Applying for Medicaid Personal Care Services in New York City

New York State's Medicaid program covers personal care services, also known as home attendant services.  This is a type of unskilled, custodial care provided in the home to people with physical or mental impairments that interfere with their ability to independently perform activities of daily living.   This article is about procedures in NYC.  See this article for statewide information about personal care services.

Where To Apply

CASA offices are run by the Medicaid program in NYC.  They process both aspects of the application:  (1) financial eligibility for Medicaid, and (2)  approval of the personal service based on the doctor's form "M11q" and a functional assessment, discussed below.    If the applicant for personal care does not yet have Medicaid, they can submit a Medicaid application to the CASA at the same time as submitting the M-11q.  

As of September 2010, HRA has stated that all M11q's in NYC should be filed at a central intake office, rather than with the CASA.  Our experience is that CASAs may still accept them, but the official policy is to send them to:

For more information on Medicaid financial eligibility and applying for home care, read this memo.  See this information about where to apply for Medicaid in NYC when you do not  want personal care. 

How To Apply

To apply for Medicaid personal care services, you must submit a form signed by the applicant's doctor.  In New York City, this form is the M-11q Medical Request for Home Care (October 2009).  Note that the M11q form at this link is a new version that will be effective April 1, 2010.  Other than some minor changes regarding the physician's certification, this is the first major revision of the form in more than 20 years.   A comparison with the old M11q, effective through April 1, 2010, shows that many of the key sections of the form have been deleted.  The physician is no longer asked to specify the client's functional limitations, symptoms of mental impairment, level of continence, or need for specific housekeeping or personal care tasks.  

The M-11q attached to this article is an electronically fillable PDF form, so you can type your comments into it electronically and print it out.  However, depending up on your software, you may not be able to save the form with your comments intact.   The official M11q  can also be downloaded on the HRA site (not fill-able). 

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.

Warning About Supplementing the M-11q

We had previously posted a supplement form created to allow physicians to fill in the gaps of the new M-11q form.  We have recently discovered that HRA has a policy of rejecting this form and returning it to the applicant.  As a result, we no longer recommend that you use our supplement to the M-11q.  A simple blank sheet of paper with typed or handwritten comments will hopefully be more likely to be accepted. Simply write at the end of the Additional Comments section "continued on separate page" and attach your continuation page with "Form M-11q: Additional Comments (cont'd)" at the top of the page.  You may use our Q-Tips as a guide for the physician in drafting the comments.  Note also that an Additional Comments page not signed by the physician is likely to be disregarded by the CASA.

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 recent 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).

This article was authored by the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc.