N.Y. Public Health Law § 4403-f: Managed long term care plans

* § 4403-f. Managed long term care plans. 1. Definitions. As used in

this section:

(a) "Managed long term care plan" means an entity that has received a

certificate of authority pursuant to this section to provide, or arrange

for, health and long term care services, on a capitated basis in

accordance with this section, for a population, age eighteen and over,

which the plan is authorized to enroll.

(b) "Eligible applicant" means an entity controlled or wholly owned by

one or more of the following: a hospital as defined in subdivision one

of section twenty-eight hundred one of this chapter; a home care agency

licensed or certified pursuant to article thirty-six of this chapter; an

entity that has received a certificate of authority pursuant to sections

forty-four hundred three, forty-four hundred three-a or forty-four

hundred eight-a of this article (as added by chapter six hundred

thirty-nine of the laws of nineteen hundred ninety-six), or a health

maintenance organization authorized under article forty-three of the

insurance law; or a not-for-profit organization which has a history of

providing or coordinating health care services and long term care

services to the elderly and disabled.

(c) "Operating demonstration" means the following entities: the

chronic care management demonstration programs authorized by chapter

five hundred thirty of the laws of nineteen hundred eighty-eight,

chapter five hundred ninety-seven of the laws of nineteen hundred

ninety-four and chapter eighty-one of the laws of nineteen hundred

ninety-five as amended.

(d) "Health and long term care services" means services including, but

not limited to home and community-based and institution-based long term

care and ancillary services (that shall include medical supplies and

nutritional supplements) that are necessary to meet the needs of persons

whom the plan is authorized to enroll. The managed long term care plan

may also cover primary care, acute care and behavioral health services

if so authorized.

2. Certificate of authority; form. An eligible applicant shall submit

an application for a certificate of authority to operate a managed long

term care plan upon forms prescribed by the commissioner. Such eligible

applicant shall submit information and documentation to the commissioner

which shall include, but not be limited to:

(a) a description of the service area proposed to be served by the

plan with projections of enrollment that will result in a fiscally sound

plan;

(b) a description of the proposed target population and the marketing

plan;

(c) adequate documentation of the appropriate licenses, certifications

or approvals to provide care as planned, including contracts with such

providers as may be necessary to provide the full complement of services

required to be provided under this section.

3. Certificate of authority; approval. The commissioner shall not

approve an application for a certificate of authority unless the

applicant demonstrates to the commissioner's satisfaction:

(a) that it will have in place acceptable quality-assurance

mechanisms, grievance procedures, mechanisms to protect the rights of

enrollees and case management services to ensure continuity, quality,

appropriateness and coordination of care;

(b) that it will include an enrollment process which shall ensure that

enrollment in the plan is informed. The application shall describe the

disenrollment process, which shall provide that an otherwise eligible

enrollee shall not be involuntarily disenrolled on the basis of health

status;

(c) satisfactory evidence of the character and competence of the

proposed operators and reasonable assurance that the applicant will

provide high quality services to an enrolled population;

(d) sufficient management systems capacity to meet the requirements of

this section and the ability to efficiently process payment for covered

services;

(e) readiness and capability to maximize reimbursement of and

coordinate services reimbursed pursuant to title XVIII of the federal

social security act and all other applicable benefits, with such benefit

coordination including, but not limited to, measures to support sound

clinical decisions, reduce administrative complexity, coordinate access

to services, maximize benefits available pursuant to such title and

ensure that necessary care is provided;

(f) readiness and capability to arrange and manage covered services

and coordinate non-covered services which could include primary,

specialty, and acute care services reimbursed pursuant to title XIX of

the federal social security act;

(g) willingness and capability of taking, or cooperating in, all steps

necessary to secure and integrate any potential sources of funding for

services provided by the managed long term care plan, including, but not

limited to, funding available under titles XVI, XVIII, XIX and XX of the

federal social security act, the federal older Americans act of nineteen

hundred sixty-five, as amended, or any successor provisions subject to

approval of the director of the state office for aging, and through

financing options such as those authorized pursuant to section three

hundred sixty-seven-f of the social services law;

(h) that the contractual arrangements for providers of health and long

term care services in the benefit package are sufficient to ensure the

availability and accessibility of such services to the proposed enrolled

population consistent with guidelines established by the commissioner;

with respect to individuals in receipt of such services prior to

enrollment, such guidelines shall require the managed long term care

plan to contract with agencies currently providing such services, in

order to promote continuity of care. In addition, such guidelines shall

require managed long term care plans to offer and cover consumer

directed personal assistance services for eligible individuals who elect

such services pursuant to section three hundred sixty-five-f of the

social services law; and

(i) that the applicant is financially responsible and may be expected

to meet its obligations to its enrolled members.

4. Solvency. (a) The commissioner shall be responsible for evaluating,

approving and regulating all matters relating to fiscal solvency,

including reserves, surplus and provider contracts. The commissioner may

promulgate regulations to implement this section. The commissioner, in

the administration of this subdivision:

(i) shall be guided by the standards which govern the fiscal solvency

of a health maintenance organization, provided, however, that the

commissioner shall recognize the specific delivery components,

operational capacity and financial capability of the eligible applicant

for a certificate of authority;

(ii) shall not apply financial solvency standards that exceed those

required for a health maintenance organization; and

(iii) shall establish reasonable capitalization and contingent reserve

requirements.

(b) Standards established pursuant to this subdivision shall be

adequate to protect the interests of enrollees in managed long term care

plans. The commissioner shall be satisfied that the eligible applicant

is financially sound, and has made adequate provisions to pay for

services.

4-a. Role of the superintendent of financial services. (a) The

superintendent of financial services shall determine and approve

premiums in accordance with the insurance law whenever any population of

enrollees not eligible under title XIX of the federal social security

act is to be covered. The determination and approval of the

superintendent of financial services shall relate to premiums charged to

such enrollees not eligible under title XIX of the federal social

security act.

(b) The superintendent of financial services shall evaluate and

approve any enrollee contracts whenever such enrollee contracts are to

cover any population of enrollees not eligible under title XIX of the

federal social security act.

5. Applicability of other laws. A managed long term care plan shall be

subject to the provisions of the insurance law and regulations

applicable to health maintenance organizations, this article and

regulations promulgated pursuant thereto. To the extent that the

provisions of this section are inconsistent with the provisions of this

chapter or the provisions of the insurance law, the provisions of this

section shall prevail.

6. Approval authority. (a) An applicant shall be issued a certificate

of authority as a managed long term care plan upon a determination by

the commissioner that the applicant complies with the operating

requirements for a managed long term care plan under this section. The

commissioner shall issue no more than seventy-five certificates of

authority to managed long term care plans pursuant to this section.

(a-1) Nothing in this section shall be construed as requiring the

department to contract with or to contract for a particular line of

business with an entity certified under this section for the provision

of services available under title eleven of article five of the social

services law. A managed long term care plan that has been issued a

certificate of authority, or an applicant for a certificate of authority

as a managed long term care plan that has in any of the three calendar

years immediately preceding the application, met any of the following

criteria shall not be eligible for a contract for the provision of

services available under title eleven of article five of the social

services law: (i) classified as a poor performer, or substantially

similar terminology, by the centers for medicare and medicaid services;

or (ii) an excessive volume of penalties, statements of findings,

statements of deficiency, intermediate sanctions or enforcement actions,

regardless of whether the applicant has addressed such issues in a

timely manner.

(b) An operating demonstration shall be issued a certificate of

authority as a managed long term care plan upon a determination by the

commissioner that such demonstration complies with the operating

requirements for a managed long term care plan under this section.

Nothing in this section shall be construed to affect the continued legal

authority of an operating demonstration to operate its previously

approved program.

(c) For the period beginning April first, two thousand twelve and

ending March thirty-first, two thousand fifteen, the majority leader of

the senate and the speaker of the assembly may each recommend to the

commissioner, in writing, up to four eligible applicants to convert to

be approved managed long term care plans. An applicant shall only be

approved and issued a certificate of authority if the commissioner

determines that the applicant meets the requirements of subdivision

three of this section. The majority leader of the senate or the speaker

of the assembly may assign their authority to recommend one or more

applicants under this section to the commissioner.

(d) (i) Effective April first, two thousand twenty, and expiring March

thirty-first, two thousand twenty-seven, the commissioner shall place a

moratorium on the processing and approval of applications seeking a

certificate of authority as a managed long term care plan pursuant to

this section, including applications seeking authorization to expand an

existing managed long term care plan's approved service area or scope of

eligible enrollee populations. Such moratorium shall not apply to:

(A) applications submitted to the department prior to January first,

two thousand twenty;

(B) applications seeking approval to transfer ownership or control of

an existing managed long term care plan;

(C) applications demonstrating to the commissioner's satisfaction that

submission of the application for consideration would be appropriate to

address a serious concern with care delivery, such as a lack of adequate

access to managed long term care plans in a geographic area or a lack of

adequate and appropriate care, language and cultural competence, or

special needs services; and

(D) applications seeking to operate under the PACE (Program of

All-Inclusive Care for the Elderly) model as authorized by federal

public law 105-33, subtitle I of title IV of the Balanced Budget Act of

1997, or to serve individuals dually eligible for services and benefits

under titles XVIII and XIX of the federal social security act in

conjunction with an affiliated Medicare Dual Eligible Special Needs

Plan, based on the need for such plans and the experience of applicants

in serving dually eligible individuals as determined by the commissioner

in their discretion.

(ii) For the duration of the moratorium, the commissioner shall assess

the public need for managed long term care plans that are not integrated

with an affiliated Medicare plan, the ability of such plans to provide

high quality and cost effective care for their membership, and based on

such assessment develop a process and conduct an orderly wind-down and

elimination of such plans, which shall coincide with the expiration of

the moratorium unless the commissioner determines that a longer

wind-down period is needed.

(e) For the duration of the moratorium under paragraph (d) of this

subdivision, the commissioner shall establish, and enforce by means of a

premium withholding equal to three percent of the base rate, an annual

cap on total enrollment (enrollment cap) for each managed long term care

plan, subject to subparagraphs (ii) and (iii) of this paragraph, based

on a percentage of each plan's reported enrollment as of October first,

two thousand twenty.

(i) The specific percentage of each plan's enrollment cap shall be

established by the commissioner based on: (A) the ability of individuals

eligible for such plans to access health and long term care services,

(B) plan quality of care scores, (C) historical plan disenrollment, (D)

the projected growth of individuals eligible for such plans in different

regions of the state, (E) historical plan enrollment of patients with

varying levels of need and acuity, and (F) other factors in the

commissioner's discretion to ensure compliance with federal

requirements, appropriate access to plan services, and choice by

eligible individuals.

(ii) In the event that a plan exceeds its annual enrollment cap, the

commissioner is authorized under this paragraph to retain all or a

portion of the premium withheld based on the amount over which a plan

exceeds its enrollment cap. Penalties assessed pursuant to this

subdivision shall be determined by regulation.

(iii) The commissioner may not establish an annual cap on total

enrollment under this paragraph for plans' lines of business operating

under the PACE (Program of All-Inclusive Care for the Elderly) model as

authorized by federal public law 105-33, subtitle I of title IV of the

Balanced Budget Act of 1997, or that serve individuals dually eligible

for services and benefits under titles XVIII and XIX of the federal

social security act in conjunction with an affiliated Medicare Dual

Eligible Special Needs Plan.

(f) In implementing the provisions of paragraphs (d) and (e) of this

subdivision, the commissioner shall, to the extent practicable, consider

and select methodologies that seek to maximize continuity of care and

minimize disruption to the provider labor workforce, and shall, to the

extent practicable and consistent with the ratios set forth herein,

continue to support contracts between managed long term care plans and

licensed home care services agencies that are based on a commitment to

quality and value.

6-a. Performance standards. (a) On or before January first, two

thousand twenty-four, each managed long term care plan that has been

issued a certificate of authority pursuant to this section shall have an

active Medicare Dual Eligible Special Needs Plan in operation whose

H-contract either has a current quality star rating from the Centers for

Medicare and Medicaid Services of three stars or higher, or has not been

issued a quality star rating from the Centers for Medicare and Medicaid

Services. In addition, the managed long term care plan shall

sufficiently demonstrate success in the following performance

categories:

(i) in addition to meeting the requirements of paragraph (j) of

subdivision seven of this section, in order to ensure network adequacy a

commitment to contracting with an adequate number of licensed home care

service agencies needed to provide necessary personal care services to

the greatest practicable number of enrollees, and with an adequate

number of fiscal intermediaries needed to provide necessary consumer

directed personal assistance services to the greatest practicable number

of enrollees in accordance with section three hundred sixty-five-f of

the social services law;

(ii) readiness to timely implement and adhere to maximum wait time

criteria for key categories of service in accordance with laws, rules

and regulations of the department or the Centers for Medicare and

Medicaid Services;

(iii) commitment to quality improvement;

(iv) accessibility and geographic distribution of network providers,

taking into account the needs of persons with disabilities and the

differences between rural, suburban, and urban settings;

(v) demonstrated cultural and language competencies specific to the

population of participants;

(vi) ability to serve enrollees across the continuum of care, as

demonstrated by the type and number of products the managed long term

care operates or has applied to operate, including integrated care for

participants who are dually eligible for Medicaid and Medicare, and

those operated under title one-A of article twenty-five of this chapter

and section three hundred sixty-nine-gg of the social services law; and

(vii) value based care readiness and experience.

(b) The commissioner shall require any managed long term care plan

with a Medicare Dual Eligible Special Needs Plan in operation that at

any time has a current quality star rating from the Centers for Medicare

and Medicaid Services of less than three stars to establish and

implement a performance improvement plan acceptable to the commissioner,

and which shall be consistent with the standards of the Medicare

Advantage Quality Rating System.

(c) The commissioner shall have the authority to promulgate

regulations to effectuate the provisions of this subdivision.

(d) The provisions of this subdivision shall not apply for managed

long term care plans operating under a certificate of authority pursuant

to subdivision twelve, as added by section seventy-six of part A of

chapter fifty-six of the laws of two thousand thirteen, or subdivision

thirteen of this section, or to the program of all-inclusive care for

the elderly under article twenty-nine-EE of this chapter.

7. Program oversight and administration. (a)(i) The commissioner shall

promulgate regulations to implement this section and to ensure the

quality, appropriateness and cost-effectiveness of the services provided

by managed long term care plans. The commissioner may waive rules and

regulations of the department, including but not limited to, those

pertaining to duplicative requirements concerning record keeping, boards

of directors, staffing and reporting, when such waiver will promote the

efficient delivery of appropriate, quality, cost-effective services and

when the health, safety and general welfare of enrollees will not be

impaired as a result of such waiver. In order to achieve managed long

term care plan system efficiencies and coordination and to promote the

objectives of high quality, integrated and cost effective care, the

commissioner may establish a single coordinated surveillance process,

allow for a comprehensive quality improvement and review process to meet

component quality requirements, and require a uniform cost report. The

commissioner shall require managed long term care plans to utilize

quality improvement measures, based on health outcomes data, for

internal quality assessment processes and may utilize such measures as

part of the single coordinated surveillance process.

(ii) Notwithstanding any inconsistent provision of the social services

law to the contrary, the commissioner shall, pursuant to regulation,

determine whether and the extent to which the applicable provisions of

the social services law or regulations relating to approvals and

authorizations of, and utilization limitations on, health and long term

care services reimbursed pursuant to title XIX of the federal social

security act, including, but not limited to, fiscal assessment

requirements, are inconsistent with the flexibility necessary for the

efficient administration of managed long term care plans and such

regulations shall provide that such provisions shall not be applicable

to enrollees or managed long term care plans, provided that such

determinations are consistent with applicable federal law and

regulation, and subject to the provisions of subdivision eight of

section three hundred sixty-five-a of the social services law.

* (b) (i) The commissioner shall, to the extent necessary, submit the

appropriate waivers, including, but not limited to, those authorized

pursuant to sections eleven hundred fifteen and nineteen hundred fifteen

of the federal social security act, or successor provisions, and any

other waivers necessary to achieve the purposes of high quality,

integrated, and cost effective care and integrated financial eligibility

policies under the medical assistance program or pursuant to title XVIII

of the federal social security act. In addition, the commissioner is

authorized to submit the appropriate waivers, including but not limited

to those authorized pursuant to sections eleven hundred fifteen and

nineteen hundred fifteen of the federal social security act or successor

provisions, and any other waivers necessary to require on or after April

first, two thousand twelve, medical assistance recipients who are

twenty-one years of age or older and who require community-based long

term care services, as specified by the commissioner, for a continuous

period of more than one hundred and twenty days, to receive such

services through an available plan certified pursuant to this section or

other program model that meets guidelines specified by the commissioner

that support coordination and integration of services. Such guidelines

shall address the requirements of paragraphs (a), (b), (c), (d), (e),

(f), (g), (h), and (i) of subdivision three of this section as well as

payment methods that ensure provider accountability for cost effective

quality outcomes. Such other program models may include long term home

health care programs that comply with such guidelines. Copies of such

original waiver applications and amendments thereto shall be provided to

the chairs of the senate finance committee, the assembly ways and means

committee and the senate and assembly health committees simultaneously

with their submission to the federal government.

(ii) The commissioner, shall seek input from representatives of home

and community-based long term care services providers, recipients, and

the Medicaid managed care advisory review panel, among others, to

further evaluate and promote the transition of persons in receipt of

home and community-based long term care services into managed long term

care plans and other care coordination models and to develop guidelines

for such care coordination models. The guidelines shall be finalized and

posted on the department's website no later than November fifteen, two

thousand eleven.

(iii) Notwithstanding and in addition to any provision of subparagraph

(i) of this paragraph and subject to any federal requirements, persons

dually eligible for medical assistance and benefits under the federal

Medicare program who are enrolled in a Medicare Dual Eligible Special

Needs Plan and who do not require community-based long term care

services, as specified by the commissioner, for a continuous period of

more than one hundred and twenty days shall be required to enroll with

an available affiliated plan certified pursuant to this section when

program features and reimbursement rates are approved by the

commissioner.

(v) The following medical assistance recipients shall not be eligible

to participate in a managed long term care program or other care

coordination model established pursuant to this paragraph until program

features and reimbursement rates are approved by the commissioner and,

as applicable, the commissioner of developmental disabilities:

(1) a person enrolled in a managed care plan pursuant to section three

hundred sixty-four-j of the social services law;

(2) a participant in the traumatic brain injury waiver program or a

person whose circumstances would qualify him or her for the program as

it existed on January first, two thousand fifteen;

(3) a participant in the nursing home transition and diversion waiver

program or a person whose circumstances would qualify him or her for the

program as it existed on January first, two thousand fifteen;

(4) a person enrolled in the assisted living program;

(5) a person enrolled in home and community based waiver programs

administered by the office for people with developmental disabilities;

(6) a person who is expected to be eligible for medical assistance for

less than six months, for a reason other than that the person is

eligible for medical assistance only through the application of excess

income toward the cost of medical care and services;

(7) a person who is eligible for medical assistance benefits only with

respect to tuberculosis-related services;

(8) a person receiving hospice services at time of enrollment;

provided, however, that this clause shall not be construed to require an

individual enrolled in a managed long term care plan or another care

coordination model, who subsequently elects hospice, to disenroll from

such program;

(9) a person who has primary medical or health care coverage available

from or under a third-party payor which may be maintained by payment, or

part payment, of the premium or cost sharing amounts, when payment of

such premium or cost sharing amounts would be cost-effective, as

determined by the social services district;

(10) a person receiving family planning services pursuant to

subparagraph six of paragraph (b) of subdivision one of section three

hundred sixty-six of the social services law;

(11) a person who is eligible for medical assistance pursuant to

paragraph (b) of subdivision four of section three hundred sixty-six of

the social services law;

(12) Native Americans;

(13) a person who is permanently placed in a nursing home for a

consecutive period of three months or more. In implementing this

provision, the department shall continue to support service delivery and

outcomes that result in community living for enrollees; and

(14) a person who has not been assessed as needing at least limited

assistance with physical maneuvering with more than two activities of

daily living, or for individuals with a dementia or Alzheimer's

diagnosis, assessed as needing at least supervision with more than one

activity of daily living, as defined and determined using an evidenced

based validated assessment instrument approved by the commissioner and

in accordance with applicable state and federal law and regulations of

the department, provided that the provisions of this clause shall not

apply to a person who has been continuously enrolled in a managed long

term care program beginning prior to October first, two thousand twenty.

(v-a) For purposes of clause two of subparagraph (v) of this

paragraph, program features shall be substantially comparable to those

services available to traumatic brain injury waiver participants as of

January first, two thousand fifteen, subject to federal financial

participation.

(v-b) For purposes of clause three of subparagraph (v) of this

paragraph, program features shall be substantially comparable to those

services offered to nursing home transition and diversion waiver

participants as of January first, two thousand fifteen, subject to

federal financial participation.

(v-c) Any managed care program providing services under clause two or

three of subparagraph (v) of this paragraph shall have an adequate

network of trained providers to meet the needs of enrollees and provide

services under this subdivision.

(v-d) Any individual providing service coordination pursuant to

subparagraph (v-a) or (v-b) of this paragraph shall exercise his or her

professional duties in the interests of the patient. Nothing in this

subparagraph shall be construed as diminishing the authority and

obligations of a managed long term care plan under this article and

article forty-nine of this chapter.

(vi) persons required to enroll in the managed long term care program

or other care coordination model established pursuant to this paragraph

shall have no less than thirty days to select a managed long term care

provider, and shall be provided with information to make an informed

choice. Where a participant has not selected such a provider, the

commissioner shall assign such participant to a managed long term care

provider, taking into account consistency with any prior community-based

direct care workers having recently served the recipient, quality

performance criteria, capacity and geographic accessibility. During the

period prior to receiving services from a managed long term care

provider assigned under this subparagraph, the person may receive

services under fee for service Medicaid.

(vii) If another long term care plan certified under this section is

available, medical assistance recipients required to enroll in such

plans pursuant to this section, including recipients who have been

assigned to a provider by the commissioner, may change plans without

cause within ninety days of either notification of enrollment or the

effective date of enrollment into a plan, whichever is later, by

submitting a request to the entity designated by the department in a

format to be determined by the department. In accordance with federal

statutes and regulations, after such ninety-day period, the department

may prohibit a recipient from changing plans more frequently than once

every twelve months, except for good cause. Good cause may include poor

quality of care, lack of access to covered services, lack of access to

providers experienced in dealing with the enrollee's care needs, or as

otherwise determined by the commissioner.

(viii) Managed long term care provided and plans certified or other

care coordination model established pursuant to this paragraph shall

comply with the provisions of paragraphs (d), (i), (t), and (u) and

subparagraph (iii) of paragraph (a) and subparagraph (iv) of paragraph

(e) of subdivision four of section three hundred sixty-four-j of the

social services law.

(ix) (1) The commissioner shall report biannually on the

implementation of this subdivision. The reports shall include, but not

be limited to:

(A) satisfaction of enrollees with care coordination/case management;

timeliness of care;

(B) service utilization data including changes in the level, hours,

frequency, and types of services and providers;

(C) enrollment data, including auto-assignment rates by plan;

(D) quality data; and

(E) continuity of care for participants as they move to managed long

term care, with respect to community based and nursing home populations,

including pediatric nursing home populations, and medically fragile

children being served by home care agencies affiliated with pediatric

nursing homes and diagnostic and treatment centers primarily serving

medically fragile children.

(2) The commissioner shall publish the report on the department's

website and provide notice to the temporary president of the senate, the

speaker of the assembly, the chair of the senate standing committee on

health, the chair of the assembly health committee and the Medicaid

Managed Care Advisory Review Panel upon availability of the report. The

initial report shall be provided by September first, two thousand

twelve. The reports shall be made available by each February first, and

September first thereafter. Such reports shall be formatted to allow

comparisons between plans.

* NB Effective until April 1, 2027

* (b) The commissioner shall, to the extent necessary, submit the

appropriate waivers, including, but not limited to, those authorized

pursuant to sections eleven hundred fifteen and nineteen hundred fifteen

of the federal social security act, or successor provisions, and any

other waivers necessary to achieve the purposes of high quality,

integrated, and cost effective care and integrated financial eligibility

policies under the medical assistance program or pursuant to title XVIII

of the federal social security act. Copies of such original waiver

applications shall be provided to the chairman of the senate finance

committee and the chairman of the assembly ways and means committee

simultaneously with their submission to the federal government.

* NB Effective April 1, 2027

(c)(i) A managed long term care plan shall not use deceptive or

coercive marketing methods to encourage participants to enroll. A

managed long term care plan shall not distribute marketing materials to

potential enrollees before such materials have been approved by the

commissioner.

(ii) The commissioner shall ensure, through periodic reviews of

managed long term care plans, that enrollment was an informed choice;

such plan has only enrolled persons whom it is authorized to enroll, and

plan services are promptly available to enrollees when appropriate. Such

periodic reviews shall be made according to standards as determined by

the commissioner in regulations.

(d) Notwithstanding any provision of law, rule or regulation to the

contrary, the commissioner may issue a request for proposals to carry

out reviews of enrollment and assessment activities in managed long term

care plans and operating demonstrations with respect to enrollees

eligible to receive services under title XIX of the federal social

security act to determine if enrollment meets the requirements of

subparagraph (ii) of paragraph (c) of this subdivision; and that

assessments of such enrollees' health, functional and other status, for

the purpose of adjusting premiums, were accurate.

(e) The commissioner may, in his or her discretion for the purpose of

protection of enrollees, impose measures including, but not limited to,

bans on further enrollments and requirements for use of enrollment

brokers until any identified problems are resolved to the satisfaction

of the commissioner.

(f) Continuation of a certificate of authority issued under this

section shall be contingent upon satisfactory performance by the managed

long term care plan in the delivery, continuity, accessibility, cost

effectiveness and quality of the services to enrolled members;

compliance with applicable provisions of this section and rules and

regulations promulgated thereunder; the continuing fiscal solvency of

the organization; and, federal financial participation in payments on

behalf of enrollees who are eligible to receive services under title XIX

of the federal social security act.

(g) * (i) Managed long term care plans and demonstrations may enroll

eligible persons in the plan or demonstration upon the completion of a

comprehensive assessment that shall include, but not be limited to, an

evaluation of the medical, social, cognitive, and environmental needs of

each prospective enrollee in such program. This assessment shall also

serve as the basis for the development and provision of an appropriate

plan of care for the enrollee, including appropriate community-based

referrals. Upon approval of federal waivers pursuant to paragraph (b) of

this subdivision which require medical assistance recipients who require

community-based long term care services to enroll in a plan, and upon

approval of the commissioner, a plan may enroll an applicant who is

currently receiving home and community-based services and complete the

comprehensive assessment within thirty days of enrollment provided that

the plan continues to cover transitional care until such time as the

assessment is completed.

* NB Effective until April 1, 2027

* (i) Managed long term care plans and demonstrations may enroll

eligible persons in the plan or demonstration upon the completion of a

comprehensive assessment that shall include, but not be limited to, an

evaluation of the medical, social and environmental needs of each

prospective enrollee in such program. This assessment shall also serve

as the basis for the development and provision of an appropriate plan of

care for the prospective enrollee, including appropriate community-based

referrals.

* NB Effective April 1, 2027

(ii) The assessment shall be completed by a representative of the

managed long term care plan or demonstration, in consultation with the

prospective enrollee's health care practitioner as necessary. The

commissioner shall prescribe the forms on which the assessment shall be

made.

(iii) The enrollment application shall be submitted by the managed

long term care plan or demonstration to the entity designated by the

department prior to the commencement of services under the managed long

term care plan or demonstration. Enrollments conducted by a plan or

demonstration shall be subject to review and audit by the department or

a contractor selected pursuant to paragraph (d) of this subdivision.

(iv) Continued enrollment in a managed long term care plan or

demonstration paid for by government funds shall be based upon a

comprehensive assessment of the medical, social and environmental needs

of the recipient of the services. Such assessment shall be performed at

least annually by the managed long term care plan serving the enrollee.

The commissioner shall prescribe the forms on which the assessment will

be made.

(h) * The commissioner and, in the case of a plan arranging for or

providing services operated, certified, funded, authorized or approved

by the office for people with developmental disabilities, the

commissioner of the office for people with developmental disabilities,

shall, upon request by a managed long term care plan or operating

demonstration, and consistent with federal regulations promulgated

pursuant to the Health Insurance Portability and Accountability Act,

share with such plan or demonstration the following data if it is

available:

* NB Effective until December 31, 2027

* The commissioner shall, upon request by a managed long term care

plan or operating demonstration, and consistent with federal regulations

promulgated pursuant to the Health Insurance Portability and

Accountability Act, share with such plan or demonstration the following

data if it is available:

* NB Effective December 31, 2027

(i) information concerning utilization of services and providers by

each of its enrollees prior to and during enrollment, including but not

limited to utilization of emergency department services, prescription

drugs, and hospital and nursing facility admissions.

(ii) aggregate data concerning utilization and costs for enrollees and

for comparable cohorts served through the Medicaid fee-for-service

program.

(j) Limitations on licensed home care service agency contracts. (i)

The commissioner may establish methodologies to limit the number of

licensed home care services agencies licensed pursuant to article

thirty-six of the public health law with which managed long term care

plans may enter into contracts, provided that such limitations are

consistent with the specifications set forth in this paragraph.

(ii) Managed long term care plans operating in the city of New York

and/or the counties of Nassau, Suffolk, and Westchester may enter into

contracts with licensed home care services agencies in such region in a

maximum number calculated based upon the following methodology:

(A) As of October first, two thousand eighteen, one contract per

seventy-five members enrolled in the plan within such region; and

(B) As of October first, two thousand nineteen, one contract per one

hundred members enrolled in the plan within such region.

(iii) Managed long term care plans operating in counties other than

those in the city of New York and the counties of Nassau, Suffolk, and

Westchester may enter into contracts with licensed home care services

agencies in such region in a maximum number calculated based upon the

following methodology:

(A) As of October first, two thousand eighteen, one contract per

forty-five members enrolled in the plan within such region.

(B) As of October first, two thousand nineteen, one contract per sixty

members enrolled in the plan within such region.

(iv) Notwithstanding subparagraphs (ii) and (iii) of this paragraph, a

managed long term care plan shall not enter into less than the number of

contracts with licensed home care services agencies in each county in

which the plan operates as is necessary to remain consistent with

network adequacy standards, as determined by the department in

accordance with federal regulations.

(v) When calculating the number of additional contracts that a managed

long term care plan may enter using the methodologies established

pursuant to this paragraph, any fractional result shall be rounded down.

(vi) The commissioner may increase the number of licensed home care

services agencies with which a managed long term care plan may contract,

on a county by county basis, if the commissioner determines that such

increase is necessary to: ensure adequate access to services in the

geographic area including, but not limited to, special needs services

and services that are culturally and linguistically appropriate; or to

avoid disruption in services in the geographic area.

(vii) Any licensed home care services agency that ceases operation as

a result of this paragraph shall conform with all applicable

requirements, including but not limited to demonstrating to the

department's satisfaction continuity of care for individuals receiving

services from the agency.

(viii) The commissioner may require managed long term care plans to

provide evidence of compliance with this paragraph, on an annual basis.

(ix) In implementing the provisions of this paragraph, the

commissioner shall, to the extent practicable, consider and select

methodologies that seek to maximize continuity of care and minimize

disruption to the provider labor workforce, and shall, to the extent

practicable and consistent with the ratios set forth herein, continue to

support contracts between managed long term care plans and licensed home

care services agencies that are based on a commitment to quality and

value.

(x) This subparagraph applies where implementation of the limits on

contracts with licensed home care service agencies of this paragraph (i)

would otherwise require an enrollee's care to be transferred from the

enrollee's current licensed home care service agency to another licensed

care service agency, and (ii) the enrollee (or the enrollee's authorized

representative) wants the enrollee to continue to be cared for by one or

more employees of the current licensed home care service agency, and

that continuation would otherwise be provided. In such a case: the

enrollee's managed long term care plan may contract with the enrollee's

current licensed home care service agency for the purpose of continuing

the enrollee's care by such employee or employees, and the contract

shall not count towards the limits on contracts under this paragraph for

a period of three months.

(k) Increased rates, terms or scope of payment for behavioral health

services under this section, where payment is made by an entity under

this section, as a result of a rate, coverage or other change made

pursuant to a law, regulation, rule or official guidance, shall be

deemed in effect on the same date that such change would have taken

effect if payment were made other than by the entity. Where payment is

not made as of the effective date, the entity shall make retroactive

payments to the appropriate service providers.

8. Payment rates for managed long term care plan enrollees eligible

for medical assistance. The commissioner shall establish payment rates

for services provided to enrollees eligible under title XIX of the

federal social security act. Such payment rates shall be subject to

approval by the director of the division of the budget and shall reflect

savings to both state and local governments when compared to costs which

would be incurred by such program if enrollees were to receive

comparable health and long term care services on a fee-for-service basis

in the geographic region in which such services are proposed to be

provided. Payment rates shall be risk-adjusted to take into account the

characteristics of enrollees, or proposed enrollees, including, but not

limited to: frailty, disability level, health and functional status,

age, gender, the nature of services provided to such enrollees, and

other factors as determined by the commissioner. The risk adjusted

premiums may also be combined with disincentives or requirements

designed to mitigate any incentives to obtain higher payment categories.

In setting such payment rates, the commissioner shall consider costs

borne by the managed care program to ensure actuarially sound and

adequate rates of payment to ensure quality of care shall comply with

all applicable laws and regulations, state and federal, including

regulations as to actuarial soundness for medicaid managed care.

8-a. Rates for certain residential health care facilities.

Notwithstanding any other provision of law or regulation to the

contrary, any residential health care facility established pursuant to

article twenty-eight of this chapter located in a county with a

population of more than seventy-two thousand and less than seventy-five

thousand persons based on the two thousand ten federal census shall be

reimbursed by any managed long term care plan, approved pursuant to this

section and contracting with the department, at a rate of no less than

one hundred four percent of the average rate of reimbursement in

existence on March first, two thousand eighteen for such county.

9. Reports. The department shall provide an interim report to the

governor, temporary president of the senate and the speaker of the

assembly on or before April first, two thousand three and a final report

on or before April first, two thousand six on the results of the managed

long term care plans under this section. Such results shall be based on

data provided by the managed long term care plans and shall include but

not be limited to the quality, accessibility and appropriateness of

services; consumer satisfaction; the mean and distribution of impairment

measures of the enrollees by payor for each plan; the current method of

calculating premiums and the cost of comparable health and long term

care services provided on a fee-for-service basis for enrollees eligible

for services under title XIX of the federal social security act; and the

results of periodic reviews of enrollment levels and practices. Such

reports shall provide data on the demographic and clinical

characteristics of enrollees, voluntary and involuntary disenrollments

from plans, and utilization of services and shall examine the

feasibility of increasing the number of plans that may be approved. Data

collected pursuant to this section shall be available to the public in

an aggregated format to protect individual confidentiality, however

under no circumstance will data be released on items with cells with

smaller than statistically acceptable standards.

10. Notwithstanding any inconsistent provision to the contrary, the

enrollment and disenrollment process and services provided or arranged

by all operating demonstrations or any program that receives designation

as a Program of All-Inclusive Care for the Elderly (PACE) as authorized

by federal public law 105-33, subtitle I of title IV of the Balanced

Budget Act of 1997, must meet all applicable federal requirements.

Services may include, but need not be limited to, housing, inpatient and

outpatient hospital services, nursing home care, home health care, adult

day care, assisted living services provided in accordance with article

forty-six-B of this chapter, adult care facility services, enriched

housing program services, hospice care, respite care, personal care,

homemaker services, diagnostic laboratory services, therapeutic and

diagnostic radiologic services, emergency services, emergency alarm

systems, home delivered meals, physical adaptations to the client's

home, physician care (including consultant and referral services),

ancillary services, case management services, transportation, and

related medical services.

11. The department shall develop transition and continuity of care

policies for participants in home and community based long term care,

including the long term home health care program, as they move to

managed long term care plans addressing:

(a) a timetable and plan for implementation and transition by

participants, plans and providers;

(b) informative disclosure of participants' options as to impending

actions affecting or relating to the home care services they receive;

(c) reasonable opportunity for plans' and providers' good faith

pursuit of contracts, program changes or state approvals relevant to

plan implementation;

(d) notice that a participant with a previously established plan of

care provided by a certified home health agency or long term home health

care program, or provided pursuant to the personal care or consumer

directed personal assistance service programs, may elect to have such

care plan continued subject to the participant's next comprehensive

assessment; and

(e) delineation of responsibilities for service delivery and care

coordination, so as to avoid conflict, duplication and unnecessary

disruption of direct care staffing for the patient, and maintain

compliance with state and federal statute and regulation, including the

provisions of this section, article thirty-six of this chapter and

section three hundred sixty-five-f of the social services law.

In addition, the department shall provide technical assistance to long

term home health care providers with contracting options under this

section. The department shall work with affected stakeholders in the

development of these policies.

11-a. In transitioning individuals to managed long term care, the

department shall provide oversight of long term managed care by

ensuring:

(a) participants are appropriately notified of the upcoming changes to

their health care, and their rights and options;

(b) access to appropriate enrollment assistance, consumer assistance

and complaint mechanisms;

(c) access to quality care by requiring network transparency and

choice of long term care plans, allowing patients to choose the plan

that best fits their needs;

(d) transparency and accountability from providers, which shall

include a mechanism by which staff, participants and family members can

confidentially report concerns relating to quality to the plan and the

state;

(e) plans and providers are assessed periodically and data is

published regarding enrollment in integrated care designs, network

adequacy, new service designs, outcome measures, including the extent to

which care plans are continued or altered based upon new comprehensive

assessments, and the types and amounts of services health plans have

authorized;

(f) mechanisms are in place to state oversight of enrollment and

services to prevent waste and abuse in the managed long term care

system; and

(g) incentives are provided for a variety of indicators, including but

not limited to, smooth patient transitions, appropriate enrollment,

quality care, high staff retention and positive health care outcomes

achieved at a low cost.

11-b. In cases of a managed long term care plan merger, acquisition,

or other similar arrangement approved by the department, any receiving

plan that is a party to the arrangement shall submit a report to the

department within twelve months of the effective date of the

transaction. Such reports shall be in a form and format to be determined

by the department and shall include, but not be limited to, information

about the enrollees transferred and enrollee service authorization data

before and after transfer. The department shall make a summary of the

report available to the public.

** 12. The commissioner may make any necessary amendments to a

contract pursuant to this section with a managed long term care plan, as

defined in paragraph (a) of subdivision one of this section, to allow

such managed long term care plan to participate as a qualified health

plan in a state health benefit exchange established pursuant to the

federal Patient Protection and Affordable Care Act (P.L. 111-148), as

amended by the federal Health Care and Education Reconciliation Act of

2010 (P.L. 111-152).

** NB There are 2 sb 12's

** 12. Notwithstanding any provision to the contrary, a managed long

term care plan may expand the services it provides or arranges for to

include services operated, certified, funded, authorized or approved by

the office for people with developmental disabilities for a population

of persons with developmental disabilities, as such term is defined in

the mental hygiene law, including habiltiation services as defined in

paragraph (c) of subdivision one of section forty-four hundred three-g

of this article, subject to the following:

(a) Such plan must have the ability to provide or coordinate services

for persons with developmental disabilities as demonstrated by criteria

to be determined by the commissioner and the commissioner of the office

for people with developmental disabilities. Such criteria shall include,

but not be limited to, adequate experience providing or coordinating

services for persons with developmental disabilities;

(a-1) If the commissioner and the commissioner of the office for

people with developmental disabilities determine that such plan lacks

the experience required in paragraph (a) of this subdivision, the plan

shall have an affiliation arrangement with an entity or entities that

are non-profit organizations or organizations whose shareholders are

solely controlled by non-profit organizations with experience serving

persons with developmental disabilities, as demonstrated by criteria to

be determined by the commissioner and the commissioner of the office for

people with developmental disabilities, with such criteria including,

but not limited to, residential, day and employment services, such that

the affiliated entity will coordinate and plan services operated,

certified, funded, authorized or approved by the office for people with

developmental disabilities or will oversee and approve such coordination

and planning;

(a-2) Each enrollee shall receive services designed to achieve

person-centered outcomes, to enable that person to live in the most

integrated setting appropriate to that person's needs, and to enable

that person to interact with nondisabled persons to the fullest extent

possible in social, workplace and other community settings, provided

that all such services are consistent with such person's wishes to the

extent that such wishes are known. With respect to an individual

receiving non-residential services operated, certified, funded,

authorized or approved by the office for people with developmental

disabilities prior to enrollment in the plan, such guidelines shall

require the plan to contract with the current provider of such

non-residential services at the rates established by the office for

ninety days in order to ensure continuity of care. With respect to an

individual living in a residential facility operated or certified by the

office for people with developmental disabilities prior to enrollment in

the plan, the plan shall contract with the provider of residential

services for that residence at the rates established by the office for

people with developmental disabilities for so long as such individual

lives in that residence pursuant to an approved plan of care;

(b) The provision by such plan of services operated, certified,

funded, authorized or approved by the office for people with

developmental disabilities shall be subject the joint oversight and

review of both the department and the office for people with

developmental disabilities. The department and such office shall

require such organization to provide comprehensive care planning, assess

quality, meet quality assurance requirements and ensure the enrollee is

involved in care planning;

(c) Such plan shall not provide or arrange for services operated,

certified, funded, authorized or approved by the office for people with

developmental disabilities until the commissioner and the commissioner

of the office for people with developmental disabilities approve program

features and rates that include such services, and determine that such

organization meets the requirements of this subdivision and any other

requirements set forth by the commissioner of the office for people with

developmental disabilities;

(d) An otherwise eligible enrollee receiving services through the plan

that are operated, certified, funded, authorized or approved by the

office for people with developmental disabilities shall not be

involuntarily disenrolled from such plan without the prior approval of

the commissioner of the office for people with developmental

disabilities. Notice shall be provided to the enrollee and the enrollee

may request a fair hearing regarding such disenrollment;

(e) The office for people with developmental disabilities shall

determine the eligibility of individuals receiving services operated,

certified, funded, authorized or approved by such office to enroll in

such plan and shall enroll individuals it determines eligible in a plan

chosen by such individual, guardian or other legal representative;

(f) The office for people with developmental disabilities, or its

designee, shall complete a comprehensive assessment for enrollees who

receive services operated, certified, funded, authorized or approved by

such office. This assessment shall include, but not be limited to, an

evaluation of the medical, social, habilitative and environmental needs

of each prospective enrollee as such needs relate to each individual's

health, safety, living environment and wishes, to the extent that such

wishes are known. This assessment shall also serve as the basis for the

development and provision of an appropriate plan of care for the

enrollee. Such plan of care shall be focused on the achievement of

person-centered outcomes and shall be consistent with and help inform

any other person-centered plan required for the enrollee by the

commissioner of the office for people with developmental disabilities.

The initial assessment shall be completed by such office or a designee

other than the plan and shall be completed in consultation with the

prospective enrollee's health care practitioner as necessary.

Reassessments shall be completed by such office or its designee, which

may be the managed long term care plan in which the person is enrolled

or proposes to enroll. The commissioner of the office for people with

developmental disabilities shall prescribe the forms on which the

assessment shall be made.

(f-1) The plan shall provide the department and the office for people

with developmental disabilities with a description of the proposed

marketing plan and how marketing materials will be presented to persons

with developmental disabilities or their authorized decision makers for

the purposes of enabling them to make an informed choice.

(g) Plans providing services operated, certified, funded, authorized

or approved by the office for people with developmental disabilities

shall be subject to all requirements applicable to DISCOs operating

under section forty-four hundred three-g of this article with respect to

quality assurance, grievances and appeals, informed choice,

participation in development of plans of care and requirements with

respect to marketing, to the extent that such requirements are not

inconsistent with this section.

(h) No person with a developmental disability shall be required to

enroll in a managed long term care plan as a condition of receiving

medical assistance and services operated, certified, funded, authorized

or approved by the office for people with developmental disabilities

until program features and reimbursement rates are approved by the

commissioner and the commissioner of the office for people with

developmental disabilities and until such commissioners determine that

there are a sufficient number of plans authorized to coordinate care for

persons with developmental disabilities pursuant to this article

operating in the person's county of residence to meet the needs of

persons with developmental disabilities, and that such plans meet the

standards of this section.

** NB Repealed December 31, 2027

** NB There are 2 sb 12's

** 13. Notwithstanding any inconsistent provision to the contrary, the

commissioner may issue a certificate of authority to no more than three

eligible applicants who are eligible for Medicare and medical assistance

to operate managed long term care plans that are authorized to

exclusively enroll persons with developmental disabilities, as such term

is defined in section 1.03 of the mental hygiene law. The commissioner

may only issue certificates of authority pursuant to this subdivision

if, and to the extent that, the department has received federal approval

to operate a fully integrated duals advantage program for the

integration of services for persons enrolled in Medicare and medical

assistance. The commissioner may waive any of the department's

regulations as the commissioner, in consultation with the commissioner

of the office for people with developmental disabilities, deems

necessary to allow such managed long term care plans to provide or

arrange for services for persons with developmental disabilities that

are adequate and appropriate to meet the needs of such individuals and

that will ensure their health and safety.

** NB Repealed December 31, 2027

** 14. The provisions of subdivisions twelve and thirteen of this

section shall only be effective if, for so long as, and to the extent

that federal financial participation is available for the costs of

services provided thereunder to recipients of medical assistance

pursuant to title eleven of article five of the social services law. The

commissioner shall make any necessary amendments to the state plan for

medical assistance submitted pursuant to section three hundred

sixty-three-a of the social services law, and/or submit one or more

applications for waivers of the federal social security act, as may be

necessary to ensure such federal financial participation. To the extent

that the provisions of subdivision twelve and thirteen of this section

are inconsistent with other provisions of this article or with the

provisions of section three hundred sixty-four-j of the social services

law, the provisions of this subdivision shall prevail.

** NB Repealed December 31, 2027

* NB Repealed December 31, 2029