REGIONAL CAREGIVER AND NY CONNECTS FORUM CENTRAL NY March 5, Health Care Decision-Making SNF Part A Issues Medicaid Managed LTC

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1 REGIONAL CAREGIVER AND NY CONNECTS FORUM CENTRAL NY March 5, 2014 Health Care Decision-Making SNF Part A Issues Medicaid Managed LTC

2 Health Care Decision-Making Decision Makers and Advance Directives

3 Constitutional Right to make decisions about health care treatment, including Life Sustaining Medical Treatment

4 Inherent Conflict Medical Ethics, Presumption & Ability vs. Patient s Wishes & Best Interests

5 Patient With Capacity An adult who has Capacity can always refuse LSMT

6 Capacity Legal & Low Standard Not merely eccentric, or poor chooser or has dementia Must simply be able to make an informed decision about treatment

7 The Problem Patient who lacks capacity needs LSMT

8 The Issues Who Decides What can he/she decide How does he/she decide

9 Incapacity Who Decides Patient Agent under HCP Guardian w/ authority Surrogate under FHCDA

10 Only a Court Order Can change the Decision-Maker Order (Patient, HCA, Guardian, Surrogate under FHCDA)

11 Patient Must receive oral and written notice of determination of incapacity if any indication of ability to comprehend

12 Patient If objects to decision of HCA, Guardian or Surrogate, patient s wishes prevail, unless Court orders otherwise.

13 Patient Advance Directives of Patient will prevail over contrary decision by HCA, Guardian or Surrogate

14 Patient KNOWN OR REASONABY ASCERTAINABLE WISHES ALWAYS PREVAIL

15 Health Care Proxy Competent Adult has legal right to name a Health Care Agent

16 Competence Presumed, unless Adjudicated, or A committee or guardian has been appointed

17 HCP Must Be in writing Identify P and A Be signed and dated by P Be In presence of two Witnesses Be signed by two Witnesses

18 HCP Should State A knows AN&H wishes Appoint Alternate Agent(s) Have good contact info for A(s) Have P & W s write in date

19 HCP May Specify instructions / limitations Have expiration date / event State wishes about organ / tissue donation

20 HCP ALSO SHOULD BE ON FORM PROVIDED

21 AGENT WHEN? When P is incapacitated, as determined By Attending ( recently ) In Writing In consult if for LSMT On notice to P & A, and

22 AGENT WHEN P does not object To incapacity determination or Treatment decision

23 AGENT WHAT Agent is Principal s alter ego if P could legally make decision, then A can make decision

24 AGENT HOW After consult In accordance with P s wishes, or In P s best interests, (Except for AN&H where only per P s wishes )

25 AGENT - HOW P s Wishes As known to A, including P s religious / moral beliefs, or As ascertainable with reasonable diligence

26 DECISION Priority over everyone, except P Immunity for: Agent if made in good faith Provider - if followed in good faith

27 Non-Hospital Authority Case Law Agent has authority outside of hospital setting Non-Responsive, then no need for written incapacity determination

28 Non-Hospital Authority Statute Governor vetoed bill specifically authorizing Agent to decide where to transport nonresponsive patient.

29 CHALLENGES Validity of HCP Remove Agent for bad faith or unavailability Override bad faith decision Override decision where A did not follow procedure

30 CHALLENGES Special Proceeding By Provider, Family or Close Friend Limited successful bad faith challenges

31 FHCDA Last Resort Nobody else No Known Decision

32 Order Article 81 Guardian w/authority Spouse or Domestic Partner Adult Child Parent Sibling Close Friend

33 Application For Minors Institutional Setting Everywhere for hospice care

34 Decision Making Broad Cannot override known wishes of patient Based on known/ascertainable wishes or best interests (note no AN&H limitation)

35 Decision Making Additional Safeguards Consult for second opinion Ethics Review Committee

36 LSMT Extraordinary burden on terminally ill or permanently unconscious patient, or Inhumane or extraordinarily burdensome involving pain and suffering for patient with irreversible or incurable condition

37 Medicare Part A Issues Observation Status Improvement Standard

38 WHY IT MATTERS SNF Coverage

39 Observation Status 3 Midnight Rule must be discharged from hospital after 3- day In-Patient stay to have Part A SNF coverage

40 Observation Status Dramatic Increase RAC s vs. URC s & Docs Readmission Penalties

41 Observation Status or In-Patient? If it walks like a duck and quacks like a duck..

42 Observation Status or In-Patient Find out status New York Law Notice within 24 hours BUT, does it really help?

43 What Can Patient Do? Request Status Change Similar presentations Community doctor help

44 What Can Patient Do? Prepare for Discharge Order for homecare? Homebound & required skilled care Has Homebound become more restrictive?

45 What Can Patient Do? Appeal Hospital Determination SNF Determination

46 Responses to OS CMS - 2 Midnight Rule RACs back off Allow hospitals to re-bill if mistake Postponed - September 2014

47 Responses to OS Class Action LOST Congressional Action Improving Access to Medicare Coverage Act of 2013 OS still get Part A SNF Likely to pass, but

48 Improvement Standard Never the law Nevertheless - No improvement meant Medicare ended

49 Improvement Standard Jimmo Case January 2013 Did away with Improvement Standard

50 Improvement Standard CMS Implemented Jimmo 12/13 Updated Manuals Education Campaign

51 NEW STANDARD Skilled care will be covered by Medicare for therapy and nursing to maintain condition or slow decline not just for improvement

52 Medicaid Managed LTC Coming to (or already in) a county near you!!

53 MLTC What is it really?

54 MLTC HMO Model replaces Fee for Services Model for Community Based LTC

55 MLTC Mandatory for Dual Eligibles Over 21 Receiving 120+ days of community LTC services in calendar year

56 MLTC Medicaid CBLTC eligibility through DSS Service plan through MLTC Plan

57 MLTC Will apply to new and existing recipients on and after changeover date Announcement Letters 60 Day Letters Select plan, or Be assigned by State

58 MLTC Partially Capitated Cover LTC Services Regular Medicare and Medicaid for non LTC medical services PACE and MAP are fully capitated

59 MLTC Existing What Plans contract with preferred providers (LTC only) Schedule assessment Get written plan Compare and select (don t sign up at assessment)

60 MLTC Transition 90 days no change in services Keep same aide DO NOT SIGN UP BEFORE REQUIRED DATE

61 MLTC What happens after transition period? Still get aid continuing through appeal or only authorization period? Added step first must appeal to the Plan

62 MLTC Plan selects and pays providers How does this work for CDPAP Single vendor contract? Out-of-network hire?

63 MLTC Spend-Down Old Agency could not discontinue services for nonpayment New Plan MAY disenroll for nonpayment Pooled Trust & Request Provisional Medicaid

64 MLTC Nursing Home Plan covers if in network If Medicare primary, Plan covers co-pay regardless Client can opt for regular NH Medicaid (NH not in Plan)

65 MLTC New Home Care Only Applicants PCA, CDPAP, Lombardi MLTC Plan CHHA, PDN, ADHC with Agency (for now)

66 MLTC Likely Outcome Fewer choices and providers Increased NH placement for high need clients

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