NYS Medicaid Redesign Team II (MRT) -- Independent Assessor to expand Dec. 1st for Immediate Need despite Problems ..Lookback Delayed til April 1, 2024

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

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

  1.  NY Independent Assessor (NYIA)  - 
    see more below   with delay for Immediate Need and expedited managed care requests until DECEMBER 1, 2022 - see timing updates here  and WHERE TO COMPLAIN  - Click on these links to read more - 

  1.  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.   

B. These  MRT-2  changes will not be implemented until the end of the Public Health Emergency:

On. Oct. 13, 2022, the Public Health Emergency was extended again until Jan. 13, 2023.  The following changes cannot start until April 2023 at the earliest, but there are different projected dates for each change below.   

  1. 30-Month LOOKBACK  for Medicaid Home Care and Assisted Living Program -   DOH announced it is delayed til at least 3/31/2024.  See NYS MRT website here.   See more about the lookback below

  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 and cannot be implemented before April 1, 2023, which is after the quarter in which the Public Health Emergency may end, but will likely end later.  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  abandoned this effort and instead just issue guidelines and standards for plans and local districts to make appropriate and indivdiualized determinations for utilization.

C.  NY INDEPENDENT ASSESSOR   (NYIA)

IN THIS ARTICLE:

Two Official Websites about NYIA

  1. Maximus website   https://nyia.com/en  (also in Espanol) (launched June 2022)
  1. STATE DOH website on Independent Assessor with government directives here - 

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

CONTACTS - Where to  REPORT PROBLEMS, Request Evidence Packet, Submit a Power of Attorney - and OTHER KEY NUMBERS - such as delays in scheduling, no in-home assessments offered (solely telehealth)

Form to Designate a Representative - REVISED - now separate from the Information-Sharing  Consent Form

WHERE ARE THE POLICIES AND PROCEDURES FOR THE INDEPENDENT ASSESSOR?  

NYLAG Slide decks and webinars on NYIA - 

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:

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 -

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  - DOH announced this the earliest date that the State will seek implementation is
March 31, 2024.  See NYS MRT 2 webpage here. 

  •  The start date  has been pushed back several 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, which was amended in August or September 2022. 

    • NYLAG's May 5, 2021 comments on  the March 2021 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 April 1, 2024 - the lookback will be 30 months.   

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:   

  • Under the Families First Covid law (FFCRA), new  restrictions on eligibility like the lookback and Minimum ADL Thresholds cannot start until April 1, 2023 - but likely even later, because these are both restrictions on home and community based services (HCBS)- which are also banned by a separate Maintenance of Effort Requirement of the American Rescue Plan (ARPA).  States cannot restrict eligibility for 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.   

    • NYS DOH has delayed the lookback for home care & the Assisted Living Program  to begin no earlier than March 1, 2024.   But they have not said the exact date for the ADL limits - it can't be before April 1, 2023, but we don't know whether it might be a year later or even 2 years later. 

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

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

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.



21 Nov, 2022
NYS Medicaid Redesign Team II (MRT) -- Independent Assessor to expand Dec. 1st for Immediate Need despite Problems ..Lookback Delayed til April 1, 2024
http://www.wnylc.com/health/news/85/