N.Y. Social Services Law § 367-r: Private duty nursing services worker recruitment and retention program

§ 367-r. Private duty nursing services worker recruitment and

retention program. 1. (a) The commissioner of health, with the approval

of the director of the budget, shall establish fees for the

reimbursement of private duty nursing services.

(b) The commissioner of health shall, subject to the provisions of

paragraph (b) of subdivision two of this section and to the availability

of federal financial participation, increase medical assistance rates of

payment by three percent for services provided on and after December

first, two thousand two, for private duty nursing services for the

purposes of improving recruitment and retention of private duty nurses.

2. Medically fragile children and medically fragile adults. (a) In

addition, the commissioner shall further increase rates for private duty

nursing services that are provided to medically fragile children to

ensure the availability of such services to such children. Furthermore,

no later than sixty days after the effective date of the chapter of the

laws of two thousand twenty-two that amended this subdivision, increased

rates shall be extended for private duty nursing services provided to

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. Medically fragile

children shall, for the purposes of this subdivision, have the same

meaning as in subdivision three-a of section thirty-six hundred fourteen

of the public health law. For purposes of this subdivision, "medically

fragile adult" shall be defined as including but not limited to any

individual who previously qualified as a medically fragile child but no

longer meets the age requirement. Such increased rates for services

rendered to such children and adults may take into consideration the

elements of cost, geographical differentials in the elements of cost

considered, economic factors in the area in which the private duty

nursing service is provided, costs associated with the provision of

private duty nursing services to medically fragile children and

medically fragile adults, and the need for incentives to improve

services and institute economies and such increased rates shall be

payable only to those private duty nurses who can demonstrate, to the

satisfaction of the department of health, satisfactory training and

experience to provide services to such children and medically fragile

adults. Such increased rates shall be determined based on application of

the case mix adjustment factor for AIDS home care program services rates

as determined pursuant to applicable regulations of the department of

health. The commissioner may promulgate regulations to implement the

provisions of this subdivision.

(b) Private duty nursing services providers which have their rates

adjusted pursuant to paragraph (b) of subdivision one of this section

and paragraph (a) of this subdivision shall use such funds solely for

the purposes of recruitment and retention of private duty nurses or to

ensure the delivery of private duty nursing services to medically

fragile children and medically fragile adults and are prohibited from

using such funds for any other purpose. Funds provided under paragraph

(b) of subdivision one of this section and paragraph (a) of this

subdivision are not intended to supplant support provided by a local

government. Each such provider, with the exception of self-employed

private duty nurses, shall submit, at a time and in a manner to be

determined by the commissioner of health, a written certification

attesting that such funds will be used solely for the purpose of

recruitment and retention of private duty nurses or to ensure the

delivery of private duty nursing services to medically fragile children

and medically fragile adults. The commissioner of health is authorized

to audit each such provider to ensure compliance with the written

certification required by this subdivision and shall recoup all funds

determined to have been used for purposes other than recruitment and

retention of private duty nurses or the delivery of private duty nursing

services to medically fragile children and medically fragile adults.

Such recoupment shall be in addition to any other penalties provided by

law.

(c) The commissioner of health shall, subject to the provisions of

paragraph (b) of this subdivision, and the provisions of subdivision

three of this section, and subject to the availability of federal

financial participation, annually increase fees for the fee-for-service

reimbursement of private duty nursing services provided to medically

fragile children by fee-for-service private duty nursing services

providers who enroll and participate in the provider directory pursuant

to subdivision three of this section, over a period of three years,

commencing October first, two thousand twenty, by one-third annual

increments, until such fees for reimbursement equal the final benchmark

payment designed to ensure adequate access to the service. In developing

such benchmark the commissioner of health may utilize the average two

thousand eighteen Medicaid managed care payments for reimbursement of

such private duty nursing services. The commissioner may promulgate

regulations to implement the provisions of this paragraph.

(d) The commissioner of health shall, subject to the provisions of

paragraph (b) of this subdivision, and the provisions of subdivision

three of this section, and subject to the availability of federal

financial participation, increase fees for the fee-for-service

reimbursement of private duty nursing services provided to medically

fragile adults by fee-for-service private duty nursing services

providers who enroll and participate in the provider directory pursuant

to subdivision three of this section, no later than sixty days after the

effective date of the chapter of the laws of two thousand twenty-two

that amended this subdivision, so such fees for reimbursement equal the

benchmark payment designed to ensure adequate access to the service. In

developing such benchmark the commissioner of health may utilize the

average two thousand twenty Medicaid managed care payments for

reimbursement of such private duty nursing services. The commissioner

may promulgate regulations to implement the provisions of this

paragraph.

3. Provider directory for fee-for-service private duty nursing

services provided to medically fragile children and medically fragile

adults. The commissioner of health is authorized to establish a

directory of qualified providers for the purpose of promoting the

availability and ensuring delivery of fee-for-service private duty

nursing services to medically fragile children and medically fragile

adults. Qualified providers enrolling in the directory shall ensure the

availability and delivery of and shall provide such services to those

individuals as are in need of such services, and shall receive increased

reimbursement for such services pursuant to paragraphs (c) and (d) of

subdivision two of this section. The directory shall offer enrollment to

all private duty nursing services providers to promote and ensure the

participation in the directory of all nursing services providers

available to serve medically fragile children and medically fragile

adults.