New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter E - Medical Care
Article 3 - Policies and Standards Governing Provision of Medical and Dental Care
Part 505 - Charges For Professional Health Services
Section 505.14 - Personal care services
Universal Citation: 18 NY Comp Codes Rules and Regs ยง 505.14
Current through Register Vol. 46, No. 39, September 25, 2024
(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
medically necessary for maintaining an individual's health and safety in his or
her own home, as determined by the social services district or Medicaid managed
care organization in accordance with this section; ordered by a qualified
independent practitioner; based on an assessment of the individual's needs and
of the appropriateness and cost-effectiveness of services specified in
subparagraph (b)(2)(iii) 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 individual meets
applicable minimum needs requirements described in subparagraph (iv) of this
paragraph, and the social services district or Medicaid managed care
organization reasonably expects that the individual'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) Personal care services, including
continuous personal care services and live-in 24-hour personal care services, shall not be authorized to the extent that the social services district or
Medicaid managed care organization determines that any of the services or
supports identified in subclauses (11) through (13) of subdivision
(b)(2)(iii)(a) of this section are available and appropriate to meet the
individual's needs and are cost-effective if provided instead of personal care
services.
(iv) Individuals must
meet minimum needs requirements in accordance with state statute to be eligible
for personal care services. For purposes of this section, minimum needs
requirements means:
(a) for individuals with
a diagnosis by a physician of dementia or Alzheimer's, being assessed in
accordance with subdivision (b) of this section as needing at least supervision
with more than one activity of daily living.
(b) for all other individuals, being assessed
in accordance with subdivision (b) of this section as needing at least limited
assistance with physical maneuvering with more than two activities of daily
living.
(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 more than 12 hours of
personal care services per day on average, including 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
subdivision (b)(2)(v) of this section, must be satisfied.
(iii) The personal care aide may perform
nutritional and environmental support functions and personal care functions for
the recipient and may also assist the recipient to perform such tasks
themselves. Assistance may include supervision and cueing to help the recipient
perform a nutritional and environmental support function or personal care
function if the recipient could not perform the task without such assistance.
Supervision and cueing are not standalone personal care services and may not be
authorized, paid for or reimbursed except for providing assistance with
nutritional and environmental support functions or personal care
functions.
(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.
(7)
Medicaid managed care
organization or MMCO means an entity, other than an
entity approved to operate a Program of All-inclusive Care for the Elderly
(PACE) plan, that is approved to provide medical assistance services, pursuant
to a contract between the entity and the Department of Health, and that is:
(i) certified under article forty-four of the
Public Health Law, or
(ii) licensed
under article forty-three of the Insurance Law.
(8)
Medical assistance or
Medicaid or MA means the program to provide
services and benefits under title 11 or article 5 of the Social Services
Law.
(9)
Activities of
daily living means those activities recognized as activities of daily
living by the evidence based validated assessment tool in accordance with
section 2-a of part MM of chapter 56 of the laws of 2020.
(10) For the purposes of this section
individual and patient are used
interchangeably, except as otherwise dictated by context.
(b) Criteria for the assessment and authorization of services.
(1) The
assessment process includes an independent assessment, a medical examination
and practitioner order, an evaluation of the need and cost effectiveness of
services, the development of the plan of care, and, when required under
paragraph (2) of this subdivision, a referral for an independent review. The
independent assessment, medical examination and independent review panel may
utilize telehealth modalities for all or a portion of such assessments provided
that the individual is given an opportunity for an in-person assessment and
receives any necessary support during the telehealth assessment, which may
include the participation of an on-site representative or
support-staff.
(2) The initial
assessment process shall include the following procedures:
(i) Independent assessment. An assessment
shall be completed by an independent assessor employed or contracted by an
entity designated by the Department of Health to provide independent assessment
services on forms approved by the Department of Health in accordance with the
following:
(a) The independent assessment
must be performed by a nurse with 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 independent assessment shall include
the following:
(1) an assessment of the
functions and tasks required by the individual, including an assessment of
whether the individual meets minimum needs requirements;
(2) a discussion with the individual to
determine perception of his/her circumstances and preferences ; and
(3) An assessment of the potential
contribution of informal caregivers, such as family and friends, to the
individual's care, and shall consider all of the following:
(i) number and kind of informal caregivers
available to the individual ;
(ii)
ability and motivation of informal caregivers to assist in care;
(iii) extent of informal caregivers'
potential involvement;
(iv)
availability of informal caregivers for future assistance; and
(v) acceptability to the individual of the
informal caregivers' involvement in his/her care.
(c) The independent assessment
must assess the individual where the individual is located including the
individual's home, a nursing facility, rehabilitation facility or hospital,
provided that the individual's home or residence shall be evaluated as well if
necessary to support the proposed plan of care and authorization or to ensure a
safe discharge. This provision shall not be construed to prevent or limit the
use of telehealth in the assessment of an individual.
(ii) Independent medical examination and
practitioner order.
(a) Each individual
seeking personal care services must have an examination by a medical
professional employed or contracted by an entity designated by the Department
of Health to provide independent practitioner services.
(b) The medical professional who examines the
individual must be 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.
(c) The medical professional must be
independent with respect to the individual, meaning that medical professional
that conducts the exam must not have established a provider-patient
relationship with the individual prior to the clinical encounter from which the
practitioner order is completed.
(d) The medical professional must examine the
individual and accurately describe the individual's medical condition and
regimens, including any medication regimens and the individual's need for
assistance with personal care services tasks.
(e) The medical professional must review the
independent assessment and may review other medical records and consult with
the individual's providers and others involved with the individual's care if
available to and determined necessary by the medical professional.
(f) The medical professional must complete a
form required or approved by the Department of Health (the "practitioner order
form").
(g) The medical
professional must sign the practitioner order form, certify that the
information provided in the form accurately describes the individual's medical
condition and regimens at the time of the medical examination, and indicate
whether the individual is self-directing and whether the individual is
medically stable.
(h) The
practitioner order form must be completed and made available by the medical
professional to the social services district or any MMCOs as appropriate after
the medical examination and independent assessment.
(i) The practitioner order is subject to the
provisions of Parts 515, 516, 517 and 518 of this title. These Parts permit the
Department of Health or other agencies or organizations duly authorized or
delegated by the Department of Health, including but not limited to MMCOs or
the Office of the Medicaid Inspector General, 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 individuals' documented medical needs are
provided or ordered.
(iii) Social services district or MMCO
responsibilities .
(a) Before developing a
plan of care or authorizing personal care services, a social services district
or MMCO shall review the individual's most recent independent assessment and
practitioner order, and may directly evaluate the individual, to determine the
following:
(1) whether personal care services
can be provided according to a plan of care, whether such services are
medically necessary and whether the social services district or MMCO reasonably
expects that such services can maintain the individual's health and safety in
his or her home, as determined in accordance with the regulations of the
Department of Health;
(2) the
frequency with which nursing supervision would be required to support services
if authorized;
(3) the individual's
preferences and social and cultural considerations for the receipt of
care;
(4) whether the individual
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;
(5) whether the functional
needs, living arrangements and working arrangements of an individual who
receives personal care services solely for monitoring the individual'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;
(6) whether the
functional needs, living arrangements and working arrangements of the
individual can be maintained appropriately and more cost-effectively by
personal care services provided by shared aides in accordance with subdivision
(k) of this section;
(7) whether an
individual 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 individual, can be served appropriately and more
cost-effectively through the provision of home health services in accordance
with section
505.23 of
this Part;
(8) whether the
individual can be served appropriately and more cost-effectively by other
long-term care services and supports, including, but not limited to, the
assisted living program or the enriched housing program;
(9) 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 or social adult day care
program ;
(10) whether the
individual's needs can be met through the use of telehealth services that can
be demonstrated and documented to reduce the amount of services needed and
where such services are readily available and can be reliably
accessed;
(11) whether the
individual 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;
(12) whether the
individual's needs can by met through the provision of formal services provided
or funded by an entity, agency or program other than the medical assistance
program; and
(13) whether the
individual's needs can be met through the voluntary assistance available from
informal caregivers including, but not limited to, the individual's family,
friends or other responsible adult, and whether such assistance is
available.
(b) The
social services district or MMCO must first determine whether the individual,
because of the individual'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 individuals who would be otherwise eligible
for personal care services, the social services district must then determine
whether, and the extent to which, the individual can be served through the
provision of services described in clauses ( a)( 4) through ( a)( 13) of
this subparagraph.
(1) If a social services
district or MMCO determines that an individual can be served appropriately and
more cost-effectively through the provision of services described in clauses (
a)( 4) through ( a)( 10) of this subparagraph, and the social services
district or MMCO determines that such services are available in the district,
the social services district or MMCO must consider the use of such services in
accordance with department guidance as well as the individual's identified
preferences and social and cultural considerations described in clause ( a)( 3
) of this subparagraph in developing the individual's plan of care..
(2) If a social services district or MMCO
determines that other formal services are available or the individual's needs
can be met using available adaptive or specialized medical equipment or
supplies or voluntary assistance from informal caregivers, as described in
clauses ( a)( 11) through (a)(13) of this subparagraph, the social services
district or MMCO must include these in the individual's plan of care. To ensure
availability of voluntary informal supports, the social services district or
MMCO must confirm the caregiver's willingness to meet the identified needs in
the plan of care for which they will provide assistance.
(c) For cases involving live-in 24-hour
personal care services, the social services district or MMCO shall evaluate
whether the individual's home has sleeping accommodations for a personal care
aide. When the individual's home has no sleeping accommodations for a personal
care aide, continuous personal care services must be authorized for the
individual ; however, should the individual's circumstances change and sleeping
accommodations for a personal care aide become available in the individual's
home, the district or MMCO must promptly review the case. If a reduction of the
individual's continuous personal care services to live-in 24-hour personal care
services is appropriate, the district or MMCO must send the individual a timely
and adequate notice of the proposed reduction.
(d) For cases involving continuous personal
care services or live-in 24-hour personal care services, the social services
district or MMCO shall assess and document in the plan of care the following:
(1) whether the practitioner order indicated
a medical condition that causes the individual to need frequent assistance
during a calendar day with toileting, walking, transferring, turning and
positioning, or feeding;
(2) the
specific personal care functions with which the individual needs frequent
assistance during a calendar day;
(3) the frequency at which the individual
needs assistance with these personal care functions during a calendar
day;
(4) whether the individual
needs similar assistance with these personal care functions during the
individual's waking and sleeping hours and, if not, why not; and
(5) 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.
(e) The social services district or MMCO is
responsible for developing a plan of care in collaboration with the individual
or, if applicable, the individual's representative that reflects the
assessments and practitioner order described in this paragraph. In the plan of
care, the social services district or MMCO must identify:
(1) the personal care service functions or
tasks with which the individual needs assistance;
(2) the amount, frequency and duration of
services to be authorized to meet these needs;
(3) how needs are met, if not met through the
authorization of services; and
(4)
any other descriptions and documentation provided for in this
section.
(f) Upon the
development of a plan of care, the social services district or MMCO shall refer
high needs cases described in subparagraph (v) of this paragraph to the
independent review panel; provided, however, that an MMCO should not refer a
case unless and until the individual is enrolled or scheduled for enrollment in
the MMCO. When a case is referred to the independent review panel:
(1) the social services district or MMCO
shall provide the individual's plan of care and any clinical records or other
documentation used to develop the plan of care, such as records from treating
providers and the results of any review or evaluation performed pursuant to
this paragraph to the panel;
(2)
the social services district or MMCO shall cooperate with the panel as
appropriate to ensure an expedient review of each high needs case;
and
(3) the social services
district or MMCO shall consider the panel's recommendation in finalizing the
plan of care and authorization. However, the social services district or MMCO
is not required to adopt the recommendation, either in full or in part, and
retains responsibility for determining the amount and type of services
medically necessary.
(iv) Coordinating the independent assessment,
practitioner order and LDSS or MMCO responsibilities.
(a) The social services district or MMCO must
coordinate with the entity or entities providing independent assessment and
practitioner services to minimize the disruption to the individual and in-home
visits.
(b) The social services
district or MMCO must inform the entity or entities providing independent
assessment and practitioner services when a new assessment or practitioner
order is needed pursuant paragraphs (4)(xii) and (4)(xiii) of this subdivision,
in accordance with department guidance, using forms as may be required by the
department.
(1) When the social services
district or MMCO receives an initial or new request for services it shall refer
the individual to the entity providing independent assessment services and
provide assistance to the individual in making contact in accordance with
department guidance; provided however that the social services district or MMCO
may not pressure or induce the individual to request an assessment
unwillingly.
(2) If needed, the
MMCO shall also refer the individual to the social services district to
determine the individual's eligibility for medical assistance, including
community based long term care services.
(c) The entity or entities providing
independent assessment or practitioner services may request that the social
services district or MMCO confirm or update an individual's record in the
assessment database designated by the Department. The social services district
or MMCO shall respond within one business day and confirm or update the
relevant record within three business days after receipt of request.
(d) Resolving mistakes and clinical
disagreements in the assessment process.
(1)
If the social services district or MMCO identifies a material mistake in the
independent assessment that can be confirmed by the submission of evidence, the
social services district or MMCO shall advise the independent assessor. A
mistake is an error of fact or observation that occurred when the assessment
was performed that is not subject to the assessor's clinical judgment. A
mistake is material when it would affect the amount, type, or duration of
services authorized. When identifying the mistake, the social services district
or MMCO must provide evidence of the mistake to the independent assessor. The
independent assessor shall promptly issue a corrected assessment or schedule a
new assessment in accordance with subclause (3) of this clause as
appropriate.
(2) After reviewing
the independent assessment, practitioner order and the result of any social
service district or MMCO assessment or evaluation, if the social services
district or MMCO has a material disagreement regarding the outcome of the
independent assessment, the social services district or MMCO may advise the
independent assessor. A disagreement occurs when the social services district
or MMCO disputes a finding or conclusion in the independent assessment that is
subject to the independent assessor's clinical judgment. A disagreement is
material when it would affect the amount, type, or duration of services
authorized. When submitting a disagreement to the independent assessor, the
social services district or MMCO must provide the clinical rationale that forms
the basis for the disagreement.
(3)
Upon submission of a material disagreement, an independent assessor shall
schedule and complete a new assessment within 10 days from the date it receives
notice from the social services district or MMCO. This shall not pend or
otherwise affect the timeframes within which the social services district or
MMCO is required to make a determination, provide notice, or authorize
services.
(e) Sanctions
for failure to cooperate and abuse of the resolution process.
(1) The Department of Health may impose
monetary penalties pursuant to Public Health Law section 12 for failure to
coordinate with the entity or entities providing independent assessment and
practitioner services in accordance with the provisions of clauses (a) through
(c) of this subparagraph or engaging in abusive behavior that affects the
coordination of the assessment process. In determining whether to impose a
monetary penalty and the amount imposed, the Department shall consider, where
applicable, the following:
(i) The frequency
and numerosity of violations, both in absolute terms and relative to other
MMCOs;
(ii) The responsiveness of
the MMCO to requests for coordination;
(iii) The history of coordination between the
MMCO and the entity or entities;
(iv) The good faith demonstrated by the MMCO
in attempting to coordinate;
(v)
Whether the MMCO provides a justification for the violation and whether it has
merit, as determined by the Department;
(vi) Whether the violation resulted or could
have resulted in injury or other harm to the individual; and
(vii) Other relevant facts or
circumstances.
(2) The
Department of Health may revoke, or impose other restrictions on, a social
services district's or MMCO's privilege to request reassessments on the basis
of a material disagreement where the Department determines that the social
services district has abused this privilege, including the use of mistake
process for issues subject to clinical judgment or pressuring or inducing
individuals to request a new assessment. In determining whether a social
services district or MMCO has abused this privilege, the Department shall
consider, where applicable, the following:
(i) The frequency and numerosity of
disagreements, mistakes, and reassessment requests submitted to the independent
assessor, both in absolute terms and relative to other social services
districts and MMCOs;
(ii) Whether
the clinical rationale provided for the disagreement has merit, as determined
by the Department;
(iii) Whether
the disagreement, mistake, and reassessment requests are made as a matter of
course, instead of upon review of the clinical record;
(iv) The outcome of the reassessment as
compared to the assessment it replaces; and
(v) Other facts or circumstances that tend to
provide evidence for or against abuse.
(3) Nothing in this section shall be
construed to limit the authority of the Department or other agencies to seek
other remedies, sanctions or penalties, including other monetary
penalties.
(v) Independent medical review of high needs
cases.
An independent medical review of a proposed plan of care shall be obtained before a social services district or MMCO may authorize more than 12 hours of personal care services or consumer directed personal assistance separately or in combination per day on average, except as otherwise provided in paragraph (4) of this subdivision ("high needs cases"). The review shall result in a recommendation made to the social services district or MMCO, as described in this subparagraph.
(a)
The independent medical review must be performed by an independent panel of
medical professionals, or other clinicians, employed by or under contract with
an entity designated by the Department of Health (the "independent review
panel") and shall be coordinated by a physician (the "lead physician") who
shall be selected from the independent review panel. The lead physician may not
be the same person who performed the initial medical examination an signed the
individual's practitioner order.
(b) The lead physician must review the
independent assessment, the practitioner order, any other assessment or review
conducted by the social services district or MMCO, including any plan of care
created.
(c) The lead physician may
evaluate the individual, or review an evaluation performed by another medical
professional on the independent review panel. The medical professional may not
have performed the initial medical examination or signed the individual's
practitioner order.
(d) The lead
physician and panel members may consult with or interview other members of the
independent review panel, the ordering practitioner, the individual's treating
or primary care physician, and other individuals who the lead physician deems
important and who are available to assist the panel's review and
recommendation.
(e) The lead
physician and panel members may request additional information or
documentation, including medical records, case notes, and any other material
the lead physician deems important to assist the panel's review and
recommendation.
(f) After review,
the independent review panel shall produce a report, signed by the lead
physician, providing a recommendation on the reasonableness and appropriateness
of the proposed plan of care to maintain the individual's health and safety in
his or her own home, in accordance with the standards and scope of services set
forth in this section. The report may suggest modifications to the plan of
care, including the level, frequency, and duration of services and whether
additional, alternative, or fewer services would facilitate the provision of
medically necessary care. The report may not, however, recommend a specific
amount or change in amount of services.
(3) Timeframes for the assessment and
authorization of services
(i) The independent
assessment and practitioner order processes shall be completed at least
annually and in sufficient time such that social services districts and MMCOs
may have an opportunity when needed to comply with all applicable federal and
state timeframes for notice and determination of services, including but not
limited to immediate needs.
(ii) A
social services district must make a determination and provide notice with
reasonable promptness, not to exceed seven business days after receipt of both
the independent assessment and practitioner order, or the independent review
panel recommendation if applicable, 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, or as provided in paragraphs
(6) and (7) of this subdivision.
(iii) An MMCO must make a determination and
provide notice to current enrollees within the timeframes provided in the
contract between the Department of Health and the MMCO, or as otherwise
required by Federal or state statute or regulation.
(4) Authorization and reauthorization
criteria .
(i) An individual's eligibility
for medical assistance and services, including the individual's financial
eligibility and eligibility for personal care services provided for in this
section, shall be established prior to the authorization for services. The
entity designated by the Department of Health to provide independent assessment
services shall be responsible for determining whether individuals meet minimum
needs requirements for services.
(ii) The authorization for personal care
services shall be completed by the social services district or MMCO prior to
the initiation of services. In the case of the social services district, the
authorization of services shall be prepared by staff of the social services
district and such responsibility may not be delegated to another person or
entity.
(iii) The authorization and
reauthorization of personal care services, including the level, amount,
frequency and duration of services, by the social services district or MMCO
must be based on and reflect the outcome of the assessment process outlined in
paragraph (2) of this subdivision except as otherwise provided for in
subparagraphs (xii) and (xiii) of this paragraph.
(iv) The social services district or MMCO may
authorize only the hours or frequency of services actually required by the
individual.
(v) The duration of
the authorization period shall be based on the individual's needs as reflected
in the required assessments and documented in the plan of care . In determining
the duration of the authorization period, the following shall be considered:
(a) the individual'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 individual's
needs.
(vi) The social
services district or MMCO may not authorize more than 12 hours of personal care
services per day on average prior to considering the recommendation of the
independent review panel in accordance with procedures outlined in paragraphs
(2)(iii) and (2)(v) of this subdivision, unless such authorization is ordered
pursuant to a fair hearing decision or by another court of competent
jurisdiction. Pending review of the independent review panel's recommendation
and if necessary to comply with federal or state timeliness requirements,
including immediate needs cases, the social services district or MMCO may
authorize and implement services based on a temporary plan of care which
provides for more than 12 hours of personal care services per day on
average.
(vii) No authorization for
personal care services shall exceed 12 months from the date of the most recent
independent assessment or practitioner order, whichever is earlier .
(viii) Requirements for the continuation,
denial, or discontinuance of services.
(a)
The social services district or MMCO 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 or MMCO 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 or MMCO must
notify the client in writing of its decision to authorize, reauthorize,
increase, decrease, discontinue or deny personal care services . The Department
of Health may require the use of forms it develops or approves when providing
such notice.
(c) The social
services district's or MMCO's reasons for its determination to deny, reduce or
discontinue personal care services must be stated in the client notice.
(1) Social services districts and MMCOs that
deny, reduce or discontinue services based on medical necessity in accordance
with clause (a) of this subparagraph must identify and document in the notice
and in the client's plan of care the factors that demonstrate such services are
not medically necessary or are no longer medically necessary. Any such denial
or reduction in services must clearly indicate a clinical rationale that shows
review of the client's specific clinical data and medical condition; the basis
on which the client's needs do not meet specific benefit coverage criteria, if
applicable; and be sufficient to enable judgment for possible appeal.
(2) 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 reasonably 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 reasonably 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) the
client's needs may be met, in whole or part, by a technological development,
which the notice must identify, renders certain services unnecessary or less
time-consuming, including the use of readily available telehealth services or
assistive devices that are accessible to the individual and that can be
demonstrated and documented to reduce the amount of services that are medically
necessary ;
(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 either the client is not
seeking to transition into a less restrictive setting or whose health and
safety cannot be reasonably assured in a less restrictive setting ;
(viii) the client can be more appropriately
and cost-effectively served through other Medicaid programs or services, which
the notice must identify ; and
(ix)
the client's need(s) can be met either without services or with the current
level of services by fully utilizing any available informal supports, or other
supports and services, that are documented in the plan of care and identified
in the notice.
(3)
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 or
MMCO determines that the personal care services provided under the last
authorization or reauthorization are no longer appropriate or can be provided
in fewer hours. This includes but is not limited to cases in which: the
client's health and safety can no longer be reasonably 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; the services the client needs exceed the personal care
aide's scope of practice ; or voluntary informal supports that are acceptable
to the client have become available to meet some or all of the client's needs .
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) the
client's needs may be met, in whole or part, by a technological development,
which the notice must identify, that renders certain services unnecessary or
less time-consuming including the use of telehealth services or assistive
devices that can be demonstrated and documented to reduce the amount of
services that are medically necessary ;
(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 either the client is not seeking to transition into a less
restrictive setting or whose health and safety cannot be reasonably assured in
a less restrictive setting ;
(vi)
the client can be more appropriately and cost-effectively served through other
Medicaid programs and services, which the notice must identify ;
(vii) an assessment of the client's needs
demonstrates that the immediately preceding social services district or MMCO
authorized more services than are medically necessary following any applicable
continuity of care period required by the Department of Health.
(d) The social services
district or MMCO 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, the State or
MMCO 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.
(ix) When services are authorized, the local
social services department or MMCO shall provide the agency or person providing
services, the individual 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. The individual shall be given a copy of the plan of
care.
(x) 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 or MMCO.
(xi) Reauthorization for personal care
services shall follow the procedures outlined in paragraph 2 of this
subdivision, with the following exceptions:
(a) 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 individual's needs have been adequately
met during the initial authorization period.
(b) Where an independent review panel
previously reviewed a high need case, reauthorization of services shall not
require another panel review for as long as the case remains a high needs. If
service levels are reduced below the high needs threshold and subsequently
increased to become a high needs case again, another review by the independent
review panel is required.
(c)
Neither an independent assessment nor a practitioner order shall be required to
reauthorize or continue an authorization of services, except:
(1) prior to or in conjunction with a
discharge from an institutional or in-patient setting, provided that this
provision shall not be construed to prohibit a safe discharge from
occurring;
(2) as provided in
subparagraph (xii) of this paragraph;
(3) that an individual in receipt of services
may request a new independent assessment; and
(4) an individual in receipt of services must
receive an independent assessment and practitioner order at least annually to
maintain authorization.
(xii) Upon becoming aware of an unexpected
change in the individual'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 or MMCO shall make necessary changes in the authorization on
a timely basis in accordance with the following procedures:
(a) When the change in the individual's
services needs results solely from a change in the individual's social
circumstances including, but not limited to, loss or withdrawal of support
provided by informal caregivers, the local social services department or MMCO
shall review the independent assessment, document the individual's social
circumstances and make changes in the authorization as indicated. A new
practitioner order and independent assessment shall not be required.
(b) When the change in the individual's
services needs results from a change in the individual's mental status
including, but not limited to, loss of his/her ability to make judgments, or
from a change in his/her medical condition, the local social services
department or MMCO shall obtain a new independent assessment, practitioner
order and, if required, refer the case to the independent review panel.
(xiii) When there is
any change in the individual's service needs, a social services district or
MMCO shall consider such changes and document them in the plan of care, and
shall consider and make any necessary changes to the authorization.
(5) 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.
(6) 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 statement of
need for personal care services from a physician with direct knowledge of the
applicant's condition on a form required by the Department of Health ;
and
(ii) a signed attestation on a
form required by the Department of Health 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 Medicaid coverage of community-based long
term care services.
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 An 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 An applicant submits an incomplete
Medicaid application together with the physician's statement 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 An applicant
submits an incomplete Medicaid application and subsequently submits the
physician's statement, 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 statement
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 12 calendar days after receipt of
a complete Medicaid application from such an applicant, the social services
district must:
(a) refer the applicant for an
independent assessment and medical exam and evaluate his or her need for other
services pursuant to paragraphs (2)(i) through (2)(v) 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, including Medicaid coverage of community-based longterm care
services; 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.
(7) 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
(1) of this clause 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 (6) of this
subdivision who was determined, pursuant to such paragraph, to be eligible for
Medicaid, including Medicaid coverage of community-based longterm 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 statement of need for personal care services from a physician with direct
knowledge of the recipient's condition on a form required by the Department of
Health ; and
(ii) a signed
attestation on a form required by the Department of Health 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
statement and signed attestation of immediate need, but no later than 12
calendar days after receipt of such documentation, must:
(1) refer the applicant for an independent
assessment and medical exam and evaluate his or her need for other services
pursuant to paragraphs (2)(i) through (2)(v) 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.
(8) Prior to October 1, 2022, and
notwithstanding provisions of this section to the contrary, where the
Department of Health has not contracted with or designated an entity or
entities to provide independent assessment or practitioner services, or where
there is limited access to timely assessments and medical exams in accordance
with this subdivision, as determined by the Department of Health, then, in
accordance with written direction from the Department of Health, assessments
may be performed by the social services district or MMCO in accordance with the
provisions of this section in effect as of January 1, 2021. The Department may
limit such directive to a particular geographic region or regions based on the
need for timely assessment and medical exams and may require that social
services districts and MMCOs first attempt assessment and authorization
pursuant to the provisions of this subdivision currently in effect.
Notwithstanding the forgoing, upon becoming effective, the provisions of
subparagraph (viii) of paragraph (4) of this subdivision shall remain in
effect, and may not be pended pursuant to this paragraph.
(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 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.
(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 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 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 is 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 I (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 a condition
of initial or 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 semi-annually 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 of 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 subparagraph (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
(c)(1) or (2) 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)(2)(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
Medicaid, including community-based long term care services ;
(ii) informing the patient or the patient's
representative that an independent assessment and a practitioner's order is
needed, referring the individual for assessment, and assisting the individual
to connect with the independent assessment entity ;
(iii) coordinating with the entity or
entities designated to provide independent assessment and independent
practitioner services as may be needed to ensure that individuals are assessed
in accordance with subdivision (b) of this section ;
(iv) assessing the appropriateness and
cost-effectiveness of the services specified in subparagraph (b)(2)(iii) of
this section;
(v) forwarding the
independent assessment, practitioner order, plan of care, and materials used in
determining the plan of care and authorization required by subparagraph
(b)(2)(iii) of this section and any other information as may be required by the
Department of Health for an independent medical review according to
subparagraph (b)(2)(v) of this section;
(vi) negotiating with informal caregivers to
encourage or maintain their involvement in the patient's care;
(vii) developing and maintaining the
individual's plan of 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
independent review panel recommendation ;
(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 ;
(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) and (vii) of this section;
(xv) allowing access by the patient to his or
her written records, including practitioners' orders and 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)(4)(xii) 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 practitioner orders;
(ii) the independent assessment in
subparagraph (b)(2)(i) of this section ;
(iii) the assessments of the appropriateness
and cost-effectiveness of the services specified in subparagraph (b)(2)(iii) of
this section;
(iv) for a patient
whose case must be referred to the independent review panel in accordance with
subparagraph (b)(2)(v) of this section, a record that the practitioner order,
the independent assessment, and the assessments required by subparagraph
(b)(2)(iii) of this section were forwarded to the independent review panel
;
(v) for a patient whose case must
be referred to the independent review panel in accordance with subparagraph
(b)(2)(v) of this section, a copy of the panel's recommendation;
(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 nonself-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
social services district or MMCO.
(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 will be 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 included in 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 1, 1994.
(i) Providers' submission of required cost
reports.
(a) Providers with cost experience.
(1) 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 reports 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 report specifies otherwise.
(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.
(1) Medical assistance payments to personal
care services providers for any rate year beginning on or after January 1,
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 nonpersonnel 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 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 1, 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 1-14, 21-23 and 26 of
such manual, as revised effective January 1, 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-in-law, 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 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 a rate determination 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 3614-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 expense. 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 1, 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
1, 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
(a)(4) of this subparagraph.
(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 phrases
(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 subparagraph
(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 30 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.
(1) 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.
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