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New York Consolidated Laws, Social Services Law - SOS § 365-f. Consumer directed personal assistance program

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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 be provided notice of the availability of the program, and no less frequently than annually thereafter, and shall have the opportunity to apply for participation in the program.  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;

(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 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 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.  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. Participating providers.  All agencies or individuals who meet the qualifications to provide home health, personal care or nursing services and who elect to provide such services to persons receiving medical assistance may participate in the program.  Any agency or individuals providing services under a patient managed home care program authorized under the former section thirty-six hundred twenty-two of the public health law or the former sections three hundred sixty-five-f of this chapter may continue to provide such services under this section.

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

(i) “Fiscal intermediary” means an entity that provides fiscal intermediary services and has a contract for providing such services with:

(A) a local department of social services;

(B) an organization licensed under article forty-four of the public health law;  or

(C) an accountable care organization certified under article twenty-nine-E of the public health law or an integrated delivery system composed primarily of health care providers recognized by the department as a performing provider system under the delivery system reform incentive payment program.

(ii) Fiscal intermediary services shall include the following services, performed on behalf of the consumer to facilitate his or her 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 sheets 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;  and

(I) entering into a department approved memorandum of understanding with the consumer that describes the parties' responsibilities under this program.

(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) No entity shall provide, directly or through contract, fiscal intermediary services without an authorization as a fiscal intermediary issued by the commissioner in accordance with this subdivision.

(c) An application for authorization as a fiscal intermediary shall be filed with the commissioner, together with such other forms and information as shall be prescribed by, or acceptable to the commissioner.  Such information shall include, but not be limited to:

(i) the name and employer identification number, of the entity, including any subsidiary corporations, if applicable, and any name under which the entity does business;

(ii) all addresses at which the organization operates;

(iii) the names, titles and contact information of all officers and directors in a not-for-profit company or business, or managers in a limited liability company, as well as the name and employment history of the individual ultimately accountable for operation of the fiscal intermediary;  and for a not-for-profit entity, the number of director positions set by the company's by-laws, and how many are currently filled;

(iv) a history of the organization, along with an overview of the organization and all services it offers, including any relationships with outside agencies that may influence in any way the ability of the organization to provide fiscal intermediary services consistent with the manner described in its application;

(v) all policies and procedures of the fiscal intermediary, including any contracts or other documents used in communications with consumers;

(vi) plans to solicit and consider input from the fiscal intermediary's consumers, staff, personal assistants and other interested parties which may be charged with roles including, but not limited to, quality assurance review, referral, program monitoring or development or establishing and responding to community needs;  such input may be in the form of a board of directors, committee, survey, or other mechanism, provided that the majority of input obtained as part of this process must be from individual consumers and consumer advocates of the fiscal intermediary;

(vii) the organization's plan to address the needs of consumers and their personal assistants in a timely manner, regardless of where they live, including, but not limited to, input from consumers, obtaining physicals and other health information from personal assistants, obtaining time records for payroll, and timely processing of payroll;  and

(viii) a written sworn statement by an officer of the entity disclosing any pending litigation, unsatisfied judgments or penalties, convictions for fraud or sanctions imposed by government authorities.

(d) The entity shall reasonably promptly notify the department of any change in the information submitted to the department for authorization under this subdivision.

(e) The commissioner shall not approve an application for authorization unless he or she is satisfied as to the character, competence and standing in the community of the applicant's incorporators, directors, sponsors, stockholders or operators and finds that the personnel, rules, consumer contracts or agreements, and fiscal intermediary services are fit and adequate, and that the fiscal intermediary services will be provided in the manner required by this subdivision and the rules and regulations hereunder, in a manner determined by the commissioner.

(f) The commissioner may contract with an entity with appropriate knowledge, expertise and experience possessing extensive knowledge of consumer directed personal assistance fiscal intermediary services and which has a history of providing similar services in relation to a self-directed program to develop and to assist the commissioner in evaluating applicants for authorizations or readiness reviews to be a fiscal intermediary.

(g) Neither public need, tax status nor profit-making status shall be a criterion for authorization under this subdivision.  Status as a licensed home care services agency or other health provider shall not positively or negatively affect an application for authorization under this subdivision.  An organization authorized pursuant to article forty-four of the public health law shall not be a fiscal intermediary.

(h) An authorization under this subdivision shall last for a period of five years.  Upon application for a renewal, the fiscal intermediary shall submit up to date information to the commissioner.

(i)(i) The commissioner may require a fiscal intermediary to report on the direct care and administrative costs of personal assistance services as accounted for by the fiscal intermediary.  The department may specify the frequency and 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-b. Actions involving the authorization of a fiscal intermediary.

(a) A fiscal intermediary's authorization may be revoked, suspended, limited or annulled upon thirty day's written notice to the fiscal intermediary, if the commissioner finds that the fiscal intermediary has failed to comply with the provisions of this subdivision or regulations promulgated hereunder.  Notwithstanding the foregoing, upon determining that the public health or safety would be imminently endangered by the continued authorization of the fiscal intermediary, the commissioner may revoke, suspend, limit or annul the fiscal intermediary's authorization immediately.

(b) 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. Advertising by fiscal intermediaries.  (a) A fiscal intermediary shall not publish any advertisement that is false or misleading.  For purposes of this subdivision, an advertisement is any material produced in any medium that can reasonably be interpreted as intended to market the fiscal intermediary's services to medical assistance recipients.

(b) Fiscal intermediaries shall submit all advertisements to the department prior to dissemination.  Fiscal intermediaries shall not disseminate any advertisement until it has been approved by the department.  The department shall render a decision on such submissions within thirty days.

(c) Upon a fiscal intermediary's receipt of notification by the commissioner that the fiscal intermediary has disseminated a false or misleading advertisement, or that the fiscal intermediary disseminated an advertisement without the department's approval, the fiscal intermediary shall have thirty days to cease disseminating or remove such advertisement.

(d) Upon the commissioner's determination that a fiscal intermediary has disseminated two advertisements that are either false or misleading or that were not approved by the department, such entity shall be prohibited from providing fiscal intermediary services and any authorization granted shall be immediately revoked, suspended, limited or annulled pursuant to subdivision four-b of this section.  The department shall maintain a list of such entities and shall make such list available to contracting entities listed in subparagraph (i) of paragraph (a) of subdivision four-a of this section.

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, 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.

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 timeframe 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.

Cite this article: - New York Consolidated Laws, Social Services Law - SOS § 365-f. Consumer directed personal assistance program - last updated January 01, 2021 |

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