N.Y. PBH Law § 3614 — New York Code / Act PBH / Article 36 / Section 3614
Payments for certified home health agency services, long term home health care programs and AIDS home care programs
Status: in_force

§ 3614. Payments for certified home health agency services, long term\nhome health care programs and AIDS home care programs. 1. No government\nagency shall purchase, pay for or make reimbursement or grants-in-aid\nfor services provided by a home care services agency, a provider of a\nlong term home health care program or a provider of an AIDS home care\nprogram unless, at the time the services were provided, the home care\nservices agency possessed a valid certificate of approval or the\nprovider of a long term home health care program or AIDS home care\nprogram had been authorized by the commissioner to provide such program.\nHowever, contractual arrangements between a certified home health\nagency, provider of a long term home health care program, provider of an\nAIDS home care program, or government agency and any home care services\nagency shall not be prohibited, provided that the certified home health\nagency, provider of a long term home health care program, provider of an\nAIDS home care program, or government agency maintains full\nresponsibility for the plan of treatment and the care rendered.\n  2. Payments for certified home health agency services or services\nprovided by long term home health care programs or AIDS home care\nprograms made by government agencies shall be at rates approved by the\nstate director of the budget. No provider of a long term home health\ncare program or AIDS home care program shall establish charges for such\nprogram in excess of those established pursuant to the provisions of\nthis section and rules and regulations adopted pursuant to section\nthirty-six hundred twelve of this article or subchapter XVIII of the\nfederal Social Security Act (Medicare).\n  2-a. Notwithstanding any contrary law, rule or regulation, for rate\nperiods on and after April first, two thousand eleven, Medicaid rates of\npayments for services provided by certified home health agencies, by\nlong term home health care programs or by an AIDS home care program\nshall not reflect a separate payment for home care nursing services\nprovided to patients diagnosed with Acquired Immune Deficiency Syndrome\n(AIDS).\n  3. Prior to the approval of such rates, the commissioner shall\ndetermine and certify to the state director of the budget that the\nproposed rate schedules for payments for certified home health agency\nservices or services provided by long term home health care programs or\nAIDS home care programs are reasonably related to the costs of the\nefficient production of such services. In making such certification, the\ncommissioner shall take into consideration the elements of cost,\ngeographical differentials in the elements of cost considered, economic\nfactors in the area in which the certified home health agency, provider\nof a long term home health care program or provider of an AIDS home care\nprogram is located, costs of certified home health agencies, providers\nof long term home health care programs or providers of AIDS home care\nprograms of comparable size, and the need for incentives to improve\nservices and institute economies.\n  3-a. Medically fragile children and medically fragile adults. Rates of\npayment for continuous nursing services for medically fragile children\nand medically fragile adults provided by a certified home health agency,\na licensed home care services agency or a long term home health care\nprogram shall be established to ensure the availability of such\nservices, whether provided by registered nurses or licensed practical\nnurses who are employed by or under contract with such agencies or\nprograms, and shall be established at a rate that is at least equal to\nrates of payment for such services rendered to patients eligible for\nAIDS home care programs; provided, however, that a certified home health\nagency, a licensed home care services agency or a long term home health\ncare program that receives such enhanced rates for continuous nursing\nservices for medically fragile children and medically fragile adults\nshall use such enhanced rates to increase payments to registered nurses\nand licensed practical nurses who provide such services. In the case of\nservices provided by certified home health agencies and long term home\nhealth care programs through contracts with licensed home care services\nagencies, rate increases received by such certified home health agencies\nand long term home health care programs pursuant to this subdivision\nshall be reflected in payments made to the registered nurses or licensed\npractical nurses employed by such licensed home care services agencies\nto render services to these children and medically fragile adults. In\nestablishing rates of payment under this subdivision, the commissioner\nshall consider the cost neutrality of such rates as related to the cost\neffectiveness of caring for medically fragile children and medically\nfragile adults in a non-institutional setting as compared to an\ninstitutional setting. For the purposes of this subdivision, a medically\nfragile child shall mean a child who is at risk of hospitalization or\ninstitutionalization, including but not limited to children who are\ntechnologically-dependent for life or health-sustaining functions,\nrequire complex medication regimen or medical interventions to maintain\nor to improve their health status or are in need of ongoing assessment\nor intervention to prevent serious deterioration of their health status\nor medical complications that place their life, health or development at\nrisk, but who are capable of being cared for at home if provided with\nappropriate home care services, including but not limited to case\nmanagement services and continuous nursing services. The commissioner\nshall promulgate regulations to implement provisions of this subdivision\nand may also direct the providers specified in this subdivision to\nprovide such additional information and in such form as the commissioner\nshall determine is reasonably necessary to implement the provisions of\nthis subdivision.\n  3-c. Home telehealth. (a) Demonstration rates of payment or fees shall\nbe established for telehealth services provided by a certified home\nhealth agency, a long term home health care program or AIDS home care\nprogram, or for telehealth services by a licensed home care services\nagency under contract with such an agency or program, in order to ensure\nthe availability of technology-based patient monitoring, communication\nand health management. Reimbursement for telehealth services provided\npursuant to this section shall be provided only in connection with\nFederal Food and Drug Administration-approved and interoperable devices,\nand incorporated as part of the patient's plan of care. The commissioner\nshall seek federal financial participation with regard to this\ndemonstration initiative.\n  (b) The purposes of such services shall be to assist in the effective\nmonitoring and management of patients whose medical, functional and/or\nenvironmental needs can be appropriately and cost-effectively met at\nhome through the application of telehealth intervention. Reimbursement\nprovided pursuant to this subdivision shall be for services to patients\nwith conditions or clinical circumstances associated with the need for\nfrequent monitoring, and/or the need for frequent physician, skilled\nnursing or acute care services, and where the provision of telehealth\nservices can appropriately reduce the need for on-site or in-office\nvisits or acute or long term care facility admissions. Such conditions\nand clinical circumstances shall include, but not be limited to,\ncongestive heart failure, diabetes, chronic pulmonary obstructive\ndisease, wound care, polypharmacy, mental or behavioral problems\nlimiting self-management, and technology-dependent care such as\ncontinuous oxygen, ventilator care, total parenteral nutrition or\nenteral feeding.\n  (c) Demonstration rates or fees established by the commissioner and\napproved by the director of the budget, for such telehealth services\nshall reflect telehealth services costs on a monthly basis in order to\naccount for daily variation in the intensity and complexity of patients'\ntelehealth service needs; provided that such demonstration rates shall\nfurther reflect the cost of the daily operation and provision of such\nservices, which costs shall include the following functions undertaken\nby the participating certified home health agency, long term home health\ncare program, AIDS home care program or licensed home care services\nagency:\n  (i) Monitoring of patient vital signs;\n  (ii) Patient education;\n  (iii) Medication management;\n  (iv) Equipment maintenance;\n  (v) Review of patient trends and/or other changes in patient condition\nnecessitating professional intervention; and\n  (vi) Such other activities as the commissioner may deem necessary and\nappropriate to this section.\n  (d) The commissioner shall take such additional steps as may be\nreasonably necessary to implement the provision of this subdivision;\nprovided however that the commissioner shall establish initial\ndemonstration rates or fees for telehealth services as provided for in\nthis subdivision by no later than October first, two thousand seven; and\nprovided, further, however, that the commissioner shall seek the input\nof representatives from participating providers and other interested\nparties in the development of such rates or fees and any applicable\nrequirements established pursuant to this subdivision.\n  (e) The commissioner shall, within monies appropriated therefor,\nestablish a rural home telehealth delivery demonstration study program\nin counties having a population of not less than one hundred thirty\nthousand and not more than one hundred forty thousand, according to the\ntwo thousand ten decennial federal census. The commissioner shall direct\na home health organization serving in such county to study patients\nreceiving telehealth services, pursuant to this subdivision, who have\nbeen diagnosed with congestive heart failure, diabetes and/or chronic\npulmonary obstructive disease, and whose medical, functional and/or\nenvironmental needs are appropriately met at home through the\napplication of telehealth services interventions. Such a study shall\ndetermine the cost of providing telehealth services, the quality of care\nprovided through telehealth services and the outcomes of patients\nreceiving such telehealth services. The commissioner shall reimburse the\nhome health organization for conducting the study with amounts\nappropriated under this subdivision. The home health organization shall\nevaluate the findings of the study and report to the governor, the\ntemporary president of the senate, the speaker of the assembly, the\ncommissioner, and the chair of the legislative commission on rural\nresources on its findings of providing telehealth services for each\ncondition, so as to provide the cost benchmarks with and without\ntelehealth care, as well as providing cost benefit measurements in terms\nof the quality benefit outcomes for each of the conditions addressed via\ntelehealth.\n  4. The commissioner shall notify each certified home health agency,\nlong term home health care program and AIDS home care program of its\napproved rates of payment which shall be used in reimbursing for\nservices provided to persons eligible for payments made by state\ngovernmental agencies at least thirty days prior to the beginning of an\nestablished rate period for which the rate is to become effective. Such\nnotification shall be made only after approval of rate schedules by the\nstate director of the budget.\n  * 5. (a) During the period July first, nineteen hundred ninety through\nDecember thirty-first, nineteen hundred ninety, the period January\nfirst, nineteen hundred ninety-one through December thirty-first,\nnineteen hundred ninety-one and for each calendar year period commencing\non January first thereafter, rates of payment by governmental agencies\nestablished in accordance with subdivision three of this section\napplicable for services provided by certified home health agencies to\nindividuals eligible for medical assistance pursuant to title eleven of\narticle five of the social services law for certified home health\nagencies which can demonstrate, on forms provided by the commissioner,\nlosses from a disproportionate share of bad debt and charity care during\nthe base year period as used in determining such rates may include an\nallowance determined in accordance with this subdivision to reflect the\nneeds of the certified home health agency for the financing of losses\nresulting from bad debt and the cost of charity care. Losses resulting\nfrom bad debt and the delivery of charity care shall be determined by\nthe commissioner considering, but not limited to, such factors as the\nlosses resulting from bad debt and the costs of charity care provided by\nthe certified home health agency and the availability of other financial\nsupport, including state local assistance public health aid, to meet the\nlosses resulting from bad debt and the costs of charity care of the\ncertified home health agency. The bad debt and charity care allowance\nfor a certified home health agency for a rate period shall be determined\nby the commissioner in accordance with rules and regulations adopted by\nthe state hospital review and planning council and approved by the\ncommissioner, and shall be consistent with the purposes for which such\nallowances are authorized for general hospitals pursuant to the\nprovisions of article twenty-eight of this chapter and rules and\nregulations promulgated by the commissioner. For purposes of\ndistribution of bad debt and charity care allowances to eligible\ncertified home health agencies, the commissioner, in accordance with\nrules and regulations adopted by the state hospital review and planning\ncouncil and approved by the commissioner, may limit application of a bad\ndebt and charity care allowance to a particular home care services unit\nor units of service, such as nursing service. A certified home health\nagency applying for a bad debt and charity care allowance pursuant to\nthis subdivision shall provide assurances satisfactory to the\ncommissioner that it shall undertake reasonable efforts to maintain\nfinancial support from community and public funding sources and\nreasonable efforts to collect payments for services from third party\ninsurance payors, governmental payors and self-paying patients. To be\neligible for an allowance pursuant to this subdivision, a certified home\nhealth agency shall: have professional assistance available on a seven\nday per week, twenty-four hour per day basis to all registered clients;\ndemonstrate compliance with minimum charity care certification\nobligation levels established pursuant to rules and regulations adopted\nby the state hospital review and planning council and approved by the\ncommissioner; and provide to the commissioner and maintain a community\nservice plan which outlines the agency's organizational mission and\ncommitment to meet the home care needs of the community, in accordance\nwith paragraph (h) of this subdivision.\n  (b) The total amount of funds to be allocated and distributed for bad\ndebt and charity care allowances to eligible certified home health\nagencies for a rate period in accordance with this subdivision shall be\nlimited to an annual aggregate amount of six million two hundred fifty\nthousand dollars; provided, however, that the amount of funds allocated\nfor distribution to eligible publicly sponsored certified home health\nagencies for bad debt and charity care allowances shall not exceed\nthirty-five percent of total available funds for all eligible certified\nhome health agencies for bad debt and charity care allowances. In\nestablishing an apportionment of available funds to publicly sponsored\ncertified home health agencies in accordance with this paragraph, the\ncommissioner shall promulgate regulations which may include, but not be\nlimited to, such factors as the ratio of public to nonpublic base year\nperiod bad debt and charity care provided by eligible certified home\nhealth agencies and differences in costs for delivering such services.\nCertified home health agencies provided by general hospitals shall not\nbe eligible for any portion of the allocation pursuant to this paragraph\nfor the period of July first, nineteen hundred ninety through December\nthirty-first, nineteen hundred ninety-four, or for such longer period if\nextended by law, based on the projected availability of an equitable\nlevel of bad debt and charity care coverage for such agencies provided\npursuant to chapter two of the laws of nineteen hundred eighty-eight and\nany future amendments thereto.\n  (c) No certified home health agency may receive a bad debt and charity\ncare allowance in accordance with this subdivision in an amount which\nexceeds its need for the financing of losses associated with the\ndelivery of bad debt and charity care.\n  (d) A nominal payment amount for the financing of losses associated\nwith the delivery of bad debt and charity care will be established for\neach eligible certified home health agency. The nominal payment amount\nshall be calculated as the sum of the dollars attributable to the\napplication of an incrementally increasing nominal coverage percentage\nof base year period losses associated with the delivery of bad debt and\ncharity care for percentage increases in the relationship between base\nyear period losses associated with the delivery of bad debt and charity\ncare and base year period total operating costs according to the\nfollowing scale:\n% of bad debt and charity care losses to       nominal percentage of\n        total operating cost                       loss coverage\n            Up to 3%                                    50%\n              3 - 6%                                    75%\n                  6% +                                 100%\nIf  the  sum  of  the nominal payment amounts for all eligible voluntary\nnon-profit and private proprietary certified home health agencies or for\nall eligible public certified home health  agencies  is  less  than  the\namount  allocated  for  bad debt and charity care allowances pursuant to\nparagraph (b)  of  this  subdivision  for  such  certified  home  health\nagencies  respectively,  the  nominal  coverage percentages of base year\nperiod losses associated with the delivery of bad debt and charity  care\npursuant  to  this  scale  may be increased to not more than one hundred\npercent for voluntary non-profit and private proprietary certified  home\nhealth  agencies  or  for  public  certified  home  health  agencies  in\naccordance with rules and regulations  adopted  by  the  state  hospital\nreview and planning council and approved by the commissioner.\n  (e) The bad debt and charity care allowance for each eligible\nvoluntary non-profit and private proprietary certified home health\nagency shall be based on the dollar value of the result of the ratio of\ntotal funds allocated for bad debt and charity care allowances for\ncertified home health agencies pursuant to paragraph (b) of this\nsubdivision to the total statewide nominal payment amounts for all\neligible certified home health agencies determined in accordance with\nparagraph (d) of this subdivision applied to the nominal payment amount\nfor each such certified home health agency.\n  (f) The bad debt and charity care allowance for each eligible public\ncertified home health agency shall be based on the dollar value of the\nresult of the ratio of total funds allocated for bad debt and charity\ncare allowances for public certified home health agencies pursuant to\nparagraph (b) of this subdivision to the total statewide nominal payment\namounts for all eligible public certified home health agencies\ndetermined in accordance with paragraph (d) of this subdivision applied\nto the nominal payment amount for each such certified home health\nagency.\n  (g) Certified home health agencies shall furnish to the department\nsuch reports and information as may be required by the commissioner to\nassess the cost, quality, access to, effectiveness and efficiency of bad\ndebt and charity care provided. The state hospital review and planning\ncouncil shall adopt rules and regulations, subject to the approval of\nthe commissioner, to establish uniform reporting and accounting\nprinciples designed to enable certified home health agencies to fairly\nand accurately determine and report the costs of bad debt and charity\ncare. In order to be eligible for an allowance pursuant to this\nsubdivision, a certified home health agency must be in compliance with\nbad debt and charity care reporting requirements.\n  (h) Community service plans. (i) The governing body of a certified\nhome health agency shall issue an organizational mission statement\nidentifying at a minimum the populations and communities served by the\nagency and the agency's commitment to meeting the home care needs of the\ncommunity. The commissioner shall take into consideration the\nlimitations of agency size and resources, and allow flexibility in\ncomplying with the provisions of this section.\n  (ii) The governing body of the certified home health agency shall at\nleast once every three years:\n  (A) review and amend as necessary the agency's mission statement;\n  (B) solicit the views of the communities served by the agency on such\nissues as the agency's performance and service priorities;\n  (C) demonstrate the agency's operational and financial commitment to\nmeeting community home care needs, to provide charity care service and\nto improve access to home care services by the underserved; and\n  (D) prepare and make available to the public a statement showing the\nprovision of free, reduced charge and/or other services of a charitable\nor community nature.\n  (iii) The governing body of the certified home health agency shall\nannually make available to the public a review of the agency's\nperformance in meeting the home care needs of the community, providing\ncharity care services, and improving access to home care services by the\nunderserved.\n  (iv) The governing body of the certified home health agency shall file\nwith the commissioner its mission statement, its annual performance\nreview, and at least every three years a report detailing amendments to\nthe statement reflecting changes in the agency's operational and\nfinancial commitment to meeting the home care needs of the community,\nproviding charity care services, and improving access to home care\nservices by the underserved.\n  (v) The commissioner shall promulgate regulations establishing a\nrevised percentage for the charity care requirement.\n  (i) This subdivision shall be effective if, and as long as, federal\nfinancial participation is available for expenditures made for\nbeneficiaries eligible for medical assistance under title XIX of the\nfederal social security act based upon the allowances determined in\naccordance with this subdivision.\n  * NB Expires June 30, 2029\n  6. (a) The commissioner shall, subject to the approval of the state\ndirector of the budget, establish capitated rates of payment for\nservices provided by assisted living programs as defined by paragraph\n(a) of subdivision one of section four hundred sixty-one-l of the social\nservices law.  Such rates of payment shall be related to costs incurred\nby residential health care facilities. The rates shall reflect the wage\nequalization factor established by the commissioner for residential\nhealth care facilities in the region in which the assisted living\nprogram is provided and real property capital construction costs\nassociated with the construction of a free-standing assisted living\nprogram such rate shall include a payment equal to the cost of interest\nowed and depreciation costs of such construction. The rates shall also\nreflect the efficient provision of a quality and quantity of services to\npatients in such residential health care facilities, with needs\ncomparable to the needs of residents served in such assisted living\nprograms. Such rates of payment shall be equal to fifty percent of the\namounts which otherwise would have been expended, based upon the mean\nprices for the first of July, nineteen hundred ninety-two (utilizing\nnineteen hundred eighty-three costs) for freestanding, low intensity\nresidential health care facilities with less than three hundred beds,\nand for years subsequent to nineteen hundred ninety-two, adjusted for\ninflation in accordance with the provisions of subdivision ten of\nsection twenty-eight hundred seven-c of this chapter, to provide the\nappropriate level of care for such residents in residential health care\nfacilities in the applicable wage equalization factor regions plus an\namount equal to capital construction costs associated with the\nconstruction of an assisted living program facility as provided for in\nthis subdivision.  The commissioner shall also promulgate regulations,\nand may promulgate emergency regulations, to provide for reimbursement\nof the cost of preadmission assessments conducted directly by assisted\nliving programs.\n  (b) For purposes of this subdivision, real property capital\nconstruction costs shall only be included in rates of payment for\nassisted living programs if: the facility houses exclusively assisted\nliving program beds authorized pursuant to paragraph (j) of subdivision\nthree of section four hundred sixty-one-l of the social services law or\n(i) the facility is operated by a not-for-profit corporation; (ii) the\nfacility commenced operation after nineteen hundred ninety-eight and at\nleast ninety-five percent of the certified approved beds are provided to\nresidents who are subject to the assisted living program; and (iii) the\nassisted living program is in a county with a population of no less than\ntwo hundred eighty thousand persons. The methodology used to calculate\nthe rate for such capital construction costs shall be the same\nmethodology used to calculate the capital construction costs at\nresidential health care facilities for such costs, provided that the\ncommissioner may adopt rules and regulations which establish a cap on\nreal property capital construction costs for those facilities that house\nexclusively assisted living program beds authorized pursuant to\nparagraph (j) of subdivision three of section four hundred sixty-one-l\nof the social services law.\n  (c) The department shall conduct a study of the use of resident data\ncollected from a uniform assessment tool identified by the commissioner\nwith respect to its effectiveness in evaluation and adjusting rates of\npayment for assisted living programs. On or before July thirty-first,\ntwo thousand eleven, the commissioner shall provide the governor, the\nspeaker of the assembly, the temporary president of the senate, and the\nchairpersons of the assembly and senate health committees with a report\nsetting forth the conclusions of such study.\n  7. * Notwithstanding any inconsistent provision of law or regulation,\nfor purposes of establishing rates of payment by governmental agencies\nfor certified home health agencies for the period April first, nineteen\nhundred ninety-five through December thirty-first, nineteen hundred\nninety-five and for rate periods beginning on or after January first,\nnineteen hundred ninety-six, the reimbursable base year administrative\nand general costs of a provider of services shall not exceed the\nstatewide average of total reimbursable base year administrative and\ngeneral costs of such providers of services. The amount of such\nreduction in certified home health agency rates of payments made during\nthe period April first, nineteen hundred ninety-five through March\nthirty-first, nineteen hundred ninety-six shall be adjusted in the\nnineteen hundred ninety-six rate period on a pro-rata basis, if it is\ndetermined upon post-audit review by June fifteenth, nineteen hundred\nninety-six and reconciliation that the savings for the state share,\nexcluding the federal and local government shares, of medical assistance\npayments pursuant to title eleven of article five of the social services\nlaw based on the limitation of such payment pursuant to this subdivision\nis in excess of one million five hundred thousand dollars or is less\nthan one million five hundred thousand dollars for payments made on or\nbefore March thirty-first, nineteen hundred ninety-six to reflect the\namount by which such savings are in excess of or lower than one million\nfive hundred thousand dollars. For rate periods on and after January\nfirst, two thousand five through December thirty-first, two thousand\nsix, there shall be no such reconciliation of the amount of savings in\nexcess of or lower than one million five hundred thousand dollars.\n  * NB Effective until March 31, 2029\n  * Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, for purposes of establishing rates of payment by\ngovernmental agencies for certified home health agencies and long term\nhome health care programs for rate period beginning on or after January\nfirst, nineteen hundred ninety-five, the department of health may not by\nrule or regulation limit the reimbursable base year administrative and\ngeneral costs of a provider of services to a percentage which is other\nthan thirty percent of total reimbursable base year operational costs of\nsuch provider of services.\n  * NB Effective March 31, 2029\n  No such limit shall be applied to a provider of services reimbursed on\nan initial budget basis, or a new provider, excluding changes in\nownership or changes in name, who begins operations in the year prior to\nthe year which is used as a base year in determining rates of payment.\n  For the purposes of this subdivision, reimbursable base year\noperational costs shall mean those base year operational costs remaining\nafter application of all other efficiency standards, including, but not\nlimited to, peer group cost ceilings or guidelines.\n  The limitation on reimbursement for provider administrative and\ngeneral expenses provided by this subdivision shall be expressed as a\npercentage reduction for the rate promulgated by the commissioner to\neach certified home health agency and long term home health care program\nprovider.\n  7-a. Notwithstanding any inconsistent provision of law or regulation,\nfor the purposes of establishing rates of payment by governmental\nagencies for long term home health care programs for the period April\nfirst, two thousand five, through December thirty-first, two thousand\nfive, and for the period January first, two thousand six through March\nthirty-first, two thousand seven, and on and after April first, two\nthousand seven through March thirty-first, two thousand nine, and on and\nafter April first, two thousand nine through March thirty-first, two\nthousand eleven, and on and after April first, two thousand eleven\nthrough March thirty-first, two thousand thirteen and on and after April\nfirst, two thousand thirteen through March thirty-first, two thousand\nfifteen, and on and after April 1st, two thousand fifteen through March\nthirty-first, two thousand seventeen the reimbursable base year\nadministrative and general costs of a provider of services shall not\nexceed the statewide average of total reimbursable base year\nadministrative and general costs of such providers of services.\n  No such limit shall be applied to a provider of services reimbursed on\nan initial budget basis, or a new provider, excluding changes in\nownership or changes in name, who begins operations in the year prior to\nthe year which is used as a base year in determining rates of payment.\n  For the purposes of this subdivision, reimbursable base year\noperational costs shall mean those base year operational costs remaining\nafter application of all other efficiency standards, including, but not\nlimited to, cost guidelines.\n  The limitation on reimbursement for provider administrative and\ngeneral expenses provided by this subdivision shall be expressed as a\npercentage reduction for the rate promulgated by the commissioner to\neach long term home health care program provider.\n  8. (a) Notwithstanding any inconsistent provision of law, rule or\nregulation and subject to the provisions of paragraph (b) of this\nsubdivision and to the availability of federal financial participation,\nthe commissioner shall adjust medical assistance rates of payment for\nservices provided by certified home health agencies for such services\nprovided to children under eighteen years of age and for services\nprovided to a special needs population of medically complex and fragile\nchildren, adolescents and young disabled adults by a CHHA operating\nunder a pilot program approved by the department, long term home health\ncare programs and AIDS home care programs in accordance with this\nparagraph and paragraph (b) of this subdivision for purposes of\nimproving recruitment and retention of non-supervisory home care\nservices workers or any worker with direct patient care responsibility\nin the following amounts for services provided on and after December\nfirst, two thousand two.\n  (i) rates of payment by governmental agencies for certified home\nhealth agency services for such services provided to children under\neighteen years of age and for services provided to a special needs\npopulation of medically complex and fragile children, adolescents and\nyoung disabled adults by a CHHA operating under a pilot program approved\nby the department (including services provided through contracts with\nlicensed home care services agencies) shall be increased by three\npercent;\n  (ii) rates of payment by governmental agencies for long term home\nhealth care program services (including services provided through\ncontracts with licensed home care services agencies) shall be increased\nby three percent; and\n  (iii) rates of payment by governmental agencies for AIDS home care\nprograms (including services provided through contracts with licensed\nhome care services agencies) shall be increased by three percent.\n  (b) (i) Providers which have their rates adjusted pursuant to this\nsubdivision shall use such funds solely for the purposes of recruitment\nand retention of non-supervisory home care services workers or any\nworker with direct patient care responsibility. Such purposes shall\ninclude the recruitment and retention of non-supervisory home care\nservices workers or any worker with direct patient care responsibility\nemployed in licensed home care services agencies under contract with\nsuch providers. Providers are prohibited from using such funds for any\nother purpose.\n  (ii) Each such provider shall submit, at a time and in a manner\ndetermined by the commissioner, a written certification attesting that\nsuch funds will be used solely for the purpose of recruitment and\nretention of non-supervisory home care services workers or any worker\nwith direct patient care responsibility. The commissioner is authorized\nto audit each such provider to ensure compliance with the written\ncertification required by this subdivision and shall recoup any funds\ndetermined to have been used for purposes other than recruitment and\nretention of non-supervisory home care services workers or any worker\nwith direct patient care responsibility. Such recoupment shall be in\naddition to any other penalties provided by law.\n  (iii) In the case of services provided by such providers through\ncontracts with licensed home care services agencies, rate increases\nreceived by such providers pursuant to this subdivision shall be\nreflected, consistent with the purposes of subparagraph (i) of this\nparagraph, in either the fees paid or benefits or other supports\nprovided to non-supervisory home care services workers or any worker\nwith direct patient care responsibility of such contracted licensed home\ncare services agencies and such fees, benefits or other supports shall\nbe proportionate to the contracted volume of services attributable to\neach contracted agency. Such agencies shall submit to providers with\nwhich they contract written certifications attesting that such funds\nwill be used solely for the purposes of recruitment and retention of\nnon-supervisory home care services workers or any worker with direct\npatient care responsibility and shall maintain in their files\nexpenditure plans specifying how such funds will be used for such\npurposes. The commissioner is authorized to audit such agencies to\nensure compliance with such certifications and expenditure plans and\nshall recoup any funds determined to have been used for purposes other\nthan those set forth in this subdivision. Such recoupment will be in\naddition to any other penalties provided by law.\n  (iv) Funds under this subdivision are not intended to supplant support\nprovided by local government.\n  9. Notwithstanding any law to the contrary, the commissioner shall,\nsubject to the availability of federal financial participation, adjust\nmedical assistance rates of payment for certified home health agencies\nfor such services provided to children under eighteen years of age and\nfor services provided to a special needs population of medically complex\nand fragile children, adolescents and young disabled adults by a CHHA\noperating under a pilot program approved by the department, long term\nhome health care programs, AIDS home care programs established pursuant\nto this article, hospice programs established under article forty of\nthis chapter and for managed long term care plans and approved managed\nlong term care operating demonstrations as defined in section forty-four\nhundred three-f of this chapter. Such adjustments shall be for purposes\nof improving recruitment, training and retention of home health aides or\nother personnel with direct patient care responsibility in the following\naggregate amounts for the following periods:\n  (a) for the period June first, two thousand six through December\nthirty-first, two thousand six, fifty million dollars;\n  (b) for the period January first, two thousand seven through June\nthirtieth, two thousand seven, fifty million dollars;\n  (c) for the period July first, two thousand seven through March\nthirty-first, two thousand eight, up to one hundred million dollars;\n  (d) for the period April first, two thousand eight through March\nthirty-first, two thousand nine, up to one hundred million dollars;\n  (e) for the period April first, two thousand nine through March\nthirty-first, two thousand ten, up to one hundred million dollars;\n  (f) for the period April first, two thousand ten through March\nthirty-first, two thousand eleven, up to one hundred million dollars;\n  (g) for the period April first, two thousand eleven through March\nthirty-first, two thousand twelve, up to one hundred million dollars;\n  (h) for the period April first, two thousand twelve through March\nthirty-first, two thousand thirteen, up to one hundred million dollars;\n  (i) for the period April first, two thousand thirteen through March\nthirty-first, two thousand fourteen, up to one hundred million dollars;\n  (j) for the period April first, two thousand fourteen through March\nthirty-first, two thousand fifteen, up to one hundred million dollars;\n  (k) for the period April first, two thousand fifteen through March\nthirty-first, two thousand sixteen, up to one hundred million dollars;\n  (l) for the period April first, two thousand sixteen through March\nthirty-first, two thousand seventeen, up to one hundred million dollars;\n  (m) for the period April first, two thousand seventeen through March\nthirty-first, two thousand eighteen, up to one hundred million dollars;\n  (n) for the period April first, two thousand eighteen through March\nthirty-first, two thousand nineteen, up to one hundred million dollars;\n  (o) for the period April first, two thousand nineteen through March\nthirty-first, two thousand twenty, up to one hundred million dollars;\n  (p) for the period April first, two thousand twenty through March\nthirty-first, two thousand twenty-one, up to one hundred million\ndollars;\n  (q) for the period April first, two thousand twenty-one through March\nthirty-first, two thousand twenty-two, up to one hundred million\ndollars;\n  (r) for the period April first, two thousand twenty-two through March\nthirty-first, two thousand twenty-three, up to one hundred million\ndollars;\n  (s) for the period April first, two thousand twenty-three through\nMarch thirty-first, two thousand twenty-four, up to one hundred million\ndollars;\n  (t) for the period April first, two thousand twenty-four through March\nthirty-first, two thousand twenty-five, up to one hundred million\ndollars;\n  (u) for the period April first, two thousand twenty-five through March\nthirty-first, two thousand twenty-six, up to one hundred million\ndollars;\n  (v) for the period April first, two thousand twenty-six through March\nthirty-first, two thousand twenty-seven, up to one hundred million\ndollars;\n  (w) for the period April first, two thousand twenty-seven through\nMarch thirty-first, two thousand twenty-eight, up to one hundred million\ndollars;\n  (x) for the period April first, two thousand twenty-eight through\nMarch thirty-first, two thousand twenty-nine, up to one hundred million\ndollars.\n  10. (a) Such adjustments to rates of payments shall be allocated\nproportionally based on each certified home health agency, long term\nhome health care program, AIDS home care and hospice program's home\nhealth aide or other direct care services total annual hours of service\nprovided to medicaid patients, as reported in each such agency's most\nrecently available cost report as submitted to the department or for the\npurpose of the managed long term care program a suitable proxy developed\nby the department in consultation with the interested parties. Payments\nmade pursuant to this section shall not be subject to subsequent\nadjustment or reconciliation; provided that such adjustments to rates of\npayments to certified home health agencies shall only be for that\nportion of services provided to children under eighteen years of age and\nfor services provided to a special needs population of medically complex\nand fragile children, adolescents and young disabled adults by a CHHA\noperating under a pilot program approved by the department.\n  (b) Programs which have their rates adjusted pursuant to this\nsubdivision shall use such funds solely for the purposes of recruitment,\ntraining and retention of non-supervisory home care services workers or\nother personnel with direct patient care responsibility. Such purpose\nshall include the recruitment, training and retention of non-supervisory\nhome care services workers or any worker with direct patient care\nresponsibility employed in licensed home care services agencies under\ncontract with such agencies. Such agencies are prohibited from using\nsuch fund for any other purpose. For purposes of the long term home\nhealth care program, such payment shall be treated as supplemental\npayments and not effect any current cost cap requirement. Each such\nagency shall submit, at a time and in a manner determined by the\ncommissioner, a written certification attesting that such funds will be\nused solely for the purpose of recruitment, training and retention of\nnon-supervisory home health aides or any personnel with direct patient\ncare responsibility. The commissioner is authorized to audit each such\nagency or program to ensure compliance with the written certification\nrequired by this subdivision and shall recoup any funds determined to\nhave been used for purposes other than recruitment and retention of\nnon-supervisory home health aides or other personnel with direct patient\ncare responsibility. Such recoupment shall be in addition to any other\npenalties provided by law.\n  (c) In the case of services provided by such agencies or programs\nthrough contracts with licensed home care services agencies, rate\nincreases received by such agencies or programs pursuant to this\nsubdivision shall be reflected, consistent with the purposes of this\nsubdivision, in either the fees paid or benefits or other supports,\nincluding training, provided to non-supervisory home health aides or any\nother personnel with direct patient care responsibility of such\ncontracted licensed home care services agencies and such fees, benefits\nor other supports shall be proportionate to the contracted volume of\nservices attributable to each contracted agency. Such agencies or\nprograms shall submit to providers with which they contract written\ncertifications attesting that such funds will be used solely for the\npurposes of recruitment, training and retention of non-supervisory home\nhealth aides or other personnel with direct patient care responsibility\nand shall maintain in their files expenditure plans specifying how such\nfunds will be used for such purposes. The commissioner is authorized to\naudit such agencies or programs to ensure compliance with such\ncertifications and expenditure plans and shall recoup any funds\ndetermined to have been used for purposes other than those set forth in\nthis subdivision. Such recoupment shall be in addition to any other\npenalties provided by law.\n  (d) Funds under this subdivision are not intended to supplant support\nprovided by local government.\n  11. (a) Notwithstanding any inconsistent provision of law, rule or\nregulation and subject to the availability of federal financial\nparticipation, the commissioner is authorized and directed to implement\na program whereby he or she shall adjust medical assistance rates of\npayment for services provided by certified home health agencies, long\nterm home health care programs, AIDS home care programs and providers of\npersonal care services and/or providers of private duty nursing services\nunder the social services law in accordance with this subdivision for\npurposes of enhancing the provision, accessibility, quality and/or\nefficiency of home care services. Such rate adjustments shall be for the\npurposes of assisting such providers, located in social services\ndistricts which do not include a city with a population of over one\nmillion persons, in meeting the cost of:\n  (i) Increased use of technology in the delivery of services, including\ntelehealth and clinical and administrative management information\nsystem;\n  (ii) Specialty training of direct service personnel in dementia care,\npediatric care and/or the care of other conditions or populations with\ncomplex needs;\n  (iii) Increased auto and travel expenses associated with rising fuel\nprices, including the increased cost of providing services in remote\nareas; and/or\n  (iv) Providing enhanced access to care for high need populations;\n  (v) Such other purposes related to the provision of quality,\naccessible home care services as the commissioner may deem appropriate.\n  (b) The commissioner shall increase the medical assistance rates of\npayment pursuant to this subdivision in an amount up to an aggregate of\nsixteen million dollars for the period June first, two thousand six\nthrough March thirty-first, two thousand seven, and sixteen million\ndollars for the period April first, two thousand seven through March\nthirty-first, two thousand eight, and sixteen million dollars for the\nperiod April first, two thousand eight through March thirty-first, two\nthousand nine, provided however that if federal financial participation\nis not available for rate adjustments pursuant to this subdivision such\naggregate amount shall not exceed eight million dollars, and provided,\nfurther, however, that for purposes of long term home health care\nprograms, such payments provided pursuant to this subdivision shall be\ntreated as supplemental payments and shall not effect any current cost\ncap requirement.\n  (c) Such rate adjustments shall be in the form of a uniform percentage\nadd-on to the rates, as determined by the department, based on the\nproportion of the total allocated adjustment dollars, as determined in\nparagraph (b) of this subdivision, to the total medicaid expenditures\nfor services provided for certified home health agencies, long-term home\nhealth care programs, AIDS nursing, personal care assistants and private\nduty nurses services in local social services districts which do not\ninclude a city with a population over one million.\n  12. (a) Notwithstanding any inconsistent provision of law or\nregulation and subject to the availability of federal financial\nparticipation, effective on and after April first, two thousand eleven\nthrough March thirty-first, two thousand twelve, rates of payment by\ngovernment agencies for services provided by certified home health\nagencies, except for such services provided to children under eighteen\nyears of age and other discrete groups as may be determined by the\ncommissioner pursuant to regulations, shall reflect ceiling limitations\ndetermined in accordance with this subdivision, provided, however, that\nat the discretion of the commissioner such ceilings may, as an\nalternative, be applied to payments for services provided on and after\nApril first, two thousand eleven, except for such services provided to\nchildren and other discrete groups as may be determined by the\ncommissioner pursuant to regulations. In determining such payments or\nrates of payment, agency ceilings shall be established. Such ceilings\nshall be applied to payments or rates of payment for certified home\nhealth agency services as established pursuant to this section and\napplicable regulations.  Ceilings shall be based on a blend of: (i) an\nagency's two thousand nine average per patient Medicaid claims, weighted\nat a percentage as determined by the commissioner; and (ii) the two\nthousand nine statewide average per patient Medicaid claims adjusted by\na regional wage index factor and an agency patient case mix index,\nweighted at a percentage as determined by the commissioner. Such\nceilings will be effective April first, two thousand eleven through\nMarch thirty-first, two thousand twelve. An interim payment or rate of\npayment adjustment effective April first, two thousand eleven, shall be\napplied to agencies with projected average per patient Medicaid claims,\nas determined by the commissioner, to be over their ceilings. Such\nagencies shall have their payments or rates of payment reduced to\nreflect the amount by which such claims exceed their ceilings.\n  (b) Ceiling limitations determined pursuant to paragraph (a) of this\nsubdivision shall be subject to reconciliation. In determining payment\nor rate of payment adjustments based on such reconciliation, adjusted\nagency ceilings shall be established. Such adjusted ceilings shall be\nbased on a blend of: (i) an agency's two thousand nine average per\npatient Medicaid claims adjusted by the percentage of increase or\ndecrease in such agency's patient case mix from the two thousand nine\ncalendar year to the annual period April first, two thousand eleven\nthrough March thirty-first, two thousand twelve, weighted at a\npercentage as determined by the commissioner; and (ii) the two thousand\nnine statewide average per patient Medicaid claims adjusted by a\nregional wage index factor and the agency's patient case mix index for\nthe annual period April first, two thousand eleven through March\nthirty-first, two thousand twelve, weighted at a percentage as\ndetermined by the commissioner. Such adjusted agency ceiling shall be\ncompared to actual Medicaid paid claims for the period April first, two\nthousand eleven through March thirty-first, two thousand twelve. In\nthose instances when an agency's actual per patient Medicaid claims are\ndetermined to exceed the agency's adjusted ceiling, the amount of such\nexcess shall be due from each such agency to the state and may be\nrecouped by the department in a lump sum amount or through reductions in\nthe Medicaid payments due to the agency. In those instances where an\ninterim payment or rate of payment adjustment was applied to an agency\nin accordance with paragraph (a) of this subdivision, and such agency's\nactual per patient Medicaid claims are determined to be less than the\nagency's adjusted ceiling, the amount by which such Medicaid claims are\nless than the agency's adjusted ceiling shall be remitted to each such\nagency by the department in a lump sum amount or through an increase in\nthe Medicaid payments due to the agency.\n  (c) Interim payment or rate of payment adjustments pursuant to this\nsubdivision shall be based on Medicaid paid claims, as determined by the\ncommissioner, for services provided by agencies in the base year two\nthousand nine. Amounts due from reconciling rate adjustments shall be\nbased on Medicaid paid claims, as determined by the commissioner, for\nservices provided by agencies in the base year two thousand nine and\nMedicaid paid claims, as determined by the commissioner, for services\nprovided by agencies in the reconciliation period April first, two\nthousand eleven through March thirty-first, two thousand twelve. In\ndetermining case mix, each patient shall be classified using a system\nbased on measures which may include, but not be limited to, clinical and\nfunctional measures, as reported on the federal Outcome and Assessment\nInformation Set (OASIS), as may be amended.\n  (d) The commissioner may require agencies to collect and submit any\ndata required to implement the provisions of this subdivision. The\ncommissioner may promulgate regulations to implement the provisions of\nthis subdivision.\n  (e) Payments or rate of payment adjustments determined pursuant to\nthis subdivision shall, for the period April first, two thousand eleven\nthrough March thirty-first, two thousand twelve, be retroactively\nreconciled utilizing the methodology in paragraph (b) of this\nsubdivision and utilizing actual paid claims from such period.\n  (f) Notwithstanding any inconsistent provision of this subdivision,\npayments or rate of payment adjustments made pursuant to this\nsubdivision shall not result in an aggregate annual decrease in Medicaid\npayments to providers subject to this subdivision that is in excess of\ntwo hundred million dollars, as determined by the commissioner and not\nsubject to subsequent adjustment, and the commissioner shall make such\nadjustments to such payments or rates of payment as are necessary to\nensure that such aggregate limits on payment decreases are not exceeded.\n  13. (a) Notwithstanding any inconsistent provision of law or\nregulation and subject to the availability of federal financial\nparticipation, effective April first, two thousand twelve through March\nthirty-first, two thousand twenty-nine, payments by government agencies\nfor services provided by certified home health agencies, except for such\nservices provided to children under eighteen years of age and other\ndiscreet groups as may be determined by the commissioner pursuant to\nregulations, shall be based on episodic payments. In establishing such\npayments, a statewide base price shall be established for each sixty day\nepisode of care and adjusted by a regional wage index factor and an\nindividual patient case mix index. Such episodic payments may be further\nadjusted for low utilization cases and to reflect a percentage\nlimitation of the cost for high-utilization cases that exceed outlier\nthresholds of such payments.\n  (b) Initial base year episodic payments shall be based on Medicaid\npaid claims, as determined and adjusted by the commissioner to achieve\nsavings comparable to the prior state fiscal year, for services provided\nby all certified home health agencies in the base year two thousand\nnine. Subsequent base year episodic payments may be based on Medicaid\npaid claims for services provided by all certified home health agencies\nin a base year subsequent to two thousand nine, as determined by the\ncommissioner, provided, however, that such base year adjustment shall be\nmade not less frequently than every three years. In determining case\nmix, each patient shall be classified using a system based on measures\nwhich may include, but not limited to, clinical and functional measures,\nas reported on the federal Outcome and Assessment Information Set\n(OASIS), as may be amended.\n  (c) The commissioner may require agencies to collect and submit any\ndata required to implement this subdivision. The commissioner may\npromulgate regulations to implement the provisions of this subdivision.\n  14. (a) Notwithstanding any contrary provision of law and subject to\nthe availability of federal financial participation, for periods on and\nafter March first, two thousand fourteen the commissioner shall adjust\nMedicaid rates of payment for services provided by certified home health\nagencies to address cost increases stemming from the wage increases\nrequired by implementation of the provisions of section thirty-six\nhundred fourteen-c of this article. Such rate adjustments shall be based\non a comparison, as determined by the commissioner, of the hourly\ncompensation levels for home health aides and personal care aides as\nreflected in the existing Medicaid rates for certified home health\nagencies to the hourly compensation levels incurred as a result of\ncomplying with the provisions of section thirty-six hundred fourteen-c\nof this article.\n  (b) Notwithstanding any contrary provision of law and subject to the\navailability of federal financial participation, for periods on and\nafter March first, two thousand fourteen the commissioner shall adjust\nMedicaid rates of payment for services provided by long term home health\ncare programs to address cost increases stemming from the wage increases\nrequired by implementation of the provisions of section thirty-six\nhundred fourteen-c of this article. Such rate adjustments shall be based\non a comparison, as determined by the commissioner, of the hourly\ncompensation levels for home health aides and personal care aides as\nreflected in the existing Medicaid rates for long term home health care\nprograms to the hourly compensation levels incurred as a result of\ncomplying with the provisions of section thirty-six hundred fourteen-c\nof this article.\n