S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8091
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced  by  M.  of  A. CUSICK, FALL -- read once and referred to the
   Committee on Mental Health
 
 AN ACT to amend the mental hygiene law, in relation to reimbursement for
   residential habilitation services
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Paragraph (ii) of subdivision (c) of section 43.02 of the
 mental hygiene law, as amended by section 3 of part OO of chapter 58  of
 the  laws of 2015, is amended and a new subdivision (d) is added to read
 as follows:
   (ii) methodologies used in the establishment of the schedules of rates
 or fees pursuant to this section provided, however, that  IN  ACCORDANCE
 WITH  SUBDIVISION  (D) OF THIS SECTION, the commissioner of health shall
 adopt rules and regulations including methodologies developed by him  or
 her  for services provided by any facility or program licensed, operated
 or approved by the office for people  with  developmental  disabilities;
 provided,  however,  that such rules and regulations shall be subject to
 the approval of the office for people  with  developmental  disabilities
 and shall take into account the policies and goals of such office.
   (D)  (I)  FOR  PURPOSES OF THIS SUBDIVISION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:
   (1) "RETAINER DAYS" ARE DAYS OF MEDICAL LEAVE  OR  AN  ASSOCIATED  DAY
 WHERE  ANY OTHER INSTITUTIONAL OR IN-PATIENT MEDICAL PAYMENT IS MADE FOR
 PROVIDING RESIDENTIAL HABILITATION SERVICES TO  A  PERSON  ELIGIBLE  FOR
 MEDICAL  ASSISTANCE  PURSUANT  TO  TITLE  ELEVEN  OF ARTICLE FIVE OF THE
 SOCIAL SERVICES LAW.
   (2) "SERVICE DAYS" ARE DAYS WHEN RESIDENTIAL HABILITATION SERVICES ARE
 PROVIDED IN A COMMUNITY RESIDENCE UNDER  THE  HOME  AND  COMMUNITY-BASED
 WAIVER OPERATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
 AND  PURSUANT  TO  REGULATIONS  PROMULGATED  BY  THE COMMISSIONER OF THE
 OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES TO  A  PERSON  WHO  IS
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11356-01-1

 A. 8091                             2
 
 EITHER PRESENT IN THE COMMUNITY RESIDENCE OR IS ABSENT FROM THE COMMUNI-
 TY  RESIDENCE  AND  RESIDENTIAL  HABILITATION  SERVICES ARE PERFORMED BY
 STAFF. SUCH SERVICES SHALL  INCLUDE  HABILITATION  SERVICES,  PROTECTIVE
 OVERSIGHT  SERVICES, SUPERVISION SERVICES, NURSING SUPERVISION OF DIRECT
 CARE STAFF AND COORDINATION OF A PERSON'S HEALTH CARE NEEDS, THE COORDI-
 NATION OF NECESSARY MEDICAL APPOINTMENTS, FOLLOW-UP REPORTS FROM MEDICAL
 APPOINTMENTS, FOLLOW-UP AND  INTERFACE  WITH  HOSPITAL  STAFF  REGARDING
 EMERGENCY  ROOM VISITS AND OTHER HOSPITALIZATIONS, SERVICES AND SUPPLIES
 RELATED TO PROGRAM-RELATED TRANSPORTATION, NUTRITION  SERVICES  DIRECTLY
 RELATED  TO HABILITATION SERVICES AND PSYCHOLOGY SERVICES THAT SUPPORT A
 PERSON'S NEED FOR BEHAVIORAL SUPPORTS IN A SERVICE SETTING.
   (3) "THERAPY DAYS" ARE DAYS WHEN A PERSON ELIGIBLE FOR MEDICAL ASSIST-
 ANCE PURSUANT TO TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW
 IS AWAY FROM A SUPERVISED  COMMUNITY  RESIDENCE  AND  IS  NOT  OTHERWISE
 RECEIVING  SERVICES  FROM  PAID  RESIDENTIAL  HABILITATION STAFF AND THE
 ABSENCE IS FOR THE PURPOSE OF VISITING WITH  FAMILY  OR  FRIENDS,  OR  A
 VACATION. THE THERAPY DAY MUST BE DESCRIBED IN THE PERSON'S PLAN OF CARE
 TO  BE ELIGIBLE FOR PAYMENT AND THE PERSON MAY NOT RECEIVE ANOTHER MEDI-
 CAID-FUNDED RESIDENTIAL OR IN-PATIENT SERVICE ON THAT DAY.
   (4) "OCCUPANCY ADJUSTMENT" IS AN ADJUSTMENT TO  THE  CALCULATED  DAILY
 RATE  OF AN AGENCY WHICH PROVIDES RESIDENTIAL HABILITATION SERVICES IN A
 SUPERVISED COMMUNITY RESIDENCE TO ACCOUNT FOR VACANCY DAYS.
   (5) "VACANCY DAYS" ARE DAYS FOR WHICH THE PROVIDER IS UNABLE  TO  BILL
 FOR  MEDICAID  DUE  TO A PERSON RESIDING IN A COMMUNITY RESIDENCE HAVING
 MOVED FROM ONE RESIDENTIAL SITE TO ANOTHER, OR DUE TO THE DEATH  OF  THE
 INDIVIDUAL.
   (II)  NOTWITHSTANDING  ANY  INCONSISTENT PROVISION OF THIS SECTION, OR
 ANY OTHER LAW OR REGULATION TO THE CONTRARY AND SUBJECT  TO  THE  AVAIL-
 ABILITY  OF  FEDERAL  FINANCIAL PARTICIPATION, FOR ANY REIMBURSEMENT FOR
 RESIDENTIAL HABILITATION SERVICES PROVIDED  IN  A  SUPERVISED  COMMUNITY
 RESIDENCE  ACCORDING  TO  A  DAILY UNIT OF SERVICE AS PROMULGATED BY THE
 COMMISSIONER OF HEALTH:
   (1) RETAINER DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE AS DETERMINED PURSUANT TO REGULATIONS PROMULGATED  BY  THE  COMMIS-
 SIONER  OF HEALTH, PROVIDED, HOWEVER A PROVIDER IS LIMITED TO BEING PAID
 FOURTEEN RETAINER DAYS PER RATE YEAR, MULTIPLIED BY CERTIFIED CAPACITY;
   (2) THERAPY DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE  DAILY
 RATE  AS  DETERMINED  PURSUANT TO REGULATIONS PROMULGATED BY THE COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER, A PROVIDER IS LIMITED TO BEING PAID
 NINETY-SIX THERAPY DAYS PER RATE YEAR PER PERSON; AND
   (3) FOR THE RATE PERIODS BEGINNING JULY FIRST, TWO THOUSAND  NINETEEN,
 PROVIDERS  SHALL RECEIVE AN OCCUPANCY ADJUSTMENT TO THE OPERATING COMPO-
 NENT OF THEIR RATE, AS THE OPERATING COMPONENT OF THEIR RATE  IS  DETER-
 MINED PURSUANT TO REGULATIONS PROMULGATED BY THE COMMISSIONER OF HEALTH,
 FOR  VACANCY  DAYS.  THE OCCUPANCY ADJUSTMENT PERCENTAGE SHALL BE CALCU-
 LATED BY DIVIDING THE SUM OF A PROVIDER'S RATE PERIOD REPORTED  RETAINER
 DAYS,  SERVICE  DAYS  AND  THERAPY  DAYS  BY  ONE HUNDRED PERCENT OF THE
 PROVIDER'S CERTIFIED CAPACITY. THE CERTIFIED CAPACITY OF THE PROVIDER IS
 CALCULATED BY TAKING INTO ACCOUNT CAPACITY CHANGES THROUGHOUT THE  YEAR,
 MULTIPLIED  BY  ONE  HUNDRED  PERCENT OF THE YEAR'S DAYS. THE ADJUSTMENT
 WILL BEGIN ON JULY FIRST, TWO THOUSAND NINETEEN AND  SHALL  BE  RECALCU-
 LATED  ON  AN ANNUAL BASIS BASED ON THE MOST CURRENT AND COMPLETE TWELVE
 MONTHS OF EXPERIENCE.  THE OCCUPANCY ADJUSTMENT WILL BE THE LOWER OF THE
 PROVIDER'S ACTUAL OCCUPANCY ADJUSTMENT PERCENTAGE OR FIVE PERCENT.
   § 2. This act shall take effect immediately and  shall  be  deemed  to
 have been in full force and effect on and after April 1, 2021.