WHO MAY BE HIRED AS THE PERSONAL ASSISTANT? Changes effective APRIL 1, 2016
An adult who is not "legally responsible" for a Medicaid consumer's care and support may be a CDPAP assistant for that consumer. In particular, this means that a parent of an adult child (21 years of age or older) may serve as that adult child’s CDPAP assistant.
What is CDPAP?
The Consumer Directed Personal Assistance Program (CDPAP) is a statewide Medicaid program that provides an alternative way of receiving home care services, where the consumer has more control over who provides their care and how it is provided. Rather than assigning a home care vendor or agency that controls selection, training, and scheduling of aides, the "consumer" or the family member, friend or guardian directing his/her care performs all these functions usually done by a vendor. All counties - and now all mainstream Managed Care and Managed Long Term Care plans - are required to have a CDPAP program and notify “eligible individuals” of the option to join. Eligible individuals include those eligible for services provided by a certified home health agency, a long term home health care (waiver) program, AIDS home care program, or personal care (home attendant).
The consumer can hire almost anyone, including any family members except his or spouse. Starting April 2016, parents of disabled adult children will be to serve as CDPAP aide if they are not also the recipient's designated representative, and with restrictions on whether they may live with the consumer.
Before, spouses and parents could not be hired as the CDPAP aide, but a son or daughter or any other family member could be the aides, provided the family member does "...not reside with the consumer or ... who resides with the consumer because the amount of care the consumer requires makes such relative's presence necessary...." 18 NYCRR 505.28(b)(3). Now, only spouses are prohibited from being hired as the aides.
- STATE DIRECTIVES: NYS DOH Issued a Medicaid Update (Vol. 32 No. 3, March 2016) and GIS 16 MA/006 - Changes to the Statute for the Consumer Directed Personal Assistance Program (CDPAP) PDF explaining the new law.
A "legally responsible" adult may not be the aide. Spouses are always legally responsible for their spouse. Parents are always legally responsible for their children under age 21.
A "designated representative" of a CDPAP consumer may not be the aide. State regulations state, "...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" 18 NYCRR 505.28(b)(5)
May parent live with his or her adult child and be the child's aide? Per existing regulations, an adult relative may only be the personal assistant if s/he does "...not reside with the consumer or ... who resides with the consumer because the amount of care the consumer requires makes such relative's presence necessary...." 18 NYCRR 505.28(b)(3)
This change was signed into law on November 20, 2015, amending Social Services Law §365-f, subd. 3, L. 2015 Ch. 511, enacting Senate bill S05712-A proposed by Sen. Simcha Felder. Earlier, regulations adopted in April 2011 expanded the definition to allow an adult child or son-in-law or daughter-in-law to be hired as the aide.
Immigrants must have a valid work authorization. The aide need not be "certified" - training is done by the consumer and family.
CDPAP Aides may Perform "SKILLED" TASKS - unlike regular personal care aides
Another special benefit of CDPAP is that CDPAP aides may perform "skilled" care that otherwise may only be performed by a nurse - suctioning tracheostomies, insulin injections, administration of oxygen or medications where the consumer cannot self-administer. See N.Y. Educ. Law § 6908(1)(a) . Tasks that could not otherwise be performed by home health aides or personal care aides are indicated in the scope of tasks for personal care and home health aides.
Different Employment Model - Fiscal Intermediary vs. Home Care Agency
Fiscal Intermediaries -- The aide is not an employee of a home care agency, but is instead an independent contractor, who is paid wages and benefits by a "fiscal intermediary," an entity that contracts with either the county or a managed care plan to provide services authorized by that county or managed care plan. It is the fiscal intermediary that pays the aide wages and benefits.
List of the CDPAP "fiscal intermediaries" in NYS by county (updated May 2012). Most but not all CDPAP fiscal intermediaries are members of CDPAANYS - see also their online list statewide, which may be more recently updated for counties listed.
How to get CDPAP - Most people must obtain from their Managed Care/MLTC Plan
Effective Nov. 1, 2012, Consumer-Directed Personal Assistance Program (CDPAP) is included in the "benefit package" for both Mainstream Medicaid Managed Care and Managed Long Term Care. This change affects both people who have Medicaid only and people who have both Medicaid and Medicare ("dual eligibles").
See NYC HRA MICSA Medicaid Alert dated Oct. 26, 2012 on CDPAP and Managed Care.
People with Medicaid Only (but do not have Medicare) - STATEWIDE CHANGE -- Most are already required to enroll in a Mainstream Medicaid Managed Care (MMC) plan. Since November 2012, these mainstream Medicaid managed care plans took over the authorization and management of CDPAP services statewide, as well as personal care services.
Transition Rights - When a consumer is required to transition tp an MMC or MLTC plan, after receiving CDPAP services through their local DSS, the MMC plan is required to continue the services previously authorized by the local district (HRA or DSS) for 90 days, at which time the MMC plan re-assesses need.
New applicants for CDPAP who have Medicaid but do not have Medicare -- If they are already enrolled in a mainstream MMC plan, then they apply to their MMC plan for CDPAP. The plan must assess their needs and if the plan finds them eligible for home care services, must give them the option of choosing CDPAP. If they are not yet enrolled in a mainstream MMC plan, then they apply for CDPAP at their local CASA/DSS.
Managed Long Term Care (MLTC)-- Most adults who have both Medicaid AND Medicare are required to enroll in MLTC in order to obtain CDPAP, with few exceptions.
The State posted these documents that govern how MLTC plans must provide CDPAP services to find online, go to Medicaid Redesign Team page, scroll down to MRT 90 - MLTC and then to CDPAS Final MLTC Documents (posted around 10/1/12)
Responsibilities of the Health Plan and Consumer (acknowledgement that MLTC member must sign)
Policy for the Transition of Consumer Directed Personal Assistance Services into Managed Care
Administrative Agreement for the Provision of Fiscal Intermediary Services for the Consumer Directed Personal Assistance Program
Transition Rights - The MLTC plans must continue the same hours authorized by CASA/DSS for at least 90 days. After that they may change the hours -- but DOH has said that CMS is requiring that plans give advance notice of a change with the right to request a hearing and AID CONTINUING. As with any change, the plan must give written notice of any reduction that gives a reason for the reduction - a change in medical condition or other circumstances.
Many but not all MLTC plans have contracts with the main Consumer Directed Personal Assistance Program (CDPAP) fiscal intermediary, Concepts of Independence,
Any "dual eligible" in NYC first applying for CDPAP after 11/1/12 can no longer apply at the CASA offices. They must select an MLTC plan and ask for CDPAP through that plan.
See this update and this info on applications after 9/17/12 in NYC.
APPROVING ELIGIBILITY FOR CDPAP
Before, when all CDPAP was authorized by the NYC CASA's and LDSS offices, NYC and most counties required the consumer or the person directing their care to complete a CDPAP application, to show they are capable of arranging for and managing the care. The NYC application --Form M-13d was revised in 2010 and is posted at this link http://www.nyc.gov/html/hra/downloads/pdf/services/micsa/m_13d.pdf. Download this fill-in-able version of this form, created by Selfhelp. The NYC Medicaid program also posts these Helpful Hints on Completing the CDPAP Application. (HCSP-712d)(4-26-2010)
Under Managed Long Term Care, it is the MLTC plan that determines eligibility for CDPAP - assessing the consumer's or their representative's ability to direct and managed their own care. See Responsibilities of the Health Plan. It is not clear that MLTC plans (or mainstream MMC plans) are required to use the NYC Form M-13d or have been given other guidelines or directives on how to assess eligibility. Consumers and advocates will need to be vigilant to ensure that people who should be eligible for CDPAP are not wrongly denied. Knowledge of the laws, regulations and directives governing CDPAP developed over many years is critical. For example, GIS 08-LTC-005 clarifies that the family member or other person directing care does not have to be present at all times in which skilled nursing tasks are administered by a CDPAP aide to a non-self-directing recipient of CDPAP. We can anticipate that MLTC plans may wrongly deny CDPAP services based on lack of knowledge of these past directives.
Help with Understanding and Using CDPAP -
The Consumer-Directed Personal Assistance Program has lots of resources on its website.
- Peer Mentoring Program --CDPAANYS offers Peer Mentoring services to prospective and current CDPA consumers and designees who may have questions about the program or are seeking assistance with successfully running their own CDPA program. Peer Mentoring is always free for those who use the service. You can reach their team of Peer Mentors by calling the toll-free number, 1-855-423-7733 (1-855-4CDP-PEER), or sending an email to email@example.com. See more here.
Concepts of Independence - the largest and oldest fiscal intermediary, has tutorials and other info. on its website
BACKGROUND ON CDPAP, Laws & Regulations
This article explains the CDPAP program in NYS, with cites to state statutes (some have been amended since). Note that this article pre-dates mandatory MLTC.
The statutes establishing the CDPAP program include Section 365-f of the Social Services Law and N.Y. Educ. Law § 6908(1)(a) (also known as the Nurse Practice Act, which creates an exception that allows CDPAP aides, along with family and other unpaid informal caregivers, to perform tasks that otherwise may only be performed by licensed nurses.
The State published final regulations, effective April 20, 2011, creating a new section 28 to 18 NYCRR Part 505. See New York State Register April 20, 2011/Volume XXXIII, Issue 16 (pp. 7-8)
See December 2015 NYS Dept. of Health GIS 15 MA/024 - Changes to the Regulations for the Personal Care Services Program (PCS) and the Consumer Directed Personal Assistance Program (CDPAP) (PDF) NOTICE OF ADOPTION
The following directives have been issued since the above article was written in 2003:
Non Medical Transportation in the Consumer Directed Personal Assistance Program GIS 08-LTC-007 (issued as a result of litigation or threatened litigation, described in this article)
GIS 10 LTC 005 - Consumer Directed Personal Assistance Program (CDPAP) Documents - lists all State directives that currently apply to CDPAP in NYS as of 8/25/10
11LTC004 - Consumer Directed Personal Assistance Program (CDPAP) Services Provided Out of State
11ADM-06 - Consumer Directed Personal Assistance Program (CDPAP) Scope and Procedures (PDF, 86KB, 14pg.)
11LTC 007 - New State Law Requiring Automatic Change To No More than 8 Hours Per Week of Nutritional and Environmental Support Functions (Level I) For Personal Care and CDPAP Consumers Who Are Authorized to Receive Only Nutritional and Environmental Support Functions
12-ADM-01 - Changes to Personal Care Services Program and Consumer Directed Personal Assistance Regulations Resulting From MRT #4652
State Managed Long Term Care Contracts, Guidelines re CDPAP (Posted Oct. 1, 2012, eff. 11/1/2012)
For a history of the development of the consumer-directed program in New York City, which was a national leader in launching this form of service 33 years ago, see this article., along with:
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.