department of health describing the potential impact of institutionalization which has been reviewed by a residential health care facility to determine if institutionalization would result in a diminishing of the recipient's ability to perform the activities of daily living;

§ 75. Subparagraph (v) of paragraph (d) of subdivision 2 of section 367-1 of the social services law is repealed and subparagraph (vi) of such paragraph is relettered subparagraph (v).

§ 76. Paragraph (b) of subdivision 3 of section 367-1 of the social services law, as added by chapter 165 of the laws of 1991, is amended to read as follows:

(b) If a social services district determines that the recipient can be appropriately and more cost-effectively served through the provision of services or settings described in subparagraphs (iii) and (iv) of paragraph (a) of this subdivision then the social services district shall first consider the use of such services or settings in the development of a plan of care for the recipient shall be required to use such services or settings in lieu of private duty nursing or for maximum reduction in the need for home health services or other long-term care services.

§ 77. The departments of health and social services shall encourage the development of shared aide programs among providers which demonstrate the ability to provide services with the greatest economies of scale.

§ 78. The social services law is amended by adding a new section 367-o to read as follows:

§ 367-o. Instruments for home care assessment. 1. The commissioner and the commissioner of health, shall establish and may periodically revise instruments for home care screening, referral, assessment, eligibility determination, and discharge, which shall be used by certified home health agencies, providers of long term home health care programs, providers of AIDS home care programs, providers of private duty nursing, and providers of personal care services to determine a recipient's eligibility for and the nature and amount of such services to be provided to the recipient. Such instrument shall:

(a) allow for use by hospital discharge planners that portion of the instrument necessary to direct a hospitalized recipient into the home care program which is expected to meet their assessed needs most appropriately and cost-effectively; and to the extent possible and appropriate, direct

(i) to a certified home health agency recipients who require therapeutic and/or skilled services and/or require clinical management;

over an

(ii) to a long term home health care program, if such program is available in their area, recipients who are expected to require care extended period and whose condition meets criteria for medical eligibility in a residential health care facility, whose condition requires services beyond care and nurse monitoring, or whose condition is determined to be medically unstable;

(iii) to a personal care services program recipients whose condition is determined to be medically stable; and

(iv) to a hospice available within their area recipients for whom it is not medically contraindicated and if desired by the recipient;

(b) assess the patient's characteristics and service needs, including health, social and environmental needs and whether home care services are appropriate and can be safely provided to the recipient, and shall be used to refer recipients to the home care program which most appropriately and cost effectively meets their needs, or other long term care service which is deemed appropriate for the recipient;

(c) confirm the recipient's eligibility for the program to which the recipient has been referred or direct the recipient to the home care program which most appropriately and cost-effectively meets his or her needs;

(d) consider factors that include but are not limited to the following: the recipient's ability to perform activities of daily living, the recipient's mental and physical ability to direct his or her own care and to summon assistance, the recipient's health and rehabilitation needs, as well as the availability, willingness and ability of others to provide care. When it is determined that the recipient is not physically or mentally able to direct their own care or to summon assistance, the instrument shall consider whether the recipient has someone who is available, able and willing to make decisions on behalf of the recipient;

(e) specify the maximum number of hours per month, or the equivalent thereof, which will be paid for under the medical assistance program provided, however that the recipient's health and safety will not be jeopardized;

(f) serve as a basis for the plan of care and consider the relationship between all the services provided by the home care providers to which the recipient is referred, all other home care services available in the area as defined in this subdivision, the availability of informal supports to provide care, the sources of support suggested by the recipient or the recipient's representative and potential for medicare COVerage of recipient care needs;

or

ess; and

not apply to a recipient requiring care for sixty continuous days (h) be used directly by certified home health agencies, long term home health care programs, or, if personal care services are appropriate, by the social services district or its designee, which may include an agency under contract with the social services district to provide personal care services or a certified home health agency, under conditions specified by the department.

2. The instruments established, or revised, pursuant to subdivision one of this section shall be employed for the following categories of recipients and such services shall not be authorized for more than the maximum hours of service per month, or the equivalent thereof, per recipient, based on such instrument regardless of the number of monthly service hours, or their equivalent, if any, currently authorized for a recipient:

(a) recipients who initially are authorized for such services on or after July first, nineteen hundred ninety-two; (b) all recipients, upon the periodic reassessment of their care plan; and (c) recipients who currently receive more than one hundred fifty-six hours, or its equivalent, of such services per month; provided, however, that the department shall require the reassessment of such recipients utilizing the instrument; notify such recipients of the required reassessment, as determined by the department; and limit payments for such services to the equivalent of one hundred fifty-six hours per month for those recipients who fail to comply with such reassessment requirement until such recipients are reassessed provided, however, the recipients' health and safety is not jeopardized.

3. Notwithstanding subdivision two of this section, any maximum hours per month limitations imposed as a result of use of the assessment instrument shall not apply with respect to recipients of long term home health care program services.

4. The provisions of this section shall not apply to individuals receiving services authorized under subdivisions six and seven of tion three hundred sixty-six of this chapter.

sec

§ 79. The social services law is amended by adding a new section 367-n to read as follows:

§ 367-n. Delegation of responsibility by social services districts. 1. The departments of social services and health shall by September first, nineteen hundred ninety-two develop delegation protocols whereunder the social services districts delegate activities related to home care services which currently are the responsibility of local districts to providers of home health and personal care services or other entities. Such protocols shall address the required assessment form; provide for review of fiscal assessments; arrange for alternative placements; care plan management; and shall reflect improved social services district activities, including, but not limited to, medical assistance eligibility determinations, audits, review of high cost cases, and such other matters relating to delegation as determined by the commissioners. 2. By January first, nineteen hundred ninety-three, districts must submit to the department a plan for the delegation of responsibilities one or more providers or other entities in accordance with the delegation protocols of the departments of health and social services. Nothing shall, preclude a district from delegating responsibilities to some but not all providers operating within the district.

to

a

3. Notwithstanding subdivision two of this section, a district may submit to the department in lieu of a delegation plan, a request for waiver of the requirement of such subdivision two, provided it furnishes EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

to be omitted.

the department with the basis for such waiver. The commissioner is authorized in his or her discretion, to grant or deny such waiver requests.

4. The plan for delegation, which must be approved or disapproved within ninety days of receipt of the plan, must be reviewed in accordance with the delegation protocols and also reviewed in accordance with the following:

(a) The department of health shall review whether licensed or certi

fied home health agencies to whom it is proposed to delegate responsibilities have complied with department of health standards as outlined in article thirty-six of the public health law.

(b) The department shall review any department audits, reports or other materials regarding the agencies to whom it is proposed to delegate responsibilities to determine if the agency has engaged in any unacceptable practices as defined in department regulations.

agency.

5. The department and the department of health shall be responsible for auditing the performance of the delegated tasks by the provider 6. The delegation of responsibility may be revoked by the department if the agency fails to perform any of the delegated responsibilities according to standards established in the regulations.

$80. The departments of health and social services shall jointly establish a group comprised of representatives of the state council on home care services, consumer representatives, representatives of social services districts, representatives of home and personal care workers and representatives of certified home health agencies, personal care providers, and long term home health care providers, to advise the departments regarding the development and implementation of a common assessment instrument and maximum hours of care paid for under the medical assistance program as based on the instrument and as it reflects the recipient's needs, health and safety, and solicit public input. The departments must give the advisory group adequate notice and consultation of any substantive changes made after July 1, 1992 in the assessment instrument.

§ 81. The departments of social services and health shall submit to the legislature no later than June 1, 1992, a copy of the home care and personal care assessment instrument and the basis for arriving at the maximum hours paid under the medical assistance program developed pursuant to section 367-o of the social services law. Such departments shall also jointly issue an interim report to the governor and the legislature no later than June 1, 1993 which shall report on the effectiveness of this act as it relates to the utilization and cost of Medicaid funded home care services, the quality of care provided to recipients of home care services, any appreciable impact on use of nursing facility and inpatient hospital resources, and shall make recommendations regarding the future of home care policy in the state. A final report shall be issued by May 1, 1994 which shall address cost effectiveness, quality of care, and the experience of social service districts in implementing this program, the effectiveness of a providerbased system, and make recommendations relating to management of home

care.

§ 82. The commissioner of health, in consultation with the commissioner of social services and the council on home care services, shall establish a program for recruitment of primary care physicians and nurse practitioners to conduct home visits to homebound elderly and disabled persons, who otherwise would require medical transportation to a physician's office, clinic or hospital in order to obtain such physician care. The commissioner of health shall also consult with the medical society of the state of New York, state associations representative of nurse practitioners home care providers and consumers in establishing this program, and shall seek the active involvement of such associations in implementation. Pursuant to such program, the commissioner of social services, upon approval of the state director of the budget, shall provide increased rates of payment under the medical assistance program for physicians who agree to make home visits to such recipients. The commissioner of social services may provide such payments in the form of an enhanced fee paid directly to such physicians or nurse practitioners, or in the form of a discrete fee payable to certified home health agencies, providers of long term home health care programs and providers of personal care services having established written agreements with physicians and nurse practitioners for such enhanced payments for home

visits. Such enhanced fees shall be offset by avoidance of medical transportation costs that would otherwise have been incurred on behalf of a patient.

§ 83. (Intentionally Omitted.)

$ 84. Section 3616 of the public health law is amended by adding a new subdivision 3 to read as follows:

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 prepared 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 acknowledgement 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.

§85. Section 369 of the social services law, as added by chapter 256 of the laws of 1966, and the closing paragraph of subdivision 1 as amended by chapter 863 of the laws of 1977, is amended to read as follows:

§ 369. Application of other provisions. 1. All provisions of this chapter not inconsistent with this title shall be applicable to medical assistance for needy persons and the administration thereof by the [public welfare] social services districts.

[Any] 2. (a) Notwithstanding any inconsistent provision of this chapter or other law [notwithstanding], [(a)] no lien may be imposed against the property of any individual prior to his or her death on account of medical assistance paid or to be paid on his or her behalf under this title, except:

(i) pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual, [and] or

(ii) with respect to the real property of an individual who is an inpatient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, and who is not reasonably expected to be discharged from the medical institution and to return home, provided, however, any such lien will dissolve upon the individual's discharge from the medical institution and return home; in addition, no such lien may be imposed on the individual's home if one of the following persons is lawfully residing in the home:

(A) the spouse of the individual;

(B) a child of the individual who is under twenty-one years of age or who is blind or permanently and totally disabled; or

(C) a sibling of the individual who has an equity interest in the home and who was residing in the home for a period of at least one year immediately before the date of the individual's admission to the medical institution.

(b) [there shall be](i) Notwithstanding any inconsistent provision of this chapter or other law, no adjustment or recovery shall be made against the property of any individual on account of any medical assistance correctly paid to or on behalf of [such] an individual under this title, except:

(A) upon the sale of the property subject to a lien imposed on account of medical assistance paid to an individual described in clause (ii) of paragraph (a) of this subdivision, or from the estate of such individual; or

(B) from the estate of an individual who was_sixty-five_years of age or older when he or she received such assistance, and than]. (ii) Any such adjustment or recovery shall be made only after the death of [his] the individual's surviving spouse, if any, and only at a time when [he] the individual has no surviving child who is under twenty-one years of age or is blind or permanently and totally disabled, provided, however, that nothing herein contained shall be construed to prohibit any adjustment or recovery for medical assistance furnished pursuant to subdivision three of section three hundred sixty-six of this chapter.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.

(iii) In the case of a lien on an individual's home, any such adjustment or recovery shall be made only when:

(A) no sibling of the individual who was residing in the individual's home for a period of at least one year immediately before the date of the individual's admission to a medical institution referred to in subparagraph (ii) of paragraph (a) of subdivision two of this section, and is lawfully residing in such home and has lawfully resided in such home on a continuous basis since the date of the individual's admission to the medical institution, and

(B) no child of the individual who was residing in the individual's home for a period of at least two years immediately before the date of the individual's admission to a medical institution referred to in subparagraph (ii) of paragraph (a) of subdivision two of this section, and who establishes to the satisfaction of the state that he or she provided care to such individual which permitted such individual to reside at home rather than in an institution, and is lawfully residing in such home and has lawfully resided in such home on a continuous basis since the date of the individual's admission to the medical institution.

(c) Nothing contained in this subdivision shall be construed to alter or affect the right of a social services official to recover the cost of medical assistance provided to an injured person in accordance with the provisions of section one hundred four-b of this chapter.

[2.] (d) Where a recovery or adjustment is made pursuant to this title with respect to a case in a federally-aided category of medical assistance, a part of the net amount resulting from such recovery or adjustment shall be paid or credited to the federal government pursuant to federal law and the regulations of the federal department of [health, education and welfare] health and human services.

3. The department and any social services district is hereby authorized to maintain an action subject to sections one hundred one and one hundred four of this chapter to collect from either a trustee, creator, or creator's spouse any beneficial interest of either the creator or creator's spouse in any trust, other than a testamentary trust, to reimburse such department or district for the costs of medical assistance furnished to, or on behalf of, a creator or creator's spouse. For the purpose of this subdivision, the beneficial interest of the creator or creator's spouse includes the income and any principal amounts to which the creator or creator's spouse would have been entitled by the terms of such trust by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee for the distribution of the maximum amount to either the creator or the creator's spouse.

4. Any inconsistent provision of this chapter or other law notwithstanding, all information received by [public welfare] social services and public health officials and service officers concerning applicants for and recipients of medical assistance may be disclosed or used only for purposes directly connected with the administration of medical as

sistance for needy persons.

§ 86. Section 7-3. 1 of the estates, powers and trusts law is amended by adding a new paragraph (c) to read as follows:

(c) A provision in any trust, other than a testamentary trust, which provides directly or indirectly for the suspension, termination or diversion of the principal, income or beneficial interest of either the creator or the creator's spouse in the event that the creator or creator's spouse should apply for medical assistance or require medical, hospital or nursing care or long term custodial, nursing or medical care shall be void as against the public policy of the state of New York, without regard to the irrevocability of the trust or the purpose for which the trust was created.

§ 87. Subdivision 8 of section 1310 of the surrogate's court procedure act is renumbered subdivision 9 and a new subdivision 8 is added to read as follows:

8. It shall be lawful for the debtor to pay a debt which does not exceed five thousand dollars or any part of such debt, under subdivision four of this section, to the department of social services or a social services district where the debt is money payable on account of a deposit with the debtor for the personal needs of the deceased creditor while residing in a medical institution or other facility, or otherwise, and the deceased creditor is indebted to the department or district on account of medical assistance furnished to or on behalf of the deceased creditor.