New York CDPAP Lawsuit Reaches Settlement Agreement

NEW YORK—Judge Frederic Block of the U.S. District Court for the Eastern District of New York signed a new amended preliminary injunction in Engesser et al v. McDonald, a class action lawsuit filed in late March by New York Legal Assistance Group (NYLAG) and Patterson Belknap Webb & Tyler LLP. The lawsuit was filed on behalf of older and disabled New Yorkers at risk of losing access to critical in-home care services through the Consumer Directed Personal Assistance Program (CDPAP) following the state’s transition from 600 fiscal intermediaries to one, Public Partnerships LLC (PPL). 

Engesser specifically argued that the New York State Department of Health (DOH) violated CDPAP consumers’ rights to receive written notice and the opportunity for a fair hearing before their services could be suspended.

The agreement follows weeks of negotiation between plaintiffs’ counsel and the DOH to reach a settlement benefiting CDPAP consumers and ensuring continuity of access to care. The Amended Preliminary Injunction will remain in place until Friday, Aug. 15 or until the court has decided whether to approve a global settlement of the case. The parties will submit the settlement papers to the court next week. 

“We hope that this settlement will benefit CDPAP consumers who still need help accessing long-term care services,” said Elizabeth Jois, supervising attorney in New York Legal Assistance Group (NYLAG)’s special litigation unit and one of the attorneys litigating the case. “This settlement will provide immediate outreach to CDPAP consumers who have struggled to use their services during this transition and connect all consumers to resources for help. We encourage every CDPAP consumer to reach out for help using their services.”

Key provisions of the settlement agreement include:

• DOH will order Managed Long Term Care Organizations, Mainstream Managed Care plans and Local Districts of Social Services to send a letter to all CDPAP consumers who have registered with PPL. This letter will give CDPAP consumers information about how to get help if they are having problems using their CDPAP services.
• Facilitators will have the same access to PPL systems as PPL call center staff do and will have the ability to flag issues for expedited help. Consumers will get a form for CDPAP participants to select a facilitator. Facilitators are able to assist consumers and their Personal Assistants (PAs) in enrollment, onboarding and training, and also by resolving day-to-day issues as they arise.
• Every consumer who is not registered with PPL, whose PAs are not registered, or who is registered but did not use their CDPAP services in June, will receive a letter telling them that their deadline for registering is Friday, Aug. 1. This letter will explain all of the ways they can register and the resources that are available to assist.
• DOH will order Managed Long-Term Care (MLTC) Plans to make additional efforts to contact CDPAP consumers who have not used their CDPAP services recently. This includes a letter, at least one home visit and reaching out to an authorized representative.
• Ultimately, every CDPAP consumer who does register with PPL, switches to another long-term service or begins using their CDPAP services through PPL by Friday, Aug. 1 will be sent a notice explaining their right to a fair hearing.
• DOH will issue guidance that will help managed care organizations, local districts of social services and PPL understand some of the CDPAP program rules better.  These guidance documents should help consumers receive services without interruption.
• DOH CDPAP Transition Hotline will continue to operate in its current capacity through Wednesday, Dec. 31 and will remain open in some form after that.

In the coming days, the parties will submit a final settlement agreement to the judge and ask that he start the process of approving the settlement. Because this case is a class action, the judge will order the parties to send notice to everyone in the class describing the settlement.

Class members will then have a chance to object to the settlement if desired at a fairness hearing. The parties are asking the judge to schedule a fairness hearing in early August to address any feedback from class members before deciding whether to approve the settlement.