(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 1.)
As we gear up for the second year of Affordable Care Act (ACA) enrollment, it is easy to overlook the law’s quiet transformation of the long-term services and supports (LTSS) delivery system. LTSS are services and supports that help older adults and individuals with disabilities with activities of daily living. In 2015, several states will finalize significant structural changes to their Medicaid long-term care programs.1 Part of the structural change is an enhanced focus in all states on eliminating conflict of interest from case management services.
The push toward conflict-free case management poses interesting questions for elder lawyers. First, how does any system regulate and monitor conflict of interest? And second, for clients, what does this mean for LTSS service delivery?
Model Rules for Professional Responsibility, the ethics guidance for lawyers, focus on protecting clients by eliminating conflict of interest in representation. The rules are pretty straightforward--don’t represent a client if representation will directly harm another client--with specific details for different situations. In a legal system rooted in the belief that the lawyer’s primary role is to provide a client with competent,2 diligent and prompt3 representation, it’s generally clear when a situation presents a conflict.
In LTSS delivery, roles are not as direct as client and counselor. Often, the assessor, the coordinator, and the provider of services roles overlap. In these situations, when one agent serves as both the gatekeeper and provider of services, there is a clear potential for conflict. This conflict of interest may not be a conscious decision on the part of the agent, but may be the result of incentives and disincentives built in the system.4 In guidance, the federal Centers for Medicare and Medicaid Services (CMS) offer an example of conflict in the assessment process: if the agent is both the assessor of need and the provider of services, the assessor may have an incentive to assess for more or less services than the consumer needs.
In an effort to eliminate the potential for conflict, the ACA includes a requirement that certain states develop conflict-free case management systems. The requirement pertains to states that receive enhanced funding to provide home and community based services under the Balancing Incentive Payment program. Participating states5 must make significant LTSS structural changes, including implementing a conflict-free case management system, by September 30, 2015.
The focus on conflict-free case management complements the goal of improving person-centered care planning: if the case manager is free from conflict, the case manager can appropriately enable and assist the consumer in identifying and developing a plan to access services. Eliminating conflict of interest in the assessment, case management, and care delivery process is an important component of that goal.
States are working toward this goal in earnest through state workgroups6 that are assessing the LTSS delivery system and working to design a structure that eliminates conflict of interest. As states work toward this goal, they are forced to grapple with a core LTSS delivery tension: how does a state deliver services to an individual in a manner that facilitates ultimate choice and consumer direction, while ensuring the overall care system is coordinated and free from conflict? Further, how does a state develop this system to work both with the existing aging and disability services infrastructure and in the rapidly changing health care delivery landscape?
Over the next year, it will be interesting to observe structural changes to better understand how states monitor and regulate conflict of interest. To help the aging and disability network understand different state approaches, NSCLC developed an issue brief, Conflict-Free Case Management: Themes in States Working to Implement New Systems, available at www.nsclc.org.
1 States participating in the Balancing Incentive Payment program are required to make LTSS structural changes by September 30, 2015. More information: Section 10202 of the Patient Protection and Affordable Care Act; 42 U.S.C. 1396n(i)(1)(H)(2).
2 Model Rules of Professional Conduct 1.1: Competence.
3 Model Rules of Professional Conduct 1.3: Diligence.
4 For more CMS guidance on the Balancing Incentive Program, see: http://www.balancingincentiveprogram.org/sites/default/files/Balancing_Incentive_Program_Manual_2.0.pdf.
5 For a list of states participating in the Balancing Incentive Program, see: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Balancing/Balancing-Incentive-Program.html.
6 For a list of state structural change workplans, see: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Balancing/Balancing-Incentive-Program.html. ■