August 11, 2020

Volume X, Number 224

August 10, 2020

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New York Proposes Changes to Personal Care and Consumer Directed Personal Assistance Services Regulations

In an effort to control New York’s Medicaid spending, Governor Andrew Cuomo reconstituted the Medicaid Redesign Team (MRT II) in early 2020.  The MRT II brought together various health care stakeholders to develop recommendations to contain spending growth while advancing Medicaid program objectives.  In March, the MRT II released its proposals, which included specific recommendations to the personal care services (PCS) and consumer directed personal assistance services (CDPAS) programs.  Based upon the MRT II recommendations that were adopted by the Legislature, the New York State budget amended the Social Services Law and Public Health Law provisions governing PCS and CDPAS.  To align the PCS and CDPAS regulations with the MRT II recommendations and statutory amendments, the Department of Health (DOH) has proposed amendments to the PCS and CDPAS regulations.  The proposed amendments were published in the State Register on July 15, 2020. 

Consistent with the MRT II recommendations, the proposed regulations change the assessment and authorization processes for the PCS and CDPAS programs.  In addition, the proposed regulations extend to Medicaid managed care organizations (MMCOs) through which the vast majority of New York’s Medicaid recipients receive services.

Proposed regulatory changes for the PCS and CDPAS programs include the following:

Significantly, the proposed regulations impose several new requirements to the process for determining whether an individual may receive PCS or CDPAS.  First, the proposed regulations require such services be medically necessary and ordered by a qualified and independent physician, rather than the individual’s attending physician.  Second, the regulations require an independent assessment conducted by a registered nurse and administered by the entity now managing the Conflict-Free Evaluation and Enrollment Center program.  The independent assessor must not have a prior provider-patient relationship with the individual.  Finally, the regulations require that high-need cases – where 12 hours or more of services are recommended – be referred to a clinical review panel made up of independent physicians who must determine whether the proposed plan of care is appropriate. 

Under the proposed regulations, the Local Districts of Social Services (LDSS) and MMCOs remain responsible for significant aspects of the assessment process and will be required to review the results of the independent assessment and medical exam.  Prior to authorizing high-needs cases of more than 12 hours of services per day, the LDSS or MMCO, as applicable, must refer the case to an independent clinical review panel for a medical review of the individual and plan of care.  The independent review panel must recommend whether the plan of care is reasonable and appropriate to maintain the individual’s health and safety in the home, identify other appropriate Medicaid services, and the clinical rationale for such recommendation.  The independent review panel’s recommendation shall not, however, include specific hours or an alternative plan of care.  The LDSS or MMCO, as applicable, must consider the recommendation of the review panel in its decision to authorize services.

The proposed regulations require that an individual’s eligibility for services must be established prior to the provision of services and that the authorization and reauthorization of services must be consistent with the assessment process.  Under the proposed regulations the frequency of reassessments would be reduced from semi-annual to annual, absent a change to the individual’s social circumstances, mental status, or medical condition.

The proposed regulations require PCS and CDPAS recipients to demonstrate a minimum need for assistance with activities of daily living (ADL).  Specifically, individuals with dementia or Alzheimer’s must need supervision with more than one ADL, and all others must need limited assistance with physical maneuvering with more than two ADLs. The proposed regulations also clarify that although supervision and cueing may be provided to assist an individual with nutritional support, environmental support, and personal care functions, they do not constitute standalone personal care services and will not be authorized or reimbursed independent from certain enumerated functions. 

Specific to the CDPAS program, the proposed regulations clarify that a person legally responsible for a consumer’s care and support cannot serve as a consumer directed personal assistant.  The proposed regulations also prohibit consumers from working with more than one fiscal intermediary.  Finally, the proposed regulations include a new definition for live-in-24-hour consumer directed personal assistance, which contemplates an aide getting five hours of uninterrupted sleep during an eight-hour period. 

Consistent with the recommendations of the MRT II, the regulations proposed by DOH are intended to promote consistency and standardization of the provision of PCS and CDPAS throughout the state.  The proposed regulations transfer a number of responsibilities under the PCS and CDPAS programs from the LDSSs and MMCOs to independent third-parties.  Although these changes may provide some administrative relief to LDSSs and MMCOs, they may also impact Certified Home Health Agencies (CHHAs) and Licensed Home Care Services Agencies (LHCSAs) currently under contract with LDSSs and MMCOs to perform assessments.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 198

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About this Author

Tricia Asaro, Greenberg Traurig Law Firm, Albany, Healthcare Law Attorney
Shareholder

Tricia A. Asaro concentrates her practice in the areas of health care and governmental affairs. She has broad experience representing health plans in business negotiations, regulatory compliance matters and corporate governance issues. She also has wide-ranging experience handling health care transactions, particularly regulatory approval of changes in control of health care entities.

518-689-1416
Lynelle Bosworth, Greenberg Traurig Law Firm, Albany, Government Policy and Healthcare Law Attorney
Shareholder

Lynelle Bosworth focuses her practice on government law and policy issues and advises clients on renewable energy, environmental, transportation, finance, racing and gaming, insurance and health care related matters. Lynelle represents private and publicly owned companies and not-for-profit organizations regarding state and federal regulatory and policy matters.

In addition, Lynelle provides legal counsel to health insurers, HMOs and other health care clients in regulatory compliance matters, business negotiations, and corporate transactions. She has wide-ranging experience representing clients on regulatory matters before the New York State Department of Financial Services and the New York State Department of Health. Lynelle also represents clients on Freedom of Information Law issues.

518-689-1469
Whitney Magee Phelps, Greenberg Traurig Law Firm, Albany, Healthcare Law Attorney
Shareholder

Whitney Magee Phelps focuses her practice on state and federal regulatory health care issues, with an emphasis on managed care contracting, antitrust, fraud and abuse issues, health and medical homes, and joint venture arrangements. Her negotiations between and among managed care organizations, federally qualified health centers, IPAs, providers, pharmacy benefit managers and other management vendors include reviewing, drafting and handling all aspects of the negotiation process for both fee-for-service and full risk sharing arrangements. In addition, she has...

518-689-1427
Nicola T. Coleman Government Law & Policy Attorney Greenberg Traurig Albany, NY
Associate

Nicola Coleman focuses her practice on government law and policy issues. She assists clients on a variety of New York State regulatory matters related to insurance, health, housing, and administrative law.

Immediately prior to joining the firm, Nicola served as Deputy Counsel for the New York State Senate Majority, advising the Majority Leader and Chairs of the Health, Insurance and Housing Committees on budgetary and policy priorities regarding health insurance and housing issues. She also assisted in managing staff and coordinating administrative and policy protocols.

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518-689-1481