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NYS Medicaid Redesign Team II (MRT II) -- Independent Asessor delayed til October 1st for Immediate Need and Expedited Requests.. but in effect for MLTC Enrollment

26 Jul, 2022

This article gives updates on the Medicaid changes enacted in the 2020 NYS Budget under the "Medicaid Redesign Team II" or MRT-2.  

The two MRT-2 changes that ARE being implemented are:

  1.  NY Independent Assessor (NYIA)  -  see more below   with delay for Immediate Need and expedited managed care requests until October 1, 2022 - see timing updates here  and WHERE TO COMPLAIN 

  2.  Diminishing  "Transition Rights" for people required to change or enroll in an MLTC plan.  See this article and  FACT SHEET  about the amended regulation effective Nov. 8, 2021.   

Some  MRT-2  changes will not be implemented until the end of the Public Health Emergency, which as of July 2022  means they cannot start until October 2022 at the earliest.   Those on delay are:

  1. 30-Month LOOKBACK  for Medicaid Home Care and Assisted Living Program -    See more here

  2.  MINIMUM NEEDS CRITERIA FOR Personal Care, CDPAP and MLTC enrollment need assistance with physical maneuviering for THREE Activities of Daily Living (ADLs), or cueing for TWO ADLS if they have dementia or Alzheimer's disease.  This has been delayed indefinitely.  See more here. 

  3. A new standardized task-based assessment tool, about which advocates have raised concerns -  This was never implemented and Gov. Hochul's proposed Budget for 2022-23  abandon this effort and instead just issue guidelines and standards for plans and local districts to make appropriate and indivdiualized determinations for utilization.

NY INDEPENDENT ASSESSOR   (NYIA)

What is the Independent Assessor?  Click here for the basics

Two Official Websites about NYIA:

  1. Maximus website   https://nyia.com/en  (also in Espanol) (launched June 2022)
  • 7/11/22 - NYIA Consent Form posted; click here for link and NYLAG Guide to completing & submitting form 
  1. STATE DOH website on Independent Assessor with government directives here - 

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

WHEN DOES NYIA START?   NYS DOH has delayed NYIA  phase-in as follows (latest announced June 21, 2022) - and more detail here

  • May 16th -- was the start date for:

    • MLTC enrollment and all

    • new requests for Personal Care and CDPAP made to mainstream or HARP plans that are STANDARD not EXPEDITED  and 

    • new requests to local districts (DSS/HRA) on a standard timeframe (pushed back from May 1st, which DOH had posted  on Feb. 4, 2021).  NYC HRA issued this Alert on 05/13/22 re NYIA.

  • October 1st, 2022 start date (pushed back from July 1st) for:

  • FUTURE DATE to be announced - Annual reassessments and requests for increases  - by MLTC, managed care plans and local districts -- will not be done through the NYIA yet.  Still done the old way.

PLEASE REPORT PROBLEMS TO THESE HOTLINES - and OTHER KEY NUMBERS - such as delays in scheduling, no in-home assessments offered (solely telehealth)

WHERE ARE THE POLICIES AND PROCEDURES FOR THE INDEPENDENT ASSESSOR?  

  • NYIA has now posted online a Consent Form allowing it to contact a consumer’s doctors and other medical providers when they assess eligibility for enrollment in a Managed Long Term Care (MLTC) plan, or eligibility to obtain Medicaid personal care or Consumer-Directed Personal Assistance (CDPAP) services through the local Medicaid office. The form states that it can also be used to designate an authorized representative for purposes of interacting with NYIA, though this part of the form is not clear.

    • See NYLAG fact sheet explaining how to complete and submit this form.  NYLAG is raising concerns with DOH about this form, since it is difficult to complete and submit. and since consumers should  have other easier ways to designate a representative.

  • Mainstream Managed Care GuidanceJune 17, 2022 - Delays EXPEDITED mainstream assessments under NYIA until Oct. 1, 2022 

    • April 28, 2022MMC Guidance - Implementation for Initial Assessments for members of Mainstream Medicaid managed care plans requesting personal care or CDPAP

  • Local District Medicaid Offices - June 17, 2021 GIS 2022-MA/05 - delayed Immediate Need implementation of NYIA until Oct. 1, 2022 (delays dates announced in Administrative Directive (ADM) 22-OHIP-ADM-01 NY Independent Assessor for  Personal Care & CDPAP for local districts  (April 20, 2022) 

  • April 27, 2022 - DOH posted MLTC Policy 22.01: Implementation of the New York Independent Assessor for Initial Assessments 

  • The above policies are finally posted on the DOH NYIA webpage, which also has PowerPoints presented to plans and local districts, not to the public. No FAQs or consumer information are posted as of 5/14/22, just  2 days before the NYIA starts.

  • On May 3rd, 2022, NYLAG sent these questions and comments about the new policy directives. 

  • State regulations were amended effective Nov. 8, 2021.  See more here.

NYLAG Slide decks and webinars on NYIA - 

  • See  NYLAG's recent  slide deck here on NYIA (current as of July 11, 2022) and view recorded webinar with Valerie Bogart speaking about these changes here - with other speakers at annual NY Elder Law Forum on May 19, 2022. 

  • VIEW earlier January  26, 2022 recorded webinar here and download PowerPoint here (but note that since this webinar conducted, implementation date has been delayed to May 16, 2022 for Independent Assessor and more policies were issued..  see more recent slide deck.above.

What is the NY Independent Assessor? 

These are the basic steps used for ALL requests and reassessments for personal care and CDPAP, whether by an MLTC plan, a mainstream managed care plan, or a local Dept. of Social Services (DSS).  Note that implementation is being phased in among these different entities.  See  NYLAG's recent  slide deck here  for more info (current as of July 11, 2022).  Consumers can appoint a representative to talk to NYIA on their behalf.  NYIA has its own form for this.  See NYLAG fact sheet explaining how to complete and submit this form.

  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) or C.A.exam by PHYSICIAN, physician’s assisant or nurse practitioner  from NY Medicaid Choice, who prepares a Physician's Order (P.O.)   In MLTC, this is NEW.  Doctor’s orders (M11q) had not been required.

    • Note: the IPP/CA may wish to clarify information about the consumer’s medical condition by consulting with the consumer’s provider’s.  The consumer must give provider’s permission to do this.  NYIA has its own form for this purpose.  See NYLAG fact sheet explaining how to complete and submit this form.

  3. 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 Independent Review Panel in next section below(Section 11).

  4. INDEPENDENT REVIEW PANEL (IRP) - The 2020 MRT II 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 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.

STATE REGULATIONS  & POLICIES ON INDEPENDENT ASSESSOR AND NYLAG COMMENTS 

Final state regulations  on Personal Care and Consumer-Directed Personal Assistanc (CDPAP) 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.   NYLAG was disappointed that the final regulations were virtually same as the  proposed state regulations to which NYLAG and other organizations submitted comments in March 2021.  Most of our recommendations were rejected.   

On Dec. 13, 2021, 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 - 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

On Nov 8, 2021, State DOH  posted a webinar 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). 

  1. WHAT IS DELAYED:  The new minimum of 3 ADLs (2 if have dementia)  for home care and MLTC, and the new Independent Assessor procedures,werel NOT implemented yet, but later the Independente Assessor  

  2. 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.

View Recorded NYLAG Webinars 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 Regulations & Policies  to Implement the Changes -

  • INDEPENDENT ASSESSOR -  NYLAG has sent 3 letters to DOH with questions and comments about the NYIA implementation.

    • 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. 

  • 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.

Lookback and Other Medicaid Redesign Team II Changes Enacted 2020 

 30-Month 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).   Once the lookback is implemented, assets transferred since Oct. 1, 2020 will be subject to the lookback.   Applications 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.  

LOOKBACK  cannot be implemented  until at least  Oct. 1, 2022 and more likely not until later in 2023 or 2024 

  •  The start date was Jan. 1, 2022  (Web)  (PDF)  and has been pushed back serveral times because of continuing federal requirements  enacted as part of COVID relief.

  • The Families First Cares Act  (FFCRA )  forbids States from restricting eligibility for Medicaid until the end of the quarter in which the Public Health Emergency PHE ends This is called the "Maintenance of Effort" requirement. The Biden Administration told State governors  that states will receive 60 days advance notice before the PHE ends.  The PHE was recently extended until Oct. 15, 2022, so the earliest the lookback could start is Jan. 1, 2023.

  • Other COVID legislation -- called  he American Rescue Plan (ARPA) -- also has a  eparate Maintenance of Effort Requirement that says states cannot restrict eligibility for home and community based services (HCBS) until the earlier of when they spend the federal ARPA funds  or March 31, 2025.  See this link.  See NYS ARPA website for its spending plan and quarterly reports to CMS.  

  • Apart from these COVID restrictions, the lookback cannot yet be implemented because DOH has not yet issued regulations or guidance, and has not requested a State Plan Amendment from CMS.  Also, CMS has not yet approved DOH's request to amend the 1115 waiver to allow a lookback to be used to limit eligibility for MLTC enrollment. 

    • See DOH's  March 2021  proposal to CMS (PDF) to amend the 1115 waiver to allow the look back, and

    • NYLAG's May 5, 2021 comments on  this request.  

    • 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.

HOW LONG IS THE LOOKBACK?  The lookback will require records back to Oct. 1, 2020.  If the lookback starts Oct. 1, 2022 - the lookback will be 24 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

  • 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 perio

  • 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).

MInimum Needs 3-ADL Criteria - RAISING THE BAR OF WHO GETS PERSONAL CARE OR CDPAP or can Enroll in MLTC Plan

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.

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.

STATUS:  Cannot be implemented until the end of the quarter in which the Public Health Emergency ends, which was extended through July 2022.  The earliest implementation date is Oct. 1, 2022.

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 - and 2022 Budget proposes to shelve this project   

The 2020 Budget required DOH to develop a uniform "tasking tool" that would wpresumably 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.

This was never implemented and the NYS Budget for 2022-23 abandons this initiative and instead will just issue guidelines and standards for plans and local districts to make appropriate and indivdiualized determinations for utilization

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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