States must have in effect a transition of care policy to ensure continued access to services during a transition from Fee for Service Medicaid (FFS) to a Managed Care plan or transition from one Managed care plan to another “when an enrollee, in the absence of continued services, would suffer serious detriment to their health or be at risk of hospitalization or institutionalization.” This is required by federal regulations as amended in 2016. 42 C.F.R. § 438.62, and is incorporated in the CMS Special Terms & Conditions of the waiver that authorizes the managed care program in NYS (Web) – (PDF) (Oct. 2021) (Article V(4)(g) at pp. 32-33).
The transition policy must ensure that the “enrollee has access to services consistent with the access they previously had, and is permitted to retain their current provider for a period of time if that provider is not in the [plan’s] network.” 42 C.F.R. § 438.62 . The transition policy also must ensure that the enrollee is referred to in-network providers. The new plan and providers must also have access to the enrollee’s previous medical records and plans of care.
Before the federal regulation was enacted in 2016, NY Public Health Law required limited transition rights. Plans have long been required to provide access to a new enrollee’s providers who are out of network, under limited conditions. See NY Public Health Law § 4403, subd. 6(f). This was incorporated in a DOH transitional care policy which clarifies that continuity of care includes certified home health agency care, for new enrollees who are receiving an ongoing course of treatment upon enrollment.
Transition Policy Must be Publicly Available
- The 2016 federal regulations require, “State must make its transition of care policy publicly available and provide instructions to enrollees and potential enrollees on how to access continued services upon transition. At a minimum, the transition of care policy must be described in the quality strategy, under § 438.340, and explained to individuals in the materials to enrollees and potential enrollees, in accordance with § 438.10.” 42 C.F.R. § 438.62(b)(3).
- It is unclear whether NYS has fully complied with this requirement. The state Public Health Law transitional care section cited above falls short of fully complying with the federal regulation. The State has issued policies limited to certain situations, such as when an MLTC plan closes – see MLTC Policy 17.02: MLTC Plan Transition Process – MLTC Market Alteration. However, these policies fall short of fully protecting enrollees. See more about MLTC transition rights, with harmful changes effective Nov. 2021, here.
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.