N.Y. PBH Law § 2826 — New York Code / Act PBH / Article 28 / Section 2826
Temporary adjustment to reimbursement rates
Status: in_force

§ 2826. Temporary adjustment to reimbursement rates. (a)\nNotwithstanding any provision of law to the contrary, within funds\nappropriated and subject to the availability of federal financial\nparticipation, the commissioner may grant approval of a temporary\nadjustment to the non-capital components of rates, or make temporary\nlump-sum Medicaid payments, to eligible general hospitals, skilled\nnursing facilities, clinics and home care providers, provided however,\nthat should federal financial participation not be available for any\neligible provider, then payments pursuant to this subdivision may be\nmade as grants and shall not be deemed to be medical assistance\npayments.\n  (b) Eligible providers shall include:\n  (i) providers undergoing closure;\n  (ii) providers impacted by the closure of other health care providers;\n  (iii) providers subject to mergers, acquisitions, consolidations or\nrestructuring; or\n  (iv) providers impacted by the merger, acquisition, consolidation or\nrestructuring of other health care providers.\n  (c) Providers seeking temporary rate adjustments under this section\nshall demonstrate through submission of a written proposal to the\ncommissioner that the additional resources provided by a temporary rate\nadjustment will achieve one or more of the following:\n  (i) protect or enhance access to care;\n  (ii) protect or enhance quality of care;\n  (iii) improve the cost effectiveness of the delivery of health care\nservices; or\n  (iv) otherwise protect or enhance the health care delivery system, as\ndetermined by the commissioner.\n  (c-1) The commissioner, under applications submitted to the department\npursuant to subdivision (d) of this section, shall consider criteria\nthat includes, but is not limited to:\n  (i) Such applicant's financial condition as evidenced by operating\nmargins, negative fund balance or negative equity position;\n  (ii) The extent to which such applicant fulfills or will fulfill an\nunmet health care need for acute inpatient, outpatient, primary or\nresidential health care services in a community;\n  (iii) The extent to which such application will involve savings to the\nMedicaid program;\n  (iv) The quality of the application as evidenced by such application's\nlong term solutions for such applicant to achieve sustainable health\ncare services, improving the quality of patient care, and/or\ntransforming the delivery of health care services to meet community\nneeds;\n  (v) The extent to which such applicant is geographically isolated in\nrelation to other providers; or\n  (vi) The extent to which such applicant provides services to an\nunderserved area in relation to other providers.\n  (d) (i) Such written proposal shall be submitted to the commissioner\nat least sixty days prior to the requested effective date of the\ntemporary rate adjustment, and shall include a proposed budget to\nachieve the goals of the proposal. Any Medicaid payment issued pursuant\nto this section shall be in effect for a specified period of time as\ndetermined by the commissioner, of up to three years. At the end of the\nspecified timeframe such payments or adjustments to the non-capital\ncomponent of rates shall cease, and the provider shall be reimbursed in\naccordance with the otherwise applicable rate-setting methodology as set\nforth in applicable statutes and regulations. The commissioner may\nestablish, as a condition of receiving such temporary rate adjustments\nor grants, benchmarks and goals to be achieved in conformity with the\nprovider's written proposal as approved by the commissioner and may also\nrequire that the facility submit such periodic reports concerning the\nachievement of such benchmarks and goals as the commissioner deems\nnecessary. Failure to achieve satisfactory progress, as determined by\nthe commissioner, in accomplishing such benchmarks and goals shall be a\nbasis for ending the facility's temporary rate adjustment or grant prior\nto the end of the specified timeframe. (ii) The commissioner may require\nthat applications submitted pursuant to this section be submitted in\nresponse to and in accordance with a Request For Applications or a\nRequest For Proposals issued by the commissioner.\n  (e) Notwithstanding any law to the contrary, general hospitals defined\nas critical access hospitals pursuant to title XVIII of the federal\nsocial security act shall be allocated no less than seven million five\nhundred thousand dollars annually pursuant to this section. The\ndepartment of health shall provide a report to the governor and\nlegislature no later than June first, two thousand fifteen providing\nrecommendations on how to ensure the financial stability of, and\npreserve patient access to, critical access hospitals, including an\nexamination of permanent Medicaid rate methodology changes.\n  (e-1) Thirty days prior to executing an allocation or modification to\nan allocation made pursuant to this section, the commissioner shall\nprovide written notice to the chair of the senate finance committee and\nthe chair of the assembly ways and means committee with regards to the\nintent to distribute such funds. Such notice shall include, but not be\nlimited to, information on the methodology used to distribute the funds,\nthe facility specific allocations of the funds, any facility specific\nproject descriptions or requirements for receiving such funds, the\nmulti-year impacts of these allocations, and the availability of federal\nmatching funds. The commissioner shall provide quarterly reports to the\nchair of the senate finance committee and the chair of the assembly ways\nand means committee on the distribution and disbursement of such funds.\nWithin sixty days of the effectiveness of this subdivision, the\ncommissioner shall provide a written report to the chair of the senate\nfinance committee and the chair of the assembly ways and means committee\non all awards made pursuant to this section prior to the effectiveness\nof this subdivision, including all information that is required to be\nincluded in the notice requirements of this subdivision.\n  (f) Notwithstanding any provision of law to the contrary, and subject\nto federal financial participation, no less than ten million dollars\nshall be allocated to providers described in this subdivision; provided,\nhowever that if federal financial participation is unavailable for any\neligible provider, or for any potential investment under this\nsubdivision then the non-federal share of payments pursuant to this\nsubdivision may be made as state grants.\n  (i) Providers serving rural areas as such term is defined in section\ntwo thousand nine hundred fifty-one of this chapter, including but not\nlimited to hospitals, residential health care facilities, diagnostic and\ntreatment centers, ambulatory surgery centers and clinics shall be\neligible for enhanced payments or reimbursement under a supplemental\nrate methodology for the purpose of promoting access and improving the\nquality of care.\n  (ii) Notwithstanding any provision of law to the contrary, and subject\nto federal financial participation, essential community providers,\nwhich, for the purposes of this section, shall mean a provider that\noffers health services within a defined and isolated geographic region\nwhere such services would otherwise be unavailable to the population of\nsuch region, shall be eligible for enhanced payments or reimbursement\nunder a supplemental rate methodology for the purpose of promoting\naccess and improving quality of care. Eligible providers under this\nparagraph may include, but are not limited to, hospitals, residential\nhealth care facilities, diagnostic and treatment centers, ambulatory\nsurgery centers and clinics.\n  (iii) In making such payments the commissioner may contemplate the\nextent to which any such provider receives assistance under subdivision\n(a) of this section and may require such provider to submit a written\nproposal demonstrating that the need for monies under this subdivision\nexceeds monies otherwise distributed pursuant to this section.\n  (iv) Payments under this subdivision may include, but not be limited\nto, temporary rate adjustments, lump sum Medicaid payments, supplemental\nrate methodologies and any other payments as determined by the\ncommissioner.\n  (v) Payments under this subdivision shall be subject to approval by\nthe director of the budget.\n  (vi) The commissioner may promulgate regulations to effectuate the\nprovisions of this subdivision.\n  (vii) Thirty days prior to adopting or applying a methodology or\nprocedure for making an allocation or modification to an allocation made\npursuant to this subdivision, the commissioner shall provide written\nnotice to the chairs of the senate finance committee, the assembly ways\nand means committee, and the senate and assembly health committees with\nregard to the intent to adopt or apply the methodology or procedure,\nincluding a detailed explanation of the methodology or procedure.\n  (viii) Thirty days prior to executing an allocation or modification to\nan allocation made pursuant to this subdivision, the commissioner shall\nprovide written notice to the chairs of the senate finance committee,\nthe assembly ways and means committee, and the senate and assembly\nhealth committees with regard to the intent to distribute such funds.\nSuch notice shall include, but not be limited to, information on the\nmethodology used to distribute the funds, the facility specific\nallocations of the funds, any facility specific project descriptions or\nrequirements for receiving such funds, the multi-year impacts of these\nallocations, and the availability of federal matching funds. The\ncommissioner shall provide quarterly reports to the chair of the senate\nfinance committee and the chair of the assembly ways and means committee\non the distribution and disbursement of such funds.\n  (g) Notwithstanding subdivision (a) of this section, and within\namounts appropriated for such purposes as described herein, the\ncommissioner may award a temporary adjustment to the non-capital\ncomponents of rates, or make temporary lump-sum Medicaid payments to\neligible facilities with serious financial instability and requiring\nextraordinary financial assistance to enable such facilities to maintain\noperations and vital services while such facilities establish long term\nsolutions to achieve sustainable health services. Provided, however, the\ncommissioner is authorized to make such a temporary adjustment or make\nsuch temporary lump sum payment only pursuant to criteria, an\napplication, and an evaluation process acceptable to the commissioner in\nconsultation with the director of the division of the budget. The\ndepartment shall publish on its website the criteria, application, and\nevaluation process and notification of any award recipients.\n  (i) Eligible facilities shall include:\n  (A) a public hospital, which for purposes of this subdivision, shall\nmean a general hospital operated by a county, municipality or a public\nbenefit corporation;\n  (B) a federally designated critical access hospital;\n  (C) a federally designated sole community hospital;\n  (D) a residential health care facility;\n  (E) a general hospital that is a safety net hospital, which for\npurpose of this subdivision shall mean:\n  (1) such hospital has at least thirty percent of its inpatient\ndischarges made up of Medicaid eligible individuals, uninsured\nindividuals or Medicaid dually eligible individuals and with at least\nthirty-five percent of its outpatient visits made up of Medicaid\neligible individuals, uninsured individuals or Medicaid dually-eligible\nindividuals; or\n  (2) such hospital serves at least thirty percent of the residents of a\ncounty or a multi-county area who are Medicaid eligible individuals,\nuninsured individuals or Medicaid dually-eligible individuals; or\n  (3) such hospital that, in the discretion of the commissioner, serves\na significant population of Medicaid eligible individuals, uninsured\nindividuals or Medicaid dually-eligible individuals; or\n  (F) an independent practice association or accountable care\norganization authorized under applicable regulations that participate in\nmanaged care provider network arrangements with any of the provider\ntypes in subparagraphs (A) through (F) of this paragraph; or an entity\nthat was formed as a preferred provider system pursuant to the delivery\nsystem reform incentive payment (DSRIP) program and collaborated with an\nindependent practice association that received VBP innovator status from\nthe department for purposes of meeting DSRIP goals, and which preferred\nprovider system remains operational as an integrated care system.\n  (ii) Eligible applicants must demonstrate that without such award,\nthey will be in serious financial instability, as evidenced by:\n  (A) certification that such applicant has less than fifteen days cash\nand equivalents;\n  (B) such applicant has no assets that can be monetized other than\nthose vital to operations; and\n  (C) such applicant has exhausted all efforts to obtain resources from\ncorporate parents and affiliated entities to sustain operations.\n  (iii) Awards under this subdivision shall be made upon application to\nthe department.\n  (A) Eligible applicants shall submit a completed application to the\ndepartment.\n  (B) The department may authorize initial award payments to eligible\napplicants based solely on the criteria pursuant to paragraphs (i) and\n(ii) of this subdivision.\n  (C) Notwithstanding subparagraph (B) of this paragraph, the department\nmay suspend or repeal an award if an eligible applicant fails to submit\na multi-year transformation plan pursuant to subparagraph (A) of this\nparagraph that is acceptable to the department by no later than the\nthirtieth day of September two thousand fifteen.\n  (D) Applicants under this subdivision shall detail the extent to which\nthe affected community has been engaged and consulted on potential\nprojects of such application, as well as any outreach to stakeholders\nand health plans.\n  (E) The department shall review all applications under this\nsubdivision, and determine:\n  (1) applicant eligibility;\n  (2) each applicant's projected financial status;\n  (3) criteria or requirements upon which an award of funds shall be\nconditioned, such as a transformation plan, savings plan or quality\nimprovement plan. In the event the department requires an applicant to\nenter into an agreement or contract with a vendor or contractor, the\ndepartment shall approve the selected vendor or contractor but shall not\nspecify the vendor or contractor that the applicant must utilize; and\n  (4) the anticipated impact of the loss of such services.\n  (F) After review of all applications under this subdivision, and a\ndetermination of the aggregate amount of requested funds, the department\nmay make awards to eligible applicants; provided, however, that such\nawards may be in an amount lower than such requested funding, on a per\napplicant or aggregate basis.\n  (iv) Awards under this subdivision may not be used for:\n  (A) capital expenditures, including, but not limited to: construction,\nrenovation and acquisition of capital equipment, including major medical\nequipment; or\n  (B) bankruptcy-related costs.\n  (v) Payments made to awardees pursuant to this subdivision that are\nmade on a monthly basis will be based on the applicant's actual monthly\nfinancial performance during such period and the reasonable cash amount\nnecessary to sustain operations for the following month. The applicant's\nmonthly financial performance shall be measured by such applicant's\nmonthly financial and activity reports, which shall include, but not be\nlimited to, actual revenue and expenses for the prior month, projected\ncash need for the current month, and projected cash need for the\nfollowing month.\n  (vi) The department shall provide a report on a quarterly basis to the\nchairs of the senate finance, assembly ways and means, senate health and\nassembly health committees. Such reports shall be submitted no later\nthan sixty days after the close of the quarter, and shall include for\neach award, the name of the applicant, the amount of the award, payments\nto date, and a description of the status of the multi-year\ntransformation plan pursuant to paragraph (iii) of this subdivision.\n