senate Bill S6228A

Signed By Governor
2011-2012 Legislative Session

Relates to accountable care organizations

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Archive: Last Bill Status Via A8869 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Oct 03, 2012 approval memo.14
signed chap.461
Sep 21, 2012 delivered to governor
Jun 21, 2012 returned to assembly
passed senate
3rd reading cal.1465
substituted for s6228b
Jun 21, 2012 substituted by a8869b
ordered to third reading cal.1465
committee discharged and committed to rules
Jun 12, 2012 print number 6228b
amend and recommit to finance
Jun 05, 2012 reported and committed to finance
May 29, 2012 print number 6228a
amend (t) and recommit to health
Jan 13, 2012 referred to health

Votes

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Jun 21, 2012 - Rules committee Vote

S6228B
24
0
committee
24
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
1
Abstained
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Jun 5, 2012 - Health committee Vote

S6228A
12
0
committee
12
Aye
0
Nay
3
Aye with Reservations
0
Absent
2
Excused
0
Abstained
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Health Committee Vote: Jun 5, 2012

aye wr (3)
excused (2)

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

Co-Sponsors

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S6228 - Bill Details

Law Section:
Public Health Law
Laws Affected:
Amd Art 29-E §§2999-n - 2999-r, §2818, Pub Health L

S6228 - Bill Texts

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Relates to accountable care organizations which are certified by the department of health to provide integrated health services and reduce health care costs.

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BILL NUMBER:S6228

TITLE OF BILL:
An act
to amend the public health law, the social services law and the public
authorities law, in relation to accountable care organizations

PURPOSE:
To regulate and promote the formation of accountable care
organizations and protect the public interest and the interests of
patients and health care providers.

SUMMARY OF PROVISIONS:
Amends Article 29-E of the Public Health Law to remove the
"demonstration" designation of the ACO program and remove the cap on
the number of certificates of authority for accountable care
organizations (ACO). The sunset of authority for the issuance of ACO
certificates is extended from December 31, 2015 to December 31, 2016.

Provides that an ACO be a not-for-profit or governmental entity.

Requires that an ACO shall have a governance system that represents the
participating health care providers and their employees, the ACO's
enrollees and patients, and the general public.

Requires procedures for reviewing and appealing patient care decisions.

Requires the commissioner to provide public disclosure of additional
statistical data relating to the quality of services, performance,
and other characteristics of ACOs such as providers, and encounter
data including outcome, quality and payment measures.

The ACO network will include federally-qualified health centers unless
the Commissioner finds one not available.

An ACO may seek to focus on providing health care services to patients
with one or more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO.

An ACO shall not, by incentives or otherwise, discourage a health care
provider from providing or an enrollee or patient from seeking
appropriate health care services.

An ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

Enrollee, patient, and health care provider participation in an ACO
shall be on a voluntary basis.

Authorizes the commissioner to seek federal grants, approvals and
waivers to facilitate the development of ACOs, and requires detailed
disclosure of such applications to the legislature.


Allows a third-patty payer to offer incentives for consumers to
participate in an ACO and prohibits discriminating against a consumer
for participating.

In relation to patients' rights to utilization review and external
appeal, Article 49 of the Public Health Law and article 48 of the
Insurance Law will apply to ACOs, except where the functions of a
managed care plan under these articles are the responsibility of a
third-patty health care payer.

An ACO may be deemed to be subject to the Insurance Law when an ACO
contracts with an enrollee or patient to provide health care services
to that person, where payment for those services is not primarily the
responsibility of a third-patty health care payer.

Enrollee, patient, and health care provider participation in an ACO
shall be on a voluntary basis.

An ACO may seek to focus on providing health care services to patients
with one or more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO. An ACO shall not, by incentives or
otherwise, discourage a health care provider from providing or an
enrollee or patient from seeking appropriate health care services. An
ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

The bill amends section 364-j of the Social Services Law to enable an
ACO to be a Medicaid recipient's managed care organization.

The bill amends section 2818 of the Public Health Law and section
1680-j of the Public Authorities Law to allow HEAL-NY funding for
allocation by the commissioner in relation to the development of ACOs
without competitive bid.

DOH would have authority to provide technical assistance to health
care providers and consumer assistance in a program, and to provide
assistance to the establishment of programs.

JUSTIFICATION:
In 2011 the Legislature established a demonstration program for
establishing accountable care organizations. ACO legislation was
needed first to provide a legal "safe harbor" for payers and
providers to come together without violating anti-trust and other
laws. Second, Medicaid and other payers need legal authority to
participate in new payment methodologies with ACOs.

However, the third, and perhaps most important need, to protect the
rights and interests of patients, health care providers, and the
general public, was only partly addressed.
Since the passage of the demonstration program it has become clear
that the limitation on the number of allowed ACOs is limiting the
ability of New York organizations to apply for federal ACO designation.


The bill provides a more complete legal structure foi- ACOs.
Strengthening protections for patients and providers goes hand in
hand with the removal of the limit on the number of ACOS that may be
authorized.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
Ten million in HEAL-NY funds.

EFFECTIVE DATE:
Immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6228

                            I N  S E N A T E

                            January 13, 2012
                               ___________

Introduced  by  Sens. HANNON, GOLDEN, MARTINS, RANZENHOFER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Health

AN ACT to amend the public health law, the social services law  and  the
  public authorities law, in relation to accountable care organizations

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 29-E of the public health law, as added by  section
66  of  part  H of chapter 59 of the laws of 2011, is amended to read as
follows:
                              ARTICLE 29-E
         ACCOUNTABLE CARE ORGANIZATIONS [DEMONSTRATION PROGRAM]
Section 2999-n. Accountable care organizations; findings; purpose.
        2999-o. Definitions.
        2999-p. Establishment of [ACO demonstration program] ACOS.
        2999-q. Accountable care organizations; requirements.
        2999-r. Other laws.
  S 2999-n. Accountable  care  organizations;  findings;  purpose.  [The
legislature  intends  to  test the ability of accountable care organiza-
tions to assume a role in delivering an array of health  care  services,
from  primary  and  preventive care through acute inpatient hospital and
post-hospital care.] The legislature finds that the formation and opera-
tion of accountable care organizations under this article,  and  subject
to appropriate regulation, can be consistent with the purposes of feder-
al  and  state  anti-trust, anti-referral, and other statutes, including
reducing over-utilization and expenditures. The legislature  finds  that
the  development  of  accountable  care organizations under this article
will reduce health care costs, promote effective  allocation  of  health
care  resources,  and  enhance  the  quality and accessibility of health
care. The legislature finds that this article is  necessary  to  promote
the  formation  of accountable care organizations and protect the public
interest and the interests of patients and health care providers.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13268-03-1

S. 6228                             2

  S 2999-o. Definitions. As used in this article,  the  following  terms
shall  have  the following meanings, unless the context clearly requires
otherwise:
  1.  "Accountable  care organization" or "ACO" means an organization of
clinically integrated health care providers certified by the commission-
er under this article.
  2. "Certificate of authority" or "certificate" means a certificate  of
authority issued by the commissioner under this article.
  3.  "Health  care  provider"  includes but is not limited to an entity
licensed or certified under article twenty-eight or thirty-six  of  this
chapter;  an entity licensed or certified under article sixteen, thirty-
one or thirty-two of the mental hygiene law; or a  health  care  practi-
tioner licensed or certified under title eight of the education law or a
lawful  combination  of  such  health  care  practitioners; and may also
include, to the extent provided by regulation of the commissioner, other
entities that provide  technical  assistance,  information  systems  and
services,  care coordination and other services to health care providers
and patients participating in an ACO.
  4. "Primary care" means the health care  fields  of  family  practice,
general pediatrics, primary care internal medicine, primary care obstet-
rics, or primary care gynecology, without regard to board certification,
provided by a health care provider acting within his, her, or its lawful
scope of practice.
  5.  "Third-party  health care payer" has its ordinary meanings and may
include any entities provided for by  regulation  of  the  commissioner,
which  may include an entity such as a pharmacy benefits manager, fiscal
administrator, or administrative services provider that participates  in
the administration of a third-party health care payer system.
  [6.  Any  references to the "department of financial services" and the
"superintendent of financial services" in this article shall mean, prior
to October third, two thousand eleven, respectively, the "department  of
insurance" and the "superintendent of insurance."]
  S  2999-p.  Establishment  of  [ACO demonstration program] ACOS. 1. An
accountable care organization: (a) is A NOT-FOR-PROFIT  OR  GOVERNMENTAL
ENTITY  THAT  IS  an  organization  of clinically integrated health care
providers that work together to provide, manage, and  coordinate  health
care (including primary care) for a defined population; with a mechanism
for shared governance; the ability to negotiate, receive, and distribute
payments;  and  accountability  for  the  quality, cost, and delivery of
health care to the ACO's patients; in accordance with this article;  and
(b) has been issued a certificate of authority by the commissioner under
this article.
  2.  The  commissioner shall establish a [demonstration] program within
the department to [test the ability] PROMOTE AND  REGULATE  THE  USE  of
ACOs  to  deliver  an  array  of health care services for the purpose of
improving the  quality,  coordination  and  accountability  of  services
provided to patients in New York.
  3.  The commissioner may issue a certificate of authority to an entity
that meets conditions for ACO certification as set forth in  regulations
promulgated  by the commissioner pursuant to section twenty-nine hundred
ninety-nine-q of this article. The commissioner shall  not  [issue  more
than seven certificates under this article, and shall not] issue any new
certificate under this article after December thirty-first, two thousand
[fifteen] SIXTEEN.
  4.  The commissioner may limit, suspend, or terminate a certificate of
authority if an ACO is not operating in accordance with this article.

S. 6228                             3

  5. The commissioner is authorized to seek federal approvals and  waiv-
ers  to  implement  this  article,  including  but  not limited to those
approvals or waivers  necessary  to  obtain  federal  financial  partic-
ipation.
  S 2999-q. Accountable care organizations; requirements. 1. The commis-
sioner  shall  promulgate  regulations establishing criteria for certif-
icates of authority, quality standards for ACOs, reporting  requirements
and  other  matters deemed to be appropriate and necessary in the opera-
tion and evaluation of [the demonstration program]ACOS UNDER THIS  ARTI-
CLE.    In promulgating such regulations, the commissioner shall consult
with the superintendent of financial services,  health  care  providers,
third-party  health  care  payers,  advocates representing patients, and
other appropriate parties.
  2. Such regulations may, and shall as necessary for purposes  of  this
article, address matters including but not limited to:
  (a)  The  governance,  leadership  and management structure of the ACO
THAT REASONABLY AND EQUITABLY REPRESENTS THE ACO'S PARTICIPATING  HEALTH
CARE  PROVIDERS,  EMPLOYEES  OF PARTICIPATING HEALTH CARE PROVIDERS, THE
ACO'S ENROLLEES AND PATIENTS, AND  THE  GENERAL  PUBLIC,  including  the
manner in which clinical and administrative systems and clinical partic-
ipation will be managed;
  (b)  Definition  of  the  population proposed to be served by the ACO,
which may include reference to a geographical area and  patient  charac-
teristics;
  (c)  The character, competence and fiscal responsibility and soundness
of an ACO and its principals, if and to the extent deemed appropriate by
the commissioner;
  (d) The adequacy of an ACO's  network  of  participating  health  care
providers, including primary care health care providers;
  (e)  Mechanisms  by  which an ACO will provide, manage, and coordinate
quality health care for its patients [and provide]  INCLUDING  ELEVATING
THE  SERVICES OF PRIMARY CARE HEALTH CARE PROVIDERS TO MEET PATIENT-CEN-
TERED  MEDICAL  HOME  STANDARDS,  COORDINATING  INTENSIVE  SERVICES  FOR
COMPLEX  HIGH-NEED PATIENTS, AND PROVIDING access to health care provid-
ers that are not participants in the ACO;
  (f) Mechanisms by which the ACO shall receive and distribute  payments
to  its participating health care providers, which may include incentive
payments (WHICH MAY INCLUDE MEDICAL HOME  PAYMENTS)  or  mechanisms  for
pooling  payments  received  by participating health care providers from
third-party payers and patients;
  (g) Mechanisms and criteria for accepting  health  care  providers  to
participate  in  the  ACO  that  are related to the needs of the patient
population to be served and needs and purposes of the ACO, and  prevent-
ing unreasonable discrimination;
  (h)  Mechanisms  for  quality  assurance  and grievance procedures for
patients or health care providers where appropriate, AND PROCEDURES  FOR
REVIEWING AND APPEALING PATIENT CARE DECISIONS;
  (i)  Mechanisms  that  promote  evidence-based  health  care,  patient
engagement, coordination of care, electronic health  records,  including
participation  in health information exchanges, and other enabling tech-
nologies;
  (j) Performance standards for, and measures to assess, the quality and
utilization of care provided by an ACO;
  (k) Appropriate requirements for ACOs to promote compliance  with  the
purposes of this article;

S. 6228                             4

  (l)  Posting  on  the department's website information about ACOs that
would be useful to health care providers and patients AND DATA  RELATING
TO:
  (I)  THE ACO'S PARTICIPATING HEALTH CARE PROVIDERS, INCLUDING INDIVID-
UAL HEALTH CARE PRACTITIONERS AFFILIATED WITH SUCH HEALTH CARE  PROVIDER
WHO PROVIDE HEALTH CARE TO THE HEALTH CARE PROVIDER'S PATIENTS; AND
  (II)  DATA, INCLUDING ENCOUNTER DATA, RELATING TO THE NATURE, OUTCOME,
AND QUALITY OF, AND PAYMENT FOR, HEALTH CARE PROVIDED BY THE PARTICIPAT-
ING HEALTH CARE PROVIDER TO THE PARTICIPATING PATIENT;
  (m) Requirements for the submission of information and  data  by  ACOs
and  their  participating and affiliated health care providers as neces-
sary for the evaluation of the success of  [the  demonstration  program]
SUCH ACOS;
  (n) Protection of patient rights as appropriate;
  (o)  The  impact  of  the  establishment and operation of an ACO [on],
INCLUDING PROVIDING THAT IT SHALL NOT DIMINISH access to any health care
service FOR THE POPULATION SERVED AND in the area served; and
  (p) Establishment of standards, as appropriate, to promote the ability
of an ACO to participate in applicable federal programs for ACOs.
  3. (A) AN ACO NETWORK OF  PARTICIPATING  PROVIDERS  SHALL  INCLUDE  AT
LEAST  ONE  FEDERALLY-QUALIFIED HEALTH CENTER; PROVIDED THAT THE COMMIS-
SIONER MAY WAIVE THIS REQUIREMENT IF  THERE  IS  NO  FEDERALLY-QUALIFIED
HEALTH CENTER SERVING THE AREA SERVED BY THE ACO.
  (B)  AN  ACO  MAY  SEEK  TO FOCUS ON PROVIDING HEALTH CARE SERVICES TO
PATIENTS WITH ONE OR MORE CHRONIC CONDITIONS OR SPECIAL NEEDS.  HOWEVER,
AN  ACO  MAY  NOT OTHERWISE, ON THE BASIS OF A PERSON'S MEDICAL OR DEMO-
GRAPHIC CHARACTERISTICS, DISCRIMINATE FOR OR AGAINST  OR  DISCOURAGE  OR
ENCOURAGE  ANY PERSON OR PERSON WITH RESPECT TO ENROLLING OR PARTICIPAT-
ING IN THE ACO.
  (C) AN ACO SHALL NOT, BY INCENTIVES OR OTHERWISE, DISCOURAGE A  HEALTH
CARE  PROVIDER  FROM  PROVIDING  OR  AN ENROLLEE OR PATIENT FROM SEEKING
APPROPRIATE HEALTH CARE SERVICES.
  (D) AN ACO SHALL NOT DISCRIMINATE AGAINST OR DISADVANTAGE A PATIENT OR
PATIENT'S REPRESENTATIVE FOR THE EXERCISE OF PATIENT AUTONOMY.
  4. (a) Subject to regulations of the  commissioner:  (i)  an  ACO  may
enter  into arrangements with one or more third-party health care payers
to establish payment methodologies for  health  care  services  for  the
third-party  health  care  payer's  enrollees provided by the ACO or for
which the ACO is responsible, such as  full  or  partial  capitation  or
other arrangements; (ii) such arrangements may include provision for the
ACO to receive and distribute payments to the ACO's participating health
care  providers,  including  incentive  payments and payments for health
care services from third-party health  care  payers  and  patients;  and
(iii)  an  ACO  may  include mechanisms for pooling payments received by
participating  health  care  providers  from  third-party   payers   and
patients.
  (b)  Subject  to regulations of the commissioner, the commissioner, in
consultation with the superintendent of financial services, may  author-
ize  a third-party health care payer to participate in payment methodol-
ogies with an ACO under this subdivision, notwithstanding  any  contrary
provision  of  this chapter, the insurance law, the social services law,
or the elder law, on finding that the payment methodology is  consistent
with the purposes of this article.
  (C) NO THIRD-PARTY HEALTH CARE PAYER SHALL:
  (I) IMPOSE ANY DEDUCTIBLE, CO-PAYMENT OR OTHER FORM OF CO-INSURANCE ON
ANY  ENROLLEE  OR  PATIENT  IN  CONNECTION  WITH THE ENROLLEE OR PATIENT

S. 6228                             5

PARTICIPATING IN AN ACO THAT IS HIGHER THAN IT WOULD  OTHERWISE  IMPOSE;
OR
  (II)  MAKE  ANY  DISTINCTION OR DISCRIMINATION AGAINST ANY ENROLLEE OR
PATIENT IN CONNECTION WITH THE ENROLLEE OR PATIENT PARTICIPATING  IN  AN
ACO, OR IMPOSE ANY RESTRICTION ON WHICH OF ITS ENROLLEES OR PATIENTS MAY
PARTICIPATE IN AN ACO; PROVIDED THAT:
  (A)  THIS  SUBDIVISION  SHALL  NOT  BE  CONSTRUED TO BAR A THIRD-PARTY
HEALTH CARE PAYER FROM PROVIDING INCENTIVES FOR ENROLLEES OR PATIENTS TO
PARTICIPATE IN AN ACO; AND
  (B) ENROLLEE, PATIENT, AND HEALTH CARE PROVIDER  PARTICIPATION  IN  AN
ACO SHALL BE ON A VOLUNTARY BASIS.
  [4.]  5.  The provision of health care services directly or indirectly
by an ACO through health care providers  shall  not  be  considered  the
practice  of  a profession under title eight of the education law by the
ACO.
  S 2999-r. Other laws. 1. (a) It is the policy of the state  to  permit
and  encourage  cooperative,  collaborative and integrative arrangements
among third-party health care payers and health care providers who might
otherwise be competitors under the active supervision of the commission-
er. To the extent that it is necessary to  accomplish  the  purposes  of
this  article,  competition  may be supplanted and the state may provide
state action immunity under state and federal antitrust laws  to  payors
and health care providers.
  (b)  The commissioner may engage in state supervision to promote state
action immunity under state and federal antitrust laws and may  inspect,
require,  or  request  additional  documentation  and take other actions
under this article to verify and make sure that this article  is  imple-
mented in accordance with its intent and purpose.
  2.  With  respect  to  the  planning, implementation, and operation of
ACOs, the commissioner, by regulation, may specifically  delineate  safe
harbors that exempt ACOs from the application of the following statutes:
  (a)  article  twenty-two  of  the  general  business  law  relating to
arrangements and agreements in restraint of trade;
  (b) article one hundred thirty-one-A of the education law relating  to
fee-splitting arrangements; and
  (c) title two-D of article two of this chapter relating to health care
practitioner referrals.
  3.  For  the  purposes of this article, an ACO shall be deemed to be a
hospital for purposes of sections twenty-eight hundred  five-j,  twenty-
eight  hundred  five-k,  twenty-eight  hundred  five-l  and twenty-eight
hundred five-m of this  chapter  and  subdivisions  three  and  five  of
section sixty-five hundred twenty-seven of the education law.
  4. (A) IN RELATION TO PATIENTS' RIGHTS OF ACCESS TO UTILIZATION REVIEW
AND  EXTERNAL  APPEAL,  AN  ACO (I) SHALL BE DEEMED TO BE A HEALTH PLAN,
SOLELY FOR PURPOSES OF ARTICLE FORTY-NINE OF THIS CHAPTER, EXCEPT  WHERE
THE FUNCTIONS OF A HEALTH PLAN UNDER THAT ARTICLE ARE THE RESPONSIBILITY
OF  A  THIRD-PARTY  HEALTHY CARE PAYER, AND (II) SHALL BE DEEMED TO BE A
MANAGED CARE PRODUCT, SOLELY FOR PURPOSES OF ARTICLE FORTY-EIGHT OF  THE
INSURANCE  LAW,  EXCEPT  WHERE  THE  FUNCTIONS OF A MANAGED CARE PRODUCT
UNDER THAT ARTICLE ARE THE RESPONSIBILITY OF A THIRD-PARTY  HEALTH  CARE
PAYER.
  (B)  WHERE  AN  ACO  CONTRACTS  WITH AN ENROLLEE OR PATIENT TO PROVIDE
HEALTH CARE SERVICES TO THAT PERSON, WHERE PAYMENT FOR THOSE SERVICES IS
NOT PRIMARILY THE RESPONSIBILITY OF A  THIRD-PARTY  HEALTH  CARE  PAYER,
NOTHING IN THIS ARTICLE SHALL PRECLUDE THE ACO FROM BEING DEEMED TO BE A
HEALTH  MAINTENANCE  ORGANIZATION  SUBJECT TO ARTICLE FORTY-FOUR OF THIS

S. 6228                             6

CHAPTER OR ENGAGED IN THE BUSINESS OF INSURANCE AND SUBJECT TO  APPLICA-
BLE  PROVISIONS  OF THIS INSURANCE LAW, INCLUDING ARTICLE FORTY-EIGHT OF
THE INSURANCE LAW.
  5.  THE  COMMISSIONER IS AUTHORIZED TO SEEK FEDERAL GRANTS, APPROVALS,
AND WAIVERS TO  IMPLEMENT  THIS  ARTICLE,  INCLUDING  FEDERAL  FINANCIAL
PARTICIPATION  UNDER  PUBLIC  HEALTH  COVERAGE.  THE  COMMISSIONER SHALL
PROVIDE COPIES OF APPLICATIONS AND OTHER  DOCUMENTS,  INCLUDING  DRAFTS,
SUBMITTED  TO  THE  FEDERAL  GOVERNMENT  SEEKING  SUCH  FEDERAL  GRANTS,
APPROVALS, AND WAIVERS TO THE CHAIRS OF THE  SENATE  FINANCE  COMMITTEE,
THE  ASSEMBLY  WAYS  AND  MEANS  COMMITTEE,  AND THE SENATE AND ASSEMBLY
HEALTH COMMITTEES SIMULTANEOUSLY WITH THEIR SUBMISSION  TO  THE  FEDERAL
GOVERNMENT.
  6.  THE  COMMISSIONER MAY DIRECTLY, OR BY CONTRACT WITH NOT-FOR-PROFIT
ORGANIZATIONS, PROVIDE:
  (A) CONSUMER ASSISTANCE TO PATIENTS PARTICIPATING  IN  OR  CONSIDERING
PARTICIPATING IN AN ACO AS TO MATTERS RELATING TO ACOS;
  (B)  TECHNICAL  AND  OTHER ASSISTANCE TO HEALTH CARE PROVIDERS PARTIC-
IPATING IN AN ACO AS TO MATTERS RELATING TO THE ACO;
  (C) ASSISTANCE TO ACOS TO PROMOTE THEIR FORMATION  AND  IMPROVE  THEIR
OPERATION, INCLUDING ASSISTANCE UNDER SECTION TWENTY-EIGHT HUNDRED EIGH-
TEEN OF THIS CHAPTER; AND
  (D) INFORMATION SHARING AND OTHER ASSISTANCE AMONG ACOS TO IMPROVE THE
OPERATION OF ACOS.
  S  2.  Paragraph  (b)  of subdivision 1 of section 364-j of the social
services law, as amended by chapter 649 of the laws  of  1996,  subpara-
graphs  (i)  and  (ii) as amended by chapter 433 of the laws of 1997, is
amended to read as follows:
  (b) "Managed care provider". An entity that provides or  arranges  for
the  provision  of  medical  assistance services and supplies to partic-
ipants 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; [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
  (III)  IS AN ACCOUNTABLE CARE ORGANIZATION UNDER ARTICLE TWENTY-NINE-E
OF THE PUBLIC HEALTH LAW.
  S 3. Section 2818 of the public health law is amended by adding a  new
subdivision 7 to read as follows:
  7.  NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION, SECTIONS
ONE HUNDRED TWELVE AND ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW,
OR ANY OTHER INCONSISTENT PROVISION OF LAW, OF THE FUNDS  AVAILABLE  FOR
EXPENDITURE  PURSUANT  TO THIS SECTION, TEN MILLION DOLLARS MAY BE ALLO-
CATED AND DISTRIBUTED BY THE COMMISSIONER WITHOUT A COMPETITIVE  BID  OR
REQUEST  FOR  PROPOSAL  PROCESS FOR GRANTS TO ACCOUNTABLE CARE ORGANIZA-
TIONS UNDER ARTICLE TWENTY-NINE-E OF THIS CHAPTER  FOR  THE  PURPOSE  OF
PROMOTING  THEIR FORMATION AND IMPROVING THEIR OPERATION.  CONSIDERATION
RELIED UPON BY  THE  COMMISSIONER  IN  DETERMINING  THE  ALLOCATION  AND
DISTRIBUTION  OF  THESE  FUNDS SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
NEED FOR AND CAPACITY OF THE ACCOUNTABLE CARE ORGANIZATION TO ACCOMPLISH
THE PURPOSES OF ARTICLE TWENTY-NINE-E OF THIS CHAPTER IN THE AREA TO  BE
SERVED.

S. 6228                             7

  S 4. The opening paragraph of section 1680-j of the public authorities
law,  as  amended  by  section 54 of part B of chapter 58 of the laws of
2005, is amended to read as follows:
  Notwithstanding any other provision of law to the contrary, the dormi-
tory  authority  of  the state of New York is hereby authorized to issue
bonds or notes in one or more series in an  aggregate  principal  amount
not to exceed seven hundred fifty million dollars excluding bonds issued
to fund one or more debt service reserve funds, to pay costs of issuance
of  such  bonds,  and bonds or notes issued to refund or otherwise repay
such bonds or notes previously issued, for  the  purposes  of  financing
project  costs authorized under section twenty-eight hundred eighteen of
the public health law. Of such seven hundred fifty million dollars,  ten
million  dollars shall be made available to the community health centers
capital program established pursuant  to  section  twenty-eight  hundred
seventeen  of  the  public  health law; AND TEN MILLION DOLLARS SHALL BE
MADE AVAILABLE TO ACCOUNTABLE CARE ORGANIZATIONS UNDER  SUBDIVISION  SIX
OF  SECTION  TWENTY-NINE  HUNDRED NINETY-NINE-R AND SUBDIVISION SEVEN OF
SECTION TWENTY-EIGHT HUNDRED EIGHTEEN OF THE PUBLIC HEALTH LAW.
  S 5. This act shall take effect immediately; provided that the  amend-
ments to section 364-j of the social services law made by section two of
this act shall not affect the repeal of such section and shall be deemed
repealed therewith.

Co-Sponsors

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S6228A - Bill Details

Law Section:
Public Health Law
Laws Affected:
Amd Art 29-E §§2999-n - 2999-r, §2818, Pub Health L

S6228A - Bill Texts

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Relates to accountable care organizations which are certified by the department of health to provide integrated health services and reduce health care costs.

view sponsor memo
BILL NUMBER:S6228A REVISED 06/12/12

TITLE OF BILL:
An act
to amend the public health,
in relation to accountable care organizations

PURPOSE:
To regulate and promote the formation of accountable care
organizations and protect the public interest and the interests of
patients and health care providers.

SUMMARY OF PROVISIONS:
Amends Article 29-E of the Public Health Law to remove the
"demonstration" designation of the ACO program and remove the cap on
the number of certificates of authority for accountable care
organizations (ACO). The sunset of authority for the issuance of ACO
certificates is extended from December 31, 2015 to December 31, 2016.

Provides for an expedited state certificate of authority to a
federally authorized Medicare only ACO. To enable Medicare-only ACOs
to begin functioning, the law's protections of an ACO from state laws
relating to anti-trust, restraint of trade, fee-splitting, as well as
protection for peer-review activities, would be granted to
Medicare-only ACOs regardless of whether the Commissioner has made
regulations on those items. Other provisions of Article 29-E not
requiring rulemaking would immediately apply to Medicare-only ACOs,
including section 2999-g, subdiv. 7, which clarifies that the
provision of services by an ACO be construed as the practice of a
profession under title 8 of the Education Law.

Requires that an ACO shall have a governance system, modeled on the
federal ACO governance regulations, that represents the participating
health care providers and patients.

Requires the commissioner to provide public disclosure of additional
statistical data relating to services, performance, quality and
payment measures.

The ACO shall use best efforts to include federally-qualified health
centers that are willing and available to join the ACO on reasonable
terms.

An ACO may seek to focus on providing health care services to patients
with one or more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO.

An ACO shall not, by incentives or otherwise, discourage a health care
provider from providing or an enrollee or patient from seeking
appropriate health care services.

An ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

Patient, and health care provider participation in an ACO shall be on
a voluntary basis.

Authorizes the commissioner to seek federal grants, approvals and
waivers to facilitate the development of ACOs, and requires detailed
disclosure of such applications to the legislature.

Allows a third-party payer to offer incentives for consumers to
participate in an ACO and prohibits discriminating against a consumer
for participating.

An ACO may seek to focus on providing health care services to patients
with one of more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO. An ACO shall not, by incentives or
otherwise, discourage a health care provider from providing or an
enrollee or patient from seeking appropriate health care services. An
ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

The bill amends section 2818 of the Public Health Law to allow HEAL-NY
funding for allocation by the commissioner in relation to the
development of ACOs without competitive bid.

DOH would have authority to provide technical assistance to health
care providers and consumer assistance in a program, and to provide
assistance to the establishment of programs.

A workgroup will consider how to include ACOs in Medicaid managed care
and other Medicaid care management programs.

JUSTIFICATION:
In 2011 the Legislature established a demonstration program for
establishing accountable care organizations. ACO legislation was
needed first to provide a legal "safe harbor" for payers and
providers to come together without violating anti-trust and other
laws. Second, Medicaid and other payers need legal authority to
participate in new payment methodologies with ACOs.

However, the third, and perhaps most important need, to protect the
rights and interests of patients, health care providers, and the
general public, was only partly addressed. For this reason, and

because of the newness of the ACO concept, the law allowed DOH to
certify only 7 ACOs.

Since the passage of the demonstration program it has become clear
that the limitation on the number of allowed ACOs is limiting the
ability of New York organizations to apply for federal ACO designation.
The bill provides a more complete legal structure for ACOs.
Strengthening protections for patients and providers goes hand in
hand with the removal of the limit on the number of ACOS that may be
authorized.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6228--A

                            I N  S E N A T E

                            January 13, 2012
                               ___________

Introduced  by Sens. HANNON, GOLDEN, JOHNSON, LARKIN, MARTINS, McDONALD,
  RANZENHOFER -- read twice and ordered printed, and when printed to  be
  committed  to  the  Committee  on Health -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend  the  public  health, in relation to accountable care
  organizations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Article 29-E of the public health law, as added by section
66 of part H of chapter 59 of the laws of 2011, is amended  to  read  as
follows:
                              ARTICLE 29-E
         ACCOUNTABLE CARE ORGANIZATIONS [DEMONSTRATION PROGRAM]
Section 2999-n. Accountable care organizations; findings; purpose.
        2999-o. Definitions.
        2999-p. Establishment of [ACO demonstration program] ACOS.
        2999-q. Accountable care organizations; requirements.
        2999-r. Other laws.
  S  2999-n.  Accountable  care  organizations;  findings; purpose. [The
legislature intends to test the ability of  accountable  care  organiza-
tions  to  assume a role in delivering an array of health care services,
from primary and preventive care through acute  inpatient  hospital  and
post-hospital care.] The legislature finds that the formation and opera-
tion  of  accountable care organizations under this article, and subject
to appropriate regulation, can be consistent with the purposes of feder-
al and state anti-trust, anti-referral, and  other  statutes,  including
reducing  over-utilization  and expenditures. The legislature finds that
the development of accountable care  organizations  under  this  article
will  reduce  health  care costs, promote effective allocation of health
care resources, and enhance the  quality  and  accessibility  of  health
care.  The  legislature  finds that this article is necessary to promote
the formation of accountable care organizations and protect  the  public
interest and the interests of patients and health care providers.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13268-08-2

S. 6228--A                          2

  S  2999-o.  Definitions.  As used in this article, the following terms
shall have the following meanings, unless the context  clearly  requires
otherwise:
  1.  "Accountable  care organization" or "ACO" means an organization of
clinically integrated health care providers certified by the commission-
er under this article.
  2. "ACO PARTICIPANT" OR "PARTICIPANT" MEANS  A  HEALTH  CARE  PROVIDER
THAT IS ONE OF THE HEALTH CARE PROVIDERS THAT COMPRISE THE ACO.
  3.  Certificate  of authority" or "certificate" means a certificate of
authority issued by the commissioner under this article.
  [3.] 4. "CMS" MEANS THE FEDERAL  CENTERS  FOR  MEDICARE  AND  MEDICAID
SERVICES.
  5. "CMS REGULATIONS" MEANS APPLICABLE FEDERAL LAWS AND CMS REGULATIONS
AND POLICIES.
  6.  "Health  care  provider"  includes but is not limited to an entity
licensed or certified under article twenty-eight or thirty-six  of  this
chapter;  an entity licensed or certified under article sixteen, thirty-
one or thirty-two of the mental hygiene law; or a  health  care  practi-
tioner licensed or certified under title eight of the education law or a
lawful  combination  of  such  health  care  practitioners; and may also
include, to the extent provided by regulation of the commissioner, other
entities that provide  technical  assistance,  information  systems  and
services,  care coordination and other services to health care providers
and patients participating in an ACO.
  [4.] 7. "MEDICARE-ONLY ACO" MEANS  AN  ACO  ISSUED  A  CERTIFICATE  OF
AUTHORITY  UNDER SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-
NINE-P OF THIS ARTICLE.
  8. "Primary care" means the health care  fields  of  family  practice,
general pediatrics, primary care internal medicine, primary care obstet-
rics, or primary care gynecology, without regard to board certification,
provided by a health care provider acting within his, her, or its lawful
scope of practice.
  [5.]  9. "Third-party health care payer" has its ordinary meanings and
may include any entities provided for by regulation of the commissioner,
which may include an entity such as a pharmacy benefits manager,  fiscal
administrator,  or administrative services provider that participates in
the administration of a third-party health care payer system.
  [6. Any references to the "department of financial services"  and  the
"superintendent of financial services" in this article shall mean, prior
to  October third, two thousand eleven, respectively, the "department of
insurance" and the "superintendent of insurance."]
  S 2999-p. Establishment of [ACO demonstration  program]  ACOS.  1.  An
accountable  care  organization:  (a)  is  an organization of clinically
integrated health care providers that work together to provide,  manage,
and  coordinate health care (including primary care) for a defined popu-
lation; with a mechanism for shared governance; the ability  to  negoti-
ate, receive, and distribute payments; and accountability for the quali-
ty,  cost,  and  delivery  of  health  care  to  the  ACO's patients; in
accordance with this article; and (b) has been issued a  certificate  of
authority by the commissioner under this article.
  2.  The  commissioner shall establish a [demonstration] program within
the department to [test the ability] PROMOTE AND  REGULATE  THE  USE  of
ACOs  to  deliver  an  array  of health care services for the purpose of
improving the  quality,  coordination  and  accountability  of  services
provided to patients in New York.

S. 6228--A                          3

  3.  The commissioner may issue a certificate of authority to an entity
that meets conditions for ACO certification as set forth in  regulations
[promulgated]  MADE  by the commissioner pursuant to section twenty-nine
hundred ninety-nine-q of this article. The commissioner shall not [issue
more  than  seven  certificates under this article, and shall not] issue
any new certificate under this article after December thirty-first,  two
thousand [fifteen] SIXTEEN.
  4.  (A) NOTWITHSTANDING SUBDIVISION THREE OF THIS SECTION, THE COMMIS-
SIONER SHALL ISSUE A CERTIFICATE OF AUTHORITY AS A MEDICARE-ONLY ACO  TO
AN ENTITY AUTHORIZED BY CMS TO BE AN ACCOUNTABLE CARE ORGANIZATION UNDER
THE   MEDICARE   PROGRAM,   UPON   RECEIVING  AN  APPLICATION  TO  BE  A
MEDICARE-ONLY ACO FROM THE ENTITY  DOCUMENTING  ITS  STATUS  UNDER  THIS
SUBDIVISION.  A  CERTIFICATE  OF  AUTHORITY UNDER THIS SUBDIVISION SHALL
ONLY APPLY TO THE MEDICARE-ONLY ACO'S ACTIONS IN  RELATION  TO  MEDICARE
BENEFICIARIES UNDER ITS AUTHORIZATION FROM CMS.
  (B) TO THE EXTENT CONSISTENT WITH CMS REGULATIONS, A MEDICARE-ONLY ACO
SHALL BE SUBJECT TO:
  (I)  SUBDIVISIONS  ONE,  TWO  AND THREE OF SECTION TWENTY-NINE HUNDRED
NINETY-NINE-R OF THIS ARTICLE, WITHOUT REGARD TO WHETHER THE COMMISSION-
ER HAS MADE REGULATIONS UNDER THIS ARTICLE; AND
  (II) OTHER PROVISIONS OF  THIS  ARTICLE  TO  THE  EXTENT  SPECIFICALLY
PROVIDED  BY  THE COMMISSIONER IN REGULATIONS CONSISTENT WITH THIS ARTI-
CLE.
  5. The commissioner may limit, suspend, or terminate a certificate  of
authority if an ACO is not operating in accordance with this article.
  [5.]  6.  The commissioner is authorized to seek federal approvals and
waivers to implement this article, including but not  limited  to  those
approvals  or  waivers  necessary  to  obtain  federal financial partic-
ipation.
  S 2999-q. Accountable care organizations; requirements. 1. The commis-
sioner shall [promulgate] MAKE  regulations  establishing  criteria  for
certificates   of  authority,  quality  standards  for  ACOs,  reporting
requirements and other matters deemed to be appropriate and necessary in
the operation and evaluation of [the demonstration program]  ACOS  UNDER
THIS ARTICLE. In [promulgating] MAKING such regulations, the commission-
er  shall  consult with the superintendent of financial services, health
care providers, third-party health care payers,  advocates  representing
patients,  and  other  appropriate  parties.  SUCH  REGULATIONS SHALL BE
CONSISTENT, TO THE EXTENT PRACTICAL AND CONSISTENT  WITH  THIS  ARTICLE,
WITH  CMS REGULATIONS FOR ACCOUNTABLE CARE ORGANIZATIONS UNDER THE MEDI-
CARE PROGRAM.
  2. Such regulations may, and shall as necessary for purposes  of  this
article, address matters including but not limited to:
  (a)  The  governance,  leadership  and management structure of the ACO
THAT REASONABLY AND EQUITABLY REPRESENTS THE ACO'S PARTICIPANTS AND  THE
ACO'S  PATIENTS,  including the manner in which clinical and administra-
tive systems and clinical participation will be managed;
  (b) Definition of the population proposed to be  served  by  the  ACO,
which  may  include reference to a geographical area and patient charac-
teristics;
  (c) The character, competence and fiscal responsibility and  soundness
of an ACO and its principals, if and to the extent deemed appropriate by
the commissioner;
  (d)  The  adequacy  of  an  ACO's network of participating health care
providers, including primary care health care providers;

S. 6228--A                          4

  (e) Mechanisms by which an ACO will provide,  manage,  and  coordinate
quality health care for its patients [and provide] INCLUDING WHERE PRAC-
TICABLE  ELEVATING THE SERVICES OF PRIMARY CARE HEALTH CARE PROVIDERS TO
MEET PATIENT-CENTERED MEDICAL HOME STANDARDS, COORDINATING SERVICES  FOR
COMPLEX  HIGH-NEED PATIENTS, AND PROVIDING access to health care provid-
ers that are not participants in the ACO;
  (f) Mechanisms by which the ACO shall receive and distribute  payments
to  its participating health care providers, which may include incentive
payments (WHICH MAY INCLUDE MEDICAL HOME  PAYMENTS)  or  mechanisms  for
pooling  payments  received  by participating health care providers from
third-party payers and patients;
  (g) Mechanisms and criteria for accepting  health  care  providers  to
participate  in  the  ACO  that  are related to the needs of the patient
population to be served and needs and purposes of the ACO, and  prevent-
ing unreasonable discrimination;
  (h)  Mechanisms  for  quality  assurance  and grievance procedures for
patients or health care providers where appropriate, AND PROCEDURES  FOR
REVIEWING AND APPEALING PATIENT CARE DECISIONS;
  (i)  Mechanisms  that  promote  evidence-based  health  care,  patient
engagement, coordination of care, electronic health  records,  including
participation  in  health  information  exchanges,  [and] other enabling
technologies  AND  INTEGRATED,  EFFICIENT  AND  EFFECTIVE  HEALTH   CARE
SERVICES;
  (j) Performance standards for, and measures to assess, the quality and
utilization of care provided by an ACO;
  (k)  Appropriate  requirements for ACOs to promote compliance with the
purposes of this article;
  (l) Posting on the department's website information  about  ACOs  that
would be useful to health care providers and patients, INCLUDING SIMILAR
METRICS  AS  THE  COMMISSIONER PUBLISHES FOR OTHER ORGANIZATIONS SUCH AS
MEDICAID MANAGED CARE PROVIDERS UNDER SECTION THREE HUNDRED SIXTY-FOUR-J
OF THE SOCIAL SERVICES LAW AND HEALTH HOMES UNDER SECTION THREE  HUNDRED
SIXTY-FIVE-L OF THE SOCIAL SERVICES LAW;
  (m)  Requirements  for  the submission of information and data by ACOs
and their participating and affiliated health care providers  as  neces-
sary  for  the  evaluation of the success of [the demonstration program]
ACOS;
  (n) Protection of patient rights as appropriate;
  (o) The impact of the establishment and  operation  of  an  ACO  [on],
INCLUDING PROVIDING THAT IT SHALL NOT DIMINISH access to any health care
service FOR THE POPULATION SERVED AND in the area served; and
  (p) Establishment of standards, as appropriate, to promote the ability
of an ACO to participate in applicable federal programs for ACOs.
  3.  (A)  THE  ACO  SHALL  PROVIDE  FOR MEANINGFUL PARTICIPATION IN THE
COMPOSITION AND CONTROL OF THE ACO'S GOVERNING BODY FOR ACO PARTICIPANTS
OR THEIR DESIGNATED REPRESENTATIVES.
  (B) THE ACO GOVERNING BODY SHALL INCLUDE AT LEAST  ONE  REPRESENTATIVE
OF  EACH  OF  THE  FOLLOWING  GROUPS: (I) RECIPIENTS OF MEDICAID, FAMILY
HEALTH PLUS, OR CHILD HEALTH PLUS; (II) PERSONS WITH OTHER HEALTH COVER-
AGE; AND (III) PERSONS WHO DO NOT HAVE HEALTH COVERAGE.  SUCH  REPRESEN-
TATIVES SHALL HAVE NO CONFLICT OF INTEREST WITH THE ACO AND NO IMMEDIATE
FAMILY MEMBER WITH A CONFLICT OF INTEREST WITH THE ACO.
  (C)  AT LEAST SEVENTY-FIVE PERCENT CONTROL OF THE ACO'S GOVERNING BODY
SHALL BE HELD BY ACO PARTICIPANTS.

S. 6228--A                          5

  (D) MEMBERS OF THE ACO GOVERNING BODY SHALL HAVE A FIDUCIARY RELATION-
SHIP WITH THE ACO AND SHALL BE SUBJECT TO CONFLICT OF INTEREST  REQUIRE-
MENTS ADOPTED BY THE ACO AND IN REGULATIONS OF THE COMMISSIONER.
  (E)  THE ACO'S FINANCES, INCLUDING DIVIDENDS AND OTHER RETURN ON CAPI-
TAL, DEBT STRUCTURE, EXECUTIVE COMPENSATION, AND ACO PARTICIPANT COMPEN-
SATION, SHALL BE ARRANGED AND CONDUCTED TO MAXIMIZE THE  ACHIEVEMENT  OF
THE PURPOSES OF THIS ARTICLE.
  4.  (A) AN ACO SHALL USE ITS BEST EFFORTS TO INCLUDE AMONG ITS PARTIC-
IPANTS, ON REASONABLE  TERMS  AND  CONDITIONS,  ANY  FEDERALLY-QUALIFIED
HEALTH  CENTER  THAT  IS WILLING TO BE A PARTICIPANT AND THAT SERVES THE
AREA AND POPULATION SERVED BY THE ACO.
  (B) AN ACO MAY SEEK TO FOCUS ON  PROVIDING  HEALTH  CARE  SERVICES  TO
PATIENTS  WITH ONE OR MORE CHRONIC CONDITIONS OR SPECIAL NEEDS. HOWEVER,
AN ACO MAY NOT OTHERWISE, ON THE BASIS OF A PERSON'S  MEDICAL  OR  DEMO-
GRAPHIC  CHARACTERISTICS,  DISCRIMINATE  FOR OR AGAINST OR DISCOURAGE OR
ENCOURAGE ANY PERSON OR PERSON WITH RESPECT TO ENROLLING OR  PARTICIPAT-
ING IN THE ACO.
  (C)  AN ACO SHALL NOT, BY INCENTIVES OR OTHERWISE, DISCOURAGE A HEALTH
CARE PROVIDER FROM PROVIDING OR AN  ENROLLEE  OR  PATIENT  FROM  SEEKING
APPROPRIATE HEALTH CARE SERVICES.
  (D) AN ACO SHALL NOT DISCRIMINATE AGAINST OR DISADVANTAGE A PATIENT OR
PATIENT'S REPRESENTATIVE FOR THE EXERCISE OF PATIENT AUTONOMY.
  (E) AN ACO MAY NOT LIMIT OR RESTRICT BENEFICIARIES TO USE OF PROVIDERS
CONTRACTED  OR AFFILIATED WITH THE ACO. AN ACO MAY NOT REQUIRE A PATIENT
TO OBTAIN THE PRIOR APPROVAL, FROM A PRIMARY CARE GATEKEEPER  OR  OTHER-
WISE,  BEFORE  UTILIZING THE SERVICES OF OTHER PROVIDERS. AN ACO MAY NOT
MAKE ADVERSE DETERMINATIONS AS DEFINED IN  ARTICLE  FORTY-NINE  OF  THIS
CHAPTER.
  5.    AN  ACO  MAY  PROVIDE  CARE  COORDINATION  FOR ITS PARTICIPATING
PATIENTS, WHICH (A) SHALL INCLUDE BUT NOT BE LIMITED TO MANAGING, REFER-
RING TO, LOCATING, COORDINATING, AND MONITORING HEALTH CARE SERVICES FOR
THE MEMBER TO ASSURE THAT ALL MEDICALLY NECESSARY HEALTH  CARE  SERVICES
ARE MADE AVAILABLE TO AND ARE EFFECTIVELY USED BY THE MEMBER IN A TIMELY
MANNER,  CONSISTENT  WITH PATIENT AUTONOMY; AND (B) IS NOT A REQUIREMENT
FOR PRIOR AUTHORIZATION FOR HEALTH CARE SERVICES, AND REFERRAL SHALL NOT
BE REQUIRED FOR A MEMBER TO RECEIVE A HEALTH CARE SERVICE.
  6. (a) Subject to regulations of the  commissioner:  (i)  an  ACO  may
enter  into arrangements with one or more third-party health care payers
to establish payment methodologies for  health  care  services  for  the
third-party  health  care  payer's  enrollees provided by the ACO or for
which the ACO is responsible, such as  full  or  partial  capitation  or
other arrangements; (ii) such arrangements may include provision for the
ACO to receive and distribute payments to the ACO's participating health
care  providers,  including  incentive  payments and payments for health
care services from third-party health  care  payers  and  patients;  and
(iii)  an  ACO  may  include mechanisms for pooling payments received by
participating  health  care  providers  from  third-party   payers   and
patients.
  (b)  Subject  to regulations of the commissioner, the commissioner, in
consultation with the superintendent of financial services, may  author-
ize  a third-party health care payer to participate in payment methodol-
ogies with an ACO under this subdivision, notwithstanding  any  contrary
provision  of  this chapter, the insurance law, the social services law,
or the elder law, on finding that the payment methodology is  consistent
with the purposes of this article.

S. 6228--A                          6

  [4.]  (C)  AN ACO MAY CONTRACT WITH A THIRD-PARTY HEALTH CARE PAYER TO
SERVE AS ALL OR PART OF THE THIRD-PARTY  HEALTH  CARE  PAYER'S  PROVIDER
NETWORK  OR CARE COORDINATION AGENT, PROVIDED IN THAT CASE THE ACO SHALL
BE SUBJECT TO ALL PROVISIONS OF THIS CHAPTER OR THE INSURANCE LAW  WHICH
ARE  APPLICABLE  TO  THE PROVIDER NETWORK OF THE THIRD-PARTY HEALTH CARE
PAYER.
  7. The provision of health care services directly or indirectly by  an
ACO  through  health care providers shall not be considered the practice
of a profession under title eight of the education law by the ACO.
  S 2999-r. Other laws. 1. (a) It is the policy of the state  to  permit
and  encourage  cooperative,  collaborative and integrative arrangements
among third-party health care payers and health care providers who might
otherwise be competitors under the active supervision of the commission-
er. To the extent that it is necessary to  accomplish  the  purposes  of
this  article,  competition  may be supplanted and the state may provide
state action immunity under state and federal antitrust laws  to  payors
and health care providers.
  (b)  The  commissioner  [may]  SHALL  engage  in  state supervision to
promote state action immunity under state and federal antitrust laws and
may inspect, require, or request additional documentation and take other
actions under this article to verify and make sure that this article  is
implemented in accordance with its intent and purpose.
  2.  With  respect  to  the  planning, implementation, and operation of
ACOs, the commissioner, by regulation, [may] SHALL specifically  deline-
ate  safe harbors that exempt ACOs from the application of the following
statutes:
  (a) article  twenty-two  of  the  general  business  law  relating  to
arrangements and agreements in restraint of trade;
  (b)  article one hundred thirty-one-A of the education law relating to
fee-splitting arrangements; and
  (c) title two-D of article two of this chapter relating to health care
practitioner referrals.
  3. For the purposes of this article, an ACO shall be deemed  to  be  a
hospital  for  purposes of sections twenty-eight hundred five-j, twenty-
eight hundred  five-k,  twenty-eight  hundred  five-l  and  twenty-eight
hundred  five-m  of  this  chapter  and  subdivisions  three and five of
section sixty-five hundred twenty-seven of the education law.
  4.  THE COMMISSIONER IS AUTHORIZED TO SEEK FEDERAL GRANTS,  APPROVALS,
AND  WAIVERS  TO  IMPLEMENT  THIS  ARTICLE,  INCLUDING FEDERAL FINANCIAL
PARTICIPATION UNDER  PUBLIC  HEALTH  COVERAGE.  THE  COMMISSIONER  SHALL
PROVIDE  COPIES  OF  APPLICATIONS AND OTHER DOCUMENTS, INCLUDING DRAFTS,
SUBMITTED  TO  THE  FEDERAL  GOVERNMENT  SEEKING  SUCH  FEDERAL  GRANTS,
APPROVALS,  AND  WAIVERS  TO THE CHAIRS OF THE SENATE FINANCE COMMITTEE,
THE ASSEMBLY WAYS AND MEANS  COMMITTEE,  AND  THE  SENATE  AND  ASSEMBLY
HEALTH  COMMITTEES  SIMULTANEOUSLY  WITH THEIR SUBMISSION TO THE FEDERAL
GOVERNMENT.
  5. THE COMMISSIONER MAY DIRECTLY, OR BY CONTRACT  WITH  NOT-FOR-PROFIT
ORGANIZATIONS, PROVIDE:
  (A)  CONSUMER  ASSISTANCE  TO  PATIENTS SERVED BY AN ACO AS TO MATTERS
RELATING TO ACOS;
  (B) TECHNICAL AND OTHER ASSISTANCE TO HEALTH  CARE  PROVIDERS  PARTIC-
IPATING IN AN ACO AS TO MATTERS RELATING TO THE ACO;
  (C)  ASSISTANCE  TO  ACOS TO PROMOTE THEIR FORMATION AND IMPROVE THEIR
OPERATION, INCLUDING ASSISTANCE UNDER SECTION TWENTY-EIGHT HUNDRED EIGH-
TEEN OF THIS CHAPTER; AND

S. 6228--A                          7

  (D) INFORMATION SHARING AND OTHER ASSISTANCE AMONG ACOS TO IMPROVE THE
OPERATION OF ACOS.
  S 2. The commissioner of health shall convene a workgroup to develop a
proposal  whereby an ACO may serve, in place of a managed care plan: (a)
Medicaid enrollees otherwise required to participate  in  managed  care,
care  management, or care coordination under section 364-j of the social
services law, section 4403-f of the public health law, or other law; and
(b) enrollees in family health plus  under  section  369-ee  or  section
369-ff  of  the  social services law and the child health insurance plan
under title 1-A of article 25 of the public health  law.  The  workgroup
shall  include,  but  not be limited to, representatives of: accountable
care organizations or entities  seeking  to  form  an  accountable  care
organization  under  article  29-E of the public health law; health care
providers serving Medicaid enrollees; Medicaid, family health plus,  and
child  health insurance plan enrollees; and the senate and the assembly.
The workgroup shall report its recommendations for regulatory or  statu-
tory actions to the governor, the commissioner of health, and the legis-
lature.
  S  3. Section 2818 of the public health law is amended by adding a new
subdivision 7 to read as follows:
  7. NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION,  SECTIONS
ONE HUNDRED TWELVE AND ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW,
OR  ANY  OTHER INCONSISTENT PROVISION OF LAW, OF THE FUNDS AVAILABLE FOR
EXPENDITURE PURSUANT TO THIS SECTION, THE COMMISSIONER MAY ALLOCATE  AND
DISTRIBUTE,  WITHOUT  A COMPETITIVE BID OR REQUEST FOR PROPOSAL PROCESS,
GRANTS TO ACCOUNTABLE CARE ORGANIZATIONS UNDER ARTICLE TWENTY-NINE-E  OF
THIS  CHAPTER FOR THE PURPOSE OF PROMOTING THEIR FORMATION AND IMPROVING
THEIR OPERATION.   CONSIDERATION RELIED  UPON  BY  THE  COMMISSIONER  IN
DETERMINING  THE  ALLOCATION  AND  DISTRIBUTION  OF  THESE  FUNDS  SHALL
INCLUDE, BUT NOT BE LIMITED  TO,  THE  NEED  FOR  AND  CAPACITY  OF  THE
ACCOUNTABLE  CARE  ORGANIZATION  TO  ACCOMPLISH  THE PURPOSES OF ARTICLE
TWENTY-NINE-E OF THIS CHAPTER IN THE AREA TO BE SERVED.
  S 4. This act shall take effect immediately.

Co-Sponsors

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S6228B (ACTIVE) - Bill Details

Law Section:
Public Health Law
Laws Affected:
Amd Art 29-E §§2999-n - 2999-r, §2818, Pub Health L

S6228B (ACTIVE) - Bill Texts

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Relates to accountable care organizations which are certified by the department of health to provide integrated health services and reduce health care costs.

view sponsor memo
BILL NUMBER:S6228B

TITLE OF BILL:
An act
to amend the public health,
in relation to accountable care organizations

PURPOSE:
To regulate and promote the formation of accountable care
organizations and protect the public interest and the interests of
patients and health care providers.

SUMMARY OF PROVISIONS:
Amends Article 29-E of the Public Health Law to remove the
"demonstration" designation of the ACO program and remove the cap on
the number of certificates of authority for accountable care
organizations (ACO). The sunset of authority for the issuance of ACO
certificates is extended from December 31, 2015 to December 31, 2016.

Provides for an expedited state certificate of authority to a
federally authorized Medicare only ACO. To enable Medicare-only ACOs
to begin functioning, the law's protections of an ACO from state laws
relating to anti-trust, restraint of trade, fee-splitting, as well as
protection for peer-review activities, would be granted to
Medicare-only ACOs regardless of whether the Commissioner has made
regulations on those items, including section 2999-g, subdiv. 7,
which clarifies that the provision of services by an ACO be construed
as the practice of a profession under title 8 of the Education Law.

Requires that an ACO shall have a governance system, modeled on the
federal ACO governance regulations, that represents the participating
health care providers and patients.

Requires the commissioner to provide public disclosure of additional
statistical data relating to services, performance, quality and
payment measures.

The ACO shall use best efforts to include federally-qualified health
centers that are willing and available to join the ACO on reasonable
terms.

An ACO may seek to focus on providing health care services to patients
with one or more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO.

An ACO shall not, by incentives or otherwise, discourage a health care
provider from providing or an enrollee or patient from seeking
appropriate health care services.

An ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.


Patient, and health care provider participation in an ACO shall be on
a voluntary basis.

Authorizes the commissioner to seek federal grants, approvals and
waivers to facilitate the development of ACOs, and requires detailed
disclosure of such applications to the legislature.

Allows a third-party payer to offer incentives for consumers to
participate in an ACO and prohibits discriminating against a consumer
for participating.

An ACO may seek to focus on providing health care services to patients
with one or more chronic conditions or special needs. However, an ACO
may not otherwise, on the basis of a person's medical or demographic
characteristics, discriminate for or against or discourage or
encourage any person or persons with respect to enrolling or
participating in the ACO. An ACO shall not, by incentives or
otherwise, discourage a health care provider from providing or an
enrollee or patient from seeking appropriate health care services. An
ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

The bill amends section 2818 of the Public Health Law to allow HEAL-NY
funding for allocation by the commissioner in relation to the
development of ACOs without competitive bid.

DOH would have authority to provide technical assistance to health
care providers and consumer assistance in a program, and to provide
assistance to the establishment of programs.

A workgroup will consider how to include ACOs in Medicaid managed care
and other Medicaid care management programs.

JUSTIFICATION:
In 2011 the Legislature established a demonstration program for
establishing accountable care organizations. ACO legislation was
needed first to provide a legal "safe harbor" for payers and
providers to come together without violating anti-trust and other
laws. Second, Medicaid and other payers need legal authority to
participate in new payment methodologies with ACOs.

However, the third, and perhaps most important need, to protect the
rights and interests of patients, health care providers, and the
general public, was only partly addressed. For this reason, and
because of the newness of the ACO concept, the law allowed DOH to
certify only 7 ACOs.

Since the passage of the demonstration program it has become clear
that the limitation on the number of allowed ACOs is limiting the
ability of New York organizations to apply for federal ACO designation.
The bill provides a more complete legal structure for ACOs.
Strengthening protections for patients and providers goes hand in
hand with the removal of the limit on the number of ACOS that may be
authorized.

LEGISLATIVE HISTORY:
New bill.


FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6228--B

                            I N  S E N A T E

                            January 13, 2012
                               ___________

Introduced  by Sens. HANNON, GOLDEN, JOHNSON, LARKIN, MARTINS, McDONALD,
  RANZENHOFER -- read twice and ordered printed, and when printed to  be
  committed  to  the  Committee  on Health -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  reported  favorably  from said committee and committed to the
  Committee on Finance -- committee discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to amend the public health law, in relation to accountable care
  organizations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Article 29-E of the public health law, as added by section
66 of part H of chapter 59 of the laws of 2011, is amended  to  read  as
follows:
                              ARTICLE 29-E
         ACCOUNTABLE CARE ORGANIZATIONS [DEMONSTRATION PROGRAM]
Section 2999-n. Accountable care organizations; findings; purpose.
        2999-o. Definitions.
        2999-p. Establishment of [ACO demonstration program] ACOS.
        2999-q. Accountable care organizations; requirements.
        2999-r. Other laws.
  S  2999-n.  Accountable  care  organizations;  findings; purpose. [The
legislature intends to test the ability of  accountable  care  organiza-
tions  to  assume a role in delivering an array of health care services,
from primary and preventive care through acute  inpatient  hospital  and
post-hospital care.] The legislature finds that the formation and opera-
tion  of  accountable care organizations under this article, and subject
to appropriate regulation, can be consistent with the purposes of feder-
al and state anti-trust, anti-referral, and  other  statutes,  including
reducing  over-utilization  and expenditures. The legislature finds that
the development of accountable care  organizations  under  this  article
will  reduce  health  care costs, promote effective allocation of health
care resources, and enhance the  quality  and  accessibility  of  health
care.  The  legislature  finds that this article is necessary to promote

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13268-12-2

S. 6228--B                          2

the formation of accountable care organizations and protect  the  public
interest and the interests of patients and health care providers.
  S  2999-o.  Definitions.  As used in this article, the following terms
shall have the following meanings, unless the context  clearly  requires
otherwise:
  1.  "Accountable  care organization" or "ACO" means an organization of
clinically integrated health care providers certified by the commission-
er under this article.
  2. "ACO PARTICIPANT" OR "PARTICIPANT" MEANS  A  HEALTH  CARE  PROVIDER
THAT IS ONE OF THE HEALTH CARE PROVIDERS THAT COMPRISE THE ACO.
  3.  Certificate  of authority" or "certificate" means a certificate of
authority issued by the commissioner under this article.
  [3.] 4. "CMS" MEANS THE FEDERAL  CENTERS  FOR  MEDICARE  AND  MEDICAID
SERVICES.
  5. "CMS REGULATIONS" MEANS APPLICABLE FEDERAL LAWS AND CMS REGULATIONS
AND POLICIES.
  6.  "Health  care  provider"  includes but is not limited to an entity
licensed or certified under article twenty-eight or thirty-six  of  this
chapter;  an entity licensed or certified under article sixteen, thirty-
one or thirty-two of the mental hygiene law; or a  health  care  practi-
tioner licensed or certified under title eight of the education law or a
lawful  combination  of  such  health  care  practitioners; and may also
include, to the extent provided by regulation of the commissioner, other
entities that provide  technical  assistance,  information  systems  and
services,  care coordination and other services to health care providers
and patients participating in an ACO.
  [4.] 7. "MEDICARE-ONLY ACO" MEANS  AN  ACO  ISSUED  A  CERTIFICATE  OF
AUTHORITY  UNDER SUBDIVISION FOUR OF SECTION TWENTY-NINE HUNDRED NINETY-
NINE-P OF THIS ARTICLE.
  8. "Primary care" means the health care  fields  of  family  practice,
general pediatrics, primary care internal medicine, primary care obstet-
rics, or primary care gynecology, without regard to board certification,
provided by a health care provider acting within his, her, or its lawful
scope of practice.
  [5.]  9. "Third-party health care payer" has its ordinary meanings and
may include any entities provided for by regulation of the commissioner,
which may include an entity such as a pharmacy benefits manager,  fiscal
administrator,  or administrative services provider that participates in
the administration of a third-party health care payer system.
  [6. Any references to the "department of financial services"  and  the
"superintendent of financial services" in this article shall mean, prior
to  October third, two thousand eleven, respectively, the "department of
insurance" and the "superintendent of insurance."]
  S 2999-p. Establishment of [ACO demonstration  program]  ACOS.  1.  An
accountable  care  organization:  (a)  is  an organization of clinically
integrated health care providers that work together to provide,  manage,
and  coordinate health care (including primary care) for a defined popu-
lation; with a mechanism for shared governance; the ability  to  negoti-
ate, receive, and distribute payments; and accountability for the quali-
ty,  cost,  and  delivery  of  health  care  to  the  ACO's patients; in
accordance with this article; and (b) has been issued a  certificate  of
authority by the commissioner under this article.
  2.  The  commissioner shall establish a [demonstration] program within
the department to [test the ability] PROMOTE AND  REGULATE  THE  USE  of
ACOs  to  deliver  an  array  of health care services for the purpose of

S. 6228--B                          3

improving the  quality,  coordination  and  accountability  of  services
provided to patients in New York.
  3.  The commissioner may issue a certificate of authority to an entity
that meets conditions for ACO certification as set forth in  regulations
[promulgated]  MADE  by the commissioner pursuant to section twenty-nine
hundred ninety-nine-q of this article. The commissioner shall not [issue
more than seven certificates under this article, and  shall  not]  issue
any  new certificate under this article after December thirty-first, two
thousand [fifteen] SIXTEEN.
  4. (A) NOTWITHSTANDING SUBDIVISION THREE OF THIS SECTION, THE  COMMIS-
SIONER  SHALL ISSUE A CERTIFICATE OF AUTHORITY AS A MEDICARE-ONLY ACO TO
AN ENTITY AUTHORIZED BY CMS TO BE AN ACCOUNTABLE CARE ORGANIZATION UNDER
THE  MEDICARE  PROGRAM,  UPON  RECEIVING  AN   APPLICATION   TO   BE   A
MEDICARE-ONLY  ACO  FROM  THE  ENTITY  DOCUMENTING ITS STATUS UNDER THIS
SUBDIVISION. A CERTIFICATE OF AUTHORITY  UNDER  THIS  SUBDIVISION  SHALL
ONLY  APPLY  TO  THE MEDICARE-ONLY ACO'S ACTIONS IN RELATION TO MEDICARE
BENEFICIARIES UNDER ITS AUTHORIZATION FROM CMS.
  (B) TO THE EXTENT CONSISTENT WITH CMS REGULATIONS, A MEDICARE-ONLY ACO
SHALL BE SUBJECT TO:
  (I) SUBDIVISION SEVEN OF SECTION TWENTY-NINE HUNDRED NINETY-NINE-Q AND
SUBDIVISIONS  ONE,  TWO  AND  THREE  OF  SECTION   TWENTY-NINE   HUNDRED
NINETY-NINE-R OF THIS ARTICLE, WITHOUT REGARD TO WHETHER THE COMMISSION-
ER HAS MADE REGULATIONS UNDER THIS ARTICLE; AND
  (II)  OTHER  PROVISIONS  OF  THIS  ARTICLE  TO THE EXTENT SPECIFICALLY
PROVIDED BY THE COMMISSIONER IN REGULATIONS CONSISTENT WITH  THIS  ARTI-
CLE.
  5.  The commissioner may limit, suspend, or terminate a certificate of
authority if an ACO is not operating in accordance with this article.
  [5.] 6. The commissioner is authorized to seek federal  approvals  and
waivers  to  implement  this article, including but not limited to those
approvals or waivers  necessary  to  obtain  federal  financial  partic-
ipation.
  S 2999-q. Accountable care organizations; requirements. 1. The commis-
sioner  shall  [promulgate]  MAKE  regulations establishing criteria for
certificates  of  authority,  quality  standards  for  ACOs,   reporting
requirements and other matters deemed to be appropriate and necessary in
the  operation  and evaluation of [the demonstration program] ACOS UNDER
THIS ARTICLE. In [promulgating] MAKING such regulations, the commission-
er shall consult with the superintendent of financial  services,  health
care  providers,  third-party health care payers, advocates representing
patients, and other  appropriate  parties.  SUCH  REGULATIONS  SHALL  BE
CONSISTENT,  TO  THE  EXTENT PRACTICAL AND CONSISTENT WITH THIS ARTICLE,
WITH CMS REGULATIONS FOR ACCOUNTABLE CARE ORGANIZATIONS UNDER THE  MEDI-
CARE PROGRAM.
  2.  Such  regulations may, and shall as necessary for purposes of this
article, address matters including but not limited to:
  (a) The governance, leadership and management  structure  of  the  ACO
THAT  REASONABLY AND EQUITABLY REPRESENTS THE ACO'S PARTICIPANTS AND THE
ACO'S PATIENTS, including the manner in which clinical  and  administra-
tive systems and clinical participation will be managed;
  (b)  Definition  of  the  population proposed to be served by the ACO,
which may include reference to a geographical area and  patient  charac-
teristics;
  (c)  The character, competence and fiscal responsibility and soundness
of an ACO and its principals, if and to the extent deemed appropriate by
the commissioner;

S. 6228--B                          4

  (d) The adequacy of an ACO's  network  of  participating  health  care
providers, including primary care health care providers;
  (e)  Mechanisms  by  which an ACO will provide, manage, and coordinate
quality health care for its patients [and provide] INCLUDING WHERE PRAC-
TICABLE ELEVATING THE SERVICES OF PRIMARY CARE HEALTH CARE PROVIDERS  TO
MEET  PATIENT-CENTERED MEDICAL HOME STANDARDS, COORDINATING SERVICES FOR
COMPLEX HIGH-NEED PATIENTS, AND PROVIDING access to health care  provid-
ers that are not participants in the ACO;
  (f)  Mechanisms by which the ACO shall receive and distribute payments
to its participating health care providers, which may include  incentive
payments  (WHICH  MAY  INCLUDE  MEDICAL HOME PAYMENTS) or mechanisms for
pooling payments received by participating health  care  providers  from
third-party payers and patients;
  (g)  Mechanisms  and  criteria  for accepting health care providers to
participate in the ACO that are related to  the  needs  of  the  patient
population  to be served and needs and purposes of the ACO, and prevent-
ing unreasonable discrimination;
  (h) Mechanisms for quality  assurance  and  grievance  procedures  for
patients  or health care providers where appropriate, AND PROCEDURES FOR
REVIEWING AND APPEALING PATIENT CARE DECISIONS;
  (i)  Mechanisms  that  promote  evidence-based  health  care,  patient
engagement,  coordination  of care, electronic health records, including
participation in health  information  exchanges,  [and]  other  enabling
technologies   AND  INTEGRATED,  EFFICIENT  AND  EFFECTIVE  HEALTH  CARE
SERVICES;
  (j) Performance standards for, and measures to assess, the quality and
utilization of care provided by an ACO;
  (k) Appropriate requirements for ACOs to promote compliance  with  the
purposes of this article;
  (l)  Posting  on  the department's website information about ACOs that
would be useful to health care providers and patients, INCLUDING SIMILAR
METRICS AS THE COMMISSIONER PUBLISHES FOR OTHER  ORGANIZATIONS  SUCH  AS
MEDICAID MANAGED CARE PROVIDERS UNDER SECTION THREE HUNDRED SIXTY-FOUR-J
OF  THE SOCIAL SERVICES LAW AND HEALTH HOMES UNDER SECTION THREE HUNDRED
SIXTY-FIVE-L OF THE SOCIAL SERVICES LAW;
  (m) Requirements for the submission of information and  data  by  ACOs
and  their  participating and affiliated health care providers as neces-
sary for the evaluation of the success of  [the  demonstration  program]
ACOS;
  (n) Protection of patient rights as appropriate;
  (o)  The  impact  of  the  establishment and operation of an ACO [on],
INCLUDING PROVIDING THAT IT SHALL NOT DIMINISH access to any health care
service FOR THE POPULATION SERVED AND in the area served; and
  (p) Establishment of standards, as appropriate, to promote the ability
of an ACO to participate in applicable federal programs for ACOs.
  3. (A) THE ACO SHALL  PROVIDE  FOR  MEANINGFUL  PARTICIPATION  IN  THE
COMPOSITION AND CONTROL OF THE ACO'S GOVERNING BODY FOR ACO PARTICIPANTS
OR THEIR DESIGNATED REPRESENTATIVES.
  (B)  THE  ACO GOVERNING BODY SHALL INCLUDE AT LEAST ONE REPRESENTATIVE
OF EACH OF THE FOLLOWING GROUPS:  (I)  RECIPIENTS  OF  MEDICAID,  FAMILY
HEALTH PLUS, OR CHILD HEALTH PLUS; (II) PERSONS WITH OTHER HEALTH COVER-
AGE;  AND  (III) PERSONS WHO DO NOT HAVE HEALTH COVERAGE. SUCH REPRESEN-
TATIVES SHALL HAVE NO CONFLICT OF INTEREST WITH THE ACO AND NO IMMEDIATE
FAMILY MEMBER WITH A CONFLICT OF INTEREST WITH THE ACO.
  (C) AT LEAST SEVENTY-FIVE PERCENT CONTROL OF THE ACO'S GOVERNING  BODY
SHALL BE HELD BY ACO PARTICIPANTS.

S. 6228--B                          5

  (D) MEMBERS OF THE ACO GOVERNING BODY SHALL HAVE A FIDUCIARY RELATION-
SHIP  WITH THE ACO AND SHALL BE SUBJECT TO CONFLICT OF INTEREST REQUIRE-
MENTS ADOPTED BY THE ACO AND IN REGULATIONS OF THE COMMISSIONER.
  (E)  THE ACO'S FINANCES, INCLUDING DIVIDENDS AND OTHER RETURN ON CAPI-
TAL, DEBT STRUCTURE, EXECUTIVE COMPENSATION, AND ACO PARTICIPANT COMPEN-
SATION, SHALL BE ARRANGED AND CONDUCTED TO MAXIMIZE THE  ACHIEVEMENT  OF
THE PURPOSES OF THIS ARTICLE.
  4.  (A) AN ACO SHALL USE ITS BEST EFFORTS TO INCLUDE AMONG ITS PARTIC-
IPANTS, ON REASONABLE  TERMS  AND  CONDITIONS,  ANY  FEDERALLY-QUALIFIED
HEALTH  CENTER  THAT  IS WILLING TO BE A PARTICIPANT AND THAT SERVES THE
AREA AND POPULATION SERVED BY THE ACO.
  (B) AN ACO MAY SEEK TO FOCUS ON  PROVIDING  HEALTH  CARE  SERVICES  TO
PATIENTS  WITH ONE OR MORE CHRONIC CONDITIONS OR SPECIAL NEEDS. HOWEVER,
AN ACO MAY NOT OTHERWISE, ON THE BASIS OF A PERSON'S  MEDICAL  OR  DEMO-
GRAPHIC  CHARACTERISTICS,  DISCRIMINATE  FOR OR AGAINST OR DISCOURAGE OR
ENCOURAGE ANY PERSON OR PERSON WITH RESPECT TO ENROLLING OR  PARTICIPAT-
ING IN THE ACO.
  (C)  AN ACO SHALL NOT, BY INCENTIVES OR OTHERWISE, DISCOURAGE A HEALTH
CARE PROVIDER FROM PROVIDING OR AN  ENROLLEE  OR  PATIENT  FROM  SEEKING
APPROPRIATE HEALTH CARE SERVICES.
  (D) AN ACO SHALL NOT DISCRIMINATE AGAINST OR DISADVANTAGE A PATIENT OR
PATIENT'S REPRESENTATIVE FOR THE EXERCISE OF PATIENT AUTONOMY.
  (E) AN ACO MAY NOT LIMIT OR RESTRICT BENEFICIARIES TO USE OF PROVIDERS
CONTRACTED  OR AFFILIATED WITH THE ACO. AN ACO MAY NOT REQUIRE A PATIENT
TO OBTAIN THE PRIOR APPROVAL, FROM A PRIMARY CARE GATEKEEPER  OR  OTHER-
WISE,  BEFORE  UTILIZING THE SERVICES OF OTHER PROVIDERS. AN ACO MAY NOT
MAKE ADVERSE DETERMINATIONS AS DEFINED IN  ARTICLE  FORTY-NINE  OF  THIS
CHAPTER.
  5.    AN  ACO  MAY  PROVIDE  CARE  COORDINATION  FOR ITS PARTICIPATING
PATIENTS, WHICH (A) SHALL INCLUDE BUT NOT BE LIMITED TO MANAGING, REFER-
RING TO, LOCATING, COORDINATING, AND MONITORING HEALTH CARE SERVICES FOR
THE MEMBER TO ASSURE THAT ALL MEDICALLY NECESSARY HEALTH  CARE  SERVICES
ARE MADE AVAILABLE TO AND ARE EFFECTIVELY USED BY THE MEMBER IN A TIMELY
MANNER,  CONSISTENT  WITH PATIENT AUTONOMY; AND (B) IS NOT A REQUIREMENT
FOR PRIOR AUTHORIZATION FOR HEALTH CARE SERVICES, AND REFERRAL SHALL NOT
BE REQUIRED FOR A MEMBER TO RECEIVE A HEALTH CARE SERVICE.
  6. (a) Subject to regulations of the  commissioner:  (i)  an  ACO  may
enter  into arrangements with one or more third-party health care payers
to establish payment methodologies for  health  care  services  for  the
third-party  health  care  payer's  enrollees provided by the ACO or for
which the ACO is responsible, such as  full  or  partial  capitation  or
other arrangements; (ii) such arrangements may include provision for the
ACO to receive and distribute payments to the ACO's participating health
care  providers,  including  incentive  payments and payments for health
care services from third-party health  care  payers  and  patients;  and
(iii)  an  ACO  may  include mechanisms for pooling payments received by
participating  health  care  providers  from  third-party   payers   and
patients.
  (b)  Subject  to regulations of the commissioner, the commissioner, in
consultation with the superintendent of financial services, may  author-
ize  a third-party health care payer to participate in payment methodol-
ogies with an ACO under this subdivision, notwithstanding  any  contrary
provision  of  this chapter, the insurance law, the social services law,
or the elder law, on finding that the payment methodology is  consistent
with the purposes of this article.

S. 6228--B                          6

  [4.]  (C)  AN ACO MAY CONTRACT WITH A THIRD-PARTY HEALTH CARE PAYER TO
SERVE AS ALL OR PART OF THE THIRD-PARTY  HEALTH  CARE  PAYER'S  PROVIDER
NETWORK  OR CARE COORDINATION AGENT, PROVIDED IN THAT CASE THE ACO SHALL
BE SUBJECT TO ALL PROVISIONS OF THIS CHAPTER OR THE INSURANCE LAW  WHICH
ARE  APPLICABLE  TO  THE PROVIDER NETWORK OF THE THIRD-PARTY HEALTH CARE
PAYER.
  7. The provision of health care services directly or indirectly by  an
ACO  through  health care providers shall not be considered the practice
of a profession under title eight of the education law by the ACO.
  S 2999-r. Other laws. 1. (a) It is the policy of the state  to  permit
and  encourage  cooperative,  collaborative and integrative arrangements
among third-party health care payers and health care providers who might
otherwise be competitors under the active supervision of the commission-
er. To the extent that it is necessary to  accomplish  the  purposes  of
this  article,  competition  may be supplanted and the state may provide
state action immunity under state and federal antitrust laws  to  payors
and health care providers.
  (b)  The  commissioner  [may]  SHALL  engage  in  state supervision to
promote state action immunity under state and federal antitrust laws and
may inspect, require, or request additional documentation and take other
actions under this article to verify and make sure that this article  is
implemented in accordance with its intent and purpose.
  2.  With  respect  to  the  planning, implementation, and operation of
ACOs, the commissioner, by regulation, [may] SHALL specifically  deline-
ate  safe harbors that exempt ACOs from the application of the following
statutes:
  (a) article  twenty-two  of  the  general  business  law  relating  to
arrangements and agreements in restraint of trade;
  (b)  article one hundred thirty-one-A of the education law relating to
fee-splitting arrangements; and
  (c) title two-D of article two of this chapter relating to health care
practitioner referrals.
  3. For the purposes of this article, an ACO shall be deemed  to  be  a
hospital  for  purposes of sections twenty-eight hundred five-j, twenty-
eight hundred  five-k,  twenty-eight  hundred  five-l  and  twenty-eight
hundred  five-m  of  this  chapter  and  subdivisions  three and five of
section sixty-five hundred twenty-seven of the education law.
  4.  THE COMMISSIONER IS AUTHORIZED TO SEEK FEDERAL GRANTS,  APPROVALS,
AND  WAIVERS  TO  IMPLEMENT  THIS  ARTICLE,  INCLUDING FEDERAL FINANCIAL
PARTICIPATION UNDER  PUBLIC  HEALTH  COVERAGE.  THE  COMMISSIONER  SHALL
PROVIDE  COPIES  OF  APPLICATIONS AND OTHER DOCUMENTS, INCLUDING DRAFTS,
SUBMITTED  TO  THE  FEDERAL  GOVERNMENT  SEEKING  SUCH  FEDERAL  GRANTS,
APPROVALS,  AND  WAIVERS  TO THE CHAIRS OF THE SENATE FINANCE COMMITTEE,
THE ASSEMBLY WAYS AND MEANS  COMMITTEE,  AND  THE  SENATE  AND  ASSEMBLY
HEALTH  COMMITTEES  SIMULTANEOUSLY  WITH THEIR SUBMISSION TO THE FEDERAL
GOVERNMENT.
  5. THE COMMISSIONER MAY DIRECTLY, OR BY CONTRACT  WITH  NOT-FOR-PROFIT
ORGANIZATIONS, PROVIDE:
  (A)  CONSUMER  ASSISTANCE  TO  PATIENTS SERVED BY AN ACO AS TO MATTERS
RELATING TO ACOS;
  (B) TECHNICAL AND OTHER ASSISTANCE TO HEALTH  CARE  PROVIDERS  PARTIC-
IPATING IN AN ACO AS TO MATTERS RELATING TO THE ACO;
  (C)  ASSISTANCE  TO  ACOS TO PROMOTE THEIR FORMATION AND IMPROVE THEIR
OPERATION, INCLUDING ASSISTANCE UNDER SECTION TWENTY-EIGHT HUNDRED EIGH-
TEEN OF THIS CHAPTER; AND

S. 6228--B                          7

  (D) INFORMATION SHARING AND OTHER ASSISTANCE AMONG ACOS TO IMPROVE THE
OPERATION OF ACOS.
  S 2. The commissioner of health shall convene a workgroup to develop a
proposal  whereby an ACO may serve, in place of a managed care plan: (a)
Medicaid enrollees otherwise required to participate  in  managed  care,
care  management, or care coordination under section 364-j of the social
services law, section 4403-f of the public health law, or other law; and
(b) enrollees in family health plus  under  section  369-ee  or  section
369-ff  of  the  social services law and the child health insurance plan
under title 1-A of article 25 of the public health  law.  The  workgroup
shall  include,  but  not be limited to, representatives of: accountable
care organizations or entities  seeking  to  form  an  accountable  care
organization  under  article  29-E of the public health law; health care
providers serving Medicaid enrollees; Medicaid, family health plus,  and
child  health insurance plan enrollees; and the senate and the assembly.
The workgroup shall report its recommendations for regulatory or  statu-
tory actions to the governor, the commissioner of health, and the legis-
lature.
  S  3. Section 2818 of the public health law is amended by adding a new
subdivision 7 to read as follows:
  7. NOTWITHSTANDING SUBDIVISIONS ONE AND TWO OF THIS SECTION,  SECTIONS
ONE HUNDRED TWELVE AND ONE HUNDRED SIXTY-THREE OF THE STATE FINANCE LAW,
OR  ANY  OTHER INCONSISTENT PROVISION OF LAW, OF THE FUNDS AVAILABLE FOR
EXPENDITURE PURSUANT TO THIS SECTION, THE COMMISSIONER MAY ALLOCATE  AND
DISTRIBUTE,  WITHOUT  A COMPETITIVE BID OR REQUEST FOR PROPOSAL PROCESS,
GRANTS TO ACCOUNTABLE CARE ORGANIZATIONS UNDER ARTICLE TWENTY-NINE-E  OF
THIS  CHAPTER FOR THE PURPOSE OF PROMOTING THEIR FORMATION AND IMPROVING
THEIR OPERATION.   CONSIDERATION RELIED  UPON  BY  THE  COMMISSIONER  IN
DETERMINING  THE  ALLOCATION  AND  DISTRIBUTION  OF  THESE  FUNDS  SHALL
INCLUDE, BUT NOT BE LIMITED  TO,  THE  NEED  FOR  AND  CAPACITY  OF  THE
ACCOUNTABLE  CARE  ORGANIZATION  TO  ACCOMPLISH  THE PURPOSES OF ARTICLE
TWENTY-NINE-E OF THIS CHAPTER IN THE AREA TO BE SERVED.
  S 4. This act shall take effect immediately.

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