MLTC Policy 16.06

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Office of Health Insurance Programs

Division of Long Term Care

MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services

Date of Issuance: November 17, 2016

On December 30, 2015, the Department notified all managed long term care (“MLTC”) plans of recent changes to the Department’s regulations governing personal care services (“PCS”) and consumer directed personal assistance (“CDPAS”), including revised regulatory provisions governing notices that deny PCS or CDPAS or propose to reduce or discontinue PCS or CDPAS. (See MLTC Policy 15.09 at http://www.health.ny.gov/health_care/medicaid/redesign/mltc_policy_15-09.htm.).

The purpose of this directive is to provide further guidance to MLTC plans concerning appropriate reasons and notice language to be used when proposing to reduce or discontinue PCS or CDPAS. In particular, it addresses notices that propose to reduce or discontinue PCS or CDPAS for either of the following reasons: a change in the enrollee’s medical or mental condition or social circumstances; or a mistake that occurred in the previous authorization or reauthorization.

A MLTC plan may not reduce or discontinue an enrollee’s PCS or CDPAS unless there is a legitimate reason for doing so, such as one of the reasons set forth in 18 NYCRR §§ 505.14(b)(5)(v)(c)(2)(i) through (vi), for PCS, and 18 NYCRR §§ 505.28(h)(5)(ii)(a) through (f), for CDPAS. Two such examples are discussed in greater detail below. The MLTC plan must advise the enrollee of the specific reason for the proposed action. A plan cannot reduce or discontinue services without considering the facts of the individual enrollee’s circumstances and thus cannot reduce services as part of an “across-the-board” action that does not consider each individual enrollee’s particular circumstances and need for assistance.

The general purpose of these requirements is to assure that the plan’s notice accurately advises the enrollee, in plain comprehensible language, what the plan is proposing to change with regard to the enrollee’s PCS or CDPAS and why the plan is proposing to make that change. The more specificity the plan’s notice provides with regard to the specific change in the enrollee’s services, the reason for the change, and why the prior services are no longer needed, the better able the plan will be to defend its proposed reduction or discontinuance at any fair hearing, at which the plan bears the burden of proof to support its proposed action (i.e. the plan must establish that its proposed reduction or discontinuance is correct).

A. Changes in Enrollee's Medical or Mental Condition or Social Circumstances

In such a case, the Plan’s notice must indicate:

  • The enrollee’s medical or mental condition or social circumstances have changed and the plan determines that the services provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours. If the reason for the proposed reduction or discontinuance is a change in one or more such conditions or circumstances, the plan’s notice must not simply recite the underlined language in the previous sentence, which would impermissibly make it the enrollee’s responsibility to figure out which particular condition or circumstance had changed. Such boilerplate recitations are inadequate. Instead, the plan’s notice must:
    1. state the enrollee’s particular condition or circumstance - whether medical condition, mental condition, or social circumstance – that has changed since the last assessment or authorization;
    2. identify the specific change that has occurred in that particular medical or mental condition or social circumstance since the last assessment or authorization; and
    3. state why the services should be reduced or discontinued as a result of that change in the enrollee’s medical or mental condition or social circumstances.

      4. Example of a change in medical condition: The plan authorized an enrollee for personal care services. At the time of the assessment, the enrollee was recuperating from hip replacement surgery. As the enrollee recovered from her surgery, her medical condition improved. Specifically, the enrollee’s hip has now healed sufficiently that she is now able to walk 30 feet alone. The physician’s order documented this improvement in her medical condition. Due to the improvement in her medical condition, she no longer needs the previously authorized level and amount of assistance with personal care services. Accordingly, the enrollee no longer needs help ambulating inside her apartment.

      Example of a change in social circumstances: The plan had authorized an enrollee for Level II personal care services, support with dressing. At the time of the initial authorization, the enrollee lived in her longtime residence with no family or friends who could help dress and undress. Her sister then moved next door and agreed to help with this task. Due to the change in the enrollee’s social supports, she no longer needs the previously authorized amount of assistance for dressing and undressing.

B. Mistake

In such a case, the Plan’s notice must indicate:

  • A mistake occurred in the previous PCS or CDPAS authorization or reauthorization. The plan’s notice must identify the specific mistake that occurred in the previous assessment or reauthorization and explain why the prior services are not needed as a result of the mistake.

    Plans must adhere to the following guidelines when proposing to reduce or discontinue services based on a mistake that occurred in the previous assessment or reassessment:

    1. A mistake in a prior authorization or reauthorization is a material error that occurred when the prior authorization was made. An error is a material error when it affected the PCS or CDPAS that were authorized at that time.

      2. Example of a mistake: The plan authorized, among other services, assistance with the Level I task of doing the enrollee’s laundry. This authorization, however, was based on an erroneous understanding that the enrollee’s apartment building did not have laundry facilities and that the aide would need to go off-site to do the enrollee’s laundry. During a subsequent assessment, it was determined that the aide did, in fact, have access to a washer and dryer in the basement of the enrollee’s apartment building. The plan thus proposed to reduce the time needed for the aide to perform the enrollee’s laundry to correct the prior mistake and reflect that less time is needed to complete this task than was previously thought.

    2. This particular reason for reducing or discontinuing services is intended to allow an MLTC to rectify a material error made in a previous authorization for a particular enrollee. It must not be expanded beyond that narrow application or otherwise used as a reason to reduce services across-the-board or reduce services for a particular enrollee without a legitimate reason as described in this policy directive. For example:
      • A MLTC plan must not implement a new task-based assessment tool that contains time or frequency guidelines for tasks that are lower than the time or frequency guidelines that were contained in the plan’s previous task-based assessment tool, and then reduce services to an individual or across-the-board on the basis that a “mistake” occurred in the previous authorization.
      • A MLTC plan must not reduce services when implementing a new task-based assessment tool, if those services were properly contained in the former task-based assessment tool, on the basis that a “mistake” occurred in the previous authorization.
    3. A prior authorization for PCS or CDPAS is not a mistake if it was based on the UAS-NY assessment that was conducted at that time but, based on the subsequent UAS-NY assessment, the enrollee is determined to need fewer hours of PCS or CDPAS than were previously authorized.

      4. In such a case, a subsequent assessment might support the plan’s determination to reduce or discontinue services for one of the reasons enumerated in NYCRR §§ 505.14(b)(5)(v)(c)(2)(i)-(vi) for PCS and 18 NYCRR §§ 505.28(h)(5)(ii)(a)-(f) for CDPAS. For example:

      • There has been an improvement in the enrollee’s medical condition since the prior authorization. In such a case, the MLTC plan’s notice must identify the specific improvement in the enrollee’s medical condition and explain why the prior services should be reduced as a result of that change, as set forth above.

Plans are reminded that enrollees are entitled to timely (i.e. 10 day prior notice) and adequate notice whenever plans propose to reduce or discontinue PCS or CDPAS or other services. All partially capitated plans must also use the State-mandated fair hearing notices. In additions, plans must comply promptly with all aid-continuing directives issued by the NYS Office of Temporary and Disability Assistance.