May 31, Comments on North Carolina s Proposal entitled:

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1 May 31, 2012 Comments on North Carolina s Proposal entitled: NORTH CAROLINA STATE DEMONSTRATION TO INTEGRATE CARE FOR DUAL ELIGIBLE INDIVIDUALS Submitted to CENTER FOR MEDICARE AND MEDICAID INNOVATION Contract Number: HHSM C We are a coalition of organizations which have been following the development of the N.C. Department of Health and Human Services (the Department s) proposed demonstration for integrating care for dual eligible Medicare/Medicaid enrollees in North Carolina. We submit these joint comments in response to the Department s formal proposal. We support the concept of integrating care for these individuals, both under the two payer sources and among the various kinds of providers, as well as finally providing quality, multi-disciplinary care coordination to this group, as set forth in the Department s proposal. We also are pleased that the Department has rejected the troubling approach of other states to place this extremely vulnerable population under capitated managed care organizations or capitated provider arrangements, both of which create direct and powerful financial incentives to save money by restricting access to care for this vulnerable population. Nevertheless, we have some substantial concerns with the proposal, including in particular its shared savings financial model, its passive enrollment aspect, and its lack of detail. We therefore urge the Centers for Medicare and Medicaid Services ( CMS ) to require the Department to modify the proposal as set forth in the below comments and to provide much greater specificity before it is approved. Our particular concerns follow.

2 1. A significant but largely unexplained element of the proposal is the use of a new individual independent assessment that apparently will determine what services enrollees receive. The process is described (Proposal, p. 15) as an independent assessment process that will be conducted by trained assessors (Proposal, p. 18). There is not enough detail in the proposal to evaluate this major change to the way services are provided to this population. Assurances are needed to make sure that those performing assessments have no incentive to deny care, that assessment instruments are not used to override the treating physician s medical judgment, and to assure there is due process if care is denied on the basis of an assessment. Among the unanswered questions is the state s vague proposal are the following: A. Who will employ the people doing the assessments? How will their salaries be funded? B. Will the people doing the assessments be private contractors or state employees? What qualifications will the assessors have? Will they be supervised by a physician? C. Precisely what role will assessments play in decisions about what care will be provided and how will that mechanism work? D. Will enrollees receive notice and hearing rights whenever services are denied based on the results of an assessment? Who provides the notice, to whom do they appeal, and will they continue to receive their current level of services during the appeal? E. What role with the regional CCNC Network Dual Eligible Liaisons play with regard to the people doing the assessments? 2. The proposal includes creation of a web-based user friendly Beneficiary Portal as part of the new NC Health Exchange to basically follow their health care information and become more active partners. (Proposal, p. 14). Given that most people who are dually live in poverty, and given the age and disabilities of this population, we believe that the usefulness of this sort of website will be limited. People making under $10,000 a year or in nursing homes do not generally have internet connections and regular web access. We also have privacy concerns about a new web portal that provides comprehensive health information on this very vulnerable population. Any web portal must have significant security controls to prevent unauthorized use and to prevent misuse of the data for cherrypicking by providers. 3. The portion of the proposal which discusses shared savings and incentivized payments to providers to encourage cost savings (Proposal, p. 13) is an area of great concern to us, in particular because so little detail is provided. For example, the proposal gives no indication of the range of incentive payments, the portion of the incentive based on cost savings versus quality metrics, or what quality metrics will be used. Other unaddressed questions include the following: A. What percentage of overall payments would a provider expect in incentive payments if specific goals on cost cutting or quality of care were met?

3 B. Will the incentive payment structure and criteria for incentive payments be public and will there be a comment process? C. How will shared savings be allocated to providers? The proposal states (at page 31): A negotiated portion of the retrospective performance payments will be used to provide incentives for eligible providers to enhance their capacity, improve care outcomes, achieve shared savings and further reduce potential avoidable hospital use. Eligibility for participation in these financial incentives will require providers to meet defined capabilities and achieve beneficiary responsiveness, quality and cost targets. Specifics of these arrangements will be developed in concert with CMS. It is critical that this structure be described in much more detail before federal approval is given. Incentive payments structured in particular ways to health care providers have the potential to result in denial of necessary services. D. Incentive payments should be based primarily on measurement of health care outcomes providers should make more when patients are healthier and not result in providers tailoring care to hit specific cost reduction goals. At the very least, providers should not be eligible for incentive payments if costs go down but quality outcomes also go down. Otherwise, cost savings may be only short-term, with long-term costs actually increasing while health outcomes worsen. E. To assure consumers that incentive payments are based primarily on improving care for patients, the proposal should outline the specific measurements that will be used for making the payments and this information should continue to be publically available as the proposal goes forward and changes to incentive structures are made. F. Protections are needed to assure that neither physicians nor case managers are compensated or otherwise encouraged to steer enrollees into care that will produce short term savings but hurt quality, particularly without providing due process rights to challenge what effectively amounts to a verbal denial of services. 4. Enrollment protections are not sufficient. The proposal says it will use current CCNC enrollment procedures. However, under those procedures, Medicaid recipients are auto enrolled unless they opt out or are exempt. Current CCNC procedures don t require the DSS worker who enrolls to tell recipients they have the option to opt out and there is no other requirement for consumer assistance (beyond a letter with a toll free number) in order to assure that the recipient makes an informed decision. This enrollment process may be adequate for most recipients but not for the elderly, disabled, fragile population covered by this proposal. The state should be required to talk to all dual recipients about their choices before enrolling them and before assigning them to a particular provider. Consumers should be provided ample time and unbiased and comprehensive information appropriate to make the choice. There must also be very clear opt-out information made available at the outset and at regular intervals. This should include information on which of the individual s current health care providers are and are not part of a particular network, and should explain that the network may have a financial incentive to limit costly care due to the shared savings arrangement. Additionally, it must be clear to the individual that he/she can continue to use non-network providers without any additional costs or other penalties. Any written notices about the right to opt-out should include with them the specific form used

4 to elect to opt-out, and there must be multiple ways to opt-out, including via mail, telephone or through a provider. 5. Transition into the Plan will be a critical time for beneficiaries and without adequate safeguarding, continuity in treatment could suffer. We urge that previously authorized or ongoing services and supports, even if provided by a different primary care physician, continue for a reasonable time sufficient to allow an orderly and safe transition. We recommend that this transition time be up to six (6) months, with the ability to request a further extension in unique circumstances. 6. Dual eligible enrollees, because they are extremely vulnerable, will need ready access to assistance in advocacy, especially in light of potential financial incentives for providers to restrict access to care. The proposal is lacking in this regard. There is no mention of an ombudsman. The reference to a responsive customer service system in ii. Beneficiary Protection is brief and vague and does not indicate that it will be independent or perform an advocacy function. The proposal needs to be revised to clearly include an adequately funded, contracted for system that provides no-cost independent advocacy and ombudsman services to ensure that enrollees receive access to the full range of benefits and rights covered by both Medicare and Medicaid. In addition, the independent ombudsperson should receive for analysis regular reports on denials of services to enrollees either by the Department or providers on the basis of cost saving strategies, a determination that a requested service is not medically necessity, or the assessment process. This function will require independent advocates, not affiliated with the Department or any of the providers, with the sophisticated knowledge, expertise, and experience to represent consumers in informal advocacy, grievances and appeals, and, if necessary, state or federal litigation. Disability Rights North Carolina would be a good option for this role. Regardless of who performs it, the key is sufficient funding and truly independent, knowledgeable advocacy, under an arms-length contract. 7. The Plan must provide the greatest degree of consumer protection found in both Medicaid and Medicare. For example, there should be a single due process system for all long-term care services and supports and the Plan should leave no doubt that beneficiaries have the right to notice and hearing for any denial, reduction, modification or termination of services, including any informal, verbal denial of services by a case manager, and that benefits will not be interrupted until a final decision is rendered on appeal. Access to long-term care, behavioral health services or other long term services for chronic conditions during an appeal is required to ensure that this low income population will not need to pay for their care out of pocket, or more damagingly and likely, to forgo care or be left at risk without necessary long term care. We ask that these beneficiary rights including the right to continued services pending a final decision on an appeal of service reduction, modification or termination, regardless of the expiration of a previous authorization period, be clarified in the Plan. 8. Comprehensive benefits will be required to help people stay in their homes and communities and a broad commitment to the community-based model should be reflected in the array of flexible services and supports provided through the Plan, including adequate and appropriate support for behavioral health issues. Any integration of financing and coordination or delivery of long-term services and supports must occur in a way that ensures that the consumer receives services in the most integrated setting appropriate, preferably at home or in a community-based setting rather than in an institution, as required by the integration mandate of the Americans with Disabilities Act, and the US Supreme Court

5 decision in the Olmstead case. Currently the Plan lacks sufficient detail regarding flexible and innovative functional/behavioral supports and we urge that more specific details regarding this important area be incorporated before the Plan is approved for implementation. 9. The proposal mentions new benefits but provides no detail concerning same. The program should be required to use a particular portion of savings toward expanded benefits for the enrollees. On page 21, under ii. Supplemental benefits and/or other ancillary/supportive services the reference to the CAP-Choice program is so vague that the intent is unclear. We urge that further details be provided to the public about the benefit array and new benefits before approval of the Plan. CONCLUSION After reviewing all of our comments, we are hopeful that CMS will require the state to modify and clarify its proposal to address these questions and concerns. If any of our questions or our suggestions are unclear, we invite both the state and federal agencies to contact us to discuss them further. Thank you in advance for consideration of our comments. Sincerely, Adam Searing, JD, MPH Project Director, Health Access Coalition North Carolina Justice Center adam@ncjustice.org Corye Dunn Director of Public Policy Disability Rights North Carolina Corye.Dunn@disabilityrightsnc.org Douglas Sea Senior Attorney Legal Services of Southern Piedmont dougs@lssp.org Abby Emanuelson VP Public Policy- NC & SC National MS Society Abby.Emanuelson@nmss.org