FOR IMMEDIATE RELEASE:

Contact: Chris Hilderbrant,
Office (585) 546-7510

September 1, 2010

State Issues Directive to Counties on Rules for Administering CDPAP

Rochester, NY – In response to persistent pressure by individuals across Monroe County and New York State urging the State to intervene on the Monroe County decision to terminate the contract with the Center for Disability Rights (CDR) to be a provider in the Consumer Directed Personal Assistance Program (CDPAP), the Department of Health issued a directive to Local District Commissioners and Medicaid Directors on August 25, 2010 clarifying what CDPAP is and the roles and responsibilities of the vendor, consumer and county.

“We are extremely pleased that the Department of Health has issued this clarification to Monroe and all the other counties in New York,” said Bruce Darling, President/CEO of CDR. Darling continued, “The County has falsely accused CDR of being liable for activities that DOH clearly indicates are the responsibility of the consumer.” For example:

In the D&C on August 19, County spokesman Noah Lebowitz said, “even if CDR was victimized by the attendants, ‘it clearly shows they failed to properly screen and manage their employees. We hold them responsible for the action of those employees. They refuse to take responsibility for that.’”

FACT: According to GIS 02 MA/024, attendants are employees of the consumer and the consumer screens, manages, and trains the attendant; not CDR. GIS 02 MA/024: “CDPAP participants may hire, train, supervise and discharge their aides and, in particular, may exercise greater control regarding the manner in which their aides complete the various personal care tasks and other services for which the CDPAP participant has agreed to accept responsibility under the program.”

In the D&C on August 24, County spokesman Noah Lebowitz said,

“If CDR feels it was stigmatized by people being made aware of its activities, then it shouldn’t have allowed the lapses in care under its watch in the first place.”

FACT: According to DOH 95 LCM-102, consumers are responsible for arranging back-up attendant care; not CDR. DOH 95 LCM-102: “Eligible individuals who elect to participate in CDPAP assume the responsibility for services under the program as mutually agreed to by the eligible individual and the provider as documented in the individual’s record. Such responsibilities may include: 1. Recruit workers, 2. Hire workers, 3. Train workers, 4. Supervise workers, 5. Fire workers, 6. Arrange for back-up coverage when necessary…”

In the D&C on September 1, County spokesman Noah Lebowitz said,

“The county does not find it an acceptable excuse that CDR refuses to take responsibility for the actions of aides under its watch”.

FACT: According to DOH 95 LCM-102 “Providers shall not be liable for fulfillment of responsibilities agreed to be undertaken by individuals participating in CDPAP.” According to Monroe County’s own website material pertaining to CDPAP,

“the consumer or the person acting on the consumer’s behalf (such as the parent of a disabled or chronically ill child) assumes full responsibility for hiring, training, supervising, and – if need be – terminating the employment of persons providing the services.”

The State issued its directive in the form of a General Information Systems Message (GIS 10 OLTC/005), which states, “…local districts should comply with all Department policies and requirements as outlined in these documents when administering the CDPAP.” The GIS then lists eleven applicable directives that clarify the CDPA program. Attached is a list of violations and misinterpretations of CDPAP by Monroe County, in relation to the CDR dispute, in accordance with the documents issued by the New York State Department of Health.

The GIS 10 OLTC/005 and all supporting documents can be found at: www.cdrnys.org

Monroe County’s Administration of CDPAP in violation of New York State Department of Health’s Rules

State Directive	Direct Quote from Directive Regarding CDPAP	Monroe County’s Actions
DOH 95 LCM-102	“All agencies or individuals who meet the qualifications to provide home health, personal care or nursing services and who elect to provide such services to persons receiving Medical Assistance, may participate in the program.”	CDR clearly meets the qualifications to be a provider in the CDPA program as defined by NYS DOH.
	“Eligible individuals who elect to participate in CDPAP assume the responsibility for services under the program as mutually agreed to by the eligible individual and the provider as documented in the individual’s record. Such responsibilities may include…Arrange for back-up coverage when necessary… Providers shall not be liable for fulfillment of responsibilities agreed to be undertaken by individuals participating in CDPAP.”	Monroe County has accused CDR of not arranging for back-up attendant coverage but that is clearly the responsibility of the consumer; not CDR. Furthermore, it clearly states that providers are not liable for consumer’s responsibilities.
	“The MOU is a legal document which details the roles and responsibilities of the entities that would administer the CDPAP.”	The MOU that was signed by both the County and CDR is the contract and outlines each entity’s responsibilities. CDR has fulfilled all of its responsibilities in the signed MOU.
	Under the “Sample MOU” provided by the State: “The Local Department of Social Services shall undertake the following: …Determine that the Consumer is able and willing or has a legal guardian able and willing to make informed choices, or has designated a relative or other adult who is able and willing to assist in making informed choices, as to the type and quality of services, including but not limited to nursing care, personal care, transportation and respite services… …Provide Consumers with the appropriate fair hearing notice and the opportunity for a fair hearing with aid-continuing, if appropriate, at such times as the Department requires.”	It is the County’s responsibility to ensure that consumers are eligible for the program; not CDR.Furthermore, the County is obligated to provide consumers with fair hearing information, which Monroe County has not provided to CDR consumers.
	“The purpose of CDPAP is to allow chronically ill and/or physically disabled individuals receiving home care services under the Medical Assistance program greater flexibility and freedom of choice in obtaining such services while reducing administrative costs.”	By forcing consumers to transition from their chosen and preferred CDPAP provider (CDR), the County is violating the consumers’ “freedom of choice in obtaining such services”
GIS 02 MA/024	“The CDPAP, which is authorized by Social Services Law (“SSL”) § 365-f, enables Medicaid recipients who are eligible for home care services to have greater flexibility and freedom of choice in obtaining needed services. CDPAP participants may hire, train, supervise and discharge their aides and, in particular, may exercise greater control regarding the manner in which their aides complete the various personal care tasks and other services for which the CDPAP participant has agreed to accept responsibility under the program.”	Consumers are clearly within their authority to exercise control over the manner in which their tasks are performed.
	“Social services districts’ authorizations and reauthorizations of CDPAP services should be based upon their comprehensive nursing and social assessments as well as upon the guidance in this GIS message.”	Again, the County has a comprehensive authorization process and it is not the responsibility of CDR to determine eligibility in CDPAP
DOH 06 OMM/LCM-1	In this question/answer document, the question raised: “Is the CDPAP personal assistant free to choose the vendor agency (fiscal intermediary)? Is the consumer free to choose the vendor agency (fiscal intermediary)? The State’s response is: “Each social service district must contract with a sufficient number of fiscal intermediaries to serve the district’s CDPAP consumers. Although neither a CDPAP consumer nor the personal assistant may require that the district contract with a particular fiscal intermediary, districts should be reasonable in the response to requests for a particular fiscal intermediary to be under contract rather than summarily reject such requests across-the-board.  There may be circumstances in which the district could reasonable accommodate a request for a particular fiscal intermediary with no detrimental effect on the district’s administrative procedures.  For example, a CDPAP consumer may request a particular fiscal intermediary because he or she has a long-standing relationship with a personal assistant who is affiliated with that entity. The district should consider whether it can accommodate this or other reasonable requests.”	Clearly, the County is not taking into account the desires of the current CDR consumers and assistants – as well as the consumer and assistants who have recently contacted CDR to get involved in the program – to have CDR as their fiscal intermediary of choice.
DOH 06 OMM/LCM-02	In this question/answer document, the question raised: “What information must the district use in determining CDPAP hours to prior authorize? Do consumers have flexibility on when they can use their weekly authorized hours?” The State’s response is: “Prior authorizations are based on a physician’s order and a nursing and social assessment of the consumer’s consistent weekly care needs in the home. While the consumer has some discretion in scheduling the provision of care within that weekly authorization, any unused hours of care may not be saved for use at a later time. Continued inability to use authorized hours indicates a need to reevaluate the needs of the consumer.”	One of the consumers in the County’s investigation was accused of not having adequate coverage, when in fact he was choosing to use his authorized hours to meet his changing needs. He has the authority to schedule at his discretion within the weekly authorization.
DOH GIS 08 OLTC/005	“As defined in Department regulation, a ‘self-directing’ individual is capable of making choices about his or her activities of daily living, understanding the impact of the choice and assuming responsibility for the results of the choice. Characteristics of a self-directing consumer may include the following…The consumer understands what to do in an emergency that threatens his or her health or safety and can summon appropriate assistance, either verbally or with the help of a device…”	One of the consumers in the County’s investigation was accused of not having sufficient systems in place in case of emergency.  In fact, this self-directing consumer had their PERS system within reach and made all the appropriate and lucid decisions about his safety in the event of an emergency.One of the consumers in the County’s investigation was accused of not having sufficient systems in place in case of emergency.  In fact, this self-directing consumer had their PERS system within reach and made all the appropriate and lucid decisions about his safety in the event of an emergency.