DOH Provides Preliminary Plans for Implementation of MRT 2 Initiatives

Last week, Department of Health (DOH) staff presented preliminary plans for implementation of key budget initiatives to representatives of Managed Long Term Care (MLTC) plans. This meeting followed closely on a similar meeting with representatives of home care agencies, summarized here. The following are highlights of the MLTC-focused meeting:

Personal Care Services (PCS) and Consumer Directed Personal Assistance Services (CDPAS) Proposed Regulations

The Department briefed the associations on its plans for implementing budget provisions and proposed regulations that require a higher eligibility standard for PCS and CDPAS, independent assessments of eligibility, independent physician evaluations and orders, and medical review of cases with authorizations in excess of 12 hours per day. These regulations are summarized briefly here. In advance of the meeting, LeadingAge NY submitted to DOH a list of questions and concerns pertaining to the proposed regulations. The following issues were discussed:

• Association representatives raised the daunting prospect of implementing these major changes by Oct. 1^st. DOH responded that it has been charged with launching the PCS/CDPAS changes by Oct. 1^st.
• DOH noted that it intentionally omitted various operational details from the proposed regulations in order to permit them to be fleshed out collaboratively with stakeholders through sub-regulatory guidance or contractual provisions. For example, timelines for the completion of various steps in the enrollment and reassessment processes were omitted with the expectation that they would be included elsewhere. The Department is looking for recommendations on the timing of each of the steps in the process.
• As previously noted, Maximus will administer the Independent Assessment (IA), independent physician evaluation, and independent physician review process for the first two years.
• The new minimum need/activities of daily living (ADL) eligibility criteria will apply only prospectively to new applicants for PCS/CDPAS. 
• The Conflict-Free Evaluation and Enrollment Center (CFEEC) and IA will be combined, and the Independent Assessor will make the determination that an applicant meets the new ADL requirement. In order to qualify, an applicant will have to meet the 120-day continuous need requirement and the ADL requirement.
• The IA determines only eligibility; it does not determine the level of services needed. DOH believes that the IA’s eligibility determination would be subject to a fair hearing.
• DOH is considering the use of telephonic or telehealth modalities for the IA and the Independent Medical Exam (IME). It is also considering a requirement of some face-to-face element of the independent medical review of high needs cases. 
• A new IA will not be necessary when there is a plan-to-plan transfer. The IA is effective for a year, unless there is a change in condition.
• In addition to the IME, it appears that an applicant will have to present a physician’s “note or form” indicating the need for community-based long term care (LTC) services as part of the financial eligibility process (see below). It appears that this would be from the applicant’s personal physician, although this was not clearly described in the meeting. It is also unclear whether the IME physician order will satisfy the medical order requirement in the licensed home care services agency (LHCSA) operating regulations.
• Plans will continue to have visibility into the Uniform Assessment System (UAS) and will continue to receive a nightly feed, as will Maximus; case lists will continue, as will the UAS enrollment record.
• DOH will impose time frames for Maximus to complete assessments and special assessments for change in condition. 
• If the plan of care at enrollment, after reassessment, or in response to a member request provides for greater than 12 hours of PCS daily, the member is referred for an independent medical review by the clinical review panel (CRP). The CRP makes a recommendation – it does not make any determination, and its recommendation is not appealable. It does not recommend numbers of hours, but may recommend alternative services. The recommendation does become part of the administrative record for fair hearing purposes.
• Conflict of interest provisions for home care agencies that perform assessments will continue.
• DOH will try to include provisions in the Maximus contract that promote continuity of assessments with the same nurse. They will also survey the consumer experience.
• DOH will use the most recent assessment in the relevant time period for quality measurement.

Transfer of Assets Penalty for Community-Based LTC Services

The State Fiscal Year (SFY) 2020-21 budget also included a new 30-month lookback period for asset transfers by new applicants for Medicaid for community-based LTC services. DOH plans to implement the lookback period as follows:

• The 30-month asset transfer lookback period will be applied to aged, blind, and disabled individuals seeking any community-based LTC service, except 1915(c) or (d) waiver services, on or after Jan. 1, 2021. DOH is uncertain whether it may, under federal regulations, impose the lookback penalty in connection with eligibility for state plan services delivered under 1915 waivers.
• The lookback period does not affect Medicaid eligibility for mainstream managed care.
• The lookback period will apply only to new applications submitted on or after Jan. 1, 2021 and new requests for coverage of LTC services.
• Asset transfers on or after Oct. 1, 2020 will be subject to the penalty period, with the full 30-month lookback realized in April 2023. The penalty period will begin to run as of the date of the application. It will be calculated based on nursing home regional rates. The same asset transfer exemptions applicable to institutional care will be applied to community-based care. A similar undue hardship waiver will be available to applicants for Medicaid for community-based care.
• A state plan amendment and an 1115 waiver amendment reflecting these provisions must be approved by the Centers for Medicare and Medicaid Services (CMS).

DOH is seeking input from stakeholders on these initiatives. We encourage LeadingAge NY members to submit their feedback both to DOH and to the LeadingAge NY staff listed below. Formal comments on the proposed PCS/CDPAS regulations may be submitted here by Sept. 13, 2020.

Contacts: Karen Lipson, klipson@leadingageny.org; Darius Kirstein, dkirstein@leadingageny.org; and Meg Everett, meverett@leadingageny.org. All can be reached at 518-867-8383.