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This entry was published on 2022-04-22
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SECTION 365-F
Consumer directed personal assistance program
Social Services (SOS) CHAPTER 55, ARTICLE 5, TITLE 11
§ 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) "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 paragraphs (b), (b-1), (b-2) and (b-3) of this
subdivision. Eligible applicants for contracts shall be entities that
are capable of appropriately providing fiscal intermediary services,
performing the responsibilities of a fiscal intermediary, and complying
with this section, including but not limited to entities that:

(A) are a service center for independent living under section one
thousand one hundred twenty-one of the education law; or

(B) have been established as fiscal intermediaries prior to January
first, two thousand twelve and have been continuously providing such
services for eligible individuals under this section.

(ii) Fiscal intermediary services shall include the following
services, performed on behalf of the consumer to facilitate his or her
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.

(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 any inconsistent provision of section one hundred
sixty-three of the state finance law, or section one hundred forty-two
of the economic development law the commissioner shall enter into
contracts under this subdivision with eligible contractors that submit
an offer for a contract, provided, however, that:

(i) the department shall post on its website:

(A) a description of the proposed services to be provided pursuant to
contracts in accordance with this subdivision;

(B) that the selection of contractors shall be based on criteria
reasonably related to the contractors' ability to provide fiscal
intermediary services including but not limited to: ability to
appropriately serve individuals participating in the program, geographic
distribution that would ensure access in rural and underserved areas,
demonstrated cultural and language competencies specific to the
population of consumers and those of the available workforce, ability to
provide timely consumer assistance, experience serving individuals with
disabilities, the availability of consumer peer support, and
demonstrated compliance with all applicable federal and state laws and
regulations, including but not limited to those relating to wages and
labor;

(C) the manner by which prospective contractors may seek such
selection, which may include submission by electronic means;

(ii) all reasonable and responsive offers that are received from
prospective contractors in timely fashion shall be reviewed by the
commissioner;

(iii) the commissioner shall award such contracts to the contractors
that best meet the criteria for selection and are best suited to serve
the purposes of this section and the needs of consumers;

(iv) all entities providing fiscal intermediary services on or before
April first, two thousand nineteen, shall submit an offer for a contract
under this section within sixty days after the commissioner publishes
the initial offer on the department's website. Such entities shall be
deemed authorized to provide such services unless: (A) the entity fails
to submit an offer for a contract under this section within the sixty
days; or (B) the entity's offer for a contract under this section is
denied;

(v) all decisions made and approaches taken pursuant to this paragraph
shall be documented in a procurement record as defined in section one
hundred sixty-three of the state finance law; and

(vi) the commissioner is authorized to either reoffer contracts or
utilize the previous offer, to ensure that all provisions of this
section are met.

(b-1) Following the initial selection of contractors on February
eleventh, two thousand twenty-one, pursuant to the commissioner's
request for offers #20039 ("RFO") in accordance with this subdivision,
the commissioner is instructed to accept the offer to enter into
contracts with all applicants that were not initially selected on
February eleventh, two thousand twenty-one, but that were qualified by
the commissioner as meeting minimum requirements of the RFO, provided
that such qualified applicants that were not initially selected attest
that:

(i) the applicant was providing fiscal intermediary services for at
least two hundred consumers in a city with a population of more than one
million at any time between January first, two thousand twenty and March
thirty-first, two thousand twenty; or

(ii) the applicant was providing fiscal intermediary services for at
least fifty consumers in another area of the state at any time between
January first, two thousand twenty and March thirty-first, two thousand
twenty.

(b-2) Upon the publication of an attestation form or process to the
department's website, the remaining qualified applicants described in
paragraph (b-1) of this subdivision shall have sixty days to submit an
attestation and all required supporting documentation to the
commissioner.

(i) Any late submission shall disqualify the applicant from receiving
a contract award under paragraph (b-1) of this subdivision.

(ii) The number of consumers served by an applicant during the period
between January first, two thousand twenty and March thirty-first, two
thousand twenty may be measured by the greatest number of consumers
served in the specified region by the applicant on any day during that
period.

(iii) Applicant attestations shall be audited by the office of
Medicaid inspector general, and any false or inaccurate attestation
shall render any contract awarded under paragraph (b-1) of this
subdivision null and void; this provision shall not be construed to
limit or supersede any other applicable sanctions or penalties that may
be imposed under the medical assistance program.

(b-3) Contracts awarded under paragraph (b-1) of this subdivision
shall be limited to the service areas indicated on the applicants'
submission to the RFO.

(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-b. Actions involving the authorization of a fiscal intermediary.

(a) The department may terminate a fiscal intermediary's contract
under this section or suspend or limit the fiscal intermediary's rights
and privileges under the contract upon thirty day's 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. The written notice shall include:

(i) A description of the conduct and the issues related thereto that
have been identified as failure of compliance; and

(ii) the time frame of the conduct that fails compliance.

(b) Notwithstanding the foregoing, upon determining that the public
health or safety would be imminently endangered by the continued
operation or actions of the fiscal intermediary, the commissioner may
terminate the fiscal intermediary's contract or suspend or limit the
fiscal intermediary's rights and privileges under the contract
immediately upon written notice.

(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.

(d) where a fiscal intermediary is acquired by, merges with, sells
assets to, or engages in a transaction of a similar nature with a fiscal
intermediary that was awarded a contract pursuant to subdivision four-a
of this section, all the provisions of this subdivision shall apply. In
providing notice under subparagraph (i) of paragraph (a) of this
subdivision, the fiscal intermediary may inform the notice recipient of
the applicable transaction and, if applicable, the ability of the
consumer to remain with the awarded fiscal intermediary in accordance
with any guidance issued by the commissioner.

(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, 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.

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.