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January 01, 2013

Dual Eligible Demonstrations: A potential sea change in service delivery for the neediest clients

Fay Gordon

(Note: For a footnoted version of this article, please download the pdf issue of BIFOCAL Vol. 34, Issue 3.)

At the National Aging and Law Institute last fall, I participated in several sessions on Affordable Care Act (ACA) implementation. The sessions explored the changing landscape of care for older adults, from managed long-term services and supports to the dual eligible demonstration. Chatting with my seat neighbors after the sessions, I heard a common frustration: "This is all interesting, but what does it mean for my practice?"

This frustration is particularly palpable when discussing the dual eligible demonstrations. States are in various stages of planning and negotiation. We do know that the demonstrations will represent a sea change in the way services are delivered to dual eligibles (beneficiaries that are eligible for Medicare and Medicaid) and the challenges of getting it right will be considerable.

In a few months, when the early states begin enrollment, we’ll see what this means for clients and elder law practice. Until then, understanding the demonstration’s development, and potential beneficiary issues, will help us prepare to be strong client advocates.

Dual eligible individuals and the demonstration

Six million individuals qualify for full Medicare and Medicaid benefits. These "dual eligible" individuals are a complex, heterogeneous group, whose only unifying characteristic is that they are eligible for two publicly financed health insurance programs. Eighty-six percent of dual eligible individuals have an income level below 150% of the federal poverty line, forty-five percent identify with a racial or ethnic minority, and three out of five dual eligible individuals have multiple chronic conditions.

Care for dual eligible individuals tends to be expensive, and for many, their care is uncoordinated and the system is difficult to navigate.

Recognizing this challenge, Congress gave broad authority to the Centers for Medicare and Medicaid Services (CMS) in the ACA to test new models for financing and delivering care to dual eligible individuals. In 2011, the ACA-created Medicare Medicaid Coordination Office (MMCO) launched the Financial Alignment Demonstration and invited states to design new systems of care delivery based on either of two models. The first model, which most states are proposing, is capitated (managed) care that combines Medicare and Medicaid financing into one funding stream and requires managed care plans to provide and coordinate all Medicare and Medicaid services, including everything from acute care to mental health, home and community based care, and institutional care. The second model, managed-fee-for-service, requires a strong care coordination component, although many services would continue to be provided on a fee-for-service basis. For both models, Medicare and Medicaid would share in anticipated savings.

At the time, MMCO hoped to attract enough state interest that one to two million beneficiaries would participate, allowing MMCO to identify and rapidly replicate successful integration models in other states.

By the spring of 2012, 26 states submitted proposals, with an estimated collective impact on three million dual eligible individuals. As of this writing, MMCO has approved four state proposals: three capitated models (Massachusetts, Illinois, and Ohio), and one managed-fee-for-service model (Washington State). Massachusetts will be the first state to launch a demonstration and plans to begin enrollment on July 1, 2013.

Beneficiary advocates unite to promote consumer protections

Throughout the demonstration, MMCO encouraged meaningful stakeholder engagement in program design. After states submitted their proposals, academics, providers, legislators, and others questioned aspects of the demonstration’s structure, design, and financing. Beneficiary advocates focused on consumer protections in enrollment, integration of long-term services and supports, appeals, and oversight.


All states proposed to use passive ("opt-out") enrollment, a process that automatically enrolls individuals into a new health plan. Advocates pushed MMCO to require voluntary "opt-in" enrollment, guaranteeing dual eligibles retain the right to choose who, where, and from whom they receive their care. Those advocacy efforts met with partial success. In their Memorandums of Understanding (MOUs) with CMS, Massachusetts, Ohio, and Illinois agreed to an initial, voluntary enrollment period before the passive enrollment process. As states enroll individuals, attorneys may need to assist clients when they face confusion with new plans, changes in providers with new networks, and potential disruptions in care.

Integration of LTSS

An ongoing concern with capitation is the integration of long-term services and supports (LTSS) into managed care. Most Medicaid managed care organizations (MCOs), which have typically enrolled children and their parents, have little experience serving individuals requiring LTSS and few connections to existing community-based providers. Similarly, because Medicare does not cover LTSS services, Medicare Advantage plans have no experience in meeting LTSS needs. Plans face a steep learning curve and their ability to build their infrastructure and capacity quickly remains unknown. Careful monitoring for disruptions in care and poorly planned care transitions will be critical in early stages of the demonstration.

Ombuds, appeals, and oversight

Beneficiary advocates agree that an independent, conflict-free advocate’s office that will help individuals navigate the new systems and also represent enrollees on larger systemic issues is critical for the success of the demonstration. The inclusion of an ombuds office appears to be a priority for MMCO. An ombuds office will require adequate funding, and advocates are working with the States to design programs and secure funding. Attorney advocacy is needed to make sure States follow through with supporting ombuds and oversight office, and maintain them through the life of the demonstration. Ensuring that new appeals systems include all hard-won Medicare and Medicaid protections is also a top priority

These are just a few of the issues clients may face in demonstration states. While the demonstrations hold great promise for improved efficiency and coordination, diligent advocacy and monitoring by attorneys who work with dual eligible clients will be critical for ensuring continued access to care and services. The National Senior Citizens Law Center is working with advocates in the demonstration states, and provides resources for those interested in the projects at ■

Fay Gordon

About the Author: Fay Gordon is a Staff Attorney at the National Senior Citizens Law Center in Washington, DC.