Federal Judge Grants Provisional Approval for CDPAP Consumer Class Action Settlement

NEW YORK—Judge Frederic Block of the United States District Court for the Eastern District of New York provisionally approved a settlement agreement reached last month between New Yorkers who lost critical homecare 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 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 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. As a result of that outreach, the majority of class members either began to use PPL as their fiscal intermediary or switched to a different type of homecare service by Aug. 1. Ultimately, DOH announced it 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 Lisa E. Cleary, partner at Patterson Belknap. “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." 

In his 23-page decision, the judge 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.”

Key provisions of the settlement agreement include:

• 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.
• 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
• 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 is Aug. 1. This letter explained all of the ways they can register and the resources that are available to assist.

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.

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.