STATE OF NEW YORK
________________________________________________________________________
5179
2009-2010 Regular Sessions
IN SENATE
April 27, 2009
___________
Introduced by Sen. C. JOHNSON -- read twice and ordered printed, and
when printed to be committed to the Committee on Health
AN ACT to amend the public health law, the social services law, the
education law, the insurance law and the state finance law, in
relation to enacting the Home Care Accessibility and Efficiency
Improvement Act (HCA-EIA)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Home Care Accessibility and Efficiency Improvement Act" (HCA-EIA).
3 § 2. Section 3616 of the public health law is amended by adding a new
4 subdivision 4 to read as follows:
5 4. (a) The commissioner, in consultation with representatives of home
6 care providers and consumers, shall establish an assessment instrument,
7 or similarly purposed electronic data-set, for the purpose of identify-
8 ing:
9 (i) patients' individualized home care services needs; and
10 (ii) based on these needs, the home care program or programs which
11 appear to most appropriately and cost-effectively meet each patient's
12 needs and to which a referral should be made, consistent with the
13 patient's consent.
14 (b) Such assessment or data-set shall also distinguish, for purposes
15 of section thirty-six hundred sixteen-c of this article, those patients
16 whose costs or service use exceed, respectively, one hundred fifty
17 percent of the medical assistance rate for nursing home care on a month-
18 ly basis in the county in which the patient resides or sixty hours of
19 personal care aide or home health aide services on a weekly basis.
20 (c) The instrument or data-set shall utilize existing federally
21 required assessment instruments or data-sets so as not to duplicate or
22 add to providers' and patients' assessment requirements, and shall
23 replace or incorporate any existing non-federally required assessment
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11541-01-9
S. 5179 2
1 for home care services, personal care services or services of a managed
2 long term care plan otherwise required by the department, including
3 instruments established by departmental rule, regulation or administra-
4 tive directive including the DMS-1, the Home Assessment Abstract and the
5 Semi-annual Assessment of Members.
6 (d) The commissioner shall complete work on the assessment instrument
7 or data-set sufficient to field test such instrument or data-set by no
8 later than September first, two thousand nine. The commissioner shall
9 complete the field test and report the results to the governor and the
10 legislature by no later than December first, two thousand nine. The
11 commissioner shall make any revisions to the instrument or data-set as a
12 result of the field test and implement such instrument or data-set by no
13 later than April first, two thousand ten. The commissioner shall report
14 to the governor and the legislature, by no later than September first,
15 two thousand ten, on the initial experiences with the assessment instru-
16 ment or data-set, including the ability of such instrument or data-set
17 to effectively identify patients' needs and identify those programs
18 which most appropriately and cost-effectively meet patients' needs.
19 (e) Beginning two years after the date of implementation of the
20 patient assessment developed pursuant to this subdivision, the commis-
21 sioner, in consultation with representatives of home care providers and
22 consumers, shall undertake a study of home care reimbursement under the
23 medical assistance program. The study shall be based on the data derived
24 pursuant to such patient assessment in combination with an examination
25 of provider costs reported for the provision of services on certified
26 cost reports for the most recent year available. The study shall deter-
27 mine whether alternate methods of reimbursement for such services would
28 result in improved: adequacy of payment; patient access; quality of care
29 and performance incentives; recruitment and retention of personnel;
30 provider financial stability; working capital for home care clinical and
31 information technology infrastructure; cost-effectiveness; and such
32 other elements essential to the operation and delivery of home care
33 services in the state. Such alternative methods shall provide for
34 weighted reimbursement levels according to severity and complexity of
35 patient needs.
36 The commissioner, following review and comment by representatives of
37 home care providers and consumers, shall report to the governor and the
38 legislature on his or her findings resulting from such study.
39 § 3. Subdivision 1 of section 367-c of the social services law, as
40 added by chapter 895 of the laws of 1977, is amended to read as follows:
41 1. (a) If a long term home health care program as defined under arti-
42 cle thirty-six of the public health law is provided in the social
43 services district for which he has authority, the local social services
44 official, before he authorizes care in a nursing home or intermediate
45 care facility for a person eligible to receive services under this
46 title, shall notify the person in writing of the provisions of this
47 section.
48 (b) The department in consultation with representatives of home care
49 providers, consumers, local departments of social services, hospitals,
50 nursing homes and physicians, shall prescribe the forms and related
51 communications, which may be in electronic format, required to provide
52 for this notification and the notification required pursuant to subdivi-
53 sions two, three, five and six of this section, subject to the avail-
54 ability of services in the patient's area of residence. The department
55 shall monitor local social services districts and other applicable enti-
56 ties and procedures to ensure compliance with these requirements so that
S. 5179 3
1 persons are not discharged to, or otherwise admitted to, nursing facili-
2 ties or other institutional settings without first being notified of the
3 option for care at home and referred for assessment, provided that the
4 person's physician deems that home care is an appropriate option for the
5 person and the person desires such care. In addition, the department
6 shall establish performance standards for local districts for such nurs-
7 ing home diversion pursuant to this section and subparagraph (ii) of
8 paragraph (b-1) of subdivision two of section three hundred sixty-four
9 of this chapter.
10 § 4. Section 367-c of the social services law is amended by adding a
11 new subdivision 6-a to read as follows:
12 6-a. Notwithstanding the provisions of subdivisions one through five
13 of this section, and subject to federal financial participation, on and
14 after April first, two thousand nine, the maximum budgeted expenditures
15 for persons receiving care under the provisions of this section shall be
16 as follows:
17 (a) Total monthly expenditures made under this title for all such
18 persons served by each provider of a long term home health care program
19 shall not, based on reasonable expectations, exceed a maximum of seven-
20 ty-five percent of the average of the rates payable under this title for
21 a comparable level of care in a nursing facility or a nursing facility
22 for children, as applicable, for such persons within the social services
23 district, when calculated over the same period;
24 (b) Provided however that, subject to federal financial participation,
25 in the case of persons with special needs as defined in subdivision
26 three of this section, such maximum aggregate expenditure shall be
27 adjusted to reflect a limitation of one hundred percent of such rates
28 for the proportion of such persons; and
29 (c) Provided further, however, that subject to federal financial
30 participation the commissioner shall identify individuals and/or popu-
31 lations with conditions or circumstances for whom exemption from the
32 aggregate maximum expenditure limitations provided for pursuant to this
33 section is necessary to permit the most appropriate and cost-effective
34 care of such individuals through the long term home health care program.
35 § 5. Subdivision 2 of section 3616 of the public health law, as
36 amended by chapter 622 of the laws of 1988, is amended to read as
37 follows:
38 2. Continued provision of a long term home health care program, AIDS
39 home care program or certified home health agency services paid for by
40 government funds shall be based upon a comprehensive assessment of the
41 medical, social and environmental needs of the recipient of the
42 services. Such assessment shall be performed at least every one hundred
43 [twenty] eighty days by the provider of a long term home health care
44 program, AIDS home care program or the certified home health agency
45 providing services for the patient and the local department of social
46 services, and shall be reviewed by a physician charged with the respon-
47 sibility by the commissioner. The commissioner shall prescribe the forms
48 on which the assessment will be made.
49 § 5-a. Discontinuation of local social services districts' role in
50 assessment and authorization for home care. 1. The commissioner of
51 health shall report to the governor and the legislature on the feasibil-
52 ity, appropriateness and cost-effectiveness of eliminating the involve-
53 ment of local social services districts in the assessment and authori-
54 zation for home care services, and consolidating such responsibilities
55 within home care providers and programs as well as managed long term
56 care plans, considering:
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1 (a) The capacity of the assessment implemented pursuant to subdivision
2 5 of section 3616 of the public health law to identify patient needs and
3 to direct referrals toward the most appropriate home care programs based
4 on those needs;
5 (b) The capacity of modifications to the reimbursement methodology
6 recommended pursuant to paragraph (e) of such subdivision 5 to provide
7 for adequate cost controls;
8 (c) The capacity for adequate oversight of home care providers by the
9 department of health given the modification of the local districts'
10 role;
11 (d) Duplicative expenses in the medical assistance expenditures asso-
12 ciated with the local social services district's responsibilities and
13 the responsibilities of home care agencies, and the opportunity for cost
14 savings to the medical assistance program by eliminating such dupli-
15 cation;
16 (e) Opportunity for more efficient and streamlined access to care and
17 more efficient use of home care personnel resources; and
18 (f) Such other factors as the commissioner of health shall deem neces-
19 sary to consider.
20 2. As applicable, the report shall include a process and timetable for
21 the discontinuation of local social services districts' involvement in
22 home care services assessment and authorization.
23 3. In the interim, in accordance with sections six and seven of this
24 act, the commissioner of health shall establish and enforce performance
25 standards for local district responsibilities with regard to home care
26 services.
27 § 6. Subdivision 2 of section 364 of the social services law is
28 amended by adding a new paragraph (b-1) to read as follows:
29 (b-1) establishing, maintaining and auditing to ensure compliance with
30 performance standards for local social services districts for any statu-
31 torily required duties in the assessment and authorization of home care
32 services to ensure that:
33 (i) such assessments and authorizations are timely and do not other-
34 wise obstruct access to home care services or programs;
35 (ii) local district performance does not result in extended hospital
36 or nursing facility stays or in avoidable nursing home placements and
37 that local social services districts achieve and maintain standards in
38 fulfillment of the patient notification and nursing home diversion
39 provisions pursuant to subdivision one of section three hundred sixty-
40 seven-c of this chapter;
41 (iii) determinations and directives by local districts are consistent
42 with state requirements; and
43 (iv) in the case of personal care program services, that local
44 district management of such services meets the department's performance
45 goals for appropriateness and cost-effectiveness of services authorized.
46 § 7. Notwithstanding any inconsistent provision of law, the commis-
47 sioner shall establish annual medical assistance savings targets for
48 each local social services district based on the district's adherence to
49 performance standards for nursing home avoidance in accordance with
50 subparagraph (ii) of paragraph (b-1) of subdivision 2 of section 364 of
51 the social services law and the district's adherence to performance
52 standards for personal care services established in accordance with
53 subparagraph (iv) of such paragraph (b-1). The department is authorized
54 to audit and intercept funds, otherwise payable to a local social
55 services district, for failure to meet the district's savings target, in
S. 5179 5
1 an amount up to the difference between the target and any savings toward
2 the target that the district has achieved.
3 § 8. The social services law is amended by adding a new section 367-v
4 to read as follows:
5 § 367-v. Benchmarks for personal care services. 1. The commissioner
6 shall establish benchmarks for personal care services hours to promote
7 the efficiency and accessibility of such services and to eliminate
8 unjustified variation in authorized hours.
9 2. Benchmarks shall initially be established based on the average
10 authorized personal care hours per patient on a county-to-county basis.
11 In establishing and applying such benchmarks, the commissioner shall
12 consider differences in local health delivery systems as well as other
13 factors which may result in justifiable variation. The commissioner may
14 establish county peer groups for purposes of establishing regional aver-
15 ages and may also utilize a methodology which selects an average at a
16 specified percentile.
17 3. Local districts shall be monitored and annually compared to the
18 established benchmarks for purposes of state share reimbursement.
19 4. After initially establishing benchmarks based on county averages,
20 the commissioner shall explore and report to the governor and the legis-
21 lature on the feasibility and advisability of establishing and imple-
22 menting benchmarks based on case-sensitive criteria.
23 § 9. Subdivision 1 of section 3614 of the public health law, as
24 amended by chapter 622 of the laws of 1988, is amended to read as
25 follows:
26 1. No government agency shall purchase, pay for or make reimbursement
27 or grants-in-aid for services provided by a home care services agency, a
28 provider of a long term home health care program or a provider of an
29 AIDS home care program unless, at the time the services were provided,
30 the home care services agency possessed a valid certificate of approval
31 or the provider of a long term home health care program or AIDS home
32 care program had been authorized by the commissioner to provide such
33 program. However, contractual arrangements between a certified home
34 health agency, provider of a long term home health care program, provid-
35 er of an AIDS home care program, or government agency and any home care
36 services agency shall not be prohibited, provided that the certified
37 home health agency, provider of a long term home health care program,
38 provider of an AIDS home care program, or government agency maintains
39 full responsibility for the plan of treatment and the care rendered and
40 contracts are consistent with the terms provided for in section thirty-
41 six hundred sixteen-b of this article.
42 § 10. The public health law is amended by adding a new section 3616-b
43 to read as follows:
44 § 3616-b. Contracts between home care services agencies. 1. Contracts
45 between certified home health agencies, long term home health care
46 programs or AIDS home care programs and licensed home care services
47 agencies for the provision of home health aide or personal care aide
48 services shall include but not be limited to the following assurances or
49 provisions:
50 (a) Audits by certified home health agencies, long term home health
51 care programs and AIDS home care programs to ensure that contracted
52 licensed home care services agencies are in compliance with contracted
53 certified home health agency, long term home health care program or AIDS
54 home care program provider policies and procedures, and contract
55 requirements, as well as applicable federal and state laws; including:
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1 (i) Onsite audit review of personnel records, paraprofessional
2 profiles, scheduling coordinator knowledge of patient referral and
3 contract guidelines and adherence to paraprofessional visit documenta-
4 tion standards;
5 (ii) Establishment of audit area thresholds and stipulation that fail-
6 ure to achieve the established thresholds in any area will result in
7 follow-up focused audits to ensure that there is improvement;
8 (iii) Requirement for corrective action plans when the contracted
9 licensed home care services agency does not meet the established thresh-
10 olds.
11 (b) A call-in or other tracking system requiring that:
12 (i) Contracted licensed home care services agencies require home care
13 aides to communicate telephonically, electronically or through other
14 means for patient care visit verification;
15 (ii) The tracking system records the start of the visit, end of the
16 visit and each of the specific tasks performed during the home care
17 aide's visit or the personal care aide's visit and, when new tasks are
18 added to the tracking system, the contracted licensed home care services
19 agencies are mandated to train all of their home care aides on the new
20 tasks;
21 (iii) Billing audits are conducted regularly at each contracted
22 licensed home care services agency to ensure compliance with standards
23 for patients without phones or for those situations when the tracking
24 system is unavailable and a manual visit entry is required.
25 (c) Training program audits, including:
26 (i) Confirmation that the contracted licensed home care agency train-
27 ing program is on the approved lists regularly published on the depart-
28 ment's health provider network and/or the department of education;
29 (ii) Examination of the program's most recent departmental survey and
30 any plan of correction;
31 (iii) Audit of the administration of the contracted licensed home care
32 agency training program to ensure that such agencies have developed and
33 are following policy and procedure as it relates to training certificate
34 security and tracking and training program attendance;
35 (iv) Requirement for contracted licensed home care agency contract
36 managers or agency administrators to attend, on a periodic basis,
37 management meetings at the contracting certified home health agency,
38 long term home health care program or AIDS home care program related to
39 the contracted services;
40 (d) Training programs for in-service requirements covering state
41 mandated training requirements and including those addressing priority
42 areas related to quality of care, patient rehabilitation, reduced hospi-
43 talization and infection control;
44 (e) Performance review and improvement process of the contracted
45 licensed home care services agency, including performance monitoring at
46 least biannually:
47 (f) Visit verification system that includes a standardized process for
48 visit verification through random attendance checks via telephone and
49 random visits to the home during home care aide service delivery;
50 (g) Benchmarking for purposes of measurement and improvement of quali-
51 ty care among contracted agencies;
52 (h) A theft-investigation and repayment process to ensure consistent
53 response to reports of theft by home care personnel, including a
54 requirement to have a theft liaison to respond to agency-related theft
55 allegations, and responsibility for cost sharing associated with inves-
56 tigations and repayment; and
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1 (i) Provisions for payments between the certified home care agency,
2 long term home health care program or AIDS home care program and the
3 contracted licensed home care services agency that effectively allow for
4 prompt payment according to negotiated contract payment terms.
5 2. The commissioner shall consider agency caseload size in determining
6 the applicability to agencies of some or all of the requirements speci-
7 fied in this section to the extent that the fulfillment of such require-
8 ments would not be practicable or would be burdensome due to small agen-
9 cy size.
10 § 11. The public health law is amended by adding a new section 3616-c
11 to read as follows:
12 § 3616-c. Targeted intervention to patients with high cost/high
13 service use. 1. The department shall assist, through shared data, best
14 practices, reimbursement and other means, certified home health agen-
15 cies, long term home health care programs and managed long term care
16 programs to improve and customize interventions relating to the care and
17 management of populations identified pursuant to section thirty-six
18 hundred sixteen of this article in order to promote the highest quality,
19 accessible and cost-effective care for such individuals.
20 2. In addition, the department shall assist providers to undertake
21 efforts to facilitate collaboration between levels of care, including
22 hospital, physician and home care, as well as fields of care, including
23 medical, mental health and alcohol and drug treatment, to promote the
24 coordinated management and care of such patients.
25 3. As may be necessary to facilitate the enrollment and care in
26 programs determined by the assessment to be most appropriate and cost-
27 effective to meet the needs of such patients, the department shall iden-
28 tify program and system barriers to such enrollment and care and shall
29 be authorized to waive provisions of this chapter and the social
30 services law, as well as the respective regulation, for such purpose.
31 The department shall report to the legislature with regard to such waiv-
32 ers in order that the legislature may consider statutory revisions as
33 necessary.
34 4. To the extent that funds are made available therefor, the depart-
35 ment shall make grants to facilitate the purposes of this section.
36 § 12. Clause (iii) of paragraph a of subdivision 1 of section 6908 of
37 the education law, as amended by chapter 160 of the laws of 2003, is
38 amended to read as follows:
39 (iii) the providing of care by a person acting in the place of a
40 person exempt under clause (i) of this paragraph, but who does hold
41 himself or herself out as one who accepts employment for performing such
42 care, where nursing services are under the instruction of a licensed
43 nurse, or under the instruction of a patient or family or household
44 member determined by a registered professional nurse to be self-direct-
45 ing and capable of providing such instruction, and any remuneration is
46 provided under section three hundred sixty-five-f of the social services
47 law or for services under an entity certified, approved or licensed
48 under article thirty-six of the public health law; or
49 § 13. The public health law is amended by adding a new section 3621-a
50 to read as follows:
51 § 3621-a. Home telehealth medical assistance efficiency initiative. 1.
52 The commissioner is hereby authorized and directed to establish a home
53 telehealth care initiative for the purpose of applying such services in
54 a manner to achieve efficiencies in the medical assistance program.
55 Pursuant to such initiative, home telehealth services shall be applied
56 in techniques and to targeted populations to improve patient care
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1 management, treatment compliance, outcomes and/or prevention of further
2 illness or injury so as to specifically reduce or offset the need for
3 other, more costly medical assistance services.
4 2. The commissioner shall consult with representatives of home care
5 providers, consumers and other individuals with expertise in home tele-
6 health care to determine the populations and/or conditions most likely
7 to benefit and achieve cost-effective results pursuant to this section,
8 as well as the specific technology and approaches to home telehealth
9 which constitute the best practices to employ for such goals.
10 3. The commissioner shall expeditiously consider provider applications
11 for participation in such initiative by home care agencies and programs.
12 4. The commissioner shall provide reimbursement to participating
13 providers pursuant to subdivision three-a of section thirty-six hundred
14 fourteen of this article and such other methods as the commissioner
15 deems appropriate to achieve the purposes of this section. The commis-
16 sioner may also provide other positive financial incentives for provider
17 participation in such initiative including grants to facilitate the
18 development and operation of such initiatives.
19 § 14. The public health law is amended by adding a new section 3616-d
20 to read as follows:
21 § 3616-d. Low vision assessment and intervention. 1. There is hereby
22 established a program to assess home care patients for low vision and
23 the need for intervention to enable their safe and optimal functioning
24 at home, including their reduced risk of accidents, injury and preventa-
25 ble high cost health services utilization, including institutionaliza-
26 tion.
27 2. Pursuant to such program, the commissioner shall incorporate, as
28 part of the basic home care assessment process, criteria for screening
29 for low vision as well as criteria which indicate the need for inter-
30 vention. In establishing such criteria, the commissioner shall consult
31 with representatives of home care services providers, consumers and
32 professionals with expertise in the screening, diagnosis and treatment
33 of vision loss and in vision rehabilitation.
34 3. Upon a determination that intervention is warranted, providers of
35 home care services shall, with the patient's consent and subject to
36 availability, arrange for the necessary services with agencies estab-
37 lished to assist the visually impaired. Such services shall be reflected
38 within the patient's plan of care approved by the physician.
39 4. The commissioner, in consultation with the aforementioned represen-
40 tatives, shall issue any guidelines as may be reasonably necessary for
41 the implementation of this program.
42 § 15. Federal-state Medicare shared savings partnership program. 1.
43 Notwithstanding any provision of law to the contrary, the commissioner
44 of health shall seek federal approval for the establishment of a feder-
45 al-state Medicare shared savings partnership program. Such program shall
46 provide an incentive through shared savings to the state for achieving
47 federal cost-savings and efficiencies to Medicare, such as from reduced
48 expenditures for hospital and other medical care, which result from
49 state initiatives in the care and management of Medicare beneficiaries.
50 Such incentive shall provide for a reinvestment of a proportion of such
51 federal savings into the state's health care system.
52 2. The commissioner of health shall provide at least forty-five days
53 notice to the legislature prior to the submission of any formal proposal
54 to federal officials for such program in order to afford the legislature
55 an opportunity for input.
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1 § 16. The state finance law is amended by adding a new section 97-jjjj
2 to read as follows:
3 § 97-jjjj. Federal-state Medicare shared savings partnership program
4 fund. 1. There is hereby established in the sole custody of the state
5 comptroller a fund to be known as the "federal-state Medicare shared
6 savings partnership program fund".
7 2. The fund shall consist of those monies received from the federal
8 government for savings achieved under the federal-state Medicare shared
9 savings partnership program resulting from state initiatives in the care
10 and management of Medicare beneficiaries.
11 3. Notwithstanding any provision of law to the contrary, where and to
12 the extent that federal revenues or savings under subdivision two of
13 this section are made available to the state, such revenues or savings
14 shall be deposited in the fund which shall be used to support the health
15 care system in the state.
16 4. All monies shall remain in such fund unless otherwise disbursed
17 pursuant to appropriation by the legislature.
18 § 17. 1. Notwithstanding any provision of law or regulation to the
19 contrary, the commissioner of education, in consultation with the state
20 board for nursing and the state board of pharmacy, shall promulgate
21 guidelines which allow for the prefill of up to a fifteen day supply of
22 medication prescribed by a physician or other authorized practitioner
23 and provided to an individual by a registered professional nurse for
24 individuals receiving home care services ordered by an authorized prac-
25 titioner and provided under the supervision of a registered professional
26 nurse.
27 2. The commissioner of education, in consultation with such state
28 boards, shall examine the experiences pursuant to such guidelines and,
29 on or before April 1, 2010, recommend to the governor and the legisla-
30 ture any changes as may be necessary to this section.
31 § 18. 1. The superintendent of insurance shall examine the feasibility
32 and benefit of establishing a mechanism to ensure voluntary access to
33 long term care insurance coverage through the state's long term care
34 insurance partnership program for individuals unable to access the
35 voluntary market. In conducting such examination, the superintendent of
36 insurance shall consider similar mechanisms utilized by New York state
37 or other states to provide access to insurance coverage when the volun-
38 tary market is inaccessible due to price or underwriting, including the
39 model provided through the medical malpractice insurance program imple-
40 mented by the state department of insurance.
41 2. In considering the benefits of such a mechanism, the superintendent
42 of insurance shall examine the benefit of long term care insurance
43 access for the potentially covered population as well as the benefit to
44 the state's medical assistance program resulting from the increase in
45 private financing of such care through such mechanism. The superinten-
46 dent of insurance shall also consider the impact of such a mechanism on
47 the voluntary long term care insurance market in the state. The super-
48 intendent of insurance shall submit his written findings and proposals
49 to the governor and the legislature no later than June 1, 2009.
50 § 19. Subparagraphs (C), (D) and (E) of paragraph 1 of subsection (k)
51 of section 3221 of the insurance law, subparagraphs (C) and (D) as
52 amended by chapter 557 of the laws of 2000, are amended to read as
53 follows:
54 (C) Home care means the care and treatment of a covered person who is
55 under the care of a physician but only if hospitalization or confinement
56 in a nursing facility as defined in subchapter XVIII of the federal
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1 Social Security Act, 42 U.S.C. §§ 1395 et seq, would otherwise have been
2 required if home care was not provided, or if the provision of home care
3 is necessary for the person's condition in order to prevent hospitaliza-
4 tion or nursing facility confinement, and the plan covering the home
5 health service is established and approved in writing by such physician.
6 (D) Home care shall be provided by an agency possessing a valid
7 certificate of approval or license issued pursuant to article thirty-six
8 of the public health law and shall consist of one or more of the follow-
9 ing:
10 (i) Part-time or intermittent home nursing care by or under the super-
11 vision of a registered professional nurse (R.N.).
12 (ii) Part-time or intermittent home health aide services which consist
13 primarily of caring for the patient.
14 (iii) Physical, occupational or speech therapy, social work, respir-
15 atory therapy and nutritional counseling, if provided by the home health
16 service or agency.
17 (iv) Medical supplies, drugs and medications prescribed by a physi-
18 cian, and laboratory services by or on behalf of a certified home health
19 agency or licensed home care services agency to the extent such items
20 would have been covered under the contract if the covered person had
21 been hospitalized or confined in a skilled nursing facility as defined
22 in subchapter XVIII of the federal Social Security Act, 42 U.S.C. §§
23 1395 et seq.
24 (E) For the purpose of determining the benefits for home care avail-
25 able to a covered person, each visit by a member of a home care team
26 shall be considered as one home care visit; the contract may contain a
27 limitation on the number of home care visits, but not less than [forty]
28 one hundred four such visits in any calendar year or in any continuous
29 period of twelve months, for each person covered under the contract;
30 four hours of home health aide service shall be considered as one home
31 care visit.
32 § 20. Paragraph 3 of subsection (a) of section 4303 of the insurance
33 law, subparagraphs (A), (B) and (C) as amended by chapter 557 of the
34 laws of 2000 and subparagraph (D) as amended by chapter 21 of the laws
35 of 1990, is amended to read as follows:
36 (3) For home care to residents in this state. Such home care coverage
37 shall be included at the inception of all new contracts and, with
38 respect to all other contracts, added at any anniversary date of the
39 contract subject to evidence of insurability. Such coverage may be
40 subject to an annual deductible of not more than fifty dollars for each
41 covered person and may be subject to a coinsurance provision which
42 provides for coverage of not less than seventy-five percent of the
43 reasonable cost of services for which payment may be made. No such
44 corporation need provide such coverage to persons eligible for medicare.
45 (A) Home care shall mean the care and treatment of a covered person
46 who is under the care of a physician but only if:
47 (i) hospitalization or confinement in a nursing facility as defined in
48 subchapter XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq,
49 would otherwise have been required if home care was not provided, or if
50 the provision of home care is necessary for the person's condition in
51 order to prevent hospitalization or nursing facility confinement, and
52 (ii) the plan covering the home health service is established and
53 approved in writing by such physician.
54 (B) Home care shall be provided by an agency possessing a valid
55 certificate of approval or license issued pursuant to article thirty-six
56 of the public health law.
S. 5179 11
1 (C) Home care shall consist of one or more of the following:
2 (i) part-time or intermittent home nursing care by or under the super-
3 vision of a registered professional nurse (R.N.),
4 (ii) part-time or intermittent home health aide services which consist
5 primarily of caring for the patient,
6 (iii) physical, occupational or speech therapy, social work, respir-
7 atory therapy and nutritional counseling, if provided by the home health
8 service or agency, and
9 (iv) medical supplies, drugs and medications prescribed by a physi-
10 cian, and laboratory services by or on behalf of a certified home health
11 agency or licensed home care services agency to the extent such items
12 would have been covered or provided under the contract if the covered
13 person had been hospitalized or confined in a skilled nursing facility
14 as defined in subchapter XVIII of the Social Security Act, 42 U.S.C. §
15 1395 et seq.
16 (D) For the purpose of determining the benefits for home care avail-
17 able to a covered person, each visit by a member of a home care team
18 shall be considered as one home care visit. The contract may contain a
19 limitation on the number of home care visits, but not less than [forty]
20 one hundred four such visits in any calendar year or in any continuous
21 period of twelve months, for each covered person. Four hours of home
22 health aide service shall be considered as one home care visit. Every
23 contract issued by a hospital service corporation or health service
24 corporation which provides coverage supplementing part A and part B of
25 subchapter XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq,
26 must make available and, if requested by a subscriber holding a direct
27 payment contract or by all subscribers in a group remittance group or by
28 the contract holder in the case of group contracts issued pursuant to
29 section four thousand three hundred five of this article, provide cover-
30 age of supplemental home care visits beyond those provided by part A and
31 part B, sufficient to produce an aggregate coverage of three hundred
32 sixty-five home care visits per contract year. Such coverage shall be
33 provided pursuant to regulations prescribed by the superintendent. Writ-
34 ten notice of the availability of such coverage shall be delivered to
35 the group remitting agent or group contract holder prior to inception of
36 such contract and annually thereafter[, except that this notice shall
37 not be required where a policy covers two hundred or more employees or
38 where the benefit structure was the subject of collective bargaining
39 affecting persons who are employed in more than one state.
40 The provisions of this subsection shall not apply to a contract issued
41 pursuant to section four thousand three hundred five of this article
42 which covers persons employed in more than one state or the benefit
43 structure of which was the subject of collective bargaining affecting
44 persons who are employed in more than one state].
45 § 21. Paragraph c of subdivision 8 of section 3602 of the public
46 health law, as amended by chapter 622 of the laws of 1988, is amended to
47 read as follows:
48 c. Approved long term home health care program providers may include,
49 as part of their long term home health care program, upon approval by
50 the commissioner, a discrete AIDS home care program as defined in this
51 section; such providers may also coordinate with a hospice approved
52 under article forty of this chapter for the provision of hospice and
53 palliative care services in conjunction with the long term home health
54 care program.
55 § 22. The public health law is amended by adding a new section 3616-e
56 to read as follows:
S. 5179 12
1 § 3616-e. Collaborative care of self-directing patients. 1. Notwith-
2 standing any inconsistent provision of this chapter or section three
3 hundred sixty-five-f of the social services law related to the consumer
4 directed personal assistance program, any certified home health agency,
5 long term home health care program or managed long term care plan oper-
6 ating pursuant to this chapter shall be permitted to collaborate for the
7 provision of patient care with consumer directed personal assistance
8 providers.
9 2. Any services provided by a certified home health agency, long term
10 home health care program or managed long term care plan to a patient
11 collaboratively served with a consumer directed personal assistance
12 program provider shall not be duplicative. The provider of consumer
13 directed personal assistance services together with the self-directing
14 patient or directing caregiver shall, consistent with the provisions of
15 section three hundred sixty-five-f of the social services law, be
16 responsible for any consumer directed personal assistance services that
17 are provided. The certified home health agency, long term home health
18 care program or managed long term care plan shall be responsible for all
19 other services as required pursuant to this article and the regulations
20 of the department.
21 3. The commissioner is authorized to promulgate such regulations or
22 guidelines as may be necessary to ensure the appropriateness of medical
23 assistance expenditures pursuant to this section.
24 § 23. Notwithstanding any provision of law or regulation to the
25 contrary, the commissioner of health shall establish procedures to
26 permit long term home health care programs and providers of other
27 services covered pursuant to federal waivers or which provide case
28 management services to collaborate to jointly serve individuals when the
29 services of both entities are necessary to meet such an individual's
30 needs; provided, however, that the two entities shall maintain distinct
31 yet coordinated service and case management responsibilities and shall
32 not duplicate benefits.
33 § 24. The commissioner of health shall provide that as part of the
34 terms of the department of health's contracts for managed long term care
35 plans and Medicaid Advantage Plus plans that such plans shall be permit-
36 ted to contract with providers of long term home health care programs
37 for the provision of home and community based services to the plan's
38 enrollees. Notwithstanding any provision of law or regulation to the
39 contrary, the commissioner may waive the patient service budgeting
40 requirements and expenditure limits applicable to the care of long term
41 home health care program patients in order to avoid conflict or dupli-
42 cation with the capitation provisions of managed long term care plans or
43 Medicaid Advantage Plus plans.
44 § 25. Paragraph (c) of subdivision 3 of section 364-j of the social
45 services law is amended by adding a new subparagraph (vii) to read as
46 follows:
47 (vii) a person receiving services provided by a long term home health
48 care program.
49 § 26. Subparagraph (ix) of paragraph (e) of subdivision 3 of section
50 364-j of the social services law, as amended by chapter 648 of the laws
51 of 1999, is amended to read as follows:
52 (ix) HIV COBRA case management; [and]
53 § 27. Subparagraph (x) of paragraph (e) of subdivision 3 of section
54 364-j of the social services law, as amended by chapter 648 of the laws
55 of 1999, is renumbered (xi) and a new subparagraph (x) is added to read
56 as follows:
S. 5179 13
1 (x) services provided pursuant to a long term home health care program
2 pursuant to article thirty-six of the public health law and section
3 three hundred sixty-seven-c of this title; and
4 § 28. Subparagraph (i) of paragraph (d) of subdivision 3 of section
5 364-j of the social services law, as amended by section 67 of part A of
6 chapter 1 of the laws of 2002, is amended to read as follows:
7 (i) [a person receiving services provided by a long term home health
8 care program, or] a person receiving inpatient services in a state-oper-
9 ated psychiatric facility or a residential treatment facility for chil-
10 dren and youth;
11 § 29. Subdivisions 1 and 3 of section 2807-h of the public health law,
12 as amended by chapter 255 of the laws of 1994, are amended to read as
13 follows:
14 1. The commissioner shall authorize health occupation development and
15 workplace demonstration programs and is directed to make rate adjust-
16 ments, subject to the availability of funds therefor, to cover the costs
17 of such programs; provided that the commissioner may also authorize such
18 programs without such rate adjustments, upon application by providers,
19 to promote the health occupation development and workplace improvement
20 purposes specified in this section. Providers shall be eligible for
21 rate adjustments to develop, implement and evaluate programs to test new
22 models of organization and delivery of services, and the use of new
23 technologies to improve efficiency, utilization and productivity of
24 existing health care personnel; to reduce time that patient care staff
25 spend meeting documentation requirements; and to improve the recruitment
26 and retention of health personnel. Eligible providers shall consult with
27 staff, professional associations, unions and other affected organiza-
28 tions in the development of proposals. The commissioner is authorized to
29 waive, modify or suspend the respective provisions of rules and regu-
30 lations promulgated pursuant to this chapter or the social services law
31 if the commissioner determines that such waiver, modification or suspen-
32 sion is necessary for the successful implementation of a demonstration
33 program and provided that the commissioner determines that the health,
34 safety and general welfare of people receiving health care under such
35 demonstration program will not be impaired as a result of such waiver,
36 modification or suspension. The commissioner shall consult with the
37 professional associations appropriate to the rule or regulation proposed
38 for waiver, modification or suspension prior to approval or disapproval
39 of the program. Such waiver, modification or suspension may be granted
40 for up to two years, or such longer period as may be necessary to
41 support the purposes of the demonstration program. Waivers, modifica-
42 tions and suspensions granted under this subdivision must be specific to
43 the program approved by this subdivision.
44 3. The commissioner shall conduct evaluations of the health occupation
45 development and workplace demonstration programs and shall report his
46 findings to the governor and the chairs of the senate and assembly
47 committees on health. Such evaluations shall include an examination of
48 the effectiveness of the program to improve productivity, efficiency,
49 development and utilization of personnel. Such report shall be due on
50 April thirtieth, nineteen hundred ninety-five, on January first, two
51 thousand eleven, and biennially thereafter. To facilitate the commis-
52 sioner's evaluations and reports, providers implementing health occupa-
53 tion development and workplace demonstration programs shall examine the
54 effectiveness of their program and report their experiences to the
55 commissioner.
S. 5179 14
1 § 30. Subdivision 6 of section 3614 of the public health law, as
2 amended by chapter 255 of the laws of 1994, is amended to read as
3 follows:
4 6. Subject to the [availability of funds] provisions of section twen-
5 ty-eight hundred seven-h of this chapter, the commissioner shall author-
6 ize health occupation development and workplace demonstration programs
7 [pursuant to the provisions of section twenty-eight hundred seven-h of
8 this chapter] for certified home health agencies, long term home health
9 care programs [and], AIDS home care programs and licensed home care
10 services agencies, and, subject to the availability of funds, the
11 commissioner is hereby directed to make rate adjustments to cover the
12 cost of such programs.
13 § 31. The public health law is amended by adding a new section 3606-b
14 to read as follows:
15 § 3606-b. Special provisions for establishment or construction of
16 certified home health agencies and long term home health care programs.
17 1. Priority establishment and construction. Applications for home care
18 construction or establishment shall be processed as a priority by the
19 department, the state hospital review and planning council and the
20 public health council, as applicable, when the application is:
21 (a) Filed for an expansion of a long term home health care program
22 when the applicant's patient census is at seventy-five percent of capac-
23 ity or greater, notwithstanding the census to capacity ratio of other
24 providers in the service area;
25 (b) Filed by an applicant to meet an expanded need for home care
26 created by an agency or facility closure or service capacity reduction
27 impacting the need for home care;
28 (c) Filed pursuant to the rural home care flexibility program pursuant
29 to section thirty-six hundred twenty-two of this article; or
30 (d) Filed pursuant to such other criteria as the commissioner deter-
31 mines meet the need for priority consideration.
32 2. Facilitation of multilevel service providers. (a) The commissioner
33 shall encourage and facilitate the provision of home care services by
34 multilevel service providers for the purposes of promoting efficiency
35 and continuity of care. For purposes of this section, multilevel service
36 providers shall mean providers with existing approval or licensure for
37 two or more operating certificates pursuant to article twenty-eight,
38 thirty-six or forty of this chapter which include a general hospital, a
39 nursing facility, a certified home health agency, a long term home
40 health care program, a hospice or a managed long term care plan.
41 (b) The provision of home care by multilevel service providers may be
42 through direct means or through the formation of networks or other clin-
43 ical or corporate affiliations among existing providers.
44 (c) The department and, as applicable, the state hospital review and
45 planning council and the public health council, shall be authorized to
46 give priority consideration in or otherwise modify the certificate of
47 need process, expand long term home health care program capacity, insti-
48 tute positive financial incentives or take such other steps that fulfill
49 the purposes of this section in facilitating efficiency and continuity
50 of care through multilevel service providers.
51 § 32. Section 3622 of the public health law, as renumbered by section
52 22 of part C of chapter 58 of the laws of 2004, is renumbered section
53 3623 and a new section 3622 is added to read as follows:
54 § 3622. Rural home health flexibility program. 1. The legislature
55 finds and declares that the provision and accessibility of home health
56 care and long term home health care program services in rural areas
S. 5179 15
1 necessitates regulatory flexibility in order for limited resources to be
2 best utilized and maximized to meet the health care needs of rural citi-
3 zens and to promote the efficiency of the delivery of services in rural
4 areas. The legislature therefore establishes a rural home health flexi-
5 bility program for such purposes.
6 2. Pursuant to the purposes of this section, the commissioner,
7 notwithstanding any inconsistent provision of law or regulation, shall
8 consider for approval proposals from providers operating under this
9 article and serving rural counties to:
10 (a) Create and operate a long term home health care program which does
11 not provide all the required services specified in regulations of the
12 department, provided that:
13 (i) there is demonstrated need for such program in the service area;
14 and
15 (ii) the applicant to provide such program demonstrates to the commis-
16 sioner's satisfaction that such applicant has made, and continues to
17 make, all appropriate efforts to provide all required services but that
18 the lack of available health personnel within the service area is an
19 obstacle;
20 (b) Establish or operate a certified home health agency or long term
21 home health care program which serves a geographic area less than an
22 entire planning area when:
23 (i) no other provider otherwise serves the entire planning area;
24 (ii) collaborative approaches to the service of citizens in the plan-
25 ning area is appropriate for feasibility and efficiency; and
26 (iii) the department is satisfied that such collaboration will result
27 in accessible and economically-feasible services within the planning
28 area;
29 (c) Qualify for home telehealth reimbursement, or for the provision of
30 telemedicine services, pursuant to this article when all of the condi-
31 tions ordinarily required for such reimbursement or services are unable
32 to be met, provided that the applicant demonstrates, and continues to
33 undertake, best efforts to meet such requirements and that the quality
34 or safety of patient care will not be diminished as a result;
35 (d) Be exempted from the applicability of new regulatory requirements
36 that are identified as burdensome to rural providers by the department
37 in its small business, regulatory impact or rural flexibility analyses
38 filed in accordance with the state administrative procedure act; and
39 (e) Receive approval for such other areas of flexibility as the
40 commissioner deems appropriate to the purposes of this section, includ-
41 ing proposals to enhance the administration, services and quality of
42 care provided by a home care agency or program, provided that such flex-
43 ibility does not compromise the quality and safety of services provided.
44 3. In effectuating the provisions of subparagraph (e) of this section,
45 the commissioner shall convene a temporary workgroup comprised of repre-
46 sentatives of certified home health agencies, long term home health care
47 programs and licensed home care services agencies serving rural coun-
48 ties, as well as rural consumers and rural workforce representatives, to
49 assist in identifying additional areas for flexibility in the depart-
50 ment's rules, regulations and administrative requirements, consistent
51 with the purposes of this section.
52 § 33. This act shall take effect immediately, provided that:
53 1. section ten of this act shall take effect January 1, 2010 or upon
54 the renewal date of contacts regulated pursuant to such section, which-
55 ever is later;
S. 5179 16
1 2. sections nineteen and twenty of this act shall take effect January
2 1, 2010 or upon the renewal date of contracts or policies regulated
3 pursuant to such sections;
4 3. the amendments to section 364-j of the social services law made by
5 sections twenty-five, twenty-six, twenty-seven and twenty-eight of this
6 act shall not affect the repeal of such section and shall be deemed to
7 repeal therewith;
8 4. the amendments to subdivisions 1 and 3 of section 2807-h of the
9 public health law, made by section twenty-nine of this act shall not
10 affect the expiration of such subdivisions and shall be deemed to expire
11 therewith;
12 5. the amendments to subdivision 6 of section 3614 of the public
13 health law made by section thirty of this act shall not affect the expi-
14 ration of such subdivision and shall be deemed to expire therewith; and
15 6. for purposes of section ten of this act, the commissioner of
16 health, and for purposes of sections nineteen and twenty of this act,
17 the superintendent of insurance shall notify the legislative bill draft-
18 ing commission of the renewal date of such contracts or policies in
19 order that the commission may maintain an accurate and timely effective
20 data base of the official text of the laws of the state of New York in
21 furtherance of effectuating the provisions of section 44 of the legisla-
22 tive law and section 70-b of the public officers law.
