NY Pub Health L § 4403-G (2021)
2021 New York Laws PBH - Public Health Article 44 - Health Maintenance Organizations 4403-G - Developmental Disabilty Individual Support and Care Coordination Organizations.

* §  4403-g.  Developmental  disability  individual  support  and care coordination organizations. 1. Definitions. As used in this section:  (a) "Developmental disability individual support and care coordination organization" or "DISCO" 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, as determined by the commissioner  and  the commissioner  of  the office for people with developmental disabilities, on a capitated basis in accordance with this section, for  a  population of  persons  with developmental disabilities, as such term is defined in section 1.03 of the  mental  hygiene  law,  which  the  organization  is authorized to enroll.  (b)  "Eligible  applicant"  means  an entity controlled by one or more non-profit  organizations  which  have  a  history   of   providing   or coordinating  health  and  long  term  care  services  to  persons  with developmental disabilities.  (c) "Habilitation  services"  means  services  available  through  the state's  home  and  community  based  services  waiver  for persons with developmental disabilities, state plan for medical assistance,  and  any other  authorized  federal  funding for such services designed to assist persons  in  acquiring,  retaining,   and   improving   the   self-help, socialization,  and  adaptive skills necessary to reside successfully in home and community based settings.  (d) "Health and long term care services"  means  comprehensive  health services  and  other  services as determined by the commissioner and the commissioner of the office for people with  developmental  disabilities, whether  provided by state-operated programs or not-for-profit entities, including,  but  not  limited  to,  habilitation  services,   home   and community-based  and  institution-based  long  term  care  services, 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. Each person  enrolled  in  a  DISCO  shall receive   health  and  long  term  care  services  designed  to  achieve person-centered outcomes, to enable that person  to  live  in  the  most integrated  setting  appropriate  to  that person's needs, and to enable that person to interact with nondisabled persons to the  fullest  extent possible  in  social,  workplace  and other community settings, provided that all such services are consistent with such person's wishes  to  the extent  that  such wishes are known and in accordance with such person's needs.   2. Approval authority. An applicant shall be issued a  certificate  of authority  as  a DISCO for purposes of participating in the people first waiver program pursuant to section 13.40 of the mental hygiene law  upon a  determination  by the commissioner and the commissioner of the office for people with developmental disabilities that the  applicant  complies with the operating requirements for a DISCO under this section.   3.  Application  for  certificate of authority; form. The commissioner and the  commissioner  of  the  office  for  people  with  developmental disabilities  shall  jointly develop application forms for a certificate of authority to operate a DISCO. An eligible applicant shall  submit  an application for a certificate of authority to operate a DISCO upon forms prescribed  by  such commissioners. 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 DISCO with projections of enrollment that  will  result  in  a  fiscally sound plan;  (b)  A  description of the services to be covered by such DISCO, which must include all health and long  term  care  services,  as  defined  in  paragraph  (d) of subdivision one of this section, and other services as determined by the commissioner and the commissioner of  the  office  for people with developmental disabilities;  (c)  A  description  of  the proposed marketing plan and how marketing materials will be presented to persons with  developmental  disabilities or their authorized decision makers for the purposes of enabling them to make an informed choice;  (d) The names of the providers proposed to be in the DISCO's network;  (e)  Evidence  of  the  character  and  competence  of the applicant's proposed operators, and of the incorporators, directors, stockholders or members of the applicant;  (f) Adequate documentation of the appropriate licenses, certifications or approvals to provide care as planned, including affiliate  agreements or proposed contracts with such providers as may be necessary to provide the  full  complement  of  services  required  to be provided under this section;  (g)  A  description  of  the  proposed  quality-assurance  mechanisms, grievance  procedures, mechanisms to protect the rights of enrollees and care   coordination   services   to    ensure    continuity,    quality, appropriateness and coordination of care;  (h)  A  description of the proposed quality assessment and performance improvement program that includes performance and outcome based  quality standards   for  enrollee  health  status  and  satisfaction,  and  data collection and reporting for standard performance measures;  (i) A description of the management systems  and  systems  to  process payment for covered services;  (j)  A  description of how achievement of person-centered outcomes, as defined by the commissioner of the office for people with  developmental disabilities,  shall be assessed, as well as a description of how health and long term care services shall be used to meet such outcomes;  (k) A description of the mechanism to maximize  reimbursement  of  and coordinate  services  reimbursed  pursuant to title XVIII of the federal social security act 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;  (l)  A  description  of  the  systems for securing and integrating any potential sources of funding for services provided  by  or  through  the organization,  including,  but  not  limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act and all other available sources of funding;  (m)  A  description  of  the  proposed  contractual  arrangements  for providers  of health and long term care services in the benefit package; and  (n) Information related to the financial condition of the applicant.   4. Certificate of  authority  approval.  The  commissioner  shall  not approve  an  application  for  a  certificate  of  authority  unless the applicant demonstrates to the satisfaction of the commissioner  and  the commissioner of the office for people with developmental disabilities:  (a)   That   it  will  have  in  place  acceptable  quality  assurance mechanisms, grievance procedures and mechanisms to protect the rights of enrollees and care coordination services to ensure continuity,  quality, appropriateness and coordination of care;  (b)  That  it  will  have in place a mechanism or means to assure that persons with developmental disabilities can make informed choices either individually or through  an  authorized  decision  maker  regarding  the  development of a person-centered plan, as defined by the commissioner of the office for people with developmental disabilities;  (c)  That  it  has  developed  a  quality  assessment  and performance improvement program that includes performance and outcome based  quality standards  for  enrollee  health status and satisfaction, which shall be reviewed by the commissioner and the  commissioner  of  the  office  for people  with  developmental disabilities. The program shall include data collection and reporting for standard performance measures  as  required by  the  commissioner and the commissioner of the office for people with developmental disabilities;  (d) That an otherwise eligible enrollee  shall  not  be  involuntarily disenrolled without the prior approval of the commissioner of the office for people with developmental disabilities;  (e)  That  the applicant shall not use deceptive or coercive marketing methods to encourage participants to enroll and that the applicant shall not distribute marketing materials to potential  enrollees  before  such materials have been approved by the commissioner and the commissioner of the office for people with developmental disabilities;  (f)  Satisfactory  evidence  of  the  character  and competence of the applicant's proposed operators, incorporators,  directors,  stockholders and members;  (g)  Reasonable assurance that the applicant will provide high quality services to an enrolled population,  that  the  applicant's  network  of providers   is  adequate  and  that  such  providers  have  demonstrated sufficient competency to deliver high quality services to  the  enrolled population  and that policies and procedures will be in place to address the cultural and linguistic needs of the enrolled population;  (h) Sufficient management systems capacity to meet the requirements of this section and the ability to efficiently process payment for  covered services;  (i)   Readiness  and  capability  to  maximize  reimbursement  of  and coordinate services reimbursed pursuant to title XVIII  of  the  federal social security act 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;  (j) Readiness  and  capability  of  organizing,  marketing,  managing, promoting  and  operating  a health and long term care services plan, or has an affiliation agreement with an entity that has such readiness  and capability;  (k) Willingness and capability of taking, or cooperating in, all steps necessary  to  secure and integrate any potential sources of funding for services provided by or through the DISCO, including,  but  not  limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act and all other available sources of funding;  (l) That the contractual arrangements for providers of health and long term  care  services in the benefit package are sufficient to ensure the availability and accessibility of such services to the proposed enrolled population consistent with guidelines established  by  the  commissioner and  the  commissioner  of  the  office  for  people  with developmental disabilities.  With  respect  to  a  person  receiving   non-residential services  operated,  certified,  funded,  authorized  or approved by the office for people with developmental disabilities prior to enrollment in the DISCO, such guidelines shall require the DISCO to contract with  the current provider of non-residential services at the rates established by the  office for ninety days, in order to ensure continuity of care. With respect to a  person  living  in  a  residential  facility  operated  or  certified by the office for people with developmental disabilities prior to  enrollment  in the DISCO, such guidelines shall require the DISCO to contract with the provider of residential services for that residence at the rates established by the office for so long as such individual lives in that residence pursuant to an approved plan of care;  (m)  That  the  applicant  is  financially  responsible  and  shall be expected to meet its obligations to its enrolled members; and  (n) That  the  applicant  shall  assess  person-centered  outcomes  as defined  by the commissioner of the office for people with developmental disabilities, and has satisfactory mechanisms by which  it  will  assess how  health  and  long  term  care  services  will  be used to meet such outcomes.   5. Enrollment. (a) Only persons with  developmental  disabilities,  as determined  by  the  office  for people with developmental disabilities, shall be eligible to enroll in DISCOs.  (b) The office for  people  with  developmental  disabilities  or  its designee  shall  enroll an eligible person in the DISCO chosen by him or her, his or her guardian or other legal  representative,  provided  that such DISCO is authorized to enroll such person.  (c)  No  person  with  a  developmental disability who is receiving or applying for medical assistance and who is  receiving,  or  eligible  to receive,  services  funded,  certified,  authorized  or  approved by the office for people with developmental disabilities, shall be required  to enroll  in  a  DISCO  in  order  to  receive such services until program features and reimbursement rates are approved by  the  commissioner  and the   commissioner   of   the   office  for  people  with  developmental disabilities, and until such commissioners determine that  there  are  a sufficient  number  of  plans  authorized to coordinate care for persons with developmental disabilities pursuant to this  article  operating  in such  person's  county  of  residence  to meet the needs of persons with developmental disabilities, and that such DISCOs meet the  standards  of this  section. No person shall be required to enroll in a DISCO in order to receive services operated, funded, certified, authorized or  approved by the office for people with developmental disabilities until there are at  least  two  plans  authorized  to  coordinate  care for persons with developmental disabilities pursuant to this  article  in  such  person's county  of  residence,  unless  federal  approval  is secured to require enrollment when there are less than two such entities operating in  such county.  (d)  Persons  required  to  enroll  in a DISCO shall have no less than sixty days to select a DISCO, and such persons and  their  guardians  or other  legal  representatives shall be provided with information to make an  informed  choice.  Where  a  person,   guardian   or   other   legal representative  has not selected a DISCO, the commissioner of the office for people with developmental disabilities or its designee shall  enroll such  person in a DISCO chosen by such commissioner, taking into account quality, capacity and geographic accessibility. The  office  for  people with  developmental  disabilities  or  its  designee shall automatically re-enroll a person with the same DISCO if there is a  loss  of  medicaid eligibility of two months or less.  (e)  Enrolled  persons may change their enrollment at any time without cause, provided, however, that a person required to enroll in a DISCO in order to receive services funded, licensed, authorized  or  approved  by the office for people with developmental disabilities may only disenroll from  a DISCO if he or she enrolls in another DISCO authorized to enroll him or her. Such disenrollment shall be  effective  no  later  than  the first day of the second month following the request.  (f)  A  DISCO may request the involuntary disenrollment of an enrolled person  in  writing  to  the  office  for  people   with   developmental disabilities.  Such  disenrollment  shall  not  be  effective  until the request is reviewed  and  approved  by  such  office.  Notice  shall  be provided  to  the  enrollee  and the enrollee may request a fair hearing regarding such disenrollment. The department and the office  for  people with  developmental  disabilities  shall  adopt  rules  and  regulations governing this process.   6. Assessments. The office for people with developmental disabilities, or its designee, shall complete a comprehensive  assessment  that  shall include,  but  not  be limited to, an evaluation of the medical, social, habilitative and environmental needs of each prospective enrollee  in  a DISCO  as  such needs relate to each individual's health, safety, living environment and wishes, to the extent that such wishes are  known.  This assessment  shall  also  serve  as  the  basis  for  the development and provision of an appropriate plan of care for the enrollee. Such plan  of care shall be focused on the achievement of person-centered outcomes and shall  be consistent with and help inform any other person-centered plan required for the enrollee by the commissioner of the office  for  people with  developmental  disabilities.  The assessment shall be completed by the office for people with developmental disabilities or in consultation with the prospective enrollee's health care practitioner  as  necessary. The   commissioner   of   the   office  for  people  with  developmental disabilities shall prescribe the forms on which the assessment shall  be made.   The  office  for  people  with  developmental  disabilities  may designate the DISCO to perform reassessments, but  shall  not  designate the DISCO to perform the initial assessment of a prospective enrollee.   7.  Program oversight and administration. (a) The commissioner and the commissioner of the office for people  with  developmental  disabilities shall  jointly  promulgate  regulations  to  implement  this section, to provide for oversight of DISCOs,  including  on  site  reviews,  and  to ensure  the  quality,  appropriateness  and  cost-effectiveness  of  the services provided by DISCOs.  (b) The commissioner and the commissioner of  the  office  for  people with developmental disabilities may waive rules and regulations of their respective  department  or  office,  including but not limited to, those pertaining to duplicative requirements concerning record keeping, boards of directors, staffing and reporting, when such waiver shall promote the efficient delivery of appropriate, quality, cost-effective services  and when the health, safety and general welfare of DISCO enrollees shall not be  impaired  as a result of such waiver. The commissioners shall report annually  to  the  legislature  and  to  the  joint   advisory   council established  pursuant  to section 13.40 of the mental hygiene law on all rules and regulations waived pursuant to this  paragraph.  In  order  to achieve  DISCO  system  efficiencies and coordination and to promote the objectives of high quality, integrated  and  cost  effective  care,  the commissioners shall 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 commissioners  shall  require  DISCOs  to  utilize  quality  improvement measures,  based  on the achievement of personal outcomes and quality of life, health outcomes data, and assessments  of  individual  and  family satisfaction,  for internal quality assessment processes and may utilize such measures as part of the single coordinated surveillance process.  (c) Notwithstanding any inconsistent provision of the social  services law   to  the  contrary,  the  commissioner  in  consultation  with  the commissioner of the office for people  with  developmental  disabilities 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 are inconsistent with the flexibility necessary   for   the  efficient  administration  of  DISCOs,  and  such regulations shall provide that such provisions shall not  be  applicable to enrollees of DISCOs, provided that such determinations are consistent with applicable federal law and regulation.  (d)  The  commissioner  and  the commissioner of the office for people with developmental disabilities shall ensure, through  periodic  reviews of   DISCOs,  that  organization  services  are  promptly  available  to enrollees  when  appropriate.  Such  periodic  reviews  shall  be   made according   to   standards   as   determined  by  the  commissioners  in regulations.  (e) The commissioner and the commissioner of  the  office  for  people with developmental disabilities shall have the authority to conduct both on  site  and  off site reviews of DISCOs. Such reviews may include, but not be limited to, the  following  components:  governance;  fiscal  and financial   reporting;   recordkeeping;  internal  controls;  marketing; network  contracting  and  adequacy;   program   integrity   assurances; utilization  control  and review systems; grievance and appeals systems; quality assessment and assurance systems;  care  management;  enrollment and disenrollment; management information systems, and other operational and management components.   8.   Solvency.   (a)   The  commissioner,  in  consultation  with  the commissioner of the office for people with  developmental  disabilities, shall  be  responsible  for  evaluating,  approving  and  regulating all matters relating to fiscal solvency,  including  reserves,  surplus  and provider  contracts.  The  commissioner  shall promulgate regulations to implement this section. The commissioner, in the administration of  this subdivision:  (i)  shall  be guided by the standards that 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  the DISCO. The commissioner  shall  be  satisfied  that  the  eligible   applicant   is financially  sound,  and has made adequate provisions to pay for quality services that are cost  effective  and  appropriate  to  needs  and  the protection of health, safety, welfare and satisfaction of those served.   9.   Role  of  the  superintendent  of  financial  services.  (a)  The superintendent  of  financial  services  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 financial services shall relate to premiums charged to such  enrollees  not  eligible  under  title  XIX  of the federal social security act.  (b) The  superintendent  of  financial  services  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.    10. Payment rates for DISCO 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.  Payment rates shall be actuarially sound for covered services, including but not limited  to  habilitation  services, and,  when  there  is  sufficient  reliable  data  to  permit,  shall be risk-adjusted to take into account the characteristics of enrollees,  or proposed enrollees, which may include: 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  and the   commissioner   of   the   office  for  people  with  developmental disabilities. The risk adjusted  premiums  may  also  be  combined  with disincentives  or  requirements  designed  to mitigate any incentives to obtain higher payment categories.   11. Continuation  of  certificate  of  authority.  Continuation  of  a certificate  of  authority issued under this section shall be contingent upon compliance by the DISCO with applicable provisions of this  section and  rules and regulations promulgated thereunder; the continuing fiscal solvency of the DISCO; 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.   12. Protection of enrollees. The  commissioner  may,  in  his  or  her discretion  and  with  the concurrence of the commissioner of the office for people with developmental  disabilities,  for  the  purpose  of  the protection  of  enrollees, impose measures including, but not limited to bans on further enrollments until any identified problems  are  resolved to  the  satisfaction  of the commissioner, or fines upon a finding that the DISCO has failed to comply with the  provisions  of  any  applicable statute, rule or regulation.   13.  Information sharing. The commissioner and the commissioner of the office for people with developmental disabilities  shall,  as  necessary and  consistent  with  federal  regulations  promulgated pursuant to the Health Insurance Portability and Accountability  Act,  share  with  such DISCO the following data if it is available:  (a)  information  concerning  utilization of services and providers by each of its enrollees prior to and during enrollment.  (b) Aggregate data concerning utilization and costs for enrollees  and for  comparable  cohorts  served  through  the  Medicaid fee-for-service program.   14. Applicability of other  laws.  DISCOs  shall  be  subject  to  the provisions  of  the  insurance  law and regulations applicable to health maintenance organizations,  this  article  and  regulations  promulgated thereunder.  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.   15.  Effectiveness.  The  provisions  of  this  section  shall only be effective if, for so long as, and to the extent that  federal  financial participation  is  available  for  the costs of services provided by the DISCOs to enrollees who are recipients of medical assistance pursuant to title  eleven  of  article  five  of  the  social  services   law.   The commissioner  shall  make any necessary amendments to the state plan for medical  assistance  submitted  pursuant  to   section   three   hundred sixty-three-a  of  the  social  services  law, and/or submit one or more applications for waivers of the federal social security act, in order to ensure such federal financial participation.   * NB Repealed September 30, 2023