HLT-28-14-00008-P Immediate Needs for Personal Care Services
7/16/14 N.Y. St. Reg. HLT-28-14-00008-P
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 28
July 16, 2014
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. HLT-28-14-00008-P
Immediate Needs for Personal Care Services
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed 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 proposed rule:
Subdivision (f) is added to Section 360-3.7 to read as follows:
(f) Presumptive eligibility for immediate temporary personal care services. An individual who, upon application for Medical Assistance, has an immediate need for personal care services will be presumed eligible for immediate temporary personal care services as provided in this subdivision.
(1) Definitions. The following definitions apply to this subdivision:
(i) Immediate need for personal care services means a need for assistance with one or more personal care functions, as set forth in clause (a)(6)(ii)(a) of Section 505.14 of this title, that, unless met within five business days, is reasonably expected to seriously jeopardize the individual’s health and safety such that the individual would require temporary placement in a hospital or nursing facility to protect the individual’s health and safety.
(ii) Immediate temporary personal care services means assistance with one or more personal care functions, as set forth in clause (a)(6)(ii)(a) of Section 505.14 of this title, that is authorized pursuant to this subdivision to an individual who is presumptively eligible for such services.
(2) Presumptive eligibility for immediate temporary personal care services.
(i) An individual is presumptively eligible for immediate temporary personal care services when:
(a) The individual has applied to the social services district for Medical Assistance;
(b) The individual reasonably appears, based on preliminary information, to be financially and otherwise eligible for Medical Assistance including, if the individual is a nonimmigrant, having a satisfactory immigration status;
(c) The individual has submitted a written request for immediate temporary personal care services explaining the need for such services including why the individual is unable to meet that need;
(d) The individual has submitted a physician’s order for personal care services and the physician’s order documents an immediate need for personal care services, as defined in subparagraph (1)(i) of this subdivision;
(e) The individual has a stable medical condition, as defined in subparagraph (a)(4)(i) of Section 505.14 of this title;
(f) The individual is self-directing, as defined in subparagraph (a)(4)(ii) of Section 505.14 of this title, or, if non self-directing, meets the requirements of clause (a), (b), or (c) of such subparagraph;
(g) The individual can self-administer needed medications or, if unable to self-administer needed medications, has an informal or formal support that is able to administer such medications; and
(h) The social services district determines that the individual has an immediate need for personal care services that cannot be met, in whole or in part, by one or more alternative means to meet the individual’s need including, but not limited to, the following:
(1) The individual’s available income and resources; the available income and resources of the individual’s legally responsible relatives, if any; or the available income and resources of any other person including, but not limited to, a non-legally responsible relative of the individual;
(2) Informal supports, including family members or friends, or community supports that are available to the individual including any home care or other services that are currently being provided to the individual;
(3) Available third party health insurance or benefits under Title XVIII of the Social Security Act; or
(4) The Protective Services for Adults program.
(ii) An individual who has an immediate need for personal care services is not presumptively eligible for immediate temporary personal care services to the extent that the individual’s need can be met, in whole or in part, by one or more alternative means of meeting the individual’s need, as specified in clause (2)(i)(h) of this subdivision.
(3) Assessment and Authorization Process. As expeditiously as possible, but no later than five business days after receipt of the Medical Assistance application and physician’s order, the social services district must:
(i) Obtain or complete a social assessment, a nursing assessment and an assessment of other services pursuant to subparagraphs (b)(3)(ii) through (b)(3)(iv), respectively, of Section 505.14 of this title;
(ii) If the case involves the provision of continuous personal care services, refer the case to the local professional director or designee for an independent medical review pursuant to paragraph (b)(4) of Section 505.14 of this title, except that the local professional director’s or designee’s final determination must be made as soon as possible after receipt of the physician’s order and the required assessments;
(iii) Determine whether the individual is presumptively eligible for immediate temporary personal care services;
(iv) Provide notice to the individual of the district’s determination whether the individual is presumptively eligible for immediate temporary personal care services and, if so, the number of hours of immediate temporary personal care services for which the individual has been determined to be presumptively eligible; and
(v) With respect to those individuals determined to be presumptively eligible for immediate temporary personal care services, issue an authorization for, and arrange for the provision of, immediate temporary personal care services.
(4) Presumptive eligibility period.
(i) An individual’s period of presumptive eligibility for immediate temporary personal care services begins on the day that the social services district determines that the individual is presumptively eligible for immediate temporary personal care services.
(ii) An individual’s period of presumptive eligibility for immediate temporary personal care services ends:
(a) with respect to a presumptively eligible individual who is determined ineligible for Medical Assistance, on the day that the social services district makes such determination; and
(b) with respect to a presumptively eligible individual who is determined eligible for Medical Assistance; who is subject to enrollment in a managed long term care plan operating pursuant to Section 4403-f of the Public Health Law, a managed care provider operating pursuant to Section 364-j of the Social Services Law, or any other similar entity that provides care and services, including personal care services, to Medical Assistance recipients; and who has submitted a service request for personal care services to such entity, on the day that the managed long term care plan, managed care provider or other entity determines whether the individual is eligible for personal care services.
(5) Fair hearings and aid-continuing.
(i) An individual who is determined not to be presumptively eligible for immediate temporary personal care services may request a fair hearing pursuant to Part 358 of this title to appeal the denial of presumptive eligibility.
(ii) An individual who has been determined to be presumptively eligible for immediate temporary personal care services may request a fair hearing pursuant to Part 358 of this title to appeal the amount and scope of the immediate temporary personal care services for which the individual has been determined to be presumptively eligible.
(iii) An individual who has been determined to be presumptively eligible for immediate temporary personal care services but is subsequently determined to be ineligible for Medical Assistance may request a fair hearing pursuant to Part 358 of this title to appeal the denial of Medical Assistance; however, the individual’s presumptive eligibility period will not be extended by such request and there is no right to aid-continuing of immediate temporary personal care services after the individual’s presumptive eligibility period has ended.
(6) Recoupment and reimbursement. If an individual is determined to be presumptively eligible for immediate temporary personal care services pursuant to this subdivision and is subsequently determined to be ineligible for Medical Assistance, any sums expended for such services during the period of presumptive eligibility may be recouped from the individual. Any sums expended for such services that are unable to be recouped 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) When a patient has an immediate need for personal care services, the district must conduct an expedited assessment pursuant to this subparagraph.
(a) An immediate need for personal care services means a need for assistance with one or more personal care functions set forth in clause (a)(6)(ii)(a) of this Section that, unless met within five business days, is reasonably expected to seriously jeopardize the patient’s health and safety such that the patient would require temporary placement in a hospital or nursing facility to protect the patient’s health and safety.
(b) The physician’s order must document an immediate need for personal care services.
(c) As expeditiously as possible, but no later than five business days after receipt of the physician’s order, the district must:
(1) Obtain or complete a social assessment, nursing assessment, and an assessment of other services pursuant to subparagraphs (b)(3)(ii) through (b)(3)(iv), respectively, of this Section;
(2) If the case involves the provision of continuous personal care services, refer the case to the local professional director or designee for an independent medical review pursuant to paragraph (b)(4) of this Section, except that the local professional director’s or designee’s final determination must be made as soon as possible after receipt of the physician’s order and the required assessments;
(3) Determine whether the patient is eligible for personal care services and provide notice to the patient of the district’s determination; and
(4) With respect to those patients determined to be eligible for personal care services, issue an authorization for, and arrange for the provision of, such 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, (518) 473-7488, email: regsqna@health.state.ny.us
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 § 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 filed a notice of appeal of Justice Madden’s March 2014 Order, but that appeal does not stay her July 2010 Order.
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,” and also provide for the performance of expedited assessments.
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 an expedited assessment process for Medicaid recipients that essentially mirrors the expedited assessment process for Medicaid applicants who seek “immediate temporary personal care services.”
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 $18 million and possibly as much as $35 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 is 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 Department estimates that the potential annual costs to social services districts could be nearly $18 million and possibly as much as $35 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 913 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.
The fiscal estimate assumes that each of these 913 individuals would be determined 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 913 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 913 individuals for 45 days is nearly $18 million. ($432 x 45 days x 913 individuals). To the extent that social services districts are permitted 90 days to determine Medicaid eligibility based on disability, district costs could be nearly $35 million.
The potential cost to social services districts would decrease to the extent that districts authorize less than split-shift care, expedite their Medicaid eligibility determinations, or are able to 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 assess whether personal care services should be authorized for Medicaid applicants, which districts have never done. 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 conduct expedited assessments but would not impose new paperwork requirements.
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. Further, by order dated June 16, 2014, Justice Madden directed the Department to submit proposed regulations to implement her July 2010 Order to the Secretary of State for publication by July 16, 2014.
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 would affect social services districts. There are 58 social services districts in New York State. There are 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.” Pursuant to Section 360-3.7(f), social services districts would be required to determine whether Medical Assistance (“Medicaid”) applicants who assert that they have an “immediate need” for personal care services are “presumptively eligible” for “immediate temporary personal care services” pending completion of the applicants’ Medicaid eligibility determination.
Social services districts would be required to determine whether, based on preliminary information, Medicaid applicants “reasonably appear” to be financially and otherwise eligible for Medicaid.
Social services districts would also be required to conduct expedited assessments of Medicaid applicants’ eligibility for “immediate temporary personal care services.” As expeditiously as possible, but no later than five business days after receipt of the Medicaid application and physician’s order, social services districts would be required to:
• Obtain or complete a social assessment, a nursing assessment and an assessment of other services pursuant to existing regulations;
• Refer the case to the local professional director, if the case involves the provision of continuous personal care services (“split-shift” services);
• Determine whether the Medicaid applicant is presumptively eligible for “immediate temporary personal care services”;
• Notify the individual of the district’s determination; and
• For those individuals determined to be presumptively eligible for “immediate temporary personal care services,” issue an authorization for, and arrange for the provision of, the services.
A social services district’s determination whether to grant presumptive eligibility for “immediate temporary personal care services” would be based, in part, on the district’s determination that the Medicaid applicant “reasonably appears,” based on preliminary information, to be financially and otherwise eligible for Medicaid. If, after completion of the Medicaid eligibility process, the social services district determines that the presumptively eligible applicant is financially or otherwise ineligible for Medicaid, the district is responsible for the cost of any “immediate temporary personal care services” authorized for the individual during the individual’s presumptive eligibility period.
The proposed regulations would also amend the Department’s personal care services regulations to provide for an expedited assessment of Medicaid recipients who assert that they have an immediate need for personal care services. The Department’s regulations at 18 NYCRR § 505.14(b)(5)(iv) have long provided for an expedited assessment process for Medicaid recipients (i.e. individuals who social services districts have determined are financially and otherwise eligible for Medicaid) with an immediate need for personal care services. The proposed regulations would repeal existing Section 505.14(b)(5)(iv) and add a new Section 505.14(b)(5)(iv) that essentially mirrors the expedited assessment 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 timely 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 individuals who are subsequently determined ineligible for Medicaid.
The Department estimates that the potential annual costs to social services districts could be nearly $18 million and possibly as much as $35 million.
The estimated cost of $18 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 913 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 $35 million assumes that these services are authorized for up to 90 days for 913 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 districts authorize fewer hours of personal care services than continuous personal care services, expedite their Medicaid eligibility determinations, or 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 any adverse economic effects on social services districts. They provide that Medicaid applicants who seek “immediate temporary personal care services” must “reasonably appear” based on “preliminary information” to be financially and otherwise eligible for Medicaid. In addition, the proposed regulations provide that, when a presumptively eligible individual is subsequently determined ineligible for Medicaid, the individual may request a fair hearing to appeal the denial of Medicaid eligibility; however, the individual’s presumptive eligibility period is not extended by the fair hearing request and there is no aid-continuing of the “immediate temporary personal care services” the individual had received during his or her presumptive eligibility period. The proposed regulations also provide that social services districts may recoup the cost of “immediate temporary personal care services” provided to presumptively eligible individuals who are subsequently determined ineligible for Medicaid.
Social services districts may also minimize any adverse economic effect by expediting their Medicaid eligibility determinations for presumptively eligible individuals. 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 found ineligible for Medicaid.
Small Business and Local Government Participation:
As a result of recent activity in this litigation, Justice Madden directed, by order dated June 16, 2014, that the Department submit to the Secretary of State for publication by July 16, 2014, proposed regulations conforming to her July 2010 Order. The Department was thus unable to ensure that social services districts had an opportunity to participate in the rulemaking process. However, the New York City Human Resources Administration (“HRA”), is a party to the Konstantinov litigation. It is the social services district that the proposed regulations would most directly affect since it has historically had the highest personal care services caseload.
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 who assert that they have an “immediate need” for personal care services 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 on preliminary information, Medicaid applicants “reasonably appear” to be financially and otherwise eligible for Medicaid.
Rural, as well as urban, social services districts would also be required to conduct expedited assessments of the Medicaid applicants’ eligibility for “immediate temporary personal care services.” As expeditiously as possible, but no later than five business days after receipt of the Medicaid application and physician’s order, rural, as well as urban, social services districts would be required to:
• Obtain or complete a social assessment, a nursing assessment and an assessment of other services pursuant to existing regulations;
• Refer the case to the local professional director, if the case involves the provision of continuous personal care services (“split-shift” services);
• Determine whether the Medicaid applicant is presumptively eligible for “immediate temporary personal care services”;
• Notify the individual of the district’s determination; and
• For those individuals determined to be presumptively eligible for “immediate temporary personal care services,” issue an authorization for, and arrange for the provision of, the services.
Rural, as well as urban, social services districts’ determinations whether to grant presumptive eligibility for “immediate temporary personal care services” would be based, in part, on the districts’ determination that Medicaid applicants “reasonably appear,” based on preliminary information, to be financially and otherwise eligible for Medicaid. If, after completion of the Medicaid eligibility process, a social services district determines that the presumptively eligible applicant is financially or otherwise ineligible for Medicaid, the district is responsible for the cost of any “immediate temporary personal care services” authorized for the individual during the individual’s presumptive eligibility period.
The proposed regulations would also amend the Department’s personal care services regulations to provide for an expedited assessment of Medicaid recipients who assert that they have an immediate need for personal care services. This would apply to rural as well as urban social services districts. The Department’s regulations at 18 NYCRR § 505.14(b)(5)(iv) have long provided for an expedited assessment process for Medicaid recipients (i.e. individuals who social services districts have determined are financially and otherwise eligible for Medicaid) with an immediate need for personal care services. The proposed regulations would repeal existing Section 505.14(b)(5)(iv) and add a new Section 505.14(b)(5)(iv) that mirrors the expedited assessment process for Medicaid applicants who seek “immediate temporary personal are 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 timely 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 $18 million and possibly as much as $35 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 “reasonably appear” based on “preliminary information” to be financially and otherwise eligible for Medicaid. In addition, the proposed regulations provide that, when a presumptively eligible individual is subsequently determined ineligible for Medicaid, the individual may request a fair hearing to appeal the denial of Medicaid eligibility; however, the individual’s presumptive eligibility period is not extended by the fair hearing request and there is no aid-continuing of the “immediate temporary personal care services” the individual had received during his or her presumptive eligibility period. In addition, the proposed regulations provide that social services districts may recoup the cost of “immediate temporary personal care services” from presumptively eligible individuals who are subsequently determined to be ineligible for Medicaid.
Rural social services districts may also minimize any adverse economic effect by expediting their Medicaid eligibility determinations for presumptively eligible individuals. 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 did not seek rural area participation with regard to the proposed regulations. As a result of recent activity in this litigation, Justice Madden directed that the Department submit a Notice of Proposed Rulemaking to the Department of State for publication by July 16, 2014. The Department was thus unable to ensure that rural social services districts had an opportunity to participate in the rulemaking process.
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.
