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NYS Medicaid Cuts 2020-21-22- LOOKBACK Delayed until Jan. 1, 2022 & Medicaid Home Care Changes

14 Apr, 2021

Severe cuts in Medicaid eligibility and access to home care services were enacted in the 2020-21 State Budget on April 2, 2020.  Summary starts here.  This article discusses the two main changes -- the LOOKBACK and the changes in eligibility and assessment of HOME CARE.   

See how to view webinar here.   View updated PowerPoint here (with updates as of 4/15/21) 

See the latest comments filed by NYLAG on various State proposals for implementing these changes - most recently on March 13, 2021.  

NEWS April 2021 - LOOKBACK  DELAYED  until  January 1, 2022

  • In its request to CMS dated March 25, 2021 to amend the 1115 waiver that governs the MLTC program, the State Dept of Health stated that the new "lookback" will apply to new Medicaid applications seeking coverage of community-based long term care services  filed after January 1, 2022.  This is because of protections enacted under the FFCRA Families First Cares Act,  which prohibits states from  restricting eligibility until the quarter following the end of the Public Health Emergency (PHE).  The Public Health Emergency  was  extended  on Jan. 21, 2021, for 3 months to April  21, 2021,  The Biden Administration told State governors  to expect that the PHE will likely be extended through the end of 2021, and that states will receive 60 days advance notice before it ends, allowing States time to plan for "unwinding" the COVID moratorium on case closings, etc.   Under the Trump Administration, the PHE  was extended every 3 months, leaving much uncertainty.   See this Georgetown Health Policy Institute blog about the Biden extension.

  • Once the lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback.  For applications filed before January 1, 2022, transfers of assets after Oct. 1, 2020 will not trigger any transfer penalty because there is no lookback.  Check back to this website for news to see if this extension is confirmed.  

  • See more about how the lookback will be implemented here and in the webinar - link below.

View Recorded Webinar on Lookback and Home Care Changes

NYLAG Evelyn Frank program conducted a webinar on September 9, 2020.   Please note that the webinar says the lookback will start Jan. 1, 2021.  That has since changed to Jan. 1, 2022.

NYLAG COMMENTS Submitted on State Proposals to Implement the Changes -

  • LOOKBACK -- On March 25, 2021, the State submitted a proposal to CMS to amend the 1115 waiver to allow the lookback to apply to MLTC enrollment  (Web) - (PDF) . Comments are due on May 9, 2021, which is 30 days from when CMS posted the proposal online, per its "Completeness letter" dated April 7, 2021 - (Web) - (PDF).   Earlier, NYLAG posted COMMENTS to the State's preliminary proposal to amend the 1115 waiver to apply the LOOKBACK to MLTC enrollment.

  • NEW ADL REQUIREMENTS TO QUALIFY FOR Personal Care, CDPAP, and MLTC:

    • On March 26, 2021 With the April 1st NYS Budget deadline looming,  NYLAG, Legal Aid Society, Empire Justice Center and other organizations sent a letter calling for steps to ensure access to home care - and to avoid nursing home placement - including repeal of the ADL thresholds enacted in last year's budget

    • On March 13, 2021, NYLAG submitted comments to the 2nd round of proposed state regulations that implement the new ADL criteria and assessment procedures.  

    • On Dec. 24, 2020, NYLAG submitted comments to the State's proposed amendment of the 1115 waiver that governs the MLTC program, that would restrict eligibility to enroll in MLTC plans to those who meet the new 2 or 3 ADL criteria. 

    • On Oct. 29, 2020, NYLAG submitted comments to the State's proposed State Plan Amendment that would implement the new ADL requirements for all personal care and CDPAP, whether obtained through the local Medicaid office, an MLTC or Mainstream managed care plan 

    • On Sept. 14, 2020, NYLAG submitted Comments posted here  to  the  proposed state regulations that would implement  the Home Care Eligibility Changes and Changes in Assessments. 

NYS BUDGET SUMMARY - First, the good news -- These 2 cuts were NOT enacted 

  1. Spousal or Parental Refusal  were NOT repealed   (which is explained in this Fact Sheet  pp. 6-7)   - SPOUSAL REFUSAL IS STILL IN EFFECT 

  2. reducing the Spousal Impoverishment resource allowance for couples where one spouse is in an MLTC plan, nursing home, or TBI/NHTDW waiver.  The REsource allowance remains at around $75,000 rather than be reduced to about $25,000

HERE IS THE BAD NEWS: 

There will be a a 2.5-Year Lookback  and Transfer Penalty for Community Based Home Care

Applications filed for Medicaid after  Jan 1, 2022   in order to obtain any community-based long term care service  will have a “lookback” that will  be phased in to eventually be 30 months (2.5 years).    When the law was first enacted in April 2020, the effective date was earlier, but has been postponed several times.  The new date of Jan. 1, 2022 was just announced in State DOH's proposal dated March 25, 2021 to CMS to amend the 1115 waiver to allow requiring the lookback for MLTC enrollment (Web)  (PDF).  

Initially on Jan. 1, 2022 - the lookback will be 14 months, requiring records back to Oct. 1, 2020.  Every month the lookback period will increase by one month until it is 30 months in April 2023. 

Applicant and spouse must submit all financial records during the lookback period, even if the spouse is not applying for Medicaid or is doing a spousal refusal. 

Transfers made during the lookback period could trigger a transfer penalty unless they are exempt transfers.  The length of the penalty will be calculated the same as it is for nursing homes.  In NYC home care would be denied for one month for every $13,037 transferred (2021 - see GIS 20 MA/12). See penalty rate in the rest of the state in GIS 20 MA/12 (2021) (Sec. 13, 14)  See the PowerPoint for more information.\

  • Which services does the lookback apply to? The law specifies home health care services, private duty nursing services, personal care services (which likely include CDPAP), and assisted living program services. DOH may designate others by regulation. Since MLTC plans deliver these services, presumably the lookback will apply to MLTC enrollment.

    • DOH said it did not intend to impose a lookback for the OPWDD, TBI, or NHTDW waivers.  

  • The usual exceptions would apply–transfers to the spouse, transfers by an individual under 65 to a supplemental needs trust, transfer to a disabled child. See exceptions to the transfer penalty for a nursing home here. Since the home is exempt while an individual is living in it, subject to the home equity limit, it is our hope that a penalty may not be imposed on the transfer of a home - but DOH's March 2021 proposal to CMS says transfers of the home would be subject to the same penalties with the same exceptions that apply for nursing home care.  Advocates disagree. Many policies like this will be fleshed out later.

  • The lookback will inevitably cause long delays in processing applications, not to mention compiling the documents needed to apply. It is our view that the Medicaid agencies must comply with the time limits for approvals – generally 45 days, and 90 days if a disability determination is required, and faster for Immediate Need cases. Yet even now, applications often exceed these limits, and this will add more work for the local districts. There are many questions about implementation – this is just the bare bones as we understand it now. 

    • NYLAG and the NYSBA have asked for ATTESTATION to be permitted  for IMMEDIATE NEED CASES.  In the March 2021 submission to CMS, DOH says it will not permit attestation that no transfers wwere made in the lookback period.

Access to Home Care services will be Limited and Require more Hoops to jump through

Note: Current home care recipients are "grandfathered" in – they will not be subject to these new limits. But new applicants will be subject to the restrictions.   Effective date was scheduled to be OCT. 1, 2020 but DOH said on Sept. 8th that won't be til at least Dec. 2020 or later.  Stay Tuned. 

CLICK HERE to see NYS Dept. of Health proposed regulations and requests to CMS to approve these changes, along with NYLAG's comments on these proposals.  

Eligibility for Personal care and CDPAP services will now require the need for assistance for THREE  Activities of Daily Living (ADLs) or dementia. They must be prescribed by an independent physician under contract with DOH, and approved by an independent assessor under contract with DOH– instead of the local district Medicaid agency and MLTC plan.

RAISING THE BAR OF WHO GETS PERSONAL CARE OR CDPAP. 

To qualify for personal care or CDPAP, and for enrollment into MLTC plans, new applicants after Oct. 1, 2020, must need “physical maneuvering with more than two” ADL’s, or for persons with dementia or Alzheimer's diagnosis, need “at least supervision with more than one ADL.” (People already receiving services before 10/1/2020 are "grandfathered" in).

Side note: This ELIMINATES Housekeeping “Level I” services now authorized by local districts up to 8 hours/week – a critical preventative service. It also restricts who is eligible for MLTC services. We thank Health Chairs Gottfried and Rivera for ensuring that it includes the dementia eligibility provision, which was not in a prior draft.

TREATING PHYSICIAN’S ROLE IN PRESCRIBING PERSONAL CARE OR CDPAP IS REPLACED (sec. 2, 20). 

Personal care and CDPAP services must be prescribed by a qualified independent physician selected or approved by DOH. The law authorizes using Maximus (NY Medicaid Choice) instead of procuring a new contractor.

Side note: Aside from the lack of familiarity a contract physician would have with the consumer’s condition, compared to a long-time trusted physician, and the lack of specialization in the consumer’s particular diagnosis, this requirement will add even more delays to applying for services. The consumer will need to arrange an assessment by this independent physician in order to apply.

A new standardized task-based assessment tool will be procured to determine hours, by April 1, 2021. 

It will be “ evidence-based” and used “to assist managed care plans and local departments of social services to make appropriate and individualized determinations for ... the number of personal care services and CDPAP hours of care each day.“ The tool is supposed to identify how Medicaid recipients' needs for assistance with activities of daily living can be met through telehealth and family and social supports. (Section 21).

Side note: How would telehealth assist with preparing meals and assisting a consumer with transferring and toileting?!

DOH will contract with an “Independent Assessor” to replace the assessment function now performed by local districts, MLTC plans and mainstream Medicaid managed care plans

In the most recent proposed regulations, there are two new assessments.  Both of these are done initially and as the annual reassessment process. (There is no longer a 6-month reassessment - it is now annual).

  1. Independent Assessment (IA)  by a Nurse from NY Medicaid Choice -- this is the same Uniform Assessment that NY Medicaid Choice has long done for the Conflict Free Eligibility and Enrolllment Center.  Now, this will be the sole nurse assessment.  The plans and Local DSS must use this assessment instead of doing their own.  This assessment will first determine if the individual meets the new minimum-ADL requirement, if this is a new application.  I
  2. Independent Practioner Panel (IPP)exam by PHYSICIAN, physician’s assisant or nurse practitioner  from NY Medicaid Choice.   In MLTC, this is NEW.  Doctor’s orders (M11q) had not been required.

Once these two assessments are done, the LDSS or Plan will decide on the plan of care, obtaining as much additional information as they need.  However, if the LDSS or plan determine that the indivdiual needs more than 12 hours/day on average, then they must refer it back to NY Medicaid Choice for the extra high-need review, below.(Section 11).

Extra Review of High-Hour Consumers to consider whether Capable of Safely Living in the Community - "Independent Review Panel"

The law authorizes DOH to adopt standards, by emergency regulation, for extra review of individuals “whose need for such services exceeds a specified level to be determined by DOH."  DOH's proposed regulations draw this line at those needing more than  12 hours/day of home care on average. The assessor will review whether the consumer, “with the provision of such services is capable of safely remaining in the community in accordance with the standards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider whether an individual is capable of safely remaining in the community.” (Sec. 2, 20).  Again, this is a panel run by New York Medicaid Choice. 

Side note: While we are pleased to see the seminal U.S. Supreme Court Olmstead decision cited specifically in the law, the entire notion of vetting a high-hour case to consider whether the individual is “capable of safely remaining in the community” raises huge Olmstead concerns. Even now, before these changes are implemented, those who need high hours such as 24-hour care must fight decisions by MLTC plans that they must be permanently placed in a nursing home.

Who is the arbiter of “safety?” What about the consumer’s autonomy – their right to the “dignity of risk” in choosing to accept some risks that may exist in the community in order to live at home as they choose? And their right to the medically necessary supports to meet their daily needs? Invoking concerns about “safety” is an old pretext for denying services–a pretext that the Americans with Disabilities Act (ADA) was enacted to combat.

See NYLAG Comments filed March 13, 2021 on the proposed state regulations for more concerns about these assessments. 

Other Changes in Medicaid and Home Care

  • DOH is scaling back usage of MLTC plans that are “partially capitated”–meaning that Medicare services are not included. They will be expanding “fully capitated” plans – which are Medicaid Advantage Plus and PACE. There will be expanding “fully capitated” plans – which are Medicaid Advantage Plus and PACE. The FIDA program was fully capitated but it closed last year. (sec 5) Read about types of plans here.

  • DOH is setting a cap on enrollment by individual MLTC plans, in an effort to limit the rapid growth in certain plans, which may result from aggressive marketing by the plan and its contractors. The penalty for exceeding the cap will be withholding of up to 3 percent of the premium.

SIDE NOTE – NYLAG fears that plans will control their enrollment by excluding the high-need consumers while welcoming those with lower needs(sec. 5).

  • Instead of a nurse assessment twice a year, MLTCs will now assess once a year unless there is a need for an additional assessment. (sec. 22).  The assessments are by NY Medicaid Choice.

  • Transportation will be carved out of MLTC service package–DOH will contract with a transportation broker. (Part LL, sec. 2)

  • Mandatory Auto-Enrollment of dual eligibles enrolled in Medicare Dual Eligible Special Needs Plan (Dual-SNP) into Medicaid Advantage plans when they turn 65, or into Medicaid Advantage Plus (MAP) plans if they receive home care. This is part of the push to the “full capitation” mega-plans that cover both Medicaid and Medicare. Initially, this will primarily affect people who had MAGI Medicaid under age 65, then are transitioned to non-MAGI Medicaid at 65. Most were in mainstream Medicaid managed care plans, so they will be transferred to the “sister” Medicaid Advantage Plan of the same company. (Sec. 6) (Medicaid Advantage is like Medicaid Advantage Plus except these plans do not provide any Medicaid long-term care services.  Only MAP plans provide Medicaid long-term care services).

  • New applicants for Medicaid seeking home care will no longer be informed of the availability of CDPAP. (sec 17).

  • Various limits on CDPAP access, such as new people approved for Medicaid will no longer be informed of the availability of CDPAP services.

Stay tuned for more information as we study the new law further and as we learn more about how and when it will be implemented

Click here to download NYLAG's  position paper that opposed the cuts and

Read about real people who would be hurt by each of these cuts. 

Click here to download the executive summary of the Medicaid Redesign Team (MRT) II proposals. 

See also Medicaid Matters NY coalition statements on the NYS Budget and MRT II.

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