Legislation
SECTION 367-C
Payment for long term home health care programs
Social Services (SOS) CHAPTER 55, ARTICLE 5, TITLE 11
§ 367-c. Payment for long term home health care programs. 1. If a long
term home health care program as defined under article thirty-six of the
public health law is provided in the social services district for which
he has authority, the local social services official, before he
authorizes care in a nursing home or intermediate care facility for a
person eligible to receive services under this title, shall notify the
person in writing of the provisions of this section.
2. If a person eligible to receive services under the provisions of
this title who requires care, treatment, maintenance, nursing or other
services in a nursing home desires to remain and is deemed by his
physician able to remain in his own home or the home of a responsible
relative or other responsible adult if the necessary services are
provided, such person or his representative shall so inform the local
social services official. If a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority, such official
shall authorize an assessment under the provisions of section thirty-six
hundred sixteen of the public health law. If the results of the
assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for the
provision of services comparable to those that would be rendered in a
nursing home. In developing such plan, the official shall consult with
those persons performing the assessment. The services shall be provided
by a certified home health agency, hospital, or residential health care
facility authorized by the commissioner of health under article
thirty-six of the public health law to provide a long term home health
care program. At the time of the initial assessment, and at the time of
each subsequent assessment performed under the provisions of section
thirty-six hundred sixteen of the public health law, or more often if
the person's needs require, the official shall establish a monthly
budget in accordance with which he shall authorize payment for the
services provided under such plan. Total monthly expenditures made under
this title for such person shall not exceed a maximum of seventy-five
per cent, or such lesser percentage as may be determined by the
commissioner, of the average of the monthly rates payable under this
title for nursing home services within the social services district for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social services official may authorize the expenditure of any amount
accrued under this section during the past twelve months as a result of
the expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he requires services
the payment for which would exceed such monthly maximum, but it can be
reasonably anticipated that total expenditures for required services for
such person will not exceed such maximum calculated over a one year
period, the social services official may authorize payment for such
services.
3. If a person eligible to receive services under the provisions of
this title who requires health related care and services in an
intermediate care facility desires to remain and is deemed by his
physician able to remain in his own home or the home of a responsible
relative or other responsible adult if the necessary services are
provided, such person or his representative shall so inform the local
social services official. If a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority, such official
shall authorize an assessment under the provisions of section thirty-six
hundred sixteen of the public health law. If the results of the
assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for the
provision of services comparable to those that would be rendered in an
intermediate care facility. In developing such plan, the official shall
consult with those persons performing the assessment. The services shall
be provided by a certified home health agency, hospital, or residential
health care facility authorized by the commissioner of health under
article thirty-six of the public health law to provide a long term home
health care program. At the time of the initial assessment and at the
time of each subsequent assessment performed under the provisions of
section thirty-six hundred sixteen of the public health law, or more
often if the person's needs require, the official shall establish a
monthly budget in accordance with which he shall authorize payment for
the services provided under that plan. Total monthly expenditures made
under this title for such person shall not exceed a maximum of
seventy-five per cent, or such lesser percentage as may be determined by
the commissioner, of the average of the monthly rates paid under this
title for the provision of health related care and services in
intermediate care facilities within the social services district for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social services official may authorize the expenditure of any amount
accrued under this section during the past twelve months as a result of
the expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he requires services
the payment for which would exceed such monthly maximum, but it can be
reasonably anticipated that total expenditures for required services for
such person will not exceed such maximum calculated over a one year
period, the social services official may authorize payment for such
services.
3-a. (a) Notwithstanding any inconsistent provision of this section,
the commissioner is authorized and directed to establish a demonstration
program for the purpose of determining the impact of raising the
limitation on expenditures for the delivery of long term home health
care services to persons with special needs as defined in this
subdivision. Pursuant to such program, the commissioner shall permit
local social services officials to authorize, at their discretion, and
only after a determination that the maximum expenditure available
pursuant to subdivisions two and three of this section is not sufficient
to provide or continue to provide long term home health care services to
persons with special needs, maximum monthly expenditures for services
under this title to such persons, not to exceed one hundred percent of
the average of the monthly rates payable under this title for services
in a nursing home or intermediate care facility within the social
services district for which the social services official has authority.
However, if a continuing assessment of a person with special needs
demonstrates that he requires increased services, the social services
official may authorize the expenditure of any amount accrued under this
section during the past twelve months as a result of the expenditures
for that person not having exceeded such maximum. If an assessment of a
person with special needs demonstrates that he requires increased
services the payment for which would exceed such monthly maximum, but it
can be reasonably anticipated that total expenditures for required
services for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment for
such services.
(b) As used in this subdivision, the term "person with special needs"
shall mean a person for whom a plan of care has been developed pursuant
to subdivision two or three of this section who (1) needs care including
but not limited to respiratory therapy, tube feeding, decubitus care or
insulin therapy which cannot be appropriately provided by a personal
care aide as defined in regulations issued by the commissioner, or (2)
has one or more of the following conditions: mental disability as
defined in section 1.03 of the mental hygiene law, acquired immune
deficiency syndrome, or dementias, including Alzheimer's disease.
(c) The number of persons with special needs for whom a local social
services official may authorize payment for services pursuant to
paragraph (a) of this subdivision shall be limited to twenty-five
percent of the total number of persons, all long term home health care
programs, within a social services district are authorized to serve;
provided, however, in any district containing a city having a population
of one million or more, such limit shall be fifteen percent.
(d) In the event that a district reaches the limitation specified in
paragraph (c) of this subdivision, the local social services official
may, upon the approval of the commissioner, authorize payment for
services, pursuant to paragraph (a) of this subdivision, for additional
persons with special needs.
4. Notwithstanding any inconsistent provision of this section, if two
members of this same household, eligible to receive services under this
title, require care and services in either a nursing home or an
intermediate care facility, and assessments conducted pursuant to the
provisions of this section indicate that such persons can receive the
appropriate level of care at home, then such care may be provided at
home where total monthly expenditures made under this title for such
persons shall not exceed a maximum of seventy-five percent, or such
lesser percentage as may be determined by the commissioner, of the
monthly rates which would be payable under this title for both members
of the household for nursing home and/or intermediate care facility
services within the social services district. If assessments of such
persons' needs demonstrate that they require services the payment for
which would exceed such monthly maximum, but it can be reasonably
anticipated that total expenditures for required services for such
persons will not exceed the maximum calculated over a one year period, a
social services official may authorize payment for such services.
5. If a person eligible to receive services under the provisions of
this title who is medically eligible for care, treatment, maintenance,
nursing or other services in a nursing home or is medically eligible for
health related care and services in an intermediate care facility
desires to and is deemed by his or her physician able to remain in an
adult care facility, other than a shelter for adults, which is able and
willing to retain such person if the necessary services are provided,
such person or his or her representatives shall so inform the local
social services official. If a long term home health care program is
provided in a social services district, an official of such district
shall authorize an assessment under the provisions of section three
thousand six hundred sixteen of the public health law. If the results of
the assessment indicate that the person can receive the appropriate
level of care at such location, and meets the appropriate standards for
continued stay for such facility as are established by law and
regulation, such official shall prepare for that person a plan for the
provision of services. In developing such plan, the official shall
consult with those persons performing the assessment and with the
operator of the adult care facility. The services shall be provided by a
long term home health care program authorized pursuant to article
thirty-six of the public health law, provided, however that
notwithstanding the provisions of section three thousand six hundred
sixteen of such law, services shall not be provided prior to the
completion of the assessment. At the time of the initial assessment and
at the time of each subsequent assessment performed under the provisions
of section three thousand six hundred sixteen of the public health law,
or more often if the person's needs require, the official shall
establish a monthly budget in accordance with which he shall authorize
payment for the services provided under that plan, provided, however
that no services shall be authorized in the plan which the operator of
the facility is required by law and regulation to provide. The long term
home health care program providing services authorized in such plan
shall be solely responsible for managing and providing or arranging for
such authorized services. The operator of the adult care facility shall
be solely responsible for managing and providing those services which
the facility is required by law or regulation to provide. However, the
two entities shall collaborate to assure coordination. Total monthly
expenditures made under this title for such person shall not exceed a
maximum of fifty percent, or such lesser percentage as may be determined
by the commissioner, of the average of the monthly rates paid under this
title for the provision of nursing home services or health related care
and services in intermediate care facilities, whichever is appropriate,
within the social services district for which the official has
authority. However, if a continuing assessment of the person's needs
demonstrates that he or she requires increased services, the social
services official may authorize the expenditure of any amount accrued
under this section during the past twelve months as a result of the
expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he or she requires
services the payment for which would exceed such monthly maximum, but it
can be reasonably anticipated that total expenditures for required
services for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment for
such services. The provisions of this subdivision shall not be deemed to
alter standards for admission to an adult care facility nor shall the
admission of a person into such facility be contingent on such person's
enrollment in a long term home health care program.
6. Notwithstanding any inconsistent provision of law but subject to
expenditure limitations of this section, the commissioner, subject to
the approval of the state director of the budget, may authorize the
utilization of medical assistance funds to pay for services provided by
specified long term home health care programs in addition to those
services included in the medical assistance program under section three
hundred sixty-five-a of this chapter, so long as federal financial
participation is available for such services. Expenditures made under
this subdivision shall be deemed payments for medical assistance for
needy persons and shall be subject to reimbursement by the state in
accordance with the provisions of section three hundred sixty-eight-a of
this chapter.
7. No social services district shall make payments pursuant to title
XIX of the federal Social Security Act for benefits available under
title XVIII of such act without documentation that title XVIII claims
have been filed and denied.
8. No social services district shall make payment for a person
receiving a long term home health care program while payments are being
made for that person for inpatient care in a residential health care
facility or hospital.
9. The commissioner, together with the commissioner of health, shall
submit a report to the governor, president pro tem of the senate and
speaker of the assembly by the first day of February, nineteen hundred
eighty, on the implementation of this section. Such report shall include
a statement of the scope and status of long term home health care
programs, the extent to which such programs have affected
institutionalization, the costs associated with such programs, any
recommendations for legislative action, and such other matters as may be
pertinent.
10. This section shall be effective if, and as long as, federal aid is
available therefor.
term home health care program as defined under article thirty-six of the
public health law is provided in the social services district for which
he has authority, the local social services official, before he
authorizes care in a nursing home or intermediate care facility for a
person eligible to receive services under this title, shall notify the
person in writing of the provisions of this section.
2. If a person eligible to receive services under the provisions of
this title who requires care, treatment, maintenance, nursing or other
services in a nursing home desires to remain and is deemed by his
physician able to remain in his own home or the home of a responsible
relative or other responsible adult if the necessary services are
provided, such person or his representative shall so inform the local
social services official. If a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority, such official
shall authorize an assessment under the provisions of section thirty-six
hundred sixteen of the public health law. If the results of the
assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for the
provision of services comparable to those that would be rendered in a
nursing home. In developing such plan, the official shall consult with
those persons performing the assessment. The services shall be provided
by a certified home health agency, hospital, or residential health care
facility authorized by the commissioner of health under article
thirty-six of the public health law to provide a long term home health
care program. At the time of the initial assessment, and at the time of
each subsequent assessment performed under the provisions of section
thirty-six hundred sixteen of the public health law, or more often if
the person's needs require, the official shall establish a monthly
budget in accordance with which he shall authorize payment for the
services provided under such plan. Total monthly expenditures made under
this title for such person shall not exceed a maximum of seventy-five
per cent, or such lesser percentage as may be determined by the
commissioner, of the average of the monthly rates payable under this
title for nursing home services within the social services district for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social services official may authorize the expenditure of any amount
accrued under this section during the past twelve months as a result of
the expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he requires services
the payment for which would exceed such monthly maximum, but it can be
reasonably anticipated that total expenditures for required services for
such person will not exceed such maximum calculated over a one year
period, the social services official may authorize payment for such
services.
3. If a person eligible to receive services under the provisions of
this title who requires health related care and services in an
intermediate care facility desires to remain and is deemed by his
physician able to remain in his own home or the home of a responsible
relative or other responsible adult if the necessary services are
provided, such person or his representative shall so inform the local
social services official. If a long term home health care program as
defined under article thirty-six of the public health law is provided in
the social services district for which he has authority, such official
shall authorize an assessment under the provisions of section thirty-six
hundred sixteen of the public health law. If the results of the
assessment indicate that the person can receive the appropriate level of
care at home, the official shall prepare for that person a plan for the
provision of services comparable to those that would be rendered in an
intermediate care facility. In developing such plan, the official shall
consult with those persons performing the assessment. The services shall
be provided by a certified home health agency, hospital, or residential
health care facility authorized by the commissioner of health under
article thirty-six of the public health law to provide a long term home
health care program. At the time of the initial assessment and at the
time of each subsequent assessment performed under the provisions of
section thirty-six hundred sixteen of the public health law, or more
often if the person's needs require, the official shall establish a
monthly budget in accordance with which he shall authorize payment for
the services provided under that plan. Total monthly expenditures made
under this title for such person shall not exceed a maximum of
seventy-five per cent, or such lesser percentage as may be determined by
the commissioner, of the average of the monthly rates paid under this
title for the provision of health related care and services in
intermediate care facilities within the social services district for
which the official has authority. However, if a continuing assessment of
the person's needs demonstrates that he requires increased services, the
social services official may authorize the expenditure of any amount
accrued under this section during the past twelve months as a result of
the expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he requires services
the payment for which would exceed such monthly maximum, but it can be
reasonably anticipated that total expenditures for required services for
such person will not exceed such maximum calculated over a one year
period, the social services official may authorize payment for such
services.
3-a. (a) Notwithstanding any inconsistent provision of this section,
the commissioner is authorized and directed to establish a demonstration
program for the purpose of determining the impact of raising the
limitation on expenditures for the delivery of long term home health
care services to persons with special needs as defined in this
subdivision. Pursuant to such program, the commissioner shall permit
local social services officials to authorize, at their discretion, and
only after a determination that the maximum expenditure available
pursuant to subdivisions two and three of this section is not sufficient
to provide or continue to provide long term home health care services to
persons with special needs, maximum monthly expenditures for services
under this title to such persons, not to exceed one hundred percent of
the average of the monthly rates payable under this title for services
in a nursing home or intermediate care facility within the social
services district for which the social services official has authority.
However, if a continuing assessment of a person with special needs
demonstrates that he requires increased services, the social services
official may authorize the expenditure of any amount accrued under this
section during the past twelve months as a result of the expenditures
for that person not having exceeded such maximum. If an assessment of a
person with special needs demonstrates that he requires increased
services the payment for which would exceed such monthly maximum, but it
can be reasonably anticipated that total expenditures for required
services for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment for
such services.
(b) As used in this subdivision, the term "person with special needs"
shall mean a person for whom a plan of care has been developed pursuant
to subdivision two or three of this section who (1) needs care including
but not limited to respiratory therapy, tube feeding, decubitus care or
insulin therapy which cannot be appropriately provided by a personal
care aide as defined in regulations issued by the commissioner, or (2)
has one or more of the following conditions: mental disability as
defined in section 1.03 of the mental hygiene law, acquired immune
deficiency syndrome, or dementias, including Alzheimer's disease.
(c) The number of persons with special needs for whom a local social
services official may authorize payment for services pursuant to
paragraph (a) of this subdivision shall be limited to twenty-five
percent of the total number of persons, all long term home health care
programs, within a social services district are authorized to serve;
provided, however, in any district containing a city having a population
of one million or more, such limit shall be fifteen percent.
(d) In the event that a district reaches the limitation specified in
paragraph (c) of this subdivision, the local social services official
may, upon the approval of the commissioner, authorize payment for
services, pursuant to paragraph (a) of this subdivision, for additional
persons with special needs.
4. Notwithstanding any inconsistent provision of this section, if two
members of this same household, eligible to receive services under this
title, require care and services in either a nursing home or an
intermediate care facility, and assessments conducted pursuant to the
provisions of this section indicate that such persons can receive the
appropriate level of care at home, then such care may be provided at
home where total monthly expenditures made under this title for such
persons shall not exceed a maximum of seventy-five percent, or such
lesser percentage as may be determined by the commissioner, of the
monthly rates which would be payable under this title for both members
of the household for nursing home and/or intermediate care facility
services within the social services district. If assessments of such
persons' needs demonstrate that they require services the payment for
which would exceed such monthly maximum, but it can be reasonably
anticipated that total expenditures for required services for such
persons will not exceed the maximum calculated over a one year period, a
social services official may authorize payment for such services.
5. If a person eligible to receive services under the provisions of
this title who is medically eligible for care, treatment, maintenance,
nursing or other services in a nursing home or is medically eligible for
health related care and services in an intermediate care facility
desires to and is deemed by his or her physician able to remain in an
adult care facility, other than a shelter for adults, which is able and
willing to retain such person if the necessary services are provided,
such person or his or her representatives shall so inform the local
social services official. If a long term home health care program is
provided in a social services district, an official of such district
shall authorize an assessment under the provisions of section three
thousand six hundred sixteen of the public health law. If the results of
the assessment indicate that the person can receive the appropriate
level of care at such location, and meets the appropriate standards for
continued stay for such facility as are established by law and
regulation, such official shall prepare for that person a plan for the
provision of services. In developing such plan, the official shall
consult with those persons performing the assessment and with the
operator of the adult care facility. The services shall be provided by a
long term home health care program authorized pursuant to article
thirty-six of the public health law, provided, however that
notwithstanding the provisions of section three thousand six hundred
sixteen of such law, services shall not be provided prior to the
completion of the assessment. At the time of the initial assessment and
at the time of each subsequent assessment performed under the provisions
of section three thousand six hundred sixteen of the public health law,
or more often if the person's needs require, the official shall
establish a monthly budget in accordance with which he shall authorize
payment for the services provided under that plan, provided, however
that no services shall be authorized in the plan which the operator of
the facility is required by law and regulation to provide. The long term
home health care program providing services authorized in such plan
shall be solely responsible for managing and providing or arranging for
such authorized services. The operator of the adult care facility shall
be solely responsible for managing and providing those services which
the facility is required by law or regulation to provide. However, the
two entities shall collaborate to assure coordination. Total monthly
expenditures made under this title for such person shall not exceed a
maximum of fifty percent, or such lesser percentage as may be determined
by the commissioner, of the average of the monthly rates paid under this
title for the provision of nursing home services or health related care
and services in intermediate care facilities, whichever is appropriate,
within the social services district for which the official has
authority. However, if a continuing assessment of the person's needs
demonstrates that he or she requires increased services, the social
services official may authorize the expenditure of any amount accrued
under this section during the past twelve months as a result of the
expenditures for that person not exceeding such maximum. If an
assessment of the person's needs demonstrates that he or she requires
services the payment for which would exceed such monthly maximum, but it
can be reasonably anticipated that total expenditures for required
services for such person will not exceed such maximum calculated over a
one year period, the social services official may authorize payment for
such services. The provisions of this subdivision shall not be deemed to
alter standards for admission to an adult care facility nor shall the
admission of a person into such facility be contingent on such person's
enrollment in a long term home health care program.
6. Notwithstanding any inconsistent provision of law but subject to
expenditure limitations of this section, the commissioner, subject to
the approval of the state director of the budget, may authorize the
utilization of medical assistance funds to pay for services provided by
specified long term home health care programs in addition to those
services included in the medical assistance program under section three
hundred sixty-five-a of this chapter, so long as federal financial
participation is available for such services. Expenditures made under
this subdivision shall be deemed payments for medical assistance for
needy persons and shall be subject to reimbursement by the state in
accordance with the provisions of section three hundred sixty-eight-a of
this chapter.
7. No social services district shall make payments pursuant to title
XIX of the federal Social Security Act for benefits available under
title XVIII of such act without documentation that title XVIII claims
have been filed and denied.
8. No social services district shall make payment for a person
receiving a long term home health care program while payments are being
made for that person for inpatient care in a residential health care
facility or hospital.
9. The commissioner, together with the commissioner of health, shall
submit a report to the governor, president pro tem of the senate and
speaker of the assembly by the first day of February, nineteen hundred
eighty, on the implementation of this section. Such report shall include
a statement of the scope and status of long term home health care
programs, the extent to which such programs have affected
institutionalization, the costs associated with such programs, any
recommendations for legislative action, and such other matters as may be
pertinent.
10. This section shall be effective if, and as long as, federal aid is
available therefor.