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This entry was published on 2021-10-08
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SECTION 365-A
Character and adequacy of assistance
Social Services (SOS) CHAPTER 55, ARTICLE 5, TITLE 11
§ 365-a. Character and adequacy of assistance. The amount, nature and
manner of providing medical assistance for needy persons shall be
determined by the public welfare official with the advice of a physician
and in accordance with the local medical plan, this title, and the
regulations of the department.

1. "Benchmark coverage" shall mean payment of part or all of the cost
of medically necessary medical, dental, and remedial care, services, and
supplies described in subdivision two of this section, and to the extent
not included therein, any essential benefits as defined in 42 U.S.C.
18022(b), with the exception of institutional long term care services;
such care, services and supplies shall be provided consistent with the
managed care program described in section three hundred sixty-four-j of
this title.

2. "Standard coverage" shall mean payment of part or all of the cost
of medically necessary medical, dental and remedial care, services and
supplies, as authorized in this title or the regulations of the
department, which are necessary to prevent, diagnose, correct or cure
conditions in the person that cause acute suffering, endanger life,
result in illness or infirmity, interfere with such person's capacity
for normal activity, or threaten some significant handicap and which are
furnished an eligible person in accordance with this title and the
regulations of the department. Such care, services and supplies shall
include the following medical care, services and supplies, together with
such medical care, services and supplies provided for in subdivisions
three, four and five of this section, and such medical care, services
and supplies as are authorized in the regulations of the department:

(a) services of qualified physicians, dentists, nurses, and private
duty nursing services shall be further subject to the provisions of
section three hundred sixty-seven-o of this chapter, optometrists, and
other related professional personnel;

(b) care, treatment, maintenance and nursing services in hospitals,
nursing homes that qualify as providers in the medicare program pursuant
to title XVIII of the federal social security act, infirmaries or other
eligible medical institutions, and health-related care and services in
intermediate care facilities, while operated in compliance with
applicable provisions of this chapter, the public health law, the mental
hygiene law and other laws, including any provision thereof requiring an
operating certificate or license, or where such facilities are not
conveniently accessible, in hospitals located without the state;
provided, however, that care, treatment, maintenance and nursing
services in nursing homes or in intermediate care facilities, including
those operated by the state department of mental hygiene or any other
state department or agency, shall, for persons who are receiving or who
are eligible for medical assistance under provisions of subparagraph
four of paragraph (a) of subdivision one of section three hundred
sixty-six of this chapter, be limited to such periods of time as may be
determined necessary in accordance with a utilization review procedure
established by the state commissioner of health providing for a review
of medical necessity, in the case of skilled nursing care, every thirty
days for the first ninety days and every ninety days thereafter, and in
the case of care in an intermediate care facility, at least every six
months, or more frequently if indicated at the time of the last review,
consistent with federal utilization review requirements; provided,
further, that in-patient care, services and supplies in a general
hospital shall not exceed such standards as the commissioner of health
shall promulgate but in no case greater than twenty days per spell of
illness during which all or any part of the cost of such care, services
and supplies are claimed as an item of medical assistance, unless it
shall have been determined in accordance with procedures and criteria
established by such commissioner that a further identifiable period of
in-patient general hospital care is required for particular patients to
preserve life or to prevent substantial risks of continuing disability;
provided further, that in-patient care, services and supplies in a
general hospital shall, in the case of a person admitted to such a
facility on a Friday or Saturday, be deemed to include only those
in-patient days beginning with and following the Sunday after such date
of admission, unless such care, services and supplies are furnished for
an actual medical emergency or pre-operative care for surgery as
provided in paragraph (d) of subdivision five of this section, or are
furnished because of the necessity of emergency or urgent surgery for
the alleviation of severe pain or the necessity for immediate diagnosis
or treatment of conditions which threaten disability or death if not
promptly diagnosed or treated; provided, however, in-patient days of a
general hospital admission beginning on a Friday or a Saturday shall be
included commencing with the day of admission in a general hospital
which the commissioner or his designee has found to be rendering and
which continues to render full service on a seven day a week basis which
determination shall be made after taking into consideration such factors
as the routine availability of operating room services, diagnostic
services and consultants, laboratory services, radiological services,
pharmacy services, staff patterns consistent with full services and such
other factors as the commissioner or his designee deems necessary and
appropriate; provided, further, that in-patient care, services and
supplies in a general hospital shall not include care, services and
supplies furnished to patients for certain uncomplicated procedures
which may be performed on an out-patient basis in accordance with
regulations of the commissioner of health, unless the person or body
designated by such commissioner determines that the medical condition of
the individual patient requires that the procedure be performed on an
in-patient basis;

(c) out-patient hospital or clinic services in facilities operated in
compliance with applicable provisions of this chapter, the public health
law, the mental hygiene law and other laws, including any provisions
thereof requiring an operating certificate or license, including
facilities authorized by the appropriate licensing authority to provide
integrated mental health services, and/or alcoholism and substance abuse
services, and/or physical health services, and/or services to persons
with developmental disabilities, when such services are provided at a
single location or service site, or where such facilities are not
conveniently accessible, in any hospital located within the state and
care and services in a day treatment program operated by the department
of mental hygiene or by a voluntary agency under an agreement with such
department in that part of a public institution operated and approved
pursuant to law as an intermediate care facility for persons with
developmental disabilities; and provided, that the commissioners of
health, mental health, alcoholism and substance abuse services and the
office for people with developmental disabilities may issue regulations,
including emergency regulations promulgated prior to October first, two
thousand fifteen that are required to facilitate the establishment of
integrated services clinics. Any such regulations promulgated under this
paragraph shall be described in the annual report required pursuant to
section forty-five-c of part A of chapter fifty-six of the laws of two
thousand thirteen;

(d) home health services provided in a recipient's home and prescribed
by a physician including services of a nurse provided on a part-time or
intermittent basis rendered by an approved home health agency or if no
such agency is available, by a registered nurse, licensed to practice in
this state, acting under the written orders of a physician and home
health aide service by an individual or shared aide provided by an
approved home health agency when such services are determined to be cost
effective and appropriate to meet the recipient's needs for assistance
subject to the provisions of section three hundred sixty-seven-j and
section three hundred sixty-seven-o of this title;

(e) (i) personal care services, including personal emergency response
services, shared aide and an individual aide, subject to the provisions
of subparagraphs (ii), (iii), (iv), (v) and (vi) of this paragraph,
furnished to an individual who is not an inpatient or resident of a
hospital, nursing facility, intermediate care facility for individuals
with intellectual disabilities, or institution for mental disease, as
determined to meet the recipient's needs for assistance when cost
effective and appropriate, and when prescribed by a qualified
independent physician selected or approved by the department of health,
in accordance with the recipient's plan of treatment and provided by
individuals who are qualified to provide such services, who are
supervised by a registered nurse and who are not members of the
recipient's family, and furnished in the recipient's home or other
location;

(ii) the commissioner is authorized to adopt standards, pursuant to
emergency regulation, for the provision, management and assessment of
services available under this paragraph for individuals whose need for
such services exceeds a specified level to be determined by the
commissioner, and who with the provision of such services is capable of
safely remaining in the community in accordance with the standards set
forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider
whether an individual is capable of safely remaining in the community;

(iii) the commissioner shall provide assistance to persons receiving
services under this paragraph who are transitioning to receiving care
from a managed long term care plan certified pursuant to section
forty-four hundred three-f of the public health law, consistent with
subdivision thirty-one of section three hundred sixty-four-j of this
title;

(iv) personal care services available pursuant to this paragraph shall
not exceed eight hours per week for individuals whose needs are limited
to nutritional and environmental support functions;

(v) subject to the availability of federal financial participation,
personal care services other than personal emergency response services
available pursuant to this paragraph shall be available only to
individuals assessed as needing at least limited assistance with
physical maneuvering with more than two activities of daily living, or
for individuals with a dementia or Alzheimer's diagnosis, assessed as
needing at least supervision with more than one activity of daily
living, as defined and determined by using an evidenced based validated
assessment instrument approved by the commissioner and in accordance
with regulations of the department and any applicable state and federal
laws by an independent assessor. The provisions of this subparagraph
shall only apply to individuals who receive an initial authorization for
such services on or after October first, two thousand twenty;

(vi) In establishing any standards for the provision, management or
assessment of personal care services the state shall meet the standards
set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider
whether an individual is capable of safely remaining in the community;

(f) preventive, prophylactic and other routine dental care, services
and supplies;

(g) sickroom supplies, eyeglasses, prosthetic appliances and dental
prosthetic appliances furnished in accordance with the regulations of
the department; provided further that: (i) the commissioner of health is
authorized to implement a preferred diabetic supply program wherein the
department of health will receive enhanced rebates from preferred
manufacturers of glucometers and test strips, and may subject
non-preferred manufacturers' glucometers and test strips to prior
authorization under section two hundred seventy-three of the public
health law; (ii) enteral formula therapy and nutritional supplements are
limited to coverage only for nasogastric, jejunostomy, or gastrostomy
tube feeding, for treatment of an inborn metabolic disorder, or to
address growth and development problems in children, or, subject to
standards established by the commissioner, for persons with a diagnosis
of HIV infection, AIDS or HIV-related illness or other diseases and
conditions; (iii) prescription footwear and inserts are limited to
coverage only when used as an integral part of a lower limb orthotic
appliance, as part of a diabetic treatment plan, or to address growth
and development problems in children; (iv) compression and support
stockings are limited to coverage only for pregnancy or treatment of
venous stasis ulcers; and (v) the commissioner of health is authorized
to implement an incontinence supply utilization management program to
reduce costs without limiting access through the existing provider
network, including but not limited to single or multiple source
contracts or, a preferred incontinence supply program wherein the
department of health will receive enhanced rebates from preferred
manufacturers of incontinence supplies, and may subject non-preferred
manufacturers' incontinence supplies to prior approval pursuant to
regulations of the department, provided any necessary approvals under
federal law have been obtained to receive federal financial
participation in the costs of incontinence supplies provided pursuant to
this subparagraph;

(g-1) drugs provided on an in-patient basis, those drugs contained on
the list established by regulation of the commissioner of health
pursuant to subdivision four of this section, and those drugs which may
not be dispensed without a prescription as required by section
sixty-eight hundred ten of the education law and which the commissioner
of health shall determine to be reimbursable based upon such factors as
the availability of such drugs or alternatives at low cost if purchased
by a medicaid recipient, or the essential nature of such drugs as
described by such commissioner in regulations, provided, however, that
such drugs, exclusive of long-term maintenance drugs, shall be dispensed
in quantities no greater than a thirty day supply or one hundred doses,
whichever is greater; provided further that the commissioner of health
is authorized to require prior authorization for any refill of a
prescription when more than a ten day supply of the previously dispensed
amount should remain were the product used as normally indicated, or in
the case of a controlled substance, as defined in section thirty-three
hundred two of the public health law, when more than a seven day supply
of the previously dispensed amount should remain were the product used
as normally indicated; provided further that the commissioner of health
is authorized to require prior authorization of prescriptions of opioid
analgesics in excess of four prescriptions in a thirty-day period in
accordance with section two hundred seventy-three of the public health
law; medical assistance shall not include any drug provided on other
than an in-patient basis for which a recipient is charged or a claim is
made in the case of a prescription drug, in excess of the maximum
reimbursable amounts to be established by department regulations in
accordance with standards established by the secretary of the United
States department of health and human services, or, in the case of a
drug not requiring a prescription, in excess of the maximum reimbursable
amount established by the commissioner of health pursuant to paragraph
(a) of subdivision four of this section;

(h) speech therapy, and when provided at the direction of a physician
or nurse practitioner, physical therapy including related rehabilitative
services and occupational therapy;

(i) laboratory and x-ray services; and

(j) transportation when essential and appropriate to obtain medical
care, services and supplies otherwise available under the medical
assistance program in accordance with this section, upon prior
authorization, except when required in order to obtain emergency care,
and when not otherwise available to the recipient free of charge or
through a transportation program implemented pursuant to section three
hundred sixty-five-h of this title and approved by the commissioner of
health for which federal financial participation is claimed as an
administrative cost;

* (k) care and services furnished by an entity offering a
comprehensive health services plan, including an entity that has
received a certificate of authority pursuant to sections forty-four
hundred three, forty-four hundred three-a or forty-four hundred eight-a
of the public health law (as added by chapter six hundred thirty-nine of
the laws of nineteen hundred ninety-six) or a health maintenance
organization authorized under article forty-three of the insurance law,
to eligible individuals residing in the geographic area served by such
entity, when such services are furnished in accordance with an agreement
approved by the department which meets the requirements of federal law
and regulations.

* NB Effective until December 31, 2024

* (k) care and services furnished by an entity offering a
comprehensive health services plan to eligible individuals residing in
the geographic area served by such entity, when such services are
furnished in accordance with an agreement approved by the department
which meets the requirements of federal law and regulations.

* NB Effective December 31, 2024

(l) care and services of podiatrists which care and services shall
only be provided upon referral by a physician, nurse practitioner or
certified nurse midwife in accordance with the program of early and
periodic screening and diagnosis established pursuant to subdivision
three of this section or to persons eligible for benefits under title
XVIII of the federal social security act as qualified medicare
beneficiaries in accordance with federal requirements therefor and
private duty nurses which care and services shall only be provided in
accordance with regulations of the department of health; provided,
however, that private duty nursing services shall not be restricted when
such services are more appropriate and cost-effective than nursing
services provided by a home health agency pursuant to section three
hundred sixty-seven-l;

(m) hospice services provided by a hospice certified pursuant to
article forty of the public health law, to the extent that federal
financial participation is available, and, notwithstanding federal
financial participation and any provision of law or regulation to the
contrary, for hospice services provided pursuant to the hospice
supplemental financial assistance program for persons with special needs
as provided for in article forty of the public health law.

* (n) care and services of audiologists provided in accordance with
regulations of the department of health.

* NB There are two ¶ (n)'s

* (n) care, treatment, maintenance and rehabilitation services that
would otherwise qualify for reimbursement pursuant to this chapter to
persons suffering from alcoholism in alcoholism facilities or chemical
dependence, as such term is defined in section 1.03 of the mental
hygiene law, in inpatient chemical dependence facilities, services, or
programs operated in compliance with applicable provisions of this
chapter and the mental hygiene law, and certified by the office of
alcoholism and substance abuse services, provided however that such
services shall be limited to such periods of time as may be determined
necessary in accordance with a utilization review procedure established
by the commissioner of the office of alcoholism and substance abuse
services and provided further, that this paragraph shall not apply to
any hospital or part of a hospital as defined in section two thousand
eight hundred one of the public health law.

* NB There are two ¶ (n)'s

* (o) care and services furnished by a managed long term care plan or
approved managed long term care demonstration pursuant to the provisions
of section forty-four hundred three-f of the public health law to
eligible individuals residing in the geographic area served by such
entity, when such services are furnished in accordance with an agreement
with the department of health and meet the applicable requirements of
federal law and regulation.

* NB Repealed December 31, 2024

(p) targeted case management services provided to children who

(i) are eighteen years of age or under; and

(ii) either

(1) are physically disabled, according to the federal supplemental
security income program criteria, including but not limited to a person
who is multiply disabled; or

(2) have a developmental disability, as defined in subdivision
twenty-two of section 1.03 of the mental hygiene law and demonstrate
complex health needs as defined in paragraph c of subdivision seven of
section three hundred sixty-six of this title; or

(3) have a mental illness, as defined in subdivision twenty of section
1.03 of the mental hygiene law and demonstrate complex health or mental
health care needs as defined in paragraph d of subdivision nine of
section three hundred sixty-six of this title; and

(iii) require the level of care provided by an intermediate care
facility for the developmentally disabled, a nursing facility, a
hospital or any other institution; and

(iv) are capable of being cared for in the community if provided with
case management services and/or other services provided under this
title; and

(v) are capable of being cared for in the community at less cost than
in the appropriate institutional setting; and

(vi) are not receiving services under section three hundred
sixty-seven-c of this title and for whom services provided under section
three hundred sixty-seven-a of this title are not available or
sufficient to support the children's care in the community.

(q) diabetes self-management training services for persons diagnosed
with diabetes when such services are ordered by a physician, registered
physician assistant, registered nurse practitioner, or licensed midwife
and provided by a licensed, registered, or certified health care
professional, as determined by the commissioner of health, who is
certified as a diabetes educator by the National Certification Board for
Diabetes Educators, or a successor national certification board, or
provided by such a professional who is affiliated with a program
certified by the American Diabetes Association, the American Association
of Diabetes Educators, the Indian Health Services, or any other national
accreditation organization approved by the federal centers for medicare
and medicaid services; provided, however, that the provisions of this
paragraph shall not take effect unless all necessary approvals under
federal law and regulation have been obtained to receive federal
financial participation in the costs of health care services provided
pursuant to this paragraph. Nothing in this paragraph shall be construed
to modify any licensure, certification or scope of practice provision
under title eight of the education law.

(r) asthma self-management training services for persons diagnosed
with asthma when such services are ordered by a physician, registered
physician's assistant, registered nurse practitioner, or licensed
midwife and provided by a licensed, registered, or certified health care
professional, as determined by the commissioner of health, who is
certified as an asthma educator by the National Asthma Educator
Certification Board, or a successor national certification board;
provided, however, that the provisions of this paragraph shall not take
effect unless all necessary approvals under federal law and regulation
have been obtained to receive federal financial participation in the
costs of health care services provided pursuant to this paragraph.
Nothing in this paragraph shall be construed to modify any licensure,
certification or scope of practice provision under title eight of the
education law.

(s) smoking cessation counseling services; provided, however, that the
provisions of this paragraph shall not take effect unless all necessary
approvals under federal law and regulation have been obtained to receive
federal financial participation in the costs of such services.

(t) cardiac rehabilitation services when ordered by the attending
physician and provided in a hospital-based or free-standing clinic in an
area set aside for cardiac rehabilitation, or in a physician's office;
provided, however, that the provisions of this paragraph relating to
cardiac rehabilitation services shall not take effect unless all
necessary approvals under federal law and regulation have been obtained
to receive federal financial participation in the costs of such
services.

(u) screening, brief intervention, and referral to treatment of
individuals at risk for substance abuse including referral to the
appropriate level of intervention and treatment in a community setting;
provided, however, that the provisions of this paragraph relating to
screening, brief intervention, and referral to treatment services shall
not take effect unless all necessary approvals under federal law and
regulation have been obtained to receive federal financial participation
in such costs.

(v) administration of vaccinations in a pharmacy by a certified
pharmacist within his or her scope of practice.

(w) podiatry services for individuals with a diagnosis of diabetes
mellitus; provided, however, that the provisions of this paragraph shall
not take effect unless all necessary approvals under federal law and
regulation have been obtained to receive federal financial participation
in the costs of health care services provided pursuant to this
paragraph.

(x)(i) lactation counseling services for pregnant and postpartum women
when such services are ordered by a physician, physician assistant,
nurse practitioner, or midwife and provided by a qualified lactation
care provider, as determined by the commissioner of health; provided,
however, that the provisions of this paragraph shall not take effect
unless all necessary approvals under federal law and regulation have
been obtained to receive federal financial participation in the costs of
health care services provided pursuant to this paragraph. Nothing in
this paragraph shall be construed to modify any licensure, certification
or scope of practice provision under title eight of the education law.

(ii) for the purposes of this paragraph, the following terms shall
have the following meanings:

(1) "Qualified lactation care provider" shall mean a person who
possesses current certification as a lactation care provider from a
certification program accredited by a nationally recognized accrediting
agency.

(2) "Nationally recognized accrediting agency" shall mean a nationally
recognized accrediting agency designated by the commissioner; provided
that the commissioner shall designate more than one agency.

(y) harm reduction counseling and services to reduce or minimize the
adverse health consequences associated with drug use, provided by a
qualified drug treatment program or community-based organization, as
determined by the commissioner of health; provided, however, that the
provisions of this paragraph shall not take effect unless all necessary
approvals under federal law and regulation have been obtained to receive
federal financial participation in the costs of health care services
provided pursuant to this paragraph. Nothing in this paragraph shall be
construed to modify any licensure, certification or scope of practice
provision under title eight of the education law.

(z) hepatitis C wrap-around services to promote care coordination and
integration when ordered by a physician, registered physician assistant,
registered nurse practitioner, or licensed midwife, and provided by a
qualified professional, as determined by the commissioner of health.
Such services may include client outreach, identification and
recruitment, hepatitis C education and counseling, coordination of care
and adherence to treatment, assistance in obtaining appropriate
entitlement services, peer support and other supportive services;
provided, however, that the provisions of this paragraph shall not take
effect unless all necessary approvals under federal law and regulation
have been obtained to receive federal financial participation in the
costs of health care services provided pursuant to this paragraph.
Nothing in this paragraph shall be construed to modify any licensure,
certification or scope of practice provision under title eight of the
education law.

** (aa) care and services furnished by a developmental disability
individual support and care coordination organization (DISCO) that has
received a certificate of authority pursuant to section forty-four
hundred three-g of the public health law to eligible individuals
residing in the geographic area served by such entity, when such
services are furnished in accordance with an agreement approved by the
department of health which meets the requirements of federal law and
regulations.

* NB Repealed September 30, 2023

(bb) Subject to the availability of federal financial participation,
services and supports authorized by the federal regulations governing
the Home and Community-Based Attendant Services and Supports State Plan
Option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).

(cc) care and services for surgical first assistant services provided
by a registered nurse first assistant provided that: (i) the registered
nurse first assistant is certified in operating room nursing; (ii) the
services are within the scope of practice of a non-physician surgical
first assistant; and (iii) the terms and conditions of the policy or
contract otherwise provide for the coverage of the services. Nothing in
this paragraph shall be construed to prevent the medical management or
utilization review of the services; prevent a policy or contract from
requiring that services are to be provided through a network of
participating providers who meet certain requirements for participation,
including provider credentialing; or prohibit an insurer from providing
a global or capitated payment or electing to directly reimburse a
non-physician surgical first assistant for the services, as otherwise
permitted by law.

(dd) pasteurized donor human milk (PDHM), which may include fortifiers
as medically indicated, for inpatient use, for which a licensed medical
practitioner has issued an order for an infant who is medically or
physically unable to receive maternal breast milk or participate in
breast feeding or whose mother is medically or physically unable to
produce maternal breast milk at all or in sufficient quantities or
participate in breast feeding despite optimal lactation support. Such
infant shall: (i) have a documented birth weight of less than one
thousand five hundred grams; or (ii) have a congenital or acquired
condition that places the infant at a high risk for development of
necrotizing enterocolitis; or (iii) have a congenital or acquired
condition that may benefit from the use of donor breast milk as
determined by the commissioner of health or his or her designee.

(ee) Medical assistance shall include the coverage of a set of
services to ensure improved outcomes of women who are in the process of
ovulation enhancing drugs, limited to the provision of such treatment,
office visits, hysterosalpingogram services, pelvic ultrasounds, and
blood testing; services shall be limited to those necessary to monitor
such treatment. In the event that ninety percent federal financial
participation for such services is not available, the state share of
appropriations related to these services shall be used for a grant
program intended to accomplish the purpose of this section.

(ff) evidence-based prevention and support services recognized by the
federal Centers for Disease Control (CDC), provided by a community-based
organization, and designed to prevent individuals at risk of developing
diabetes from developing Type 2 diabetes.

(gg) addiction and mental health services and supports provided by
facilities licensed pursuant to article thirty-six of the mental hygiene
law.

(hh) The commissioner is authorized to establish one or more maternal
health promotion pilot programs in one or more counties or regions of
the state, for the purpose of providing Medicaid reimbursement of the
prenatal maternal childbirth education and preparation classes for
enrollees, and transportation to and from such classes, for the purpose
of improving maternal outcomes and reducing maternal-infant mortality.
The commissioner is authorized to establish fees for the reimbursement
of such classes, subject to the approval of the state director of the
budget.

3. Any inconsistent provisions of this section notwithstanding,
medical assistance shall include:

(a) early and periodic screening and diagnosis of eligible persons
under six years of age and, in accordance with federal law and
regulations, early and periodic screening and diagnosis of eligible
persons under twenty-one years of age to ascertain physical and mental
disabilities; and

(b) care and treatment of disabilities and conditions discovered by
such screening and diagnosis including such care, services and supplies
as the commissioner shall by regulation require to the extent necessary
to conform to applicable federal law and regulations.

(c) screening, diagnosis, care and treatment of disabilities and
conditions discovered by such screening and diagnosis of eligible
persons ages three to twenty-one, inclusive, including such care,
services and supplies as the commissioner shall by regulation require to
the extent necessary to conform to applicable federal law and
regulations, provided that such screening, diagnosis, care and treatment
shall include the provision of evaluations and related services rendered
pursuant to article eighty-nine of the education law and regulations of
the commissioner of education by persons qualified to provide such
services thereunder.

(d) family planning services and twelve months of supplies for
eligible persons of childbearing age, including children under
twenty-one years of age who can be considered sexually active, who
desire such services and supplies, in accordance with the requirements
of federal law and regulations and the regulations of the department.
Coverage of prescription contraceptives shall include a twelve-month
supply that may be dispensed at one time or up to twelve times within
one year from the date of the prescription. No person shall be compelled
or coerced to accept such services or supplies.

4. Any inconsistent provision of law notwithstanding, medical
assistance shall not include, unless required by federal law and
regulation as a condition of qualifying for federal financial
participation in the medicaid program, the following items of care,
services and supplies:

(a) drugs which may be dispensed without a prescription as required by
section sixty-eight hundred ten of the education law; provided, however,
that the state commissioner of health may by regulation specify certain
of such drugs which may be reimbursed as an item of medical assistance
in accordance with the price schedule established by such commissioner.
Notwithstanding any other provision of law, additions to the list of
drugs reimbursable under this paragraph may be filed as regulations by
the commissioner of health without prior notice and comment;

(a-1) (i) a brand name drug for which a multi-source therapeutically
and generically equivalent drug, as determined by the federal food and
drug administration, is available, unless previously authorized by the
department of health. The commissioner of health is authorized to
exempt, for good cause shown, any brand name drug from the restrictions
imposed by this subparagraph;

(ii) notwithstanding the provisions of subparagraph (i) of this
paragraph, the commissioner is authorized to deny reimbursement for a
generic equivalent, including a generic equivalent that is on the
preferred drug list or the clinical drug review program, when the net
cost of the brand name drug, after consideration of all rebates, is less
than the cost of the generic equivalent, unless prior authorization is
obtained under section two hundred seventy-three of the public health
law;

(a-2) drugs which may not be dispensed without a prescription as
required by section sixty-eight hundred ten of the education law, and
which are non preferred drugs pursuant to section two hundred
seventy-two of the public health law, or the clinical drug review
program under section two hundred seventy-four of the public health law,
unless prior authorization is granted or not required;

(b) care and services of chiropractors and supplies related to the
practice of chiropractic, except as provided for by the commissioner
pursuant to a pilot program approved under federal law and regulation;

(c) care and services of an optometrist for using drugs in excess of
the maximum reimbursable amounts for optometric care and services
established by the commissioner and approved by the director of the
budget;

(d) any medical care, services or supplies furnished outside the
state, except, when prior authorized in accordance with department
regulations or for care, services and supplies furnished: as a result of
a medical emergency; because the recipient's health would have been
endangered if he or she had been required to travel to the state;
because the care, services or supplies were more readily available in
the other state; or because it is the general practice for persons
residing in the locality wherein the recipient resides to use medical
providers in the other state;

(e) drugs, procedures and supplies for the treatment of erectile
dysfunction when provided to, or prescribed for use by, a person who is
required to register as a sex offender pursuant to article six-C of the
correction law, provided that any denial of coverage pursuant to this
paragraph shall provide the patient with the means of obtaining
additional information concerning both the denial and the means of
challenging such denial; or

(f) drugs for the treatment of sexual or erectile dysfunction, unless
such drugs are used to treat a condition, other than sexual or erectile
dysfunction, for which the drugs have been approved by the federal food
and drug administration.

(g) for eligible persons who are also beneficiaries under part D of
title XVIII of the federal social security act, drugs which are
denominated as "covered part D drugs" under section 1860D-2(e) of such
act.

(h) opioids prescribed in violation of the treatment plan standards of
subdivision eight of section thirty-three hundred thirty-one of the
public health law or treatment plan standards as otherwise required by
the commissioner.

5. (a) Medical assistance shall include surgical benefits for
emergency or urgent surgery for the alleviation of severe pain, for
immediate diagnosis or treatment of conditions which threaten disability
or death if not promptly diagnosed or treated.

(b) Medical assistance shall include surgical benefits for certain
surgical procedures which meet standards for surgical intervention, as
established by the state commissioner of health on the basis of
medically indicated risk factors, and medically necessary surgery where
delay in surgical intervention would substantially increase the medical
risk associated with such surgical intervention.

(c) Medical assistance shall include surgical benefits for other
deferrable surgical procedures specified by the state commissioner of
health, based on the likelihood that deferral of such procedures for six
months or more may jeopardize life or essential function, or cause
severe pain; provided, however, such deferrable surgical procedures
shall be included in the case of in-patient surgery only when a second
written opinion is obtained from a physician, or as otherwise
prescribed, in accordance with regulations established by the state
commissioner of health, that such surgery should not be deferred.

(d) Medical assistance shall include a maximum of one patient day of
pre-operative hospital care for surgery authorized by paragraphs (b) or
(c) of this subdivision; provided, however, that with respect to
specific surgical procedures which the state commissioner of health has
identified as requiring more than one patient day of pre-operative care,
medical assistance shall include such longer maximum period of
pre-operative care as such commissioner has identified as necessary.

(e) Medical assistance shall not include any in-patient surgical
procedures or any care, services or supplies related to such surgery
other than those authorized by this subdivision.

6. Any inconsistent provision of law notwithstanding, medical
assistance shall also include payment for medical care, services or
supplies furnished to eligible pregnant women pursuant to paragraph (o)
of subdivision four of section three hundred sixty-six and subdivision
six of section three hundred sixty-four-i of this title, to the extent
that and for so long as federal financial participation is available
therefor; provided, however, that nothing in this section shall be
deemed to affect payment for such medical care, services or supplies if
federal financial participation is not available for such care, services
and supplies solely by reason of the immigration status of the otherwise
eligible pregnant woman.

7. Medical assistance shall also include disproportionate share
payments to general hospitals under the public health law.

8. When a non-governmental entity is authorized by the department
pursuant to contract or subcontract to make prior authorization or prior
approval determinations that may be required for any item of medical
assistance, a recipient may challenge any action taken or failure to act
in connection with a prior authorization or prior approval determination
as if such determination were made by a government entity, and shall be
entitled to the same medical assistance benefits and standards and to
the same notice and procedural due process rights, including a right to
a fair hearing and aid continuing pursuant to section twenty-two of this
chapter, as if the prior authorization or prior approval determination
were made by a government entity, without regard to expiration of the
prior service authorization.

9. (a) Notwithstanding any inconsistent provision of law, any
utilization controls on occupational therapy or physical therapy,
including but not limited to, prior approval of services, utilization
thresholds or other limitations imposed on such therapy services in
relation to a chronic condition in clinics certified under article
twenty-eight of the public health law or article sixteen of the mental
hygiene law shall be: (i) developed by the department of health in
concurrence with the office for people with developmental disabilities;
and (ii) in accord with nationally recognized professional standards. In
the event that nationally recognized professional standards do not
exist, such thresholds shall be based upon the reasonably recognized
professional standards of those with a specific expertise in treating
individuals served by clinics certified under article twenty-eight of
the public health law or article sixteen of the mental hygiene law.

(b) Prior approval by the department of health of a physical therapy
evaluation or an occupational therapy evaluation by a qualified
practitioner practicing within the scope of such practitioner's
licensure shall not be required. The department may require prior
approval for treatment as recommended by such an evaluation. In the
event that prior approval is required, and the department fails to make
a determination within eight days of presentation of a treatment request
for physical or occupational therapy services, the department shall
automatically approve four therapy visits. In the case of any denial of
a prior approval request for physical therapy or occupational therapy,
the department shall provide a reasonable opportunity for the qualified
practitioner to provide his or her assessment of the beneficiary's
physical and functional status as documented in a treatment plan with
reasonable and obtainable goals. If, upon completion of such four
therapy visits, the department has not yet rendered a determination on
the request for physical or occupational therapy services, the
department shall automatically approve an additional four therapy
visits. Subsequent automatic approvals shall be issued in the same
manner until such time as the department issues a determination, but in
no event shall such approvals exceed the number of services or the
period of time recommended by the evaluation. If the qualified
practitioner provides documentation that is in accord with reasonably
recognized professional standards, the recommended treatment plan shall
be final, and the prior approval request shall be approved.

10. The department of health shall establish or procure the services
of an independent assessor or assessors no later than October 1, 2022,
in a manner and schedule as determined by the commissioner of health, to
take over from local departments of social services, Medicaid Managed
Care providers, and Medicaid managed long term care plans performance of
assessments and reassessments required for determining individuals'
needs for personal care services, including as provided through the
consumer directed personal assistance program, and other services or
programs available pursuant to the state's medical assistance program as
determined by such commissioner for the purpose of improving efficiency,
quality, and reliability in assessment and to determine individuals'
eligibility for Medicaid managed long term care plans. Notwithstanding
the provisions of section one hundred sixty-three of the state finance
law, or sections one hundred forty-two and one hundred forty-three of
the economic development law, or any contrary provision of law,
contracts may be entered or the commissioner may amend and extend the
terms of a contract awarded prior to the effective date and entered into
pursuant to subdivision twenty-four of section two hundred six of the
public health law, as added by section thirty-nine of part C of chapter
fifty-eight of the laws of two thousand eight, and a contract awarded
prior to the effective date and entered into to conduct enrollment
broker and conflict-free evaluation services for the Medicaid program,
if such contract or contract amendment is for the purpose of procuring
such assessment services from an independent assessor; provided,
however, in the case of a contract entered into after the effective date
of this section, that:

(a) The department of health shall post on its website, for a period
of no less than thirty days:

(i) A description of the proposed services to be provided pursuant to
the contract or contracts;

(ii) The criteria for selection of a contractor or contractors
including, but not limited to, being unaffiliated with any entity
certified under article forty-four of the public health law or any
service provider licensed under article thirty-six of the public health
law, demonstrated cultural and linguistic competence, experience in
evaluating the service needs of individuals with disabilities seeking to
live in the community, and demonstrated compliance with all applicable
state and federal laws. Furthermore, the selection criteria shall
consider and give preference to whether a prospective contractor is a
not-for-profit organization;

(iii) The period of time during which a prospective contractor may
seek selection, which shall be no less than thirty days after such
information is first posted on the website; and

(iv) The manner by which a prospective contractor may submit a
proposal for selection, which may include submission by electronic
means;

(b) All reasonable and responsive submissions that are received from
prospective contractors in a timely fashion shall be reviewed by the
commissioner of health;

(c) The commissioner of health shall select such contractor or
contractors that are best suited to serve the purposes of this section
and the needs of recipients; and

(d) All decisions made and approaches taken pursuant to this section
shall be documented in a procurement record as defined in section one
hundred sixty-three of the state finance law.