DOH Revises Proposed Personal Care/CDPAS Independent Assessment Regulations

The Department of Health (DOH) has published revised proposed regulations governing independent assessments (IAs) and eligibility for personal care services (PCS) and Consumer Directed Personal Assistance Services (CDPAS) covered by Medicaid. Initially published in August 2020, the regulations arise out of legislation enacted under the State Fiscal Year (SFY) 2020-21 budget as a result of the Medicaid Redesign Team II (MRT II) process. The revisions clarify most of the questions and address many of the points raised by LeadingAge NY in its comments. The key revisions to the initial proposed regulations include the following provisions:

IA mistakes and clinical disagreements will be subject to separate resolution processes (see below).
The IA, independent medical examination (IME), and independent review panel (IRP) processes will not apply to Programs of All-Inclusive Care for the Elderly (PACE) because they conflict with federal regulations governing these programs. However, DOH is still considering whether PCS and CDPAS authorized by PACE programs should be subject to minimum needs criteria and will issue subsequent guidance informed by federal rules.
New minimum needs eligibility requirements do not apply to individuals who have been assessed and authorized for PCS or CDPAS prior to the effective date of these regulations.
The IA, IME, and IRP may use telehealth modalities, but the beneficiary must be given the opportunity for an in-person assessment and examination and provided with on-site support in using telehealth technology.
Independent practitioner orders may be signed by a nurse practitioner or physician assistant as well as by a physician.
The IA renders the eligibility determination that the beneficiary meets minimum needs criteria and is the party to any fair hearing that may result.
In developing the plan of care, the Medicaid managed care organization (MMCO) or the local department of social services (LDSS) must take into account the individual’s preferences and social and cultural considerations for receipt of care.
When an MMCO proposes to authorize more than 12 hours of care daily, it should not refer a case to the IRP unless and until the individual is enrolled or scheduled for enrollment in the MMCO and the MMCO has received confirmation that enrollment will be processed on a date certain by the enrollment broker.
The IRP’s determination is merely a recommendation regarding whether the proposed plan of care can maintain the beneficiary’s health and safety in his/her home. The LDSS or MMCO is not bound to these recommendations. While the IRP can recommend specific services that may help the consumer remain in the community or suggest where fewer services may be warranted, it may not recommend specific hours.
An IRP is not required if more than 12 hours of personal care daily are ordered pursuant to a fair hearing decision.
An IRP is not required at reauthorization of services if an IRP has previously recommended more than 12 hours of care. If service levels are reduced below the high needs threshold and subsequently increased to more than 12 hours again, another review by the IRP is required.
Pending a recommendation of the IRP, the MMCO or LDSS may issue a temporary or provisional authorization of services in order to comply with federal or state timeframes for authorizing services.
The regulations modify language describing the standard for denying, reducing, or discontinuing services based on medical necessity, including that an MMCO or LDSS may reduce or discontinue services when the assessment of the member’s needs demonstrates that the immediately preceding LDSS or MMCO authorized more services than are medically necessary, following any applicable continuity of care period. However, an LDSS or MMCO must record the clinical rationale for reductions or discontinuations in a way that demonstrates that they have reviewed the particular consumer’s clinical assessment and medical condition.
MMCOs and LDSSs will be required to work with IAs in scheduling non-routine assessments and in maintaining updated contact information for beneficiaries.
CDPAS participants will be required to access services through a single fiscal intermediary (FI), rather than multiple FIs. Consumers will have up to 90 days to transition to a single FI.
Licensed home care services agencies (LHCSAs) will not need to obtain a medical order for PCS beyond the medical order resulting from the IME.

The revised regulations include a more detailed description of the processes for resolving mistakes and clinical disagreements between the IA and the MMCO or LDSS. A mistake is defined as a material error of fact or observation that occurred when the assessment was performed and that is not subject to the assessor’s clinical judgment. A mistake is 'material' when it would affect the amount, type, or duration of services authorized. When a mistake is identified, the LDSS or MMCO must provide evidence of the mistake to the IA, and the IA must correct the assessment or schedule a new assessment as appropriate. Only certain data elements in the community health assessment will be capable of correction via the mistake process.

If the LDSS or MMCO has a material disagreement regarding the outcome of the IA, the LDSS or MMCO may submit it to the IA with the clinical rationale for the disagreement. A disagreement exists when the LDSS or MMCO disputes a finding or conclusion that is subject to the IA’s clinical judgment. A disagreement is material when it would affect the amount, type, or duration of services authorized. Upon receiving the disagreement submission, the IA must complete a new assessment within 10 days. If an LDSS or MMCO abuses the disagreement process, it may be subject to monetary penalties or restrictions on its ability to request new assessments in response to future disagreements.

Notably, the Department’s assessment of public comment points out that the proposed regulations do not address changes to Managed Long Term Care (MLTC) eligibility. It states that the determinations of eligibility for MLTC enrollment and for PCS and CDPAS are separate determinations, although based on the same activities of daily living (ADL) criteria. We anticipate that this will be the subject of future guidance and an amendment to the 1115 waiver.

Interested parties are encouraged to read the assessment of public comment in the revised proposed regulation, as it elaborates on the intent behind many of the provisions in the proposal. Comments are due on March 13^th and may be submitted here.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838