N.Y. Public Health Law § 3605: Licensure of home care services agencies

§ 3605. Licensure of home care services agencies. 1. After April

first, nineteen hundred eighty-six, no home care services agency which

is engaged in providing, directly or through contract arrangement,

nursing services, home health aide services, or personal care services

shall be operated without a license issued by the commissioner in

accordance with the standards set forth in this section; provided

however, an agency which provides personal care or home care services

exclusively to individuals pursuant to a program administered, operated

or regulated by another state agency or an organization licensed and

operating exclusively as a nurses' registry pursuant to article eleven

of the general business law shall be exempt from the licensure

requirements of this chapter. The licensure requirements of this chapter

shall not apply to sole practitioners licensed pursuant to sections six

thousand nine hundred five and six thousand nine hundred six of the

education law.

1-a. (a) Core public health services, as defined in section six

hundred two of this chapter, when provided in the home by the local

health department of a county or of the city of New York, shall not

require licensure under this section if such core public services

require only minimal patient contact. Patient contact shall be

considered minimal if it is of limited duration for acute or non-chronic

conditions, including but not limited to any health conditions posing a

potential threat to public health, and treatment is generally expected

to require no more than six patient visits; provided, however, that a

local health department may exceed six visits in the interest of patient

safety and public health.

(b) Core public health services that may be provided without a license

pursuant to this subdivision include but are not limited to:

immunizations; testing for tuberculosis and observation of tuberculosis

self-directed therapy; verbal assessment, counseling and referral

services; and such other services as may be determined by the

department, provided that such services shall not include home health

aide services, personal care services, or nursing services that require

more than minimal patient contact.

1-b. Core public health services, as defined in section six hundred

two of this chapter, when provided by local health departments in the

home as authorized under subdivision one-a of this section, may be

eligible for reimbursement under title XIX of the federal Social

Security Act, provided that the services meet federal and state

requirements for such reimbursement.

2. The commissioner shall not issue a license to any home care

services agency except with the written approval of the public health

and health planning council issued pursuant to the provisions of this

section.

3. An application for licensure as a home care services agency shall

be filed with the public health and health planning council together

with such other forms and information as shall be prescribed by, or

acceptable to, the public health and health planning council.

Thereafter, the public health and health planning council shall forward

for comment, if any, a copy of the application for licensure and

accompanying documents to the health systems agency, if any, having

geographical jurisdiction of the area where the services of the proposed

agency are to be offered. The public health and health planning council

shall act upon such application, after the health systems agency has had

reasonable time to submit its comments, based solely upon criteria

provided for in subdivision four of this section. If the public health

and health planning council proposes to disapprove the application, it

shall notify the applicant, provide reasons for disapproval and afford

the applicant a hearing on the application, if requested, or on its own

motion. Any hearing held pursuant to this subdivision may be conducted

by the public health and health planning council or by any individual

designated by the public health and health planning council.

4. The public health and health planning council shall not approve an

application for licensure unless it is satisfied as to: (a) the public

need for the existence of the licensed home health care service agency

at the time and place and under the circumstances proposed; (b) the

character, competence and standing in the community of the applicant's

incorporators, directors, sponsors, stockholders or operators; (c) the

financial resources of the proposed licensed home health care service

agency and its sources of financial revenues; and (d) such other matters

as it shall deem pertinent.

5. A license shall not be issued by the commissioner unless he finds

that the equipment, personnel, rules, standards of care, and home care

services are fit and adequate, and that the home care services will be

provided in the manner required by this article and the rules and

regulations thereunder.

6. Neither tax status nor profit-making status shall be criteria for

licensure.

7. An agency licensed pursuant to this section shall be authorized to

provide nursing services, home health aide services or personal care

services.

8. Agencies licensed pursuant to this section but not certified

pursuant to section three thousand six hundred eight of this article,

shall not be qualified to participate as a home health agency under the

provisions of title XVIII or XIX of the federal Social Security Act

provided, however, an agency which has a contract with a state agency or

its locally designated office or, as specified by the commissioner, with

a managed care organization participating in the managed care program

established pursuant to section three hundred sixty-four-j of the social

services law or with a managed long term care plan established pursuant

to section forty-four hundred three-f of this chapter, may receive

reimbursement under title XIX of the federal Social Security Act.

* 9. An entity which seeks approval as a limited home care services

agency must meet the requirements of this section, the rules and

regulations of the department, and must be a certified operator of an

adult home or enriched housing program pursuant to article seven of the

social services law. The commissioner shall approve only those

applicants that the commissioner of the department of social services

has listed as eligible pursuant to the requirements of paragraph (a) of

subdivision eleven of this section.

* NB Expires June 30, 2027

* 10. The department shall notify the department of social services of

any action taken against a limited home care services agency pursuant to

section thirty-six hundred five-a of this article.

* NB Expires June 30, 2027

* 11. For purposes of this subdivision, eligibility of limited home

care services agencies licensed by the department shall be as follows:

(a) Only those certified operators of adult homes and enriched housing

programs that provide services that are consistent with the needs of

each resident, meet the standards governing the operation of such

facilities in accordance with the provisions of article seven of the

social services law, and provide quality care shall be considered by the

department as eligible for licensure.

(b) An operator that has received current official written notice from

the department of social services of any enforcement action pursuant to

section four hundred sixty-d of the social services law shall not be

eligible for such certification.

(c) Such current enforcement action, when resolved to the satisfaction

of the commissioner of social services, shall not itself preclude an

otherwise eligible applicant from licensure approval but shall be

considered by the department in determining the character, competence,

and standing in the community of the applicant pursuant to subdivision

four of this section.

(d) If the department receives notice from the department of social

services that a certified operator of an adult home or enriched housing

program that is licensed as a limited home care services agency has

received official written notice from the department of social services

of a proposed enforcement action taken pursuant to section four hundred

sixty-d of the social services law, the department shall review the

delivery of home care services to determine whether such agency is

meeting all applicable regulations and standards.

* NB Expires June 30, 2027

* 12. Notwithstanding any law to the contrary, the commissioner shall

have the authority to limit the number of adult homes and enriched

housing programs eligible for licensure under this section.

* NB Expires June 30, 2027

13. The commissioner shall charge to applicants for the licensure of

home care services agencies an application fee of two thousand dollars.

All fees pursuant to this section shall be payable to the department of

health for deposit into the special revenue funds - other, miscellaneous

special revenue fund - 339, certificate of need account.

14. Notwithstanding any contrary provision of law and subject to the

availability of federal financial participation, for periods on and

after April first, two thousand fourteen, the commissioner is authorized

to make temporary periodic lump-sum Medicaid payments to licensed home

care service agencies ("LHCSA") principally engaged in providing home

health services to Medicaid patients, in accordance with the following:

(a) Eligible LHCSA providers shall include:

(i) providers undergoing closure;

(ii) providers impacted by the closure of other health care providers;

(iii) providers subject to mergers, acquisitions, consolidations or

restructuring;

(iv) providers impacted by the merger, acquisition, consolidation or

restructuring of other health care providers; or

(v) providers seeking to ensure that access to care is maintained.

(b) Providers seeking Medicaid payments under this subdivision shall

demonstrate through submission of a written proposal to the commissioner

that the additional resources provided by such Medicaid payments will

achieve one or more of the following:

(i) protect or enhance access to care;

(ii) protect or enhance quality of care;

(iii) improve the cost effectiveness of the delivery of health care

services; or

(iv) otherwise protect or enhance the health care delivery system, as

determined by the commissioner.

(c) (i) Such written proposal shall be submitted to the commissioner

at least sixty days prior to the requested commencement of such Medicaid

payments and shall include a proposed budget to achieve the goals of the

proposal. Any Medicaid payments issued pursuant to this subdivision

shall be made over a specified period of time, as determined by the

commissioner, of up to three years. At the end of the specified

timeframe such payments shall cease. The commissioner may establish, as

a condition of receiving such Medicaid payments, benchmarks and goals to

be achieved in conformity with the provider's written proposal as

approved by the commissioner and may also require that the provider

submit such periodic reports concerning the achievement of such

benchmarks and goals as the commissioner deems necessary. Failure to

achieve satisfactory progress, as determined by the commissioner, in

accomplishing such benchmarks and goals shall be a basis for ending the

provider's Medicaid payments prior to the end of the specified

timeframe.

(ii) The commissioner may require that applications submitted pursuant

to this subdivision be submitted in response to and in accordance with a

Request For Applications or a Request For Proposals issued by the

commissioner.