By: Daniel G. Fish, for the New York Law Journal
Many seniors have extracted a promise from their children that can be summed up in the phrase "never a nursing home." However, when faced with the presence of a stranger in their home to provide care, they realize that their wish has come at a very high psychological cost. The loss of independence can undermine the benefit of avoiding nursing home placement. These individuals should be aware of a Medicaid option called the Consumer Directed Personal Assistance Program (
1 that can permit them to exercise greater autonomy. It is available to individuals (called "consumers") who are disabled, medically stable, self-directing and eligible for Medicaid long-term care services. It allows the consumer freedom of choice in selecting her own
home care worker (called the "personal assistant").
In a typical home care case, Medicaid selects the agency that will provide the care, and the consumer has no input into the identity of the worker. The consumer directed program provides an alternative system by allowing the consumer to control the hiring and supervision of the worker. It is appropriate for those who want control over the selection of the aide and those who already have a home care worker whom they have been paying privately.
Nurse Practice Act
It also is appropriate for those who need services that an aide from an agency is prohibited from providing. Education Law §6901 et seq. (the Nurse Practice Act) defines the practice of nursing. Generally, only a registered nurse or a licensed practical nurse is allowed to perform a skilled service such as wound care, handing medication to a patient, giving an insulin injection, catheterization, or applying eye drops. A home health aide from an agency is limited to custodial care services such as helping a patient get out of bed, getting dressed, toileting and bathing. Family members, household members and friends are exempt from this restriction and are permitted to perform the skilled services.
Education Law §6908(1)(a)(iii) creates a specific exemption for those working under the consumer directed program. They enjoy the same exemption as a family member, household member or friend, and are permitted to perform skilled nursing tasks that otherwise may only be performed by a registered professional nurse or a licensed practical nurse. A personal assistant under the consumer directed program is permitted to provide care that a home care worker from a selected Medicaid agency would be prohibited from providing.
Medicaid can require an assessment by a registered nurse to verify that the consumer is capable of instructing the personal assistant properly in the provision of the skilled service. The consumer can be asked to demonstrate the skilled task and/or may be required to provide a written narrative of the steps in the skilled task.
This aspect of the consumer directed program has been shown to produce savings to the Medicaid program since the payment to the personal assistant is lower than the amount Medicaid would pay to a registered nurse or licensed practical nurse.
TransportationAt one point, Medicaid would not permit a personal assistant to drive a consumer to a non-medical appointment. That policy has been formally reversed. A Medicaid administrative regulation
2 has established that a personal assistant may accompany the consumer to non-medical activities outside of the home (such as shopping, work, school, social activities). The consumer and personal assistant must assume complete
responsibility for any liability related to the transportation, such as a motor vehicle accident. In addition, the consumer's physician must certify that the consumer's health is not at risk (i.e., driving would not take the personal assistant away from attention the consumer requires for medical safety). The personal assistant is still prohibited from driving the consumer to medically related activities. Such medically related transportation must be arranged through Medicaid.
The CDPAP benefit is available to consumers who are capable of self-directing their own aide. The consumer must be able and willing to make informed choices about his or her care, understand the implications of these choices, and assume responsibility for the outcome of those choices. Specifically, the consumer would be expected to recruit, hire, train, supervise and fire, if necessary, a personal assistant. Some elderly consumers may not be self-directing. This requirement can be delegated to a legal guardian of the consumer, a relative or another adult.
A physician's order recommending that the consumer be enrolled in the consumer directed program must be submitted to Medicaid. A social assessment and nursing assessment by Medicaid must follow. When Medicaid approves the participation of the consumer in the program, the consumer may interview, select and hire his or her own personal assistant. The class of individuals qualified to be a personal assistant is limited. Payment cannot be made to a consumer's spouse, parent or designated representative. Payment can be made to any other person, including those who are related to the consumer. However, such relative may not reside in the consumer's home. There is an exception to this rule if the number of hours of care is so high that the relative must reside in the home.
In addition, since the personal assistant will be paid on the books, he or she must be a U.S. citizen or legally authorized to work in this country. Medicaid does not give funds to the consumer to pay the personal assistant. A fiscal intermediary selected by Medicaid will handle the payroll functions for the personal assistant. The fiscal intermediary will be responsible for withholding taxes, Worker's Compensation, unemployment insurance, sick time and vacation time.
According to the Consumer Directed Personal Assistant Association of New York State, in 2008 there were 9,105 consumers in the CDPAP program statewide, and 2,310 in New York City. It is important to keep in mind that the consumer directed program makes independence available but also puts a great deal of responsibility on the consumer. He or she is responsible for finding a personal assistant, for training that person and for supervising their care. He or she is responsible for having a back-up available in the event the personal assistant is absent. These are tasks that otherwise would be performed by a home care agency selected by Medicaid. In specific cases, the program can be a valuable alternative to home care provided by an agency of Medicaid's choice.
Daniel G. Fish
is a principal in Daniel G. Fish LLC.