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.
