S T A T E O F N E W Y O R K
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4973
2019-2020 Regular Sessions
I N S E N A T E
April 3, 2019
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Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the social services law and the public health law, in
relation to needs assessment and rate adequacy for medicaid
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 365-a of the social services law is amended by
adding a new subdivision 10 to read as follows:
10. FOR ANY DETERMINATION OF THE AMOUNT, NATURE AND MANNER OF PROVID-
ING ASSISTANCE UNDER THIS ARTICLE FOR WHICH AN ASSESSMENT TOOL IS USED,
THE DEPARTMENT, IN CONSULTATION WITH THE INDEPENDENT ACTUARY, REPRESEN-
TATIVES OF MEDICAL ASSISTANCE RECIPIENTS, REPRESENTATIVES OF THE MANAGED
CARE PROGRAMS, REPRESENTATIVES OF LONG TERM CARE PROVIDERS AND OTHER
INTERESTED PARTIES, SHALL EVALUATE EXISTING ASSESSMENT TOOLS AND DEVELOP
ADDITIONAL PROFESSIONALLY AND STATISTICALLY VALID ASSESSMENT TOOLS TO BE
USED TO ASSIST IN DETERMINING THE AMOUNT, NATURE AND MANNER OF SERVICES
AND CARE NEEDS OF INDIVIDUALS WHICH SHALL INVOLVE CONSIDERATION OF VARI-
ABLES INCLUDING BUT NOT LIMITED TO PHYSICAL AND BEHAVIORAL FUNCTIONING;
ACTIVITIES OF DAILY LIVING AND INSTRUMENTAL ACTIVITIES OF DAILY LIVING;
FAMILY, SOCIAL OR GEOGRAPHIC DETERMINANTS OF HEALTH; PRIMARY OR SECOND-
ARY DIAGNOSES OF COGNITIVE IMPAIRMENT OR MENTAL ILLNESS; AND OTHER
APPROPRIATE CONDITIONS OR FACTORS.
§ 2. Paragraphs (c) of subdivision 18 of section 364-j of the social
services law, as added by sections 40-c and 55 of part B of chapter 57
of the laws of 2015, are amended to read as follows:
(c) (I) In setting such reimbursement methodologies, the department
shall consider costs borne by the managed care program to ensure actuar-
ially sound and adequate rates of payment to ensure quality of care FOR
ITS ENROLLEES AND SHALL COMPLY WITH ALL APPLICABLE FEDERAL AND STATE
LAWS AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
WAGES, LABOR, AND ACTUARIAL SOUNDNESS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04193-01-9
S. 4973 2
[(c)] (II) The department [of health] shall require the independent
actuary selected pursuant to paragraph (b) of this subdivision to
provide a complete actuarial memorandum, along with all actuarial
assumptions made and all other data, materials and methodologies used in
the development of rates, to managed care providers thirty days prior to
submission of such rates to the centers for medicare and medicaid
services for approval. Managed care providers may request additional
review of the actuarial soundness of the rate setting process and/or
methodology.
(III) IN FULFILLING THE REQUIREMENTS OF THIS PARAGRAPH, THE DEPARTMENT
SHALL ESTABLISH SEPARATE RATE CELLS OR RISK ADJUSTMENTS TO REFLECT THE
COSTS OF CARE FOR SPECIFIC HIGH-NEED ENROLLEES IN MANAGED CARE PROVID-
ERS. THE COMMISSIONER SHALL MAKE ANY NECESSARY AMENDMENTS TO THE STATE
PLAN FOR MEDICAL ASSISTANCE UNDER SECTION THREE HUNDRED SIXTY-THREE-A OF
THIS TITLE, AND SUBMIT ANY APPLICATIONS FOR WAIVERS OF THE FEDERAL
SOCIAL SECURITY ACT, AS MAY BE NECESSARY TO ENSURE FEDERAL FINANCIAL
PARTICIPATION. AS USED IN THIS SUBPARAGRAPH AND SUBPARAGRAPH (IV) OF
THIS PARAGRAPH, "MANAGED CARE PROVIDER" SHALL MEAN A MANAGED CARE
PROVIDER OPERATING ON A FULL CAPITATION BASIS OR A MANAGED LONG TERM
CARE PLAN OPERATING UNDER SECTION FORTY-FOUR HUNDRED THREE-F OF THE
PUBLIC HEALTH LAW; AND "LONG TERM CARE ENTITY" SHALL MEAN A HOME CARE
SERVICES AGENCY UNDER ARTICLE THIRTY-SIX OF THE PUBLIC HEALTH LAW, A
FISCAL INTERMEDIARY IN THE CONSUMER DIRECTED PERSONAL ASSISTANCE
PROGRAM, OTHER LONG TERM CARE PROVIDER AUTHORIZED UNDER A HOME AND
COMMUNITY BASED WAIVER ADMINISTERED BY THE DEPARTMENT OR THE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL DISABILITIES. THE HIGH-NEED RATE CELLS OR
RISK ADJUSTMENTS ESTABLISHED IN ACCORDANCE WITH THIS SUBPARAGRAPH SHALL
BE CONSISTENT WITH SUBDIVISION TEN OF SECTION THREE HUNDRED SIXTY-FIVE-A
OF THIS TITLE AND INCLUDE, BUT SHALL NOT BE LIMITED TO:
(A) INDIVIDUALS ENROLLED WITH A MANAGED CARE PROVIDER, WHO REMAIN IN
THE COMMUNITY AND WHO DAILY RECEIVE LIVE-IN TWENTY-FOUR HOUR PERSONAL
CARE OR HOME HEALTH SERVICES OR TWELVE HOURS OR MORE OF PERSONAL CARE,
HOME HEALTH SERVICES OR HOME AND COMMUNITY SUPPORT SERVICES;
(B) SUCH OTHER INDIVIDUALS WHO, BASED ON THE ASSESSMENT OF THEIR CARE
NEEDS, THEIR DIAGNOSIS OR OTHER FACTORS, ARE DETERMINED TO PRESENT ESPE-
CIALLY HIGH NEEDS RELATED TO FACTORS THAT WOULD INFLUENCE THE DELIVERY
(INCLUDING BUT NOT LIMITED TO HOME LOCATION) OR THEIR USE OF SERVICES,
AS MAY BE IDENTIFIED BY THE DEPARTMENT.
(IV) ANY CONTRACT FOR SERVICES UNDER THIS TITLE BY A MANAGED CARE
PROVIDER WITH A LONG TERM CARE ENTITY SHALL ENSURE THAT RESOURCES MADE
AVAILABLE BY THE PAYER UNDER SUCH CONTRACT WILL SUPPORT THE RECRUITMENT,
HIRING, TRAINING AND RETENTION OF A QUALIFIED WORKFORCE CAPABLE OF
PROVIDING QUALITY CARE, INCLUDING COMPLIANCE WITH ALL APPLICABLE FEDERAL
AND STATE LAWS AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, THOSE
RELATING TO WAGES AND LABOR. A MANAGED CARE PROVIDER WITH A LONG TERM
CARE ENTITY SHALL REPORT ITS METHOD OF COMPLIANCE WITH THIS SUBDIVISION
TO THE DEPARTMENT AS A COMPONENT OF COST REPORTS REQUIRED UNDER SECTION
FORTY-FOUR HUNDRED THREE-F OF THE PUBLIC HEALTH LAW.
(V) A LONG TERM CARE ENTITY THAT CONTRACTS WITH A MANAGED CARE PROVID-
ER SHALL ANNUALLY SUBMIT WRITTEN CERTIFICATION TO THE DEPARTMENT AS A
COMPONENT OF COST REPORTS REQUIRED UNDER SECTION THIRTY-SIX HUNDRED
TWELVE OF THE PUBLIC HEALTH LAW AND SECTIONS THREE HUNDRED SIXTY-FIVE-A
AND THREE HUNDRED SIXTY-SEVEN-Q OF THIS TITLE, AS APPLICABLE, AS TO HOW
IT APPLIED THE AMOUNTS PAID IN COMPLIANCE WITH THIS SUBDIVISION TO
SUPPORT THE RECRUITMENT, HIRING, TRAINING AND RETENTION OF A QUALIFIED
S. 4973 3
WORKFORCE CAPABLE OF PROVIDING QUALITY CARE AND CONSISTENT WITH SECTION
THREE HUNDRED SIXTY-FIVE-A OF THIS TITLE.
§ 3. Subparagraph (ii) of paragraph (a) and paragraph (g) of subdivi-
sion 7 and subdivision 8 of section 4403-f of the public health law,
subparagraph (ii) of paragraph (a) of subdivision 7 as amended by
section 43 of part C of chapter 60 of the laws of 2014, paragraph (g) of
subdivision 7 as amended by section 41-b of part H of chapter 59 of the
laws of 2011, subparagraph (i) of paragraph (g) of subdivision 7 as
amended by section 1 of part GGG of chapter 59 of the laws of 2017,
subparagraph (iii) of paragraph (g) of subdivision 7 as amended by
section 54 of part A of chapter 56 of the laws of 2013 and subdivision 8
as amended by section 21 of part B of chapter 59 of the laws of 2016,
are amended to read as follows:
(ii) Notwithstanding any inconsistent provision of the social services
law to the contrary, the commissioner shall, pursuant to regulation,
determine whether and the extent to which the applicable provisions of
the social services law or regulations relating to approvals and author-
izations of, and utilization limitations on, health and long term care
services reimbursed pursuant to title XIX of the federal social security
act, including, but not limited to, fiscal assessment requirements, are
inconsistent with the flexibility necessary for the efficient adminis-
tration of managed long term care plans and such regulations shall
provide that such provisions shall not be applicable to enrollees or
managed long term care plans, provided that such determinations are
consistent with applicable federal law and regulation, and subject to
the provisions of [subdivision] SUBDIVISIONS eight AND TEN of section
three hundred sixty-five-a AND PARAGRAPH (C) OF SUBDIVISION EIGHTEEN OF
SECTION THREE HUNDRED SIXTY-FOUR-J of the social services law.
(g) (i) Managed long term care plans and demonstrations may enroll
eligible persons in the plan or demonstration upon the completion of a
comprehensive assessment [that shall include, but not be limited to, an
evaluation of the medical, social, cognitive, and environmental needs]
of each prospective enrollee in such program CONSISTENT WITH SECTION
THREE HUNDRED SIXTY-FIVE-A OF THE SOCIAL SERVICES LAW. This assessment
shall also serve as the basis for the development and provision of an
appropriate plan of care for the enrollee. Upon approval of federal
waivers pursuant to paragraph (b) of this subdivision which require
medical assistance recipients who require community-based long term care
services to enroll in a plan, and upon approval of the commissioner, a
plan may enroll an applicant who is currently receiving home and commu-
nity-based services and complete the comprehensive assessment within
thirty days of enrollment provided that the plan continues to cover
transitional care until such time as the assessment is completed.
(ii) The assessment shall be completed by a representative of the
managed long term care plan or demonstration, in consultation with the
prospective enrollee's health care practitioner as necessary. The
commissioner shall prescribe the forms on which the assessment shall be
made.
(iii) The enrollment application shall be submitted by the managed
long term care plan or demonstration to the entity designated by the
department prior to the commencement of services under the managed long
term care plan or demonstration. Enrollments conducted by a plan or
demonstration shall be subject to review and audit by the department or
a contractor selected pursuant to paragraph (d) of this subdivision.
(iv) Continued enrollment in a managed long term care plan or demon-
stration paid for by government funds shall be based upon a comprehen-
S. 4973 4
sive assessment [of the medical, social and environmental needs] of the
recipient of the services CONSISTENT WITH SECTION THREE HUNDRED SIXTY-
FIVE-A OF THIS SOCIAL SERVICES LAW. Such assessment shall be performed
at least every six months by the managed long term care plan serving the
enrollee. The commissioner shall prescribe the forms on which the
assessment will be made.
8. Payment rates for managed long term care plan enrollees eligible
for medical assistance. The commissioner shall establish payment rates
for services provided to enrollees eligible under title XIX of the
federal social security act. Such payment rates shall be subject to
approval by the director of the division of the budget and shall reflect
savings to both state and local governments when compared to costs which
would be incurred by such program if enrollees were to receive compara-
ble health and long term care services on a fee-for-service basis in the
geographic region in which such services are proposed to be provided.
Payment rates shall be risk-adjusted to take into account the character-
istics of enrollees, or proposed enrollees, including, but not limited
to: frailty, disability level, health and functional status, age,
gender, the nature of services provided to such enrollees, and other
factors as determined by the commissioner. The risk adjusted premiums
may also be combined with disincentives or requirements designed to
mitigate any incentives to obtain higher payment categories. In setting
such payment rates, the commissioner shall consider costs borne by the
managed care program to ensure actuarially sound and adequate rates of
payment to ensure quality of care AND shall comply with all applicable
laws and regulations, state and federal, including [regulations as to],
BUT NOT LIMITED TO, THOSE RELATING TO WAGES, LABOR AND actuarial sound-
ness [for medicaid managed care].
§ 4. Subparagraph (i) of paragraph (g) of subdivision 7 of section
4403-f of the public health law, as added by section 65-c of part A of
chapter 57 of the laws of 2006 and such paragraph as relettered by
section 20 of part C of chapter 58 of the laws of 2007, is amended to
read as follows:
(i) Managed long term care plans and demonstrations may enroll eligi-
ble persons in the plan or demonstration upon the completion of a
comprehensive assessment [that shall include, but not be limited to, an
evaluation of the medical, social and environmental needs] of each
prospective enrollee in such program CONSISTENT WITH SECTION THREE
HUNDRED SIXTY-FIVE-A OF THE SOCIAL SERVICES LAW. This assessment shall
also serve as the basis for the development and provision of an appro-
priate plan of care for the prospective enrollee.
§ 5. This act shall take effect immediately; provided that sections
two and three of this act shall take effect April 1, 2020; and provided,
further that:
a. the amendments 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;
b. the amendments to section 4403-f of the public health law made by
section three of this act shall not affect the repeal of such section
and shall be deemed repealed therewith; and
c. the amendments to subparagraph (i) of paragraph (g) of subdivision
7 of section 4403-f of the public health law made by section three of
this act shall not affect the expiration and reversion of such subpara-
graph, pursuant to subdivision (i) of section 111 of part H of chapter
59 of the laws of 2011, as amended, when upon such date the provisions
of section four of this act shall take effect.
