Advocate's Guide to the Florida Long-Term Care Medicaid Waiver
Updated March 14, 2020
Miriam Harmatz | Executive Director, Florida Health Justice Project
Katy DeBriere | Legal Director, Florida Health Justice Project
Timothy Loftus, M.D. and Michelle Adams | Research Assistants, Florida Health Justice Project
Jocelyn Armand | Advocacy Director, Legal Services of Greater Miami
Updated Acknowledgment, February 2020
Advocate Guides like this need to be regularly updated: laws change, waiver documents are updated, managed care contracts are amended. Moreover, feedback from providers and consumers informs and improves the entire Guide, including the “Advocate Tips.” Thus, we are deeply grateful to Naomi Stanhous and the Retirement Research Foundation (RRF) whose generous support made updating this Guide possible. We are also grateful to Max Rothman, Executive Director of the Miami Area Alliance for the Aging. Their generous support enables us to meet with Miami area community providers and agencies that serve older residents in need of home-based services.
We also want to thank the providers and agency staff who provided feedback on the Guide, including new and improved “Advocate Tips.” Their real-life expertise and input is critical in making the Guide as useful and relevant a tool as possible. As lawyers, we can provide analysis and citations for the multiple sources of authority governing Florida’s LTC waiver, but this is no substitute for the day-to-day experience in helping frail and disabled individuals obtain the medically necessary services needed to remain safely at home.
Thanks are also due to the law students whose help in updating the Guide was invaluable: Timothy Loftus, Andrea Faverio, and Brett Brummond.
Miriam Harmatz, Executive Director, Florida Health Justice Project
Katy DeBriere, Legal Director, Florida Health Justice Project
Original Acknowledgement, August 2018
We want to thank Nancy Wright, a leading Florida expert on the state’s Medicaid Long-Term Care Waiver and Eric Carlson, Directing Attorney at Justice in Aging, and a leading national expert on Medicaid long-term services and supports and home and community-based waivers. Not only was this Guide made possible thanks to their previous work, but they also spent hours reviewing and editing our drafts. Major thanks are also due to Joseph Schieffer, Project Manager with Florida Justice Technology Center (FJTC) and an expert in innovative technology. Joseph spent hours preparing a web-based version of this Guide, maximizing its usefulness for advocates and consumers.
We also want to thank our co-authors Jocelyn Armand, Advocacy Director of Legal Services of Greater Miami and Michelle Adams for their invaluable help and support in preparing the Guide.
Thanks are also due to Valory Greenfield, staff attorney with Bay Area Legal Services Florida Senior Legal Helpline and Anne Swerlick, Florida Medicaid expert and Health Policy Analyst with the Florida Policy Institute who consulted on making the Guide more useful for Florida advocates serving seniors needing long-term services and supports and to Joseph Schieffer and Alison DeBelder, from the Florida Justice Technology Center, who helped share this resource with the Florida advocacy community. We are also grateful to Brett Brumund whose help in updating the Guide was invaluable.
Finally, we are deeply grateful to Sarah Halsell, State Legal Services Developer with the Florida Department of Elder Affairs (DOEA). Sarah’s commitment to ensuring that there are current updated resources for Florida’s advocates, along with critical financial support from the U.S. Administration for Community Living Model Approaches to Statewide Legal Assistance Systems, made this Guide possible.
Miriam Harmatz, Executive Director, Florida Health Justice Project
Katy DeBriere, Legal Director, Florida Health Justice Project
March 14, 2019
Why this Guide?
It goes without saying that government-subsidized health care benefits are critical for low-income Florida seniors—particularly those who are frail and disabled.
This Guide concerns one of the most important health care benefits for this population— the long-term services and supports (“LTSS”) that are essential to being able to remain in one’s home or community rather than having to receive care in a nursing home. Also known as “home and community-based services,” (“HCBS”), these include services not typically available through Medicare or standard medical insurance, such as personal care aides and private duty nursing. Nationwide, over half of people turning 65 will at some point develop a severe disability or medical condition that will require HCBS.1
In Florida, HCBS for adults are available under the Statewide Medicaid Managed Care system. Long-term care – including both nursing home care and HCBS –are both part of Florida’s “Long-Term Care Program.”2 This Guide, however, focuses exclusively on the portion of the LTC Program that provides HCBS, (the “LTC Waiver.”) While the LTC Waiver has a cap on the number of individuals served and a wait list for enrollment3, that should not deter individuals from applying.
Purpose of the Guide
This Guide provides advocates with an overview of the authority governing Florida's Medicaid Managed Care Long-term Care (LTC) Waiver and a roadmap addressing basic questions including:
What are Medicaid Waivers?
Under waiver programs, states can “waive” certain requirements in the Medicaid Act with permission of the federal government. For example, a waiver program allows states to provide care for people who might not otherwise be eligible under Medicaid; provide services that are not necessarily medical in nature, or implement a managed care system. Florida’s current Long-Term Care Waiver operates through two separate waivers authorized under Social Security Act Sections 1915(b) (for managed care) and (c) (HCBS).
Section 1915(c), authorizing Medicaid HCBS waivers, was enacted by Congress in 1983. HCBS waivers allow states to provide home and community support services to a specified number of individuals as an alternative to institutional care.4 All individuals enrolled in a HCBS waiver must meet an institutional level of care.5
To facilitate these programs, the federal government can waive general Medicaid rules that programs be available throughout a state (statewideness) and to all eligibility groups (comparability), and offer more lenient financial eligibility standards.6 In addition, Section 1915(b) of the Social Security Act provides authority allowing states to require enrollment in managed care by waiving the rule that beneficiaries are free to choose their providers.7
Because states are allowed to limit enrollment in HCBS waivers,8 eligible individuals who meet the clinical and financial eligibility requirements for HCBS can nonetheless be put on a waiting list. By contrast, similarly eligible individuals seeking nursing home placement cannot be put on a wait list.9
History and current status of Florida's Long-Term Care Waiver
In 2011, the Florida Legislature established a statewide integrated managed care program for all covered services, including long-term care.10 The new statewide program included the “managed medical assistance (MMA) program ” for delivery of primary and acute medical assistance, and the “long-term care" (“LTC”) managed care program.11
Under a managed care delivery model, the state contracts with private entities, including managed care organizations to “manage” the health care needs of their enrollees using their own network of providers. These managed care organizations (hereafter referred to as the “Plans”) act as the gatekeepers for authorization of services and referrals to network providers for covered services.
After a public comment period, the Agency for Health Care Administration (AHCA) submitted two waiver applications to the Center for Medicaid and Medicare Services, (CMS), the federal agency responsible for administering Medicaid. In 2013 CMS granted approval under both to provide HCBS through the Statewide Medicaid Long -Term Care Program. (Hereafter the “LTC Waiver”).
In 2016 AHCA requested a five (5) year renewal of both the 1915(b) and (c) waivers to continue its LTC Waiver. The 1915 (b) renewal application provided a program description, including access standards and a monitoring plan. This document also included a helpful list of the acronyms and abbreviations used throughout the waiver, which is included in the Appendix.12
The cover letter attached to the renewal request stated that the “purpose of the Long-term Care waiver is to provide choice of long-term home and community –based services for eligible and disabled adults in Florida as an alternative to nursing facility services for their long-term care . . . to provide incentives to serve recipients in the least restrictive setting . . .and [to] improve access to care and quality of care."13
The 1915 (c) renewal application, a 233-page document, reiterated the goals. It also included detailed descriptions of the services to be offered, the case management process for developing a care plan, and other procedures designed to ensure that due process is protected.14
On December 19, 2016, CMS approved the renewal requests, including approval of an annual number of unduplicated recipients of 62,500 for each year of the waiver.15 The waiver applications, which contain multiple terms and conditions, are posted online and cited throughout this Guide. Advocates should be familiar with these documents, as they provide extensive detail describing how the state will operate the program and form the basis for the federal government’s approval of the Waiver and the amendment request.16
Thus, AHCA is ultimately responsible for ensuring that the LTC Waiver complies with all aspects of federal and state law, including the promulgation of appropriate administrative rules, and development of contracts between AHCA and the Plans that accurately reflect federal and state statutes and regulations.
AHCA administers the waiver in partnership with the Department of Elder Affairs (DOEA), which maintains the statewide wait list for the LTC Waiver and assists with enrollment.19 The Department of Children and Families (DCF) is responsible for determining financial eligibility.20
The 2011 Florida statute establishing the statewide integrated managed care program described the populations required to enroll as including beneficiaries needing a nursing home level of care who are: 1) age 18 and older, who are eligible for Medicaid due to blindness or disability, or 2) age 65 or older who are eligible for Medicaid based on age.21 Following CMS’s approval, enrollees in four existing HCBS waivers were transitioned into the LTC Waiver: (1) the Aged/ Disabled Waiver, (2) the Assisted Living Waiver, (3) the Channeling for the Frail Elderly Waiver, and (4) the Nursing Home Diversion Waiver.
In 2017, state legislation was passed directing AHCA to consolidate three additional adult HCBS waiver populations (Project AIDS Care, Traumatic Brain and Spinal Cord and Adult Cystic Fibrosis) into the Long-term Care (LTC) Waiver. Pursuant to the statute, individuals from each of those waivers were transitioned into the LTC Waiver in January 2018.22
Advocates and consumers should be aware of Programs of All-Inclusive Care for the Elderly (“PACE”). The PACE program, like the LTC Medicaid managed care program, is an alternative to nursing home care or other care facilities.
PACE programs establish centers for Medicaid or Medicare recipients to receive services covered by Medicaid and Medicare. Unlike Long-Term Care service eligibility, placement in a PACE program is age-based. To receive PACE services, applicants must: 1) be 55 or older, 2) live in the service area of a PACE organization, 3) need a nursing home-level of care, and 4) be able to live safely in the community with help from PACE.23 Enrollees receive all medical services and prescription drugs covered by Medicare and Medicaid on site of the PACE program. Enrollees also receive transportation, home care, checkups, hospital visits, and nursing home stays when necessary. For individuals that have both Medicaid and Medicare, PACE program enrollment is fully covered financially. Those who receive only Medicare will pay a monthly premium.24
Role of the Managed Care Plan
As discussed more fully below, all Plans operate under the same Core Contract with AHCA which requires provision of covered services that are “medically necessary” for the individual enrollee. The case manager, the main point of contact for the enrollee, helps develop a “plan of care,” and is responsible for providing ongoing assistance in obtaining necessary services.25
In order to meet clinical eligibility, applicants must require a “nursing facility level of care".26 Determining if the applicant requires nursing facility care (also referred to “the level of care determination”) is done by the Comprehensive Assessment and Review for Long-Term Care Services (CARES) program.27
Financial eligibility is determined by the Department of Children & Families (DCF) pursuant to SSI- Related Medicaid rules.28 If an LTC Waiver applicant is already Medicaid-eligible because he or she receives Supplemental Security Income, DCF does not need a new application.
The 2019 income limit for HCBS waiver programs is 300% of the SSI income limit, or $2,313 per month for an individual, and $ 4,626/month for couples who are both eligible.29 Applicants for the LTC Waiver whose income is over this amount may still qualify by establishing an income trust that receives the person’s “excess” monthly income.30 The asset limit is $2000 for an individual and $3000 for a couple, not including certain exempted assets, such as the homestead or a vehicle.31
Financial eligibility is complicated, and this Guide does not attempt to address Medicaid planning for persons whose assets or income exceed the Medicaid limits, or for couples where only one spouse requires LTC Medicaid. These applicants should find either a local legal aid or elder law attorney with expertise.
Step 1 - Make an appointment to be screened for LTC Waiver wait list priority
For most applicants, the first step is contacting the local Aging & Disability Resource Center (ADRC) or the Elder Helpline at 1-800-96-ELDER (1-800-963-5337). Florida has eleven (11) ADRCs and the contact information for the applicable office can be found at the Department of Elder Affairs website.32 Relevant contact information for each region is also included in the Appendix.
Some ADRCs will either do the assessment at the time of the call or set an appointment. Other ADRCs will send a letter scheduling a telephone appointment for the initial assessment.
For individuals who are already receiving Older American Act (OAA) services through a community provider, there is also a 701A assessment. This is an in-person assessment performed by the agency providing the individual’s home-based services, such as personal care and home delivered meals.33 The 701A gathers much of the same data items as the 701S and, as with the 701S, the 701A, will result in a priority score. The provider Agency completing the 701A submits it to the ADRC. However, even though the 701A is done in person and produces a priority score, the ADRC is still required to provide a 701S.
Step 2: The 701S Assessment and Waiver Prioritization
The ADRC telephonic assessment of needs uses the 701S Screening Form.34 This form gives a “priority score” that measures both the applicant’s need for assistance as well as what caregiver resources are currently available.35
The interviewer will ask for information including: if the applicant lives alone or has a caregiver; the caregiver’s health status and ability to continue to provide care; the applicant’s present health and how it compares to the prior year; how the applicant’s health may limit preferred activities; assistance needed with Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs)36; and health care resources available to the applicant, including access to health care and medications.37
Because the 701S form measures both the applicant’s need for assistance and the caregiver resources currently available, it is important to underscore exactly what the applicant cannot accomplish independently, be realistic about what a caregiver can actually do, and underscore any questions/concerns about the caretaker’s sustainability.
It is also important to listen carefully to the question, to answer carefully, and to request clarification whenever necessary.38,39
Once the 701S form is completed, the ADRC will calculate the priority score and assign a frailty-based level or category referred to as a “rank.”40 The individual is scored using a matrix.41 An individual is prioritized for LTC waiver services based on their score and rank:
If the 701A resulted in a higher score than the 701S and the individual appeals the score, the 701A could be introduced as supporting evidence at a fair hearing.
Designated groups who skip Steps 1 and 2
The Florida Legislature specified three (3) categories of individuals who are entitled to priority enrollment for home and community based services under the LTC Waiver.45 Those individuals, described below, move directly to Step 3 and do not have to participate in the 701S screening assessment or wait-list process:
If an applicant is at imminent risk of being placed in a nursing home, it is important to describe to the 701S assessor in detail how the person meets each prong of the definition.
Step 3: Release from the waitlist and determination of clinical/financial eligibility
Pursuant to the Florida Medicaid statute, AHCA notifies the Department of Elder Affairs of LTC waiver slot availability; CARES conducts a prerelease assessment; and DOEA then “release[s] individuals from the wait list based on the priority scoring process and prerelease assessment results.”47
Pursuant to the EMS Manual, DOEA will notify local ADRCs when waiver slots have been released, and the ADRC then contacts those individuals included in the release list.50 After confirming that the individual is still in need of long-term care services51, the ADRC sends a written notification of wait list release. This notice includes information on the enrollment process and the instructions and timeframes for completing eligibility.52
Clinical and financial eligibility
It is important for advocates and provider agencies to know that if an individual applying for LTC is currently getting home health service through the Community Care for the Elderly (CCE) program and the individual is released from the wait-list but fails to complete an application or does not meet financial eligibility, and is thus denied, the individual may not be able to get back on CCE right away.
Applicants must have their physician, or other licensed healthcare provider familiar with their needs, complete an AHCA Medical Certification for Medicaid LTC (also referred to as Form 5000-3008)56 within 30 days from the date of the wait list notification.57
As soon as the ADRC receives a complete and correct Form 5000-3008, they will contact the CARES office and request a Level of Care (LOC) determination.58
The CARES team will then meet with the applicant and complete a 701B comprehensive assessment.59 This assessment is administered in a face-to-face meeting by a licensed healthcare provider to ensure the applicant meets the “medical eligibility” for the LTC Waiver.60 For those applicants who meet the nursing home level of care requirement, the CARES team assigns the applicant into one of three (3) levels61:
Level of care 1: applicants residing in or who must be placed in a nursing facility.
Level of care 2: applicants at imminent risk of nursing home placement, as evidenced by the need for the constant availability of routine medical and nursing treatment and care, and who require extensive health-related care and services because of mental or physical incapacitation.
Level of care 3: applicants at imminent risk of nursing home placement, as evidenced by the need for the constant availability of routine medical and nursing treatment and care, who have a limited need for health-related care and services and are mildly medically or physically incapacitated.
Once the Level of Care is determined, the application is forwarded to the Department of Children & Families for completion of eligibility for the LTC waiver.62 Financial and clinical eligibility determinations can, and should, proceed simultaneously.
The applicant has 35 days from the date of wait list notification to submit the Medicaid application. A Medicaid application submitted through DCF’s online ACCESS portal triggers the financial determination.
The ACCESS application asks for the applicant’s name, SSN, date of birth, address, phone number as well as income and assets. DCF may also require verification of the applicant’s income and assets, e.g. bank statements, pay stubs, and paperwork on asset ownership or recent sales.63
Do not wait until all financial eligibility verification is obtained in order to submit the ACCESS application.
Initial Assessment / Priority Rank
First, as noted above, applicants are entitled to written notice regarding the results of the 701S screening and may appeal their priority rank and/or score. Those appeals are filed directly with the state through the Agency for Healthcare Administration’s Medicaid Hearing Unit.66
After release from waiting list
The EMS Manual states that the post release assessment—both the clinical assessment done by CARES and the financial assessment done by DCF—fall within DCF’s responsibility.67 In addition, the final notice of case action on LTC Waiver eligibility is generated by DCF. Thus, an appeal should be filed with the DCF hearing office.68
An applicant who is found eligible and enrolled in the LTC Waiver must select one of the private managed care plans (“Plans”) operating in the region where the applicant resides.
As of the 2018 State Medicaid Managed Care Re-procurement process, there are no longer stand-alone long-term care (LTC) plans. Recipients who are eligible for LTC services will choose between either an LTC+ or Comprehensive Plan in their region. Recipients who are eligible for MMA and LTC programs must choose one health plan for all of their services.69
The LTC+ Plans provide managed medical assistance (MMA) services and long-term care services to recipients enrolled in the LTC programs. These plans cannot provide services to recipients who are only eligible for regular MMA services. The Comprehensive Plans provide both MMA and LTC services to eligible recipients.70
Each of Florida’s eleven regions must have at least two managed care plans to choose from for long-term care services. A list of Plans in each region is also available online or at the local ARDC.72
The enrollee should look at the Choice Counseling website at www.flmedicaidmanagedcare.com; or call 1-877-711-3662 to talk to a choice counselor. An enrollee can also request that a choice counselor meet with him or her at home.
Enrollees who do not voluntarily select a Plan will be auto-assigned by AHCA. The Agency can only assign Plans that meet or exceed performance standards and must take into account several factors including: network capacity; past relationship between the recipient and the provider; and geographic accessibility.73
After selecting a Plan (or being assigned), the Plan is responsible for conducting an initial visit. The requirements of the initial visit are enumerated in the Contract between AHCA and the LTC Plans and include explaining the enrollee’s rights and responsibilities and finalizing the plan of care.74
Recipients may request disenrollment at any time via written or oral request to AHCA. Disenrollment for any reason is permitted within the first 120 days after enrollment.75
After 120 days, recipients may change plans only for “good cause” or during the annual open enrollment period.
To change their Plan, beneficiaries can speak with a choice counselor at 1-877-711-3662.
Pursuant to the state’s published Rule, the following reasons constitute good cause for disenrollment and do not require that the enrollee first seek resolution through the plan’s internal grievance process:
Exemptions from the LTC Waiver
The state allows otherwise mandated beneficiaries to request exemption on a case-by-case basis. As with a request for disenrollment (see discussion above), the enrollee should contact the enrollment broker who, in this case, would refer the request to AHCA. If the issue still cannot be resolved after working with the individual and the available LTC plans in the area, the agency has the ability to instruct the enrollment broker to exempt the individual from enrollment into LTC.77
Going over the Handbook
During the initial face-to-face visit, the plan representative provides the enrollee with the Plan’s ID card, a provider directory, and an enrollee handbook.79
The current contract no longer contains prior requirements from the Member Handbook other than cross-reference to the federal regulations at 42 C.F.R. 438.10(g). Notably, this regulation pertains to all managed care in general; it is not specific to HCBS.80
Explaining grievance and appeal
Conducting an assessment & developing care plan
Person-centered Planning Process
After years of advocacy, CMS finalized rules in 2014 detailing requirements for “person-centered” planning for all HCBS programs.83
“Person-centered” planning means that the process should actually be directed by the individual to the “maximum extent possible.”84
The process is intended to identify the individual’s strengths, capacities, preferences, needs, and desired measurable outcomes. Enrollees are encouraged to make decisions about service options and identify personal goals. They must also be allowed to invite anyone of his/ her choosing to participate in the process and provide aid as needed or desired.85
Person-centered Plan of Care
Pursuant to this planning process, Plans are required to develop a person-centered plan of care.86 This is a written document that reflects the clinical and support needs identified through the assessment process, the person-centered goals and objectives, the services and supports (paid and unpaid) that will assist the enrollee in achieving identified goals, and the service providers.87
Additionally, the plan must reflect an enrollee's risk factors and identify measures in place to minimize them, such as individualized backup plans and strategies when needed.88
Significantly, the enrollee or enrollee’s authorized representative must indicate whether they agree or disagree with each service authorization and review and sign the plan of care at initial development, annual review, and for any changes in services.89 In addition, all individuals and providers responsible for its implementation have to sign the care plan.90
In sum, the Plan of Care (or Care Plan) is the critical written document that specifies the services and supports that are to be furnished in order to meet the enrollee’s abilities, needs and preferences, e.g. to live in her/his home.91
As part of the care planning process, the Plans are required to complete a written LTC Supplemental Assessment, and all completed forms should be maintained in the client’s case file.93 (A sample form is included in the Appendix.)
In addition to including the amount of time the enrollee can be safely left alone, the assessment must include the following with regard to natural supports:
If there is any concern about the sufficiency of services being authorized, a copy of the LTC Supplemental Assessment should be requested from the case manager or the Plan’s grievance and appeals coordinator.
Role of Case Management
Effective case management is a critical part of the LTC Waiver, and Section E of the Contract (“Care Coordination/Case Management) specifies a number of case management duties and time frames for contact with enrollees.94
For example, there must be a face-to-face visit within five (5) days. In addition, the case manager is required to meet with the enrollee, including at least every 90-days (and more frequently if there has been any significant change).95
The prior contract requirement that the Managed Care Plan follow up within seven (7) days after the initial meeting, to ensure that services specified in the plan of care actually started is no longer in Section E of the Contract.96
The case manager is also responsible for ongoing assistance, including assistance in identifying issues and barriers to the achievement of goals and documenting actions taken to resolve issues as quickly as possible.97
Managed Care Plans must conduct an annual reassessment of the enrollee’s plan of care to determine whether an enrollee’s service needs are being met. Reassessment may be conducted more frequently if the need arises. The Plan shall complete the reassessment using Agency-required forms and the plan-developed LTC Supplemental Assessment form.98
Participant Directed Services
During the care planning process, enrollees who live in their own home or the home of a family member, can choose to “self-direct” certain waiver services, including adult companion, homemaker, attendant care (private duty nursing), intermittent and skilled nursing, and personal care.
Participants who opt to self-direct these services are then responsible for training workers, setting work schedules, and submitting timesheets to the plan.99 They do not set the pay rate, however.
Florida’s 1915(c) waiver application reflected the State’s goals for the number of participants selecting “self-direction” as starting at 300 in Year 1 and increasing to 500 for each of the last 3 years of the Waiver.100
The Florida Legislature has specified the minimum services that LTC Plans must provide. The state contract requires that MCO Plans also include four (4) additional services: adult companion care; attendant nursing care; assistive care; and homemaker.101
A complete list of the services is included in the Appendix, and each service is also briefly described in the LTC Rule.102
Plans must offer all listed services. None of these services has a limit or cap, beyond the requirement that the service be “medically necessary.”
In determining if a covered service must be provided to an individual beneficiary (including the amount, e.g., physical therapy twice a week), the service must be “medically necessary.” There is, however, no definition of “medical necessity” in federal law for adults, including for HCBS services. Rather, the applicable federal regulation simply provides that the service must be sufficient in “amount, duration, and scope to achieve its purpose,”103 and states have significant flexibility in setting amount, duration and scope standards.104
As a result of litigation,105 Florida’s LTC Waiver now has two standards for determining “medical necessity”—one for HCBS services, and one for “mixed services.”106 The “mixed service” standard, also applies to all other services covered in the Medicaid program, e.g. hospitalization. Both standards are set forth in the boxes below and the contrast is significant.
Under the revised rule for “Home and Community-Based Supportive Services” e.g. adult companion care, adult day care, and homemaker services, “medical necessity” are now defined more liberally to acknowledge use of services to meet functional needs and access to the community,
Medical Necessity Definition for HCBS:
Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide and;
Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.
And, one of the following:
Enable the enrollee to maintain or regain functional capacity; or
Enable the enrollee to have access to the benefits of community living, to achieve person-centered goals, and to live and work in the setting of his or her choice.107
For “mixed services” (which include all types of nursing care, personal care, and all therapies), the long-standing definition of medical necessity remains applicable.
“Medically necessary” or “medical necessity” means that the medical or allied care, goods, or services furnished or ordered must meet the following conditions:
1) Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
2) Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
3) Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
4) Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide and;
5) Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.
Other Coverage Criteria
The LTC Waiver Rule begins with a statement of the overarching goal, i.e. that Plans “provide an array of home and community-based services that enable enrollees to live in the community and to avoid institutionalization.”109
This goal is reflected in specific criteria for coverage, which requires that plans cover services “intended to enable the enrollee to reside in the most appropriate and least restrictive setting,”110 and in the requirement for a “Supplemental Assessment."111
As previously discussed, the LTC Supplement Assessment, a key factor in deciding the array of necessary services, must quantify the amount of time an enrollee may safely be left alone and the amount of time a voluntary caregiver is willing/able to provide care. If the enrollee can never be safely left alone and the caregiver works 40 hours a week, an authorization of only 15 hours a week of direct staffing should be challenged.
Accordingly, in addition to the requirements of the LTC Supplemental Assessment, the Contract also prevents the Plans from ignoring the limitations of an enrollee’s natural support system. Specifically, the Contract's provisions on "Service Authorizations" state that the Plan "shall not deny authorization for a service solely because a carefiver is at work or is unable to participate in the enrollee's care because of their own medical, physical or cognitive impairments."112
The Contract also mandates that Plans “shall not deny medically necessary services required for the enrollee to safely remain in the community because of cost.”113
Timely Access Standards
In order to ensure that plans provide timely access to services, AHCA is required to establish network adequacy standards for the plans, e.g. the number of providers in each county.114 These requirements, along with the time standards for travel are set forth in the contract between each plan and AHCA.
For most LTC benefits, the AHCA/LTC Plan Contract requires that Plans have at least two providers in each county.115 For those services in which the beneficiary is traveling to the provider, e.g. adult day care or therapy (physical, occupations, respiratory), the travel time maximum is 30 minutes in urban counties and 60 minutes in rural counties.116 Thus, if an individual in Miami Dade County needs physical therapy three times per week and the travel time to a network provider is an hour, the plan has violated this standard. If the issue cannot be resolved, the recipient has a basis for a good cause disenrollment. See Section, Eight, supra.
The Core Contract (which governs both MMA, LTC+, and Comprehensive plans) also requires that plans have sufficient provider contracts to ensure that medically necessary services can be provided with “reasonable promptness” as set forth in the Medicaid Statute.117
The LTC Contract’s network adequacy standards are in Table 1, which requires that there be two providers in each county for most services, and for services that are provided outside of the home, there is a travel time standard of 30 minutes for urban counties and 60 minutes for rural counties.118
Care Coordination and Continuity
Florida’s LTC contract requires that the MCO have a process for “immediately reporting any unplanned gaps in service delivery.” As part of this process, the Plan must prepare a “Service Gap Contingency and Back-Up Plan” for enrollees who receive services in their home. A “gap” is the difference between the number of hours required by the care plan, and the number of hours actually provided.119
The contingency plan must inform the enrollee (or authorized representative) of resources available, including on-call back-up service providers and the enrollee’s "informal support system” in the event of an unforeseeable gap, such as a service provider illness or transportation failure.
The “informal support system" is not the “primary source” for addressing a gap, unless that is the enrollee’s choice. The MCO must ensure that gap services are provided within a three-hour time frame. The MCO must discuss the contingency plan with the enrollee, provide a copy to her/him, and ensure that the plan is updated quarterly.120
LTC plans are also required to include “distinct procedures” in their Utilization Management Program that include “protocols for ensuring that there are not gaps in service authorization for enrollees requiring ongoing services.”121
Additionally, in order to help ensure that enrollees do not experience gaps in critical LTC services, plans are required to authorize “maintenance therapies” i.e. treatments that are supportive rather than corrective and that prevent further deterioration122 for no less than six (6) months. For services of shorter duration, authorization must be supported by PCP prescription. If no prescription is required, the decision must be “supported by objective evidence-based criteria.”123
Because physicians may be unaware of this “maintenance therapy” policy and the ability to write prescriptions for up to 6 months for long-term care conditions, it can be helpful to provide the physician’s office with a copy of this contract provision.
Filing an AHCA Complaint
Enrollees who are having trouble accessing services or who are encountering other problems with their LTC Plan can file an official complaint with AHCA. These complaints are reviewed and responded to by trained staff members. In addition, AHCA identifies issues that may indicate systemic problems. While some issues are not amenable to resolution through the complaint portal and may ultimately require a fair hearing, this informal complaint process is not time intensive and may result in a quick resolution.
Grievances, Appeals, and Fair Hearings
What is the difference between a grievance and an appeal?
Each Plan is required to have a grievance and appeal process that complies with the federal Medicaid managed care regulations.126 The major difference between a grievance and an appeal is that an appeal should be filed when there is an “adverse benefit determination (ABD),” while a grievance would be filed if the enrollee is unhappy with the plan. For example, an enrollee could file a grievance if he or she was treated rudely.127
Filing and resolving a grievance or appeal with the Plan
Grievances and appeals can be filed orally or in writing; however, an oral request for an appeal must be followed with a signed appeal within 10 days (unless the request is for an expedited appeal.)128 The best practice is to file a written request with the Plan. The enrollee handbook must provide the necessary instructions and information for both grievances and appeals.129 In addition, any notice of adverse benefit determination should include instructions on how, where, and when to file an appeal. (See discussion below.)
The Plan must provide written notice acknowledging the receipt of the grievance or appeal within five business days.130
Enrollees have the right to an expedited appeal if the standard resolution “could seriously jeopardize the enrollee’s life, physical or mental health, or ability to attain, maintain, or regain maximum function.”131
What are the time standards for filing and resolving grievances and appeals and what notice is required?
Filing and resolution timeframes both for LTC and MMA plans are as follows:
Note that these time frames can be extended if the enrollee requests an extension. However, if the Plan requests an extension, the Plan must demonstrate to the state the need for additional time and why the extension would be in the enrollee’s best interests.
How to ensure the continuation of benefits?
When a beneficiary’s previously authorized services are terminated, suspended or reduced, she/he has the right to receive continued coverage of the medical services pending the outcome of an appeal and fair hearing. The importance of the right to “aid pending” for low income individuals was recognized by the United States Supreme Court in the seminal case of Goldberg v. Kelly, 397 U.S. 254, 261 (1970). Accordingly, services must be continued if all of the following occur:
If the beneficiary is provided with continued coverage of the service and ultimately loses the appeal, the cost of the service can be recouped.137
Notice of Appeal Resolution
The Plan is required to send written notice of the appeal resolution that includes:
What is an Adverse Benefit Determination (ABD)?
Adverse benefit determinations include:
In addition, ABDs include the denial of an enrollee’s request for an out-of-network service if the enrollee lives in a rural area and there is only one Plan.
Is there a requirement that the Plan appeal process be exhausted before filing a fair hearing?
Enrollees must first exhaust the Plan’s appeal process. Thus, a fair hearing can only be requested after notice that the adverse benefit determination has been upheld (at least in part) in the Plan appeal process.142
Are there any exceptions to exhaustion requirement?
Yes. If the Plan does not follow the notice and timing requirements in 42 C.F.R. § 438.404(c) (described below), the enrollee is “deemed to have exhausted” the plan appeal process and can request a state fair hearing.143
What Notice Requirements Apply?
The Supreme Court has long recognized the importance of written notices as part of procedural due process.144 The federal Medicaid Program regulations which apply to all fair hearings (including for eligibility and non-managed care services) include detailed notice requirements.145
Additionally, the 2016 federal Medicaid managed care regulations specifically linked the Plan notice requirements to an “adverse benefit determination” and set forth requirements pertaining to both the content and timing of the notice.146
The notice must include the following information:
Additionally, the notice must be accessible to individuals with disabilities or limited English proficiency.148
What time standards apply to various notices?
The following are examples of notices that fail to meet the notice content and time requirements. Thus, exhaustion should be deemed to have occurred and the enrollee can request a fair hearing if, e.g.:
Exhaustion requirement and exceptions
As discussed above, enrollees must first exhaust the Plan’s appeal process. Thus, a fair hearing can only be requested after the Plan issues its notice that the adverse benefit determination has been upheld.152
And, as noted above, if the plan does not follow the notice and timing requirements in 42 C.F.R. § 438.404(c), the enrollee is “deemed to have exhausted” the plan appeal process and can request a state fair hearing.153
Filing and Parties
Enrollees have the right to:
The hearing officer can also obtain, at agency expense, a medical assessment from someone not involved in the original decision.157
Requesting the case file
The federal regulations and state rules both acknowledge the right of the enrollee to receive, free of charge and a reasonable time before the hearing, a complete copy of the enrollee’s case file.158 42 CFR 431.242; 59G-1.100(12), F.A.C.
This should include the member notes or case notes, which are records of actions by Plan staff (including the Medical Director) related to the enrollee’s care or interactions with the enrollee and providers. The enrollee is also entitled to copies of documents or records relevant to the Plan’s adverse benefit determination.
Request a copy of the case file and other relevant documents, in writing when filing the appeal and the fair hearing request. If the Plan fails to respond, file an AHCA complaint or contact the Plan’s counsel directly. In the case of a fair hearing, if attempts to resolve with Plan counsel are unsuccessful, a motion to compel can be filed.
Discovery and subpoenas
Florida is one of the only states providing discovery in the fair hearing process, including for hearings related to managed care. AHCA's managed care fair hearing rule provides that the Florida Rules of Civil Procedure apply and the Hearing Office may issue orders to "effect the purposes of discovery and to prevent delay."159
The hearing officer’s Final Order should be rendered within 90 days of the request for a fair hearing, unless the time period is waived by the enrollee or extended by the hearing officer. 59G-1.100(18), F.A.C.
Enrollees can also request corrective action retroactive to the date of the error, including payments made by the enrollee to cover services that were improperly terminated.160
As part of the LTC Waiver, Florida has established the Independent Consumer Safety Program (ICSP). The ICSP coordinates efforts between the Florida Department of Elder Affairs, the Statewide Long-term Care Ombudsman Program (LTCOP), local ADRCs, and AHCA. The ICSP uses staff from LTCOP, DOEA, and ADRCs to help enrollees understand and resolve service, coverage, and access complaints.162
Pursuant to the Contract, Plans are required to have an enrollee advisory committee that meets at least twice a year to consider issues and “obtain periodic feedback” on any identified problems and suggestions for improvement. Plans submit minutes of these advisory committee meeting, along with the plan’s response to identified concerns to AHCA.163
Obtain copies of the advisory committee materials for the LTC Plans in your region and, depending on the information received, discuss appropriate strategic responses with your local ADRC and ICSP staff.
The multiple authorities related to Florida’s LTC program (and cited in the endnotes) are summarized below. These authorities include federal and state statutes and regulations (rules); contractual provisions between AHCA and the plans, the Waivers Requests and Approval between the state and federal government; and relevant case law, including Settlement Agreements or Orders.
42 U.S.C. § 1396n.
The 2016 federal Medicaid Managed Care regulations at 42 C.F.R. part 438, which represent a significant regulatory overhaul, increased transparency and modernized Medicaid’s managed care programs. Also, for the first time, CMS included specific provision pertaining to LTSS and defined LTSS for the purposes of managed care.164
Other relevant federal regulations include 42 C.F.R. § 435.217 (describing individuals who are eligible for home and community –based services), 42 C.F.R. § 440.180 (providing a description of and requirements for HCBS); and 42 C.F.R. § 441.301, et seq., (setting forth the requirements for providing HCBS through a waiver, including the requirements for a “person-centered plan and process.”)
In 2011, the Florida Legislature created Part IV of Chapter 409, Florida Statutes directing the Agency to create the Statewide Medicaid Managed Care (SMMC) program. The SMMC program has two key components: the Managed Medical Assistance program (MMA) and the Long-Term Care Program (which includes the LTC Waiver). Relevant sections of the Florida Statutes include Fla. Stat. 409.978- 409.985.
Florida Administrative Rules:
The state’s relevant administrative rules include the Rule pertaining to screening and wait list prioritization and release, Fla. Admin. Code Rule (or F.A.C.) 59G-4.193 and 59G-4.192, incorporating by reference the Florida Statewide Medicaid Managed Care Long-term Care Program Coverage Policy, March 2017.
Also relevant are the state rules for plan disenrollment F.A.C. 59G-8.600; the AHCA managed care fair hearings rules described at 59G-1.100, and the DCF income eligibility-related rules at F.A.C. 65A-1.710 et seq.
AHCA’s Core Contract:
The Agency for Health Care Administration’s (AHCA) has a Core Contract, which governs all SMMC plans – both MMA and LTC. Relevant subparts include:
Waiver Applications and Approvals
AHCA’s LTC Waiver applications (both original and renewal) set forth in detail all aspects of how HCBS will be provided, and were approved by CMS.
Department of Elder Affairs:
The DOEA “Statewide Medicaid Managed Care Long-term Care Program Enrollment Management System Procedures Manual," provides a detailed description of the process by which individuals are released from the wait list and the eligibility and enrollment process.
Appendix A: Abbreviations
Children's Medical Services Network
Department of Children and Families
Department of Health
Centers for Medicare and Mediaid Services
Health Maintenance Organization
Managed Medical Assistance
Managed Care Organization
Prepaid Ambulatory Health Plan
Primary Care Case Management
Primary Care Provider
Prepaid Dental Health Provider
Prepaid Inpatient Health Plan
Prepaid Mental Health Program
Provider Services Network
Special Terms and Condition
Supplemental Security Income
Temporary Assistance for Needy Families
Social Security Act
Agency for Health Care Adminstration
Every enrollee's person-centered plan of care must include:
Editable template (Word document)
Section 2 Endnotes
Note also that the Application for 1915(c) Home and Community –Based Services Waiver (an amendment of the 12/28/16 Waiver effective 12/01/17, while maintaining the maximum number of participants served at any point during the year at 6200, allowed for the unduplicated number of participants to range from 68,709 in Year 1 to 7033 in Year 5. https://ahca.myflorida.com/medicaid/Policy_and_Quality/Policy/federal_authorities/federal_waivers/docs/Current_Approved_LTC_Waiver_Document_Effective_12_1_17.pdf at page 27-28 of 230.
Section 4 Endnotes
26 Fla. Stat § 409.985 (3); Fla. Admin. Code R. 59G-4.192, incorporating by reference the Florida Medicaid Statewide Medicaid Managed Care Long-term Care Program Coverage Policy, March 2017, (hereafter the LTC Waiver Rule), March 2017 at 3.
27 Fla. Stat. § 409.985 (1)(3).
28 Fla. Stat. § 409.902(1); Fla. Admin Code R. 65A-1.712(1)(f); Fla. Admin Code R. 65A-1.713(1)(e).
29 Fla. Admin Code R. 65A-1.716(5)(b), see also: http://www.dcf.state.fl.us/programs/access/docs/esspolicymanual/a_09.pdf
30 Fla. Admin. Code R. 65A-1.713(1)(e) noting that establishment to an income trust for purposes of qualifying for HCBS must comply with the requirements set forth in Fla. Admin Code R. 65A-1.702(15).
31 Fla. Admin Code R. 65A-1.716(5)(a); see also http://www.dcf.state.fl.us/programs/access/docs/esspolicymanual/a_09.pdf.
Section 6 Endnotes
65 It is important to note that the current contract, https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Exhibit_II_B-LTC_2019-02-01.pdf, eliminates the prior requirement that the Plan must authorize and provide services to “Medicaid Pending” enrollees. The current Contract also eliminated the prior provision that allowed enrollees who lose Medicaid eligibility to continue enrollment in the Plan for 60 days, (referred to as the “SIXT period”) and eliminated the requirement that the Plan continue providing services during the SIXT period. See the prior contract here: http://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2018-02-01/EXHIBIT_II-B_Long_term_Care_(LTC)_Managed_Care_Program_Feb_1_2018.pdf at 5-6, (hereinafter referred to as “Prior AHCA-LTC.MCO Contract”).
66 Fla. Admin. Code R. 59G-4.193(3)(d)(3); Fla. Stat. § 409.285(2).
67 EMS Manual at 4, see also Fla. Stat. § 409.902(1). Note also: if the DCF denial was due to “failure to submit financial documentation,” requesting a hearing will allow the opportunity to either demonstrate that documentation was provided or allow additional time to find the requested documents.; and in such cases a hearing may not be necessary.
Section 8 Endnotes
75 Notably, Florida’s contract provides for a larger time frame (120 days) than the amount required under federal law (90 days); compare https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Attachment_II-Core_Contract_Provisions_2019-02-01.pdf with 42 C.F.R. 438.56(2)(c)(i).
76 Fla. Admin. Code R. 59G-8.600(b). See also Fla. Stat. § 409.969(2), providing that “the Agency may require a recipient to use the plan’s grievance process before the agency’s determination of good cause…” the Agency has implemented this requirement in the rule, see Fla. Admin. Code R. 59G-8.600(b). see also, https://ahca.myflorida.com/medicaid/Policy_and_Quality/Policy/federal_authorities/federal_waivers/docs/Final_1915(b)_LTC_Waiver.pdf at 33; 42 C.F.R. § 438.56.
It is worth noting that the prior contract contained additional reasons for good cause disenrollment that are no longer in the rule, including:
The current contract references the Florida Rule for good cause disenrollment. See https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Attachment_II-Core_Contract_Provisions_2019-02-01.pdf at 35.
Section 10 Endnotes
101 Fla. Stat. § 409.98, https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Exhibit_II_B-LTC_2019-02-01.pdf at 9. See also Snapshot, Appendix B.
102 LTC Waiver Rule at 4-8; Note respiratory services were deleted in recent 1915c application at 83-4 but still in contract and statute.
Section 12 Endnotes
114 Fla. Stat. §§ 409.982(4); see also 42 C.F.R . §438.68.
116 https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Exhibit_II_B-LTC_2019-02-01.pdf at 30-33. See also, 42 CFR 438.206; http://www.fdhc.state.fl.us/medicaid/Policy_and_Quality/Policy/federal_authorities/federal_waivers/docs/Final_1915(b)_LTC_Waiver.pdf at 16.
117 The Core Contract cites to the “reasonable promptness requirement in the federal Medicaid statute at 42 U.S.C. 1396a(a)(8). https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Exhibit_II_B-LTC_2019-02-01.pdf at 86. However, in contrast to the time standards for determining eligibility (45 days for eligibility not dependent upon disability determination; 90 days for determination based on disability), the federal law does not provide numeric standards for what constitutes “reasonable promptness” for services. Thus, disputes have arisen over what is “reasonably prompt” for different services. See, e.g. Doe 1-3 ex rel. Doe Sr. 1-13 v. Chiles, 136 F. 3d 709(11th Circ. 1998) (finding reasonable promptness provision at 1396a(a)(8) enforceable and requiring state to establish reasonable waiting list time, not to exceed 90 days for individuals eligible for IXCF/MR care.)
118 The Current Contract requires that enrollees receive medically necessary services “with reasonable promptness (within the meaning of that term as set forth in 42 U.S.C. §1396a(a)(8)).” https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Attachment_II-Core_Contract_Provisions_2019-02-01.pdf at 86. The Prior Contract’s Network Adequacy Standards (Section VI) required that plans “provide authorized HCBS within the timeframes specified in Section V, Covered Services.” In turn, Section V required plans to ensure services are started within fourteen (14) days after the plan of care is developed and that the plan of care is developed at the initial meeting (within 5 days of enrollment); thus, in the prior contract there was a requirement that enrollees should begin receiving medically necessary services within 19 days of enrollment.
119 https://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2019-02-01/Exhibit_II_B-LTC_2019-02-01.pdf at 12, see also 2016 federal regulations which were broadened to ensure that enrollees have access to ongoing sources of all appropriate care, including LTSS. 42 C.F.R. 438.208 (b).
122 LTC Waiver Rule at 2, Section 1.3.12.
Section 14 Endnotes