AGE-43-10-00017-A Expanded In-Home Services for the Elderly Program (EISEP) Consumer Directed In-Home Services

9/7/11 N.Y. St. Reg. AGE-43-10-00017-A

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 36

September 07, 2011

RULE MAKING ACTIVITIES

OFFICE FOR THE AGING

NOTICE OF ADOPTION

 

I.D No. AGE-43-10-00017-A

Filing No. 753

Filing Date. Aug. 17, 2011

Effective Date. Sept. 07, 2011

Expanded In-Home Services for the Elderly Program (EISEP) Consumer Directed In-Home Services

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

Action taken:

Amendment of sections 6654.15, 6654.16 and 6654.17 of Title 9 NYCRR.

Statutory authority:

Elder Law, sections 201(3) and 214

Subject:

Expanded In-Home Services for the Elderly Program (EISEP) Consumer Directed In-Home Services.

Purpose:

The purpose of the proposed rule is to incorporate the Consumer Directed In-Home Services delivery model into EISEP.

Substance of final rule:

The purpose of this rule is to allow consumers the opportunity to manage their own in-home services under the Expanded In-home Service for the Elderly Program (EISEP). The proposed amendments to 9 NYCRR sections 6654.15, 6654.16 and 6654.17 incorporate a consumer directed in-home services delivery model into EISEP.

The amendments to § 6654.15 add consumer directed in-home services eligibility criteria and definitions. Specifically, the amendments address the requirements an individual or their representative must meet in order to participate in the consumer directed in-home services delivery model. In addition, several terms have been defined in order to provide the regulated parties with clear direction as to what is meant when each of the defined terms are used in the regulations. Some of these terms are new to EISEP (e.g., Consumer, Consumer Representative, Consumer Directed In-home Services and Fiscal Intermediary) and others are not, though they had not been defined previously (e.g., In-home Services, In-home Services Agency and In-home Services Worker).

Section 6654.16 of the regulations was amended so that the consumer directed in-home services delivery model could be incorporated into the EISEP regulations. Specifically, NYSOFA clearly delineated those tasks that are the responsibility of the case manager in traditional EISEP but which is the responsibility of the consumer or the consumer representative under consumer directed in-home services. This section of the regulations also articulates that while case managers will work with and assist consumers and/or consumer representatives who receive services under the consumer directed in-home services model, responsibility for the interviewing, selecting, scheduling, training, supervising and dismissing the in-home services worker lays with the consumer or the consumer representative and not the case manager. NYSOFA also made several technical amendments in this section that brought the regulations up to date with current practice.

NYSOFA also amended § 6654.17 of the regulations to incorporate the consumer directed in-home services model into EISEP. Again, the major focus of the changes in this section of the regulations was to identify the tasks and responsibilities of the consumer and/or consumer representative under consumer direction, including those that are the responsibility of the agency that is providing home care in the traditional services delivery model. NYSOFA also clearly establishes training responsibilities for all parties involved in consumer directed in-home services. The amendments to this section also establish the role and responsibilities of the fiscal intermediary, an entity responsible for many of the administrative tasks including financial transactions. NYSOFA clarified when a criminal background check is required and the type of criminal background check that is required. NYSOFA also made some technical amendments to this section to bring the regulations in line with current practice and enhance the consistency with the New York State Department of Health's (DOH) regulations for the Medicaid funded Personal Care Program and regulations for licensed home care services agencies were also updated to reflect current practice. Among the amendments in this category are the changes to the guidelines regarding the qualifications needed to be a supervisor under EISEP. Section 6654.17 provides guidance as to the type and content of records that must be maintained by the fiscal intermediary that is providing services in a consumer directed program. The amendments also incorporate by reference the DOH's regulations regarding criminal background checks, health status and training of in-home services workers. NYSOFA's regulations have always mirrored the DOH's requirements regarding these three subjects and incorporating the DOH's requirements into the EISEP regulations by reference will facilitate regulatory compliance for regulated parties.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 6654.15(7)(iv), 6654.17(q)(2), (w)(1), (1) and 6655.17(t)(1).

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

Stephen Syzdek, New York State Office for the Aging, Two Empire State Plaza, Albany, NY 12223-1251, [phone], email: [e-mail]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

Although changes were made to the proposed 9 NYCRR 6654.15 and 6654.17, they do not necessitate changes to the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

The proposed rule was published in the State Register on October 27, 2010, and the 45-day public comment period expired on December 13, 2010. The Office received comments from five (5) entities.

Case Management Regulations

One commentator believes that the consumer directed in-home services model places greater demands on case managers and increases liability for case management agencies.

Response: NYSOFA acknowledges that, like with any new service delivery model, some adjustments will have to be made by the staffs of Area Agencies on Aging and service providers. However, NYSOFA does not believe that it will place undo demands on case managers and their time. NYSOFA also does not believe that the consumer directed in-home services model subjects case management agencies to any greater liability than traditional models of care. In this model, the consumer is in control of his or her own care and assumes the responsibility for making decisions about their care and liability associated with these decisions. NYSOFA does expect that case management agencies will continue to exercise the same diligence when performing their duties, but does not expect them to step into the place of the consumer or the consumer representative. In fact, the regulations prohibit them from doing so.

One commentator noted that the care plan section (in the case management regulations) should state who can develop a care plan. If it is a LHCSA, we need to address the different care plan requirements under EISEP and SDOH requirements.

Response: This subsection of the regulation has been in effect since EISEP began in 1987 and it has always been the case manager who completes the care plan. We believe this is clear if the care plan subsection is read in the context of the regulations that appear earlier in the section.

In-home Services Regulations

One commentator suggested that NYSOFA mirror the fiscal intermediary's responsibilities in the consumer directed in-home services model after the responsibilities set forth for the Consumer Directed Personal Assistance Program administered by the Department of Health.

Response: While the two programs are similar, they are not the same, and therefore the responsibilities for the fiscal intermediary are not necessarily identical. However, NYSOFA did clarify the regulations in regard to the fiscal intermediary's role and responsibilities in section 6654.17(q), (w) and (x).

One commentator was concerned that the EISEP regulations place clinical and other non-fiscal/employment related responsibilities on the fiscal intermediary.

Response: NYSOFA believes that the fiscal intermediary's role in the consumer directed in-home services model is clearly defined and does not put the fiscal intermediary in the position of stepping into the role of the consumer, consumer representative or case manager.

One commentator noted that some of its members (of an association) believed it was inappropriate for a fiscal intermediary to be responsible for billing consumers who are required to pay a cost share.

Response: We disagree and believe that this decision should be made on the local level by the Area Agency on Aging and the fiscal intermediary.

One commentator stated that the fiscal intermediary should not have any role in any training other than related to its role as a fiscal intermediary and the role of the consumer and the in-home services worker in relation to the fiscal intermediary. The commentator notes that language stating the fiscal intermediary may have a role in informing the consumer of the availability of other training is inappropriate. This commentator also suggests that the fiscal intermediary not be required to document any training requests for the in-home services worker it receives from the consumer.

Response: We believe, at a minimum, the fiscal intermediary should be required to provide training to both the consumer and the in-home services worker regarding its role as a fiscal intermediary and their role and responsibilities in relation to the fiscal intermediary. Beyond this, we believe it is a local decision to be made between the Area Agency on Aging and the fiscal intermediary based on local preferences, expertise and experience. As a result, we have written the regulations to reflect this flexibility.

Also, we require that training requests be a part of the consumer record and as such, will be reviewed by AAA program staff and thus help to ensure that such requests can be considered as possible program implementation, operation or design issues during program monitoring and review.

One commentator was concerned about in-home workers having to be trained on handling emergency situations and cost of that training.

Response: Under consumer direction, it is incumbent upon the consumer and not the Area Agency on Aging to direct and train the worker. As a result, the regulations place no additional requirements on Area Agencies on Aging regarding the training of in-home workers with regard to responding to emergency situations.

One commentator was concerned that licensed home care agencies (LHCSA's) are subjected to different requirements regarding criminal history checks than unlicensed providers of in-home services.

Response: The differences in the requirements are a result of the fact that unlicensed providers cannot gain access to the criminal history check system maintained by the New York State Department of Health. These differences have been present since the current requirements for criminal background checks went into effect in 2006. In addition, the commentator believes that the regulations are unclear as to who bears the responsibility for carrying out certain functions as they relate to criminal history checks. The regulations were purposely written so that many of the decisions regarding who will notify the consumer about the in-home workers criminal history and informing the consumer about how a criminal history check is obtained will be decided at the local level by the Area Agency on Aging and the entities with which they contract.

One commentator thought that there were no training requirements for the in-home services worker under consumer direction and thus consumer direction did not recognize the skills that home care workers bring to the care they provide and ". . . basically says that anyone can do this". The commentator goes on to say that it seems that our regulations appear to dismiss training as not needed.

Response: We disagree. There are training requirements for in-home workers under consumer direction. In consumer directed in-home services, the training requirements are specific to each consumer as it is the consumer who is responsible for determining the training that is needed by their in-home services worker and to provide or arrange for such training to take place. In addition, the consumer also is responsible for specifying the qualifications for their in-home services worker. Thus he/she could include certain training or educational requirements in the job qualifications and only select a worker that meets those requirements.

One commentator pointed out the discrepancy between these regulations and the State Department of Health's (SDOH) in regards to who may provide supervision to home care workers. It was suggested that the two state agencies decide which regulations apply for EISEP.

Response: This difference in the regulations has been in effect since EISEP began in 1987. It was recognized that Area Agencies on Aging may subcontract with an entity other than a licensed home care services agency (LHCSA) for some of its services and these agencies would not be regulated by SDOH, might not have nurses on staff as do LHCSA's and the services they would be providing would not require that the workers be supervised by a nurse. Where an Area Agency on Aging subcontracts with a LHCSA to provide home care services it is recognized that SDOH requirements prevail.

One commentator noted that the regulations permit assistance with medications and also that someone other than a nurse can provide supervision. It was recommended that in these situations such assistance should be provided under the supervision of a nurse and the nursing services should be reimbursed under EISEP.

Response: As a point of clarification, the regulations for personal care level II permit the worker to assist the client with the self administration of medication. The EISEP regulations regarding who may provide supervision have been in effect since EISEP began in 1987. In reality, very few personal care workers have been supervised by someone other than a nurse. The EISEP regulations provide for the administration of personal care level I and personal care level II tasks under the supervision of other qualified individuals. We built in this flexibility in recognition that there are situations where individuals with other backgrounds and credentials can appropriately and adequately provide the supervision. EISEP can pay for supervision provided by a nurse to a home care worker.

One commentator noted that that the annual assessment of performance of work should be required under consumer directed in-home services as it is under traditional care.

Response: Since the consumer will act as the supervisor of the in-home services worker, we believe that this is a decision that should be made by the consumer.

One commentator, with regard to assisting with administration of medications by the clients, suggested that NYSOFA allow in-home workers under consumer direction to remove medication from containers and provide necessary liquids for taking the medication.

Response: The removal of medication from containers in order to assist a client with the self administration of medication in a consumer directed setting is not permitted because such action falls within the scope of the practice of nursing.

One commentator raised concerns regarding who is responsible for deciding which medications the consumer takes and ensuring that the correct medication is being taken.

Response: This is the responsibility of the consumer or someone acting in this capacity in both consumer directed care and under traditional home care.

Miscellaneous

One commentator described a situation where a person who was being served under a consumer directed program did not receive appropriate care by his "friend" and as a result his condition worsened. The commentator goes on to say "consumer direction is asking of our frail elderly - the ability to supervise an aide who is providing personal care - without a nurse supervising them. Hired "friends" may be difficult to terminate due to personal relations."

Response: Consumer directed care is not for everyone and with screening of the consumer and education for the consumer, we believe the "right" consumer and the "right" in-home services worker will participate successfully in the program. In addition, consumers receiving consumer directed in-home services will continue to receive case management. This will help to prevent situations as described above from occurring and will help to identify and address them should they occur.

One commentator raised concerns regarding the consumer directed in-home service model leaving consumers more vulnerable than the traditional in-home services model.

Response: Studies have shown that consumers are no more vulnerable under consumer directed models of care than they are under traditional models of care. In fact, some studies show that consumers who participate in consumer directed programs are less likely to be exposed to unsafe situations. NYSOFA believes that the proposed regulations provide consumers with adequate protection while maintaining the principles of consumer direction.

One commentator noted that they thought that implementation of consumer directed in-home services would divert funding from services because of the need for training and additional staff needed to interface with the fiscal intermediary.

Response: Some training will be needed. The State Office for the Aging will offer opportunities to Area Agencies on Aging for staff training on consumer direction. In addition, Area Agencies on Aging can provide additional training if they wish to do so using local resources and partnerships.

It is a local determination as to whether existing staff can be used to interface with the fiscal intermediary. While there may be some additional costs at the beginning, as one might expect when implementing something new, the expectation is that once operational, the additional costs to manage this different service delivery model will be minimal. However, the benefits will be significant, both in terms of possible lower cost for services and customer satisfaction.

One commentator suggested that the regulations require the Area Agency on Aging to review the appropriateness of the consumer representative to serve in that capacity.

Response: NYSOFA believes that this concern is adequately addressed in the regulations by giving the case manager this responsibility.