Advocacy Strategies: Managed Care Gwen Orlowski Central Jersey Legal Services

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 Day  Personal Care Assistant  Home-Delivered Meals  PERS  Home Modifications

Why or Why Not Managed 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 1 st 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 1 st 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” – content/uploads/2015/04/FINAL_Person- Centered_Apr2015.pdf content/uploads/2015/04/FINAL_Person- Centered_Apr2015.pdf “Q&A: Person Centered Planning Changes” – all-publications/q-a-person-centered-planning- changes 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.” – Notices-in-Medicaid-Managed-LTSS.pdf Notices-in-Medicaid-Managed-LTSS.pdf “Medicaid Managed Care Rules: Key Considerations for Aging Advocates.” – Care-Proposed-Rule_Key-Considerations-for-Aging-Advocate Care-Proposed-Rule_Key-Considerations-for-Aging-Advocate

Turn it over to Heather - Thank you!