2020-21 Budget Implementation Measures On Deck Regarding Home Care

The Department of Health (DOH) provided LeadingAge NY and home care association colleagues with an overview this week of the implementation of several home care budget actions.

HCBS Lookback

The Department is working on implementing the 30-month transfer of assets lookback provision for all Community-Based Long Term Care services. This includes services relating to Adult Day Health Care (ADHC), Assisted Living Programs (ALPs), Certified Home Health Agencies (CHHAs), Personal Care Services (PCS), the Consumer Directed Personal Assistance Program (CDPAP), Limited Licensed Home Care Services Agencies (LHCSAs), Private Duty Nursing, and Managed Long Term Care (MLTC). The lookback would affect both fee-for-service (FFS) and MLTC, not mainstream managed care. This would also not affect waiver services under 1915(c) or (d).

The lookback will apply to new applications submitted on or after Jan. 1, 2021 and new requests for coverage of long term care services. Asset transfers on or after Oct. 1, 2020 will be subject to the penalty period, with the full 30-month lookback realized in April 2023. The penalty period will be calculated based on nursing home regional rates. The same asset transfer exemptions applicable to institutional care will be applied to community-based care.

Personal Care and CDPAP Proposed Regulations

The Department reviewed several components of the recently published proposed rules intended to control enrollment in MLTC and utilization of personal care CDPAP services. The regulations require those seeking personal care or CDPAP services to undergo several new levels of independent assessment/review to secure services. The Department intends to launch the new independent assessment, physician order, and physician review of high needs cases on Oct. 1, 2020.

The newly proposed rules call for Maximus to act as the new Independent Assessor (IA) through October 2022. The IA will be responsible for completing the Uniform Assessment System (UAS) Community Health Assessment (CHA) and reassessments for persons seeking PCS and CDPAP under FFS and mainstream managed care, as well as required assessments for MLTC. The regulations also require an Independent Physician Order for PCS and CDPAP. Further, for those authorized by a social services district or MLTC plan to receive 12 or more hours of PCS or CDPAP services, a Physician Review Panel will conduct a review to determine whether their plan of care is appropriate to maintain their health and safety at home.

LeadingAge NY and the other associations raised concerns about the ambitious timeline for launching such major changes and the potential impacts on consumers, especially in the context of a pandemic. LeadingAge NY is collecting input from members and has convened a work group to flesh out concerns and develop recommendations regarding this new process, how it will be operationalized, and its impact on provider and plan members and enrollees. For a summary of the proposed regulations, click here. For a preliminary list of concerns and questions regarding the regulations submitted to the Department, click here. DOH has indicated its willingness to continue to engage with stakeholders to receive input and feedback as it continues to work with stakeholders to develop workflows, notices, and communication processes.

Home Care Exchange

The Department is creating a pilot program in select counties to advance a new initiative that would build on NY State of Health's "marketplace model" to allow individuals to shop for home care services on a private pay basis. The program would launch Nov. 1, 2020 in time for the NY State of Health Open Enrollment Period and then expand statewide later in 2021. Consumers could go online to the website and search for personal care workers in their area based on need, language, etc. to get matched with certain workers. Once selected, the consumer would work with the LHCSA to arrange for an in-home or telehealth evaluation with the LHCSA. The consumer would then work with the LHCSA to secure services. An invitation will be issued to LHCSAs to participate in the program. LHCSAs licensed to service in the pilot area and meeting the program requirements will be listed on the NY State of Health website.

LHCSA Authorization Process

The enacted State Budget included a new process for selecting and contracting with LHCSAs to provide Medicaid-covered services. The Request for Proposals (RFP) process will involve an evaluation of agencies based on their ability to perform LHCSA services, past performance history, capacity to serve beneficiaries in the designated service areas, and their administrative costs/efficiencies in the delivery of LHCSA services. The Department plans to provide more details at a later date, as the contracting date for this requirement is July 1, 2021.

Wage Parity Modifications

The 2020-21 State Budget includes some significant changes to the wage parity laws that strengthen financial accountability and transparency regarding wage parity compensation for home care aides. One main provision requires agencies to ensure that funds or funds/benefits used to satisfy the requirement are fully distributed to the home care aide; unused funds will no longer be able to be returned to agencies. There are also several provisions regarding certification and penalties applicable to all plans and providers involved. Please see this memorandum, authored by LeadingAge NY counsel Hinman Straub, which provides an overview of Wage Parity Law Subsection 5-a and its implications for benefit packages currently being offered by many agencies, including self-insured and captive benefit plans. It also details new certification and reporting requirements for all providers and plans involved, including contract language to reflect compliance. The budget language also requires enhanced penalties and sanctions for noncompliance and a provision for plans to refer noncompliance to the Department.

LeadingAge NY will provide the slides for the meeting once they become available. We will continue to keep members up to date on these significant changes. Please contact our office with questions and/or concerns.

Contact: Meg Everett, meverett@leadingageny.org, 518-929-9342