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A08522 Summary:

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A08522 Floor Votes:

A08522 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8522--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                      July 13, 2011
                                       ___________
 
        Introduced  by  M. of A. GOTTFRIED, QUART -- Multi-Sponsored by -- M. of
          A. LATIMER -- read once and referred to the  Committee  on  Health  --
          recommitted  to  the  Committee  on Health in accordance with Assembly
          Rule  3,  sec.  2  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 

        AN  ACT  to  amend the public health law and the social services law, in
          relation to long term home health care program enhancement
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Section 3614 of the public health law is amended by adding
     2  a new subdivision 14 to read as follows:
     3    14. (a) Notwithstanding any inconsistent provision  of  law  or  regu-
     4  lation  and  subject  to  the  availability of federal financial partic-
     5  ipation and to the provisions of  paragraph  (g)  of  this  subdivision,
     6  effective  sixty days after the effective date of this subdivision or as
     7  soon as practicable, thereafter, payments  by  government  agencies  for
     8  services  provided by long term home health care programs shall be based

     9  on episodic payments, except for  such  services  provided  to  children
    10  under  eighteen years of age. In establishing such payments, a statewide
    11  base price shall be established, based on the statewide average of Medi-
    12  caid claims paid in the base period, for each sixty day episode of  care
    13  and  adjusted by a regional wage index factor based on the department of
    14  labor's ten labor market regions and  an  individual  patient  case  mix
    15  index;  provided however that the commissioner may set an interval other
    16  than sixty days for such episodic payment if the commissioner determines
    17  that such interval would more effectively  accomplish  the  purposes  of
    18  this  section,  section  thirty-six  hundred sixteen of this article and

    19  subdivision six-a of section three hundred sixty-seven-c of  the  social
    20  services  law.  Such  episodic  payments may be further adjusted for and
    21  shall exclude low utilization cases which may be reimbursed on an alter-
    22  nate basis and to reflect a percentage limitation of the cost for  high-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13221-07-2
        A. 8522--A                          2
 
     1  utilization  cases  that  exceed  outlier  thresholds  of such payments;
     2  provided however that  the  outlier  methodology  shall  be  aligned  to

     3  patient case mix and shall also include a mechanism for adjustment where
     4  cost and utilization not recognized by the outlier payment are necessary
     5  for  the  safe  and  adequate  care of the patient; and provided further
     6  however that, prior to finalization, the outlier  methodology  shall  be
     7  provided  for  review and consideration of its effects on patient access
     8  to care and provider fiscal  stability  by  the  legislature,  represen-
     9  tatives  of  consumers and statewide associations representative of long
    10  term home health care programs.
    11    (b) Initial base year episodic payments shall  be  based  on  Medicaid
    12  paid  claims  for  services  provided  by all long term home health care

    13  programs in the base year two thousand ten,  adjusted  by  annual  trend
    14  factors  using the methodology described in paragraph (c) of subdivision
    15  ten of section twenty-eight hundred seven-c of  this  chapter;  provided
    16  however  that,  as an alternative to the two thousand ten base year, the
    17  commissioner may establish a prospective base for the  episodic  system,
    18  based  on anticipated expenditure needs for rate periods beginning April
    19  first, two thousand twelve, or as soon as  practicable  thereafter,  and
    20  beyond,  if  the commissioner determines that such prospective base more
    21  effectively accomplishes the purposes of this section,  section  thirty-
    22  six  hundred  sixteen  of  this article and subdivision six-a of section

    23  three hundred sixty-seven-c of the social services law.  Subsequent base
    24  year episodic payments shall  be  based  on  Medicaid  paid  claims  for
    25  services provided by all long term home health care programs in a subse-
    26  quent  base  year, as determined by the commissioner, provided, however,
    27  that such base year adjustment shall be made not  less  frequently  than
    28  every  three years. In determining case mix, each patient shall be clas-
    29  sified using a system based on  measures  which  may  include,  but  not
    30  limited to, clinical and functional measures, as reported on the federal
    31  Outcome and Assessment Information Set (OASIS), as may be amended, or as
    32  succeeded  and  reported  on  a  uniform assessment tool approved by the

    33  commissioner, which shall adequately capture the service requirements of
    34  post-acute, rehabilitative, chronically ill and disabled persons in  the
    35  long term home health care program.
    36    (c)  The  commissioner may require agencies to collect and submit data
    37  required to implement this subdivision. The commissioner may  promulgate
    38  regulations to implement the provisions of this subdivision.
    39    (d)  The  commissioner  is  authorized to further adjust the statewide
    40  base year amount, or to otherwise adjust the payment, as may  be  neces-
    41  sary, to reflect actual or projected increases in the cost of delivering
    42  services  in  the  rate  year  which are not reflected in the base year,
    43  including costs associated with: (i) patient populations or services not

    44  included in the base year expenditures, including such additional insti-
    45  tutional or community based services as the commissioner  determines  to
    46  be  necessary  for  the coordinated and efficient care of long term home
    47  health care program recipients in the most integrated  setting  for  the
    48  person;  (ii)  new  governmental  mandates and regulations; (iii) labor;
    49  (iv) disease outbreak; (v) severe  spikes  in  fuel  and  transportation
    50  costs for direct care staff; or (vi) such other variables as the commis-
    51  sioner determines appropriate.
    52    (e)  In addition, to adjustments provided pursuant to paragraph (d) of
    53  this subdivision, the commissioner is authorized to provide a  mechanism

    54  for  agency  specific  adjustments  in  payment as are necessary for the
    55  delivery of services or the quality, cost-effectiveness or operation  of
    56  the  system,  including adjustments for: (i) labor costs for direct care
        A. 8522--A                          3
 
     1  staff in the particular market area served by the agency;  (ii)  capital
     2  costs  necessary  for  the agency's technology infrastructure, including
     3  but not limited to electronic health records, point of  care  technology
     4  and  telehealth  care;  (iii)  health  systems  improvement initiatives,
     5  including care transitions, provider collaboration for improved  patient
     6  outcomes and reduced avoidable hospitalizations, readmissions, emergency

     7  room use and other high cost health care services use; (iv) enhancements
     8  to  the  agency's care management capacity, including the integration of
     9  behavioral health services, specialty  nursing  care,  primary  care  or
    10  other care management enhancements as may be approved by the commission-
    11  er;  and (v) such other purposes as the commissioner may determine to be
    12  necessary.
    13    (f) The episodic system shall provide for a  request  for  anticipated
    14  payment  (RAP),  consistent  with  the RAP provisions under the episodic
    15  payment system applicable to long term home health care  programs  under
    16  the federal Medicare program.
    17    (g)  Prior  to  statewide  implementation  of the episodic system, the

    18  commissioner shall conduct a  pilot  test  of  the  system  by  selected
    19  providers participating on a voluntary basis. The pilot shall assess the
    20  effects  of  the system on patient care and access and on provider oper-
    21  ations and fiscal status. The commissioner, in conjunction  with  repre-
    22  sentatives  of pilot providers, statewide associations representative of
    23  home care providers  and  consumer  representatives,  shall  assess  the
    24  results  of the pilot and report to the legislature, including the iden-
    25  tification of any adjustments necessary for the operation of the episod-
    26  ic system for statewide implementation. Upon the implementation of  such
    27  adjustments,  the  commissioner  shall  proceed to further implement the
    28  episodic system.

    29    (h) The commissioner, in consultation  with  representatives  of  long
    30  term home health care programs and statewide associations representative
    31  of long term home health care programs, shall review the episodic system
    32  after  the  first  full  year of implementation, and, within ninety days
    33  following the completion of such period, shall report  to  the  legisla-
    34  ture, including the identification of and plan for executing adjustments
    35  as may be necessary for the operation of the episodic system.
    36    §  2.  The  opening  paragraph of subdivision 8 of section 3602 of the
    37  public health law, as amended by chapter 622 of the  laws  of  1988,  is
    38  amended to read as follows:
    39    "Long  term home health care program" means a coordinated plan of care

    40  and services provided at home to persons requiring home  and  community-
    41  based  services,  including  to invalid, infirm, or disabled persons who
    42  are medically eligible for placement in a hospital or residential health
    43  care facility for an extended  period  of  time  if  such  program  were
    44  unavailable;  provided,  however,  that  such  program  shall provide or
    45  arrange for, and coordinate such services, including such community  and
    46  institutional services, as the commissioner determines necessary for the
    47  provision  of  a  coordinated, integrated plan of care in the most inte-
    48  grated setting for the person.
    49    § 3. Section 367-c of the social services law is amended by  adding  a
    50  new subdivision 6-a to read as follows:

    51    6-a.   Notwithstanding the provisions of subdivisions one through five
    52  of this section, on and after sixty days after  the  effective  date  of
    53  this  subdivision,  authorization under this title for recipient partic-
    54  ipation in a long term home health care program shall be  in  accordance
    55  with this subdivision.
        A. 8522--A                          4
 
     1    If  a person who requires home and community based services, including
     2  a person who requires care in a nursing facility, desires to  remain  at
     3  home and is deemed by his or her physician able to receive care at home,
     4  such  person  shall have the option to enroll in a long term home health
     5  care  program  in  accordance  with  the provisions of this subdivision,

     6  section thirty-six hundred sixteen of the public health law and applica-
     7  ble regulations of the department.  To  enroll  in  such  program,  such
     8  person  or  such person's representative shall so inform a provider of a
     9  long term home health care program.  The  long  term  home  health  care
    10  program  provider  shall  inform  the  local social services official or
    11  other person or entity designated by the department and shall conduct  a
    12  comprehensive  assessment  of  the  patient's  needs  in accordance with
    13  section thirty-six hundred sixteen of the  public  health  law.  If  the
    14  results  of  the  assessment  indicate  that  the person can receive the
    15  appropriate level of care at home, a representative  of  the  long  term

    16  home  health  care program, with the input of the person or the person's
    17  representative, shall prepare for such person a plan of care subject  to
    18  the  approval  of such person's physician. If the plan of care indicates
    19  that the person can be cared for appropriately at home by the long  term
    20  home health care program, the person may be admitted to the program. The
    21  long  term  home  health  care  program  shall  notify  the local social
    22  services official or alternate entity designated by  the  department  of
    23  the  person's  admission  to the long term home health care program. The
    24  person's eligibility for the long term home health  care  program  along
    25  with  the  plan  of care that has been prepared for such person shall be

    26  subject to audit by the local  social  services  official  or  alternate
    27  entity identified by the department. Such person shall receive a compre-
    28  hensive reassessment at least every one hundred eighty days, pursuant to
    29  section thirty-six hundred sixteen of the public health law, which shall
    30  be the basis for determining the person's continued eligibility and care
    31  under  the  long  term home health care program.  The commissioner shall
    32  submit the appropriate waivers and state plan  amendments  necessary  to
    33  effectuate this subdivision.
    34    §  4.  Subdivisions  1 and 2 of section 3616 of the public health law,
    35  subdivision 1 as amended by chapter 622 of the laws of 1988 and subdivi-
    36  sion 2 as amended by section 33 of part B of chapter 109 of the laws  of

    37  2010, are amended to read as follows:
    38    1.  A  long  term home health care program shall be provided [only] to
    39  those patients who require home and community based services,  including
    40  persons  who are medically eligible for placement in a hospital or resi-
    41  dential health care  facility.  An  AIDS  home  care  program  shall  be
    42  provided  [only]  to  persons  who  require  home  and  community  based
    43  services, including persons who are medically eligible for placement  in
    44  a hospital or residential health care facility and who (a) are diagnosed
    45  by a physician as having acquired immune deficiency syndrome, or (b) are
    46  deemed  by  a  physician,  within  his judgment, to be infected with the
    47  etiologic agent  of  acquired  immune  deficiency  syndrome,  and  whose

    48  illness,  infirmity  or  disability  can be reasonably ascertained to be
    49  associated with such infection. Provision of certified home health agen-
    50  cy services, a long term home health care program or an AIDS  home  care
    51  program paid for by government funds shall be based upon, but not limit-
    52  ed to, a comprehensive assessment that shall include, but not be limited
    53  to, an evaluation of the medical, social and environmental needs of each
    54  applicant for such services or program. This assessment shall also serve
    55  as the basis for the development and provision of an appropriate plan of
    56  care  for the applicant. In cases in which the applicant is a patient in
        A. 8522--A                          5
 
     1  a hospital or residential health care facility, the assessment shall  be
     2  completed  by persons designated by the commissioner, including, but not

     3  limited to, the applicant's physician, the discharge coordinator of  the
     4  hospital or residential health care facility referring the applicant, [a
     5  representative of the local department of social services,] and a repre-
     6  sentative  of the provider of a long term home health care program, AIDS
     7  home care program, or the certified home health agency that will provide
     8  services for the patient.   In cases in which the  applicant  is  not  a
     9  patient  in  a hospital or residential health care facility, the assess-
    10  ment shall be  completed  by  persons  designated  by  the  commissioner
    11  including,  but  not limited to, the applicant's physician[, a represen-
    12  tative of the local department of social services] and a  representative
    13  of  the provider of a long term home health care program, AIDS home care

    14  program or the certified home health agency that will  provide  services
    15  for  the  patient. [The assessment shall be completed prior to or within
    16  thirty days after the provision of services begins. Payment for services
    17  provided prior to the completion of the assessment shall be made only if
    18  it is determined, based upon such assessment, that the recipient  quali-
    19  fies  for  such services.] The commissioner shall prescribe the forms on
    20  which the assessment will be made.
    21    2. Continued provision of a long term home health care  program,  AIDS
    22  home  care  program or certified home health agency services paid for by
    23  government funds shall be based upon a comprehensive assessment  of  the
    24  medical,  social  and  environmental  needs  of  the  recipient  of  the

    25  services. Such assessment shall be performed at least every one  hundred
    26  eighty  days  by  the  provider of a long term home health care program,
    27  AIDS home care program or the certified  home  health  agency  providing
    28  services  for the patient [and the local department of social services],
    29  and shall be reviewed by a physician charged with the responsibility  by
    30  the  commissioner.  The  commissioner shall prescribe the forms on which
    31  the assessment will be made.
    32    § 5. The closing paragraph of subdivision 2 of  section  3610  of  the
    33  public  health  law, as amended by section 65 of part A of chapter 58 of
    34  the laws of 2010, is amended to read as follows:
    35    If the application is approved, the applicant shall be so notified  in
    36  writing.  The  commissioner's  written approval of the application shall

    37  constitute authorization  to  provide  a  long  term  home  health  care
    38  program.  [In  making  his  or her authorization, the commissioner shall
    39  stipulate the maximum number of persons which a provider of a long  term
    40  home  health  care  program  may serve.] If the commissioner proposes to
    41  disapprove the application, he or she  shall  notify  the  applicant  in
    42  writing,  stating  his  or  her  reasons for disapproval, and afford the
    43  applicant an opportunity for a public hearing.
    44    § 6. Subdivision 5 of section  3610  of  the  public  health  law,  as
    45  amended  by  chapter  636  of  the  laws  of 1980, is amended to read as
    46  follows:
    47    5. (a) Notwithstanding the provisions  of  subdivision  four  of  this
    48  section,  the  commissioner  shall suspend, limit or revoke the authori-

    49  zation of a provider of a long  term  home  health  care  program  after
    50  taking into consideration the public need for the program and the avail-
    51  ability  of  other  services  which may serve as alternatives or substi-
    52  tutes, and after finding that  suspending,  limiting,  or  revoking  the
    53  authorization  of  such  provider would be within the public interest in
    54  order to conserve health resources by restricting the level of  services
    55  to those which are actually needed.
        A. 8522--A                          6
 
     1    (b)  [Notwithstanding  the  provisions  of  subdivision  four  of this
     2  section, the commissioner may reduce the maximum number of persons which
     3  a provider of a long term home health  care  program  is  authorized  to
     4  serve  after  finding  that  the  number  stipulated  in such provider's

     5  authorization  is  not  being  effectively  utilized.  In  addition, the
     6  commissioner may increase the number of persons which a  provider  of  a
     7  long  term home health care program is authorized to serve after finding
     8  that the number stipulated in such provider's authorization is  insuffi-
     9  cient  to  serve  persons eligible to receive long term home health care
    10  who reside in the area served by such provider.
    11    (c)] Whenever any finding as described in paragraph (a) of this subdi-
    12  vision is under consideration with respect to any particular provider of
    13  a long term home health care program, the commissioner shall cause to be
    14  published, in a newspaper of general circulation in the geographic  area
    15  of such provider, at least thirty days prior to making such a finding an

    16  [annnouncement]  announcement that such a finding is under consideration
    17  and an address to which interested persons can write to make their views
    18  known. The commissioner shall take all public  comments  into  consider-
    19  ation in making such a finding.
    20    [(d)] (c) The commissioner shall, upon making any finding described in
    21  paragraph (a) of this subdivision with respect to any provider of a long
    22  term  home  health care program, cause such provider and the appropriate
    23  health systems agency to be notified of the finding at least thirty days
    24  in advance of taking the proposed  action.  Upon  receipt  of  any  such
    25  notification and before the expiration of the thirty days or such longer
    26  period  as may be specified in the notice, the provider or the appropri-
    27  ate health systems agency may request a public hearing to be held in the

    28  county in which the provider is located. In no event shall  the  revoca-
    29  tion,  suspension  or  limitation take effect prior to the thirtieth day
    30  after the date of the notice, or prior to the effective  date  specified
    31  in the notice or prior to the date of the hearing decision, whichever is
    32  later.
    33    [(e)]  (d)  Except  as  otherwise  provided by law, all appeals from a
    34  finding of the commissioner made  pursuant  to  paragraph  (a)  of  this
    35  subdivision  shall  be directly to the appellate division of the supreme
    36  court in the third department. Except as otherwise expressly provided by
    37  law, such appeals shall have preference over all issues in all courts.
    38    § 7. This act shall take effect immediately.