This article can also be downloaded as a Fact Sheet here.
If you received Medicaid personal care or Consumer-Directed Personal Assistance (CDPAP) services, and then you were required to enroll in or transfer to a different Managed Long Term Care plan, your new Plan must continue to authorize the same amount and type of home care services you received in your previous plan, or that you received from your local Medicaid agency. This is known as your right to "continuity of care” or “transition” rights.
But this is only required for a limited amount of time. The new Plan is permitted to review your case and even attempt to cut your hours after the transition period. It is likely you can successfully challenge any attempts to reduce services, but it is necessary for you to be prepared for this process so that you can protect your services.
This fact sheet explains:
A. What are Continuity of Care or Transition Rights and how long do they last?
B. When do you have Transition Rights?
C. When do you NOT have Transition Rights?
D. What are your rights after the Transition Period ends - Changes After Nov. 8, 2021
E. Advocacy tips if Hours are Reduced after Transition Period
F. Get Help
Download this article as a fact sheet here.
A. What are continuity of care rights?
Transition or continuity of care rights mean that your Managed Long Term Care [“MLTC”] plan must give you the same type and amount of Medicaid services that you received before you enrolled in your current plan. Transition rights are required in all types of Medicaid managed care plans. 42 C.F.R. § 438.62 and NY Public Health Law § 4403, subd. 6(f). See more here. This article focuses on MLTC, Medicaid Advantage Plus (MAP) and PACE plans.
How Long is the “Continuity of Care Period” or “Transition Period?"
Your MLTC plan must continue the same services with the same hours for 90 days, with one exception: the Transition Period is 120 days if you switched to a different plan because your old MLTC plan closed. When mandatory MLTC started in 2012, the transition period was only 60 days, but it was extended to 90 days in 2013. See MLTC Policy 13.10: Communication with Recipients Seeking Enrollment and Continuity of Care and CMS Special Terms & Conditions 1115 Waiver (Web) (PDF) (Oct. 2021) (Article V(4)(g) at pp. 32-33).
You have Transition rights when you were receiving Medicaid personal care or CDPAP services, and then were required to enroll in an MLTC plan or switch to a different MLTC plan. There are FOUR situations where you would have Transition rights.
You received personal care or CDPAP from your local Medicaid office, including the Immediate Need program, for more than 120 days, and then you were required to enroll in an MLTC plan (See Fact Sheet on Immediate need). After 120 days of receiving services from the local Medicaid office, you will likely receive a notice from NY Medicaid Choice telling you to select an MLTC plan. The notice will give you a choice of plans. If you don’t pick a plan, you will be assigned to an MLTC plan (the most common type of plan; less common types are Medicaid Advantage Plus (MAP) or PACE plans). The MLTC plan must continue the same home care hours for a 90-day Transition Period. See here. See where to get help for advice on choosing a plan, and/or to see if you do not have to enroll in an MLTC plan because you qualify for an exemption.
You received Medicaid home care from a Medicaid managed care plan designed for people without Medicare, and you are now Medicare eligible – If you do not have Medicare you may have been enrolled in a mainstream Medicaid managed care health plan, which provides all Medicaid services including personal care, CDPAP, and private duty nursing. If you received home care from your Medicaid health plan, and then you enroll in Medicare, you are required to enroll in an MLTC or MAP plan. The MLTC or MAP plan must continue the same plan of care for a 90-Day Transition Period. MLTC Policy 15.02: Transition of Medicaid Managed Care to MLTC.
COVID NOTE - During the pandemic, however, most consumers stayed in their Medicaid managed care plans, which continue to provide their personal care or CDPAP Eventually those who now have Medicare and receive home care will be required to enroll in an MLTC plan. However, even during the pandemic, some members of Medicaid managed care plans who are new to Medicare have been transitioned to Medicaid Advantage Plus (MAP) or MLTC plans under “Default Enrollment,” unless they opted out. See this article.
If your MLTC plan closes or stops providing service in the county that you live in, you must transfer to a new plan. The new plan must continue the same services and hours for a Transition Period of 120 days, not 90 days. See MLTC Policy 17.02: MLTC Plan Transition Process – MLTC Market Alteration. See NYLAG Fact sheet and article on consumer rights in MLTC plan closings.
If you are involuntarily disenrolled from one MLTC or MAP plan, and assigned to another plan, or referred to the local Medicaid office, the new plan or local Medicaid office must continue the same plan of care for a period of time, which is presumably for 90 days. Involuntary disenrollments were banned for most of the pandemic. However, in 2021 NYS began allowing disenrollments to resume on four grounds, described in this article.
In all cases of involuntary disenrollment the plan must send you a 30-day notice of the planned disenrollment, followed by a 10-day notice from NY Medicaid Choice, which states your right to request a Fair hearing. For some grounds for disenrollment, members are reassigned to a different MLTC plan after they are disenrolled. For other grounds, they are referred to the Local DSS to resume services on a fee for services basis. They should have transition rights either way. See this article and look for the particular ground for disenrollment to see what happens after involuntary disenrollment on these grounds.
See this article for the different grounds for disenrollment and the procedures.
IMMEDIATE NEED - If you Jump the Gun and Enroll in an MLTC Plan too Early - If you receive PCS or CDPAP thorugh Immediate Need, but jump the gun and enroll in an MLTC plan before you received these services for 120 days, you will not have Transition Rights in the MLTC plan. Wait until you receive a written Notice from NY Medicaid Choice saying that you are required to enroll in an MLTC plan.
You Change to a Different MLTC or MAP plan - if you change to a new MLTC plan but were not required to do so, you do not have Transition rights in the new plan. This is true even if you have "good cause" to change plans during the "lock-in" period. See DOH MLTC Policy 21.04: Managed Long Term Care Partial Capitation Plan Enrollment Lock-In (8/4/2021) and Lock-In Policy Frequently Asked Questions - (Web) (PDF). For example, if your plan stops contracting with the home care agency that employs your longtime aide, you have good cause to change plans to keep your aide, but the new plan is not required to authorize the same amount of home care that you received before. See more about the lock-in rules here.
As background, MLTC plans may generally reduce your hours of home care services only for reasons allowed by state regulations. The reasons a plan may reduce hours are stated in a State policy MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care or CDPAP Services. This policy was issued in settlement of litigation, and reaffirms the application of due process principles established for Medicaid home care in 1996 to MLTC plans. Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996). A plan may reduce your hours only if the plan alleges and proves that your medical condition improved, your social circumstances changed, or in very limited situations, if a mistake was made in the earlier authorization. The plan must show that this change reduces your need for home care.
Before Nov. 8, 2021 – The same MLTC Policy 16.06 that restricts a plan’s ability to reduce your hours generally also applied after a Transition Period ended. A plan could reduce your hours after the Transition Period ended only if they could prove that a major change in your condition or circumstances occurred since your hours were previously authorized by your old plan or by the Medicaid office if you received Immediate Need home care. The new Plan would have to explain why this change reduces your need for home care.
After Nov. 8, 2021 – A change in a state regulation allows MLTC plans to reduce your hours after the Transition Period if the Plan determines that the previous plan or Medicaid agency gave you “more services than are medically necessary,” without proving any change. The Plan’s notice proposing to reduce your services need only "indicate a clinical rationale that shows review of the client’s specific clinical data and medical condition." 18 NYCRR Sec. 505.14(b)(4)(viii)(c)(3)(vii), 505.28(i)(4)(iii)(h) as amended eff. 11/8/21 (posted here - at pp. 60 and 137). The Plan no longer has to prove that you need less home care for one of the reasons in MLTC Policy 16.06.
- NYLAG, along with the NYSBA and other organizations submitted extensive comments opposing these and other changes in the regulations. See Point 11, pp. 29-32 of NYLAG comments. NOTE: Most other changes in the state regulations will not go into effect until 2022 or later, even though the official effective date is Nov. 8, 2021. This includes new restrictions on eligibility for personal care or CDPAP and new "Independent Assessor" procedures described here. See DOH summary of which changes go into effect on Nov. 8th, 2021 (Recording) - (PDF) and new NYS DOH Independent Assessor webpage.
What has NOT changed- If your new plan wants to reduce or end services after the Transition Period, the plan must still give you:
- A letter called an “Initial Adverse Determination” (IAD) REDUCTION notice (PDF) at least 10 days before reducing services. If you request a Plan Appeal before the effective date of the reduction, your services will not be reduced while the appeal is pending (this is known as “Aid Continuing”). But this does not mean your fight is over. Seek help from the resources listed below.
- If you lose your appeal, the Plan should send you a “Final Adverse Determination” REDUCTION (PDF) notice at least 10 days before the reduction takes effect. If you request a Fair Hearing before the effective date, you will have Aid Continuing, so your services will not be reduced while the fair hearing is pending. Seek help from the resources listed below.
Remember: These new rules only allow a plan to reduce hours more freely after a Transition Period ends. Any other reductions in hours must be for one of the reasons stated in MLTC Policy 16.06. Seek help from resources listed below.
See more about MLTC Appeals and Hearings here.
- If you receive an Initial Adverse Determination (IAD) (PDF) request a PLAN APPEAL right away to get Aid Continuing. Beware - Plan may mistakenly use a DENIAL notice (PDF) instead of a REDUCTION notice (PDF). DENIAL notices have no right to Aid Continuing. If this happens, tell plan they must provide Aid Continuing, and Get Help below.
- If you receive a Final Adverse Determination (FAD) (PDF) --request a Fair Hearing right away to get Aid Continuing. Beware - Plan may mistakenly use a DENIAL FAD notice (PDF) instead of a REDUCTION FAD notice (PDF). DENIAL FAD notices have no right to Aid Continuing. If this happens, ask for Aid Continuing in the Fair Hearing request and contact the NYS Office of Temporary & Disability Assistance to explain why. Get Help below.
- After you make these requests, if you want help in the appeal or hearing, get help from organizations listed below.
- GET RECORDS OF PAST AUTHRORIZATIONS FROM BEFORE JOINED MLTC.
- In the plan appeal or fair hearing, say that the new Plan has the burden of proof of producing the previous records from the Local Medicaid office or previous plan. These records should be necessary at both levels of appeal for the Plan to prove that you receive more hours than medically necessary; the Plan should not be able to reduce services without producing these records.
- Consumers receiving Immediate Need services from the Local Medicaid office should ask their Medicaid office for their complete home care file. Those receiving home care from a mainstream managed care health plan and become enrolled in Medicare should ask the health plan for their home care file. This may be useful later to refute a new plan's claim that the hours authorized previously were not medically necessary.
- Despite the change in the regulations, advocates believe that due process still forbids plans from reducing hours unless there was a change since the hours were first authorized. Changes could be that the consumer's medical condition improved, social circumstances changed, or a mistake was made in the previous assessment. See above and MLTC Policy 16.06. Consumers should raise this argument in all appeals and fair hearings and get help, below.
See contacts for help here.
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.