the health systems agency involved, the state council shall afford them an opportunity to request a public hearing in which each such agency and the applicant shall have the right to participate; provided, however, that the council may take action without the advice of the health systems agency whenever such agency has not submitted such advice within the time period applicable to the review of such application.

At

as

No

§ 6. Subdivision (c) of section 2904-b of the public health law, as amended by chapter 554 of the laws of 1989, is amended to read follows: (c) The members of the board of directors of each health systems agency shall be broadly representative of the area served by the agency. least sixty percent of such membership shall be nominated by local governments, local provider organizations and local community organizations. Members of the board shall have fixed terms of three years. person appointed after March first, nineteen hundred ninety, shall be a member of the board of a health systems agency for more than six years in any period of twelve consecutive years. Persons appointed as board members prior to March first, nineteen hundred ninety shall be eligible to serve a full term subject to the conditions and limitations of this section. Board membership shall be reflective of the diversity of each area's population including but not limited to the various geographic characteristics and population density of each health system agency area. A majority of the members shall not be providers of health care services. An employee who participates in the management of a health benefit plan may serve as a member representing employers or unions. member may participate or vote in agency proceedings involving an individual provider, purchaser, or patient, or a specific activity or transaction, if the member has a financial interest in the outcome of the board's proceedings other than as an individual consumer of health care services.

No

§ 7. Paragraphs 1 and 5 of subdivision (d) of section 2904-b of the public health law, paragraph 1 as added by chapter 83 of the laws of 1983 and paragraph 5 as amended by chapter 554 of the laws of 1989, are amended to read as follows:

(1) recommend to the appropriate authority approval or disapproval of applications for the establishment or construction of a hospital, the certification of home health agencies, and the authorization to provide a long term home health care program; provided, however, that any such studies or activities conducted by the agency preparatory to such approval or disapproval shall not include any such study or activity regarding financial feasibility, character or competence, or architectural or technical analysis;

(5) perform [special studies and], as an adjunct to the health systems agency's health planning activity, limited special studies and engage in [other] planning and implementation activities including the collection of relevant data and information regarding the health care system of each agency's area;

§ 8. Section 2904-b of the public health law, is amended by adding a new subdivision (i) to read as follows: (i) Local contributions shall not be permitted from organizations or individuals, including but not limited to, a health care provider subject to the provisions of article twenty-eight, thirty-six or forty-four of this chapter, who are subject to review by the health systems agency. Provided, however, however, that this prohibition shall not apply to local governments or to associations representing health care providers as described herein.

§ 9. Intentionally omitted.

§ 10. Notwithstanding any inconsistent provision of law, the sum of two million two hundred fifty thousand dollars ($2,250,000) shall be reallocated from funds otherwise to be distributed in accordance with subparagraph (i) of paragraph (f) of subdivision 19 of section 2807-c of the public health law and credited to funds available for distribution pursuant to subparagraph (ii) of paragraph (f) of subdivision 19 of section 2807-c of the public health law; provided, however, that solely for the purpose of the calculations pursuant to subdivisions (a), (b) and (c) of section 11 of chapter 703 of the laws of 1988, such reallocated funds shall be deemed distributed in accordance with subparagraph (i) of paragraph (f) of subdivision 19 of section 2807-c of the public health law.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

§ 11. Paragraph (f) of subdivision 19 of section 2807-c of the public health law is amended by adding a new subparagraph (v) to read as follows:

(v) Notwithstanding any inconsistent provision of this section, the commissioner shall allocate and distribute four million five hundred thousand dollars to health systems agencies of funds otherwise available for distribution in accordance with subparagraph (ii) of this paragraph as follows:

any

(A) The sum of two million nine hundred twenty-five thousand dollars for per capita support of health systems agencies. Notwithstanding inconsistent provision of law, no health systems agency shall receive less than two hundred fifty thousand dollars annually from such per capita allocation. A health systems agency receiving the minimum level of funding provided pursuant to a per capita formula shall also be entitled to receive matching support;

(B) The sum of one million five hundred seventy-five thousand dollars for matching support for other contributions received by health systems agencies from qualified sources as determined by the commissioner.

§ 12. Subdivision 2 of section 3614-a of the public health law, as amended by chapter 41 of the laws of 1992, is amended to read as follows:

2. (a) (i) For certified home health agencies the assessment shall be six-tenths of one percent of each certified home health agency's gross receipts received from all patient care services and other operating income on a cash basis beginning January first, nineteen hundred ninety

one for home care services.

(ii) For certified home health agencies there shall be an additional assessment which shall be three-tenths of one percent of each certified home health agency's gross receipts received from all patient care services and other operating income on a cash basis. The assessment year shall be April first, nineteen hundred ninety-two to March thirty-first, nineteen hundred ninety-three. The agencies shall file the assessment return with any balance due or any refund claimed by May first, nineteen hundred ninety-three. The agencies shall make estimated payments on a monthly basis starting August fifteenth, nineteen hundred ninety-two and continuing on the fifteenth of each month through March fifteenth, nineteen hundred ninety-three. Each estimated payment shall equal oneeighth of the total estimated for the assessment year. If the total of estimated payments is less than ninety-five percent of the actual payment due, the agency shall pay a penalty of fifteen percent of the difference due for each month in addition to the amount due.

(b) (i) For providers of long term home health care programs the assessment shall be six-tenths of one percent of each provider's gross receipts received from all patient care services and other operating income on a cash basis beginning January first, nineteen hundred ninetyone for long term home health care services.

(ii) For providers of long term home health programs there shall be an additional assessment which shall be three-tenths of one percent of each provider of long term home health care's gross receipts received from all patient care services and other operating income on a cash basis. The assessment year shall be April first, nineteen hundred ninety-two to March thirty-first, nineteen hundred ninety-three. The providers shall file the assessment return with any balance due or any refund claimed by May first, nineteen hundred ninety-three. The providers shall make estímated payments on a monthly basis starting August fifteenth, nineteen hundred ninety-two and continuing on the fifteenth_of each month through March fifteenth, nineteen hundred ninety-three. Each estimated payment shall equal one-eighth of the total estimated for the assessment year. If the total of estimated payments is less than ninety-five percent of the actual payment due, the provider shall pay a penalty of fifteen percent of the difference due for each month in addition to the amount due. § 13. Subdivision 11 of section 3614-a of the public health law is amended by adding a new paragraph (d) to read as follows: (d) The amount of the additional assessments collected from certified home health agencies and long term home health care programs providers pursuant to subparagraph (ii) of paragraph (a) and subparagraph (ii) of paragraph (b) of subdivision two of this section in excess of two million seven hundred ten thousand dollars from certified home health agencies and long term home health care programs pursuant to subdivision two of section thirty-six hundred fourteen-b of this article for the period commencing April first, nineteen hundred ninety-two through March thirty-first, nineteen hundred ninety-three shall be refunded by the

commissioner based on the ratio which a certified home health agency's or long term home health care program's additional assessments for such period bears to the total of all additional assessments for such period paid by such providers of services.

§ 14. Clause (iii) of paragraph (d) of subdivision 6 of section 367-a of the social services law shall be deemed to be suspended and of no force or effect until and unless the commissioner of social services certifies that the additional assessments under subparagraph (ii) of paragraph (a) and subparagraph (ii) of paragraph (b) of subdivision 2 of section 3614-a of the public health law have been held by the secretary of the department of health and human services to be not qualified as broad-based health care related taxes, consistent with federal law and regulation. If and when the commissioner of social services so certifies, then the foregoing provisions shall no longer be so suspended and shall be of full force and effect with respect to such services provided on and after the thirtieth day after the commissioner of social services SO certifies, and the additional assessments imposed pursuant to subparagraph (ii) of paragraph (a) and subparagraph (ii) of paragraph (b) of subdivision two of section 3614-a of the public health law shall be deemed to have been null and void as of April 1, 1992. In the event that the secretary of health and human services makes such a determination, the commissioner of social services shall, for each affected provider of services, determine the amount that governmental payments for medical assistance would have been reduced if the foregoing provisions suspended herein had been in effect. The commissioner of social services is authorized to deduct from any payments received from additional assessments on certified home health agencies and long term home health care programs prior to the certification by the commissioner of social services as provided herein an amount equal to such determined obligation. In the event that the amount collected from a provider pursuant to such an additional assessment exceeds such obligation, the balance shall be refunded to the provider promptly. In the event that the amount collected from a provider is insufficient to cover such determined obligation, the commissioner of social services is authorized to withhold from future medical assistance payments an amount equal to the remaining obligation. Such withholding shall be done on a pro rata basis over reasonable period of time, but no later than the end of the fiscal year in which such determination was made.

a

§ 15. Section 3622 of the public health law is repealed and a new section 3622 is added to read as follows:

§ 3622. Patient managed home care program. 1. The patient managed home care program under this section provides eligible individuals the opportunity to take an active and responsible role in the management of their home care. The patient must first be assessed pursuant to section thirty-six hundred sixteen of this article, or section three hundred sixty-seven of the social services law to determine that he or she is able to manage his or her home care. An eligible individual who receives patient managed home care services shall be permitted to recruit, select, train as necessary, supervise and terminate the worker who provides the care. The program shall also provide for procedures to assure that appropriate services are provided and for the division of responsibilities between the patient and the home care agency or

program.

2. Long term home health care programs, certified home health agencies, AIDS long term home health care programs, and licensed home care services agencies under contract with such agencies or programs under contract with local departments of social services, or exempt agencies under contract with local departments of social services, may offer patient managed home care services under this section, subject to the approval of the commissioner.

3. The commissioner, in consultation with the commissioner of social services, directors of local social services districts, the state council on home care services, consumers, labor and state associations representative of home care providers shall publish guidelines for direct implementation and monitoring of patient managed home care services under this section by January thirty-first, nineteen hundred ninety-three. Such guidelines shall: (a) describe how the program is to be administered and operated; EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

(b) provide for the determination of responsibilities of patients and agencies or programs, including such matters as processing of payroll, scheduling and monitoring vacation and other forms of leave and absences of the worker, and determining whether the patient or the agency will be the employer of record of the worker, and the procedure for receiving the necessary alternative services in the event that such individuals are unable or no longer desire to continue in the program;

(c) identify the qualifications of persons who may provide services under the program, which shall ensure that the person is capable of performing the required functions relative to the needs of the eligible individual pursuant to criteria established by the commissioner;

(d) provide for accounting and auditing in connection with the payment system;

(e) provide for coordination of implementation in any county with a program provided pursuant to section three hundred sixty-five-f of the social services law, and shall stipulate that, in these or in any other counties, providers may directly implement such programs only where local social services departments provide a letter to the commissioner approving such implementation of the program in the district; and

(f) describe such other requirements as the commissioner may determine are necessary for the implementation of the program.

4. Patient managed home care services may be offered as an option to home care and personal care recipients determined to be eligible for this program.

5.

for

Individuals who elect to participate in patient managed home care programs shall be considered to have assumed the responsibilities services under such program as mutually agreed to by the recipient and provider and as documented in the patient's record. Individuals shall be assisted as appropriate with service coverage, supervision, advocacy and management. Providers shall not be deemed liable for fulfillment of responsibilities agreed to be undertaken by the recipient. This subdivision, however, does not diminish the participating provider's liability for failure to exercise reasonable care in properly carrying out its responsibilities under this program, which shall include monitoring patient's continuing ability to fulfill those responsibilities documented in his or her records. Failure of the individual to carry out his or her agreed to responsibilities may be considered in determining such individual's continued appropriateness for the program.

the

6. Payment for services acquired pursuant to patient managed care programs shall not exceed the amount which would otherwise be expended for such services in the absence of the program. In addition, the cost to such providers for carrying out the provisions of this section shall be reimbursable under the medical assistance program and, subject to the approval of the state director of the budget, shall be factored into the rates of payment promulgated for home care services; provided, however, that such costs, when combined with service costs, shall not exceed total costs which would have been incurred outside of the program.

the

7. All eligible individuals receiving home care shall be provided notice by the agency of their eligibility and of the availability of patient managed home care services, and shall have the opportunity to participate in the program if availablẹ. An "eligible individual", for purposes of this section is a person who:

(a) is eligible for services provided by a certified home health agency, long term home health care program or AIDS long term home health care program authorized pursuant to this article, or who is eligible for personal care services provided pursuant to the social services law, and is reasonably expected to require such services for a period of at least one hundred eighty days;

(b) is eligible for medical assistance;

(c) is determined, in accordance with assessments performed pursuant to section thirty-six hundred sixteen of this article or section three hundred sixty-seven of the social services law, to be able and willing, or to have a designated guardian, or an adult whom he or she has designated and who is able and willing, in an informed and reasonable way, to assist in making choices concerning the services the patient is to receive and to carry out the patient's responsibilities under the patient managed home care program; and

(d) meets such other criteria, as may be established by the commissioner which are necessary to effectively implement this section.

The number of individuals who may participate in such programs be limited to four hundred statewide, in order that the effectiveness of the

programs may first be demonstrated; provided, however, that if such statewide limits are reached and the commissioner determines that the programs are meeting the objectives and standards of this section, the commissioner may authorize, based on a provider's request, an increase in the number of participants for such provider; provided further however, that such limits shall not apply to programs providing services pursuant to section three hundred sixty-five-f of the social services law.

8. Agencies interested in providing patient managed home care services shall submit to the commissioner for his review and approval a proposal which shall:

(a) describe how the program is to be administered and operated, the number of individuals to be served and the projected cost thereof and include copies of written agreements, when appropriate, with participating agencies certified or licensed pursuant to this article, or under contract with local departments of social services, which delineate the mutual roles and responsibilities of the providers and district concerning the provision and payment of services under the program; and

(b) provide such other information reasonably required by the depart

ment.

9. The commissioner, in consultation with the commissioner of social services, shall review the proposal and provide written notification of his or her determination.

10. No person shall provide home care services that are nursing services under clause (iii) of paragraph (a) of subdivision one of section sixty-nine hundred eight of the education law for remuneration, except under this section or section three hundred sixty-five-f of the social services law.

11. Reports, waivers and regulations. (a) Providers shall file periodic reports containing information required by the commissioner.

and

(b) The commissioner shall file a preliminary report on implementation of the program by December first, nineteen hundred ninety-three, shall report annually thereafter on its implementation, experiences, impacts on patient care and costs, and recommendations for improvement. Such reports shall be made to the chairmen of the senate and assembly standing committees on health and shall include comments and recommendations by representatives of home care providers and consumers.

(c) The commissioner of the department of social services shall apply for such federal waivers as may be needed for the implementation of the program.

(d) The state council on home care services shall review and provide recommendations to the commissioner regarding the development of regulations concerning patient managed home care programs.

(e) Guidelines for direct provider implementation of the patient managed home care program shall be provided to all certified home health agencies, providers of long term home health care programs, providers of AIDS long term home health care programs, and licensed agencies under contract with such providers or agencies or under contract with local departments of social services.

12. This section shall only be implemented if, and as long as, federal financial participation is available for expenditures incurred under this section.

§ 16. Section 365-f of the social services law is amended by adding a new subdivision 2-a to read as follows:

2-a. Division of responsibilities. Individuals who elect to participate in patient managed home care programs shall be considered to have assumed the responsibilities for services under such program as mutually agreed to by the recipient and provider and as documented in the patient's record. Individuals shall be assisted as appropriate with service coverage, supervision, advocacy and management. Providers shall not be deemed liable for fulfillment of responsibilities agreed to be undertaken by the recipient. This subdivision, however, does not diminish the participating provider's liability for failure to exercise reasonable care in properly carrying out its responsibilities under this program, which shall include monitoring the patient's continuing ability to fulfill those responsibilities documented in his or her records. Failure of the individual to carry out his or her agreed to responsibilities may be considered in determining such individual's continued appropriateness for the program.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law