The Community First Choice Option (CFC), which was made available as part of the Affordable Care Act, reforms the state’s Medicaid LTSS system to provide comprehensive community-based services that support choice, independence, and community integration in accordance with the Olmstead Decision. On March 18, 2011, as result of advocacy led by NYS ADAPT, NYAIL, and CDR, the Cuomo administration pledged to select the CFC Option in New York. In 2012, New York established the Development and Implementation Council, as required by federal statute, to advise the development of the proposed CFC program model.
New York submitted their State Plan Amendment to the Center for Medicare & Medicaid Services (CMS) in December 2013. This Plan details how the State intends to implement CFC and requires federal approval. After reviewing New York’s SPA, CMS replied with a substantial list of questions for which CMS requires clarification before the State’s Plan can be approved.
During the 2014 Legislative and Budget Sessions, NYAIL, CDR, and other advocacy organizations advocated strongly for a Nurse Practice Act amendment that would allow for full implementation of CFC. This amendment would allow nurses to assign health related tasks to a trained aide. Without this amendment only nurses will be allowed to perform these tasks. Due to Federal CFC guidelines, high costs of nursing care, and the limited size of the nurse workforce, this change is necessary for robust CFC implementation.
In June, Governor Cuomo issued Program Bill #37 that would exempt a new title of worker, the “advanced home health aide”, from the Nurse Practice Act and allow them to perform advanced CFC tasks with appropriate training and supervision. In the same month, Assemblywomen Glick introduced bill A10137 which would authorize “advanced home health aides” to perform health-related tasks under CFC. The bill also established a workgroup with stakeholder and consumer representation to provide guidance on the advanced tasks which may be performed by advanced home health aides. Unfortunately, neither of these bills moved during the 2014 session.
New York State Department of Health and the Governor’s office continue to voice support for CFC. In July 2014, an Advanced Home Health Aides Workgroup for the purpose of providing guidance to the Department of Health on the advanced tasks that could be performed by “advanced home health aides” in home care settings. This group will meet monthly and includes stakeholders from various fields, including: advocates, consumers, home care representatives, nurses, hospice providers, and academics. NYAIL and CDR both act as advocate representatives on this workgroup.
In early 2015, the Advanced Home Health Aide (AHHA) workgroup finalized a report providing guidance to the Department Of Health on the training, certification, supervision and tasks that could be performed by Advanced Home Health Aides. Governor Cuomo included in his proposed 2015 – 2016 budget an amendment to the Nurse Practice Act to allow for the creation of AHHAs. Despite vigorous advocacy on the part of NYAIL, CDR and a broad cross section of stakeholders, it did not make it into the final budget. The Assembly did pass legislation in the 2015 legislative session, however it did not make it through the Senate and the 2015 legislative session ended without the much needed amendment to the Nurse Practice Act. NYAIL and CDR continue to work with a broad range of organizations - representing consumers, advocates, home care providers, nurses and aides – to organize strong support for advancement of this legislation in the 2016 legislative session.
The AHHA workgroup produced a final report with guidance for the implementation of an Advanced Home Health Aide program in NYS, available for download here:
On October 23, 2015, the State Plan Amendment was approved at long last, retroactive to July 1, 2015. This means NYS will finally begin implementing CFC. It also means that the State is eligible for an additional 6% FMAP on CFC services, which will result in a significant amount of savings to the State. You can download a copy of the State’s approved SPA here: [State Plan Amendment SPA 13-35]
It should be noted that CMS approved the SPA without the amendment to the Nurse Practice Act to allow for AHHAs because they consider this issue a state matter. However, the State still needs to amend the Nurse Practice Act to allow for AHHAs for full and robust CFC implementation. This change is necessary for CFC implementation due to Federal CFC guidelines, high costs of nursing care, and the limited size of the nurse workforce.
As it stands now, home health aides can perform health related tasks to consumers only under the Consumer Directed Program, which is exempt from the Nurse Practice Act. This is the only form of home care currently eligible for the enhanced FMAP, which means New York is missing out on a significant amount of the potential federal match without implementing AHHA.
Individuals at the institutional level of care may not be able or willing to self-direct their home care services. Individuals who are not self-directing and who require assistance with health related tasks will need to access their home care services through a traditional agency which utilizes Private Duty Nurses to provide assistance with health related tasks. However, private duty nursing is extremely difficult to obtain due to the high cost of care and the lack of availability of nurses throughout the State. As such, it is critical for the State to pass the amendment to the Nurse Practice Act to allow for AHHAs who could perform health related tasks for these individuals under the supervision of a trained nurse. NYAIL, CDR and our allies will continue to advocate for AHHAs to ensure New York’s CFC implementation is robust and benefits all people with disabilities who rely on long-term services and supports.
DOH presented an overview of the CFC program at the waiver transition workgroup meeting on November 6, 2015. Presentation slides outlining CFC can be viewed here: