Senate Bill S4995

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4995
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 3, 2017
                                ___________
 
 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 social services law, in relation to fiscal  interme-
   diary  certification  under  the consumer directed personal assistance
   program

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  365-f  of  the social services law is amended by
 adding two new subdivisions 4-a and 4-b to read as follows:
   4-A. FISCAL INTERMEDIARY  SERVICES.  (A)  FOR  THE  PURPOSES  OF  THIS
 SECTION:
   (I)  "FISCAL INTERMEDIARY" MEANS AN ENTITY THAT PROVIDES FISCAL INTER-
 MEDIARY SERVICES AND HAS A CONTRACT FOR PROVIDING SUCH SERVICES WITH:
   (A) A LOCAL DEPARTMENT OF SOCIAL SERVICES;
   (B) AN ORGANIZATION LICENSED UNDER ARTICLE FORTY-FOUR  OF  THE  PUBLIC
 HEALTH LAW; OR
   (C)  AN  ACCOUNTABLE CARE ORGANIZATION CERTIFIED UNDER ARTICLE TWENTY-
 NINE-E OF THE  PUBLIC  HEALTH  LAW  OR  AN  INTEGRATED  DELIVERY  SYSTEM
 COMPOSED PRIMARILY OF HEALTH CARE PROVIDERS RECOGNIZED BY THE DEPARTMENT
 AS  A PERFORMING PROVIDER SYSTEM UNDER THE DELIVERY SYSTEM REFORM INCEN-
 TIVE PAYMENT PROGRAM.
   (II)  FISCAL  INTERMEDIARY  SERVICES  SHALL  INCLUDE   THE   FOLLOWING
 SERVICES,  PERFORMED  ON BEHALF OF THE CONSUMER TO FACILITATE HIS OR HER
 ROLE AS THE EMPLOYER:
   (A) WAGE AND BENEFIT PROCESSING FOR CONSUMER DIRECTED PERSONAL ASSIST-
 ANTS;
   (B) PROCESSING ALL INCOME TAX AND OTHER REQUIRED WAGE WITHHOLDINGS;
   (C) COMPLYING WITH WORKERS' COMPENSATION, DISABILITY AND  UNEMPLOYMENT
 REQUIREMENTS;
   (D)  MAINTAINING PERSONNEL RECORDS FOR EACH CONSUMER DIRECTED PERSONAL
 ASSISTANT, INCLUDING TIME SHEETS  AND  OTHER  DOCUMENTATION  NEEDED  FOR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10406-02-7

 S. 4995                             2
 
 WAGES  AND  BENEFIT  PROCESSING  AND A COPY OF THE MEDICAL DOCUMENTATION
 REQUIRED PURSUANT TO REGULATIONS ESTABLISHED BY THE COMMISSIONER;
   (E) ENSURING THAT THE HEALTH STATUS OF EACH CONSUMER DIRECTED PERSONAL
 ASSISTANT  IS ASSESSED PRIOR TO SERVICE DELIVERY PURSUANT TO REGULATIONS
 ISSUED BY THE COMMISSIONER;
   (F) MAINTAINING  RECORDS  OF  AUTHORIZATIONS  OR  REAUTHORIZATIONS  OF
 SERVICES;
   (G) MONITORING THE CONSUMER'S OR, IF APPLICABLE, THE DESIGNATED REPRE-
 SENTATIVE'S  CONTINUING  ABILITY  TO FULFILL THE CONSUMER'S RESPONSIBIL-
 ITIES UNDER THE PROGRAM AND PROMPTLY NOTIFYING THE AUTHORIZING ENTITY OF
 ANY CIRCUMSTANCE THAT MAY AFFECT THE CONSUMER'S OR, IF  APPLICABLE,  THE
 DESIGNATED REPRESENTATIVE'S ABILITY TO FULFILL SUCH RESPONSIBILITIES;
   (H)  COMPLYING WITH REGULATIONS ESTABLISHED BY THE COMMISSIONER SPECI-
 FYING THE RESPONSIBILITIES OF PROVIDERS PROVIDING  SERVICES  UNDER  THIS
 TITLE; AND
   (I)  ENTERING  INTO  A DEPARTMENT APPROVED MEMORANDUM OF UNDERSTANDING
 WITH THE CONSUMER THAT DESCRIBES  THE  PARTIES'  RESPONSIBILITIES  UNDER
 THIS PROGRAM.
   (III) FISCAL INTERMEDIARIES ARE NOT RESPONSIBLE FOR, AND FISCAL INTER-
 MEDIARY  SERVICES SHALL NOT INCLUDE, FULFILLMENT OF THE RESPONSIBILITIES
 OF THE CONSUMER OR, IF APPLICABLE, THE CONSUMER'S  DESIGNATED  REPRESEN-
 TATIVE  AS  ESTABLISHED  BY  THE  COMMISSIONER.  A FISCAL INTERMEDIARY'S
 RESPONSIBILITIES SHALL NOT INCLUDE, AND A FISCAL INTERMEDIARY SHALL  NOT
 ENGAGE  IN:  MANAGING THE PLAN OF CARE INCLUDING RECRUITING AND HIRING A
 SUFFICIENT NUMBER OF INDIVIDUALS WHO MEET  THE  DEFINITION  OF  CONSUMER
 DIRECTED  PERSONAL ASSISTANT, AS SUCH TERM IS DEFINED BY THE COMMISSION-
 ER, TO PROVIDE AUTHORIZED SERVICES THAT ARE INCLUDED ON  THE  CONSUMER'S
 PLAN  OF  CARE;  TRAINING,  SUPERVISING  AND  SCHEDULING  EACH  CONSUMER
 DIRECTED PERSONAL ASSISTANT; TERMINATING THE CONSUMER DIRECTED  PERSONAL
 ASSISTANT'S EMPLOYMENT; OR ASSURING THAT EACH CONSUMER DIRECTED PERSONAL
 ASSISTANT  COMPETENTLY  AND  SAFELY PERFORMS THE PERSONAL CARE SERVICES,
 HOME HEALTH AIDE SERVICES AND SKILLED NURSING TASKS THAT ARE INCLUDED ON
 THE CONSUMER'S PLAN  OF  CARE.  A  FISCAL  INTERMEDIARY  SHALL  EXERCISE
 REASONABLE  CARE IN PROPERLY CARRYING OUT ITS RESPONSIBILITIES UNDER THE
 PROGRAM.
   (B) NO ENTITY SHALL PROVIDE,  DIRECTLY  OR  THROUGH  CONTRACT,  FISCAL
 INTERMEDIARY  SERVICES  WITHOUT A CERTIFICATION AS A FISCAL INTERMEDIARY
 ISSUED BY THE COMMISSIONER IN ACCORDANCE WITH THIS SUBDIVISION.
   (C) AN APPLICATION FOR CERTIFICATION AS A FISCAL INTERMEDIARY SHALL BE
 FILED WITH THE COMMISSIONER, TOGETHER WITH SUCH OTHER FORMS AND INFORMA-
 TION AS SHALL BE PRESCRIBED BY, OR ACCEPTABLE TO THE COMMISSIONER.  SUCH
 INFORMATION SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (I)  THE  NAME,  EMPLOYER IDENTIFICATION NUMBER, AND MEDICAID PROVIDER
 IDENTIFICATION NUMBER OF  THE  ORGANIZATION,  INCLUDING  ANY  SUBSIDIARY
 CORPORATIONS,  IF  APPLICABLE,  AND ANY NAME UNDER WHICH THE ENTITY DOES
 BUSINESS;
   (II) ALL ADDRESSES AT WHICH THE ORGANIZATION OPERATES;
   (III) THE NAMES, TITLES AND CONTACT INFORMATION OF  ALL  OFFICERS  AND
 DIRECTORS  IN  A  NOT-FOR-PROFIT  COMPANY  OR BUSINESS, OR MANAGERS IN A
 LIMITED LIABILITY COMPANY, AS WELL AS THE NAME AND EMPLOYMENT HISTORY OF
 THE INDIVIDUAL ULTIMATELY ACCOUNTABLE FOR OPERATION OF THE FISCAL INTER-
 MEDIARY; AND FOR A NOT-FOR-PROFIT ENTITY, THE NUMBER OF  DIRECTOR  POSI-
 TIONS SET BY THE COMPANY'S BY-LAWS, AND HOW MANY ARE CURRENTLY FILLED;
   (IV)  A  HISTORY  OF  THE  ORGANIZATION, ALONG WITH AN OVERVIEW OF THE
 ORGANIZATION AND ALL SERVICES IT  OFFERS,  INCLUDING  ANY  RELATIONSHIPS
 WITH  OUTSIDE  AGENCIES THAT MAY INFLUENCE IN ANY WAY THE ABILITY OF THE

 S. 4995                             3
 
 ORGANIZATION TO PROVIDE FISCAL INTERMEDIARY SERVICES CONSISTENT WITH THE
 MANNER DESCRIBED IN ITS APPLICATION;
   (V)  ALL POLICIES AND PROCEDURES OF THE FISCAL INTERMEDIARY, INCLUDING
 ANY CONTRACTS OR OTHER DOCUMENTS USED IN COMMUNICATIONS WITH CONSUMERS;
   (VI) PLANS TO SOLICIT AND CONSIDER  INPUT  FROM  THE  FISCAL  INTERME-
 DIARY'S  CONSUMERS,  STAFF,  PERSONAL  ASSISTANTS  AND  OTHER INTERESTED
 PARTIES WHICH MAY BE CHARGED WITH ROLES INCLUDING, BUT NOT  LIMITED  TO,
 QUALITY ASSURANCE REVIEW, REFERRAL, PROGRAM MONITORING OR DEVELOPMENT OR
 ESTABLISHING AND RESPONDING TO COMMUNITY NEEDS; SUCH INPUT MAY BE IN THE
 FORM  OF  A  BOARD  OF DIRECTORS, COMMITTEE, SURVEY, OR OTHER MECHANISM,
 PROVIDED THAT THE MAJORITY OF INPUT OBTAINED AS  PART  OF  THIS  PROCESS
 MUST  BE  FROM INDIVIDUAL CONSUMERS AND CONSUMER ADVOCATES OF THE FISCAL
 INTERMEDIARY;
   (VII) THE ORGANIZATION'S PLAN TO ADDRESS THE NEEDS  OF  CONSUMERS  AND
 THEIR  PERSONAL  ASSISTANTS IN A TIMELY MANNER, REGARDLESS OF WHERE THEY
 LIVE, INCLUDING, BUT NOT LIMITED TO,  INPUT  FROM  CONSUMERS,  OBTAINING
 PHYSICALS AND OTHER HEALTH INFORMATION FROM PERSONAL ASSISTANTS, OBTAIN-
 ING TIME RECORDS FOR PAYROLL, AND TIMELY PROCESSING OF PAYROLL; AND
   (VIII)  A WRITTEN SWORN STATEMENT BY AN OFFICER OF THE ENTITY DISCLOS-
 ING  ANY  PENDING  LITIGATION,  UNSATISFIED  JUDGMENTS   OR   PENALTIES,
 CONVICTIONS FOR FRAUD OR SANCTIONS IMPOSED BY GOVERNMENT AUTHORITIES.
   (D)  THE ENTITY SHALL REASONABLY PROMPTLY NOTIFY THE DEPARTMENT OF ANY
 CHANGE IN THE INFORMATION SUBMITTED TO THE DEPARTMENT FOR  CERTIFICATION
 UNDER THIS SUBDIVISION.
   (E)  THE  COMMISSIONER  SHALL  NOT  APPROVE AN APPLICATION FOR CERTIF-
 ICATION UNLESS HE OR SHE IS SATISFIED AS TO  THE  CHARACTER,  COMPETENCE
 AND  STANDING  IN THE COMMUNITY OF THE APPLICANT'S INCORPORATORS, DIREC-
 TORS, SPONSORS, STOCKHOLDERS OR OPERATORS AND FINDS THAT THE  PERSONNEL,
 RULES,   CONSUMER  CONTRACTS  OR  AGREEMENTS,  AND  FISCAL  INTERMEDIARY
 SERVICES ARE FIT AND ADEQUATE, AND THAT THE FISCAL INTERMEDIARY SERVICES
 WILL BE PROVIDED IN THE MANNER REQUIRED  BY  THIS  SUBDIVISION  AND  THE
 RULES  AND  REGULATIONS HEREUNDER, IN A MANNER DETERMINED BY THE COMMIS-
 SIONER.
   (F) THE COMMISSIONER MAY CONTRACT  WITH  AN  ENTITY  WITH  APPROPRIATE
 KNOWLEDGE,  EXPERTISE  AND  EXPERIENCE POSSESSING EXTENSIVE KNOWLEDGE OF
 CONSUMER DIRECTED PERSONAL ASSISTANCE FISCAL INTERMEDIARY  SERVICES  AND
 WHICH HAS A HISTORY OF PROVIDING SIMILAR SERVICES IN RELATION TO A SELF-
 DIRECTED PROGRAM TO DEVELOP AND TO ASSIST THE COMMISSIONER IN EVALUATING
 APPLICANTS FOR CERTIFICATIONS OR READINESS REVIEWS TO BE A FISCAL INTER-
 MEDIARY.
   (G)  NEITHER PUBLIC NEED, TAX STATUS NOR PROFIT-MAKING STATUS SHALL BE
 A CRITERION FOR CERTIFICATION UNDER  THIS  SUBDIVISION.    STATUS  AS  A
 LICENSED  HOME  CARE  SERVICES AGENCY OR OTHER HEALTH PROVIDER SHALL NOT
 POSITIVELY OR NEGATIVELY AFFECT AN APPLICATION FOR  CERTIFICATION  UNDER
 THIS  SUBDIVISION.    AN  ORGANIZATION  AUTHORIZED  PURSUANT  TO ARTICLE
 FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL NOT BE A FISCAL INTERMEDIARY.
   (H) A CERTIFICATION UNDER THIS SUBDIVISION SHALL LAST FOR A PERIOD  OF
 FIVE  YEARS.  UPON  APPLICATION  FOR  A RENEWAL, THE FISCAL INTERMEDIARY
 SHALL SUBMIT UP TO DATE INFORMATION TO THE COMMISSIONER.
   (I) THE COMMISSIONER SHALL CHARGE APPLICANTS FOR THE CERTIFICATION  AN
 APPLICATION FEE OF ONE THOUSAND DOLLARS.
   4-B. PROCEEDINGS INVOLVING THE CERTIFICATION OF A FISCAL INTERMEDIARY.
 (A)  A CERTIFICATION OF A FISCAL INTERMEDIARY MAY BE REVOKED, SUSPENDED,
 LIMITED OR ANNULLED BY THE COMMISSIONER ON PROOF THAT IT HAS  FAILED  TO
 COMPLY WITH THE PROVISIONS OF THIS SUBDIVISION OR REGULATIONS PROMULGAT-
 ED HEREUNDER.

 S. 4995                             4
 
   (B)  NO  SUCH  CERTIFICATION  SHALL  BE  REVOKED,  SUSPENDED, LIMITED,
 ANNULLED OR DENIED WITHOUT A HEARING. HOWEVER, A  CERTIFICATION  MAY  BE
 TEMPORARILY  SUSPENDED  OR LIMITED WITHOUT A HEARING FOR A PERIOD NOT IN
 EXCESS OF THIRTY DAYS UPON WRITTEN NOTICE  TO  THE  FISCAL  INTERMEDIARY
 FOLLOWING  A  FINDING BY THE DEPARTMENT THAT THE PUBLIC HEALTH OR SAFETY
 IS IN IMMINENT DANGER. SUCH PERIOD MAY BE RENEWED  UPON  WRITTEN  NOTICE
 AND A CONTINUED FINDING UNDER THIS PARAGRAPH.
   (C)  THE  COMMISSIONER  SHALL  FIX A TIME AND PLACE FOR THE HEARING. A
 COPY OF THE CHARGES, TOGETHER WITH THE NOTICE OF THE TIME AND  PLACE  OF
 THE HEARING, SHALL BE SERVED IN PERSON OR MAILED BY REGISTERED OR CERTI-
 FIED MAIL TO THE FISCAL INTERMEDIARY AT LEAST TWENTY-ONE DAYS BEFORE THE
 DATE  FIXED FOR THE HEARING. THE FISCAL INTERMEDIARY SHALL FILE WITH THE
 DEPARTMENT NOT LESS THAN EIGHT DAYS PRIOR  TO  THE  HEARING,  A  WRITTEN
 ANSWER TO THE CHARGES.
   (D)  ALL  ORDERS  OR  DETERMINATIONS  UNDER  THIS SUBDIVISION SHALL BE
 SUBJECT TO REVIEW AS PROVIDED IN  ARTICLE  SEVENTY-EIGHT  OF  THE  CIVIL
 PRACTICE LAW AND RULES.
   § 2. This act shall take effect on the first of January after it shall
 have become a law; provided that prior to that date, the commissioner of
 health  shall  make regulations and take other actions reasonably neces-
 sary to implement this act on that date; and provided further  that  any
 entity  operating  as a fiscal intermediary prior to this act becoming a
 law may continue to do so for one year after this act takes effect,  and
 may  continue to do so after that time only upon obtaining certification
 under this act.