Victory! Court Rules CDPAP Cuts Unconstitutional

CDPAP—a Medicaid-funded program—allows people with chronic illnesses and physical disabilities to hire, train and supervise their own caregivers. Medicaid then pays these hired caregivers for their services through a fiscal intermediary (FI), an organization responsible for handling administrative costs of the program such as management of employee benefits, payroll and tax processing.

The program was created with the input of people with disabilities who could not receive services they need to live independently from home care agency aides, who are prohibited from providing certain types of care, such as managing a person’s ventilator.

New York State Gov. Andrew Cuomo’s budget, which took effect September 1, cut $75 million from the program. To make those cuts, the State changed the way it pays FIs from a longstanding structure based on hours worked to a per-member-per month structure. This had the effect of reducing what the State pays FIs from a maximum of 18 percent to just 2 to 4 percent of the FIs’ administrative costs. The Consumer-Directed Personal Assistance Association of New York State (CDPAANYS)—which represents FIs—and Centers for Independent Living across New York State filed a lawsuit alleging that the new reimbursement structure would bankrupt the FIs, which are critical to the continued existence of the CDPAP program.

Decision favors CDPAP

The court decision comes on the heels of a protest in August, where more than 25 people with disabilities gathered at Gov. Cuomo’s office in Manhattan, calling on him to reverse the cuts to CDPAP.

In the October 11 ruling, Judge Ryba said that the Department of Health violated the New York State Constitution as well as the New York State Administrative Procedure Act (SAPA) when it instituted a new Medicaid reimbursement structure for CDPAP. SAPA requires such regulatory changes to go through a formal public commentary process before implementation.    

The Department of Health argued that its new reimbursement structure was exempt from SAPA because the department was merely interpreting the existing rules and regulations when it changed the structure, and was not creating a new rule. Judge Ryba disagreed, and declared the new reimbursement structure null and void, directing the department to reinstitute the previous structure.

“While the plain language of the regulation permits the Department of Health to establish reimbursement rates, an agency cannot grant itself the sweeping discretion to circumvent or supersede the requirements of SAPA by merely including such broad language in its own regulations,” the decision read.

Response to CDPAP ruling

Consumers, disability rights advocates and nonprofit organizations lauded the decision, saying that CDPAP ensures for independence and freedom of choice for people with disabilities who select, supervise, and train their own caregivers.

CDPAANYS Executive Director Bryan O’Malley described the court’s decision as an important step in preserving quality of life services for people with disabilities who rely on CDPAP.

“CDPAANYS and our partners stand ready to work with the Department of Health to come up with real solutions that will save money without ruining the lives of 70,000 New Yorkers who rely on the program for their dignity and independence, and the over 100,000 people it employs,” Bryan said.

ICS member Anthony Trocchia commended Judge Ryba on the decision, and said that the new reimbursement structure would have been catastrophic for FIs.

“This sends a clear message to Gov. Cuomo and the DOH that we belong in our homes and that hospitals and nursing homes are absolutely never, ever the answer,” Anthony said. “People with disabilities do not deserve to be warehoused. I highly doubt Governor Cuomo would put his mom in a nursing home. The DOH must work with people with disabilities to create a reimbursement system that is fair and equitable.”

ICS member and Civics League for Disability Rights (CLDR) leader Sharifa Abu-Hamda said that she was thrilled with the ruling, and noted that she has had her personal caregiver for more than two decades.

“The ruling saved my CDPAP services,” Sharifa said, explaining that the decision will preserve the quality services she needs in order to live independently. “I don’t want to think about what life would be like without my personal care assistant. It’d be like taking away a part of me.”

ICS member Julia Yepez echoed those sentiments, and described the ruling as a major victory for people with disabilities.

“This is amazing, and makes me feel somewhat safe now,” Julia said. “If the DOH cuts hours, or cuts anything CDPAP does for people with disabilities, we would literally die. Taking part in the community, advocating, that’s what keeps us empowered. You cannot restrict people because of a budget.”