REGIONAL CAREGIVER AND NY CONNECTS FORUM CENTRAL NY March 5, 2014 Health Care Decision-Making SNF Part A Issues Medicaid Managed LTC
Health Care Decision-Making Decision Makers and Advance Directives
Constitutional Right to make decisions about health care treatment, including Life Sustaining Medical Treatment
Inherent Conflict Medical Ethics, Presumption & Ability vs. Patient s Wishes & Best Interests
Patient With Capacity An adult who has Capacity can always refuse LSMT
Capacity Legal & Low Standard Not merely eccentric, or poor chooser or has dementia Must simply be able to make an informed decision about treatment
The Problem Patient who lacks capacity needs LSMT
The Issues Who Decides What can he/she decide How does he/she decide
Incapacity Who Decides Patient Agent under HCP Guardian w/ authority Surrogate under FHCDA
Only a Court Order Can change the Decision-Maker Order (Patient, HCA, Guardian, Surrogate under FHCDA)
Patient Must receive oral and written notice of determination of incapacity if any indication of ability to comprehend
Patient If objects to decision of HCA, Guardian or Surrogate, patient s wishes prevail, unless Court orders otherwise.
Patient Advance Directives of Patient will prevail over contrary decision by HCA, Guardian or Surrogate
Patient KNOWN OR REASONABY ASCERTAINABLE WISHES ALWAYS PREVAIL
Health Care Proxy Competent Adult has legal right to name a Health Care Agent
Competence Presumed, unless Adjudicated, or A committee or guardian has been appointed
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
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
HCP May Specify instructions / limitations Have expiration date / event State wishes about organ / tissue donation
HCP ALSO SHOULD BE ON FORM PROVIDED
AGENT WHEN? When P is incapacitated, as determined By Attending ( recently ) In Writing In consult if for LSMT On notice to P & A, and
AGENT WHEN P does not object To incapacity determination or Treatment decision
AGENT WHAT Agent is Principal s alter ego if P could legally make decision, then A can make decision
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 )
AGENT - HOW P s Wishes As known to A, including P s religious / moral beliefs, or As ascertainable with reasonable diligence
DECISION Priority over everyone, except P Immunity for: Agent if made in good faith Provider - if followed in good faith
Non-Hospital Authority Case Law Agent has authority outside of hospital setting Non-Responsive, then no need for written incapacity determination
Non-Hospital Authority Statute Governor vetoed bill specifically authorizing Agent to decide where to transport nonresponsive patient.
CHALLENGES Validity of HCP Remove Agent for bad faith or unavailability Override bad faith decision Override decision where A did not follow procedure
CHALLENGES Special Proceeding By Provider, Family or Close Friend Limited successful bad faith challenges
FHCDA Last Resort Nobody else No Known Decision
Order Article 81 Guardian w/authority Spouse or Domestic Partner Adult Child Parent Sibling Close Friend
Application For Minors Institutional Setting Everywhere for hospice care
Decision Making Broad Cannot override known wishes of patient Based on known/ascertainable wishes or best interests (note no AN&H limitation)
Decision Making Additional Safeguards Consult for second opinion Ethics Review Committee
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
Medicare Part A Issues Observation Status Improvement Standard
WHY IT MATTERS SNF Coverage
Observation Status 3 Midnight Rule must be discharged from hospital after 3- day In-Patient stay to have Part A SNF coverage
Observation Status Dramatic Increase RAC s vs. URC s & Docs Readmission Penalties
Observation Status or In-Patient? If it walks like a duck and quacks like a duck..
Observation Status or In-Patient Find out status New York Law Notice within 24 hours BUT, does it really help?
What Can Patient Do? Request Status Change Similar presentations Community doctor help
What Can Patient Do? Prepare for Discharge Order for homecare? Homebound & required skilled care Has Homebound become more restrictive?
What Can Patient Do? Appeal Hospital Determination SNF Determination
Responses to OS CMS - 2 Midnight Rule RACs back off Allow hospitals to re-bill if mistake Postponed - September 2014
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
Improvement Standard Never the law Nevertheless - No improvement meant Medicare ended
Improvement Standard Jimmo Case January 2013 Did away with Improvement Standard
Improvement Standard CMS Implemented Jimmo 12/13 Updated Manuals Education Campaign
NEW STANDARD Skilled care will be covered by Medicare for therapy and nursing to maintain condition or slow decline not just for improvement
Medicaid Managed LTC Coming to (or already in) a county near you!!
MLTC What is it really?
MLTC HMO Model replaces Fee for Services Model for Community Based LTC
MLTC Mandatory for Dual Eligibles Over 21 Receiving 120+ days of community LTC services in calendar year
MLTC Medicaid CBLTC eligibility through DSS Service plan through MLTC Plan
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
MLTC Partially Capitated Cover LTC Services Regular Medicare and Medicaid for non LTC medical services PACE and MAP are fully capitated
MLTC Existing What Plans contract with preferred providers (LTC only) Schedule assessment Get written plan Compare and select (don t sign up at assessment)
MLTC Transition 90 days no change in services Keep same aide DO NOT SIGN UP BEFORE REQUIRED DATE
MLTC What happens after transition period? Still get aid continuing through appeal or only authorization period? Added step first must appeal to the Plan
MLTC Plan selects and pays providers How does this work for CDPAP Single vendor contract? Out-of-network hire?
MLTC Spend-Down Old Agency could not discontinue services for nonpayment New Plan MAY disenroll for nonpayment Pooled Trust & Request Provisional Medicaid
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)
MLTC New Home Care Only Applicants PCA, CDPAP, Lombardi MLTC Plan CHHA, PDN, ADHC with Agency (for now)
MLTC Likely Outcome Fewer choices and providers Increased NH placement for high need clients