N.Y. Social Services Law § 365-f: Consumer directed personal assistance program

§ 365-f. Consumer directed personal assistance program. 1. Purpose and

intent. The consumer directed personal assistance program is intended to

permit chronically ill and/or physically disabled individuals receiving

home care services under the medical assistance program greater

flexibility and freedom of choice in obtaining such services. The

department shall regularly monitor district participation in the program

by reviewing the implementation plans submitted pursuant to this

section. The department shall provide guidance to the districts to

improve compliance with implementation plans and promote consistency

among counties regarding approved service levels based on the

assessments required by this section. In addition, the department shall

provide technical assistance and such other assistance as may be

necessary to assist such districts in assuring access to the program for

eligible individuals.

2. Eligibility. All eligible individuals receiving home care shall

have the opportunity to apply for participation in the program no less

than annually. Each social services district shall file an

implementation plan with the commissioner of the department of health,

which shall be updated annually. Such updates shall be submitted no

later than November thirtieth of each year. Beginning on June thirtieth,

two thousand nine, the plans and updates submitted by districts shall

require the approval of the department. Implementation plans shall

include district enrollment targets, describe methods for the provision

of notice and assistance to interested individuals eligible for

enrollment in the program, and shall contain such other information as

shall be required by the department. An "eligible individual", for

purposes of this section is a person who:

(a) is eligible for long term care and services provided by a

certified home health agency, long term home health care program or AIDS

home care program authorized pursuant to article thirty-six of the

public health law, or is eligible for personal care services provided

pursuant to this article, and who with the provision of such services is

capable of safely remaining in the community in accordance with the

standards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and

consider whether an individual is capable of safely remaining in the

community;

(b) is eligible for medical assistance;

(c) has been determined by the social services district, pursuant to

an assessment of the person's appropriateness for the program, conducted

with an appropriate long term home health care program, a certified home

health agency, or an AIDS home care program or pursuant to the personal

care program, as being in need of home care services or private duty

nursing and as needing at least limited assistance with physical

maneuvering with more than two activities of daily living, or for

persons with a dementia or Alzheimer's diagnosis, as needing at least

supervision with more than one activity of daily living, provided that

the provisions related to activities of daily living in this paragraph

shall only apply to persons who initially seek eligibility for the

program on or after October first, two thousand twenty, and who is able

and willing or has a designated representative, including a legal

guardian able and willing to make informed choices, or a designated

relative or other adult who is able and willing to assist in making

informed choices, as to the type and quality of services, including but

not limited to such services as nursing care, personal care,

transportation and respite services; and

(d) meets such other criteria, as may be established by the

commissioner, which are necessary to effectively implement the

objectives of this section.

3. Division of responsibilities. Eligible individuals who elect to

participate in the program assume the responsibility for services under

such program as mutually agreed to by the eligible individual and

provider and as documented in the eligible individual's record,

including, but not limited to, recruiting, hiring and supervising their

personal assistants. For the purposes of this section, personal

assistant shall mean an adult who has obtained an individual unique

identifier from the state by or before a date determined by the

commissioner of health in consultation with the Medicaid inspector

general, and provides services under this section to the eligible

individual under the eligible individual's instruction, supervision and

direction or under the instruction, supervision and direction of the

eligible individual's designated representative, provided that a person

legally responsible for an eligible individual's care and support, an

eligible individual's spouse or designated representative may not be the

personal assistant for the eligible individual; however, a personal

assistant may include any other adult relative of the eligible

individual, provided, however, that the program determines that the

services provided by such relative are consistent with an individual's

plan of care and that the aggregate cost for such services does not

exceed the aggregate costs for equivalent services provided by a

non-relative personal assistant. Any personal information submitted to

obtain such unique identifier shall be maintained as confidential

pursuant to article six-A of the public officers law ("New York state

privacy protection law"). Such individuals shall be assisted as

appropriate with service coverage, supervision, advocacy and management.

Providers shall not be liable for fulfillment of responsibilities agreed

to be undertaken by the eligible individual. This subdivision, however,

shall not diminish the participating provider's liability for failure to

exercise reasonable care in properly carrying out its responsibilities

under this program, which shall include monitoring such individual's

continuing ability to fulfill those responsibilities documented in his

or her records. Failure of the individual to carry out his or her agreed

to responsibilities may be considered in determining such individual's

continued appropriateness for the program.

4-a. Fiscal intermediary services. (a) For the purposes of this

section:

(i) "Statewide fiscal intermediary" means an entity that provides

fiscal intermediary services and has a contract for providing such

services with the department of health and is selected through the

procurement process described in paragraph (b) of this subdivision.

(ii) Fiscal intermediary services shall include the following

services, performed on behalf of the consumer to facilitate the

consumer's role as the employer:

(A) wage and benefit processing for consumer directed personal

assistants;

(B) processing all income tax and other required wage withholdings;

(C) complying with workers' compensation, disability and unemployment

requirements;

(D) maintaining personnel records for each consumer directed personal

assistant, including time records and other documentation needed for

wages and benefit processing and a copy of the medical documentation

required pursuant to regulations established by the commissioner;

(E) ensuring that the health status of each consumer directed personal

assistant is assessed prior to service delivery pursuant to regulations

issued by the commissioner;

(F) maintaining records of service authorizations or reauthorizations;

(G) monitoring the consumer's or, if applicable, the designated

representative's continuing ability to fulfill the consumer's

responsibilities under the program and promptly notifying the

authorizing entity of any circumstance that may affect the consumer's

or, if applicable, the designated representative's ability to fulfill

such responsibilities;

(H) complying with regulations established by the commissioner

specifying the responsibilities of fiscal intermediaries providing

services under this title;

(I) entering into a department approved memorandum of understanding

with the consumer that describes the parties' responsibilities under

this program; and

(J) other related responsibilities which may include, as determined by

the commissioner, assisting consumers to perform the consumers'

responsibilities under this section and department regulations in a

manner that does not infringe upon the consumer's responsibilities and

self-direction.

(ii-a) The commissioner shall require any managed care plans, managed

long-term care plans, local social service districts, and other

appropriate long-term service programs offering consumer directed

personal assistance services to contract with the statewide fiscal

intermediary set forth in subparagraph (i) of this paragraph to provide

all fiscal intermediary services to consumers.

(ii-b) The statewide fiscal intermediary shall subcontract to

facilitate the delivery of fiscal intermediary services to an entity

that is a service center for independent living under section one

thousand one hundred twenty-one of the education law that has been

providing fiscal intermediary services since January first, two thousand

twenty-four or earlier. The statewide fiscal intermediary shall further

subcontract to facilitate the delivery of fiscal intermediary services

with at least one entity per rate setting region that has a proven

record of delivering services to individuals with disabilities and the

senior population, and has been providing fiscal intermediary services

since January first, two thousand twelve; provided that such

subcontractor shall be required to provide any delegated fiscal

intermediary services with cultural and linguistic competency specific

to the population of consumers and those of the available workforce, and

shall comply with the requirements for registration as a fiscal

intermediary set forth in subdivision four-a-one of this section. For

purposes of this section, "delegated fiscal intermediary services" are

defined as fiscal intermediary services as set forth in subparagraph

(ii) of paragraph (a) of this subdivision that the statewide fiscal

intermediary includes in a subcontract and which shall include services

designed to meet the needs of consumers of the program, which may

include assisting consumers with navigation of the program by providing

individual consumer assistance and support as needed, consumer peer

support, and education and training to consumers on their duties under

the program.

(ii-c) The statewide fiscal intermediary shall be responsible for

payment to subcontractors for delegated fiscal intermediary services.

The payment shall not require a certification by the commissioner if

payments are reasonably related to the costs of efficient delivery of

such services.

(iii) Fiscal intermediaries are not responsible for, and fiscal

intermediary services shall not include, fulfillment of the

responsibilities of the consumer or, if applicable, the consumer's

designated representative as established by the commissioner. A fiscal

intermediary's responsibilities shall not include, and a fiscal

intermediary shall not engage in: managing the plan of care including

recruiting and hiring a sufficient number of individuals who meet the

definition of consumer directed personal assistant, as such term is

defined by the commissioner, to provide authorized services that are

included on the consumer's plan of care; training, supervising and

scheduling each consumer directed personal assistant; terminating the

consumer directed personal assistant's employment; or assuring that each

consumer directed personal assistant competently and safely performs the

personal care services, home health aide services and skilled nursing

tasks that are included on the consumer's plan of care. A fiscal

intermediary shall exercise reasonable care in properly carrying out its

responsibilities under the program.

(b) Notwithstanding section one hundred sixty-three of the state

finance law, section one hundred twelve of the state finance law, or

section one hundred forty-two of the economic development law the

commissioner shall enter into a contract under this subdivision with an

eligible contractor that submits an offer for a contract, provided,

however, that:

(i) the department shall post on its website:

(A) a description of the proposed statewide fiscal intermediary

services to be provided pursuant to a contract in accordance with this

subdivision;

(B) the criteria for selection of the statewide fiscal intermediary,

which shall include at a minimum that the eligible contractor is capable

of performing statewide fiscal intermediary services with demonstrated

cultural and language competencies specific to the population of

consumers and those of the available workforce, has experience serving

individuals with disabilities, and as of April first, two thousand

twenty-four is providing services as a fiscal intermediary on a

statewide basis with at least one other state;

(C) the manner by which prospective contractors may seek such

selection, which may include submission by electronic means;

(ii) all offers that are received from prospective contractors in a

timely fashion and that meet the criteria set forth in clause (B) of

subparagraph (i) of this paragraph shall be reviewed by the

commissioner; and

(iii) the commissioner shall award such contract to the contractor

that meets the criteria for selection and offers the best value for

providing the services required pursuant to this section and the needs

of consumers.

(c) (i) The commissioner shall require a fiscal intermediary to report

annually on the direct care and administrative costs of personal

assistance services as accounted for by the fiscal intermediary. The

department shall specify the format of such reports, determine the type

and amount of information to be submitted, and require the submission of

supporting documentation, provided, however, that the department shall

provide no less than ninety calendar days' notice before such reports

are due.

(ii) If the department determines that the cost report submitted by a

provider is inaccurate or incomplete, the department shall notify the

provider in writing and advise the provider of the correction or

additional information that the provider must submit. The provider must

submit the corrected or additional information within thirty calendar

days from the date the provider receives the notice.

(iii) The department shall grant a provider an additional thirty

calendar days to submit the original, corrected or additional cost

report when the provider, prior to the date the report is due, submits a

written request to the department for an extension and establishes to

the department's satisfaction that the provider cannot submit the report

by the date due for reasons beyond the provider's control.

(iv) All reports shall be certified by the owner, administrator, chief

executive officer, or public official responsible for the operation of

the provider. The cost report form shall include a certification form,

which shall specify who must certify the report.

4-a-1. (a) Fiscal intermediary registration. Except for the statewide

fiscal intermediary and its subcontractors, as of April first, two

thousand twenty-five, no entity shall provide, directly or through

contract, fiscal intermediary services. All subcontractors of the

statewide fiscal intermediary, shall register with the department within

thirty days of being selected as a subcontractor.

(b) In selecting its subcontractors, the statewide fiscal intermediary

shall consider demonstrated compliance with all applicable federal and

state laws and regulations, including but not limited to, marketing and

labor practices, cost reporting, and electronic visit verification

requirements.

4-b. Actions involving the registration of a fiscal intermediary.

(a) A fiscal intermediary's registration may be revoked, suspended,

limited, or annulled by the commissioner upon thirty days' written

notice to the fiscal intermediary, if the commissioner finds that the

fiscal intermediary has failed to comply with the provisions of this

section or regulations promulgated hereunder.

(b) The commissioner may issue orders and take other actions as

necessary and appropriate to prohibit and prevent the provision of

fiscal intermediary services by an unregistered entity.

(c) All orders or determinations under this subdivision shall be

subject to review as provided in article seventy-eight of the civil

practice law and rules.

4-c. The commissioner shall convene and chair a stakeholder workgroup

pertaining to fiscal intermediary services and the needs of consumers.

The workgroup shall consist of, at a minimum, representatives of service

centers for independent living; statewide associations of fiscal

intermediaries; representatives of managed care entities under article

forty-four of the public health law and local social service districts;

consumers; and representatives of advocacy groups representing consumers

of services under this section. The workgroup shall be established no

later than May fifteenth, two thousand nineteen. The workgroup shall

identify and develop best practices pertaining to the delivery of fiscal

intermediary services; inform the criteria for use by the department for

the selection of entities under subdivision four-a of this section;

identify whether services differ for certain consumers and under what

circumstances; inform criteria in relation to the development of quality

reporting requirements; and work with the department to develop

transition plans for consumers that may need to transition to another

fiscal intermediary.

4-d. Fiscal intermediaries ceasing operation. (a) Where a fiscal

intermediary is ceasing operation or will no longer serve the consumer's

area, the fiscal intermediary shall:

(i) deliver written notice forty-five calendar days in advance to the

affected consumers, consumer representatives, personal assistants, the

department, and any local social services districts or managed care

plans with which the fiscal intermediary contracts. Within five business

days of receipt of the notice, the local social services district or

managed care plan shall acknowledge the notice and provide the affected

consumers with a list of other fiscal intermediaries operating in the

same county or managed care plan network as appropriate;

(ii) not take any action that would prevent a personal assistant from

moving to a new fiscal intermediary of the consumer's choice, nor

require the consumer or the personal assistant to switch to a personal

care or home health care program not under this section; and

(iii) upon request and consent, promptly transfer all records relating

to the individual's health and care authorizations, and personnel

documents to the fiscal intermediary or personal care or home health

care provider chosen by the consumer and assume all liability for

omissions or errors in such records.

(b) Where a consumer is electing to transfer his or her services to a

new fiscal intermediary or a personal care or home health care provider

by the consumer's independent choice, the fiscal intermediary being

discontinued shall comply with subparagraphs (ii) and (iii) of paragraph

(a) of this subdivision.

(c) Where a fiscal intermediary is suspending or ceasing operation

pursuant to an order under subdivision four-b of this section, or has

failed to submit an offer for a contract, or has been denied a contract

under this section, all the provisions of this subdivision shall apply

except subparagraph (i) of paragraph (a) of this subdivision, notice of

which to all parties shall be provided by the department as appropriate.

(e) The local social services district or managed care plan, as

appropriate, shall supervise the transition of services and transfer of

records and maintain provision of services by the personal assistant(s)

chosen by the individual.

(f) Any transfer under this subdivision shall not diminish any of an

individual's rights relating to continuity of care, utilization review

or fair hearing appeals and aid continuing.

5. Waivers, regulation and effectiveness.

(a) The commissioner may, subject to the approval of the director of

the budget, file for such federal waivers as may be needed for the

implementation of the program.

(b) Notwithstanding any other provision of law, the commissioner is

authorized to waive any provision of section three hundred sixty-seven-b

of this title related to payment and may promulgate regulations

necessary to carry out the objectives of the program including minimum

safety, and health and immunization criteria and training requirements

for personal assistants, and which describe the responsibilities of the

eligible individuals in arranging and paying for services and the

protections assured such individuals if they are unable or no longer

desire to continue in the program, the fiscal intermediary registration

process, standards, and time frames, and those regulations necessary to

ensure adequate access to services.

6. Notwithstanding any inconsistent provision of this section or any

other contrary provision of law, managed care programs established

pursuant to section three hundred sixty-four-j of this title and managed

long term care plans and other care coordination models established

pursuant to section four thousand four hundred three-f of the public

health law shall offer consumer directed personal assistance programs to

enrollees.

7. This section shall be effective if, to the extent that, and as long

as, federal financial participation is available for expenditures

incurred under this section.

8. Subject to the availability of federal financial participation, the

provisions of this section governing consumer directed personal

assistance services shall also apply to such services when offered under

the home and community-based attendant services and supports state plan

option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).

9. Notwithstanding any contrary provision of law and subject to the

availability of federal financial participation, for periods on and

after April first, two thousand fourteen, the commissioner is authorized

to make temporary periodic lump-sum Medicaid payments to fiscal

intermediaries principally engaged in providing consumer directed

personal assistance services to Medicaid patients, in accordance with

the following:

(a) eligible fiscal intermediaries shall include:

(i) providers undergoing closure or substantial reduction in the

volume of care;

(ii) providers impacted by the closure of other health care providers;

(iii) providers subject to mergers, acquisitions, consolidations or

restructuring;

(iv) providers impacted by the merger, acquisition, consolidation or

restructuring of other health care providers;

(v) providers seeking to ensure that access to care is maintained or

increased; or

(vi) on or after January first, two thousand fifteen, providers

impacted by changes to the Fair Labor Standards Act requiring overtime

pay for personal assistants working in excess of forty hours per week.

(b) providers seeking Medicaid payments under this subdivision shall

demonstrate through submission of a written proposal to the commissioner

that the additional resources provided by such Medicaid payments will

achieve one or more of the following:

(i) protect or enhance access to care;

(ii) protect or enhance quality of care;

(iii) improve the cost effectiveness of the delivery of health care

services; or

(iv) otherwise protect or enhance the health care delivery system, as

determined by the commissioner.

(c)(i) Such written proposal shall be submitted to the commissioner at

least sixty days prior to the requested commencement of such Medicaid

payments and shall include a proposed budget to achieve the goals of the

proposal. Any Medicaid payments issued pursuant to this subdivision

shall be made over a specified period of time, as determined by the

commissioner, of up to three years. At the end of the specified

time-frame such payments shall cease. The commissioner may establish, as

a condition of receiving such Medicaid payments, benchmarks and goals to

be achieved in conformity with the provider's written proposal as

approved by the commissioner and may also require that the provider

submit such periodic reports concerning the achievement of such

benchmarks and goals as the commissioner deems necessary. Failure to

achieve satisfactory progress, as determined by the commissioner, in

accomplishing such benchmarks and goals shall be a basis for ending the

provider's Medicaid payments prior to the end of the specified

timeframe.

(ii) The commissioner may require that applications submitted pursuant

to this subdivision be submitted in response to and in accordance with a

request for applications or a request for proposals issued by the

commissioner.