§ 365-F — Consumer directed personal assistance program

§ 365-f. Consumer directed personal assistance program. 1. Purpose and\nintent. The consumer directed personal assistance program is intended to\npermit chronically ill and/or physically disabled individuals receiving\nhome care services under the medical assistance program greater\nflexibility and freedom of choice in obtaining such services. The\ndepartment shall regularly monitor district participation in the program\nby reviewing the implementation plans submitted pursuant to this\nsection. The department shall provide guidance to the districts to\nimprove compliance with implementation plans and promote consistency\namong counties regarding approved service levels based on the\nassessments required by this section. In addition, the department shall\nprovide technical assistance and such other assistance as may be\nnecessary to assist such districts in assuring access to the program for\neligible individuals.\n 2. Eligibility. All eligible individuals receiving home care shall\nhave the opportunity to apply for participation in the program no less\nthan annually. Each social services district shall file an\nimplementation plan with the commissioner of the department of health,\nwhich shall be updated annually. Such updates shall be submitted no\nlater than November thirtieth of each year. Beginning on June thirtieth,\ntwo thousand nine, the plans and updates submitted by districts shall\nrequire the approval of the department. Implementation plans shall\ninclude district enrollment targets, describe methods for the provision\nof notice and assistance to interested individuals eligible for\nenrollment in the program, and shall contain such other information as\nshall be required by the department. An "eligible individual", for\npurposes of this section is a person who:\n (a) is eligible for long term care and services provided by a\ncertified home health agency, long term home health care program or AIDS\nhome care program authorized pursuant to article thirty-six of the\npublic health law, or is eligible for personal care services provided\npursuant to this article, and who with the provision of such services is\ncapable of safely remaining in the community in accordance with the\nstandards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and\nconsider whether an individual is capable of safely remaining in the\ncommunity;\n (b) is eligible for medical assistance;\n (c) has been determined by the social services district, pursuant to\nan assessment of the person's appropriateness for the program, conducted\nwith an appropriate long term home health care program, a certified home\nhealth agency, or an AIDS home care program or pursuant to the personal\ncare program, as being in need of home care services or private duty\nnursing and as needing at least limited assistance with physical\nmaneuvering with more than two activities of daily living, or for\npersons with a dementia or Alzheimer's diagnosis, as needing at least\nsupervision with more than one activity of daily living, provided that\nthe provisions related to activities of daily living in this paragraph\nshall only apply to persons who initially seek eligibility for the\nprogram on or after October first, two thousand twenty, and who is able\nand willing or has a designated representative, including a legal\nguardian able and willing to make informed choices, or a designated\nrelative or other adult who is able and willing to assist in making\ninformed choices, as to the type and quality of services, including but\nnot limited to such services as nursing care, personal care,\ntransportation and respite services; and\n (d) meets such other criteria, as may be established by the\ncommissioner, which are necessary to effectively implement the\nobjectives of this section.\n 3. Division of responsibilities. Eligible individuals who elect to\nparticipate in the program assume the responsibility for services under\nsuch program as mutually agreed to by the eligible individual and\nprovider and as documented in the eligible individual's record,\nincluding, but not limited to, recruiting, hiring and supervising their\npersonal assistants. For the purposes of this section, personal\nassistant shall mean an adult who has obtained an individual unique\nidentifier from the state by or before a date determined by the\ncommissioner of health in consultation with the Medicaid inspector\ngeneral, and provides services under this section to the eligible\nindividual under the eligible individual's instruction, supervision and\ndirection or under the instruction, supervision and direction of the\neligible individual's designated representative, provided that a person\nlegally responsible for an eligible individual's care and support, an\neligible individual's spouse or designated representative may not be the\npersonal assistant for the eligible individual; however, a personal\nassistant may include any other adult relative of the eligible\nindividual, provided, however, that the program determines that the\nservices provided by such relative are consistent with an individual's\nplan of care and that the aggregate cost for such services does not\nexceed the aggregate costs for equivalent services provided by a\nnon-relative personal assistant. Any personal information submitted to\nobtain such unique identifier shall be maintained as confidential\npursuant to article six-A of the public officers law ("New York state\nprivacy protection law"). Such individuals shall be assisted as\nappropriate with service coverage, supervision, advocacy and management.\nProviders shall not be liable for fulfillment of responsibilities agreed\nto be undertaken by the eligible individual. This subdivision, however,\nshall not diminish the participating provider's liability for failure to\nexercise reasonable care in properly carrying out its responsibilities\nunder this program, which shall include monitoring such individual's\ncontinuing ability to fulfill those responsibilities documented in his\nor her records. Failure of the individual to carry out his or her agreed\nto responsibilities may be considered in determining such individual's\ncontinued appropriateness for the program.\n 4-a. Fiscal intermediary services. (a) For the purposes of this\nsection:\n (i) "Statewide fiscal intermediary" means an entity that provides\nfiscal intermediary services and has a contract for providing such\nservices with the department of health and is selected through the\nprocurement process described in paragraph (b) of this subdivision.\n (ii) Fiscal intermediary services shall include the following\nservices, performed on behalf of the consumer to facilitate the\nconsumer's role as the employer:\n (A) wage and benefit processing for consumer directed personal\nassistants;\n (B) processing all income tax and other required wage withholdings;\n (C) complying with workers' compensation, disability and unemployment\nrequirements;\n (D) maintaining personnel records for each consumer directed personal\nassistant, including time records and other documentation needed for\nwages and benefit processing and a copy of the medical documentation\nrequired pursuant to regulations established by the commissioner;\n (E) ensuring that the health status of each consumer directed personal\nassistant is assessed prior to service delivery pursuant to regulations\nissued by the commissioner;\n (F) maintaining records of service authorizations or reauthorizations;\n (G) monitoring the consumer's or, if applicable, the designated\nrepresentative's continuing ability to fulfill the consumer's\nresponsibilities under the program and promptly notifying the\nauthorizing entity of any circumstance that may affect the consumer's\nor, if applicable, the designated representative's ability to fulfill\nsuch responsibilities;\n (H) complying with regulations established by the commissioner\nspecifying the responsibilities of fiscal intermediaries providing\nservices under this title;\n (I) entering into a department approved memorandum of understanding\nwith the consumer that describes the parties' responsibilities under\nthis program; and\n (J) other related responsibilities which may include, as determined by\nthe commissioner, assisting consumers to perform the consumers'\nresponsibilities under this section and department regulations in a\nmanner that does not infringe upon the consumer's responsibilities and\nself-direction.\n (ii-a) The commissioner shall require any managed care plans, managed\nlong-term care plans, local social service districts, and other\nappropriate long-term service programs offering consumer directed\npersonal assistance services to contract with the statewide fiscal\nintermediary set forth in subparagraph (i) of this paragraph to provide\nall fiscal intermediary services to consumers.\n (ii-b) The statewide fiscal intermediary shall subcontract to\nfacilitate the delivery of fiscal intermediary services to an entity\nthat is a service center for independent living under section one\nthousand one hundred twenty-one of the education law that has been\nproviding fiscal intermediary services since January first, two thousand\ntwenty-four or earlier. The statewide fiscal intermediary shall further\nsubcontract to facilitate the delivery of fiscal intermediary services\nwith at least one entity per rate setting region that has a proven\nrecord of delivering services to individuals with disabilities and the\nsenior population, and has been providing fiscal intermediary services\nsince January first, two thousand twelve; provided that such\nsubcontractor shall be required to provide any delegated fiscal\nintermediary services with cultural and linguistic competency specific\nto the population of consumers and those of the available workforce, and\nshall comply with the requirements for registration as a fiscal\nintermediary set forth in subdivision four-a-one of this section. For\npurposes of this section, "delegated fiscal intermediary services" are\ndefined as fiscal intermediary services as set forth in subparagraph\n(ii) of paragraph (a) of this subdivision that the statewide fiscal\nintermediary includes in a subcontract and which shall include services\ndesigned to meet the needs of consumers of the program, which may\ninclude assisting consumers with navigation of the program by providing\nindividual consumer assistance and support as needed, consumer peer\nsupport, and education and training to consumers on their duties under\nthe program.\n (ii-c) The statewide fiscal intermediary shall be responsible for\npayment to subcontractors for delegated fiscal intermediary services.\nThe payment shall not require a certification by the commissioner if\npayments are reasonably related to the costs of efficient delivery of\nsuch services.\n (iii) Fiscal intermediaries are not responsible for, and fiscal\nintermediary services shall not include, fulfillment of the\nresponsibilities of the consumer or, if applicable, the consumer's\ndesignated representative as established by the commissioner. A fiscal\nintermediary's responsibilities shall not include, and a fiscal\nintermediary shall not engage in: managing the plan of care including\nrecruiting and hiring a sufficient number of individuals who meet the\ndefinition of consumer directed personal assistant, as such term is\ndefined by the commissioner, to provide authorized services that are\nincluded on the consumer's plan of care; training, supervising and\nscheduling each consumer directed personal assistant; terminating the\nconsumer directed personal assistant's employment; or assuring that each\nconsumer directed personal assistant competently and safely performs the\npersonal care services, home health aide services and skilled nursing\ntasks that are included on the consumer's plan of care. A fiscal\nintermediary shall exercise reasonable care in properly carrying out its\nresponsibilities under the program.\n (b) Notwithstanding section one hundred sixty-three of the state\nfinance law, section one hundred twelve of the state finance law, or\nsection one hundred forty-two of the economic development law the\ncommissioner shall enter into a contract under this subdivision with an\neligible contractor that submits an offer for a contract, provided,\nhowever, that:\n (i) the department shall post on its website:\n (A) a description of the proposed statewide fiscal intermediary\nservices to be provided pursuant to a contract in accordance with this\nsubdivision;\n (B) the criteria for selection of the statewide fiscal intermediary,\nwhich shall include at a minimum that the eligible contractor is capable\nof performing statewide fiscal intermediary services with demonstrated\ncultural and language competencies specific to the population of\nconsumers and those of the available workforce, has experience serving\nindividuals with disabilities, and as of April first, two thousand\ntwenty-four is providing services as a fiscal intermediary on a\nstatewide basis with at least one other state;\n (C) the manner by which prospective contractors may seek such\nselection, which may include submission by electronic means;\n (ii) all offers that are received from prospective contractors in a\ntimely fashion and that meet the criteria set forth in clause (B) of\nsubparagraph (i) of this paragraph shall be reviewed by the\ncommissioner; and\n (iii) the commissioner shall award such contract to the contractor\nthat meets the criteria for selection and offers the best value for\nproviding the services required pursuant to this section and the needs\nof consumers.\n (c) (i) The commissioner shall require a fiscal intermediary to report\nannually on the direct care and administrative costs of personal\nassistance services as accounted for by the fiscal intermediary. The\ndepartment shall specify the format of such reports, determine the type\nand amount of information to be submitted, and require the submission of\nsupporting documentation, provided, however, that the department shall\nprovide no less than ninety calendar days' notice before such reports\nare due.\n (ii) If the department determines that the cost report submitted by a\nprovider is inaccurate or incomplete, the department shall notify the\nprovider in writing and advise the provider of the correction or\nadditional information that the provider must submit. The provider must\nsubmit the corrected or additional information within thirty calendar\ndays from the date the provider receives the notice.\n (iii) The department shall grant a provider an additional thirty\ncalendar days to submit the original, corrected or additional cost\nreport when the provider, prior to the date the report is due, submits a\nwritten request to the department for an extension and establishes to\nthe department's satisfaction that the provider cannot submit the report\nby the date due for reasons beyond the provider's control.\n (iv) All reports shall be certified by the owner, administrator, chief\nexecutive officer, or public official responsible for the operation of\nthe provider. The cost report form shall include a certification form,\nwhich shall specify who must certify the report.\n 4-a-1. (a) Fiscal intermediary registration. Except for the statewide\nfiscal intermediary and its subcontractors, as of April first, two\nthousand twenty-five, no entity shall provide, directly or through\ncontract, fiscal intermediary services. All subcontractors of the\nstatewide fiscal intermediary, shall register with the department within\nthirty days of being selected as a subcontractor.\n (b) In selecting its subcontractors, the statewide fiscal intermediary\nshall consider demonstrated compliance with all applicable federal and\nstate laws and regulations, including but not limited to, marketing and\nlabor practices, cost reporting, and electronic visit verification\nrequirements.\n 4-b. Actions involving the registration of a fiscal intermediary.\n (a) A fiscal intermediary's registration may be revoked, suspended,\nlimited, or annulled by the commissioner upon thirty days' written\nnotice to the fiscal intermediary, if the commissioner finds that the\nfiscal intermediary has failed to comply with the provisions of this\nsection or regulations promulgated hereunder.\n (b) The commissioner may issue orders and take other actions as\nnecessary and appropriate to prohibit and prevent the provision of\nfiscal intermediary services by an unregistered entity.\n (c) All orders or determinations under this subdivision shall be\nsubject to review as provided in article seventy-eight of the civil\npractice law and rules.\n 4-c. The commissioner shall convene and chair a stakeholder workgroup\npertaining to fiscal intermediary services and the needs of consumers.\nThe workgroup shall consist of, at a minimum, representatives of service\ncenters for independent living; statewide associations of fiscal\nintermediaries; representatives of managed care entities under article\nforty-four of the public health law and local social service districts;\nconsumers; and representatives of advocacy groups representing consumers\nof services under this section. The workgroup shall be established no\nlater than May fifteenth, two thousand nineteen. The workgroup shall\nidentify and develop best practices pertaining to the delivery of fiscal\nintermediary services; inform the criteria for use by the department for\nthe selection of entities under subdivision four-a of this section;\nidentify whether services differ for certain consumers and under what\ncircumstances; inform criteria in relation to the development of quality\nreporting requirements; and work with the department to develop\ntransition plans for consumers that may need to transition to another\nfiscal intermediary.\n 4-d. Fiscal intermediaries ceasing operation. (a) Where a fiscal\nintermediary is ceasing operation or will no longer serve the consumer's\narea, the fiscal intermediary shall:\n (i) deliver written notice forty-five calendar days in advance to the\naffected consumers, consumer representatives, personal assistants, the\ndepartment, and any local social services districts or managed care\nplans with which the fiscal intermediary contracts. Within five business\ndays of receipt of the notice, the local social services district or\nmanaged care plan shall acknowledge the notice and provide the affected\nconsumers with a list of other fiscal intermediaries operating in the\nsame county or managed care plan network as appropriate;\n (ii) not take any action that would prevent a personal assistant from\nmoving to a new fiscal intermediary of the consumer's choice, nor\nrequire the consumer or the personal assistant to switch to a personal\ncare or home health care program not under this section; and\n (iii) upon request and consent, promptly transfer all records relating\nto the individual's health and care authorizations, and personnel\ndocuments to the fiscal intermediary or personal care or home health\ncare provider chosen by the consumer and assume all liability for\nomissions or errors in such records.\n (b) Where a consumer is electing to transfer his or her services to a\nnew fiscal intermediary or a personal care or home health care provider\nby the consumer's independent choice, the fiscal intermediary being\ndiscontinued shall comply with subparagraphs (ii) and (iii) of paragraph\n(a) of this subdivision.\n (c) Where a fiscal intermediary is suspending or ceasing operation\npursuant to an order under subdivision four-b of this section, or has\nfailed to submit an offer for a contract, or has been denied a contract\nunder this section, all the provisions of this subdivision shall apply\nexcept subparagraph (i) of paragraph (a) of this subdivision, notice of\nwhich to all parties shall be provided by the department as appropriate.\n (e) The local social services district or managed care plan, as\nappropriate, shall supervise the transition of services and transfer of\nrecords and maintain provision of services by the personal assistant(s)\nchosen by the individual.\n (f) Any transfer under this subdivision shall not diminish any of an\nindividual's rights relating to continuity of care, utilization review\nor fair hearing appeals and aid continuing.\n 5. Waivers, regulation and effectiveness.\n (a) The commissioner may, subject to the approval of the director of\nthe budget, file for such federal waivers as may be needed for the\nimplementation of the program.\n (b) Notwithstanding any other provision of law, the commissioner is\nauthorized to waive any provision of section three hundred sixty-seven-b\nof this title related to payment and may promulgate regulations\nnecessary to carry out the objectives of the program including minimum\nsafety, and health and immunization criteria and training requirements\nfor personal assistants, and which describe the responsibilities of the\neligible individuals in arranging and paying for services and the\nprotections assured such individuals if they are unable or no longer\ndesire to continue in the program, the fiscal intermediary registration\nprocess, standards, and time frames, and those regulations necessary to\nensure adequate access to services.\n 6. Notwithstanding any inconsistent provision of this section or any\nother contrary provision of law, managed care programs established\npursuant to section three hundred sixty-four-j of this title and managed\nlong term care plans and other care coordination models established\npursuant to section four thousand four hundred three-f of the public\nhealth law shall offer consumer directed personal assistance programs to\nenrollees.\n 7. This section shall be effective if, to the extent that, and as long\nas, federal financial participation is available for expenditures\nincurred under this section.\n 8. Subject to the availability of federal financial participation, the\nprovisions of this section governing consumer directed personal\nassistance services shall also apply to such services when offered under\nthe home and community-based attendant services and supports state plan\noption (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).\n 9. Notwithstanding any contrary provision of law and subject to the\navailability of federal financial participation, for periods on and\nafter April first, two thousand fourteen, the commissioner is authorized\nto make temporary periodic lump-sum Medicaid payments to fiscal\nintermediaries principally engaged in providing consumer directed\npersonal assistance services to Medicaid patients, in accordance with\nthe following:\n (a) eligible fiscal intermediaries shall include:\n (i) providers undergoing closure or substantial reduction in the\nvolume of care;\n (ii) providers impacted by the closure of other health care providers;\n (iii) providers subject to mergers, acquisitions, consolidations or\nrestructuring;\n (iv) providers impacted by the merger, acquisition, consolidation or\nrestructuring of other health care providers;\n (v) providers seeking to ensure that access to care is maintained or\nincreased; or\n (vi) on or after January first, two thousand fifteen, providers\nimpacted by changes to the Fair Labor Standards Act requiring overtime\npay for personal assistants working in excess of forty hours per week.\n (b) providers seeking Medicaid payments under this subdivision shall\ndemonstrate through submission of a written proposal to the commissioner\nthat the additional resources provided by such Medicaid payments will\nachieve one or more of the following:\n (i) protect or enhance access to care;\n (ii) protect or enhance quality of care;\n (iii) improve the cost effectiveness of the delivery of health care\nservices; or\n (iv) otherwise protect or enhance the health care delivery system, as\ndetermined by the commissioner.\n (c)(i) Such written proposal shall be submitted to the commissioner at\nleast sixty days prior to the requested commencement of such Medicaid\npayments and shall include a proposed budget to achieve the goals of the\nproposal. Any Medicaid payments issued pursuant to this subdivision\nshall be made over a specified period of time, as determined by the\ncommissioner, of up to three years. At the end of the specified\ntime-frame such payments shall cease. The commissioner may establish, as\na condition of receiving such Medicaid payments, benchmarks and goals to\nbe achieved in conformity with the provider's written proposal as\napproved by the commissioner and may also require that the provider\nsubmit such periodic reports concerning the achievement of such\nbenchmarks and goals as the commissioner deems necessary. Failure to\nachieve satisfactory progress, as determined by the commissioner, in\naccomplishing such benchmarks and goals shall be a basis for ending the\nprovider's Medicaid payments prior to the end of the specified\ntimeframe.\n (ii) The commissioner may require that applications submitted pursuant\nto this subdivision be submitted in response to and in accordance with a\nrequest for applications or a request for proposals issued by the\ncommissioner.\n