By Hank Russell
The New York Legal Assistance Group (NYLAG) and Patterson Belknap Webb & Tyler LLP recently filed a pre motion letter proposing additional court intervention to protect continuity of care on behalf of older and disabled New Yorkers who they say are at risk of losing access to critical in-home care services through the Consumer-Directed Personal Assistance Program (CDPAP).
According to NYLAG and the law firm, the state rushed through the transition process involving CDPAP from 600 fiscal intermediaries to one, Public Partnerships LLC (PPL). In late March, they filed a class action lawsuit, Engesser et al v. McDonal, on behalf of CDPAP consumers. Last month, NYLAG and Patterson Belknap negotiated and secured a Preliminary Injunction agreement with the New York State Department of Health to extend the transition deadline.
In the May 15 filing, plaintiffs asked the court to make changes to the Preliminary Injunction ordered on April 12, and to extend the Preliminary Injunction so that it lasts until August 15. Judge Frederic Block of the U.S. District Court for the Eastern District of New York held a conference on May 20.
“Our team is hearing daily from CDPAP consumers across the state who are still unable to register with PPL, whose personal assistants are still unable to register with PPL, and whose personal assistants are not able to clock time or be paid correctly,” said Elizabeth Jois, supervising attorney in NYLAG’s Special Litigation Unit and one of the attorneys litigating the case.
“What is crystal clear to everyone in the CDPAP community is that the transition to PPL has been chaotic, and has resulted in far too many CDPAP consumers losing services,” Jois continued. “These failures continue to jeopardize the safety of disabled New Yorkers who rely on the CDPAP program, while forcing home care workers into prolonged financial insecurity. The bottom line is that CDPAP participants need more time, as well as drastic, immediate improvements in the level of support being provided to ensure consumers’ care is not further disrupted.”
The proposal, if ordered by the court, would improve continuity of care by requiring the Department of Health to identify every CDPAP consumer who has gone without some or all care for the last two weeks, and assign them to a facilitator for one-on-one assistance. This relief includes both consumers whose personal assistants have quit and those whose personal assistants continue to work but have not been paid at all or in full – regardless of whether the consumer and personal assistants are registered with PPL.
“The facilitators already exist; you can see a list of them here. However, we have heard from many consumers that the facilitators are not able to solve their problems because they do not have enough access to PPL’s systems,” said Jois.
The proposed changes to the Preliminary Injunction direct that the facilitators be given the tools they need to assist CDPAP consumers and personal assistants in getting registered, being fully onboarded, clocking time and getting paid.
The proposal also asks that the end date of the Preliminary Injunction be extended from June 6 to August 15. Plaintiffs additionally proposed changes to the PI to provide increased transparency and accountability around publicly available reporting.
This is not the first time that there were calls to extend the deadline. Long Island Life & Politics previously reported that Assemblyman Keith Brown (R,C-Northport) called for the delay in the implementation of changes to CDPAP back to July 1. This transition to PPL has created turmoil for the more than 250,000 consumers in New York state who have long-term medical needs and more than 200,000 home care aides employed by CDPAP, according to the assemblyman.
In response, LILP previously reported, the company said that, since the rollout, the company issued payments to approximately 165,000 CDPAP personal assistants and more than $395 million in payments have been issued to date. According to PPL, paychecks were issued to over 99% of fully registered PAs who submitted their time sheets within a timely manner.
As part of its continued advocacy on behalf of CDPAP participants, NYLAG provided the following additional updates and resources for consumers and PAs:
- The blanket exception for Personal Assistants employed by PPL to use paper timesheets if they cannot log their time in Time4Care, PPL@Home, or by using the PPL Telephony system ended on May 17. This means that Personal Assistants must use Time4Care, PPL@Home, or Telephony to record the time they work. The only Personal Assistants who can continue to use paper timesheets are those who have requested an individual exception and have had that exception granted by PPL.
- The Department of Health has created a CDPAP Transition Hotline which will be staffed Mondays through Fridays from 9 a.m. to 5 p.m. CDPAP participants can also email the Department of Health CDPAP Transition Team for assistance at StatewideFI@health.ny.gov.
- CDPAP participants still experiencing issues are encouraged to contact the NYLAG litigation team at cdpaplawsuit@nylag.org or 212-946-0359. NYLAG said it will be watching closely to ensure the Department of Health and PPL comply with court orders and encourage affected individuals to report problems.
“The team continues to advocate on behalf of CDPAP participants for additional accountability, oversight, issue resolution and systems improvement by providing the Department of Health with a list of technical and logistical concerns regarding PPL’s operations that we have heard from the community,” NYLAG said in a statement.
LILP reached out to the Health Department. In response, the agency issued a press release on May 19 which addressed some of the issues NYLAG brought up. According to the Health Department, 209,000 consumers registered with PPL ahead of the June 6 deadline. In addition, more than 203,000 personal assistants have registered with PPL to continue delivering care under the updated structure.
Before April 1, approximately 280,000 consumers were authorized for CDPAP, the Health Department claimed. To date, 209,000 consumers who remain authorized for CDPAP have registered with PPL. An additional 75,000 have instead opted to transition to Personal Care Services (PCS), another Medicaid-funded long-term care program that also supports care in the home. The choice to enroll in CDPAP or PCS remains entirely up to the consumer. Some individuals may choose to register with PPL and later switch to PCS, or vice versa.
Also, as of May 15, 198,000 personal assistants – about 98 percent of those fully onboarded – had successfully submitted timesheets and been issued a paycheck from PPL, according to the Health Department. Almost all of those who have not received payment have not submitted a timesheet. In CDPAP, schedules are determined by the consumer in consultation with their PA, and not all caregivers work weekly.
“Since the start of the transition in January, we have successfully ensured that hundreds of thousands of New Yorkers who rely on home care continue to receive these essential services,” Health Commissioner Dr. James McDonald said. “Through our partnership with PPL, we are building a more accountable and sustainable CDPAP system — one that protects consumers while putting an end to the unchecked cost growth and misuse that plagued the former structure.”