2016 Impact of Consolidation on Long-Term Services & Supports 27
Under traditional fee-for-service Medicaid, the state must permit consumers to obtain services from any provider who is willing to accept the state’s unilaterally dictated Medicaid reimbursement as payment in full for the particular service(s) rendered. However, when a state enters into a contract with one or more private MCOs to serve the State’s Medicaid population, the state may obtain a federal waiver157 or may amend its State Medicaid Plan158 to mandate that individual consumers make the shift from fee-for-service to managed care. Importantly, though, states ordinarily may not require consumers who are dually eligible for both Medicare and Medicaid to enroll in managed care159 unless a waiver has been obtained by the state from the Federal Department of Health and Human Services.160 There is continuing litigation in Florida challenging part of the State’s Medicaid managed care LTSS waiver that mandates consumer participation, on the grounds that forcing Medicaid LTSS consumers, who are virtually by definition disabled, into this arrangement violates their rights against discrimination under the Americans with Disabilities Act.161 The contracts that individual states are in the process of negotiating with MCOs typically include LTSS as part of the comprehensive package of benefits the MCO agrees to provide to Medicaid-eligible consumers.162 Most of these contracts also include provisions for some form of mandatory care coordination in order to promote the policy objectives of improved continuity and coherence of services, and hence, enhanced quality, expanded access to
157. See 42 U.S.C. § 1396n (b)( 2) (2010); see 42 U.S.C. §1315(a) (2014). 158. See 42 U.S.C. § 1396u- 2(a)( 1) (2014). 159. See 42 U.S.C. § 1396u- 2(a)( 2) (2014). 160. See 42 U.S.C. § 1396u- 2(a)( 1)( A) (2014). 161. Complaint, Parrales v. Dudek, No. 4:15-cv-00424 (N.D. Fla. Aug. 27, 2015); see also FLA. STAT. ANN. § 409.972 (West 2014) (listing various groups of people for whom enrollment in the Medicaid managed care program is voluntary). 162. See, e.g., FLA. STAT. ANN. §§ 409.978–409.985 (West 2011 – 2015); A Snapshot of the Florida Medicaid Long-Term Care Program, FL. AGENCY FOR HEALTH CARE ADMIN. (July 24, 2014), http://ahca.myflorida.com/Medicaid/statewide_mc/pdf/LTC/SMMC_LTC_ Snapshot.pdf; see Rebecca C. Bell, Medicaid Managed Long-Term Care: Is Florida Ready?, 26 ST. THOMAS L. REV. 103, 103–04 (2013); see also Jean P. Hall et al., Medicaid Managed Care: Issues for Beneficiaries with Disabilities, 8 DISABILITY & HEALTH J. 130, 130 (2015) (“In 2012, 16 states placed at least some beneficiaries using LTSS into Medicaid managed care, with only seven doing so statewide for all LTSS, for a total of about 390,000 beneficiaries nationally. In 2014, 26 states are projected to have managed care programs in place for Medicaid LTSS . . . for a total of more than 1. 8 million people.”).