2015 New York Laws
SOS - Social Services
Article 5 - ASSISTANCE AND CARE
Title 11 - (363 - 369) MEDICAL ASSISTANCE FOR NEEDY PERSONS
365-F - Consumer directed personal assistance program.

 365-f. Consumer directed personal assistance program. 1. Purpose and
  intent. The consumer directed personal assistance program is intended to
  permit  chronically ill and/or physically disabled individuals receiving
  home  care  services  under  the  medical  assistance  program   greater
  flexibility  and  freedom  of  choice  in  obtaining  such services. The
  department shall regularly monitor district participation in the program
  by  reviewing  the  implementation  plans  submitted  pursuant  to  this
  section.  The  department  shall  provide  guidance  to the districts to
  improve compliance with implementation  plans  and  promote  consistency
  among   counties   regarding   approved  service  levels  based  on  the
  assessments required by this section. In addition, the department  shall
  provide  technical  assistance  and  such  other  assistance  as  may be
  necessary to assist such districts in assuring access to the program for
  eligible individuals.
2. Eligibility. All eligible individuals receiving home care shall  be
  provided  notice  of  the  availability  of  the  program,  and  no less
  frequently than annually thereafter, and shall have the  opportunity  to
  apply  for  participation  in the program. Each social services district
  shall  file  an  implementation  plan  with  the  commissioner  of   the
  department  of  health,  which  shall  be updated annually. Such updates
  shall be submitted no  later  than  November  thirtieth  of  each  year.
  Beginning  on  June  thirtieth, two thousand nine, the plans and updates
  submitted by districts shall require the  approval  of  the  department.
  Implementation plans shall include district enrollment targets, describe
  methods  for  the  provision  of  notice  and  assistance  to interested
  individuals eligible for enrollment in the program,  and  shall  contain
  such  other  information  as  shall  be  required  by the department. An
  "eligible individual", for purposes of this section is a person who:
(a) is eligible  for  long  term  care  and  services  provided  by  a
  certified home health agency, long term home health care program or AIDS
  home  care  program  authorized  pursuant  to  article thirty-six of the
  public health law, or is eligible for personal  care  services  provided
  pursuant to this article;
(b) is eligible for medical assistance;
* (c) has been determined by the social services district, pursuant to
  an assessment of the person's appropriateness for the program, conducted
  with an appropriate long term home health care program, a certified home
  health  agency, or an AIDS home care program or pursuant to the personal
  care program, as being in need of home care  services  or  private  duty
  nursing and is able and willing or has a legal guardian able and willing
  to  make  informed  choices, or has designated a relative or other adult
  who is able and willing to assist in making informed choices, as to  the
  type and quality of services, including but not limited to such services
  as nursing care, personal care, transportation and respite services; and
* NB Effective until April 1, 2016
* (c) has been determined by the social services district, pursuant to
  an assessment of the person's appropriateness for the program, conducted
  with an appropriate long term home health care program, a certified home
  health  agency, or an AIDS home care program or pursuant to the personal
  care program, as being in need of home care  services  or  private  duty
  nursing  and  is  able  and  willing or has a designated representative,
  including a legal guardian able and willing to make informed choices, or
  a designated relative or other adult who is able and willing  to  assist
  in  making  informed  choices,  as  to the type and quality of services,
  including but not limited to such services  as  nursing  care,  personal
  care, transportation and respite services; and
* NB Effective April 1, 2016

(d)   meets  such  other  criteria,  as  may  be  established  by  the
  commissioner,  which  are  necessary  to   effectively   implement   the
  objectives of this section.
* 3.  Division  of responsibilities. Eligible individuals who elect to
  participate in the program assume the responsibility for services  under
  such  program  as  mutually  agreed  to  by  the eligible individual and
  provider and as documented in the  eligible  individual's  record.  Such
  individuals  shall  be  assisted  as  appropriate with service coverage,
  supervision, advocacy and management. Providers shall not be liable  for
  fulfillment  of responsibilities agreed to be undertaken by the eligible
  individual.  This  subdivision,  however,   shall   not   diminish   the
  participating  provider's  liability  for failure to exercise reasonable
  care in properly carrying out its responsibilities under  this  program,
  which  shall  include monitoring such individual's continuing ability to
  fulfill those responsibilities documented in his or her records. Failure
  of the individual to carry out his or her agreed to responsibilities may
  be considered in determining such individual's continued appropriateness
  for the program.
* NB Effective until April 1, 2016
* 3. Division of responsibilities. Eligible individuals who  elect  to
  participate  in the program assume the responsibility for services under
  such program as mutually  agreed  to  by  the  eligible  individual  and
  provider   and  as  documented  in  the  eligible  individual's  record,
  including, but not limited to, recruiting, hiring and supervising  their
  personal   assistants.  For  the  purposes  of  this  section,  personal
  assistant shall mean an adult who provides services under  this  section
  to  the eligible individual under the eligible individual's instruction,
  supervision and direction or  under  the  instruction,  supervision  and
  direction   of  the  eligible  individual's  designated  representative,
  provided that a person legally responsible for an eligible  individual's
  care   and  support,  an  eligible  individual's  spouse  or  designated
  representative may not  be  the  personal  assistant  for  the  eligible
  individual;  however,  a  personal assistant may include any other adult
  relative of the eligible individual, provided, however, that the program
  determines that the services provided by such  relative  are  consistent
  with  an  individual's plan of care and that the aggregate cost for such
  services does not exceed the aggregate  costs  for  equivalent  services
  provided by a non-relative personal assistant. Such individuals shall be
  assisted as appropriate with service coverage, supervision, advocacy and
  management.   Providers   shall   not   be  liable  for  fulfillment  of
  responsibilities agreed to be undertaken  by  the  eligible  individual.
  This   subdivision,   however,  shall  not  diminish  the  participating
  provider's liability for failure to exercise reasonable care in properly
  carrying out  its  responsibilities  under  this  program,  which  shall
  include monitoring such individual's continuing ability to fulfill those
  responsibilities  documented  in  his  or  her  records.  Failure of the
  individual to carry out his or her agreed  to  responsibilities  may  be
  considered  in  determining  such individual's continued appropriateness
  for the program.
* NB Effective April 1, 2016
4. Participating providers. All agencies or individuals who  meet  the
  qualifications to provide home health, personal care or nursing services
  and  who  elect  to  provide  such services to persons receiving medical
  assistance may participate in the program.  Any  agency  or  individuals
  providing  services under a patient managed home care program authorized
  under the former section thirty-six hundred  twenty-two  of  the  public
  health  law  or  the  former sections three hundred sixty-five-f of this
  chapter may continue to provide such services under this section.

5. Waivers, regulation and effectiveness.
(a)  The  commissioner may, subject to the approval of the director of
  the budget, file for such federal waivers  as  may  be  needed  for  the
  implementation of the program.
(b)  Notwithstanding  any  other provision of law, the commissioner is
  authorized to waive any provision of section three hundred sixty-seven-b
  of  this  title  related  to  payment  and  may  promulgate  regulations
  necessary to carry out the objectives of the program, and which describe
  the responsibilities of the eligible individuals in arranging and paying
  for  services  and  the protections assured such individuals if they are
  unable or no longer desire to continue in the program.
6. Notwithstanding any inconsistent provision of this section  or  any
  other  contrary  provision  of  law,  managed  care programs established
  pursuant to section three hundred sixty-four-j of this title and managed
  long term care plans and  other  care  coordination  models  established
  pursuant  to  section  four  thousand four hundred three-f of the public
  health law shall offer consumer directed personal assistance programs to
  enrollees.
7. This section shall be effective if, to the extent that, and as long
  as,  federal  financial  participation  is  available  for  expenditures
  incurred under this section.
8. Subject to the availability of federal financial participation, the
  provisions   of   this  section  governing  consumer  directed  personal
  assistance services shall also apply to such services when offered under
  the home and community-based attendant services and supports state  plan
  option (Community First Choice) pursuant to 42 U.S.C.  1396n(k).
9.  Notwithstanding  any  contrary provision of law and subject to the
  availability of federal financial  participation,  for  periods  on  and
  after April first, two thousand fourteen, the commissioner is authorized
  to   make  temporary  periodic  lump-sum  Medicaid  payments  to  fiscal
  intermediaries  principally  engaged  in  providing  consumer   directed
  personal  assistance  services  to Medicaid patients, in accordance with
  the following:
(a) eligible fiscal intermediaries shall include:
(i) providers undergoing  closure  or  substantial  reduction  in  the
  volume of care;
(ii) providers impacted by the closure of other health care providers;
(iii)  providers  subject  to mergers, acquisitions, consolidations or
  restructuring;
(iv) providers impacted by the merger, acquisition,  consolidation  or
  restructuring of other health care providers;
(v)  providers  seeking to ensure that access to care is maintained or
  increased; or
(vi) on or  after  January  first,  two  thousand  fifteen,  providers
  impacted  by  changes to the Fair Labor Standards Act requiring overtime
  pay for personal assistants working in excess of forty hours per week.
(b) providers seeking Medicaid payments under this  subdivision  shall
  demonstrate through submission of a written proposal to the commissioner
  that  the  additional  resources provided by such Medicaid payments will
  achieve one or more of the following:
(i) protect or enhance access to care;
(ii) protect or enhance quality of care;
(iii) improve the cost effectiveness of the delivery  of  health  care
  services; or
(iv)  otherwise protect or enhance the health care delivery system, as
  determined by the commissioner.
(c)(i) Such written proposal shall be submitted to the commissioner at
  least sixty days prior to the requested commencement  of  such  Medicaid

  payments and shall include a proposed budget to achieve the goals of the
  proposal.  Any  Medicaid  payments  issued  pursuant to this subdivision
  shall be made over a specified period of  time,  as  determined  by  the
  commissioner,  of  up  to  three  years.  At  the  end  of the specified
  time-frame such payments shall cease. The commissioner may establish, as
  a condition of receiving such Medicaid payments, benchmarks and goals to
  be achieved in  conformity  with  the  provider's  written  proposal  as
  approved  by  the  commissioner  and  may also require that the provider
  submit  such  periodic  reports  concerning  the  achievement  of   such
  benchmarks  and  goals  as  the commissioner deems necessary. Failure to
  achieve satisfactory progress, as determined  by  the  commissioner,  in
  accomplishing  such benchmarks and goals shall be a basis for ending the
  provider's  Medicaid  payments  prior  to  the  end  of  the   specified
  timeframe.
(ii) The commissioner may require that applications submitted pursuant
  to this subdivision be submitted in response to and in accordance with a
  request  for  applications  or  a  request  for  proposals issued by the
  commissioner.