Empire Justice Center strongly supports A.4996, which protects and strengthens the rights of some of the most vulnerable in our communities – elderly or disabled Medicare recipients who are poor enough to also qualify for Medicaid, known as dual eligibles.
Dual eligibles who need long term care services for more than 120 days are now subject to mandatory enrollment in Managed Long Term Care (MLTC) in New York City, on Long Island, and Albany, Erie, Onondaga, Orange, Monroe, Rockland and Westchester Counties. The state’s current plan is to expand the mandatory MLTC enrollment requirement to every other county in New York State by December 2014.
Dual eligibles are an extremely vulnerable population. Compared to the general Medicare population, dual eligibles are three times more likely to be disabled and have higher rates of diabetes, pulmonary disease, stroke and cognitive problems, like Alzheimer’s disease. 
A.4996 seeks to clarify due process protections for this vulnerable population and ensure that dual eligibles mandated into the MLTC program have the same procedural rights to notice and fair hearings as all other Medicaid recipients. Specifically, the bill addresses two disparities in the protections afforded enrollees that have emerged during the implementation of the MLTC program:
- Dual eligibles in the MLTC program are forced to go through all internal plan appeal processes before requesting a fair hearing; and
- Dual eligibles in the MLTC program can only seek continued services pending an appeal in limited circumstances.
PROBLEM 1: Dual eligible Medicaid recipients mandated into MLTC plans cannot seek fair hearings unless they have gone through all internal plan appeal processes first.
For twenty years, New York has never required Medicaid recipients enrolled in mainstream managed care plans to exhaust the internal appeals in their plans before requesting a fair hearing. Only after the most vulnerable seniors and people with disabilities were required to enroll in MLTC plans, has the Department imposed this requirement on dual eligibles. Federal regulations do give states the option to require “exhaustion” of internal plan appeals,  but the Department of Health has unilaterally imposed this requirement in the mandatory MLTC program – with no public notice, no rulemaking with the opportunity for public comment, and most importantly, no authority by the Legislature.
This requirement to exhaust internal plan processes threatens to bar access to appeals for thousands of vulnerable people used to the existing system of requesting a fair hearing. As a result of this new requirement, consumers who request a fair hearing when a plan denies an increase in home care hours could have their hearings dismissed months later because they did not request an internal appeal, even if by that time it is too late to request an internal appeal. This has already begun to happen in New York City.  As the program is expanded across the state, we expect to see more problems.
- SOLUTION: A.4996 would clarify, in statute, that dual eligibles have the same fair hearing rights as other managed care enrollees and are not required to exhaust internal appeals first.
PROBLEM 2: Dual eligibles cannot seek continuation of services from a Managed Long Term Care plan while an appeal is pending except in limited circumstances.
The right to “aid continuing” is one of the most fundamental rights guaranteed by the Due Process clause of the Fourteenth Amendment. In Goldberg v. Kelly,  the United States Supreme Court held that recipients of benefits are entitled to notice and a hearing before their benefits are reduced or terminated. New York State has complied with this Supreme Court ruling for over forty years by requiring local departments of social services to issue a written notice giving the right to request a hearing with “aid continuing” prior to reducing or terminating long term care services. 
In the MLTC program, however, the Department of Health has delegated the authority to authorize all Medicaid long term care services to insurance plans, including the authority to reduce and terminate hours of home care services, with no advance notice and no right for the consumer to receive services while a hearing is pending, if the plan’s service reduction coincides with the end of the plan’s “authorization period” for the services. 
MLTC plans provide long term home care services to individuals whose chronic conditions will rarely improve. Thus, the need for ongoing long term home care services is likely to continue beyond any authorization period the plan specifies. Indeed, the average period of receiving Medicaid personal care services in NYC was found to be 4.75 years in December 2008, with over 40% of personal care recipients receiving personal care services for at least seven years. 
It is hard to overstate the harm caused by denying “aid continuing” for dual eligibles receiving long term care services. An individual whose 24 hour care is reduced to 8 hours per day would be at severe risk of harm if left alone, without care, for 16 hours per day for several months, while a fair hearing is pending to challenge the reduction. Falls and other accidents, malnutrition, pressure sores, and exacerbation of medical conditions caused by an inability to take medication without help could all lead to avoidable hospital stays, institutionalization and even death. It is the prevention of this irreparable harm that is the cornerstone of due process.
- SOLUTION: A.4996 clarifies that MLTC plans may not arbitrarily reduce long term care services at any time without the consumer having the right to seek review with services continuing pending that review.
 Kaiser Family Foundation, Medicare’s Role for Dual Eligible Beneficiaries, 2012.
 42 C.F.R. § 438.402. Authority for this provision currently exists only in Appendix K of the Managed Long Term Care Partial Capitation Contract, available at https://www.health.ny.gov/health_care/medicaid/redesign/docs/mrt90_partial_capitation_contract.pdfhttps://www.health.ny.gov/health_care/medicaid/redesign/docs/mrt90_partial_capitation_contract.pdf.
 See Fair Hearing Decisions #6107211H (issued 8/10/12), at http://www.otda.ny.gov/fair%20hearing%20images/2012-8/Redacted_6107211H.pdf;
# 6128239Y (issued 8/29/2012) at http://www.otda.ny.gov/fair%20hearing%20images/2012-8/Redacted_6128239Y.pdf
# 6205588L (issued 1/30/2013) at http://www.otda.ny.gov/fair%20hearing%20images/2013-1/Redacted_6205588L.pdf
#6437679N (issued 11/13/2013) at http://otda.ny.gov/fair%20hearing%20images/2013-11/Redacted_6437679N.pdf
 397 U.S. 254 (1970)
 18 NYCRR §§ 358-3.6, 505.14(b)(5)(v)(b)
 We believe the Department’s policy limiting the right to aid continuing for ongoing long term care services is inconsistent with fundamental due process as set out by the U.S. Supreme Court in Goldberg and applied to New York’s home care program by the federal court in Mayer v. Wing, 992 F. Supp. 902 (S.D.N.Y. 1996). In Mayer v. Wing, 992 F. Supp. 902 (S.D.N.Y. 1996) the federal court enjoined the local social services district from reducing services prior to issuing notices that justified the reduction based on a change in circumstances or a mistake in a previous service authorization and providing the opportunity for a hearing with aid continuing.
 S. Samis & M. Birnbaum, Medicaid Personal Care in New York City: Service Use and Spending Patterns (United Hospital Fund 2010), supra, at pp. iii-iv, 6-8.
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