N.Y. Public Health Law § 2999-q: Accountable care organizations; requirements

§ 2999-q. Accountable care organizations; requirements. 1. The

commissioner shall make regulations establishing criteria for

certificates of authority, quality standards for ACOs, reporting

requirements and other matters deemed to be appropriate and necessary in

the operation and evaluation of ACOs under this article. In making such

regulations, the commissioner shall consult with the superintendent of

financial services, health care providers, third-party health care

payers, advocates representing patients, and other appropriate parties.

Such regulations shall be consistent, to the extent practical and

consistent with this article, with CMS regulations for accountable care

organizations under the Medicare program.

2. Such regulations may, and shall as necessary for purposes of this

article, address matters including but not limited to:

(a) The governance, leadership and management structure of the ACO

that reasonably and equitably represents the ACO's participants and the

ACO's patients, including the manner in which clinical and

administrative systems and clinical participation will be managed;

(b) Definition of the population proposed to be served by the ACO,

which may include reference to a geographical area and patient

characteristics;

(c) The character, competence and fiscal responsibility and soundness

of an ACO and its principals, if and to the extent deemed appropriate by

the commissioner;

(d) The adequacy of an ACO's network of participating health care

providers, including primary care health care providers;

(e) Mechanisms by which an ACO will provide, manage, and coordinate

quality health care for its patients including where practicable

elevating the services of primary care health care providers to meet

patient-centered medical home standards, coordinating services for

complex high-need patients, and providing access to health care

providers that are not participants in the ACO;

(f) Mechanisms by which the ACO shall receive and distribute payments

to its participating health care providers, which may include incentive

payments (which may include medical home payments) or mechanisms for

pooling payments received by participating health care providers from

third-party payers and patients;

(g) Mechanisms and criteria for accepting health care providers to

participate in the ACO that are related to the needs of the patient

population to be served and needs and purposes of the ACO, and

preventing unreasonable discrimination;

(h) Mechanisms for quality assurance and grievance procedures for

patients or health care providers where appropriate, and procedures for

reviewing and appealing patient care decisions;

(i) Mechanisms that promote evidence-based health care, patient

engagement, coordination of care, electronic health records, including

participation in health information exchanges, other enabling

technologies and integrated, efficient and effective health care

services;

(j) Performance standards for, and measures to assess, the quality and

utilization of care provided by an ACO;

(k) Appropriate requirements for ACOs to promote compliance with the

purposes of this article;

(l) Posting on the department's website information about ACOs that

would be useful to health care providers and patients, including similar

metrics as the commissioner publishes for other organizations such as

Medicaid managed care providers under section three hundred sixty-four-j

of the social services law and health homes under section three hundred

sixty-five-l of the social services law;

(m) Requirements for the submission of information and data by ACOs

and their participating and affiliated health care providers as

necessary for the evaluation of the success of ACOs;

(n) Protection of patient rights as appropriate;

(o) The impact of the establishment and operation of an ACO, including

providing that it shall not diminish access to any health care service

for the population served and in the area served; and

(p) Establishment of standards, as appropriate, to promote the ability

of an ACO to participate in applicable federal programs for ACOs.

3. (a) The ACO shall provide for meaningful participation in the

composition and control of the ACO's governing body for ACO participants

or their designated representatives.

(b) The ACO governing body shall include at least one representative

of each of the following groups: (i) recipients of Medicaid, family

health plus, or child health plus; (ii) persons with other health

coverage; and (iii) persons who do not have health coverage. Such

representatives shall have no conflict of interest with the ACO and no

immediate family member with a conflict of interest with the ACO.

(c) At least seventy-five percent control of the ACO's governing body

shall be held by ACO participants.

(d) Members of the ACO governing body shall have a fiduciary

relationship with the ACO and shall be subject to conflict of interest

requirements adopted by the ACO and in regulations of the commissioner.

(e) The ACO's finances, including dividends and other return on

capital, debt structure, executive compensation, and ACO participant

compensation, shall be arranged and conducted to maximize the

achievement of the purposes of this article.

4. (a) An ACO shall use its best efforts to include among its

participants, on reasonable terms and conditions, any

federally-qualified health center that is willing to be a participant

and that serves the area and population served by the ACO.

(b) An ACO may seek to focus on providing health care services to

patients with one or more chronic conditions or special needs. However,

an ACO may not otherwise, on the basis of a person's medical or

demographic characteristics, discriminate for or against or discourage

or encourage any person or person with respect to enrolling or

participating in the ACO.

(c) An ACO shall not, by incentives or otherwise, discourage a health

care provider from providing or an enrollee or patient from seeking

appropriate health care services.

(d) An ACO shall not discriminate against or disadvantage a patient or

patient's representative for the exercise of patient autonomy.

(e) An ACO may not limit or restrict beneficiaries to use of providers

contracted or affiliated with the ACO. An ACO may not require a patient

to obtain the prior approval, from a primary care gatekeeper or

otherwise, before utilizing the services of other providers. An ACO may

not make adverse determinations as defined in article forty-nine of this

chapter.

5. An ACO may provide care coordination for its participating

patients, which (a) shall include but not be limited to managing,

referring to, locating, coordinating, and monitoring health care

services for the member to assure that all medically necessary health

care services are made available to and are effectively used by the

member in a timely manner, consistent with patient autonomy; and (b) is

not a requirement for prior authorization for health care services, and

referral shall not be required for a member to receive a health care

service.

6. (a) Subject to regulations of the commissioner: (i) an ACO may

enter into arrangements with one or more third-party health care payers

to establish payment methodologies for health care services for the

third-party health care payer's enrollees provided by the ACO or for

which the ACO is responsible, such as full or partial capitation or

other arrangements; (ii) such arrangements may include provision for the

ACO to receive and distribute payments to the ACO's participating health

care providers, including incentive payments and payments for health

care services from third-party health care payers and patients; and

(iii) an ACO may include mechanisms for pooling payments received by

participating health care providers from third-party payers and

patients.

(b) Subject to regulations of the commissioner, the commissioner, in

consultation with the superintendent of financial services, may

authorize a third-party health care payer to participate in payment

methodologies with an ACO under this subdivision, notwithstanding any

contrary provision of this chapter, the insurance law, the social

services law, or the elder law, on finding that the payment methodology

is consistent with the purposes of this article.

(c) An ACO may contract with a third-party health care payer to serve

as all or part of the third-party health care payer's provider network

or care coordination agent, provided in that case the ACO shall be

subject to all provisions of this chapter or the insurance law which are

applicable to the provider network of the third-party health care payer.

7. The provision of health care services directly or indirectly by an

ACO through health care providers shall not be considered the practice

of a profession under title eight of the education law by the ACO.