I. PURPOSE

The purpose of this Administrative Directive Memorandum (ADM) is to provide guidance and instruction to Local Departments of Social Services (LDSS) regarding regulatory changes impacting Personal Care Services (PCS) and Consumer Directed Personal Assistance Services (CDPAS) that were effective November 8, 2021. These changes are the result of various statutory, regulatory and administrative reforms included in the enacted State Fiscal Year 2020-21 New York State Budget and regulatory amendments to 18 NYCRR §§ 505. 14 & 505. 28 published in the September 8, 2021 New York State Register.

II. BACKGROUND

This OHIP ADM offers guidance and instruction to the LDSS pertaining to several aspects of the regulatory changes effective November 8, 2021, including:

1. Eliminating the LDSS Requirement to Annually Notify Home Care Recipients about Consumer Directed Personal Assistance Services (CDPAS);
2. Requiring Consumers/Designated Representatives to Work with Only One Fiscal Intermediary (FI) at a Time;
3. Defining Additional Responsibilities of Designated Representatives;
4. Changing Routine Reassessment Timeframe;
5. Ordering Practitioners for Personal Care (PCS) and Consumer Directed Personal Assistance Services (CDPAS);
6. Codifying Supervision and Cueing; and
7. Updates to the Requirements for the Continuation, Denial, Reduction or Discontinuation of Services.

To conform with changes to the CDPAP as outlined in A-C, the Department has also revised the agreement template between the LDSS and the consumer/designated representative.

NOTE: This ADM does not implement any aspects of the Independent Assessment process, nor the minimum eligibility criteria. 18 NYCRR §§ 505. 14(b)(8) & 505. 28(m) allow the Department to permit the current assessment process to continue until such time as the Independent Assessor has been implemented.

III. PROGRAM IMPLICATIONS AND REQUIRED ACTIONS

A. Elimination of the LDSS requirement to annually notify home care recipients about Consumer Directed Personal Assistance Services (CDPAS)

18 NYCRR § 505. 28(i)(1), previously § 505. 28(h)(1), has been revised to remove the clause requiring the LDSS to annually notify recipients of personal care services, long term home health care program services, AIDS home care program services or private duty nursing services of the availability of consumer directed personal assistance services (CDPAS).

While this requirement has been removed, it is expected that if a recipient of personal care, long term home health care program, AIDS home care program or private duty nursing services does inquire about CDPAS, the LDSS will inform them about the program, give them the opportunity to apply, and inform them of the FIs in the LDSS network.   In addition, if during the development of a person-centered care plan it appears that CDPAS may address some or all the individual´s personal care needs, the LDSS should provide information about the program to the individual.

---

B. Requiring consumers/designated representatives to work with only one FI at a time

18 NYCRR §§ 505. 28(e)(1)(v) & 505. 28 (h)(3) prohibit consumers or their designated representative from working with more than one FI at a time. While a consumer can still hire as many personal assistants (PAs) as may be necessary under their plan of care, those PAs will have to use the one FI with which the consumer, or their designated representative, has chosen to work.

Should an LDSS become aware that a consumer or their designated representative is working with more than one FI, either on their own or through an FI that alerts the LDSS, the LDSS must work with the consumer or their designated representative to reduce the number of FIs to one. The FI they choose to work with, however, remains the consumer´s/designated representative´s choice.

As of the date of this ADM, the LDSS has 60 days to contact all current consumers for whom they have authorized CDPAS under more than one FI. Going forward, the LDSS has 30 days to contact a consumer if they become aware, they are working with more than one FI. The LDSS must use the template included as Template 1 to communicate with each consumer identified as having more than one FI.

From the point of contact, the consumer has 60 days to choose one FI and have all their personal assistants onboarded to that one FI. The LDSS must close all other authorizations.

If a consumer does not choose an FI within the allowed 60-day timeframe, the LDSS is required to choose one of the FIs the consumer is working with to continue and inform the consumer of this choice in writing using the template included as Template 2. The LDSS must choose one of the FIs that the consumer is currently working with, and it should be, where possible, the FI that would cause the least disruption to the consumer´s schedule. For example, if a consumer has four personal assistants and three of those are working for one FI while the fourth works for a second FI, the LDSS should choose the FI that is making payment to the three FIs.

The LDSS will only provide authorization to the one FI that either the consumer has chosen or the LDSS has chosen for the consumer.

This requirement does not constitute a discontinuation, suspension, reduction, or restriction of CDPAS and, therefore, does not give rise to Fair Hearing rights. However, the written notices should provide appropriate contact information for the district so that the consumer or designated representative may contact them with any relevant questions or complaints. There are no exceptions to this requirement.

This requirement only applies to the consumer/designated representative. Personal assistants may work with multiple FIs if they are working for multiple consumers who have each chosen their own singular FI.

Please note, the requirement for a CDPAP consumer to have only one FI pertains only to the Department of Health´s CDPAP and not fiscal intermediary services or programs at other agencies, e.g., OPWDD. A consumer may work with an FI at another agency in addition to the one FI for the Department of Health CDPAP.

---

C. Additional Designated Representative Responsibilities

18 NYCRR § 505. 28(h)(2) has been added to require a Designated Representative (DR) to acknowledge in the consumer agreements with the LDSS and FI that they will:

• Make themselves available to ensure the consumer responsibilities are carried out without delay; and
• For non-self-directing consumers, make themselves available and be present with the consumer for any scheduled assessment or visit by the independent assessor, examining medical professional or LDSS.

---

D. Timeframes for PCS and CDPAS Routine Reassessments

18 NYCRR §§ 505. 14(b)(4)(vii) & 505. 28(e)(5) have expanded the timeframe for routine reassessments from six (6) to twelve (12) months, effective November 8, 2021. On and after November 8, 2021, any individual assessed through the Community Health Assessment (CHA) in the UAS-NY for PCS and/or CDPAS will have a routine reassessment date in the UAS-NY calculated for 12 months from the date the last assessment was conducted.

Individuals who were last assessed before November 8, 2021 should still receive their next assessment within six months of the prior assessment. For example, an individual who was assessed on September 5, 2021 should have their next assessment on or before March 5, 2022. Once an individual receives an assessment after November 8, 2021, their next assessment should be scheduled within the next 12 months.

Note that the Department has not substantively amended the requirement to align the duration of service authorization with the assessed needs of the individual. This requirement is retained, although the duration of authorization may be extended up to 12 months based on the results of the assessment. This means it remains the responsibility of the LDSS to consider the general health and circumstances of the individual and seek more frequent non-routine reassessments, if necessary, to reasonably maintain their health and safety in the community, as well as whenever there is a change in condition that may affect the amount, duration and scope of services, or upon an individual´s request for an assessment.

Additionally, other programs and services that address long term care needs require more frequent reassessment, including but not limited to:

• Assisted Living Programs (ALP) – at least every six months
• Adult Day Health Centers (ADHC) – at least every six months
• Programs of All-Inclusive Care for the Elderly (PACE) – at least every six months

---

E. Ordering Practitioners for Personal Care and Consumer Directed Personal Assistance Services

18 NYCRR §§ 505. 14(b)(2)(ii)(g) & 505. 28(d)(2)(vii) expand the titles of practitioners now able to sign the DOH-4359 and HCSP-M11Q forms to include the following, as defined in State Education Law:

• Medical Doctor (MD)
• Doctor of Osteopathy (DO)
• Nurse Practitioner (NP)
• Physician Assistant (PA)
• Specialist Assistant

The practitioners listed above are able to complete the medical exam and sign the order forms without an MD or DO co-signing.

All other aspects of ordering for PCS and CDPAS remain in place until the announced implementation of the Independent Assessor, which has not yet occurred.

---

F. Codifying Supervision and Cueing

18 NYCRR § 505. 14(a)(5)(iii) codifies supervision and cueing as forms of assistance with PCS. The Department had most recently addressed supervision and cueing in GIS 03 MA/003 which outlines that supervision and cueing are forms of assistance with personal care functions (Level 2 services).

This ADM supersedes GIS 03 MA/003 in that it expands allowable supervision and cueing to include assistance with Nutritional and Environmental support functions (Level 1 services), as well.

However, consistent with GIS 03 MA/003, supervision and cueing cannot be authorized by the LDSS or reimbursed unless provided as a means of assistance with a recognized Level 1 or 2 service. Safety monitoring is not a recognized state plan service. For instance, someone may be authorized for four hours a week of assistance with shopping, meal preparation and laundry and these tasks may be provided through hands-on assistance, supervision or cueing, but the individual may not be authorized for supervision and cueing that is not associated with the authorization for shopping, meal preparation and/or laundry.

For example, the aide may do the shopping or accompany the individual to the market to ensure that they purchase adequate and appropriate food. The aide may supervise meal preparation to make sure the individual practices safe food handling, turns off appliances and puts everything away. In addition, the aide may provide cues to ensure that the individual properly completes their laundry (placing the sheets in the washer, putting them in the dryer, bringing them to the bedroom so the individual can make their bed later). However, the aide may not remain in the home to make sure the individual doesn´t wander or turn on the stove after the cooking task is completed.

NOTE: For those who only need Nutritional and Environmental supports, services remain capped at 8 hours per week. By extension, this service limit applies to the authorization of supervision and cueing, as well.

---

G. Updates to the Requirements for the Continuation, Denial, Reduction or Discontinuation of Services

1. 18 NYCRR §§ 505. 14(b)(1)(viii)(c)(1) & 505. 28(i)(4)(i) now specify that the LDSS must identify in the Notice and Plan of Care, for actions based on Medical Necessity, the factors that demonstrate why services are not, or are no longer, medically necessary.
   
   The LDSS must include a clinical rationale that:
   • Shows a review of the individual´s specific clinical data and medical condition
   • If applicable, includes the basis on which the individual´s needs do not meet specific benefit coverage criteria and
   • Is sufficiently clear and understandable to enable review of the action on appeal.
2. 18 NYCRR §§ 505. 14(b)(4)(viii)(c)(2) & (3), & 505. 28(i)(4)(ii) & (ii) have been modified to update and add examples of already appropriate reasons and notice language for use when denying or reducing services.
   
   As a reminder, the lists included in the regulations are NOT new reasons, not are the lists exhaustive. Rather, the lists are illustrative and provide examples of reasons that the Department considers as independently permissible. Other reasons that are not on the list may apply, such as additional statutory or regulatory requirements for the provision of services. The list of reasons is included to assist/guide the LDSS toward permissible reasons for denying or reducing services.
   1. 18 NYCRR §§ 505. 14(b)(4)(viii)(c)(2)(i), (3)(i) & 505. 28(i)(4)(ii)(a), (iii)(a) have updated the health and safety rationale to align with previous guidance. The update has included the term “reasonably”. When denying or reducing services, the LDSS must determine that the individual´s health and safety cannot be reasonably assured with the provision of PCS or CDPAS.
      
      Authorization of services does not require the LDSS to eliminate all doubt as to whether PCS or CDPAS, in conjunction with other formal or informal services and supports, will maintain the individual´s health and safety.
   2. 18 NYCRR §§ 505. 14(b)(4)(viii)(c)(2)(vi), (3)(iv) & 505. 28(i)(4)(ii)(e), (iii)(d) have been revised to update the rationale for denying or reducing services when the use of technology or devices may meet some or all the identified needs.
      
      Updates also include that applicable technologies incorporate the use of telehealth services or assistive devices. Some examples include telemonitoring, assistive devices such as a microwave to eliminate the need to stand at a stove to prepare home delivered meals, and medication dispensers or pill pack, provided:
      • the service or device is readily available to the individual, and
      • the LDSS documents that the device reduces the individual´s service needs, e.g., by indicating in the notice and plan of care which Level 1 or Level 2 task(s) the technology is being used to address.
      It should be noted that there is a difference in wording between (2)(vi) and (3)(iv). The additional requirement added to (2)(vi) regarding availability was made in response to public comments received and should be applied to both PCS and CDPAS, and to reductions as well as initial denials.
   3. 18 NYCRR §§ 505. 14(b)(4)(viii)(c)(2)(vii) & (3)(v) update the rationale for denying or reducing services for residents of facilities where the facility is responsible for providing care.
      
      In using this rationale, the LDSS should have determined, and must indicate in the notice, that either:
      • the individual is not seeking to transition to a less restrictive setting, or
      • the individual´s health and safety cannot be reasonably assured in a less restrictive setting.
      The Department notes a drafting error which occurred in the notice of adoption where that the equivalent rationale at 18 NYCRR § 505. 28(i)(4)(ii)(f) was removed. Despite this, the Department views the rationales regarding residents of facilities as being applicable to both PCS and CDPAS.
   4. 18 NYCRR §§ 505. 14(b)(4)(viii)(c)(2)(ix) and (3)(i), & 505. 28(i)(4)(ii)(h) and (iii)(a) have been added to instruct the LDSS that voluntary informal supports can be a rationale for denying or reducing services, where the available informal supports, or other supports or services, can meet the individual´s needs.
      
      When using this rationale, the LDSS must document the alternative services (e.g., informal supports) and what needs in the plan of care the alternative services meet.
      
      These provisions are based on existing provisions that prohibit the authorization of services when voluntary assistance, other forms or supports, or adaptive or specialized equipment are available, cost-effective and meet the consumer´s needs.

IV. UPDATES TO THE CDPAP CONSUMER AGREEMENT

Individuals participating in CDPAP are required to sign the “Consumer Directed Personal Assistance Program Agreement Between the Consumer/Designated Representative and the Local Department of Social Services”. This agreement outlines the responsibilities of the consumer, designated representative and LDSS. By signing this agreement, all parties acknowledge and agree to their responsibilities under the CDPAP.

To effectuate the changes to rules and regulations, the Department has updated the agreement template that must be used between consumers, designated representatives (if applicable), and the LDSS. The Department updated this agreement on December 10, 2021 and it replaces, in whole, the agreement template the Department issued in 2011 as Attachment 5 to 11 OHIP/ADM-6. The LDSS should no longer use the previous version of this agreement and Attachment 5 has been removed from the Department´s website. This new agreement applies to consumers who are currently authorized for services and for new authorizations.

The revised version of the CDPAP Consumer Agreement has been included in Attachment 1 and is also posted to the Department´s website here, and includes the following updates:

• Removes LDSS responsibility to notify members about CDPAS
• Adds LDSS responsibility to only authorize CDPAS provided through one FI
• Adds or revises consumer responsibilities to include:
  • Working with only one FI
  • Ensuring PAs adhere to Electronic Visit Verification (EVV) requirements as outlined in the Department´s EVV Program Guidelines and Requirements
• Adds specific Designated Representative responsibilities section as outlined in Section C. above

A new consumer agreement must be signed when CDPAS is authorized, when a change is required (such as having to appoint a new or different designated representative) and on an annual basis. The LDSS will provide the consumer and/or designated representative a copy of the signed agreement as well as retaining a copy in the consumer´s file.

The LDSS is required to use the revised consumer agreement, as provided in Attachment 1, when a new consumer agreement is needed as outlined above; it is not required to be updated outside that cadence. However, the LDSS, consumer and designated representative are required to fulfill all responsibilities as outlined in 18 NYCRR §§ 505. 28(e), (h) and (i), which include the revisions as described above and ensures statewide programmatic consistency.

V. EFFECTIVE DATE

The provisions in this ADM are effective November 8, 2021.

ATTACHMENT 1