Revised Rule on Meeting Immediate Needs for Personal Care Services

Page 16 of the Aug. 5 NYS Register contains a notice of a proposed revised rule to amend Parts 363, 365 and 505.14 of Title 18 NYCRR, Immediate Needs for Personal Care Services.  The rule seeks to ensure that the immediate need for personal care services of Medicaid applicants and recipients are met on a temporary basis pending the completion of the Medicaid application.

Last year, LeadingAge New York reported on the first proposed rule as published on Page 20 of the July 16, 2014 NYS Register.

This rule stems from the findings in the case of Konstantinov v. Daines, where Justice Joan Madden, State Supreme Court, New York County, held that SSL 133 applies to personal care services and “applicants for Medicaid and recipients of Medicaid are entitled to requesting immediate, temporary personal care attendant services” pending the completion of their Medicaid eligibility. This prior version of the rule provides definitions on:

• Immediate need for personal care services;
• Immediate temporary personal care services;
• Presumptive eligibility period;
• Fair hearing and aid-continuing;
• Recoupment and reimbursement; and
• Provides the background on the process from July 10, 2010 up to another decision and ruling on March 12, 2014.

In 2014 the proposed rule would amend:

• 18 NYCRR 360-3.7 by adding a new subdivision (f), entitled presumptive eligibility for immediate temporary personal care services; and
• Repeal 18 NYCRR 505.14(b)(5)(iv), which has provided for an expedited assessment process for Medicaid recipients who have an immediate need for personal care services.

In the 2015 revised rule it would amend section 505.14(b)(5)(iv) on providing for an expedited assessment process. The revised section defines “immediate temporary personal care services”; provides the criteria for a Medicaid recipient to qualify for “immediate temporary personal care services”; defines presumptive eligibility; defines “expeditiously as possible, but no later than three business days after receipt of the physician’s order”; and outlines the fair hearing process.

The Department of Health (DOH) will be accepting comments on this proposed rule until 30 days from the Aug. 5 posting. Please submit your comments to: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, or email: regsqna@health.state.ny.us.

Contact: Cheryl Udell, cudell@leadingageny.org, 518-867-8871