February 16, 2024

Last night we sent you information regarding the Executive Budget 30 day amendments.  Below is a brief summary of changes to the original proposal released in mid-January.    

Also, below the summary you will find an article published today in Crain’s New York describing the 30 day amendment proposal related to the  state’s Consumer Directed Personal Assistance Program (CDPAP).   The Governor’s 30-day amendments include major changes to the  Program.

February 16, 2024

On February 15th, the 30-day budget amendments to the SFY 2025 Executive Budget were released by the State Division of Budget and can be found here.   While largely technical, in some instances programmatic changes have been made to proposals included in the Governor’s budget released Jan. 16th.  Certain Article VII bills also include new proposals in the Health/Mental Hygiene, Public Protection and Transportation bills.

Provided below and attached is an outline of the substantive 30-Day budget amendments in the Health/Mental Hygiene sector.  

Upon review, please let us know if you have any questions.  

Programming Changes in HMH Sector 30-Day Executive Budget Amendments for SFY 2025

MULTIPLE SECTORS

·      Health Care Facility Transformation Program (NYSDOH section of Capital Projects Appropriation Bill)-  Authorizes up to $300 million in existing DOH capital re-appropriations to be used for a SUNY Downstate Transformation Plan and up to $20 million to be made available for the Empire State ALS Alliance.

·      Health Care Safety Net Transformation (Part S of HMH Art. VII)- Clarifies that a hospital organization must apply in conjunction with at least one partner organization in order to qualify for grants funding under this program.

·      1115 Waiver (New Part GG of HMH Art. VII) – Includes a new Part GG in the Health/Mental Hygiene Article VII budget bill to provide additional contracting flexibilities in relation to the 1115 Medicaid waiver, in order to carry out provisions of the waiver.

·      Prescription Drug Monitoring Program (Part U of HMH Art. VII)- Amends Executive Budget proposal to make the following changes to:

o   Clarify data sharing language to allow sharing with other State
agencies, in accordance with applicable laws, rules, and regulations.

o   Create a veterinary exemption for Xylazine and establish safe storage,
record keeping requirements, and make other technical changes.

·      NYSDOH Aid to Localities Appropriation Bill- Includes updated funding as follows:

o   Adds $3 million for Children with Special Health Care Needs program

o   Adds greater detail to the $5,000,000 appropriated for the research of ALS and related rare diseases to read: “For services and expenses related to rare disease research, treatment, education, programming, and related activities. Of amounts appropriated herein, notwithstanding section one hundred sixty-three of the state finance law, a portion of this appropriation may be awarded to Empire State ALS Alliance to support Amyotrophic Lateral Sclerosis (ALS) research and treatment.”

HOME CARE

·      Home Care Aides (Part G of HMH Art. VII)- Amendments clarify that the definition of “home care aide” is being amended only as it relates to wage parity provisions.

·      Includes a new Part HH of the Health/Mental Hygiene Article VII budget bill which:

o   Repeals the Fiscal Intermediaries (FI) RFP and replaces with an FI authorization process issued by Commissioner of DOH;

o   States that FI’s must contract with a local department of social services, Article 44(MCO), or an accountable care organization or an integrated delivery system composed primarily of health care providers recognized by the DOH under reform incentive payment system;

o   Requires ownership of LHCSAs, MLTCS and FIs must be independent of each other and expressly prohibits a controlling interest or majority ownership or more of any one of these entities;

o   Allows for Commissioner to revoke, suspend, limit or annul ownership of a FI within 30 days for violation of any provisions;

o   States that the Commissioner of Health may issue orders or other actions to prohibit FI’s ownership by an unauthorized entity;

o   Requires and reinforces language making clear requirement for consumer direction under the program;

o   Authorizes regulations, including emergency regulations to establish the maximum daily and weekly hours an aide can provide services under the FI program; and

o   Eliminates a designated representative as a personal assistant.

EMS

·      Amends the Executive Budget proposal (Part V of HMH Art. VII) related to Emergency Medical Services to clarify that the Department of Health must approve the county medical emergency response plans, NOT the format of the plans. The amendments further:

o   Clarify that the DOH Commissioner will allow general hospitals to provide off-site acute medical care services, subject to the availability of Federal financial participation;

o   Adds nurse practitioners to the list of medical professionals that can provide off-site acute care to a patient. Provided that the patient has  a pre-existing relationship with the hospital or medical professional. This includes providing care for patients who were admitted through emergency departments and resided in inpatient hospital beds;

o   Clarifies that the ambulance services used by counties must be licensed by the Department of Health;

o   Makes technical changes to allow counties time to adjust their medical emergency response plans in the event of a service no longer being available;

o   Clarifies that changes made to the Provision of the Emergency Medical Dispatch section would apply only to dispatchers/dispatch agencies whose primary role is as emergency medical dispatch. All licensure, protocols, and minimum standards will be established with the advice and consent of the State.

Maternal Health

·      Amends the Executive Budget proposal (Part N of HMH Art. VII) related to maternal and reproductive health to make changes to require that pregnant and postpartum individuals give informed consent prior to testing for alcohol, cannabis, or other drugs.

Mental Health, Substance Use Disorder Services and Human Services

·      Opioid Stewardship Fund Extender- amends the Executive Budget proposal which makes this fund permanent by including it in Part B of the Article VII HMH budget bill (removing it from Part X where it was duplicative)

·      Cost of Living Adjustment (Part FF of HMH Article VII & Aid to Localities (ATL) OASAS Appropriation Bill)- includes the following amendments:

o   Amends Part FF which includes the cost-of-living adjustment (COLA) for designated human services programs to make a technical amendment to conform the exclusion of care coordination organizations from the list of eligible programs and services.

o   Updates the language in the ATL OASAS Appropriations bill to reflect the annualization of 2024 COLA and minimum wage funding.

·      Additional Funding in OASAS ATL Budget- Amendments added the following funds to the OASAS budget:

• Added over $24 million to the General Fund for:
  • Approximately $20 million to the Community Treatment Services Program (CTSP)
  • $230,000 to local government expenses and services related to administering addiction services
  • Approximately $4 million added to prevention and program support  

Insurance

·      Competitive Procurement in Medicaid Managed Care (Part H of HMH Art. VII)- Proposed in Executive Budget is amended to:

o   Includes language related to the competitive bid process to “notwithstand” sections of state finance law related to contracting

o   Adds language stating that within 60 days of NYSDOH issuing the RFP, a managed care provider that was approved to participate prior shall submit its intention to complete the RFP to NYSDOH.

o   Includes additional language regarding the termination processes for providers that are not included for transitioning enrollees.

·      Strengthening NYSDOH Enforcement on Managed Care Plans (Part H of HMH Art. VII)- Executive Budget proposal amended to:

o   Clarify proposal for when managed care organizations may dispute the imposition of liquidated damages and clarification on format and rights for plans submitting disputes

o   Clarify language on actions taken when managed care organizations fail to act under the model contract such that each instance where a plan fails to furnish necessary/required services or items to an enrollee shall be a separate violation.

·      Essential Plan (Part J of HMH Art. VII)- Executive Budget proposal relating to Essential Plan is amended to incorporate references to the 1332 waiver into the marketplace statute.

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Gov. Kathy Hochul proposed new restrictions on a home care program that allows older New Yorkers and people with disabilities to choose their own caregivers, part of her attempt to control a ballooning Medicaid budget tied to the state’s long-term care spending.

The state proposed new rules Thursday that target the Consumer-Directed Personal Assistance Program, an estimated $6 billion Medicaid program that allows older New Yorkers and those with chronic illnesses or disabilities to select their own caregivers. The program enables family members, neighbors or friends to get paid by the state to care for their loved ones, and reimburses them through entities known as fiscal intermediaries — nonprofits or businesses that contract with the state to manage payroll.The proposed rules, which were published in the governor’s 30-day budget amendments and are expected to save the state $100 million, could limit how many hours personal assistants can work, as well as restrict the number of fiscal intermediaries that the state works with.

Hochul’s proposals could also limit the program to individuals who are capable of hiring and managing CDPA workers on their own. The amendments bar people enrolled in CDPAP from using a third party, such as a spouse or parent, to manage their care — a change that would limit children, people with severe intellectual disabilities or those with Alzheimer’s or other memory-related conditions from participating in the program, advocates say.

Blake Washington, budget director of New York state, said that the proposals are an attempt to restore CDPAP to its original intent — allowing people with complex medical needs to remain in their communities and self-direct their care.

Washington said that spending on CDPAP has grown 1,200% in the last decade, due to changes that allow additional family members to get paid to provide care and growing participation in the program. He added that this growth is hard for the state to track — there are roughly 600 to 700 fiscal intermediaries that participate in CDPAP, reducing transparency around how much they get paid and how many workers participate in the program.

Currently, more than 250,000 New Yorkers are enrolled in CDPAP, according to health officials.

“Over time, the program has blossomed into an unsustainable and opaque program,” Washington told Crain’s. “The care that’s being provided through CDPAP is not something that is in many ways knowable by the state.”

While the state has maintained that the proposed changes would restore the original purposes of consumer-directed care, advocates say that they will undoubtedly reduce access to care. Bryan O’Malley, executive director of the Consumer Directed Personal Assistance Association of New York State, said that he is concerned that the proposals will exacerbate the shortage of home care workers in New York state.

For example, O’Malley said that eliminating designated representatives, or the third parties that managed personal care for people with memory conditions or disabilities, would bar those communities from participation in CDPAP. This shift is especially concerning as the home care worker shortage has made it increasingly difficult for people to find care through other home care programs.

“The designated representative doesn’t get paid, so that in and of itself does not save money,” O’Malley said. “The way you save money by eliminating designated representatives is by denying people services the state has already said they need.”

The proposed CDPAP regulations build on the governor’s broader strategy to control home care spending. Hochul’s recent executive budget proposed a $200 million cut that would discontinue wage parity for consumer-directed personal assistants — a 2017 change that brought their pay in line with licensed home care workers.

Hochul’s proposed budget included another $200 million cut to home care programs — but the governor did not specify what exactly would be cut. The regulations on CDPAP workers would partly fulfill that promise to mitigate Medicaid spending on home care.

While Hochul has proposed to cut wages and further restrict the consumer-directed program, advocates say she could be saving Medicaid dollars in other areas. Lawmakers and home care workers have backed a proposal that would cut home care services out of Medicaid managed long-term care — a move they say could save the state $3 billion annually. Labor giant 1199 SEIU, which represents 50,000 home care workers across New York state, also supports the proposal.

“Rather than reign in the private insurance companies that are bilking over $1 billion per year from the State, the Governor wants to blame low-income older and disabled New Yorkers — and their families — for using the services they so desperately need to live the independent life they deserve,” O’Malley said.