The Medicaid program in New York State covers a type of home care services called Personal Care Assistance (aka PCA or "home attendant"). To obtain PCA services, a person must become eligible for Community Medicaid, and must get prior approval and a determination of the number of hours per week needed from the local Medicaid office. In New York City, there are special Medicaid offices that handle all applications for PCA services, called CASA offices.
This memo explains the basics of eligibility for Community Medicaid and the home attendant program.
Scope of Tasks
Personal Care Aides / Home Attendants may perform tasks that are not "skilled." They differ slightly from "home health aides" who provide care in Certified Home Health agencies (CHHA), in that CHHA home health aides are permitted to perform care in some cases that is semi-skilled, especially for consumers who are "self-directing." The reason is that the "certification" of a CHHA requires that the visiting nurses employed by the CHHA closely supervise the home health aides.
- Selfhelp's "Q-Tips" document (also in Spanish) has a chart comparing the scope of tasks of Personal Care Aides (PCAs) to that of CHHA Home Health Aides (HHA) at pages - see pp. 5-7.
- Aides in the Consumer Directed Personal Assistance Program are not bound by these restrictions, and may perform tasks that would otherwise be considered "skilled" and could only be performed by nurses or unpaid family or friends.
Eligibility
Individual must be:
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Self-directing or have someone able to direct their care. 92 ADM-49 clarifies that the person directing care does not need to reside with the consumer but must have "substantial daily contact." http://onlineresources.wnylc.net/pb/docs/92_adm-49.pdf
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The patient’s condition must be stable, meaning that it may be may be chronic and degenerative but is not expected to exhibit sudden deterioration or improvement; AND does not require skilled professional or frequent medical or nursing judgment to determine changes to the plan of care. 18 NYCRR 505.14(a)(4)(i).
A common basis for denial of eligibility is that the consumer allegedly needs a "higher level of care" than personal care. If the two above criteria are met, and the consumer does not need the aide to perform tasks beyond the personal care scope of tasks described above, then eligibility should be established -- it may require a hearing.
In NYC, a family member, friend, or guardian who agrees to "direct care," or to perform any skilled task such as pre-pouring a medication box, should indicate this agreement on Form HCSP-2131 Agreement to Participate in Plan of Care.
Applications
One needs two applications for this service -- a regular Medicaid application to show financial eligibility, immigration status, etc. and a separate application to be approved for the personal care service. In most districts including NYC, one applies for approval of the service by submitting a Physician's Order, completed by the client's treating physician. In NYC, this is known as the Form M11q.
Legal Authority
Key litigation, statutes and regulations on Medicaid personal care and other home care services in New York State are listed in this document.
The state regulation for Medicaid personal care services was partially amended effective on 10/4/11 (published in NYS Register Oct. 19. 2011 p. 33), which expired 90 days after filing and then was republished as an emergency regulation effective 12/30/2011. See December 30, 2011 - Personal Care Services Program and Consumer Directed Personal Assistance Program. That regulation again expired, but was re-filed effective March 29, 2012, when an amended emergency regulation was filed that changed the word to “may consult.” (not published in State Register as of April 10, 2012). See http://www.dos.ny.gov/info/register/2012.html See full regulation at 18 NYCRR § 505.14 - updated with changes through March 29, 2012).
- The amendment changed the definition of "continuous personal care services," in 505.14(a)(3) also known as "split shift" to mean
NEW "... the provision of uninterrupted care, by more than one person, for more than 16 hours per day for a patient who, because of the patient’s medical condition and disabilities, requires total assistance with toileting, walking, transferring or feeding at times that cannot be predicted."
OLD definition was "... the provision of uninterrupted care, by more than one person, for a patient who, because of his/her medical condition and disabilities, requires total assistance with toileting and/or walking and/or transferring and/or feeding [at unscheduled times during the day and night]"
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The amendment added a new definition of live-in or sleep-in care, as a new 505.14(a)(5), defined as "... the provision of care by one person for a patient who, because of the patient’s medical condition and disabilities, requires some or total assistance with one or more personal care functions during the day and night and whose need for assistance during the night is infrequent or can be predicted."
- Additionally, the regulation adds, "When live-in 24-hour personal care services is indicated, the social assessment
shall evaluate whether the patient’s home has adequate sleeping accommodations for a personal care aide. 505.14(b)(3)(ii)(c).
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The definitions of "some" and "total" assistance are unchanged. 505.14(a)
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The regulation adds a requirement that (5) an evaluation whether adaptive or specialized equipment or supplies including,
but not limited to, bedside commodes, urinals, walkers and wheelchairs, can meet the patient’s need for assistance with personal care functions, and whether such equipment or supplies can be provided safely and cost-effectively.
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The series of emergency regulations effective from Oct. 4, 2011 through March 28, 2012 required that the "The local professional director or designee ["Local Medical Director"] shall consult with the patient’s treating physician and may conduct an additional assessment of the patient in the home. 505.14(b)(4)(ii). Effective March 29, 2012, this was amended to state only that the Local Medical Director may consult with the patient’s treating physician and may conduct an additional assessment of the patient in the home.
Litigation has established important procedural rights and assessment standards on personal care, including:
- No district may reduce or terminate personal care services without meeting its burden of proof to show a change in the individual's medical condition or circumstances justifies the reduction, or that a mistake was made in the original authorization, and certain other limited reasons. 18 NYCRR 505.14(b)(5)(c). (page 9-b of link)
- In Task-Based Assessment:
- Although "safety monitoring" does not have to be authorized as a "stand alone" task if no other personal care assistance is needed, as held in Rodriguez vs. City of New York, 197 F.3d 611 (2d Cir. Oct. 6,1999), local Medicaid districts must authorize "the appropriate monitoring of the patient while [a personal care aide is] providing assistance with the performance of a Level II personal care services task, such as transferring, toileting, or walking, to assure the task is being safely completed." NYS DOH GIS 03 MA/003 .
- Individuals in NYC have the right to a determination of the "span of time" during which the needs for assistance with ambulation, toileting, and transfer arise. This is provided for in the NYC HRA Nurse's Assessment form (M-27r) (page 4) and its accompanying HRA instructions, which were adopted pursuant to an agreement with the NYC defendant in Rodriguez, which culminated in a Stipulation of Settlement and Order of Dismissal, dated January 9, 2003, in which NYC agreed to consider unscheduled and recurring needs and the span of time during which they occur. (available in WNYLC Online Resource Center Benefits Law database (must log-in, registration is free).
- In Nassau County, the County agreed in Rodriguez to revise certain assessment forms and instructions “to identify clients with unscheduled needs (such as toileting, transferring, and/or ambulating) and/or recurring needs (such as feeding, assistance with medication, etc.) to ensure a plan of care that will meet these needs.” (Departmental Memo to all assessing and reviewing nurses and medical directors from Rita Nolan, Dir, Medical Services, dated May 24, 2004). The Task-Oriented Plan of Care now says that the recommended hours and days “must allow for unscheduled and/or recurring needs.” The reviewing nurse must justify how the total task-based time is sufficient to meet needs with toileting, ambulation, transferring, feeding, meal prep or assistance with meds.
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Statewide, no local district may use task-based assessment if the individual needs 24-hour care, even if some of that care is provided by informal caregivers. This aspect of Mayer v. Wing is codified in regulation at 18 NYCRR 505.14(b)(5)(v)(d). (p. 9-10 of link). This is known as the "Mayer-3" exception to task-based assessment.
FAIR HEARINGS -- Hearings are often required to obtain an increase in hours of personal care/home attendant services, to contest denials of applications based on the alleged need for a "higher level of care," etc.
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Many fair hearing decisions are posted by advocates on the WNYLC Online Resource Center on the Western New York Law Center website. For access, register and "log in" and select "Fair Hearings" tab to access the database. The database is partly searchable -- by keywords used by advocates when the post decisions, but not by the entire decision.
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This Digest of Medicaid Fair Hearing Home Care Decisions is another way of identifying hearing decisions that may be helpful to show a roadmap for preparing for a hearing, or to cite as precedent at a fair hearing.
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IN 2011, NYS Office of Temporary & Disability Assistance began posting all fair hearing decisions, in redacted, format on a searchable website at http://www.otda.ny.gov/oah/FHArchive.asp. The decisions will be taken down after approximately 2 years.
Articles on Demographics & Service Patterns of Personal Care Service Population
Medicaid Personal Care in New York City: Service Use and Spending Patterns, (Medicaid Institute at United Hospital Fund, December 2010) http://www.uhfnyc.org/publications/880720 -- takes two distinct looks at one group of personal care recipients, elderly dual Medicare-Medicaid beneficiaries in New York City
Medicaid Long-Term Care in New York: Variation by Region and County, (Medicaid Institute at United Hospital Fund, December 2010) http://www.uhfnyc.org/publications/880719 -- analyzes rates of service use and levels of spending per recipient across New YorkState, documenting variation by region and by county. It also examines four interrelated factors—demographics, reimbursement policies, availability of service, and local administration—to begin to explain regional variation.
Alene Hokenstad, An Overview of Medicaid Long-Term Care Programs in New York, (Medicaid Institute at United Hospital Fund, May 2009) A comprehensive report on Medicaid long-term care programs in New York, which serve 247,000 Medicaid beneficiaries each month and account for roughly one quarter of all Medicaid spending. Care for these beneficiaries can be intensive and costly. Created to inform discussions among New York’s policymakers, health care stakeholders, and community advocates, the report provides an overview of the current organization of long-term care services under New York’s Medicaid program, a September 2007 snapshot of program enrollment and associated annual spending, and a summary of the rules that govern how each program operates. The report also identifies policy options for addressing the key challenges facing the state as it looks at options to better serve New York’s frail seniors and adults with physical disabilities through its 12 long-term care programs. http://www.uhfnyc.org/publications/880507
This article was authored by the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc.
