BILL NUMBER:S3173

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 bands-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 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
bands-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§365a(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.
§365-f(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 incor-
rectly 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 Service (CMS), the federal
agency that regulates and oversees state Medicaid programs. A 1999
amendment to the definition of "personal care services" in the EMS
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
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 update 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).

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Since personal care services are in all but a few 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 on or before such effective date.