“The Reinventing Medicaid Act 2015” Takes Direct Aim at Vulnerable Rhode Island Elders and their Families

“The Reinventing Medicaid Act 2015” Takes Direct Aim at Vulnerable Rhode Island Elders and their Families

On May 7th, the Governor introduced to the Rhode Island House and Senate Finance Committees amendments to her proposed budget. Titled “The Reinventing Medicaid Act of 2015”, this legislation contains twenty sections.

This post will focus on one of these–Section 6–which seeks to directly affect the limited opportunities for middle-class Rhode Islanders requiring Medicaid long-term care services to preserve some of their assets. The changes in this Section 6are all to Rhode Island General Laws §40-8-15 entitled, “Lien on Deceased Recipient’s Estate for Assistance”.

First, the Governor’s proposal seeks to expand “estate recovery” to assets passing outside the probate estate. Literally twenty years ago, in 1995, the State amended this section of the General Laws to conform with a federal law requiring states to put claims on the probate estates of deceased Medicaid recipients. The federal law, called “OBRA ‘93”, enabled the states to, if they chose, “expand” their estate recovery to non-probate assets.

The large majority of states chose, as Rhode Island did, to limit its estate recovery efforts to probate assets. This was the procedure utilized by the Department of Human Services for the next seventeen years.

In 2012, however, the State sought to expand its estate recovery to include non-probate assets. This would means, for example, that real estate held jointly by a mother in a nursing home on Medicaid with her adult son, which would ordinarily pass without a claim to the adult son, would now be subject to the State’s lien. Due to the dramatically increased efforts which would be required by the Department of Human Services to accomplish this “expansion”, as well as the House Finance Committee’s understandable distaste for adding any additional pain beyond that required by federal law, this proposal was roundly rejected by the House Finance Committee.

Also rejected in 2012 was a proposal by the State to put so-called “lifetime liens” on property of certain Medicaid recipients. Presently, as long as the Medicaid recipient declares an intention to return to his or her home, the home remains an exempt asset. While the home is potentially vulnerable post-death if it passes through probate, there is no impact during the life of the Medicaid recipient (unless the property is sold in which case the Department of Human Services needs to be notified).

In 2012, the House Finance Committee also rejected this effort to impose “lifetime liens”. It did, however, enact two statutes that provided additional protections to the Department of Human Services to prevent properties belonging to current or deceased Medicaid recipients from being sold without the Department’s notice.

Fast forward to May 7, 2015. In Section 6 of “The Reinventing Medicaid Act of 2015”, the current administration “doubles down” on the efforts made in 2012. Apparently unaware of the drubbing these proposals took by the House Finance Committee in 2012, the Raimondo administration has tried them again, adding to them an additional extraordinary provision which would allow the Department to collect interest at the rate of 12% per annum on its claims.

You read that right – 12%. Your CDs are not even getting 1%. The 10-year U.S. Treasury bill is getting slightly more than 2%.   But the Governor proposes that the State, unlike any other claimant in a probate estate, receive not only a statutory rate of interest, but a rate equivalent to that which a successful party in civil litigation would enjoy after obtaining a judgment.

But wait – there’s more!   Section 6 of “The Reinventing Medicaid Act of 2015” adds an entirely new section which would deal with eligibility for long term care Medicaid, not just estate recoveries. It attempts to graft onto the estate recovery provisions statutes—not regulations as currently exists—regarding asset transfers and eligibility requirements for long-term care Medicaid. And as an added bonus, it is a remarkably poorly written, referring to terms like “annuity”, “penalty period” nowhere defined in the Rhode Island General Laws.

On Tuesday evening, May 19th, I testified (video below) before the House Finance Committee in opposition to Section 6 of the Act. Some of the Committee members were the same Representatives who heard and rejected the previous attempt in 2012.

I am confident that the House Finance Committee and the House the Representatives as a whole will again reject this aggressive and unnecessary attempt by the State to add pain to Rhode Islanders who already have the misfortune of suffering from a chronic illness or condition requiring them to seek long-term care Medicaid benefits.

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What’s Really Wrong with Family Care

These days we have shared  a lot of concern over Governor Walker’s attempt to make sweeping changes to Family Care and Aging and Disability Resource Centers without consulting any citizen stakeholders. (See the article I wrote on that issue.) We don’t really know what Governor Walker thinks is wrong with Family Care the way it is, other than cost. (And it has not yet been clearly spelled out how he thinks the sweeping changes he wants will save costs, leading me to believe the cart has been put before the horse.)

I’ll tell you what’s really wrong with Family Care, in my opinion. The Budget proposals don’t fix the problems I am going to talk about.

PROBLEM 1: ARBITRARY RULES ABOUT TAKING FAMILY CARE IN ASSISTED LIVING FACILITIES

Family Care allows assisted living facilities to pick and choose when they agree to take Family Care. So you never know if you will be able to use Family Care even if you meet all the financial qualifications.

In the operation of Family Care, the State allows assisted living facilities to set parameters on their agreement to allow residents to use this benefit. Which means that an assisted living  facility could say that it will only take Family Care benefits for a limited number of residents. Or the facility could say that it will only let you use Family Care benefits if you have paid privately for two years.

By contrast, under federal law, if a skilled nursing facility agrees to take Medicaid payments for any patient, it must agree to take Medicaid for anyone who qualifies, no strings attached. A nursing home cannot refuse to take Medicaid for a qualified patient. It cannot limit the number of patients for whom it will take Medicaid. It cannot impose a requirement that the patient must pay privately for a specified amount of time.

It gets much more complicated to figure out how to plan when you are not sure about whether you will be able to count on Family Care in the assisted living facility you would like to live in. When I am talking with my clients about Family Care, I have to explain it this way:

1) First you have to find an assisted living facility that you are comfortable with for your loved one.

2) Then you need to find out if it takes Family Care. There is a web page you can look at here. You will find lists that indicate whether or not a particular facility in a particular county takes public funding, among other useful information. You can also search the provider lists for the Family Care Managed Care Organizations in your county. OR, you can ask the billing office of the facility. Getting a “yes” answer is the first step.

BUT THAT IS NOT ENOUGH

3)  The next thing you have to find out is what the facility’s limitations are for taking Family Care. “Do you take Family Care right away if someone qualifies?” “How long must we pay privately before you will take Family Care?” “Do you only allow Family Care for a limited number of residents at a time?”  OR, the trickiest one of all. “Do you take Family Care in the Wing I am considering?” This is because some facilities will refuse to take Family Care in certain sections of the residence where a higher care level is involved, such as a “memory care” wing.

Making the wrong move can be a disaster. If you pick a facility because you hear it will take Family Care, but you don’t know the rules about WHEN or in what WING the facility  will take Family Care, you could run out of funds and be unable to access Family Care. Worse yet, it will be that much more difficult for you to find a new place. I painfully recall a family who inquired of a facility, moved in, paid privately as required, and applied for Family Care after several years, only to be told the facility didn’t take Family Care for the memory wing in which the client resided. We were able to persuade the facility to bend the rules.

But why? The reason for all this is that the state is unwilling to pay assisted living facilities a decent rate to provide quality care, and so they give some leeway not to rope the facilities in too much when they DO take Family Care.  These places are caring for our mothers and fathers, grandparents and our disable children. They deserve a decent rate of payment.

(Aside: I am all too aware of the growing costs of long term care. But look at the inevitable. The population of individuals with dementia in Wisconsin is predicted to grow by almost 20% in the next ten years, according to the Alzheimer’s Association. We cannot nickel and dime this crisis by cutting rates to the people caring for our loved ones. The time to figure out a funding mechanism for quality care for everyone who will need it is upon us right now. And YES, it NEEDS TO cost the taxpayers more money.)

If you are nervous about all this uncertainty, I don’t blame you. I tell my clients, “well you can always go to a nursing home where they HAVE to take Medicaid if you qualify.” But that is ironic, since federal anti-discrimination laws including the Americans with Disabilities Act (ADA)  require states to provide services to disabled individuals in the least  restrictive environment available. I believe this arbitrariness in Family Care is in violation of those anti-discrimination laws.

PROBLEM NUMBER 2: YOU CAN’T GET FAMILY CARE BENEFITS WHEN YOU QUALIFY FOR THEM.

When you apply for Family Care, there is a lengthy process involved that takes several weeks. You must call to schedule a meeting, you are required to have a counselor talk to you about the program, then have a screening to see if you meet certain functional tests, then fill out a financial application and have it reviewed. After you get through all of that, which can be 4-6 weeks, then you get to choose your managed care organization and enroll in Family Care. Only then do you actually get to receive benefits. This is a problem if you are in assisted living, because you apply for Family Care when you have virtually run out of funds to pay for your care. If it takes 6 weeks to get benefits, you end up with an outstanding bill you cannot pay.

Federal law requires that people who apply for Medicaid get benefits as of the date of application (and in most cases as of three months prior to the date of application, if you were otherwise qualified.) This is how it works if you are in a nursing home. In a nursing home, if you apply for Medicaid and it takes a month or 6 weeks to process your application, your Medicaid benefits will go back to when you applied, and even up to three months before that. If you paid privately for that time, you will even get a refund. Not so with Family Care.

Now, the actual Family Care rules require the state to give you benefits as of when you apply. The state just doesn’t follow its own rules, let alone federal law.  Again, this is another lawsuit waiting to happen.

You may be able to get around this by demanding “conditional enrollment” in Family Care. This is a process where you are enrolled right at the beginning, but if it turns out you do not meet the financial requirements, you have to pay for your services.

This is part of the Family Care Contract mandated by the state of Wisconsin. I’m not kidding:

 Provision of Services While Financial Eligibility is Pending
The MCO will cooperate fully in executing a memorandum of understanding or other written agreement with each ADRC within its service area that describes the circumstances in which the MCO will provide services to an individual who is functionally eligible but whose financial eligibility is pending.
This agreement can be to serve individuals whose financial eligibility is pending at the time of initial enrollment or during a period of disenrollment due to loss of financial eligibility.  The MOU shall include a process for the resource center to inform the individual, or their authorized representative, that if he/she is determined not to be eligible, he/she will be liable for the cost of services provided by the MCO.
The MCO will not receive a capitation payment for an individual during the time financial eligibility is pending. If and when eligibility is established, the MCO will receive a capitation payment retroactively to the date indicated as the “effective date of enrollment��? on the Enrollment Request form, up to a maximum of ninety (90) calendar days of serving the person while financial eligibility was pending.
The effective date of enrollment entered on the Enrollment Request Form shall also be no earlier than the date on which an individual or their authorized representative signs an explicit agreement (not just the enrollee’s signature on the enrollment form) to accept services during the period of pending financial eligibility.
If the individual is determined not to be eligible, the MCO may bill that individual for the services the MCO has provided. The MCO shall pay providers for services which were provided and prior authorized by the MCO.  MCO providers may not directly collect payment from the individual.
The timelines for completion of the comprehensive assessment and member-centered plan shall be the same as those indicated in Article V, Care Management.

The thing is,  most of the ADRCs seem to be entirely ignorant of this requirement so it is usually an uphill battle. In Milwaukee, they are well aware of the requirement but they flat out refuse to do it. One of these days, I will have to push the issue. But then again, if you don’t like that problem, you can always go into a nursing home. Hmmmm, there is that pesky ADA discrimination issue again.

Budget

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