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Medicaid Consumer Directed Personal Assistance Program (CDPAP) in New York State - Big Changes Coming 2025!

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Views: 493978
Posted: 18 May, 2009
by Valerie Bogart (New York Legal Assistance Group)
Updated: 13 Jan, 2025
by Valerie Bogart (New York Legal Assistance Group)

January 2025 ALERT -  Transition to a "Single Fiscal Intermediary" (FI) starts now, requiring all consumers in CDPAP to transition from their current to the new single FI "PPL" by April 2025. 

  • See here for links to information from State DOH, CDPAANYS, and PPL and links to press coverage

In this article:

  1. What is CDPAP?  How is it different than regular personal care?

  2. What is a Fiscal Intermediary and Big Change  to a SINGLE Fiscal Intermedicary in 2025

  3. WHO CAN BE HIRED AS THE CDPAP AIDE - expanded in 2016

  4. Eligibility for CDPAP - Stricter Rules Coming in 2025

  5. How Do You Obtain CDPAP -  Managed Care/MLTC Plan or local Medicaid agency - with different procedures for children under 18

  6. How Many Hours of CDPAP is the Consumer Eligible for?  Standards for Assessing Hours

  7. Help with Understanding and Using CDPAP -

  8. CDPAP Laws, Regulations and State Policy Directives & History of CDPAP

  9. ARCHIVES:  RATE CUTS and LITIGATION 2019

1.  What is CDPAP?

The Consumer Directed Personal Assistance Program (CDPAP)  is a statewide Medicaid program that provides an alternative way of receiving home care services, where the consumer has more control over who provides their care and how it is provided.   Rather than assigning a home care vendor or agency that controls selection, training, and scheduling of aides, the "consumer" or the family member, friend or guardian directing his/her care performs all these functions usually done by a vendor.  All counties - and now all mainstream Managed Care and Managed Long Term Care plans - are required to have a CDPAP program and notify “eligible individuals” of the option to join.  Eligible individuals include those eligible for  services provided by a certified home health agency, a long term home health care (waiver) program,  AIDS home care program, or personal care (home attendant). 

Another special benefit of CDPAP is that CDPAP aides may perform "skilled" care that otherwise may only be performed by a nurse - suctioning tracheostomies, insulin injections, administration of oxygen or medications where the consumer cannot self-administer. See N.Y. Educ. Law § 6908(1)(a) .  Tasks that could not otherwise be performed by home health aides or personal care aides are indicated in the scope of tasks for personal care and home health aides.  

  • Unlike traditional Personal Care, parents of an adult child may be paid as a CDPAP personal assistant.  Also, adults may work as the personal assitant for their parent.  See more here about who may be hired as the PA (personal assistant). 

2.  Big Changes Coming in 2025 -  What is a Fiscal Intermediary?   

3.  ELIGIBILITY FOR CDPAP  - Stricter Rules  Coming in 2025

Eligibility Criteria - 18 NYCRR Sec. 505.28(c)

  1. Eligible for Medicaid

  2. Eligible for personal care, certified home health care, private duty nursing, or AIDS or other waiver program

  3. "have a stable medical condition" [NOTE:  this is same definition as in personal care See Section 2 - Eligibility.  But note that CDPAP aides may perform skilled tasks, unlike in personal care.   In this way the definition of "stable medical condition" is different for CDPAP. 

  4. "be self-directing or, if non self-directing, have a designated representative";  See above for who may be designated representative.  ALERT re FEB 2024 BUDGET PROPOSAL - Designated Representatives would no longer be allowed, so people who are not self-directing would be disqualified.   see more HERE 

  5. WARNING - later in 2025,  new applicants for CDPAP or personal care will require the need for physical assistance with three (3) Activities of Daily Living (ADL), or supervisory assistance with 2 ADLs if the person has dementia or Alzheimer's disease.   See more about these coming changes here - which were enacted in 2020 but put on hold because of the public health emergency.

 Also, new Independent Assessor procedures (NYIAP)  to assess the need for CDPAP, personal care, and MLTC enrollment started May 1, 2022.  See more about the Independent Assessor here. 

 4.   WHO CAN BE HIRED AS THE CDPAP AIDE - expanded in 2016 and clarified in 2021

The consumer may hire almost anyone, including any adult family members except his or spouse.  Since April 2016, because of a change in State law, parents of disabled ADULT children -- have been able to serve as the CDPAP personal assistant (PA)  if they are not also the recipient's designated representative.  Likewise, an adult  son or daughter, son-in-law or daughter-in-law may now be the aides for their parent.  See this article in Democrat & Chronicle, Nov. 25, 2015.  Social Services Law §365-f, subd. 3,  as amended by L. 2015 Ch. 511, enacting Senate bill S05712-A  (Sen. Simcha Felder).  

A "legally responsible" adult may not be the aide.  Spouses are always legally responsible for their spouse.  Parents are always legally responsible for their children under age 21.  They still may not be the CDPAP aide for those relatives.

 

Changes to the CDPAP state regulation effective Nov. 8, 2021 removed the ban that did not allow a family member to be hired as the personal assistant if they lived with the consumer.   18 NYCRR 505.28(b)(4).  

A "designated representative" of a CDPAP consumer may not  be the aide. 

State regulations provide, "...A person legally responsible for the consumer's care and support, a consumer's spouse, or the consumer's designated representative may not be the consumer directed personal assistant for that consumer; however, a consumer directed personal assistant may include any other adult relative of the consumer.  18 NYCRR 505.28(b)(4). 

The state regulation defines "designated representative" as "an adult to whom a self-directing consumer has delegated authority to instruct, supervise and direct the consumer directed personal assistant and to perform the consumer's responsibilities specified in subdivision (h) of this section [505.28] and who is willing and able to perform these responsibilities. With respect to a non self-directing consumer, a designated representative means the consumer's parent, legal guardian or, subject to the social services district's approval, a responsible adult surrogate who is willing and able to perform such responsibilities on the consumer's behalf. The designated representative may not be the consumer directed personal assistant or a fiscal intermediary employee, representative or affiliated person.   18 NYCRR 505.28(b)(5)

  • On Oct. 23, 2023, DOH clarified in two separate directives "that a court-appointed (legal) guardian, including a parent-guardian of an adult aged 21 or older, may serve as an adult individual’s CDPAP personal assistant provided they are not also the individual’s designated representative."   

​​​​​​​

  • ALERT re FEB 2024 BUDGET PROPOSAL that would have disqualified anyone from CDPAP who needed a  Designated Representatives. This was rejected in the 2024 state budget, though the Single Fiscal Intermediary was enacted in that budget.  See more HERE 

Immigrants must have a valid work authorization. 

The aide need not be "certified" - training is done by the consumer and family.   However, one of the changes coming in 2025 with the Single FI is a training requirement.  Stay tuned.  See above. 

5.  How Do You Obtain CDPAP -  Managed Care/MLTC Plan or local Medicaid agency (HRA or local DSS)  

There are different procedures to apply depending on whether the consumer has Medicaid only and is enrolled in a Medicaid Managed Care plan, or whether the individual has both Medicare and Medicaid, or has Medicaid but not Medicare and is not enrolled in a Medicaid Managed care plan..   See NYC HRA MICSA Medicaid Alert dated Oct. 26, 2012 on CDPAP and Managed Care.  Also, children under 18 have different procedures.  

  1. People with Medicaid Only (and do not have Medicare) -  they are likely enrolled in a Mainstream Medicaid Managed Care (MMC) plan, which is mandatory for most people (unless excluded or exempt - see this chart).   If they are enrolled,  members  age 18 and over request their  plans to authorize CDPAP services , as well as personal care services.  The Plan will refer them to call the NY Independent Assessor (NYIAP) to be assessed for eligibility.  If found eligible by NYIAP, they go back to their Plan and tell them NYIAP approved them for home care. The plan should give them the option of choosing CDPAP. The plan should then do further assessment and authorize CDPAP.    

    • If an indvidual has Medicaid but not Medicare, and is not enrolled in a Mainstream Medicaid managed care plan, they may call the NY Independent Assessor (NYIAP) to be assessed for eligibility.   They may then contact their local Medicaid office and request CDPAP, explaining that they have been assessed by NYIAP.   See below,

    • Children under age 18 request CDPAP directly from the plan and are not assessed by the NY Independent Assessor.  THey must submit a form to the plan completed and signed by their physician or nurse practitioner.  In NYC - Form M-11q - Medical Request for Home Care (12-9-014). Outside NYC Form DOH-4359,

  1. Managed Long Term Care (MLTC)-- Most adults  who have both Medicaid AND Medicare are required to enroll in MLTC in order to obtain CDPAP. They are called DUal Eligibles). 

    • There are some exceptions - excluded populations who may apply at local DSS (enrolled in OPWDD waiver, enrolled in home hospice, etc.. see list at above link).

    • People who enrolled in MLTC plans since May 2022  were assesed by the NY Independent Assessor (NYIAP).  The MLTC plan used that assessment to authorize them for CDPAP services.  Dual eligibles who are just entering the home care system must be assessed by NYIAP in order to enroll in an MLTC plan.  They then ask the MLTC plan for CDPAP.  The MLTC plan determines eligibility for CDPAP - assessing the consumer's or their representative's ability to direct  and managed their own care.  See  Responsibilities of the Health Plan.  It is not clear that MLTC plans (or mainstream MMC plans) are required to use the NYC Form M-13d or have been given other guidelines or directives on how to assess eligibility.   Knowledge of the laws, regulations and directives governing CDPAP developed over many years is critical.  For example, GIS 08-LTC-005 clarifies that the family member or other person directing care does not have to be present at all times in which skilled nursing tasks are administered by a CDPAP aide to a non-self-directing recipient of CDPAP.   

  2. Request Services at Local DSS (HRA in NYC).  People who are exempt or excluded from MLTC, or who have an   "Immediate Need" for services and are not yet enrolled in an MLTC plan or managed care plan can apply at their local DSS.  However, all applicants for CDPAP age 18 and over must be assessed by the NY Independent Assessor first - so it may save time to contact NYIAP first for an assessment, and then contact the local DSS/HRA.  See more about NYIAP here. 

  • In the Immediate Need procedure, one  may  both apply for Medicaid and request home care. See more about Immediate Need here.  If one already has Medicaid and is requesting CDPAP based on Immediate Need, see this article with a new option available in April 2024 to request the NYIA assessment first, and then go back to DSS/HRA to continue the home care request.  Once approved, the local DSS authorizes CDPAP.  After 120 days of receipt, the individual will be transitioned to MLTC. See more about Transition Rights after Immediate Need here  and generally here. 
  • Most counties required the consumer or the person directing their care to complete a CDPAP application, to show they are capable of arranging for and managing the care.    The NYC application --Form M-13d (04-2018)  (fill-in-able version of this form, created by Evelyn Frank Legal Resources Program) 
  • Helpful Hints on Completing the CDPAP Application.  (HCSP-712d)(4-26-2010) and
  • CDPAP Fact Sheet (2017-01-20) HCSP-3000-z)
  • ​​​​​​​Children under age 18 - submit the standardized Physician’s Order for CDPAP -   Form DOH-4359 outside NYC and  in NYC - Form M-11q - Medical Request for Home Care (12-9-014).   The local district (HRA in NYC) conducts the entire assessment - the request is not referred to the NY Independent Assessor. ​​​​​​​

  1. Transition Rights -  When a consumer is required to transition to an MMC or MLTC plan, after receiving CDPAP services through their local DSS, the MMC plan is required to continue the services previously authorized by the local district (HRA or DSS) for 90 days, at which time  the MMC plan re-assesses need.   See more about Transition Rights after Immediate Need here  and generally here.

6.  How Many Hours of CDPAP Should be Authorized?

The New York State Department of Health (NYSDOH) has issued guidelines for enrollees to use in requesting services from their plans.  NYSDOH Guidelines for Personal Care Services in Medicaid managed care.  THese guidelines should apply to CDPAP as well as personal care.  

See the article on Personal Care for the guidelines and standards for determining the number of hours - especially these sections i the article: 

5.  How Much Personal Care?  How are Hours Determined?

A..  Standards for 24-Hour Care - Definition  of Live-in and Split Shift

B.  Standards for Assessing Need and Determining Amount of Care

7.   Help with Understanding and Using CDPAP

The Consumer-Directed Personal Assistance Association of NYS (CDPAANYS) has lots of resources on its website.

  • Peer Mentoring Program --CDPAANYS offers Peer Mentoring services to prospective and current CDPA consumers and designees who may have questions about the program or are seeking assistance with successfully running their own CDPA program.  Peer Mentoring is always free for those who use the service.  You can reach their team of Peer Mentors by calling the toll-free number, 1-855-423-7733 (1-855-4CDP-PEER), or sending an email to peers@cdpaanys.org.  See more here.

Concepts of Independence - the largest and oldest fiscal intermediary, has tutorials and other info. on its website

  • FAQ's and tutorials on how CDPAP works (including how to hire, train and manage aides)

CaringKInd NYC  -- TogetherWeCare Program -  Consumers or their families can find aides who have completed the CaringKind Dementia Care Training for Professional Caregivers  (CaringKind was formerly the NYC Chapter of the Alzheimer's Association)

7.  CDPAP Laws, Regulations, State Policy Directives & History of CDPAP

This article explains the CDPAP program in NYS, with cites to state statutes  (some have been amended since). Note that this article pre-dates mandatory MLTC.

Laws.

The statutes establishing the CDPAP program include Section 365-f of the Social Services Law and N.Y. Educ. Law § 6908(1)(a) (also known as the Nurse Practice Act, which creates an exception that allows CDPAP aides, along with family and other unpaid informal caregivers, to perform tasks that otherwise may only be performed by licensed nurses.  

Regulations.

The State published final regulations, effective April 20, 2011, creating a new section 28 to 18 NYCRR Part 505.   See New York State Register April 20, 2011/Volume XXXIII, Issue 16  (pp. 7-8)

  • In 2015, the State amended the regulations with new definitions of  24-hour live-in and split-shift care, and more specific requirements for the content of written notices when services are reduced.

See December 2015  NYS Dept. of Health GIS 15 MA/024 - Changes to the Regulations for the Personal Care Services Program (PCS) and the Consumer Directed Personal Assistance Program (CDPAP) (PDF)  NOTICE OF ADOPTION 


State Directives

State Dept. of Health guidance for  MLTC and managed care plans plans to provide CDPAP services -- on the  Medicaid Redesign Team page, scroll down to MRT 90 - MLTC and then to CDPAS Final MLTC Documents (posted around 10/1/12)

The following directives have been issued since the above article was written in 2003:

State Managed Long Term Care Contracts, Guidelines re CDPAP (Posted Oct. 1, 2012, eff. 11/1/2012)

NYC Directives

HISTORY

For a history of the development of the consumer-directed program in New York City, which was a national leader in launching this form of service 33 years ago, see this article., along with:

8.  ARCHIVES:  RATE CUTS and LITIGATION 2019

On October 11, 2019,  the Albany County Supreme Court enjoined NYS DOH  from implementing a new reimbursement methodology for Consumer-Directed Personal Assistance  (CDPAP) which would have drastically cut reimbursement rates.   See  court decision here. 

  • Because of this decision, the State DOH guidance implementing the rate cuts will not go into effect.  This includes FAQ’s about the reimbursement rate cuts for (CDPAP) services that went into effect on September 1, 2019 for Fee for Service CDPAP (not CDPAP provided through managed care or Managed Long Term Care plans), and DOH  Managed Care Policy 19.01: Implementation of Fiscal Intermediary (FI) Rate Structure Enacted in the SFY 2019  NYS Budget  (Appendices can be downloaded on MRT 90 page - click on 2019).  The  court decision enjoins the State's implementation of changes in how CDPAP Fiscal Intermediaries are reimbursed enacted in the state budget in April 2019, which would have the effect of cutting rates by $75 million in state funds ($150 including federal funds). 

  • The lawsuit, filed by CDPAANYS and individual Fiscal Intermediaries, claims that the rate cuts violate both federal and state requirements, and are so severe that will put many CDPAP fiscal intermediaries out of business, effectively ending the CDPAP program.   As reported in the Utica Observer-Dispatch on Oct. 3, 2019, “Some managed care companies, though, have already started changing contacts with fiscal intermediaries in anticipation of lower rates, advocates said.” Advocates: State Cuts Threaten Medicaid Home Care Program.  The article further stated:

    "The horror stories are already flooding in of cuts and threatened cuts affecting services, said Bryan O’Malley, executive director of the Consumer Directed Personal Assistance Association.

    “The department of health cut this program by over 15 percent without even a basic understanding of what the agencies do,” he said in an email. “DOH is sticking by their talking point that services and wages would not be affected, but now that we are seeing the real-life repercussions, they can’t hide behind this myth any more. The devastation their actions are causing to thousands of New Yorkers is inescapable.”

    Having participants simply switch to receiving services through existing staff at home care agencies is problematic, advocates said, given a shortage of home care workers, particularly in rural areas."

The lawsuit was previously reported about in Crain's NY Business on Aug. 14, 2019 and Spectrum News on August 1, 2019. 

The first round of cuts directly effect CDPAP services provided on a Fee-for-Service basis  through  local district Medicaid programs, not  those  enrolled in Medicaid managed care or MLTC plans.  However, advocates and the CDPAP association contend that the cuts will force many CDPAP provider agencies, called Fiscal Intermediaries (“FI”), to close - resulting in reduced access to this service across the state for the 90,000 consumers who rely on CDPAP services, in MLTC plans and managed care plans as well.  

Also, many consumers choose CDPAP because they have “skilled” needs that traditional personal care aides may not perform, such as suctioning a tracheostomy, operating a ventilator, or directly administering insulin or other medications. See Scope of Tasks of various types of aides.   While they may be eligible for Medicaid Private Duty Nursing services, managed care and MLTC plans resist authorizing these services because they are so expensive.  These consumers, and others facing reduced access to care when the FIs close,  may well be forced into nursing homes. 

The July 2019 DOH guidance implementing the CDPAP rate cuts --  Managed Care Policy 19.01 –provides for transition rights to ensure “a smooth transition of consumers to a different FI in the event that an FI no longer provides services or leaves a service area.”   Advocates warn that the transition rights are insufficient.   In comments to a Workgroup convened by State DOH, The Legal Aid Society warned that “these transition rights only apply to CDPAP enrollees transferring from one FI to another,” not to those CDPAP enrollees who are forced to transfer to traditional personal care services because there is no CDPAP FI with capacity to serve them (copy on file with NYLAG EFLRP).    The Legal Aid comments also stated that the State’s guidelines do not provide for directing consumers where to go for help if they face disruption in services – whether New York Medicaid Choice, the State’s enrollment broker for managed care and MLTC plans, or ICAN – the State’s Ombudsprogram for consumers in MLTC plans or receiving long-term care services in managed care plans.

This article was authored by the Evelyn Frank Legal Resources Program of New York Legal Assistance Group.

NYLAG

Attached files
item LIST of Home Care Cases.2.pdf (794 kb) Download
item HCSP-M11q (12-9-2014)Fill-in-able.2.pdf (137 kb) Download
item CDPAP list by county 5-12.pdf (75 kb) Download
item CDPAP NYSBA article.pdf (67 kb) Download
item M-13d - CDPAP Application (2018-04) Fill-able.pdf (151 kb) Download
item Personal Care Aide Scope of Practice 12-1994.pdf (116 kb) Download
item Comment CDPAP FINAL.pdf (141 kb) Download
item CDPAP Regulations 04-20-2011.pdf (152 kb) Download
item 2012-10-26 CDPAP and Managed Care.pdf (117 kb) Download
item 2017-06-07 HRA CDPAP FI list.pdf (562 kb) Download

Also read
item Medicaid Personal Care or Home Attendant Services
item CASA Contact List - NYC
item Applying for Medicaid Personal Care Services and CDPAP Outside NYC - 2016 Changes
item Transition Rights in Managed Care Plans - Rights of New Enrollees to Continue Receiving Services
item Managed Long Term Care
item Medicaid Managed Care
item "Immediate Need" Fast-Track Application for Medicaid and Personal Care or CDPAP - Choices for those with full Medicaid start April 2024
item Special Medicaid Income Rules That May Eliminate Your "Spend-down" or "Surplus Income"
item Transition Rights after Enrolling in or Switching MLTC plans - 2022 Changes
item NEW YORK INDEPENDENT ASSESSOR PROGRAM  (NYIAP) - How Medicaid Home Care Eligibility is Assessed

Also listed in
folder Medicaid -> Medicaid Managed Care

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