UPDATE: On Thursday, April 10, the judge in this case approved the preliminary injunction.
On Wednesday night, parties to a federal lawsuit against New York State's Department of Health filed a proposed preliminary injunction that will not put the state's home care transition on hold, but will create new protections for consumers and their personal assistants.
The Consumer Directed Personal Assistance Program, or CDPAP, allows people with disabilities to hire, train and self-direct personal assistants who are paid using Medicaid dollars through a fiscal intermediary, or FI.
The lawsuit challenges the state's transition from over 600 companies and non-profits administering the program, to only one. Public Partnerships LLC, or PPL, was chosen by the state as the new single FI, and began transitioning consumers in January.
The transition was supposed to be complete by April 1st, but consumers report facing many challenges and roadblocks. Of the roughly 250,000 disabled people originally enrolled in the program, the DOH reports that 40,000 still haven't transitioned. Additionally, about 60,000 consumers have left CDPAP for other personal care services. Those numbers do not include the multiple personal assistants that may be employed by each consumer.
If the preliminary injunction is approved by the judge, some consumers and their personal assistants will be able to stick with their original fiscal intermediary – but not indefinitely.
According to the proposed preliminary agreement, all consumers would need to be onboarded with PPL by May 15th, and then personal assistants would need to be brought into PPL system as employees no later than June 6th, unless an extension is provided by the court.
“Plaintiffs’ counsel believes that this joint proposal will make a huge difference to CDPAP participants. This proposal, which is currently in front of Judge Block for his consideration, would allow many Personal Assistants who haven’t been able to register with PPL to be employed by their prior Fiscal Intermediary during this transition,” said Elizabeth Jois in a statement. Jois is an attorney for the plaintiffs and part of New York Legal Assistance Group (NYLAG)’s Special Litigation Unit.
Consumers would also now be broken into three groups, or categories. Category A would be people who have already transitioned both their care and any of their personal assistants' employment fully to PPL. The DOH would be responsible for making sure PPL pays these personal assistants fully, either back to April 1st, or the date the personal assistant was last paid by their previous FI.
Category B would include consumers who have fully transitioned their care to PPL, but some or all of their personal assistants have not become fully employed at PPL yet. Consumers would decide if they want those personal assistants to be paid by their previous FI until they are fully transferred to PPL. This would be as long as those FIs are still operating, in good legal standing and agree to not “make misrepresentations” about the transition to any consumer or their personal assistants.
The final group, Category C, would be consumers who have not yet fully transitioned themselves to PPL. Consumers in this group could choose to have their previous FI pay their personal assistants until they are fully transitioned.
"This proposed agreement supports the State’s ongoing CDPAP transition and ensures our reforms will proceed in full," said Sam Spokony, a spokesperson for the Governor in an emailed statement. "The proposed agreement will have no impact on hundreds of thousands of consumers and workers who have already completed registration with PPL. It provides a limited window for additional consumers and workers to complete their registration with PPL."
The proposed preliminary agreement would also create an expedited onboarding program through PPL that would assist with transition if the consumer does not elect their previous FI or the previous FI is unavailable or unable to continue payments. The proposed preliminary injunction also lists substantial efforts the DOH and PPL must make to assist and robustly reach out to consumers and personal assistants who are still transitioning over.
A decision in the matter is expected before April 14th, when the current temporary restraining order is set to expire.
