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SECTION 3614
Payments for certified home health agency services, long term home health care programs and AIDS home care programs
Public Health (PBH) CHAPTER 45, ARTICLE 36
§ 3614. Payments for certified home health agency services, long term
home health care programs and AIDS home care programs. 1. No government
agency shall purchase, pay for or make reimbursement or grants-in-aid
for services provided by a home care services agency, a provider of a
long term home health care program or a provider of an AIDS home care
program unless, at the time the services were provided, the home care
services agency possessed a valid certificate of approval or the
provider of a long term home health care program or AIDS home care
program had been authorized by the commissioner to provide such program.
However, contractual arrangements between a certified home health
agency, provider of a long term home health care program, provider of an
AIDS home care program, or government agency and any home care services
agency shall not be prohibited, provided that the certified home health
agency, provider of a long term home health care program, provider of an
AIDS home care program, or government agency maintains full
responsibility for the plan of treatment and the care rendered.

2. Payments for certified home health agency services or services
provided by long term home health care programs or AIDS home care
programs made by government agencies shall be at rates approved by the
state director of the budget. No provider of a long term home health
care program or AIDS home care program shall establish charges for such
program in excess of those established pursuant to the provisions of
this section and rules and regulations adopted pursuant to section
thirty-six hundred twelve of this article or subchapter XVIII of the
federal Social Security Act (Medicare).

2-a. Notwithstanding any contrary law, rule or regulation, for rate
periods on and after April first, two thousand eleven, Medicaid rates of
payments for services provided by certified home health agencies, by
long term home health care programs or by an AIDS home care program
shall not reflect a separate payment for home care nursing services
provided to patients diagnosed with Acquired Immune Deficiency Syndrome
(AIDS).

3. Prior to the approval of such rates, the commissioner shall
determine and certify to the state director of the budget that the
proposed rate schedules for payments for certified home health agency
services or services provided by long term home health care programs or
AIDS home care programs are reasonably related to the costs of the
efficient production of such services. In making such certification, the
commissioner shall take into consideration the elements of cost,
geographical differentials in the elements of cost considered, economic
factors in the area in which the certified home health agency, provider
of a long term home health care program or provider of an AIDS home care
program is located, costs of certified home health agencies, providers
of long term home health care programs or providers of AIDS home care
programs of comparable size, and the need for incentives to improve
services and institute economies.

3-a. Medically fragile children. Rates of payment for continuous
nursing services for medically fragile children provided by a certified
home health agency, a licensed home care services agency or a long term
home health care program shall be established to ensure the availability
of such services, whether provided by registered nurses or licensed
practical nurses who are employed by or under contract with such
agencies or programs, and shall be established at a rate that is at
least equal to rates of payment for such services rendered to patients
eligible for AIDS home care programs; provided, however, that a
certified home health agency, a licensed home care services agency or a
long term home health care program that receives such enhanced rates for
continuous nursing services for medically fragile children shall use
such enhanced rates to increase payments to registered nurses and
licensed practical nurses who provide such services. In the case of
services provided by certified home health agencies and long term home
health care programs through contracts with licensed home care services
agencies, rate increases received by such certified home health agencies
and long term home health care programs pursuant to this subdivision
shall be reflected in payments made to the registered nurses or licensed
practical nurses employed by such licensed home care services agencies
to render services to these children. 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 in a non-institutional setting as
compared to an institutional setting. For the purposes of this
subdivision, a medically fragile child shall mean a child who is at risk
of hospitalization or institutionalization, including but not limited to
children who are technologically-dependent for life or health-sustaining
functions, require complex medication regimen or medical interventions
to maintain or to improve their health status or are in need of ongoing
assessment or intervention to prevent serious deterioration of their
health status or medical complications that place their life, health or
development at risk, but who are capable of being cared for at home if
provided with appropriate home care services, including but not limited
to case management services and continuous nursing services. The
commissioner shall promulgate regulations to implement provisions of
this subdivision and may also direct the providers specified in this
subdivision to provide such additional information and in such form as
the commissioner shall determine is reasonably necessary to implement
the provisions of this subdivision.

3-c. Home telehealth. (a) Demonstration rates of payment or fees shall
be established for telehealth services provided by a certified home
health agency, a long term home health care program or AIDS home care
program, or for telehealth services by a licensed home care services
agency under contract with such an agency or program, in order to ensure
the availability of technology-based patient monitoring, communication
and health management. Reimbursement for telehealth services provided
pursuant to this section shall be provided only in connection with
Federal Food and Drug Administration-approved and interoperable devices,
and incorporated as part of the patient's plan of care. The commissioner
shall seek federal financial participation with regard to this
demonstration initiative.

(b) The purposes of such services shall be to assist in the effective
monitoring and management of patients whose medical, functional and/or
environmental needs can be appropriately and cost-effectively met at
home through the application of telehealth intervention. Reimbursement
provided pursuant to this subdivision shall be for services to patients
with conditions or clinical circumstances associated with the need for
frequent monitoring, and/or the need for frequent physician, skilled
nursing or acute care services, and where the provision of telehealth
services can appropriately reduce the need for on-site or in-office
visits or acute or long term care facility admissions. Such conditions
and clinical circumstances shall include, but not be limited to,
congestive heart failure, diabetes, chronic pulmonary obstructive
disease, wound care, polypharmacy, mental or behavioral problems
limiting self-management, and technology-dependent care such as
continuous oxygen, ventilator care, total parenteral nutrition or
enteral feeding.

(c) Demonstration rates or fees established by the commissioner and
approved by the director of the budget, for such telehealth services
shall reflect telehealth services costs on a monthly basis in order to
account for daily variation in the intensity and complexity of patients'
telehealth service needs; provided that such demonstration rates shall
further reflect the cost of the daily operation and provision of such
services, which costs shall include the following functions undertaken
by the participating certified home health agency, long term home health
care program, AIDS home care program or licensed home care services
agency:

(i) Monitoring of patient vital signs;

(ii) Patient education;

(iii) Medication management;

(iv) Equipment maintenance;

(v) Review of patient trends and/or other changes in patient condition
necessitating professional intervention; and

(vi) Such other activities as the commissioner may deem necessary and
appropriate to this section.

(d) The commissioner shall take such additional steps as may be
reasonably necessary to implement the provision of this subdivision;
provided however that the commissioner shall establish initial
demonstration rates or fees for telehealth services as provided for in
this subdivision by no later than October first, two thousand seven; and
provided, further, however, that the commissioner shall seek the input
of representatives from participating providers and other interested
parties in the development of such rates or fees and any applicable
requirements established pursuant to this subdivision.

(e) The commissioner shall, within monies appropriated therefor,
establish a rural home telehealth delivery demonstration study program
in counties having a population of not less than one hundred thirty
thousand and not more than one hundred forty thousand, according to the
two thousand ten decennial federal census. The commissioner shall direct
a home health organization serving in such county to study patients
receiving telehealth services, pursuant to this subdivision, who have
been diagnosed with congestive heart failure, diabetes and/or chronic
pulmonary obstructive disease, and whose medical, functional and/or
environmental needs are appropriately met at home through the
application of telehealth services interventions. Such a study shall
determine the cost of providing telehealth services, the quality of care
provided through telehealth services and the outcomes of patients
receiving such telehealth services. The commissioner shall reimburse the
home health organization for conducting the study with amounts
appropriated under this subdivision. The home health organization shall
evaluate the findings of the study and report to the governor, the
temporary president of the senate, the speaker of the assembly, the
commissioner, and the chair of the legislative commission on rural
resources on its findings of providing telehealth services for each
condition, so as to provide the cost benchmarks with and without
telehealth care, as well as providing cost benefit measurements in terms
of the quality benefit outcomes for each of the conditions addressed via
telehealth.

4. The commissioner shall notify each certified home health agency,
long term home health care program and AIDS home care program of its
approved rates of payment which shall be used in reimbursing for
services provided to persons eligible for payments made by state
governmental agencies at least thirty days prior to the beginning of an
established rate period for which the rate is to become effective. Such
notification shall be made only after approval of rate schedules by the
state director of the budget.

* 5. (a) During the period July first, nineteen hundred ninety through
December thirty-first, nineteen hundred ninety, the period January
first, nineteen hundred ninety-one through December thirty-first,
nineteen hundred ninety-one and for each calendar year period commencing
on January first thereafter, rates of payment by governmental agencies
established in accordance with subdivision three of this section
applicable for services provided by certified home health agencies to
individuals eligible for medical assistance pursuant to title eleven of
article five of the social services law for certified home health
agencies which can demonstrate, on forms provided by the commissioner,
losses from a disproportionate share of bad debt and charity care during
the base year period as used in determining such rates may include an
allowance determined in accordance with this subdivision to reflect the
needs of the certified home health agency for the financing of losses
resulting from bad debt and the cost of charity care. Losses resulting
from bad debt and the delivery of charity care shall be determined by
the commissioner considering, but not limited to, such factors as the
losses resulting from bad debt and the costs of charity care provided by
the certified home health agency and the availability of other financial
support, including state local assistance public health aid, to meet the
losses resulting from bad debt and the costs of charity care of the
certified home health agency. The bad debt and charity care allowance
for a certified home health agency for a rate period shall be determined
by the commissioner in accordance with rules and regulations adopted by
the state hospital review and planning council and approved by the
commissioner, and shall be consistent with the purposes for which such
allowances are authorized for general hospitals pursuant to the
provisions of article twenty-eight of this chapter and rules and
regulations promulgated by the commissioner. For purposes of
distribution of bad debt and charity care allowances to eligible
certified home health agencies, the commissioner, in accordance with
rules and regulations adopted by the state hospital review and planning
council and approved by the commissioner, may limit application of a bad
debt and charity care allowance to a particular home care services unit
or units of service, such as nursing service. A certified home health
agency applying for a bad debt and charity care allowance pursuant to
this subdivision shall provide assurances satisfactory to the
commissioner that it shall undertake reasonable efforts to maintain
financial support from community and public funding sources and
reasonable efforts to collect payments for services from third party
insurance payors, governmental payors and self-paying patients. To be
eligible for an allowance pursuant to this subdivision, a certified home
health agency shall: have professional assistance available on a seven
day per week, twenty-four hour per day basis to all registered clients;
demonstrate compliance with minimum charity care certification
obligation levels established pursuant to rules and regulations adopted
by the state hospital review and planning council and approved by the
commissioner; and provide to the commissioner and maintain a community
service plan which outlines the agency's organizational mission and
commitment to meet the home care needs of the community, in accordance
with paragraph (h) of this subdivision.

(b) The total amount of funds to be allocated and distributed for bad
debt and charity care allowances to eligible certified home health
agencies for a rate period in accordance with this subdivision shall be
limited to an annual aggregate amount of six million two hundred fifty
thousand dollars; provided, however, that the amount of funds allocated
for distribution to eligible publicly sponsored certified home health
agencies for bad debt and charity care allowances shall not exceed
thirty-five percent of total available funds for all eligible certified
home health agencies for bad debt and charity care allowances. In
establishing an apportionment of available funds to publicly sponsored
certified home health agencies in accordance with this paragraph, the
commissioner shall promulgate regulations which may include, but not be
limited to, such factors as the ratio of public to nonpublic base year
period bad debt and charity care provided by eligible certified home
health agencies and differences in costs for delivering such services.
Certified home health agencies provided by general hospitals shall not
be eligible for any portion of the allocation pursuant to this paragraph
for the period of July first, nineteen hundred ninety through December
thirty-first, nineteen hundred ninety-four, or for such longer period if
extended by law, based on the projected availability of an equitable
level of bad debt and charity care coverage for such agencies provided
pursuant to chapter two of the laws of nineteen hundred eighty-eight and
any future amendments thereto.

(c) No certified home health agency may receive a bad debt and charity
care allowance in accordance with this subdivision in an amount which
exceeds its need for the financing of losses associated with the
delivery of bad debt and charity care.

(d) A nominal payment amount for the financing of losses associated
with the delivery of bad debt and charity care will be established for
each eligible certified home health agency. The nominal payment amount
shall be calculated as the sum of the dollars attributable to the
application of an incrementally increasing nominal coverage percentage
of base year period losses associated with the delivery of bad debt and
charity care for percentage increases in the relationship between base
year period losses associated with the delivery of bad debt and charity
care and base year period total operating costs according to the
following scale:
% of bad debt and charity care losses to nominal percentage of

total operating cost loss coverage

Up to 3% 50%

3 - 6% 75%

6% + 100%
If the sum of the nominal payment amounts for all eligible voluntary
non-profit and private proprietary certified home health agencies or for
all eligible public certified home health agencies is less than the
amount allocated for bad debt and charity care allowances pursuant to
paragraph (b) of this subdivision for such certified home health
agencies respectively, the nominal coverage percentages of base year
period losses associated with the delivery of bad debt and charity care
pursuant to this scale may be increased to not more than one hundred
percent for voluntary non-profit and private proprietary certified home
health agencies or for public certified home health agencies in
accordance with rules and regulations adopted by the state hospital
review and planning council and approved by the commissioner.

(e) The bad debt and charity care allowance for each eligible
voluntary non-profit and private proprietary certified home health
agency shall be based on the dollar value of the result of the ratio of
total funds allocated for bad debt and charity care allowances for
certified home health agencies pursuant to paragraph (b) of this
subdivision to the total statewide nominal payment amounts for all
eligible certified home health agencies determined in accordance with
paragraph (d) of this subdivision applied to the nominal payment amount
for each such certified home health agency.

(f) The bad debt and charity care allowance for each eligible public
certified home health agency shall be based on the dollar value of the
result of the ratio of total funds allocated for bad debt and charity
care allowances for public certified home health agencies pursuant to
paragraph (b) of this subdivision to the total statewide nominal payment
amounts for all eligible public certified home health agencies
determined in accordance with paragraph (d) of this subdivision applied
to the nominal payment amount for each such certified home health
agency.

(g) Certified home health agencies shall furnish to the department
such reports and information as may be required by the commissioner to
assess the cost, quality, access to, effectiveness and efficiency of bad
debt and charity care provided. The state hospital review and planning
council shall adopt rules and regulations, subject to the approval of
the commissioner, to establish uniform reporting and accounting
principles designed to enable certified home health agencies to fairly
and accurately determine and report the costs of bad debt and charity
care. In order to be eligible for an allowance pursuant to this
subdivision, a certified home health agency must be in compliance with
bad debt and charity care reporting requirements.

(h) Community service plans. (i) The governing body of a certified
home health agency shall issue an organizational mission statement
identifying at a minimum the populations and communities served by the
agency and the agency's commitment to meeting the home care needs of the
community. The commissioner shall take into consideration the
limitations of agency size and resources, and allow flexibility in
complying with the provisions of this section.

(ii) The governing body of the certified home health agency shall at
least once every three years:

(A) review and amend as necessary the agency's mission statement;

(B) solicit the views of the communities served by the agency on such
issues as the agency's performance and service priorities;

(C) demonstrate the agency's operational and financial commitment to
meeting community home care needs, to provide charity care service and
to improve access to home care services by the underserved; and

(D) prepare and make available to the public a statement showing the
provision of free, reduced charge and/or other services of a charitable
or community nature.

(iii) The governing body of the certified home health agency shall
annually make available to the public a review of the agency's
performance in meeting the home care needs of the community, providing
charity care services, and improving access to home care services by the
underserved.

(iv) The governing body of the certified home health agency shall file
with the commissioner its mission statement, its annual performance
review, and at least every three years a report detailing amendments to
the statement reflecting changes in the agency's operational and
financial commitment to meeting the home care needs of the community,
providing charity care services, and improving access to home care
services by the underserved.

(v) The commissioner shall promulgate regulations establishing a
revised percentage for the charity care requirement.

(i) This subdivision shall be effective if, and as long as, federal
financial participation is available for expenditures made for
beneficiaries eligible for medical assistance under title XIX of the
federal social security act based upon the allowances determined in
accordance with this subdivision.

* NB Expires June 30, 2023

6. (a) The commissioner shall, subject to the approval of the state
director of the budget, establish capitated rates of payment for
services provided by assisted living programs as defined by paragraph
(a) of subdivision one of section four hundred sixty-one-l of the social
services law. Such rates of payment shall be related to costs incurred
by residential health care facilities. The rates shall reflect the wage
equalization factor established by the commissioner for residential
health care facilities in the region in which the assisted living
program is provided and real property capital construction costs
associated with the construction of a free-standing assisted living
program such rate shall include a payment equal to the cost of interest
owed and depreciation costs of such construction. The rates shall also
reflect the efficient provision of a quality and quantity of services to
patients in such residential health care facilities, with needs
comparable to the needs of residents served in such assisted living
programs. Such rates of payment shall be equal to fifty percent of the
amounts which otherwise would have been expended, based upon the mean
prices for the first of July, nineteen hundred ninety-two (utilizing
nineteen hundred eighty-three costs) for freestanding, low intensity
residential health care facilities with less than three hundred beds,
and for years subsequent to nineteen hundred ninety-two, adjusted for
inflation in accordance with the provisions of subdivision ten of
section twenty-eight hundred seven-c of this chapter, to provide the
appropriate level of care for such residents in residential health care
facilities in the applicable wage equalization factor regions plus an
amount equal to capital construction costs associated with the
construction of an assisted living program facility as provided for in
this subdivision. The commissioner shall also promulgate regulations,
and may promulgate emergency regulations, to provide for reimbursement
of the cost of preadmission assessments conducted directly by assisted
living programs.

(b) For purposes of this subdivision, real property capital
construction costs shall only be included in rates of payment for
assisted living programs if: the facility houses exclusively assisted
living program beds authorized pursuant to paragraph (j) of subdivision
three of section four hundred sixty-one-l of the social services law or
(i) the facility is operated by a not-for-profit corporation; (ii) the
facility commenced operation after nineteen hundred ninety-eight and at
least ninety-five percent of the certified approved beds are provided to
residents who are subject to the assisted living program; and (iii) the
assisted living program is in a county with a population of no less than
two hundred eighty thousand persons. The methodology used to calculate
the rate for such capital construction costs shall be the same
methodology used to calculate the capital construction costs at
residential health care facilities for such costs, provided that the
commissioner may adopt rules and regulations which establish a cap on
real property capital construction costs for those facilities that house
exclusively assisted living program beds authorized pursuant to
paragraph (j) of subdivision three of section four hundred sixty-one-l
of the social services law.

(c) The department shall conduct a study of the use of resident data
collected from a uniform assessment tool identified by the commissioner
with respect to its effectiveness in evaluation and adjusting rates of
payment for assisted living programs. On or before July thirty-first,
two thousand eleven, the commissioner shall provide the governor, the
speaker of the assembly, the temporary president of the senate, and the
chairpersons of the assembly and senate health committees with a report
setting forth the conclusions of such study.

7. * Notwithstanding any inconsistent provision of law or regulation,
for purposes of establishing rates of payment by governmental agencies
for certified home health agencies for the period April first, nineteen
hundred ninety-five through December thirty-first, nineteen hundred
ninety-five and for rate periods beginning on or after January first,
nineteen hundred ninety-six, the reimbursable base year administrative
and general costs of a provider of services shall not exceed the
statewide average of total reimbursable base year administrative and
general costs of such providers of services. The amount of such
reduction in certified home health agency rates of payments made during
the period April first, nineteen hundred ninety-five through March
thirty-first, nineteen hundred ninety-six shall be adjusted in the
nineteen hundred ninety-six rate period on a pro-rata basis, if it is
determined upon post-audit review by June fifteenth, nineteen hundred
ninety-six and reconciliation that the savings for the state share,
excluding the federal and local government shares, of medical assistance
payments pursuant to title eleven of article five of the social services
law based on the limitation of such payment pursuant to this subdivision
is in excess of one million five hundred thousand dollars or is less
than one million five hundred thousand dollars for payments made on or
before March thirty-first, nineteen hundred ninety-six to reflect the
amount by which such savings are in excess of or lower than one million
five hundred thousand dollars. For rate periods on and after January
first, two thousand five through December thirty-first, two thousand
six, there shall be no such reconciliation of the amount of savings in
excess of or lower than one million five hundred thousand dollars.

* NB Effective until March 31, 2023

* Notwithstanding any inconsistent provision of law or regulation to
the contrary, for purposes of establishing rates of payment by
governmental agencies for certified home health agencies and long term
home health care programs for rate period beginning on or after January
first, nineteen hundred ninety-five, the department of health may not by
rule or regulation limit the reimbursable base year administrative and
general costs of a provider of services to a percentage which is other
than thirty percent of total reimbursable base year operational costs of
such provider of services.

* NB Effective March 31, 2023

No such limit shall be applied to a provider of services reimbursed on
an initial budget basis, or a new provider, excluding changes in
ownership or changes in name, who begins operations in the year prior to
the year which is used as a base year in determining rates of payment.

For the purposes of this subdivision, reimbursable base year
operational costs shall mean those base year operational costs remaining
after application of all other efficiency standards, including, but not
limited to, peer group cost ceilings or guidelines.

The limitation on reimbursement for provider administrative and
general expenses provided by this subdivision shall be expressed as a
percentage reduction for the rate promulgated by the commissioner to
each certified home health agency and long term home health care program
provider.

7-a. Notwithstanding any inconsistent provision of law or regulation,
for the purposes of establishing rates of payment by governmental
agencies for long term home health care programs for the period April
first, two thousand five, through December thirty-first, two thousand
five, and for the period January first, two thousand six through March
thirty-first, two thousand seven, and on and after April first, two
thousand seven through March thirty-first, two thousand nine, and on and
after April first, two thousand nine through March thirty-first, two
thousand eleven, and on and after April first, two thousand eleven
through March thirty-first, two thousand thirteen and on and after April
first, two thousand thirteen through March thirty-first, two thousand
fifteen, and on and after April 1st, two thousand fifteen through March
thirty-first, two thousand seventeen the reimbursable base year
administrative and general costs of a provider of services shall not
exceed the statewide average of total reimbursable base year
administrative and general costs of such providers of services.

No such limit shall be applied to a provider of services reimbursed on
an initial budget basis, or a new provider, excluding changes in
ownership or changes in name, who begins operations in the year prior to
the year which is used as a base year in determining rates of payment.

For the purposes of this subdivision, reimbursable base year
operational costs shall mean those base year operational costs remaining
after application of all other efficiency standards, including, but not
limited to, cost guidelines.

The limitation on reimbursement for provider administrative and
general expenses provided by this subdivision shall be expressed as a
percentage reduction for the rate promulgated by the commissioner to
each long term home health care program provider.

8. (a) Notwithstanding any inconsistent provision of law, rule or
regulation and subject to the provisions of paragraph (b) of this
subdivision and to the availability of federal financial participation,
the commissioner shall adjust medical assistance rates of payment for
services provided by certified home health agencies for such services
provided to children under eighteen years of age and for services
provided to a special needs population of medically complex and fragile
children, adolescents and young disabled adults by a CHHA operating
under a pilot program approved by the department, long term home health
care programs and AIDS home care programs in accordance with this
paragraph and paragraph (b) of this subdivision for purposes of
improving recruitment and retention of non-supervisory home care
services workers or any worker with direct patient care responsibility
in the following amounts for services provided on and after December
first, two thousand two.

(i) rates of payment by governmental agencies for certified home
health agency services for such services provided to children under
eighteen years of age and for services provided to a special needs
population of medically complex and fragile children, adolescents and
young disabled adults by a CHHA operating under a pilot program approved
by the department (including services provided through contracts with
licensed home care services agencies) shall be increased by three
percent;

(ii) rates of payment by governmental agencies for long term home
health care program services (including services provided through
contracts with licensed home care services agencies) shall be increased
by three percent; and

(iii) rates of payment by governmental agencies for AIDS home care
programs (including services provided through contracts with licensed
home care services agencies) shall be increased by three percent.

(b) (i) Providers which have their rates adjusted pursuant to this
subdivision shall use such funds solely for the purposes of recruitment
and retention of non-supervisory home care services workers or any
worker with direct patient care responsibility. Such purposes shall
include the recruitment and retention of non-supervisory home care
services workers or any worker with direct patient care responsibility
employed in licensed home care services agencies under contract with
such providers. Providers are prohibited from using such funds for any
other purpose.

(ii) Each such provider shall submit, at a time and in a manner
determined by the commissioner, a written certification attesting that
such funds will be used solely for the purpose of recruitment and
retention of non-supervisory home care services workers or any worker
with direct patient care responsibility. The commissioner is authorized
to audit each such provider to ensure compliance with the written
certification required by this subdivision and shall recoup any funds
determined to have been used for purposes other than recruitment and
retention of non-supervisory home care services workers or any worker
with direct patient care responsibility. Such recoupment shall be in
addition to any other penalties provided by law.

(iii) In the case of services provided by such providers through
contracts with licensed home care services agencies, rate increases
received by such providers pursuant to this subdivision shall be
reflected, consistent with the purposes of subparagraph (i) of this
paragraph, in either the fees paid or benefits or other supports
provided to non-supervisory home care services workers or any worker
with direct patient care responsibility of such contracted licensed home
care services agencies and such fees, benefits or other supports shall
be proportionate to the contracted volume of services attributable to
each contracted agency. Such agencies shall submit to providers with
which they contract written certifications attesting that such funds
will be used solely for the purposes of recruitment and retention of
non-supervisory home care services workers or any worker with direct
patient care responsibility and shall maintain in their files
expenditure plans specifying how such funds will be used for such
purposes. The commissioner is authorized to audit such agencies to
ensure compliance with such certifications and expenditure plans and
shall recoup any funds determined to have been used for purposes other
than those set forth in this subdivision. Such recoupment will be in
addition to any other penalties provided by law.

(iv) Funds under this subdivision are not intended to supplant support
provided by local government.

9. Notwithstanding any law to the contrary, the commissioner shall,
subject to the availability of federal financial participation, adjust
medical assistance rates of payment for certified home health agencies
for such services provided to children under eighteen years of age and
for services provided to a special needs population of medically complex
and fragile children, adolescents and young disabled adults by a CHHA
operating under a pilot program approved by the department, long term
home health care programs, AIDS home care programs established pursuant
to this article, hospice programs established under article forty of
this chapter and for managed long term care plans and approved managed
long term care operating demonstrations as defined in section forty-four
hundred three-f of this chapter. Such adjustments shall be for purposes
of improving recruitment, training and retention of home health aides or
other personnel with direct patient care responsibility in the following
aggregate amounts for the following periods:

(a) for the period June first, two thousand six through December
thirty-first, two thousand six, fifty million dollars;

(b) for the period January first, two thousand seven through June
thirtieth, two thousand seven, fifty million dollars;

(c) for the period July first, two thousand seven through March
thirty-first, two thousand eight, up to one hundred million dollars;

(d) for the period April first, two thousand eight through March
thirty-first, two thousand nine, up to one hundred million dollars;

(e) for the period April first, two thousand nine through March
thirty-first, two thousand ten, up to one hundred million dollars;

(f) for the period April first, two thousand ten through March
thirty-first, two thousand eleven, up to one hundred million dollars;

(g) for the period April first, two thousand eleven through March
thirty-first, two thousand twelve, up to one hundred million dollars;

(h) for the period April first, two thousand twelve through March
thirty-first, two thousand thirteen, up to one hundred million dollars;

(i) for the period April first, two thousand thirteen through March
thirty-first, two thousand fourteen, up to one hundred million dollars;

(j) for the period April first, two thousand fourteen through March
thirty-first, two thousand fifteen, up to one hundred million dollars;

(k) for the period April first, two thousand fifteen through March
thirty-first, two thousand sixteen, up to one hundred million dollars;

(l) for the period April first, two thousand sixteen through March
thirty-first, two thousand seventeen, up to one hundred million dollars;

(m) for the period April first, two thousand seventeen through March
thirty-first, two thousand eighteen, up to one hundred million dollars;

(n) for the period April first, two thousand eighteen through March
thirty-first, two thousand nineteen, up to one hundred million dollars;

(o) for the period April first, two thousand nineteen through March
thirty-first, two thousand twenty, up to one hundred million dollars;

(p) for the period April first, two thousand twenty through March
thirty-first, two thousand twenty-one, up to one hundred million
dollars;

(q) for the period April first, two thousand twenty-one through March
thirty-first, two thousand twenty-two, up to one hundred million
dollars;

(r) for the period April first, two thousand twenty-two through March
thirty-first, two thousand twenty-three, up to one hundred million
dollars.

10. (a) Such adjustments to rates of payments shall be allocated
proportionally based on each certified home health agency, long term
home health care program, AIDS home care and hospice program's home
health aide or other direct care services total annual hours of service
provided to medicaid patients, as reported in each such agency's most
recently available cost report as submitted to the department or for the
purpose of the managed long term care program a suitable proxy developed
by the department in consultation with the interested parties. Payments
made pursuant to this section shall not be subject to subsequent
adjustment or reconciliation; provided that such adjustments to rates of
payments to certified home health agencies shall only be for that
portion of services provided to children under eighteen years of age and
for services provided to a special needs population of medically complex
and fragile children, adolescents and young disabled adults by a CHHA
operating under a pilot program approved by the department.

(b) Programs which have their rates adjusted pursuant to this
subdivision shall use such funds solely for the purposes of recruitment,
training and retention of non-supervisory home care services workers or
other personnel with direct patient care responsibility. Such purpose
shall include the recruitment, training and retention of non-supervisory
home care services workers or any worker with direct patient care
responsibility employed in licensed home care services agencies under
contract with such agencies. Such agencies are prohibited from using
such fund for any other purpose. For purposes of the long term home
health care program, such payment shall be treated as supplemental
payments and not effect any current cost cap requirement. Each such
agency shall submit, at a time and in a manner determined by the
commissioner, a written certification attesting that such funds will be
used solely for the purpose of recruitment, training and retention of
non-supervisory home health aides or any personnel with direct patient
care responsibility. The commissioner is authorized to audit each such
agency or program to ensure compliance with the written certification
required by this subdivision and shall recoup any funds determined to
have been used for purposes other than recruitment and retention of
non-supervisory home health aides or other personnel with direct patient
care responsibility. Such recoupment shall be in addition to any other
penalties provided by law.

(c) In the case of services provided by such agencies or programs
through contracts with licensed home care services agencies, rate
increases received by such agencies or programs pursuant to this
subdivision shall be reflected, consistent with the purposes of this
subdivision, in either the fees paid or benefits or other supports,
including training, provided to non-supervisory home health aides or any
other personnel with direct patient care responsibility of such
contracted licensed home care services agencies and such fees, benefits
or other supports shall be proportionate to the contracted volume of
services attributable to each contracted agency. Such agencies or
programs shall submit to providers with which they contract written
certifications attesting that such funds will be used solely for the
purposes of recruitment, training and retention of non-supervisory home
health aides or other personnel with direct patient care responsibility
and shall maintain in their files expenditure plans specifying how such
funds will be used for such purposes. The commissioner is authorized to
audit such agencies or programs to ensure compliance with such
certifications and expenditure plans and shall recoup any funds
determined to have been used for purposes other than those set forth in
this subdivision. Such recoupment shall be in addition to any other
penalties provided by law.

(d) Funds under this subdivision are not intended to supplant support
provided by local government.

11. (a) Notwithstanding any inconsistent provision of law, rule or
regulation and subject to the availability of federal financial
participation, the commissioner is authorized and directed to implement
a program whereby he or she shall adjust medical assistance rates of
payment for services provided by certified home health agencies, long
term home health care programs, AIDS home care programs and providers of
personal care services and/or providers of private duty nursing services
under the social services law in accordance with this subdivision for
purposes of enhancing the provision, accessibility, quality and/or
efficiency of home care services. Such rate adjustments shall be for the
purposes of assisting such providers, located in social services
districts which do not include a city with a population of over one
million persons, in meeting the cost of:

(i) Increased use of technology in the delivery of services, including
telehealth and clinical and administrative management information
system;

(ii) Specialty training of direct service personnel in dementia care,
pediatric care and/or the care of other conditions or populations with
complex needs;

(iii) Increased auto and travel expenses associated with rising fuel
prices, including the increased cost of providing services in remote
areas; and/or

(iv) Providing enhanced access to care for high need populations;

(v) Such other purposes related to the provision of quality,
accessible home care services as the commissioner may deem appropriate.

(b) The commissioner shall increase the medical assistance rates of
payment pursuant to this subdivision in an amount up to an aggregate of
sixteen million dollars for the period June first, two thousand six
through March thirty-first, two thousand seven, and sixteen million
dollars for the period April first, two thousand seven through March
thirty-first, two thousand eight, and sixteen million dollars for the
period April first, two thousand eight through March thirty-first, two
thousand nine, provided however that if federal financial participation
is not available for rate adjustments pursuant to this subdivision such
aggregate amount shall not exceed eight million dollars, and provided,
further, however, that for purposes of long term home health care
programs, such payments provided pursuant to this subdivision shall be
treated as supplemental payments and shall not effect any current cost
cap requirement.

(c) Such rate adjustments shall be in the form of a uniform percentage
add-on to the rates, as determined by the department, based on the
proportion of the total allocated adjustment dollars, as determined in
paragraph (b) of this subdivision, to the total medicaid expenditures
for services provided for certified home health agencies, long-term home
health care programs, AIDS nursing, personal care assistants and private
duty nurses services in local social services districts which do not
include a city with a population over one million.

12. (a) Notwithstanding any inconsistent provision of law or
regulation and subject to the availability of federal financial
participation, effective on and after April first, two thousand eleven
through March thirty-first, two thousand twelve, rates of payment by
government agencies for services provided by certified home health
agencies, except for such services provided to children under eighteen
years of age and other discrete groups as may be determined by the
commissioner pursuant to regulations, shall reflect ceiling limitations
determined in accordance with this subdivision, provided, however, that
at the discretion of the commissioner such ceilings may, as an
alternative, be applied to payments for services provided on and after
April first, two thousand eleven, except for such services provided to
children and other discrete groups as may be determined by the
commissioner pursuant to regulations. In determining such payments or
rates of payment, agency ceilings shall be established. Such ceilings
shall be applied to payments or rates of payment for certified home
health agency services as established pursuant to this section and
applicable regulations. Ceilings shall be based on a blend of: (i) an
agency's two thousand nine average per patient Medicaid claims, weighted
at a percentage as determined by the commissioner; and (ii) the two
thousand nine statewide average per patient Medicaid claims adjusted by
a regional wage index factor and an agency patient case mix index,
weighted at a percentage as determined by the commissioner. Such
ceilings will be effective April first, two thousand eleven through
March thirty-first, two thousand twelve. An interim payment or rate of
payment adjustment effective April first, two thousand eleven, shall be
applied to agencies with projected average per patient Medicaid claims,
as determined by the commissioner, to be over their ceilings. Such
agencies shall have their payments or rates of payment reduced to
reflect the amount by which such claims exceed their ceilings.

(b) Ceiling limitations determined pursuant to paragraph (a) of this
subdivision shall be subject to reconciliation. In determining payment
or rate of payment adjustments based on such reconciliation, adjusted
agency ceilings shall be established. Such adjusted ceilings shall be
based on a blend of: (i) an agency's two thousand nine average per
patient Medicaid claims adjusted by the percentage of increase or
decrease in such agency's patient case mix from the two thousand nine
calendar year to the annual period April first, two thousand eleven
through March thirty-first, two thousand twelve, weighted at a
percentage as determined by the commissioner; and (ii) the two thousand
nine statewide average per patient Medicaid claims adjusted by a
regional wage index factor and the agency's patient case mix index for
the annual period April first, two thousand eleven through March
thirty-first, two thousand twelve, weighted at a percentage as
determined by the commissioner. Such adjusted agency ceiling shall be
compared to actual Medicaid paid claims for the period April first, two
thousand eleven through March thirty-first, two thousand twelve. In
those instances when an agency's actual per patient Medicaid claims are
determined to exceed the agency's adjusted ceiling, the amount of such
excess shall be due from each such agency to the state and may be
recouped by the department in a lump sum amount or through reductions in
the Medicaid payments due to the agency. In those instances where an
interim payment or rate of payment adjustment was applied to an agency
in accordance with paragraph (a) of this subdivision, and such agency's
actual per patient Medicaid claims are determined to be less than the
agency's adjusted ceiling, the amount by which such Medicaid claims are
less than the agency's adjusted ceiling shall be remitted to each such
agency by the department in a lump sum amount or through an increase in
the Medicaid payments due to the agency.

(c) Interim payment or rate of payment adjustments pursuant to this
subdivision shall be based on Medicaid paid claims, as determined by the
commissioner, for services provided by agencies in the base year two
thousand nine. Amounts due from reconciling rate adjustments shall be
based on Medicaid paid claims, as determined by the commissioner, for
services provided by agencies in the base year two thousand nine and
Medicaid paid claims, as determined by the commissioner, for services
provided by agencies in the reconciliation period April first, two
thousand eleven through March thirty-first, two thousand twelve. In
determining case mix, each patient shall be classified using a system
based on measures which may include, but not be limited to, clinical and
functional measures, as reported on the federal Outcome and Assessment
Information Set (OASIS), as may be amended.

(d) The commissioner may require agencies to collect and submit any
data required to implement the provisions of this subdivision. The
commissioner may promulgate regulations to implement the provisions of
this subdivision.

(e) Payments or rate of payment adjustments determined pursuant to
this subdivision shall, for the period April first, two thousand eleven
through March thirty-first, two thousand twelve, be retroactively
reconciled utilizing the methodology in paragraph (b) of this
subdivision and utilizing actual paid claims from such period.

(f) Notwithstanding any inconsistent provision of this subdivision,
payments or rate of payment adjustments made pursuant to this
subdivision shall not result in an aggregate annual decrease in Medicaid
payments to providers subject to this subdivision that is in excess of
two hundred million dollars, as determined by the commissioner and not
subject to subsequent adjustment, and the commissioner shall make such
adjustments to such payments or rates of payment as are necessary to
ensure that such aggregate limits on payment decreases are not exceeded.

13. (a) Notwithstanding any inconsistent provision of law or
regulation and subject to the availability of federal financial
participation, effective April first, two thousand twelve through March
thirty-first, two thousand twenty-three, payments by government agencies
for services provided by certified home health agencies, except for such
services provided to children under eighteen years of age and other
discreet groups as may be determined by the commissioner pursuant to
regulations, shall be based on episodic payments. In establishing such
payments, a statewide base price shall be established for each sixty day
episode of care and adjusted by a regional wage index factor and an
individual patient case mix index. Such episodic payments may be further
adjusted for low utilization cases and to reflect a percentage
limitation of the cost for high-utilization cases that exceed outlier
thresholds of such payments.

(b) Initial base year episodic payments shall be based on Medicaid
paid claims, as determined and adjusted by the commissioner to achieve
savings comparable to the prior state fiscal year, for services provided
by all certified home health agencies in the base year two thousand
nine. Subsequent base year episodic payments may be based on Medicaid
paid claims for services provided by all certified home health agencies
in a base year subsequent to two thousand nine, as determined by the
commissioner, provided, however, that such base year adjustment shall be
made not less frequently than every three years. In determining case
mix, each patient shall be classified using a system based on measures
which may include, but not limited to, clinical and functional measures,
as reported on the federal Outcome and Assessment Information Set
(OASIS), as may be amended.

(c) The commissioner may require agencies to collect and submit any
data required to implement this subdivision. The commissioner may
promulgate regulations to implement the provisions of this subdivision.

14. (a) Notwithstanding any contrary provision of law and subject to
the availability of federal financial participation, for periods on and
after March first, two thousand fourteen the commissioner shall adjust
Medicaid rates of payment for services provided by certified home health
agencies to address cost increases stemming from the wage increases
required by implementation of the provisions of section thirty-six
hundred fourteen-c of this article. Such rate adjustments shall be based
on a comparison, as determined by the commissioner, of the hourly
compensation levels for home health aides and personal care aides as
reflected in the existing Medicaid rates for certified home health
agencies to the hourly compensation levels incurred as a result of
complying with the provisions of section thirty-six hundred fourteen-c
of this article.

(b) Notwithstanding any contrary provision of law and subject to the
availability of federal financial participation, for periods on and
after March first, two thousand fourteen the commissioner shall adjust
Medicaid rates of payment for services provided by long term home health
care programs to address cost increases stemming from the wage increases
required by implementation of the provisions of section thirty-six
hundred fourteen-c of this article. Such rate adjustments shall be based
on a comparison, as determined by the commissioner, of the hourly
compensation levels for home health aides and personal care aides as
reflected in the existing Medicaid rates for long term home health care
programs to the hourly compensation levels incurred as a result of
complying with the provisions of section thirty-six hundred fourteen-c
of this article.