MEMORANDUM

 

TO:	The Performance Standards Consultant Team, Attention Karen Llanos, via e-mail
FROM:	Marilyn Holle and Susan Berke Fogel
RE:	Comments to the Draft Recommendations for Performance Standards for Health Plans Serving People with Disabilities and Chronic Conditions
DATE:	November 9, 2005

We appreciate the opportunity to comment on the draft report. We are concerned, however, that the delay in issuing the draft report has meant that there is a shortened time for comment and therefore less opportunity for meaningful comment.

We appreciate receiving a copy of the MCO two-plan contract yesterday.

Our review – and the review by others – would have been helped if the recommendations had been separately pulled out.

We sometimes saw a disconnect between an aspirational narrative and the translation of that narrative into concrete recommendations – as discussed below with respect to issues around the State’s readiness to address its current and projected expanded responsibilities with respect to managed care for persons with disabilities and chronic conditions.

We incorporate into our comments the following from Protection & Advocacy’s website:

(1)  Necessary elements in any managed care expansion incorporating persons with disabilities and seniors prepared by health advocates – namely the National Health Law Program, the Western Center on Law and Poverty in addition to PAI – http://www.pai-ca.org/BulletinBoard/95Oppose.pdf

(2)  PAI’s catalog of consumer protections needed in any managed care plan incorporating persons with disabilities including seniors – http://www.pai-ca.org/BulletinBoard/ABD-MgdCare-checklist08302005.pdf

We start with issues that do not squarely fit in just one section and then proceed through the report.

Failure to recommend that the MCO contract clarification of the MCO’s obligations to ensure that Medi-Cal beneficiaries are able to get to and from medical appointments

The only place in the draft report where MCOs’ obligation to ensure enrollees are able to get to and from medical appointments is referenced (albeit obliquely) is in Section 8.A. on page 68: “…if a child is receiving services through an MCO for a chronic condition such as asthma, then the MCO would coordinate all the asthma-related care (e.g., ensure that all needed medical appointments are scheduled, transportation arranged, . . . .”  Since the State is transferring to the MCO its administrative obligations under 42 CFR § 431.53,[1] the MCO contract should say that explicitly. It does not. Exhibit A, Attachment 13, Member Services 4.D.11. simply says to “[i]nclude [in the member services guide] a description of both medical and non-medical transportation services and the conditions under which non-medical transportation is available.”[2]

So that there is no misunderstanding that the MCO is the entity responsible for the State’s obligations under 42 CFR § 431.53 with respect to those services for which the MCO is responsible, we urge a recommendation that the contract expressly state that. And, because the cost of compliance with Section 431.53 is not captured in the fee-for-service costs that will be used as the basis for capitation, there should be a separate element in the rate to capture the transfer of administrative funds to implement the MCO’s obligation under Section 431.53. Expressly stating the transfer of the State’s obligation under Section 431.53 to the MCO and a line item in the budget for that item is necessary to protect the right of enrollees with disabilities and chronic conditions. Because enrollees with disabilities and chronic conditions need services from physicians and other providers with expertise and experience addressing their needs, that may mean traveling outside the plan’s geographic boundaries. As reported by commercial plan representatives participating, the express requirement delegating to the MCO the State’s obligations under Section 431.53 and a separate line item in the payment to the plan is consistent with practice in other states.

Clarification of the use of the word “Access”:

The term “Access” is used in two ways in the Report:

First is the term’s traditional Medicaid meaning as used in 42 USC § 1396a(a)(30)(A), namely that enough providers are enlisted “so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” The measure of “care and services available to the general population” has been interpreted to mean those with private health benefit coverage.

Second is the term’s meaning in the context of Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. In that context access addresses the absence of architectural, equipment, programmatic barriers, ability to receive program benefits, etc.

We suggest that, for clarity, references to access under the second meaning be made clear by using the term “504/ADA access.” That confusion is highlighted in Section 3, “Network Capacity.” Although discussion of “(a)(30)(A))” access was initially covered under this section and 504/ADA access addressed separately, “(a)(30)(A)” access including what types of providers the MCO contract should require to be included in the network and the specificity needed to do so, that aspect of access has disappeared from this section and the Draft report. This issue, however, is addressed under Section 2.

Prevent Adverse Selection within MCOs

Although not addressed in the report, a critical issue for persons with disabilities and chronic conditions is the access barrier of adverse selection within a plan. The consequence of the MCO delegating risk is the economic incentive to “cherry pick” those who are expected to have lower costs and to discourage or “lemon drop” patients with complex medical needs who can be expected to cost more. The result is that those providers and IPAs that excel at serving the more complex and costly end of the spectrum of patients with disabilities and chronic conditions will find themselves with a disproportionate share of patients with expensive care needs but without adequate compensation to treat them. Absent some way of addressing adverse selection - i.e., by stop loss or procedures for fee-for-service reimbursement - the IPAs that attract the more expensive Medi-Cal recipients with disabilities can be expected to ration access to slots. 

Just as the State is developing MCO rates for persons with disabilities and chronic conditions that are risk adjusted, so should MCOs reimburse providers taking into consideration the nature and severity of the medical needs of their members, or provide stop loss protection so that adverse selection within plans is mitigated. Plans should be required to establish a methodology whereby they take into consideration risk factors in their reimbursement mechanisms. The department must approve the methodology before the MCO enrolls persons with disabilities and chronic conditions. MCOs must be required to report annually and be reviewed by an outside actuary or auditor to ensure that policies to prevent adverse selection are effectively implemented. 

Each Medi-Cal MCO should explain how it will prevent or minimize the impact of adverse selection within the plan such as where enrollees with complex and expensive care needs gravitate to particular providers, where providers are paid on a capitated or other risk basis, and where access may be rationed including access to specialists and specialty care centers.

“A Necessary State Infrastructure” or State Readiness, pages 6-7

The report recognizes the importance of the State’s responsibility to lay the groundwork before any mandatory enrollment can begin. The “key elements or ingredients for success” noted in the report are very good and provide a good framework for recommendations. Not all, however, are supported by concrete recommendations in the body of the report, resulting in an aspirational list rather than an action plan. The most serious omissions relate to the systems, policies and procedures the State must have in place before it begins to implement mandatory enrollment of the SPD population to ensure it can perform its role in oversight, monitoring and enforcement of the contract terms. In particular, before it can begin mandatory enrollment – and as it should be recognized in “recommendations to State Agencies” - the state should:

1) Establish specific transition standards applicable to both the managed care plans and to the entities brokering or administering the enrollment process to ensure that there is no disruption in access to healthcare during the transition and enrollment process, that existing and desired treatment relationships are maintained and protected during the transition process, and that the Medi-Cal recipient is assisted in exercising his or her right to request any exemption or procedure that will delay or avoid mandatory enrollment when necessary for continuity of care purposes and/or to protect desired treatment relationships. [See additional comments re Transition planning.]

2) Establish procedures to ensure continuity of care when the managed care plan is no longer available either because it stops serving Medi-Cal beneficiaries or because the Department has determined that it is not in compliance with its contract terms.

The Department must demonstrate that it has written procedures in place that enable the Department to deal promptly with situations in which a plan will no longer provide services to Medi-Cal beneficiaries. The procedures must provide for prompt action in cases in which a managed care plan becomes insolvent or falls below the tangible net equity based on enrollment ( NOTE: Plans are required to set aside a certain amount of funds based on number of members. The amount should be higher for those who are disabled), removes itself from the Medi-Cal market, loses necessary accreditation, or other circumstances. The procedures must provide for seamless and immediate access to continuing care for beneficiaries with disabilities and chronic conditions.

3) Enforcement of compliance with contract terms is critical. The State must have an enforceable process, including intermediate sanctions (such as financial penalties or withholds and additional enrollment termination) and contract termination, to deal with plans that consistently or repeatedly perform poorly. Beneficiaries should have the right to enforce this provision and to require the department to follow the process.

In particular, the state must establish procedures and allocate resources to closely monitor network capacity during the transition period and six months thereafter including by the monitoring of the time between asking for and getting an appointment including urgent care appointments.  “Closely monitoring” means receiving information about access and capacity within 30 days of the generation of data. When the contemporaneous data indicates that a managed care plan does not have the network capacity to absorb the new enrollees at the rate they are being referred, the department should take all necessary steps to ensure adequate capacity during the enrollment period including by suspending new enrollments, slowing the rate of enrollment or any other action to enforce performance and access standards.

Finally, the state should look at an MCO’s history with Medi-Cal as a predictor of how the MCO will meet its reporting and data collection responsibilities. For instance, what about requiring that an MCO achieve a threshold level (say 93%) in submitting encounter data on their current TANF population? What about setting threshold levels in HEDIS scores on currently enrolled TANF folks?

Foundation for a Health Care Delivery System
Section 1, pages 10-16

Information Sharing and the Initial Health Assessment

With respect to 1.B.2, the recommendation for MCO contract does not adequately address what happens to a beneficiary when the MCO is unable to contact the beneficiary for the initial screen. The report acknowledges the additional challenges that face beneficiaries but lacks a solution by conflating “not responding” with “refusing to participate” in a health screen:

“If the MCO is unable to complete the screen within three attempts using different mechanisms (e.g., mail, telephone, in person visit) within 90 days, or in the event that a member refuses to participate in a health screen, the MCO should document the refusal and encourage the member to schedule an appointment with his or her PCP.”

The three-attempt policy may not be adequate outreach to the SPD population. Plans should be required to develop more intensive strategies for reaching SPD beneficiaries which may include contracting with local entities – e.g., entities providing Linkages or MSSP case management services – with experience providing case management services to medically vulnerable persons and to persons who, because of their disabilities or chronic conditions, have problems navigating any system.

Enrollment and Member Services
Section 2, pages 17-22 [outline numbering off]

Auto Enrollment Safeguards Must be in Place Prior to Implementation of Mandatory Managed Care

With respect to 2.A and 2.B.1., missing from the report are recommendations to implement safeguards against disruption of patient care as a result of auto-enrollment. As noted in a recent George Washington University publication “Achieving Readiness in Medi-Cal Managed Care Expansion for Person with Disabilities: Issues and Process” [Rosenbaum et al, August 2005], any implementation of auto-enrollment for the SPD population is fraught with challenges. Auto-enrollment has potential for disruption of care with resulting serious health consequences of beneficiaries.

Rosenbaum identifies a number of safeguards that must be addressed prior to implementation of mandatory managed care including (1) procedures to ensure an individual is enrolled in a plan in which his or her primary care provider participates (whenever that provider does participate in a plan), (2) the qualifications of plans allowed to accept auto-enrolled persons, (3) the level of information on health status and special needs that must accompany auto-enrollment, (4) the timeframes given to plans to assign patients to physicians and make initial contact, (5) the opportunity for plan switching post-auto-enrollment.

Transition Planning

With respect to 2.B.1, we support the key element of ensuring continuity of care during transition from fee-to-service to managed care. However, the specific recommendations must be stronger. First of all, 60 days may be too short to complete the transition. Managed Care organizations should be required to pay out-of-network providers at FFS rates for up to six months during the transition period to ensure that beneficiaries are actually receiving care through the plan, not merely enrolled. Access to FFS Medi-Cal should not be cut off until a care plan is in place as noted below, and the beneficiary is actually receiving services. Merely being enrolled in an MCO is not sufficient to comply with an actual access standard.

Second, with at-risk individuals – those also likely also to need care management – identified by the State, the enrollment broker, and the MCO itself, the MCO should be required to develop a care and coordination plan developed with the involvement of the enrollee and/or representative and subject to their approval within 30 days of initial enrollment with the goals of a smooth transition to managed care without disruption of care, obtaining services to support the enrollee’s highest level of functioning and to support integration into the community. If a plan is unable to meet the requirements of this paragraph, the Department should suspend enrollment until such time as the plan is able to comply.

In order to achieve the goal of continuity of care, where providers in the enrollee’s care system are not also managed care providers and do not wish to become managed care providers generally and where the enrollee wishes to maintain treatment and care management relationships with those providers, the MCO should be required to include the providers within their network for the limited purposes of continuity of treatment unless the provider is unwilling to accept the plan’s noncapitated payment rates and provided there are no competency or quality of care reasons why the provider could not be a managed care plan provider generally.

Advocacy & Written Materials

With respect to Sections 5.B.2., we urge that there be a recommendation to State Agencies that the department support external advocates – we recommend the member agencies of the Health Care Alliance Network, www.healthconsumer.org – through Medicaid administrative monies. Just as Counties delivering targeted case management and Local Education Agencies may use nonfederal funds to match federal Medicaid funds, so too could external advocates using state IOLTA funds. This has been done in New Mexico and, we think, other states as well.

With respect to Sections 5.B.2. and 5.B.3., in order for external advocates like family member advocates with Family Resource Centers, Protection & Advocacy, Clients Rights Advocates serving Regional Center clients, and legal services programs including those in the Health Consumer Alliance Network - as well as the more sophisticated Medi-Cal recipients - to be effective at answering questions, navigating the system, and resolving disputes at the lowest level, advocates and Medi-Cal recipients need access via the web to the Provider Manual. For instance, the provider material on CalOptima’s website includes detailed information about the CalOptima direct program.  The contract recommendations must include a requirement to post the MCO’s Provider Manual on the web. External advocates are a key part of the system for ensuring MCO accountability in the context of assisting individual clients. Here is how we would amend the recommendation on page 21.

Recommendations for MCO Contract Written materials must be available upon request in alternative formats in a timely fashion. For the member services guide, the MCO will make such materials available within seven business days. For all materials, the MCO will have procedures in place for converting materials to alternative formats when requested by a member. The MCO shall have a mechanism for a member to make a standing request for all materials to be provided in a specified alternative format. The MCO shall post its provider manual and bulletins on its website.

Advocacy responsibility also includes an obligation to refer enrollees to external advocates that provide assistance free of charge. Therefore we recommend that the Contract Recommendation on page 20 include a sentence to that effect:

Recommendations for MCO Contract The MCO shall develop a policy for providing support to beneficiaries with chronic conditions and disabilities. This responsibility includes assisting members with complaint and grievance resolution, and investigating and resolving access and cultural sensitivity issues. In addition, the MCO shall designate a staff person with responsibility for overseeing disability-related issues, including monitoring compliance with the MCO’s ADA compliance plan, functioning as a contact for beneficiary advocacy groups, and working with these groups to identify and correct beneficiary access barriers. The MCO also shall provide information to beneficiaries about agencies and entities providing free advocacy services.

Network Capacity and Accessibility
Section 2, pages 23-32

504/ADA Accessibility

With respect to Section 2.B. and the first summary recommendation, we strongly urge the recommendation expressly provide that there be an initial 504/ADA accessibility checklist covering the program as a whole including through accommodation policies. We believe that checklist is one that should be developed by the Department with consumer assistance. Improvement is good but there needs to be, looking at the program as a whole, an initial minimum standard that has to met and a standard that goes beyond physical and sensory barriers.

Geographic access and access to expertise

Time and distance standards are very important to ensure beneficiaries can access the care they need. However, as the report acknowledges, people with disabilities and chronic conditions have often spent years finding providers with the appropriate clinical knowledge and expertise, and have established important relationships with those providers. In some cases, these criteria of expertise and relationship are more important to quality patient care than geographic proximity. However, lack of appropriate transportation is often a barrier to care particularly when needed to get to providers outside the geographic area. That is another reason why the MCO contract should specify the MCO’s obligation to ensure non-medical transportation.

To ensure adequacy of provider networks,
MCO contract must require greater specificity about the
Kinds of providers that need to be in the MCO’s provider network

Currently the contract simply lists the types of specialists that are currently required in Knox-Keene plans[3] and references “traditional and safety net providers.” The provider scope is not necessarily compatible. For instance, there is no obligation under Knox-Keene Act to provide durable medical equipment.

First, any reference to specialists must include references to specialty care centers – as does the Knox-Keene Act at Health & Safety Code § 1374.16. Specialty care centers including those certified by the Genetically Handicapped Persons Program GHPP serving persons with diagnoses of sickle cell, Frederich’s ataxia, etc., are part of the network relied upon by persons with disabilities and chronic conditions who are in the fee-for-service system. Specialty care centers are usually located in hospital outpatient departments and clinics, services that are mandatory under the federal Medicaid Act and a type of service that must be available to Medi-Cal beneficiaries whether or not they are in managed care. 42 USC § 1396d(a)(2)(B). Further, specialty care centers and centers of excellence enable a person with a disability or chronic condition who requires care by multiple disciplines and providers to receive that care in a single location. 

Second, there are types of providers that a review of Medi-Cal fee-for-service claims histories will show are types that have historically been relied upon by persons with disabilities. They should be listed in the contract at least illustratively. Those include inpatient and outpatient rehabilitation services through providers accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF); applied rehabilitative technology; speech pathologists including those experienced in working with nonverbal individuals, persons with developmental disabilities, and persons who require speech generating devices; occupational therapy, orthotic providers; physical therapy, low-vision centers, and other services with expertise in working with seniors and persons with disabilities. With respect to DME and wheelchairs, the MCO must be required to provide beneficiaries access to assessments and evaluations for wheelchairs that are independent of durable medical equipment providers, that include when necessary a home assessment, and that, for persons who may need a power wheelchair, provide an opportunity to try out different operating systems. The plan should assure access to seating clinics that provide an “urgent care” level of access for persons who run into problems with their wheelchair cushions or seating or bracing system in order to avoid the development of medical complications.

Benefit Management
Section 4, pages 33-37

Out of network

A key criterion triggering the need to go out of network is the absence of an available within-network provider with the experience and expertise to address the beneficiary’s medical needs. Below is how the recommendation at page 36 under 4.B.3 should be amended:

Recommendations for MCO Contract The MCO shall arrange for the provision of specialty services from specialists or a specialty care centeroutside the network if unavailable within the MCO’s network, when determined medically necessary including because there is no provider available within the network that has the necessary experience and expertise in addressing an enrollee’s medical needs.

Definition of Medical Necessity

We agree with Laurie Soman that the recommended definition of medical necessity should include the EPSDT standard.

Case Management
Section 5, pages 38-47

Missing from the recommendations for inclusion in the MCO contract (page 40) is an express requirement that the MCO provide care management – or arrange for care management to be provided - in addition to that which may be provided by the primary care physician. The recommendations are insufficiently concrete.

We also believe that the additional care management obligations should be funded. We recommend that the capitation rate be supplemented by a contract to deliver administrative case management to enable a federal draw down of 75% for those case management services required to be provided by healthcare professionals  Additional compensation is needed because the fee-for-service cost basis used in determining capitation rate does not now include care management except in the rates for outpatient specialty care centers.

With respect to the recommendation for the inclusion of qualifications for care managers in the contract (page 42), we believe the language is overly restrictive and does not provide for the inclusion of non healthcare professionals who may be working under the supervision of a healthcare professional. That flexibility may be a means of including persons with disabilities or other bases for personal experience with disabilities in the delivery of care management. We suggest the definition include the preference for persons with personal experience with disabilities.

We strongly support the inclusion of factors to be considered when determining the need for care management (page 44) but recommend that right after “health status” you add “risk for secondary disabilities or complications.”

We strongly support the recommendations concerning the adoption of best practices (page 47) but believe the encouragement should include incentives.

Quality Improvement, Section 6, pages 48-55, and
Performance Measures, Section 7, pages 56-67

Because the report is now addressing children not just adults, we support the suggested recommendation changes and comments made by Laurie Soman, Lucile Packard Children’s Hospital, Stanford University Medical Center.

We recommend that the comments under 6.B.3. include that for persons with low incidence disabilities, best practices are those followed by specialists, usually University based, with experience and expertise in treating persons with the particular low incidence disability. Further, for low incidence disabilities and children, often there are not enough subjects to support the development of evidenced based guidelines. There are simply a lot more people with diagnoses of diabetes than with, for instance, Prader-Willy Syndrome.

The MCO Contract recommendation [pages 51-52] should include consumers as well. Consumers are included on the QI Committees for local Medi-Cal Mental Health Managed Care Plans.

As discussed above under the category of State Readiness, we particularly appreciate the recommendation for State Agencies to provide information to participating MCOs in year one of the startup enrollment. Page 52.

We support the report recommendations that additional quality measurements that are of particular significance to seniors and people with disabilities be incorporated into quality assessments and reporting requirements.

We recommend that MCOs report on each of the elements of federal Medicaid EPSDT requirements to demonstrate that they are fully compliant with EPSDT screens including lead testing, dental and vision screens as well as the delivery of treatment identified through screens and other contacts.