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MLTC Members in Nursing Homes for 3+ Months to be Disenrolled from MLTC 8/1/20

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Posted: 08 Jul, 2014
by Valerie Bogart (New York Legal Assistance Group)
Updated: 13 Jul, 2020
by Valerie Bogart (New York Legal Assistance Group)

July 2020 Update - Nursing Home Residents to be Disenrolled from MLTC plans August 1, 2020

July 2020 update - Beginning July 10, 2020, about 20,000 MLTC members throughout NYS who have been in nursing homes for three or  more months will receive this notice  telling them they will be disenrolled from the MLTC plan effective August  1, 2020. The State revised an earlier draft of the notices based on a critique by NYLAG and other advocates.  In a Dear Administrator Letter of June 11, 2020, which replaces the one issued in January, DOH has asked nursing homes, plans and the Open Doors program to identify  members actively working on a discharge plan, who will not be disenrolled.  The revised notice gives members an opportunity to request an assessment now, which will put the disenrollment on hold.   If a member requests a Fair Hearing before August 1, 2020, the disenrollment will be put on hold as "Aid Continuing."  

ADVOCACY ALERT:  On July 2nd and June 29, 2020,  NYLAG, Legal Aid Society, CIDNY, Empire Justice Center & other organizations sent  letters to Gov. Cuomo and to DOH demanding the state halt disenrollment of almost 20,000 MLTC members from their MLTC plans because they have been in nursing homes for more than 3 months.  With visitors banned from nursing homes, they'll have no help to appeal - and many will be forced to stay in the nursing homes, at risk of exposure to COVID.  And COVID-19 has harmed people of color disproprotionately - in nursing homes in particular, not only in the overall population.  See NYT article May 21, 2020 and  NPR story April 2020

ADVOCACY TIPS FOR PEOPLE RECEIVING NOTICES IN JULY 2020 

  • Will their families or representatives receive a copy of the notice?  The State has not answered this question, but NYLAG and other advocates fear that they will not.  This means the resident may not get help they need to respond to this notice - as required if they expect to return home with home care.  But YOU can still help the resident take action. 

  • What can a representative or family member do to help someone who may be receiving this notice in mid-July, to make sure they can stay in their MLTC plan in order to obtain home care services needed to return home?   BEFORE AUGUST 1st do one or both of the following:

    1. Request a Fair Hearing  you will not be disenrolled August 1st if you make this request before August 1st. 

    2. Call NY Medicaid Choice to report that you have a pending request for home care services, or a pending appeal or fair hearing, so need to stay in the plan, OR to request an assessment by the MLTC plan to return home.  1 -888-401-6582 (TTY: 1-888-329-1541).  Either way, you will not be disenrolled August 1st. 

If they have any problems requesting an assessment, or reporting a pending request, or other questions about this -- contact ICAN. 844-614-8800    ican@cssny.org

  • What if you are disenrolled from the MLTC plan on August 1st?  You can still return home but it will be more difficult with more delays. 

    • You can re-enroll in the MLTC plan within 6 months of being dis-enrolled, without being required to do a new Conflict-Free Assessment.  This is stated in the Notice to consumers of disenrollment, However, the State has not issued policies yet on issues such as --

      • will the same MLTC plan you were enrolled in before be required to accept your enrollment and provide you with home care services to return home?

      • will the MLTC plan be required to authorize the same amount of hours that you received before?   We think they should be required to under MLTC Policy 16.06 and precedent including Mayer v. Wing.  .

      •  MLTC enrollment is always on the 1st of the month, so if you are ready to return home on the 10th, you will probably not be re-enrolled until the 1st of the following month. 

BACKGROUND: 

In December 2019, CMS 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 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, which states at page 28:  

" 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."

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.  

New enrollment of nursing home residents approved for Institutional Medicaid into MLTC plans already stopped in April 2020.  This is Group 1 below

DOH has notified all nearly 250,000 MLTC members of the change in this informational notice

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 March 1, 2020.   Enrollments starting April 1, 2020 have been canceled.  The people in Nursing Homes who were required to enroll in MLTC plans from 2015 through March  1, 2020 are in Group 2, described below.  

  • NUMBER AFFECTED:    Unknown

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. 

  • NUMBER AFFECTED: Unknown.  In 2018 when this change was first proposed, DOH said 23,000 MLTC members were in nursing homes. This figure has presumably grown, with nearly 256,000 people currently in MLTC plans. 
  1.  MLTC members are identified as "Long Term Nursing Home Stay" (LTNHS) members by the State Dept. of Health along with the MLTC plan, in consultation with the local districts and nursing homes.   See  Dear Administrator Letter of 6-11-2020 asking nursing homes to identify those with active discharge plans. (THis DAL revises an earlier one issued in January 2020.  The disenrollments were delayed by COVID.

  2. The three-month period begins on the first of the month following the date the member has been designated as long-term nursing home stay on the Form LDSS-3559 or state equivalent.  The LDSS-3559 is a form filed by Nursing Homes with local county/NYC Medicaid programs.  NYC HRA uses different forms.  All of these forms we understand are being revised.
  3. Who should NOT receive a disenrollment notice:
    • DOH said that no MLTC member who is actively engaged in planning for their discharge back to the community will be disenrolled.  However, the nursing homes are being asked to identify only those with an approved discharge plan, not members with requests for home care or appeals pending.  THIS IS WHY MEMBERS WHO RECEIVE THE NOTICES and WANT TO RETURN HOME MUST CALL NY MEDICAID CHOICE to request an ASSESSMENT and/or REQUEST A FAIR HEARING  
    • In a "Dear Administrator Letter" (DAL) to Nursing home administrators dated June 11, 2020, DOH gave nursing homes only 5 days -- including a weekend - to send to DOH  a list of residents on the LTNHS stay list who have an active discharge plan.
    • The DAL letter to nursing homes limits those defined as having an "active discharge plan" as those:
      • being assessed by the Open Doors program run by the NYS Association on Independent Living, which is the contract agency implementing   the Money Follows the Person program (which helps people in nursing homes to be discharged to the community), OR
      • those with an active Transition Plan in place with all the required elements (not defined), that has been incorporated into their Discharge Plan, OR
      • the resident has an expected discharge date of 3 months or less, a discharge plan in place with all the required elements, and the discharge plan could not be improved 

If a disenrollment notice is sent to someone working with Open Doors, contact mfp@health.ny.gov. See info on referrals to the Open Doors Transition Center

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 over about a week beginning July 10, 2020.   The notice includes improved consumer rights to call NY Medicaid Choice to request an assesment to return home, which will suspend the disenrollment.  (Compare with the original draft of the disenrollment notice, which NYLAG and other advocates objected to in this letter). 

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.  

e.   WHAT HAPPENS TO the "NAMI" and  MEDICAID PAYMENT FOR NURSING HOME CARE AFTER DISENROLLMENT

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 6/12/20 guidance and 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.  

ADVOCATE CONCERNS 

Concerns about Who Receives the Disenrollment Notices 

  • While DOH states that no one working with the Open Doors/MFP program will receive the disenrollment notice, many more people are working toward being discharged from nursing homes than the number working with Open Doors.  Many people may be working with their families or other advocates toward discharge.  The definition of who has an active discharge plan is very narrow. 
  • How about those with an appeal or Fair Hearing pending against an MLTC plan for denying increased home care services?  Or who have a request for an increase pending with the MLTC plan?  The revised notice allows them to call NY Medicaid Choice to report that these requests or appeals are pending.  But.. with family and other visitors banned from nursing homes, and nursing home staff stretched by the demands of COVID, many residents will not have the wherewithal or support needed to make these calls or request a fair hearing.  
  • Anyone who has requested "Community Budgeting" sometimes known as Rent Retention budgeting, in order to be able to keep enough income to pay rent while they are in a nursing home -- should not receive Disenrollment notices.  
  • Anyone whose nursing home services are still covered by Medicare should not receive disenrollment notices, given that Medicare is generally a short-term rehabilitation benefit.  But - the DOH policy allows disenrollment even if Medicare rehab is ongoing.  
  • There are no explicit requirements that  the MLTC plan indicate when it proposed disenrollment to NY Medicaid Choice that the consumer cannot be safely discharged to the community, whether with the prior discharge plan or any combination of MLTC services, and the reason why.  Where the individual had been enrolled in the MLTC plan prior to the nursing home admission, the plan  is essentially terminating previously authorized home care services, and has the burden of proof as to why the individual is no longer eligible.  MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services
  • Where will NY Medicaid Choice send the notices? If just  to the nursing home - mail may get lost  there or just filed away in their case record?  NYLAG and other advocates have advocated that Notices should be given to the family member or other person designated as their representative for the nursing home care and MLTC.  And should be sent to their homes as well. 

Concerns about Difficulty for Nursing Home Residents to Obtain Home Care Services to Return to the Community

  • People who are "Long Term Nursing Home Stay" (LTNHS)(3" months in a nursing home)  will now be excluded from enrolling in an MLTC plan.  If they want to return home, will they be able to enroll in an MLTC plan?  If they are now excluded, how can they enroll?  Their other option is to apply for Immediate Need personal care or CDPAP services, through their local Medicaid program.  However, those individuals will not be eligible for the important Special Income Standard for Housing Expenses, which reduces or even eliminates the Medicaid spend-down for people enrolling in or staying enrolled in MLTC plans from a nursing home or adult home. 
  • The CMS Cover Letter enclosing the Special Terms and Conditions states that "NH residents will be allowed to re-enroll in an MLTC and return to the community without requiring a CFEEC, if such movement is within 6 months of the … disenrollment."   This letter implies that NY Medicaid Choice must do Conflict free assessments in Nursing homes for people even though they are "excluded" from MLTC because they are LTNHS.  but no Conflict free assessment should be required if less than 6 months has passed since the disenrollment.  

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

Miscellaneous

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  CHANGED FOR NURSiNG HOME RESIDENTS IN NYS in 2015?

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.  

  • MLTC members who only need short-term rehabilitation care, however, may go to any rehab facility of their choice, and are not restricted to facilities in their MLTC plan's network.  The MLTC plan must pay the Medicare coinsurance for the skilled nursing facility (rehab) stay.  SEE DOH Q&A updated 2016   - Question 11-12 under BILLING.  However, once the Medicare-covered stay is over, they must switch to an MLTC plan that includes their preferred nursing home in its network.  If the Medicare stay is less than 29 days, they may get additional days up to a total of 29 days, including Medicare-covered days, under the community Medicaid short-term rehabilitation benefit.  For that care no 5-year lookback application is needed.

  • Mainstream members who need 29 days or less of nursing home coverage are entitled to Medicaid short-term rehab benefits, which covers up to 29 consecutive days under community Medicaid, without needing to do the 5-year lookback Medicaid application.

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.

Consumer Advocacy 

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.

Attached files
item 2020-07-02 Consumer LT GOV NH Disenrollment FINAL.pdf (1.37 mb) Download
item Advocacy Ltr to DOH re economic impact payments for NH and Adult Home residents.pdf (296 kb) Download
item Fact Sheeet on Keeping Income in Nursing Home or After Discharge 2020.pdf (589 kb) Download
item MAP-259d-e-f-g-t Discharge Alert and Related Forms (2015-10) updated forms as of 8-24-19 (259f -648p.pdf (1.27 mb) Download
item Issues in Carve-in Nursing Home Benefit CPRNYDE 10-22-15.pdf (353 kb) Download
item MICSA-NHED Submission Protocol Transition of NH into MMC-MLTC 10-26-15.pdf (794 kb) Download
item LDSS-3559 RHCF Report of Medicaid Recip Admission-Change in Status (2013).pdf (93 kb) Download
item NYMC Notices to NH Residents will not be enrolled in MLTC plans (2 notices).pdf (1.46 mb) Download
item SM-MLTC-NHBC-E-0120 General Info notice.pdf (276 kb) Download
item DU_MLTC_NH_E_1019 Disenrollment notice - NH.pdf (600 kb) Download
item NHBL DAL Final 2020-01-21.pdf (193 kb) Download
item DAL Updated NHBL 6.11.20.pdf (181 kb) Download
item DU Batch Notice 2.27.20 Draft Final.docx (48 kb) Download
item Consumer LT DOH NH Disenrollment 2-10-2020.pdf (322 kb) Download

Also read
item Transfer of Asset Rules in Medicaid -- The Deficit Reduction Act of 2005
item Nursing Home Medicaid Coverage - Basic Financial Eligibility Rules about Income, Resources, and Spousal Protections
item Managed Long Term Care
item Maintaining Community Medicaid Budgeting and SSI Benefits During Temporary Nursing Home Stays
item Medicaid Short-Term Rehabilitation Benefit
item Medicaid Managed Care
item Tools for Choosing a Medicaid Managed Long Term Care Plan
item Appeals & Grievances in Managed Long Term Care - New Rules Since MAY 1, 2018
item Consumer Advocacy on the FIDA Demonstration - Fully Integrated Dual Advantage - Managed Care Covering Medicare and Medicaid Services Starting 2015
item "Immediate Need" Personal Care or CDPAP - Fast-Track Application for Medicaid and Home Care - New Procedures
item Special Income Standard for Housing Expenses: If Discharged from Nursing Homes or Adult Homes & Enroll in or Remain Enrolled in MLTC Plan

Also listed in
folder Medicaid -> Home Care
folder Medicaid -> Medicaid Managed Care
folder Medicaid -> Nursing Homes

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