NEW YORK INDEPENDENT ASSESSOR PROGRAM  (NYIAP) - How Medicaid Home Care Eligibility is Assessed

IN THIS ARTICLE:

• What is the Independent Assessor?  Click here for the basics. 

• Two Official Websites about NYIA

• When does NYIA Start?

• Contacts - Where to Submit Complaints, How to Request an Evidence Packet, How to Submit a Power of Attorney

• NYIA CONSENT FORM - Where to  FInd it and NYLAG Fact Sheet on How to Use It

• BACKGROUND - BASICS on NYIA

• State and NYC HRA Policies and Procedures on NYIA

• NYLAG PowerPoints and Recorded Webinars on NYIA -  

• Read the latest comments filed by NYLAG on State proposals for implementing these changes 

Two Official Websites about NYIA

1. Maximus website   https://nyia.com/en  (also in Espanol) (launched June 2022)

2. STATE DOH website on Independent Assessor with government directives here - https://www.health.ny.gov/health_care/medicaid/redesign/nyiap/ 

https://www.health.ny.gov/health_care/medicaid/redesign/nyiap/2023-10-03_rollout.htm 

WHEN DOES NYIA START?   NYS DOH has delayed NYIA  phase-in as follows   - and more detail here

• May 16th, 2022 -- was the start date for:

  • MLTC enrollment and all

  • new requests for Personal Care and CDPAP made to mainstream or HARP plans that are STANDARD not EXPEDITED  and 

  • new requests to local districts (DSS/HRA) on a standard timeframe (pushed back from May 1st, which DOH had posted  on Feb. 4, 2021).  NYC HRA issued this Alert on 05/13/22 re NYIA.

• December 1, 2022 --  pushed back from October 1st, 2022  (which was pushed back from July 1st) for:

  • Immediate Need requests to DSS/HRA and 

  • EXPEDITED  PCS and CDPAP requests made to mainstream/HARP plans or to local districts  (pushed back from July 1st)

  •  DOH directive GIS 22 MA/09 - Implementation of Assessments Conducted by the New York Independent Assessor (NYIA) Based on an Immediate Need for PCS/CDPAS (PDF) (11/16/2022)

• Jan. 1, 2024 -- Annual reassessments and requests for increases  (non-routine reassessments) - by MLTC, managed care plans and local districts -- will  be rolled out by region throughout 2024.  See  https://www.health.ny.gov/health_care/medicaid/redesign/nyiap/2023-10-03_rollout.htm 

• NYIA is NOT REQUIRED for anyone CURRENTLY receiving Medicaid Personal Care or CDPAP services - such as those receiving Immediate Need services from their Local DSS and after 120 days are told by NY Medicaid Choice that they must select an MLTC plan or they will be enrolled in one.  However, if they try to enroll in an MLTC plan BEFORE passage of 120 days, they will be required to go through NYIA.    DOH EMAIL with this policy on file with NYLAG if needed.  Email vbogart@nylag.org 

CONTACTS - How to Request NYIAP, Where to  REPORT PROBLEMS, Request Evidence Packet, Submit a Power of Attorney - and OTHER KEY NUMBERS 

• REQUEST NYIAP assessment -    Phone: 1-855-222-8350 TTY: 1-888-329-1541

  Monday to Friday, 8:30 a.m. to 8 p.m.
  Saturday, 10 a.m. to 6 p.m., except for designated state holidays

  • DO NOT use above number if requesting IMMEDIATE NEED services  - contact your local Medicaid office directly.  In NYC -   E-FAX the package to the HRA-HCSP Central Medicaid Unit  - 1-917-639-0665,  See this article for details

  • In NYC - if NYIA assesses and refers you back to NYC HRA - e-fax NYIA notice to (718) 636-7784 for CASA to assess you for possible services. 

•  COMPLAINTS If seeking MLTC enrollment  - State Dept. of Health Complaint Number for MLTC  enrollment & services problems   1-866-712-7197  or  mltctac@health.ny.gov   AND  Independent.assessor@health.ny.gov

• For all Independent Assessor problems - people in mainstream managed care plans, people applying for home care from their local DSS - please contact the State NYIA at

  • (518) 474-5888    Independent.assessor@health.ny.gov

  • If in Mainstream plan - also email managedcarecomplaint@health.ny.gov

• Also call ICAN - OMBUDSPROGRAM FOR MLTC, FIDA-IDD, MAP, and Managed Care Home Care issues    Phone:  844-614-8800    

  • TTY Relay Service:  711   Website:   icannys.org      ican@cssny.org

• Also report problems such as Conflict-free assessments previously scheduled being CANCELED and rescheduled   for the new 2-part assessment, even though requests made BEFORE May 18th should be scheduled under the old rules

• TO REQUEST an EVIDENCE PACKET from NYIA if ELIGIBILITY DENIED - NYIAPfairhearings@maximus.com 

• FAX Power of Attorney or Health Care Proxy to NYIA -   (917) 228-8601 or mailed - address on  the NYIA website page on representatives. 

Form to Designate a Representative - REVISED - now separate from the Information-Sharing  Consent Form

• At the request of consumer advocates  including NYLAG and Medicaid Matters NY, a NEW form for consumer to designate a representative was posted on NYIA website. See new form here posted on the NYIA website page on representatives.   The site now says the signed form can be FAXed to  (917) 228-8601 or mailed - address on website. 

• This form is now separate from the Information-Sharing Consent form,  which consumers have complained is  difficult to use.   See NYLAG fact sheet explaining how to complete and submit the consent form, which allows NYIA to contact a consumer’s doctors and other medical providers as they deem necessary for the assessments.  See NYLAG fact sheet explaining how to complete and submit the CONSENT form.  NYLAG is raising concerns with DOH about this form, since it is difficult to complete and submit. and since consumers should  have other easier ways to designate a representative.

What is the NY Independent Assessor Program? The Basics 

These are the basic steps used for these 3 populations - (for more info see Feb. 8, 2023 webinar recording here and NYLAG's slide deck from the webinar) 

1. anyone seeking to enroll in an MLTC plan (started May 16, 2022),

2. for a mainstream managed care member to request NEW personal care or  CDPAP services (started May 16, 2022 for standard time requests and Dec. 1, 2022 for expedited requests) or

3. for those exempt or excluded from MLTC or mainstream managed care to request NEW personal care or CDPAP services from the local Dept. of Social Services (LDSS)(started May 16, 2022 for standard applications and Dec. 1, 2022 for "Immediate Need requests."

Consumer/rep calls NYIA at 1-855-222-8350 to schedule TWO assessments:  -- Consumers can appoint a representative to talk to NYIA on their behalf. See form and fax number to submit it here.   

1. Independent Assessment (IA)  by a Nurse from NY Medicaid Choice -- this is the same Uniform Assessment that NY Medicaid Choice has long done for the Conflict Free Eligibility and Enrolllment Center.  Now, this will be the sole nurse assessment.  The plans and Local DSS must use this assessment instead of doing their own.  This assessment will first determine if the individual meets the new minimum-ADL requirement, if this is a new application.  
   • "(iii) The independent assessment must assess the consumer where the consumer is located including the consumer’s home, a nursing facility, rehabilitation facility or hospital, provided that the consumer’s home or residence shall be evaluated as well if necessary to support the proposed plan of care and authorization or to ensure a safe discharge. This provision shall not be construed to prevent or limit the use of telehealth in the assessment of a consumer.."   18 NYCRR 505.14(b)(2)(I)(c);  505.28(d)(1)(iii) 

2. Independent Practioner Panel (IPP) or C.A. - exam by PHYSICIAN, physician’s assisant or nurse practitioner  from NY Medicaid Choice, who prepares a Physician's Order (P.O.)   In MLTC, this is NEW.  Doctor’s orders (M11q) had not been required.

   • Note: the IPP/CA may wish to clarify information about the consumer’s medical condition by consulting with the consumer’s provider’s.  The consumer must give provider’s permission to do this.  NYIA has its own form for this purpose.  See NYLAG fact sheet explaining how to complete and submit this form.

   • TREATING PHYSICIAN’S ROLE IN PRESCRIBING PERSONAL CARE OR CDPAP IS REPLACED by this Independent Practitioner panel. 

     Personal care and CDPAP services must be prescribed by a qualified independent physician selected or approved by DOH. The law authorizes using Maximus (NY Medicaid Choice) instead of procuring a new contractor.

     Side note: Aside from the lack of familiarity a contract physician would have with the consumer’s condition, compared to a long-time trusted physician, and the lack of specialization in the consumer’s particular diagnosis, this requirement adds even more delays to applying for services.  

After the 2nd Notice, NYIA sends an Outcome Notice  --

• if the consumer is seeking to enroll in an MLTC plan,  Outcome Notice says whether or not they are eligible to enroll in MLTC. 

  • If not eligible for MLTC, consumer may request a Fair Hearing -- and/or -- If NYIA decided the consumer's medical condition is stable,  but found they did not need 120 days of community-based long term care services through an MLTC plan, they may till qualify for "Housekeeping" services.  This is a type of personal care service limited to assistance with household chores (shopping, cooking, laundry, cleaning), for those who are able to manage their own personal Activities of Daily Living.  The maximum hours for stand alone Housekeeping services is 8 hours/week.  For this service, contact the LDSS agency and provide a copy of the Outcome Notice, and ask for Housekeeping. 

    • In NYC,  e-FAX the NYIA NOTICE to the NYC HRA Home Care Services Program Intake Unit at (718) 636-7784. After submitting the fax, if you do not hear back call  (929) 221-8851  or (929) 221-8889  or email hcspinquiries@hra.nyc.gov 

    • See 5/31/23 HRA Alert about NYIA in NYC. 

  •  If eligible for MLTC, the consumer contacts an MLTC Plan for enrollment, which decides on the plan of care  and consumer enrolls.  If hours are low, consumer may request an increase after enrolled in the plan, and then appeal if that request is denied.   

• If they are in a Medicaid managed care plan  or are exempt or excluded from  MLTC, the Outcome Notice says whether they are medically stable to receive home care.    If they are in a mainstream managed care plan, they contact their plan to further evaluate and approve or deny personal care or CDPAS.  If they are not in a mainstream plan and are excluded or exempt from an MLTC plan, they contact their local LDSS which then evaluates them and approves or denies personal care or CDPAS.  In NYC - see where to go here. 

3rd Assessment must be scheduled if either an MLTC plan, a mainstream managed care plan or the LDSS determine that the indivdiual needs more than 12 hours/day on average, then they must refer it back to NY Medicaid Choice for  a third assessment - the Independent Review Panel in next section below. (Section 11).

3. INDEPENDENT REVIEW PANEL (IRP) - The 2020 MRT II law authorizes DOH to adopt standards, by emergency regulation, for extra review of individuals “whose need for such services exceeds a specified level to be determined by DOH."  DOH's regulations draw this line at those needing more than  12 hours/day of home care on average. The assessor will review whether the consumer, “with the provision of such services is capable of safely remaining in the community in accordance with the standards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider whether an individual is capable of safely remaining in the community.” (Sec. 2, 20).  Again, this is a panel run by New York Medicaid Choice. 

Side note: While we are pleased to see the seminal U.S. Supreme Court Olmstead decision cited specifically in the law, the entire notion of vetting a high-hour case to consider whether the individual is “capable of safely remaining in the community” raises huge Olmstead concerns. Even now, before these changes are implemented, those who need high hours such as 24-hour care must fight decisions by MLTC plans that they must be permanently placed in a nursing home.

Who is the arbiter of “safety?” What about the consumer’s autonomy – their right to the “dignity of risk” in choosing to accept some risks that may exist in the community in order to live at home as they choose? And their right to the medically necessary supports to meet their daily needs? Invoking concerns about “safety” is an old pretext for denying services–a pretext that the Americans with Disabilities Act (ADA) was enacted to combat.

WHERE ARE THE POLICIES AND PROCEDURES FOR THE INDEPENDENT ASSESSOR-  State and HRA?  

• GIS 22 MA/09 - Implementation of Assessments Conducted by the New York Independent Assessor (NYIA) Based on an Immediate Need for PCS/CDPAS (and expedited Mainstream Managed Care requests) (PDF) (11/16/2022)

• Mainstream Managed Care Guidance -  June 17, 2022 - Delays EXPEDITED mainstream assessments under NYIA until Oct. 1, 2022 

  • April 28, 2022 - MMC Guidance - Implementation for Initial Assessments for members of Mainstream Medicaid managed care plans requesting personal care or CDPAP

  • GIS 22 MA/09 - Implementation of NYIA Assessments  for expedited Mainstream Managed Care requests) (PDF) (11/16/2022)

• Local District Medicaid Offices - State guidance and HRA Alert

  • GIS 22 MA/09 - Implementation of NYIA Assessments  Based on an Immediate Need for PCS/CDPAS  (11/16/2022)

  • June 17, 2021 GIS 2022-MA/05 - delayed Immediate Need implementation of NYIA until Oct. 1, 2022 (delays dates announced in Administrative Directive (ADM) 22-OHIP-ADM-01 NY Independent Assessor for  Personal Care & CDPAP for local districts  (April 20, 2022) 

  • NYC HRA Medicaid Alert NY Independent Assessor & Changes to Personal Care (PCS) Assessment Process (5/31/23) 

• April 27, 2022 - DOH posted MLTC Policy 22.01: Implementation of the New York Independent Assessor for Initial Assessments 

• The above policies are posted on the DOH NYIA webpage, which also has PowerPoints presented to plans and local districts, not to the public. No FAQs or consumer information are posted as of Feb. 28, 2023.

• On May 3rd, 2022, NYLAG sent these questions and comments about the then new policy directives. 

• State regulations were amended effective Nov. 8, 2021.  See more here.

NYLAG Slide decks and webinars on NYIA - 

• View NYLAG's VALERIE BOGART slide deck and presentation at the annual Elder Law Forum in Albany NY held on May 11, 2023 about the Unwinding of the Public Health Emergency, the 2023 Expansion of Medicaid Eligibility, and the NY Independent Assessor.  Slide Deck at this link (pp. 77 - 127) and view presentation at this link.  See all presentations at the all-day forum at this link.

  • Case Study -- Also view the video featuring an actual  Albany consumer approved for only 5 hours/day after NYIA assessment, with panel of experts discussing strategies to advocate for him - ranging from financial planning and pooled trust to advocating with the MLTC plan for more hours. 

• NYLAG WEBINAR: Update on NYIA  February 8, 2023  - View recording here and  download Powerpoint HERE.

• NYLAG's Nov. 2022 slide deck here on NYIA  and view recorded webinar with Valerie Bogart speaking about these changes here - with other speakers at annual NY Elder Law Forum on May 19, 2022.  

• View January  26, 2022 recorded webinar here and download PowerPoint here

  • Note that since this webinar conducted, implementation date has been delayed to May 1, 2022 for Independent Assessor.

• PowerPoint on changes Oct. 20, 2021

• View May 21, 2021 recording of Elder Law Forum sponsored by Pierro, Connor & Strauss LLP - with speakers Valerie Bogart of NYLAG,  Al Cardillo of the Home Care Association, a Medicaid Home Care Application Case Study, and a panel on Medicaid home care fair hearings.   

  • Click here for agenda and here to download materials. (Bogart PowerPoint starts at page 10).  Click here for link to all videos.

• View April 15, 2021 webinar and POWERPOINT  (see updated PowerPoint Oct. 20, 2021)

• View older webinar conducted 9/9/20  by NYLAG  and download the PowerPoint (but note lookback will not  likely start until Jan 1, 2022) - 

• VIEW earlier January  26, 2022 recorded webinar here and download PowerPoint here (but note that since this webinar conducted, implementation date has been delayed to May 16, 2022 for Independent Assessor and more policies were issued..  see more recent slide deck.above.

STATE REGULATIONS  & POLICIES ON INDEPENDENT ASSESSOR AND NYLAG COMMENTS 

Final state regulations  on Personal Care and Consumer-Directed Personal Assistanc (CDPAP) were  posted on the NYS DOH website on August 31, 2021, published in the NYS Register on Sept. 8, 2021.  Direct link to regulation is here.   The regulations have an effective date of Nov. 8, 2021, but they will not all be implemented on that date.   NYLAG was disappointed that the final regulations were virtually same as the  proposed state regulations to which NYLAG and other organizations submitted comments in March 2021.  Most of our recommendations were rejected.   

• Reassessments now are annual not every 6 months
• CDPAP:  only one FI per consumer; designated rep for non-self directing consumer must be present at all assessments, new agreement between consumer/rep and LDSS/plan
• M11q/physician’s order may be signed by Nurse practitioner, physician’s assistant, Osteopath – not just MD
• Tweaks permitted reasons for reductions in MLTC Policy 16.06:
• Tweaks policy on “safety monitoring” under NYS DOH GIS 03 MA/003  and MLTC Policy 16.07

NYLAG COMMENTS Submitted on State Regulations & Policies  to Implement the Changes -

• INDEPENDENT ASSESSOR -  NYLAG, alone or as part of coalitions, has sent many letters to DOH with questions and comments about the NYIA implementation.

  • On Oct. 27, 2022, Medicaid Matters NY, and  theCoalition to Protect the Rights of New York’s Dual Eligibles joined with associations that represent Managed Long Term Care plans and home care providers to send a joint letter to the Hochul administration to air concerns about and demand slowdown of implementation of the New York Independent Assessor.  The letter can be downloaded here.  It asks that the NYIA expansion to include Immediate Need requests and expedited mainstream Medicaid managed care requests, slated for Dec. 1, 2022, be halted until the myriad delays and problems with this new assessment system improve.    

  • On May 3rd, 2022, NYLAG sent these questions and comments about the new policy directives. 

  • Mar. 25, 2022 - NYLAG sent a second set of comments and questions   about Topics 2 and 3 presentations on DOH NYIA website. 

  •  Feb. 2, 2022 - NYLAG sent DOH questions  and comments on 2/2/2022 about the 1st 2 sets of Powerpoints posted 12/2021 and 1/14/22. 

  • Dec. 15, 2021 --NYLAG and Medicaid Matters NY jointly sent Dec 2021 letter to DOH with concerns about implementation, posted here with a Jan. 6, 2022 update.   DOH has acknowledged at a meeting with Medicaid Matters NY on Jan. 4, 2022  that NY Medicaid Choice lacks the capacity to conduct these assessments - in part due to nursing shortage aggravated by COVID.  

• On Sept. 14, 2020, NYLAG submitted Comments posted here  to  the  proposed state regulations that would implement  the Home Care Eligibility Changes and Changes in Assessments. 

• On Oct. 29, 2020, NYLAG submitted comments to the State's proposed State Plan Amendment that would implement the new ADL requirements for all personal care and CDPAP, whether obtained through the local Medicaid office, an MLTC or Mainstream managed care plan 

• On Dec. 24, 2020, NYLAG submitted comments to the State's proposed amendment of the 1115 waiver that governs the MLTC program, that would restrict eligibility to enroll in MLTC plans to those who meet the new 2 or 3 ADL criteria. 

• On March 13, 2021, NYLAG submitted comments to the 2nd round of proposed state regulations that implement the new ADL criteria and Independent assessor procedures.  

• On March 26, 2021 -  With the April 1st NYS Budget deadline looming,  NYLAG, Legal Aid Society, Empire Justice Center and other organizations sent a letter calling for steps to ensure access to home care - and to avoid nursing home placement - including repeal of the ADL thresholds enacted in last year's budget