- February 28, 2024
- Alerts
Governor Hochul Proposes Significant Changes to CDPAP and to LHCSA Enrollment in Medicaid
By:
James E. Dering
Governor Hochul’s 30-day Amendments to her proposed state fiscal year 2025 Executive Budget would significantly change New York State’s (NYS) Consumer Directed Personal Assistance Program (CDPAP) and what licensed home care services agencies (LHCSAs) can enroll or re-enroll in Medicaid.
The proposed budget would amend Social Services Law (SSL) § 365-f by eliminating the CDPAP request for offers (RFO) procurement process currently in place for designating fiscal intermediaries (FIs). That process would be replaced by provisions granting the NYS Commissioner of Health (Commissioner) power to authorize entities to provide FI services based on a process and standards to be set by the Commissioner. The definition of an FI under SSL §365-f would change to an entity that has a contract to provide FI services with a local department of social services (LDSS), health maintenance organization (HMO), an accountable care organization (ACO) or an integrated delivery system/performing provider system (PPS). Also, the Commissioner could determine the maximum number of FIs with which each LDSS, HMO, ACO or PPS could contract.
Under the proposal, as of January 1, 2025, no entity could provide FI services without authorization from the Commissioner. However, entities that began providing FI services prior to January 1, 2024 could continue to do so without an authorization until such time as the Commissioner determines that the continued provision of services through unauthorized FIs is no longer necessary to ensure access to services. The Commissioner could make such determinations on a statewide, regional or county basis.
The proposal also limits one of the CDPAP consumer eligibility provisions to individuals who are able and willing to make informed choices regarding the type and quality of services they receive, deleting existing eligibility language for individuals who have a designated representative, including a legal guardian, who is willing and able to make informed choices, or a designated relative or other adult who is willing and able to assist in making informed choices. The proposal removes assisting consumers in performing their responsibilities under CDPAP from the list of services that FIs provide. It also authorizes the Commissioner to limit the number of hours a personal assistant can work on a daily or weekly basis and to set selection criteria and training requirements for them.
In addition, among other things, the proposal would amend Public Health Law § 3605-c by placing prohibitions on common ownership of FIs and LHCSAs. Specifically, it would not allow a LHCSA to enroll or re-enroll in the Medicaid program on or after April 1, 2024 if the LHCSA (i) is majority owned by a company that provides FI services; (ii) is majority owned by a company that also has majority ownership over a company that provides FI services; (iii) itself provides FI services; or (iv) is the majority owner of a company that provides FI services. “Majority owned” is defined as a “controlling interest in a company, or being the largest holder of the common stock or ordinary shares of a company.”
If enacted into law, the Governor’s proposal would significantly change the CDPAP program and terminate the ability of many LHCSAs to be enrolled in Medicaid. The proposal, and how the NYS Department of Health would implement it, create many uncertainties. We will continue to monitor the progress of the Governor’s proposal which can be found in full here.
Should you have any questions regarding the above, please contact the author, the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.
The proposed budget would amend Social Services Law (SSL) § 365-f by eliminating the CDPAP request for offers (RFO) procurement process currently in place for designating fiscal intermediaries (FIs). That process would be replaced by provisions granting the NYS Commissioner of Health (Commissioner) power to authorize entities to provide FI services based on a process and standards to be set by the Commissioner. The definition of an FI under SSL §365-f would change to an entity that has a contract to provide FI services with a local department of social services (LDSS), health maintenance organization (HMO), an accountable care organization (ACO) or an integrated delivery system/performing provider system (PPS). Also, the Commissioner could determine the maximum number of FIs with which each LDSS, HMO, ACO or PPS could contract.
Under the proposal, as of January 1, 2025, no entity could provide FI services without authorization from the Commissioner. However, entities that began providing FI services prior to January 1, 2024 could continue to do so without an authorization until such time as the Commissioner determines that the continued provision of services through unauthorized FIs is no longer necessary to ensure access to services. The Commissioner could make such determinations on a statewide, regional or county basis.
The proposal also limits one of the CDPAP consumer eligibility provisions to individuals who are able and willing to make informed choices regarding the type and quality of services they receive, deleting existing eligibility language for individuals who have a designated representative, including a legal guardian, who is willing and able to make informed choices, or a designated relative or other adult who is willing and able to assist in making informed choices. The proposal removes assisting consumers in performing their responsibilities under CDPAP from the list of services that FIs provide. It also authorizes the Commissioner to limit the number of hours a personal assistant can work on a daily or weekly basis and to set selection criteria and training requirements for them.
In addition, among other things, the proposal would amend Public Health Law § 3605-c by placing prohibitions on common ownership of FIs and LHCSAs. Specifically, it would not allow a LHCSA to enroll or re-enroll in the Medicaid program on or after April 1, 2024 if the LHCSA (i) is majority owned by a company that provides FI services; (ii) is majority owned by a company that also has majority ownership over a company that provides FI services; (iii) itself provides FI services; or (iv) is the majority owner of a company that provides FI services. “Majority owned” is defined as a “controlling interest in a company, or being the largest holder of the common stock or ordinary shares of a company.”
If enacted into law, the Governor’s proposal would significantly change the CDPAP program and terminate the ability of many LHCSAs to be enrolled in Medicaid. The proposal, and how the NYS Department of Health would implement it, create many uncertainties. We will continue to monitor the progress of the Governor’s proposal which can be found in full here.
Should you have any questions regarding the above, please contact the author, the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.