Section 367-C. Payment for long term home health care programs

1. If a long
  term home health care program as defined under article thirty-six of the
  public  health law is provided in the social services district for which
  he  has  authority,  the  local  social  services  official,  before  he
  authorizes  care  in  a nursing home or intermediate care facility for a
  person eligible to receive services under this title, shall  notify  the
  person in writing of the provisions of this section.
    2.  If  a  person eligible to receive services under the provisions of
  this title who requires care, treatment, maintenance, nursing  or  other
  services  in  a  nursing  home  desires  to  remain and is deemed by his
  physician able to remain in his own home or the home  of  a  responsible
  relative  or  other  responsible  adult  if  the  necessary services are
  provided, such person or his representative shall so  inform  the  local
  social  services  official.  If  a long term home health care program as
  defined under article thirty-six of the public health law is provided in
  the social services district for which he has authority,  such  official
  shall authorize an assessment under the provisions of section thirty-six
  hundred  sixteen  of  the  public  health  law.  If  the  results of the
  assessment indicate that the person can receive the appropriate level of
  care at home, the official shall prepare for that person a plan for  the
  provision  of  services  comparable to those that would be rendered in a
  nursing home. In developing such plan, the official shall  consult  with
  those  persons performing the assessment. The services shall be provided
  by a certified home health agency, hospital, or residential health  care
  facility   authorized  by  the  commissioner  of  health  under  article
  thirty-six of the public health law to provide a long term  home  health
  care  program. At the time of the initial assessment, and at the time of
  each subsequent assessment performed under  the  provisions  of  section
  thirty-six  hundred  sixteen  of the public health law, or more often if
  the person's needs require,  the  official  shall  establish  a  monthly
  budget  in  accordance  with  which  he  shall authorize payment for the
  services provided under such plan. Total monthly expenditures made under
  this title for such person shall not exceed a  maximum  of  seventy-five
  per  cent,  or  such  lesser  percentage  as  may  be  determined by the
  commissioner, of the average of the monthly  rates  payable  under  this
  title  for nursing home services within the social services district for
  which the official has authority. However, if a continuing assessment of
  the person's needs demonstrates that he requires increased services, the
  social services official may authorize the  expenditure  of  any  amount
  accrued  under this section during the past twelve months as a result of
  the expenditures for that person  not  exceeding  such  maximum.  If  an
  assessment  of the person's needs demonstrates that he 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  will  not  exceed  such maximum calculated over a one year
  period, the social services official  may  authorize  payment  for  such
  services.
    3.  If  a  person eligible to receive services under the provisions of
  this  title  who  requires  health  related  care  and  services  in  an
  intermediate  care  facility  desires  to  remain  and  is deemed by his
  physician able to remain in his own home or the home  of  a  responsible
  relative  or  other  responsible  adult  if  the  necessary services are
  provided, such person or his representative shall so  inform  the  local
  social  services  official.   If a long term home health care program as
  defined under article thirty-six of the public health law is provided in
  the social services district for which he has authority,  such  official
  shall authorize an assessment under the provisions of section thirty-six
  hundred  sixteen  of  the  public  health  law.  If  the  results of the

  assessment indicate that the person can receive the appropriate level of
  care at home, the official shall prepare for that person a plan for  the
  provision  of  services comparable to those that would be rendered in an
  intermediate  care facility. In developing such plan, the official shall
  consult with those persons performing the assessment. The services shall
  be provided by a certified home health agency, hospital, or  residential
  health  care  facility  authorized  by  the commissioner of health under
  article thirty-six of the public health law to provide a long term  home
  health  care  program.  At the time of the initial assessment and at the
  time of each subsequent assessment performed  under  the  provisions  of
  section  thirty-six  hundred  sixteen  of the public health law, or more
  often if the person's needs require,  the  official  shall  establish  a
  monthly  budget  in accordance with which he shall authorize payment for
  the services provided under that plan. Total monthly  expenditures  made
  under  this  title  for  such  person  shall  not  exceed  a  maximum of
  seventy-five per cent, or such lesser percentage as may be determined by
  the commissioner, of the average of the monthly rates  paid  under  this
  title  for  the  provision  of  health  related  care  and  services  in
  intermediate care facilities within the  social  services  district  for
  which the official has authority. However, if a continuing assessment of
  the person's needs demonstrates that he requires increased services, the
  social  services  official  may  authorize the expenditure of any amount
  accrued under this section during the past twelve months as a result  of
  the  expenditures  for  that  person  not  exceeding such maximum. If an
  assessment of the person's needs demonstrates that he 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 will not exceed such maximum  calculated  over  a  one  year
  period,  the  social  services  official  may authorize payment for such
  services.
    3-a. (a) Notwithstanding any inconsistent provision of  this  section,
  the commissioner is authorized and directed to establish a demonstration
  program  for  the  purpose  of  determining  the  impact  of raising the
  limitation on expenditures for the delivery of  long  term  home  health
  care  services  to  persons  with  special  needs  as  defined  in  this
  subdivision. Pursuant to such program,  the  commissioner  shall  permit
  local  social  services officials to authorize, at their discretion, and
  only after  a  determination  that  the  maximum  expenditure  available
  pursuant to subdivisions two and three of this section is not sufficient
  to provide or continue to provide long term home health care services to
  persons  with  special  needs, maximum monthly expenditures for services
  under this title to such persons, not to exceed one hundred  percent  of
  the  average  of the monthly rates payable under this title for services
  in a nursing home  or  intermediate  care  facility  within  the  social
  services  district for which the social services official has authority.
  However, if a continuing assessment  of  a  person  with  special  needs
  demonstrates  that  he  requires increased services, the social services
  official may authorize the expenditure of any amount accrued under  this
  section  during  the  past twelve months as a result of the expenditures
  for that person not having exceeded such maximum. If an assessment of  a
  person  with  special  needs  demonstrates  that  he  requires increased
  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 will not exceed such maximum calculated over a
  one year period, the social services official may authorize payment  for
  such services.
    (b)  As used in this subdivision, the term "person with special needs"
  shall mean a person for whom a plan of care has been developed  pursuant

  to subdivision two or three of this section who (1) needs care including
  but  not limited to respiratory therapy, tube feeding, decubitus care or
  insulin therapy which cannot be appropriately  provided  by  a  personal
  care  aide  as defined in regulations issued by the commissioner, or (2)
  has one or more  of  the  following  conditions:  mental  disability  as
  defined  in  section  1.03  of  the  mental hygiene law, acquired immune
  deficiency syndrome, or dementias, including Alzheimer's disease.
    (c) The number of persons with special needs for whom a  local  social
  services  official  may  authorize  payment  for  services  pursuant  to
  paragraph (a) of  this  subdivision  shall  be  limited  to  twenty-five
  percent  of  the total number of persons, all long term home health care
  programs, within a social services district  are  authorized  to  serve;
  provided, however, in any district containing a city having a population
  of one million or more, such limit shall be fifteen percent.
    (d)  In  the event that a district reaches the limitation specified in
  paragraph (c) of this subdivision, the local  social  services  official
  may,  upon  the  approval  of  the  commissioner,  authorize payment for
  services, pursuant to paragraph (a) of this subdivision, for  additional
  persons with special needs.
    4.  Notwithstanding any inconsistent provision of this section, if two
  members of this same household, eligible to receive services under  this
  title,  require  care  and  services  in  either  a  nursing  home or an
  intermediate care facility, and assessments conducted  pursuant  to  the
  provisions  of  this  section indicate that such persons can receive the
  appropriate level of care at home, then such care  may  be  provided  at
  home  where  total  monthly  expenditures made under this title for such
  persons shall not exceed a maximum  of  seventy-five  percent,  or  such
  lesser  percentage  as  may  be  determined  by the commissioner, of the
  monthly rates which would be payable under this title for  both  members
  of  the  household  for  nursing  home and/or intermediate care facility
  services within the social services district.  If  assessments  of  such
  persons'  needs  demonstrate  that they require services the payment for
  which would exceed such  monthly  maximum,  but  it  can  be  reasonably
  anticipated  that  total  expenditures  for  required  services for such
  persons will not exceed the maximum calculated over a one year period, a
  social services official may authorize payment for such services.
    5. If a person eligible to receive services under  the  provisions  of
  this  title  who is medically eligible for care, treatment, maintenance,
  nursing or other services in a nursing home or is medically eligible for
  health related care  and  services  in  an  intermediate  care  facility
  desires  to  and  is deemed by his or her physician able to remain in an
  adult care facility, other than a shelter for adults, which is able  and
  willing  to  retain  such person if the necessary services are provided,
  such person or his or her representatives  shall  so  inform  the  local
  social  services  official.  If  a long term home health care program is
  provided in a social services district, an  official  of  such  district
  shall  authorize  an  assessment  under  the provisions of section three
  thousand six hundred sixteen of the public health law. If the results of
  the assessment indicate that the  person  can  receive  the  appropriate
  level  of care at such location, and meets the appropriate standards for
  continued  stay  for  such  facility  as  are  established  by  law  and
  regulation,  such  official shall prepare for that person a plan for the
  provision of services. In  developing  such  plan,  the  official  shall
  consult  with  those  persons  performing  the  assessment  and with the
  operator of the adult care facility. The services shall be provided by a
  long term home  health  care  program  authorized  pursuant  to  article
  thirty-six   of   the   public   health   law,  provided,  however  that
  notwithstanding the provisions of section  three  thousand  six  hundred

  sixteen  of  such  law,  services  shall  not  be  provided prior to the
  completion of the assessment. At the time of the initial assessment  and
  at the time of each subsequent assessment performed under the provisions
  of  section three thousand six hundred sixteen of the public health law,
  or more  often  if  the  person's  needs  require,  the  official  shall
  establish  a  monthly budget in accordance with which he shall authorize
  payment for the services provided under  that  plan,  provided,  however
  that  no  services shall be authorized in the plan which the operator of
  the facility is required by law and regulation to provide. The long term
  home health care program providing  services  authorized  in  such  plan
  shall  be solely responsible for managing and providing or arranging for
  such authorized services. The operator of the adult care facility  shall
  be  solely  responsible  for managing and providing those services which
  the facility is required by law or regulation to provide.  However,  the
  two  entities  shall  collaborate  to assure coordination. Total monthly
  expenditures made under this title for such person shall  not  exceed  a
  maximum of fifty percent, or such lesser percentage as may be determined
  by the commissioner, of the average of the monthly rates paid under this
  title  for the provision of nursing home services or health related care
  and services in intermediate care facilities, whichever is  appropriate,
  within   the  social  services  district  for  which  the  official  has
  authority. However, if a continuing assessment  of  the  person's  needs
  demonstrates  that  he  or  she  requires increased services, the social
  services official may authorize the expenditure of  any  amount  accrued
  under  this  section  during  the  past twelve months as a result of the
  expenditures  for  that  person  not  exceeding  such  maximum.  If   an
  assessment  of  the  person's needs demonstrates that he or she 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 will not exceed such maximum calculated over a
  one year period, the social services official may authorize payment  for
  such services. The provisions of this subdivision shall not be deemed to
  alter  standards  for  admission to an adult care facility nor shall the
  admission of a person into such facility be contingent on such  person's
  enrollment in a long term home health care program.
    6.  Notwithstanding  any  inconsistent provision of law but subject to
  expenditure limitations of this section, the  commissioner,  subject  to
  the  approval  of  the  state  director of the budget, may authorize the
  utilization of medical assistance funds to pay for services provided  by
  specified  long  term  home  health  care  programs in addition to those
  services included in the medical assistance program under section  three
  hundred  sixty-five-a  of  this  chapter,  so  long as federal financial
  participation is available for such services.  Expenditures  made  under
  this  subdivision  shall  be  deemed payments for medical assistance for
  needy persons and shall be subject to  reimbursement  by  the  state  in
  accordance with the provisions of section three hundred sixty-eight-a of
  this chapter.
    7.  No  social services district shall make payments pursuant to title
  XIX of the federal Social Security  Act  for  benefits  available  under
  title  XVIII  of  such act without documentation that title XVIII claims
  have been filed and denied.
    8. No social  services  district  shall  make  payment  for  a  person
  receiving  a long term home health care program while payments are being
  made for that person for inpatient care in  a  residential  health  care
  facility or hospital.
    9.  The  commissioner, together with the commissioner of health, shall
  submit a report to the governor, president pro tem  of  the  senate  and
  speaker  of  the assembly by the first day of February, nineteen hundred

  eighty, on the implementation of this section. Such report shall include
  a statement of the scope and  status  of  long  term  home  health  care
  programs,   the   extent   to   which   such   programs   have  affected
  institutionalization,  the  costs  associated  with  such  programs, any
  recommendations for legislative action, and such other matters as may be
  pertinent.
    10. This section shall be effective if, and as long as, federal aid is
  available therefor.