NEWS FLASH - Coming APRIL 2016 - parents of disabled adult children will be to serve as CDPAP aide if they are not also the recipient's designated representative. Click here for more information and see this article in Democrat & Chronicle, Nov. 25, 2015.
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).
NEWS NOVEMBER 2015! -- WHO CAN BE HIRED AS THE CDPAP AIDE-- 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. 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.
State regulations now prohibit only the spouse or parent from being hired as the CDPAP aide, but allow a son or daughter or any other family member, 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). 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 -- 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.
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.
Nov. 1, 2012 CHANGES: CDPAP NOW ACCESSED THROUGH MANAGED LONG TERM CARE (MLTC) and "MAINSTREAM" MEDICAID MANAGED CARE (MMC) PLANS -- Changes in How to apply for CDPAP in NYC and some other counties
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. In August 2011, these mainstream Medicaid managed care plans took over the authorization and management of personal care a/k/a home attendant services statewide, affecting about 5800 people who were already receiving personal care/home attendant services through their CASAs or local departments of social services (DSS). See this article. At that time, CDPAP recipients were not affected and continued to receive CDPAP from CASA/ local DSS, not their mainstream MMC plan. Now, on November 1, 2012, the MMC plans will take over authorization and management of CDPAP services too.
Current Mainstream Medicaid Managed Care enrollees who have been receiving CDPAP services through CASA or their LDSS in any county statewide -- As of Nov. 1, 2012 their Medicaid managed care plan takes over their CDPAP services. The MMC plan is required to contract with the "fiscal intermediary" providing their CDPAP services until 10/31/13. In NYC, the fiscal intermediaries are CONCEPTS and CHINESE-AMERICAN PLANNING COUNCIL). Statewide list here. The MMC plan is required to continue the services previously authorized by the local district (HRA or DSS) until the MMC plan re-assesses need. We think they must continue services for at least 60 days.
Current CDPAP recipients who are not enrolled in a mandatory MMC plan, even though they do not have MEDICARE. There are still some people who have Medicaid-only and are not yet enrolled in a Medicaid MMC plan, either because they are exempt or excluded from Mandatory MMC, or because they have yet to receive their mandatory enrollment package, which are sent out on a gradual roll-out schedule. They should continue receiving CDPAP services through the CASA or LDSS.
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)-- People who have both Medicaid AND Medicare
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
Dual Eligibles Already Receiving CDPAP recipients in NYC, NASSAU, SUFFOLK, and WESTCHESTER are receiving letters giving them 60 days to select an MLTC plan (NYC since 11/1/12, the other counties since 1/1/13). If they have not selected a plan, they will be auto-assigned to a plan on a random basis effective the 1st of the month after the 60-day period ends. The MLTC plans must contract with existing CDPAP providers in the county (CONCEPTS and Chinese-American Planning Council in NYC) through 10/31/13 so consumers can keep their current aides. The MLTC plans must continue the same hours authorized by CASA/DSS for at least 60 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 of 11/3/12 this has not been stated in writing.
As a practical matter, not every MLTC plan has entered contracts with every single home attendant vendor in NYC. As of Feb. 7, 2013, the main Consumer Directed Personal Assistance Program (CDPAP) vendor, Concepts of Independence, for example, has reportedly finalized contracts only with the following MLTC plans, with more in the pipeline: MLTC plans -- AgeWell, CenterLight Health Plan, Guildnet, Fidelis, Independence Care System.
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.
Outside these counties, MLTC is not yet mandatory. But if someone is already voluntarily enrolled in an MLTC plan in counties outside the mandatory areas, the MLTC plan will take over authorization of the CDPAP services from the local DSS. New applications for CDPAP may still be filed with the local DSS outside of NYC, since MLTC is not yet mandatory. People outside of NYC who are in MLTC may disenroll from the MLTC plan and request CDPAP or other personal care services from their local DSS.
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.
BACKGROUND ON CDPAP. 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.
Laws, Regulations and Directives Governing CDPAP
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)
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.