§ 365-A — Character and adequacy of assistance

New York § 365-A

• Jurisdiction: New York
• Law SOS: Social Services
• Title 11: Medical Assistance For Needy Persons
• Art. 5: Assistance and Care

Text

§ 365-a. Character and adequacy of assistance. The amount, nature and\nmanner of providing medical assistance for needy persons shall be\ndetermined by the public welfare official with the advice of a physician\nand in accordance with the local medical plan, this title, and the\nregulations of the department.\n 1. "Benchmark coverage" shall mean payment of part or all of the cost\nof medically necessary medical, dental, and remedial care, services, and\nsupplies described in subdivision two of this section, and to the extent\nnot included therein, any essential benefits as defined in 42 U.S.C.\n18022(b), with the exception of institutional long term care services;\nsuch care, services and supplies shall be provided consistent with the\nmanaged care program described in section three hundred sixty-four-j of\nthis title.\n 2. "Standard coverage" shall mean payment of part or all of the cost\nof medically necessary medical, dental and remedial care, services and\nsupplies, as authorized in this title or the regulations of the\ndepartment, which are necessary to prevent, diagnose, correct or cure\nconditions in the person that cause acute suffering, endanger life,\nresult in illness or infirmity, interfere with such person's capacity\nfor normal activity, or threaten some significant handicap and which are\nfurnished an eligible person in accordance with this title and the\nregulations of the department. Such care, services and supplies shall\ninclude the following medical care, services and supplies, together with\nsuch medical care, services and supplies provided for in subdivisions\nthree, four and five of this section, and such medical care, services\nand supplies as are authorized in the regulations of the department:\n (a) services of qualified physicians, dentists, nurses, and private\nduty nursing services shall be further subject to the provisions of\nsection three hundred sixty-seven-o of this chapter, optometrists, and\nother related professional personnel;\n (b) care, treatment, maintenance and nursing services in hospitals,\nnursing homes that qualify as providers in the medicare program pursuant\nto title XVIII of the federal social security act, infirmaries or other\neligible medical institutions, and health-related care and services in\nintermediate care facilities, while operated in compliance with\napplicable provisions of this chapter, the public health law, the mental\nhygiene law and other laws, including any provision thereof requiring an\noperating certificate or license, or where such facilities are not\nconveniently accessible, in hospitals located without the state;\nprovided, however, that care, treatment, maintenance and nursing\nservices in nursing homes or in intermediate care facilities, including\nthose operated by the state department of mental hygiene or any other\nstate department or agency, shall, for persons who are receiving or who\nare eligible for medical assistance under provisions of subparagraph\nfour of paragraph (a) of subdivision one of section three hundred\nsixty-six of this chapter, be limited to such periods of time as may be\ndetermined necessary in accordance with a utilization review procedure\nestablished by the state commissioner of health providing for a review\nof medical necessity, in the case of skilled nursing care, every thirty\ndays for the first ninety days and every ninety days thereafter, and in\nthe case of care in an intermediate care facility, at least every six\nmonths, or more frequently if indicated at the time of the last review,\nconsistent with federal utilization review requirements; provided,\nfurther, that in-patient care, services and supplies in a general\nhospital shall not exceed such standards as the commissioner of health\nshall promulgate but in no case greater than twenty days per spell of\nillness during which all or any part of the cost of such care, services\nand supplies are claimed as an item of medical assistance, unless it\nshall have been determined in accordance with procedures and criteria\nestablished by such commissioner that a further identifiable period of\nin-patient general hospital care is required for particular patients to\npreserve life or to prevent substantial risks of continuing disability;\nprovided further, that in-patient care, services and supplies in a\ngeneral hospital shall, in the case of a person admitted to such a\nfacility on a Friday or Saturday, be deemed to include only those\nin-patient days beginning with and following the Sunday after such date\nof admission, unless such care, services and supplies are furnished for\nan actual medical emergency or pre-operative care for surgery as\nprovided in paragraph (d) of subdivision five of this section, or are\nfurnished because of the necessity of emergency or urgent surgery for\nthe alleviation of severe pain or the necessity for immediate diagnosis\nor treatment of conditions which threaten disability or death if not\npromptly diagnosed or treated; provided, however, in-patient days of a\ngeneral hospital admission beginning on a Friday or a Saturday shall be\nincluded commencing with the day of admission in a general hospital\nwhich the commissioner or his designee has found to be rendering and\nwhich continues to render full service on a seven day a week basis which\ndetermination shall be made after taking into consideration such factors\nas the routine availability of operating room services, diagnostic\nservices and consultants, laboratory services, radiological services,\npharmacy services, staff patterns consistent with full services and such\nother factors as the commissioner or his designee deems necessary and\nappropriate; provided, further, that in-patient care, services and\nsupplies in a general hospital shall not include care, services and\nsupplies furnished to patients for certain uncomplicated procedures\nwhich may be performed on an out-patient basis in accordance with\nregulations of the commissioner of health, unless the person or body\ndesignated by such commissioner determines that the medical condition of\nthe individual patient requires that the procedure be performed on an\nin-patient basis;\n (c) out-patient hospital or clinic services in facilities operated in\ncompliance with applicable provisions of this chapter, the public health\nlaw, the mental hygiene law and other laws, including any provisions\nthereof requiring an operating certificate or license, including\nfacilities authorized by the appropriate licensing authority to provide\nintegrated mental health services, and/or alcoholism and substance abuse\nservices, and/or physical health services, and/or services to persons\nwith developmental disabilities, when such services are provided at a\nsingle location or service site, or where such facilities are not\nconveniently accessible, in any hospital located within the state and\ncare and services in a day treatment program operated by the department\nof mental hygiene or by a voluntary agency under an agreement with such\ndepartment in that part of a public institution operated and approved\npursuant to law as an intermediate care facility for persons with\ndevelopmental disabilities; and provided, that the commissioners of\nhealth, mental health, alcoholism and substance abuse services and the\noffice for people with developmental disabilities may issue regulations,\nincluding emergency regulations promulgated prior to October first, two\nthousand fifteen that are required to facilitate the establishment of\nintegrated services clinics. Any such regulations promulgated under this\nparagraph shall be described in the annual report required pursuant to\nsection forty-five-c of part A of chapter fifty-six of the laws of two\nthousand thirteen;\n (d) home health services provided in a recipient's home and prescribed\nby a physician including services of a nurse provided on a part-time or\nintermittent basis rendered by an approved home health agency or if no\nsuch agency is available, by a registered nurse, licensed to practice in\nthis state, acting under the written orders of a physician and home\nhealth aide service by an individual or shared aide provided by an\napproved home health agency when such services are determined to be cost\neffective and appropriate to meet the recipient's needs for assistance\nsubject to the provisions of section three hundred sixty-seven-j and\nsection three hundred sixty-seven-o of this title;\n (e) (i) personal care services, including personal emergency response\nservices, shared aide and an individual aide, subject to the provisions\nof subparagraphs (ii), (iii), (iv), (v) and (vi) of this paragraph,\nfurnished to an individual who is not an inpatient or resident of a\nhospital, nursing facility, intermediate care facility for individuals\nwith intellectual disabilities, or institution for mental disease, as\ndetermined to meet the recipient's needs for assistance when cost\neffective and appropriate, and when prescribed by a qualified\nindependent physician selected or approved by the department of health,\nin accordance with the recipient's plan of treatment and provided by\nindividuals who are qualified to provide such services, who are\nsupervised by a registered nurse and who are not members of the\nrecipient's family, and furnished in the recipient's home or other\nlocation;\n (ii) the commissioner is authorized to adopt standards, pursuant to\nemergency regulation, for the provision, management and assessment of\nservices available under this paragraph for individuals whose need for\nsuch services exceeds a specified level to be determined by the\ncommissioner, and who with the provision of such services is capable of\nsafely remaining in the community in accordance with the standards set\nforth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider\nwhether an individual is capable of safely remaining in the community;\n (iii) the commissioner shall provide assistance to persons receiving\nservices under this paragraph who are transitioning to receiving care\nfrom a managed long term care plan certified pursuant to section\nforty-four hundred three-f of the public health law, consistent with\nsubdivision thirty-one of section three hundred sixty-four-j of this\ntitle;\n (iv) personal care services available pursuant to this paragraph shall\nnot exceed eight hours per week for individuals whose needs are limited\nto nutritional and environmental support functions;\n (v) subject to the availability of federal financial participation,\npersonal care services other than personal emergency response services\navailable pursuant to this paragraph shall be available only to\nindividuals assessed as needing at least limited assistance with\nphysical maneuvering with more than two activities of daily living, or\nfor individuals with a dementia or Alzheimer's diagnosis, assessed as\nneeding at least supervision with more than one activity of daily\nliving, as defined and determined by using an evidenced based validated\nassessment instrument approved by the commissioner and in accordance\nwith regulations of the department and any applicable state and federal\nlaws by an independent assessor. The provisions of this subparagraph\nshall only apply to individuals who receive an initial authorization for\nsuch services on or after October first, two thousand twenty;\n (vi) In establishing any standards for the provision, management or\nassessment of personal care services the state shall meet the standards\nset forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider\nwhether an individual is capable of safely remaining in the community;\n (f) preventive, prophylactic and other routine dental care, services\nand supplies;\n (g) sickroom supplies, eyeglasses, prosthetic appliances and dental\nprosthetic appliances furnished in accordance with the regulations of\nthe department; provided further that: (i) the commissioner of health is\nauthorized to implement a preferred diabetic supply program wherein the\ndepartment of health will receive enhanced rebates from preferred\nmanufacturers of glucometers and test strips, and may subject\nnon-preferred manufacturers' glucometers and test strips to prior\nauthorization under section two hundred seventy-three of the public\nhealth law; (ii) enteral formula therapy and nutritional supplements are\nlimited to coverage only for nasogastric, jejunostomy, or gastrostomy\ntube feeding, for treatment of an inborn metabolic disorder, or to\naddress growth and development problems in children, or, subject to\nstandards established by the commissioner, for persons with a diagnosis\nof HIV infection, AIDS or HIV-related illness or other diseases and\nconditions; (iii) prescription footwear and inserts are limited to\ncoverage only when used as an integral part of a lower limb orthotic\nappliance, as part of a diabetic treatment plan, or to address growth\nand development problems in children; (iv) compression and support\nstockings are limited to coverage only for pregnancy or treatment of\nvenous stasis ulcers; and (v) the commissioner of health is authorized\nto implement an incontinence supply utilization management program to\nreduce costs without limiting access through the existing provider\nnetwork, including but not limited to single or multiple source\ncontracts or, a preferred incontinence supply program wherein the\ndepartment of health will receive enhanced rebates from preferred\nmanufacturers of incontinence supplies, and may subject non-preferred\nmanufacturers' incontinence supplies to prior approval pursuant to\nregulations of the department, provided any necessary approvals under\nfederal law have been obtained to receive federal financial\nparticipation in the costs of incontinence supplies provided pursuant to\nthis subparagraph;\n (g-1) drugs provided on an in-patient basis, those drugs contained on\nthe list established by regulation of the commissioner of health\npursuant to subdivision four of this section, and those drugs which may\nnot be dispensed without a prescription as required by section\nsixty-eight hundred ten of the education law and which the commissioner\nof health shall determine to be reimbursable based upon such factors as\nthe availability of such drugs or alternatives at low cost if purchased\nby a medicaid recipient, or the essential nature of such drugs as\ndescribed by such commissioner in regulations, provided, however, that\nsuch drugs, exclusive of long-term maintenance drugs, shall be dispensed\nin quantities no greater than a thirty day supply or one hundred doses,\nwhichever is greater; provided further that the commissioner of health\nis authorized to require prior authorization for any refill of a\nprescription when more than a ten day supply of the previously dispensed\namount should remain were the product used as normally indicated, or in\nthe case of a controlled substance, as defined in section thirty-three\nhundred two of the public health law, when more than a seven day supply\nof the previously dispensed amount should remain were the product used\nas normally indicated; provided further that the commissioner of health\nis authorized to require prior authorization of prescriptions of opioid\nanalgesics in excess of four prescriptions in a thirty-day period in\naccordance with section two hundred seventy-three of the public health\nlaw; medical assistance shall not include any drug provided on other\nthan an in-patient basis for which a recipient is charged or a claim is\nmade in the case of a prescription drug, in excess of the maximum\nreimbursable amounts to be established by department regulations in\naccordance with standards established by the secretary of the United\nStates department of health and human services, or, in the case of a\ndrug not requiring a prescription, in excess of the maximum reimbursable\namount established by the commissioner of health pursuant to paragraph\n(a) of subdivision four of this section;\n (h) speech therapy, and when provided at the direction of a physician\nor nurse practitioner, physical therapy including related rehabilitative\nservices and occupational therapy;\n (i) laboratory and x-ray services; and\n (j) transportation when essential and appropriate to obtain medical\ncare, services and supplies otherwise available under the medical\nassistance program in accordance with this section, upon prior\nauthorization, except when required in order to obtain emergency care,\nand when not otherwise available to the recipient free of charge or\nthrough a transportation program implemented pursuant to section three\nhundred sixty-five-h of this title and approved by the commissioner of\nhealth for which federal financial participation is claimed as an\nadministrative cost;\n * (k) care and services furnished by an entity offering a\ncomprehensive health services plan, including an entity that has\nreceived a certificate of authority pursuant to sections forty-four\nhundred three, forty-four hundred three-a or forty-four hundred eight-a\nof the public health law (as added by chapter six hundred thirty-nine of\nthe laws of nineteen hundred ninety-six) or a health maintenance\norganization authorized under article forty-three of the insurance law,\nto eligible individuals residing in the geographic area served by such\nentity, when such services are furnished in accordance with an agreement\napproved by the department which meets the requirements of federal law\nand regulations.\n * NB Effective until December 31, 2029\n * (k) care and services furnished by an entity offering a\ncomprehensive health services plan to eligible individuals residing in\nthe geographic area served by such entity, when such services are\nfurnished in accordance with an agreement approved by the department\nwhich meets the requirements of federal law and regulations.\n * NB Effective December 31, 2029\n (l) care and services of podiatrists which care and services shall\nonly be provided upon referral by a physician, nurse practitioner or\ncertified nurse midwife in accordance with the program of early and\nperiodic screening and diagnosis established pursuant to subdivision\nthree of this section or to persons eligible for benefits under title\nXVIII of the federal social security act as qualified medicare\nbeneficiaries in accordance with federal requirements therefor and\nprivate duty nurses which care and services shall only be provided in\naccordance with regulations of the department of health; provided,\nhowever, that private duty nursing services shall not be restricted when\nsuch services are more appropriate and cost-effective than nursing\nservices provided by a home health agency pursuant to section three\nhundred sixty-seven-l;\n (m) hospice services provided by a hospice certified pursuant to\narticle forty of the public health law, to the extent that federal\nfinancial participation is available, and, notwithstanding federal\nfinancial participation and any provision of law or regulation to the\ncontrary, for hospice services provided pursuant to the hospice\nsupplemental financial assistance program for persons with special needs\nas provided for in article forty of the public health law.\n * (n) care and services of audiologists provided in accordance with\nregulations of the department of health.\n * NB There are two par (n)'s\n * (n) care, treatment, maintenance and rehabilitation services that\nwould otherwise qualify for reimbursement pursuant to this chapter to\npersons suffering from alcoholism in alcoholism facilities or chemical\ndependence, as such term is defined in section 1.03 of the mental\nhygiene law, in inpatient chemical dependence facilities, services, or\nprograms operated in compliance with applicable provisions of this\nchapter and the mental hygiene law, and certified by the office of\nalcoholism and substance abuse services, provided however that such\nservices shall be limited to such periods of time as may be determined\nnecessary in accordance with a utilization review procedure established\nby the commissioner of the office of alcoholism and substance abuse\nservices and provided further, that this paragraph shall not apply to\nany hospital or part of a hospital as defined in section two thousand\neight hundred one of the public health law.\n * NB There are two par (n)'s\n * (o) care and services furnished by a managed long term care plan or\napproved managed long term care demonstration pursuant to the provisions\nof section forty-four hundred three-f of the public health law to\neligible individuals residing in the geographic area served by such\nentity, when such services are furnished in accordance with an agreement\nwith the department of health and meet the applicable requirements of\nfederal law and regulation.\n * NB Repealed December 31, 2029\n (p) targeted case management services provided to children who\n (i) are eighteen years of age or under; and\n (ii) either\n (1) are physically disabled, according to the federal supplemental\nsecurity income program criteria, including but not limited to a person\nwho is multiply disabled; or\n (2) have a developmental disability, as defined in subdivision\ntwenty-two of section 1.03 of the mental hygiene law and demonstrate\ncomplex health needs as defined in paragraph c of subdivision seven of\nsection three hundred sixty-six of this title; or\n (3) have a mental illness, as defined in subdivision twenty of section\n1.03 of the mental hygiene law and demonstrate complex health or mental\nhealth care needs as defined in paragraph d of subdivision nine of\nsection three hundred sixty-six of this title; and\n (iii) require the level of care provided by an intermediate care\nfacility for the developmentally disabled, a nursing facility, a\nhospital or any other institution; and\n (iv) are capable of being cared for in the community if provided with\ncase management services and/or other services provided under this\ntitle; and\n (v) are capable of being cared for in the community at less cost than\nin the appropriate institutional setting; and\n (vi) are not receiving services under section three hundred\nsixty-seven-c of this title and for whom services provided under section\nthree hundred sixty-seven-a of this title are not available or\nsufficient to support the children's care in the community.\n (q) diabetes self-management training services for persons diagnosed\nwith diabetes when such services are ordered by a physician, registered\nphysician assistant, registered nurse practitioner, or licensed midwife\nand provided by a licensed, registered, or certified health care\nprofessional, as determined by the commissioner of health, who is\ncertified as a diabetes educator by the National Certification Board for\nDiabetes Educators, or a successor national certification board, or\nprovided by such a professional who is affiliated with a program\ncertified by the American Diabetes Association, the American Association\nof Diabetes Educators, the Indian Health Services, or any other national\naccreditation organization approved by the federal centers for medicare\nand medicaid services; provided, however, that the provisions of this\nparagraph shall not take effect unless all necessary approvals under\nfederal law and regulation have been obtained to receive federal\nfinancial participation in the costs of health care services provided\npursuant to this paragraph. Nothing in this paragraph shall be construed\nto modify any licensure, certification or scope of practice provision\nunder title eight of the education law.\n (r) asthma self-management training services for persons diagnosed\nwith asthma when such services are ordered by a physician, registered\nphysician's assistant, registered nurse practitioner, or licensed\nmidwife and provided by a licensed, registered, or certified health care\nprofessional, as determined by the commissioner of health, who is\ncertified as an asthma educator by the National Asthma Educator\nCertification Board, or a successor national certification board;\nprovided, however, that the provisions of this paragraph shall not take\neffect unless all necessary approvals under federal law and regulation\nhave been obtained to receive federal financial participation in the\ncosts of health care services provided pursuant to this paragraph.\nNothing in this paragraph shall be construed to modify any licensure,\ncertification or scope of practice provision under title eight of the\neducation law.\n (s) smoking cessation counseling services; provided, however, that the\nprovisions of this paragraph shall not take effect unless all necessary\napprovals under federal law and regulation have been obtained to receive\nfederal financial participation in the costs of such services.\n (t) cardiac rehabilitation services when ordered by the attending\nphysician and provided in a hospital-based or free-standing clinic in an\narea set aside for cardiac rehabilitation, or in a physician's office;\nprovided, however, that the provisions of this paragraph relating to\ncardiac rehabilitation services shall not take effect unless all\nnecessary approvals under federal law and regulation have been obtained\nto receive federal financial participation in the costs of such\nservices.\n (u) screening, brief intervention, and referral to treatment of\nindividuals at risk for substance abuse including referral to the\nappropriate level of intervention and treatment in a community setting;\nprovided, however, that the provisions of this paragraph relating to\nscreening, brief intervention, and referral to treatment services shall\nnot take effect unless all necessary approvals under federal law and\nregulation have been obtained to receive federal financial participation\nin such costs.\n (v) administration of vaccinations in a pharmacy by a certified\npharmacist within his or her scope of practice.\n (w) podiatry services for individuals with a diagnosis of diabetes\nmellitus; provided, however, that the provisions of this paragraph shall\nnot take effect unless all necessary approvals under federal law and\nregulation have been obtained to receive federal financial participation\nin the costs of health care services provided pursuant to this\nparagraph.\n (x)(i) lactation counseling services for pregnant and postpartum women\nwhen such services are ordered by a physician, physician assistant,\nnurse practitioner, or midwife and provided by a qualified lactation\ncare provider, as determined by the commissioner of health; provided,\nhowever, that the provisions of this paragraph shall not take effect\nunless all necessary approvals under federal law and regulation have\nbeen obtained to receive federal financial participation in the costs of\nhealth care services provided pursuant to this paragraph. Nothing in\nthis paragraph shall be construed to modify any licensure, certification\nor scope of practice provision under title eight of the education law.\n (ii) for the purposes of this paragraph, the following terms shall\nhave the following meanings:\n (1) "Qualified lactation care provider" shall mean a person who\npossesses current certification as a lactation care provider from a\ncertification program accredited by a nationally recognized accrediting\nagency.\n (2) "Nationally recognized accrediting agency" shall mean a nationally\nrecognized accrediting agency designated by the commissioner; provided\nthat the commissioner shall designate more than one agency.\n (y) harm reduction counseling and services to reduce or minimize the\nadverse health consequences associated with drug use, provided by a\nqualified drug treatment program or community-based organization, as\ndetermined by the commissioner of health; provided, however, that the\nprovisions of this paragraph shall not take effect unless all necessary\napprovals under federal law and regulation have been obtained to receive\nfederal financial participation in the costs of health care services\nprovided pursuant to this paragraph. Nothing in this paragraph shall be\nconstrued to modify any licensure, certification or scope of practice\nprovision under title eight of the education law.\n (z) hepatitis C wrap-around services to promote care coordination and\nintegration when ordered by a physician, registered physician assistant,\nregistered nurse practitioner, or licensed midwife, and provided by a\nqualified professional, as determined by the commissioner of health.\nSuch services may include client outreach, identification and\nrecruitment, hepatitis C education and counseling, coordination of care\nand adherence to treatment, assistance in obtaining appropriate\nentitlement services, peer support and other supportive services;\nprovided, however, that the provisions of this paragraph shall not take\neffect unless all necessary approvals under federal law and regulation\nhave been obtained to receive federal financial participation in the\ncosts of health care services provided pursuant to this paragraph.\nNothing in this paragraph shall be construed to modify any licensure,\ncertification or scope of practice provision under title eight of the\neducation law.\n ** (aa) care and services furnished by a developmental disability\nindividual support and care coordination organization (DISCO) that has\nreceived a certificate of authority pursuant to section forty-four\nhundred three-g of the public health law to eligible individuals\nresiding in the geographic area served by such entity, when such\nservices are furnished in accordance with an agreement approved by the\ndepartment of health which meets the requirements of federal law and\nregulations.\n * NB Repealed December 31, 2027\n (bb) Subject to the availability of federal financial participation,\nservices and supports authorized by the federal regulations governing\nthe Home and Community-Based Attendant Services and Supports State Plan\nOption (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).\n (cc) care and services for surgical first assistant services provided\nby a registered nurse first assistant provided that: (i) the registered\nnurse first assistant is certified in operating room nursing; (ii) the\nservices are within the scope of practice of a non-physician surgical\nfirst assistant; and (iii) the terms and conditions of the policy or\ncontract otherwise provide for the coverage of the services. Nothing in\nthis paragraph shall be construed to prevent the medical management or\nutilization review of the services; prevent a policy or contract from\nrequiring that services are to be provided through a network of\nparticipating providers who meet certain requirements for participation,\nincluding provider credentialing; or prohibit an insurer from providing\na global or capitated payment or electing to directly reimburse a\nnon-physician surgical first assistant for the services, as otherwise\npermitted by law.\n (dd) pasteurized donor human milk (PDHM), which may include fortifiers\nas medically indicated, for inpatient use, for which a licensed medical\npractitioner has issued an order for an infant who is medically or\nphysically unable to receive maternal breast milk or participate in\nbreast feeding or whose mother is medically or physically unable to\nproduce maternal breast milk at all or in sufficient quantities or\nparticipate in breast feeding despite optimal lactation support. Such\ninfant shall: (i) have a documented birth weight of less than one\nthousand five hundred grams; or (ii) have a congenital or acquired\ncondition that places the infant at a high risk for development of\nnecrotizing enterocolitis; or (iii) have a congenital or acquired\ncondition that may benefit from the use of donor breast milk as\ndetermined by the commissioner of health or his or her designee.\n (ee) Medical assistance shall include the coverage of a set of\nservices to ensure improved outcomes of women who are in the process of\novulation enhancing drugs, limited to the provision of such treatment,\noffice visits, hysterosalpingogram services, pelvic ultrasounds, and\nblood testing; services shall be limited to those necessary to monitor\nsuch treatment. In the event that ninety percent federal financial\nparticipation for such services is not available, the state share of\nappropriations related to these services shall be used for a grant\nprogram intended to accomplish the purpose of this section.\n (ff) evidence-based prevention and support services recognized by the\nfederal Centers for Disease Control (CDC), provided by a community-based\norganization, and designed to prevent individuals at risk of developing\ndiabetes from developing Type 2 diabetes.\n * (gg) addiction and mental health services and supports provided by\nfacilities licensed pursuant to article thirty-six of the mental hygiene\nlaw.\n * NB There are 3 par (gg)'s\n * (gg) all buprenorphine products, methadone or long acting injectable\nnaltrexone for detoxification or maintenance treatment of a substance\nuse disorder prescribed according to generally accepted national\nprofessional guidelines for the treatment of a substance use disorder.\nSuch medication assisted treatment shall not be subject to any prior\nauthorization mandate.\n * NB There are 3 par (gg)'s\n * (gg) care and services provided by mental health counselors and\nmarriage and family therapists licensed pursuant to article one hundred\nsixty-three of the education law acting within their scope of practice,\nwhere such services would otherwise be covered under this title. Nothing\nin this paragraph shall be construed to modify or expand the scope of\npractice of a mental health counselor or marriage and family therapist\nlicensed pursuant to article one hundred sixty-three of the education\nlaw.\n * NB There are 3 par (gg)'s\n (hh) The commissioner is authorized to establish one or more maternal\nhealth promotion pilot programs in one or more counties or regions of\nthe state, for the purpose of providing Medicaid reimbursement of the\nprenatal maternal childbirth education and preparation classes for\nenrollees, and transportation to and from such classes, for the purpose\nof improving maternal outcomes and reducing maternal-infant mortality.\nThe commissioner is authorized to establish fees for the reimbursement\nof such classes, subject to the approval of the state director of the\nbudget.\n (ii) Care and services provided by clinical social workers licensed\npursuant to article one hundred fifty-four of the education law acting\nwithin their scope of practice, where such services would otherwise be\ncovered under this title.\n * (jj) pre-natal and postpartum care and services for the purpose of\nimproving maternal health outcomes and reduction of maternal mortality\nwhen such services are recommended by a physician or other health care\npractitioner authorized under title eight of the education law, and\nprovided by qualified practitioners. Such services shall include but not\nbe limited to nutrition services provided by certified dietitians and\ncertified nutritionists; care coordination, case management, and peer\nsupport; patient navigation services; services by licensed clinical\nsocial workers; dyadic services; Bluetooth-enabled devices for remote\npatient monitoring; remote ultrasound scans; remote fetal non-stress\ntests and other services determined by the commissioner of health;\nprovided, however, that the provisions of this paragraph shall not take\neffect unless there is federal financial participation. Nothing in this\nparagraph shall be construed to modify any licensure, certification or\nscope of practice provision under title eight of the education law.\n * NB There are 2 par (jj)'s\n * (jj) applied behavior analysis, under article one hundred\nsixty-seven of the education law, provided by a person licensed,\ncertified, or otherwise authorized to provide applied behavior analysis\nunder that article.\n * NB There are 2 par (jj)'s\n * (kk) community health worker services which shall include, but not\nbe limited to, culturally appropriate patient education, health care\nnavigation, care coordination including the development of a care plan,\npatient advocacy, and support services for the management of chronic\nconditions for children under age twenty-one, and for adults with\nhealth-related social needs, when such services are recommended by a\nphysician or other health care practitioner authorized under title eight\nof the education law, and provided by qualified community health\nworkers, as determined by the commissioner of health; provided, however,\nthat the provisions of this paragraph shall not take effect unless all\nnecessary approvals under federal law and regulation have been obtained\nto receive federal financial participation in the costs of health care\nservices provided pursuant to this paragraph. Nothing in this paragraph\nshall be construed to modify any licensure, certification or scope of\npractice provision under title eight of the education law.\n * NB There are 2 par (kk)'s\n * (kk) care and services of nutritionists and dietitians certified\npursuant to article one hundred fifty-seven of the education law acting\nwithin their scope of practice.\n * NB There are 2 par (kk)'s\n (ll) Chronic Disease Self-Management Program for persons diagnosed\nwith arthritis when such services are ordered by a physician, registered\nphysician's assistant, registered nurse practitioner, or licensed\nmidwife and provided by qualified educators, as determined by the\ncommissioner of health, subject to federal financial participation.\nNothing in this paragraph shall be construed to modify any licensure,\ncertification or scope of practice provision under title eight of the\neducation law.\n (mm) (i) biomarker precision medical testing for the purposes of\ndiagnosis, treatment, or appropriate management of, or ongoing\nmonitoring to guide treatment decisions for, a recipient's disease or\ncondition when one or more of the following recognizes the efficacy and\nappropriateness of biomarker precision medical testing for diagnosis,\ntreatment, appropriate management, or guiding treatment decisions for a\nrecipient's disease or condition:\n (1) labeled indications for a test approved or cleared by the federal\nfood and drug administration or indicated tests for a food and drug\nadministration approved drug;\n (2) centers for medicare and medicaid services national coverage\ndeterminations or medicare administrative contractor local coverage\ndeterminations;\n (3) nationally recognized clinical practice guidelines; or\n (4) peer-reviewed literature and peer-reviewed scientific studies\npublished in or accepted for publication by medical journals that meet\nnationally recognized requirements for scientific manuscripts and that\nsubmit most of their published articles for review by experts who are\nnot part of the editorial staff.\n (ii) As used in this paragraph, the following terms shall have the\nfollowing meanings:\n (1) "Biomarker" means a characteristic that is measured as an\nindicator of normal biological processes, pathogenic processes, or\nresponses to an exposure or intervention, including therapeutic\ninterventions.\n (2) "Biomarker precision medical testing" means the analysis of a\npatient's tissue, blood, or other biospecimen for the presence of a\nbiomarker. Biomarker testing includes but is not limited to\nsingle-analyte tests and multi-plex panel tests performed at a\nparticipating in-network laboratory facility that is either CLIA\ncertified or CLIA waived by the federal food and drug administration.\n (3) "Nationally recognized clinical practice guidelines" means\nevidence-based clinical practice guidelines informed by a systematic\nreview of evidence and an assessment of the benefits, and risks of\nalternative care options intended to optimize patient care developed by\nindependent organizations or medical professional societies utilizing a\ntransparent methodology and reporting structure and with a conflict of\ninterest policy.\n (nn) (i) Medical assistance shall include the coverage of the\nfollowing services for individuals when a medical treatment may directly\nor indirectly cause iatrogenic infertility, which is an impairment of\nfertility resulting from surgery, radiation, chemotherapy, sickle cell\ntreatment, or other medical treatment affecting reproductive organs or\nprocesses:\n (1) standard fertility preservation services to prevent or treat\ninfertility, which shall include medically necessary collection,\nfreezing, preservation and storage of oocytes or sperm, and such other\nstandard services that are not experimental or investigational; together\nwith prescription drugs, which shall be limited to federal food and drug\nadministration approved medications and subject to medical assistance\nprogram coverage requirements. In vitro fertilization (IVF) shall not be\ncovered as a fertility preservation service; and\n (2) coverage of the costs of storage of oocytes or sperm shall be\nsubject to continued medical assistance program eligibility for\nindividuals when a medical treatment may directly or indirectly cause\niatrogenic infertility, and shall terminate upon any discontinuance of\nmedical assistance eligibility.\n (ii) In the event that federal financial participation for such\nfertility preservation services is not available, medical assistance\nshall not include coverage of these services.\n 3. Any inconsistent provisions of this section notwithstanding,\nmedical assistance shall include:\n (a) early and periodic screening and diagnosis of eligible persons\nunder six years of age and, in accordance with federal law and\nregulations, early and periodic screening and diagnosis of eligible\npersons under twenty-one years of age to ascertain physical and mental\ndisabilities; and\n (b) care and treatment of disabilities and conditions discovered by\nsuch screening and diagnosis including such care, services and supplies\nas the commissioner shall by regulation require to the extent necessary\nto conform to applicable federal law and regulations.\n (c) screening, diagnosis, care and treatment of disabilities and\nconditions discovered by such screening and diagnosis of eligible\npersons ages three to twenty-one, inclusive, including such care,\nservices and supplies as the commissioner shall by regulation require to\nthe extent necessary to conform to applicable federal law and\nregulations, provided that such screening, diagnosis, care and treatment\nshall include the provision of evaluations and related services rendered\npursuant to article eighty-nine of the education law and regulations of\nthe commissioner of education by persons qualified to provide such\nservices thereunder.\n (d) family planning services and twelve months of supplies for\neligible persons of childbearing age, including children under\ntwenty-one years of age who can be considered sexually active, who\ndesire such services and supplies, in accordance with the requirements\nof federal law and regulations and the regulations of the department.\nCoverage of prescription contraceptives shall include a twelve-month\nsupply that may be dispensed at one time or up to twelve times within\none year from the date of the prescription. No person shall be compelled\nor coerced to accept such services or supplies.\n 4. Any inconsistent provision of law notwithstanding, medical\nassistance shall not include, unless required by federal law and\nregulation as a condition of qualifying for federal financial\nparticipation in the medicaid program, the following items of care,\nservices and supplies:\n (a) drugs which may be dispensed without a prescription as required by\nsection sixty-eight hundred ten of the education law; provided, however,\nthat the state commissioner of health may by regulation specify certain\nof such drugs which may be reimbursed as an item of medical assistance\nin accordance with the price schedule established by such commissioner.\nNotwithstanding any other provision of law, modifications to the list of\ndrugs reimbursable under this paragraph may be filed as regulations by\nthe commissioner of health without prior notice and comment; provided,\nhowever, that the department will notify enrollees of any eliminations\nto the list of drugs reimbursable under this paragraph at least sixty\ndays prior to the removal of such drug. Such eliminations shall be\nreferred to the drug utilization review board established pursuant to\nsection three hundred sixty-nine-bb of this article for recommendation\nprior to elimination from the list;\n (a-1) (i) a brand name drug for which a multi-source therapeutically\nand generically equivalent drug, as determined by the federal food and\ndrug administration, is available, unless previously authorized by the\ndepartment of health. The commissioner of health is authorized to\nexempt, for good cause shown, any brand name drug from the restrictions\nimposed by this subparagraph;\n (ii) notwithstanding the provisions of subparagraph (i) of this\nparagraph, the commissioner is authorized to deny reimbursement for a\ngeneric equivalent, including a generic equivalent that is on the\npreferred drug list or the clinical drug review program, when the net\ncost of the brand name drug, after consideration of all rebates, is less\nthan the cost of the generic equivalent, unless prior authorization is\nobtained under section two hundred seventy-three of the public health\nlaw;\n (a-2) drugs which may not be dispensed without a prescription as\nrequired by section sixty-eight hundred ten of the education law, and\nwhich are non preferred drugs pursuant to section two hundred\nseventy-two of the public health law, or the clinical drug review\nprogram under section two hundred seventy-four of the public health law,\nunless prior authorization is granted or not required;\n (b) care and services of chiropractors and supplies related to the\npractice of chiropractic, except as provided for by the commissioner\npursuant to a pilot program approved under federal law and regulation;\n (c) care and services of an optometrist for using drugs in excess of\nthe maximum reimbursable amounts for optometric care and services\nestablished by the commissioner and approved by the director of the\nbudget;\n (d) any medical care, services or supplies furnished outside the\nstate, except, when prior authorized in accordance with department\nregulations or for care, services and supplies furnished: as a result of\na medical emergency; because the recipient's health would have been\nendangered if he or she had been required to travel to the state;\nbecause the care, services or supplies were more readily available in\nthe other state; or because it is the general practice for persons\nresiding in the locality wherein the recipient resides to use medical\nproviders in the other state;\n (e) drugs, procedures and supplies for the treatment of erectile\ndysfunction when provided to, or prescribed for use by, a person who is\nrequired to register as a sex offender pursuant to article six-C of the\ncorrection law, provided that any denial of coverage pursuant to this\nparagraph shall provide the patient with the means of obtaining\nadditional information concerning both the denial and the means of\nchallenging such denial; or\n (f) drugs for the treatment of sexual or erectile dysfunction, unless\nsuch drugs are used to treat a condition, other than sexual or erectile\ndysfunction, for which the drugs have been approved by the federal food\nand drug administration.\n (g) for eligible persons who are also beneficiaries under part D of\ntitle XVIII of the federal social security act, drugs which are\ndenominated as "covered part D drugs" under section 1860D-2(e) of such\nact.\n (h) opioids prescribed in violation of the treatment plan standards of\nsubdivision eight of section thirty-three hundred thirty-one of the\npublic health law or treatment plan standards as otherwise required by\nthe commissioner.\n 5. (a) Medical assistance shall include surgical benefits for\nemergency or urgent surgery for the alleviation of severe pain, for\nimmediate diagnosis or treatment of conditions which threaten disability\nor death if not promptly diagnosed or treated.\n (b) Medical assistance shall include surgical benefits for certain\nsurgical procedures which meet standards for surgical intervention, as\nestablished by the state commissioner of health on the basis of\nmedically indicated risk factors, and medically necessary surgery where\ndelay in surgical intervention would substantially increase the medical\nrisk associated with such surgical intervention.\n (c) Medical assistance shall include surgical benefits for other\ndeferrable surgical procedures specified by the state commissioner of\nhealth, based on the likelihood that deferral of such procedures for six\nmonths or more may jeopardize life or essential function, or cause\nsevere pain; provided, however, such deferrable surgical procedures\nshall be included in the case of in-patient surgery only when a second\nwritten opinion is obtained from a physician, or as otherwise\nprescribed, in accordance with regulations established by the state\ncommissioner of health, that such surgery should not be deferred.\n (d) Medical assistance shall include a maximum of one patient day of\npre-operative hospital care for surgery authorized by paragraphs (b) or\n(c) of this subdivision; provided, however, that with respect to\nspecific surgical procedures which the state commissioner of health has\nidentified as requiring more than one patient day of pre-operative care,\nmedical assistance shall include such longer maximum period of\npre-operative care as such commissioner has identified as necessary.\n (e) Medical assistance shall not include any in-patient surgical\nprocedures or any care, services or supplies related to such surgery\nother than those authorized by this subdivision.\n 6. Any inconsistent provision of law notwithstanding, medical\nassistance shall also include payment for medical care, services or\nsupplies furnished to eligible pregnant women pursuant to paragraph (o)\nof subdivision four of section three hundred sixty-six and subdivision\nsix of section three hundred sixty-four-i of this title, to the extent\nthat and for so long as federal financial participation is available\ntherefor; provided, however, that nothing in this section shall be\ndeemed to affect payment for such medical care, services or supplies if\nfederal financial participation is not available for such care, services\nand supplies solely by reason of the immigration status of the otherwise\neligible pregnant woman.\n 7. Medical assistance shall also include disproportionate share\npayments to general hospitals under the public health law.\n 8. When a non-governmental entity is authorized by the department\npursuant to contract or subcontract to make prior authorization or prior\napproval determinations that may be required for any item of medical\nassistance, a recipient may challenge any action taken or failure to act\nin connection with a prior authorization or prior approval determination\nas if such determination were made by a government entity, and shall be\nentitled to the same medical assistance benefits and standards and to\nthe same notice and procedural due process rights, including a right to\na fair hearing and aid continuing pursuant to section twenty-two of this\nchapter, as if the prior authorization or prior approval determination\nwere made by a government entity, without regard to expiration of the\nprior service authorization.\n 9. (a) Notwithstanding any inconsistent provision of law, any\nutilization controls on occupational therapy or physical therapy,\nincluding but not limited to, prior approval of services, utilization\nthresholds or other limitations imposed on such therapy services in\nrelation to a chronic condition in clinics certified under article\ntwenty-eight of the public health law or article sixteen of the mental\nhygiene law shall be: (i) developed by the department of health in\nconcurrence with the office for people with developmental disabilities;\nand (ii) in accord with nationally recognized professional standards. In\nthe event that nationally recognized professional standards do not\nexist, such thresholds shall be based upon the reasonably recognized\nprofessional standards of those with a specific expertise in treating\nindividuals served by clinics certified under article twenty-eight of\nthe public health law or article sixteen of the mental hygiene law.\n (b) Prior approval by the department of health of a physical therapy\nevaluation or an occupational therapy evaluation by a qualified\npractitioner practicing within the scope of such practitioner's\nlicensure shall not be required. The department may require prior\napproval for treatment as recommended by such an evaluation. In the\nevent that prior approval is required, and the department fails to make\na determination within eight days of presentation of a treatment request\nfor physical or occupational therapy services, the department shall\nautomatically approve four therapy visits. In the case of any denial of\na prior approval request for physical therapy or occupational therapy,\nthe department shall provide a reasonable opportunity for the qualified\npractitioner to provide his or her assessment of the beneficiary's\nphysical and functional status as documented in a treatment plan with\nreasonable and obtainable goals. If, upon completion of such four\ntherapy visits, the department has not yet rendered a determination on\nthe request for physical or occupational therapy services, the\ndepartment shall automatically approve an additional four therapy\nvisits. Subsequent automatic approvals shall be issued in the same\nmanner until such time as the department issues a determination, but in\nno event shall such approvals exceed the number of services or the\nperiod of time recommended by the evaluation. If the qualified\npractitioner provides documentation that is in accord with reasonably\nrecognized professional standards, the recommended treatment plan shall\nbe final, and the prior approval request shall be approved.\n 10. The department of health shall establish or procure the services\nof an independent assessor or assessors no later than October 1, 2022,\nin a manner and schedule as determined by the commissioner of health, to\ntake over from local departments of social services, Medicaid Managed\nCare providers, and Medicaid managed long term care plans performance of\nassessments and reassessments required for determining individuals'\nneeds for personal care services, including as provided through the\nconsumer directed personal assistance program, and other services or\nprograms available pursuant to the state's medical assistance program as\ndetermined by such commissioner for the purpose of improving efficiency,\nquality, and reliability in assessment and to determine individuals'\neligibility for Medicaid managed long term care plans. Notwithstanding\nthe provisions of section one hundred sixty-three of the state finance\nlaw, or sections one hundred forty-two and one hundred forty-three of\nthe economic development law, or any contrary provision of law,\ncontracts may be entered or the commissioner may amend and extend the\nterms of a contract awarded prior to the effective date and entered into\nto conduct enrollment broker and conflict-free evaluation services for\nthe Medicaid program, if such contract or contract amendment is for the\npurpose of procuring such assessment services from an independent\nassessor. Contracts entered into, amended, or extended pursuant to this\nsubdivision shall not remain in force beyond September 30, 2028.\n