More on settlement re: Children’s HCBS Services

August 22, 2025

Last week we provided NYS Council members two documents re: a recent settlement agreement reached between NYS and children’s (legal) advocates acting on behalf of a class of children and youth who were and may still be) unable to access HCBS services here in New York.

New Resources:1) Attached, please find an article from 360 Law re: the Settlement, as well as two documents we first shared with all members last week.

2) Below, see the pasted notes from a recent meeting advocates had with Daniele Gerard, one of the senior attorneys from Children’s Rights (one of the litigants on behalf of the class of impacted children and youth) who discussed the terms of the settlement in some detail. Daniele also outlined next steps for the state as required by the Agreement.

Notes on HCBS Class Action Settlement (as of 8/16)

These notes are subject to further refinement

Settlement provides for redesign of intensive home and community-based services (See Appendix A for detailed description):
1. Intensive Home and Community-Based services
  1. Intensive Care Coordination
  2. Intensive Home-Based Behavioral Health Services
    1. Includes educating family on child’s needs; comprehensive mh assessments; BH supports; therapeutic services in home and community; CFTSS, HCBS, Youth Act
  3. Mobile Crisis Services
Timeline (See Appendix B for timeline for 18 month Implementation Plan):
1. Judge signs off on court order settlement agreement, notice is provided to potential class members – roughly 5 weeks to give class members time to object (children on medicaid who had diagnosis of mental health condition by licensed practitioner of the arts)
2. Within 18 months from that date, there should be an implementation plan
3. Once implementation plan is completed:
  1. More public aspect of settlement agreement rolls out
  2. Components of implementation plan to be completed within 6 years
Implementation Plan
1. Independent Reviewer
  1. works with the Parties to develop the Standards and Requirements, Eligibility Criteria, Reimbursement Rates, the initial and updated QIPs (including Performance Indicators, Interim Utilization Targets, and Quality Improvement Procedures) and other elements of the Implementation Plan.
2. Agreement lays out standards and requirements for each of the services (some described below)
  1. proposed service descriptions, provider requirements, intensity (including frequency and duration) with which services are provided, staff qualifications, supervisory qualifications, settings, limitations, rates, and required training, and the training and technical assistance workplan.
  2. At any given time, as medically necessary, children and youth with complex mental and behavioral health needs may need more intensive care coordination services than any minimum specified by DOH, OMH, or their contractors. ICC providers shall be expected to provide such services at the intensity (including frequency and duration) needed by the child or youth they serve
  3. The requirements for in-person ICC cannot be waived or eliminated, and will not be satisfied by virtual, telehealth communications, except in accordance with the existing DOH Medicaid and OMH Telehealth Guidance permitting waiver of in-person requirements due to the “presence of a new or worsening declared public health emergency or other significant occurrence, such as a natural disaster, which impacts all or a specific segment of the population’s ability to receive services in person, including the Telehealth Practitioner’s ability to mitigate the specific health risks, such as through the use of personal protective equipment or other environmental accommodations at the site of care” or similar exceptional circumstances.
  4. With regard to CFTSS, Defendants shall redesign the program model for CFTSS to create capacity for an intensive service and level of support specifically tailored to meet the needs of Class Members.
  5. The Standards and Requirements for Mobile Crisis Services shall provide (a) that Mobile Crisis Services will be available statewide on a 24/7 basis for Class Members, and (b) for a data gathering system to continually assess the utilization rates of Mobile Crisis Services for Medicaid-enrolled children.
  6. Defendants shall redesign the program model for the HCBS Waiver program to create an intensive model of support specifically to address the needs of children with significant mental health conditions, and shall outline training and staffing requirements for high intensity specialty services for Class Members.
3. Requires enhancement of reimbursement rates
  1. For each Relevant Service, the Implementation Plan shall include (a) proposed reimbursement rates at which providers will be paid for delivering the service; (b) the proposed rate build, or other mathematical or actuarial model used for determining the reimbursement rate; and (c) all assumptions used in calculating the proposed reimbursement rates, and the basis for such assumptions.
  2. The reimbursement rates reflected in the Implementation Plan, and the actual rates, which will be provided in any future iteration of the Implementation Plan, shall be set at amounts to ensure that payments to providers are consistent with efficiency, economy, and quality care and are sufficient to enlist enough providers to meet the needs of eligible children on a timely basis in all regions and areas of New York State, at least to the extent that they are available to the general population in the geographic area.
4. Requires public access to data
  1. The Implementation Plan shall address access to the data, and describe in detail how data regarding the Relevant Services shall be made available to relevant persons, including the individual child service provider agency, managed care plan, and statewide and local entities.
  2. The Implementation Plan shall require Defendants to develop, maintain, and update a publicly available data dashboard(s) containing data points related to the provision of the Relevant Services to children in New York, and will include a timeline for developing such data dashboard(s).
5. Requires community stakeholder involvement in development of implementation plan (see sections 33, 44, 45, 52, 55, 56 and 57)
  1. 51. The Implementation Plan shall promote improved collaboration and coordination by child-serving agencies, state agencies, counties, and providers that deliver care to Medicaid-eligible children with mental or behavioral health conditions to ensure that the requirements of this Settlement Agreement are met.
  2. 52. Defendants will also convene an Implementation Advisory Committee comprised of relevant child-serving system and service stakeholders, such as local government personnel, family and youth representatives, and provider agencies, to make recommendations on the development of the Implementation Plan.
6. Network adequacy requirements
  1. 53. The Implementation Plan shall specify revisions to the network adequacy requirements currently in place, so as to ensure that Medicaid managed care plans take into account the results of needs assessments and other relevant information (such as utilization and expenditures) to identify potential gaps in the provision of the Relevant Services or difficulties in accessing the Relevant Services.
  2. 54. The Implementation Plan shall include network adequacy requirements for providers of all the Relevant Services to ensure sufficient numbers of qualified and appropriately trained providers are available to provide all the Relevant Services to meet the needs of eligible children on a timely basis.
  3. 55. The Implementation Plan shall specify that network adequacy requirements for the Relevant Services for Medicaid managed care plans will not rely on a specific number or fixed percentage of providers operating in the county or other catchment area. The Medicaid managed care plans shall have an adequate network of providers who provide the specific Relevant Services, and shall identify such providers in their network directories and keep such directories current.
7. Educating Families and Other Stakeholders
  1. 56. The Implementation Plan shall include a description of how Defendants will inform eligible children and their families/caregivers, and educate and involve the provider community and relevant state and local public child-serving agencies, regarding availability and delivery of the Relevant Services.
  2. 57. The Implementation Plan shall include plans to address particular service deficiencies that affect underserved communities, such as populations having specialized needs, which include, but are not limited to, BIPOC and LGBTQIA+ populations, and youth involved in the child welfare and juvenile legal systems.
8. Requires Quality Improvement Plan
  1. Performance indicators – Pages 14-18
Audit:
1. Yearly audit to determine whether whether children are getting timely services with adequate intensity (frequency and duration)
Other notes:
1. Does not define benchmarks, TBD
2. “Defendants shall ensure sufficient numbers of providers are available to provide the Relevant Services to meet the needs of eligible children on a timely basis in all regions and areas of New York State.“
3. “The Eligibility Criteria for ICC and IHBBHS shall provide that a child will be eligible for such services when a Licensed Practitioner of the Healing Arts, acting within the scope of their license, recommends the service is necessary to correct or ameliorate a mental or behavioral health condition. The Eligibility Criteria shall also provide that:
  1. a. Upon such a recommendation, prior authorization by a managed care plan shall not be required for an initial delivery of services, not to exceed sixty (60) days.
  2. b. Defendants shall educate the provider community, local governmental units, and families about this path to eligibility for the Relevant Services and encourage practitioners to recommend the services when medically necessary for children with complex behavioral health conditions.
  3. c. Defendants also shall ensure that sufficient points of access are available to accept direct referrals from family members/caregivers, providers, managed care plans, and community or other stakeholders for the Relevant Services.
4. 48. The Implementation Plan shall include the targeted strategies Defendants will undertake to avoid unnecessary admissions of Class Members to psychiatric hospitals, emergency departments, psychiatric residential treatment facilities, or other congregate settings for children with mental health conditions and children experiencing mental or behavioral health crises.
5. 49. The Implementation Plan shall include the targeted strategies Defendants will undertake for ensuring that Class Members discharged from residential or institutional settings, emergency departments, or other out-of-home placements, timely receive the Relevant Services that they are eligible for, to prevent unnecessary readmissions to these institutions or residential settings.