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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.

July 31, 2020

NYS Home Care Providers Face Uncertain Future

The NYS Department of Health (DOH) released proposed regulations that would limit the Medicaid personal care services benefit, including the consumer directed personal assistance services benefit. As part of the state’s budget implementation, the draft regulations would:

  • Require an “independent” physician, not a patient’s treating physician, to sign an order for personal care services for new patients beginning October 1. The independent physician would be employed by or contracted with a DOH-approved organization.
  • Require the establishment of an independent assessor to take over the patient assessment and reassessment functions to determine an individual’s need for services, removing these functions from the local county Department of Social Services or Medicaid managed care organization purview
  • Require assistance with more than two activities of daily living (ADL) or, if the patient has Alzheimer’s or dementia, at least one ADL as a threshold criteria to qualify for personal care services
  • Establish that the qualification for services would include a financial costs analysis
  • Establish threshold criteria to qualify for services in excess of 12 hours per day
  • Require a clinical review panel to approve services in excess of 12 hours per day

In addition to curtailing the Medicaid personal care services to be provided, the DOH will be limiting the number of licensed home care services agencies (LHCSA) authorized to provide home care services. Any LHCSA serving Medicaid patients, whether directly or through a Medicaid managed care organization, will require a DOH contract. The number of contracts will be limited by service region. A survey was recently conducted—ostensibly for purposes of developing a need analysis for a new certificate of need program for limiting new entrants—where providers were required to identify the number of clients served by county.

Notably, the state’s implementation of these requirements will require federal approval. The state’s application to the Centers for Medicaid and Medicare Services is expected to be published by the DOH in the NYS Register this summer.          

Barclay Damon LLP can assist you in responding to these proposed requirements, preparing for the future in an uncertain environment, and challenging the state in court to preserve your ability to provide quality services.

If you have any questions regarding the content of this alert, please contact David Glasel, of counsel, at; Gene Laks, of counsel, at; or another member of the firm’s Health Care & Human Services Practice Area or Health Care Controversies Team.

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