1915(k) Community First Choice Option in New York State

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1 1915(k) Community First Choice Option in New York State BACKGROUND Key Questions and Issues for Implementing the Community First Choice Option in New York State Prepared by New York State ADAPT February 10, 2012 The Community First Choice (CFC) Option is an optional Medicaid State Plan Amendment, also referred to as a 1915(k) State Plan Amendment, that provides assistance with activities of daily living (ADLs), instrumental activities of daily living (IADLs), and health-related functions through hands-on assistance, safety monitoring or supervision, and cueing. CFC was designed to assure that services and supports are provided in a manner that allows people to lead an independent life with a strong focus on consumer direction. CFC supports choice, independence, and integration in accordance with the Supreme Court Olmstead decision. On March 18, 2011, the Cuomo administration announced that New York State would be selecting the CFC Option. This decision sets the stage for New York to address some critical issues with the current system for providing long term services and supports. CFC establishes a new framework for giving people with all types of disabilities in New York real opportunities for independence and integration. ABOUT THIS DOCUMENT This document is meant to begin important discussions within the disability rights and aging communities about the development of the CFC Option. Because this document is intended for those interested in policy and program development, it is structured to match the proposed federal rules for the CFC Option. This is intended to assure that advocates can place these discussions and issues in the context of the proposed federal rules. Again, these issues and questions are meant to serve as a starting point for discussion about CFC implementation in the State. NYS ADAPT hopes that this document can be used to help facilitate a shared vision among disability and aging organizations for CFC implementation in New York. ACKNOWLEDGEMENTS NYS ADAPT would like to express its appreciation to the organizations that assisted in the development of this document in the independent living, disability rights, senior advocacy, developmental disability self-advocacy, and psychiatric survivor communities.

2 DEFINITIONS ( ) The proposed rules begin with a section on definitions. In different services systems, some of these terms may have different meanings. It will be important for advocates involved in the development of New York s plan to implement the CFC Option to understand the meaning of these terms within the context of the proposed federal rules for CFC implementation. As used in this subpart: Activities of daily living (ADLs) means basic personal everyday activities including, but not limited to, tasks such as eating, toileting, grooming, dressing, bathing, and transferring. Agency-provider model means, with respect Note that the agency-provider model includes both traditional to the provision of home and communitybased attendant services and supports, a agency-managed home care as well as the Consumer Directed Personal Assistance Program fiscal intermediary model currently method of providing self-directed services employed in New York State. and supports under which entities contract for the provision of these services and supports. Backup systems and supports means electronic devices used to ensure continuity of services and supports. These items may include pagers, personal emergency response systems, and other mobile communication devices. Persons identified by an individual can also be included as backup supports. The availability of backup is critical to effective implementation of the CFC Option. Without reliable coverage and backup support for emergencies, community living isn t as viable an option for people with significant disabilities. Approaches to providing effective backup will vary on the programmatic approaches used. For example, coverage expectations for agency-managed services will be different from backup in consumer directed services. An individual s backup needs may also vary based on the type and significance of their disability so developing individualized backup supports will be important and should crossover to the person-centered plan of care. Health-related tasks means specific tasks related to the needs of an individual, which can be delegated or assigned by licensed health-care professionals under State law to be performed by an attendant. Individual s representative means a parent, family member, guardian, advocate, or other authorized representative of the individual. Handling health-related functions will also be a critical issue. Although there is a clear model for dealing with the Nurse Practices Act (NPA) in the NYS Consumer Directed Personal Assistance Program (CDPAP), the current approach of using nurses in other programs is problematic due to high cost and limited availability. Traditional home care providers have advocated simply expanding the CDPAP exemption to all home care, but both that approach and nurse delegation may have unintended consequences. Consumer advocates will need to develop some consensus on how to handle health-related functions outside of full consumer direction. 2 Key Questions for Implementing CFC

3 Instrumental activities of daily living (IADLs) means activities related to living independently in the community, including but is not limited to, meal planning and preparation, managing finances, shopping for food, clothing, and other essential items, performing essential household chores, communicating by phone or other media, and traveling around and participating in the community. Other models means methods, other than an agency-provider model, for the provision of self-directed services and supports. These models may include the provision of vouchers, direct cash payments, or use of a fiscal agent to assist in obtaining services. 3 Key Questions for Implementing CFC In New York, assistance with IADLs has been limited, and primarily only available under waiver programs. Assistance with IADLs includes: care of others (including selecting and supervising caregivers), care of pets, child rearing, use of communication devices, community mobility, financial management, health management and maintenance, meal preparation and cleanup, and safety procedures and emergency responses. The State and providers have typically tried to restrict access to assistance with IADLs, so advocates need to assure that assistance with IADLs is adequately defined in the State s plan to implement the CFC Option. When making these determinations, it will be important to not only consider the three major categories of eligibility (based on institution), but the potential unique IADL assistance needs for other unique sub-populations, including Autistic people and Deaf-Blind individuals. Assistance with certain tasks, like transportation and snow removal for access and egress, have been particularly problematic within traditional home care and will also need to be addressed. Self-directed means a consumer controlled method of selecting and providing services and supports that allow the individual, or where appropriate, the individual s representative, maximum control of the home and community-based attendant services and supports, regardless of who acts as the employer of record. ELIGIBILITY ( ) It is ADAPT s understanding that the eligibility section of the proposed rules will change significantly in the final rules. Rather than follow the proposed rules, this section of the document uses the statute. To receive Community First Choice services under this section, an individual must meet the following requirements: (a) Be eligible for medical assistance under the State plan. (b) Have an income that meets one of the following thresholds as determined annually: (1) Is equal to or less than 150 percent of the Federal poverty level (FPL). (2) Is greater than 150 percent of the FPL, and is eligible for nursing facility services under the State plan and for whom it has been determined that in the absence of home and community-bases attendant services and supports, the individual would otherwise require a While institution for mental diseases (IMD) means a hospital, nursing facility, or other institution of more than sixteen beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases [42 USC 1396d], it has been used as a mechanism to limit Medicaid payments. A variety of settings with more than sixteen beds that primarily serve persons with mental diseases are considered IMDs, including group homes and adult homes. Consequently, although there are clear eligibility criteria for eligibility in nursing facilities and intermediate care facilities, this is not the case with IMDs. Advocates need to develop a common understanding of what it means to be IMD-eligible to effectively advocate for CFC implementation.

4 Medicaid covered level of care furnished in a hospital, a nursing facility, an intermediate care facility for the mentally retarded or an institution for mental diseases. (3) Qualifies for Medicaid assistance under the special home and community-based waiver eligibility group defined at section 1902(a)(10)(A)(ii)(VI) of the Act, and is receiving at least one home and community-based waiver service per month. (c) In determining whether the 150 percent of the FPL requirement is met, States must apply the same income disregards in accordance with section 1902(r)(2) of the Act as they do under their Medicaid State plan. STATEWIDENESS ( ) Although this section of the rules is titled Statewideness, it has a far greater significance to the development of the Community First Choice Option and provides advocates with some of the most important language regarding the development of the CFC Option. States must provide the Community First Choice Option to individuals: (a) On a Statewide basis. (b) In a manner that provides such services and supports in the most integrated setting appropriate to the individual s needs, and without regard to the individual s age, type or nature of disability, severity of disability, or the form of home and community-based attendant services. 4 Key Questions for Implementing CFC The rules indicate that services and supports must be provided in the most integrated setting. This takes language from the most integrated setting mandate of the ADA and inserts it into rules for development of home and community-based services. Advocates need to develop a common understanding of the integration mandate and how this mandate gets operationalized in the CFC Option. The rules indicate that services and supports need to be provided without regard to the individual s age, type or nature of disability. Unlike the current system for providing long term services and supports, which organizes services based on age and disability, the CFC Option is different. Existing services are provided through various State agencies (DOH, OMH, OPWDD) serving specific populations. The CFC Option is expected to serve all of the populations served by multiple State agencies. Advocates will need to develop a common understanding of where the CFC Option gets housed within the administration and how the services and supports provided through the CFC Option are coordinated with those provided through population-specific State agencies. Additionally, a number of different types of managed care are currently in development. Each of these may also include CFC services and supports and therefore will need to coordinated. The rules indicate that services and supports need to be provided without regard to the individual s severity of disability. Advocates will want to assure that people with the most significant disabilities are able to receive the services and supports they need to live in the most integrated setting as part of the implementation of the CFC Option.

5 (c) In a manner that provides the supports that the individual requires in order to lead an independent life. Traditional agency-managed home care services restrict the independence of people with disabilities in a number of different ways. Outside of CDPAP, services are often provided under a medical-model framework that focuses on the medical needs of the individual without regard to their ability to lead an independent life. Inadequate coverage and restrictions on attendant activities (both by the State and provider agencies) including a restriction on using services outside of the home limit independence as well. The CFC rules indicate that services and supports must be provided in manner that the individual requires in order to lead an independent life. Advocates will need to identify specific issues in the current system that potentially interfere in people leading an independent life that need to be addressed in development of the CFC Option. As the state moves into managed care, advocates need determine what specific language addressing these issues should be incorporated into managed care contract language. REQUIRED SERVICES ( ) The CFC rules list required services that must be provided under the CFC Option as well as permissible services that may be provided under the CFC Option. Advocates will need to carefully consider the services and supports that are currently available through the various state agencies as well as those that will need to be available under the CFC Option in order to develop a consensus on the package of services and supports provided through the Option. (a) If a State elects to provide the Community First Choice Option, the State must provide all of the following services: (1) Assistance with ADLs, IADLs, and health-related tasks through hands-on assistance, supervision, or cueing. (2) Acquisition, maintenance, and enhancement of skills necessary for the individual to accomplish ADLs, IADLs, and health related tasks. As previously discussed, advocates need to address how assistance is provided related to IADLs and health-related functions. Currently, assistance with the acquisition, maintenance, and enhancement of skills necessary for the individual to accomplish ADLs, IADLs, and health related tasks are provided under several different waivers. Advocates need to identify skill-building services that need to be incorporated into CFC, including habilitation services, independent living skills training, as well as peer counseling or peer mentoring which can be one of the most effective approaches to skill development. Advocates will also need to identify if there are other specific services, such as mobility skills training, that are needed as well. 5 Key Questions for Implementing CFC

6 (3) Backup systems or mechanisms to ensure continuity of services and supports, as defined in of this subpart. As previously discussed, advocates need to define backup within each of the service approaches and establishing expectations that ensure continuity of services and supports in agency-managed services. (4) Voluntary training on how to select, manage, and dismiss attendants. Advocates need to determine what content is included in this training and who provides it, including whether to establish an expectation that this training should be provided by disability-led organizations, using a peer model. (b) The State may provide permissible services and supports which include the following: (1) Expenditures for transition costs such as rent and utility deposits, first month s rent and utilities, bedding, basic kitchen supplies, and other Transition costs can be paid under some of the existing HCBS waivers. Advocates need to clarify the scope of what transition services should be covered under the CFC Option. necessities required for an individual to transition from a nursing facility, institution for mental diseases, or intermediate care facility for the mentally retarded to a community-based home setting where the individual resides. (2) Expenditures relating to a need identified in an individual s person centered plan of services that increase a participant s independence or substitute for human assistance, to the extent that expenditures would otherwise be made for the human assistance. The CFC Option can pay for additional expenditures for needs identified in an individual s person centered plan of services that increase a participant s independence or substitute for human assistance. In California, one concept currently being considered is a Restaurant Meal Allowance. New York advocates need to determine what we expect with regard to this section and should identify examples of allowable expenditures that increase independence or substitute for human assistance, making sure to address the full range of people who would be served, as well as the full range of communities in which people reside (e.g. rural). (3) The services and supports that are purchased must be linked to an assessed need or goal established in the individual s person-centered service plan. EXCLUDED SERVICES ( ) The CFC Option was never intended to meet every need of people with disabilities or duplicate other funding streams and must function within the context of services and supports through other systems that provide for a fully integrated, independent life. For example, affordable, accessible, integrated housing is not a component of CFC but, unquestionably, advocates need to consider how CFC will fit with housing initiatives as NYS moves forward with CFC implementation. 6 Key Questions for Implementing CFC

7 The Community First Choice Option may not include the following: (a) Room and board costs for the individual, except for allowable transition services described in (b)(1) of this subpart. (b) Special education and related services provided under the Individuals with Disabilities Education Act that are related to education only, and vocational rehabilitation services provided under the Rehabilitation Act of In preliminary discussions about the CFC Option, State staff at OPWDD expressed concern that some habilitation services provided through OPWDD would be considered vocational rehabilitation services provided under the Rehabilitation Act of 1973 and that implementation of the CFC Option should coordinate with those services. Because some assistance provided with IADLs could be provided under both systems, advocates will need to clarify the line between vocational rehabilitation services and IADL needs met through the CFC Option. (c) Assistive devices and assistive Advocates may notice that part of the rules references a nonexistent subsection. The final rules should clarify the exception technology services other than those defined in (a)(5) of this subpart described here. or those that are based on a specific need identified in the service plan when used in conjunction with their home and community-based attendant services. (d) Medical supplies and equipment. (e) Home modifications. SETTING ( ) Although not directly linked to CFC, given that the waivers will soon be rolled into managed care and the fate of the waiver services is unknown, we need a plan to address the provision of services necessary to support independence in the community, such as home and vehicle modifications. The proposed rules outline settings in which CFC services may not be provided to ensure that CFC services and supports are provided in fully integrated, non-institutional settings. Advocates need to carefully consider the issue of setting. States must make available attendant services and supports in a home or community setting, which do not include the following: (a) A nursing facility. (b) An institution for mental diseases. (c) An intermediate care facility for the mentally retarded. (d) Any settings located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment or custodial care. 7 Key Questions for Implementing CFC

8 (e) A building on the grounds of or immediately adjacent to, a public institution or disability-specific housing complex, designed expressly around an individual s diagnosis that is geographically segregated from the larger community, as determined by the Secretary. ASSESSMENT OF NEED ( ) The potential exists for facility-based models of care to take advantage of these funds, bringing all of the potential for abuse in congregate settings without the oversight and protections that come under the current regulatory oversight. The federal rules set a framework upon which the state builds its CFC program, however the state can be more restrictive than the federal rules. This presents an opportunity for advocates to establish a critical dialogue on this issue and strengthen the definition of community as part of NYS implementation of CFC. Advocates need to understand the purpose of the CFC Option and determine if there are additional settings that should be excluded and how that gets defined. Assessment for services is defined in this section of the rules which determine that the process must address needs, strengths, and preferences. The assessment must also be based on functional need, not diagnosis (as previously discussed) and serve as the basis for a person-centered plan. States must conduct a face-to-face assessment of the individual s needs, strengths, and preferences in accordance with the following: (a) States may use one or more processes and techniques to obtain information about an individual including the following: (1) Health condition. (2) Personal goals and preferences for the provision of services. (3) Functional limitations. (4) Age. (5) School. (6) Employment. (7) Household. (8) Other factors that are relevant to the need for and authorization and provision of services. Advocates need to address how the assessment process interacts with the person-centered planning process, the authorization of services, and appeal process where the individual disagrees with the authorization. Answering these questions and identifying who does the assessment will be a critical question, particularly in the context of the shift to managed care. One of the most significant barriers to services under some HCBS waivers is the length of time it takes to enroll in services. Additionally, access to personal care services can take months if a county won t do the assessment in a timely fashion. Implementation of CFC needs to include standards to ensure that assessments are completed in a timely manner. Other sections in the rules reference that the assessment must be person-centered. Advocates need to develop a consensus on what that means, based on experience from the various populations served under the CFC Option. Advocates need to identify if there are any other critical components of the assessment that need to be included and how this relates to current discussions surrounding the development of a Uniform Assessment Tool. 8 Key Questions for Implementing CFC

9 (b) Assessment information supports the determination that an individual requires the Community First Choice Option and also supports the development of the person-centered service plan and, if applicable, service budget. The Assessment information supports the determination that an individual requires the Community First Choice Option expectation may change based on the likely changes in the eligibility section of the final rules. If it remains in the final rules, advocates need to ensure that implementation of this provision does not exclude eligible individuals from receiving services and supports under the CFC Option. (c) The assessment of need must be conducted at least every 12 months, as needed when the individual s support needs or circumstances change Advocates need to determine how changes from the assessment process impact the person-centered plan. significantly necessitating revisions to the service plan, or at the request of the individual, or the individual s representative, as applicable. PERSON-CENTERED SERVICE PLAN ( ) This section first defines the process and then defines the plan. Currently, different state agencies have different planning processes. Advocates need to become familiar with each of these systems to determine how best to proceed in the development of a planning process for the CFC Option. (a) Person-centered planning process. The person-centered planning process must include the following criteria: Given the move toward managed care, and the fact that multiple types of managed care organizations are being developed, advocates need to develop a consensus on how the personcentered planning process is incorporated into managed care and who assists with this process. One model may be to have disability-led organizations assist in the planning process under contract with the MCOs which handle the authorization of services. (1) Includes people chosen by the individual. Advocates may want to strengthen this provision in the state rules to ensure that the person has control over who sits at the table, not just who can be included. 9 Key Questions for Implementing CFC

10 (2) Provides necessary support to ensure that the individual has a meaningful role in directing the process. Advocates need to define and give examples of necessary support that would be provided in the person-centered planning process. In addition to basic accessibility, support could include assistance processing information or managing emotional responses to the process. Advocates also need to define what is meant by a meaningful role as our collective experience is that, too often, people with disabilities are not afforded a meaningful role. (3) Occurs at times and locations of convenience to the individual. Advocates need to identify and address any other issues related to this provision. For example, there may be locations that are convenient but not conducive to the planning process for the individual such as an institutional setting where the individual previously was forced to live. (4) Reflects cultural considerations of the individual. Advocates will need to define expectations that assure the planning process is done in a culturally competent and linguistically appropriate manner, but should expand this understanding to address cultural considerations of groups that are not typically recognized in these discussions such as the LGBT and disability communities. (5) Includes strategies for solving conflict or disagreement within the process, including clear conflict-of-interest guidelines for all planning participants. (6) Offers choices to the individual regarding the services and supports they receive and from whom. This provision has implications regarding how services are contracted for by managed care entities. Advocates will want to determine criteria to assess compliance with this provision. For example, advocates will need to consider if offering two organizations as potential providers adequately offers the individual a choice. Advocates may also want to establish expectations regarding the types of choices that should be available to individuals, including any expectations that certain options be available, such as disability-led organizations providing services. (7) Includes a method for the individual to request updates to the plan. Advocates should discuss the mechanism associated with this as this may be considered an important protection from being forced into certain types of treatment or services. 10 Key Questions for Implementing CFC

11 (b) The person-centered plan. The person-centered plan must reflect the services that are important for the individual to meet individual services and support needs as assessed through Advocates from each of the major eligibility groups need to work together to define what this provision means and how it gets operationalized. a person-centered functional assessment, as well as what is important to the person with regard to preferences for the delivery of such supports. Commensurate with the level of need of the individual, the plan must include the following criteria: (1) Reflect the individual s strengths and preferences. Advocates may need to emphasize that preferences are a key component of the planning process. Preferences allow individuals to determine how to live their lives and they are not merely an optional wish list that can be ignored. (2) Reflect clinical and support needs as identified through a person-centered functional assessment. (3) Include individually In a medical model approach, goals are developed as targets for identified goals, which may the individual to meet. Given that historical bias in service include, as desired by the delivery, advocates may need to emphasize that goals be defined individual, items related to as establishing what the services and providers need to support, relationships, community as opposed to targets the individual needs to meet. participation, employment, income and savings, health care and wellness, education, and others. (4) Reflect the services and supports (paid and unpaid) that will assist the individual to achieve identified goals and the providers of those services and supports. Under the current model of home care, assessments have frequently been done with the assumption that informal care by family members is an expectation and personal responsibility. Some people report that they have been pressured to have family members provide their assistance even when it wasn t the most appropriate choice, e.g. an adult son with a disability required to receive toileting assistance from his mother or a woman with a disability being told she should have her pre-teen daughter perform her personal care. In light of this concern, advocates need to ensure that this provision is not used to force families to provide unpaid care or that people are required to receive assistance from family that is not appropriate. 11 Key Questions for Implementing CFC

12 (5) Reflect risk factors and measures in place to minimize them, including back-up strategies when needed. Concerns about managing risk have resulted in people being denied home care assistance. A common reason for denial is the lack of informal backup in the home; agencies refuse to serve people with disabilities who do not live with family members who will perform their care. Concerns about risk and safety have become one of the most common ways home care has limited access to services. Advocates need to ensure that this provision is implemented in a way that is respectful of the individual and is not used to prevent individuals from accessing services and supports under the CFC Option. (6) Be signed by all individuals and providers responsible for its implementation. (7) Be understandable to the individual receiving services and the individuals important in supporting him or her. This provision can be used by advocates to assure that the plan is understandable to anyone served under the CFC Option, including people with intellectual disabilities, dementia, and sensory disabilities as well as non-english speakers or those for whom English is not their primary language. (8) Include a timeline for review. Our experience with HCBS waiver services indicates that advocates should look at how the timeline is defined. There have been problems with both the writing and approval of plan development under the HCBS waivers. The CFC Option should include an expedited approval process that assures basic necessary services are put in place even before the full plan is developed and finalized. This process should be flexible enough to meet the varying needs people may have and simple enough to assure that services can be put in place in a timely manner.. (9) Identify the individual and/or entity responsible for monitoring the plan. Advocates need to develop a consensus on how to address this provision. Under managed care, the MCO could contract for person-centered planning services and care but be responsible for monitoring the plan. With whatever model advocates develop, these functions need to be carefully defined. This provision should also identify what happens if the plan is being implemented incorrectly. 12 Key Questions for Implementing CFC

13 (10) Be distributed to everyone involved (including the participant) in the plan. Advocates need to ensure that this happens in accordance with the individual s preferred language and format. This provision is meant to assure that the individual is engaged in the planning process, not serve as a gate-keeping function that limits access to services. (11) Be directly integrated into self-direction where individual budgets are used. (12) Prevent the provision of unnecessary or inappropriate care. Although this provision is meant to address fraud, advocates may want to consider expanding the definition of inappropriate to include services that are unwanted by the individual or not provided in the most integrated setting. (c) Requirements of the plan. All of the State s applicable policies and procedures associated with the person-centered service plan development must be carried out and must include, but are not limited to, the following policies and procedures: (1) Ensure the responsibilities for assessment of need and service plan development are identified. (2) Ensure the planning process is timely. Advocates will need to determine what is meant by timely and, as stated previously, the inclusion of an expedited enrollment process will be critical to successful implementation of the CFC Option to assure that individuals are not forced into institutional settings. (3) Ensure the individual s needs are assessed and the services and supports meet the individual s needs. Advocates will need to address the issue of safety as it relates to this provision and how that definition is operationalized. While services and supports should meet the individual s needs, the individual needs to drive this process which must include protections that prevent individuals from being forced to accept services and supports they do not want. (4) Establish conflict of interest standards for assessment of need and the service plan development process that apply to all individuals and entities, public or private. At a minimum, these standards must ensure that the individuals or entities involved in the person-centered assessment of need and service plan development process are not: (i) (ii) Related by blood or marriage to the individual, or to any paid caregiver of the individual. Financially responsible for the individual. 13 Key Questions for Implementing CFC

14 (iii) (iv) Empowered to make financial or health-related decisions on behalf of the individual. Individuals who would Recognizing that the State will not implement any program that benefit financially from precludes managed care, advocates need to identify and mitigate the provision of any potential conflicts of interest, particularly given that the assessed needs and managed care organization has a financial responsibility for the services. services authorized in the person-centered plan. (d) Finalizing the person-centered service plan. The service plan must be finalized and agreed to in writing by the individual or, as appropriate, the individual s representative and a copy of the plan must be provided to the individual. (e) Reviewing the person-centered service plan. The service plan must be reviewed, and revised upon reassessment of need, at least every 12 months, when the individual s circumstances or needs change significantly, and at the request of the individual or the individual s representative, as applicable. SERVICE MODELS ( ) The rules permit states to select a number of different service models which can include a variety of approaches and offer individuals varying amounts of control. Every service model must provide the individual, or their representative, the right to select and dismiss their workers. A State may choose one or more of the following as the service delivery model to provide self-directed home and communitybased attendant services and supports: (a) Agency model. Services in New York are available in a range of models from a traditional agency-managed home care model through one where the individual has budget authority. Even though consumer directed models have been demonstrated to be more cost-effective, the current system has often limited access to those approaches because of the underlying assumption (stereotype) that people who need assistance need to be taken care of and cannot manage their own care. Although models exist that afford individuals the opportunity to assert direct budget control, access to those models is limited. Advocates need to understand the range of alternative models available and advocate that the full range of approaches be implemented. (1) The agency model is a delivery method in which the services and supports are provided by entities under a contract. 14 Key Questions for Implementing CFC

15 (2) Under the agency model for the Community First Choice option, individuals maintain the ability to hire and fire the providers of their choice for the services identified in their person-centered service plan. New York s traditional personal care and CDPAP are both considered agency model under the federal rules because individuals do not set the pay rates in CDPAP. Still, the CDPAP model in New York is a fiscal intermediary model and that must be preserved. Advocates need to draw distinctions between these two discrete service models within this agency model approach and assure that the unique CDPAP fiscal intermediary model is not lost or diminished. Even under what would be considered a traditional home care model in the CFC Option, individuals maintain the ability to hire and fire the providers of their choice. This provision of the rules provides individuals with disabilities the right to select and dismiss workers even within that traditional model. Advocates need to avoid an interpretation of provider as agency so that participants can select, manage and dismiss works within a traditional agency model. (b) Self-directed model with service budget. A self-directed model with a service budget is one in which the individual has both a service plan and service budget based on the person-centered assessment of need. (1) Financial management entity. States must make available financial management services to all individuals with a service budget. The financial management entity performs functions including, but not limited to, the following services: Advocates may want to ensure that the State does not select only one statewide vendor to serve as a financial management entity under the self-directed model with service budget, as local entities are better able to provide the supports that promote success. (i) Collect and process timesheets of the individual s workers. (ii) Process payroll, withholding, filing, and payment of applicable Federal, State and local employment related taxes and insurance. (iii) Maintain a separate account for each individual s budget. (iv) Track and report disbursements and balances of each individual s funds. (v) Process and pay invoices for services in the service plan. (vi) Provide individual periodic reports of expenditures and the status of the approved service budget. (vii) States may perform the functions of a financial management entity internally or use a vendor organization that has the capabilities to perform the required tasks in accordance with applicable IRS requirements. (2) Direct cash. States may disburse cash prospectively to individuals self-directing their Community First Choice Option services and supports and must meet the following requirements: 15 Key Questions for Implementing CFC

16 (i) (ii) (iii) (iv) (3) Vouchers. (i) (ii) Ensure compliance with all applicable requirements of the Internal Revenue Service, including but not limited to, retaining required forms and payment of FICA, FUTA and State unemployment taxes. Permit individuals, or their representatives as applicable, using the cash option to choose to use the financial management entity for some or all of the functions described in paragraph (b)(1)(ii) of this section. Make available a financial management entity to an individual who has demonstrated, after additional counseling, information, training, or assistance that the individual cannot effectively manage the cash option described in this section. If the cash option is the only model offered by the State for Community First Choice, the State may require an individual to use the financial management entity services under the cash option, but must provide the individual with the conditions under which this option would be enforced. States have the option to issue vouchers to individuals who selfdirect their Community First Choice Option services and supports. Vouchers are not currently available in New York. Advocates will need to consider what this model would offer individuals in New York. States that choose to offer the vouchers must ensure compliance with all applicable requirements of the Internal Revenue Service. SERVICE PLAN REQUIREMENTS FOR SELF-DIRECTED MODEL WITH SERVICE BUDGET ( ) The rules included a specific section on service plan requirements for the self-directed model with service budget. Although a cash and counseling model (OPWDD s Community Support Services) is currently available through OPWDD, it seems that it may be difficult to replicate that program on a wider scale. The administration has expressed some concern about implementing this model as well. Advocates will need to consider how this model can be effectively implemented in New York. An approved self-directed service plan conveys authority to the individual to perform, at a minimum, the following tasks: (a) Recruit and hire workers to provide self-directed services, including specifying worker qualifications. (b) Fire workers. (c) Supervise workers in the provision of Community First Choice Option services and supports. (d) Manage workers in the provision of Community First Choice Option services and supports, which includes the following functions: 16 Key Questions for Implementing CFC

17 (1) Determining worker duties. (2) Scheduling workers. (3) Training workers in assigned tasks. (4) Evaluating workers performance. (e) Determining the amount paid for a service, support, or item. (f) Reviewing and approving provider invoices. SUPPORT SYSTEM ( ) In the CDPAP model, there have been concerns about attendants performing certain duties that, although they were needed for independent living, were not medically necessary. Given that the CFC Option reframes the purpose of the assistance (as noted above), advocates may want to specifically consider and address this issue in terms of the individual being able to determine worker duties. The proposed rules state that the following support systems must be provided for the individuals who select the self-directed model with service budget. For the self-directed model with a service budget, States must provide, or arrange for the provision of, a support system that meets all of the following conditions: The CDPAP model used in New York is considered under federal rules to be an agency model because individuals do not have control over the budget. They do, however, have control over every other aspect of their services. Some of the supports identified in this section of the rules would be helpful to individuals in the CDPAP model. Advocates may want to consider extending these provisions to cover that approach to selfdirected services under the agency model. (a) Appropriately assesses and counsels an individual, or the individual s representative, if applicable, before enrollment. (b) Provides appropriate information, counseling, training, and assistance to ensure that an individual is able to manage the services and budgets. (2) This information must be communicated to the individual in a manner and language understandable by the individual. (3) The support activities must include at least the following: (i) Person-centered planning and how it is applied. (ii) Range and scope of individual choices and options. (iii) Process for changing the person-centered service plan and service budget. (iv) Grievance process. (v) Risks and responsibilities of self-direction. (vi) The ability to freely choose from available home and community-based attendant providers. (vii) Individual rights. (viii) Reassessment and review schedules. (ix) Defining goals, needs, and preferences. (x) Identifying and accessing services, supports, and resources. (xi) Development of risk management agreements. 17 Key Questions for Implementing CFC

18 (xii) Development of a personalized backup plan. (xiii) Recognizing and reporting critical events. (xiv) Information about an advocate or advocacy systems available in the State and how an individual, or individual s representative, if applicable, can access the advocate or advocacy systems. SERVICE BUDGET REQUIREMENTS ( ) One of the primary requests that individuals with disabilities and seniors make is to control their budget to buy the individualized goods and services that they require to live independently. The only model that currently exists in New York that allows inviduals to control their budgets is under the OPWDD model for Community Support Services (CSS) and, while the concept is strong, the implementation has proven to have several limitations. Therefore, this is an opportunity for advocates to build on the experience of OPWDD to develop a model that will benefit people with all types of disabilities. (a) For the self-directed model with a service budget, a service budget must be developed and approved by the state based on the assessment of need and service plan and must include all of the following requirements: Given the shift toward managed care, advocates will need to discuss how approval of service budgets is done and whether they will be approved by the State, the managed care organization, or some other entity. In the event that an individual has a guardian or a rep payee, care must be taken to ensure that they are working in the best interest and consistent with the wishes of the individual. (1) The specific dollar amount an individual may use for Community First Choice Option services and supports. (2) The procedures for informing an individual of the amount of the service budget before the service plan is finalized. (3) The procedures for how an individual may adjust the budget including the following: (i) (ii) The procedure for an individual to freely change the budget. The circumstances, if any, that may require prior approval by the State before a budget adjustment is made. (4) The circumstances, if any, that may require a change in the service plan. (5) The procedures that govern the determination of transition costs and expenditures, relating to a need in the service plan, that increase independence or substitute for human assistance to the extent that expenditures would otherwise be made for human assistance. (6) The procedures for an individual to request a fair hearing under of this part if an individual s request for a budget adjustment is denied or the amount of the budget is reduced. (b) The budget methodology set forth by the State to determine an individual s service budget amount must meet all of the following criteria: (1) The State s method of determining the budget allocation is objective and evidence based utilizing valid, reliable cost data. 18 Key Questions for Implementing CFC

19 (2) Be applied consistently to individuals. (3) Be included in the State plan. (4) Includes a calculation of the expected cost of Community First Choice Option services and supports, if those services and supports are not self-directed. (5) The State has a process in place that describes the following: (i) Any limits it places on Community First Choice Option services and supports, and the basis for the limits. (ii) Any adjustments that are allowed and the basis for the adjustments. (c) The State must have procedures in place that will provide safeguards to individuals when the budgeted service amount is insufficient to meet the individual s needs. (d) The State must have a method of notifying individuals of the amount of any limit that applies to an individual s Community First Choice Option services and supports. (e) The budget may not restrict access to other medically necessary care and services furnished under the State plan and approved by the State but which are not included in the budget. (f) The State must have a procedure to adjust a budget when a reassessment indicates a change in an individual s medical condition, functional status, or living situation. PROVIDER QUALIFICATIONS ( ) The rules allow the state to determine qualifications, and include new important rights for people with disabilities served under the CFC Option. (a) The State must provide assurances that necessary safeguards have been taken to protect the health and welfare of enrollees in the Community First Choice State Option, and must define in writing adequate qualifications for providers in the agency model of Community First Choice services and supports. There have been serious problems with the Licensed Home Care Services Agency (LHCSA) model for providing home care assistance. Using that model, the Department of Health has pushed even waiver services toward increased medicalization with increased costs and reduced individual control. Advocates will need to consider the health and safety issues that need to be addressed and assist the State in finding a balance between those and individual autonomy and the right to independence. As noted previously, there is no level of home care worker (aside from private duty nurse) that can assist with health-related functions (under a traditional model). Advocates will need to address provider qualifications for this level of assistance. Advocates will need to consider how the State can address the need for population-specific training without replicating the fractured silos of the existing system. 19 Key Questions for Implementing CFC