§ 367-C — Payment for long term home health care programs

§ 367-c. Payment for long term home health care programs. 1. If a long\nterm home health care program as defined under article thirty-six of the\npublic health law is provided in the social services district for which\nhe has authority, the local social services official, before he\nauthorizes care in a nursing home or intermediate care facility for a\nperson eligible to receive services under this title, shall notify the\nperson in writing of the provisions of this section.\n 2. If a person eligible to receive services under the provisions of\nthis title who requires care, treatment, maintenance, nursing or other\nservices in a nursing home desires to remain and is deemed by his\nphysician able to remain in his own home or the home of a responsible\nrelative or other responsible adult if the necessary services are\nprovided, such person or his representative shall so inform the local\nsocial services official. If a long term home health care program as\ndefined under article thirty-six of the public health law is provided in\nthe social services district for which he has authority, such official\nshall authorize an assessment under the provisions of section thirty-six\nhundred sixteen of the public health law. If the results of the\nassessment indicate that the person can receive the appropriate level of\ncare at home, the official shall prepare for that person a plan for the\nprovision of services comparable to those that would be rendered in a\nnursing home. In developing such plan, the official shall consult with\nthose persons performing the assessment. The services shall be provided\nby a certified home health agency, hospital, or residential health care\nfacility authorized by the commissioner of health under article\nthirty-six of the public health law to provide a long term home health\ncare program. At the time of the initial assessment, and at the time of\neach subsequent assessment performed under the provisions of section\nthirty-six hundred sixteen of the public health law, or more often if\nthe person's needs require, the official shall establish a monthly\nbudget in accordance with which he shall authorize payment for the\nservices provided under such plan. Total monthly expenditures made under\nthis title for such person shall not exceed a maximum of seventy-five\nper cent, or such lesser percentage as may be determined by the\ncommissioner, of the average of the monthly rates payable under this\ntitle for nursing home services within the social services district for\nwhich the official has authority. However, if a continuing assessment of\nthe person's needs demonstrates that he requires increased services, the\nsocial services official may authorize the expenditure of any amount\naccrued under this section during the past twelve months as a result of\nthe expenditures for that person not exceeding such maximum. If an\nassessment of the person's needs demonstrates that he requires services\nthe payment for which would exceed such monthly maximum, but it can be\nreasonably anticipated that total expenditures for required services for\nsuch person will not exceed such maximum calculated over a one year\nperiod, the social services official may authorize payment for such\nservices.\n 3. If a person eligible to receive services under the provisions of\nthis title who requires health related care and services in an\nintermediate care facility desires to remain and is deemed by his\nphysician able to remain in his own home or the home of a responsible\nrelative or other responsible adult if the necessary services are\nprovided, such person or his representative shall so inform the local\nsocial services official. If a long term home health care program as\ndefined under article thirty-six of the public health law is provided in\nthe social services district for which he has authority, such official\nshall authorize an assessment under the provisions of section thirty-six\nhundred sixteen of the public health law. If the results of the\nassessment indicate that the person can receive the appropriate level of\ncare at home, the official shall prepare for that person a plan for the\nprovision of services comparable to those that would be rendered in an\nintermediate care facility. In developing such plan, the official shall\nconsult with those persons performing the assessment. The services shall\nbe provided by a certified home health agency, hospital, or residential\nhealth care facility authorized by the commissioner of health under\narticle thirty-six of the public health law to provide a long term home\nhealth care program. At the time of the initial assessment and at the\ntime of each subsequent assessment performed under the provisions of\nsection thirty-six hundred sixteen of the public health law, or more\noften if the person's needs require, the official shall establish a\nmonthly budget in accordance with which he shall authorize payment for\nthe services provided under that plan. Total monthly expenditures made\nunder this title for such person shall not exceed a maximum of\nseventy-five per cent, or such lesser percentage as may be determined by\nthe commissioner, of the average of the monthly rates paid under this\ntitle for the provision of health related care and services in\nintermediate care facilities within the social services district for\nwhich the official has authority. However, if a continuing assessment of\nthe person's needs demonstrates that he requires increased services, the\nsocial services official may authorize the expenditure of any amount\naccrued under this section during the past twelve months as a result of\nthe expenditures for that person not exceeding such maximum. If an\nassessment of the person's needs demonstrates that he requires services\nthe payment for which would exceed such monthly maximum, but it can be\nreasonably anticipated that total expenditures for required services for\nsuch person will not exceed such maximum calculated over a one year\nperiod, the social services official may authorize payment for such\nservices.\n 3-a. (a) Notwithstanding any inconsistent provision of this section,\nthe commissioner is authorized and directed to establish a demonstration\nprogram for the purpose of determining the impact of raising the\nlimitation on expenditures for the delivery of long term home health\ncare services to persons with special needs as defined in this\nsubdivision. Pursuant to such program, the commissioner shall permit\nlocal social services officials to authorize, at their discretion, and\nonly after a determination that the maximum expenditure available\npursuant to subdivisions two and three of this section is not sufficient\nto provide or continue to provide long term home health care services to\npersons with special needs, maximum monthly expenditures for services\nunder this title to such persons, not to exceed one hundred percent of\nthe average of the monthly rates payable under this title for services\nin a nursing home or intermediate care facility within the social\nservices district for which the social services official has authority.\nHowever, if a continuing assessment of a person with special needs\ndemonstrates that he requires increased services, the social services\nofficial may authorize the expenditure of any amount accrued under this\nsection during the past twelve months as a result of the expenditures\nfor that person not having exceeded such maximum. If an assessment of a\nperson with special needs demonstrates that he requires increased\nservices the payment for which would exceed such monthly maximum, but it\ncan be reasonably anticipated that total expenditures for required\nservices for such person will not exceed such maximum calculated over a\none year period, the social services official may authorize payment for\nsuch services.\n (b) As used in this subdivision, the term "person with special needs"\nshall mean a person for whom a plan of care has been developed pursuant\nto subdivision two or three of this section who (1) needs care including\nbut not limited to respiratory therapy, tube feeding, decubitus care or\ninsulin therapy which cannot be appropriately provided by a personal\ncare aide as defined in regulations issued by the commissioner, or (2)\nhas one or more of the following conditions: mental disability as\ndefined in section 1.03 of the mental hygiene law, acquired immune\ndeficiency syndrome, or dementias, including Alzheimer's disease.\n (c) The number of persons with special needs for whom a local social\nservices official may authorize payment for services pursuant to\nparagraph (a) of this subdivision shall be limited to twenty-five\npercent of the total number of persons, all long term home health care\nprograms, within a social services district are authorized to serve;\nprovided, however, in any district containing a city having a population\nof one million or more, such limit shall be fifteen percent.\n (d) In the event that a district reaches the limitation specified in\nparagraph (c) of this subdivision, the local social services official\nmay, upon the approval of the commissioner, authorize payment for\nservices, pursuant to paragraph (a) of this subdivision, for additional\npersons with special needs.\n 4. Notwithstanding any inconsistent provision of this section, if two\nmembers of this same household, eligible to receive services under this\ntitle, require care and services in either a nursing home or an\nintermediate care facility, and assessments conducted pursuant to the\nprovisions of this section indicate that such persons can receive the\nappropriate level of care at home, then such care may be provided at\nhome where total monthly expenditures made under this title for such\npersons shall not exceed a maximum of seventy-five percent, or such\nlesser percentage as may be determined by the commissioner, of the\nmonthly rates which would be payable under this title for both members\nof the household for nursing home and/or intermediate care facility\nservices within the social services district. If assessments of such\npersons' needs demonstrate that they require services the payment for\nwhich would exceed such monthly maximum, but it can be reasonably\nanticipated that total expenditures for required services for such\npersons will not exceed the maximum calculated over a one year period, a\nsocial services official may authorize payment for such services.\n 5. If a person eligible to receive services under the provisions of\nthis title who is medically eligible for care, treatment, maintenance,\nnursing or other services in a nursing home or is medically eligible for\nhealth related care and services in an intermediate care facility\ndesires to and is deemed by his or her physician able to remain in an\nadult care facility, other than a shelter for adults, which is able and\nwilling to retain such person if the necessary services are provided,\nsuch person or his or her representatives shall so inform the local\nsocial services official. If a long term home health care program is\nprovided in a social services district, an official of such district\nshall authorize an assessment under the provisions of section three\nthousand six hundred sixteen of the public health law. If the results of\nthe assessment indicate that the person can receive the appropriate\nlevel of care at such location, and meets the appropriate standards for\ncontinued stay for such facility as are established by law and\nregulation, such official shall prepare for that person a plan for the\nprovision of services. In developing such plan, the official shall\nconsult with those persons performing the assessment and with the\noperator of the adult care facility. The services shall be provided by a\nlong term home health care program authorized pursuant to article\nthirty-six of the public health law, provided, however that\nnotwithstanding the provisions of section three thousand six hundred\nsixteen of such law, services shall not be provided prior to the\ncompletion of the assessment. At the time of the initial assessment and\nat the time of each subsequent assessment performed under the provisions\nof section three thousand six hundred sixteen of the public health law,\nor more often if the person's needs require, the official shall\nestablish a monthly budget in accordance with which he shall authorize\npayment for the services provided under that plan, provided, however\nthat no services shall be authorized in the plan which the operator of\nthe facility is required by law and regulation to provide. The long term\nhome health care program providing services authorized in such plan\nshall be solely responsible for managing and providing or arranging for\nsuch authorized services. The operator of the adult care facility shall\nbe solely responsible for managing and providing those services which\nthe facility is required by law or regulation to provide. However, the\ntwo entities shall collaborate to assure coordination. Total monthly\nexpenditures made under this title for such person shall not exceed a\nmaximum of fifty percent, or such lesser percentage as may be determined\nby the commissioner, of the average of the monthly rates paid under this\ntitle for the provision of nursing home services or health related care\nand services in intermediate care facilities, whichever is appropriate,\nwithin the social services district for which the official has\nauthority. However, if a continuing assessment of the person's needs\ndemonstrates that he or she requires increased services, the social\nservices official may authorize the expenditure of any amount accrued\nunder this section during the past twelve months as a result of the\nexpenditures for that person not exceeding such maximum. If an\nassessment of the person's needs demonstrates that he or she requires\nservices the payment for which would exceed such monthly maximum, but it\ncan be reasonably anticipated that total expenditures for required\nservices for such person will not exceed such maximum calculated over a\none year period, the social services official may authorize payment for\nsuch services. The provisions of this subdivision shall not be deemed to\nalter standards for admission to an adult care facility nor shall the\nadmission of a person into such facility be contingent on such person's\nenrollment in a long term home health care program.\n 6. Notwithstanding any inconsistent provision of law but subject to\nexpenditure limitations of this section, the commissioner, subject to\nthe approval of the state director of the budget, may authorize the\nutilization of medical assistance funds to pay for services provided by\nspecified long term home health care programs in addition to those\nservices included in the medical assistance program under section three\nhundred sixty-five-a of this chapter, so long as federal financial\nparticipation is available for such services. Expenditures made under\nthis subdivision shall be deemed payments for medical assistance for\nneedy persons and shall be subject to reimbursement by the state in\naccordance with the provisions of section three hundred sixty-eight-a of\nthis chapter.\n 7. No social services district shall make payments pursuant to title\nXIX of the federal Social Security Act for benefits available under\ntitle XVIII of such act without documentation that title XVIII claims\nhave been filed and denied.\n 8. No social services district shall make payment for a person\nreceiving a long term home health care program while payments are being\nmade for that person for inpatient care in a residential health care\nfacility or hospital.\n 9. The commissioner, together with the commissioner of health, shall\nsubmit a report to the governor, president pro tem of the senate and\nspeaker of the assembly by the first day of February, nineteen hundred\neighty, on the implementation of this section. Such report shall include\na statement of the scope and status of long term home health care\nprograms, the extent to which such programs have affected\ninstitutionalization, the costs associated with such programs, any\nrecommendations for legislative action, and such other matters as may be\npertinent.\n 10. This section shall be effective if, and as long as, federal aid is\navailable therefor.\n