Business Acumen Webinar: Conflict of Interest in New Medicaid Managed Care Regulation
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1 Business Acumen Webinar: Conflict of Interest in New Medicaid Managed Care Regulation Fay Gordon Project Manager, National Center on Law and Elder Rights Friday, October 7, 2016
2 Justice in Aging is a national organization that uses the power of law to fight senior poverty by securing access to affordable health care, economic security, and the courts for older adults with limited resources. Since 1972 we ve focused our efforts primarily on populations that have traditionally lacked legal protection such as women, people of color, LGBT individuals, and people with limited English proficiency. 2
3 Today Interest in Conflict of Interest (COI) Brief overview: Medicaid Managed Care Regulation Detail: Beneficiary Support System Exploration: Potential impact for CBOs Questions and Discussion 3
4 Intro: Why interest in COI? 4
5 Growing interest in COI requirements Focus on integration: Community-based organizations + Health care systems 5
6 Growing interest in COI requirements Community-based organization s role in delivery system: Gatekeeper + Service Provider 6
7 Conflict of Interest in OAA Currently, lots of discussion about conflict of interest, but Older American s Act has long included protections to limit conflict in Area Agency on Aging services 42 U.S.C. 3026(a)(8) 7
8 SOURCE: 8
9 COI Requirements in OAA: Under the Older Americans Act: AAAs cannot act as promoters for agency. AAAs must provide individual with statement specifying individual choice of service. 42 U.S.C. 3026(a)(8). 9
10 Medicaid Managed Care Reg & Beneficiary Support System 10
11 Final Medicaid Managed Care Rule Published: May 6, Federal Register Two sections: Medicaid Managed Care and CHIP requirements 11
12 BASICS CMS Goals: Strengthen beneficiary experience Advance delivery system reform Strength program integrity by improving accountability and transparency Align Medicaid and CHIP requirements with other health programs
13 Managed Care Regulation Basics Phased implementation over 3 years with new provisions starting with contracts on or after July 1, 2017 Key Regulatory citation changes: Network adequacy: (b)(2) Quality: Beneficiary Support System: (d) Stakeholder Engagement: Language Access: Crossover claims: Enrollment: , Appeals: , Care Coordination: (a)(1); ( )(b)(2) Utilization controls: (a)(4)(ii)(B) Medical necessity: (a)(5) MLR: 438.8(e)(3) Rebalancing 438.8(e)(3)
14 Beneficiary Support System (438.71) States develop a Beneficiary Support System (BSS). BSS provides support to beneficiaries before and after enrollment.
15 Beneficiary Support System (438.71) At a minimum, BSS provides: Choice counseling for all beneficiaries Assistance understanding managed care, including LTSS Outreach to beneficiaries
16 Beneficiary Support System, LTSS (438.71) For individuals receiving LTSS, the BSS provides: Access point for complaints Education on grievance and appeals Assistance navigating grievance and appeals process Review and oversight of LTSS program data to identify systemic problems
17 Beneficiary Support System- Choice Counseling Direct language on the choice counseling provision: (c)(2): If an individual or entity provides choice counseling on the State s behalf under a memorandum of agreement or contract, it is considered an enrollment broker as defined in (a) and must meet the independence and freedom from conflict of interest standards in (b)(1) and (2). 17
18 Exploration: Potential Impact on CBOs 18
19 Beneficiary Support System: Opportunity CMS does not expect states to develop entirely new consumer network for BSS. CMS expects states will draw on existing organizations and resources. Potential for many existing CBOs to be a part of BSS. 19
20 Implications of Choice Counseling Requirement BSS choice counselors: considered an enrollment broker must meet the independence and freedom from conflict of interest standards. 20
21 Why the concern about COI in choice counseling? Potential for steering: CBO provides advice and referral CBO has a financial relationship in that entity CBO could financially benefit from referral Potential for steering; potential for COI 21
22 Potential further conflict with MCO CBOs are contracting with MCOs. Distinction between advice, care plans, referrals and service providers can blur. 22
23 Enrollment brokers must be free from conflict According to regulation: All BSS choice counseling entities are considered enrollment brokers All enrollment brokers must be free from conflict of interest Therefore, all BSS choice counseling entities must be free from conflict of interest 23
24 Enrollment broker or choice counselor? Under BSS, choice counseling considered enrollment broker In reg comments, CMS rejects request to separate choice counseling from enrollment broker 24
25 Potential Impact on CBOs DISCLAIMER: Discussion based on interpretation from reading regulation and preamble. CMS has not issued any sub-regulatory guidance or further explanation on the Beneficiary Support System at this time. 25
26 Potential Impact 1: No Impact Very likely it will not impact CBOs. CBOs are committed to providing conflict-free, person-centered care. 26
27 Potential Impact 2: CBOs make a choice BSS appears to present CBOs with a choice: 1) Continue to provide choice counseling services and maintain contracts with MCOs or 2) Participate in BSS as choice counselor and eliminate financial relationship with MCOs 27
28 Why either-or? MCO contract or BSS? Regulations clarify that choice counseling entities cannot have a financial relationship with MCOs. 42 C.F.R
29 Limitation on CBOs in BSS CBO cannot provide choice counseling in BSS when CBO has or has been: A direct or indirect financial interest in any entity or health care provider Excluded from participation Debarred by any Federal Agency Past or currently subject to civil monetary penalties 29
30 Are MCOs entities or health providers? Unclear. Regulation does not define what organizations fall under entity or health provider. Preamble does interpret MCOs as falling under that umbrella. 80 Fed. Reg. 88 at (May 6, 2016). 30
31 Pulling it together Medicaid managed care reg requires states to create a Beneficiary Support System. BSS must provide choice counseling to all MCO enrollees. Choice counseling entities considered enrollment brokers. Enrollment brokers held to conflict of interest standards. In addition, CBOs cannot provide choice counseling services if they have a financial relationship in a health care entity. MCOs are most likely considered health care entities. 31
32 Conclusion CBOs may face a choice: to contract or not to contract with MCOs, to participate in BSS, not to participate. What s needed: More information from CMS, additional subregulatory guidance. 32
33 Additional Resources Conflict Free Case Management Paper (2014): Management-Issue-Brief.pdf. CMS presentation on Conflict of Interest rules: df. Medicaid managed care reg: Fay Gordon 33
34 Conflict of Interest Policies In Medicaid Home- and Community-Based Services ACL Business Acumen Learning Collaborative Webinar October 7, 2016 Julie Hamos, Principal, Health Management Associates on behalf of the National Association of Area Agencies on Aging HealthManagement.com HMA
35 Goals of Webinar Review background of new federal conflict of interest (COI) rules Review Medicaid services provided by aging and disability networks Review federal guidance on COI rules Propose strategies for mitigating conflicts of interest HMA 2
36 Background Delivery of Medicaid-funded long-term supports and services (LTSS) has shifted from nursing home care to Home- and Community- Based Services (HCBS) Most states have used HCBS waivers to provide services to older and disabled persons at home to prevent institutionalization Aging and disability networks provide the types of services funded by Medicaid HCBS HMA 3
37 Activities Associated with Information & referral Medicaid HCBS Medicaid eligibility determination/redetermination Clinical eligibility determination/redetermination (aka level of care determination) Needs assessment/re-assessment Service planning (aka care plan ) Service coordination Service authorization Service delivery Quality oversight/quality monitoring HMA 4
38 Concerns About Potential Conflicts Steering individuals to own organization Pressure to retain client instead of promoting choice Incentives for over- or under-utilization of services Undue influence over goals of care Lack of consumer choice in selecting services or providers Focus on convenience of service provider HMA 5
39 Conflict of Interest Defined A real or seeming incompatibility between one s private interests and one s public or fiduciary duties. Black s Law Dictionary, Eighth Ed., Thomson West, St Paul, MN (2004) Conflict may occur when CBO serves as both the agency assessing the need for services and delivering the services HMA 6
40 Key Components of Conflict-Free System Eligibility decisions separated from direct service provision Not related by blood or marriage; not financially responsible for person Clear paths and tracking for grievances and appeals State engaged in oversight Engage stakeholders and track individual experience HMA 7
41 When Conflict of Interest is Present, State Needs To: Demonstrate to CMS that the entity is the only willing and qualified provider Provide full disclosure to participants and assurances that participants may exercise right of free choice in providers Describe individual dispute resolution process Assure that entities separate case management and service provision (different staff) Assure that state has given express approval Provide direct oversight and periodic evaluation of safeguards HMA 8
42 Federal Guidance on Conflict of Interest in HCBS States offer HCBS in different programs, waivers and state plan amendments Balancing Incentive Program 1915(c) Waivers 1915(i) State Plan Option 1915(k) Community First Choice State Plan Option 1115 Waivers Programs have different COI rules HMA 9
43 Balancing Incentive Program States offered enhanced federal match if they agreed to rebalance LTSS toward HCBS and away from institutionalization States had to make structural reforms including conflict free case management (CFCM) BIP guidance included 9 design elements on CRCM Time limited program; 18 states HMA 10
44 1915(c) Waivers Most frequently used; in most states HCBS services offered to various populations with LTSS needs Individuals must meet state-defined institutional level of care to be eligible States can limit HCBS to specific geographic areas COI provisions apply, but will take effect only when states apply for waiver extension or for new 1915(c) waiver HMA 11
45 1915(i) State Plan Option Allows states to extend same benefits as 1915(c) but for those who do not meet institutional level of care As state plan, cannot limit benefits by geographical area As of 12/2015, in 17 states COI guidance is most strict: requires that needs assessment and service planning must be separated from direct service HMA 12
46 1915(k) Community First Choice State Plan Option Provides 6% increase in federal match to offer personal care services to those who meet institutional level of care As state plan, cannot limit benefits by geographical area As of 9/2016, in 5 states Has COI standards for persons and entities conducting assessment of functional need and person-centered service plan HMA 13
47 1115 Waivers Experimental, pilot or demonstration projects Give states flexibility to design and improve their programs to evaluate innovative policy approaches 1115 waivers used by some states to provide HCBS CMS has indicated that HCBS conflict of interest rules will apply HMA 14
48 Conflict of Interest and Managed Care Organizations (MCOs) MCOs can provide case management and perform functional assessments BUT: If MCOs do operate direct LTSS services and provide case management, state must demonstrate to CMS that MCO is only willing and qualified case manager MCOs cannot determine eligibility for programs; if MCO performs assessments for level of care (LOC), state must perform representative sampling to ensure accuracy of LOC Appeals process must be in place to address decreases in care with state HMA 15
49 CBO Strategies for Mitigating Conflict STEP 1: Assess your state Medicaid Program Under which state plan amendments or waivers does your CBO provide HCBS? What is timetable for HCBS to be renewed? Are new HCBS waivers, SPAs or 1115 waivers being considered? Are HCBS being provided in fee for service or in managed care? HMA 16
50 CBO Strategies for Mitigating Conflict, cont d STEP 2: Assess your own CBO Are you a Medicaid provider? Which HCBS services do you provide, or would like to provide? If there is potential conflict now, which services are most important? Are you the only willing and qualified provider in your area? HMA 17
51 CBO Strategies for Mitigating Conflict, cont d STEP 3: Develop strategies to mitigate any potential conflicts Develop firewalls between organizations Develop firewalls within your CBO distinct budgets, staffing and management Contract out some services you now provide HMA 18
52 CBO Strategies for Mitigating Conflict, cont d STEP 4: Borrow models from other states Ohio: 3-way contract between CMS, Ohio and MCOs for dual eligible; AAA conducts LOC; MCO must contract with AAA to perform service coordination Pennsylvania: AAAs are allowed to perform LOC; MCOs contract with AAAs for service coordination HMA 19
53 CBO Strategies for Mitigating Conflict, cont d STEP 5: Help design the new state systems Stay engaged in state-level implementation of new policies and protocols State monitoring and oversight Consumer pathways to filing grievances and appeals Tracking of grievances and appeals Tracking of individual consumer experience You deserve a seat at the table! HMA 20
54 QUESTIONS? Julie Hamos, Principal Health Management Associates HMA 21
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