NY Soc Serv L § 364-J (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 364-J - Managed Care Programs.

* §  364-j.  Managed  care  programs.  1. Definitions. As used in this section, unless the context clearly requires  otherwise,  the  following terms shall mean:  (a)  "Participant".  A  medical  assistance recipient who receives, is required to receive or elects to receive his or her  medical  assistance services from a managed care provider.  (b)  "Managed  care provider". An entity that provides or arranges for the  provision  of  medical  assistance   services   and   supplies   to participants  directly  or indirectly (including by referral), including case management; and:  (i) is authorized to operate under article forty-four  of  the  public health  law  or article forty-three of the insurance law and provides or arranges, directly or indirectly (including  by  referral)  for  covered comprehensive  health  services  on a full capitation basis, including a special needs managed care plan or comprehensive HIV special needs plan; or   ** (ii) is authorized as a partially  capitated  program  pursuant  to section  three  hundred sixty-four-f of this title or section forty-four hundred three-e of the public health law or section 1915b of the  social security act; or   ** NB Effective until September 30, 2023   ** (ii)  is  authorized  as  a partially capitated program pursuant to section three hundred sixty-four-f of this title or  section  forty-four hundred  three-e of the public health law or section 1915b of the social security act.   ** NB Effective September 30, 2023   ** (iii) is authorized to operate  under  section  forty-four  hundred three-g of the public health law.   ** NB Repealed September 30, 2023  (c)  "Managed  care  program".  A  statewide  program in which medical assistance recipients enroll  on  a  voluntary  or  mandatory  basis  to receive medical assistance services, including case management, directly and  indirectly  (including  by  referral) from a managed care provider, including as  applicable,  a  special  needs  managed  care  plan  or  a comprehensive HIV special needs plan, under this section.  (d)   "Medical   services   provider".   A   physician,  nurse,  nurse practitioner,   physician   assistant,   licensed   midwife,    dentist, optometrist  or  other  licensed  health care practitioner authorized to provide medical assistance services.  (e) "Center of  excellence."  A  health  care  facility  certified  to operate  under article twenty-eight of the public health law that offers specialized treatment expertise in HIV care services as defined  by  the commissioner of health.  (f)  "Primary  care  practitioner".  A physician or nurse practitioner providing primary care to and management of the medical and health  care services of a participant served by a managed care provider.  (g)   "AIDS".   AIDS  shall  have  the  same  meaning  as  in  article twenty-seven-f of the public health law.  (h) "HIV infection". HIV infection shall have the same meaning  as  in article twenty-seven-f of the public health law.  (i)  "HIV-related  illness".  HIV-related  illness shall have the same meaning as in article twenty-seven-f of the public health law.  (j) "Specialty care center". A "specialty care center" shall mean only such centers as are accredited or designated by an agency of  the  state or  federal government or by a voluntary national health organization as having special expertise in treating the disease or condition for  which it is accredited or designated.  (k)  "Special  care".  Care,  services  and  supplies  relating to the treatment  of  mental   illness,   mental   retardation,   developmental disabilities,  alcoholism,  alcohol  abuse  or  substance  abuse, or HIV infection/AIDS.  (l)  "Responsible  special  care  agency".  Whichever of the following state agencies has responsibility for the special care in question:  the department of health, the office of mental health, the office for people with  developmental  disabilities,  or  the  office  of  alcoholism  and substance abuse services.  (m) "Special needs managed care plan" shall have the same  meaning  as in section forty-four hundred one of the public health law.  (n) "Comprehensive HIV special needs plan" shall have the same meaning as in section forty-four hundred three-c of the public health law.  (o)  "Third-party  payor".  Any  entity  or  program that is or may be liable to pay the costs of health and medical care  of  a  recipient  of medical  assistance  benefits,  including  insurers licensed pursuant to article thirty-two or forty-three of the insurance law, or organizations certified pursuant to article forty-four of the public health law.  (p) "Grievance".  Any  complaint  presented  by  a  participant  or  a participant's   representative  for  resolution  through  the  grievance process of a managed care provider.  (q) "Emergency medical condition". A medical or behavioral  condition, the  onset  of  which  is  sudden,  that manifests itself by symptoms of sufficient severity, including severe pain, that  a  prudent  layperson, who  possesses  an  average  knowledge  of  medicine  and  health, could reasonably expect the absence of immediate medical attention  to  result in:  (i)  placing the health of the person afflicted with such condition in serious jeopardy, or in the case of a  behavioral  condition  placing the  health of the person or others in serious jeopardy; or (ii) serious impairment  to  such  person's  bodily  functions;  or   (iii)   serious dysfunction  of any bodily organ or part of such person; or (iv) serious disfigurement of such person.  (r) "Emergency care". Health care procedures, treatments or  services, including  psychiatric  stabilization  and  medical  detoxification from drugs or alcohol, that are provided for an emergency medical condition.  (s) "Existing rates". The rates  paid  pursuant  to  the  most  recent executed  contract between a local social services district or the state and a managed care provider.  (t) "Managed care rating regions".  The  regions  established  by  the department  of  health for the purpose of setting regional premium rates for managed care providers.  (u) "Premium group". The various  demographic,  gender  and  recipient categories  utilized  for  rate-setting  purposes  by  the department of health.  (v)  "Upper  payment  limit".  The  maximum  reimbursement  that   the department  of  health  may pay a managed care provider for providing or arranging for medical services to participants in a managed care program in accordance with the  federal  social  security  act  and  regulations promulgated thereunder.  (x)  "Persons  with  serious  mental  illness".  Individuals  who meet criteria established by the commissioner of mental health,  which  shall include  persons who have a designated diagnosis of mental illness under the most recent edition of the  diagnostic  and  statistical  manual  of mental  disorders, and (i) whose severity and duration of mental illness results in substantial functional disability or (ii) who require  mental health services on more than an incidental basis.  (y)  "Children  and  adolescents with serious emotional disturbances". Individuals under eighteen years of age who meet criteria established by  the commissioner of mental health,  which  shall  include  children  and adolescents  who have a designated diagnosis of mental illness under the most recent edition of the diagnostic and statistical manual  of  mental disorders, and (i) whose severity and duration of mental illness results in  substantial  functional disability or (ii) who require mental health services on more than an incidental basis.  (z) "Credentialed alcoholism and substance abuse  counselor  (CASAC)". An  individual  credentialed  by  the office of alcoholism and substance abuse  services  in  accordance  with  applicable  regulations  of   the commissioner of alcoholism and substance abuse services.   2.   (a)   The   commissioner  of  health,  in  cooperation  with  the commissioner and the  commissioners  of  the  responsible  special  care agencies  shall  establish  managed  care  programs,  under  the medical assistance program,  in  accordance  with  applicable  federal  law  and regulations.  The  commissioner  of  health,  in  cooperation  with  the commissioner, is authorized and directed, subject to the approval of the director of the state division of  the  budget,  to  apply  for  federal waivers  when  such action would be necessary to assist in promoting the objectives of this section.  (b) The commissioner of health has authority to allow social  services districts  to seek an exemption from this section for up to two years if the social services district can demonstrate  and  the  commissioner  of health and the commissioner of responsible special care agencies concurs that  the  district  has  insufficient  capacity  to  participate in the program. An exemption under this paragraph may be renewed for additional two year periods.  (c) The commissioner of  health,  jointly  with  the  commissioner  of mental  health  and  the  commissioner of alcoholism and substance abuse services shall be authorized to establish  special  needs  managed  care plans,   under  the  medical  assistance  program,  in  accordance  with applicable federal law and regulations. The commissioner of  health,  in cooperation  with  such  commissioners,  is  authorized,  subject to the approval of the director of the division of the  budget,  to  apply  for federal  waivers  when  such  action  would  be  necessary  to assist in promoting the objectives of this section. With regard  to  such  special needs  managed  care  plans,  in addition to the applicable requirements established in this section, such commissioners shall jointly  establish standards and requirements to:  (i)  ensure  that  any  special  needs managed care plan shall have an adequate network of providers to meet the behavioral health  and  health needs  of  enrollees, and shall review the adequacy prior to approval of any special needs managed  care  plan,  and  upon  contract  renewal  or expansion.  To  the  extent that the network has been determined to meet standards set forth in subdivision five of section  four  thousand  four hundred  three  of  the  public health law, such network shall be deemed adequate;  (ii) ensure that any special needs managed care plan shall make  level of  care  and  coverage determinations utilizing evidence-based tools or guidelines designed to address the behavioral health needs of enrollees;  (iii)  ensure  sufficient  access  to  behavioral  health  and  health services   for   eligible   enrollees  by  establishing  and  monitoring penetration rates of special needs managed care plans; and  (iv) establish standards to encourage the use  of  services,  products and   care   recommended,   ordered  or  prescribed  by  a  provider  to sufficiently address the behavioral health and health services needs  of enrollees;  and monitor the application of such standards to ensure that they sufficiently address the  behavioral  health  and  health  services needs of enrollees.    3. (a) Every person eligible for or receiving medical assistance under this  article,  who  resides  in  a  social  services district providing medical assistance, which  has  implemented  the  state's  managed  care program  shall  participate  in  the program authorized by this section. Provided,  however,  that  participation  in a comprehensive HIV special needs plan also shall be in accordance with article  forty-four  of  the public health law and participation in a special needs managed care plan shall also be in accordance with article forty-four of the public health law and article thirty-one of the mental hygiene law.  (d)  Until  such  time as program features and reimbursement rates are approved by  the  commissioner  of  health,  in  consultation  with  the commissioners of the office of mental health, the office for people with developmental  disabilities, the office of children and family services, and  the  office  of  alcoholism  and  substance  abuse   services,   as appropriate,  the  following  services  shall not be provided to medical assistance recipients through managed care programs established pursuant to this section, and shall continue to be provided  outside  of  managed care   programs   and   in   accordance  with  applicable  reimbursement methodologies; provided, however, that no medical  assistance  recipient shall  be  required  to  obtain  services  that  are  certified, funded, authorized or approved by the commissioner of the office for people with developmental disabilities through a  managed  care  program  until  the program features approved by the commissioner of health, in consultation with  the  commissioner  of  the  office  for  people with developmental disabilities, include features for habilitation services as  defined  in paragraph  c of subdivision one of section forty-four hundred three-g of the public health law:  (i) day treatment services provided to individuals with  developmental disabilities;  (ii)  comprehensive  medicaid  case  management  services  provided to individuals with developmental disabilities;  (iii)  services  provided  pursuant  to  article  eighty-nine  of  the education law;  (iv)   mental  health  services  provided  by  a  certified  voluntary free-standing day treatment program where such services are provided  in conjunction  with  educational  services authorized in an individualized education program in accordance with regulations promulgated pursuant to article eighty-nine of the education law;  (v) long term services as determined by the commissioner of the office for people with developmental disabilities, provided to individuals with developmental disabilities at facilities licensed  pursuant  to  article sixteen  of  the  mental hygiene law or clinics serving individuals with developmental disabilities at facilities licensed  pursuant  to  article twenty-eight of the public health law;  (vi) TB directly observed therapy;  (vii) AIDS adult day health care;  (viii) HIV COBRA case management; and  (ix) other services as determined by the commissioner of health.  (d-1) Services provided pursuant to title two-A of article twenty-five of  the  public  health  law shall not be provided to medical assistance recipients through managed care programs established  pursuant  to  this section,  and  shall  continue  to  be  provided outside of managed care programs and in accordance with applicable reimbursement methodologies.  (d-2) Services provided  pursuant  to  waivers,  granted  pursuant  to subsection  (c)  of  section 1915 of the federal social security act, to persons suffering  from  traumatic  brain  injuries  or  qualifying  for nursing home diversion and transition services, shall not be provided to  medical  assistance  recipients  through  managed care programs until at least January first, two thousand twenty-six.   ** (d-3) Services provided in school-based health centers shall not be provided  to medical assistance recipients through managed care programs established pursuant to this section until at  least  April  first,  two thousand  twenty-three,  and  shall  continue  to be provided outside of managed care programs.   ** NB Repealed April 1, 2023  (e) The following categories of individuals may be required to  enroll with  a  managed  care  program  when program features and reimbursement rates are approved by the commissioner of health  and,  as  appropriate, the  commissioners of the office of mental health, the office for people with developmental disabilities,  the  office  of  children  and  family services, and the office of alcoholism and substance abuse services:  (i)  an individual dually eligible for medical assistance and benefits under the federal Medicare program; provided,  however,  nothing  herein shall:  (a)  require  an individual enrolled in a managed long term care plan, pursuant to section  forty-four  hundred  three-f  of  the  public health  law, to disenroll from such program; or (b) make enrollment in a Medicare managed care plan a condition of the individual's participation in the managed care program pursuant to  this  section,  or  affect  the individual's  entitlement to payment of applicable Medicare managed care or fee for service  coinsurance  and  deductibles  by  the  individual's managed care provider.  (ii) an individual eligible for supplemental security income;  (iii) HIV positive individuals;  (iv)  persons with serious mental illness and children and adolescents with serious emotional disturbances, as defined  in  section  forty-four hundred one of the public health law;  (v)  a  person receiving services provided by a residential alcohol or substance abuse program or facility for the developmentally disabled;  (vi) a person receiving services  provided  by  an  intermediate  care facility for the developmentally disabled or who has characteristics and needs similar to such persons;  (vii)  a  person  with  a  developmental  or  physical  disability who receives home and  community-based  services  or  care-at-home  services through  a  demonstration waiver under section eleven hundred fifteen of the federal social security act, existing waivers under section nineteen hundred fifteen (c) of the federal  social  security  act,  or  who  has characteristics and needs similar to such persons;  (viii)  a  person  who  is eligible for medical assistance pursuant to subparagraph  twelve  or  subparagraph  thirteen  of  paragraph  (a)  of subdivision one of section three hundred sixty-six of this title;  (ix)  a  person receiving services provided by a long term home health care  program,  or  a  person  receiving   inpatient   services   in   a state-operated  psychiatric facility or a residential treatment facility for children and youth;  (x) certified blind or disabled children  living  or  expected  to  be living separate and apart from the parent for thirty days or more;  (xi) residents of nursing facilities;  (xii)  a foster child in the placement of a voluntary agency or in the direct care of the local social services district;  (xiii) a person or family that is homeless;  (xiv)  individuals  for  whom  a  managed   care   provider   is   not geographically  accessible  so  as to reasonably provide services to the person. A managed care provider is not geographically accessible if  the person  cannot access the provider's services in a timely fashion due to distance or travel time;  (xv) a person eligible  for  Medicare  participating  in  a  capitated demonstration program for long term care;  (xvi) an infant living with an incarcerated mother in a state or local correctional facility as defined in section two of the correction law;  (xvii)  a person who is expected to be eligible for medical assistance for less than six months;  (xviii) a person who is eligible for medical assistance benefits  only with respect to tuberculosis-related services;  (xix)  individuals  receiving  hospice services at time of enrollment; provided, however, that this clause shall not be construed to require an individual enrolled in a managed long term care  plan  or  another  care coordination  model,  who subsequently elects hospice, to disenroll from such program;  (xx) a  person  who  has  primary  medical  or  health  care  coverage available  from  or under a third-party payor which may be maintained by payment, or part payment, of the premium or cost sharing  amounts,  when payment of such premium or cost sharing amounts would be cost-effective, as determined by the local social services district;  (xxi)   a  person  receiving  family  planning  services  pursuant  to subparagraph six of paragraph (b) of subdivision one  of  section  three hundred sixty-six of this title;  (xxii)  a  person  who  is eligible for medical assistance pursuant to paragraph (d) of subdivision four of section three hundred sixty-six  of this title;  (xxiii)  individuals  with  a  chronic medical condition who are being treated by a specialist physician that is not associated with a  managed care provider in the individual's social services district; and  (xxiv) Native Americans.   4.  The  managed  care  program  shall  provide participants access to comprehensive and coordinated health care delivered in a cost  effective manner consistent with the following provisions:  (a)  (i)  a  managed  care  provider  shall  arrange for access to and enrollment of primary care  practitioners  and  other  medical  services providers.  Each  managed  care provider shall possess the expertise and sufficient resources to assure the delivery of quality medical  care  to participants  in  an  appropriate  and  timely  manner  and  may include physicians, nurse practitioners, county health departments, providers of comprehensive  health  service  plans  licensed  pursuant   to   article forty-four  of  the  public health law, and hospitals and diagnostic and treatment centers licensed  pursuant  to  article  twenty-eight  of  the public  health law or otherwise authorized by law to offer comprehensive health services or facilities licensed  pursuant  to  articles  sixteen, thirty-one and thirty-two of the mental hygiene law.  (ii)  provided, however, if a major public hospital, as defined in the public health law, is designated by the  commissioner  of  health  as  a managed  care provider in a social services district the commissioner of health shall designate at least one other managed care provider which is not a major public hospital or  facility  operated  by  a  major  public hospital; and  (iii)  under  a  managed  care program, not all managed care providers must be required to provide the same set of medical assistance services. The managed  care  program  shall  establish  procedures  through  which participants  will  be assured access to all medical assistance services to which they are otherwise entitled, other  than  through  the  managed care provider, where:  (A)  the  service  is  not reasonably available directly or indirectly from the managed care provider,  (B) it is necessary because of emergency or geographic unavailability, or  (C) the services provided are family planning services; or  (D)  the services are dental services and are provided by a diagnostic and treatment center licensed under article twenty-eight of  the  public health  law which is affiliated with an academic dental center and which has  been  granted  an  operating  certificate   pursuant   to   article twenty-eight  of  the public health law to provide such dental services. Any diagnostic and treatment center providing dental  services  pursuant to  this  clause  shall  prior  to June first of each year report to the governor, temporary president of the senate and speaker of the  assembly on  the following: the total number of visits made by medical assistance recipients during the immediately preceding calendar year; the number of visits made by medical  assistance  recipients  during  the  immediately preceding  calendar year by recipients who were enrolled in managed care programs; the number of visits made  by  medical  assistance  recipients during  the  immediately  preceding calendar year by recipients who were enrolled in managed care programs that  provide  dental  benefits  as  a covered  service;  and the number of visits made by the uninsured during the immediately preceding calendar year; or  (E) the services are optometric services, as defined  in  article  one hundred  forty-three  of  the  education  law,  and  are  provided  by a diagnostic and treatment center licensed under article  twenty-eight  of the  public health law which is affiliated with the college of optometry of the state university of New  York  and  which  has  been  granted  an operating  certificate  pursuant  to  article twenty-eight of the public health law to provide  such  optometric  services.  Any  diagnostic  and treatment  center  providing optometric services pursuant to this clause shall prior to June first of each year report to the governor, temporary president of the senate and speaker of the assembly  on  the  following: the  total number of visits made by medical assistance recipients during the immediately preceding calendar year; the number of  visits  made  by medical  assistance recipients during the immediately preceding calendar year by recipients who were  enrolled  in  managed  care  programs;  the number  of  visits  made  by  medical  assistance  recipients during the immediately preceding calendar year by recipients who were  enrolled  in managed  care  programs  that  provide  optometric benefits as a covered service; and the number of visits  made  by  the  uninsured  during  the immediately preceding calendar year; or  (E-1) the services are vision care services rendered to a student at a school based health center approved by the commissioner pursuant to this clause. The commissioner may approve up to five pilot programs at school based  health  centers  in partnership with a charitable foundation that agrees to provide free of charge  eyeglass  frames  and  lenses  at  the centers   pursuant   to  a  memorandum  of  agreement  approved  by  the commissioner. The commissioner may approve the rate for such vision care services at the rate for such services  when  provided  by  a  federally qualified  health  center  or  when  provided by another entity licensed pursuant to article twenty-eight of the public health law  and  eligible for  the ambulatory patient group rate approved for vision care services by the commissioner; or  (F) other services as defined by the commissioner of health.  (b) Participants shall select a managed care provider from among those designated  under  the  managed  care  program,  provided,  however,   a participant  shall be provided with a choice of no less than two managed care providers. Notwithstanding the foregoing, a local  social  services district  designated  a  rural  area  as defined in 42 U.S.C. 1395ww may limit a participant to one managed care provider,  if  the  commissioner  and  the  local social services district find that only one managed care provider is available. A managed care provider in  a  rural  area  shall offer   a   participant   a  choice  of  at  least  three  primary  care practitioners  and  permit  the individual to obtain a service or seek a provider outside of the managed  care  network  where  such  service  or provider is not available from within the managed care provider network.  (c)  Participants  shall select a primary care practitioner from among those designated  by  the  managed  care  provider.  In  all  districts, participants  shall  be  provided  with  a  choice of no less than three primary care practitioners. In the event that  a  participant  does  not select  a  primary  care  practitioner,  the  participant's managed care provider shall select a primary care practitioner for  the  participant, taking into account geographic accessibility.  (d)  For  all  other medical services, except as provided in paragraph (c) of this subdivision, if  a  sufficient  number  of  medical  service providers are available, a choice shall be offered.  (e)  (i)  In  any social services district which has not implemented a mandatory  managed  care  program  pursuant   to   this   section,   the commissioner   of   health  shall  establish  marketing  and  enrollment guidelines,  including  but  not  limited   to   regulations   governing face-to-face  marketing  and  enrollment encounters between managed care providers and recipients of medical assistance and  locations  for  such encounters.  Such  regulations  shall  prohibit, at a minimum, telephone cold-calling and door-to-door  solicitation  at  the  homes  of  medical assistance   recipients.   The   regulations   shall  also  require  the commissioner  of  health  to  approve  any  local   district   marketing guidelines.   Managed  care  providers  shall  be  permitted  to  assist participants in completion of enrollment forms at approved  health  care provider sites and other approved locations. In no case may an emergency room  be deemed an approved location. Upon enrollment, participants will sign an attestation that: they have been informed that managed care is a voluntary program; participants have a choice of managed care providers; participants  have  a  choice  of  primary   care   practitioners;   and participants  must  exclusively  use their primary care practitioner and plan providers except as otherwise provided in  this  section  including but  not  limited  to  the  exceptions  listed  in subparagraph (iii) of paragraph (a) of this subdivision. Managed care  providers  must  submit enrollment  forms  to the local department of social services. The local department of social services will provide or arrange for  an  audit  of managed  care provider enrollment forms; including telephone contacts to determine if participants were provided with the information required by this subparagraph. The commissioner of health  may  suspend  or  curtail enrollment  or  impose  sanctions  for  failure  to appropriately notify clients as required in this subparagraph.  (ii) In any social services district which has implemented a mandatory managed care program pursuant to this section, the requirements of  this subparagraph  shall  apply to the extent consistent with federal law and regulations. The department of health, may contract  with  one  or  more independent   organizations   to   provide   enrollment  counseling  and enrollment services, for participants required to enroll in managed care programs, for each social services district requesting the  services  of an  enrollment  broker.  To select such organizations, the department of health shall  issue  a  request  for  proposals  (RFP),  shall  evaluate proposals  submitted  in response to such RFP and, pursuant to such RFP, shall  award  a  contract  to  one  or  more  qualified  and  responsive organizations.  Such  organizations  shall  not  be  owned, operated, or controlled by any governmental agency, managed care provider, or medical services provider.  (iii) Such independent organizations shall develop  enrollment  guides for  participants  which  shall  be approved by the department of health prior to distribution.  (iv)  Local  social  services  districts  or  enrollment organizations through their enrollment counselors shall provide participants with  the opportunity  for face to face counseling including individual counseling upon request of the participant.  Local  social  services  districts  or enrollment  organizations through their enrollment counselors shall also provide participants with information in a culturally and linguistically appropriate and understandable manner, in  light  of  the  participant's needs,  circumstances and language proficiency, sufficient to enable the participant to make an informed selection of a  managed  care  provider. Such  information  shall  include,  but  shall not be limited to: how to access care within the program; a description of the medical  assistance services  that  can  be  obtained  other  than  through  a  managed care provider; the available managed care providers and the scope of services covered by each; a listing of the medical services providers  associated with  each  managed  care  provider; the participants' rights within the managed care program;  and  how  to  exercise  such  rights.  Enrollment counselors  shall inquire into each participant's existing relationships with medical  services  providers  and  explain  whether  and  how  such relationships  may  be  maintained  within the managed care program. For enrollments made during face to face counseling, if the participant  has a  preference  for  particular  medical  services  providers, enrollment counselors shall verify with the medical services  providers  that  such medical  services  providers whom the participant prefers participate in the managed care provider's network  and  are  available  to  serve  the participant.  (v)  Upon  delivery  of  the  pre-enrollment  information,  the  local district or the enrollment organization shall certify the  participant's receipt  of such information. Upon verification that the participant has received  the  pre-enrollment  education  information,  a  managed  care provider,  a  local district or the enrollment organization may enroll a participant into a managed care provider. Managed  care  providers  must submit enrollment forms to the local department of social services. Upon enrollment,  participants  will  sign an attestation that they have been informed that: participants have a choice  of  managed  care  providers; participants have a choice of primary care practitioners; and, except as otherwise  provided  in  this  section, including but not limited to the exceptions listed  in  subparagraph  (iii)  of  paragraph  (a)  of  this subdivision,  participants  must  exclusively  use  their  primary  care practitioners and plan providers. The commissioner of health may suspend or curtail enrollment or impose sanctions for failure  to  appropriately notify clients as required in this subparagraph.  (vi)  Enrollment  counselors  or local social services districts shall further inquire into  each  participant's  health  status  in  order  to identify  physical  or  behavioral  conditions  that  require  immediate attention or continuity of care, and provide to participants information regarding health care options available to persons with  HIV  and  other illnesses  or conditions under the managed care program. Any information disclosed to counselors shall be kept confidential  in  accordance  with applicable  provisions of the public health law, and as appropriate, the mental hygiene law.  (vii) Any marketing materials developed by  a  managed  care  provider shall  be  approved  by  the  department  of  health or the local social services district,  and  the  commissioner  of  mental  health  and  the commissioner   of   alcoholism   and  substance  abuse  services,  where appropriate, within sixty days prior to distribution  to  recipients  of  medical  assistance.  All  marketing  materials shall be reviewed within sixty days of submission.  (viii)  In  any  social  services  district  which  has  implemented a mandatory  managed  care  program  pursuant   to   this   section,   the commissioner   of   health  shall  establish  marketing  and  enrollment guidelines,  including  but  not  limited   to   regulations   governing face-to-face  marketing  and  enrollment encounters between managed care providers and recipients of medical assistance and  locations  for  such encounters.  Such  regulations  shall  prohibit, at a minimum, telephone cold-calling and door-to-door  solicitation  at  the  homes  of  medical assistance   recipients.   The   regulations   shall  also  require  the commissioner  of  health  to  approve  any  local   district   marketing guidelines.  (f)  (i) Participants shall choose a managed care provider at the time of application for medical  assistance;  if  the  participant  does  not choose such a provider the commissioner shall assign such participant to a  managed  care  provider in accordance with subparagraphs (ii), (iii), (iv) and (v) of this  paragraph.  Participants  already  in  receipt  of medical  assistance  shall  have  no less than thirty days from the date selected by the district to enroll in the managed care program to select a managed care provider and shall be provided with information  to  make an informed choice. Where a participant has not selected such a provider the  commissioner  of  health shall assign such participant to a managed care provider which, if appropriate, may be a special needs managed care plan, taking into account capacity  and  geographic  accessibility.  The commissioner  may  after  the period of time established in subparagraph (ii) of this paragraph assign participants to a  managed  care  provider taking  into  account  quality  performance  criteria and cost. Provided however, cost criteria shall  not  be  of  greater  value  than  quality criteria in assigning participants.  (ii)  The  commissioner  may  assign  participants  pursuant  to  such criteria on a weighted basis, provided however that  for  twelve  months following  implementation  of a mandatory program, pursuant to a federal waiver, twenty-five percent of the participants that  do  not  choose  a managed  care  provider shall be assigned to managed care providers that satisfy the criteria set forth in subparagraph (i)  of  this  paragraph, and  are  controlled by, sponsored by, or otherwise affiliated through a common governance or through a parent  corporation  with,  one  or  more private  not-for-profit  or  public  general hospitals or diagnostic and treatment centers licensed  pursuant  to  article  twenty-eight  of  the public health law.  (iii)  For  twelve  months  following  the  twelve months described in subparagraph (ii) of this paragraph twenty-two and one-half  percent  of the  participants  that  do  not choose a managed care provider shall be assigned to managed care providers, that satisfy the criteria set  forth in  subparagraph  (i) of this paragraph and are controlled by, sponsored by, or otherwise affiliated through a common  governance  or  through  a parent  corporation  with,  one or more private not-for-profit or public general hospitals or diagnostic and treatment centers licensed  pursuant to article twenty-eight of the public health law.  (iv)  For  twelve  months  following  the  twelve  months described in subparagraph (iii) of this paragraph twenty percent of the  participants that  do  not  choose  a managed care provider shall be assigned equally among each of the managed care providers, that satisfy the criteria  set forth  in  subparagraph  (i)  of  this  paragraph and are controlled by, sponsored by, or otherwise affiliated through  a  common  governance  or through  a parent corporation with one or more private not-for-profit or  public general hospitals or diagnostic and  treatment  centers  licensed pursuant to article twenty-eight of the public health law.  (v)  The  commissioner  shall  assign  all  participants not otherwise assigned to a managed care plan pursuant to  subparagraphs  (ii),  (iii) and  (iv)  of  this  paragraph  equally  among  each of the managed care providers that meet the criteria established in subparagraph (i) of this paragraph;  provided,  however,  that  the  commissioner  shall   assign individuals  meeting  the  criteria  for  enrollment  in a special needs managed care plan to such plan or plans where available.  (g) If another managed care provider is  available,  participants  may change  such  provider  or  plan  without  cause  within  thirty days of notification  of  enrollment  or  the  effective  date  of   enrollment, whichever  is  later with a managed care provider by making a request of the local social services district except  that  such  period  shall  be forty-five days for participants who have been assigned to a provider by the commissioner of health. However, after such thirty or forty-five day period,  whichever  is  applicable, a participant may be prohibited from changing managed care providers more frequently than once  every  twelve months,  as permitted by federal law except for good cause as determined by the commissioner of health through regulations.  (h) If another medical services provider is available,  a  participant may  change  his  or her provider of medical services (including primary care  practitioners)  without  cause   within   thirty   days   of   the participant's  first  appointment  with  a  medical services provider by making a request of the  managed  care  provider.  However,  after  that thirty  day  period,  no participant shall be permitted to change his or her provider of medical services other than once every six months except for good cause as determined by the commissioner through regulations.  (i) A managed care  provider  requesting  a  disenrollment  shall  not disenroll  a  participant without the prior approval of the local social services district  in  which  the  participant  resides,  provided  that disenrollment  from  a  special needs managed care plan must comply with the standards  of  the  commissioner  of  health,  the  commissioner  of alcoholism  and substance abuse services, and the commissioner of mental health. A managed care provider shall not  request  disenrollment  of  a participant based on any diagnosis, condition, or perceived diagnosis or condition,  or  a  participant's  efforts  to exercise his or her rights under a  grievance  process,  provided  however,  that  a  managed  care provider  may,  where medically appropriate, request permission to refer participants to a managed care provider that is a special needs  managed care  plan  or  a  comprehensive HIV special needs plan after consulting with such  participant  and  upon  obtaining  his/her  consent  to  such referral,  and  provided  further that a special needs managed care plan may, where clinically appropriate, disenroll individuals who  no  longer require  the  level of services provided by a special needs managed care plan.  (j) A managed care provider shall  be  responsible  for  providing  or arranging  for medical assistance services and assisting participants in the prudent selection of such services, including but not limited to:  (1) management of the medical and health care needs of participants by the participant's designated primary  care  practitioners  or  group  of primary  care  practitioners  to assure that all services provided under the managed care program and which are found to be  necessary  are  made available in a timely manner, in accordance with prevailing standards of professional medical practice and conduct; and  (2)  use of appropriate patient assessment criteria to ensure that all participants are provided with appropriate services,  including  special care;  (3)  implementation of procedures, consistent with the requirements of paragraph (c) of subdivision six of section forty-four hundred three  of the  public  health  law for managing the care of participants requiring special care which may include the use of special case managers  or  the designation  of  a  specialist  as  a  primary  care  practitioner  by a participant requiring special care on more than an incidental basis;  (4) implementation of procedures, consistent with the requirements  of paragraph  (b) of subdivision six of section forty-four hundred three of the public health law  to  permit  the  use  of  standing  referrals  to specialists  and subspecialists for participants who require the care of such practitioners on a regular basis; and  (5) referral, coordination, monitoring and follow-up  with  regard  to other  medical  services  providers  as  appropriate  for  diagnosis and treatment, or  direct  provision  of  some  or  all  medical  assistance services.  (k)  A  managed  care provider shall establish appropriate utilization and referral requirements for physicians, hospitals, and  other  medical services   providers  including  emergency  room  visits  and  inpatient admissions.  (l) A managed  care  provider  shall  be  responsible  for  developing appropriate  methods  of  managing  the health care and medical needs of homeless and other vulnerable participants to assure that all  necessary services  provided under the managed care program are made available and that all appropriate referrals and follow-up treatment are provided,  in a timely manner, in accordance with prevailing standards of professional medical practice and conduct.  (m) A managed care provider shall provide all early periodic screening diagnosis and treatment services, as well as interperiodic screening and referral,  to  each  participant under the age of twenty-one, at regular intervals, as medically appropriate.  (n) A managed care provider shall  provide  or  arrange,  directly  or indirectly  (including  by  referral) for the provision of comprehensive prenatal care services to all pregnant participants in  accordance  with standards adopted by the department of health.  (o)  A  managed  care  provider  shall provide or arrange, directly or indirectly, (including by  referral)  for  the  full  range  of  covered services to all participants, notwithstanding that such participants may be  eligible to be enrolled in a comprehensive HIV special needs plan or special needs managed care plan.  (p) A managed care provider shall implement procedures to  communicate appropriately  with  participants  who  have difficulty communicating in English and to  communicate  appropriately  with  visually-impaired  and hearing-impaired participants.  (q)  A  managed  care  provider shall comply with applicable state and federal law  provisions  prohibiting  discrimination  on  the  basis  of disability.  (r)  A  managed  care  provider shall provide services to participants pursuant to an order of a  court  of  competent  jurisdiction,  provided however,  that  such  services shall be within such provider's or plan's benefit package and are reimbursable under  title  xix  of  the  federal social security act, provided that services for a substance use disorder shall  be  provided  by  a  program  licensed,  certified  or  otherwise authorized by the office of alcoholism and substance abuse services.  (s) Managed  care  providers  shall  be  provided  with  the  date  of recertification  for  medical  assistance  of  each  of  their  enrolled participants in conjunction  with  the  monthly  enrollment  information conveyed to managed care providers.  (t)  Prospective  enrollees  shall  be  advised,  in written materials related to enrollment, to verify with  the  medical  services  providers they  prefer,  or  have an existing relationship with, that such medical services providers participate in the selected managed  care  provider's network and are available to serve the participant.  (u)  A  managed  care provider that provides coverage for prescription drugs shall permit each participant  to  fill  any  mail  order  covered prescription,  at  his  or  her  option,  at  any mail order pharmacy or non-mail-order retail pharmacy in the managed care provider network.  If the  managed  care  provider  has  designated one or more pharmacies for filling  prescriptions  for  a  particular  drug  or  drugs,  then  such prescriptions  may  be filled, at the participant's option, at any other pharmacy  in  the  network,  if  the  network  pharmacy  chosen  by  the participant  offers  to accept a price that is comparable to that of the pharmacy designated by the managed care provider. For  the  purposes  of this  section,  "mail  order  pharmacy"  means  a pharmacy whose primary business is  to  receive  prescriptions  by  mail,  telefax  or  through electronic  submissions,  and to dispense medication to patients through the use of the United States mail or other common  or  contract  carrier services,  and  provides  any  consultation with patients electronically rather than face to face. Every non-mail-order retail  pharmacy  in  the managed  care  provider's  network with respect to any prescription drug shall be deemed to be in the managed care provider's network  for  every covered prescription drug.  (v)  A  managed  care provider must allow enrollees to access chemical dependence treatment services from facilities certified by the office of alcoholism and substance abuse  services,  even  if  such  services  are rendered  by  a  practitioner  who  would  not  otherwise  be separately reimbursed, including but not limited to a credentialed  alcoholism  and substance abuse counselor (CASAC).   5.  Managed  care  programs  shall be conducted in accordance with the requirements of this section and, to the extent  practicable,  encourage the  provision  of  comprehensive  medical  services,  pursuant  to this article.  (a) The managed care  program  shall  provide  for  the  selection  of qualified  managed  care  providers  by  the  commissioner  of health to participate in the program, including comprehensive  HIV  special  needs plans  and  special  needs  managed  care  plans  in accordance with the provisions  of  section  three  hundred  sixty-five-m  of  this   title; provided, however, that the commissioner of health may contract directly with comprehensive HIV special needs plans consistent with standards set forth  in  this  section,  and assure that such providers are accessible taking into account the needs  of  persons  with  disabilities  and  the differences   between  rural,  suburban,  and  urban  settings,  and  in sufficient numbers to meet the health care needs  of  participants,  and shall  consider  the extent to which major public hospitals are included within such providers' networks.  (b) A proposal submitted by a managed care provider to participate  in the managed care program shall:  (i)  designate  the  geographic area to be served by the provider, and estimate the number of eligible participants and actual participants  in such designated area;  (ii)  include a network of health care providers in sufficient numbers and geographically accessible to service program participants;  (iii) describe the procedures for marketing in the  program  location, including  the  designation  of  other  entities  which may perform such functions under contract with the organization;  (iv) describe the  quality  assurance,  utilization  review  and  case management mechanisms to be implemented;  (v)  demonstrate the applicant's ability to meet the data analysis and reporting requirements of the program;  (vi) demonstrate financial feasibility of the program; and  (vii) include such other information as the commissioner of health may deem appropriate.  (c) The commissioner of health shall make a determination  whether  to approve, disapprove or recommend modification of the proposal.  (d)  Notwithstanding  any  inconsistent  provision  of  this title and section  one  hundred  sixty-three  of  the  state  finance   law,   the commissioner of health may contract with managed care providers approved under  paragraph  (b)  of this subdivision, without a competitive bid or request for proposal  process,  to  provide  coverage  for  participants pursuant to this title.  (e)  Notwithstanding  any  inconsistent  provision  of  this title and section one hundred forty-three of  the  economic  development  law,  no notice in the procurement opportunities newsletter shall be required for contracts  awarded  by  the commissioner of health, to qualified managed care providers pursuant to this section.  (f) The care and  services  described  in  subdivision  four  of  this section  will  be  furnished  by a managed care provider pursuant to the provisions  of  this  section  when  such  services  are  furnished   in accordance  with  an  agreement  with the department of health, and meet applicable federal law and regulations.  (g) The commissioner of health may delegate some or all of  the  tasks identified in this section to the local districts.  (h) Any delegation pursuant to paragraph (g) of this subdivision shall be  reflected  in  the  contract between a managed care provider and the commissioner of health.   6.  A  managed  care  provider  shall  not  engage  in  the  following practices:  (a)   use   deceptive  or  coercive  marketing  methods  to  encourage participants to enroll; or  (b)  distribute  marketing  materials   to   recipients   of   medical assistance,  unless  such  materials  are  approved by the department of health and, as appropriate, the office of mental health.   7. The department, the department of health or  other  agency  of  the state  as  appropriate shall provide technical assistance at the request of a social  services  district  for  the  purpose  of  development  and implementation  of  managed care programs pursuant to this section. Such assistance shall include but  need  not  be  limited  to  provision  and analysis  of data, design of managed care programs and plans, innovative payment  mechanisms,  and  ongoing  consultation.   In   addition,   the department  and  the department of health shall make available materials to social services districts for purposes of educating persons  eligible to receive medical assistance on how their care will be provided through managed care as required under paragraph (e) of subdivision five of this section.   8.  (a)  The  commissioner  of  health shall institute a comprehensive quality assurance  system  for  managed  care  providers  that  includes performance and outcome-based quality standards for managed care.  (b)  Every  managed  care  provider  shall  implement internal quality assurance systems adequate to identify,  evaluate  and  remedy  problems relating  to  access,  continuity  and quality of care, utilization, and cost of services, provided, however, that the commissioner  shall  waive the   implementation   of  internal  quality  assurance  systems,  where appropriate, for managed care providers described in  subparagraph  (ii)  of  paragraph  (b)  of  subdivision  one  of this section. Such internal quality  assurance  systems  shall  conform  to  the  internal   quality assurance  requirements  imposed  on  health  maintenance  organizations pursuant to the public health law and regulations and shall provide for:  (i)  the  designation  of  an  organizational unit or units to perform continuous monitoring of health care delivery;  (ii) the utilization of epidemiological data, chart reviews,  patterns of care, patient surveys, and spot checks;  (iii)  reports  to medical services providers assessing timeliness and quality of care;  (iv)  the  identification,  evaluation  and  remediation  of  problems relating to access, continuity and quality of care; and  (v)   a   process   for  credentialing  and  recredentialing  licensed providers.  (c) The department of health, in  consultation  with  the  responsible special  care  agencies,  shall  contract  with  one or more independent quality assurance organizations to monitor and evaluate the  quality  of care  and  services  furnished by managed care providers. To select such organization or organizations, the  department  of  health  shall  issue requests  for  proposals  (RFP),  shall  evaluate proposals submitted in response to such RFP, and pursuant to such RFP, shall award one or  more contracts  to  one  or more qualified and responsive organizations. Such quality assurance organizations shall evaluate and review the quality of care delivered by each managed care provider,  on  at  least  an  annual basis.  Such  review  and  evaluation  shall include compliance with the performance and  outcome-based  quality  standards  promulgated  by  the commissioner of health.  (d)  Every  managed  care  provider  shall  collect  and submit to the department of  health,  in  a  standardized  format  prescribed  by  the department  of  health,  patient specific medical information, including encounter data, maintained by such provider for the purposes of  quality assurance  and  oversight.  Any  information or encounter data collected pursuant to this paragraph,  however,  shall  be  kept  confidential  in accordance  with section forty-four hundred eight-a of the public health law and section 33.13 of the mental hygiene law and any other applicable state or federal law.  (e) Information collected and submitted to the department of health by the independent quality assurance organization or managed care  provider pursuant  to  this  subdivision  shall  be made available to the public, subject to any other limitations  of  federal  or  state  law  regarding disclosure thereof to third parties.  (f)  Every  managed  care  provider  shall  ensure  that  the provider maintains a network of  health  care  providers  adequate  to  meet  the comprehensive  health  needs  of  its  participants  and  to  provide an appropriate choice of providers sufficient to provide  the  services  to its participants by determining that:  (i)  there  are  a  sufficient  number  of  geographically  accessible participating providers;  (ii) there are opportunities to select from  at  least  three  primary care providers; and  (iii)  there  are  sufficient  providers  in  each  area  of specialty practice to meet the needs of the enrolled population.  (g) The commissioner of health shall  establish  standards  to  ensure that  managed  care providers have sufficient capacity to meet the needs of their enrollees, which shall  include  patient  to  provider  ratios, travel   and  distance  standards  and  appropriate  waiting  times  for appointments.    9. Managed care providers shall inform participants of such provider's grievance procedure and  utilization  review  procedures  under  section forty-four  hundred  eight-a and article forty-nine of the public health law. A managed care provider  or  local  social  services  district,  as appropriate,  shall  provide  notice to participants of their respective rights  to  a  fair  hearing  and  aid  continuing  in  accordance  with applicable  state  and federal law. Managed care providers shall provide notice of the name, address, phone number and website of the  department of  health  designated  independent  consumer assistance program and the independent  substance  use  disorder  and   mental   health   ombudsman established by section 33.27 of the mental hygiene law within notices of adverse grievances and appeals determinations.   10.  The  commissioner  of  health  shall  be  authorized to establish requirements regarding provision and reimbursement of emergency care.   10-a. For managed care providers with negotiated rates of payment  for inpatient  hospital  services  under contracts in effect on April first, two thousand eight, that  have  a  payment  rate  methodology  for  such inpatient  hospital  services  that  utilizes  rates  calculated  by the department of health pursuant to paragraph (a) or (a-2)  of  subdivision one  of  section  twenty-eight  hundred  seven-c  for patients under the medical assistance program, such  rate  shall  not  include  adjustments pursuant  to  subdivision  thirty-three  of section twenty-eight hundred seven-c of the public health law for contract periods prior  to  January first, two thousand ten.   12.  The commissioner, by regulation, shall provide that a participant may withdraw from participation in a managed care program upon a showing of good cause.   13. (a) Notwithstanding any inconsistent provisions of  this  section, participation  in a managed care program will not diminish a recipient's medical  assistance  eligibility  or  the  scope  of  available  medical services  to  which he or she is entitled. Once a program is implemented by  or  in  the  district  in  accordance  with  this  section,  medical assistance for persons who require such assistance, who are eligible for or  in receipt of such assistance in the district and who are covered by the program shall be limited to payment of the cost  of  care,  services and  supplies  covered by the managed care program, only when furnished, prescribed, ordered or approved  by  a  managed  care  provider,  mental health  special  needs  plan or comprehensive HIV special needs plan and otherwise under the  program,  together  with  the  costs  of  medically necessary  medical and remedial care, services or supplies which are not available to participants under the program, but which  would  otherwise be available to such persons under this title and the regulations of the department provided, however, that the program may contain provision for payment to be made for non-emergent care furnished in hospital emergency rooms consistent with subdivision ten of this section.  (b)  Notwithstanding  any  inconsistent  provision of law, payment for claims for services as specified in paragraph (a)  of  this  subdivision furnished  to  eligible  persons under this title, who are enrolled in a managed care program pursuant to this section and section three  hundred sixty-four-f of this title or other comprehensive health services plans, shall  not be made when such services are the contractual responsibility of a managed care provider but are provided by another medical  services provider contrary to the managed care plan.   14.  The commissioner of health is authorized and directed, subject to the approval of the director of the division of budget, to  make  grants to  social  services districts to aid in the planning and development of managed care programs.  The  total  amount  expended  pursuant  to  this  section  shall  not  exceed the amount appropriated for such purposes in any fiscal year.   15. The managed medical care demonstration program advisory council is abolished.   16.  Any  waiver  application  to the federal department of health and human services pursuant to this  article  and  any  amendments  to  such application shall be a public document.   17.  (a)  The  provisions  of  this section regarding participation of persons receiving family assistance and supplemental security income  in managed  care  programs  shall  be effective if, and as long as, federal financial participation  is  available  for  expenditures  for  services provided pursuant to this section.  (b)  The provisions of this section regarding the furnishing of health and behavioral health services through a special needs managed care plan shall be effective if, and as long as, federal  financial  participation is  available  for  expenditures  for  services  provided  by such plans pursuant to this section.   18. (a) The department of health may, where not inconsistent with  the rate  setting  authority of other state agencies and subject to approval of the director of the division of  the  budget,  develop  reimbursement methodologies and fee schedules for determining the amount of payment to be  made  to managed care providers under the managed care program. Such reimbursement methodologies and fee schedules may include provisions for payment of managed care fees and capitation arrangements.  (b) The  department  of  health  in  consultation  with  organizations representing  managed care providers shall select an independent actuary to review any such reimbursement rates. Such independent  actuary  shall review   and   make  recommendations  concerning  appropriate  actuarial assumptions relevant to the establishment of  rates  including  but  not limited to the adequacy of the rates in relation to the population to be served  adjusted  for  case  mix,  the  scope of services the plans must provide, the utilization  of  services  and  the  network  of  providers necessary to meet state standards. The independent actuary shall issue a report   no   later   than   December   thirty-first,  nineteen  hundred ninety-eight and annually thereafter. Such report shall be  provided  to the  governor,  the  temporary  president and the minority leader of the senate and the speaker and the minority  leader  of  the  assembly.  The department  of  health  shall  assess  managed  care providers under the managed care program on a per enrollee basis to cover the cost  of  such report.   * (c)  In  setting  such  reimbursement  methodologies, the department shall consider costs  borne  by  the  managed  care  program  to  ensure actuarially  sound  and  adequate  rates of payment to ensure quality of care.   * NB There are 2 par (c)'s   * (c) The department of health shall require the  independent  actuary selected  pursuant  to  paragraph  (b)  of this subdivision to provide a complete actuarial memorandum, along with all actuarial assumptions made and all other data, materials and methodologies used in the  development of  rates,  to managed care providers thirty days prior to submission of such rates to  the  centers  for  medicare  and  medicaid  services  for approval.  Managed  care  providers may request additional review of the actuarial soundness of the rate setting process and/or methodology.   * NB There are 2 par (c)'s  (d) The department of health shall annually provide to  the  temporary president  of  the  senate  and  the  speaker of the assembly the annual Medicaid managed care operating reports submitted to the department from  managed care plans that contract  with  the  state  to  manage  services provided under the Medicaid program.  (e)  Increased  rates, terms or scope of payment for behavioral health services under this title, where payment  is  made  by  a  managed  care provider  under  this  section, as a result of a rate, coverage or other change made pursuant to a law, regulation, rule  or  official  guidance, shall  be  deemed in effect on the same date that such change would have taken effect if payment  were  made  other  than  by  the  managed  care provider.  Where  payment  is  not  made  as  of the effective date, the managed care provider shall make retroactive payments to the appropriate service providers.   19.  (a)  The  commissioner  of  health,  in  consultation  with   the commissioner,  shall  promulgate  such  regulations  as are necessary to implement the provisions of this section  provided,  however,  that  the provisions of this subdivision shall not limit specific actions taken by the  department  of  health or the department in order to ensure federal financial participation.   20. Upon a determination that a participant appears to be suitable for admission to a comprehensive HIV special needs plan or a  special  needs managed  care plan, a managed care provider shall inform the participant of the availability of such plans, where available and appropriate.   21. (a) An amount equal to seven million  dollars  together  with  any matching  federal and local government funds shall be made available for rate adjustments for managed care providers whose rates were  set  under the  competitive  bidding  process.  Such  adjustment  shall  be made in accordance with this paragraph.  (i) Such amount shall be allocated by the department of  health  among the  managed  care  rating  regions based on each region's percentage of statewide Medicaid managed care enrollment as of January first, nineteen hundred ninety-seven excluding from such calculation enrollment in local social services districts that did not participate  in  the  competitive bidding process.  (ii)  From  among the funds allocated in a managed care rating region, the department of health shall adjust the existing rates paid to managed care providers for each premium group for the period from January first, nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen hundred  ninety-eight  in  a manner that raises the rates of all managed care providers in the region to the highest uniform  percentage  of  the upper  payment  limit  possible  based on the funds available; provided, however, that no managed care provider's  rate  for  any  premium  group shall  be  reduced  as  a  result of such adjustment. For the purpose of calculating appropriate rate  increases  under  this  subparagraph,  the department  of  health  shall assume that, for the entire period between January first, nineteen hundred  ninety-seven  and  March  thirty-first, nineteen hundred ninety-eight, enrollment in each premium group shall be equal  to  enrollment  in  the  premium group as of July first, nineteen hundred ninety-seven.  (b) In addition to the increases made available in  paragraph  (a)  of this  subdivision  for  the  period  beginning  January  first, nineteen hundred  ninety-seven  through  March  thirty-first,  nineteen   hundred ninety-eight,  an  additional  ten  million  dollars,  together with any matching federal and local government funds, shall be added to provide a uniform percentage increase,  based  on  July  first,  nineteen  hundred ninety-seven  enrollment  to  the  existing  rates  paid for all premium groups to all managed  care  providers  whose  rates  were  set  by  the competitive bidding process.  (c)  In addition to the increases made available in paragraphs (a) and (b) of this subdivision for the period beginning January first, nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen   hundred ninety-eight,  an  additional  amount  equal  to  three  million dollars together with any matching federal and local government funds, shall  be made  available  to  be  added to the rates of health plans operating in geographic areas where capacity is insufficient to allow  attainment  of enrollment  goals  consistent  with the federal 1115 waiver known as the Partnership  Plan.  Such  amount  shall  be  distributed  subject  to  a demonstration  to  the  commissioner's  satisfaction  that  the plan has executed a contract amendment providing for an  increase  in  enrollment proportional  to  the  size  of  the  plan  and the remaining unenrolled population in the county. In evaluating the  plan's  demonstration,  the commissioner  shall  consider the degree to which the plan has increased the number of primary or specialty care practitioners or diagnostic  and treatment centers in its network or whether the additional rate increase would  permit  the plan to generate greater enrollments while continuing to meet the financial requirements of  the  public  health  law  or  the insurance  law  whichever  is  applicable  and  regulations  promulgated pursuant thereto.   Any amount identified  in  this  paragraph  remaining  uncommitted  by December   thirty-first,   nineteen   hundred   ninety-seven   shall  be distributed  in  a  manner  consistent  with  paragraph  (b)   of   this subdivision.  (d)  A plan shall be eligible for payments pursuant to paragraphs (a), (b) and (c) of this subdivision for such  periods  as  the  plan  has  a contract  with  one or more social services districts; provided, however that the plan has a contract, or has made a good faith effort  to  enter into  a contract, in that district effective through March thirty-first, nineteen hundred ninety-eight.  (e) For the period from April  first,  nineteen  hundred  ninety-eight through  March  thirty-first,  nineteen hundred ninety-nine, the premium rates paid by the department of health to  all  managed  care  providers whose  rates  were  set  under  the competitive bidding process shall be equal to (i) the managed care provider's rate as of March  thirty-first, nineteen hundred ninety-eight increased by a uniform trend factor; plus, (ii)  four  million dollars together with any matching federal and local government funds to be added as a uniform percentage  increase  to  such provider's rate as of March thirty-first, nineteen hundred ninety-eight, based  on  enrollment  in  the premium group as of April first, nineteen hundred ninety-eight.  (f) For the period from April  first,  nineteen  hundred  ninety-eight through  March thirty-first, nineteen hundred ninety-nine, an additional amount equal to four million dollars together with any matching  federal and  local  government  funds,  shall be made available for managed care rate adjustments consistent with the criteria set forth in paragraph (c) of this subdivision. Any amount identified in this  paragraph  remaining uncommitted  by  December  thirty-first,  nineteen  hundred ninety-eight shall be added as a uniform percentage increase  to  the  rates  of  all managed  care  providers eligible for an increase under paragraph (e) of this subdivision.   22. Chemung county demonstration project. (a)  The  legislature  finds that  the particular circumstances of Chemung county warrant authorizing this demonstration project, including the rural nature  of  the  county, the  absence  of  a comprehensive medicaid managed care provider serving the area at this time, patient care needs, and  aspects  of  the  health care provider base.  (b)  within  all  or  part  of  Chemung  county  (referred  to in this subdivision as "the catchment area"), the department of health  and  the Chemung county department of social services are authorized to conduct a  Medicaid  research  and  demonstration  project  (referred  to  in  this subdivision as the "demonstration project") for the purpose  of  testing the  use  of  innovative  administrative  techniques,  new reimbursement methods,  and management of care models, so as to promote more efficient use of health resources,  a  healthier  population  and  containment  of Medicaid program costs.  (c)   As  part  of  the  demonstration  project,  the  Chemung  county department of social services is authorized to contract with  a  managed care  provider  for  the purposes of, without limitation, developing and managing a provider of care network, establishing provider payment rates and fees, paying provider claims, providing care management services  to project participants, and managing the utilization of project services.  (d)  The demonstration project shall be consistent with the provisions of this section, except:  (i) The department may waive any rules or regulations, as necessary to implement and consistent with this subdivision.  (ii) The demonstration project shall not be subject to:  (A) paragraph (b) of subdivision four of this section;  (B) subparagraphs (i), (ii), (iii) (v) and (viii) of paragraph (e)  of subdivision four of this section;  (C) paragraph (f) of subdivision four of this section;  (D) paragraph (g) of subdivision four of this section;  (E)  subdivision  five of this section; provided that in approving the demonstration project or  modifications  to  it,  the  department  shall consider the criteria in that subdivision;  (F)  sections two hundred seventy-two and two hundred seventy-three of the public health law;  (G) section three hundred sixty-five-i of this title.  (iii) Notwithstanding subdivision three of this section, participation in the project shall be mandatory for all or any specified categories of persons eligible for services under this  title  for  whom  the  Chemung county  department of social services has fiscal responsibility pursuant to section three hundred sixty-five of this title and who reside  within the   demonstration   project  catchment  area,  as  determined  by  the commissioner of health; provided, however, that eligible persons who are also beneficiaries under title XVIII of the federal social security  act and  persons  who reside in residential health care facilities shall not be eligible to participate in the project.  (e)(i) Persons who are enrolled in or apply for medical assistance  on or  before the date the demonstration project takes effect shall receive sixty days written notice prior to participating  in  the  demonstration project,  including  an explanation of the demonstration project and the participant's rights and responsibilities. Persons who apply for medical assistance thereafter shall receive such notice at the time of  applying for medical assistance.  (ii)  The  demonstration  project  shall  provide adequate services to overcome language barriers for participants.  (iii) Participants in the demonstration project whose participation in a  managed  care  program  would  not  otherwise  be   mandatory   under subdivision  three  of  this  section,  who,  at the time they enter the demonstration project, have an established  relationship  with  and  are receiving  services from one or more medical services providers that are not  included  in  the  demonstration  project's  provider  network  (an "out-of-network  provider"),  shall  be permitted to continue to receive services  from  such  providers  until  their  course  of  treatment  is complete,  or  in  the  case of a pregnant woman, while pregnant and for sixty days post-partum. Out-of-network providers that  provide  services pursuant to this subparagraph shall be subject to the utilization review  and  care  management procedures prescribed by the managed care provider and shall be reimbursed at the rate that would be paid to such providers by the medical assistance program on a fee for service basis pursuant to this title, and shall accept such reimbursement as payment in full.  (f)  The  provisions  of  this  subdivision shall not apply unless all necessary approvals under federal law and regulation have been  obtained to  receive  federal financial participation in the costs of health care services provided pursuant to this subdivision.  (g) The commissioner of health is authorized to submit  amendments  to the  state  plan  for  medical  assistance  and/or  submit  one  or more applications for waivers of the federal social security act  as  may  be necessary  to  obtain  the federal approvals necessary to implement this subdivision.  (h) The demonstration project shall terminate five years after  it  is approved by the department and all necessary approvals under federal law and  regulations  under  paragraph  (f)  of  this  subdivision have been obtained, unless terminated sooner by the Chemung county  department  of social services.   23.  (a)  As  a  means of protecting the health, safety and welfare of recipients, in addition to any other sanctions that may be imposed,  the commissioner,  in  consultation  with the commissioners of the office of mental health and the office of alcoholism and substance abuse services, where appropriate, shall appoint temporary management of a managed  care provider  upon determining that the managed care provider has repeatedly failed to meet the substantive requirements of sections 1903(m) and 1932 of the federal Social Security Act and regulations. A hearing shall  not be required prior to the appointment of temporary management.  (b)  The  commissioner  and/or  his  or  her  designees,  which may be individuals within the department or other individuals or entities  with appropriate  knowledge  and  experience,  may  be appointed as temporary management. The commissioner may appoint the superintendent of financial services and/or his or her designees  as  temporary  management  of  any managed  care  provider  which  is subject to rehabilitation pursuant to article seventy-four of the insurance law.  (c)  The  responsibilities  of  temporary  management  shall   include oversight  of  the managed care provider for the purpose of removing the causes and conditions which led to the determination requiring temporary management, the imposition of improvements  to  remedy  violations  and, where  necessary, the orderly reorganization, termination or liquidation of the managed care provider.  (d) Temporary management may  hire  and  fire  managed  care  provider personnel  and  expend  managed  care provider funds in carrying out the responsibilities imposed pursuant to this subdivision.  (e) The commissioner, in consultation  with  the  superintendent  with respect  to any managed care provider subject to rehabilitation pursuant to article seventy-four of the insurance  law,  may  make  available  to temporary  management for the benefit of a managed care provider for the maintenance of required reserves and deposits monies from such funds  as are appropriated for such purpose.  (f)   The  commissioner  is  authorized  to  establish  in  regulation provisions for the payment of fees and expenses from funds  appropriated for such purpose for non-governmental individuals and entities appointed as temporary management pursuant to this subdivision.  (g)  The  commissioner may not terminate temporary management prior to his or  her  determination  that  the  managed  care  provider  has  the capability to ensure that the sanctioned behavior will not recur.  (h)  During any period of temporary management individuals enrolled in the managed care provider being managed  may  disenroll  without  cause.  Upon  reaching  a  determination that requires temporary management of a managed care provider,  the  commissioner  shall  notify  all  recipient enrollees  of  such  provider that they may terminate enrollment without cause during the period of temporary management.  (i)  The  commissioner  may  adopt  and amend rules and regulations to effectuate the purposes and provisions of this subdivision.   24. Claims submitted to  a  managed  care  provider  for  payment  for medical  care,  services,  or  supplies  furnished  by an out-of-network medical services provider must be submitted within fifteen months of the date the medical care,  services,  or  supplies  were  furnished  to  an eligible  person  to  be  valid and enforceable against the managed care provider. This deadline for claims submission shall not apply where  the claims  submission  is  warranted to address findings or recommendations identified in a state or federal audit  except  where  such  audit  also indicates that an inappropriate provider payment was solely the fault of the out-of-network health care provider.   25.  Effective  January  first, two thousand thirteen, notwithstanding any provision of law to the contrary, managed care providers shall cover medically necessary prescription drugs  in  the  atypical  antipsychotic therapeutic  class, including non-formulary drugs, upon demonstration by the prescriber, after consulting with the managed  care  provider,  that such  drugs,  in  the prescriber's reasonable professional judgment, are medically necessary and warranted.   25-a. Effective July first, two thousand thirteen, notwithstanding any provision of law to the contrary, managed  care  providers  shall  cover medically   necessary   prescription   drugs   in  the  anti-depressant, anti-retroviral,   anti-rejection,   seizure,    epilepsy,    endocrine, hematologic and immunologic therapeutic classes, including non-formulary drugs,  upon  demonstration by the prescriber, after consulting with the managed care provider, that such drugs, in the  prescriber's  reasonable professional judgment, are medically necessary and warranted.   26.  The  commissioner  of  health  shall  develop  a  standard  prior authorization request form or forms to be utilized by all  managed  care providers  for purposes of submitting a request for a utilization review determination for coverage of  prescription  drug  benefits  under  this title.   The  managed  care  provider  shall  make  the  standard  prior authorization request form or forms available to, and shall accept it or them from, prescribing providers in paper and electronic form.   26-a. Managed care providers  shall  require  prior  authorization  of prescriptions  of opioid analgesics in excess of four prescriptions in a thirty-day period, provided, however, that this  subdivision  shall  not apply  if the patient is a recipient of hospice care, has a diagnosis of cancer or sickle cell disease, or any other condition or  diagnosis  for which  the  commissioner of health determines prior authorization is not required.   26-b. Managed care providers shall not require prior authorization for an initial or  renewal  prescription  for  buprenorphine  or  injectable naltrexone   for  detoxification  or  maintenance  treatment  of  opioid addiction  unless  the  prescription   is   for   a   non-preferred   or non-formulary  form  of  the  drug  or  as otherwise required by section 1927(k)(6) of the Social Security Act.   26-c. Managed care providers shall not require prior authorization for methadone, when  used  for  opioid  use  disorder  and  administered  or dispensed in an opioid treatment program.   ** 27.  The  commissioner  of  the  department  of health may make any necessary amendments to a contract  pursuant  to  this  section  with  a managed care provider, as defined in paragraph (b) of subdivision one of this  section,  to  allow such managed care provider to participate as a  qualified health plan in a state  health  benefit  exchange  established pursuant to the federal Patient Protection and Affordable Care Act (P.L. 111-148),   as   amended  by  the  federal  Health  Care  and  Education Reconciliation Act of 2010 (P.L. 111-152).   ** NB There are 2 sb 27's   ** 27.  (a)  The  centers  for  medicare  and  medicaid  services  has established an initiative  to  align  incentives  between  medicare  and medicaid.  The goal of the initiative is to increase access to seamless, quality  programs  that  integrate  services  for  the  dually  eligible beneficiary  as  well  as  to achieve both state and federal health care savings by improving health care delivery and  encouraging  high-quality efficient  care. In furtherance of this goal, the legislature authorizes the  commissioner  of  health  to  establish  a  fully  integrated  dual advantage (FIDA) program.  (b)   The   FIDA   program   shall  provide  targeted  populations  of medicare/medicaid dually  eligible  persons  with  comprehensive  health services  that  include  the full range of medicare and medicaid covered services,  including  but  not  limited  to  primary  and  acute   care, prescription   drugs,  behavioral  health  services,  care  coordination services,  and  long-term  supports  and  services,  as  well  as  other services,  through managed care providers, as defined in subdivision one of this section, including  managed  long  term  care  plans,  certified pursuant to section forty-four hundred three-f of the public health law.  (c)  Under  the FIDA program established pursuant to this subdivision, up  to  three  managed  long  term  care  plans  may  be  authorized  to exclusively  enroll individuals with developmental disabilities, as such term is  defined  in  section  1.03  of  the  mental  hygiene  law.  The commissioner  of health may waive any of the department's regulations as such commissioner, in consultation with the commissioner of  the  office for  people  with  developmental  disabilities, deems necessary to allow such managed long term care plans to provide or arrange for service  for individuals  with  developmental  disabilities  that  are  adequate  and appropriate to meet the needs of such individuals and that  will  ensure their  health and safety. The commissioner of the office for people with developmental disabilities may waive any of the office for  people  with developmental   disabilities'   regulations  as  such  commissioner,  in consultation with the commissioner of health, deems necessary  to  allow such managed long term care plans to provide or arrange for services for individuals  with  developmental  disabilities  that  are  adequate  and appropriate to meet the needs of such individuals and that  will  ensure their health and safety.  (d)  The  provisions  of  this  subdivision shall not apply unless all necessary approvals under federal law and regulation have been  obtained to  receive  federal financial participation in the costs of health care services provided pursuant to this subdivision.  (e) The commissioner of health is authorized to submit  amendments  to the  state  plan  for  medical  assistance  and/or  submit  one  or more applications for waivers of the federal social security act  as  may  be necessary  to  obtain  the federal approvals necessary to implement this subdivision.  (f) Notwithstanding any inconsistent provisions of  this  section  and sections  one  hundred  twelve  and one hundred sixty-three of the state finance  law,  or  section  one  hundred  forty-two  of   the   economic development  law,  or any other law to the contrary, the commissioner of health and, in the  case  of  FIDAs  authorized  exclusively  to  enroll persons  with developmental disabilities, the commissioner of health and the  commissioner  of  the  office   for   people   with   developmental disabilities,  may  contract  with  FIDAs  approved  under  this section  without  a  competitive  bid  or  request  for  proposal  process,   are authorized  to  enter  into  a contract or contracts under this section, provided, however, that:  (i)  the  department of health shall post on its website, for a period of no less than thirty days:  (A) a description of the proposed services to be provided pursuant  to the contract or contracts;  (B) the criteria for selection of a contractor or contractors;  (C)  the period of time during which a prospective contractor may seek selection,  which  shall  be  no  less  than  thirty  days  after   such information is first posted on the website; and  (D)  the  manner  by  which  a  prospective  contractor  may seek such selection, which may include submission by electronic means;  (ii) all reasonable and responsive submissions that are received  from prospective  contractors  in  a  timely fashion shall be reviewed by the commissioner of health or commissioners, as applicable; and  (iii) the commissioner or, in the case of FIDAs authorized exclusively to enroll persons with developmental disabilities, the  commissioner  of health  and the commissioner of the office for people with developmental disabilities, may select such contractor or contractors that,  in  their discretion,  have  demonstrated  the ability to effectively, efficiently and economically integrate health and long term care services, and  meet the standards for a certificate of authority under the public health law for  the  provision  of  services applicable to the type of managed long term care plan that such contractor proposes to operate.  (g) Nothing in  this  section  shall  be  construed  as  requiring  an individual  with  a developmental disability to enroll in a FIDA that is authorized  to  exclusively  enroll   individuals   with   developmental disabilities.  (h)  Nothing  in  this  section  shall  make  enrollment in a medicare managed care plan a condition of an individual's  participation  in  the FIDA  program,  or  affect  the  individual's  entitlement to payment of applicable  medicare  managed  care   or   fee-for-service   coinsurance deductibles by the individual's FIDA plan.   ** NB There are 2 sb 27's   ** 28.   To   the  extent  that  any  provision  of  this  section  is inconsistent with any provision of section forty-four hundred three-g of the public health law, such provision of this section shall not apply to an entity authorized to operate pursuant to section  forty-four  hundred three-g of the public health law.   ** NB Repealed September 30, 2023   29.  In  the  event  that  the  department  receives approval from the Centers for Medicare and Medicaid Services  to  amend  its  1115  waiver known as the Partnership Plan or receives approval for a new 1115 waiver for  the  purpose  of reinvesting savings resulting from the redesign of the medical assistance program, the commissioner is authorized to  enter into  contracts, and/or to amend the terms of contracts awarded prior to the effective date of this subdivision, for the purpose of assisting the department of health with implementing projects  authorized  under  such waiver  approval. Notwithstanding the provisions of sections one hundred twelve and one hundred sixty-three of the state finance law, or sections one hundred forty-two  and  one  hundred  forty-three  of  the  economic development  law,  or  any  contrary  provision of law, contracts may be entered or contract amendments may be made pursuant to this  subdivision without a competitive bid or request for proposal process if the term of any  such  contract  or  contract amendment does not extend beyond March thirty-first, two thousand nineteen; provided, however, in the case of a  contract entered into after the  effective  date  of  this  subdivision, that:  (a)  The  department of health shall post on its website, for a period of no less than thirty days:  (i) A description of the proposed services to be provided pursuant  to the contract or contracts;  (ii) The criteria for selection of a contractor or contractors;  (iii)  The  period  of  time during which a prospective contractor may seek selection, which shall be no  less  than  thirty  days  after  such information is first posted on the website; and  (iv)  The  manner  by  which  a  prospective  contractor may seek such selection, which may include submission by electronic means;  (b) All reasonable and responsive submissions that are  received  from prospective  contractors  in  timely  fashion  shall  be reviewed by the commissioner of health; and  (c) The  commissioner  of  health  shall  select  such  contractor  or contractors that, in his or her discretion, are best suited to serve the purposes of this section.   30.  Notwithstanding the provisions of section one hundred sixty-three of the state finance law, or sections  one  hundred  forty-two  and  one hundred  forty-three  of  the  economic development law, or any contrary provision of law, in the event that the state  receives  prior  approval and  enhanced  financial participation from the Centers for Medicaid and Medicare Services, Administration for  Children  and  Families  and  the Federal  Food  and  Nutrition  Services for reimbursement pursuant to an A-87  cost  allocation  waiver  for  enhanced  funding  for   integrated eligibility  systems,  the  state is authorized to enter into contracts, and/or to amend the terms of contracts awarded prior  to  the  effective date  of  this  subdivision,  without  a  competitive bid or request for proposal process, consistent with federal requirements, for the  purpose of   implementing  projects  authorized  under  such  waiver  amendment; provided, however, in the case of a  contract  entered  into  after  the effective date of this subdivision, that:  (a)  The  office of temporary and disability assistance and the office of general services, or another state agency, shall post on its  website and concurrently provide to the chair of the senate health committee and the chair of the assembly health committee, for a period of no less than thirty days:  (i)  A description of the proposed services to be provided pursuant to the contract or contracts;  (ii) The criteria for selection of a contractor or contractors;  (iii) The period of time during which  a  prospective  contractor  may submit  an  offer,  which  shall  be no less than thirty days after such information is first posted on the website; and  (iv) The manner by which a prospective contractor may submit an offer, which may include submission by electronic means;  (b) All responsive  and  reasonable  offers  that  are  received  from prospective  contractors  in  timely  fashion  shall  be reviewed by the commissioner of temporary  and  disability  assistance  or  other  state agency; and  (c)  The  commissioners  of  the  department  of health, the office of temporary and disability assistance  and  the  office  of  children  and family services, working in cooperation with the state chief information officer and the office of general services, shall award such contract to the contractor or contractors offer that provides the best value as such term  is defined in section one hundred sixty-three of the state finance law, to the state. At notification  the  commissioner  of  health  shall  provide  this  information  to  the  chair of the senate standing health committee and the chair of the assembly health committee.  (d)   All  decisions  made  and  approaches  taken  pursuant  to  this subdivision shall be documented in a procurement record  as  defined  in section one hundred sixty-three of the state finance law.  (e)  In accordance with all federal advance planning document guidance and  within  the  parameters  established  by  the  enhanced   financial participation  from  the  centers  for  Medicaid  and Medicare services, administration for children  and  families  and  the  federal  food  and nutrition  services  for reimbursement to an A-87 cost allocation waiver for enhanced funding for integrated eligibility systems,  Phase  1  will include  foundational  allowable  shared  service components required to successfully meet the requirements  for  non-MAGI  Medicaid  such  as  a common  client  portal,  document  management,  rules  engines, workflow management tools, case management, notices and training.  (f) The contract will require training to be provided at  no  cost  to the social services districts.  (g)  The  contract  shall  require  the  completion  of shared service components by the timelines necessary to receive the enhanced  financial participation  from  the  centers  for  Medicaid  and Medicare services, administration for children  and  families  and  the  federal  food  and nutrition services for reimbursement to an A-87 cost allocation waiver.  (h)  The  commissioner  shall  provide, within thirty days of award of such contract or contracts, the chair of the senate  standing  committee on  health  and the chair of the assembly health committee with a report outlining the procurement and awards.   31. (a) The commissioner shall require managed  care  providers  under this  section,  managed  long-term  care  plans under section forty-four hundred three-f the public health law and  other  appropriate  long-term service  programs  to  adopt expedited procedures for approving personal care services for a medical assistance recipient who requires  immediate personal care or consumer directed personal assistance services pursuant to   paragraph   (e)   of  subdivision  two  of  section  three  hundred sixty-five-a of this title or section three hundred sixty-five-f of this title, respectively, or other long-term care, and provide such  care  or services as appropriate, pending approval by such provider or program.   32.  (a) The commissioner, or for the purposes of subparagraph (iv) of paragraph (c) of this subdivision, the  Medicaid  inspector  general  in consultation with the commissioner, may, in his or her discretion, apply penalties  to  managed  care  organizations  subject to this section and article forty-four of the public health law, including managed long term care plans, for untimely or inaccurate  submission  of  encounter  data; provided  however,  no  penalty  shall  be  assessed if the managed care organization submits, in good faith, timely  and  accurate  data  and  a material  amount  of  such  data  is  not  successfully  received by the department as a result of department system failures or technical issues that are beyond the control of the managed care organization.  (b) The commissioner, or for the  purposes  of  subparagraph  (iv)  of paragraph  (c)  of  this  subdivision, the Medicaid inspector general in consultation with the commissioner, shall consider  the  following  when determining   whether  to  assess  a  penalty  against  a  managed  care organization and the amount of such penalty:  (i) the degree  to  which  the  managed  care  organization  submitted inaccurate data at a category of service level and the frequency of such inaccurate data submissions by the managed care organization;  (ii)  the  degree  to  which  the  managed care organization submitted untimely data or no  data  and  the  frequency  of  such  untimely  data submissions or failures to submit by the managed care organization; and  (iii)  the  timeliness  of  the managed care organization in curing or correcting inaccurate or untimely data.   For  purposes  of  this  section,  "encounter  data"  shall  mean  all encounter records or adjustments to previously submitted  records  which the  managed  care organization has received and processed from provider encounter or claim records of all contracted  services  rendered  to  an enrollee  of  the  managed  care  organization  in  the  current  or any preceding month. Any penalty assessed under this  subdivision  shall  be calculated  as a percentage of the Medicaid capitated premium calculated by the department and paid to the managed care organization.  (c) (i) Penalties assessed pursuant  to  this  subdivision  against  a managed  care  organization  other  than  a  managed long term care plan certified pursuant to section forty-four hundred three-f of  the  public health law shall be as follows:  (A) for encounter data submitted or resubmitted past the deadlines set forth  in  the  model contract, the Medicaid capitated premiums shall be reduced by one-third percent; and  (B) for incomplete  or  inaccurate  encounter  data,  evaluated  at  a category of service level, that fails to conform to department developed benchmarks   for  completeness  and  accuracy,  the  Medicaid  capitated premiums shall be reduced by one and one-third percent; and  (C) for submitted data that results in a rejection rate in  excess  of ten  percent  of  department  developed  volume benchmarks, the Medicaid capitated premiums shall be reduced by one-third percent.  (ii) Penalties  assessed  pursuant  to  this  subdivisions  against  a managed  long  term  care  plan certified pursuant to section forty-four hundred three-f of the public health law shall be as follows:  (A) for encounter data submitted or resubmitted past the deadlines set forth in the model contract, the Medicaid capitated  premiums  shall  be reduced by one-quarter percent;  (B)  for  incomplete  or  inaccurate  encounter  data,  evaluated at a category of service level, that fails to conform to department developed benchmarks  for  completeness  and  accuracy,  the  Medicaid   capitated premiums shall be reduced by one percent; and  (C)  for  submitted data that results in a rejection rate in excess of ten percent of department  developed  volume  benchmarks,  the  Medicaid capitated premiums shall be reduced by one-quarter percent.  (iii)  For  incomplete or inaccurate encounter data, identified in the course of an audit, investigation or review by  the  Medicaid  inspector general,  the  Medicaid  capitated  premiums  shall  be  reduced  by  an additional one percent.  (d) (i) Penalties under this subdivision may be applied to any and all circumstances described in paragraph (b) of this subdivision  until  the managed  care organization complies with the requirements for submission of encounter data.  (ii) No penalties for late, incomplete or  inaccurate  encounter  data shall  be  assessed  against  managed  care organizations in addition to those provided for in this subdivision, provided, however, that  nothing in  this  paragraph shall prohibit the imposition of penalties, in cases of fraud, waste or abuse, otherwise authorized by law.   33. For services under this title provided by residential health  care facilities  under  article  twenty-eight  of  the public health law, the commissioner shall direct  managed  care  organizations  licensed  under article  forty-four of the public health law, article forty-three of the insurance law, and this section, to continue to reimburse at a benchmark rate which is to be the  fee-for-service  rate  calculated  pursuant  to section  twenty-eight  hundred  eight  of  the  public  health  law. The benchmark fee-for-service rate shall continue to be paid by such managed  care organizations for all services provided by  residential  healthcare facilities  from  the  effective date of this subdivision at least until December  thirty-first,  two  thousand  twenty.  The  commissioner   may require,  as  a  condition  of  continuing  to  require  payment at such benchmark rate that aggregate managed care expenditures  to  residential health   care   facilities  meet  the  alternative  payment  methodology requirements set forth in attachment I of the  New  York  State  section 1115  medicaid  redesign  team  waiver  as  approved  by the centers for medicare and medicaid services. The commissioner of health  shall  waive such  requirements if a sufficient number of providers, as determined by the commissioner, suffer a financial hardship as a consequence  of  such alternative  payment  methodology  requirements,  or if the commissioner determines that such  alternative  payment  methodologies  significantly threaten   individuals'  access  to  residential  health  care  facility services;  such  waiver  may  be  applied  on  a  provider-specific   or industry-wide  basis.  Further,  such requirements may be waived, as the commissioner determines necessary,  to  comply  with  federal  rules  or regulations governing these payment methodologies.   34.  For  purposes of recovery of overpayments pursuant to subdivision thirty-five of this section, any payment made pursuant  to  the  state's managed  care program, including payments made by managed long term care plans, shall be deemed a  payment  by  the  state's  medical  assistance program,  provided that this subdivision shall not permit the imposition of a lien or recovery against property of an  individual  or  estate  on account  of  medical  assistance payments where recovery is made against the individual's managed care provider or provider of medical assistance program items or services. Provided however nothing in this  subdivision shall  be construed to limit recoveries under other relevant sections of law.   35. Recovery of overpayments from network  providers.  (a)  Where  the Medicaid inspector general during the course of an audit, investigation, or review, or the deputy attorney general for the Medicaid fraud control unit  during  the course of an investigation or prosecution for Medicaid fraud, identifies medical assistance overpayments made by a managed care provider or  managed  long  term  care  plan  to  its  subcontractor  or subcontractors  or provider or providers, the state shall have the right to recover the overpayment from  the  subcontractor  or  subcontractors, provider or providers, or the managed care provider or managed long term care  plan; provided, however, in no event shall the state duplicate the recovery of an overpayment from a provider or subcontractor.  (b) Where the state is unsuccessful in recovering an overpayment  from the  subcontractor  or  subcontractors  or  provider  or  providers, the Medicaid inspector general may require  the  managed  care  provider  or managed   long   term  care  plan  to  recover  the  medical  assistance overpayment identified in paragraph (a) of this subdivision on behalf of the state. The managed care provider or  managed  long  term  care  plan shall  remit  to the state the full amount of the identified overpayment no later than six months after receiving notice of the overpayment  from the state.   36.  Medicaid  Program  Integrity  Reviews.  (a)  For purposes of this subdivision, managed care provider shall also include managed long  term care plans.  (b)  The  Medicaid inspector general shall conduct periodic reviews of the contractual performance of each managed care provider as it  relates to  the  managed care provider's program integrity obligations under its contract  with  the  department.  The  Medicaid  inspector  general,  in consultation with the commissioner, shall publish on its website, a list of  those  contractual  obligations  pursuant  to which the managed care  provider's program integrity performance shall be  evaluated,  including benchmarks, prior to commencing any review. A Medicaid program integrity review   of   a   managed  care  provider  conducted  pursuant  to  this subdivision,  may  be completed no more than annually. Reviews performed pursuant to this subdivision shall include a review of  compliance  with contractual  standards  which  prevent  fraud,  waste,  or  abuse.  Such standards may  include  but  are  not  limited  to  excluded  providers, restricted   recipient   program,   reporting   obligations,  compliance programs, and suspension of payments. However, if the Medicaid inspector general  determines  that  a  subsequent  review,   pursuant   to   this subdivision, is necessary, a second review may occur within one year.  (c)  If,  as  a  result  of  his or her review, the Medicaid inspector general determines that a managed  care  provider  is  not  meeting  its program  integrity  obligations,  the  Medicaid  inspector  general  may recover from the managed care provider up to two percent of the Medicaid premiums paid to the managed care provider for the period under  review. Any premium recovery under this subdivision shall be a percentage of the administrative  component  of  the  Medicaid  premium  calculated by the department and may be recovered by the department in the same manner  it recovers overpayments.  (d)  The  managed  care  provider shall be entitled to receive a draft audit report and final  audit  report  containing  the  results  of  the Medicaid  inspector  general's review. If the Medicaid inspector general determines to recover a  percentage  of  the  premium  as  described  in paragraph  (c)  of  this subdivision, the managed care provider shall be entitled to notice and an opportunity to be  heard  in  accordance  with section twenty-two of this chapter.   37.  Managed care providers shall report to the department all sources and amounts of income, payments, and financial benefits related  to  the provision  of  pharmacy  benefits,  including,  but  not limited to, any pricing discounts, rebates of any kind, inflationary payments,  credits, clawbacks,  fees, grants, chargebacks, reimbursements, or other benefits whether such  income,  payments,  or  financial  benefits  are  received directly  by the managed care provider or passed through from a pharmacy benefit manager or other  entity.  Managed  care  providers  shall  also report  to the department the amounts of any administrative fees paid to cover the cost of providing pharmacy benefit  management  services.  The reporting  required  in  this  subdivision  shall be supplemental to and included with other existing reporting requirements, including  but  not limited to any quarterly reporting requirements.   ** 38.  (a) When a patient's health care provider prescribes an opioid dependence agent or opioid antagonist  that  is  not  on  the  statewide formulary  of  opioid  dependence  agents  and  opioid  antagonists, the prescriber shall consult with the managed care plan to confirm  that  in his  or  her  reasonable  professional  judgment, the patient's clinical condition  is  consistent  with  the  criteria  for  approval   of   the non-preferred or non-formulary drug. Such criteria shall include:  (i) the preferred drug has been tried by the patient and has failed to produce the desired health outcomes;  (ii)  the  patient  has  tried  the preferred drug and has experienced unacceptable side effects;  (iii) the patient has been stabilized  on  a  non-preferred  drug  and transition  to  the  preferred  or  formulary  drug  would  be medically contraindicated; or  (iv) other clinical indications identified by the  committee  for  the patient's   use   of   the   non-preferred  drug,  which  shall  include consideration of the medical needs  of  special  populations,  including children,   elderly,   chronically   ill,  persons  with  mental  health  conditions, persons affected by HIV/AIDS and  pregnant  persons  with  a substance use disorder.  (b)  The  managed care plan shall have a process for a patient, or the patient's prescribing health care provider, to request a  review  for  a prescription  drug  that  is  not  on  the statewide formulary of opioid dependence agents and opioid  antagonists,  consistent  with  42  C.F.R. 438.210(d), or any successor regulation.  (c)  A  managed care plan's failure to comply with the requirements of this subdivision shall be subject to a  one  thousand  dollar  fine  per violation.   ** NB There are 2 sb 38's   ** 38. Penalties for the submission of misstated cost reports. (a) For purposes  of  this subdivision, managed care provider shall also include managed long-term care plans.  (b) The Medicaid inspector general may, in his or her  discretion  and in  consultation  with  the  commissioner, impose a penalty on a managed care provider whose filed cost report contained a misstatement  of  fact including:  (i) unsubstantiated or improper costs;  (ii) number of member months;  (iii) number of events.   For  purposes  of  this paragraph, number of events shall include, but not be limited to understated births or deliveries.  (c) (i) For misstatements found in subparagraph (i) of  paragraph  (b) of  this  subdivision,  the  penalty shall be equal to the amount of the misstatement multiplied by two.  (ii) For misstatements found in subparagraph (ii) of paragraph (b)  of this  subdivision,  the  penalty  shall  be  the  amount  of the premium capitation paid by the department for the region per member month.  (iii) For misstatements found in subparagraph (iii) of  paragraph  (b) of this subdivision, the penalty shall be the amount of the supplemental capitation paid by the department for the region per member event.  (d) Any penalty imposed under this subdivision may be recovered by the department in any manner authorized by law.  (e)  The  managed  care  provider  against  whom  a penalty is imposed pursuant to  this  subdivision  shall  be  entitled  to  notice  and  an opportunity  to  be  heard in accordance with section twenty-two of this chapter.   ** NB There are 2 sb 38's   39. Medicaid fraud, waste and abuse prevention. (a)  For  purposes  of this  subdivision,  managed  care  provider  shall  also include managed long-term care plans.  (b) Managed care providers shall  adopt  and  implement  policies  and procedures  designed  to detect and prevent fraud, waste and abuse. This shall include the adoption and implementation of a compliance program as required by section three hundred sixty-three-d of this  title  and  the terms  of  the contract between the managed care provider and the state, and for managed care  providers  with  an  enrolled  population  of  one thousand  or  more  persons  in  the  aggregate  in  any given year, the establishment of a special investigation unit which  will  have  primary responsibility for implementing the managed care provider's policies and procedures  to  detect and prevent fraud, waste and abuse, as it relates to the managed care provider's participation in the  medical  assistance program.  (c)  The  managed  care provider shall coordinate its fraud, waste and abuse prevention activities with the Medicaid inspector general and  the department  of  health.  The Medicaid inspector general, in consultation with the department of health, may promulgate  regulations  establishing  standards  and  requirements  for the operation of managed care provider fraud, waste and abuse prevention activities, including requirements for special  investigation  units.  The  provisions  of   this   subdivision notwithstanding, the managed care provider shall continue to comply with all  the  requirements  of  section  forty-four  hundred fourteen of the public health law.   * NB Repealed March 31, 2026 (per ch. 165/1991)   * NB Repealed March 31, 2026 (per ch. 710/1988)