N.Y. Soc. Serv. Law § 365-F : SOCIAL SERVICES — ASSISTANCE AND CARE — MEDICAL ASSISTANCE FOR NEEDY PERSONS —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 (19) 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. Participating providers. All agencies or individuals who meet the qualifications to provide home health, personal care or nursing services and who elect to provide such services to persons receiving medical assistance may participate in the program. Any agency or individuals providing services under a patient managed home care program authorized under the former section thirty-six hundred twenty-two of the public health law or the former sections three hundred sixty-five-f of this chapter may continue to provide such services under this section.

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 timeframe 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.

N.Y. Soc. Serv. Law § 365-F

Amended by New York Laws 2022, ch. 57,Sec. PP-4, eff. 4/9/2022.

Amended by New York Laws 2022, ch. 57,Sec. PP-3, eff. 4/9/2022.

Amended by New York Laws 2022, ch. 57,Sec. PP-2, eff. 4/9/2022.

Amended by New York Laws 2022, ch. 57,Sec. PP-1, eff. 4/9/2022.

Amended by New York Laws 2021, ch. 57,Sec. LL-3, eff. 4/19/2021.

Amended by New York Laws 2021, ch. 57,Sec. LL-2, eff. 4/19/2021.

Amended by New York Laws 2021, ch. 57,Sec. LL-1, eff. 4/19/2021.

Amended by New York Laws 2020, ch. 56,Sec. MM-3, eff. 10/1/2020.

Amended by New York Laws 2020, ch. 56,Sec. MM-2-b, eff. 10/1/2020.

Amended by New York Laws 2020, ch. 56,Sec. QQ-9, eff. 4/3/2020, op. 4/1/2020.

Amended by New York Laws 2020, ch. 56,Sec. MM-17, eff. 4/3/2020, op. 4/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-8, eff. 1/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-7, eff. 1/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-6, eff. 4/12/2019.

Amended by New York Laws 2019, ch. 57,Sec. G-5, eff. 1/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-4, eff. 1/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-3, eff. 1/1/2020.

Amended by New York Laws 2019, ch. 57,Sec. G-2, eff. 4/12/2019.

Amended by New York Laws 2018, ch. 57,Sec. K-1-a, eff. 4/12/2018.

Amended by New York Laws 2018, ch. 57,Sec. B-9-f, eff. 4/12/2018.

Amended by New York Laws 2017, ch. 488,Sec. 1, eff. 4/1/2017.

Amended by New York Laws 2017, ch. 57,Sec. E-1, eff. 1/1/2018.

Amended by New York Laws 2015, ch. 511,Sec. 1 and Sec. 2, eff. 4/1/2016.

Amended by New York Laws 2014, ch. 60,Sec. C-27-b, eff. 4/1/2014.

Amended by New York Laws 2014, ch. 60,Sec. C-24, eff. 4/1/2014.

See New York Laws 2018, ch. 41, Sec. 1.