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Applying for Medicaid Personal Care or CDPAP Services in New York City - 2016 Changes

Views: 45000
Posted: 07 Sep, 2012
by Valerie Bogart (New York Legal Assistance Group)
Updated: 08 Aug, 2016
by Valerie Bogart (New York Legal Assistance Group)

Where and how to apply for Medicaid personal care services and Consumer Directed Personal Assistance program (CDPAP) services has drastically changed with the implementation of mandatory Managed Long Term Care in New York State under a federal waiver that was approved September 4, 2012.   The majority of individuals seeking Medicaid home care are now required to enroll in private managed care plans in order to receive those services.   The process of applying for Medicaid and home care services is different depending upon what type of service, whether the applicant has Medicare, where the applicant lives, and new in  July 2016, whether the individual has an "immediate need" for the personal care or CDPAP services.  See this article for applying for personal care services outside of NYC.  

The procedures have changed twice since 2012 - in Sept. 2012 and then again in July 2016: .

1.    Most adult Dual Eligibles in NYC (age 21+ having Medicare and Medicaid) are required to enroll in Managed Long Term Care plans in  order to receive Medicaid personal care or CDPAP.  But they first apply to HRA for Medicaid. 

Since  September 2012, in NYC, and other parts of the state where MLTC became mandatory over the next three years, most adult dual eligibles (click here for exceptions) apply at HRA for Medicaid, but "the front door is closed" for obtaining home care through HRA. See NYC Medicaid Alert dated Sept. 6, 2012  and  HCSP Central Medicaid Unit letter,

  1. Other than those few exceptions, Adult Dual Eligibles who need Medicaid Home Care in NYC apply for Medicaid here:

HRA--Home Care Services Program Central Medicaid Unit  address effective Jan. 14, 2013

785 Atlantic Avenue, 7th Floor

Brooklyn, NY 11238

T: 929-221-0849

Do NOT apply at a CASA office or at another Medicaid office - when seeking home care, must apply at the address above.  Some  MLTC plans will file a Medicaid application for a prospective member..

  1. What to submit -

    1.  Generally applicants submit only the Medicaid application (with Supplement A  (DOH-4495A and all supporting documents, including verification of all financial resources for home care or other community-based long term care services).  See this Troubleshooting guide for tips to avoid delays in  applications for people who will have a Spend-Down

    2. In JULY 2016  a NEW PROCEDURE started for applicants who have an IMMEDIATE NEED for personal care or CDPAP services.  In addition to the Medicaid application with supporting documents,  they may also submit an M11q (NYC Form physician's order for home care), a new form for Attestation of Immediate Need.  Read about this new process and find the links to download the forms in this article.

  2. What happens next - 

    1. If Medicaid application was submitted without request for Immediate Need services, once Medicaid is accepted, client will be referred to choose and enroll in an MLTC plan on her own or be referred to one through New York Medicaid Choice

    2. If Immediate Need Procedure was followed, the Medicaid application must be accepted within seven days, and HRA must authorize personal care or CDPAP in 12 days.  After 120 days of receiving these immediate need services, the individual will receive a letter from New York Medicaid Choice to select a managed long term care plan in 60 days or client will be automatically assigned to one.

2.   People who are Exempt or Excluded from Managed Long Term Care - Who they are and Where they Apply for Medicaid and Home Care:

A.  Those in the Following Categories are Exempt or Excluded from enrolling in MLTC:  

  1. Applicants under age 21 who are not in a "mainstream" Medicaid managed care plan. If they are in such a plan, they must seek services through the  plan.  Those age 18-21 may opt for MLTC instead of mainstream Medicaid managed care if their disability is such that they would otherwise qualify for nursing home placement. 

  2. Adult applicants who do not have Medicare who are not in a "mainstream" Medicaid managed care plan.  If they are in such a plan, they must seek services through the  plan.

  3. Anyone actually receiving hospice services is not eligible for MLTC and may apply to the HRA Home Care Services program for personal care/home attendant/CDPAP services to supplement hospice care.  Write "HOSPICE PATIENT" on top of the M11q!  

  4. Traumatic Brain Injury (TBI) Waiver p or Nursing Home Transition & Diversion Waiver (NHTDW) participants or applicants.  Write TBI or NHTDW on top of the M11q! 

  5. People seeking HOUSEKEEPING (personal care Level I) services, limited to 8 hours/ per week. 18 NYCRR 505.14(a).  These are for assistance with IADLs (instrumental activities of daily living, or help with shopping, cooking, housecleaning, laundry) as opposed to ADLs (activities of daily living, or help with personal needs such as bathing, dressing, toileting, mobility transfer)

  6. People in the OPWDD (Office of Persons with Developmental Disabilities) Waiver are EXCLUDED from MLTC and must get services through HRA.

  1. Where and How to Apply for Medicaid and Home care - people exempt or excluded from MLTC

1. Submit Medicaid application with "Supplement A"  (DOH-4495A and all supporting documents  and M11q to the following address  If they already have Medicaid, include a copy of the notice of acceptance or the CIN number.

NYC HRA Home Care Services Program
BMPR/Central Intake
109 East 16th Street, 5th Floor
New York, NY 10003
Phone: 212-824-0607
Fax: 212-896-8814 

What is the M11q?  And Tips about Preparing the M11q Form 

The M11q is the official HRA Form for applying for personal care.  Until July 2016, an adult dual eligible applying for Medicaid who expects to enroll in n an MLTC plan would not have submitted this form to HRA.  However, with the new procedures for people in Immediate Need of personal care or CDPAP services, the form is again required.

The form is posted on the NYC HRA website at  M-11q Medical Request for Home Care (Dec. 2014).  Click here to download a fill-in-able version.

Q-Tips  -Helping a doctor to complete the M-11q can be tricky, because the form uses many terms that are not universally understood by doctors.  In addition, there are some details that are very important to assessing the need for home care, but which are not solicited on the form.  To help you understand how to complete a successful M-11q, we have written a memo called Q-Tips.  This version has been revised for the April 2010 M11q. The old version of the  Q-Tips memo is also available in Spanish - we hope to update it for the 2010 M11q.  Keep in mind that the M-11q is a medical document - non-doctors can assist in its completion, but in the end, a doctor must certify that the contents are true.

Home care advocates have found that the most effective M-11q forms are those that have detailed comments about the applicant's impairments and needs for assistance with activities of daily living.  However, the M-11q form does not have much space for comments, and now the April 2010 form removes sections that formerly elicited some detailed comments by the physician.  However, the M-11q form explicitly asks the physician to "attach an additional sheet(s) explaining the patient's condition in greater detail."  We recommend that the M-11q form always be supplemented by this additional sheet of paper, with handwritten or typed comments spelling out the applicant's need for assistance with Activities of Daily Living in more detail. Here is an unofficial template.

         30-Day Rule and "Stale" M-11q's

State regulation 505.14(b)(3) requires that the physician complete the physician's order (M11q) within 30 days of the medical examination of the client, and that the completed M11q be filed with the local district (CASA) within 30 days of the medical examination.  The NYC HRA Home Care Services Program issued a Memo to all CASAs, dated May 26, 1995, that clarifies that as long as a signed M11q is submitted to the CASA within 30 days after the medical examination, it does not become "stale-dated" because it is in the CASA for more than 30 days without being acted upon.  Moreover, this Memo clarifies that an M11q continues to be valid for one year after the medical examination.  

30-Day Time Limit for HRA/CASA to Process M-11q

This time limit was agreed to in the 1978 settlement in Miller v. Bernstein (see par. 7). This is, obviously, not always complied with. 

What are the regulations referred to in the Physician's Certification?

These are rules that have been in effect since at least the early 1990’s that provide sanctions and penalties for physicians who commit fraud, abuse, or who knew or had reason to know that services they prescribed were unnecessary, improper, or exceed the patient’s medical condition.

  • Part 515 – Provider Sanctions – general section about sanctions against providers for “unacceptable practices,” which include “Furnishing or ordering medical care, services or supplies that are substantially in excess of the client's needs.”  Sec. 515.2 (11).

  • Part 516 – Monetary Penalties against providers for unacceptable practices

  • Part 517 – Provider Audits – requires providers who bill Medicaid fee-for-service to retain records for six years

  • Part 518 - Overpayments – Providers may be required to repay the State for inappropriate, improper, unnecessary or excessive care furnished directly or that the physician prescribed. “Medical care, services or supplies ordered or prescribed will be considered excessive or not medically necessary unless the medical basis and specific need for them are fully and properly documented in the client's medical record.”

A  federal audit found that some physicians who signed M11q forms had no record of ever seeing the individuals described in the M11q’s as patients. Signing an M11q for a patient who the doctor never saw would, of course, be a violation of the rules and subject to sanctions. However, the new certification goes further and warns doctors against prescribing services that are “unnecessary, improper or exceed the patient’s documented medical condition.” As long as a physician retains records of their treatment of the patient for the requisite six years, these records reflect the patient’s medical condition as described in the M11q, and the physician uses his or her reasonable professional judgment in recommending the amount of personal care services as medically necessary, s/he could not be subject to any sanctions.

Advocates can tell physicians that the warning was meant to weed out fraud – not good faith assessments of necessary services.

Gag Rule on Recommendation of Hours

Since 1992, state regulations have provided that in the physician’s order (M11q in NYC), the “medical professional must not recommend the number of hours of personal care services that the patient should be authorized to receive.” 18 NYCRR 505.14(b)(3)(i)(3). The rule was unsuccessfully challenged in court, so remains on the books.1 However, later developments in the personal care assessment process give authority for the treating physician to recommend, if not the number of hours, the “span of time” during which the need for personal care services arises.

  • Local districts may not use “a task-based assessment when the applicant or recipient of personal care services has been determined by the social services district or the State to be in need of 24 hour personal care, including continuous (split-shift or multi-shift) care, 24 hour sleep-in care or the equivalent provided by formal or informal caregivers. The determination of the need for such 24 hour personal care, including continuous (splitshift or multi-shift) care, shall be made without regard to the availability of formal or informal caregivers to assist in the provision of such care.” 18 NYCRR 505.14(b)(5)(v)(d), as amended effective Nov. 1, 2001. 2

    • COMMENT: Since the physician’s order (M11q) is a key part of the assessment process, the district cannot determine the need for 24-hour personal care without the treating physician’s assessment.

  • While this regulation does not expressly state that the treating physician must be consulted as to whether 24-hour care is needed, other parts of the regulations state:

    • The physician “must complete the physician's order form accurately describing the patient's medical condition and regimens, including any medication regimens, and the patient's need for assistance with personal care services tasks…” 18 NYCRR 505.14(b)(3)(i)(a)(2).

      • COMMENT: Accurate description of the “patient’s need for assistance” with tasks such as ambulation, transfer and toileting would necessarily include discussion of the frequency of such needs over a 24-hour span.

    • “A physician must sign the physician's order form and certify that the patient can be cared for at home.” 18 NYCRR 505.14(b)(3)(i)(b).

      • COMMENT: A physician could believe it professionally necessary to qualify this certification by certifying that the patient can be cared for at home provided that 24-hour or x hours of care are provided.

    • In the Statewide settlement in Rodriguez v. Novello, Stipulation and Order of Settlement, dated December 19, 2002, the State agreed to modify procedures for task-based assessment. The directive that implements the settlement, called GIS 03 MA/003, dated 1/24/03, clarifies that “The assessment process should evaluate and document when and to what degree the patient requires assistance with personal care services tasks and whether needed assistance with tasks can be scheduled or may occur at unpredictable times during the day or night.” In addition, the GIS provides that “. . .a care plan must be developed that meets the patient’s scheduled and unscheduled day and nighttime personal care needs.” It also provides that personal care services include “…the appropriate monitoring of the patient while providing assistance with the performance of a Level II personal care services task, such as transferring, toileting, or walking, to assure the task is being safely completed.”

      • COMMENT: Since the treating physician must, in the M11q, describe the “patient's need for assistance with personal care services tasks,” discussion of whether these needs occur “at unpredictable times during the day or night” is a necessary part of the physician’s description. Likewise, the physician should discuss whether and during what span of time the patient needs monitoring (also called “cueing,” “prompting,” or “contact guarding”) to assure safe completion of tasks of transferring, toileting, or walking.

    • Part of the settlement in Rodriguez applies only to New York City, since it involved claims against the NYC Medicaid program. The City agreed to modify the City’s nurse’s assessment form3 so that if the nurse identifies a need for assistance with any of the three key activities of ambulating, transferring or toileting, the nurse must “indicate the span of time over which the assistance of a home attendant is required” or explain why assistance is not needed over a span of time.

      • COMMENT: Since state regulations require that the nurse’s assessment must include “a review and interpretation of the physician's order,” 18 NYCRR 505.14(b)(3)(iii)(b)(1), the physician’s opinion of the “span of time” during which needs with ambulating, transferring or toileting, would have to be considered.

    • An informal poll of advocates, including Selfhelp staff, have never heard of an M11q being rejected because the physician stated the number of hours that are needed, despite the 1992 regulation. We believe that if it was rejected, the case developments described above that require consideration of the “span of time” in which needs arise supersedes the regulation and justifies the physician’s recommendation.

Footnotes

1) Kuppersmith v. Perales, 688 N.Y.S.2d 96 (1999), affirming 668 N.Y.S.2d 381 (App. Div. 1st Dept. 1998).

2) This regulation was amended pursuant to the Stipulation in Mayer v. Wing, and is known as the “Mayer-Three” exception to Task-Based Assessment. See GIS Message 01 MA/044. Mayer v. Wing, 922 F. Supp. 902 (S.D.N.Y. 1996), modified in part, unpublished Orders (May 20 and 21, 1996); Stipulation & Order of Discontinuance (Nov. 1, 1997)(Agreement to amend this regulation is in 11/1/97 Stipulation).

3) Nurse’s assessment is required under 18 NYCRR 505.14(b)(3)(iii).

4)  "Services shall not be diminished or discontinued solely because of the change in the patient's source of payment or the patient's inability to pay for care." 10 NYCRR 763.5(f)


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

NYLAG

Attached files
file HCSP Central Medcaid Unit HRA.pdf (611 kb)
file Miller v. Bernstein.pdf (208 kb)
file Q-TIPS 4-10.pdf (155 kb)
file HCSP CASA List 10-9-2014.pdf (113 kb)
file M-11q Continuation.dot (25 kb)
file HCSP-M11q (12-9-2014)Fill-in-able.2.pdf (137 kb)
file Q-tips_Esp.pdf (64 kb)
file Medicaid Basic - 2017.pdf (634 kb)
file Memo- M-11q not stale-dated if CASA delay 30+ days.pdf (51 kb)
file 18-NYCRR-505.14 amended 3-29-2012.pdf (136 kb)
file HRA MICSA Alert Relocation of HCSP, Central Intake and BMPR August 25, 2010_101018125105.pdf (52 kb)
file Medicaid Alert Mandatory MLTC Update 9-6-2012.pdf (118 kb)
file MLTC change in spend-down coding 7-12-2012.pdf (42 kb)
file Troubleshooting - 4-16-15 pp.pdf (2.11 mb)
file 2013-01-03 HCSP Relocation.pdf (317 kb)
file Nurses Assessment Visit report used in NYC.PDF (365 kb)

Also read
document How to use a pooled SNT to eliminate the Medicaid spend-down.
document Medicaid Personal Care or Home Attendant Services
document CASA Contact List - NYC
document Medicaid Consumer Directed Personal Assistance Program (CDPAP) in New York State
document Medicaid Spend-Down
document Medicaid Certified Home Health Agency (CHHA) Services
document Where to Apply for Medicaid and Medicaid Home Care in New York City
document Managed Long Term Care
document Medicaid Alerts & Other Protocols published by the NYC HRA Medical Insurance and Community Services Administration (MICSA)
document KNOW YOUR RIGHTS: Fact Sheet Explaining Basic Rules on NYS Financial Medicaid Eligibility for People who are Disabled, Aged 65+, or Blind
document Medicaid Managed Care
document Tools for Choosing a Medicaid Managed Long Term Care Plan
document Appeals & Grievances in Managed Long Term Care - Consumer Rights
document New Law Requires 7-Day Medicaid Application Approval if "Immediate Need" for Personal Care or CDPAP - Addresses Delays in Enrolling in MLTC Plans.
document Know Your Rights: NYLAG Webinars on Medicare and Medicaid -

External links
http://www.nymedicaidchoice.com/

Also listed in
folder Medicaid -> Applying For and Keeping Medicaid

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Medicaid Personal Care or Home Attendant Services     Managed Long Term Care


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