N.Y. Public Health Law § 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, 2029

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, 2029

* 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, 2029

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;

(v) for the period April first, two thousand twenty-six through March

thirty-first, two thousand twenty-seven, up to one hundred million

dollars;

(w) for the period April first, two thousand twenty-seven through

March thirty-first, two thousand twenty-eight, up to one hundred million

dollars;

(x) for the period April first, two thousand twenty-eight through

March thirty-first, two thousand twenty-nine, 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-nine, 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.