HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/STATE/NEWYORK2.ASC

Text File | 1993-01-14 | 68KB | 1,324 lines

/* Part 2 of New York follows: */



 2785.  Court authorization for disclosure of confidential HIV
related information

1.   Notwithstanding any other provision of law, no court shall
issue an order for the disclosure of confidential HIV related
information, except a court of record of competent jurisdiction
in accordance with the provisions of this section.

2.   A court may grant an order for disclosure of confidential
HIV related information upon an application showing: (a) a
compelling need for disclosure of the information for the
adjudication of a criminal or civil proceeding; (b)a clear and
imminent danger to an individual whose life or health may
unknowingly be at significant risk as a result of contact with
the individual to whom the information pertains; (c) upon
application of a state, county or local health officer, a clear
and imminent danger to the public health; or (d) that the
applicant is lawfully entitled to the disclosure and the
disclosure is consistent with the provisions of this article.

3.   Upon receiving an application for an order authorizing
disclosure pursuant to this section, the court shall enter an
order directing that all pleadings, papers, affidavits,
judgments, orders of the court, briefs and memoranda of law which
are part of the application or the decision thereon, be sealed
and not made available to any person, except to the extent
necessary to conduct any proceedings in connection with the
determination of whether to grant or deny the application,
including any appeal. Such an order shall further direct that all
subsequent proceedings in connection with the application shall
be conducted in camera, and, where appropriate to prevent the
unauthorized disclosure of confidential HIV related information,
that any pleadings, papers, affidavits, judgments, orders of the
court, briefs and memoranda of law which are part of the
application or the decision thereon not state the name of the
individual concerning whom confidential HIV related information
is sought.

4.   (a) The individual concerning whom confidential HIV related
information is sought and any person holding records concerning
confidential HIV related information from whom disclosure is
sought shall be given adequate notice of such application in a
manner which will not disclose to any other person the identity
of the individual, and shall be afforded an opportunity to file a
written response to the application, or to appear in person for
the limited purpose of providing evidence on the statutory
criteria for the issuance of an order pursuant to this section.

(b)  The court may grant an order' without such notice and
opportunity to be heard, where an ex parte application by a
public health officer shows that a clear and imminent danger to
an individual whose life or health may unknowingly be at risk
requires an immediate order.

(c)  Service of a subpoena shall not be subject to this
subdivision.

5.   In assessing compelling need and clear and imminent danger,
the court shall provide written findings of fact, including
scientific or medical findings, citing specific evidence in the
record which supports each finding, and shall weigh the need for
disclosure against the privacy interest of the protected
individual and the public interest which may be disserved by
disclosure which deters future testing or treatment or which may
lead to discrimination.

6.   An order authorizing disclosure of confidential HIV related
information shall:

(a)  limit disclosure to that information which is necessary to
fulfill the purpose for which the order is granted; and

(b)  limit disclosure to those persons whose need for the
information is the basis for the order, and specifically prohibit
redisclosure by such persons to any other persons, whether or not
they are parties to the action; and

(c)  to the extent possible consistent with this section, conform
to the provisions of this article; and

(d)  include such other measures as the court deems necessary to
limit any disclosures not authorized by its order.



 2786.  Rules and regulations; forms; report

1.   The commissioner shall promulgate rules and regulations
concerning implementation of this article for health facilities,
health care providers and other persons to whom this article is
applicable. The commissioner shall also develop forms to be used
for informed consent for HIV related testing and for the release
of confidential HIV related information and materials for pre-
test counseling as required by subdivision three of section
twenty-seven hundred eighty-one of this article, and for post-
test counseling as required by subdivision five of section twenty-
seven hundred eighty-one of this article.  Persons, health
facilities and health care providers may use forms for informed
consent for HIV related testing, and for the release of
confidential HIV related information other than those forms
developed pursuant to this section, provided that the person,
health facility or health care provider doing so receives prior
authorization from the commissioner. All forms developed or
authorized pursuant to this section shall be written in a clear
and coherent manner using words with common, everyday meanings.
The commissioner, in consultation with the AIDS institute
advisory council, shall promulgate regulations to identify those
circumstances which create a significant risk of contracting or
transmitting HIV infection; provided, however, that such
regulations shall not be determinative of any significant risk
determined pursuant to paragraph (a) of subdivision four of
section twenty-seven hundred eighty-two or section twenty-seven
hundred eighty-five of this article.

2.   (a) Each state agency authorized pursuant to this article to
obtain confidential HIV related information shall, in
consultation with the department of health, promulgate
regulations: (1) to provide safeguards to prevent discrimination,
abuse or other adverse actions directed toward protected
individuals; (2) to prohibit the disclosure of such information
except in accordance with this article; (3) to seek to protect
individuals -in contact with the protected individual when such
contact creates a significant risk of contracting or transmitting
HIV infection through the exchange of body fluids, and (4) to
establish criteria for determining when it is reasonably
necessary for a provider of a health or social service or the
state agency or a local government agency to have or to use
confidential HIV related information for supervision, monitoring,
investigation, or administration and for determining which
employees and agents may, in the ordinary course of business of
the agency or provider, be authorized to access confidential HIV
related information pursuant to the provisions of paragraphs (1)
and (m) of subdivision one and subdivision six of section twenty-
seven hundred eighty-two of this article; and provided further
that such regulations shall be promulgated by the chairperson of
the commission of correction where disclosure is made pursuant to
paragraphs (n) and (o) of subdivision one of section twenty-seven
hundred eighty-two of this article.

(b)  The department of health, in consultation with agencies
referred to in paragraph (a) of this subdivision, shall submit a
report to the legislature by December first, nineteen hundred
eighty-nine, outlining the status and content of such
regulations, their effect on the regulated facilities and the
protected individuals served by them, the extent to which they
conform with current medical and scientific knowledge on the
transmissibility of HIV infection, and any recommendations for
changes in said regulations.



 2787.  Separability

If any section, clause or provision of this article shall be
deemed by any court of competent jurisdiction to be
unconstitutional or ineffective in whole or in part, to the
extent that it is not unconstitutional or ineffective, it shall
be valid and effective and no other section, clause or provision
shall on account thereof be deemed invalid or ineffective.

ARTICLE 36-HOME CARE SERVICES

 3600.  Declaration of legislative findings and intent

The legislature hereby finds and declares that the provision of
high quality home care services to residents of New York state is
a priority concern. Expanding these services to make them
available throughout the state as a viable part of the health
care system and as an alternative to institutional care should be
a primary focus of the state's actions.

Home health care has only recently been recognized legislatively
as an integral part of the health care delivery system and has
proven to have an important and valuable role in patient care.
The certified home health agencies render a coordinated array of
services to patients in their homes, thereby avoiding prolonged
institutionalization, concomitant high costs and associated
adverse social and medical implications.

The legislature intends that there be a public commitment to the
appropriate provision and expansion of services rendered to the
residents of the state by certified home health agencies, to the
maintenance of a consistently high level of services by all home
care services agencies, to the central collection and public
accessibility of information concerning all organized home care
services, and to the adequate regulation and coordination of
existing home care services.



 3602.  Definitions

As used in this article, the following words and phrases shall
have the following meanings unless the context otherwise
requires:

1.  "Home care services" means one or more of the following
services provided to persons at home: (a) those services provided
by a home care services agency; (b) home health aide services;
(c) personal care services; (d) homemaker services; (e)
housekeeper or chore services.

2.  "Home care services agency means an organization primarily
engaged in arranging and/or providing directly or through
contract arrangement one or more of the following: Nursing servic
es, home health aide services, and other therapeutic and related
services which may include, but shall not be limited to,
physical, speech and occupational therapy, nutritional services,
medical social services, personal care services, homemaker
services, and housekeeper or chore services, which may be of a
preventive, therapeutic, rehabilitative, health guidance, and/or
supportive nature to persons at home.

3.   "Certified home health agency" means a home care services
agency which possesses a valid certificate of approval issued
pursuant to the provisions of this article, or a residential
health care facility or hospital possessing a valid operating
certificate issued under article twenty-eight of this chapter
which is authorized under section thirty-six hundred ten of this
article to provide a long term home health care program.  Such an
agency, facility, or hospital must be qualified to participate as
a home health agency under the provisions of titles XVIII and XIX
of the federal Social Security Act and shall provide, directly or
through contract arrangement, a minimum of the following services
which are of a preventive, therapeutic, rehabilitative, health
guidance and/or supportive nature to persons at home: nursing
services; home health aide services; medical supplies, equipment
and appliances suitable for use in the home; and at least one
additional service which may include, but not limited to, the
provisions of physical therapy, occupational therapy, speech
pathology, nutritional services and medical social services.

4.   "Home health aide services" means simple health care tasks,
personal hygiene services, housekeeping tasks essential to the
patient's health and other related supportive services. Such
services shall be prescribed by a physician in accordance with a
plan of treatment for the patient and shall be under the
supervision of a registered professional nurse from a certified
home health agency or, when appropriate, from a provider of a
long term home health care program and of the appropriate
professional therapist from such agency or provider when the aide
carries out simple procedures as an extension of physical, speech
or occupational therapy.

5.   "Personal care services" means services to assist with per
sonal hygiene, dressing, feeding and household tasks essential to
the patient's health. Such services shall be prescribed by a
physician in accordance with a plan of home care supervised by a
registered professional nurse.

6.   "Homemaker services" means assistance and instruction in
managing and maintaining a household, dressing, feeding, and
incidental household tasks for persons at home because of
illness, incapacity, or the absence of a caretaker relative.
Such services shall be provided by persons who meet the standards
established by the department of social services.

7.   "Housekeeper services" or "chore services" means the provi
sion of light work or household tasks which do not require the
services of a trained homemaker. Such services may be provided
for persons at home because of illness, incapacity, or the
absence of a caretaker relative by persons who meet the standards
established by the department of social services.

8.   "Long term home health care program" means a coordinated
plan of care and services provided at home to invalid, infirm, or
disabled persons who are medically eligible for placement in a
hospital or residential health care facility for an extended
period of time if such program were unavailable.

a.   Such program shall be provided in the person's home or in
the home of a responsible relative or other responsible adult.

b.   Such program shall be provided in adult care facilities,
other than shelters for adults, certified pursuant to section
four hundred sixty-b of the social services law, provided that
the person meets the admission and continued stay criteria for
such facility.  Services provided by the program shall not
duplicate or replace those which the facility is required by law
or regulation to provide.

c.   Approved long term home health care program providers may in
clude, as part of their long term home health care program, upon
approval by the commissioner, a discrete AIDS home care program
as defined in this section.

9.  "Hospital" means a hospital as defined in section twenty-
eight hundred one of this chapter.

10.  "Residential health care facility" means a residential
health care facility as defined in section twenty-eight hundred
one of this chapter.

11.  "Government funds" means funds provided under the provisions
of title eleven of article five of the social services law.

12.  "Construction" means the addition or deletion of services
offered; a change in the agency's geographic service area; the
erection, building, or substantial acquisition or alteration of a
physical structure or equipment; or a substantial change in the
method of providing services.

13.  "Licensed home care services agency" means a home care
services agency, issued a license pursuant to section three
thousand six hundred five of this chapter.

14.  "AIDS home care program" means a coordinated plan of care
and services provided at home to persons who are medically
eligible for placement in a hospital or residential health care
facility and who (a) are diagnosed by a physician as having
acquired immune deficiency syndrome (AIDS), or (b) are deemed by
a physician, within his judgment, to be infected with the
etiologic agent of acquired immune deficiency syndrome, and who
has an illness, infirmity or disability which can be reasonably
ascertained to be associated with such infection. Such program
shall be provided only by a provider of a long term home health
care program specifically authorized pursuant to this article to
provide an AIDS home care program or by an AIDS center, as
defined in regulations promulgated by the commissioner,
specifically authorized pursuant to this article to provide an
AIDS home care program. Such program shall be provided in the
person's home or in the home of a responsible relative, other
responsible adult, adult care facilities specifically approved to
admit or retain residents for such program, or in other
residential settings as approved by the commissioner in
conjunction with the commissioner of social services. Such
program shall provide Services including, but not be limited to,
the full complement of health, Social and environmental services
provided by long term home health care. programs in accordance
with regulations promulgated by the commissioner. Such programs
shall also provide such other services as required by the
commissioner to assure appropriate care at home for persons
eligible under this section.



 3604.  State council on home care services

1.   There is hereby created a state council on home care
services, hereinafter known as the "council", to consist of the
commissioner, the commissioner of social services, the
commissioner of mental health, the commissioner of mental
retardation and developmental disabilities, the chairman of the
board of social welfare, the director of the office for the
aging, the commissioner of housing and community renewal, the
superintendent of insurance, the advocate for the disabled, the
director of the office of rural affairs, or a permanent designee
appointed by each such official to represent him or her in his or
her absence, the chairperson of the state hospital review and
planning council or his or her designee, and seventeen members
appointed by the governor with the advice and consent of the
senate, one of whom shall be a member of the statewide health
coordinating council, eight of whom shall represent the public
and nine of whom shall be currently engaged in the delivery of
home care services. At least one member shall be from each health
service area.  However, a change in the status or employment of a
member of the council shall not require his or her resignation or
a change in the composition of the council until further
appointments are made. Membership on the council shall be
reflective of the diversity of the state's population including,
but not limited to, the various geographic areas and population
densities throughout the state. The governor shall designate one
of the seventeen appointed members to serve as chairperson.

2.   The term of office of each appointive member of the council
shall be for three years. The appointive members shall continue
in office until the expiration of their terms and until their
successors are appointed and have qualified.  Such appointments
shall be made by the governor, with the advice and consent of the
senate, within one year following the expiration of such terms.

2-a. Vacancies shall be filled by appointment by the governor for
the unexpired terms within one year of the date upon which such
vacancies occur.  Any vacancies existing on the effective date of
this subdivision shall be filled by appointment within one year
of such effective date.

2-b. In making appointments to the council, the governor shall
seek to ensure that membership on the council reflects the
diversity of the state's population including, but not limited
to, the various geographic areas and population densities
throughout the state.



 3607.  Grants for expansion of services

1.   The commissioner is hereby authorized, within the amount
allocated pursuant to subdivisions one, two and three of section
thirty-six hundred fifteen of this article, to make grants to
certified public and voluntary nonprofit home health agencies for
the purpose of increasing the availability of home health care
services.  Such grants shall be utilized to increase the number
of persons provided services, the kind of services provided,
including medical, social and environmental services, the sharing
of services or to improve or expand the method or frequency of
the delivery of home health care services. Grant applications
shall include specific plans to provide the following:

a.   an expansion of the types of services made available to
persons at home as provided for in subdivision two of section
thirty-six hundred two of this chapter;

b.   an increase in the number of persons provided home care
services by the certified home health agency, directly or through
contractual arrangement, or to provide for the availability of
certified home health agency services on a seven-day-a-week
basis;

c.   the development of training programs approved by the
commissioner to improve the quality of services provided by the
certified home health agency;

d.   the development of programs to coordinate the work of the
certified home health agency with other community resources,
including but not limited to other certified home health
agencies, hospitals, and social services agencies;

e.   demonstration projects to provide care in the home by using
methods, programs, or arrangements not ordinarily used by
certified home health agencies, and that will help to determine
the most appropriate means of reducing institutional care and of
providing better quality home care services, most cost-effective
home care services, and more accessible home care services;

f.   the development of programs to improve home care patients'
access to primary health services; or

g.   the development of "home care volunteer programs for
maternal and child health" pursuant to subdivision two of this
section.

2.a. For purposes of this section, "home care volunteer program
for maternal and child health" shall mean a program developed,
coordinated and provided by a certified home health agency for
purposes of assisting pregnant women and children. Such
assistance shall include but not be limited to: guidance in self
care related to prenatal care and post partum care such as
information concerning proper nutrition, exercise, hygiene, drug,
tobacco and alcohol use, and breast feeding; guidance in infant
care; friendly visiting; and telephone reassurance.  Such
assistance may also include home maintenance, child care and
shopping. Additional services which the agency may provide in
conjunction with the program shall include nursing, social work,
home health aide and other approved agency services necessary to
serve this population.

b.   In providing such program, a certified home health agency
shall utilize volunteers, especially women who have had children
and who are willing and able to provide non-medical assistance to
women for prenatal care and infant care.

c.   The certified home health agency shall recruit, train and
supervise volunteers for the program and shall assure that such
volunteers are competent to perform the required tasks and are
suited to the client. The agency shall designate a person
responsible for management of the program.

d.   Certified home health agencies which provide home care
volunteer programs for maternal and child health shall establish
provisions for referral and case coordination with providers of
prenatal care assistance services as defined in section twenty-
five hundred twenty-one of this chapter.

3.   A public or voluntary non-profit certified home health
agency may make application for such grant in the manner and form
prescribed by the commissioner.  Grant applications may be made
for up to a three-year period; however, grant awards shall be for
one year periods, subject to annual renewal upon approval by the
commissioner.

4.   A grant amount available under this program shall not exceed
the total cost of providing the additional services, as specified
in the application, less any income from governmental, third
party or any other sources accruing as a result of the provision
of such additional services.  Grants may not be used for agency
capital construction purposes.  The initial grant and first year
renewal may be no more than one hundred percent of the net cost
of providing such additional services. Any grants provided for a
third year shall be no more than seventy-five percent of the
initial year's grant. No grant shall exceed one hundred thousand
dollars per annum.

5.   A grantee must certify to the commissioner that all
available reimbursement for services has been and will be sought.
To be eligible for a renewal grant, the level and amount of
services provided during any previous grant period may not be
decreased without the prior approval of the commissioner, and the
grantee shall identify and certify that sufficient funds are
available to maintain previous levels and amounts of service.

6.   In awarding grants pursuant to this section, the
commissioner and the advisory group established pursuant to
subdivision six of section thirty-six hundred fifteen of this
article shall take into consideration, in relation to the area
served, the following factors: the number of patients awaiting
discharge from hospitals or residential health care facilities
for whom home care services are appropriate, the proportion of
patients inappropriately placed in hospitals and residential
health care facilities who could be served by in-home care, the
scope, quantity and accessibility of currently available home
health services, the ability of the agency to continue the
expanded services upon expiration of the grant, and such other
factors as the commissioner may determine are relevant to the
public need for home health services.

7.   In addition to the requirements of this section, the
commissioner shall approve grant applications in accordance with
the provisions of subdivisions five, six and seven of section
thirty-six hundred fifteen of this article.

8.   Funds for such grants shall be made available pursuant to
the funding formula and allocations provided in subdivisions one,
two and three of section thirty-six hundred fifteen of this
article.

9.   The commissioner, after consultation with the state council
on home care services, shall promulgate rules and regulations
necessary to administer this section. The state council on home
care services shall advise the department of the availability and
quality of home care services and on the methods that may be used
to enhance the availability, appropriate utilization and
coordination of home care services through the implementation of
the grant program.



 3609.  Grants for planning an establishment of new certified
home health agencies

1.   The commissioner is hereby authorized, within the amount
allocated pursuant to subdivisions one, two and three of section
thirty-six hundred fifteen of this article, to make grants to
voluntary not-for-profit organizations in areas of the state
determined by the commissioner to be in need of home care
services.

2.   Such grants shall be awarded for the purposes of planning
for establishment as a certified home health agency pursuant to
section thirty-six hundred six of this chapter.

3.   Such grants shall not exceed twenty thousand dollars per
annum and are not renewable.

4.   The grant applications shall include such information as
required by the commissioner, after consultation with the state
council on home care services.

5.   Funds for such grants shall be made available pursuant to
the funding formula and allocations as provided in subdivisions
one, two and three of section thirty-six hundred fifteen of this
article.

6.   The commissioner shall approve applications in accordance
with the provisions of subdivisions five, six and seven of
section thirty-six hundred fifteen of this article.



3612.  Powers and duties of commissioner and state hospital
review and planning council

1.   The commissioner shall have the power to conduct periodic
inspections of facilities of certified home health agencies,
providers of long term home health care programs and of providers
of AID home care programs with respect to the fitness and
adequacy of equipment, personnel, rules and bylaws, standards of
service and medical care, system of accounts, records, and the
adequacy of financial resources and sources of future revenues.

2.   The commissioner shall have the power to conduct periodic
inspections of licensed home care services agencies with respect
to the standards of service and care, qualifications of personnel
and the clinical records maintained by such agency.

3.   Any organization which provides or makes available any home
care services to the public in this state, in any organized
program developed or rendered under its auspices or provided
under contract with any such organization, shall submit annually
to the commissioner a complete description of its operation,
including name, address, location or principal place of business,
ownership, identification of administrative personnel responsible
for home care services programs, the nature and extent of such
programs, and such other information as the commissioner shall
require. The commissioner shall determine the form and content of
the information compiled and the annual date for submission of
such information. The commissioner shall make such information
available to the appropriate governmental agencies of the state,
the counties and the city of New York so as to make known the
availability of home care services to provide data for planning
for health needs of the people of the state.  This information
shall be available to the public and to the health systems
agencies.

4.   The commissioner shall establish within the department a
unit for home care services to assist him in carrying out the
provisions of this article.

5.   The state hospital review and planning council, by a
majority vote of its members, shall adopt and amend rules and
regulations, subject to the approval of the commissioner, to
effectuate the provisions and purposes of this article with
respect to certified home health agencies, providers of long term
home health care programs and providers of AIDS home care pro-
grams, including, but not limited to, (a) the establishment of
requirements for a uniform statewide system of reports and audits
relating to the quality of services provided and their
utilization and costs; (b) establishment by the department of
schedules of rates, payments, reimbursements, grants and other
charges; (c) standards and procedures relating to certificates of
approval and authorization to provide long term home health care
pro-grams and AIDS home care programs; (d) uniform standards for
quality of care and services to be provided by certified home
health agencies, providers of long term home health care programs
and providers of AIDS home care programs; (e) requirements for
minimum levels of staffing, taking into consideration the size of
the agency, provider of a long term home health care program or
provider of an AIDS home care program, the type of care and
service provided, and the special needs of the persons served;
(f) standards and procedures relating to contractual arrangements
between home care services agencies; (g) requirements for the
establishment of plans for the coordination of home care services
and discharge planning for former patients or residents of
facilities under the regulatory jurisdiction of the department,
the departments of social services or mental hygiene, the hoard
of social welfare, or the office for the aging; (h)requirements
for uniform review of the appropriate utilization of services;
and (i) requirements for minimum qualifications and standards of
training for personnel u appropriate. The commissioner and the
state council on home care services may propose rules and
regulations and amendments thereto for consideration by the
council.

6.   The commissioner shall adopt and may amend rules and
regulations to effectuate the provisions and purposes of this
article as to licensed home care services agencies with regard to
(a) uniform standards for quality of care and services to be
provided and (b) the establishment of a uniform statewide system
of reports relating to the quality of services offered.



 3614.  Payments for certified home health agency services, long
term home health care programs and AIDS home care programs

1.   No government agency shall purchase, pay for or make
reimburse ment or grants-in-aid for services provided by a home
care services agency, a provider of a long term home health care
program 9r a provider of an AIDS home care program unless, at the
time the services were provided, the home care services agency
possessed a valid certificate of approval or the provider of a
long term home health care program or AIDS home care program had
been authorized by the commissioner to provide such pro gram.
However, contractual arrangements between a certified home health
agency, provider of a long term home health care program,
provider of an AIDS home care program, or government agency and
any home care services agency shall not be prohibited, provided
that the certified home health agency, provider of a long term
home health care program, provider of an AIDS home care program,
or government agency maintains full responsibility for the plan
of treatment and the care rendered.

2.   Payments for certified home health agency services or
services provided by long term home health care programs or AIDS
home care programs made by government agencies shall be at rates
approved by the state director of the budget. No provider of a
long term home health care program or AIDS home care program
shall establish charges for such program in excess of those
established pursuant to the provisions of this section and rules
and regulations adopted pursuant to section thirty-six hundred
twelve of this article or subchapter XVIII of the federal Social
Security Act (Medicare).

3.   Prior to the approval of such rates, the commissioner shall
determine and certify to the state director of the budget that
the proposed rate schedules for payments for certified home
health agency services or services provided by long term home
health care programs or AIDS home care programs are reasonably
related to the costs of the efficient production of such
services. In making such certification, the commissioner shall
take into consideration the elements of cost, geographical
differentials in the elements of cost considered, economic
factors in the area in which the certified home health agency,
provider of a long term home health care program or provider of
an AIDS home care program is located, costs of certified home
health agencies, providers of long term home health care programs
or providers of AIDS home care programs of comparable size, and
the need for incentives to improve services and institute
economies.

4.   The commissioner shall notify each certified home health
agency, long term home health care program and AIDS home care
program of its approved rates of payment which shall be used in
reimbursing for services provided to persons eligible for
payments made by state governmental agencies at least thirty days
prior to the beginning of an established rate period for which
the rate is to become effective. Such notification shall be made
only after approval of rate schedules by the state director of
the budget.

5.   (a) During the period July first, nineteen hundred ninety
through December thirty-first, nineteen hundred ninety, the
period January first, nineteen hundred ninety-one through
December thirty-first, nineteen hundred ninety-one and for each
calendar year period commencing on January first thereafter,
rates of payment by governmental agencies established in
accordance with subdivision three of this section applicable for
services provided by certified home health agencies to
individuals eligible for medical assistance pursuant to title
eleven of article five of the social services law for certified
home health agencies which can demonstrate, on forms provided by
the commissioner, losses from a disproportionate share of bad
debt and charity care during the base year period as used in
determining such rates may include an allowance determined in
accordance with this subdivision to reflect the needs of the
certified home health agency for the financing of losses
resulting from bad debt and the cost of charity care. Losses
resulting from bad debt and the delivery of charity care shall be
determined by the commissioner considering, but not limited to,
such factors as the losses resulting from bad debt and the costs
of charity care provided by the certified home health agency and
the availability of other financial support, including state
local assistance public health aid, to meet the losses resulting
from bad debt and the costs of charity care of the certified home
health agency. The bad debt and charity care allowance for a
certified home health agency for a rate period shall be
determined by the commissioner in accordance with rules and
regulations adopted by the state hospital review and planning
council and approved by the commissioner, and shall be consistent
with the purposes for which such allowances are authorized for
general hospitals pursuant to the provisions of article twenty-
eight of this chapter and rules and regulations promulgated by
the commissioner. For purposes of distribution of bad debt and
charity care allowances to eligible certified home health
agencies, the commissioner, in accordance with rules and
regulations adopted by the state hospital review and planning
council and approved by the commissioner, may limit application
of a bad debt and charity care allowance to a particular home
care services unit or units of service, such as nursing service.
A certified home health agency applying for a bad debt and
charity care allowance pursuant to this subdivision shall provide
assurances satisfactory to the commissioner that it shall
undertake reasonable efforts to maintain financial support from
community and public funding sources and reasonable efforts to
collect payments for services from third party insurance payors,
governmental payors and self-paying patients. To be eligible for
an allowance pursuant to this subdivision, a certified home
health agency shall have professional assistance available on a
seven day per week, twenty-four hour per day basis to all
registered clients and must demonstrate compliance with minimum
charity care certification obligation levels established pursuant
to' rules and regulations adopted by the state hospital review
and planning council and approved by the commissioner.

(b)  The total amount of funds to be allocated and distributed
for bad debt and charity care allowances to eligible certified
home health agencies for a rate period in accordance with this
subdivision shall be limited to an annual aggregate amount of six
million two hundred fifty thousand dollars; provided, however,
that the amount of funds allocated for distribution to eligible
publicly sponsored certified home health agencies for bad debt
and charity care allowances shall not exceed thirty-five percent
of total available funds for all eligible certified home health
agencies for bad debt and charity care allowances.  In
establishing an apportionment of available funds to publicly
sponsored certified home health agencies in accordance with this
paragraph, the commissioner shall promulgate regulations which
may include, but not be limited to, such factors as the ratio of
public to nonpublic base year period bad debt and charity care
provided by eligible certified home health agencies and
differences in costs for delivering such services.  Certified
home health agencies provided by general hospitals shall not be
eligible for any portion of the allocation pursuant to this
paragraph for the period of July first, nineteen hundred ninety
through December thirty-first, nineteen hundred ninety-two, or
for such longer period if extended by law, based on the projected
availability of an equitable level of bad debt and charity care
coverage for such agencies provided pursuant to chapter two of
the laws of nineteen hundred eighty-eight and any future
amendments thereto.  In order to determine the appropriateness of
the exclusion of hospital-based certified home health agencies
and the allocation to publicly sponsored certified home health
agencies pursuant to this paragraph, the commissioner on or
before April thirtieth, nineteen hundred ninety-one and annually
thereafter shall report to the governor, the chairmen of the
senate finance and assembly ways and means committees and the
chairmen of the senate and assembly standing committees on health
comparing the levels of bad debt and charity care coverage for
all certified home health agencies and indicating whether such
coverage is equitable, within a five percent differential,
between hospital-based, public, other voluntary non-profit and
private proprietary certified home health agencies considering
the availability of all other forms of financial support or
subsidies for this purpose. Should the differential of the
preceding be greater than five percent, the commissioner shall
recommend modifications to the provisions of this paragraph, and
to any associated regulations, as may be necessary to achieve
equitable levels of bad debt and charity care coverage.

(c)  No certified home health agency may receive a bad debt and
charity care allowance in accordance with this subdivision in an
amount which exceeds its need for the financing of losses
associated with the delivery of bad debt and charity care.

(d)  A nominal payment amount for the financing of losses
associated with the delivery of bad debt and charity care will be
established for each eligible certified home health agency. The
nominal payment amount shall be calculated as the sum of the
dollars attributable to the application of an incrementally
increasing nominal coverage percentage of base year period losses
associated with the delivery of bad debt and charity care for
percentage increases in the relationship between base year period
losses associated with the delivery of bad debt and charity care
and base year period total operating costs according to the
following scale:

% of bad debt and charity care losses to    nominal percentage

total operating cost                           loss coverage

     Up to 3%                                      50%



% of bad debt and

charity care losses to                      nominal percentage

total operating cost                           loss coverage

      3 - 6%                                         75%

        6% +                                         100%



If the sum of the nominal payment amounts for all eligible
voluntary non-profit and private proprietary certified home
health agencies or for all eligible public certified home health
agencies is less than the amount allocated for bad debt and
charity care allowances pursuant to paragraph (b)of this
subdivision for such certified home health agencies respectively,
the nominal coverage percentages of base year period losses
associated with the delivery of bad debt and charity care
pursuant to this scale may be increased to not more than one
hundred percent for voluntary non-profit and private proprietary
certified home health agencies or for public certified home
health agencies in accordance with rules and regulations adopted
by the state hospital review and planning council and approved by
the commissioner.

(e)  The bad debt and charity care allowance for each eligible
voluntary non-profit and private proprietary certified home
health agency shall be based on the dollar value of the result of
the ratio of total funds allocated for bad debt and charity care
allowances for certified home health agencies pursuant to
paragraph (b)of this subdivision to the total statewide nominal
payment amounts for all eligible certified home health agencies
determined in accordance with paragraph (d) of this subdivision
applied to the nominal payment amount for each such certified
home health agency.

(f)  The bad debt and charity care allowance for each eligible
public certified home health agency shall be based on the dollar
value of the result of the ratio of total funds allocated for bad
debt and charity care allowances for public certified home health
agencies pursuant to paragraph (b)of this subdivision to the
total statewide nominal payment amounts for all eligible public
certified home health agencies determined in accordance with
paragraph (d) of this subdivision applied to the nominal payment
amount for each such certified home health agency.

(g)  Certified home health agencies shall furnish to the
department such reports and information as may be required by the
commissioner to assess the cost, quality, access to,
effectiveness and efficiency of bad debt and charity care
provided. The state hospital review and planning council shall
adopt rules and regulations, subject to the approval of the
commissioner, to establish uniform reporting and accounting
principles designed to enable certified home health agencies to
fairly and accurately determine and report the costs of bad debt
and charity care. In order to be eligible for an allowance
pursuant to this subdivision, a certified home health agency must
be in compliance with bad debt and charity care reporting
requirements.

(h)  This subdivision shall be effective if, and as long as,
federal financial participation is available for expenditures
made for beneficiaries eligible for medical assistance under
title XIX of the federal social security act based upon the
allowances determined in accordance with this subdivision.

6.   The commissioner in conjunction with the commissioner of
social services shall, subject to the approval of the state
director of the budget, establish capitated rates of payment for
services provided by assisted living programs as defined by
paragraph (a) of subdivision one of section four hundred sixty-
one l of the social services law.  Such rates of payment shall be
related to costs incurred by residential health care facilities.
The rates shall reflect the wage equalization factor established
by the commissioner for residential health care facilities in the
region in which the assisted living program is provided. The
rates shall also reflect the efficient provision of a quality and
quantity of services to patients in such residential health care
facilities, with needs comparable to the needs of residents
served in such assisted living programs. Such rates of payment
shall be equal to fifty percent of the amounts which otherwise
would have been expended to provide the appropriate level of care
for such residents in residential health care facilities in the
applicable wage equalization factor regions.

6.   Subject to the availability of funds, the provisions of
clause (B) of subparagraph (iii) of paragraph (e) of subdivision
one of section twenty-eight hundred seven -c of this chapter
shall apply to certified home health agencies, long term home
health care programs and AIDS home care programs.

7.   Notwithstanding any inconsistent provision of law or
regulation to the contrary, for purposes of establishing rates of
payment by governmental agencies for certified home health
agencies and long term home health care programs for rate periods
beginning on or after January first, nineteen hundred ninety-two,
the reimbursable base year administrative and general costs of a
provider of services, excluding a provider of services reimbursed
on an initial budget basis, shall not exceed thirty percent of
total reimbursable base year operational costs of such provider
of services, and provided further that for any provider of
services the ratio of provider reimbursable base year
administrative and general costs divided by total reimbursable
base year operational costs, expressed as a percentage shall be
reduced according to the following scale:

administrative and                 percentage point
general percentage                    reduction
30+  34%                        4 percentage points
27+  30%                        3 percentage points
24+  27%                        2 percentage points
20+  24%                        1 percentage point but
                                not to be lower than 20%

The limitation on reimbursement for provider administrative and
general expenses provided by this subdivision shall be expressed
as a percentage reduction for the rate promulgated by the
commissioner to each certified home health agency and long term
home health care program provider. The amount of such reduction
in certified home health agency and long term home health care
program provider's rates for payments made during the period
ending March thirty-first nineteen hundred ninety-three shall be
adjusted in the nineteen hundred ninety-four rate period on a pro
rata basis, if it is determined upon post-audit review by June
fifteenth, nineteen hundred ninety-three and reconciliation that
the savings for the state share, excluding the federal and local
government shares, of medical assistance payments pursuant to
title eleven f article five of the social services law based on
the limitation of such payment pursuant to this subdivision is in
excess of three million three hundred thousand dollars to reflect
the amount by which such savings exceed three million three
hundred thousand dollars or is less than three million three
hundred thousand dollars to reflect the amount by which such
savings are lower than three million three hundred thousand
dollars.

 3616. Provision of certified home health agency services, long
term home health care Programs and AIDS home care programs

1.   A long term home health care program shall be provided only
to those patients who are medically eligible for placement in a
hospital or residential health care facility. An AIDS home care
program shall be provided only to persons who are medically
eligible for placement in a hospital or residential health care
facility and who (a) are diagnosed by a physician as having
acquired immune deficiency syndrome, or (b) are deemed by a
physician, within his judgment, to be infected with the etiologic
agent of acquired immune deficiency syndrome, and whose illness,
infirmity or disability can be reasonably ascertained to be
associated with such infection. Provision of certified home
health agency services, a long term home health care program or
an AIDS home care program paid for by government funds shall be
based upon, but not limited to, a comprehensive assessment that
shall include, but not be limited to, an evaluation of the
medical, social and environmental needs of each applicant for
such services or program. This assessment shall also serve as the
basis for the development and provision of an appropriate plan of
care for the applicant.  In cases in which the applicant is a
patient in a hospital or residential health care facility, the
assessment shall be completed by persons designated by the
commissioner, including, but not limited to, the applicant's
physician, the discharge coordinator of the hospital or
residential health care facility referring the applicant, a
representative of the local department of social services, and a
representative of the provider of a long term home health care
program, AIDS home care program, or the certified home health
agency that will provide services for the patient.  In cases in
which the applicant is not a patient in a hospital or residential
health care facility, the assessment shall be completed by
persons designated by the commissioner including, but not limited
to, the applicant's physician, a representative of the local
department of social services and a representative of the
provider of a long term home health care program, AIDS home care
program or the certified home health agency that will provide
services for the patient. The assessment shall be completed prior
to or within thirty days after the provision of services begins.
Payment for services provided prior to the completion of the
assessment shall be made only if it is determined, based upon
such assessment, that the recipient qualifies for such services.
The commissioner shall prescribe the forms on which the
assessment will be made.

2.   Continued provision of a long term home health care program,
AIDS home care program or certified home health agency services
paid for by government funds shall be based upon a comprehensive
assessment of the medical, social and environmental needs of the
recipient of the services. Such assessment shall be performed at
least every one hundred twenty days by the provider of a long
term home health care program, AIDS home care program or the
certified home health agency providing services for the patient
and the local department of social services, and shall be
reviewed by a physician charged with the responsibility by the
commissioner. The commissioner shall prescribe the forms on which
the assessment will be made.

3.   Prior to the initial provision of services, and upon the
continued provision of services pursuant to each complete
reassessment, the agency shall present the recipient or the
recipient's representative with a standardized written statement
pre pared by the department, in consultation with providers of
home care services and consumer representatives, which informs
the recipient or representative that the services to be provided
are subject to change in accordance with a change in the
recipient's needs, a change in information about the recipient's
needs and/or about the formal and informal services available to
meet such needs.  The statement shall further inform the
recipient or representative that such notification and
acknowledgment is for purposes of consumer information and
education, and to establish and maintain proper understanding and
expectations about the possible course of care to be provided by
the agency.



 3616-a. Quality assurance

1.  Every certified home health agency, licensed home care
services agency, long term home health care program and AIDS home
care program is required to establish a quality assurance program
which shall objectively and systematically monitor and evaluate
the quality and appropriateness of care and services provided by
the agency or program.

2.  Confidentiality. The information required to be collected and
maintained by certified home health agencies, licensed home care
services agencies, providers of long term home health care
programs and AIDS home care programs pursuant to subdivision one
of this section and as required by paragraphs (a) and (d) of
subdivision five and subdivision six of section thirty-six
hundred twelve of this chapter shall be kept confidential ~d
shall not be released except to the department.  Provided,
however, hat such information shall be released to a law
enforcement agency upon a court order based upon probable cause
that such information: (a) is relevant to a criminal
investigation or proceeding and (b) cannot be obtained through
any other means. Nothing in this section shall prohibit a
certified home health agency, a licensed home care services
agency, a long term home health care program or an AIDS home care
program from voluntarily releasing what it reasonably believes to
be evidence of criminality to a law enforcement agency.

3.  Notwithstanding any other provision of law, none of the
records, documentation or committee actions or records required
to be maintained by certified home health agencies, licensed home
care services agencies, providers of long term care programs or
AIDS home care programs pursuant to subdivision one of this
section and as required by paragraphs (a) and (d) of subdivision
five and subdivision six of section thirty-six hundred twelve of
this chapter shall be subject to disclosure under article six of
the public officers law or article thirty-one of the civil
practice law and rules, except as hereinafter provided or as
provided by any other provision of law.  No person in attendance
at a meeting of any such committee shall be required to testify
as to what transpired thereat The prohibitions of this
subdivision shall not apply to statements made by any person in
attendance at such a meeting who is a party, or employee or agent
of a party to any action or proceeding the subject matter of
which was reviewed at such meeting. Nothing contained in this
subdivision shall prohibit disclosure of records, documentation
or committee actions or records relating to employment history
and recommendations from being transmitted to any certified home
health agency, licensed home care services agency, long-term home
care program or AIDS home care program which is required by law
or regulation to obtain such information.

4.   There shall be no monetary liability on the part of, and no
cause of action for damages shall arise against, any person,
partnership, corporation, firm, society or other entity
participating in good faith and with reasonable care in a quality
assurance committee or communicating information in the
possession of such person or entity, or on account of any
recommendation or evaluation, regarding the qualifications,
fitness, conduct or practices of any officer, director, employee
or agent of such agency or program to any government agency,
professional society, licensing or certification board as
required by subdivision one of this section and by paragraphs (a)
and (d) of subdivision five and subdivision six of section thirty-
six hundred twelve of this chapter. The foregoing shall not apply
to information which is untrue and communicated with malicious
intent.



 3617. Respite projects

Certified home health agencies shall be permitted, with the prior
approval of the commissioner in consultation with the director of
the state office for the aging, to participate in respite
projects pursuant to section five hundred thirty-six-f of the
executive law. The commissioner, in consultation with the
director of the state office for the aging, shall promulgate
rules and regulations to implement the provisions of this
section.



 3620. Authorization to  provide an AIDS home care program

1.   An AIDS home care program may be provided only by a provider
of a long term home health care program possessing a valid
operating certificate issued under this article or an AIDS center
as defined in accordance with regulations promulgated by the
commissioner.

2.   No agency or facility shall provide an 'AIDS home care
program without the written authorization of the commissioner to
provide such a program.

3.   A provider of a long term home health care program or AIDS
center seeking authorization to provide an AIDS home care program
shall transmit to the commissioner an application setting forth
the scope of the proposed program.  Such application shall be
submitted in a format and quantity determined by the
commissioner. The application shall include a detailed
description of the proposed program including, but not limited
to, the following:

(a)  an outline of the applicant's plans for the AIDS home care
program;

(b)  the need for the proposed program;

(c)  the number and types of personnel to be employed;

(d)  the ability of the applicant to provide the AIDS home care
program;

(e)  the estimated number of visits to be provided;

(f)  the geographic area in which the proposed programs will be
provided;

(g)  any special or unusual services, programs, or equipment to
be provided;

(h)  a demonstration that the proposed program is feasible and
adequate in terms of both short range and long range goals;

(i)  such other information as the commissioner may require.

The commissioner shall not approve the application unless he is
satisfied as to:

(a)  the public need for the program at the time and place and
under the circumstances proposed;

(b)  the financial resources of the provider of the proposed
program and its sources of future revenues;

(c)  the ability of the proposed program to meet those standards
established for participation as a home health agency under title
XVIII of the federal Social Security Act;

(d)  the ability of the proposed program to meet the needs of
AIDS patients; and

(e)  such other matters as he shall deem pertinent.

If the application is approved, the applicant shall be so
notified in writing.  The commissioner's written approval of the
application shall constitute authorization to provide an AIDS
home care program.  If the commissioner proposes to disapprove
the application, he shall notify the applicant in writing,
stating his reasons for disapproval, and afford the applicant an
opportunity for a public hearing.

4.   Authorization to provide an AIDS home care program may be re
voked, suspended, limited or annulled by the commissioner on
proof that a provider of an AIDS home care program has failed to
comply with the provisions of this article or rules and
regulations promulgated thereunder.

5.   (a) Such authorization shall not be revoked, suspended,
limited or annulled without a hearing. However, such
authorization may be temporarily suspended or limited without a
hearing for a period not in excess of thirty days upon written
notice to the provider of an AIDS home care program following a
finding by the department that the public health or safety is in
imminent danger.

(b)  The commissioner shall fix a time and place for the hearing.
A copy of the charges, together with the notice of the time and
place of the hearing, shall be served in person or mailed by
registered or certified mail to the provider of an AIDS home care
program at least twenty-one days before the date fixed for the
hearing.  Such provider shall file with the department not less
than eight days prior to the hearing, a written answer to the
charges.

(c)  All orders or determinations hereunder shall be subject to
review as provided in article seventy-eight of the civil practice
law and rules. Application for such review must be made within
sixty days after service in person or by registered or certified
mail of a copy of the order or determination upon the applicant.

6.   (a) Notwithstanding the provisions of subdivision five of
this section, the commissioner shall suspend, limit or revoke the
authorization of a provider of an AIDS home care program after
taking into consideration the public need for the program and the
availability of other services which may serve as alternatives or
substitutes, and after finding that suspending, limiting, or
revoking the authorization of such provider would be within the
public interest in order to conserve health resources by
restricting the level of services to those which are actually
needed.

(b)  Whenever any finding as described in paragraph (a) of this
subdivision is under consideration with respect to any particular
provider of an AIDS home care program, the commissioner shall
cause to be published, in a newspaper of general circulation in
the geographic area of such provider, at least thirty days prior
to making such a finding an announcement that such a finding is
under consideration and an address to which interested persons
can write to make their views known. The commissioner shall take
all public comments into consideration in making such a finding.

(c) The commissioner shall, upon making any finding described in
paragraph (a) of this subdivision with respect to any provider of
an AIDS home care program cause such provider and the appropriate
health systems agency to be notified of the finding at least
thirty days in advance of taking the proposed action.  Upon
receipt of any such notification and before the expiration of the
thirty days or such longer period as may be specified in the
notice, the provider or the appropriate health systems agency may
request a public hearing to be held in the county in which the
provider is located.  In no event shall the revocation,
suspension or limitation take effect prior to the thirtieth day
after the date of the notice, or prior to the effective date
specified in the notice or prior to the date of the hearing
decision, whichever is later.

(d)  Except as otherwise provided by law, all appeals from a
finding of the commissioner made pursuant to paragraph (a) of
this subdivision shall be directly to the appellate division of
the supreme court in the third department. Except as otherwise
expressly provided by law, such appeals shall have preference
over all issues in all courts.



 3621.  Separability

If any clause, sentence, paragraph, subdivision, section or part
of this article shall be adjudged by any court of competent
jurisdiction to be invalid, the judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be
confined in its operation to the clause, sentence, paragraph,
subdivision, section or part thereof directly involved in the
controversy in which the judgment shall have been rendered.



 6505-b. Course work or training in infection control practices.

Every dentist, registered nurse, licensed practical nurse,
podiatrist, optometrist and dental hygienist practicing in the
state shall, on or before July first, nineteen hundred ninety-
four and every four years thereafter, complete course work or
training appropriate to the professional's practice approved by
the department regarding infection control and barrier precau
tions, including engineering and work practice controls, in
accordance with regulatory standards promulgated by the
department, in consultation with the department of health, which
shall be consistent, as far as appropriate, with such standards
adopted by the department of health pursuant to section two
hundred thirty-eight of the public health law to prevent the
transmission of HIV/HBV in the course of professional practice.
Each such professional shall document to the department at the
time of registration commencing with the first registration after
July first, nineteen hundred ninety-four that the professional
has completed course work or training in accordance with this
section, provided, however that a professional subject to the
provisions of paragraph (f) of subdivision one of section twenty-
eight hundred five-k of the public health law shall not be
required to so document The department shall provide an exemption
from this requirement to anyone who requests such an exemption
and who (i) clearly demonstrates to the department's satisfaction
that there would be no need for him or her to complete such
course work or training because of the nature of his or her
practice or (ii) that he or she has completed course work or
training deemed by the department to be equivalent to the course
work or training approved by the department pursuant to this
section. The department shall consult with organizations
representative of professions, institutions and those with
expertise in infection control and HIV and HBV with respect to
the regulatory standards promulgated pursuant to this section.