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COVID-19 updates & Eligibility Restrictions
CDPAP services are still available from MLTC and managed care plans, for people applying for "Immediate Need" services, or who are exempt from MLTC or managed care -- during COVID-19. People who want to register with a "Fiscal intermediary" to be paid as a CDPAP Personal Assistant must still get the medical exam and PPE (TB) test. Medical exams may be obtained at https://www.mobilehealth.net/locations/ in NYC and elsewhere in NYS. Advocates have asked NYS DOH to waive this medical exam requirement, or allow it to be done by Telehealth, as DOH has permitted for aides seeking employment with a traditional licensed home care services agency. Some people who had traditional aides may want to switch to CDPAP so that family members who are now out of work can provide the care.
See more COVID UPDATES in this article.
In 2020, NYS enacted restrictions on eligibility for CDPAP and personal care, requiring 2 or 3 Activities of Daily Living. As of March 2022 these changes are still not implemented because of the public health emergency. Also, new Independent Assessor procedures are scheduled to start May 1, 2022. See more about these changes here.
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).
2. EFFECTIVE April 1, 2016 -- WHO CAN BE HIRED AS THE CDPAP AIDE?
The consumer can hire almost anyone, including any 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 CDPAP aide if they are not also the recipient's designated representative, and with restrictions on whether they may live with the consumer. See this article in Democrat & Chronicle, Nov. 25, 2015.
Before this change, spouses and parents could not be hired as the CDPAP aide. A son or daughter or any other family member could be the aides, provided the family member does "...not reside with the consumer or ... who resides with the consumer because the amount of care the consumer requires makes such relative's presence necessary...." 18 NYCRR 505.28(b)(3). Now, only spouses are prohibited from being hired as the aides.
3. CDPAP Aides may Perform "SKILLED" TASKS - unlike regular personal care aides
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.
4. Different Employment Model - Fiscal Intermediary vs. Home Care Agency
5. ELIGIBILITY FOR CDPAP
Eligibility Criteria - 18 NYCRR Sec. 505.28(c)
6. Who Authorizes CDPAP - Managed Care/MLTC Plan or local Medicaid agency (HRA or local DSS)
Here is how people with Medicaid only and those with Medicare and Medicaid access CDPAP. See NYC HRA MICSA Medicaid Alert dated Oct. 26, 2012 on CDPAP and Managed Care.
Responsibilities of the Health Plan and Consumer (acknowledgement that MLTC member must sign)
Policy for the Transition of Consumer Directed Personal Assistance Services into Managed Care
Administrative Agreement for the Provision of Fiscal Intermediary Services for the Consumer Directed Personal Assistance Program
7. Help with Understanding and Using CDPAP -
The Consumer-Directed Personal Assistance Association of NYS (CDPAANYS) has lots of resources on its website.
Concepts of Independence - the largest and oldest fiscal intermediary, has tutorials and other info. on its website
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)
8. CDPAP Laws, Regulations and 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.
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.
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)
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
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)
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:
9. 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.
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.