Federal Judge Grants Provisional Approval for CDPAP Consumer Class Action Settlement with NYS Dept. of Health Over Troubled Home Care Program Transition

New York Legal Assistance Group and Patterson Belknap secure provisional approval for settlement negotiated on behalf of CDPAP participants who stood to lose services under chaotic transition to new program administrator

NEW YORK - Tuesday, Judge Frederic Block of the U.S. District Court for the Eastern District of New York provisionally approved a settlement agreement reached last month between New Yorkers who lost critical home care services through the Medicaid-funded Consumer Directed Personal Assistance Program (CDPAP) and the New York State Department of Health (DOH). The settlement marks a victory for plaintiffs 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 on behalf of older and Disabled New Yorkers at risk of losing access to essential CDPAP services following the State's tumultuous transition from 600 fiscal intermediaries to one, Public Partnerships LLC (PPL). The settlement will become final on Oct. 3, barring further objection under the Class Action Fairness Act.

The settlement approval comes one week after the class action fairness hearing, which gave class members an opportunity to comment on the settlement agreement filed reached after months of litigation and extensive negotiations between plaintiffs' counsel and the DOH. Engesser specifically challenged the DOH's failure to provide CDPAP consumers with written notice and an opportunity for a fair hearing before they lost services.

Under the negotiated preliminary injunction and settlement agreement, DOH ordered Managed Long Term Care (MLTC) plans to conduct extensive outreach to class members throughout July. That outreach was enormously successful - the majority of class members either began to use PPL as their fiscal intermediary or switched to a different type of home care service by Aug. 1. Ultimately, DOH has agreed to send legally sufficient notices to anyone who did not take steps to secure their homecare by Aug. 1. These notices will explain CDPAP consumers' rights to request fair hearings, and DOH will provide additional opportunities for pre-hearing resolution to any class member who requests a hearing.

"The filing of this litigation and ensuing settlement represents an outstanding outcome for several hundred thousand CDPAP consumers and their caregivers and has resulted in approximately 15,000 class members securing everything our law firms have fought for since March-namely, an additional four months to transition to PPL, and notice and an opportunity to be heard before a termination of CDPAP benefits-as well as much more," said Patterson Belknap partner, Lisa E. Cleary. "And instead of those benefits coming after many months of protracted litigation, they are coming now. We are very proud to have partnered with the New York Legal Assistance Group to secure this settlement for the class." 

"Our ultimate goals in bringing this litigation were to ensure that CDPAP consumers had adequate time and assistance to switch to the new state-wide fiscal intermediary, and that any consumer who was unable to get through that process received written notice explaining what steps they had missed and that they had the ability to present their issues in a fair hearing," said Elizabeth Jois, supervising attorney in NYLAG's Special Litigation Unit. "We appreciate that Judge Block has moved to thoughtfully and expediently guide the parties toward a beneficial outcome for CDPAP consumers. We know that there are class members who continue to face hurdles in accessing CDPAP services and that they deserve to have the relief we've worked hard to successfully negotiate on their behalf sooner rather than later. Throughout this process, Patterson Belknap has been an indispensable partner to NYLAG in our shared fight to advocate on behalf of CDPAP consumers to restore access to critical home care services."

In his 23-page decision, Judge Block wrote, "The Court commends Class Counsel and Defendant for their hard work in the spirit of cooperation. Over the past several months, the Court has [h]ad the privilege of dealing with the professional people at the highest level of our profession who are trying to do some good for the public. Patterson Belknap's commitment to its pro bono practice and NYLAG's service to marginalized New Yorkers has impressed the Court and undoubtedly inspired our legal community."

"Class members should know that if they have any issues, they can continue to reach NYLAG at [email protected] or 212-946-0359 or the Department of Health at 1-833-947-8666 or [email protected]," said Jois. "CDPAP consumers should also know that it is never too late to reach out for help, to register with PPL, or to discuss a change in their plan of care."

Key provisions of the settlement agreement include:

1. DOH directed 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 service.

   • A copy of the communication "CDPAP Resources for Consumers" is available here in English and Español.

2. 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. 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.
   • Consumers will get a form for CDPAP participants to select a facilitator, available here in English and Español.
     
     
3. 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, received a letter telling them that their deadline for registering was Aug. 1. This letter explained all of the ways they can register and the resources that are available to assist.
   
   
4. DOH ordered 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.
   
   
5. Ultimately, every CDPAP consumer who has NOT registered with PPL, switched to another long-term service or begun using their CDPAP services through PPL by Aug. 1 will be sent a notice explaining their right to a fair hearing.
   
   
6. DOH issued 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. 
   
   
7. DOH CDPAP Transition Hotline will continue to operate in its current capacity through Dec. 31 and will remain open in some form after that.
   • Department of Health CDPAP Transition Hotline (staffed Mondays through Fridays from 9 a.m. to 5 p.m.): 833-947-8666
   • CDPAP participants can also email the DOH CDPAP Transition Team for assistance at [email protected].
8. Plaintiffs' counsel will continue to have the ability to escalate individual cases for timely resolution.
   • CDPAP participants may contact NYLAG at [email protected] or 212-946-0359.

Updates will continue to be posted at nylag.org/engesser.

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