N.Y. Social Services Law § 365-a: Character and adequacy of assistance

§ 365-a. Character and adequacy of assistance. The amount, nature and

manner of providing medical assistance for needy persons shall be

determined by the public welfare official with the advice of a physician

and in accordance with the local medical plan, this title, and the

regulations of the department.

1. "Benchmark coverage" shall mean payment of part or all of the cost

of medically necessary medical, dental, and remedial care, services, and

supplies described in subdivision two of this section, and to the extent

not included therein, any essential benefits as defined in 42 U.S.C.

18022(b), with the exception of institutional long term care services;

such care, services and supplies shall be provided consistent with the

managed care program described in section three hundred sixty-four-j of

this title.

2. "Standard coverage" shall mean payment of part or all of the cost

of medically necessary medical, dental and remedial care, services and

supplies, as authorized in this title or the regulations of the

department, which are necessary to prevent, diagnose, correct or cure

conditions in the person that cause acute suffering, endanger life,

result in illness or infirmity, interfere with such person's capacity

for normal activity, or threaten some significant handicap and which are

furnished an eligible person in accordance with this title and the

regulations of the department. Such care, services and supplies shall

include the following medical care, services and supplies, together with

such medical care, services and supplies provided for in subdivisions

three, four and five of this section, and such medical care, services

and supplies as are authorized in the regulations of the department:

(a) services of qualified physicians, dentists, nurses, and private

duty nursing services shall be further subject to the provisions of

section three hundred sixty-seven-o of this chapter, optometrists, and

other related professional personnel;

(b) care, treatment, maintenance and nursing services in hospitals,

nursing homes that qualify as providers in the medicare program pursuant

to title XVIII of the federal social security act, infirmaries or other

eligible medical institutions, and health-related care and services in

intermediate care facilities, while operated in compliance with

applicable provisions of this chapter, the public health law, the mental

hygiene law and other laws, including any provision thereof requiring an

operating certificate or license, or where such facilities are not

conveniently accessible, in hospitals located without the state;

provided, however, that care, treatment, maintenance and nursing

services in nursing homes or in intermediate care facilities, including

those operated by the state department of mental hygiene or any other

state department or agency, shall, for persons who are receiving or who

are eligible for medical assistance under provisions of subparagraph

four of paragraph (a) of subdivision one of section three hundred

sixty-six of this chapter, be limited to such periods of time as may be

determined necessary in accordance with a utilization review procedure

established by the state commissioner of health providing for a review

of medical necessity, in the case of skilled nursing care, every thirty

days for the first ninety days and every ninety days thereafter, and in

the case of care in an intermediate care facility, at least every six

months, or more frequently if indicated at the time of the last review,

consistent with federal utilization review requirements; provided,

further, that in-patient care, services and supplies in a general

hospital shall not exceed such standards as the commissioner of health

shall promulgate but in no case greater than twenty days per spell of

illness during which all or any part of the cost of such care, services

and supplies are claimed as an item of medical assistance, unless it

shall have been determined in accordance with procedures and criteria

established by such commissioner that a further identifiable period of

in-patient general hospital care is required for particular patients to

preserve life or to prevent substantial risks of continuing disability;

provided further, that in-patient care, services and supplies in a

general hospital shall, in the case of a person admitted to such a

facility on a Friday or Saturday, be deemed to include only those

in-patient days beginning with and following the Sunday after such date

of admission, unless such care, services and supplies are furnished for

an actual medical emergency or pre-operative care for surgery as

provided in paragraph (d) of subdivision five of this section, or are

furnished because of the necessity of emergency or urgent surgery for

the alleviation of severe pain or the necessity for immediate diagnosis

or treatment of conditions which threaten disability or death if not

promptly diagnosed or treated; provided, however, in-patient days of a

general hospital admission beginning on a Friday or a Saturday shall be

included commencing with the day of admission in a general hospital

which the commissioner or his designee has found to be rendering and

which continues to render full service on a seven day a week basis which

determination shall be made after taking into consideration such factors

as the routine availability of operating room services, diagnostic

services and consultants, laboratory services, radiological services,

pharmacy services, staff patterns consistent with full services and such

other factors as the commissioner or his designee deems necessary and

appropriate; provided, further, that in-patient care, services and

supplies in a general hospital shall not include care, services and

supplies furnished to patients for certain uncomplicated procedures

which may be performed on an out-patient basis in accordance with

regulations of the commissioner of health, unless the person or body

designated by such commissioner determines that the medical condition of

the individual patient requires that the procedure be performed on an

in-patient basis;

(c) out-patient hospital or clinic services in facilities operated in

compliance with applicable provisions of this chapter, the public health

law, the mental hygiene law and other laws, including any provisions

thereof requiring an operating certificate or license, including

facilities authorized by the appropriate licensing authority to provide

integrated mental health services, and/or alcoholism and substance abuse

services, and/or physical health services, and/or services to persons

with developmental disabilities, when such services are provided at a

single location or service site, or where such facilities are not

conveniently accessible, in any hospital located within the state and

care and services in a day treatment program operated by the department

of mental hygiene or by a voluntary agency under an agreement with such

department in that part of a public institution operated and approved

pursuant to law as an intermediate care facility for persons with

developmental disabilities; and provided, that the commissioners of

health, mental health, alcoholism and substance abuse services and the

office for people with developmental disabilities may issue regulations,

including emergency regulations promulgated prior to October first, two

thousand fifteen that are required to facilitate the establishment of

integrated services clinics. Any such regulations promulgated under this

paragraph shall be described in the annual report required pursuant to

section forty-five-c of part A of chapter fifty-six of the laws of two

thousand thirteen;

(d) home health services provided in a recipient's home and prescribed

by a physician including services of a nurse provided on a part-time or

intermittent basis rendered by an approved home health agency or if no

such agency is available, by a registered nurse, licensed to practice in

this state, acting under the written orders of a physician and home

health aide service by an individual or shared aide provided by an

approved home health agency when such services are determined to be cost

effective and appropriate to meet the recipient's needs for assistance

subject to the provisions of section three hundred sixty-seven-j and

section three hundred sixty-seven-o of this title;

(e) (i) personal care services, including personal emergency response

services, shared aide and an individual aide, subject to the provisions

of subparagraphs (ii), (iii), (iv), (v) and (vi) of this paragraph,

furnished to an individual who is not an inpatient or resident of a

hospital, nursing facility, intermediate care facility for individuals

with intellectual disabilities, or institution for mental disease, as

determined to meet the recipient's needs for assistance when cost

effective and appropriate, and when prescribed by a qualified

independent physician selected or approved by the department of health,

in accordance with the recipient's plan of treatment and provided by

individuals who are qualified to provide such services, who are

supervised by a registered nurse and who are not members of the

recipient's family, and furnished in the recipient's home or other

location;

(ii) the commissioner is authorized to adopt standards, pursuant to

emergency regulation, for the provision, management and assessment of

services available under this paragraph for individuals whose need for

such services exceeds a specified level to be determined by the

commissioner, and who with the provision of such services is capable of

safely remaining in the community in accordance with the standards set

forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider

whether an individual is capable of safely remaining in the community;

(iii) the commissioner shall provide assistance to persons receiving

services under this paragraph who are transitioning to receiving care

from a managed long term care plan certified pursuant to section

forty-four hundred three-f of the public health law, consistent with

subdivision thirty-one of section three hundred sixty-four-j of this

title;

(iv) personal care services available pursuant to this paragraph shall

not exceed eight hours per week for individuals whose needs are limited

to nutritional and environmental support functions;

(v) subject to the availability of federal financial participation,

personal care services other than personal emergency response services

available pursuant to this paragraph shall be available only to

individuals assessed as needing at least limited assistance with

physical maneuvering with more than two activities of daily living, or

for individuals with a dementia or Alzheimer's diagnosis, assessed as

needing at least supervision with more than one activity of daily

living, as defined and determined by using an evidenced based validated

assessment instrument approved by the commissioner and in accordance

with regulations of the department and any applicable state and federal

laws by an independent assessor. The provisions of this subparagraph

shall only apply to individuals who receive an initial authorization for

such services on or after October first, two thousand twenty;

(vi) In establishing any standards for the provision, management or

assessment of personal care services the state shall meet the standards

set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider

whether an individual is capable of safely remaining in the community;

(f) preventive, prophylactic and other routine dental care, services

and supplies;

(g) sickroom supplies, eyeglasses, prosthetic appliances and dental

prosthetic appliances furnished in accordance with the regulations of

the department; provided further that: (i) the commissioner of health is

authorized to implement a preferred diabetic supply program wherein the

department of health will receive enhanced rebates from preferred

manufacturers of glucometers and test strips, and may subject

non-preferred manufacturers' glucometers and test strips to prior

authorization under section two hundred seventy-three of the public

health law; (ii) enteral formula therapy and nutritional supplements are

limited to coverage only for nasogastric, jejunostomy, or gastrostomy

tube feeding, for treatment of an inborn metabolic disorder, or to

address growth and development problems in children, or, subject to

standards established by the commissioner, for persons with a diagnosis

of HIV infection, AIDS or HIV-related illness or other diseases and

conditions; (iii) prescription footwear and inserts are limited to

coverage only when used as an integral part of a lower limb orthotic

appliance, as part of a diabetic treatment plan, or to address growth

and development problems in children; (iv) compression and support

stockings are limited to coverage only for pregnancy or treatment of

venous stasis ulcers; and (v) the commissioner of health is authorized

to implement an incontinence supply utilization management program to

reduce costs without limiting access through the existing provider

network, including but not limited to single or multiple source

contracts or, a preferred incontinence supply program wherein the

department of health will receive enhanced rebates from preferred

manufacturers of incontinence supplies, and may subject non-preferred

manufacturers' incontinence supplies to prior approval pursuant to

regulations of the department, provided any necessary approvals under

federal law have been obtained to receive federal financial

participation in the costs of incontinence supplies provided pursuant to

this subparagraph;

(g-1) drugs provided on an in-patient basis, those drugs contained on

the list established by regulation of the commissioner of health

pursuant to subdivision four of this section, and those drugs which may

not be dispensed without a prescription as required by section

sixty-eight hundred ten of the education law and which the commissioner

of health shall determine to be reimbursable based upon such factors as

the availability of such drugs or alternatives at low cost if purchased

by a medicaid recipient, or the essential nature of such drugs as

described by such commissioner in regulations, provided, however, that

such drugs, exclusive of long-term maintenance drugs, shall be dispensed

in quantities no greater than a thirty day supply or one hundred doses,

whichever is greater; provided further that the commissioner of health

is authorized to require prior authorization for any refill of a

prescription when more than a ten day supply of the previously dispensed

amount should remain were the product used as normally indicated, or in

the case of a controlled substance, as defined in section thirty-three

hundred two of the public health law, when more than a seven day supply

of the previously dispensed amount should remain were the product used

as normally indicated; provided further that the commissioner of health

is authorized to require prior authorization of prescriptions of opioid

analgesics in excess of four prescriptions in a thirty-day period in

accordance with section two hundred seventy-three of the public health

law; medical assistance shall not include any drug provided on other

than an in-patient basis for which a recipient is charged or a claim is

made in the case of a prescription drug, in excess of the maximum

reimbursable amounts to be established by department regulations in

accordance with standards established by the secretary of the United

States department of health and human services, or, in the case of a

drug not requiring a prescription, in excess of the maximum reimbursable

amount established by the commissioner of health pursuant to paragraph

(a) of subdivision four of this section;

(h) speech therapy, and when provided at the direction of a physician

or nurse practitioner, physical therapy including related rehabilitative

services and occupational therapy;

(i) laboratory and x-ray services; and

(j) transportation when essential and appropriate to obtain medical

care, services and supplies otherwise available under the medical

assistance program in accordance with this section, upon prior

authorization, except when required in order to obtain emergency care,

and when not otherwise available to the recipient free of charge or

through a transportation program implemented pursuant to section three

hundred sixty-five-h of this title and approved by the commissioner of

health for which federal financial participation is claimed as an

administrative cost;

* (k) care and services furnished by an entity offering a

comprehensive health services plan, including an entity that has

received a certificate of authority pursuant to sections forty-four

hundred three, forty-four hundred three-a or forty-four hundred eight-a

of the public health law (as added by chapter six hundred thirty-nine of

the laws of nineteen hundred ninety-six) or a health maintenance

organization authorized under article forty-three of the insurance law,

to eligible individuals residing in the geographic area served by such

entity, when such services are furnished in accordance with an agreement

approved by the department which meets the requirements of federal law

and regulations.

* NB Effective until December 31, 2029

* (k) care and services furnished by an entity offering a

comprehensive health services plan to eligible individuals residing in

the geographic area served by such entity, when such services are

furnished in accordance with an agreement approved by the department

which meets the requirements of federal law and regulations.

* NB Effective December 31, 2029

(l) care and services of podiatrists which care and services shall

only be provided upon referral by a physician, nurse practitioner or

certified nurse midwife in accordance with the program of early and

periodic screening and diagnosis established pursuant to subdivision

three of this section or to persons eligible for benefits under title

XVIII of the federal social security act as qualified medicare

beneficiaries in accordance with federal requirements therefor and

private duty nurses which care and services shall only be provided in

accordance with regulations of the department of health; provided,

however, that private duty nursing services shall not be restricted when

such services are more appropriate and cost-effective than nursing

services provided by a home health agency pursuant to section three

hundred sixty-seven-l;

(m) hospice services provided by a hospice certified pursuant to

article forty of the public health law, to the extent that federal

financial participation is available, and, notwithstanding federal

financial participation and any provision of law or regulation to the

contrary, for hospice services provided pursuant to the hospice

supplemental financial assistance program for persons with special needs

as provided for in article forty of the public health law.

* (n) care and services of audiologists provided in accordance with

regulations of the department of health.

* NB There are two par (n)'s

* (n) care, treatment, maintenance and rehabilitation services that

would otherwise qualify for reimbursement pursuant to this chapter to

persons suffering from alcoholism in alcoholism facilities or chemical

dependence, as such term is defined in section 1.03 of the mental

hygiene law, in inpatient chemical dependence facilities, services, or

programs operated in compliance with applicable provisions of this

chapter and the mental hygiene law, and certified by the office of

alcoholism and substance abuse services, provided however that such

services shall be limited to such periods of time as may be determined

necessary in accordance with a utilization review procedure established

by the commissioner of the office of alcoholism and substance abuse

services and provided further, that this paragraph shall not apply to

any hospital or part of a hospital as defined in section two thousand

eight hundred one of the public health law.

* NB There are two par (n)'s

* (o) care and services furnished by a managed long term care plan or

approved managed long term care demonstration pursuant to the provisions

of section forty-four hundred three-f of the public health law to

eligible individuals residing in the geographic area served by such

entity, when such services are furnished in accordance with an agreement

with the department of health and meet the applicable requirements of

federal law and regulation.

* NB Repealed December 31, 2029

(p) targeted case management services provided to children who

(i) are eighteen years of age or under; and

(ii) either

(1) are physically disabled, according to the federal supplemental

security income program criteria, including but not limited to a person

who is multiply disabled; or

(2) have a developmental disability, as defined in subdivision

twenty-two of section 1.03 of the mental hygiene law and demonstrate

complex health needs as defined in paragraph c of subdivision seven of

section three hundred sixty-six of this title; or

(3) have a mental illness, as defined in subdivision twenty of section

1.03 of the mental hygiene law and demonstrate complex health or mental

health care needs as defined in paragraph d of subdivision nine of

section three hundred sixty-six of this title; and

(iii) require the level of care provided by an intermediate care

facility for the developmentally disabled, a nursing facility, a

hospital or any other institution; and

(iv) are capable of being cared for in the community if provided with

case management services and/or other services provided under this

title; and

(v) are capable of being cared for in the community at less cost than

in the appropriate institutional setting; and

(vi) are not receiving services under section three hundred

sixty-seven-c of this title and for whom services provided under section

three hundred sixty-seven-a of this title are not available or

sufficient to support the children's care in the community.

(q) diabetes self-management training services for persons diagnosed

with diabetes when such services are ordered by a physician, registered

physician assistant, registered nurse practitioner, or licensed midwife

and provided by a licensed, registered, or certified health care

professional, as determined by the commissioner of health, who is

certified as a diabetes educator by the National Certification Board for

Diabetes Educators, or a successor national certification board, or

provided by such a professional who is affiliated with a program

certified by the American Diabetes Association, the American Association

of Diabetes Educators, the Indian Health Services, or any other national

accreditation organization approved by the federal centers for medicare

and medicaid services; provided, however, that the provisions of this

paragraph shall not take effect unless all necessary approvals under

federal law and regulation have been obtained to receive federal

financial participation in the costs of health care services provided

pursuant to this paragraph. Nothing in this paragraph shall be construed

to modify any licensure, certification or scope of practice provision

under title eight of the education law.

(r) asthma self-management training services for persons diagnosed

with asthma when such services are ordered by a physician, registered

physician's assistant, registered nurse practitioner, or licensed

midwife and provided by a licensed, registered, or certified health care

professional, as determined by the commissioner of health, who is

certified as an asthma educator by the National Asthma Educator

Certification Board, or a successor national certification board;

provided, however, that the provisions of this paragraph shall not take

effect unless all necessary approvals under federal law and regulation

have been obtained to receive federal financial participation in the

costs of health care services provided pursuant to this paragraph.

Nothing in this paragraph shall be construed to modify any licensure,

certification or scope of practice provision under title eight of the

education law.

(s) smoking cessation counseling services; provided, however, that the

provisions of this paragraph shall not take effect unless all necessary

approvals under federal law and regulation have been obtained to receive

federal financial participation in the costs of such services.

(t) cardiac rehabilitation services when ordered by the attending

physician and provided in a hospital-based or free-standing clinic in an

area set aside for cardiac rehabilitation, or in a physician's office;

provided, however, that the provisions of this paragraph relating to

cardiac rehabilitation services shall not take effect unless all

necessary approvals under federal law and regulation have been obtained

to receive federal financial participation in the costs of such

services.

(u) screening, brief intervention, and referral to treatment of

individuals at risk for substance abuse including referral to the

appropriate level of intervention and treatment in a community setting;

provided, however, that the provisions of this paragraph relating to

screening, brief intervention, and referral to treatment services shall

not take effect unless all necessary approvals under federal law and

regulation have been obtained to receive federal financial participation

in such costs.

(v) administration of vaccinations in a pharmacy by a certified

pharmacist within his or her scope of practice.

(w) podiatry services for individuals with a diagnosis of diabetes

mellitus; provided, however, that the provisions of this paragraph shall

not take effect unless all necessary approvals under federal law and

regulation have been obtained to receive federal financial participation

in the costs of health care services provided pursuant to this

paragraph.

(x)(i) lactation counseling services for pregnant and postpartum women

when such services are ordered by a physician, physician assistant,

nurse practitioner, or midwife and provided by a qualified lactation

care provider, as determined by the commissioner of health; provided,

however, that the provisions of this paragraph shall not take effect

unless all necessary approvals under federal law and regulation have

been obtained to receive federal financial participation in the costs of

health care services provided pursuant to this paragraph. Nothing in

this paragraph shall be construed to modify any licensure, certification

or scope of practice provision under title eight of the education law.

(ii) for the purposes of this paragraph, the following terms shall

have the following meanings:

(1) "Qualified lactation care provider" shall mean a person who

possesses current certification as a lactation care provider from a

certification program accredited by a nationally recognized accrediting

agency.

(2) "Nationally recognized accrediting agency" shall mean a nationally

recognized accrediting agency designated by the commissioner; provided

that the commissioner shall designate more than one agency.

(y) harm reduction counseling and services to reduce or minimize the

adverse health consequences associated with drug use, provided by a

qualified drug treatment program or community-based organization, as

determined by the commissioner of health; provided, however, that the

provisions of this paragraph shall not take effect unless all necessary

approvals under federal law and regulation have been obtained to receive

federal financial participation in the costs of health care services

provided pursuant to this paragraph. Nothing in this paragraph shall be

construed to modify any licensure, certification or scope of practice

provision under title eight of the education law.

(z) hepatitis C wrap-around services to promote care coordination and

integration when ordered by a physician, registered physician assistant,

registered nurse practitioner, or licensed midwife, and provided by a

qualified professional, as determined by the commissioner of health.

Such services may include client outreach, identification and

recruitment, hepatitis C education and counseling, coordination of care

and adherence to treatment, assistance in obtaining appropriate

entitlement services, peer support and other supportive services;

provided, however, that the provisions of this paragraph shall not take

effect unless all necessary approvals under federal law and regulation

have been obtained to receive federal financial participation in the

costs of health care services provided pursuant to this paragraph.

Nothing in this paragraph shall be construed to modify any licensure,

certification or scope of practice provision under title eight of the

education law.

** (aa) care and services furnished by a developmental disability

individual support and care coordination organization (DISCO) that has

received a certificate of authority pursuant to section forty-four

hundred three-g of the public health law to eligible individuals

residing in the geographic area served by such entity, when such

services are furnished in accordance with an agreement approved by the

department of health which meets the requirements of federal law and

regulations.

* NB Repealed December 31, 2027

(bb) Subject to the availability of federal financial participation,

services and supports authorized by the federal regulations governing

the Home and Community-Based Attendant Services and Supports State Plan

Option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).

(cc) care and services for surgical first assistant services provided

by a registered nurse first assistant provided that: (i) the registered

nurse first assistant is certified in operating room nursing; (ii) the

services are within the scope of practice of a non-physician surgical

first assistant; and (iii) the terms and conditions of the policy or

contract otherwise provide for the coverage of the services. Nothing in

this paragraph shall be construed to prevent the medical management or

utilization review of the services; prevent a policy or contract from

requiring that services are to be provided through a network of

participating providers who meet certain requirements for participation,

including provider credentialing; or prohibit an insurer from providing

a global or capitated payment or electing to directly reimburse a

non-physician surgical first assistant for the services, as otherwise

permitted by law.

(dd) pasteurized donor human milk (PDHM), which may include fortifiers

as medically indicated, for inpatient use, for which a licensed medical

practitioner has issued an order for an infant who is medically or

physically unable to receive maternal breast milk or participate in

breast feeding or whose mother is medically or physically unable to

produce maternal breast milk at all or in sufficient quantities or

participate in breast feeding despite optimal lactation support. Such

infant shall: (i) have a documented birth weight of less than one

thousand five hundred grams; or (ii) have a congenital or acquired

condition that places the infant at a high risk for development of

necrotizing enterocolitis; or (iii) have a congenital or acquired

condition that may benefit from the use of donor breast milk as

determined by the commissioner of health or his or her designee.

(ee) Medical assistance shall include the coverage of a set of

services to ensure improved outcomes of women who are in the process of

ovulation enhancing drugs, limited to the provision of such treatment,

office visits, hysterosalpingogram services, pelvic ultrasounds, and

blood testing; services shall be limited to those necessary to monitor

such treatment. In the event that ninety percent federal financial

participation for such services is not available, the state share of

appropriations related to these services shall be used for a grant

program intended to accomplish the purpose of this section.

(ff) evidence-based prevention and support services recognized by the

federal Centers for Disease Control (CDC), provided by a community-based

organization, and designed to prevent individuals at risk of developing

diabetes from developing Type 2 diabetes.

* (gg) addiction and mental health services and supports provided by

facilities licensed pursuant to article thirty-six of the mental hygiene

law.

* NB There are 3 par (gg)'s

* (gg) all buprenorphine products, methadone or long acting injectable

naltrexone for detoxification or maintenance treatment of a substance

use disorder prescribed according to generally accepted national

professional guidelines for the treatment of a substance use disorder.

Such medication assisted treatment shall not be subject to any prior

authorization mandate.

* NB There are 3 par (gg)'s

* (gg) care and services provided by mental health counselors and

marriage and family therapists licensed pursuant to article one hundred

sixty-three of the education law acting within their scope of practice,

where such services would otherwise be covered under this title. Nothing

in this paragraph shall be construed to modify or expand the scope of

practice of a mental health counselor or marriage and family therapist

licensed pursuant to article one hundred sixty-three of the education

law.

* NB There are 3 par (gg)'s

(hh) The commissioner is authorized to establish one or more maternal

health promotion pilot programs in one or more counties or regions of

the state, for the purpose of providing Medicaid reimbursement of the

prenatal maternal childbirth education and preparation classes for

enrollees, and transportation to and from such classes, for the purpose

of improving maternal outcomes and reducing maternal-infant mortality.

The commissioner is authorized to establish fees for the reimbursement

of such classes, subject to the approval of the state director of the

budget.

(ii) Care and services provided by clinical social workers licensed

pursuant to article one hundred fifty-four of the education law acting

within their scope of practice, where such services would otherwise be

covered under this title.

* (jj) pre-natal and postpartum care and services for the purpose of

improving maternal health outcomes and reduction of maternal mortality

when such services are recommended by a physician or other health care

practitioner authorized under title eight of the education law, and

provided by qualified practitioners. Such services shall include but not

be limited to nutrition services provided by certified dietitians and

certified nutritionists; care coordination, case management, and peer

support; patient navigation services; services by licensed clinical

social workers; dyadic services; Bluetooth-enabled devices for remote

patient monitoring; remote ultrasound scans; remote fetal non-stress

tests and other services determined by the commissioner of health;

provided, however, that the provisions of this paragraph shall not take

effect unless there is federal financial participation. Nothing in this

paragraph shall be construed to modify any licensure, certification or

scope of practice provision under title eight of the education law.

* NB There are 2 par (jj)'s

* (jj) applied behavior analysis, under article one hundred

sixty-seven of the education law, provided by a person licensed,

certified, or otherwise authorized to provide applied behavior analysis

under that article.

* NB There are 2 par (jj)'s

* (kk) community health worker services which shall include, but not

be limited to, culturally appropriate patient education, health care

navigation, care coordination including the development of a care plan,

patient advocacy, and support services for the management of chronic

conditions for children under age twenty-one, and for adults with

health-related social needs, when such services are recommended by a

physician or other health care practitioner authorized under title eight

of the education law, and provided by qualified community health

workers, as determined by the commissioner of health; provided, however,

that the provisions of this paragraph shall not take effect unless all

necessary approvals under federal law and regulation have been obtained

to receive federal financial participation in the costs of health care

services provided pursuant to this paragraph. Nothing in this paragraph

shall be construed to modify any licensure, certification or scope of

practice provision under title eight of the education law.

* NB There are 2 par (kk)'s

* (kk) care and services of nutritionists and dietitians certified

pursuant to article one hundred fifty-seven of the education law acting

within their scope of practice.

* NB There are 2 par (kk)'s

(ll) Chronic Disease Self-Management Program for persons diagnosed

with arthritis when such services are ordered by a physician, registered

physician's assistant, registered nurse practitioner, or licensed

midwife and provided by qualified educators, as determined by the

commissioner of health, subject to federal financial participation.

Nothing in this paragraph shall be construed to modify any licensure,

certification or scope of practice provision under title eight of the

education law.

(mm) (i) biomarker precision medical testing for the purposes of

diagnosis, treatment, or appropriate management of, or ongoing

monitoring to guide treatment decisions for, a recipient's disease or

condition when one or more of the following recognizes the efficacy and

appropriateness of biomarker precision medical testing for diagnosis,

treatment, appropriate management, or guiding treatment decisions for a

recipient's disease or condition:

(1) labeled indications for a test approved or cleared by the federal

food and drug administration or indicated tests for a food and drug

administration approved drug;

(2) centers for medicare and medicaid services national coverage

determinations or medicare administrative contractor local coverage

determinations; or

(3) nationally recognized clinical practice guidelines.

(ii) As used in this paragraph, the following terms shall have the

following meanings:

(1) "Biomarker" means a characteristic that is measured as an

indicator of normal biological processes, pathogenic processes, or

responses to an exposure or intervention, including therapeutic

interventions.

(2) "Biomarker precision medical testing" means the analysis of a

patient's tissue, blood, or other biospecimen for the presence of a

biomarker. Biomarker testing includes but is not limited to

single-analyte tests and multi-plex panel tests performed at a

participating in-network laboratory facility that is either CLIA

certified or CLIA waived by the federal food and drug administration.

(3) "Nationally recognized clinical practice guidelines" means

evidence-based clinical practice guidelines informed by a systematic

review of evidence and an assessment of the benefits, and risks of

alternative care options intended to optimize patient care developed by

independent organizations or medical professional societies utilizing a

transparent methodology and reporting structure and with a conflict of

interest policy.

(iii) Coverage of biomarker precision medical testing provided under

this paragraph shall not require a deviation from the review for

standard coverage or any existing process used to determine medical

necessity.

(nn) (i) Medical assistance shall include the coverage of the

following services for individuals when a medical treatment may directly

or indirectly cause iatrogenic infertility, which is an impairment of

fertility resulting from surgery, radiation, chemotherapy, sickle cell

treatment, or other medical treatment affecting reproductive organs or

processes:

(1) standard fertility preservation services to prevent or treat

infertility, which shall include medically necessary collection,

freezing, preservation and storage of oocytes or sperm, and such other

standard services that are not experimental or investigational; together

with prescription drugs, which shall be limited to federal food and drug

administration approved medications and subject to medical assistance

program coverage requirements. In vitro fertilization (IVF) shall not be

covered as a fertility preservation service; and

(2) coverage of the costs of storage of oocytes or sperm shall be

subject to continued medical assistance program eligibility for

individuals when a medical treatment may directly or indirectly cause

iatrogenic infertility, and shall terminate upon any discontinuance of

medical assistance eligibility.

(ii) In the event that federal financial participation for such

fertility preservation services is not available, medical assistance

shall not include coverage of these services.

3. Any inconsistent provisions of this section notwithstanding,

medical assistance shall include:

(a) early and periodic screening and diagnosis of eligible persons

under six years of age and, in accordance with federal law and

regulations, early and periodic screening and diagnosis of eligible

persons under twenty-one years of age to ascertain physical and mental

disabilities; and

(b) care and treatment of disabilities and conditions discovered by

such screening and diagnosis including such care, services and supplies

as the commissioner shall by regulation require to the extent necessary

to conform to applicable federal law and regulations.

(c) screening, diagnosis, care and treatment of disabilities and

conditions discovered by such screening and diagnosis of eligible

persons ages three to twenty-one, inclusive, including such care,

services and supplies as the commissioner shall by regulation require to

the extent necessary to conform to applicable federal law and

regulations, provided that such screening, diagnosis, care and treatment

shall include the provision of evaluations and related services rendered

pursuant to article eighty-nine of the education law and regulations of

the commissioner of education by persons qualified to provide such

services thereunder.

(d) family planning services and twelve months of supplies for

eligible persons of childbearing age, including children under

twenty-one years of age who can be considered sexually active, who

desire such services and supplies, in accordance with the requirements

of federal law and regulations and the regulations of the department.

Coverage of prescription contraceptives shall include a twelve-month

supply that may be dispensed at one time or up to twelve times within

one year from the date of the prescription. No person shall be compelled

or coerced to accept such services or supplies.

4. Any inconsistent provision of law notwithstanding, medical

assistance shall not include, unless required by federal law and

regulation as a condition of qualifying for federal financial

participation in the medicaid program, the following items of care,

services and supplies:

(a) drugs which may be dispensed without a prescription as required by

section sixty-eight hundred ten of the education law; provided, however,

that the state commissioner of health may by regulation specify certain

of such drugs which may be reimbursed as an item of medical assistance

in accordance with the price schedule established by such commissioner.

Notwithstanding any other provision of law, modifications to the list of

drugs reimbursable under this paragraph may be filed as regulations by

the commissioner of health without prior notice and comment; provided,

however, that the department will notify enrollees of any eliminations

to the list of drugs reimbursable under this paragraph at least sixty

days prior to the removal of such drug. Such eliminations shall be

referred to the drug utilization review board established pursuant to

section three hundred sixty-nine-bb of this article for recommendation

prior to elimination from the list;

(a-1) (i) a brand name drug for which a multi-source therapeutically

and generically equivalent drug, as determined by the federal food and

drug administration, is available, unless previously authorized by the

department of health. The commissioner of health is authorized to

exempt, for good cause shown, any brand name drug from the restrictions

imposed by this subparagraph;

(ii) notwithstanding the provisions of subparagraph (i) of this

paragraph, the commissioner is authorized to deny reimbursement for a

generic equivalent, including a generic equivalent that is on the

preferred drug list or the clinical drug review program, when the net

cost of the brand name drug, after consideration of all rebates, is less

than the cost of the generic equivalent, unless prior authorization is

obtained under section two hundred seventy-three of the public health

law;

(a-2) drugs which may not be dispensed without a prescription as

required by section sixty-eight hundred ten of the education law, and

which are non preferred drugs pursuant to section two hundred

seventy-two of the public health law, or the clinical drug review

program under section two hundred seventy-four of the public health law,

unless prior authorization is granted or not required;

(b) care and services of chiropractors and supplies related to the

practice of chiropractic, except as provided for by the commissioner

pursuant to a pilot program approved under federal law and regulation;

(c) care and services of an optometrist for using drugs in excess of

the maximum reimbursable amounts for optometric care and services

established by the commissioner and approved by the director of the

budget;

(d) any medical care, services or supplies furnished outside the

state, except, when prior authorized in accordance with department

regulations or for care, services and supplies furnished: as a result of

a medical emergency; because the recipient's health would have been

endangered if he or she had been required to travel to the state;

because the care, services or supplies were more readily available in

the other state; or because it is the general practice for persons

residing in the locality wherein the recipient resides to use medical

providers in the other state;

(e) drugs, procedures and supplies for the treatment of erectile

dysfunction when provided to, or prescribed for use by, a person who is

required to register as a sex offender pursuant to article six-C of the

correction law, provided that any denial of coverage pursuant to this

paragraph shall provide the patient with the means of obtaining

additional information concerning both the denial and the means of

challenging such denial; or

(f) drugs for the treatment of sexual or erectile dysfunction, unless

such drugs are used to treat a condition, other than sexual or erectile

dysfunction, for which the drugs have been approved by the federal food

and drug administration.

(g) for eligible persons who are also beneficiaries under part D of

title XVIII of the federal social security act, drugs which are

denominated as "covered part D drugs" under section 1860D-2(e) of such

act.

(h) opioids prescribed in violation of the treatment plan standards of

subdivision eight of section thirty-three hundred thirty-one of the

public health law or treatment plan standards as otherwise required by

the commissioner.

5. (a) Medical assistance shall include surgical benefits for

emergency or urgent surgery for the alleviation of severe pain, for

immediate diagnosis or treatment of conditions which threaten disability

or death if not promptly diagnosed or treated.

(b) Medical assistance shall include surgical benefits for certain

surgical procedures which meet standards for surgical intervention, as

established by the state commissioner of health on the basis of

medically indicated risk factors, and medically necessary surgery where

delay in surgical intervention would substantially increase the medical

risk associated with such surgical intervention.

(c) Medical assistance shall include surgical benefits for other

deferrable surgical procedures specified by the state commissioner of

health, based on the likelihood that deferral of such procedures for six

months or more may jeopardize life or essential function, or cause

severe pain; provided, however, such deferrable surgical procedures

shall be included in the case of in-patient surgery only when a second

written opinion is obtained from a physician, or as otherwise

prescribed, in accordance with regulations established by the state

commissioner of health, that such surgery should not be deferred.

(d) Medical assistance shall include a maximum of one patient day of

pre-operative hospital care for surgery authorized by paragraphs (b) or

(c) of this subdivision; provided, however, that with respect to

specific surgical procedures which the state commissioner of health has

identified as requiring more than one patient day of pre-operative care,

medical assistance shall include such longer maximum period of

pre-operative care as such commissioner has identified as necessary.

(e) Medical assistance shall not include any in-patient surgical

procedures or any care, services or supplies related to such surgery

other than those authorized by this subdivision.

6. Any inconsistent provision of law notwithstanding, medical

assistance shall also include payment for medical care, services or

supplies furnished to eligible pregnant persons pursuant to section

three hundred sixty-six and subdivision five of section three hundred

sixty-four-i of this title, to the extent that and for so long as

federal financial participation is available therefor; provided,

however, that nothing in this section shall be deemed to affect payment

for such medical care, services or supplies if federal financial

participation is not available for such care, services and supplies

solely by reason of the immigration status of the otherwise eligible

pregnant person.

7. Medical assistance shall also include disproportionate share

payments to general hospitals under the public health law.

8. When a non-governmental entity is authorized by the department

pursuant to contract or subcontract to make prior authorization or prior

approval determinations that may be required for any item of medical

assistance, a recipient may challenge any action taken or failure to act

in connection with a prior authorization or prior approval determination

as if such determination were made by a government entity, and shall be

entitled to the same medical assistance benefits and standards and to

the same notice and procedural due process rights, including a right to

a fair hearing and aid continuing pursuant to section twenty-two of this

chapter, as if the prior authorization or prior approval determination

were made by a government entity, without regard to expiration of the

prior service authorization.

9. (a) Notwithstanding any inconsistent provision of law, any

utilization controls on occupational therapy or physical therapy,

including but not limited to, prior approval of services, utilization

thresholds or other limitations imposed on such therapy services in

relation to a chronic condition in clinics certified under article

twenty-eight of the public health law or article sixteen of the mental

hygiene law shall be: (i) developed by the department of health in

concurrence with the office for people with developmental disabilities;

and (ii) in accord with nationally recognized professional standards. In

the event that nationally recognized professional standards do not

exist, such thresholds shall be based upon the reasonably recognized

professional standards of those with a specific expertise in treating

individuals served by clinics certified under article twenty-eight of

the public health law or article sixteen of the mental hygiene law.

(b) Prior approval by the department of health of a physical therapy

evaluation or an occupational therapy evaluation by a qualified

practitioner practicing within the scope of such practitioner's

licensure shall not be required. The department may require prior

approval for treatment as recommended by such an evaluation. In the

event that prior approval is required, and the department fails to make

a determination within eight days of presentation of a treatment request

for physical or occupational therapy services, the department shall

automatically approve four therapy visits. In the case of any denial of

a prior approval request for physical therapy or occupational therapy,

the department shall provide a reasonable opportunity for the qualified

practitioner to provide his or her assessment of the beneficiary's

physical and functional status as documented in a treatment plan with

reasonable and obtainable goals. If, upon completion of such four

therapy visits, the department has not yet rendered a determination on

the request for physical or occupational therapy services, the

department shall automatically approve an additional four therapy

visits. Subsequent automatic approvals shall be issued in the same

manner until such time as the department issues a determination, but in

no event shall such approvals exceed the number of services or the

period of time recommended by the evaluation. If the qualified

practitioner provides documentation that is in accord with reasonably

recognized professional standards, the recommended treatment plan shall

be final, and the prior approval request shall be approved.

10. The department of health shall establish or procure the services

of an independent assessor or assessors no later than October 1, 2022,

in a manner and schedule as determined by the commissioner of health, to

take over from local departments of social services, Medicaid Managed

Care providers, and Medicaid managed long term care plans performance of

assessments and reassessments required for determining individuals'

needs for personal care services, including as provided through the

consumer directed personal assistance program, and other services or

programs available pursuant to the state's medical assistance program as

determined by such commissioner for the purpose of improving efficiency,

quality, and reliability in assessment and to determine individuals'

eligibility for Medicaid managed long term care plans. Notwithstanding

the provisions of section one hundred sixty-three of the state finance

law, or sections one hundred forty-two and one hundred forty-three of

the economic development law, or any contrary provision of law,

contracts may be entered or the commissioner may amend and extend the

terms of a contract awarded prior to the effective date and entered into

to conduct enrollment broker and conflict-free evaluation services for

the Medicaid program, if such contract or contract amendment is for the

purpose of procuring such assessment services from an independent

assessor. Contracts entered into, amended, or extended pursuant to this

subdivision shall not remain in force beyond September 30, 2028.