State Dept of Health Moves to Implement MLTC Changes Enacted in 2018-19 NYS Budget

Though the NYS legislature and Governor Cuomo agreed on a State Budget on April 1, 2018, many of the changes in the Managed Long Term Care program are still in the planning stages for implementation.   Here is the status of state budget provisions affecting Medicaid for seniors and people with disabilities, as of July 5, 2018.   NEW:  See Info on lawsuit filed challenging law regarding approval of advertising by Consumer Directed Personal Assistance organizations. 

8/29/18 Update:  Policy Guidance issued on limitation on number of licensed home care services agencies that an MLTC plan may contract with.  See below.

Oct. 25, 2018 Update:   NYS has reopened the comment period until Nov. 22, 2018 on the change that will exclude people permanently residing in nursing homes for 3 months from MLTC plans.  Read more here. 

WINS FOR CONSUMERS:   

The Legislature Rejected  Proposals to Cut "Spousal Protections" that would have impoverished married couples, denied critical medical and home care to sick spouses and children, and increased institutionalization.     See NYLAG budget  testimony

1. Spousal/Parental Refusal  Remain Intact  –The Governor’s bill would have eliminated spousal refusal for many needy spouses as well as children with cancer and other severe conditions whose parents cannot afford the high cost of their care.  While many New Yorkers benefit from the new expanded eligibility limits under the Affordable Care Act [ACA], nearly a million low-income New Yorkers are over age 65 or have permanent disabilities.  For them, Medicaid remains unchanged by the ACA, with so-called "non-MAGI" income limits well below the Federal Poverty Level - singles may have only $842/mo and couples only $1233/mo.     Spousal/parental refusal provides a vital protection for vulnerable populations, including abused spouses and children.   

The Governor's proposal would have maintained Spousal Refusal only for members of  Managed Long Term Care  (MLTC) plans, denying this protection to those same married individuals when they initially apply for Medicaid in order to enroll in an MLTC plan.   Also, many people who need home care are not allowed to enroll in MLTC plans at all -- those receiving Hospice Care, and those whose disabilities are less severe, who  need only "housekeeping" services."    And spousal refusal would have no longer been allowed for  married individuals who  do not need MLTC or other home care but still need Medicaid or the Medicare Savings Program  for help with Medicare out-of-pocket costs, 

2. Spousal Impoverishment Resource Allowance remains at  $74,820 instead of being reduced to the lowest allowed by the federal government -- only $24,180.   This is the amount of resources  that the spouse of an MLTC enrollee or a nursing home resident may keep.       

The annual cap on Physical Therapy (PT) visits was increased from 20 to 40 visits per year.

Unfortunately, the budget leaves unchanged the cap on Speech and Occupational Therapy visits at 20 per year for each type of therapy.  But the increase in PT visits to 40 visits per year will improve access for those in managed care plans as well as those using Medicaid fee for service.  

Alarming Changes in the MLTC Program Enacted

The legislature rejected one of the Governor's proposals that would have excluded from  MLTC plans those with an "Uniform Assessment System"  score of 9 or lower.   These individuals have been determined to need the least amount of personal care services.    However, other changes were enacted that consumer advocates fear may be harmful to consumers.  NYLAG  was one of many organizations that submitted testimony opposing many of these changes.  See NYLAG's  2018-19 Testimony posted here.   Crain's New York Business quoted NYLAG's testimony stating that some of the changes in MLTC will  “increase barriers to access” for those who need care.  See "State looks to shrink financial 
burden for elder care"  by Caroline Lewis, Feb. 21, 2018. 

The State Dept. of Health sent a memorandum to MLTC plans describing many of the changes in April 2018, posted here.  Please note that some of the implementation dates in that memorandum have been extended.  

1. Lock-In - For the first time since MLTC became mandatory 5 years ago,  members who enroll in a new plan after Dec. 1, 2018 will be barred from changing plans for 9 months, after the first 90 days enrolled in the plan.  See this article for more about this change.

2. People "Permanently Placed" in a Nursing Home for three or more months will no longer be able to enroll in MLTC plans, and those who are already in MLTC plans when they enter a nursing home will be disenrolled after 3 months of permanent placement.   This is a reversal of the MLTC program expansion that began in 2015. Since then,  all nursing home members have been required to enroll in or remain in managed care and MLTC plans.  See this article.   Now, people in nursing homes will be disenrolled from their MLTC plans after 3 months of permanent placement.  Consumers fear that when MLTC plans are no longer responsible for the cost of nursing home care, the plans will have   an incentive  to place members with high needs in nursing homes, rather than approve more hours of home care needed for the member to remain in the community.   

There is also a concern that it will be more difficult for an individual in a nursing home - now disenrolled from an MLTC plan -- to obtain home care services to return to the community.   To address this, NYS DOH has said that a Conflict Free Eligibility assessment will not be required if the consumer seeks to re-enroll in an MLTC plan within 6 months of the disenrollment.  

Status of Implementation:   Though DOH expected that current MLTC members permanently placed in nursing homes would be disenrolled from MLTC plans on July 1 2018, this has been postponed while procedures are developed and CMS approval is obtained.  There are reportedly about 23,000 MLTC members in nursing homes.  

In September 2018, DOH submitted a request to CMS to amend the 1115 waiver that governs MLTC, to exclude permanent nursing home residents from MLTC enrollment after 3 months.  The  State's proposal and accompanying documents are posted on the State's MRT webpage here.   

• See the State's proposed notice to MLTC members describing the change here.

• See the State's proposed notice to be sent by NY Medicaid Choice  before it disenrolls one of the 23,000 MLTC members who have now reportedly been in nursing homes for 3 or more months.. and members in the future.  The deadline to submit comments to CMS was Friday Oct. 26, 2018.  Many consumer advocacy organizations submitted comments which are available on the CMS website here.   Click on these links for comments by NYLAG, the Legal Aid Society and other organizations here. 

NYLAG's comments on the rule state that the "clock" should not start ticking toward  three months until disenrollment if the member intends to return home.  Disenrollment will make it much harder to return home.   The proposed procedures do state that the period in which Medicare is covering all or part of a rehab stay will not count toward the 3 months of permanent placement.   Also, NYLAG and other consumer advocates urged that plans must give notice of a decision to consider them "permanently placed," which the consumer should have the right to appeal.   These decisions must be made with involvement of the consumer, not unilaterally by a managed care plan or nursing home. 

The comment period to submit comments to the State on this proposal is  open until November 23, 2018.  Comments can be submitted via email to mltcinfo@health.ny.gov. In the subject line please indicate Proposed NH Benefit/Lock In 1115 Amendment Comments.   

3. Disenrollment from MLTC of a consumer who has received  no home care or other MLTC services in a calendar month without the consumer having  notified the plan.  The member receives notice of this involuntary disenrollment from NY Medicaid Choice, and has appeal rights.  

4. Limit on Number of Home Care Agencies an MLTC plan may contract with –  Beginning Oct. 2018, MLTC plans must reduce the number of  licensed home care services agencies (LHCSA's) they contract with  to one per 75 enrollees downstate, and one per 45 enrollees upstate.  In 2019 the numbers go down further.  This raises  concerns about disruption in care -- consumers may lose longtime aides who were employed by an agency that no longer contracts with the MLTC plan.  Plans may not have enough home care agencies to staff all of their cases.  Consumers may lose access to aides who speak their language and understand their culture. See April 10, 2018. article in Crain's NY Business. This cap may increase barriers to consumer access, as many plans already do not have an adequate network of home care provider agencies to provide authorized services.   Consumers have rights under federal regulations to adequate networks of providers.

DOH has issued guidance to implement this legislative requirement to downsize the number of LHCSAs:

• DOH Policy Guidance - Licensed Home Care Services Agencies (LHSCA) Contract Limitation Guidance, Aug. 17, 2018  (posted on MRT 90 webpage) 

• DOH Dear Administrator Letter DAL DHBS 18-03, Aug. 23, 2018 SUBJECT: LHCSA Regulatory Requirements  (this is expected to be posted here -- until it is can be downloaded here) 

A related change is  enactment of  a two-year moratorium on the  approval of applications seeking the licensure of Licensed Home Care Services Agencies (LHCSAs). This moratorium became effective on April 1, 2018 and will continue until March 31, 2020.  Guidance on this moratorium and its exceptions, along with applicant information is at this link. 

5. Limit on Marketing by CDPAP agencies - The "fiscal intermediaries" that provide Consumer DIrected Personal Assistance Program (CDPAP) services must  now submit any marketing materials to the NYS Department of Health for approval.   If  they publish  two or more  ads that are either “false or misleading” or not approved by DOH, their license will be revoked.  The law has the potential to reduce access to the CDPAP program,  which has long been lauded as a cost-saving model that promotes consumer autonomy and the Olmstead integration mandate.   
   • The NYS Consumer Directed Personal Assistance Association (CDPAANYS) has filed a lawsuit challenging this requirement for violating the First Amendment.  See article in LegalNewsLine on July 3, 2018  here -- "Nonprofits challenging New York law regarding approval of Medicaid program advertising."  See CDPAANYS   information here. Among other issues, the association points out that nursing homes, hospitals and other providers are not restricted in advertising their services, but CDPAP FI's are.  

Backgrounder - NYS budget 2018-19 as proposed by Gov. Cuomo 

Here is information about  the originally proposed New York State budget for 2018-19.  Click here to see the actual  Health and Mental Hygiene (HMH) Bill  and the Governor's Health and Mental Hygiene (HMH) Memorandum in Support.