The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6664--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 11, 2021
                                ___________
 
 Introduced  by  Sens. MAY, RIVERA -- read twice and ordered printed, and
   when printed to be committed to the Committee on Aging --  recommitted
   to  the Committee on Aging in accordance with Senate Rule 6, sec. 8 --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee

 AN  ACT  to  amend  the public health law, in relation to establishing a
   state-level program of all-inclusive care for the  elderly;  to  amend
   the  social  services law, in relation to making technical corrections
   to such law; and repealing certain provisions of the  social  services
   law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and intent. The legislature finds that
 the Program of All-Inclusive Care for the Elderly ("PACE") is  a  feder-
 ally  recognized model of comprehensive care for persons 55 years of age
 or older, qualifying for nursing home levels of care who wish to  remain
 in  their  community  (see, Sections 1894 and 1934 to Title XVIII of the
 Social Security Act; 42 CFR 460). The PACE program includes  both  Medi-
 caid  and  Medicare covered benefits.   Federal preemption of state laws
 with respect to PACE has inhibited  the  ability  of  state  agencies  -
 particularly  the New York State Department of Health ("DOH") - to regu-
 late PACE plans similarly to other public and commercial health plans.
   The legislature further finds that:  Research  has  demonstrated  that
 PACE  has  delivered  marked  improvements for enrollees in the programs
 nationwide including, but not limited to  reduced  hospitalizations  and
 readmissions;  reduced  reliance on emergency medical services; improved
 quality of life; and higher satisfaction  with  the  totality  of  their
 care. In conjunction with these improvements, the implementation of PACE
 in  New  York  has  realized significant savings to the state's Medicaid
 program compared to costs that would have been incurred  under  fee-for-
 service. As neither a fee-for-service model nor a managed long-term care
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11336-02-2

 S. 6664--A                          2
 
 plan,  PACE  represents a unique approach to care and coverage for those
 with long-term care needs. PACE organizations are currently required  to
 be  licensed  and  are  regulated under multiple provisions of state and
 federal  law.  Uniformity  of  regulation of PACE organizations promotes
 both efficiency for organizations and for the state.
   For all the foregoing reasons, it is the  intent  of  the  legislature
 through  this  act  to provide a more efficient and uniform structure to
 promote the prudent development of PACE organizations in the  state,  to
 promote  better  health  outcomes  for  New  Yorkers  enrolled  in  such
 programs, and  to  realize  administrative  efficiencies  through  these
 programs.  It  is the intent of the legislature to recognize PACE organ-
 izations as integrated providers of care and to  that  end,  nothing  in
 this  article  is  intended  to construe PACE organizations as a managed
 care organization as defined by article 44 of the public health law.
   § 2. The public health law is amended by adding a new article 29-EE to
 read as follows:
                               ARTICLE 29-EE
                         PROGRAMS OF ALL-INCLUSIVE
                           CARE FOR THE ELDERLY
 SECTION 2999-S. DEFINITIONS.
         2999-T. PACE PROGRAM ESTABLISHMENT.
         2999-U. CRITERIA FOR PROGRAM ELIGIBILITY AND LICENSURE.
         2999-V. ELIGIBILITY AND ENROLLMENT.
         2999-W. INCLUDED PROGRAM BENEFITS.
         2999-X. REIMBURSEMENT.
         2999-Y. SEVERABILITY.
   § 2999-S. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1. "PACE ORGANIZATION" MEANS A PACE PROVIDER, AS DEFINED IN 42  U.S.C.
 §1395EEE  AND  ESTABLISHED IN ACCORDANCE WITH FEDERAL PUBLIC LAW 105-33,
 SUBTITLE I OF TITLE IV OF THE BALANCED BUDGET ACT OF 1997.
   2. "PROGRAM OF ALL-INCLUSIVE CARE FOR THE ELDERLY" OR  "PACE  PROGRAM"
 MEANS THE FEDERALLY RECOGNIZED MODEL OF COMPREHENSIVE CARE THAT PROVIDES
 MEDICAID  AND  MEDICARE  COVERED  SERVICES  TO ELIGIBLE INDIVIDUALS, AND
 SHALL INCLUDE THOSE PROGRAMS DEFINED AS  "OPERATING  DEMONSTRATIONS"  BY
 SECTION FORTY-FOUR HUNDRED THREE-F OF THIS CHAPTER.
   3.  "PACE  CENTER" MEANS A DIAGNOSTIC AND TREATMENT CENTER ESTABLISHED
 UNDER ARTICLE TWENTY-EIGHT OF THIS CHAPTER AND OPERATED BY A PACE ORGAN-
 IZATION WHERE PRIMARY CARE AND OTHER SERVICES ARE FURNISHED TO ENROLLEES
 OF SUCH PROGRAM.
   4. "PACE PROGRAM AGREEMENT" SHALL HAVE THE SAME MEANING AS DEFINED  BY
 42 U.S.C. § 1395EEE.
   §  2999-T.  PACE  PROGRAM ESTABLISHMENT. 1. NOTWITHSTANDING ANY INCON-
 SISTENT PROVISION OF LAW TO THE CONTRARY, THE COMMISSIONER SHALL  ESTAB-
 LISH  A  STATE PROGRAM OF ALL-INCLUSIVE CARE FOR THE ELDERLY, TO PROVIDE
 COMMUNITY-BASED, RISK-BASED, AND CAPITATED LONG-TERM  CARE  SERVICES  AS
 OPTIONAL SERVICES UNDER THE STATE'S MEDICAID STATE PLAN AND ANY APPLICA-
 BLE WAIVERS, AS WELL AS UNDER CONTRACTS ENTERED INTO BETWEEN THE FEDERAL
 CENTERS  FOR  MEDICARE  AND  MEDICAID SERVICES, THE DEPARTMENT, AND PACE
 ORGANIZATIONS.
   2. THE ESTABLISHMENT OF SUCH A PROGRAM SHALL NOT PRECLUDE THE  CONTIN-
 UED  OPERATION  OF  EXISTING  APPROVED PACE ORGANIZATIONS AT THE TIME OF
 ENACTMENT OF THIS ARTICLE. THE DEPARTMENT MAY ESTABLISH  A  PROCESS,  IF
 DEEMED  NECESSARY,  TO  ASSIST  THE TRANSITION OF SUCH EXISTING PROGRAMS
 THROUGH PROCESSES AND REQUIREMENTS SET FORTH PURSUANT TO THIS ARTICLE.
 S. 6664--A                          3
 
   § 2999-U. CRITERIA FOR PROGRAM ELIGIBILITY AND LICENSURE. 1.   PROGRAM
 CRITERIA. THE REQUIREMENTS OF THE PACE PROGRAM, AS PROVIDED FOR PURSUANT
 TO  42  U.S.C.  § 1395EEE AND 42 U.S.C. § 1396U-4 SHALL NOT BE WAIVED OR
 MODIFIED. NEW YORK STATE PACE ORGANIZATION REQUIREMENTS SHALL INCLUDE:
   (A) THE PROVISION OF A PACE CENTER; AND
   (B)  THE  ADOPTION  AND  IMPLEMENTATION  OF  AN INTERDISCIPLINARY TEAM
 APPROACH TO CARE MANAGEMENT, CARE DELIVERY, AND CARE PLANNING.
   2. CONTRACTING. THE DEPARTMENT MAY ENTER INTO CONTRACTS WITH PUBLIC OR
 PRIVATE ORGANIZATIONS FOR IMPLEMENTATION OF THE  STATE'S  PACE  PROGRAM,
 AND  MAY  ENTER INTO ADDITIONAL CONTRACTS AS NECESSARY TO IMPLEMENT SUCH
 PROGRAM, OR ANY OTHER REQUIREMENT DEEMED NECESSARY TO PROVIDE COMPREHEN-
 SIVE COMMUNITY-BASED, RISK-BASED AND CAPITATED LONG-TERM CARE TO  ELIGI-
 BLE POPULATIONS. ADDITIONALLY:
   (A)  PACE  ORGANIZATIONS  SHALL  CONTRACT  WITH THE FEDERAL CENTER FOR
 MEDICARE AND MEDICAID SERVICES TO ENTER INTO A PACE ORGANIZATION  AGREE-
 MENT.
   (B) PACE ORGANIZATIONS LICENSED UNDER THIS ARTICLE SHALL BE AUTHORIZED
 TO  ACT  AS  FISCAL  INTERMEDIARIES FOR THEIR ENROLLEES WITHOUT ENTERING
 INTO ADDITIONAL CONTRACTS WITH THE  STATE  TO  CONDUCT  SUCH  DUTIES  ON
 BEHALF OF ENROLLEES.
   3.  LICENSURE.  IN SETTING FORTH REQUIREMENTS TO ESTABLISH THE STATE'S
 PACE PROGRAM, THE DEPARTMENT SHALL PROVIDE FOR A UNIFIED LICENSURE PROC-
 ESS FOR PACE ORGANIZATIONS THAT IS INCLUSIVE OF PROGRAM REQUIREMENTS SET
 FORTH UNDER ARTICLES FORTY-FOUR, THIRTY-SIX, AND  TWENTY-EIGHT  OF  THIS
 CHAPTER, AS WELL AS PERTINENT REGULATORY REQUIREMENTS FOR PACE ORGANIZA-
 TIONS  IN  ACCORDANCE  WITH  A REGULATORY APPROACH WHICH SHALL BE ESTAB-
 LISHED BY THE DEPARTMENT. FOR THE PURPOSES OF SUBDIVISION ONE OF SECTION
 SIXTY-FIVE HUNDRED TWENTY-SEVEN OF THE EDUCATION LAW, A  PACE  ORGANIZA-
 TION  SHALL BE DEEMED TO BE A HEALTH MAINTENANCE ORGANIZATION AS DEFINED
 BY SECTION FORTY-FOUR HUNDRED ONE OF THIS CHAPTER.
   4. OPERATIONS AND OVERSIGHT. THE DEPARTMENT SHALL:
   (A) ESTABLISH REQUIREMENTS FOR FINANCIAL SOLVENCY FOR  PACE  ORGANIZA-
 TIONS IN COMPLIANCE WITH THOSE SET FORTH IN PARAGRAPH (C) OF SUBDIVISION
 ONE  OF  SECTION  FORTY-FOUR  HUNDRED  THREE  OF THIS CHAPTER, AND SHALL
 ESTABLISH A CONTINGENT RESERVE REQUIREMENT FOR PACE ORGANIZATIONS WHICH,
 PURSUANT TO REGULATIONS, MAY BE DIFFERENT THAN OTHER PROGRAMS;
   (B) PROVIDE OVERSIGHT OF PACE ORGANIZATION OPERATIONS IN  COORDINATION
 WITH THE CENTERS FOR MEDICARE AND MEDICAID SERVICES, INCLUDING ANY RULES
 APPROPRIATE  FOR  THE  SAFE, EFFICIENT AND ORDERLY ADMINISTRATION OF THE
 PROGRAM; AND
   (C) DEVELOP A SINGLE PROCESS FOR PACE ORGANIZATIONS  TO  COMPLETE  ALL
 REPORTS,  AUDITS,  SURVEYS,  AND  OTHER  DATA  OR INFORMATION COLLECTION
 REQUIRED BY FEDERAL, STATE OR LOCAL AUTHORITIES.
   § 2999-V. ELIGIBILITY AND ENROLLMENT. 1. TO BE ELIGIBLE FOR ENROLLMENT
 IN THE PACE PROGRAM, AN INDIVIDUAL MUST:
   (A) (I) BE AT LEAST FIFTY-FIVE YEARS OLD;
   (II) MEET THE STATE'S ELIGIBILITY CRITERIA FOR NURSING HOME  LEVEL  OF
 CARE;
   (III) RESIDE WITHIN THE PACE PROGRAM-APPROVED SERVICE AREA; AND
   (IV) BE ABLE TO BE MAINTAINED SAFELY IN THE COMMUNITY-BASED SETTING AT
 THE TIME OF ENROLLMENT WITH THE ASSISTANCE OF A PACE ORGANIZATION; OR
   (B) BE OTHERWISE ELIGIBLE FOR PARTICIPATION IN A PACE DEMONSTRATION OR
 SPECIALTY  PROGRAM  AUTHORIZED  BY  THE  FEDERAL PACE INNOVATION ACT AND
 APPROVED BY THE CENTERS FOR MEDICARE AND MEDICAID SERVICES.
   2. NOTWITHSTANDING ANY LAW OR REGULATION TO THE CONTRARY,  IF  FEDERAL
 LAW  OR REGULATION SETS FORTH BROADER ELIGIBILITY OR ENROLLMENT REQUIRE-
 S. 6664--A                          4
 
 MENTS THAN THOSE SET FORTH UNDER SUBDIVISION ONE OF THIS SECTION, ELIGI-
 BILITY FOR THE PACE PROGRAM SHALL CONFORM TO SUCH FEDERAL REQUIREMENTS.
   3.  ENROLLMENT  AND  PARTICIPATION  BY INDIVIDUALS IN THE PACE PROGRAM
 SHALL BE VOLUNTARY.
   § 2999-W. INCLUDED PROGRAM BENEFITS. ENROLLEES  IN  THE  PACE  PROGRAM
 SHALL  BE PROVIDED A BENEFIT PACKAGE BY THEIR PACE ORGANIZATION, REGARD-
 LESS OF SOURCE OF PAYMENT, THAT INCLUDES:
   (A) ALL MEDICARE-COVERED ITEMS AND SERVICES;
   (B) ALL MEDICAID-COVERED ITEMS  AND  SERVICES,  AS  SPECIFIED  IN  THE
 STATE'S  MEDICAID  PLAN AND IN SECTION THREE HUNDRED SIXTY-FOUR-J OF THE
 SOCIAL SERVICES LAW; AND
   (C) OTHER SUCH SERVICES AS DETERMINED NECESSARY BY THE  INTERDISCIPLI-
 NARY  TEAM  TO  IMPROVE  AND  MAINTAIN  THE PARTICIPANT'S OVERALL HEALTH
 STATUS.
   § 2999-X. REIMBURSEMENT. THE DEPARTMENT SHALL DEVELOP  AND  IMPLEMENT,
 IN  CONFORMANCE  WITH APPLICABLE FEDERAL REQUIREMENTS, A METHODOLOGY FOR
 ESTABLISHING RATES OF PAYMENT FOR COSTS OF  BENEFITS  PROVIDED  BY  PACE
 ORGANIZATIONS TO ITS MEDICAID ELIGIBLE PACE PROGRAM ENROLLEES.
   1. METHODOLOGY. TO THE EXTENT REQUIRED BY FEDERAL LAW, SUCH RATE METH-
 ODOLOGIES  FOR  PACE  ORGANIZATIONS  SHALL RESULT IN A PAYMENT AMOUNT NO
 GREATER THAN THE AMOUNT THAT WOULD OTHERWISE HAVE BEEN PAID FOR COMPARA-
 BLE SERVICES PROVIDED PURSUANT TO THE STATE  PLAN  IF  THE  PARTICIPANTS
 WERE  NOT  ENROLLED IN THE PACE PROGRAM. PACE PROGRAM RATES SHALL BE SET
 IN COMPLIANCE WITH RELEVANT CENTERS FOR MEDICARE AND  MEDICAID  SERVICES
 RATE SETTING RULES AND GUIDANCE.
   2.  TRANSPARENCY.  THE  DEPARTMENT SHALL PROVIDE, OR SHALL REQUIRE ANY
 INDEPENDENT ACTUARY USED TO REVIEW PACE PROGRAM REIMBURSEMENT  RATES  TO
 PROVIDE,  TO  PACE ORGANIZATIONS THE DOCUMENTS AND INFORMATION REGARDING
 PACE PROGRAM REIMBURSEMENT RATES SUBMITTED TO THE CENTERS  FOR  MEDICARE
 AND  MEDICAID  SERVICES  IN  A  FORM  AND TIME FRAME CONSISTENT WITH THE
 REQUIREMENTS FOR THE DEPARTMENT TO PROVIDE OR CAUSE TO BE PROVIDED DOCU-
 MENTS AND INFORMATION TO MEDICAID MANAGED CARE PROVIDERS UNDER PARAGRAPH
 (C) OF SUBDIVISION EIGHTEEN OF SECTION THREE HUNDRED SIXTY-FOUR-J OF THE
 SOCIAL SERVICES LAW.
   § 2999-Y. SEVERABILITY. IF ANY  PROVISION  OF  THIS  ARTICLE,  OR  ANY
 APPLICATION  OF ANY PROVISION OF THIS ARTICLE, IS HELD TO BE INVALID, OR
 TO VIOLATE OR BE INCONSISTENT WITH ANY FEDERAL LAW OR  REGULATION,  SUCH
 VIOLATION  OR  INCONSISTENCY SHALL NOT AFFECT THE VALIDITY OR EFFECTIVE-
 NESS OF ANY OTHER PROVISION OF THIS ARTICLE, OR OF ANY OTHER APPLICATION
 OF ANY PROVISION OF THIS ARTICLE, WHICH CAN BE GIVEN EFFECT WITHOUT SUCH
 PROVISION OR APPLICATION; AND TO SUCH END, THE PROVISIONS  AND  APPLICA-
 TIONS OF THIS ARTICLE SHALL BE SEVERABLE.
   §  3.  Paragraph  (c) of subdivision 18 of section 364-j of the social
 services law, as added by section 55 of part B of chapter 57 of the laws
 of 2015, is REPEALED.
   § 4. Paragraph (c) of subdivision 18 of section 364-j  of  the  social
 services  law,  as  added by section 40-c of part B of chapter 57 of the
 laws of 2015, is amended to read as follows:
   (c) In setting such reimbursement methodologies, the department  shall
 consider  costs  borne by the managed care program to ensure actuarially
 sound and adequate rates of payment to ensure  quality  of  care.    THE
 DEPARTMENT  SHALL  REQUIRE  THE INDEPENDENT ACTUARY SELECTED PURSUANT TO
 PARAGRAPH (B) OF THIS SUBDIVISION TO PROVIDE A COMPLETE ACTUARIAL  MEMO-
 RANDUM,  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
 S. 6664--A                          5
 
 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.
   §  5.  This  act shall take effect January 1, 2023, provided, however,
 that the amendments made to section 364-j of  the  social  services  law
 made  by  section  four  of this act shall not affect the repeal of such
 section and shall be deemed repealed therewith.  Effective  immediately,
 the  addition,  amendment and/or repeal of any rule or regulation neces-
 sary for the implementation of  this  act  on  its  effective  date  are
 authorized to be made and completed on or before such effective date.