Section 367-R. Private duty nursing services worker recruitment and retention program

1. The commissioner of health shall, subject  to  the
  provisions of subdivision two of this section and to the availability of
  federal  financial  participation,  increase medical assistance rates of
  payment by three percent for services provided  on  and  after  December
  first,  two  thousand  two,  for  private  duty nursing services for the
  purposes of improving recruitment and retention of private duty nurses.
    1-a. Medically fragile children. In addition, the  commissioner  shall
  further  increase  rates  for  private  duty  nursing  services that are
  provided to medically fragile children to  ensure  the  availability  of
  such  services  to such children. In establishing rates of payment under
  this subdivision, the commissioner shall consider the cost neutrality of
  such rates as related to the cost effectiveness of caring for  medically
  fragile  children  in  a  non-institutional  setting  as  compared to an
  institutional  setting.  Medically  fragile  children  shall,  for   the
  purposes  of  this  subdivision, have the same meaning as in subdivision
  three-a of section thirty-six hundred fourteen of the public health law.
  Such increased rates for services rendered to  such  children  may  take
  into  consideration  the elements of cost, geographical differentials in
  the elements of cost considered, economic factors in the area  in  which
  the  private duty nursing service is provided, costs associated with the
  provision  of  private  duty  nursing  services  to  medically   fragile
  children,  and the need for incentives to improve services and institute
  economies and such increased  rates  shall  be  payable  only  to  those
  private  duty  nurses  who  can  demonstrate, to the satisfaction of the
  department of health, satisfactory training and  experience  to  provide
  services  to  such  children.  Such  increased rates shall be determined
  based on application of the case mix adjustment  factor  for  AIDS  home
  care  program  services  rates  as  determined  pursuant  to  applicable
  regulations of the department of health. The commissioner may promulgate
  regulations to implement the provisions of this subdivision.
    2. Private duty nursing services  providers  which  have  their  rates
  adjusted  pursuant  to  this section shall use such funds solely for the
  purposes of recruitment and retention  of  private  duty  nurses  or  to
  ensure  the  delivery  of  private  duty  nursing  services to medically
  fragile children and are prohibited from using such funds for any  other
  purpose.  Funds provided under this section are not intended to supplant
  support provided by a local government. Each  such  provider,  with  the
  exception  of self-employed private duty nurses, shall submit, at a time
  and in a manner to be  determined  by  the  commissioner  of  health,  a
  written  certification attesting that such funds will be used solely for
  the purpose of recruitment and retention of private duty  nurses  or  to
  ensure  the  delivery  of  private  duty  nursing  services to medically
  fragile children. The commissioner of health is authorized to audit each
  such provider  to  ensure  compliance  with  the  written  certification
  required  by  this  subdivision and shall recoup all funds determined to
  have been used for purposes other  than  recruitment  and  retention  of
  private  duty nurses or the delivery of private duty nursing services to
  medically fragile children. Such recoupment shall be in addition to  any
  other penalties provided by law.
    * NB Effective until January 1, 2011