NCD Follow Up Letter to CMS about Amendment to Kancare Medicaid Section 1115

January 14, 2014

Marilyn B.  Tavenner
Administrator
U.S.  Department of Health & Human Services
Centers for Medicare & Medicaid Services
Hubert H.  Humphrey Building
200 Independence Avenue, SW, Room 445-G
Washington, DC 20201

RE:     Amendment to KanCare Medicaid Section 1115 Follow-Up

Dear Administrator Tavenner,

The National Council on Disability (NCD) appreciates CMS’ recent decision to delay the approval of Kansas’ proposed amendment to the State’s KanCare Section 1115 demonstration project.  We provide below our recommendations on appropriate safeguards we believe CMS should incorporate into the KanCare demonstration prior to approval of Kansas’ 1115 amendment. 

As you are aware, NCD has a long history of support and engagement on the issue of Medicaid managed care.  NCD has articulated its views on this topic in its 2013 report, “Medicaid Managed Care for People with Disabilities” as well as in its publications “Guiding Principles for Successfully Enrolling People with Disabilities in Managed Care Plans” and “Analysis and Recommendations for the Implementation of Managed Care in Medicaid and Medicare Programs for People with Disabilities.”  As with NCD’s December 13, 2013 letter to CMS, the recommendations and findings proffered below are consistent with NCD’s prior positions and publications.

NCD believes that Medicaid managed care can be a positive force for controlling costs and improving outcomes, if it is implemented with good program design and the necessary safeguards to ensure beneficiary rights.  In light of significant concerns raised regarding KanCare’s program design, we continue to recommend that CMS not approve Kansas’ proposed 1115 waiver amendment at this time.  Below, we have outlined a number of recommended program design changes and benchmarks for Kansas to undertake prior to the approval of their proposed 1115 amendment.  While the proposed 1115 amendment relates specifically to people with intellectual and developmental disabilities (I/DD), many of these recommendations apply across all populations who utilize Managed Long-Term Services and Supports (MLTSS).

  1. Kansas should demonstrate statewide stakeholder engagement and assistance in the construction of its revised waiver application.  The ability for KanCare to successfully serve people with disabilities requires the sufficient inclusion of people with I/DD as well as the broader disability communities’ recommendations and viewpoints.  Kansas should provide CMS with a plan for engaging stakeholders in the revision of the proposed 1115 amendment and subsequent quality improvement activities across KanCare.  Prior to the approval of the proposed 1115 amendment, Kansas should submit to CMS documentation regarding successful implementation of the stakeholder engagement plan.  Implementation should be conducted consistent with existing CMS’ MLTSS technical assistance documents.
  2. Kansas should commit and demonstrate success in bringing itself into compliance with its obligations under its current 1915(c) waiver, including serving the full number of people Kansas committed to serving in its1915(c) waiver application and all people on its “underserved” waiting list.  NCD remains deeply troubled by Kansas’ failure to meet its current obligations under its current 1915c waiver and accordingly recommends that Kansas make a specific commitment to bringing itself into compliance on a set timeline.  NCD believes that early inclusion of this community may reduce the incentive on the State and Managed Care Organizations (MCOs) to reduce and eliminate the waiting list.  Additionally, CMS should work with Kansas to revise the capitation arrangements put place with MCOs to ensure that they reflect an accurate assessment of the costs of serving the I/DD community after full compliance with the 1915(c) waiver has been achieved.  Cost-savings achieved by the managed care demonstration should go towards reducing Kansas’ un-served waiting list for the 1915(c) waiver.
  3. Kansas should operate during the next 12 months a regional, not statewide, I/DD pilot project consistent with the managed care model proposed in its 1115 amendment request for the state I/DD system.  NCD further recommends the creation of a robust Demonstration Implementation Council to monitor, oversee, and amend, as needed the 1115 DD Waiver for statewide application based upon the successes or limitations of the regional pilot.  We note CMS’ May 2013 technical assistance document, “Timeline for Developing a Managed Long Term Services and Supports Program,” which states, “Continuous engagement of stakeholders is critical to success.  This includes stakeholders external to State government, such as beneficiaries who use LTSS, advocates, LTSS providers, and those internal to State government, including aging and disability agencies, the insurance oversight agency, the Governor’s Office and the Legislature.”  Consistent with this, the Demonstration Implementation Council should include stakeholders from each of these categories.
  4. Kansas should amend its proposed 1115 amendment to remove carving out of public Intermediate Care Facilities from the managed care framework.  In NCD’s 2012 Guiding Principle document, we stated, “States planning to enroll recipients of long-term services and supports in managed care plans should be required by CMS to include providers of institutional programs as well as providers of home and community-based supports within the plan's scope of services.  This requirement should be built into the terms and conditions governing waiver approvals.  We believe that Kansas’ proposed “carve-out” for public institutional settings for people with I/DD creates harmful incentives for MCOs and diminishes the ability of the managed care framework to enhance quality and control costs.  There is no programmatic rationale for the exclusion of the lowest quality, highest cost service from the managed care framework.
  5. Kansas should establish a robust and independent Ombudsman’s office.  In accordance with established practice, the KanCare Ombudsman should be located outside of any agency that administers or manages Medicaid services.  The Ombudsman’s office should be specifically charged with consumer advocacy functions and be empowered to initiate actions in administrative, judicial, and legislative forums on behalf of beneficiaries.  Additionally, the minimal resources allocated to the Ombudsman’s office concern NCD.  We recommend that Kansas increase the personnel and funding associated with the Ombudsman at the same time that it revisits its current mission and administrative placement. 
  6. CMS should require Kansas to ensure that MCOs maintain a maximum ratio of care coordinators to beneficiaries of no more than 1:40 for people with I/DD.  More intensive case management may be required for specific populations and Kansas should be required to indicate how the current I/DD network will be supported to assure such targeted case management services would be provided in those instances.  Kansas should also clearly indicate in its revision the protections that are put in place to ensure that people with disabilities will be able to retain access to their existing targeted case managers after the transition to managed care.  Additionally, CMS should carefully evaluate care coordination for other populations and consider appropriate maximum ratios to incorporate for their MLTSS systems.
  7. CMS should require Kansas to submit a plan and documentation showing how implementation of such a plan will ensure that all consumers receiving MLTSS that are subject to changes or reductions in service will receive written notice along with information on their due process rights, with documentation to demonstrate that consumers will not be subjected to a more cumbersome or time-consuming process.  Additionally, consumers should be clearly informed that they will not be liable for the cost of disputed services should they choose to appeal a service reduction.  CMS should require Kansas to clearly indicate a mechanism for monitoring MCO compliance with this requirement and monitor implementation after approval.

NCD recognizes that managed care can create a pathway to higher quality services and more predictable costs, but only if service delivery policies are well-designed and effectively implemented.  When properly implemented, Medicaid managed care can achieve cost savings by improving health outcomes and eliminating inefficiencies, not by reducing the quality or availability of care.  When improperly implemented, the needs of people with disabilities can be adversely impacted in dangerous ways.  We believe that implementation of the recommendations noted above would help ensure the successful implementation of KanCare and protect people with disabilities from adverse unintended consequences.

Again, thank you for your ongoing attention to this issue.  NCD stands ready to provide our support and research to the Kansas and CMS to ensure that the implementation of KanCare, and managed care nationally, is not detrimental to people with disabilities and their families.  Please do not hesitate to contact Robyn Powell, NCD’s Attorney Advisor, at 202-236-9651 or rpowell@ncd.gov if we can be of further assistance.

Respectfully,

Jeff Rosen
Chairperson

CC:

Cindy Mann, JD
Director of the Center for Medicaid and State Operations
Centers for Medicare & Medicaid Services

Susan Mosier, MD
Medicaid Director
Kansas Department of Health and Environment

Robert Moser, MD, Secretary
Kansas Department of Health and Environment

Shawn Sullivan, Secretary
Kansas Department for Aging and Disability Services

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