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DOH Releases Preview of Proposed Independent Assessor Regulations for Personal Care and CDPAS

The Department of Health (DOH) has provided a preview of proposed regulations to implement the changes in eligibility for personal care and Consumer Directed Personal Assistance Services (CDPAS), the assessment processes, and other initiatives required as a result of the Medicaid Redesign Team II (MRT II) process and budget legislation. The proposed regulations are expected to be published in the State Register on July 15th and subject to a 60-day public comment period. DOH expects to convene a meeting with stakeholders to solicit feedback and explore implementation. A list of the key provisions is highlighted below. Although we have pushed for a more realistic timeline for implementation of these initiatives and brought to DOH's attention all of the challenges members have raised, the Executive Branch remains committed to an Oct. 1st launch.

The following are the key elements of the proposed regulations:

  • Requires both local departments of social services (LDSSs) and Medicaid managed care organizations (MMCOs) to evaluate the cost-effectiveness of the personal care services (PCS) and CDPAS relative to other services and supports available to the individual. Services may not be provided if they are not cost-effective in comparison to other appropriate alternatives.
  • PCS must be ordered by a qualified and independent physician who is not the individual’s attending physician.
  • Eligibility for PCS and CDPAS will be based on the level of need for assistance with activities of daily living (ADLs) – individuals with dementia or Alzheimer’s must need at least supervision with more than one ADL, and all others must need at least limited assistance with physical maneuvering with more than two ADLs.
  • Supervision and cueing may be provided as a means of assisting an individual to perform nutritional and environmental support functions or personal care functions, but are not a standalone PCS.
  • Defines “self-directing consumer.”
  • Describes the main elements of the assessment process, including an independent assessment, a medical exam and physician order, an evaluation of the need and cost-effectiveness of services, the development of the plan of care, and an additional independent medical review for high needs cases.
  • Describes the independent assessment to be performed by an independent assessor, as opposed to the LDSS or MMCO.
  • Describes the independent medical exam and physician order which must be performed by medical professionals employed by, or contracted with, an entity designated by DOH. The 30-day deadline for the order to be provided after the exam has been eliminated.
  • Provides that the LDSS or MMCO remain responsible for: (a) the review of other available services and supports to determine cost-effectiveness; (b) determining frequency of nursing supervision; (c) heightened documentation requirements for 24-hour cases; and (d) the development of the plan of care. The LDSS or MMCO must review the results of the independent assessment and medical exam performed by the independent assessor and independent medical professional. Prior to authorizing more than 12 hours of services per day, the LDSS or MMCO must refer the case to the independent clinical review panel for an additional independent medical review and must consider the recommendation of the panel in its decision to authorize services.
  • Describes the independent medical review required when the LDSS or MMCO proposes to authorize more than 12 hours of services per day on average. The panel makes a recommendation concerning the reasonableness and appropriateness of the plan of care to maintain the individual’s health and safety in his or her home, identifies any other Medicaid services that may be appropriate, and includes the clinical rationale for such recommendation. The recommendation may not include specific hours of services or an alternative plan of care.
  • Prohibits the authorization of services provided through more than one fiscal intermediary per consumer.
  • Extends the maximum default authorization periods from six to 12 months.
  • Provides additional justifications for denying, reducing, or discontinuing services.
  • Removes the requirement to notify those receiving other home care services about CDPAS.
  • Requires LDSSs or MMCOs to document in the notice and plan of care the factors and clinical rationale specific to the client that influence a medical necessity determination that PCS or CDPAS should be denied, reduced, or discontinued.
  • Provides that for reassessments, a new physician order is not needed unless the order on file is more than 12 months old, or if a physician order is otherwise clinically indicated.
  • Aligns the immediate need process with the new assessment process. An individual must first provide to the LDSS a physician’s statement of need for PCS and an attestation of immediate need, before the individual is considered to have an immediate need.
  • Requires consumer-designated representatives to make themselves available to ensure that they can carry out the consumer responsibilities, and to be present at scheduled assessments or visits for non-self-directing consumers.

LeadingAge NY is convening a work group of representatives of our Managed Long Term Care (MLTC) and Program of All-Inclusive Care for the Elderly (PACE) and home care members to identify implementation concerns and propose solutions to be advanced to DOH. We are also seeking to ensure that the unique regulatory and programmatic context of PACE programs is recognized.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838