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Consumer Advocates Call for Further Protections in Medicaid Managed Long Term Care

01 Sep, 2014

Consumer advocates have submitted several comments to the New York State Department of Health and the Centers for Medicare and Medicaid Services (CMS) that would protect the rights consumers as Managed Long Term Care is implemented.  

September 2014 - NYLAG, Empire Justice Center and other consumer advocate file comments on proposed procedures to authorize temporary Medicaid personal care services while a Medicaid application is being processed.

As ordered by a NY State Supreme Court, in July 2014 the State Department of Health  published proposed regulations to establish a procedure for Medicaid applicants to obtain “immediate temporary personal care services” while their Medicaid application is pending.  NYLAG, Empire Justice Center and other organizations filed comments that support the overall goal of the proposed regulations to ensure that individuals are able to access needed personal care services to protect their health and safety while awaiting a Medicaid eligibility determination.  However, instead of using local departments of social services  to determine eligibility for and authorize immediate need personal care services, NYLAG and others recommend that the  new Long Term Care Evaluation and Enrollment Center (LTCEEC), which is slated to become operational in October 2014, authorize these services.   As MLTC has rolled out, extensive delays in enrollment in the MLTC plans, even AFTER the Medicaid application has been approved, have compounded the harm of delays in processing the initial Medicaid application.   The new system should address these problems AFTER the Medicaid approval as well as delays BEFORE the Medicaid approval.     For links to the comments, the proposed regulations and information about the lawsuit, click here

July 2014 -- NYLAG Files Class Action Complaint against the NYS Dept. of Health for Due Process Violations by Medicaid Managed Care and MLTC Plans when they Reduce Home Care Hours without Proper Notice and Appeal Rights

As reported in the New York Times, NYLAG has filed a federal class action law suit accusing New York State of failing to protect the rights of disabled and chronically ill Medicaid recipients who receive home care services through managed care contractors.

The plaintiffs named in NYLAG’s complaint are representative of thousands of New Yorkers who struggle with severe health conditions and depend on Medicaid-funded care, but are now having their services reduced or discontinued without adequate notice or the opportunity for a Fair Hearing, as required by law.

In the last year, Times health reporter Nina Bernstein has written numerous articles about the human toll of the State’s decision to turn billions in public funding for long-term managed care services over to private companies that are paid a fixed sum for each enrollee. As these companies strive to keep their costs down, community advocates have reported dramatic reductions in the level of care being provided to people with the most urgent – and expensive – needs. Today’s article describes NYLAG’s lawsuit as “taking these complaints to a new level, charging that the State is now allowing companies to quietly reduce or terminate home care to people whose need for services has not changed, without giving them a meaningful chance to object.”

Read the Times article.

Read the class action complaint.

May 20, 2014 - MFY, NYLAG and other Consumer Advocates Call for Protections in MLTC and slowing down expansion

Letter of May 20, 2014 attached, with samples of inadequate notices sent by MLTC plans to consumers that violate due process rights, and highighting other concerns about rapid implementation of MLTC. 

March 2014 -   Consumer Advocates Call for Delay in Requiring Nursing Home Residents to Enroll in Managed Care Plans

On March 14, 2014, NYLAG and six other consumer advocacy organizations in NYS sent a letter to the federal Medicaid agency, CMS and to the State Dept. of  Health asking them to slow down the expansion of Medicaid managed care to include all new nursing home residents who become permanently placed in nursing homes after April 1, 2014.  The advocates pointed out numerous systems and procedures that are not ready for such a massive change, and the lack of education about these changes for hospital social workers, medical professionals and myriad other professionals who work with seniors and people with disabilities.  Advocates are concerned that without adequate preparation, the rights of vulnerable New Yorkers will be violated -- including the right under the Americans with Disabiliies Act to Medicaid services that enable them to live in the "most integrated setting" -- which is at home in the community rather than in an institution. Download the letter here.

April 1, 2014 is the new projected date for the NYS Department of Health (DOH) to include NURSING HOME CARE in the Managed Long Term care (MLTC) and "mainstream" Medicaid Managed Care programs.    The original date was March 1, 2014.  As of March 13, 2014, the federal Medicaid agency CMS has still not approved the expansion of the 1115 waiver that will allow the State to require nursing home residents to enroll in managed care and MLTC plans.  See this news article for links to download more information on this expansion of managed care

March, 2014 - NYLAG & Other Advocates Support Assembly Bill A4996 to Improve Due Process Protections in Managed Long Term Care & Managed Care

Bill A04996/ S06586 would correct two due process violations: (1) The lack of "aid continuing" pending an appeal when a managed care plan reduces or terminates home care or other services -- if the "authorization period" for the services has expired, there is a right to appeal but no right to aid continuing. This provides that aid continuing must be given regardless of whether the authorization period has expired. (2) In Managed long term care, consumers must "exhaust" internal appeals before requesting a hearing. This is not required in mainstream managed care, and results in dismissal of many valid appeals because consumers don't know that they must pursue this interim internal appeal.
  • April 2014 UPDATE - SUCCESS! The 2014 NYS Budget enacted April 1, 2014 The NYS Budget incorporates this Assembly Bill  A4996 language, guaranteeing the right to receive AID CONTINUING "without regard to expiration of a prior service authorization."  The final budget bill is A9205 Sec. 42, amending Soc. Services Law Sec 365-a, subd. 8 (Section 42 is at pp. 134-135 at this link).  See NYLAG Statement in Support of A4996.  See more about this amendment and other state budget info here

May 2013 - Consumer Advocates Call for Protections in FIDA Demonstration Proposal to integrate care for dual eligibles

Letter of May 19. 2013 posted here, including concerns about enrollment of nursing home residents into FIDA plans.

See other consumer advocacy efforts regarding the FIDA proposal posted here. 

April 30, 2013 - Consumer Advocates Meet with State Medicaid Director Jason Helgerson

As reported in the New York Times on May 1, 2013 --  

Advocates Say Managed-Care Plans Shun the Most Disabled Medicaid Users

At a meeting with the advocates for disabled people, New York State’s Medicaid director vowed to hold plans accountable when it came to enrolling the most seriously impaired seniors, participants said....  click to read full article ...  Mr. Helgerson agreed to address the serious concerns raised by advocates for seniors and people with disabilities -- from delays in enrollment due to technical computer coding problems to denials of service to high-need individuals.  

April 5, 2013 - New York’s 2012 Managed Long Term Care Report: An Incomplete Picture

The Coalition to Protect the Rights of New York’s Dually Eligible issued this "Incomplete Picture" Report as a critique of the NYS Dept. of Health's 2012 Managed Long Term Care Report, issued in December 2012.  The  State's Report does not provide the full spectrum of information that beneficiaries need to make informed health care choices -- For exampe, The 2012 Report presents the most favorable findings of consumer surveys, but fails to mention less positive but important findings from IPRO’s report, including the fact that higher need respondents in poorer health were significantly more likely to raise concerns about services than those in good health.  The Report fails to include any meaningful utilization data, showing the amount of and type of services provided by MLTC plans or the medical-loss ratios of the various plans.  The Report fails to comply with the Public Health Law that requires the report to  present information  in a way that allows beneficiaries to make meaningful comparison between plans.  Inadequate quality data is reported as well.  

February 27, 2013 - Due Process Protections Ensured in Assembly bill  A. 4996

Empire Justice Center calls for due process protections in Managed Long Term Care, supporting Assembly Bill A.4996.  See EMPIRE JUSTICE MEMO OF SUPPORT: ENSURE DUE PROCESS FOR CONSUMERS IN MEDICAID MANAGED LONG TERM CARE PROGRAM

December 7, 2012 -- New York State Assembly Hearing on managed long term care transitions.  

On December 7, 2012 both the Assembly committees on health and oversight, analysis and investigation held a hearing on the transition from fee-for-service long term care to insurance-based managed long term care.

Beneficiary advocates expressed concerns about the transition of this very vulnerable population into private managed long term care plans. Concerns included inappropriate reductions or interruptions of care, inadequate information for beneficiaries, and insurer capacity to take on the large number new beneficiaries. 

Beneficiaries being enrolled into managed long term care plans now will be enrolled into fully integrated dual advantage plans (FIDA) plans in 2014, if New York’s demonstration proposal is approved by the federal government. FIDA plans would cover a beneficiary’s managed long term care services, and provide Medicare, Medicaid, and drug coverage.

Many of the same concerns that apply to managed long term care implementation will apply to FIDA implementation.

During the hearing, advocates, legal service providers, health care providers, insurance plans, and state officials testified about managed long term care and FIDA plans, outlining how beneficiaries were affected, and how the state legislature can help improve the implementation process.

There was a consensus amongst many of the groups that the implementation roll out was occurring too quickly. The groups also noted that additional resources were needed to ensure adequate monitoring of health plans as managed long term care enrollment grows and FIDA plans are developed.

The Coalition to Protect the Rights of New York’s Dually Eligible presented testimony in three parts.

  • To read Part I of the Coalition’s testimony, click here --  re problems with managed long term care and the need for immediate legislative action 
  • Part II, click here -- re applying lessons from managed long term care implementation  to FIDA plans.
  • Part III, click here -   the need for robust beneficiary assistance and Ombudsprograms to help New Yorkers navigate these programmatic shifts.

The Empire Justice Center submitted this testimony calling for consumer protections. 

October 2012 - Letter from CIDNY Describing Inadequacy of ADA Appendices of MLTC Plan Contracts with NYS DOH. 

Analysis completed by the Center for Independence of the Disabled NY (CIDNY) found MLTC Plans woefully out of compliance with the aforementioned ADA requirements.  Letter to Mark Kissinger, Dep. Commissioner NYS DOH, dated  Oct. 5, 2012, from Susan Dooha, Exec. Director, CIDNY, posted at  http://tinyurl.com/CIDNY-MLTC-ADA, referencing Chart Comparing MLTC ADA Plan Compliance, posted at http://tinyurl.com/CIDNY-MLTC-ADA-chart-xls.  

August 29, 2012 - Consumer Letter to CMS Calling for Protections in MLTC

A letter was sent on August 29, 2012 from The Legal Aid Society, Empire Justice Center, NYLAG, CIDNY, and other consumer, disability rights and community-based organizations asking for further protections in rolling out MLTC.   Consumers ask that MLTC be rolled out more gradually, so that it starts with new applicants seeking home care only, rather the tens of thousands of people already receiving personal care/home attendant services.   Consumers also express concerns about appeal rights being limited if and when MLTC plans reduce services compared to what the individual previously received from the Medicaid program.  See the letter for other issues. 

March 2012 -- Proposed Incentives for  Plans to Provide Community Based Services

 Incentives for Community-Based Services and Supports in Medicaid Managed Long TermCare: Consumer Advocate Recommendations for New York State.    It is posted at http://wnylc.com/health/download/304/.  

In his written State of the State address, Governor Cuomo explicitly acknowledged the civil right of people with disabilities to live in the most integrated setting as affirmed in the Supreme Court’s Olmstead decision and set forth a proactive agenda for supporting people with disabilities in the community: community-based services, housing, and jobs. In response to this directive, consumer advocates recently released a proposal to incentivize community-based services and supports in New York’s Medicaid managed long term care system.

“As we move thousands of New Yorkers with disabilities and seniors into mandatory managed long term care, it is imperative that the state builds in the right incentives to support people with the most significant disabilities at home,” stated Susan Dooha, Executive Director for the Center for Independence of the Disabled, New York. “It is not only fiscally responsible, it is the law.”

Most states are recognizing the importance of incentivizing community-based services and the health plans are supporting this direction. The State already submitted its application for the 1115 waiver for managed long term care, but many decisions for implementation, structure, and contract requirements are still on the table.  These requirements will pave the way for the larger waiver the State is planning that will incorporate ALL Medicare and Medicaid services for dual eligibles.   The State's basic proposal on that waiver is posted online, with comments due on April 20th.  

“The time is now,” stated Trilby de Jung, Health Law Attorney at the Empire Justice Center. “If we are not proactive in the process, we will be forced to go back and fix our errors; at the detriment to seniors and people with disabilities who will find themselves in unwanted nursing facility placements.”

“Our proposals will strengthen the managed care plans' capability of serving people in their homes and communities, ensuring that the redesign of systems of providing long-term care services incorporate vital resources and consumer protections,” said Valerie Bogart, Director of the Evelyn Frank Legal Resources Program at Selfhelp Community Services, Inc.

The proposal was written by staff from Selfhelp Community Services, Inc., Empire Justice Center, Center for Disability Rights, and the Center for Independence of the Disabled -New York, and was signed on by numerous other consumer-advocacy organizations. 

December 2011 - Consumers Express Concerns to CMS

On December 27, 2011, Legal Aid Society, New York Lawyers for the Public Interest, and many other organizations expressed concerns to CMS in this letter.   These concerns include violations of due process in fair hearing appeals.

May 2011 - Letter to State Department of Health with Proposals for Implementation of MLTC

On May 2, 2011, Selfhelp Community Services led numerous organizations in submitting these comments, explaining numerous concerns about the expansion of MLTC


The letter from numerous consumer organizations to CMS in late Dec. 2011 expresses many serious concerns about whether high-need consumers will be able to obtain the home care services they need in order to live independently in the community, and avoid nursing home placement, if that is their wish.   The letter reviews many issues -
  • What information can consumers access to help them choose a plan?  Will the State create a "planfinder" type website to compare plan networks and coverage? Will Maximus provide individualized counseling to those who want it, and will its staff visit clients who cannot travel or speak on the phone in order to counsel them on their choices? 

  • How will consumers be referred to Maximus in the first place?  What role will the CASA offices have?  Where will Medicaid applications be filed?  

  • What standards will plans use to determine the number of hours needed, and will these standards vary from plan to plan?  

  • Will the MLTC plans have the incentive to place those people in nursing homes who  need very high hours of home care?  We are encouraged that the State is developing a modification of the capitation payments by establishing "risk corridors" to relieve the plans of the full risk of paying for care for the highest need individuals.  See Risk Corridor Presentation.  However, we urge the State to go further and ensure that these risk corridors give incentives to provide services in the community rather than in nursing homes for those who want to stay in their own homes.  Also, there must be oversight by the State of decisions by plans to provide services in nursing homes. 

  • Will the full right to a fair hearing, including adequate notice and the right to receive "aid continuing" while the hearing is pending be protected?   May the plans reduce services that have been provided, in many cases, for many years and enabled people with severe disabilities to live at home?

  • Will consumers be able to keep the same aides who have cared for them, often for many years, in the personal care/home attendant program?
  • Will plans carry out principles of "Disability Literacy," meaning the capacity to understand, communicate, and partner with people with disabilities with demonstrated understanding of their perspectives and beliefs concerning health behavior?  An example would be recognition of the preference for self-direction and informed choice, expertise in assessing needs for and willingness to provide adaptive equipment and environmental modifications, and other factors.

  • Will consumers who are or want to be in Consumer-Directed Personal Assitance Program, Lombardi (long term home health care program) still have full access to these unique services?  While the MLTC plans must offer CDPAP services, we question whether the CDPAP services will be truly consumer-directed as they are now in New York City. 

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