New Regulations Create Opportunity for Better Long Term Services and Supports: Medicaid Managed Care Regulation Preview

States and the federal government spend over $14 billion a year on Medicaid managed long-term services and supports—yet, there has never been an clear federal regulation defining state and managed care plan responsibilities in this massive enterprise. Until now. Last week, the federal Centers for Medicare & Medicaid Services (CMS) released a final regulation on Medicaid Managed Care. This new regulation details, among other things, the federal government’s expectations for states and managed care organizations (MCOs) that contract to deliver managed long-term services and supports (LTSS) for older adults and people with disabilities.

For the nearly 800,000 individuals who receive their LTSS through managed care, the final regulation has the potential to strengthen the delivery of their care and services. States have until 2018 to fully implement the regulation’s policies and it is important for advocates to engage in the process.

As states implement the new regulation, low-income older adults could benefit from some key improvements:

  • Greater access to services to help seniors live in the community: Consumer advocates pushed for a clearer definition of medically necessary services to help enrollees access the benefits of community living. CMS listened and revised the definition. The new definition of medically necessary services includes services that provide enrollees with an opportunity to access the benefits of community living, achieve person-centered goals and live and work in the setting of their choice.
  • More supports to navigate LTSS options: States will be required to develop a Beneficiary Support System. For all enrollees, the System will provide enrollment and choice counseling support. For those receiving LTSS, the System will also provide: 1) an access point for complaints about the MCO, 2) education on grievance and appeal rights and the state fair hearing process, 3) assistance navigating the grievance and appeals process, and appealing adverse decisions (but not direct representation at State fair hearings), and 4) review and oversight of LTSS program data to identify systemic problems. CMS does not expect states to develop an entirely new consumer network for the System, rather, the agency expects states will draw up on existing organizations and resources.
  • More protection during appeals: MCO enrollees will have a right to retain aid pending an appeal. The rule finalized the original proposal that services continue at the end of an authorization period, pending appeal. In addition, enrollees can request a state fair hearing after exhausting the MCO’s internal level of appeals, and MCOs can only establish one level of internal appeals. Consumer advocates requested additional clarity and specificity on the notice the MCO must provide regarding recoupment if the appeal is not successful. In response, CMS will be providing MCOs with model notice language to ensure the notice does not discourage an enrollee from pursuing an appeal.
  • Better language access: Medicaid managed care organizations (MCOs) will be required to provide interpretation services in all languages, not just prevalent languages, to limited English proficient enrollees. In addition, states will determine the prevalent languages that MCOs must translate important member materials into. Each MCO also must include information about its network providers’ cultural and linguistic capabilities, including languages offered by the provider at the provider’s office and whether the provider has completed cultural competency training.

The regulation gives significant deference to the states to shape enrollment policy and a quality strategy. Advocates should be involved in their state implementation process to ensure each are beneficiary-centric and advance community living goals:

  • Enrollment policy that could leave beneficiaries vulnerable: Despite strong advocacy consumer organizations, the final regulation rolls back one of the proposal’s key enrollment protections. While the proposal required states provide potential enrollees with 14 days of fee-for-service coverage to make a managed care enrollment decision, the new regulation does not include any set time period for enrollment decisions. The regulation does include disenrollment protections specific to LTSS beneficiaries. Enrollees can disenroll from an MCO after the 90 day disenrollment period “for cause” if their residential, institutional or employment supports provider leaves the MCO network.
  • Quality improvement without clear measurement guidance: Like the proposed rule, the final regulation gives great deference to the states regarding quality improvement, and does not recommend any quality measures specific to rebalancing-despite the fact rebalancing measures are available in a few states. States will be required to develop a quality improvement program that will include measures to evaluate MCO performance relating to quality of life, rebalancing, and community integration activities for individuals receiving long-term services and supports.

The changes outlined here are just a few of the many aspects of the overall final Medicaid managed care regulation. In the coming weeks, Justice in Aging will explore these elements in greater detail and share more insight with advocates.

Fay Gordon

About Fay Gordon

Fay Gordon is a Staff Attorney in Justice in Aging's Oakland office