* § 4403-f. Managed long term care plans. 1. Definitions. As used in this section: (a) "Managed long term care plan" means an entity that has received a certificate of authority pursuant to this section to provide, or arrange for, health and long term care services, on a capitated basis in accordance with this section, for a population, age eighteen and over, which the plan is authorized to enroll. (b) "Eligible applicant" means an entity controlled or wholly owned by one or more of the following: a hospital as defined in subdivision one of section twenty-eight hundred one of this chapter; a home care agency licensed or certified pursuant to article thirty-six of this chapter; an entity that has received a certificate of authority pursuant to sections forty-four hundred three, forty-four hundred three-a or forty-four hundred eight-a of this article (as added by chapter six hundred thirty-nine of the laws of nineteen hundred ninety-six), or a health maintenance organization authorized under article forty-three of the insurance law; or a not-for-profit organization which has a history of providing or coordinating health care services and long term care services to the elderly and disabled. (c) "Operating demonstration" means the following entities: the chronic care management demonstration programs authorized by chapter five hundred thirty of the laws of nineteen hundred eighty-eight, chapter five hundred ninety-seven of the laws of nineteen hundred ninety-four and chapter eighty-one of the laws of nineteen hundred ninety-five as amended. (d) "Approved managed long term care demonstration" means the sites approved by the commissioner to participate in the "Evaluated Medicaid Long Term Care Capitation Program". (e) "Health and long term care services" means services including, but not limited to primary care, acute care, home and community-based and institution-based long term care and ancillary services (that shall include medical supplies and nutritional supplements) that are necessary to meet the needs of persons whom the plan is authorized to enroll. 2. Certificate of authority; form. An eligible applicant shall submit an application for a certificate of authority to operate a managed long term care plan upon forms prescribed by the commissioner. Such eligible applicant shall submit information and documentation to the commissioner which shall include, but not be limited to: (a) a description of the service area proposed to be served by the plan with projections of enrollment that will result in a fiscally sound plan; (b) a description of the proposed target population and the marketing plan; (c) a description that demonstrates the cost-effectiveness of the program as compared to the cost of services clients would otherwise have received; (d) adequate documentation of the appropriate licenses, certifications or approvals to provide care as planned, including contracts with such providers as may be necessary to provide the full complement of services required to be provided under this section. 3. Certificate of authority; approval. The commissioner shall not approve an application for a certificate of authority unless the applicant demonstrates to the commissioner's satisfaction: (a) the relative cost effectiveness to the medical assistance program when compared to other managed long term care plans proposing to serve, or serving, comparable populations; (b) that it will have in place acceptable quality-assurance mechanisms, grievance procedures, mechanisms to protect the rights ofenrollees and case management services to ensure continuity, quality, appropriateness and coordination of care; (c) that it will include an enrollment process which shall ensure that enrollment in the plan is informed and voluntary by enrollees or their representatives and a voluntary disenrollment process. The application shall include the specific grounds that would warrant involuntary disenrollment provided, however, an otherwise eligible enrollee shall not be involuntarily disenrolled on the basis of health status; (d) satisfactory evidence of the character and competence of the proposed operators and reasonable assurance that the applicant will provide high quality services to an enrolled population; (e) sufficient management systems capacity to meet the requirements of this section and the ability to efficiently process payment for covered services; (f) readiness and capability to achieve full capitation for services reimbursed pursuant to title XVIII of the federal social security act or, for an applicant designated as an eligible applicant prior to April first, two thousand seven pursuant to paragraph (d) of subdivision six of this section that has its principal place of business in Bronx county and is unable to achieve such full capitation, readiness and capability to achieve full capitation on a scheduled basis for services reimbursed pursuant to title XVIII of the federal social security act or capability and protocols for benefit coordination for services reimbursed pursuant to such title and all other applicable benefits, with such benefit coordination including, but not limited to, measures to support sound clinical decisions, reduce administrative complexity, coordinate access to services, maximize benefits available pursuant to such title and ensure that necessary care is provided; (g) readiness and capability to achieve full capitation for services reimbursed pursuant to title XIX of the federal social security act; (h) willingness and capability of taking, or cooperating in, all steps necessary to secure and integrate any potential sources of funding for services provided by the managed long term care plan, including, but not limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act, the federal older Americans act of nineteen hundred sixty-five, as amended, or any successor provisions subject to approval of the director of the state office for aging, and through financing options such as those authorized pursuant to section three hundred sixty-seven-f of the social services law; (i) that the arrangements for health and long term care services ensure the availability and accessibility of such services to the proposed enrolled population; and (j) that the applicant is financially responsible and may be expected to meet its obligations to its enrolled members. 4. Solvency. (a) The commissioner shall be responsible for evaluating, approving and regulating all matters relating to fiscal solvency, including reserves, surplus and provider contracts. The commissioner may promulgate regulations to implement this section. The commissioner, in the administration of this subdivision: (i) shall be guided by the standards which govern the fiscal solvency of a health maintenance organization, provided, however, that the commissioner shall recognize the specific delivery components, operational capacity and financial capability of the eligible applicant for a certificate of authority; (ii) shall not apply financial solvency standards that exceed those required for a health maintenance organization; and (iii) shall establish reasonable capitalization and contingent reserve requirements.(b) Standards established pursuant to this subdivision shall be adequate to protect the interests of enrollees in managed long term care plans. The commissioner shall be satisfied that the eligible applicant is financially sound, and has made adequate provisions to pay for services. 4-a. Role of the superintendent of insurance. (a) The superintendent of insurance shall determine and approve premiums in accordance with the insurance law whenever any population of enrollees not eligible under title XIX of the federal social security act is to be covered. The determination and approval of the superintendent of insurance shall relate to premiums charged to such enrollees not eligible under title XIX of the federal social security act. (b) The superintendent of insurance shall evaluate and approve any enrollee contracts whenever such enrollee contracts are to cover any population of enrollees not eligible under title XIX of the federal social security act. 5. Applicability of other laws. A managed long term care plan or approved managed long term care demonstration shall be subject to the provisions of the insurance law and regulations applicable to health maintenance organizations, this article and regulations promulgated pursuant thereto. To the extent that the provisions of this section are inconsistent with the provisions of this chapter or the provisions of the insurance law, the provisions of this section shall prevail. 6. Approval authority. (a) An applicant shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that the applicant complies with the operating requirements for a managed long term care plan under this section. The commissioner shall issue no more than fifty certificates of authority to managed long term care plans pursuant to this section. For purposes of issuance of no more than fifty certificates of authority, such certificates shall include those certificates issued pursuant to paragraphs (b) and (c) of this subdivision. (b) An operating demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Except as otherwise expressly provided in paragraphs (d) and (e) of subdivision seven of this section, nothing in this section shall be construed to affect the continued legal authority of an operating demonstration to operate its previously approved program. (c) An approved managed long term care demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Notwithstanding any inconsistent provision of law to the contrary, all authority for the operation of approved managed long term care demonstrations which have not been issued a certificate of authority as a managed long term care plan, shall expire one year after the adoption of regulations implementing managed long term care plans. (d) The majority leader of the senate and the speaker of the assembly may each designate in writing up to fifteen eligible applicants to apply to be approved managed long term care demonstrations or plans. The commissioner may designate in writing up to eleven eligible applicants to apply to be approved managed long term care demonstrations or plans. 7. Program oversight and administration. (a)(i) The commissioner shall promulgate regulations to implement this section and to ensure the quality, appropriateness and cost-effectiveness of the services provided by managed long term care plans. The commissioner may waive rules andregulations of the department, including but not limited to, those pertaining to duplicative requirements concerning record keeping, boards of directors, staffing and reporting, when such waiver will promote the efficient delivery of appropriate, quality, cost-effective services and when the health, safety and general welfare of enrollees will not be impaired as a result of such waiver. In order to achieve managed long term care plan system efficiencies and coordination and to promote the objectives of high quality, integrated and cost effective care, the commissioner may establish a single coordinated surveillance process, allow for a comprehensive quality improvement and review process to meet component quality requirements, and require a uniform cost report. The commissioner shall require managed long term care plans to utilize quality improvement measures, based on health outcomes data, for internal quality assessment processes and may utilize such measures as part of the single coordinated surveillance process. (ii) Notwithstanding any inconsistent provision of the social services law to the contrary, the commissioner shall, pursuant to regulation, determine whether and the extent to which the applicable provisions of the social services law or regulations relating to approvals and authorizations of, and utilization limitations on, health and long term care services reimbursed pursuant to title XIX of the federal social security act, including, but not limited to, fiscal assessment requirements, are inconsistent with the flexibility necessary for the efficient administration of managed long term care plans and such regulations shall provide that such provisions shall not be applicable to enrollees or managed long term care plans, provided that such determinations are consistent with applicable federal law and regulation. (b) The commissioner shall, to the extent necessary, submit the appropriate waivers, including, but not limited to, those authorized pursuant to sections eleven hundred fifteen and nineteen hundred fifteen of the federal social security act, or successor provisions, and any other waivers necessary to achieve the purposes of high quality, integrated, and cost effective care and integrated financial eligibility policies under the medical assistance program or pursuant to title XVIII of the federal social security act. Copies of such original waiver applications shall be provided to the chairman of the senate finance committee and the chairman of the assembly ways and means committee simultaneously with their submission to the federal government. (c)(i) A managed long term care plan shall not use deceptive or coercive marketing methods to encourage participants to enroll. A managed long term care plan shall not distribute marketing materials to potential enrollees before such materials have been approved by the commissioner. (ii) The commissioner shall ensure, through periodic reviews of managed long term care plans, that enrollment was a voluntary and informed choice; such plan has only enrolled persons whom it is authorized to enroll, and plan services are promptly available to enrollees when appropriate. Such periodic reviews shall be made according to standards as determined by the commissioner in regulations. (d) Notwithstanding any provision of law, rule or regulation to the contrary, the commissioner may issue a request for proposals to carry out reviews of enrollment and assessment activities in managed long term care plans and operating demonstrations with respect to enrollees eligible to receive services under title XIX of the federal social security act to determine if enrollment meets the requirements of subparagraph (ii) of paragraph (c) of this subdivision; and that assessments of such enrollees' health, functional and other status, forthe purpose of adjusting premiums, were accurate. Evaluations shall address each bidder's ability to ensure that enrollments in such plans are promptly reviewed and that medical assistance required to be furnished pursuant to title eleven of article five of the social services law will be appropriately furnished to the recipients for whom the local commissioners are responsible pursuant to section three hundred sixty-five of such title and that plan implementation will be consistent with the proper and efficient administration of the medical assistance program and managed long term care plans. (e) The commissioner may, in his or her discretion for the purpose of protection of enrollees, impose measures including, but not limited to, bans on further enrollments and requirements for use of enrollment brokers until any identified problems are resolved to the satisfaction of the commissioner. (f) Continuation of a certificate of authority issued under this section shall be contingent upon satisfactory performance by the managed long term care plan in the delivery, continuity, accessibility, cost effectiveness and quality of the services to enrolled members; compliance with applicable provisions of this section and rules and regulations promulgated thereunder; the continuing fiscal solvency of the organization; and, federal financial participation in payments on behalf of enrollees who are eligible to receive services under title XIX of the federal social security act. (g) The commissioner shall ensure that (i) a process exists for the resolution of disputes concerning the accuracy of assessments performed pursuant to paragraphs (d) and (e) of this subdivision; and (ii) the tasks described in paragraphs (d) and (e) of this subdivision are consistently administered. (h) (i) Managed long term care plans and demonstrations may enroll eligible persons in the plan or demonstration upon the completion of a comprehensive assessment that shall include, but not be limited to, an evaluation of the medical, social and environmental needs of each prospective enrollee in such program. This assessment shall also serve as the basis for the development and provision of an appropriate plan of care for the prospective enrollee. (ii) The assessment shall be completed by a representative of the managed long term care plan or demonstration, in consultation with the prospective enrollee's health care practitioner. The commissioner shall prescribe the forms on which the assessment shall be made. (iii) The completed assessment and documentation of the enrollment shall be submitted by the managed long term care plan or demonstration to the local department of social services, or to a contractor selected pursuant to paragraph (d) of this subdivision, prior to the commencement of services under the managed long term care plan or demonstration. For purposes of reimbursement of the managed long term care plan or demonstration, if the completed assessment and documentation are submitted on or before the twentieth day of the month, the enrollment shall commence on the first day of the month following the completion and submission and if the completed assessment and documentation are submitted after the twentieth day of the month, the enrollment shall commence on the first day of the second month following submission. Enrollments conducted by a plan or demonstration shall be subject to review and audit by the department and by the local social services district or a contractor selected pursuant to paragraph (d) of this subdivision. (iv) Continued enrollment in a managed long term care plan or demonstration paid for by government funds shall be based upon a comprehensive assessment of the medical, social and environmental needsof the recipient of the services. Such assessment shall be performed at least annually by the managed long term care plan serving the enrollee. The commissioner shall prescribe the forms on which the assessment will be made. (i) The commissioner shall, upon request by a managed long term care plan, approved managed long term care demonstration, or operating demonstration, and consistent with federal regulations promulgated pursuant to the Health Insurance Portability and Accountability Act, share with such plan or demonstration the following data if it is available: (i) information concerning utilization of services and providers by each of its enrollees prior to and during enrollment, including but not limited to utilization of emergency department services, prescription drugs, and hospital and nursing facility admissions. (ii) aggregate data concerning utilization and costs for enrollees and for comparable cohorts served through the Medicaid fee-for-service program. 8. Payment rates for managed long term care plan enrollees eligible for medical assistance. The commissioner shall establish payment rates for services provided to enrollees eligible under title XIX of the federal social security act. Such payment rates shall be subject to approval by the director of the division of the budget and shall reflect savings to both state and local governments when compared to costs which would be incurred by such program if enrollees were to receive comparable health and long term care services on a fee-for-service basis in the geographic region in which such services are proposed to be provided. Payment rates shall be risk-adjusted to take into account the characteristics of enrollees, or proposed enrollees, including, but not limited to: frailty, disability level, health and functional status, age, gender, the nature of services provided to such enrollees, and other factors as determined by the commissioner. The risk adjusted premiums may also be combined with disincentives or requirements designed to mitigate any incentives to obtain higher payment categories. 9. Reports. The department shall provide an interim report to the governor, temporary president of the senate and the speaker of the assembly on or before April first, two thousand three and a final report on or before April first, two thousand six on the results of the managed long term care plans under this section. Such results shall be based on data provided by the managed long term care plans and shall include but not be limited to the quality, accessibility and appropriateness of services; consumer satisfaction; the mean and distribution of impairment measures of the enrollees by payor for each plan; the current method of calculating premiums and the cost of comparable health and long term care services provided on a fee-for-service basis for enrollees eligible for services under title XIX of the federal social security act; and the results of periodic reviews of enrollment levels and practices. Such reports shall provide data on the demographic and clinical characteristics of enrollees, voluntary and involuntary disenrollments from plans, and utilization of services and shall examine the feasibility of increasing the number of plans that may be approved. Data collected pursuant to this section shall be available to the public in an aggregated format to protect individual confidentiality, however under no circumstance will data be released on items with cells with smaller than statistically acceptable standards. 10. The services provided or arranged by all operating demonstrations or any program that receives designation as a Program of All-Inclusive Care for the Elderly (PACE) as authorized by federal public law 105-33, subtitle I of title IV of the Balanced Budget Act of 1997, may include,but need not be limited to, housing, inpatient and outpatient hospital services, nursing home care, home health care, adult day care, assisted living services provided in accordance with article forty-six-B of this chapter, adult care facility services, enriched housing program services, hospice care, respite care, personal care, homemaker services, diagnostic laboratory services, therapeutic and diagnostic radiologic services, emergency services, emergency alarm systems, home delivered meals, physical adaptations to the client's home, physician care (including consultant and referral services), ancillary services, case management services, transportation, and related medical services. * NB Repealed December 31, 2015
* § 4403-f. Managed long term care plans. 1. Definitions. As used in this section: (a) "Managed long term care plan" means an entity that has received a certificate of authority pursuant to this section to provide, or arrange for, health and long term care services, on a capitated basis in accordance with this section, for a population, age eighteen and over, which the plan is authorized to enroll. (b) "Eligible applicant" means an entity controlled or wholly owned by one or more of the following: a hospital as defined in subdivision one of section twenty-eight hundred one of this chapter; a home care agency licensed or certified pursuant to article thirty-six of this chapter; an entity that has received a certificate of authority pursuant to sections forty-four hundred three, forty-four hundred three-a or forty-four hundred eight-a of this article (as added by chapter six hundred thirty-nine of the laws of nineteen hundred ninety-six), or a health maintenance organization authorized under article forty-three of the insurance law; or a not-for-profit organization which has a history of providing or coordinating health care services and long term care services to the elderly and disabled. (c) "Operating demonstration" means the following entities: the chronic care management demonstration programs authorized by chapter five hundred thirty of the laws of nineteen hundred eighty-eight, chapter five hundred ninety-seven of the laws of nineteen hundred ninety-four and chapter eighty-one of the laws of nineteen hundred ninety-five as amended. (d) "Approved managed long term care demonstration" means the sites approved by the commissioner to participate in the "Evaluated Medicaid Long Term Care Capitation Program". (e) "Health and long term care services" means services including, but not limited to primary care, acute care, home and community-based and institution-based long term care and ancillary services (that shall include medical supplies and nutritional supplements) that are necessary to meet the needs of persons whom the plan is authorized to enroll. 2. Certificate of authority; form. An eligible applicant shall submit an application for a certificate of authority to operate a managed long term care plan upon forms prescribed by the commissioner. Such eligible applicant shall submit information and documentation to the commissioner which shall include, but not be limited to: (a) a description of the service area proposed to be served by the plan with projections of enrollment that will result in a fiscally sound plan; (b) a description of the proposed target population and the marketing plan; (c) a description that demonstrates the cost-effectiveness of the program as compared to the cost of services clients would otherwise have received; (d) adequate documentation of the appropriate licenses, certifications or approvals to provide care as planned, including contracts with such providers as may be necessary to provide the full complement of services required to be provided under this section. 3. Certificate of authority; approval. The commissioner shall not approve an application for a certificate of authority unless the applicant demonstrates to the commissioner's satisfaction: (a) the relative cost effectiveness to the medical assistance program when compared to other managed long term care plans proposing to serve, or serving, comparable populations; (b) that it will have in place acceptable quality-assurance mechanisms, grievance procedures, mechanisms to protect the rights ofenrollees and case management services to ensure continuity, quality, appropriateness and coordination of care; (c) that it will include an enrollment process which shall ensure that enrollment in the plan is informed and voluntary by enrollees or their representatives and a voluntary disenrollment process. The application shall include the specific grounds that would warrant involuntary disenrollment provided, however, an otherwise eligible enrollee shall not be involuntarily disenrolled on the basis of health status; (d) satisfactory evidence of the character and competence of the proposed operators and reasonable assurance that the applicant will provide high quality services to an enrolled population; (e) sufficient management systems capacity to meet the requirements of this section and the ability to efficiently process payment for covered services; (f) readiness and capability to achieve full capitation for services reimbursed pursuant to title XVIII of the federal social security act or, for an applicant designated as an eligible applicant prior to April first, two thousand seven pursuant to paragraph (d) of subdivision six of this section that has its principal place of business in Bronx county and is unable to achieve such full capitation, readiness and capability to achieve full capitation on a scheduled basis for services reimbursed pursuant to title XVIII of the federal social security act or capability and protocols for benefit coordination for services reimbursed pursuant to such title and all other applicable benefits, with such benefit coordination including, but not limited to, measures to support sound clinical decisions, reduce administrative complexity, coordinate access to services, maximize benefits available pursuant to such title and ensure that necessary care is provided; (g) readiness and capability to achieve full capitation for services reimbursed pursuant to title XIX of the federal social security act; (h) willingness and capability of taking, or cooperating in, all steps necessary to secure and integrate any potential sources of funding for services provided by the managed long term care plan, including, but not limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act, the federal older Americans act of nineteen hundred sixty-five, as amended, or any successor provisions subject to approval of the director of the state office for aging, and through financing options such as those authorized pursuant to section three hundred sixty-seven-f of the social services law; (i) that the arrangements for health and long term care services ensure the availability and accessibility of such services to the proposed enrolled population; and (j) that the applicant is financially responsible and may be expected to meet its obligations to its enrolled members. 4. Solvency. (a) The commissioner shall be responsible for evaluating, approving and regulating all matters relating to fiscal solvency, including reserves, surplus and provider contracts. The commissioner may promulgate regulations to implement this section. The commissioner, in the administration of this subdivision: (i) shall be guided by the standards which govern the fiscal solvency of a health maintenance organization, provided, however, that the commissioner shall recognize the specific delivery components, operational capacity and financial capability of the eligible applicant for a certificate of authority; (ii) shall not apply financial solvency standards that exceed those required for a health maintenance organization; and (iii) shall establish reasonable capitalization and contingent reserve requirements.(b) Standards established pursuant to this subdivision shall be adequate to protect the interests of enrollees in managed long term care plans. The commissioner shall be satisfied that the eligible applicant is financially sound, and has made adequate provisions to pay for services. 4-a. Role of the superintendent of insurance. (a) The superintendent of insurance shall determine and approve premiums in accordance with the insurance law whenever any population of enrollees not eligible under title XIX of the federal social security act is to be covered. The determination and approval of the superintendent of insurance shall relate to premiums charged to such enrollees not eligible under title XIX of the federal social security act. (b) The superintendent of insurance shall evaluate and approve any enrollee contracts whenever such enrollee contracts are to cover any population of enrollees not eligible under title XIX of the federal social security act. 5. Applicability of other laws. A managed long term care plan or approved managed long term care demonstration shall be subject to the provisions of the insurance law and regulations applicable to health maintenance organizations, this article and regulations promulgated pursuant thereto. To the extent that the provisions of this section are inconsistent with the provisions of this chapter or the provisions of the insurance law, the provisions of this section shall prevail. 6. Approval authority. (a) An applicant shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that the applicant complies with the operating requirements for a managed long term care plan under this section. The commissioner shall issue no more than fifty certificates of authority to managed long term care plans pursuant to this section. For purposes of issuance of no more than fifty certificates of authority, such certificates shall include those certificates issued pursuant to paragraphs (b) and (c) of this subdivision. (b) An operating demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Except as otherwise expressly provided in paragraphs (d) and (e) of subdivision seven of this section, nothing in this section shall be construed to affect the continued legal authority of an operating demonstration to operate its previously approved program. (c) An approved managed long term care demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Notwithstanding any inconsistent provision of law to the contrary, all authority for the operation of approved managed long term care demonstrations which have not been issued a certificate of authority as a managed long term care plan, shall expire one year after the adoption of regulations implementing managed long term care plans. (d) The majority leader of the senate and the speaker of the assembly may each designate in writing up to fifteen eligible applicants to apply to be approved managed long term care demonstrations or plans. The commissioner may designate in writing up to eleven eligible applicants to apply to be approved managed long term care demonstrations or plans. 7. Program oversight and administration. (a)(i) The commissioner shall promulgate regulations to implement this section and to ensure the quality, appropriateness and cost-effectiveness of the services provided by managed long term care plans. The commissioner may waive rules andregulations of the department, including but not limited to, those pertaining to duplicative requirements concerning record keeping, boards of directors, staffing and reporting, when such waiver will promote the efficient delivery of appropriate, quality, cost-effective services and when the health, safety and general welfare of enrollees will not be impaired as a result of such waiver. In order to achieve managed long term care plan system efficiencies and coordination and to promote the objectives of high quality, integrated and cost effective care, the commissioner may establish a single coordinated surveillance process, allow for a comprehensive quality improvement and review process to meet component quality requirements, and require a uniform cost report. The commissioner shall require managed long term care plans to utilize quality improvement measures, based on health outcomes data, for internal quality assessment processes and may utilize such measures as part of the single coordinated surveillance process. (ii) Notwithstanding any inconsistent provision of the social services law to the contrary, the commissioner shall, pursuant to regulation, determine whether and the extent to which the applicable provisions of the social services law or regulations relating to approvals and authorizations of, and utilization limitations on, health and long term care services reimbursed pursuant to title XIX of the federal social security act, including, but not limited to, fiscal assessment requirements, are inconsistent with the flexibility necessary for the efficient administration of managed long term care plans and such regulations shall provide that such provisions shall not be applicable to enrollees or managed long term care plans, provided that such determinations are consistent with applicable federal law and regulation. (b) The commissioner shall, to the extent necessary, submit the appropriate waivers, including, but not limited to, those authorized pursuant to sections eleven hundred fifteen and nineteen hundred fifteen of the federal social security act, or successor provisions, and any other waivers necessary to achieve the purposes of high quality, integrated, and cost effective care and integrated financial eligibility policies under the medical assistance program or pursuant to title XVIII of the federal social security act. Copies of such original waiver applications shall be provided to the chairman of the senate finance committee and the chairman of the assembly ways and means committee simultaneously with their submission to the federal government. (c)(i) A managed long term care plan shall not use deceptive or coercive marketing methods to encourage participants to enroll. A managed long term care plan shall not distribute marketing materials to potential enrollees before such materials have been approved by the commissioner. (ii) The commissioner shall ensure, through periodic reviews of managed long term care plans, that enrollment was a voluntary and informed choice; such plan has only enrolled persons whom it is authorized to enroll, and plan services are promptly available to enrollees when appropriate. Such periodic reviews shall be made according to standards as determined by the commissioner in regulations. (d) Notwithstanding any provision of law, rule or regulation to the contrary, the commissioner may issue a request for proposals to carry out reviews of enrollment and assessment activities in managed long term care plans and operating demonstrations with respect to enrollees eligible to receive services under title XIX of the federal social security act to determine if enrollment meets the requirements of subparagraph (ii) of paragraph (c) of this subdivision; and that assessments of such enrollees' health, functional and other status, forthe purpose of adjusting premiums, were accurate. Evaluations shall address each bidder's ability to ensure that enrollments in such plans are promptly reviewed and that medical assistance required to be furnished pursuant to title eleven of article five of the social services law will be appropriately furnished to the recipients for whom the local commissioners are responsible pursuant to section three hundred sixty-five of such title and that plan implementation will be consistent with the proper and efficient administration of the medical assistance program and managed long term care plans. (e) The commissioner may, in his or her discretion for the purpose of protection of enrollees, impose measures including, but not limited to, bans on further enrollments and requirements for use of enrollment brokers until any identified problems are resolved to the satisfaction of the commissioner. (f) Continuation of a certificate of authority issued under this section shall be contingent upon satisfactory performance by the managed long term care plan in the delivery, continuity, accessibility, cost effectiveness and quality of the services to enrolled members; compliance with applicable provisions of this section and rules and regulations promulgated thereunder; the continuing fiscal solvency of the organization; and, federal financial participation in payments on behalf of enrollees who are eligible to receive services under title XIX of the federal social security act. (g) The commissioner shall ensure that (i) a process exists for the resolution of disputes concerning the accuracy of assessments performed pursuant to paragraphs (d) and (e) of this subdivision; and (ii) the tasks described in paragraphs (d) and (e) of this subdivision are consistently administered. (h) (i) Managed long term care plans and demonstrations may enroll eligible persons in the plan or demonstration upon the completion of a comprehensive assessment that shall include, but not be limited to, an evaluation of the medical, social and environmental needs of each prospective enrollee in such program. This assessment shall also serve as the basis for the development and provision of an appropriate plan of care for the prospective enrollee. (ii) The assessment shall be completed by a representative of the managed long term care plan or demonstration, in consultation with the prospective enrollee's health care practitioner. The commissioner shall prescribe the forms on which the assessment shall be made. (iii) The completed assessment and documentation of the enrollment shall be submitted by the managed long term care plan or demonstration to the local department of social services, or to a contractor selected pursuant to paragraph (d) of this subdivision, prior to the commencement of services under the managed long term care plan or demonstration. For purposes of reimbursement of the managed long term care plan or demonstration, if the completed assessment and documentation are submitted on or before the twentieth day of the month, the enrollment shall commence on the first day of the month following the completion and submission and if the completed assessment and documentation are submitted after the twentieth day of the month, the enrollment shall commence on the first day of the second month following submission. Enrollments conducted by a plan or demonstration shall be subject to review and audit by the department and by the local social services district or a contractor selected pursuant to paragraph (d) of this subdivision. (iv) Continued enrollment in a managed long term care plan or demonstration paid for by government funds shall be based upon a comprehensive assessment of the medical, social and environmental needsof the recipient of the services. Such assessment shall be performed at least annually by the managed long term care plan serving the enrollee. The commissioner shall prescribe the forms on which the assessment will be made. (i) The commissioner shall, upon request by a managed long term care plan, approved managed long term care demonstration, or operating demonstration, and consistent with federal regulations promulgated pursuant to the Health Insurance Portability and Accountability Act, share with such plan or demonstration the following data if it is available: (i) information concerning utilization of services and providers by each of its enrollees prior to and during enrollment, including but not limited to utilization of emergency department services, prescription drugs, and hospital and nursing facility admissions. (ii) aggregate data concerning utilization and costs for enrollees and for comparable cohorts served through the Medicaid fee-for-service program. 8. Payment rates for managed long term care plan enrollees eligible for medical assistance. The commissioner shall establish payment rates for services provided to enrollees eligible under title XIX of the federal social security act. Such payment rates shall be subject to approval by the director of the division of the budget and shall reflect savings to both state and local governments when compared to costs which would be incurred by such program if enrollees were to receive comparable health and long term care services on a fee-for-service basis in the geographic region in which such services are proposed to be provided. Payment rates shall be risk-adjusted to take into account the characteristics of enrollees, or proposed enrollees, including, but not limited to: frailty, disability level, health and functional status, age, gender, the nature of services provided to such enrollees, and other factors as determined by the commissioner. The risk adjusted premiums may also be combined with disincentives or requirements designed to mitigate any incentives to obtain higher payment categories. 9. Reports. The department shall provide an interim report to the governor, temporary president of the senate and the speaker of the assembly on or before April first, two thousand three and a final report on or before April first, two thousand six on the results of the managed long term care plans under this section. Such results shall be based on data provided by the managed long term care plans and shall include but not be limited to the quality, accessibility and appropriateness of services; consumer satisfaction; the mean and distribution of impairment measures of the enrollees by payor for each plan; the current method of calculating premiums and the cost of comparable health and long term care services provided on a fee-for-service basis for enrollees eligible for services under title XIX of the federal social security act; and the results of periodic reviews of enrollment levels and practices. Such reports shall provide data on the demographic and clinical characteristics of enrollees, voluntary and involuntary disenrollments from plans, and utilization of services and shall examine the feasibility of increasing the number of plans that may be approved. Data collected pursuant to this section shall be available to the public in an aggregated format to protect individual confidentiality, however under no circumstance will data be released on items with cells with smaller than statistically acceptable standards. 10. The services provided or arranged by all operating demonstrations or any program that receives designation as a Program of All-Inclusive Care for the Elderly (PACE) as authorized by federal public law 105-33, subtitle I of title IV of the Balanced Budget Act of 1997, may include,but need not be limited to, housing, inpatient and outpatient hospital services, nursing home care, home health care, adult day care, assisted living services provided in accordance with article forty-six-B of this chapter, adult care facility services, enriched housing program services, hospice care, respite care, personal care, homemaker services, diagnostic laboratory services, therapeutic and diagnostic radiologic services, emergency services, emergency alarm systems, home delivered meals, physical adaptations to the client's home, physician care (including consultant and referral services), ancillary services, case management services, transportation, and related medical services. * NB Repealed December 31, 2015
* § 4403-f. Managed long term care plans. 1. Definitions. As used in this section: (a) "Managed long term care plan" means an entity that has received a certificate of authority pursuant to this section to provide, or arrange for, health and long term care services, on a capitated basis in accordance with this section, for a population, age eighteen and over, which the plan is authorized to enroll. (b) "Eligible applicant" means an entity controlled or wholly owned by one or more of the following: a hospital as defined in subdivision one of section twenty-eight hundred one of this chapter; a home care agency licensed or certified pursuant to article thirty-six of this chapter; an entity that has received a certificate of authority pursuant to sections forty-four hundred three, forty-four hundred three-a or forty-four hundred eight-a of this article (as added by chapter six hundred thirty-nine of the laws of nineteen hundred ninety-six), or a health maintenance organization authorized under article forty-three of the insurance law; or a not-for-profit organization which has a history of providing or coordinating health care services and long term care services to the elderly and disabled. (c) "Operating demonstration" means the following entities: the chronic care management demonstration programs authorized by chapter five hundred thirty of the laws of nineteen hundred eighty-eight, chapter five hundred ninety-seven of the laws of nineteen hundred ninety-four and chapter eighty-one of the laws of nineteen hundred ninety-five as amended. (d) "Approved managed long term care demonstration" means the sites approved by the commissioner to participate in the "Evaluated Medicaid Long Term Care Capitation Program". (e) "Health and long term care services" means services including, but not limited to primary care, acute care, home and community-based and institution-based long term care and ancillary services (that shall include medical supplies and nutritional supplements) that are necessary to meet the needs of persons whom the plan is authorized to enroll. 2. Certificate of authority; form. An eligible applicant shall submit an application for a certificate of authority to operate a managed long term care plan upon forms prescribed by the commissioner. Such eligible applicant shall submit information and documentation to the commissioner which shall include, but not be limited to: (a) a description of the service area proposed to be served by the plan with projections of enrollment that will result in a fiscally sound plan; (b) a description of the proposed target population and the marketing plan; (c) a description that demonstrates the cost-effectiveness of the program as compared to the cost of services clients would otherwise have received; (d) adequate documentation of the appropriate licenses, certifications or approvals to provide care as planned, including contracts with such providers as may be necessary to provide the full complement of services required to be provided under this section. 3. Certificate of authority; approval. The commissioner shall not approve an application for a certificate of authority unless the applicant demonstrates to the commissioner's satisfaction: (a) the relative cost effectiveness to the medical assistance program when compared to other managed long term care plans proposing to serve, or serving, comparable populations; (b) that it will have in place acceptable quality-assurance mechanisms, grievance procedures, mechanisms to protect the rights ofenrollees and case management services to ensure continuity, quality, appropriateness and coordination of care; (c) that it will include an enrollment process which shall ensure that enrollment in the plan is informed and voluntary by enrollees or their representatives and a voluntary disenrollment process. The application shall include the specific grounds that would warrant involuntary disenrollment provided, however, an otherwise eligible enrollee shall not be involuntarily disenrolled on the basis of health status; (d) satisfactory evidence of the character and competence of the proposed operators and reasonable assurance that the applicant will provide high quality services to an enrolled population; (e) sufficient management systems capacity to meet the requirements of this section and the ability to efficiently process payment for covered services; (f) readiness and capability to achieve full capitation for services reimbursed pursuant to title XVIII of the federal social security act or, for an applicant designated as an eligible applicant prior to April first, two thousand seven pursuant to paragraph (d) of subdivision six of this section that has its principal place of business in Bronx county and is unable to achieve such full capitation, readiness and capability to achieve full capitation on a scheduled basis for services reimbursed pursuant to title XVIII of the federal social security act or capability and protocols for benefit coordination for services reimbursed pursuant to such title and all other applicable benefits, with such benefit coordination including, but not limited to, measures to support sound clinical decisions, reduce administrative complexity, coordinate access to services, maximize benefits available pursuant to such title and ensure that necessary care is provided; (g) readiness and capability to achieve full capitation for services reimbursed pursuant to title XIX of the federal social security act; (h) willingness and capability of taking, or cooperating in, all steps necessary to secure and integrate any potential sources of funding for services provided by the managed long term care plan, including, but not limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act, the federal older Americans act of nineteen hundred sixty-five, as amended, or any successor provisions subject to approval of the director of the state office for aging, and through financing options such as those authorized pursuant to section three hundred sixty-seven-f of the social services law; (i) that the arrangements for health and long term care services ensure the availability and accessibility of such services to the proposed enrolled population; and (j) that the applicant is financially responsible and may be expected to meet its obligations to its enrolled members. 4. Solvency. (a) The commissioner shall be responsible for evaluating, approving and regulating all matters relating to fiscal solvency, including reserves, surplus and provider contracts. The commissioner may promulgate regulations to implement this section. The commissioner, in the administration of this subdivision: (i) shall be guided by the standards which govern the fiscal solvency of a health maintenance organization, provided, however, that the commissioner shall recognize the specific delivery components, operational capacity and financial capability of the eligible applicant for a certificate of authority; (ii) shall not apply financial solvency standards that exceed those required for a health maintenance organization; and (iii) shall establish reasonable capitalization and contingent reserve requirements.(b) Standards established pursuant to this subdivision shall be adequate to protect the interests of enrollees in managed long term care plans. The commissioner shall be satisfied that the eligible applicant is financially sound, and has made adequate provisions to pay for services. 4-a. Role of the superintendent of insurance. (a) The superintendent of insurance shall determine and approve premiums in accordance with the insurance law whenever any population of enrollees not eligible under title XIX of the federal social security act is to be covered. The determination and approval of the superintendent of insurance shall relate to premiums charged to such enrollees not eligible under title XIX of the federal social security act. (b) The superintendent of insurance shall evaluate and approve any enrollee contracts whenever such enrollee contracts are to cover any population of enrollees not eligible under title XIX of the federal social security act. 5. Applicability of other laws. A managed long term care plan or approved managed long term care demonstration shall be subject to the provisions of the insurance law and regulations applicable to health maintenance organizations, this article and regulations promulgated pursuant thereto. To the extent that the provisions of this section are inconsistent with the provisions of this chapter or the provisions of the insurance law, the provisions of this section shall prevail. 6. Approval authority. (a) An applicant shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that the applicant complies with the operating requirements for a managed long term care plan under this section. The commissioner shall issue no more than fifty certificates of authority to managed long term care plans pursuant to this section. For purposes of issuance of no more than fifty certificates of authority, such certificates shall include those certificates issued pursuant to paragraphs (b) and (c) of this subdivision. (b) An operating demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Except as otherwise expressly provided in paragraphs (d) and (e) of subdivision seven of this section, nothing in this section shall be construed to affect the continued legal authority of an operating demonstration to operate its previously approved program. (c) An approved managed long term care demonstration shall be issued a certificate of authority as a managed long term care plan upon a determination by the commissioner that such demonstration complies with the operating requirements for a managed long term care plan under this section. Notwithstanding any inconsistent provision of law to the contrary, all authority for the operation of approved managed long term care demonstrations which have not been issued a certificate of authority as a managed long term care plan, shall expire one year after the adoption of regulations implementing managed long term care plans. (d) The majority leader of the senate and the speaker of the assembly may each designate in writing up to fifteen eligible applicants to apply to be approved managed long term care demonstrations or plans. The commissioner may designate in writing up to eleven eligible applicants to apply to be approved managed long term care demonstrations or plans. 7. Program oversight and administration. (a)(i) The commissioner shall promulgate regulations to implement this section and to ensure the quality, appropriateness and cost-effectiveness of the services provided by managed long term care plans. The commissioner may waive rules andregulations of the department, including but not limited to, those pertaining to duplicative requirements concerning record keeping, boards of directors, staffing and reporting, when such waiver will promote the efficient delivery of appropriate, quality, cost-effective services and when the health, safety and general welfare of enrollees will not be impaired as a result of such waiver. In order to achieve managed long term care plan system efficiencies and coordination and to promote the objectives of high quality, integrated and cost effective care, the commissioner may establish a single coordinated surveillance process, allow for a comprehensive quality improvement and review process to meet component quality requirements, and require a uniform cost report. The commissioner shall require managed long term care plans to utilize quality improvement measures, based on health outcomes data, for internal quality assessment processes and may utilize such measures as part of the single coordinated surveillance process. (ii) Notwithstanding any inconsistent provision of the social services law to the contrary, the commissioner shall, pursuant to regulation, determine whether and the extent to which the applicable provisions of the social services law or regulations relating to approvals and authorizations of, and utilization limitations on, health and long term care services reimbursed pursuant to title XIX of the federal social security act, including, but not limited to, fiscal assessment requirements, are inconsistent with the flexibility necessary for the efficient administration of managed long term care plans and such regulations shall provide that such provisions shall not be applicable to enrollees or managed long term care plans, provided that such determinations are consistent with applicable federal law and regulation. (b) The commissioner shall, to the extent necessary, submit the appropriate waivers, including, but not limited to, those authorized pursuant to sections eleven hundred fifteen and nineteen hundred fifteen of the federal social security act, or successor provisions, and any other waivers necessary to achieve the purposes of high quality, integrated, and cost effective care and integrated financial eligibility policies under the medical assistance program or pursuant to title XVIII of the federal social security act. Copies of such original waiver applications shall be provided to the chairman of the senate finance committee and the chairman of the assembly ways and means committee simultaneously with their submission to the federal government. (c)(i) A managed long term care plan shall not use deceptive or coercive marketing methods to encourage participants to enroll. A managed long term care plan shall not distribute marketing materials to potential enrollees before such materials have been approved by the commissioner. (ii) The commissioner shall ensure, through periodic reviews of managed long term care plans, that enrollment was a voluntary and informed choice; such plan has only enrolled persons whom it is authorized to enroll, and plan services are promptly available to enrollees when appropriate. Such periodic reviews shall be made according to standards as determined by the commissioner in regulations. (d) Notwithstanding any provision of law, rule or regulation to the contrary, the commissioner may issue a request for proposals to carry out reviews of enrollment and assessment activities in managed long term care plans and operating demonstrations with respect to enrollees eligible to receive services under title XIX of the federal social security act to determine if enrollment meets the requirements of subparagraph (ii) of paragraph (c) of this subdivision; and that assessments of such enrollees' health, functional and other status, forthe purpose of adjusting premiums, were accurate. Evaluations shall address each bidder's ability to ensure that enrollments in such plans are promptly reviewed and that medical assistance required to be furnished pursuant to title eleven of article five of the social services law will be appropriately furnished to the recipients for whom the local commissioners are responsible pursuant to section three hundred sixty-five of such title and that plan implementation will be consistent with the proper and efficient administration of the medical assistance program and managed long term care plans. (e) The commissioner may, in his or her discretion for the purpose of protection of enrollees, impose measures including, but not limited to, bans on further enrollments and requirements for use of enrollment brokers until any identified problems are resolved to the satisfaction of the commissioner. (f) Continuation of a certificate of authority issued under this section shall be contingent upon satisfactory performance by the managed long term care plan in the delivery, continuity, accessibility, cost effectiveness and quality of the services to enrolled members; compliance with applicable provisions of this section and rules and regulations promulgated thereunder; the continuing fiscal solvency of the organization; and, federal financial participation in payments on behalf of enrollees who are eligible to receive services under title XIX of the federal social security act. (g) The commissioner shall ensure that (i) a process exists for the resolution of disputes concerning the accuracy of assessments performed pursuant to paragraphs (d) and (e) of this subdivision; and (ii) the tasks described in paragraphs (d) and (e) of this subdivision are consistently administered. (h) (i) Managed long term care plans and demonstrations may enroll eligible persons in the plan or demonstration upon the completion of a comprehensive assessment that shall include, but not be limited to, an evaluation of the medical, social and environmental needs of each prospective enrollee in such program. This assessment shall also serve as the basis for the development and provision of an appropriate plan of care for the prospective enrollee. (ii) The assessment shall be completed by a representative of the managed long term care plan or demonstration, in consultation with the prospective enrollee's health care practitioner. The commissioner shall prescribe the forms on which the assessment shall be made. (iii) The completed assessment and documentation of the enrollment shall be submitted by the managed long term care plan or demonstration to the local department of social services, or to a contractor selected pursuant to paragraph (d) of this subdivision, prior to the commencement of services under the managed long term care plan or demonstration. For purposes of reimbursement of the managed long term care plan or demonstration, if the completed assessment and documentation are submitted on or before the twentieth day of the month, the enrollment shall commence on the first day of the month following the completion and submission and if the completed assessment and documentation are submitted after the twentieth day of the month, the enrollment shall commence on the first day of the second month following submission. Enrollments conducted by a plan or demonstration shall be subject to review and audit by the department and by the local social services district or a contractor selected pursuant to paragraph (d) of this subdivision. (iv) Continued enrollment in a managed long term care plan or demonstration paid for by government funds shall be based upon a comprehensive assessment of the medical, social and environmental needsof the recipient of the services. Such assessment shall be performed at least annually by the managed long term care plan serving the enrollee. The commissioner shall prescribe the forms on which the assessment will be made. (i) The commissioner shall, upon request by a managed long term care plan, approved managed long term care demonstration, or operating demonstration, and consistent with federal regulations promulgated pursuant to the Health Insurance Portability and Accountability Act, share with such plan or demonstration the following data if it is available: (i) information concerning utilization of services and providers by each of its enrollees prior to and during enrollment, including but not limited to utilization of emergency department services, prescription drugs, and hospital and nursing facility admissions. (ii) aggregate data concerning utilization and costs for enrollees and for comparable cohorts served through the Medicaid fee-for-service program. 8. Payment rates for managed long term care plan enrollees eligible for medical assistance. The commissioner shall establish payment rates for services provided to enrollees eligible under title XIX of the federal social security act. Such payment rates shall be subject to approval by the director of the division of the budget and shall reflect savings to both state and local governments when compared to costs which would be incurred by such program if enrollees were to receive comparable health and long term care services on a fee-for-service basis in the geographic region in which such services are proposed to be provided. Payment rates shall be risk-adjusted to take into account the characteristics of enrollees, or proposed enrollees, including, but not limited to: frailty, disability level, health and functional status, age, gender, the nature of services provided to such enrollees, and other factors as determined by the commissioner. The risk adjusted premiums may also be combined with disincentives or requirements designed to mitigate any incentives to obtain higher payment categories. 9. Reports. The department shall provide an interim report to the governor, temporary president of the senate and the speaker of the assembly on or before April first, two thousand three and a final report on or before April first, two thousand six on the results of the managed long term care plans under this section. Such results shall be based on data provided by the managed long term care plans and shall include but not be limited to the quality, accessibility and appropriateness of services; consumer satisfaction; the mean and distribution of impairment measures of the enrollees by payor for each plan; the current method of calculating premiums and the cost of comparable health and long term care services provided on a fee-for-service basis for enrollees eligible for services under title XIX of the federal social security act; and the results of periodic reviews of enrollment levels and practices. Such reports shall provide data on the demographic and clinical characteristics of enrollees, voluntary and involuntary disenrollments from plans, and utilization of services and shall examine the feasibility of increasing the number of plans that may be approved. Data collected pursuant to this section shall be available to the public in an aggregated format to protect individual confidentiality, however under no circumstance will data be released on items with cells with smaller than statistically acceptable standards. 10. The services provided or arranged by all operating demonstrations or any program that receives designation as a Program of All-Inclusive Care for the Elderly (PACE) as authorized by federal public law 105-33, subtitle I of title IV of the Balanced Budget Act of 1997, may include,but need not be limited to, housing, inpatient and outpatient hospital services, nursing home care, home health care, adult day care, assisted living services provided in accordance with article forty-six-B of this chapter, adult care facility services, enriched housing program services, hospice care, respite care, personal care, homemaker services, diagnostic laboratory services, therapeutic and diagnostic radiologic services, emergency services, emergency alarm systems, home delivered meals, physical adaptations to the client's home, physician care (including consultant and referral services), ancillary services, case management services, transportation, and related medical services. * NB Repealed December 31, 2015
