Medicaid Personal Care or Home Attendant Services

The Medicaid program in New York State covers a type of home care services called Personal Care services (aka PCS or "home attendant"). 

Covered in this article:

*  Law and regulations

1. What are Personal Care Services?

2.  Eligibility

3.   Scope of Tasks

4.  How does one Obtain Personal Care Services?

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

6.  Who Can be Hired as a Personal Care Aide?

7. Procedural rights - Notice and Hearing with Aid Continuing - Mayer, Granato, etc. 

8.  Articles on Demographics & Service Patterns of Personal Care Service Population

i.  LAW AND REGULATIONS:  

Social Services Law sec. 365-a, subd. 2(e), 18 NYCRR 505.14.  This regulation was amended effective Dec. 23, 2015.   See notice published in State Register.  New language is posted here.

1. What are Personal Care Services?

Personal care services are assistance of a personal care aide with nutritional, environmental support, and personal care functions.  "Such services must be essential to the maintenance of the patient’s health and safety in his or her own home" ordered by the attending physician; based on an assessment of the patient’s needs and of the appropriateness and cost-effectiveness" of services. 18 NYCRR 505.14(a). 

There are two "levels" or types of PCS in New York State.

  1. HOUSEKEEPING or "Level 1" - for those who because of disability need assistance with housekeeping, cleaning, meal preparation, grocery shopping, and laundry, but they do  not need help with "personal care" tasks such as bathing or dressing.   These services are limited by state law to EIGHT hours per week.  18 NYCRR 505.14(a)(5)(as amended 12/2015).  NOTE - Adults who have Medicare, who would otherwise be required to enroll in an Managed Long Term Care plan, but who only need Housekeeping services may NOT enroll in MLTC.  They obtain these Housekeeping services by applying at the local district/ HRA.

  2. PERSONAL CARE or "Level 2" -- includes all of the Housekeeping (Level 1) tasks PLUS assistance with personal needs - bathing, dressing, grooming, toileting, walking, feeding, assisting with administering medications, preparing meals with special diets, and routine skin care.   In amendments in December 2015, "turning and positioning" was specifically added as a task, as needed by bedbound individuals who cannot turn themselves, putting them at risk of bed sores.  

2.  Eligibility

PCS can be provided "only if the services are medically necessary and the social services district reasonably expects that the patient’s health and safety in the home can be maintained by the provision of such services, as determined in accordance with" the regulation."  18 NYCRR 505.14(a)(3).  Individual must be:

A common basis for denial of eligibility is that the consumer allegedly needs a "higher level of care" than personal care.   If the two above criteria are met, and the consumer does not need the aide to perform tasks beyond the personal care scope of tasks described above, then eligibility should be established -- it may require a hearing. Moreover, now that MLTC plans and managed care plans are responsible for authorizing  not just personal care services but also consumer-directed personal assistance services, private duty nursing and certified home health services, it would be improper for a plan to deny a request for PCS on this ground, without first assessing whether a different service could meet the client's needs, such as private duty nursing.  

In NYC, a family member, friend, or guardian who agrees to "direct care," or to perform any skilled task such as pre-pouring a medication box, should indicate this agreement on Form HCSP-2131 Agreement to Participate in Plan of Care. 

3.   Scope of Tasks

Personal Care Aides / Home Attendants may perform tasks that are not "skilled."  They differ slightly from "home health aides" who provide care in Certified Home Health agencies (CHHA), in that CHHA home health aides are permitted to perform care in some cases that is semi-skilled, especially for consumers who are "self-directing."  The reason is that the "certification" of a CHHA requires that the visiting nurses employed by the CHHA closely supervise the home health aides.  

4.  How does one Obtain Personal Care Services?

First, one must apply for and become eligible for Community Medicaid,  Those under 65 and not on Medicare apply for Medicaid on the NYS of Health Exchange, and those 65+ or who have Medicare apply through their local Medicaid office.  See this article for where to apply in New York City. See info about Medicaid applications.  

Second, how a Medicaid recipient accesses Personal Care services depends on their age, whether they have Medicare, and some other factors.

  1. Under 65 and not on Medicare - Most people in this category are automatically assigned to a "mainstream Medicaid managed care plan" when Medicaid is approved.  Since August 2011, members of these plans must request Personal Care - including Housekeeping Level I and Personal Care Level II,   Consumer-Directed Personal Assistance, private duty nursing, and other home care services through these plans.  The plans assess the need for services, contract with home care agencies, and authorize services.   The State Department of Health (DOH) has issued guidelines that include instructions on how  consumers should request PCA services from their plans. NYSDOH Guidelines to Personal Care Services in Medicaid Managed Care.

  1. Medicare beneficiaries age 21+ who are not in hospice or OPWDD waiver - most must first request a Conflict-Free Eligibility assessment from NY Medicaid Choice, and then enroll in a Managed Long Term Care plan in order to obtain PCA or CDPAP services.  See some exceptions here.
  1. A Few Still apply for PCS at Local Medicaid Office -  (in NYC - the HRA Home Care Services Program)(or see procedures outside NYC

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

A..  Standards for 24-Hour Care

NYS has two types of 24-hour care available when medically necessary.   The definitions of these levels were just amended by regulation effective December 23, 2015.  The amendments were adopted in part to comply with a settlement in Strouchler v. Shah, a lawsuit that was settled in federal court in Oct. 2014, after the court issued a Preliminary Injunction against NYC HRA in Reducing 24-hour Split-Shift Medicaid Personal Care Services (Sept. 4, 2012 ). The regulation published Dec. 22, 2015 is the final version after the State Dept. of Health issued a series of emergency and proposed regulations since 2011.  Here are the new definitions effective Dec. 23, 2015 - also see GIS 15 MA/024 - Changes to the Regulations for the Personal Care Services Program (PCS) and the Consumer Directed Personal Assistance Program (CDPAP) (PDF)    Scope of the Personal Care Services Benefit 

NOTE about definitions of live-in and split-shift care.

B..  Standards for Assessing Need for  Care, including 24-hour Care
 
Personal care services must be authorized in amounts that are medically necessary.  While there are specific standards for determining the need for 24-hour care, above, the regulations are not as specific for people who need less than 24-hour care.   Local Medicaid programs as well as managed care and MLTC plans that authorize PCS are permitted to use "task-based assessment" to determine needs, with important restrictions.  The policies listed below were developed when PCS were administered by the local district Medicaid offices.  They apply equally to managed care and MLTC plans when they administer these services, since The Federal Medicaid statute requires that all managed care plans make services available to the same extent they are available to recipients of fee-for- service Medicaid.  42 U.S.C. § 1396b(m)(1)(A)(i); 42 C.F.R. §§ 438.210(a)(2) and (a) (4)(i).  The  NYS DOH Model Contract for MLTC Plans also includes this clause: “Managed care organizations may not define covered services more restrictively than the Medicaid Program." Appendix J.

"...When an enrollee requires safety monitoring, supervision or cognitive prompting to assure the safe completion of one or more IADLs or ADLs, the task-based assessment tool must reflect sufficient time for such safety monitoring, supervision or cognitive prompting for the performance of those particular IADLs or ADLs. Safety monitoring, supervision and cognitive prompting are not, by themselves, independent or “stand-alone” IADLs, ADLs, or tasks. Ideally, all time that is necessary for the performance of any needed safety monitoring,

NOTE If a plan has previously characterized safety monitoring, supervision or cognitive prompting as an independent, stand-alone task not linked to any IADL or ADL, the plan must not simply delete the time it has allotted for these functions. Rather, the plan must determine whether the time it has allotted for the underlying IADL or ADL includes sufficient time for any needed safety monitoring, supervision or cognitive prompting relating to that particular IADL or ADL and, if not, include all needed time for such functions...".

(1) number and kind of informal caregivers available to the patient;

(2) ability and motivation of informal caregivers to assist in care;

(3) extent of informal caregivers’ potential involvement;

(4) availability of informal caregivers for future assistance; and

(5) acceptability to the patient of the informal caregivers’ involvement in his/her care.

18 NYCRR 505.14(b)(3)(ii)(b).  Family cannot be assumed to be available, and should be specific as to whether and when they can assist - which days, at what times, etc.  See also 97MA033 - Clarifying instructions regarding Mayer v. Wing (S.D.N.Y.,1996).

​"All plans, including those that use task-based assessment tools, must evaluate and document when and to what extent the enrollee requires assistance with IADLs and ADLs and whether needed assistance can be scheduled or may occur at unpredictable times during the day or night. All plans must assure that the plan of care that is developed can meet any unscheduled or recurring daytime or nighttime needs that the enrollee may have for assistance." (emphasis added)

"Span of time" was long required in New York City and Nassau counties -  in the NYC HRA Nurse's Assessment form (M-27r) (page 4) and its accompanying HRA instructions, used in NYC before MLTC became mandatory.  These forms were adopted pursuant to an agreement with the NYC defendant in Rodriguez, which culminated in a Stipulation of Settlement and Order of Dismissal,  dated January 9, 2003, in which NYC agreed to consider unscheduled and recurring needs and the span of time during which they occur.  (available in WNYLC Online Resource Center Benefits Law database   (must log-in, registration is free).  Since  managed care plans must make services available to the same extent they are available to recipients of fee-for- service Medicaid, these same standards should apply in MLTC.   42 U.S.C. § 1396b(m)(1)(A)(i); 42 C.F.R. §§ 438.210(a)(2) and (a) (4)(i)  In Nassau County, the County agreed in Rodriguez to revise certain assessment forms and instructions “to identify clients with unscheduled needs (such as toileting, transferring, and/or ambulating) and/or recurring needs (such as feeding, assistance with medication, etc.) to ensure a plan of care that will meet these needs.” (Departmental Memo to all assessing and reviewing nurses and medical directors from Rita Nolan, Dir, Medical Services, dated May 24, 2004). 

6.  Who Can be Hired as a Personal Care Aide?

State regulations allow certain relatives to become the personal care aide, which in this program means being hired by the licensed home care services agency (LHCSA) that has a contract with the MLTC plan, certified home health agency, managed care plan, or local district.    These relatives MAY NOT BE the personal care aide:   spouse, parent, son, son-in-law, daughter or daughter-in-law.   Another relative may be the aide "...if that other relative:
(i) is not residing in the patient's home; or
(ii) is residing in the patient's home because the amount of care required by the patient makes his presence necessary."

18 NYCRR 505.14(h)(2)(posted at this link).  Note that the Consumer-Directed Personal Assistance Program will expand in April 2016 to allow a parent of an adult child in addition to a son or daughter, their spouse, or any other adult relative to be the aide, provided the individual 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).   See more in this article

 7. Procedural rights - Notice and Hearing with Aid Continuing

Protections established in litigation, law, regulation, and DOH State Policy  include:

FAIR HEARINGS  --  Hearings are often required to obtain an increase in hours of personal care/home attendant services, to contest denials of applications based on the alleged need for a "higher level of care," etc.  MLTC Policy 16.07  can be useful in thee hearings and see above re standards of assessment of hours. 

8.  Articles on Demographics & Service Patterns of Personal Care Service Population 

Medicaid Personal Care in New York City: Service Use and Spending Patterns,  (Medicaid Institute at United Hospital Fund, December  2010) http://www.uhfnyc.org/publications/880720 -- takes two distinct looks at one group of personal care recipients, elderly dual Medicare-Medicaid beneficiaries in New York City

Medicaid Long-Term Care in New York: Variation by Region and County, (Medicaid Institute at United Hospital Fund, December  2010) http://www.uhfnyc.org/publications/880719  -- analyzes rates of service use and levels of spending per recipient across New YorkState, documenting variation by region and by county. It also examines four interrelated factors—demographics, reimbursement policies, availability of service, and local administration—to begin to explain regional variation.

Alene Hokenstad, An Overview of Medicaid Long-Term Care Programs in New York, (Medicaid Institute at United Hospital Fund, May 2009) A comprehensive report on Medicaid long-term care programs in New York, which serve 247,000 Medicaid beneficiaries each month and account for roughly one quarter of all Medicaid spending. Care for these beneficiaries can be intensive and costly.  Created to inform discussions among New York’s policymakers, health care stakeholders, and community advocates, the report provides an overview of the current organization of long-term care services under New York’s Medicaid program, a September 2007 snapshot of program enrollment and associated annual spending, and a summary of the rules that govern how each program operates. The report also identifies policy options for addressing the key challenges facing the state as it looks at options to better serve New York’s frail seniors and adults with physical disabilities through its 12 long-term care programs. http://www.uhfnyc.org/publications/880507

HISTORY -

Regulation changes beginning in October, 2011.   As authorized by the 2011 statute quoted above, DOH has issued a series of emergency regulations which change the standards for authorizing 24-hour care, both sleep-in care and split-shift "continuous" care in 18 NYCRR 505.14.  Because the regulations are issued as emergency regs, they must re-file them every 60 days. See n 1 on State Administrative Procedure Act.    Note that all of the emergency re-filings have been identical in language except for one thing  -- whether the Local Medical Director must consult with the treating physician.  The substance of the changes are discussed below.   Here are the emergency reg cites in chronological order  -- See full regulation at 18 NYCRR § 505.14 - updated with changes through March 29, 2012, which are unchanged as of July 23, 2012).

  1. Oct. 4, 2011 (published in NYS Register Oct. 19. 2011 p. 33), which expired 90 days after filing 

  2. December 30, 2011- emergency regulation again scheduled to expire

  3. March 29, 2012 emergency regulation published in State Register on April 18, 2012.  Again scheduled to expire. This one made a substantive change from the earlier emergency regs, no longer requiring  the Local Medical Director to consult with the treating physician.   

  4. July 18, 2012 -- emergency reg will expire in 60 days or September 24, 2012.  No changes from Mar. 29, 2012 regulation  publication.   See full regulation at 18 NYCRR § 505.14 incorporating all changes. 

  5. Sept. 24, 2012 - emergency reg again  filed -- September 24, 2012 - Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP) . \

  6. March 14, 2014 - Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)  --emergency regulation -- will be published in the State Register on the third Wednesday following the effective date. Initial emergency regulations are generally effective from the date of filing for 90 days.

FN 1.  Note on State Administrative Procedure Act

Info provided courtesy of Gene Doyle, LMSW
People Organized for Our Rights, Inc. (P.O.O.R.)

When regulations are filed on an emergency basis, they have an initial life span of 90 days. When, as in this case, regulations are repeatedly filed on an emergency basis, each subsequent filing is good for only 60 days. See State Administrative Procedure Act (SAPA) § 202[6].

In order to adopt regulations on a permanent basis, a Notice of Proposed Rule Making must be published in the New York State Register and must afford a minimum 45 day period for submission of public comments.

In each of the Notices of Emergency Rule Making that the New York State Department of Health (DOH) has filed, there is a paragraph immediately following the regulatory text which reads:

This notice is intended to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire . . . . [by x date]

DOH will continue this 60-day emergency rulemaking dance until a Notice of Proposed Rulemaking and a Notice of Adoption are published. Once the Notice of Proposed Rulemaking is published, the 45-day comment period will begin. See SAPA § 202[1](a).

DOH website posts its emergency regulations at:http://www.health.ny.gov/regulations/emergency/ and its proposed regulations here. Recently adopted regulations (within the last six months) can be found at: http://www.health.ny.gov/regulations/recently_adopted/ .


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

NYLAG



Article ID: 7
Last updated: 15 Oct, 2017
Revision: 32
Medicaid -> Home Care -> Medicaid Personal Care or Home Attendant Services
http://www.wnylc.com/health/entry/7/