Last Updated: February 2004

Q. What is a "physical impairment"?

A. A physical impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic, lymphatic; skin; and endocrine.

The phrase physical impairment includes, but is not limited to, such contagious and non-contagious diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; HIV-related diseases; and tuberculosis. This list is illustrative not exclusive.

Q. What is a "major life activity"?

A. Major life activities are defined as functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Q. Are corrective measures (like crutches or glasses) taken into account when determining a physical disability?

A. Under federal law, a disability is determined with reference to any mitigating measures a person uses. Thus, if a person uses any corrective measures (such as crutches, prosthetics, or eyeglasses), how substantially limited he/she is in major life activities would be determined by how the person functions while using those corrective measures.

Q. Are people with physical disabilities exempt or excluded from Medicaid managed care?

A. Not necessarily. However, certain exemptions and exclusions frequently apply to people with physical disabilities. If a Medicaid beneficiary has a physical disability, he/she is entitled to ask for any exemption or exclusion for which that person qualifies, including those which have nothing to do with the disability. (For more information about exemptions and exclusions, see list in Chapter 5A) The following exemptions and exclusions often apply to people with physical disabilities:

Exemptions (people who are not required to join a Medicaid managed care plan, but can do so if they wish):

• Individuals Who Are HIV+
• Individuals Who Are Seriously & Persistently Mentally Ill or Seriously Emotionally Disturbed
• Individuals for Whom a Managed Care Provider Is Not Geographically Accessible
• Pregnant Women Receiving Prenatal Care from a Provider Not Participating in Any Medicaid Managed Care Plan
• Individuals with Chronic Medical Conditions Who Have Been under Active Treatment for at Least Six Months with a Sub-Specialist Who Is Not a Network Provider for Any Medicaid Managed Care Plan in the Service Area or Whose Request Has Been Approved by the SDOH Medical Director Because of Unusually Severe Chronic Care Needs
• Individuals with End Stage Renal Disease (ESRD)
• Residents of Intermediate Care Facilities for the Mentally Retarded (ICF/MR)
• Individuals with Characteristics and Needs Similar to Those Who Are Residents of an ICF/MR
• Individuals Already Scheduled for a Major Surgical Procedure (within 30 Days of Scheduled Enrollment) with a Provider Who Is Not a Participant in the Network of Any Medicaid Managed Care Plan in the Service Area
• Individuals with a Developmental or Physical Disability Receiving Services Through a Medicaid Home and Community Based Services Waiver
• Individuals with a Developmental or Physical Disability Whose Needs Are Similar to Participants Receiving Services Through a Medicaid Home and Community Based Service Waiver
• Participants in the Medicaid Model Waiver (Care-at-Home) Programs
• Individuals Whose Needs Are Similar to Participants Receiving Services Through the Medicaid Model Waiver (Care-At-Home) Programs
• Residents of Alcohol/Substance Abuse Long Term Residential Treatment Programs
• All Homeless Individuals
• Native Americans
• Individuals Who Cannot Be Served by a Managed Care Provider Due to a Language Barrier
• Individuals Temporarily Residing Out of District
• Individuals who are eligible for the Medicaid buy-in for the working disabled and are not required to pay a premium
• SSI (person in receipt of Supplemental Security Income) and SSI Related (disabled, blind or 65 and over)

Exclusions (people who cannot join a Medicaid managed care plan):

• Medicare/Medicaid Dually Eligibles
• Individuals Who Become Eligible for Medicaid Only After Spending Down a Portion of Their Income
• Residents of State Psychiatric Facilities or Residents of State Certified or Voluntary Treatment Facilities for Children and Youth
• Patients in Residential Health Care Facilities at Time of Enrollment and Residents in a RHCF Who Are Classified as Permanent
• Participants in Capitated Long Term Care Demonstration Projects
• Medicaid-Eligible Infants Living with Incarcerated Mothers
• Infants Weighing Less Than 1200 Grams at Birth and Other Infants Less Than 6 Months Who Meet the Criteria for SSI-Related Categories
• Individuals with Access to Comprehensive Private Health Insurance if Cost Effective
• All Children in Foster Care
• Certified Blind or Disabled Children Living or Expected to Live Separate and Apart from Their Parents for 30 Days or More
• Individuals Expected to be Medicaid Eligible for Less Than Six Months (Except for Pregnant Women)
• Individuals Receiving Long-Term Care Services Through Long-Term Home Health Care Programs, or Child Care Facilities (Except ICF Services for the Developmentally Disabled)
• Individuals Eligible for Medical Assistance Benefits Only with Respect to Tuberculosis Related Services
• Individuals Placed in OMH Licensed Family Care Homes
• Individuals Enrolled in the Restricted Recipient Program
• Individuals with a "County of Fiscal Responsibility" Code 99 in MMIS
• Individuals Receiving Hospice Services (at Time of Enrollment)
• Individuals with a "County of Fiscal Responsibility" Code of 97 (OMH in MMIS) or 98 (OMRDD in MMIS)
• Youth in the Care and Custody of the Commissioner of the Office of Family & Children Services
• Individuals Eligible for Medical Assistance Benefits Only with Respect to Family Planning Services and Whose Net Available Income Is 200% or Less of FPL
• Individuals Eligible for Family Health Plus
• Individuals under sixty-five years of age (screened and require treatment) in CDC Breast and/or Cervical Cancer Early Detection Program and need treatment for breast or cervical cancer, and are not otherwise covered under creditable health coverage.
• Individuals who are eligible for the Medicaid buy-in for the working disabled and are required to pay a premium

THE RIGHT TO APPROPRIATE MEDICAL SERVICES

Like all members of managed care plans, a person with a physical disability has a right to have appropriate health care. The Americans with Disabilities Act prohibits discrimination against an individual on the basis of their disability. It says that no individual with a disability can be excluded from or denied the benefits of services, programs or activities of a public entity—including services delivered under contract by private organizations—including Medicaid health plans.

Under the law, the Medicaid health plan may not

• Make site selections for facilities that have the effect of discriminating against a person with a disability;
• Contract with providers in a way that has a discriminatory effect;
• Require people to accept accommodations that they do not want.

Under the law, a Medicaid health plan must:

• Modify its policies, practices or procedures when necessary to avoid discrimination, unless the modification would fundamentally alter the nature of the service or program
• Administer services in the most integrated setting appropriate to the needs of a person with a disability.

For a person with a physical disability, care may not be appropriate for many reasons, including:

• Doctors or other providers are in inaccessible facilities, for example, they have steps at the entrance to their offices, do not have accessible examining rooms or examining tables, changing rooms, weight scales and machines used in the diagnosis of health conditions
• The provider addresses the disability but does not provide routine preventive care or counsel the person with a disability regarding healthy practices such as weight loss, smoking cessation, etc.
• Doctors’ offices may not provide access to American Sign Language interpretation or large print or Braille materials.
• Providers have too little training or experience in dealing with people with a particular disability
• The person’s physical disability makes them need specialized medical care and the primary care practitioner does not have the experience or credentials to treat them effectively

Q. What if a new enrollee with a disability has a relationship with a health-care provider who is not a member of the Medicaid health plan’s network?

A. The Medicaid health plan should permit the person to continue treatment with the doctor who does not participate in the plan for up to 60 days from the effective date of enrollment as long as the plan authorizes it and the doctor agrees to accept the Medicaid health plan’s payment rate and follow its requirements.

Q. What if a managed care plan has no doctors who are experienced at treating people with a particular physical disability?

A. A person with a disability has a right to a health care provider with appropriate training and experience, even if it means that the managed care plan has to find a provider outside their network. If the plan does not have a health care provider within its network with appropriate training and experience to meet the particular health needs, the plan must:

• give the person with a disability a referral to an appropriate provider outside the plan or to a specialty care center outside the plan
• develop and approve a treatment plan , in consultation with the person with the disability (or someone chosen to act for the person), the primary care doctor, and the out-of-network provider

Q. What if a managed care plan has no doctors whose offices are accessible to your client?

A. In this case, the same right to an appropriate provider applies, and your client can request a referral to an out-of-network provider who is accessible, at no additional cost to him/her. See the section on provider's offices and accessibility.

Q. Does your client have to keep getting referrals if his/her physical disability requires him/her to visit a specialist on an ongoing basis?

A. A person with a physical disability who needs ongoing health care from a specialist has the right to get a standing referral to see a specialist. This enables the person to avoid having to request a referral from his/her primary care physician for every visit.

Q. What if the client’s physical disability requires him/her to see a specialist for most of his/her health care needs?

A. The managed care plan must let the client have a specialist as his/her primary care provider (PCP), if the client needs specialized medical care over a prolonged period of time, and:

• has a diagnosis of a life-threatening condition or disease, or
• has a degenerative and disabling condition or disease.

Q. What if the client needs to go to a specialty care center to get the treatment he/she needs?

A. A person with a physical disability who has a serious enough condition to require specialized care from a specialty care center with particular expertise has a right to have a referral to that center. If the managed care organization does not have an in-network specialty center that can treat a person’s needs, then a person should request a referral to an appropriate out-of-network specialty care center.

Q. What special rights apply to people with physical disabilities who are in Medicaid managed care plans?

A. The Medicaid program has a responsibility to make sure that all its features are accessible to people with disabilities. Medicaid managed care plans must do everything that managed care plans do for people who are on Medicaid, plus:

• Educational sessions must be modified if necessary to permit equally effective participation for a person with a disability (for people considering enrolling in managed care). For example, they must be held in accessible places, materials must be supplied in accessible formats, American Sign Language must be provided when identified as a need by the consumer, assistance must be provided to individuals with trouble understanding the information.
• Community Presentations: Not all community presentations need to be held in accessible places. However, at least some presentations must take place in spaces that are accessible to people with physical disabilities. A person with a physical disability should call the NY Medicaid CHOICE Helpline (1-800-505-5678) to find out which community presentations will be held at accessible locations.
• One-on-one counseling: People with physical disabilities have the right to have one-on-one counseling in a location that is physically accessible. When arranging a one-on-one education session, a person with a physical disability should request that the session be held in a physically accessible location.
• For people with physical disabilities, Medicaid Fair Hearings must be held at physically accessible locations: If your client requests a Fair Hearing from Medicaid to resolve a complaint, he/she can ask for it to be scheduled at an accessible location.

These are only some examples of ways that Medicaid health plans must make their programs accessible for people with disabilities. They must do other things as well. For example, if they offer a weight loss program, they must make it equally beneficial for a person with a disability as it is for a person without a disability by having accessible scales.

Q. What accommodations can a person with a disability get from a Medicaid health plan if the individual is blind or has low vision?

A. Some health plans can provide an audiocassette or Braille version of their member handbooks. They should provide large print materials designed for persons with vision impairments. The person with a disability should always tell the member service staff of the plan that he or she is blind or has vision impairments, and ask that they provide large print materials, audiocassettes or Braille versions of information or communicate on a non-visual basis. If an individual has a grievance or an appeal to file against the health plan, the individual can ask them for assistance, particularly in informing the person about the case on an oral basis, or in an alternate format.

Q. What accommodations can a person with a disability get from a Medicaid health plan if the individual is deaf or has a hearing impairment?

A. A person who is deaf or has a hearing impairment is entitled to a free sign-language interpreter for visits to doctors. (A person must request this assistance before the appointment). If the individual has any problems getting an interpreter through the doctor, that person should call his or her managed care plan and ask for their assistance. If problems getting an interpreter continue, the individual should have someone (a consumer representative) call New York Medicaid CHOICE for him/her at 1-800-505-5678 or call the TTY/TDD number at 1-888-329-1541, to complain and get their assistance.

Q. What type of transportation is available to someone with a disability?

A. This will depend on what type of disability it is. All health plans in New York City are paid to provide transportation to doctors and other health care visits. If an individual is unable to use public transportation because of the disability, the health plan will have to pay for whatever type of transportation is appropriate. If the person requires the assistance of an attendant, the health plan will pay for the cost of the attendant’s transportation. The health plan may have certain rules about obtaining this special transportation and may require that the doctor call ahead of time to make the arrangements for this transportation, usually an ambulette.

Q. What if your client is having a problem that concerns more than one of his/her rights?

A. If your client is having a problem receiving appropriate services, his/her rights can be asserted alone or in combination. For example, a person with a physical disability might be unable to find an in-network specialist who can provide adequate service because there is no specialist who has the proper experience to treat someone with his/her disability. In this case, the person should request to have a standing referral to an out-of-network specialist who does have the proper experience to treat someone with his/her disability.

Q. What if your client is unable to get appropriate and timely care and he/she has a physical disability?

A. If a person with a physical disability has a problem getting appropriate and timely care, he/she should report it to the State Department of Health (SDOH). See the resource section for phone numbers. The State Department of Health is responsible for ensuring that every managed care plan offers a network of health care providers that can meet the comprehensive health needs of its enrollees and provide enough appropriate providers for the services covered under its contracts with members. The toll-free number is 1-800-206-8125.

The State must review each managed care plan at least once every three years. Among the criteria that the State should consider at the time of the review is whether the managed care plan can provide appropriate and timely care that complies with the standards of the Americans with Disabilities Act (ADA).

Timely care is especially important to people with disabilities who may become unstable, develop secondary conditions or have a worsening of their condition as a result of delays in receiving appropriate care. It is important that people disabilities know that there are standards for appointment availability:

• Emergency care must be available immediately on presentation at a hospital
• Urgent care must be available within 24 hours of request as clinically indicated
• A non-urgent sick visit must be available within 48 hours to 72 hours of the request
• Routine non-urgent preventive appointments must be available within 4 to 6 weeks of request
• Specialist referrals that are not urgent must be available within 4 to 6 weeks of request
• Initial prenatal care visits must happen within 3 weeks during the first trimester, within 2 weeks during the second trimester and within 1 week during the third trimester
• Adult baseline and routine physicals must be available within 12 weeks from enrollment
• Well child care must be available within 4 weeks of request
• In plan mental health or substance abuse follow up visits (following an emergency or a hospital discharge) must occur within 5 days of a request or as clinically indicated
• In plan non-urgent mental health or substance abuse visits must occur within 2 weeks of request
• Initial primary care doctor visit for newborns must happen within 2 weeks of hospital discharge
• Provider visits to make health, mental health and substance abuse assessments for the purpose of making recommendations regarding a recipient’s ability to perform work when requested by the Human Resources Administration must occur within 10 days of request
• Medicaid health plans must provide access to medical services on a 24 hours a day 7 days a week basis. Individuals must be instructed about what to do if they need care after business hours or on weekends.

Enrollees with appointments should not routinely be made to wait longer than one hour.

The Medicaid health plan has to have providers that are geographically accessible. This means that providers must be available within 30 minutes. However, sometimes a person with a disability needs a provider further from their home, the Medicaid health plan must permit them to select a plan that is further away.

ACCESS TO PROVIDERS

Q. Do the offices of doctors and other providers have to be accessible to people with physical disabilities?

A. A Medicaid health plan does not have to make every clinic and doctor’s office accessible. But it needs to be operated so that a person with a disability is not excluded from participation because a doctor’s office is physically inaccessible or unuseable by a person with disabilities.

Q. What makes an office inaccessible to people with disabilities?

A. Physical accessibility can depend on what a person with a particular disability needs to enter and use in a provider’s office. For example, problems with physical access can include:

• Does the only entrance into the office have stairs?
• Is the doorway too narrow for a wheelchair to pass through?
• Are the travel paths in the office too narrow—because of furniture or room design—for a person in a wheelchair to navigate?
• Are the door handles difficult to open for someone who does not have much strength in his/her hands?
• Does the office have a scale to weigh the person during examination?
• Does the examining table raise or lower?
• Is the door to the examining room wide enough to get through in a wheelchair or scooter?
• Is the door to the bathroom wide enough to get into and are there transfer bars in the bathrooms?

Q. If an office is not physically accessible, does the provider have to make it accessible?

A. Unfortunately, there is no simple answer to whether a particular provider’s office must be physically accessible. Instead, the answer is dependent on a number of factors, including:

• Whether the barriers to access are easy to fix: All providers, regardless of when their office was built or renovated, must remove architectural barriers if it is readily achievable. This means that if a barrier is easily removable without much expense or trouble, e.g., moving a display or table, or changing a doorknob, then the provider must make the change to make the facility accessible.
• The size and financial resources of the provider: A provider who has a larger practice and financial resources may be more readily able to make the office more accessible to people with disabilities.
• When the office was constructed for occupancy or renovated: For newer construction and renovations, the ADA considers it discriminatory to fail to design and construct offices that are readily accessible to and usable by people with disabilities.
  

Q. What should a person with a disability do if a doctor or clinic says that the office or clinic is wheelchair accessible and when the person arrives, there are barriers to access such as stairs or narrow aisles?

A. Complain to the health plan. The person should also complain to New York Medicaid CHOICE or any of the agencies listed at the end of this section. The health plan should investigate the situation, and if the provider’s office is not really usable by people with wheelchairs, the health plan should correct its provider directory so that other consumers will not be inconvenienced. The individual should call the health plan for help in selecting a new provider in this case. The health plan should help the person find an accessible provider, even if it has to refer the individual to an out-of-network provider.

Q. What if the office is usually accessible by elevator but the elevator is broken?

A. Health care providers have an obligation to keep facilities and equipment in working condition if they are required to be readily accessible and usable to people with disabilities. While a provider may have isolated or temporary interruptions in service or access due to maintenance or repairs, the provider cannot indefinitely keep accessible features inoperable.

Q. Can a doctor refer a person with a disability to a different doctor because the person has a physical disability?

A. Not if that is the only reason for the referral. In general, providers may refer a person with a physical disability to other providers only if:

• the required treatment is outside the provider’s practice area, and
• in the normal course of operation, the provider would make a similar referral for a person without the physical disability who requires the same treatment.

For example, an internist may refer a patient with a physical disability to another doctor, if the patient needed cardiac care, and if the internist would make a similar referral for a patient without a disability who needed cardiac care. A doctor who specializes in treating only a particular condition cannot refuse to treat a patient with a disability for that condition. However, the same doctor is not required to treat the patient for a different condition.

FILING A COMPLAINT WITH A GOVERNMENT AGENCY IN THE EVENT OF DISCRIMINATION

To file a complaint with the NY State Department of Insurance, your client can call them, fill out a complaint form, or write a letter to them. Remember to keep a copy of the letter or complaint form and the originals of any documents mailed in with a letter or form.

The NY State Department of Insurance telephone number is 1-800-342-3736. Call Monday-Friday, 9 a.m. to 5 p.m.

If the person speaks a primary language other than English, call 212-480-6426 or 212-480-6422.

The person with a disability can also fill out the complaint form available from the telephone numbers above, or find it on the agency’s internet Web site at www.ins.state.ny.us/complhow.htm

The person can also send a letter, which should include:

• name
• address
• telephone number
• the name of the managed care plan
• policy or claim number
• an explanation of the problem.

Mail a letter or complaint form to: Consumer Services Bureau

NY State Department of Insurance
25 Beaver Street
New York, NY 10004-2319

To find out how many complaints are filed about a Medicaid health plan, call or write to the NY State Department of Insurance, and ask for a free copy of its Annual Health Insurance Complaint Rankings.

WHO TO CALL TO REPORT DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES

*A MCCAP Network Agency