§ 3605 — Licensure of home care services agencies

§ 3605. Licensure of home care services agencies. 1. After April\nfirst, nineteen hundred eighty-six, no home care services agency which\nis engaged in providing, directly or through contract arrangement,\nnursing services, home health aide services, or personal care services\nshall be operated without a license issued by the commissioner in\naccordance with the standards set forth in this section; provided\nhowever, an agency which provides personal care or home care services\nexclusively to individuals pursuant to a program administered, operated\nor regulated by another state agency or an organization licensed and\noperating exclusively as a nurses' registry pursuant to article eleven\nof the general business law shall be exempt from the licensure\nrequirements of this chapter. The licensure requirements of this chapter\nshall not apply to sole practitioners licensed pursuant to sections six\nthousand nine hundred five and six thousand nine hundred six of the\neducation law.\n 1-a. (a) Core public health services, as defined in section six\nhundred two of this chapter, when provided in the home by the local\nhealth department of a county or of the city of New York, shall not\nrequire licensure under this section if such core public services\nrequire only minimal patient contact. Patient contact shall be\nconsidered minimal if it is of limited duration for acute or non-chronic\nconditions, including but not limited to any health conditions posing a\npotential threat to public health, and treatment is generally expected\nto require no more than six patient visits; provided, however, that a\nlocal health department may exceed six visits in the interest of patient\nsafety and public health.\n (b) Core public health services that may be provided without a license\npursuant to this subdivision include but are not limited to:\nimmunizations; testing for tuberculosis and observation of tuberculosis\nself-directed therapy; verbal assessment, counseling and referral\nservices; and such other services as may be determined by the\ndepartment, provided that such services shall not include home health\naide services, personal care services, or nursing services that require\nmore than minimal patient contact.\n 1-b. Core public health services, as defined in section six hundred\ntwo of this chapter, when provided by local health departments in the\nhome as authorized under subdivision one-a of this section, may be\neligible for reimbursement under title XIX of the federal Social\nSecurity Act, provided that the services meet federal and state\nrequirements for such reimbursement.\n 2. The commissioner shall not issue a license to any home care\nservices agency except with the written approval of the public health\nand health planning council issued pursuant to the provisions of this\nsection.\n 3. An application for licensure as a home care services agency shall\nbe filed with the public health and health planning council together\nwith such other forms and information as shall be prescribed by, or\nacceptable to, the public health and health planning council.\nThereafter, the public health and health planning council shall forward\nfor comment, if any, a copy of the application for licensure and\naccompanying documents to the health systems agency, if any, having\ngeographical jurisdiction of the area where the services of the proposed\nagency are to be offered. The public health and health planning council\nshall act upon such application, after the health systems agency has had\nreasonable time to submit its comments, based solely upon criteria\nprovided for in subdivision four of this section. If the public health\nand health planning council proposes to disapprove the application, it\nshall notify the applicant, provide reasons for disapproval and afford\nthe applicant a hearing on the application, if requested, or on its own\nmotion. Any hearing held pursuant to this subdivision may be conducted\nby the public health and health planning council or by any individual\ndesignated by the public health and health planning council.\n 4. The public health and health planning council shall not approve an\napplication for licensure unless it is satisfied as to: (a) the public\nneed for the existence of the licensed home health care service agency\nat the time and place and under the circumstances proposed; (b) the\ncharacter, competence and standing in the community of the applicant's\nincorporators, directors, sponsors, stockholders or operators; (c) the\nfinancial resources of the proposed licensed home health care service\nagency and its sources of financial revenues; and (d) such other matters\nas it shall deem pertinent.\n 5. A license shall not be issued by the commissioner unless he finds\nthat the equipment, personnel, rules, standards of care, and home care\nservices are fit and adequate, and that the home care services will be\nprovided in the manner required by this article and the rules and\nregulations thereunder.\n 6. Neither tax status nor profit-making status shall be criteria for\nlicensure.\n 7. An agency licensed pursuant to this section shall be authorized to\nprovide nursing services, home health aide services or personal care\nservices.\n 8. Agencies licensed pursuant to this section but not certified\npursuant to section three thousand six hundred eight of this article,\nshall not be qualified to participate as a home health agency under the\nprovisions of title XVIII or XIX of the federal Social Security Act\nprovided, however, an agency which has a contract with a state agency or\nits locally designated office or, as specified by the commissioner, with\na managed care organization participating in the managed care program\nestablished pursuant to section three hundred sixty-four-j of the social\nservices law or with a managed long term care plan established pursuant\nto section forty-four hundred three-f of this chapter, may receive\nreimbursement under title XIX of the federal Social Security Act.\n * 9. An entity which seeks approval as a limited home care services\nagency must meet the requirements of this section, the rules and\nregulations of the department, and must be a certified operator of an\nadult home or enriched housing program pursuant to article seven of the\nsocial services law. The commissioner shall approve only those\napplicants that the commissioner of the department of social services\nhas listed as eligible pursuant to the requirements of paragraph (a) of\nsubdivision eleven of this section.\n * NB Expires June 30, 2027\n * 10. The department shall notify the department of social services of\nany action taken against a limited home care services agency pursuant to\nsection thirty-six hundred five-a of this article.\n * NB Expires June 30, 2027\n * 11. For purposes of this subdivision, eligibility of limited home\ncare services agencies licensed by the department shall be as follows:\n (a) Only those certified operators of adult homes and enriched housing\nprograms that provide services that are consistent with the needs of\neach resident, meet the standards governing the operation of such\nfacilities in accordance with the provisions of article seven of the\nsocial services law, and provide quality care shall be considered by the\ndepartment as eligible for licensure.\n (b) An operator that has received current official written notice from\nthe department of social services of any enforcement action pursuant to\nsection four hundred sixty-d of the social services law shall not be\neligible for such certification.\n (c) Such current enforcement action, when resolved to the satisfaction\nof the commissioner of social services, shall not itself preclude an\notherwise eligible applicant from licensure approval but shall be\nconsidered by the department in determining the character, competence,\nand standing in the community of the applicant pursuant to subdivision\nfour of this section.\n (d) If the department receives notice from the department of social\nservices that a certified operator of an adult home or enriched housing\nprogram that is licensed as a limited home care services agency has\nreceived official written notice from the department of social services\nof a proposed enforcement action taken pursuant to section four hundred\nsixty-d of the social services law, the department shall review the\ndelivery of home care services to determine whether such agency is\nmeeting all applicable regulations and standards.\n * NB Expires June 30, 2027\n * 12. Notwithstanding any law to the contrary, the commissioner shall\nhave the authority to limit the number of adult homes and enriched\nhousing programs eligible for licensure under this section.\n * NB Expires June 30, 2027\n 13. The commissioner shall charge to applicants for the licensure of\nhome care services agencies an application fee of two thousand dollars.\nAll fees pursuant to this section shall be payable to the department of\nhealth for deposit into the special revenue funds - other, miscellaneous\nspecial revenue fund - 339, certificate of need account.\n 14. Notwithstanding any contrary provision of law and subject to the\navailability of federal financial participation, for periods on and\nafter April first, two thousand fourteen, the commissioner is authorized\nto make temporary periodic lump-sum Medicaid payments to licensed home\ncare service agencies ("LHCSA") principally engaged in providing home\nhealth services to Medicaid patients, in accordance with the following:\n (a) Eligible LHCSA providers shall include:\n (i) providers undergoing closure;\n (ii) providers impacted by the closure of other health care providers;\n (iii) providers subject to mergers, acquisitions, consolidations or\nrestructuring;\n (iv) providers impacted by the merger, acquisition, consolidation or\nrestructuring of other health care providers; or\n (v) providers seeking to ensure that access to care is maintained.\n (b) Providers seeking Medicaid payments under this subdivision shall\ndemonstrate through submission of a written proposal to the commissioner\nthat the additional resources provided by such Medicaid payments will\nachieve one or more of the following:\n (i) protect or enhance access to care;\n (ii) protect or enhance quality of care;\n (iii) improve the cost effectiveness of the delivery of health care\nservices; or\n (iv) otherwise protect or enhance the health care delivery system, as\ndetermined by the commissioner.\n (c) (i) Such written proposal shall be submitted to the commissioner\nat least sixty days prior to the requested commencement of such Medicaid\npayments and shall include a proposed budget to achieve the goals of the\nproposal. Any Medicaid payments issued pursuant to this subdivision\nshall be made over a specified period of time, as determined by the\ncommissioner, of up to three years. At the end of the specified\ntimeframe such payments shall cease. The commissioner may establish, as\na condition of receiving such Medicaid payments, benchmarks and goals to\nbe achieved in conformity with the provider's written proposal as\napproved by the commissioner and may also require that the provider\nsubmit such periodic reports concerning the achievement of such\nbenchmarks and goals as the commissioner deems necessary. Failure to\nachieve satisfactory progress, as determined by the commissioner, in\naccomplishing such benchmarks and goals shall be a basis for ending the\nprovider's Medicaid payments prior to the end of the specified\ntimeframe.\n (ii) The commissioner may require that applications submitted pursuant\nto this subdivision be submitted in response to and in accordance with a\nRequest For Applications or a Request For Proposals issued by the\ncommissioner.\n