S T A T E O F N E W Y O R K
________________________________________________________________________
6443
I N S E N A T E
February 9, 2012
___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
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
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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13268-04-2
S. 6443 2
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 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.
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.
4. The commissioner may limit, suspend, or terminate a certificate of
authority if an ACO is not operating in accordance with this article.
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. 6443 3
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,
including the manner in which clinical and administrative 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;
(e) Mechanisms by which an ACO will provide, manage, and coordinate
quality health care for its patients and provide access to health care
providers 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 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;
(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;
(l) Posting on the department's website information about ACOs that
would be useful to health care providers and patients;
(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 access
to any health care service 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) Subject to regulations of the commissioner: (i) an ACO may
enter into arrangements with one or more third-party health care payers
S. 6443 4
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.
4. 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.
S 2. This act shall take effect immediately.
