HLT-36-14-00012-P Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)

9/10/14 N.Y. St. Reg. HLT-36-14-00012-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 36

September 10, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-36-14-00012-P

Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)

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

Proposed Action:

Amendment of sections 505.14 and 505.28 of Title 18 NYCRR.

Statutory authority:

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

Subject:

Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP).

Purpose:

To establish definitions, criteria and requirements associated with the provision of continuous PC and continuous CDPA services.

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

The proposed regulations conform the Department’s personal care services regulations at 18 NYCRR § 505.14 to State law [Social Services Law § 365-a(2)(e)(iv)], which caps social services districts’ authorizations for nutritional and environmental support functions, commonly referred to as housekeeping or Level I functions, to no more than eight hours per week for those Medicaid recipients who need only that level of care. The proposed regulations also revise the criteria for social services districts’ authorizations of continuous personal care services (i.e. “split-shift” services) and live-in 24-hour personal care services consistent with the preliminary injunction decision in Strouchler v. Shah, 891 F.Supp. 2d 504 (S.D.N.Y. 2012).

In subdivision 505.14(a), which contains definitions and provisions relating to the scope of personal care services, the definitions of “some assistance,” “total assistance,” and “continuous 24-hour personal care services” are repealed. Definitions of “continuous personal care services” and “live-in 24-hour personal care services” are added. Also added is a provision that personal care services shall not be authorized to the extent that the patient’s need for assistance can be met by voluntary assistance from informal caregivers, formal services or adaptive or specialized equipment. With regard to nutritional and environmental support functions (“Level I” services), a provision is added limiting the authorization to no more than eight hours per week. The list of Level II personal care functions is amended by the addition of “turning and positioning.”

In paragraph 505.14(b)(3), which specifies factors that the nursing assessment must include, the nursing assessment must include an evaluation whether adaptive or specialized equipment or supplies can meet the patient’s need for assistance and whether such equipment or supplies can be provided safely and cost-effectively. The nursing assessment would no longer be required to include an evaluation of the degree of assistance required for each function or task, since the definition of “some assistance” and “total assistance” is deleted.

In paragraph 505.14(b)(4), which specifies the circumstances under which the local professional director must conduct an independent medical review, such reviews would have to be conducted in cases involving live-in 24-hour personal care services as well as cases involving continuous personal care services. The nursing assessment in continuous personal care services and live-in 24-hour cases would have to document certain factors, such as whether the physician’s order had documented a medical condition that causes the patient to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, or feeding. The social assessment in live-in 24-hour cases would have to evaluate whether the patient’s home has adequate sleeping arrangements for a personal care aide. In continuous personal care services and live-in 24-hour cases, the local professional director could consult with the patient’s treating physician and conduct an additional assessment in the home. The final determination regarding the level of care to be authorized would have to be made with reasonable promptness, generally not to exceed seven business days after receipt of required documentation.

In subparagraph 505.14(b)(5)(v), the requirements for social services districts’ notices to recipients for whom districts have determined to deny, reduce or discontinue personal care services would be revised and reorganized.

The proposed regulations make conforming changes to the Department’s regulations governing the consumer directed personal assistance program (“CDPAP”), which are at 18 NYCRR § 505.28.

In subdivision 505.28(b), which contains definitions relating to the CPDAP, the definitions of “continuous 24-hour consumer directed personal assistance” “some assistance” and “total assistance” are repealed. The definition of “consumer directed personal assistance” is amended to delete references to “some or total” assistance. The definition of “personal care services” is amended to provide that, for individuals whose needs are limited to nutritional and environmental support functions (i.e. housekeeping tasks), personal care services shall not exceed eight hours per week. Definitions of “continuous consumer directed personal assistance” and “live-in 24-hour consumer directed personal assistance” are added.

In paragraph 505.28(d)(2), which specifies factors that the social assessment must include, the social assessment in continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance cases must document that all alternative arrangements for meeting the individual’s needs have been explored or are infeasible. The social assessment for live-in 24-hour cases must evaluate whether the consumer’s home has adequate sleeping accommodations for a live-in aide.

In paragraph 505.28(d)(3), which specifies factors that the nursing assessment must include, the nursing assessment in continuous consumer directed personal assistance cases and live-in 24-hour consumer directed personal assistance cases would have to document certain factors, such as whether the physician’s order has documented a medical condition that causes the consumer to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks.

Paragraph 505.28(d)(5), which specifies requirements for the local professional director’s review, is repealed and a new paragraph 505.28(d)(5) is added. Cases involving continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance would have to be referred to the local professional director or designee for review and final determination of the level and amount of services to be authorized. The local professional director or designee would be required to consider information in the social and nursing assessments and may consult with the consumer’s treating physician and conduct an additional assessment in the home. The final determination of the level and amount of care to be authorized must be made with reasonable promptness, generally not to exceed seven business days after receipt of all information.

Subdivision 505.28(e), which pertains to the authorization process, would be amended to provide that consumer directed personal assistance shall not be authorized to the extent that a consumer’s need for assistance can be met by voluntary assistance from informal caregivers, formal services or adaptive or specialized equipment.

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

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

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

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) and 365-f, respectively, the Medicaid program includes personal care services and the consumer directed personal assistance program (“CDPAP”). Under SSL § 365-a(2)(e)(iv), personal care services cannot exceed eight hours weekly for individuals who need assistance only with nutritional and environmental support functions.

Legislative Objectives:

The Legislature vested the Department with responsibility to develop standards for personal care services and the CDPAP. The proposed regulations are consistent with this objective. They conform the Department’s regulations to State law limiting the hours of services that may be authorized weekly for individuals who need assistance only with nutritional and environmental support functions. They also revise the standards for the authorization of personal care services and the CDPAP for Medicaid recipients who need a greater level of assistance, up to and including continuous services for 24 hours per day.

Needs and Benefits:

The proposed regulations conform the Department’s regulations to SSL § 365-a(2)(e)(iv), which caps authorizations for nutritional and environmental support functions to eight hours per week for individuals whose needs are limited to that level of care. The term “nutritional and environmental support functions” refers to shopping, light cleaning, meal preparation and similar housekeeping tasks, long referred to in the Department’s regulations as “Level I” tasks. Effective October 4, 2011, the Department adopted emergency regulations that conformed to the recent State law by capping Level I authorizations to no more than eight hours per week. (See Emergency Rule Making, I.D. No. HLT-42-11-00014-E, published in the NYS Register on October 19, 2011.) The proposed regulations adopt this eight hour cap on nutritional and environmental support functions as a permanent rule.

Many Medicaid recipients require a greater level of assistance than do those recipients who need assistance only with nutritional and environmental support functions. These include recipients who need assistance with personal care functions such as toileting, walking, transferring, and feeding, as well as positioning. The proposed regulations revise the standards governing social services districts’ authorizations of personal care services and the CDPAP for individuals who need a greater level of assistance, up to and including live-in 24-hour services provided by one aide and 24-hour continuous services provided by more than one aide, commonly referred to as “split-shift” care.

The Department’s October 4, 2011, emergency regulations established standards for the provision of continuous personal care services and live-in 24-hour personal care services. “Continuous personal care services” means the provision of uninterrupted care, by more than one person, for more than 16 hours per day for a patient who, because of the patient’s medical condition and disabilities, requires total assistance with toileting, walking, transferring or feeding at times that cannot be predicted. “Live-in 24-hour” personal care services means the provision of care by one person for a patient who, because of the patient’s medical condition and disabilities, requires some or total assistance with one or more personal care functions during the day and night and whose need for assistance during the night is infrequent or can be predicted. Similar amendments were made to the Department’s CDPAP regulations.

In Strouchler v. Shah, a federal class action filed in April 2012, plaintiff Medicaid recipients of 24-hour split-shift services challenged the Department’s emergency regulations. Plaintiffs alleged, in part, that the regulations denied medically necessary 24-hour split-shift care to recipients who needed toileting or turning and positioning every two hours at night because their need for assistance, although frequent, was deemed “predictable.”

On September 4, 2012, the Court preliminarily enjoined the Department to clarify the interpretation and application of the Department’s emergency regulations with respect to the availability of 24-hour “split-shift care for needs that are predicted and for patients whose only nighttime need is turning and positioning.” See Strouchler v. Shah, 891 F.Supp. 2d 504 (S.D.N.Y. 2012).

On October 3, 2012, the Department issued this clarification. (See GIS 12 MA/026, entitled “Availability of 24-Hour Split-Shift Personal Care Services,” posted on the Department’s website: www.health.ny.gov/health_care/medicaid/publications/gis.)

In GIS 12 MA/026, the Department noted that it was considering changes to its regulations and, in the interim, set forth specific clarifications. For example, the fact that a person’s needs are “predictable” does not preclude the receipt of 24-hour split-shift care. Further, a person’s need for turning and positioning or adult diaper changes, by themselves, neither preclude nor justify the receipt of 24-hour split-shift care. In all such cases, if the person has a documented medical need for the task to be performed with a frequency that would not allow a live-in aide to perform the task and still obtain an uninterrupted five hours of sleep, 24-hour split-shift care may be appropriate. This is consistent with the standard for live-in home care employees issued by the New York State Department of Labor.

The proposed regulations incorporate the concepts set forth in the Strouchler preliminary injunction decision and in GIS 12 MA/026 for determining whether 24-hour split-shift care or live-in 24-hour care would be appropriate for persons who need 24-hour care. They would define “continuous personal care services” as follows:

the provision of uninterrupted care, by more than one personal care aide, for more than 16 hours in a calendar day for a patient who, because of the patient’s medical condition, needs assistance during such calendar day with toileting, walking, transferring, turning and positioning, or feeding and needs assistance with such frequency that a live-in 24-hour personal care aide would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep.

The proposed regulations also define “live-in 24-hour personal care services” as follows:

the provision of care by one personal care aide for a patient who, because of the patient’s medical condition, needs assistance during a calendar day with toileting, walking, transferring, turning and positioning, or feeding and whose need for assistance is sufficiently infrequent that a live-in 24-hour personal care aide would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep.

The proposed regulations delete the definitions of “some assistance” and “total assistance.” These definitions are subject to misinterpretation and are not useful for determining those persons who, because of their frequent need for assistance at night, may be eligible for 24-hour split-shift care.

The proposed regulations add “turning and positioning” as a discrete personal care function, the frequent need for which could warrant 24-hour split-shift care. The Department had long interpreted the task of “transferring” as also including “turning and positioning.” Nevertheless, it is indisputable that a bed-bound individual who needs frequent turning and positioning at night may be appropriate for 24-hour split-shift care even if that individual, due to his or her bed-bound status, does not need assistance with transferring. The proposed regulations make this clear.

The proposed regulations also require that the nursing assessments that districts currently complete or obtain include an evaluation of several factors set forth in GIS 12 MA/026. The local professional director or designee would be required to consider these factors when determining whether split-shift or live-in 24-hour care was appropriate.

The proposed regulations further provide that personal care services shall not be authorized when the patient’s need for assistance can be met by the voluntary assistance of informal caregivers, by formal services or by adaptive or specialized equipment or supplies that can be provided safely and cost-effectively.

The proposed regulations also make technical revisions to the Department’s regulations governing the content of notices that social services districts issue when denying, reducing or discontinuing personal care services.

The regulations adopt similar changes to the Department’s CDPAP regulations at 18 NYCRR § 505.28.

Costs to Regulated Parties:

Regulated parties include entities that contract with social services districts to provide personal care services or CDPAP services to Medicaid recipients. These entities include licensed home care services agencies and CDPAP fiscal intermediaries. The proposed regulations would not cause these entities to incur compliance costs. If these entities were formerly reimbursed for more than eight hours per week for providing light cleaning and other nutritional and environmental support functions to individuals whose needs were limited to such services, their Medicaid revenue has decreased. However, this is a consequence of State law and not of the proposed regulations.

Costs to State Government:

The statutory cap on nutritional and environmental support functions to no more than eight hours per week results in annual Medicaid State share cost-savings of approximately $3.4 million. These cost-savings are a result of the change in State law rather than the proposed regulations.

The cost to State Medicaid expenditures of the remaining proposed regulations cannot be estimated with precision. Since mid-2011, and with the federal government’s approval, the Department has gradually been transitioning the responsibility for the personal care services benefit from social services districts to managed care organizations and managed long term care plans. Some recipients remain excluded or exempt from enrolling in a managed care environment and would continue to receive split-shift or live-in 24-hour services that social services districts would authorize pursuant to the proposed regulations. The Department does not anticipate that costs associated with the proposed regulations would be significant. To a large extent, the proposed regulations merely clarify the Department’s long-standing policies and would thus be unlikely to increase State Medicaid costs. In addition, the proposed regulations also provide that personal care services shall not be authorized to the extent that a Medicaid recipient’s need for assistance can be safely and cost-effectively met by adaptive or specialized medical equipment or supplies or by the voluntary contributions of informal caregivers or formal services.

Costs to Local Government:

The regulation would not require social services districts to incur new costs. State law limits the amount that districts must pay for Medicaid services provided to district recipients.

Costs to the Department of Health:

There will be no additional costs to the Department.

Local Government Mandates:

The proposed regulations require that social services districts refer continuous personal care services and CDPAP cases to the local professional director or designee for review and final determination. In addition, districts must also refer cases in which live-in 24-hour care is indicated. The proposed regulations also require local professional directors to consider additional factors, which would be set forth in the nursing assessment, when reviewing cases in which split-shift or live-in 24-hour services are indicated.

Paperwork:

Social services districts currently complete or obtain nursing assessments for personal care services and CDPAP applicants and recipients. The proposed regulations require that the nursing assessment consider whether adaptive or specialized equipment or supplies could safely and cost-effectively meet the patient’s need for assistance. The proposed regulations also specify additional factors that nursing assessments must include when split-shift and live-in 24-hour services are indicated.

Duplication:

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

Alternatives:

There is no alternative to the proposed regulations that conform to State law by capping authorizations for nutritional and environmental support functions to eight hours per week. With respect to the remaining proposed regulations, which revise the authorization criteria for continuous and live-in cases, there is no viable alternative. The proposed regulations must be consistent with the principles articulated in the Strouchler preliminary injunction decision and the Department’s GIS 12 MA/026. No significant alternatives were thus considered.

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 limit authorizations of nutritional and environmental support functions to no more than eight hours per week for individuals who need only that level of assistance. This primarily affects licensed home care services agencies that provide only housekeeping (“Level I”) personal care services. Most recipients of Level I personal care services live in New York City. There are currently approximately nine entities that provide only Level I services in New York City.

The proposed regulations may also affect fiscal intermediaries that contract with social services districts for the provision of consumer directed personal assistance program (“CDPAP”) services to Medicaid recipients. Fiscal intermediaries are typically non-profit entities such as independent living centers but may also include licensed home care services agencies. There are approximately 46 fiscal intermediaries. If these entities received Medicaid payment in the past for services provided to CDPAP participants who needed assistance only with nutritional and environmental support functions, these entities may have experienced a slight decrease in reimbursable service hours. This is a consequence, however, of the 2011 amendment to Social Services Law § 365-a(2)(e)(iv) and not of the proposed regulations.

The proposed regulations that would establish revised eligibility criteria for continuous services for 16 or more hours (i.e. “split-shift” services) and live-in 24-hour services would primarily affect social services districts, which assess Medicaid applicants and recipients for personal care services and the CDPAP. There are 62 counties in New York State, but only 58 social services districts. The City of New York comprises five counties but is one social services district. Most split-shift cases and live-in 24-hour services cases reside in New York City.

Compliance Requirements:

The proposed regulations do not impose compliance requirements on licensed home care services agencies that provide personal care services to Medicaid recipients or on fiscal intermediaries that contract with social services districts for the provision of CDPAP services to Medicaid recipients.

Social services districts currently assess whether Medicaid recipients are eligible for personal care services and the CDPAP. The nursing assessments that districts currently complete or obtain would be required to evaluate certain additional factors, including whether adaptive or specialized equipment or supplies would be safe and cost-effective and factors relevant to whether continuous or live-in 24-hour care should be authorized. In addition, continuous personal care and CDPAP cases, as well as live-in 24-hour cases, would be required to be referred to the local professional director or designee for review and final determination of the level of care to be authorized.

Professional Services:

No new or additional professional services are required in order to comply with the proposed regulations.

Compliance Costs:

No capital costs would be imposed as a result of the proposed regulations. Nor would there be annual costs of compliance.

Economic and Technological Feasibility:

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

Minimizing Adverse Impact:

The proposed regulations should not have an adverse economic impact on social services districts. Districts currently assess Medicaid recipients to determine whether they are eligible for personal care services or the CDPAP. Districts have long been required to refer certain cases to the local professional director or designee for final determination. Pursuant to the proposed regulations, districts would refer additional cases for such review and determination.

Small Business and Local Government Participation:

The Department solicited comments on the proposed regulations from the New York City Human Resources Administration (“HRA”), which administers the personal care services program and the CDPAP for New York City Medicaid recipients who are not enrolled in a managed care or managed long term care plan. Most of the State’s personal care services and CDPAP recipients reside in New York City. The Department revised the proposed regulations based on HRA’s comments.

Cure Period:

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

Rural Area Flexibility Analysis

Types and Estimated Numbers of Rural Areas:

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

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

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

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

Albany	Erie	Oneida
Broome	Monroe	Onondaga
Dutchess	Niagara	Orange

Reporting, Recordkeeping and Other Compliance Requirements and Professional Services:

All social services districts, including county social services districts in rural counties, would be required to refer additional cases to their local professional directors or designees. The proposed regulations require that such referrals be made for recipients who may be appropriate for continuous services for 16 or more hours (i.e. “split-shift” services) as well as for recipients who may be appropriate for live-in 24-hour services. The regulations also specify additional documentation requirements for the nursing assessments that districts currently complete or obtain for personal care services and CDPAP applicants and recipients.

Costs:

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

Minimizing Adverse Impact:

The proposed regulations would have minimal impact on rural areas. Most split-shift and live-in 24-hour care cases occur not in rural areas but in New York City.

Rural Area Participation:

The Department did not seek rural area participation with regard to the proposed regulations. With regard to that portion of the proposed regulations that caps weekly authorizations to no more than eight hours for Medicaid recipients who need assistance only with nutritional and environmental support functions, the proposed regulations merely conform to State law. With regard to that portion of the proposed regulations that revises the assessment and authorization requirements for split-shift and live-in 24-hour services, the proposed regulations primarily affect urban areas, particularly New York City, because they, not rural areas, have the greatest number of split-shift and live-in cases. In addition, this portion of the proposed regulations is intended to conform to standards articulated in the Strouchler litigation, to which the New York City Human Resources Administration was a defendant.

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.