ICAN - OMBUDSPROGRAM FOR FIDA & MLTC Phone: 844-614-8800
See FIDA News Update re 5 FIDA Plans Closing in NYC and Nassau Counties in 2018, and Transition rights of the 534 members of those plans as of December 2017.
Heads Up about new rules for MLTC members who are appealing an adverse determination by their MLTC plan. The changes take effect March 1, 2018. Members must first request an "internal appeal" within their MLTC plan, and wait for the plan's decision, before they may request a Fair Hearing. See this article about these changes.
An update to the news below about the recent NYS Appellate Division decisions that allow lawsuits to go forward by home care aides challenging a 2010 NYS Dept. of Labor policy that allows live-in aides to be paid only 13 hours/day. The courts found that the 2010 policy is contrary to the state labor regulations that require that the minimum wage be paid for every hour worked, unless the worker actually resides in the consumer's home.
On Oct. 25, 2017, the NYS Dept. of Labor published an "emergency regulation" (p. 5 of link) that amends the NYS minimum wage regulations in a way that appears to attempt to undermine the recent appellate court decisions. Those decisions found that the 2010 NYS Dept. of Labor policy RO-09-0169 Live-In Companionsthat allowed live-in aides to be paid 13 hours for a 24-hour day, if they do not actually live with the consumer, conflicted with the actual state minimum wage regulations. Now the State amended the minimum wage regulations to state that live-in aides need not be paid for the 3 1-hour meal periods and 8 hours of sleep time (totaling 11 hours/day) that are excluded from hours worked under the federal minimum wage regulations as amended by the Obama administration. The amendments appear to be intended to adopt the 2010 policy guidance RO-09-0169 Live-In Companionsand allow payment of 13 hours/day.. If the Court of Appeals accepts review of the Appellate Division cases, the impact of the regulatory amendments will no doubt be disputed. In the meantime, it is not clear what is the impact of the amendment to the regulations. See consumer advocacy tips below if consumer's 24-hour shift is not staffed adequately by an MLTC plan or managed care plan.
The NYS Department of Health has finally issued a Transition policy that gives some protection to members of plans that close. "MLTC Policy 17.02: MLTC Plan Transition Process – MLTC Market Alteration." issued 9/22/17, has 2 key protections:
Members of a closing plan will receive a notice from New York Medicaid Choice, the States enrollment broker for managed care, that if they do not select a new plan within sixty (60) days, they will be auto–assigned to a new MLTC plan.
The new plan must continue the same services provided by the closing plan for the longer of 120 days or until the member "agrees" to a new service plan. See more about this policy and Advocacy concerns in this article.
The new MLTC Policy 17.02 procedures will be used for Guildnet and North Shore LIJ Closings described below.
Guildnet - About 3,000 former members of Guildnet MLTC plan in Long Island and Westchester who transitioned to another plan after they heard Guildnet was closing, have received this Sept. 29, 2017 letter from the State telling them they may request that their hours be restored to the amount Guildnet authorized, if the new plan reduced their hours. To request that hours be restore, they must call New York Medicaid Choice before Dec. 29, 2017 at 1-888-401-MLTC or 1-888-401-6582. If they are still eligible for Medicaid, the new plan should increase their hours to the amount Guildnet authorized. If you have called NY Medicaid Choice and cannot get your former hours restored to the amount Guildnet gave, you can call NYLAG Special Litigation Unit at 212-613-5032 or call ICAN Ombudsprogram at 1-844-614-8800
The remaining 930 Guildnet members in Nassau, Suffolk & Westchester counties will received in mid-October that they have 60 days to select a new plan, or they will be auto-assigned to another plan The new plan must continue the same services that Guildnet provided for 120 days or until the member agrees to a change.
North Shore LIJ MLTC - New York Newsday publicized the closing on September 1, 2017, Northwell to end long-term care plan that covers 6,000 elderly, On September 22, 2017, North Shore sent this letter to all of its 5,645 members in Nassau, Suffolk, and New York City. The letter informs members that the plan is closing 12/31/17. and that unless they enroll in a different plan before 11/10/17, they will be auto-assigned to Centers Plan for Health Living effective January 1, 2018. While the letter does not specifically say it, North Shore LIJ members should have the protections regarding keeping their same services, described above in new DOH MLTC Policy 17.02. See this article for more about the policy, advocate concerns about the policy, and consumer strategies to ensure that services are not reduced in the transition. If hours were or are cut when they transfer to a different plan, call NYLAG Special Litigation Unit at 212-613-5032 or call ICAN Ombudsprogram at 1-844-614-8800
When FIDA first expanded outside of New York City and Nassau counties to Westchester and Suffolk, only one plan -- Agewell FIDA -- was offered in those counties. Two new FIDA plans are available in Westchester County (since 7/1/17) -- Healthfirst and Riverspring. Agewell remains the only plan available in Suffolk. See complete list of FIDA plans , but note that the list will change in 2018 when these 5 FIDA plans close: Aetna, Guildnet (in Nassau County only), Fidelis, ICS, and North Shore -LIJ,
Lists of all MLTC, Medicaid Advantage Plus, PACE and FIDA plans by region is available on NY Medicaid Choice website. (Scroll down to Health Plan Lists)(Note that FIDA list will change in 2018).
Home Care Aide Wages - Court Decisions, Wage Parity and Minimum Wage increases -
Home care workers, including CDPAP personal assistants, are entitled to increases in wages in 2017, with further increases in 2018. See
Appellate Division decisions strike down state rule that allows 24-hour live-in aides to be paid only 13 hours/day. Decisions state that 24-hour case home care workers must be paid for all 24 hours if they are “nonresidential,” meaning they do not exclusively reside in the consumer's home. The decisions were based, in part, on rejecting a 2010 state Dept. of Labor policy guideline RO-09-0169 Live-In Companionsas in conflict with state minimum wage regulations. Tokhtaman v. Human Care, LLC (1st Dept. 2017 NY Slip Op 02759); Andreyeva v. NY Home Att. Agency; Moreno v Future Care Health Serv. (2nd Dept.)
Heads Up re Assisted Living Program (ALP) and MLTC - The Assisted Living Program is expected to be "carved into" MLTC and Mainstream MMC, effective 10/1/18 for NYC, Long Island and Westchester, and effective 1/1/19 for the rest of the state. This means plans will now authorize and pay for ALP services, as they do nursing homes. Exact procedures are unknown, but we presume that current ALP residents will be "grandfathered in" as nursing home residents were grandfathered in when the nursing home benefit was carved into MLTC. See this article and MRT 1458.
From executive summary:
Crain's further reported, "The move follows the exit of another nonprofit managed long-term care plan, GuildNet, from Suffolk as well as Nassau and Westchester counties as of June 1. The two plans had covered 41% of the 5,735 managed long-term care enrollees in Suffolk County as of March. The state Department of Health is "closely tracking" the transition of members in Suffolk County following the exits of GuildNet and Elderplan, a spokeswoman told Crain's. There are still 10 plans offering coverage in the county, including Fidelis Care and North Shore-LIJ Health Plan. Earlier this month in response to GuildNet's exit, the department had said there was "ample capacity and choice" in the managed long-term care program."
The letter further states, "You will continue to receive services from GuildNet until your transfer to your new plan is complete." Advocates are informed that members WILL CONTINUE to receive Guildnet MLTC services even after June 1, 2017 if they do not select a new plan.
Members will not be "auto-assigned" to a new MLTC plan if they do not enroll in one on their own.
Despite the letter's wording, advocates are informed that if other MLTC plans do not authorize the same amount or type of services that the member now receives from Guildnet, they do not have to change plans. Also, many MLTC plans are backed up and cannot schedule assessment visits until June or later. Members may stay in Guildnet after June 1, 2017. This is true regardless of what members may be told by staff of Guildnet, New York Medicaid Choice, or other organizations.
Also, some members have been notified that Guildnet will no longer contract with the home care agency that employs their home care worker. Advocates were told by the State Dept. of Health that Guildnet must do "single case" agreements with home care agencies. This means Guildnet will still pay the home care agency to continue to provide services to individual members after June 1st, even if that home care agency's contract with Guildnet ends on June 1st.
The Guildnet Gold Plus FIDA Plan continues to be offered in Nassau County and Guildnet Medicaid Advantage Plus (MAP) Plans continue in Nassau and Suffolk Counties
Transition Policy Requested. Advocates are asking the State to require the new plans (to which former Guildnet members are transferring) to continue the same services and same number of hours that Guildnet authorized. So far, the State has not agreed to issue this "transition policy." Transition policies require MLTC plans to continue the same services for 90 days that the consumer received before enrolling in MLTC, when the consumers are mandated to transition from fee-for-service personal care or CDPAP to MLTC. See, e.g. MLTC Policy 13.13, MLTC Policy 13.01 (revised)(period was later extended from 60 to 90 days in MLTC Policy 13.10) (All MLTC policy directives available at https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policies.htm). The same protection should apply in this situation, where a plan is effectively closing down. Advocates contend that the new plan should only be allowed to reduce services below the amount Guildnet had authorized if there is a change in the member's needs or circumstances, after giving proper advance notice of hearing rights. See MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services
The Guildnet letter does not give contact information for ICAN - the Independent Consumer Advocacy Network that contracts with the State Dept. of Health to provide information and advocacy for consumers about MLTC, FIDA, and other managed care plans. Members with questions or who have problems keeping the same hours, or facing disruptions in their care should call ICAN. Phone: 844-614-8800
TTY Relay Service: 711 Website: icannys.org e-mail: firstname.lastname@example.org
Background - In November 2016, as reported in the NYLAG MLTC news update article, Guildnet notified the State Dept. of Health that it "will no longer enroll members in Nassau, Suffolk and Westchester counties, according to a letter its chief sent to the state Department of Health. Alan Morse, CEO of GuildNet, told the Cuomo administration the 'calamitous state of reimbursement' made it no longer feasible to operate because the program was incurring 'substantial deficits.'" See story reported in Politico dated Nov. 23, 2016. On January 13, 2017, Crain's Health Pulse reported that Guildnet announced that it would hold off on giving the State the formal 90-day notice required before it exited from any counties. Crain's quoted Alan Morse, the CEO of Guildnet, "We said we would hold off on giving them formal notice until we figured out how well they would address our needs and how we're going to make the program work," with Mr. Morse referencing MLTC reimbursement rates.