The Elder Law Minute: Medicaid’s Consumer Directed Home Care Program

March 19, 2014 Ronald A. Fattoullah, ESQ. and Debby Rosenfeld, ESQ.
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New York State’s Consumer Directed Personal Assistance Program (CDPAP) is a Medicaid program wherein the patient is responsible for hiring and supervising the personal assistant (PA) or home care worker.

CDPAPis a statewide Medicaid program that allows the consumer to have more control over who provides his or her care and how it is provided. Usually, a home care vendor or agency dictates the selection and training of a home attendant. CDPAP allows the consumer or the person handling his or her care to hire, train, and schedule the aide and Medicaid pays the salary.

All counties, and now all mainstream Managed Care and Managed Long Term Care plans, are required to have a CDPAP program and to notify eligible people of the option to join.The consumer can hire almost anyone, including some extended family members. The aide does not have to be certified.

The program is attractive to many consumers because the aides may perform skilled care such as administering oxygen or medications, suctioning tracheostomies, and giving injections of insulin that have typically been performed only by a nurse.

The patient must be self-directing or have someone able to direct his or her care. In other words, the individual or family member must be able to direct the aide regarding the help that the consumer requires. The person directing care does not need to live with the consumer but must have substantial daily contact. In addition, the patient’s condition must be stable and must not require a skilled professional to determine changes to the plan of care.

In Calenzo v. ShahThe regulations that apply to CDPAP dictate that the program will not pay a patient’s spouse or parent to serve as an aide. Since April 2011, the regulations have become less restrictive, allowing a son, son-in-law, daughter or daughter-in-law to provide care, when these relatives had previously been precluded from doing so.

Care may be provided by another relative as long as the relative is not living in the patient’s home or is residing in the patient’s home due to the amount of care the patient requires.

Suffolk County DSS asserted that the term “parent” was interpreted to include stepparents and that therefore Calenzo’s husband, Robert Walker, could not serve as the PA.

However, the Court pointed out that Mr. Walker is neither the petitioner’s biological father nor his adoptive father and is therefore not his parent within the meaning of the regulation. As such, the Court granted the petition and annulled the determination, thereby allowing the stepfather to continue providing care.

CDPAP is a useful program for many people who meet the requirements and who may need care that is not provided within the managed care system. It is a good idea to explore the available home care options with a qualified elder care attorney.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that exclusively concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, N.Y. This article was co-written by Stacey Meshnick, Esq., senior staff attorney at the firm who has chaired the firm’s Medicaid department for over 15 years. Ronald Fatoullah & Associates can be reached by calling 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.

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