The New York State fiscal year 2018-19 budget was passed and took effect April 1st, 2018. Consumer Directed Personal Assistance Association of New York State (CDPAANYS) has analyzed the budget for new laws that affect the Consumer Directed Personal Assistance (CDPA) program. We released our findings on the Governor’s original proposal when it was released earlier this year.
This budget is not particularly kind to CDPA. We successfully fought back against some of the Governor’s worst schemes but some very harsh laws were included in the final version. We want to keep you informed and engaged in any changes to CDPA. Below you will find an outline of our findings.
Reductions in MLTC availability and choice
The budget takes aim at consumers‘ ability to choose their MLTC, and to stay on their plan if they are admitted to a nursing home. Consumers may now only switch MLTC plans within 90 days of enrollment notice or the plan’s effective date, whether they have chosen the plan themselves or have had one assigned, and must submit a request to DOH to do so. After the 90 days, DOH can “lock in” consumers for 12 months. Once “locked-in”, consumers can only switch plans if DOH determines there is “good cause”. We are exploring a possible loophole that may restart the 90 day timeframe each time a consumer switches plans, and we will keep you informed as we learn more.
Consumers who enter nursing homes for any reason will now face the possibility of being kicked off of their MLTC plan. From now on, once an individual lives in a nursing home for six months, they are labeled “permanently placed” and switched to fee-for-service (FFS). Both the Assembly and Senate offered less drastic versions of this rule in their budget proposals. The Assembly’s plan would have “suspended” a consumer‘s MLTC plan starting from month three until month nine of living in a nursing home, and the Senate’s plan still removed consumers from their MLTC plan after three months, but offered consumer safeguards such as a required notification before being removed from their plan and a right to appeal the decision. The Governor rejected these basic protections in the end.
As many people know from personal experience, it is extremely difficult to get onto an MLTC for a person living away from home. This will add barriers for consumers wishing to return home and to their community, and could potentially trap them in a nursing home for the rest of their lives. We will fight to ensure individuals’ due process is respected and that there is a clear path for those placed in nursing homes who wish to return to the community have a clear path to do so.
Restricting information about CDPA
The Governor’s first version of the budget banned FIs from advertising their home care services, including CDPA. When we asked Department of Health (DOH) representatives to explain their reason for targeting FIs, they said that there MLTC enrollment was growing “too fast”. Basically, it was a way to keep consumers from finding out about CDPA to prevent further growth, since ending the program would be extremely unpopular with voters.
We brought this issue to the Governor’s office, Senators, and Members of the Assembly, letting them know that if this ban were to go into effect, many New Yorkers would wind up in nursing homes because they didn’t know that CDPA was available to them. Many of the people we spoke to were troubled by the proposal, and we were reassured by DOH staff that the ban would be modified into some type of regulation.
While the final budget does not contain an outright advertising ban, places extreme limits on FIs’ marketing rights. As of April 1st, 2018, any and all materials, including newspaper ads, social media posts, and even webpages, that can be interpreted as marketing must be submitted to DOH for approval before it goes out to the public. Further, DOH can take away an agency’s license if it decides that the agency has published “false or misleading” materials, or materials that they failed to get advance for approval for, after two mistakes.
This “two strikes and you’re out” rule is extremely unfair, and will shut off consumer access to critical information about CDPA from agencies who fear losing their license because of this outrageous law. To add insult to injury, nursing homes and hospitals aren’t restricted from advertising at all, and can continue to spend millions of dollars on marketing campaigns. We are looking into any and all action to address these unprecedented changes.
PA wages and the workforce crisis
The budget earmarks $3 million to adjust the wages of FFS workers in rural counties after conducting study to explore of the availability of home and community based services in those areas, though the cost of study must first be paid from the $3 million fund. We have been told that the North Country will be the focus of this study, with the possibility of performing it elsewhere later on. We will be following all movement on the study and provide guidance to DOH about whether we think it is contributing to progress.
While any attention and money is given to the to the insufficient wages paid to PAs, we recognize that it will take much more than this study to fix it. The Assembly’s version of the budget reintroduced the trend factor, which we supported as it would allow PA wages to increase with inflation. The Governor rejected this idea because it would have created a tax on New York’s wealthiest residents. Both the Assembly and Senate’s bills included a high-needs rate cell which we have also pushed for over the years, dedicated for individuals who’s care costs are the highest, including 24 hour and split shift CDPA. Yet again, it was ultimately rejected by Governor Cuomo.
Preserving the integrity of CDPA
The budget requires criminal background checks for all health home staff that work for agencies that serve people with developmental disabilities, as well as individuals under the age of 21 who are enrolled in a managed care plan. It also adds those employees to the list of mandatory reporters. We fought against including these regulations in the final budget, as they undermine the philosophy of CDPA, particularly “dignity of risk”. The Assembly stronly supported our position and advocated on our behalf during final negotiations. Fortunately, DOH and the Assembly notified us that this law doesn’t apply to CDPA.
CDPAANYS would like to thank our consumers for their tireless advocacy on behalf of the CDPA program. Because of your engagement and activism, proposals that would have severely limited information about services that allowconsumers to remain at home instead of being place in institutions, among other measure, were stopped in their tracks. Still, a lot of work remains and we hope that we may continue to count on your support to help CDPA to continue to thrive in New York. Please stay tuned for the latest information and updates about CDPA, as well as action alerts to make your voice heard.