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-
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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
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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.
