Assembly Bill A7898

                                BILL NUMBER:A7898              REPLACEMENT 5/21/10

TITLE  OF BILL:   An act to amend the social services law, in relation
to defining the kind of assistance required for a recipient to  obtain
medicaid personal care services

PURPOSE  OF  BILL:    To  clarify  that personal care services include
assistance  with  health  and   safety   needs,   including   hands-on
assistance,  supervision  and cuing, to ensure safe performance of ail
activities of daily living, including instrumental activities of daily
living, for persons with physical impairments as well as persons  with
limitations in cognitive functioning.

SUMMARY  OF  PROVISIONS OF BILL:  This bill amends Social Services Law
§365-a(2)(e) to clarify the type  of  assistance  to  be  provided  by
personal  care  aides in the Medicaid program. The bill clarifies that
personal care includes hands-on assistance, supervision, and cuing, to
ensure safe performance of all activities of daily  living,  including
instrumental  activities  of  daily living, for persons with physical,
impairments or limitations in cognitive functioning.

EXISTING LAW:  The definition of personal care services in  the  state
social  services  law is general, stating that they are services of an
aide "... as determined to meet the recipient's needs  for  assistance
when prescribed by a physician ..." SSL .365- a(2)(e).

              

Other  sections  of the law and department regulations confirm that it
has long been state policy that  persons  who,  because  of  cognitive
impairments  such as Alzheimer's disease, are unable to "direct" their
own care, are eligible for Medicaid personal care services in New York
just as are persons with physical impairments, provided that a  family
member  or  other  person  directs  their  care.  SEE  Soc. Serv. L.
3654(2)(c); 18 NYCRR  §  505.14(a)(4)(ii).  The  lack  of  a  specific
reference  in  section  365-a(2)(e)  to  the  needs  of  persons  with
limitations in cognitive functioning for assistance to  protect  their
health and safety, however, has been interpreted by local districts as
well  as  the  State  Department of Health to permit districts to deny
personal care to such persons.

JUSTIFICATION:   The State Department  of  Health  and  various  local
districts  have  incorrectly  interpreted  state law to permit them to
deny personal care services needed by persons with Alzheimer's disease
and other cognitive impairments to maintain their health and safety at
home.  This is due in large part to the establishment of a new  system
for  assessing  the  amount of needed services-"Task Based Assessment"
(TBA). Since its adoption in the nineties, by New York City,  Suffolk,
Nassau,  Westchester,  and  other  counties  across the state, TBA has
sharply reduced the  amount  of  services  available  to  people  with
cognitive  impairments  by excluding "safety monitoring" from the list
of covered tasks. In some cases this has resulted in a complete denial
of Personal Care Services when the person could be  safely  maintained
at home with such services.

Although the state's exclusion of "safety monitoring" as a stand-alone
separate  personal  care task was upheld by the United States Court of
Appeals for the Second Circuit in RODRIGUEZ V. CITY OF NEW  YORK,  197
F.3d  611  (2d  Cir.  Oct. 6, 1999), the Court held that the Americans


with Disabilities Act and Medicaid law permitted but did  not  require
New  York  to  cover this task. In addition, it must be noted that the
term "safety monitoring" is not a recognized  term  in  the  field  of
rehabilitation  and assessment, and is not a separate service. Rather,
it is the type of assistance with  activities  of  daily  living  that
people  with  cognitive  impairments  need,  and  generally  refers to
monitoring and verbal "cuing" of  an  individual  who  is  cognitively
impaired,  to  prevent  unsafe  activities  such  as  using  household
appliances in a way that is unsafe, or wandering.

State law must be clarified to ensure that New York's Medicaid program
does not discriminate against persons  with  Alzheimer's  disease  and
other  cognitive  impairments,  and  that  personal  care services are
equally accessible regardless of  whether  the  individual's  need  is
caused by a cognitive impairment or a physical impairment.

To accomplish this, the amendment clarifies that the types of personal
care  assistance  to  be provided include not only hands-on assistance
but also supervision and "cuing," which  include  "contact  guarding,"
reminding  and prompting. To prevent an individual who has Alzheimer's
disease from wandering, for example, the personal care  aide  may  cue
and  supervise  her  to ambulate safely. This amendment to the statute
also brings state law in conformity with  the  policy  of  the  United
States  Center  for  Medicare and Medicaid Services (CMS), the federal
agency that regulates and oversees state  Medicaid  programs.  A  1999
amendment  to  the  definition  of "personal care services" in the CMS
State Medicaid Manual clarifies that:

An individual may be physically capable of  performing  Activities  of
Daily  Living  (ADLs)  and  Instrumental  Activities  of  Daily Living
(IADLs) but  may  have  limitations  in  performing  these  activities
because  of  a  cognitive  impairment.  Personal  care services may be
required because a cognitive impairment prevents  an  individual  from
knowing  when or how to carry out the task. For example, an individual
may no longer be able to dress without someone to cue  him"or  her  on
how  to  do  so.  In such cases, personal assistance may include cuing
along with supervision to ensure that the individual performs the task
properly."

CMS State Medicaid Manual § 4480 (Jan. 1999).

This amendment also updates the law by using the  nationally  accepted
terminology  of describing personal care tasks as "Activities of Daily
Living" (ADLs) and "Instrumental Activities of Daily Living"  (IADLs),
which  correspond  to  the  state  regulation dichotomy of Level I and
Level II personal care tasks, respectively. 18 NYCRR § 505.14(a)(6).

Denial of adequate personal care for persons with Alzheimer's  disease
and  other  types  of dementia will force them to be institutionalized
even when care in the  community  is  the  most  appropriate  setting:
Unnecessary  institutionalization is not only contrary to longstanding
state policy, see e.g. Public  Health  Law  §3600,  but  violates  the
Americans  with  Disabilities  Act as interpreted by the United States
Supreme Court in OLMSTEAD V. L.C., 527 U.S.-,144 L.  Ed.2d  540,  1999
U.S. LEXIS 4368 (June 22, 1999).

LEGISLATIVE HISTORY:


2009: A.7898/S.4446 A. Health/S. Health
2008: A.3153- A.Ways & Means
2007: A.3153- A.Social Services
2006: A.5849- A.Social Services
2005: A.5849- A.Ways & Means
2004: A.4306- A.Social Services
2003: A.4306- A.Ways & Means
2002: A.4900- A.Social Services
2001: A.4900- A.Ways & Means
2000: A.10424-Passed Assembly

FISCAL  IMPLICATIONS  FOR STATE AND LOCAL GOVERNMENTS:  Since personal
care services are, in all but a small number  of  cases,  less  costly
than  Medicaid  payments  for  nursing  home  care, this bill will not
increase state or local Medicaid expenditures.

EFFECTIVE DATE:   This act  shall  take  effect  on  the  one  hundred
twentieth  day after becoming law. However, effective immediately, the
addition,  amendment  and/or  repeal  of  any  rules  or   regulations
necessary  for  the  implementation of this amendment on its effective
date is authorized and directed to be made and completed on or  before
such effective date.