S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   759

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 15, 2009
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Health

AN ACT to amend the public health law and the social  services  law,  in
  relation  to  rates  of  payment  for  continuous nursing services for
  medically fragile persons

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 3-a of section 3614 of the public health law,
as amended by section 9 of part C of chapter 109 of the laws of 2006, is
amended to read as follows:
  3-a. Medically fragile [children]  PERSONS.    Rates  of  payment  for
continuous  nursing  services  for  medically fragile [children] PERSONS
provided by a  certified  home  health  agency,  a  licensed  home  care
services  agency or a long term home health care program shall be estab-
lished 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 frag-
ile [children]  PERSONS  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]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02132-01-9
              

S. 759                              2

PERSONS.  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]
PERSONS  in  a non-institutional setting as compared to an institutional
setting. For the purposes  of  this  subdivision,  a  medically  fragile
[child]  PERSON shall mean a [child] PERSON who is at risk of hospitali-
zation or institutionalization, including but not limited to  [children]
PERSONS  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. The commis-
sioner shall promulgate regulations  to  implement  provisions  of  this
subdivision and may also direct the providers specified in this subdivi-
sion  to  provide  such  additional  information and in such form as the
commissioner shall determine is reasonably necessary  to  implement  the
provisions of this subdivision.
  S  2.  Subdivisions  1-a and 2 of section 367-r of the social services
law, subdivision 1-a as amended by section 10 of part C of  chapter  109
of  the  laws  of  2006, and subdivision 2 as amended by section 58-a of
part A of chapter 57 of the  laws  of  2006,  are  amended  to  read  as
follows:
  1-a.  Medically  fragile  [children] PERSONS. In addition, the commis-
sioner shall further increase rates for private  duty  nursing  services
that  are provided to medically fragile [children] PERSONS to ensure the
availability of such services to such [children] PERSONS.  In establish-
ing rates of payment under  this  subdivision,  the  commissioner  shall
consider the cost neutrality of such rates as related to the cost effec-
tiveness of caring for medically fragile [children] PERSONS in a non-in-
stitutional  setting  as compared to an institutional setting. Medically
fragile [children] PERSONS shall, for the purposes of this  subdivision,
have  the  same  meaning as in subdivision three-a of section thirty-six
hundred fourteen of the public health law.   Such  increased  rates  for
services rendered to such [children] PERSONS may take into consideration
the elements of cost, geographical differentials in the elements of cost
considered, economic factors in the area in which the private duty nurs-
ing  service is provided, costs associated with the provision of private
duty nursing services to medically fragile [children] PERSONS,  and  the
need for incentives to improve services and institute economies and such
increased  rates  shall be payable only to those private duty nurses who
can demonstrate, to the satisfaction of the department of health, satis-
factory training and experience to provide services to  such  [children]
PERSONS.   Such increased rates shall be determined based on application
of the case mix adjustment factor for AIDS home  care  program  services
rates as determined pursuant to applicable regulations of the department
of  health. The commissioner may promulgate regulations to implement the
provisions of this subdivision.
  2. Private duty nursing services  providers  which  have  their  rates
adjusted  pursuant  to  this section shall use such funds solely for the
purposes of recruitment and retention  of  private  duty  nurses  or  to
ensure  the delivery of private duty nursing services to medically frag-
ile [children] PERSONS and are prohibited from using such funds for  any
other  purpose.  Funds  provided  under this section are not intended to

S. 759                              3

supplant support provided by a local  government.  Each  such  provider,
with  the  exception of self-employed private duty nurses, shall submit,
at a time and in a manner  to  be  determined  by  the  commissioner  of
health,  a  written certification attesting that such funds will be used
solely for the purpose of recruitment  and  retention  of  private  duty
nurses  or  to  ensure  the delivery of private duty nursing services to
medically fragile [children] PERSONS.   The commissioner  of  health  is
authorized  to  audit  each  such provider to ensure compliance with the
written certification required by this subdivision and shall recoup  all
funds  determined  to have been used for purposes other than recruitment
and retention of private duty nurses or the  delivery  of  private  duty
nursing  services to medically fragile [children] PERSONS.  Such recoup-
ment shall be in addition to any other penalties provided by law.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have become a law, provided that:
  1.  the  amendments  to  subdivision 3-a of section 3614 of the public
health law made by section one of this act shall not affect the  expira-
tion  and  repeal  of  such  subdivision  and shall expire and be deemed
repealed therewith; and
  2. the amendments to section 367-r of the social services law made  by
section  two of this act shall not affect the expiration of such section
and shall be deemed to expire therewith.