S T A T E O F N E W Y O R K
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3913
2019-2020 Regular Sessions
I N A S S E M B L Y
January 31, 2019
___________
Introduced by M. of A. HYNDMAN -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to a moratorium on
new licensed home care service agency approvals; and to amend chapter
57 of the laws of 2018 amending the public health law and other laws
relating to limitations on licensed home care service agency contracts
and registration of licensed home care services agencies, in relation
to the moratorium on the processing and approval of applications seek-
ing licensure of a licensed home care services agency
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. The legislature hereby finds and
declares that local small business are the very lifeblood and economic
building blocks of the empire state. These businesses are important to
every community throughout our state: they hire locally, they spend
resources locally, they pay state and local taxes and they offer essen-
tial services that improve the quality of life of individuals at the
local level. Without such local small businesses, our economy would not
be able to function in a manner that benefits all our residents and
reaches them in a very direct and personal way. A quintessential and
leading example of the type of local, small business that provides life-
changing services can be found in the form of licensed home care service
agencies (LHCSAs). LHCSAs are a vital and essential component of our
health care delivery system, interacting with patients on a daily basis,
attending to their needs and standing on the very frontline of quality
care. Furthermore, LHCSAs are very often small, local businesses started
by compassionate social entrepreneurs who saw a need in their community
and who have succeeded because of the very personal, trusting, compas-
sionate and nurturing relationship they have with the individuals under
their care. Additionally, the range of services provided by LHCSAs,
including language and cultural competency, is unique and valuable, to
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03030-01-9
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them, to the employees they hire and to our overall community and health
care system. The need for home care services for our senior population
is rising exponentially and local, small business LHCSAs have rationally
grown to meet this demand and provide skillful care for our loved ones.
Moreover, LHCSAs often save the state money because they allow individ-
uals to remain at home, instead of moving to institutionalized care.
However, puzzlingly, the department of health constantly seems focused
on threatening LHCSAs ability to operate, as exemplified by a two year
moratorium enacted in 2008 and a series of potentially catastrophic
provisions enacted as part of the 2018-19 New York state budget, includ-
ing: another two year moratorium on new LHCSA approvals; the
construction of a limit on the number of LHCSAs with which managed long
term care plans (MLTCP) can contract; and authorization of a forward-
looking requirement that could be enacted in the future, post the two
year moratorium, that will mandate that LHCSA applicants need to demon-
strate "public need" and "financial feasibility" to receive approval. In
sum, these changes have simply gone too far in terms of overregulating
local small businesses that are trying to provide quality of life health
services to some of our most needy and vulnerable citizens. The new
changes threaten the very social and economic existence of the locally
centered LHCSAs that generations of New Yorkers have come to count on,
letting them into their homes in times of trial and perseverance. In
hindsight, the recently enacted provisions have proven to be overreach-
ing, unwise and onerous, and consequently must be modified.
§ 2. Subparagraphs (i), (ii), (iii), (v) and (x) of paragraph (j) of
subdivision 7 of section 4403-f of the public health law, as added by
section 9-a of part B of chapter 57 of the laws of 2018, are amended to
read as follows:
(i) The commissioner may establish methodologies to limit the number
of licensed home care services agencies licensed pursuant to article
thirty-six of [the public health law] THIS CHAPTER with which managed
long term care plans may enter into contracts, provided that such limi-
tations are consistent with the specifications set forth in this para-
graph. HOWEVER, BEFORE IMPLEMENTING ANY SUCH METHODOLOGICAL LIMITATIONS,
THE DEPARTMENT MUST HOLD A MINIMUM OF SIX PUBLIC HEARINGS INCLUDING AT
LEAST ONE IN EACH OF THE FOLLOWING REGIONS: THE CITY OF NEW YORK, LONG
ISLAND, WESTCHESTER COUNTY, THE CAPITAL REGION, CENTRAL NEW YORK AND
WESTERN NEW YORK TO HEAR FROM INTERESTED PARTIES THAT MAY BE AFFECTED BY
ANY PROPOSED METHODOLOGIES. THE DEPARTMENT SHALL WIDELY PUBLICIZE SUCH
HEARINGS ONCE SCHEDULED, AND MUST SEND NOTICE OF SUCH HEARINGS TO ALL
LICENSED HOME CARE SERVICES AGENCIES AT LEAST TWO WEEKS IN ADVANCE OF
EACH HEARING. THE HEARINGS MUST BE OFFICIALLY TRANSCRIBED AND WRITTEN
TESTIMONY AND COMMENTS MUST BE PERMITTED BOTH IN PERSON AND VIA MAIL AND
ELECTRONIC MEANS. THE DEPARTMENT SHALL FORMALLY TAKE INTO ACCOUNT THE
PUBLIC HEARING COMMENTS AND WRITTEN TESTIMONY BEFORE PROMULGATING ANY
FINAL METHODOLOGIES.
(ii) Managed long term care plans operating in the city of New York
and/or the counties of Nassau, Suffolk, and Westchester may enter into
contracts with licensed home care services agencies in such region in a
maximum number calculated based upon the following methodology:
(A) As of October first, two thousand [eighteen] TWENTY-ONE, one
contract per seventy-five members enrolled in the plan within such
region; and
(B) As of October first, two thousand [nineteen] TWENTY-TWO, one
contract per one hundred members enrolled in the plan within such
region.
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(iii) Managed long term care plans operating in counties other than
those in the city of New York and the counties of Nassau, Suffolk, and
Westchester may enter into contracts with licensed home care services
agencies in such region in a maximum number calculated based upon the
following methodology:
(A) As of October first, two thousand [eighteen] TWENTY-ONE, one
contract per forty-five members enrolled in the plan within such region.
(B) As of October first, two thousand [nineteen] TWENTY-TWO, one
contract per sixty members enrolled in the plan within such region.
(v) When calculating the number of additional contracts that a managed
long term care plan may enter using the methodologies established pursu-
ant to this paragraph, any fractional result shall be rounded [down] UP.
(x) This subparagraph applies where implementation of the limits on
contracts with licensed home care service agencies of this paragraph (i)
would otherwise require an enrollee's care to be transferred from the
enrollee's current licensed home care service agency to another licensed
care service agency, and (ii) the enrollee (or the enrollee's authorized
representative) wants the enrollee to continue to be cared for by one or
more employees of the current licensed home care service agency, and
that continuation would otherwise be provided. In such a case: the
enrollee's managed long term care plan may contract with the enrollee's
current licensed home care service agency for the purpose of continuing
the enrollee's care by such employee or employees, and the contract
shall not count towards the limits on contracts under this paragraph for
a period of [three months] ONE YEAR.
§ 3. Subdivisions 4 and 6 of section 3605 of the public health law, as
amended by section 9-b of part B of chapter 57 of the laws of 2018, are
amended to read as follows:
4. The public health and health planning council shall not approve an
application for licensure unless it is satisfied as to[: (a) the public
need for the existence of the licensed home health care service agency
at the time and place and under the circumstances proposed; (b)] the
character, competence and standing in the community of the applicant's
incorporators, directors, sponsors, stockholders or operators[; (c) the
financial resources of the proposed licensed home health care service
agency and its sources of financial revenues; and (d) such other matters
as it shall deem pertinent].
6. Neither PUBLIC NEED, tax status nor profit-making status shall be
criteria for licensure.
§ 4. Section 3605-b of the public health law, as added by section 9-d
of part B of chapter 57 of the laws of 2018, is amended to read as
follows:
§ 3605-b. Registration of licensed home care services agencies. 1.
[(a)] Notwithstanding any provision of law to the contrary, no licensed
home care services agency (LHCSA) licensed pursuant to section thirty-
six hundred five of this article shall be operated, provide nursing
services, home health aide services, or personal care services, or
receive reimbursement from any source for the provision of such services
during any period of time on or after January first, two thousand [nine-
teen] TWENTY-ONE, unless it has registered with the commissioner in a
manner prescribed by the department.
[(b)] 2. A LHCSA that fails to submit a complete and accurate set of
all required registration materials by the deadline established by the
commissioner [shall] MAY be required to pay a fee of [five] ONE hundred
dollars for each FULL month [or part thereof] that the LHCSA is in
default. A LHCSA that failed to register in the prior year by the dead-
A. 3913 4
line of the current year shall not be permitted to register for the
upcoming registration period unless it submits any unpaid late fees.
[(c)] 3. The department shall post on its public website a list of all
LHCSAs, which shall indicate the current registration status of each
LHCSA.
[(d)] 4. The department shall institute proceedings to revoke the
license of any LHCSA that fails to register for [two] THREE CONSECUTIVE
annual registration periods[, whether or not such periods are consec-
utive. The department shall have the discretion to pursue revocation of
the license of a LHCSA on grounds that it evidences a pattern of late
registration over the course of multiple years].
§ 5. Section 9-e of part B of chapter 57 of the laws of 2018 amending
the public health law and other laws relating to limitations on licensed
home care service agency contracts and registration of licensed home
care services agencies is amended to read as follows:
§ 9-e. Effective April 1, [2018] 2021, the commissioner of health
shall place a moratorium on the processing and approval of applications
seeking licensure of a licensed home care services agency pursuant to
section 3605 of the public health law that have not received establish-
ment approval or contingent establishment approval by the public health
and health planning council, except for: (a) an application seeking
licensure of a licensed home care services agency that is submitted with
an application for approval as an assisted living program authorized
pursuant to section 461-l of the social services law; (b) an application
seeking approval to transfer ownership for an existing licensed home
care services agency that has been licensed and operating for a minimum
of five years for the purpose of consolidating ownership of two or more
licensed home care services agencies; and (c) an application seeking
licensure of a home care services agency where the applicant demon-
strates to the satisfaction of the commissioner of health that
submission of the application to the public health and health planning
council for consideration would be appropriate on grounds that the
application addresses a serious concern such as a lack of access to home
care services in the geographic area or a lack of adequate and appropri-
ate care, language and cultural competence, or special needs services.
Such moratorium shall expire on March 31, [2020] 2023. In implementing
the provisions of this section, the commissioner shall, to the extent
practicable, review and, where appropriate, prioritize presentation to
the public health and health planning council of complete applications
under paragraph (b) of this section where the applicants demonstrate, to
the satisfaction of the commissioner, that the proposed change in owner-
ship is consistent with the goals of paragraph (j) of subdivision 7 of
section 4403-f of the public health law.
§ 6. This act shall take effect immediately; provided, however, that
the amendments to section 4403-f of the public health law made by
section two of this act shall not affect the repeal of such section
pursuant to chapter 659 of the laws of 1997, as amended, and shall be
deemed repealed therewith; provided, further, that section three of this
act shall take effect on the same date and in the same manner as section
9-b of part B of chapter 57 of the laws of 2018, takes effect.