N.Y. Social Services Law § 364-j: Managed care programs

* § 364-j. Managed care programs. 1. Definitions. As used in this

section, unless the context clearly requires otherwise, the following

terms shall mean:

(a) "Participant". A medical assistance recipient who receives, is

required to receive or elects to receive his or her medical assistance

services from a managed care provider.

(b) "Managed care provider". An entity that provides or arranges for

the provision of medical assistance services and supplies to

participants directly or indirectly (including by referral), including

case management; and:

(i) is authorized to operate under article forty-four of the public

health law or article forty-three of the insurance law and provides or

arranges, directly or indirectly (including by referral) for covered

comprehensive health services on a full capitation basis, including a

special needs managed care plan or comprehensive HIV special needs plan;

or

** (ii) is authorized as a partially capitated program pursuant to

section three hundred sixty-four-f of this title or section forty-four

hundred three-e of the public health law or section 1915b of the social

security act; or

** NB Effective until December 31, 2027

** (ii) is authorized as a partially capitated program pursuant to

section three hundred sixty-four-f of this title or section forty-four

hundred three-e of the public health law or section 1915b of the social

security act.

** NB Effective December 31, 2027

** (iii) is authorized to operate under section forty-four hundred

three-g of the public health law.

** NB Repealed December 31, 2027

(c) "Managed care program". A statewide program in which medical

assistance recipients enroll on a voluntary or mandatory basis to

receive medical assistance services, including case management, directly

and indirectly (including by referral) from a managed care provider,

including as applicable, a special needs managed care plan or a

comprehensive HIV special needs plan, under this section.

(d) "Medical services provider". A physician, nurse, nurse

practitioner, physician assistant, licensed midwife, dentist,

optometrist or other licensed health care practitioner authorized to

provide medical assistance services.

(e) "Center of excellence." A health care facility certified to

operate under article twenty-eight of the public health law that offers

specialized treatment expertise in HIV care services as defined by the

commissioner of health.

(f) "Primary care practitioner". A physician or nurse practitioner

providing primary care to and management of the medical and health care

services of a participant served by a managed care provider.

(g) "AIDS". AIDS shall have the same meaning as in article

twenty-seven-f of the public health law.

(h) "HIV infection". HIV infection shall have the same meaning as in

article twenty-seven-f of the public health law.

(i) "HIV-related illness". HIV-related illness shall have the same

meaning as in article twenty-seven-f of the public health law.

(j) "Specialty care center". A "specialty care center" shall mean only

such centers as are accredited or designated by an agency of the state

or federal government or by a voluntary national health organization as

having special expertise in treating the disease or condition for which

it is accredited or designated.

(k) "Special care". Care, services and supplies relating to the

treatment of mental illness, developmental disabilities, alcoholism,

alcohol abuse or substance abuse, or HIV infection/AIDS.

(l) "Responsible special care agency". Whichever of the following

state agencies has responsibility for the special care in question: the

department of health, the office of mental health, the office for people

with developmental disabilities, or the office of alcoholism and

substance abuse services.

(m) "Special needs managed care plan" shall have the same meaning as

in section forty-four hundred one of the public health law.

(n) "Comprehensive HIV special needs plan" shall have the same meaning

as in section forty-four hundred three-c of the public health law.

(o) "Third-party payor". Any entity or program that is or may be

liable to pay the costs of health and medical care of a recipient of

medical assistance benefits, including insurers licensed pursuant to

article thirty-two or forty-three of the insurance law, or organizations

certified pursuant to article forty-four of the public health law.

(p) "Grievance". Any complaint presented by a participant or a

participant's representative for resolution through the grievance

process of a managed care provider.

(q) "Emergency medical condition". A medical or behavioral condition,

the onset of which is sudden, that manifests itself by symptoms of

sufficient severity, including severe pain, that a prudent layperson,

who possesses an average knowledge of medicine and health, could

reasonably expect the absence of immediate medical attention to result

in: (i) placing the health of the person afflicted with such condition

in serious jeopardy, or in the case of a behavioral condition placing

the health of the person or others in serious jeopardy; or (ii) serious

impairment to such person's bodily functions; or (iii) serious

dysfunction of any bodily organ or part of such person; or (iv) serious

disfigurement of such person.

(r) "Emergency care". Health care procedures, treatments or services,

including psychiatric stabilization and medical detoxification from

drugs or alcohol, that are provided for an emergency medical condition.

(s) "Existing rates". The rates paid pursuant to the most recent

executed contract between a local social services district or the state

and a managed care provider.

(t) "Managed care rating regions". The regions established by the

department of health for the purpose of setting regional premium rates

for managed care providers.

(u) "Premium group". The various demographic, gender and recipient

categories utilized for rate-setting purposes by the department of

health.

(v) "Upper payment limit". The maximum reimbursement that the

department of health may pay a managed care provider for providing or

arranging for medical services to participants in a managed care program

in accordance with the federal social security act and regulations

promulgated thereunder.

(x) "Persons with serious mental illness". Individuals who meet

criteria established by the commissioner of mental health, which shall

include persons who have a designated diagnosis of mental illness under

the most recent edition of the diagnostic and statistical manual of

mental disorders, and (i) whose severity and duration of mental illness

results in substantial functional disability or (ii) who require mental

health services on more than an incidental basis.

(y) "Children and adolescents with serious emotional disturbances".

Individuals under eighteen years of age who meet criteria established by

the commissioner of mental health, which shall include children and

adolescents who have a designated diagnosis of mental illness under the

most recent edition of the diagnostic and statistical manual of mental

disorders, and (i) whose severity and duration of mental illness results

in substantial functional disability or (ii) who require mental health

services on more than an incidental basis.

(z) "Credentialed alcoholism and substance abuse counselor (CASAC)".

An individual credentialed by the office of alcoholism and substance

abuse services in accordance with applicable regulations of the

commissioner of alcoholism and substance abuse services.

2. (a) The commissioner of health, in cooperation with the

commissioner and the commissioners of the responsible special care

agencies shall establish managed care programs, under the medical

assistance program, in accordance with applicable federal law and

regulations. The commissioner of health, in cooperation with the

commissioner, is authorized and directed, subject to the approval of the

director of the state division of the budget, to apply for federal

waivers when such action would be necessary to assist in promoting the

objectives of this section.

(b) The commissioner of health has authority to allow social services

districts to seek an exemption from this section for up to two years if

the social services district can demonstrate and the commissioner of

health and the commissioner of responsible special care agencies concurs

that the district has insufficient capacity to participate in the

program. An exemption under this paragraph may be renewed for additional

two year periods.

(c) The commissioner of health, jointly with the commissioner of

mental health and the commissioner of alcoholism and substance abuse

services shall be authorized to establish special needs managed care

plans, under the medical assistance program, in accordance with

applicable federal law and regulations. The commissioner of health, in

cooperation with such commissioners, is authorized, subject to the

approval of the director of the division of the budget, to apply for

federal waivers when such action would be necessary to assist in

promoting the objectives of this section. With regard to such special

needs managed care plans, in addition to the applicable requirements

established in this section, such commissioners shall jointly establish

standards and requirements to:

(i) ensure that any special needs managed care plan shall have an

adequate network of providers to meet the behavioral health and health

needs of enrollees, and shall review the adequacy prior to approval of

any special needs managed care plan, and upon contract renewal or

expansion. To the extent that the network has been determined to meet

standards set forth in subdivision five of section four thousand four

hundred three of the public health law, such network shall be deemed

adequate;

(ii) ensure that any special needs managed care plan shall make level

of care and coverage determinations utilizing evidence-based tools or

guidelines designed to address the behavioral health needs of enrollees;

(iii) ensure sufficient access to behavioral health and health

services for eligible enrollees by establishing and monitoring

penetration rates of special needs managed care plans; and

(iv) establish standards to encourage the use of services, products

and care recommended, ordered or prescribed by a provider to

sufficiently address the behavioral health and health services needs of

enrollees; and monitor the application of such standards to ensure that

they sufficiently address the behavioral health and health services

needs of enrollees.

(d) Whenever the commissioner of health makes changes to the terms,

conditions or time frames contained in the model contract that serves as

the basis for contracts with managed care providers in the managed care

program under this section, the changes shall be posted on the

department's website. The department shall post on its website any

changes required to be submitted to the centers for medicare and

medicaid services (CMS) for approval prior to submission of the changes.

A summary of any changes shall also be published in the state register.

A notification of any request for proposals issued by the department for

managed care providers to participate in the managed care program shall

also be published in the state register.

3. (a) Every person eligible for or receiving medical assistance under

this article, who resides in a social services district providing

medical assistance, which has implemented the state's managed care

program shall participate in the program authorized by this section.

Provided, however, that participation in a comprehensive HIV special

needs plan also shall be in accordance with article forty-four of the

public health law and participation in a special needs managed care plan

shall also be in accordance with article forty-four of the public health

law and article thirty-one of the mental hygiene law.

(d) Until such time as program features and reimbursement rates are

approved by the commissioner of health, in consultation with the

commissioners of the office of mental health, the office for people with

developmental disabilities, the office of children and family services,

and the office of alcoholism and substance abuse services, as

appropriate, the following services shall not be provided to medical

assistance recipients through managed care programs established pursuant

to this section, and shall continue to be provided outside of managed

care programs and in accordance with applicable reimbursement

methodologies; provided, however, that no medical assistance recipient

shall be required to obtain services that are certified, funded,

authorized or approved by the commissioner of the office for people with

developmental disabilities through a managed care program until the

program features approved by the commissioner of health, in consultation

with the commissioner of the office for people with developmental

disabilities, include features for habilitation services as defined in

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

the public health law:

(i) day treatment services provided to individuals with developmental

disabilities;

(ii) comprehensive medicaid case management services provided to

individuals with developmental disabilities;

(iii) services provided pursuant to article eighty-nine of the

education law;

(iv) mental health services provided by a certified voluntary

free-standing day treatment program where such services are provided in

conjunction with educational services authorized in an individualized

education program in accordance with regulations promulgated pursuant to

article eighty-nine of the education law;

(v) long term services as determined by the commissioner of the office

for people with developmental disabilities, provided to individuals with

developmental disabilities at facilities licensed pursuant to article

sixteen of the mental hygiene law or clinics serving individuals with

developmental disabilities at facilities licensed pursuant to article

twenty-eight of the public health law;

(vi) TB directly observed therapy;

(vii) AIDS adult day health care;

(viii) HIV COBRA case management; and

(ix) other services as determined by the commissioner of health.

(d-1) Services provided pursuant to title two-A of article twenty-five

of the public health law shall not be provided to medical assistance

recipients through managed care programs established pursuant to this

section, and shall continue to be provided outside of managed care

programs and in accordance with applicable reimbursement methodologies.

(d-2) Services provided pursuant to a waiver, granted pursuant to

subsection (c) of section 1915 of the federal social security act, to

persons suffering from traumatic brain injuries, shall not be provided

to medical assistance recipients through managed care programs

established pursuant to this section. Services provided pursuant to a

waiver, granted pursuant to subsection (c) of section 1915 of the

federal social security act, to persons qualifying for nursing home

diversion and transition services, shall not be provided to medical

assistance recipients through managed care programs until at least

January first, two thousand twenty-eight.

(d-3) Services provided in school-based health centers shall not be

provided to medical assistance recipients through managed care programs

established pursuant to this section.

(d-4) Notwithstanding paragraph (a) of this subdivision, the following

medical assistance recipients shall not be eligible to participate in

the managed care program authorized by this section or other care

coordination model established by article forty-four of the public

health law: any person who is permanently placed in a residential health

care facility for a consecutive period of three months or more. However,

nothing in this paragraph should be construed to apply to enrollees in

the Medicaid Advantage Plus Program, developed to enroll persons in

managed long-term care who are nursing home certifiable and who are

dually eligible pursuant to section forty-four hundred three-f of the

public health law. In implementing this provision, the department shall

continue to support service delivery and outcomes that result in

community living for enrollees.

(e) The following categories of individuals may be required to enroll

with a managed care program when program features and reimbursement

rates are approved by the commissioner of health and, as appropriate,

the commissioners of the office of mental health, the office for people

with developmental disabilities, the office of children and family

services, and the office of alcoholism and substance abuse services:

(i) an individual dually eligible for medical assistance and benefits

under the federal Medicare program; provided, however, nothing herein

shall: (a) require an individual enrolled in a managed long term care

plan, pursuant to section forty-four hundred three-f of the public

health law, to disenroll from such program; or (b) make enrollment in a

Medicare managed care plan a condition of the individual's participation

in the managed care program pursuant to this section, or affect the

individual's entitlement to payment of applicable Medicare managed care

or fee for service coinsurance and deductibles by the individual's

managed care provider.

(ii) an individual eligible for supplemental security income;

(iii) HIV positive individuals;

(iv) persons with serious mental illness and children and adolescents

with serious emotional disturbances, as defined in section forty-four

hundred one of the public health law;

(v) a person receiving services provided by a residential alcohol or

substance abuse program or facility for the developmentally disabled;

(vi) a person receiving services provided by an intermediate care

facility for the developmentally disabled or who has characteristics and

needs similar to such persons;

(vii) a person with a developmental or physical disability who

receives home and community-based services or care-at-home services

through a demonstration waiver under section eleven hundred fifteen of

the federal social security act, existing waivers under section nineteen

hundred fifteen (c) of the federal social security act, or who has

characteristics and needs similar to such persons;

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

subparagraph twelve or subparagraph thirteen of paragraph (a) of

subdivision one of section three hundred sixty-six of this title;

(ix) a person receiving services provided by a long term home health

care program, or a person receiving inpatient services in a

state-operated psychiatric facility or a residential treatment facility

for children and youth;

(x) certified blind or disabled children living or expected to be

living separate and apart from the parent for thirty days or more;

(xi) residents of nursing facilities;

(xii) a foster child in the placement of a voluntary agency or in the

direct care of the local social services district;

(xiii) a person or family that is homeless;

(xiv) individuals for whom a managed care provider is not

geographically accessible so as to reasonably provide services to the

person. A managed care provider is not geographically accessible if the

person cannot access the provider's services in a timely fashion due to

distance or travel time;

(xv) a person eligible for Medicare participating in a capitated

demonstration program for long term care;

(xvi) an infant living with an incarcerated mother in a state or local

correctional facility as defined in section two of the correction law;

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

for less than six months;

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

with respect to tuberculosis-related services;

(xix) individuals 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;

(xx) 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 local social services district;

(xxi) a person receiving family planning services pursuant to

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

hundred sixty-six of this title;

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

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

this title;

(xxiii) individuals with a chronic medical condition who are being

treated by a specialist physician that is not associated with a managed

care provider in the individual's social services district; and

(xxiv) Native Americans.

4. The managed care program shall provide participants access to

comprehensive and coordinated health care delivered in a cost effective

manner consistent with the following provisions:

(a) (i) a managed care provider shall arrange for access to and

enrollment of primary care practitioners and other medical services

providers. Each managed care provider shall possess the expertise and

sufficient resources to assure the delivery of quality medical care to

participants in an appropriate and timely manner and may include

physicians, nurse practitioners, county health departments, providers of

comprehensive health service plans licensed pursuant to article

forty-four of the public health law, and hospitals and diagnostic and

treatment centers licensed pursuant to article twenty-eight of the

public health law or otherwise authorized by law to offer comprehensive

health services or facilities licensed pursuant to articles sixteen,

thirty-one and thirty-two of the mental hygiene law.

(ii) provided, however, if a major public hospital, as defined in the

public health law, is designated by the commissioner of health as a

managed care provider in a social services district the commissioner of

health shall designate at least one other managed care provider which is

not a major public hospital or facility operated by a major public

hospital; and

(iii) under a managed care program, not all managed care providers

must be required to provide the same set of medical assistance services.

The managed care program shall establish procedures through which

participants will be assured access to all medical assistance services

to which they are otherwise entitled, other than through the managed

care provider, where:

(A) the service is not reasonably available directly or indirectly

from the managed care provider,

(B) it is necessary because of emergency or geographic unavailability,

or

(C) the services provided are family planning services; or

(D) the services are dental services and are provided by a diagnostic

and treatment center licensed under article twenty-eight of the public

health law which is affiliated with an academic dental center and which

has been granted an operating certificate pursuant to article

twenty-eight of the public health law to provide such dental services.

Any diagnostic and treatment center providing dental services pursuant

to this clause shall prior to June first of each year report to the

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

on the following: the total number of visits made by medical assistance

recipients during the immediately preceding calendar year; the number of

visits made by medical assistance recipients during the immediately

preceding calendar year by recipients who were enrolled in managed care

programs; the number of visits made by medical assistance recipients

during the immediately preceding calendar year by recipients who were

enrolled in managed care programs that provide dental benefits as a

covered service; and the number of visits made by the uninsured during

the immediately preceding calendar year; or

(E) the services are optometric services, as defined in article one

hundred forty-three of the education law, and are provided by a

diagnostic and treatment center licensed under article twenty-eight of

the public health law which is affiliated with the college of optometry

of the state university of New York and which has been granted an

operating certificate pursuant to article twenty-eight of the public

health law to provide such optometric services. Any diagnostic and

treatment center providing optometric services pursuant to this clause

shall prior to June first of each year report to the governor, temporary

president of the senate and speaker of the assembly on the following:

the total number of visits made by medical assistance recipients during

the immediately preceding calendar year; the number of visits made by

medical assistance recipients during the immediately preceding calendar

year by recipients who were enrolled in managed care programs; the

number of visits made by medical assistance recipients during the

immediately preceding calendar year by recipients who were enrolled in

managed care programs that provide optometric benefits as a covered

service; and the number of visits made by the uninsured during the

immediately preceding calendar year; or

(E-1) the services are vision care services rendered to a student at a

school based health center approved by the commissioner pursuant to this

clause. The commissioner may approve up to five pilot programs at school

based health centers in partnership with a charitable foundation that

agrees to provide free of charge eyeglass frames and lenses at the

centers pursuant to a memorandum of agreement approved by the

commissioner. The commissioner may approve the rate for such vision care

services at the rate for such services when provided by a federally

qualified health center or when provided by another entity licensed

pursuant to article twenty-eight of the public health law and eligible

for the ambulatory patient group rate approved for vision care services

by the commissioner; or

(F) other services as defined by the commissioner of health.

(b) Participants shall select a managed care provider from among those

designated under the managed care program, provided, however, a

participant shall be provided with a choice of no less than two managed

care providers. Notwithstanding the foregoing, a local social services

district designated a rural area as defined in 42 U.S.C. 1395ww may

limit a participant to one managed care provider, if the commissioner

and the local social services district find that only one managed care

provider is available. A managed care provider in a rural area shall

offer a participant a choice of at least three primary care

practitioners and permit the individual to obtain a service or seek a

provider outside of the managed care network where such service or

provider is not available from within the managed care provider network.

(c) Participants shall select a primary care practitioner from among

those designated by the managed care provider. In all districts,

participants shall be provided with a choice of no less than three

primary care practitioners. In the event that a participant does not

select a primary care practitioner, the participant's managed care

provider shall select a primary care practitioner for the participant,

taking into account geographic accessibility.

(d) For all other medical services, except as provided in paragraph

(c) of this subdivision, if a sufficient number of medical service

providers are available, a choice shall be offered.

(e) (i) In any social services district which has not implemented a

mandatory managed care program pursuant to this section, the

commissioner of health shall establish marketing and enrollment

guidelines, including but not limited to regulations governing

face-to-face marketing and enrollment encounters between managed care

providers and recipients of medical assistance and locations for such

encounters. Such regulations shall prohibit, at a minimum, telephone

cold-calling and door-to-door solicitation at the homes of medical

assistance recipients. The regulations shall also require the

commissioner of health to approve any local district marketing

guidelines. Managed care providers shall be permitted to assist

participants in completion of enrollment forms at approved health care

provider sites and other approved locations. In no case may an emergency

room be deemed an approved location. Upon enrollment, participants will

sign an attestation that: they have been informed that managed care is a

voluntary program; participants have a choice of managed care providers;

participants have a choice of primary care practitioners; and

participants must exclusively use their primary care practitioner and

plan providers except as otherwise provided in this section including

but not limited to the exceptions listed in subparagraph (iii) of

paragraph (a) of this subdivision. Managed care providers must submit

enrollment forms to the local department of social services. The local

department of social services will provide or arrange for an audit of

managed care provider enrollment forms; including telephone contacts to

determine if participants were provided with the information required by

this subparagraph. The commissioner of health may suspend or curtail

enrollment or impose sanctions for failure to appropriately notify

clients as required in this subparagraph.

(ii) In any social services district which has implemented a mandatory

managed care program pursuant to this section, the requirements of this

subparagraph shall apply to the extent consistent with federal law and

regulations. The department of health, may contract with one or more

independent organizations to provide enrollment counseling and

enrollment services, for participants required to enroll in managed care

programs, for each social services district requesting the services of

an enrollment broker. To select such organizations, the department of

health shall issue a request for proposals (RFP), shall evaluate

proposals submitted in response to such RFP and, pursuant to such RFP,

shall award a contract to one or more qualified and responsive

organizations. Such organizations shall not be owned, operated, or

controlled by any governmental agency, managed care provider, or medical

services provider.

(iii) Such independent organizations shall develop enrollment guides

for participants which shall be approved by the department of health

prior to distribution.

(iv) Local social services districts or enrollment organizations

through their enrollment counselors shall provide participants with the

opportunity for face to face counseling including individual counseling

upon request of the participant. Local social services districts or

enrollment organizations through their enrollment counselors shall also

provide participants with information in a culturally and linguistically

appropriate and understandable manner, in light of the participant's

needs, circumstances and language proficiency, sufficient to enable the

participant to make an informed selection of a managed care provider.

Such information shall include, but shall not be limited to: how to

access care within the program; a description of the medical assistance

services that can be obtained other than through a managed care

provider; the available managed care providers and the scope of services

covered by each; a listing of the medical services providers associated

with each managed care provider; the participants' rights within the

managed care program; and how to exercise such rights. Enrollment

counselors shall inquire into each participant's existing relationships

with medical services providers and explain whether and how such

relationships may be maintained within the managed care program. For

enrollments made during face to face counseling, if the participant has

a preference for particular medical services providers, enrollment

counselors shall verify with the medical services providers that such

medical services providers whom the participant prefers participate in

the managed care provider's network and are available to serve the

participant.

(v) Upon delivery of the pre-enrollment information, the local

district or the enrollment organization shall certify the participant's

receipt of such information. Upon verification that the participant has

received the pre-enrollment education information, a managed care

provider, a local district or the enrollment organization may enroll a

participant into a managed care provider. Managed care providers must

submit enrollment forms to the local department of social services. Upon

enrollment, participants will sign an attestation that they have been

informed that: participants have a choice of managed care providers;

participants have a choice of primary care practitioners; and, except as

otherwise provided in this section, including but not limited to the

exceptions listed in subparagraph (iii) of paragraph (a) of this

subdivision, participants must exclusively use their primary care

practitioners and plan providers. The commissioner of health may suspend

or curtail enrollment or impose sanctions for failure to appropriately

notify clients as required in this subparagraph.

(vi) Enrollment counselors or local social services districts shall

further inquire into each participant's health status in order to

identify physical or behavioral conditions that require immediate

attention or continuity of care, and provide to participants information

regarding health care options available to persons with HIV and other

illnesses or conditions under the managed care program. Any information

disclosed to counselors shall be kept confidential in accordance with

applicable provisions of the public health law, and as appropriate, the

mental hygiene law.

(vii) Any marketing materials developed by a managed care provider

shall be approved by the department of health or the local social

services district, and the commissioner of mental health and the

commissioner of alcoholism and substance abuse services, where

appropriate, within sixty days prior to distribution to recipients of

medical assistance. All marketing materials shall be reviewed within

sixty days of submission.

(viii) In any social services district which has implemented a

mandatory managed care program pursuant to this section, the

commissioner of health shall establish marketing and enrollment

guidelines, including but not limited to regulations governing

face-to-face marketing and enrollment encounters between managed care

providers and recipients of medical assistance and locations for such

encounters. Such regulations shall prohibit, at a minimum, telephone

cold-calling and door-to-door solicitation at the homes of medical

assistance recipients. The regulations shall also require the

commissioner of health to approve any local district marketing

guidelines.

(f) (i) Participants shall choose a managed care provider at the time

of application for medical assistance; if the participant does not

choose such a provider the commissioner shall assign such participant to

a managed care provider in accordance with subparagraphs (ii), (iii),

(iv) and (v) of this paragraph. Participants already in receipt of

medical assistance shall have no less than thirty days from the date

selected by the district to enroll in the managed care program to select

a managed care provider and shall be provided with information to make

an informed choice. Where a participant has not selected such a provider

the commissioner of health shall assign such participant to a managed

care provider which, if appropriate, may be a special needs managed care

plan, taking into account capacity and geographic accessibility. The

commissioner may after the period of time established in subparagraph

(ii) of this paragraph assign participants to a managed care provider

taking into account quality performance criteria and cost. Provided

however, cost criteria shall not be of greater value than quality

criteria in assigning participants.

(ii) The commissioner may assign participants pursuant to such

criteria on a weighted basis, provided however that for twelve months

following implementation of a mandatory program, pursuant to a federal

waiver, twenty-five percent of the participants that do not choose a

managed care provider shall be assigned to managed care providers that

satisfy the criteria set forth in subparagraph (i) of this paragraph,

and are controlled by, sponsored by, or otherwise affiliated through a

common governance or through a parent corporation with, one or more

private not-for-profit or public general hospitals or diagnostic and

treatment centers licensed pursuant to article twenty-eight of the

public health law.

(iii) For twelve months following the twelve months described in

subparagraph (ii) of this paragraph twenty-two and one-half percent of

the participants that do not choose a managed care provider shall be

assigned to managed care providers, that satisfy the criteria set forth

in subparagraph (i) of this paragraph and are controlled by, sponsored

by, or otherwise affiliated through a common governance or through a

parent corporation with, one or more private not-for-profit or public

general hospitals or diagnostic and treatment centers licensed pursuant

to article twenty-eight of the public health law.

(iv) For twelve months following the twelve months described in

subparagraph (iii) of this paragraph twenty percent of the participants

that do not choose a managed care provider shall be assigned equally

among each of the managed care providers, that satisfy the criteria set

forth in subparagraph (i) of this paragraph and are controlled by,

sponsored by, or otherwise affiliated through a common governance or

through a parent corporation with one or more private not-for-profit or

public general hospitals or diagnostic and treatment centers licensed

pursuant to article twenty-eight of the public health law.

(v) The commissioner shall assign all participants not otherwise

assigned to a managed care plan pursuant to subparagraphs (ii), (iii)

and (iv) of this paragraph equally among each of the managed care

providers that meet the criteria established in subparagraph (i) of this

paragraph; provided, however, that the commissioner shall assign

individuals meeting the criteria for enrollment in a special needs

managed care plan to such plan or plans where available.

(g) If another managed care provider is available, participants may

change such provider or plan without cause within thirty days of

notification of enrollment or the effective date of enrollment,

whichever is later with a managed care provider by making a request of

the local social services district except that such period shall be

forty-five days for participants who have been assigned to a provider by

the commissioner of health. However, after such thirty or forty-five day

period, whichever is applicable, a participant may be prohibited from

changing managed care providers more frequently than once every twelve

months, as permitted by federal law except for good cause as determined

by the commissioner of health through regulations.

(h) If another medical services provider is available, a participant

may change his or her provider of medical services (including primary

care practitioners) without cause within thirty days of the

participant's first appointment with a medical services provider by

making a request of the managed care provider. However, after that

thirty day period, no participant shall be permitted to change his or

her provider of medical services other than once every six months except

for good cause as determined by the commissioner through regulations.

(i) A managed care provider requesting a disenrollment shall not

disenroll a participant without the prior approval of the local social

services district in which the participant resides, provided that

disenrollment from a special needs managed care plan must comply with

the standards of the commissioner of health, the commissioner of

alcoholism and substance abuse services, and the commissioner of mental

health. A managed care provider shall not request disenrollment of a

participant based on any diagnosis, condition, or perceived diagnosis or

condition, or a participant's efforts to exercise his or her rights

under a grievance process, provided however, that a managed care

provider may, where medically appropriate, request permission to refer

participants to a managed care provider that is a special needs managed

care plan or a comprehensive HIV special needs plan after consulting

with such participant and upon obtaining his/her consent to such

referral, and provided further that a special needs managed care plan

may, where clinically appropriate, disenroll individuals who no longer

require the level of services provided by a special needs managed care

plan.

(j) A managed care provider shall be responsible for providing or

arranging for medical assistance services and assisting participants in

the prudent selection of such services, including but not limited to:

(1) management of the medical and health care needs of participants by

the participant's designated primary care practitioners or group of

primary care practitioners to assure that all services provided under

the managed care program and which are found to be necessary are made

available in a timely manner, in accordance with prevailing standards of

professional medical practice and conduct; and

(2) use of appropriate patient assessment criteria to ensure that all

participants are provided with appropriate services, including special

care;

(3) implementation of procedures, consistent with the requirements of

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

the public health law for managing the care of participants requiring

special care which may include the use of special case managers or the

designation of a specialist as a primary care practitioner by a

participant requiring special care on more than an incidental basis;

(4) implementation of procedures, consistent with the requirements of

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

the public health law to permit the use of standing referrals to

specialists and subspecialists for participants who require the care of

such practitioners on a regular basis; and

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

other medical services providers as appropriate for diagnosis and

treatment, or direct provision of some or all medical assistance

services.

(k) A managed care provider shall establish appropriate utilization

and referral requirements for physicians, hospitals, and other medical

services providers including emergency room visits and inpatient

admissions.

(l) A managed care provider shall be responsible for developing

appropriate methods of managing the health care and medical needs of

homeless and other vulnerable participants to assure that all necessary

services provided under the managed care program are made available and

that all appropriate referrals and follow-up treatment are provided, in

a timely manner, in accordance with prevailing standards of professional

medical practice and conduct.

(m) A managed care provider shall provide all early periodic screening

diagnosis and treatment services, as well as interperiodic screening and

referral, to each participant under the age of twenty-one, at regular

intervals, as medically appropriate.

(n) A managed care provider shall provide or arrange, directly or

indirectly (including by referral) for the provision of comprehensive

prenatal care services to all pregnant participants in accordance with

standards adopted by the department of health.

(o) A managed care provider shall provide or arrange, directly or

indirectly, (including by referral) for the full range of covered

services to all participants, notwithstanding that such participants may

be eligible to be enrolled in a comprehensive HIV special needs plan or

special needs managed care plan.

(p) A managed care provider shall implement procedures to communicate

appropriately with participants who have difficulty communicating in

English and to communicate appropriately with visually-impaired and

hearing-impaired participants.

(q) A managed care provider shall comply with applicable state and

federal law provisions prohibiting discrimination on the basis of

disability.

(r) A managed care provider shall provide services to participants

pursuant to an order of a court of competent jurisdiction, provided

however, that such services shall be within such provider's or plan's

benefit package and are reimbursable under title xix of the federal

social security act, provided that services for a substance use disorder

shall be provided by a program licensed, certified or otherwise

authorized by the office of alcoholism and substance abuse services.

(s) Managed care providers shall be provided with the date of

recertification for medical assistance of each of their enrolled

participants in conjunction with the monthly enrollment information

conveyed to managed care providers.

(t) Prospective enrollees shall be advised, in written materials

related to enrollment, to verify with the medical services providers

they prefer, or have an existing relationship with, that such medical

services providers participate in the selected managed care provider's

network and are available to serve the participant.

(u) A managed care provider that provides coverage for prescription

drugs shall permit each participant to fill any mail order covered

prescription, at his or her option, at any mail order pharmacy or

non-mail-order retail pharmacy in the managed care provider network. If

the managed care provider has designated one or more pharmacies for

filling prescriptions for a particular drug or drugs, then such

prescriptions may be filled, at the participant's option, at any other

pharmacy in the network, if the network pharmacy chosen by the

participant offers to accept a price that is comparable to that of the

pharmacy designated by the managed care provider. For the purposes of

this section, "mail order pharmacy" means a pharmacy whose primary

business is to receive prescriptions by mail, telefax or through

electronic submissions, and to dispense medication to patients through

the use of the United States mail or other common or contract carrier

services, and provides any consultation with patients electronically

rather than face to face. Every non-mail-order retail pharmacy in the

managed care provider's network with respect to any prescription drug

shall be deemed to be in the managed care provider's network for every

covered prescription drug.

(v) A managed care provider must allow enrollees to access chemical

dependence treatment services from facilities certified by the office of

alcoholism and substance abuse services, even if such services are

rendered by a practitioner who would not otherwise be separately

reimbursed, including but not limited to a credentialed alcoholism and

substance abuse counselor (CASAC).

** (w) A managed care provider shall provide or arrange, directly or

indirectly, including by referral, for access to and coverage of

services provided by any national cancer institute-designated cancer

center licensed by the department of health within the managed care

provider's service area that is willing to agree to provide

cancer-related inpatient, outpatient and medical services to

participants in all managed care providers offering coverage to medical

assistance recipients in such cancer center's service area under the

prevailing terms and conditions that the managed care provider requires

of other similar providers to be included in the managed care provider's

network, provided that such terms shall include reimbursement of such

center at no less than the fee-for-service medicaid payment rate and

methodology applicable to the center's inpatient and outpatient

services.

** NB There are 2 par (w)'s

** NB Repealed January 1, 2028

** (w)(i) The department of health or a managed care organization

contracted to provide services pursuant to this section shall establish

a program for synchronization of medications. Under the synchronization

program, a health care practitioner may prescribe a refill of one or

more of the patient's medications for a shorter period than would

ordinarily be provided, for the purpose of synchronizing refill dates of

one or more of the patient's medications subject to the synchronization,

when it is agreed among the recipient, the health care practitioner and

a pharmacist that synchronization of multiple prescriptions for the

treatment of a chronic illness is in the best interest of the patient

for the management or treatment of a chronic illness provided that the

following apply to such medications:

(A) are covered by Medicaid services or a managed care organization

contracted to provide services pursuant to this chapter;

(B) are used for treatment and management of a chronic illness that

are subject to refills;

(C) are not a schedule II controlled substance, nor a schedule III

controlled substance that contains hydrocodone or other opioid

medication as scheduled in section thirty-three hundred six of the

public health law, or a controlled substance under the federal

Controlled Substances Act;

(D) meet all prior authorization criteria specific to the medications

at the time of the synchronization request;

(E) are of a formulation that can be effectively and lawfully aligned

over required short fill periods to achieve synchronization; and

(F) do not have quantity limits or dose optimization criteria or state

or federal requirements that would be violated in fulfilling

synchronization.

(ii) The department of health or a managed care organization

contracted to provide services under this section shall not deny

coverage for the dispensing of a medication by a pharmacy for a partial

supply when it is for the purpose of synchronizing the patient's

medications. When applicable to permit synchronization, the department

of health or a managed care organization contracted to provide services

under this title shall allow a pharmacy to override any denial codes

indicating that a prescription is being refilled too soon for the

purposes of medication synchronization.

(iii) The dispensing fee paid to the pharmacy contracted to provide

services pursuant to this section for a partial supply associated with

medication synchronization shall be paid in accordance with the Medicaid

state plan as approved by the Centers for Medicare and Medicaid

Services.

(iv) The requirement of this paragraph applies only once for each

prescription drug subject to medication synchronization except when

either of the following occurs:

(A) the prescriber changes the dosage or frequency of administration

of the prescription drug subject to a medication synchronization; or

(B) the prescriber prescribes a different drug.

(v) Nothing in this paragraph shall be deemed to require health care

practitioners and pharmacists to synchronize the refilling of multiple

prescriptions for a covered individual.

(vi) The provisions of this paragraph are subject to compliance with

all applicable federal and state laws and regulations, including the

Centers for Medicare and Medicaid Services approved Medicaid state plan.

The commissioner shall apply for waivers and submit state Medicaid plan

amendments as are necessary to implement the program for synchronization

of medications.

** NB There are 2 par (w)'s

5. Managed care programs shall be conducted in accordance with the

requirements of this section and, to the extent practicable, encourage

the provision of comprehensive medical services, pursuant to this

article.

(a) The managed care program shall provide for the selection of

qualified managed care providers by the commissioner of health to

participate in the program, including comprehensive HIV special needs

plans and special needs managed care plans in accordance with the

provisions of section three hundred sixty-five-m of this title;

provided, however, that the commissioner of health may contract directly

with comprehensive HIV special needs plans consistent with standards set

forth in this section, and assure that such providers are accessible

taking into account the needs of persons with disabilities and the

differences between rural, suburban, and urban settings, and in

sufficient numbers to meet the health care needs of participants, and

shall consider the extent to which major public hospitals are included

within such providers' networks.

(b) A proposal submitted by a managed care provider to participate in

the managed care program shall:

(i) designate the geographic area to be served by the provider, and

estimate the number of eligible participants and actual participants in

such designated area;

(ii) include a network of health care providers in sufficient numbers

and geographically accessible to service program participants;

(iii) describe the procedures for marketing in the program location,

including the designation of other entities which may perform such

functions under contract with the organization;

(iv) describe the quality assurance, utilization review and case

management mechanisms to be implemented;

(v) demonstrate the applicant's ability to meet the data analysis and

reporting requirements of the program;

(vi) demonstrate financial feasibility of the program; and

(vii) include such other information as the commissioner of health may

deem appropriate.

(c) The commissioner of health shall make a determination whether to

approve, disapprove or recommend modification of the proposal.

(d) Notwithstanding any inconsistent provision of this title and

section one hundred sixty-three of the state finance law, the

commissioner of health may contract with managed care providers approved

under paragraph (b) of this subdivision, without a competitive bid or

request for proposal process, to provide coverage for participants

pursuant to this title.

(e) Notwithstanding any inconsistent provision of this title and

section one hundred forty-three of the economic development law, no

notice in the procurement opportunities newsletter shall be required for

contracts awarded by the commissioner of health, to qualified managed

care providers pursuant to this section.

(f) The care and services described in subdivision four of this

section will be furnished by a managed care provider pursuant to the

provisions of this section when such services are furnished in

accordance with an agreement with the department of health, and meet

applicable federal law and regulations.

(g) The commissioner of health may delegate some or all of the tasks

identified in this section to the local districts.

(h) Any delegation pursuant to paragraph (g) of this subdivision shall

be reflected in the contract between a managed care provider and the

commissioner of health.

6. A managed care provider shall not engage in the following

practices:

(a) use deceptive or coercive marketing methods to encourage

participants to enroll; or

(b) distribute marketing materials to recipients of medical

assistance, unless such materials are approved by the department of

health and, as appropriate, the office of mental health.

7. The department, the department of health or other agency of the

state as appropriate shall provide technical assistance at the request

of a social services district for the purpose of development and

implementation of managed care programs pursuant to this section. Such

assistance shall include but need not be limited to provision and

analysis of data, design of managed care programs and plans, innovative

payment mechanisms, and ongoing consultation. In addition, the

department and the department of health shall make available materials

to social services districts for purposes of educating persons eligible

to receive medical assistance on how their care will be provided through

managed care as required under paragraph (e) of subdivision five of this

section.

8. (a) The commissioner of health shall institute a comprehensive

quality assurance system for managed care providers that includes

performance and outcome-based quality standards for managed care.

(b) Every managed care provider shall implement internal quality

assurance systems adequate to identify, evaluate and remedy problems

relating to access, continuity and quality of care, utilization, and

cost of services, provided, however, that the commissioner shall waive

the implementation of internal quality assurance systems, where

appropriate, for managed care providers described in subparagraph (ii)

of paragraph (b) of subdivision one of this section. Such internal

quality assurance systems shall conform to the internal quality

assurance requirements imposed on health maintenance organizations

pursuant to the public health law and regulations and shall provide for:

(i) the designation of an organizational unit or units to perform

continuous monitoring of health care delivery;

(ii) the utilization of epidemiological data, chart reviews, patterns

of care, patient surveys, and spot checks;

(iii) reports to medical services providers assessing timeliness and

quality of care;

(iv) the identification, evaluation and remediation of problems

relating to access, continuity and quality of care; and

(v) a process for credentialing and recredentialing licensed

providers.

(c) The department of health, in consultation with the responsible

special care agencies, shall contract with one or more independent

quality assurance organizations to monitor and evaluate the quality of

care and services furnished by managed care providers. To select such

organization or organizations, the department of health shall issue

requests for proposals (RFP), shall evaluate proposals submitted in

response to such RFP, and pursuant to such RFP, shall award one or more

contracts to one or more qualified and responsive organizations. Such

quality assurance organizations shall evaluate and review the quality of

care delivered by each managed care provider, on at least an annual

basis. Such review and evaluation shall include compliance with the

performance and outcome-based quality standards promulgated by the

commissioner of health.

(d) Every managed care provider shall collect and submit to the

department of health, in a standardized format prescribed by the

department of health, patient specific medical information, including

encounter data, maintained by such provider for the purposes of quality

assurance and oversight. Any information or encounter data collected

pursuant to this paragraph, however, shall be kept confidential in

accordance with section forty-four hundred eight-a of the public health

law and section 33.13 of the mental hygiene law and any other applicable

state or federal law.

(e) Information collected and submitted to the department of health by

the independent quality assurance organization or managed care provider

pursuant to this subdivision shall be made available to the public,

subject to any other limitations of federal or state law regarding

disclosure thereof to third parties.

(f) Every managed care provider shall ensure that the provider

maintains a network of health care providers adequate to meet the

comprehensive health needs of its participants and to provide an

appropriate choice of providers sufficient to provide the services to

its participants by determining that:

(i) there are a sufficient number of geographically accessible

participating providers;

(ii) there are opportunities to select from at least three primary

care providers; and

(iii) there are sufficient providers in each area of specialty

practice to meet the needs of the enrolled population.

(g) The commissioner of health shall establish standards to ensure

that managed care providers have sufficient capacity to meet the needs

of their enrollees, which shall include patient to provider ratios,

travel and distance standards and appropriate waiting times for

appointments.

9. Managed care providers shall inform participants of such provider's

grievance procedure and utilization review procedures under section

forty-four hundred eight-a and article forty-nine of the public health

law. A managed care provider or local social services district, as

appropriate, shall provide notice to participants of their respective

rights to a fair hearing and aid continuing in accordance with

applicable state and federal law. Managed care providers shall provide

notice of the name, address, phone number and website of the department

of health designated independent consumer assistance program and the

independent substance use disorder and mental health ombudsman

established by section 33.27 of the mental hygiene law within notices of

adverse grievances and appeals determinations.

10. The commissioner of health shall be authorized to establish

requirements regarding provision and reimbursement of emergency care.

10-a. For managed care providers with negotiated rates of payment for

inpatient hospital services under contracts in effect on April first,

two thousand eight, that have a payment rate methodology for such

inpatient hospital services that utilizes rates calculated by the

department of health pursuant to paragraph (a) or (a-2) of subdivision

one of section twenty-eight hundred seven-c for patients under the

medical assistance program, such rate shall not include adjustments

pursuant to subdivision thirty-three of section twenty-eight hundred

seven-c of the public health law for contract periods prior to January

first, two thousand ten.

12. The commissioner, by regulation, shall provide that a participant

may withdraw from participation in a managed care program upon a showing

of good cause.

13. (a) Notwithstanding any inconsistent provisions of this section,

participation in a managed care program will not diminish a recipient's

medical assistance eligibility or the scope of available medical

services to which he or she is entitled. Once a program is implemented

by or in the district in accordance with this section, medical

assistance for persons who require such assistance, who are eligible for

or in receipt of such assistance in the district and who are covered by

the program shall be limited to payment of the cost of care, services

and supplies covered by the managed care program, only when furnished,

prescribed, ordered or approved by a managed care provider, mental

health special needs plan or comprehensive HIV special needs plan and

otherwise under the program, together with the costs of medically

necessary medical and remedial care, services or supplies which are not

available to participants under the program, but which would otherwise

be available to such persons under this title and the regulations of the

department provided, however, that the program may contain provision for

payment to be made for non-emergent care furnished in hospital emergency

rooms consistent with subdivision ten of this section.

(b) Notwithstanding any inconsistent provision of law, payment for

claims for services as specified in paragraph (a) of this subdivision

furnished to eligible persons under this title, who are enrolled in a

managed care program pursuant to this section and section three hundred

sixty-four-f of this title or other comprehensive health services plans,

shall not be made when such services are the contractual responsibility

of a managed care provider but are provided by another medical services

provider contrary to the managed care plan.

14. The commissioner of health is authorized and directed, subject to

the approval of the director of the division of budget, to make grants

to social services districts to aid in the planning and development of

managed care programs. The total amount expended pursuant to this

section shall not exceed the amount appropriated for such purposes in

any fiscal year.

15. The managed medical care demonstration program advisory council is

abolished.

16. Any waiver application to the federal department of health and

human services pursuant to this article and any amendments to such

application shall be a public document.

17. (a) The provisions of this section regarding participation of

persons receiving family assistance and supplemental security income in

managed care programs shall be effective if, and as long as, federal

financial participation is available for expenditures for services

provided pursuant to this section.

(b) The provisions of this section regarding the furnishing of health

and behavioral health services through a special needs managed care plan

shall be effective if, and as long as, federal financial participation

is available for expenditures for services provided by such plans

pursuant to this section.

18. (a) The department of health may, where not inconsistent with the

rate setting authority of other state agencies and subject to approval

of the director of the division of the budget, develop reimbursement

methodologies and fee schedules for determining the amount of payment to

be made to managed care providers under the managed care program. Such

reimbursement methodologies and fee schedules may include provisions for

payment of managed care fees and capitation arrangements.

(b) The department of health in consultation with organizations

representing managed care providers shall select an independent actuary

to review any such reimbursement rates. Such independent actuary shall

review and make recommendations concerning appropriate actuarial

assumptions relevant to the establishment of rates including but not

limited to the adequacy of the rates in relation to the population to be

served adjusted for case mix, the scope of services the plans must

provide, the utilization of services and the network of providers

necessary to meet state standards. The independent actuary shall issue a

report no later than December thirty-first, nineteen hundred

ninety-eight and annually thereafter. Such report shall be provided to

the governor, the temporary president and the minority leader of the

senate and the speaker and the minority leader of the assembly. The

department of health shall assess managed care providers under the

managed care program on a per enrollee basis to cover the cost of such

report.

* (c) In setting such reimbursement methodologies, the department

shall consider costs borne by the managed care program to ensure

actuarially sound and adequate rates of payment to ensure quality of

care.

* NB There are 2 par (c)'s

* (c) The department of health shall require the independent actuary

selected pursuant to paragraph (b) of this subdivision to provide a

complete actuarial memorandum, along with all actuarial assumptions made

and all other data, materials and methodologies used in the development

of rates, to managed care providers thirty days prior to submission of

such rates to the centers for medicare and medicaid services for

approval. Managed care providers may request additional review of the

actuarial soundness of the rate setting process and/or methodology.

* NB There are 2 par (c)'s

(d) The department of health shall annually provide to the temporary

president of the senate and the speaker of the assembly the annual

Medicaid managed care operating reports submitted to the department from

managed care plans that contract with the state to manage services

provided under the Medicaid program.

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

services under this title, where payment is made by a managed care

provider 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 managed care

provider. Where payment is not made as of the effective date, the

managed care provider shall make retroactive payments to the appropriate

service providers.

19. (a) The commissioner of health, in consultation with the

commissioner, shall promulgate such regulations as are necessary to

implement the provisions of this section provided, however, that the

provisions of this subdivision shall not limit specific actions taken by

the department of health or the department in order to ensure federal

financial participation.

20. Upon a determination that a participant appears to be suitable for

admission to a comprehensive HIV special needs plan or a special needs

managed care plan, a managed care provider shall inform the participant

of the availability of such plans, where available and appropriate.

21. (a) An amount equal to seven million dollars together with any

matching federal and local government funds shall be made available for

rate adjustments for managed care providers whose rates were set under

the competitive bidding process. Such adjustment shall be made in

accordance with this paragraph.

(i) Such amount shall be allocated by the department of health among

the managed care rating regions based on each region's percentage of

statewide Medicaid managed care enrollment as of January first, nineteen

hundred ninety-seven excluding from such calculation enrollment in local

social services districts that did not participate in the competitive

bidding process.

(ii) From among the funds allocated in a managed care rating region,

the department of health shall adjust the existing rates paid to managed

care providers for each premium group for the period from January first,

nineteen hundred ninety-seven through March thirty-first, nineteen

hundred ninety-eight in a manner that raises the rates of all managed

care providers in the region to the highest uniform percentage of the

upper payment limit possible based on the funds available; provided,

however, that no managed care provider's rate for any premium group

shall be reduced as a result of such adjustment. For the purpose of

calculating appropriate rate increases under this subparagraph, the

department of health shall assume that, for the entire period between

January first, nineteen hundred ninety-seven and March thirty-first,

nineteen hundred ninety-eight, enrollment in each premium group shall be

equal to enrollment in the premium group as of July first, nineteen

hundred ninety-seven.

(b) In addition to the increases made available in paragraph (a) of

this subdivision for the period beginning January first, nineteen

hundred ninety-seven through March thirty-first, nineteen hundred

ninety-eight, an additional ten million dollars, together with any

matching federal and local government funds, shall be added to provide a

uniform percentage increase, based on July first, nineteen hundred

ninety-seven enrollment to the existing rates paid for all premium

groups to all managed care providers whose rates were set by the

competitive bidding process.

(c) In addition to the increases made available in paragraphs (a) and

(b) of this subdivision for the period beginning January first, nineteen

hundred ninety-seven through March thirty-first, nineteen hundred

ninety-eight, an additional amount equal to three million dollars

together with any matching federal and local government funds, shall be

made available to be added to the rates of health plans operating in

geographic areas where capacity is insufficient to allow attainment of

enrollment goals consistent with the federal 1115 waiver known as the

Partnership Plan. Such amount shall be distributed subject to a

demonstration to the commissioner's satisfaction that the plan has

executed a contract amendment providing for an increase in enrollment

proportional to the size of the plan and the remaining unenrolled

population in the county. In evaluating the plan's demonstration, the

commissioner shall consider the degree to which the plan has increased

the number of primary or specialty care practitioners or diagnostic and

treatment centers in its network or whether the additional rate increase

would permit the plan to generate greater enrollments while continuing

to meet the financial requirements of the public health law or the

insurance law whichever is applicable and regulations promulgated

pursuant thereto.

Any amount identified in this paragraph remaining uncommitted by

December thirty-first, nineteen hundred ninety-seven shall be

distributed in a manner consistent with paragraph (b) of this

subdivision.

(d) A plan shall be eligible for payments pursuant to paragraphs (a),

(b) and (c) of this subdivision for such periods as the plan has a

contract with one or more social services districts; provided, however

that the plan has a contract, or has made a good faith effort to enter

into a contract, in that district effective through March thirty-first,

nineteen hundred ninety-eight.

(e) For the period from April first, nineteen hundred ninety-eight

through March thirty-first, nineteen hundred ninety-nine, the premium

rates paid by the department of health to all managed care providers

whose rates were set under the competitive bidding process shall be

equal to (i) the managed care provider's rate as of March thirty-first,

nineteen hundred ninety-eight increased by a uniform trend factor; plus,

(ii) four million dollars together with any matching federal and local

government funds to be added as a uniform percentage increase to such

provider's rate as of March thirty-first, nineteen hundred ninety-eight,

based on enrollment in the premium group as of April first, nineteen

hundred ninety-eight.

(f) For the period from April first, nineteen hundred ninety-eight

through March thirty-first, nineteen hundred ninety-nine, an additional

amount equal to four million dollars together with any matching federal

and local government funds, shall be made available for managed care

rate adjustments consistent with the criteria set forth in paragraph (c)

of this subdivision. Any amount identified in this paragraph remaining

uncommitted by December thirty-first, nineteen hundred ninety-eight

shall be added as a uniform percentage increase to the rates of all

managed care providers eligible for an increase under paragraph (e) of

this subdivision.

22. Chemung county demonstration project. (a) The legislature finds

that the particular circumstances of Chemung county warrant authorizing

this demonstration project, including the rural nature of the county,

the absence of a comprehensive medicaid managed care provider serving

the area at this time, patient care needs, and aspects of the health

care provider base.

(b) within all or part of Chemung county (referred to in this

subdivision as "the catchment area"), the department of health and the

Chemung county department of social services are authorized to conduct a

Medicaid research and demonstration project (referred to in this

subdivision as the "demonstration project") for the purpose of testing

the use of innovative administrative techniques, new reimbursement

methods, and management of care models, so as to promote more efficient

use of health resources, a healthier population and containment of

Medicaid program costs.

(c) As part of the demonstration project, the Chemung county

department of social services is authorized to contract with a managed

care provider for the purposes of, without limitation, developing and

managing a provider of care network, establishing provider payment rates

and fees, paying provider claims, providing care management services to

project participants, and managing the utilization of project services.

(d) The demonstration project shall be consistent with the provisions

of this section, except:

(i) The department may waive any rules or regulations, as necessary to

implement and consistent with this subdivision.

(ii) The demonstration project shall not be subject to:

(A) paragraph (b) of subdivision four of this section;

(B) subparagraphs (i), (ii), (iii) (v) and (viii) of paragraph (e) of

subdivision four of this section;

(C) paragraph (f) of subdivision four of this section;

(D) paragraph (g) of subdivision four of this section;

(E) subdivision five of this section; provided that in approving the

demonstration project or modifications to it, the department shall

consider the criteria in that subdivision;

(F) sections two hundred seventy-two and two hundred seventy-three of

the public health law;

(G) section three hundred sixty-five-i of this title.

(iii) Notwithstanding subdivision three of this section, participation

in the project shall be mandatory for all or any specified categories of

persons eligible for services under this title for whom the Chemung

county department of social services has fiscal responsibility pursuant

to section three hundred sixty-five of this title and who reside within

the demonstration project catchment area, as determined by the

commissioner of health; provided, however, that eligible persons who are

also beneficiaries under title XVIII of the federal social security act

and persons who reside in residential health care facilities shall not

be eligible to participate in the project.

(e)(i) Persons who are enrolled in or apply for medical assistance on

or before the date the demonstration project takes effect shall receive

sixty days written notice prior to participating in the demonstration

project, including an explanation of the demonstration project and the

participant's rights and responsibilities. Persons who apply for medical

assistance thereafter shall receive such notice at the time of applying

for medical assistance.

(ii) The demonstration project shall provide adequate services to

overcome language barriers for participants.

(iii) Participants in the demonstration project whose participation in

a managed care program would not otherwise be mandatory under

subdivision three of this section, who, at the time they enter the

demonstration project, have an established relationship with and are

receiving services from one or more medical services providers that are

not included in the demonstration project's provider network (an

"out-of-network provider"), shall be permitted to continue to receive

services from such providers until their course of treatment is

complete, or in the case of a pregnant woman, while pregnant and for

sixty days post-partum. Out-of-network providers that provide services

pursuant to this subparagraph shall be subject to the utilization review

and care management procedures prescribed by the managed care provider

and shall be reimbursed at the rate that would be paid to such providers

by the medical assistance program on a fee for service basis pursuant to

this title, and shall accept such reimbursement as payment in full.

(f) The provisions of this subdivision shall not apply unless all

necessary approvals under federal law and regulation have been obtained

to receive federal financial participation in the costs of health care

services provided pursuant to this subdivision.

(g) The commissioner of health is authorized to submit amendments to

the state plan for medical assistance and/or submit one or more

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

necessary to obtain the federal approvals necessary to implement this

subdivision.

(h) The demonstration project shall terminate five years after it is

approved by the department and all necessary approvals under federal law

and regulations under paragraph (f) of this subdivision have been

obtained, unless terminated sooner by the Chemung county department of

social services.

23. (a) As a means of protecting the health, safety and welfare of

recipients, in addition to any other sanctions that may be imposed, the

commissioner, in consultation with the commissioners of the office of

mental health and the office of alcoholism and substance abuse services,

where appropriate, shall appoint temporary management of a managed care

provider upon determining that the managed care provider has repeatedly

failed to meet the substantive requirements of sections 1903(m) and 1932

of the federal Social Security Act and regulations. A hearing shall not

be required prior to the appointment of temporary management.

(b) The commissioner and/or his or her designees, which may be

individuals within the department or other individuals or entities with

appropriate knowledge and experience, may be appointed as temporary

management. The commissioner may appoint the superintendent of financial

services and/or his or her designees as temporary management of any

managed care provider which is subject to rehabilitation pursuant to

article seventy-four of the insurance law.

(c) The responsibilities of temporary management shall include

oversight of the managed care provider for the purpose of removing the

causes and conditions which led to the determination requiring temporary

management, the imposition of improvements to remedy violations and,

where necessary, the orderly reorganization, termination or liquidation

of the managed care provider.

(d) Temporary management may hire and fire managed care provider

personnel and expend managed care provider funds in carrying out the

responsibilities imposed pursuant to this subdivision.

(e) The commissioner, in consultation with the superintendent with

respect to any managed care provider subject to rehabilitation pursuant

to article seventy-four of the insurance law, may make available to

temporary management for the benefit of a managed care provider for the

maintenance of required reserves and deposits monies from such funds as

are appropriated for such purpose.

(f) The commissioner is authorized to establish in regulation

provisions for the payment of fees and expenses from funds appropriated

for such purpose for non-governmental individuals and entities appointed

as temporary management pursuant to this subdivision.

(g) The commissioner may not terminate temporary management prior to

his or her determination that the managed care provider has the

capability to ensure that the sanctioned behavior will not recur.

(h) During any period of temporary management individuals enrolled in

the managed care provider being managed may disenroll without cause.

Upon reaching a determination that requires temporary management of a

managed care provider, the commissioner shall notify all recipient

enrollees of such provider that they may terminate enrollment without

cause during the period of temporary management.

(i) The commissioner may adopt and amend rules and regulations to

effectuate the purposes and provisions of this subdivision.

24. Claims submitted to a managed care provider for payment for

medical care, services, or supplies furnished by an out-of-network

medical services provider must be submitted within fifteen months of the

date the medical care, services, or supplies were furnished to an

eligible person to be valid and enforceable against the managed care

provider. This deadline for claims submission shall not apply where the

claims submission is warranted to address findings or recommendations

identified in a state or federal audit except where such audit also

indicates that an inappropriate provider payment was solely the fault of

the out-of-network health care provider.

25. Effective January first, two thousand thirteen, notwithstanding

any provision of law to the contrary, managed care providers shall cover

medically necessary prescription drugs in the atypical antipsychotic

therapeutic class, including non-formulary drugs, upon demonstration by

the prescriber, after consulting with the managed care provider, that

such drugs, in the prescriber's reasonable professional judgment, are

medically necessary and warranted.

25-a. Effective July first, two thousand thirteen, notwithstanding any

provision of law to the contrary, managed care providers shall cover

medically necessary prescription drugs in the anti-depressant,

anti-retroviral, anti-rejection, seizure, epilepsy, endocrine,

hematologic and immunologic therapeutic classes, including non-formulary

drugs, upon demonstration by the prescriber, after consulting with the

managed care provider, that such drugs, in the prescriber's reasonable

professional judgment, are medically necessary and warranted.

26. The commissioner of health shall develop a standard prior

authorization request form or forms to be utilized by all managed care

providers for purposes of submitting a request for a utilization review

determination for coverage of prescription drug benefits under this

title. The managed care provider shall make the standard prior

authorization request form or forms available to, and shall accept it or

them from, prescribing providers in paper and electronic form.

26-a. Managed care providers shall require prior authorization of

prescriptions of opioid analgesics in excess of four prescriptions in a

thirty-day period, provided, however, that this subdivision shall not

apply if the patient is a recipient of hospice care, has a diagnosis of

cancer or sickle cell disease, or any other condition or diagnosis for

which the commissioner of health determines prior authorization is not

required.

26-b. Managed care providers shall not require prior authorization for

any buprenorphine products, methadone or long acting injectable

naltrexone for detoxification or maintenance treatment of a substance

use disorder prescribed according to generally accepted national

professional guidelines for the treatment of a substance use disorder.

26-c. Managed care providers shall not require prior authorization for

methadone, when used for opioid use disorder and administered or

dispensed in an opioid treatment program.

** 27. The commissioner of the department of health may make any

necessary amendments to a contract pursuant to this section with a

managed care provider, as defined in paragraph (b) of subdivision one of

this section, to allow such managed care provider 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 27's

** 27. (a) The centers for medicare and medicaid services has

established an initiative to align incentives between medicare and

medicaid. The goal of the initiative is to increase access to seamless,

quality programs that integrate services for the dually eligible

beneficiary as well as to achieve both state and federal health care

savings by improving health care delivery and encouraging high-quality

efficient care. In furtherance of this goal, the legislature authorizes

the commissioner of health to establish a fully integrated dual

advantage (FIDA) program.

(b) The FIDA program shall provide targeted populations of

medicare/medicaid dually eligible persons with comprehensive health

services that include the full range of medicare and medicaid covered

services, including but not limited to primary and acute care,

prescription drugs, behavioral health services, care coordination

services, and long-term supports and services, as well as other

services, through managed care providers, as defined in subdivision one

of this section, including managed long term care plans, certified

pursuant to section forty-four hundred three-f of the public health law.

(c) Under the FIDA program established pursuant to this subdivision,

up to three managed long term care plans may be authorized to

exclusively enroll individuals with developmental disabilities, as such

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

commissioner of health may waive any of the department's regulations as

such 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 service for

individuals with developmental disabilities that are adequate and

appropriate to meet the needs of such individuals and that will ensure

their health and safety. The commissioner of the office for people with

developmental disabilities may waive any of the office for people with

developmental disabilities' regulations as such commissioner, in

consultation with the commissioner of health, deems necessary to allow

such managed long term care plans to provide or arrange for services for

individuals with developmental disabilities that are adequate and

appropriate to meet the needs of such individuals and that will ensure

their health and safety.

(d) The provisions of this subdivision shall not apply unless all

necessary approvals under federal law and regulation have been obtained

to receive federal financial participation in the costs of health care

services provided pursuant to this subdivision.

(e) The commissioner of health is authorized to submit amendments to

the state plan for medical assistance and/or submit one or more

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

necessary to obtain the federal approvals necessary to implement this

subdivision.

(f) Notwithstanding any inconsistent provisions of this section and

sections one hundred twelve and one hundred sixty-three of the state

finance law, or section one hundred forty-two of the economic

development law, or any other law to the contrary, the commissioner of

health and, in the case of FIDAs authorized exclusively to enroll

persons with developmental disabilities, the commissioner of health and

the commissioner of the office for people with developmental

disabilities, may contract with FIDAs approved under this section

without a competitive bid or request for proposal process, are

authorized to enter into a contract or contracts under this section,

provided, however, that:

(i) the department of health shall post on its website, for a period

of no less than thirty days:

(A) a description of the proposed services to be provided pursuant to

the contract or contracts;

(B) the criteria for selection of a contractor or contractors;

(C) the period of time during which a prospective contractor may seek

selection, which shall be no less than thirty days after such

information is first posted on the website; and

(D) the manner by which a prospective contractor may seek such

selection, which may include submission by electronic means;

(ii) all reasonable and responsive submissions that are received from

prospective contractors in a timely fashion shall be reviewed by the

commissioner of health or commissioners, as applicable; and

(iii) the commissioner or, in the case of FIDAs authorized exclusively

to enroll persons with developmental disabilities, the commissioner of

health and the commissioner of the office for people with developmental

disabilities, may select such contractor or contractors that, in their

discretion, have demonstrated the ability to effectively, efficiently

and economically integrate health and long term care services, and meet

the standards for a certificate of authority under the public health law

for the provision of services applicable to the type of managed long

term care plan that such contractor proposes to operate.

(g) Nothing in this section shall be construed as requiring an

individual with a developmental disability to enroll in a FIDA that is

authorized to exclusively enroll individuals with developmental

disabilities.

(h) Nothing in this section shall make enrollment in a medicare

managed care plan a condition of an individual's participation in the

FIDA program, or affect the individual's entitlement to payment of

applicable medicare managed care or fee-for-service coinsurance

deductibles by the individual's FIDA plan.

** NB There are 2 sb 27's

** 28. To the extent that any provision of this section is

inconsistent with any provision of section forty-four hundred three-g of

the public health law, such provision of this section shall not apply to

an entity authorized to operate pursuant to section forty-four hundred

three-g of the public health law.

** NB Repealed December 31, 2027

29. In the event that the department receives approval from the

Centers for Medicare and Medicaid Services to amend its 1115 waiver or

receives approval for a new 1115 waiver prior to or following the

effective date of the chapter of the laws of two thousand twenty-four

that amended this subdivision, the commissioner is authorized to enter

into contracts and to amend the terms of contracts awarded prior to the

effective date of the chapter of the laws of two thousand twenty-four

that amended this subdivision, for the purpose of assisting the

department of health with implementing projects authorized under such

waiver approval. Notwithstanding the provisions of sections one hundred

twelve and one hundred sixty-three of the state finance law, or sections

one hundred forty-two and one hundred forty-three of the economic

development law, or any contrary provision of law, contracts may be

entered or contract amendments may be made pursuant to this subdivision

until March thirty-first, two thousand twenty-seven without a

competitive bid or request for proposal process; provided, however, in

the case of a contract entered into after the effective date of this

subdivision, that:

(a) The department of health shall post on its website, for a period

of no less than thirty days:

(i) A description of the proposed services to be provided pursuant to

the contract or contracts;

(ii) The criteria for selection of a contractor or contractors;

(iii) The period of time during which a prospective contractor may

seek selection, which shall be no less than thirty days after such

information is first posted on the website; and

(iv) The manner by which a prospective contractor may seek such

selection, which may include submission by electronic means;

(b) All reasonable and responsive submissions that are received from

prospective contractors in timely fashion shall be reviewed by the

commissioner of health; and

(c) The commissioner of health shall select such contractor or

contractors that, in such commissioner's discretion, are best suited to

serve the purposes of this section.

30. Notwithstanding the provisions of section one hundred sixty-three

of the state finance law, or sections one hundred forty-two and one

hundred forty-three of the economic development law, or any contrary

provision of law, in the event that the state receives prior approval

and enhanced financial participation from the Centers for Medicaid and

Medicare Services, Administration for Children and Families and the

Federal Food and Nutrition Services for reimbursement pursuant to an

A-87 cost allocation waiver for enhanced funding for integrated

eligibility systems, the state is authorized to enter into contracts,

and/or to amend the terms of contracts awarded prior to the effective

date of this subdivision, without a competitive bid or request for

proposal process, consistent with federal requirements, for the purpose

of implementing projects authorized under such waiver amendment;

provided, however, in the case of a contract entered into after the

effective date of this subdivision, that:

(a) The office of temporary and disability assistance and the office

of general services, or another state agency, shall post on its website

and concurrently provide to the chair of the senate health committee and

the chair of the assembly health committee, for a period of no less than

thirty days:

(i) A description of the proposed services to be provided pursuant to

the contract or contracts;

(ii) The criteria for selection of a contractor or contractors;

(iii) The period of time during which a prospective contractor may

submit an offer, which shall be no less than thirty days after such

information is first posted on the website; and

(iv) The manner by which a prospective contractor may submit an offer,

which may include submission by electronic means;

(b) All responsive and reasonable offers that are received from

prospective contractors in timely fashion shall be reviewed by the

commissioner of temporary and disability assistance or other state

agency; and

(c) The commissioners of the department of health, the office of

temporary and disability assistance and the office of children and

family services, working in cooperation with the state chief information

officer and the office of general services, shall award such contract to

the contractor or contractors offer that provides the best value as such

term is defined in section one hundred sixty-three of the state finance

law, to the state. At notification the commissioner of health shall

provide this information to the chair of the senate standing health

committee and the chair of the assembly health committee.

(d) All decisions made and approaches taken pursuant to this

subdivision shall be documented in a procurement record as defined in

section one hundred sixty-three of the state finance law.

(e) In accordance with all federal advance planning document guidance

and within the parameters established by the enhanced financial

participation from the centers for Medicaid and Medicare services,

administration for children and families and the federal food and

nutrition services for reimbursement to an A-87 cost allocation waiver

for enhanced funding for integrated eligibility systems, Phase 1 will

include foundational allowable shared service components required to

successfully meet the requirements for non-MAGI Medicaid such as a

common client portal, document management, rules engines, workflow

management tools, case management, notices and training.

(f) The contract will require training to be provided at no cost to

the social services districts.

(g) The contract shall require the completion of shared service

components by the timelines necessary to receive the enhanced financial

participation from the centers for Medicaid and Medicare services,

administration for children and families and the federal food and

nutrition services for reimbursement to an A-87 cost allocation waiver.

(h) The commissioner shall provide, within thirty days of award of

such contract or contracts, the chair of the senate standing committee

on health and the chair of the assembly health committee with a report

outlining the procurement and awards.

31. (a) The commissioner shall require managed care providers under

this section, managed long-term care plans under section forty-four

hundred three-f the public health law and other appropriate long-term

service programs to adopt expedited procedures for approving personal

care services for a medical assistance recipient who requires immediate

personal care or consumer directed personal assistance services pursuant

to paragraph (e) of subdivision two of section three hundred

sixty-five-a of this title or section three hundred sixty-five-f of this

title, respectively, or other long-term care, and provide such care or

services as appropriate, pending approval by such provider or program.

32. (a) The commissioner, or for the purposes of subparagraph (iv) of

paragraph (c) of this subdivision, the Medicaid inspector general in

consultation with the commissioner, may, in his or her discretion, apply

penalties to managed care organizations subject to this section and

article forty-four of the public health law, including managed long term

care plans, for untimely or inaccurate submission of encounter data;

provided however, no penalty shall be assessed if the managed care

organization submits, in good faith, timely and accurate data and a

material amount of such data is not successfully received by the

department as a result of department system failures or technical issues

that are beyond the control of the managed care organization.

(b) The commissioner, or for the purposes of subparagraph (iv) of

paragraph (c) of this subdivision, the Medicaid inspector general in

consultation with the commissioner, shall consider the following when

determining whether to assess a penalty against a managed care

organization and the amount of such penalty:

(i) the degree to which the managed care organization submitted

inaccurate data at a category of service level and the frequency of such

inaccurate data submissions by the managed care organization;

(ii) the degree to which the managed care organization submitted

untimely data or no data and the frequency of such untimely data

submissions or failures to submit by the managed care organization; and

(iii) the timeliness of the managed care organization in curing or

correcting inaccurate or untimely data.

For purposes of this section, "encounter data" shall mean all

encounter records or adjustments to previously submitted records which

the managed care organization has received and processed from provider

encounter or claim records of all contracted services rendered to an

enrollee of the managed care organization in the current or any

preceding month. Any penalty assessed under this subdivision shall be

calculated as a percentage of the Medicaid capitated premium calculated

by the department and paid to the managed care organization.

(c) (i) Penalties assessed pursuant to this subdivision against a

managed care organization other than a managed long term care plan

certified pursuant to section forty-four hundred three-f of the public

health law shall be as follows:

(A) for encounter data submitted or resubmitted past the deadlines set

forth in the model contract, the Medicaid capitated premiums shall be

reduced by one-third percent; and

(B) for incomplete or inaccurate encounter data, evaluated at a

category of service level, that fails to conform to department developed

benchmarks for completeness and accuracy, the Medicaid capitated

premiums shall be reduced by one and one-third percent; and

(C) for submitted data that results in a rejection rate in excess of

ten percent of department developed volume benchmarks, the Medicaid

capitated premiums shall be reduced by one-third percent.

(ii) Penalties assessed pursuant to this subdivisions against a

managed long term care plan certified pursuant to section forty-four

hundred three-f of the public health law shall be as follows:

(A) for encounter data submitted or resubmitted past the deadlines set

forth in the model contract, the Medicaid capitated premiums shall be

reduced by one-quarter percent;

(B) for incomplete or inaccurate encounter data, evaluated at a

category of service level, that fails to conform to department developed

benchmarks for completeness and accuracy, the Medicaid capitated

premiums shall be reduced by one percent; and

(C) for submitted data that results in a rejection rate in excess of

ten percent of department developed volume benchmarks, the Medicaid

capitated premiums shall be reduced by one-quarter percent.

(iii) For incomplete or inaccurate encounter data, identified in the

course of an audit, investigation or review by the Medicaid inspector

general, the Medicaid capitated premiums shall be reduced by an

additional one percent.

(d) (i) Penalties under this subdivision may be applied to any and all

circumstances described in paragraph (b) of this subdivision until the

managed care organization complies with the requirements for submission

of encounter data.

(ii) No penalties for late, incomplete or inaccurate encounter data

shall be assessed against managed care organizations in addition to

those provided for in this subdivision, provided, however, that nothing

in this paragraph shall prohibit the imposition of penalties, in cases

of fraud, waste or abuse, otherwise authorized by law.

33. For services under this title provided by residential health care

facilities under article twenty-eight of the public health law, the

commissioner shall direct managed care organizations licensed under

article forty-four of the public health law, article forty-three of the

insurance law, and this section, to continue to reimburse at a benchmark

rate which is to be the fee-for-service rate calculated pursuant to

section twenty-eight hundred eight of the public health law. The

benchmark fee-for-service rate shall continue to be paid by such managed

care organizations for all services provided by residential healthcare

facilities from the effective date of this subdivision at least until

December thirty-first, two thousand twenty. The commissioner may

require, as a condition of continuing to require payment at such

benchmark rate that aggregate managed care expenditures to residential

health care facilities meet the alternative payment methodology

requirements set forth in attachment I of the New York State section

1115 medicaid redesign team waiver as approved by the centers for

medicare and medicaid services. The commissioner of health shall waive

such requirements if a sufficient number of providers, as determined by

the commissioner, suffer a financial hardship as a consequence of such

alternative payment methodology requirements, or if the commissioner

determines that such alternative payment methodologies significantly

threaten individuals' access to residential health care facility

services; such waiver may be applied on a provider-specific or

industry-wide basis. Further, such requirements may be waived, as the

commissioner determines necessary, to comply with federal rules or

regulations governing these payment methodologies.

34. For purposes of recovery of overpayments pursuant to subdivision

thirty-five of this section, any payment made pursuant to the state's

managed care program, including payments made by managed long term care

plans, shall be deemed a payment by the state's medical assistance

program, provided that this subdivision shall not permit the imposition

of a lien or recovery against property of an individual or estate on

account of medical assistance payments where recovery is made against

the individual's managed care provider or provider of medical assistance

program items or services. Provided however nothing in this subdivision

shall be construed to limit recoveries under other relevant sections of

law.

35. Recovery of overpayments from network providers. (a) Where the

Medicaid inspector general during the course of an audit, investigation,

or review, or the deputy attorney general for the Medicaid fraud control

unit during the course of an investigation or prosecution for Medicaid

fraud, identifies medical assistance overpayments made by a managed care

provider or managed long term care plan to its subcontractor or

subcontractors or provider or providers, the state shall have the right

to recover the overpayment from the subcontractor or subcontractors,

provider or providers, or the managed care provider or managed long term

care plan; provided, however, in no event shall the state duplicate the

recovery of an overpayment from a provider or subcontractor.

(b) Where the state is unsuccessful in recovering an overpayment from

the subcontractor or subcontractors or provider or providers, the

Medicaid inspector general may require the managed care provider or

managed long term care plan to recover the medical assistance

overpayment identified in paragraph (a) of this subdivision on behalf of

the state. The managed care provider or managed long term care plan

shall remit to the state the full amount of the identified overpayment

no later than six months after receiving notice of the overpayment from

the state.

36. Medicaid Program Integrity Reviews. (a) For purposes of this

subdivision, managed care provider shall also include managed long term

care plans.

(b) The Medicaid inspector general shall conduct periodic reviews of

the contractual performance of each managed care provider as it relates

to the managed care provider's program integrity obligations under its

contract with the department. The Medicaid inspector general, in

consultation with the commissioner, shall publish on its website, a list

of those contractual obligations pursuant to which the managed care

provider's program integrity performance shall be evaluated, including

benchmarks, prior to commencing any review. A Medicaid program integrity

review of a managed care provider conducted pursuant to this

subdivision, may be completed no more than annually. Reviews performed

pursuant to this subdivision shall include a review of compliance with

contractual standards which prevent fraud, waste, or abuse. Such

standards may include but are not limited to excluded providers,

restricted recipient program, reporting obligations, compliance

programs, and suspension of payments. However, if the Medicaid inspector

general determines that a subsequent review, pursuant to this

subdivision, is necessary, a second review may occur within one year.

(c) If, as a result of his or her review, the Medicaid inspector

general determines that a managed care provider is not meeting its

program integrity obligations, the Medicaid inspector general may

recover from the managed care provider up to two percent of the Medicaid

premiums paid to the managed care provider for the period under review.

Any premium recovery under this subdivision shall be a percentage of the

administrative component of the Medicaid premium calculated by the

department and may be recovered by the department in the same manner it

recovers overpayments.

(d) The managed care provider shall be entitled to receive a draft

audit report and final audit report containing the results of the

Medicaid inspector general's review. If the Medicaid inspector general

determines to recover a percentage of the premium as described in

paragraph (c) of this subdivision, the managed care provider shall be

entitled to notice and an opportunity to be heard in accordance with

section twenty-two of this chapter.

37. Managed care providers shall report to the department all sources

and amounts of income, payments, and financial benefits related to the

provision of pharmacy benefits, including, but not limited to, any

pricing discounts, rebates of any kind, inflationary payments, credits,

clawbacks, fees, grants, chargebacks, reimbursements, or other benefits

whether such income, payments, or financial benefits are received

directly by the managed care provider or passed through from a pharmacy

benefit manager or other entity. Managed care providers shall also

report to the department the amounts of any administrative fees paid to

cover the cost of providing pharmacy benefit management services. The

reporting required in this subdivision shall be supplemental to and

included with other existing reporting requirements, including but not

limited to any quarterly reporting requirements.

** 38. (a) When a patient's health care provider prescribes an opioid

dependence agent or opioid antagonist that is not on the statewide

formulary of opioid dependence agents and opioid antagonists, the

prescriber shall consult with the managed care plan to confirm that in

his or her reasonable professional judgment, the patient's clinical

condition is consistent with the criteria for approval of the

non-preferred or non-formulary drug. Such criteria shall include:

(i) the preferred drug has been tried by the patient and has failed to

produce the desired health outcomes;

(ii) the patient has tried the preferred drug and has experienced

unacceptable side effects;

(iii) the patient has been stabilized on a non-preferred drug and

transition to the preferred or formulary drug would be medically

contraindicated; or

(iv) other clinical indications identified by the committee for the

patient's use of the non-preferred drug, which shall include

consideration of the medical needs of special populations, including

children, elderly, chronically ill, persons with mental health

conditions, persons affected by HIV/AIDS and pregnant persons with a

substance use disorder.

(b) The managed care plan shall have a process for a patient, or the

patient's prescribing health care provider, to request a review for a

prescription drug that is not on the statewide formulary of opioid

dependence agents and opioid antagonists, consistent with 42 C.F.R.

438.210(d), or any successor regulation.

(c) A managed care plan's failure to comply with the requirements of

this subdivision shall be subject to a one thousand dollar fine per

violation.

** NB There are 2 sb 38's

** 38. Penalties for the submission of misstated cost reports. (a) For

purposes of this subdivision, managed care provider shall also include

managed long-term care plans.

(b) The Medicaid inspector general may, in his or her discretion and

in consultation with the commissioner, impose a penalty on a managed

care provider whose filed cost report contained a misstatement of fact

including:

(i) unsubstantiated or improper costs;

(ii) number of member months;

(iii) number of events.

For purposes of this paragraph, number of events shall include, but

not be limited to understated births or deliveries.

(c) (i) For misstatements found in subparagraph (i) of paragraph (b)

of this subdivision, the penalty shall be equal to the amount of the

misstatement multiplied by two.

(ii) For misstatements found in subparagraph (ii) of paragraph (b) of

this subdivision, the penalty shall be the amount of the premium

capitation paid by the department for the region per member month.

(iii) For misstatements found in subparagraph (iii) of paragraph (b)

of this subdivision, the penalty shall be the amount of the supplemental

capitation paid by the department for the region per member event.

(d) Any penalty imposed under this subdivision may be recovered by the

department in any manner authorized by law.

(e) The managed care provider against whom a penalty is imposed

pursuant to this subdivision shall be entitled to notice and an

opportunity to be heard in accordance with section twenty-two of this

chapter.

** NB There are 2 sb 38's

39. Medicaid fraud, waste and abuse prevention. (a) For purposes of

this subdivision, managed care provider shall also include managed

long-term care plans.

(b) Managed care providers shall adopt and implement policies and

procedures designed to detect and prevent fraud, waste and abuse. This

shall include the adoption and implementation of a compliance program as

required by section three hundred sixty-three-d of this title and the

terms of the contract between the managed care provider and the state,

and for managed care providers with an enrolled population of one

thousand or more persons in the aggregate in any given year, the

establishment of a special investigation unit which will have primary

responsibility for implementing the managed care provider's policies and

procedures to detect and prevent fraud, waste and abuse, as it relates

to the managed care provider's participation in the medical assistance

program.

(c) The managed care provider shall coordinate its fraud, waste and

abuse prevention activities with the Medicaid inspector general and the

department of health. The Medicaid inspector general, in consultation

with the department of health, may promulgate regulations establishing

standards and requirements for the operation of managed care provider

fraud, waste and abuse prevention activities, including requirements for

special investigation units. The provisions of this subdivision

notwithstanding, the managed care provider shall continue to comply with

all the requirements of section forty-four hundred fourteen of the

public health law.

40. (a) The commissioner shall be entitled to penalize managed care

providers for failure to meet the contractual obligations and

performance standards of the executed contract between the state and a

managed care provider in place at the time of the failure.

(b) The commissioner shall have sole discretion in determining whether

to impose a penalty for noncompliance with any provision of such

contract.

(c) (i) Penalties imposed by this subdivision against a managed care

provider shall be from two hundred fifty dollars up to twenty-five

thousand dollars per violation depending on the severity of the

noncompliance as determined by the commissioner.

(ii) The commissioner may elect, in their sole discretion, to assess

penalties imposed by this section from, and as a set off against,

payments due to the managed care provider, or payments that become due

any time after the assessment of penalties. Deductions may continue

until the full amount of the noticed penalties are paid in full.

(iii) All penalties imposed by the commissioner pursuant to this

subdivision shall be paid out of the administrative costs and profits of

the managed care provider. The managed care provider shall not pass the

penalties imposed by the commissioner pursuant to this subdivision

through to any medical services provider and/or subcontractor.

(d) For the purposes of this subdivision a violation shall mean a

determination by the commissioner that the managed care provider failed

to act as required under the contract between the state and the managed

care provider in place at the time of the failure, or applicable federal

and state statutes, rules or regulations governing managed care

providers. Each instance of a managed care provider failing to furnish

necessary and/or required medical services or items to each enrollee

shall be a separate violation and each day that an ongoing violation

continues shall be a separate violation.

(e) No penalties shall be assessed pursuant to this subdivision

without providing an opportunity for a formal hearing conducted in

accordance with section twelve-a of the public health law.

(f) Nothing in this subdivision shall prohibit the imposition of

damages, penalties or other relief, otherwise authorized by law,

including but not limited to cases of fraud, waste or abuse.

(g) The commissioner may promulgate any regulations necessary to

implement the provisions of this subdivision.

* NB Repealed March 31, 2029 (per ch. 165/1991)

* NB Repealed March 31, 2029 (per ch. 710/1988)