S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8671
 
                           I N  A S S E M B L Y
 
                             January 10, 2022
                                ___________
 
 Introduced by M. of A. STIRPE -- read once and referred to the Committee
   on Health
 
 AN  ACT  to  amend the social services law and the public health law, in
   relation  to  providing  increased  rates  for  private  duty  nursing
   services that are provided to medically fragile adults
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 2  and  3  of  section  367-r  of  the  social
 services  law,  subdivision  2  as amended and subdivision 3 as added by
 section 2 of part PP of chapter 56 of the laws of 2020, are  amended  to
 read as follows:
   2.  Medically  fragile  children  AND  ADULTS.    (a) In addition, the
 commissioner shall further  increase  rates  for  private  duty  nursing
 services  that  are provided to medically fragile children to ensure the
 availability of such services to such children.  FURTHERMORE,  NO  LATER
 THAN SIXTY DAYS AFTER THE CHAPTER OF THE LAWS OF TWO THOUSAND TWENTY-TWO
 THAT  AMENDED  THIS  SUBDIVISION  TAKES EFFECT, INCREASED RATES SHALL BE
 EXTENDED FOR PRIVATE DUTY NURSING SERVICES PROVIDED TO MEDICALLY FRAGILE
 ADULTS. 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 AND
 ADULTS in a non-institutional setting as compared  to  an  institutional
 setting.  Medically  fragile  children  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.  FOR PURPOSES OF
 THIS SUBDIVISION, "MEDICALLY FRAGILE ADULT"  SHALL  BE  DEFINED  AS  ANY
 INDIVIDUAL  WHO PREVIOUSLY QUALIFIED AS A MEDICALLY FRAGILE CHILD BUT NO
 LONGER MEETS THE AGE REQUIREMENT.  Such  increased  rates  for  services
 rendered  to  such  children  AND ADULTS 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 AND ADULTS, and  the
 need for incentives to improve services and institute economies and such
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13224-03-1
 A. 8671                             2
 
 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 AND
 ADULTS.    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.
   (b) Private duty nursing services providers  which  have  their  rates
 adjusted  pursuant  to  paragraph (b) of subdivision one of this section
 and paragraph (a) of this subdivision 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 AND ADULTS and are prohibited from using such funds for any
 other  purpose. Funds provided under paragraph (b) of subdivision one of
 this section and paragraph (a) of this subdivision are not  intended  to
 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 AND ADULTS.   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 AND ADULTS.  Such recoup-
 ment shall be in addition to any other penalties provided by law.
   (c) The commissioner of health shall, subject  to  the  provisions  of
 paragraph  (b)  of  this  subdivision, and the provisions of subdivision
 three of this section, and subject to the availability of federal finan-
 cial participation,  annually  increase  fees  for  the  fee-for-service
 reimbursement  of  private  duty  nursing services provided to medically
 fragile  children  by  fee-for-service  private  duty  nursing  services
 providers  who enroll and participate in the provider directory pursuant
 to subdivision three of this section, over  a  period  of  three  years,
 commencing  October  first,  two  thousand  twenty,  by one-third annual
 increments, until such fees for reimbursement equal the final  benchmark
 payment designed to ensure adequate access to the service. In developing
 such  benchmark  the  commissioner of health may utilize the average two
 thousand eighteen Medicaid managed care payments  for  reimbursement  of
 such  private  duty  nursing  services.  The commissioner may promulgate
 regulations to implement the provisions of this paragraph.
   (D) THE COMMISSIONER OF HEALTH SHALL, SUBJECT  TO  THE  PROVISIONS  OF
 PARAGRAPH  (B)  OF  THIS  SUBDIVISION, AND THE PROVISIONS OF SUBDIVISION
 THREE OF THIS SECTION, AND SUBJECT TO THE AVAILABILITY OF FEDERAL FINAN-
 CIAL PARTICIPATION, INCREASE FEES FOR THE FEE-FOR-SERVICE  REIMBURSEMENT
 OF PRIVATE DUTY NURSING SERVICES PROVIDED TO MEDICALLY FRAGILE ADULTS BY
 FEE-FOR-SERVICE  PRIVATE  DUTY NURSING SERVICES PROVIDERS WHO ENROLL AND
 PARTICIPATE IN THE PROVIDER DIRECTORY PURSUANT TO SUBDIVISION  THREE  OF
 THIS  SECTION, NO LATER THAN SIXTY DAYS AFTER THE CHAPTER OF THE LAWS OF
 TWO THOUSAND TWENTY-TWO THAT AMENDED THIS SUBDIVISION TAKES  EFFECT,  SO
 SUCH  FEES  FOR  REIMBURSEMENT  EQUAL  THE BENCHMARK PAYMENT DESIGNED TO
 ENSURE ADEQUATE ACCESS TO THE SERVICE. IN DEVELOPING SUCH BENCHMARK  THE
 COMMISSIONER OF HEALTH MAY UTILIZE THE AVERAGE TWO THOUSAND TWENTY MEDI-
 A. 8671                             3
 
 CAID  MANAGED CARE PAYMENTS FOR REIMBURSEMENT OF SUCH PRIVATE DUTY NURS-
 ING SERVICES. THE COMMISSIONER MAY PROMULGATE REGULATIONS  TO  IMPLEMENT
 THE PROVISIONS OF THIS PARAGRAPH.
   3.   Provider  directory  for  fee-for-service  private  duty  nursing
 services provided to medically fragile children AND ADULTS.  The commis-
 sioner of health is authorized to establish  a  directory  of  qualified
 providers  for  the  purpose  of promoting the availability and ensuring
 delivery of fee-for-service private duty nursing services  to  medically
 fragile  children [and individuals transitioning out of such category of
 care] AND ADULTS.  Qualified providers enrolling in the directory  shall
 ensure  the availability and delivery of and shall provide such services
 to those individuals as are in need of such services, and shall  receive
 increased  reimbursement  for  such services pursuant to [paragraph (c)]
 PARAGRAPHS (C) AND (D) of subdivision two of this section. The directory
 shall offer enrollment to all private duty nursing services providers to
 promote and ensure the participation in the  directory  of  all  nursing
 services  providers  available  to  serve medically fragile children AND
 ADULTS.
   § 2. 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  AND  ADULTS.  Rates  of  payment  for
 continuous  nursing  services  for medically fragile children AND ADULTS
 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 AND ADULTS  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  AND
 ADULTS.  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  AND
 ADULTS  in  a  non-institutional setting as compared to an institutional
 setting. For the purposes of this subdivision, a medically fragile child
 shall mean a child who is at risk of hospitalization or  institutionali-
 zation,  including  but not limited to children who are technologically-
 dependent for life or health-sustaining functions, require complex medi-
 cation 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  compli-
 cations  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
 A. 8671                             4
 
 continuous nursing services.  FOR THE PURPOSES OF  THIS  SUBDIVISION,  A
 MEDICALLY  FRAGILE ADULT SHALL MEAN ANY INDIVIDUAL WHO PREVIOUSLY QUALI-
 FIED AS A MEDICALLY FRAGILE CHILD BUT NO LONGER MEETS THE  AGE  REQUIRE-
 MENT.   The  commissioner  shall  promulgate  regulations  to  implement
 provisions of this subdivision and may also direct the providers  speci-
 fied  in  this subdivision to provide such additional information and in
 such form as the commissioner shall determine is reasonably necessary to
 implement the provisions of this subdivision.
   § 3. This act shall take effect immediately.