Defines the kind of assistance required to be included as part of medicaid personal care services

Summary of provisions of bill

This bill amends Social Services Law §365-a(2)(e) to clarify the type of assistance to be provided by personal care aides in the Medicaid program. The bill clarifies that personal care includes hands-on assistance, supervision, and cuing, to ensure safe performance of all activities of daily living, including instrumental activities of daily living, for persons with physical, impairments or limitations in cognitive functioning.

Existing law

The definition of personal care services in the state social services law is general, stating that they are services of an aide "... as determined to meet the recipient's needs for assistance when prescribed by a physician ..." SSL .365- a(2)(e).

Other sections of the law and department regulations confirm that it has long been state policy that persons who, because of cognitive impairments such as Alzheimer's disease, are unable to "direct" their own care, are eligible for Medicaid personal care services in New York just as are persons with physical impairments, provided that a family member or other person directs their care. SEE Soc. Serv. L. 3654(2)(c); 18 NYCRR § 505.14(a)(4)(ii). The lack of a specific reference in section 365-a(2)(e) to the needs of persons with limitations in cognitive functioning for assistance to protect their health and safety, however, has been interpreted by local districts as well as the State Department of Health to permit districts to deny personal care to such persons.

Justification

The State Department of Health and various local districts have incorrectly interpreted state law to permit them to deny personal care services needed by persons with Alzheimer's disease and other cognitive impairments to maintain their health and safety at home. This is due in large part to the establishment of a new system for assessing the amount of needed services-"Task Based Assessment" (TBA). Since its adoption in the nineties, by New York City, Suffolk, Nassau, Westchester, and other counties across the state, TBA has sharply reduced the amount of services available to people with cognitive impairments by excluding "safety monitoring" from the list of covered tasks. In some cases this has resulted in a complete denial of Personal Care Services when the person could be safely maintained at home with such services.

Although the state's exclusion of "safety monitoring" as a stand-alone separate personal care task was upheld by the United States Court of Appeals for the Second Circuit in RODRIGUEZ V. CITY OF NEW YORK, 197 F.3d 611 (2d Cir. Oct. 6, 1999), the Court held that the Americans

with Disabilities Act and Medicaid law permitted but did not require New York to cover this task. In addition, it must be noted that the term "safety monitoring" is not a recognized term in the field of rehabilitation and assessment, and is not a separate service. Rather, it is the type of assistance with activities of daily living that people with cognitive impairments need, and generally refers to monitoring and verbal "cuing" of an individual who is cognitively impaired, to prevent unsafe activities such as using household appliances in a way that is unsafe, or wandering.

State law must be clarified to ensure that New York's Medicaid program does not discriminate against persons with Alzheimer's disease and other cognitive impairments, and that personal care services are equally accessible regardless of whether the individual's need is caused by a cognitive impairment or a physical impairment.

To accomplish this, the amendment clarifies that the types of personal care assistance to be provided include not only hands-on assistance but also supervision and "cuing," which include "contact guarding," reminding and prompting. To prevent an individual who has Alzheimer's disease from wandering, for example, the personal care aide may cue and supervise her to ambulate safely. This amendment to the statute also brings state law in conformity with the policy of the United States Center for Medicare and Medicaid Services (CMS), the federal agency that regulates and oversees state Medicaid programs. A 1999 amendment to the definition of "personal care services" in the CMS State Medicaid Manual clarifies that:

An individual may be physically capable of performing Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs) but may have limitations in performing these activities because of a cognitive impairment. Personal care services may be required because a cognitive impairment prevents an individual from knowing when or how to carry out the task. For example, an individual may no longer be able to dress without someone to cue him"or her on how to do so. In such cases, personal assistance may include cuing along with supervision to ensure that the individual performs the task properly."

CMS State Medicaid Manual § 4480 (Jan. 1999).

This amendment also updates the law by using the nationally accepted terminology of describing personal care tasks as "Activities of Daily Living" (ADLs) and "Instrumental Activities of Daily Living" (IADLs), which correspond to the state regulation dichotomy of Level I and Level II personal care tasks, respectively. 18 NYCRR § 505.14(a)(6).

Denial of adequate personal care for persons with Alzheimer's disease and other types of dementia will force them to be institutionalized even when care in the community is the most appropriate setting: Unnecessary institutionalization is not only contrary to longstanding state policy, see e.g. Public Health Law §3600, but violates the Americans with Disabilities Act as interpreted by the United States Supreme Court in OLMSTEAD V. L.C., 527 U.S.-,144 L. Ed.2d 540, 1999 U.S. LEXIS 4368 (June 22, 1999).

Legislative history

2009: A.7898/S.4446 A. Health/S. Health 2008: A.3153- A.Ways & Means 2007: A.3153- A.Social Services 2006: A.5849- A.Social Services 2005: A.5849- A.Ways & Means 2004: A.4306- A.Social Services 2003: A.4306- A.Ways & Means 2002: A.4900- A.Social Services 2001: A.4900- A.Ways & Means 2000: A.10424-Passed Assembly

Fiscal implications for state and local governments

Since personal care services are, in all but a small number of cases, less costly than Medicaid payments for nursing home care, this bill will not increase state or local Medicaid expenditures.

Effective date

This act shall take effect on the one hundred twentieth day after becoming law. However, effective immediately, the addition, amendment and/or repeal of any rules or regulations necessary for the implementation of this amendment on its effective date is authorized and directed to be made and completed on or before such effective date.