NY Soc Serv L § 365-F (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 365-F - Consumer Directed Personal Assistance Program.

§ 365-f. Consumer directed personal assistance program. 1. Purpose and intent. The consumer directed personal assistance program is intended to permit  chronically ill and/or physically disabled individuals receiving home  care  services  under  the  medical  assistance  program   greater flexibility  and  freedom  of  choice  in  obtaining  such services. The department shall regularly monitor district participation in the program by  reviewing  the  implementation  plans  submitted  pursuant  to  this section.  The  department  shall  provide  guidance  to the districts to improve compliance with implementation  plans  and  promote  consistency among   counties   regarding   approved  service  levels  based  on  the assessments required by this section. In addition, the department  shall provide  technical  assistance  and  such  other  assistance  as  may be necessary to assist such districts in assuring access to the program for eligible individuals.   2. Eligibility.  All eligible individuals receiving  home  care  shall have  the  opportunity to apply for participation in the program no less than  annually.  Each   social   services   district   shall   file   an implementation  plan  with the commissioner of the department of health, which shall be updated annually. Such  updates  shall  be  submitted  no later than November thirtieth of each year. Beginning on June thirtieth, two  thousand  nine,  the plans and updates submitted by districts shall require the approval  of  the  department.  Implementation  plans  shall include  district enrollment targets, describe methods for the provision of  notice  and  assistance  to  interested  individuals  eligible   for enrollment  in  the program, and shall contain such other information as shall be required by  the  department.  An  "eligible  individual",  for purposes of this section is a person who:  (a)  is  eligible  for  long  term  care  and  services  provided by a certified home health agency, long term home health care program or AIDS home care program authorized  pursuant  to  article  thirty-six  of  the public  health  law,  or is eligible for personal care services provided pursuant to this article, and who with the provision of such services is capable of safely remaining in the  community  in  accordance  with  the standards  set forth in Olmstead v. LC by Zimring, 527 US 581 (1999) and consider whether an individual is capable of  safely  remaining  in  the community;  (b) is eligible for medical assistance;  (c)  has  been determined by the social services district, pursuant to an assessment of the person's appropriateness for the program, conducted with an appropriate long term home health care program, a certified home health agency, or an AIDS home care program or pursuant to the  personal care  program,  as  being  in need of home care services or private duty nursing and  as  needing  at  least  limited  assistance  with  physical maneuvering  with  more  than  two  activities  of  daily living, or for persons with a dementia or Alzheimer's diagnosis, as  needing  at  least supervision  with  more than one activity of daily living, provided that the provisions related to activities of daily living in  this  paragraph shall  only  apply  to  persons  who  initially seek eligibility for the program on or after October first, two thousand twenty, and who is  able and  willing  or  has  a  designated  representative,  including a legal guardian able and willing to make  informed  choices,  or  a  designated relative  or  other  adult  who  is able and willing to assist in making informed choices, as to the type and quality of services, including  but not   limited   to   such  services  as  nursing  care,  personal  care, transportation and respite services; and  (d)  meets  such  other  criteria,  as  may  be  established  by   the commissioner,   which   are   necessary  to  effectively  implement  the objectives of this section.    3. Division of responsibilities. Eligible  individuals  who  elect  to participate  in the program assume the responsibility for services under such program as mutually  agreed  to  by  the  eligible  individual  and provider   and  as  documented  in  the  eligible  individual's  record, including,  but not limited to, recruiting, hiring and supervising their personal  assistants.  For  the  purposes  of  this  section,   personal assistant  shall  mean  an  adult  who has obtained an individual unique identifier from the  state  by  or  before  a  date  determined  by  the commissioner  of  health  in  consultation  with  the Medicaid inspector general, and provides  services  under  this  section  to  the  eligible individual  under the eligible individual's instruction, supervision and direction or under the instruction, supervision  and  direction  of  the eligible  individual's designated representative, provided that a person legally responsible for an eligible individual's care  and  support,  an eligible individual's spouse or designated representative may not be the personal  assistant  for  the  eligible  individual; however, a personal assistant  may  include  any  other  adult  relative  of  the   eligible individual,  provided,  however,  that  the  program determines that the services provided by such relative are consistent with  an  individual's plan  of  care  and  that  the aggregate cost for such services does not exceed the  aggregate  costs  for  equivalent  services  provided  by  a non-relative  personal  assistant. Any personal information submitted to obtain such  unique  identifier  shall  be  maintained  as  confidential pursuant  to  article  six-A of the public officers law ("New York state privacy  protection  law").  Such  individuals  shall  be  assisted   as appropriate with service coverage, supervision, advocacy and management. Providers shall not be liable for fulfillment of responsibilities agreed to  be undertaken by the eligible individual. This subdivision, however, shall not diminish the participating provider's liability for failure to exercise reasonable care in properly carrying out  its  responsibilities under  this  program,  which  shall include monitoring such individual's continuing ability to fulfill those responsibilities documented  in  his or her records. Failure of the individual to carry out his or her agreed to  responsibilities  may be considered in determining such individual's continued appropriateness for the program.   4. Participating providers. All agencies or individuals who  meet  the qualifications to provide home health, personal care or nursing services and  who  elect  to  provide  such services to persons receiving medical assistance may participate in the program.  Any  agency  or  individuals providing  services under a patient managed home care program authorized under the former section thirty-six hundred  twenty-two  of  the  public health  law  or  the  former sections three hundred sixty-five-f of this chapter may continue to provide such services under this section.   4-a. Fiscal intermediary  services.  (a)  For  the  purposes  of  this section:  (i)  "Fiscal  intermediary"  means  an  entity  that  provides  fiscal intermediary services and has a contract  for  providing  such  services with  the  department  of health and is selected through the procurement process  described  in  paragraph  (b)  of  this  subdivision.  Eligible applicants   for  contracts  shall  be  entities  that  are  capable  of appropriately providing fiscal  intermediary  services,  performing  the responsibilities  of  a  fiscal  intermediary,  and  complying with this section, including but not limited to entities that:  (A) are a service center for  independent  living  under  section  one thousand one hundred twenty-one of the education law; or  (B)  have  been  established as fiscal intermediaries prior to January first, two thousand twelve and have  been  continuously  providing  such services for eligible individuals under this section.  (ii)   Fiscal   intermediary  services  shall  include  the  following services, performed on behalf of the consumer to facilitate his  or  her role as the employer:  (A)  wage  and  benefit  processing  for  consumer  directed  personal assistants;  (B) processing all income tax and other required wage withholdings;  (C) complying with workers' compensation, disability and  unemployment requirements;  (D)  maintaining personnel records for each consumer directed personal assistant, including time records and  other  documentation  needed  for wages  and  benefit  processing  and a copy of the medical documentation required pursuant to regulations established by the commissioner;  (E) ensuring that the health status of each consumer directed personal assistant is assessed prior to service delivery pursuant to  regulations issued by the commissioner;  (F) maintaining records of service authorizations or reauthorizations;  (G)  monitoring  the  consumer's  or,  if  applicable,  the designated representative's  continuing   ability   to   fulfill   the   consumer's responsibilities   under   the   program   and  promptly  notifying  the authorizing entity of any circumstance that may  affect  the  consumer's or,  if  applicable,  the designated representative's ability to fulfill such responsibilities;  (H)  complying  with  regulations  established  by  the   commissioner specifying  the  responsibilities  of  fiscal  intermediaries  providing services under this title;  (I) entering into a department approved  memorandum  of  understanding with  the  consumer  that  describes the parties' responsibilities under this program; and  (J) other related responsibilities which may include, as determined by the  commissioner,  assisting  consumers  to  perform   the   consumers' responsibilities  under  this  section  and  department regulations in a manner that does not infringe upon the consumer's  responsibilities  and self-direction.  (iii)  Fiscal  intermediaries  are  not  responsible  for,  and fiscal intermediary  services   shall   not   include,   fulfillment   of   the responsibilities  of  the  consumer  or,  if  applicable, the consumer's designated representative as established by the commissioner.  A  fiscal intermediary's   responsibilities   shall  not  include,  and  a  fiscal intermediary shall not engage in: managing the plan  of  care  including recruiting  and  hiring  a sufficient number of individuals who meet the definition of consumer directed personal  assistant,  as  such  term  is defined  by  the  commissioner,  to provide authorized services that are included on the consumer's  plan  of  care;  training,  supervising  and scheduling  each  consumer  directed personal assistant; terminating the consumer directed personal assistant's employment; or assuring that each consumer directed personal assistant competently and safely performs the personal care services, home health aide services  and  skilled  nursing tasks  that  are  included  on  the  consumer's  plan  of care. A fiscal intermediary shall exercise reasonable care in properly carrying out its responsibilities under the program.  (b) Notwithstanding any inconsistent provision of section one  hundred sixty-three  of  the state finance law, or section one hundred forty-two of the economic  development  law  the  commissioner  shall  enter  into contracts  under  this subdivision with eligible contractors that submit an offer for a contract, provided, however, that:  (i) the department shall post on its website:  (A) a description of the proposed services to be provided pursuant  to contracts in accordance with this subdivision;  (B)  that  the  selection  of  contractors  shall be based on criteria reasonably  related  to  the  contractors'  ability  to  provide  fiscal intermediary   services   including  but  not  limited  to:  ability  to appropriately serve individuals participating in the program, geographic distribution  that  would  ensure access in rural and underserved areas, demonstrated  cultural  and  language  competencies  specific   to   the population of consumers and those of the available workforce, ability to provide  timely consumer assistance, experience serving individuals with disabilities,  the  availability   of   consumer   peer   support,   and demonstrated  compliance  with all applicable federal and state laws and regulations, including but not limited to those relating  to  wages  and labor;  (C)  the  manner  by  which  prospective  contractors  may  seek  such selection, which may include submission by electronic means;  (ii) all reasonable and  responsive  offers  that  are  received  from prospective  contractors  in  timely  fashion  shall  be reviewed by the commissioner;  (iii) the commissioner shall award such contracts to  the  contractors that  best  meet the criteria for selection and are best suited to serve the purposes of this section and the needs of consumers;  (iv) all entities providing fiscal intermediary services on or  before April first, two thousand nineteen, shall submit an offer for a contract under  this  section  within sixty days after the commissioner publishes the initial offer on the department's website. Such  entities  shall  be deemed  authorized to provide such services unless: (A) the entity fails to submit an offer for a contract under this section  within  the  sixty days;  or  (B)  the  entity's offer for a contract under this section is denied;  (v) all decisions made and approaches taken pursuant to this paragraph shall be documented in a procurement record as defined  in  section  one hundred sixty-three of the state finance law; and  (vi)  the  commissioner  is  authorized to either reoffer contracts or utilize the previous offer,  to  ensure  that  all  provisions  of  this section are met.  (b-1)  Following the initial selection of contractors pursuant to this subdivision the commissioner is instructed  to  survey  for  information relating  to  the additional selection criteria under this paragraph and paragraph (b-2) of this subdivision, in writing in a  manner  determined by  the  commissioner,  from  all  applicants that were qualified by the commissioner as meeting minimum requirements of the procurement  process described in paragraph (b) of this subdivision including those that were not awarded contracts under that process:  (i)  whether the applicant is formed as a charitable corporation under article two of the not-for-profit corporation law  or  authorized  as  a foreign   corporation  under  article  thirteen  of  the  not-for-profit corporation law;  (ii) was the applicant performing administrative services as a  fiscal intermediary  prior  to  January  first,  two thousand twelve and has it continuously provided such services for eligible individuals pursuant to this section since that date;  (iii) the address the applicant listed as its primary mailing  address on  its  most  recently  filed state corporate tax return or its Federal Return of Organization Exempt From Income Tax form (form 990);  (iv) whether the applicant is currently authorized,  funded,  approved or  certified  to  deliver state plan or home and community-based waiver supports and services to individuals with intellectual and developmental disabilities by the office for people with developmental disabilities;  (v)  whether  the   applicant   has   historically   provided   fiscal intermediary  administrative  services  to  racial  and  ethnic minority residents or new Americans, as defined in section ninety-four-b  of  the executive  law,  in  such  consumers'  primary language, as evidenced by information  and  materials  provided  to  consumers  in  the consumers' primary language or languages; and  (vi) whether the applicant is verified as a  minority  or  woman-owned business  enterprise  pursuant  to section three hundred fourteen of the executive law.  (b-2) The commissioner shall give applicants thirty days to respond to the survey. The failure of any applicants to respond to the  survey  and provide  the  information  sought  within  such  thirty-day period shall disqualify such applicants from consideration of any additional  awards. Following   receipt   of  the  survey  responses  from  applicants,  the commissioner shall make awards to qualified applicants  that  previously submitted  applications, in addition to any awards already announced, as may be necessary to ensure the commissioner has made awards as follows:  (i) the commissioner shall  make  awards  to  one  or  two  additional applicants, to the extent that such applications were received, that are located  in  each  county  with  a  population  of more than two hundred thousand but less than five hundred thousand as evidenced by the primary mailing address from the information surveyed under  subparagraph  (iii) of paragraph (b-1) of this subdivision.  (ii)  the  commissioner  shall  make  awards  to one or two additional applicants, to the extent that such applications were received, that are located in each county with a population of  five  hundred  thousand  or more  as  evidenced  by the primary mailing address from the information surveyed  under  subparagraph  (iii)  of   paragraph   (b-1)   of   this subdivision.  (iii)  to  provide geographic distribution that would ensure access in different regions of the state the commissioner shall make awards to  at least  two  additional  applicants, to the extent that such applications were received,  that  are  currently  authorized,  funded,  approved  or certified  to  deliver  state  plan  or  home and community-based waiver supports and services to individuals with intellectual and developmental disabilities by the office for people  with  developmental  disabilities and meet the following criteria:  (A)  are organized as a not-for-profit corporation pursuant to article two of the not-for-profit corporation law or  authorized  as  a  foreign corporation  under  article  thirteen  of the not-for-profit corporation law; or  (B)  have  been   performing   administrative   services   as   fiscal intermediaries prior to January first, two thousand twelve and have been continuously  providing  such services for eligible individuals pursuant to this section since that date.  (iv) to provide geographic distribution that would  ensure  access  in different  regions of the state the commissioner shall make awards to at least two additional applicants, to the extent  that  such  applications were   received,  that  serve  racial  and  ethnic  minority  residents, religious minority residents,  or  new  Americans  in  those  consumers' primary  language, as evidenced by information and materials provided to consumers in the consumers' primary language or languages and  meet  the following criteria:  (A)  are  organized  as  a  not-for-profit corporation pursuant to the not-for-profit corporation law or authorized as  a  foreign  corporation under article thirteen of the not-for-profit corporation law; or  (B)   have   been   performing   administrative   services  as  fiscal intermediaries prior to January first, two thousand twelve and have been  continuously providing such services for eligible  individuals  pursuant to this section since that date.  (v)  to  provide  geographic  distribution that would ensure access in different regions of the state the commissioner shall make awards to  at least  two  additional  applicants, to the extent that such applications were received, that have been verified  as  a  minority  or  woman-owned business  enterprise  pursuant  to section three hundred fourteen of the executive law.  (vi)  Notwithstanding  the  requirements  of   this   paragraph,   the commissioner  may  only  make  awards to the extent that applicants that meet the prescribed criteria, as evidenced by the results of the  survey required under paragraph (b-1) of this subdivision, submitted qualifying applications  and  the commissioner shall not be required to make awards where no applicant meets the prescribed criteria.  (b-3) In awarding any new contracts pursuant  to  paragraph  (b-2)  of this subdivision, the commissioner shall not rescore the offers based on the  results  of  the  survey  required  under  paragraph  (b-1) of this subdivision, but shall award such contracts to the next highest  scoring applicant  or applicants that meet the criteria under paragraph (b-2) of this subdivision.  (c) (i) The commissioner shall require a fiscal intermediary to report annually on  the  direct  care  and  administrative  costs  of  personal assistance  services  as  accounted  for by the fiscal intermediary. The department shall specify the format of such reports, determine the  type and amount of information to be submitted, and require the submission of supporting  documentation,  provided, however, that the department shall provide no less than ninety calendar days' notice  before  such  reports are due.  (ii)  If the department determines that the cost report submitted by a provider is inaccurate or incomplete, the department  shall  notify  the provider  in  writing  and  advise  the  provider  of  the correction or additional information that the provider must submit. The provider  must submit  the  corrected  or additional information within thirty calendar days from the date the provider receives the notice.  (iii) The department shall  grant  a  provider  an  additional  thirty calendar  days  to  submit  the  original,  corrected or additional cost report when the provider, prior to the date the report is due, submits a written request to the department for an extension  and  establishes  to the department's satisfaction that the provider cannot submit the report by the date due for reasons beyond the provider's control.  (iv) All reports shall be certified by the owner, administrator, chief executive  officer,  or public official responsible for the operation of the provider. The cost report form shall include a  certification  form, which shall specify who must certify the report.   4-b. Actions involving the authorization of a fiscal intermediary.  (a)  The  department  may  terminate  a fiscal intermediary's contract under this section or suspend or limit the fiscal intermediary's  rights and  privileges  under  the contract upon thirty day's written notice to the fiscal intermediary, if  the  commissioner  finds  that  the  fiscal intermediary has failed to comply with the provisions of this section or regulations promulgated hereunder. The written notice shall include:  (i)  A  description of the conduct and the issues related thereto that have been identified as failure of compliance; and  (ii) the time frame of the conduct that fails compliance.  (b) Notwithstanding the foregoing, upon determining  that  the  public health  or  safety  would  be  imminently  endangered  by  the continued operation or actions of the fiscal intermediary,  the  commissioner  may terminate  the  fiscal  intermediary's  contract or suspend or limit the  fiscal  intermediary's  rights  and  privileges   under   the   contract immediately upon written notice.  (c)  All  orders  or  determinations  under  this subdivision shall be subject to review as provided in  article  seventy-eight  of  the  civil practice law and rules.   4-c.  The commissioner shall convene and chair a stakeholder workgroup pertaining to fiscal intermediary services and the needs  of  consumers. The workgroup shall consist of, at a minimum, representatives of service centers   for  independent  living;  statewide  associations  of  fiscal intermediaries; representatives of managed care entities  under  article forty-four  of the public health law and local social service districts; consumers; and representatives of advocacy groups representing consumers of services under this section. The workgroup shall  be  established  no later  than  May  fifteenth,  two thousand nineteen. The workgroup shall identify and develop best practices pertaining to the delivery of fiscal intermediary services; inform the criteria for use by the department for the selection of entities under  subdivision  four-a  of  this  section; identify  whether  services  differ for certain consumers and under what circumstances; inform criteria in relation to the development of quality reporting  requirements;  and  work  with  the  department  to   develop transition  plans  for  consumers that may need to transition to another fiscal intermediary.   4-d. Fiscal intermediaries  ceasing  operation.  (a)  Where  a  fiscal intermediary is ceasing operation or will no longer serve the consumer's area, the fiscal intermediary shall:  (i)  deliver written notice forty-five calendar days in advance to the affected consumers, consumer representatives, personal  assistants,  the department,  and  any  local  social  services districts or managed care plans with which the fiscal intermediary contracts. Within five business days of receipt of the notice, the local  social  services  district  or managed  care plan shall acknowledge the notice and provide the affected consumers with a list of other fiscal intermediaries  operating  in  the same county or managed care plan network as appropriate;  (ii)  not take any action that would prevent a personal assistant from moving to a new  fiscal  intermediary  of  the  consumer's  choice,  nor require  the  consumer or the personal assistant to switch to a personal care or home health care program not under this section; and  (iii) upon request and consent, promptly transfer all records relating to the  individual's  health  and  care  authorizations,  and  personnel documents  to  the  fiscal  intermediary or personal care or home health care provider chosen by  the  consumer  and  assume  all  liability  for omissions or errors in such records.  (b)  Where a consumer is electing to transfer his or her services to a new fiscal intermediary or a personal care or home health care  provider by  the  consumer's  independent  choice,  the fiscal intermediary being discontinued shall comply with subparagraphs (ii) and (iii) of paragraph (a) of this subdivision.  (c) Where a fiscal intermediary is  suspending  or  ceasing  operation pursuant  to  an  order under subdivision four-b of this section, or has failed to submit an offer for a contract, or has been denied a  contract under  this  section, all the provisions of this subdivision shall apply except subparagraph (i) of paragraph (a) of this subdivision, notice  of which to all parties shall be provided by the department as appropriate.  (d)  where  a  fiscal  intermediary is acquired by, merges with, sells assets to, or engages in a transaction of a similar nature with a fiscal intermediary that was awarded a contract pursuant to subdivision  four-a of  this section, all the provisions of this subdivision shall apply. In providing notice  under  subparagraph  (i)  of  paragraph  (a)  of  this  subdivision,  the fiscal intermediary may inform the notice recipient of the applicable transaction  and,  if  applicable,  the  ability  of  the consumer  to  remain  with the awarded fiscal intermediary in accordance with any guidance issued by the commissioner.  (e)  The  local  social  services  district  or  managed care plan, as appropriate, shall supervise the transition of services and transfer  of records  and maintain provision of services by the personal assistant(s) chosen by the individual.  (f) Any transfer under this subdivision shall not diminish any  of  an individual's  rights  relating to continuity of care, utilization review or fair hearing appeals and aid continuing.   5. Waivers, regulation and effectiveness.  (a) The commissioner may, subject to the approval of the  director  of the  budget,  file  for  such  federal  waivers as may be needed for the implementation of the program.  (b) Notwithstanding any other provision of law,  the  commissioner  is authorized to waive any provision of section three hundred sixty-seven-b of  this  title  related  to  payment  and  may  promulgate  regulations necessary to carry out the objectives of the program, and which describe the responsibilities of the eligible individuals in arranging and paying for services and the protections assured such individuals  if  they  are unable or no longer desire to continue in the program.   6.  Notwithstanding  any inconsistent provision of this section or any other contrary provision  of  law,  managed  care  programs  established pursuant to section three hundred sixty-four-j of this title and managed long  term  care  plans  and  other care coordination models established pursuant to section four thousand four hundred  three-f  of  the  public health law shall offer consumer directed personal assistance programs to enrollees.   7. This section shall be effective if, to the extent that, and as long as,  federal  financial  participation  is  available  for  expenditures incurred under this section.   8. Subject to the availability of federal financial participation, the provisions  of  this  section  governing  consumer   directed   personal assistance services shall also apply to such services when offered under the  home and community-based attendant services and supports state plan option (Community First Choice) pursuant to 42 U.S.C. § 1396n(k).   9. Notwithstanding any contrary provision of law and  subject  to  the availability  of  federal  financial  participation,  for periods on and after April first, two thousand fourteen, the commissioner is authorized to  make  temporary  periodic  lump-sum  Medicaid  payments  to   fiscal intermediaries   principally  engaged  in  providing  consumer  directed personal assistance services to Medicaid patients,  in  accordance  with the following:  (a) eligible fiscal intermediaries shall include:  (i)  providers  undergoing  closure  or  substantial  reduction in the volume of care;  (ii) providers impacted by the closure of other health care providers;  (iii) providers subject to mergers,  acquisitions,  consolidations  or restructuring;  (iv)  providers  impacted by the merger, acquisition, consolidation or restructuring of other health care providers;  (v) providers seeking to ensure that access to care is  maintained  or increased; or  (vi)  on  or  after  January  first,  two  thousand fifteen, providers impacted by changes to the Fair Labor Standards Act  requiring  overtime pay for personal assistants working in excess of forty hours per week.  (b)  providers  seeking Medicaid payments under this subdivision shall demonstrate through submission of a written proposal to the commissioner that the additional resources provided by such  Medicaid  payments  will achieve one or more of the following:  (i) protect or enhance access to care;  (ii) protect or enhance quality of care;  (iii)  improve  the  cost effectiveness of the delivery of health care services; or  (iv) otherwise protect or enhance the health care delivery system,  as determined by the commissioner.  (c)(i) Such written proposal shall be submitted to the commissioner at least  sixty  days  prior to the requested commencement of such Medicaid payments and shall include a proposed budget to achieve the goals of the proposal. Any Medicaid payments  issued  pursuant  to  this  subdivision shall  be  made  over  a  specified period of time, as determined by the commissioner, of up  to  three  years.  At  the  end  of  the  specified time-frame such payments shall cease. The commissioner may establish, as a condition of receiving such Medicaid payments, benchmarks and goals to be  achieved  in  conformity  with  the  provider's  written proposal as approved by the commissioner and may  also  require  that  the  provider submit   such  periodic  reports  concerning  the  achievement  of  such benchmarks and goals as the commissioner  deems  necessary.  Failure  to achieve  satisfactory  progress,  as  determined by the commissioner, in accomplishing such benchmarks and goals shall be a basis for ending  the provider's   Medicaid  payments  prior  to  the  end  of  the  specified timeframe.  (ii) The commissioner may require that applications submitted pursuant to this subdivision be submitted in response to and in accordance with a request for applications or  a  request  for  proposals  issued  by  the commissioner.