N.Y. Public Health Law § 2807-k: General hospital indigent care pool

§ 2807-k. General hospital indigent care pool. 1. Definitions. For

purposes of this section, the following words or phrases shall have the

following meanings, unless the context otherwise requires:

(a) "Major public general hospital" means all state operated general

hospitals, all general hospitals operated by the New York city health

and hospitals corporation as established by chapter one thousand sixteen

of the laws of nineteen hundred sixty-nine as amended and all other

public general hospitals having annual inpatient operating costs in

excess of twenty-five million dollars.

(b) "Nominal payment amount" shall mean the sum of the dollars

attributable to the application of an incrementally increasing

proportion of reimbursement for percentage increases in targeted need

according to a scale.

(c) "Targeted need" shall mean the relationship of uncompensated care

need to reported costs expressed as a percentage. Reported costs shall

mean costs allocated as prescribed by the commissioner to general

hospital inpatient and ambulatory services, excluding referred

ambulatory services. Targeted need shall be determined based on base

year data and statistics for the calendar year two years prior to the

distribution period. Base year data and statistics for the calendar year

two years prior to the distribution period shall be considered final,

for purposes of this section, one hundred twenty days after hospitals

receive the department's initial statewide rates for the same period as

the distribution period and shall include any appropriate revisions

reported by hospitals during such one hundred twenty days.

(d) "Uncompensated care need" means losses from bad debts reduced to

cost and the costs of charity care of a general hospital for inpatient

and ambulatory services, excluding referred ambulatory services. The

cost of services provided as an employment benefit or as a courtesy

shall not be included.

(e) "Uninsured care" means losses from bad debts reduced to cost and

the costs of charity care of a general hospital for inpatient and

ambulatory services, excluding referred ambulatory services, which are

not eligible for payment in whole or in part by a governmental agency,

insurer or other third-party payor on behalf of a patient, including

payments made directly to the general hospital and indemnity or similar

payments made to the person who is a payor of hospital services. The

cost of services denied reimbursement, other than emergency room

services, for lack of medical necessity or lack of compliance with prior

authorization requirements, or provided as an employment benefit, or as

a courtesy shall not be included.

(f) "Ambulatory services" of a general hospital shall mean all

services delivered on an ambulatory basis, including, for periods on and

after January first, two thousand four, services provided at qualified

hospital-controlled diagnostic and treatment centers except as otherwise

provided in subdivision thirteen of this section.

(g) "Qualified hospital-controlled diagnostic and treatment center"

shall mean a voluntary, non-profit diagnostic and treatment center

providing a comprehensive range of primary health care services that is

controlling, controlled by, or under common control with a general

hospital, and as of June thirtieth, two thousand three:

(i) qualified for an allocation of funds pursuant to section

twenty-eight hundred seven-p of this article or pursuant to section

seven of chapter four hundred thirty-three of the laws of nineteen

hundred ninety-seven, as amended; or

(ii) the outpatient department of such general hospital had been

designated a federally-qualified health center under section 330 of the

Public Health Service Act (42 U.S.C. § 254b) and had directly received a

grant under such section.

(h) "Underinsured" shall mean an individual with out of pocket medical

costs accumulated in the past twelve months that amount to more than ten

percent of such individual's gross annual income.

2. To the extent of funds appropriated therefor, funds shall be made

available for distribution by or on behalf of the state in accordance

with the following methodology, as payments under the state medical

assistance program provided pursuant to title eleven of article five of

the social services law, from a general hospital indigent care pool

established by the commissioner.

3. Each major public general hospital shall be allocated for

distribution from the pools established pursuant to this section for

each year through December thirty-first, two thousand fourteen, an

amount equal to the amount allocated to such major public general

hospital from the regional pool established pursuant to subdivision

seventeen of section twenty-eight hundred seven-c of this article for

the period January first, nineteen hundred ninety-six through December

thirty-first, nineteen hundred ninety-six, provided, however, that

payments on and after January first, two thousand nine shall be subject

to the provisions of subdivision five-a of this section.

4. (a) From funds in the pool for each year, thirty-six million

dollars shall be reserved on an annual basis through December

thirty-first, two thousand fourteen, for distribution as high need

adjustments in accordance with subdivision six of this section,

provided, however, that payments on and after January first, two

thousand nine shall be subject to the provisions of subdivision five-a

of this section.

(a-1) From funds in the pool for each year, twenty-seven million

dollars shall be reserved on an annual basis for the periods January

first, two thousand through December thirty-first, two thousand ten, for

distribution in accordance with subdivision sixteen of this section,

provided, however, that payments on and after January first, two

thousand nine through December thirty-first, two thousand nine shall be

subject to the provisions of subdivisions five-a and five-b of this

section, and shall be subject to the provisions of subdivision five-b of

this section for periods on and after January first, two thousand ten.

(b) The balance of funds in a pool not allocated in accordance with

subdivision three of this section or reserved for distributions pursuant

to subdivisions six and sixteen of this section shall be distributed to

eligible general hospitals, excluding major public general hospitals, on

the basis of each general hospital's targeted need share, adjusted for

transition factors in accordance with subdivision seven of this section.

(c) To be eligible for distributions from the pool, a general

hospital's targeted need must exceed one-half of one percent.

(d) For the periods January first, nineteen hundred ninety-seven

through December thirty-first, nineteen hundred ninety-seven, January

first, nineteen hundred ninety-eight through December thirty-first,

nineteen hundred ninety-eight, and January first, nineteen hundred

ninety-nine through December thirty-first, nineteen hundred ninety-nine

and on and after January first, two thousand, each eligible general

hospital's targeted need share shall mean the relationship of each

general hospital's nominal payment amount of uncompensated care need

determined in accordance with the scale specified in subdivision five of

this section to the nominal payment amounts of uncompensated care need

for all eligible general hospitals applied to funds available in the

pool.

5. The scale utilized for development of each eligible general

hospital's nominal payment amount shall be as follows:

Percentage of Reimbursement

Attributable to that Portion

Targeted Need Percentage of Targeted Need

0 -.5% 60%

.5+ -2% 65%

2+ -3% 70%

3+ -4% 75%

4+ -5% 80%

5+ -6% 85%

6+ -7% 90%

7+ -8% 95%

8+ 100%

5-a. Notwithstanding any inconsistent provision of this section,

section twenty-eight hundred seven-w of this article or any other

contrary provision of law, subject to the availability of federal

financial participation and within amounts appropriated, for periods on

and after January first, two thousand nine, ten percent of the aggregate

distributions to each general hospital made otherwise pursuant to this

section and section twenty-eight hundred seven-w of this article shall

be reserved and set aside and distributed in accordance with the

following:

(a) Thirteen million nine hundred thirty thousand dollars of such

reserved funds shall be distributed to major public hospitals and shall

be allocated proportionally, based on each facility's relative

uncompensated care need as determined in accordance with the provisions

of paragraph (c) of this subdivision; and

(b) Seventy million seven hundred seventy thousand dollars of such

reserved funds shall be distributed to general hospitals other than

major public general hospitals and shall be allocated proportionally,

based on each facility's relative uncompensated care need as determined

in accordance with the provisions of paragraph (c) of this subdivision;

and

(c) For the purposes of distributions in accordance with paragraphs

(a) and (b) of this subdivision, each facility's relative uncompensated

care need amount shall be determined in accordance with the following:

(i) inpatient units of services for all uninsured patients from the

calendar year two years prior to the distribution year, but excluding

referred ambulatory units of services, shall be multiplied by the

applicable Medicaid inpatient rates in effect for such prior year, but

not including prospective rate adjustments and rate add-ons, provided,

however, that for distributions on and after January first, two thousand

ten, the uncompensated amount for inpatient services shall utilize the

inpatient rates in effect as of July first of the prior year;

(ii) outpatient units of service for all uninsured patients from the

calendar year two years prior to the distribution year, including

emergency department services and ambulatory surgery services, but

excluding referred ambulatory services units of service, shall be

multiplied by Medicaid outpatient rates that reflect the exclusive

utilization of the ambulatory patient groups (APG) rate-setting

methodology as set forth in regulations promulgated pursuant to

subdivision two-a of section twenty-eight hundred seven of this article,

as in effect for the distribution year, provided further, however, that

for those services for which APG rates are not available the applicable

Medicaid outpatient rate shall be the rate in effect for the calendar

year two years prior to the distribution year;

(iii) the uncompensated care need for each facility for periods on and

after January first, two thousand ten shall be reduced by the sum of all

payment amounts collected from such patients; and

(iv) the total uncompensated care need for each facility subject to

this subdivision shall then be adjusted by application of the nominal

need scale set forth in subdivision five of this section.

(d)(i) For annual periods commencing on and after January first, two

thousand nine, no general hospital may receive disproportionate share

payment distributions made in accordance with this section, section

twenty-eight hundred seven-w of this article or made in accordance with

other provisions of law, that exceed, in aggregate, the costs incurred

by such general hospital during such period in furnishing inpatient and

outpatient hospital services to Medicaid eligible patients or to

patients who have no health insurance or other source of third party

coverage, net of all monies received from non-disproportionate share

related Medicaid payments and from payments made by such uninsured

patients. For purposes of this paragraph, non-Medicaid payments made to

a general hospital by the state or by a unit of local government within

the state for services provided to indigent patients shall not be

considered to be a source of third party payment.

(ii) Reductions pursuant to this paragraph shall be made in the

following sequence:

(A) payments in accordance with subdivision fourteen-f of section

twenty-eight hundred seven-c of this article;

(B) payments made to eligible hospitals pursuant to this section and

section twenty-eight hundred seven-w of this article.

(iii) Notwithstanding any contrary provision of this section or

section twenty-eight hundred seven-w of this article, in the event a

payment made pursuant to this section or section twenty-seven hundred

seven-w of this article exceeds a hospital's applicable facility

specific disproportionate share limit, then fifty percent of the amount

in excess of such limit shall be paid to such facility as a grant from

state funds available for distribution in accordance with this section

and section twenty-eight hundred seven-w of this article, provided,

however, that if payments made to an eligible rural hospital pursuant to

this subdivision or section twenty-eight hundred seven-w of this

article, result in payments in excess of such disproportionate share

limits, then up to one hundred forty thousand dollars of such payments

shall be made at one hundred percent of the amount in excess of such

limits for each eligible rural hospital.

(e) By no later than December first, two thousand ten, the

commissioner shall issue a report evaluating the impact of the

distributions made pursuant to this subdivision with regard to units of

service to uninsured patients provided by each facility, and with regard

to the extent of services provided by each facility to patients eligible

for financial aid in accordance with each facility's financial aid

policies and procedures as mandated by subdivision nine-a of this

section. Such report shall also include the use of data on services to

the uninsured to model the impact of the distribution methodology set

forth in this subdivision against all funding authorized pursuant to

this section and section twenty-eight hundred seven-w of this article.

(f) The commissioner shall conduct outreach and educational activities

to inform hospitals on matters relating to data collection and reporting

requirements related to services provided to the uninsured and patients

eligible for financial aid, including definitions to be utilized for

identifying uninsured units of service and proper identification of

out-of-pocket collections from uninsured patients.

5-b. Notwithstanding any inconsistent provision of this section,

section twenty-eight hundred seven-w of this article or any other

contrary provision of law and subject to the availability of federal

financial participation, for periods on and after May first, two

thousand nine, funds as hereinafter described shall be reserved and set

aside and distributed in accordance with the following:

(a) For the period May first, two thousand nine through December

thirty-first, two thousand nine payments shall be made as follows:

(i) Ninety percent of funds available for the two thousand nine

calendar year pursuant to paragraph (a-1) of subdivision four of this

section shall be reserved and set aside and distributed as Medicaid

disproportionate share (DSH) payments to the same hospitals and in the

same proportional amounts as received pursuant to such paragraph (a-1)

in two thousand eight;

(ii) Three hundred seven million dollars shall be distributed as

Medicaid DSH payments to facilities designated by the department as

teaching hospitals as of December thirty-first, two thousand eight in

accordance with a schedule of payments to be set forth in regulations

promulgated by the commissioner to compensate such facilities for

Medicaid and self-pay losses reported in each facility's two thousand

seven annual cost report;

(iii) Sixteen million dollars shall be proportionally distributed as

Medicaid DSH payments to non-teaching hospitals based upon their

proportion of uninsured losses as defined in paragraph (c) of

subdivision five-a of this section to such losses of all non-teaching

hospitals on a statewide basis;

(iv) Twenty-five million dollars shall be distributed as Medicaid DSH

payments to non-major public hospitals having Medicaid discharges of

forty percent or greater as established by the commissioner from data

reported in each hospital's two thousand seven annual cost report, in

accordance with a schedule to be set forth in regulations promulgated by

the commissioner, to compensate such facilities for projected Medicaid

net losses, as determined by the commissioner, stemming from

modifications to Medicaid payments made pursuant to a chapter of the

laws of two thousand nine.

(b) For annual periods beginning January first, two thousand ten

payments shall be made as follows:

(i) Two hundred sixty-nine million five hundred thousand dollars shall

be distributed as Medicaid DSH payments to non-major public teaching

hospitals, and such distributions shall be made on a regional basis to

cover, within amounts available for each region, each eligible

facility's proportional regional share of unmet need for two thousand

seven, provided, however, that such regions and regional allocations and

the definition of unmet need shall be set forth in regulations

promulgated by the commissioner;

(ii) Twenty-five million dollars shall be distributed as Medicaid DSH

payments to hospitals eligible for payments made pursuant to

subparagraph (iv) of paragraph (a) of this subdivision based upon each

facility's proportion of uninsured losses, as defined in paragraph (c)

of subdivision five-a of this section, to such losses for all hospitals

eligible for such payments;

(iii) Sixteen million dollars shall be distributed in accordance with

the provisions of subparagraph (iii) of paragraph (a) of this

subdivision;

(iv) Twenty-five million dollars shall be distributed in accordance

with the provisions of subparagraph (iv) of paragraph (a) of this

subdivision;

5-c. (a) Notwithstanding any contrary provision of law and subject to

the availability of federal financial participation, for the period July

first, two thousand ten through December thirty-first, two thousand ten,

distributions pursuant to this section and section twenty-eight hundred

seven-w of this article, shall reflect an aggregate reduction of

sixty-nine million four hundred thousand dollars, based on the

proportion of each hospital's indigent care allocations to the total

allocations of all hospitals' indigent care allocations prior to

application of this reduction, provided, however, that such reductions

shall not be applied to distributions to major public hospitals,

including major public hospitals operated by public benefit

corporations, and also shall not be applied to distributions made

pursuant to subparagraph (ii), (iii) or (iv) of paragraph (b) of

subdivision five-b of this section.

(b) Notwithstanding any contrary provision of law and subject to the

availability of federal financial participation, for the period January

first, two thousand eleven through December thirty-first, two thousand

eleven and each calendar year thereafter, distributions pursuant to this

section and section twenty-eight hundred seven-w of this article shall

reflect an aggregate reduction of seventy-three million two hundred

thousand dollars, based on the proportion of each hospital's indigent

care allocation to the total allocations of all hospitals' indigent care

allocations prior to application of this reduction, provided, however,

that such reductions shall not be applied to distributions to major

public hospitals, including major public hospitals operated by public

benefit corporations, and shall also not be applied to distributions

made pursuant to subparagraph (ii), (iii) or (iv) of paragraph (b) of

subdivision five-b of this section.

5-d. (a) Notwithstanding any inconsistent provision of this section,

section twenty-eight hundred seven-w of this article or any other

contrary provision of law, and subject to the availability of federal

financial participation, for periods on and after January first, two

thousand twenty, through December thirty-first, two thousand

twenty-nine, all funds available for distribution pursuant to this

section, except for funds distributed pursuant to paragraph (b) of

subdivision five-b of this section, and all funds available for

distribution pursuant to section twenty-eight hundred seven-w of this

article, shall be reserved and set aside and distributed in accordance

with the provisions of this subdivision.

(b) The commissioner shall promulgate regulations, and may promulgate

emergency regulations, establishing methodologies for the distribution

of funds as described in paragraph (a) of this subdivision and such

regulations shall include, but not be limited to, the following:

(i) Such regulations shall establish methodologies for determining

each facility's relative uncompensated care need amount based on

uninsured inpatient and outpatient units of service from the cost

reporting year two years prior to the distribution year, multiplied by

the applicable medicaid rates in effect January first of the

distribution year, as summed and adjusted by a statewide cost adjustment

factor and reduced by the sum of all payment amounts collected from such

uninsured patients, and as further adjusted by application of a nominal

need computation that shall take into account each facility's medicaid

inpatient share.

(ii) Annual distributions pursuant to such regulations for the two

thousand twenty through two thousand twenty-nine calendar years shall be

in accord with the following:

(A) (1) one hundred thirty-nine million four hundred thousand dollars

shall be distributed as Medicaid Disproportionate Share Hospital ("DSH")

payments to major public general hospitals;

(2) for the calendar years two thousand twenty-five and thereafter,

the total distributions to major public general hospitals shall be

subject to an aggregate reduction of one hundred thirteen million four

hundred thousand dollars annually, provided that general hospitals

operated by the New York city health and hospitals corporation as

established by chapter one thousand sixteen of the laws of nineteen

hundred sixty-nine, as amended, shall not receive distributions pursuant

to this subdivision; and

(B) nine hundred sixty-nine million nine hundred thousand dollars as

Medicaid DSH payments to eligible general hospitals, other than major

public general hospitals.

For the calendar years two thousand twenty through two thousand

twenty-two, the total distributions to eligible general hospitals, other

than major public general hospitals, shall be subject to an aggregate

reduction of one hundred fifty million dollars annually, provided that

eligible general hospitals, other than major public general hospitals,

that qualify as enhanced safety net hospitals under section two thousand

eight hundred seven-c of this article shall not be subject to such

reduction.

For the calendar years two thousand twenty-three through two thousand

twenty-nine, the total distributions to eligible general hospitals,

other than major public general hospitals, shall be subject to an

aggregate reduction of two hundred thirty-five million four hundred

thousand dollars annually, provided that eligible general hospitals,

other than major public general hospitals that qualify as enhanced

safety net hospitals under section two thousand eight hundred seven-c of

this article as of April first, two thousand twenty, shall not be

subject to such reduction.

Such reductions shall be determined by a methodology to be established

by the commissioner. Such methodologies may take into account the payor

mix of each non-public general hospital, including the percentage of

inpatient days paid by Medicaid.

(iii) For calendar years two thousand twenty through two thousand

twenty-nine, sixty-four million six hundred thousand dollars shall be

distributed to eligible general hospitals, other than major public

general hospitals, that experience a reduction in indigent care pool

payments pursuant to this subdivision, and that qualify as enhanced

safety net hospitals under section two thousand eight hundred seven-c of

this article as of April first, two thousand twenty. Such distribution

shall be established pursuant to regulations promulgated by the

commissioner and shall be proportional to the reduction experienced by

the facility.

(iv) Such regulations shall reserve one percent of the funds available

for distribution in the two thousand fourteen and two thousand fifteen

calendar years, and for calendar years thereafter, pursuant to this

subdivision, subdivision fourteen-f of section twenty-eight hundred

seven-c of this article, and sections two hundred eleven and two hundred

twelve of chapter four hundred seventy-four of the laws of nineteen

hundred ninety-six, in a "financial assistance compliance pool" and

shall establish methodologies for the distribution of such pool funds to

facilities based on their level of compliance, as determined by the

commissioner, with the provisions of subdivision nine-a of this section.

(c) The commissioner shall annually report to the governor and the

legislature on the distribution of funds under this subdivision

including, but not limited to:

(i) the impact on safety net providers, including community providers,

rural general hospitals and major public general hospitals;

(ii) the provision of indigent care by units of services and funds

distributed by general hospitals; and

(iii) the extent to which access to care has been enhanced.

6. Funds reserved for high need adjustments shall be distributed to

general hospitals, excluding major public general hospitals, with

nominal need in excess of four percent as follows: each general

hospital's share of the reserved amount shall be based on such

hospital's aggregate share of nominal need above four percent compared

to the total aggregate nominal need above four percent of all eligible

hospitals.

7. (a) Hospital specific transition adjustment. Notwithstanding any

inconsistent provision of this section, distributions to general

hospitals determined in accordance with subdivision four of this section

shall be adjusted as follows:

(i) For general hospitals which qualified for distributions pursuant

to paragraph (c) of subdivision nineteen of section twenty-eight hundred

seven-c of this article as of December thirty-first, nineteen hundred

ninety-five:

(A) for the period January first, nineteen hundred ninety-seven

through December thirty-first, nineteen hundred ninety-seven, each such

general hospital shall receive as an allocation one hundred percent of

the projected distribution, as of June first, nineteen hundred

ninety-seven, to such general hospital pursuant to subdivisions

fourteen-c and seventeen and paragraph (c) of subdivision nineteen of

section twenty-eight hundred seven-c of this article for nineteen

hundred ninety-six; and

(B) for the period January first, nineteen hundred ninety-eight

through December thirty-first, nineteen hundred ninety-eight, each such

general hospital shall receive as an allocation seventy-five percent of

the amount determined in accordance with clause (A) of this subparagraph

and twenty-five percent of the amount determined in accordance with

subdivision four of this section; and

(C) for the period January first, nineteen hundred ninety-nine through

December thirty-first, nineteen hundred ninety-nine, each such general

hospital shall receive as an allocation fifty percent of the amount

determined in accordance with clause (A) of this subparagraph and fifty

percent of the amount determined in accordance with subdivision four of

this section; and

(D) for the period January first, two thousand through December

thirty-first, two thousand, each such general hospital shall receive as

an allocation twenty-five percent of the amount determined in accordance

with clause (A) of this subparagraph and seventy-five percent of the

amount determined in accordance with subdivision four of this section

provided, however, that for any general hospital whose distribution is

greater when determined solely in accordance with subdivisions four and

six of this section than when determined according to this clause, such

general hospital's distribution shall not be adjusted pursuant to this

clause; and

(E) for periods on and after January first, two thousand one, each

such general hospital shall receive as an allocation one hundred percent

of the amount determined in accordance with subdivision four of this

section.

(ii) For all other general hospitals, excluding major public general

hospitals, general hospitals qualifying for an adjustment pursuant to

subparagraph (i) of this paragraph, general hospitals which qualified

for an adjustment pursuant to subdivision fourteen-d of section

twenty-eight hundred seven-c of this article and rural general hospitals

that met the qualifications as a rural general hospital pursuant to

paragraph (f) of subdivision four of section twenty-eight hundred

seven-c of this article in nineteen hundred ninety-six:

(A) for the period January first, nineteen hundred ninety-seven

through December thirty-first, nineteen hundred ninety-seven, each such

general hospital shall receive as an allocation fifty percent of the

projected distribution, as of June first, nineteen hundred ninety-seven,

to such general hospital pursuant to subdivision seventeen of section

twenty-eight hundred seven-c of this article for nineteen hundred

ninety-six and fifty percent of the amount determined in accordance with

subdivision four of this section; and

(B) for the period January first, nineteen hundred ninety-eight

through December thirty-first, nineteen hundred ninety-eight, each such

general hospital shall receive as an allocation twenty-five percent of

the projected distribution, as of June first, nineteen hundred

ninety-seven, to such general hospital pursuant to subdivision seventeen

of section twenty-eight hundred seven-c of this article for nineteen

hundred ninety-six and seventy-five percent of the amount determined in

accordance with subdivision four of this section.

(b) Hospital category adjustment. Notwithstanding any inconsistent

provision of this section, distributions to each general hospital,

excluding major public general hospitals, for nineteen hundred

ninety-seven determined in accordance with subdivision four of this

section and paragraph (a) of this subdivision within the categories

specified in subparagraph (i) of this paragraph shall be adjusted in

accordance with subparagraph (ii) of this paragraph.

(i)(A) General hospitals that qualified for distributions in

accordance with subdivision fourteen-d of section twenty-eight hundred

seven-c of this article for nineteen hundred ninety-six.

(B) Rural general hospitals that met the qualifications as a rural

general hospital pursuant to paragraph (f) of subdivision four of

section twenty-eight hundred seven-c of this article for nineteen

hundred ninety-six.

(C) All other general hospitals, excluding general hospitals that

qualified for distributions pursuant to paragraph (c) of subdivision

nineteen of section twenty-eight hundred seven-c of this article.

(ii) For each category specified in subparagraph (i) of this

paragraph, fifty percent of the amount by which the allocation pursuant

to subdivision four of this section and paragraph (a) of this

subdivision to a general hospital within such category exceeds the

projected distribution, as of June first, nineteen hundred ninety-seven,

pursuant to subdivision seventeen and, if applicable, subdivision

fourteen-d of section twenty-eight hundred seven-c of this article for

nineteen hundred ninety-six to such general hospital shall be reserved

by the commissioner for allocation to general hospitals within such

category that would experience a loss based on such comparison based on

each such general hospital's proportionate share of the aggregate losses

for all general hospitals within such category; provided however, that

the amount reserved within a category shall not exceed the aggregate

amount of losses within such category.

8. Notwithstanding any inconsistent provision of this section, up to

five percent of the amount allocated for each of the periods for

distributions pursuant to this section may be transferred by the

commissioner, to the extent of funds appropriated therefor, and

allocated for distributions pursuant to the child health insurance plan

established pursuant to title one-A of article twenty-five of this

chapter.

9. In order for a general hospital to participate in the distribution

of funds from the pool, the general hospital must implement minimum

collection policies and procedures approved by the commissioner,

utilizing only a uniform financial assistance form developed and

provided by the department. All general hospitals that do not

participate in the indigent care pool shall also utilize only the

uniform financial assistance form and otherwise comply with subdivision

nine-a of this section governing the provision of financial assistance

and hospital collection procedures.

9-a. (a) For periods on and after January first, two thousand nine,

general hospitals shall, effective for periods on and after January

first, two thousand seven, establish financial aid policies and

procedures, in accordance with the provisions of this subdivision, for

reducing charges otherwise applicable to low-income individuals without

health insurance or underinsured individuals, or who have exhausted

their health insurance benefits, and who can demonstrate an inability to

pay full charges, and also, at the hospital's discretion, for reducing

or discounting the collection of co-pays and deductible payments from

those individuals who can demonstrate an inability to pay such amounts.

Immigration status shall not be an eligibility criterion for the purpose

of determining financial assistance under this section.

(b) Such reductions from charges for patients with incomes below at

least four hundred percent of the federal poverty level shall result in

a charge to such individuals that does not exceed the amount that would

have been paid for the same services provided pursuant to title XIX of

the federal social security act (medicaid), and provided further that

such amounts shall be adjusted according to income level as follows:

(i) For patients with incomes below at least two hundred percent of

the federal poverty level, the hospital shall waive all charges. No

nominal payment shall be collected;

(ii) For patients with incomes between at least two hundred percent

and up to three hundred percent of the federal poverty level, the

hospital shall collect no more than the amount identified after

application of a proportional sliding fee schedule under which patients

with lower incomes shall pay the lowest amount. Such schedule shall

provide that the amount the hospital may collect for such patients

increases in equal increments as the income of the patient increases, up

to a maximum of ten percent of the amount that would have been paid for

the same services provided pursuant to title XIX of the federal social

security act (medicaid), or for underinsured patients, up to a maximum

of ten percent of the amount that would have been paid pursuant to such

patient's insurance cost sharing;

(iii) For patients with incomes between at least three hundred one

percent and four hundred percent of the federal poverty level, the

hospital shall collect no more than the amount identified after

application of a proportional sliding fee schedule under which patients

with lower income shall pay the lowest amounts. Such schedule shall

provide that the amount the hospital may collect for such patients

increases from the ten percent figure described in subparagraph (ii) of

this paragraph in equal increments as the income of the patient

increases, up to a maximum of twenty percent of the amount that would

have been paid for the same services provided pursuant to title XIX of

the federal social security act (medicaid), or for underinsured

patients, up to a maximum of twenty percent of the amount that would

have been paid pursuant to such patient's insurance cost sharing;

(iv) Nothing in this paragraph shall be construed to limit a

hospital's ability to establish patient eligibility for payment

discounts at income levels higher than those specified herein and/or to

provide greater payment discounts for eligible patients than those

required by this paragraph.

(c) Such policies and procedures shall be clear, understandable, in

writing and publicly available in summary form and each general hospital

participating in the pool shall ensure that every patient is made aware

of the existence of such policies and procedures and is provided, in a

timely manner, with a summary of such policies and procedures. Any

summary provided to patients shall, at a minimum, include specific

information as to income levels used to determine eligibility for

assistance, a description of the primary service area of the hospital

and the means of applying for assistance. For general hospitals with

twenty-four hour emergency departments, such policies and procedures

shall require the written notification of patients during the intake and

registration process, and during discharge of the patient, and through

the conspicuous posting of language-appropriate information in the

general hospital, and information on bills and statements sent to

patients, that financial aid may be available to qualified patients and

how to obtain further information. For specialty hospitals without

twenty-four hour emergency departments, such notification shall take

place through written materials provided to patients during the intake

and registration process prior to the provision of any health care

services or procedures, and during discharge of the patient, and through

information on bills and statements sent to patients, that financial aid

may be available to qualified patients and how to obtain further

information. Application materials shall include a notice to patients

that upon submission of a completed application, including any

information or documentation needed to determine the patient's

eligibility pursuant to the hospital's financial assistance policy, the

patient may disregard any bills until the hospital has rendered a

decision on the application in accordance with this paragraph.

(d) Such policies and procedures shall include clear, objective

criteria for determining a patient's ability to pay and for providing

such adjustments to payment requirements as are necessary. In addition

to adjustment mechanisms such as sliding fee schedules and discounts to

fixed standards, such policies and procedures shall also provide for the

use of installment plans for the payment of outstanding balances by

patients pursuant to the provisions of the financial assistance policy.

The monthly payment under such a plan shall not exceed five percent of

the gross monthly income of the patient. The rate of interest charged to

the patient on the unpaid balance, if any, shall not exceed two percent

and no plan shall include an accelerator or similar clause under which a

higher rate of interest is triggered upon a missed payment. If such

policies and procedures include a requirement of a deposit prior to

non-emergent, medically-necessary care, such deposit must be included as

part of any financial aid consideration. Such policies and procedures

shall be applied consistently to all eligible patients.

(e) Such policies and procedures shall permit patients to apply for

assistance at any time during the collection process. Such policies and

procedures may require that patients seeking payment adjustments provide

appropriate financial information and documentation in support of their

application, provided, however, that such application process shall not

be unduly burdensome or complex. General hospitals shall, upon request,

assist patients in understanding the hospital's policies and procedures

and in applying for payment adjustments. Application forms shall be

printed in the "primary languages" of patients served by the general

hospital. For the purposes of this paragraph, "primary languages" shall

include any language that is either (i) used to communicate, during at

least five percent of patient visits in a year, by patients who cannot

speak, read, write or understand the English language at the level of

proficiency necessary for effective communication with health care

providers, or (ii) spoken by non-English speaking individuals comprising

more than one percent of the primary hospital service area population,

as calculated using demographic information available from the United

States Bureau of the Census, supplemented by data from school systems.

Decisions regarding such applications shall be made within thirty days

of receipt of a completed application. Such policies and procedures

shall require that the hospital issue any denial/approval of such

application in writing with information on how to appeal the denial and

shall require the hospital to establish an appeals process under which

it will evaluate the denial of an application. Nothing in this

subdivision shall be interpreted as prohibiting a hospital from making

the availability of financial assistance contingent upon the patient

first applying for coverage under title XIX of the social security act

(medicaid) or another publicly subsidized insurance program if, in the

judgment of the hospital, the patient may be eligible for medicaid or

another publicly subsidized insurance program, and upon the patient's

cooperation in following the financial assistance application

requirements, including the provision of information needed to make a

determination on the patient's application in accordance with the

hospital's financial assistance policy, provided, however, that this

requirement shall not apply to any patient that would otherwise not

qualify for coverage based on their immigration status.

(f) Such policies and procedures shall provide that patients with

incomes below four hundred percent of the federal poverty level are

deemed presumptively eligible for payment adjustments and shall conform

to the requirements set forth in paragraph (b) of this subdivision,

provided, however, that nothing in this subdivision shall be interpreted

as precluding hospitals from extending such payment adjustments to other

patients, either generally or on a case-by-case basis. Such policies and

procedures shall provide financial aid for emergency hospital services,

including emergency transfers pursuant to the federal emergency medical

treatment and active labor act (42 USC 1395dd), to patients who reside

in New York state and for medically necessary hospital services for

patients who reside in the hospital's primary service area as determined

according to criteria established by the commissioner. In developing

such criteria, the commissioner shall consult with representatives of

the hospital industry, health care consumer advocates and local public

health officials. Such criteria shall be made available to the public no

less than thirty days prior to the date of implementation and shall, at

a minimum:

(i) prohibit a hospital from developing or altering its primary

service area in a manner designed to avoid medically underserved

communities or communities with high percentages of uninsured residents;

(ii) ensure that every geographic area of the state is included in at

least one general hospital's primary service area so that eligible

patients may access care and financial assistance; and

(iii) require the hospital to notify the commissioner upon making any

change to its primary service area, and to include a description of its

primary service area in the hospital's annual implementation report

filed pursuant to subdivision three of section twenty-eight hundred

three-l of this article.

(g) Nothing in this subdivision shall be interpreted as precluding

hospitals from extending payment adjustments for medically necessary

non-emergency hospital services to patients outside of the hospital's

primary service area. For patients determined to be eligible for

financial aid under the terms of a hospital's financial aid policy, such

policies and procedures shall prohibit any limitations on financial aid

for services based on the medical condition of the applicant, other than

typical limitations or exclusions based on medical necessity or the

clinical or therapeutic benefit of a procedure or treatment.

(h) Such policies and procedures shall prohibit the denial of

admission or denial of treatment for services that are reasonably

anticipated to be medically necessary because the patient has an unpaid

medical bill. Such policies and procedures shall prohibit the forced

sale or foreclosure of a patient's primary residence in order to collect

an outstanding medical bill and shall require the hospital to refrain

from sending an account to collection if the patient has submitted a

completed application for financial aid, including any required

supporting documentation, while the hospital determines the patient's

eligibility for such aid. Such policies and procedures shall prohibit

the sale of medical debt accumulated pursuant to this section to a third

party, unless the third party explicitly purchases such medical debt in

order to relieve the debt of the patient. Such policies and procedures

shall provide for written notification, which shall include notification

on a patient bill, to a patient not less than thirty days prior to the

referral of debts for collection and shall require that the collection

agency obtain the hospital's written consent prior to commencing a legal

action. Such policies and procedures shall prohibit a hospital from

commencing a legal action related to the recovery of medical debt or

unpaid bills against patients with incomes below four hundred percent of

the federal poverty level. In any legal action related to the recovery

of medical debt or unpaid bills by or on behalf of a hospital, the

complaint shall be accompanied by an affidavit by the hospital's chief

financial officer stating that based upon the hospital's reasonable

effort to determine the patient's income, the patient whom they are

taking legal action against does not have an income below four hundred

percent of the federal poverty level. Such policies and procedures shall

require all general hospital staff who interact with patients or have

responsibility for billing and collections to be trained in such

policies and procedures, and require the implementation of a mechanism

for the general hospital to measure its compliance with such policies

and procedures. Such policies and procedures shall require that any

collection agency under contract with a general hospital for the

collection of debts follow the hospital's financial assistance policy,

including providing information to patients on how to apply for

financial assistance where appropriate. Such policies and procedures

shall prohibit collections from a patient who is determined to be

eligible for medical assistance pursuant to title XIX of the federal

social security act at the time services were rendered and for which

services medicaid payment is available.

(i) Reports required to be submitted to the department by each general

hospital as a condition for participation in the pools, and which

contain, in accordance with applicable regulations, a certification from

an independent certified public accountant or independent licensed

public accountant or an attestation from a senior official of the

hospital that the hospital is in compliance with conditions of

participation in the pools, shall also contain, for reporting periods on

and after January first, two thousand seven:

(i) a report on hospital costs incurred and uncollected amounts in

providing services to eligible patients without insurance during the

period covered by the report;

(ii) hospital costs incurred and uncollected amounts for deductibles

and coinsurance for eligible patients with insurance or other

third-party payor coverage;

(iii) the number of patients, organized according to United States

postal service zip code, who applied for financial assistance pursuant

to the hospital's financial assistance policy, and the number, organized

according to United States postal service zip code, whose applications

were approved and whose applications were denied;

(iv) the number of patients, including their age, race, ethnicity,

gender and insurance status, who applied for financial assistance under

the hospital's financial assistance policy, and the number of patients,

including their age, race, ethnicity, gender and insurance status, whose

applications were approved and denied;

(v) the reimbursement received for indigent care from the pool

established pursuant to this section;

(vi) the amount of funds that have been expended on charity care from

charitable bequests made or trusts established for the purpose of

providing financial assistance to patients who are eligible in

accordance with the terms of such bequests or trusts;

(vii) for hospitals located in social services districts in which the

district allows hospitals to assist patients with such applications, the

number of applications for eligibility under title XIX of the social

security act (medicaid) that the hospital assisted patients in

completing and the number denied and approved; and

(viii) the hospital's financial losses resulting from services

provided under medicaid.

(j) Within ninety days of the effective date of this subdivision each

hospital shall submit to the commissioner a written report on its

policies and procedures for financial assistance to patients which are

used by the hospital on the effective date of this subdivision. Such

report shall include copies of its policies and procedures, including

material which is distributed to patients, and a description of the

hospital's financial aid policies and procedures. Such description shall

include the income levels of patients on which eligibility is based, the

financial aid eligible patients receive and the means of calculating

such aid, and the service area, if any, used by the hospital to

determine eligibility.

(k) Notwithstanding section twelve of this chapter, failure to comply

with the provisions of this subdivision by a hospital on and after the

date of such determination shall make such hospital liable for a civil

penalty not to exceed ten thousand dollars for each such violation. The

imposition of such civil penalties shall be subject to the provisions of

section twelve-a of this chapter.

(l) A hospital or its collection agent shall not commence a civil

action against a patient or delegate a collection activity to a debt

collector for nonpayment for at least one hundred eighty days after the

first post-service bill is issued and until a hospital has made

reasonable efforts to determine whether a patient qualifies for

financial assistance.

10. In order for a general hospital to be eligible for distribution of

funds from the pool, such general hospital if it provides obstetrical

care and services must be in compliance with the provisions of paragraph

(e) of subdivision sixteen of section twenty-eight hundred seven-c of

this article.

11. Minimum hospital procedures to determine the availability of

insurance or other third-party coverage for hospital services shall be

specified by the commissioner.

12. Each general hospital shall submit reports to the department at

such time and in such form as the commissioner shall require of:

(a) hospital costs incurred and uncollected amounts in providing

services to the uninsured during the period covered by the report; and

(b) hospital costs incurred and uncollected amounts for deductibles

and coinsurance for patients with insurance or other third-party payor

coverage.

(c) Such reports shall comply with the reporting requirements

established for receipt of bad debt and charity care pool payments as

provided in accordance with section twenty-eight hundred seven-c of this

article and regulations promulgated thereunder for periods prior to

January first, nineteen hundred ninety-seven.

13. Distributions to general hospitals pursuant to this section and

the adjustments provided in accordance with subdivision fourteen-f of

section twenty-eight hundred seven-c of this article shall be considered

disproportionate share payments for inpatient hospital services to

general hospitals serving a disproportionate number of low income

patients with special needs for purposes of providing assurances to the

secretary of health and human services as necessary to meet federal

requirements for securing federal financial participation pursuant to

title XIX of the federal social security act.

14. Notwithstanding any inconsistent provision of law to the contrary,

the availability or payment of funds to a general hospital pursuant to

this section shall not be admissible as a defense, offset or reduction

in any action or proceeding relating to any bill or claim for amounts

due for hospital services provided.

15. Revenue from distributions pursuant to this section and

adjustments pursuant to subdivision fourteen-f of section twenty-eight

hundred seven-c of this article shall not be included in gross revenue

received for purposes of the assessments pursuant to subdivision

eighteen of section twenty-eight hundred seven-c of this article,

subject to the provisions of paragraph (e) of subdivision eighteen of

section twenty-eight hundred seven-c of this article, and shall not be

included in gross revenue received for purposes of the assessments

pursuant to section twenty-eight hundred seven-d of this article,

subject to the provisions of subdivision twelve of section twenty-eight

hundred seven-d of this article.

16. Supplemental indigent care distributions. From available resources

established pursuant to paragraph (a-1) of subdivision four of this

section, each hospital shall receive a proportionate share, provided

that no hospital shall receive less than the reduction amount calculated

pursuant to paragraph (d) of subdivision three of section twenty-eight

hundred seven-m of this article, subject to hospital specific

disproportionate share payment limits calculated in accordance with

subdivision twenty-one of section twenty-eight hundred seven-c of this

article.

17. Indigent care reductions. For each hospital receiving payments

pursuant to paragraph (i) of subdivision thirty-five of section

twenty-eight hundred seven-c of this article, the commissioner shall

reduce the sum of any amounts paid pursuant to this section and pursuant

to section twenty-eight hundred seven-w of this article, as computed

based on projected facility specific disproportionate share hospital

ceilings, by an amount equal to the lower of such sum or each such

hospital's payments pursuant to paragraph (i) of subdivision thirty-five

of section twenty-eight hundred seven-c of this article, provided,

however, that any additional aggregate reductions enacted in a chapter

of the laws of two thousand ten to the aggregate amounts payable

pursuant to this section and pursuant to section twenty-eight hundred

seven-w of this article shall be applied subsequent to the adjustments

otherwise provided for in this subdivision.