STATE OF NEW YORK
________________________________________________________________________
2931
2023-2024 Regular Sessions
IN SENATE
January 25, 2023
___________
Introduced by Sens. RIVERA, ADDABBO, GALLIVAN -- 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:
1 Section 1. This act shall be known and may be cited as the "New York
2 home care first act".
3 § 2. Section 3600 of the public health law, as added by chapter 895 of
4 the laws of 1977, is amended to read as follows:
5 § 3600. Declaration of legislative findings and intent. The legisla-
6 ture hereby finds and declares that the provision of high quality home
7 care services to residents of New York state is a priority concern.
8 [Expanding] Ensuring the availability of these services [to make them
9 available] throughout the state as a [viable] core part of the health
10 care system [and as an] for individuals' needs, including as an alterna-
11 tive to institutional care should be a primary focus of the state's
12 actions.
13 Home health care has [only recently] long been recognized [legisla-
14 tively] as an integral part of the health care delivery system and has
15 proven to have an important and valuable role in patient care. The
16 certified home health and licensed home care services agencies and
17 programs render a coordinated array of services to patients in their
18 homes[,] and communities. These home care services agencies partner with
19 health care professionals, hospitals, health plans, county public health
20 departments and mental health providers in the provision of primary,
21 preventive, public health, pre-acute, post-acute and long-term care,
22 thereby avoiding prolonged institutionalization, concomitant high costs
23 and associated adverse social and medical implications.
24 The legislature intends that there be a public commitment to the
25 appropriate provision and [expansion] accessibility of services rendered
26 to the residents of the state by [certified] home [health] care services
27 agencies, [to] including financial and programmatic support for: the
28 maintenance of a consistently high level of services by all home care
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05278-01-3
S. 2931 2
1 services agencies[, to] and workforce; the recruitment, training,
2 compensation and retention of a capable and committed workforce; the
3 integration of home care provider roles in the state's strategic prima-
4 ry, preventive, public health and health care delivery planning and
5 programming; the central collection and public accessibility of informa-
6 tion concerning all organized home care services[,]; and [to] the
7 adequate regulation and coordination of existing home care services.
8 § 3. The public health law is amended by adding a new section 3603 to
9 read as follows:
10 § 3603. Home care policy; implementation. 1. The commissioner shall
11 make regulations, issue guidance and take actions reasonably necessary,
12 including coordinating with other state agencies, to promote the policy
13 under this article including, but not be limited to:
14 (a) information and referral guidance to be made available to hospi-
15 tals and nursing home discharge planners, health care professionals,
16 ambulatory surgical centers, mental health providers, county public
17 health departments and other applicable health care settings, to assist
18 in the consideration and referral of patients for home care services as
19 a primary or adjunctive service option. The information and guidance
20 shall also be made available for the purpose of assisting providers' and
21 practitioners' responsibilities under subdivision eleven of section
22 three hundred sixty-five-a (relating to eligibility for home care
23 services) of the social services law;
24 (b) the development of a comprehensive public education program about
25 home care services, including but not limited to: (i) a dedicated
26 portion of the department's website that describes and distinguishes
27 home care provider types offered or authorized by any state agency; (ii)
28 the types of services typically available by provider and program type
29 including home and community based waiver programs and consumer directed
30 personal assistance programs; (iii) home care third party benefits
31 provided under the insurance law for individual, small group and large
32 group non-public coverages, Medicaid, Medicare, and other state-sup-
33 ported public programs; (iv) the contact information by which consumers
34 may access home care services; and (v) the name and location of home
35 care service agencies throughout the state;
36 (c) the integration of home care provider roles in the state's strate-
37 gic primary, preventive, public health and health care delivery planning
38 and programming; and
39 (d) the inclusion of home care service providers in department
40 programs that provide support and funding for health care capital,
41 infrastructure, including electronic medical records and interoperabi-
42 lity, as well as direct point of service clinical technology, and work-
43 force development.
44 2. In implementing this section, the commissioner shall seek the input
45 of representatives of home care providers, hospitals and nursing homes,
46 health care professionals, health plans and insurers, consumers and
47 their family members and caregivers, and home care workers (including
48 labor organizations).
49 § 4. Section 365-a of the social services law is amended by adding a
50 new subdivision 11 to read as follows:
51 11. Home care services. If an individual eligible for services under
52 this title is determined under this article, by a health care profes-
53 sional, to be medically eligible for admission to a general hospital for
54 services other than acute or emergency services, or to a nursing home,
55 or the individual is being cared for in a general hospital or nursing
56 home and desires to receive care at home, and home care services would
S. 2931 3
1 be reasonably appropriate for the individual, the individual shall be
2 informed orally and in writing of the availability of home care services
3 available in the person's county of residence. If the individual
4 consents, an appropriate health care professional may refer the person
5 for a comprehensive assessment for home care services under this title.
6 Where the individual lacks capacity to make health care decisions, the
7 notice shall be made to, and consent may be made by, a person authorized
8 to make health care decisions for the individual.
9 § 5. Subdivision 3 and paragraphs (a) and (b) of subdivision 3-c of
10 section 3614 of the public health law, subdivision 3 as amended by chap-
11 ter 622 of the laws of 1988, paragraphs (a) and (b) of subdivision 3-c
12 as added by section 63-b of part C of chapter 58 of the laws of 2007,
13 are amended and three new subdivisions 1-a, 9-a and 15 are added to
14 read as follows:
15 1-a. Rates for home care services agencies and home care services
16 under this section shall be reasonable and reasonably related to the
17 cost of efficiently providing the services and assuring an adequate and
18 accessible supply of the services (including workforce recruitment,
19 training, compensation, retention and sufficiency); taking into consid-
20 eration the elements of cost, geographical differentials in the elements
21 of cost considered, economic factors in the area in which the services
22 are to be delivered.
23 3. Prior to the approval of [such] the rates, the commissioner shall
24 determine and certify to the state director of the budget that the
25 proposed rate schedules for payments for certified home health agency
26 services or services provided by long term home health care programs or
27 AIDS home care programs [are reasonably related to the costs of the
28 efficient production of such services. In making such certification, the
29 commissioner shall take into consideration the elements of cost,
30 geographical differentials in the elements of cost considered, economic
31 factors in the area in which the certified home health agency, provider
32 of a long term home health care program or provider of an AIDS home care
33 program is located, costs of certified home health agencies, providers
34 of long term home health care programs or providers of AIDS home care
35 programs of comparable size, and the need for incentives to improve
36 services and institute economies] meet the requirements of this section.
37 (a) [Demonstration rates] Rates of payment or fees shall be estab-
38 lished in compliance with this section for telehealth services provided
39 by a certified home health agency, a long term home health care program
40 or AIDS home care program, or for telehealth services by a licensed home
41 care services agency under contract with such an agency or program, in
42 order to ensure the availability of technology-based patient monitoring,
43 communication and health management. Reimbursement for telehealth
44 services provided [pursuant to] under this section shall be provided
45 [only in connection with Federal Food and Drug Administration-approved
46 and interoperable devices, and incorporated as part of the patient's
47 plan of care] for telehealth services described in this section, as well
48 as telehealth as defined in article twenty-nine-G of this chapter. The
49 commissioner shall seek federal financial participation with regard to
50 this [demonstration] initiative. Such reimbursement shall be provided as
51 either a separate rate from, or as a specified payment under, the meth-
52 odology under subdivision thirteen of this section.
53 (b) The purposes of [such] the services shall be to assist in the
54 effective monitoring and management of patients whose medical, func-
55 tional and/or environmental needs can be appropriately and cost-effec-
56 tively met at home through the application of telehealth intervention.
S. 2931 4
1 Reimbursement provided [pursuant to] under this subdivision shall be for
2 services to patients with conditions or clinical circumstances associ-
3 ated with the need for frequent monitoring, [and/or] the need for
4 frequent physician, skilled nursing or acute care services, [and] where
5 the provision of telehealth services can appropriately reduce the need
6 for on-site or in-office visits or acute or long term care facility
7 admissions, or where the telehealth services appropriately allow for a
8 home care service by means of telehealth technology instead of an
9 in-person visit by the home care services agency. [Such] The conditions
10 and clinical circumstances shall include, but not be limited to, conges-
11 tive heart failure, diabetes, chronic pulmonary obstructive disease,
12 wound care, polypharmacy, mental or behavioral problems limiting self-
13 management, and technology-dependent care such as continuous oxygen,
14 ventilator care, total parenteral nutrition or enteral feeding.
15 9-a. (a) Notwithstanding any inconsistent provision of this section,
16 effective for annual periods beginning April first, two thousand twen-
17 ty-three, the commissioner shall, subject to the availability of federal
18 financial participation and upon approval of the state director of the
19 budget, further adjust medical assistance rates of payment for home care
20 services agencies and home care services, including home care services
21 provided by entities qualifying under subdivision nine of this section,
22 targeted for increased salary and benefits for home health aides,
23 personal care aides and consumer directed personal assistants, as well
24 as for recruitment, training and retention of direct care workers for
25 services in shortage areas and by shortage disciplines which may include
26 nurses, therapists, social workers, home health aides and personal care
27 aides. The commissioner shall be further authorized, upon approval of
28 the state director of the budget, to utilize state funds, as available,
29 including federal COVID-19 relief funds allocated to New York, to
30 distribute as direct funding to home care service provider entities for
31 these purposes and personnel for services to medical assistance recipi-
32 ents.
33 (b) Rate adjustments and direct payments made under this subdivision
34 may also be provided to pilot test the impact on recruitment and
35 retention of allowing funds to be used for critical supports and incen-
36 tives for direct care personnel, including transportation, education,
37 training, child day care, career ladder, peer support, and other
38 supports which the commissioner may determine.
39 (c) On or before October first, two thousand twenty-four, the commis-
40 sioner shall report to the governor and legislature on the effectiveness
41 of this section in recruitment and retention of direct care home care
42 personnel, and in addressing community need, and shall make recommenda-
43 tions for the continuation or modification of the program. The commis-
44 sioner shall seek the input of representatives of the providers, plans,
45 consumers and workers in examining and reporting on the program.
46 15. Subject to the availability of federal financial participation and
47 approval of the state director of the budget, for home care services
48 provided on and after April first, two thousand twenty-three, the
49 commissioner shall adjust Medicaid rates of payment for home care
50 service agencies to address increases in reimbursement as may be
51 required by implementation of amendments to this article and subdivision
52 eleven of section three hundred sixty-five-a of the social services law
53 made by the chapter of the laws of two thousand twenty-three that added
54 this subdivision.
S. 2931 5
1 § 6. Subdivision 8 of section 4403-f of the public health law, as
2 amended by section 21 of part B of chapter 59 of the laws of 2016, is
3 amended to read as follows:
4 8. Payment rates for managed long term care plan enrollees eligible
5 for medical assistance. The commissioner shall establish payment rates
6 for services provided to enrollees eligible under title XIX of the
7 federal social security act. Such payment rates shall be subject to
8 approval by the director of the division of the budget and shall reflect
9 savings to both state and local governments when compared to costs which
10 would be incurred by such program if enrollees were to receive compara-
11 ble health and long term care services on a fee-for-service basis in the
12 geographic region in which such services are proposed to be provided.
13 Payment rates shall be risk-adjusted to take into account the character-
14 istics of enrollees, or proposed enrollees, including, but not limited
15 to: frailty, disability level, health and functional status, age,
16 gender, the nature of services provided to such enrollees, and other
17 factors as determined by the commissioner. The risk adjusted premiums
18 may also be combined with disincentives or requirements designed to
19 mitigate any incentives to obtain higher payment categories. In setting
20 such payment rates, the commissioner shall consider costs borne by the
21 managed care program to ensure actuarially sound and adequate rates of
22 payment to ensure quality of care shall comply with all applicable laws
23 and regulations, state and federal, including [regulations as to], but
24 not limited to, those relating to wages, labor and actuarial soundness
25 [for medicaid managed care]. For premiums effective on and after April
26 first, two thousand twenty-three, the commissioner shall further consid-
27 er increases to premiums to address cost and reimbursement adjustments
28 required by the department's implementation of the amendments to article
29 thirty-six of this chapter and section three hundred sixty-five-a of the
30 social services law made by the chapter of the laws of two thousand
31 twenty-three that amended this subdivision.
32 § 7. The superintendent of financial services, in consultation with
33 the commissioner of health, and representatives of state-licensed health
34 insurers, home care service agencies and consumers (including family
35 members of consumers), labor organizations representing home care
36 service workers, and respective statewide associations or organizations,
37 shall examine the terms of coverage for home care services as specified
38 in articles 32 and 43 of the insurance law and, on or before December 1,
39 2023, report to the legislature and governor on the following:
40 a. The extent to which these coverage terms, including coverage exclu-
41 sions as well as riders that permit the purchase of expanded coverage,
42 are aligned with state of the art medical and health system practice for
43 providing in-home care;
44 b. The extent to which state incentives for purchase of home care
45 service coverage, including expanded coverage, may be cost-beneficial to
46 recipients, to the health care system, and state medical assistance
47 program specifically; and
48 c. Recommendations for modifications of articles 32 and 43 of the
49 insurance law, and such other laws, including the public health law,
50 workers' compensation law, social services law, mental hygiene law and
51 elder law, as would align the terms of home care coverage with state of
52 the art medical and health system practices.
53 § 8. This act shall take effect immediately; provided, however, that
54 the amendments to subdivision 8 of section 4403-f of the public health
55 law made by section six of this act shall be subject to the repeal of
56 such section and shall be deemed repealed therewith.