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Medicaid Personal Care or Home Attendant Services

Views: 72236
Posted: 01 Aug, 2008
by David Silva (Community Service Society)
Updated: 02 Apr, 2014
by Valerie Bogart (New York Legal Assistance Group)

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.

NEWS FLASH Sept. 4, 2012 --  Federal Court Issues Preliminary Injunction against NYC HRA in Reducing 24-hour Split-Shift Medicaid Personal Care Services

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:

  • 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 

  • 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 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).

  1. Oct. 4, 2011 (published in NYS Register Oct. 19. 2011 p. 33), which expired 90 days after filing 

  2. December 30, 2011- emergency regulation again scheduled to expire

  3. March 29, 2012 emergency regulation published in State Register on April 18, 2012.  Again scheduled to expire. This one made a substantive change from the earlier emergency regs, no longer requiring  the Local Medical Director to consult with the treating physician.   

  4. July 18, 2012 -- emergency reg will expire in 60 days or September 24, 2012.  No changes from Mar. 29, 2012 regulation  publication.   See full regulation at 18 NYCRR § 505.14 incorporating all changes. 

  5. Sept. 24, 2012 - emergency reg again  filed -- September 24, 2012 - Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP) . \

  6. March 14, 2014 - Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)  --emergency regulation -- will be published in the State Register on the third Wednesday following the effective date. Initial emergency regulations are generally effective from the date of filing for 90 days.

Changes made by the emergency regulations in 2011-14

  • 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]" 

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. 

Oct. 3, 2012 - DOH Issues GIS 12 MA/026implementing injunction clarifying interpretation of 2011 regulations changing split-shift eligibility.

  • 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).  
  • The definitions of "some" and "total" assistance are unchanged.   505.14(a)   But see Federal Court Issues Preliminary Injunction against NYC HRA in Reducing 24-hour Split-Shift Medicaid Personal Care Services  which addresses the impact of this distinction..

  • 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.  

  • Whether the Local Medical Director must consult with the Treating Physician -- 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. 

    • FAIR HEARING STRATEGY TIP:  If HRA or other local district's determination that you are appealing is between Oct. 4, 2011 and March 28, 2012,  cite this regulation as a basis for reversal if the local medical director did not consult with the treating physician.   Many fair hearing decisions have been issued on this ground. 

Litigation has established important procedural rights and assessment standards on personal care, including:

  • 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.
       
    • 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.   

  • 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.   

  • 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.  

  • 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

FN 1.  Note on State Administrative Procedure Act

Info provided courtesy of Gene Doyle, LMSW
People Organized for Our Rights, Inc. (P.O.O.R.)

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[6].

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[1](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.

NYLAG

Attached files
file 18 NYCRR Notice Rulemaking 12-30-2011.pdf (91 kb)
file home_health_aide_scope_of_tasks DOH 06.pdf (163 kb)
file Home Care Fair Hearing Digest.2.doc (886 kb)
file Medicaid Home Care - List of Court Decisions, Laws and Regulations.pdf (178 kb)
file Personal Care Aide Scope of Practice 12 94.pdf (475 kb)
file Medicaid Basic - 2013.pdf (224 kb)
file Q-TIPS 4-10.pdf (155 kb)
file Q-tips_Esp.pdf (64 kb)
file Nurses Assessment Visit report used in NYC.PDF (365 kb)
file HRA Instructions M27r 2002.pdf (562 kb)
file Miller v. Bernstein.pdf (208 kb)
file 18-NYCRR-505.14 amended 3-29-2012.pdf (136 kb)
file MAP-2131 Agreement to Participate in Plan of Care.pdf (34 kb)
file NYSDOH Guidelines for Personal Care Services in Medicaid Managed Care.pdf (247 kb)

Also read
document Medicaid Reimbursement of Home Care and other Medical Expenses
document CASA Contact List - NYC
document Applying for Medicaid Personal Care Services Outside NYC
document Medicaid Consumer Directed Personal Assistance Program (CDPAP) in New York State
document Managed Long Term Care
document New Application Form (2010) Used for Medicaid, Child Health Plus and Family Health Plus in New York State
document Medicaid Home-and-Community-Based Waiver Programs in New York State
document KNOW YOUR RIGHTS: Fact Sheet Explaining Basic Rules on NYS Financial Medicaid Eligibility for People who are Disabled, Aged 65+, or Blind
document State Rescinds Directive that Banned Use of Pooled Trusts for Married Couples where One Spouse is in a Managed Long Term Care Plan - Pending Clarification from CMS
document "FIDA (Fully-Integrated Dual Advantage)" - Managed Care Expansion for Dual Eligibles in NYC Metro Area - Delayed Until Jan. 2015
document Tools for Choosing a Medicaid Managed Long Term Care Plan
document State Takes Steps to Implement Court Order Requiring Temporary Personal Care Services while Medicaid Application is Pending

External links
Home Health Aide Scope of Tasks (NYS DOH)
http://www.health.state.ny.us/health_care/medicaid/publications/pub1996gis.htm

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The Various Types of Medicaid Home Care in New York State     Applying for Medicaid Personal Care Services in New York City -...


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