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NYS Medicaid Redesign Team II (MRT) - Status of 30-Month.Lookback, 3-ADL Restrictions on Home Care, NY Independent Assessor
11 Dec, 2024
This article gives updates on the Medicaid changes enacted in the 2020 NYS Budget under the "Medicaid Redesign Team II" or MRT-2:
Neither the 30-month lookback or the 3-ADL eligibility restriction can start until CMS certifies that the state has spent federal funds under the American Rescue Plan (ARPA). The ARPA law has a 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. Before ARPA, another COVID law called the Families First Cares Act (FFCRA ) also forbade States from restricting eligibility for Medicaid until the end of the quarter in which the Public Health Emergency PHE ends. The PHE has been declared over, but ARPA still restricts NYS from implementing the lookback. To track when CMS issues a "close out" letter that the ARPA funds have been spent, see this CMS website.
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LOOKBACK - DOH has informally stated that the earliest date for implementation is in 2025 - though the date on NYS MRT 2 webpage is still March 31, 2024.
The lookback cannot begin until the federal Medicaid agency - CMS - approves NYS's spending of American Rescue Plan (ARPA) funds. See more here about ARPA and how to track when CMS says the ARPA restriction is over.
Once the lookback 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.
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The start date has been pushed back several times because of continuing federal requirements enacted as part of COVID relief.
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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.
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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.
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On May 5, 2021, NYLAG submitted comments on the State's March 2021 proposal to CMS to amend the 1115 waiver to allow the lookback to apply to MLTC enrollment (PDF). 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.
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CMS "Completeness letter" dated April 7, 2021 - (Web) - (PDF).
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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
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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.
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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.
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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.
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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).
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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).
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VOICE SUPPORT TO REPEAL THIS CUT: Support legislature bill S328 (Gustavo Rivera)/A6346 (Amy Paulin) that would repeal the ADL thresholds, which advocates contend discriminates against people with various disabilitiies who will be denied services.
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, as part of the NYIAP assessment. See above. 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 2024 or 2025, 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).
Side note: This will ELIMINATE stand-alone 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.
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DOH is scaling back usage of MLTC plans that are “partially capitated”–meaning that Medicare services are not included. They will be expanding “fully capitated” plans – which are Medicaid Advantage Plus and PACE. There will be expanding “fully capitated” plans – which are Medicaid Advantage Plus and PACE. The FIDA program was fully capitated but it closed last year. (sec 5) Read about types of plans here.
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DOH is setting a cap on enrollment by individual MLTC plans, in an effort to limit the rapid growth in certain plans, which may result from aggressive marketing by the plan and its contractors. The penalty for exceeding the cap will be withholding of up to 3 percent of the premium.
SIDE NOTE – NYLAG fears that plans will control their enrollment by excluding the high-need consumers while welcoming those with lower needs(sec. 5).
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Instead of a nurse assessment twice a year, MLTCs will now assess once a year unless there is a need for an additional assessment. (sec. 22). The assessments are by NY Medicaid Choice.
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Transportation will be carved out of MLTC service package–DOH will contract with a transportation broker. (Part LL, sec. 2)
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Mandatory Auto-Enrollment of dual eligibles enrolled in Medicare Dual Eligible Special Needs Plan (Dual-SNP) into Medicaid Advantage plans when they turn 65, or into Medicaid Advantage Plus (MAP) plans if they receive home care. This is part of the push to the “full capitation” mega-plans that cover both Medicaid and Medicare. Initially, this will primarily affect people who had MAGI Medicaid under age 65, then are transitioned to non-MAGI Medicaid at 65. Most were in mainstream Medicaid managed care plans, so they will be transferred to the “sister” Medicaid Advantage Plan of the same company. (Sec. 6) (Medicaid Advantage is like Medicaid Advantage Plus except these plans do not provide any Medicaid long-term care services. Only MAP plans provide Medicaid long-term care services).
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New applicants for Medicaid seeking home care will no longer be informed of the availability of CDPAP. (sec 17).
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Various limits on CDPAP access, such as new people approved for Medicaid will no longer be informed of the availability of CDPAP services.
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2020 Budget required DOH to procure 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 issued guidelines and standards for plans and local districts to make appropriate and indivdiualized determinations for utilization. A uniform "tasking tool" that would presumably 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.
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.
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