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Medicaid long-term care plans (MLTCs) play a crucial role in providing necessary medical and personal care services to individuals who are elderly or have disabilities. These plans, funded jointly by state and federal governments, ensure that millions of Americans receive the care they need. However, a pertinent question arises: Can Medicaid long-term care plans be held responsible for patient injuries that occur in the home?
Medicaid is a state and federally funded program that provides health coverage to eligible low-income individuals. Within Medicaid, long-term care (LTC) services are designed to help people with chronic illnesses or disabilities perform everyday activities. These services can be provided in various settings, including nursing homes, assisted living facilities, and at home.
To be eligible for managed long-term care in New York, the individual must be:
- Determined eligible for Medicaid by the Local Departments of Social Services or entity designated by the Department;
- Determined eligible for MLTC by the New York Independent Assessor Program using the Community Health Assessment (CHA) in the Uniform Assessment System (UAS-NY) eligibility assessment tool;
- Capable, at the time of enrollment, of returning to or remaining in their home and community without jeopardy to their health and safety, based upon criteria provided by the Department; and expected to require at least one of the following services covered by the MLTC Plan for more than 120 days from the effective date of enrollment:
- nursing services in the home;
- therapies in the home;
- home health aide services;
- personal care services in the home;
- adult day health care;
- private duty nursing; or
- Consumer Directed Personal Assistance Services.
For purposes of this discussion, we are going to look at member care in the home, or more specifically, whether liability can attach to an MLTC if they are negligent in providing adequate services and the member suffers an injury as a result.
Prior to May 2022, the initial assessment process for those seeking to enroll in an MLTC included a nursing assessment as well as ocher qualifying assessments that were performed by the MLTC to which the member applied. Also required was a physician’s order for services. A new policy released by the Department of Health (DOH) describes in detail the procedures that will be followed, beginning May 16, 2022, for independent assessments of eligibility for Medicaid personal care services (PCS), Consumer Directed Personal Assistance Services (CDPAS), and Managed Long Term Care (MLTC) enrollment. The Independent Assessment (IA) process will replace the Conflict-Free Evaluation and Enrollment Center (CFEEC).
However, the time period where the negligence in the Santoro matter arose was in 2014 and 2015, prior to May of 2022, therefore the nursing assessments for the purpose of determining the number of home health care aide hours was performed by her MLTC, defendant Integra MLTC, Inc. (“Integra”). Plaintiff’s theory of the case was that Integra could be held liable in negligence for failing to properly assess Ms. Rohan and as a result of the assessment providing a 24-hour aide instead of split-shift aides as Ms. Rohan exhibited unpredictable behavior during the overnight hours, and she was diagnosed with dementia and a host of other conditions that affected her ability to transfer, ambulate or toilet herself.
Background
At the time the Rohan action was filed, Integra was a New York-licensed HMO that provides managed long-term care services to medicaid enrollees in New York. Co-defendant Home Health Services of New York, Inc. (HCS) was a home health care agency.
Integra managed Ms. Rohan’s home health care following a stroke. Pursuant to Integra’s and HCS’s contract, HCS provided home health aides to perform personal care services on a 24-hour live-in basis in Ms. Rohan’s apartment, which was contained within her daughter’s house. On December 2, 2014, and June 6, 2015, while those aides were present in Ms. Rohan’s apartment, Ms. Rohan fell and sustained injury.
An action was filed on behalf of Ms. Rohan by the executor of her estate, Noreen Santoro. The action sought recovery for Ms. Rohan’s pain and suffering because of the two falls that occurred in her home. The injuries included a fractured hip with surgery as well as a fractured pelvis. In addition to Integra and the home health agency HCS, Ms. Rohan’s physician Dr. David Schifter, who signed off on her care plans, was sued as a defendant.
After discovery in the action was completed, defendants Integra and Dr. Schifter moved for summary judgment dismissing the complaint. the court denied both motions.
Integra argued in its motion seeking summary judgment as a matter of law that it is not liable under any theory to plaintiffs, as it acted merely as a Medicaid benefits coordinator in which it provided no medical treatment or nursing care to Ms. Rohan and where Integra correctly assessed Ms. Rohan’s personal care needs under the applicable guidelines and case and statutory authority. In addition, Integra argued that Plaintiff’s request for split-shift aides amounted to a request “overnight monitoring” which is not a service permitted under Medicaid guidelines.
Plaintiff argued in opposition that Integra had a duty to manage Ms. Rohan’s member services so that they receive adequate and necessary care. In Ms. Rohans case, Integra, as a private for-profit entity that contracted with the State of New York to administer Medicaid services in the home for its members, made the decision as to how many hours of home health aide services Ms. Rohan would receive. As part of its management, Integra was solely responsible for determining how much care Ms. Rohan would receive at home via the home health aides provided by Home Health Care Services of New York, Inc. Most importantly for our purposes here, Integra decided the number of hours the aides would be at the house to provide care for and supervision for Ms. Rohan.
In Tanzman v. Ghislaine the Second Department held that collectively, a managed long term care plan and home healthcare agency established, prima facie, that there was no duty to monitor the decedent throughout the night and thus neither would be held liable for injuries plaintiff sustained because of a fall in the home. The Court held in Tanzmen that plaintiff did not establish a physician-patient relationship between the defendants and the plaintiff’s decedent.
In Santoro, Plaintiff alleged, inter alia, that Integra was negligent as a result of denying the multiple requests by Ms. Rohan’s family for split-shift aides versus a live-in aide due to the fact that a live in aide is entitled to at least five hours of uninterrupted sleep per night. Plaintiff argued that Tanzman does not bar a negligence claim against Integra because it was negligent in not providing a split-shift aide once it was apparent that Ms. Rohan required services on a 24-hour basis, including toileting and transferring that a live-in aide could not provide due to the fact the live-in aide was entitled to sleep. Plaintiff argued that it is a jury question as to whether Integra was negligent and, if so, make a determination as to proximate cause even though Plaintiff alleged that during both falls, the aides were negligent as well. In addition, Plaintiff alleged that the care plans put into place by Integra and signed off by Ms. Rohan’s physician were inadequate for the same reasons and therefore a jury should determine fault among all three defendants.
Interestingly, Integra’s moving papers seeking summary judgment contained an “expert” affidavit from an attorney who was the vice president and general counsel to Integra between 2019 and 2022. The attorney averred that he was familiar with Integra’s business operations as well as the “Medicaid Guidelines” that governed Integra’s responsibilities and limitations as a Medicaid Managed Long Term Care plan during the relevant time period. In addition, the expert averred that he was familiar with the statutes and regulations governing the levels of personal care services provided by managed long-term care organizations, and the criteria needed to support requests for services including live-in 24-hour care and 12-hour split-shift care. The expert, however, was not a medical doctor, nurse, or health care provider and could not opine as to whether the assessments performed by Integra were non-negligent.
In Strouchler v. Shah, a class action was filed in the Southern District against the New York State Department of Health and the New York City Human Resources Administration by plaintiffs and a putative class seeking an injunction preventing defendants from reducing or terminating 24-hour home care services administered by New York State using Medicaid dollars. Since the New York State Department of Health is the state agency responsible for implementation of the state’s Medicaid plan, it has the ability to determine the rules concerning the state program that the plaintiffs and others receive concerning help with personal hygiene, dressing, feeding, walking, and other activities of daily life such that they can continue living in their homes rather than in hospitals or other institutions.
An important directive that came out of the Strouchler case was the New York State Department of Health having to clarify the proper interpretation and application of 18 N.Y.C.R.R. 505; with respect to the availability of 24-hour, split-shift personal care services for needs that are predicted and for Medicaid recipients whose only nighttime need is turning and positioning.
This clarification, which was issued by the New York State Department of Health in 2013, included the fact that a person’s needs are predictable does not preclude the receipt of 24-hour split-shift care, if the person has a documented medical need for the tasks to be performed with a frequency that would not allow a live-in aide to perform them and still obtain an uninterrupted five hours of sleep.
At issue in Santoro, was the continued denial of 24-hour split-shift care even though Ms. Rohan required more than just turning and positioning during the overnight hours. During both falls, there is video surveillance evidence that the aides were either sleeping or were otherwise inattentive to Ms. Rohan causing her to tall and sustain serious injuries.
The Court’s Decision
The Court denied both Integras and Dr. Schifter’s motions for summary judgment. The Court, in its decision, cited to the deposition testimony of both Plaintiff’s daughters, as well as the nurse assessors and care managers produced by Integra. There was evidence that there were multiple requests for 24-hour split-shift aides both prior to and after Ms. Rohan’s fall during the overnight hours on December 2, 2014, which caused a hip fracture by Ms. Rohan’s daughter. All requests were denied.
In addition, the court discussed the fact that Integra’s repeated determinations that Ms. Rohan did not quality for 24-hour split-shift services were repeatedly endorsed by Dr. Schifter, and this meant that Ms. Rohan would only be receiving 13 hours of personal care services per day, despite the fact the aide stayed in the home for 24 hours due to sleep requirements and break periods.
The court also held that Integra did nor meet its prima facie burden that its assessments were fair and reasonable under the circumstances given that there was no qualified expert opinion provided on this issue, and that jury could find that Integra’s underlying nursing assessments of the personal care needs of Ms. Rohan were understated or driven by the economics of spending less for her care.
The Santoro decision is important for the proposition that an MLTC is effectively making health care decisions for its members and that they have a duty to provide reasonable assessments and provide home health care aide hours that address the need of the individual. In this author’s opinion, it was crucial in this case that the Plaintiff’s medical records as well as the opinion of Plaintiff’s expert supported her claim that Integra was negligent under common law standards and that its negligence was a proximate cause of the injuries.
Contrasting this evidence with that put forth by Integra, the Court found that Integra tailed to meet its burden to establish its fundamental proposition that its assessments and thus the refusal to provide 24-hour split-shift care was based on a fair and reasonable examination of Plaintiff’s individual needs.
Of course, the decision in the Santoro case is at the trial court level and it certainly could be reviewed by the Appellate Court. More likely, of course, is that the case will be resolved before it reaches the higher Court. Moreover, the new assessment rules under the New York Independent Assessor Program could have an effect on MLTC liability in the future. This area of the law is certainly dynamic and ever changing and will require a close watch for those practitioners with clients on community Medicaid administered through a managed long-term care provider.
Published in the NYSBA Elder and Special Needs Law Journal 2024 | VOL. 34 | NO.2
