July 27, 2015
Vikki Wachino
CMS Deputy Director
Director, Center for Medicaid and CHIP Services
Centers for Medicare and Medicaid Services
Attn: CMS-2390-P
P.O. Box 8016
Baltimore, MD 21244-8016
Re: Comments on Proposed Medicaid Managed Care Regulations; File
Code CMS-2390-P
Dear Ms. Wachino:
On behalf of the National Association of Area Agencies on Aging (n4a), which represents the country’s 623 Area Agencies on Aging (AAAs) and serves as a voice in the nation’s capital for the 256 Title VI Native American aging programs, we are writing in response to the recently proposed regulations for Medicaid Managed Care.
AAAs and Title VI programs are on the frontlines of the country’s unprecedented demographic shift as 10,000 baby boomers turn 65 each day. It is estimated that 70 percent of this rapidly growing older adult population will need Long-Term Services and Supports (LTSS) and with only a small fraction of older adults having the resources necessary to fund the full scope of the care that they are likely to need, the
predominance of Medicaid as the primary payer for LTSS will only continue to increase.
As CMS has noted, with the rapid expansion of managed care as a mechanism to deliver Medicaid services—including LTSS—there is a pressing need to ensure that federal regulations respond adequately and appropriately to the dramatic change and growth in Medicaid managed care. We recognize that the proposed rules would make significant changes to the way the federal government, states and Managed Care Organizations (MCOs) work together to deliver Managed Care, in particular Managed Long-Term Services and Supports (MLTSS).
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As the LTSS landscape continues to change with more and more states adopting managed care systems for Medicaid LTSS, Area Agencies on Aging (AAAs) have already been playing key roles in those new systems by contracting with MCOs for services, including serving as care
coordinators and case managers and by providing options counseling for the managed care and/or dually eligible populations, as well as providing bundled services to clients.
The proposed regulations would introduce sweeping changes to the managed care delivery system and therefore significantly impact older adults and people with disabilities who rely on the LTSS services that AAAs and other community-based programs currently provide. n4a’s comments reflect this new landscape, offering caution or critique where we believe it is
warranted, to ensure that the critical community service component of LTSS—that is essential to the health and well-being of older adults and people with disabilities under a managed care system—is not inadvertently compromised.
Significance of Area Agencies on Aging in MLTSS Delivery
Congress established AAAs in 1973 under the Older Americans Act (OAA), in order to create a local planning, development and delivery infrastructure to respond to the HCBS needs of Americans age 60 and over in every community in the U.S. AAAs have a 40-year history of developing, coordinating and delivering a wide range of service options to allow older adults to choose the HCBS that best meet their LTSS needs. Examples of these services include in-home supports, home-delivered meals, transportation, medication management, evidence-based healthy aging programs, case management, caregiver support, elder rights, care transitions, insurance counseling and other supportive services.
As the very first agencies charged with promoting healthy aging and helping older adults “age in place” in their homes and communities, AAAs leverage private, local, state and federal funding streams to provide person-centered care for their clients. Federal funding sources most
commonly used by AAAs are OAA, Medicaid HCBS waivers, evidence-based health and wellness programs (such as falls prevention and chronic disease self-management programs) and State Health Insurance Assistance Programs (SHIPs). Increasingly, AAAs are expanding into Care Transitions partnerships with local health care entities and taking on defined roles in their states’ Medicaid Managed LTSS systems.
AAAs reach millions of older adults in every community across the country. As the heath care paradigm shifts to include and value the health benefits of community care and the social determinants of health as a key factor in achieving positive health outcomes, AAAs and other entities included in the Aging and Disability Networks must be key partners for MCOs responsible for ensuring that their clients have the LTSS needed to live with health and
independence in their communities. That’s why it is critical that the final regulations recognize the pivotal role that the Aging Network–AAAs and the more than 20,000 service providers they contract with—plays in any discussion of LTSS delivery for seniors, including MLTSS.
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Issues for Consideration in Developing Medicaid Managed Care
Regulations
We appreciate the significant effort and commitment made by CMS to develop a thorough and comprehensive package of proposed regulations and we appreciate the opportunity to submit our comments for consideration.
n4a’s comments reflect the varied experiences of our members with managed care LTSS in the past several years, as well as our overarching concern that the rapid deployment of MLTSS will, without a strong community services role, not meet the health needs of the vulnerable
populations our members serve. The comments we are submitting reflect the important role that AAAs, entities that are part of the Aging and Disability networks and other CBOs play in
delivering LTSS. Traditionally AAAs and other CBOs have served as the Medicaid HCBS waiver administrators and coordinators and as more states are moving toward MLTSS, it’s important to consider and recognize the key and consumer-trusted role that these agencies have been playing in ensuring improved beneficiary health outcomes. We believe that the following issues deserve particular consideration and revision before finalizing the regulations.
For brevity, our comments generally refer to an “MCO” rather than listing all three types of entities: an MCO, a PIHP (Pre-Paid Inpatient Health Plan) and a PAHP (Pre-Paid Ambulatory Health Plan).
Beneficiary Support System (42. C.F.R. § 438.71)
We agree with CMS, as proposed in § 438.71(a) that states should be required to “develop and implement a beneficiary support system that provides support to beneficiaries both prior to and after enrollment in a MCO.” That support system must include choice counseling for all
beneficiaries, assistance for enrollees in understanding managed care, and additional assistance for enrollees who use, or express a desire to receive, LTSS.
Conflicts of Interest (
42. C.F.R. § 438.816
)We have serious concerns that the way this rule may be implemented may not be in the best interest of beneficiaries, as it does not reflect the long-standing patterns and systems of support in the coordination and provision of LTSS in communities nationwide. Inadvertent damage to these existing systems, no matter how well-intentioned, could reduce beneficiary understanding, access and options, as well as negatively impact the cost-effectiveness of LTSS delivery.
Community-based organizations such as AAAs, ADRCs, SHIPs and CILs have long histories of providing consumers with independent, conflict-free options counseling. For over 40 years, AAAs in particular have been a trusted resource for older adults and their caregivers and have developed well-defined, person-centered, user-friendly systems to develop, coordinate and deliver a wide range of home and community-based services that track consumer outcomes. In
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order to ensure that any potential conflict of interest is prevented, AAAs have established
sophisticated and transparent firewalls between programs where it is necessary to ensure proper administration of programs and appropriate protection of beneficiaries’ interests.
It is standard procedure for AAAs to retain separate staff and billing for different revenue stream to mitigate any conflict. Clearly delineating the enrollment assistance, screening and assessment unit from the care management and waiver service coordination unit(s) eliminates the potential for conflict of interest. For example, when a state decides to implement MLTSS, to eliminate conflict, AAAs and other CBOs can split their units so that there is a separate
screening and assessment unit, which could do level-of-care assessments and presumptive financial eligibility for MLTSS and other program(s). This unit could also house options
counseling and the ADRC function. A separate unit(s) could handle waiver service coordination, case and care management for MLTSS program(s), as well as in-house case managers that work on care coordination for state or local-funded programs and other non-Medicaid programs. We believe that AAAs should be able to continue their long-standing roles in the community and not be forced to pick one role over another just because the state seeks simplicity. Firewalls and other mechanisms to prevent conflicts of interest are of great importance, certainly, but these proposed regulations or state interpretations should not unnecessarily limit AAAs to playing a single role in regards to MLTSS when consumers have looked to them for decades for multiple services supports. Doing so is unnecessary, a waste of resources (since another entity then has to duplicate a service the AAA already provides), and does not ultimately serve the interest of beneficiaries in that it limits their ability to access the highest level of person-centered assistance already available in their communities.
Recommendation on Enrollment Broker:
Therefore, we ask CMS to reconsider the definition of enrollment broker as outlined in § 438.816 as it does not recognize that entities performing choice counseling services may not also be an enrollment broker. n4a believes that qualified CBOs can continue to provide choice counseling and support for beneficiaries without actually assuming the role of enrolling consumers into plans; therefore, the CBO should not be considered the enrollment broker. This distinction is critical. If choice counseling or options management are considered part of enrollment brokerage, that automatically disqualifies the provider from contracting with an MCO for other vital services that beneficiaries may require in that community. For example, the majority of AAAs offer evidence-based health promotion and disease prevention programs; these resources should be available for MCOs to purchase if they wish for their enrollees. If local AAAs in that MCO’s area are the go-to experts for choice counseling/0ptions management and a host of HCBS and healthy aging programs, why should the beneficiaries be denied access to one set of those options? We understand the importance of enrollment functions being carried out independently from provision of other services to ensure no conflict of interest (i.e., bias toward a particular plan), but a AAA or other CBO could provide choice counseling and/or options management for beneficiaries separate from another entity playing the official enrollment function.
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Furthermore, we believe that using the strict definition of enrollment broker would cause particular harm to beneficiaries in rural, frontier or other areas where provider networks are more limited or smaller in number. In those areas, it is especially important to maximize all existing community resources and not arbitrarily limit what a AAA or other entity can provide its state’s MLTSS system with appropriate firewalls and protections.
Therefore, we urge CMS to change the wording in the proposed rule that bans all entities engaged in the enrollment broker process from offering other services to MCOs for contracting. If necessary, we suggest separation of the choice counseling and options management functions from the enrollment broker role, keeping the restriction on contracting only applicable to the entity that performs the official enrollment function. This distinction must be made to ensure that beneficiaries have the greatest possible access to experienced professionals and programs in their area.
To illustrate our point that, with appropriate firewalls in place, there is no need to deny
consumers access to the high-quality range of services that AAAs or other CBOs provide across the country, we offer these two examples.
In the CMMI-approved duals demonstration in Ohio, MyCare, includes appropriate firewalls have been put in place to eliminate conflicts of interest within agencies that provide some form of enrollment assistance but do not perform the actual enrollment and have financial
relationships with MCOs and other providers for other services. The Ohio AAAs are not considered the enrollment broker despite their key role providing other enrollment-related activities (e.g., options counseling, level-of-care assessments), as they do not actually enroll beneficiaries. This prevents a conflict of interest when the AAAs’ contract with MCOs for care management and arrange service coordination.
In Massachusetts, there are currently three models for conflict-free care coordination/case management in statute that enable AAAs and CBOs to play multiple roles, which CMS could consider.
Recommendation on Ombudsman:
Given the importance of the Aging and Disability Networks services and supports to consumers, it’s vital that any conflict of interest provisions ensure appropriate oversight, transparency and remediation, without unnecessarily reducing the beneficiaries’ access to, quality of, or options for community supports.
CMS has asked for input on whether entities that provide non-Medicaid federally financed protections of beneficiaries that include representation at hearings should be allowed to also contract with the Medicaid agency to provide choice counseling as long as appropriate firewalls are in place. n4a strongly supports allowing entities to perform both roles, with established and appropriate firewalls in place.
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Many AAAs operate under the Older Americans Act as the local Long-Term Care Ombudsman. These programs have a long history of ensuring that appropriate firewalls are in place to ensure the local Ombudsman program has adequate independence from other functions of the AAA. There is no reason to destroy this long-standing role and deny MLTSS consumers access to the choice or options counseling services provided so ably by AAAs—or invert decades of success by limiting a AAA’s role in the OAA Ombudsman program simply because it also supports Medicaid LTSS beneficiaries.
Appropriate firewalls can function effectively without limiting service provision and continuity of care for beneficiaries with a separation of supervision and duties, and billing. n4a believes CMS should rework the conflict of interest provisions to prevent unnecessary restrictions on service provision and made these exceptions exceedingly clear so as to prevent states from adopting varying interpretations of the regulation.
Training (42. C.F.R. § 438.71 (d))
Current managed LTSS programs have demonstrated the potential breakdown in coordination when the MCO or network provider does not understand the existing array of aging and disability services needed to serve the client base. We support the requirement on training MCOs and suggest CMS specify additional elements of the training, which we believe are critically important. One such area is care coordination. For care coordination to truly be effective, at a minimum, the care coordinators, case managers and MCO staff leading the interdisciplinary team need a clear understanding of the community-based supports network. AAAs, ADRCs SHIPs and other CBOs have extensive experience developing trainings and providing information about community-based services. The MCO’s LTSS training should be provided by local entities such as these that know and understand the unique aspects of LTSS and consumers in that state/community. MCOs often are not aware of the vast variety of LTSS available in the community that can be utilized by their members; there is a further lack of awareness of how those services can improve health outcomes while reducing unnecessary costs. MCOs should be trained to understand the wealth of experience and knowledge that CBOs like AAAs have in providing HCBS and the value of contracting with these entities to most effectively provide services that benefit the MCO client base. Introducing MCOs to CBOs through adequate training can initiate the development of meaningful relationships between the two entities and vastly increase service coordination.
Recommendation:
Therefore, n4a recommends that CMS strengthen the training regulation by requiring all MCO entities and network provider care coordinators and interdisciplinary team leaders to participate in the training. The training should be required of new staff and updates should be provided on an annual basis. CMS could consider using current training standards required of SHIP
counselors to apply to MCO staff.
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develop and update trainings. CMS estimates it would only take three hours to create provider education materials, plus one hour annually for those same materials to be updated (see 80 Fed. Reg. at 31182). These numbers vastly underestimate the amount of time it takes to develop training and education materials and to keep those materials updated in a continuously changing health care environment.
Care Coordination (42 C.F.R. § 438.208(b))
In response to CMS’s request for comments on including an “additional standard relating to community or social support services” including “Aging and Disability Resource Centers,
Centers for Independent Living, [and] Area Agencies on Aging” in coordination between settings with services “outside of the MCO,” we support including this additional standard. However, we are extremely concerned about some current practices and the increased possibility that MCOs will interpret this standard as an endorsement to leverage AAAs and ADRCs’ resources, support and services without any and/or appropriate compensation.
Given the limitation of federal OAA funding, AAAs cannot be expected to extend their existing services and/or re-prioritize clients, especially if waiting lists exist, to accommodate MCO clients. In fact, on June 18, 2015, the U.S. Administration for Community Living (ACL/HHS) issued guidance that specifies that OAA programs are not legally liable to provide or pay for services and that State Medicaid agencies cannot require that such programs provide or pay for services to MCO clients. While there is nothing that prohibits an individual who is eligible for (or entitled to) Medicaid services to be receiving those services and also Title III services, the State Medicaid agency cannot require that Title III programs fund (and provide) services that can be funded by Medicaid.
Recommendation:
While including this community and/or social support standard as part of a care coordination plan is essential, the expectation should not be that MCOs will receive payment for referring MLTSS beneficiaries to the Aging and Disability Networks without appropriately compensating those entities for the high-value services they offer the beneficiary. But if AAAs are expected to provide services to MCO clients, they must receive appropriate and timely payment for those services. We support adding an expectation that MCOs will include these supports in their care coordination activities.
CMS anticipates the cost of coordinating service delivery would essentially be an exchange of data and reports that would require only 10 minutes per enrollee to conduct. In reality, the time required for adequate coordination to link beneficiaries to appropriate and available HCBS services far exceeds this estimate and we believe that if CMS is going to create a new standard where the AAAs or others provide this service, there should be adequate compensation to agencies for the full time and resources required.
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Stakeholder Engagement (42 C.F.R. § 438.70)
We appreciate that CMS has recognized the importance of stakeholder engagement in the success of MLTSS and we support adding §438.70 aimed at creating and maintaining a stakeholder group to ensure that the “opinions of beneficiaries, providers, and other
stakeholders are solicited and addressed during the design, implementation and oversight of the MLTSS program.”
However, we do not believe the guidance given to states in meeting this standard is sufficient, and believe that CMS should set stronger parameters around both the composition and expectations of state stakeholder groups. It is our experience that without guidance or expectations, the stakeholder engagement process is subject to becoming perfunctory rather than functional at the state level. At a minimum, we request that CMS establish parameters for the composition of state-level stakeholder engagement groups, as well as the supports provided to those stakeholders to ensure appropriate and meaningful participation.
Recommendation:
We propose adding specificity around which types of stakeholders must be engaged. At a minimum, CMS should provide guidance identifying that the appropriate representatives from the Aging and Disability networks, including AAAs, must be as participants. Additionally, we recommend that CMS identify the value inherent in including long-standing community LTSS entities, which includes the knowledge and experience to be able to identify other critical
stakeholders in MLTSS. AAAs have decades of experience with HCBS, a deep knowledge of their communities and long-standing relationship with their participants—especially the vulnerable older adults who are most likely to need MLTSS. The Aging and Disability Networks—in particular, AAAs—must be included as part of any state-established MLTSS stakeholder engagement group.
Furthermore, we request that CMS include requirements about the supports needed to appropriately create and maintain a meaningful and effective stakeholder engagement group and MCO member advisory committee proposed in §438.110. Both states and MCOs must provide the financial and logistical support needed to ensure that state stakeholders and MCO members can appropriately participate. Furthermore, we recommend that CMS establish parameters around what meaningful engagement is. We recommend at least quarterly, public meetings and ensuring that data and content from the meeting is accessible publicly and in a timely manner.
Medical Loss Ratio and LTSS (42 C.F.R. § 438.8(e)(3))
We recognize and appreciate that CMS has proposed to implement a minimum medical loss ratio (MLR) for managed care. We believe this is an important change and support aligning this standard for managed care with Medicare and private market health plans. We support
including long-term services and supports (LTSS) activities as health care service activities in the MLR numerator.
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Specifically, we appreciate that CMS recognizes that “the definition of activities that improve health care quality is broad enough to encompass activities related to service coordination, case management, and activities that support state goals for community integration of individuals with more complex needs such as individuals using LTSS.” However, we are concerned that these activities are not separately identified in the rule. Given the significance of the inclusion of a minimum MLR for Managed Care plans, we believe it is important to specifically identify all activities that CMS intends to include in the MLR numerator and not assume that MCOs will include the cost of appropriate outreach, engagement and service coordination in the category. Furthermore, we believe there is strong justification to support that these activities improve health quality. Programs such as Community-Based Care Transitions (CCTP), Chronic Disease Self-Management Program (CDSMP) and falls prevention programs offer strong evidence of this fact. In addition, state Medicaid HCBS waiver programs, nursing home transition programs and integrated care programs are examples of initiatives consistent with the activities cited by CMS that are either evidence-based or have adopted best standards and are regularly evaluated for quality performance. These programs have been shown to reduce hospital admissions and readmissions and support care for consumers in their home, thereby reducing the overall cost of care.
Recommendation:
We recommend that CMS specify that “activities related to service coordination, case
management, and activities supporting state goals for community integration of individuals with more complex needs such as individuals using LTSS” can improve health quality. Adding
additional clarification around this expectation would ensure that those activities fall under the definition of “medically necessary” and be included in the MLR numerator. We believe that current MCO-state-CBO contracts address care coordination, case management and LTSS activities as part of the numerator for existing MLR requirements, and strongly believe it would be prudent for CMS to add them to the list of activities that improve health quality in the final rule.
Network Accessibility (42 C.F.R. § 438.10) and Adequacy (42 C.F.R. §
438.68)
There are unique challenges inherent in delivering effective and adequate health care and community supports to older adults and people with disabilities who have functional and cognitive limitations. We appreciate the efforts of CMS to recognize and address these challenges in proposing network accessibility and adequacy standards for MLTSS.
Requirements outlining 1) how states and MCOs disseminate beneficiary information (e.g., enrollee handbooks, provider directories, appeal and grievance notices and other critical communications); 2) what must be included in that information; and 3) what ensures an adequate provider network are important considerations in an expanding managed care landscape. There are unique challenges in ensuring that information and services are adequate and accessible—particularly in MLTSS situations, where beneficiary challenges may require
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additional accommodations to ensure that both MCO information and provider services are adequate and accessible.
While health care professionals and MCOs have been subject to federal and state disability laws for decades, we are concerned that the detailed accessibility requirements proposed in the rule will be onerous for some providers, and we strongly believe that CMS should ensure that MCOs leverage available networks and infrastructure, such as the Aging and Disability Networks— including AAAs—that have been providing information and LTSS to vulnerable populations with unique challenges for four decades and that have a working knowledge of the needs of individual communities.
Recommendation:
We recommend that CMS provide more clarity around the providers included in network adequacy assessment. The “expectation” that states will “consider all LTSS delivered through managed care” in developing standards is too vague to ensure that each state is developing adequate standards to ensure access to the broad range of critical LTSS necessary. Furthermore, we recommend that CMS require that MCOs and states partner with and appropriately
compensate HCBS and LTSS agencies and entities that have a long-standing history of developing and maintaining information and resources about available health care and LTSS providers and the accessibility of those providers.
These agencies include, but are not limited to, AAAs, ADRCs, CILs and other community-based organizations that have developed vetted, accessible information and services to appropriately meet MLTSS beneficiaries’ health care and community integration needs. Furthermore, we recommend that existing community-based LTSS entities be included as endorsed partners not only in developing and maintaining information about network accessibility and adequacy, but also leveraged in assessing provider accessibility. Currently, AAAs and ADRCs maintain
information about provider accessibility, and states and MCOs should recognize and leverage the existing infrastructure designed to develop, maintain and evaluate this information about LTSS providers in the community.
Additionally, it is important that MCOs ensure this information is accessible not only to MLTSS beneficiaries but to their caregivers as well. Enrollees such as older adults and people with disabilities who have functional and cognitive limitations often have family and friends who have spent countless hours on overcoming barriers and/or finding services available to perform both health and personal assistance tasks. Existing community-based resources, such as AAAs and ADRCs, have developed resources and services to meet the information and accessibility requirements of caregivers and MCOs must consider the needs of those individuals who will play an instrumental part in ensuring that MLTSS services are successfully utilized. Engaging
existing networks and infrastructure—and appropriately compensating them for their expertise and value—will ensure that states and MCOs are able to fully leverage and support caregivers as a critical partner in health care and community integration.
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Definition of Long-Term Services and Supports (42 C.F.R. § 438.2)
We appreciate and support CMS’s proposal to add a definition of LTSS to these regulations. However, we are concerned that the definition is not specific enough to adequately address the full range of LTSS. Greater clarity of LTSS would also enable consistency across state programs, resulting in less confusion and greater alignment with existing CMS regulation and guidance. Recommendation:We recommend that CMS add more clarity to adequately address the value that the broad range of LTSS services provide in ensuring the health and well-being of MLTSS beneficiaries and the critical role that LTSS providers play in offering those services.
In order to add additional clarity to the definition of LTSS and promote consistency among states, we would recommend including examples of services that some MCOs may consider to be non–medically necessary, but that are in fact critical to ensuring that MLTSS beneficiaries can live and work successfully in their communities. These examples, such as non-medical
transportation, home-delivered meals and medication management should be qualified by the statement, “including but not limited to.” We appreciate that the definition is intentionally broad so as not to exclude necessary services, but do believe that greater clarity through providing examples of necessary LTSS would improve the effectiveness of the regulation.
Conclusion
As MLTSS becomes more firmly established in many states and with more states planning to implement MLTSS programs in the near term, there are concerns that the role of AAAs and other CBOs as the traditional HCBS providers will be lost to a more medicalized system, which will be to the detriment of clients who have been depending on these services for decades. At the same time, there is uncertainty about whether MCOs new to this population group have the experience or geographic scope to fully and properly assess enrollees, provide case management, and provide direct services to vulnerable seniors.
There is opportunity for CMS to strengthen MLTSS programs by considering and capitalizing on the traditional HCBS infrastructure and supporting the inclusion of AAAs and other CBOs along with MCOs. As trusted resources with a long history in the community, AAAs and other CBOs have important knowledge of the targeted population and skill sets that can complement those of MCOs and enhance a state’s MLTSS program, and subsequently, beneficiary health outcomes.
Sincerely,
Sandy Markwood Chief Executive Officer
