S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8295
 
                             I N  S E N A T E
 
                             February 10, 2022
                                ___________
 
 Introduced  by  Sen.  RIVERA -- 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 enacting the New York home care first act
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. This act shall be known and may be cited as the  "New  York
 home care first act".
   § 2. Section 3600 of the public health law, as added by chapter 895 of
 the laws of 1977, is amended to read as follows:
   §  3600.  Declaration of legislative findings and intent. The legisla-
 ture hereby finds and declares that the provision of high  quality  home
 care  services  to  residents  of  New York state is a priority concern.
 [Expanding] ENSURING THE AVAILABILITY OF these services  [to  make  them
 available]  throughout  the  state as a [viable] CORE part of the health
 care system [and as an] FOR INDIVIDUALS' NEEDS, INCLUDING AS AN alterna-
 tive to institutional care should be a  primary  focus  of  the  state's
 actions.
   Home  health  care  has [only recently] LONG been recognized [legisla-
 tively] as an integral part of the health care delivery system  and  has
 proven  to  have  an  important  and  valuable role in patient care. The
 certified home health AND  LICENSED  HOME  CARE  SERVICES  agencies  AND
 PROGRAMS  render  a  coordinated  array of services to patients in their
 homes[,] AND COMMUNITIES. THESE HOME CARE SERVICES AGENCIES PARTNER WITH
 HEALTH CARE PROFESSIONALS, HOSPITALS, HEALTH PLANS, COUNTY PUBLIC HEALTH
 DEPARTMENTS AND MENTAL HEALTH PROVIDERS IN  THE  PROVISION  OF  PRIMARY,
 PREVENTIVE,  PUBLIC  HEALTH,  PRE-ACUTE,  POST-ACUTE AND LONG-TERM CARE,
 thereby avoiding prolonged institutionalization, concomitant high  costs
 and associated adverse social and medical implications.
   The  legislature  intends  that  there  be  a public commitment to the
 appropriate provision and [expansion] ACCESSIBILITY of services rendered
 to the residents of the state by [certified] home [health] CARE SERVICES
 agencies, [to] INCLUDING FINANCIAL AND  PROGRAMMATIC  SUPPORT  FOR:  the
 maintenance  of  a  consistently high level of services by all home care
 services  agencies[,  to]  AND  WORKFORCE;  THE  RECRUITMENT,  TRAINING,
 COMPENSATION  AND  RETENTION  OF  A CAPABLE AND COMMITTED WORKFORCE; THE
 INTEGRATION OF HOME CARE PROVIDER ROLES IN THE STATE'S STRATEGIC  PRIMA-
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14002-01-1
 S. 8295                             2
 
 RY,  PREVENTIVE,  PUBLIC  HEALTH  AND  HEALTH CARE DELIVERY PLANNING AND
 PROGRAMMING; the central collection and public accessibility of informa-
 tion concerning all  organized  home  care  services[,];  and  [to]  the
 adequate regulation and coordination of existing home care services.
   §  3. The public health law is amended by adding a new section 3603 to
 read as follows:
   § 3603. HOME CARE POLICY; IMPLEMENTATION.  1. THE  COMMISSIONER  SHALL
 MAKE  REGULATIONS, ISSUE GUIDANCE AND TAKE ACTIONS REASONABLY NECESSARY,
 INCLUDING COORDINATING WITH OTHER STATE AGENCIES, TO PROMOTE THE  POLICY
 UNDER THIS ARTICLE INCLUDING, BUT NOT BE LIMITED TO:
   (A)  INFORMATION  AND REFERRAL GUIDANCE TO BE MADE AVAILABLE TO HOSPI-
 TALS AND NURSING HOME DISCHARGE  PLANNERS,  HEALTH  CARE  PROFESSIONALS,
 AMBULATORY  SURGICAL  CENTERS,  MENTAL  HEALTH  PROVIDERS, COUNTY PUBLIC
 HEALTH DEPARTMENTS AND OTHER APPLICABLE HEALTH CARE SETTINGS, TO  ASSIST
 IN  THE CONSIDERATION AND REFERRAL OF PATIENTS FOR HOME CARE SERVICES AS
 A PRIMARY OR ADJUNCTIVE SERVICE OPTION.  THE  INFORMATION  AND  GUIDANCE
 SHALL ALSO BE MADE AVAILABLE FOR THE PURPOSE OF ASSISTING PROVIDERS' AND
 PRACTITIONERS'  RESPONSIBILITIES  UNDER  SUBDIVISION  ELEVEN  OF SECTION
 THREE HUNDRED  SIXTY-FIVE-A  (RELATING  TO  ELIGIBILITY  FOR  HOME  CARE
 SERVICES) OF THE SOCIAL SERVICES LAW;
   (B)  THE DEVELOPMENT OF A COMPREHENSIVE PUBLIC EDUCATION PROGRAM ABOUT
 HOME CARE SERVICES, INCLUDING  BUT  NOT  LIMITED  TO:  (I)  A  DEDICATED
 PORTION  OF  THE  DEPARTMENT'S  WEBSITE THAT DESCRIBES AND DISTINGUISHES
 HOME CARE PROVIDER TYPES OFFERED OR AUTHORIZED BY ANY STATE AGENCY; (II)
 THE TYPES OF SERVICES TYPICALLY AVAILABLE BY PROVIDER AND  PROGRAM  TYPE
 INCLUDING HOME AND COMMUNITY BASED WAIVER PROGRAMS AND CONSUMER DIRECTED
 PERSONAL  ASSISTANCE  PROGRAMS;  (III)  HOME  CARE  THIRD PARTY BENEFITS
 PROVIDED UNDER THE INSURANCE LAW FOR INDIVIDUAL, SMALL GROUP  AND  LARGE
 GROUP    NON-PUBLIC  COVERAGES, MEDICAID, MEDICARE, AND OTHER STATE-SUP-
 PORTED PUBLIC PROGRAMS; (IV) THE CONTACT INFORMATION BY WHICH  CONSUMERS
 MAY  ACCESS  HOME  CARE  SERVICES; AND (V) THE NAME AND LOCATION OF HOME
 CARE SERVICE AGENCIES THROUGHOUT THE STATE;
   (C) THE INTEGRATION OF HOME CARE PROVIDER ROLES IN THE STATE'S STRATE-
 GIC PRIMARY, PREVENTIVE, PUBLIC HEALTH AND HEALTH CARE DELIVERY PLANNING
 AND PROGRAMMING; AND
   (D) THE  INCLUSION  OF  HOME  CARE  SERVICE  PROVIDERS  IN  DEPARTMENT
 PROGRAMS  THAT  PROVIDE  SUPPORT  AND  FUNDING  FOR HEALTH CARE CAPITAL,
 INFRASTRUCTURE, INCLUDING ELECTRONIC MEDICAL RECORDS  AND  INTEROPERABI-
 LITY,  AS WELL AS DIRECT POINT OF SERVICE CLINICAL TECHNOLOGY, AND WORK-
 FORCE DEVELOPMENT.
   2. IN IMPLEMENTING THIS SECTION, THE COMMISSIONER SHALL SEEK THE INPUT
 OF REPRESENTATIVES OF HOME CARE PROVIDERS, HOSPITALS AND NURSING  HOMES,
 HEALTH  CARE  PROFESSIONALS,  HEALTH  PLANS  AND INSURERS, CONSUMERS AND
 THEIR FAMILY MEMBERS AND CAREGIVERS, AND HOME  CARE  WORKERS  (INCLUDING
 LABOR ORGANIZATIONS).
   §  4.  Section 365-a of the social services law is amended by adding a
 new subdivision 11 to read as follows:
   11. HOME CARE SERVICES. IF AN INDIVIDUAL ELIGIBLE FOR  SERVICES  UNDER
 THIS  TITLE  IS  DETERMINED UNDER THIS ARTICLE, BY A HEALTH CARE PROFES-
 SIONAL, TO BE MEDICALLY ELIGIBLE FOR ADMISSION TO A GENERAL HOSPITAL FOR
 SERVICES OTHER THAN ACUTE OR EMERGENCY SERVICES, OR TO A  NURSING  HOME,
 OR  THE  INDIVIDUAL  IS BEING CARED FOR IN A GENERAL HOSPITAL OR NURSING
 HOME AND DESIRES TO RECEIVE CARE AT HOME, AND HOME CARE  SERVICES  WOULD
 BE  REASONABLY  APPROPRIATE  FOR THE INDIVIDUAL, THE INDIVIDUAL SHALL BE
 INFORMED ORALLY AND IN WRITING OF THE AVAILABILITY OF HOME CARE SERVICES
 AVAILABLE IN  THE  PERSON'S  COUNTY  OF  RESIDENCE.  IF  THE  INDIVIDUAL
 S. 8295                             3
 
 CONSENTS,  AN  APPROPRIATE HEALTH CARE PROFESSIONAL MAY REFER THE PERSON
 FOR A COMPREHENSIVE ASSESSMENT FOR HOME CARE SERVICES UNDER THIS  TITLE.
 WHERE  THE  INDIVIDUAL LACKS CAPACITY TO MAKE HEALTH CARE DECISIONS, THE
 NOTICE SHALL BE MADE TO, AND CONSENT MAY BE MADE BY, A PERSON AUTHORIZED
 TO MAKE HEALTH CARE DECISIONS FOR THE INDIVIDUAL.
   §  5.  Subdivision  3 and paragraphs (a) and (b) of subdivision 3-c of
 section 3614 of the public health law, subdivision 3 as amended by chap-
 ter 622 of the laws of 1988, paragraphs (a) and (b) of  subdivision  3-c
 as  added  by  section 63-b of part C of chapter 58 of the laws of 2007,
 are amended  and three new subdivisions 1-a, 9-a and  15  are  added  to
 read as follows:
   1-A.    RATES  FOR  HOME CARE SERVICES AGENCIES AND HOME CARE SERVICES
 UNDER THIS SECTION SHALL BE REASONABLE AND  REASONABLY  RELATED  TO  THE
 COST  OF EFFICIENTLY PROVIDING THE SERVICES AND ASSURING AN ADEQUATE AND
 ACCESSIBLE SUPPLY OF  THE  SERVICES  (INCLUDING  WORKFORCE  RECRUITMENT,
 TRAINING,  COMPENSATION, RETENTION AND SUFFICIENCY); TAKING INTO CONSID-
 ERATION THE ELEMENTS OF COST, GEOGRAPHICAL DIFFERENTIALS IN THE ELEMENTS
 OF COST CONSIDERED, ECONOMIC FACTORS IN THE AREA IN WHICH  THE  SERVICES
 ARE TO BE DELIVERED.
   3.  Prior  to the approval of [such] THE rates, the commissioner shall
 determine and certify to the state  director  of  the  budget  that  the
 proposed  rate  schedules  for payments for certified home health agency
 services or services provided by long term home health care programs  or
 AIDS  home  care  programs  [are  reasonably related to the costs of the
 efficient production of such services. In making such certification, the
 commissioner  shall  take  into  consideration  the  elements  of  cost,
 geographical  differentials in the elements of cost considered, economic
 factors in the area in which the certified home health agency,  provider
 of a long term home health care program or provider of an AIDS home care
 program  is  located, costs of certified home health agencies, providers
 of long term home health care programs or providers of  AIDS  home  care
 programs  of  comparable  size,  and  the need for incentives to improve
 services and institute economies] MEET THE REQUIREMENTS OF THIS SECTION.
   (a) [Demonstration rates] RATES of payment or  fees  shall  be  estab-
 lished  IN COMPLIANCE WITH THIS SECTION for telehealth services provided
 by a certified home health agency, a long term home health care  program
 or AIDS home care program, or for telehealth services by a licensed home
 care  services  agency under contract with such an agency or program, in
 order to ensure the availability of technology-based patient monitoring,
 communication  and  health  management.  Reimbursement  for   telehealth
 services  provided  [pursuant  to]  UNDER this section shall be provided
 [only in connection with Federal Food and  Drug  Administration-approved
 and  interoperable  devices,  and  incorporated as part of the patient's
 plan of care] FOR TELEHEALTH SERVICES DESCRIBED IN THIS SECTION, AS WELL
 AS TELEHEALTH AS DEFINED IN ARTICLE TWENTY-NINE-G OF THIS  CHAPTER.  The
 commissioner  shall  seek federal financial participation with regard to
 this [demonstration] initiative. SUCH REIMBURSEMENT SHALL BE PROVIDED AS
 EITHER A SEPARATE RATE FROM, OR AS A SPECIFIED PAYMENT UNDER, THE  METH-
 ODOLOGY UNDER SUBDIVISION THIRTEEN OF THIS SECTION.
   (b)  The  purposes  of  [such]  THE services shall be to assist in the
 effective monitoring and management of  patients  whose  medical,  func-
 tional  and/or  environmental needs can be appropriately and cost-effec-
 tively met at home through the application of  telehealth  intervention.
 Reimbursement provided [pursuant to] UNDER this subdivision shall be for
 services  to  patients with conditions or clinical circumstances associ-
 ated with the need  for  frequent  monitoring,  [and/or]  the  need  for
 S. 8295                             4
 
 frequent  physician, skilled nursing or acute care services, [and] where
 the provision of telehealth services can appropriately reduce  the  need
 for  on-site  or  in-office  visits  or acute or long term care facility
 admissions,  OR  WHERE THE TELEHEALTH SERVICES APPROPRIATELY ALLOW FOR A
 HOME CARE SERVICE BY  MEANS  OF  TELEHEALTH  TECHNOLOGY  INSTEAD  OF  AN
 IN-PERSON  VISIT BY THE HOME CARE SERVICES AGENCY. [Such] THE conditions
 and clinical circumstances shall include, but not be limited to, conges-
 tive heart failure, diabetes,  chronic  pulmonary  obstructive  disease,
 wound  care,  polypharmacy, mental or behavioral problems limiting self-
 management, and technology-dependent care  such  as  continuous  oxygen,
 ventilator care, total parenteral nutrition or enteral feeding.
   9-A.  (A)  NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION,
 EFFECTIVE FOR ANNUAL PERIODS BEGINNING APRIL FIRST, TWO  THOUSAND  TWEN-
 TY-TWO,  THE  COMMISSIONER SHALL, SUBJECT TO THE AVAILABILITY OF FEDERAL
 FINANCIAL PARTICIPATION AND UPON APPROVAL OF THE STATE DIRECTOR  OF  THE
 BUDGET, FURTHER ADJUST MEDICAL ASSISTANCE RATES OF PAYMENT FOR HOME CARE
 SERVICES  AGENCIES  AND HOME CARE SERVICES, INCLUDING HOME CARE SERVICES
 PROVIDED BY ENTITIES QUALIFYING UNDER SUBDIVISION NINE OF THIS  SECTION,
 TARGETED  FOR  INCREASED  SALARY  AND  BENEFITS  FOR  HOME HEALTH AIDES,
 PERSONAL CARE AIDES AND CONSUMER DIRECTED PERSONAL ASSISTANTS,  AS  WELL
 AS  FOR  RECRUITMENT,  TRAINING AND RETENTION OF DIRECT CARE WORKERS FOR
 SERVICES IN SHORTAGE AREAS AND BY SHORTAGE DISCIPLINES WHICH MAY INCLUDE
 NURSES, THERAPISTS, SOCIAL WORKERS, HOME HEALTH AIDES AND PERSONAL  CARE
 AIDES.  THE  COMMISSIONER  SHALL BE FURTHER AUTHORIZED, UPON APPROVAL OF
 THE STATE DIRECTOR OF THE BUDGET, TO UTILIZE STATE FUNDS, AS  AVAILABLE,
 INCLUDING  FEDERAL  COVID-19  RELIEF  FUNDS  ALLOCATED  TO  NEW YORK, TO
 DISTRIBUTE AS DIRECT FUNDING TO HOME CARE SERVICE PROVIDER ENTITIES  FOR
 THESE  PURPOSES AND PERSONNEL FOR SERVICES TO MEDICAL ASSISTANCE RECIPI-
 ENTS.
   (B) RATE ADJUSTMENTS AND DIRECT PAYMENTS MADE UNDER  THIS  SUBDIVISION
 MAY  ALSO  BE  PROVIDED  TO  PILOT  TEST  THE  IMPACT ON RECRUITMENT AND
 RETENTION OF ALLOWING FUNDS TO BE USED FOR CRITICAL SUPPORTS AND  INCEN-
 TIVES  FOR  DIRECT  CARE PERSONNEL, INCLUDING TRANSPORTATION, EDUCATION,
 TRAINING, CHILD  DAY  CARE,  CAREER  LADDER,  PEER  SUPPORT,  AND  OTHER
 SUPPORTS WHICH THE COMMISSIONER MAY DETERMINE.
   (C) ON OR BEFORE OCTOBER FIRST, TWO THOUSAND TWENTY-THREE, THE COMMIS-
 SIONER SHALL REPORT TO THE GOVERNOR AND LEGISLATURE ON THE EFFECTIVENESS
 OF  THIS  SECTION  IN RECRUITMENT AND RETENTION OF DIRECT CARE HOME CARE
 PERSONNEL, AND IN ADDRESSING COMMUNITY NEED, AND SHALL MAKE  RECOMMENDA-
 TIONS  FOR  THE CONTINUATION OR MODIFICATION OF THE PROGRAM. THE COMMIS-
 SIONER SHALL SEEK THE INPUT OF REPRESENTATIVES OF THE PROVIDERS,  PLANS,
 CONSUMERS AND WORKERS IN EXAMINING AND REPORTING ON THE PROGRAM.
   15. SUBJECT TO THE AVAILABILITY OF FEDERAL FINANCIAL PARTICIPATION AND
 APPROVAL  OF  THE  STATE  DIRECTOR OF THE BUDGET, FOR HOME CARE SERVICES
 PROVIDED ON AND AFTER APRIL FIRST, TWO THOUSAND TWENTY-TWO, THE  COMMIS-
 SIONER  SHALL  ADJUST  MEDICAID  RATES  OF PAYMENT FOR HOME CARE SERVICE
 AGENCIES TO ADDRESS INCREASES IN REIMBURSEMENT AS  MAY  BE  REQUIRED  BY
 IMPLEMENTATION  OF  AMENDMENTS TO THIS ARTICLE AND SUBDIVISION ELEVEN OF
 SECTION THREE HUNDRED SIXTY-FIVE-A OF THE SOCIAL SERVICES  LAW  MADE  BY
 THE  CHAPTER  OF  THE  LAWS  OF  TWO THOUSAND TWENTY-TWO THAT ADDED THIS
 SUBDIVISION.
   § 6. Subdivision 8 of section 4403-f of  the  public  health  law,  as
 amended  by  section  21 of part B of chapter 59 of the laws of 2016, is
 amended to read as follows:
   8. Payment rates for managed long term care  plan  enrollees  eligible
 for  medical  assistance. The commissioner shall establish payment rates
 S. 8295                             5
 
 for services provided to enrollees  eligible  under  title  XIX  of  the
 federal  social  security  act.  Such  payment rates shall be subject to
 approval by the director of the division of the budget and shall reflect
 savings to both state and local governments when compared to costs which
 would  be incurred by such program if enrollees were to receive compara-
 ble health and long term care services on a fee-for-service basis in the
 geographic region in which such services are proposed  to  be  provided.
 Payment rates shall be risk-adjusted to take into account the character-
 istics  of  enrollees, or proposed enrollees, including, but not limited
 to:   frailty, disability level,  health  and  functional  status,  age,
 gender,  the  nature  of  services provided to such enrollees, and other
 factors as determined by the commissioner. The  risk  adjusted  premiums
 may  also  be  combined  with  disincentives or requirements designed to
 mitigate any incentives to obtain higher payment categories. In  setting
 such  payment  rates, the commissioner shall consider costs borne by the
 managed care program to ensure actuarially sound and adequate  rates  of
 payment  to ensure quality of care shall comply with all applicable laws
 and regulations, state and federal, including [regulations as  to],  BUT
 NOT  LIMITED  TO, THOSE RELATING TO WAGES, LABOR AND actuarial soundness
 [for medicaid managed care]. FOR PREMIUMS EFFECTIVE ON  AN  AFTER  APRIL
 FIRST,  TWO THOUSAND TWENTY-TWO, THE COMMISSIONER SHALL FURTHER CONSIDER
 INCREASES TO PREMIUMS TO  ADDRESS  COST  AND  REIMBURSEMENT  ADJUSTMENTS
 REQUIRED BY THE DEPARTMENT'S IMPLEMENTATION OF THE AMENDMENTS TO ARTICLE
 THIRTY-SIX  OF  THIS  CHAPTER  AND  SUBDIVISION  ELEVEN OF SECTION THREE
 HUNDRED SIXTY-FIVE-A OF THE SOCIAL SERVICES LAW MADE BY THE  CHAPTER  OF
 THE LAWS OF TWO THOUSAND TWENTY-TWO THAT ADDED THIS SENTENCE.
   §  7.  The  superintendent of financial services, in consultation with
 the commissioner of health, and representatives of state-licensed health
 insurers, home care service agencies  and  consumers  (including  family
 members  of  consumers),  labor  organizations  representing  home  care
 service workers, and respective statewide associations or organizations,
 shall examine the terms of coverage for home care services as  specified
 in articles 32 and 43 of the insurance law and, on or before December 1,
 2022, report to the legislature and governor on the following:
   a. The extent to which these coverage terms, including coverage exclu-
 sions  as  well as riders that permit the purchase of expanded coverage,
 are aligned with state of art medical and health system practice for the
 providing in-home care;
   b. The extent to which state incentives  for  purchase  of  home  care
 service coverage, including expanded coverage, may be cost-beneficial to
 recipients,  to  the  health  care  system, and state medical assistance
 program specifically; and
   c. Recommendations for modifications of articles  32  and  43  of  the
 insurance  law,  and  such  other laws, including the public health law,
 workers' compensation law, social services law, mental hygiene  law  and
 elder  law, as would align the terms of home care coverage with state of
 art medical and health system practices.
   § 8. This act shall take effect immediately; provided,  however,  that
 the  amendments  to subdivision 8 of section 4403-f of the public health
 law made by section six of this act shall be subject to  the  expiration
 and repeal of such section and shall expire and be deemed repealed ther-
 ewith.