HLT-43-15-00003-P Immediate Need for Personal Care Services (PCS) and Consumer Directed Personal Assistance (CDPA)

10/28/15 N.Y. St. Reg. HLT-43-15-00003-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 43

October 28, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-43-15-00003-P

Immediate Need for Personal Care Services (PCS) and Consumer Directed Personal Assistance (CDPA)

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 505.14 and 505.28 of Title 18 NYCRR.

Statutory authority:

Public Health Law, section 201(1)(v); Social Services Law, sections 363-a(2), 365-a(2)(e) and 365-f

Subject:

Immediate Need for Personal Care Services (PCS) and Consumer Directed Personal Assistance (CDPA).

Purpose:

To implement 2015 State law changes regarding Medicaid applicants and recipients with immediate needs for PCS or CDPA.

Substance of proposed rule (Full text is posted at the following State website:www.health.ny.gov):

The proposed regulations amend the Department’s personal care services regulations by adding paragraphs (7) and (8) to 18 NYCRR § 505.14(b). They also amend the Department’s consumer directed personal assistance program regulations by adding subdivisions (k) and (l) to 18 NYCRR § 505.28.

New paragraph 505.14(b)(7) sets forth expedited procedures for social services districts’ determinations of Medicaid eligibility for applicants with an immediate need for personal care services (“PCS”).

Clause 505.14(b)(7)(i)(a) defines the term “Medicaid applicant with an immediate need for personal care services.” The term includes two groups of individuals who seek Medicaid coverage: those who are not currently authorized for any type of Medicaid coverage; and those who are currently authorized for Medicaid coverage but only for community-based coverage not including coverage for long-term care services such as PCS. In addition, these individuals must present a physician’s order documenting the need for assistance with certain personal care services functions and attest to the social services district, on a required form, that they have no informal caregivers, are not receiving PCS from a home care services agency, have no adaptive or specialized equipment or supplies to meet their needs, and have no third party insurance or Medicare benefits available to pay for needed assistance.

Clause 505.14(b)(7)(i)(b) defines the term “complete Medicaid application.” This term means a signed Medicaid application and all documentation necessary for the district to determine Medicaid eligibility. However, an applicant who would otherwise be required to document his or her accumulated resources could attest to the current value of any real property and to the current dollar amount of any bank accounts. If inconsistencies exist between the information to which the applicant attests and any information that the Department or the district may subsequently obtain from other sources, the individual would be required to document such resources.

Subparagraph 505.14(b)(7)(ii) requires the social services district to take certain action as soon as possible but no later than three calendar days after receipt of the Medicaid application, physician’s order and attestation form. Within this period, the district must determine whether the applicant is a “Medicaid applicant with an immediate need for personal care services” and, if so, whether the applicant has submitted a “complete Medicaid application.” When the district determines that the individual is a Medicaid applicant with an immediate need for personal care services but has not submitted a complete Medicaid application, the district must also within this time period notify the applicant of the additional documentation the applicant must provide; the date by which the applicant must provide such documentation; and that the district will determine the applicant’s Medicaid eligibility within seven calendar days after receipt of the documentation.

Subparagraph 505.14(b)(7)(iii) requires the social services district to determine whether a Medicaid applicant with an immediate need for personal care services is eligible for Medicaid, including Medicaid coverage of community-based long term care services, and notify the applicant of such determination. The district must make this determination and notify the applicant as soon as possible but no later than seven calendar days after receipt of a complete Medicaid application.

Subparagraph 505.14(b)(7)(iv) provides that the social services district must comply with the expedited personal care services assessment procedures set forth in new 505.14(b)(8) for each Medicaid applicant with an immediate need for PCS who the district determines is eligible for Medicaid, including Medicaid coverage of community-based long-term care services.

The proposed regulations also add paragraph (8) to Section 505.14(b), which sets forth expedited personal care services assessment procedures for Medicaid recipients with an immediate need for personal care services. These procedures would apply to Medicaid recipients seeking personal care services who are exempt or excluded from enrollment in a managed long term care plan or managed care provider as well as Medicaid recipients who are not exempt or excluded from enrollment in such a plan or provider but who have not yet been enrolled.

Subparagraph 505.14(b)(8)(ii) requires social services districts to perform the following personal care services assessment activities for Medicaid recipients with immediate needs for personal care services:

• Obtain or complete a social assessment and nursing assessment;

• Refer the case to the local professional director, or designee, if it involves continuous personal care services or live-in 24 hour personal care services;

• Determine whether the recipient is eligible for personal care and, if so, the amount and duration of services to be authorized;

• Provide notice to the recipient of the district’s determination; and

• Authorize services to be provided to those recipients who are determined eligible for personal care services. With respect to those recipients who are neither exempt nor excluded from enrollment in a managed long term care plan or managed care entity, the district must authorize services to be provided until the recipient is enrolled in such a plan or provider.

Subparagraph 505.14(b)(8)(iii) sets forth a time period of twelve calendar days within which districts must perform the assessment activities set forth above. The commencement of the twelve day period depends on whether the individual was originally a Medicaid applicant with an immediate need for personal care services. If so, the twelve day period commences on the day that the district determined that the applicant was eligible for Medicaid, including Medicaid coverage of community-based long term care services. For other Medicaid recipients with an immediate need for personal care services, the twelve day period commences when the district has received the physician’s order for personal care services and the form that attests to the recipient having an immediate need for personal care services.

The proposed regulations make similar revisions to the Department’s regulations governing the consumer directed personal assistance program, which are at 18 NYCRR § 505.28. New subdivision 505.28(k) sets forth expedited procedures for social services districts’ determinations of Medicaid eligibility for applicants with an immediate need for consumer directed personal assistance. These expedited procedures are similar to those set forth in proposed new 505.14(b)(7) for Medicaid applicants with an immediate need for personal care services. In addition, new subdivision 505.28(l) sets forth expedited consumer directed assistance assessment procedures for Medicaid recipients with immediate needs for consumer directed personal assistance. These expedited assessment procedures are similar to those set forth at proposed new 505.14(b)(8) for Medicaid recipients with an immediate need for personal care services.

Text of proposed rule and any required statements and analyses may be obtained from:

Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

Statutory Authority:

Social Services Law (“SSL”) § 363-a(2) and Public Health Law § 201(1)(v) empower the Department to adopt regulations implementing the State’s Medical Assistance (“Medicaid”) program. Under SSL § 366-a(12), the Department must develop expedited procedures for social services districts’ determinations of Medicaid eligibility for applicants with immediate needs for personal care services (“PCS”) or consumer directed personal assistance (“CDPA”). Under SSL § 364-j(31), the Department must provide PCS and CDPA, as appropriate, to Medicaid recipients with immediate needs for such services pending approval by managed care providers under SSL § 364-j or managed long term care (“MLTC”) plans under Public Health Law § 4403-f. Under SSL § 365-a(2)(e)(iii), the Department must provide assistance, consistent with SSL § 364-j(31), to Medicaid PCS recipients who are transitioning to receive care from MLTC plans.

Legislative Objectives:

The Legislature’s objective in enacting the statutory authority was two-fold: to expedite Medicaid eligibility determinations for Medicaid applicants with immediate needs for PCS or CDPA, and, for those Medicaid applicants with immediate needs for either service who are determined eligible for Medicaid, to require the provision of PCS and CDPA, as appropriate, pending the individuals’ enrollment in a managed care provider or MLTC plan. The proposed regulations are consistent with the Legislature’s objectives.

Needs and Benefits:

The purpose of the proposed regulations is to implement the Legislature’s recent amendments to the SSL with regard to Medicaid applicants and recipients with immediate needs for PCS or CDPA.

The Legislature added new SSL § 366-a(12), as follows:

The commissioner shall develop expedited procedures for determining medical assistance eligibility for any medical assistance applicant with an immediate need for personal care or consumer directed personal assistance services. . . Such procedures shall require that a final eligibility determination be made within seven days of the date of a complete medical assistance application.

See Ch. 57, pt. B, § 36-c.

The Legislature also added SSL § 364-j(31)(a) as follows:

The commissioner shall require managed care providers. . .managed long term care plans. . . and other appropriate long-term service programs to adopt expedited procedures for approving personal care services for a medical assistance recipient who requires immediate personal care or consumer directed personal assistance services. . .and provide such care or services as appropriate, pending approval by such provider or program.

See Ch. 57, pt. B, § 36-b.

In addition, the Legislature amended SSL § 365-a(2)(e)(iii) as follows:

The commissioner shall provide assistance to persons receiving personal care services under this paragraph who are transitioning to receiving care from a managed long term care plan certified pursuant to section forty-four hundred three-f of the public health law, consistent with subdivision thirty-one of section three hundred sixty-four-j of this title.

See Ch. 57, pt. B, § 36-a.

The proposed regulations would reflect the Legislature’s mandate in SSL § 366-a(12) for expedited Medicaid eligibility determinations for Medicaid applicants who have immediate needs for PCS or CDPA. It would also reflect the Legislature’s mandate in SSL §§ 364-j(31)(a) and 365-a(2)(e)(iii) that PCA and CDPA be provided to Medicaid recipients in immediate need of such services prior to enrollment in a managed care entity.

Costs:

Costs to Regulated Parties:

Regulated parties are social services districts that determine whether Medicaid applicants are eligible for Medicaid and whether Medicaid recipients are eligible for PCS or CDPA. Social services districts may incur administrative costs to comply with the expedited assessment procedures set forth in the proposed regulations. Districts would not incur any additional expense for the cost of PCS or CDPA provided to Medicaid recipients in immediate need of such services.

Costs to State Government:

The Department estimates that the proposed regulations could increase the State share of Medicaid costs by approximately $328,000 annually.

This cost estimate assumes that social services districts would annually authorize PCS or CDPA on a fee-for-service basis for an additional 88 newly eligible Medicaid recipients who the districts determine to be in immediate need of such services. This figure derives from Medicaid fee-for-service data for State Fiscal Years 2012-13 and 2013-14, which indicate that approximately 175 new Medicaid recipients were authorized annually for PCS and CDPA. The average monthly per-person cost of such services was $1,886.00. The Department assumed that, under the proposed regulations, fifty percent of the approximately 175 newly eligible Medicaid recipients (i.e. 88 recipients) would be found to be in “immediate need” of PCS or CDPA. The estimated annual Medicaid State share cost of providing PCS and CDPA to these 88 newly eligible Medicaid recipients would be approximately $996,000.00.

The Department estimates that this potential annual Medicaid State share cost of $996,000.00 would be reduced to the extent that Medicaid recipients in nursing or other facilities would be found to be in “immediate need” of PCS or CDPA and could be discharged home more quickly and with less costly PCS or CDPA. Based on Department historical data, approximately 7,980 nursing facility or adult home residents received PCS or CDPA upon discharge. The average monthly per person cost of care in such facilities was $3,879.00 whereas the average monthly cost of PCS or CDPA was $537.00, an average monthly savings of $3,342.00. For every 400 persons (roughly five percent of 7,980) who may be discharged one month more quickly from institutional settings to receive PCS or CDPA at home, the estimated annual gross federal and State Medicaid cost savings could be $1.3 million (400 x $3,342). The estimated Medicaid State share savings would be half of this total, or $668,400.00. When subtracted from the annual estimated Medicaid State share costs of $996,000.00, this results in an estimated net increase in Medicaid State share costs of $328,000.00.

Costs to Local Government:

Social services districts may incur administrative costs to comply with the expedited assessment procedures set forth in the proposed regulations. Districts would not incur any additional expense for the cost of PCS or CDPA provided to Medicaid recipients in immediate need of such services. State law limits the amount that districts must pay for Medicaid services provided to district recipients.

Costs to the Department of Health:

There will be no additional costs to the Department.

Local Government Mandates:

The proposed regulations require that social services districts perform expedited Medicaid eligibility determinations for Medicaid applicants who the districts determine have an immediate need for PCS or CDPA. Districts would also have to perform expedited PCS or CDPA assessments for Medicaid recipients who the districts determine have an immediate need for either service, and authorize PCS or CDPA for Medicaid recipients who are eligible for such services.

Paperwork:

The proposed regulations do not impose any reporting requirements on social services districts.

Duplication:

The proposed regulations do not duplicate any existing federal, state or local regulations.

Alternatives:

There are no significant alternatives to the proposed regulations.

Federal Standards:

The proposed regulations do not exceed any minimum federal standards.

Compliance Schedule:

Social services districts should be able to comply with the regulations when they become effective.

Regulatory Flexibility Analysis

Effect of Rule:

The proposed regulations affect social services districts. There are 62 counties in New York State, but only 58 social services districts. The City of New York comprises five counties but is one social services district.

Compliance Requirements:

Pursuant to proposed new §§ 505.14(b)(7) and 505.28(k), social services districts would be required to perform expedited Medicaid eligibility determinations for Medicaid applicants who have an immediate need for personal care services (“PCS”) or consumer directed personal assistance (“CDPA”). Medicaid applicants with an immediate need for PCS or CDPA include those who are not currently authorized for any type of Medicaid coverage as well as those who are currently authorized for Medicaid but only for community-based Medicaid coverage without coverage for long term care services.

Within three calendar days after receipt of the Medicaid application, physician’s order and required form attesting to the Medicaid applicant’s “immediate need,” the district would be required to determine whether the Medicaid applicant is a Medicaid applicant with an immediate need for PCS or CDPA and, if so, whether the applicant has submitted a complete Medicaid application. If the applicant has not submitted a complete Medicaid application, the district must notify the applicant, within this three day period, of the additional documentation that the applicant must submit, the date by which the applicant must provide such documentation, and that the district will determine the applicant’s Medicaid eligibility within seven calendar days after receipt of such documentation. No later than seven calendar days after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for PCS or CDPA, the district must determine whether the applicant is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and notify the applicant of that determination.

Pursuant to proposed new §§ 505.14(b)(8) and 505.28(l), social services districts would be required to perform expedited PCS or CDPA assessments of Medicaid recipients with immediate needs for PCS or CDPA. Medicaid recipients with immediate needs for PCS or CDPA include Medicaid applicants with immediate needs for PCS or CDPA who the districts have determined, pursuant to proposed new §§ 505.14(b)(7) and 505.28(k), to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, as well as other Medicaid recipients who have been determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services. Medicaid recipients with immediate needs for PCS or CDPA may be exempt or excluded from enrollment in a managed long term care plan or a managed care provider or not so exempt or excluded but not yet enrolled in any such plan or provider.

Within twelve calendar days after determining, pursuant to proposed new §§ 505.14(b)(7) or 505.28(k), that a Medicaid applicant with an immediate need for PCS or CDPA is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, the social services district would be required to perform an expedited PCS or CDPA assessment to determine whether the recipient is eligible for PCS or CDPA and, if so, the level and amount of services to be authorized. Within this twelve day period, the district would also be required to notify the recipient of the district’s determination and, for recipients found eligible for PCS or CDPA, authorize the services to be provided. If the recipient is subject to enrollment in a managed long term care plan or managed care provider, the district would be required to authorize the services and arrange for their provision until the recipient is enrolled in such managed long term care plan or provider.

Professional Services:

Social services would need to have contracts with sufficient number of Medicaid-enrolled providers to furnish authorized PCS to Medicaid recipients with immediate needs for such services. The proposed regulations would not otherwise require social services to obtain new or additional professional services.

Compliance Costs:

The proposed regulations would not impose capital costs on social services districts. Social services districts may incur administrative costs to comply with the proposed regulations. These administrative costs would be associated with districts’ performance of expedited Medicaid eligibility determinations of Medicaid applicants with immediate needs for PCS or CDPA as well expedited PCS or CDPA assessments of Medicaid recipients with immediate needs for such services.

Economic and Technological Feasibility:

There are no additional economic costs or technology requirements associated with the proposed regulations.

Minimizing Adverse Impact:

The proposed regulations should not have an adverse economic impact on social services districts. Each social services district’s share of the cost of total Medicaid expenditures for PCS and CDPA is limited to the district’s Medicaid “cap” amount established pursuant to State law. The proposed regulations would not require social services districts to incur any additional Medicaid expenditures for PCS or CDPA in excess of their Medicaid cap amounts.

Small Business and Local Government Participation:

The Department shared the proposed regulations with social services districts prior to publication.

Cure Period:

Chapter 524 of the Laws of 2011 requires agencies to include a “cure period” or other opportunity for ameliorative action to prevent the imposition of penalties on the party or parties subject to enforcement when developing a regulation or explain in the Regulatory Flexibility Analysis why one was not included. This regulation creates no new penalty or sanction. Hence, a cure period is not necessary.

Rural Area Flexibility Analysis

Types and Estimated Numbers of Rural Areas:

Rural areas are defined as counties with populations less than 200,000 and, for counties with populations greater than 200,000, include towns with population densities of 150 or fewer persons per square mile.

The following 43 counties have populations of less than 200,000:

Allegany	Hamilton	Schenectady
Cattaraugus	Herkimer	Schoharie
Cayuga	Jefferson	Schuyler
Chautauqua	Lewis	Seneca
Chemung	Livingston	Steuben
Chenango	Madison	Sullivan
Clinton	Montgomery	Tioga
Columbia	Ontario	Tompkins
Cortland	Orleans	Ulster
Delaware	Oswego	Warren
Essex	Otsego	Washington
Franklin	Putnam	Wayne
Fulton	Rensselaer	Wyoming
Genesee	St. Lawrence	Yates
Greene

The following nine counties have certain townships with population densities of 150 or fewer persons per square mile:

Albany	Erie	Oneida
Broome	Monroe	Onondaga
Dutchess	Niagara	Orange

Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:

Pursuant to proposed new §§ 505.14(b)(7) and 505.28(k), rural social services districts would be required to perform expedited Medicaid eligibility determinations for Medicaid applicants who have an immediate need for personal care services (“PCS”) or consumer directed personal assistance (“CDPA”). Medicaid applicants with an immediate need for PCS or CDPA include those who are not currently authorized for any type of Medicaid coverage as well as those who are currently authorized for Medicaid but only for community-based Medicaid coverage without coverage for long term care services.

Within three calendar days after receipt of the Medicaid application, physician’s order and required form attesting to the Medicaid applicant’s immediate need for services, the district would be required to determine whether the Medicaid applicant is a Medicaid applicant with an immediate need for PCS or CDPA and, if so, whether the applicant has submitted a complete Medicaid application. If the applicant has not submitted a complete Medicaid application, the district must notify the applicant, within this three day period, of the additional documentation that the applicant must submit, the date by which the applicant must provide such documentation, and that the district will determine the applicant’s Medicaid eligibility within seven calendar days after receipt of such documentation. No later than seven calendar days after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for PCS or CDPA, the district must determine whether the applicant is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and notify the applicant of that determination.

Pursuant to proposed new §§ 505.14(b)(8) and 505.28(l), rural social services districts would be required to perform expedited PCS or CDPA assessments of Medicaid recipients with immediate needs for PCS or CDPA. Medicaid recipients with immediate needs for PCS or CDPA include Medicaid applicants with immediate needs for PCS or CDPA who the districts have determined, pursuant to proposed new §§ 505.14(b)(7) and 505.28(k), to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, as well as other Medicaid recipients who have been determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services. Medicaid recipients with immediate needs for PCS or CDPA may be exempt or excluded from enrollment in a managed long term care plan or a managed care provider or not so exempt or excluded but not yet enrolled in any such plan or provider.

Within twelve calendar days after determining, pursuant to proposed new §§ 505.14(b)(7) or 505.28(k), that a Medicaid applicant with an immediate need for PCS or CDPA is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, the social services district would be required to perform an expedited PCS or CDPA assessment to determine whether the recipient is eligible for PCS or CDPA and, if so, the level and amount of services to be authorized. Within this twelve day period, the district would also be required to notify the recipient of the district’s determination and, for recipients found eligible for PCS or CDPA, authorize the services to be provided. If the recipient is subject to enrollment in a managed long term care plan or managed care provider, the district would be required to authorize the services until the recipient is enrolled in such plan or provider.

Costs:

Rural social services districts would not incur initial capital costs to comply with the proposed regulations. Districts may incur administrative costs to comply with the proposed regulations. These administrative costs would be associated with districts’ performance of expedited Medicaid eligibility determinations of Medicaid applicants with immediate needs for PCS or CDPA as well expedited PCS or CDPA assessments of Medicaid recipients with immediate needs for such services.

Minimizing Adverse Impact:

The proposed regulations should not have an adverse economic impact on rural social services districts. Each social services district’s share of the cost of total Medicaid expenditures for PCS and CDPA is limited to the district’s Medicaid “cap” amount established pursuant to State law. The proposed regulations would not require rural social services districts to incur any additional Medicaid expenditures for PCS or CDPA in excess of their Medicaid cap amounts.

Rural Area Participation:

The Department shared the proposed regulations with rural social services districts prior to publication.

Job Impact Statement

No Job Impact Statement is required pursuant to section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature of the proposed regulations, that they would not have a substantial adverse impact on jobs and employment opportunities.