STATE OF NEW YORK
________________________________________________________________________
7513
2021-2022 Regular Sessions
IN SENATE
November 8, 2021
___________
Introduced by Sen. MAYER -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
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-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13224-03-1
S. 7513 2
1 ing service is provided, costs associated with the provision of private
2 duty nursing services to medically fragile children and adults, and the
3 need for incentives to improve services and institute economies and such
4 increased rates shall be payable only to those private duty nurses who
5 can demonstrate, to the satisfaction of the department of health, satis-
6 factory training and experience to provide services to such children and
7 adults. Such increased rates shall be determined based on application
8 of the case mix adjustment factor for AIDS home care program services
9 rates as determined pursuant to applicable regulations of the department
10 of health. The commissioner may promulgate regulations to implement the
11 provisions of this subdivision.
12 (b) Private duty nursing services providers which have their rates
13 adjusted pursuant to paragraph (b) of subdivision one of this section
14 and paragraph (a) of this subdivision shall use such funds solely for
15 the purposes of recruitment and retention of private duty nurses or to
16 ensure the delivery of private duty nursing services to medically frag-
17 ile children and adults and are prohibited from using such funds for any
18 other purpose. Funds provided under paragraph (b) of subdivision one of
19 this section and paragraph (a) of this subdivision are not intended to
20 supplant support provided by a local government. Each such provider,
21 with the exception of self-employed private duty nurses, shall submit,
22 at a time and in a manner to be determined by the commissioner of
23 health, a written certification attesting that such funds will be used
24 solely for the purpose of recruitment and retention of private duty
25 nurses or to ensure the delivery of private duty nursing services to
26 medically fragile children and adults. The commissioner of health is
27 authorized to audit each such provider to ensure compliance with the
28 written certification required by this subdivision and shall recoup all
29 funds determined to have been used for purposes other than recruitment
30 and retention of private duty nurses or the delivery of private duty
31 nursing services to medically fragile children and adults. Such recoup-
32 ment shall be in addition to any other penalties provided by law.
33 (c) The commissioner of health shall, subject to the provisions of
34 paragraph (b) of this subdivision, and the provisions of subdivision
35 three of this section, and subject to the availability of federal finan-
36 cial participation, annually increase fees for the fee-for-service
37 reimbursement of private duty nursing services provided to medically
38 fragile children by fee-for-service private duty nursing services
39 providers who enroll and participate in the provider directory pursuant
40 to subdivision three of this section, over a period of three years,
41 commencing October first, two thousand twenty, by one-third annual
42 increments, until such fees for reimbursement equal the final benchmark
43 payment designed to ensure adequate access to the service. In developing
44 such benchmark the commissioner of health may utilize the average two
45 thousand eighteen Medicaid managed care payments for reimbursement of
46 such private duty nursing services. The commissioner may promulgate
47 regulations to implement the provisions of this paragraph.
48 (d) The commissioner of health shall, subject to the provisions of
49 paragraph (b) of this subdivision, and the provisions of subdivision
50 three of this section, and subject to the availability of federal finan-
51 cial participation, increase fees for the fee-for-service reimbursement
52 of private duty nursing services provided to medically fragile adults by
53 fee-for-service private duty nursing services providers who enroll and
54 participate in the provider directory pursuant to subdivision three of
55 this section, no later than sixty days after the chapter of the laws of
56 two thousand twenty-two that amended this subdivision takes effect, so
S. 7513 3
1 such fees for reimbursement equal the benchmark payment designed to
2 ensure adequate access to the service. In developing such benchmark the
3 commissioner of health may utilize the average two thousand twenty Medi-
4 caid managed care payments for reimbursement of such private duty nurs-
5 ing services. The commissioner may promulgate regulations to implement
6 the provisions of this paragraph.
7 3. Provider directory for fee-for-service private duty nursing
8 services provided to medically fragile children and adults. The commis-
9 sioner of health is authorized to establish a directory of qualified
10 providers for the purpose of promoting the availability and ensuring
11 delivery of fee-for-service private duty nursing services to medically
12 fragile children [and individuals transitioning out of such category of
13 care] and adults. Qualified providers enrolling in the directory shall
14 ensure the availability and delivery of and shall provide such services
15 to those individuals as are in need of such services, and shall receive
16 increased reimbursement for such services pursuant to [paragraph (c)]
17 paragraphs (c) and (d) of subdivision two of this section. The directory
18 shall offer enrollment to all private duty nursing services providers to
19 promote and ensure the participation in the directory of all nursing
20 services providers available to serve medically fragile children and
21 adults.
22 § 2. Subdivision 3-a of section 3614 of the public health law, as
23 amended by section 9 of part C of chapter 109 of the laws of 2006, is
24 amended to read as follows:
25 3-a. Medically fragile children and adults. Rates of payment for
26 continuous nursing services for medically fragile children and adults
27 provided by a certified home health agency, a licensed home care
28 services agency or a long term home health care program shall be estab-
29 lished to ensure the availability of such services, whether provided by
30 registered nurses or licensed practical nurses who are employed by or
31 under contract with such agencies or programs, and shall be established
32 at a rate that is at least equal to rates of payment for such services
33 rendered to patients eligible for AIDS home care programs; provided,
34 however, that a certified home health agency, a licensed home care
35 services agency or a long term home health care program that receives
36 such enhanced rates for continuous nursing services for medically frag-
37 ile children and adults shall use such enhanced rates to increase
38 payments to registered nurses and licensed practical nurses who provide
39 such services. In the case of services provided by certified home health
40 agencies and long term home health care programs through contracts with
41 licensed home care services agencies, rate increases received by such
42 certified home health agencies and long term home health care programs
43 pursuant to this subdivision shall be reflected in payments made to the
44 registered nurses or licensed practical nurses employed by such licensed
45 home care services agencies to render services to these children and
46 adults. In establishing rates of payment under this subdivision, the
47 commissioner shall consider the cost neutrality of such rates as related
48 to the cost effectiveness of caring for medically fragile children and
49 adults in a non-institutional setting as compared to an institutional
50 setting. For the purposes of this subdivision, a medically fragile child
51 shall mean a child who is at risk of hospitalization or institutionali-
52 zation, including but not limited to children who are technologically-
53 dependent for life or health-sustaining functions, require complex medi-
54 cation regimen or medical interventions to maintain or to improve their
55 health status or are in need of ongoing assessment or intervention to
56 prevent serious deterioration of their health status or medical compli-
S. 7513 4
1 cations that place their life, health or development at risk, but who
2 are capable of being cared for at home if provided with appropriate home
3 care services, including but not limited to case management services and
4 continuous nursing services. For the purposes of this subdivision, a
5 medically fragile adult shall mean any individual who previously quali-
6 fied as a medically fragile child but no longer meets the age require-
7 ment. The commissioner shall promulgate regulations to implement
8 provisions of this subdivision and may also direct the providers speci-
9 fied in this subdivision to provide such additional information and in
10 such form as the commissioner shall determine is reasonably necessary to
11 implement the provisions of this subdivision.
12 § 3. This act shall take effect immediately.
