N.Y. Public Health Law § 4403-c: Comprehensive HIV special needs plan certification

* § 4403-c. Comprehensive HIV special needs plan certification. 1. No

person or group of persons may operate a comprehensive HIV special needs

plan without first obtaining a certificate of authority from the

commissioner. Any person may apply for a comprehensive HIV special needs

certificate of authority, provided, however, that a shared health

facility, as defined in article forty-seven of this chapter, shall not

be eligible for such a certificate.

2. An applicant for certification shall submit the following

information and documentation to the satisfaction of the commissioner:

(a) a copy of the applicant's basic organizational documents and

agreements of the applicant and all network members, including all

contracts and agreements relating to the provision of HIV services;

(b) a copy of any current licensure or certification maintained by the

applicant;

(c) a description of any experience the applicant may have had in

providing HIV services which are licensed, certified, funded or approved

by the department, including identification of any disciplinary,

administrative or criminal proceedings related to such services in the

past ten years, the resolution thereof, and any other proceedings

currently pending;

(d) full disclosure of the financial condition of the applicant and of

members of the board, officers, controlling persons, owners and

partners, including, but not limited to, a statement of the applicant's

assets, resources, accounts receivable, liabilities and proposed sources

and uses of funds and the most recent certified income statement and

balance sheet;

(e) a demonstration of the applicant's ability to provide or continue

to provide quality HIV services;

(f) a description of the geographic area served and to be served by

the applicant;

(g) a description of the applicant's current capacity, and proposed

capacity, to provide or arrange for the provision of comprehensive HIV

services for a defined geographic area to a defined population; and

(h) such other information as the commissioner shall require.

3. The commissioner shall not issue a comprehensive HIV special needs

plan certificate of authority to an applicant therefor unless the

applicant demonstrates that:

(a) it has defined an enrolled population to which the comprehensive

HIV special needs plan proposes to provide comprehensive HIV health

services, has demonstrated a willingness to enroll any person who is

eligible for enrollment within its defined catchment area and has

established a mechanism by which the enrolled population may participate

in determining the policies of the organization;

(b) it has defined a specific network of providers and facilities that

are capable of providing comprehensive HIV special needs services to the

enrolled population described in paragraph (a) of this subdivision;

(c) it has the capability of organizing, marketing, managing,

promoting and operating a comprehensive HIV special needs plan;

(d) it is financially responsible and sound and may be expected to

meet its obligations to its enrolled members. For the purposes of this

paragraph, "financially responsible" means that the applicant is capable

of assuming full financial risk on a prospective basis for the provision

of comprehensive HIV special needs services within the geographic

catchment area defined by the applicant except that it may allow

providers to share financial risk under the terms of their contract, or

it may obtain insurance or make other arrangements for the cost of

providing comprehensive HIV special needs health services to enrollees;

any insurance or other arrangements proposed to meet this requirement

shall be approved as to adequacy as a prerequisite to the issuance of

any comprehensive HIV special needs certificate of authority by the

commissioner. In making a determination of financial soundness, the

commissioner shall consider financial information, contracts and

agreements required as part of the application for a certificate of

authority and any other information that the commissioner shall deem

necessary to make that determination. For purposes of this section, any

grants awarded to an applicant contingent upon its approval as a HIV

special needs plan certified pursuant to this section, shall be

considered when making a determination of fiscal soundness;

(e) it has established a system which appropriately accounts for costs

and a uniform system of reports and audits meeting the requirements of

the commissioner;

(f) the character, competence and standing in the community of the

proposed incorporators, directors, sponsors, or stockholders of the

plan, and its network providers, are satisfactory to the commissioner;

(g) it is willing and able to assure that necessary HIV services will

be provided in a timely manner to assure the availability and

accessibility of adequate personnel and facilities; to assure continuity

of care for enrollees; and to implement procedures for referrals, as

requested, to appropriate care for affected family members of the

enrolled population;

(h) the prepayment mechanism of its comprehensive HIV special needs

plan, the bases upon which the providers of health care are compensated,

and the anticipated use of allied health personnel are conducive to the

use of ambulatory care and the efficient use of hospital services;

(i) acceptable procedures have been established for the conduct of

outreach and enrollment of persons with HIV infection including persons

who are homeless, substance users and other vulnerable populations;

(j) acceptable procedures have been developed to communicate with

participants in a linguistically and culturally competent manner;

(k) acceptable procedures have been established to monitor the quality

of care provided by the plan and to assure that all care rendered meets

clinical standards of HIV care as established and maintained by the AIDS

Institute of the New York state department of health;

(l) approved mechanisms exist to resolve complaints and grievances

initiated by any enrolled member; and

(m) the requirements of this article and any regulations promulgated

pursuant thereto have been met and will continue to be met.

4. The commissioner shall not issue a comprehensive HIV special needs

certificate of authority unless the applicant has demonstrated to the

commissioner's satisfaction that the requirements of this article and

any regulations promulgated pursuant thereto have been met and will

continue to be met, provided, however, that the commissioner may impose

alternative requirements, or portions thereof, particularly those

related to capitalization, if he or she determines that such alternative

requirements will serve to promote the high quality, efficient provision

of comprehensive health services or services required by HIV positive

persons, will promote the development of HIV special needs plans and

that the proposed plan will provide an appropriate and cost-effective

alternative method for the delivery of such services in a manner which

will meet the needs of the population to be served.

5. The commissioner shall make a determination on an application after

receipt of all required and requested information and documentation.

6. The commissioner shall review and approve any current or proposed

contracts or agreements with current or prospective network members, and

provided further, that the commissioner shall specifically review and

approve any proposed provisions in such contracts or agreements with the

prospective or existing network members which specify any risk sharing

arrangements.

7. The commissioner may revoke, limit or annul a comprehensive HIV

special needs plan certificate of authority in accordance with the

provisions of section forty-four hundred four of this article.

8. A comprehensive HIV special needs plan, certified pursuant to this

section, shall be responsible for providing or arranging for all medical

assistance services defined under section three hundred sixty-five-a of

the social services law, including delivery of a comprehensive benefit

package, which shall include early and periodic screening; adolescent

health; diagnosis and treatment and child/teen health screenings;

referrals for necessary services; linkages to HIV counseling and

testing; and HIV prevention and education activities. A comprehensive

HIV special needs plan provider shall be responsible for assisting

enrollees in the prudent selection of such services including but not

limited to:

(a) referral, coordination, monitoring and follow-up with regard to

other medical services providers, as appropriate for diagnosis and

treatment, or direct provision of all medical assistance services;

(b) methods of assuring enrollees' access to specialty services

outside the comprehensive HIV special needs plan's network or panel when

the plan does not have a provider with the appropriate training and

experience in its network to meet the particular health care needs of

the participant;

(c) the establishment of appropriate utilization and referral

requirements for physicians, hospitals, and other medical services

providers, including emergency room visits and inpatient admissions;

(d) the creation of mechanisms to ensure the participation of HIV

centers of excellence and community-based HIV care providers;

(e) implementation of procedures for managing the care of all

participants, including the use of facility and community-based case

managers with expertise in the care needs of persons with HIV infection,

and the designation of a specialist as a primary care practitioner;

(f) development of appropriate methods of managing the HIV care needs

of homeless, substance users and other vulnerable populations, who are

enrolled in the comprehensive HIV special needs plan, to assure that all

necessary services are made available in a timely manner, in accordance

with prevailing standards of professional medical practice, and that all

appropriate referrals and follow-up treatments are provided;

(g) provision of all early periodic screening, diagnosis and treatment

services, as well as periodic screening and referral, to each

participant under the age of twenty-one, at regular intervals and as

medically appropriate;

(h) direct provision of or arrangement for the provision of

comprehensive prenatal care services to all pregnant participants in

accordance with standards adopted by the department of health and with

statute and regulations governing HIV testing of pregnant women and

newborns;

(i) implementation of procedures for written agreements, which may

include contractual agreements, with community-based social service

providers to ensure access to the full continuum of services needed by

HIV infected persons; and

(j) permit the use of standing referrals to specialists and

subspecialists for participants who require the care of such

practitioners on a regular basis.

9. Notwithstanding any other provision of law, a comprehensive HIV

special needs plan certified pursuant to this section shall limit

enrollment to HIV positive persons, except for the following persons who

may be enrolled regardless of their HIV status:

(a) related children up to the age of twenty-one; and

(b) individuals who are homeless or who are members of other high need

populations which, in the discretion of the commissioner, would benefit

from receiving services through a plan certified pursuant to this

section; provided however, that rates paid to special needs plans for

such populations shall be comparable to rates paid for the same

populations in other managed care plans.

10. Enrollment and disenrollment. (a) Enrollment in a comprehensive

HIV special needs plan shall be voluntary and persons eligible for

enrollment in such plans shall be afforded the opportunity to choose

among such plans, to the extent available in the locality where the

person currently resides; provided however that enrollment may be

automatic after federal approval of a waiver or waivers or other federal

action required to institute automatic enrollment, pursuant to

applicable provisions of the federal social security act, and that

persons automatically enrolled in a comprehensive HIV special needs plan

shall have the opportunity to withdraw from such plan in accordance with

paragraph (g) of subdivision four, paragragh (b) of subdivision three

and subdivision twelve of section three hundred sixty-four-j of the

social services law. The department shall ensure to the maximum extent

practicable that individuals are provided with a choice of comprehensive

HIV special needs plans.

(b) The commissioner shall promulgate regulations establishing

criteria which relate to enrollment and disenrollment of enrollees in

comprehensive HIV special needs plans. Comprehensive HIV special needs

plans shall not request disenrollment of an enrollee based on any

diagnosis, condition, or perceived diagnosis or condition, or an

enrollee's efforts to exercise his or her rights under a grievance

process.

(c) Prior to enrollment in a comprehensive HIV special needs plan

individuals are to be provided with a full written explanation of all

fee-for-service and other options and given a reasonable opportunity to

choose between the comprehensive HIV special needs plan and the other

options. In addition, enrollees shall be provided notice of their right

to disenroll from the plan, except as otherwise provided in this

subdivision.

(d) If an enrollee requests to change a provider or disenroll from a

comprehensive HIV special needs plan pursuant to this subdivision, the

social services district and the plan shall implement such change in a

timely manner in accordance with standards established by the

commissioner. When an enrollee changes comprehensive HIV special needs

plan providers the plan must effectuate the timely transfer of all

necessary medical records.

(e) Plans shall ensure that any new enrollee whose health care

provider is not a member of the plan's provider network, who enrolls in

the plan, can continue with an ongoing course of treatment with the

enrollee's current health care provider during a transitional period of

up to sixty days from the effective date of enrollment. If an enrollee

elects to continue to receive care from such health care provider

pursuant to this paragraph, such care shall be authorized by the

comprehensive HIV special needs plan for the transitional period only if

the health care provider agrees: (1) to accept reimbursement from the

comprehensive HIV special needs plan at rates established by the plan as

payment in full, which rates shall be no more than the level of

reimbursement applicable to similar providers within the plan's network

for such services; (2) to adhere to the plan's quality assurance

requirements and agrees to provide to the plan any necessary medical

information related to such care; and (3) to otherwise adhere to the

plan's policies and procedures including, but not limited to procedures

regarding referrals and obtaining pre-authorization and a treatment plan

approved by the comprehensive HIV special needs plan. In no event shall

this paragraph be construed to require a comprehensive HIV special needs

plan to provide coverage for benefits not otherwise covered;

(f) Comprehensive HIV special needs plans shall ensure that for those

enrollees whose health care provider leaves the comprehensive HIV

special needs plan's network of providers, the enrollee shall be

permitted to continue an ongoing course of treatment with such current

health care provider during a transitional period of up to ninety days

from the date of notice to the enrollee of the provider's disaffiliation

from the plan's network. If an enrollee elects to continue to receive

care from such health care provider pursuant to this paragraph, such

care shall be authorized by the comprehensive HIV special needs plan for

the transitional period only if the health care provider agrees: (1) to

accept reimbursement from the comprehensive HIV special needs plan at

rates established by the plan as payment in full, which rates shall be

no more than the level of reimbursement applicable to similar providers

within the plan's network for such services; (2) to adhere to the

organization's quality assurance requirements and agrees to provide to

the plan any necessary medical information related to such care; and (3)

to otherwise adhere to the plan's policies and procedures including, but

not limited to procedures regarding referrals and obtaining

pre-authorization and a treatment plan approved by the comprehensive HIV

special needs plan. In no event shall this paragraph be construed to

require a comprehensive HIV special needs plan to provide coverage for

benefits not otherwise covered;

11. The commissioner shall develop and certify capitated payment rates

for comprehensive HIV special needs plans, subject to the approval of

the director of the division of the budget. In developing capitation

rates the commissioner shall be authorized to consider, at a minimum,

the age, eligibility category, historic cost and utilization of covered

enrollees and covered services, anticipated costs of emerging HIV

treatment modalities and the expected impact of delivering services in a

managed care environment.

12. Plans certified under this section must submit financial reports

in a manner and frequency established by the commissioner.

13. The department shall establish a stop-loss reinsurance program for

comprehensive HIV special needs plans. The stop-loss reinsurance program

shall be designed in a manner which promotes the development and ongoing

financial viability of the comprehensive HIV special needs plan by

providing reasonable protection for catastrophic cases and adverse

selection.

14. Quality assurance. (a) The department shall be responsible for

establishing a comprehensive quality assurance program for comprehensive

HIV special needs plans. This quality assurance program shall reflect

clinical standards of HIV care established and maintained by the AIDS

Institute in the department. The department shall monitor the

performance, quality and utilization of such plans on at least an annual

basis. Such plans must describe and document the existence of a formal,

organized quality assurance program with the capacity to identify,

address and follow-up on issues which concern the care and services

delivered to enrollees. Such reviews are to include, but not be limited

to, the following:

(1) compliance with performance and outcome-based quality standards

promulgated by the department;

(2) appropriateness, accessibility, timeliness, and quality of care

delivered by such providers;

(3) referrals, coordination, monitoring and follow-up with regard to

other medical service providers;

(4) methods of ensuring enrollees access to specialty services outside

the plan's network or panel when the plan does not have a provider with

the appropriate training and experience in the network or panel to meet

the particular HIV care needs of the participant;

(5) delivery of a comprehensive benefit package, including early and

periodic screening; adolescent health; diagnosis and treatment and

child/teen health screenings; referrals for necessary services, and

linkages to HIV counseling and testing; HIV prevention and education

activities;

(6) mechanisms for the provision of all information to enrollees in

clear and coherent terms that are commonly used in a culturally and

linguistically appropriate and understandable manner;

(7) existence of a management information system to support quality

assurance activities, which system shall provide for the collection and

utilization of data including but not limited to enrollment, complaints,

encounters and specific performance indicators; and

(b) the commissioner shall have access to patient specific medical

information and enrollee medical records, including encounter data,

maintained by a comprehensive HIV special needs plan for the purposes of

quality assurance and oversight.

(c) The department shall be responsible for establishing and

maintaining a uniform system of reports relating to the quality of care

and services furnished by comprehensive HIV special needs plans.

15. The commissioner may revoke, limit or annul a comprehensive HIV

special needs certificate of authority in accordance with the provisions

of section forty-four hundred four of this article.

16. Confidentiality. Except as provided in paragraph (c) of

subdivision fourteen of this section, any enrollee information

maintained by a comprehensive HIV special needs plan shall be kept

confidential in accordance with section forty-four hundred eight-a of

this article and where applicable section 33.13 of the mental hygiene

law and any other applicable state or federal law.

17. Utilization review. A comprehensive HIV special needs plan

authorized under this section is required to meet requirements set forth

in article forty-nine of this chapter.

18. Disclosure. Each enrollee and prospective enrollee prior to

enrollment in a comprehensive HIV special needs plan shall be provided

with written disclosure information related to enrollee benefits, rights

and obligations pursuant to section forty-four hundred eight of this

article.

19. Grievance procedure. Comprehensive HIV special needs plans

authorized under this section shall be required to meet grievance

procedures requirements pursuant to section forty-four hundred eight-a

of this article.

20. Prohibitions. A comprehensive HIV special needs plan authorized

under this section shall be required to meet the requirements set forth

in section forty-four hundred six-c of this article.

21. The commissioner is authorized, subject to the approval of the

director of the division of the budget, and within amounts appropriated,

to make grants to those entities seeking certification to operate a

comprehensive HIV special needs plan to aid in the development of the

systems, organizational structures and networks necessary to operate a

managed care program. The commissioner is authorized to develop criteria

for distribution of the grants. The grants may also be used to meet the

capitalization standards and the reserve and escrow deposit requirements

established for comprehensive HIV special needs plans.

22. Comprehensive HIV special needs plans shall function distinctly

from other comprehensive or non-comprehensive health plans operated by

the same organization, corporation, persons, county or municipality and

shall be clearly distinguished from any other functions through the

maintenance of separate records, reports and accounts for the

comprehensive HIV special needs plan function.

23. The commissioner shall establish reserve and escrow deposit

requirements for HIV special needs plans.

24. Nothing in this section shall be construed to require that a

health maintenance organization, certified pursuant to the provisions of

this article, apply for a comprehensive HIV special needs plan

certificate of authority pursuant to this section; provided, however,

that a health maintenance organization, certified pursuant to the

provisions of this article, which proposes to operate a comprehensive

HIV special needs plan shall be required to comply with all the

provisions of this section.

* NB Repealed March 31, 2030