Medicaid Recipient’s Right to Choose Medicaid Provider Without State Interference

A recent Florida case concerned competing Medicaid rights—a Medicaid recipient’s right to choose a Medicaid provider without state interference, and a state’s right to maintain quality medical treatment for some of its most vulnerable citizens. Miracles House operates two group homes that offer healthcare services to the permanently disabled.

In Florida, the Agency for Health Care Administration regulates assisted living facility licenses and oversees the quality of care at those facilities. Florida’s Agency for Persons with Disabilities is responsible for monitoring group homes and issuing licenses to group-home operators. Miracles had licenses to operate its facilities.

 

Medicaid Providers Requirements

Miracles was a Medicaid provider. Qualified Medicaid providers must maintain a facility license and enter into a Medicaid Provider Agreement with Florida’s Agency for Persons with Disabilities. These qualified providers have “Medicaid Provider Authorization,” which allows them to obtain a Medicaid provider number and receive Medicaid reimbursement for certain healthcare services. If a Medicaid provider loses its Medicaid Provider Authorization—such as by the suspension of its license or termination of its Medicaid Provider Agreement—the provider loses the right to furnish Medicaid services and receive payment from Medicaid.

In July 2017, Florida’s Agency for Health Care Administration suspended Miracles’ Assisted Living License because of deficient patient care. Because of this, the Agency for Healthcare Administration suspended Miracles’ Assisted Living License and closed another of its facilities.

But Miracles held two licenses—the suspended Assisted Living License and the Group Home License. So, even though it lost its Assisted Living License, it retained its Group Home License—allowing it to continue operating both of its group homes.

Plaintiffs emphasized the separateness of the group homes and Amazing Wonders, arguing that the problems at Amazing Wonders didn’t impact the quality of care administered at Miracles’ group homes. Plaintiffs argued that the events at Amazing Wonders shouldn’t affect Miracles’ status as a qualified Medicaid provider in its group homes.

Defendants said that they effectively treated the facilities as one in the same, arguing that Amazing Wonders’ deficiencies reflect Miracles’ medical competence and qualifications—or lack thereof. According to the Defendant, the problems at Amazing Wonders, and subsequent suspension of Miracles’ Assisted Living License “led [the Agency for Health Care Administration] to conclude that Miracles was no longer fit to perform Medicaid services in a professionally competent, safe, legal and ethical manner under 42 C.F.R. § 431.51(b)(1).” In other words, the state determined that Miracles’ ownership of an assisted living facility with such extensive deficiencies undermined Miracles’ fitness to provide Medicaid services even at entirely separate entities.

The Agency for Health Care Administration terminated Miracles’ Medicaid Provider Authorization, and it no longer qualified as a Medicaid Services Provider, prompting the Agency for Persons with Disabilities to terminate its Medicaid Provider Agreement with Miracles.

In short, Plaintiffs alleged that Defendants “imposed a sanction of exclusion from Medicaid on Miracles House without a finding of a ‘violation’ by Miracles House and without providing Miracles House the opportunity for a pre-deprivation hearing as state law requires.” It asked the Court for a temporary restraining order and a preliminary injunction restraining Defendants, his employees, agents, and successors in office from terminating the Medicaid provider agreements of Plaintiff Miracles House.

Plaintiffs claimed that the state terminated Miracles’ Medicaid Provider Authorization and Provider Agreements for reasons unrelated to its fitness to perform safe, effective medical services—a violation of the free-choice-of-provider provision.

United States District Judge Federico A. Moreno wrote in his opinion that the federal Medicaid statute includes a free-choice-of-provider provision. Courts agree that the free-choice-of-provider provision creates a private right, but only Medicaid recipients—not Medicaid providers—can enforce that right.

Defendants argued that because Miracles House, Inc. is a (former) Medicaid provider, it lacked standing to assert a claim. The Court agreed. However, the individual Miracles Plaintiffs in this action—as Medicaid recipients—did have standing to pursue the requested relief under the free-choice-of-provider provision.

Medicaid’s free-choice-of-provider provision guarantees Medicaid recipients “the right to choose among a range of qualified providers without government interference.” However, this right to choose is limited to qualified providers. And states have the right enforce minimum standards of care for Medicaid providers.

Here, the Plaintiffs’ motion for emergency temporary restraining order and preliminary injunction was denied, and the Defendants’ partial motion to dismiss Miracles House for lack of standing was granted. Miracles House, Inc. v. Senior, 2017 U.S. Dist. LEXIS 186336 (S.D. Fla. November 9, 2017).

 

Contact Us

If you have questions about Florida Medicaid, Attorney John Frazier is a skilled Medicaid planning (with over 2,000 cases completed that helped preserve their family’s savings), estate planning and elder law practitioner. Please contact John for a free telephone consultation at 727-586-3306 extension 104. If you prefer click here now to send in a contact form, and we will get in touch with you.

 

Bill of Rights for Florida Nursing Home Residents Bill Considered

A new version of a constitutional Bill of Rights for Florida nursing home residents and assisted living facilities was recently approved by a review committee.

The Declaration of Rights Committee approved the proposal (P88) by a vote of 5-2, sending it to the full Constitution Revision Commission for consideration.

However, the Bill of Rights for Florida Nursing Home Residents was criticized by the Florida Health Care Association, which represents nursing homes, assisted living facilities, and others who care for the elderly and people with disabilities. The association took issue with payments by Medicaid.

“In reality, it is nothing more than an avaricious ploy by trial lawyers to profit from increased lawsuits against nursing centers,” said Emmett Reed, the association’s executive director, in a statement.

The proposal was proposed by Commissioner Brecht Heuchan after a South Florida nursing home lost air conditioning during Hurricane Irma in September 2017. That resulted in 14 residents’ deaths (although not all the deaths at the Rehabilitation Center at Hollywood Hills were connected to the lack of AC at the building). Nonetheless, Broward County authorities deemed 12 of the deaths to be homicides.

This prompted Florida Governor Rick Scott to demand that all nursing homes and assisted-living facilities in the state install sufficient backup generators and have 96 hours of fuel on site to keep temperatures safe in case of power failure. That proposal resulted in months of lawsuits and negotiations by the industry before reaching an agreement in February 2018.

 

Details of the Bill of Rights for Florida Nursing Home Residents

The Bill of Rights includes a provision for a “right to a safe, clean, comfortable, and homelike environment.” This would protect residents from “extreme climatic conditions and natural disasters,” a nod toward the deaths that occurred during Hurricane Irma. The bill also contains a “right to know and hold accountable all persons or entities who either directly or indirectly own or operate the facilities.”

But the Florida Health Care Association believes that the Bill of Rights for Florida Nursing Home Resident’s “undermine(s) the hard work of thousands of health care professionals who provide outstanding care for some of Florida’s most vulnerable citizens. Existing state and federal laws guarantee the rights of nursing center residents, and these laws have been working well to support the advances in quality that are being made in Florida nursing centers today.”

Reed also remarked that Florida “is among the best in the nation in nursing and Certified Nursing Assistants staffing ratios; that reforms in 2001 led to more systemic approaches to delivering care … and that new federal rules announced in November make major updates in residents’ rights, care planning, quality assurance, and assessments.”

After the review meeting, Commissioner Heuchan said he would still consider changes to the language but believes that the current version is “a step in the right direction.”

“People that live in nursing homes have (fewer) rights than people who don’t,” he told panel members. “It’s unconscionable.”

In the end, the effort to put the Bill of Rights for Florida Nursing Home Residents on the ballot was withdrawn by the sponsor as in their view the compromises needed to get the proposal passed were too much.  To learn more you can read this Miami Herald article now.

 

Contact Us About the Florida Nursing Homes Resident’s Bill of Rights

If you have questions about Florida Medicaid, Attorney John Frazier is a skilled Medicaid planning (with over 2,000 cases completed that helped preserve their family’s savings), estate planning and elder law practitioner.

Please contact John for a free telephone consultation at 727-586-3306 extension 104. If you prefer click here now to send in a contact form, and we will get in touch with you.

Work Requirements for Medicaid Beneficiaries in FL Unlikely

Work requirements for Medicaid beneficiaries did make it through a Florida House committee on a 14 to 4 vote in the just-ended legislative session. The Trump administration recently showed a positive reaction to work requirements for Medicaid beneficiaries. However, the Florida Legislature did not enact this type of requirement in the current legislative session.

 

Work Requirements for Medicaid Beneficiaries: Florida’s House Speaker Says No

Florida House Speaker Richard Corcoran, R-Land O’ Lakes, told The News Service of Florida that the state’s $26 billion Medicaid program is comprised mostly of children and seniors. The work requirements proposed in other states are designed to address able-bodied adults who qualify for Medicaid under the Affordable Care Act (known as “Obamacare”).

“I think that’s geared toward Obamacare expansion, not to our plan since we didn’t expand,” Corcoran said of imposing work requirements. “We don’t have childless able-bodied working age adults in our system, so I don’t know how that would transpose to us. If you look at our Medicaid population, mostly children, mostly seniors, and single pregnant moms, I don’t think that is necessarily something that we would do.”

 

Florida’s Medicaid Program Nation’s Fourth Largest

Florida currently has roughly 4 million people enrolled in its Medicaid program. That makes it the fourth largest in the nation in terms of population, according to Medicaid Director Beth Kidder. Estimated spending on the Medicaid program will be just under $27 billion in 2018—that would be the fifth-largest program in the nation in terms of spending.

Kerri Wyland, a spokeswoman for Governor Rick Scott, sidestepped an answer as to whether the governor would support work requirements for Medicaid beneficiaries or co-payments for the Medicaid program. “This would require legislative action. Governor Scott will review any bill that reaches his desk,” she remarked.

Last month, the Trump administration sent a letter to state Medicaid directors announcing a policy to authorize work requirements for Medicaid beneficiaries for states with what are known as “Medicaid 1115 waivers.” Florida has such a waiver.

“Subject to the full federal review process, CMS (the federal Centers for Medicare & Medicaid Services) will support state efforts to test incentives that make participation in work or other community engagement a requirement for continued Medicaid eligibility or coverage for certain adult Medicaid beneficiaries in demonstration projects authorized under section 1115 of the Social Security Act,” the letter said.

“Such programs should be designed to promote better mental, physical, and emotional health in furtherance of Medicaid program objectives. Such programs may also, separately, be designed to help individuals and families rise out of poverty and attain independence, also in furtherance of Medicaid program objectives.”

States would have the ability to identify activities other than employment that promote health and wellness. These activities might include community service, caregiving, or job training.

 

Work Requirements for Medicaid Beneficiaries is a Priority for Republicans

Requiring work thresholds for Medicaid eligibility has been a long-standing priority for conservatives. The Trump administration announcement reverses previous policies that prevented states from requiring Medicaid beneficiaries to work to qualify for program benefits.

Although House Speaker Corcoran announced that his chamber won’t move forward with the work requirement in 2018, the Republican-led chamber did look at the idea last year. Representative Travis Cummings, R-Orange Park, introduced a bill in 2017 that would have required all Medicaid beneficiaries who are part of the state’s “managed medical assistance” program to satisfy to the same work requirements that apply to families who receive temporary cash assistance.

Cummings’ bill also would have required Medicaid enrollees to pay monthly premiums to stay enrolled in the managed medical assistance program, which involves enrolling in managed-care plans.

 

Contact Us About Medicaid Eligibility

If you have questions about Florida Medicaid Attorney, John Frazier is a skilled Medicaid planning (with over 2,000 cases completed that helped preserve their family’s savings), estate planning, and elder law practitioner.

Please contact John for a free telephone consultation at 727-586-3306 extension 104. If you prefer click here now to send in a contact form, and we will get in touch with you.

 

Nursing-Home Group Priorities

Nursing Home Group priorities of the Florida Health Care Association discussed the group’s priorities for the 2018 legislative session before it began. Their list included topics like generator requirements and increased Medicaid funding.

For the 2018 legislative session, the Florida Health Care Association planned to request that lawmakers earmark more money to care for Medicaid-funded residents and protection of the Certificate of Need process which restricts the overall number of nursing homes in Florida.

 

Nursing Home Group Priorities Targets Generators Needed to Handle Emergencies

After last September’s Hurricane Irma resulted in several deaths at a Broward County nursing home, long-term care facilities have gained attention for their emergency procedures.

The state and industry groups have been fighting in court over proposed state rules that would require nursing homes and assisted-living facilities to have generators and fuel supplies so that their buildings will stay cool during power outages.

Florida Health Care Association chief lobbyist Bob Asztalos commented that the cost to retrofit all nursing homes will vary drastically at each location based on the size and age of a building. Asztalos would like to see additional state funding to help satisfy the generator requirement.

“Our hope is that we can work, the governor and us together, and get to a place on the rule and resolve this through the rulemaking process,” said Asztalos. “If not, we will work with Democrats, Republicans, the House and Senate to try to get legislation.”

FHCA wants the state legislature to approve generator rules recently promulgated by the Agency for Health Care Administration and Department of Elder Affairs. These rules also ensure vulnerable seniors are kept safe during emergencies by bolstering resident-focused procedures to make certain that their health and well-being is watched during disasters.

The result from the just closed session and signed by the Governor was a new requirement in law for all nursing homes to have generators for air conditioners in place with fuel by July 1, 2018.  The fuel requirement was for at least 72 hours.  For assisted living facilities with 17 or more beds the requirement is for 48 hours of fuel.

 

Quality Long Term Care for Frail Elders and Those with Disabilities

Another nursing home group priority of FHCA is also asking state lawmakers to support a Senate’s budget increase of $130.4 million in Medicaid funding for skilled nursing centers to improve the quality of long-term care for infirm seniors and individuals with disabilities.

That request includes $8.4 million in General Revenue to offset Medicaid costs of equipping centers with generators over a three-year payback period, as well as $22.7 million General Revenue for increased direct care spending for recruiting and retaining qualified caregivers under the Prospective Payment System (PPS), and $17.7 million General Revenue for increased quality incentives under the PPS.

The result from the just-finished legislative session and signed by the Governor was indeed a $130 million increase in Medicaid funding for nursing homes. Seems like a victory for their efforts to enact their nursing home group priorities this year.

Contact Us

If you have questions about Florida Medicaid, Attorney John Frazier is a skilled Medicaid planning (with over 2,000 cases completed that helped preserve their family’s savings), estate planning and elder law practitioner. Please contact John for a free telephone consultation at 727-586-3306 extension 104. If you prefer click here now to send in a contact form, and we will get in touch with you.