2023 New York Laws › SOS - Social Services › Article 5 - Assistance and Care › Title 11 - Medical Assistance for Needy Persons › 367-C - Payment for Long Term Home Health Care Programs.

§ 367-c. Payment for long term home health care programs. 1. If a long
term home health care program as defined under article thirty-six of the
public  health law is provided in the social services district for which
he  has  authority,  the  local  social  services  official,  before  he
authorizes  care  in  a nursing home or intermediate care facility for a
person eligible to receive services under this title, shall  notify  the
person in writing of the provisions of this section.
2.  If  a  person eligible to receive services under the provisions of
this title who requires care, treatment, maintenance, nursing  or  other
services  in  a  nursing  home  desires  to  remain and is deemed by his
physician able to remain in his own home or the home  of  a  responsible
relative  or  other  responsible  adult  if  the  necessary services are
provided, such person or his representative shall so  inform  the  local
social  services  official.  If  a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority,  such  official
shall authorize an assessment under the provisions of section thirty-six
hundred  sixteen  of  the  public  health  law.  If  the  results of the
assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for  the
provision  of  services  comparable to those that would be rendered in a
nursing home. In developing such plan, the official shall  consult  with
those  persons performing the assessment. The services shall be provided
by a certified home health agency, hospital, or residential health  care
facility   authorized  by  the  commissioner  of  health  under  article
thirty-six of the public health law to provide a long term  home  health
care  program. At the time of the initial assessment, and at the time of
each subsequent assessment performed under  the  provisions  of  section
thirty-six  hundred  sixteen  of the public health law, or more often if
the person's needs require,  the  official  shall  establish  a  monthly
budget  in  accordance  with  which  he  shall authorize payment for the
services provided under such plan. Total monthly expenditures made under
this title for such person shall not exceed a  maximum  of  seventy-five
per  cent,  or  such  lesser  percentage  as  may  be  determined by the
commissioner, of the average of the monthly  rates  payable  under  this
title  for nursing home services within the social services district for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social services official may authorize the  expenditure  of  any  amount
accrued  under this section during the past twelve months as a result of
the expenditures for that person  not  exceeding  such  maximum.  If  an
assessment  of the person's needs demonstrates that he requires services
the payment for which would exceed such monthly maximum, but it  can  be
reasonably anticipated that total expenditures for required services for
such  person  will  not  exceed  such maximum calculated over a one year
period, the social services official  may  authorize  payment  for  such
services.
3.  If  a  person eligible to receive services under the provisions of
this  title  who  requires  health  related  care  and  services  in  an
intermediate  care  facility  desires  to  remain  and  is deemed by his
physician able to remain in his own home or the home  of  a  responsible
relative  or  other  responsible  adult  if  the  necessary services are
provided, such person or his representative shall so  inform  the  local
social  services  official.   If a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority,  such  official
shall authorize an assessment under the provisions of section thirty-six
hundred  sixteen  of  the  public  health  law.  If  the  results of the

assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for  the
provision  of  services comparable to those that would be rendered in an
intermediate  care facility. In developing such plan, the official shall
consult with those persons performing the assessment. The services shall
be provided by a certified home health agency, hospital, or  residential
health  care  facility  authorized  by  the commissioner of health under
article thirty-six of the public health law to provide a long term  home
health  care  program.  At the time of the initial assessment and at the
time of each subsequent assessment performed  under  the  provisions  of
section  thirty-six  hundred  sixteen  of the public health law, or more
often if the person's needs require,  the  official  shall  establish  a
monthly  budget  in accordance with which he shall authorize payment for
the services provided under that plan. Total monthly  expenditures  made
under  this  title  for  such  person  shall  not  exceed  a  maximum of
seventy-five per cent, or such lesser percentage as may be determined by
the commissioner, of the average of the monthly rates  paid  under  this
title  for  the  provision  of  health  related  care  and  services  in
intermediate care facilities within the  social  services  district  for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social  services  official  may  authorize the expenditure of any amount
accrued under this section during the past twelve months as a result  of
the  expenditures  for  that  person  not  exceeding such maximum. If an
assessment of the person's needs demonstrates that he requires  services
the  payment  for which would exceed such monthly maximum, but it can be
reasonably anticipated that total expenditures for required services for
such person will not exceed such maximum  calculated  over  a  one  year
period,  the  social  services  official  may authorize payment for such
services.
3-a. (a) Notwithstanding any inconsistent provision of  this  section,
the commissioner is authorized and directed to establish a demonstration
program  for  the  purpose  of  determining  the  impact  of raising the
limitation on expenditures for the delivery of  long  term  home  health
care  services  to  persons  with  special  needs  as  defined  in  this
subdivision. Pursuant to such program,  the  commissioner  shall  permit
local  social  services officials to authorize, at their discretion, and
only after  a  determination  that  the  maximum  expenditure  available
pursuant to subdivisions two and three of this section is not sufficient
to provide or continue to provide long term home health care services to
persons  with  special  needs, maximum monthly expenditures for services
under this title to such persons, not to exceed one hundred  percent  of
the  average  of the monthly rates payable under this title for services
in a nursing home  or  intermediate  care  facility  within  the  social
services  district for which the social services official has authority.
However, if a continuing assessment  of  a  person  with  special  needs
demonstrates  that  he  requires increased services, the social services
official may authorize the expenditure of any amount accrued under  this
section  during  the  past twelve months as a result of the expenditures
for that person not having exceeded such maximum. If an assessment of  a
person  with  special  needs  demonstrates  that  he  requires increased
services the payment for which would exceed such monthly maximum, but it
can be reasonably  anticipated  that  total  expenditures  for  required
services  for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment  for
such services.
(b)  As used in this subdivision, the term "person with special needs"
shall mean a person for whom a plan of care has been developed  pursuant

to subdivision two or three of this section who (1) needs care including
but  not limited to respiratory therapy, tube feeding, decubitus care or
insulin therapy which cannot be appropriately  provided  by  a  personal
care  aide  as defined in regulations issued by the commissioner, or (2)
has one or more  of  the  following  conditions:  mental  disability  as
defined  in  section  1.03  of  the  mental hygiene law, acquired immune
deficiency syndrome, or dementias, including Alzheimer's disease.
(c) The number of persons with special needs for whom a  local  social
services  official  may  authorize  payment  for  services  pursuant  to
paragraph (a) of  this  subdivision  shall  be  limited  to  twenty-five
percent  of  the total number of persons, all long term home health care
programs, within a social services district  are  authorized  to  serve;
provided, however, in any district containing a city having a population
of one million or more, such limit shall be fifteen percent.
(d)  In  the event that a district reaches the limitation specified in
paragraph (c) of this subdivision, the local  social  services  official
may,  upon  the  approval  of  the  commissioner,  authorize payment for
services, pursuant to paragraph (a) of this subdivision, for  additional
persons with special needs.
4.  Notwithstanding any inconsistent provision of this section, if two
members of this same household, eligible to receive services under  this
title,  require  care  and  services  in  either  a  nursing  home or an
intermediate care facility, and assessments conducted  pursuant  to  the
provisions  of  this  section indicate that such persons can receive the
appropriate level of care at home, then such care  may  be  provided  at
home  where  total  monthly  expenditures made under this title for such
persons shall not exceed a maximum  of  seventy-five  percent,  or  such
lesser  percentage  as  may  be  determined  by the commissioner, of the
monthly rates which would be payable under this title for  both  members
of  the  household  for  nursing  home and/or intermediate care facility
services within the social services district.  If  assessments  of  such
persons'  needs  demonstrate  that they require services the payment for
which would exceed such  monthly  maximum,  but  it  can  be  reasonably
anticipated  that  total  expenditures  for  required  services for such
persons will not exceed the maximum calculated over a one year period, a
social services official may authorize payment for such services.
5. If a person eligible to receive services under  the  provisions  of
this  title  who is medically eligible for care, treatment, maintenance,
nursing or other services in a nursing home or is medically eligible for
health related care  and  services  in  an  intermediate  care  facility
desires  to  and  is deemed by his or her physician able to remain in an
adult care facility, other than a shelter for adults, which is able  and
willing  to  retain  such person if the necessary services are provided,
such person or his or her representatives  shall  so  inform  the  local
social  services  official.  If  a long term home health care program is
provided in a social services district, an  official  of  such  district
shall  authorize  an  assessment  under  the provisions of section three
thousand six hundred sixteen of the public health law. If the results of
the assessment indicate that the  person  can  receive  the  appropriate
level  of care at such location, and meets the appropriate standards for
continued  stay  for  such  facility  as  are  established  by  law  and
regulation,  such  official shall prepare for that person a plan for the
provision of services. In  developing  such  plan,  the  official  shall
consult  with  those  persons  performing  the  assessment  and with the
operator of the adult care facility. The services shall be provided by a
long term home  health  care  program  authorized  pursuant  to  article
thirty-six   of   the   public   health   law,  provided,  however  that
notwithstanding the provisions of section  three  thousand  six  hundred

sixteen  of  such  law,  services  shall  not  be  provided prior to the
completion of the assessment. At the time of the initial assessment  and
at the time of each subsequent assessment performed under the provisions
of  section three thousand six hundred sixteen of the public health law,
or more  often  if  the  person's  needs  require,  the  official  shall
establish  a  monthly budget in accordance with which he shall authorize
payment for the services provided under  that  plan,  provided,  however
that  no  services shall be authorized in the plan which the operator of
the facility is required by law and regulation to provide. The long term
home health care program providing  services  authorized  in  such  plan
shall  be solely responsible for managing and providing or arranging for
such authorized services. The operator of the adult care facility  shall
be  solely  responsible  for managing and providing those services which
the facility is required by law or regulation to provide.  However,  the
two  entities  shall  collaborate  to assure coordination. Total monthly
expenditures made under this title for such person shall  not  exceed  a
maximum of fifty percent, or such lesser percentage as may be determined
by the commissioner, of the average of the monthly rates paid under this
title  for the provision of nursing home services or health related care
and services in intermediate care facilities, whichever is  appropriate,
within   the  social  services  district  for  which  the  official  has
authority. However, if a continuing assessment  of  the  person's  needs
demonstrates  that  he  or  she  requires increased services, the social
services official may authorize the expenditure of  any  amount  accrued
under  this  section  during  the  past twelve months as a result of the
expenditures  for  that  person  not  exceeding  such  maximum.  If   an
assessment  of  the  person's needs demonstrates that he or she requires
services the payment for which would exceed such monthly maximum, but it
can be reasonably  anticipated  that  total  expenditures  for  required
services  for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment  for
such services. The provisions of this subdivision shall not be deemed to
alter  standards  for  admission to an adult care facility nor shall the
admission of a person into such facility be contingent on such  person's
enrollment in a long term home health care program.
6.  Notwithstanding  any  inconsistent provision of law but subject to
expenditure limitations of this section, the  commissioner,  subject  to
the  approval  of  the  state  director of the budget, may authorize the
utilization of medical assistance funds to pay for services provided  by
specified  long  term  home  health  care  programs in addition to those
services included in the medical assistance program under section  three
hundred  sixty-five-a  of  this  chapter,  so  long as federal financial
participation is available for such services.  Expenditures  made  under
this  subdivision  shall  be  deemed payments for medical assistance for
needy persons and shall be subject to  reimbursement  by  the  state  in
accordance with the provisions of section three hundred sixty-eight-a of
this chapter.
7.  No  social services district shall make payments pursuant to title
XIX of the federal Social Security  Act  for  benefits  available  under
title  XVIII  of  such act without documentation that title XVIII claims
have been filed and denied.
8. No social  services  district  shall  make  payment  for  a  person
receiving  a long term home health care program while payments are being
made for that person for inpatient care in  a  residential  health  care
facility or hospital.
9.  The  commissioner, together with the commissioner of health, shall
submit a report to the governor, president pro tem  of  the  senate  and
speaker  of  the assembly by the first day of February, nineteen hundred

eighty, on the implementation of this section. Such report shall include
a statement of the scope and  status  of  long  term  home  health  care
programs,   the   extent   to   which   such   programs   have  affected
institutionalization,  the  costs  associated  with  such  programs, any
recommendations for legislative action, and such other matters as may be
pertinent.
10. This section shall be effective if, and as long as, federal aid is
available therefor.