May 1, 2017
New Policy Handbook for Long-Term Care Home Services
AHCA has adopted as a rule a new Policy that sets out requirements for home and community-based services under the Medicaid Long-Term Care Program. The Policy describes covered services, and most importantly, how enrollees should be assessed to determine total service needs. The goal of the Program is clearly stated:
Under the Statewide Medicaid Managed Care Long-Term Care (LTC) Program, managed care plans (LTC plans) are required to provide an array of home and community-based services that enable enrollees to live in the community and avoid institutionalization.
To meet this requirement, LTC plans must do a separate assessment that, at a minimum, includes consideration of caregiver ability, availability and willingness to provide care. That assessment also must set out the amount of time that the enrollee can safely be left alone.
The LTC Policy also makes some changes to the definition of “medical necessity, ” particularly for those services that do not have a clear “medical” component, like Companion, Respite, or Homemaker. These services should be reviewed, at least in part, based on the person-centered goals for living in the setting of the enrollee’s choice.
Whether you are an enrollee, a caregiver, or provider, please familiarize yourself with the LTC Policy. It should become the new standard for decisions on services and challenges in an appeal or fair hearing.
March 1, 2017
Mandatory Managed Care Appeals and AHCA Fair Hearings Start March 1st
March 1st marks the start of the new federal requirement that Medicaid Managed Care service decisions must be appealed through the managed care plan before a fair hearing is requested. This means that when you get a notice of adverse benefit determination, you no longer have the option of going straight to a fair hearing. Now, you must request another review of the decision by the managed care plan. Federal law requires that this second decision must be made by a different person than the person who made the original decision, and not be supervised by that person, as well.
If you get an unfavorable appeal decision, you may request a fair hearing. Beginning March 1st, those requests should be made through the new AHCA Office of Fair Hearings. For decisions made prior to March 1st, DCF Office of Appeal Hearings will continue to have jurisdiction.
Here’s the new contact information for AHCA Fair Hearings:
Medicaid Hearing Unit
P.O. Box 60127
Ft. Myers, FL 33906
Telephone: (877) 254-1055 (toll-free)
Fax: (239) 338-2642
For any service decision that is a reduction or termination of current services, remember that you can ask for those services to continue pending the appeal AND the fair hearing if you file your requests within 10 days of the date on the initial notice and the notice denying the appeal.
January 1, 2017
Big Changes Coming to Florida’s Medicaid Long-Term Care Program
After more than a year of litigation, the Florida Agency for Health Care Administration (AHCA) has settled with four Plaintiffs who challenged AHCA’s management of the Medicaid Long-Term Care (LTC) Program. As of December 1, 2016, this Program had more than 94,000 enrollees, all of whom are elderly or disabled. About half of the enrollees are in nursing homes, while the remaining half, like all of the Plaintiffs, have chosen to receive care in their homes or community rather than enter a nursing home. The Plaintiffs were represented by the Law Office of Nancy E. Wright (Lead Counsel), Disability Rights Florida, and Southern Legal Counsel.
Under the Settlement Agreement, health plans that administer Medicaid long-term care services will be “required to provide an array of home and community-based services that enable enrollees to live in the community and to avoid institutionalization.”
The Settlement Agreement also states, among other things, that AHCA will
- Adopt rules that set out requirements for coverage of long-term care services;
- Require a new assessment procedure that takes into account the availability, willingness and ability of voluntary caregivers;
- Amend their contract with health plans to assure compliance with these rules;
- Require changes to health plan member handbooks to clarify enrollee rights and how to file consumer complaints;
- Train (or retrain) health plans, hearing officers, AHCA staff and others on the new requirements;
- Monitor case managers on how assessments are being done; and
- Use enrollee surveys that ask about sufficiency of services.
The agreement impacts all six health plans now operating in Florida to provide Medicaid services through the Long-Term Care Program: Coventry/Aetna, Humana, Sunshine Health, Molina, United Healthcare, and Amerigroup.
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December 31, 2015
UPDATE on Long-Term Managed Care Lawsuit
On December 28th, A United States District Judge denied a motion by the Agency for Health Care Administration (AHCA) to dismiss the federal claim filed against them alleging violations of the Americans with Disabilities Act (ADA). For a more detailed explanation of the case (Parrales v Dudek), see the article below.
Specifically, the Court ruled that plaintiffs have stated a claim under the ADA that, due to AHCA’s ineffective implementation and oversight of the LTC Waiver Program, plaintiffs would have to enter a nursing home in order to receive the Medicaid benefits to which they are entitled. See related articles by co-counsels, Southern Legal Counsel and Disability Rights Florida.
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MEDICAID BENEFICIARIES SUE OVER IMPLEMENTATION OF MEDICAID LONG-TERM MANAGED CARE PROGRAM:
Parrales v. Dudek, Case No. 4:15-cv-424-RH-CAS
On August 27th, a lawsuit was filed against the Agency for Health Care Administration (AHCA) on behalf of five individuals enrolled in Florida’s new Statewide Medicaid Managed Care Long-term Care (LTC) Program. All five Plaintiffs are elderly, have a disability – or both – with health care needs that would otherwise require care in a nursing home. Instead, each client has enrolled in the LTC Program to receive similar levels of care at home.
Since enrolling in Florida’s Medicaid Managed Care Program, the Plaintiffs have discovered that there are few standards outlining the types and amounts of services they can receive while enrolled in the program. Even though the Plaintiffs have been enrolled through different managed care organizations, their experiences have been the same: confusion about which services are available and in what amounts, care plans that are developed without their participation or understanding, and decisions on services that ignore critical needs, like caregiver availability or ability to access the community. As a result, the Plaintiffs have been placed at a substantial risk of institutionalization, undermining the purpose of the long-term care program itself.
Nancy E. Wright, Esq., and Disability Rights Florida, Florida’s federally mandated protection and advocacy organization for persons with disabilities, represent the Plaintiffs, joined by Southern Legal Counsel. The suit, filed in the U.S. District court for the Northern District of Florida, alleges that AHCA has violated the Americans with Disabilities Act by failing to adequately administer the program and set standards to ensure enrollees such as Plaintiffs will receive sufficient home and community-based services to ensure their health and safety.
The experience of Plaintiff Adriana Parrales illustrates the deficiencies in the administration of this program. An intelligent young woman with a rare genetic disorder, Ms. Parrales was subjected to arbitrary reductions in services when she transitioned into managed care. Ms. Parrales was receiving 67 hours per week of home care services when she was required to enroll in a managed care organization. Despite no change in condition, one MCO decided that she needed only 7 hours a week of home care, while another arrived at 30 hours a week. After a hospitalization that left Ms. Parrales on a ventilator, her mother (and sole caregiver) was then told that private duty nursing and respiratory therapy would not be offered, leaving the mother to provide around-the-clock care to her daughter for months.
Like Ms. Parrales, each of the Plaintiffs in the lawsuit have also experienced significant inconsistency in attempts to assess their service needs.
Plaintiffs allege that AHCA has not established or enforced standards for this complicated program that address the total care needs of each client and the overarching goal of any Medicaid home and community-based service program: to prevent or delay entry into a nursing home or other institutional facility.
Ms. Wright stated, “When AHCA hasn’t made clear the requirements of the program, every aspect of the program suffers, from care-planning to decision-making. This leaves each Plaintiff at continual risk of institutionalization, in violation of the Americans with Disabilities Act.” Bryan Funk, an attorney with Disability Rights Florida, added, “The goal of this Medicaid program is to allow individuals with disabilities to live a life with dignity in their community, surrounded by their friends and family. We want to see that goal achieved.”
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September 3, 2015
iBudget Handbook Finalized
Effective today (September 3rd), an iBudget Handbook has been adopted as a rule. A copy of the Handbook can be accessed here. This Handbook now replaces the Developmental Disabilities Coverage and Limitations Handbook that was dated November 2010.
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August 19, 2015
Legislative Amendment to Guardianship Law – New Schedule for Filing Annual Reports
In 2015 the Florida Legislature passed amendments to Chapter 744 , Florida Statutes, which governs Guardianship. Among the amendments was a change regarding when Annual Reports need to be filed. In the past such reports were required to be filed “within 90 days after” the expiration of the previous plan. Now annual reports are required to be filed “at least 60 days, but no more than 90 days, before” the expiration of the previous plan.
For example, if your current plan (whether an initial plan or annual plan) is set to expire on October 31, 2015, then your next annual plan must be filed no later than September 1st, but no earlier than August 2nd.
If you have uncertainty about this you can call the Clerk of the Court with jurisdiction over your guardianship case.
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June 25, 2015
U.S. Supreme Court Upholds Affordable Care Act (again)
In an opinion issued today in the King v. Burwell case, the Supreme Court held that the tax credits and subsidies of the ACA are available under both state-run insurance exchanges and federally-run insurance exchanges. Opponents of the ACA had argued that the law did not allow for subsidy payments if an individual purchased insurance from a federally-run insurance exchange. Writing for the Court in a 6-3 opinion, Chief Justice Roberts stated:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
This ruling is especially important to citizens of Florida, whose leaders chose not to operate a state exchange but to use the federal Marketplace (healthcare.gov). Florida has more residents impacted by this ruling than any other state. According to HealthNews Florida: “An estimated 94% of the 1.4 million Floridians who buy insurance this way receive some sort of financial subsidy to help pay for the insurance premium.” With the Court’s decision, those individuals are no longer at risk of losing their subsidies for premium payments.
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June 24, 2015
Child Welfare and APD Wait List Priority
Senate Bill 2502A, Section 20, which is effective July 1st, sets out how children in the dependency system should be prioritized on APD’s wait list. This Bill places into “Category 2” (right behind crisis enrollment, which is “Category 1”) any child with an open dependency case who is:
a. Transitioning into adoption, reunification with family members, permanent placement with a relative, or guardianship with a non-relative. This takes effect when the permanency is finalized.
b. Between 19 and 22 and needs both APD services and extended foster care services, or needs APD services and withdrew consent for extended foster care. For these individuals, the Bill sets out which agency (APD or DCF) is responsible for certain services.
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iBudget Funding Allocation Pending New Final Rules
SB 2502A, Section 21, also addressed the current iBudget conundrum: the lack of adopted rules and, therefore, no adopted “algorithm and methodology” to calculate an individual’s iBudget funding amount. The Bill first states that pending adoption of a new algorithm in a final rule, the iBudget funding amount for all existing clients is their funding allocation as of July 1, 2015. For newly enrolled clients, APD is to use “the same allocation algorithm and methodology used the iBudgets in effect on July 1, 2015.”
This Bill provides that when the new rule is adopted, “a client’s new iBudget shall be determined based on the new allocation algorithm and methodology and shall take effect as of the client’s next support plan update.” It is unclear what is meant by “new iBudget” and whether or not this provision will impact existing clients, or only those enrolled after July 1, 2015 and before adoption of a new rule.
Finally, the Bill clarifies that any funding amount determined by an algorithm may be increased if the statutory criteria for “extraordinary needs” or “supplemental funds” is met. See §393.0662(1)(b), Florida Statutes. Also, transportation to and from APD-funded adult day training or supported employment can be provided if it cannot be accommodated within the iBudget amount with affecting the client’s health and safety and other transportation options are not available.
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May 28, 2015
Personal Information of Individuals on the DD Waiver Waitlist May Have Been Released
According to the Miami Herald, Florida released the names, dates of birth and SSNs of 13,000 people who were on the DD waitlist in 2003, in response to a request from former Governor Jeb Bush as part of his exploration to run for president. This information was then posted, without redaction, to his website. If you or a loved one are on the waitlist, you may contact the FL Department of State at (850) 245-6068 to see if private information has been compromised. The state is offering free credit monitoring services to those affected by this breach.
Click here to see the Miami Herald article.
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April 6, 2015
iBudget Rules, Algorithm and Handbook in Rule-making Process
iBudget Rules. APD is working on a new set of iBudget rules that would set out how funding decisions will be made, both for new enrollees and for anyone needing additional funds for services and supports. This process began with a notice and draft proposed rules on December 8, 2014. Since then, APD has held several public hearings and has another hearing scheduled for May 7, 2015. Advocates are working with APD to try to make this version of the iBudget rules more transparent, more responsive to the needs of consumers, and more flexible.
Algorithm. The statutory requirement for iBudget requires a two-step process for funding: (1) the use of an “algorithm” or statistical formula devised to give a sophisticated guess on the funding amount needed, based on certain selected variables (like age, or living situation), and (2) a determination if the consumer has “extraordinary needs” that would require more funding than the algorithm would allow. APD is in the process of revising the algorithm that was used when the iBudget program was rolled out. Workshops have been ongoing, and are available through phone access. It is expected that any newly devised algorithm will become part of the new iBudget rule.
To follow the status of rule-making and read any new drafts, check on APD’s website here.
iBudget Handbook. Medicaid programs typically publish extensive “Coverage and Limitations Handbooks” to describe and explain the different services that are offered, the requirements to receive those services, and the responsibilities of the provider of services. These Handbooks are published through the Agency for Health Care Administration (AHCA) and must be adopted as a rule. The iBudget program has operated without an iBudget Handbook since its inception. Instead, APD has been using the November 2010 Handbook that applied to the now defunct “Tier” Waiver Program, and it has not been a good fit. Several iBudget Handbook drafts were published in 2011 and 2012, but none was ever proposed for adoption. A draft was published by AHCA in April of 2014, but withdrawn after it was challenged. Recently, a new draft iBudget Handbook was proposed for adoption, with a public hearing scheduled for April 15, 2015. Check here to see a copy of the proposed iBudget Handbook.
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December 5, 2014
APD Issues Dismissal of Agency Action in Pending iBudget Fair Hearings
APD has started filing a Dismissal of Agency Action in every pending iBudget fair hearing. This means, in essence, that APD is “taking back” the original notice reducing the total funding allocation. Many people never experienced the reduction because their funding level has been continued pending the hearing. In January 2014, others who had received a reduction had their funding level reinstated because of the federal case challenging the iBudget notices (Moreland v. Palmer). APD admits in the Dismissal letter that under Moreland, APD cannot reduce an iBudget allocation without sending out an adequate notice and giving an opportunity to be heard.
APD Workshop on draft iBudget Rules scheduled for November 20th
With the current iBudget rules having been invalidated, APD has drafted a new set of rules and scheduled a workshop for public comment on Thursday, November 20th at 9:00am at the APD headquarters in Tallahassee. To ask for a copy of the draft rules, email the APD Agency Clerk at firstname.lastname@example.org. As of today’s date, the draft rules had not been posted on APD’s website.
What do these draft rules do? Most important, they set out the mathematical formula (or “algorithm”) that APD will use as the primary tool to determine an individual’s iBudget funding allocation. In this draft, the formula is the same as the one that was used back in 2012 when the original iBudget notices were issued. The draft also sets out APD’s requirements for approving any increases to the funding amount established by the algorithm.
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August 6, 2014
G.B. v. APD Mandate Issued
The First District Court of Appeal’s ruling in G.B. v. APD has become final. Please see article below on what the Court said and how it might impact people on the iBudget Waiver.
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July 31, 2014
Court Finds APD’s iBudget Rules are Invalid
On July 21, 2014, the First District Court of Appeal issued an opinion finding APD’s iBudget rules to be invalid. (G.B. v. APD, 1D13-4903) Given the far-reaching effect of this decision, it is important to understand how this may impact consumers.
Why were the rules declared invalid?
An agency can’t make rules that exceed the authority given by the legislature. In this case, the Court compared the iBudget rules to the iBudget statute (§393.0662) and found that the rules “directly conflict with and contravene the Legislature’s clear language.” Two reasons were given, in particular:
- The statute requires that a person’s funding allocation must be based on a two-step process: (1) a statistically valid algorithm and (2) a determination as to whether the client has “extraordinary needs” that would justify funding beyond the algorithm amount. Under the rules, APD had several modifications, including the interim “sum of services” step.
- The statute does not authorize APD to decrease a person’s funding below the algorithm amount. Under the rules, this was true for each person who had an algorithm amount that was higher than the current cost plan. This could apply to more than half of APD’s consumers.
How does this impact current funding for consumers?
As part of a settlement of a separate federal lawsuit, Moreland v. Palmer (4:12-cv-585), no consumer should be currently experiencing a reduction caused by the iBudget funding allocation. This is because APD agreed to reinstate funding levels for consumers who didn’t ask for a hearing. Also, anyone who requested a hearing should continue to receive the pre-iBudget level of service, unless there’s been an approval in the interim for a higher level of funding due to changed circumstances.
About 60% of consumers did not receive a notice of reduction but MAY have had an algorithm amount that was higher than their current cost plan. Those consumers did not receive a notice of reduction, but APD did not notify them of the higher algorithm amount, either. The G.B. decision seems to require APD to fund the higher amount. It is not clear how APD intends to handle this, particularly since it seems that the algorithm itself must be revised.
What should consumers with pending hearing requests do?
Right now, nothing. Do not “dismiss” or “withdraw” your hearing request, which is the same as saying you no longer want to challenge APD’s decision to reduce your funding.
APD should issue orders agreeing not to reduce a consumer’s funding, based on the G.B. decision, or rescind the notices seeking to reduce cost plans.
Can APD just issue a new notice and go ahead with reductions?
APD cannot base its decisions on invalid rules. The agency will likely need to develop new rules – and issue new notices, with a new opportunity for hearing, based on new rules.
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February 3, 2014
Confusion Regarding Recent Letter from AHCA – DD Waiver Participants
NOT Required to Elect Managed Care Organization
The State of Florida is transitioning many Medicaid recipients to managed care. The transition is taking place in two phases: the first phase involves Long-Term Care (nursing homes and SOME home and community-based services waivers). The second phase involves Medicaid Medical Assistance (hospitalization, physician care and other medical benefits.)
By statute, people who are enrolled in the DD Waiver are EXEMPT* from mandatory enrollment in managed care. This is true for both Long-Term Care and Medical Assistance.
Some individuals and/or legal representatives may have received a form letter from AHCA that led them to believe that they will have to select a Managed Care Organization or the State will do it for them. This does NOT apply to people who are on the DD Waiver. Although persons on the DD Waiver can voluntarily choose to participate in managed care, if they do not choose to participate, they will stay on the APD DD Waiver and continue with fee-for-service Medicaid.
If you received a letter from AHCA and only enrolled in managed care because you thought you had no other option, you can use the link below to submit a Complaint to AHCA. Click on “Report a Complaint” at www.ahca.myflorida.com/Medicaid/statewide_mc/index.shtml.
*Other waivers that are exempt from mandatory managed care are Traumatic Brain and Spinal Cord Injury, Adult Cystic Fibrosis, Model Waiver, Familial Dysautonomia, Project AIDS Care and PACE.
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October 23, 2013
iBudget Notice Class Action Lawsuit Settlement
Moreland, et al, v. APD, Case No 4:12-CV-585-MW/CAS
In November of 2012, Southern Legal Counsel and I jointly filed a federal class action lawsuit challenging the iBudget notices that APD sent to consumers to advise them of intended reductions to their annual funding. We argued that these notices violated both the Due Process Clause of the US Constitution and the Medicaid Act because they did not give individualized information on how APD arrived at the reduced funding amount. As a result of this lack of information, consumers could not tell whether APD had erred in the funding decision. In an order granting a preliminary injunction for the named Plaintiffs, Judge Walker agreed with us:
Plaintiffs were never provided the reasons for their reductions, let alone in writing, and were never provided the necessary information and tools used by APD in calculating their budget allocations. Without such information, Plaintiffs were unable to conduct a meaningful review of APD’s decisions, were uninformed when having to determine whether to request a hearing and risk financial liability if unsuccessful, and are incapable of properly preparing for their hearings. Preliminary Injunction Order, p. 15.
Subsequent to Judge Walker’s order, APD and the Plaintiffs entered a Settlement Agreement, which is currently pending final court approval for the class. Anyone who got an iBudget notice of reduction should receive a letter telling them about the settlement and giving an opportunity to object. The hearing on final approval is scheduled for November 13, 2013. (The court has already preliminarily approved the Settlement Agreement.) Below is a brief summary of the terms of the agreement. Please be aware that this case only involves a challenge to APD’s notice process, not to the iBudget statute or rules.
1. Reinstatement: Under the Agreement, anyone who has suffered a reduction in funding due to iBudget will have their funding restored within 60 days of final court approval of the settlement. For anyone who is receiving continued services pending a hearing request, that will not change. APD cannot make further reductions based on transition to iBudget until clients get an Amended Notice and a final decision is made after a new opportunity for hearing.
2. New Notices: APD will send out Amended Notices with individualized information on the iBudget allocation decision for each client. The new notice will set out the client’s:
a. Algorithm amount and the weights and scores used;
b. The specific services and annualized amounts that were added together to arrive at an alternative funding amount (which will be used if it is higher than the algorithm amount); and
c. Specific reasons why a reduction does not seriously impact the health and safety of the client, caregiver, or public.
3. Notice to Legal Representatives in Primary Language: APD has also agreed to send the amended notices to the clients and legal representatives (parents of minors, guardians, guardian advocates, durable power of attorney, health care surrogates) and they are revising their data systems to include these fields. They will also send the notice in the primary language of the client and make this part of their data system as well.
4. Clarification of “Recovery” Threat: The notices will clarify that even if APD wins at a hearing, it cannot seek recovery from family or legal guardians, or take away from a client’s medically necessary services.
5. APD has agreed to pay Plaintiffs’ attorneys’ fees and costs.
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Cost Plan Freeze Lawsuit Settlement
Wheaton, et al v. Palmer, Case No. 4:13-cv-00179-MW-CAS
On March 24, 2011, APD implemented a “cost plan freeze” in an effort to reduce their budget deficit. Under the freeze, any requests for an increase in cost plan funding would be approved only upon a showing that the client was “in crisis.” APD applied the rule for crisis enrollment for people on the waiting list to individuals already enrolled but seeking new or additional services. That rule set out three levels of “crises”: homelessness, extreme danger to self or others due to behavioral problems, and caregiver unable to provide care.
Co-counseling with Disability Rights Florida, on April 4, 2013, we filed a federal lawsuit on behalf of six individuals and Disability Rights Florida in its role as the protection and advocacy organization for individuals with disabilities. We argued that under the cost plan freeze policy, APD was not providing medical assistance with “reasonable promptness,” as required by the Medicaid Act, because each of the individual Plaintiffs had service requests pending with APD for over six months. (One individual went without home health services for twenty-six months from the date his request for services was submitted.) These individuals were also subjected to repeated requests for additional documentation, requirements to “resubmit” a reduced request or a new request with more current data, and other administrative hurdles unrelated to need. We also argued that the standard for approval was too restrictive and discriminated based on a client’s circumstance or condition.
On October 10, 2013, APD and the Plaintiffs entered into a Settlement Agreement that will require substantial changes to the review process for service requests. In summary, APD has agreed to the following:
1. APD Timeline for Response: APD must review all requests for an increase in funding under the new timelines set out in Rule 65G-4.0211(6), which require APD to either approve, deny or ask for additional documentation within 30 days from receipt. If additional documents are requested, APD must make its decision within 60 days of initial receipt of the request.
2. Automatic Approval Provision: If APD fails to issue a decision within 60 days, the support coordinator or client may notify APD in writing of the delay. If there is still no decision within 20 days, the request is deemed automatically approved.
3. Emergency Funding Available: Regional Offices have the authority to provide emergency funding for services, if appropriate, even while a request for services is pending review.
4. New Criteria for Review: New requests for services will be reviewed under the standards set out in the iBudget statute (§393.0662(1)(b)) and iBudget rule, rather than the “crisis enrollment criteria” used under the cost plan freeze. This criteria applies to any request for “supplemental funding,” which involves any request that would require an increase to the total annual iBudget allocation.
5. Changes to Procedures for Submission and Tracking: Each APD Region will have a designated email account, published on the APD website, for receipt of service requests. Eventually, this may change to a statewide electronic system. APD is also developing a new tracking system to follow the progress of every request. Disability Rights Florida is providing input to the system and will also be monitoring service requests for a full year.
6. APD agreed to pay costs and attorney’s fees.