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Central Jersey Legal Services
Keeping the promise of justice for all.
Serving low-income residents of Union, Middlesex, and Mercer Counties
What we will cover today:• Overview of Managed Long-Term Services and
Supports (MLTSS)
• New Jersey Experience
• Consumer Advocacy: Effective Strategies– Using the 2014 Person-Centered Planning Rules– Appeals and Fair Hearing Strategies
• Role of the Ombudsman in Wisconsin
Story #1
HCBS waiver participant’s PCA hours are reduced by ½ from 36 hrs/wk to 18 hrs/wk after MCO nurse shows up at house with little notice
– Participant speaks Portuguese– She is a recently widowed and 85– Nurse/Care Manager, who she has never met
before, is 40 something year old man
Story #2
Young adult with TBI is placed in a nursing home with no special TBI services and all PT/OT therapies are cut within weeks – the MCO seems unfamiliar with TBI NF and HCBS services
– Prior to MLTSS, NJ had TBI waiver and SCNF TBI units– All but 1 TBI special nursing facility dropped out of Medicaid
after July 1, 2014, and that NF won’t admit this client– MCO won’t provide network info about HCBS providers, and
then says none will take client because he needs ADL assistance
Story #3
NF resident wants to return home and is told by her MCO care manager that she can’t – she needs too many hours of service and no provider agency can cover weekends
– Resident still maintains affordable apartment – MCO care manager never discusses self-direction– MCO says cost cap “budget” is proprietary – No Notice of Action is provided to Resident
Managed Long-Term Services and Supports
“MLTSS”
MLTSS
LTSS Delivery System = Managed Care
• Managed Care → Other Health Care Services (i.e. PCP, Acute, Behavioral Health)
• Case or Care Management is Key
• Mechanisms include:– 1915(c) HCBS waivers combined with 1915(b) waivers– 1115 Demonstration Waivers– 1115 Demonstration Waivers with 1915(c) HCBS Waivers
MLTSS can includes:
Institutional Services
Nursing Home
HCBS
Assisted Living Adult DayPersonal Care AssistantHome-Delivered MealsPERSHome Modifications
Why or Why NotManaged Care?
Purported Benefits
• Stability in state budgets• Better care coordination• Ability to offer
supplemental benefits• Fewer silos• Better quality control
Arguments Against
• Incentive to deny or reduce services
• State trying to relieve itself of responsibility
• MCOs are not culturally attuned to Medicaid protections
• Not accountable to private citizens (i.e. claims of proprietary protections)
MLTSS: Common Problems• Inadequate or inappropriate service plans
– Including reductions/terminations during transition to MLTSS
• Cost thresholds for HCBS– Sometimes also for nursing facility services.
• Caregiver are “forced” to provide services– Natural supports should be voluntary
• Poor assessment tools– Often developed by MCO and applied contrary to law
MLTSS in New Jersey
MLTSS: New Jersey’s Experience• 1115 Comprehensive Waiver: CMS approved October 2, 2012
– Includes MLTSS among other changes to Medicaid program
• Implementation of MLTSS was delayed until July 1, 2014
– MLTSS Steering Committee
– 4 Workgroups (i.e. Assessment to Appeals and Quality Measures)
• Four 1915(c) HCBS waivers were transitioned into MLTSS
– 12,000 waiver recipients were reassessed in 1st 6 months
– No prohibition or state review of adverse service changes
– Weak data reporting requirements in STC
MLTSS: New Jersey’s Experience• New PCA Functional Assessment Tool
– New PCA tool wasn’t implemented until Jan. 1, 2015
– Lack of transparency around tool initially
– Summer 2015: State webinar to advocate/families
• Grievances, Appeals, and Access to State Fair Hearings
– Standardized Notice of Action. . .but!!!
– Continuation of Services until outcome in MCO Appeals (automatic)
and in Fair Hearings (must be requested)
– VERY CONFUSING 3 stage appeal process
• Strong Special Terms and Conditions and Contract Provisions
!Transparency!• CMS Waiver Approval
Process• Research Goals - §1115• Contract → Website• Reporting requirements
– Quarterly Public Reports (Kansas)
• Track Appeals and FHs• Track reductions and
terminations in 1st year
• Capitated Rates and Cost Cap Thresholds
• Amounts paid to providers
• Standardized Assessments and criteria for service authorizations
• Quality Measures and Performance
Consumer Advocacy Strategies
Using Person-Centered Planning Rules and the Appeals/Fair Hearings
Processes to Win
2014 Person Centered Planning Rules
• Rules are part of the Centers for Medicare and Medicaid (CMS) 2014 HCBS settings rule
• HCBS Settings Rule → State Transition Plans– Up to 5 years
• PCP rules → Effective March 17, 2014• PCP rules apply to*:– 1915(c) HCBS waivers and 1115 demonstration waivers– 1915(i) state plan HCBS benefits*1915(k) Community First Choice → 2012 PCP rules
Rule in 3 Parts
• The Person Centered Planning Process
• The Person Centered Written Plan
• The Plan is Reviewable and Subject to Change
The Planning Process
• Consumer leads the planning process– Must be timely– Occur at times and locations convenient to LTSS consumer– Include people chose by LTSS consumer
• Consumer empowered → informed choices– MCO → Information and Support = Informed
Choice– Must offer informed choices regarding services
and supports• Cultural Competency and Language Access
The Written Service Plan
• Must reflect Identified Need & Preferences
– Plan must reflect strengths and preferences
– Plan must reflect goals and desired outcomes
– Services and Supports important to meet needs identified through assessment of functional need
Assessment of Functional Need
• Medically Necessary vs Functional Need
• Tool should measure TOTAL need: beware the assessment ≠ service plan
• Advocacy Goal: Standardized, transparent assessment tool that is person-centered in design and in application (i.e. MNChoices incorporates quality of life domains)
The Written Service Plan
• Must include Paid & Unpaid Services and Supports, as well as Providers
NOTABLY: Natural Supports are unpaid supports that are provided voluntarily.
The Written Service Plan
• Must be finalized and agreed to, with the written informed consent of the LTSS consumer
• But LTSS consumers still have their appeal and fair hearing rights:
Constitutional Due Process Protections
Plan is Reviewable & Subject to Change
• At least every 12 months
• When the LTSS consumer’s circumstances change
• At the request of the LTSS consumer
Resources:
• “A Right to Person Centered Planning”– http://justiceinaging.org/wp-content/uploads/201
5/04/FINAL_Person-Centered_Apr2015.pdf
• “Q&A: Person Centered Planning Changes”– http://www.healthlaw.org/publications/browse-all
-publications/q-a-person-centered-planning-changes
Grievances, Appeals and Fair Hearings
• Did the MCO engage in an ACTION?
– If yes → before, after, instead of, at the same time
Internal MCO Appeal
State Fair Hearing
– If no → MCO grievance (e.g., rudeness by customer service rep)
What is an MCO Action?
• Denial or limited authorization of a requested service
• Reduction, suspension, or termination of previously authorized service
• Failure to provide services in a timely manner
MCO must give written NOTICE OF ACTION
Right to Continuation of Services
• Right is incorporated into both the Medicare Fair Hearing regulations and the Medicaid Managed Care
• Some issues around “prior authorization” periods (proposed regs may fix)
• State work-a-around: Kansas and New Jersey
MCO Appeals
• Right to an expedited appeal
• Right to in-person or in-writing
• Right to case file, including medical records
• Right to introduce evidence & make arguments
Medicaid Fair Hearing
• Right to examine Medicaid file
• Right to offer evidence and make legal arguments
• Right to cross-examine witnesses
Resources• “What’s in a Notice? How Notices of Action Protect
Consumers in Medicaid Managed Long Term Services and Supports.”– http://justiceinaging.org/wp-content/uploads/2015/02/Advocates-Guide-for-
Notices-in-Medicaid-Managed-LTSS.pdf
• “Medicaid Managed Care Rules: Key Considerations for Aging Advocates.”– http://justiceinaging.org/wp-content/uploads/2015/06/Medicaid-Managed-C
are-Proposed-Rule_Key-Considerations-for-Aging-Advocate
