Medicaid Home Care Changes - Some to Commence Next Week!
As discussed in a previous edition, the New York State Budget included several changes to the community Medicaid program including a 30 month lookback and transfer penalty for communitybased home care, minimum needs criteria of three activities of daily living, independent assessor and other changes.
A major change is that the Medicaid agency will look back 30 months to October 1, 2020 to determine a penalty period/ineligibility period for Medicaid community-based care. This was pushed back several times, but is currently set to begin on October 1, 2022. This means that all Medicaid community-based applications filed on or after that date will be subject to a lookback. In other words, someone applying on October 1, 2022 will have a 24 month lookback, requiring submission of documentation (for both applicant and spouse, if any) back to October 1, 2020. Community-based applications filed prior to the effective date will not have a lookback. The current transfer exceptions, such as a gift to a spouse or to a disabled child, remain in effect. All of that being said, there is a possibility that the lookback may not be implemented until 2023.
Another change is the addition of criteria for qualifying for home care services. Individuals applying for home care must require assistance with three activities of daily living with physical maneuvering, unless they have a diagnosis of dementia, in which case it is two activities of daily living with supervision. However, this change has been delayed indefinitely.
A change that was delayed, but will now start May 16, 2022, is the Independent Assessor (IA). Up until now, when one is seeking home care hours, there have been two assessments for Medicaid applicants, the Conflict Free Evaluation (CFE) and the assessment by a Managed Long Term Care Agency (MLTC). For those applying after May 16, 2022, the New York Independent Assessor (NYIA) replaces the current process. The NYIA will only conduct the initial assessment process for those with active Medicaid. This means that you cannot set up the assessment while Medicaid is still pending.
NYIA will conduct the initial assessment. In order to develop a Plan of Care (POC), the NYIA will schedule both a Community Health Assessment (CHA) and a Clinical Appointment to be completed within 14 days of contact. Instead of using forms completed by a doctor, the NYIA includes an Independent Practitioner Panel (IPP) to conduct the clinical appointment exam. Once the assessment is complete, the clinician will upload the Practitioner Order (PO) to the UASNY. This assessment is valid for 12 months.
The practitioner will determine whether they believe the “individual is medically stable to receive” home care. If the IPP determines that the individual is not stable, the MLTC may not authorize care. This could potentially be an issue for many home care applicants.
The MLTC remains responsible for authorizing the care. The plan must review the CHA and the PO in the UAS-NY. The POC should be updated at least every twelve months, or more frequently if the condition changes or the enrollee requests.
Beginning May 16, 2022, if the MLTC plan proposes to authorize more than 12 hours of services per day, then the MLTC must refer the case to the NYIA Independent Review Panel (IRP), which is comprised of at least two clinicians, including a lead physician. The IRP will review and make a recommendation to the MLTC plan. The MLTC Plan will be required to submit an IRP request, with all records and documents, through a secure URL using the IRP Request Form.
As indicated above, the LDSS remains responsible for developing the POC and authorizing services, so notice and fair hearing rights have not changed. The LDSS must continue to notice individuals of its decisions to deny or authorize services and defend its decisions, including preparing materials to be presented at a fair hearing (“evidence packet”). These materials will include the CHA, PO, IRP recommendation, if applicable, plan of care, and any notices issued by the LDSS. To arrange for the NYIA to appear as a witness, the LDSS must call the Medicaid Operations Support Unit (OSU) to notify NYIA of the fair hearing request. The OSU serves as an interface between the NYIA and the LDSS.
In addition to all of the above, as of November 8, 2021, MLTC transition rights were diminished. Advocates for those requiring home care will need to stay informed about the changes. It will be more important than ever for the elder law attorney to advocate on behalf of those to whom these new changes apply.
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