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Medicaid Personal Care or Home Attendant Services
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.
Beginning August 1, 2011, Medicaid recipients enrolled in Medicaid managed care must get PCA services through their managed care plans. The State Department of Health (DOH) has issued new guidelines that include instructions on how consumers should request PCA services from their plans. NYSDOH Guidelines to Personal Care Services in Medicaid Managed Care.
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.
Individual must be:
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.
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.
Key litigation, statutes and regulations on Medicaid personal care and other home care services in New York State are listed in this document.
The 2011 state budget amended Social Services Law sec. 365-a, subd. 2(e) to add (e)(ii):
(ii) the commissioner (of health) is authorized to adopt standards, pursuant to emergency regulation, for the provision and management of services available under this paragraph for individuals whose need for such services exceeds a specified level to be determined by the commissioner.”
Regulation changes beginning in October, 2011. As authorized by the 2011 statute quoted above, DOH has issued a series of emergency regulations which change the standards for authorizing 24-hour care, both sleep-in care and split-shift "continuous" care in 18 NYCRR 505.14. Because the regulations are issued as emergency regs, they must re-file them every 60 days. See n 1 on State Administrative Procedure Act. Note that all of the emergency re-filings have been identical in language except for one thing -- whether the Local Medical Director must consult with the treating physician. The substance of the changes are discussed below. Here are the emergency reg cites in chronological order -- See full regulation at 18 NYCRR § 505.14 - updated with changes through March 29, 2012, which are unchanged as of July 23, 2012).
Changes made by the emergency regulations in 2011-14
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]"
Sept. 2012 -- SEE Federal Court Issues Preliminary Injunction against NYC HRA in Reducing 24-hour Split-Shift Medicaid Personal Care Services which enjoins NYC from reducing 2x12 split shift services because needs cannot be predicted.
Litigation has established important procedural rights and assessment standards on personal care, including:
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.
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
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
Info provided courtesy of Gene Doyle, LMSW
When regulations are filed on an emergency basis, they have an initial life span of 90 days. When, as in this case, regulations are repeatedly filed on an emergency basis, each subsequent filing is good for only 60 days. See State Administrative Procedure Act (SAPA) § 202.
In order to adopt regulations on a permanent basis, a Notice of Proposed Rule Making must be published in the New York State Register and must afford a minimum 45 day period for submission of public comments.
In each of the Notices of Emergency Rule Making that the New York State Department of Health (DOH) has filed, there is a paragraph immediately following the regulatory text which reads:
This notice is intended to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire . . . . [by x date]
DOH will continue this 60-day emergency rulemaking dance until a Notice of Proposed Rulemaking and a Notice of Adoption are published. Once the Notice of Proposed Rulemaking is published, the 45-day comment period will begin. See SAPA § 202(a).
DOH website posts its emergency regulations at:http://www.health.ny.gov/regulations/emergency/ and its proposed regulations here. Recently adopted regulations (within the last six months) can be found at: http://www.health.ny.gov/regulations/recently_adopted/ .
This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.