Will Your Fiscal Intermediary Be Chosen to Participate in New York's CDPAP?

Date   Jan 8, 2020

Executive Summary. The New York State Department of Health (DOH) recently issued a Request for Offers (RFO) from eligible entities who want to continue or first commence participating as Fiscal Intermediaries (FIs) under the New York Consumer Directed Personal Assistance Program (CDPAP). Because offers are due no later than February 18, 2020, the required format for offers is highly detailed and technical, and the RFO states that it is the DOH’s intent “to award the fewest number of contracts that preserve statewide access and consumer choice,” you will have to distinguish yourself from others in order to be selected. If you would like our assistance, based on our 25 years’ experience in educating, training and representing FIs, please give us a call.

Who is Eligible to Submit an Offer to DOH?

On December 18, 2019, DOH issued its RFO with all submissions due on or before February 18, 2020. All written questions are due on or before January 10, 2020, and the answers the DOH gives will be posted on its website. For a list of questions, please see our December 24, 2019 Legal Alert, “New York Mandates That Fiscal Intermediaries Be Joint Employers to Continue in Consumer Directed Personal Assistance Program.”

Current FIs that fail or choose not to submit a response to the RFO by February 18, 2020 “will be required to cease operations” as an FI in accordance with rules to be established by the DOH. Only entities that have successfully entered into a contract with the DOH under the terms of the RFO may continue to provide FI services either directly or through a contract with a Medicaid managed care organization (MCO).

Eligible offerors include:

a)  A service center for independent living (ILC) under Section 1121 of the New York Education Law; OR

b)  An entity that has been established as a Fiscal Intermediary prior to January 1, 2012, and has been continuously providing services for CDPAP consumers under section 365-f of the Social Services Law; OR

c)  Entities capable of appropriately providing fiscal intermediary services, performing the responsibilities of a fiscal intermediary and complying with SSL section 365-f.

All entities that have been providing FI services under CDPAP in New York since on or before April 21, 2019 are considered “current FIs” eligible (and required) to submit an offer in order to continue providing FI services. Current FIs remain authorized to provide FI services until further notice is provided by the DOH.

Eligible offerors will deliver FI services either on their own or as “Lead FI” in collaboration with other entities that meet the eligibility qualifications for submitting an offer under the RFO. The Lead FI will be responsible for fulfilling all program and contractual requirements, with collaborating entities being considered “subcontractors” for purposes of the offer.

What Must Your Offer Contain?

For current FIs, the FI services required to be provided by the offeror, if successful, remain essentially unchanged. However, for purposes of the RFO, the DOH now requires, among other things, that offerors and successful contractors accept and expressly acknowledge in writing their role as a “joint employer,” with the CDPAP consumer, of the personal assistants (PAs).

Each offeror is required to submit separate Administrative and Technical Offers, each of which will be evaluated separately. The Administrative Offer largely consists of various attestations and other representations in order to do business with New York State generally, including the filing of a New York State Vendor Responsibility Questionnaire (Vendor ID required). The Technical Offer consists largely of materials designed specifically to demonstrate the qualifications, competence and capacity of the offeror and its staff to provide FI services under CDPAP, including, among other things, documentation demonstrating (1) the offeror’s eligibility to submit an offer and, if appropriate, the eligibility of collaborating partners (i.e., subcontractors), (2) a description of the Lead FI’s proposed geographic service area and a description of services to be provided by collaborating subcontractors, (3) compliance with the certified payroll requirements of New York’s prevailing wage law, (4) the offeror’s ability and experience in performing the required FI services, and (5) the offeror’s attestation that it, and not any collaborating subcontractor, will directly enter into an FI contract with the DOH and assume all concomitant contractual responsibilities.

Each offer will receive a “Technical Score” that is based on:

  • ability to appropriately serve individuals participating in the program;
  • geographic distribution that would ensure access in rural and underserved areas;
  • demonstrated cultural and language competencies specific to the population of consumers and those of the available workforce;
  • ability to provide timely consumer assistance, experience serving individuals with disabilities, the availability of consumer peer support; and
  • demonstrated compliance with all applicable federal and state laws and regulations, including but not limited to those relating to wages and labor.

The DOH warns that offers that are incomplete in any material respect may be eliminated from consideration.

The Bottom Line. Time is short for FIs (or those who want to become FIs) to prepare and submit offers to participate in the State’s CDPAP. From the DOH’s statement in the RFO that “it is the Department’s intent to award the fewest number of contracts that preserve statewide access and consumer choice,” you will want to determine what distinguishes you from other FIs, explain what makes you a better choice than other FIs for the State’s CDPAP, and how best to convince the DOH to award you a contract to provide FI services.

FordHarrison LLP provides advice and counsel on all issues relating to New York’s CDPAP, including labor, employment and benefit issues. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your Fiscal Intermediary or home care agency, please contact the authors, Stephen Zweig at or 212-453-5906 or Philip Davidoff at or 212-453-5915 in FordHarrison's New York City office, or the FordHarrison attorney with whom you usually work.