BILL NUMBER: S4400
SPONSOR: COMRIE
 
TITLE OF BILL:
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 agency
contracts and registration of licensed home care services agencies, in
relation to the moratorium on the processing and approval of applica-
tions seeking licensure of a licensed home care services agency
 
PURPOSE:
To enact revisions in New York's Laws governing the operation of
Licensed Home Care Services Agencies (LHCSAs) that have the effect of
repealing and modifying substantial changes-that could forever change,
irreparable harm and potentially extinguish mane longstanding small
businesses that were included in the 2018 Health and Mental Hygiene
Article VII'Budget Bill that was enacted into law as part of Chapter 57
of the Laws of 2018.
 
SUMMARY OF PROVISIONS:
Section 1-Provides compelling legislative intent that lays out the case
for why this legislation is necessary, chronicling the essential nature
of LHCSAs, demonstrating how important they are to our families, our
health care system and our local economies. Changes enacted as part of
the FY 2018-19 Budget are discussed and the conclusion is reached that
said changes threaten the very social and economic existence of our
locally-centered LHCSAs that generations of New Yorkers have come to
count on, letting them into their homes-to demonstrate care and compas-
sion-in times of trial and perseverance. The case for various amend-
ments and modifications that follow is laid out in detail.
Section 2-Provides important procedural and substantive due process
protections to LHCSAs by requiring that the Department of Health proac-
tively conduct at least seven public hearings-including at least one in
New York City, Long Island, Westchester County, The Capital Region,
Central New York and Western New York-to garner feedback and comments
before implementing any proposed methodologies that would place a limit
on the number of LHCSAs with which Managed Long Term Care Plans (MLTCP)
can contract.
In addition, methodologies scheduled to go into effect on October 1st,
2018 that would place a limit on the number of LHCSAs with which Managed
Long Term Care Plans (MLTCP) can contract are deferred until October
1st, 2020. Additional methodologies scheduled to go into effect on Octo-
ber 1st, 2019 are deferred until October 1st, 2021.
Section 3-Strikes out recently-added hurdles to licensure including
"public need," "standing in the community" and "financial resources" for
LHCSAs to meet to receive approval. The pre-Chapter 57 of 2018 licensing
criteria are reestablished.
Section 4-Modifies changes enacted as part of Chapter 57 of 2018 to give
LHCSAs an additional year to register with the Department (from January
1st, 2019 to January 1st, 2020); reduces and relaxes language requiring
onerous compounding fees upon LHCSAs who do not register in a timely
manner and scales back the power of the Department of Health to pursue
license revocation for the sole act of not registering in a timely
manner.
Section 5-Strikes out the LHCSA moratorium enacted as part of Chapter 57
of 2018, which went into effect on April 1st-and instead schedules it
for an effective date of April 1st, 2020 and a sunset date of March 31,
2022.
Section 6-Indicates that the act shall take effect immediately.
 
JUSTIFICATION:
There are currently over 1,400 LHCSAs authorized to provide hourly nurs-
ing care, assistance with activities of daily living and other health
and social services to New York's low-income elderly and disabled popu-
lations. In the past five-years alone, home health employers have added
72,600 jobs in New York. This year, for the first time ever, the number
of people employed in the home health sector in New York City (167,000)
has surpassed the number employed by private hospitals in New York City
(166,300). The FY 2018-19 Enacted Budget contained language in the
Health and Mental Hygiene bill (5.7507-C) that was agreed to by the
Governor, Senate Republicans and Assembly Democrats that put new
restrictions and additional hurdles on Licensed Home Care Services Agen-
cies (LHCSAs). The rationale behind these changes-from the perspective
of the Department of Health-was to move from a fragmented, decentralized
model of care to a more coordinated and centrally-planned one. In addi-
tion, it has been reported that DOH believes that fewer providers will
reduce waste, inefficiency and the opportunity for fraud. The major
downside of these changes is that they will-by design-affect small,
local operations forcing them to merge and/or change their business
model, and at worst, potentially lose their ability to operate. Such
changes seem to ignore the basic current business model of local LHCSA
operations who provide targeted local care in the homes of individuals;
in many ways this business model cannot be scaled up and retain the
quality of services afforded by local groups who are trusted in the
community.
The three major changes enacted as part of the FY 2018-19 Budget were:
* The DOH imposes a two-year moratorium on new LHCSA approvals (Expires
March 30th, 2020).
* The DOH will place a limit on the number of LHCSAs with which Managed
Long Term Care Plans (MLTCP) can contract (Scheduled to be implemented
on October 1st, 2018).
* The DOH will add a requirement that in the future-post the 2-year
moratorium LHCSA applicants will need to demonstrate "public need,"
"standing in the community" and "financial resources" to receive
approval.
This would go into effect on or about March 30th, 2020. All three
changes are of grave concern to the hardworking LHCSAS that are one of
the major backbones of our small business sector. The moratorium means
that any projects in the pipeline are effectively scuttled for at least
two years. The contracting limit, which is complex and determined by a
formula, could essentially mean that smaller LHCSAs are no longer able
to collaborate with Managed Long Term Care Plans. It has been reported
that DOH believes the following outcomes are possible: consolidation of
the LHCSA marketplace, either through large providers formally acquiring
smaller providers, or the gradual disappearance of smaller providers
altogether as they struggle to maintain market share. The post-moratori-
um landscape in March 2020 "public need," "standing in the community"
and "financial resources" for the purposes of becoming licensed to do
business. This will add additional hurdles to small businesses that
already spend so much time on regulation and compliance; in the long
term, it could eventually mean that small operators no longer have the
opportunity to provide services to the community. With hindsight and
reflection upon what truly allows LHCSAs to deliver quality care in the
community, it has become very clear tha t letting these businesses fail
under a system intentionally stacked against them is not a fair, sound,
rational or viable option.
Conclusively, this legislation seeks to keep certain essential elements
of the changes enacted by Chapter 57 of 2018 but adds more realistic
timetables for implementation while preserving the due process rights of
LHCSAs to be heard by the DOH concerning changes that may very well
affect their ability to operate and serve our communities.
 
LEGISLATIVE HISTORY:
S4406 Comriej A5426 Hyndman 2024
S5839 2022
S 9180 COMRIE Same as Uni. A 11382 Rules (Hyndman)
 
FISCAL IMPLICATIONS:
None of significance noted.
 
EFFECTIVE DATE:
This law will take effect immediately.

Statutes affected:
S4400: 3605-b public health law