New York law, as it currently stands, requires people that receive both Medicare and Medicaid and need long term care services (such as home care) enroll in a Managed Long Term Care Plan (“MLTC”). These MLTCs are supposed to assess the needs of their members and then provide the appropriate level of services to ensure that these needs are met. However, MLTCs are insurance companies, and whether the company is nonprofit or for profit, there is a bottom line to worry about regardless of how the company is structured. This means that there is a financial incentive for the MLTC to provide less service to members. If we take a look at a recent case that I handled for a client, you will see why this is troublesome.
I had a client with a diagnosis of dementia, pressure ulcers, and incontinence. The client was also totally dependent on her caregivers for bed mobility and toileting. The client needs to be turned from side to side while in bed to offload pressure from ulcer site every two hours and have her diaper changed /be cleaned as needed to enable healing of ulcers, promote skin integrity, and prevent infection. In short, my client needed constant 24 hour home care, and there was more than adequate medical documentation to prove it. The client was initially receiving 12 hours per day of home care through her secondary health insurance provider – an MLTC, and the client’s daughter requested an increase to 24 hour split shift home care in order for the client to safely complete the aforementioned Activities of Daily Living (“ADL”). This request was denied by the client’s MLTC, whose rationale was that 24 hour live-in home care would be adequate to address the client’s ADL needs.
At this point, you may be wondering about the difference between 24 hour live-in home care and 24 hour split shift home care. See the chart below for details.
Differences Between Live-in and Split Shift 24 Hour Home Care 
Live-in care is appropriate for people that may need assistance using the restroom once or twice at night, which would allow the aide to get the sleep to which he or she is entitled. 24 hour split shift care is appropriate for people that have to be turned in bed every two hours or have very frequent toileting needs where an aide will not get five uninterrupted hours of sleep on a regular basis. There are two main differences between the previously described types of home care: the required period of sleep in the patient’s home, and the cost of each type of care. An MLTC will pay for 91 hours per week of labor with live-in home care, and 168 hours of labor with split shift home care. You can see that there is a substantial financial incentive to keep people that need 24 hour home care in the live-in category.
Considering my client’s medical conditions and the frequency with which she requires assistance, it would not be possible for an aide authorized for live-in home care service to provide the level of care prescribed by my client’s medical practitioners and get the requisite amount of sleep. My client’s daughter rejected the MLTC’s offer of live-in home care and began performing the overnight home care duties on her own, which was unsustainable because she also has a full time job. This is when my client’s family contacted me for assistance. To settle this issue, I requested a fair hearing (an administrative law proceeding before an administrative law judge). Anyone that has ever had a dispute with a health insurance provider may be wondering why my client was able to appear before a judge rather than having the decision of the insurance company be the final say. This is because MLTCs are funded by Medicaid, which is a joint federal and state entitlement. MLTCs contract with the state of New York and are acting as agents of the state Medicaid program, and are subject to all the regulations governing Medicaid.
Bringing the dispute before a neutral party, the administrative law judge, allows each party – my client and her MLTC – to present evidence and have a decision rendered on the merits of the case. In general, the party seeking to change the status quo has the burden of proof, meaning my client and I had to prove that split shift care was necessary. I contacted the grievance and appeals department at the MLTC and told them I was representing their member and requested the documentation upon which the denial of my clients request was made, I told them that this was not a frivolous request, and asked them to take another look at the situation. The MLTC wanted to conduct a sleep study where they would send a nurse to observe what is occurring overnight to get a more accurate picture of my client’s overnight needs. My client and I readily agreed to this. In the meantime, I was gathering evidence from my client’s physician and caretakers, and going through the documentation provided by the MLTC. The MLTC was also sending a wound care nurse to assist with the treatment of my client’s pressure ulcers. I requested and received the notes from these visits from the MLTC along with the results of the sleep study. I now had everything needed to put together a convincing case.
I had the results of multiple nursing assessments by the MLTC all stating that my client has a diagnosis of dementia, is completely and totally dependent on others for the completion of all ADLs (including toileting and bed mobility, which are central to this case), the notes from the wound care nurse sent by the MLTC stating that my client must have her diaper changed whenever soiled as part of the wound care routine, a letter from my client’s doctor stating that my client must be turned from side to side at least every two hours to completely offload pressure from the ulcer, testimony from my client’s family about her needs, and the results of the MLTC’s sleep study showing that my client is turned, repositioned and assisted with diaper changing every two hours. Because the client and her family were struggling with the provision of overnight care, I was going to do something I normally do not: lay out my entire case to the MLTC.
Both parties typically exchange all documentation that will be submitted in advance so there are really no surprises during a hearing. However, I was going to outline my entire case – citing regulations, telling them what testimony my witnesses were going to provide, essentially walking the MLTC through my case step by step – with the hope that they would see that they were not going to prevail and would provide my client with the requested and necessary increase in home care without having to wait for the hearing to occur and the several weeks that it takes the judge to issue a decision. Bear in mind that I have had a two year relationship with the people in the grievance and appeals department; they know who I am and what I do, and they know I have a good record against them in these types of disputes. In short, they are aware that I know what I am doing. With a sense of cautious optimism, I called the MLTC.
ME: I would like to go over my client’s case with you. I think that after you see all the evidence, you might change your mind about the denial.
MLTC: Sure, what do you have?
ME: Your own nursing assessments show that my client is totally dependent on others for bed mobility and toileting. The wound care nurse from your organization says that my client must be cleaned and changed as soon as her diapers become soiled to prevent infection. You have the note from a physician specializing in wound care that ordered my client to be turned in bed every two hours to keep the ulcer completely free of pressure. The two nights sleep study performed by your organization’s nurse documents the high frequency of my client’s changing and cleaning needs along with turning and positioning every two hours. You are also aware that my client’s family is not able to provide overnight care because they are employed full time.
MLTC: Yes, we have all this documentation.
ME: I know that. My point is that all of this evidence, your organization’s own documentation,
supports my client’s case and does nothing for your position. All we have to do is prove that my client’s overnight needs are so frequent that a live-in aide will not get five hours of sleep on a regular basis. I think you should reconsider the denial. My client needs the services and the judge will decide in favor of my client. Further delay only hurts my client and her family.
MLTC: We are going to maintain our denial.
Me: …
I arrived at the hearing location a week or so later and sat down at the table. Only the judge and I were in the room. The representatives from my client’s MLTC typically appear to defend their decisions rather than letting the submitted documentation stand on its own. This time, the MLTC had decided that it was not worth the time to send anyone to defend its denial of my client’s request for services. I went through my case before the judge, and afterwards, I felt completely confident about what the ruling would be. The judge, thankfully, was very quick in issuing a decision. We received a favorable decision inside of two weeks. That same day, the MLTC authorized split shift home care, and my client is receiving the care she needs.
My client received the care she needed from the organization that was supposed to provide it – eventually, but not without a judge ordering the MLTC to provide it. Here, my client’s daughter was intelligent and understood the issues at play. Perhaps most importantly, the client’s daughter understood that my client had appeal rights and was able to be an effective advocate. While she would not have known to request additional documentation from the MLTC, and would not have known the applicable laws and regulations, I am sure my client’s daughter could have presented the facts regarding her mother’s needs to the judge and come away with a victory. In this case, the MLTC had multiple opportunities to voluntarily provide the care that every medical professional prescribed, and that the MLTC knew she needed, but they waited until they were forced by a judge to do so. What happens to people who do not understand their needs or rights, or do not have capable family members or friends to act as advocates on their behalf? These people will have to hope that their MLTC will provide the necessary care so that they can continue to live safely in the community. Unfortunately, this is in doubt in the current long term care environment where health care decisions are made by medical directors that have financial incentives to limit the provision of services.