your witnesses. Court rules of evidence do not apply, but the judge may cut off repetition.
6. The judge may question anyone, "particularly where the appellant demonstrates difficulty or inability to question a witness," and may order an independent medical assessment on a medical question.

OTDA's transmittal puts the stakes plainly: "If the Agency fails to participate and/or does not submit sufficient evidence to OAH and the Appellant, OAH may resolve issues in the Appellant's favor if the Appellant appears for the hearing." Show up, on time, with your papers sent ahead.

If you believe the hearing officer is biased, you may ask at the hearing, on the record, for a different one. The request is reviewed by OTDA's counsel if refused.

The decision comes by mail. The regulation says final action must be taken "in no event more than 90 days from the date of the request for a fair hearing," extended by any postponement you asked for. Be realistic: in February 2025 the Department of Health acknowledged a backlog of "over 10,000 cases," some pending more than a year, and told plans to settle old reduction cases before hearing. If your hearing seems stuck, call OTDA at 1-800-342-3334 and ICAN.

If you win, the agency "should do this forthwith." The decision's cover letter says that if the agency has not acted "within 10 days after you receive this decision," you can send the attached compliance form to OTDA's Compliance Unit or call. OTDA's compliance page also lists an online complaint form and the 1-877-209-1134 line. For plan cases, the Department of Health says the plan must provide the disputed services within 72 hours of receiving the decision if they were not being provided during the appeal.

If you lose, the decision explains how to file a court challenge (an Article 78 proceeding) within four months. And if you had aid continuing, you "may have to pay back" Medicaid for the extra hours. For district cases, the Department waived that repayment for aid continuing granted through December 31, 2025; whether that waiver was extended is not stated on any page this site found. Ask ICAN.

Your personal assistant's pay follows the authorization. The statewide fiscal intermediary, PPL, extends or end-dates hours to match whatever the plan or district sends after the decision; it does not take part in the hearing. More on that in the CDPAP fiscal intermediary explained.