N.Y. Social Services Law § 367-c: Payment for long term home health care programs

§ 367-c. Payment for long term home health care programs. 1. If a long

term home health care program as defined under article thirty-six of the

public health law is provided in the social services district for which

he has authority, the local social services official, before he

authorizes care in a nursing home or intermediate care facility for a

person eligible to receive services under this title, shall notify the

person in writing of the provisions of this section.

2. If a person eligible to receive services under the provisions of

this title who requires care, treatment, maintenance, nursing or other

services in a nursing home desires to remain and is deemed by his

physician able to remain in his own home or the home of a responsible

relative or other responsible adult if the necessary services are

provided, such person or his representative shall so inform the local

social services official. If a long term home health care program as

defined under article thirty-six of the public health law is provided in

the social services district for which he has authority, such official

shall authorize an assessment under the provisions of section thirty-six

hundred sixteen of the public health law. If the results of the

assessment indicate that the person can receive the appropriate level of

care at home, the official shall prepare for that person a plan for the

provision of services comparable to those that would be rendered in a

nursing home. In developing such plan, the official shall consult with

those persons performing the assessment. The services shall be provided

by a certified home health agency, hospital, or residential health care

facility authorized by the commissioner of health under article

thirty-six of the public health law to provide a long term home health

care program. At the time of the initial assessment, and at the time of

each subsequent assessment performed under the provisions of section

thirty-six hundred sixteen of the public health law, or more often if

the person's needs require, the official shall establish a monthly

budget in accordance with which he shall authorize payment for the

services provided under such plan. Total monthly expenditures made under

this title for such person shall not exceed a maximum of seventy-five

per cent, or such lesser percentage as may be determined by the

commissioner, of the average of the monthly rates payable under this

title for nursing home services within the social services district for

which the official has authority. However, if a continuing assessment of

the person's needs demonstrates that he requires increased services, the

social services official may authorize the expenditure of any amount

accrued under this section during the past twelve months as a result of

the expenditures for that person not exceeding such maximum. If an

assessment of the person's needs demonstrates that he requires services

the payment for which would exceed such monthly maximum, but it can be

reasonably anticipated that total expenditures for required services for

such person will not exceed such maximum calculated over a one year

period, the social services official may authorize payment for such

services.

3. If a person eligible to receive services under the provisions of

this title who requires health related care and services in an

intermediate care facility desires to remain and is deemed by his

physician able to remain in his own home or the home of a responsible

relative or other responsible adult if the necessary services are

provided, such person or his representative shall so inform the local

social services official. If a long term home health care program as

defined under article thirty-six of the public health law is provided in

the social services district for which he has authority, such official

shall authorize an assessment under the provisions of section thirty-six

hundred sixteen of the public health law. If the results of the

assessment indicate that the person can receive the appropriate level of

care at home, the official shall prepare for that person a plan for the

provision of services comparable to those that would be rendered in an

intermediate care facility. In developing such plan, the official shall

consult with those persons performing the assessment. The services shall

be provided by a certified home health agency, hospital, or residential

health care facility authorized by the commissioner of health under

article thirty-six of the public health law to provide a long term home

health care program. At the time of the initial assessment and at the

time of each subsequent assessment performed under the provisions of

section thirty-six hundred sixteen of the public health law, or more

often if the person's needs require, the official shall establish a

monthly budget in accordance with which he shall authorize payment for

the services provided under that plan. Total monthly expenditures made

under this title for such person shall not exceed a maximum of

seventy-five per cent, or such lesser percentage as may be determined by

the commissioner, of the average of the monthly rates paid under this

title for the provision of health related care and services in

intermediate care facilities within the social services district for

which the official has authority. However, if a continuing assessment of

the person's needs demonstrates that he requires increased services, the

social services official may authorize the expenditure of any amount

accrued under this section during the past twelve months as a result of

the expenditures for that person not exceeding such maximum. If an

assessment of the person's needs demonstrates that he requires services

the payment for which would exceed such monthly maximum, but it can be

reasonably anticipated that total expenditures for required services for

such person will not exceed such maximum calculated over a one year

period, the social services official may authorize payment for such

services.

3-a. (a) Notwithstanding any inconsistent provision of this section,

the commissioner is authorized and directed to establish a demonstration

program for the purpose of determining the impact of raising the

limitation on expenditures for the delivery of long term home health

care services to persons with special needs as defined in this

subdivision. Pursuant to such program, the commissioner shall permit

local social services officials to authorize, at their discretion, and

only after a determination that the maximum expenditure available

pursuant to subdivisions two and three of this section is not sufficient

to provide or continue to provide long term home health care services to

persons with special needs, maximum monthly expenditures for services

under this title to such persons, not to exceed one hundred percent of

the average of the monthly rates payable under this title for services

in a nursing home or intermediate care facility within the social

services district for which the social services official has authority.

However, if a continuing assessment of a person with special needs

demonstrates that he requires increased services, the social services

official may authorize the expenditure of any amount accrued under this

section during the past twelve months as a result of the expenditures

for that person not having exceeded such maximum. If an assessment of a

person with special needs demonstrates that he requires increased

services the payment for which would exceed such monthly maximum, but it

can be reasonably anticipated that total expenditures for required

services for such person will not exceed such maximum calculated over a

one year period, the social services official may authorize payment for

such services.

(b) As used in this subdivision, the term "person with special needs"

shall mean a person for whom a plan of care has been developed pursuant

to subdivision two or three of this section who (1) needs care including

but not limited to respiratory therapy, tube feeding, decubitus care or

insulin therapy which cannot be appropriately provided by a personal

care aide as defined in regulations issued by the commissioner, or (2)

has one or more of the following conditions: mental disability as

defined in section 1.03 of the mental hygiene law, acquired immune

deficiency syndrome, or dementias, including Alzheimer's disease.

(c) The number of persons with special needs for whom a local social

services official may authorize payment for services pursuant to

paragraph (a) of this subdivision shall be limited to twenty-five

percent of the total number of persons, all long term home health care

programs, within a social services district are authorized to serve;

provided, however, in any district containing a city having a population

of one million or more, such limit shall be fifteen percent.

(d) In the event that a district reaches the limitation specified in

paragraph (c) of this subdivision, the local social services official

may, upon the approval of the commissioner, authorize payment for

services, pursuant to paragraph (a) of this subdivision, for additional

persons with special needs.

4. Notwithstanding any inconsistent provision of this section, if two

members of this same household, eligible to receive services under this

title, require care and services in either a nursing home or an

intermediate care facility, and assessments conducted pursuant to the

provisions of this section indicate that such persons can receive the

appropriate level of care at home, then such care may be provided at

home where total monthly expenditures made under this title for such

persons shall not exceed a maximum of seventy-five percent, or such

lesser percentage as may be determined by the commissioner, of the

monthly rates which would be payable under this title for both members

of the household for nursing home and/or intermediate care facility

services within the social services district. If assessments of such

persons' needs demonstrate that they require services the payment for

which would exceed such monthly maximum, but it can be reasonably

anticipated that total expenditures for required services for such

persons will not exceed the maximum calculated over a one year period, a

social services official may authorize payment for such services.

5. If a person eligible to receive services under the provisions of

this title who is medically eligible for care, treatment, maintenance,

nursing or other services in a nursing home or is medically eligible for

health related care and services in an intermediate care facility

desires to and is deemed by his or her physician able to remain in an

adult care facility, other than a shelter for adults, which is able and

willing to retain such person if the necessary services are provided,

such person or his or her representatives shall so inform the local

social services official. If a long term home health care program is

provided in a social services district, an official of such district

shall authorize an assessment under the provisions of section three

thousand six hundred sixteen of the public health law. If the results of

the assessment indicate that the person can receive the appropriate

level of care at such location, and meets the appropriate standards for

continued stay for such facility as are established by law and

regulation, such official shall prepare for that person a plan for the

provision of services. In developing such plan, the official shall

consult with those persons performing the assessment and with the

operator of the adult care facility. The services shall be provided by a

long term home health care program authorized pursuant to article

thirty-six of the public health law, provided, however that

notwithstanding the provisions of section three thousand six hundred

sixteen of such law, services shall not be provided prior to the

completion of the assessment. At the time of the initial assessment and

at the time of each subsequent assessment performed under the provisions

of section three thousand six hundred sixteen of the public health law,

or more often if the person's needs require, the official shall

establish a monthly budget in accordance with which he shall authorize

payment for the services provided under that plan, provided, however

that no services shall be authorized in the plan which the operator of

the facility is required by law and regulation to provide. The long term

home health care program providing services authorized in such plan

shall be solely responsible for managing and providing or arranging for

such authorized services. The operator of the adult care facility shall

be solely responsible for managing and providing those services which

the facility is required by law or regulation to provide. However, the

two entities shall collaborate to assure coordination. Total monthly

expenditures made under this title for such person shall not exceed a

maximum of fifty percent, or such lesser percentage as may be determined

by the commissioner, of the average of the monthly rates paid under this

title for the provision of nursing home services or health related care

and services in intermediate care facilities, whichever is appropriate,

within the social services district for which the official has

authority. However, if a continuing assessment of the person's needs

demonstrates that he or she requires increased services, the social

services official may authorize the expenditure of any amount accrued

under this section during the past twelve months as a result of the

expenditures for that person not exceeding such maximum. If an

assessment of the person's needs demonstrates that he or she requires

services the payment for which would exceed such monthly maximum, but it

can be reasonably anticipated that total expenditures for required

services for such person will not exceed such maximum calculated over a

one year period, the social services official may authorize payment for

such services. The provisions of this subdivision shall not be deemed to

alter standards for admission to an adult care facility nor shall the

admission of a person into such facility be contingent on such person's

enrollment in a long term home health care program.

6. Notwithstanding any inconsistent provision of law but subject to

expenditure limitations of this section, the commissioner, subject to

the approval of the state director of the budget, may authorize the

utilization of medical assistance funds to pay for services provided by

specified long term home health care programs in addition to those

services included in the medical assistance program under section three

hundred sixty-five-a of this chapter, so long as federal financial

participation is available for such services. Expenditures made under

this subdivision shall be deemed payments for medical assistance for

needy persons and shall be subject to reimbursement by the state in

accordance with the provisions of section three hundred sixty-eight-a of

this chapter.

7. No social services district shall make payments pursuant to title

XIX of the federal Social Security Act for benefits available under

title XVIII of such act without documentation that title XVIII claims

have been filed and denied.

8. No social services district shall make payment for a person

receiving a long term home health care program while payments are being

made for that person for inpatient care in a residential health care

facility or hospital.

9. The commissioner, together with the commissioner of health, shall

submit a report to the governor, president pro tem of the senate and

speaker of the assembly by the first day of February, nineteen hundred

eighty, on the implementation of this section. Such report shall include

a statement of the scope and status of long term home health care

programs, the extent to which such programs have affected

institutionalization, the costs associated with such programs, any

recommendations for legislative action, and such other matters as may be

pertinent.

10. This section shall be effective if, and as long as, federal aid is

available therefor.