§ 367-r. Private duty nursing services worker recruitment and
retention program. 1. (a) The commissioner of health, with the approval
of the director of the budget, shall establish fees for the
reimbursement of private duty nursing services.

(b) The commissioner of health shall, subject to the provisions of
paragraph (b) of subdivision two of this section and to the availability
of federal financial participation, increase medical assistance rates of
payment by three percent for services provided on and after December
first, two thousand two, for private duty nursing services for the
purposes of improving recruitment and retention of private duty nurses.

2. Medically fragile children and medically fragile 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 effective date of the chapter of the
laws of two thousand twenty-two that amended this subdivision, 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 medically fragile 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 including but not limited to 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
nursing service is provided, costs associated with the provision of
private duty nursing services to medically fragile children and
medically fragile adults, 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, satisfactory training and
experience to provide services to such children and medically fragile
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
fragile children and medically fragile 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 medically fragile 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 medically fragile adults.
Such recoupment 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
financial 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
financial 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
effective date of the chapter of the laws of two thousand twenty-two
that amended this subdivision, 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 Medicaid managed care payments for
reimbursement of such private duty nursing 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 medically fragile
adults. The commissioner 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 medically fragile
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 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 medically fragile
adults.