Most of the media coverage of the Affordable Care Act, aka Obamacare, has focused on “the Exchange,” whereby uninsured individuals can purchase affordable private health insurance coverage. Less well-known, but of potentially huge import to the most vulnerable healthcare consumers, is the ACA’s Duals Demonstration initiative, which aims to reduce costs and improve the quality of care delivered to “dual eligible” people who have both Medicare and Medicaid health insurance.

Medicare is the national public health insurance program for people over 65 or who are receiving Social Security Disability Insurance. Medicaid is the state-administered public health insurance program for the very poor, as well as the primary source of coverage of long-term care services for people with disabilities, particularly those of advanced age. Dual eligibles tend to be very costly to care for and have almost no financial resources to pay for care. And, although dual eligibles have two sources of public health insurance coverage, they are often plagued by poor quality care, and poor health outcomes. The Duals Demonstration project holds promise, if designed and implemented correctly, for solving these problems – and in the process offer states increased flexibility and reimbursement.

New York is one of 15 states to obtain approval from the federal government to operate a “duals demonstration” that integrates the Medicare and Medicaid programs. New York’s proposal is to require a certain subset of dual eligibles to enroll in a new type of private health insurance product called a Fully-Integrated Duals Advantage (FIDA) plan, and to receive all of their Medicare- and Medicaid-covered services and healthcare through that plan. The population targeted for enrollment in FIDA consists of those duals in need of long-term care services, such as home care or skilled nursing facility placement. The duals demo has great potential to align the currently skewed financial incentives of the two programs, and to create incentives for better care coordination of this population. However, advocates for consumers have been wary of what appears to be a continuation of New York’s trend of privatizing the Medicaid program in the belief that the invisible hand of the marketplace will balance the State’s budget without provoking the usual political backlash accompanying any changes to this $16 billion industry.

NYLAG has long represented the interests of dual eligibles through the work of its General Legal Services, Legal Health, and Special Litigation Units. Since 2005, NYLAG attorneys such as Ben Taylor have represented hundreds of dual eligibles in disputes regarding the care they receive (or do not receive) including those who receive their care through Managed Long-Term Care (MLTC) plans, a precursor to the FIDA plans proposed under the duals demo.

NYLAG’s newest division, the Evelyn Frank Legal Resources Program, is a founding member of the Coalition to Protect the Rights of New York’s Dually Eligible, which for over a year has been engaging State policymakers on the development of the duals demo. Through the Coalition, NYLAG attorneys have raised the following concerns with New York’s proposed demonstration:

  • Because of the capitated payment model, access and quality of care may be compromised in the name of saving money (the State had initially proposed a second, non-capitated demonstration using Health Homes, but disappointingly withdrew this proposal earlier this year);
  • There may be inadequate provider buy‐in resulting in poor quality of care and limited access;
  • The move from fee‐for‐service to insurance based managed care may compromise care by disrupting provider relationships, destabilizing the current safety net and creating a care system based on networks rather than need;
  • New regulations governing FIDA plans may undermine, ignore, or circumvent important beneficiary rights and protections grounded in the Medicare and Medicaid laws and in the State and Federal Constitutions;
  • FIDA plans may not be tailored to meet the unique needs of subpopulations being served by subprograms that currently exist in the Medicaid program;
  • FIDA programs may have the unintended consequence of incentivizing institutionalization, in contradiction to the State’s commitment to the implementation of the Supreme Court’s decision in Olmstead v L.C., 527 U.S. 581 (1999)

Through participation in workgroups and public pressure via the media, NYLAG has helped to ensure that the voice of the consumer is loud in the ears of State policymakers during this process. Many elements of the proposal were changed in response to the Coalition’s feedback, including for example the integrated appeals process. The State is soon expected to release its Memorandum Of Understanding with the Federal government, laying out in more detail the terms of the demonstration.  NYLAG looks forward to the opportunity to continue working collaboratively with the State, health insurance plans, providers, and, most importantly, the consumers themselves, to ensure that this project lives up to its worthy goals.