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This entry was published on 2022-04-22
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SECTION 364-J
Managed care programs
Social Services (SOS) CHAPTER 55, ARTICLE 5, TITLE 11
* § 364-j. Managed care programs. 1. Definitions. As used in this
section, unless the context clearly requires otherwise, the following
terms shall mean:

(a) "Participant". A medical assistance recipient who receives, is
required to receive or elects to receive his or her medical assistance
services from a managed care provider.

(b) "Managed care provider". An entity that provides or arranges for
the provision of medical assistance services and supplies to
participants directly or indirectly (including by referral), including
case management; and:

(i) is authorized to operate under article forty-four of the public
health law or article forty-three of the insurance law and provides or
arranges, directly or indirectly (including by referral) for covered
comprehensive health services on a full capitation basis, including a
special needs managed care plan or comprehensive HIV special needs plan;
or

** (ii) is authorized as a partially capitated program pursuant to
section three hundred sixty-four-f of this title or section forty-four
hundred three-e of the public health law or section 1915b of the social
security act; or

** NB Effective until September 30, 2023

** (ii) is authorized as a partially capitated program pursuant to
section three hundred sixty-four-f of this title or section forty-four
hundred three-e of the public health law or section 1915b of the social
security act.

** NB Effective September 30, 2023

** (iii) is authorized to operate under section forty-four hundred
three-g of the public health law.

** NB Repealed September 30, 2023

(c) "Managed care program". A statewide program in which medical
assistance recipients enroll on a voluntary or mandatory basis to
receive medical assistance services, including case management, directly
and indirectly (including by referral) from a managed care provider,
including as applicable, a special needs managed care plan or a
comprehensive HIV special needs plan, under this section.

(d) "Medical services provider". A physician, nurse, nurse
practitioner, physician assistant, licensed midwife, dentist,
optometrist or other licensed health care practitioner authorized to
provide medical assistance services.

(e) "Center of excellence." A health care facility certified to
operate under article twenty-eight of the public health law that offers
specialized treatment expertise in HIV care services as defined by the
commissioner of health.

(f) "Primary care practitioner". A physician or nurse practitioner
providing primary care to and management of the medical and health care
services of a participant served by a managed care provider.

(g) "AIDS". AIDS shall have the same meaning as in article
twenty-seven-f of the public health law.

(h) "HIV infection". HIV infection shall have the same meaning as in
article twenty-seven-f of the public health law.

(i) "HIV-related illness". HIV-related illness shall have the same
meaning as in article twenty-seven-f of the public health law.

(j) "Specialty care center". A "specialty care center" shall mean only
such centers as are accredited or designated by an agency of the state
or federal government or by a voluntary national health organization as
having special expertise in treating the disease or condition for which
it is accredited or designated.

(k) "Special care". Care, services and supplies relating to the
treatment of mental illness, mental retardation, developmental
disabilities, alcoholism, alcohol abuse or substance abuse, or HIV
infection/AIDS.

(l) "Responsible special care agency". Whichever of the following
state agencies has responsibility for the special care in question: the
department of health, the office of mental health, the office for people
with developmental disabilities, or the office of alcoholism and
substance abuse services.

(m) "Special needs managed care plan" shall have the same meaning as
in section forty-four hundred one of the public health law.

(n) "Comprehensive HIV special needs plan" shall have the same meaning
as in section forty-four hundred three-c of the public health law.

(o) "Third-party payor". Any entity or program that is or may be
liable to pay the costs of health and medical care of a recipient of
medical assistance benefits, including insurers licensed pursuant to
article thirty-two or forty-three of the insurance law, or organizations
certified pursuant to article forty-four of the public health law.

(p) "Grievance". Any complaint presented by a participant or a
participant's representative for resolution through the grievance
process of a managed care provider.

(q) "Emergency medical condition". A medical or behavioral condition,
the onset of which is sudden, that manifests itself by symptoms of
sufficient severity, including severe pain, that a prudent layperson,
who possesses an average knowledge of medicine and health, could
reasonably expect the absence of immediate medical attention to result
in: (i) placing the health of the person afflicted with such condition
in serious jeopardy, or in the case of a behavioral condition placing
the health of the person or others in serious jeopardy; or (ii) serious
impairment to such person's bodily functions; or (iii) serious
dysfunction of any bodily organ or part of such person; or (iv) serious
disfigurement of such person.

(r) "Emergency care". Health care procedures, treatments or services,
including psychiatric stabilization and medical detoxification from
drugs or alcohol, that are provided for an emergency medical condition.

(s) "Existing rates". The rates paid pursuant to the most recent
executed contract between a local social services district or the state
and a managed care provider.

(t) "Managed care rating regions". The regions established by the
department of health for the purpose of setting regional premium rates
for managed care providers.

(u) "Premium group". The various demographic, gender and recipient
categories utilized for rate-setting purposes by the department of
health.

(v) "Upper payment limit". The maximum reimbursement that the
department of health may pay a managed care provider for providing or
arranging for medical services to participants in a managed care program
in accordance with the federal social security act and regulations
promulgated thereunder.

(x) "Persons with serious mental illness". Individuals who meet
criteria established by the commissioner of mental health, which shall
include persons who have a designated diagnosis of mental illness under
the most recent edition of the diagnostic and statistical manual of
mental disorders, and (i) whose severity and duration of mental illness
results in substantial functional disability or (ii) who require mental
health services on more than an incidental basis.

(y) "Children and adolescents with serious emotional disturbances".
Individuals under eighteen years of age who meet criteria established by
the commissioner of mental health, which shall include children and
adolescents who have a designated diagnosis of mental illness under the
most recent edition of the diagnostic and statistical manual of mental
disorders, and (i) whose severity and duration of mental illness results
in substantial functional disability or (ii) who require mental health
services on more than an incidental basis.

(z) "Credentialed alcoholism and substance abuse counselor (CASAC)".
An individual credentialed by the office of alcoholism and substance
abuse services in accordance with applicable regulations of the
commissioner of alcoholism and substance abuse services.

2. (a) The commissioner of health, in cooperation with the
commissioner and the commissioners of the responsible special care
agencies shall establish managed care programs, under the medical
assistance program, in accordance with applicable federal law and
regulations. The commissioner of health, in cooperation with the
commissioner, is authorized and directed, subject to the approval of the
director of the state division of the budget, to apply for federal
waivers when such action would be necessary to assist in promoting the
objectives of this section.

(b) The commissioner of health has authority to allow social services
districts to seek an exemption from this section for up to two years if
the social services district can demonstrate and the commissioner of
health and the commissioner of responsible special care agencies concurs
that the district has insufficient capacity to participate in the
program. An exemption under this paragraph may be renewed for additional
two year periods.

(c) The commissioner of health, jointly with the commissioner of
mental health and the commissioner of alcoholism and substance abuse
services shall be authorized to establish special needs managed care
plans, under the medical assistance program, in accordance with
applicable federal law and regulations. The commissioner of health, in
cooperation with such commissioners, is authorized, subject to the
approval of the director of the division of the budget, to apply for
federal waivers when such action would be necessary to assist in
promoting the objectives of this section. With regard to such special
needs managed care plans, in addition to the applicable requirements
established in this section, such commissioners shall jointly establish
standards and requirements to:

(i) ensure that any special needs managed care plan shall have an
adequate network of providers to meet the behavioral health and health
needs of enrollees, and shall review the adequacy prior to approval of
any special needs managed care plan, and upon contract renewal or
expansion. To the extent that the network has been determined to meet
standards set forth in subdivision five of section four thousand four
hundred three of the public health law, such network shall be deemed
adequate;

(ii) ensure that any special needs managed care plan shall make level
of care and coverage determinations utilizing evidence-based tools or
guidelines designed to address the behavioral health needs of enrollees;

(iii) ensure sufficient access to behavioral health and health
services for eligible enrollees by establishing and monitoring
penetration rates of special needs managed care plans; and

(iv) establish standards to encourage the use of services, products
and care recommended, ordered or prescribed by a provider to
sufficiently address the behavioral health and health services needs of
enrollees; and monitor the application of such standards to ensure that
they sufficiently address the behavioral health and health services
needs of enrollees.

3. (a) Every person eligible for or receiving medical assistance under
this article, who resides in a social services district providing
medical assistance, which has implemented the state's managed care
program shall participate in the program authorized by this section.
Provided, however, that participation in a comprehensive HIV special
needs plan also shall be in accordance with article forty-four of the
public health law and participation in a special needs managed care plan
shall also be in accordance with article forty-four of the public health
law and article thirty-one of the mental hygiene law.

(d) Until such time as program features and reimbursement rates are
approved by the commissioner of health, in consultation with the
commissioners of the office of mental health, the office for people with
developmental disabilities, the office of children and family services,
and the office of alcoholism and substance abuse services, as
appropriate, the following services shall not be provided to medical
assistance recipients through managed care programs established pursuant
to this section, and shall continue to be provided outside of managed
care programs and in accordance with applicable reimbursement
methodologies; provided, however, that no medical assistance recipient
shall be required to obtain services that are certified, funded,
authorized or approved by the commissioner of the office for people with
developmental disabilities through a managed care program until the
program features approved by the commissioner of health, in consultation
with the commissioner of the office for people with developmental
disabilities, include features for habilitation services as defined in
paragraph c of subdivision one of section forty-four hundred three-g of
the public health law:

(i) day treatment services provided to individuals with developmental
disabilities;

(ii) comprehensive medicaid case management services provided to
individuals with developmental disabilities;

(iii) services provided pursuant to article eighty-nine of the
education law;

(iv) mental health services provided by a certified voluntary
free-standing day treatment program where such services are provided in
conjunction with educational services authorized in an individualized
education program in accordance with regulations promulgated pursuant to
article eighty-nine of the education law;

(v) long term services as determined by the commissioner of the office
for people with developmental disabilities, provided to individuals with
developmental disabilities at facilities licensed pursuant to article
sixteen of the mental hygiene law or clinics serving individuals with
developmental disabilities at facilities licensed pursuant to article
twenty-eight of the public health law;

(vi) TB directly observed therapy;

(vii) AIDS adult day health care;

(viii) HIV COBRA case management; and

(ix) other services as determined by the commissioner of health.

(d-1) Services provided pursuant to title two-A of article twenty-five
of the public health law shall not be provided to medical assistance
recipients through managed care programs established pursuant to this
section, and shall continue to be provided outside of managed care
programs and in accordance with applicable reimbursement methodologies.

(d-2) Services provided pursuant to waivers, granted pursuant to
subsection (c) of section 1915 of the federal social security act, to
persons suffering from traumatic brain injuries or qualifying for
nursing home diversion and transition services, shall not be provided to
medical assistance recipients through managed care programs until at
least January first, two thousand twenty-six.

** (d-3) Services provided in school-based health centers shall not be
provided to medical assistance recipients through managed care programs
established pursuant to this section until at least April first, two
thousand twenty-three, and shall continue to be provided outside of
managed care programs.

** NB Repealed April 1, 2023

(e) The following categories of individuals may be required to enroll
with a managed care program when program features and reimbursement
rates are approved by the commissioner of health and, as appropriate,
the commissioners of the office of mental health, the office for people
with developmental disabilities, the office of children and family
services, and the office of alcoholism and substance abuse services:

(i) an individual dually eligible for medical assistance and benefits
under the federal Medicare program; provided, however, nothing herein
shall: (a) require an individual enrolled in a managed long term care
plan, pursuant to section forty-four hundred three-f of the public
health law, to disenroll from such program; or (b) make enrollment in a
Medicare managed care plan a condition of the individual's participation
in the managed care program pursuant to this section, or affect the
individual's entitlement to payment of applicable Medicare managed care
or fee for service coinsurance and deductibles by the individual's
managed care provider.

(ii) an individual eligible for supplemental security income;

(iii) HIV positive individuals;

(iv) persons with serious mental illness and children and adolescents
with serious emotional disturbances, as defined in section forty-four
hundred one of the public health law;

(v) a person receiving services provided by a residential alcohol or
substance abuse program or facility for the developmentally disabled;

(vi) a person receiving services provided by an intermediate care
facility for the developmentally disabled or who has characteristics and
needs similar to such persons;

(vii) a person with a developmental or physical disability who
receives home and community-based services or care-at-home services
through a demonstration waiver under section eleven hundred fifteen of
the federal social security act, existing waivers under section nineteen
hundred fifteen (c) of the federal social security act, or who has
characteristics and needs similar to such persons;

(viii) a person who is eligible for medical assistance pursuant to
subparagraph twelve or subparagraph thirteen of paragraph (a) of
subdivision one of section three hundred sixty-six of this title;

(ix) a person receiving services provided by a long term home health
care program, or a person receiving inpatient services in a
state-operated psychiatric facility or a residential treatment facility
for children and youth;

(x) certified blind or disabled children living or expected to be
living separate and apart from the parent for thirty days or more;

(xi) residents of nursing facilities;

(xii) a foster child in the placement of a voluntary agency or in the
direct care of the local social services district;

(xiii) a person or family that is homeless;

(xiv) individuals for whom a managed care provider is not
geographically accessible so as to reasonably provide services to the
person. A managed care provider is not geographically accessible if the
person cannot access the provider's services in a timely fashion due to
distance or travel time;

(xv) a person eligible for Medicare participating in a capitated
demonstration program for long term care;

(xvi) an infant living with an incarcerated mother in a state or local
correctional facility as defined in section two of the correction law;

(xvii) a person who is expected to be eligible for medical assistance
for less than six months;

(xviii) a person who is eligible for medical assistance benefits only
with respect to tuberculosis-related services;

(xix) individuals receiving hospice services at time of enrollment;
provided, however, that this clause shall not be construed to require an
individual enrolled in a managed long term care plan or another care
coordination model, who subsequently elects hospice, to disenroll from
such program;

(xx) a person who has primary medical or health care coverage
available from or under a third-party payor which may be maintained by
payment, or part payment, of the premium or cost sharing amounts, when
payment of such premium or cost sharing amounts would be cost-effective,
as determined by the local social services district;

(xxi) a person receiving family planning services pursuant to
subparagraph six of paragraph (b) of subdivision one of section three
hundred sixty-six of this title;

(xxii) a person who is eligible for medical assistance pursuant to
paragraph (d) of subdivision four of section three hundred sixty-six of
this title;

(xxiii) individuals with a chronic medical condition who are being
treated by a specialist physician that is not associated with a managed
care provider in the individual's social services district; and

(xxiv) Native Americans.

4. The managed care program shall provide participants access to
comprehensive and coordinated health care delivered in a cost effective
manner consistent with the following provisions:

(a) (i) a managed care provider shall arrange for access to and
enrollment of primary care practitioners and other medical services
providers. Each managed care provider shall possess the expertise and
sufficient resources to assure the delivery of quality medical care to
participants in an appropriate and timely manner and may include
physicians, nurse practitioners, county health departments, providers of
comprehensive health service plans licensed pursuant to article
forty-four of the public health law, and hospitals and diagnostic and
treatment centers licensed pursuant to article twenty-eight of the
public health law or otherwise authorized by law to offer comprehensive
health services or facilities licensed pursuant to articles sixteen,
thirty-one and thirty-two of the mental hygiene law.

(ii) provided, however, if a major public hospital, as defined in the
public health law, is designated by the commissioner of health as a
managed care provider in a social services district the commissioner of
health shall designate at least one other managed care provider which is
not a major public hospital or facility operated by a major public
hospital; and

(iii) under a managed care program, not all managed care providers
must be required to provide the same set of medical assistance services.
The managed care program shall establish procedures through which
participants will be assured access to all medical assistance services
to which they are otherwise entitled, other than through the managed
care provider, where:

(A) the service is not reasonably available directly or indirectly
from the managed care provider,

(B) it is necessary because of emergency or geographic unavailability,
or

(C) the services provided are family planning services; or

(D) the services are dental services and are provided by a diagnostic
and treatment center licensed under article twenty-eight of the public
health law which is affiliated with an academic dental center and which
has been granted an operating certificate pursuant to article
twenty-eight of the public health law to provide such dental services.
Any diagnostic and treatment center providing dental services pursuant
to this clause shall prior to June first of each year report to the
governor, temporary president of the senate and speaker of the assembly
on the following: the total number of visits made by medical assistance
recipients during the immediately preceding calendar year; the number of
visits made by medical assistance recipients during the immediately
preceding calendar year by recipients who were enrolled in managed care
programs; the number of visits made by medical assistance recipients
during the immediately preceding calendar year by recipients who were
enrolled in managed care programs that provide dental benefits as a
covered service; and the number of visits made by the uninsured during
the immediately preceding calendar year; or

(E) the services are optometric services, as defined in article one
hundred forty-three of the education law, and are provided by a
diagnostic and treatment center licensed under article twenty-eight of
the public health law which is affiliated with the college of optometry
of the state university of New York and which has been granted an
operating certificate pursuant to article twenty-eight of the public
health law to provide such optometric services. Any diagnostic and
treatment center providing optometric services pursuant to this clause
shall prior to June first of each year report to the governor, temporary
president of the senate and speaker of the assembly on the following:
the total number of visits made by medical assistance recipients during
the immediately preceding calendar year; the number of visits made by
medical assistance recipients during the immediately preceding calendar
year by recipients who were enrolled in managed care programs; the
number of visits made by medical assistance recipients during the
immediately preceding calendar year by recipients who were enrolled in
managed care programs that provide optometric benefits as a covered
service; and the number of visits made by the uninsured during the
immediately preceding calendar year; or

(E-1) the services are vision care services rendered to a student at a
school based health center approved by the commissioner pursuant to this
clause. The commissioner may approve up to five pilot programs at school
based health centers in partnership with a charitable foundation that
agrees to provide free of charge eyeglass frames and lenses at the
centers pursuant to a memorandum of agreement approved by the
commissioner. The commissioner may approve the rate for such vision care
services at the rate for such services when provided by a federally
qualified health center or when provided by another entity licensed
pursuant to article twenty-eight of the public health law and eligible
for the ambulatory patient group rate approved for vision care services
by the commissioner; or

(F) other services as defined by the commissioner of health.

(b) Participants shall select a managed care provider from among those
designated under the managed care program, provided, however, a
participant shall be provided with a choice of no less than two managed
care providers. Notwithstanding the foregoing, a local social services
district designated a rural area as defined in 42 U.S.C. 1395ww may
limit a participant to one managed care provider, if the commissioner
and the local social services district find that only one managed care
provider is available. A managed care provider in a rural area shall
offer a participant a choice of at least three primary care
practitioners and permit the individual to obtain a service or seek a
provider outside of the managed care network where such service or
provider is not available from within the managed care provider network.

(c) Participants shall select a primary care practitioner from among
those designated by the managed care provider. In all districts,
participants shall be provided with a choice of no less than three
primary care practitioners. In the event that a participant does not
select a primary care practitioner, the participant's managed care
provider shall select a primary care practitioner for the participant,
taking into account geographic accessibility.

(d) For all other medical services, except as provided in paragraph
(c) of this subdivision, if a sufficient number of medical service
providers are available, a choice shall be offered.

(e) (i) In any social services district which has not implemented a
mandatory managed care program pursuant to this section, the
commissioner of health shall establish marketing and enrollment
guidelines, including but not limited to regulations governing
face-to-face marketing and enrollment encounters between managed care
providers and recipients of medical assistance and locations for such
encounters. Such regulations shall prohibit, at a minimum, telephone
cold-calling and door-to-door solicitation at the homes of medical
assistance recipients. The regulations shall also require the
commissioner of health to approve any local district marketing
guidelines. Managed care providers shall be permitted to assist
participants in completion of enrollment forms at approved health care
provider sites and other approved locations. In no case may an emergency
room be deemed an approved location. Upon enrollment, participants will
sign an attestation that: they have been informed that managed care is a
voluntary program; participants have a choice of managed care providers;
participants have a choice of primary care practitioners; and
participants must exclusively use their primary care practitioner and
plan providers except as otherwise provided in this section including
but not limited to the exceptions listed in subparagraph (iii) of
paragraph (a) of this subdivision. Managed care providers must submit
enrollment forms to the local department of social services. The local
department of social services will provide or arrange for an audit of
managed care provider enrollment forms; including telephone contacts to
determine if participants were provided with the information required by
this subparagraph. The commissioner of health may suspend or curtail
enrollment or impose sanctions for failure to appropriately notify
clients as required in this subparagraph.

(ii) In any social services district which has implemented a mandatory
managed care program pursuant to this section, the requirements of this
subparagraph shall apply to the extent consistent with federal law and
regulations. The department of health, may contract with one or more
independent organizations to provide enrollment counseling and
enrollment services, for participants required to enroll in managed care
programs, for each social services district requesting the services of
an enrollment broker. To select such organizations, the department of
health shall issue a request for proposals (RFP), shall evaluate
proposals submitted in response to such RFP and, pursuant to such RFP,
shall award a contract to one or more qualified and responsive
organizations. Such organizations shall not be owned, operated, or
controlled by any governmental agency, managed care provider, or medical
services provider.

(iii) Such independent organizations shall develop enrollment guides
for participants which shall be approved by the department of health
prior to distribution.

(iv) Local social services districts or enrollment organizations
through their enrollment counselors shall provide participants with the
opportunity for face to face counseling including individual counseling
upon request of the participant. Local social services districts or
enrollment organizations through their enrollment counselors shall also
provide participants with information in a culturally and linguistically
appropriate and understandable manner, in light of the participant's
needs, circumstances and language proficiency, sufficient to enable the
participant to make an informed selection of a managed care provider.
Such information shall include, but shall not be limited to: how to
access care within the program; a description of the medical assistance
services that can be obtained other than through a managed care
provider; the available managed care providers and the scope of services
covered by each; a listing of the medical services providers associated
with each managed care provider; the participants' rights within the
managed care program; and how to exercise such rights. Enrollment
counselors shall inquire into each participant's existing relationships
with medical services providers and explain whether and how such
relationships may be maintained within the managed care program. For
enrollments made during face to face counseling, if the participant has
a preference for particular medical services providers, enrollment
counselors shall verify with the medical services providers that such
medical services providers whom the participant prefers participate in
the managed care provider's network and are available to serve the
participant.

(v) Upon delivery of the pre-enrollment information, the local
district or the enrollment organization shall certify the participant's
receipt of such information. Upon verification that the participant has
received the pre-enrollment education information, a managed care
provider, a local district or the enrollment organization may enroll a
participant into a managed care provider. Managed care providers must
submit enrollment forms to the local department of social services. Upon
enrollment, participants will sign an attestation that they have been
informed that: participants have a choice of managed care providers;
participants have a choice of primary care practitioners; and, except as
otherwise provided in this section, including but not limited to the
exceptions listed in subparagraph (iii) of paragraph (a) of this
subdivision, participants must exclusively use their primary care
practitioners and plan providers. The commissioner of health may suspend
or curtail enrollment or impose sanctions for failure to appropriately
notify clients as required in this subparagraph.

(vi) Enrollment counselors or local social services districts shall
further inquire into each participant's health status in order to
identify physical or behavioral conditions that require immediate
attention or continuity of care, and provide to participants information
regarding health care options available to persons with HIV and other
illnesses or conditions under the managed care program. Any information
disclosed to counselors shall be kept confidential in accordance with
applicable provisions of the public health law, and as appropriate, the
mental hygiene law.

(vii) Any marketing materials developed by a managed care provider
shall be approved by the department of health or the local social
services district, and the commissioner of mental health and the
commissioner of alcoholism and substance abuse services, where
appropriate, within sixty days prior to distribution to recipients of
medical assistance. All marketing materials shall be reviewed within
sixty days of submission.

(viii) In any social services district which has implemented a
mandatory managed care program pursuant to this section, the
commissioner of health shall establish marketing and enrollment
guidelines, including but not limited to regulations governing
face-to-face marketing and enrollment encounters between managed care
providers and recipients of medical assistance and locations for such
encounters. Such regulations shall prohibit, at a minimum, telephone
cold-calling and door-to-door solicitation at the homes of medical
assistance recipients. The regulations shall also require the
commissioner of health to approve any local district marketing
guidelines.

(f) (i) Participants shall choose a managed care provider at the time
of application for medical assistance; if the participant does not
choose such a provider the commissioner shall assign such participant to
a managed care provider in accordance with subparagraphs (ii), (iii),
(iv) and (v) of this paragraph. Participants already in receipt of
medical assistance shall have no less than thirty days from the date
selected by the district to enroll in the managed care program to select
a managed care provider and shall be provided with information to make
an informed choice. Where a participant has not selected such a provider
the commissioner of health shall assign such participant to a managed
care provider which, if appropriate, may be a special needs managed care
plan, taking into account capacity and geographic accessibility. The
commissioner may after the period of time established in subparagraph
(ii) of this paragraph assign participants to a managed care provider
taking into account quality performance criteria and cost. Provided
however, cost criteria shall not be of greater value than quality
criteria in assigning participants.

(ii) The commissioner may assign participants pursuant to such
criteria on a weighted basis, provided however that for twelve months
following implementation of a mandatory program, pursuant to a federal
waiver, twenty-five percent of the participants that do not choose a
managed care provider shall be assigned to managed care providers that
satisfy the criteria set forth in subparagraph (i) of this paragraph,
and are controlled by, sponsored by, or otherwise affiliated through a
common governance or through a parent corporation with, one or more
private not-for-profit or public general hospitals or diagnostic and
treatment centers licensed pursuant to article twenty-eight of the
public health law.

(iii) For twelve months following the twelve months described in
subparagraph (ii) of this paragraph twenty-two and one-half percent of
the participants that do not choose a managed care provider shall be
assigned to managed care providers, that satisfy the criteria set forth
in subparagraph (i) of this paragraph and are controlled by, sponsored
by, or otherwise affiliated through a common governance or through a
parent corporation with, one or more private not-for-profit or public
general hospitals or diagnostic and treatment centers licensed pursuant
to article twenty-eight of the public health law.

(iv) For twelve months following the twelve months described in
subparagraph (iii) of this paragraph twenty percent of the participants
that do not choose a managed care provider shall be assigned equally
among each of the managed care providers, that satisfy the criteria set
forth in subparagraph (i) of this paragraph and are controlled by,
sponsored by, or otherwise affiliated through a common governance or
through a parent corporation with one or more private not-for-profit or
public general hospitals or diagnostic and treatment centers licensed
pursuant to article twenty-eight of the public health law.

(v) The commissioner shall assign all participants not otherwise
assigned to a managed care plan pursuant to subparagraphs (ii), (iii)
and (iv) of this paragraph equally among each of the managed care
providers that meet the criteria established in subparagraph (i) of this
paragraph; provided, however, that the commissioner shall assign
individuals meeting the criteria for enrollment in a special needs
managed care plan to such plan or plans where available.

(g) If another managed care provider is available, participants may
change such provider or plan without cause within thirty days of
notification of enrollment or the effective date of enrollment,
whichever is later with a managed care provider by making a request of
the local social services district except that such period shall be
forty-five days for participants who have been assigned to a provider by
the commissioner of health. However, after such thirty or forty-five day
period, whichever is applicable, a participant may be prohibited from
changing managed care providers more frequently than once every twelve
months, as permitted by federal law except for good cause as determined
by the commissioner of health through regulations.

(h) If another medical services provider is available, a participant
may change his or her provider of medical services (including primary
care practitioners) without cause within thirty days of the
participant's first appointment with a medical services provider by
making a request of the managed care provider. However, after that
thirty day period, no participant shall be permitted to change his or
her provider of medical services other than once every six months except
for good cause as determined by the commissioner through regulations.

(i) A managed care provider requesting a disenrollment shall not
disenroll a participant without the prior approval of the local social
services district in which the participant resides, provided that
disenrollment from a special needs managed care plan must comply with
the standards of the commissioner of health, the commissioner of
alcoholism and substance abuse services, and the commissioner of mental
health. A managed care provider shall not request disenrollment of a
participant based on any diagnosis, condition, or perceived diagnosis or
condition, or a participant's efforts to exercise his or her rights
under a grievance process, provided however, that a managed care
provider may, where medically appropriate, request permission to refer
participants to a managed care provider that is a special needs managed
care plan or a comprehensive HIV special needs plan after consulting
with such participant and upon obtaining his/her consent to such
referral, and provided further that a special needs managed care plan
may, where clinically appropriate, disenroll individuals who no longer
require the level of services provided by a special needs managed care
plan.

(j) A managed care provider shall be responsible for providing or
arranging for medical assistance services and assisting participants in
the prudent selection of such services, including but not limited to:

(1) management of the medical and health care needs of participants by
the participant's designated primary care practitioners or group of
primary care practitioners to assure that all services provided under
the managed care program and which are found to be necessary are made
available in a timely manner, in accordance with prevailing standards of
professional medical practice and conduct; and

(2) use of appropriate patient assessment criteria to ensure that all
participants are provided with appropriate services, including special
care;

(3) implementation of procedures, consistent with the requirements of
paragraph (c) of subdivision six of section forty-four hundred three of
the public health law for managing the care of participants requiring
special care which may include the use of special case managers or the
designation of a specialist as a primary care practitioner by a
participant requiring special care on more than an incidental basis;

(4) implementation of procedures, consistent with the requirements of
paragraph (b) of subdivision six of section forty-four hundred three of
the public health law to permit the use of standing referrals to
specialists and subspecialists for participants who require the care of
such practitioners on a regular basis; and

(5) referral, coordination, monitoring and follow-up with regard to
other medical services providers as appropriate for diagnosis and
treatment, or direct provision of some or all medical assistance
services.

(k) A managed care provider shall establish appropriate utilization
and referral requirements for physicians, hospitals, and other medical
services providers including emergency room visits and inpatient
admissions.

(l) A managed care provider shall be responsible for developing
appropriate methods of managing the health care and medical needs of
homeless and other vulnerable participants to assure that all necessary
services provided under the managed care program are made available and
that all appropriate referrals and follow-up treatment are provided, in
a timely manner, in accordance with prevailing standards of professional
medical practice and conduct.

(m) A managed care provider shall provide all early periodic screening
diagnosis and treatment services, as well as interperiodic screening and
referral, to each participant under the age of twenty-one, at regular
intervals, as medically appropriate.

(n) A managed care provider shall provide or arrange, directly or
indirectly (including by referral) for the provision of comprehensive
prenatal care services to all pregnant participants in accordance with
standards adopted by the department of health.

(o) A managed care provider shall provide or arrange, directly or
indirectly, (including by referral) for the full range of covered
services to all participants, notwithstanding that such participants may
be eligible to be enrolled in a comprehensive HIV special needs plan or
special needs managed care plan.

(p) A managed care provider shall implement procedures to communicate
appropriately with participants who have difficulty communicating in
English and to communicate appropriately with visually-impaired and
hearing-impaired participants.

(q) A managed care provider shall comply with applicable state and
federal law provisions prohibiting discrimination on the basis of
disability.

(r) A managed care provider shall provide services to participants
pursuant to an order of a court of competent jurisdiction, provided
however, that such services shall be within such provider's or plan's
benefit package and are reimbursable under title xix of the federal
social security act, provided that services for a substance use disorder
shall be provided by a program licensed, certified or otherwise
authorized by the office of alcoholism and substance abuse services.

(s) Managed care providers shall be provided with the date of
recertification for medical assistance of each of their enrolled
participants in conjunction with the monthly enrollment information
conveyed to managed care providers.

(t) Prospective enrollees shall be advised, in written materials
related to enrollment, to verify with the medical services providers
they prefer, or have an existing relationship with, that such medical
services providers participate in the selected managed care provider's
network and are available to serve the participant.

(u) A managed care provider that provides coverage for prescription
drugs shall permit each participant to fill any mail order covered
prescription, at his or her option, at any mail order pharmacy or
non-mail-order retail pharmacy in the managed care provider network. If
the managed care provider has designated one or more pharmacies for
filling prescriptions for a particular drug or drugs, then such
prescriptions may be filled, at the participant's option, at any other
pharmacy in the network, if the network pharmacy chosen by the
participant offers to accept a price that is comparable to that of the
pharmacy designated by the managed care provider. For the purposes of
this section, "mail order pharmacy" means a pharmacy whose primary
business is to receive prescriptions by mail, telefax or through
electronic submissions, and to dispense medication to patients through
the use of the United States mail or other common or contract carrier
services, and provides any consultation with patients electronically
rather than face to face. Every non-mail-order retail pharmacy in the
managed care provider's network with respect to any prescription drug
shall be deemed to be in the managed care provider's network for every
covered prescription drug.

(v) A managed care provider must allow enrollees to access chemical
dependence treatment services from facilities certified by the office of
alcoholism and substance abuse services, even if such services are
rendered by a practitioner who would not otherwise be separately
reimbursed, including but not limited to a credentialed alcoholism and
substance abuse counselor (CASAC).

** (w) A managed care provider shall provide or arrange, directly or
indirectly, including by referral, for access to and coverage of
services provided by any national cancer institute-designated cancer
center licensed by the department of health within the managed care
provider's service area that is willing to agree to provide
cancer-related inpatient, outpatient and medical services to
participants in all managed care providers offering coverage to medical
assistance recipients in such cancer center's service area under the
prevailing terms and conditions that the managed care provider requires
of other similar providers to be included in the managed care provider's
network, provided that such terms shall include reimbursement of such
center at no less than the fee-for-service medicaid payment rate and
methodology applicable to the center's inpatient and outpatient
services.

** NB Effective January 1, 2023 and Repealed January 1, 2028

5. Managed care programs shall be conducted in accordance with the
requirements of this section and, to the extent practicable, encourage
the provision of comprehensive medical services, pursuant to this
article.

(a) The managed care program shall provide for the selection of
qualified managed care providers by the commissioner of health to
participate in the program, including comprehensive HIV special needs
plans and special needs managed care plans in accordance with the
provisions of section three hundred sixty-five-m of this title;
provided, however, that the commissioner of health may contract directly
with comprehensive HIV special needs plans consistent with standards set
forth in this section, and assure that such providers are accessible
taking into account the needs of persons with disabilities and the
differences between rural, suburban, and urban settings, and in
sufficient numbers to meet the health care needs of participants, and
shall consider the extent to which major public hospitals are included
within such providers' networks.

(b) A proposal submitted by a managed care provider to participate in
the managed care program shall:

(i) designate the geographic area to be served by the provider, and
estimate the number of eligible participants and actual participants in
such designated area;

(ii) include a network of health care providers in sufficient numbers
and geographically accessible to service program participants;

(iii) describe the procedures for marketing in the program location,
including the designation of other entities which may perform such
functions under contract with the organization;

(iv) describe the quality assurance, utilization review and case
management mechanisms to be implemented;

(v) demonstrate the applicant's ability to meet the data analysis and
reporting requirements of the program;

(vi) demonstrate financial feasibility of the program; and

(vii) include such other information as the commissioner of health may
deem appropriate.

(c) The commissioner of health shall make a determination whether to
approve, disapprove or recommend modification of the proposal.

(d) Notwithstanding any inconsistent provision of this title and
section one hundred sixty-three of the state finance law, the
commissioner of health may contract with managed care providers approved
under paragraph (b) of this subdivision, without a competitive bid or
request for proposal process, to provide coverage for participants
pursuant to this title.

(e) Notwithstanding any inconsistent provision of this title and
section one hundred forty-three of the economic development law, no
notice in the procurement opportunities newsletter shall be required for
contracts awarded by the commissioner of health, to qualified managed
care providers pursuant to this section.

(f) The care and services described in subdivision four of this
section will be furnished by a managed care provider pursuant to the
provisions of this section when such services are furnished in
accordance with an agreement with the department of health, and meet
applicable federal law and regulations.

(g) The commissioner of health may delegate some or all of the tasks
identified in this section to the local districts.

(h) Any delegation pursuant to paragraph (g) of this subdivision shall
be reflected in the contract between a managed care provider and the
commissioner of health.

6. A managed care provider shall not engage in the following
practices:

(a) use deceptive or coercive marketing methods to encourage
participants to enroll; or

(b) distribute marketing materials to recipients of medical
assistance, unless such materials are approved by the department of
health and, as appropriate, the office of mental health.

7. The department, the department of health or other agency of the
state as appropriate shall provide technical assistance at the request
of a social services district for the purpose of development and
implementation of managed care programs pursuant to this section. Such
assistance shall include but need not be limited to provision and
analysis of data, design of managed care programs and plans, innovative
payment mechanisms, and ongoing consultation. In addition, the
department and the department of health shall make available materials
to social services districts for purposes of educating persons eligible
to receive medical assistance on how their care will be provided through
managed care as required under paragraph (e) of subdivision five of this
section.

8. (a) The commissioner of health shall institute a comprehensive
quality assurance system for managed care providers that includes
performance and outcome-based quality standards for managed care.

(b) Every managed care provider shall implement internal quality
assurance systems adequate to identify, evaluate and remedy problems
relating to access, continuity and quality of care, utilization, and
cost of services, provided, however, that the commissioner shall waive
the implementation of internal quality assurance systems, where
appropriate, for managed care providers described in subparagraph (ii)
of paragraph (b) of subdivision one of this section. Such internal
quality assurance systems shall conform to the internal quality
assurance requirements imposed on health maintenance organizations
pursuant to the public health law and regulations and shall provide for:

(i) the designation of an organizational unit or units to perform
continuous monitoring of health care delivery;

(ii) the utilization of epidemiological data, chart reviews, patterns
of care, patient surveys, and spot checks;

(iii) reports to medical services providers assessing timeliness and
quality of care;

(iv) the identification, evaluation and remediation of problems
relating to access, continuity and quality of care; and

(v) a process for credentialing and recredentialing licensed
providers.

(c) The department of health, in consultation with the responsible
special care agencies, shall contract with one or more independent
quality assurance organizations to monitor and evaluate the quality of
care and services furnished by managed care providers. To select such
organization or organizations, the department of health shall issue
requests for proposals (RFP), shall evaluate proposals submitted in
response to such RFP, and pursuant to such RFP, shall award one or more
contracts to one or more qualified and responsive organizations. Such
quality assurance organizations shall evaluate and review the quality of
care delivered by each managed care provider, on at least an annual
basis. Such review and evaluation shall include compliance with the
performance and outcome-based quality standards promulgated by the
commissioner of health.

(d) Every managed care provider shall collect and submit to the
department of health, in a standardized format prescribed by the
department of health, patient specific medical information, including
encounter data, maintained by such provider for the purposes of quality
assurance and oversight. Any information or encounter data collected
pursuant to this paragraph, however, shall be kept confidential in
accordance with section forty-four hundred eight-a of the public health
law and section 33.13 of the mental hygiene law and any other applicable
state or federal law.

(e) Information collected and submitted to the department of health by
the independent quality assurance organization or managed care provider
pursuant to this subdivision shall be made available to the public,
subject to any other limitations of federal or state law regarding
disclosure thereof to third parties.

(f) Every managed care provider shall ensure that the provider
maintains a network of health care providers adequate to meet the
comprehensive health needs of its participants and to provide an
appropriate choice of providers sufficient to provide the services to
its participants by determining that:

(i) there are a sufficient number of geographically accessible
participating providers;

(ii) there are opportunities to select from at least three primary
care providers; and

(iii) there are sufficient providers in each area of specialty
practice to meet the needs of the enrolled population.

(g) The commissioner of health shall establish standards to ensure
that managed care providers have sufficient capacity to meet the needs
of their enrollees, which shall include patient to provider ratios,
travel and distance standards and appropriate waiting times for
appointments.

9. Managed care providers shall inform participants of such provider's
grievance procedure and utilization review procedures under section
forty-four hundred eight-a and article forty-nine of the public health
law. A managed care provider or local social services district, as
appropriate, shall provide notice to participants of their respective
rights to a fair hearing and aid continuing in accordance with
applicable state and federal law. Managed care providers shall provide
notice of the name, address, phone number and website of the department
of health designated independent consumer assistance program and the
independent substance use disorder and mental health ombudsman
established by section 33.27 of the mental hygiene law within notices of
adverse grievances and appeals determinations.

10. The commissioner of health shall be authorized to establish
requirements regarding provision and reimbursement of emergency care.

10-a. For managed care providers with negotiated rates of payment for
inpatient hospital services under contracts in effect on April first,
two thousand eight, that have a payment rate methodology for such
inpatient hospital services that utilizes rates calculated by the
department of health pursuant to paragraph (a) or (a-2) of subdivision
one of section twenty-eight hundred seven-c for patients under the
medical assistance program, such rate shall not include adjustments
pursuant to subdivision thirty-three of section twenty-eight hundred
seven-c of the public health law for contract periods prior to January
first, two thousand ten.

12. The commissioner, by regulation, shall provide that a participant
may withdraw from participation in a managed care program upon a showing
of good cause.

13. (a) Notwithstanding any inconsistent provisions of this section,
participation in a managed care program will not diminish a recipient's
medical assistance eligibility or the scope of available medical
services to which he or she is entitled. Once a program is implemented
by or in the district in accordance with this section, medical
assistance for persons who require such assistance, who are eligible for
or in receipt of such assistance in the district and who are covered by
the program shall be limited to payment of the cost of care, services
and supplies covered by the managed care program, only when furnished,
prescribed, ordered or approved by a managed care provider, mental
health special needs plan or comprehensive HIV special needs plan and
otherwise under the program, together with the costs of medically
necessary medical and remedial care, services or supplies which are not
available to participants under the program, but which would otherwise
be available to such persons under this title and the regulations of the
department provided, however, that the program may contain provision for
payment to be made for non-emergent care furnished in hospital emergency
rooms consistent with subdivision ten of this section.

(b) Notwithstanding any inconsistent provision of law, payment for
claims for services as specified in paragraph (a) of this subdivision
furnished to eligible persons under this title, who are enrolled in a
managed care program pursuant to this section and section three hundred
sixty-four-f of this title or other comprehensive health services plans,
shall not be made when such services are the contractual responsibility
of a managed care provider but are provided by another medical services
provider contrary to the managed care plan.

14. The commissioner of health is authorized and directed, subject to
the approval of the director of the division of budget, to make grants
to social services districts to aid in the planning and development of
managed care programs. The total amount expended pursuant to this
section shall not exceed the amount appropriated for such purposes in
any fiscal year.

15. The managed medical care demonstration program advisory council is
abolished.

16. Any waiver application to the federal department of health and
human services pursuant to this article and any amendments to such
application shall be a public document.

17. (a) The provisions of this section regarding participation of
persons receiving family assistance and supplemental security income in
managed care programs shall be effective if, and as long as, federal
financial participation is available for expenditures for services
provided pursuant to this section.

(b) The provisions of this section regarding the furnishing of health
and behavioral health services through a special needs managed care plan
shall be effective if, and as long as, federal financial participation
is available for expenditures for services provided by such plans
pursuant to this section.

18. (a) The department of health may, where not inconsistent with the
rate setting authority of other state agencies and subject to approval
of the director of the division of the budget, develop reimbursement
methodologies and fee schedules for determining the amount of payment to
be made to managed care providers under the managed care program. Such
reimbursement methodologies and fee schedules may include provisions for
payment of managed care fees and capitation arrangements.

(b) The department of health in consultation with organizations
representing managed care providers shall select an independent actuary
to review any such reimbursement rates. Such independent actuary shall
review and make recommendations concerning appropriate actuarial
assumptions relevant to the establishment of rates including but not
limited to the adequacy of the rates in relation to the population to be
served adjusted for case mix, the scope of services the plans must
provide, the utilization of services and the network of providers
necessary to meet state standards. The independent actuary shall issue a
report no later than December thirty-first, nineteen hundred
ninety-eight and annually thereafter. Such report shall be provided to
the governor, the temporary president and the minority leader of the
senate and the speaker and the minority leader of the assembly. The
department of health shall assess managed care providers under the
managed care program on a per enrollee basis to cover the cost of such
report.

* (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.

* NB There are 2 par (c)'s

* (c) 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.

* NB There are 2 par (c)'s

(d) The department of health shall annually provide to the temporary
president of the senate and the speaker of the assembly the annual
Medicaid managed care operating reports submitted to the department from
managed care plans that contract with the state to manage services
provided under the Medicaid program.

(e) Increased rates, terms or scope of payment for behavioral health
services under this title, where payment is made by a managed care
provider under this section, as a result of a rate, coverage or other
change made pursuant to a law, regulation, rule or official guidance,
shall be deemed in effect on the same date that such change would have
taken effect if payment were made other than by the managed care
provider. Where payment is not made as of the effective date, the
managed care provider shall make retroactive payments to the appropriate
service providers.

19. (a) The commissioner of health, in consultation with the
commissioner, shall promulgate such regulations as are necessary to
implement the provisions of this section provided, however, that the
provisions of this subdivision shall not limit specific actions taken by
the department of health or the department in order to ensure federal
financial participation.

20. Upon a determination that a participant appears to be suitable for
admission to a comprehensive HIV special needs plan or a special needs
managed care plan, a managed care provider shall inform the participant
of the availability of such plans, where available and appropriate.

21. (a) An amount equal to seven million dollars together with any
matching federal and local government funds shall be made available for
rate adjustments for managed care providers whose rates were set under
the competitive bidding process. Such adjustment shall be made in
accordance with this paragraph.

(i) Such amount shall be allocated by the department of health among
the managed care rating regions based on each region's percentage of
statewide Medicaid managed care enrollment as of January first, nineteen
hundred ninety-seven excluding from such calculation enrollment in local
social services districts that did not participate in the competitive
bidding process.

(ii) From among the funds allocated in a managed care rating region,
the department of health shall adjust the existing rates paid to managed
care providers for each premium group for the period from January first,
nineteen hundred ninety-seven through March thirty-first, nineteen
hundred ninety-eight in a manner that raises the rates of all managed
care providers in the region to the highest uniform percentage of the
upper payment limit possible based on the funds available; provided,
however, that no managed care provider's rate for any premium group
shall be reduced as a result of such adjustment. For the purpose of
calculating appropriate rate increases under this subparagraph, the
department of health shall assume that, for the entire period between
January first, nineteen hundred ninety-seven and March thirty-first,
nineteen hundred ninety-eight, enrollment in each premium group shall be
equal to enrollment in the premium group as of July first, nineteen
hundred ninety-seven.

(b) In addition to the increases made available in paragraph (a) of
this subdivision for the period beginning January first, nineteen
hundred ninety-seven through March thirty-first, nineteen hundred
ninety-eight, an additional ten million dollars, together with any
matching federal and local government funds, shall be added to provide a
uniform percentage increase, based on July first, nineteen hundred
ninety-seven enrollment to the existing rates paid for all premium
groups to all managed care providers whose rates were set by the
competitive bidding process.

(c) In addition to the increases made available in paragraphs (a) and
(b) of this subdivision for the period beginning January first, nineteen
hundred ninety-seven through March thirty-first, nineteen hundred
ninety-eight, an additional amount equal to three million dollars
together with any matching federal and local government funds, shall be
made available to be added to the rates of health plans operating in
geographic areas where capacity is insufficient to allow attainment of
enrollment goals consistent with the federal 1115 waiver known as the
Partnership Plan. Such amount shall be distributed subject to a
demonstration to the commissioner's satisfaction that the plan has
executed a contract amendment providing for an increase in enrollment
proportional to the size of the plan and the remaining unenrolled
population in the county. In evaluating the plan's demonstration, the
commissioner shall consider the degree to which the plan has increased
the number of primary or specialty care practitioners or diagnostic and
treatment centers in its network or whether the additional rate increase
would permit the plan to generate greater enrollments while continuing
to meet the financial requirements of the public health law or the
insurance law whichever is applicable and regulations promulgated
pursuant thereto.

Any amount identified in this paragraph remaining uncommitted by
December thirty-first, nineteen hundred ninety-seven shall be
distributed in a manner consistent with paragraph (b) of this
subdivision.

(d) A plan shall be eligible for payments pursuant to paragraphs (a),
(b) and (c) of this subdivision for such periods as the plan has a
contract with one or more social services districts; provided, however
that the plan has a contract, or has made a good faith effort to enter
into a contract, in that district effective through March thirty-first,
nineteen hundred ninety-eight.

(e) For the period from April first, nineteen hundred ninety-eight
through March thirty-first, nineteen hundred ninety-nine, the premium
rates paid by the department of health to all managed care providers
whose rates were set under the competitive bidding process shall be
equal to (i) the managed care provider's rate as of March thirty-first,
nineteen hundred ninety-eight increased by a uniform trend factor; plus,
(ii) four million dollars together with any matching federal and local
government funds to be added as a uniform percentage increase to such
provider's rate as of March thirty-first, nineteen hundred ninety-eight,
based on enrollment in the premium group as of April first, nineteen
hundred ninety-eight.

(f) For the period from April first, nineteen hundred ninety-eight
through March thirty-first, nineteen hundred ninety-nine, an additional
amount equal to four million dollars together with any matching federal
and local government funds, shall be made available for managed care
rate adjustments consistent with the criteria set forth in paragraph (c)
of this subdivision. Any amount identified in this paragraph remaining
uncommitted by December thirty-first, nineteen hundred ninety-eight
shall be added as a uniform percentage increase to the rates of all
managed care providers eligible for an increase under paragraph (e) of
this subdivision.

22. Chemung county demonstration project. (a) The legislature finds
that the particular circumstances of Chemung county warrant authorizing
this demonstration project, including the rural nature of the county,
the absence of a comprehensive medicaid managed care provider serving
the area at this time, patient care needs, and aspects of the health
care provider base.

(b) within all or part of Chemung county (referred to in this
subdivision as "the catchment area"), the department of health and the
Chemung county department of social services are authorized to conduct a
Medicaid research and demonstration project (referred to in this
subdivision as the "demonstration project") for the purpose of testing
the use of innovative administrative techniques, new reimbursement
methods, and management of care models, so as to promote more efficient
use of health resources, a healthier population and containment of
Medicaid program costs.

(c) As part of the demonstration project, the Chemung county
department of social services is authorized to contract with a managed
care provider for the purposes of, without limitation, developing and
managing a provider of care network, establishing provider payment rates
and fees, paying provider claims, providing care management services to
project participants, and managing the utilization of project services.

(d) The demonstration project shall be consistent with the provisions
of this section, except:

(i) The department may waive any rules or regulations, as necessary to
implement and consistent with this subdivision.

(ii) The demonstration project shall not be subject to:

(A) paragraph (b) of subdivision four of this section;

(B) subparagraphs (i), (ii), (iii) (v) and (viii) of paragraph (e) of
subdivision four of this section;

(C) paragraph (f) of subdivision four of this section;

(D) paragraph (g) of subdivision four of this section;

(E) subdivision five of this section; provided that in approving the
demonstration project or modifications to it, the department shall
consider the criteria in that subdivision;

(F) sections two hundred seventy-two and two hundred seventy-three of
the public health law;

(G) section three hundred sixty-five-i of this title.

(iii) Notwithstanding subdivision three of this section, participation
in the project shall be mandatory for all or any specified categories of
persons eligible for services under this title for whom the Chemung
county department of social services has fiscal responsibility pursuant
to section three hundred sixty-five of this title and who reside within
the demonstration project catchment area, as determined by the
commissioner of health; provided, however, that eligible persons who are
also beneficiaries under title XVIII of the federal social security act
and persons who reside in residential health care facilities shall not
be eligible to participate in the project.

(e)(i) Persons who are enrolled in or apply for medical assistance on
or before the date the demonstration project takes effect shall receive
sixty days written notice prior to participating in the demonstration
project, including an explanation of the demonstration project and the
participant's rights and responsibilities. Persons who apply for medical
assistance thereafter shall receive such notice at the time of applying
for medical assistance.

(ii) The demonstration project shall provide adequate services to
overcome language barriers for participants.

(iii) Participants in the demonstration project whose participation in
a managed care program would not otherwise be mandatory under
subdivision three of this section, who, at the time they enter the
demonstration project, have an established relationship with and are
receiving services from one or more medical services providers that are
not included in the demonstration project's provider network (an
"out-of-network provider"), shall be permitted to continue to receive
services from such providers until their course of treatment is
complete, or in the case of a pregnant woman, while pregnant and for
sixty days post-partum. Out-of-network providers that provide services
pursuant to this subparagraph shall be subject to the utilization review
and care management procedures prescribed by the managed care provider
and shall be reimbursed at the rate that would be paid to such providers
by the medical assistance program on a fee for service basis pursuant to
this title, and shall accept such reimbursement as payment in full.

(f) The provisions of this subdivision shall not apply unless all
necessary approvals under federal law and regulation have been obtained
to receive federal financial participation in the costs of health care
services provided pursuant to this subdivision.

(g) The commissioner of health is authorized to submit amendments to
the state plan for medical assistance and/or submit one or more
applications for waivers of the federal social security act as may be
necessary to obtain the federal approvals necessary to implement this
subdivision.

(h) The demonstration project shall terminate five years after it is
approved by the department and all necessary approvals under federal law
and regulations under paragraph (f) of this subdivision have been
obtained, unless terminated sooner by the Chemung county department of
social services.

23. (a) As a means of protecting the health, safety and welfare of
recipients, in addition to any other sanctions that may be imposed, the
commissioner, in consultation with the commissioners of the office of
mental health and the office of alcoholism and substance abuse services,
where appropriate, shall appoint temporary management of a managed care
provider upon determining that the managed care provider has repeatedly
failed to meet the substantive requirements of sections 1903(m) and 1932
of the federal Social Security Act and regulations. A hearing shall not
be required prior to the appointment of temporary management.

(b) The commissioner and/or his or her designees, which may be
individuals within the department or other individuals or entities with
appropriate knowledge and experience, may be appointed as temporary
management. The commissioner may appoint the superintendent of financial
services and/or his or her designees as temporary management of any
managed care provider which is subject to rehabilitation pursuant to
article seventy-four of the insurance law.

(c) The responsibilities of temporary management shall include
oversight of the managed care provider for the purpose of removing the
causes and conditions which led to the determination requiring temporary
management, the imposition of improvements to remedy violations and,
where necessary, the orderly reorganization, termination or liquidation
of the managed care provider.

(d) Temporary management may hire and fire managed care provider
personnel and expend managed care provider funds in carrying out the
responsibilities imposed pursuant to this subdivision.

(e) The commissioner, in consultation with the superintendent with
respect to any managed care provider subject to rehabilitation pursuant
to article seventy-four of the insurance law, may make available to
temporary management for the benefit of a managed care provider for the
maintenance of required reserves and deposits monies from such funds as
are appropriated for such purpose.

(f) The commissioner is authorized to establish in regulation
provisions for the payment of fees and expenses from funds appropriated
for such purpose for non-governmental individuals and entities appointed
as temporary management pursuant to this subdivision.

(g) The commissioner may not terminate temporary management prior to
his or her determination that the managed care provider has the
capability to ensure that the sanctioned behavior will not recur.

(h) During any period of temporary management individuals enrolled in
the managed care provider being managed may disenroll without cause.
Upon reaching a determination that requires temporary management of a
managed care provider, the commissioner shall notify all recipient
enrollees of such provider that they may terminate enrollment without
cause during the period of temporary management.

(i) The commissioner may adopt and amend rules and regulations to
effectuate the purposes and provisions of this subdivision.

24. Claims submitted to a managed care provider for payment for
medical care, services, or supplies furnished by an out-of-network
medical services provider must be submitted within fifteen months of the
date the medical care, services, or supplies were furnished to an
eligible person to be valid and enforceable against the managed care
provider. This deadline for claims submission shall not apply where the
claims submission is warranted to address findings or recommendations
identified in a state or federal audit except where such audit also
indicates that an inappropriate provider payment was solely the fault of
the out-of-network health care provider.

25. Effective January first, two thousand thirteen, notwithstanding
any provision of law to the contrary, managed care providers shall cover
medically necessary prescription drugs in the atypical antipsychotic
therapeutic class, including non-formulary drugs, upon demonstration by
the prescriber, after consulting with the managed care provider, that
such drugs, in the prescriber's reasonable professional judgment, are
medically necessary and warranted.

25-a. Effective July first, two thousand thirteen, notwithstanding any
provision of law to the contrary, managed care providers shall cover
medically necessary prescription drugs in the anti-depressant,
anti-retroviral, anti-rejection, seizure, epilepsy, endocrine,
hematologic and immunologic therapeutic classes, including non-formulary
drugs, upon demonstration by the prescriber, after consulting with the
managed care provider, that such drugs, in the prescriber's reasonable
professional judgment, are medically necessary and warranted.

26. The commissioner of health shall develop a standard prior
authorization request form or forms to be utilized by all managed care
providers for purposes of submitting a request for a utilization review
determination for coverage of prescription drug benefits under this
title. The managed care provider shall make the standard prior
authorization request form or forms available to, and shall accept it or
them from, prescribing providers in paper and electronic form.

26-a. Managed care providers shall require prior authorization of
prescriptions of opioid analgesics in excess of four prescriptions in a
thirty-day period, provided, however, that this subdivision shall not
apply if the patient is a recipient of hospice care, has a diagnosis of
cancer or sickle cell disease, or any other condition or diagnosis for
which the commissioner of health determines prior authorization is not
required.

26-b. Managed care providers shall not require prior authorization for
any buprenorphine products, methadone or long acting injectable
naltrexone for detoxification or maintenance treatment of a substance
use disorder prescribed according to generally accepted national
professional guidelines for the treatment of a substance use disorder.

26-c. Managed care providers shall not require prior authorization for
methadone, when used for opioid use disorder and administered or
dispensed in an opioid treatment program.

** 27. The commissioner of the department of health may make any
necessary amendments to a contract pursuant to this section with a
managed care provider, as defined in paragraph (b) of subdivision one of
this section, to allow such managed care provider to participate as a
qualified health plan in a state health benefit exchange established
pursuant to the federal Patient Protection and Affordable Care Act (P.L.
111-148), as amended by the federal Health Care and Education
Reconciliation Act of 2010 (P.L. 111-152).

** NB There are 2 sb 27's

** 27. (a) The centers for medicare and medicaid services has
established an initiative to align incentives between medicare and
medicaid. The goal of the initiative is to increase access to seamless,
quality programs that integrate services for the dually eligible
beneficiary as well as to achieve both state and federal health care
savings by improving health care delivery and encouraging high-quality
efficient care. In furtherance of this goal, the legislature authorizes
the commissioner of health to establish a fully integrated dual
advantage (FIDA) program.

(b) The FIDA program shall provide targeted populations of
medicare/medicaid dually eligible persons with comprehensive health
services that include the full range of medicare and medicaid covered
services, including but not limited to primary and acute care,
prescription drugs, behavioral health services, care coordination
services, and long-term supports and services, as well as other
services, through managed care providers, as defined in subdivision one
of this section, including managed long term care plans, certified
pursuant to section forty-four hundred three-f of the public health law.

(c) Under the FIDA program established pursuant to this subdivision,
up to three managed long term care plans may be authorized to
exclusively enroll individuals with developmental disabilities, as such
term is defined in section 1.03 of the mental hygiene law. The
commissioner of health may waive any of the department's regulations as
such commissioner, in consultation with the commissioner of the office
for people with developmental disabilities, deems necessary to allow
such managed long term care plans to provide or arrange for service for
individuals with developmental disabilities that are adequate and
appropriate to meet the needs of such individuals and that will ensure
their health and safety. The commissioner of the office for people with
developmental disabilities may waive any of the office for people with
developmental disabilities' regulations as such commissioner, in
consultation with the commissioner of health, deems necessary to allow
such managed long term care plans to provide or arrange for services for
individuals with developmental disabilities that are adequate and
appropriate to meet the needs of such individuals and that will ensure
their health and safety.

(d) The provisions of this subdivision shall not apply unless all
necessary approvals under federal law and regulation have been obtained
to receive federal financial participation in the costs of health care
services provided pursuant to this subdivision.

(e) The commissioner of health is authorized to submit amendments to
the state plan for medical assistance and/or submit one or more
applications for waivers of the federal social security act as may be
necessary to obtain the federal approvals necessary to implement this
subdivision.

(f) Notwithstanding any inconsistent provisions of this section and
sections one hundred twelve and one hundred sixty-three of the state
finance law, or section one hundred forty-two of the economic
development law, or any other law to the contrary, the commissioner of
health and, in the case of FIDAs authorized exclusively to enroll
persons with developmental disabilities, the commissioner of health and
the commissioner of the office for people with developmental
disabilities, may contract with FIDAs approved under this section
without a competitive bid or request for proposal process, are
authorized to enter into a contract or contracts under this section,
provided, however, that:

(i) the department of health shall post on its website, for a period
of no less than thirty days:

(A) a description of the proposed services to be provided pursuant to
the contract or contracts;

(B) the criteria for selection of a contractor or contractors;

(C) the period of time during which a prospective contractor may seek
selection, which shall be no less than thirty days after such
information is first posted on the website; and

(D) the manner by which a prospective contractor may seek such
selection, which may include submission by electronic means;

(ii) all reasonable and responsive submissions that are received from
prospective contractors in a timely fashion shall be reviewed by the
commissioner of health or commissioners, as applicable; and

(iii) the commissioner or, in the case of FIDAs authorized exclusively
to enroll persons with developmental disabilities, the commissioner of
health and the commissioner of the office for people with developmental
disabilities, may select such contractor or contractors that, in their
discretion, have demonstrated the ability to effectively, efficiently
and economically integrate health and long term care services, and meet
the standards for a certificate of authority under the public health law
for the provision of services applicable to the type of managed long
term care plan that such contractor proposes to operate.

(g) Nothing in this section shall be construed as requiring an
individual with a developmental disability to enroll in a FIDA that is
authorized to exclusively enroll individuals with developmental
disabilities.

(h) Nothing in this section shall make enrollment in a medicare
managed care plan a condition of an individual's participation in the
FIDA program, or affect the individual's entitlement to payment of
applicable medicare managed care or fee-for-service coinsurance
deductibles by the individual's FIDA plan.

** NB There are 2 sb 27's

** 28. To the extent that any provision of this section is
inconsistent with any provision of section forty-four hundred three-g of
the public health law, such provision of this section shall not apply to
an entity authorized to operate pursuant to section forty-four hundred
three-g of the public health law.

** NB Repealed September 30, 2023

29. In the event that the department receives approval from the
Centers for Medicare and Medicaid Services to amend its 1115 waiver
known as the Partnership Plan or receives approval for a new 1115 waiver
for the purpose of reinvesting savings resulting from the redesign of
the medical assistance program, the commissioner is authorized to enter
into contracts, and/or to amend the terms of contracts awarded prior to
the effective date of this subdivision, for the purpose of assisting the
department of health with implementing projects authorized under such
waiver approval. Notwithstanding the provisions of sections one hundred
twelve and one hundred sixty-three of the state finance law, or sections
one hundred forty-two and one hundred forty-three of the economic
development law, or any contrary provision of law, contracts may be
entered or contract amendments may be made pursuant to this subdivision
without a competitive bid or request for proposal process if the term of
any such contract or contract amendment does not extend beyond March
thirty-first, two thousand nineteen; provided, however, in the case of a
contract entered into after the effective date of this subdivision,
that:

(a) The department of health shall post on its website, for a period
of no less than thirty days:

(i) A description of the proposed services to be provided pursuant to
the contract or contracts;

(ii) The criteria for selection of a contractor or contractors;

(iii) The period of time during which a prospective contractor may
seek selection, which shall be no less than thirty days after such
information is first posted on the website; and

(iv) The manner by which a prospective contractor may seek such
selection, which may include submission by electronic means;

(b) All reasonable and responsive submissions that are received from
prospective contractors in timely fashion shall be reviewed by the
commissioner of health; and

(c) The commissioner of health shall select such contractor or
contractors that, in his or her discretion, are best suited to serve the
purposes of this section.

30. Notwithstanding the provisions of section one hundred sixty-three
of the state finance law, or sections one hundred forty-two and one
hundred forty-three of the economic development law, or any contrary
provision of law, in the event that the state receives prior approval
and enhanced financial participation from the Centers for Medicaid and
Medicare Services, Administration for Children and Families and the
Federal Food and Nutrition Services for reimbursement pursuant to an
A-87 cost allocation waiver for enhanced funding for integrated
eligibility systems, the state is authorized to enter into contracts,
and/or to amend the terms of contracts awarded prior to the effective
date of this subdivision, without a competitive bid or request for
proposal process, consistent with federal requirements, for the purpose
of implementing projects authorized under such waiver amendment;
provided, however, in the case of a contract entered into after the
effective date of this subdivision, that:

(a) The office of temporary and disability assistance and the office
of general services, or another state agency, shall post on its website
and concurrently provide to the chair of the senate health committee and
the chair of the assembly health committee, for a period of no less than
thirty days:

(i) A description of the proposed services to be provided pursuant to
the contract or contracts;

(ii) The criteria for selection of a contractor or contractors;

(iii) The period of time during which a prospective contractor may
submit an offer, which shall be no less than thirty days after such
information is first posted on the website; and

(iv) The manner by which a prospective contractor may submit an offer,
which may include submission by electronic means;

(b) All responsive and reasonable offers that are received from
prospective contractors in timely fashion shall be reviewed by the
commissioner of temporary and disability assistance or other state
agency; and

(c) The commissioners of the department of health, the office of
temporary and disability assistance and the office of children and
family services, working in cooperation with the state chief information
officer and the office of general services, shall award such contract to
the contractor or contractors offer that provides the best value as such
term is defined in section one hundred sixty-three of the state finance
law, to the state. At notification the commissioner of health shall
provide this information to the chair of the senate standing health
committee and the chair of the assembly health committee.

(d) All decisions made and approaches taken pursuant to this
subdivision shall be documented in a procurement record as defined in
section one hundred sixty-three of the state finance law.

(e) In accordance with all federal advance planning document guidance
and within the parameters established by the enhanced financial
participation from the centers for Medicaid and Medicare services,
administration for children and families and the federal food and
nutrition services for reimbursement to an A-87 cost allocation waiver
for enhanced funding for integrated eligibility systems, Phase 1 will
include foundational allowable shared service components required to
successfully meet the requirements for non-MAGI Medicaid such as a
common client portal, document management, rules engines, workflow
management tools, case management, notices and training.

(f) The contract will require training to be provided at no cost to
the social services districts.

(g) The contract shall require the completion of shared service
components by the timelines necessary to receive the enhanced financial
participation from the centers for Medicaid and Medicare services,
administration for children and families and the federal food and
nutrition services for reimbursement to an A-87 cost allocation waiver.

(h) The commissioner shall provide, within thirty days of award of
such contract or contracts, the chair of the senate standing committee
on health and the chair of the assembly health committee with a report
outlining the procurement and awards.

31. (a) The commissioner shall require managed care providers under
this section, managed long-term care plans under section forty-four
hundred three-f the public health law and other appropriate long-term
service programs to adopt expedited procedures for approving personal
care services for a medical assistance recipient who requires immediate
personal care or consumer directed personal assistance services pursuant
to paragraph (e) of subdivision two of section three hundred
sixty-five-a of this title or section three hundred sixty-five-f of this
title, respectively, or other long-term care, and provide such care or
services as appropriate, pending approval by such provider or program.

32. (a) The commissioner, or for the purposes of subparagraph (iv) of
paragraph (c) of this subdivision, the Medicaid inspector general in
consultation with the commissioner, may, in his or her discretion, apply
penalties to managed care organizations subject to this section and
article forty-four of the public health law, including managed long term
care plans, for untimely or inaccurate submission of encounter data;
provided however, no penalty shall be assessed if the managed care
organization submits, in good faith, timely and accurate data and a
material amount of such data is not successfully received by the
department as a result of department system failures or technical issues
that are beyond the control of the managed care organization.

(b) The commissioner, or for the purposes of subparagraph (iv) of
paragraph (c) of this subdivision, the Medicaid inspector general in
consultation with the commissioner, shall consider the following when
determining whether to assess a penalty against a managed care
organization and the amount of such penalty:

(i) the degree to which the managed care organization submitted
inaccurate data at a category of service level and the frequency of such
inaccurate data submissions by the managed care organization;

(ii) the degree to which the managed care organization submitted
untimely data or no data and the frequency of such untimely data
submissions or failures to submit by the managed care organization; and

(iii) the timeliness of the managed care organization in curing or
correcting inaccurate or untimely data.

For purposes of this section, "encounter data" shall mean all
encounter records or adjustments to previously submitted records which
the managed care organization has received and processed from provider
encounter or claim records of all contracted services rendered to an
enrollee of the managed care organization in the current or any
preceding month. Any penalty assessed under this subdivision shall be
calculated as a percentage of the Medicaid capitated premium calculated
by the department and paid to the managed care organization.

(c) (i) Penalties assessed pursuant to this subdivision against a
managed care organization other than a managed long term care plan
certified pursuant to section forty-four hundred three-f of the public
health law shall be as follows:

(A) for encounter data submitted or resubmitted past the deadlines set
forth in the model contract, the Medicaid capitated premiums shall be
reduced by one-third percent; and

(B) for incomplete or inaccurate encounter data, evaluated at a
category of service level, that fails to conform to department developed
benchmarks for completeness and accuracy, the Medicaid capitated
premiums shall be reduced by one and one-third percent; and

(C) for submitted data that results in a rejection rate in excess of
ten percent of department developed volume benchmarks, the Medicaid
capitated premiums shall be reduced by one-third percent.

(ii) Penalties assessed pursuant to this subdivisions against a
managed long term care plan certified pursuant to section forty-four
hundred three-f of the public health law shall be as follows:

(A) for encounter data submitted or resubmitted past the deadlines set
forth in the model contract, the Medicaid capitated premiums shall be
reduced by one-quarter percent;

(B) for incomplete or inaccurate encounter data, evaluated at a
category of service level, that fails to conform to department developed
benchmarks for completeness and accuracy, the Medicaid capitated
premiums shall be reduced by one percent; and

(C) for submitted data that results in a rejection rate in excess of
ten percent of department developed volume benchmarks, the Medicaid
capitated premiums shall be reduced by one-quarter percent.

(iii) For incomplete or inaccurate encounter data, identified in the
course of an audit, investigation or review by the Medicaid inspector
general, the Medicaid capitated premiums shall be reduced by an
additional one percent.

(d) (i) Penalties under this subdivision may be applied to any and all
circumstances described in paragraph (b) of this subdivision until the
managed care organization complies with the requirements for submission
of encounter data.

(ii) No penalties for late, incomplete or inaccurate encounter data
shall be assessed against managed care organizations in addition to
those provided for in this subdivision, provided, however, that nothing
in this paragraph shall prohibit the imposition of penalties, in cases
of fraud, waste or abuse, otherwise authorized by law.

33. For services under this title provided by residential health care
facilities under article twenty-eight of the public health law, the
commissioner shall direct managed care organizations licensed under
article forty-four of the public health law, article forty-three of the
insurance law, and this section, to continue to reimburse at a benchmark
rate which is to be the fee-for-service rate calculated pursuant to
section twenty-eight hundred eight of the public health law. The
benchmark fee-for-service rate shall continue to be paid by such managed
care organizations for all services provided by residential healthcare
facilities from the effective date of this subdivision at least until
December thirty-first, two thousand twenty. The commissioner may
require, as a condition of continuing to require payment at such
benchmark rate that aggregate managed care expenditures to residential
health care facilities meet the alternative payment methodology
requirements set forth in attachment I of the New York State section
1115 medicaid redesign team waiver as approved by the centers for
medicare and medicaid services. The commissioner of health shall waive
such requirements if a sufficient number of providers, as determined by
the commissioner, suffer a financial hardship as a consequence of such
alternative payment methodology requirements, or if the commissioner
determines that such alternative payment methodologies significantly
threaten individuals' access to residential health care facility
services; such waiver may be applied on a provider-specific or
industry-wide basis. Further, such requirements may be waived, as the
commissioner determines necessary, to comply with federal rules or
regulations governing these payment methodologies.

34. For purposes of recovery of overpayments pursuant to subdivision
thirty-five of this section, any payment made pursuant to the state's
managed care program, including payments made by managed long term care
plans, shall be deemed a payment by the state's medical assistance
program, provided that this subdivision shall not permit the imposition
of a lien or recovery against property of an individual or estate on
account of medical assistance payments where recovery is made against
the individual's managed care provider or provider of medical assistance
program items or services. Provided however nothing in this subdivision
shall be construed to limit recoveries under other relevant sections of
law.

35. Recovery of overpayments from network providers. (a) Where the
Medicaid inspector general during the course of an audit, investigation,
or review, or the deputy attorney general for the Medicaid fraud control
unit during the course of an investigation or prosecution for Medicaid
fraud, identifies medical assistance overpayments made by a managed care
provider or managed long term care plan to its subcontractor or
subcontractors or provider or providers, the state shall have the right
to recover the overpayment from the subcontractor or subcontractors,
provider or providers, or the managed care provider or managed long term
care plan; provided, however, in no event shall the state duplicate the
recovery of an overpayment from a provider or subcontractor.

(b) Where the state is unsuccessful in recovering an overpayment from
the subcontractor or subcontractors or provider or providers, the
Medicaid inspector general may require the managed care provider or
managed long term care plan to recover the medical assistance
overpayment identified in paragraph (a) of this subdivision on behalf of
the state. The managed care provider or managed long term care plan
shall remit to the state the full amount of the identified overpayment
no later than six months after receiving notice of the overpayment from
the state.

36. Medicaid Program Integrity Reviews. (a) For purposes of this
subdivision, managed care provider shall also include managed long term
care plans.

(b) The Medicaid inspector general shall conduct periodic reviews of
the contractual performance of each managed care provider as it relates
to the managed care provider's program integrity obligations under its
contract with the department. The Medicaid inspector general, in
consultation with the commissioner, shall publish on its website, a list
of those contractual obligations pursuant to which the managed care
provider's program integrity performance shall be evaluated, including
benchmarks, prior to commencing any review. A Medicaid program integrity
review of a managed care provider conducted pursuant to this
subdivision, may be completed no more than annually. Reviews performed
pursuant to this subdivision shall include a review of compliance with
contractual standards which prevent fraud, waste, or abuse. Such
standards may include but are not limited to excluded providers,
restricted recipient program, reporting obligations, compliance
programs, and suspension of payments. However, if the Medicaid inspector
general determines that a subsequent review, pursuant to this
subdivision, is necessary, a second review may occur within one year.

(c) If, as a result of his or her review, the Medicaid inspector
general determines that a managed care provider is not meeting its
program integrity obligations, the Medicaid inspector general may
recover from the managed care provider up to two percent of the Medicaid
premiums paid to the managed care provider for the period under review.
Any premium recovery under this subdivision shall be a percentage of the
administrative component of the Medicaid premium calculated by the
department and may be recovered by the department in the same manner it
recovers overpayments.

(d) The managed care provider shall be entitled to receive a draft
audit report and final audit report containing the results of the
Medicaid inspector general's review. If the Medicaid inspector general
determines to recover a percentage of the premium as described in
paragraph (c) of this subdivision, the managed care provider shall be
entitled to notice and an opportunity to be heard in accordance with
section twenty-two of this chapter.

37. Managed care providers shall report to the department all sources
and amounts of income, payments, and financial benefits related to the
provision of pharmacy benefits, including, but not limited to, any
pricing discounts, rebates of any kind, inflationary payments, credits,
clawbacks, fees, grants, chargebacks, reimbursements, or other benefits
whether such income, payments, or financial benefits are received
directly by the managed care provider or passed through from a pharmacy
benefit manager or other entity. Managed care providers shall also
report to the department the amounts of any administrative fees paid to
cover the cost of providing pharmacy benefit management services. The
reporting required in this subdivision shall be supplemental to and
included with other existing reporting requirements, including but not
limited to any quarterly reporting requirements.

** 38. (a) When a patient's health care provider prescribes an opioid
dependence agent or opioid antagonist that is not on the statewide
formulary of opioid dependence agents and opioid antagonists, the
prescriber shall consult with the managed care plan to confirm that in
his or her reasonable professional judgment, the patient's clinical
condition is consistent with the criteria for approval of the
non-preferred or non-formulary drug. Such criteria shall include:

(i) the preferred drug has been tried by the patient and has failed to
produce the desired health outcomes;

(ii) the patient has tried the preferred drug and has experienced
unacceptable side effects;

(iii) the patient has been stabilized on a non-preferred drug and
transition to the preferred or formulary drug would be medically
contraindicated; or

(iv) other clinical indications identified by the committee for the
patient's use of the non-preferred drug, which shall include
consideration of the medical needs of special populations, including
children, elderly, chronically ill, persons with mental health
conditions, persons affected by HIV/AIDS and pregnant persons with a
substance use disorder.

(b) The managed care plan shall have a process for a patient, or the
patient's prescribing health care provider, to request a review for a
prescription drug that is not on the statewide formulary of opioid
dependence agents and opioid antagonists, consistent with 42 C.F.R.
438.210(d), or any successor regulation.

(c) A managed care plan's failure to comply with the requirements of
this subdivision shall be subject to a one thousand dollar fine per
violation.

** NB There are 2 sb 38's

** 38. Penalties for the submission of misstated cost reports. (a) For
purposes of this subdivision, managed care provider shall also include
managed long-term care plans.

(b) The Medicaid inspector general may, in his or her discretion and
in consultation with the commissioner, impose a penalty on a managed
care provider whose filed cost report contained a misstatement of fact
including:

(i) unsubstantiated or improper costs;

(ii) number of member months;

(iii) number of events.

For purposes of this paragraph, number of events shall include, but
not be limited to understated births or deliveries.

(c) (i) For misstatements found in subparagraph (i) of paragraph (b)
of this subdivision, the penalty shall be equal to the amount of the
misstatement multiplied by two.

(ii) For misstatements found in subparagraph (ii) of paragraph (b) of
this subdivision, the penalty shall be the amount of the premium
capitation paid by the department for the region per member month.

(iii) For misstatements found in subparagraph (iii) of paragraph (b)
of this subdivision, the penalty shall be the amount of the supplemental
capitation paid by the department for the region per member event.

(d) Any penalty imposed under this subdivision may be recovered by the
department in any manner authorized by law.

(e) The managed care provider against whom a penalty is imposed
pursuant to this subdivision shall be entitled to notice and an
opportunity to be heard in accordance with section twenty-two of this
chapter.

** NB There are 2 sb 38's

39. Medicaid fraud, waste and abuse prevention. (a) For purposes of
this subdivision, managed care provider shall also include managed
long-term care plans.

(b) Managed care providers shall adopt and implement policies and
procedures designed to detect and prevent fraud, waste and abuse. This
shall include the adoption and implementation of a compliance program as
required by section three hundred sixty-three-d of this title and the
terms of the contract between the managed care provider and the state,
and for managed care providers with an enrolled population of one
thousand or more persons in the aggregate in any given year, the
establishment of a special investigation unit which will have primary
responsibility for implementing the managed care provider's policies and
procedures to detect and prevent fraud, waste and abuse, as it relates
to the managed care provider's participation in the medical assistance
program.

(c) The managed care provider shall coordinate its fraud, waste and
abuse prevention activities with the Medicaid inspector general and the
department of health. The Medicaid inspector general, in consultation
with the department of health, may promulgate regulations establishing
standards and requirements for the operation of managed care provider
fraud, waste and abuse prevention activities, including requirements for
special investigation units. The provisions of this subdivision
notwithstanding, the managed care provider shall continue to comply with
all the requirements of section forty-four hundred fourteen of the
public health law.

* NB Repealed March 31, 2026 (per ch. 165/1991)

* NB Repealed March 31, 2026 (per ch. 710/1988)