S 4400: Relates to a moratorium on new licensed home care service agency approvals.

  
  STATE OF NEW YORK ________________________________________________________________________ 4400 2025-2026 Regular Sessions  IN SENATE February 4, 2025 ___________ Introduced by Sen. COMRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to a moratorium on new licensed home care service agency approvals; and to amend part B of chapter 57 of the laws of 2018 amending the public health law and other laws relating to limitations on licensed home care service agen- cy contracts and registration of licensed home care services agencies, in relation to the moratorium on the processing and approval of appli- cations seeking licensure of a licensed home care services agency The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The legislature hereby finds and 2 declares that local small business are the very lifeblood and economic 3 building blocks of the empire state. These businesses are important to 4 every community throughout our state: they hire locally, they spend 5 resources locally, they pay state and local taxes and they offer essen- 6 tial services that improve the quality of life of individuals at the 7 local level. Without such local small businesses, our economy would not 8 be able to function in a manner that benefits all our residents and 9 reaches them in a very direct and personal way. A quintessential and 10 leading example of the type of local, small business that provides life- 11 changing services can be found in the form of licensed home care service 12 agencies (LHCSAs). LHCSAs are a vital and essential component of our 13 health care delivery system, interacting with patients on a daily basis, 14 attending to their needs and standing on the very frontline of quality 15 care. Furthermore, LHCSAs are very often small, local businesses started 16 by compassionate social entrepreneurs who saw a need in their community 17 and who have succeeded because of the very personal, trusting, compas- 18 sionate and nurturing relationship they have with the individuals under 19 their care. Additionally, the range of services provided by LHCSAs, 20 including language and cultural competency, is unique and valuable, to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05794-01-5 
 S. 4400 2 1 them, to the employees they hire and to our overall community and health 2 care system. The need for home care services for our senior population 3 is rising exponentially and local, small business LHCSAs have rationally 4 grown to meet this demand and provide skillful care for our loved ones. 5 Moreover, LHCSAs often save the state money because they allow individ- 6 uals to remain at home, instead of moving to institutionalized care. 7 However, puzzlingly, the department of health constantly seems focused 8 on threatening LHCSAs ability to operate, as exemplified by a two year 9 moratorium enacted in 2008 and a series of potentially catastrophic 10 provisions enacted as part of the 2018-19 New York state budget, includ- 11 ing: another two year moratorium on new LHCSA approvals; the 12 construction of a limit on the number of LHCSAs with which managed long 13 term care plans (MLTCP) can contract; and authorization of a forward- 14 looking requirement that could be enacted in the future, post the two 15 year moratorium, that will mandate that LHCSA applicants need to demon- 16 strate "public need" and "financial feasibility" to receive approval. In 17 sum, these changes have simply gone too far in terms of overregulating 18 local small businesses that are trying to provide quality of life health 19 services to some of our most needy and vulnerable citizens. The new 20 changes threaten the very social and economic existence of the locally 21 centered LHCSAs that generations of New Yorkers have come to count on, 22 letting them into their homes in times of trial and perseverance. In 23 hindsight, the recently enacted provisions have proven to be overreach- 24 ing, unwise and onerous, and consequently must be modified. 25 § 2. Subparagraphs (i), (ii), (iii), (v) and (x) of paragraph (j) of 26 subdivision 7 of section 4403-f of the public health law, as added by 27 section 9-a of part B of chapter 57 of the laws of 2018, are amended to 28 read as follows: 29 (i) The commissioner may establish methodologies to limit the number 30 of licensed home care services agencies licensed pursuant to article 31 thirty-six of [the public health law] this chapter with which managed 32 long term care plans may enter into contracts, provided that such limi- 33 tations are consistent with the specifications set forth in this para- 34 graph. However, before implementing any such methodological limitations, 35 the department must hold a minimum of six public hearings including at 36 least one in each of the following regions: the city of New York, Long 37 Island, Westchester county, the capital region, central New York and 38 western New York to hear from interested parties that may be affected by 39 any proposed methodologies. The department shall widely publicize such 40 hearings once scheduled, and must send notice of such hearings to all 41 licensed home care services agencies at least two weeks in advance of 42 each hearing. The hearings must be officially transcribed and written 43 testimony and comments must be permitted both in person and via mail and 44 electronic means. The department shall formally take into account the 45 public hearing comments and written testimony before promulgating any 46 final methodologies. 47 (ii) Managed long term care plans operating in the city of New York 48 and/or the counties of Nassau, Suffolk, and Westchester may enter into 49 contracts with licensed home care services agencies in such region in a 50 maximum number calculated based upon the following methodology: 51 (A) As of October first, two thousand [eighteen] twenty-seven, one 52 contract per seventy-five members enrolled in the plan within such 53 region; and 54 (B) As of October first, two thousand [nineteen] twenty-eight, one 55 contract per one hundred members enrolled in the plan within such 56 region. 
 S. 4400 3 1 (iii) Managed long term care plans operating in counties other than 2 those in the city of New York and the counties of Nassau, Suffolk, and 3 Westchester may enter into contracts with licensed home care services 4 agencies in such region in a maximum number calculated based upon the 5 following methodology: 6 (A) As of October first, two thousand [eighteen] twenty-seven, one 7 contract per forty-five members enrolled in the plan within such region. 8 (B) As of October first, two thousand [nineteen] twenty-eight, one 9 contract per sixty members enrolled in the plan within such region. 10 (v) When calculating the number of additional contracts that a managed 11 long term care plan may enter using the methodologies established pursu- 12 ant to this paragraph, any fractional result shall be rounded [down] up. 13 (x) This subparagraph applies where implementation of the limits on 14 contracts with licensed home care service agencies of this paragraph (i) 15 would otherwise require an enrollee's care to be transferred from the 16 enrollee's current licensed home care service agency to another licensed 17 care service agency, and (ii) the enrollee (or the enrollee's authorized 18 representative) wants the enrollee to continue to be cared for by one or 19 more employees of the current licensed home care service agency, and 20 that continuation would otherwise be provided. In such a case: the 21 enrollee's managed long term care plan may contract with the enrollee's 22 current licensed home care service agency for the purpose of continuing 23 the enrollee's care by such employee or employees, and the contract 24 shall not count towards the limits on contracts under this paragraph for 25 a period of [three months] one year. 26 § 3. Subdivisions 4 and 6 of section 3605 of the public health law, as 27 amended by section 9-b of part B of chapter 57 of the laws of 2018, are 28 amended to read as follows: 29 4. The public health and health planning council shall not approve an 30 application for licensure unless it is satisfied as to[: (a) the public 31 need for the existence of the licensed home health care service agency 32 at the time and place and under the circumstances proposed; (b)] the 33 character, competence and standing in the community of the applicant's 34 incorporators, directors, sponsors, stockholders or operators[; (c) the 35 financial resources of the proposed licensed home health care service 36 agency and its sources of financial revenues; and (d) such other matters 37 as it shall deem pertinent]. 38 6. Neither public need, tax status nor profit-making status shall be 39 criteria for licensure. 40 § 4. Section 3605-b of the public health law, as added by section 9-d 41 of part B of chapter 57 of the laws of 2018, is amended to read as 42 follows: 43 § 3605-b. Registration of licensed home care services agencies. 1. 44 [(a)] Notwithstanding any provision of law to the contrary, no licensed 45 home care services agency (LHCSA) licensed pursuant to section thirty- 46 six hundred five of this article shall be operated, provide nursing 47 services, home health aide services, or personal care services, or 48 receive reimbursement from any source for the provision of such services 49 during any period of time on or after January first, two thousand [nine- 50 teen] twenty-eight, unless it has registered with the commissioner in a 51 manner prescribed by the department. 52 [(b)] 2. A LHCSA that fails to submit a complete and accurate set of 53 all required registration materials by the deadline established by the 54 commissioner [shall] may be required to pay a fee of [five] one hundred 55 dollars for each full month [or part thereof] that the LHCSA is in 56 default. A LHCSA that failed to register in the prior year by the dead- 
 S. 4400 4 1 line of the current year shall not be permitted to register for the 2 upcoming registration period unless it submits any unpaid late fees. 3 [(c)] 3. The department shall post on its public website a list of all 4 LHCSAs, which shall indicate the current registration status of each 5 LHCSA. 6 [(d)] 4. The department shall institute proceedings to revoke the 7 license of any LHCSA that fails to register for [two] three consecutive 8 annual registration periods[, whether or not such periods are consec- 9 utive. The department shall have the discretion to pursue revocation of 10 the license of a LHCSA on grounds that it evidences a pattern of late 11 registration over the course of multiple years]. 12 § 5. Section 9-e of part B of chapter 57 of the laws of 2018 amending 13 the public health law and other laws relating to limitations on licensed 14 home care service agency contracts and registration of licensed home 15 care services agencies is amended to read as follows: 16 § 9-e. Effective April 1, [2018] 2027, the commissioner of health 17 shall place a moratorium on the processing and approval of applications 18 seeking licensure of a licensed home care services agency pursuant to 19 section 3605 of the public health law that have not received establish- 20 ment approval or contingent establishment approval by the public health 21 and health planning council, except for: (a) an application seeking 22 licensure of a licensed home care services agency that is submitted with 23 an application for approval as an assisted living program authorized 24 pursuant to section 461-l of the social services law; (b) an application 25 seeking approval to transfer ownership for an existing licensed home 26 care services agency that has been licensed and operating for a minimum 27 of five years for the purpose of consolidating ownership of two or more 28 licensed home care services agencies; and (c) an application seeking 29 licensure of a home care services agency where the applicant demon- 30 strates to the satisfaction of the commissioner of health that 31 submission of the application to the public health and health planning 32 council for consideration would be appropriate on grounds that the 33 application addresses a serious concern such as a lack of access to home 34 care services in the geographic area or a lack of adequate and appropri- 35 ate care, language and cultural competence, or special needs services. 36 Such moratorium shall expire on March 31, [2020] 2029. In implementing 37 the provisions of this section, the commissioner shall, to the extent 38 practicable, review and, where appropriate, prioritize presentation to 39 the public health and health planning council of complete applications 40 under paragraph (b) of this section where the applicants demonstrate, to 41 the satisfaction of the commissioner, that the proposed change in owner- 42 ship is consistent with the goals of paragraph (j) of subdivision 7 of 43 section 4403-f of the public health law. 44 § 6. This act shall take effect immediately; provided, however, that 45 the amendments to section 4403-f of the public health law made by 46 section two of this act shall not affect the repeal of such section 47 pursuant to chapter 659 of the laws of 1997, as amended, and shall be 48 deemed repealed therewith.