CDPAANYS and CDR Letter to Paul Francis Re: Overtime Funding Cuts

Dear Deputy Secretary Francis,

On Monday, November 9, the New York State Department of Health Office of Health Insurance Program, Division of Long Term Care, issued a policy stating that all home care service providers will receive a $0.34 per hour adjustment to their rates to offset overtime costs associated with changes to the Fair Labor Standards Act (FLSA) on the Federal level. Upon clarification, it was determined this includes fiscal intermediaries (FIs) in the state’s consumer directed personal assistance program (CDPA). This announcement, coming almost a month after the implementation of the Federal policy, falls far short of the $20 million promise Governor Cuomo made to the approximately 17,000 seniors and people with disabilities who rely on CDPA to remain in the community that he would solve the overtime problem in this program. Indeed, it represents use of the Department’s “superpowers” to cut funding for seniors and people with disabilities by 50%.

After several months of trying to schedule meetings with you, your staff and the Department of Health, only to be denied and ignored, we were appalled to read this final determination. In this announcement, Governor Cuomo abandoned his long-time commitment to CDPA. Instead, he showed shocking disregard for the seniors and people with disabilities who rely on this program by cutting funding in half.

What was most troubling was that this 50% cut was imposed in such a way that it penalizes the consumers with many FIs who have traditionally allowed overtime, while providing a financial windfall to those FIs that do not allow overtime. As proof, a brief survey of CDPAANYS members indicates that planned expenses from implementation of the overtime and travel rules range from $0.00, $0.17, $.037, $0.41, to $0.66 per hour. This does not even include fiscal intermediaries in New York City, where overtime and overall hours are much higher.

This level of variation should not come as a surprise. Not only has CDPAANYS been telling you, since April, that accommodations need to be made for different FIs with different policies, your DOH has gathered this information on three separate occasions. DOH first reached out to FIs on December 3, 2014. DOH sent a second survey on July 2, 2015. The third survey, sent October 9, asked the same information as the first two.

The repeated surveys sent to FIs in the program disputes any claim that DOH did not have sufficient information to disburse funds adequately. If other information was necessary, the Department should have included it on any and/or all of these surveys. The fact that they did not indicates they felt they were receiving the necessary facts.

With this unrefined and ill-conceived approach to implementing overtime funding, the Governor is causing irreparable harm to the consumers who have rely on overtime, for reasons as varied as the outcomes of the policy you are implementing. Some have tried to hire additional staff and been unsuccessful because they cannot offer high enough wages based on the substandard reimbursement from the State and plans. Others must offer workers overtime in order to keep them, again because of the wages. Those with dementia and Alzheimer’s, cannot introduce new parties to the home without significant distress and deterioration.

While overall reimbursement is lower than in 2006 and every FI needs a boost in rates, this is not the mechanism for that. We urge the Department to immediately work with CDPAANYS, CDR and other advocates to eliminate the 50% cut to seniors and people with disabilities who rely on CDPA to stay in the community and develop a funding mechanism to capture the variation across the industry while keeping the Governor’s promise to adequately fund overtime.

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