1. (1) It is the policy of the department to pay for home health services under the medical assistance (MA) program only when:

   1. (i) the services are medically necessary; and
   2. (ii) the services can maintain the recipient's health and safety in his or her own home, as determined by the certified home health agency in accordance with the regulations of the Department of Health.

2. (2) Home health services mean the following services when prescribed by a physician and provided to an MA recipient in his or her home other than a general hospital or an RHCF:

   1. (i) nursing services provided on a part-time or intermittent basis by a certified home health agency or, if no certified home health agency is available, by a registered professional nurse or a licensed practical nurse acting under the direction of a recipient's physician;
   2. (ii) physical therapy, occupational therapy, or speech pathology and audiology services; and

   3. (iii) home health aide services, as defined in the regulations of the Department of Health, provided by a person who meets the training requirements of the Department of Health, whose information as required by Part 403 of Title 10 NYCRR has been entered into the home care services worker registry, is assigned by a registered professional nurse to provide home health aide services in accordance with a recipient's plan of care, and is supervised by a registered professional nurse from a certified home health agency or a therapist, in accordance with the regulations of the Department of Health.

      (b) Provision of home health services.

3. (1) A certified home health agency must provide home health services in accordance with applicable provisions of the regulations of the Department of Health (article 7 of Subchapter C of Chapter V of Title 10 NYCRR) and with federal regulations governing home health services (42 CFR 440.70 and Part 484).

4. (2) As part of the comprehensive assessment or reassessment which a certified home health agency must conduct for each recipient in accordance with the regulations of the Department of Health, a certified home health agency must consider the following factors:

   1. (i) whether home health services can be provided according to the recipient's plan of care, are medically necessary and can maintain the recipient's health and safety in his or her own home, as determined in accordance with the regulations of the Department of Health;
   2. (ii) whether the recipient can be served appropriately and more cost-effectively by home health services provided under a consumer directed personal assistance program authorized in accordance with section 365-f of the Social Services Law;
   3. (iii) whether the functional needs, living arrangements and working arrangements of a recipient who receives home health services solely for monitoring the recipient's medical condition and well-being can be monitored appropriately and more cost-effectively by personal emergency response services provided in accordance with section 505.33 of this Part;
   4. (iv) whether the functional needs, living arrangements and working arrangements of the recipient can be maintained appropriately and more cost-effectively by home health services provided by shared aides;
   5. (v) whether a recipient who requires only personal care services or an appropriate substitute and who does not, as a part of a routine plan of care, require part-time or intermittent nursing or other therapeutic services, except for nursing services provided to a medically stable recipient, can be served appropriately and more cost-effectively through the provision of personal care services available in the district in accordance with section 505.14 of this Part;
   6. (vi) whether home health services can be provided appropriately and more cost-effectively by the certified home health agency in cooperation with an adult day health program or a clinic, rather than on a fee-for-service basis;
   7. (vii) whether the recipient can be served appropriately and more cost-effectively by other long-term care services including, but not limited to, services provided under the long-term home health care program (LTHHCP), the assisted living program or the enriched housing program; and
   8. (viii) whether the recipient can be served appropriately and more cost-effectively by using specialized medical equipment covered by the MA program including, but not limited to, insulin pens.
5. (3) If a certified home health agency determines that a recipient can be served appropriately and more cost-effectively through the provision of services which are described in subparagraphs (2)(ii) through (viii) of this subdivision and the certified home health agency determines that such services are available in the social services district, the certified home health agency must first consider the use of such services in developing the recipient's plan of care. The recipient must use such services rather than home health services to achieve the maximum reduction in his or her need for home health services or other long-term care services.

6. (4) A certified home health agency must have a written agreement with each hospice that is available in the certified home health agency's service area. The agreement must specify the procedures for notifying recipients who the certified home health agency reasonably expects would be appropriate for hospice services of the availability of hospice services and for referring such recipients to hospice services. A certified home health agency must not refer a recipient to hospice services if the recipient's physician determines that hospice services are medically contra-indicated or the recipient does not choose to receive hospice services.

   (c) Payment and reimbursement.

7. (1) The department will pay providers of home health services for home health services provided under this section at rates established by the Commissioner of Health and approved by the Director of the Budget; however, no payment will be made unless the claim for payment is supported by documentation of the time spent providing services to each recipient.

8. (2) Certified home health agencies must maximize Medicare and third-party revenues, in accordance with the requirements of this Title, and report to the department annually on such efforts.

   1. (i) A certified home health agency with a proportion of Medicare or third-party revenue which is less than 20 percent of the Statewide or regional average for its peer group, whichever the commissioner determines more appropriate, must submit a statement to the department explaining the difference.
   2. (ii) If an audit demonstrates that a certified home health agency has not implemented good faith efforts to collect Medicare and third-party revenues, the agency may be subject to the recoupment of MA payments for claims which are otherwise payable.
9. (3) Reimbursement. State reimbursement to social services districts for the costs of home health services provided under this section is available in accordance with Social Services Law, section 368-a(1)(g).

10. (d) Appendix 1—Catanzano Implementation Plan.

    APPENDIX 1

    REVISED

    CATANZANO IMPLEMENTATION PLAN

    Revised effective March 20, 1996 by order of the United States District Court Western District of New York

    This is to advise you that the department has been ordered to issue the following directive by Order of the United States District Court, Western District of New York, in an action entitled "Catanzano et al. v. Dowling et al." 89 CV 1127L.

    The Order is limited to adverse actions taken contrary to a treating physician's orders with respect to home health services.

11. I. HOME HEALTH SERVICES APPLICANTS:

    § 1.0. A home health services applicant means:

12. (a) each MA recipient who is not currently receiving home health services and who resides in his or her own home or in any other community setting in which home health services may be provided; and
13. (b) each hospitalized MA recipient who did not receive home health services immediately prior to hospitalization.

14. A. APPLICANT DENIALS BASED ON HEALTH AND SAFETY:

    § 100. Instructions to CHHAs:

15. (a) The following instructions apply when a certified home health agency (CHHA) determines that it will not admit a Medical Assistance (MA) recipient because the CHHA believes that the home health services ordered by the recipient's physician cannot maintain the recipient's health and safety in the home for one or more of the reasons specified in the New York State Department of Health (DOH) regulations at Title 10 NYCRR § 763.5(b)(1)(i) through (iv), § 763.5(b)(2)(i) or § 763.5(b)(2)(iv). These instructions do not apply when a CHHA determines not to admit an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR § 763.5(b)(2)(ii)(a) through (c) or § 763.5(b)(2)(iii).

16. (b) When a CHHA determines that the home health services that an MA recipient's physician has ordered would not maintain the recipient's health and safety, the CHHA must consult with the physician. The purpose of this consultation is for the physician and the CHHA to develop, if possible, a plan of care that would maintain the recipient's health and safety.

    § 101. If, after consulting with the MA recipient's physician, the CHHA determines not to admit the recipient because the CHHA and the physician are unable to develop a plan of care that the CHHA believes would maintain the recipient's health and safety, the CHHA must follow the procedures set forth below:

17. (a) Hospitalized MA recipients:

    The CHHA must refer a hospitalized MA recipient's case to the hospital discharge planner who, in accordance with existing procedures, will attempt to locate another CHHA that will agree to admit the recipient and provide home health services in accordance with the physician's order. If the discharge planner is unable to locate another CHHA, the discharge planner or the original CHHA must refer the recipient's case to the social services district. The referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA or the discharge planner must inform the recipient and the recipient's physician that the recipient's case has been referred to the social services district.

18. (b) Non-hospitalization MA recipients:

    The CHHA must refer a non-hospitalized MA recipient's case to the social services district. The CHHA's referral must include a copy of the documentation set forth in (a), above. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

    § 102. Instructions to social services districts:

19. (a) When a CHHA or a hospital discharge planner refers an MA recipient to the social services district in accordance with the procedures outlined in § 101(a) or (b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.
20. (b) The local professional director or designee will review the documentation and determine, on behalf of the social services district, whether home health services should be denied contrary to the physician's order or should be provided according to the physician's order.

21. (c) The local professional director or designee will notify the social services district and the CHHA of his or her final determination within 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

    § 103. Depending on the local professional director's or designee's determination, the social services district must take the following action:

22. (a) Determinations denying home health services contrary to physician's order:

    When the local professional director or designee determines that home health services should be denied contrary to the physician's order, the social services district must send the MA recipient an adequate notice, as defined in department regulation 18 NYCRR § 358-2.2. The social services district must use the new notice attached to this directive as Appendix A and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES (HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size rather than letter-size paper. The social services district must also issue the notice as a two-sided rather than a two-page notice.

23. (b) Decisions that home health services should be provided according to physician's order:

    When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must attempt to refer the MA recipient's case to a CHHA that will agree to admit the recipient and provide home health services according to the physician's order. If the social services district is unable to find a CHHA that will do so, the social services district must direct a CHHA to admit the recipient and to provide the recipient with home health services according to the physician's order.

24. B. APPLICANT DENIALS BASED ON FISCAL ASSESSMENTS:

    § 104. By letter dated February 18, 1994, the department advised CHHAs and social services districts that, until further notice, CHHAs must not conduct, and social services districts must not review, fiscal assessments of home health services applicants. The department is now changing those instructions, as set forth below.

    § 105. Instructions to CHHAs:

    Beginning immediately, each CHHA must resume the conduct of fiscal assessments of each MA recipient who is applying for home health services and whom the CHHA reasonably expects will require home health services for more than 60 continuous days.

    § 106. Instructions to social services districts:

    Beginning immediately, each social services district must resume the review of fiscal assessments that CHHAs conduct of MA recipients who are applying to the CHHAs for home health services.

    § 107. Agreement with CHHA's determination that home health services should be denied based on the fiscal assessment:

25. (a) The social services district must send the recipient an adequate notice when the district agrees with the CHHA's determination that the home health services ordered by the recipient's physician should be denied based on the fiscal assessment or should be denied because the recipient is appropriate for an "efficiency." (A list of the "efficiencies" as set forth at page 8 of the 92 ADM-50.)

26. (b) The social services district must use the new notice attached to this directive as Appendix B and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES (FISCAL ASSESSMENT AND EFFICIENCIES)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than on letter-size paper. The social services district must also issue the notice as a two-sided notice, rather than a two-paged notice, and attach the one-page list of exception criteria to the notice.

    § 108. Disagreement with CHHA's determination that home health services should be denied or provided based on the fiscal assessment or based on the use of an "efficiency":

27. (a) The social services district must refer the recipient's case to the local professional director or designee when the district disagrees with the CHHA's determination that the home health services ordered by the recipient's physician should be denied or provided based on the fiscal assessment or based on the use of one or more "efficiencies."
28. (b) The local professional director or designee must review the documentation submitted by the social services district and determine whether the recipient should be denied or provided home health services.
29. (c) The local professional director or designee must notify the social services district and the CHHA of his or her determination within 10 business days after receiving the recipient's case and all supporting documentation from the social services district.
30. (d) When the local professional director or designee determines that the MA recipient should be denied home health services, the social services district must send the recipient an adequate notice. The social services district must use the new notice attached to this directive as Appendix B and entitled "NOTICE OF INTENT TO DENY HOME HEALTH SERVICES (FISCAL ASSESSMENT AND EFFICIENCIES)." This is the same notice described in § 107(b) above. Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than on letter-size paper. The social services district must also issue the notice as a two-sided notice, rather than a two-paged notice, and attach the one-page list of exception criteria to the notice.
31. (e) When the local professional director or designee determines that the MA recipient should be provided home health services, the social services district must attempt to refer the MA recipient's case to a CHHA that will agree to admit the recipient and provide home health services according to the physician's order. If the social services district is unable to find a CHHA that will do so, the social services district must direct a CHHA to admit the recipient and to provide the recipient with home health services according to the physician's order.

32. II. HOME HEALTH SERVICES RECIPIENTS:

    § 2.0 A home health services recipient means:

33. (a) each MA recipient who is currently receiving home health services in his or her own home or in any other community setting in which home health services may be provided; and
34. (b) each hospitalized MA recipient who received home health services immediately prior to hospitalization.

35. A. CHHA DETERMINATIONS, CONTRARY TO PHYSICIAN'S ORDERS, TO DISCHARGE MA RECIPIENTS BECAUSE HOME HEALTH SERVICES CANNOT MAINTAIN RECIPIENTS' HEALTH AND SAFETY:

    § 200. Instructions to CHHAs:

36. (a) The following instructions apply when a CHHA determines that it should discharge an MA recipient, although the physician disagrees, because the home health services ordered by the recipient's physician can no longer maintain the recipient's health and safety for one or more of the reasons specified in DOH regulations at 10 NYCRR § 763.5(h)(1), § 763.5(h)(4) or § 763.5(h)(5).
37. (b) These instructions do not apply when a CHHA determines that it should discharge an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR § 763.5(h)(2).

38. (c) Determinations to discharge based on a recipient's request [10 NYCRR § 763.5(h)(3)] are covered in § 215 and § 216 below.

    § 201. When a CHHA determines that the home health services ordered by the recipient's physician can no longer maintain an MA recipient's health and safety, the CHHA must consult with the physician. The CHHA may discharge the recipient if the recipient's physician provides the CHHA with a written statement that the recipient may be discharged or if the recipient's physician directs the CHHA to immediately comply with his oral statement that the recipient may be discharged, in which event a written statement from the physician authorizing discharge shall be provided within seven (7) days.

    § 202. When the recipient's physician does not provide the CHHA with such a written or oral statement agreeing to the discharge, the CHHA must:

39. (a) refer the recipient's case to a CHHA that, after assessing the recipient, agrees to admit the recipient and provide home health services according to the physician's order and continue to provide home health services according to the physician's order until the new CHHA has assessed and admitted the recipient; OR

40. (b) refer the recipient's case to the social services district and continue to provide home health services according to the physician's order until notified otherwise by the social services district. The CHHA's referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

    § 203. Instructions to social services districts:

41. (a) When a CHHA refers an MA recipient to the social services district in accordance with the procedures outlined in § 202(b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.
42. (b) The local professional director or designee must review the documentation and determine, on behalf of the social services district, whether home health services should be discontinued contrary to the physician's order or should be provided according to the physician's order.

43. (c) The local professional director or designee will notify the social services district and the CHHA of his or her determination within 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

    § 204. Depending on the local professional director's or designee's determination, the social services district must take the following action:

44. (a) Determinations that home health services should be discontinued contrary to physicians' orders:

    When the local professional director or designee determines that home health services should be discontinued contrary to the physician's order, the social services district must send the MA recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix C and entitled "NOTICE OF INTENT TO REDUCE OR DISCONTINUE HOME HEALTH SERVICES (HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue this notice as a two-sided notice rather than a two-paged notice.

45. (b) Determinations that home health services should be provided according to physicians' orders:

    When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must inform the CHHA of the determination and that the CHHA must provide the services according to the physician's order.

    § 205. Aid-continuing instructions to CHHAs and social services districts:

46. (a) When the social services district determines that home health services should be discontinued contrary to the physician's order, the CHHA must not discharge the recipient until the effective date of the fair hearing notice. The CHHA must also continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice.

    The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA of each such recipient who is entitled to receive aid-continuing.

47. B. CHHA DETERMINATIONS, CONTRARY TO PHYSICIANS' ORDERS, TO REDUCE MA RECIPIENTS' HOME HEALTH SERVICES BECAUSE THE RECIPIENTS' MEDICAL CONDITIONS HAVE IMPROVED:

    § 206. Instructions to CHHAs:

    These instructions apply when a CHHA determines that a recipient's home health services should be reduced because the recipient's medical condition has improved, or for other reasons related to the recipient's medical condition or health and safety, but the recipient's physician disagrees with the CHHA's determination.

    § 207. When a CHHA determines that a recipient's home health services should be reduced for such reasons, the CHHA must consult with the recipient's physician. The CHHA may reduce the recipient's home health services if the recipient's physician provides the CHHA with a written statement that the recipient's services may be reduced or if the recipient's physician directs the CHHA to immediately comply with his oral statement to reduce services, in which event a written statement from the physician authorizing a reduction in services shall be provided within seven (7) days.

    § 208. If the recipient's physician does not provide the CHHA with such a written or oral statement agreeing to the reduction, the CHHA must:

48. (a) refer the recipient's case to a CHHA that, after assessing the recipient, agrees to admit the recipient and provide home health services according to the physician's order and continue to provide home health services according to the physician's order until the new CHHA has assessed and admitted the recipient; OR

49. (b) refer the recipient's case to the social services district and continue to provide home health services according to the physician's order until notified otherwise by the social services district. The CHHA's referral must include a copy of the CHHA's assessment of the recipient, all other documentation that the CHHA has either prepared regarding the recipient or has received from the recipient's physician, and the name and telephone number or fax number of the recipient's physician. The CHHA must inform the recipient and the recipient's physician that it has referred the recipient's case to the social services district.

    § 209. Instructions to social services districts:

50. (a) When a CHHA refers an MA recipient to the social services district in accordance with the procedures outlined in § 208(b) above, the social services district must forward the recipient's case and all relevant documentation to the local professional director or designee.
51. (b) The local professional director or designee must review the documentation and determine, on behalf of the social services district, whether home health services should be reduced contrary to the physician's order or should be provided according to the physician's order.

52. (c) The local professional director or designee will notify the social services district and the CHHA of his or her determination with 10 business days after receiving the MA recipient's case and all supporting documentation from the social services district.

    § 210. Depending on the local professional director's or designee's determination, the social services district must take the following action:

53. (a) Determinations that home health services should be reduced contrary to physicians' orders:

    When the local professional director or designee determines that home health services should be reduced contrary to the physician's order, the social services district must send the MA recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix C and entitled: "NOTICE OF INTENT TO REDUCE OR DISCONTINUE HOME HEALTH SERVICES (HEALTH AND SAFETY)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue the notice as a two-sided notice rather than a two-paged notice.

54. (b) Determinations that home health services should be provided according to physicians' orders:

    When the local professional director or designee determines that home health services should be provided according to the physician's order, the social services district must inform the CHHA of the determination and that the CHHA must provide the services according to the physician's order.

    § 211. Aid-continuing instructions to CHHAs and social services districts:

55. (a) When the social services district determines that home health services should be reduced contrary to the physician's order, the CHHA must not reduce the recipient's home health services until the effective date of the notice. The CHHA must also continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice.
56. (b) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA of each such recipient who is entitled to receive aid-continuing.

57. C. DISCONTINUANCE BASED ON FISCAL ASSESSMENTS AND REDUCTIONS BASED ON THE USE OF EFFICIENCIES:

    § 212. Agreement cases:

    When a social services district agrees with a CHHA's determination, which was made contrary to the physician's order, that the recipient's home health services should be reduced based on the use of one or more efficiencies or discontinued based on the fiscal assessment, the district must follow the procedures set forth below:

58. (a) Agreement on reductions:

    When the social services district agrees with the CHHA that the recipient's home health services should be reduced based on the use of one or more efficiencies, the district must send the recipient a timely and adequate "NOTICE OF INTENT TO REDUCE HOME HEALTH SERVICES (FISCAL ASSESSMENT/EFFICIENCIES)." This is a new notice that is attached to this directive as Appendix D and that replaces Attachment 4 of 92 ADM-50. Until further notice, the social services district must photocopy this new notice and issue it as a two-sided notice rather than a two-paged notice on legal-size paper.

59. (b) Agreement on discontinuances:

    When the social services district agrees with the CHHA that the recipient's home health services should be discontinued based on the fiscal assessment, the social services district must send the recipient a timely and adequate "NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES (FISCAL ASSESSMENT)." This is a new notice that is attached to this directive as Appendix E and that replaces Attachment 5 of 92 ADM-50. Until further notice, the social services district must photocopy this new notice and issue it as a two-sided notice rather than a two-paged notice on legal-size paper. The social services district must also attach the one-page list of exception criteria as page 3 of this discontinuance notice.

    § 213. Disagreement cases:

60. (a) When a social services district disagrees with a CHHA's determination that a recipient's home health services should be reduced based on the use of one or more efficiencies, or discontinued based on the fiscal assessment, the district must refer the recipient's case to the local professional director or designee.
61. (b) The local professional director or designee will review the documentation submitted by the social services district and determine whether the recipient's home health services should be reduced or discontinued.
62. (c) The local professional director or designee will notify the social services district and the CHHA of his or her final determination within 10 business days after receiving the recipient's case and all supporting documentation from the social services district.

63. (d) When the local professional director or designee determines that the recipient's home health services should be reduced or discontinued, the social services district must provide the recipient with timely and adequate notice. For reductions, the district must use the notice attached to this directive as Appendix D and entitled "NOTICE OF INTENT TO REDUCE HOME HEALTH SERVICES (FISCAL ASSESSMENT/EFFICIENCIES)." For discontinuances, the district must use the notice attached to this directive as Appendix E and entitled "NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES (FISCAL ASSESSMENT)."

    § 214. Aid-continuing instructions to CHHAs and social services districts:

64. (a) The CHHA must not reduce or discontinue the recipient's home health services until the effective date of the fair hearing notice. In addition, the CHHA must continue to provide the recipient with aid-continuing, for which the CHHA will continue to be reimbursed by the Medical Assistance Program, when the recipient requests a fair hearing prior to the effective date of the notice. The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing.
65. (b) The social services district must then notify the CHHA of each such recipient who is entitled to receive aid-continuing.

66. E. RECIPIENTS' REQUESTS TO BE DISCHARGED:

    § 215. Written requests for discharge:

67. (a) Instructions to CHHAs:

    When a CHHA receives a clear, written statement that has been signed by a recipient and states that the recipient no longer wishes home health services, the CHHA must consult with the recipient's physician. When the recipient's physician believes that the recipient should continue to receive home health services according to the physician's recommendations, the CHHA must inform the social services district that the recipient wishes to be discharged contrary to the physician's recommendations. The CHHA must continue to provide home health services to the recipient in accordance with the physician's recommendations.

68. (b) Instructions to social services districts:
69. (i) When a social services district is informed by a CHHA, in accordance with § 215(a), that the recipient has submitted a clear, written statement that he or she no longer wishes to receive home health services, the district must send the recipient an adequate notice, as defined in department regulation 18 NYCRR § 358-2.2. The social services district must use the new notice attached to this directive as Appendix F and entitled "ADEQUATE NOTICE OF INTENT TO DISCONTINUE HOME HEALTH CARE SERVICES (AT RECIPIENT'S REQUEST)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue the notice as a two-sided notice rather than a two-paged notice.
70. (ii) When the recipient requests a fair hearing within 10 days after the date that the fair hearing notice is postmarked, the social services district must notify the CHHA that it must provide aid-continuing, for which the CHHA will be reimbursed by the Medical Assistance Program.

71. (iii) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested that his or her benefits be reinstated. The social services district must then notify the CHHA that it must provide aid-continuing to the recipient pending issuance of a fair hearing decision.

    § 216. Oral requests for discharge:

72. (a) Instructions to CHHAs:

    When a recipient orally states to CHHA personnel that he or she no longer wishes to receive home health services, the CHHA must consult with the recipient's physician. When the recipient's physician believes that the recipient should continue to receive home health services according to the physician's recommendation, the CHHA must inform the social services district that the recipient wishes to be discharged contrary to the physician's recommendation and continue to provide home health services according to the physician's recommendations.

73. (b) Instructions to social services districts:
74. (i) When a social services district is informed by a CHHA, in accordance with § 216(a), that the recipient has orally stated that he or she no longer wishes to receive home health services, the district must send the recipient a timely and adequate notice. The social services district must use the new notice attached to this directive as Appendix G and entitled "TIMELY AND ADEQUATE NOTICE OF INTENT TO DISCONTINUE HOME HEALTH SERVICES (AT RECIPIENT'S REQUEST)." Until further notice, the social services district must photocopy this notice and issue it on legal-size paper rather than letter-size paper. The social services district must also issue this notice as a two-sided notice rather than a two-paged notice.
75. (ii) When the recipient requests a fair hearing prior to the effective date of the notice, the social services district must notify the CHHA that it must provide aid-continuing, for which the CHHA will be reimbursed by the Medical Assistance Program.
76. (iii) The Department's Office of Administrative Hearings will notify the social services district of each recipient who has timely requested a fair hearing with aid-continuing. The social services district must then notify the CHHA that it must provide aid-continuing to the recipient pending issuance of a fair hearing decision.
77. III. RETROACTIVE RELIEF:

78. A. CHHA DETERMINATIONS MADE ON OR AFTER NOVEMBER 15, 1993, TO DENY ADMISSION TO OR DISCHARGE MA RECIPIENTS FOR REASONS RELATED TO RECIPIENTS' HEALTH AND SAFETY OR TO REDUCE MA RECIPIENTS' HOME HEALTH SERVICES FOR REASONS RELATED TO RECIPIENTS' HEALTH AND SAFETY:

    § 301. Except as provided below, the following instructions apply to the following CHHA determinations made on or after November 15, 1993:

79. (a) CHHA determinations not to admit MA recipients because home health services cannot maintain the recipients' health and safety;
80. (b) CHHA determinations to discharge MA recipients because home health services can no longer maintain the recipients' health and safety for one or more of the reasons specified in DOH regulations at 10 NYCRR § 763.5(h)(1), § 763.5(h)(4) or § 763.5(h)(5); and

81. (c) CHHA determinations to reduce MA recipients' home health services because the recipients' medical conditions have improved or for other reasons related to the recipients' medical conditions or health and safety.

    § 302. These instructions DO NOT apply to the following CHHA determinations made on or after November 15, 1993:

82. (a) Any CHHA determination made on or after November 15, 1993, to deny admission to an MA recipient when the recipient's physician agreed with the CHHA's determination not to admit the recipient;
83. (b) Any CHHA determination made on or after November 15, 1993, to reduce an MA recipient's home health services when the recipient's physician had ordered that the recipient's services be reduced and the CHHA reduced the services consistent with the physician's order;
84. (c) Any CHHA determination made on or after November 15, 1993, to discharge an MA recipient for reasons related to the recipient's medical condition when the recipient's physician had ordered that the recipient be discharged and the CHHA discharged the recipient consistent with the physician's order;
85. (d) Any CHHA determination made on or after November 15, 1993, to discharge an MA recipient for one or more of the reasons specified in DOH regulations at 10 NYCRR § 763.5(h)(2) or § 763.5(h)(3); and

86. (e) Any CHHA determination made with respect to an MA recipient who is now deceased.

    § 303. Instructions to CHHAs:

87. (a) Each CHHA must review its case records on all MA recipients whom the CHHA either denied admission to or discharged on or after November 15, 1993, or whose home health services were reduced on or after such date.

88. (b) The CHHA is not required to take any further action with respect to any MA recipient who was denied admission or discharged or whose services were reduced in accordance with § 302(a), (b), (c), (d), or (e) above. The CHHA is required, however, to take certain action with respect to all other MA recipients whom the CHHA denied admission to or discharged on or after November 15, 1993, or whose services were reduced on or after such date and who did not receive an adequate fair hearing notice and an opportunity to request a fair hearing with aid-continuing, when aid-continuing was appropriate.

    Specifically, the CHHA must obtain a new physician's order and conduct a new assessment of the MA recipient in accordance with DOH regulations.

    § 304. When the CHHA agrees with the new physician's order, the CHHA must admit or discharge the recipient or provide the recipient services in accordance with the order.

    § 305. When the CHHA disagrees with the new physician's order, the CHHA must follow the appropriate instructions to CHHAs previously set forth in this directive. Specifically, the CHHA must follow the instructions to CHHAs in § 100 et seq. when the CHHA determines not to admit the recipient contrary to the physician's order; the CHHA must follow the instructions to CHHAs in § 200 et seq. and the aid-continuing instructions in § 205, when the CHHA determines that the recipient should be discharged contrary to the physician's order; and the CHHA must follow the instructions to CHHAs in § 206 et seq. and the aid-continuing instructions in § 211 when the CHHA determines that the recipient's services should be reduced contrary to the physician's order. Aid-continuing must be provided at the level of services required by the physician's new order.

    § 306. Instructions to social services districts:

    The social services district must follow the appropriate instructions to social services districts set forth in this directive. Specifically, the social services district must follow the instructions to social services districts in § 102 et seq. when acting upon a CHHA's determination, contrary to the physician's order, not to admit an MA recipient for health and safety reasons; the district must follow the instructions to social services districts in § 203 et seq. and the aid-continuing instructions in § 205 when acting upon a CHHA's determination, contrary to the physician's order, to discharge an MA recipient for health and safety reasons; and the district must follow the instructions to social services districts in § 209 et seq. and the aid-continuing instructions in § 211 herein when acting upon a CHHA's determination, contrary to the physician's order, to reduce a recipient's home health services. Aid-continuing must be provided at the level of services required by the physician's new order.

89. B. SOCIAL SERVICES DISTRICT DETERMINATIONS MADE ON OR AFTER NOVEMBER 15, 1993, TO DENY, REDUCE OR DISCONTINUE MA RECIPIENTS' HOME HEALTH SERVICES BASED UPON FISCAL ASSESSMENTS:

    § 307. Reductions or discontinuances:

    Social services districts and CHHAs are reminded that the instructions set forth in the Department's February 25, 1994, memorandum entitled "Further Catanzano instructions: retroactive relief" remain in effect. These instructions apply to MA recipients whose home health services were reduced or discontinued on or after November 15, 1993, for reasons related to fiscal assessments. A copy of these instructions is attached to this directive as Appendix H.

    § 308. Denials contrary to physicians' orders:

    Social services districts must identify each case that meets the following requirements:

90. (a) The CHHA conducted an initial fiscal assessment on or after November 15, 1993, on any MA recipient, regardless of whether the recipient was hospitalized or residing at home, who was not receiving home health services from the CHHA when it conducted the fiscal assessment;
91. (b) The social services district agreed or disagreed with the CHHA's determination not to admit the MA recipient because the recipient's home care costs exceeded 90 percent of RHCF costs and the recipient did not meet any exception criteria;
92. (c) The recipient was denied home health services as a result of the fiscal assessment and contrary to the physician's order; and

93. (d) The social services district did not send the MA recipient an adequate fair hearing notice advising the recipient of his or her right to request a fair hearing to appeal the denial of home health services.

    § 309. Social services districts have the following responsibilities for each MA recipient whom the districts identify as meeting the requirements set forth in (a) through (d) of § 308 above:

94. (a) The social services district must notify the CHHA of each recipient whom the district identifies as meeting these requirements;
95. (b) The CHHA must complete a new assessment of the recipient including a new fiscal assessment and forward the fiscal assessment to the district; and

96. (c) The social services district must follow the notice and fair hearing instructions previously set forth at § 107 herein when the social services district agrees with the CHHA's determination that home health services should be denied based on the fiscal assessment. When the social services district disagrees with the CHHA's determination that home health services should be denied or provided based on the fiscal assessment, the district must follow the notice and fair hearing instructions previously set forth at § 108 herein.

    § 310. Should you have questions regarding your responsibilities, please telephone Mary Jane Conroy, Medical Assistance Specialist II, at (518) 473-5565 or by fax at (518) 486-4112.

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    APPENDIX H

    MEMORANDUM DSS-524EL

    TO:	All Social Services	DATE:	February 25, 1994
    	District Commissioners
    FROM:	Barry T. Berberich	SUBJECT:	Further Catanzano
    	Assistant Commissioner		instructions: retroactive
    			relief

    This memorandum contains further instructions regarding the preliminary injunction issued on February 16, 1994, in Catanzano et al. v. Dowling et al. (USDC, WDNY). In Section IV of the Department's February 18th letter to social services districts and CHHAs regarding the Catanzano preliminary injunction, the department informed them that it would be providing such instructions regarding retroactive relief as soon as possible.

    The specific section of the court's order directing retroactive relief requires the State and County defendants to:

    "take immediate steps to provide notice and hearing rights to members of plaintiffs' class who have had their home health care services suspended, terminated or reduced without the benefit of notice, the right to a hearing or aid-continuing since November 15, 1993."

    To comply with this order, each social services district must review its case records on each home health services recipient for whom a CHHA conducted a fiscal assessment and, as a result of the fiscal assessment, reduced or discontinued (i.e. suspended or terminated) the recipient's home health services on or after November 15, 1993.

    Please note that the order does not apply to Medical Assistance recipients who were hospitalized when the CHHA conducted the fiscal assessment. In addition, the order does not apply to CHHA determinations to reduce or discontinue a recipient's home health services for reasons that are unrelated to the costs of the recipient's care when compared to 90 percent of residential health care facility costs and the recipient's failure to meet any exception criteria.

    Specifically, each district must identify each case that meets the following requirements:

97. a. The CHHA conducted a fiscal assessment on a Medical Assistance recipient who, at the time of the fiscal assessment, was receiving home health services from the CHHA and was not hospitalized, and the CHHA reduced or discontinued the recipient's home health services on or after November 15, 1993, as a result of the fiscal assessment;
98. b. The social services district agreed with the CHHA's determination that the recipient's home health services should be reduced or discontinued on or after November 15, 1993; and

99. c. The social services district did not provide the recipient with a timely notice and an opportunity for a fair hearing to review the determination that the recipient's home health services should be reduced or discontinued.

    Social services districts and CHHAs have the following responsibilities for each home health services recipient who meets the requirements set forth in a - c, above:

100. 1. The social services district must notify the CHHA of each recipient whom the district has identified as meeting these requirements.
101. 2. For each recipient who the district has determined meet these requirements, the CHHA must reinstate the home health services that the recipient received immediately prior to the CHHA's reduction or discontinuance made as a result of the fiscal assessment. The CHHA must notify the social services district when it has reinstated the recipient's home health services.
102. 3. For each such recipient, the CHHA must then complete a new fiscal assessment in accordance with the provisions of 92 ADM-50 and notify the social services district of the results of the new fiscal assessment in accordance with 18 NYCRR 505.23(c) and 92 ADM-50.

103. 4. The social services district must send the recipient a timely notice and an opportunity to request a fair hearing to review any proposed reduction or discontinuance that the CHHA proposes to take as a result of the new fiscal assessment that the CHHA has completed in accordance with Step 3, above. The district must use the appropriate fair hearing notice attached to 92 ADM-50, but must modify the notice as follows:

     Agreement on Reductions:

     When the social services district agrees with the CHHA that the recipient's home health services must be reduced, the social services district must send the recipient a timely "Notice of Decision to Reduce (Fiscal Assessment) Home Health Services" (Attachment 4 to 92 ADM-50). Please note that the social services district does not refer these cases to the local professional director or designee. In the "BECAUSE" section of the notice, the district must thus cross out the words, "Local Professional Director or designee," and insert the words, "social services official," so that the sentence reads as follows: "Your case has been reviewed by the social services official and it is his/her determination, based on your current medical condition, that your home health care services must be reduced."

     Agreement on Discontinuances:

     When the social services district agrees with the CHHA that the recipient's home health services must be discontinued, the social services district must send the recipient a timely "Notice of Decision to Discontinue (Fiscal Assessment) Home Health Services" (Attachment 5 to 92 ADM-50). Again, please note that the social services district does not refer these cases to the local professional director or designee. Consequently, in the first sentence of the second paragraph of the notice, the district must cross out the words, "the Local Professional Director or designee has," and insert the words, "the social services official," so that the sentence reads as follows: "We are taking this action because the social services official has decided that:"

104. 5. The social services district must notify the CHHA of each recipient who timely requests a fair hearing with aid-continuing. The Department's Office of Administrative Hearings will notify the social services district of all such recipients.

105. 6. The CHHA must not reduce or discontinue the recipient's home health services until the effective date of the notice and must continue to provide the recipient with aid-continuing upon being notified by the district that the recipient has timely requested a hearing with aid-continuing. Aid-continuing is defined as the same type of home health services, at the same scope and frequency, as the recipient received immediately prior to the reduction or discontinuance made as a result of the fiscal assessment.

     The department will issue instructions as soon as possible regarding notice and fair hearing rights for home health services applicants. Pending such further instructions, no fiscal assessments are to be performed on any MA recipient who first applies for home health services on or after February 16, 1994.

     Please contact Mary Jane Conroy of my staff, at (518) 473-5565, should you have any questions regarding your responsibilities under this preliminary injunction.

(a) Policy, scope and definitions.