2023 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, 2029
* (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, 2029
(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 par (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 par (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, 2029
(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 December 31, 2025
(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.
* NB There are 3 par (gg)'s
* (gg) all buprenorphine products, methadone or long acting injectable
naltrexone  for  detoxification  or maintenance treatment of a substance
use  disorder  prescribed  according  to  generally  accepted   national
professional  guidelines  for the treatment of a substance use disorder.
Such medication assisted treatment shall not be  subject  to  any  prior
authorization mandate.
* NB There are 3 par (gg)'s
* (gg)  care  and  services  provided  by mental health counselors and
marriage and family therapists licensed pursuant to article one  hundred
sixty-three  of the education law acting within their scope of practice,
where such services would otherwise be covered under this title. Nothing
in this paragraph shall be construed to modify or expand  the  scope  of
practice  of  a mental health counselor or marriage and family therapist
licensed pursuant to article one hundred sixty-three  of  the  education
law.
* NB There are 3 par (gg)'s
(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.
(ii)  Care  and  services provided by clinical social workers licensed
pursuant to article one hundred fifty-four of the education  law  acting
within  their  scope of practice, where such services would otherwise be
covered under this title.
* (jj) pre-natal and post-partum care and services for the purpose  of
improving  maternal  health outcomes and reduction of maternal mortality
when such services are recommended by a physician or other  health  care
practitioner  authorized  under  title  eight  of the education law, and
provided by qualified practitioners. Such services shall include but not
be limited to nutrition services provided by  certified  dietitians  and
certified  nutritionists;  care  coordination, case management, and peer
support; patient navigation  services;  services  by  licensed  clinical
social  workers;  dyadic  services; Bluetooth-enabled devices for remote
patient monitoring; and other services determined by the commissioner of
health; provided, however, that the provisions of this  paragraph  shall
not take effect unless there is federal financial participation. Nothing
in   this   paragraph  shall  be  construed  to  modify  any  licensure,
certification or scope of practice provision under title  eight  of  the
education law.
* NB There are 2 par (jj)'s
* (jj)   applied   behavior   analysis,   under  article  one  hundred
sixty-seven of  the  education  law,  provided  by  a  person  licensed,
certified,  or otherwise authorized to provide applied behavior analysis
under that article.
* NB There are 2 par (jj)'s
* (kk) community health worker services which shall include,  but  not
be  limited  to,  culturally  appropriate patient education, health care
navigation, care coordination including the development of a care  plan,
patient  advocacy,  and  support  services for the management of chronic
conditions for children  under  age  twenty-one,  and  for  adults  with
health-related  social  needs,  when  such services are recommended by a
physician or other health care practitioner authorized under title eight
of the  education  law,  and  provided  by  qualified  community  health
workers, 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.
* NB There are 2 par (kk)'s
* (kk) care and services of  nutritionists  and  dietitians  certified
pursuant  to article one hundred fifty-seven of the education law acting
within their scope of practice.
* NB There are 2 par (kk)'s
(ll) Chronic Disease Self-Management  Program  for  persons  diagnosed
with arthritis when such services are ordered by a physician, registered
physician's   assistant,  registered  nurse  practitioner,  or  licensed
midwife and provided  by  qualified  educators,  as  determined  by  the
commissioner  of  health,  subject  to  federal financial participation.
Nothing in this paragraph shall be construed to  modify  any  licensure,
certification  or  scope  of practice provision under title eight of the
education law.
* (mm) (i) biomarker precision medical testing  for  the  purposes  of
diagnosis,   treatment,   or   appropriate  management  of,  or  ongoing

monitoring to guide treatment decisions for, a  recipient's  disease  or
condition  when one or more of the following recognizes the efficacy and
appropriateness of biomarker precision medical  testing  for  diagnosis,
treatment,  appropriate management, or guiding treatment decisions for a
recipient's disease or condition:
(1) labeled indications for a test approved or cleared by the  federal
food  and  drug  administration  or  indicated tests for a food and drug
administration approved drug;
(2) centers for  medicare  and  medicaid  services  national  coverage
determinations  or  medicare  administrative  contractor  local coverage
determinations;
(3) nationally recognized clinical practice guidelines; or
(4) peer-reviewed  literature  and  peer-reviewed  scientific  studies
published  in  or accepted for publication by medical journals that meet
nationally recognized requirements for scientific manuscripts  and  that
submit  most  of  their published articles for review by experts who are
not part of the editorial staff.
(ii) As used in this paragraph, the following  terms  shall  have  the
following meanings:
(1)  "Biomarker"  means  a  characteristic  that  is  measured  as  an
indicator of  normal  biological  processes,  pathogenic  processes,  or
responses   to   an  exposure  or  intervention,  including  therapeutic
interventions.
(2) "Biomarker precision medical testing"  means  the  analysis  of  a
patient's  tissue,  blood,  or  other  biospecimen for the presence of a
biomarker.  Biomarker  testing  includes   but   is   not   limited   to
single-analyte   tests   and  multi-plex  panel  tests  performed  at  a
participating  in-network  laboratory  facility  that  is  either   CLIA
certified or CLIA waived by the federal food and drug administration.
(3)   "Nationally   recognized  clinical  practice  guidelines"  means
evidence-based clinical practice guidelines  informed  by  a  systematic
review  of  evidence  and  an  assessment  of the benefits, and risks of
alternative care options intended to optimize patient care developed  by
independent  organizations or medical professional societies utilizing a
transparent methodology and reporting structure and with a  conflict  of
interest policy.
* NB Effective January 1, 2025
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;
* NB Effective until October 1, 2024
* (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, modifications
to  the  list of drugs reimbursable under this paragraph may be filed as
regulations by the commissioner  of  health  without  prior  notice  and
comment; provided, however, that the department will notify enrollees of
any  eliminations to the list of drugs reimbursable under this paragraph
at least sixty days prior to the removal of such drug. Such eliminations
shall be referred to  the  drug  utilization  review  board  established
pursuant  to  section  three  hundred  sixty-nine-bb of this article for
recommendation prior to elimination from the list;
* NB Effective October 1, 2024
(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
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.  Contracts entered into, amended, or extended pursuant to this
subdivision shall not remain in force beyond September 30, 2025.