NY Pub Health L § 2826 (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2826 - Temporary Adjustment to Reimbursement Rates.

§   2826.   Temporary   adjustment   to   reimbursement   rates.   (a) Notwithstanding any provision of  law  to  the  contrary,  within  funds appropriated  and  subject  to  the  availability  of  federal financial participation, the  commissioner  may  grant  approval  of  a  temporary adjustment  to  the  non-capital  components of rates, or make temporary lump-sum Medicaid  payments,  to  eligible  general  hospitals,  skilled nursing  facilities,  clinics and home care providers, provided however, that should federal financial participation not  be  available  for  any eligible  provider,  then  payments  pursuant to this subdivision may be made as grants  and  shall  not  be  deemed  to  be  medical  assistance payments.  (b) Eligible providers shall include:  (i) providers undergoing closure;  (ii) providers impacted by the closure of other health care providers;  (iii)  providers  subject  to mergers, acquisitions, consolidations or restructuring; or  (iv) providers impacted by the merger, acquisition,  consolidation  or restructuring of other health care providers.  (c)  Providers  seeking  temporary rate adjustments under this section shall demonstrate through  submission  of  a  written  proposal  to  the commissioner  that the additional resources provided by a temporary rate adjustment 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-1) The commissioner, under applications submitted to the department pursuant to subdivision (d) of this  section,  shall  consider  criteria that includes, but is not limited to:  (i)  Such  applicant's  financial  condition as evidenced by operating margins, negative fund balance or negative equity position;  (ii) The extent to which such applicant fulfills or  will  fulfill  an unmet  health  care  need  for  acute  inpatient, outpatient, primary or residential health care services in a community;  (iii) The extent to which such application will involve savings to the Medicaid program;  (iv) The quality of the application as evidenced by such application's long term solutions for such applicant  to  achieve  sustainable  health care   services,   improving   the   quality  of  patient  care,  and/or transforming the delivery of health  care  services  to  meet  community needs;  (v)  The  extent to which such applicant is geographically isolated in relation to other providers; or  (vi) The extent to  which  such  applicant  provides  services  to  an underserved area in relation to other providers.  (d) (i) Such  written  proposal shall be submitted to the commissioner at least sixty days  prior  to  the  requested  effective  date  of  the temporary  rate  adjustment,  and  shall  include  a  proposed budget to achieve the goals of the proposal. Any Medicaid payment issued  pursuant to  this  section  shall  be in effect for a specified period of time as determined by the commissioner, of up to three years. At the end of  the specified  timeframe  such  payments  or  adjustments to the non-capital component of rates shall cease, and the provider shall be reimbursed  in accordance with the otherwise applicable rate-setting methodology as set forth  in  applicable  statutes  and  regulations.  The commissioner may establish, as a condition of receiving such temporary  rate  adjustments  or  grants,  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 facility 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 facility's temporary rate adjustment or grant prior to the end of the specified timeframe. (ii) The commissioner may require that applications submitted pursuant to this  section  be  submitted  in response  to  and  in  accordance  with  a Request For Applications or a Request For Proposals issued by the commissioner.  (e) Notwithstanding any law to the contrary, general hospitals defined as critical access hospitals pursuant to  title  XVIII  of  the  federal social  security  act shall be allocated no less than seven million five hundred  thousand  dollars  annually  pursuant  to  this  section.   The department  of  health  shall  provide  a  report  to  the  governor and legislature no later than June first,  two  thousand  fifteen  providing recommendations  on  how  to  ensure  the  financial  stability  of, and preserve patient access to,  critical  access  hospitals,  including  an examination of permanent Medicaid rate methodology changes.  (e-1)  Thirty days prior to executing an allocation or modification to an allocation made pursuant to  this  section,  the  commissioner  shall provide  written notice to the chair of the senate finance committee and the chair of the assembly ways and means committee with regards  to  the intent  to  distribute such funds. Such notice shall include, but not be limited to, information on the methodology used to distribute the funds, the facility specific allocations of the funds,  any  facility  specific project  descriptions  or  requirements  for  receiving  such funds, the multi-year impacts of these allocations, and the availability of federal matching funds. The commissioner shall provide quarterly reports to  the chair of the senate finance committee and the chair of the assembly ways and  means committee on the distribution and disbursement of such funds. Within  sixty  days  of  the  effectiveness  of  this  subdivision,  the commissioner  shall  provide a written report to the chair of the senate finance committee and the chair of the assembly ways and means committee on all awards made pursuant to this section prior to  the  effectiveness of  this  subdivision,  including all information that is required to be included in the notice requirements of this subdivision.  (f) Notwithstanding any provision of law to the contrary, and  subject to  federal  financial  participation,  no less than ten million dollars shall be allocated to providers described in this subdivision; provided, however that if federal financial participation is unavailable  for  any eligible   provider,   or   for  any  potential  investment  under  this subdivision then the non-federal share  of  payments  pursuant  to  this subdivision may be made as state grants.  (i)  Providers  serving rural areas as such term is defined in section two thousand nine hundred fifty-one of this chapter, including  but  not limited to hospitals, residential health care facilities, diagnostic and treatment  centers,  ambulatory  surgery  centers  and  clinics shall be eligible for enhanced payments or  reimbursement  under  a  supplemental rate  methodology  for the purpose of promoting access and improving the quality of care.  (ii) Notwithstanding any provision of law to the contrary, and subject to  federal  financial  participation,  essential  community  providers, which,  for  the  purposes  of  this section, shall mean a provider that offers health services within a defined and isolated  geographic  region where  such services would otherwise be unavailable to the population of such region, shall be eligible for enhanced  payments  or  reimbursement  under  a  supplemental  rate  methodology  for  the purpose of promoting access and improving quality of  care.  Eligible  providers  under  this paragraph  may  include,  but are not limited to, hospitals, residential health  care  facilities,  diagnostic  and treatment centers, ambulatory surgery centers and clinics.  (iii) In making such payments the  commissioner  may  contemplate  the extent  to which any such provider receives assistance under subdivision (a) of this section and may require such provider to  submit  a  written proposal  demonstrating  that the need for monies under this subdivision exceeds monies otherwise distributed pursuant to this section.  (iv) Payments under this subdivision may include, but not  be  limited to, temporary rate adjustments, lump sum Medicaid payments, supplemental rate   methodologies  and  any  other  payments  as  determined  by  the commissioner.  (v) Payments under this subdivision shall be subject  to  approval  by the director of the budget.  (vi)  The  commissioner  may  promulgate regulations to effectuate the provisions of this subdivision.  (vii) Thirty days prior to  adopting  or  applying  a  methodology  or procedure for making an allocation or modification to an allocation made pursuant  to  this  subdivision,  the commissioner shall provide written notice to the chairs of the senate finance committee, the assembly  ways and  means committee, and the senate and assembly health committees with regard to the intent to adopt or apply  the  methodology  or  procedure, including a detailed explanation of the methodology or procedure.  (viii) Thirty days prior to executing an allocation or modification to an  allocation made pursuant to this subdivision, the commissioner shall provide written notice to the chairs of the  senate  finance  committee, the  assembly  ways  and  means  committee,  and the senate and assembly health committees with regard to the intent to  distribute  such  funds. Such  notice  shall  include,  but not be limited to, information on the methodology  used  to  distribute  the  funds,  the  facility   specific allocations  of the funds, any facility specific project descriptions or requirements for receiving such funds, the multi-year impacts  of  these allocations,  and  the  availability  of  federal  matching  funds.  The commissioner shall provide quarterly reports to the chair of the  senate finance committee and the chair of the assembly ways and means committee on the distribution and disbursement of such funds.  (g)  Notwithstanding  subdivision  (a)  of  this  section,  and within amounts appropriated for such purposes  as  described  herein,  for  the period  of April first, two thousand fifteen through March thirty-first, two thousand sixteen, the commissioner may award a temporary  adjustment to  the  non-capital  components  of  rates,  or make temporary lump-sum Medicaid payments to eligible  general  hospitals  in  severe  financial distress  to  enable  such  facilities  to maintain operations and vital services while such facilities establish long term solutions to  achieve sustainable health services.  (i) Eligible general hospitals shall include:  (A)  a  public hospital, which for purposes of this subdivision, shall mean a general hospital operated by a county or municipality, but  shall exclude any such hospital operated by a public benefit corporation;  (B) a federally designated critical access hospital;  (C) a federally designated sole community hospital; or  (D)  a  general  hospital  that  is  a  safety net hospital, which for purposes of this subdivision shall mean:  (1) such hospital  has  at  least  thirty  percent  of  its  inpatient discharges   made   up   of  Medicaid  eligible  individuals,  uninsured individuals or Medicaid dually eligible individuals and  with  at  least  thirty-five  percent  of  its  outpatient  visits  made  up  of Medicaid eligible individuals, uninsured individuals or Medicaid  dually-eligible individuals; or  (2) such hospital serves at least thirty percent of the residents of a county  or  a  multi-county  area who are Medicaid eligible individuals, uninsured individuals or Medicaid dually-eligible individuals.  (ii) Eligible applicants must demonstrate  that  without  such  award, they  will  be  in severe financial distress through March thirty-first, two thousand sixteen, as evidenced by:  (A) certification that such applicant has less than fifteen days  cash and equivalents;  (B)  such  applicant  has  no  assets that can be monetized other than those vital to operations; and  (C) such applicant has exhausted all efforts to obtain resources  from corporate parents and affiliated entities to sustain operations.  (iii)  Awards under this subdivision shall be made upon application to the department.  (A) Applications under this subdivision  shall  include  a  multi-year transformation  plan  that  is  aligned  with the delivery system reform incentive payment ("DSRIP") program  goals  and  objectives.  Such  plan shall be approved by the department and shall demonstrate a path towards long term sustainability and improved patient care.  (B)  The  department  may authorize initial award payments to eligible applicants based solely on the criteria pursuant to paragraphs  (i)  and (ii) of this subdivision.  (C) Notwithstanding subparagraph (B) of this paragraph, the department may  suspend or repeal an award if an eligible applicant fails to submit a multi-year transformation plan pursuant to subparagraph  (A)  of  this paragraph  that  is  acceptable  to  the department by no later than the thirtieth day of September two thousand fifteen.  (D) Applicants under this subdivision shall detail the extent to which the affected community has  been  engaged  and  consulted  on  potential projects  of  such  application, as well as any outreach to stakeholders and health plans.  (E)  The  department  shall  review  all   applications   under   this subdivision, and a determine:  (1) applicant eligibility;  (2) each applicant's projected financial status;  (3)  each  applicant's  proposed  use  of  funds  to maintain critical services needed by its community; and  (4) the anticipated impact of the loss of such services.  (F) After review of all applications under  this  subdivision,  and  a determination of the aggregate amount of requested funds, the department shall  make  awards to eligible applicants; provided, however, that such awards may be in an amount lower than such requested funding, on  a  per applicant or aggregate basis.  (iv) Awards under this subdivision may not be used for:  (A) capital expenditures, including, but not limited to: construction, renovation and acquisition of capital equipment, including major medical equipment;  (B) consultant fees;  (C) retirement of long term debt; or  (D) bankruptcy-related costs.  (v)  Payments  made  to awardees pursuant to this subdivision shall be made on a monthly basis. Such payments will be based on the  applicant's actual   monthly  financial  performance  during  such  period  and  the reasonable cash amount necessary to sustain operations for the following month. The applicant's monthly financial performance shall  be  measured  by  such applicant's monthly financial and activity reports, which shall include, but not be limited to, actual  revenue  and  expenses  for  the prior  month,  projected  cash need for the current month, and projected cash need for the following month.  (vi) The department shall provide a report on a quarterly basis to the chairs of the senate finance, assembly ways and means, senate health and assembly  health  committees.  Such  reports shall be submitted no later than sixty days after the close of the quarter, and  shall  include  for each award, the name of the applicant, the amount of the award, payments to   date,   and   a   description  of  the  status  of  the  multi-year transformation plan pursuant to paragraph (iii) of this subdivision.