Beneficiaries Sue New York Over Loss of HCBS Services
July 29, 2014 09:07 AM
On July 15, in Taylor v. Zucker, the New York Legal Assistance Group (NYLAG) filed a lawsuit (the Complaint) in the United States District Court for the Southern District of New York on behalf on three plaintiffs for the loss of Medicaid home care services due to the state’s transition to managed care. The Plaintiffs also sought to establish class action status. NAHC’s affiliate, the National Council on Medicaid Home Care, discusses the key elements of the lawsuit below.
The Plaintiffs sued New York for “denying, reducing and terminating Plaintiffs’ Medicaid home care services, by sending inadequate and untimely notices” as well as “failing to provide an opportunity for a fair hearing with ‘aid continuing’” “both of which threaten to result in the unnecessary institutionalization of Plaintiffs.” For details, see page 3, here. In New York, “Medicaid home care services” refers to home health, personal care, private duty nursing, and other types of long-term care services. For the full definition, see pages 8 to 9, here. Also, all Plaintiffs lacked “a change in their condition or circumstances that would justify the reduction or termination of their home care.”
As mentioned in the Complaint, in New York, all Medicaid home care services shifted to managed care. Medicaid managed care first came to New York with the approval of a Section 1115 waiver in 1997, called the Partnership Plan. In 2012, CMS expanded the Partnership Plan waiver to require mandatory enrollment in Managed Long-Term Care (MLTC) plans, which are managed care plans for long-term care. This 2012 amendment required beneficiaries dually eligible for Medicare and Medicaid to enroll in MLTC plans to receive Medicaid home care services. For those just receiving Medicaid home care services, Medicaid home care services was included in managed care via mainstream Medicaid managed care plans (MMCs) beginning August 2011. For details of the history of the evolution of Medicaid managed care in home care in New York, see pages 9 to 11, here.
The Complaint further stated that, according to federal law, Medicaid MCOs must provide the same extent of services that they are available in Medicaid fee-for-service, and that state contracts with MCOs are required to provide services “in an amount, duration, and scope that is no less than…under fee-for-service Medicaid.” Such state contracts must also define “medically necessary services” in a way no more restrictive than Medicaid fee-for-service. Also, the MCOs, just like the state must do in fee-for-service Medicaid, must send notices regarding suspension, reduction, or termination of services at least ten days in advance.
The Plaintiffs alleged the following:
The Plaintiffs. Plaintiff Janie Taylor is an 84-year old woman who received Medicaid home care services for 10 hours per day, 7 days per week since 2011. The extent of this assistance was “critical to enable her to safely engage in her basic daily activities, including going to the bathroom and preparing meals.” She was mandatorily enrolled in a MLTC in March 2013. Initially, the MLTC kept her Medicaid home care services hours as is. On June 23, 2014, Ms. Taylor received a notice from the MLTC stating that she was authorized to receive services for 5 hours, 7 days a week, for the period of July 1, 2014 through the end of the year.
The MLTC document sent to Ms. Taylor did not claim to “reduce” her care, but merely stated that the document was a “new authorization.” Despite New York ordering aid-continuing on July 2, the MLTC had not restored Ms. Taylor’s care to 10 hours per day, 7 days per week. For the full details, see pages 15 to 18, here.
Plaintiff Eddy Lemieux is an 18-year old man that due to multiple conditions requires 24-hour-per day continuous care. He originally received care through the Consumer Directed Personal Assistance Program (CDPAP), 24 hours per day in 12-hour shifts. In 2012, he was mandatorily enrolled in a MLTC. On January 14, 2014, the MLTC sent Mr. Lemieux a “notice of authorization” that tapered his care from 12 hours on January 25, 2014 to discontinuing services on April 22, 2014.
The notice stated that his previous level of care was “not medically necessary” but did not substantiate this claim. Mr. Lemieux’s services were then reduced in contrast to an appeals decision. For the full details, see pages 18 to 23, here.
Plaintiff Anibal Santiago is a 65-year old man enrolled in a MMC since 2007 for receipt of personal care services. For about three years prior to April 2014, Mr. Santiago received Medicaid home care services from the MMC for 12 hours per day, 7 days per week. On April 2, 2014, the MMC sent him a notice “approving” him for 4 hours per day, 7 days per week care.
This notice, even though it was “effectively a reduction notice” did not state anything to that effect, but was presented as an approval notice. An additional notice sent April 7 claimed that the reason for the reduction was “medical documents” but did not provide evidence of a change of medical condition. On appeal, the MMC stated on May 2 that Mr. Santiago’s care would be 8 hours per day, 7 days per week, and on May 3, his care was so reduced. For the full details, see pages 23 to 26, here.
Causes of Action. In addition to various federal and state laws, the Complaint alleges that New York violated the Due Process clause of the 14th Amendment to the United State Constitution, as well as the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Specifically, the Complaint alleged that New York violated the Plaintiffs’ right to adequate notice and a fair hearing before “threatening to reduce or terminate, and of actually denying, reducing or terminating home care services” as well as the right to receive aid-continuing. Additionally, Plaintiffs alleged that New York reduced or terminated home care services when there “has been no change in the recipient’s condition or circumstances that would justify the reduction or termination,” and that the state’s actions threaten to unnecessarily institutionalize the Plaintiffs. For the full details, see pages 30 to 31, here.
Class Certification and Relief Requested
The Complaint also petitioned that the Court recognize their suit as a class action lawsuit, comprised of:
All current and future Medicaid recipients in New York State who receive home care services through Medicaid Managed Care Organizations and who have suffered or will suffer threatened or actual denials, reductions, or terminations of their home care services without timely and adequate notice, and/or without any change in their condition or circumstances which would justify a reduction or termination, and/or without aid-continuing benefits pending internal appeals and the issuance of Decisions After Fair Hearings[.] [Complaint, 31-32]
Additionally, the Plaintiffs requested the reinstatement of previous home care services hours, and preventing New York from reducing or terminating home care services when no change has justified such reduction or termination. For full details, see page 32-33, here.
The allegations in the Complaint raise significant access and process issues. As stated above, Medicaid MCOs must provide the same extent of services, and notice of termination of services, as under fee-for-service Medicaid. The facts alleged in this case raise significant concerns echoed nationwide that, in the widespread transition of LTSS to managed care, beneficiaries will be afforded the same protections that they had in traditional Medicaid. The Council supports ensuring access to home care services in the managed care model.
The Council is monitoring practices of states in transition to managed care with regard to provider rights. The Council encourages providers to continue to advocate for greater support of HCBS in managed care through their state associations, as well as through state and federal governments. Home care providers are encouraged to keep abreast of managed care developments in their states, and nationally, and to contact the Council with any questions or concerns.