The “Dual Eligibles” Demonstration: Massachusetts Becomes First in the Nation to Implement a New Health Care Model for Medicare-Medicaid Beneficiaries

By: Margaretta Homsey Kroeger, Esq.

Introduction 

In August 2012, Massachusetts became the first state to gain federal approval to test a new model for providing integrated health care to individuals who are eligible for both Medicare and Medicaid, known as “dual eligibles.”[i]  The dual eligibles demonstration, detailed in a Memorandum of Understanding reached with the federal Centers for Medicare and Medicaid Services (“CMS”), will significantly alter the way health care is coordinated and funded for up to 115,000 individuals statewide and, if successful, could be replicated nationally.[ii]

Prompted by the passage of the Affordable Care Act, CMS has invited states to develop new service delivery and payment models in order to improve the quality of care for dual eligibles, while also reducing the high cost of care for this population.[iii]  Dual eligibles account for a disproportionately large share of both Medicare and Medicaid spending because of their complex health needs and low incomes, a situation that has been exacerbated by cost-shifting and a lack of coordination between the two programs.[iv]  As a result, CMS has made it a priority to “significantly increase” the number of dual eligibles enrolled in systems that can integrate their care and align the financial incentives of the Medicare and Medicaid programs.[v]

Massachusetts’ new demonstration applies to dual eligibles ages 21 to 64, who receive Medicare because they have a chronic illness or disability and who are also financially eligible for Medicaid assistance.[vi]  The demonstration is intended to reduce the cost of care for these individuals over time by enrolling them in new managed care organizations that will receive prospective blended capitated payments to provide coordinated care.  These organizations will integrate the provision of Medicare and Medicaid services for dual eligibles, including primary, acute, and behavioral health care, along with long-term services and supports.[vii]

Many details still need to be finalized before enrollment begins in July 2013, and questions remain about whether the demonstration will in fact be able to reduce costs without sacrificing the quality of care for this particularly vulnerable population.  In the coming months, policymakers, providers, health plans, and advocates on the state and national level will be monitoring the implementation of the Massachusetts plan closely and evaluating whether it could become a national model.

This article provides a broad overview of the development of the state’s new dual eligibles demonstration.  First, it discusses the national profile of the dual eligible population and the current model for providing health care to dual eligibles.  It then details the provisions of the Affordable Care Act targeted at improving care for dual eligibles and efforts by CMS to promote integrated care demonstration projects.  Third, it describes the dual eligible population in Massachusetts and summarizes the contents of the state’s demonstration plan.  Finally, it discusses various stakeholders’ concerns about the plan and the potential challenges and possible impact that the plan may have.

Background

The Dual Eligible Population: A National Profile

Nationwide, there are approximately nine million people who are dually eligible for both the Medicare and Medicaid programs.[viii]  These individuals are eligible for Medicare either because they are age 65 or older, or, if they are under 65, because they have a permanent disability that qualifies them to receive federal Social Security Disability Insurance benefits or because they have end-stage renal disease.[ix]  Medicare beneficiaries may also qualify for Medicaid assistance if they are low-income or meet certain other requirements.  On average, dual eligibles are much poorer than other Medicare beneficiaries—86 percent of dual eligibles had incomes below 150 percent of the federal poverty level in 2008, compared to 22 percent of other beneficiaries.[x]

Dual eligibles receive primary health insurance coverage through Medicare, which covers inpatient and outpatient care, diagnostic and preventive services, prescription drugs, short-term rehabilitative and skilled nursing care, and some home health services.[xi]  Medicaid supplements this coverage by helping to pay for Medicare premiums and copayments, and may also provide other benefits that are not covered by Medicare, including long-term services such as nursing and home health care and personal care attendant services.[xii]  About 77 percent of beneficiaries, known as “full” dual eligibles, receive complete Medicaid benefits in addition to their Medicare coverage.[xiii]  The remainder receives limited Medicaid assistance that helps to cover Medicare premiums and cost-sharing expenses.[xiv]

The cost of care for dual eligibles is disproportionately expensive because they have more complex medical needs than the general Medicaid and Medicare populations.  Dual eligibles are much more likely to suffer from multiple chronic health conditions, to have cognitive and mental impairments, and to require home and personal care services or nursing home care.[xv]  Additionally, dual eligibles are more likely to utilize expensive services, such as emergency room visits, hospitalizations, post-acute care, and long-term care, than other beneficiaries.[xvi]  As a result, while dual eligibles made up 15 percent of Medicaid and 20 percent of Medicare enrollees, they accounted for 39 percent of Medicaid and 31 percent of Medicare expenditures in 2008.[xvii]

Room for Reform: The Affordable Care Act and Dual Eligibles

As national health care reform gained momentum, policymakers recognized opportunities to control costs and improve the delivery of care for the dual eligible population.  It was clear that the current structure can be inefficient and unnecessarily expensive.  The provision of services to dual eligibles is often not coordinated between the Medicare and Medicaid programs.  Differences in coverage rules, provider networks and plans, and other program regulations have led to problems in navigating the bifurcated system and to inadequate or duplicative care.[xviii]

Further, the financial incentives of the Medicare and Medicaid programs are not aligned, which encourages cost-shifting between the programs.[xix]  In a 2010 report to Congress, the independent Medicare Payment Advisory Commission (“MedPAC”) found that the programs “often work at cross-purposes,” noting that conflicting incentives “encourage providers to avoid costs rather than coordinate care, and poor coordination can raise spending and lower quality.”[xx]  For example, a nursing home receiving Medicaid payments might be incentivized to transfer a dual eligible resident to a hospital, where Medicare would cover costly services, rather than provide the services itself.[xxi]  Similarly, a hospital might be financially incentivized to transfer a patient to a nursing home, without considering the long-term implications for cost containment and quality of care.[xxii]  The Commission also pointed out that under the current system states are “more inclined to invest in programs to lower their long-term care spending,” which comes out of state Medicaid funds, than to create programs that would avoid unnecessary hospitalizations for dual eligibles, because doing so would benefit the Medicare program rather than the state.[xxiii]

In order to address these issues, the 2010 federal Affordable Care Act health reform legislation[xxiv] contains provisions intended to increase coordination and remove the programs’ conflicting financial incentives.  First, § 2602 of the Act created a new Federal Coordinated Health Care Office within CMS, also known as the Medicare-Medicaid Coordination Office.[xxv]  The stated purpose of the office is to “bring together” the officers and employees of both programs to: (1) “more effectively integrate benefits” under the Medicare and Medicaid programs, and (2) “improve coordination” between the federal government and the states concerning dual eligibles.[xxvi]  Specifically, the goals of the office are set out as follows:

“(1) Providing dual eligible individuals full access to the benefits to which such     individuals are entitled under the Medicare and Medicaid programs.

“(2) Simplifying the processes for dual eligible individuals to access the items and             services they are entitled to under the Medicare and Medicaid programs.

“(3) Improving the quality of health care and long-term services for dual eligible    individuals.

“(4) Increasing dual eligible individuals’ understanding of and satisfaction with     coverage under the Medicare and Medicaid programs.

“(5) Eliminating regulatory conflicts between rules under the Medicare and            Medicaid programs.

“(6) Improving care continuity and ensuring safe and effective care transitions for             dual eligible individuals.

“(7) Eliminating cost-shifting between the Medicare and Medicaid program and    among             related health care providers.

“(8) Improving the quality of performance of providers of services and suppliers    under the Medicare and Medicaid programs.”[xxvii]

Further, § 3021 of the Affordable Care Act established the Center for Medicare and Medicaid Innovation (“CMMI”) within CMS, which is intended “to test innovative payment and service delivery models to reduce program expenditures…while preserving or enhancing the quality of care” for Medicare and Medicaid beneficiaries.[xxviii]  The CMMI was granted authority under §1115A of Title XI of the Social Security Act to waive certain requirements of the Medicare and Medicaid programs in order to test 20 possible models set out in the Act.[xxix]  Two of the models specifically reference dual eligibles: (1) “[a]llowing States to test and evaluate fully integrating care for dual eligible individuals in the State, including the management and oversight of all funds under the applicable titles with respect to such individuals;” and (2) “[a]llowing States to test and evaluate systems of all-payer payment reform for the medical care of residents of the State, including dual eligible individuals.”[xxx]

The Act provides for phased testing of these payment and service delivery models through the CMMI.  In the first phase, models will be tested to determine their effect on program expenditures and the quality of care.[xxxi]  In the second phase, the Secretary of Health and Human Services may expand the duration and scope of a model through rulemaking, “including implementation on a nationwide basis.”[xxxii]  In order to expand a particular model, the Secretary must determine that the model is expected either to reduce spending without reducing the quality of care, or to improve the quality of care without increasing spending.[xxxiii]  Further, the Secretary must determine that the expansion “would not deny or limit the coverage or provision of benefits” for the applicable individuals, and the CMS chief actuary must certify that the expansion would reduce, or at least not increase, net program spending.[xxxiv]

The Call for Integrated Care and Financial Alignment Demonstration Proposals

In April 2011, the Federal Coordinated Health Care Office and the CMMI announced that CMS had awarded contracts to 15 states under a new “State Demonstrations to Integrate Care for Dual Eligible Individuals” initiative.[xxxv]  These states, including Massachusetts, were each awarded up to $1 million “to design strategies for implementing person-centered models that fully coordinate” care for dual eligibles, and CMS indicated that it would be working with these states “to implement the plans that hold the most promise.”[xxxvi]

In July 2011, CMS sent a letter to all state Medicaid directors detailing two new “financial alignment models” that it was seeking to test to improve quality and reduce the cost of care for dual eligibles, and inviting all interested states to submit letters of intent to participate.[xxxvii]  CMS observed that a “longstanding barrier” to integrating care for dual eligibles “has been the financial misalignment between Medicare and Medicaid,” noting that because duals receive services from both programs, the states do not have an incentive to invest in initiatives to better coordinate their care.[xxxviii]  To address this structural problem, CMS proposed two options for realigning the programs’ financial incentives, which it believes will lower costs for both the states and the federal government: a capitated model and a managed fee-for-service model.[xxxix]

Under the first option, a proposed “capitated model” would integrate care for dual eligibles by creating three-way contracts between CMS, the state, and health plans that would be selected through a competitive joint procurement process.[xl]  The plans would receive a blended capitated rate for “the full continuum of benefits” provided to dual eligibles by both Medicare and Medicaid, and the rate would be actuarially developed to provide savings to both the state and federal government.[xli]

Under the second option, a “managed fee-for-service model” or “FFS model,” the state would provide coordinated care for dual eligibles.[xlii]  The state would then be eligible for a retrospective performance payment if it achieved a certain level of savings for the Medicare program (after controlling for any increase in federal Medicaid costs) and if it met quality thresholds.  CMS noted that this model could be attractive to states that had already invested in a coordinated FFS model for Medicaid beneficiaries, and to states that wanted to take advantage of new opportunities through the Affordable Care Act to establish Accountable Care Organizations (ACOs) or Medicaid health homes.[xliii]

By the spring of 2012, 26 states had submitted proposals for the financial alignment demonstration to CMS, including Massachusetts and the 14 other states that had been awarded contracts in the initial 2011 integrated care initiative.[xliv]  CMS has been working with state officials to meet demonstration requirements with the eventual goal of entering into a formal Memorandum of Understanding with each state.

The Massachusetts Dual Eligibles Demonstration Plan

Profile of Dual Eligibles in Massachusetts

There are approximately 242,000 dual eligibles in Massachusetts.[xlv]  In 2009, they accounted for 43 percent of the state’s Medicaid spending, compared with a national average of 38 percent.[xlvi]  Within the Massachusetts dual eligible population, approximately 115,000 are between the ages of 21 and 64, and qualify for Medicare due to chronic illness or disability rather than age.[xlvii]

The Massachusetts Medicaid Policy Institute (“MMPI”) in collaboration with the Massachusetts Medicaid Program (MassHealth) found that combined Medicare and Medicaid spending for the 21 to 64 age group was $2.5 billion in 2008, accounting for 16 percent of all Medicare spending and 20 percent of all Medicaid spending in the state.[xlviii]  On average, combined annual spending was $23,700 per capita for this group.[xlix]

The MMPI further found that 60 percent of Massachusetts dual eligibles in the 21 to 64 age group had diagnoses in at least two of three major categories: physical illness or disability, behavioral diagnosis, or developmental disability.[l]  This subset represented more than 80 percent of total spending.[li]  Spending levels were particularly high for dual eligibles in this age group with developmental disabilities, especially when combined with other diagnoses.  For example, annual per capita spending for dual eligibles diagnosed with a developmental disability was $31,800 on average, rising to $71,300 for dual eligibles who also had a behavioral and physical diagnosis in addition to their developmental disability.[lii]

The Massachusetts Demonstration and Memorandum of Understanding

On August 23, 2012, Governor Patrick’s administration announced that Massachusetts had become the first state to sign a Memorandum of Understanding (“MOU”) with CMS to begin implementation of an integrated care and financial alignment demonstration for dual eligibles.[liii]  The Massachusetts plan focuses on the 115,000 “full” dual eligibles in the state between the ages of 21 and 64 and will last for three years.[liv]  The state has decided to test the capitated model proposed by CMS via three-way contracts between the state, CMS, and new managed care entities called Integrated Care Organizations (“ICOs”) that will receive a blended payment to cover all Medicare and Medicaid services.[lv]

The MOU between Massachusetts and CMS describes the demonstration’s key objectives as follows: “[T]o improve the beneficiary experience in accessing care, deliver person-centered care, promote independence in the community, improve quality, eliminate cost shifting between Medicare and Medicaid and achieve cost savings for the Commonwealth and Federal government through improvements in care and coordination.”[lvi]  The MOU also emphasizes the importance of dual eligible beneficiaries’ involvement and ability to self-direct their care under the new demonstration, and it states that the parties expect improvements in the quality of care and in transitions among care settings for dual eligibles.[lvii]

The stated purpose of the MOU is to lay out the “principles under which the initiative will be implemented and operated” and to outline the preparations that will be necessary for the plan’s implementation.  The MOU notes that additional details, including specifics about the responsibilities of the managed care plans, will be contained in the final contracts between the state, CMS, and the ICOs, which at that time were still being selected through the joint procurement process.[lviii]

Benefits and Service Delivery

Generally, ICOs must provide integrated primary care and behavioral health services to each enrollee, coordinated by a designated Care Coordinator or Clinical Care Manager in conjunction with an Independent Living and Long Term Services and Supports (“IL-LTSS”) Coordinator, who will be an independent contractor from a community-based organization.[lix]  Notably, the requirement for the IL-LTSS Coordinator was added to the proposal based on stakeholder comments received by the state as it was developing the demonstration.[lx]  The IL-LTSS Coordinator will be available to act as an independent facilitator between the enrollee, the ICO, and service providers, as well as to provide expertise about community supports and to ensure that the enrollee receives “person-centered” care.[lxi]

The primary care provider, Care Coordinator, IL-LTSS Coordinator, and other providers will together form an Interdisciplinary Care Team that will work with enrollees to develop and implement an Individualized Care Plan.[lxii]  At the outset, the plan will be based on an initial assessment of the enrollee’s medical, behavioral health, and LTSS needs performed by a registered nurse within 90 days of enrollment.  It will also be based on an in-person comprehensive assessment that evaluates the enrollee’s needs in social, functional, medical, behavioral, wellness, and prevention domains.[lxiii]  The comprehensive assessment must describe the enrollee’s strengths and goals, need for specialists, as well as the care management and coordination plans.[lxiv]

The ICOs are required to provide the full continuum of services covered by Medicare and Medicaid to their enrollees as well as a range of supplemental benefits listed in the MOU, including diversionary behavioral health services, community support services, and expanded oral health, personal care attendant, and durable medical equipment services.[lxv]  The MOU explains that medical necessity determinations for services will be based on existing Medicare and MassHealth definitions, except where there is an overlap between the programs; in that situation, the three-way contracts will set out the coverage and rules for particular services.[lxvi]

Enrollment

Under the MOU, Massachusetts will be using a passive enrollment process that will enroll dual eligibles in an ICO managed care plan unless they affirmatively request to opt out of the demonstration.[lxvii]  The state will conduct two passive enrollment periods,[lxviii] prior to which the ICOs will have an opportunity to market their plans and enroll beneficiaries who would like to self-select a plan.[lxix]

For those beneficiaries who do not voluntarily choose a plan, the state hopes to develop an “intelligent assignment” algorithm that will automatically enroll people in particular plans based on factors such as continuing relationships with existing providers and services.[lxx]  These beneficiaries will receive notice at least 60 days prior to being passively enrolled in a plan and will have the opportunity to opt out of enrollment.[lxxi]  Further, once enrolled, dual eligibles may choose to disenroll from their managed care plan on a month-to-month basis.[lxxii]

In order to promote continuity of care, the ICOs must allow enrollees to maintain their current providers and services for up to 90 days after enrollment or until the ICO completes the initial assessment of the enrollee’s needs, whichever comes later.[lxxiii]  Further, under certain circumstances the ICOs will be required to offer single-case, out-of-network agreements to an enrollee’s service providers after the 90-day period if the providers will accept the in-network payment rate.[lxxiv]

Financing, Risk Mitigation, and Program Savings

With respect to financing, the state and CMS will enter into a joint rate-setting process to determine the blended capitated payment rates and contributions will be risk-adjusted.[lxxv]  The MOU provides that the state will arrive at a baseline spending and payment rate for Medicaid based on its historic cost data, and CMS will determine a baseline spending and payment rate for Medicare Parts A and B based on a blend of Medicare Advantage projected payment rates and Medicare fee-for-service standardized county rates, which will be weighted by the proportion of dual eligibles that will be moving from each program to the ICOs.[lxxvi]  The baseline rate for Medicare Part D will be based on the national average monthly bid amount for the calendar year.[lxxvii]

The blended payments to the ICOs will be risk-adjusted.  In addition, the state will be creating “high cost risk pools” to help cover the expense of certain long-term supports and services for high-cost enrollees.[lxxviii]  It will withhold a portion of the ICO Medicaid payments in separate risk pools covering enrollees in different rating categories (those likely to need facility-based care or who have “high” community needs).  Risk pool funds will then be divided and distributed among the ICOs based on their share of total costs for these enrollees above a specified threshold amount, to be determined in the three-way contracts.[lxxix]  Finally, the demonstration will include risk corridors during the first year to prevent overpayment or underpayment to particular ICOs.[lxxx]

The MOU states that the demonstration is expected to generate savings for both programs by applying designated savings percentages to the baseline Medicaid and Medicare Part A and B rates in determining the capitated payment rates.[lxxxi]  In the first year of the demonstration, the savings percentage will be one percent, in the second year, two percent, and in the third year it will increase to four percent.[lxxxii]  The savings percentages will not be applied to the Medicare Part D rate.[lxxxiii]  The MOU notes that the state and CMS “agree that there is reasonable expectation” that savings can be achieved while paying the ICOs “capitated rates that are adequate to support access to and utilization of medical and non-medical benefits according to beneficiary needs.”[lxxxiv]

The MOU also establishes a “quality withhold” policy whereby Medicare and Medicaid will withhold a designated percentage of the capitated rate which it will only pay out to the ICOs if they show that they have met certain quality thresholds.[lxxxv]  The quality withhold will be one percent in the first year of the demonstration, two percent in the second year, and three percent in the third.[lxxxvi]

     Appeals, ADA Compliance, Monitoring, and Evaluation

The MOU provides for a unified grievance and appeals process,[lxxxvii] and for the establishment of at least one consumer advisory committee that will give input to the ICO governing boards.[lxxxviii]  The ICOs must also include consumers with disabilities within their governing structure.  In addition, the state and CMS will be developing both monitoring and quality measures to ensure that ICOs and providers comply with the Americans with Disabilities Act, including providing physical access and flexible scheduling, as well as accommodating enrollees who have hearing or cognitive impairments, or who do not speak English.[lxxxix]

Under the MOU, CMS will pay for an independent evaluator to monitor and evaluate the Massachusetts demonstration.  The evaluator will look at enrollee health outcomes, the quality and utilization of care across settings, enrollees’ satisfaction and experience, administrative and system changes and efficiencies, and overall costs or savings for the Medicare and Medicaid programs.[xc]

Implementation: Future Challenges and Opportunities

As the MOU makes clear, many details of the demonstration project still have to be hammered out in the contracts between the state, CMS, and the new ICOs.  Stakeholders and policymakers nationwide will be watching to see how issues are resolved in the contracts and how implementation progresses, as the Massachusetts model may have a significant impact on the demonstrations being developed in other states.

The state Executive Office of Health and Human Services (“EOHHS”) announced in November 2012 that it had selected six organizations to serve as ICOs for the demonstration: Blue Cross and Blue Shield of Massachusetts HMO Blue Inc.; Boston Medical Center HealthNet Plan; Commonwealth Care Alliance; Fallon Total Care, LLC; Neighborhood Health Plan; and Network Health, LLC.[xci]  These organizations are currently engaged in a joint federal and state readiness review process.  The ICOs will then negotiate the contracts with the state and CMS, which are expected to be finalized in March or April 2013.[xcii]

Dual eligibles and disability and consumer advocates in Massachusetts and across the country have said that they see great promise in the demonstration.  Many view it as a critical opportunity to improve the quality of care for dual eligibles and to increase the level of control that they have over the decisions being made about their care and the long-term services and supports they receive.[xciii]  However, these groups and other organizations have also raised concerns about the overall approach that CMS is taking with the demonstration projects and about the contents of the Massachusetts MOU.

Most broadly, state and national groups have expressed unease about the wide scope and short implementation timeline of the proposed dual eligible demonstrations, the use of passive enrollment, and whether capitated rates will be sufficient for plans to provide adequate care to such medically complex individuals.  For example, in comments submitted to CMS, the Medicare Payment Advisory Commission (“MedPAC”) stated that it believed the scope of the demonstrations was too broad, should be limited to only a few states, and should not apply to all or even to a majority of full dual eligibles in a given state.[xciv]  It noted that given the current size of the proposed demonstrations, plans initially might not have the capacity to care for such large numbers of dual eligibles.  Further, MedPAC pointed out that if demonstrations were not successful it could be very challenging to transition so many people out of the plans.  It also suggested that CMS consider not applying savings reductions to capitated payment rates in the first year of the demonstrations, given how much uncertainty there is about what actual program costs will be and the ability of plans to provide care under reduced rates.[xcv]

The American Medical Association (“AMA”) has suggested that CMS delay the implementation of the dual eligible demonstrations for at least a year to provide more time for stakeholders to review and comment on state proposals and to work with CMS, the states, and health plans to address areas of concern.[xcvi]  The AMA, the Federation of American Hospitals, and other provider associations have also voiced concern about whether providers will continue to be reimbursed at Medicare rates under the new demonstrations, or if plans will try to achieve savings by reducing rates rather than by improving coordination of care.[xcvii]

With respect to Massachusetts in particular, there is concern about the MOU’s lack of specificity and the number of issues that still need to be resolved in the three-way contracts, as well as whether the implementation process will be sufficiently transparent.  Various groups have raised questions about whether the ICOs will have enough time to build the necessary competence and capacity to adequately serve such a high-need population before enrollment begins.[xcviii]  Further, many are worried about the passive enrollment process, specifically that duals may not fully understand the program—especially those with intellectual and developmental disabilities—and that once enrolled they could lose access to providers with whom they have built vital long-standing relationships.[xcix]  There is also unease about the method that the state will be using to assign dual eligibles to particular plans and whether the disability community will be consulted about its design.[c]

To address these and other concerns, the state has announced the creation of an “Implementation Council” that it says will promote transparency and actively monitor implementation of the duals demonstration.[ci]  The Council will include dual eligibles as well as representatives from medical, behavioral health and long-term services and supports providers and from community-based organizations.[cii]  The state has indicated that it also plans to establish an ombudsperson role for the demonstration.[ciii]

Finally, EOHHS recently announced that the state and CMS have decided to delay demonstration enrollment by several months in order to “ensure that there is sufficient time for all critical implementation milestones to be achieved…including robust public awareness and targeted outreach efforts so that individuals have a meaningful opportunity to learn about the Demonstration and select an ICO prior to the auto-assignment process.”[civ]  The MOU originally provided for ICO plan marketing to begin in January 2013, with voluntary self-selected enrollment beginning in April 2013 and passive enrollment periods slated for July and October 2013.  Under the revised implementation timeline, ICOs will now begin outreach to dual eligibles in May 2013 for voluntary enrollment beginning July 1, 2013, followed by the two passive enrollment periods beginning October 1, 2013 and January 1, 2014.[cv]

Conclusion

As the dual eligibles demonstration is implemented in the coming months and years, it remains to be seen whether the state will be able to lower costs by more effectively and efficiently providing care for dual eligible beneficiaries, and how the state’s experience with using a capitated financial model will compare with that of states choosing to implement a managed fee-for-service plan.  What is certain is that the rest of the country will be watching with interest to see whether Massachusetts is successful in its latest attempt to lead the nation in improving the quality of health care while containing its cost.

Margaretta Homsey Kroeger is a Skadden Fellow at Greater Boston Legal Services in the Elder, Health and Disability Unit, where she focuses on advocating for youth with disabilities who are aging out of the foster care system. She provides outreach and direct legal representation to youth who need assistance accessing disability benefits, health care, and related services. Prior to her fellowship, Ms. Kroeger clerked for Justice William P. Robinson III of the Rhode Island Supreme Court. She received her law degree from Boston College Law School, where she was a Public Service Scholar and served as an articles editor of the Boston College Law Review and as vice president of the Public Interest Law Foundation. She received her undergraduate degree from Harvard University with a con


[i] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces First in the Nation Comprehensive Health Care Option for Dual Eligible Individuals Approved by Obama Administration (Aug. 23, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/first-in-the-nation-comprehensive-health-care-option.html.

[ii] The Kaiser Commission on Medicaid and the Uninsured, Massachusetts’ Demonstration to Integrate Care and Align Financing for Dual Eligible Beneficiaries 3 (Oct. 2012), http://www.kff.org/medicaid/upload/8291-02.pdf [hereinafter “Massachusetts’ Demonstration to Integrate Care”].

[iii] Letter from CMS Center for Medicaid, CHIP and Survey & Certification and Medicare-Medicaid Coordination Office to State Medicaid Directors (Jul. 8, 2011), available at http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/Financial_Models_Supporting_Integrated_Care_SMD.pdf [hereinafter “Letter from CMS to State Medicaid Directors”].

[iv] The Kaiser Commission on Medicaid and the Uninsured, Medicaid’s Role for Dual Eligible Beneficiaries 7 (April 2012), http://www.kff.org/medicaid/upload/7846-03.pdf [hereinafter “Medicaid’s Role for Dual Eligible Beneficiaries”].

[v] Letter from CMS to State Medicaid Directors, supra n.3.

[vi] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 1-3.

[vii] Id.

[viii] The Kaiser Family Foundation, Medicare’s Role for Dual Eligible Beneficiaries 1 (April 2012), http://www.kff.org/medicare/upload/8138-02.pdf [hereinafter “Medicare’s Role for Dual Eligible Beneficiaries”].

[ix] Id. at 2.

[x] See Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 2.

[xi] See Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 2.

[xii] See Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 2.

[xiii] Id. at 4.

[xiv] Id.

[xv] Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 3.  For example, in 2008, 55 percent of dual eligibles had three or more chronic conditions, as compared with 44 percent of other Medicare beneficiaries, and 58 percent had a cognitive or mental impairment, as compared with 25 percent of other beneficiaries.  Id.  In addition, 44 percent of dual eligibles required assistance with activities of daily living versus 26 percent of other Medicare recipients, and 13 percent lived in nursing homes or mental health facilities, compared with one percent of non-dual eligibles. Id.

[xvi] Id. at 4.  Among dual eligibles nationwide, 26 percent had at least one hospitalization per year, compared with 18 percent of other Medicare beneficiaries, 17 percent had an emergency room visit compared with 12 percent of other beneficiaries, and nine percent had stayed in a skilled nursing facility versus four percent of other beneficiaries.  Id.  Under the Medicaid program, 69.1 percent of dual eligibles spending was for long-term care services, while 15.8 percent was for Medicare acute care cost-sharing, and  9.2 percent went toward Medicare premiums.  Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 7.

[xvii] Medicaid’s Role for Dual Eligible Beneficiaries, supra n.4, at 7; Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 2.  Within the Medicare program, average annual spending on each dual eligible beneficiary was $14,169 in 2008, compared with $7,933 for other Medicare beneficiaries.  Medicare’s Role for Dual Eligible Beneficiaries, supra n.8, at 4.

[xviii] See Community Catalyst, Dual Eligible Demonstration Projects: Top Ten Priorities for Consumer Advocates 1 (March 2012), http://www.communitycatalyst.org/doc_store/publications/Top_Ten_Duals_Projects_Guide_Advocates.pdf.

[xix] See Letter from CMS to State Medicaid Directors, supra n.3; The Kaiser Family Foundation, Health Reform Opportunities: Improving Policy for Dual Eligibles 4 (Aug. 2009), http://www.kff.org/medicaid/upload/7957.pdf.

[xx] The Medicare Payment Advisory Commission (MedPAC), Report to the Congress: Aligning Incentives in Medicare 129 (June 2010), http://www.medpac.gov/documents/jun10_entirereport.pdf.

[xxi] Id. at 141.

[xxii] Id. at 140-41.

[xxiii] Id. at 141.

[xxiv] The “Affordable Care Act” refers to the Patient Protection and Affordable Care Act (Pub. L. 111-148) enacted on March 23, 2010, as revised by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152).

[xxv] Affordable Care Act § 2602(a).

[xxvi] Id. § 2602(b).

[xxvii] Id. § 2602(c).

[xxviii] Affordable Care Act §3021(a), adding § 1115A to Title XI of the Social Security Act, codified at 42 U.S.C. 1315a(a)(1).

[xxix] 42 U.S.C. 1315a(b).

[xxx] 42 U.S.C. 1315a(b)(2)(B)(x)-(xi).

[xxxi] 42 U.S.C. 1315a(b)(1).

[xxxii] 42 U.S.C. 1315a(c).

[xxxiii] 42 U.S.C. 1315a(c)(1)(A)-(B).

[xxxiv] 42 U.S.C. 1315a(c)(2)-(3).

[xxxv] CMS Office of Public Affairs, 15 States Win Contracts to Develop New Ways to Coordinate Care for People with Medicare and Medicaid (April 14, 2011), available at http://www.cms.gov/apps/media/press/factsheet.asp?Counter=3929&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numdays=3500&sr.  The 15 states selected were California, Colorado, Connecticut, Massachusetts, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee, Vermont, Washington and Wisconsin.  Id.

[xxxvi] Id.

[xxxvii] Letter from CMS to State Medicaid Directors, supra n.3.

[xxxviii] Id.

[xxxix] Id.

[xl] Id.

[xli] Id.

[xlii] Id.

[xliii] Id.

[xliv] The Kaiser Commission on Medicaid and the Uninsured, Explaining the State Integrated Care and Financial Alignment Demonstrations for Dual Eligible Beneficiaries 2 (Oct. 2012), http://www.kff.org/medicaid/upload/8368.pdf.  The 26 states that submitted proposals were Arizona, California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Massachusetts, Michigan, Minnesota, Missouri, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin.  Id. at 1-2.  For a current list of states with active financial alignment demonstration proposals, visit https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/FinancialModelstoSupportStatesEffortsinCareCoordination.html.

[xlv] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 3.

[xlvi] The Kaiser Family Foundation, Individual State Profiles, Massachusetts: Dual Eligibles, available at http://www.statehealthfacts.org/profileind.jsp?cat=6&rgn=23&sub=76.  That year, Massachusetts averaged $23,790 in annual Medicaid spending per dual eligible versus the national average of $16,325.  Id.

[xlvii] Massachusetts Medicaid Policy Institute, Dual Eligibles in Massachusetts: A Profile of Health Care Services and Spending for Non-Elderly Adults Enrolled in Both Medicare and Medicaid 4 (Sept. 2011), http://bluecrossmafoundation.org/sites/default/files/MMPI%20Duals%20Chart%20Pack_0.pdf.

[xlviii] Id.  The statistics in the report are based on a data set comprised of 105,000 duals between the ages of 21 and 64 who received fee-for-service coverage, and excludes the approximately 10,000 additional duals in this group who were enrolled in managed care.  Id.

[xlix] Id.  When broken down by type of service, 35 percent of spending went toward long-term support services for these dual eligibles, 22 percent went toward inpatient care, and 13 percent went toward pharmacy costs.  Id. at 21.

[l] Id. at 15.

[li] Id.

[lii] Id. at 19.

[liii] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces First in the Nation Comprehensive Health Care Option for Dual Eligible Individuals Approved by Obama Administration (Aug. 23, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/first-in-the-nation-comprehensive-health-care-option.html.

[liv] Massachusetts’ Demonstration to Integrate Care, supra n.2, at 3.

[lv] Id. at 1.

[lvi] Memorandum of Understanding (MOU) Between The Centers for Medicare & Medicaid Services (CMS) and the Commonwealth of Massachusetts Regarding a Federal-State Partnership to Test a Capitated Financial Alignment Model for Medicare-Medicaid Enrollees, Demonstration to Integrate Care for Dual Eligible Beneficiaries 3 (Aug. 22, 2012), available at https://www.cms.gov/Medicare-Medicaid-Coordination/Medicare-and-Medicaid-Coordination/Medicare-Medicaid-Coordination-Office/Downloads/MassMOU.pdf [hereinafter “MOU”].

[lvii] Id.

[lviii] Id. at 2-4.

[lix] Id. at 26, 58.

[lx] See Massachusetts’ Demonstration to Integrate Care, supra n.2, at 5.

[lxi] MOU, supra n.56, at 26, 58.

[lxii] Id. at 26-27, 58-59.

[lxiii] Id. at 59, 82.

[lxiv] Id. at 59.

[lxv] Id. at 10, 68-81.

[lxvi] Id. at 68.

[lxvii] Id. at 9, 56.

[lxviii] Id. at 56.

[lxix] Id. at 56, 87.

[lxx] Id. at 57.

[lxxi] Id. at 56.

[lxxii] Id. at 9.

[lxxiii] Id. at 82.

[lxxiv] Id. at 83.

[lxxv] Id. at 39.

[lxxvi] Id. at 43-44.

[lxxvii] Id. at 45.

[lxxviii] Id. at 52.

[lxxix] Id.

[lxxx] Id. at 52-53.

[lxxxi] Id. at 46.

[lxxxii] Id.

[lxxxiii] Id.

[lxxxiv] Id.

[lxxxv] Id. at 47.  The MOU contains charts that lay out the specific quality withhold measures to be considered, broken down by demonstration year.  Id. at 47-50.

[lxxxvi] Id. at 48-49.

[lxxxvii] Id. at 15.

[lxxxviii] Id. at 13-14.

[lxxxix] Id. at 12-13.

[xc] Id. at 20, 106.

[xciii] Massachusetts Executive Office of Health and Human Services, Patrick-Murray Administration Announces Health Care Cost Containment Measure to Serve 111,000 Dually Eligible Individuals (June 19, 2012), available at http://www.mass.gov/eohhs/gov/newsroom/press-releases/eohhs/health-care-cost-containment-measure-to-serve-111000.html.

[xciv] See Letter from Medicare Payment Advisory Commission (MedPAC) to Marilyn Tavenner, CMS Acting Administrator (Jul. 11, 2012), available at http://www.medpac.gov/documents/07112012_MedPAC_Comment_CMS_demos_states_integratedcare_dualeligibles.pdf.

[xcv] See id.

[xcvi] See Letter from American Medical Association to Marilyn Tavenner, CMS Acting Administrator (Jul. 19, 2012), available at http://www.ama-assn.org/resources/doc/omss/temp/i-12/1-2.pdf.

[xcvii] See id.; see also The Advisory Board Company, In 26-State Dual-Eligible Demo, Hospitals Push Insurers to Pay Medicare Rates (Sept. 20, 2012), http://www.advisory.com/Daily-Briefing/2012/09/20/In-26-state-dual-eligible-demo-hospitals-push-insurers-to-pay-Medicare-rates; Letter from Federation of American Hospitals to Marilyn Tavenner, CMS Acting Administrator (April 19, 2012), available at http://www.fah.org/fahCMS/Documents/On%20The%20Record/Public%20Comments/2012/FAH_Comments_Capitated_Finan_Align_Demo_Guid.pdf.

[xcviii] See, e.g., Letter from Dennis Heaphy and Bill Henning, Co-Chairs of Disability Advocates Advancing our Healthcare Rights (DAAHR), to Massachusetts EOHHS Secretary JudyAnn Bigby, MD, and CMS Medicare-Medicaid Coordination Office Director Melanie Bella (Sept. 18. 2012), available at

http://www.masslegalservices.org/content/letter-disability-rights-coalition-sec-bigby-duals-memo-understanding; Memorandum from DAAHR and the ARC of Massachusetts to the Massachusetts Congressional Delegation, Memorandum on Needed Changes or Clarifications in Massachusetts Medicare/Medicaid Integration Demonstration Project (Oct. 1, 2012), available at

https://www.arcmass.org/LinkClick.aspx?fileticket=PspW5h00DeE%3D&tabid=114.

[xcix] See id.

[c] Id.; see also National Committee to Preserve Social Security and Medicare and the National Senior Citizens Law Center, Comments on the Massachusetts Memorandum of Understanding, available at  http://www.ncpssm.org/Portals/0/pdf/comments-dual-eligible-demonstrations.pdf.

[ci] See Massachusetts Executive Office of Health and Human Services, MassHealth Demonstration
to Integrate Care for Dual Eligibles, Materials from Nov. 2, 2012 Open Meeting, available at http://www.mass.gov/eohhs/provider/guidelines-resources/services-planning/national-health-care-reform-plan/federal-health-care-reform-initiatives/integrating-medicare-and-medicaid/materials-from-previous-meetings.html.

[cii] Id.

[ciii] Id.

[cv] Id.

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