Home » 2015 Issues » December 23, 2015 » HLT-36-14-00012-A Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)
HLT-36-14-00012-A Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)
12/23/15 N.Y. St. Reg. HLT-36-14-00012-A
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 51
December 23, 2015
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
NOTICE OF ADOPTION
I.D No. HLT-36-14-00012-A
Filing No. 1028
Filing Date. Dec. 02, 2015
Effective Date. Dec. 23, 2015
Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 505.14 and 505.28 of Title 18 NYCRR.
Statutory authority:
Public Health Law, section 201(1)(v); and Social Services Law, sections 363-a(2), 365-a(2)(e) and 365-f
Subject:
Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP).
Purpose:
To establish definitions, criteria and requirements associated with the provision of continuous PC and continuous CDPA services.
Substance of final rule:
The proposed regulations conform the Department’s personal care services regulations at 18 NYCRR § 505.14 to State law [Social Services Law (“SSL”) § 365-a(2)(e)(iv)], which caps social services districts’ authorizations for nutritional and environmental support functions, commonly referred to as housekeeping or Level I functions, to no more than eight hours per week for those Medical Assistance (“Medicaid”) recipients who need only that level of care. The proposed regulations also revise the criteria for social services districts’ authorizations of continuous personal care services (i.e. “split-shift” services) and live-in 24-hour personal care services consistent with the preliminary injunction decision in Strouchler v. Shah, 891 F.Supp. 2d 504 (S.D.N.Y. 2012).
In subdivision 505.14(a), which contains definitions and provisions relating to the scope of personal care services, the definitions of “some assistance,” “total assistance,” and “continuous 24-hour personal care services” are repealed. Definitions of “continuous personal care services” and “live-in 24-hour personal care services” are added. Also added is a provision that personal care services shall not be authorized to the extent that the patient’s need for assistance can be met by voluntary assistance from informal caregivers, by formal services other than the Medicaid program, or by adaptive or specialized equipment or supplies that can be provided safely and cost-effectively.
With regard to nutritional and environmental support functions (“Level I” services), a provision is added limiting the authorization to no more than eight hours per week, consistent with SSL § 365-a(2)(e)(iv). The list of Level II personal care functions is amended by the addition of “turning and positioning.”
In paragraph 505.14(b)(3), which specifies factors that the nursing assessment must include, the nursing assessment must include an evaluation whether adaptive or specialized equipment or supplies can meet the patient’s need for assistance and whether such equipment or supplies can be provided safely and cost-effectively. The nursing assessment would no longer be required to include an evaluation of the degree of assistance required for each function or task, since the definitions of “some assistance” and “total assistance” are repealed.
In paragraph 505.14(b)(4), which specifies the circumstances under which the local professional director must conduct an independent medical review, such reviews would have to be conducted in cases involving live-in 24-hour personal care services as well as cases involving continuous personal care services. The nursing assessment in continuous personal care services and live-in 24-hour personal care services cases would have to document certain factors, such as whether the physician’s order had documented a medical condition that causes the patient to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, or feeding.
The social assessment in live-in 24-hour personal care services cases would have to evaluate whether the patient’s home has sleeping accommodations for a personal care aide. If not, the district must authorize continuous personal care services; however, should the patient’s circumstances change and sleeping accommodations for a personal care aide become available in the patient’s home, the district must promptly review the case. If a reduction of the patient’s continuous personal care services to live-in 24-hour personal care services is appropriate, the district must send the patient a timely and adequate notice of the proposed reduction.
In continuous personal care services and live-in 24-hour personal care services cases, the local professional director could consult with the patient’s treating physician and conduct an additional assessment in the home. The final determination regarding the amount of care to be authorized would have to be made with reasonable promptness, generally not to exceed seven business days after receipt of required documentation.
In subparagraph 505.14(b)(5)(v), the provisions governing social services districts’ notices to recipients for whom districts have determined to deny, reduce or discontinue personal care services are revised and reorganized.
The proposed regulations make conforming changes to the Department’s regulations governing the consumer directed personal assistance program (“CDPAP”), which are at 18 NYCRR § 505.28.
In subdivision 505.28(b), which contains definitions relating to the CDPAP, the definitions of “continuous 24-hour consumer directed personal assistance” “some assistance” and “total assistance” are repealed. The definition of “consumer directed personal assistance” is amended to delete references to “some or total” assistance. Definitions of “continuous consumer directed personal assistance” and “live-in 24-hour consumer directed personal assistance” are added.
The definition of “personal care services” is amended to provide that, for individuals whose needs are limited to nutritional and environmental support functions (i.e. housekeeping tasks), personal care services shall not exceed eight hours per week.
In paragraph 505.28(d)(2), which specifies factors that the social assessment must include, the social assessment in continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance cases must document that all alternative arrangements for meeting the individual’s medical needs have been explored and are infeasible. The social assessment for live-in 24-hour cases must evaluate whether the consumer’s home has sleeping accommodations for a consumer directed personal assistant. If not, the district must authorize continuous consumer directed personal assistance; however, if the consumer’s circumstances change and sleeping accommodations for a consumer directed personal assistant become available in the consumer’s home, the district must promptly review the case. If a reduction of the consumer’s continuous services to live-in services is appropriate, the district must send the consumer a timely and adequate notice of the proposed reduction.
In paragraph 505.28(d)(3), which specifies factors that the nursing assessment must include, the nursing assessment in continuous consumer directed personal assistance cases and live-in 24-hour consumer directed personal assistance cases would have to document certain factors, such as whether the physician’s order has documented a medical condition that causes the consumer to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks.
Paragraph 505.28(d)(5), which specifies requirements for the local professional director’s review, is repealed and a new paragraph 505.28(d)(5) is added. Cases involving continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance would have to be referred to the local professional director or designee for review and final determination of the amount of services to be authorized. The local professional director or designee would be required to consider information in the social and nursing assessments and may consult with the consumer’s treating physician and conduct an additional assessment in the home. The final determination of the amount of care to be authorized must be made with reasonable promptness, generally not to exceed seven business days after receipt of all information.
Subdivision 505.28(e), which pertains to the authorization process, would be amended to provide that consumer directed personal assistance shall not be authorized to the extent that a consumer’s need for assistance can be met by voluntary assistance from informal caregivers, by formal services other than the Medicaid program, or by adaptive or specialized equipment or supplies when such equipment or supplies can be provided safely and cost-effectively.
Paragraph 505.28(h)(5) would be amended to provide additional detail regarding the content of social services district notices when the district denies, reduces or discontinues consumer directed personal assistance.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 505.14(a)(2), (4), (b)(3), (4), 505.28(b)(4), (12), (d)(3) and (e)(1).
Revised rule making(s) were previously published in the State Register on
September 16, 2015.
Text of 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, (518) 473-7488, email: regsqna@health.ny.gov
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Assessment of Public Comment
The Department received comments from the following: counsel for the plaintiff class in Strouchler v. Shah (Cardozo Bet Tzedek Legal Services, JASA/Legal Services for the Elderly in Queens, and New York Legal Assistance Group) and the law firm of Hinman Straub, on behalf of a managed care plan.
1. Comment: Both commentators asked that the Department clarify the extent to which 18 NYCRR §§ 505.14, personal care services, and 505.28, consumer directed personal assistance program (“CDPAP”), apply to services provided by Medicaid managed care organizations and Medicaid managed long term care plans.
Response: The Department has not revised the proposed regulations in response to the comments. The revisions the commentators suggest would require that substantive revisions be made to the proposed regulations, necessitating the filing of yet another notice of revised rule making for an additional minimum public comment period of 30 days. This would delay the final adoption of regulations necessary to comply with the stipulation of settlement in Strouchler v. Shah. The Department is nonetheless considering how best to address these comments, whether by a future notice of proposed rule making or by other means.
2. Comment: Counsel for the Strouchler class commented that the proposed regulations must require that a live-in 24-hour personal care aide be able to obtain a total of eight hours of sleep with at least one five hour period of uninterrupted sleep.
Response: Counsel had suggested similar revisions in their comments on the proposed regulations published on September 10, 2014. In response to those earlier comments, the Department revised the proposed definitions of continuous personal care services and live-in 24-hour personal care services. As discussed in the Assessment of Public Comment published on September 16, 2015, these proposed revisions clarify that a live-in 24-hour aide’s “five hours daily of uninterrupted sleep” is within an eight hour period. This is consistent with State Department of Labor guidance, which requires that live-in aides have an eight hour sleep period and actually receive five hours of uninterrupted sleep. In view of the renewed comment on this point, however, the Department has revised the proposed regulations once again to clarify that this five hour period of uninterrupted sleep is during the aide’s eight hour period of sleep. Similar revisions were made to Section 505.28 governing the CDPAP.
3. Comment: Counsel for the Strouchler class commented that the purpose of the requirement to consider whether the Medicaid recipient could be “safely left alone without care for a period of one or more hours in a calendar day” should be clarified to avoid improper denials of services. They commented that such a provision, without some clarification of the legitimate regulatory purpose, could be used to deny care to individuals with dementia who have a documented need for live-in home care services.
Response: Counsel offered similar comments in response to the proposed regulations published on September 10, 2014. At that time, the Department declined to revise the proposed regulations in response to the comment. In its Assessment of Public Comment published on September 16, 2015, the Department noted that this provision, although relocated in the proposed regulations, was not new. The Department’s regulations had long provided that, when the individual providing personal care services is living in the home of the patient, the social services district must determine whether or not, based on the social and nursing assessments, the patient can be safely left alone without care for a period of one or more hours per day.
In considering the renewed public comments, however, the Department determined that this provision should be deleted. It is an anachronism, a remnant of a past practice, no longer followed, under which social services districts negotiated reimbursement rates for personal care services, including determining the number of hours of services for which a live-in aide would be paid. The Department of Labor, not social services districts, now determines the number of hours for which live-in aides must be paid. Accordingly, the revised regulations would repeal this provision as obsolete.
4. Comment: Counsel for the Strouchler class commented that the regulations must clarify that only voluntary assistance from informal caregivers may be considered and that informal caregivers cannot be compelled to assist with activities of daily living or similar tasks.
Response: The Department has not revised the proposed regulations in response to the comments. The proposed regulations address this concern, providing in no fewer than six provisions that the assistance of informal caregivers, such as family members and friends, must be voluntary. Specifically, the following provisions of the proposed personal care services regulations require that the assistance of informal caregivers be voluntary: Sections 505.14(a)(3)(iii)(a)(1), 505.14(a)(3)(iii)(b), and 505.14(b)(4)(i)(c)(1). Similarly, the following provisions of the proposed CDPAP regulations require the same: Sections 505.28(d)(2)(iv), 505.28(e)(1)(ii)(a), and 505.28(e)(1)(iii). No further regulatory recitations of this requirement are needed.
