.January 2020 Update - Nursing Home Residents to be Disenrolled from MLTC plans
CMS has approved the request by NYS Dept. of Health to "carve out" long-term Nursing Home Care from the Managed Long Term Care (MLTC) benefit package. In this change, the State has reversed its former policy that has required, since 2015, all adult nursing home residents receiving Medicaid and Medicare to enroll in or stay enrolled in an MLTC plan. The CMS approval letter, dated December 19, 2019, with the revised "Special Terms & Conditions" of the 1115 Waiver is posted here. Like all Medicaid managed care programs, because consumers are required to use providers in the plan's network, and have other restrictions, the "Special Terms & Conditions" waiver document sets forth many of the terms of the waiver, along with 42 C.F.R. Part 438.
The change requested by the State Dept. of Health was approved by the State legislature in the 2018 state budget. NYS Public Health Law section 4403-f, subd. 7(b)(v)(13). DOH submitted its request to CMS - see New York Medicaid Redesign Team - MLTCP Amendment Request. Many consumer advocacy organizations submitted comments to the State and to CMS which are available on the CMS website here. Click on these links for comments by NYLAG, the Legal Aid Society and other organizations here. Advocacy concerns are summarized here - stay tuned for more developments as this unfolds.
Who is affected by this change and when will the changes be made?
The changes are being made gradually starting in January 2020 as they affect different groups within the 250,000 New Yorkers who are members of MLTC plans, and people who are not yet in MLTC plans but would under the old rules be required to enroll in one. Here are the changes in the order that they are being rolled out.
Group 1 - Preventing new enrollments into MLTC:
WHO: Adults age 21+ who have Medicare, who have been in Nursing Homes for more than 3 months, who have been approved for Institutional Medicaid, and who were not already enrolled in an MLTC plan.
Under the rules since 2015, they would have received a letter from New York Medicaid Choice, the State's enrollment broker for managed care and MLTC, telling them to select an MLTC plan within a specified time, or they would be assigned to one. Now, they are no longer required to enroll in an MLTC plan. Those who had already received a letter about enrollment or who were slated to enroll in an MLTC plan on Feb. 1, 2020 have received letters and calls from NY Medicaid Choice in January 2020, telling them to disregard previous letters about enrolling in an MLTC plan, and canceling the scheduled enrollment. See notices to those individuals here (This PDF contains 2 different notices, the first to people who have been told to select an MLTC plan and the 2nd canceling the enrollment for those whose enrollment in an MLTC plan was scheduled for Feb. 1, 2020).
So -- the last adult dual eligibles in Nursing Homes who were required to enroll in an MLTC plan enrolled effective January 1, 2020. Enrollments starting Feb. 1, 2020 have been canceled. The people in Nursing Homes who were required to enroll in MLTC plans from 2015 through Jan. 1, 2020 are in Group 2, described below.
Group 2 - ALL MLTC MEMBERS will receive This Notice Explaining the Change regarding what happens when an MLTC member is admitted to a nursing home for 3+ months
This general informational notice was reportedly mailed in the week of Jan. 17, 2020 to the nearly 250,000 people in MLTC plans statewide.
Group 3 - DISENROLLING LONG-TERM NURSING HOME RESIDENTS FROM MLTC PLANS:
WHO: Adults age 21+ who have Medicare, who are designated as having a "Long Term Nursing Home Stay" (LTNHS) (> 3 months) who have been approved for Institutional Medicaid, and who are now enrolled in an MLTC plan.
This group includes those who were already in an MLTC plan before admission to the Nursing Home, or who enrolled in MLTC since being admitted to the Nursing Home.These members will be disenrolled from the MLTC plan under a process described below. This process includes being sent a Disenrollment notice, with fair hearing rights. Those in nursing homes currently will be sent this notice under the timeline below. Once disenrolled, the nursing home will bill Medicaid on a fee-for-service basis, rather than billing the MLTC plan. See here about what happens if Institutional Medicaid has not yet been approved by the LDSS/HRA.
d. MLTC members identified as being Long-Term under the preceding paragraph will receive a DISENROLLMENT NOTICE from NY Medicaid Choice. These notices will be mailed out in 2 phases with these projected mailing dates:
RIGHT TO FAIR HEARING: The Disenrollment notices must be sent 10 days prior to the proposed disenrollment. the member has the right to request a Fair Hearing through the NYS Office of Temporary & Disability Assistance. Because the disenrollment notices are sent by NY Medicaid Choice and are not a direct action by the MLTC plan, the member is not required to "exhaust" the plan appeal process first before requesting a fair hearing.
If the resident has already been approved by the local DSS/HRA for Institutional Medicaid, the nursing home will simply switch billing to bill Medicaid fee for service instead of the MLTC plan, and the resident continues paying the NAMI (Net Available Monthly Income).
But what about those who have not yet applied for Institutional Medicaid, or whose 5-year lookback applications are pending at the time of disenrollment? According to the 1/21/2021 Dear Administrator Letter, the nursing home will not be paid for its services until the LDSS/HRA has approved the lookback application, which should be retroactive allowing the nursing home to bill back to the date of disenrollment, provided the application is timely and complete to prove retroactive eligibility. For these individuals, the situation is like the old days before MLTC covered nursing home care, when the nursing home would not get paid by Medicaid until Institutional Medicaid is approved.
The Dear Administrator Letter indicates that the individual may be asked to pay their estimated "NAMI" or Net Available Monthly Income to the nursing home while the Institutional Medicaid application is pending. For those who have an expectation to return home, the application should include the physician's certification of this expectation so that Community Budgeting will be used, allowing the individual to keep the full Medicaid allowance in the community ($895 2020 + health insurance premiums) plus any deductions used in the community (Pooled trust deposit, earned income disregards). See more about Community Budgeting in this article. This Fact Sheet has the NYC forms. The form used outside of NYC is the LDSS-3559. This reduces the NAMI to the same as the spenddown would be in the community.
Concerns about Who Receives the Disenrollment Notices
Concerns about the Content of the Disenrollment Notices and Limited Appeal Rights
" ii. Should an individual prefer discharge—and an assessment of the individual’s medical needs indicates they may be safely discharged to the community—they may remain enrolled in their MLTC plan, while residing in the nursing home on a temporary basis for more than three months, until their discharge plans are resolved and the individual is transitioned out of the nursing home."
See CMS Letter and Special Terms & Conditions, amended Dec. 19, 2019, at page 28 (Emphasis added). The Disenrollment notice DOH has released omits this important right. Without it being in the notice, an ALJ at a hearing would believe the sole issue is whether the individual was in the nursing home for 3+ months.
Moreover, the Disenrollment notice comes too fast. Before that is issued, the member has had no opportunity to voice their preference to return to the community and challenge the plan's implied determination that they cannot be safely discharged home..
Nor is the MLTC Plan ever required to demonstrate that the member cannot be safely discharged to the community - with the services they received previously before being admitted to the nursing home or with any combination of services offered by MLTC plans.
Concerns about Difficulty for Nursing Home Residents to Obtain Home Care Services to Return to the Community
Concerns About MLTC Plans Denying High-Need Members Sufficient Home Care, Forcing Nursing Home Placement and Eventually Disenrollment
Now that the cost of Nursing Home care is no longer borne by the MLTC plan, the plans have more incentive to deny home care to people whose needs re extensive because of severe disabilities. If these individuals end up in a nursing home - because the hours are insufficient to maintain their safety at home, the plan can avoid high-cost care altogether if they run out the clock until the placement lasts 3 months.
Concerns About MLTC Plans Delaying Discharge to "Ride out the Clock" until 3 months have passed
If a member previously received high-hour home care services, or now needs such services, an MLTC plan may well delay discharge so that the member is disenrolled after 3 months of nursing home placement. Procedures are needed to prevent and hold plans accountable for this behavior.
The Dear Nursing Home Administrator letter issued Jan. 21, 2020, gives the procedure for MLTC members who are reaching the 3-month limit in the future. It states that in the second month of admission, the MLTC plans will identify members expected to be admitted for 3 months and send a disenrollment package to NY Medicaid Choice, for NY Medicaid choice to review and send the disenrollment notice. The first such notices will disenroll members effective May 1, 2020. This fast timeline gives essentially no opportunity for an MLTC member who expects the nursing home admission to be temporary to take the steps needed to arrange a dischage plan - before the quick disenrollment notice is issued.
The DOH policy in the Dear Administrator Letter only at the very end mentions that the nursing home should work with the member to explore options for discharge, referencing past DAL letters, such as
Confusion about applying for Institutional Medicaid and Help Needed to Request Community Budgeting for people expecting to return home
Stay Tuned for more news and concerns as the State releases more procedures implementing this major change.
Background on Former Policy - Beginning 2015 that "carved in" Nursing Home Care into the MLTC Benefit.
Since February 1, 2015, there has been a new requirement for nursing home residents in New York City who became "permanent" residents after that date to enroll in Managed Long Term care (MLTC) and "mainstream" Medicaid Managed Care plans, which will now pay for and manage the nursing home care. CMS approved this expansion of MLTC and mainstream Medicaid managed care by letter of Dec. 31, 2014. "Permanent" status does not begin until after Institutional Medicaid eligibility has been approved, following the 5-year lookback. Thus enrolling in a managed care or MLTC plan is not required for initial admission to a nursing home.
The requirement started in NYC in February 2015, and the rest of the state was phased in by October 2015.
Since Jan. 22, 2015 and continuing through September 2015, NYS DOH has conducted a series of webinars on this transition and has issued a series of policy papers and FAQs: All are posted on the MRT 1458 website - scroll to the bottom to:
NYS Dept. of Health Policies --Transition of Nursing Home Populations and Benefits to Medicaid Managed Care
State DOH Administrative Directive 15ADM-01 - Transition of Long Term Nursing Home Benefit into Medicaid Managed Care (April 1, 2015) - to local county Medicaid programs to explain the new procedures for Medicaid for nursing home care: PDF Attachment 1
NEW YORK CITY PROCEDURES and FORMS -
WHAT IS CHANGING FOR NURSiNG HOME RESIDENTS IN NYS?
Adults age 21+ becoming permanent nursing home residents in NYC after February 1, 2015 (estimated) will be required to enroll in managed care plans starting in Feb. 2015 in NYC, in Long Island and Westchester in April 2015. Upstate mandatory enrollment will begin in July 2015 on a rolling basis. The State's presentations above reviewed timelines, network requirements, reimbursement policies and other key areas of concern.
The type of managed care plan in which the individual must enroll depends on whether or not they receive Medicare.
Current nursing home residents are "grandfathered in" - do not have to enroll in managed care plans. Anyone already in a nursing home before Feb. 1, 2015 (and before Oct. 2015 outside of the NYC metro area) will not have to enroll in a managed care plan, and will continue to have Medicaid pay for their nursing home care on a "fee for service" basis. The State says that no one already in a nursing home should have to change nursing homes because the nursing home is not in the plan's network.
If they are required to enroll in an MLTC plan or, if they are not on Medicare, in a "mainstream" managed care plan, they will enroll in a plan that affiliates and pays for their current nursing home.
This requirement will apply only people who, after Feb. 1, 2015, are approved for permanent nursing home placement and institutional Medicaid (after the 60-month lookback review is completed). It will not require enrollment into an MLTC or mainstream plan upon admission to a nursing home.. it will not be required until later, after they apply for and are accepted for institutional Medicaid.
Those who are already enrolled in an MLTC or mainstream Medicaid managed care plan in the community, who come to need long-term nursing home placement after Feb. 1, 2015 (if in NYC, or April 1, 2015 in Long Island and Westchester) or in other areas when they become mandatory, will no longer be disenrolled from the plan when they need nursing home care. They will need to choose a nursing home within the plan's network (or may sometimes change plans) and the plan will still manage their care in the nursing home.
People who were NOT enrolled in an MLTC plan or mainstream plan who come to need nursing home care after Feb. 1st, 2015 (in NYC - rest of state timeline is here) may enter any nursing home of their choice. They do not have to join an MLTC or managed care plan until after they are admitted to the home, apply for and are accepted for institutional Medicaid (which includes the lookback period that screens for transfers of assets).
Phase-In Schedule - The original date was March 1, 2014, which was delayed several times. New schedule here. Concerns raised by NYLAG and other consumer advocates by letter of March 14, 2014, were part of the reason for the delay, with CMS requesting further protections in the state implementation plan. Now, with the ICAN Ombudsprogram and the Conflict-Free Evaluation and Enrollment Center up and running, CMS has approved this expansion of managed care. See more about this in this article in September 2014 news. People who first become permanent Nursing Home residents after the dates below, meaning their eligibility has been determined after a 60-month Lookback application, must enroll in either a Medicaid Managed Care or d Managed Long Term care plan, which one depends on whether they have Medicare.
Advocacy organizations including Medicaid Matters NY, the Coalition to Protect the Rights of New York's Dual Eligibles (CPRNYDE) and other organizations have participated in workgroups, voicing consumer concerns about many aspects of this expansion of managed care.