Title: Section 505.28 - Consumer directed personal assistance program

505.28 Consumer directed personal assistance program.

(a) Purpose. The consumer directed personal assistance program is intended to permit chronically ill or physically disabled individuals receiving home care services under the medical assistance program greater flexibility and freedom of choice in obtaining such services.

(b) Definitions. The following definitions apply to this section:

(1) Activity of daily living means those activities recognized as activities of daily living by the evidence based validated assessment tool in accordance with section 2-a of part MM of chapter 56 of the laws of 2020.

(2) "consumer" means a medical assistance recipient who a social services district or MMCO has determined eligible to participate in the consumer directed personal assistance program.

(3) "consumer directed personal assistance" means the provision of assistance with personal care services, home health aide services and skilled nursing tasks by a consumer directed personal assistant under the instruction, supervision and direction of a consumer or the consumer's designated representative.

(4) "consumer directed personal assistant" means an adult who provides consumer directed personal assistance to a consumer under the consumer's instruction, supervision and direction or under the instruction, supervision and direction of the consumer's designated representative. A person legally responsible for the consumer’s care and support, a consumer's spouse, or the consumer's designated representative may not be the consumer directed personal assistant for that consumer; however, a consumer directed personal assistant may include any other adult relative of the consumer provided that the district or MMCO determines that the services provided by such relative are consistent with the consumer’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.

(5) consumer directed personal assistance program or consumer directed program or the program means the program provided for under section 356-f of title 11 of article 5 of the Social Services Law.

(6) "continuous consumer directed personal assistance" means the provision of uninterrupted care, by more than one consumer directed personal assistant, for more than 16 hours in a calendar day for a consumer who, because of the consumer’s medical condition, needs assistance during such calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks, and needs assistance with such frequency that a live-in 24-hour consumer directed personal assistant would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(7) "designated representative" means an adult to whom a self-directing consumer has delegated authority to instruct, supervise and direct the consumer directed personal assistant and to perform the consumer's responsibilities specified in subdivision (h) of this section and who is willing and able to perform these responsibilities. With respect to a non self-directing consumer, a "designated representative" means the consumer's parent, legal guardian or, subject to the social services district's approval, a responsible adult surrogate who is willing and able to perform such responsibilities on the consumer's behalf. The designated representative may not be the consumer directed personal assistant or a fiscal intermediary employee, representative or affiliated person.

(8) "fiscal intermediary" means an entity that has a contract with the New York State Department of Health to provide wage and benefit processing for consumer directed personal assistants and other fiscal intermediary responsibilities specified in subdivision (j) of this section.

(9) "fiscal intermediary administrative costs" means the allowable costs incurred by a fiscal intermediary for performance of fiscal intermediary services under section 365-f(4-a) of the Social Services Law and fiscal intermediary responsibilities under subdivision (i) of this section.

(10) "home health aide services" means services within the scope of practice of a home health aide pursuant to Article 36 of the Public Health Law including simple health care tasks, personal hygiene services, housekeeping tasks essential to the consumer's health and other related supportive services. Such services may include, but are not necessarily limited to, the following: preparation of meals in accordance with modified diets or complex modified diets; administration of medications; provision of special skin care; use of medical equipment, supplies and devices; change of dressing to stable surface wounds; performance of simple measurements and tests to routinely monitor the consumer's medical condition; performance of a maintenance exercise program; and care of an ostomy after the ostomy has achieved its normal function.

(11) live-in 24-hour consumer directed personal assistance means the provision of care by one consumer directed personal assistant for a consumer who, because of the consumer’s medical condition, needs assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks and whose need for assistance is sufficiently infrequent that a live-in 24-hour consumer directed personal assistant would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.  

(12) Medicaid Managed Care Organization or MMCO means an entity, other than an entity approved to operate a Program of All-inclusive Care for the Elderly (PACE) plan, that is approved to provide medical assistance services, pursuant to a contract between the entity and the Department of Health, and that is: (i) certified under article forty-four of the Public Health Law, or (ii) licensed under article forty-three of the Insurance Law.  

(13) Medical assistance or Medicaid means the program to provide services and benefits under title 11 or article 5 of the Social Services Law.

(14) minimum needs requirements means, for individuals with a diagnosis by a physician of dementia or Alzheimer’s, being assessed in accordance with subdivision (d) of this section as needing at least supervision with more than one activity of daily living, and for all other individuals, being assessed in accordance with subdivision (d) of this section as needing at least limited assistance with physical maneuvering with more than two activities of daily living.

(15) "personal care services" means the nutritional and environmental support functions, personal care functions, or both such functions, that are specified in Section 505.14(a)(5) of this Part except that, for individuals whose needs are limited to nutritional and environmental support functions, personal care services shall not exceed eight hours per week.

(16) a "self-directing consumer" means a consumer who is capable of making choices regarding the consumer's activities of daily living and the type, quality and management of his or her consumer directed personal assistance; understands the impact of these choices; assumes responsibility for the results of these choices; and is capable of instructing, supervising, managing and directing consumer directed personal assistants and performing all other consumer responsibilities identified in this section.

(17) "skilled nursing tasks" means those skilled nursing tasks that are within the scope of practice of a registered professional nurse or a licensed practical nurse and that a consumer directed personal assistant may perform pursuant to Section 6908 of the Education Law.

(18) "stable medical condition" means a condition that is not expected to exhibit sudden deterioration or improvement and does not require frequent medical or nursing evaluation or judgment to determine changes in the consumer's plan of care.

(c) Eligibility requirements. To participate in the consumer directed personal assistance program, an individual must meet the following eligibility requirements:

(1) be eligible for medical assistance;

(2) be eligible for long term care and services provided by a certified home health agency, or an AIDS home care program authorized pursuant to Article 36 of the Public Health Law; or for personal care services or private duty nursing services;

(3) have a stable medical condition;

(4) be self-directing or, if non self-directing, have a designated representative;

(5) need assistance with one or more personal care services, home health aide services or skilled nursing tasks;

(6) be willing and able to fulfill the consumer's responsibilities specified in subdivision (h) of this section or have a designated representative who is willing and able to fulfill such responsibilities;

(7) participate as needed, or have a designated representative who so participates, in the required assessment and reassessment processes specified in subdivisions (d) and (f) of this section; and

(8) meet minimum needs requirements in accordance with state statute.

(d) Assessment process.  The assessment process includes an independent assessment, a medical examination and practitioner order, an evaluation of the need and cost-effectiveness of services, the development of the plan of care, and, when required under paragraph (5) of this subdivision, a referral to an independent review panel. The independent assessment, medical exam and independent review panel may utilize telehealth modalities for all or a portion of such assessments provided that the individual is given an opportunity for an in-person assessment and receives any necessary support during the telehealth assessment, which may include the participation of an on-site representative or support-staff. The initial assessment process shall include the following procedures:

(1) Independent assessment. An assessment shall be completed by an independent assessor employed or contracted by an entity designated by the Department of Health to provide independent assessment services on forms approved by the Department of Health in accordance with the following:

(i) The independent assessment must be performed by a nurse with the following minimum qualifications:

(a) a license and current registration to practice as a registered professional nurse in New York State; and

(b) at least two years of satisfactory recent experience in home health care.

(ii) The independent assessment shall include the following:

(a) an assessment of the functions and tasks required by the individual, including an assessment of whether the individual meets minimum needs requirements;

(b) a discussion with the individual or, if applicable, the individual's designated representative to determine the individual's perception of his or her circumstances and preferences; and

(c) an assessment of the potential contribution of informal supports, such as family members or friends, to the individual's care, which must consider:

(1) the number and kind of informal supports available to the individual;

(2) the ability and motivation of informal supports to assist in care;

(3) the extent of informal supports' potential involvement;

(4) the availability of informal supports for future assistance; and

(5) the acceptability to the individual of the informal supports' involvement in his or her care;

(iii) The independent assessment must assess the consumer where the consumer is located including the consumer’s home, a nursing facility, rehabilitation facility or hospital, provided that the consumer’s home or residence shall be evaluated as well if necessary to support the proposed plan of care and authorization or to ensure a safe discharge. This provision shall not be construed to prevent or limit the use of telehealth in the assessment of a consumer.

(2) Independent medical exam and practitioner order.

(i) Each individual seeking to participate in the consumer directed program must have an examination by a medical professional employed or contracted by an entity designated by the Department of Health to provide independent practitioner services.

(ii) The medical professional who examines the individual must be a physician licensed in accordance with article 131 of the Education Law, a physician assistant or a specialist assistant registered in accordance with article 131-B of the Education Law or a nurse practitioner certified in accordance with article 139 of the Education Law.

(iii) The medical professional must be independent with respect to the individual, meaning that medical professional that conducts the exam must not have established a provider-patient relationship with the individual prior to the clinical encounter from which the practitioner order is completed.

(iv) The medical professional must examine the individual and accurately describe the individual's medical condition and regimens, including any medication regimens, and the individual's need for assistance with personal care services, home health aide services and skilled nursing tasks.

(v) The medical professional must review the independent assessment and may review other medical records and consult with the individual’s providers and others involved with the individual’s care if available to and determined necessary by the medical professional.

(vi) The medical professional must complete a form required or approved by the Department of Health (the “practitioner order form”).

(vii) The medical professional must sign the practitioner order form, certify that the information provided in the form accurately describes the individual's medical condition and regimens at the time of the medical examination, and indicate whether the individual is self-directing, consistent with the definition of self-directing in this section, and whether the individual is medically stable.

(viii) The practitioner’s order form must be completed and made available by the medical professional to the social services district or any MMCOs as appropriate after the medical examination and independent assessment.

(ix) The practitioner order is subject to the provisions of Parts 515, 516, 517 and 518 of this Title. These Parts permit the Department of Health or other agencies or organizations duly authorized or delegated by the Department of Health, including but not limited to MMCOs or the Office of the Medicaid Inspector General, to impose monetary penalties on, or sanction and recover overpayments from, providers or prescribers of medical care, services or supplies when medical care, services or supplies that are unnecessary, improper or exceed individuals’ documented needs are provided or ordered.

(3) Social services district or MMCO responsibilities.

(i) Before developing a plan of care or authorizing services, a social services district or MMCO shall review the individual’s most recent independent assessment and practitioner order, and may directly evaluate the individual, to determine the following:

(a) whether services can be provided according to the individual's plan of care, whether such services are medically necessary and whether the social services district or MMCO reasonably expects that such services can maintain the individual's health and safety in his or her home, as determined in accordance with the regulations of the Department of Health;

(b)  the individual's ability and willingness to fulfill the consumer's responsibilities specified in subdivision (h) of this section and, if applicable, the ability and willingness of the individual's designated representative to assume these responsibilities;

(c) the individual’s preferences and social and cultural considerations for the receipt of care;

(d) whether the functional needs, living and working arrangements of an individual who receives services solely for monitoring the individual's medical condition and well-being can be monitored appropriately and more cost-effectively by personal emergency response services provided in accordance with section 505.33 of this Part;

(e) whether the individual can be served appropriately and more cost-effectively by other long-term care services and supports, including, but not limited to the assisted living program or the enriched housing program;

(f) whether services can be provided appropriately and more cost-effectively in cooperation with an adult day health or social adult day care program;

(g) whether the individual’s needs can be met through the use of telehealth services that can be demonstrated and documented to reduce the amount of services needed and where such services are readily available and can be reliably accessed;

(h) whether the individual can be served appropriately and more cost-effectively by using adaptive or specialized medical equipment or supplies covered by the medical assistance program including, but not limited to, bedside commodes, urinals, walkers, wheelchairs and insulin pens;

(i) whether the consumer’s needs can by met through the provision of formal services provided or funded by an entity, agency or program other than the medical assistance program; and

(j) whether the consumer’s needs can be met through the voluntary assistance available from informal caregivers including, but not limited to, the consumer’s family, friends or other responsible adult, and whether such assistance is available.

(ii) The social services district or MMCO must first determine whether the individual, because of the individuals’ medical condition, would be otherwise eligible for personal care services, including continuous personal care services or live-in 24-hour personal care services. For individuals who would be otherwise eligible for personal care services, the district must then determine whether, and the extent to which, the individual can be served through the provision of services described in subparagraphs (i)(d) through (i)(j) of this paragraph.

(a) If a social services district or MMCO determines that an individual can be served appropriately and more cost-effectively through the provision of services described in subparagraphs (i)(d) through (i)(g) of this paragraph, and the social services district or MMCO determines that such services are available in the district to the individual, the social services district or MMCO must consider the use of such services as well the individuals identified preferences and social and cultural considerations described in subparagraph (i)(c) of this paragraph in developing the individual's plan of care.

(b) If a social services district or MMCO determines that other formal services are available or the individual’s needs can be met using available adaptive or specialized medical equipment or supplies or voluntary assistance from informal caregivers, as described in subparagraphs (i)(h) through (i)(j) of this paragraph, the social services district or MMCO must include these in the individual’s plan of care. To ensure availability of voluntary informal supports, the social services district or MMCO must confirm the caregiver’s willingness to meet the identified needs in the plan of care for which they will provide assistance.

(iii) For cases involving live-in 24-hour consumer directed personal assistance, the social services district or MMCO shall evaluate whether the consumer’s home has sleeping accommodations for a consumer directed personal assistant. When the consumer’s home has no sleeping accommodations for a consumer directed personal assistant, continuous consumer directed personal assistance must be authorized for the consumer; however, should the consumer’s circumstances change and sleeping accommodations for a consumer directed personal assistant become available in the consumer’s home, the district or MMCO must promptly review the case. If a reduction of the consumer’s continuous consumer directed personal assistance to live-in 24-hour consumer directed personal assistance is appropriate, the district must send the consumer a timely and adequate notice of the proposed reduction.

(iv) For cases involving continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance cases, the social services district or MMCO shall assess and document in the plan of care the following:

(a) whether the practitioner order indicated a medical condition that causes the consumer to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks;

(b) the specific functions or tasks with which the consumer requires frequent assistance during a calendar day;

(c) the frequency at which the consumer requires assistance with these functions or tasks during a calendar day;

(d) whether the consumer requires similar assistance with these functions or tasks during the consumer’s waking and sleeping hours and, if not, why not; and

(e) whether, were live-in 24-hour consumer directed personal assistance to be authorized, the consumer directed personal assistant would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(v) The social services district or MMCO is responsible for developing a plan of care in collaboration with the consumer or, if applicable, the consumer’s designated representative that reflects the assessments and practitioner order described in this subdivision. In the plan of care, the social services district or MMCO must identify:

(a) the personal care services, home health aide services and skilled nursing functions or tasks with which the consumer needs assistance;

(b) the amount, frequency and duration of services to be authorized to meet these needs;

(c) how needs are met, if not met through the authorization of services; and

(d) any other descriptions and documentation provided for in this section.

(vi) Upon the development of a plan of care, the social services district or MMCO shall refer high needs cases described in paragraph (5) of this subdivision to the independent review panel; provided, however, that an MMCO should not refer a case unless and until the individual is enrolled or scheduled for enrollment in the MMCO. When a case is referred to the independent review panel:

(a) the social services district or MMCO shall provide the individual’s plan of care and any clinical records or other documentation used to develop the plan of care, such as records from treating providers and the results of any review or evaluation performed pursuant to this paragraph to the panel;

(b) the social services district or MMCO shall cooperate with the panel as appropriate to ensure an expedient review of each high needs case; and

(c) the social services district or MMCO shall consider the panel’s recommendation in finalizing the plan of care and authorization. However, The social services district or MMCO is not required to adopt the recommendation, either in full or in part, and remains responsible for determining the amount and type of services medically necessary.

(4) Coordinating the independent assessment, practitioner order and LDSS or MMCO responsibilities.

(i) The social services district or MMCO must coordinate with the entity or entities providing independent assessment and practitioner services to minimize disruption to the consumer and in-home visits.

(ii) The social services district or MMCO must inform the entity or entities providing independent assessment and practitioner services when a new assessment or practitioner order is needed pursuant to subdivision (f)(1)(ii) and subdivision (f)(2) of this section, in accordance with department guidance, using forms as may be required by the department.

(a) When the social services district or MMCO receives an initial or new request to participate in the consumer directed personal assistance program, it shall refer the individual to the entity providing independent assessment services and provide assistance to the individual in making contact in accordance with department guidance; provided however that the social services district or MMCO may not pressure or induce the consumer to request an assessment unwillingly.

(b) If needed, the MMCO shall also refer the individual to the social services district to determine the individual’s eligibility for medical assistance, including community-based long term care services.

(iii) The entity or entities providing independent assessment or practitioner services may request that the social services district or MMCO confirm or update a consumer’s record in the assessment database designated by the Department. The social service district or MMCO shall respond within one business day and confirm or update the relevant record within three business days after receipt of request.

(iv) Resolving mistakes and clinical disagreements in the assessment process.

(a) If the social services district or MMCO identifies a material mistake in the independent assessment that can be confirmed by the submission of evidence, the social services district or MMCO shall advise the independent assessor. A mistake is an error of fact or observation that occurred when the assessment was performed that is not subject to the independent assessor’s clinical judgment. A mistake is material when it would affect the amount, type, or duration of services authorized. When identifying the mistake, the social services district or MMCO must provide evidence of the mistake to the independent assessor. The independent assessor shall promptly issue a corrected assessment or schedule a new assessment in accordance with clause (c) of this subparagraph as appropriate.

(b) After reviewing the independent assessment, practitioner order and the result of any social service district or MMCO assessment or evaluation, if the social services district or MMCO has a material disagreement regarding the outcome of the independent assessment, the social services district or MMCO may advise the independent assessor. A disagreement occurs when the social services district or MMCO disputes a finding or conclusion in the independent assessment that is subject to the independent assessor’s clinical judgment. A disagreement is material when it would affect the amount, type, or duration of services authorized. When submitting a disagreement to the independent assessor, the social services district or MMCO must provide the clinical rationale that forms the basis for the disagreement.

(c) Upon submission of a material disagreement, an independent assessor shall schedule and complete a new assessment within 10 days from the date it receives notice from the social services district or MMCO. This shall not pend or otherwise affect the timeframes within which the social services district or MMCO is required to make a determination, provide notice, or authorize services.

(v) Sanctions for failure to cooperate and abuse of the resolution process.

(a) The Department of Health may impose monetary penalties pursuant to Public Health Law section 12 for failure to coordinate with the entity or entities providing independent assessment and practitioner services in accordance with the provisions of clauses (a) through (c) of this subparagraph or engaging in abusive behavior that affects the coordination of the assessment process. In determining whether to impose a monetary penalty and the amount imposed, the Department shall consider, where applicable, the following:

(1) The frequency and numerosity of violations, both in absolute terms and relative to other MMCOs;

(2) The responsiveness of the MMCO to requests for coordination;

(3) The history of coordination between the MMCO and the entity or entities;

(4) The good faith demonstrated by the MMCO in attempting to coordinate;

(5) Whether the MMCO provides a justification for the violation and whether it has merit, as determined by the Department;

(6) Whether the violation resulted or could have resulted in injury or other harm to the consumer; and

(7) Other relevant facts or circumstances.

(b) The Department of Health may revoke, or impose other restrictions on a social services district’s or MMCO’s privilege to request reassessments on the basis of a material disagreement where the Department determines that the social services district has abused this privilege, including the use of the mistake process for issues subject to clinical judgment or improperly pressuring consumers to request a new assessment. In determining whether a social services district or MMCO has abused this privilege, the Department shall consider, where applicable, the following:

(1) The frequency and numerosity of disagreements, mistakes, and reassessment requests submitted to the independent assessor, both in absolute terms and relative to other social services districts and MMCOs;

(2) Whether the clinical rationale provided for the disagreement has merit, as determined by the Department;

(3) Whether the disagreement, mistake, and reassessment requests are made as a matter of course, instead of upon review of the clinical record;

(4) The outcome of the reassessment as compared to the assessment it replaces; and

(5) Other facts or circumstances that tend to provide evidence for or against abuse.

(c) Nothing in this section shall be construed to limit the authority of the Department or other agencies to seek other remedies, sanctions or penalties, including other monetary penalties.

(5) Independent medical review of high needs cases.

An independent medical review of a proposed plan of care shall be obtained before a social services district or MMCO may authorize more than 12 hours of personal care services or consumer directed personal assistance, separately or in combination, per day on average (“high needs cases”). The review shall result in a recommendation made to the social services district or MMCO, as described in this paragraph.

(i) The independent medical review must be performed by an independent panel of medical professionals, or other clinicians, employed by or under contract with an entity designated by the Department of Health (the “independent review panel”).

(ii) The case review shall be coordinated by a physician (the “lead physician”) who shall be selected from the independent review panel. The lead physician may not be the same person who performed the initial medical examination or signed the individual’s practitioner order.

(iii) The lead physician must review the independent assessment, practitioner order, any other assessment or review conducted by the social services district or MMCO, including any plan of care created.

(iv) The lead physician may evaluate the individual, or review an evaluation performed by another medical professional on the independent review panel. The medical professional may not have performed the initial medical examination or signed the individual’s practitioner order.

(v) The lead physician and panel members may consult with or interview other members of the independent review panel, the ordering practitioner, the individual’s treating or primary care physician, and other individuals that the lead physician deems important and who are available to assist with the panel’s review.

(vi) The lead physician and panel members may request such additional information or documentation, including medical records, case notes, and any other material the lead physician deems important to assist the panel’s review and recommendation.

(vii) After review, the independent review panel shall produce a report, signed by the lead physician, providing a recommendation on the reasonableness and appropriateness of the proposed plan of care to maintain the individual’s health and safety in his or her own home, in accordance with the standards and scope of services set forth in this section. The report may suggest modifications to the plan of care, including the level, frequency, and duration of services and whether additional, alternative, or fewer services would facilitate the provision of medically necessary care. The report may not, however, recommend a specific amount or change in amount of services.

(e) Authorization process. (1)(i) An individual’s eligibility for medical assistance and services, including the individual’s financial eligibility and eligibility for the consumer directed program and services thereunder as provided for in this section, shall be established prior to authorization for services. The entity designated by the Department of Health to provide independent assessment services shall be responsible for determining whether individuals meet minimum needs requirements for services.

(ii) The authorization must be completed by the social services district or MMCO prior to the initiation of services. In the case of the social services district, the authorization of services shall be prepared by staff of the social services district and such responsibility may not be delegated to another person or entity.

(iii) The authorization and reauthorization of services, including the level, amount, frequency and duration of services, by the social services district or MMCO must be based on and reflect the outcome of the assessment process outlined in subdivision (d) of this section except as otherwise provided in subdivision (f) of this section.

(iv) When the social services district or MMCO determines pursuant to the assessment process that the individual is eligible to participate in the consumer directed personal assistance program, the district or MMCO must authorize consumer directed personal assistance according to the consumer's plan of care. The district or MMCO must not authorize consumer directed personal assistance unless it reasonably expects that such assistance can maintain the individual's health and safety in the home or other setting in which consumer directed personal assistance may be provided.

(v) The social service district or MMCO shall not authorize services provided through more than one fiscal intermediary per consumer.

(vi) Consumer directed personal assistance, including continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance, shall not be authorized to the extent that the social services district or MMCO determines that any of the services or supports identified in clauses (h) through (i) of subdivision (d)(3)(j) of this section are available and appropriate to meet the consumer’s needs and are cost-effective if provided instead of consumer directed personal assistance.

(2) The district or MMCO may authorize only the hours or frequency of services that the consumer actually requires to maintain his or her health and safety in the home.

(3) The duration of the authorization period must be based upon the consumer's needs as reflected in the required assessments and plan of care. In determining the authorization period, the social services district must consider the consumer's prognosis and potential for recovery and the expected duration and availability of any informal supports or alternative services identified in the plan of care.

(4) The social services district or MMCO may not authorize more than 12 hours of personal care services per day on average prior to considering the recommendation of the independent review panel in accordance with procedures outlined in paragraphs (3) and (5) of subdivision (d), unless such authorization is ordered pursuant to a fair hearing decision or by another court of competent jurisdiction. Pending review of the independent review panel’s recommendation and if necessary to comply with federal or state timeliness requirements, including immediate needs cases, the social services district or MMCO may authorize and implement services based on a temporary plan of care which provides for more than 12 hours of personal care services per day on average.

(5) No authorization may exceed 12 months from the date of the most recent independent assessment or practitioner order, whichever is earlier.

(6) The social services district or MMCO must provide the consumer with a copy of the plan of care that specifies the consumer directed personal assistance that the district or MMCO has authorized the consumer to receive and the number of hours per day or week of such assistance.

(7) Nothing in this subdivision precludes the provision of the consumer directed personal assistance program in combination with other services when a combination of services can appropriately and adequately meet the consumer's needs; provided, however, that no duplication of Medicaid-funded services would result.

(f) Reassessment and reauthorization processes. (1) Prior to the end of the authorization period, the social services district or MMCO must determine the consumer's continued eligibility for the consumer directed personal assistance program in accordance with the assessment process set forth in subdivision (d) of this section, except as otherwise provided for in this subdivision.

(i) The social services district or MMCO must evaluate whether the consumer or, if applicable, the consumer's designated representative satisfactorily fulfilled the consumer's responsibilities under the consumer directed personal assistance program. The social services district or MMCO must consider whether the consumer or, if applicable, the consumer's designated representative has failed to satisfactorily fulfill the consumer's responsibilities when determining whether the consumer should be reauthorized for the consumer directed personal assistance program.

(ii) Neither an independent assessment nor a practitioner order shall be required to reauthorize or continue an authorization of services, except:

(a) prior to or in conjunction with a discharge from an institutional or in-patient setting, provided that this provision shall not be construed to prohibit a safe discharge from occurring; 

(b) as provided in paragraph (2) of this subdivision;

(c) that an individual in receipt of services may request a new independent assessment; and

(d) an individual in receipt of services must receive an independent assessment and practitioner order at least annually to maintain authorization.

(iii) When the social services district or MMCO determines, pursuant to the reassessment process, that the consumer is eligible to continue to participate in the consumer directed personal assistance program, the district or MMCO must reauthorize consumer directed personal assistance in accordance with the authorization process specified in subdivision (e) of this section. When the district or MMCO determines that the consumer is no longer eligible to continue to participate in the consumer directed personal assistance program, the district or MMCO must send the consumer, and such consumer's designated representative, if any, a timely and adequate notice under Part 358 and Subpart 360-10 of this Title of the district's or MMCO's intent to discontinue consumer directed personal assistance on forms required by the department.

(2) The social services districtor MMCO must reassess the consumer when an unexpected change in the consumer's social circumstances, mental status or medical condition occurs during the authorization period that would affect the type, amount or frequency of consumer directed personal assistance provided during such period. The district or MMCO is responsible for making necessary changes in the authorization or reauthorization on a timely basis in accordance with the following procedures:

(i) When the change in the consumer's service needs results solely from an unexpected change in the consumer's social circumstances including, but not limited to, loss or withdrawal of informal supports or a designated representative, the social services district or MMCO must review the independent assessment, document the consumer's changed social circumstances and make changes in the authorization or reauthorization as needed. A new practitioner order and independent assessment are not required; or

(ii) When the change in the consumer's service needs results from a change in the consumer's mental status or medical condition, including loss of the consumer's ability to make judgments or to instruct, supervise or direct the consumer directed personal assistant, the social services district or MMCO must obtain a new independent assessment and practitioner order.

(3) When there is any change in the individual’s service needs, a social services district or MMCO shall consider such changes and document them in the plan of care, and shall consider and make any necessary changes to the authorization.

(g) Timeframes for the assessment and authorization of services

(1) The independent assessment and practitioner order processes shall be completed at least annually and in sufficient time such that social services districts and MMCOs may have an opportunity when needed to comply with all applicable federal and state timeframes for notice and determination of services, including but not limited to immediate needs.

(2) A social services district must make a determination and provide notice with reasonable promptness, not to exceed seven business days after receipt of both the independent assessment and practitioner order, or the independent review panel recommendation if applicable, except in unusual circumstances including, but not limited to, the need to resolve any outstanding questions regarding the amount or duration of services to be authorized, or as provided in subdivision (l) of this section.

(3) An MMCO must make a determination and provide notice to current enrollees within the timeframes provided in the contract between the Department of Health and the MMCO, or as otherwise required by Federal or state statute or regulation.

(h) Consumer and designated representative responsibilities. (1) A consumer or, if applicable, the consumer's designated representative has the following responsibilities under the consumer directed personal assistance program:

(i) managing the plan of care including recruiting and hiring a sufficient number of individuals who meet the definition of consumer directed personal assistant, as set forth in subdivision (b) of this section, to provide authorized services that are included on the consumer's plan of care; training, supervising and scheduling each assistant; terminating the assistant's employment; and 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;

(ii) timely notifying the social services district or MMCO of any changes in the consumer's medical condition or social circumstances including, but not limited to, any hospitalization of the consumer or change in the consumer's address, telephone number or employment;

(iii) timely notifying the fiscal intermediary of any changes in the employment status of each consumer directed personal assistant;

(iv) attesting to the accuracy of each consumer directed personal assistant's time sheets;

(v) transmitting the consumer directed personal assistant's time sheets to the fiscal intermediary according to its procedures;

(vi) timely distributing each consumer directed personal assistant's paycheck, if needed;

(vii) arranging and scheduling substitute coverage when a consumer directed personal assistant is temporarily unavailable for any reason; and

(viii) entering into a department approved memorandum of understanding with the fiscal intermediary and with the social services district or MMCO that describes the parties' responsibilities under the consumer directed personal assistance program.

(2) the designated representative must make themselves available to ensure that the consumer responsibilities are carried out without delay. In addition, designated representatives for nonself-directing consumers must make themselves available and be present for any scheduled assessment or visit by the independent assessor, examining medical professional, social services district staff or MMCO staff.

(3) A consumer, or if applicable the consumer’s designated representative, may not work with more than one fiscal intermediary at a time. Where more than one fiscal intermediary is serving the same consumer at a given time, the consumer is required to select a single fiscal intermediary to work with in accordance with guidance provided by the Department.

(i) Social services district and MMCO responsibilities. Social services districts or MMCOs have the following responsibilities with respect to the consumer directed personal assistance program:

(1) complying with the assessment, authorization, reassessment and reauthorization procedures specified in subdivisions (d) through (f) of this section;

(2) receiving and promptly reviewing, the fiscal intermediary's notification to the district or MMCO pursuant to subparagraph (j)(1)(v) of this section of any circumstances that may affect the consumer's or, if applicable, the consumer's designated representative's ability to fulfill the consumer's responsibilities under the program and making changes in the consumer's authorization or reauthorization as needed;

(3) discontinuing, after timely and adequate notice in accordance with part 358 and Subpart 360-10 of this Title, the consumer's participation in the consumer directed personal assistance program and making referrals to other services that the consumer may require when the district or MMCO determines that the consumer or, if applicable, the consumer's designated representative is no longer able to fulfill the consumer's responsibilities under the program or no longer desires to continue in the program;

(4) notifying consumers of the district's or MMCO's decision to authorize, reauthorize, increase, reduce, discontinue or deny services under the consumer directed personal assistance program.  The Department of Health may require the use of forms it develops or approves when providing such notice;

(i) Social services districts or MMCOs that deny, reduce or discontinue services based on medical necessity must identify and document in the notice and in the consumer’s plan of care the factors that demonstrate such services are not medically necessary or are no longer medically necessary. Any such denial or reduction in services must clearly indicate a clinical rationale that shows review of the consumer’s specific clinical data and medical condition; the basis on which the consumer’s needs do not meet specific benefit coverage criteria, if applicable; and be sufficient to enable judgment for possible appeal.

(ii) Appropriate reasons and notice language to be used when denying consumer directed personal assistance include but are not limited to the following:

(a) the consumer’s health and safety cannot be reasonably assured with the provision of consumer directed personal assistance. The notice must identify the reason or reasons that the consumer’s health and safety cannot be reasonably assured with the provision of such assistance;

(b) the consumer’s medical condition is not stable. The notice must identify the consumer’s medical condition that is not stable;

(c) the consumer is not self-directing and has no designated representative to assume those responsibilities;

(d) the consumer refused to cooperate in the required assessment;

(e) the consumer’s needs may be met, in whole or part, by a technological development, which the notice must identify, that renders certain services unnecessary or less time-consuming, including the use of telehealth services or assistive devices that can be demonstrated and documented to reduce the amount of services that are medically necessary;

(f) the consumer or, if applicable, the consumer’s designated representative is unable or unwilling to fulfill the consumer’s responsibilities under the program;

(g) the consumer can be more appropriately and cost-effectively served through other Medicaid programs or services, which the notice must identify; and 

(h) the consumer’s need(s) can be met either without services or with the current level of services by fully utilizing any available informal supports, or other supports and services, that are documented in the plan of care and identified in the notice.

(iii) Appropriate reasons and notice language to be used when reducing or discontinuing consumer directed personal assistance include but are not limited to the following:

(a) the consumer’s medical or mental condition or economic or social circumstances have changed and the district determines that the consumer directed personal assistance provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours. This includes but is not limited to cases in which: the consumer’s health and safety can no longer be reasonably assured with the provision of consumer directed personal assistance; the consumer’s medical condition is no longer stable; the consumer is no longer self-directing and has no designated representative to assume those responsibilities; or voluntary informal supports that are acceptable to the client have become available to meet some or all of the client’s needs. The notice must identify the specific change in the consumer’s medical or mental condition or economic or social circumstances from the last authorization or reauthorization and state why the assistance should be reduced or discontinued as a result of the change;

(b) a mistake occurred in the previous authorization or reauthorization for consumer directed personal assistance. The notice must identify the specific mistake that occurred in the previous authorization or reauthorization and state why the prior assistance is not needed as a result of the mistake;

(c) the consumer refused to cooperate in the required reassessment;

(d) the consumer’s needs may be met, in whole or part, by a technological development, which the notice must identify, that renders certain assistance unnecessary or less time-consuming, including the use of readily available telehealth services or assistive devices that are accessible to the individual and that can be demonstrated and documented to reduce the amount of services that are medically necessary;

(e) the consumer resides in a facility or participates in another program or receives other services, which the notice must identify, which are responsible for the provision of needed assistance;

(f) the consumer or, if applicable, the consumer’s designated representative is no longer able or willing to fulfill the consumer’s responsibilities under the program or the consumer no longer desires to continue in the program;

(g) the consumer can be more appropriately and cost-effectively served through other Medicaid programs or services, which the notice must identify;

(h) an assessment of the consumer’s needs demonstrates that the immediately preceding social services district or MMCO authorized more services than are medically necessary following any applicable continuity of care period required by the Department of Health.

(5) maintaining current case records on each consumer and making such records available, upon request, to the department or the department's designee;

(6) entering into a Department of Health approved memorandum of understanding with the consumer that describes the parties' responsibilities under the consumer directed personal assistance program.

(j) Fiscal intermediary responsibilities. (1) Fiscal intermediaries have the following responsibilities with respect to the consumer directed personal assistance program:

(i) processing each consumer directed personal assistant's wages and benefits including establishing the amount of each assistant's wages; processing all income tax and other required wage withholdings; and complying with worker's compensation, disability and unemployment insurance requirements;

(ii) ensuring that the health status of each consumer directed personal assistant is assessed prior to service delivery pursuant to 10 NYCRR § 766.11(c) and (d) or any successor regulation;

(iii) maintaining personnel records for each consumer directed personal assistant, including time sheets and other documentation needed for wages and benefit processing and a copy of the medical documentation required pursuant to 10 NYCRR § 766.11(c) and (d) or any successor regulation;

(iv) maintaining records for each consumer including copies of the social services district's or MMCOs authorization or reauthorization;

(v) monitoring the consumer's or, if applicable, the consumer's designated representative's continuing ability to fulfill the consumer's responsibilities under the program and promptly notifying the social services district or MMCOs of any circumstance that may affect the consumer's or, if applicable, the consumer's designated representative's ability to fulfill such responsibilities;

(vi) complying with the department's regulations at 18 NYCRR § 504.3, or any successor regulation, that specify the responsibilities of providers enrolled in the medical assistance program;

(vii) entering into a contract with the Department of Health and entering into administrative agreements with MMCOs for the provision of fiscal intermediary services; and

(viii) entering into a department approved memorandum of understanding with the consumer that describes the parties' responsibilities under the consumer directed personal assistance program.

(2) Fiscal intermediaries are not responsible for fulfilling responsibilities of the consumer or, if applicable, the consumer's designated representative. Nothing in this section shall diminish, however, the fiscal intermediary's failure to exercise reasonable care in properly carrying out its responsibilities under the program.

(k) Payment. (1) The department will pay fiscal intermediaries that are enrolled as Medicaid providers and have contracts with social services districts for the provision of consumer directed personal assistance services at rates that the department establishes and that the Director of the Division of the Budget approves.

(2) No payment to the fiscal intermediary will be made for authorized services unless the fiscal intermediary's claim is supported by documentation of the time spent in provision of services for each consumer.

(3) As authorized by paragraph (1) of this subdivision, and notwithstanding any portion of section 505.14 of this Part, the rates of reimbursement for fiscal intermediary administrative costs shall solely be made on a per consumer per month basis, with three tiers of payments. Each tier shall represent a range of authorization levels based on the number of direct care hours of consumer directed personal assistance services authorized for that consumer in a particular month and the different levels in fiscal intermediary administrative costs associated with each tier of authorization. The tiers of payment for fiscal intermediary administrative costs shall be as follows:

 

Tier	Direct Care Hours Authorized Per Month	Monthly Rate per Consumer
Tier 1	1 – 159	$145
Tier 2	160 – 479	$384
Tier 3	480+	$1,036

 

 

 

 

 

 

 

 

(4) Nothing in paragraph (3) of this subdivision shall impact wages or wage related requirements for consumer directed personal assistants nor impact the ability of Medicaid managed care organizations to reimburse fiscal intermediaries for fiscal intermediary administrative costs pursuant to their provider contracts.

(l) Immediate need.

The process for determining whether an individual may obtain consumer directed personal assistance on an immediate need basis shall be the same as such process used for the determination of whether an individual may obtain personal care services on an immediate need basis, as described in subdivision (b)(6) and (7) of section 505.14 of this part, provided that in determining eligibility for services the social services district and MMCO shall consider the eligibility and authorization requirements in this section.

(m) Prior to October 1, 2022, and notwithstanding provisions of this section to the contrary, where the Department of Health has not contracted with or designated an entity or entities to provide independent assessment and practitioner services, or where there is limited access to timely assessments and medical exams in accordance with this subdivision, as determined by and the Department of Health, then, in accordance with written direction from the Department of Health, assessments may be performed by the social services district or MMCO in accordance with the provisions of this section in effect as of January 1, 2021. The Department may limit such directive to a particular geographic region or regions based on the need for timely assessment and medical exams and may require that social service districts and MMCOs first attempt assessment and authorization pursuant to the provisions of this section currently in effect. Notwithstanding the forgoing, upon becoming effective, the provisions of paragraph (4) of subdivision (i) shall remain in effect, and may not be pended pursuant to this paragraph.