Fiscal intermediaries that applied to be a statewide fiscal intermediary (“SFI”) arrived to work on Monday to find email notifications from the New York State Department of Health (“DOH”), disqualifying their application for the single SFI. Over the course of the day, an ANNOUNCEMENT was published by the New York State Governor’s office, announcing PPL as the winner of the State’s consumer directed RFP process. The Governor’s announcement came as no surprise to a number of insiders who had heard, for months, that PPL would be receiving the SFI contract.
Aside from announcing PPL as the winner of the SFI award, the Governor’s announcement contains a number of other important points:
- The Governor emphasized that the transition process will take months that would “take effect by mid-2025.” This should provide assurances to the fiscal intermediaries who are understandably very concerned about their business viability over the next few weeks.
- The announcement identifies four large and long-standing fiscal intermediaries that have been selected as “Four Core Regional Home Care Partners.” It is unclear what part of the single statewide fiscal intermediary law actually creates this “regional partner” structure.
- The announcement also references that the RFP involves a “a diverse alliance of more than 30 regional partners that will strengthen” the CDPAP program.” These agencies are “currently active in New York’s CDPAP who provide a wide array of multilingual, culturally sensitive care to communities across the State. The list of additional agencies participating in this strategic partnership alliance will be announced in the near future.” Presumably, these 30 “regional partners” are the subcontractors that meet the January 1, 2012 fiscal intermediary operations requirements under the law, but that point is not clear. The subcontractors were not to be selected by the State but rather by the SFI. Yet, the Governor’s announcement refers to these entities as if the State has selected them. Thus, it is unclear what the statutory authority is for the State to select these additional agencies.
- The Governor’s announcement then highlights that State officials and partners will “now begin a comprehensive transition process focused on ensuring communication, dialogue and support for CDPAP home care users and caregivers. This transition process will continue throughout the coming months and will ensure home care users and caregivers are protected before the new statewide partnership takes effect. This process will include:
• Direct in-person and virtual meetings with home care users and caregivers throughout the State.
• Coordination with disability and senior advocacy groups.
• Open dialogue with elected officials across the State.
• Ongoing review by State officials to ensure the needs of home care users and caregivers are thoroughly addressed before the new statewide partnership takes effect.
• Additionally, PPL highlighted that the new statewide partnership will include a robust, multilingual, accessible communications plan that is focused on print, digital and social media content to ensure that home care users and their families understand the CDPAP services available to them and make it easy for home care users to choose the appropriate caregiver for addressing their needs.”
It is expected that yesterday’s announcement concerning consumer direct will now set off a renewed campaign to “convert” personal assistant workers into licensed personal care aides or home health aides (“PCA” or “HHA,” respectively).
As noted on our webinar, an agency needs to be licensed as a LHCSA before it can provide the services and the family caregiver cannot be in a certain family relationship to the patient/consumer. State regulations restrict what family members can provide care to another family member in the traditional LHCSA setting. Failure to adhere to these rules and limitations could result in New York State ordering the provider to refund all money billed for prohibited family care services under LHCSA.
Further, as discussed on the Poricanin Law webinar last week, ultimately, the consumer has freedom of choice as to whether to transition their personal services care into a LHCSA. Providers should be mindful of lawfully educating and offering the choice of care to the consumer. The DOH could ultimately seek to penalize providers who overstep boundaries in their zest to convert cases from CDPAP to LHCSA.
Providers wondering about their next steps should speak with their counsel. In addition to the SFI challenges that fiscal intermediaries are facing regarding the SFI, providers should not overlook the PMPM’s disastrous impact on the reimbursement rates of this program, potentially removing all incentives for providers to continue providing FI services. Therefore, even if the SFI was not going into effect, providers should re-evaluate the consumer direct business model from a financial standpoint and assess whether to convert cases, to the extent permitted, into a LHCSA.
Lastly, as a reminder to all providers, any contracts entered into with New York State, with the SFI, or any other entity that is providing services to the home care provider related to any transition matters or services, should be reviewed by counsel to ensure compliance with an array of healthcare laws but, also, business terms (e.g., noncompetition clauses, indemnification limits).
