Judge strikes down the State’s cuts to CDPAP, declares it unconstitutional!

On October 10, Judge Christina Ryba found in favor of NYAIL and our co-plaintiffs in our lawsuit against the Department of Health over their new policy that made devastating cuts to the Consumer Directed Personal Assistance (CDPA) program! 

NYAIL, CDPAANYS, HCP, and 11 Fiscal Intermediaries (FIs) brought a lawsuit against the Department of Health (DOH) to stop their July 1 policy from going into effect. This policy switched the administrative payment model to a Per Member Per Month (PMPM) model. Worse, it set the rates so low it would have put most all FIs out of business.

Over 70,000 people with disabilities and seniors rely on CDPA to live at home and stay out of institutions. CDPA puts the individual in control of their services. They hire and train their own aides. FIs provide crucial administrative supports to the individuals. CDPAP cannot work without the services provided by FIs. DOH’s July 1 policy put the whole program in jeopardy by setting the rates too low to support the program.

On October 10, Judge Christina Ryba found in our favor. She found that DOH failed to follow the State Administrative Procedures Act, and as a result, declared their July 1 policy null and void.

This is a big win! But the fight isn’t over. We do not yet know what DOH will do next. However, it gives us an opportunity to advocate with DOH to restructure the rates in a way that will achieve savings to the State, while preserving the program.


Judge: Cuts to New York home care program unconstitutional - Times Union

Groups that help disabled & elderly win lawsuit against NYS | WBFO

Crisis Averted: Court Strikes Down Rate Changes Set to Compound Caregiver Shortage  - Home Health Care News

FOR IMMEDIATE RELEASE:  Friday, July 26, 2019


  • Bryan O'Malley    (518) 495-2181 (cell)
  • Meghan Parker    (914) 417-8651 (cell)
  • Kathy Febraio       (518) 817-3921 (cell)


ALBANY, NY – As people with disabilities celebrated the 29th anniversary of the Americans with Disabilities Act, a group of associations and providers filed papers today, suing the New York State Department of Health (DOH) over a recently announced funding policy. They say the new method will bankrupt Consumer Directed Personal Assistance (CDPA), a popular Medicaid program that lets 90,000 people live independently in the community. CDPA allows seniors and individuals with disabilities to take charge of their own services and has become increasingly popular over the past several years.

The associations filing suit are the Consumer Directed Personal Assistance Association of NYS (CDPAANYS), the New York State Association of Health Care Providers (HCP), and the New York Association on Independent Living (NYAIL). All three organizations represent provider agencies in the CDPA program. In addition to the three associations, 12 individual agencies, known as fiscal intermediaries, have signed on to the suit.

The suit alleges that the DOH violated state laws and regulations in the development of a new rate for agencies and that it does not represent the actual cost of doing business. The policy that is being challenged was discussed during this year’s State budget process; however, the final budget did not include any language telling DOH to move forward, and important details were not made available until recently. The rate that was proposed would change reimbursement from an hourly basis to a “per member, per month” system. It would also dramatically reduce funds available to actually run the business, to $0.34 per hour or less for services provided.

As New York has become the center of a national workforce crisis in-home care, CDPA has allowed the state to continue to meet the needs of seniors and people with disabilities as they seek to live in the community. Those in need of services hire their own workers, who can include siblings, adult children, and other family members. While not eliminating the impact of the crisis entirely CDPA has allowed many individuals to have at least a minimum amount of services.

Those filing suit maintain that if the new rates take effect, the continued availability of CDPA is in jeopardy, with no resources in the community to take their place. Indeed, the DOH, in its application to the Federal government requesting permission for the rate change, admitted that the services do not exist in the community, saying that any issues people have receiving services because of the new rates can easily be met “…since there is excess bed capacity for both hospitals and nursing homes.” Advocates expressed disbelief at the bluntness of DOH’s rationale, noting that it violates the civil rights of people with disabilities, the ADA, and the Supreme Court’s Olmstead decision, which guarantees access to services in the least restrictive setting.

Bryan O’Malley, Executive Director of CDPAANYS, said, “We are not happy that we are celebrating the anniversary of the ADA by bringing this suit against the Department of Health; however, we cannot let this attack on critical services for people with disabilities and seniors go unchecked. We have offered alternative savings ideas and rate structures to the state and have been repeatedly rejected. This is the only avenue we have left to try to protect the 90,000 New Yorkers who rely on this service.”

“Despite ongoing attempts over the past few months to explain all of the work that goes into being a fiscal intermediary and the associated costs, DOH arbitrarily picked funding levels, based not on what it costs to be an FI, but the amount they wanted to save in the budget,” states Lindsay Miller, Executive Director of the New York Association on Independent Living. “Under these new rates, we expect to face rapid closure of FIs around the State, putting the entire consumer-directed model at risk,” Miller adds.

“The New York State Association of Health Care Providers (HCP) has grave concerns that consumers in the Consumer Directed Personal Assistance Program will be severely and negatively impacted by the Department of Health’s proposed changes for the program,” said Kathy Febraio, President. “Fiscal Intermediaries are being forced to consider closing their doors—leaving an untold number of consumers facing the unknown for their day-to-day care and potentially surrendering their independence.”

FOR IMMEDIATE RELEASE:  Friday, May 31, 2019

Contact:  Alexander Englander, Communications Specialist, (518) 465-4650
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The legislation now awaits Governor Andrew Cuomo’s signature

Albany, NY (May 31, 2019) - On Wednesday, May 29, 2019, the New York State Assembly and New York State Senate overwhelmingly passed bills A.4737 (Steck)/S.1674(Skoufis) to reinstate the Office of the Advocate for People with Disabilities. This Office, originally created under Governor Mario Cuomo, has been unfunded and unstaffed through Governor Andrew Cuomo’s first two terms in office.
The reinstatement of this Office will provide a vital advocacy voice for people with disabilities inside New York State government. Under Governor Mario Cuomo, this Office was crucial in advising and assisting the Governor in developing policies to benefit New Yorkers with disabilities. Since the Advocate’s Office was defunded, critical disability advocacy programs and services had been transferred to the Commission on Quality of Care and Advocacy for Persons with Disabilities, then to the Justice Center for the Protection of People with Special Needs, and are now largely non-existent.
Meghan Parker, Director of Advocacy at the New York Association on Independent Living (NYAIL) responded to news of the bill’s passage: “We have been urging the State to re-authorize this office for several years now as a necessary replacement for the advocacy and services that have largely disappeared. Re-opening and funding the Office of the Advocate has been a top legislative priority for the disability rights community and we are happy the Legislature has recognized how important this Office is to New Yorkers with disabilities and their families.”
“With Governor Cuomo’s signature, we will be keeping alive part of his father’s legacy while at the same time giving a new voice to hundreds of thousands of people across New York State,” added Lindsay Miller, NYAIL’s Executive Director. “We are especially appreciative of the leadership by Senator James Skoufis and Assemblyman Phil Steck in making this happen.”
About NYAIL – The New York Association on Independent Living (NYAIL) is a statewide membership organization of Independent Living Centers (ILCs), community-based not-for-profit providers of advocacy, services and supports for New Yorkers with disabilities of all ages. ILCs are controlled by, and largely staffed by, people with disabilities. NYAIL strengthens local Independent Living Centers and is a leader in the civil rights movement for all people with disabilities.