NY Soc Serv L § 365-A (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 365-A - Character and Adequacy of Assistance.

§  365-a. Character and adequacy of assistance. The amount, nature and manner of providing  medical  assistance  for  needy  persons  shall  be determined by the public welfare official with the advice of a physician and  in  accordance  with  the  local  medical plan, this title, and the regulations of the department.   1. "Benchmark coverage" shall mean payment of part or all of the  cost of medically necessary medical, dental, and remedial care, services, and supplies described in subdivision two of this section, and to the extent not  included  therein,  any  essential benefits as defined in 42 U.S.C. 18022(b), with the exception of institutional long term  care  services; such  care,  services and supplies shall be provided consistent with the managed care program described in section three hundred sixty-four-j  of this title.   2.  "Standard  coverage" shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care,  services  and supplies,  as  authorized  in  this  title  or  the  regulations  of the department, which are necessary to prevent, diagnose,  correct  or  cure conditions  in  the  person  that  cause acute suffering, endanger life, result in illness or infirmity, interfere with  such  person's  capacity for normal activity, or threaten some significant handicap and which are furnished  an  eligible  person  in  accordance  with this title and the regulations of the department. Such care, services  and  supplies  shall include the following medical care, services and supplies, together with such  medical  care,  services and supplies provided for in subdivisions three, four and five of this section, and such  medical  care,  services and supplies as are authorized in the regulations of the department:  (a)  services  of  qualified physicians, dentists, nurses, and private duty nursing services shall be further  subject  to  the  provisions  of section  three  hundred sixty-seven-o of this chapter, optometrists, and other related professional personnel;  (b) care, treatment, maintenance and nursing  services  in  hospitals, nursing homes that qualify as providers in the medicare program pursuant to  title XVIII of the federal social security act, infirmaries or other eligible medical institutions, and health-related care and  services  in intermediate   care   facilities,  while  operated  in  compliance  with applicable provisions of this chapter, the public health law, the mental hygiene law and other laws, including any provision thereof requiring an operating certificate or license,  or  where  such  facilities  are  not conveniently   accessible,  in  hospitals  located  without  the  state; provided,  however,  that  care,  treatment,  maintenance  and   nursing services  in nursing homes or in intermediate care facilities, including those operated by the state department of mental hygiene  or  any  other state  department or agency, shall, for persons who are receiving or who are eligible for medical assistance  under  provisions  of  subparagraph four  of  paragraph  (a)  of  subdivision  one  of section three hundred sixty-six of this chapter, be limited to such periods of time as may  be determined  necessary  in accordance with a utilization review procedure established by the state commissioner of health providing for  a  review of  medical necessity, in the case of skilled nursing care, every thirty days for the first ninety days and every ninety days thereafter, and  in the  case  of  care in an intermediate care facility, at least every six months, or more frequently if indicated at the time of the last  review, consistent  with  federal  utilization  review  requirements;  provided, further, that in-patient  care,  services  and  supplies  in  a  general hospital  shall  not exceed such standards as the commissioner of health shall promulgate but in no case greater than twenty days  per  spell  of illness  during which all or any part of the cost of such care, services and supplies are claimed as an item of  medical  assistance,  unless  it  shall  have  been  determined in accordance with procedures and criteria established by such commissioner that a further identifiable  period  of in-patient  general hospital care is required for particular patients to preserve  life or to prevent substantial risks of continuing disability; provided further, that in-patient  care,  services  and  supplies  in  a general  hospital  shall,  in  the  case  of a person admitted to such a facility on a Friday or  Saturday,  be  deemed  to  include  only  those in-patient  days beginning with and following the Sunday after such date of admission, unless such care, services and supplies are furnished  for an  actual  medical  emergency  or  pre-operative  care  for  surgery as provided in paragraph (d) of subdivision five of this  section,  or  are furnished  because  of  the necessity of emergency or urgent surgery for the alleviation of severe pain or the necessity for immediate  diagnosis or  treatment  of  conditions  which threaten disability or death if not promptly diagnosed or treated; provided, however, in-patient days  of  a general  hospital admission beginning on a Friday or a Saturday shall be included commencing with the day of  admission  in  a  general  hospital which  the  commissioner  or  his designee has found to be rendering and which continues to render full service on a seven day a week basis which determination shall be made after taking into consideration such factors as the routine  availability  of  operating  room  services,  diagnostic services  and  consultants,  laboratory services, radiological services, pharmacy services, staff patterns consistent with full services and such other factors as the commissioner or his designee  deems  necessary  and appropriate;  provided,  further,  that  in-patient  care,  services and supplies in a general hospital shall  not  include  care,  services  and supplies  furnished  to  patients  for  certain uncomplicated procedures which may be performed  on  an  out-patient  basis  in  accordance  with regulations  of  the  commissioner  of health, unless the person or body designated by such commissioner determines that the medical condition of the individual patient requires that the procedure be  performed  on  an in-patient basis;  (c)  out-patient hospital or clinic services in facilities operated in compliance with applicable provisions of this chapter, the public health law, the mental hygiene law and other  laws,  including  any  provisions thereof   requiring  an  operating  certificate  or  license,  including facilities authorized by the appropriate licensing authority to  provide integrated mental health services, and/or alcoholism and substance abuse services,  and/or  physical  health services, and/or services to persons with developmental disabilities, when such services are  provided  at  a single  location  or  service  site,  or  where  such facilities are not conveniently accessible, in any hospital located within  the  state  and care  and services in a day treatment program operated by the department of mental hygiene or by a voluntary agency under an agreement with  such department  in  that  part of a public institution operated and approved pursuant to law as  an  intermediate  care  facility  for  persons  with developmental  disabilities;  and  provided,  that  the commissioners of health, mental health, alcoholism and substance abuse services  and  the office for people with developmental disabilities may issue regulations, including  emergency regulations promulgated prior to October first, two thousand fifteen that are required to facilitate  the  establishment  of integrated services clinics. Any such regulations promulgated under this paragraph  shall  be described in the annual report required pursuant to section forty-five-c of part A of chapter fifty-six of the laws  of  two thousand thirteen;  (d) home health services provided in a recipient's home and prescribed by  a physician including services of a nurse provided on a part-time or intermittent basis rendered by an approved home health agency or  if  no  such agency is available, by a registered nurse, licensed to practice in this  state,  acting  under  the  written orders of a physician and home health aide service by an individual  or  shared  aide  provided  by  an approved home health agency when such services are determined to be cost effective  and  appropriate to meet the recipient's needs for assistance subject to the provisions of section  three  hundred  sixty-seven-j  and section three hundred sixty-seven-o of this title;  (e)  (i) personal care services, including personal emergency response services, shared aide and an individual aide, subject to the  provisions of  subparagraphs  (ii),  (iii),  (iv),  (v) and (vi) of this paragraph, furnished to an individual who is not an  inpatient  or  resident  of  a hospital,  nursing  facility, intermediate care facility for individuals with intellectual disabilities, or institution for  mental  disease,  as determined  to  meet  the  recipient's  needs  for  assistance when cost effective  and  appropriate,  and  when  prescribed   by   a   qualified independent  physician selected or approved by the department of health, in accordance with the recipient's plan of  treatment  and  provided  by individuals  who  are  qualified  to  provide  such  services,  who  are supervised by a  registered  nurse  and  who  are  not  members  of  the recipient's  family,  and  furnished  in  the  recipient's home or other location;  (ii) the commissioner is authorized to adopt  standards,  pursuant  to emergency  regulation,  for  the provision, management and assessment of services available under this paragraph for individuals whose  need  for such  services  exceeds  a  specified  level  to  be  determined  by the commissioner, and who with the provision of such services is capable  of safely  remaining  in the community in accordance with the standards set forth in Olmstead v. LC by Zimring,  527  US  581  (1999)  and  consider whether an individual is capable of safely remaining in the community;  (iii)  the  commissioner shall provide assistance to persons receiving services under this paragraph who are transitioning  to  receiving  care from  a  managed  long  term  care  plan  certified  pursuant to section forty-four hundred three-f of the public  health  law,  consistent  with subdivision  thirty-one  of  section  three hundred sixty-four-j of this title;  (iv) personal care services available pursuant to this paragraph shall not exceed eight hours per week for individuals whose needs are  limited to nutritional and environmental support functions;  (v)  subject  to  the availability of federal financial participation, personal care services other than personal emergency  response  services available  pursuant  to  this  paragraph  shall  be  available  only  to individuals  assessed  as  needing  at  least  limited  assistance  with physical  maneuvering  with more than two activities of daily living, or for individuals with a dementia or Alzheimer's  diagnosis,  assessed  as needing  at  least  supervision  with  more  than  one activity of daily living, as defined and determined by using an evidenced based  validated assessment  instrument  approved  by  the commissioner and in accordance with regulations of the department and any applicable state and  federal laws  by  an  independent  assessor. The provisions of this subparagraph shall only apply to individuals who receive an initial authorization for such services on or after October first, two thousand twenty;  (vi) In establishing any standards for the  provision,  management  or assessment  of personal care services the state shall meet the standards set forth in Olmstead v. LC by Zimring, 527 US 581 (1999)  and  consider whether an individual is capable of safely remaining in the community;  (f)  preventive,  prophylactic and other routine dental care, services and supplies;  (g) sickroom supplies, eyeglasses, prosthetic  appliances  and  dental prosthetic  appliances  furnished  in accordance with the regulations of the department; provided further that: (i) the commissioner of health is authorized to implement a preferred diabetic supply program wherein  the department  of  health  will  receive  enhanced  rebates  from preferred manufacturers  of  glucometers  and  test  strips,   and   may   subject non-preferred  manufacturers'  glucometers  and  test  strips  to  prior authorization under section two  hundred  seventy-three  of  the  public health law; (ii) enteral formula therapy and nutritional supplements are limited  to  coverage  only for nasogastric, jejunostomy, or gastrostomy tube feeding, for treatment of  an  inborn  metabolic  disorder,  or  to address  growth  and  development  problems  in children, or, subject to standards established by the commissioner, for persons with a  diagnosis of  HIV  infection,  AIDS  or  HIV-related illness or other diseases and conditions; (iii) prescription  footwear  and  inserts  are  limited  to coverage  only  when  used  as an integral part of a lower limb orthotic appliance, as part of a diabetic treatment plan, or  to  address  growth and  development  problems  in  children;  (iv)  compression and support stockings are limited to coverage only for  pregnancy  or  treatment  of venous  stasis  ulcers; and (v) the commissioner of health is authorized to implement an incontinence supply utilization  management  program  to reduce  costs  without  limiting  access  through  the existing provider network,  including  but  not  limited  to  single  or  multiple  source contracts  or,  a  preferred  incontinence  supply  program  wherein the department of  health  will  receive  enhanced  rebates  from  preferred manufacturers  of  incontinence  supplies, and may subject non-preferred manufacturers' incontinence  supplies  to  prior  approval  pursuant  to regulations  of  the  department, provided any necessary approvals under federal  law  have  been   obtained   to   receive   federal   financial participation in the costs of incontinence supplies provided pursuant to this subparagraph;  (g-1)  drugs provided on an in-patient basis, those drugs contained on the list  established  by  regulation  of  the  commissioner  of  health pursuant  to subdivision four of this section, and those drugs which may not  be  dispensed  without  a  prescription  as  required  by   section sixty-eight  hundred ten of the education law and which the commissioner of health shall determine to be reimbursable based upon such factors  as the  availability of such drugs or alternatives at low cost if purchased by a medicaid recipient, or  the  essential  nature  of  such  drugs  as described  by  such commissioner in regulations, provided, however, that such drugs, exclusive of long-term maintenance drugs, shall be dispensed in quantities no greater than a thirty day supply or one hundred  doses, whichever  is  greater; provided further that the commissioner of health is authorized to  require  prior  authorization  for  any  refill  of  a prescription when more than a ten day supply of the previously dispensed amount  should remain were the product used as normally indicated, or in the case of a controlled substance, as defined in  section  thirty-three hundred  two of the public health law, when more than a seven day supply of the previously dispensed amount should remain were the  product  used as  normally indicated; provided further that the commissioner of health is authorized to require prior authorization of prescriptions of  opioid analgesics  in  excess  of  four prescriptions in a thirty-day period in accordance with section two hundred seventy-three of the  public  health law;  medical  assistance  shall  not include any drug provided on other than an in-patient basis for which a recipient is charged or a claim  is made  in  the  case  of  a  prescription  drug, in excess of the maximum reimbursable amounts to be  established  by  department  regulations  in accordance  with  standards  established  by the secretary of the United  States department of health and human services, or, in  the  case  of  a drug not requiring a prescription, in excess of the maximum reimbursable amount  established  by the commissioner of health pursuant to paragraph (a) of subdivision four of this section;  (h)  speech therapy, and when provided at the direction of a physician or nurse practitioner, physical therapy including related rehabilitative services and occupational therapy;  (i) laboratory and x-ray services; and  (j) transportation when essential and appropriate  to  obtain  medical care,  services  and  supplies  otherwise  available  under  the medical assistance  program  in  accordance  with  this  section,   upon   prior authorization,  except  when required in order to obtain emergency care, and when not otherwise available to the  recipient  free  of  charge  or through  a  transportation program implemented pursuant to section three hundred sixty-five-h of this title and approved by the  commissioner  of health  for  which  federal  financial  participation  is  claimed as an administrative cost;   * (k)  care  and  services  furnished  by   an   entity   offering   a comprehensive  health  services  plan,  including  an  entity  that  has received a certificate of  authority  pursuant  to  sections  forty-four hundred  three, forty-four hundred three-a or forty-four hundred eight-a of the public health law (as added by chapter six hundred thirty-nine of the laws  of  nineteen  hundred  ninety-six)  or  a  health  maintenance organization  authorized under article forty-three of the insurance law, to eligible individuals residing in the geographic area served  by  such entity, when such services are furnished in accordance with an agreement approved  by  the department which meets the requirements of federal law and regulations.   * NB Effective until December 31, 2024   * (k)  care  and  services  furnished  by   an   entity   offering   a comprehensive  health  services plan to eligible individuals residing in the geographic area served  by  such  entity,  when  such  services  are furnished  in  accordance  with  an agreement approved by the department which meets the requirements of federal law and regulations.   * NB Effective December 31, 2024  (l) care and services of podiatrists which  care  and  services  shall only  be  provided  upon  referral by a physician, nurse practitioner or certified nurse midwife in accordance with  the  program  of  early  and periodic  screening  and  diagnosis  established pursuant to subdivision three of this section or to persons eligible for  benefits  under  title XVIII   of  the  federal  social  security  act  as  qualified  medicare beneficiaries in  accordance  with  federal  requirements  therefor  and private  duty  nurses  which care and services shall only be provided in accordance with regulations  of  the  department  of  health;  provided, however, that private duty nursing services shall not be restricted when such  services  are  more  appropriate  and  cost-effective than nursing services provided by a home health  agency  pursuant  to  section  three hundred sixty-seven-l;  (m)  hospice  services  provided  by  a  hospice certified pursuant to article forty of the public health  law,  to  the  extent  that  federal financial  participation  is  available,  and,  notwithstanding  federal financial participation and any provision of law or  regulation  to  the contrary,   for  hospice  services  provided  pursuant  to  the  hospice supplemental financial assistance program for persons with special needs as provided for in article forty of the public health law.   * (n) care and services of audiologists provided  in  accordance  with regulations of the department of health.   * NB There are two ù (n)'s    * (n)  care,  treatment,  maintenance and rehabilitation services that would otherwise qualify for reimbursement pursuant to  this  chapter  to persons  suffering  from alcoholism in alcoholism facilities or chemical dependence, as such term is  defined  in  section  1.03  of  the  mental hygiene  law,  in inpatient chemical dependence facilities, services, or programs operated in  compliance  with  applicable  provisions  of  this chapter  and  the  mental  hygiene  law,  and certified by the office of alcoholism and substance abuse  services,  provided  however  that  such services  shall  be limited to such periods of time as may be determined necessary in accordance with a utilization review procedure  established by  the  commissioner  of  the  office of alcoholism and substance abuse services and provided further, that this paragraph shall  not  apply  to any  hospital  or  part of a hospital as defined in section two thousand eight hundred one of the public health law.   * NB There are two ù (n)'s   * (o) care and services furnished by a managed long term care plan  or approved managed long term care demonstration pursuant to the provisions of  section  forty-four  hundred  three-f  of  the  public health law to eligible individuals residing in the  geographic  area  served  by  such entity, when such services are furnished in accordance with an agreement with  the  department  of health and meet the applicable requirements of federal law and regulation.   * NB Repealed December 31, 2024  (p) targeted case management services provided to children who  (i) are eighteen years of age or under; and  (ii) either  (1) are physically disabled, according  to  the  federal  supplemental security  income program criteria, including but not limited to a person who is multiply disabled; or  (2)  have  a  developmental  disability,  as  defined  in  subdivision twenty-two  of  section  1.03  of the mental hygiene law and demonstrate complex health needs as defined in paragraph c of subdivision  seven  of section three hundred sixty-six of this title; or  (3) have a mental illness, as defined in subdivision twenty of section 1.03  of the mental hygiene law and demonstrate complex health or mental health care needs as defined in  paragraph  d  of  subdivision  nine  of section three hundred sixty-six of this title; and  (iii)  require  the  level  of  care  provided by an intermediate care facility  for  the  developmentally  disabled,  a  nursing  facility,  a hospital or any other institution; and  (iv)  are capable of being cared for in the community if provided with case management services  and/or  other  services  provided  under  this title; and  (v)  are capable of being cared for in the community at less cost than in the appropriate institutional setting; and  (vi)  are  not  receiving  services  under   section   three   hundred sixty-seven-c of this title and for whom services provided under section three   hundred  sixty-seven-a  of  this  title  are  not  available  or sufficient to support the children's care in the community.  (q) diabetes self-management training services for  persons  diagnosed with  diabetes when such services are ordered by a physician, registered physician assistant, registered nurse practitioner, or licensed  midwife and  provided  by  a  licensed,  registered,  or  certified  health care professional, as determined  by  the  commissioner  of  health,  who  is certified as a diabetes educator by the National Certification Board for Diabetes  Educators,  or  a  successor  national certification board, or provided by such  a  professional  who  is  affiliated  with  a  program certified by the American Diabetes Association, the American Association  of Diabetes Educators, the Indian Health Services, or any other national accreditation  organization approved by the federal centers for medicare and medicaid services; provided, however, that the  provisions  of  this paragraph  shall  not  take  effect unless all necessary approvals under federal law  and  regulation  have  been  obtained  to  receive  federal financial  participation  in  the costs of health care services provided pursuant to this paragraph. Nothing in this paragraph shall be construed to modify any licensure, certification or scope  of  practice  provision under title eight of the education law.  (r)  asthma  self-management  training  services for persons diagnosed with asthma when such services are ordered by  a  physician,  registered physician's   assistant,  registered  nurse  practitioner,  or  licensed midwife and provided by a licensed, registered, or certified health care professional, as determined  by  the  commissioner  of  health,  who  is certified  as  an  asthma  educator  by  the  National  Asthma  Educator Certification  Board,  or  a  successor  national  certification  board; provided,  however, that the provisions of this paragraph shall not take effect unless all necessary approvals under federal law  and  regulation have  been  obtained  to  receive federal financial participation in the costs of health care  services  provided  pursuant  to  this  paragraph. Nothing  in  this  paragraph shall be construed to modify any licensure, certification or scope of practice provision under title  eight  of  the education law.  (s) smoking cessation counseling services; provided, however, that the provisions  of this paragraph shall not take effect unless all necessary approvals under federal law and regulation have been obtained to receive federal financial participation in the costs of such services.  (t) cardiac rehabilitation services  when  ordered  by  the  attending physician and provided in a hospital-based or free-standing clinic in an area  set  aside for cardiac rehabilitation, or in a physician's office; provided, however, that the provisions of  this  paragraph  relating  to cardiac  rehabilitation  services  shall  not  take  effect  unless  all necessary approvals under federal law and regulation have been  obtained to  receive  federal  financial  participation  in  the  costs  of  such services.  (u) screening,  brief  intervention,  and  referral  to  treatment  of individuals  at  risk  for  substance  abuse  including  referral to the appropriate level of intervention and treatment in a community  setting; provided,  however,  that  the  provisions of this paragraph relating to screening, brief intervention, and referral to treatment services  shall not  take  effect  unless  all necessary approvals under federal law and regulation have been obtained to receive federal financial participation in such costs.  (v) administration of  vaccinations  in  a  pharmacy  by  a  certified pharmacist within his or her scope of practice.  (w)  podiatry  services  for  individuals with a diagnosis of diabetes mellitus; provided, however, that the provisions of this paragraph shall not take effect unless all necessary approvals  under  federal  law  and regulation have been obtained to receive federal financial participation in  the  costs  of  health  care  services  provided  pursuant  to  this paragraph.  (x)(i) lactation counseling services for pregnant and postpartum women when such services are ordered  by  a  physician,  physician  assistant, nurse  practitioner,  or  midwife  and provided by a qualified lactation care provider, as determined by the commissioner  of  health;  provided, however,  that  the  provisions  of this paragraph shall not take effect unless all necessary approvals under federal  law  and  regulation  have been obtained to receive federal financial participation in the costs of  health  care  services  provided  pursuant to this paragraph. Nothing in this paragraph shall be construed to modify any licensure, certification or scope of practice provision under title eight of the education law.  (ii)  for  the  purposes  of this paragraph, the following terms shall have the following meanings:  (1) "Qualified lactation  care  provider"  shall  mean  a  person  who possesses  current  certification  as  a  lactation care provider from a certification program accredited by a nationally recognized  accrediting agency.  (2) "Nationally recognized accrediting agency" shall mean a nationally recognized  accrediting  agency designated by the commissioner; provided that the commissioner shall designate more than one agency.  (y) harm reduction counseling and services to reduce or  minimize  the adverse  health  consequences  associated  with  drug use, provided by a qualified drug treatment program  or  community-based  organization,  as determined  by  the  commissioner of health; provided, however, that the provisions of this paragraph shall not take effect unless all  necessary approvals under federal law and regulation have been obtained to receive federal  financial  participation  in  the costs of health care services provided pursuant to this paragraph. Nothing in this paragraph shall  be construed  to  modify  any licensure, certification or scope of practice provision under title eight of the education law.  (z) hepatitis C wrap-around services to promote care coordination  and integration when ordered by a physician, registered physician assistant, registered  nurse  practitioner,  or licensed midwife, and provided by a qualified professional, as determined by  the  commissioner  of  health. Such   services   may   include   client  outreach,  identification  and recruitment, hepatitis C education and counseling, coordination of  care and   adherence   to  treatment,  assistance  in  obtaining  appropriate entitlement  services,  peer  support  and  other  supportive  services; provided,  however, that the provisions of this paragraph shall not take effect unless all necessary approvals under federal law  and  regulation have  been  obtained  to  receive federal financial participation in the costs of health care  services  provided  pursuant  to  this  paragraph. Nothing  in  this  paragraph shall be construed to modify any licensure, certification or scope of practice provision under title  eight  of  the education law.   ** (aa)  care  and  services  furnished  by a developmental disability individual support and care coordination organization (DISCO)  that  has received  a  certificate  of  authority  pursuant  to section forty-four hundred three-g  of  the  public  health  law  to  eligible  individuals residing  in  the  geographic  area  served  by  such  entity, when such services are furnished in accordance with an agreement approved  by  the department  of  health  which  meets the requirements of federal law and regulations.   * NB Repealed September 30, 2023  (bb) Subject to the availability of federal  financial  participation, services  and  supports  authorized by the federal regulations governing the Home and Community-Based Attendant Services and Supports State  Plan Option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).  (cc)  care and services for surgical first assistant services provided by a registered nurse first assistant provided that: (i) the  registered nurse  first  assistant is certified in operating room nursing; (ii) the services are within the scope of practice of  a  non-physician  surgical first  assistant;  and  (iii)  the terms and conditions of the policy or contract otherwise provide for the coverage of the services. Nothing  in this  paragraph  shall be construed to prevent the medical management or utilization review of the services; prevent a policy  or  contract  from  requiring  that  services  are  to  be  provided  through  a  network of participating providers who meet certain requirements for participation, including provider credentialing; or prohibit an insurer from  providing a  global  or  capitated  payment  or  electing  to directly reimburse a non-physician surgical first assistant for the  services,  as  otherwise permitted by law.  (dd) pasteurized donor human milk (PDHM), which may include fortifiers as  medically indicated, for inpatient use, for which a licensed medical practitioner has issued an order for  an  infant  who  is  medically  or physically  unable  to  receive  maternal  breast milk or participate in breast feeding or whose mother is  medically  or  physically  unable  to produce  maternal  breast  milk  at  all  or in sufficient quantities or participate in breast feeding despite optimal  lactation  support.  Such infant  shall:  (i)  have  a  documented  birth  weight of less than one thousand five hundred grams; or  (ii)  have  a  congenital  or  acquired condition  that  places  the  infant  at  a high risk for development of necrotizing enterocolitis;  or  (iii)  have  a  congenital  or  acquired condition  that  may  benefit  from  the  use  of  donor  breast milk as determined by the commissioner of health or his or her designee.  (ee) Medical assistance  shall  include  the  coverage  of  a  set  of services  to ensure improved outcomes of women who are in the process of ovulation enhancing drugs, limited to the provision of  such  treatment, office  visits,  hysterosalpingogram  services,  pelvic ultrasounds, and blood testing; services shall be limited to those necessary  to  monitor such  treatment.  In  the  event  that  ninety percent federal financial participation for such services is not available,  the  state  share  of appropriations  related  to  these  services  shall  be used for a grant program intended to accomplish the purpose of this section.  (ff) evidence-based prevention and support services recognized by  the federal Centers for Disease Control (CDC), provided by a community-based organization,  and designed to prevent individuals at risk of developing diabetes from developing Type 2 diabetes.  (gg) addiction and mental health services  and  supports  provided  by facilities licensed pursuant to article thirty-six of the mental hygiene law.  (hh)  The commissioner is authorized to establish one or more maternal health promotion pilot programs in one or more counties  or  regions  of the  state,  for  the purpose of providing Medicaid reimbursement of the prenatal maternal  childbirth  education  and  preparation  classes  for enrollees,  and transportation to and from such classes, for the purpose of improving maternal outcomes and reducing  maternal-infant  mortality. The  commissioner  is authorized to establish fees for the reimbursement of such classes, subject to the approval of the state  director  of  the budget.   3.  Any  inconsistent  provisions  of  this  section  notwithstanding, medical assistance shall include:  (a) early and periodic screening and  diagnosis  of  eligible  persons under  six  years  of  age  and,  in  accordance  with  federal  law and regulations, early and periodic  screening  and  diagnosis  of  eligible persons  under  twenty-one years of age to ascertain physical and mental disabilities; and  (b) care and treatment of disabilities and  conditions  discovered  by such  screening and diagnosis including such care, services and supplies as the commissioner shall by regulation require to the extent  necessary to conform to applicable federal law and regulations.  (c)  screening,  diagnosis,  care  and  treatment  of disabilities and conditions discovered  by  such  screening  and  diagnosis  of  eligible persons  ages  three  to  twenty-one,  inclusive,  including  such care,  services and supplies as the commissioner shall by regulation require to the  extent  necessary  to  conform  to  applicable  federal   law   and regulations, provided that such screening, diagnosis, care and treatment shall include the provision of evaluations and related services rendered pursuant  to article eighty-nine of the education law and regulations of the commissioner of education  by  persons  qualified  to  provide  such services thereunder.  (d)  family  planning  services  and  twelve  months  of  supplies for eligible  persons  of  childbearing  age,   including   children   under twenty-one  years  of  age  who  can  be considered sexually active, who desire such services and supplies, in accordance with  the  requirements of  federal  law  and regulations and the regulations of the department. Coverage of prescription contraceptives  shall  include  a  twelve-month supply  that  may  be dispensed at one time or up to twelve times within one year from the date of the prescription. No person shall be compelled or coerced to accept such services or supplies.   4.  Any  inconsistent  provision  of  law   notwithstanding,   medical assistance  shall  not  include,  unless  required  by  federal  law and regulation  as  a  condition  of  qualifying   for   federal   financial participation  in  the  medicaid  program,  the following items of care, services and supplies:  (a) drugs which may be dispensed without a prescription as required by section sixty-eight hundred ten of the education law; provided, however, that the state commissioner of health may by regulation specify  certain of  such  drugs which may be reimbursed as an item of medical assistance in accordance with the price schedule established by such  commissioner. Notwithstanding  any  other  provision  of law, additions to the list of drugs reimbursable under this paragraph may be filed as  regulations  by the commissioner of health without prior notice and comment;  (a-1)  (i)  a brand name drug for which a multi-source therapeutically and generically equivalent drug, as determined by the federal  food  and drug  administration,  is available, unless previously authorized by the department of health.  The  commissioner  of  health  is  authorized  to exempt,  for good cause shown, any brand name drug from the restrictions imposed by this subparagraph;  (ii) notwithstanding  the  provisions  of  subparagraph  (i)  of  this paragraph,  the  commissioner  is authorized to deny reimbursement for a generic equivalent, including  a  generic  equivalent  that  is  on  the preferred  drug  list  or the clinical drug review program, when the net cost of the brand name drug, after consideration of all rebates, is less than the cost of the generic equivalent, unless prior  authorization  is obtained  under  section  two hundred seventy-three of the public health law;  (a-2) drugs which may not  be  dispensed  without  a  prescription  as required  by  section  sixty-eight hundred ten of the education law, and which  are  non  preferred  drugs  pursuant  to  section   two   hundred seventy-two  of  the  public  health  law,  or  the clinical drug review program under section two hundred seventy-four of the public health law, unless prior authorization is granted or not required;  (b) care and services of chiropractors and  supplies  related  to  the practice  of  chiropractic,  except  as provided for by the commissioner pursuant to a pilot program approved under federal law and regulation;  (c) care and services of an optometrist for using drugs in  excess  of the  maximum  reimbursable  amounts  for  optometric  care  and services established by the commissioner and approved  by  the  director  of  the budget;  (d)  any  medical  care,  services  or  supplies furnished outside the state, except, when  prior  authorized  in  accordance  with  department  regulations or for care, services and supplies furnished: as a result of a  medical  emergency;  because  the  recipient's health would have been endangered if he or she had  been  required  to  travel  to  the  state; because  the  care,  services or supplies were more readily available in the other state; or because it  is  the  general  practice  for  persons residing  in  the  locality wherein the recipient resides to use medical providers in the other state;  (e) drugs, procedures and  supplies  for  the  treatment  of  erectile dysfunction  when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of  the correction  law,  provided  that any denial of coverage pursuant to this paragraph  shall  provide  the  patient  with  the  means  of  obtaining additional  information  concerning  both  the  denial  and the means of challenging such denial; or  (f) drugs for the treatment of sexual or erectile dysfunction,  unless such  drugs are used to treat a condition, other than sexual or erectile dysfunction, for which the drugs have been approved by the federal  food and drug administration.  (g)  for  eligible  persons who are also beneficiaries under part D of title XVIII  of  the  federal  social  security  act,  drugs  which  are denominated  as  "covered part D drugs" under section 1860D-2(e) of such act.  (h) opioids prescribed in violation of the treatment plan standards of subdivision eight of section  thirty-three  hundred  thirty-one  of  the public  health  law or treatment plan standards as otherwise required by the commissioner.   5.  (a)  Medical  assistance  shall  include  surgical  benefits   for emergency  or  urgent  surgery  for  the alleviation of severe pain, for immediate diagnosis or treatment of conditions which threaten disability or death if not promptly diagnosed or treated.  (b) Medical assistance shall include  surgical  benefits  for  certain surgical  procedures  which meet standards for surgical intervention, as established by  the  state  commissioner  of  health  on  the  basis  of medically  indicated risk factors, and medically necessary surgery where delay in surgical intervention would substantially increase the  medical risk associated with such surgical intervention.  (c)  Medical  assistance  shall  include  surgical  benefits for other deferrable surgical procedures specified by the  state  commissioner  of health, based on the likelihood that deferral of such procedures for six months  or  more  may  jeopardize  life  or essential function, or cause severe pain; provided,  however,  such  deferrable  surgical  procedures shall  be  included in the case of in-patient surgery only when a second written  opinion  is  obtained  from  a  physician,  or   as   otherwise prescribed,  in  accordance  with  regulations  established by the state commissioner of health, that such surgery should not be deferred.  (d) Medical assistance shall include a maximum of one patient  day  of pre-operative  hospital care for surgery authorized by paragraphs (b) or (c) of  this  subdivision;  provided,  however,  that  with  respect  to specific  surgical procedures which the state commissioner of health has identified as requiring more than one patient day of pre-operative care, medical  assistance  shall  include  such  longer  maximum   period   of pre-operative care as such commissioner has identified as necessary.  (e)  Medical  assistance  shall  not  include  any in-patient surgical procedures or any care, services or supplies  related  to  such  surgery other than those authorized by this subdivision.   6.   Any   inconsistent  provision  of  law  notwithstanding,  medical assistance shall also include payment  for  medical  care,  services  or supplies  furnished to eligible pregnant women pursuant to paragraph (o)  of subdivision four of section three hundred sixty-six  and  subdivision six  of  section three hundred sixty-four-i of this title, to the extent that and for so long as federal  financial  participation  is  available therefor;  provided,  however,  that  nothing  in  this section shall be deemed to affect payment for such medical care, services or supplies  if federal financial participation is not available for such care, services and supplies solely by reason of the immigration status of the otherwise eligible pregnant woman.   7.  Medical  assistance  shall  also  include  disproportionate  share payments to general hospitals under the public health law.   8. When a non-governmental entity  is  authorized  by  the  department pursuant to contract or subcontract to make prior authorization or prior approval  determinations  that  may  be required for any item of medical assistance, a recipient may challenge any action taken or failure to act in connection with a prior authorization or prior approval determination as if such determination were made by a government entity, and shall  be entitled  to  the  same medical assistance benefits and standards and to the same notice and procedural due process rights, including a right  to a fair hearing and aid continuing pursuant to section twenty-two of this chapter,  as  if the prior authorization or prior approval determination were made by a government entity, without regard to  expiration  of  the prior service authorization.   9.   (a)  Notwithstanding  any  inconsistent  provision  of  law,  any utilization  controls  on  occupational  therapy  or  physical  therapy, including  but  not  limited to, prior approval of services, utilization thresholds or other limitations imposed  on  such  therapy  services  in relation  to  a  chronic  condition  in  clinics certified under article twenty-eight of the public health law or article sixteen of  the  mental hygiene  law  shall  be:  (i)  developed  by the department of health in concurrence with the office for people with developmental  disabilities; and (ii) in accord with nationally recognized professional standards. In the  event  that  nationally  recognized  professional  standards do not exist, such thresholds shall be based  upon  the  reasonably  recognized professional  standards  of  those with a specific expertise in treating individuals served by clinics certified under  article  twenty-eight  of the public health law or article sixteen of the mental hygiene law.  (b)  Prior  approval by the department of health of a physical therapy evaluation  or  an  occupational  therapy  evaluation  by  a   qualified practitioner   practicing   within  the  scope  of  such  practitioner's licensure shall not  be  required.  The  department  may  require  prior approval  for  treatment  as  recommended  by such an evaluation. In the event that prior approval is required, and the department fails to  make a determination within eight days of presentation of a treatment request for  physical  or  occupational  therapy  services, the department shall automatically approve four therapy visits. In the case of any denial  of a  prior  approval request for physical therapy or occupational therapy, the department shall provide a reasonable opportunity for the  qualified practitioner  to  provide  his  or  her  assessment of the beneficiary's physical and functional status as documented in a  treatment  plan  with reasonable  and  obtainable  goals.  If,  upon  completion  of such four therapy visits, the department has not yet rendered a  determination  on the   request   for  physical  or  occupational  therapy  services,  the department  shall  automatically  approve  an  additional  four  therapy visits.  Subsequent  automatic  approvals  shall  be  issued in the same manner until such time as the department issues a determination, but  in no  event  shall  such  approvals  exceed  the number of services or the period  of  time  recommended  by  the  evaluation.  If  the   qualified practitioner  provides  documentation  that is in accord with reasonably  recognized professional standards, the recommended treatment plan  shall be final, and the prior approval request shall be approved.   10.  The  department of health shall establish or procure the services of an independent assessor or assessors no later than October  1,  2022, in a manner and schedule as determined by the commissioner of health, to take  over  from  local departments of social services, Medicaid Managed Care providers, and Medicaid managed long term care plans performance of assessments and  reassessments  required  for  determining  individuals' needs  for  personal  care  services,  including as provided through the consumer directed personal assistance program,  and  other  services  or programs available pursuant to the state's medical assistance program as determined by such commissioner for the purpose of improving efficiency, quality,  and  reliability  in  assessment and to determine individuals' eligibility for Medicaid managed long term care  plans.  Notwithstanding the  provisions  of section one hundred sixty-three of the state finance law, or sections one hundred forty-two and one  hundred  forty-three  of the  economic  development  law,  or  any  contrary  provision  of  law, contracts may be entered or the commissioner may amend  and  extend  the terms of a contract awarded prior to the effective date and entered into pursuant  to  subdivision  twenty-four of section two hundred six of the public health law, as added by section thirty-nine of part C of  chapter fifty-eight  of  the  laws of two thousand eight, and a contract awarded prior to the effective date  and  entered  into  to  conduct  enrollment broker  and  conflict-free evaluation services for the Medicaid program, if such contract or contract amendment is for the purpose  of  procuring such   assessment  services  from  an  independent  assessor;  provided, however, in the case of a contract entered into after the effective date of this section, that:  (a) The department of health shall post on its website, for  a  period of no less than thirty days:  (i)  A description of the proposed services to be provided pursuant to the contract or contracts;  (ii) The  criteria  for  selection  of  a  contractor  or  contractors including,  but  not  limited  to,  being  unaffiliated  with any entity certified under article forty-four of  the  public  health  law  or  any service  provider licensed under article thirty-six of the public health law, demonstrated cultural  and  linguistic  competence,  experience  in evaluating the service needs of individuals with disabilities seeking to live  in  the community, and demonstrated compliance with all applicable state and  federal  laws.  Furthermore,  the  selection  criteria  shall consider  and  give  preference to whether a prospective contractor is a not-for-profit organization;  (iii) The period of time during which  a  prospective  contractor  may seek  selection,  which  shall  be  no  less than thirty days after such information is first posted on the website; and  (iv) The manner  by  which  a  prospective  contractor  may  submit  a proposal  for  selection,  which  may  include  submission by electronic means;  (b) All reasonable and responsive submissions that are  received  from prospective  contractors  in  a  timely fashion shall be reviewed by the commissioner of health;  (c) The  commissioner  of  health  shall  select  such  contractor  or contractors  that  are best suited to serve the purposes of this section and the needs of recipients; and  (d) All decisions made and approaches taken pursuant to  this  section shall  be  documented  in a procurement record as defined in section one hundred sixty-three of the state finance law.