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by Joseph A. Bollhofer, Esq.

           Mandatory Managed Long-Term Care has hit the home-care Medicaid system in New York. These services now will be provided through private for-profit companies. Beginning July 1, 2012, all new applicants over age 21 in New York City who are “dual-eligibles” (entitled to Medicare and Medicaid) were required to choose a Managed Long-Term Care (MLTC) plan administered by one of several private authorized companies. Those persons in New York City already receiving Medicare and services under a home-care Medicaid program are being “phased in” over a six month period. 
 
            Dual-eligible persons will receive written notice that they have 60 days within which to choose a Managed Long-Term Care plan. If they make no choice, a plan will be assigned to them. “Phase II” is scheduled to begin in Nassau, Suffolk and Westchester counties in January, 2013. The last three phases will encompass the rest of New York State during the next one and a half years. The State is also in the process of creating mandatory MLTC programs for other dual-eligibles, including those in nursing homes and assisted living programs. 

            The local Departments of Social Services will still evaluate a Medicaid applicant for financial approval. However, the decisions regarding the scope and level of home-care services will be determined by private insurers through their MLTC programs. This change applies to: 

·         Home and personal care
·         Home health care
·         Durable medical equipment
·         Prescription drugs
·         Adult day care
·         Transportation
·         Consumer Directed Personal Care
·         Certain ancillary and ambulatory services, such as dentistry and optometry

            The Managed Care companies will receive a fixed monthly capitated (per person) rate from New York for their services. It is expected that the need for these companies to profit from the programs will conflict with legitimate needs of their members for services. Therefore, it is important that a qualified advocate, such as a geriatric professional, nurse or social worker, be present at the assessment to appropriately communicate health care needs and assistance requirements with activities of daily living. 

            Although a decision providing too few hours of coverage or services can be challenged through an internal grievance and appeal process and, ultimately, a Fair Hearing with the Department of Health, such a process is quite lengthy. Therefore, it is critical that, if a person is already receiving care, such appeal be started immediately and that a request be made for aid to continue during the appeal process.

            The mandatory MLTC program was implemented by New York State with the expectation that it will reduce the costs associated with the Medicaid program and long term care in general. It is likely that there will be a significant reduction in home care services provided to those in need. However, although these reductions may lower New York State’s Medicaid budget initially, if individuals cannot obtain the level of care that they need at home, they will be forced into skilled nursing facilities. That would be a great injustice to those elderly and disabled individuals who need care. Also, courts have ruled that such a plan is against public policy, and I believe it is short-sighted. Care in skilled nursing facilities is more expensive than care at home. Therefore, it is predicted that an ultimate unwanted result will be dramatic increases in Medicaid costs. 

            Although there is much uncertainty regarding the implementation and management of this new system, one thing is certain: applicants and recipients will no longer be dealing with government employees who will be making decisions regarding long-term home care. They will instead be dealing with employees of private companies who will be compelled to make those companies profitable. It is therefore of utmost importance that those applicants and recipients have qualified advocates on their side from the beginning of the process.

Copyright 2012 Joseph A. Bollhofer, Esq.

Editor’s Note:Joseph A. Bollhofer, Esq., is an attorney who practices law in the areas of elder law, Medicaid, estate and business planning and administration, real estate and personal injury. He is a member of the National Academy of Elder Law Attorneys (NAELA) and of the Elder Law, Real Property, and Surrogate’s Court Committees of the Suffolk County Bar Association and the Elder Law, Real Property Law and Torts, Insurance and Negligence Sections of the New York State Bar Association. He has been serving area residents since 1985 and is admitted to practice law in New York and New Jersey. His office is located at 291 Lake Ave., St. James, NY. (631-584-0100). For reprints of this article and others send a request to info@bollhoferlaw.com or visit www.bollhoferlaw.com.