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This entry was published on 2014-09-22
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SECTION 2999-Q
Accountable care organizations; requirements
Public Health (PBH) CHAPTER 45, ARTICLE 29-E
§ 2999-q. Accountable care organizations; requirements. 1. The
commissioner shall make regulations establishing criteria for
certificates of authority, quality standards for ACOs, reporting
requirements and other matters deemed to be appropriate and necessary in
the operation and evaluation of ACOs under this article. In making 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.
Such regulations shall be consistent, to the extent practical and
consistent with this article, with CMS regulations for accountable care
organizations under the Medicare program.

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
that reasonably and equitably represents the ACO's participants and the
ACO's patients, 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
characteristics;

(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 including where practicable
elevating the services of primary care health care providers to meet
patient-centered medical home standards, coordinating services for
complex high-need patients, and providing 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 (which may include medical home 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
preventing unreasonable discrimination;

(h) Mechanisms for quality assurance and grievance procedures for
patients or health care providers where appropriate, and procedures for
reviewing and appealing patient care decisions;

(i) Mechanisms that promote evidence-based health care, patient
engagement, coordination of care, electronic health records, including
participation in health information exchanges, other enabling
technologies and integrated, efficient and effective health care
services;

(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, including similar
metrics as the commissioner publishes for other organizations such as
Medicaid managed care providers under section three hundred sixty-four-j
of the social services law and health homes under section three hundred
sixty-five-l of the social services law;

(m) Requirements for the submission of information and data by ACOs
and their participating and affiliated health care providers as
necessary for the evaluation of the success of ACOs;

(n) Protection of patient rights as appropriate;

(o) The impact of the establishment and operation of an ACO, including
providing that it shall not diminish access to any health care service
for the population served and 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) The ACO shall provide for meaningful participation in the
composition and control of the ACO's governing body for ACO participants
or their designated representatives.

(b) The ACO governing body shall include at least one representative
of each of the following groups: (i) recipients of Medicaid, family
health plus, or child health plus; (ii) persons with other health
coverage; and (iii) persons who do not have health coverage. Such
representatives shall have no conflict of interest with the ACO and no
immediate family member with a conflict of interest with the ACO.

(c) At least seventy-five percent control of the ACO's governing body
shall be held by ACO participants.

(d) Members of the ACO governing body shall have a fiduciary
relationship with the ACO and shall be subject to conflict of interest
requirements adopted by the ACO and in regulations of the commissioner.

(e) The ACO's finances, including dividends and other return on
capital, debt structure, executive compensation, and ACO participant
compensation, shall be arranged and conducted to maximize the
achievement of the purposes of this article.

4. (a) An ACO shall use its best efforts to include among its
participants, on reasonable terms and conditions, any
federally-qualified health center that is willing to be a participant
and that serves the area and population served by the ACO.

(b) An ACO may seek to focus on providing health care services to
patients with one or more chronic conditions or special needs. However,
an ACO may not otherwise, on the basis of a person's medical or
demographic characteristics, discriminate for or against or discourage
or encourage any person or person with respect to enrolling or
participating in the ACO.

(c) An ACO shall not, by incentives or otherwise, discourage a health
care provider from providing or an enrollee or patient from seeking
appropriate health care services.

(d) An ACO shall not discriminate against or disadvantage a patient or
patient's representative for the exercise of patient autonomy.

(e) An ACO may not limit or restrict beneficiaries to use of providers
contracted or affiliated with the ACO. An ACO may not require a patient
to obtain the prior approval, from a primary care gatekeeper or
otherwise, before utilizing the services of other providers. An ACO may
not make adverse determinations as defined in article forty-nine of this
chapter.

5. An ACO may provide care coordination for its participating
patients, which (a) shall include but not be limited to managing,
referring to, locating, coordinating, and monitoring health care
services for the member to assure that all medically necessary health
care services are made available to and are effectively used by the
member in a timely manner, consistent with patient autonomy; and (b) is
not a requirement for prior authorization for health care services, and
referral shall not be required for a member to receive a health care
service.

6. (a) Subject to regulations of the commissioner: (i) an ACO may
enter into arrangements with one or more third-party health care payers
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
authorize a third-party health care payer to participate in payment
methodologies 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.

(c) An ACO may contract with a third-party health care payer to serve
as all or part of the third-party health care payer's provider network
or care coordination agent, provided in that case the ACO shall be
subject to all provisions of this chapter or the insurance law which are
applicable to the provider network of the third-party health care payer.

7. 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.