NY State Senate Bill 2017-S9180

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Oct 19, 2018	referred to rules

2017-S9180 (ACTIVE) - Details

See Assembly Version of this Bill:: A11382
Current Committee:: Senate Rules
Law Section:: Public Health Law
Laws Affected:: Amd §§4403-f, 3605 & 3605-b, Pub Health L; amd part B §9-e, Chap 57 of 2018
Versions Introduced in Other Legislative Sessions:: 2019-2020: S2790, A3913
2021-2022: S5839, A2588
2023-2024: S4406, A5426

2017-S9180 (ACTIVE) - Summary

Relates to a moratorium on new licensed home care service agency approvals.

2017-S9180 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S9180

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the public health law, in relation to a moratorium on
new licensed home care service agency approvals; and to amend chapter 57
of the laws of 2018 amending the public health law and other laws relat-
ing to limitations on licensed home care service agency contracts and
registration of licensed home care services agencies, in relation to the
moratorium on the processing and approval of applications seeking licen-
sure of a licensed home care services agency

 
PURPOSE:

To enact revisions in New York's Laws governing the operation of
Licensed Home Care Services Agencies (LHCSAs) that have the effect of
repealing and modifying substantial changes-that could forever change,
irreparable harm and potentially extinguish mane longstanding small
businesses that were included in the 2018 Health and Mental Hygiene
Article VII Budget Bill that was enacted into law as part of Chapter 57
of the Laws of 2018.

 
SUMMARY OF PROVISIONS:

Section 1-Provides compelling legislative intent that lays out the case
for why this legislation is necessary, chronicling the essential nature
of LHCSAs, demonstrating how important they are to our families, our
health care system and our local economies. Changes enacted as part of
the FY 2018-19 Budget are discussed and the conclusion is reached that
said changes threaten the very social and economic existence of our
locally-centered LHCSAs that generations of New Yorkers have come to
count on, letting them into their homes-to demonstrate care and compas-
sion-in times of trial and perseverance.  The case for various amend-
ments and modifications that follow is laid out in detail.

Section 2-Provides important procedural and substantive due process
protections to LHCSAs by requiring that the Department of Health proac-
tively conduct at least seven public hearings-including at least one in
New York City, Long Island, Westchester County, The Capital Region,
Central New York and Western New York-to garner feedback and comments
before implementing any proposed methodologies that would place a limit
on the number of LHCSAs with which Managed Long Term Care Plans (MLTCP)
can contract.

In addition, methodologies scheduled to go into effect on October 1st,
2018 that would place a limit on the number of LHCSAs with which Managed
Long Term Care Plans (MLTCP) can contract are deferred until October
1st, 2020. Additional methodologies scheduled to go into effect on Octo-
ber 1st, 2019 are deferred until October 1st, 2021.

Section 3-Strikes out recently-added hurdles to licensure including
"public need," "standing in the community" and "financial resources" for
LHCSAs to meet to receive approval. The pre-Chapter 57 of 2018 licensing
criteria are reestablished.

Section 4-Modifies changes enacted as part of Chapter 57 of 2018 to give
LHCSAs an additional year to register with the Department (from January
1st, 2019 to January 1st, 2020); reduces and relaxes language requiring
onerous compounding fees upon LHCSAs who do not register in a timely
manner and scales back the power of the Department of Health to pursue
license revocation for the sole act of not registering in a timely
manner.

Section 5-Strikes out the LHCSA moratorium enacted as part of Chapter 57
of 2018, which went into effect on April 1st-and instead schedules it
for an effective date of April 1st, 2020 and a sunset date of March 31,
2022.

Section 6-Indicates that the act shall take effect immediately.

 
JUSTIFICATION:

There are currently over 1,400 LHCSAs authorized to provide hourly nurs-
ing care, assistance with activities of daily living and other health
and social services to New York's low-income elderly and disabled popu-
lations. In the past five years alone, home health employers have added
72,600 jobs in New York. This year, for the first time ever, the number
of people employed in the home health sector in New York City (167,000)
has surpassed the number employed by private hospitals in New York City
(166,300).

The FY 2018-19 Enacted Budget contained language in the Health and
Mental Hygiene bill (S.7507-C) that was agreed to by the Governor,
Senate Republicans and Assembly Democrats that put new restrictions and
additional hurdles on Licensed Home Care Services Agencies (LHCSAs). The
rationale behind these changes-from the perspective of the Department of
Health-was to move from a fragmented, decentralized model of care to a
more coordinated and centrally-planned one. In addition, it has been
reported that DOH believes that fewer providers will reduce waste, inef-
ficiency and the opportunity for fraud.  The major downside of these
changes is that they will-by design-affect small, local operations forc-
ing them to merge and/or change their business model, and at worst,
potentially lose their ability to operate. Such changes seem to ignore
the basic current business model of local LHCSA operations who provide
targeted local care in the homes of individuals; in many ways this busi-
ness model cannot be scaled up and retain the quality of services
afforded by local groups who are trusted in the community.

The three major changes enacted as part of the FY 2018-19 Budget were:

*The DOH imposes a two-year moratorium on new LHCSA approvals (Expires
March 30th, 2020).

*The DOH will place a limit on the number of LHCSAs with which Managed
Long Term Care Plans (MLTCP) can contract (Scheduled to be implemented
on October 1st, 2018).

*The DOH will add a requirement that in the future-post the 2-year mora-
torium LHCSA applicants will need to demonstrate "public need," "stand-
ing in the community" and "financial resources" to receive approval.
This would go into effect on or about March 30th, 2020.

All three changes are of grave concern to the hardworking LHCSAs that
are one of the major backbones of our small business sector. The morato-
rium means that any projects in the pipeline are effectively scuttled
for at least two years. The contracting limit, which is complex and
determined by a formula, could essentially mean that smaller LHCSAs are
no longer able to collaborate with Managed Long Term Care Plans. It has
been reported that DOH believes the following outcomes are possible:
consolidation of the LHCSA marketplace, either through large providers
formally acquiring smaller providers, or the gradual disappearance of
smaller providers altogether as they struggle to maintain market share.
The post-moratorium landscape in March 2020 "public need," "standing in
the community" and "financial resources" for the purposes of becoming
licensed to do business. This will add additional hurdles to small busi-
nesses that already spend so much time on regulation and compliance; in
the long term, it could eventually mean that small operators no longer
have the opportunity to provide services to the community. With hind-
sight and reflection upon what truly allows LHCSAs to deliver quality
care in the community, it has become very clear that letting these busi-
nesses fail under a system intentionally stacked against them is not a
fair, sound, rational or viable option.

Conclusively, this legislation seeks to keep certain essential elements
of the changes enacted by Chapter 57 of 2018 but adds more realistic
timetables for implementation while preserving the due process rights of
LHCSAs to be heard by the DOH concerning changes that may very well
affect their ability to operate and serve our communities.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None of significance noted.

 
EFFECTIVE DATE:
This law will take effect immediately.

2017-S9180 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
     S. 9180                                                 A. 11382
 
                       S E N A T E - A S S E M B L Y
 
                             October 19, 2018
                                ___________
 
 IN  SENATE -- Introduced by Sen. COMRIE -- read twice and ordered print-
   ed, and when printed to be committed to the Committee on Rules
 
 IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M.  of
   A. Hyndman) -- read once and referred to the Committee on Health
 
 AN  ACT  to  amend the public health law, in relation to a moratorium on
   new licensed home care service agency approvals; and to amend  chapter
   57  of  the laws of 2018 amending the public health law and other laws
   relating to limitations on licensed home care service agency contracts
   and registration of licensed home care services agencies, in  relation
   to the moratorium on the processing and approval of applications seek-
   ing licensure of a licensed home care services agency
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Legislative  intent.  The  legislature  hereby  finds  and
 declares  that  local small business are the very lifeblood and economic
 building blocks of the empire state. These businesses are  important  to
 every  community  throughout  our  state:  they hire locally, they spend
 resources locally, they pay state and local taxes and they offer  essen-
 tial  services  that  improve  the quality of life of individuals at the
 local level. Without such local small businesses, our economy would  not
 be  able  to  function  in  a manner that benefits all our residents and
 reaches them in a very direct and personal  way.  A  quintessential  and
 leading example of the type of local, small business that provides life-
 changing services can be found in the form of licensed home care service
 agencies  (LHCSAs).  LHCSAs  are  a vital and essential component of our
 health care delivery system, interacting with patients on a daily basis,
 attending to their needs and standing on the very frontline  of  quality
 care. Furthermore, LHCSAs are very often small, local businesses started
 by  compassionate social entrepreneurs who saw a need in their community
 and who have succeeded because of the very personal,  trusting,  compas-
 sionate  and nurturing relationship they have with the individuals under
 their care.  Additionally, the range of  services  provided  by  LHCSAs,
 including  language  and cultural competency, is unique and valuable, to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16579-02-8

 S. 9180                             2                           A. 11382
 
 them, to the employees they hire and to our overall community and health
 care system. The need for home care services for our  senior  population
 is rising exponentially and local, small business LHCSAs have rationally
 grown  to meet this demand and provide skillful care for our loved ones.
 Moreover, LHCSAs often save the state money because they allow  individ-
 uals  to  remain  at  home, instead of moving to institutionalized care.
 However, puzzlingly, the department of health constantly  seems  focused
 on  threatening  LHCSAs ability to operate, as exemplified by a two year
 moratorium enacted in 2008 and  a  series  of  potentially  catastrophic
 provisions enacted as part of the 2018-19 New York state budget, includ-
 ing:   another   two   year  moratorium  on  new  LHCSA  approvals;  the
 construction of a limit on the number of LHCSAs with which managed  long
 term  care  plans  (MLTCP) can contract; and authorization of a forward-
 looking requirement that could be enacted in the future,  post  the  two
 year  moratorium, that will mandate that LHCSA applicants need to demon-
 strate "public need" and "financial feasibility" to receive approval. In
 sum, these changes have simply gone too far in terms  of  overregulating
 local small businesses that are trying to provide quality of life health
 services  to  some  of  our  most needy and vulnerable citizens. The new
 changes threaten the very social and economic existence of  the  locally
 centered  LHCSAs  that generations of New Yorkers have come to count on,
 letting them into their homes in times of  trial  and  perseverance.  In
 hindsight,  the recently enacted provisions have proven to be overreach-
 ing, unwise and onerous, and consequently must be modified.
   § 2. Subparagraphs (i), (ii), (iii), (v) and (x) of paragraph  (j)  of
 subdivision  7  of  section 4403-f of the public health law, as added by
 section 9-a of part B of chapter 57 of the laws of 2018, are amended  to
 read as follows:
   (i)  The  commissioner may establish methodologies to limit the number
 of licensed home care services agencies  licensed  pursuant  to  article
 thirty-six  of  [the  public health law] THIS CHAPTER with which managed
 long term care plans may enter into contracts, provided that such  limi-
 tations  are  consistent with the specifications set forth in this para-
 graph. HOWEVER, BEFORE IMPLEMENTING ANY SUCH METHODOLOGICAL LIMITATIONS,
 THE DEPARTMENT MUST HOLD A MINIMUM OF SIX PUBLIC HEARINGS  INCLUDING  AT
 LEAST  ONE  IN EACH OF THE FOLLOWING REGIONS: THE CITY OF NEW YORK, LONG
 ISLAND, WESTCHESTER COUNTY, THE CAPITAL REGION,  CENTRAL  NEW  YORK  AND
 WESTERN NEW YORK TO HEAR FROM INTERESTED PARTIES THAT MAY BE AFFECTED BY
 ANY  PROPOSED  METHODOLOGIES. THE DEPARTMENT SHALL WIDELY PUBLICIZE SUCH
 HEARINGS ONCE SCHEDULED, AND MUST SEND NOTICE OF SUCH  HEARINGS  TO  ALL
 LICENSED  HOME  CARE  SERVICES AGENCIES AT LEAST TWO WEEKS IN ADVANCE OF
 EACH HEARING. THE HEARINGS MUST BE OFFICIALLY  TRANSCRIBED  AND  WRITTEN
 TESTIMONY AND COMMENTS MUST BE PERMITTED BOTH IN PERSON AND VIA MAIL AND
 ELECTRONIC  MEANS.  THE  DEPARTMENT SHALL FORMALLY TAKE INTO ACCOUNT THE
 PUBLIC HEARING COMMENTS AND WRITTEN TESTIMONY  BEFORE  PROMULGATING  ANY
 FINAL METHODOLOGIES.
   (ii)  Managed  long  term care plans operating in the city of New York
 and/or the counties of Nassau, Suffolk, and Westchester may  enter  into
 contracts  with licensed home care services agencies in such region in a
 maximum number calculated based upon the following methodology:
   (A) As of October first, two thousand [eighteen] TWENTY, one  contract
 per seventy-five members enrolled in the plan within such region; and
   (B)  As  of  October  first,  two  thousand [nineteen] TWENTY-ONE, one
 contract per one hundred  members  enrolled  in  the  plan  within  such
 region.

 S. 9180                             3                           A. 11382
 
   (iii)  Managed  long  term care plans operating in counties other than
 those in the city of New York and the counties of Nassau,  Suffolk,  and
 Westchester  may  enter  into contracts with licensed home care services
 agencies in such region in a maximum number calculated  based  upon  the
 following methodology:
   (A)  As of October first, two thousand [eighteen] TWENTY, one contract
 per forty-five members enrolled in the plan within such region.
   (B) As of October  first,  two  thousand  [nineteen]  TWENTY-ONE,  one
 contract per sixty members enrolled in the plan within such region.
   (v) When calculating the number of additional contracts that a managed
 long term care plan may enter using the methodologies established pursu-
 ant to this paragraph, any fractional result shall be rounded [down] UP.
   (x)  This  subparagraph  applies where implementation of the limits on
 contracts with licensed home care service agencies of this paragraph (i)
 would otherwise require an enrollee's care to be  transferred  from  the
 enrollee's current licensed home care service agency to another licensed
 care service agency, and (ii) the enrollee (or the enrollee's authorized
 representative) wants the enrollee to continue to be cared for by one or
 more  employees  of  the  current licensed home care service agency, and
 that continuation would otherwise be  provided.  In  such  a  case:  the
 enrollee's  managed long term care plan may contract with the enrollee's
 current licensed home care service agency for the purpose of  continuing
 the  enrollee's  care  by  such  employee or employees, and the contract
 shall not count towards the limits on contracts under this paragraph for
 a period of [three months] ONE YEAR.
   § 3. Subdivisions 4 and 6 of section 3605 of the public health law, as
 amended by section 9-b of part B of chapter 57 of the laws of 2018,  are
 amended to read as follows:
   4.  The public health and health planning council shall not approve an
 application for licensure unless it is satisfied as to[: (a) the  public
 need  for  the existence of the licensed home health care service agency
 at the time and place and under the  circumstances  proposed;  (b)]  the
 character,  competence  and standing in the community of the applicant's
 incorporators, directors, sponsors, stockholders or operators[; (c)  the
 financial  resources  of  the proposed licensed home health care service
 agency and its sources of financial revenues; and (d) such other matters
 as it shall deem pertinent].
   6. Neither PUBLIC NEED, tax status nor profit-making status  shall  be
 criteria for licensure.
   §  4. Section 3605-b of the public health law, as added by section 9-d
 of part B of chapter 57 of the laws of  2018,  is  amended  to  read  as
 follows:
   §  3605-b.  Registration  of  licensed home care services agencies. 1.
 [(a)] Notwithstanding any provision of law to the contrary, no  licensed
 home  care  services agency (LHCSA) licensed pursuant to section thirty-
 six hundred five of this article  shall  be  operated,  provide  nursing
 services,  home  health  aide  services,  or  personal care services, or
 receive reimbursement from any source for the provision of such services
 during any period of time on or after January first, two thousand [nine-
 teen] TWENTY, unless it has registered with the commissioner in a manner
 prescribed by the department.
   [(b)] 2. A LHCSA that fails to submit a complete and accurate  set  of
 all  required  registration materials by the deadline established by the
 commissioner [shall] MAY be required to pay a fee of [five] ONE  hundred
 dollars  for  each  FULL  month  [or  part thereof] that the LHCSA is in
 default. A LHCSA that failed to register in the prior year by the  dead-

 S. 9180                             4                           A. 11382
 
 line  of  the  current  year  shall not be permitted to register for the
 upcoming registration period unless it submits any unpaid late fees.
   [(c)] 3. The department shall post on its public website a list of all
 LHCSAs,  which  shall  indicate  the current registration status of each
 LHCSA.
   [(d)] 4. The department shall  institute  proceedings  to  revoke  the
 license  of any LHCSA that fails to register for [two] THREE CONSECUTIVE
 annual registration periods[, whether or not such  periods  are  consec-
 utive.  The department shall have the discretion to pursue revocation of
 the license of a LHCSA on grounds that it evidences a  pattern  of  late
 registration over the course of multiple years].
   §  5. Section 9-e of part B of chapter 57 of the laws of 2018 amending
 the public health law and other laws relating to limitations on licensed
 home care service agency contracts and  registration  of  licensed  home
 care services agencies is amended to read as follows:
   §  9-e.  Effective  April  1,  [2018] 2020, the commissioner of health
 shall place a moratorium on the processing and approval of  applications
 seeking  licensure  of  a licensed home care services agency pursuant to
 section 3605 of the public health law that have not received  establish-
 ment  approval or contingent establishment approval by the public health
 and health planning council, except  for:  (a)  an  application  seeking
 licensure of a licensed home care services agency that is submitted with
 an  application  for  approval  as an assisted living program authorized
 pursuant to section 461-l of the social services law; (b) an application
 seeking approval to transfer ownership for  an  existing  licensed  home
 care  services agency that has been licensed and operating for a minimum
 of five years for the purpose of consolidating ownership of two or  more
 licensed  home  care  services  agencies; and (c) an application seeking
 licensure of a home care services  agency  where  the  applicant  demon-
 strates   to  the  satisfaction  of  the  commissioner  of  health  that
 submission of the application to the public health and  health  planning
 council  for  consideration  would  be  appropriate  on grounds that the
 application addresses a serious concern such as a lack of access to home
 care services in the geographic area or a lack of adequate and appropri-
 ate care, language and cultural competence, or special  needs  services.
 Such  moratorium  shall expire on March 31, [2020] 2022. In implementing
 the provisions of this section, the commissioner shall,  to  the  extent
 practicable,  review  and, where appropriate, prioritize presentation to
 the public health and health planning council of  complete  applications
 under paragraph (b) of this section where the applicants demonstrate, to
 the satisfaction of the commissioner, that the proposed change in owner-
 ship  is  consistent with the goals of paragraph (j) of subdivision 7 of
 section 4403-f of the public health law.
   § 6. This act shall take effect immediately; provided,  however,  that
 the  amendments  to  section  4403-f  of  the  public health law made by
 section two of this act shall not affect  the  repeal  of  such  section
 pursuant  to  chapter  659 of the laws of 1997, as amended, and shall be
 deemed repealed therewith; provided, further, that section three of this
 act shall take effect on the same date and in the same manner as section
 9-b of part B of chapter 57 of the laws of 2018, takes effect.

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Senate Bill S9180

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

2017-S9180 (ACTIVE) - Details

2017-S9180 (ACTIVE) - Summary

2017-S9180 (ACTIVE) - Sponsor Memo

2017-S9180 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9180

Share this bill

Sponsored By

Leroy Comrie

Archive: Last Bill Status - In Senate Committee Rules Committee

2017-S9180 (ACTIVE) - Details

2017-S9180 (ACTIVE) - Summary

2017-S9180 (ACTIVE) - Sponsor Memo

2017-S9180 (ACTIVE) - Bill Text download pdf

Comments