PENNSYLVANIA HEALTH LAW PROJECT 415 EAST OHIO ST., SUITE 325 PITTSBURGH, PA TELEPHONE: (412)

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1 PENNSYLVANIA HEALTH LAW PROJECT 415 EAST OHIO ST., SUITE 325 PITTSBURGH, PA TELEPHONE: (412) THE CORN EXCHANGE BUILDING 123 CHESTNUT ST., SUITE 400 PHILADELPHIA, PA (ADMIN PHONE) HELP LINE: July 15, 2015 VIA Theodore Dallas, Secretary Teresa Osborne, Secretary Department of Human Services Department of Aging 625 Forster Street, Third Floor 555 Walnut Street, 5 th Floor Harrisburg PA Harrisburg PA RE: Response of the Consumer Subcommittee to Pennsylvania s Managed Long Term Services and Supports (MLTSS) Discussion Document Dear Secretaries Dallas and Osborne, THE LOUISE BROOKINS BUILDING 118 LOCUST STREET HARRISBURG, PA TELEPHONE: (717) At your invitation, we write to provide our reactions to Governor Wolf s approach for managed long-term services and supports (MLTSS). We are supportive of the goals the Commonwealth outlined for this project. In particular, we support the intention to use the integrated models to improve utilization, beneficiary satisfaction and health outcomes by ensuring the right services are delivered to the right people at the right time and in the right setting. We do, however, have concerns that need to be addressed to ensure that the models developed and implemented meet the stated goals. These comments are a first attempt to summarize those concerns and layout important principles for proceeding. As representatives of the Commonwealth s 2.5 million Medicaid consumers, the Consumer Subcommittee of the Medical Assistance Advisory Committee is the Department of Human Services eyes and ears. We are part of communities whose health and well-being very much depend on Medicaid, and our role is to advise on and monitor program changes and ensure that state Medicaid officials understand their human impact. Given this role, we deeply appreciate your continued commitment to work closely together in reforming the Medicaid program. As the Commonwealth crafts its proposal to U.S. Department of Health and Human Services for permission to waive provisions of the Social Security Act governing Medicaid, we hope you will consider these comments. In advance of that submission 1

2 (and thereafter), we will be available to provide additional information, clarification, and feedback. These are extraordinarily busy times, and we appreciate the commitment and hard work of DHS staff. We thank you for this opportunity to provide comments and for the Administration s commitment to sustaining and strengthening the Medicaid program. Sincerely, Consumer Subcommittee of the MAAC Yvette Long, Chair By Their Counsel: Pennsylvania Health Law Project Laval Miller-Wilson, Esq. David Gates, Esq. Fran Chervenak, Esq. Cc (via ): Leesa Allen, Deputy Secretary, Office of Medical Assistance Programs Jennifer Burnett, Deputy Secretary, Office of Long Term Living Enclosure 2

3 COMMENTS OF PENNSYLVANIA S CONSUMER SUBCOMMITTEE IN RESPONSE TO PENNSYLVANIA S DISCUSSION DOCUMENT ON MANAGED LONG- TERM SERVICES AND SUPPORTS (MLTSS) July 15, 2015 PART ONE PRINCIPLES GUIDING THE DESIGN AND IMPLEMENTATION OF MLTSS Pennsylvania s Discussion Document about Managed Long Term Services and Supports (MLTSS) contains many statements, organized across nine components, about what constitutes success. We provide the following general principles for consideration as Pennsylvania designs and implements MLTSS. These principles and our detailed comments (See Part Two) are based on our on the ground experience, lessons learned from other states pursuing MLTSS, and CMS guidance to states: Outcomes-Based. The central focus of MLTSS should be improving outcomes for beneficiaries both in terms of health care and their quality of life. This will require the development of measurable outcomes, data reporting to determine how well MCOs are meeting those outcomes, sufficient staff at DHS to analyze that data and robust enforcement tools to encourage MLTSS plans to improve outcomes. Choice. Pennsylvanians interacting with MLTSS plans must retain their right to choose how they receive care, where they receive care and from whom they receive care. The principle of choice begins with a truly voluntary, opt in enrollment, but also includes: the right to choose all of one s providers, the right to choose whether and how to participate in care coordination services, the right to decide who will be part of a care coordination team, the right to self direct care (with support necessary to do so effectively), and the right to choose, ultimately, which services to receive and where to receive them. It also includes the right to choose how someone receives their Medicare coverage and maintain Original Medicare coverage, if desired. Beneficiary Centered. The integration effort must be focused, at every level, on the beneficiary. The design and implementation process must include feedback from MLTSS enrollees. Care coordination strategies and assessment tools must place the beneficiary at the center. Monitoring and evaluation measures must start with the impact on the beneficiary experience and must include feedback directly from those individuals. See CMS 2013 Guidance to States Using Waivers for MLTSS (describing Person-Centered Processes) 1

4 Best of Both Worlds. Participants in MLTSS plans that integrate Medicare and Medical Assistance should receive care that is at least as good as the care they would receive if they were not in the integrated model. When integrating Medicare and Medical Assistance, difference should be resolved to provide enrollees with the stronger consumer protection or more generous coverage standard of the two programs. Increasing Access to HCBS. Pennsylvania s MLTSS initiative must be focused on increasing access to home and community based services. Systems that are currently in place should be built upon, not dismantled. See CMS 2013 Guidance to States Using Waivers for MLTSS (describing Enhanced Provision of HCBS) Consumer Protections. When integrating multiple funding streams and services, the importance of consumer protections is heightened. Protections include: maintenance of existing amounts of home and community-based services, appeals and complaint processes, network adequacy, cultural and linguistic competence, physical and programmatic disability access, transition rights, meaningful notice and information about plan benefits and changes, stakeholder input and more. See CMS 2013 Guidance to States Using Waivers for MLTSS (describing Participant Protections) Phased Approach. Where possible, integration should be done in phases, starting with simple steps that build off of the current structures in place, then progressing towards more significant changes as necessary and appropriate. It is not prudent to initially include all 450,000 adults that comprise the MLTSS population. Duals without LTSS should be excluded (see Part Two, II, infra). Pursuing a demonstration program will allow Pennsylvania to determine what works in Pennsylvania and fix what does not before expanding to the broader target population. Reinvestment of Savings. Medicare dollars must not be used to replace Medical Assistance dollars. If savings eventually accrue from the integration efforts, those savings should be reinvested to expand the availability and quality of health and long-term supports and services. 2

5 COMMENTS OF PENNSYLVANIA S CONSUMER SUBCOMMITTEE IN RESPONSE TO PENNSYLVANIA S DISCUSSION DOCUMENT ON MANAGED LONG- TERM SERVICES AND SUPPORTS (MLTSS) July 15, 2015 PART TWO ELEMENTS OF PENNSYLVANIA S MLTSS APPROACH TO BE IMPROVED I. Pennsylvania Needs to Provide More Clarity About Medicare and Medicaid Integration and the Target Population The Commonwealth seeks to better coordinate and integrate Medicare and Medicaid services for its 422,000 dual eligible beneficiaries. There are several ways in which the two programs differ. Payment structures and amounts, coverage standards, and appeals processes are just a few of the broad buckets where the two programs are not completely aligned. Does the Commonwealth intend to fully integrate these programs? Even if the Commonwealth seeks partial integration of Medicare and Medicaid, what specific elements of integration has Pennsylvania identified? General statements e.g., participant protections [will] include a comprehensive grievance and appeals process (at p. 13 of the June 1 st Discussion Document) are not enough, and it is difficult to comment without greater specificity. II. Dual Eligibles Not Getting LTSS Should Be Excluded Dual eligibles who are not getting long term services and supports should not be included in this program. The state pays very little for their care now and historically the state views capitating a payment to the plans as more costly (which is why they have been excluded from HealthChoices for physical health coverage). Only the 104,000 dual eligible adults with long term services needs should be candidates for MLTSS. We also seek clarification about two other MLTSS target populations: Partial Duals: We assume that the target population of dual eligible adults without LTSS needs (318,000) in Pennsylvania does not include partial duals (i.e., those just getting Part B premium help and those only getting help with Medicare co-pays and deductibles and nothing more). That should be clarified. Our recommendation of not including dual eligibles without LTSS needs in MLTSS extends to partial duals as well. Act 150 Enrollees: The Discussion Document does not explain how enrollees in the state-funded Act 150 will be included. If someone qualifies for only the Act 150 program, and is not receiving Medicare or Medicaid coverage, will an MLTSS plan provide only the 1

6 enumerated Act 150 services i.e., personal assistance services such as bathing, dressing cleaning, meal preparation, shopping; supports coordination; and personal emergency response or will these individuals receive more services/coverage? III. Pennsylvania Must Delay Requesting Proposals From MLTSS Plans We are particularly alarmed by Pennsylvania s intent to request proposals from MLTSS plans in October 2015, before an application for a new managed care arrangement is even submitted to CMS. This approach seems antithetical to CMS s May 2013 guidance to states about the key ingredients of well-conceived MLTSS programs specifically adequate planning (Ingredient #1) and stakeholder engagement (Ingredient #2). Many questions need to be answered and more stakeholder discussion and input is necessary. October is too soon. Two months is not enough time to design a program, which may integrate two separate and distinct programs, or complete the necessary work related to integrate appeals processes, coverage determinations and more in a thorough, careful way. Moreover, MLTSS plan bidders need to be aware of these requirements. Pennsylvania must give stakeholders (as well as CMS) time to review and comment on the RFP. Pennsylvania s approach for a state wide RFP will limit our ability to learn from the successes and failures of the initial phase-in. Once MCOs have submitted their bids on this single RFP, the Commonwealth Procurement Act will limit the extent to which the Commonwealth can make significant changes to the design set out in that original RFP. We suggest Pennsylvania issue new RFPs after the first and second phases have been evaluated. IV. Consumer Engagement, An Essential Element of MLTSS, Is Needed We expect consumer engagement: from development and testing notices and other education materials as well as the LTSS assessment tool to drafting terms of MLTSS plan model contracts and the development of rate methodologies. We seek task forces to dialogue about policies and practices. We do not want stakeholder conference calls where news is disseminated. California, Massachusetts and New York each created such task forces to ensure dialogue on key components of MLTSS. Pennsylvania should do the same. CMS expects states like Pennsylvania to have a formal process for the ongoing communication of stakeholders prior to, during and after implementation, and must require their contractors to do the same. (pp.6-8, CMS Guidance to States using 1115 Demonstrations or 1915(b) Waivers for Managed Long Term Services and Supports, May 2013). We propose task forces that include consumers and consumer advocates on: quality assurance; monitoring and oversight; finance and incentives; enrollment; and consumer communication and outreach. These 2

7 task forces should be staffed sufficiently to ensure meaningful development of a mission and concrete objectives. After implementation, CMS also expects states to require MLTSS MCOs to convene accessible local and regional member advisory committee to provide feedback on MLTSS operations. To encourage participation, MLTSS MCOs must provide supports such as transportation, interpreters and personal care assistants; they may also compensate members. (p. 7, CMS 2013 Guidance to States on Waivers for MLTSS). V. Use MLTSS Waivers To Increase Beneficiary Access To HCBS By Expanding Financial Eligibility There is a systemic bias that makes LTSS in Pennsylvania s nursing homes accessible to far more individuals than are LTSS in Pennsylvanians own homes. This is the case even though most Pennsylvanians would prefer to receive care in their own homes and even though care in a Pennsylvanian s own home is significantly less costly than is care in a Pennsylvania nursing home. This systemic bias can and must be remedied to eliminate the systemic inequity. Four states have used MLTSS to expand financial eligibility for HCBS to individuals who would financially qualify for nursing facility services through spend down but cannot spend down to waiver (NJ, NY, RI, VT). Since MLTSS will cover nursing facility services, equalizing financial eligibility between HCBS and nursing facility services will enable MCOs to keep enrollees in the community who would otherwise only be financially eligible for nursing facility services, at a much higher cost. We urge Pennsylvania to use this MLTSS opportunity to seek CMS approval to amend its HCBS Waiver Applications such that: 1. All income above the current Medicaid HCBS waiver limit be disregarded in the eligibility determination process. 2. All income above the current Medicaid HCBS waiver limit be considered in the post-eligibility determination of the patient pay liability. 3. All income up to the current Medicaid HCBS waiver limit be considered a monthly maintenance needs allowance for the waiver participant. COMMENTS ON PROGRAM DESIGN I. Consider Other Models Than Paying Insurance Plans for MLTSS State officials appear keen to advance a capitation model that would pay insurance plans a risk adjusted per-member-per month capitated payment in an amount to be determined by the state and federal governments. But that approach may not work throughout Pennsylvania, especially in less populated areas. We urge the state to consider requesting authority to demonstrate a separate capitated 3

8 managed fee-for-service model in less populated areas and to consider the same approach for an urban area (preferably at the same time as a capitated insurance plan demonstration). We believe multiple models are needed to evaluate the best approaches for improving care and coordination to ensure that MLTSS will be effective in Pennsylvania. We remind readers that the first recommendation of Pennsylvania Long Term Care Commission Develop supports demonstrations: [Pennsylvania] should [d]evelop and implement one or more demonstration programs (demonstration) in designated geographic areas to pilot service delivery and financing models that provide coordinated, integrated, person-centered physical health, mental health, substance abuse, and LTSS services. Proposed Strategy 1.1: Develop and Implement a LTSS Coordinated Integrated Demonstration Program, Pennsylvania Long Term Care Commission 2014 Final Report at p. 9 (emphasis added). Pennsylvania s other capitated MLTSS models i.e., LIFE appear to improve care and coordination effectively, and achieve savings for the state and federal governments. Pennsylvania s Discussion Document does not detail the relationship MLTSS plans and the LIFE model. We seek more clarification. How will MLTSS plans use these programs? Will participants in LIFE programs be excluded? If LIFE will remain a separate program, the independent enrollment broker should have the ability not just to provide counseling about all coverage options but to actually process LIFE enrollments. Otherwise, we are concerned the ability of LIFE programs to attract enrollees will be unduly restricted. We also seek clarification about whether Pennsylvania s MLTSS approach forecloses support for organizations interested in becoming Medicaid Accountable Care Organizations (ACOs), where provider-run organizations are collectively responsible for the care of an enrolled population, and may share in any savings associated with improvements in the quality and efficiency of care. There are eight ACOs operating in Eastern Pennsylvania serving at least 5,000 Medicaid covered persons. Would these persons be excluded from MLTSS? II. Enrollment Should Be Voluntary Not Mandatory We have not seen evidence that mandatory enrollment is either necessary or desirable for consumers. It is essential that the 450,000 adults that comprise the MLTSS target population have the opportunity to choose to participate (and, as noted above, we recommend that only the 104,000 duals using LTSS should be targeted). They should not be placed into new programs just because they are poor and expensive to serve. 4

9 The MLTSS population should retain their ability to choose what care to receive, how to receive that care, where to receive that care and from whom to receive that care. That choice must begin with the decision of whether or not to enroll in MLTSS at all. We propose a voluntary MLTSS model that would allow beneficiaries to opt in. The opt in principle should apply to both Medicaid and Medicare sides of the model. Voluntary enrollment models have been successful here in Pennsylvania (e.g., LIFE). Voluntary, opt in enrollment: Honors the autonomy and independence of the individual. Affirms an important principle of the Medicare program the right to choice of provider and would retain for dual eligibles with LTSS needs the same right to choose that other, non low income Medicare beneficiaries have. Allows individuals in the target population with complex medical conditions to retain access to providers that may not be participants in the MLTSS model. Serves as an important quality check on MLTSS plans. Having to offer programs and services that attract enrollees and that enrollees can leave anytime ensures that MLTSS plans offer quality, patientcentered programs. Ensures that enrollees are willing participants in the care coordination activities undertaken by MLTSS. Does not require waivers of federal laws or regulations. We encourage Pennsylvania to consider a phased in approach. While we appreciate Pennsylvania s intent to connect the target population to high quality programs that will integrate and coordinate their care, at this time the ability to deliver that benefit is speculative. If, over time, integrating and coordinating care achieves the desired goals and outcomes, it may be appropriate to return to the question of enrollment. Until then, the best way to ensure MLTSS insurance plans grow into effective programs is to require them to earn enrollments through an opt in system. 1 III. No Lock-Ins There should be no lock in periods on either the Medicaid or Medicare side. Whether utilizing an opt out or opt in model, beneficiaries should be able to leave their plan(s) any time and have the right to continuous open enrollment. Enrollment rights and periods should mirror Pennsylvania s Medicaid program (HealthChoices) where beneficiaries have the right to enroll in and disenroll 1 If Pennsylvania pursues mandatory enrollment, extensive consumer protections will be necessary to ensure continuity of care. One significant protection we recommend is an auto assignment algorithm to MLTSS plans that considers (prefers) the consumer s existing providers to minimize disruption. 5

10 from plans any time during the year. The same applies for the Medicare side where dual eligibles presently have the right to enroll in and disenroll from Medicare Advantage plans any time during the year. The MLTSS target population is more likely to have complex health needs than their peers enrolled in Medicare only or Medicaid only. For that reason it is important to allow for flexibility in plan choice. At present, dually eligible Pennsylvanians can see any provider who accepts Medicare and Medicaid, and many choose to use Medicare providers who do not accept Medicaid. The shift into insurance-based managed care networks will limit this broad provider access. Allowing beneficiaries to switch plans will help them access different or expanded provider networks as their care needs change. IV. Other Design Considerations of the Enrollment Process Pennsylvania should have a plan comparison tool, similar to Medicare s PlanFinder, which MLTSS beneficiaries could use to input their doctors, services and prescriptions and determine which, if any, insurance carrier who provides the Medicare and LTSS products best suits their particular needs. Enrollment notices should be developed by the state with stakeholder input. Pennsylvania should host beneficiary test groups to elicit suggestions and ensure the notices are understandable. All materials must be made available in alternative formats, designed for a low-vision reader, and be appropriate for low-literacy audience. Pennsylvania should incorporate beneficiary comments and suggestions, and should ensure that all materials are translated into several languages. State drafting will guard against notices being produced by entities with a financial stake in enrollment. Moreover, it will prevent enrollment notices from varying between plans. In addition, robust counseling and support systems are needed so individuals understand their options. This system needs to ensure that sufficient time is given to disseminate the information and for consumers to understand the changes and make decisions. In addition, education and enrollment materials must be provided in formats that are accessible. For those who are limited English proficient, materials must be translated. For those with visual and other disabilities, accessible formats include e format, large print, Braille and cassette. Without such access, those with impairments or limited English proficiency will not have the information needed to make informed decisions and fully participate in these programs. V. MCO Financial Incentives Must Be Designed to Support MLTSS Policy Objectives To support the goals of ensuring the quality and independence of the lives of seniors and people with disabilities participating in MLTSS, any financial incentive for MCOs to reduce historical levels of home and community-based waiver services to MLTSS participants must be eliminated. MCO profit should be generated by maximizing the use of home and community-based services, and through better 6

11 coordination of acute care medical services with long term services and supports, not by reducing existing levels of home and community based services through the application of the customary medical necessity standard to the development of care plans. To protect the quality of the lives of MLTSS participants, the RFP document should contain a maintenance of effort provision that sets aside in a Community Reinvestment Fund any funds or profit generated by any reduction in the statewide average number of units of home and community-based services provided to MLTSS participants compared to the prior three year average for each such service provided to waiver participants. VI. MLTSS Plans Should Not Administer Assessments That Determine Eligibility For LTSS MLTSS plans should not administer assessments for LTSS. It is an obvious conflict of interest when MLTSS plans will be providing (and paying for) the LTSS services themselves or through contractors. Assessments should be administered by organizations and persons knowledgeable about LTSS, and specifically about the scope and availability of HCBS services and supports that are or could be made available (e.g., Area Agencies on Aging (AAAs) or Centers for Independent Living (CILs)). Here too, we support conflict of interest standards, including a requirement that a person developing an assessment should not be a service provider for the enrollees, a person finically responsible for the enrollee, or a person empowered to make financial or healthrelated decisions for the individual. VII. Service Planning Based On Need Only Service planning should be driven by determinations of individual needs not costs. Even people with high cost support needs should have the ability to remain in the community if they choose- even where forcing them into a nursing facility might cost less. It must be based on the principles of person-centered planning set out in the January 2014 federal regulation and include all aspects of an individual s life relevant to whether the beneficiary will be able to live in a house, apartment or other community-based setting. Revisions to service plans should be done when there is significant change in an individual s conditions or circumstances, at the individual s request or at least every 12 months. VIII. Preserve Beneficiary Autonomy To Select In Home Services and Supports It is important that unique features of Pennsylvania s LTSS programs be retained in MLTSS because they meet needs essential to autonomy and independent living. For example: o One of the central, prized elements of Pennsylvania s HCBS program is the individual consumer s ability to hire, fire and direct the activities of his or her provider. Participants in MLTSS plans must be allowed to continue to self direct their care. 7

12 o LTSS providers are not skilled medical providers, although some may provide limited paramedical services under the direction of a skilled professional. Instead, LTSS providers may often be helping with activities of daily living like grocery shopping, meal preparation, cleaning, assistance with ambulation, etc. where additional medical involvement or supervision is not necessary and would in fact undermine independence. These non medical aspects of LTSS must be maintained. o LTSS consumers have the option of hiring whomever they want, including a parent or other relative, or a friend. Consumers must not be required to rely on Agency staff for their services. Given the wide variety of circumstances and range of relationships between beneficiary and provider and in order to preserve privacy and autonomy, LTSS consumers should be allowed to keep their care provider as separate from (or as integrated in) the rest of their care team as they prefer. They should be allowed to direct delivery of independent living services without medical supervision or control. They should be allowed to determine the extent to which their LTSS provider is privy to or excluded from private medical relationships. We urge Pennsylvania to create a central repository of employment related information regarding consumer-employed aides so that pay checks are not interrupted when consumers who self direct change MLTSS plans. The transfer of that information between fiscal management services has proven disastrous in the past, namely with Christian Financial Services and then the start of PPL. Pennsylvania should include supports brokers as a covered service to assist people seeking to leave nursing facilities or self directing their own services. Many people who want to self-direct their services have never managed staff before, never written ads to recruit support workers, never interviewed prospective employees, never submitted payroll. Supports brokers can provide time-limited training and assistance to those consumers who wish to self-direct but lack the necessary experience to do so successfully. Also, many people who want to selfdirect need some assistance identifying options for unpaid supports and blending those with their paid supports. In sum, the integration of LTSS must be done carefully, building on what works and preserving unique elements of current programs. IX. Carve Out Home Modifications from MLTSS If Pennsylvania decides to go forward with its proposal to create a system of capitated payments to home modification brokers, it will need to carve out home modifications from the MLTSS proposal. It makes little sense to establish a separate managed care model for home mods only to disband it and give it to the MCOs a year later. In any event, special consideration will need to be made to ensure 8

13 coordination of home mods that are essential for people to remain in the community with other long term services and supports. X. Nursing Facility Avoidance and Transition There are genuine opportunities for cost savings without compromising consumer health and even improving quality of life. Those opportunities arise when consumers are diverted from costly nursing facility stays, especially following a hospital discharge, or are able to access HCBS quickly so they can leave a nursing facility before their housing and family supports are no longer available. The likelihood of an individual returning to the community from a nursing facility diminishes the longer they are in that facility. MLTSS MCOs should be required to establish rapid response teams, working in partnership with Area Agencies on Aging (AAAs), Centers for Independent Living (CILs) and Home and Community Bases Service (HCBS) providers, to assess, authorize and put in place HCBS quickly for persons about to be discharged from hospitals or recently admitted to nursing facilities. XI. Behavioral Health Concerns Improving the availability and coordination of mental health services is critical for LTSS beneficiaries in need of such services. We hear repeatedly from advocates that mental health services are the weakest link in the care system for dual eligibles in Pennsylvania. It is critically important that dual eligibles with LTSS needs who have succeeded in establishing a stable relationship with a mental health provider to be able to continue care with that provider. In addition, because a therapeutic relationship is so important to effective treatment in mental health, dual eligibles with mental health needs should have the widest choice of clinicians, with the MLTSS model working to accommodate out ofnetwork providers when preferred by the beneficiary. We also note the importance of integrating behavioral health and substance abuse services for the many individuals who need access to both. XII. Transition Rights Policies must be in place to ease transitions into and out of MLTSS plans. Transition rights are an important part of any program, but become particularly important if there is any kind of mandatory enrollment or lock-in requirement. Service Transition. Pennsylvania s MLTSS approach must have a method for assuring continued access to current services and current providers. For persons already receiving HCBS, rather than start from scratch as if the participant never had services before, MLTSS MCOs should be required to work with consumers, family and providers to develop a service transition plan with adequate time to ensure a smooth transition. In situations where transition would compromise health or independence as a result in loss of key providers (including direct care staff in a consumer directed model) 9

14 consideration should be given to allowing existing providers/staff to continue serving that individual as non-participating providers. Transition From EPSDT/School Services To Adult Services: DHS Resource Facilitation Team (RFT) should continue to review youth receiving home health services prior to aging out of EPSDT services but the MCOs should be required to work with the RFT, the youth, family and current service providers to develop a transition plan. That transition plan should look at potential harmful effects of loss of existing provider agencies or consumerdirected staff and allow ongoing payment of those providers as out-ofnetwork providers where needed to avoid breaks in continuity of care. Provider Transition. Pennsylvania s MLTSS approach must also be able to provide access to existing out of-network providers during a transition period. During the transition period, the program should be required to reach out to an enrollee s provider to encourage the provider to join the network. If outreach efforts are unsuccessful, a process should exist for the enrollee to secure approval to continue seeing that provider. XIII. Appeal and Grievance Rights MLTSS enrollees must have the ability to appeal decisions made by MLTSS plans and to file complaints about problems encountered in dealing with the program. There are several layers of appeal rights including: Right to appeal eligibility for enrollment in the program Right to appeal an assignment to a provider or care team Right to appeal a decision regarding provision of a particular service Right to appeal elements or non elements of a care plan Right to request a second opinion or evaluation of eligibility for a service Right to file a grievance/complaint about MLTSS plan and/or its providers With regard to service denials by an MLTSS plan, at a minimum the appeal system should include several key elements: Clear notices for beneficiaries to follow on how to appeal denials, regardless of whether the particular services are covered by Medicare or Medicaid. It is critical that the beneficiary have no wrong door to exercise appeal rights. Notices should include the effective date of the action, explicit reason for the action, and citations to specific regulations Aid paid pending appeal. By allowing beneficiaries to continue access to long-term care, behavioral health services or other health care services for chronic conditions during an appeal, Pennsylvania will ensure that this lowincome population, whose members cannot pay for their care out-of-pocket, 10

15 will not be forced to forgo care or be left with financial risk without coverage for necessary long-term care. An expedited review process. Federal Medicaid regulations allow for expedited appeals if delay could jeopardize.. the ability to attain, maintain, or regain maximum function. 42 CFR (a). Appeal rights triggered immediately when a service or benefit is denied. Currently, Medicare Part D beneficiaries denied medication at the pharmacy must take multiple steps to get a coverage determination from the plan in order to start the appeal process, leading to potentially harmful delays. We support the comments of the Pennsylvania Health Law Project (submitted separately) that funding be set aside to provide seniors and people with disabilities participating in MLTSS legal advice and representation with appeals when MLTSS plans deny coverage and services. This function should not be given to MCOs as they have an inherent conflict of interest. Ombudsman programs are useful for informal resolutions but access to legal advocates is essential for situations where disputes cannot be resolved through informal means. COMMENTS ON PLANNING PHASE I. Selective Contracting Pennsylvania should limit the number of MLTSS insurers and the number of plan offerings each insurer is permitted to sell. Ensuing beneficiaries have choice of plans is important; however, equally important is that the choice is meaningful. In our experience working with beneficiaries in the context of Medicare Advantage and Part D, beneficiaries presented with an excessive menu of choices often end up enrolling into plans that do not include their needed services and providers. Pennsylvania must make clear that duplicative plans from the insurer will not be certified. Pennsylvania should require consistent naming of plans and classify these MLTSS plans as well as Medicare Advantage plans into easy to compare types. Pennsylvania should clarify whether insurers chosen to offer MLTSS plans can still offer other Medicare Advantage plans. II. Questions for Potential MLTSS MCOs We want all insurers submitting proposals to be an MLTSS plan to address questions about its history, its ties to the community to be served, and its specific plans for integration. We have set out below some areas of inquiry: a. History with Medicaid: How long has the contractor had experience, if any, as a Medical Assistance contractor? 11

16 What specific experience has the contractor had, if any, in delivering services to seniors and persons with disabilities? What experience has the contractor had in the delivery of long term services and supports, including specifically in-home and institutional care services? In the delivery of mental health services? What specific experiences has the contractor had with personcentered care? Self directed care? What is the specific experience of the contractor with care coordination? What methods of care coordination has the contractor used? What assessment tools has the contractor used? If the contractor is an organization that also operates outside Pennsylvania, what are the extent and scope of its Medicaid contracts with other states? Has it been subject to any adverse actions by state authorities? b. History with Medicare: Does the contractor currently operate Medicare Prescription Drug Plans or Medicare Advantage plans; what type of Medicare Advantage plans (e.g., Dual Eligible SNPs, Institutional SNPs)? How many enrollees? How many dually eligible enrollees? Has any plan operated by the contractor been subject to a suspension of enrollment by CMS and, if so, what was the nature of the violation causing the suspension? Have any plans operated by the plan sponsor been subject to Corrective Action Plans by CMS and, if so, what was the nature of the problem? If the contractor operates integrated or partially integrated D SNPS in other states, the contractor should provide its contracts with those states and the Models of Care it has used. c. History with the Service Area: What are the contractor s experiences with and ties to the counties in the service area? How many seniors and persons with disabilities served? d. History with Special Populations: What is the contractor s experience in serving LEP populations? If the contractor already operates in the county, how many of its providers speak non English languages? Which languages? What is the contractor s experience in serving people with disabilities? How many of its providers have offices accessible to persons with disabilities? 12

17 What is the contractor s experience serving seniors? How many of its providers are geriatricians? What experience to they have providing end of life care? e. Plans for Integration or Care Coordination: What is the contractor s proposed model for integration, if that is what Pennsylvania pursues? What are the contractor s plans for records sharing among providers? What systems, electronic or otherwise, are planned? Will the contractor be paying for upgrades required to connect providers? Are systems already in place? If not, where are the gaps and what is the timeline for filling them? What procedures will be used to ensure that beneficiary choices to limit record sharing will be honored? Are providers in the network ready and willing to participate in the care coordination model the plan intends to use? Will providers be compensated for time spent meeting with a care team, etc.? How does the contractor intend to integrate mental health services? What are the contractor s specific plans to integrate CILs, FQHCs? What specific timelines does the contractor propose for integration of in-home services and supports, and mental health? What specific mechanisms will the contractor use to coordinate care? What assessment tool will the contractor use to evaluate medical and social needs? Will the contractor integrate transportation? How? What non medical supports will the contractor include in its integration model? If Medicare coverage remains separate, how will the MLTSS plan coordinate care for their members, including those who chose to remain in Original Medicare? COMMENTS ON IMPLEMENTATION I. Readiness Review Should Use a Methodology And Target Measures That Have Been Developed In A Transparent Stakeholder Process Pennsylvania must conduct a readiness review using a methodology and target measures that have been developed in a transparent stakeholder process before plans are permitted to go live. 13

18 II. Pennsylvania Must Allow Access To Out-Of-Network Providers At No Cost The move from fee-for-service to insurance-based managed care may compromise care by disrupting provider relationships and destabilizing the current safety net. There is much talk that the current system doesn t work and indeed Pennsylvania s hospital re-admission rates and hospital infection rates are problematic. But in some ways the system does work: members of the MLTSS target population have access to some of the finest medical centers in the Commonwealth. Reduced access to these critical providers is a real threat if managed care plans limit their networks. At the least, we urge a transition period, of at least a year, where consumers can maintain access to their current providers, even if the provider does not participate in MLTSS. In addition, Pennsylvania must specify how MLTSS plans will be required to monitor their network capacity. We believe providers list must be updated frequently and be made available on MLTSS plans websites, by mail, from the enrollment broker, and in other ways. Pennsylvania must also specify that MLTSS plans frequently determine if providers are accepting new patients or have long wait times, and make this information available. MLTSS plans must also make clear who a beneficiary can contact if they have network adequacy problems. Pennsylvania not only must establish adequate standards to ensure access to providers but also verify that plans have an internal capacity for monitoring network adequacy. COMMENTS ON OVERSIGHT I. Pennsylvania Needs Sufficient Staff To Conduct Meaningful Monitoring And Oversight Monitoring and oversight are critical to inform program modifications and corrective actions; identify and address health disparities; and educate enrollees so that potential barriers to accessing needed care can be avoided through careful and informed choice of plans. Both the federal and state government should have authority to issue corrective action plans, impose enrollment and marketing sanctions, levy monetary penalties and if necessary terminate plan contacts. Pennsylvania will also need significant staff resources to develop data measures related to both health-related and quality of life outcomes, institute procedures for collecting the data, and analyze and summarize the results for the public. Pennsylvania must not rely solely on familiar clinical measures e.g., avoidable hospitalizations, emergency room use and drug interactions. 14

19 COMMENTS ON QUALITY I. Payment Rates Should Incentivize Best Practices It is vital that MLTSS plan reimbursements and capitation rates, including bonuses and incentives, agreed upon by CMS and Pennsylvania, incentivize community based care over institutionalized and nursing home care. II. Pennsylvania Should Develop Performance Measures Of MLTSS Plans That Account For The Specifics Of The Target Population Quality measures and performance ratings applied to Medicaid managed care plans for younger and non-disabled adults are not appropriate markers for lowincome seniors and adults with disabilities. MLTSS plan performance measures might include preventing institutionalization, preventing falls and other accidents, maintaining and improving the ability to perform activities of daily living (ADLs), consumer satisfaction (as determined by consumer interviews done by independent entities), amount of authorized HCBS units that are actually delivered, percentage of individuals who wish to self direct services that are successful in doing so and, progress towards outcomes set out in individual support plans. Pennsylvania should consult with organizations that have developed quality measures specifically for this population when developing its performance measures. For example, it should consider adoption of the National Institute on Disability and Rehabilitation Research (NIDRR) funded Assessment of Health Plans and Providers by People with Activity Limitations instrument based on the Medicaid Consumer Assessment of Healthcare Providers and Systems (CAHPS) instrument but with phrasing and content areas more appropriate to adults with activities limitations or a similar instrument. Pennsylvania (not MLTSS plans) should contract with independent entities like CILs and AAAs to do in-person consumer satisfaction surveys, as OLTL had planned to do before MLTSS. Data collection should also examine whether there are disparities in access and outcomes based upon disability, gender, race/ethnicity or other factors. III. Monitor Effect Of MCO Payment Rates On Access & Quality DHS should oversee and evaluate whether the payment rates are supporting the goals and objectives of their MLTSS programs and these essential elements and whether payment structures encourage the delivery of community-based care. States must also evaluate whether payment rates and structures are adequate to achieve participant access to quality providers for covered services. (2013 Guidance from CMS on MLTSS, p.9) IV. MLTSS Plans Should Be Required To Develop Electronic Medical Records So That All Network Providers Have Access To Records For Every Member This will require funding to develop the infrastructure. Without this capacity, full care coordination will not be possible. 15

20 CONCLUSION The Consumers and their counsel appreciate the Commonwealth s intent to accept federal funding to expand coverage and this opportunity to express our concerns. We will provide additional information upon request. Please direct questions to David Gates (DGates@phlp.org) and Laval Miller-Wilson (LMillerWilson@phlp.org). 16