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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

June 21, 2021

NYS DOH Releases CDPAP Fiscal Intermediary Survey—Continues March Toward Dismantling of CDPAP Provider Network

Following a brief pause to address certain concerns regarding the state’s move toward a tightly restricted Consumer Directed Personal Assistance Program (CDPAP) network, the New York State Department of Health (DOH) issued a survey on June 15, 2021, to all providers that submitted an application to the Request for Offers (RFO) to remain in the newly constituted provider network. The survey is a step toward opening the trimmed network to a limited number of additional providers.

All qualified offerors (including those that received an initial award under the RFO) are expected to complete the survey. Critically, the survey defines a qualified offeror to be “an entity that submitted a timely offer under the RFO and was determined by the DOH to have met the minimum requirements as outlined in RFO Section 3.1.” This means that only those providers who submitted an initial application and met the minimum qualifications will be considered. The DOH’s central office staff will review survey responses to determine additional awards.

The DOH’s survey seeks additional information from all qualified offerors pertaining to the offeror’s fiscal intermediary (FI) line of business as of March 3, 2020—the deadline for submission of offers under the RFO. The survey responses should only set forth information regarding the qualified offeror. Responses should not include any information pertaining to corporate affiliates or collaborating partners.

Importantly, the DOH clarified that the contracting process will not proceed until the survey process is complete and advised of its intent to make as few additional awards to satisfy the legislative criteria. Additional awards will be made to the next highest scoring qualified offeror(s) for all categories until the selection criteria have been met.

Additional awards will be based on certain award categories, including based on county population (Category 1), those agencies certified to deliver certain services by the Office for People With Developmental Disabilities (OPWDD) (Category 2), agencies with experience serving racial, ethnic and/or religious minorities and/or new Americans (Category 3), and agencies that are minority and women-owned business enterprises (MWBEs) (Category 4).

If the DOH selects a FI from Category 1, then the DOH may choose not to select a FI from Category 2. Put another way, a FI that meets criteria for Category 1 and 2 may be selected to satisfy the state’s mandate to pick “at least two additional” FIs for Category 2. The DOH is also authorized to make at least two additional awards for Category 3, and at least two additional awards from Category 4.

The DOH will be hosting two WebEx webinar sessions for offerors that are intended to provide an overview of the survey and allow for questions. The webinars will take place on June 21, 2021, at 2:00 p.m. and June 23, 2021, at 11:00 a.m.

Additional key dates related to the DOH’s survey process include:

  • June 25, 2021 (5:00 p.m. EDT): Deadline for submission of additional written questions
  • June 30, 2021: Question and answer document will be emailed to qualified offerors
  • June 30, 2021: Survey document will be issued to qualified offerors
  • July 30, 2021 (5:00 p.m. EDT): Deadline for submission of survey responses
  • On or After November 1, 2021: Anticipated contract start date for all awards

Members of Barclay Damon’s Health Care Controversies Practice Area are actively representing CDPAP providers affected by these recent developments and have extensive experience assisting providers with the review and completion of surveys. Barclay Damon attorneys will continue to monitor the DOH’s survey for fiscal intermediaries and other related developments.

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Practice Area chair, at; Mary Connolly, associate, at; Dena DeFazio, associate, at; or another member of the firm’s Health Care & Human Services or Health Care Controversies Practice Areas.

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