There is a newer version of the New York Consolidated Laws
2006 New York Code - 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).
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. Rates of payment for continuous
nursing services for medically fragile children 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 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. 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 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.
* NB Effective January 1, 2007; Repealed January 1, 2009
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
and must 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.
(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. In order to determine the appropriateness
of the exclusion of hospital-based certified home health agencies and
the allocation to publicly sponsored certified home health agencies
pursuant to this paragraph, the commissioner on or before April
thirtieth, nineteen hundred ninety-one and annually thereafter shall
report to the governor, the chairmen of the senate finance and assembly
ways and means committees and the chairmen of the senate and assembly
standing committees on health comparing the levels of bad debt and
charity care coverage for all certified home health agencies and
indicating whether such coverage is equitable, within a five percent
differential, between hospital-based, public, other voluntary non-profit
and private proprietary certified home health agencies considering the
availability of all other forms of financial support or subsidies for
this purpose. Should the differential of the preceding be greater than
five percent, the commissioner shall recommend modifications to the
provisions of this paragraph, and to any associated regulations, as may
be necessary to achieve equitable levels of bad debt and charity care
coverage.
(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) 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, 2006
* 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 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.
(b) For purposes of this subdivision, real property capital
construction costs shall only be included in rates of payment for
assisted living programs if: (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.
* NB There are 2 sub 6's
* 6. Subject to the availability of funds, the commissioner shall
authorize health occupation development and workplace demonstration
programs pursuant to the provisions of section twenty-eight hundred
seven-h of this chapter for certified home health agencies, long term
home health care programs and AIDS home care programs, and the
commissioner is hereby directed to make rate adjustments to cover the
cost of such programs.
* NB Effective until July 1, 2007
* 6. Subject to the availability of funds, the provisions of clause
(B) of subparagraph (iii) of paragraph (e) of subdivision one of section
twenty-eight hundred seven-c of this chapter shall apply to certified
home health agencies, long term home health care programs and AIDS home
care programs.
* NB Effective July 1, 2007
* NB There are 2 sub 6's
* 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 the rate period January first, two
thousand five through December thirty-first, two thousand five, there
shall be no such reconciliation of the amount of savings in excess of or
lower than one million five hundred thousand dollars.
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.
* NB Expires March 31, 2007
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 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.
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, 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 (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,
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 April 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;
10. (a) Such adjustments to rates of payments shall be allocated
proportionally based on each certified home health agency's, 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, as reported in each such agency's cost report as submitted to
the department prior to November first, two thousand five 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.
(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 aids 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
(v) Providing enhanced access to care for high need populations;
(vi) 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 April first, two thousand six
through March thirty-first, two thousand seven, 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.
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