STATE OF NEW YORK
________________________________________________________________________
8671
IN ASSEMBLY
January 10, 2022
___________
Introduced by M. of A. STIRPE -- read once and referred to the Committee
on Health
AN ACT to amend the social services law and the public health law, in
relation to providing increased rates for private duty nursing
services that are provided to medically fragile adults
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 2 and 3 of section 367-r of the social
2 services law, subdivision 2 as amended and subdivision 3 as added by
3 section 2 of part PP of chapter 56 of the laws of 2020, are amended to
4 read as follows:
5 2. Medically fragile children and adults. (a) In addition, the
6 commissioner shall further increase rates for private duty nursing
7 services that are provided to medically fragile children to ensure the
8 availability of such services to such children. Furthermore, no later
9 than sixty days after the chapter of the laws of two thousand twenty-two
10 that amended this subdivision takes effect, increased rates shall be
11 extended for private duty nursing services provided to medically fragile
12 adults. In establishing rates of payment under this subdivision, the
13 commissioner shall consider the cost neutrality of such rates as related
14 to the cost effectiveness of caring for medically fragile children and
15 adults in a non-institutional setting as compared to an institutional
16 setting. Medically fragile children shall, for the purposes of this
17 subdivision, have the same meaning as in subdivision three-a of section
18 thirty-six hundred fourteen of the public health law. For purposes of
19 this subdivision, "medically fragile adult" shall be defined as any
20 individual who previously qualified as a medically fragile child but no
21 longer meets the age requirement. Such increased rates for services
22 rendered to such children and adults may take into consideration the
23 elements of cost, geographical differentials in the elements of cost
24 considered, economic factors in the area in which the private duty nurs-
25 ing service is provided, costs associated with the provision of private
26 duty nursing services to medically fragile children and adults, and the
27 need for incentives to improve services and institute economies and such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13224-03-1
A. 8671 2
1 increased rates shall be payable only to those private duty nurses who
2 can demonstrate, to the satisfaction of the department of health, satis-
3 factory training and experience to provide services to such children and
4 adults. Such increased rates shall be determined based on application
5 of the case mix adjustment factor for AIDS home care program services
6 rates as determined pursuant to applicable regulations of the department
7 of health. The commissioner may promulgate regulations to implement the
8 provisions of this subdivision.
9 (b) Private duty nursing services providers which have their rates
10 adjusted pursuant to paragraph (b) of subdivision one of this section
11 and paragraph (a) of this subdivision shall use such funds solely for
12 the purposes of recruitment and retention of private duty nurses or to
13 ensure the delivery of private duty nursing services to medically frag-
14 ile children and adults and are prohibited from using such funds for any
15 other purpose. Funds provided under paragraph (b) of subdivision one of
16 this section and paragraph (a) of this subdivision are not intended to
17 supplant support provided by a local government. Each such provider,
18 with the exception of self-employed private duty nurses, shall submit,
19 at a time and in a manner to be determined by the commissioner of
20 health, a written certification attesting that such funds will be used
21 solely for the purpose of recruitment and retention of private duty
22 nurses or to ensure the delivery of private duty nursing services to
23 medically fragile children and adults. The commissioner of health is
24 authorized to audit each such provider to ensure compliance with the
25 written certification required by this subdivision and shall recoup all
26 funds determined to have been used for purposes other than recruitment
27 and retention of private duty nurses or the delivery of private duty
28 nursing services to medically fragile children and adults. Such recoup-
29 ment shall be in addition to any other penalties provided by law.
30 (c) The commissioner of health shall, subject to the provisions of
31 paragraph (b) of this subdivision, and the provisions of subdivision
32 three of this section, and subject to the availability of federal finan-
33 cial participation, annually increase fees for the fee-for-service
34 reimbursement of private duty nursing services provided to medically
35 fragile children by fee-for-service private duty nursing services
36 providers who enroll and participate in the provider directory pursuant
37 to subdivision three of this section, over a period of three years,
38 commencing October first, two thousand twenty, by one-third annual
39 increments, until such fees for reimbursement equal the final benchmark
40 payment designed to ensure adequate access to the service. In developing
41 such benchmark the commissioner of health may utilize the average two
42 thousand eighteen Medicaid managed care payments for reimbursement of
43 such private duty nursing services. The commissioner may promulgate
44 regulations to implement the provisions of this paragraph.
45 (d) The commissioner of health shall, subject to the provisions of
46 paragraph (b) of this subdivision, and the provisions of subdivision
47 three of this section, and subject to the availability of federal finan-
48 cial participation, increase fees for the fee-for-service reimbursement
49 of private duty nursing services provided to medically fragile adults by
50 fee-for-service private duty nursing services providers who enroll and
51 participate in the provider directory pursuant to subdivision three of
52 this section, no later than sixty days after the chapter of the laws of
53 two thousand twenty-two that amended this subdivision takes effect, so
54 such fees for reimbursement equal the benchmark payment designed to
55 ensure adequate access to the service. In developing such benchmark the
56 commissioner of health may utilize the average two thousand twenty Medi-
A. 8671 3
1 caid managed care payments for reimbursement of such private duty nurs-
2 ing services. The commissioner may promulgate regulations to implement
3 the provisions of this paragraph.
4 3. Provider directory for fee-for-service private duty nursing
5 services provided to medically fragile children and adults. The commis-
6 sioner of health is authorized to establish a directory of qualified
7 providers for the purpose of promoting the availability and ensuring
8 delivery of fee-for-service private duty nursing services to medically
9 fragile children [and individuals transitioning out of such category of
10 care] and adults. Qualified providers enrolling in the directory shall
11 ensure the availability and delivery of and shall provide such services
12 to those individuals as are in need of such services, and shall receive
13 increased reimbursement for such services pursuant to [paragraph (c)]
14 paragraphs (c) and (d) of subdivision two of this section. The directory
15 shall offer enrollment to all private duty nursing services providers to
16 promote and ensure the participation in the directory of all nursing
17 services providers available to serve medically fragile children and
18 adults.
19 § 2. Subdivision 3-a of section 3614 of the public health law, as
20 amended by section 9 of part C of chapter 109 of the laws of 2006, is
21 amended to read as follows:
22 3-a. Medically fragile children and adults. Rates of payment for
23 continuous nursing services for medically fragile children and adults
24 provided by a certified home health agency, a licensed home care
25 services agency or a long term home health care program shall be estab-
26 lished to ensure the availability of such services, whether provided by
27 registered nurses or licensed practical nurses who are employed by or
28 under contract with such agencies or programs, and shall be established
29 at a rate that is at least equal to rates of payment for such services
30 rendered to patients eligible for AIDS home care programs; provided,
31 however, that a certified home health agency, a licensed home care
32 services agency or a long term home health care program that receives
33 such enhanced rates for continuous nursing services for medically frag-
34 ile children and adults shall use such enhanced rates to increase
35 payments to registered nurses and licensed practical nurses who provide
36 such services. In the case of services provided by certified home health
37 agencies and long term home health care programs through contracts with
38 licensed home care services agencies, rate increases received by such
39 certified home health agencies and long term home health care programs
40 pursuant to this subdivision shall be reflected in payments made to the
41 registered nurses or licensed practical nurses employed by such licensed
42 home care services agencies to render services to these children and
43 adults. In establishing rates of payment under this subdivision, the
44 commissioner shall consider the cost neutrality of such rates as related
45 to the cost effectiveness of caring for medically fragile children and
46 adults in a non-institutional setting as compared to an institutional
47 setting. For the purposes of this subdivision, a medically fragile child
48 shall mean a child who is at risk of hospitalization or institutionali-
49 zation, including but not limited to children who are technologically-
50 dependent for life or health-sustaining functions, require complex medi-
51 cation regimen or medical interventions to maintain or to improve their
52 health status or are in need of ongoing assessment or intervention to
53 prevent serious deterioration of their health status or medical compli-
54 cations that place their life, health or development at risk, but who
55 are capable of being cared for at home if provided with appropriate home
56 care services, including but not limited to case management services and
A. 8671 4
1 continuous nursing services. For the purposes of this subdivision, a
2 medically fragile adult shall mean any individual who previously quali-
3 fied as a medically fragile child but no longer meets the age require-
4 ment. The commissioner shall promulgate regulations to implement
5 provisions of this subdivision and may also direct the providers speci-
6 fied in this subdivision to provide such additional information and in
7 such form as the commissioner shall determine is reasonably necessary to
8 implement the provisions of this subdivision.
9 § 3. This act shall take effect immediately.
