Part 505 - MEDICAL CARE

Doc Status: 
Complete
Effective Date: 
Wednesday, June 5, 2019
Statutory Authority: 
Social Services Law, Sections 20, 34, 131, 358, 363, 363-a, 364, 365-a, 365-b, 367-a, 367-c, 367-e, 367-j, 367-k, 368-a, 368-d, 368-e; Chapter 428 of the laws of 1992

Section 505.1 - Scope of medical assistance.

Section 505.1 Scope of medical assistance. (a) Services available. (1) Medical care, services and supplies available to eligible persons must, except to the extent that such medical care, services and supplies are certified as inappropriate, unnecessary or otherwise not authorized by the Commissioner of Health or his or her designee and except as provided in subdivision (b) of this section, include the following:

(i) services of qualified physicians, dentists, nurses, optometrists and other related professional personnel;

(ii) care, treatment, maintenance and nursing services in hospitals, skilled nursing facilities that qualify as, or have applications pending to become, providers in the Medicare program pursuant to title XVIII of the Federal Social Security Act, or other eligible institutions, and health-related care and services in intermediate care facilities, while such institutions and facilities are operated in compliance with applicable provisions of law and to the extent authorized by this Subchapter. However, no medical assistance payment will be authorized for care provided after December 31, 1977 in skilled nursing facilities which have participated in title XIX since September 1, 1976, but for whom title XVIII certification is still lacking, except for those skilled nursing facilities providing solely pediatric care;

(iii) services to ensure improved outcomes of women ages 21 through 44 experiencing infertility, limited to ovulation enhancing drugs, office visits, hysterosalpingogram services, pelvic ultrasounds, and blood testing.

(2) Medical care, services and supplies available to a recipient, who is eligible for medical assistance (MA) solely as a result of being eligible for or in receipt of Home Relief (HR) and who is at least 21 years of age but under the age of 65, except to the extent that such medical care, services and supplies are certified as inappropriate, unnecessary or otherwise not authorized by the Commissioner of Health or his or her designee, include the following only if such recipient is enrolled in a health maintenance organization or other entity which provides comprehensive health services, a managed care program or other primary provider program as specified by the Department, or a voluntary medical care coordinator program (MCCP):

(i) home health services;

(ii) personal care;

(iii) physical, speech and occupational therapy;

(iv) transportation;

(v) private duty nursing;

(vi) optometric care;

(vii) audiology services;

(viii) clinical psychology;

(ix) orthotic devices;

(x) sick room supplies; and

(xi) nursing home in-patient care unless the recipient was an in-patient nursing home resident on July 1, 1992.

(b) Authorization for medical services and supplies. The identification card issued to a person eligible for medical assistance shall constitute full authorization for providing any medical services and supplies for which the person is eligible under title 11 of article 5 of the Social Services Law except when:

(1) medical services and supplies, in accordance with the regulations of the department, routinely require:

(i) prior approval of a local professional director; or

(ii) prior authorization of the social services official; or

(iii) certification by the Commissioner of Health or his designee;

(2) the identification card on its face:

(i) restricts an individual recipient to a single provider; or

(ii) requires prior authorization for all ambulatory medical services and supplies except emergency care; or (3) the service exceeds benefit limitations as established by the department.

Doc Status: 
Complete
Effective Date: 
Wednesday, June 5, 2019
Statutory Authority: 
Social Services Law, Section 365-a(2)(ee)

Section 505.2 - Physicians' services.

505.2 Physicians' services. (a) General policies. Care provided by physicians to eligible persons shall not be reimbursable as an item of medical assistance when such care does not meet the standards for coverability pursuant to Part 85 of Department of Health regulations or when such care does not meet the definition of medical care or is not considered to be an available service as defined in this Subchapter.

(1) Qualifications of physicians. Physicians shall be licensed and currently registered by the New York State Education Department, or, if in practice in another state, by the appropriate agency of that state. In addition thereto, services ordinarily performed by general practitioners shall be provided only by physicians meeting the qualifications set forth in subparagraph (i) of this paragraph and services ordinarily performed by specialists shall be provided only by physicians meeting the qualifications set forth in subparagraph (ii) of this paragraph.

(i) Qualifications of general practitioners. A general practitioner is a physician who:

(a) is a member of the active or attending staff at a hospital holding a valid operating certificate from the New York State Department of Health; or

(b) is a member in good standing of the American Academy of General Practice or of the American College of General Practitioners in Osteopathic Medicine and Surgery; or

(c) has given satisfactory evidence of completion of a total of 150 hours of continuation education over a three-year period based on standards approved by the State Commissioner of Health in accordance with the following:

(1) not less than 50 hours of the 150 hours required shall be attendance at planned instruction which shall include one or more of the following:

(i) courses conducted by a medical school or school of osteopathy;

(ii) planned continuation education preceptorships or similar practical training approved on an individual basis by the Medical Society of the State of New York or the New York State Osteopathic Society, jointly with the Office of Medical Manpower of the State Department of Health;

(iii) for not more than 20 hours' credit in any given year, preparation and/or presentation of acceptable scientific exhibits or papers evaluated by the Medical Society of the State of New York or the New York State Osteopathic Society, jointly with the Office of Medical Manpower of the State Department of Health;

(iv) continuation education approved for this purpose by the Medical Society of the State of New York or the New York State Osteopathic Society, jointly with the Office of Medical Manpower of the State Department of Health;

(2) the remaining 100 hours of continuation education shall be satisfied by allowing credit on an hour-for-hour basis for attendance at specific scientific meetings, such as the following:

(i) attendance at meetings of medical groups, such as local, State or national, including but not limited to county medical societies, county osteopathic societies, academies of medicine, academies of general practice, district and State medical societies, district and State osteopathic societies, specialty medical meetings and meetings of the American Medical Association and of the American Osteopathic Association;

(ii) attendance at scientific programs, hospital staff meetings or similar medical meetings;

(iii) teaching responsibilities in a teaching hospital or in a medical school, a nursing school or other accredited school which teaches some branch of the health sciences; (iv) as a preceptor for medical students;

(v) other continuation education activities accepted by the Office of Professional Education of the State Department of Health, jointly with the Medical Society of the State of New York or the New York State Osteopathic Society, as meeting these requirements.

(d) Physicians not possessing the above qualifications shall be given not less than one year, from a date to be determined by the State Commissioner of Health, to meet the qualifications.

(e) If qualification is to be achieved by approved continuation education as provided for in clause (c) of this subparagraph, the physician shall complete such continuation education within three years of the date specified in clause (d).

(f) In extenuating circumstances involving personal or family illness or disability, health emergencies or epidemics in the community endangering the public health, or unavailability of adequate medical coverage through other sources, the above requirements may be waived for any individual physician at the discretion of the State Commissioner of Health.

(ii) Qualifications of specialists. A specialist is a licensed physician who has submitted his or her credentials to the Office of Health Systems Management for review, has been designated a specialist by that office, and who, on the basis of standards approved by the State Commissioner of Health: (a) is a diplomate of the appropriate American board, or osteopathic board; or

(b) has been notified of admissibility to examination by the appropriate American board, or osteopathic board, or presents evidence of completion of an appropriate qualifying residency approved by the American Medical Association or American Osteopathic Association; or

(c) holds an active staff appointment, with specialty privileges, in a voluntary or governmental hospital which is approved for training in the specialty in which the physician has privileges; or

(d) in psychiatry, a physician may be recognized as a specialist if he satisfies the following additional alternatives:

(1) has been chief or assistant chief psychiatrist in an approved psychiatric clinic and who is recommended for approval by the director of psychiatry of the community mental health board; or

(2) who graduated from medical school prior to July 1, 1946, and who during the last five years has restricted his practice essentially to psychiatry, and is certified by the Commissioner of Mental Hygiene after approval by a committee of the New York State Council of District Branches of the American Psychiatric Association appointed for this purpose by the president of the council.

(b) Dispensary and clinic services and care. (1) Dispensary and clinic services may be utilized for complete office care, including services by general practitioners and specialists, or may be utilized for special diagnostic, therapeutic or rehabilitative procedures.

2) Dispensary and/or clinic care shall be provided only in facilities which are operated in compliance with applicable provisions of law and the State Hospital Code.

(c) Specialists. (1) In addition to the services of general practitioners, the services of specialists and consultants shall be provided when required.

(2) Services ordinarily interpreted to be specialist procedures shall be provided only by physicians qualified as specialists in accordance with this section.

(d) Obstetrical care. Obstetrical care shall include prenatal care in a physician's office or dispensary, delivery in the home or hospital, post-partum care, and, in addition, care for any complications that arise in the course of pregnancy and/or the puerperium.

(e) Abortion. (1) Definition. An abortional act is the procedure or procedures by which an abortion is induced and completed; this being either medical, surgical or both, the words abortional act refer to either or both.

(2) Where care may be provided. An abortional act shall be performed subject to the requisites set forth in 10 NYCRR 12.20.

(3) Who may provide service. (i) An abortional act is an obstetrical procedure and shall be performed only by a physician with a currently valid license to practice medicine and surgery in the State of New York and in accordance with the medical staff rules of the hospital or qualifying facility where the abortional act is performed.

(ii) No physician or other person shall be required to perform or participate in a medical or surgical procedure which may result in the termination of a pregnancy.

(4) Establishment of diagnosis of pregnancy. Prior to the performance of an abortional act, positive evidence of pregnancy by test result, history and physical examination or other reliable means shall be recorded on the patient's medical chart, with an estimate of the duration of the pregnancy.

(f) Chronic hemodialysis service in the home. Provision of chronic hemodialysis service in the home shall be based on the recommendation for such home treatment plan from a renal dialysis center or renal dialysis facility and shall require prior approval of the local professional director, except as provided for in section 505.30 of this Part.

(g) Methadone treatment. (1) Methadone maintenance treatment. Methadone maintenance treatment shall be provided only by physicians, groups of physicians or medical facilities authorized to administer methadone to addicts under a program authorized by State and Federal authorities in accordance with the provisions of 10 NYCRR 80.23. Medical facilities in this subdivision shall mean:

(i) the outpatient service of a hospital with a valid operating certificate; and

(ii) an independent out-of-hospital health facility possessing a valid operating certificate as provided for in article 28 of the Public Health Law or such a facility approved, as appropriate, by the State Department of Mental Hygiene.

(2) Interim methadone treatment. Interim methadone treatment of a drug addict who is on a waiting list for admission to a narcotic facility conducting an authorized methadone maintenance program may be provided by an approved medical facility or by a private physician in accordance with the provisions of 10 NYCRR 80.22.

(3) Reimbursement for methadone treatment and for interim treatment.

(i) Reimbursement for methadone treatment by medical facilities shall be at rates promulgated by the State Director of the Budget.

(ii) Reimbursement for methadone treatment by a private physician shall be in accordance with the applicable fee schedule.

(iii) Methadone dispensed by a private physician shall be reimbursable at cost.

(h) Payment for hysterectomy. (1) Payment is not available for a hysterectomy if:

(i) it is performed solely for the purpose of rendering an individual permanently incapable of reproducing; or

(ii) if there was more than one purpose to the procedure, it would not have been performed but for the purpose of rendering the individual permanently incapable of reproducing.

(2) Payment is available for a hysterectomy not excluded by paragraph (1) of this subdivision, if:

(i) the person who secured authorization to perform the hysterectomy has informed the individual and her representative, if any, orally and in writing, that the hysterectomy will make the individual permanently incapable of reproducing, and the individual or her representative, if any, has signed a written acknowledgment of receipt of such information; or

(ii) the physician who performed the hysterectomy certifies that one of the following conditions existed:

(a) the woman was sterile before the hysterectomy was performed;

(b) the hysterectomy was performed in a life-threatening emergency in which prior acknowledgment by the recipient was not possible; or

(c) the woman was not a recipient of medical assistance at the time the hysterectomy was performed but subsequently applied for medical assistance and was determined to qualify for medical assistance payment of medical bills incurred before her application, and the woman was informed before the hysterectomy that the procedure would make her permanently incapable of reproducing.

(i) Utilization threshold. (1) This subdivision describes the utilization threshold that the department has established for physician and clinic services. Part 503 of this Title authorizes the department to establish a utilization threshold for specific provider service types including physician and clinic services. Part 503 also describes the application of the utilization threshold, the services and procedures excluded from the utilization threshold for all provider service types subject to a threshold, the method for obtaining an exemption from or increase in the utilization threshold, notices, and the right to a fair hearing in certain situations.

(2) General rules. The department will pay for up to 14 physician and clinic service encounters in a benefit year. As used in this subdivision, the term clinic means hospital outpatient departments, free-standing diagnostic and treatment centers and hospital emergency rooms. As used in this subdivision, the term encounter is defined as follows:

(i) all medical care, services and supplies received during a visit with a physician, a physician's assistant, a specialist or a specialist's assistant, unless excluded by paragraph (3) of this subdivision; or

(ii) all medical care, services and supplies received during a visit to a clinic certified under Article 28 of the Public Health Law, unless excluded by paragraph (3) of this subdivision.

(3) Exclusions. In addition to those services and procedures generally excluded from any utilization threshold by Section 503.4 of this Title, the following services are excluded from the utilization threshold established by this subdivision:

(i) Physician services.

(a) anesthesiology services; and

(b) psychiatric services.

(ii) Clinic services.

(a) mental health services, alcoholism treatment services, and mental retardation and developmental disability treatment services provided in clinics certified under Article 28 of the Public Health Law or Article 31 of the Mental Hygiene Law;

(b) ambulatory services ordered by a qualified practitioner;

(c) services provided in a physically handicapped children's program speech and hearing clinic; and

(d) services provided in a physically handicapped children's amputee center.

(4) The department will pay for services provided in hospital emergency rooms as emergency services; however, each encounter counts as one service unit under the utilization threshold established by this subdivision.

(j) Payment is available for physicians' services which are part of the development of, or furnished pursuant to, an individualized education program and which are provided by a physician employed by, or under contract to, a school district, an approved pre-school, a county in the State or the City of New York. Reimbursement for such services must be in accordance with the provider agreement.

(k) Payment is available for physicians' services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and which are provided by a physician employed by, or under contract to, an approved early intervention program or a municipality in the State. Reimbursement for such services must be in accordance with the provider agreement.

(l) Gender dysphoria treatment.

(l) As provided in this subdivision, payment is available for medically necessary hormone therapy and/or gender reassignment surgery for the treatment of gender dysphoria.

(2) (i) Hormone therapy, whether or not in preparation for gender reassignment surgery, shall be covered as follows:

(a) treatment with gonadotropin-releasing hormone agents (pubertal suppressants), based upon a determination by a qualified medical professional that an individual is eligible and ready for such treatment, i.e., that the individual:

(1) meets the criteria for a diagnosis of gender dysphoria;

(2) has experienced puberty to at least Tanner stage 2, and pubertal changes have resulted in an increase in gender dysphoria;

(3) does not suffer from psychiatric comorbidity that interferes with the diagnostic work-up or treatment;

(4) has adequate psychological and social support during treatment; and

(5) demonstrates knowledge and understanding of the expected outcomes of treatment with pubertal suppressants and cross-sex hormones, as well as the medical and social risks and benefits of sex reassignment;

(b) treatment with cross-sex hormones for patients who are sixteen years of age and older, based upon a determination of medical necessity made by a qualified medical professional; patients who are under eighteen years of age must meet the applicable criteria set forth in clause (a).

(ii) Notwithstanding the requirement in clause (b) of subparagraph (i) of this paragraph that an individual be sixteen years of age or older, payment for cross-sex hormones for patients under sixteen years of age who otherwise meet the requirements of clause (b) of subparagraph (i) of this paragraph shall be made in specific cases if medical necessity is demonstrated and prior approval is received.

(3) (i) Gender reassignment surgery shall be covered for an individual who is 18 years of age or older and has letters from two qualified New York State licensed health professionals who have independently assessed the individual and are referring the individual for the surgery. One of these letters must be from a psychiatrist, psychologist, psychiatric nurse practitioner, or licensed clinical social worker with whom the individual has an established and ongoing relationship. The other letter may be from a psychiatrist, psychologist, physician, psychiatric nurse practitioner, or licensed clinical social worker acting within the scope of his or her practice, who has only had an evaluative role with the individual. Together, the letters must establish that the individual:

(a) has a persistent and well-documented case of gender dysphoria;

(b) has received hormone therapy appropriate to the individual's gender goals, which shall be for a minimum of 12 months in the case of an individual seeking genital surgery, unless such therapy is medically contraindicated or the individual is otherwise unable to take hormones;

(c) has lived for 12 months in a gender role congruent with the individual’s gender identity, and has received mental health counseling, as deemed medically necessary, during that time;

(d) has no other significant medical or mental health conditions that would be a contraindication to gender reassignment surgery, or if so, that those are reasonably well-controlled prior to the gender reassignment surgery; and

(e) has the capacity to make a fully informed decision and to consent to the treatment.

(ii) Notwithstanding subparagraph (i) of this paragraph, payment for gender reassignment surgery, services, and procedures for patients under eighteen years of age may be made in specific cases if medical necessity is demonstrated and prior approval is received.

(4) For individuals meeting the requirements of paragraph (3) of this subdivision, Medicaid coverage will be available for the following gender reassignment surgeries, services, and procedures, based upon a determination of medical necessity made by a qualified medical professional:

(i) mastectomy, hysterectomy, salpingectomy, oophorectomy, vaginectomy, urethroplasty, metoidioplasty, phalloplasty, scrotoplasty, penectomy, orchiectomy, vaginoplasty, labiaplasty, clitoroplasty, and/or placement of a testicular prosthesis and penile prosthesis;

(ii) breast augmentation, provided that: the patient has completed a minimum of 24 months of hormone therapy, during which time breast growth has been negligible; or hormone therapy is medically contraindicated; or the patient is otherwise unable to take hormones;

(iii) electrolysis when required for vaginoplasty or phalloplasty; and

(iv)  such other surgeries, services, and procedures as may be specified by the Department in billing guidance to providers.

(5) For individuals meeting the requirements of paragraph (3) of this subdivision, surgeries, services, and procedures in connection with gender reassignment not specified in paragraph (4) of this subdivision, or to be performed in situations other than those described in such paragraph, including those done to change the patient’s physical appearance to more closely conform secondary sex characteristics to those of the patient’s identified gender, shall be covered if it is demonstrated that such surgery, service, or procedure is medically necessary to treat a particular patient’s gender dysphoria, and prior approval is received. Coverage is not available for surgeries, services, or procedures that are purely cosmetic, i.e., that enhance a patient’s appearance but are not medically necessary to treat the patient’s underlying gender dysphoria. 

(6 All legal and program requirements related to providing and claiming reimbursement for sterilization procedures must be followed when transgender care involves sterilization.  

 

Doc Status: 
Complete
Effective Date: 
Wednesday, December 7, 2016
Statutory Authority: 
Public Health Law, Sections 201 and 206 and Social Services Law, Sections 363-a and 365-a(2)

Section 505.3 - Drugs

505.3 Drugs. (a) Definitions. (1) Compounded prescription means one in which two or more ingredients are mixed by the dispensing pharmacist. Medical assistance reimbursement for compounding is limited to the following:

(i) a combination of any two or more legend drugs found on the list of Medicaid reimbursable prescription drugs; or

(ii) a combination of any legend drugs included on the list of Medicaid reimbursable prescription drugs and any other item(s) not commercially available as an ethical or proprietary product(s); or

(iii) a combination of two or more products which are labeled "Caution: For Manufacturing Purposes only." The reconstitution of a commercially available drug is not a compounded prescription.

(2) Drug means both prescription and nonprescription drugs.

(3) Drug acquisition cost means the invoice price to the pharmacy of a prescription drug dispensed to a Medicaid recipient, minus the amount of all discounts and other cost reductions attributable to such dispensed drug.

(4) Nonprescription drug means any drug for which a prescription is not required under section 6810 of the Education Law, including over the counter, prepackaged items.

(5) Practitioner means a person licensed, authorized or otherwise permitted to write a prescription.

(6) Prescription drug means any drug for which a prescription is required under section 6810 of the Education Law.

(7) Written order or fiscal order are terms which are used interchangeably in this section and refer to any original, signed written order of a practitioner including any faxed transmitted order which requests a pharmacy to provide a drug to a medical assistance recipient. All written orders and fiscal orders shall comply with the provisions of Section 21 of the Public Health Law and regulations promulgated thereunder or contained in this section including but not limited to requirements for prescribing brand necessary drugs.

(b) Written order required. (1) Drugs may be obtained only upon the written order of a practitioner, except for non-prescription emergency contraceptive drugs as described in subparagraph (i) of this paragraph, and for telephone and electronic orders for drugs filled in compliance with this section and 10 NYCRR Part 910.

(i) Non-prescription emergency contraceptive drugs for females may be obtained without a written order subject to a utilization frequency limit of 6 courses of treatment in any 12-month period.

(ii) The ordering/prescribing of drugs is limited to the practitioner's scope of practice.

(ii) The ordering/prescribing of drugs is limited to practitioners not excluded from participating in the medical assistance program.

(2) All orders for drugs must show the ordering practitioner's name, address, telephone number, United States Drug Enforcement Agency (DEA) number (if applicable), and either the practitioner's MMIS provider identification number, the practitioner's license number or the certification number of the facility in which the drugs were ordered. All orders must also contain the name of the recipient for whom ordered.

(3) When used in the context of an order for a prescription drug, the order must also meet the requirements for a prescription under section 6810 of the Education Law and 10 NYCRR Part 910. When used in the context of a nonprescription drug, the order must also contain the following information: name of the drug; quantity ordered; strength or dosage; ingredient information, as necessary; directions for use; date ordered; and number of refills, if any.

(4) Telephone orders for prescription drugs permitted to be filled by subdivision (4) of section 6810 of the Education Law and non-prescription drugs are permitted.

(5) A telephone order must be recorded by the pharmacy in the format required by subdivision (4) of section 6810 of the Education Law, recording the time of the call and the initials of the person taking the call and the dispenser, prior to dispensing the drug. The pharmacist must label the drug as he/she would a written prescription, and make a good faith effort to verify the practitioner's identity, and validity of the prescription if the practitioner is unknown to the pharmacist. The practitioner must expressly state whether substitution is permitted or prohibited.

(6) Effective April 1, 2005 an order which requests a pharmacy to provide a drug to a Medical Assistance recipient may be electronically transmitted unless otherwise prohibited by law or regulation. All written orders and all orders which are electronically transmitted must comply with the relevant provision of the state education law and all regulations promulgated thereunder. It is the responsibility of the pharmacist to make a good faith effort to verify the practitioner’s identity and validity of the prescription if the practitioner is unknown to the pharmacist.

(7) On or after June 1, 2005 and after the Department has provided advance written notice to appropriate providers, all claims for payment of drugs provided under this section and submitted to the medical assistance program shall contain the serial number of the official New York State prescription form. Additionally, where serial numbers are available on Official NYS Prescription Forms for items not required to be ordered or prescribed on such forms, the billing pharmacy provider must enter such serial numbers on pharmacy claims submitted for payment to the MA program.

(c) Where obtained. Drugs may be obtained only from pharmacies which are properly registered by the State in which the pharmacy is located, or from the ordering practitioner. A pharmacy must keep on file the signed written order of the practitioner for audit by the department, or other authorized agency, for six years from the date of payment for any drug dispensed. A practitioner must annotate the patient record to reflect the dispensing of the drug and the quantity, dose, directions for use and number of refills, if any.

(d) Prescription refills. (1) A written order may not be refilled unless the practitioner has indicated the number of allowable refillings on the order.

(2) No written order for drugs may be refilled more than six months after the date of issuance, nor more than five times within a six month period, with the exception of prescription contraceptives for family planning purposes, which may be filled twelve times within one year after the date of issuance.

(3) Refills must bear the prescription number of the original written order.

(e) Prescribed quantities. (1) Drugs must be ordered in a quantity consistent with the health needs of the patient and sound medical practice.

(2) Dispensing limits for drugs. (i) Except as provided in subparagraph (ii) of this paragraph, the maximum quantity of drugs dispensed is limited to the larger of:

(a) a 30 day supply; or

(b) 100 doses. One hundred doses is 100 units of a solid formulation.

(ii) The dispensing limit does not apply to long-term maintenance drugs. Long-term maintenance drugs are:

(a) drugs ordered or prescribed with one or more refills in quantities of a 30-day supply or greater. The quantity ordered or prescribed must be based on generally accepted medical practice. The ordering practitioner must be contacted if dispensing the supply specified in the prescription would result in the medical assistance recipient receiving a quantity of drugs which exceeds the manufacturer's labeling indications; or

(b) drugs ordered or prescribed without refills in quantities of a 60-day supply or greater. The quantity ordered or prescribed must be based on generally accepted medical practice. The ordering practitioner must be contacted if dispensing the supply specified in the prescription would result in the medical assistance recipient receiving a quantity of drugs which exceeds the manufacturer's labeling indications; or

(c) drugs ordered or prescribed for family planning purposes. The quantity ordered or prescribed must be based on generally accepted medical practice. Prescription contraceptives for family planning purposes may be dispensed in a twelve-month supply at one time; or

(d) prescriptions written and dispensed on the official New York State Prescription form for up to a three-month supply when written in conformity with the Controlled Substance Act (Title IV of Article 33 of the Public Health Law).

(f) Payment for drugs. (1) The reimbursement amounts are payment in full.

(2) Drugs provided by a practitioner and billed separately will be paid for at the actual cost to the practitioner.

(3) The Department will pay each pharmacy enrolled in the MA program a dispensing fee for each prescription drug claim. Dispensing fees include routine delivery charges. The Department will pay an additional compounding fee of $.75 for each compounded prescription drug claim. The additional dispensing fee for a compounded prescription drug claim will not be paid when a manufacturer's specialty drug is reconstituted or when a non-medical or non-therapeutic agent is added to the prescription drug.

(4) Each pharmacy enrolled in the Medicaid program shall provide the department, in such manner, for such periods, and at such times as the department may require, with the drug acquisition cost, as defined in paragraph 505.3(a)(3), of prescription drugs.

(g) Limitations. (1) The department will pay for therapeutic vitamins and specific vitamin preparations only when ordered by a physician for the treatment of deficiency states or pathological conditions requiring increased vitamins.

(2) The department will pay for amphetamine and amphetamine-like substances (congeners) only when used in outpatient treatment of conditions other than obesity or weight reduction.

(3) No payment will be made for any drug which has weight reduction as its sole clinical use.  Payment for drugs used to promote fertility is limited to bromocriptine, clomiphene citrate, letrozole and tamoxifen, when receiving services pursuant to section 505.1(a)(1)(iii) of this Title, and subject to the FDA recommended and/or compendia-supported uses and limitations.

(4) From time to time the department may limit the frequency or the amount of drugs which may be ordered. The department may require prior approval or prior authorization of drugs. The department may allow for exceptions to prior approval or prior authorization requirements in emergency circumstances. Emergency circumstances for purposes of this paragraph means any condition requiring alleviation of severe pain or which threatens to cause disability or take life if not promptly treated. The department will advise practitioners and pharmacies in writing before any reduction in frequency or amount, prior authorization or prior approval is imposed on any drug.

(h) Utilization threshold. (1) This subdivision describes the utilization threshold that the department has established for pharmacy services. Part 503 of thisTitle authorizes the department to establish a utilization threshold for specific provider service types, including pharmacy services. Part 503 also describes the application of the utilization threshold, services and procedures excluded from the utilization threshold for all provider service types subject to a threshold, the method for obtaining an exemption from or increase in the utilization threshold, notices, and the right to a fair hearing in certain situations.

(2) General rules. (i) Federally nonparticipating persons. Payment will be made for up to 43 pharmacy service formulary codes in a benefit year for persons who belong to a group listed in section 360-3.3(a)(1) or 360-3.3(b)(7) of this Title.

(ii) Federally participating persons. Payment will be made for up to 60 pharmacy service formulary codes in a benefit year for persons who belong to a group listed in section 360-3.3(a)(2)-(6), 360-3.3(b)(1)-(6) or 360-3.3(b)(3) of this Title.

(3) Formulary codes. As used in this subdivision, a formulary code is defined as follows:

(i) for prescription drugs, the first time a prescription is filled is one formulary code; each refill of the original prescription is also one formulary code; and

(ii) for nonprescription drugs and medical and surgical supplies, each initial fiscal order for the drug or supply is one formulary code; each refill of the fiscal order is also one formulary code.

(i) The Department may, after completing a competitive request for proposal (RFP) process, contract with mail-order pharmacies or their corporate owners to supply prescription and nonprescription drugs and medical/surgical supplies by mail to medical assistance (MA) recipients. The department may elect to offer mail-order pharmacy services in one or more social services districts through a contractor selected after completion of the RFP process. Individuals who are furnished MA by such districts who are not restricted in their access to drugs or medical/surgical supplies and who are not patients in residential health care facilities or any other facilities which have pharmaceuticals included in their medical assistance payments may choose to receive long-term maintenance drugs, excepting drugs prohibited pursuant to Article 33 of the Public Health Law, nonprescription drugs and medical/surgical supplies by mail from contractors selected through the RFP process to provide such drugs and supplies.

Doc Status: 
Complete
Effective Date: 
Wednesday, June 5, 2019
Statutory Authority: 
Public Health Law, Section 201(1)(v) & Social Services Law, Sections 363-a(2) and 367-a(9)(b)

Section 505.4 - Hospital services.

505.4 Hospital services. (a) Definition. Inpatient hospital care shall include, except as otherwise specified, the care, treatment, maintenance and nursing services as may be required on an inpatient basis and certified to be covered by the Commissioner of Health or his designee under the regulations of the State Department of Health.

(b) Exclusions. (1) Care, treatment, maintenance and nursing services for individuals admitted to a general hospital on Friday or Saturday shall be deemed to include only those inpatient days beginning with and following the Sunday after such date of such admission unless such periods of time are determined to be covered benefits pursuant to Part 85 of Department of Health's regulations or are rendered by general hospitals determined by the Commissioner of Health to be rendering full service on a seven-day-a-week basis.

(2) Care, treatment, maintenance and nursing services for uncomplicated procedures which may be performed on an outpatient basis in accordance with regulations issued by the Commissioner of Health, unless the Commissioner of Health or his designee determines that the medical condition of the individual patient requires that the procedure be performed on an in-patient basis.

(c) Effective May 1, 1992, payment for in-patient hospital services furnished to a recipient who is eligible for medical assistance (MA) solely as a result of being eligible for or in receipt of Home Relief

(HR) and who is at least 21 years of age but under the age of 65 will be made only for a total of 32 days in any consecutive 12 month period unless such services are provided to the recipient through enrollment in a program which receives full capitation payments. No hospital providing in-patient services to a recipient may discharge the recipient soley because the maximum number of reimbursable in-patient service days has been received.

(d) Where care may be provided. (1) Instate hospital care.

(i) Inpatient hospital service shall be provided in a public, incorporated (nonprofit) or proprietary hospital which is in possession of a valid operating certificate issued in accordance with the provisions of article 28 of the Public Health Law.

(ii) In addition, such hospital shall be qualified to participate under title XVIII of the Federal Social Security Act or be determined currently to meet the requirements for such participation and shall have in effect a hospital utilization review plan applicable to all patients who receive medical assistance; provided, however, emergency hospital services may be provided in a hospital which does not currently meet such requirements when such services are necessary to prevent the death or serious impairment of the health of the individual and which, because of the threat to the life or health of the individual, necessitate the use of the most accessible hospital available which is equipped to furnish such services.

(2) Hospital care under the medical assistance program also includes:

(i) care for the mentally ill and those with tuberculosis who are 65 years of age or over and who are in public institutions primarily or exclusively for the treatment of mental illness or tuberculosis, respectively.

(ii) care for the mentally retarded in nursing homes or health-related facilities, including such facilities for the mentally retarded exclusively; or in the nursing home or health-related facility sections of institutions for the mentally retarded;

(iii) care for the mentally ill individuals under 21 years of age in any institution or facility operated primarily or exclusively for the mentally ill when such institution or facility is operated by the State Department of Mental Hygiene or is currently certified by that department and accredited as a psychiatric hospital by the Joint Commission on Accreditation of Hospitals; when inpatient services involve active treatment which meet standards of Federal regulations; and when a team consisting of physicians and other personnel qualified to make determinations with respect to mental health conditions has determined inpatient care as necessary and that care can reasonably be expected to improve the condition to the extent that eventually such services will no longer be necessary. In the case of a person who during the course of hospitalization attains the age of 21, such services may continue until he reaches the age of 22;

(iv) care for individuals 65 years of age or over in hospitals primarily or exclusively for the care of the mentally ill, which are certified by the State Department of Mental Hygiene and accredited by the Joint Commission on Accreditation of Hospitals and meet standards prescribed by applicable Federal regulations. The extent of medical assistance coverage of such care shall be limited to supplementation of the available medicare benefits by payment of the deductible and coinsurance liabilities of that program; and

(v) hospital care for mentally disabled persons under the medical assistance program shall not include care in institutions or facilities primarily or exclusively for treatment of mental disabilities except as provided for in this paragraph.

(e) Out-of-state hospital care. (1) When hospital inpatient services are provided in a hospital located outside New York State, such hospital shall be in compliance with applicable licensing or approval requirements established by the officially designated standard setting authority in the state where the care was received.

(2) In addition, such hospital shall be qualified to participate under Title XVIII of the Federal Social Security Act or be determined currently to meet the requirements for such participation and shall have in effect a hospital utilization review plan applicable to all patients who receive medical assistance; provided however, emergency hospital services may be provided in a hospital which does not currently meet such requirements when such services are necessary to prevent the death or serious impairment of the health of the individual and which because of the threat to the life or health of the individual necessitate the use of the most accessible hospital available which is equipped to furnish such services.

(f) Hospital's required notification of admission. Hospitals shall notify the appropriate public welfare official, if required by such official, of the admission of any person who presents a medical assistance identification card or other appropriate evidence indicating he has been determined to be eligible for medical assistance, within five days of such admission, Saturdays, Sundays and legal holidays excluded, so that the public welfare official may prepare to take the steps necessary for the payment of the hospital's charges for the care of such person.

(g) Authorization for inpatient hospital care. (1) The identification card issued to persons eligible for medical assistance shall constitute authorization for necessary inpatient hospital care in facilities operated in compliance with applicable law and meeting appropriate standards therefor, subject to the requirements and limitations included in this Subchapter.

(2) (i) Certification by a physician of the patient's need for inpatient hospital services shall be obtained upon admission, or if later, upon application for medical assistance.

(ii) Recertification by a physician of the need for continued inpatient hospital care shall be made as required by the Commissioner of Health on or before the 60th day of the patient's inpatient hospital stay.

(iii) The documentation and information required by Department of Health regulation 405.24(c) shall satisfy the requirement of subparagraphs (i) and (ii) of this paragraph.

(iv) Certification by the Commissioner of Health or his designee that care, services and supplies are covered benefits shall be required for all inpatient hospital care in accordance with Part 85 of the Health Department regulations.

(3) A review of the necessity of admission and continued stay and other reviews shall be conducted in accordance with applicable regulations of the State Department of Health.

(4) In addition to the certifications, recertifications and reviews required by paragraph (2) of this section and section 505.20 of this Part, the attending physician and hospital shall provide the Commission er of Health or his designee on a timely basis, documentation to support the necessity and appropriateness of the patient's admission, continued stay and/or need for surgery pursuant to Part 85 of the Department of Health regulations.

(5) A plan of care for each medical assistance patient shall be established and periodically evaluated by a physician and shall be maintained by the hospital. The documentation and information required by regulations of the State Department of Health shall satisfy the plan of care requirement.

(6) Hospital claims submitted for payment on discharge of the patient shall be in accordance with section 540.6 of this Subchapter and shall not be processed for payment unless supported by a form signed by a responsible member of the hospital staff and containing such information as the department may require, including a statement confirming certifications required by this subdivision and section 505.20 of this Part were executed as needed and are available for review in the hospital.

(7) The hospital utilization review committee shall, in addition to the reviews required by paragraph (5) of this subdivision, conduct medical care evaluation studies of care provided to Medicaid patients in accordance with Medicare requirements and other reviews required by the State Commissioner of Health.

(8) In the event that a local social services district processes a discharge claim for payment which is not supported by the form required in paragraph (6) of this subdivision, such payment by the local social services district shall be subject to disallowance.

Doc Status: 
Complete

Section 505.5 - Durable medical equipment; medical/surgical supplies; orthotic and prosthetic appliances; orthopedic footwear

505.5 Durable medical equipment; medical/surgical supplies; orthotic and prosthetic appliances; orthopedic footwear.

(a) Definitions. (1) Durable medical equipment means devices and equipment, other than prosthetic or orthotic appliances, which have been ordered by a practitioner in the treatment of a specific medical condition and which have all of the following characteristics:

(i) can withstand repeated use for a protracted period of time;

(ii) are primarily and customarily used for medical purposes;

(iii) are generally not useful to a person in the absence of an illness or injury; and

(iv) are usually not fitted, designed or fashioned for a particular individual's use. Where equipment is intended for use by only one person, it may be either custom-made or customized.

(2) Medical/surgical supplies means items for medical use other than drugs, prosthetic or orthotic appliances, durable medical equipment, or orthopedic footwear which have been ordered by a practitioner in the treatment of a specific medical condition and which are usually:

(i) consumable;

(ii) nonreusable;

(iii) disposable;

(iv) for a specific rather than incidental purpose; and

(v) generally have no salvageable value.

(3) Orthotic appliances and devices mean those appliances and devices which are used to support a weak or deformed body member; or to restrict or eliminate motion in a diseased or injured part of the body.

(4) Orthopedic footwear means shoes, shoe modifications, or shoe additions which are used to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; or to support a weak or deformed structure of the ankle or foot. Orthopedic shoes must have, at a minimum, the following features:

(i) Blucher or Bal construction;

(ii) leather construction or synthetic material of equal quality;

(iii) welt construction with a cement attached outsole or sewn on outsole;

(iv) upper portion properly fitted as to length and width; no unit sole; bottom sized to the last;

(v) closure appropriate to foot condition. Velcro strap or lace closure preferred except in circumstances when a patient is unable to use them;

(vi) full range of width, not just narrow, medium, wide; and

(vii) extended medial counter and firm heel counter.

(5) Prosthetic appliances and devices mean those appliances and devices (excluding artificial eyes and dental prostheses) ordered by a qualified practitioner which replace any missing part of the body.

(6) Practitioner means a physician, dentist, podiatrist, physician assistant, or nurse practitioner.

(7) Provider, for purposes of this section, means a pharmacy, certified home health agency, medical equipment and supply dealer, hospital, residential health facility, or clinic enrolled in the medical assistance program as a medical equipment dealer.

(8) The terms written order or fiscal order are used interchangeably in this section and mean any original, signed written order of a practitioner which requests durable medical equipment, prosthetic or orthotic appliances and devices, medical/surgical supplies, or orthopedic footwear.

(9) Acquisition cost means the line item cost to the provider. Shipping and handling charges are not reimbursable under the medical assistance program. (10) Acquisition price means that price determined and periodically adjusted by the State Health Department, which it deems a prudent Medicaid provider would pay for a reasonable quantity of generically equivalent enteral products.

(b) Written order required. (1) All durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices, and orthopedic footwear may be furnished only upon a written order of a practitioner.

(i) The ordering of durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices, and orthopedic footwear is limited to the practitioner's scope of practice.

(ii) The ordering of durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices, and orthopedic footwear is limited to practitioners not excluded from participating in the medical assistance program.

(2) All orders must show the name, address, telephone number of the practitioner and the name and identification number of the recipient for whom ordered.

(3) When used in the context of an order for a prescription item, the order must also meet the requirements for a prescription under section 6810 of the Education Law. When used in the context of a nonprescription item, the order must also contain the following information: name of the item, quantity ordered, size, catalog number as necessary, directions for use, date ordered, and number of refills, if any.

(4) An original fiscal order for medical/surgical supplies must not be filled more than 14 days after it has been written by the practitioner unless prior approval or prior authorization is required for the item.

(i) An order for medical/surgical supplies will not be refilled unless the ordering practitioner has indicated the number of refills on the order. All refills must reference the original order.

(ii) The maximum number of refills permitted for medical/surgical supplies is found in the fee schedule for durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and orthopedic footwear. The fee schedule for such equipment and supplies is available free of charge from the Medicaid fiscal agent's website.

(iii) No order can be refilled more than 180 days from the original date ordered.

(c) Review of claims. (1) The identity of the practitioner who ordered the durable medical equipment, medical/surgical supply, prosthetic or orthotic appliance or device, or orthopedic footwear must be recorded by the provider on the claim for payment by entering in the license or MMIS provider identification number of the practitioner where indicated.

(2) Written orders for durable medical equipment, medical/surgical supplies, prosthetic or orthotic devices, or orthopedic footwear must be maintained by the provider submitting the claim for audit by the department or other authorized agency for six years from the date of payment.

(3) The financial liability of the ordering practitioner as well as the provider of any durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances or devices or orthopedic footwear determined on audit not to be medically necessary is set forth in Part 518 of this Title.

(d) Payment. (1) General payment policy.

(i) Payment for durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices, and orthopedic footwear is limited to providers enrolled in the medical assistance program as medical equipment dealers. Payment for medical/surgical supplies is also available to providers enrolled in the medical assistance program as pharmacies.

(ii) Reimbursement amounts are payment in full. No separate or additional payments will be made for shipping, handling, delivery or necessary fittings and adjustments.

(iii) Payment will not be made for items provided by a facility or organization when the cost of these items is included in the rate.

(iv) Payment for items provided by a not-for-profit provider will be made at the acquisition cost.

(v) Any insurance payments including Medicare must be applied against the total purchase price of the item.

(vi) Reimbursement amounts for unlisted items are determined by the New York State Department of Health and must not exceed the lower of:

(a) the acquisition cost to the provider plus 50 percent; or

(b) the usual and customary price charged to the general public.

(vii) The provider is responsible for any needed replacements or repairs that are due to defects in quality, or workmanship.

(2) Payment for durable medical equipment.

(i) Payment for purchase of durable medical equipment must not exceed the lower of:

(a) the maximum reimbursable amount as shown in the fee schedule for durable medical equipment, medical/surgical supplies, orthotics and prosthetic appliances and orthopedic footwear; the maximum reimbursable amount will be determined for each item of durable medical equipment based on an average cost of products representative of that item; or

(b) the usual and customary price charged to the general public for the same or similar products.

(ii) When there is no price listed in the fee schedule for durable medical equipment, medical/surgical supplies, orthotics and prosthetic appliances and orthopedic footwear, payment for purchase of durable medical equipment must not exceed the lower of:

(a) acquisition cost as established by invoice detailing the line item cost to the provider from a manufacturer or wholesaler net of any rebates, discounts or valuable consideration, mailing, shipping, handling, insurance or sales tax plus fifty percent; or

(b) the usual and customary price charged to the general public for the same or similar products.

(iii) When the primary payor is Medicare, payment for the purchase of durable medical equipment shall be the amount approved by Title XVIII of the Medicare Program.

(iv) All rentals of durable medical equipment, except those subject to partial reimbursement under the Medicare program, require prior approval from the New York State Department of Health. The rental payment must not exceed the lower of the monthly rental charge to the general public or the price determined by the New York State Department of Health. The total accumulated monthly rental charges may not exceed the actual purchase price of the item. Rental payment includes all necessary equipment, delivery, maintenance and repair costs, parts, supplies and services for equipment set-up, maintenance and replacement of worn essential accessories or parts.

(3) Payment for medical/surgical supplies.

(i) Payment for medical/surgical supplies listed in the fee schedule for durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and orthopedic footwear must not exceed the lower of:

(a) the price as shown in the fee schedule for durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and orthopedic footwear; or

(b) the usual and customary price charged to the general public.

(ii) The fee schedule for medical/surgical supplies is available from the department and is also contained in the department's MMIS Provider Manual (Durable Medical Equipment, Medical/Surgical Supplies, Orthotic and Prosthetic Appliances). Copies of the manual may be obtained by writing Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl St., Albany, NY 12204. Copies may also be obtained from the Department of Social Services, 40 North Pearl St., Albany, NY 12243. The manuals are provided free of charge to every provider of durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and orthopedic footwear at the time of enrollment in the MA program.

(4) Payment for orthotic and prosthetic appliances and devices.

(i) Payment for prosthetic and orthotic appliances and devices must not exceed the lower of:

(a) the price as shown in the fee schedule for durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and orthopedic footwear; or

(b) the usual and customary price charged to the general public.

(ii) Payment for orthotists and prosthetists for home visits is set forth in the fee schedule for durable medical equipment, medical/surgical supplies, prosthetic and orthotic appliances and orthopedic footwear.

(iii) The fee schedule for orthotic and prosthetic appliances and devices is available free of charge from the Medicaid fiscal agent's website.

(5) Payment for orthopedic footwear. (i) Payment for orthopedic footwear must not exceed the lower of:

(a) the maximum reimbursable amount as shown in the fee schedule for durable medical equipment, medical/surgical supplies, orthotics and prosthetic appliances and orthopedic footwear; the maximum reimbursable amount will be determined for each item of footwear based on an average cost of products representative of that item; or

(b) the usual and customary price charged to the general public for the same or similar products.

(ii) Orthopedic shoes must be provided by a provider who has submitted proof of certification or approval from the American Board for Certification in Orthotics and Prosthetics.

(6) Payment for oxygen must not exceed the lower of:

(i) the acquisition cost to the provider plus 50 percent; or

(ii) the usual and customary price charged to the general public.

(7) Payment for hearing aid batteries is reimbursed at retail less 20 percent updated on a periodic basis.

(8) Payment for enteral therapy must not exceed the lower of:

(i) the acquisition price plus thirty percent for generically equivalent products as shown in the fee schedule for duration medical equipment, medical surgical supplies, prosthetic and orthotic appliances and orthopedic footwear; or

(ii) the usual and customary charge to the general public.

(e) Service limitations. (1) Items of durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices, and orthopedic footwear are limited in their amount and frequency and require prior authorization. Service limits and prior authorization requirements are listed in the provider manual at the Medicaid fiscal agent's website.

(2) From time to time the department may impose additional service limitations on items of durable medical equipment, medical/surgical supplies, orthotic and prosthetic appliances and devices or orthopedic footwear. The department will notify providers in writing before it implements additional limitations.

(3) The department may allow exceptions to the limitations established under this paragraph where the ordering practitioner attests to medical necessity and the item must be replaced because it is worn or has been lost or stolen.

(f) Prior approval and prior authorization requirements. (1) Orthopedic shoes can be provided only on the basis of an examination by and a signed, original written fiscal order of, a qualified physician or podiatrist and upon the prior authorization of the department.

(2) From time to time the department may require the prior authorization of items of durable medical equipment, medical/surgical supplies, orthotic or prosthetic appliances and devices, or orthopedic footwear. When prior authorization is required for these items, the items can be provided only on the basis of an examination by, and a signed, original written fiscal order of, a qualified practitioner and upon the prior authorization of the department. Providers will be notified in writing by the department before it implements requirements for the prior authorization of any item.

(3) When an appliance or device is recommended by a qualified practitioner on the staff of a state mental hygiene facility for a medical assistance recipient in the family care program, prior approval or authorization is not required.

(g) Benefit limitations. The department shall establish defined benefit limits for certain Medicaid services as part of its Medicaid State Plan. The department shall not allow exceptions to defined benefit limitations. The department has established defined benefit limits on enteral nutritional formulas.  Enteral nutritional formulas are limited to coverage for:

(1) tube-fed individuals who cannot chew or swallow food and must obtain nutrition through formula via tube;

(2) individuals with rare inborn metabolic disorders requiring specific medical formulas to provide essential nutrients not available through any other means;

(3) children under age 21 when caloric and dietary nutrients from food cannot be absorbed or metabolized; and

(4) persons with a diagnosis of HIV infection, AIDS, or HIV-related illness, or other disease or condition, who are oral-fed and who:

(i) require supplemental nutrition, demonstrate documented compliance with an appropriate medical and nutritional plan of care, and have a body mass index under 18.5 as defined by the Centers for Disease Control, up to 1,000 calories per day; or

(ii) require supplemental nutrition, demonstrate documented compliance with an appropriate medical and nutritional plan of care, and have a body mass index under 22 as defined by the Centers for Disease Control and a documented, unintentional weight loss of 5 percent or more within the previous 6 month period, up to 1,000 calories per day; or

(iii) require total nutritional support, have a permanent structural limitation that prevents the chewing of food, and the placement of a feeding tube is medically contraindicated.

Doc Status: 
Complete
Effective Date: 
Wednesday, February 27, 2019
Statutory Authority: 
Social Services Law, Sections 363-a(2) and Public Health Law, Sections 201(1)(v)

Section 505.6 - Ophthalmic services.

505.6 Ophthalmic services. (a) Definitions. (1) Qualified optometrist shall mean an optometrist who is licensed and currently registered by the New York State Education Department or, if in practice in another state, by the appropriate agency of that state.

(2) A qualified dispenser shall mean an ophthalmic dispenser who is licensed and currently registered by the New York State Department of Education or, if in practice in another state by the appropriate agency of that state.

(3) Low vision shall mean 20/70 or less in the best eye with best correction.

(b) General policy. (1) Examinations for visual defects and/or eye disease shall be provided to medical assistance recipients only as necessary and as required by the individual's particular condition. For each medical assistance patient reimbursement for examinations shall be limited to once every two years unless otherwise justified as clinically necessary.

(2) Except in unusual circumstances, eyeglasses shall not be prescribed or provided for a person unless the initial correction or change in correction is at least 1/2 diopter. Any exception to this standard shall be clearly documented by the examining practitioner and shall require prior approval of the local professional director.

(3) Eyeglasses shall be provided only on the basis of proper examination by and with a written prescription of a licensed ophthalmologist or optometrist. Eyeglasses shall not normally require changing more frequently than every two years. Any exception to this standard shall be justified as being clinically necessary.

(4) When dispensing eyeglasses, the optometrist or ophthalmic dispenser shall complete the following tasks:

(i) measure the interpupillary distances;

(ii) determine the proper bridge, eye and temple size;

(iii) determine the multi-focal position;

(iv) assist the recipient in frame selection; and

(v) supply the recipient with a pair of eyeglasses which are fully assembled and completed.

(5) Fabrication of eyeglasses shall conform to the current American National Standards Institute (ANSI) prescription requirements.

(6) The following standards shall be observed in providing lenses and frames:

(i) All lenses, frames and frame parts shall be guaranteed by the provider against defects in manufacture or assembly.

(ii) Only first quality frames shall be supplied. The dispenser shall be responsible for any needed replacement or repairs that are due to defects in quality of material or workmanship.

(iii) Cost of frames provided shall not exceed the maximum amount approved by the NYS Director of the Budget, except, that for clinical reasons documented by the prescribing ophthalmologist or optometrist, more expensive frames may be approved for an individual. However, where such an exception is made, prior approval by the local professional director shall be required.

(iv) No extra charge shall be made by a dispenser of eyeglasses for future fittings and adjustments if he/she has dispensed the eyeglasses.

(7) Provision of two pairs of eyeglasses, one pair for distance and one for near vision shall not be made unless the need for such pairs shall be substantiated by the patient's particular needs, such as proven inability to tolerate bifocals, the unusual nature of the patient's correction, physical ailments, and other conditions which make provision of bifocals inadvisable. Two pairs of eyeglasses shall not be provided merely as an alternative to satisfy an unjustifiable preference on the part of the patient, for personal convenience or for cosmetic purposes.

(8) For each medical assistance patient examined, a proper record must be maintained by the service provider(s) and, if applicable to the service provided, must include the following information:

(i) examination findings;

(ii) visual field charts;

(iii) orthoptic evaluation records;

(iv) tonometric pressure;

(v) contact lens records;

(vi) fitting measurements; and

(vii) identifying lens and frame specifications. A record of the prescription must be maintained by the prescriber in the patient's file.

(9) An eye examination provided by a qualified optometrist to be accepted as the basis for prescription for eyeglasses to be reimbursable under medical assistance program shall include, as a minimum, the following components:

(i) case history;

(ii) internal and external eye examination;

(iii) vision correction;

(a) objective;

(b) subjective (distance and near);

(iv) binocular coordination testing (distance and near);

(v) gross visual fields by confrontation;

(vi) tonometry for patients age 35 and over and for others where indicated.

(10) A complete examination by an ophthalmologist shall include the minimal components listed in paragraph (9) of this subdivision and any additional study and medical evaluation including the use of drugs, necessary to arrive at a medical diagnosis.

(11) Optometrists may perform low vision examinations only after passing a qualifying examination in low vision given by the New York State Optometric Association. Prior approval shall not be required for a low vision examination when performed by a licensed ophthalmologist or qualified optometrist.

(12) State reimbursement or payment shall not be available for a low vision examination when such examination is included in and part of any other eye examination and/or eye refraction provided by a practitioner to an individual patient.

(13) (i) Provision of orthoptic training requires prior approval of the local professional director. No such approval shall exceed six months. If the need for orthoptic training exceeds this six month period, it is necessary to reapply for prior approval and supply information which details the progress made, the anticipated treatment plan and the prognosis.

(ii) Orthoptic training shall be provided only by a licensed ophthalmologist, a qualified orthoptic technician under the direct supervision of a licensed ophthalmologist or by a qualified optometrist.

(14) Artificial eyes require the recommendation of a licensed ophthalmologist and shall require approval by the local professional director.

(15) Contact lenses shall be supplied only for the treatment of ocular pathology and shall require the written recommendation or prescription of a licensed ophthalmologist. Prior approval by the local professional director shall be required for all contact lens services.

(c) Authorization for supplies. (1) The identification card issued to persons eligible for medical assistance shall constitute full authorization for providing the following services and supplies and no special or prior approval shall be required:

(i) single vision or multi-focal lenses as required by the patient's need and conditions;

(ii) case hardened lenses, except as provided in subparagraph (2)(ii) of this subdivision;

(iii) frames with a wholesale cost of not more than the maximum amount approved by the New York State Director of the Budget.

(2) Prior approval of the local professional director shall be required for the following supplies:

(i) tinted lenses;

(ii) case hardened lenses for purposes of industrial safety;

(iii) contact lenses. These lenses are to be provided for ocular pathology only and must be recommended by a licensed ophthalmologist;

(iv) frames with a wholesale cost in excess of the maximum amount approved by the New York State Director of the Budget;

(v) low vision aids costing in excess of $100;

(vi) visual rehabilitation;

(vii) eyeglasses when the initial correction or change correction is less than 1/2 diopter;

(viii) single vision; over standard chart thickness lenses; standard chart thickness shall be that as defined by the American National Standards Institute;

(ix) artificial eye services; and

(x) orthoptic training for which prior approval will be granted for periods of up to six months in duration.

(d) Basis of payment. Reimbursement and payment for ophthalmic supplies and services shall not exceed the fees contained in the current New York State Fee Schedule for ophthalmic supplies and services approved by the New York State Budget Director as set forth in section 537.3 of this Subchapter.

(e) Acquisition of Supplies. (l) The department will purchase from the Department of Correctional Services all eyeglass lenses and frames to be furnished under the Medical Assistance (MA) program to recipients of MA and the Department of Correctional Services will assume full responsibility for the provision of such eyeglass lenses and frames to optometrists, qualified dispensers, and retail optical establishments for dispensing to recipients of MA in accordance with the provisions of this subdivision.

(2) Prior to the Department of Correctional Services's assumption of responsibility for providing such eyeglass lenses and frames, the Department of Correctional Services will enter into an agreement with the department for the acquisition of eyeglass lenses and frames by the department and for distribution of such eyeglass lenses and frames by the Department of Correctional Services to enrolled optometrists, qualified dispensers, and retail optical establishments. Such agreement will provide for the prompt provision of ordered supplies, assure that the supplies provided meet appropriate fabrication requirements and standards, and contain such other provisions as the department and the Department of Correctional Services deem appropriate for the efficient and effective distribution of such materials. For purposes of this subdivision, the Department of Correctional Services will guarantee lenses, frames, and frame parts against defects in manufacture or assembly and will be responsible for any needed replacements or repairs that are due to defects in quality of material or workmanship.

(3) On and after the dates specified below, optometrists, qualified dispensers, and retail optical establishments must obtain from the Department of Correctional Services all eyeglass lenses and frames to be dispensed under the MA program to recipients of MA, who have received their authorizations for MA from the following specified social services districts:

(i) Albany County: July 1, 1994;

(ii) Allegany County: October 31, 1994;

(iii) Broome County: April 1, 1993;

(iv) Cattaraugus County; October 31, 1994;

(v) Cayuga County: July 1, 1994;

(vi) Chautauqua County October 31, 1994;

(vii) Chemung County: October 31, 1994;

(viii) Chenango County: July 1, 1994;

(ix) Clinton County: July 1, 1994;

(x) Columbia County: July 1, 1994;

(xi) Cortland County: July 1, 1994;

(xii) Delaware County: April 1, 1993;

(xiii) Dutchess County: January 15, 1994;

(xiv) Erie County: October 31, 1994;

(xv) Essex County: July 1, 1994;

(xvi) Franklin County: July 1, 1994;

(xvii) Fulton County: July 1, 1994;

(xviii) Genesee County: January 15, 1994;

(xix) Greene County: July 1, 1994;

(xx) Hamilton County: July 1, 1994;

(xxi) Herkimer County: July 1, 1994;

(xxii) Jefferson County: July 1, 1994;

(xxiii) Lewis County: July 1, 1994;

(xxiv) Livingston County: January 15, 1994;

(xxv) Madison County: July 1, 1994;

(xxvi) Monroe County: January 15, 1994;

(xxvii) Montgomery County: July 1, 1994;

(xxviii) Nassau County: October 31, 1994;

(xxix) Niagara County: October 31, 1994;

(xxx) Oneida County: July 1, 1994;

(xxxi) Onondaga County: July 1, 1994;

(xxxii) Ontario County: January 15, 1994;

(xxxiii) Orange County: April 1, 1993;

(xxxiv) Orleans County: January 15, 1994;

(xxxv) Oswego County: July 1, 1994;

(xxxvi) Otsego County: July 1, 1994;

(xxxvii) Putnam County: January 15, 1994;

(xxxviii)Rensselaer County: July 1, 1994;

(xxxix) Rockland County: January 15, 1994;

(xl) St. Lawrence County: July 1, 1994;

(xli) Saratoga County: July 1, 1994

(xlii) Schenectady County: July 1, 1994;

(xliii) Schoharie County: July 1, 1994;

(xliv) Schuyler County: October 31, 1994;

(xlv) Seneca County: October 31, 1994;

(xlvi) Steuben County: October 31, 1994;

(xlvii) Suffolk County: October 31, 1994;

(xlviii) Sullivan County: April 1, 1993;

(xlix) Tioga County: April 1, 1993;

(l) Tompkins County: July 1, 1994;

(li) Ulster County: April 1, 1993;

(lii) Warren County: July 1, 1994;

(liii) Washington County: July 1, 1994;

(liv) Wayne County: January 15, 1995;

(lv) Westchester County: July 1, 1994; and

(lvi) Wyoming County: October 31, 1994; and

(lvii) Yates County: October 31, 1994.

(4) (i) Optometrists, qualified dispensers and retail optical establishments rendering supplies to recipients of MA, who have received their authorizations from the above-specified social services districts, must not submit claims for any eyeglass lenses or frames provided on or after the date specified for such district. However, such providers will continue to submit claims to the department for other optical care and services rendered on and after the date specified for each such district.

(ii) The Department of Correctional Services will submit claims to the department for the eyeglass lenses and frames furnished to such providers for dispensing to recipients of MA, who have received their authorizations from the above-specified social services districts, on and after the date specified for each such district.

(5) This subdivision will be effective only if federal financial participation is available for services provided hereunder to recipients of MA in federally participating categories of assistance.

(6) Optometrists, qualified dispensers and retail optical establishments rendering supplies to recipients of MA, who have received their authorizations from the above-specified social services districts, may obtain eyeglass lenses and frames from qualified sources other than the Department of Correctional Services upon written approval by the department. Such written approval may be granted in circumstances where the department determines that the Department of Correctional Services cannot perform its obligations under its agreement with the department.

(7) The provisions of this subdivision do not apply to eyeglass lenses and frames provided to recipients of MA who:

(i) are enrolled in managed care programs which receive payment from the MA program on a capitation basis and which include eyeglass lenses and frames as a contract benefit for enrollees; or

(ii) receive eyeglass lenses and frames through clinics which include eyeglass lenses and frames in their MA rates.

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Section 505.7 - Laboratory Services.

505.7 Laboratory Services. (a) Scope of services. This section sets forth the requirements and procedures for furnishing laboratory services and obtaining payment for laboratory services under the medical assistance (MA) program. Payment for laboratory services is limited to those medically necessary tests and procedures listed in the MA fee schedule for laboratory services. The MA fee schedule for laboratory services is available from the Department and may also be found in the Medicaid Management Information System (MMIS) Provider Manual (Laboratory), which is available by writing Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl Street, Albany, New York 12204. Copies may also be obtained from the Department of Social Services, 40 North Pearl Street, Albany, New York 12243. The manual is provided free of charge to every laboratory upon enrollment in the MA program. Revisions to the manual are provided to laboratories as revisions are made.

(b) Definitions. (1) (i) Fiscal order for laboratory services means a qualified practitioner's authenticated request to a clinical laboratory for the provision of a test, examination and/or analysis on behalf of a recipient of MA. Authentication of fiscal orders shall be by a qualified practitioner or by designation as provided in subdivision (i) of this section and shall consist of either (a) handwritten signature of name or initials, (b) or electronic or computer-generated signature of name or unique identifier acceptable to the department. All orders must show the ordering practitioner's: name, address, telephone number, and MMIS provider identification number (or license number of the ordering practitioner when such practitioner is not an enrolled MA provider); and the name, date of birth, sex and MA identification number of the recipient for whom services are ordered. The order also must contain at least the date the test was ordered and the name of the test. The order must meet any applicable New York State and Federal requirements governing the ordering of laboratory services. The ordering practitioner must document in the patient's clinical record the medical need for the fiscal order and the results of each of the tests. (ii) A standing order is a fiscal order, as defined in subparagraph (i) of this paragraph which requests the provision of one or more medically necessary examinations and/or analyses at defined intervals over a period not to exceed 180 days (six months). The clinical parameters for which standing orders are permitted are: (i) cancer treatment recipients needing a CBC and platelet count test; (ii) diabetic recipients needing blood glucose level and glycohemoglobin tests (including hemoglobin A1c); (iii) cardiac recipients needing prothrombin time and digoxin level tests; and (iv) recipients needing monitoring of therapeutic levels of prescribed drugs. The ordering practitioner must document in the patient’s clinical record the medical need for the standing order and the results of each of the tests.

(2) Laboratory means a facility which meets the definition of a laboratory contained in Title V of Article 5 of the Public Health Law.

(3) Qualified practitioner means any licensed physician or other person who: (i) provides services which are reimbursable pursuant to section 365-a of the Social Services Law; (ii) is authorized by law to use the findings of laboratory examinations; and (iii) has not been excluded from participation in the MA program.

(4) The MA fee schedule for laboratory services means the fee schedule developed by the Department of Health and approved by the Division of the Budget. The MA fee schedule for laboratory services is included as part of the MMIS provider manual for laboratories.

(c) Fiscal order required. (1) Laboratory services may be provided by a laboratory only upon a fiscal order for laboratory services or a copy of such order as permitted by paragraph (2) of this subdivision.

(2) Laboratory services may be provided on a referral basis by a laboratory upon receipt of an unaltered copy of the fiscal order provided to the testing laboratory by a forwarding laboratory which has the fiscal order for laboratory services on file.

(d) Form required. All fiscal orders for laboratory services must be written on: (1) a qualified practitioner's prescription form or imprinted stationery, with all tests to be performed listed individuallY in writing by the practitioner; or (2) a laboratory requisition, either hardcopy or electronic, which is issued by a clinical laboratory and which permits the selection of individual tests; or (3) a pre-printed order form which is issued by a facility certified under Article 28 of the Public Health Law for laboratory services to be provided by the hospital's laboratory.

(e) Where available. (1) Laboratory services are available only from laboratorieS which are currently enrolled in the MA program and which either meet the Medicare conditions for coverage of services for independent laboratories or meet the requirements for participation in the Medicare program as a hospital.

(2) Laboratory services may be obtained from a qualified practitioner pursuant to paragraph (3) of subdivision (f) of this section, provided that such practitioner is enrolled in the MA program.

(f) Permits required. A laboratory services provider must have the permits required by this subdivision and must meet any applicable federal requirements governing the provision of laboratory services.

(1) A laboratory must have a valid permit in the appropriate categories as required by the Public Health Law.

(2) An out-of-state laboratory which provides services on behalf of recipients of MA who receive necessary medical care while temporarily absent from the state and which is not subject to the requirements of paragraph (1) of this subdivision, must be currently licensed or certified by the appropriate state agency of the state in which it is located and must meet the requirements of paragraph (1) of subdivision (e) of this section.

(3) A qualified practitioner who does not hold a currently valid laboratory permit may only provide laboratory services which are listed in the MA fee schedule of the Medicaid Management Information System Provider Manual for that practitioner's services. These services must be provided in the practitioner's office in the course of treating his or her own patients and may be billed directly by the practitioner. The Manuals are available from Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl Street, Albany, New York 12204. Copies also may be obtained from the Department of Social Services, 40 North Pearl Street, Albany, New York 12243. The applicable MMIS provider manual is provided free of charge to every practitioner upon enrollment in the MA program. Revisions to the various manuals are provided to practitioners as revisions are made.

(g) Payment. (1) Payment for laboratory services will be in an amount equal to the lower of: the amount specified in the MA fee schedule for laboratory services or the fee charged for laboratory services provided to the general public by the laboratory.

(2) Payment for laboratory services will be made only when the results of the ordered tests have been provided in writing to the ordering practitioner.

(3) Payment for laboratory services will be made only to the laboratory services provider actually performing the test.

(4) Payment for laboratory services provided by independent laboratories will be made only for individually ordered tests. No payment will be made for tests ordered as groupings or combinations of tests or for individual tests ordered on a laboratory order form issued by an independent laboratory which also contains an order for one or more groups or combinations of tests. Each test must be separately ordered by a qualified practitioner as defined in paragraph (3) of subdivision (b) of this section.

(5) No payment will be made for tests repeated at the request of the ordering practitioner when the results of the original test are not consistent with the clinical findings.

(6) No payment will be made for tests performed on specimens which are not acceptable for testing pursuant to Department of Health regulations contained in 10 NYCRR Part 58.

(7) No payment will be made on a fee-for-service basis for laboratory services ordered for an MA recipient on either an in-patient or out-patient basis when the cost of providing laboratory services has been included in the MA rate of payment for the provider of such in-patient or out-patient care.

(h) Utilization threshold.

(1) This subdivision describes the utilization threshold that the department has established for laboratory services. Part 503 of this Title authorizes the department to establish a utilization threshold for specific recipients and for specific provider services types, including laboratory services. Part 503 also describes the application of the utilization threshold, the services and procedures excluded from the utilization threshold for all provider service types subject to a threshold, the method for obtaining an exemption from or increase in the utilization threshold, notices, and the right to a fair hearing in certain situations.

(2) General rule. The department will pay for up to 18 laboratory service procedures in a benefit year. For purposes of this subdivision, a procedure consists of all services which are claimed for a single date of service and which are represented by a single laboratory procedure code, as listed and defined in the MA fee schedule for laboratory services. (i) Designation of Authority to Complete Laboratory Test Order Form(s). A practitioner ordering laboratory services may designate to personnel/staff the authority to complete laboratory test order forms and sign (authenticate) the form on the practitioner’s behalf. The practitioner remains responsible for any tests ordered on the practitioner’s behalf by personnel/staff that the practitioner has designated, just as though the practitioner had completed and/or signed the order personally. (j) Electronic system security and confidentiality. Safeguards to ensure security and confidentiality shall include but not be limited to: (1) the assignment, as appropriate, of a unique identifier assigned in a confidential manner; (2) the certification in writing by the practitioner and the practitioner’s authorized user that each identifier assigned is confidential and is available and accessible only to the person authorized to use the electronic or computer authentication system; (3) policies and procedures to ensure the security of electronic or computer equipment from unwarranted access; (4) policies and procedures that restrict access to information and data to those individuals who have need and permission for such access; (5) and a means to track access by users. (k) Verification process. Practitioners shall implement an ongoing verification process to ensure that electronic communications and entries, or delegated laboratory order completion are accurate including but not limited to: (1) for electronic orders, protocols for ensuring that incomplete entries of documents are not accepted or implemented until reviewed, completed and verified by the author; and (2) for delegated orders (either manual or electronic) a process implemented as part of the practitioner’s quality assurance activities that provides for review to verify the accuracy and integrity of the system. (3) written procedures, which ensure that only personnel authorized by the practitioner can generate the completed laboratory order forms. (l) The practitioner shall have procedures in place to modify or terminate use of any assigned identifier in cases of abuse or misuse or if practice privileges are suspended, restricted, terminated or curtailed or employment or affiliation ends.

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Section 505.8 - Nursing service.

505.8 Nursing service. (a) Where nursing care may be provided. Nursing services, as medically needed, may be provided to a medical assistance recipient in the person's home or in a hospital and, with respect to a child receiving nursing services pursuant to an individualized education program or an interim or final individualized family services plan, also in a school, an approved pre-school or a natural environment, including home and community settings, where such child would otherwise be found.

(b) Who may provide nursing care. (1) Nursing care to patients in New York State shall be provided by a person possessing a license and current registration from the New York State Education Department to practice as a registered professional nurse or licensed practical nurse.

(2) Out-of-state nurses providing care to a New York State Medical Assistance patient who is temporarily located outside New York State, must be licensed and registered in the state in which they are practicing.

(c) Private duty nursing care in the hospital. Private duty nursing care in the hospital shall be provided on the recommendation of the patient's attending physician when the patient is in need of individual and continuous care beyond that available by the staff of a hospital, including that which is available in a critical care area.

(d) Nursing service in the home. (1) For necessary nursing service to be provided in the person's home, full and primary use shall be made of the services of an approved home health agency, including a hospitalbased home health agency.

(2) Such service shall be provided on a per visit basis and may include not only intermittent or part-time nursing service for the patient but also instructions to members of the patient's family in procedures necessary for the care of the patient.

(3) Service of a registered professional nurse or of a licensed practical nurse on a private practitioner basis may be provided to a patient in his own home only under the following circumstances:

(i) when there is no approved home health agency available to provide the intermittent or part-time nursing services needed by the patient;

(ii) when the patient is in need of individual and continuous nursing care beyond that available from an approved home health agency.

(e) Prior approval and prior authorization. Prior approval by the local professional director and prior authorization by the local social services official shall be required for nursing service provided in a person's home or in a hospital by a private practicing registered professional or licensed practical nurse, except that in an urgent situation the attending physician may order the service of such nurse for no more than two nursing days and immediately notify the local social services official and the appropriate medical director.

(f) Physician's written order required. All nursing services provided by a registered professional nurse or licensed professional nurse in a recipient's home, a hospital, a school, an approved pre-school, or a natural environment, including home and community settings, where such child would otherwise be found, must be provided in accordance with the attending physician's written order and plan of treatment. In extraordinary circumstances and for valid reasons which must be documented, nursing services in the home may be initiated by a home health agency before the physician examines the recipient. A physician's written order is required for all such nursing services in excess of the initial two visits.

(g) Reimbursement. (1) Reimbursement for nursing services rendered by a registered professional nurse or licensed practical nurse on a private practitioner basis shall be at fees not to exceed those established by the Department of Health and approved by the State Budget Director. Nursing services rendered by a registered professional nurse or licensed practical nurse on a private practitioner basis in a hospital provided on dates between July 1, 1977 and October 8, 1979 are nonreimbursable under the Medical Assistance Program, except that a local social services official (or the MMIS project director, if a county was listed in section 540.6 of this Subchapter at the time service was rendered) may determine to reimburse services rendered after October 1, 1979, in accordance with this Part, if written approval is obtained from the State Commissioner.

(2) Reimbursement shall not be allowed on a fee paid to a legally responsible relative who provides nursing services in the patient's home or in a hospital.

(3) Payment for nursing services provided by an approved home health agency, including a hospital-based home health agency, shall be at rates established by the State Commissioner of Health pursuant to subdivision 7 of section 206 of the Public Health Law and reimbursement for such expenditures shall be at such rates.

(4) Payment is available for nursing services which are part of the development of, or furnished pursuant to, an individualized education program and which are provided by a registered professional nurse or licensed practical nurse employed by, or under contract to, a school district, an approved pre-school, a county in the State or the City of New York. Reimbursement for such services must be made in accordance with the provider agreement.

(5) Payment is available for nursing services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and which are provided by a registered professional nurse or licensed practical nurse employed by, or under contract to, an approved early intervention program or a municipality in the State. Reimbursement for such services must be made in accordance with the provider agreement. (6) Effective January 1, 2007 through January 1, 2009, payment for nursing services provided to medically fragile children shall be at an enhanced rate which exceeds the provider's nursing services payment rate established by the Department of Health and approved by the State Budget Director under this subdivision. (a) Medically fragile children means children who are at risk of hospitalization or institutionalization, 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, and includes any children under the age of 21 receiving continuous nursing services pursuant to this section. (b) The enhanced rate shall be determined by applying thirty percent (30%) of the provider's approved rate in addition to the rate otherwise payable under this subdivision, which increase is at least equivalent to the reimbursement rate for the AIDS Home Care Program specified in section 86-1.46(b) of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York. Licensed Home Care Services Agency (LHCSA) providers receiving reimbursement at the enhanced rate shall use such amounts only to recruit and retain nurses to ensure the delivery of nursing services to medically fragile children. (c) The enhanced rate shall only be payable upon submission of a certification by a nurse provider, on forms and procedures prescribed by the Department, that he or she has satisfactory training and experience to provide nursing services to medically fragile children. A LHCSA provider shall make and submit such certifications on behalf of nurses rendering services to children under this subdivision.

(h) Nurse-midwife services. (1) Standards of conformity. The provision of nurse-midwife services to a recipient in the Medical Assistance Program shall be in conformity with the provisions of section 85.36 of the Department of Health regulations (10 NYCRR) in order to be a reimbursable service.

(2) Payment for nurse-midwife services. (i) State reimbursement shall be available for expenditures made in accordance with provisions of this section.

(ii) Payment and reimbursement under the Medical Assistance Program for services provided by an independently practicing nurse-midwife shall be in accordance with fees established by the State Department of Health and approved by the State Director of the Budget.

(iii) Services provided by a nurse-midwife who is salaried by a medical facility that is reimbursed for services on a cost-related basis shall not be reimbursed on a fee-for-service basis if the cost for the nurse-midwife's salary is included in the facility's cost-based rate.

(iv) Services provided by nurse-midwives under this subdivision shall be eligible for payment and State reimbursement effective January 1, 1984.

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Section 505.9 - Residential health care.

505.9 Residential health care. (a) Qualifications for participation.

(1) In-state nursing facility care. Nursing care must be provided only in a nursing facility, as defined in the regulations of the Department of Health, which:

(i) holds a current operating certificate issued by the Department of Health;

(ii) qualifies as, or has an application pending to become, a provider in the Medicare program pursuant to title XVIII of the Federal Social Security Act, unless the nursing facility provides care solely to pediatric patients;

(iii) meets the Federal requirements for a "nursing home facility" under title XIX of the Federal Social Security Act; and

(iv) has a current effective provider agreement with the Department of Social Services.

(2) Out-of-state nursing facility care. When nursing facility care is provided to a medical assistance recipient in a nursing facility located outside New York State, such nursing facility must:

(i) comply with applicable licensing or approval requirements established by the officially designated standard-setting authority in the state where the care was received;

(ii) qualify as, or have an application pending to become a provider in the Medicare program pursuant to title XVIII of the Federal Social Security Act, unless the nursing facility provides care solely to pediatric patients;

(iii) meet the Federal requirements for a "nursing facility" under title XIX of the Federal Social Security Act; and

(iv) have a current provider agreement with the officially designated standard-setting authorities of the state in which the facility is located.

(3) Out-of-state facilities lacking title XVIII certification. Medical assistance payments are available solely for those recipients admitted to and retained in nursing facility beds certified for participation in title XVIII of the Federal Social Security Act.

(4) In-state intermediate facility care for the mentally retarded. In-state intermediate facility care for the mentally retarded must be provided only in intermediate care facilities for the mentally retarded that:

(i) have valid operating licenses issued by the Office of Mental Retardation and Developmental Disabilities (OMRDD) under article 31 of the Mental Hygiene Law;

(ii) have valid provider agreements with the Department of Social Services; and

(iii) have been certified as intermediate care facilities for the mentally retarded by the OMRDD.

(5) Out-of-state intermediate facility care for the mentally retarded. When intermediate facility care for the mentally retarded is provided to MA recipients in intermediate care facilities for the mentally retarded located in other states, payment must be made only for care provided by out-of-state facilities that:

(i) comply with applicable licensing requirements established by the officially designated standard-setting authorities of the states in which the facilities are located;

(ii) have valid provider agreements with the officially designated standard-setting authorities of the states in which the facilities are located; and

(iii) are certified as intermediate care facilities for the mentally retarded by the officially designated standard-setting authorities of the states in which the facilities are located.

(b) Prior approval and prior authorization of level of care. (1) Prior approval of level of care.

(i) Prior approval of the level of care when required by the Commissioner of the Department of Health, or his or her designee, is required before services provided in a nursing facility (NF) or intermediate care facility for the mentally retarded (ICF/MR) can be reimbursed under the MA Program.

(ii) Prior approval of level of care will be granted in accordance with patient assessment criteria and standards promulgated or approved by the Commissioner of the Department of Health or his or her designee.

(iii) Reviews of medical necessity must be made in accordance with standards promulgated or approved by the Commissioner of Health or his or her designees.

(2) Prior authorization. Prior authorization by a local social services official for care in an NF or ICF/MR is required pursuant to Part 540 of this Title. In no case can prior authorization exceed the maximum eligibility period permitted by regulations of the Department of Social Services. Failure by an NF or ICF/MR to comply with the requirements of this subdivision may result in retroactive denial of authorization by the local social services official. In addition, if the Commissioner of Health, or his or her designee, determines that a recipient received a level of care that was not medically necessary, authorization will be retroactively rescinded.

(c) Maximum reimbursable rate. The maximum reimbursable rate for payments made for nursing facility care provided in a nursing facility located in the State of New York will be at the rate approved by the Director of the Budget.

(d) Reserved Bed Days. (1) The department will pay the medical institutions listed in paragraph (3) of this subdivision to reserve a bed for an MA recipient temporarily hospitalized or on leave of absence from the institution for one or more reserved bed days; however, the department will not pay to reserve an NF bed for a recipient 21 years of age or older who is temporarily hospitalized unless such recipient is receiving hospice services within the NF. A reserved bed day is a day for which the department pays a medical institution to reserve an MA recipient's bed while he or she is temporarily hospitalized or on leave of absence from the institution. The recipient must be absent from the institution overnight for the day to be considered a reserved bed day. A recipient is considered to be absent overnight when he or she is absent later than the time at which the institution normally conducts its patient census. The day the recipient departs for temporary hospitalization or the leave of absence begins is counted as a reserved bed day. The day the recipient returns is not counted as a reserved bed day.

(2) Payments necessary to reserve an NF bed for an MA recipient under 21 years of ago who is temporarily hospitalized or on leave of absence, as permitted by this section, will be made at the reserved bed rate established for the facility by the Commissioner of the Department of Health and approved by the Director of the Budget. Payments necessary to reserve a NF bed for an MA recipient 21 years of age or older, as permitted by this section, shall be made at 95 percent of the Medicaid rate otherwise payable to the facility with regard to such days of care in the case of a leave of absence, and at 50 percent of the Medicaid rate otherwise payable to the facility with regard to such days of care in the case of the temporary hospitalization of a recipient receiving hospice services within the facility. Payments to reserve a bed in any other medical facility listed in paragraph (3) of this subdivision, as permitted by this section, will be at the full rate established for the facility.

(3) Medical institutions which may receive payments for reserved bed days are:

(i) an NF;

(ii) an ICF/MR;

(iii) a specialty hospital as defined in 14 NYCRR Part 680;

(iv) a psychiatric facility, including a residential treatment facility for children and youth (RTF);

(v) a rehabilitation facility;

(vi) a psychiatric or rehabilitation unit of a general hospital; or

(vii) a hospice for individuals residing in NFs who are in receipt of hospice services.

(4) General rules regarding payment for reserved bed days. (i) Payment for reserved bed days will be made in accordance with paragraphs

(1) and (2) of this subdivision.

(ii) Payment for bed reservations that are terminated will be from the date the recipient was admitted to the hospital through the date the hospital notified the institution of the circumstances that resulted in the termination.

(iii) No payment will be made for periods when recipients are absent from the institution as a direct result of a labor dispute in the institution.

(iv) No payment will be made for reserved bed days when a recipient's primary third-party resource is Medicare unless the recipient has been a patient in an NF for at least 30 days immediately before the hospitalization which resulted in the recipient's current Medicare coverage.

(v) NFs, ICFs/MR, specialty hospitals and RTFs must indicate on billing claims that authorization to claim reimbursement for reserved bed days has been obtained when necessary according to paragraph (7) of this subdivision.

(5) Length of stay and vacancy rate requirements.

(i) Applicability to NFs, ICF/MRs and specialty hospitals. The department will pay an institution for a recipient's reserved bed days when:

(a) the recipient has been a patient in the institution for at least 30 days since the date of his or her initial admission; and

(b) the part of the institution to which the recipient will return has a vacancy rate of no more than 5 percent on the first day the recipient is hospitalized or on leave of absence. When computing vacancy rates, an institution must disregard beds that have been reserved for other patients/residents. ICFs/MR with more than 30 beds are exempt from this vacancy rate requirement.

(ii) Applicability to RTFs. The department will pay an RTF for a recipient's reserved bed days when:

(a) the recipient has been institutionalized for at least 15 consecutive days. The appropriate regional office of the Office of Mental Health (OMH) may waive this length-of-stay requirement for a recipient temporarily hospitalized for emergency psychiatric or medical care; and

(b) the part of the RTF to which the recipient will return has a vacancy rate of not more than five percent or two vacant beds, whichever is greater, on the first day the recipient is hospitalized or on leave of absence. When computing a vacancy rate, the RTF must disregard beds that have been reserved for other patients.

(iii) Applicability to psychiatric facilities and psychiatric units of general hospitals. The department will pay a facility for a recipient's reserved bed days when the recipient has been institutionalized for at least 15 consecutive days. There is no vacancy rate requirement for these psychiatric facilities or units.

(iv) Applicability to rehabilitation facilities or rehabilitation units of general hospitals. The department will pay a facility for a recipient's reserved bed days when the recipient has been institutionalized for at least 30 consecutive days. There is no vacancy rate requirement for rehabilitation facilities or units.

(6) Reserving beds for recipients who are temporarily hospitalized. ICFs/MR, RTFs and specialty hospitals, as a condition of participation in the MA program, must make, extend and terminate bed reservations for MA recipients who are temporarily absent from such institutions for hospitalization as provided in subparagraphs (i) through (iv) of this paragraph.  NFs must, as a condition of participation in the MA program, make, extend and terminate bed reservations for MA recipients who are either under 21 years of age, or receiving hospice services within the facility and temporarily absent from such institutions for hospitalization as provided in subparagraphs (i) through (iv) of this paragraph.

(i) Reserving a recipient's bed. The institution must reserve a recipient's bed when the recipient is hospitalized and expected to return to the institution in 15 or fewer days, subject to the limitations set forth in this paragraph. Unless medically contraindicated, the institution must reserve the same bed and room the recipient occupied before being hospitalized. When an institution reserves a recipient's bed, it must notify the hospital by telephone and in writing, according to department instructions, that:

(a) the recipient's bed has been reserved;

(b) the hospital discharge planning coordinator must notify the institution by telephone of any changes in the recipient's condition during the period that the recipient's bed is reserved; and

(c) the hospital discharge planning coordinator must notify the institution of the recipient's planned discharge date by the morning of the 4th day of hospital care. The hospital discharge planning coordinator must also notify the institution by telephone if the recipient's planned discharge date must be adjusted after the 3rd and before the 16th day of hospital care because his or her condition has changed or additional medical information has become available. The hospital discharge planning coordinator must confirm in writing all bed reservation telephone communications.

(ii) When a recipient's bed will not be reserved. Under certain circumstances a recipient's bed will not be reserved. The institution must notify the hospital where the recipient is admitted that it is not reserving the recipient's bed. The institution must make appropriate notes on the recipient's transfer records or telephone the hospital within 24 hours after the recipient has been admitted if the recipient's bed will not be reserved. The institution also must document its decision not to reserve the bed. If a bed is not reserved, the recipient must be given priority in readmission to the institution over persons referred to the institution for their first admissions. An NF, ICF/MR, RTF or specialty hospital cannot reserve a recipient's bed when:

(a) it is clear when the recipient is hospitalized that he or she will not return to the institution within 15 days or fewer;

(b) after hospitalization, the recipient will need a level of care the institution does not provide; or

(c) the recipient does not want to return to the institution.

(iii) Extending bed reservation. An NF, ICF/MR, RTF or specialty hospital must extend the bed reservation of a hospitalized recipient under the following circumstances:

(a) if an extension will permit the recipient to return to the institution within 20 days of his or her admission to the hospital, the bed reservation must be extended up to 5 days beyond the 15-day limit; or

(b) if an extension will permit a recipient hospitalized for acute psychiatric care to return to the RTF within 30 days of his or her admission to the hospital, the RTF must extend the recipient's reservation up to 15 days beyond the 15-day limit.

(iv) Terminating bed reservations. (a) An NF, ICF/MR, RTF and specialty hospital must terminate a recipient's bed reservation when:

(1) the planned discharge date determined by the hospital by the morning of the 4th day of hospital care is more than 15 days from the day the recipient was admitted; or

(2) the hospital adjusted the recipient's planned discharge date between the morning of the 4th day of hospital care and the 16th day of hospital care and the new discharge date will not permit the recipient to return to the institution within 20 days of the hospital admission date, except as provided in clause (b) of this subparagraph.

(b) An RTF must terminate a recipient's bed reservation if the recipient was hospitalized for acute psychiatric care, the recipient's planned discharge date was changed between the morning of the 4th day and 16th day of hospital care and the new discharge date will not permit the recipient to return to the institution within 30 days of the hospital admission date.

(c) The hospital discharge coordinator must provide the institution with appropriate documentation regarding circumstances which caused the discharge date to be changed.

(7) Reserving beds for recipients who are on leave of absence.

(i) A recipient is on leave of absence when he or she is absent from the medical institution overnight to visit friends or relatives or to participate in a medically acceptable therapeutic or rehabilitative plan of care.

(ii) An NF, ICF/MR, RTF and specialty hospital must, as a condition of participation in the MA program, reserve beds as follows:

(a) Reserving the recipient's bed. A medical institution must reserve a recipient's bed when his or her plan of care provides for leaves of absence. Unless medically contraindicated, the institution must reserve the same bed and room the recipient occupied before the leave of absence. If a bed may not be reserved for a recipient under this paragraph, the institution must give priority to the recipient's readmission, over individuals referred for their first admissions.

(b) Prior authorization for payment of leave of absence reserved bed days:

(1) is not required for the first 18 of a recipient's reserved bed days during any 12-month period;

(2) is required if a recipient's reserved bed days are more than 18 days in any 12-month period, except for a recipient in an RTF, ICF/MR or specialty hospital. The medical institution must request prior authorization from the recipient's social services district's MA professional director. Prior authorization will be granted only if the 18-day limit interferes with a physician's ability to prescribe an appropriate therapeutic or rehabilitative plan for the recipient; and

(3) is required for a recipient's reserved bed days in an RTF which exceed 75 days in any 12-month period or four days per single leave. The RTF must request prior authorization from the appropriate regional office of the OMH for payment of the excess reserved bed days. The request for prior authorization must be:

(i) supported by verification from a physician;

(ii) consistent with the RTF's written policy; and

(iii) approved by the appropriate regional office of the OMH.

(c) An ICF/MR or a specialty hospital may request payment without prior authorization for an unlimited number of reserved bed days in any 12-month period.

(iii) For a recipient in a rehabilitation or psychiatric facility other than an RTF, or in the psychiatric or rehabilitation unit of a general hospital, the facility or unit must assure that leaves of absence are consistent with the institution's written policy on the use of leaves for therapy only, and limited to two days for any single leave, unless the recipient's social services district's MA professional director has approved an exception to this limitation prior to the leave.

(iv) Other payment standards for leave of absence reserved bed days.

(a) When a recipient incurs expenses, such as room and board, while on leave of absence, and the institution's per diem rate already reimburses the institution for these expenses, the institution must pay the cost. The recipient's social services district must give prior approval for an exception to this requirement. The social services district must ensure that costs included in the institution's per diem rate are reconciled with the institution's claim for payment of reserved bed days.

(b) No payment for reserved bed days will be made if a recipient returns to the institution from a leave of absence and is then discharged within 24 hours. Prior approval by the recipient's social services district's MA professional director, or for a recipient in an RTF, by the Commissioner of the OMH or his or her designee, or, for recipients in ICFs/MR or specialty hospitals, by the Commissioner of the OPWDD or his or her designee, must be obtained for an exception to this provision.

(v) An NF may not reserve a bed under this paragraph for a recipient who is temporarily receiving care in a hospital.

(vi) A bed reservation under this paragraph must be terminated when the institution is informed that the recipient will not return from leave to the institution.

(vii) When a recipient has been a patient in more than one medical institution within any 12-month period, the institution where the recipient is currently a patient must determine the number of paid leave of absence days in other institutions. Such institution must assure that the recipient's total number of leave days during the previous 12-month period does not exceed 18 days, unless prior authorization for extra days has been received or the 180-day limit is inapplicable. When a recipient is transferred to another inpatient institution, a copy of his or her absence register must be included in the transfer records.

(8) Prior authorization for payment for reserved bed days.

(i) Prior authorization for payment of reserved bed days is not required when a recipient is hospitalized for 15 or fewer days and returns immediately to the institution.

(ii) Prior authorization for payment of reserved bed days is required when:

(a) a recipient is hospitalized for 15 or fewer days and returns to an institution which has been identified by the social services district, the Office of Health Systems Management of the Department of Health, the OMRDD or the OMH as having deviated from this subdivision's standards. The social services district must require such institution to request prior authorization for payment; or

(b) a recipient is hospitalized for 15 or fewer days and does not return from the hospital immediately following the time for which the bed was reserved; or

(c) a recipient, who based on available medical information was expected to be hospitalized for 15 days or fewer, is hospitalized for more than 15 days. If prior authorization is obtained, payment will be made for the recipient's reserved bed days up to 20 days per hospital stay, or up to 30 days per hospital stay for a recipient in an RTF who was hospitalized for acute psychiatric care.

(iii) Prior authorization for payment must be requested as follows:

(a) NFs must request prior authorization from the recipient's social services district's MA professional director. The social services district must approve or disapprove in writing all or part of the request within five business days of its receipt. Requests will be disapproved under the following circumstances:

(1) when the hospitalization is clearly inappropriate, based on available medical documentation;

(2) when the recipient, at the time of hospitalization, could not reasonably have been expected to return to the institution within 15 or fewer days; or

(3) when the hospital changed the recipient's planned discharge date between the morning of the 4th day of hospital care and the 16th day of hospital care, and the new date would not permit the recipient to return to the institution within 20 days of the date of hospital admission, or the new date would not permit the recipient to return to the institution within 30 days of hospital admission for a recipient in an RTF who was hospitalized for acute psychiatric care. In this instance, prior authorization will be granted from the date of admission up to and including the date the institution was notified of the change in planned discharge date.

(b) For ICFs/MR and specialty hospitals, the social services district must accept a prior authorization that has been approved by the Commissioner of the OMRDD or his or her designee.

(c) For RTFs the social services district must accept an authorization that has been approved by the Commissioner of the OMH or his or her designee.

(iv) Special bed reservation limits may be established on an individual case basis for a recipient in an ICF/MR, specialty hospital or RTF when the recipient's hospital stay would be longer than allowable limits. Such reservations must be approved by the State Commissioner of Social Services.

(9) Absence registers and other reports. (i) Each medical inpatient institution that is an MA provider must maintain an absence register for each recipient who is absent after the institution's normal census-taking hour.

(ii) Medical institutions and agencies exercising prior approval authority must make adequate records available to federal and State auditors to verify the number and nature of reservations authorized under this section.

(iii) Medical institutions must record reserved bed days and overnight absences on any financial and statistical reports that require patient day information.

(e) Required training of nurse aides.

(1) Policy. Consistent with the regulations of the Department of Health (10 NYCRR Part 414), on and after January 1, 1990, residential health care facilities must use nurse aides who meet the following standards:

(i) if used on a full-time basis, nurse aides must have completed a training and competency evaluation program or a competency evaluation program approved by the Department of Health and have been determined to be competent to provide nursing or nursing-related services according to the Department of Health's regulations; and

(ii) if used on a temporary, per diem, leased or any other basis, nurse aides must have completed a training and competency evaluation program or a competency evaluation program approved by the Department of Health.

(2) Employment, training and evaluation of nurse aides.

(i) Residential health care facilities must comply with the regulations of the department of Health (10 NYCRR Part 414) regarding the employment, training and evaluation of nurse aides.

(ii) Before a residential health care facility employs a nurse aide, it must consult the State Nurse Aide Registry to determine whether such registry contains the name of the nurse aide.

(f) Payment for required training and competency evaluation of nurse aides.

(1) Policy. The department will pay residential health care facilities for the training and competency evaluation of nurse aides as administrative costs under the Medical Assistance program. Payment will be limited to the actual costs which residential health care facilities incur, up to a maximum payment established by the department. The department will consult with the Department of Health when developing the maximum payment permitted under this subdivision.

(2) Maximum payments for costs of training and competency evaluation of nurse aides. In determining the amount of payment to be made to residential health care facilities for the costs of training and competency evaluation of nurse aides, actual costs claimed by such facilities will be subject to a maximum payment for training and competency evaluation as follows:

(i) Training. A maximum payment established by the department for each region listed in subdivision (g) of this section, based upon regional variations in nurse aide training costs.

(ii) Competency Evaluation. A total of $165.00 per individual for competency testing for up to three tests; or a maximum of $25.00 for each individual who was employed as a nurse aide as of June 10, 1989, and who has been deemed to have met the requirement of completing an approved nurse aide training program and passing the competency evaluation examinations, or for whom the requirement has been waived by the Department of Health.

(3) Claims for payment. A residential health care facility must submit a voucher to the department detailing its actual expenditures for the training and competency evaluation of nurse aides not less than 30 days after the end of each calendar quarter. Each such voucher must include:

(i) the residential health care facility's name and provider number;

(ii) the times, dates and places of the training and/or evaluation;

(iii) the name and address of the approved program that provided the training or evaluation;

(iv) the names and other individual identifying information of employees who were trained or evaluated;

(v) the actual costs incurred for training and evaluation; and

(vi) the residential health care facility's regional code.

(4) Payment for costs of required training and competency evaluation of nurse aides expended before July 1, 1990. The department and the Department of Health will reconcile all payments for the training and competency evaluation of nurse aides included in the residential health care facilities' per diem Medical Assistance rates prior to July 1, 1990, with actual expenditures reported by facilities for that period in accordance with the following procedure:

(i) The Department of Health will provide reconciliation forms to all residential health care facilities. Residential health care facilities must report on these forms their actual costs incurred and expended before July 1, 1990, for required training and competency evaluation of nurse aides. Residential health care facilities must return completed forms to the Department of Health certifying their actual costs for the period.

(ii) The department will consider the actual costs reported to be administrative costs under the Medical Assistance program. Payment for these costs will be limited to the actual, documented expenditures by residential health care facilities, subject to the maximum payments developed by the department. Payments which were included in the residential health care facilities' per diem rates for such period for training and evaluation will be deducted from reported costs. If reported costs exceed the payments received as part of the residential health care facilities' rate, facilities will be required to submit vouchers, as specified in paragraph (3) of this subdivision, to claim any underpayments for the period. If the reported costs are less than the payments received as part of the residential health care facilities' rates, facilities' future Medical Assistance payments will be offset to recover the overpayments.

(g) Regional Ceiling: Region Counties in Region Regional Caps Albany Albany, Columbia, Greene, $450

Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, Fulton Binghamton Broome, Tioga $450 Erie Cattaraugus, Chautauqua, Erie, $475

Niagara, Orleans Elmira Chemung, Steuben, Schuyler $558 Glens Falls Essex, Warren, Washington $450 Long Island Nassau, Suffolk $483 Orange Chenango, Delaware, Orange, Otsego, $567

Sullivan, Ulster New York City Bronx, Kings, Queens, Richmond, $450

New York Poughkeepsie Dutchess, Putnam $450 Rochester Livingston, Monroe, Ontario, Wayne $589 Central Rural Cayuga, Cortland, Seneca, Tompkins, $450

Yates Syracuse Madison, Onondaga $501 Utica Herkimer, Jefferson, Lewis, Oneida, $450

Oswego Westchester Rockland, Westchester $450 Northern Rural Clinton, Franklin, Hamilton, $450

St. Lawrence Western Rural Allegany, Genesee, Wyoming $450

Doc Status: 
Complete
Effective Date: 
Wednesday, May 29, 2019
Statutory Authority: 
Social Services Law, Sections 363-a and 365-a(2)

Section 505.10 - Transportation for medical care and services.

505.10 Transportation for medical care and services. (a) Scope and purpose. This section describes the department's policy concerning payment for transportation services provided to Medical Assistance (MA) recipients, the standards to be used in determining when the MA program will pay for transportation, and the prior authorization process required for obtaining such payment. Generally, payment will be made only upon prior authorization for transportation services provided to an eligible MA recipient. Prior authorization will be granted by the prior authorization official only when payment for transportation expenses is essential in order for an eligible MA recipient to obtain necessary medical care and services which may be paid for under the MA program.

(b) Definitions. (1) Ambulance means a motor vehicle, aircraft, boat or other form of transportation designed and equipped to provide emergency medical services during transit.

(2) Ambulance service means any entity, as defined in section 3001 of the Public Health Law, which is engaged in the provision of emergency medical services and the transportation of sick, disabled or injured persons by motor vehicle, aircraft, boat or other form of transportation to or from facilities providing hospital services and which is currently certified or registered by the Department of Health as an ambulance service.

(3) Ambulette or invalid coach means a special-purpose vehicle, designed and equipped to provide nonemergency transport, that has wheelchair-carrying capacity, stretcher-carrying capacity, or the ability to carry disabled individuals.

(4) Ambulette service means an individual, partnership, association, corporation, or any other legal entity which transports the invalid, infirm or disabled by ambulette to or from facilities which provide medical care. An ambulette service provides the invalid, infirm or disabled with personal assistance as defined in this subdivision.

(5) Common medical marketing area means the geographic area from which a community customarily obtains its medical care and services.

(6) Community means either the State, a portion of the State, a city or a particular classification of the population, such as all persons 65 years of age and older.

(7) Conditional liability means that the prior authorization official is responsible for making payment only for transportation services which are provided to MA-eligible individuals in accordance with the requirements of this Title.

(8) Day treatment program or continuing treatment program means a planned combination of diagnostic, treatment and rehabilitative services certified by the Office of Mental Retardation and Developmental Disabilities or the Office of Mental Health.

(9) Department established rate means the rate for any given mode of transportation which the department has determined will ensure the efficient provision of appropriate transportation to MA recipients in order for the recipients to obtain necessary medical care or services.

(10) Emergency ambulance transportation means the provision of ambulance transportation for the purpose of obtaining hospital services for an MA recipient who suffers from severe, life-threatening or potentially disabling conditions which require the provision of emergency medical services while the recipient is being transported.

(11) Emergency medical services means the provision of initial urgent medical care including, but not limited to, the treatment of trauma, burns, and respiratory, circulatory and obstetrical emergencies.

(12) Locally prevailing rate means a rate for a given mode of transportation which is established by a transit or transportation authority or commission empowered to establish rates for public transportation, a municipality, or a third-party payor, and which is charged to all persons using that mode of transportation in a given community.

(13) Locally established rate means the rate for any given mode of transportation which the social services official has determined will ensure the efficient provision of appropriate transportation for MA recipients in order for the recipients to obtain necessary medical care or services.

(14) Nonemergency ambulance transportation means the provision of ambulance transportation for the purpose of obtaining necessary medical care or services to an MA recipient whose medical condition requires transportation by an ambulance service.

(15) Ordering practitioner means the MA recipient's attending physician or other medical practitioner who has not been excluded from enrollment in the MA program and who is requesting transportation on behalf of the MA recipient in order that the MA recipient may obtain medical care or services which are covered under the MA program. The ordering practitioner is responsible for initially determining when a specific mode of transportation to a particular medical care or service is medically necessary.

(16) Personal assistance means the provision of physical assistance by a provider of ambulette services or the provider's employee to an MA recipient for the purpose of assuring safe access to and from the recipient's place of residence, ambulette vehicle and MA covered health service provider's place of business. Personal assistance is the rendering of physical assistance to the recipient in walking, climbing or descending stairs, ramps, curbs or other obstacles; opening or closing doors; accessing an ambulette vehicle; and the moving of wheelchairs or other items of medical equipment and the removal of obstacles as necessary to assure the safe movement of the recipient. In providing personal assistance, the provider or the provider's employee will physically assist the recipient which shall include touching, or, if the recipient prefers not to be touched, guiding the recipient in such close proximity that the provider of services will be able to prevent any potential injury due to a sudden loss of steadiness or balance. A recipient who can walk to and from a vehicle, his or her home, and a place of medical services without such assistance is deemed not to require personal assistance.

(17) Prior authorization means a prior authorization official's determination that payment for a specific mode of transportation is essential in order for an MA recipient to obtain necessary medical care and services and that the prior authorization official accepts conditional liability for payment of the recipient's transportation costs.

(18) Prior authorization official means the department, a social services district, or their designated agents.

(19) Transportation attendant means any individual authorized by the prior authorization official to assist the MA recipient in receiving safe transportation.

(20) Transportation expenses means:

(i) the costs of transportation services; and

(ii) the costs of outside meals and lodging incurred when going to and returning from a provider of medical care and services when distance and travel time require these costs.

(21) Transportation services means:

(i) transportation by ambulance, ambulette or invalid coach, taxicab, common carrier or other means appropriate to the recipient's medical condition; and

(ii) a transportation attendant to accompany the MA recipient, if necessary. Such services may include the transportation attendant's transportation, meals, lodging and salary; however, no salary will be paid to a transportation attendant who is a member of the MA recipient's family.

(22) Undue financial hardship means transportation expenses which the MA recipient cannot be expected to meet from monthly income or from available resources. Such transportation expenses may include those of a recurring nature or major one-time costs.

(23) Vendor means a lawfully authorized provider of transportation services who is either enrolled in the MA program pursuant to Part 504 of this Title or authorized to receive payment for transportation services directly from a social services district or other agent designated by the department. The term vendor does not mean an MA recipient or other individual who transports an MA recipient by means of a private vehicle.
(c) Ambulette and nonemergency ambulance transportation. (1) Who may order. Only those practitioners, facilities or programs listed in paragraph (d)(4) of this section may order or submit an order on behalf of a practitioner for ambulette or nonemergency ambulance transportation services.

(2) Criteria for ordering ambulette transportation. Ambulette transportation may be ordered if any one of the following conditions exist:

(i) The recipient needs to be transported in a recumbent position and the ambulette service ordered has stretcher-carrying capacity;

(ii) The recipient is wheelchair bound and is unable to use a taxi, livery service, bus or private vehicle;

(iii) The recipient has a disabling physical condition which requires the use of a walker or crutches and is unable to use a taxi, livery service, bus or private vehicle;

(iv) The recipient has a disabling physical condition other than one described in subparagraph (iii) of this paragraph or a disabling mental condition, either of which requires the personal assistance provided by an ambulette service, and the ordering practitioner certifies, in a manner designated by the department, that the recipient cannot be transported by a taxi, livery service, bus or private vehicle and requires transportation by ambulette service; or

(v) An otherwise ambulatory recipient requires radiation therapy, chemotherapy, or dialysis treatment which results in a disabling physical condition after treatment and renders the recipient unable to access transportation without the personal assistance provided by an ambulette service.

(3) Criteria for ordering nonemergency ambulance transportation. Nonemergency ambulance transportation may be ordered when the recipient is in need of services while being transported to a provider of medical services which can only be administered by an ambulance service.

(4) Recordkeeping. The ordering practitioner must note in the recipient's patient record the condition which justifies the practitioner's ordering ambulette or nonemergency ambulance services.

(5) Audit and claim review. An ordering practitioner, or a facility or program submitting an order on the practitioner's behalf, which does not comply with this subdivision may be subjected to monetary claims and/or program sanctions as provided in section 504.8(a) of this Title.

(d) Prior authorization. (l) Generally, prior authorization must be obtained before transportation expenses are incurred. Prior authorization is not required for emergency ambulance transportation or Medicare approved transportation by an ambulance service provided to an MA-eligible person who is also eligible for Medicare Part B payments. If transportation services are provided in accordance with paragraph (e)(7) of this section, the individualized education program or interim or final individualized family services plan of an MA eligible person will qualify as the prior authorization required by this subdivision.

(2) Requests for prior authorization may be made by the MA recipient, his or her representative, or an ordering practitioner.

(3) The recipient, his or her representative, or ordering practitioner must make the request in the manner required by the prior authorization official.

(4) A request for prior authorization for nonemergency ambulance transportation must be supported by the order of an ordering practitioner who is the MA recipient's attending physician, physician's assistant or nurse practitioner. A request for prior authorization for transportation by ambulette or invalid coach must be supported by the order of an ordering practitioner who is the MA recipient's attending physician, physician's assistant, nurse practitioner, dentist, optometrist, podiatrist or other type of medical practitioner designated by the district and approved by the department. A diagnostic and treatment center, hospital, nursing home, intermediate care facility, long-term home health care program, home and community-based services waiver program, or managed care program may submit an order for ambulette or nonemergency ambulance transportation services on behalf of the ordering practitioner.

(5) Each social services district must inform applicants for and recipients of MA of the need for prior authorization in order for transportation expenses to be paid under the MA program and of the procedures for obtaining such prior authorization.

(6) The prior authorization official may approve or deny a request for prior authorization, or require the ordering practitioner to submit additional information before the request is approved or denied.

(7) The prior authorization official must use the following criteria in determining whether to authorize payment of transportation expenses in accordance with subdivision (d) of this section:

(i) when the MA recipient can be transported to necessary medical care or services by use of private vehicle or by means of mass transportation which are use by the MA recipient for the usual activities of daily living, prior authorization for payment for such transportation expenses may be denied;

(ii) when the MA recipient needs multiple visits or treatments within a short period of time and the MA recipient would suffer undue financial hardship if required to make payment for the transportation to such visits or treatments, prior authorization for payment for such transportation expenses may be granted for a means of transportation ordinarily used by the MA recipient for the usual activities of daily living;

(iii) when the nature and severity of the MA recipient's illness necessitates a mode of transportation other than that ordinarily used by the MA recipient, prior authorization for such a mode of transportation may be granted;

(iv) when the geographic locations of the MA recipient and the provider of medical care and services are such that the usual mode of transportation is inappropriate, prior authorization for another mode of transportation may be granted;

(v) when the distance to be traveled necessitates a large transportation expense and undue financial hardship to the MA recipient, prior authorization for payment for the MA recipient's usual mode of transportation may be granted;

(vi) when the medical care and services needed are available within the common medical marketing area of the MA recipient's community, prior authorization for payment of transportation expenses to such medical care and services outside the common medical marketing area may be denied;

(vii) when the need to continue a regimen of medical care or service with a specific provider necessitates travel which is outside the MA recipient's common medical marketing area, notwithstanding the fact that the medical care or service is available within the common medical marketing area, prior authorization for payment of transportation expenses to such medical care and services outside the common medical marketing area may be granted; and

(viii) when there are any other circumstances which are unique to the MA recipient and which the prior authorization official determines have an effect on the need for payment of transportation expenses, prior authorization for payment for such transportation expenses may be granted.

(e) Payment. (1) Payment for transportation expenses will be made only when transportation expenses have been prior authorized except for emergency ambulance transportation or Medicare approved transportation by an ambulance service provided to an MA-eligible person who is also eligible for Medicare Part B payments.

(2) Payment for transportation expenses will be made only to the vendor of transportation services, to the MA recipient or to an individual providing transportation services on behalf of the MA recipient.

(3) Payment will be made only for the least expensive available mode of transportation suitable to the MA recipient's needs, as determined by the prior authorization official.

(4) Payment to vendors for transportation services must not exceed the lower of the department established rate, the locally established rate, the locally prevailing rate, or the rate charged to the public, by the most direct route for the mode of transportation used. However, payment may be made in excess of the locally prevailing rate or the rate charged to the public when federal financial participation in the MA payment for transportation services is available and such payment is necessary to assure the transportation service.

(5) Payment to vendors will made only where an MA recipient is actually being transported in the vehicle.

(6) In order to receive payment for services provided to an MA recipient, a vendor must be lawfully authorized to provide transportation services on the date the services are rendered. A vendor of transportation services is lawfully authorized to provide such services if it meets the following standards:

(i) Ambulance services must be certified or registered by the Department of Health and comply with all requirements of that department;

(ii) Ambulette services must be authorized by the Department of Transportation. Ambulette drivers must be qualified under Article 19-A of the Vehicle and Traffic Law. Ambulette services and their drivers must comply with all requirements of the Department of Transportation and the Department of Motor Vehicles or have a statement in writing from the appropriate department or departments verifying that the ambulette services or their drivers are exempt from such requirements. In addition, ambulette services operating in New York City must be licensed by the New York City Taxi and Limousine Commission;

(iii) taxicab or livery services must comply with all requirements of the local municipality concerning the operation of taxicab or livery service in that municipality and with all requirements of the Department of Motor Vehicles; and

(iv) Vendors which provide transportation to day treatment or continuing treatment programs must be authorized by the Department of Transportation. Drivers for such vendors must be qualified under Article 19-A of the Vehicle and Traffic Law. Such vendors and their drivers must comply with all requirements of the Department of Transportation and the Department of Motor Vehicles or have a statement in writing from the appropriate department or departments verifying that the vendors or their drivers are exempt from such requirements.

(7) Payment is available for transportation services provided in order for the recipient to receive an MA covered service is the recipient receives such service (other than transportation services) at school or off of the school premises and both the covered service and transportation service are included in the recipient's individualized education plan. Payment is available for transportation services provided in order for the recipient, or the recipient's family member or significant other to receive an MA covered service if both the covered service and transportation service are included in the recipient's interim or final individualized family services plan. For purposes of this section, a significant other is a person who substitutes for the recipient's family, interacts regularly with the recipient, and affects directly the recipient's developmental status. Reimbursement for such services must be made in accordance with the provider agreement.

(8) Payment to a provider of ambulette services will only be made for services documented in contemporaneous records in accordance with section 504.3 of this Title. Documentation must include:

(i) the recipient's name and MA identification number;

(ii) the origination of the trip;

(iii) the destination of the trip;

(iv) the date and time of service; and

(v) the name of the driver transporting the recipient.

(9) Payment will not be made for transportation services when:

(i) the transportation services are ordinarily made available to other persons in the community without charge; however, payment may be made under such circumstances when federal financial participation in the MA payment for transportation services is available;

(ii) the transportation services are provided by a medical facility and the costs are included in the facility's MA rate;

(iii) a vendor is not actually transporting an MA recipient;

(iv) the MA recipient has access to and can make use of transportation, such as a private vehicle or mass transportation, which the recipient ordinarily uses for the usual activities of daily living unless prior authorization has been granted by the prior authorization official.

(f) Medical transportation plans and rate schedules.

(1) The department may either establish rate schedules at which transportation services can be assured or delegate such authority to the social services districts.

(2) As directed by the department, each social services district must prepare and submit for department approval a medical transportation plan which provides for essential transportation of MA recipients to and from medical care and services which may be paid for under the MA program and the rate schedules to be used by the district. The department will approve a transportation plan if it finds that the plan satisfactorily demonstrates that appropriate modes of transportation are available to MA recipients in the social services district and that the rates of payment for transportation are adequate to ensure the availability of transportation to and from medically necessary care and services which can be paid for under the MA program.

(i) Amendments to transportation plans or changes to rate schedules must be submitted at least 60 days prior to the effective date of the amendment. The department may permit a shorter notification period in circumstances where the department has adequate time to review the proposed amendment prior to its effective date. Factors which will be considered in determining whether to shorten the notification period include, but are not limited to, the complexity of the proposed amendment and the number and complexity of any other proposed amendments which the department is reviewing when the request is made. The department may also waive the notification period at the request of the social services district where a waiver would permit more efficient and effective administration of the MA program.

(ii) Plans, rate schedules or amendments may not be implemented without departmental approval.

(iii) The transportation rate schedules submitted for approval must be complete and contain the current department established rates, the locally established rates, or the locally prevailing rates for each transportation service for which the district is required to pay.

(3) Failure to obtain the approval required by this subdivision may result in the social services district being denied federal and State reimbursement for the expenses related to transporting MA recipients to providers of medical care or services.

(4) On request, a vendor of transportation services must submit pertinent cost data, which is available to the vendor, to the department or the social services district. The department or the social services district may not require a certified cost document if providing such certification will result in additional expense to the vendor. Failure to comply with the requirements of this paragraph may result in the vendor's termination from participation in the MA program.

(5) The department or each social services district for which payment of transportation services is made through the Medicaid Management Information System (MMIS) must adhere to the following requirements in establishing payment rates with vendors of transportation services:

(i) The department or the social services district must select at least one of the following:

(a) a flat-rate for all transportation services provided;

(b) a base rate for all transportation services provided, plus a mileage charge;

(c) a flat-rate for transportation services within specified areas; or

(d) a mileage rate based on distance.

(ii) The department or the social services district may establish with vendors a reduced rate for any of the following:

(a) transportation of additional persons;

(b) transportation of persons traveling to and from day treatment or continuing treatment programs; and

(c) transportation of persons for purposes of obtaining regularly recurring medical care and services.

(iii) The department or the social services district may establish an additional rate for any of the following:

(a) other transportation costs, limited to the costs of meals, lodging and transportation attendants. Such costs must be approved by the department before the social services district may establish the additional rate; and

(b) bridge and road tolls.

(6) Rates established by the department will be deemed part of all applicable social services district medical transportation plans.

Doc Status: 
Complete
Effective Date: 
Wednesday, April 29, 1998

Section 505.11 - Rehabilitation services.

505.11 Rehabilitation services. (a) Provision of care. Rehabilitation services, with the exception of services provided under subparagraph (c)(1)(iv) of this section, are available only if a physician provides a written order for the services to the medical assistance recipient and the services are an integral part of a comprehensive medical care program. Services provided under subparagraph (c)(1)(iv) of this section may be made available only if a physician, registered nurse, nurse practitioner, physical therapist, occupational therapist, or speech pathologist, who is acting within the scope of his or her practice under New York State law, recommends the medical assistance recipient for such services and the services are part of an individualized education program or an interim or final individualized family services plan. The health professional must be licensed, registered, and/or certified in accordance with the New York State Education Law and the rules of the Commissioner of Education. Such recommendation must be reflected in the individualized education program or an interim or final individualized family services plan. Rehabilitation services include not only services to the recipient but also instructions to responsible members of the family in follow-up procedures necessary for the care of the recipient.

(b) Where care may be provided. Rehabilitation services may be provided in the recipient's home, in a hospital outpatient department, in an approved clinic or outpatient medical facility not part of a hospital, in an approved medical institution or facility, in an approved home health agency, in the office of a qualified private practicing therapist or speech pathologist and, with respect to a child receiving rehabilitation services pursuant to an individualized education program or an interim or final individualized family services plan, in a school, an approved pre-school or natural environment, including home and community settings, where such child would otherwise be found.

(c) Who may provide care. Rehabilitation services may be provided by:

(1) Qualified professional personnel employed by or under contract to:

(i) an approved home health agency;

(ii) a hospital;

(iii) an approved clinic or outpatient medical facility not part of a hospital; or
(iv) a school district; an approved pre-school; a county in the State or the City of New York; an approved early intervention program; or a municipality in the State. Such services will be furnished as part of the development of or pursuant to an individualized education program or an interim or final individualized family services plan.

Speech pathology services may be provided under subparagraph (iv) of this paragraph by a teacher of the speech and hearing impaired under the direction of a speech pathologist. Under the direction of a speech pathologist means that a teacher of the speech and hearing impaired may provide services as long as a speech pathologist meets with such teacher on a regular basis and is available for consultation to assure that care is provided in accordance with the individualized education program or an interim or final individualized family services plan. Teachers of the speech or hearing impaired or speech pathologists who provide services or in the case of a speech pathologist under whose direction services are provided must be currently registered and certified in accordance with the New York State Education Law and the rules of the Commissioner of Education.

(2) A qualified private practicing therapist, therapist assistant or speech pathologist.

(d) Definitions. (1) Qualified professional shall mean:

(i) occupational therapist, occupational therapy assistant, physical therapist, physical therapist assistant or speech pathologist who is licensed and currently registered with the New York State Education Department;
(ii) occupational therapist, occupational therapy assistant, physical therapist or physical therapist assistant who possesses a limited permit and practices under the supervision of the appropriate professional in accordance with requirements of the State Education Law;

(iii) speech pathologist who is in the process of obtaining a license and has on file a "Notification of approval of the Supervisory Plan" in accordance with requirements of the State Education Law; or

(iv) out-of-state occupational therapist, occupational therapy assistant, physical therapist, physical therapist assistant or speech pathologist meeting the certification requirements of the appropriate agency of the state in which they practice.

(e) Physician's written order required. (1) Rehabilitation services must be supported by a written order of a qualified physician and must be carried out under his or her medical direction. The written order constitutes medical direction of the physician.

(2) Such written order must include a diagnostic statement and purpose of treatment.

(3) Such written order is required prior to treatment.

(4) In extraordinary circumstances and for valid reasons which must be documented, rehabilitation evaluation in the home may be initiated by a home health agency before the physician examines the recipient. Reimbursement cannot be made for more than one such rehabilitation evaluation visit to a recipient in the recipient's home before a physician's specific written order is obtained.

(5) Payment is available for a rehabilitation evaluation of a child who is suspected of having a handicapping condition or a disability and for whom an individualized education program or an interim or final individualized family services plan is being developed if the evaluation is performed in a school, an approved pre-school or a natural environment, including home and community settings, where such child would otherwise be found and the evaluation is initiated by a speech pathologist, occupational therapist, or a physical therapist.

(f) Reimbursement. (1) Except as otherwise provided in this subdivision, reimbursement for rehabilitation services must be in accordance with the rates and fees established by the Department of Health and approved by the Director of the Budget.

(2) Payment is available for rehabilitation services which are part of the development of, or furnished pursuant to, an individualized education program and which are provided by qualified professional personnel employed by, or under contract to, a school district, an approved preschool, a county in the State or the City of New York. Reimbursement for such services must be made in accordance with the provider agreement.

(3) Payment is available for rehabilitative services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and which are provided by qualified professional personnel employed by, or under contract to, an approved early intervention program or a municipality in the State. Reimbursement for such services must be made in accordance with the provider agreement.

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Effective Date: 
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Section 505.12 - Podiatry services.

505.12 Podiatry services. (a) Qualified podiatrist. (1) A podiatrist providing services under the medical assistance program shall be licensed by and currently registered to practice podiatry in New York State with the State Education Department.

(2) Podiatry services provided to eligible medical assistance patients while temporarily out-of-state shall be provided by podiatrists qualified to practice podiatry by the appropriate licensing agency of the state in which podiatry services are provided.

(b) Podiatry services coverage. (1) Effective July 1, 1992, podiatry care, services and supplies can only be made available as medically needed and as an integral part of comprehensive medical care to:

(i) A child under the age 21 eligible to receive services through the program of early and periodic screening and diagnosis. Such podiatry care and services may only be provided upon written referral by a physician, physician's assistant, nurse practitioner or nurse midwife. A referral is valid for a period of six months from the date written; and

(ii) A person eligible for benefits under Title XVIII of the federal Social Security Act as a qualified Medicare beneficiary. Podiatrists may identify such person through the department's Electronic Medicaid Eligibility Verification System (EMEVS) or through written documentation by a fiscal intermediary for Title XVIII.

(2) Necessary podiatry care, services and supplies means those services provided by qualified podiatrists.

(3) Podiatry care, services and supplies shall also include the provision of, or ordering of, clinical laboratory tests that are related to the scope of podiatric practice permitted under provisions of the State Education Law and rules and regulations of the State Education Department.

(4) Clinical laboratory tests provided or ordered by qualified podiatrists shall be limited to those tests necessary for the diagnosis or treatment of conditions of the foot. Such tests, when performed in the office of the podiatrist in the course of treatment of his own patients, shall be limited to:

(i) complete blood count or any of the separate components of such analysis, including red cell count, white cell count, or hemoglobin;

(ii) hematocrit;

(iii) sedimentation rate;

(iv) urine analysis, routine chemical; and

(v) urine analysis, routine microscopic.

(5) All other necessary clinical laboratory tests shall be performed, in accordance with the provisions of the New York State Public Health Law, by a clinical laboratory holding a valid clinical laboratory permit, in the categories for which payment is requested. A podiatrist who performs for recipients laboratory procedures other than those listed in paragraph (4) of this subdivision shall possess a laboratory permit issued in accordance with the New York State Public Health Law.

(6) All necessary radiologic procedures shall be made available as a covered benefit. Radiologic procedures mean X-rays used to establish a podiatric diagnosis for a foot-related medical problem, and may be used in conjunction with necessary treatment of foot conditions.

(c) Podiatry service limitations. (1) The medical assistance program for podiatry care, services and supplies shall not include:

(i) routine hygienic care of the feet in the absence of pathology;

(ii) clinical laboratory tests, except those permitted in paragraphs

(b)(4) and (5) of this section;

(iii) radiologic procedures outside the scope of podiatric practice as per paragraph (b)(6) of this section;

(iv) amputations and bunion operations, unless such procedures are provided in a hospital; or

(v) all podiatric prostheses in excess of $100, unless prior approval of the local professional director and prior authorization of the local social services commissioner is given.

(d) State reimbursement shall not exceed fees developed by the New York State Department of Health and approved by the New York State Director of the Budget. Care and services or supplies of podiatrists provided on dates between July 1, 1977 and October 8, 1979 are nonreimbursable under the medical assistance program, except that a local social services official (or the MMIS project director, if a county was listed in section 540.6 of this Chapter at the time service was rendered) may determine to reimburse services rendered after October 1, 1979, in accordance with this Part, if written approval is obtained from the State Commissioner.

(e) Payments under the medical assistance program to podiatrists shall not exceed fees established by the Office of Health Systems Management and promulgated by the Director of the Budget.

(f) Utilization threshold. (1) This section describes the utilization threshold that the department has established for podiatry services and supplies. Part 503 of this Title authorizes the department to establish a utilization threshold for specific provider types, including podiatry services and supplies. Part 503 also describes the application of utilization thresholds, services and procedures excluded from the utilization threshold for all provider service types subject to a threshold, the method for obtaining an exemption from or increase in the utilization threshold, notices, and the right to a fair hearing in certain situations.

(2) General rule. The department will pay for five podiatry service encounters in a benefit year. For purposes of this section, each discrete visit to a podiatrist or to a podiatry clinic is one encounter, provided that the number of services furnished and procedures performed during the visit does not exceed three.

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Section 505.13 - Family planning.

505.13 Family planning. (a) Definitions. (1) Family planning services mean the offering, arranging and furnishing of those health services which enable individuals, including minors who may be sexually active to prevent or reduce the incidence of unwanted pregnancies. Such services include professional medical counseling services, prescription drugs, nonprescription drugs and medical supplies prescribed by a qualified physician, nurse practitioner or physician's assistants, and sterilization. Family planning services do not include hysterectomy procedures.

(2) Offering of and arranging for family planning means providing services under the medical assistance program such as:

(i) disseminating information, either orally or in writing, about available family planning health services;

(ii) providing for individual or group discussions regarding family planning health services; and

(iii) providing assistance with arranging visits with medical family planning providers.

(3) Sterilization means any medical procedure, treatment or operation for the purpose of rendering an individual permanently incapable of having children.

(4) Hysterectomy means a medical procedure or operation for the purpose of removing the uterus.

(5) Medical family planning provider means physicians qualified to participate in the medical assistance program, qualified nurse-midwives, hospitals, hospital outpatient departments, diagnostic and treatment centers and health maintenance organizations operated in compliance with applicable provisions of law.

(6) Nonmedical family planning provider means persons or facilities, not otherwise eligible to enroll as a Medicaid provider, with whom a local social services district contracts to offer and arrange family planning services under the medical assistance program, title XIX of the Social Security Act.

(7) A mentally incompetent individual means an individual who has been declared mentally incompetent for any purpose by a Federal, State or local court of competent jurisdiction, unless the individual has been declared competent for purposes which include the ability to consent to sterilization.

(8) An institutionalized individual means an individual who is involuntarily confined or detained, under a civil or criminal statute, in a correctional or rehabilitative facility including a mental hospital or other facility for the care and treatment of mental illness; or, confined under a voluntary commitment, in a mental hospital or other facility for the care and treatment of mental illness.

(b) General. (1) Medical assistance shall include family planning services furnished, either directly by local social services districts or under contract with a local social services district, to individuals of child-bearing age who are eligible for medical assistance and who desire such services.

(2) Contracts with nonmedical providers shall include arrangements with medical providers willing to accept referred recipients as patients.

(c) Recipient rights. (1) Recipients shall be free from coercion or mental pressure to use family planning services.

(2) Recipients shall be free to choose the medical provider of services and the method of family planning to be used.

(d) Payment policy. (1) Payment for professional medical services shall be made to medical family planning providers at appropriate rates or fees established by the Department of Health and approved by the Division of the Budget.

(2) Payment for contracts with medical family planning providers to offer and arrange family planning services shall not duplicate payment for services, the cost of which is included in the Medicaid rate or fee established for that provider by the Department of Health and approved by the Division of the Budget.

(3) Payment for contracts with nonmedical family planning providers to offer and arrange family planning services shall be at rates negotiated by the local social services districts.

(4) Contracts and rates negotiated by local districts in accordance with this section shall be subject to approval by the Department of Social Services.

(e) Sterilizations. (1) Payment is available under the medical assistance program for sterilizations only if:

(i) the individual has given informed written consent to the sterilization;

(ii) the individual is at least 21 years old at the time consent is obtained;

(iii) the individual is not mentally incompetent;

(iv) the individual is not an institutionalized individual;

(v) at least 30 days, but not more than 180 days, have passed between informed consent and the date of sterilization except in the case of premature delivery or emergency abdominal surgery. An individual may consent to be sterilized at the time of a premature delivery or emergency abdominal surgery, if at least 72 hours have passed since the informed consent for sterilization was given. In the case of premature delivery, the informed consent must have been given at least 30 days before the expected date of delivery.

(2) Informed consent. (i) An individual has given informed consent only if:

(a) the person who obtained consent for the sterilization procedure offered to answer any questions the individual to be sterilized may have concerning the procedure, provided a copy of the consent form and provided all of the following information or advice orally to the individual to be sterilized:

(1) advice that the individual is free to withhold or withdraw consent to the procedure at any time before the sterilization without affecting the right to future care or treatment and without loss or withdrawal of any federally funded program benefits to which the individual might be otherwise entitled;

(2) a description of available alternative methods of family planning and birth control;

(3) advice that the sterilization procedure is considered to be irreversible;

(4) a thorough explanation of the specific sterilization procedure to be performed;

(5) a full description of the discomforts and risks that may accompany or follow the performing of the procedure, including an explanation of the type and possible effects of any anesthetic to be used;

(6) a full description of the benefits or advantages that may be expected as a result of the sterilization; and

(7) advice that the sterilization will not be performed for at least 30 days, except under the circumstances specified in subparagraph (1)(v) of this subdivision.

(b) suitable arrangements were made to insure that the information specified in clause (a) of this subparagraph was effectively communicated to any individual who is blind, deaf or otherwise handicapped;

(c) an interpreter was provided if the individual to be sterilized did not understand the language used on the consent form or the language used by the person obtaining consent;

(d) the individual to be sterilized was permitted to have a witness of his or her choice present when consent was obtained;

(e) the consent form requirements of paragraph (3) of this subdivision were met; and

(f) any additional requirement of State or local law for obtaining consent, except a requirement for spousal consent, was followed.

(ii) When informed consent may not be obtained. Informed consent may not be obtained while the individual to be sterilized is:

(a) in labor or childbirth; or

(b) seeking to obtain or obtaining an abortion; or

(c) under the influence of alcohol or other substances that affect the individual's state of awareness.

(3) Consent form requirements. (i) Content of consent form. The consent form must be on a form approved by the department.

(ii) Required signatures. The consent form must be signed and dated by all of the following:

(a) the individual to be sterilized;

(b) the interpreter, if one was provided;

(c) the person who obtained the consent; and

(d) the physician who performed the sterilization procedure.

(iii) Required certifications. (a) The person securing the consent must certify, by signing the consent form, that:

(1) before the individual to be sterilized signed that consent form, such person advised the individual to be sterilized that no federally funded benefits may be withdrawn because of the decision not to be sterilized;

(2) such person orally explained the requirements for informed consent as set forth on the consent form; and

(3) to be best of such person's knowledge and belief, the individual to be sterilized appeared mentally competent and knowingly and voluntarily consented to be sterilized.

(b) The physician performing the sterilization must certify, by signing the consent form, that:

(1) shortly before the performance of the sterilization, such physician advised the individual to be sterilized that no federally funded benefits may be withdrawn because of the decision not to be sterilized;

(2) such physician orally explained the requirements for informed consent as set forth on the consent form; and

(3) to the best of such physician's knowledge and belief, the individual appeared mentally competent and knowingly and voluntarily consented to be sterilized. Except in the case of premature delivery or emergency abdominal surgery, the physician must further certify that at least 30 days have passed between the date of the individual's signature on the consent form and the date upon which the sterilization was performed.

(c) In the case of premature delivery or emergency abdominal surgery performed within 30 days of consent, the physician must certify that the sterilization was performed less than 30 days, but not less than 72 hours after informed consent was obtained because of premature delivery or emergency abdominal surgery, and:

(1) in the case of premature delivery, must state the expected date of delivery; or

(2) in the case of abdominal surgery, must describe the emergency.

(d) If an interpreter is provided, the interpreter must certify that he or she translated the information and advice presented orally and read the consent form and explained its contents to the individual to be sterilized and that, to the best of the interpreter's knowledge and belief, the individual understood what the interpreter told him or her.

(f) Reimbursement. Reimbursement for family planning services shall be available in accordance with provisions of section 368-a of the Social Services Law.

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Section 505.14 - Personal care services

505.14 Personal care services.

(a) Definitions and scope of services.

(1) Personal care services means assistance with nutritional and environmental support functions and personal care functions, as specified in clauses (5)(i)(a) and (5)(ii)(a) of this subdivision. Such services must be essential to the maintenance of the patient's health and safety in his or her own home, as determined by the social services district in accordance with this section; ordered by the attending physician; based on an assessment of the patient's needs and of the appropriateness and cost-effectiveness of services specified in subparagraph (b)(3)(iv) of this section; provided by a qualified person in accordance with a plan of care; and supervised by a registered professional nurse.

(2) Continuous personal care services means the provision of uninterrupted care, by more than one personal care aide, for more than 16 hours in a calendar day for a patient who, because of the patient’s medical condition, needs assistance during such calendar day with toileting, walking, transferring, turning and positioning, or feeding and needs assistance with such frequency that a live-in 24-hour personal care aide would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(3) Personal care services, as defined in this section, can be provided only if the services are medically necessary and the social services district reasonably expects that the patient's health and safety in the home can be maintained by the provision of such services, as determined in accordance with this section.

(i) The patient's medical condition shall be stable, which shall be defined as follows:

(a) the condition is not expected to exhibit sudden deterioration or improvement; and

(b) the condition does not require frequent medical or nursing judgment to determine changes in the patient's plan of care; and

(c)(1) the condition is such that a physically disabled individual is in need of routine supportive assistance and does not need skilled professional care in the home; or

(2) the condition is such that a physically disabled or frail elderly individual does not need professional care but does require assistance in the home to prevent a health or safety crisis from developing.

(ii) The patient shall be self-directing, which shall mean that he/she is capable of making choices about his/her activities of daily living, understanding the impact of the choice and assuming responsibility for the results of the choice. Patients who are nonself-directing, and who require continuous supervision and direction for making choices about activities of daily living shall not receive personal care services, except under the following conditions:

(a) supervision or direction is provided on an interim or part-time basis as part of a plan of care in which the responsibility for making choices about activities of daily living is assumed by a self-directing individual living within the same household; or

(b) supervision or direction is provided on an interim or part-time basis as part of a plan of care in which the responsibility for making choices about activities of daily living is assumed by a self-directing individual not living within the same household; or

(c) supervision or direction is provided on an interim or part-time basis as part of a plan of care in which the responsibility for making choices about activities of daily living is assumed by an outside agency or other formal organization. The local social services department may be the outside agency.

(iii)(a) Personal care services, including continuous personal care services and live-in 24-hour personal care services as defined in paragraphs (2) and (4), respectively, of this subdivision, shall not be authorized to the extent that the patient’s need for assistance can be met by the following:

(1) voluntary assistance available from informal caregivers including, but not limited to, the patient’s family, friends, or other responsible adult;

(2) formal services provided or funded by an entity, agency or program other than the medical assistance program; or

(3) adaptive or specialized equipment or supplies including, but not limited to, bedside commodes, urinals, walkers, and wheelchairs, when such equipment or supplies can be provided safely and cost-effectively.

(b) The social services district must first determine whether the patient, because of the patient’s medical condition, would be otherwise eligible for personal care services, including continuous personal care services or live-in 24-hour personal care services. For patients who would be otherwise eligible for personal care services, the district must then determine whether, and the extent to which, the patient’s need for assistance can be met by voluntary assistance from informal caregivers, by formal services, or by adaptive or specialized equipment or supplies, as specified in subclauses (a)(1) through (a)(3) of this subparagraph.

(4) Live-in 24-hour personal care services means the provision of care by one personal care aide for a patient who, because of the patient’s medical condition, needs assistance during a calendar day with toileting, walking, transferring, turning and positioning, or feeding and whose need for assistance is sufficiently infrequent that a live-in 24-hour personal care aide would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(5) Personal care services shall include the following two levels of care, and be provided in accordance with the following standards:

(i) Level I shall be limited to the performance of nutritional and environmental support functions.

(a) Nutritional and environmental support functions include assistance with the following:

(1) making and changing beds;

(2) dusting and vacuuming the rooms which the patient uses;

(3) light cleaning of the kitchen, bedroom and bathroom;

(4) dishwashing;

(5) listing needed supplies;

(6) shopping for the patient if no other arrangements are possible;

(7) patient's laundering, including necessary ironing and mending;

(8) payment of bills and other essential errands; and

(9) preparing meals, including simple modified diets.

(b) The authorization for Level I services shall not exceed eight hours per week.

(ii) Level II shall include the performance of nutritional and environmental support functions specified in clause (i)(a) of this paragraph and personal care functions.

(a) Personal care functions include assistance with the following:

(1) bathing of the patient in the bed, the tub or in the shower;

(2) dressing;

(3) grooming, including care of hair, shaving and ordinary care of nails, teeth and mouth;

(4) toileting; this may include assisting the patient on and off the bedpan, commode or toilet;

(5) walking, beyond that provided by durable medical equipment, within the home and outside the home;

(6) transferring from bed to chair or wheelchair;

(7) turning and positioning;

(8) preparing of meals in accordance with modified diets, including low sugar, low fat, low salt and low residue diets;

(9) feeding;

(10) administration of medication by the patient, including prompting the patient as to time, identifying the medication for the patient, bringing the medication and any necessary supplies or equipment to the patient, opening the container for the patient, positioning the patient for medication and administration, disposing of used supplies and materials and storing the medication properly;

(11) providing routine skin care;

(12) using medical supplies and equipment such as walkers and wheelchairs; and

(13) changing of simple dressings.

(b) Before continuous personal care services or live-in 24-hour personal care services may be authorized, additional requirements for the authorization of such services, as specified in clause (b)(4)(i)(c) of this section, must be met.

(6) Shared aide means a method of providing personal care services under which a social services district authorizes one or more nutritional and environmental support functions or personal care functions for each personal care services recipient who resides with other personal care services recipients in a designated geographic area, such as in the same apartment building, and a personal care services provider completes the authorized functions by making short visits to each such recipient.

(b) Criteria and authorization for provision of services. (1) When the local social services department receives a request for services, that department shall determine the applicant's eligibility for medical assistance.

(2) The initial authorization for personal care services must be based on the following:

(i) a physician's order that meets the requirements of subparagraph (3)(i) of this subdivision;

(ii) a social assessment that meets the requirements of subparagraph (3)(ii) of this subdivision;

(iii) a nursing assessment that meets the requirements of subparagraph (3)(iii) of this subdivision;

(iv) an assessment of the patient's appropriateness for hospice services and assessments of the appropriateness and cost-effectiveness of the services specified in subparagraph (3)(iv) of this subdivision; and

(v) such other factors as may be required by paragraph (4) of this subdivision.

(3) The initial authorization process shall include the following procedures:

(i) A physician's order must be completed on the form required by the department.

(a) The physician's order form must be completed by a physician licensed in accordance with Article 131 of the Education Law, a physician's assistant or a specialist's assistant registered in accordance with Article 131-B of the Education Law, or a nurse practitioner certified in accordance with Article 139 of the Education Law.

(1) Such medical professional must complete the physician's order form within 30 calendar days after he or she conducts a medical examination of the patient, and the physician's order form must be forwarded to a social services district or another entity in accordance with clause (c) of this subparagraph.

(2) Such medical professional must complete the physician's order form by accurately describing the patient's medical condition and regimens, including any medication regimens, and the patient's need for assistance with personal care services tasks and by providing only such other information as the physician's order form requires.

(3) Such medical professional must not recommend the number of hours of personal care services that the patient should be authorized to receive.

(b) A physician must sign the physician's order form and certify that the patient can be cared for at home and that the information provided in the physician's order form accurately describes the patient's medical condition and regimens, including any medication regimens, and the patient's need for assistance with personal care services tasks, at the time of the medical examination.

(c) Within 30 calendar days after the medical examination of the patient, the physician, other medical professional, the patient or the patient's representative must forward a completed and signed copy of the physician's order form to the social services district for completion of the social assessment; however, when the social services district has delegated, pursuant to subdivision (g) of this section, the responsibility for completing the social assessment to another agency, the physician, other medical professional, the patient or the patient's representative must forward a completed and signed copy of the physician's order form to such other agency rather than to the social services district.

(d) When the social services district, or the district's designee pursuant to subdivision (g) of this section, is responsible for completing the social assessment but is not also responsible for completing the nursing assessment, the district or its designee must forward a completed and signed copy of the physician's order form to the person or agency responsible for completing the nursing assessment.

(e) The physician's order is subject to the provisions of Parts 515, 516, 517 and 518 of this Title. These Parts permit the department to impose monetary penalties on, or sanction and recover overpayments from, providers or prescribers of medical care, services, or supplies when medical care, services, or supplies that are unnecessary, improper or exceed patients' documented medical needs are provided or ordered.

(ii) The social assessment shall be completed by professional staff of the social services district on forms approved by the Department.

(a) The social assessment shall include a discussion with the patient to determine perception of his/her circumstances and preferences.

(b) The social assessment shall include an evaluation of the potential contribution of informal caregivers, such as family and friends, to the patient's care, and shall consider all of the following:

(1) number and kind of informal caregivers available to the patient;

(2) ability and motivation of informal caregivers to assist in care;

(3) extent of informal caregivers' potential involvement;

(4) availability of informal caregivers for future assistance; and

(5) acceptability to the patient of the informal caregivers' involvement in his/her care.

(c) When live-in 24-hour personal care services is indicated, the social assessment shall evaluate whether the patient's home has adequate sleeping accommodations for a personal care aide.

(d) The social assessment shall be completed on a timely basis and shall be current.

(iii) The nursing assessment shall be completed by a nurse from the certified home health agency, a nurse employed by, or under contract with, the local social services department, or a nurse employed by a voluntary or proprietary agency under contract with the local social services department.

(a) A nurse employed by, or under contract with, the local social services department or by a voluntary or proprietary agency under contract with the local social services department shall have the following minimum qualifications:

(1) a license and current registration to practice as a registered professional nurse in New York State; and

(2) at least two years of satisfactory recent experience in home health care.

(b) The nursing assessment shall be completed within five working days of the request and shall include the following:

(1) a review and interpretation of the physician's order;

(2) the primary diagnosis code from the ICD-9-CM;

(3) an evaluation of the functions and tasks required by the patient;

(4) an evaluation whether adaptive or specialized equipment or supplies including, but not limited to, bedside commodes, urinals, walkers, and wheelchairs, can meet the patient’s need for assistance with personal care functions and whether such equipment or supplies can be provided safely and cost-effectively;

(5) an evaluation whether adaptive or specialized equipment or supplies including, but not limited to, bedside commodes, urinals, walkers and wheelchairs, can meet the patient's need for assistance with personal care functions, and whether such equipment or supplies can be provided safely and cost-effectively.

(6) development of a plan of care in collaboration with the patient or his/her representative; and

(7) recommendations for authorization of services.

(iv) Assessment of other services.

(a) Before authorizing or reauthorizing personal care services, a social services district must assess each patient to determine the following:

(1) whether personal care services can be provided according to the patent's plan of care, whether such services are medically necessary and whether the social services district reasonably expects that such services can maintain the patient's health and safety in his or her home, as determined in accordance with the regulations of the Department of Health;

(2) whether the patient can be served appropriately and more cost-effectively by personal care services provided under a consumer directed personal assistance program authorized in accordance with Section 365-f of the Social Services Law;

(3) whether the functional needs, living arrangements and working arrangements of a patient who receives personal care services solely for monitoring the patient's medical condition and well-being can be monitored appropriately and more cost-effectively by personal emergency response services provided in accordance with section 505.33 of this Part;

(4) whether the functional needs, living arrangements and working arrangements of the patient can be maintained appropriately and more cost-effectively by personal care services provided by shared aides in accordance with subdivision (k) of this section;

(5) whether a patient who requires, as a part of a routine plan of care, part-time or intermittent nursing or other therapeutic services or nursing services provided to a medically stable patient, can be served appropriately and more cost-effectively through the provision of home health services in accordance with section 505.23 of this Part;

(6) whether the patient can be served appropriately and more cost-effectively by other long-term care services, including, but not limited to, services provided under the long-term home health care program (LTHHCP), the assisted living program or the enriched housing program;

(7) whether the patient can be served appropriately and more cost-effectively by using adaptive or specialized medical equipment or supplies covered by the MA program including, but not limited to, bedside commodes, urinals, walkers, wheelchairs and insulin pens; and

(8) whether personal care services can be provided appropriately and more cost-effectively by the personal care services provider in cooperation with an adult day health program.

(b) If a social services district determines that a patient can be served appropriately and more cost-effectively through the provision of services described in subclauses (a)(2) through (8) of this subparagraph, and the social services district determines that such services are available in the district, the social services district must first consider the use of such services in developing the patient's plan of care. The patient must use such services rather than personal care services to achieve the maximum reduction in his or her need for home health services or other long-term care services.

(c) A social services district may determine that the assessments required by subclauses (a)(1) through (8) of this subparagraph may be included in the social assessment or the nursing assessment.

(d) A social services district must have an agreement with each hospice that is available in the district. The agreement must specify the procedures for notifying patients who the social services district reasonably expects would be appropriate for hospice services of the availability of hospice services and for referring patients to hospice services. A social services district must not refer a patient to hospice services if the patient's physician has determined that hospice services are medically contraindicated for the patient or the patient does not choose to receive hospice services.

(v) An authorization for services shall be prepared by staff of the local social services department.

(4) The initial authorization process shall include additional requirements for authorization of services in certain case situations:

(i) An independent medical review of the case shall be completed by the local professional director, a physician designated by the local professional director or a physician under contract with the local social services department to review personal care services cases when:

(a) there is disagreement between the physician's order and the social, nursing and other required assessments; or

(b) there is question about the level and amount of services to be provided; or

(c) the case involves the provision of continuous personal care services or live-in 24-hour personal care services as defined in paragraphs (a)(2) and (a)(4), respectively, of this section. Documentation for such cases is subject to the following requirements:

(1) The social assessment shall demonstrate that all alternative arrangements for meeting the patient's medical needs have been explored and are infeasible including, but not limited to, the provision of personal care services in combination with other formal services or in combination with voluntary contributions of informal caregivers. In cases involving live-in 24-hour personal care services, the social assessment shall also evaluate whether the patient’s home has sleeping accommodations for a personal care aide. When the patient’s home has no sleeping accommodations for a personal care aide, continuous personal care services must be authorized for the patient; however, should the patient’s circumstances change and sleeping accommodations for a personal care aide become available in the patient’s home, the district must promptly review the case. If a reduction of the patient’s continuous personal care services to live-in 24-hour personal care services is appropriate, the district must send the patient a timely and adequate notice of the proposed reduction.

(2) The nursing assessment shall document the following:

(i) whether the physician’s order has documented a medical condition that causes the patient to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, or feeding;

(ii) the specific personal care functions with which the patient needs frequent assistance during a calendar day;

(iii) the frequency at which the patient needs assistance with these personal care functions during a calendar day;

(iv) whether the patient needs similar assistance with these personal care functions during the patient’s waking and sleeping hours and, if not, why not; and

(v) whether, were live-in 24-hour personal care services to be authorized, the personal care aide would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(ii) The local professional director, or designee, must review the physician’s order and the social and nursing assessments in accordance with the standards for services set forth in subdivision (a) of this section, and is responsible for the final determination of the amount and duration of services to be authorized.

(iii) When determining whether continuous personal care services or live-in 24-hour personal care services should be authorized, the local professional director, or designee, must consider the information in the social and nursing assessments.

(iv) The local professional director or designee may consult with the patient’s treating physician and may conduct an additional assessment of the patient in the home. The final determination must be made with reasonable promptness, generally not to exceed seven business days after receipt of the physician’s order and the completed social and nursing assessments, except in unusual circumstances including, but not limited to, the need to resolve any outstanding questions regarding the amount or duration of services to be authorized.

(5) The authorization for personal care services shall be completed prior to the initiation of services.

(i) The social services district shall authorize only the hours of services actually required by the patient.

(ii) The duration of the authorization period shall be based on the patient's needs as reflected in the required assessments. In determining the duration of the authorization period, the following shall be considered:

(a) the patient's prognosis and/or potential for recovery; and

(b) the expected length of any informal caregivers' participation in caregiving; and

(c) the projected length of time alternative services will be available to meet a part of the patient's needs.

(iii) No authorization for personal care services shall exceed six months. The local social services department may equest approval for an exception to allow for authorization periods up to 12 months. The request must be accompanied by the following:

(a) a description of the patients who will be considered for an expanded authorization period; and

(b) a description of the local social services department's process to assure that the delivery of services is responsive to changes in the patient's condition and allows immediate access to services by the patient, patient's physician, assessing nurse and provider agency if the need for services changes during the expanded authorization period.

(iv) (a) The social services district must deny or discontinue personal care services when such services are not medically necessary or are no longer medically necessary or when the social services district reasonably expects that such services cannot maintain or continue to maintain the client's health and safety in his or her home.

(b) The social services district must notify the client in writing of its decision to authorize, reauthorize, increase, decrease, discontinue or deny personal care services on forms required by the department. The client is entitled to a fair hearing and to have such services continued unchanged until the fair hearing decision is issued(aid-continuing) in accordance with the requirements outlined in Part 358 of this Title.

(c) The social services district’s determination to deny, reduce or discontinue personal care services must be stated in the client notice.

(1) Appropriate reasons and notice language to be used when denying personal care services include but are not limited to the following:

(i) the client’s health and safety cannot be assured with the provision of personal care services. The notice must identify the reason or reasons that the client’s health and safety cannot be assured with the provision of personal care services;

(ii) the client’s medical condition is not stable. The notice must identify the client’s medical condition that is not stable;

(iii) the client is not self-directing and has no one to assume those responsibilities;

(iv) the services the client needs exceed the personal care aide’s scope of practice. The notice must identify the service or services that the client needs that exceeds the personal care aide’s scope of practice;

(v) the client refused to cooperate in the required assessment;

(vi) a technological development, which the notice must identify, renders certain services unnecessary or less time-consuming;

(vii) the client resides in a facility or participates in another program or receives other services, which the notice must identify, which are responsible for the provision of needed personal care services; and

(viii) the client can be more appropriately and cost-effectively served through other Medicaid programs or services, which the notice must identify.

(2) Appropriate reasons and notice language to be used when reducing or discontinuing personal care services include but are not limited to the following:

(i) the client’s medical or mental condition or economic or social circumstances have changed and the district determines that the personal care services provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours. For proposed discontinuances, this includes but is not limited to cases in which: the client’s health and safety can no longer be assured with the provision of personal care services; the client’s medical condition is no longer stable; the client is no longer self-directing and has no one to assume those responsibilities; or the services the client needs exceed the personal care aide’s scope of practice. The notice must identify the specific change in the client’s medical or mental condition or economic or social circumstances from the last authorization or reauthorization and state why the services should be reduced or discontinued as a result of the change;

(ii) a mistake occurred in the previous personal care services authorization or reauthorization. The notice must identify the specific mistake that occurred in the previous authorization or reauthorization and state why the prior services are not needed as a result of the mistake;

(iii) the client refused to cooperate in the required reassessment;

(iv) a technological development, which the notice must identify, renders certain services unnecessary or less time-consuming;

(v) the client resides in a facility or participates in another program or receives other services, which the notice must identify, which are responsible for the provision of needed personal care services; and

(vi) the client can be more appropriately and cost-effectively served through other Medicaid programs and services, which the notice must identify.

(d) The social services district may not authorize or reauthorize personal care services based upon a task-based assessment when the applicant or recipient of personal care services has been determined by the social services district or the State to be in need of 24 hour personal care, including continuous personal care services, live-in 24 hour personal care services or the equivalent provided by formal services or informal caregivers.

(v) When services are authorized, the local social services department shall provide the agency or person providing services, the patient receiving the services, and the agency or individual supervising the services, with written information about the services authorized, including the functions and tasks required and the frequency and duration of the services.

(vi) All services provided shall be in accordance with the authorization. No change in functions or tasks or hours of services delivered shall be made without notification to, and approval of, the social services district.

(vii) The local social services department shall notify the patient in writing when a change in the amount of services authorized is being considered. Notification shall be provided in accordance with the requirements specified in subparagraph (b)(5)(v) of this section.

(viii) Reauthorization for personal care services shall follow the procedures outlined in paragraphs (2) through (4) of this subdivision, with the following exceptions:

(a) Reauthorization of Level I services shall not require a nursing assessment if the physician's order indicates that the patient's medical condition is unchanged.

(b) Reauthorization of Level II services shall include an evaluation of the services provided during the previous authorization period. The evaluation shall include a review of the nursing supervisory reports to assure that the patient's needs have been adequately met during the initial authorization period.

(ix) When an unexpected change in the patient's social circumstances, mental status or medical condition occurs which would affect the type, amount or frequency of personal care services being provided during the authorization period, the social services district is responsible for making necessary changes in the authorization on a timely basis in accordance with the following procedures:

(a) When the change in the patient's services needs results solely from a change in his/her social circumstances including, but not limited to, loss or withdrawal of support provided by informal caregivers, the local social services department shall review the social assessment, document the patient's social circumstances and make changes in the authorization as indicated. A new physician's order and nursing assessment shall not be required.

(b) When the change in the patient's services needs results from a change in his/her mental status including, but not limited to, loss of his/her ability to make judgments, the local social services department shall review the social assessment, document the changes in the patient's mental status and take appropriate action as indicated.

(c) When the change in the patient's services needs results from a change in his/her medical condition, the local social services department shall obtain a new physician's order and a new nursing assessment and shall complete a new social assessment.

(6) Nothing in this subdivision shall preclude the provision of personal care services in combination with other services when a combination of services can appropriately and adequately meet the patient's needs.

(7) This paragraph sets forth expedited procedures for social services districts’ determinations of medical assistance (“Medicaid”) eligibility and personal care services eligibility for Medicaid applicants with an immediate need for personal care services.

(i) The following definitions apply to this paragraph:

(a) A Medicaid applicant with an immediate need for personal care services means an individual seeking Medicaid coverage who:

(1)(i) is not currently authorized for Medicaid coverage; or

(ii) is currently authorized for Medicaid coverage only for community-based coverage without long-term care services; and

(2) provides to the social services district:

(i) a physician’s order for personal care services; and

(ii) a signed attestation on a form required by the Department that the applicant has an immediate need for personal care services (“attestation of immediate need”) and that:

(A) no voluntary informal caregivers are available, able, and willing to provide or continue to provide needed assistance to the applicant;

(B) no home care services agency is providing needed assistance to the applicant;

(C) adaptive or specialized equipment or supplies including but not limited to bedside commodes, urinals, walkers, or wheelchairs, are not in use to meet, or cannot meet, the applicant’s need for assistance; and

(D) third party insurance or Medicare benefits are not available to pay for needed assistance.

(b) A complete Medicaid application means a signed Medicaid application and all documentation necessary for the social services district to determine the applicant’s Medicaid eligibility. For purposes of this paragraph, an applicant who would otherwise be required to document accumulated resources may attest to the current value of any real property and to the current dollar amount of any bank accounts. After the determination of Medicaid eligibility, if the commissioner or the district has information indicating an inconsistency between the value or dollar amount of such resources and the value or dollar amount to which the applicant had attested prior to being determined eligible for Medicaid, and the inconsistency is material to the individual’s Medicaid eligibility, the district must request documentation adequate to verify such resources.

(ii) The social services district must determine whether the applicant has submitted a complete Medicaid application. If the applicant has not submitted a complete Medicaid application, the district must notify the applicant of the additional documentation that the applicant must provide and the date by which the applicant must provide such documentation.

(a) When the applicant submits the Medicaid application together with the physician’s order and the signed attestation of immediate need, the district must provide such notice as soon as possible and no later than four calendar days after receipt of these documents.

(b) When the applicant submits the Medicaid application and subsequently submits the physician’s order, the signed attestation of immediate need, or both such documents, the district must provide such notice as soon as possible and no later than four calendar days after receipt of both the physician’s order and the signed attestation of immediate need.

(iii) As soon as possible after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for personal care services, but no later than seven calendar days after receipt of a complete Medicaid application from such an applicant, the social services district must determine whether the applicant is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and notify the applicant of such determination.

(iv) As soon as possible after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for personal care services, but no later than twelve calendar days after receipt of a complete Medicaid application from such an applicant, the social services district must:

(a) obtain or complete a social assessment, nursing assessment, and an assessment of other services pursuant to subparagraphs (3)(ii) through (3)(iv) of this subdivision; and

(b) determine whether the applicant, if determined eligible for Medicaid, would be eligible for personal care services and, if so, the amount and duration of the personal care services that would be authorized should the applicant be determined eligible for Medicaid; provided, however, that personal care services shall be authorized only for applicants who are determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services. In no event shall personal care services be authorized for a Medicaid applicant unless the applicant has been determined eligible for Medicaid, including Medicaid coverage of community-based long-term care services.

(v) Social services districts must provide Medicaid applicants with the required attestation of immediate need form and such other information regarding the expedited Medicaid eligibility determination and personal care services assessment procedures set forth in this paragraph as the Department may require.

(8) This paragraph sets forth expedited personal care services assessment procedures for medical assistance (“Medicaid”) recipients with an immediate need for personal care services.

(i) A Medicaid recipient with an immediate need for personal care services means an individual seeking personal care services who:

(a)(1) is exempt or excluded from enrollment in a managed long term care plan operating pursuant to Section 4403-f of the Public Health Law or a managed care provider operating pursuant to Section 364-j of the Social Services Law; or

(2) is not exempt or excluded from enrollment in a plan or provider described in subclause (a)(1) but is not yet enrolled in any such plan or provider; and

(b)(1) was a Medicaid applicant with an immediate need for personal care services pursuant to paragraph (7) of this subdivision who was determined, pursuant to such paragraph, to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and who was also determined pursuant to such paragraph to be eligible for personal care services; or

(2) is a Medicaid recipient who has been determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and who provides to the social services district:

(i) a physician’s order for personal care services; and

(ii) a signed attestation on a form required by the Department that the recipient has an immediate need for personal care services (“attestation of immediate need”) and that:

(A) no voluntary informal caregivers are available, able, and willing to provide or continue to provide needed assistance to the recipient;

(B) no home care services agency is providing needed assistance to the recipient;

(C) adaptive or specialized equipment or supplies including but not limited to bedside commodes, urinals, walkers, or wheelchairs, are not in use to meet, or cannot meet, the recipient’s need for assistance; and

(D) third party insurance or Medicare benefits are not available to pay for needed assistance.

(ii) With regard to a Medicaid recipient with an immediate need for personal care services who is described in subclause (i)(b)(1) of this paragraph, the social services district must promptly notify the recipient of the amount and duration of personal care services to be authorized and issue an authorization for, and arrange for the provision of, such personal care services, which must be provided as expeditiously as possible. With respect to those recipients who are neither exempt nor excluded from enrollment in a managed long term care plan or managed care provider, the district must authorize personal care services to be provided until such recipients are enrolled in such a plan or provider.

(iii)(a) With regard to a Medicaid recipient with an immediate need for personal care services who is described in subclause (i)(b)(2) of this paragraph, the social services district, as soon as possible after receipt of the physician’s order and signed attestation of immediate need, but no later than twelve calendar days after receipt of such documentation, must:

(1) obtain or complete a social assessment, nursing assessment, and an assessment of other services pursuant to subparagraphs (3)(ii) through (3)(iv) of this subdivision; and

(2) determine whether the recipient is eligible for personal care services and, if so, the amount and duration of the personal care services to be authorized.

(b) The social services district must promptly notify the recipient of the amount and duration of personal care services to be authorized and issue an authorization for, and arrange for the provision of, such personal care services, which must be provided as expeditiously as possible. With respect to those recipients who are neither exempt nor excluded from enrollment in a managed long term care plan or managed care provider, the district must authorize personal care services to be provided until such recipients are enrolled in such a plan or provider.

(iv) Social services districts must provide Medicaid recipients with the required attestation of immediate need form and such other information regarding the expedited personal care services assessment procedures set forth in this paragraph as the Department may require.

(c) Contracting for the provision of personal care services.

(1) Each social services district must have contracts or other written agreements with all agencies or persons providing personal care services or any support functions for the delivery of personal care services. As used in this subdivision, support functions for the delivery of personal care services include, but are not necessarily limited to, nursing assessments, nursing supervision and case management, when provided according to subdivisions (b), (f) and (g) of this section, respectively.

(2) The social services district must use the model contract for personal care services that the department requires to be used, except as provided in paragraph (4) of this subdivision.

(3)(i) Under the following conditions, the social services district may attach local variations to the model contract:

(a) The local variations do not change the model contract's requirements; and

(b) The social services district submits its proposed local variations to the department on forms the department requires to be used.

(ii) The social services district must not implement any local variations to the model contract until the department approves the local variations. The department will notify the social services district in writing of its approval or disapproval of the local variations within 60 business days after it receives the local variations. If the department disapproves the local variations, the social services district may submit revisions to the local variations. The department will notify the social services district in writing of its approval or disapproval of such revisions within 60 business days after it receives the revisions.

(4)(i) Under the following conditions, the social services district may use a local contract or other written agreement as an alternative to the model contract:

(a) The social services district cannot use the model contract due to local programmatic, legal, or fiscal concerns;

(b) The social services district can demonstrate that the local contract or agreement includes a provision comparable to each provision contained in the model contract and, if the local contract or agreement is with another public or governmental agency, it includes all requirements specified in this section; and

(c) The social services district submits a request for use of a local contract or agreement to the department on forms the department requires to be used.

(ii) The social services district must not implement a local contract or agreement until the department approves it. The department will notify the social services district in writing of its approval or disapproval of the local contract or agreement within 60 business days after it receives the district's request to use the local contract or agreement. The district's request must be accompanied by the proposed local contract or agreement and a comparison of the contents of the proposed local contract or agreement with the department's requirements. If the department disapproves the local contract or agreement, the social services district may submit revisions to the contract or agreement. The department will notify the social services district in writing of its approval or disapproval of such revisions within 60 business days after it receives the revisions.

(5)(i) The social services district must use a contract or other written agreement for support functions for the delivery of personal care services, including case management, nursing assessments and nursing supervision, that the department approves to be used.

(ii) The social services district must not implement any contract or agreement for case management, nursing assessments, nursing supervision, or any other support function until the department approves such contract or agreement.

(iii) The department will notify the social services district in writing of its approval or disapproval of the contract or agreement within 60 business days after it receives the contract or agreement. If the department disapproves the contract or agreement, the social services district may submit revisions to the contract or agreement. The department will notify the social services district in writing of its approval or disapproval of such revisions within 60 business days after it receives the revisions.

(6) The social services district must include in each contract or other written agreement with a provider of personal care services the rate at which the provider will be reimbursed for the provision of personal care services or for any support functions for the delivery of personal care services. The rate at which the provider will be reimbursed will be determined in accordance with subdivision (h) of this section.

(7) The social services district must base the duration of the contract or other written agreement on the district's fiscal year, or a portion thereof.

(8) Before entering into a contract or other written agreement with any provider agency, the social services district must determine that:

(i) the provider agency is certified in accordance with 10 NYCRR Parts 760 and 761, licensed in accordance with 10 NYCRR Part 765 or exempt from licensure in accordance with 10 NYCRR Subpart 765-2 because it provides personal care services exclusively to persons who are eligible for medical assistance (MA);

(ii) the provider agency, without subcontracting with other provider agencies, is able to provide personnel who meet the minimum criteria for providers of personal care services, as described in subdivision (d) of this section, and who have successfully completed a training program approved by the department, as provided in subdivision (e) of this section;

(iii) the provider agency is fiscally sound;

(iv) the provider agency has obtained appropriate insurance coverage to protect the social services district from liability claims resulting from acts, omissions, or negligence of provider agency personnel that cause personal injuries to personal care services recipients or such personnel and that the provider agency has agreed to maintain such insurance coverage while its contract with the social services district is in effect; and

(v) the provider agency has agreed that it will not substitute another provider agency to provide personal care services to an MA recipient unless the provider agency has notified the district of the provider agency's need to substitute another provider agency and the district has approved such substitution.

(9) Each social services district must have a plan to monitor and audit the delivery of personal care services provided pursuant to its contracts or other written agreements with provider agencies. The social services district must submit this plan to the department for approval. At a minimum, the plan must include the following:

(i) an evaluation of the provider agency's ability to deliver personal care services, including the extent to which trained personnel are available to provide such services;

(ii) a comparison of the provider agency's performance with the requirements of this section and with the performance standards specified in the contract or agreement; and

(iii) a review of the provider agency's fiscal practices.

(10) When the provider agency is a home care services agency that provides personal care services exclusively to persons eligible for MA and is therefore exempt from licensure, the social services district must include the following items in the monitoring plan in addition to those required by paragraph (11) of this subdivision:

(i) a review of the provider agency's administrative and personnel policies;

(ii) a review of all provider agency recordkeeping relevant to the provision of personal care services; and

(iii) an evaluation of the quality of care the provider agency provides.

(11) Each social services district must also have a plan to monitor and audit any support functions for the delivery of personal care services, as defined in paragraph (1) of this subdivision. The social services district must submit this plan to the department for approval.

(12) The social services district must maintain a record of its monitoring activities. The district must include a report of such monitoring activities in the annual plan the district submits to the department pursuant to subdivision (j) of this section.

(d) Providers of personal care services.

(1) Personal care services may be provided by persons with the title of homemaker, homemaker-home health aide, home health aide, or personal care aide. Such persons must meet all other requirements of this section. When Level I (environmental and nutritional) personal care functions only, as defined in subdivision (a) of this section, are required, persons with the title of housekeeper may be used.

(2) The local social services department shall use one or a combination of the following to provide personal care services:

(i) local social services department staff employed and trained to provide personal care services and other home care services;

(ii) a contractual agreement with a long-term home health care program for services of a person providing personal care services;

(iii) a contractual agreement approved by the Department and the State Director of the Budget with a certified home health agency for the services of a person providing personal care services;

(iv) a contractual agreement approved by the Department and the State Director of the Budget with a voluntary homemaker-home health aide agency for the service of persons providing personal care services;

(v) a contractual agreement approved by the Department and the State Director of the Budget with a proprietary agency for the service of persons providing personal care services;

(vi) a contractual agreement approved by the Department and the State Director of the Budget with an individual provider of service for the provision of Level I(environmental and nutritional) personal care functions only;

(vii) a contractual agreement approved by the Department and the State Director of the Budget with an individual provider of service when the service needs require more than Level Ic(environmental and nutritional) personal care functions only. Such providers of service may be used only under the following conditions:

(a) prior approval has been received by the local social services department from the Department to use individual providers in cases where the local social services department can justify that such providers of service are the only alternative available to the district. Such approval will be based upon the justification provided by the local department of social services and the agency's plan for the use of such individual providers of service;

(b) the local social services department shall review and evaluate the qualifications of each individual provider in accordance with procedures established by the local department of social services and approved by the Department;

(c) in each case where an individual provider of personal care services is used, the individual provider shall receive on-the-job instruction and on-going nursing supervision from a nurse on staff of the local department of social services or a nurse from a certified home health agency. When such supervision is provided under contract with a certified home health agency, the local social services department shall monitor the case to assure that the service is delivered as authorized;

(d) the local social services department shall conform with all State and Federal requirements for employment benefits and taxes and shall follow appropriate procedures for payment for this service under this Title. Appropriate insurance coverage shall be provided to cover both personal injury and property damage liability; and

(e) State approval shall be limited to a period or periods not in excess of one year, but may be renewed.

(3) The provider agency or the local department of social services shall assign a person to provide the required services according to the authorization. In the event that this person is unable to meet the client's needs or is unacceptable to the client, the local department of social services shall request assignment of another person. Attention should be given in the selection of a person to provide services to assure that the person can communicate with a patient or on behalf of the patient.

(4) The minimum criteria for the selection of all persons providing personal care services shall include, but are not limited to, the following:

(i) maturity, emotional and mental stability, and experience in personal care or homemaking;

(ii) ability to read and write, understand and carry out directions and instructions, record messages, and keep simple records;

(iii) sympathetic attitude toward providing services for patients at home who have medical problems;

(iv) good physical health, as indicated by the documentation in the personnel file of all persons providing personal care services. This documentation must include the same assurances and proof of good physical health that the Department of Health requires for employees of certified home health agencies pursuant to 10 NYCRR 763.4;

(v) a criminal history record check to the extent required by 10 NYCRR Part 402; and

(vi) compliance with Part 403 of Title 10 NYCRR, as required in that Part.

(e) Required training. (1) Each person performing personal care services other than household functions only shall be required as condition of initial or a continued participation in the provision of personal care services under this Part to participate successfully in a training program approved by the Department.

(2) An approved training program shall include basic training, periodic and continuing in-service training, and on-the-job instruction and supervision.

(i) Basic training shall meet the following minimum requirements:

(a) Include content related to:

(1) orientation to the agency, community and services;

(2) the family and family relationships;

(3) the child in the family;

(4) working with the elderly;

(5) mental illness and mental health;

(6) body mechanics;

(7) personal care skills;

(8) care of the home and personal belongings;

(9) safety and accident prevention;

(10) family spending and budgeting; and

(11) food, nutrition and meal preparation.

(b) Total 40 hours in length.

(c) Be directed by a registered professional nurse, or a social worker, or home economist who has, at a minimum, a bachelor's degree in an area related to the delivery of human services or education.

(d) Involve appropriate staff and community resources, such as public health nurses, home economics, physical therapists and social workers. Skills training in personal care techniques shall be taught by a registered nurse.

(e) Include, as an integral part, evaluation of each person's competency in the required content. Criteria and methods for determining each person's successful completion of basic training shall be established. Criteria shall include attendance at all classes or equivalent instruction. Additional criteria shall be established to determine whether each person can competently perform required tasks and establish good working relationships with others. Methods of evaluating competency may include written, performance and oral testing; instructor observations of overall performance, attitudes and work habits; preparation of assignments/home study materials or any combination of these and other methods. Attendance records, and evaluation materials for determining each person's successful completion of basic training shall be maintained.

(ii) In-service training shall be provided, at a minimum, for three hours semiannually for each person providing personal care services to develop specialized skills or knowledge not included in basic training or to review or expand skills or knowledge included in basic training.

(iii) On-the-job training shall be provided, as needed, to instruct the person providing personal care services in a specific skill or technique, or to assist the person in resolving problems in individual case situations. Criteria and methodology for evaluating the overall job performance of each person providing personal care services shall be established. The supervising professional registered nurse shall be responsible for evaluating each person's ability to function competently and safely and for providing or arranging for necessary on-the-job training.

(3) Prior to performing any service, each person providing personal care services, other than household functions only, shall successfully complete the prescribed part of the basic training program. The prescribed part of basic training shall include the following content areas:

(i) orientation to the agency, community and the service;

(ii) working with the elderly;

(iii) body mechanics;

(iv) personal care skills;

(v) safety and accident prevention; and

(vi) food, nutrition and meal preparation.

The entire basic training program shall be completed by each person providing personal care services within three months after the date he is so hired.

(4) The requirement for completion of a basic training program may be waived by the department if the person performing personal care services can demonstrate competency in the required areas of content included in the basic training as specified in clause (2)(i)(a) of this subdivision. Methods of evaluating competency shall be approved by the Department and shall meet the following minimum requirements:

(i) Be designed for persons having:

(a) documented training through related training programs such as nurse's aide and home health aide training programs; or

(b) documented related experience in an institutional or home setting which involves the performance of skills included in required basic training.

(ii) Include procedures and instruments for evaluating each person's competency. Content of evaluation instruments shall be compatible with required basic training program content, and shall assess appropriate skills and understandings of persons providing personal care services.

(iii) Identify the standard(s) of competency which shall be achieved through application of the procedures and instruments included.

(iv) Include a plan for remedial basic training of persons who fail to meet the standard(s) of competency established. Remedial basic training shall be provided which includes the prescribed part of basic training set forth in paragraph (3) of this subdivision.

(v) Include a mechanism for documenting successful demonstration of competency. Certificates awarded on the basis of successful demonstration of competency shall be designed to reflect issuance on this basis.

(5) Persons performing household tasks only shall be oriented to their responsibilities at the time of assignment by the supervising registered professional nurse.

(6) Each local social services department shall require that agencies with whom they contract for services submit to them a training program for providers of personal care services. This training program shall be submitted by the local social services department to the Department for approval. The Department shall notify the local social services department of its decision within 45 days of the plan's receipt by the department.

(7) The successful participation of each person providing personal care services in approved basic training, competency testing and continuing in-service training programs shall be documented in that person's personnel records. Documentation shall include the following items:

(i) a completed employment application or other satisfactory proof of the date on which the person was hired; and

(ii)(a) for persons who completed a training program before September 25, 2009, a dated certificate, letter or other satisfactory proof of the person's successful completion of a basic training program approved by the department; or

(b) for persons who completed a training program on or after September 25, 2009, that information required by Part 403 of Title 10 NYCRR.

(iii) dated certificates, written references, letters or other satisfactory proof that the person:

(a) meets the qualifications specified in clause (4)(i)(a) or (b) of this subdivision; and

(b) has successfully completed competency testing and any remedial basic training necessary as a result of such testing. The dated and scored competency testing instruments and record of any remedial training provided shall be maintained;

(iv) an in-service card, log or other satisfactory proof of the employee's participation in three hours of in-service training semiannually.

(8) The local social services district shall develop a plan for monitoring the assignments of individuals providing personal care services to assure that individuals are in compliance with the training requirements. This plan shall be submitted by the local social services district to the Department for approval and shall include, as a minimum, specific methods for monitoring each individual's compliance with the basic training, competency testing, and in-service requirements specified in this subdivision. Methods of compliance with the basic training, monitoring may include: onsite reviews of employee personnel records; establishment of a formal reporting system on training activities; establishment of requirements for submittal of certificates or other documentation prior to each individual's assignment to a personal care service case; or any combination of these or other methods. The monitoring plan must include provision for assuring that training programs have complied with the requirement Part 403 of Title 10 NYCRR related to the home care services worker registry.

(9) When a provider agency is not in compliance with department requirements for training, or when the agency's training efforts do not comply with the approved plan for that agency, or the agency has failed to comply with the requirements of Part 403 of Title 10 NYCRR, the Department shall withdraw the approval of that agency's training plan. No reimbursement shall be available to local social services districts, and no payments shall be made to provider agencies for services provided by individuals who are not trained in accordance with department requirements and the agency's approved training plan.

(f) Administrative and nursing supervision. (1) All persons providing personal care services are subject to administrative and nursing supervision.

(2) Administrative supervision must assure that personal care services are provided according to the authorization of the agency responsible for case management(the case management agency) for the level, amount, frequency and duration of personal care services to be provided and the social services district's contract or other written agreement with the agency providing such services.

(i) The agency providing personal care services is responsible for administrative supervision.

(ii) Administrative supervision includes the following activities:

(a) receiving initial referrals from the case management agency, including its authorization for the level, amount, frequency and duration of personal care services to be provided;

(b) notifying the case management agency when the agency providing services accepts or rejects a patient; and

(1) when accepted, the arrangements made for providing personal care service; or

(2) when rejected, the reason for such rejection;

(c) initially assigning a person to provide personal care services to a patient according to the case management agency's authorization for the level, amount, frequency and duration of personal care services to be provided. In making assignments, the agency providing services must consider the following:

(1) the patient's cultural background, primary language, personal characteristics and geographic location;

(2) the experience and training required of the person providing personal care services; and

(3) the ability of the person providing personal care services to communicate with the patient or on the patient's behalf.

(d) assigning another person to provide personal care services to a patient when the person the agency providing services initially assigned is:

(1) unable to work effectively with the patient and any informal caregivers involved in the patient's care; or

(2) providing personal care services inappropriately or unsafely; or

(3) unavailable to provide personal care services due to unexpected illness or other reasons;

(e) promptly notifying the case management agency when the agency providing services cannot assign another person to provide personal care services to the patient;

(f) verifying that the patient is receiving personal care services according to the case management agency's authorization;

(g) notifying the case management agency, or cooperating with the nurse supervisor to notify such agency, when the agency providing services has questions regarding the adequacy of the case management agency's authorization for personal care services;

(h) promptly notifying the case management agency when the agency providing services is unable to maintain case coverage, including cases requiring services at night, on weekends or on holidays;

(i) participating in, or arranging for, the orientation of persons providing personal care services to the employment policies and procedures of the agency providing services;

(j) evaluating the overall job performances of persons providing personal care services, or assisting the nurse supervisor or other personnel of the agency providing nursing supervision, with such evaluations;

(k) giving support to persons providing personal care services;

(l) checking time cards of persons providing personal care services for required documentation;

(m) maintaining scheduling records and any other records necessary to implement required administrative activities; and

(n) complying with the requirements for advance directives that are set forth in 10 NYCRR 700.5 or any successor regulation. The agency providing personal care services, as well as any individual provider of personal care services who provides services pursuant to his or her contract with the social services district, may contract with another entity, including but not limited to a case management agency, to perform such agency's or individual provider's advance directive responsibilities.

(3) Nursing supervision must assure that the patient's needs are appropriately met by the case management agency's authorization for the level, amount, frequency and duration of personal care services and that the person providing such services is competently and safely performing the functions and tasks specified in the patient's plan of care.

(i) Nursing supervision must be provided by a registered professional nurse employed by a voluntary, proprietary, or public agency with which the social services district has a contract or other written agreement or by the social services district. When an individual provider of personal care services is used, nursing supervision must be provided in accordance with the requirements specified in subdivision (d) of this section.

(ii) The agency providing nursing supervision must employ nurses meeting the qualifications in subparagraph (iii) of this paragraph in sufficient numbers to perform the activities in subparagraph (iv) of this paragraph.

(iii) Nursing supervision must be provided by a registered professional nurse who:

(a) is licensed and currently certified to practice as a registered professional nurse in New York State;

(b) meets the health requirements specified in subdivision (d)(4)(iv) of this section; and

(c) meets either of the following qualifications:

(1) has at least two years satisfactory recent home health care experience; or

(2) has a combination of education and experience equivalent to the requirement described in subclause (1) of this clause, with at least one year of home health care experience; or

(d) acts under the direction of a registered professional nurse who meets the qualifications listed in clauses (a) and (b) of this subparagraph and either of the qualifications listed in subclause (1) or (2) of clause (c) of this subparagraph.

(iv) Nursing supervision includes the following activities:

(a) orienting the person providing personal care services to his or her responsibilities.

(1) Except as otherwise provided in subclause (3) of this clause, the nurse supervisor must conduct an orientation visit in the patient's home when the person providing personal care services is also present.

(i) For all initial authorizations of personal care services, the nurse supervisor must conduct an orientation visit within seven calendar days after the person providing personal care services is assigned to the patient.

(ii) Scheduling of orientation visits for all initial authorizations of personal care services, should be based on the following four criteria:

(A) the patient's ability to be self-directing, as defined in subparagraph (a)(3)(ii) of this section;

(B) the availability of any informal caregivers who will be involved in the patient's plan of care;

(C) the scope and complexity of the functions and tasks identified in the patient's plan of care; and

(D) the training and experience the person providing personal care services has in performing the functions and tasks identified in the patient's plan of care.

(2) The nurse supervisor must perform the following functions during the orientation visit and document his or her performance of these functions in the report he or she prepares pursuant to subparagraph (vii) of this paragraph:

(i) review, with the person providing personal care services, the patient, and the patient's family, the plan of care received from the case management agency to assure that all parties understand the functions and tasks that the person providing services must perform and the frequency at which the person must perform these functions and tasks;

(ii) instruct the person providing personal care services in the observations the person must make and the oral and written reports and records the person must submit and maintain; and

(iii) demonstrate, when indicated, any procedures that the person providing personal care services is to perform with or for the patient.

(3) The nurse supervisor is not required to conduct an orientation visit when:

(i) personal care services are reauthorized, the patient requires a continuation or resumption of services initially authorized and the patient’s mental status, social circumstances and medical condition have not changed; or

(ii) the person providing personal care services is temporarily substituting for or replacing the person assigned to provide services; the patient’s plan of care is current and available to the person providing personal care services; the patient is self directing, as defined in subparagraph (a)(3)(ii) of this section or, if non-self directing, has a self-directing individual or other agency willing to assume responsibility for making choices about the patient’s activities of daily living, as provided in such subdivision; and the person providing personal care services has the documented training or experience to appropriately and safely perform the functions and tasks identified in the patient’s plan of care.

(4) The nurse supervisor must continue to perform the functions specified in items (iv)(a)(2)(i) and (ii) of this paragraph when an exception is made to the requirement for a home orientation visit.

(b) making nursing supervisory visits at the frequency established pursuant to subparagraph (vi) of this paragraph.

(1) The supervisory visit must be made to the patient's home when the person providing personal care services is present, except when a supervisory visit is made solely to obtain the patient's evaluation of the person's job performance.

(2) The nurse supervisor must perform the following functions during the supervisory visit and document his or her performance of these functions in the report he or she prepares pursuant to subparagraph (vii) of this paragraph:

(i) evaluate the patient's needs to determine if the level, amount, frequency and duration of personal care services authorized continue to be appropriate;

(ii) evaluate the skills and performance of the person providing personal care services, including the person's ability to work effectively with the patient and the patient's family;

(iii) arrange for or provide on-the-job training according to subparagraph (e)(2)(iii) of this section;

(c) immediately notifying the case management agency when either of the following occurs:

(1) there is a change in the patient's social circumstances, mental status or medical condition that would affect the level, amount, frequency or duration of personal care services authorized or indicate the patient needs a different type of service; or

(2) the actions taken by persons involved in the patient's care are inappropriate or jeopardize the patient's health and safety;

(d) participating in case conferences to discuss individual patient cases;

(e) assisting in complaint investigations according to the policies and procedures of the agency that employs the nurse supervisor;

(f) participating, if requested, in basic, supplementary and in-service training, as defined in subdivisions (a) and (e) of this section, of persons providing personal care services;

(g) being available to the person providing personal care services for nursing consultation while such person is in the patient's home;

(h) evaluating the overall job performance of persons providing personal care services, or assist the administrative supervisor or other personnel with such evaluations;

(i) reviewing reports prepared by persons providing personal care services;

(j) preparing, maintaining or forwarding written reports of orientation visits and nursing supervisory visits, according to subparagraph (vii) of this paragraph; and

(k) reporting to the registered professional nurse responsible for directing a nurse supervisor lacking home health care experience, when applicable, and in accordance with policies and procedures of the agency that employs the nurse supervisor.

(v) The registered professional nurse who provides direction to nurse supervisors without the home health care experience specified in clause (3)(iii)(c) of this subdivision is responsible for the following activities:

(a) training and orienting the nurse supervisor to his or her supervisory responsibilities;

(b) consulting with the nurse supervisor regarding patients or persons providing personal care services;

(c) monitoring orientation visits and nursing supervisory visits to assure that such visits are performed at the required frequencies;

(d) assuring availability of nursing consultation to the person providing personal care services when such person is in the patient's home;

(e) reviewing the orientation visit reports and nursing supervisory reports and assuring that copies are maintained or forwarded according to subparagraph (vii) of this paragraph; and

(f) evaluating each nurse supervisor's overall job performance or assisting with such evaluations.

(vi) The nurse who completes the nursing assessment, as specified in subparagraph (b)(3)(iii) of this section, must recommend the frequency of nursing supervisory visits for a personal care services patient and must specify the recommended frequency in the patient's plan of care.

(a) Frequency of nursing supervisory visits must be recommended on an individual patient basis. The following factors must be considered:

(1) the patient's ability to be self-directing, as defined in subparagraph (a)(3)(ii) of this section;

(2) the patient's need for assistance in carrying out specific functions and tasks in the plan of care; and

(3) the skills needed by the person who will be providing personal care services.

(b) The nursing supervisor must make nursing supervisory visits at least every 90 days for a personal care services patient except that:

(1) nursing supervisory visits must be made more frequently than every 90 days when:

(i) the patient's medical condition requires more frequent visits; or

(ii) the person providing personal care services needs additional or more frequent on-the-job training to perform assigned functions and tasks competently and safely; and

(2) supervisory and nursing assessment visits may be combined and conducted every six months when:

(i) the patient is self-directing, as defined in subparagraph (a)(3)(ii) of this section; and

(ii) the patient's medical condition is not expected to require any change in the level, amount or frequency of personal care services authorized during this time period.

(vii) The nurse supervisor must prepare a written report of each orientation visit and each nursing supervisory visit. These reports must be prepared on a form prescribed by the department.

(a) The nurse supervisor must maintain a copy of each report in the patient's record.

(b) The nurse supervisor must maintain a copy of each report in the personnel record of the person providing personal care services or forward a copy, within 14 calendar days of the orientation visit or nursing supervisory visit, to the provider agency for inclusion in such person's personnel record.

(c) The nurse supervisor must forward a copy of each report to the case management agency, if different from the agency providing nursing supervision, within 14 calendar days of each orientation visit or nursing supervisory visit.

(viii) Arrangements for nursing supervision must be reflected in the social services district's annual plan for the delivery of personal care services.

(ix) Arrangements for nursing supervision provided by a voluntary, proprietary or public agency must be specified in the contract or other written agreement between the social services district and the agency providing nursing supervision.

(g) Case management. (1) All patients receiving personal care services must be provided with case management services according to this subdivision.

(2) Case management may be provided either by social services district professional staff who meet the department's minimum qualifications for caseworker, professional staff of one or more agencies to which the district has delegated case management responsibility and that meet standards established by the department, or both.

(i) The social services district may delegate, pursuant to standards established by the department, responsibility for performance of either or both of the following:

(a) one or more of the case management activities listed in paragraph (3) of this subdivision;

(b) one or more such case management activities at specific times, such as during weekends or at night.

(ii) A social services district may delegate responsibility for case management activities only when:

(a) the department has approved the delegation of case management responsibilities;

(b) the social services district and each agency that is to perform case management activities have a contract or other written agreement pursuant to subdivision (c) of this section; and

(c) the social services district monitors the case management activities provided under the contract or other written agreement to ensure that such activities comply with the requirements of this subdivision.

(3) Case management includes the following activities:

(i) receiving referrals for personal care services, providing information about such services and determining, when appropriate, that the patient is financially eligible for Medical Assistance;

(ii) informing the patient or the patient's representative that a physician's order is needed, making copies of the physician's order form available to hospital discharge planners, physicians, and other appropriate persons or entities, and assisting the patient to obtain a physician's order when the patient or the patient's representative is unable to obtain the order.

(iii) completing the social assessment according to subdivision (b) of this section, including an evaluation of:

(a) the potential contribution of informal caregivers to the patient's plan of care, as specified in subparagraph (b)(3)(ii) of this section;

(b) the patient's physical environment, as determined by a visit to the patient's home; and

(c) the patient's mental status;

(iv) obtaining or completing the nursing assessment according to subparagraph (b)(3)(iii) of this section;

(v) assessing the patient's eligibility for hospice services and assessing the appropriateness and cost-effectiveness of the services specified in subparagraph (b)(3)(iv) of this section;

(vi) forwarding the physician's order; the social and nursing assessments; the assessments required by subparagraph (b)(3)(iv) of this section for an independent medical review according to subparagraph (b)(4)(i) of this section;

(vii) negotiating with informal caregivers to encourage or maintain their involvement in the patient's care;

(viii) determining the level, amount, frequency and duration of personal care services to be authorized or reauthorized according to subdivisions (a) and (b) of this section, or, if the case involves an independent medical review, obtaining the review determination;

(ix) obtaining or completing the authorization for personal care services, according to subdivision (b) of this section;

(x) assuring that the patient is provided written notification of personal care services initially authorized, reauthorized, denied, increased, reduced, discontinued, or suspended and his or her right to a fair hearing, as specified in Part 358 of this Title and subparagraph (b)(5)(iv) of this section;

(xi) arranging for the delivery of personal care services according to subdivision (c) of this section;

(xii) forwarding, prior to the initiation of personal care services, a copy of the patient's plan of care developed by the nurse responsible for completion of the nursing assessment, as specified in subdivision (a) of this section, to the following persons or agencies:

(a) the patient or the patient's representative;

(b) the agency providing personal care services under a contract or other written agreement with the social services district; and

(c) the agency providing nursing supervision under a contract or other written agreement with the social services district;

(xiii) monitoring personal care services to ensure that such services are provided according to the authorization and that the patient's needs are appropriately met;

(xiv) obtaining or completing a copy of the orientation visit report and the nursing supervisory visit report and forwarding a copy of these reports in accordance with subparagraphs (f)(3)(vi) of this section;

(xv) allowing access by the patient to his or her written records, including physicians' orders and nursing assessments and, pursuant to 10 NYCRR 766.2(e), by the State Department of Health and licensed provider agencies;

(xvi) receiving and promptly reviewing recommendations from the agency providing nursing supervision for changes in the level, amount, frequency or duration of personal care services being provided;

(xvii) promptly initiating and complying with the procedures specified in subparagraph (b)(5)(ix) of this section when the patient's social circumstances, mental status or medical condition unexpectedly change during the authorization period;

(xviii) assuring that capability exists 24 hours per day, seven days per week for the following activities:

(a) arranging for continued delivery of personal care services to the patient when the agency providing such services is unable to maintain case coverage; and

(b) making temporary changes in the level, amount or frequency of personal care services provided or arranging for another type of service when there is an unexpected change in the patient's social circumstances, mental status or medical condition;

(xix) informing the patient or the patient's representative of the procedure for addressing the situations specified in subparagraph (xv) of this paragraph;

(xx) establishing linkages to services provided by other community agencies including:

(a) providing information about these services to the patient and the patient's family; and

(b) identifying the criteria by which patients are referred to these services;

(xxi) establishing linkages to other services provided by the social services district including, but not limited to, adult protective services as specified in paragraph (5) of this subdivision;

(xxii) arranging for the termination of personal care services when indicated and, when necessary, making referrals to other types of services or levels of care that the patient may require; and

(xxiii) complying with the requirements for advance directives that are set forth in the regulations at 10 NYCRR 700.5 or any successor regulation when personal care services are provided by social services district employees. For purposes of this subparagraph, the term facility/agency as used in such regulations is deemed to mean the case management agency.

(4) The case management agency must maintain current case records on each patient receiving personal care services. Such records must include, at a minimum, a copy of the following documents:

(i) the physician's orders;

(ii) the nursing and social assessments;

(iii) the assessment of the patient's eligibility for hospice services and the assessments of the appropriateness and cost-effectiveness of the services specified in subparagraph (b)(3)(iv) of this section;

(iv) for a patient whose case must be referred to the local professional director or designee in accordance with subparagraph (b)(4)(i) of this section, a record that the physician's order, the social and nursing assessments and the assessments required by subparagraph (b)(3)(iv) of this section were forwarded to the local professional director or designee;

(v) for a patient whose case must be referred to the local professional director or designee in accordance with subparagraph (b)(4)(i) of this section, a copy of the local professional director's or designee's determination;

(vi) the patient's plan of care;

(vii) any consent form signed by the patient authorizing release of confidential information;

(viii) the authorization for personal care services;

(ix) the written notification of personal care services initially authorized, reauthorized, denied, increased, reduced, discontinued, or suspended and the patient's right to a fair hearing;

(x) notifications of acceptance, rejection or discontinuance of the case by the agency providing personal care services;

(xi) the orientation visit and nursing supervisory reports;

(xii) the case narrative notes; and

(xiii) any criminal investigation or incident reports involving the patient or any person providing personal care services to the patient.

(5)(i) Social services district professional staff responsible for personal care services and staff responsible for adult protective services, as specified in Part 457 of this Title, must coordinate their activities to assure that:

(a) they identify and understand the criteria for referring personal care services patients to adult protective services and for referring adult protective services clients to the personal care services program;

(b) mechanisms exist to discuss individual patients;

(c) personal care services as part of an adult protective services plan are provided according to existing requirements; and

(d) staff understand their respective responsibilities in cases involving the provision of personal care services as part of adult protective services plans.

(ii) Professional staff responsible for adult protective services have primary responsibility for case management for a patient who:

(a) is eligible for protective services for adults, as defined in section 457.1(b) of this Title;

(b) receives or requires personal care services as part of an adult protective services plan; and

(1) is non self-directing and has no self-directing individual or agency to assume responsibility for his or her direction, as specified in subparagraph (a)(3)(ii) of this section; or

(2) is self-directing, as defined in subparagraph (a)(3)(ii) of this section, but refuses to accept personal care services in accordance with the plan of care developed by the nurse who completed the nursing assessment.

(iii) Professional staff responsible for personal care services must assist adult protective services staff with arrangements for provision of personal care services.

(6) Arrangements for case management, including arrangements for delegation of case management activities, must be reflected in the social services district's annual plan for the delivery of personal care services.

(h) Payment. (1) No payment to the provider shall be made for authorized service unless such claim is supported by the documentation of the time spent in provision of service for each individual patient. Such documentation must be maintained by the provider pursuant to section 540.7(a)(8) of this Title.

(2) Payment for personal care services shall not be made to a patient's spouse, parent, son, son-in-law, daughter or daughter-in-law, but may be made to another relative if that other relative:

(i) is not residing in the patient's home; or

(ii) is residing in the patient's home because the amount of care required by the patient makes his presence necessary.

(3) For personal care services, payment shall be made as follows:

(i) If services are provided directly by the staff of the local department of social services, payment shall be based upon the local department's salary schedule. The local department is responsible for withholding all applicable income taxes and payment of the employer's share of FICA, Workers' Compensation, Unemployment Insurance and all other benefits covered under labor management contracts.

(ii)(a) When personal care services are provided by a voluntary, proprietary or public personal care services provider, payment is based upon the following:

(1) For providers having contracts with social services districts for the provision of personal care services during a rate year or years beginning prior to January 1, 1994, payment is made at the lower of the local prevailing rate or a rate that is negotiated between the district and the provider, unless a different rate has been ordered by a court for any such rate year or years. The social services district must submit the rates to the department on forms the department requires to be used and must not implement the rates until the Department and the Director of the Budget approve them. Such rates are also subject to the provisions of paragraph (5) or (6), as applicable, of this subdivision.

(2) For providers having contracts with social services districts for the provision of personal care services during a rate year or years beginning on or after January 1, 1994, payment will be made in accordance with paragraph (7) of this subdivision.

(b) Providers must pay salaries to the personal care workers they employ; comply with all required State, federal or local income tax or other payroll withholding requirements; and pay FICA, Workers' Compensation, Unemployment Insurance, and other employee benefits as required by the providers' labor contracts.

(iii) If the services are provided by or under arrangements with an individual provider of personal care services, or an individual nurse under contract with the social services district for the performance of nursing assessments, payment is made directly to the individual provider of service or such nurse at a rate approved by the department and the Director of the Budget. The social services district is responsible for establishing policies for the withholding of all applicable income taxes and payment of the employer's share of FICA, Workers' Compensation, Unemployment Insurance and any other benefits included in the contract with the provider.

(4) Payment for assessment and supervisory services provided by a certified home health agency as part of a local social services department's plan for delivery of personal care services shall be at rates established by the State Commissioner of Health and approved by the State Director of the Budget.

(5)(i) This paragraph applies to Medical Assistance (MA) payments to personal care services providers that had personal care services payment rates in effect for the rate or contract year beginning prior to July 1, 1990, and seek approval of personal care services payment rates for the rate or contract year beginning on or after July 1, 1990.

(ii) For the rate or contract year beginning on or after July 1, 1990, MA payments to a provider of personal care services must be based on and, except as provided in subparagraph (iv) of this paragraph, be at or below the provider's personal care services payment rate in effect for the rate or contract year beginning prior to July 1, 1990, as adjusted by a personal care services trend factor that the department establishes with the approval of the Director of the Budget.

(iii) The department will establish the personal care services trend factor by designating an external price indicator for each of the three components that comprise the total costs of personal care services, determining the average percentage of total personal care services costs that each component represents, and weighing each component's average percentage of total personal care services costs by the external price indicator for that component. The three components of the costs of personal care services are listed below:

(a) an aide wage and benefit component;

(b) an administrative and operating component; and

(c) a clinical component.

(iv) At the written request of a social services district and with the approval of the Director of the Budget, the department may grant an exception to the requirement that a personal care services provider's payment rate must be based on, and be at or below, the provider's personal care services payment rate in effect for the rate or contract year beginning prior to July 1, 1990, as adjusted by the personal care services trend factor. The personal care services provider must cooperate with the social services district's exception request by providing such reports or other information that may be necessary to justify the exception request. The department will grant a social services district's exception request only when the social services district demonstrates to the department's and the Director of the Budget's satisfaction that:

(a) the social services district will otherwise be unable to ensure that personal care services recipients will receive the personal care services for which they are authorized;

(b) additional payment for personal care services is necessary to maintain the quality of services provided; or

(c) additional payment for personal care services is necessary due to extraordinary or other circumstances, as specified in department guidelines.

(v) A social services district must submit each proposed personal care services payment rate to the department in a format that the department requires. The district must not implement any proposed personal care services payment rate until the department and the Director of the Budget approve the rate.

(vi) Within two months after the day on which the department and the Director of the Budget receive a proposed personal care services payment rate that is equal to or less than the provider's personal care services payment rate for the rate or contract year beginning prior to July 1, 1990, as adjusted by the personal care services trend factor, the department and the Director of the Budget will approve the rate. The department will send the social services district written notice of the approval of the rate.

(vii) Within four months after the day on which the department and the Director of the Budget receive a proposed personal care services payment rate that exceeds the provider's personal care services payment rate for the rate or contract year beginning prior to July 1, 1990, as adjusted by the personal care services trend factor, and for which the social services district has requested an exception to the trend factor requirement, the department and the Director of the Budget will approve, disapprove, or otherwise act upon the rate. The department will send the social services district written notice of the approval or disapproval of the proposed personal care services rate or the results of the department's and the Director of the Budget's other action regarding the proposed rate. If the department and the Director of the Budget disapprove a proposed personal care services payment rate, the social services district may submit a revised rate for the Department's and the Director of the Budget's approval, disapproval, or other action.

(viii) The department and the Director of the Budget, when determining whether to approve a proposed personal care services payment rate, may consider various factors including, but not limited to, the following:

(a) whether the proposed personal care services payment rate exceeds the provider's personal care services payment rate for the rate or contract year beginning prior to July 1, 1990, as adjusted by the personal care services trend factor; and

(b) if the proposed personal care services payment rate exceeds the provider's personal care services payment rate for such rate or contract year, as adjusted by the personal care services trend factor, whether the social services district has requested an exception to the trend factor requirement and demonstrated to the department's and the Director of the Budget's satisfaction that an exception should be granted.

(6)(i) This paragraph applies to MA payments to the following personal care services providers:

(a) a provider that did not have a personal care services payment rate in effect for a rate or contract year beginning prior to July 1, 1990; and

(b) a provider that had a personal care services payment rate in effect for a rate or contract year beginning prior to July 1, 1990, and seeks approval of a personal care services payment rate for a rate or contract year beginning prior to July 1, 1990.

(ii) The department and the Director of the Budget, when determining whether to approve a proposed personal care services payment rate under this paragraph, may consider various factors including, but not limited to, the following:

(a) the justification the social services district provides, in a format the department requires, for the proposed rate;

(b) any changes in the appropriate consumer price index for urban or rural consumers;

(c) any changes in federal or State mandated standard payroll deductions;

(d) the applicable minimum wage laws;

(e) a comparison of the proposed personal care services payment rate to other personal care services providers' payment rates in the social services district and to personal care services providers' payment rates in social services districts of similar size, geography and demographics; and

(f) a comparison of the proposed personal care services payment rate for the provider to the provider's personal care services payment rate, if any, for the previous rate or contract year.

(iii) A social services district must submit each proposed personal care services payment rate to the department in a format that the department requires. The district must not implement any proposed personal care services payment rate until the department and the Director of the Budget approve the rate. The department will send the social services district written notice of the approval or disapproval of the proposed rate.

(7) This paragraph sets forth the methodology by which the department will determine MA payment rates for personal care services providers that have contracts with social services districts for any rate year that begins on or after January l, 1994.

(i) Providers' submission of required cost reports.

(a) Providers with cost experience.

(l) This clause applies to providers with cost experience. A provider with cost experience is defined as any provider of personal care services that can report its actual operating costs for the full rate year specified in the required cost report.

(2) Each provider must complete and submit to the department such cost report as the department may require. Each provider must complete the cost report by reporting such of the provider's actual operating costs of providing personal care services as the cost report may require for the full rate year specified in the cost report.

(3) The department will furnish each provider with the cost report form. The cost report form will specify the date by which the provider must submit the completed report to the department; however, no provider will have fewer than 90 calendar days to submit the report after its receipt. The department may grant a provider an additional 30 calendar days to submit the cost report when the provider, prior to the date the report is due, submits a written request to the department for an extension and establishes to the department's satisfaction that the provider cannot submit the report by the date the report is due for reasons beyond the provider's control.

(4)(i) If the department determines that the cost report submitted by a provider is inaccurate or incomplete, the department will notify the provider in writing. The notice will advise the provider of the corrected or additional information that the provider must submit.

(ii) The provider must submit the corrected or additional information within 30 calendar days from the date the provider receives the department's notice. The department may grant the provider an additional 30 calendar days to submit the corrected or additional information when the provider, prior to the date that the corrected or additional information is due, submits a written request to the department for an extension and establishes to the department's satisfaction that the provider cannot submit the corrected or additional information by the date the information is due for reasons beyond the provider's control.

(5) If the provider determines that the cost report that it has submitted to the department is inaccurate or incomplete, the provider must submit corrected or additional information. The provider must submit such corrected or additional information to the department within 45 calendar days from the date the provider submitted the original cost report to the department.

(6)(i) In the event a provider fails to file the required cost report on or before the due date, or as the same may be extended pursuant to subclause (3) of this clause, the State Commissioner of Health shall reduce the current rate paid by state governmental agencies by two percent for a period beginning on the first day of the calendar month following the original due date of the required report and continuing until the last day of the calendar month in which the required report is filed.

(ii) Failure to timely file the corrected or additional data as required pursuant to subclause (4) of this clause will result in application of item (i) of this subclause. Lack of certification by the operator or by the accountant, as required pursuant to subclauses (8) and (9) of this clause, shall render a cost report incomplete.

(7) The provider must complete the cost report in accordance with generally accepted accounting principles as applied to the provider, unless the department specifies otherwise on the cost report form.

(8) The cost report must be certified by the owner or administrator of a proprietary personal care services provider, the chief executive officer or administrator of a voluntary personal care services provider, or the public official responsible for the operation of a publicly operated personal care services provider. The cost report form will include a certification form, which will specify who must certify the report.

(9) The provider must submit an opinion of an independent certified public accountant that the provider's cost report, or such portions of the cost report as the department may specify, has been examined and determined to comply with generally accepted accounting principles and with the allowable costs and recoveries of expenses requirements specified in subclauses (ii)(a)(3) and (4), respectively, of this paragraph. The provider must submit such independent certified public accountant's opinion on a form as the department may require.

(b) New providers.

(1) This clause applies to new providers of personal care services. A new provider of personal care services is defined as any provider of personal care services that cannot report its actual operating costs for the full rate year specified in the required cost report.

(2) Each new provider must complete and submit to the department such cost report as the department may require. Each new provider must complete the cost report by reporting such of the provider's estimated operating costs of providing personal care services as the cost report may require for the full rate year specified in the cost report.

(3) The department will furnish each new provider with the cost report form. The cost report form will specify the date by which the provider must submit the completed report to the department; however, no provider will have fewer than 90 calendar days to submit the report after its receipt. The department may grant a provider an additional 30 calendar days to submit the cost report when the provider, prior to the date the report is due, submits a written request to the department for an extension and establishes to the department's satisfaction that the provider cannot submit the report by the date the report is due for reasons beyond the provider's control.

(4)(i) If the department determines that the cost report that a new provider has submitted is inaccurate or incomplete, the department will notify the provider in writing. The notice will advise the provider of the corrected or additional information that the provider must submit.

(ii) The new provider must submit the corrected or additional information within 30 calendar days from the date the provider receives the department's notice. The department may grant the provider an additional 30 calendar days to submit the corrected or additional information when the provider, prior to the date that the corrected or additional information is due, submits a written request to the department for an extension and establishes to the department's satisfaction that the provider cannot submit the corrected or additional information by the date the information is due for reasons beyond the provider's control.

(5) If the new provider determines that the cost report that it has submitted to the department is inaccurate or incomplete, the provider must submit corrected or additional information. The provider must submit such corrected or additional information to the department within 45 calendar days from the date the provider submitted the original cost report to the department.

(6) If a new provider fails to submit the cost report or any corrected or additional information regarding the cost report by the original or extended date on which such report or such corrected or additional information is due, the provider's existing approved payment rate, if any, will remain in effect until such time as the provider submits such cost report or such corrected or additional information and otherwise complies with the requirements of this clause, and the department is able to determine a rate for the provider. The rate will be effective for the full rate year regardless of the date on which the provider submitted such cost report or such corrected or additional information and otherwise complied with the requirements of this clause.

(7) The new provider must complete the cost report in accordance with generally accepted accounting principles as applied to the provider, unless the department specifies otherwise on the cost report form.

(8) The cost report must be certified by the owner or administrator of a proprietary personal care services provider, the chief executive officer or administrator of a voluntary personal care services provider, or the public official responsible for the operation of a publicly operated personal care services provider. The cost report form will include a certification form, which will specify who must certify the report.

(9) When a new provider has contracted with a social services district for the provision of personal care services for one year and can report its actual operating costs for such year, the provider must report its actual operating costs for such year to the department by completing a new cost report and submitting such report to the department in accordance with the requirements for providers with cost experience as set forth in clause (a) of this subparagraph.

(ii) Determination of payment rate.

(a) Providers with cost experience.

(l) Medical assistance payments to personal care services providers for any rate year beginning on or after January l, 1994, are made at the lower of the following rates:

(i) the rate the provider charges the general public for personal care services; or

(ii) the rate determined by the department in accordance with subclauses (2) through (7) of this clause.

(2) The department will determine a provider's payment rate based on the cost report the provider submits. Each provider must report its personnel and non-personnel operating costs as specified in the cost report. The department will consider only the provider's operating costs that are allowable costs, as defined in subclause (3) of this clause and as adjusted by the provider in accordance with subclause (4) of this clause. The department will adjust the provider's allowable costs by trend factors, as determined in accordance with subclause (5) of this clause. The department will determine whether the provider's allowable costs exceed the ceilings that the department has established for such costs in accordance with subclause (6) of this clause and, if so, consider only such of the provider's allowable costs that do not exceed such ceilings. The department will calculate an amount for profit, for proprietary providers, or surplus, for voluntary providers, as determined in accordance with subclause (7) of this clause. The resulting rate will be payment-in-full for all personal care services provided to MA recipients during the applicable rate year, subject to any revisions the department may make in accordance with the rate revision or audit processes authorized by subparagraphs (iii) or (iv) of this paragraph.

(3) Allowable costs.

(i) Allowable costs are defined as a provider's documented costs that are necessary for the provider's operation, are directly or indirectly related to recipients' care, and are not expressly declared to be nonallowable by federal or State law or regulations.

(ii) Allowable costs will be determined in accordance with reimbursement principles developed for determining payments under title XVIII of the federal Social Security Act (Medicare). These reimbursement principles are set forth in the Medicare Provider Reimbursement Manual, Part l, entitled "HCFA Pub. 15-1 Thru T. 365," which is published by the Health Care Financing Administration of the United States Department of Health and Human Services. The department has incorporated by reference Chapters l - 14, 2l - 23 and 26 of such manual, as revised effective January l, 1992. A copy of such manual is available for public use and inspection at the Department of Social Services, 40 North Pearl St., Albany, NY 12243.

(iii) Allowable costs include the following:

(A) a monetary value assigned to services provided by religious orders and for services rendered by an owner or operator of a provider;

(B) only that portion of the dues the provider pays to any professional association that has been demonstrated, to the department's satisfaction, to be allocable to expenditures other than for public relations, advertising or political contributions;

(C) costs allocated to the provider from a related organization when the costs are reasonably related to the efficient provision of personal care services and the bases of allocation of such costs are consistent with regulations applicable to the cost reporting of the related organization. An organization is related to the provider when the provider, to a significant extent, is associated or affiliated with, or has control of, or is controlled by, the organization furnishing the services, facilities or supplies. To a significant extent means that:

(i) the provider or an officer, director or partner of such provider has an ownership interest, as defined in section 505.2(i) of this Part, in such organization equal to five percent or more; has an indirect ownership interest, as defined in section 505.2(g) of this Part, in such organization equal to five percent or more; has a combination of an ownership interest and an indirect ownership interest in such organization equal to five percent or more; has an interest of five percent or more in any mortgage, deed of trust, note or other obligation secured by such organization if that interest equals at least five percent of the value of the organization's property or assets; or is an officer, director or partner of such organization or otherwise has the power, directly or indirectly, significantly to influence or direct the actions or policies of such organization; or

(ii) the organization furnishing the services, facilities or supplies to the provider, or an officer, director or partner of such organization has an ownership interest, as defined in section 505.2(i) of this Part, in the provider equal to five percent or more; has an indirect ownership interest, as defined in section 505.2(g) of this Part, in the provider equal to five percent or more; has a combination of an ownership interest and an indirect ownership interest in the provider equal to five percent or more; has an interest of five percent or more in any mortgage, deed of trust, note or other obligation secured by the provider if that interest equals at least five percent of the value of the provider's property or assets; or is an officer, director or partner of the provider or otherwise has the power, directly or indirectly, significantly to influence or direct the actions or policies of the provider;

(D) reasonable compensation for owners or operators, their employees and their relatives for services actually performed and required to be performed. A relative is defined in accordance with Section 902.5 of the Medicare Provider Reimbursement Manual as follows: the spouse; natural parent, child and sibling; adopted child and adoptive parent; stepparent, stepchild, stepbrother, and stepsister; father-in-law, mother-inlaw, son-in-law, daughter-in-law, brother-in-law and sister-in-law; and grandparent and grandchild of an owner or operator. The amount of allowable costs for reasonable compensation is equal to the amount of compensation normally required to be paid for the same services provided by a nonrelated employee, as determined by the department. Allowable costs do not include compensation for any services which owners or operators and their employees and relatives are not authorized to perform under State law or regulation;

(E) costs of advertising, public relations or promotion when such costs are specifically related to the provision of personal care services and are not for the purpose of attracting patients; and

(F) such other costs as are determined to be allowable in accordance with reimbursement principles specified in the Medicare Provider Reimbursement Manual.

(iv) Allowable costs do not include the following:

(A) amounts in excess of reasonable or maximum costs authorized under title XVIII of the federal Social Security Act or in excess of customary charges to the general public. This provision does not apply to services furnished by public providers free of charge or at a nominal fee;

(B) expenses or portions of expenses reported by providers that the department determines are not reasonably related to the efficient provision of personal care services because of either the nature or the amount of the particular item;

(C) costs that are not properly related to patient care and that principally afford diversion, entertainment or amusement to owners, operators, their employees or relatives;

(D) any interest paid by the provider that is related to rate determinations or penalties imposed by governmental agencies or courts except tax penalties that are imposed through no fault of the provider and the costs of insurance policies that the provider obtains solely to insure against the imposition of such penalties;

(E) costs of contributions or other payments to political parties, political candidates or political organizations;

(F) any element of cost as determined by the department to have been created by the sale of a provider;

(G) the amount of the personal care services provider assessment required by section 367-i of the Social Services Law or section 36l4-b of the Public Health Law; or

(H) such other costs as are determined to be unallowable in accordance with reimbursement principles specified in the Medicare Provider Reimbursement Manual.

(4) Recoveries of expenses. The provider must reduce its reported operating costs by the costs of services or activities that are not properly chargeable to patient care. When the department determines that it is not practical to establish the costs of such services or activities, the provider will reduce its reported operating costs by the income that the provider receives from such services or activities. Examples of such income include, but are not limited to, the following:

(i) any amount the provider receives as a discount on purchases;

(ii) any amount the provider receives from tuition payments or from other payments made to the provider for educational services or other services not directly related to personal care services;

(iii) any amount the provider receives from a lease of office or other space to concessionaires that provide services not related to personal care services; and

(iv) any amount the provider charges for the use of telephone, telefax or telegraph services.

(5) Trend factors.

(i) The department will establish annual trend factors to be applied to providers' reported allowable costs for the provision of personal care services other than nursing supervision or nursing assessment. The department will also establish annual trend factors to be applied to providers' reported allowable costs for the provision of nursing supervision and nursing assessment when providers have contracts with social services districts for the provision of nursing supervision and nursing assessment.

(ii) The department has designated an external price indicator for the aide/nurse direct care component, the administrative component and the training component of the costs of personal care services and the costs of nursing supervision and nursing assessment.

(A) The external price indicators that the department has designated for the costs of personal care services are as follows: for the aide direct care component, the external price indicator is the Employment Cost Index for Compensation for December of each year, as published by the United States Department of Labor, Bureau of Labor Statistics; for the administrative component, the external price indicator is the Consumer Price Index for All Urban Consumers, as published for December of each year by the United States Department of Labor, Bureau of Labor Statistics; and for the training component, the external price indicator is the trend factor established by the Department of Health for certified home health agencies in upstate urban areas.

(B) The external price indicators that the department has designated for the costs of nursing supervision and nursing assessment are as follows: for the nurse direct care and the training components, the external price indicator is the trend factor established by the Department of Health for certified home health agencies in upstate urban areas; and for the administrative component, the trend factor is the Consumer Price Index for All Urban Consumers, as published for December of each year by the United States Department of Labor, Bureau of Labor Statistics.

(iii) The department will determine the average percentage of all providers' total reported costs for personal care services and for nursing supervision and nursing assessment that each component represents as of June 30th of the year prior to the year for which the department is establishing a rate; and the department will weigh each component's average percentage of total personal care services costs and nursing supervision and nursing assessment costs by the external price indicator for that component.

(iv) The department will multiply each provider's reported allowable costs for personal care services and, if applicable, for nursing supervision and nursing assessment, for the year specified in the required cost report by two annual projected trend factors: a projected trend factor that the department has estimated for the year that immediately follows the year for which the provider has reported its costs and a projected trend factor that the department has estimated for the year for which the department is determining a rate.

(v) The department will revise trend factors as specified in this item. Such revisions, if they occur, will occur after the department has determined providers' rates for a particular rate year and is determining providers' rates for the subsequent rate year. When the department determines, based upon the external price indicators, that the actual trend factor for the previous rate year deviated by one-half of one percent or more from the department's projected trend factor for such rate year, the department will revise the projected trend factor for the year immediately following such rate year by the amount of the deviation.

(6) Ceilings on payment for allowable costs.

(i) The department will establish ceilings on payment for providers' allowable costs. The department will determine the ceilings as set forth in this item:

(A) The department will assign providers to one of the following five regional groups:

(i) the Metropolitan Downstate Group, which includes providers located in Nassau, Rockland, Suffolk or Westchester County;

(ii) the Metropolitan Upstate Group, which includes providers located in Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga or Orange County;

(iii) the Suburban Group, which includes providers located in Cayuga, Fulton, Genesee, Madison, Montgomery, Ontario, Oswego, Rensselaer, Saratoga, Schenectady or Wayne County;

(iv) the New York City Group, which includes providers located in the five boroughs of New York City; and

(v) the Rural County Group, which includes providers located in any of the remaining 33 social services districts not included in the Metropolitan Downstate, Metropolitan Upstate, Suburban or New York City group.

(B) The department will use providers' reported allowable costs for the 1990 calendar year as the base from which it will determine the ceilings for the rate year that begins on or after January l, 1994. The department will use providers' reported allowable costs for the 1992 calendar year as the base from which it will determine the ceilings for each rate year that begins on or after January l, 1995.

(C) For each regional group of providers, the department will calculate the centered means of the appropriate base year costs, other than costs attributable to the administrative component, that the providers in the regional group have reported on the cost reports required by the department.

(D) The department will apply an annual trend factor, as determined in accordance with subclause (5) of this clause, to the centered means of the appropriate base year costs. The department will apply such an annual trend factor for each of the following years: the year that immediately follows the appropriate base year and each subsequent year up to and including but not exceeding the year for which the department will be determining providers' rates.

(E) The department will determine regional ceilings for allowable costs within the combined aide/nurse direct care and the training components of the costs of personal care services and nursing supervision and nursing assessment. The ceiling will be expressed as a percentage of the applicable centered mean, as adjusted by annual trend factors, for each such allowable cost.

(F) The department will establish the following ceilings:

(i) Within the combined aide/nurse direct care and the training components, the ceiling for allowable costs will be 115 percent of the applicable trended regional centered mean; however, any costs providers may incur under their contracts with social services districts to determine whether prospective personal care aides or nurses have federal or state criminal records or to fingerprint personal care aides will not be subject to such ceiling;

(ii) (Effective January 1, 1994, to December 31, 1994) Payment for a provider's administrative and general expenses, excluding capital costs, will not exceed 28 percent of the provider's total allowable costs, as reported by the provider in its cost report. The department will reduce payment for a provider's administrative and general expenses in accordance with the following schedule: when a provider's reported administrative and general expenses, expressed as a percentage of the provider's total allowable costs, are greater than 26 percent, but do not exceed 31 percent, of the provider's total allowable costs, the department will reduce payment for the provider's administrative and general expenses by four percent; when a provider's reported administrative and general expenses, expressed as a percentage of the provider's total allowable costs, are greater than 22 percent, but do not exceed 26 percent, of the provider's total allowable costs, the department will reduce payment for the provider's administrative and general expenses by three percentage points; and when a provider's reported administrative and general expenses, expressed as a percentage of the provider's total allowable costs, are greater than 20 percent, but do not exceed 22 percent, of the provider's total allowable costs, the department will reduce payment for the provider's administrative and general expenses by two percentage points; however, no provider's administrative and general expenses will be reduced to less than 20 percent of the provider's total allowable costs.

(iii) (Effective January 1, 1995) Payment for a provider's administrative and general expenses, excluding capital costs, will not exceed 28 percent of the provider's total allowable costs, as reported by the provider in its cost report.

(ii) The department will apply the ceilings as follows: when a provider's reported allowable costs are equal to or less than the ceiling that the department has established, the provider will receive full payment for its reported allowable costs. When a provider's reported allowable costs exceed the ceiling that the department has established, the provider will receive payment for such reported allowable costs in an amount not to exceed the ceiling.

(7) Adjustments for profit or surplus.

(i) The department will include an adjustment for profit, for proprietary providers, or surplus, for voluntary providers. The department will determine the amount of the adjustment by calculating the ratio of the provider's allowable costs for aide wages and benefits to the provider's total allowable personal care services costs; multiplying such ratio by the 26 week United States Treasury Bill rate ("treasury bill rate"), as published by the United States Department of the Treasury in the last
week of September of the year preceding the year for which the department is determining the rate; and multiplying the provider's rate, as determined in accordance with subclauses (2) - (6) of this clause, by the product of such multiplication. The result is an amount which the department will add to the provider's rate, subject to items (ii) and (iii) of this subclause.

(ii) When the treasury bill rate used for purposes of this subclause has increased or decreased from the previous applicable treasury bill rate by more than two percent, the department will consider only a two percent increase or decrease in the treasury bill rate when determining providers' adjustments for profit or surplus for a particular year.

(iii) The amount that the department will add to the provider's rate as an adjustment for profit or surplus will in no event exceed an amount equal to five percent of the provider's rate absent such adjustment for profit or surplus.

(b) New providers.

(1) Medical assistance payments to new personal care services providers for any rate year beginning on or after January 1, 1994, will be made at the lower of the following rates:

(i) the rate the provider charges the general public for personal care services; or

(ii) the rate determined by the department in accordance with subclause (2) of this clause.

(2)(i) The department will determine a new provider's payment rate based on the cost report the provider submits. Each provider must report its estimated personnel and non-personnel operating costs as specified in the cost report.

(ii) The department will consider only the provider's estimated operating costs that are allowable costs, as determined in accordance with subclause (a)(3) of this subparagraph and as adjusted by the provider in accordance with subclause (4) of such clause.

(iii) The department will determine whether the provider's estimated allowable costs exceed the ceilings that the department will establish for such costs in accordance with subclause (a)(6) of this subparagraph, except that the limitation on providers' administrative and general expenses that is set forth in subitems (a)(6)(i)(F)(II) and (III) of this subparagraph will not apply to new providers in the first year of operation, and if the provider's estimated allowable costs otherwise exceed such ceilings, the department will consider only such of the provider's estimated allowable costs that do not exceed such ceilings.

(iv) The department will calculate an amount for profit, for proprietary providers, or surplus, for voluntary providers, as determined in accordance with subclause (a)(7) of this subparagraph.

(v) The resulting rate will be payment-in-full for all personal care services provided to MA recipients during the applicable rate year, subject to any revisions the department may make in accordance with the rate revision or audit processes authorized by subparagraphs (iii) or (iv) of this paragraph.

(iii) Revisions to rates.

(a) The department will notify each provider of its approved rates of payment at least thirty days prior to the beginning of an established rate period for which the rate is to become effective. In the case of payments to be made by state governmental agencies notification shall be made only after approval of rate schedules by the state director of the budget. The advance notification of rates shall not apply to prospective or retroactive adjustments to rates that are based on rate appeals filed by the provider, audits, corrections of errors or omission of data or errors in the computation of such rates or the submission of cost report data from providers without an estimated cost basis.

(b)(1) Within 90 calendar days after the provider receives the written notification of its rate, the provider must notify the department of any errors in the rate resulting either from the provider's submission of erroneous information in its cost report or the department's erroneous computation of the rate and of the provider' s request for a revised rate.

(2) The provider must submit its notice and request for a revised rate on forms as may be required by the department. The request for a revised rate must specify the basis for the revision, as specified in clause (c) of this subparagraph, and contain documentation supporting the request. The department may request such additional documentation as determined necessary.

(c) The department will consider only those requests for rate revisions that are based on one or more of the following:

(1) the provider's claim that the rate contains mathematical, statistical, fiscal or clerical errors;

(2) the provider's claim that it has incurred new or unanticipated costs for programs or services mandated or approved by the department and that the cost report that the provider submitted to the department does not reflect the provider's actual costs for reasons beyond the provider's control; or

(3) the provider's desire to obtain a rate that is lower than the rate promulgated by the department.

(d) When the department determines that a provider's request for a revised rate does not meet one or more requirements of clause (c) of this subparagraph, the department will notify the provider in writing within 30 calendar days of such determination.

(e) When the department determines that a provider's request for a revised rate meets one or more requirements of clause (c) of this subparagraph, the department will determine whether the provider's rate should be revised. The department will notify the provider in writing of the results of its determination and, if the department determines that the provider's rate should be revised, of the revised rate. Within six months after the date the department receives the provider's request for a revised rate, the department will submit its determination regarding the revised rate to the Division of the Budget for its review and approval.

(f) Within 30 calendar days after the provider receives the written notification of its revised rate, the provider must notify the department in writing of any errors in the revised rate.

(iv) Audits, hearings and recoveries of overpayments. Parts 517, 518, and 519 of this Title, which concern provider audits, recoveries of overpayments and provider hearings respectively, apply to audits of, recoveries of overpayments from, and hearings granted to providers subject to the requirements of this paragraph.

(v) Exemptions.

(a) A social services district may request an exemption from the application of the methodology, as set forth in subparagraphs (i) through (iii) of this paragraph, to providers with which the district has contracts for the provision of personal care services. A social services district that seeks an exemption must submit a written exemption request to the department. The exemption request must describe the alternative rate methodology that the district has developed and will use to determine payments to personal care services providers and such other information as the department may require.

(b) The department may grant a social services district's exemption request when it determines that the alternative rate methodology that the district will use is based on providers' costs of providing personal care services; includes an adjustment for inflationary increases in the providers' costs of doing business; and contains provisions comparable, as determined by the department, to the rate methodology and other provisions set forth in this paragraph.

(i) Reimbursement. State reimbursement shall be available pursuant to section 368-a of the Social Services Law for expenditures for services provided in accordance with the provisions of this section.

(j) Annual plan. The local social services department shall submit annually to the New York State Department of Social Services a plan for provision of personal care services on forms required by the department.

(k) Shared aide plans. (l) Except as provided in paragraph (2) of this subdivision, each social services district must implement a shared aide plan approved by the department.

(i) Prior to implementing a shared aide plan, a social services district must develop a proposed shared aide plan and submit the proposed plan to the department for its review and approval or disapproval. The social services district must submit its proposed shared aide plan to the department on forms the department requires and within 60 business days after the department issues an administrative directive to all social services districts regarding the districts' development
and implementation of shared aide plans.

(ii) In its proposed shared aide plan, the social services district must document the following information to the department's satisfaction:

(a) the number of shared aide sites the social services district plans to establish and the projected implementation date at each site;

(b) the number of nurse supervisors, case managers, provider agency coordinators, and other personnel who will serve personal care services recipients under the district's shared aide plan;

(c) the methods the social services district will use to inform personal care services recipients and providers regarding the district's shared aide plan;

(d) the methods the social services district will use to select the personal care services providers that will participate in the district's shared aide plan;

(e) the differences, if any, between the provision of nursing assessments, nursing supervision, and case management to personal care services recipients under the district's shared aide plan and the district's existing method of delivering personal care services; and

(f) the methods the social services district will use to monitor and evaluate the district's shared aide plan, including how the district will evaluate personal care services recipients' satisfaction with the district's shared aide plan.

(iii) The department will approve proposed shared aide plans that comply with the requirements set forth in this paragraph. The department will notify the social services district in writing of its approval or disapproval of the district's proposed plan within 45 business days after receipt of the plan. If the department disapproves the social services district's proposed plan, the district must submit a revised plan within 30 business days after receipt of the department's disapproval notice. The department will notify the social services district in writing of its approval or disapproval of the district's revised plan within 45 business days after receipt of the revised plan.

(iv) Each social services district with an approved shared aide plan must submit to the department such reports or information relating to the plan's implementation as the department may require. Personal care services providers must furnish such reports or information relating to the social services district's implementation of its shared aide plan as the district or the department may require.

(v) Except as otherwise provided in this subdivision, personal care services provided under a shared aide plan must conform to the standards specified in this section.

(vi) A social services district may delegate to another agency or entity the responsibility for developing and implementing a shared aide plan provided that the department has approved the delegation, and the social services district and such other agency or entity have a written agreement or contract specifying each entity's responsibilities.

(2) A social services district is not required to develop and implement a shared aide plan if the district has requested an exemption from the shared aide plan requirement and the department has approved the district's exemption request.

(i) A social services district that seeks an exemption from the shared aide plan requirement must submit an exemption request to the department for its review and approval or disapproval. The social services district must submit its exemption request to the department on forms the department requires and within 60 business days after the department issues an administrative directive to all social services districts regarding the districts' development and implementation of shared aide plans.

(ii) In its exemption request, the social services district must satisfactorily document that the district's existing method of delivering personal care services adequately meets, and can continue to meet, recipients' personal care services needs and that a sufficient supply of personal care services providers is available, and is reasonably expected to continue to be available, to provide personal care services to recipients in the district. A social services district's exemption request must also satisfactorily document that at least one of the following exemption criteria exists in the district:

(a) the number of personal care services recipients is either too few to support a shared aide plan or so geographically dispersed that the district cannot identify a group of recipients for which a shared aide plan would be appropriate;

(b) the annual costs of delivering personal care services under a shared aide plan would be equal to, or greater than, the annual costs of delivering personal care services under the district's existing method; or

(c) the district has another cost-effective method to improve the efficiency of the delivery of personal care services.

(iii) The department will approve exemption requests that comply with the requirements set forth in this paragraph. The department will notify the social services district in writing of its approval or disapproval of the district's exemption request within 45 business days after receipt of the exemption request.

(a) If the department disapproves the district's exemption request, the district must submit either a revised exemption request or a proposed shared aide plan within 30 business days after receipt of the disapproval notice. The department will notify the social services district in writing of its approval or disapproval of the district's revised exemption request or proposed shared aide plan within 45 business days after receipt of the revised exemption request or proposed shared aide plan.

(1) If the social services district submits a revised exemption request and the department disapproves the revised exemption request, the district must submit a proposed shared aide plan within 30 business days after receipt of the disapproval notice. The social services district's proposed shared aide plan, and the department's review and approval or disapproval of the proposed shared aide plan, must otherwise meet the requirements of paragraph (1) of this subdivision.

(2) If the social services district submits a proposed shared aide plan and the department disapproves the proposed shared aide plan, the district must submit a revised shared aide plan within 30 business days after receipt of the disapproval notice. The social services district's revised shared aide plan, and the department's review and approval or disapproval of the revised shared aide plan must otherwise meet the requirements of paragraph (1) of this subdivision.

(iv) An approved exemption request is effective only for the year covered by the social services district's current approved annual plan for the provision of personal care services, as required by subdivision (j) of this section. A social services district that has been exempted from the shared aide plan requirement must submit a new exemption request or a proposed shared aide plan when the district submits a new annual plan for the provision of personal care services or before the day that the district's approved exemption request expires.
 

Doc Status: 
Complete
Effective Date: 
Wednesday, July 6, 2016
Statutory Authority: 
Social Services Law, sections 363 and 365

Section 505.15 - Psychiatric care.

505.15 Psychiatric care. (a) Provision of psychiatric care by psychiatrists in private practice. (1) Psychiatric care may be provided to a recipient of medical assistance by a qualified psychiatrist in the psychiatrist's office; in the recipient's home; in a clinic, a general or chronic disease hospital or approved medical institution or facility operated in compliance with applicable provisions of law; with respect to a child receiving psychiatric care pursuant to an individualized education program, such care may be provided in a school or an approved pre-school; or, for persons aged 65 and over and for those under 21 years of age, such care may be provided in a hospital caring exclusively or primarily for persons with mental disease. In the case of a recipient who during the course of hospitalization attains the age of 21, such services may continue until he or she reaches the age of 22.

(2) In the delivery of psychiatric care, a qualified psychiatrist in private practice may employ up to four certified social workers to provide care under his continuing direct supervision as part of a course of treatment. Services rendered by a social worker shall conform with the provisions of section 85.32 of the regulations of the New York State Department of Health. For purposes of this section, a certified social worker rendering services under the Medical Assistance Program shall mean a social worker certified pursuant to the New York State Education Law, and evidence of current registration under such law shall be provided upon request of the Department of Social Services.

(3) Psychiatric care furnished to a child which is part of the development of, or pursuant to, an individualized education program may be provided by a psychiatrist, certified social worker or certified school social worker employed by, or under contract to, a school district, an approved pre-school, or a county in the State or the City of New York. For purposes of this section, a certified school social worker means a school social worker currently registered and certified in accordance with the New York State Education Law and the rules of the Commissioner of Education.

(b) Reimbursement and payment for psychiatric care provided by psychiatrists in private practice and by certified social workers under their employ.

(1) Reimbursement and payment under the Medical Assistance Program for services described in paragraph (a)(2) of this section shall not be available for the provision of individual service to a recipient in the Medical Assistance Program whose care and maintenance is now provided pursuant to sections 410-i and/or 398-a of the Social Services Law.

(2) Reimbursement and payment under the Medical Assistance Program for services provided by a certified social worker employed by a qualified psychiatrist in private practice shall be available only when provided in the psychiatrist's office or the patient's home. For the purposes of this paragraph, patient's home shall not include facilities licensed pursuant to article 28 of the Public Health Law.

(3) Reimbursement and payment for care provided to recipients by psychiatrists or by certified social workers under their supervision shall be based on fees established by the State Department of Health and approved by the State Director of the Budget. Payment for services provided by a certified social worker shall be made to the supervising psychiatrist.

(4) A supervising psychiatrist shall provide the Department of Social Services with the name, and certification or license number issued by the New York State Education Department, of any certified social worker in his employ for whose service he may bill. Claims submitted by a supervising psychiatrist for services rendered by a certified social worker in his employ must include the name of the certified social worker who provided such services.

(5) Services provided by certified social workers under this subdivision shall be eligible for payment and State reimbursement effective January 30, 1980.

(6) Payment for drugs administered or dispensed by a psychiatrist in the course of treatment shall be in accordance with the policies set forth in this Subchapter.

(7) State reimbursement shall be available for expenditures made in accordance with provisions of this section.

(c) Reimbursement and payment for psychiatric care provided to children with disabilities. Payment is available for psychiatric care which is part of the development of, or furnished pursuant to, an individualized education program and which are provided by a psychiatrist, certified social worker or certified school social worker employed by, or under contract to, a school district, an approved pre-school, a county in the State or the City of New York. Reimbursement for such services must be made in accordance with the provider agreement.

(d) Standard of conformity. The provision of outpatient psychiatric care by a psychiatrist in private practice to a recipient in the Medical Assistance Program shall be in conformity with the provisions of sections 85.28 through 85.30 of the Department of Health regulations (10 NYCRR) in order to be a reimbursable service.

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Section 505.16 - Case management.

505.16 Case management. Medical assistance includes case management services furnished in accordance with the provisions of this section.

(a) Definitions. (1) Case management is a process which assists persons eligible for medical assistance to access necessary services in accordance with goals contained in a written case management plan.

(2) Case management services:

(i) are those services which will assist persons eligible for medical assistance to obtain needed medical, social, psychosocial, educational, financial and other services; and

(ii) are meant to assist persons identified as high users of services, or as having problems accessing medical care or services, or as belonging to certain age, diagnostic or specialized program groups, on a statewide basis or limited to persons residing in definable geographic areas.

(b) Case management services:

(1) must not be utilized to restrict the choice of a case management services recipient to obtain medical care or services from any provider participating in the medical assistance program who is qualified to provide such care or services and who undertakes to provide such care or services, including an organization which provides such care or services or which arranges for the delivery of such care or services on a prepayment basis;

(2) must not duplicate case management services currently provided under the medical assistance program or under any other program;

(3) must not be utilized by providers of case management services to create a demand for unnecessary services or programs, particularly those services or programs within their scope of authority; and

(4) must not be provided to persons receiving institutional care reimbursed under the medical assistance program or to persons in receipt of case management services under a Federal home and community based waiver.

(c) Case management functions. Case management functions are determined by the recipient's circumstances and therefore must be determined specifically in each case and with the recipient's involvement. A separate case record must be established for each recipient of case management services and must document each case management function provided, including but not limited to:

(1) Intake and screening. This function consists of the following activities:

(i) the initial contact with the recipient;

(ii) providing information concerning case management;

(iii) exploring the recipient's interest in the case management process;

(iv) determining that the recipient is a member of the provider's targeted population; and

(v) identifying potential payors for services.

(2) Assessment and reassessment. The case manager must secure directly, or indirectly through collateral sources, with the recipient's permission:

(i) an evaluation of any functional impairment on the part of the recipient, if necessary through referral for a medical assessment;

(ii) a determination of the recipient's functional eligibility for services;

(iii) information from other agencies/individuals required to identify the barriers to care and existing gaps in service to the recipient;

(iv) an assessment of the recipient's service needs including medical, social, psychosocial, educational, financial and other services; and

(v) a description of the recipient's strengths, informal support system and environmental factors relative to his/her care.

(3) Case management plan and coordination. The case management activities required to establish a comprehensive written case management plan and to effect the coordination of services include:

(i) identification of the nature, amount, frequency, duration and cost of the case management services required by a particular recipient;

(ii) selection of the nature, amount, type, frequency and duration of services to be provided to the recipient, with the participation of the recipient, the recipient's informal support network, and providers of services;

(iii) specification of the long-term and short-term goals to be achieved through the case management process;

(iv) collaboration with health care and other formal and informal service providers, including discharge planners and other case managers as appropriate, through case conferences to encourage exchange of clinical information and to assure:

(a) the integration of clinical care plans throughout the case management process;

(b) the continuity of service;

(c) the avoidance of duplication of service (including case management services); and

(d) the establishment of a comprehensive case management plan that addresses the medical, social, psychosocial, educational, and financial needs of the recipient.

(4) Implementation of the case management plan includes:

(i) securing the services determined in the case management plan to be appropriate for a particular recipient through referral to those agencies or persons who are qualified to provide the identified services;

(ii) assisting the recipient with referral and/or application forms required for the acquisition of services;

(iii) advocating for the recipient with all providers of service; and

(iv) developing alternative services to assure continuity in the event of service disruption.

(5) Crisis intervention by a case manager or practitioner, when necessary, includes:

(i) assessment of the nature of the recipient's circumstances;

(ii) determination of the recipient's emergency service needs; and

(iii) revision of the case management plan, including any changes in activities or objectives required to achieve the established goal.

(6) Monitoring and follow-up of case management services includes:

(i) verifying that quality services, as identified in the case management plan, are being received by the recipient, and are being delivered by providers in a cost-conscious manner;

(ii) assuring that the recipient is adhering to the case management plan;

(iii) ascertaining the recipient's satisfaction with the services provided and advising the preparer of the case management plan of the findings if the plan has been formulated by a practitioner;

(iv) collecting data and documenting in the case record the progress of the recipient;

(v) ascertaining whether the services to which the recipient has been referred are and continue to be appropriate to the recipient's needs, and making necessary revisions to the case management plan;

(vi) making alternate arrangements when services have been denied or are unavailable to the recipient; and

(vii) assisting the recipient and/or provider of services to resolve disagreements, questions or problems with implementation of the case management plan.

(7) Counseling and exit planning include:

(i) assuring that the recipient obtains, on an ongoing basis, the maximum benefit from the services received;

(ii) developing support groups for the recipient, the recipient's family and informal providers of services;

(iii) mediating amount the recipient, the family network and/or other informal providers of services when problems with service provision occur;

(iv) facilitating the recipient's access to other appropriate care if and when eligibility for the targeted services ceases; and

(v) assisting the recipient to anticipate the difficulties which may be encountered subsequent to admission to or discharge from facilities or other programs, including other case management programs.

(d) Procedural requirements for provision of service. (1) Assessments.

(i) The case management process must be initiated by the recipient and case manager (or practitioner, as appropriate) through a written assess ment of the recipient's need for case management as well as medical, social, psychosocial, educational, financial and other services.

(ii) An assessment provides verification of the recipient's current functioning and continuing need for services, the service priorities and evaluation of the recipient's ability to benefit from such services. The assessment process includes, but is not limited to, those activities listed under paragraph (c) (2) of this section.

(iii) An assessment must be completed by a case manager within 15 days of the date of the referral or as specified in the referral agreement. The referral for service may include a plan of care containing significant information developed by the referral source which should be included as an integral part of the case management plan.

(iv) An updated assessment of the recipient's need for case management and other services must be completed by the case manager every six months, or sooner if required by changes in the recipient's condition or circumstances.

(2) Case management plan. (i) A written case management plan must be completed by the case manager for each recipient of case management services within 30 days of the date of referral or as specified in the referral agreement, and must include, but is not limited to, those activities outlined under paragraph (c) (3) of this section.

(ii) The recipient's case management goals, with anticipated dates of completion, must be established in the initial case management plan consistent with the recipient's service needs and assessment.

(iii) The case management plan must be reviewed and updated by the case manager as required by changes in the recipient's condition or circumstances, but not less frequently than every six months subsequent to the initial plan. Each time the case management plan is reviewed, the goals established in the initial case management plan must be maintained or revised, and new goals and new time frames may be established, with the participation of the recipient.

(iv) The case management plan must specify:

(a) those activities which the recipient is expected to undertake within a given period of time toward the accomplishment of each case management goal;

(b) the name of the person or agency, including the individual and/or family members, who will perform needed tasks;

(c) the type of treatment program or service providers to which the recipient will be referred;

(d) the method of provision and those activities to be performed by a service provider or other person to achieve the recipient's related goal and objective; and

(e) the type, amount, frequency, duration and cost of case management and other services to be delivered or tasks to be performed.

(3) Continuity of service. (i) Case management services must be ongoing from the time the recipient is accepted by the case management agent for services to the time when:

(a) the coordination of services provided through case management is not required or is no longer required by the recipient;

(b) the recipient moves from the social services district;

(c) the long-term goal has been reached;

(d) the recipient refuses to accept case management services;

(e) the recipient requests that his/her case be closed;

(f) the recipient is no longer eligible for services; or

(g) the recipient's case is appropriately transferred to another case manager.

(ii) Contact with the recipient or with a collateral source on the recipient's behalf must be maintained by the case manager at least monthly, or more frequently as specified in the provider agreement.

(e) Qualifications of providers of case management services. (1) Providers. Case management services may be provided by social services agencies, facilities, persons, and groups possessing the capability to provide such services who are approved by the commissioner pursuant to a proposal approved in accordance with subdivision (f) of this section including:

(i) facilities licensed or certified under New York State law or regulation;

(ii) health care or social work professionals licensed or certified in accordance with New York State law;

(iii) State and local governmental agencies; and

(iv) home health agencies certified under New York State law.

(2) Case managers. The case manager must have two years experience in a substantial number of activities outlined in subdivision (c) of this section, including the performance of assessments and development of case management plans. Voluntary or part-time experience which can be verified will be accepted on a pro rata basis. The following may be substituted for this requirement:

(i) one year of case management experience and a degree in a health or human services field; or

(ii) one year of case management experience and an additional year of experience in other activities with the target population; or

(iii) a bachelor's or master's degree which includes a practical encompassing a substantial number of activities outlined in subdivision

(c) of this section, including the performance of assessments and development of case management plans; or

(iv) meeting the regulatory requirements of a State department for a case manager.

(f) Requirements for the provision of services. (1) Proposals.

(i) Each entity listed in paragraph (e) (1) of this section, including those units or subdivisions operating under the statutory or regulatory authority of a State department, which seeks to provide case management services to persons or groups of persons residing in definable geographic areas of the State must:

(a) in conjunction with the social services district(s) where services will be provided, submit a written proposal to the department;

(b) establish a written memorandum of understanding or referral agreement describing their current or projected relationship with the social services district(s) where case management services will be provided. A copy of the proposed memorandum of understanding or referral agreement must accompany the proposal submitted to the department.

Such proposals and agreements/memoranda of understanding will become the basis for a provider agreement between the department and the provider of case management services.

(ii) Those entities seeking to provide case management services on a statewide basis, including those units or subdivisions operating under the statutory or regulatory authority of a State department, must submit to the department a written proposal setting forth their plan for provision of case management services. Such proposal will become the basis for a written provider agreement between the provider of services and the department.

(iii) Any State department seeking to serve through case management the population with whose care it has been charged, must submit to the department a written proposal setting forth its plan and rates or fees for provision of case management services. Such proposal will become the basis for a written provider agreement between the State department providing case management services and the department.

(iv) All proposals for provision of case management services become the property of the department and must:

(a) be for a period of not more than three years; and

(b) include a budget on forms prescribed by the department documenting, pursuant to paragraph (h) (3) of this section, the estimated cost of providing case management services and identifying other funding sources available for providing case management services.

(v) Proposals for the provision of case management services must be completed on forms prescribed by the department.

(vi) At the discretion of the department, any proposal submitted to the department may be referred to other appropriate State departments for consultation prior to final approval by the department.

(vii) All proposals are subject to review and final approval by the department and the Division of the Budget.

(viii) A State department approved by the commissioner to provide case management services may be considered a social services district for the purposes of this subdivision. The agreement between this department and another State department must specify when that State department may act as a social services district and the authority to be given to such State department.

(2) Referral agreements/memoranda of understanding. Referral agreements and memoranda of understanding between providers of services and social services districts must:

(i) include all terms of the agreement in one instrument, and be dated and signed by authorized representatives of the parties to the agreement subsequent to the department's approval;

(ii) contain an effective date and termination date for the agreement;

(iii) specify the characteristics of and maximum number of persons eligible for medical assistance to be targeted for case management referred to in subparagraph (a)(2)(ii) of this section;

(iv) describe the goals and objectives to be achieved through provision of case management services to the target population;

(v) define those specific functions and activities to be performed through the case management processes outlined in subdivision (c) of this section;

(vi) describe the amount, duration, scope and method of providing such case management services under the agreement including the projected frequency and types of contact that will be sustained with the particular target group;

(vii) specify that determination of eligibility for medical assistance will be the sole responsibility of the social services district, regardless of any assistance the case management agency may provide in obtaining documentation necessary to the determination of such eligibility;

(viii) specify the locations of the facilities to be used in providing case management services;

(ix) specify the qualifications required for case managers serving the target population including copies of their job descriptions;

(x) contain assurances that recipients will be informed of services available to address emergencies that occur outside of usual working hours;

(xi) provide for informing recipients of the right to request a fair hearing in accordance with Part 358 of this Title;

(xii) specify the requirements for fiscal and program responsibility, recordkeeping, and reports, and any formats prescribed by the department for such recordkeeping and reports;

(xiii) provide for access by State and Federal officials to financial and other records specified by the department which pertain to the program;

(xiv) contain assurances that no restrictions will be imposed upon a recipient's choice of provider of case management or any other service provided under the medical assistance program and that each recipient will be advised that refusal of such services included in the case management plan does not carry the threat of fiscal or other sanctions, except in such instances where acceptance of services is otherwise a condition of eligibility for public assistance or care:

(xv) outline the provider's contingency plan for assuring smooth transition of recipients to other available sources of case management if the provider is unable to continue providing services, if the agreement between the provider and the department is not renewed, or if the agreement is terminated;

(xvi) include a copy of the forms which will be utilized in completing assessments and preparing case management plans; and

(xvii) contain assurances that an annual evaluation of the program's effectiveness will be completed.

(3) Provider agreement. Upon approval of a proposal submitted by an entity listed in subdivision (e)(1) of this section, a provider agreement will be established between the provider of service and the department. Such provider agreements must include a copy of:

(i) the provider's proposal required by paragraph (1) of this subdivision;

(ii) the referral agreement or memorandum of understanding between the provider of service and the social services district, if required under paragraph (1) of this subdivision;

(iii) a work plan outlining the case management process as it applies to the particular target population; and

(iv) the forms to be utilized in the provision of case management services.

(4) Agreement period. (i) A provider agreement may not remain in effect for a period exceeding 12 months. This provision may be waived at the discretion of the department if the provision of service to the targeted population for a greater or shorter period of time is justified.

(ii) Any provider agreement which is not being properly fulfilled must be terminated in accordance with the terms of the agreement.

(iii) Agreements to be renewed must be renegotiated in a timely manner.

(iv) Any amendment to an agreement must be considered an amendment to the proposal required by paragraph (1) of this subdivision.

(5) Annual evaluation. An annual evaluation of each case management program must be performed by the provider and must be transmitted to the department as required by the provider agreement. The annual evaluation must be received by the department at least 90 days preceding the annual anniversary of the effective date of each provider agreement. The annual evaluation must:

(i) restate the program goals and objectives of the case management services that have been provided, as listed in the approved provider proposal;

(ii) restate the population served and the scope of case management provided;

(iii) using evaluation hypotheses, demonstrate the extent to which the provider has achieved the program goals and objectives listed in the approved provider proposal;

(iv) set forth the types and sources of data collected and used in the evaluation; and

(v) recommend any program changes based upon the conclusions of the evaluation.

(6) Monitoring of program performance and provider agreements. (i) To assure that the quality of services provided is in accordance with the requirements of this section, the following program performance monitoring is required:

(a) The program performance of any entity which operates under the statutory or regulatory authority of a State department must be monitored by that department.

(b) The program performance of any other entity entering into an agreement with this department on less than a statewide basis must be monitored by the social services district(s) involved.

(c) The program performance of any State department establishing an agreement with this department for the provision of case management services must be monitored by this department.

(d) The program performance of any other entities entering into an agreement with this department must be monitored by this department.

(e) Program performance monitoring includes on-site visits, at sixmonth intervals, to providers of case management services. The six-month on-site monitoring requirement may be waived by the department to permit annual on-site monitoring of providers when, after two years of operation, no significant deficiencies have been identified in reports prepared pursuant to clause (f) of this subparagraph. In order for the department to grant a waiver, the appropriate social services district or State agency must submit to the department a written request for a waiver and copies of the four most recent monitoring reports prepared pursuant to clause (f) of this subparagraph. Upon receipt of such request and reports, the department will determine whether there are significant operational deficiencies identified in the monitoring reports. If no significant deficiencies are identified, the waiver will be granted.

(f) Reports, based upon monitoring by a social services district or by a State department, and any other evaluations required by a provider agreement must be forwarded to this department commencing with the sixth month following the effective date of each provider agreement and annually thereafter and must be received by this department no later than 90 days prior to the anniversary of the provider agreement.

(ii) The department must monitor the performance of all provider agreements.

(a) Provider agreements must be reviewed by the department at least annually to verify conformity with the terms of such agreements. Such monitoring may include:

(1) the review of periodic reports, including those program performance reports referenced in clause (i)(f) of this paragraph;

(2) any other evaluations or information required by the department or required by the provider agreement; and

(3) on-site visits to providers of service.

(b) Continuation of case management services is subject to review and approval by the department.

(g) Authorization for case management services. (1) Authorization by the social services district or by another State agency empowered by the commissioner is required prior to the provision of case management services.

(2) No single authorization for a recipient to receive case management services will exceed 12 months.

(h) Reimbursement for case management services. (1) Reimbursement for case management services is available only when such services are provided in accordance with this section.

(2) Rates, fees or amounts reimbursed for case management services are to be determined utilizing cost estimates included in the provider's proposal and any other data and information deemed appropriate, and are subject to the approval of the Division of the Budget.

(3) Documentation of the basis for case management reimbursement rates, fees or amounts including the qualifications of staff providing case management services must accompany the provider's proposal specified in subdivision (f) of this section.

(4) No payment to the provider of case management services can be made for authorized services unless such claim is supported by documentation of the time spent in providing services to each recipient. Such documentation must be maintained by the provider pursuant to regulations of the department.

(5) Payment for case management services may be made on the basis of units of service provided at a particular skill level (i. e., payment per hour or per visit), on a capitated basis ( i. e., payment of a flat fee per month or per day for each person eligible for medical assistance in the program, although varied amounts or levels of service may be required), or on such other payment basis as may be approved by the department.

(i) The provisions of this section apply to case management services provided on or after January 1, 1988.

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Effective Date: 
Monday, November 1, 1993

Section 505.17 - Radiology services.

505.17 Radiology services. (a) Scope. This section describes the department's policies governing the provision of and payment for radiology services under the Medical Assistance (MA) program.

(b) Purpose. The MA program will pay for medically necessary radiology services provided by qualified practitioners as described in this section and in the settings authorized by this section.

(c) Definitions. (1) Dentist means a dentist who is qualified in accordance with Part 506 of this Title.

(2) Physician non-specialist means a physician who is qualified in accordance with section 505.2 of this Part.

(3) Physician specialist means a physician, other than a radiologist, who is qualified as a specialist in accordance with section 505.2 of this Part.

(4) Podiatrist means a podiatrist who is qualified in accordance with section 505.12 of this Part.

(5) Qualified practitioner means a radiologist, physician specialist, physician non-specialist, dentist or podiatrist as defined in this section.

(6) Radiologist means a physician who is qualified as a specialist in radiology in accordance with section 505.2 of this Part.

(7) Radiology services means the provision of the following services to MA recipients:

(i) diagnostic radiology;

(ii) diagnostic ultrasound;

(iii) nuclear medicine; or

(iv) radiation oncology.

(8) Mobile setting means those radiology services provided by a qualified practitioner which are not performed in the practitioner's office and includes those services which use portable equipment for the provision of radiology services.

(d) Who can provide radiology services. Radiology services can be provided only by the following qualified practitioners and with the following limitations:

(1) A radiologist;

(2) A physician specialist may provide radiology services related and limited to the physician's area of specialty;

(3) A physician non-specialist may provide radiology services as medically necessary, but such services must be limited to routine diagnostic chest x-rays and/or diagnostic x-rays for acute injuries; and

(4) Dentists and podiatrists may provide radiology services related and limited to their scope of practice.

(e) Where radiology services can be provided. Qualified practitioners, as defined in this section, may provide radiology services in their offices, in mobile settings or in facilities certified under Article 28 of the Public Health Law. In each such instance the requirements of subdivisions (f) of this section must be met.

(f) Limitations on payment for radiology services.

(1) In order to be paid for both the professional and the technical and administrative components of the radiology service, as defined in section 533.6(b) of this Title, qualified practitioners who provide radiology services in their offices must perform the professional component of radiology services as set forth in section 533.6 of this Title and:

(i) own or directly lease the equipment and must supervise and control the radiology technicians who perform the radiology procedures; or

(ii) be the employees of physicians who own or directly lease the equipment and must supervise and control the radiology technicians who perform the radiology procedures.

(2) In order to be paid for both the professional and the technical and administrative components of the radiology services, as defined in section 533.6(b) of this Title, qualified practitioners who provide radiology services in mobile settings must perform the professional component of radiology services as set forth in section 533.6 of the Title and:

(i) own or directly lease the equipment and must employ the radiology technicians who perform the radiology procedures; or

(ii) be the employees of physicians who own or directly lease the equipment and such physicians must employ the radiology technicians who perform the radiology procedures.

(3) A qualified practitioner who provides radiology services in a facility certified under Article 28 of the Public Health Law which owns or leases the equipment and in which the professional component is not included in the facility's MA payment rate as established by the Department of Health and approved by the Director of the Budget will be paid only the professional component of the radiology services as defined in section 533.6 of this Title. No payment will be made to a qualified practitioner solely for the technical and administrative component of radiology services provided in such a facility.

(4) If a qualified practitioner sends a film to a radiologist for professional review, no payment will be made to the radiologist. The cost of such professional review is a cost of doing business to the qualified practitioner providing the radiology service.

(g) Leasing of radiology equipment. Payments for leasing radiology equipment must be based on the reasonable costs of furnishing and maintaining the equipment leased, must not be based on a percentage of fees billed or received for radiology services, and must be in compliance with federal and State law and regulations pertaining to kickbacks and other illegal payment or repayment arrangements.

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Section 505.18 - Clinical psychological services.

505.18 Clinical psychological services. (a) General. Clinical psychological service shall be made available to persons eligible for medical assistance as part of comprehensive health care. Such services include psychological evaluation and various therapeutic procedures appropriate for the given personality or behavior disorder. All services provided shall adhere to standards of good and proper practice acceptable to the State Commissioner of Health as set forth in section 98-a of the rules of the Commissioner of Education and in the code of ethics of the New York State Psychological Association.

(b) Qualifications. (1) Basic requirements. Psychological services shall be provided by psychologists who are qualified as clinical psychologists in accordance with the following criteria:

(i) certification in accordance with article 153 of the New York State Education Law;

(ii) completion of at least three years of training or supervised experience in clinical psychology in addition to the education requirements for certification, and is engaged in professional practice, at least half of which is devoted to providing clinical psychological services.

(2) Additional requirements. (i) Commencing on a date to be determined by the State Commissioner of Health, shall complete, every three years, not less than 75 hours of continuing education courses approved by the Health Manpower Group of the New York State Department of Health.

(ii) Approved continuation education shall be based on standards approved by the State Commissioner of Health in accordance with the following:

(a) post graduate courses promulgated and conducted by a university program in clinical psychology, or in a related field satisfactory to the New York State Psychological Association and to the New York State Department of Health;

(b) courses conducted by a psychological services center or post-doctoral training program chartered by the Board of Regents of the State of New York whose course offerings shall have met with prior approval by the New York State Psychological Association and New York State Department of Health;

(c) planned continuation education preceptorships or similar practical training approved, on an individual basis, by the New York State Psychological Association and New York State Department of Health;

(d) preparation and presentation of scientific or professional papers through professional channels evaluated and approved by the New York State Psychological Association and New York State Department of Health;

(e) teaching responsibilities in any of the foregoing forms of continuation education which shall have met with prior approval by the New York State Psychological Association and New York State Department of Health; or

(f) participation in other forms of continuation education which shall have met with prior approval jointly by the New York State Psychological Association and the State Department of Health.

(3) Psychological services furnished to a child pursuant to an individualized education program or an interim or final individualized family services plan may be provided by a clinical psychologist, a school psychologist, a social worker, a school social worker, or a school counselor who is certified in accordance with the New York State Education Law and the rules of the Commissioner of Education. For purposes of this section a certified school social worker means a social worker currently registered and certified in accordance with the New York State Education Law and the rules of the Commissioner of Education.

(c) Prior referral required. All psychological services must be supported by a referral of:

(1) the recipient's personal physician or medical resource, such as a clinic, acting as the recipient's physician;

(2) the medical director in an industrial concern;

(3) an appropriate school official;

(4) an official or voluntary health or social agency. An individualized education program or an interim or final individualized family services plan, which includes the provision of psychological services fulfills the requirement for prior referral.

(d) Reimbursement. (1) Except as otherwise provided in this subdivision, reimbursement for psychological services must be established by the Department of Health and approved by the Director of the Budget. No reimbursement will be made to a private practicing psychologist who renders psychological services in a clinic or other medical facility from which the psychologist receives a salary.

(2) Payment is available for psychological services which are part of the development of, or furnished pursuant to, an individualized education program and which are provided by a clinical psychologist, certified school psychologist, certified social worker, certified school social worker, or a school counselor employed by, or under contract to, a school district, an approved pre-school, a county in the State or the City of New York in accordance with the New York State Education Law. Reimbursement for such services must be made in accordance with the provider agreement.

(3) Payment is available for psychological services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and which are provided by a clinical psychologist, certified school psychologist, certified social worker, a certified school social worker, or a school counselor employed by, or under contract to, an approved early intervention program or a municipality in the State. Reimbursement for such services must be made in accordance with the provider agreement.

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Section 505.19 - Standards for services rendered by physicians' assistants and specialist's assistants

505.19 Standards for services rendered by physicians' assistants and specialists' assistants. (a) Services rendered by a registered physician's assistant or registered specialist's assistant shall conform to requirements in articles 131-B and 37, respectively, of the State Education and Public Health Laws and to applicable provisions in regulations of the New York State Department of Health.

(b) Services so provided shall be eligible for payment from medical assistance funds as follows:

(1) To the physician employing the registered physician's assistant or registered specialist's assistant. Such payments shall be reimbursable at fees established for physicians in Part 533 of this Title.

(i) Maximum reimbursable fee allowances contained in Part 533 of this Title shall apply whether the service is provided directly by the physician alone, by his employed physician's assistant or specialist's assistant, or by the combined service of both the physician and his employed physician's assistant or specialist's assistant.

(ii) No duplication or increase in charges shall be made by the physician for a listed service or procedure because of the use of or assistance provided by a physician's assistant or specialist's assistant in his employ.

(iii) A physician's claim for payment shall include identification of those services or procedures for which fees have been established which have been rendered by his employed physician's assistant or specialist's assistant and also the name of the physician's assistant or specialist's assistant who rendered the care.

(2) To an employing hospital, as defined in article 28 of the Public Health Law, by inclusion of the cost of provision of those services in the inpatient and/or outpatient rate developed for the facility.

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Section 505.20 - Alternate care.

505.20 Alternate care. (a) Patients who no longer need hospital or skilled nursing facility care shall be discharged promptly and, for hospital patients, shall be discharged in accordance with the Department of Health's hospital discharge planning requirements contained in section 405.22(j) of Title 10 NYCRR.

(b) Facility responsibility. (1) When a patient's condition is such that continued care in a hospital or skilled nursing facility is necessary pending placement in an alternate lower medical level of care, continuing payment may be authorized following certification by the patient's physician and a determination of coverability by the Commissioner of Health or his or her other designee, pursuant to Department of Health regulation Part 85 that skilled nursing or health-related facility services are medically necessary, are being provided, and are not otherwise available. When medically feasible, nonmedical institutional placement in the community or other community placement shall be arranged.

(2) As soon as the patient's physician has indicated need for alternate medical care placement and the anticipated date the patient will be ready for discharge to such care, the hospital or skilled nursing facility shall inform the social services district, if required by such district, and other agencies that can most appropriately be expected to arrange for the provision of alternate care services, of the patient's medical needs that must be satisfied in accordance with the physician's recommendations. Failure by the hospital or skilled nursing facility to notify the local district, if required by such district, or other appropriate agencies prior to or within 24 hours of the patient's assignment to alternate care status shall result in denial of payment for care rendered on or after that date. Verbal notification by the hospital or skilled nursing facility shall be promptly confirmed in writing to the local district, if required by the district.

(3) (i) The hospital or skilled nursing facility, through its staff members responsible for discharge planning and, as necessary, in coordination with the responsible local social services district, shall act promptly to effect arrangements for alternate care.

(ii) The hospital or skilled nursing facility shall make weekly admission contracts with at least three facilities providing the appropriate level of care in its discharge community, defined as a 50-mile radius around the facility. These contracts must be rotated weekly among all available facilities in the referring facility's discharge community. The contracts shall be documented.

(iii) Except as otherwise provided in this subparagraph, the hospital or skilled nursing facility shall have admission documentation for each patient awaiting placement on file with at least five facilities in its discharge community. A skilled nursing facility may restrict the number of facilities having a patient's admission documentation on file to fewer than five under the conditions set forth in 10 NYCRR Part 85 governing continuing stay reviews in residential health care facilities. A hospital may restrict the number of facilities having a patient's admission documentation on file to one facility when there are other hospital patients receiving medical assistance and awaiting alternate care placement; and

(a) the patient, within the next 10 days, will either be placed in another facility or discharged to the community; or

(b) the patient has requested priority for readmission to the medical facility where the patient resided prior to hospitalization, as provided for under section 360.20 of this Title.

(iv) The local social services district may direct that a hospitalized patient be placed outside the referring hospital's discharge community when the hospital has been unsuccessful in locating an alternate level of care bed within its discharge community within 60 days of the day the patient was placed in alternate care status. A decision to seek such placement shall be made only when the patient's local professional medical director:

(a) determines that the patient's needs cannot be met by facilities located within the hospital's discharge community or that the patient's condition is such that a continued hospital stay is medically contraindicated; and

(b) recommends such placement, based on his or her review of available documentation concerning the patient's medical and psychosocial needs.

(4) The hospital or skilled nursing facility shall assess the patient's medical condition and alternate medical care placement needs prior to or within 24 hours of the patient's assignment to alternate care status. To determine the alternate care level to which the patient shall be assigned, the hospital or skilled nursing facility shall apply either the patient assessment standards promulgated by the Department of Health (DOH) or a DOH-approved equivalent. Each patient assessment shall be reviewed and updated periodically during the patient's alternate level of care stay according to the continuing stay review intervals specified by DOH. A copy of each such assessment form shall be forwarded to the local district, if required by the district.

(5) No payment for hospital or skilled nursing facility care for an eligible person pending alternate medical care placement shall be made if:

(i) the requirements contained in paragraphs (1) through (4) of this subdivision are not met;

(ii) the requesting hospital or skilled nursing facility has an alternate care facility attached to it or affiliated with it and such an alternate care facility has an appropriate alternate medical care vacancy;

(iii) an appropriate alternate medical care vacancy exists within a 50-mile radius of the requesting facility or beyond this radius for a hospital patient whom the local social services district has directed the hospital to place beyond the hospital's discharge community pursuant to subparagraph (3)(iv) of this subdivision; or

(iv) the requesting hospital or skilled nursing facility has failed to secure other available third-party reimbursement for the care of the patient for that period of time the patient was awaiting alternate care placement.

(6) When the utilization review committee determines that medical assistance payments should be discontinued because the recipient has refused an appropriate alternate care placement, it shall send written notification of its action to the recipient or the recipient's representative or appropriate relative, and the local social services district. The notice shall comply with the requirements of section 360.33 of this Title. The notice and the action taken thereon shall be consistent with Federal and State utilization review requirements and the recipient shall be notified of his or her right to request a fair hearing as provided for in Part 358 of this Title.

(7) Medical assistance payments for patients needing alternate care placement shall be available only for patients whose initial admission to the hospital or skilled nursing facility was both medically necessary and appropriate. Medical assistance payments for patients needing alternate care placement shall not be available for patients whose initial admission was not both medically necessary and appropriate, but was made because an appropriate placement at a lower level of care was unavailable at the time of admission to the referring facility.

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Section 505.21 - Long term home health care programs; AIDS home care programs.

505.21 Long term home health care programs; AIDS home care programs.

(a) Definitions. (1) Long term home health care program (LTHHCP) means a coordinated plan of care and services provided at home to invalid, infirm or disabled persons who are medically eligible for placement for an extended period of time in a hospital or residential health care facility (RHCF) if the LTHHCP were unavailable. Such program can be provided in the person's home, including an adult care facility other than a shelter for adults, or in the home of a responsible relative or other responsible adult.

(2)(i) AIDS home care program (AHCP) means a coordinated plan of care and services provided at home to persons who are medically eligible for placement in a hospital or an RHCF and who are diagnosed by a physician as having acquired immune deficiency syndrome (AIDS) or human immunodeficiency virus (HIV)related illness as defined by the AIDS Institute of the State Department of Health. Such definitions are contained in directives issued by the department from time to time.

(ii) An AHCP can be provided only by a LTHHCP provider specifically authorized under article 36 of the Public Health Law to provide an AHCP as a discrete part of the LTHHCP.

(iii) An AHCP can be provided in the person's home, which includes an adult care facility specifically approved to admit or retain residents for such program, the home of a responsible relative or other responsible adult, or in other residential settings as approved by the Commissioner of Health in conjunction with the Commissioner of Social Services.

(3) Government funds means funds provided under the provisions of title 11 of article 5 of the Social Services Law (medical assistance to needy persons).

(b) Assessment and authorization. (1) (i) If a LTHHCP, as defined under article 36 of the Public Health Law, is provided in the social services district for which he or she has authority, the local social services official, before he or she authorizes care in an RHCF, must notify the person in writing of the availability of the LTHHCP.

(ii) If an AHCP, as defined under article 36 of the Public Health Law, is provided in the social services district for which he or she has authority, the local social services official, before authorizing RHCF care, home health services, or personal care services for a person with AIDS, must notify the person in writing of the availability of the AHCP. If the person desires to remain and is deemed by his or her physician able to remain in his or her own home if the necessary services are provided, such person or his or her representative must so inform the local social services official, who must authorize an assessment under the provisions of section 3616 of the Public Health Law and paragraph

(2) of this subdivision. If the results of the assessment indicate that the person can receive the appropriate level of care at home, the official must prepare for that person a plan for the provision of services comparable to services that would be rendered in a hospital or an RHCF, as appropriate for the person. In developing such plan, the official must consult with those persons performing the assessment and must assure that such plan is appropriate to the person's needs and will result in an efficient use of services.

(2) If a person who has been assessed in accordance with section 505.9(b) of this Part by a LTHHCP or an AHCP, a physician or discharge planner or, at the option of the social services district, another certified home health agency, as needing care in an RHCF or a hospital, desires to remain and is deemed by his or her physician able to remain in his/her own home or the home of a responsible relative or other responsible adult or an adult care facility, other than a shelter for adults, if the necessary services are provided and, for purposes of an adult care facility, the person meets the admission and continued stay criteria for such facility, the social services district must authorize a home assessment of the appropriateness of LTHHCP or AHCP services. The assessment must include, in addition to the physician's recommendation, an evaluation of the social and environmental needs of the person. The assessment will serve as a basis for the development of an appropriate plan of care for the person.

(i) If the person is in a hospital or an RHCF, the home assessment must be performed by the person's physician, the discharge coordinator of the hospital or RHCF referring the person, a representative of the social services district, and a representative of the LTHHCP or AHCP that will provide services to the person.

(ii) If the person is in his/her own home, the home assessment must be authorized by the social services district and must be performed by the person's physician, a representative of the social services district, and a representative of the LTHHCP or AHCP that will provide services to the person.

(iii) The assessment must be completed prior to or within 30 days after the provision of services begins. Payment for services provided prior to the completion of the assessment may be made only if it is determined, based upon such assessment, that the person qualifies for such services.

(iv) If the person is in an adult care facility, the home assessment must be performed by representatives of the LTHHCP or AHCP and the social services district in consultation with the operator of the adult care facility.

(v) Persons provided LTHHCP or AHCP services in adult care facilities must meet the admission and continued stay criteria for such facilities.

(vi) For persons requesting LTHHCP or AHCP services in adult care facilities, assessments must be completed prior to the provision of services.

(vii) Services provided by the LTHHCP or AHCP must not duplicate or replace those which the adult care facility is required by law or regulation to provide.

(viii) The commissioner must prescribe the forms on which the assessment will be made.

(3) If there is disagreement among the persons performing the assessment, or questions regarding the coordinated plan of care, or problems in implementing the plan of care, the issues must be reviewed and resolved by a physician designated by the Commissioner of Health.

(4) At the time of the initial assessment, and at the time of each subsequent assessment performed for a LTHHCP, or more often if the person's needs require it, the social services district must establish a monthly budget in accordance with which payment will be authorized. The social services district must provide the operator of the adult care facility with a copy of the completed assessment, the plan of care and the monthly budget.

(i) For persons who neither reside in adult care facilities nor receive AHCP services:

(a) The budget must include all of the services to be provided in accordance with the coordinated plan of health care by the LTHHCP.

(b) Total monthly expenditures made for a LTHHCP for a person who is the sole member of his/her household in the program must not exceed a maximum of 75 percent of the average monthly rates payable for RHCF services in the social services district. Total monthly expenditures made for a LTHHCP for two members of the same household must not exceed a maximum of 75 percent of the average monthly rates payable for both members of the household for RHCF services in the social services district.

(c) When the monthly budget prepared for a person who is the sole member of his/her household in the program is for an amount less than 75 percent of monthly rates payable for RHCF services, a "credit" may be accrued on behalf of the person. If a continuing assessment of the person's needs demonstrates that he/she requires increased services, the social services district may authorize any amount accrued during the past 12 months over the 75 percent maximum. When the monthly budget prepared for two members of the same household is for an amount less than 75 percent of monthly rates payable for RHCF services, a "credit" may be accrued on behalf of the household. If a continuing assessment of the household's needs demonstrates that the household requires increased services, the social services district may authorize any amount accrued during the past 12 months over the 75 percent maximum.

(d) When the monthly budget prepared for a person or a household is for an amount less than 75 percent of monthly rates payable for RHCF services, and the continuing assessment of the person's or household's needs demonstrates that the person or household requires increased services in an amount less than 10 percent of the prepared monthly budget, but totaling no more than 75 percent of the monthly rates payable for RHCF services, the LTHHCP may provide such services without prior approval of the social services district.

(e) If an assessment of the person's or household's needs demonstrates that the person or household requires services, the payment for which would exceed such monthly maximum, but it can be reasonably anticipated that total expenditures for required services for such person or household will not exceed such maximum calculated over a one-year period, the social services official may authorize payment for such services.

(ii) For persons residing in adult care facilities but not receiving AHCP services:

(a) The budget must include all of the services to be provided in accordance with the coordinated plan of health care by the LTHHCP.

(b) Total monthly expenditures made for LTHHCP services provided to a person residing in an adult care facility must not exceed a maximum of 50 percent of the average monthly rates payable for RHCF services in the social services district.

(c) When the monthly budget prepared for a person residing in an adult care facility is for an amount less than 50 percent of the average of the monthly rates for RHCF services, a "credit" may be accrued on behalf of the person. If a continuing assessment of the person's needs demonstrates that he/she requires increased services, the social services district may authorize the expenditure of any amount accrued during the past 12 months provided that such amount, when added to the amount previously expended, does not exceed the 50 percent maximum.

(d) When the monthly budget prepared for a person residing in an adult care facility is less than 50 percent of the monthly rates payable for RHCF services, and the continuing assessment of the person's needs demonstrates that he/she requires increased services in an amount less than 10 percent of the prepared monthly budget, but totaling no more than 50 percent of the monthly rates payable for RHCF services, the LTHHCP may provide such services without prior approval of the local social services district.

(e) If an assessment of the needs of an adult care facility resident demonstrates that services are required, the payment for which would exceed the monthly maximum specified in clause (b) of this subparagraph, but it can be reasonably anticipated that total expenditures for required services for such person will not exceed such maximum calculated over a one-year period, the social services official may authorize payment for such services.

(iii) For persons receiving AHCP services, total monthly expenditures for such services are not subject to the requirements of subparagraph

(4)(i) or (ii) of this subdivision.

(5) If a joint assessment by the social services district and the provider of services under this paragraph indicates that the maximum expenditure permitted under paragraph (4) of this subdivision is not sufficient to provide LTHHCP services to persons with special needs, social services officials may authorize, pursuant to the provisions of section 367-c(3-a) of the Social Services Law, maximum monthly expenditures for such persons, not to exceed 100 percent of the average RHCF rate established for that district. In addition, if a continuing assessment of a person with special needs demonstrates that he/she requires increased services, a social services official may authorize the expenditure of any amount which has accrued under this section during the past 12 months as a result of the expenditures for a person participating in the LTHHCP not having exceeded such maximum. If an assessment of a person with special needs demonstrates that he/she requires increased services, the payment for which would exceed such monthly maximum, the social services official may authorize payment for such services if it can reasonably be anticipated that the total expenditures for the required services for such a person will not exceed the maximum calculated over a one-year period.

(i) As used in this subdivision, the term person with special needs means a person for whom a plan of care has been developed pursuant to subdivision 2 of section 367-c of the Social Services Law:

(a) who needs care including but not limited to respiratory therapy, tube feeding, decubitus care or insulin therapy which cannot be appropriately provided by a provider of personal care services as defined in section 505.14(d) of this Part; or

(b) who has one or more of the following conditions: a mental disability as defined in section 1.03 of the Mental Hygiene Law, acquired immune deficiency syndrome, or dementia, including Alzheimer's disease.

(ii) The number of persons with special needs for whom a social services official may authorize payment for services pursuant to this paragraph is limited to 25 percent of the total number of LTHHCP clients which a social services district is authorized to serve; provided that in any district containing a city having a population of one million or more, such limit is 15 percent.

(iii) In the event that a district reaches the limitation specified in this subparagraph, the social services official may, upon approval by the commissioner, authorize payment for services pursuant to this subdivision for additional persons with special needs.

(iv) The social services official must seek approval for authorization to serve additional persons with special needs by submitting a written request to the commissioner which demonstrates that the provisions of this paragraph have (a) met the needs of individuals who could not otherwise be served through the LTHHCP; (b) diverted clients from residential health care facility admission; or (c) permitted the admission of clients on alternate care status into the LTHHCP.

(v) Social services districts are responsible for the retention of information deemed necessary by the department to evaluate the effectiveness of raising the limitation on expenditures for the delivery of long term home health care services, and for compliance with reporting requirements established by the department.

(vi) The provisions of this paragraph remain in effect until December 31, 1993.

(6) When a person who is in a hospital or an RHCF is identified as being medically eligible for hospital or RHCF care, and who desires to return to his/her own home and is deemed by his/her physician as able to be cared for at home, an assessment must be completed, and authorization for LTHHCP or AHCP services or notification that the person is ineligible for such program must be timely made with respect to ensuring continued Federal reimbursement.

(7) The social services district is responsible for the general case management of the overall needs of the person. Case management includes:

(i) facilitating determination of financial eligibility for medical assistance;

(ii) involvement in the assessment and reassessment of the social and environmental needs of the person;

(iii) preparation of the monthly budget for persons other than those receiving AHCP services; and

(iv) coordination of LTHHCP or AHCP services and other social services which may be required to keep the person in his/her own home.

(8) No single authorization for LTHHCP or AHCP services may exceed four months.

(i) A reassessment must be performed at least every 120 days, and must include an evaluation of the medical, social and environmental needs of the person, and must include a representative of the LTHHCP or AHCP, a representative of the social services district, and a physician designated by the Commissioner of Health. If there is a change in the person's level of care, he/she must be notified in writing of such change.

(ii) If a change in the person's level of care occurs between assess ment periods as recommended by the LTHHCP or AHCP, the social services district must be notified and a new assessment must be authorized.

(c) Requirements for provision of care. (1) Home health aide services may be provided directly by a LTHHCP or by an AHCP, or through contract arrangements between the LTHHCP or AHCP and voluntary agencies or proprietary agencies.

(2) Personal care services may be provided directly by a LTHHCP or an AHCP, or through contract arrangements between the LTHHCP or AHCP and the social services district or voluntary or proprietary agencies.

(3) In addition to providing nursing services to the person receiving LTHHCP or AHCP services, the LTHHCP's or AHCP's registered professional nurse or professional therapist must also be assigned responsibility for the supervision of the person providing personal care services to evaluate the person's ability to carry out assigned duties, to relate well to persons receiving LTHHCP or AHCP services, and to work effectively as a member of a team of health workers. This supervision must be carried out during periodic visits to the home in accordance with policies and standards established by the Department of Health.

(4) Services of a registered professional nurse or professional therapist and supervision of persons providing personal care services may be carried out concurrently. The frequency of periodic visits must be determined by the coordinated plan of care, but in no case may they be less frequent than every 120 days.

(d) Payment. (1) Payment for a LTHHCP or an AHCP must be at rates established for each service for each agency authorized to provide the program. Rates must be on a per-visit basis, or, in the case of home health aide services and personal care services, on an hourly basis.

(2) (i) When personal care services are directly provided by a LTHHCP or an AHCP, or when they are provided through contract arrangements with an agency that does not have a rate negotiated with the social services district, the Department of Health will establish the rate of payment with the approval of the Department of Social Services and the Director of the Budget.

(ii) When personal care services are provided by a LTHHCP or an AHCP through contract arrangements with a social services district, computation of the budget must be based on the district's salary schedule, but no payment may be made to the LTHHCP or AHCP.

(iii) When personal care services are provided by a LTHHCP or an AHCP through contract arrangements with an agency that has a rate negotiated with the social services district, the LTHHCP or AHCP rate must be no higher than that locally negotiated rate.

(3) Payment for assessment for a LTHHCP or an AHCP:

(i) is included in the hospital rate for staff participation in discharge planning;

(ii) is included in the physician's visit fee if the physician is not on the hospital staff, and performs the initial assessment while the person is in the hospital;

(iii) is included in the physician's home visit fee when the initial assessment or reassessment is performed in the person's home;

(iv) is included in the physician's office visit fee when the initial assessment or reassessment is performed in a nonfacility-related physician's office; and

(v) is included in the clinic fee when the initial assessment or reassessment is performed in a clinic or outpatient department.

(4) LTHHCP or AHCP participation in initial assessment and reassessment must be included in the administrative costs of the program.

(5) No social services district may make payments pursuant to title XIX of the Federal Social Security Act for benefits available under title XVIII (Medicare) of such Act without documentation of the following:

(i) that the LTHHCP or AHCP has prepared written justification for not having made application for Medicare because of the person's apparent technical ineligibility; or

(ii) that application for Medicare benefits has been rejected by either the Health Care Financing Administration or its fiscal intermediary.

(6) No social services district may make payment for a person receiving LTHHCP or AHCP services while payments are being made for that person for inpatient care in an RHCF or a hospital.

(e) Reimbursement. State reimbursement shall be available for expenditures made in accord with the provisions of this section.

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Section 505.22 - Shared health facilities.

505.22 Shared health facilities. (a) A shared health facility means any arrangement or operation for the delivery of medical or health care, or services meeting the criteria set forth in subdivision 2 of section 4702 of the Public Health Law, as implemented by appropriate sections of 10 NYCRR Part 83 (regulations of the State Department of Health).

(b) Effective September 1, 1977, providers and purveyors who engage in any arrangement or operation for the delivery of medical or health care or services in facilities which have been determined by the State Department of Health, pursuant to the provisions of article 47 of the Public Health Law or 10 NYCRR Part 83, to be a shared health facility will be reimbursed only if that shared health facility is currently registered with the State Department of Health.

(c) Effective September 1, 1977, shared health facilities participating in the medical assistance program shall be operated in compliance with 10 NYCRR Part 83.

(d) In addition to the applicable billing requirements set forth in section 540.7 of this Title, each provider and purveyor who provides services in a shared health facility shall include in their claims submitted for payment, under the medical assistance program, the registration number assigned to such facility by the State Department of Health.

(e) All third-party insurance benefits covering a recipient, including benefits under title XVIII of the Social Security Act, shall be applied against the cost of medical care and services provided in a shared health facility in accordance with the provisions of section 360.9 of this Title.

(f) The provisions of Part 515 of this Title shall apply to shared health facilities and to any provider, purveyor or operator receiving payments under the medical assistance program, as those terms are defined in 10 NYCRR section 83.2.

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Section 505.23 - Home health services.

505.23 Home health services. (a) Policy, scope and definitions. (1) It is the policy of the department to pay for home health services under the medical assistance (MA) program only when:
(i) the services are medically necessary; and

(ii) the services can maintain the recipient's health and safety in his or her own home, as determined by the certified home health agency in accordance with the regulations of the Department of Health.

(2) Home health services mean the following services when prescribed by a physician and provided to an MA recipient in his or her home other than a general hospital or an RHCF:

(i) nursing services provided on a part-time or intermittent basis by a certified home health agency or, if no certified home health agency is available, by a registered professional nurse or a licensed practical nurse acting under the direction of a recipient's physician;

(ii) physical therapy, occupational therapy, or speech pathology and audiology services; and

(iii) home health aide services, as defined in the regulations of the Department of Health, provided by a person who meets the training requirements of the Department of Health, whose information as required by Part 403 of Title 10 NYCRR has been entered into the home care services worker registry, is assigned by a registered professional nurse to provide home health aide services in accordance with a recipient's plan of care, and is supervised by a registered professional nurse from a certified home health agency or a therapist, in accordance with the regulations of the Department of Health.

(b) Provision of home health services. (1) A certified home health agency must provide home health services in accordance with applicable provisions of the regulations of the Department of Health (Article 7 of Subchapter C of Chapter V of Title 10 NYCRR) and with federal regulations governing home health services (42 CFR 440.70 and Part 484).

(2) As part of the comprehensive assessment or reassessment which a certified home health agency must conduct for each recipient in accordance with the regulations of the Department of Health, a certified home health agency must consider the following factors:

(i) whether home health services can be provided according to the recipient's plan of care, are medically necessary and can maintain the recipient's health and safety in his or her own home, as determined in accordance with the regulations of the Department of Health;

(ii) whether the recipient can be served appropriately and more cost-effectively by home health services provided under a consumer directed personal assistance program authorized in accordance with Section 365-f of the Social Services Law;

(iii) whether the functional needs, living arrangements and working arrangements of a recipient who receives home health services solely for monitoring the recipient's medical condition and well-being can be monitored appropriately and more cost-effectively by personal emergency response services provided in accordance with section 505.33 of this Part;

(iv) whether the functional needs, living arrangements and working arrangements of the recipient can be maintained appropriately and more cost-effectively by home health services provided by shared aides;

(v) whether a recipient who requires only personal care services or an appropriate substitute and who does not, as a part of a routine plan of care, require part-time or intermittent nursing or other therapeutic services, except for nursing services provided to a medically stable recipient, can be served appropriately and more cost-effectively through the provision of personal care services available in the district in accordance with section 505.14 of this Part;
(vi) whether home health services can be provided appropriately and more cost-effectively by the certified home health agency in cooperation with an adult day health program or a clinic, rather than on a fee-for-service basis;

(vii) whether the recipient can be served appropriately and more cost-effectively by other long-term care services including, but not limited to, services provided under the long-term home health care program (LTHHCP), the assisted living program or the enriched housing program; and

(viii) whether the recipient can be served appropriately and more cost-effectively by using specialized medical equipment covered by the MA program including, but not limited to, insulin pens.

(3) If a certified home health agency determines that a recipient can be served appropriately and more cost-effectively through the provision of services which are described in subparagraphs (2)(ii) through (viii) of this subdivision and the certified home health agency determines that such services are available in the social services district, the certified home health agency must first consider the use of such services in developing the recipient's plan of care. The recipient must use such services rather than home health services to achieve the maximum reduction in his or her need for home health services or other long-term care services.

(4) A certified home health agency must have a written agreement with each hospice that is available in the certified home health agency's service area. The agreement must specify the procedures for notifying recipients who the certified home health agency reasonably expects would be appropriate for hospice services of the availability of hospice services and for referring such recipients to hospice services. A certified home health agency must not refer a recipient to hospice services if the recipient's physician determines that hospice services are medically contra-indicated or the recipient does not choose to receive hospice services.

(c) Payment and reimbursement. (1) The department will pay providers of home health services for home health services provided under this section at rates established by the Commissioner of Health and approved by the Director of the Budget; however, no payment will be made unless the claim for payment is supported by documentation of the time spent providing services to each recipient.

(2) Certified home health agencies must maximize Medicare and third party revenues, in accordance with the requirements of this Title, and report to the department annually on such efforts.

(i) A certified home health agency with a proportion of Medicare or third-party revenue which is less than 20 percent of the Statewide or regional average for its peer group, whichever the commissioner determines more appropriate, must submit a statement to the department explaining the difference.

(ii) If an audit demonstrates that a certified home health agency has not implemented good faith efforts to collect Medicare and third-party revenues, the agency may be subject to the recoupment of MA payments for claims which are otherwise payable.

(3) Reimbursement. State reimbursement to social services districts for the costs of home health services provided under this section is available in accordance with Social Services Law, Section 368-a(1)(g).

(d) APPENDIX 1--Catanzano Implementation Plan.

REVISED

CATANZANO IMPLEMENTATION PLAN

Revised effective March 20, 1996

by order of the United States District Court

Western District of New York

This is to advise you that the Department has been ordered to issue the following directive by Order of the United States District Court, Western District of New York, in an action entitled "Catanzano et al. v. Dowling et al." 89 CV 1127L.

The Order is limited to adverse actions taken contrary to a treating physician's orders with respect to home health services.

I. HOME HEALTH SERVICES APPLICANTS: Section1.0. A home health services applicant means:

(a) each MA recipient who is not currently receiving home health services and who resides in his or her own home or in any other community setting in which home health services may be provided; and

(b) each hospitalized MA recipient who did not receive home health services immediately prior to hospitalization.

A. APPLICANT DENIALS BASED ON HEALTH AND SAFETY: Section100. Instructions to CHHAs:

(a) The following instructions apply when a certified home health agency (CHHA) determines that it will not admit a Medical Assistance

(MA) recipient because the CHHA believes that the home health services ordered by the recipient's physician cannot maintain the recipient's health and safety in the home for one or more of the reasons specified in the New York State Department of Health (DOH) regulations at Title 10 NYCRR Section763.5(b) (1) (i) through (iv), Section763.5(b) (2) (i) or Section763.5(b) (2)

(iv). These instructions do not apply when a CHHA determines not to admit an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR Section763.5(b) (2) (ii) (a) through (c) or õ763.5(b)

(2) (iii).

(b) When a CHHA determines that the home health services that an MA recipient's physician has ordered would not maintain the recipient's health and safety, the CHHA must consult with the physician. The purpose of this consultation is for the physician and the CHHA to develop, if possible, a plan of care that would maintain the recipient's health and safety.

õ101. If, after consulting with the MA recipient's physician, the CHHA determines not to admit the recipient because the CHHA and the physician are unable to develop a plan of care that the CHHA believes would maintain the recipient's health and safety, the CHHA must follow the procedures set forth below:

(a) Hospitalized MA recipients: The CHHA must refer a hospitalized MA recipient's case to the hospital discharge planner who, in accordance with existing procedures, will attempt to locate another CHHA that will agree to admit the recipient and provide home health services in accordance with the physician's order. If the discharge planner is unable to locate another CHHA, the discharge planner or the original CHHA must refer the recipient's case to the social services district. The referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA or the discharge planner must inform the recipient and the recipient's physician that the recipient's case has been referred to the social services district.

(b) Non-hospitalized MA recipients: The CHHA must refer a non-hospitalized MA recipient's case to the social services district. The CHHA's referral must include a copy of the documentation set forth in (a), above. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

õ102. Instructions to social services districts:

(a) When a CHHA or a hospital discharge planner refers an MA recipient to the social services district in accordance with the procedures outlined in õ101(a) or (b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.

(b) The local professional director or designee will review the documentation and determine, on behalf of the social services district, whether home health services should be denied contrary to the physician's order or should be provided according to the physician' s order.

(c) The local professional director or designee will notify the social services district and the CHHA of his or her final determination within 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

õ103. Depending on the local professional director's or designee's determination, the social services district must take the following action:

(a) Determinations denying home health services contrary to physician' s order:

When the local professional director or designee determines that home health services should be denied contrary to the physician's order, the social services district must send the MA recipient an adequate notice, as defined in Department regulation 18 NYCRR õ 358-2.2. The social services district must use the new notice attached to this directive as Appendix A and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES

(HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size rather than letter-size paper. The social services district must also issue the notice as a two-sided rather than a two-paged notice.

(b) Decisions that home health services should be provided according to physician's order:

When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must attempt to refer the MA recipient's case to a CHHA that will agree to admit the recipient and provide home health services according to the physician's order. If the social services district is unable to find a CHHA that will do so, the social services district must direct a CHHA to admit the recipient and to provide the recipient with home health services according to the physician's order.

B. APPLICANT DENIALS BASED ON FISCAL ASSESSMENTS: õ104. By letter dated February 18, 1994, the Department advised CHHAs and social services districts that, until further notice, CHHAs must not conduct, and social services districts must not review, fiscal assessments of home health services applicants. The Department is now changing those instructions, as set forth below.

õ105. Instructions to CHHAs: Beginning immediately, each CHHA must resume the conduct of fiscal assessments of each MA recipient who is applying for home health services and whom the CHHA reasonably expects will require home health services for more than 60 continuous days.

Section106. Instructions to social services districts: Beginning immediately, each social services district must resume the review of fiscal assessments that CHHAs conduct of MA recipients who are applying to the CHHAs for home health services.

Section107. Agreement with CHHA's determination that home health services should be denied based on the fiscal assessment:

(a) The social services district must send the recipient an adequate notice when the district agrees with the CHHA's determination that the home health services ordered by the recipient's physician should be denied based on the fiscal assessment or should be denied because the recipient is appropriate for an "efficiency." (A list of the "efficiencies" is set forth at page 8 of 92 ADM-50.)

(b) The social services district must use the new notice attached to this directive as Appendix B and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES (FISCAL ASSESSMENT AND EFFICIENCIES)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than on letter-size paper. The social services district must also issue the notice as a two-sided notice, rather than a two-paged notice, and attach the one-page list of exception criteria to the notice.

Section108. Disagreement with CHHA's determination that home health services should be denied or provided based on the fiscal assessment or based on the use of an "efficiency":

(a)The social services district must refer the recipient's case to the local professional director or designee when the district disagrees with the CHHA's determination that the home health services ordered by the recipient's physician should be denied or provided based on the fiscal assessment or based on the use of one or more "efficiencies."

(b) The local professional director or designee must review the documentation submitted by the social services district and determine whether the recipient should be denied or provided home health services.

(c) The local professional director or designee must notify the social services district and the CHHA of his or her determination within 10 business days after receiving the recipient's case and all supporting documentation from the social services district.

(d) When the local professional director or designee determines that the MA recipient should be denied home health services, the social services district must send the recipient an adequate notice. The social services district must use the new notice attached to this directive as Appendix B and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES

(FISCAL ASSESSMENT AND EFFICIENCIES)." This is the same notice described in Section 107 (b) above. Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than on letter-size paper. The social services district must also issue the notice as a two-sided notice, rather than a two-paged notice, and attach the one-page list of exception criteria to the notice.

(e) When the local professional director or designee determines that the MA recipient should be provided home health services, the social services district must attempt to refer the MA recipient's case to a CHHA that will agree to admit the recipient and provide home health services according to the physician's order. If the social services district is unable to find a CHHA that will do so, the social services district must direct a CHHA to admit the recipient and to provide the recipient with home health services according to the physician's order.

II. HOME HEALTH SERVICES RECIPIENTS: Section2.0 A home health services recipient means:

(a) each MA recipient who is currently receiving home health services in his or her own home or in any other community setting in which home health services may be provided; and

(b) each hospitalized MA recipient who received home health services immediately prior to hospitalization.

A. CHHA DETERMINATIONS, CONTRARY TO PHYSICIAN'S ORDERS, TO DISCHARGE MA RECIPIENTS BECAUSE HOME HEALTH SERVICES CANNOT MAINTAIN RECIPIENTS' HEALTH AND SAFETY:

Section 200. Instructions to CHHAs: (a) The following instructions apply when a CHHA determines that it should discharge an MA recipient, although the physician disagrees, because the home health services ordered by the recipient's physician can no longer maintain the recipient's health and safety for one or more of the reasons specified in DOH regulations at 10 NYCRR õ763.5(h) (1), õ763.5(h) (4) or õ763.5(h) (5).

(b) These instructions do not apply when a CHHA determines that it should discharge an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR õ763.5(h) (2).

(c) Determinations to discharge based on a recipient's request [10 NYCRR 763.5(h) (3)] are covered in õ215 and õ216 below.

õ201. When a CHHA determines that the home health services ordered by the recipient's physician can no longer maintain an MA recipient's health and safety, the CHHA must consult with the physician. The CHHA may discharge the recipient if the recipient's physician provides the CHHA with a written statement that the recipient may be discharged or if the recipient's physician directs the CHHA to immediately comply with his oral statement that the recipient may be discharged, in which event a written statement from the physician authorizing discharge shall be provided within seven (7) days.

õ202. When the recipient's physician does not provide the CHHA with such a written or oral statement agreeing to the discharge, the CHHA must:

(a) refer the recipient's case to a CHHA that, after assessing the recipient, agrees to admit the recipient and provide home health services according to the physician's order and continue to provide home health services according to the physician's order until the new CHHA has assessed and admitted the recipient; OR

(b) refer the recipient's case to the social services district and continue to provide home health services according to the physician's order until notified otherwise by the social services district. The CHHA's referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

õ203. Instructions to social services districts:

(a) When a CHHA refers an MA recipient to the social services district in accordance with the procedures outlined in õ 202(b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.

(b) The local professional director or designee must review the documentation and determine, on behalf of the social services district, whether home health services should be discontinued contrary to the physician's order or should be provided according to the physician's order.

(c) The local professional director or designee will notify the social services district and the CHHA of his or her determination within 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

õ204. Depending on the local professional director's or designee's determination, the social services district must take the following action:

(a) Determinations that home health services should be discontinued contrary to physicians' orders:

When the local professional director or designee determines that home health services should be discontinued contrary to the physician's order, the social services district must send the MA recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix C and entitled "NOTICE OF INTENT TO REDUCE OR DISCONTINUE HOME HEALTH SERVICES (HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue this notice as a two-sided notice rather than a two-paged notice.

(b) Determinations that home health services should be provided according to physicians' orders:

When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must inform the CHHA of the determination and that the CHHA must provide the services according to the physician's order.

Section205. Aid-continuing instructions to CHHAs and social services districts:

(a) When the social services district determines that home health services should be discontinued contrary to the physician's order, the CHHA must not discharge the recipient until the effective date of the fair hearing notice. The CHHA must also continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice.

(b) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA of each such recipient who is entitled to receive aidcontinuing.

B. CHHA DETERMINATIONS, CONTRARY TO PHYSICIANS' ORDERS, TO REDUCE MA RECIPIENTS' HOME HEALTH SERVICES BECAUSE THE RECIPIENTS' MEDICAL CONDITIONS HAVE IMPROVED:

Section206. Instructions to CHHAs: These instructions apply when a CHHA determines that a recipient's home health services should be reduced because the recipient's medical condition has improved, or for other reasons related to the recipient's medical condition or health and safety, but the recipient's physician disagrees with the CHHA's determination.

Section207. When a CHHA determines that a recipient's home health services should be reduced for such reasons, the CHHA must consult with the recipient's physician. The CHHA may reduce the recipient's home health services if the recipient's physician provides the CHHA with a written statement that the recipient's services may be reduced or if the recipient's physician directs the CHHA to immediately comply with his oral statement to reduce services, in which event a written statement from the physician authorizing a reduction in services shall be provided within seven (7) days.

Section208. If the recipient's physician does not provide the CHHA with such a written or oral statement agreeing to the reduction, the CHHA must:

(a) refer the recipient's case to a CHHA that, after assessing the recipient, agrees to admit the recipient and provide home health services according to the physician's order and continue to provide home health services according to the physician's order until the new CHHA has assessed and admitted the recipient; OR

(b) refer the recipient's case to the social services district and continue to provide home health services according to the physician's order until notified otherwise by the social services district. The CHHA's referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

Section209. Instructions to social services districts:

(a) When a CHHA refers an MA recipient to the social services district in accordance with the procedures outlined in Section 208(b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.

(b) The local professional director or designee must review the documentation and determine, on behalf of the social services district, whether home health services should be reduced contrary to the physician's order or should be provided according to the physician' s order.

(c) The local professional director or designee will notify the social services district and the CHHA of his or her determination within 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

õ210. Depending on the local professional director's or designee's determination, the social services district must take the following action:

(a) Determinations that home health services should be reduced contrary to physicians' orders:

When the local professional director or designee determines that home health services should be reduced contrary to the physician's order, the social services district must send the MA recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix C and entitled: "NOTICE OF INTENT TO REDUCE OR DISCONTINUE HOME HEALTH SERVICES (HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue the notice as a two-sided notice rather than a two-paged notice.

(b) Determinations that home health services should be provided according to physicians' orders:

When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must inform the CHHA of the determination and that the CHHA must provide the services according to the physician's order.

õ211. Aid-continuing instructions to CHHAs and social services districts:

(a) When the social services district determines that home health services should be reduced contrary to the physician's order, the CHHA must not reduce the recipient's home health services until the effective date of the notice. The CHHA must also continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice.

(b) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA of each such recipient who is entitled to receive aidcontinuing.

C. DISCONTINUANCES BASED ON FISCAL ASSESSMENTS AND REDUCTIONS BASED ON THE USE OF EFFICIENCIES:

õ212. Agreement cases: When a social services district agrees with a CHHA's determination, which was made contrary to the physician's order, that the recipient's home health services should be reduced based on the use of one or more efficiencies or discontinued based on the fiscal assessment, the district must follow the procedures set forth below: (a) Agreement on reductions:

When the social services district agrees with the CHHA that the recipient's home health services should be reduced based on the use of one or more efficiencies, the district must send the recipient a timely and adequate "NOTICE OF INTENT TO REDUCE HOME HEALTH SERVICES (FISCAL ASSESSMENT/EFFICIENCIES)" This is a new notice that is attached to this directive as Appendix D and that replaces Attachment 4 of 92 ADM-50. Until further notice, the social services district must photocopy this new notice and issue it as a two-sided notice rather than a two-paged notice on legal-size paper.

(b) Agreement on discontinuances: When the social services district agrees with the CHHA that the recipient's home health services should be discontinued based on the fiscal assessment, the social services district must send the recipient a timely and adequate "NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES

(FISCAL ASSESSMENT)." This is a new notice that is attached to this directive as Appendix E and that replaces Attachment 5 of 92 ADM-50. Until further notice, the social services district must photocopy this new notice and issue it as a two-sided notice rather than a two-paged notice on legal-size paper. The social services district must also attach the one-page list of exception criteria as page 3 of this discontinuance notice.

Section213. Disagreement cases:

(a) When a social services district disagrees with a CHHA's determination that a recipient's home health services should be reduced based on the use of one or more efficiencies, or discontinued based on the fiscal assessment, the district must refer the recipient's case to the local professional director or designee.

(b) The local professional director or designee will review the documentation submitted by the social services district and determine whether the recipient's home health services should be reduced or discontinued.

(c) The local professional director or designee will notify the social services district and the CHHA of his or her final determination within 10 business days after receiving the recipient's case and all supporting documentation from the social services district.

(d) When the local professional director or designee determines that the recipient's home health services should be reduced or discontinued, the social services district must provide the recipient with timely and adequate notice. For reductions, the district must use the notice attached to this directive as Appendix D and entitled "NOTICE OF INTENT TO REDUCE HOME HEALTH SERVICES (FISCAL ASSESSMENT/EFFICIENCIES)." For discontinuances, the district must use the notice attached to this directive as Appendix E and entitled "NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES (FISCAL ASSESSMENT)."

Section214. Aid-continuing instructions to CHHAs and social services districts:

(a) The CHHA must not reduce or discontinue the recipient's home health services until the effective date of the fair hearing notice. In addition, the CHHA must continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice. The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing.

(b) The social services district must then notify the CHHA of each such recipient who is entitled to receive aid-continuing.

E. RECIPIENTS' REQUESTS TO BE DISCHARGED: Section215. Written requests for discharge:

(a) Instructions to CHHAs: When a CHHA receives a clear, written statement that has been signed by a recipient and states that the recipient no longer wishes home health services, the CHHA must consult with the recipient's physician. When the recipient's physician believes that the recipient should continue to receive home health services according to the physician's recommendations, the CHHA must inform the social services district that the recipient wishes to be discharged contrary to the physician's recommendations. The CHHA must continue to provide home health services to the recipient in accordance with the physician's recommendations.

(b) Instructions to social services districts:

(i) When a social services district is informed by a CHHA, in accordance with Section 215(a), that the recipient has submitted a clear, written statement that he or she no longer wishes to receive home health services, the district must send the recipient an adequate notice, as defined in Department regulation 18 NYCRR Section 358-2.2. The social services district must use the new notice attached to this directive as Appendix F and entitled "ADEQUATE NOTICE OF INTENT TO DISCONTINUE HOME HEALTH CARE SERVICES (AT RECIPIENT'S REQUEST)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue the notice as a two-sided notice rather than a two-paged notice.

(ii) When the recipient requests a fair hearing within 10 days after the date that the fair hearing notice is postmarked, the social services district must notify the CHHA that it must provide aid-continuing, for which the CHHA will be reimbursed by the Medical Assistance Program.

(iii) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested that his or her benefits be reinstated. The social services district must then notify the CHHA that it must provide aid-continuing to the recipient pending issuance of a fair hearing decision.

Section216. Oral requests for discharge:

(a) Instructions to CHHAs: When a recipient orally states to CHHA personnel that he or she no longer wishes to receive home health services, the CHHA must consult with the recipient's physician. When the recipient's physician believes that the recipient should continue to receive home health services according to the physician's recommendation, the CHHA must inform the social services district that the recipient wishes to be discharged contrary to the physician's recommendation and continue to provide home health services according to the physician' s recommendations.

(b) Instructions to social services districts:

(i) When a social services district is informed by a CHHA, in accordance with õ 216 (a), that the recipient has orally stated that he or she no longer wishes to receive home health services, the district must send the recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix G and entitled "TIMELY AND ADEQUATE NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES (AT RECIPIENT'S REQUEST)" Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue this notice as a two-sided notice rather than a two-paged notice.

(ii) When the recipient requests a fair hearing prior to the effective date of the notice, the social services district must notify the CHHA that it must provide aid-continuing, for which the CHHA will be reimbursed by the Medical Assistance Program.

(iii) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA that it must provide aid-continuing to the recipient pending issuance of a fair hearing decision.

III. RETROACTIVE RELIEF: A. CHHA DETERMINATIONS MADE ON OR AFTER NOVEMBER 15, 1993, TO DENY ADMISSION TO OR DISCHARGE MA RECIPIENTS FOR REASONS RELATED TO RECIPIENTS' HEALTH AND SAFETY OR TO REDUCE MA RECIPIENTS' HOME HEALTH SERVICES FOR REASONS RELATED TO RECIPIENTS' HEALTH AND SAFETY:

õ301. Except as provided below, the following instructions apply to the following CHHA determinations made on or after November 15, 1993:

(a) CHHA determinations not to admit MA recipients because home health services cannot maintain the recipients' health and safety;

(b) CHHA determinations to discharge MA recipients because home health services can no longer maintain the recipients' health and safety for one or more of the reasons specified in DOH regulations at 10 NYCRR õ763.5(h) (1), õ763.5(h) (4) or õ763.5(h) (5); and

(c) CHHA determinations to reduce MA recipients' home health services because the recipients' medical conditions have improved or for other reasons related to the recipients' medical conditions or health and safety.

õ302. These instructions DO NOT apply to the following CHHA determinations made on or after November 15, 1993:

(a) Any CHHA determination made on or after November 15, 1993, to deny admission to an MA recipient when the recipient's physician agreed with the CHHA's determination not to admit the recipient;

(b) Any CHHA determination made on or after November 15, 1993, to reduce an MA recipient's home health services when the recipient's physician had ordered that the recipient's services be reduced and the CHHA reduced the services consistent with the physician's order;

(c) Any CHHA determination made on or after November 15, 1993, to discharge an MA recipient for reasons related to the recipient's medical condition when the recipient's physician had ordered that the recipient be discharged and the CHHA discharged the recipient consistent with the physician's order;

(d) Any CHHA determination made on or after November 15, 1993, to discharge an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR Section763.5(h) (2) or Section763.5(h) (3); and

(e) Any CHHA determination made with respect to an MA recipient who is now deceased.

Section303. Instructions to CHHAs:

(a) Each CHHA must review its case records on all MA recipients whom the CHHA either denied admission to or discharged on or after November 15, 1993, or whose home health services were reduced on or after such date.

(b) The CHHA is not required to take any further action with respect to any MA recipient who was denied admission or discharged or whose services were reduced in accordance with Section302(a), (b), (c), (d), or (e) above. The CHHA is required, however, to take certain action with respect to all other MA recipients whom the CHHA denied admission to or discharged on or after November 15, 1993, or whose services were reduced on or after such date and who did not receive an adequate fair hearing notice and an opportunity to request a fair hearing with aid-continuing, when aid-continuing was appropriate.

Specifically, the CHHA must obtain a new physician's order and conduct a new assessment of the MA recipient in accordance with DOH regulations.

Section304. When the CHHA agrees with the new physician's order, the CHHA must admit or discharge the recipient or provide the recipient services in accordance with the order.

Section305. When the CHHA disagrees with the new physician's order, the CHHA must follow the appropriate instructions to CHHAs previously set forth in this directive. Specifically, the CHHA must follow the instructions to CHHAs in õ100 et seq. when the CHHA determines not to admit the recipient contrary to the physician's order; the CHHA must follow the instructions to CHHAs in õ200 et seq. and the aid-continuing instructions in õ205, when the CHHA determines that the recipient should be discharged contrary to the physician's order; and the CHHA must follow the instructions to CHHAs in õ206 et seq. and the aid-continuing instructions in õ211 when the CHHA determines that the recipient's services should be reduced contrary to the physician's order. Aid-continuing must be provided at the level of services required by the physician's new order.

õ306. Instructions to social services districts: The social services district must follow the appropriate instructions to social services districts set forth in this directive. Specifically, the social services district must follow the instructions to social services districts in õ102 et seq. when acting upon a CHHA's determination, contrary to the physician's order, not to admit an MA recipient for health and safety reasons; the district must follow the instructions to social services districts in õ203 et seq. and the aid-continuing instructions in õ205 when acting upon a CHHA's determination, contrary to the physician's order, to discharge an MA recipient for health and safety reasons; and the district must follow the instructions to social services districts in õ209 et seq. and the aid-continuing instructions in õ211 herein when acting upon a CHHA's determination, contrary to the physician's order, to reduce a recipient's home health services. Aidcontinuing must be provided at the level of services required by the physician's new order.

B. SOCIAL SERVICES DISTRICT DETERMINATIONS MADE ON OR AFTER NOVEMBER 15, 1993, TO DENY, REDUCE OR DISCONTINUE MA RECIPIENTS' HOME HEALTH SERVICES BASED UPON FISCAL ASSESSMENTS:

õ307. Reductions or discontinuances: Social services districts and CHHAs are reminded that the instructions set forth in the Department's February 25, 1994, memorandum entitled "Further Catanzano instructions: retroactive relief" remain in effect. These instructions apply to MA recipients whose home health services were reduced or discontinued on or after November 15, 1993, for reasons related to fiscal assessments. A copy of these instructions is attached to this directive as Appendix H.

õ308. Denials contrary to physicians' orders: Social services districts must identify each case that meets the following requirements:

(a) The CHHA conducted an initial fiscal assessment on or after November 15, 1993, on any MA recipient, regardless of whether the recipient was hospitalized or residing at home, who was not receiving home health services from the CHHA when it conducted the fiscal assessment;

(b) The social services district agreed or disagreed with the CHHA's determination not to admit the MA recipient because the recipient's home care costs exceeded 90 percent of RHCF costs and the recipient did not meet any exception criteria;

(c) The recipient was denied home health services as a result of the fiscal assessment and contrary to the physician's order; and

(d) The social services district did not send the MA recipient an adequate fair hearing notice advising the recipient of his or her right to request a fair hearing to appeal the denial of home health services.

õ309. Social services districts have the following responsibilities for each MA recipient whom the districts identify as meeting the requirements set forth in (a) through (d) of õ308 above:

(a) The social services district must notify the CHHA of each recipient whom the district identifies as meeting these requirements;

(b) The CHHA must complete a new assessment of the recipient including a new fiscal assessment and forward the fiscal assessment to the district; and

(c) The social services district must follow the notice and fair hearing instructions previously set forth at õ107 herein when the social services district agrees with the CHHA's determination that home health services should be denied based on the fiscal assessment. When the social services district disagrees with the CHHA's determination that home health services should be denied or provided based on the fiscal assessment, the district must follow the notice and fair hearing instructions previously set forth at õ108 herein.

õ310. Should you have questions regarding your responsibilities, please telephone Mary Jane Conroy, Medical Assistance Specialist II, at

(518) 473-5565 or by fax at (518) 486-4112.

(APPENDIX A)/

NOTICE OF INTENT TO DENY

HOME HEALTH SERVICES

(HEALTH AND SAFETY)

______________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|__________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|__________________| | 7 CASE NAME AND ADDRESS | | 8__________________________________|__________________________________| 9 ___ ___ |GENERAL TELEPHONE No. FOR | 10 | ||QUESTIONS OR HELP __________| 11 | || | 12 | OR Agency conference __________| 13 | | 14 | Fair hearing information | 15 | and assistance __________| 16 | | 17 | Record access __________| 18 | |

1| || Legal assistance information | 2|___ ___|| __________| 3_____________________________________________________________________| 4Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 5 | | | | | 6 | | | | |

______________________________________________________________________ This is to inform you that we intend to take the following action on your home health services effective on__________________________________

__

7__| DENY YOUR REQUEST FOR ALL HOME HEALTH SERVICES ORDERED BY YOUR

PHYSICIAN Your physician wants you to receive the following home health services

(list service and frequency): ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Even though your physician wants you to receive these services, we do not think that these services can maintain your health and safety in your home because: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

__

8__| DENY YOUR REQUEST FOR SOME HOME HEALTH SERVICES ORDERED BY YOUR

PHYSICIAN Your physician wants you to receive the home health services that we have listed above. We do not think that all of these services are necessary to maintain your health and safety at home. This means that we are denying your request for the following services that your physician thinks you need: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ We intend to take this action because: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ THE REGULATION WHICH ALLOWS US TO DO THIS IS 505.23 REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION

BE SURE TO READ THE BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION

Notice of Intent to Deny Home Health Services (Health and Safety) RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because of information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by: (1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or

Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans

or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson,

Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins, or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex,

Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: ________________________________________________________________________ ________________________________________________________________________ Signature of Client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________ Phone Number__________________________Case Number_______________________

YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE

TO REQUEST A FAIR HEARING If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case. LEGAL ASSISTANCE: If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice. ACCESS TO RECORDS/INFORMATION: You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice.

(APPENDIX B)

NOTICE OF INTENT TO DENY HOME HEALTH SERVICES

(FISCAL ASSESSMENT AND EFFICIENCIES)

______________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|__________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|__________________| | 7 CASE NAME AND ADDRESS | | 8__________________________________|__________________________________| 9 ___ ___ |GENERAL TELEPHONE No. FOR | 10 | | |QUESTIONS OR HELP __________| 11 | | | | 12 | OR Agency conference __________| 13 | | 14 | Fair hearing information | 15 | and assistance __________| 16 | | 17 | Record access __________| 18 | | 19| || Legal assistance information | 20|___ ___|| __________| 21_____________________________________________________________________|

1Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 2 | | | | | 3 | | | | |

-------------------------------------------------------------------This is to inform you that we intend to deny your request for home health services effective_____________________________________________________. We are taking this action because: _____ A. The average monthly cost of your home health services exceed 90% (ninety percent) of the average montly cost of residential health care facility (RHCF) services in the social services district that is financially responsible for your Medical Assistance. Based on your fiscal assessment, the average montly cost of your home health services is: $______________ and 90% of the average cost of RHCF services in your district is: $__________. The cost of your ser- vices is $______________OVER the 90% of RHCF cost; AND

Your case does not meet any of the EXCEPTION CRITERIA listed in the enclosed attachment.

OR _____ B. We think that you would get the following service or services, which we call "efficiencies" and have included this service or services in your plan of care even though your physician does not agree with us:_______________________________________

_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________

THE REGULATION WHICH ALLOWS US TO DO THIS IS 18 NYCRR 505.23.

REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY

CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION BE SURE TO READ THE

BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION

Notice of Intent to Deny Home Health Services (Fiscal Assessment and Efficiencies)

RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because of information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. Read below for fair hearing information.

RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or

Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans

or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson,

Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins, or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex,

Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Signature of client___________________________________Date______________ Printed name of client__________________________________________________ Address_________________________________________________________________

_______________________________________________________________________ Phone Number_____________________________Case Number____________________

YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO

REQUEST A FAIR HEARING

If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case.

LEGAL ASSISTANCE:

If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice.

ACCESS TO RECORDS/INFORMATION:

You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice.

Notice of Intent to Deny Home Health Services (Fiscal Assessment and Efficiencies)

DENIAL OF HOME HEALTH SERVICES: FISCAL ASSESSMENT AND EFFICIENCIES

LIST OF EXCEPTION CRITERIA

We have determined that you do not meet any of the following exception criteria. If you disagree with this determination and you think that you meet at least one of the following exception criteria, you may ask for a State fair hearing. Please refer to the attached denial notice to learn how you may ask for a State fair hearing.

The exception criteria are as follows: 1. You are not medically eligible for residential health care facility services (nursing home care) or other long-term care services, including other residential long-term care services, or other non-residential long-term care services.

2. Home health services are cost-effective when compared to the costs of other long-term care services appropriate for your needs. We determine whether home health services are cost-effective by following these rules:

(a) If you would be placed in a general hospital, we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the average montly costs of care in a general hospital. The Department of Health determines the average monthly costs of care in a general hospital by adding the payments made to all general hospitals in the region for the diagnostic-related group

(DRG) in which you would be classified, dividing the result by the sum of the group mean lengths of stay for persons classified in such DRG, multiplying the result by 365 and further dividing by 12.

(b) If you would be placed in an intermediate care facility for the developmentally disabled, we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the regional rate of payment for care in an intermediate care facility for the developmentally disabled, as determined by the Department in consultation with the Office of Mental Retardation and Developmental Disabilities.

(c) If you would be placed in a residential health care facility

(nursing home), we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the average montly costs of residential health care facility services in the social services district for recipients who are classified in the same resource utilization group (RUG) category as the RUGs category in which you would be classified.

(d) If you would be placed in other residential long-term care services or other non-residential long-term care services, we compare the average monthly costs of the home health services that you are reasonably expected to need for 12 months to the average monthly costs, as determined by the Department, of such other residential long-term care services or non-residential long-term care services.

3. (a) You are employed. You are employed if you work and your work involves significant physical or mental activities for which you are paid or from which you receive or could receive a profit. We determine whether you are employed by using the federal regulations that are used to determine whether someone who seeks disability benefits under Title II of the federal Social Security Act can engage in "substantial gainful activity." These regulations are located at 20 C.F.R. 404.1571 through 404.1576.

(b) You are in school. The educational program in which you are enrolled must have been approved by a committee on preschool special education established in accordance with Section 4410 of the Education Law, a committee on special education established in accordance with Section 4402 of the Education Law, or the State Board of Regents.

(c) You are the parent or legal guardian of a child who lives with you and:

(i) the child is younger than 18; or

(ii) the child is younger than 21 and is enrolled in an educational program approved by the State Board of Regents; or

(iii) the child is 18 years old or older and is blind or disabled, as determined in accordance with the Department's regulations (18 NYCRR Part 360, Subpart 360-5).

(d) You are blind or disabled, and you would have to remain in a hospital or be admitted to a hospital for long-term hospitalization if home health services are not provided to you. Whether you are blind or disabled is determined in accordance with the Department's regulations at 18 NYCRR Part 360, Subpart 360-5.

4. A review of your medical history, certified by your physician and reviewed by a residential health care facility (nursing home) indicates that placement in such a facility would diminish your ability to perform the activities of daily living (e.g. eating and drinking, toileting, turning and positioning, mobility, transferring, bathing, grooming and dressing).

5. You live with another person who would need services if you were to be placed in a residential health care facility (nursing home) or another type of residential care. The costs of continuing to provide you with home health services are reasonably expected to be less than the costs of placing you in a residential health care facility or another type of residential care combined with the costs of providing services to the person with whom you live.

(APPENDIX C)

NOTICE OF INTENT TO REDUCE OR DISCONTINUE HOME HEALTH SERVICES

(HEALTH AND SAFETY)

______________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|___________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|___________________| | 7 CASE NAME AND ADDRESS | | 8___________________________________|__________________________________| 1 ___ ___ |GENERAL TELEPHONE No. FOR | 2 | | |QUESTIONS OR HELP __________| 3 | | | | 4 | OR Agency conference __________| 5 | | 6 | Fair hearing information | 7 | and assistance __________| 8 | | 9 | Record access __________| 10 | | 11| | | Legal assistance information | 12|___ ___| | __________| 13______________________________________________________________________| 14Office No.|Unit No. | Worker No. | Unit or Worker Name | Telephone No.| 15 | | | | | 16 | | | | |

---------------------------------------------------------------------This is to inform you that we intend to take the following action on your home health services effective on______________________________________.

__ 17_| REDUCE YOUR HOME HEALTH SERVICES Although your physician disagrees with us, we think that your home health services should be reduced FROM: __________________________________________________________________

_______________________________________________________________________ _______________________________________________________________________ TO: ____________________________________________________________________

_______________________________________________________________________ _______________________________________________________________________ We intend to take this action because of the following changes in your medical condition or for other reasons related to your health and safety:

_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ __ 19_| DISCONTINUE YOUR HOME HEALTH SERVICES Although your physician thinks that you should continue to receive home health services, we do not think that home health services can continue to maintain your health and safety because:_____________________________

_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________

THE REGULATION WHICH ALLOWS US TO DO THIS IS 505.23.

REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY

CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION BE SURE TO READ THE

BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION

Notice of Intent to Reduce or Discontinue Home Health Services (Health and Safety) RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because of information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. If you want to have your bebefits continue unchanged (aid continuing) until you get a fair hearing decision, you must request a fair hearing in the way described below. A request for a conference alone wil not result in continuation of benefits. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or

Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans

or Wyoming County: (716)852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson,

Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins, or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex,

Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__ 1_| I want a fair hearing. The agency's action is wrong because: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Signature of Client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________

_______________________________________________________________________ Phone Number__________________________Case Number_______________________ YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO REQUEST A FAIR HEARING

If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case.

CONTINUING YOUR HOME HEALTH SERVICES: If your home health services are being discontinued and you request a fair hearing before the effective date stated in this notice, you will continue to receive your home health services unchanged until the fair hearing decision is issued. However, if you lose the fair hearing, we may recover the cost of any home health services that you should not have received. If you want to avoid this possibility, check the box below to indicate that you do not want your aid continued, and send this page along with your hearing request. If you do check the box, the action described above will be taken on the effective date listed above.

__ 1_| I agree to have the action taken on my home health services, as described in this notice, prior to issuance of the fair hearing decision.

LEGAL ASSISTANCE:

If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice.

ACCESS TO RECORDS/INFORMATION:

You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice.

(APPENDIX D)

NOTICE OF INTENT TO REDUCE

HOME HEALTH SERVICES

(FISCAL ASSESSMENT/EFFICIENCIES)

______________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|__________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|__________________| | 7 CASE NAME AND ADDRESS | | 8__________________________________|__________________________________| 9 ___ ___ |GENERAL TELEPHONE No. FOR | 10 | ||QUESTIONS OR HELP __________| 11 | || | 12 | OR Agency conference __________| 13 | | 14 | Fair hearing information | 15 | and assistance __________| 16 | | 17 | Record access __________| 18 | | 19| || Legal assistance information | 20|___ ___|| __________| 21_____________________________________________________________________| 22Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 23 | | | | | 24 | | | | |

______________________________________________________________________ We are reducing your Home Health Services effective_____________________ You will receive services FROM_________________________TO_______________ as long as you remain financially eligible for Medical Assistance and your service needs do not change. Your services are being reduced: FROM:

(LIST SERVICES HERE: NURSING, PHYSICAL THERAPY, OCCUPATIONAL THERAPY, SPEECH PATHOLOGY, AUDIOLOGY SERVICES AND HOME HEALTH

AIDE SERVICES, ETC. AND DETAIL FREQUENCY OF EACH SERVICE.) ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ TO:

(LIST SERVICES HERE: NURSING, PHYSICAL THERAPY, OCCUPATIONAL THERAPY, SPEECH PATHOLOGY, AUDIOLOGY SERVICES AND HOME HEALTH

AIDE SERVICES, ETC. AND DETAIL FREQUENCY OF EACH SERVICE.) ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ AND:

(LIST ONE OR MORE "EFFICIENCIES" HERE: PERS, SHARED

AIDE, PERSONAL CARE SERVICES, ADULT DAY HEALTH, LONG TERM HOME HEALTH CARE PROGRAM, ASSISTED LIVING PROGRAM, ENRICHED HOUSING

PROGRAM, OTHER.) ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

BECAUSE: We think that you are now appropriate for the "efficiency" or "efficiencies" listed above, even though your physician does not agree with us. We have added this "efficiency(ies)" to your plan of care. We have also reduced, but not stopped, the home health services you now receive. This means that you will receive the reduced home health services listed above AND the "efficiency(ies)" listed above.

You will also receive a plan of care which explains the tasks you will receive and how often you will receive help with these tasks.

If your medical condition or social situation changes, your needs will be reevaluated.

THE REGULATION WHICH ALLOWS US TO DO THIS IS 18 NYCRR 505.23.

REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY

CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION

BE SURE TO READ THE BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION Notice of Intent to Reduce Home Health Services (Fiscal Assessment and Efficiencies) RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. If you want to have your benefits continue unchanged (aid continuing) until you get a fair hearing decision, you must request a fair hearing in the way described below. A request for a conference alone will not result in continuation of benefits. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or

Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans

or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson,

Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex,

Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Signature of client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________ ________________________________________________________________________ Phone Number__________________________Case Number_______________________ YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO REQUEST A FAIR HEARING If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case. CONTINUING YOUR HOME HEALTH SERVICES: If you request a fair hearing before the effective date stated in this notice, you will continue to receive your home health services unchanged until the fair hearing decision is issued. However, if you lose the fair hearing, we may recover the cost of any home health services that you should not have received. If you want to avoid this possibility, check the box below to indicate that you do not want your aid continued, and send this page along with your hearing request. If you do check the box, the action described above will be taken on the effective date listed above.

__

1__| I agree to have the action taken on my home health services, as

described in this notice, prior to issuance of the fair hearing decision. LEGAL ASSISTANCE: If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice. ACCESS TO RECORDS/INFORMATION: You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice.

(APPENDIX E)

NOTICE OF INTENT TO DISCONTINUE

HOME HEALTH SERVICES

(FISCAL ASSESSMENT)

_____________________________________________________________________

2NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 3 DATE: | DATE: |OR DISTRICT OFFICE | 4_______________|__________________| | 5CASE | CIN | | 6NUMBER | NUMBER | | 7_______________|__________________| | 8 CASE NAME AND ADDRESS | | 9__________________________________|__________________________________| 10 ___ ___ |GENERAL TELEPHONE No. FOR | 11 | | |QUESTIONS OR HELP __________| 12 | | | | 13 | OR Agency conference __________| 14 | | 15 | Fair hearing information | 16 | and assistance __________|

1 | | 2 | Record access __________| 3 | | 4| || Legal assistance information | 5|___ ___|| __________| 6_____________________________________________________________________| 7Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 8 | | | | | 9 | | | | |

_____________________________________________________________________ This is to inform you that we intend to discontinue Medical Assistance payments for home health services; however, payment for the home health services that you are currently receiving will continue until the appropriate long-term services listed below become available. This discontinuance will not happen before the effective date of this notice which is __________________________________________. We are taking this action because we have decided that: 1. The average monthly cost of your home health services exceeds

90% (ninety percent) of the average monthly cost of residential health care facility (RHCF) services in the social services district that is financially responsible for your Medical Assistance. Based on your fiscal assessment, the average monthly cost of your home health services is: $_____________, and 90% of the average cost of RHCF services in your district is: $_________. The cost of your services is $_________OVER the 90% of RHCF cost; AND 2. You do not meet any of the EXCEPTION CRITERIA listed in the

enclosed attachment. Based on your current medical condition, you must be referred to the following APPROPRIATE LONG-TERM CARE SERVICES:

_______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ If you refuse to participate in admission requirements for the RHCRs or refuse to accept the services listed above when they become available, Medical Assistance payments for your home health services will STOP THE REGULATION WHICH ALLOWS US TO DO THIS IS 18 NYCRR 505.23. REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION

BE SURE TO READ THE BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION Notice of Intent to Discontinue Home Health Services (Fiscal Assessment) RIGHT TO A CONFERENCE:

You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. If you want to have your benefits continue unchanged (aid continuing) until you get a fair hearing decision, you must request a fair hearing in the way described below. A request for a conference alone will not result in continuation of benefits. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or

Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans

or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson,

Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins, or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex,

Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: _______________________________________________________________________. Signature of client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________ Phone Number__________________________Case Number_______________________ YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO REQUEST A FAIR HEARING If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case. CONTINUING YOUR HOME HEALTH SERVICES: If you request a fair hearing before the effective date stated in this notice, you will continue to receive your home health services unchanged until the fair hearing decision is issued. However, if you want to avoid this possibility, check the box below to indicate that you do not want your aid continued, and send this page along with your hearing request. If you do check the box, the action described above will be taken on the effective date listed above.

__ __| I agree to have the action taken on my home health services, as

described in this notice, prior to issuance of the fair hearing decision. LEGAL ASSISTANCE: If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice. ACCESS TO RECORDS/INFORMATION: You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice. Notice of Intent to Discontinue Home Health Services (Fiscal Assessment)

DISCONTINUANCE OF HOME HEALTH SERVICES: FISCAL ASSESSMENT

LIST OF EXCEPTION CRITERIA

We have determined that you do not meet any of the following exception criteria. This means that you must be referred to long-term care services that are appropriate for your needs. However, the Medical Assistance (MA) program will continue to pay for your home health services until the other appropriate long-term care services become available to you. The certified home health agency that is providing you with home health services will notify you when other appropriate longterm care services become available to you.

If you disagree with our determination and you think that you meet at least one of the following exception criteria, you may ask for a State fair hearing and for your home health services to continue unchanged until the fair hearing decision is issued (aid-continuing). Please refer to the attached discontinuance notice to learn how you may ask for a State fair hearing and aid-continuing.

The exception criteria are as follows: 1. You are not medically eligible for residential health care facility

(nursing home) services or other long-term care services, including other residential long-term care services, or other non-residential long-term care services.

2. Home health services are cost-effective when compared to the costs of other long-term care services appropriate for your needs. We determine whether home health services are cost-effective by following these rules:

(a) If you would be placed in a general hospital, we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the average monthly costs of care in a general hospital. The Department of Health determines the average monthly costs of care in a general hospital by adding the payments made to all general hospitals in the region for the diagnostic-related group

(DRG) in which you would be classified, dividing the result by the sum of the group mean lengths of stay for persons classified in such DRG, multiplying the result by 365 and further dividing by 12.

(b) If you would be placed in an intermediate care facility for the developmentally disabled, we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the regional rate of payment for care in an intermediate care facility for the developmentally disabled, as determined by the Department in consultation with the Office of Mental Retardation and Developmental Disabilities.

(c) If you would be placed in a residential health care facility

(nursing home), we compare the average monthly costs of the home health services you are reasonably expected to need for 12 months to the average monthly costs of residential health care facility services in the social services district for recipients who are classified in the same resource utilization group (RUG) category as the RUGs category in which you would be classified.

(d) If you would be placed in other residential long-term care services or other non-residential long-term care services, we compare the average monthly costs of the home health services that you are reasonably expected to need for 12 months to the average monthly costs, as determined by the Department, of such other residential long-term care services or non-residential long-term care services.

3. (a) You are employed. You are employed if you work and your work involves significant physical or mental activities for which you are paid or from which you receive or could receive a profit. We determine whether you are employed by using the federal regulations that are used to determine whether someone who seeks disability benefits under Title II of the federal Social Security Act can engage in "substantial gainful activity." These regulations are located at 20 C.F.R. 404.1571 through 404.1576.

(b) You are in school. The educational program in which you are enrolled must have been approved by a committee on preschool special education established in accordance with Section 4410 of the Education Law, a committee on special education established in accordance with Section 4402 of the Education Law, or the State Board of Regents.

(c) You are the parent or legal guardian of a child who lives with you and:

(i) the child is younger than 18; or

(ii) the child is younger than 21 and is enrolled in an educational program approved by the State Board of Regents; or

(iii) the child is 18 years old or older and is blind or disabled, as determined in accordance with the Department's regulations (18 NYCRR Part 360, Subpart 360-5).

(d) You are blind or disabled, and you would have to remain in a hospital or be admitted to a hospital for long-term hospitalization if home health services do not continue to be provided to you. Whether you are blind or disabled is determined in accordance with the Department's regulations at 18 NYCRR Part 360, Subpart 360-5.

4. A review of your medical history, certified by your physician and reviewed by a residential health care facility (nursing home) indicates that placement in such a facility would diminish your ability to perform the activities of daily living (e.g. eating and drinking, toileting, turning and positioning, mobility, transferring, bathing, grooming and dressing).

5. You live with another person who would need services if you were to be placed in a residential health care facility(nursing home) or another type of residential care. The costs of continuing to provide you with home health services are reasonably expected to be less than the costs of placing you in a residential health care facility or another type of residential care combined with the costs of providing services to the person with whom you live.

(APPENDIX F)

ADEQUATE

NOTICE OF INTENT TO DISCONTINUE

HOME HEALTH SERVICES

(BY RECIPIENT'S REQUEST)

_____________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|__________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|__________________| | 7 CASE NAME AND ADDRESS | | 8__________________________________|__________________________________| 9 ___ ___ |GENERAL TELEPHONE No. FOR | 10 | | |QUESTIONS OR HELP __________| 11 | | | | 12 | OR Agency conference __________| 13 | | 14 | Fair hearing information | 15 | and assistance __________| 16 | | 17 | Record access __________| 18 | | 19| || Legal assistance information | 20|___ ___|| __________| 21_____________________________________________________________________| 22Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 23 | | | | | 24 | | | | |

_____________________________________________________________________ This is to inform you that we intend to discontinue your home health services effective on _________________________________________________. We are taking this action because we have received a clear written statement that you have signed and that tells us that you no longer want to receive any home health services from the certified home health agency (CHHA) that is providing you with services now. If you know the name of the CHHA that is providing you with home health services now, please write the CHHA's name here:________________________ _______________________________________________________________________. If you know the address of this CHHA, please write the address here:____ _______________________________________________________________________. THE REGULATIONS WHICH ALLOW US TO DO THIS ARE 18 NYCRR 505.23 AND 42 CFR 431.213(b). REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION

BE SURE TO READ THE BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION Adequate notice of intent to discontinue home health services at recipient's request RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because of information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you want to have your benefits continue unchanged (aid continuing) until you get a fair hearing decision, you must request a fair hearing in the way described below. A request for a conference along will not result in continuation of benefits. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins, or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex, Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Signature of client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________ Phone Number__________________________Case Number_______________________ YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO REQUEST A FAIR HEARING If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case. CONTINUING YOUR HOME HEALTH SERVICES: If you request a fair hearing within 10 days of the date of the postmark of the mailing of this notice, your home health services will be reinstated (aid continuing) and will remain unchanged until the fair hearing decision is issued. However, if you lose the fair hearing, we may recover the cost of any home health services that you should not have received. If you want to avoid this possibility, check the box below to indicate that you do not want your aid continued, and send this page along with your hearing request. If you do check the box, the action described above will be taken on the effective date listed above.

__

2__| I agree to have the action taken on my home health services, as

described in this notice, prior to the issuance of the fair hearing decision. LEGAL ASSISTANCE: If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice. ACCESS TO RECORDS/INFORMATION: You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record which you need for your fair hearing. To request such documents or to find out how you may review your case record, call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice.

(APPENDIX G)

TIMELY AND ADEQUATE

NOTICE OF INTENT TO DISCONTINUE

HOME HEALTH SERVICES

(BY RECIPIENT'S REQUEST)

_____________________________________________________________________

1NOTICE | EFFECTIVE |NAME AND ADDRESS OF AGENCY/CENTER | 2 DATE: | DATE: |OR DISTRICT OFFICE | 3_______________|__________________| | 4CASE | CIN | | 5NUMBER | NUMBER | | 6_______________|__________________| | 7 CASE NAME AND ADDRESS | | 8__________________________________|__________________________________| 9 ___ ___ |GENERAL TELEPHONE No. FOR | 10 | | |QUESTIONS OR HELP __________| 11 | | | | 12 | OR Agency conference __________| 13 | | 14 | Fair hearing information | 15 | and assistance __________| 16 | | 17 | Record access __________| 18 | | 19| || Legal assistance information | 20|___ ___|| __________| 21_____________________________________________________________________| 22Office No.|Unit No. | Worker No. |Unit or Worker Name | Telephone No.| 23 | | | | | 24 | | | | |

_____________________________________________________________________ This is to inform you that we intend to discontinue your home health services effective on _________________________________________________. We are taking this action because we believe that you have told the certified home health agency (CHHA) that is providing you with home health services that you no longer want to receive home health services. If you know the name of the CHHA that is providing you with home health services now, please write the CHHA's name here:________________________ _______________________________________________________________________. If you know the address of this CHHA, please write the address here:____ _______________________________________________________________________. THE REGULATION WHICH ALLOWS US TO DO THIS IS 18 NYCRR 505.23. REGULATIONS REQUIRE THAT YOU IMMEDIATELY NOTIFY THIS DEPARTMENT OF ANY CHANGES IN NEEDS, INCOME, RESOURCES, LIVING ARRANGEMENTS OR ADDRESS.

YOU HAVE THE RIGHT TO APPEAL THIS DECISION

BE SURE TO READ THE BACK OF THIS NOTICE ON HOW TO APPEAL THIS DECISION Timely and adequate notice of intent to discontinue home health services at recipient's request. RIGHT TO A CONFERENCE: You may have a conference to review these actions. If you want a conference, you should ask for one as soon as possible. At the conference, if we discover that we made the wrong decision or if, because of information you provide, we determine to change our decision, we will take corrective action and give you a new notice. You may ask for a conference by calling us at the number on the first page of this notice or by sending a written request to us at the address listed at the top of the first page of this notice. This number is used only for asking for a conference. It is not the way you request a fair hearing. If you ask for a conference you are still entitled to a fair hearing. If you want to have your benefits continue unchanged (aid continuing) until you get a fair hearing decision, you must request a fair hearing in the way described below. A request for a conference along will not result in continuation of benefits. Read below for fair hearing information. RIGHT TO A FAIR HEARING: If you believe that the above action is wrong, you may request a State fair hearing by:

(1) Telephoning: (PLEASE HAVE THIS NOTICE WITH YOU WHEN YOU CALL.) If you live in: New York City (Manhattan, Bronx, Brooklyn, Queens or Staten Island): (212) 417-6550 If you live in: Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans or Wyoming County: (716) 852-4868 If you live in: Allegany, Chemung, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Wayne or Yates County: (716) 266-4868 If you live in: Broome, Cayuga, Chenango, Cortland, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tompkins or Tioga County: (315) 422-4868 If you live in: Albany, Clinton, Columbia, Delaware, Dutchess, Essex, Franklin, Fulton, Greene, Hamilton, Montgomery, Orange, Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan, Ulster, Warren, Washington or Westchester County: (518) 474-8781 If you live in: Nassau or Suffolk County: (516) 739-4868

OR

(2) Writing: By sending a completed copy of both pages of this notice to the Office of Administrative Hearings, New York State Department of Social Services, P.O. Box 1930, Albany, New York 12201. Please keep a copy for yourself.

__

1__| I want a fair hearing. The agency's action is wrong because: _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ Signature of client______________________________Date___________________ Printed name of client__________________________________________________ Address_________________________________________________________________ Phone Number__________________________Case Number_______________________

YOU HAVE 60 DAYS FROM THE DATE OF THIS NOTICE TO REQUEST A FAIR HEARING If you request a fair hearing, the State will send you a notice informing you of the time and place of the hearing. You have the right to be represented by legal counsel, a relative, a friend or other person, or to represent yourself. At the hearing you, your attorney or other representative will have the opportunity to present written and oral evidence to demonstrate why the action should not be taken, as well as an opportunity to question any persons who appear at the hearing. Also, you have a right to bring witnesses to speak in your favor. You should bring to the hearing any documents such as this notice, medical bills, medical verification, letters, etc. that may be helpful in presenting your case. CONTINUING YOUR HOME HEALTH SERVICES: If you request a fair hearing before the effective date stated in this notice, you will continue to receive your home health services unchanged until the fair hearing decision is issued. However, if you lose the fair hearing, we may recover the cost of any home health services that you should not have received. If you want to avoid this possibility, check the box below to indicate that you do not want your aid continued, and send this page along with your hearing request. If you do check the box, the action described above will be taken on the effective date listed above.

__

2__| I agree to have the action taken on my home health services, as described in this notice, prior to issuance of the fair hearing decision. LEGAL ASSISTANCE: If you need free legal assistance, you may be able to obtain such assistance by contacting your local Legal Aid Society or other legal advocate group. You may locate the nearest Legal Aid Society or advocate group by checking your Yellow Pages under "Lawyers" or by calling the number indicated on the first page of this notice. ACCESS TO RECORDS/INFORMATION: You have the right to review your case record. Upon your request, you have the right to free copies of documents which we will present into evidence at the fair hearing. Also, upon request, you have the right to free copies of other documents from your case record. Call the number indicated on the first page of this notice, or send a written request to us at the address listed at the top of the first page of this notice. If you want additional information about your case, how to request a fair hearing, how to gain access to your case file and/or additional copies of documents, you may call the number indicated on the first page of this notice or write us at the address listed at the top of the first page of this notice. State of New York

Department of Social Services

APPENDIX H

M E M O R A N D U M

DSS-524EL TO: All Social Services DATE: February 25, 1994

District Commissioners FROM: Barry T. Berberich SUBJECT: Further Catanzano

Assistant Commissioner instructions: retroactive

relief

This memorandum contains further instructions regarding the preliminary injunction issued on February 16, 1994, in CATANZANO ET AL. V. DOWLING ET AL. (USDC, WDNY). In Section IV of the Department's February 18th letter to social services districts and CHHAs regarding the CATANZANO preliminary injunction, the Department informed them that it would be providing such instructions regarding retroactive relief as soon as possible.

The specific section of the court's order directing retroactive relief requires the State and County defendants to:

"take immediate steps to provide notice and hearing rights to members of plaintiffs' class who have had their home health care services suspended, terminated or reduced without the benefit of notice, the right to a hearing or aid-continuing since November 15, 1993."

To comply with this order, each social services district must review its case records on each home health services recipient for whom a CHHA conducted a fiscal assessment and, as a result of the fiscal assessment, reduced or discontinued (i.e. suspended or terminated) the recipient's home health services on or after November 15, 1993.

Please note that the order does not apply to Medical Assistance recipients who were hospitalized when the CHHA conducted the fiscal assessment. In addition, the order does not apply to CHHA determinations to reduce or discontinue a recipient's home health services for reasons that are unrelated to the costs of the recipient's care when compared to 90 percent of residential health care facility costs and the recipient's failure to meet any exception criteria.

Specifically, each district must identify each case that meets the following requirements:

a. The CHHA conducted a fiscal assessment on a Medical Assistance recipient who, at the time of the fiscal assessment, was receiving home health services from the CHHA and was not hospitalized, and the CHHA reduced or discontinued the recipient's home health services on or after November 15, 1993, as a result of the fiscal assessment;

b. The social services district agreed with the CHHA's determination that the recipient's home health services should be reduced or discontinued on or after November 15, 1993; and

c. The social services district did not provide the recipient with a timely notice and an opportunity for a fair hearing to review the determination that the recipient's home health services should be reduced or discontinued.

Social services districts and CHHAs have the following responsibilities for each home health services recipient who meets the requirements set forth in a - c, above:

1. The social services district must notify the CHHA of each recipient whom the district has identified as meeting these requirements.

2. For each recipient who the district has determined meet these requirements, the CHHA must reinstate the home health services that the recipient received immediately prior to the CHHA's reduction or discontinuance made as a result of the fiscal assessment. The CHHA must notify the social services district when it has reinstated the recipient's home health services.

3. For each such recipient, the CHHA must then complete a new fiscal assessment in accordance with the provisions of 92 ADM-50 and notify the social services district of the results of the new fiscal assessment in accordance with 18 NYCRR 505.23(c) and 92 ADM-50.

4. The social services district must send the recipient a timely notice and an opportunity to request a fair hearing to review any proposed reduction or discontinuance that the CHHA proposes to take as a result of the new fiscal assessment that the CHHA has completed in accordance with Step 3, above. The district must use the appropriate fair hearing notice attached to 92 ADM-50, but must modify the notice as follows:

AGREEMENT ON REDUCTIONS: When the social services district agrees with the CHHA that the recipient's home health services must be reduced, the social services district must send the recipient a timely "Notice of Decision to Reduce

(Fiscal Assessment) Home Health Services" (Attachment 4 to 92 ADM-50). Please note that the social services district does NOT refer these cases to the local professional director or designee. In the "BECAUSE" section of the notice, the district must thus cross out the words, "Local Professional Director or designee," and insert the words, "social services official," so that the sentence reads as follows: "Your case has been reviewed by the social services official and it is his/her determination, based on your current medical condition, that your home health care services must be reduced."

AGREEMENT ON DISCONTINUANCES: When the social services district agrees with the CHHA that the recipient's home health services must be discontinued, the social services district must send the recipient a timely "Notice of Decision to Discontinue (Fiscal Assessment) Home Health Services" (Attachment 5 to 92 ADM-50). Again, please note that the social services district does not refer these cases to the local professional director or designee. Consequently, in the first sentence of the second paragraph of the notice, the district must cross out the words, "the Local Professional Director or designee has," and insert the words, "the social services official," so that the sentence reads as follows: "We are taking this action because the social services official has decided that:"

5. The social services district must notify the CHHA of each recipient who timely requests a fair hearing with aid-continuing. The Department's Office of Administrative Hearings will notify the social services district of all such recipients.

6. The CHHA must NOT reduce or discontinue the recipient's home health services until the effective date of the notice and must continue to provide the recipient with aid-continuing upon being notified by the district that the recipient has timely requested a hearing with aid-continuing. Aid-continuing is defined as the same type of home health services, at the same scope and frequency, as the recipient received immediately prior to the reduction or discontinuance made as a result of the fiscal assessment.

The Department will issue instructions as soon as possible regarding notice and fair hearing rights for home health services applicants. Pending such further instructions, NO fiscal assessments are to be performed on any MA recipient who first applies for home health services on or after February 16, 1994.

Please contact Mary Jane Conroy of my staff, at (518) 473-5565, should you have any questions regarding your responsibilities under this preliminary injunction.

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Effective Date: 
Wednesday, June 27, 2012

Section 505.24 - Blood, plasma or related products.

505.24 Blood, plasma or related products. (a) The cost of blood, plasma or related products provided by a hospital or by a certified independent health facility are not eligible for reimbursement if the costs of such blood products are included in the financial statement used as the basis for determination of the facility's medical assistance rate.

(b) The cost of blood, plasma or related products when not available without charge or when not provided for as in subdivision (a) of this section, may be eligible for reimbursement if provided on the written order of a physician.

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Section 505.25 - Ambulatory care for recipients with mental illness.

505.25 Ambulatory care for recipients with mental illness. (a) Definitions.

(1) For the purposes of the Medical Assistance Program, ambulatory care for eligible recipients with mental illness means any arrangement or therapeutic environment for the delivery of medical care, health care, or services meeting the criteria set forth in sections 7.09, 7.15 and 31.04 and article 43 of the Mental Hygiene Law, as implemented by appropriate sections of 14 NYCRR Parts 579 and 585.

(2) All definitions specified in Parts 579 and 585 of 14 NYCRR apply to this section.

(b) Description of Medicaid-covered programs for ambulatory care for mental illness when currently certified by a valid operating certificate. (1) Clinic treatment programs provide a comprehensive array of services for mentally ill persons and collaterals, usually during visits of less than three hours. The frequency of visits, the duration of treatment, and the extent of services provided during a visit or during the course of treatment are variable, depending upon the identified needs of the patient. A clinic treatment program shall provide, but need not be limited to the following services:

(i) assessment and treatment planning services;

(ii) verbal therapies;

(iii) medication therapy;

(iv) crisis services; and

(v) case management services.

(2) Day treatment programs provide a comprehensive array of services for mentally ill persons and collaterals through the use of supervised, planned services and extensive patient-staff interaction. In general, the duration of a visit exceeds three hours, visits occur with regular frequency usually declining over the course of treatment, and more than one service is provided during a visit. Except for patients under the age of 18, the program is designed for patients who are expected to need day treatment services for a limited period. The average length of stay is expected to be six months or less. A day treatment program shall provide, but need not be limited to the following services:

(i) assessment and treatment planning services;

(ii) verbal therapies;

(iii) medication therapy;

(iv) crisis services;

(v) case management services;

(vi) social training;

(vii) task and skill training; and

(viii) socialization activities.

(3) Continuing treatment programs provide a comprehensive array of services for mentally ill persons and collaterals on a relatively longterm basis in a therapeutic environment through the use of supervised, planned services for the purpose of maintaining the patient in the community. In general, the duration of a visit exceeds three hours, visits occur with a regular frequency determined by the patient's condition, and more than one service is provided during a visit. The program is designed primarily for patients at least 18 years of age who are expected to require services for an extended period of time, usually exceeding six months. A continuing treatment program shall provide, but need not be limited to the following services:

(i) assessment and treatment planning services;

(ii) verbal therapies;

(iii) medication therapy;

(iv) crisis services;

(v) case management services;

(vi) social training;

(vii) task and skill training; and

(viii) socialization activities.

(c) Where programs for ambulatory care for mental illness shall be delivered.

(1) Programs for ambulatory care for mental illness shall be provided in a facility which is certified under article 31 of the Mental Hygiene Law and located in free-standing facilities, the outpatient departments of acute care hospitals, diagnostic and treatment centers, the outpatient departments of private or public psychiatric hospitals, or in county-sponsored community mental health facilities.

(2) Services may be delivered to a recipient in his home only when home visits are a component of the individual's service plan, prepared under the supervision of a physician and subject to periodic review and evaluation, in accordance with 14 NYCRR Parts 579 and 585.

(3) Crises services which are appropriately documented may be delivered in any setting and regardless of another reimbursable service delivered on the same date.

(d) Standards which shall be met by programs in order to bill under the Medical Assistance Program. (1) All programs must meet the standards set forth by 14 NYCRR Parts 579 and 585, as revised on April 1, 1991, by the addition of 14 NYCRR Parts 587 and 588.

(2) All services shall be delivered in accordance with a written individual treatment plan.

(3) All programs shall be authorized by a valid operating certificate issued to the faculty by the Office of Mental Health.

(4) Each facility, regardless of sponsorship, providing outpatient programs for the mentally ill shall establish a utilization review plan that is acceptable to the Office of Mental Health.

(5) All occasions of services billed as clinic visits shall reflect face-to-face interaction between recipient and appropriate personnel.

(e) Services coverable under the Medical Assistance Program. (1) Services required for ambulatory care for mental illness when certified by a physician to be medically necessary and appropriate, are covered services under the Medical Assistance Program.

(2) Except for crisis services, no more than one visit for mental health services per patient per day is reimbursable regardless of the number of mental health services provided or the number of mental health programs in which the recipient participates.

(3) Any service provided by a clinic, day or continuing treatment program to an eligible individual at a setting other than those listed in subdivision (c) of this section shall have the location identified in the treatment plan along with the justification of the need for such off-site services except in annotated emergency conditions.

(4) Collateral (as defined in 14 NYCRR 585.4(a)(3)) services may be provided to assist in the gathering of information for diagnosis and evaluation, to assure appropriate planning of care for the recipient, to ameliorate those factors of the home environment which interfere with treatment goals of the therapeutic setting, and to enhance the therapeutic environment by treatment continuation in the home. Such services shall be physician-approved and subject to utilization review procedures. An occasion of collateral service shall be billed against the primary patient's Medicaid identification card, and may occur on the same date as another service provided to the primary patient.

(5) All reimbursable billings shall only be for a documented, definable medical service of face-to-face professional exchange between provider and client, or collateral, in accordance with goals stated in the treatment plan.

(f) Noncovered services under the Medical Assistance Program. (1) Only covered services which are actually delivered to eligible recipients shall be reimbursed.

(2) The cost of routine physicians' services are included in facilities' rate or fee and shall not be billed separately.

(3) Educational services or patient education programs are not coverable, except that services may be utilized to meet the duration of visit requirements specified in subparagraph (h)(2)(ii) of this section.

(4) Sheltered workshop services are not coverable.

(5) Telephone contacts are not reimbursable.

(g) Payment. (1) Payment for ambulatory care to Medicaid recipients with mental illness in facilities licensed or operated by the Office of Mental Health shall be at rates or fees certified by the Commissioner of Mental Health and approved by the State Director of the Budget, except that payment for ambulatory mental health care provided in an outpatient department of an acute care hospital licensed pursuant to article 28 of the Public Health Law shall be at rates or fees certified by the Commissioner of the State Department of Health and approved by the State Director of the Budget.

(2) Payment for services to collaterals of Medicaid recipients shall be made in accordance with regulations of the Office of Mental Health and this department.

(3) Payment for ambulatory care to Medicaid recipients with mental illness who are in a residential health care facility shall not be made by the Department of Social Services. Payment shall be made to the provider of mental health services by the residential health care facility.

(4) Medications administered or dispensed in conjunction with ambulatory care programs are included in the rate or fee of the facility. A visit to monitor medication shall be paid as a brief clinic visit if on a date different from another service.

(h) Reimbursement. (1) State reimbursement shall be available for expenditures made in accordance with the provisions of this section and when the following conditions are met:

(i) documentation by a physician that treatment is appropriate and necessary;

(ii) documentation that at least one Medicaid reimbursable service has been delivered for each billable occasion of service;

(iii) services are provided by staff designated as appropriate by regulations of the Office of Mental Health;

(iv) except for crisis services, the location of service is documented in the recipient's record and off-site service is justified; and

(v) utilization review policies and procedures, acceptable to the Office of Mental Health, are operative.

(2) State reimbursement shall be available, at fees approved by the New York State Director of the Budget, for ambulatory care for eligible recipients with mental illness when billed according to the following structure:

(i) Clinic treatment programs. (a) A clinic treatment visit of at least 30 minutes shall be billed as a clinic visit.

(b) A clinic treatment visit, lasting at least 15 minutes but less than 30 minutes, shall be billed as a brief clinic visit.

(c) A clinic treatment visit, where only group therapy is provided and lasting at least 50 minutes, shall be billed as a clinic group visit.

(ii) Day treatment programs. (a) A day treatment visit, lasting at least five hours, shall be billed as a full-day treatment visit.

(b) A day treatment visit, lasting at least three hours but less than five hours, shall be billed as a half-day treatment visit.

(c) A day treatment visit, lasting for at least one hour but less than three hours, shall be billed as a brief day treatment visit. Such visits shall be clinically justified, documented, and used primarily to enable the recipient to participate in the program for longer periods of time.

(iii) Continuing treatment programs. (a) A continuing treatment visit, lasting at least five hours, shall be billed as a full continuing treatment visit.

(b) A continuing treatment visit, lasting at least three hours but less than five hours, shall be billed as a half continuing treatment visit.

(c) A continuing treatment visit, lasting for at least one hour but less than three hours, shall be billed as a brief continuing treatment visit. Such visits shall be clinically justified, documented, and used primarily to enable the recipient to participate in the program for longer periods of time.

(iv) No more than three visits per patient for assessment and treatment planning services shall be reimbursable for the period prior to each admission to the program.

(v) Consultations with collaterals, lasting at least 30 minutes, shall be billed as a collateral consultation.

(i) Fee schedule. Program Visits Duration Fee

(1) Clinic treatment: Regular at least 30 minutes $40

Brief at least 15 minutes 20 Group at least 50 minutes 14 Collateral at least 30 minutes 14 Home at least 30 minutes 40

(2) Day treatment: Full day at least 5 hours $36

Half day at least 3 hours but

less than 5 hours 18

Brief day at least 1 hour but

less than 3 hours 12

Collateral at least 30 minutes 12 Home at least 30 minutes 36

(3) Continuing treatment: Full day at least 5 hours 36

Half day at least 3 hours but

less than 5 hours 18

Brief day at least one hour but

less than 3 hours 12

Collateral at least 30 minutes 12 Home at least 30 minutes 36

(4) The effective date of this schedule shall be August 1, 1982.

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Section 505.26 - Chemical Dependence Outpatient Medically Supervised Withdrawal Services

505.26 Chemical Dependence Outpatient Medically Supervised Withdrawal Services

(a) Definitions.

(1) Chemical Dependence outpatient medically supervised withdrawal services means services provided under the supervision and direction of a licensed physician, and includes the medical supervision of persons meeting the admission criteria for outpatient medically supervised withdrawal services in section 19.07 of the Mental Hygiene Law, as implemented in Title 14 of the Codes, Rules and Regulations of New York State (14 NYCRR), Part 816.

(2) An occasion of service shall mean a chemical dependence outpatient medically supervised withdrawal service which meets the provisions of 14 NYCRR Part 816.

(3) All definitions as specified in 14 NYCRR Part 816 shall apply to this section except, if definitions specifically contained in this section are inconsistent with those contained in Part 816, this section shall apply.

(4) OASAS shall mean the Office of Alcoholism and Substance Abuse Services.

(b) Services covered under the Medical Assistance Program.

(1) Reimbursement shall be limited to one visit per day, per patient.

(2) A visit means one or more distinct and separate occasions of service provided on-site by an OASAS licensed provider to a patient.

(3) For purposes of this section, a patient shall mean an individual who is either admitted to a chemical dependence outpatient medically supervised withdrawal service or an individual being diagnosed or assessed to determine that individual’s need for such services.

(4) There shall be reimbursement only for visits that meet the following requirements:

(i) An occasion of service must be a face-to-face contact between a patient and treatment staff, which takes place at a site certified by OASAS.

(ii) An occasion of service must be a chemical dependence outpatient medically supervised withdrawal service provided pursuant to 14 NYCRR, Part 816.

(5) All occasions of service provided during a visit must be fully documented in the patient's treatment record.

(6) Services must be approved by the Medical Director or another physician employed by the program, recorded in the treatment plan of the patient, and may be subject to utilization review procedures.

(7) Reimbursement shall be limited to no more than two diagnosis and assessment threshold visits per patient for each admission to a chemical dependence outpatient medically supervised withdrawal service.

(c) The Medical Assistance Program does not cover the following:

(1) Visits to the premises of a chemical dependence outpatient medically supervised withdrawal service for the sole purpose of attending meetings of a self-help group that does not meet the definition of a group covered under 14 NYCRR Part 816;

(2) Any visits which include only companionship, recreation, and/or social activity;

(3) Treatment provided in a medically monitored withdrawal service; and

(4) Services provided in a facility that is not enrolled in the Medical Assistance Program pursuant to Title 11 of Article 5 of the Social Services Law and Title 18 NYCRR.

(d) Reimbursement.

(1) Payment for chemical dependence outpatient medically supervised withdrawal services shall be at fees established by the Department of Health and approved by the Director of the Division of the Budget as contained in the fee schedule for chemical dependence outpatient medically supervised withdrawal services.

(2) The fee schedule for chemical dependence outpatient medically supervised withdrawal services is available from the department and is also contained in the department’s MMIS Provider Manual (Clinic). Copies of the manual may be obtained by writing Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl St., Albany, New York 12243. Copies may also be obtained from the Department of Health, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12237. The manuals are provided free of charge to every provider of chemical dependence outpatient medically supervised services at the time of enrollment in the Medical Assistance program.

(3) Payment will be made under this subdivision only for services provided by a facility certified solely under Article 32 of the Mental Hygiene Law.

(e) Payment to chemical dependence outpatient medically supervised withdrawal service programs certified under Article 28 of the Public Health Law shall be at rates determined by the Department of Health for that particular facility.

Doc Status: 
Complete
Effective Date: 
Monday, December 2, 2002

Section 505.27 - Chemical Dependence Outpatient Services

505.27 - Chemical Dependence Outpatient Services

(a) Definitions. (1) Chemical Dependence outpatient services means services provided under the supervision and direction of a licensed physician, and includes the medical supervision of persons meeting the admission criteria for chemical dependence outpatient services in section 19.07 of the Mental Hygiene Law, as implemented in Title 14 of the Codes, Rules and Regulations of New York State (14 NYCRR), Part 822 or Part 823, as applicable.

(2) An occasion of service shall mean a chemical dependence service which meets the provisions of 14 NYCRR Part 822 or Part 823, as applicable.

(3) All definitions as specified in 14 NYCRR Part 822 or Part 823, as applicable, shall apply to this section except, if definitions specifically contained in this section are inconsistent with those contained in Parts 822 and 823, this section shall apply.

(4) OASAS shall mean the Office of Alcoholism and Substance Abuse Services.

(b) Services covered under the Medical Assistance Program.

(1) Reimbursement shall be limited to one visit per day, per patient.

(2) A visit means one or more distinct and separate occasions of service provided on-site by an OASAS licensed provider to a patient.

(3) For purposes of this section, a patient shall mean an individual who is admitted either to a chemical dependence outpatient service or an individual being diagnosed or assessed to determine that individual’s need for such services.

(4) There shall be reimbursement only for visits that meet the following requirements:

(i) An occasion of service must be a face-to-face contact between a patient and treatment staff, which takes place at a site certified by OASAS.

(ii) An occasion of service must be a chemical dependence outpatient service provided pursuant to 14 NYCRR Part 822 or Part 823, as applicable.

(5) All occasions of service provided during a visit must be documented in the patient’s treatment record.

(6) Services must be approved by the Medical Director or another physician employed by the program, recorded in the treatment plan of the patient, and may be subject to utilization review procedures.

(7) Reimbursement shall be limited to no more than two diagnosis and assessment visits per patient for each admission to a chemical dependence outpatient service.

(c) The Medical Assistance Program does not cover the following:

(1) Visits to the premises of a chemical dependence outpatient service for the sole purpose of attending meetings of a self-help group that does not meet the definition of a group covered under 14 NYCRR Part 822 or Part 823, as applicable;

(2) Any visits which include only companionship, recreation and/or social activity; and

(3) Services provided in a facility which is not enrolled in the Medical Assistance Program pursuant to Title 11 of Article 5 of the Social Services Law and Title 18 NYCRR.

(d) Reimbursement.

(1) Payment for chemical dependence outpatient services shall be at fees established by the Department of Health and approved by the Director of the Division of the Budget as contained in the fee schedule for chemical dependence outpatient services.

(2) The fee schedule for chemical dependence outpatient services is available from the department and is also contained in the department’s MMIS Provider Manual (Clinic). Copies of the manual may be obtained by writing Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl St., Albany, New York 12243. Copies may also be obtained from the Department of Health, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12237. The manuals are provided free of charge to every provider of chemical dependence outpatient services at the time of enrollment in the Medical Assistance program.

(3) Payment will be made under this subdivision only for services provided by a facility certified solely under Article 32 of the Mental Hygiene Law.

(e) Payment to chemical dependence outpatient programs certified under Article 28 of the Public Health Law for care to Medicaid recipients shall be at rates determined by the Department of Health for that particular facility.

Doc Status: 
Complete
Effective Date: 
Monday, December 2, 2002

Section 505.28 - Consumer directed personal assistance program

505.28 Consumer directed personal assistance program.

(a) Purpose. The consumer directed personal assistance program is intended to permit chronically ill or physically disabled individuals receiving home care services under the medical assistance program greater flexibility and freedom of choice in obtaining such services.

(b) Definitions. The following definitions apply to this section:

(1) "consumer" means a medical assistance recipient who a social services district has determined eligible to participate in the consumer directed personal assistance program.

(2) "consumer directed personal assistance" means the provision of assistance with personal care services, home health aide services and skilled nursing tasks by a consumer directed personal assistant under the instruction, supervision and direction of a consumer or the consumer's designated representative.

(3) "consumer directed personal assistant" means an adult who provides consumer directed personal assistance to a consumer under the consumer's instruction, supervision and direction or under the instruction, supervision and direction of the consumer's designated representative. A consumer's spouse, parent or designated representative may not be the consumer directed personal assistant for that consumer; however, a consumer directed personal assistant may include any other adult relative of the consumer who does not reside with the consumer or any other adult relative who resides with the consumer because the amount of care the consumer requires makes such relative's presence necessary.

(4) "continuous consumer directed personal assistance" means the provision of uninterrupted care, by more than one consumer directed personal assistant, for more than 16 hours in a calendar day for a consumer who, because of the consumer’s medical condition, needs assistance during such calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks, and needs assistance with such frequency that a live-in 24-hour consumer directed personal assistant would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(5) "designated representative" means an adult to whom a self-directing consumer has delegated authority to instruct, supervise and direct the consumer directed personal assistant and to perform the consumer's responsibilities specified in subdivision (g) of this section and who is willing and able to perform these responsibilities. With respect to a non self-directing consumer, a "designated representative" means the consumer's parent, legal guardian or, subject to the social services district's approval, a responsible adult surrogate who is willing and able to perform such responsibilities on the consumer's behalf. The designated representative may not be the consumer directed personal assistant or a fiscal intermediary employee, representative or affiliated person.

(6) "fiscal intermediary" means an entity that has a contract with a social services district to provide wage and benefit processing for consumer directed personal assistants and other fiscal intermediary responsibilities specified in subdivision (i) of this section.

(7) "home health aide services" means services within the scope of practice of a home health aide pursuant to Article 36 of the Public Health Law including simple health care tasks, personal hygiene services, housekeeping tasks essential to the consumer's health and other related supportive services. Such services may include, but are not necessarily limited to, the following: preparation of meals in accordance with modified diets or complex modified diets; administration of medications; provision of special skin care; use of medical equipment, supplies and devices; change of dressing to stable surface wounds; performance of simple measurements and tests to routinely monitor the consumer's medical condition; performance of a maintenance exercise program; and care of an ostomy after the ostomy has achieved its normal function.

(8) "personal care services" means the nutritional and environmental support functions, personal care functions, or both such functions, that are specified in Section 505.14(a)(5) of this Part except that, for individuals whose needs are limited to nutritional and environmental support functions, personal care services shall not exceed eight hours per week.

(9) a "self-directing consumer" means a consumer who is capable of making choices regarding the consumer's activities of daily living and the type, quality and management of his or her consumer directed personal assistance; understands the impact of these choices; and assumes responsibility for the results of these choices.

(10) "skilled nursing tasks" means those skilled nursing tasks that are within the scope of practice of a registered professional nurse or a licensed practical nurse and that a consumer directed personal assistant may perform pursuant to Section 6908 of the Education Law.

(11) "stable medical condition" means a condition that is not expected to exhibit sudden deterioration or improvement and does not require frequent medical or nursing evaluation or judgment to determine changes in the consumer's plan of care.

(12) live-in 24-hour consumer directed personal assistance means the provision of care by one consumer directed personal assistant for a consumer who, because of the consumer’s medical condition, needs assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks and whose need for assistance is sufficiently infrequent that a live-in 24-hour consumer directed personal assistant would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(c) Eligibility requirements. To participate in the consumer directed personal assistance program, an individual must meet the following eligibility requirements:

(1) be eligible for medical assistance;

(2) be eligible for long term care and services provided by a certified home health agency, long term home health care program or an AIDS home care program authorized pursuant to Article 36 of the Public Health Law; or for personal care services or private duty nursing services;

(3) have a stable medical condition;

(4) be self-directing or, if non self-directing, have a designated representative;

(5) need assistance with one or more personal care services, home health aide services or skilled nursing tasks;

(6) be willing and able to fulfill the consumer's responsibilities specified in subdivision (g) of this section or have a designated representative who is willing and able to fulfill such responsibilities; and

(7) participate as needed, or have a designated representative who so participates, in the required assessment and reassessment processes specified in subdivisions (d) and (f) of this section.

(d) Assessment process. When the social services district receives a request to participate in the consumer directed personal assistance program, the social service district must assess whether the individual is eligible for the program. The assessment process includes a physician's order, a social assessment and a nursing assessment and, when required under paragraph (5) of this subdivision, a referral to the local professional director or designee.

(1) Physician's order. (i) A physician licensed in accordance with article 131 of the Education Law, a physician assistant or a specialist assistant registered in accordance with article 131-B of the Education Law or a nurse practitioner certified in accordance with article 139 of the Education Law must conduct a medical examination of the individual and complete the physician's order within 30 calendar days after conducting the medical examination.

(ii) The physician's order must be completed on a form that the department requires or approves. The physician or other medical professional who conducted the examination must complete the order form by accurately describing the individual's medical condition and regimens, including any medication regimens; the individual's need for assistance with personal care services, home health aide services and skilled nursing tasks; and provide only such other information as the physician's order form requires. The physician or other medical professional who completes the order form must not recommend the number of hours of services that the individual should be authorized to receive.

(iii) A physician must sign the physician's order form and certify that the individual can be safely cared for at home and that the information provided in the physician's order form accurately describes the individual's medical condition and regimens, including any medication regimens, and the individual's need for assistance at the time of the medical examination.

(iv) The physician's order form must be submitted to the social services district within 30 calendar days after the medical examination. The form may be submitted by the physician, other medical professional or by the individual or the individual's representative.

(v) The physician's order form is subject to the provisions of Parts 515, 516, 517 and 518 of this article, which permit the department to impose monetary penalties on, or sanction and recover overpayments from, providers and prescribers of medical care, services or supplies when medical care, services or supplies that are unnecessary, improper or exceed recipients' documented needs are provided or ordered.

(2) Social assessment. Upon receipt of a completed and signed physician's order, social services district professional staff must conduct a social assessment. The social assessment must include the following:

(i) a discussion with the individual or, if applicable, the individual's designated representative to determine the individual's perception of his or her circumstances and preferences;

(ii) an evaluation of the individual's ability and willingness to fulfill the consumer's responsibilities specified in subdivision (g) of this section and, if applicable, the ability and willingness of the individual's designated representative to assume these responsibilities;

(iii) an evaluation of the potential contribution of informal supports, such as family members or friends, to the individual's care, which must consider the number and kind of informal supports available to the individual; the ability and motivation of informal supports to assist in care; the extent of informal supports' potential involvement; the availability of informal supports for future assistance; and the acceptability to the individual of the informal supports' involvement in his or her care;

(iv) for cases involving continuous consumer directed personal assistance or live-in 24-hour consumer directed personal assistance, the social assessment shall demonstrate that all alternative arrangements for meeting the individual’s medical needs have been explored and are infeasible including, but not limited to, the provision of consumer directed personal assistance in combination with other formal services or in combination with voluntary contributions of informal caregivers; and

(v) for cases involving live-in 24-hour consumer directed personal assistance, an evaluation whether the consumer’s home has sleeping accommodations for a consumer directed personal assistant. When the consumer’s home has no sleeping accommodations for a consumer directed personal assistant, continuous consumer directed personal assistance must be authorized for the consumer; however, should the consumer’s circumstances change and sleeping accommodations for a consumer directed personal assistant become available in the consumer’s home, the district must promptly review the case. If a reduction of the consumer’s continuous consumer directed personal assistance to live-in 24-hour consumer directed personal assistance is appropriate, the district must send the consumer a timely and adequate notice of the proposed reduction.

(3) Nursing assessment. Upon receipt of a completed and signed physician's order, the social services district must conduct or obtain a nursing assessment.

(i) The nursing assessment must be completed by a registered professional nurse who is employed by, or under contract with, the social services district or by a licensed or certified home care services agency or voluntary or proprietary agency under contract with the district.

(ii) The nursing assessment must include the following:

(a) a review and interpretation of the physician's order;

(b) the primary diagnosis code from the ICD-9-CM;

(c) an evaluation whether the individual's medical condition, as described in the physician's order, would require frequent nursing evaluation or judgment;

(d) an evaluation of the personal care services, home health aide services and skilled nursing tasks that the individual requires;

(e) an evaluation, made in conjunction with the social assessment and physician's order, whether the individual or, if applicable, the individual's designated representative, is self-directing and willing and able to instruct, supervise and direct the consumer directed personal assistant in performing any needed skilled nursing tasks, home health aide services and personal care services;

(f) an evaluation whether the individual's need for assistance can be totally or partially met through the use of adaptive or specialized medical equipment or supplies including, but not limited to, commodes, urinals, adult diapers, walkers or wheelchairs and whether the individual would be appropriate for personal emergency response services provided in accordance with section 505.33 of this part;

(g) for continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance cases, documentation of the following:

(1) whether the physician’s order has documented a medical condition that causes the consumer to need frequent assistance during a calendar day with toileting, walking, transferring, turning and positioning, feeding, home health aide services, or skilled nursing tasks;

(2) the specific functions or tasks with which the consumer requires frequent assistance during a calendar day;

(3) the frequency at which the consumer requires assistance with these functions or tasks during a calendar day;

(4) whether the consumer requires similar assistance with these functions or tasks during the consumer’s waking and sleeping hours and, if not, why not; and

(5) whether, were live-in 24-hour consumer directed personal assistance to be authorized, the consumer directed personal assistant would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep.

(h) development of a plan of care in collaboration with the individual or, if applicable, the individual’s designated representative, that identifies the personal care services, home health aide services and skilled nursing tasks with which the individual needs assistance in the home and a recommendation for the number of hours or frequency of such assistance; and

(i) recommendations for authorization of services.

(4) Guidelines for completion of social and nursing assessment. The social services district must conduct the social assessment and conduct or obtain a nursing assessment with reasonable promptness, generally not to exceed 30 calendar days after receiving a completed and signed physician's order, except in unusual circumstances including, but not limited to, when the individual or, if applicable, the individual's designated representative has failed to participate as needed in the assessment process.

(5) Local professional director review.

(i) If there is a disagreement among the physician’s order, the nursing assessment and the social assessment, or a question regarding the amount or duration of services to be authorized, or if the case involves continuous consumer directed personal assistance or live-in 24-hour consumer directed personal assistance, an independent medical review of the case must be completed by the local professional director, a physician designated by the local professional director or a physician under contract with the social services district.

(ii) The local professional director or designee must review the physician’s order and the nursing and social assessments. When determining whether continuous consumer directed personal assistance or live-in 24-hour consumer directed personal assistance should be authorized, the local professional director or designee must consider the information in the social and nursing assessments. The local professional director or designee may consult with the consumer’s treating physician and may conduct an additional assessment of the consumer in the home.

(iii) The local professional director or designee is responsible for the final determination regarding the amount and duration of services to be authorized. The final determination must be made with reasonable promptness, generally not to exceed seven business days after receipt of the physician’s order and the completed social and nursing assessments, except in unusual circumstances including, but not limited to, the need to resolve any outstanding questions regarding the amount or duration of services to be authorized.

(e) Authorization process. (1)(i) When the social services district determines pursuant to the assessment process that the individual is eligible to participate in the consumer directed personal assistance program, the district must authorize consumer directed personal assistance according to the consumer's plan of care. The district must not authorize consumer directed personal assistance unless it reasonably expects that such assistance can maintain the individual's health and safety in the home or other setting in which consumer directed personal assistance may be provided.

(ii) Consumer directed personal assistance, including continuous consumer directed personal assistance and live-in 24-hour consumer directed personal assistance, shall not be authorized to the extent that the consumer’s need for assistance can be met by the following:

(a) voluntary assistance available from informal caregivers including, but not limited to, the consumer’s family, friends or other responsible adult;

(b) formal services provided or funded by an entity, agency or program other than the medical assistance program; or

(c) adaptive or specialized equipment or supplies including, but not limited to, bedside commodes, urinals, walkers, and wheelchairs, when such equipment or supplies can be provided safely and cost-effectively.

(iii) The social services district must first determine whether the consumer, because of the consumer’s medical condition, would be otherwise eligible for consumer directed personal assistance, including continuous consumer directed personal assistance or live-in 24-hour consumer directed personal assistance. For consumers who would be otherwise eligible for consumer directed personal assistance, the district must then determine whether, and the extent to which, the consumer’s need for assistance can be met by voluntary assistance from informal caregivers, by formal services, or by adaptive or specialized equipment or supplies, as specified in clauses (ii)(a) through (ii)(c) of this paragraph.

(2) The district may authorize only the hours or frequency of services that the consumer actually requires to maintain his or her health and safety in the home. The authorization must be completed prior to the initiation of services.

(3) The duration of the authorization period must be based upon the consumer's needs as reflected in the required assessments. In determining the authorization period, the social services district must consider the consumer's prognosis and potential for recovery and the expected duration and availability of any informal supports identified in the plan of care.

(4) No authorization may exceed six months unless the social services district has requested, and the department has approved, authorization periods of up to twelve months. The department may approve district requests for authorization periods of up to twelve months provided that professional staff of the social services district or its designee conduct a home visit with the consumer and, if applicable, the consumer's designated representative every six months and evaluate whether:

(i) the plan of care continues to meet the consumer's needs;

(ii) the consumer or, if applicable, the consumer's designated representative continues to be willing and able to perform the consumer's responsibilities specified in subdivision (g) of this section; and

(iii) the fiscal intermediary is fulfilling its responsibilities specified in subdivision (i) of this section.

(5) The social services district must provide the consumer with a copy of the plan of care that specifies the consumer directed personal assistance that the district has authorized the consumer to receive and the number of hours per day or week of such assistance.

(6) Nothing in this subdivision precludes the provision of the consumer directed personal assistance program in combination with other services when a combination of services can appropriately and adequately meet the consumer's needs; provided, however, that no duplication of Medicaid-funded services would result.

(f) Reassessment and reauthorization processes. (1) Prior to the end of the authorization period, the social services district must reassess the consumer's continued eligibility for the consumer directed personal assistance program in accordance with the assessment process set forth in subdivision (d) of this section.

(i) The reassessment must evaluate whether the consumer or, if applicable, the consumer's designated representative satisfactorily fulfilled the consumer's responsibilities under the consumer directed personal assistance program. The social services district must consider whether the consumer or, if applicable, the consumer's designated representative has failed to satisfactorily fulfill the consumer's responsibilities when determining whether the consumer should be reauthorized for the consumer directed personal assistance program.

(ii) When the social services district determines, pursuant to the reassessment process, that the consumer is eligible to continue to participate in the consumer directed personal assistance program, the district must reauthorize consumer directed personal assistance in accordance with the authorization process specified in subdivision (e) of this section. When the district determines that the consumer is no longer eligible to continue to participate in the consumer directed personal assistance program, the district must send the consumer, and such consumer's designated representative, if any, a timely and adequate notice under Part 358 of this chapter of the district's intent to discontinue consumer directed personal assistance on forms required by the department.

(2) The social services district must reassess the consumer when an unexpected change in the consumer's social circumstances, mental status or medical condition occurs during the authorization or reauthorization period that would affect the type, amount or frequency of consumer directed personal assistance provided during such period. The district is responsible for making necessary changes in the authorization or reauthorization on a timely basis in accordance with the following procedures:

(i) When the change in the consumer's service needs results solely from an unexpected change in the consumer's social circumstances including, but not limited to, loss or withdrawal of informal supports or a designated representative, the social services district must review the social assessment, document the consumer's changed social circumstances and make changes in the authorization or reauthorization as needed. A new physician's order and nursing assessment are not required; or

(ii) When the change in the consumer's service needs results from a change in the consumer's medical condition, including loss of the consumer's ability to instruct, supervise or direct the consumer directed personal assistant, the social services district must obtain a new physician's order, social assessment and nursing assessment.

(g) Consumer responsibilities. A consumer or, if applicable, the consumer's designated representative has the following responsibilities under the consumer directed personal assistance program:

(1) managing the plan of care including recruiting and hiring a sufficient number of individuals who meet the definition of consumer directed personal assistant, as set forth in subdivision (b) of this section, to provide authorized services that are included on the consumer's plan of care; training, supervising and scheduling each assistant; terminating the assistant's employment; and assuring that each consumer directed personal assistant competently and safely performs the personal care services, home health aide services and skilled nursing tasks that are included on the consumer's plan of care;

(2) timely notifying the social services district of any changes in the consumer's medical condition or social circumstances including, but not limited to, any hospitalization of the consumer or change in the consumer's address, telephone number or employment;

(3) timely notifying the fiscal intermediary of any changes in the employment status of each consumer directed personal assistant;

(4) attesting to the accuracy of each consumer directed personal assistant's time sheets;

(5) transmitting the consumer directed personal assistant's time sheets to the fiscal intermediary according to its procedures;

(6) timely distributing each consumer directed personal assistant's paycheck, if needed;

(7) arranging and scheduling substitute coverage when a consumer directed personal assistant is temporarily unavailable for any reason; and

(8) entering into a department approved memorandum of understanding with the fiscal intermediary and with the social services district that describes the parties' responsibilities under the consumer directed personal assistance program.

(h) Social services district responsibilities. Social services districts have the following responsibilities with respect to the consumer directed personal assistance program:

(1) annually notifying recipients of personal care services, long term home health care program services, AIDS home care program services or private duty nursing services of the availability of the consumer directed personal assistance program and affording them the opportunity to apply for the program;

(2) complying with the assessment, authorization, reassessment and reauthorization procedures specified in subdivisions (d) through (f) of this section;

(3) receiving and promptly reviewing, the fiscal intermediary's notification to the district pursuant to subparagraph (i)(1)(v) of this section of any circumstances that may affect the consumer's or, if applicable, the consumer's designated representative's ability to fulfill the consumer's responsibilities under the program and making changes in the consumer's authorization or reauthorization as needed;

(4) discontinuing, after timely and adequate notice in accordance with part 358 of this chapter, the consumer's participation in the consumer directed personal assistance program and making referrals to other services that the consumer may require when the district determines that the consumer or, if applicable, the consumer's designated representative is no longer able to fulfill the consumer's responsibilities under the program or no longer desires to continue in the program;

(5) notifying consumers, on forms required by the department, of the district's decision to authorize, reauthorize, increase, reduce, discontinue or deny services under the consumer directed personal assistance program, and of the consumer's right to request a fair hearing pursuant to part 358 of this chapter. The social services district’s decision to deny, reduce or discontinue consumer directed personal assistance must be stated in the notice.

(i) Appropriate reasons and notice language to be used when denying consumer directed personal assistance include but are not limited to the following:

(a) the consumer’s health and safety cannot be assured with the provision of consumer directed personal assistance. The notice must identify the reason or reasons that the consumer’s health and safety cannot be assured with the provision of such assistance;

(b) the consumer’s medical condition is not stable. The notice must identify the consumer’s medical condition that is not stable;

(c) the consumer is not self-directing and has no designated representative to assume those responsibilities;

(d) the consumer refused to cooperate in the required assessment;

(e) a technological development, which the notice must identify, renders certain services unnecessary or less time-consuming;

(f) the consumer resides in a facility or participates in another program or receives other services, which the notice must identify, which are responsible for the provision of needed assistance; and

(g) the consumer or, if applicable, the consumer’s designated representative is unable or unwilling to fulfill the consumer’s responsibilities under the program.

(ii) Appropriate reasons and notice language to be used when reducing or discontinuing consumer directed personal assistance include but are not limited to the following:

(a) the consumer’s medical or mental condition or economic or social circumstances have changed and the district determines that the consumer directed personal assistance provided under the last authorization or reauthorization are no longer appropriate or can be provided in fewer hours. For proposed discontinuances, this includes but is not limited to cases in which: the consumer’s health and safety can no longer be assured with the provision of consumer directed personal assistance; the consumer’s medical condition is no longer stable; or the consumer is no longer self-directing and has no designated representative to assume those responsibilities. The notice must identify the specific change in the consumer’s medical or mental condition or economic or social circumstances from the last authorization or reauthorization and state why the assistance should be reduced or discontinued as a result of the change;

(b) a mistake occurred in the previous authorization or reauthorization for consumer directed personal assistance. The notice must identify the specific mistake that occurred in the previous authorization or reauthorization and state why the prior assistance is not needed as a result of the mistake;

(c) the consumer refused to cooperate in the required reassessment;

(d) a technological development, which the notice must identify, renders certain assistance unnecessary or less time-consuming;

(e) the consumer resides in a facility or participates in another program or receives other services, which the notice must identify, which are responsible for the provision of needed assistance; and

(f) the consumer or, if applicable, the consumer’s designated representative is no longer able or willing to fulfill the consumer’s responsibilities under the program or the consumer no longer desires to continue in the program.

(6) maintaining current case records on each consumer and making such records available, upon request, to the department or the department's designee;

(7) entering into contracts with each fiscal intermediary for the provision of fiscal intermediary responsibilities specified in subdivision (i) of this section and monitoring the fiscal intermediary's performance under the contract, including reviewing the fiscal intermediary's administrative and personnel policies and recordkeeping relating to the provision of consumer directed personal assistance program services and evaluating the quality of services that the fiscal intermediary provides; and

(8) entering into a department approved memorandum of understanding with the consumer that describes the parties' responsibilities under the consumer directed personal assistance program.

(i) Fiscal intermediary responsibilities. (1) Fiscal intermediaries have the following responsibilities with respect to the consumer directed personal assistance program:

(i) processing each consumer directed personal assistant's wages and benefits including establishing the amount of each assistant's wages; processing all income tax and other required wage withholdings; and complying with worker's compensation, disability and unemployment insurance requirements;

(ii) ensuring that the health status of each consumer directed personal assistant is assessed prior to service delivery pursuant to 10 NYCRR § 766.11(c) and (d) or any successor regulation;

(iii) maintaining personnel records for each consumer directed personal assistant, including time sheets and other documentation needed for wages and benefit processing and a copy of the medical documentation required pursuant to 10 NYCRR § 766.11(c) and (d) or any successor regulation;

(iv) maintaining records for each consumer including copies of the social services district's authorization or reauthorization;

(v) monitoring the consumer's or, if applicable, the consumer's designated representative's continuing ability to fulfill the consumer's responsibilities under the program and promptly notifying the social services district of any circumstance that may affect the consumer's or, if applicable, the consumer's designated representative's ability to fulfill such responsibilities;

(vi) complying with the department's regulations at 18 NYCRR § 504.3, or any successor regulation, that specify the responsibilities of providers enrolled in the medical assistance program;

(vii) entering into a contract with the social services district for the provision of fiscal intermediary services; and

(viii) entering into a department approved memorandum of understanding with the consumer that describes the parties' responsibilities under the consumer directed personal assistance program.

(2) Fiscal intermediaries are not responsible for fulfilling responsibilities of the consumer or, if applicable, the consumer's designated representative. Nothing in this section shall diminish, however, the fiscal intermediary's failure to exercise reasonable care in properly carrying out its responsibilities under the program.

(j) Payment. (1) The department will pay fiscal intermediaries that are enrolled as Medicaid providers and have contracts with social services districts for the provision of consumer directed personal assistance services at rates that the department establishes and that the Director of the Division of the Budget approves, except as provided in paragraph (2) of this subdivision.

(2) A social services district may submit a written request to the department to use an alternative payment methodology. The request must describe the alternative payment methodology that the district will use to determine payments to fiscal intermediaries for consumer directed personal assistance services and include such other information as the department may require. The department may grant a district's exemption request when it determines that the alternative payment methodology is based on the fiscal intermediary's allowable costs of providing consumer directed personal assistance services and includes an adjustment for inflationary increases in the fiscal intermediary's costs of doing business.

(3) No payment to the fiscal intermediary will be made for authorized services unless the fiscal intermediary's claim is supported by documentation of the time spent in provision of services for each consumer.

(k) This subdivision sets forth expedited procedures for social services districts’ determinations of medical assistance (“Medicaid”) eligibility and consumer directed personal assistance eligibility for Medicaid applicants with an immediate need for consumer directed personal assistance.

(1) The following definitions apply to this subdivision:

(i) A Medicaid applicant with an immediate need for consumer directed personal assistance means an individual seeking Medicaid coverage who:

(a)(1) is not currently authorized for Medicaid coverage; or

(2) is currently authorized for Medicaid coverage only for community-based coverage without long-term care services; and

(b) provides to the social services district:

(1) a physician’s order for consumer directed personal assistance; and

(2) a signed attestation on a form required by the Department that the applicant has an immediate need for consumer directed personal assistance (“attestation of immediate need”) and that:

(i) no voluntary informal caregivers are available, able, and willing to provide or continue to provide needed assistance to the applicant;

(ii) no home care services agency is providing needed assistance to the applicant;

(iii) adaptive or specialized equipment or supplies including but not limited to bedside commodes, urinals, walkers, or wheelchairs, are not in use to meet, or cannot meet, the applicant’s need for assistance; and

(iv) third party insurance or Medicare benefits are not available to pay for needed assistance.

(ii) A complete Medicaid application means a signed Medicaid application and all documentation necessary for the social services district to determine the applicant’s Medicaid eligibility. For purposes of this subdivision, an applicant who would otherwise be required to document accumulated resources may attest to the current value of any real property and to the current dollar amount of any bank accounts. After the determination of Medicaid eligibility, if the commissioner or the district has information indicating an inconsistency between the value or dollar amount of such resources and the value or dollar amount to which the applicant had attested prior to being determined eligible for Medicaid, and the inconsistency is material to the individual’s Medicaid eligibility, the district must request documentation adequate to verify such resources.

(2) The social services district must determine whether the applicant has submitted a complete Medicaid application. If the applicant has not submitted a complete Medicaid application, the district must notify the applicant of the additional documentation that the applicant must provide and the date by which the applicant must provide such documentation.

(i) When the applicant submits the Medicaid application together with the physician’s order and the signed attestation of immediate need, the district must provide such notice as soon as possible and no later than four calendar days after receipt of these documents.

(ii) When the applicant submits the Medicaid application and subsequently submits the physician’s order, the signed attestation of immediate need, or both such documents, the district must provide such notice as soon as possible and no later than four calendar days after receipt of both the physician’s order and the signed attestation of immediate need.

(3) As soon as possible after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for consumer directed personal assistance, but no later than seven calendar days after receipt of a complete Medicaid application from such an applicant, the social services district must determine whether the applicant is eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and notify the applicant of such determination.

(4) As soon as possible after receipt of a complete Medicaid application from a Medicaid applicant with an immediate need for consumer directed personal assistance, but no later than twelve calendar days after receipt of a complete Medicaid application from such an applicant, the social services district must:

(i) obtain or complete a social assessment and a nursing assessment pursuant to paragraphs (d)(2) and (d)(3) of this subdivision; and

(ii) determine whether the applicant, if determined eligible for Medicaid, would be eligible for consumer directed personal assistance and, if so, the amount and duration of the consumer directed personal assistance that would be authorized should the applicant be determined eligible for Medicaid; provided, however, that consumer directed personal assistance shall be authorized only for applicants who are determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services. In no event shall consumer directed personal assistance be authorized for a Medicaid applicant unless the applicant has been determined eligible for Medicaid, including Medicaid coverage of community-based long-term care services.

(5) Social services districts must provide Medicaid applicants with the required attestation of immediate need form and such other information regarding the expedited Medicaid eligibility determination and consumer directed personal assistance assessment procedures set forth in this subdivision as the Department may require.

(l) This subdivision sets forth expedited consumer directed personal assistance assessment procedures for medical assistance (“Medicaid”) recipients with an immediate need for consumer directed personal assistance.

(1) A Medicaid recipient with an immediate need for consumer directed personal assistance means an individual seeking consumer directed personal assistance who:

(i)(a) is exempt or excluded from enrollment in a managed long term care plan operating pursuant to Section 4403-f of the Public Health Law or a managed care provider operating pursuant to Section 364-j of the Social Services Law; or

(b) is not exempt or excluded from enrollment in a plan or provider described in clause (i)(a) but is not yet enrolled in any such plan or provider; and

(ii)(a) was a Medicaid applicant with an immediate need for consumer directed personal assistance pursuant to subdivision (k) of this section who was determined, pursuant to such subdivision, to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and who was also determined pursuant to such subdivision to be eligible for consumer directed personal assistance; or

(b) is a Medicaid recipient who has been determined to be eligible for Medicaid, including Medicaid coverage of community-based long-term care services, and who provides to the social services district:

(1) a physician’s order for consumer directed personal assistance; and

(2) a signed attestation on a form required by the Department that the recipient has an immediate need for consumer directed personal assistance (“attestation of immediate need”) and that:

(i) no voluntary informal caregivers are available, able, and willing to provide or continue to provide needed assistance to the recipient;

(ii) no home care services agency is providing needed assistance to the recipient;

(iii) adaptive or specialized equipment or supplies including but not limited to bedside commodes, urinals, walkers, or wheelchairs, are not in use to meet, or cannot meet, the recipient’s need for assistance; and

(iv) third party insurance or Medicare benefits are not available to pay for needed assistance.

(2) With regard to a Medicaid recipient with an immediate need for consumer directed personal assistance who is described in clause (1)(ii)(a) of this subdivision, the social services district must promptly notify the recipient of the amount and duration of consumer directed personal assistance to be authorized and issue an authorization for, and arrange for the provision of, such consumer directed personal assistance, which must be provided as expeditiously as possible. With respect to those recipients who are neither exempt nor excluded from enrollment in a managed long term care plan or managed care provider, the district must authorize consumer directed personal assistance to be provided until such recipients are enrolled in such a plan or provider.

(3)(i) With regard to a Medicaid recipient with an immediate need for consumer directed personal assistance who is described in clause (1)(ii)(b) of this subdivision, the social services district, as soon as possible after receipt of the physician’s order and signed attestation of immediate need, but no later than twelve calendar days after receipt of such documentation, must:

(a) obtain or complete a social assessment and a nursing assessment pursuant to paragraphs (d)(2) and (d)(3) of this subdivision; and

(b) determine whether the recipient is eligible for consumer directed personal assistance and, if so, the amount and duration of consumer directed personal assistance to be authorized.

(ii) The social services district must promptly notify the recipient of the amount and duration of consumer directed personal assistance to be authorized and issue an authorization for, and arrange for the provision of, such consumer directed personal assistance, which must be provided as expeditiously as possible. With regard to those recipients who are neither exempt nor excluded from enrollment in a managed long term care plan or managed care provider, the district must authorize consumer directed personal assistance to be provided until such recipients are enrolled in such a plan or provider.

(4) Social services districts must provide Medicaid recipients with the required attestation of immediate need form and such other information regarding the expedited consumer directed personal assistance assessment procedures set forth in this subdivision as the Department may require.
 

Doc Status: 
Complete
Effective Date: 
Wednesday, July 6, 2016
Statutory Authority: 
Social Services Law, Section 365-f

Section 505.29 - Foster family care demonstration programs.

505.29 Foster family care demonstration programs. (a) Definitions.

(1) Foster family care is assistance with personal hygiene, dressing, and feeding and the performance of tasks essential to the maintenance of a foster family care recipient's health and safety within a foster family care home which is ordered by a physician, provided in accordance with a plan of care, and supervised by a registered professional nurse.

(2) A foster family caregiver is a person who provides the following services in his or her home to one or two foster family care recipients pursuant to an admission agreement with a sponsoring agency and the standards set forth in this section: room and board; supervision of, or assistance with, activities of daily living; and personal care and other related services which are necessary to maintain the recipient in the community.

(3) A foster family care demonstration program is a demonstration program the purpose of which is to determine whether foster family care is an appropriate alternative to institutional placement for elderly or disabled persons who lack the homes, the resources, or the family support to live in the community.

(4) A respite caregiver is a person who provides foster family care for up to 21 days per year, as determined by the sponsoring agency, as a substitute for a foster family caregiver.

(5) A sponsoring agency is a general hospital, a residential health care facility (RHCF), a certified home health agency, a long-term home health care program, or a social services district which administers a foster family care demonstration program.

(b) Contracts and agreements. (1) Contract. The sponsoring agency, other than a sponsoring agency which is a social services district, must have a written contract with the social services district. A sponsoring agency which is a social services district must have a written contract with the department. The contract must specify the parties' functions and responsibilities, include provisions governing the contract's renewal and termination prior to expiration, and include all reimbursement provisions and any other provisions the department may require. The contract's term must not exceed one year, and the contract may be renewed for additional one year terms with the department's approval. The contract must provide that either party may terminate the contract only upon 60 calendar days written notice to the other party. The social services district must submit the contract to the department for its review and must not implement the contract until the department has approved it. The department will approve or disapprove the contract in writing within 60 business days after it receives the contract.

(2) Admission agreement. The sponsoring agency, the foster family care recipient, and the foster family caregiver must execute a written admission agreement at or prior to the recipient's admission to the foster family care demonstration program. The agreement must be printed in legible and easily read type and include the following provisions:

(i) the date the recipient is admitted to the foster family care demonstration program, which will also be the agreement's effective date;

(ii) a description of any payments the sponsoring agency or recipient must make to the foster family caregiver;

(iii) a description of the personal fund accounting services the foster family caregiver will provide for the recipient;

(iv) a statement that the recipient may terminate the admission agreement at any time;

(v) a description of the conditions under which the foster family caregiver or sponsoring agency may terminate the admission agreement;

(vi) a statement that the foster family caregiver or sponsoring agency may terminate the agreement only upon 60 calendar days' written notice to each of the other parties to the agreement, except in an emergency as determined by the social services district; and

(vii) a statement that the sponsoring agency must notify the social services district when the admission agreement is terminated and assist the district to make alternative arrangements for a recipient who continues to be eligible for medical assistance (MA).

(c) Sponsoring agency responsibilities. The sponsoring agency is responsible for the following general activities:

(1) recruiting persons who meet eligibility requirements for the receipt of foster family care services, as specified in subdivision (d) of this section;

(2) participating in the authorization process for foster family care services by obtaining a physician's order and completing a nursing assessment and a social assessment and recommending to the social services district whether a person is appropriate for the foster family care demonstration program, as specified in subdivision (e) of this section;

(3) providing, or arranging for the provision of, nursing supervision, as specified in subdivision (f) of this section;

(4) performing case management services, including assisting the social services district to make alternative arrangements for a foster family care recipient whose admission agreement is terminated, as specified in subdivision (g) of this section;

(5) recruiting foster family caregivers and respite caregivers who meet the qualifications specified in subdivision (h) of this section;

(6) reviewing applications from prospective foster family caregivers and respite caregivers, as specified in subdivision (i) of this section;

(7) training foster family caregivers and respite caregivers, or arranging for them to be trained, in accordance with subdivision (j) of this section;

(8) terminating a foster family caregiver's or a respite caregiver's authority to provide foster family care services when he or she fails to comply with the requirements of this section;

(9) compiling statistical data regarding recipients, foster family caregivers, and respite caregivers and forwarding such data to the department at such times as the department may require and on a form the department approves; and

(10) for a sponsoring agency that is not a social services district, maintaining sufficient insurance coverage to protect the social services district from liability claims resulting from personal injury to recipients, foster family caregivers, respite caregivers, or other occupants of the foster family care home which result from acts, omissions, or negligence of sponsoring agency personnel.

(d) Eligibility for foster family care services. (1) Subject to paragraph (2) of this subdivision, a person must meet the following requirements to be eligible to participate in a foster family care demonstration program:

(i) be eligible for MA;

(ii) be at least 65 years old or disabled and at least 18 years old;

(iii) be medically eligible for RHCF services or personal care services; and

(iv) have been determined by the sponsoring agency to be capable of being cared for in the community if a suitable home environment and medical support services are provided and to lack a home, the resources, or the family support to live in the community.

(2) A person is not eligible to participate in a foster family care demonstration program if he or she meets any of the following characteristics:

(i) has a chronically unstable medical condition, which is a condition that exhibits, or may exhibit, sudden deterioration or improvement and requires frequent medical or nursing judgment to determine changes in the person's plan of care;

(ii) has a serious and persistent mental disability which manifests as gross confusion or nocturnal wandering;

(iii) requires medical or mental health services which cannot be provided safely and effectively by the foster family caregiver;

(iv) repeatedly behaves in a manner which causes or may reasonably be expected to cause a danger to the recipient or to other occupants of the foster family care home or which interferes with the foster family caregiver's operation of the home;
(v) refuses or is unable to comply with a prescribed treatment program, including a prescribed medication regimen under which the person self-administers medications;

(vi) is chronically bedfast;

(vii) has chronic and unmanaged urinary or bowel incontinence, is unwilling to participate in a bladder/bowel management program, and cannot otherwise maintain his or her personal hygiene;

(viii) has a communicable disease or health condition which is dangerous to other occupants of the foster family care home; or

(ix) depends on medical equipment unless:

(a) the equipment is not a safety hazard; and

(b) use of the equipment does not restrict the recipient to his or her bedroom, inhibit the recipient from participating in the activities of the foster family care home, or impede the recipient's mobility or the mobility of other occupants of the foster family care home.

(e) Authorizations for foster family care services. This subdivision sets forth the sponsoring agency's and the social services district's responsibilities for authorizing foster family care services.

(1) The sponsoring agency must obtain a physician's order for services. The physician's order must be based upon the person's medical condition as determined by a medical examination that is conducted within 30 calendar days before the sponsoring agency receives the request for foster family care services. The physician's order must include the person's medical history and current medical condition and the person's prescribed medication regimen.

(2) Within five business days after receiving the request for foster family care services, the sponsoring agency must complete a nursing assessment of the person.

(i) The nursing assessment must include the following:

(a) a review and interpretation of the physician's order;

(b) an evaluation of the person's medical and service needs and a plan of care based on those needs;

(c) information on the person's ability to self-administer medications;

(d) recommendations on methods of assisting the person in activities of daily living; and

(e) a determination whether the person is medically eligible for RHCF services or personal care services but is capable of being cared for in the community if a suitable home environment and medical support services are provided.

(ii) The nursing assessment must be completed by a registered professional nurse who meets the requirements set forth in section 505.14 of this Title for registered professional nurses who perform nursing assessments for personal care services recipients.

(3) The sponsoring agency must timely complete a social assessment of the person. The social assessment must include an evaluation of the potential contribution of informal caregivers, such as family and friends, to the person's care and must otherwise meet the requirements set forth in section 505.14 of this Title for social assessments of personal care services recipients.

(4) (i) If the sponsoring agency is not a social services district, the sponsoring agency must recommend to the social services district whether placement in the foster family care demonstration program is appropriate for the person. The sponsoring agency's recommendation must be based on the physician's order, the nursing assessment, and the social assessment.

(ii) When a sponsoring agency which is not a social services district recommends that placement in the foster family care demonstration program is appropriate for the person, the sponsoring agency must forward the following documents to the social services district: the sponsoring agency's recommendation that placement in the foster family care demonstration program is appropriate for the person, the physician's order, the nursing assessment, and the social assessment.

(iii) When a sponsoring agency which is not a social services district recommends that placement in the foster family care demonstration program is not appropriate for the person, the sponsoring agency must forward the following documents to the social services district: the sponsoring agency's recommendation that placement in the foster family care demonstration program is not appropriate for the person, the physician's order, the nursing assessment, and the social assessment.

(5) The social services district is responsible for determining whether placement in the foster family care demonstration program is appropriate for the person. The social services district's determination must be based upon the following documents: the physician's order; the nursing assessment; the social assessment; the district's evaluation of the cost-effectiveness of foster family care services compared to institutional long-term care; and, if the social services district is not a sponsoring agency, the sponsoring agency's recommendations required pursuant to paragraph (4) of this subdivision.

(6) When the social services district determines that placement in the foster family care demonstration program is appropriate for the person, it must complete an authorization for foster family care services. The authorization must be completed prior to the delivery of foster family care services and must not exceed a period of one year.

(7) An independent medical review of the case must be completed by the local professional director appointed pursuant to section 365-b of the Social Services Law, a physician designated by the local professional director, or a physician under contract to the social services district if there is disagreement between the physician's order, the social assessment, or the nursing assessment or if there is a question regarding the amount or type of foster family care services required. The independent medical review will result in a final determination whether foster family care services are appropriate for the person.

(8) Foster family care services can be re-authorized for one year periods. Each reauthorization must follow the procedures outlined in paragraphs (1) through (7) of this subdivision.

(9) (i) A social services district must notify the person in writing, on forms required by the department, of the decision to authorize, deny, reauthorize, reduce, or discontinue foster family care services. The notice must meet the notice requirements set forth in Part 358 of this Title.

(ii) (a) Except as provided in clause (b) of this subparagraph, a foster family care services applicant or recipient is entitled to a fair hearing in accordance with the requirements of Part 358 of this Title.

(b) Neither a foster family care services applicant or recipient, a foster family caregiver, a respite caregiver, nor any other person or entity is entitled to a fair hearing when a sponsoring agency terminates a foster family caregiver's or a respite caregiver's authority to provide foster family care services or when a social services district or the department terminates its contract with a sponsoring agency.

(iii) A foster family care services recipient for whom the social services district proposes to reduce or discontinue foster family care services is entitled to aid continuing in accordance with the requirements of Part 358 of this Title.

(f) Nursing supervision. (1) The sponsoring agency must provide, or arrange for the provision of, nursing supervision.

(2) Nursing supervision must be provided by a registered professional nurse who meets the requirements set forth in section 505.14(f) (3) of this Part for registered professional nurses who perform nursing supervision for personal care services recipients.

(3) Nursing supervision includes the following activities:

(i) evaluating the recipient's health status, medical needs, the adequacy of the foster family care services provided, and the foster family caregiver's or respite caregiver's ability to provide foster family care services;

(ii) making an initial nursing supervisory visit to the foster family care home within 72 hours after the recipient's placement in the home to ensure that the foster family caregiver understands the recipient's medical needs and has been trained to address those needs;

(iii) determining the frequency of subsequent nursing supervisory visits, which must occur at least every 90 calendar days, by considering the recipient's medical needs and the foster family caregiver's ability to provide foster family care services;

(iv) maintaining records of nursing supervisory visits and providing a copy of the records to the case manager; and

(v) reporting to the sponsoring agency any change in the recipient's condition or any action which might jeopardize the recipient's health or safety.

(g) Case management. (1) The sponsoring agency is responsible for case management from the day the sponsoring agency first has contact with the recipient to the day the recipient leaves the foster family care demonstration program.

(2) Case management activities include the following:

(i) arranging for the delivery of all needed services;

(ii) monitoring the foster family care services a recipient receives and assessing whether his or her continued participation in the foster family care demonstration program is appropriate;

(iii) assessing the foster family caregiver's or the respite caregiver's compliance with the provisions of this section during each visit to the foster family care home;

(iv) providing opportunities for the recipient to participate in activities within or outside of the foster family care home and assisting in arranging the recipient's transportation to activities outside of the foster family care home;

(v) assisting the recipient to:

(a) attend to personal financial matters;

(b) establish and maintain ties with family, friends, and occupants of the foster family care home; and

(c) participate in the daily routine of the foster family care home, including orienting the recipient to the foster family care home; and

(vi) assisting the social services district to make alternative arrangements for a recipient who continues to be eligible for MA when the recipient, the foster family caregiver, or the sponsoring agency terminates the admission agreement or when the sponsoring agency's contract with the social services district or the department is terminated.

(3) The case manager must maintain current records of its compliance with this subdivision's requirements and notify the social services district whenever there is a change in the recipient's condition or circumstances.

(4) The case manager must visit the recipient at least once every 90 calendar days.

(h) Foster family caregiver and respite caregiver qualifications. A foster family caregiver and respite caregiver must meet the following qualifications:

(1) be at least 21 years old;

(2) demonstrate sufficient income, not derived solely from the foster family care demonstration program, to meet the household expenses of the foster family caregiver and any other occupants of the home, except that a respite caregiver need not meet this requirement;

(3) not be otherwise employed in or out the home while providing foster family care services unless the social services district has approved the employment in writing;

(4) be able to speak, read, and write English and speak the recipient's predominant language; record messages; keep simple records concerning the recipient and the services provided; and understand and implement directions provided by the sponsoring agency, the nurse supervisor, or the social services district;

(5) demonstrate maturity, emotional and mental stability, and experience in caregiving and homemaking;

(6) demonstrate a sympathetic attitude toward recipients;

(7) be in good physical health, as evidenced by the documentation which the Department of Health requires for employees of certified home health agencies pursuant to 10 NYCRR 763.4; and

(8) live in the foster family care home.

(i) Applying to become a foster family caregiver or a respite caregiver. (1) A person who seeks to become a foster family caregiver or a respite caregiver must submit an application to the sponsoring agency. An application must include the following information:

(i) the names and addresses of each of the applicant's employers during the previous five years;

(ii) the names and addresses of two persons, unrelated to the applicant, who are acquainted with the applicant's desire and ability to provide foster family care services;

(iii) a statement listing the applicant's education, caregiving and homemaking experience, and community activities; and

(iv) a statement of the applicant's current income and the sources of that income, except that his requirement does not apply to respite caregiver applicants.

(2) The sponsoring agency must assist the applicant to complete the application and obtain the information listed in paragraph (1) of this subdivision.

(3) A sponsoring agency which is not a social services district must send the following information to the social services district within 10 business days after the day the sponsoring agency receives a person's application to become a foster family caregiver or a respite caregiver: a copy of the application; comments regarding the applicant's character, competence, and, except for a respite caregiver applicant, the applicant's financial ability to provide foster family care; and recommendations whether the social services district should approve the application. Within 20 business days after the day the social services district receives this information, it must approve or deny the application and send the applicant and the sponsoring agency a written notification of its determination. The social services district's approval or denial must be based on such information and, except for a respite caregiver applicant, on a survey of the applicant's home conducted by a district representative and a sponsoring agency representative.

(4) A sponsoring agency which is a social services district must send the applicant a written notification of its approval or denial of the application within 30 business days after receiving the application. The district's approval or denial must be based on its assessment of the applicant's character and competence and, except for a respite caregiver applicant, on the district's assessment of the applicant's financial ability to provide foster family care. The social services district's approval or denial of a foster family caregiver's application must also be based on a survey of the applicant's home conducted by a district representative.

(5) If a social services district denies a person's application to become a foster family caregiver or a respite caregiver, neither the person nor the sponsoring agency is entitled to a fair hearing to review the denial.

(j) Training. (1) Each foster family caregiver and respite caregiver must successfully complete a training program approved by the department. An approved training program must meet the basic training, periodic and continuous in-service training, and on-the-job instruction and supervision requirements specified in section 505.14(e) of this Part for persons who provide personal care services.

(2) Before providing foster family care services, a foster family caregiver or respite caregiver must successfully complete the prescribed part of the basic training program, as specified in section 505.14(e)

(3) of this Part. Within three months after the foster family caregiver or respite caregiver begins providing services, he or she must complete the entire basic training program. The department may waive the requirement that the foster family caregiver or respite caregiver complete a basic training program under the circumstances specified in section 505.14(e) (4) of this Part.

(k) Foster family caregiver and respite caregiver responsibilities for recipients. (1) Supervision. A foster family caregiver or respite caregiver must supervise recipients. Supervision includes the following:

(i) knowing each recipient's general physical location;

(ii) monitoring the recipient to identify abrupt or gradual changes in the recipient's behavior or appearance which indicate his or her needs should be reassessed or that he or she needs additional medical or social services, and promptly reporting such changes to the sponsoring agency;

(iii) monitoring the foster family care home and grounds to protect recipients from harm; and

(iv) handling emergencies occurring in the home.

(2) Food services. (i) The foster family caregiver or respite caregiver must provide recipients with the following daily meals and snacks:

(a) three nutritionally balanced meals a day which meet recipients' dietary needs, include a hot entree at lunch or dinner, and vary in menu and preparation; and

(b) at least two nutritious snacks between meals.

(ii) The foster family caregiver or respite caregiver must consider each recipient's prescribed dietary regimen, food allergies, and food preferences when planning, preparing, and serving meals and snacks. If a recipient requires a modified diet, the foster family caregiver or respite caregiver must provide the recipient with meals and snacks which conform to his or her dietary requirements.

(iii) The foster family caregiver or respite caregiver must maintain food reserves sufficient for three days of meals and snacks.

(iv) The foster family caregiver or respite caregiver must store, prepare, and serve food to assure its safety and nutritional value.

(v) The foster family caregiver must maintain a sufficient supply of dishes, glasses, and utensils to meet recipients' needs.

(vi) The foster family caregiver or respite caregiver must not require recipients to dine separately from other occupants of the foster family care home.

(3) Personal care services. The foster family caregiver or respite caregiver must perform personal care services as outlined in the recipient's plan of care.

(4) Respite care. The foster family caregiver must notify the sponsoring agency when he or she requires a respite caregiver.

(1) Foster family caregiver responsibilities for the foster family care home. (1) Home maintenance and renovations.

(i) A foster family caregiver must operate and maintain the foster family care home in good repair, in a sanitary condition, and in compliance with this section and with the State Uniform Fire Prevention and Building Code or other local fire and building code.

(ii) A foster family caregiver may renovate or remodel his or her home only with the sponsoring agency's and the social services district's approval. Renovation or remodeling plans must comply with this section and with the State Uniform Fire Prevention and Building Code or other local fire and building code.

(2) Recipients' bedrooms.

(i) A recipient's bedroom may be located only on the first or second floor of a foster family care home that is of frame or ordinary construction, as defined by Part 704 of the State Uniform Fire Prevention and Building Code, and whose structural elements are unprotected by fire-resistant materials. A recipient's bedroom may be located only on the first through the sixth floors of a foster family care home that is of frame or ordinary construction, as defined by Part 704 of the State Uniform Fire Prevention and Building Code, and whose structural elements are protected by fire-resistant materials.

(ii) A recipient's bedroom must have adequate light and ventilation and have sufficient floor space to contain the following required furnishings: a chair; a nightstand; a lamp; a dresser; adequate closet space; and a standard size single bed which is neither a rollaway bed, a metal cot, a folding bed, nor a bed higher than 36 inches from the floor.

(iii) A recipient's access to his or her bedroom must not be through another bedroom or bathroom. A recipient's access to a bathroom must not be through another bedroom.

(iv) A recipient must not be required to share a bedroom with another recipient unless both consent.

(v) A recipient's bedroom must be equipped with a hinged door. If chainlocks, hasps, bars, padlocks, or similar devices are used in the foster family care homes they must not inhibit a recipient's access to an exit or his or her movement in the foster family care home.

(vi) Windows in a recipient's bedroom must be furnished with curtains, shades, or blinds.

(vii) The foster family caregiver must supply each recipient with the following clean bed linens and supplies: a set of bed sheets, a pillow of average bed size, a pillowcase, a blanket, a bedspread, and adequate towels and washcloths. The foster family caregiver must change each recipient's bed sheets, pillowcase, towels, and washcloths every week and more often if necessary.

(viii) Electric blankets must not be used on recipients' beds.

(3) Other furnishings and equipment.

(i) A foster family care home's furnishings and equipment must be clean, constructed to withstand daily use, and in good repair.

(ii) Each foster family care home must have a working telephone.

(4) Heating and cooling.

(i) The foster family care home must have a permanently installed central heating system capable of maintaining required temperatures.

(ii) When the temperature outside the foster family care home is 65 degrees Fahrenheit or colder, the temperature in recipients' bedrooms and common areas must be at least 68 degrees Fahrenheit. When the temperature outside the foster family care home is 85 degrees Fahrenheit or hotter, the foster family caregiver must take steps to maintain a comfortable environment in recipients' bedrooms and common areas.

(5) Smoke and fire protection.

(i) Smoke detectors which meet Underwriters Laboratories standards must be installed in the following locations:

(a) In a multi-level foster family care home, at the top of all stairways and in recipients' bedrooms that are located more than 20 feet from the top of stairways;

(b) In a single level foster family care home, in all corridors leading to recipients' bedrooms; and

(c) In a multi-level or single level foster family care home, in any other locations recommended by the local fire department.

(ii) An ABC rated fire extinguisher which meets National Fire Protection Association standards must be properly installed in the kitchen.

(iii) Portable electric space heaters must not be used in a foster family care home.

(iv) Building exits and corridors must be free of obstructions at all times.

(v) Fire escapes, if required by a local fire and building code, must be installed and maintained according to such code.

(6) Disaster and emergency plan. The foster family caregiver must develop a disaster and emergency plan in consultation with the sponsoring agency and the social services district. The plan must include procedures for evacuating the home and temporarily providing essential services to recipients.

(i) The sponsoring agency must train all recipients, foster family caregivers, respite caregivers, and other occupants of the foster family care home to evacuate the home during a fire or other emergency.

(ii) The foster family caregiver must conduct semi-annual evacuation drills for all recipients, foster family caregivers, and other occupants of the foster family care home and record the date and time of each drill and the length of time that the evacuation required.

(m) Payment for foster family care. (1) Provided other funds are not available, the cost of foster family care services provided under this section will be paid out of funds appropriated to the MA program if federal financial participation is available.

(2) The department will make payments to a sponsoring agency, at a rate the department and the Division of the Budget approve, for expenditures for foster family care services provided to foster family care recipients in accordance with the provisions of this section.

(3) No payments will be made to a sponsoring agency for foster family care services expenditures unless the sponsoring agency supports its claim for payment with documentation, as required by the department, of the foster family care services provided to each recipient.

(n) Recordkeeping and confidentiality requirements. The sponsoring agency, the foster family caregiver, and any respite caregivers must perform the following recordkeeping activities:

(1) collect, maintain, and submit such information, records, or reports as required by the department and the social services district and make such records available for review at the department's or the district's request; and

(2) maintain the confidentiality of recipients' records in accordance with section 369 of the Social Services Law and Part 357 and Subpart 360-8 of this Title.

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Section 505.30 - Chronic hemodialysis services in the home.

505.30 Chronic hemodialysis services in the home. (a) Provision of chronic hemodialysis in the home shall be based on recommendation for such home treatment plan from a renal dialysis center or renal dialysis facility and shall require prior approval of the local professional director, except that treatment plans for individuals participating in the kidney disease institute's home dialysis assistance program shall not require prior approval by the local professional director.

(b) Provision and installation of a hemodialyzer and other durable medical equipment, supplies and drugs needed in the home care treatment plan shall be subject to prior approval requirements for these items, unless the items are provided through the kidney disease institute's home dialysis assistance program.

(c) State reimbursement for physician services, laboratory procedures, appliances and other items of care not included in an all-inclusive facility rate shall be made in accordance with the appropriate fee schedule.

(d) Payment to the kidney disease institute for equipment, drugs and supplies necessary to home care treatment shall be made in accordance with the actual or invoice charge to the kidney disease institute but shall not exceed the amount specified in the appropriate fee schedule. Payment and reimbursement for items provided through the kidney disease institute shall be available for services rendered on and after April 1, 1981.

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Section 505.31 - Audiology, hearing aid services and products.

505.31 Audiology, hearing aid services and products. (a) Definitions.

(1) Hearing aid services means services that are provided in compliance with article 37 of the General Business Law. These services include the selecting, fitting and dispensing of hearing aids, hearing aid checks following dispensing, and hearing aid repairs. Hearing aid products means hearing aids, earmolds, batteries, special fittings and replacement parts.

(2) Audiology services mean audiometric examinations or testing, hearing aid evaluations, conformity evaluations and hearing aid prescriptions or recommendations if indicated.

(3) Qualified audiologist means an audiologist that is licensed and currently registered to practice audiology in the State by the State Education Department.

(4) Qualified hearing aid dealer means any person, partnership, association or corporation engaged in the selecting, fitting and dispensing of hearing aids and currently registered in the State by the Department of State pursuant to article 37-A, section 789 of the General Business Law.

(b) Standards. All audiology services and hearing aid services and products must meet the requirements set forth in this Part and must be provided in accordance with the New York State Department of Health's regulations governing the provision of audiology services, audiometric screening and hearing aid services.

(c) Recommendation requirements. (1) All recommendations for hearing aids must be in writing and comply with article 37-A of the General Business Law.

(2) The written recommendation must indicate the need for a hearing aid and include the results of pure tone speech audiometry or equivalent testing conducted in a sound treated room or test suite meeting the American National Standard Institute's specifications.

(3) A prescription for a specific hearing aid requires a pure tone and sound field speech audiometry. The tests must be conducted by or under the direction and personal supervision of an otolaryngologist or qualified audiologist. When a specific device is prescribed, the hearing aid dealer must dispense as written.

(4) When a general recommendation is made, the hearing aid dealer must perform tests and procedures necessary to determine the specific hearing aid which will be of maximum benefit to aid or improve the impaired hearing.

(5) Hearing aids must be dispensed within six months of the date of the recommendation.

(d) Source of recommendation. (1) All written recommendations for hearing aids for children under 21 years of age must be from speech and hearing centers approved to provide services under the Physically Handicapped Children's Program. The written recommendation must be signed by a qualified otolaryngologist or qualified audiologist. For persons under 21 residing in New York State Developmental Centers, the recommendation for a hearing aid may be from the developmental center.

(2) Written recommendations for hearing aids for persons 21 years of age and older must be from a qualified otolaryngologist, a speech and hearing center approved to provide services under the Physically Handicapped Children's Program, a qualified audiologist, or a facility approved pursuant to Article 28 of the Public Health Law and certified to render speech and hearing or audiology services.

(e) Prior approval requirements. (1) Prior approval of the local Physically Handicapped Children's Program medical director is required for all hearing aid services furnished to persons under 21 years of age.

(2) Prior approval from the New York State Department of Health is required for hearing aids, dispensing and administrative fees as defined by regulations of the New York State Department of Health, and special fittings when the source of the recommendation is not a speech and hearing center approved to provide services under the Physically Handicapped Children's Program. Batteries not listed in the department's provider manual and repairs costing $70 or more require prior approval from the New York State Department of Health regardless of the source of the order.

(f) Written statements required. (1) Audiology services, except for conformity evaluations (hearing aid checks), must be supported by a written referral by a licensed physician. The written referral must be maintained with the recipient record.

(2) A statement of recipient rights and obligations must be provided to the recipient by the hearing aid dealer at the time the hearing aid is dispensed. The hearing aid dealer must also place a copy of the statement in the recipient's record. The statement must explain the 30 day trial period and the recipient's right to return to the dealer for all necessary adjustments and calibrations of the hearing aid during the 30 day trial period and to return an unsatisfactory hearing aid.

(g) Review of claims. (1) The identity of the physician, audiologlst, speech and hearing center approved to provide services under the Physically Handicapped Children's Program, or the facility approved pursuant to Article 28 of the Public Health Law and certified to render speech and hearing or audiology services which ordered the hearing aid service or product must be recorded by the hearing aid dealer on the claim for payment by entering in the license or MMIS provider ID number of the orderer where indicated.

(2) The identity of the referring physician must be recorded on the claim for payment for audiology services by entering the license or MMIS provider ID number of the physician where indicated.

(3) Written statements referring persons for audiology services and recommendations or prescriptions for hearing aid services and products must be maintained by the provider submitting the claim for audit by the department or other authorized agency for six years from the date of payment.

(4) Hearing aid dealers must also maintain at each of their business locations the records specified in 19 NYCRR 191.13.

(5) The financial liability of the referring or ordering provider for any audiology services or hearing aid services or products determined on audit not to be medically necessary is set forth in Part 518 of this Title.

(h) Payment. (1) Hearing aid services and products payment.

(i) Payment for hearing aid services and products is limited to providers enrolled in the medical assistance program as hearing aid dealers, speech and hearing centers approved by the Physically Handicapped Children's Program to provide speech and hearing services, or facilities approved pursuant to article 28 of the Public Health Law and certified to render speech and hearing or audiology services.

(ii) Hearing aids must be provided for a trial period of at least 30 days.

(iii) The dispensing and administrative fees, as defined by regulations of the New York State Department of Health, are reimbursable to for-profit hearing aid dealers only.

(iv) (a) Payment for hearings aids must not exceed the lower of: (1) the maximum reimbursable amount for the item, as shown in the fee schedule for hearing aid/audiology services and as determined by the Department based on the average cost of products representative of that item; or (2) the usual and customary price charged to the general public for the same or similar items. (b) When there is no maximum reimbursable amount listed in the fee schedule for hearing aid/audiology services, payment for hearing aids must not exceed the lower of: (1) the acquisition cost, net of any discounts or rebates, supported by a copy of the invoice, which must include the brand, model, and serial number of the dispensed hearing aid; or (2) the usual and customary price charged to the general public for the same or similar items.

(v) Reimbursement for dispensing and administrative fees, batteries, earmolds, and replacement parts is based on the fee schedule for hearing aid/audiology services. The fee schedule for hearing aid/audiology services is available at the Medicaid fiscal agent’s website.

(2) Audiology payment. (i) Payment is available for audiology services for those providers enrolled in the medical assistance program as audiologists, speech and hearing centers approved by the Physically Handicapped Children's Program to provide speech and hearing services, facilities approved under article 28 of the Public Health Law and certified to render speech and hearing or audiology services, or audiology services which are part of the development of, or furnished pursuant to, an individualized education program or an interim or final individualized family services plan and which are provided by audiologists employed by, or under contract to, a school district, an approved preschool, a county in the State or the City of New York, an approved early intervention program, or a municipality in the State.

(ii) Reimbursement to qualified audiologists or hearing aid dealers that employ qualified audiologists for audiology services is based on the fee schedule for hearing aid/audiology supplies and services. The fee schedule for hearing aid/audiology supplies and services is available from the department and is also contained in the MMIS Provider Manual (Hearing Aid/Audiology Services). Copies of the manual may be obtained by writing Computer Sciences Corporation, Health and Administrative Services Division, 800 North Pearl St., Albany, NY 12204. Copies may also be obtained from the Department of Social Services, 40 North Pearl St., Albany, NY 12243. The manual is provided free of charge to every provider of audiology services at the time of enrollment in the MA program.

(iii) Reimbursement to facilities approved under article 28 of the Public Health Law and certified to render speech and hearing or audiology services is limited to the rates set by the New York State Department of Health for speech and hearing or audiology services.

(iv) Payment is available for audiology services which are part of the development of, or furnished pursuant to, an individualized education program and are provided by audiologists employed by, or under contract to, a school district, an approved pre-school, or on behalf of a county in the State or the City of New York. Reimbursement for such services must be in accordance with the provider agreement.

(v) Payment for audiology services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and are provided by audiologists employed by, or under contract to, an approved early intervention program or a municipality in the State. Reimbursement for such services must be made in accordance with the provider agreement.

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Effective Date: 
Wednesday, June 18, 2014

Section 505.32 - Nurse practitioner services.

505.32 Nurse practitioner services. (a) Definitions. (1) Nurse practitioner means an individual who is licensed and currently registered as a professional nurse in the State and who is certified under section 6910 of the Education Law as a nurse practitioner.

(2) Nurse practitioner services means the provision of services to a medical assistance (MA) recipient which are in conformity with the provisions of sections 6902 and 6910 of the Education Law, regulations of the Education Department and regulations of the Department of Health.

(3) Collaborating physician means a physician who is not excluded from participation in either the MA or the Medicare programs, with whom the nurse practitioner maintains practice agreements and practice protocols in accordance with section 6902 of the Education Law.

(4) Practice agreements and practice protocols means written documents meeting the requirements of section 6902 of the Education Law and 8 NYCRR section 64.6 of the Education Department's regulations.

(b) Written practice agreement and practice protocols required. Written practice agreements and practice protocols between nurse practitioners and their collaborating physicians must contain the provisions required by the Education Law and regulations of the Education Department, including provisions for the collaborating physician's review of patient records at least every three months. The physician's review of patient records is not a billable service under the MA program. The nurse practitioner must make the written practice agreements and practice protocols and evidence that the collaborating physician has reviewed patient records available to the department and its agents for purposes of conducting audits under the MA program.

(c) Identification of collaborating physician required. The nurse practitioner must submit the name of and other identifying information concerning the collaborating physician with the nurse practitioner's MA enrollment application.

(d) Payment for nurse practitioner services. MA coverage for nurse practitioner services is available in accordance with the provisions of this subdivision.

(1) Except as otherwise provided in this subdivision, payment for nurse practitioner services must be in accordance with the fees established by the Department of Health and approved by the Director of the Budget.

(2) Payment is available for nurse practitioners' services which are part of the development of, or furnished pursuant to, an individualized education program and which are provided by a nurse practitioner employed by, or under contract to, a school district, an approved preschool, or a county in the State or the City of New York. Reimbursement for such services must be made in accordance with the provider agreement.

(3) Payment is available for nurse practitioners' services which are part of the development of, or furnished pursuant to, an interim or final individualized family services plan and are provided by a nurse practitioner employed by, or under contract to, an approved early intervention program, or a municipality in the State. Reimbursement for such services must be made in accordance with the provider agreement.

(4) Payment for nurse practitioner services provided by a nurse practitioner who is paid a salary by a medical facility which is reimbursed under the MA program for its services on a rate basis will be made on a fee for service basis only if the cost of the nurse practitioner services is not included in the facility's cost-based rate.

(5) Payment will be made for medically necessary ancillary services which are covered under the MA program and which the nurse practitioner orders for an MA recipient. Payment will only be made for prescription drugs when prescribed by a nurse practitioner who has the authority to write prescriptions under the provisions of the Education Law and regulations for the Education Department.

(e) This section is effective for services provided by nurse practitioners on and after July 1, 1990.

(f) Preferred Physicians and Children Program. (1) Scope. The Preferred Physicians and Children Program (PPAC) is a program under which a written agreement is entered into by a provider and the department pursuant to which the department pays enhanced fees for certain medical services provided to children under the age of 21 who are eligible for Medical Assistance (MA). Only qualified nurse practitioners meeting the requirements of this section are eligible to participate in PPAC. Nurse practitioners who wish to participate in PPAC must apply in writing on forms provided by the department. Applications for participation will be reviewed by and must receive approval of the department and the Department of Health. Participating nurse practitioners may obtain payment at the enhanced fees for medical services by using special PPAC procedure codes on their MA claims.

(2) Purpose. The purpose of PPAC is to improve access to quality medical care for MA-eligible children by paying enhanced MA fees to nurse practitioners meeting the criteria for PPAC participation.

(3) Definitions.

(i) Nurse practitioner, for the purposes of this subdivision, means a person who is licensed and currently registered pursuant to section 6910 of the Education Law to practice registered professional nursing which may include the diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures within a specialty area of practice, in collaboration with a licensed physician qualified to collaborate in the specialty involved, provided such services are performed in accordance with a written practice agreement and written practice protocols; the written practice agreement must include explicit provisions for the resolution of any disagreement between the collaborating physician and the nurse practitioner regarding a matter of diagnosis or treatment that is within the scope of practice of both; and as defined at and in accordance with section 6902 of the Education Law.

(ii) Medical care coordination, for purposes of this subdivision, means providing or arranging for the provision of:

(a) scheduling of elective hospital admissions;

(b) assisting with emergency admissions;

(c) managing and/or participating in hospital care and discharge planning;

(d) scheduling of referral appointments with written referrals as necessary and with requests for follow-up reports;

(e) scheduling of ancillary services;

(f) notifying by telephone the social services district responsible for furnishing MA to the recipient when transportation services are essential to ensure the MA recipient's access to medically necessary care and services provided under the MA program; and

(g) maintaining complete medical records in compliance with the requirements of section 540.7 of this Title, including, but not limited to, notation of referrals and hospitalizations, and copies of test results and reports.

(iii) Qualified primary care nurse practitioner, for the purposes of this subdivision, means a nurse practitioner who:

(a) is licensed and currently registered as a professional nurse in this State and who is certified and currently registered as a nurse practitioner under section 6910 of the Education Law;

(b) has a collaborative agreement with a physician who has an agreement with the MA program to participate in PPAC as a primary care provider;

(c) provides 24-hour telephone coverage of his or her practice and ensures timely access to a practitioner qualified to respond to patients' health care needs. This requirement cannot be met by a recording which refers patients to emergency rooms;

(d) provides medical care coordination;

(e) provides periodic health assessment examinations in accordance with the standards of the Child/Teen Health Plan (C/THP), as set forth in Part 508 of this Title;

(f) complies with all applicable statutory and regulatory requirements of the MA program; and

(g) is enrolled in the MA program and accepted for participation in PPAC by the department and the Department of Health.

(iv) Qualified specialist nurse practitioner, for purposes of this subdivision, means a nurse practitioner who:

(a) is licensed and currently registered as a professional nurse in this State and who is certified under section 6910 of the Education Law as a nurse practitioner;

(b) has a collaborative agreement with a physician who has an agreement with the MA program to participate in PPAC as a qualified non-primary care specialist physician;

(c) provides consultation summaries or appropriate periodic progress notes to qualified primary care physicians on a timely basis following referrals or routinely scheduled consultant visits;

(d) notifies the qualified primary care physician when scheduling a hospital admission;

(e) maintains complete medical records in compliance with the requirements of section 540.7 of this Title, including but not limited to, notation of referrals and hospitalizations, and copies of test results and reports;

(f) complies with all applicable statutory and regulatory requirements of the MA program; and

(g) is enrolled in the MA program and accepted for participation in PPAC by the department and the Department of Health.

(4) Written agreement required. (i) As a condition of participation in PPAC, each nurse practitioner must certify to the department that he or she meets the standards for participation set forth in either subparagraph (3)(iii) or (iv) of this subdivision.

(ii) Each qualified primary care and qualified specialist nurse practitioner must agree in writing that:

(a) informational material provided by the department concerning MA eligibility and services for persons under 21 years of age and pregnant women will be conspicuously displayed on the nurse practitioner's premises and that the nurse practitioner will request additional informational material from the department as necessary;

(b) the nurse practitioner will notify the department within 30 days of circumstances resulting in his or her ineligibility to participate in PPAC and/or the inability to perform the activities and services required under the agreement;

(c) the Department of Health has the authority to establish fees for payment which supersede those in effect at the time the nurse practitioner first entered into an agreement to participate in PPAC and which are applied prospectively to services furnished under the program by the nurse practitioner;

(d) the nurse practitioner will comply with all policies, procedures and instructions provided by the department and the Department of Health to implement PPAC and make claims for payment under the MA program in accordance with the claiming procedures and the current fee schedule;

(e) the department may cancel the nurse practitioner's participation in PPAC at any time by providing at least 30-days' written notice for failing to comply with standards for participation in PPAC; and

(f) the nurse practitioner will provide the department with at least 30 days written notice of his or her intent to cancel the PPAC agreement, which notice must include a description of the basis for the cancellation. The nurse practitioner must agree to continue to provide and/or arrange for the provision of medical services for patients up to the date of termination of the PPAC agreement, to assist patients to maintain continuity of care, to provide patients with information to assist them in transferring their care to another provider and to make timely transfer of appropriate information in the patients' records upon request.

(5) Payment. (i) Qualified primary care and qualified specialist nurse practitioners will be paid for their services pursuant to their agreement with the department at fees established by the Department of Health and approved by the Director of the Budget.

(ii) Qualified primary care and qualified specialist nurse practitioners who provide services in free-standing or hospital-based clinics licensed under article 28 of the Public Health Law may not submit claims for their services using the PPAC procedure codes if the clinic submits claims to the MA program and is paid for these services. When the nurse practitioner's services are not included in the clinic's MA rate, the nurse practitioner may submit claims using the regular (non-PPAC) MA procedure codes.

(iii) Qualified primary care and qualified specialist nurse practitioners who, either individually or as members of a group practice, provide services in the emergency rooms of facilities licensed under article 28 of the Public Health Law, pursuant to contracts with those facilities, may not submit MA claims for their services using the PPAC procedure codes. When an emergency room nurse practitioner's services are not included in the article 28 facility's MA rate, the nurse practitioner may submit claims using the regular (non-PPAC) MA procedure codes.

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Section 505.33 - Personal emergency response services (PERS).

505.33 Personal emergency response services (PERS). (a) Definitions.

(1) Personal emergency response services mean:

(i) the provision and maintenance of electronic communication equipment in the home of an individual which signals a monitoring agency for help when activated by the individual, or after a period of time if a timer mechanism has not been reset; and

(ii) the continuous monitoring of such signals by a trained operator and, in case of receipt of such signals, the immediate notification of such emergency response organizations or persons, if necessary, as the individual has previously specified.

(2) Electronic communication equipment (PERS equipment) means equipment that electronically signals a monitoring agency for help via telephone lines. PERS equipment includes the following:

(i) an emergency response activator, which is a small electronic device that the PERS recipient presses or otherwise activates to send a signal for help to the monitoring agency; and

(ii) an emergency response communicator, which is an electronic unit connected to a PERS recipient's telephone line. The emergency response communicator accepts a signal for help from the emergency response activator and also has its own device to generate a signal for help. It sends the signal via telephone lines to the monitoring agency.

(3) Monitoring agency means an agency that is capable of receiving signals for help from a recipient's PERS equipment 24 hours per day, seven days per week; determining whether an emergency exists; and notifying an emergency response organization or an emergency responder that the PERS recipient needs emergency help.

(4) Emergency response organization means a police department, a fire department, an ambulance service, a hospital, or other entity that the PERS recipient has designated to respond to specific signals for help when notified by the monitoring agency or an emergency responder.

(5) Emergency responder means a PERS recipient's neighbor, family member, or other person who has agreed, at the recipient's request, to respond to specific signals for help when notified by the monitoring agency.

(6) PERS provider means a certified home health agency, a long-term home health care program, an area agency on aging, a police department, a fire department, an ambulance service, a hospital, or any other entity that is capable of providing PERS either directly or through subcontracts. A PERS provider may also be a monitoring agency.

(b) Social services districts' PERS plans. (1) Each social services district must submit a PERS plan to the department on a form the department requires and must not authorize PERS until the department has approved the district's PERS plan. Each social services district must submit any changes to its approved PERS plan to the department on a form the department requires. The district may include such changes to its approved PERS plan as part of the district's annual plan for the provision of personal care services, as required by section 505.14(j) of this Part.

(2) A social services district's PERS plan must be in a form acceptable to the department and must include descriptions of the following:

(i) the process the social services district will use to authorize PERS;

(ii) the PERS equipment that the social services district will require to be used, including whether the equipment will have a voice-to-voice capability;

(iii) the process by which the social services district will select the PERS providers with which it will contract;

(iv) the coordination among the social services district, the PERS providers with which it will contract, and any entities with which the PERS providers will subcontract; and

(v) the projected cost savings that PERS will achieve.

(3) The department will notify a social services district of its approval or disapproval of the district's PERS plan within 45 business days after it receives the plan. If the department disapproves a social services district's PERS plan, the district must submit a revised plan to the department within 30 business days after the day the district receives the department's disapproval notice.

(c) PERS assessments, authorizations, and reauthorizations.

(1) As part of its assessment for an authorization of personal care services or home health services, a social services district may also assess whether PERS would be appropriate for a person.

(2) An initial authorization for PERS must be based on a physician's order and a comprehensive assessment of the person.

(i) The comprehensive assessment must be performed by social services district staff, or by staff of the district's designee, on forms that the department approves to be used.

(ii) The comprehensive assessment must evaluate the following factors: the person's physical disability status, the degree to which the person is at risk of an emergency due to a medical or functional impairment or disability, and the degree of the person's social isolation.

(iii) A social services district may authorize PERS only when the comprehensive assessment indicates that PERS would be appropriate for the person because:

(a) the person has a medical condition, disability, or impairment that warrants use of PERS;

(b) PERS would reduce or eliminate the number of hours of personal care services or home health services that the person would need;

(c) the person's safety in the home must be monitored;

(d) the person has insufficient informal caretakers, such as family members and friends, directly and continuously available to monitor his or her health and safety;

(e) the person is alert and self-directing, which means that he or she is capable of making choices about activities of daily living, understanding the impact of the choices, and assuming responsibility for the results of the choices;

(f) the person can communicate in basic English or, if the person is unable to communicate in basic English, the person's emergency responder or responders can communicate in basic English;

(g) the person would be able to use the PERS equipment effectively; and

(h) the person has a functioning telephone that is compatible with the PERS equipment or will have such a telephone when the PERS equipment is installed.

(3) If a social services district authorizes PERS, the PERS authorization and plan of care may be incorporated in the authorization and plan of care for personal care services or home health services.

(4) The duration of an initial PERS authorization must be based upon the person's needs, as reflected in the comprehensive assessment. No initial authorization may exceed six months.

(5) When a PERS recipient's physical circumstances, mental status, or medical condition significantly change during the authorization period, social services district staff, or staff of the district's designee, must perform a new comprehensive assessment and make any necessary changes in the authorization.

(6) A social services district must not authorize PERS if the person is eligible for the long-term home health care program (LTHHCP), can obtain PERS through the LTHHCP, and wishes to obtain PERS through the LTHHCP.

(7) A reauthorization of PERS must follow the procedures set forth in paragraphs (2) through (6) of this subdivision, except that the recipient's physician, the social services district's local professional director, or a physician at the area Office of Health Systems Management must review the comprehensive assessment and be responsible for the final determination to reauthorize PERS. No single reauthorization may exceed six months.

(8) A social services district must notify the person in writing of its decision to authorize, deny, reauthorize, or discontinue PERS on forms required by the department. The notice must meet the notice requirements set forth in Part 358 of this Title. The person will be entitled to a fair hearing in accordance with the requirements of Part 358 of this Title. A PERS recipient for whom the social services district proposes to discontinue PERS will be entitled to aid continuing in accordance with the requirements of Part 358 of this Title.

(d) Contracting for PERS. (1) A social services district must have contracts with a sufficient number of PERS providers to provide PERS to all persons for whom the district has authorized PERS.

(2) Before contracting with any PERS provider, a social services district must determine that the provider is qualified to provide PERS either directly or through subcontracts and can meet this section's requirements and any local requirements contained in the district's approved PERS plan described in subdivision (b) of this section.

(3) A social services district's contracts with PERS providers must be on a form that the department has approved to be used. A district may attach local variations to the form. A district must not implement any contract for PERS or any local variations until the department has approved the contract and any local variations.

(4) A PERS provider must maintain appropriate insurance coverage to protect the social services district from liability claims resulting from acts, omissions, or negligence of provider personnel that cause personal injuries to PERS recipients or such personnel.

(e) Responsibilities of social services districts. (1) A social services district must ensure that the PERS recipient designates an emergency response organization; one emergency responder or, if possible, two such responders; a representative, who may be the same person as an emergency responder; and a preferred hospital. The district must also ensure that the PERS recipient, or his or her representative, signs a written authorization for emergency response organization personnel and an emergency responder to enter the recipient's home and provide emergency treatment and transportation.

(2) On the day that a social services district authorizes PERS, it must perform the following activities:

(i) telephone the PERS provider and inform the provider:

(a) of the name, telephone number, and address of the person for whom the social services district has authorized PERS;

(b) that the provider must telephone the person or the person's representative that same day to arrange a mutually convenient time for the provider to install the PERS equipment into the person's functioning telephone line; and

(c) that the provider must install the PERS equipment within seven business days after the day the provider receives a written PERS authorization from the social services district and that, if the provider cannot install the equipment within this seven day period, it must immediately notify the district.

(ii) send the PERS provider a written PERS authorization; and

(iii) send the PERS provider the information regarding the person that is described in clauses (f)(3)(i)(a) through (g) of this section.

(3) If a PERS recipient's physical circumstances, medical condition, or mental status change during the authorization period, the social services district must send to the PERS provider the information regarding these changes so that the provider may update the recipient's data record, as described in subparagraph (f)(3)(i) of this section.

(4) (i) Subject to the notice, aid continuing, and fair hearing requirements set forth in subdivision (e) (8) of this section and Part 358 of this Title, a social services district must discontinue PERS when the recipient is continuously hospitalized for more than 60 days or when his or her physical circumstances, mental status, or medical condition has changed significantly so that PERS are no longer appropriate for the person. Whenever a social services district discontinues PERS because PERS are no longer appropriate for the recipient, the district must ensure that personal care services, if appropriate, are provided to the recipient.

(ii) On the day that the social services district discontinues PERS, it must perform the following activities:

(a) telephone the PERS provider and inform the provider that it must telephone the recipient or the recipient's representative that same day to arrange a mutually convenient time for the PERS equipment's removal, and that the provider must remove the PERS equipment within seven business days after the day the provider receives the district's written notification to remove the equipment; and

(b) send the PERS provider a written notification to remove the PERS equipment.

(5) A social services district must monitor a PERS provider's compliance with this section's requirements. The district must monitor the timeliness of the provider's installation, maintenance, and removal of PERS equipment; the timeliness and efficiency of the monitoring agency's responses to signals for help from recipients' PERS equipment; the timeliness of the provider's reports of emergencies; the reliability of PERS equipment; and all complaints by PERS recipients regarding the PERS provider or the PERS equipment.

(f) Responsibilities of PERS providers. (1) A PERS provider must properly install all PERS equipment into a PERS recipient's functioning telephone line and must furnish all supplies necessary for installing this equipment.

(i) On the day that the PERS provider receives the district's telephoned PERS authorization, it must telephone the recipient or the recipient's representative to arrange a mutually convenient time for the provider to install the PERS equipment into the recipient's functioning telephone line. The PERS provider must install the PERS equipment within seven business days from the day it receives the district's written PERS authorization. If the provider is unable to install the PERS equipment within this period, it must notify the district immediately.

(ii) On the day that the PERS provider installs the PERS equipment, it must perform the following activities:

(a) telephone the social services district and notify it that the equipment has been installed;

(b) instruct the PERS recipient regarding the use of the PERS equipment and give the PERS recipient simple written instructions that describe these procedures;

(c) inform the PERS recipient that he or she should immediately notify the provider or the social services district if the equipment malfunctions; and

(d) inform the PERS recipient that he or she may call the monitoring agency when he or she wants to test the PERS equipment or when he or she has questions regarding the PERS equipment.

(iii) At the PERS recipient's or the social services district's request, the PERS provider must give follow-up instructions to the recipient regarding his or her use of the PERS equipment.

(iv) Within seven business days after the day the PERS equipment is installed, the PERS provider must forward to the social services district, by mail or facsimile machine, a written confirmation that the equipment has been installed and that the PERS recipient has been instructed how to use the equipment. The confirmation must be signed by a representative of the provider and by the PERS recipient or the recipient's representative.

(2) A PERS provider must maintain all installed PERS equipment in proper working order.

(i) The PERS provider must monitor all installed PERS equipment to insure that the equipment operates properly at all times. The provider's monitoring of the PERS equipment should be automated and result in the least possible inconvenience to the PERS recipient.

(ii) The PERS provider must replace PERS equipment batteries when necessary, at no additional cost to the social services district, the department, or the recipient.

(iii) Within 24 hours after the PERS provider is notified that any PERS equipment has malfunctioned, the provider must repair or replace the equipment at no additional cost to the social services district, the department, or the recipient. The PERS provider may be notified that the PERS equipment has malfunctioned by the social services district, the PERS recipient, the PERS recipient's representative, or another responsible party. When any PERS equipment is repaired or replaced, the PERS provider must notify the social services district by telephone within 24 hours.

(3) A PERS provider must maintain the following records at no additional cost to the social services district or the department:

(i) a data record for each PERS recipient. The provider must update this record at least every six months by contacting the social services district. The provider must also update the recipient's data record whenever the social services district notifies the provider that changes should be made to the PERS recipient's data record. Each PERS recipient's data record must contain the following information, which the social services district will send to the provider on the day it authorizes PERS and whenever the social services district is informed that such information has changed:

(a) the PERS recipient's name, telephone number, and address, including his or her apartment number and floor, if applicable;

(b) the PERS recipient's personal medical history, including his or her age, sex, medical condition, diagnosis, and other relevant medical history;

(c) the name, telephone number, and address of the person or persons whom the PERS recipient has designated as the emergency responder or responders;

(d) the name, telephone number, and address of the person whom the PERS recipient has designated as his or her representative, if different from an emergency responder;

(e) the name, telephone number, and address of the police department, fire department, ambulance service, hospital, or other entity that the PERS recipient has designated as an emergency response organization;

(f) the PERS recipient's written authorization for the emergency response organization and an emergency responder to enter his or her home and provide emergency treatment and transportation; and

(g) the name, telephone number, and address of the PERS recipient's physician and the recipient's preferred hospital.

(ii) a record of the PERS provider's instructions to the PERS recipient regarding his or her use of the PERS equipment;

(iii) a record of the PERS equipment's installation and removal;

(iv) a record of the maintenance of PERS equipment and any repairs or replacements of malfunctioning equipment that were necessary;

(v) a record of the monitoring agency's 24-hour monitoring of PERS recipients;

(vi) a record of each signal for help from a recipient's PERS equipment that the monitoring agency receives and the monitoring agency's response to the signal; and

(vii) a record of PERS recipients whom the monitoring agency monitors each month.

(4) (i) The PERS provider must ensure that the monitoring agency performs the following activities when the monitoring agency receives a signal for help from a recipient's PERS equipment:

(a) if the PERS recipient's equipment has voice-to-voice capability, establish immediate verbal contact with the PERS recipient via the incoming signal to determine whether an emergency exists at the PERS reicipient's home;

(b) retrieve the PERS recipient's data record;

(c) if unable to establish immediate verbal contact with a PERS recipient whose equipment has voice-to-voice capability, or if the PERS recipient's equipment lacks such capability, immediately notify an emergency responder that the PERS recipient has signaled for help;

(d) if unable to notify an emergency responder, immediately notify an emergency response organization that the PERS recipient has signaled for help;

(e) maintain appropriate contact with the PERS recipient, the emergency responder, or the emergency response organization; and

(f) monitor the provision of emergency services to verify that these services have been provided and that the emergency at the PERS recipient's home has been resolved.

(ii) The PERS provider must telephone the social services district on the first business day after the emergency occurred and inform it of the nature of the emergency and how it was resolved. The provider must forward to the social services district, by mail or facsimile machine, a written report of the emergency within seven business days after the day the emergency occurred. This report must contain at least the information described in paragraphs (3)(v) and (vi) of this subdivision.

(5) The PERS provider must ensure that the monitoring agency can continuously monitor and respond to signals for help from recipients' PERS equipment during power failures, mechanical malfunctions, or other technical emergencies. The provider must ensure that the monitoring agency has the monitoring capabilities specified in subdivision (g) (2) of this section.

(6) A PERS provider must remove PERS equipment from a recipient's home when notified to do so by the social services district. The provider must not remove PERS equipment unless the district has notified it that the equipment must be removed.

(i) On the day the social services district telephones the PERS provider and notifies it that PERS equipment must be removed, the provider must telephone the recipient or the recipient's representative to arrange a mutually convenient time for the equipment's removal.

(ii) The PERS provider must remove PERS equipment within seven business days after the day the provider receives the social services district's written notification that PERS equipment must be removed.

(iii) On the day the PERS equipment is removed, the PERS provider must notify the social services district by telephone of the equipment's removal.

(iv) Within seven business days after the day the PERS equipment is removed, the PERS provider must forward to the social services district, by mail or facsimile machine, a written confirmation that the equipment has been removed. The confirmation must be signed by a representative of the provider and by the former PERS recipient or his or her representative.

(g) Standards for PERS equipment and monitoring agencies. (1) All PERS equipment must be approved by the Federal Communications Commission and meet the Underwriters' Laboratories, Inc. (UL) safety standard Number 1637, which is the UL safety standard for home health care signaling equipment. (Standard for Home Health Care Signaling Equipment, UL 1637, First Edition, May 30, 1989, effective January 2, 1991; published by Underwriters Laboratories, Inc., 333 Pfingsten Road, Northbrook, Illinois, 60062. Copies are available for public use and inspection at the Department of State, 162 Washington Avenue, Albany, New York, 12231.) The UL listing mark on the equipment will be accepted as evidence of the equipment's compliance with such standard.

(i) The emergency response activator must be activated either by breath, by touch, or by some other means and must be usable by persons who are visually or hearing impaired or physically disabled.

(ii) The emergency response communicator must be attached to the PERS recipient's telephone line and must not interfere with normal telephone use. The emergency response communicator must be capable of operating without external power during a power failure at the recipient's home in accordance with UL requirements for home health care signaling equipment with stand-by capability.

(2) The monitoring agency must be capable of simultaneously responding to multiple signals for help from:

(i) a primary receiver and a back-up receiver, which must be independent and interchangeable;

(ii) a back-up information retrieval system;

(iii) a clock printer, which must print out the time and date of the emergency signal, the PERS recipient's identification code, and the emergency code that indicates whether the signal is active, passive, or a responder test;

(iv) a back-up power supply;

(v) a separate telephone service; and

(vi) a telephone line monitor, which must give visual and audible signals when an incoming telephone line is disconnected for more than 10 seconds.

(3) The monitoring agency must maintain detailed technical and oper ations manuals that describe PERS elements, including the installation, functioning, and testing of PERS equipment; emergency response protocols; and recordkeeping and reporting procedures.

(h) Payment for PERS. (1) A social services district must negotiate payment rates for PERS at or below rates included in a rate schedule established by the department with the approval of the Director of the Budget. A social services district must not negotiate PERS payment rates that exceed local prevailing PERS rates.

(2) PERS rates must include payment for the rental or lease of PERS equipment; the installation, maintenance, and removal of PERS equipment; and a monthly service charge for monitoring agency services.

(3) The social services district must submit all negotiated PERS rates to the department for approval.

(4) Payments for PERS will be made only when the PERS provider's claim is supported by documentation required by section 540.7(a) (8) of this Title.

(5) Payments for PERS must end the day the social services district sends the PERS provider written notification that PERS equipment must be removed from the recipient's home.

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Section 505.34 - Chronic care management demonstration programs.

505.34 Chronic care management demonstration programs. (a) Definitions. (1) A chronic care management demonstration program (program) is a program authorized by Chapter 653 of the Laws of 1984, Chapter 832 of the Laws of 1987 or Chapter 530 of the Laws of 1988 that tests costeffective methods of coordinating the arrangement and provision of services to persons who require chronic or long-term care and determines whether such a program can effectively meet these persons' needs.

(2) Multi-disciplinary team is a group comprising one or more physicians, nurses, social workers, therapists, home health aides, nutritionists or such other health care professionals as determined necessary by the program, that assesses a person's eligibility for program enrollment and provides case management services to program enrollees.

(b) Contracts. A program may operate and receive medical assistance

(MA) payments only if it has entered into a contract with the department. With the advice and consent of the Department of Health, the department may contract with a program sponsored by Beth Abraham Hospital, Bronx, New York, or with a program sponsored by a not-for-profit corporation affiliated with such hospital. With the advice and consent of the Department of Health and the Monroe County Department of Social Services, the department may contract with a program sponsored by Rochester Health Care, Inc. and with programs sponsored by other providers licensed or certified pursuant to Article 28, 36, or 44 of the Public Health Law to provide services in Monroe County.

(c) Eligibility criteria. (1) Except as provided in paragraph (2) of this subdivision, a person is eligible to enroll in a program if he or she meets the following criteria:

(i) is at least 55 years old or such age as may be specified in the contract required by subdivision (b) of this section;

(ii) is eligible for MA or, as may be specified in the contract required by subdivision (b) of this section, is eligible for MA and Medicare, and such person's MA eligibility is determined, where applicable, in accordance with the rules for the treatment of income and resources of institutionalized spouses specified in Part 360 of this Title;

(iii) resides in the program's service area;

(iv) is assessed by the program's multi-disciplinary team as being medically eligible for a residential health care facility (RHCF) level of care and such assessment has been confirmed by the department or, at the department's direction, the social services district in which the program is located;

(v) is assessed by the program as capable, as of the time of enrollment, of remaining in his or her home in the community without jeopardizing his or her health or safety or the health or safety of others; and

(vi) executes an enrollee agreement and an appropriate form which authorizes the release of medical and financial information to the program.

(2) A person is not eligible to enroll in a program if the program determines that:

(i) the person suffers from a severe and acute psychiatric disorder or from severe mental confusion, either of which presents a danger to the person or to others;

(ii) social, physical, or environmental factors would prevent the person from receiving effective care from the program or would present a danger to the person or to others;

(iii) the person, his or her family, if appropriate, and the program do not agree upon an appropriate plan of care; or

(iv) the person is a hospital in-patient or an RHCF resident on the date that otherwise would be his or her effective date of enrollment in the program, provided that the person may reapply to the program after he or she is discharged from the hospital or RHCF.

(d) Enrollment. (1) A person may be referred to the program by a discharge planner of an RHCF, a general hospital or another entity or by any other referral source. The program's multi-disciplinary team must assess whether a person who seeks enrollment in the program is medically eligible for an RHCF level of care and meets the program's other eligibility criteria. When the program's multi-disciplinary team assesses the person to be medically eligible for the program, it must refer its assessment findings to the department or, at the department's direction, the social services district in which the program is located, for confirmation that the person is medically eligible for an RHCF level of care.

(2) The program must notify the person whether he or she has been accepted for or denied enrollment in the program. The notice must be on a form approved by the department.

(3) A person who has been denied enrollment in the program may request the program to review the denial of enrollment through the program's grievance process. If the person remains dissatisfied at the conclusion of the program's grievance process, he or she may appeal the program's denial of enrollment to the department through the appeals process set forth in subdivision (i) of this section.

(4) A person's enrollment in a program is voluntary. If an otherwise eligible person declines to enroll in the program, the program must refer the person to other appropriate services, which may include the entity that initially referred the person to the program.

(e) Program responsibilities. (1) Generally. The program must coordinate all activities relating to an enrollee's medical care including providing, or arranging for the provision of, management and administrative support services required by paragraph (2) of this subdivision; case management services required by paragraph (3) of this subdivision; and such services listed in paragraph (4) of this subdivision as are required by an enrollee's plan of care.

(2) Management and administrative support services. The program must provide, or arrange for the provision of, the following management and administrative support services:

(i) organizing a network of licensed or certified providers sufficient to provide the services listed in paragraph (4) of this subdivision, which may include a long-term home health care program, a diagnostic and treatment center, and other appropriate providers, and contracting with such providers to furnish medical and health-related services to enrollees;

(ii) submitting providers' payment claims to the appropriate payors and preparing necessary financial reports;

(iii) maintaining referral, enrollment, and disenrollment records;

(iv) monitoring enrollee utilization rates;

(v) establishing and maintaining an enrollee grievance process;

(vi) submitting to the department all enrollment and marketing materials for its review and approval;

(vii) educating the community regarding the program;

(viii) developing and maintaining, in cooperation with the department and the Department of Health, a system for gathering and reporting information necessary to evaluate the program;

(ix) developing and maintaining a quality assurance plan;

(x) providing documentation and such other information to the department as the department may require to determine a person's appeal to the department from the program's denial of enrollment, denial of disenrollment for good cause, or proposed involuntary disenrollment; and

(xi) furnishing such other management and administrative support services as the program and the department may agree to in the contract required by subdivision (b) of this section.

(3) Case management. The program's physicians, nurses, social workers, therapists, home health aides, nutritionists or other professionals must participate in multi-disciplinary teams that provide case management services to all enrollees when the program determines that the participation of such professionals in such teams is appropriate. Case management services include the following services and such other services as the contract required by subdivision (b) of this section may require:

(i) conducting initial assessments of each person's health and social status when he or she is enrolled in the program and conducting reassessments every three months and more frequently when necessary to address changes in the enrollee's health or social status;

(ii) developing and implementing an initial plan of care for each person when he or she is enrolled in the program and a new plan of care every three months or more frequently when necessary. The plan of care must be based on the assessment or reassessment required by subparagraph

(i) of this paragraph and must specify the types of services the enrollee requires, the medical necessity for the services, and the frequency at which the services must be provided; and

(iii) monitoring each enrollee's progress to evaluate whether the services for which the enrollee has been authorized continue to be medically necessary and provided in accordance with the enrollee's plan of care.

(4) Services. (i) The program must provide, or arrange for the provision of, such of the services set forth herein as are medically necessary and required by the contract required by subdivision (b) of this section and by the enrollee's plan of care. These services are defined in accordance with Appendix VI-A of the Program for All-Inclusive Care for the Elderly (PACE) Protocol. Appendix VI-A of the PACE Protocol is published by the Health Care Financing Administration, Office of Research and Demonstrations, Division of Research and Demonstration Systems Support, P.O. Box 11972, Baltimore, Maryland 21207-0972. Copies are available for public use and inspection at the Department of Social Services, 40 North Pearl St., Albany, New York 12243.

(a) acute hospital services, including in-patient and out-patient hospital services;

(b) adult day health care;

(c) ambulance services;

(d) audiology services;

(e) dental services;

(f) dietary services;

(g) durable medical equipment;

(h) in-home services;

(i) laboratory services;

(j) medical specialty services;

(k) medications;

(l) nursing facility services;

(m) nursing services;

(n) occupational, physical, and speech therapy services;

(o) personal care services;

(p) primary care services; and

(q) such other services as are specified in the contract required by subdivision (b) of this section or in Appendix VI-A of the PACE Protocol.

(ii) The program must not directly provide any service for which a license or certificate under Article 28, 36, 40, or any other Article of the Public Health Law is required unless the program is licensed or certified to provide such service. The program must verify that all persons or entities with which it contracts to provide such services are appropriately licensed or certified pursuant to the Public Health Law.

(f) Payment. The contract required by subdivision (b) of this section must specify the capitated payment methodology and rate under which the department will pay the program for services provided to enrollees. In approving such methodology and rate, the department must be satisfied that the program is cost-effective when compared to the cost of services that would otherwise have been provided to program enrollees.

(g) Disenrollment for Good Cause. (1) A person who has been enrolled in a program sponsored by Beth Abraham Hospital, or by a not-for-profit corporation affiliated with such hospital, for 180 or fewer days may disenroll from the program for any reason. A person who has been enrolled in such a program for more than 180 days may disenroll only for good cause, as defined in paragraph (2) of this subdivision. A person who is enrolled in a program sponsored by Rochester Health Care, Inc. or in a program sponsored by other licensed providers may disenroll at any time without cause.

(2) Good cause for disenrollment means:

(i) the program failed to furnish accessible, appropriate, and high quality medical care, services, or supplies to which the enrollee is entitled under the terms of the contract required by subdivision (b) of this section or the enrollee agreement, including, but not limited to the following:

(a) failure to arrange in-patient or out-patient care, consultations with specialists, or laboratory and radiological services when reasonably necessary;

(b) failure to coordinate and interpret any consultation findings with emphasis on continuity of medical care;

(c) failure to arrange for consultation appointments;

(d) failure to arrange for services at locations geographically accessible to the enrollee;

(e) failure to arrange for services with qualified licensed or certified providers; or

(f) failure to appropriately coordinate the enrollee's overall medical care, including periodic examinations, immunizations, and diagnosis and treatment of illness or injury; or

(ii) the program and the enrollee agree that disenrollment would be in the enrollee's best interests.

(3) The program must notify the enrollee of its approval or denial of the enrollee's request to be disenrolled for good cause. The notice must be on a form approved by the department.

(4) An enrollee whose request for disenrollment for good cause has been denied may request the program to review the denial of his or her disenrollment request through the program's grievance process. If the enrollee remains dissatisfied at the conclusion of the program's grievance process, he or she may appeal the program's denial of his or her request for disenrollment for good cause to the department through the appeals process set forth in subdivision (i) of this section.

(h) Involuntary Disenrollment.

(l) The program may involuntarily disenroll an enrollee if the program determines that:

(i) the enrollee moved out of the program's service area or left the program's service area for any reason for more than 30 consecutive days;

(ii) the enrollee failed to pay or make arrangements satisfactory to the program to pay any amount of excess income owed the program within 30 days after such amount is due provided that the program first made a reasonable effort in writing to collect such amount;

(iii) the enrollee has not complied with his or her plan of care or the enrollee, and the enrollee's family if appropriate, and the program do not continue to agree upon an appropriate plan of care;

(iv) the enrollee and his or her program primary care physician or multi-disciplinary team can no longer agree on the enrollee's plan of care;

(v) the enrollee provided the program with false information or otherwise deceived the program or engaged in fraudulent conduct with respect to any aspect of the program;

(vi) the enrollee, any of his or her family members, or others in the enrollee's home, have been abusive to any program personnel;

(vii) the enrollee is no longer eligible for MA or, as may be specified in the contract required by subdivision (b) of this section, is no longer eligible for MA and Medicare;

(viii) the enrollee knowingly failed to complete and submit any consent, release, assignment or other document reasonably requested by the program to obtain services or to ensure payment by Medicare, MA, or another third party;

(ix) the enrollee died;

(x) the program's authorization to provide or arrange for the provision of services or its contracts enabling it to offer services have terminated; or

(xi) the program or the program's contract with the department has terminated for any reason.

(2) (i) The program must promptly notify an enrollee, other than an enrollee who has died, of its intention to disenroll the enrollee involuntarily. The notice must be on a form approved by the department.

(ii) The enrollee may request the program to review the proposed involuntary disenrollment through the program's grievance process. If the enrollee remains dissatisfied at the conclusion of the program's grievance process, he or she may appeal the program's proposed involuntary disenrollment to the department through the appeals process set forth in subdivision (i) of this section; however, an enrollee may not appeal the proposed involuntary disenrollment if the reason for the proposed involuntary disenrollment is that the program or the program' s contract with the department has terminated for any reason. During the pendency of an enrollee's appeal to the department, the program must continue to provide the enrollee with such services as may be included in the enrollee's plan of care.

(i) Appeals to the department. (1) This subdivision sets forth the appeals process by which the following persons may appeal final program grievance determinations to the department:

(i) a person who has been denied enrollment in the program;

(ii) a person whom the program proposes to disenroll involuntarily for a reason other than that the person has died or the program or the program's contract with the department has terminated for any reason; or

(iii) a person whom a program sponsored by Beth Abraham Hospital, or by a not-for-profit corporation affiliated with such hospital, determines to deny disenrollment for good cause.

(2) If a person described in paragraph (1) of this subdivision remains dissatisfied at the conclusion of the program's grievance process, he or she may file a written appeal with the department within 15 days after receiving the program's final written grievance determination. The person's written appeal must include the following information, which the program must assist the person to obtain, if necessary:

(i) the name and address of the person filing the appeal and the date of the program's final written grievance determination;

(ii) the date the person filed a grievance with the program;

(iii) a copy of the program's final written grievance determination;

(iv) if the appeal is from a denial of an enrollee's request for disenrollment for good cause, a description of the circumstances constituting good cause for disenrollment from the program; and

(v) a copy of the program's notice denying the person's request for enrollment or request for disenrollment for good cause or proposing to disenroll the person involuntarily.

(3) The program may prepare a written statement in support of the program's determination to deny the person's request to enroll in, or disenroll for good cause from, the program or in support of the program's determination to disenroll the person involuntarily.

(4) The department must decide appeals within 15 days after receipt and issue a written decision either affirming or reversing the program's determination. The department's decision must fully explain the reasons for the decision and the facts upon which the decision is based.

(5) An appeal to the department under this subdivision is not a fair hearing pursuant to Part 358 of this Title. The commissioner of the department will designate an appeals officer who must decide appeals from final program grievance determinations. A decision of the appeals officer may be appealed by the person or the program pursuant to Article 78 of the Civil Practice Law and Rules.

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Section 505.35 - Assisted living programs.

505.35 Assisted living programs. (a) Purpose and scope. This section sets forth requirements governing the provision of, and payment for, assisted living program services to recipients of Medical Assistance (MA).

(b) Policy. If an MA recipient is eligible for and can be served appropriately and more cost-effectively through the provision of assisted living program services and such services are available, assisted living program services should be used to achieve the maximum reduction in the recipient's need for home health services or other long-term care services.

(c) Definitions. (1) Assisted living program means an entity, as defined in section 485.2(s) and section 494.2(a) of this Title, which has been approved to operate as an assisted living program in accordance with section 485.6(n) of this Title and is operated in accordance with Parts 485, 486, 487, 488 and 494 of this Title.

(2) Unless otherwise defined, all terms have the meanings set forth in Part 494 of this Title.

(d) Scope of services. (1) An assisted living program must provide, or arrange to have provided, to its residents the services specified under section 494.5 of this Title. Those services are subject to reimbursement by the MA program in accordance with the provisions of subdivision (h) of this section.

(2) All services must be provided in accordance with the recipient's plan of care based upon the recipient's initial assessment and periodic reassessments as required under section 494.4 of this Title.

(3) When a reassessment indicates that assisted living program services are no longer appropriate, services must continue to be provided in accordance with the recipient's plan of care based upon the recipient's prior assessment, as required under section 494.4 of this Title, until alternative placement arrangements can be made.

(e) Eligibility. To be eligible to receive assisted living program services, an MA recipient must meet the admission and retention standards specified in section 494.4 of this Title.

(f) Contracts. The assisted living program must have a contract with the social services district in which the assisted living program is operating, in accordance with section 494.4(h) of this Title.

(g) Case management. (1) The contract executed between the assisted living program and the social services district in which the program is operating must provide that the program will assume all responsibility for case management of the residents.

(2) The assisted living program must provide case management services to MA recipients who are receiving assisted living program services. The assisted living program must comply with the case management requirements specified in section 494.6(b) of this Title and must:

(i) receive referrals for assisted living program services and provide information about such services to MA recipients referred to the assisted living program;

(ii) refer an assisted living program applicant who the program reasonably expects may be eligible for MA to the social services district in which the program is located for an MA eligibility determination;

(iii) permit access by an MA recipient to his or her case records maintained by the assisted living program;

(iv) establish linkages to services provided by other community agencies, provide information about these services to MA recipients and establish criteria for referring MA recipients to these services;

(v) to the maximum extent possible, achieve economic efficiencies, including, but not limited to using, shared aides consistent with the assisted living program's staffing standards; and

(vi) arrange for the reduction or discontinuance of an MA recipient's services when the assisted living program reassesses the recipient and determines that the recipient's assisted living program services must be reduced or discontinued.

(h) Payment for assisted living program services. (1) The MA program will pay an assisted living program for services provided to eligible MA recipients who are assisted living program residents at a capitated rate of payment established in accordance with the regulations of the Department of Health, based upon assessments of the recipients conducted pursuant to section 494.4 of this Title. Such capitated rate of payment is payment in full for the following MA services provided to MA recipients:

(i) adult day health care provided in a program approved by the Department of Health;

(ii) home health aide services;

(iii) medical supplies and equipment not requiring prior approval pursuant to this Title;

(iv) nursing services;

(v) personal care services;

(vi) personal emergency response services; and

(vii) physical therapy, speech therapy, and occupational therapy.

(2) Before an assisted living program may begin providing services for which payment will be made under the MA program to an MA recipient, the program must complete, or arrange for the completion of, the assessments and the other pre-admission documentation specified in section 494.4 of this Title.

(3) In accordance with section 494.4(h) of this Title, a copy of the assessments for any MA recipient determined appropriate to participate in the assisted living program must be transmitted to the social services district which is financially responsible for the MA recipient. Within 10 working days of receipt of the assessment from the assisted living program, the social services district must review the assessment and take one of the following actions:

(i) agree with the assisted living program's assessment and arrange for the authorization of the appropriate payment for care for 45 days; or

(ii) conduct its own assessment and based upon the findings of that assessment, agree with the assisted living program's assessment, and arrange for the authorization of the appropriate payment for 45 days; or

(iii) conduct its own assessment and based upon the findings of that assessment, disagree with the assisted living program's assessment and forward both assessments to the local professional director, or designee, for review and final determination of the appropriate payment, which determination must be made within five working days of receipt of the request.

(4) Reassessments for assisted living program services must be conducted, in accordance with the requirements of section 494.4 of this Title, no later than 45 days after a recipient's admission to the assisted living program and as frequently as required to respond to changes in the recipient's condition, but no less frequently than once every six months, in order for an assisted living program to continue to provide services to an eligible MA recipient. The district must review every reassessment that is transmitted by the assisted living program for reauthorization of payment by the MA program.

(5) Within 10 working days of receipt of the request for reauthorization of payment for assisted living program services by the assisted living program, the district must:

(i) agree with the assisted living program's reassessment and arrange for the authorization of payment for care for six months; or

(ii) conduct its own reassessment and based upon the findings of that reassessment, agree with the assisted living program's reassessment, and arrange for the authorization of payment for six months; or

(iii) conduct its own reassessment and, based upon the findings of that reassessment, disagree with the assisted living program's reassessment and forward to the local professional director, or designee, both reassessments for review and final determination of the appropriate payment, which determination must be made within five working days of receipt of the request.

(6) An MA recipient's assisted living program services must not be discontinued solely because the costs of the recipient's care exceed the amount of the capitated payment rate.

(7) The MA program will not make payments for assisted living program services provided to an MA recipient while the recipient is receiving residential health care facility services or in-patient hospital services.

(i) District of fiscal responsibility. The social services district fiscally responsible for furnishing MA is the district in which the ALP resident resided immediately prior to his or her admission to the ALP if the resident was not a recipient of MA at the time of his or her admission, or the district responsible for furnishing MA to the ALP resident immediately prior to his or her admission to the ALP if the resident was a recipient of MA at the time of his or her admission.

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Section 505.37 - Collateral services.

505.37 Collateral services. Collateral services are services that would otherwise be reimbursed as MA services and which are provided to a family member or significant other of an MA recipient, regardless of their eligibility for MA, who has an interim or final individualized family services plan. For purposes of this section, a significant other is a person who substitutes for the recipient's family, interacts regularly with the recipient, and affects directly the recipient's developmental status. Collateral services are physician services, nursing services, nurse practitioner services, audiology services, psychiatric services, psychological services, and rehabilitation services. Payment is available for collateral services furnished pursuant to an interim or final individualized family services plan and which are provided by an approved early intervention program or a municipality in the State. Collateral services must relate to the medical treatment specified in the recipient's interim or final individualized family services plan and must be for the recipient's direct benefit. Persons who receive collateral services must be identified in the interim or final individualized family services plan. Reimbursement for such services must be made in accordance with the provider agreement.

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Section 505.38 - Children’s Behavioral Health and Health Services.

505.38 Children’s Behavioral Health and Health Services.

(a) Purpose: This section promotes the expansion of health and behavioral health services for children/youth under 21 years of age. The New York State Department of Health (DOH), the New York State Office of Mental Health (OMH), the New York State Office of Alcoholism and Substance Abuse Services (OASAS), and the New York State Office of Children and Family Services (OCFS) (the “State Agencies”) shall designate licensed, certified or approved providers to deliver specifically defined services under the Medicaid program.

(b) Services: The following services shall be available to children and youth who are eligible for Medicaid, when provided in accordance with the provisions of this section.

(1) Crisis Intervention (CI) - CI services are provided to a child/youth under age 21, and his/her family/caregiver, who is experiencing a psychiatric or substance use (behavioral health) crisis, and are designed to:

(i) Interrupt and/or ameliorate the crisis experience

(ii) Include an assessment that is culturally and linguistically sensitive

(iii) Result in immediate crisis resolution and de-escalation

(iv) Develop a crisis plan

(2) Other Licensed Practitioner:

(i)  A non-physician licensed behavioral health practitioner (NP-LBHP) is an individual who is licensed and acting within his or her lawful scope of practice under Title VIII of the Education Law and in any setting permissible under State law.

(ii)  Individual Staff Qualifications

(a) NP-LBHPs include the following practitioners; each is permitted to practice independently within his or her scope of practice: 

(1) licensed psychoanalysts;

(2) licensed clinical social workers (LCSWs);

(3) licensed marriage and family therapists; and

(4) licensed mental health counselors.

(b) NP-LBHPs also include licensed master social workers (LMSWs) under the supervision of licensed clinical social workers (LCSWs), licensed psychologists, or psychiatrists.

(3) Community Psychiatric Support and Treatment (CPST): CPST services are goal-directed supports and solution-focused interventions intended to achieve identified goals or objectives as set forth in the child’s/youth’s individualized treatment plan. CPST is designed to provide community-based services to children or youth and their families or caregivers who may have difficulty engaging in formal office settings, but can benefit from community based rehabilitative services. CPST allows for delivery of services within a variety of permissible settings including community locations where the child/youth lives, works, attends school, engages in services (e.g. provider office sites), and/or socializes. This includes the implementation of Evidence Based Practices with approval by the State Agencies.

 (4) Psychosocial Rehabilitation (PSR): PSR services are provided to children or youth and their families or caregivers to implement interventions outlined in the individualized treatment plan to compensate for or eliminate functional deficits and interpersonal and/or environmental barriers associated with a child/youth’s behavioral health needs. The intent of PSR is to restore, rehabilitate, and support a child/youth’s functional level as much as possible and as necessary for the integration of the child/youth as an active and productive member of their community and family with minimal ongoing professional interventions. Activities included must be task oriented and intended to achieve the identified goals or objectives as set forth in the child/youth’s individualized treatment plan.

(5) Family Peer Support (FPS): FPS services are an array of formal and informal services and supports provided to families caring for/raising a child/youth who is experiencing social, emotional, developmental, medical, substance use, and/or behavioral challenges in their home, school, placement, and/or community. FPS services provide a structured, strength-based relationship between a credentialed Family Peer with relevant lived experience as determined appropriate by the State Agencies as defined in subdivision (a) of this section and the parent/family member/caregiver for the benefit of the child/youth. Activities must be task oriented and intended to achieve the identified goals or objectives as set forth in the child/youth’s individualized treatment plan.

(6) Youth Peer Support and Training (YPST): YPST services are youth formal and informal services and supports provided to youth who are experiencing social, emotional, medical, developmental, substance use, and/or behavioral challenges in their home, school, placement, and/or community centered services. These services provide the training and support necessary by a credentialed youth peer with relevant lived experience as determined appropriate by the State Agencies as defined in subdivision (a) of this section to ensure engagement and active participation of the youth in the treatment planning process and with the ongoing implementation and reinforcement of skills learned throughout the treatment processes. YPST activities must be intended to develop and achieve the identified goals and/or objectives as set forth in the youth’s individualized treatment plan. YPST services delivered are based on the individualized treatment plan developed by the licensed practitioner working with the youth.

(c) Provider Qualifications:

(1) Any child serving agency or agency with children’s behavioral health and health experience must have the necessary licensure, certification, designation, or approval from DOH, OMH, OASAS, or OCFS to provide the services authorized by this section.

(2) Any licensed practitioner providing behavioral health or health services authorized under this section must work in a child serving agency or agency with children’s behavioral health and health experience, as described in paragraph (1) of this subdivision.

(3) Crisis Intervention practitioners must work in a child serving agency, or agency with children’s behavioral health and health experience, that obtains or possesses a current license or authorization to provide crisis and/or crisis treatment services, consistent with the requirements of paragraph (1) of this subdivision.

(4) Any organization seeking to provide any service authorized by this regulation and to serve the general population needing mental health services must be licensed or authorized to do so by OMH in addition to obtaining the licensure, certification, designation, or approval described in paragraph (1) of this subdivision.

(5) Any organization seeking to provide any service authorized by this regulation and to serve the general population needing substance use disorder services must be certified, designated or authorized to do so by OASAS in addition to obtaining the licensure, certification, designation, or approval described in paragraph (1) of this subdivision.

(d) Designation of Providers:

(1) As a prerequisite to providing any of the services authorized by this section, a provider must receive a designation from DOH, OMH, OASAS, or OCFS. Being designated to provide services authorized by this section is not a substitute for possessing any required State licensure, certification, authorization or credential, and any such designation may be conditioned upon obtaining or modifying a required licensure, certification, authorization or credential.

(2) To be eligible for designation, a provider must submit an application on a form required by the State agencies and must:

(i) Be enrolled in the Medicaid program prior to commencing service delivery;

(ii) Be a qualified provider as described in subdivision (c) of this section and maintain its license, certification or approval with that state agency;

(iii) Be in good standing according to the standards of each agency by which it is licensed, certified or approved;

(iv) Be a fiscally viable agency;

(v) Meet developed criteria as outlined in the Provider Designation Application guidance and form, including adequate explanation of how the provider meets such criteria; and

(vi) Adhere to the Standards of Care described in the Children’s Health and Behavioral Health Services Transformation Medicaid State Plan Provider Manual for Children’s BH Early and Periodic Screening and Diagnostic Testing (EPSDT) Services which have been incorporated by reference in this Part and have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the document entitled: Children’s Health and Behavioral Health Services Transformation Medicaid State Plan Provider Manual for Children’s BH Early and Periodic Screening and Diagnostic Testing (EPSDT) Services, published in December, 2016, and any subsequent updates.  This document incorporated by reference may be examined at the Office of the Department of State, 99 Washington Ave, Albany, NY 12231 or obtained from the Department of Health, 99 Washington Ave, Albany, NY 12231.

(3) A provider designated to provide services authorized by this section will be assigned a lead State agency (DOH, OASAS, OCFS or OMH), based on the primary population served, location, and indicated line of business on the provider application, which will be responsible, in collaboration with the other State agencies, for monitoring and oversight of the provider.

(4) If a provider is designated to provide Community Support and Treatment services, it may seek approval of the lead State agency and DOH to utilize, in the provision of services, specified evidence-based techniques drawn from cognitive-behavioral therapy and/or other evidence based psychotherapeutic interventions.

(5) Nothing contained herein shall authorize a provider to provide medical services, except as otherwise authorized by law.

(e) Rescinding a designation.

(1) A provider who fails to comply with laws, regulations and policies may have its designation rescinded by the lead State agency, which will consult with the other State agencies before taking such action. The provider has 14 business days to appeal the action to the lead State agency. The lead State agency shall respond with a final decision within 14 business days of appeal.

(2) A provider whose designation was rescinded may apply for redesignation pursuant to subdivision (d) of this section. The provider must show that it corrected the problems that led to the rescission. An on-site and/or desk evaluation may be conducted by the lead State agency prior to approving the redesignation request.

(f) Reimbursement: Reimbursement for children’s behavioral health and health services must be in accordance with the rates established by the Department and approved by the Director of the Division of Budget.

 

Effective Date: 
Wednesday, January 3, 2018
Statutory Authority: 
Public Health Law, Section 201 and Social Services Law, Sections 363-a and 365-a