When an MLTC Plan Closes – What are the Members’ Rights?

Now that enrollment in Managed Long Term Care (MLTC) plans has been mandatory for 5 years for most adult “dual eligibles” (people with Medicaid and Medicare) who need Medicaid home care, some of the original MLTC plans have either closed altogether, or have reduced their service area, no longer covering certain counties or New York City.

What happens to a plan’s members when a plan closes altogether, or in one’s own county or city? On September 22, 2017, the State issued a new MLTC Policy 17.02 that will auto-assign members of a closing plan to a new plan, which will be required to provide the same services that the closing plan provided for a certain period of time.

This article explains:

A. Recent Plan Closings – Status

B. Details about that MLTC Policy are discussed below.

C. Consumer advocate concerns about the policy are discussed below

D. Past Plan Closings

E. Strategy for Consumers Faced with Plan Closings or Reductions in Service Area

A. Recent MLTC Plan Closings or Withdrawal from Counties – Northshore LIJ, Guildnet, and Homefirst

The newest MLTC plan to close is North Shore LIJ MLTC plan. As of Sept. 2017 its enrollment numbers are as follows. SOURCE: NYS DOH Monthly Managed Care Enrollment Statistics.

NASSAU	1,846
NEW YORK CITY	2,618
SUFFOLK	1,181
Total	5,645

New York Newsday publicized the closing on September 1, 2017, Northwell to end long-term care plan that covers 6,000 elderly, On September 22, 2017, North Shore sent this letter to all of its members The letter informs members that the plan is closing 12/31/17. and that unless they enroll in a different plan before 11/10/17, they will be auto-assigned to Centers Plan for Health Living effective January 1, 2018. The North Shore MLTC closing is the first one that applies the new Transition Policy issued by the State Dept. of Health, described below. Centers Plan is poised to increase its current enrollment of 18,600 to become the largest partial capitation MLTC plan in the state. Comparison of the 4 largest MLTC plans in the state is as follows

	Centers Plan	Guildnet	Fidelis	VNS
ERIE	201	0	604	165
NASSAU	284	340	750	493
NEW YORK	17,571	557	7,825	10,102
NIAGARA	32	33	91	0
ROCKLAND	71	0	65	85
SUFFOLK	279	0	989	473
WESTCHESTER	222	8,792	731	362
Other counties	0	0	8,432	964
Total 9/2017	18,660	9,722	19,487	12,644
FROM NS LIJ MLTC	5,645
POTENTIAL TOTAL	24,305

Guildnet has been trying to close its MLTC in Nassau, Suffolk, and Westchester counties since at least November 2016. See history in this link – read updates for April and May 2017.

UPDATE: In October 2017 – NYS DOH reportedly is permitting Guildnet to notify its remaining 930 Guildnet members in the three affected counties that they have 60 days to select a new plan, or they will be auto-assigned to another plan, pursuant to the new DOH MLTC Policy 17.02 described below. See consumer strategies below to advise clients who receive these letters.

Prior history – Guildnet closing – In April 2017, Guildnet sent notices to its over 4,200 members in the 3 affected counties (Westchester, Suffolk, and Nassau) that they had to select a new plan by May 18, 2017 “to assure a smooth transition.” Members panicked when other plans either could not schedule assessments before that date, or offered to accept the enrollee but with hours reduced compared to the number Guildnet authorized.

On May 13, 2017, NYS Dept. of Health sent over 4000 letters to members of Guildnet MLTC plan in the 3 counties that clarified that Guildnet had requested to pull out of those 3 counties, but that members were not required to find a new plan by June 1st, and that Guildnet was required to continue providing them with MLTC services “until a smooth transfer can be completed to your new plan.” The letter did not say what happens if the enrollee could not find a plan willing to provide the same hours as Guildnet authorized. See letter posted here.

In June 2017, a lawsuit called “Turano” was brought by the New York Legal Assistance Group, through its Special Litigation Unit,, representing Guildnet members harmed by the lack of a “transition policy” that guarantees a transition of members from Guildnet in the 3 counties to another MLTC plan with the same number of hours that Guildnet authorized. For more information contact NYLAG 212-613-5000 and ask for Special Litigation Unit re Guildnet Turano lawsuit.

Between November 2016 and September 2017, Guildnet enrollment in the affected 3 counties declined as follows (source: NYS DOH Monthly Managed Care Enrollment Statistics):

	Nov-16	Sept. 2017
NASSAU	1,861	340
SUFFOLK	2,256	557
WESTCHESTER	485	33
TOTAL	4,602	930

In October 2017 – NYS DOH reportedly is permitting Guildnet to notify its remaining 930 Guildnet members in the three affected counties that they have 60 days to select a new plan, or they will be auto-assigned to another plan, pursuant to the new DOH MLTC Policy 17.02 described below.

HomeFirst, an MLTC plan run by ElderPlan, announced in May 2017 that it is also pulling out of Suffolk County. As reported in Crain’s Health Pulse, this is “… the latest example of an insurer narrowing its geographic coverage for chronically ill and disabled members, the health plan confirmed on Friday. The decision ‘was driven by the difficulties we encountered effectively staffing and serving the needs of members across such an expansive geographic area,’ said a spokeswoman for the nonprofit MJHS, which runs Elderplan. The insurer will continue to cover members’ services until they pick a new plan, she said.”

Enrollment in Elderplan in Suffolk county has decreased from 302 members in Nov. 2016 to 184 in Sept. 2017.

Earlier MLTC plan closings since 2015 are posted below.

B. Sept. 2017 NYS DOH Policy 17.02 when MLTC Plans Close or Reduce Service Area

On September 22, 2017, the New York State Department of Health issued a directive called, “MLTC Policy 17.02: MLTC Plan Transition Process – MLTC Market Alteration.” This policy directive clarifies an important protection for enrollees in a plan that is closing. Members will receive a notice from New York Medicaid Choice, the States enrollment broker for managed care, that they should select a new plan within sixty (60) days of the date of the notice. The notice will state that if they do not select a plan within sixty (60) days, they will be auto–assigned to a new MLTC plan. There should be no interruption of services.

CONTINUITY OF SAME SERVICE PLAN & HOURS – MLTC Policy 17.02 requires the new plan to which the member is transferring must continue to provide services under the enrollee´s existing plan of care — meaning the same types of services for the same number of hours/week — and utilize existing providers “for the earlier of the following: (i) one hundred twenty (120) days after enrollment; or (ii) until the new plan has conducted an assessment and the enrollee has agreed to the new plan of care.” See more below about advocate concerns about the length of this transition period and what happens if the new plan decides to reduce services.
CHOICE OF PLAN — While the enrollee may choose to transfer to an MLTC, FIDA, PACE, or Medicaid Advantage Plus plan, they will be auto-assigned solely to an MLTC plan if they do not select a plan themselves. the MLTC plans provide only Medicaid services, and no Medicare services. Those in these “partially capitated” plans obtain their Medicare services from either Original Medicare fee for service or through their own Medicare Advantage plan. In contrast, FIDA, PACE, or Medicaid Advantage Plus plans are “fully capitated” and combine a Medicare Advantage plan with an MLTC plan, providing all Medicaid and Medicare services in one plan,
No Conflict-Free Eligibility Assessment Required – The new plan must accept the enrollee transferring from the closing MLTC plan..
“Blind” Enrollments Allowed Directly with New York Medicaid Choice – Members of a closing plan do not have to schedule an enrollment visit with a new plan in order to sign up with a new plan. They may contact New York Medicaid Choice directly to enroll in a new plan. Most members would prefer, however, to be assessed by the new plan before enrolling. This way they may be able to find out if the new plan is likely to try to reduce their hours after the 120-day transition period. However, with a high demand for assessments when a plan closes, it is difficult to schedule assessments in the short period of time allowed, so a “blind” enrollment may be necessary.
Protection of Nursing Home Residents Enrolled in Plan that is Closing – The new policy states, “Permanent nursing home residents shall be allowed to remain in their nursing homes and be accommodated through an out–of–network arrangement if the nursing home is not part of the receiving plan´s network.” This protection is important now that most nursing home residents who were admitted to a nursing home since October 2015 must be enrolled in an MLTC plan, which is responsible for paying the nursing home and managing the care. See this article and DOH Medicaid Redesign Team 1458. This policy ensures that no nursing home resident will be required to move to a new nursing home.

C. Consumer Advocacy Concerns about new Transition Policy 17.02

The “new plan” must only continue services for the longer of:

(i) 120 days after enrollment; or

(ii) until the new plan has conducted an assessment and the enrollee has agreed to the new plan of care.

The new plan is required to conduct an assessment within 30 days of the transfer enrollment effective date, unless a longer time frame has been expressly authorized by the Department in its sole discretion.” Consumer advocates have expressed concern to the State Department of Health about various aspects of this policy.

New plan does not have to continue same services for 120 days if it reassess member’s needs earlier and member has “agreed” to a new plan of care. Consumer advocates believe that only a member fearful of losing their home care services, or pressured into “agreeing” without being advised of their rights — would agree to a reduction of their services. The DOH Policy does not appear to require the new plan to send the member notice telling them that hours are being reduced because they “agreed” to the reduction, and if the plan is mistaken as to whether the member agreed, that the member may appeal the reduction. The notice should also explain that reductions in hours are permitted only when there is a justification for the reduction. See #2 below.
The law is well established that Medicaid home care services may be reduced services only if the member’s condition has improved or some other change in circumstances has occurred that reduces the need for services. A federal court found that this protection is required by the Due Process clause of the Fourteenth Amendment of the U.S. Constitution. Mayer v. Wing, 922 F. Supp. 902, 911(S.D.N.Y. 1996). It is incorporated in state regulation. 18 NYCRR 505.14(b)(5)(v)(c)(2)(ii), and has been expressly applied to MLTC plans. See MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services.

Advocates claim that this policy should apply regardless of whether an MLTC plan is reducing services that were previously authorized by that same plan, by another MLTC plan, or by the local Dept. of Social Services. Either way, the services were duly authorized by an agency or organization to which the NYS Dept. of Health delegated the authority to determine the amount of services that are medically necessary. .That determination must stand until a determination is made that the consumer actually needs less care because of a change. The State acknowledged in MLTC Policy 16.06 that just because a plan conducted a new UAS assessment that resulted in fewer hours is not a reason for reducing hours, unless there is an actual change in the member’s condition or circumstances.
This situation is no different than when people receiving home care under the old personal care program, administered by the local Medicaid agencies, or other Fee for Service home care services, are transitioned to mandatory MLTC. They have a 90-Day Transition Period with the right to advance notice and appeal rights if services are reduced after 90 days.

WRITTEN NOTICE — The policy fails to explicitly require the new plan to give written notice BEFORE reducing services, with the right to request an appeal and AID CONTINUING, which is the right to continue services at the higher amount authorized by the closing plan, until the appeal is held and decided.
WHICH MEMBERS OF THE CLOSING PLAN MUST BE GIVEN THE SAME SERVICE PLAN and HOURS by the NEW PLAN? The Policy only says that no one may be “transitioned” until the plan closure is approved by State Department of Health. In recent plan closings, rumors and even press coverage started before the closure was approved by the State — which frightened members into switching to other plans even if those plans did not offer the same number of hours. Members can be afraid that they would lose ALL of their home care if their plan closed, and transfer to a plan that offered only reduced hours. Would those members be protected, with the new plan required to continue the same number of hours?
BLIND ASSESSMENTS – As stated above, most members of a closing plan would prefer to be assessed by the new plan before enrolling. This way they may be able to find out if the new plan is likely to try to reduce their hours after the 120-day transition period. However, with a high demand for assessments when a plan closes, it is difficult to schedule assessments in the short period of time allowed, so a “blind” enrollment may be necessary.
ICAN INFORMATION – Policy 17.02 does not require that all notices include contact information for ICAN – the Independent Consumer Advocacy Program funded by the State to serve as ombudsprogram to advocate for MLTC members. The September 2017 notices from North Shore LIJ MLTC plan, the first ones issued for a plan closing under the new Policy 17.02, lacked any referral information to ICAN, DOH presumably approved these notices.

D. Past MLTC Plan Closings in NYS

Centerlight Select” MLTC Plan closed effective January 31, 2017. All 5,099 members enrolled as of November 2016 were transferred to the Centers Plan for Healthy Living MLTC Plan (“Centers Plan”) effective Feb. 1, 2017, if they did not choose and enroll in a different plan. The acquisition of the Centerlight members made Centers Plan the fourth largest MLTC plan in the state (after Fidelis, Guildnet and VNS Choice), growing from 8,373 to 13,472 members. See Nov. 2016 enrollment stats. Centerlight’s 5,099 MLTC members received a letter in early December stating that if they did nothing, they would be transitioned to Centers Plan MLTC on Feb. 1, 2017.
December 2015 – HIP/EmblemHealth MLTC plan sent letters to its 1300 members that it would no longer offer MLTC coverage as of January 1, 2015. The notice stated that unless members choose and enroll in another MLTC plan by December 18th, they will automatically be enrolled in Guildnet. Emblemhealth had the 5th smallest enrollment of the MLTC plans in NYC.
September 2015 – Homefirst discontinued enrolling new members in eight upstate counties — Albany, Erie, Niagara, Monroe, Onondaga, Rensselaer, Saratoga, and Schenectady. Membership in this plan in these counties totaled 715, with Monroe County the most impacted. Members were notified that they could switch to another plan, but remain in Homefirst if they did nothing. Advocates reported problems including:
- people who remained in the plan could not receive services because the plan had ended contracts with some of its home care providers;
- members contacted other MLTC plans which refused to authorize the same number of hours that Homefirst had authorized. There was no right to continuity of coverage.
- Given the small number of plans in these upstate counties, other plans lacked the resources to assess, let alone serve all of the enrolllees who transferred.

E. Consumer Strategies When Plans Close

Consumers who receive notices that their plan is closing – whether North Shore LIJ MLTC or Guiildnet now in late 2017, or other plans in the future — should not enroll in any other plan that does not ensure in writing that they will approve the same services that the plan that is closing approved. They should either (1) wait to be automatically assigned to a plan by New York Medicaid Choice OR (2) find a plan that contracts with the same home care agency or CDPAP provider the consumer wants, and enroll in that plan after consumer receives the 60-day notice to select a plan)

Given that MLTC Policy 17.02 allows plans to reduce services if the consumer “agrees,” consumers should be careful not to indicate agreement to a reduction. Send a letter that they do not agree to a reduction. Be sure to keep proof of faxing, emailing or mailing this statement.

If the member transitions to a new plan – whether a plan they select or a plan they are auto-assigned to — and the new plan indicates it will reduce services, request a fair hearing right away and contact ICAN or other legal services program. Request a hearing even if the new plan does not provide written notice of the reduction. ICAN provide assistance or representation in some cases.