2023 New York Laws › PBH - Public Health › Article 36 - Home Care Services › 3614 - Payments for Certified Home Health Agency Services, Long Term Home Health Care Programs and AIDS Home Care Programs.

§  3614. Payments for certified home health agency services, long term
home health care programs and AIDS home care programs. 1. No  government
agency  shall  purchase,  pay for or make reimbursement or grants-in-aid
for services provided by a home care services agency, a  provider  of  a
long  term  home  health care program or a provider of an AIDS home care
program unless, at the time the services were provided,  the  home  care
services  agency  possessed  a  valid  certificate  of  approval  or the
provider of a long term home health  care  program  or  AIDS  home  care
program had been authorized by the commissioner to provide such program.
However,  contractual  arrangements  between  a  certified  home  health
agency, provider of a long term home health care program, provider of an
AIDS home care program, or government agency and any home care  services
agency  shall not be prohibited, provided that the certified home health
agency, provider of a long term home health care program, provider of an
AIDS  home  care  program,   or   government   agency   maintains   full
responsibility for the plan of treatment and the care rendered.
2.  Payments  for  certified  home  health agency services or services
provided by long term home  health  care  programs  or  AIDS  home  care
programs  made  by government agencies shall be at rates approved by the
state director of the budget. No provider of a  long  term  home  health
care  program or AIDS home care program shall establish charges for such
program in excess of those established pursuant  to  the  provisions  of
this  section  and  rules  and  regulations  adopted pursuant to section
thirty-six hundred twelve of this article or  subchapter  XVIII  of  the
federal Social Security Act (Medicare).
2-a.  Notwithstanding  any  contrary law, rule or regulation, for rate
periods on and after April first, two thousand eleven, Medicaid rates of
payments for services provided by certified  home  health  agencies,  by
long  term  home  health  care  programs or by an AIDS home care program
shall not reflect a separate payment  for  home  care  nursing  services
provided  to patients diagnosed with Acquired Immune Deficiency Syndrome
(AIDS).
3. Prior to  the  approval  of  such  rates,  the  commissioner  shall
determine  and  certify  to  the  state  director of the budget that the
proposed rate schedules for payments for certified  home  health  agency
services  or services provided by long term home health care programs or
AIDS home care programs are reasonably  related  to  the  costs  of  the
efficient production of such services. In making such certification, the
commissioner  shall  take  into  consideration  the  elements  of  cost,
geographical differentials in the elements of cost considered,  economic
factors  in the area in which the certified home health agency, provider
of a long term home health care program or provider of an AIDS home care
program is located, costs of certified home health  agencies,  providers
of  long  term  home health care programs or providers of AIDS home care
programs of comparable size, and the  need  for  incentives  to  improve
services and institute economies.
3-a. Medically fragile children and medically fragile adults. Rates of
payment  for  continuous nursing services for medically fragile children
and medically fragile adults provided by a certified home health agency,
a licensed home care services agency or a long  term  home  health  care
program  shall  be  established  to  ensure  the  availability  of  such
services, whether provided by registered nurses  or  licensed  practical
nurses  who  are  employed  by  or  under contract with such agencies or
programs, and shall be established at a rate that is at least  equal  to
rates  of  payment  for  such services rendered to patients eligible for
AIDS home care programs; provided, however, that a certified home health
agency, a licensed home care services agency or a long term home  health
care  program  that  receives such enhanced rates for continuous nursing

services for medically fragile children  and  medically  fragile  adults
shall  use such enhanced rates to increase payments to registered nurses
and licensed practical nurses who provide such services. In the case  of
services  provided  by certified home health agencies and long term home
health care programs through contracts with licensed home care  services
agencies, rate increases received by such certified home health agencies
and  long  term  home  health care programs pursuant to this subdivision
shall be reflected in payments made to the registered nurses or licensed
practical nurses employed by such licensed home care  services  agencies
to  render  services  to these children and medically fragile adults. In
establishing rates of payment under this subdivision,  the  commissioner
shall  consider the cost neutrality of such rates as related to the cost
effectiveness of caring for medically  fragile  children  and  medically
fragile  adults  in  a  non-institutional  setting  as  compared  to  an
institutional setting. For the purposes of this subdivision, a medically
fragile child shall mean a child who is at risk  of  hospitalization  or
institutionalization,  including  but  not  limited  to children who are
technologically-dependent  for  life  or  health-sustaining   functions,
require  complex medication regimen or medical interventions to maintain
or to improve their health status or are in need of  ongoing  assessment
or  intervention to prevent serious deterioration of their health status
or medical complications that place their life, health or development at
risk, but who are capable of being cared for at home  if  provided  with
appropriate  home  care  services,  including  but  not  limited to case
management services and continuous nursing  services.  The  commissioner
shall promulgate regulations to implement provisions of this subdivision
and  may  also  direct  the  providers  specified in this subdivision to
provide such additional information and in such form as the commissioner
shall determine is reasonably necessary to implement the  provisions  of
this subdivision.
3-c. Home telehealth. (a) Demonstration rates of payment or fees shall
be  established  for  telehealth  services  provided by a certified home
health agency, a long term home health care program or  AIDS  home  care
program,  or  for  telehealth  services by a licensed home care services
agency under contract with such an agency or program, in order to ensure
the availability of technology-based patient  monitoring,  communication
and  health  management.  Reimbursement for telehealth services provided
pursuant to this section shall  be  provided  only  in  connection  with
Federal Food and Drug Administration-approved and interoperable devices,
and incorporated as part of the patient's plan of care. The commissioner
shall   seek   federal  financial  participation  with  regard  to  this
demonstration initiative.
(b) The purposes of such services shall be to assist in the  effective
monitoring  and  management of patients whose medical, functional and/or
environmental needs can be appropriately  and  cost-effectively  met  at
home  through  the application of telehealth intervention. Reimbursement
provided pursuant to this subdivision shall be for services to  patients
with  conditions  or clinical circumstances associated with the need for
frequent monitoring, and/or the need  for  frequent  physician,  skilled
nursing  or  acute  care services, and where the provision of telehealth
services can appropriately reduce the  need  for  on-site  or  in-office
visits  or  acute or long term care facility admissions. Such conditions
and clinical  circumstances  shall  include,  but  not  be  limited  to,
congestive   heart  failure,  diabetes,  chronic  pulmonary  obstructive
disease,  wound  care,  polypharmacy,  mental  or  behavioral   problems
limiting   self-management,   and   technology-dependent  care  such  as
continuous  oxygen,  ventilator  care,  total  parenteral  nutrition  or
enteral feeding.
(c)  Demonstration  rates  or fees established by the commissioner and
approved by the director of the budget,  for  such  telehealth  services
shall  reflect  telehealth services costs on a monthly basis in order to
account for daily variation in the intensity and complexity of patients'
telehealth  service  needs; provided that such demonstration rates shall
further reflect the cost of the daily operation and  provision  of  such
services,  which  costs shall include the following functions undertaken
by the participating certified home health agency, long term home health
care program, AIDS home care program  or  licensed  home  care  services
agency:
(i) Monitoring of patient vital signs;
(ii) Patient education;
(iii) Medication management;
(iv) Equipment maintenance;
(v) Review of patient trends and/or other changes in patient condition
necessitating professional intervention; and
(vi)  Such other activities as the commissioner may deem necessary and
appropriate to this section.
(d) The commissioner shall  take  such  additional  steps  as  may  be
reasonably  necessary  to  implement  the provision of this subdivision;
provided  however  that  the  commissioner   shall   establish   initial
demonstration  rates  or fees for telehealth services as provided for in
this subdivision by no later than October first, two thousand seven; and
provided, further, however, that the commissioner shall seek  the  input
of  representatives  from  participating  providers and other interested
parties in the development of such rates  or  fees  and  any  applicable
requirements established pursuant to this subdivision.
(e)  The  commissioner  shall,  within  monies  appropriated therefor,
establish a rural home telehealth delivery demonstration  study  program
in  counties  having  a  population  of not less than one hundred thirty
thousand and not more than one hundred forty thousand, according to  the
two thousand ten decennial federal census. The commissioner shall direct
a  home  health  organization  serving  in such county to study patients
receiving telehealth services, pursuant to this  subdivision,  who  have
been  diagnosed  with  congestive heart failure, diabetes and/or chronic
pulmonary obstructive disease,  and  whose  medical,  functional  and/or
environmental   needs   are   appropriately  met  at  home  through  the
application of telehealth services interventions.  Such  a  study  shall
determine the cost of providing telehealth services, the quality of care
provided  through  telehealth  services  and  the  outcomes  of patients
receiving such telehealth services. The commissioner shall reimburse the
home  health  organization  for  conducting  the  study   with   amounts
appropriated  under this subdivision. The home health organization shall
evaluate the findings of the study  and  report  to  the  governor,  the
temporary  president  of  the  senate,  the speaker of the assembly, the
commissioner, and the chair  of  the  legislative  commission  on  rural
resources  on  its  findings  of  providing telehealth services for each
condition, so as  to  provide  the  cost  benchmarks  with  and  without
telehealth care, as well as providing cost benefit measurements in terms
of the quality benefit outcomes for each of the conditions addressed via
telehealth.
4.  The  commissioner  shall notify each certified home health agency,
long term home health care program and AIDS home  care  program  of  its
approved  rates  of  payment  which  shall  be  used  in reimbursing for
services provided  to  persons  eligible  for  payments  made  by  state
governmental  agencies at least thirty days prior to the beginning of an
established rate period for which the rate is to become effective.  Such

notification  shall be made only after approval of rate schedules by the
state director of the budget.
* 5. (a) During the period July first, nineteen hundred ninety through
December  thirty-first,  nineteen  hundred  ninety,  the  period January
first,  nineteen  hundred  ninety-one  through  December   thirty-first,
nineteen hundred ninety-one and for each calendar year period commencing
on  January  first thereafter, rates of payment by governmental agencies
established  in  accordance  with  subdivision  three  of  this  section
applicable  for  services  provided by certified home health agencies to
individuals eligible for medical assistance pursuant to title eleven  of
article  five  of  the  social  services  law  for certified home health
agencies which can demonstrate, on forms provided by  the  commissioner,
losses from a disproportionate share of bad debt and charity care during
the  base  year  period as used in determining such rates may include an
allowance determined in accordance with this subdivision to reflect  the
needs  of  the  certified home health agency for the financing of losses
resulting from bad debt and the cost of charity care.  Losses  resulting
from  bad  debt  and the delivery of charity care shall be determined by
the commissioner considering, but not limited to, such  factors  as  the
losses resulting from bad debt and the costs of charity care provided by
the certified home health agency and the availability of other financial
support, including state local assistance public health aid, to meet the
losses  resulting  from  bad  debt  and the costs of charity care of the
certified home health agency. The bad debt and  charity  care  allowance
for a certified home health agency for a rate period shall be determined
by  the commissioner in accordance with rules and regulations adopted by
the state hospital review and  planning  council  and  approved  by  the
commissioner,  and  shall be consistent with the purposes for which such
allowances  are  authorized  for  general  hospitals  pursuant  to   the
provisions  of  article  twenty-eight  of  this  chapter  and  rules and
regulations  promulgated  by   the   commissioner.   For   purposes   of
distribution  of  bad  debt  and  charity  care  allowances  to eligible
certified home health agencies, the  commissioner,  in  accordance  with
rules  and regulations adopted by the state hospital review and planning
council and approved by the commissioner, may limit application of a bad
debt and charity care allowance to a particular home care services  unit
or  units  of  service, such as nursing service. A certified home health
agency applying for a bad debt and charity care  allowance  pursuant  to
this   subdivision   shall   provide   assurances  satisfactory  to  the
commissioner that it shall  undertake  reasonable  efforts  to  maintain
financial   support  from  community  and  public  funding  sources  and
reasonable efforts to collect payments for  services  from  third  party
insurance  payors,  governmental  payors and self-paying patients. To be
eligible for an allowance pursuant to this subdivision, a certified home
health agency shall: have professional assistance available on  a  seven
day  per week, twenty-four hour per day basis to all registered clients;
demonstrate  compliance  with   minimum   charity   care   certification
obligation  levels established pursuant to rules and regulations adopted
by the state hospital review and planning council and  approved  by  the
commissioner;  and  provide to the commissioner and maintain a community
service plan which outlines  the  agency's  organizational  mission  and
commitment  to  meet the home care needs of the community, in accordance
with paragraph (h) of this subdivision.
(b) The total amount of funds to be allocated and distributed for  bad
debt  and  charity  care  allowances  to  eligible certified home health
agencies for a rate period in accordance with this subdivision shall  be
limited  to  an annual aggregate amount of six million two hundred fifty
thousand dollars; provided, however, that the amount of funds  allocated

for  distribution  to  eligible publicly sponsored certified home health
agencies for bad debt and  charity  care  allowances  shall  not  exceed
thirty-five  percent of total available funds for all eligible certified
home  health  agencies  for  bad  debt  and  charity care allowances. In
establishing an apportionment of available funds to  publicly  sponsored
certified  home  health  agencies in accordance with this paragraph, the
commissioner shall promulgate regulations which may include, but not  be
limited  to,  such factors as the ratio of public to nonpublic base year
period bad debt and charity care provided  by  eligible  certified  home
health  agencies  and differences in costs for delivering such services.
Certified home health agencies provided by general hospitals  shall  not
be eligible for any portion of the allocation pursuant to this paragraph
for  the  period of July first, nineteen hundred ninety through December
thirty-first, nineteen hundred ninety-four, or for such longer period if
extended by law, based on the projected  availability  of  an  equitable
level  of  bad debt and charity care coverage for such agencies provided
pursuant to chapter two of the laws of nineteen hundred eighty-eight and
any future amendments thereto.
(c) No certified home health agency may receive a bad debt and charity
care allowance in accordance with this subdivision in  an  amount  which
exceeds  its  need  for  the  financing  of  losses  associated with the
delivery of bad debt and charity care.
(d) A nominal payment amount for the financing  of  losses  associated
with  the  delivery of bad debt and charity care will be established for
each eligible certified home health agency. The nominal  payment  amount
shall  be  calculated  as  the  sum  of  the dollars attributable to the
application of an incrementally increasing nominal  coverage  percentage
of  base year period losses associated with the delivery of bad debt and
charity care for percentage increases in the relationship  between  base
year  period losses associated with the delivery of bad debt and charity
care and base  year  period  total  operating  costs  according  to  the
following scale:
 
% of bad debt and charity care losses to       nominal percentage of
total operating cost                       loss coverage
Up to 3%                                    50%
3 - 6%                                    75%
6% +                                 100%
 
If  the  sum  of  the nominal payment amounts for all eligible voluntary
non-profit and private proprietary certified home health agencies or for
all eligible public certified home health  agencies  is  less  than  the
amount  allocated  for  bad debt and charity care allowances pursuant to
paragraph (b)  of  this  subdivision  for  such  certified  home  health
agencies  respectively,  the  nominal  coverage percentages of base year
period losses associated with the delivery of bad debt and charity  care
pursuant  to  this  scale  may be increased to not more than one hundred
percent for voluntary non-profit and private proprietary certified  home
health  agencies  or  for  public  certified  home  health  agencies  in
accordance with rules and regulations  adopted  by  the  state  hospital
review and planning council and approved by the commissioner.
(e)  The  bad  debt  and  charity  care  allowance  for  each eligible
voluntary non-profit  and  private  proprietary  certified  home  health
agency  shall be based on the dollar value of the result of the ratio of
total funds allocated for bad  debt  and  charity  care  allowances  for
certified  home  health  agencies  pursuant  to  paragraph  (b)  of this
subdivision to the total  statewide  nominal  payment  amounts  for  all
eligible  certified  home  health agencies determined in accordance with

paragraph (d) of this subdivision applied to the nominal payment  amount
for each such certified home health agency.
(f)  The  bad debt and charity care allowance for each eligible public
certified home health agency shall be based on the dollar value  of  the
result  of  the  ratio of total funds allocated for bad debt and charity
care allowances for public certified home health  agencies  pursuant  to
paragraph (b) of this subdivision to the total statewide nominal payment
amounts   for   all  eligible  public  certified  home  health  agencies
determined in accordance with paragraph (d) of this subdivision  applied
to  the  nominal  payment  amount  for  each  such certified home health
agency.
(g) Certified home health agencies shall  furnish  to  the  department
such  reports  and information as may be required by the commissioner to
assess the cost, quality, access to, effectiveness and efficiency of bad
debt and charity care provided. The state hospital review  and  planning
council  shall  adopt  rules and regulations, subject to the approval of
the  commissioner,  to  establish  uniform  reporting   and   accounting
principles  designed  to enable certified home health agencies to fairly
and accurately determine and report the costs of bad  debt  and  charity
care.  In  order  to  be  eligible  for  an  allowance  pursuant to this
subdivision, a certified home health agency must be in  compliance  with
bad debt and charity care reporting requirements.
(h)  Community  service  plans.  (i) The governing body of a certified
home health agency  shall  issue  an  organizational  mission  statement
identifying  at  a minimum the populations and communities served by the
agency and the agency's commitment to meeting the home care needs of the
community.  The  commissioner  shall   take   into   consideration   the
limitations  of  agency  size  and  resources,  and allow flexibility in
complying with the provisions of this section.
(ii) The governing body of the certified home health agency  shall  at
least once every three years:
(A) review and amend as necessary the agency's mission statement;
(B)  solicit the views of the communities served by the agency on such
issues as the agency's performance and service priorities;
(C) demonstrate the agency's operational and financial  commitment  to
meeting  community  home care needs, to provide charity care service and
to improve access to home care services by the underserved; and
(D) prepare and make available to the public a statement  showing  the
provision  of free, reduced charge and/or other services of a charitable
or community nature.
(iii) The governing body of the certified  home  health  agency  shall
annually  make  available  to  the  public  a  review  of  the  agency's
performance in meeting the home care needs of the  community,  providing
charity care services, and improving access to home care services by the
underserved.
(iv) The governing body of the certified home health agency shall file
with  the  commissioner  its  mission  statement, its annual performance
review, and at least every three years a report detailing amendments  to
the  statement  reflecting  changes  in  the  agency's  operational  and
financial commitment to meeting the home care needs  of  the  community,
providing  charity  care  services,  and  improving  access to home care
services by the underserved.
(v) The  commissioner  shall  promulgate  regulations  establishing  a
revised percentage for the charity care requirement.
(i)  This  subdivision  shall be effective if, and as long as, federal
financial  participation  is  available  for   expenditures   made   for
beneficiaries  eligible  for  medical  assistance under title XIX of the

federal social security act based  upon  the  allowances  determined  in
accordance with this subdivision.
* NB Expires June 30, 2025
6.  (a)  The  commissioner shall, subject to the approval of the state
director of  the  budget,  establish  capitated  rates  of  payment  for
services  provided  by  assisted living programs as defined by paragraph
(a) of subdivision one of section four hundred sixty-one-l of the social
services law.  Such rates of payment shall be related to costs  incurred
by  residential health care facilities. The rates shall reflect the wage
equalization factor established  by  the  commissioner  for  residential
health  care  facilities  in  the  region  in  which the assisted living
program  is  provided  and  real  property  capital  construction  costs
associated  with  the  construction  of  a free-standing assisted living
program such rate shall include a payment equal to the cost of  interest
owed  and  depreciation costs of such construction. The rates shall also
reflect the efficient provision of a quality and quantity of services to
patients  in  such  residential  health  care  facilities,  with   needs
comparable  to  the  needs  of  residents served in such assisted living
programs. Such rates of payment shall be equal to fifty percent  of  the
amounts  which  otherwise  would have been expended, based upon the mean
prices for the first of July,  nineteen  hundred  ninety-two  (utilizing
nineteen  hundred  eighty-three  costs)  for freestanding, low intensity
residential health care facilities with less than  three  hundred  beds,
and  for  years  subsequent to nineteen hundred ninety-two, adjusted for
inflation in accordance  with  the  provisions  of  subdivision  ten  of
section  twenty-eight  hundred  seven-c  of this chapter, to provide the
appropriate level of care for such residents in residential health  care
facilities  in  the  applicable wage equalization factor regions plus an
amount  equal  to  capital  construction  costs  associated   with   the
construction  of  an assisted living program facility as provided for in
this subdivision.  The commissioner shall also  promulgate  regulations,
and  may  promulgate emergency regulations, to provide for reimbursement
of the cost of preadmission assessments conducted directly  by  assisted
living programs.
(b)   For   purposes   of  this  subdivision,  real  property  capital
construction costs shall only  be  included  in  rates  of  payment  for
assisted  living  programs  if: the facility houses exclusively assisted
living program beds authorized pursuant to paragraph (j) of  subdivision
three  of section four hundred sixty-one-l of the social services law or
(i) the facility is operated by a not-for-profit corporation;  (ii)  the
facility  commenced operation after nineteen hundred ninety-eight and at
least ninety-five percent of the certified approved beds are provided to
residents who are subject to the assisted living program; and (iii)  the
assisted living program is in a county with a population of no less than
two  hundred  eighty thousand persons. The methodology used to calculate
the  rate  for  such  capital  construction  costs  shall  be  the  same
methodology   used  to  calculate  the  capital  construction  costs  at
residential health care facilities for such  costs,  provided  that  the
commissioner  may  adopt  rules and regulations which establish a cap on
real property capital construction costs for those facilities that house
exclusively  assisted  living  program  beds  authorized   pursuant   to
paragraph  (j)  of subdivision three of section four hundred sixty-one-l
of the social services law.
(c) The department shall conduct a study of the use of  resident  data
collected  from a uniform assessment tool identified by the commissioner
with respect to its effectiveness in evaluation and adjusting  rates  of
payment  for  assisted  living programs. On or before July thirty-first,
two thousand eleven, the commissioner shall provide  the  governor,  the

speaker  of the assembly, the temporary president of the senate, and the
chairpersons of the assembly and senate health committees with a  report
setting forth the conclusions of such study.
7.  * Notwithstanding any inconsistent provision of law or regulation,
for purposes of establishing rates of payment by  governmental  agencies
for  certified home health agencies for the period April first, nineteen
hundred ninety-five  through  December  thirty-first,  nineteen  hundred
ninety-five  and  for  rate periods beginning on or after January first,
nineteen hundred ninety-six, the reimbursable base  year  administrative
and  general  costs  of  a  provider  of  services  shall not exceed the
statewide average of total reimbursable  base  year  administrative  and
general  costs  of  such  providers  of  services.  The  amount  of such
reduction in certified home health agency rates of payments made  during
the  period  April  first,  nineteen  hundred  ninety-five through March
thirty-first, nineteen hundred  ninety-six  shall  be  adjusted  in  the
nineteen  hundred  ninety-six  rate period on a pro-rata basis, if it is
determined upon post-audit review by June  fifteenth,  nineteen  hundred
ninety-six  and  reconciliation  that  the  savings for the state share,
excluding the federal and local government shares, of medical assistance
payments pursuant to title eleven of article five of the social services
law based on the limitation of such payment pursuant to this subdivision
is in excess of one million five hundred thousand  dollars  or  is  less
than  one  million five hundred thousand dollars for payments made on or
before March thirty-first, nineteen hundred ninety-six  to  reflect  the
amount  by which such savings are in excess of or lower than one million
five hundred thousand dollars. For rate periods  on  and  after  January
first,  two  thousand  five  through December thirty-first, two thousand
six, there shall be no such reconciliation of the amount of  savings  in
excess of or lower than one million five hundred thousand dollars.
* NB Effective until March 31, 2025
* Notwithstanding  any  inconsistent provision of law or regulation to
the  contrary,  for  purposes  of  establishing  rates  of  payment   by
governmental  agencies  for certified home health agencies and long term
home health care programs for rate period beginning on or after  January
first, nineteen hundred ninety-five, the department of health may not by
rule  or  regulation limit the reimbursable base year administrative and
general costs of a provider of services to a percentage which  is  other
than thirty percent of total reimbursable base year operational costs of
such provider of services.
* NB Effective March 31, 2025
No such limit shall be applied to a provider of services reimbursed on
an  initial  budget  basis,  or  a  new  provider,  excluding changes in
ownership or changes in name, who begins operations in the year prior to
the year which is used as a base year in determining rates of payment.
For  the  purposes  of  this  subdivision,  reimbursable   base   year
operational costs shall mean those base year operational costs remaining
after  application of all other efficiency standards, including, but not
limited to, peer group cost ceilings or guidelines.
The  limitation  on  reimbursement  for  provider  administrative  and
general  expenses  provided  by this subdivision shall be expressed as a
percentage reduction for the rate promulgated  by  the  commissioner  to
each certified home health agency and long term home health care program
provider.
7-a.  Notwithstanding any inconsistent provision of law or regulation,
for the purposes  of  establishing  rates  of  payment  by  governmental
agencies  for  long  term home health care programs for the period April
first, two thousand five, through December  thirty-first,  two  thousand
five,  and  for the period January first, two thousand six through March

thirty-first, two thousand seven, and on  and  after  April  first,  two
thousand seven through March thirty-first, two thousand nine, and on and
after  April  first,  two  thousand nine through March thirty-first, two
thousand  eleven,  and  on  and  after  April first, two thousand eleven
through March thirty-first, two thousand thirteen and on and after April
first, two thousand thirteen through March  thirty-first,  two  thousand
fifteen,  and on and after April 1st, two thousand fifteen through March
thirty-first,  two  thousand  seventeen  the  reimbursable   base   year
administrative  and  general  costs  of a provider of services shall not
exceed  the  statewide  average  of   total   reimbursable   base   year
administrative and general costs of such providers of services.
No such limit shall be applied to a provider of services reimbursed on
an  initial  budget  basis,  or  a  new  provider,  excluding changes in
ownership or changes in name, who begins operations in the year prior to
the year which is used as a base year in determining rates of payment.
For  the  purposes  of  this  subdivision,  reimbursable   base   year
operational costs shall mean those base year operational costs remaining
after  application of all other efficiency standards, including, but not
limited to, cost guidelines.
The  limitation  on  reimbursement  for  provider  administrative  and
general  expenses  provided  by this subdivision shall be expressed as a
percentage reduction for the rate promulgated  by  the  commissioner  to
each long term home health care program provider.
8.  (a)  Notwithstanding  any  inconsistent  provision of law, rule or
regulation and subject to  the  provisions  of  paragraph  (b)  of  this
subdivision  and to the availability of federal financial participation,
the commissioner shall adjust medical assistance rates  of  payment  for
services  provided  by  certified home health agencies for such services
provided to children under  eighteen  years  of  age  and  for  services
provided  to a special needs population of medically complex and fragile
children, adolescents and young disabled  adults  by  a  CHHA  operating
under  a pilot program approved by the department, long term home health
care programs and AIDS  home  care  programs  in  accordance  with  this
paragraph  and  paragraph  (b)  of  this  subdivision  for  purposes  of
improving  recruitment  and  retention  of  non-supervisory  home   care
services  workers  or any worker with direct patient care responsibility
in the following amounts for services provided  on  and  after  December
first, two thousand two.
(i)  rates  of  payment  by  governmental  agencies for certified home
health agency services for such  services  provided  to  children  under
eighteen  years  of  age  and  for  services provided to a special needs
population of medically complex and fragile  children,  adolescents  and
young disabled adults by a CHHA operating under a pilot program approved
by  the  department  (including services provided through contracts with
licensed home care  services  agencies)  shall  be  increased  by  three
percent;
(ii)  rates  of  payment  by  governmental agencies for long term home
health  care  program  services  (including  services  provided  through
contracts  with licensed home care services agencies) shall be increased
by three percent; and
(iii) rates of payment by governmental agencies  for  AIDS  home  care
programs  (including  services  provided through contracts with licensed
home care services agencies) shall be increased by three percent.
(b) (i) Providers which have their rates  adjusted  pursuant  to  this
subdivision  shall use such funds solely for the purposes of recruitment
and retention of non-supervisory  home  care  services  workers  or  any
worker  with  direct  patient  care  responsibility. Such purposes shall
include the recruitment  and  retention  of  non-supervisory  home  care

services  workers  or any worker with direct patient care responsibility
employed in licensed home care services  agencies  under  contract  with
such  providers.  Providers are prohibited from using such funds for any
other purpose.
(ii)  Each  such  provider  shall  submit,  at  a time and in a manner
determined by the commissioner, a written certification  attesting  that
such  funds  will  be  used  solely  for  the purpose of recruitment and
retention of non-supervisory home care services workers  or  any  worker
with  direct patient care responsibility. The commissioner is authorized
to audit each such  provider  to  ensure  compliance  with  the  written
certification  required  by  this subdivision and shall recoup any funds
determined to have been used for purposes  other  than  recruitment  and
retention  of  non-supervisory  home care services workers or any worker
with direct patient care responsibility. Such  recoupment  shall  be  in
addition to any other penalties provided by law.
(iii)  In  the  case  of  services  provided by such providers through
contracts with licensed home  care  services  agencies,  rate  increases
received  by  such  providers  pursuant  to  this  subdivision  shall be
reflected, consistent with the purposes  of  subparagraph  (i)  of  this
paragraph,  in  either  the  fees  paid  or  benefits  or other supports
provided to non-supervisory home care services  workers  or  any  worker
with direct patient care responsibility of such contracted licensed home
care  services  agencies and such fees, benefits or other supports shall
be proportionate to the contracted volume of  services  attributable  to
each  contracted  agency.  Such  agencies shall submit to providers with
which they contract written certifications  attesting  that  such  funds
will  be  used  solely  for the purposes of recruitment and retention of
non-supervisory home care services workers or  any  worker  with  direct
patient   care   responsibility   and  shall  maintain  in  their  files
expenditure plans specifying how  such  funds  will  be  used  for  such
purposes.  The  commissioner  is  authorized  to  audit such agencies to
ensure compliance with such certifications  and  expenditure  plans  and
shall  recoup  any funds determined to have been used for purposes other
than those set forth in this subdivision. Such  recoupment  will  be  in
addition to any other penalties provided by law.
(iv) Funds under this subdivision are not intended to supplant support
provided by local government.
9.  Notwithstanding  any  law to the contrary, the commissioner shall,
subject to the availability of federal financial  participation,  adjust
medical  assistance  rates of payment for certified home health agencies
for such services provided to children under eighteen years of  age  and
for services provided to a special needs population of medically complex
and  fragile  children,  adolescents and young disabled adults by a CHHA
operating under a pilot program approved by the  department,  long  term
home  health care programs, AIDS home care programs established pursuant
to this article, hospice programs established  under  article  forty  of
this  chapter  and for managed long term care plans and approved managed
long term care operating demonstrations as defined in section forty-four
hundred three-f of this chapter. Such adjustments shall be for  purposes
of improving recruitment, training and retention of home health aides or
other personnel with direct patient care responsibility in the following
aggregate amounts for the following periods:
(a)  for  the  period  June  first,  two thousand six through December
thirty-first, two thousand six, fifty million dollars;
(b) for the period January first,  two  thousand  seven  through  June
thirtieth, two thousand seven, fifty million dollars;
(c)  for  the  period  July  first,  two  thousand seven through March
thirty-first, two thousand eight, up to one hundred million dollars;
(d) for the period April  first,  two  thousand  eight  through  March
thirty-first, two thousand nine, up to one hundred million dollars;
(e)  for  the  period  April  first,  two  thousand nine through March
thirty-first, two thousand ten, up to one hundred million dollars;
(f) for the  period  April  first,  two  thousand  ten  through  March
thirty-first, two thousand eleven, up to one hundred million dollars;
(g)  for  the  period  April  first, two thousand eleven through March
thirty-first, two thousand twelve, up to one hundred million dollars;
(h) for the period April first,  two  thousand  twelve  through  March
thirty-first, two thousand thirteen, up to one hundred million dollars;
(i)  for  the  period April first, two thousand thirteen through March
thirty-first, two thousand fourteen, up to one hundred million dollars;
(j) for the period April first, two thousand  fourteen  through  March
thirty-first, two thousand fifteen, up to one hundred million dollars;
(k)  for  the  period  April first, two thousand fifteen through March
thirty-first, two thousand sixteen, up to one hundred million dollars;
(l) for the period April first, two  thousand  sixteen  through  March
thirty-first, two thousand seventeen, up to one hundred million dollars;
(m)  for  the period April first, two thousand seventeen through March
thirty-first, two thousand eighteen, up to one hundred million dollars;
(n) for the period April first, two thousand  eighteen  through  March
thirty-first, two thousand nineteen, up to one hundred million dollars;
(o)  for  the  period April first, two thousand nineteen through March
thirty-first, two thousand twenty, up to one hundred million dollars;
(p) for the period April first,  two  thousand  twenty  through  March
thirty-first,  two  thousand  twenty-one,  up  to  one  hundred  million
dollars;
(q) for the period April first, two thousand twenty-one through  March
thirty-first,  two  thousand  twenty-two,  up  to  one  hundred  million
dollars;
(r) for the period April first, two thousand twenty-two through  March
thirty-first,  two  thousand  twenty-three,  up  to  one hundred million
dollars;
(s) for the period April  first,  two  thousand  twenty-three  through
March  thirty-first, two thousand twenty-four, up to one hundred million
dollars;
(t) for the period April first, two thousand twenty-four through March
thirty-first, two  thousand  twenty-five,  up  to  one  hundred  million
dollars;
(u) for the period April first, two thousand twenty-five through March
thirty-first,  two  thousand  twenty-six,  up  to  one  hundred  million
dollars.
10. (a) Such adjustments to  rates  of  payments  shall  be  allocated
proportionally  based  on  each  certified home health agency, long term
home health care program, AIDS home  care  and  hospice  program's  home
health  aide or other direct care services total annual hours of service
provided to medicaid patients, as reported in each  such  agency's  most
recently available cost report as submitted to the department or for the
purpose of the managed long term care program a suitable proxy developed
by  the department in consultation with the interested parties. Payments
made pursuant to  this  section  shall  not  be  subject  to  subsequent
adjustment or reconciliation; provided that such adjustments to rates of
payments  to  certified  home  health  agencies  shall  only be for that
portion of services provided to children under eighteen years of age and
for services provided to a special needs population of medically complex
and fragile children, adolescents and young disabled adults  by  a  CHHA
operating under a pilot program approved by the department.
(b)  Programs  which  have  their  rates  adjusted  pursuant  to  this
subdivision shall use such funds solely for the purposes of recruitment,
training and retention of non-supervisory home care services workers  or
other  personnel  with  direct patient care responsibility. Such purpose
shall include the recruitment, training and retention of non-supervisory
home  care  services  workers  or  any  worker  with direct patient care
responsibility employed in licensed home care  services  agencies  under
contract  with  such  agencies.  Such agencies are prohibited from using
such fund for any other purpose. For purposes  of  the  long  term  home
health  care  program,  such  payment  shall  be treated as supplemental
payments and not effect any current  cost  cap  requirement.  Each  such
agency  shall  submit,  at  a  time  and  in  a manner determined by the
commissioner, a written certification attesting that such funds will  be
used  solely  for  the purpose of recruitment, training and retention of
non-supervisory home health aides or any personnel with  direct  patient
care  responsibility.  The commissioner is authorized to audit each such
agency or program to ensure compliance with  the  written  certification
required  by  this  subdivision and shall recoup any funds determined to
have been used for purposes other  than  recruitment  and  retention  of
non-supervisory home health aides or other personnel with direct patient
care  responsibility.  Such recoupment shall be in addition to any other
penalties provided by law.
(c) In the case of services provided  by  such  agencies  or  programs
through  contracts  with  licensed  home  care  services  agencies, rate
increases received  by  such  agencies  or  programs  pursuant  to  this
subdivision  shall  be  reflected,  consistent with the purposes of this
subdivision, in either the fees paid  or  benefits  or  other  supports,
including training, provided to non-supervisory home health aides or any
other   personnel  with  direct  patient  care  responsibility  of  such
contracted licensed home care services agencies and such fees,  benefits
or  other  supports  shall  be proportionate to the contracted volume of
services attributable  to  each  contracted  agency.  Such  agencies  or
programs  shall  submit  to  providers  with which they contract written
certifications attesting that such funds will be  used  solely  for  the
purposes  of recruitment, training and retention of non-supervisory home
health aides or other personnel with direct patient care  responsibility
and  shall maintain in their files expenditure plans specifying how such
funds will be used for such purposes. The commissioner is authorized  to
audit   such  agencies  or  programs  to  ensure  compliance  with  such
certifications  and  expenditure  plans  and  shall  recoup  any   funds
determined  to have been used for purposes other than those set forth in
this subdivision. Such recoupment shall be  in  addition  to  any  other
penalties provided by law.
(d)  Funds under this subdivision are not intended to supplant support
provided by local government.
11. (a) Notwithstanding any inconsistent provision  of  law,  rule  or
regulation   and  subject  to  the  availability  of  federal  financial
participation, the commissioner is authorized and directed to  implement
a  program  whereby  he  or she shall adjust medical assistance rates of
payment for services provided by certified home  health  agencies,  long
term home health care programs, AIDS home care programs and providers of
personal care services and/or providers of private duty nursing services
under  the  social  services law in accordance with this subdivision for
purposes of  enhancing  the  provision,  accessibility,  quality  and/or
efficiency of home care services. Such rate adjustments shall be for the
purposes  of  assisting  such  providers,  located  in  social  services
districts which do not include a city with  a  population  of  over  one
million persons, in meeting the cost of:
(i) Increased use of technology in the delivery of services, including
telehealth   and  clinical  and  administrative  management  information
system;
(ii)  Specialty training of direct service personnel in dementia care,
pediatric care and/or the care of other conditions or  populations  with
complex needs;
(iii)  Increased  auto and travel expenses associated with rising fuel
prices, including the increased cost of  providing  services  in  remote
areas; and/or
(iv) Providing enhanced access to care for high need populations;
(v)   Such  other  purposes  related  to  the  provision  of  quality,
accessible home care services as the commissioner may deem appropriate.
(b) The commissioner shall increase the medical  assistance  rates  of
payment  pursuant to this subdivision in an amount up to an aggregate of
sixteen million dollars for the period  June  first,  two  thousand  six
through  March  thirty-first,  two  thousand  seven, and sixteen million
dollars for the period April first, two  thousand  seven  through  March
thirty-first,  two  thousand  eight, and sixteen million dollars for the
period April first, two thousand eight through March  thirty-first,  two
thousand  nine, provided however that if federal financial participation
is not available for rate adjustments pursuant to this subdivision  such
aggregate  amount  shall not exceed eight million dollars, and provided,
further, however, that for  purposes  of  long  term  home  health  care
programs,  such  payments provided pursuant to this subdivision shall be
treated as supplemental payments and shall not effect any  current  cost
cap requirement.
(c) Such rate adjustments shall be in the form of a uniform percentage
add-on  to  the  rates,  as  determined  by the department, based on the
proportion of the total allocated adjustment dollars, as  determined  in
paragraph  (b)  of  this subdivision, to the total medicaid expenditures
for services provided for certified home health agencies, long-term home
health care programs, AIDS nursing, personal care assistants and private
duty nurses services in local social services  districts  which  do  not
include a city with a population over one million.
12.   (a)   Notwithstanding  any  inconsistent  provision  of  law  or
regulation  and  subject  to  the  availability  of  federal   financial
participation,  effective  on and after April first, two thousand eleven
through March thirty-first, two thousand twelve,  rates  of  payment  by
government  agencies  for  services  provided  by  certified home health
agencies, except for such services provided to children  under  eighteen
years  of  age  and  other  discrete  groups as may be determined by the
commissioner pursuant to regulations, shall reflect ceiling  limitations
determined  in accordance with this subdivision, provided, however, that
at  the  discretion  of  the  commissioner  such  ceilings  may,  as  an
alternative,  be  applied to payments for services provided on and after
April first, two thousand eleven, except for such services  provided  to
children  and  other  discrete  groups  as  may  be  determined  by  the
commissioner pursuant to regulations. In determining  such  payments  or
rates  of  payment,  agency ceilings shall be established. Such ceilings
shall be applied to payments or rates  of  payment  for  certified  home
health  agency  services  as  established  pursuant  to this section and
applicable regulations.  Ceilings shall be based on a blend of:  (i)  an
agency's two thousand nine average per patient Medicaid claims, weighted
at  a  percentage  as  determined  by the commissioner; and (ii) the two
thousand nine statewide average per patient Medicaid claims adjusted  by
a  regional  wage  index  factor  and  an agency patient case mix index,
weighted at  a  percentage  as  determined  by  the  commissioner.  Such
ceilings  will  be  effective  April  first, two thousand eleven through

March thirty-first, two thousand twelve. An interim payment or  rate  of
payment  adjustment effective April first, two thousand eleven, shall be
applied to agencies with projected average per patient Medicaid  claims,
as  determined  by  the  commissioner,  to  be over their ceilings. Such
agencies shall have their  payments  or  rates  of  payment  reduced  to
reflect the amount by which such claims exceed their ceilings.
(b)  Ceiling  limitations determined pursuant to paragraph (a) of this
subdivision shall be subject to reconciliation. In  determining  payment
or  rate  of  payment adjustments based on such reconciliation, adjusted
agency ceilings shall be established. Such adjusted  ceilings  shall  be
based  on  a  blend  of:  (i)  an agency's two thousand nine average per
patient Medicaid claims  adjusted  by  the  percentage  of  increase  or
decrease  in  such  agency's patient case mix from the two thousand nine
calendar year to the annual period  April  first,  two  thousand  eleven
through   March   thirty-first,  two  thousand  twelve,  weighted  at  a
percentage as determined by the commissioner; and (ii) the two  thousand
nine  statewide  average  per  patient  Medicaid  claims  adjusted  by a
regional wage index factor and the agency's patient case mix  index  for
the  annual  period  April  first,  two  thousand  eleven  through March
thirty-first,  two  thousand  twelve,  weighted  at  a   percentage   as
determined  by  the  commissioner. Such adjusted agency ceiling shall be
compared to actual Medicaid paid claims for the period April first,  two
thousand  eleven  through  March  thirty-first,  two thousand twelve. In
those instances when an agency's actual per patient Medicaid claims  are
determined  to  exceed the agency's adjusted ceiling, the amount of such
excess shall be due from each such  agency  to  the  state  and  may  be
recouped by the department in a lump sum amount or through reductions in
the  Medicaid  payments  due  to the agency. In those instances where an
interim payment or rate of payment adjustment was applied to  an  agency
in  accordance with paragraph (a) of this subdivision, and such agency's
actual per patient Medicaid claims are determined to be  less  than  the
agency's  adjusted ceiling, the amount by which such Medicaid claims are
less than the agency's adjusted ceiling shall be remitted to  each  such
agency  by the department in a lump sum amount or through an increase in
the Medicaid payments due to the agency.
(c) Interim payment or rate of payment adjustments  pursuant  to  this
subdivision shall be based on Medicaid paid claims, as determined by the
commissioner,  for  services  provided  by agencies in the base year two
thousand nine. Amounts due from reconciling rate  adjustments  shall  be
based  on  Medicaid  paid claims, as determined by the commissioner, for
services provided by agencies in the base year  two  thousand  nine  and
Medicaid  paid  claims,  as determined by the commissioner, for services
provided by agencies in  the  reconciliation  period  April  first,  two
thousand  eleven  through  March  thirty-first,  two thousand twelve. In
determining case mix, each patient shall be classified  using  a  system
based on measures which may include, but not be limited to, clinical and
functional  measures,  as reported on the federal Outcome and Assessment
Information Set (OASIS), as may be amended.
(d) The commissioner may require agencies to collect  and  submit  any
data  required  to  implement  the  provisions  of this subdivision. The
commissioner may promulgate regulations to implement the  provisions  of
this subdivision.
(e)  Payments  or  rate  of payment adjustments determined pursuant to
this subdivision shall, for the period April first, two thousand  eleven
through  March  thirty-first,  two  thousand  twelve,  be  retroactively
reconciled  utilizing  the  methodology  in  paragraph   (b)   of   this
subdivision and utilizing actual paid claims from such period.
(f)  Notwithstanding  any  inconsistent provision of this subdivision,
payments  or  rate  of  payment  adjustments  made  pursuant   to   this
subdivision shall not result in an aggregate annual decrease in Medicaid
payments  to  providers subject to this subdivision that is in excess of
two  hundred  million dollars, as determined by the commissioner and not
subject to subsequent adjustment, and the commissioner shall  make  such
adjustments  to  such  payments  or rates of payment as are necessary to
ensure that such aggregate limits on payment decreases are not exceeded.
13.  (a)  Notwithstanding  any  inconsistent  provision  of   law   or
regulation   and  subject  to  the  availability  of  federal  financial
participation, effective April first, two thousand twelve through  March
thirty-first,  two thousand twenty-five, payments by government agencies
for services provided by certified home health agencies, except for such
services provided to children under eighteen  years  of  age  and  other
discreet  groups  as  may  be determined by the commissioner pursuant to
regulations, shall be based on episodic payments. In  establishing  such
payments, a statewide base price shall be established for each sixty day
episode  of  care  and  adjusted  by a regional wage index factor and an
individual patient case mix index. Such episodic payments may be further
adjusted  for  low  utilization  cases  and  to  reflect  a   percentage
limitation  of  the  cost for high-utilization cases that exceed outlier
thresholds of such payments.
(b) Initial base year episodic payments shall  be  based  on  Medicaid
paid  claims,  as determined and adjusted by the commissioner to achieve
savings comparable to the prior state fiscal year, for services provided
by all certified home health agencies in  the  base  year  two  thousand
nine.  Subsequent  base  year episodic payments may be based on Medicaid
paid claims for services provided by all certified home health  agencies
in  a  base  year  subsequent to two thousand nine, as determined by the
commissioner, provided, however, that such base year adjustment shall be
made not less frequently than every three  years.  In  determining  case
mix,  each  patient shall be classified using a system based on measures
which may include, but not limited to, clinical and functional measures,
as reported on  the  federal  Outcome  and  Assessment  Information  Set
(OASIS), as may be amended.
(c)  The  commissioner  may require agencies to collect and submit any
data required  to  implement  this  subdivision.  The  commissioner  may
promulgate regulations to implement the provisions of this subdivision.
14.  (a)  Notwithstanding any contrary provision of law and subject to
the availability of federal financial participation, for periods on  and
after  March  first, two thousand fourteen the commissioner shall adjust
Medicaid rates of payment for services provided by certified home health
agencies to address cost increases  stemming  from  the  wage  increases
required  by  implementation  of  the  provisions  of section thirty-six
hundred fourteen-c of this article. Such rate adjustments shall be based
on a comparison, as  determined  by  the  commissioner,  of  the  hourly
compensation  levels  for  home  health aides and personal care aides as
reflected in the existing  Medicaid  rates  for  certified  home  health
agencies  to  the  hourly  compensation  levels  incurred as a result of
complying with the provisions of section thirty-six  hundred  fourteen-c
of this article.
(b)  Notwithstanding  any contrary provision of law and subject to the
availability of federal financial  participation,  for  periods  on  and
after  March  first, two thousand fourteen the commissioner shall adjust
Medicaid rates of payment for services provided by long term home health
care programs to address cost increases stemming from the wage increases
required by implementation  of  the  provisions  of  section  thirty-six
hundred fourteen-c of this article. Such rate adjustments shall be based

on  a  comparison,  as  determined  by  the  commissioner, of the hourly
compensation levels for home health aides and  personal  care  aides  as
reflected  in the existing Medicaid rates for long term home health care
programs  to  the  hourly  compensation  levels  incurred as a result of
complying with the provisions of section thirty-six  hundred  fourteen-c
of this article.