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NYS Medicaid Cuts -- Independent Assessor Scheduled to Start March 1, 2022 - Advocates Concerned about Capacity and Readiness

11 Jan, 2022

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.   Download the  Final Health Budget Law (direct link to PDF – consumer-focused sections start at page 259)

This article discusses the two main changes -- the LOOKBACK and the changes in eligibility and assessment of HOME CARE,.  On November 1, 2021 NYS DOH said these 2 home care changes will NOT be implemented until a later date to be announced:

  1.  New Independent Assessor procedures that will add burdensome delays to all assessments by MLTC and managed care plans as well as local Medicaid offices for personal care and CDPAP, including Immediate Need. - DOH PLANS TO IMPLEMENT MARCH 1, 2022!  SEE UPDATES HERE with Consumer concerns.

  2. A new standardized task-based assessment tool, about which advocates have raised concerns - not scheduled 

However,  this third change in the regulations IS IN EFFECT since  Nov. 8, 2021

  1. Read about this change in TRANSITION RIGHTS  here, which will allow MLTC plans to more easily reduce home care hours after the end of a "Transition Period" for a member who was required to change plans or enroll in MLTC.    See new FACT SHEET on this change.  

View  recorded webinars and download presentations about these changes here.   

Read the latest comments filed by NYLAG on State proposals for implementing these changes - 

NEWS January 2022 -

  • March 1, 2022 Start Date set by State DOH for the Independent Assessor, announced by  DOH in  a webinar conducted in late December 2021 solely for Plans and Local Districts, not for the public.   However, as of Jan 11, 2022, no ADM or other guidance has been issued and DOH has acknowledged at a meeting iwth Medicaid Matters NY that NY Medicaid Choice lacks the capacity to conduct these assessments - in part due to nursing shortage aggravated by COVID.  

    • NYLAG and Medicaid Matters NY jointly sent this letter to DOH with concerns about implementation, posted here with a Jan. 6, 2022 update. 

  • DOH posted an ADM and MLTC policy on some minor changes in the state regulations, but not on the major new Independent Asssessor procedures.   See 21 ADM-04 & MLTC Policy 21.06 (both 12/13/2021) - announce changes including:

  • Reassessments now are annual not every 6 months
  • CDPAP:  only one FI per consumer; designated rep for non-self directing consumer must be present at all assessments, new agreement between consumer/rep and LDSS/plan
  • M11q/physician’s order may be signed by Nurse practitioner, physician’s assistant, Osteopath – not just MD
  • Tweaks permitted reasons for reductions in MLTC Policy 16.06:
  • Tweaks policy on “safety monitoring” under NYS DOH GIS 03 MA/003  and MLTC Policy 16.07

NEWS November  2021 -

  1. On Nov 8, 2021, State DOH  posted a webinar issued clarifying which of the recent personal care and CDPAP regulation changes will go into effect on Nov. 8, 2021. (Recording) - (Web) - (PDF) (11.8.21). 

This explains further their  letter of Nov. 1,  with this info (web)(PDF)

Final regulations were  posted on the NYS DOH website on August 31, 2021 published in the NYS Register on Sept. 8, 2021.  Direct link to regulation is here.   The regulations have an effective date of Nov. 8, 2021, but much of it will be delayed.  We are disappointed that the final regulations are virtually same as the  proposed state regulations to which NYLAG and other organizations submitted comments in March 2021.  Most of our recommendations were rejected. 

WHAT STARTS NOVEMBER 8, 2021 -  The regulation  cuts back on consumer rights after a "Transition Period."  These changes will make it easier for a plan to reduce hours after a consumer is required to transition to a new MLTC plan.  This could be after their old plan closes, or after they received Immediate Need services for 120 days, or after they first became enrolled in Medicare and had previously received home care from a "mainstream" Medicaid managed care plan.  Read more about these transition rights and how they are changing along with advocacy tips, here.

  • WHAT IS DELAYED:  The new minimum of 3 ADLs (2 if have dementia)  for home care and MLTC, and the new Independent Assessor procedures, both of which were enacted in the 2020 State budget will NOT be implemented yet, new date not yet announced.  Read about the home care changes here . Some of these changes  await CMS approval because of "maintenance of effort" requirements of the ARPA COVID relief legislation.  

Read about the changes here

  1. LOOKBACK  LIKELY DELAYED  until at least  April 1, 2022 and possibly not until July 1, 2022 

  • Because of continuing federal requirements  including the ARPA legislation and the FFCRA Families First Cares Act, which forbid States from restricting eligibility for Medicaid during the Public Health Emergency (PHE),  we have heard informally that the lookback will not begin until April 1, 2022 and possibly not until July 2022.   Meanwhile, the PHE was extended on Oct. 15, 2021, which lasts for 3 months until Jan. 15, 2022.   Medicaid eligibility standards cannot be changed until the end of the quarter in which the PHE ends, which would be April 1, 2022. The Biden Administration told State governors  that states will receive 60 days advance notice before the PHE ends, allowing States time to plan for "unwinding" the COVID moratorium on case closings, etc.    Also, the lookback requires development of many procedures, and this will take time. 

  • Once the lookback is implemented, assets transferred since Oct. 1, 2020 will still be subject to the lookback.   Applications seeking coverage for community-based long term care filed before the effective date -- whatever it is -- will have no lookback.  So for those applications, transfers of assets after Oct. 1, 2020 will not trigger any transfer penalty.  Check back to this website for news to see if this extension is confirmed.  

    • TIP:  Medicaid applications  filed now should request coverage of CB-LTC, in order for the consumer to be "grandfathered in" with no lookback required later, after the lookback goes into effect.  In order to request coverage of CB-LTC, be sure to include Supplement A DOH 5178A with the application (which must now be included with all Medicaid applications anyway - see this article).  Links to the statewide Supplement A Form DOH-5178A are in this article, which explains that NYC no longer uses a  different form).

    • TIP:  On the Supplement A DOH 5178A form (link here), Question 8 on page 3 asks you to check one of THREE boxes to indicate the type of care and services applicant is seeking.  The 1st two choices are both for Community-Based coverage.  Choose the SECOND box seeking community Medicaid with Community-Based Long Term Care, to improve chances that the application will be grandfathered in.  NOTE that final policies on exactly which individuals have been grandfathered in have not been issued, but  DOH's final submission to CMS requesting amendment of the 1115 waiver governing the MLTC program says that those  "who apply for Medicaid coverage of CBLTC before the implementation date will not be subject to the 30-month lookback, including those individuals who file a pre-implementation date application for Medicaid coverage of CBLTC but who are not yet receiving CBLTC services under that application on the implementation date."   Final version submitted to CMS March 25, 2021 (Web) - (PDF at page 6).

  • 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 director Valerie bogart has  conducted several webinars on  the changes:

NYLAG COMMENTS Submitted on State Proposals to Implement the Changes -

  • INDEPENDENT ASSESSOR -  NYLAG and Medicaid Matters NY jointly sent this letter 12/15/21 to DOH with concerns about implementation, posted here with a Jan. 6, 2022 updateTHis followed earlier  comments (3/13/21) on the procedures for these assessments as proposed in the regulations, which were finalized effective Nov. 8, 2021.   

  • LOOKBACK -- On May 5, 2021, NYLAG submitted comments on  the State's March 2021  proposal to CMS to amend the 1115 waiver to allow the lookback to apply to MLTC enrollment  (PDF). CMS  "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 Independent assessor 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

Once this goes into effect, applications filed for Medicaid  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 DOES THIS START?  The effective date  has been postponed several times.  The start date was Jan. 1, 2022  (Web)  (PDF) - but  we have been informally told it will not start until April 1, 2022 and possibly July 1, 2022.  This means applications filed before the effective date have NO LOOKBACK. 

HOW LONG IS THE LOOKBACK?  The lookback will require records back to Oct. 1, 2020.  If the lookback starts April 1, 2022 - the lookback will be 18 months.  Every month the lookback period will increase by one month until it is 30 months in April 2023. 

Both 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.\

  • On May 5, 2021, NYLAG submitted comments on  the State's March 2021  proposal to CMS to amend the 1115 waiver to allow the lookback to apply to MLTC enrollment  (PDF). CMS  "Completeness letter" dated April 7, 2021 - (Web) - (PDF).   Earlier, in September 2020, NYLAG posted COMMENTS to the State's preliminary proposal to amend the 1115 waiver to apply the LOOKBACK to MLTC enrollment -  Proposal at (Web) - (PDF)

  • 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

Final state regulations were  posted on the NYS DOH website on August 31, 2021 published in the NYS Register on Sept. 8, 2021.  Direct link to regulation is here.   The regulations have an effective date of Nov. 8, 2021, but they will not all be implemented on that date.  DOH's announcement  about the regulations said that the "Independent Assessor" procedures will be implemented before the new Minimum ADL restrictions on eligibility for PCS and CDPAP.  

CLICK HERE to see the earlier version of the regulations when  proposed, DOH requests to CMS to approve these changes, along with NYLAG's comments on these proposals.  

Eligibility for Personal care and CDPAP services  and enrollment in MLTC 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.  Current recipients will be grandfathered in.

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 the effective date, which is now likely to be in 2022, 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 the effective date will be  "grandfathered" in).  A bill has been proposed by Assembly Health Chair Richard Gottfried and Senate Health Chair Gustavo Rivera that would repeal the ADL thresholds, which  advocates contend discriminates against people with various disabilitiies who will be denied  services.  See NYLAG Memo in support of this bill - See bill at A5367/ S5028

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.

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, delayed from  April 1, 2021. 

This "tasking tool" will presumably translate findings made in the Uniform Assessment System nurse assessment (a/k/a Community Health Assessment) into a plan of care with the number of hours to be approved.  The law says the tool must   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).

In early May 2021, DOH posted a Request for Information for the new Uniform Tasking Tool.

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 final regulations, there are two new assessments.  Both of these must be done initially, the annual reassessment process, and for any request for an increase in hours, or upon discharge from a hospital or nursing home  (There is no longer a 6-month reassessment - it is now annual).

IN DEC. 2021 DOH told plans and local districts this will start March 1, 2022 - but no official guidance or procedures has been issued as of Jan. 11, 2022.   See updates here.   

Dec. 15, 2021 - NYLAG and Medicaid Matters NY jointly sent this letter to DOH with concerns about implementation, posted here with a Jan. 6, 2022 update.   DOH has acknowledged at a meeting with Medicaid Matters NY on Jan. 4, 2022  that NY Medicaid Choice lacks the capacity to conduct these assessments - in part due to nursing shortage aggravated by COVID.  

  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.  
  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  a third assessment - the extra high-need review, in next section below. (Section 11).

         3.  3rd "Independent Assessment" - Extra Review of High-Hour Consumers to consider whether Capable of Safely Living in the Community - "Independent Review Panel" (IRP) or Independent Medical Review (IMR)

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.  The final regulations effective Nov. 8, 2021 posted here. make no material changes  from these proposals. 

See Medicaid Matters NY and NYLAG Letter to DOH 12/15/21 with concerns about implementation. 

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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