HLT-28-14-00008-RP Immediate Needs for Personal Care Services

2/25/15 N.Y. St. Reg. HLT-28-14-00008-RP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 8

February 25, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-28-14-00008-RP

Immediate Needs for Personal Care Services

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

Proposed Action:

Amendment of sections 360-3.7 and 505.14 of Title 18 NYCRR.

Statutory authority:

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

Subject:

Immediate Needs for Personal Care Services.

Purpose:

To provide for meeting the immediate needs of Medicaid applicants and recipients for personal care services.

Text of revised rule:

Pursuant to the authority vested in the Commissioner of Health by Social Services Law Sections 363-a(2) and 365-a(2)(e) and Public Health Law Section 201(1)(v), a new subdivision (f) is added to Section 360-3.7, subparagraph (b)(5)(iv) of Section 505.14 is repealed, and a new subparagraph (b)(5)(iv) of Section 505.14 is added to Title 18 (Social Services) of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), to read as follows, effective upon publication of a Notice of Adoption in the State Register:

Subdivision (f) is added to Section 360-3.7 to read as follows:

(f) Presumptive eligibility for immediate temporary personal care services. An individual applying for Medical Assistance (“Medicaid”) will be presumed eligible for immediate temporary personal care services as provided in this subdivision.

(1) For purposes of this subdivision, “immediate temporary personal care services” means the number of hours of personal care services that the Medicaid applicant’s physician has recommended in the physician’s order required by subparagraph (2)(ii) of this subdivision.

(2) A Medicaid applicant who seeks immediate temporary personal care services must submit the following to the social services district:

(i) A Medicaid application and the DOH-4495A (“Access NY Supplement A”) or any successor to such supplement; and

(ii) A physician’s order for personal care services that:

(a) meets the requirements of subparagraph (b)(3)(i) of Section 505.14 of this Title, except that the physician’s order must recommend the number of hours of personal care services to be authorized as immediate temporary personal care services;

(b) documents whether the Medicaid applicant needs assistance in the home with toileting, transferring from bed to chair or wheelchair, turning or positioning in bed, walking, or feeding; and

(c) documents whether the Medicaid applicant has a stable medical condition, as defined in subdivision (a) of Section 505.14 of this Title, and can be cared for safely at home.

(3) A Medicaid applicant is presumptively eligible for immediate temporary personal care services when:

(i) The social services district determines, based only on the Medicaid application and the DOH-4495A (“Access NY Supplement A”), that the Medicaid applicant appears to be financially and otherwise eligible for Medicaid;

(ii) The social services district determines that the physician’s order documents that the Medicaid applicant needs assistance in the home with toileting, transferring from bed to chair or wheelchair, turning or positioning in bed, walking, or feeding and that the Medicaid applicant has a stable medical condition and can be cared for safely at home;

(iii) The physician’s order recommends the number of hours of personal care services to be authorized as immediate temporary personal care services; and

(iv) The Medicaid applicant is in receipt of Protective Services for Adults (“PSA”) or has been referred to PSA and the social services district’s PSA staff have determined that a PSA investigation and assessment are necessary.

(4) As expeditiously as possible, but no later than five business days after receipt of the Medicaid application, the DOH-4495A (“Access NY Supplement A”), and the physician’s order, the social services district must determine whether the Medicaid applicant is presumptively eligible for immediate temporary personal care services and notify the Medicaid applicant of the district’s determination.

(5) The social services district must arrange for the provision of immediate temporary personal care services as expeditiously as possible to those Medicaid applicants who the district has determined to be presumptively eligible for such services.

(6) A Medicaid applicant who the social services district has determined to be presumptively eligible for immediate temporary personal care services is eligible to receive such services only for the duration of the Medicaid applicant’s presumptive eligibility period.

(i) A Medicaid applicant’s presumptive eligibility period begins when the social services district determines that the Medicaid applicant is presumptively eligible for immediate temporary personal care services and notifies the applicant of that determination.

(ii) A Medicaid applicant’s presumptive eligibility period ends:

(a) With respect to a presumptively eligible Medicaid applicant who the social services district subsequently determines to be financially or otherwise ineligible for Medicaid, when the social services district notifies the applicant of that determination; or

(b) With respect to a presumptively eligible Medicaid applicant who the social services district subsequently determines to be financially and otherwise eligible for Medicaid, when the social services district determines, pursuant to the personal care services assessment process required by paragraph (b)(2) of Section 505.14 of this Title, whether the individual is eligible for personal care services and, if so, the level and amount of personal care services to be authorized and notifies the individual of that determination. For purposes of the personal care services assessment determination, the social services district may use the physician’s order required by subparagraph (2)(ii) of this subdivision, but shall disregard the number of hours of personal care services that the physician recommended.

(7) (i) A Medicaid applicant who is determined to be presumptively eligible for immediate temporary personal care service and who is subsequently determined to be financially or otherwise ineligible for Medicaid may request a fair hearing to appeal the social services district’s determination of Medicaid ineligibility; however, the individual’s presumptive eligibility period is not extended by the fair hearing request and the individual is not entitled, after the end of the individual’s presumptive eligibility period, to aid-continuing of immediate temporary personal care services.

(ii) A Medicaid applicant who is determined to be presumptively eligible for immediate temporary personal care services and who is subsequently determined to be financially and otherwise eligible for Medicaid and for whom the district has performed a personal care services assessment pursuant to paragraph (b)(2) of Section 505.14 of this Title, may request a fair hearing to appeal the social services district’s determination whether the individual is eligible for personal care services and, if so, the level and amount of services to be authorized; however, the individual’s presumptive eligibility period is not extended by the fair hearing request and the individual is not entitled, after the end of the individual’s presumptive eligibility period, to aid-continuing of immediate temporary personal care services.

(8) If a Medicaid applicant is determined to be presumptively eligible for immediate temporary personal care services and is subsequently determined to be financially or otherwise ineligible for Medicaid, any sums expended for such services during the Medicaid applicant’s presumptive eligibility period may be recovered from the individual. Any sums expended for such services that are unable to be recovered from the individual are a charge upon the social services district for which State reimbursement is not available.

Subparagraph (b)(5)(iv) of Section 505.14 is repealed and a new subparagraph (b)(5)(iv) is added to read as follows:

(iv) A Medicaid recipient will be presumed eligible for immediate temporary personal care services as provided in this subparagraph.

(a) For purposes of this subparagraph, “immediate temporary personal care services” means the number of hours of personal care services that the recipient’s physician has recommended in the physician’s order required by clause (b) of this subparagraph.

(b) A Medicaid recipient who seeks immediate temporary personal care services must submit to the social services district a physician’s order for personal care services that:

(1) meets the requirements of subparagraph (b)(3)(i) of this Section except that the physician’s order must recommend the number of hours of personal care services to be authorized as immediate temporary personal care services;

(2) documents whether the recipient needs assistance in the home with toileting, transferring from bed to chair or wheelchair, turning or positioning in bed, walking, or feeding; and

(3) documents whether the recipient has a stable medical condition and can be cared for safely at home.

(c) A Medicaid recipient is presumptively eligible for immediate temporary personal care services when:

(1) The social services district determines that the physician’s order documents that the recipient needs assistance in the home with toileting, transferring from bed to chair or wheelchair, turning or positioning in bed, walking, or feeding, and that the recipient has a stable medical condition and can be cared for safely at home;

(2) The physician’s order recommends the number of hours of personal care services to be authorized as immediate temporary personal care services; and

(3) The recipient is in receipt of Protective Services for Adults (“PSA”) or has been referred to PSA and the social services district’s PSA staff have determined that a PSA investigation and assessment are necessary.

(d) As expeditiously as possible, but no later than three business days after receipt of the physician’s order referenced in clause (b) of this subparagraph, the social services district must determine whether the Medicaid recipient is presumptively eligible for immediate temporary personal care services and notify the recipient of the district’s determination.

(e) The social services district must arrange for the provision of immediate temporary personal care services as expeditiously as possible to those Medicaid recipients who the district has determined to be presumptively eligible for such services.

(f) As expeditiously as possible, but generally no later than thirty days after determining that a Medicaid recipient is presumptively eligible for immediate temporary personal care services, the social services district must determine, pursuant to the personal care services assessment process required by paragraph (2) of this subdivision, whether the presumptively eligible recipient is eligible for personal care services and, if so, the level and amount of services to be authorized, and notify the recipient of that determination. For purposes of the personal care services assessment determination, the district may use the physician’s order required by clause (b) of this subparagraph but shall disregard the number of hours of personal care services that the physician recommended.

(g) A Medicaid recipient who the social services district has determined to be presumptively eligible for immediate temporary personal care services is eligible to receive such services only for the duration of the recipient’s presumptive eligibility period.

(1) A Medicaid recipient’s presumptive eligibility period begins when the social services district determines that the recipient is presumptively eligible for immediate temporary personal care services and notifies the recipient of that determination.

(2) A Medicaid recipient’s presumptive eligibility period ends when the social services district determines, pursuant to the personal care services assessment process required by paragraph (2) of this subdivision, whether the recipient is eligible for personal care services and, if so, the level and amount of personal care services to be authorized, and notifies the recipient of that determination.

(h) A Medicaid recipient who the social services district has determined to be presumptively eligible for immediate temporary personal care services may request a fair hearing to appeal the social services district’s determination whether the recipient is eligible for personal care services and, if so, the level and amount of services to be authorized; however, the recipient’s presumptive eligibility period is not extended by the fair hearing request, and the recipient is not entitled, after the end of the recipient’s presumptive eligibility period, to aid-continuing of immediate temporary personal care services.

Revised rule compared with proposed rule:

Substantial revisions were made in sections 360-3.7(f) and 505.14(b)(5)iv.

Text of revised 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:

30 days after publication of this notice.

Revised 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 § 365-a(2)(e), the Medicaid program includes personal care services.

Legislative Objectives:

In 1940, the Legislature adopted SSL § 133, which provided for “temporary pre-investigation grants” for persons who appear in “immediate need.” These “temporary pre-investigation grants” were to be provided to persons in “immediate need” until social services districts complete the investigation into their eligibility for assistance. It has been the Department’s position that this statute, which predates the existence of the Medicaid program, does not apply to benefits under the Medicaid program or even to medical care generally, but rather to cash public assistance grants to indigent individuals.

In Konstantinov v. Daines, Justice Joan Madden, State Supreme Court, New York County, held that SSL § 133 applies to personal care services and that “applicants for Medicaid, and Medicaid recipients are entitled to request immediate, temporary personal care attendant services” pending the completion of an investigation into their eligibility. By order dated July 20, 2010 (“July 2010 Order”), Justice Madden directed the Department:

to draft and implement regulations that will outline the steps a Medicaid applicant must take to request immediate temporary personal care services and which will provide for performance of an expedited assessments [sic], including a physicians [sic], social assessment and/or nursing assessment and thereafter, will provide for expedited review of the application for such services. . .

In 2012, the Appellate Division, First Department, affirmed Justice Madden’s July 2010 Order.

In response to the Konstantinov decision, the Department proposed and the Legislature adopted SSL § 364-(i)(7), effective April 1, 2013, to clarify that, notwithstanding the expansive judicial interpretations of SSL § 133, the only circumstances in which the Medicaid program would reimburse for care and services individuals obtain before the date they are determined eligible for Medicaid are when: (a) the care or services are received during the three months preceding the month of Medicaid application, and the individual is determined to have been eligible for Medicaid in the month the services were received; or (b) as otherwise provided in SSL § 364-i, which sets forth the groups, such as pregnant women and children, to whom the Legislature has granted presumptive eligibility for Medicaid, or in the Department’s regulations.

In April 2013, the Department moved to vacate Justice Madden’s July 2010 Order based on new SSL § 364-i(7).

By decision and order dated March 12, 2014 (“March 2014 Order”), Justice Madden denied the Department’s motion to vacate her July 2010 Order. In her view, SSL § 364-i(7) merely apportions responsibility for the cost of “immediate temporary personal care services” provided to Medicaid applicants who are ultimately determined ineligible for Medicaid.

Specifically, Justice Madden rejected the Department’s explanation of the legislative intent behind SSL § 364-(i)(7), and instead interpreted the new language to mean only that:

to the extent that a person who received temporary personal care services is later found to be ineligible for medical assistance during the time period the local social service [sic] district provided or paid for the temporary assistance, no reimbursement will be paid from the state Medical Assistance program. In other words, the local social services district is obligated to pay for such temporary services, whether or not the local social services district receives reimbursement from the state. Konstantinov v. Daines, 2014 N.Y. Misc. LEXIS 1137; 2014 NY Slip Op 30657(U), emphasis added.

The Office of the New York State Attorney General has appealed Justice Madden’s March 2014 Order, but that appeal does not stay her July 2010 Order. It is anticipated that oral argument will occur in March 2015.

The proposed regulations set forth procedures by which Medicaid applicants and recipients may obtain “immediate temporary personal care services,” in order to comply with Justice Madden’s decision regarding the Court’s interpretation of SSL § § 133 and 364-i(7).

The proposed regulations also provide that State reimbursement is not available to social services districts for “immediate temporary personal care services” provided to presumptively eligible Medicaid applicants in the event that such applicants are ultimately determined to be financially or otherwise ineligible for Medicaid. Instead, the social services districts must bear the costs of these “immediate temporary personal care services” unless the districts are successful in recouping the costs from the Medicaid ineligible individuals themselves. The proposed regulations are thus consistent with the court’s holding that SSL § 364-i(7) absolves the State from any financial liability for the cost of “immediate temporary personal care services” provided to Medicaid ineligible individuals.

Needs and Benefits:

The proposed regulations are necessary to comply with Justice Madden’s July 2010 and March 2014 Orders, which directed the Department to draft and implement regulations setting forth the steps that Medicaid applicants and Medicaid recipients may take to request “immediate temporary personal care services.”

The proposed regulations would:

• Amend 18 NYCRR § 360-3.7 by adding new subdivision (f), entitled “[p]resumptive eligibility for immediate temporary personal care services,” which would apply to Medicaid applicants seeking “immediate temporary personal care services”;

• Provide that social services districts must pay the cost of any “immediate temporary personal care services” provided to presumptively eligible individuals who are subsequently found ineligible for Medicaid;

• Repeal 18 NYCRR § 505.14(b)(5)(iv), which has long provided for an expedited assessment process for Medicaid recipients (i.e. persons who have been found financially and otherwise eligible for Medicaid) who have an immediate need for personal care services; and

• Add a new Section 505.14(b)(5)(iv) to provide for a presumptive eligibility process for Medicaid recipients that generally mirrors the presumptive eligibility process for Medicaid applicants who seek “immediate temporary personal care services.”

Costs:

Costs to State Government:

The proposed regulations do not impose costs on State government.

Costs to Local Government:

Justice Madden’s March 2014 Order imposes costs upon social services districts. The proposed regulations are consistent with that Order. The Department estimates that the annual costs to districts could be nearly $9 million and possibly as much as $18 million.

Under the Medicaid “cap” statute, social services districts are responsible for paying their local shares of Medicaid expenditures; however, the amount of each district’s local share is fixed or “capped” to a sum certain for each State fiscal year. A district’s Medicaid “cap” amount is the maximum amount that the district can be compelled to pay for services provided to its Medicaid recipients. The State, not social services districts, is normally responsible for Medicaid costs that exceed social services districts’ cap amounts.

However, the March 2014 Order, by directing that it is social services districts, and not the State, that are responsible for the cost of any “immediate temporary personal care services” provided to presumptively eligible Medicaid applicants who are subsequently determined to be ineligible for Medicaid, has effectively interpreted SSL § 364-i(7) as creating an exception to the Medicaid “cap” statute. Therefore, the social services districts are responsible to pay for the costs of such “immediate temporary personal care services” in addition to their usual Medicaid “cap” contribution.

The proposed regulations are consistent with Justice Madden’s March 2014 Order. They provide that the cost of “immediate temporary personal care services” that are authorized for presumptively eligible individuals who are subsequently determined to be ineligible for Medicaid is a charge upon the social services district for which State reimbursement is not available.

The revisions to the proposed regulations necessitate a revised fiscal estimate. The Department now estimates that the potential annual costs to social services districts could be nearly $9 million and possibly as much as $18 million.

This fiscal estimate assumes that “immediate temporary personal care services” in the form of continuous personal care services (“split-shift” services) would be authorized for 45 days for 456 presumptively eligible individuals subsequently determined to be ineligible for Medicaid.

Based on 2013 data available to the Department, approximately 30,000 individuals were receiving fee-for-service personal care services in 2013 and that, of this total, approximately 11.7 percent (or 3,510 individuals), first applied for personal care services in 2013. Data for 2013 also indicate that, on a Statewide basis, approximately 231,827 Medicaid applications for Case Type 20 Medicaid were denied. This denial rate represents approximately 26 percent of the total Medicaid applications filed in 2013 for Case Type 20 coverage. Were one to assume that each of the approximately 3,510 individuals who seeks personal care services is also an applicant for Medicaid itself, this would mean that approximately 913 individuals (or 26% of 3,510 Medicaid applicants) would subsequently be determined to be ineligible for Medicaid.

Of these 913 Medicaid ineligible individuals, it is uncertain how many would be eligible for Protective Services for Adults (“PSA”) or how many would be referred to PSA and determined to need a PSA investigation and assessment. For purposes of this fiscal analysis, however, the assumption is that approximately 50 percent of these 913 Medicaid ineligible individuals, or 456 individuals, would be PSA eligible or be referred for a PSA investigation and assessment. This assumption is based on data from the New York State Office of Children and Family Services indicating that, for December 2014, approximately 50 percent of the approximately 7,651 active PSA cases in New York City, or 3,840 PSA cases, were Medicaid eligible. This presumes that the remaining 50 percent of PSA cases would be ineligible for Medicaid.

The fiscal estimate further assumes that each of these 456 individuals would be presumptively eligible for “immediate temporary personal care services” at the continuous personal care services level (i.e. “split-shift” services). This fiscal estimate also assumes that each of these 456 individuals would receive “split-shift” services for approximately 45 days until they are determined ineligible for Medicaid. Under Department regulation 18 NYCRR § 360-2.4, social services districts must generally determine Medicaid eligibility within 45 days, with certain exceptions. If the applicant’s Medicaid eligibility depends on disability status, the social services district is permitted as many as 90 days to determine Medicaid eligibility.

Continuous personal care services costs approximately $18 per hour, or $432 per day. The cost of continuous personal care services provided to 456 individuals for 45 days is nearly $9 million. ($432 x 45 days x 456 individuals). To the extent that social services districts are permitted 90 days to determine Medicaid eligibility based on disability, district costs could be nearly $18 million.

The potential cost to social services districts would decrease to the extent that physicians order less than split-shift care or districts are able to expedite their Medicaid eligibility determinations and recoup the cost of “immediate temporary personal care services” from presumptively eligible individuals who are found ineligible for Medicaid.

Costs to the Department of Health:

There will be no additional costs to the Department.

Local Government Mandates:

Consistent with Justice Madden’s July 2010 and March 2014 Orders, the proposed regulations would impose new mandates on social services districts. The proposed regulations would require districts to determine whether immediate temporary personal care services should be authorized for Medicaid applicants. Moreover, the proposed regulations would also require that districts bear the cost of services provided to presumptively eligible individuals who are subsequently determined ineligible for Medicaid.

Social services districts may no longer have adequate staff to assess Medicaid applicants and recipients for “immediate temporary personal care services” nor sufficient contracts with personal care vendors to provide the services. Since 2011, there has been a gradual transition of the personal care services benefit to managed long term care plans and mainstream managed care plans. These managed care entities have gradually assumed responsibility from districts for authorizing personal care services, other than Level I housekeeping services, for most Medicaid recipients.

Paperwork:

The proposed regulations require districts to notify Medicaid applicants whether they have been determined to be presumptively eligible for immediate temporary personal care services.

Duplication:

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

Alternatives:

There are no alternatives to the proposed regulations. Justice Madden’s July 2010 Order directed the Department to adopt regulations. The Department does not have a stay of that order.

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.

Revised Regulatory Flexibility Analysis

Effect of Rule:

The proposed regulations would affect 57 county social services districts and one city social services district, the City of New York.

Compliance Requirements:

The proposed regulations would impose compliance requirements on social services districts. These compliance requirements are consistent with orders issued on July 20, 2010, and March 12, 2014, by Justice Joan Madden, State Supreme Court, New York County, in Konstantinov v. Daines.

The proposed regulations would add new 18 NYCRR § 360-3.7(f), entitled “[p]resumptive eligibility for immediate temporary personal care services.”

For purposes of this new subdivision, “immediate temporary personal care services” means the number of hours of services that the Medicaid applicant’s physician has recommended in the physician’s order.

Medicaid applicants would be presumptively eligible for immediate temporary personal care services when:

• The social services district determines, based only on the Medicaid application and the DOH-4495A (“Access NY Supplement A”), that the applicant appears to be financially and otherwise eligible for Medicaid;

• The applicant has provided a physician’s order that meets the requirements of 18 NYCRR § 505.14(b)(3)(i), except that the order must recommend the number of hours of immediate temporary personal care services to be authorized, and that also documents that the applicant needs assistance with toileting, transferring, turning or positioning, walking, or feeding, has a stable medical condition, and can be cared for safely at home; and

• The applicant is in receipt of Protective Services for Adults (“PSA”) or has been referred to PSA and the district’s PSA staff have determined that a PSA investigation and assessment are necessary.

As expeditiously as possible, but no later than five business days after receipt of the Medicaid application, the DOH-4495A, and the physician’s order, social services districts would be required to determine whether the Medicaid applicant is presumptively eligible for immediate temporary personal care services and notify the individual of the district’s determination.

Social services districts would be required to arrange for the provision, as expeditiously as possible, of immediate temporary personal care services to presumptively eligible Medicaid applicants.

The proposed regulations would also amend the Department’s personal care services regulations to provide for presumptive eligibility for immediate temporary personal care services for Medicaid recipients. The proposed regulations would repeal 18 NYCRR § 505.14(b)(5)(iv) and add a new Section 505.14(b)(5)(iv) that generally mirrors the presumptive eligibility process for Medicaid applicants who seek “immediate temporary personal care services.”

Professional Services:

Social services districts may need to secure additional professional services to comply with the proposed regulations. Social services districts may have neither sufficient caseworker staff nor contracts with sufficient personal care services vendors to comply with the proposed regulations. Since 2011, there has been a gradual transition of the personal care services benefit to managed long term care plans and mainstream managed care plans. These managed care entities have gradually assumed responsibility from districts for authorizing personal care services, other than Level I housekeeping tasks, for most Medicaid recipients.

Compliance Costs:

No capital costs would be imposed as a result of the proposed regulations.

The proposed regulations could impose annual compliance costs upon social services districts. This provision of the proposed regulations is consistent with Justice Madden’s March 12, 2014, order, which directed that social services districts, not the State, are responsible for the cost of any “immediate temporary personal care services” provided to presumptively eligible Medicaid applicants who are subsequently determined to be financially or otherwise ineligible for Medicaid. Consistent with that order, the proposed regulations provide that social services districts must pay the cost of any “immediate temporary personal care services” that districts authorize for presumptively eligible Medicaid applicants who are subsequently determined ineligible for Medicaid.

The Department estimates that the potential annual costs to social services districts could be nearly $9 million and possibly as much as $18 million.

The estimated cost of $9 million assumes that “immediate temporary personal care services” in the form of continuous personal care services (“split-shift” services) would be authorized for up to 45 days for 456 presumptively eligible individuals who districts determine, on the 45th day after Medicaid application, are financially or otherwise ineligible for Medicaid. The estimated costs of up to $18 million assume that these services are authorized for up to 90 days for 456 presumptively eligible individuals who districts determine, after completion of a disability determination, to be financially or otherwise ineligible for Medicaid.

The potential costs to social services districts would vary depending upon several factors. These factors include the number of Medicaid applicants who seek immediate temporary personal care services as well as the number of Medicaid applicants determined presumptively eligible for such services who are ultimately found financially or otherwise ineligible for Medicaid. Other factors affecting social services districts’ costs include the extent to which physicians recommend fewer hours of personal care services than continuous personal care services and the extent to which social services districts expedite their Medicaid eligibility determinations and are able to recoup any costs from presumptively eligible individuals who are determined ineligible for Medicaid.

Economic and Technological Feasibility:

With regard to the economic feasibility of compliance with the proposed regulations, the proposed regulations are consistent with the March 12, 2014, order of Justice Madden. That order effectively interprets SSL § 364-i(7) as creating an exception to the Medicaid “cap” statute. Under this judicially created exception, social services districts are responsible to pay the cost of any “immediate temporary personal care services” provided to presumptively eligible Medicaid applicants who are subsequently determined ineligible for Medicaid. This fiscal liability is in addition to social services districts’ usual Medicaid “cap” contributions.

There are no technological requirements associated with the proposed regulations.

Minimizing Adverse Impact:

The proposed regulations were designed to minimize adverse effects on social services districts. As revised, the proposed regulations ease the burden on social services districts when determining whether Medicaid applicants are presumptively eligible for immediate temporary personal care services. Social services districts would authorize, for the duration of the Medicaid applicant’s presumptive eligibility period, the personal care services ordered by the applicant’s physician provided that the physician’s order documents that the Medicaid applicant has a stable medical condition and can be cared for safely at home.

Small Business and Local Government Participation:

The Department shared the revised proposed regulations with social services district representatives who represent districts’ interests through their positions with the New York Public Welfare Association and similar associations.

Revised 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:

The proposed regulations would impose compliance requirements on rural as well as urban social services districts. These compliance requirements are consistent with orders issued on July 20, 2010, and March 12, 2014, by Justice Joan Madden, State Supreme Court, New York County, in Konstantinov v. Daines.

The proposed regulations would add new 18 NYCRR § 360-3.7(f), entitled “[p]resumptive eligibility for immediate temporary personal care services.” Pursuant to Section 360-3.7(f), all social services districts would be required to determine whether Medical Assistance (“Medicaid”) applicants are “presumptively eligible” for “immediate temporary personal care services” pending completion of the applicants’ Medicaid eligibility determination.

Rural, as well as urban, social services districts would be required to determine whether, based only on the Medicaid application and the DOH-4495A (“Supplement A”), Medicaid applicants appear to be financially and otherwise eligible for Medicaid. As expeditiously as possible, but no later than five business days after receipt of the Medicaid application, Supplement A and the physician’s order, social services districts would be required to determine whether the Medicaid applicant is presumptively eligible for immediate temporary personal care services and notify the individual of the district’s determination.

Social services districts would be required to arrange for the provision, as expeditiously as possible, of immediate temporary personal care services to presumptively eligible Medicaid applicants.

The proposed regulations would also amend the Department’s personal care services regulations to provide for presumptive eligibility for immediate temporary personal care services. The proposed regulations would repeal 18 NYCRR § 505.14(b)(5)(iv) and add a new Section 505.14(b)(5)(iv) that generally mirrors the presumptively eligible process for Medicaid applicants who seem immediate temporary personal care services.

Rural, as well as urban, social services districts may need to secure additional professional services to comply with the proposed regulations. Social services districts may have neither sufficient caseworker staff nor contracts with sufficient personal care services vendors to comply with the proposed regulations. Since 2011, there has been a gradual transition of the personal care services benefit to managed long term care plans and mainstream managed care plans. These managed care entities have gradually assumed responsibility from districts for authorizing personal care services, other than Level I housekeeping tasks, for most Medicaid recipients.

Costs:

There are no new capital costs associated with the proposed regulations.

The proposed regulations could impose annual compliance costs upon rural as well as urban social services districts. The Department estimates that the potential annual costs to social services districts could be nearly $9 million and possibly as much as $18 million.

Minimizing Adverse Impact:

The proposed regulations were designed to minimize any adverse economic effects on rural as well as urban social services districts. They provide that Medicaid applicants who seek “immediate temporary personal care services” must appear, based only on the Medicaid application and Supplement A, to be financially and otherwise eligible for Medicaid. In addition, the social services district would not be required to perform a comprehensive and expedited personal care services assessment to determine whether the applicant is presumptively eligible for immediate temporary personal care services. For the duration of the applicant’s presumptive eligibility period, the district would authorize the number of hours recommended by the applicant’s physician in the physician’s order.

Rural social services districts may minimize any adverse economic effect by expediting their Medicaid eligibility determinations for presumptively eligible Medicaid applicants. By expediting Medicaid eligibility determinations for such individuals, social services districts would shorten the time period for which they could be liable for the cost of “immediate temporary personal care services” provided to presumptively eligible individuals subsequently determined ineligible for Medicaid.

Rural Area Participation:

The Department shared the revised proposed regulations with social services district representatives who represent districts’ interests through their positions with the New York Public Welfare Association and similar associations.

Revised Job Impact Statement

Changes made to the last published rule do not necessitate revision to the previously published JIS.

Assessment of Public Comment

The Department received a substantial number of detailed and significant public comments. The commentators included the following county social services districts: Albany, Chautauqua, Chemung, Erie, Greene, Lewis, Madison, Monroe, Nassau, Onondaga, Ontario, Orange, Rockland, St. Lawrence, Steuben and Westchester. The New York City Human Resources Administration also commented. Two associations that advocate on behalf of social services districts and counties commented: the New York Public Welfare Association and the New York State Association of Counties. Several organizations that advocate on behalf of Medicaid applicants and recipients commented. These entities were The Legal Aid Society, the New York Legal Assistance Group, the Empire Justice Center, the Coalition to Protect the Rights of New York’s Dually Eligible and the Consumer Directed Personal Assistance Association of New York State. Aytan Bellin, Esq., also commented.

1. Comment: Nearly all commentators expressed a common global concern that the proposed regulations did not reflect the dramatic structural changes to the Medicaid program that the State has gradually implemented and which have occurred since the Court issued its 2010 Order. Some of these change were driven by the State’s recent implementation of the Patient Protection and Affordable Care Act, under which the State, and not social services districts, determines the Medicaid eligibility of many, but not all, Medicaid applicants. Other changes were the result of Governor Cuomo’s Medicaid Redesign Team (“MRT”) initiatives. One such MRT initiative is gradually transferring from social services districts to private managed care entities the responsibility for authorizing personal care services for most, but not all, Medicaid recipients. Another MRT initiative is gradually transferring to the State the responsibility for administering the Medicaid program itself, which has long been a locally-administered and State-supervised program.

Response: The Department agrees with the commentators’ observation that the “environment has changed” since the Court’s 2010 Order was issued. Nonetheless, social services districts currently remain responsible for determining the Medicaid eligibility of many Medicaid applicants. The proposed regulations must thus set forth the process by which individuals who file Medicaid applications with social services districts may obtain immediate temporary personal care services. This is necessary to comply with the Court’s 2010 Order.

2. Comment: The New York Legal Assistance Group (“NYLAG”) advocated an alternative model for authorizing and delivering immediate temporary personal care services, and other advocacy groups endorsed this comment. Given that the personal care services authorization process has, for the most part, shifted from social services districts to managed long term care plans and managed care organizations, NYLAG proposed that, instead of “recreating the old assessment and delivery system solely for temporary personal care services. . . . . that the system developed for managed long term care assessment and delivery be used.” This model would employ the Conflict-Free Evaluation and Enrollment Center (“CFEEC”) that the Department implemented October 1, 2014, on a phased-in basis at the direction of the federal Centers for Medicare & Medicaid Services. The commentators suggested that, in New York City and other counties in which the CFEEC presently operates, the filing of a Medicaid application and a request for immediate temporary personal care services would trigger a referral by the social services district to the CFEEC, which would determine whether the applicant was eligible for personal care services and, if so, the CFEEC’s nurse assessor would authorize a plan of care. In counties in which the CFEEC does not yet operate, but whose dually-eligible Medicaid recipients are subject to mandatory enrollment in a managed long term care (“MLTC”) plan, the commentators suggested that a new presumptive eligibility code should be created that would allow MLTC plans to enroll Medicaid applicants before the social services district has determined their Medicaid eligibility and to immediately assess their need for personal care services. The commentator also suggested that, only in districts in which MLTC was not yet mandatory for dual-eligible recipients, or at the option of social services districts even in mandatory counties, the district would determine both Medicaid and home care eligibility and authorize immediate temporary personal care services.

Response: The commentator’s suggestions are innovative and reflect considerable thought regarding this issue. The suggestions are nonetheless beyond the scope of the proposed regulations and beyond the Department’s present ability to implement. The CFEEC is unable to conduct assessments for personal care services that result in the development of plans of care. It currently only evaluates whether an individual meets the threshold standard for enrollment in a MLTC plan; that is, whether the individual needs community-based long term care services for 120 days or more. Nor may MLTC plans currently enroll individuals who have not yet been determined eligible for Medicaid.

3. Comment: Several commentators noted that the proposed regulations must address individuals who apply for Medicaid to the NY State of Health, which is the State’s health insurance marketplace, rather than to social services districts.

Response: The NY State of Health is unable to render presumptive eligibility determinations for Medicaid applicants seeking immediate temporary personal care services. Social services districts will render these presumptive eligibility determinations for all Medicaid applicants seeking this new service, and will employ the appropriate budgeting methodology, whether Modified Adjusted Gross Income (MAGI) or non-MAGI. No change to the proposed regulations is needed.

4. Comment: The Greene County Department of Social Services commented that it is a mandatory MLTC county, and its “front door is closed” to personal care services. It stated that “all referrals” for personal care services “go to Maximus” and asked whether the proposed regulations “were an exception to this policy.”

Response: Yes. The proposed regulations create an exception to the overall trend since the Court issued its Order in 2010. Since that time, with limited exceptions for those who are exempt or excluded from enrollment, managed care organizations and MLTC plans have generally been responsible for authorizing personal care services for most Medicaid recipients with a need for such services. This process applies only to Medicaid recipients, however; that is, persons who have already been found eligible for Medicaid. The Court’s 2010 Order requires that the Department develop and implement a process by which Medicaid applicants with an immediate need for personal care services may request and obtain such services. Managed care entities cannot address this need for Medicaid applicants. Social services districts remain responsible for determining Medicaid eligibility for most Medicaid applicants. Consequently, it is they who must be responsible for determining whether Medicaid applicants are also presumptively eligible for immediate temporary personal care services. This is necessary to comply with the Court’s 2010 Order.

5. Comment: The Department received voluminous comments pertaining to the proposed provisions governing whether a Medicaid applicant is “presumptively eligible for immediate temporary personal care services.” Many of these comments addressed the provision that the applicant must “reasonably appear,” based on preliminary information, to be financially and otherwise eligible for Medicaid. The New York City Human Resources Administration, for example, commented that, in order for a local district “to even remotely assess” that an applicant “reasonably appears” to be eligible, it would “need a complete Medicaid application and Supplement A that identifies the person’s assets and resources.” The New York Legal Assistance Group, joined by other advocacy groups, urged that applicants “should be allowed to attest to their resources upon application for Medicaid.”

Response: The Department has revised the proposed regulations in response to the comments. As revised, the proposed regulations provide that Medicaid applicants seeking presumptive eligibility for immediate temporary personal care services must submit a Medicaid application and the DOH-4495A (Access NY Supplement A) or any successor to such supplement. By signing these documents, the Medicaid applicant is certifying that the information contained in the documents is correct. When determining whether Medicaid applicants are presumptively eligible for immediate temporary personal care services, social services districts will be expected to use only the information set forth in the Medicaid application and Supplement A, as certified by the applicant, and prepare a budget accordingly. A final eligibility determination would require documentation.

6. Comment: Several commentators asked whether the proposed regulations would enable Medicaid applicants having income or resources in excess of eligibility levels (i.e. spenddown individuals) to be determined to be presumptively eligible for immediate temporary personal care services.

Response: Medicaid applicants who have excess income or resources are not excluded from presumptive eligibility for immediate temporary personal care services; however, no payment should be made for immediate temporary personal care services until these individuals incur bills sufficient to meet their spenddown amount. This is consistent with current requirements applicable to spenddown cases. No change in the proposed regulations is necessary to address this comment.

7. Comment: Many comments were received regarding the provisions of the proposed regulations governing the personal care services assessment and authorization process. In particular, the proposal that social services districts complete the assessment process and authorize services within five business days after receipt of the Medicaid application and the physician’s order generated considerable comment. Districts commented that five business days were “an implausible timeline” for eligibility determinations, that being required to complete a social and nursing assessment and ensure that services are in place within five days would be a “particular challenge,” and that it is becoming “more difficult to find a licensed home care services agency willing and/or able to begin services within a five day time frame.”

Response: The Department has revised the proposed regulations in response to the comments. The revised proposed regulations delete the previous requirement that social services districts, within five business days of receipt of the Medicaid application and physician’s order, conduct a complete personal care services assessment pursuant to 18 NYCRR § 505.14, determine whether the applicant is presumptively eligible, notify the applicant of the presumptive eligibility determination, and arrange for the provision of immediate temporary personal care services for those individuals who are determined to be presumptively eligible. Under the revised proposed regulations, social services districts would not be required to conduct an expedited personal care services assessment within five business days. Rather, for those Medicaid applicants whom the social services district determines to be presumptively eligible, the district would authorize, for the duration of the individual’s presumptive eligibility period, the number of hours of personal care services that the individual’s physician had recommended.

8. Comment: Several commentators remarked upon the role of the Protective Services for Adults (“PSA”) program in relation to the proposed regulations. The New York City Human Resources Administration commented that the PSA program in NYC “utilizes the CASA/MLTC/MC program/plans to obtain long term care services for their clients” and by their inclusion in the PSA program, “these individuals are considered particularly vulnerable.”

Response: The Department has revised the proposed regulations in response to the comments. As HRA recognized, individuals who receive Protective Services for Adults are considered to be particularly vulnerable. Whether due to physical or mental impairments, they are unable to meet their essential need for life’s necessities, such as medical care, need protection from actual or threatened harm, and have no one available who is willing and able to assist them responsibly. Further, the Department’s personal care services regulations have long provided for close collaboration between staff responsible for PSA and staff responsible for personal care services to assure that personal care services may be provided as part of a PSA plan. Accordingly, the revised proposed regulations provide that presumptive eligibility for immediate temporary personal care services is to address the immediate needs for personal care services for those individuals who are in receipt of PSA or have been referred to PSA and for whom the district has determined that a PSA investigation and assessment are needed.

9. Comment: Social services districts objected to that provision of the proposed regulations that would hold social services districts fiscally responsible for the cost of immediate temporary personal care services that are authorized for Medicaid applicants who, although found presumptively eligible for immediate temporary personal care services, are subsequently determined to be ineligible for Medicaid.

Response: The Medicaid program lacks the authority to pay for immediate temporary personal care services provided to Medicaid applicants who are determined to be ineligible for Medicaid. No revisions have been made to the proposed regulations to address this comment.