NY Pub Health L § 4403-C (2021)
2021 New York Laws PBH - Public Health Article 44 - Health Maintenance Organizations 4403-C - Comprehensive HIV Special Needs Plan Certification.

* §  4403-c. Comprehensive HIV special needs plan certification. 1. No person or group of persons may operate a comprehensive HIV special needs plan without  first  obtaining  a  certificate  of  authority  from  the commissioner. Any person may apply for a comprehensive HIV special needs certificate  of  authority,  provided,  however,  that  a  shared health facility, as defined in article forty-seven of this chapter,  shall  not be eligible for such a certificate.   2.   An   applicant  for  certification  shall  submit  the  following information and documentation to the satisfaction of the commissioner:  (a) a copy of  the  applicant's  basic  organizational  documents  and agreements  of  the  applicant  and  all  network members, including all contracts and agreements relating to the provision of HIV services;  (b) a copy of any current licensure or certification maintained by the applicant;  (c) a description of any experience the  applicant  may  have  had  in providing HIV services which are licensed, certified, funded or approved by   the  department,  including  identification  of  any  disciplinary, administrative or criminal proceedings related to such services  in  the past  ten  years,  the  resolution  thereof,  and  any other proceedings currently pending;  (d) full disclosure of the financial condition of the applicant and of members  of  the  board,  officers,  controlling  persons,  owners   and partners,  including, but not limited to, a statement of the applicant's assets, resources, accounts receivable, liabilities and proposed sources and uses of funds and the most recent  certified  income  statement  and balance sheet;  (e)  a demonstration of the applicant's ability to provide or continue to provide quality HIV services;  (f) a description of the geographic area served and to  be  served  by the applicant;  (g)  a  description  of the applicant's current capacity, and proposed capacity, to provide or arrange for the provision of  comprehensive  HIV services for a defined geographic area to a defined population; and  (h) such other information as the commissioner shall require.   3.  The commissioner shall not issue a comprehensive HIV special needs plan certificate of  authority  to  an  applicant  therefor  unless  the applicant demonstrates that:  (a)  it  has defined an enrolled population to which the comprehensive HIV special needs plan proposes  to  provide  comprehensive  HIV  health services,  has  demonstrated  a  willingness to enroll any person who is eligible for enrollment  within  its  defined  catchment  area  and  has established a mechanism by which the enrolled population may participate in determining the policies of the organization;  (b) it has defined a specific network of providers and facilities that are capable of providing comprehensive HIV special needs services to the enrolled population described in paragraph (a) of this subdivision;  (c)   it  has  the  capability  of  organizing,  marketing,  managing, promoting and operating a comprehensive HIV special needs plan;  (d) it is financially responsible and sound and  may  be  expected  to meet  its  obligations to its enrolled members. For the purposes of this paragraph, "financially responsible" means that the applicant is capable of assuming full financial risk on a prospective basis for the provision of comprehensive  HIV  special  needs  services  within  the  geographic catchment  area  defined  by  the  applicant  except  that  it may allow providers to share financial risk under the terms of their contract,  or it  may  obtain  insurance  or  make  other arrangements for the cost of providing comprehensive HIV special needs health services to  enrollees; any  insurance  or  other arrangements proposed to meet this requirement  shall be approved as to adequacy as a prerequisite to  the  issuance  of any  comprehensive  HIV  special  needs  certificate of authority by the commissioner. In making a  determination  of  financial  soundness,  the commissioner   shall   consider  financial  information,  contracts  and agreements required as part of the  application  for  a  certificate  of authority  and  any  other  information that the commissioner shall deem necessary to make that determination. For purposes of this section,  any grants  awarded  to  an  applicant contingent upon its approval as a HIV special  needs  plan  certified  pursuant  to  this  section,  shall  be considered when making a determination of fiscal soundness;  (e) it has established a system which appropriately accounts for costs and  a  uniform system of reports and audits meeting the requirements of the commissioner;  (f) the character, competence and standing in  the  community  of  the proposed  incorporators,  directors,  sponsors,  or  stockholders of the plan, and its network providers, are satisfactory to the commissioner;  (g) it is willing and able to assure that necessary HIV services  will be   provided  in  a  timely  manner  to  assure  the  availability  and accessibility of adequate personnel and facilities; to assure continuity of care for enrollees; and to implement  procedures  for  referrals,  as requested,  to  appropriate  care  for  affected  family  members of the enrolled population;  (h) the prepayment mechanism of its comprehensive  HIV  special  needs plan, the bases upon which the providers of health care are compensated, and  the anticipated use of allied health personnel are conducive to the use of ambulatory care and the efficient use of hospital services;  (i) acceptable procedures have been established  for  the  conduct  of outreach  and enrollment of persons with HIV infection including persons who are homeless, substance users and other vulnerable populations;  (j) acceptable procedures have  been  developed  to  communicate  with participants in a linguistically and culturally competent manner;  (k) acceptable procedures have been established to monitor the quality of  care provided by the plan and to assure that all care rendered meets clinical standards of HIV care as established and maintained by the AIDS Institute of the New York state department of health;  (l) approved mechanisms exist to  resolve  complaints  and  grievances initiated by any enrolled member; and  (m)  the  requirements of this article and any regulations promulgated pursuant thereto have been met and will continue to be met.   4. The commissioner shall not issue a comprehensive HIV special  needs certificate  of  authority  unless the applicant has demonstrated to the commissioner's satisfaction that the requirements of  this  article  and any  regulations  promulgated  pursuant  thereto  have been met and will continue to be met, provided, however, that the commissioner may  impose alternative   requirements,  or  portions  thereof,  particularly  those related to capitalization, if he or she determines that such alternative requirements will serve to promote the high quality, efficient provision of comprehensive health services or services required  by  HIV  positive persons,  will  promote  the  development of HIV special needs plans and that the proposed plan will provide an  appropriate  and  cost-effective alternative  method  for the delivery of such services in a manner which will meet the needs of the population to be served.   5. The commissioner shall make a determination on an application after receipt of all required and requested information and documentation.   6. The commissioner shall review and approve any current  or  proposed contracts or agreements with current or prospective network members, and provided  further,  that  the commissioner shall specifically review and approve any proposed provisions in such contracts or agreements with the  prospective or existing network members which specify any  risk  sharing arrangements.   7.  The  commissioner  may  revoke, limit or annul a comprehensive HIV special needs plan certificate  of  authority  in  accordance  with  the provisions of section forty-four hundred four of this article.   8.  A comprehensive HIV special needs plan, certified pursuant to this section, shall be responsible for providing or arranging for all medical assistance services defined under section three hundred sixty-five-a  of the  social  services law, including delivery of a comprehensive benefit package, which shall include early and  periodic  screening;  adolescent health;  diagnosis  and  treatment  and  child/teen  health  screenings; referrals  for  necessary  services;  linkages  to  HIV  counseling  and testing;  and  HIV  prevention and education activities. A comprehensive HIV special needs plan  provider  shall  be  responsible  for  assisting enrollees  in  the  prudent selection of such services including but not limited to:  (a) referral, coordination, monitoring and follow-up  with  regard  to other  medical  services  providers,  as  appropriate  for diagnosis and treatment, or direct provision of all medical assistance services;  (b) methods  of  assuring  enrollees'  access  to  specialty  services outside the comprehensive HIV special needs plan's network or panel when the  plan  does  not  have  a provider with the appropriate training and experience in its network to meet the particular health  care  needs  of the participant;  (c)   the   establishment  of  appropriate  utilization  and  referral requirements for  physicians,  hospitals,  and  other  medical  services providers, including emergency room visits and inpatient admissions;  (d)  the  creation  of  mechanisms  to ensure the participation of HIV centers of excellence and community-based HIV care providers;  (e)  implementation  of  procedures  for  managing  the  care  of  all participants,  including  the  use  of facility and community-based case managers with expertise in the care needs of persons with HIV infection, and the designation of a specialist as a primary care practitioner;  (f) development of appropriate methods of managing the HIV care  needs of  homeless,  substance users and other vulnerable populations, who are enrolled in the comprehensive HIV special needs plan, to assure that all necessary services are made available in a timely manner, in  accordance with prevailing standards of professional medical practice, and that all appropriate referrals and follow-up treatments are provided;  (g) provision of all early periodic screening, diagnosis and treatment services,   as   well  as  periodic  screening  and  referral,  to  each participant under the age of twenty-one, at  regular  intervals  and  as medically appropriate;  (h)   direct   provision  of  or  arrangement  for  the  provision  of comprehensive prenatal care services to  all  pregnant  participants  in accordance  with  standards adopted by the department of health and with statute and regulations governing HIV  testing  of  pregnant  women  and newborns;  (i)  implementation  of  procedures  for written agreements, which may include contractual  agreements,  with  community-based  social  service providers  to  ensure access to the full continuum of services needed by HIV infected persons; and  (j)  permit  the  use  of  standing  referrals  to   specialists   and subspecialists   for   participants   who   require  the  care  of  such practitioners on a regular basis.   9. Notwithstanding any other provision of  law,  a  comprehensive  HIV special  needs  plan  certified  pursuant  to  this  section shall limit  enrollment to HIV positive persons, except for the following persons who may be enrolled regardless of their HIV status:  (a) related children up to the age of twenty-one; and  (b) individuals who are homeless or who are members of other high need populations  which, in the discretion of the commissioner, would benefit from receiving services  through  a  plan  certified  pursuant  to  this section;  provided  however,  that rates paid to special needs plans for such populations  shall  be  comparable  to  rates  paid  for  the  same populations in other managed care plans.   10.  Enrollment  and  disenrollment. (a) Enrollment in a comprehensive HIV special needs plan shall  be  voluntary  and  persons  eligible  for enrollment  in  such  plans  shall be afforded the opportunity to choose among such plans, to the extent available  in  the  locality  where  the person  currently  resides;  provided  however  that  enrollment  may be automatic after federal approval of a waiver or waivers or other federal action  required  to  institute  automatic   enrollment,   pursuant   to applicable  provisions  of  the  federal  social  security act, and that persons automatically enrolled in a comprehensive HIV special needs plan shall have the opportunity to withdraw from such plan in accordance with paragraph (g) of subdivision four, paragragh (b)  of  subdivision  three and  subdivision  twelve  of  section  three hundred sixty-four-j of the social services law. The department shall ensure to the  maximum  extent practicable that individuals are provided with a choice of comprehensive HIV special needs plans.  (b)   The   commissioner  shall  promulgate  regulations  establishing criteria which relate to enrollment and disenrollment  of  enrollees  in comprehensive  HIV  special needs plans. Comprehensive HIV special needs plans shall not request  disenrollment  of  an  enrollee  based  on  any diagnosis,  condition,  or  perceived  diagnosis  or  condition,  or  an enrollee's efforts to exercise his  or  her  rights  under  a  grievance process.  (c)  Prior  to  enrollment  in  a comprehensive HIV special needs plan individuals are to be provided with a full written  explanation  of  all fee-for-service  and other options and given a reasonable opportunity to choose between the comprehensive HIV special needs plan  and  the  other options.  In addition, enrollees shall be provided notice of their right to disenroll from  the  plan,  except  as  otherwise  provided  in  this subdivision.  (d)  If  an enrollee requests to change a provider or disenroll from a comprehensive HIV special needs plan pursuant to this  subdivision,  the social  services  district and the plan shall implement such change in a timely  manner  in  accordance  with  standards   established   by   the commissioner.  When  an enrollee changes comprehensive HIV special needs plan providers the plan must  effectuate  the  timely  transfer  of  all necessary medical records.  (e)  Plans  shall  ensure  that  any  new  enrollee  whose health care provider is not a member of the plan's provider network, who enrolls  in the  plan,  can  continue  with  an ongoing course of treatment with the enrollee's current health care provider during a transitional period  of up  to  sixty days from the effective date of enrollment. If an enrollee elects to continue to  receive  care  from  such  health  care  provider pursuant  to  this  paragraph,  such  care  shall  be  authorized by the comprehensive HIV special needs plan for the transitional period only if the health care provider agrees: (1) to accept  reimbursement  from  the comprehensive HIV special needs plan at rates established by the plan as payment  in  full,  which  rates  shall  be  no  more  than the level of reimbursement applicable to similar providers within the plan's  network for  such  services;  (2)  to  adhere  to  the  plan's quality assurance  requirements and agrees to provide to the  plan  any  necessary  medical information  related  to  such  care; and (3) to otherwise adhere to the plan's policies and procedures including, but not limited to  procedures regarding referrals and obtaining pre-authorization and a treatment plan approved  by the comprehensive HIV special needs plan. In no event shall this paragraph be construed to require a comprehensive HIV special needs plan to provide coverage for benefits not otherwise covered;  (f) Comprehensive HIV special needs plans shall ensure that for  those enrollees  whose  health  care  provider  leaves  the  comprehensive HIV special needs  plan's  network  of  providers,  the  enrollee  shall  be permitted  to  continue an ongoing course of treatment with such current health care provider during a transitional period of up to  ninety  days from the date of notice to the enrollee of the provider's disaffiliation from  the  plan's  network. If an enrollee elects to continue to receive care from such health care provider pursuant  to  this  paragraph,  such care shall be authorized by the comprehensive HIV special needs plan for the  transitional period only if the health care provider agrees: (1) to accept reimbursement from the comprehensive HIV special  needs  plan  at rates  established  by the plan as payment in full, which rates shall be no more than the level of reimbursement applicable to similar  providers within  the  plan's  network  for  such  services;  (2) to adhere to the organization's quality assurance requirements and agrees to  provide  to the plan any necessary medical information related to such care; and (3) to otherwise adhere to the plan's policies and procedures including, but not   limited   to   procedures   regarding   referrals   and  obtaining pre-authorization and a treatment plan approved by the comprehensive HIV special needs plan. In no event shall this  paragraph  be  construed  to require  a  comprehensive HIV special needs plan to provide coverage for benefits not otherwise covered;   11. The commissioner shall develop and certify capitated payment rates for comprehensive HIV special needs plans, subject to  the  approval  of the  director  of  the  division of the budget. In developing capitation rates the commissioner shall be authorized to consider,  at  a  minimum, the  age, eligibility category, historic cost and utilization of covered enrollees and  covered  services,  anticipated  costs  of  emerging  HIV treatment modalities and the expected impact of delivering services in a managed care environment.   12.  Plans  certified under this section must submit financial reports in a manner and frequency established by the commissioner.   13. The department shall establish a stop-loss reinsurance program for comprehensive HIV special needs plans. The stop-loss reinsurance program shall be designed in a manner which promotes the development and ongoing financial viability of the  comprehensive  HIV  special  needs  plan  by providing  reasonable  protection  for  catastrophic  cases  and adverse selection.   14. Quality assurance. (a) The department  shall  be  responsible  for establishing a comprehensive quality assurance program for comprehensive HIV  special  needs  plans. This quality assurance program shall reflect clinical standards of HIV care established and maintained  by  the  AIDS Institute   in   the   department.  The  department  shall  monitor  the performance, quality and utilization of such plans on at least an annual basis. Such plans must describe and document the existence of a  formal, organized  quality  assurance  program  with  the  capacity to identify, address and follow-up on issues which  concern  the  care  and  services delivered  to enrollees. Such reviews are to include, but not be limited to, the following:  (1) compliance with performance and  outcome-based  quality  standards promulgated by the department;  (2)  appropriateness,  accessibility,  timeliness, and quality of care delivered by such providers;  (3)  referrals,  coordination, monitoring and follow-up with regard to other medical service providers;  (4) methods of ensuring enrollees access to specialty services outside the plan's network or panel when the plan does not have a provider  with the  appropriate training and experience in the network or panel to meet the particular HIV care needs of the participant;  (5) delivery of a comprehensive benefit package, including  early  and periodic  screening;  adolescent  health;  diagnosis  and  treatment and child/teen health screenings;  referrals  for  necessary  services,  and linkages  to  HIV  counseling  and testing; HIV prevention and education activities;  (6) mechanisms for the provision of all information  to  enrollees  in clear  and  coherent  terms  that  are commonly used in a culturally and linguistically appropriate and understandable manner;  (7) existence of a management information system  to  support  quality assurance  activities, which system shall provide for the collection and utilization of data including but not limited to enrollment, complaints, encounters and specific performance indicators; and  (b) the commissioner shall have access  to  patient  specific  medical information  and  enrollee  medical  records,  including encounter data, maintained by a comprehensive HIV special needs plan for the purposes of quality assurance and oversight.  (c)  The  department  shall  be  responsible  for   establishing   and maintaining  a uniform system of reports relating to the quality of care and services furnished by comprehensive HIV special needs plans.   15. The commissioner may revoke, limit or annul  a  comprehensive  HIV special needs certificate of authority in accordance with the provisions of section forty-four hundred four of this article.   16.   Confidentiality.   Except   as  provided  in  paragraph  (c)  of subdivision  fourteen  of  this  section,   any   enrollee   information maintained  by  a  comprehensive  HIV  special  needs plan shall be kept confidential in accordance with section forty-four  hundred  eight-a  of this  article  and  where applicable section 33.13 of the mental hygiene law and any other applicable state or federal law.   17.  Utilization  review.  A  comprehensive  HIV  special  needs  plan authorized under this section is required to meet requirements set forth in article forty-nine of this chapter.   18.  Disclosure.  Each  enrollee  and  prospective  enrollee  prior to enrollment in a comprehensive HIV special needs plan shall  be  provided with written disclosure information related to enrollee benefits, rights and  obligations  pursuant  to  section forty-four hundred eight of this article.   19.  Grievance  procedure.  Comprehensive  HIV  special  needs   plans authorized  under  this  section  shall  be  required  to meet grievance procedures requirements pursuant to section forty-four  hundred  eight-a of this article.   20.  Prohibitions.  A  comprehensive HIV special needs plan authorized under this section shall be required to meet the requirements set  forth in section forty-four hundred six-c of this article.   21.  The  commissioner  is  authorized, subject to the approval of the director of the division of the budget, and within amounts appropriated, to make grants to those entities  seeking  certification  to  operate  a comprehensive  HIV  special  needs plan to aid in the development of the systems, organizational structures and networks necessary to  operate  a managed care program. The commissioner is authorized to develop criteria for  distribution of the grants. The grants may also be used to meet the  capitalization standards and the reserve and escrow deposit requirements established for comprehensive HIV special needs plans.   22.  Comprehensive  HIV  special needs plans shall function distinctly from other comprehensive or non-comprehensive health plans  operated  by the  same organization, corporation, persons, county or municipality and shall be clearly distinguished from  any  other  functions  through  the maintenance   of   separate   records,  reports  and  accounts  for  the comprehensive HIV special needs plan function.   23. The  commissioner  shall  establish  reserve  and  escrow  deposit requirements for HIV special needs plans.   24.  Nothing  in  this  section  shall  be construed to require that a health maintenance organization, certified pursuant to the provisions of this  article,  apply  for  a  comprehensive  HIV  special  needs   plan certificate  of  authority  pursuant to this section; provided, however, that a  health  maintenance  organization,  certified  pursuant  to  the provisions  of  this  article, which proposes to operate a comprehensive HIV special needs  plan  shall  be  required  to  comply  with  all  the provisions of this section.   * NB Repealed March 31, 2025