Situation Report | September 13, 2021
As described in the September 7 Situation Report, on August 31, 2021, the state Department of Health (DOH) posted a final regulation that covers changes to Personal Care Services (PCS) and Consumer Directed Personal Assistant Services (CDPAS) that were part of the final enacted 2020-21 state budget.
The regulation, which includes some provisions effective November 8, is available here.
HCA had submitted comprehensive comments on the then proposed rule that raised major issues with the establishment of an “Independent Assessor” (IA); eligibility changes for personal care and consumer directed services; continued ability of Certified Home Health Agencies (CHHAs) and Licensed Home Care Services Agencies (LHCSAs) to complete assessments and to be allowed to contract with the IA to do so; Independent Medical Review of high needs cases; and resolving mistakes and clinical disagreements. Unfortunately, DOH’s final rule did not make any substantive changes to its draft version.
DOH has provided the following summary of the changes:
- Frequency of Assessments: For routine reassessments to determine need for Community Based Long Term Services and Supports (CBLTSS), the frequency of such assessments changes from every six months to annually, except Programs for All Inclusive Care for the Elderly (PACE) plans, which are excluded from the definition of Managed Care Organization (MCO) for the purpose of these regulations.
- Independent Assessor: The regulations require that an Independent Assessor be established to conduct a single Community Health Assessment (CHA) to determine the need for CBLTSS. This assessment will be used by the MCO or LDSS to develop a plan of care (POC) and may also be used by provider organizations such as Adult Day Health Care Centers. In the case of Managed Long Term Care (MLTC) Plans, the same CHA will determine eligibility for plan enrollment on both a mandatory and voluntary basis. The current Conflict Free Evaluation and Enrollment Center (CFEEC) managed by Maximus will become the New York Independent Assessor (NYIA) under a contract with Maximus.
- Independent Practitioner Panel: The regulations replace the requirement for a physician’s order to authorize PCS/CDPAS with a requirement that these services are ordered by a qualified, independent practitioner and expand the list of ordering practitioners to include Medical Doctors (MD), Doctors of Osteopathy (DO), Nurse Practitioners (NP) and Physician Assistants (PA) contracted to work for the Independent Practitioner Panel (IPP) under the NYIA. The IPP will issue the Practitioner’s Order (PO) required to authorize PCS and/or CDPAS after reviewing the CHA in the UAS-NY, determining if the individual is self-directing or has an appropriate self-directing other, and if the individual can safely receive PCS/CDPAS at home based on their medical stability.
HCA continues to press the Department to confirm state authority for Nurse Practitioners and Physician Assistants to authorize and issue orders for home health services.
- Independent Review Panel: For high needs cases, the regulations require an additional medical review be conducted the first time an authorization for PCS/CDPAS exceeds twelve hours a day, on average, which will be conducted by an Independent Review Panel (IRP) under the NYIA. The IRP will review the individual’s CHA, PO and POC and may evaluate other records as needed to recommend whether the proposed POC is reasonable and appropriate to maintain the individual’s health and safety at home. The IRP recommendation to the MCO or LDSS may include suggested changes in scope, type, amount, or duration of services but cannot specify a recommended number of hours.
- Minimum Need Requirements: The regulations require, for new authorizations of individuals who have never received PCS/CDPAS prior to a date to be determined by the Department, the individuals must meet a minimum requirement for assistance with Activities of Daily Living (ADLs) to qualify for PCS/CDPAS. To be authorized for services, these individuals must need at least limited assistance with more than two ADLs or, if diagnosed with dementia or Alzheimer’s Disease, at least supervision with more than one ADL. These minimum need requirements apply to both service eligibility and MLTC plan enrollment eligibility.
- One fiscal intermediary (FI): The regulations require consumers, or if applicable the consumer’s designated representative, to work with only one FI at a time no matter how many PAs are hired to cover the authorized hours.
- Annual CDPAP notification: Eliminates the requirement for LDSS and MCOs to annually notify recipients of other home care services of the availability of the CDPAP.
- Consumer and designated representative responsibilities: The regulations require the consumer’s designated representative to be available to ensure that the consumer responsibilities are carried out without delay.
- Strengthen and clarify denial reasons and requirements: The regulations codify longstanding department policies on documenting the bases and rationales for LDSS and MCO actions to deny, discontinue or reduce services, and clarify in regulation additional appropriate bases for such actions.
DOH confirmed at HCA’s September 9 Senior Financial Manager’s Retreat that the final rule includes language whereby DOH can delay implementation of certain provisions until later than November 8. Those that won’t be implemented by November 8 include the Independent Assessor, Independent Practitioner Panel, Independent Review Panel and change in ADL eligibility criteria for PCS and CDPAS.
DOH states that additional guidance and trainings are being developed to facilitate the implementation of the new regulatory requirements and to transition MCOs, LDSS, providers, individuals and others to the NYIA.
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