Another Lawsuit Threatens California Duals Demonstration
September 22, 2014 09:24 AM
On August 29, the Independent Living Center of Southern California, along with three dual eligible beneficiaries, sued the federal and California governments in the US District Court of the Central District of California, Western Division over the state’s dual eligible demonstration, the Coordinated Care Initiative (CCI). The Plaintiffs are seeking to stop the CCI. The National Council on Medicaid Home Care - a NAHC affiliate - discusses key elements of the lawsuit (the Complaint), below.
CCI Denies Services and Informed Consent
In the Complaint, the Plaintiffs allege that the CCI prevents beneficiaries from receiving treatment during its transition period, “namely, from the time the dual is auto-enrolled into a Participating Plan for all Medicare and Medicaid services, to the time that the dual is able, if at all, to be seen and treated by the primary care physician (PCP) to whom the dual is assigned, and, obtains the medicines or treatment prescribed by the PCP.” The Complaint also alleges that “many” beneficiaries were forced to discontinue their previous treatments, which included prescriptions. The Plaintiffs assert that no other duals demonstration prevents enrollees from using their current physician during the transition period, as does the CCI.
Plaintiffs claim that this denial of services violated the human-experiment statute, 42, U.S.C. Â§ 3515b, as it was done without obtaining informed consent.
For details, see pages 4-6, and 19-27, here.
Auto-Enrollment Violates Freedom to Choose Medicare Provider
The Plaintiffs also argue that auto-enrollment violates Â§ 1802(a) of the Medicare Act as it denies beneficiaries the freedom to choose a Medicare provider.
For details, see pages 6 and 27-30, here.
Notices Are Illegible by Cognitively Impaired, Homeless, and non-English Speakers
The Complaint further alleges that Defendants violated the Plaintiffs’ due process rights under the Fifth and Fourteenth Amendments, as they provided beneficiaries with notices that they could not read. The Complaint asserts that the 40 percent or more of the dual eligibles enrolled have a mental or cognitive impairment that prohibits them from comprehending the notices sufficiently to make an informed and competent choice regarding whether or not to opt out of the demonstration. The Complaint further states that the homeless duals population is similarly denied such a choice as these individuals don’t even receive the notices. Lastly, those that cannot read English are similarly denied an informed choice as they cannot comprehend the notices.
For details, see pages 33-37, here.
Size of Enrollment Population Violates Waiver Statutes
The Plaintiffs also allege that the Defendants violated both Medicare and Medicaid waiver statutes. The Complaint states that “the unprecedented huge number of 456,000 duals participants” exceeds the scope for properly testing if services were adequate in the demonstration. Additionally, the size of the demonstration violates these statutes as it puts an unnecessarily large number of duals at risk.
For details, see pages 39-48, here.
The Council is skeptical of the likelihood of this lawsuit’s success, given the recent defeat of another lawsuit seeking to similarly halt the CCI. While mostly ruling on other grounds, the California Superior Court also visited the topic of readability of the notices, and found them to be sufficiently readable. For the court’s ruling in that lawsuit, click here. For a previous Council brief on that lawsuit, click here.
The Complaint’s criticisms of the CCI come on the heels of previous stakeholder criticisms, discussed in previous Council briefs, here and here. The Council will continue to monitor the lawsuit. Home care providers are encouraged to keep abreast of developments in the dual eligible demonstrations, and to contact the Council with any questions or concerns.