new challenges to advocacy in an elder law practice: florida's ltc medicaid managed care program...

New Challenges to Advocacy: Florida's LTC Medicaid Managed Care Program

Central Florida Estate Planning CouncilMarch 20, 2014Presentation by:Emma Hemness, Esquire, BCS, CELALaw Office of Emma Hemness PA309 N. Parsons AvenueBrandon, Florida 33510www.hemnesslaw.comNew Challenges to Advocacy in an Elder Law Practice: Florida's LTC Medicaid Managed Care Program and other stuff

Floridas Managed Care Programs That Impact ElderlyAn Overview of the LTC SMMCFloridas LTC Medicaid Managed Care ProgramLegislation passed in 2011Enrollment: Mandatory for all LTC recipientsADA/ALE/Diversion/CDC+: all being consumed into Big WaiverNew enrollees: Seniors, plus age 18 or older and eligible for Medicaid by reason of a disability AND determined by CARES to require nursing facility level of care CMS approved February 1, 2013Statewide implementation began August 1, 201311 Regions: February 1 and March 1 upcomingMMA portion to begin May 1, 2014 (more on this later)Throughout this timeline, reliable information for senior consumers lackingFormation of the Foundation for LTC Solutions LLC, a senior advocacy organization (introduction)

The Foundations Experts

Three (3) Florida Bar Board Certified Elder Law Attorneys: Emma Hemness, Rebecca C. Bell, and Twyla Sketchley

Thousands of unpaid, volunteer hours, advocating for Floridas seniors. Providing 1. Objective information; 2. Concise explanations; 3. Conflict-free advocacy.

Consulting with Families as well as Providers

Legal Expertise in Grievances and/or Fair Hearings

Senior Advocacy OrganizationLike us on Facebookwww.Facebook.com/FoundationforLTCSolutions Visit our Websitewww.ltcfoundation.org Email questions, comments, [email protected]

LTC Managed Care Services

Case ManagementPlan provides case management to ALL participantsIncludes nursing home residentsOversees care for participants in the planIntegrating care across services

Rebalancing To CommunityManaged care is to:Facilitate transition of nursing home residents to the communityEmphasize home-like environment and community integrationIncrease care coordination and case managed across the care continuumIncrease personal goal settingExpand participant directed care

Rebalancing To CommunityCapitated rates will be adjusted annually to encourage Plan to shift services from NHs to community-based carePlans get financial incentives to shift 2-3% from NHs each year Shift will continue until 35% of NH population is rebalanced to the communityAHCA has set 2% as goal for 1st yearGranny Dumping for Bonuses

Transition from NH to ALFRumors and misinformation is widespreadSome bad information is coming from reliable sources

Be aware that in order for a senior to receive Medicaid benefits in an ALF or in the home (without being on the LONG waitlist first):resident must receive ICP Medicaid approval before moving from NH AND reside in NH for at least 60 days

These requirements were confirmed by the Foundation in a telephone call with Cheryl Young, LTC Bureau Chief, Department of Elder Affairs on Friday, January 10, 2014

Waivers & Enrollment CapsCommunity-Based Services are NOT Entitlements; Waitlist for Community-Based Services will continue to exist

Florida LIMITS # of seniors access to Medicaid in the home or in the assisted living facility

Cap on Enrollment for next FIVE (5) years! 37,000 seniors

AHCA statistic: 36,245 current recipients

Waiting List: 34,559

Challenges to Advocates under SMMCNew challenges -- multiple level advocacy

Enrollment Decisions Selection of PlansSee the Foundations 40 page Consumer Decision Making GuideDecision Tree next slideWaiting List AccessRebalancing in the hands of the PlansComplaints reduction, denial or termination of servicesGrievancesFair HearingsPlans of CareQuantity of services/Quality of servicesComprehensiveness of services/Appropriateness of servicesLocation of services

All seniors will find themselves in one of these 4 categories. Seniors are either living in the community (in home or assisted living facility). Or, seniors are living in the nursing home. Its that simple. For each category, there is important Dos and Donts. If you are a Senior and you are not covered by one of the 4 categories, then see the light bulb because you need more guidance for example to navigate how to get on the waiting list Who to call? What 14Critical Info on EnrollmentWhen to EnrollFollow the Decision Tree Look for the Regional Roll-outHow to Reach the Enrollment BrokerTo Be or Not to Be the Designated RepresentativeAsk for a face-to-face meetingAHCAs DR form (see next slide)Exercise Your Rights Do not allow Auto EnrollmentKey Time Periods30 day to choose90 day to changeGood cause change WATCH OUT60 day open enrollment

This form can be completed by a competent Medicaid Recipient. It must then be returned to Agency for Health Care Administration (AHCA) . It can be Faxed: (850) 402-4678

Emailed:[email protected]

Mailed: Agency for Health Care AdministrationP.O. Box 5197Tallahassee, FL 32314

Submit Complaints (Not Grievances) On LineChanging plans after 90 daysIf enrollee is unhappy with their plan after 90 days of enrollment, enrollee must have a good cause reason to changeGood cause includes: enrollee or plan moves, enrollees health care provider not in network, marketing violation, poor quality of care, delay or denial of services, lack of access to services

Changing plans after 90 days (con)How to request a good cause change:Enrollee calls Choice Counseling at 1-877-711-3662Warning: Make sure the choice counselor follows the proper procedure by having the Agency for Health Care Administration (AHCA) make the good cause determination; if denied a Plan change request, enrollee should receive a written denial notice; enrollee can appeal through Medicaid Fair Hearing

Denial, Reduction, Suspension or Termination of ServicesIf an enrollee is unhappy due to a change in the amount or type of services, this can be a violation of the lawEnrollee has 2 choices when receive a Notice of Action1. File an appeal with the Plan w/in 30 days OR2. File a request for Fair Hearing with DCF w/ in 90 days

Continuing Services Enrollee must request an appeal with the Plan within 10 business days of the mailing date of the Notice or the intended effective date of the action, whichever is later.ORRequest Fair Hearing within 10 days of the date of notice of action.Enrollee must request extension of benefits

Filing for a Fair Hearing Four different ways: To phone, call (850) 488-1429. To fax, fax to (850) 487-0662. To write: Mail to Department of Children & Families, Office of Appeal Hearings, Building 5, Room 255, 1317 Winewood Boulevard, Tallahassee, Florida 32399-0700. To email: [email protected]

Downhill Transition an explanationRebalancing: Identifying seniors capable of NH transitionLegislative goalGeorgetown University statisticsAHCAs goal for 1st year

Critical Impact/Accessibility through TransitionWaiting list for HCBSLonger and longer and longer

Uphill Transition an explanationPlans of CareQuantity and Quality of ServicesExample: Assisted Living Facility ResidentWhat is the Blended Rate?The Poor AdvocateComplaints cost $$Evaluations of Plans of Care cost $$

Getting Paid is VERY nice! Plan ahead.

WE (you) dont want to be a poor advocate Medicaid Income CriteriaFloridas Income Cap $2163 gross monthly (2014)Countable Income (all non-exempt income):Applicant: Gross monthly income is capped at $2,163.00Are Veterans benefits exempt: yes? or no? Applicant is disqualified without an income-cap trust -- A legal documentRestrictions on who may create it , other than the ApplicantIntersection with new DPOA statute in Florida Excluded Income: PNA $35 and UMECommunity Spouse: All income is excluded.

Community Spouse Income Allowance (until 7/1/2014)Maximum: $2931.00/Minimum: $1938.75Income capped by formula from Applicant to spouseAlternative: Unlimited Monthly Income for Community Spouse to live on: By legal process with Court Order

Too Poor to be on MedicaidA Sad Reality Too Poor to be on Medicaid in an ALFRoom & board comes 1stNo spousal diversionNo $$ for UME (Medicare supplement premium etc.)

Medicaid Resource CriteriaCountable Assets (all non-exempt assets)Applicant's Resource Allowance: $2000 in countable assets. If income is less than $843, then $5000 in countable assets.

Community Spouse Resource Allowance: $117,240.

Excluded Assets:One vehicle less than 7 years of ageMultiple vehicles greater than 7 years of ageIrrevocable pre-need funeral arrangementsBurial plots for Applicant and immediate familyA primary residence with the value capped at $543,000 for single ApplicantsLife insurance with the face or cash value capped at $2,500Burial expense fund capped at $2,500Personal effects and household goodsRetirement accounts (only under special circumstances)

Medicaid Penalizes TransfersPenalties and Disqualifications from Medicaid coverage:Any transfers of income or assets to a child, church, or charity within the lookback periodLookback period: Total value of all gifts made after January 1, 2010 up to time of applicationPenalty Divisor: $7,638 (for applications filed after 9/19/2013)

Transfers withOUT PenaltiesAnything for which one has received FMV compensationExempt transfersAnything to disabled child or to a trust for disabled personHome to child if 2 years residencyAny amount of $$ to d4C trusts (pooled trusts)Can be spent within the lifetime of the Medicaid recipientsAdvocacy FundYour Unique Position within AdvocacyPositioning on Wait List will become more criticalAssistance with completing the 701SComplexity of 701D instructions (for 701b)

Counter-analysis of new Plan of CareAdequate quantity/quality of servicesAccurate quantity/quality of servicesAppropriateness of community setting

Expert testimony in Fair Hearing/Plan Grievance processJust when you thought it was safe Managed Medical AssistanceSecond Half of Medicaid Reform

Your residents must choose medical assistance plan now

Region 5 and Region 6Roll-out June 1Pre-welcome letters soon

All LTC Plans are MMA PlansExcept American Eldercare

Hot Topic: Unlicensed Practice of LawWhat is considered the practice of law?Giving legal adviceCounsel clients as to their rights & obligations under the lawPreparation of legal documents including contracts, powers of attorney, trusts, wills, etc.What is done in which context matters

Who commits unlicensed practice of law?Anyone who is not admitted to practice law in the State of FloridaAttorneys who are suspended or disbarred from practiceAttorneys who assist those engaged in the unlicensed practice of lawDoesnt meet with clientNot paid by clientDirected by someone other than client

UPL in Medicaid PlanningDrafting & Preparing Legal DocumentsDrafting Income Only Trusts a/k/a Qualified Income Trusts (QIT)Drafting of Personal Service ContractsDrafting of Powers of AttorneyAdvising Clients Regarding Actions to Take With Regard to Property in Compliance with Medicaid Rules & RegulationsMarrying a clients specific facts to the Medicaid rules AND providing advice on what to do next

What is NOT UPL in Medicaid Planning?For example, the stuff stated before PLUSCAN assist client is collecting the documentation needed to support a Medicaid ApplicationCAN assist client in organizing the documentation needed to support a Medicaid ApplicationCAN assist with submitting Medicaid Application CAN assist with submitting requested documentation to support Medicaid ApplicationCAN act as Designated Representative CAN assist with Fair Hearing (*State likes this because State wins more often when no attorney involved)

UPL is a crime! 3rd degree Felony!!

State or Industry Regulation?Medicaid PlannersNONE

AttorneysFlorida BarCharacter InvestigationExaminationRequired EducationRules Regulating the BarCant claim expertise without being an expertCant make guaranteesConflicts of Interest ProhibitedConfidentiality RequiredFees Must Be DisclosedLimitations on AdvertisingYOU CAN COMPLAIN!!!

Qualifications?Medicaid PlannersNONECan be felonsCan have other professional licenses revoked for bad actsNo certainty of knowledgeGenerally have no liability insuranceAttorneysFlorida BarLicensed in FloridaDiscipline History is PublicLicense Status is PublicEducation RequiredHad a criminal and financial background check to become a memberIf Board Certified they have insurance and have expert qualifications

Problems with UPLBenefit IneligibilityImproper Sale of Financial ProductUnnecessary Planning UndertakenBad DocumentsPrivacy ViolationsExploitation/Theft/Use of IdentityCreates liability for those working with those engaging in UPLNegligent referralTortious interference with business relationshipDamages the Reputation of Good Advocates!What MediCARE coverages are impacted?Claims determinations by Medicare contractors involving [maintenance cases]:Skilled nursing and skilled therapy services affecting:Skilled nursing facilitiesHome healthOutpatient therapySettings where no improvement may be expected, yet skilled nursing and/or therapy services -- to prevent or slow a decline in condition -- are necessary because of the particular patients special medical complications or the complexity of needed services.

Breaking News: CMS revisions No to No Improvement StandardJimmo Settlement required two main actions (clarify & educate)Within one year of settlement, CMS had to:Issue Medicare Manual revisionsRevising relevant program manuals used by Medicare contractorsReworded for clarity so as to reinforce the intent of existing, longstanding policyImproper rule of thumb was being appliedCoverage of therapy does not turn on the presence or absence of a beneficiarys potential for improvement from the therapy, but rather on the beneficiarys need for skilled care.Federal Law: 42 CFR CH. IV s. 409.32(c)The restoration potential is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.

CMS is clarifying

Emma Hemness, B.C.S., CELAFlorida Bar Board Certified In Elder LawLicensed in Florida

Law Office of Emma Hemness P.A.309 N. Parsons AvenueBrandon, Florida 33510Telephone: (813) 661-5297Facsimile: (813) 689-8725E-mail: [email protected] Website: www.hemnesslaw.com

Law Office of Emma Hemness

@planning4elders

Question & Answer

FOUNDATIONFOR LTC SOLUTIONS

FOUNDATIONFOR LTC SOLUTIONS, LLC

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new challenges to advocacy in an elder law practice: florida's ltc medicaid managed care program...

Documents

care rebalancing

planintegrating care

communitymanaged care

services rebalancing

medicaid benefits

floridas seniors

ltc bureau chief

ltc solutions llc