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April 15, 2021

NYS Legislature Passes Legislation to Reopen the CDPAP Fiscal Intermediary Procurement Process

As a follow-up to our March 23 and March 26, 2021, alerts regarding legislative efforts by the NYS Senate and Assembly, the NYS legislature has agreed to reopen the Consumer Directed Personal Assistance Program (CDPAP) procurement process for Request for Offers #20039 (RFO #20039). The legislation was proposed in response to the NYS Department of Health’s announcement of awards in February 2021. As of April 7, 2021, the bill was passed by the assembly and senate, had been delivered to NYS Governor Cuomo, and would be effective immediately upon enactment.

The legislation will require the Commissioner of the Department of Health for New York State to survey all applicants that met the minimum criteria for an award pursuant to RFO #20039. Applicants will be given 30 days to respond to the survey, and any applicants that fail to respond to the survey will be disqualified from consideration for any additional contract awards. The survey will seek the following information from applicants:

  1. Whether the applicant is formed as a charitable corporation or is authorized as a foreign not-for-profit corporation
  2. Whether the applicant was performing fiscal intermediary services prior to January 1, 2012, and has continuously provided services since that date
  3. The address listed as the primary mailing address on the applicant’s most recent state corporate tax return or federal income tax exempt form
  4. Whether the applicant is currently authorized, funded, approved, or certified to deliver services under the Medicaid state plan or home and community-based services (HCBS) waiver to individuals with intellectual and developmental disabilities by the Office for People with Developmental Disabilities (OPWDD)
  5. Whether the applicant has historically provided fiscal intermediary services to racial and ethnic minority residents or new Americans in the consumer’s primary language, as evidenced by information and materials provided to consumers
  6. Whether the applicant is verified as a minority- or woman-owned business enterprise (MWBE)

Following the receipt of survey responses, the commissioner is directed to make awards to qualified applicants that previously submitted offers under RFO #20039 in addition to any awards already announced. Pursuant to the bill’s language, additional awards must be made to:

  1. One or two additional applicants that are located in each county with a population of more than 200,000, but less than 500,000 people
  2. At least two additional applicants that are organized as a not-for-profit corporation or authorized as a foreign not-for-profit corporation or have been performing fiscal intermediary services continuously since before January 1, 2012, in each of the following categories:
    • Applicants that are currently authorized, funded, approved, or certified to deliver Medicaid state plan or HCBS waiver supports and services to individuals with intellectual and developmental disabilities by the OPWDD
    • Applicants that serve racial and ethnic minority residents, religious minority residents, or new Americans in those consumers’ primary language, as evidenced by information provided to consumers in their primary language
  3. At least two additional applicants that have been verified as MWBEs

The legislation also provides that these awards may only be made to the extent that applicants meet the prescribed criteria based on the results of the survey and submitted qualifying applications, and that awards need not be made if there is no applicant that meets the specified criteria. Finally, the previous offers scored by the NYS Department of Health will not be rescored. Rather, the contracts will be awarded to the next highest-scoring applicants that meet the new criteria. Importantly, the commissioner is authorized to either reoffer contracts for fiscal intermediary services or utilize the previous offer (RFO #20039) to ensure that the legislation’s provisions are met.

Members of Barclay Damon’s Health Care Controversies Practice Area are actively representing CDPAP fiscal intermediaries affected by these legislative changes and will continue to monitor any future developments. For more information on the new legislation, please see Part LL of the Senate Health and Mental Hygiene Budget Bill S2507C.

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Practice Area chair, at; Eugene Laks, of counsel, 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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