[Note: This article was written for the benefit of long-term care ombudsmen in New York State, who need to be familiar with these issues because they will come up in their practice. It may also be of help to residents or family members who are trying to make sense of the new and confusing rules concerning long-term care services and managed care.]
Introduction: Case Presentation
When a resident at one of my facilities came to me she was in a bind. She had come to the center for short-term rehab, completed her course successfully, and was now ready to go home. But something was holding her up.
She needed to have long-term care services set up for her in the community. The facility was arranging that through a specific MLTC (managed long-term care program). As a condition for acceptance this MLTC was requiring her to sign what is known as a “family backup agreement.” The agreement stated that she had to arrange “for a family member or substitute to participate in the patient’s essential care needs in the absence of the Home Care Worker.” If she didn’t agree to that provision, she would not go home.
The resident protested to no avail that she had no family backup available and neither wanted nor needed one. Yet the facility was insisting. She was afraid she’d have to remain in the nursing home forever.
There were two important things that she (and even her social worker) did not know:
- Such family backup agreements are illegal.
- The facility should not have been trying to sign her to this MLTC in the first place.
So was this poor woman condemned to remain in the nursing home forever? Before I relate the outcome of this case, some background will be necessary for those not familiar with the new transitions to managed care that have been occurring as a result of the state’s Medicaid Redesign Project. Here is a brief primer.
A Little History
New York has always been one of the most generous states in the Union regarding Medicaid spending. Costs were getting out of control, for at least two reasons: the need for Medicaid services has greatly increased, and Medicaid itself has been based on a model that has not proven cost-effective in its application. That model is called “straight Medicaid” or “fee for service” (FFS). In this model, health-care providers are paid separately for each service rendered (such as office visits, tests, and procedures). The incentive in such a model is to order as many services and tests as one can, to increase Medicaid reimbursements. If not carefully handled such a setup can easily lead to fraud, and the Attorney General’s Office has an entire unit, the Medicaid Fraud Control Unit, that investigates cases of Medicaid fraud.
When Governor Cuomo took office he resolved to change the entire system. He created the Medicaid Redesign Team to completely reform the way Medicaid works in New York State. The idea was to control costs by changing from a fee-for-service model to managed care. Instead of a fee for each service rendered, the managed care model works through the principle of capitation. Capitation means that instead of being paid separately for each additional item provided, the practitioner receives a fixed amount of money per patient per unit of time for the provision of health care services. Therefore there is no longer any incentive to provide as many services as one can get away with, because no additional reimbursements would be earned. Instead the incentive actually reverses, and plans can save more money the fewer services they give. There are supposed to be some protections in the system against providing fewer services than the patient actually needs, but the system is far from perfect.
Bottom line: Straight Medicaid is being phased out. With some few exceptions, people who need Medicaid long-term care services (specifically dual eligibles – those who have both Medicare and Medicaid – over the age of 21) will have to enroll in a managed-care program. On 9/14/2012 CMS granted New York State’s request to impose this requirement on qualified people living in the community. On 2/1/2015 this requirement was extended to people entering a nursing home. Ever since this so-called “nursing home transition” any nursing home resident who now enrolls in Medicaid must choose a managed care plan. Nursing home residents who have been Medicaid recipients prior to this transition date are grandfathered and can keep their FFS Medicaid, at least for now. They can, if they wish, voluntarily enroll in a managed care plan, but there is usually no incentive for them to do so. One thing to watch out for is managed care plans marketing themselves to nursing home residents and families who may not understand what they are being sold and what they might be giving up.
Types of Plans
We have already discussed capitation. The first basic distinction between managed long-term care plans is whether they are “partially capitated” or “fully capitated.” Partial capitation refers to plans that cover Medicaid services only. Full capitation refers to plans that cover both Medicaid and Medicare services.
Partially capitated plans include Managed Long-Term Care (MLTC); such plans are managed-care equivalents of Medicaid only, covering long-term care services either in the community or in the nursing home. Typically one may have an MLTC plan if one is Medicaid-eligible, in addition to regular or “straight” Medicare.
There are three main types of fully capitated long-term care plans:
- Medicaid Advantage Plus (MAP). First, a “Medicaid Advantage” plan by itself is a managed-care version of both Medicare and Medicaid for people who do not need long-term care services. The “Plus” part of the plan adds the long-term care services for people who need them. People enrolled in a MAP receive all Medicare and Medicaid services in the form of managed care.
(Note: Whenever the word “Advantage” occurs it is code for managed care.)
- Program of All-Inclusive Care for the Elderly (PACE). This program covers the same services as MAP but the services are better coordinated because they are centralized in one location with oversight by an interdisciplinary team. To enroll in PACE one must be 55 or older, live in the program’s service area, and require long-term care services.
- Fully Integrated Duals Advantage (FIDA). This program also covers the same services but offers advantages over MAP in providing an interdisciplinary care team and a more consumer-friendly appeals process. Services are better integrated as in PACE, and so FIDA may eventually make MAP obsolete.
(For the sake of completeness we might mention the Medicare Advantage plan, which unlike the others has nothing to do with Medicaid. This is just a managed-care version of Medicare and is known as Medicare Part C. It substitutes for Medicare Parts A and B and in most cases also Part D. In comparison to regular Medicare, which has no limits on out-of-pocket costs, Medicare Advantage programs do have annual limits making Medigap policies both unnecessary and impermissible. They also often offer extra benefits. The price one pays for all this is being tied to a limited network of providers.)
So if you are a dual eligible (for both Medicare and Medicaid) and need long-term care services, which is better, partial capitation or full capitation? As usual, there is a tradeoff. The fully capitated programs mentioned above offer advantages such as better integration of services and “one-stop shopping,” as well as possible additional benefits. This is fine as long as all the providers you want are in the plan’s network. If you want more freedom to choose your own doctors, straight Medicare is almost universally accepted. Many recipients in the community who want the freedom to move around and select their practitioners according to their needs and life situation are best served by a combination of MLTC and straight Medicare. On the other hand permanent nursing home residents, whose provider options are already very limited, might be well served by a FIDA or PACE plan that contracts with their facility.
The rules are a little different for those with Medicaid only (no Medicare). To get long-term care services they must enroll in a different type of managed Medicaid plan called “Mainstream MMC.” Since this is unusual in the populations we normally deal with, we won’t go into it here.
The ICAN Ombudsman
An important resource to know about is the ICAN Ombudsman Program. ICAN is the Independent Consumer Advocacy Network. Its purpose is to assist Medicaid-eligibles who need long-term care services. Like the Long-Term Care Ombudsman Program, the ICAN Ombudsman Program is independent of any plan or provider and is totally client-oriented. The ICAN Ombudsman helps the consumer navigate the ever-changing and confusing maze of managed long-term care. ICAN representatives support consumers by providing information about managed care plans, troubleshooting problems, and helping people decide whether FIDA would be a good choice for them. They deal a lot with FIDA but hardly at all with MAP, another advantage that FIDA has over MAP.
There has been an unfortunate confusion of terminology between the two different “ombudsman” programs, ICAN and the Long-Term Care Ombudsman Program (LTCOP). When the ICAN “ombudsman” program was first announced there was some anxiety in the long-term care ombudsman world about possible competition or interference. Those concerns have proved to be unfounded. ICAN and LTCOP do not compete with each other. The ICAN “ombudsman” does not work on-site in the nursing home; the advocates at ICAN work through telephone contact with the consumer. They do not intervene directly with nursing home staff as LTCOP does. They do not have the statutory access to nursing homes that LTCOP has. They do have intensive training in one area of long-term care of which most LTCOP advocates have at best peripheral knowledge. It would probably have been better to call the people at ICAN “counselors” rather than “ombudsmen” but the terminology is what it is.
It is most important for the long-term care ombudsman to see the ICAN ombudsman as a valuable resource. LTCOP ombudsmen should offer information about ICAN to families or residents who are struggling with these issues, and may even consult ICAN themselves when necessary. In one case I obtained a very fruitful result by arranging a conference call with a family member and an ICAN representative. The ICAN number is (844) 614-8800.
Conflict-Free Evaluation and Enrollment (the CFEEC)
It turned out this new system of managed care had a big flaw. MLTC plans were originally responsible for determining an applicant’s eligibility for long-term care services. Because of the capitation system, in which the plan is paid the same for each client regardless of the quantity of services it provides, plans had an incentive to reject very disabled people and to accept high-functioning people who would cost them little. And that is what they did. They showed a preference for healthier clients, even people who didn’t require home care, and turned away those who needed them most. Because of this the Conflict-Free Evaluation and Enrollment Center (“CFEEC”) was established. It became effective in NYC starting October 1, 2014 (Manhattan and Bronx) and November 1, 2014 (Brooklyn, Queens, and Staten Island). (Details of the CFEEC implementation are outlined in Office of Health Insurance Programs MLTC Policy 14.06.)
The CFEEC is administered by New York Medicaid Choice (NYMC), a state program set up under the Department of Health to assist consumers, process enrollments, and handle complaints regarding managed long-term care. NYMC contracts with Maximus, a company that provides healthcare management services, to handle all matters relating to CFEEC, including assessing clients and determining their eligibility for managed long-term care. NYMC can also help consumers make decisions about which plan is right for them.
Thus instead of being assessed first by the individual plan, the client is assessed by Maximus. An assessment by the plan comes later. The Maximus assessment is called a “conflict-free evaluation” (CFE), or sometimes even the term “CFEEC” is used; you may find the two acronyms employed interchangeably. To be accepted the client must require long-term care services for at least 120 days. After the assessment, Maximus sends the client a letter with information about which of the four managed care plan types (MLTC, MAP, PACE, or FIDA) the client qualifies for. If the assessment determines that the client is ineligible, the client will receive information about how to request a fair hearing. NYMC should be able to help the client choose a plan, but those who need assistance would be well-advised to contact the ICAN Ombudsman.
It should be noted that the conflict-free evaluation “center” is not a place; it is a process. All evaluations take place in the home, either in the community or in the nursing home. Approval by Maximus is good for 60 days; after that, clients who have not yet enrolled in MLTC must reapply.
It is still up to each individual plan to determine how many hours it will give the client, but once Maximus has accepted an applicant the plan cannot simply turn that person away. If the plan disagrees with the CFEEC assessment it can appeal Maximus’s decision and initiate a dispute resolution process. The Department of Health Medical Director has the final say; if the CFE is upheld then the plan must accept the client. Yet sometimes plans will try to get around this, even using illegal means. A very common way of doing this is for the plan to insist that a family member provide services that are really the plan’s responsibility. The case with which this discussion began is an example.
Now for an important question: Which applicants for MLTC must be referred to CFEEC? It is important for the ombudsman to understand this issue in order to know whether a facility’s discharge planning is serving the resident properly. However, the information the Department of Health provided regarding this question and nursing home residents is complicated. It becomes a little clearer if we keep in mind that the principal purpose of the CFEEC is to determine whether a person qualifies for community-based long-term care services (CBLTC).
In theory, all individuals not already enrolled in MLTC and seeking CBLTC for more than 120 days must go through the CFEEC. The situation is also clear for short-term nursing home residents who plan to return to the community. If they will need CBLTC on their return and do not already have an MLTC plan, they must go through the CFEEC.
Things get complicated when we consider long-term nursing home residents. Nursing home residents who already have an MLTC plan (either because they voluntarily enrolled in one or they were admitted to the nursing home after 2/1/2015 and had to enroll in one) do not have to go through CFEEC. A permanently placed nursing home resident who stays in the nursing home and voluntarily enrolls in MLTC does not need CFEEC because permanent nursing home placement is already a higher standard of care than CBLTC and so no CFEEC determination is necessary; the requirement has already been met.
What about a permanently placed nursing home resident who becomes able to return to the community? The Office of Health Insurance Programs MLTC Policy 15.06 states that any such residents who were placed in the nursing home before 2/1/2015 (and thus were not obligated to enroll in MLTC) must be routed through CFEEC because their eligibility for CBLTC is not automatic. But remember that a permanently placed resident who stays permanently placed can enroll in MLTC without CFEEC, because such a person has already met the criteria for long-term care services. So it is technically possible to enroll the resident in MLTC without CFEEC before discharge planning, and then start the discharge process with the resident already in MLTC so no CFEEC required. This would appear to violate the spirit if not the letter of the policy, and is something about which an ombudsman might raise an issue. And it is not just hypothetical. Some nursing homes still choose the MLTC for the resident being discharged without first going through CFEEC.
In the case with which we began, the resident came for rehab and was never permanently placed so there is no doubt that CFEEC was required. A conflict-free assessment would not restrict her to a plan with which the nursing home has a relationship but might not be the best one for her, and would assure her of not being rejected because she needs too many services.
Family Backup Agreements
Earlier it was mentioned that a plan will sometimes require a family member to provide services in the event that the home care worker may be unavailable. A plan may do this either to evade its full responsibility or to try to weed out clients who need a lot of services. But plans also routinely require the presence of a family member to supervise the care, and that is not illegal. It is important to understand the distinction.
If a client cannot provide basic direction for his or her own care, then the plan can and should ask that a family member or other individual be available to do so. According to New York State Law 18 NYCRR 505.14(a)(3)(ii), “self-directing” means “capable of making choices about … activities of daily living, understanding the impact of the choice, and assuming responsibility for the results of the choice.” According to the statute, if the client is not self-directing then equivalent supervision must be provided by another individual. The plan has a right to ask this of the family.
But sometimes the plans go too far and ask for more than this. The agreement my resident was asked to sign would have obligated her to “make arrangements, if necessary, for a family member or substitute to participate in the patient’s essential care needs in the absence of the Home Care Worker.” This crosses the line; if a home care worker fails to show, it is the responsibility of the plan, not the client, to provide a substitute. The Office of Health Insurance Programs MLTC Policy 13.10 states: “The MLTC plan shall not engage in any communication that infers the plan could impose limitations on provision of services, or requires specific conditions of family/informal supports; any of which could be viewed as an attempt to dissuade a transitioning recipient or interested party.” Such family backup agreements are technically illegal, but a client who receives one does not have a lot of recourse. One can strike out the offending language and see if the plan will accept it, file a complaint with the Department of Health by calling (866)712-7197 (the ombudsman can provide this number if the client needs it), or look for another plan.
It should be noted that according to the DOH (3.27.15 CFEEC FAQ Question 5) it is permissible for MLTC plans to speak to residents seeking CBLTC and inform them about the plan’s provisions and benefits. But plans cannot try to sign people up before they have passed through CFEEC.
Back to the Case
While the issue was complicated, the resolution was simple. I explained to social services that the MLTC should not be trying to sign this resident up before she has been cleared through CFEEC. I then educated the resident on her rights not to accept this MLTC with its improper backup agreement and to contact Maximus for a CFE. I gave her the number of the ICAN Ombudsman and by working with that agency she went through the CFEEC process, found an MLTC that met her needs, left the nursing home and is now living successfully in the community.