2023 New York Laws › SOS - Social Services › Article 5 - Assistance and Care › Title 11 - Medical Assistance for Needy Persons › 365-F - Consumer Directed Personal Assistance Program.

§ 365-f. Consumer directed personal assistance program. 1. Purpose and
intent. The consumer directed personal assistance program is intended to
permit  chronically ill and/or physically disabled individuals receiving
home  care  services  under  the  medical  assistance  program   greater
flexibility  and  freedom  of  choice  in  obtaining  such services. The
department shall regularly monitor district participation in the program
by  reviewing  the  implementation  plans  submitted  pursuant  to  this
section.  The  department  shall  provide  guidance  to the districts to
improve compliance with implementation  plans  and  promote  consistency
among   counties   regarding   approved  service  levels  based  on  the
assessments required by this section. In addition, the department  shall
provide  technical  assistance  and  such  other  assistance  as  may be
necessary to assist such districts in assuring access to the program for
eligible individuals.
2. Eligibility.  All eligible individuals receiving  home  care  shall
have  the  opportunity to apply for participation in the program no less
than  annually.  Each   social   services   district   shall   file   an
implementation  plan  with the commissioner of the department of health,
which shall be updated annually. Such  updates  shall  be  submitted  no
later than November thirtieth of each year. Beginning on June thirtieth,
two  thousand  nine,  the plans and updates submitted by districts shall
require the approval  of  the  department.  Implementation  plans  shall
include  district enrollment targets, describe methods for the provision
of  notice  and  assistance  to  interested  individuals  eligible   for
enrollment  in  the program, and shall contain such other information as
shall be required by  the  department.  An  "eligible  individual",  for
purposes of this section is a person who:
(a)  is  eligible  for  long  term  care  and  services  provided by a
certified home health agency, long term home health care program or AIDS
home care program authorized  pursuant  to  article  thirty-six  of  the
public  health  law,  or is eligible for personal care services provided
pursuant to this article, and who with the provision of such services is
capable of safely remaining in the  community  in  accordance  with  the
standards  set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and
consider whether an individual is capable of  safely  remaining  in  the
community;
(b) is eligible for medical assistance;
(c)  has  been determined by the social services district, pursuant to
an assessment of the person's appropriateness for the program, conducted
with an appropriate long term home health care program, a certified home
health agency, or an AIDS home care program or pursuant to the  personal
care  program,  as  being  in need of home care services or private duty
nursing and  as  needing  at  least  limited  assistance  with  physical
maneuvering  with  more  than  two  activities  of  daily living, or for
persons with a dementia or Alzheimer's diagnosis, as  needing  at  least
supervision  with  more than one activity of daily living, provided that
the provisions related to activities of daily living in  this  paragraph
shall  only  apply  to  persons  who  initially seek eligibility for the
program on or after October first, two thousand twenty, and who is  able
and  willing  or  has  a  designated  representative,  including a legal
guardian able and willing to make  informed  choices,  or  a  designated
relative  or  other  adult  who  is able and willing to assist in making
informed choices, as to the type and quality of services, including  but
not   limited   to   such  services  as  nursing  care,  personal  care,
transportation and respite services; and
(d)  meets  such  other  criteria,  as  may  be  established  by   the
commissioner,   which   are   necessary  to  effectively  implement  the
objectives of this section.
3. Division of responsibilities. Eligible  individuals  who  elect  to
participate  in the program assume the responsibility for services under
such program as mutually  agreed  to  by  the  eligible  individual  and
provider   and  as  documented  in  the  eligible  individual's  record,
including,  but not limited to, recruiting, hiring and supervising their
personal  assistants.  For  the  purposes  of  this  section,   personal
assistant  shall  mean  an  adult  who has obtained an individual unique
identifier from the  state  by  or  before  a  date  determined  by  the
commissioner  of  health  in  consultation  with  the Medicaid inspector
general, and provides  services  under  this  section  to  the  eligible
individual  under the eligible individual's instruction, supervision and
direction or under the instruction, supervision  and  direction  of  the
eligible  individual's designated representative, provided that a person
legally responsible for an eligible individual's care  and  support,  an
eligible individual's spouse or designated representative may not be the
personal  assistant  for  the  eligible  individual; however, a personal
assistant  may  include  any  other  adult  relative  of  the   eligible
individual,  provided,  however,  that  the  program determines that the
services provided by such relative are consistent with  an  individual's
plan  of  care  and  that  the aggregate cost for such services does not
exceed the  aggregate  costs  for  equivalent  services  provided  by  a
non-relative  personal  assistant. Any personal information submitted to
obtain such  unique  identifier  shall  be  maintained  as  confidential
pursuant  to  article  six-A of the public officers law ("New York state
privacy  protection  law").  Such  individuals  shall  be  assisted   as
appropriate with service coverage, supervision, advocacy and management.
Providers shall not be liable for fulfillment of responsibilities agreed
to  be undertaken by the eligible individual. This subdivision, however,
shall not diminish the participating provider's liability for failure to
exercise reasonable care in properly carrying out  its  responsibilities
under  this  program,  which  shall include monitoring such individual's
continuing ability to fulfill those responsibilities documented  in  his
or her records. Failure of the individual to carry out his or her agreed
to  responsibilities  may be considered in determining such individual's
continued appropriateness for the program.
4-a. Fiscal intermediary  services.  (a)  For  the  purposes  of  this
section:
(i)  "Statewide  fiscal  intermediary"  means  an entity that provides
fiscal intermediary services and  has  a  contract  for  providing  such
services  with  the  department  of  health  and is selected through the
procurement process described in paragraph (b) of this subdivision.
(ii)  Fiscal  intermediary  services  shall  include   the   following
services,  performed  on  behalf  of  the  consumer  to  facilitate  the
consumer's role as the employer:
(A)  wage  and  benefit  processing  for  consumer  directed  personal
assistants;
(B) processing all income tax and other required wage withholdings;
(C)  complying with workers' compensation, disability and unemployment
requirements;
(D) maintaining personnel records for each consumer directed  personal
assistant,  including  time  records  and other documentation needed for
wages and benefit processing and a copy  of  the  medical  documentation
required pursuant to regulations established by the commissioner;
(E) ensuring that the health status of each consumer directed personal
assistant  is assessed prior to service delivery pursuant to regulations
issued by the commissioner;
(F) maintaining records of service authorizations or reauthorizations;
(G) monitoring  the  consumer's  or,  if  applicable,  the  designated
representative's   continuing   ability   to   fulfill   the  consumer's
responsibilities  under  the  program   and   promptly   notifying   the
authorizing  entity  of  any circumstance that may affect the consumer's
or,  if  applicable,  the designated representative's ability to fulfill
such responsibilities;
(H)  complying  with  regulations  established  by  the   commissioner
specifying  the  responsibilities  of  fiscal  intermediaries  providing
services under this title;
(I) entering into a department approved  memorandum  of  understanding
with  the  consumer  that  describes the parties' responsibilities under
this program; and
(J) other related responsibilities which may include, as determined by
the  commissioner,  assisting  consumers  to  perform   the   consumers'
responsibilities  under  this  section  and  department regulations in a
manner that does not infringe upon the consumer's  responsibilities  and
self-direction.
(ii-a)  The commissioner shall require any managed care plans, managed
long-term  care  plans,  local  social  service  districts,  and   other
appropriate   long-term  service  programs  offering  consumer  directed
personal assistance services  to  contract  with  the  statewide  fiscal
intermediary  set forth in subparagraph (i) of this paragraph to provide
all fiscal intermediary services to consumers.
(ii-b)  The  statewide  fiscal  intermediary  shall   subcontract   to
facilitate  the  delivery  of  fiscal intermediary services to an entity
that is a service  center  for  independent  living  under  section  one
thousand  one  hundred  twenty-one  of  the  education law that has been
providing fiscal intermediary services since January first, two thousand
twenty-four or earlier. The statewide fiscal intermediary shall  further
subcontract  to  facilitate the delivery of fiscal intermediary services
with at least one entity per rate  setting  region  that  has  a  proven
record  of  delivering services to individuals with disabilities and the
senior population, and has been providing fiscal  intermediary  services
since   January   first,   two   thousand  twelve;  provided  that  such
subcontractor  shall  be  required  to  provide  any  delegated   fiscal
intermediary  services  with cultural and linguistic competency specific
to the population of consumers and those of the available workforce, and
shall  comply  with  the  requirements  for  registration  as  a  fiscal
intermediary  set  forth  in subdivision four-a-one of this section. For
purposes of this section, "delegated fiscal intermediary  services"  are
defined  as  fiscal  intermediary  services as set forth in subparagraph
(ii) of paragraph (a) of this  subdivision  that  the  statewide  fiscal
intermediary  includes in a subcontract and which shall include services
designed to meet the needs  of  consumers  of  the  program,  which  may
include  assisting consumers with navigation of the program by providing
individual consumer assistance and  support  as  needed,  consumer  peer
support,  and  education and training to consumers on their duties under
the program.
(ii-c) The statewide fiscal  intermediary  shall  be  responsible  for
payment  to  subcontractors  for delegated fiscal intermediary services.
The payment shall not require a certification  by  the  commissioner  if
payments  are  reasonably  related to the costs of efficient delivery of
such services.
(iii) Fiscal  intermediaries  are  not  responsible  for,  and  fiscal
intermediary   services   shall   not   include,   fulfillment   of  the
responsibilities of the  consumer  or,  if  applicable,  the  consumer's
designated  representative  as established by the commissioner. A fiscal
intermediary's  responsibilities  shall  not  include,  and   a   fiscal

intermediary  shall  not  engage in: managing the plan of care including
recruiting and hiring a sufficient number of individuals  who  meet  the
definition  of  consumer  directed  personal  assistant, as such term is
defined  by  the  commissioner,  to provide authorized services that are
included on the consumer's  plan  of  care;  training,  supervising  and
scheduling  each  consumer  directed personal assistant; terminating the
consumer directed personal assistant's employment; or assuring that each
consumer directed personal assistant competently and safely performs the
personal care services, home health aide services  and  skilled  nursing
tasks  that  are  included  on  the  consumer's  plan  of care. A fiscal
intermediary shall exercise reasonable care in properly carrying out its
responsibilities under the program.
(b) Notwithstanding section  one  hundred  sixty-three  of  the  state
finance  law,  section  one  hundred twelve of the state finance law, or
section one hundred  forty-two  of  the  economic  development  law  the
commissioner  shall enter into a contract under this subdivision with an
eligible contractor that submits an  offer  for  a  contract,  provided,
however, that:
(i) the department shall post on its website:
(A)  a  description  of  the  proposed  statewide  fiscal intermediary
services to be provided pursuant to a contract in accordance  with  this
subdivision;
(B)  the  criteria for selection of the statewide fiscal intermediary,
which shall include at a minimum that the eligible contractor is capable
of performing statewide fiscal intermediary services  with  demonstrated
cultural  and  language  competencies  specific  to  the  population  of
consumers and those of the available workforce, has  experience  serving
individuals  with  disabilities,  and  as  of  April first, two thousand
twenty-four  is  providing  services  as  a  fiscal  intermediary  on  a
statewide basis with at least one other state;
(C)  the  manner  by  which  prospective  contractors  may  seek  such
selection, which may include submission by electronic means;
(ii) all offers that are received from prospective  contractors  in  a
timely  fashion  and  that  meet the criteria set forth in clause (B) of
subparagraph  (i)  of  this  paragraph  shall   be   reviewed   by   the
commissioner; and
(iii)  the  commissioner  shall  award such contract to the contractor
that meets the criteria for selection and  offers  the  best  value  for
providing  the  services required pursuant to this section and the needs
of consumers.
(c) (i) The commissioner shall require a fiscal intermediary to report
annually on  the  direct  care  and  administrative  costs  of  personal
assistance  services  as  accounted  for by the fiscal intermediary. The
department shall specify the format of such reports, determine the  type
and amount of information to be submitted, and require the submission of
supporting  documentation,  provided, however, that the department shall
provide no less than ninety calendar days' notice  before  such  reports
are due.
(ii)  If the department determines that the cost report submitted by a
provider is inaccurate or incomplete, the department  shall  notify  the
provider  in  writing  and  advise  the  provider  of  the correction or
additional information that the provider must submit. The provider  must
submit  the  corrected  or additional information within thirty calendar
days from the date the provider receives the notice.
(iii) The department shall  grant  a  provider  an  additional  thirty
calendar  days  to  submit  the  original,  corrected or additional cost
report when the provider, prior to the date the report is due, submits a
written request to the department for an extension  and  establishes  to

the department's satisfaction that the provider cannot submit the report
by the date due for reasons beyond the provider's control.
(iv) All reports shall be certified by the owner, administrator, chief
executive  officer,  or public official responsible for the operation of
the provider. The cost report form shall include a  certification  form,
which shall specify who must certify the report.
4-a-1.  (a) Fiscal intermediary registration. Except for the statewide
fiscal intermediary and its  subcontractors,  as  of  April  first,  two
thousand  twenty-five,  no  entity  shall  provide,  directly or through
contract,  fiscal  intermediary  services.  All  subcontractors  of  the
statewide fiscal intermediary, shall register with the department within
thirty days of being selected as a subcontractor.
(b) In selecting its subcontractors, the statewide fiscal intermediary
shall  consider  demonstrated compliance with all applicable federal and
state laws and regulations, including but not limited to, marketing  and
labor  practices,  cost  reporting,  and  electronic  visit verification
requirements.
4-b. Actions involving the registration of a fiscal intermediary.
(a) A fiscal intermediary's registration may  be  revoked,  suspended,
limited,  or  annulled  by  the  commissioner  upon thirty days' written
notice to the fiscal intermediary, if the commissioner  finds  that  the
fiscal  intermediary  has  failed  to comply with the provisions of this
section or regulations promulgated hereunder.
(b) The commissioner may  issue  orders  and  take  other  actions  as
necessary  and  appropriate  to  prohibit  and  prevent the provision of
fiscal intermediary services by an unregistered entity.
(c) All orders or  determinations  under  this  subdivision  shall  be
subject  to  review  as  provided  in article seventy-eight of the civil
practice law and rules.
4-c. The commissioner shall convene and chair a stakeholder  workgroup
pertaining  to  fiscal intermediary services and the needs of consumers.
The workgroup shall consist of, at a minimum, representatives of service
centers  for  independent  living;  statewide  associations  of   fiscal
intermediaries;  representatives  of managed care entities under article
forty-four of the public health law and local social service  districts;
consumers; and representatives of advocacy groups representing consumers
of  services  under  this section. The workgroup shall be established no
later than May fifteenth, two thousand  nineteen.  The  workgroup  shall
identify and develop best practices pertaining to the delivery of fiscal
intermediary services; inform the criteria for use by the department for
the  selection  of  entities  under  subdivision four-a of this section;
identify whether services differ for certain consumers  and  under  what
circumstances; inform criteria in relation to the development of quality
reporting   requirements;  and  work  with  the  department  to  develop
transition plans for consumers that may need to  transition  to  another
fiscal intermediary.
4-d.  Fiscal  intermediaries  ceasing  operation.  (a)  Where a fiscal
intermediary is ceasing operation or will no longer serve the consumer's
area, the fiscal intermediary shall:
(i) deliver written notice forty-five calendar days in advance to  the
affected  consumers,  consumer representatives, personal assistants, the
department, and any local social  services  districts  or  managed  care
plans with which the fiscal intermediary contracts. Within five business
days  of  receipt  of  the notice, the local social services district or
managed care plan shall acknowledge the notice and provide the  affected
consumers  with  a  list of other fiscal intermediaries operating in the
same county or managed care plan network as appropriate;
(ii) not take any action that would prevent a personal assistant  from
moving  to  a  new  fiscal  intermediary  of  the consumer's choice, nor
require the consumer or the personal assistant to switch to  a  personal
care or home health care program not under this section; and
(iii) upon request and consent, promptly transfer all records relating
to  the  individual's  health  and  care  authorizations,  and personnel
documents to the fiscal intermediary or personal  care  or  home  health
care  provider  chosen  by  the  consumer  and  assume all liability for
omissions or errors in such records.
(b) Where a consumer is electing to transfer his or her services to  a
new  fiscal intermediary or a personal care or home health care provider
by the consumer's independent  choice,  the  fiscal  intermediary  being
discontinued shall comply with subparagraphs (ii) and (iii) of paragraph
(a) of this subdivision.
(c)  Where  a  fiscal  intermediary is suspending or ceasing operation
pursuant to an order under subdivision four-b of this  section,  or  has
failed  to submit an offer for a contract, or has been denied a contract
under this section, all the provisions of this subdivision  shall  apply
except  subparagraph (i) of paragraph (a) of this subdivision, notice of
which to all parties shall be provided by the department as appropriate.
(e) The local social  services  district  or  managed  care  plan,  as
appropriate,  shall supervise the transition of services and transfer of
records and maintain provision of services by the personal  assistant(s)
chosen by the individual.
(f)  Any  transfer under this subdivision shall not diminish any of an
individual's rights relating to continuity of care,  utilization  review
or fair hearing appeals and aid continuing.
5. Waivers, regulation and effectiveness.
(a)  The  commissioner may, subject to the approval of the director of
the budget, file for such federal waivers  as  may  be  needed  for  the
implementation of the program.
(b)  Notwithstanding  any  other provision of law, the commissioner is
authorized to waive any provision of section three hundred sixty-seven-b
of  this  title  related  to  payment  and  may  promulgate  regulations
necessary  to  carry out the objectives of the program including minimum
safety, and health and immunization criteria and  training  requirements
for  personal assistants, and which describe the responsibilities of the
eligible individuals in  arranging  and  paying  for  services  and  the
protections  assured  such  individuals  if they are unable or no longer
desire to continue in the program, the fiscal intermediary  registration
process,  standards, and time frames, and those regulations necessary to
ensure adequate access to services.
6. Notwithstanding any inconsistent provision of this section  or  any
other  contrary  provision  of  law,  managed  care programs established
pursuant to section three hundred sixty-four-j of this title and managed
long term care plans and  other  care  coordination  models  established
pursuant  to  section  four  thousand four hundred three-f of the public
health law shall offer consumer directed personal assistance programs to
enrollees.
7. This section shall be effective if, to the extent that, and as long
as,  federal  financial  participation  is  available  for  expenditures
incurred under this section.
8. Subject to the availability of federal financial participation, the
provisions   of   this  section  governing  consumer  directed  personal
assistance services shall also apply to such services when offered under
the home and community-based attendant services and supports state  plan
option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).
9.  Notwithstanding  any  contrary provision of law and subject to the
availability of federal financial  participation,  for  periods  on  and
after April first, two thousand fourteen, the commissioner is authorized
to   make  temporary  periodic  lump-sum  Medicaid  payments  to  fiscal
intermediaries   principally  engaged  in  providing  consumer  directed
personal assistance services to Medicaid patients,  in  accordance  with
the following:
(a) eligible fiscal intermediaries shall include:
(i)  providers  undergoing  closure  or  substantial  reduction in the
volume of care;
(ii) providers impacted by the closure of other health care providers;
(iii) providers subject to mergers,  acquisitions,  consolidations  or
restructuring;
(iv)  providers  impacted by the merger, acquisition, consolidation or
restructuring of other health care providers;
(v) providers seeking to ensure that access to care is  maintained  or
increased; or
(vi)  on  or  after  January  first,  two  thousand fifteen, providers
impacted by changes to the Fair Labor Standards Act  requiring  overtime
pay for personal assistants working in excess of forty hours per week.
(b)  providers  seeking Medicaid payments under this subdivision shall
demonstrate through submission of a written proposal to the commissioner
that the additional resources provided by such  Medicaid  payments  will
achieve one or more of the following:
(i) protect or enhance access to care;
(ii) protect or enhance quality of care;
(iii)  improve  the  cost effectiveness of the delivery of health care
services; or
(iv) otherwise protect or enhance the health care delivery system,  as
determined by the commissioner.
(c)(i) Such written proposal shall be submitted to the commissioner at
least  sixty  days  prior to the requested commencement of such Medicaid
payments and shall include a proposed budget to achieve the goals of the
proposal. Any Medicaid payments  issued  pursuant  to  this  subdivision
shall  be  made  over  a  specified period of time, as determined by the
commissioner, of up  to  three  years.  At  the  end  of  the  specified
time-frame such payments shall cease. The commissioner may establish, as
a condition of receiving such Medicaid payments, benchmarks and goals to
be  achieved  in  conformity  with  the  provider's  written proposal as
approved by the commissioner and may  also  require  that  the  provider
submit   such  periodic  reports  concerning  the  achievement  of  such
benchmarks and goals as the commissioner  deems  necessary.  Failure  to
achieve  satisfactory  progress,  as  determined by the commissioner, in
accomplishing such benchmarks and goals shall be a basis for ending  the
provider's   Medicaid  payments  prior  to  the  end  of  the  specified
timeframe.
(ii) The commissioner may require that applications submitted pursuant
to this subdivision be submitted in response to and in accordance with a
request for applications or  a  request  for  proposals  issued  by  the
commissioner.