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Huge Medicaid Cuts Enacted in NYS Budget April 2, 2020 - Webinar now Posted + New Info on Lookback July 2020

21 Jul, 2020

Severe cuts in Medicaid eligibility and access to home care services were enacted in the State Budget on April 2, 2020. Most of the cuts will not be effective until October 1, 2020.

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 Spousal or Parental Refusal  were NOT repealed   (which is explained in this Fact Sheet  pp. 6-7)   - SPOUSAL REFUSAL IS STILL IN EFFECT 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

NOTE:  The effective date of many of these changes is not yet clear.  You may have heard that the Families First Coronavirus Response Act signed on March 18, 2020, will give New York as much as $6.2 billion in additional federal Medicaid funds, but only if New York maintains eligibility standards, methodologies, and procedures that are no more restrictive than what the state had in place as of January 1, 2020 (maintenance of effort requirement, described more here).  To take advantage of the federal funding, the cuts enacted in the budget will not be effective until after the federal emergency is declared over.   The NYS budget  law says many of the home care cuts will only apply to new applicants after Oct. 1, 2020.  This date was presumably set to be after the expected end of the federal emergency.  

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

UPDATE July 2020: For applicants applying for Medicaid after  Jan. 2, 2021 (not after 10/1/2020 as previously announced)  in order to obtain any community-based long term care service, there will  be a “lookback” that will eventually be 30 months (2.5 years).

  • UPDATE July 2020:  Initially In January 2021  the lookback will be 3 months, requiring submission of financial records since 10/1/20.  Each month, the lookback will add an extra month, requiring submission of records since 10/1/20.  Transfers made BEFORE 10/1/20 will not have any penalty.

  • They must show records of all financial assets of the applicant and spouse for up to  30 months before the application - under the phased in schedule above.

  •  If there were transfers of assets during that lookback period that are not “exempt” transfers, the individual will be denied Medicaid coverage of the long-term care services for a “penalty” period. If they use the same period as the one used for nursing homes, in NYC home care would be denied for one month for every $12,844 transferred. See penalty rate in the rest of the state here. (Sec. 13, 14)

  • 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.

    • Update re Lookback -  LEARNED SINCE THE 4/23/20 WEBINAR:  In a presentation by DOH for health plans, shared with Medicaid Matters NY, 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 this is still unclear. 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.

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 after Oct. 1, 2020, will be subject to at least some of the restrictions.

DOH proposed REGULATIONS implementing the cuts listed below. Comments are due Sept. 14, 2020.   Posting is here.   Text of proposed regulations is here

Personal care and CDPAP services are now defined much more narrowly - eligibility requires 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 function now performed by local districts, MLTC plans and mainstream Medicaid managed care plans

The assessor will  determine how much Personal care and CDPAP to be authorized. The law allows DOH to expand the Maximus contract to do conflict-free assessments to include this function. This will likely apply to Immediate Need assessments, all home care determinations by the local districts for those exempt or excluded from MLTC or Medicaid managed care, as well as MLTC determinations of hours. (Section 11).

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

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” (which in earlier drafts was 12 hours/day or more). 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)

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.

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)

  • 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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