NY Pub Health L § 4403-F (2021)
2021 New York Laws PBH - Public Health Article 44 - Health Maintenance Organizations 4403-F - Managed Long Term Care Plans.

* §  4403-f.  Managed long term care plans. 1. Definitions. As used in this section:  (a) "Managed long term care plan" means an entity that has received  a certificate of authority pursuant to this section to provide, or arrange for,  health  and  long  term  care  services,  on  a capitated basis in accordance with this section, for a population, age eighteen  and  over, which the plan is authorized to enroll.  (b) "Eligible applicant" means an entity controlled or wholly owned by one  or  more of the following: a hospital as defined in subdivision one of section twenty-eight hundred one of this chapter; a home care  agency licensed or certified pursuant to article thirty-six of this chapter; an entity that has received a certificate of authority pursuant to sections forty-four  hundred  three,  forty-four  hundred  three-a  or forty-four hundred eight-a of  this  article  (as  added  by  chapter  six  hundred thirty-nine  of  the  laws  of nineteen hundred ninety-six), or a health maintenance organization authorized under  article  forty-three  of  the insurance  law;  or a not-for-profit organization which has a history of providing or coordinating  health  care  services  and  long  term  care services to the elderly and disabled.  (c)  "Operating  demonstration"  means  the  following  entities:  the chronic care management demonstration  programs  authorized  by  chapter five  hundred  thirty  of  the  laws  of  nineteen hundred eighty-eight, chapter five hundred  ninety-seven  of  the  laws  of  nineteen  hundred ninety-four  and  chapter  eighty-one  of  the  laws of nineteen hundred ninety-five as amended.  (d) "Health and long term care services" means services including, but not limited to home and community-based and institution-based long  term care  and  ancillary  services  (that shall include medical supplies and nutritional supplements) that are necessary to meet the needs of persons whom the plan is authorized to enroll. The managed long term  care  plan may  also  cover primary care, acute care and behavioral health services if so authorized.   2. Certificate of authority; form. An eligible applicant shall  submit an  application for a certificate of authority to operate a managed long term care plan upon forms prescribed by the commissioner. Such  eligible applicant shall submit information and documentation to the commissioner which shall include, but not be limited to:  (a)  a  description  of  the service area proposed to be served by the plan with projections of enrollment that will result in a fiscally sound plan;  (b) a description of the proposed target population and the  marketing plan;  (c) adequate documentation of the appropriate licenses, certifications or  approvals  to provide care as planned, including contracts with such providers as may be necessary to provide the full complement of services required to be provided under this section.   3. Certificate of authority;  approval.  The  commissioner  shall  not approve  an  application  for  a  certificate  of  authority  unless the applicant demonstrates to the commissioner's satisfaction:  (a)  that  it  will  have  in   place   acceptable   quality-assurance mechanisms,  grievance  procedures,  mechanisms to protect the rights of enrollees and case management services to  ensure  continuity,  quality, appropriateness and coordination of care;  (b) that it will include an enrollment process which shall ensure that enrollment  in  the plan is informed. The application shall describe the disenrollment process, which shall provide that  an  otherwise  eligible enrollee  shall  not be involuntarily disenrolled on the basis of health status;  (c) satisfactory evidence of  the  character  and  competence  of  the proposed  operators  and  reasonable  assurance  that the applicant will provide high quality services to an enrolled population;  (d) sufficient management systems capacity to meet the requirements of this  section and the ability to efficiently process payment for covered services;  (e)  readiness  and  capability  to  maximize  reimbursement  of   and coordinate  services  reimbursed  pursuant to title XVIII of the federal social security act and all other applicable benefits, with such benefit coordination including, but not limited to, measures  to  support  sound clinical  decisions, reduce administrative complexity, coordinate access to services, maximize benefits available  pursuant  to  such  title  and ensure that necessary care is provided;  (f)  readiness  and  capability to arrange and manage covered services and  coordinate  non-covered  services  which  could  include   primary, specialty,  and  acute care services reimbursed pursuant to title XIX of the federal social security act;  (g) willingness and capability of taking, or cooperating in, all steps necessary to secure and integrate any potential sources of  funding  for services provided by the managed long term care plan, including, but not limited to, funding available under titles XVI, XVIII, XIX and XX of the federal social security act, the federal older Americans act of nineteen hundred  sixty-five,  as amended, or any successor provisions subject to approval of the director of the state  office  for  aging,  and  through financing  options  such  as  those authorized pursuant to section three hundred sixty-seven-f of the social services law;  (h) that the contractual arrangements for providers of health and long term care services in the benefit package are sufficient to  ensure  the availability and accessibility of such services to the proposed enrolled population  consistent  with guidelines established by the commissioner; with respect to  individuals  in  receipt  of  such  services  prior  to enrollment,  such  guidelines  shall  require the managed long term care plan to contract with agencies currently  providing  such  services,  in order  to promote continuity of care. In addition, such guidelines shall require managed long  term  care  plans  to  offer  and  cover  consumer directed personal assistance services for eligible individuals who elect such  services  pursuant  to  section  three hundred sixty-five-f of the social services law; and  (i) that the applicant is financially responsible and may be  expected to meet its obligations to its enrolled members.   4. Solvency. (a) The commissioner shall be responsible for evaluating, approving  and  regulating  all  matters  relating  to  fiscal solvency, including reserves, surplus and provider contracts. The commissioner may promulgate regulations to implement this section. The  commissioner,  in the administration of this subdivision:  (i)  shall be guided by the standards which govern the fiscal solvency of a  health  maintenance  organization,  provided,  however,  that  the commissioner   shall   recognize   the   specific  delivery  components, operational capacity and financial capability of the eligible  applicant for a certificate of authority;  (ii)  shall  not  apply financial solvency standards that exceed those required for a health maintenance organization; and  (iii) shall establish reasonable capitalization and contingent reserve requirements.  (b) Standards  established  pursuant  to  this  subdivision  shall  be adequate to protect the interests of enrollees in managed long term care plans.   The commissioner shall be satisfied that the eligible applicant  is financially sound, and  has  made  adequate  provisions  to  pay  for services.   4-a.  Role  of  the  superintendent  of  financial  services.  (a) The superintendent  of  financial  services  shall  determine  and   approve premiums in accordance with the insurance law whenever any population of enrollees  not  eligible  under title XIX of the federal social security act  is  to  be  covered.  The  determination  and   approval   of   the superintendent of financial services shall relate to premiums charged to such  enrollees  not  eligible  under  title  XIX  of the federal social security act.  (b) The  superintendent  of  financial  services  shall  evaluate  and approve  any  enrollee contracts whenever such enrollee contracts are to cover any population of enrollees not eligible under title  XIX  of  the federal social security act.   5. Applicability of other laws. A managed long term care plan shall be subject   to  the  provisions  of  the  insurance  law  and  regulations applicable  to  health  maintenance  organizations,  this  article   and regulations  promulgated  pursuant  thereto.  To  the  extent  that  the provisions of this section are inconsistent with the provisions of  this chapter  or  the provisions of the insurance law, the provisions of this section shall prevail.   6. Approval authority.  (a) An applicant shall be issued a certificate of authority as a managed long term care plan upon  a  determination  by the   commissioner  that  the  applicant  complies  with  the  operating requirements for a managed long term care plan under this  section.  The commissioner  shall  issue  no  more  than  seventy-five certificates of authority to managed long term care  plans  pursuant  to  this  section. Nothing  in  this section shall be construed as requiring the department to contract with or to contract for a particular line of  business  with an  entity  certified  under  this section for the provision of services available under title eleven of article five of the social services law.  (b) An operating  demonstration  shall  be  issued  a  certificate  of authority  as  a managed long term care plan upon a determination by the commissioner  that  such  demonstration  complies  with  the   operating requirements  for  a  managed  long  term  care plan under this section. Nothing in this section shall be construed to affect the continued legal authority of  an  operating  demonstration  to  operate  its  previously approved program.  (c)  For  the  period  beginning  April first, two thousand twelve and ending March thirty-first, two thousand fifteen, the majority leader  of the  senate  and  the  speaker of the assembly may each recommend to the commissioner, in writing, up to four eligible applicants to  convert  to be  approved  managed  long  term care plans. An applicant shall only be approved and issued a  certificate  of  authority  if  the  commissioner determines  that  the  applicant  meets  the requirements of subdivision three of this section. The majority leader of the senate or the  speaker of  the  assembly  may  assign  their authority to recommend one or more applicants under this section to the commissioner.  (d) (i) Effective April first, two thousand twenty, and expiring March thirty-first, two thousand twenty-two, the commissioner  shall  place  a moratorium  on  the  processing  and  approval of applications seeking a certificate of authority as a managed long term care  plan  pursuant  to this  section, including applications seeking authorization to expand an existing managed long term care plan's approved service area or scope of eligible enrollee populations. Such moratorium shall not apply to:  (A) applications submitted to the department prior to  January  first, two thousand twenty;  (B)  applications seeking approval to transfer ownership or control of an existing managed long term care plan;  (C) applications demonstrating to the commissioner's satisfaction that submission  of the application for consideration would be appropriate to address a serious concern with care delivery, such as a lack of adequate access to managed long term care plans in a geographic area or a lack of adequate and appropriate care,  language  and  cultural  competence,  or special needs services; and  (D)  applications  seeking  to  operate  under  the  PACE  (Program of All-Inclusive Care for the  Elderly)  model  as  authorized  by  federal public  law 105-33, subtitle I of title IV of the Balanced Budget Act of 1997, or to serve individuals dually eligible for services and  benefits under  titles  XVIII  and  XIX  of  the  federal  social security act in conjunction with an affiliated  Medicare  Dual  Eligible  Special  Needs Plan,  based on the need for such plans and the experience of applicants in serving dually eligible individuals as determined by the commissioner in their discretion.  (ii) For the duration of the moratorium, the commissioner shall assess the public need for managed long term care plans that are not integrated with an affiliated Medicare plan, the ability of such plans  to  provide high  quality and cost effective care for their membership, and based on such assessment develop a process and conduct an orderly  wind-down  and elimination  of  such plans, which shall coincide with the expiration of the  moratorium  unless  the  commissioner  determines  that  a   longer wind-down period is needed.  (e)  For  the  duration  of the moratorium under paragraph (d) of this subdivision, the commissioner shall establish, and enforce by means of a premium withholding equal to three percent of the base rate,  an  annual cap on total enrollment (enrollment cap) for each managed long term care plan,  subject  to subparagraphs (ii) and (iii) of this paragraph, based on a percentage of each plan's reported enrollment as of October  first, two thousand twenty.  (i)  The  specific  percentage  of each plan's enrollment cap shall be established by the commissioner based on: (A) the ability of individuals eligible for such plans to access health and long  term  care  services, (B)  plan quality of care scores, (C) historical plan disenrollment, (D) the projected growth of individuals eligible for such plans in different regions of the state, (E) historical plan enrollment  of  patients  with varying  levels  of  need  and  acuity,  and  (F)  other  factors in the commissioner's   discretion   to   ensure   compliance   with    federal requirements,  appropriate  access  to  plan  services,  and  choice  by eligible individuals.  (ii) In the event that a plan exceeds its annual enrollment  cap,  the commissioner  is  authorized  under  this  paragraph  to retain all or a portion of the premium withheld based on the amount over  which  a  plan exceeds   its  enrollment  cap.  Penalties  assessed  pursuant  to  this subdivision shall be determined by regulation.  (iii) The commissioner may  not  establish  an  annual  cap  on  total enrollment  under  this paragraph for plans' lines of business operating under the PACE (Program of All-Inclusive Care for the Elderly) model  as authorized  by  federal public law 105-33, subtitle I of title IV of the Balanced Budget Act of 1997, or that serve individuals  dually  eligible for  services  and  benefits  under  titles XVIII and XIX of the federal social security act in conjunction  with  an  affiliated  Medicare  Dual Eligible Special Needs Plan.  (f)  In  implementing the provisions of paragraphs (d) and (e) of this subdivision, the commissioner shall, to the extent practicable, consider and select methodologies that seek to maximize continuity  of  care  and  minimize  disruption  to the provider labor workforce, and shall, to the extent practicable and consistent with  the  ratios  set  forth  herein, continue  to  support contracts between managed long term care plans and licensed  home  care services agencies that are based on a commitment to quality and value.   7. Program oversight and administration. (a)(i) The commissioner shall promulgate regulations to implement  this  section  and  to  ensure  the quality, appropriateness and cost-effectiveness of the services provided by  managed  long  term care plans. The commissioner may waive rules and regulations of the department,  including  but  not  limited  to,  those pertaining to duplicative requirements concerning record keeping, boards of  directors, staffing and reporting, when such waiver will promote the efficient delivery of appropriate, quality, cost-effective services  and when  the  health,  safety  and general welfare of enrollees will not be impaired as a result of such waiver. In order to  achieve  managed  long term  care  plan system efficiencies and coordination and to promote the objectives of high quality, integrated  and  cost  effective  care,  the commissioner  may  establish  a single coordinated surveillance process, allow for a comprehensive quality improvement and review process to meet component quality requirements, and require a uniform cost  report.  The commissioner  shall  require  managed  long  term  care plans to utilize quality  improvement  measures,  based  on  health  outcomes  data,  for internal  quality  assessment processes and may utilize such measures as part of the single coordinated surveillance process.  (ii) Notwithstanding any inconsistent provision of the social services law to the contrary, the commissioner  shall,  pursuant  to  regulation, determine  whether  and the extent to which the applicable provisions of the social  services  law  or  regulations  relating  to  approvals  and authorizations  of, and utilization limitations on, health and long term care services reimbursed pursuant to title XIX  of  the  federal  social security   act,   including,  but  not  limited  to,  fiscal  assessment requirements, are inconsistent with the flexibility  necessary  for  the efficient  administration  of  managed  long  term  care  plans and such regulations shall provide that such provisions shall not  be  applicable to  enrollees  or  managed  long  term  care  plans,  provided that such determinations  are  consistent  with   applicable   federal   law   and regulation,  and  subject  to  the  provisions  of  subdivision eight of section three hundred sixty-five-a of the social services law.   * (b) (i) The commissioner shall, to the extent necessary, submit  the appropriate  waivers,  including,  but  not limited to, those authorized pursuant to sections eleven hundred fifteen and nineteen hundred fifteen of the federal social security act, or  successor  provisions,  and  any other  waivers  necessary  to  achieve  the  purposes  of  high quality, integrated, and cost effective care and integrated financial eligibility policies under the medical assistance program or pursuant to title XVIII of the federal social security act. In  addition,  the  commissioner  is authorized  to submit the appropriate waivers, including but not limited to those authorized pursuant to  sections  eleven  hundred  fifteen  and nineteen hundred fifteen of the federal social security act or successor provisions, and any other waivers necessary to require on or after April first,  two  thousand  twelve,  medical  assistance  recipients  who are twenty-one years of age or older and who  require  community-based  long term  care  services, as specified by the commissioner, for a continuous period of more than  one  hundred  and  twenty  days,  to  receive  such services through an available plan certified pursuant to this section or other  program model that meets guidelines specified by the commissioner that support coordination and integration of services.  Such  guidelines shall  address  the  requirements of paragraphs (a), (b), (c), (d), (e),  (f), (g), (h), and (i) of subdivision three of this section as  well  as payment  methods  that ensure provider accountability for cost effective quality outcomes. Such other program models may include long  term  home health  care  programs  that comply with such guidelines. Copies of such original waiver applications and amendments thereto shall be provided to the chairs of the senate finance committee, the assembly ways and  means committee  and  the senate and assembly health committees simultaneously with their submission to the federal government.  (ii) The commissioner, shall seek input from representatives  of  home and  community-based  long term care services providers, recipients, and the Medicaid managed  care  advisory  review  panel,  among  others,  to further  evaluate  and  promote  the transition of persons in receipt of home and community-based long term care services into managed long  term care  plans and other care coordination models and to develop guidelines for such care coordination models. The guidelines shall be finalized and posted on the department's website no later than November  fifteen,  two thousand eleven.  (iii) Notwithstanding and in addition to any provision of subparagraph (i)  of  this paragraph and subject to any federal requirements, persons dually eligible for medical assistance and benefits  under  the  federal Medicare  program  who  are enrolled in a Medicare Dual Eligible Special Needs Plan and  who  do  not  require  community-based  long  term  care services,  as  specified by the commissioner, for a continuous period of more than one hundred and twenty days shall be required to  enroll  with an  available  affiliated  plan  certified pursuant to this section when program  features  and  reimbursement  rates   are   approved   by   the commissioner.  (v)  The following medical assistance recipients shall not be eligible to participate in a  managed  long  term  care  program  or  other  care coordination  model established pursuant to this paragraph until program features and reimbursement rates are approved by the  commissioner  and, as applicable, the commissioner of developmental disabilities:  (1) a person enrolled in a managed care plan pursuant to section three hundred sixty-four-j of the social services law;  (2)  a  participant  in the traumatic brain injury waiver program or a person whose circumstances would qualify him or her for the  program  as it existed on January first, two thousand fifteen;  (3)  a participant in the nursing home transition and diversion waiver program or a person whose circumstances would qualify him or her for the program as it existed on January first, two thousand fifteen;  (4) a person enrolled in the assisted living program;  (5) a person enrolled in home  and  community  based  waiver  programs administered by the office for people with developmental disabilities;  (6) a person who is expected to be eligible for medical assistance for less  than  six  months,  for  a  reason  other  than that the person is eligible for medical assistance only through the application  of  excess income toward the cost of medical care and services;  (7) a person who is eligible for medical assistance benefits only with respect to tuberculosis-related services;  (8)  a  person  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;  (9) 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 social services district;  (10)   a   person  receiving  family  planning  services  pursuant  to subparagraph six of paragraph (b) of subdivision one  of  section  three hundred sixty-six of the social services law;  (11)  a  person  who  is  eligible  for medical assistance pursuant to paragraph (b) of subdivision four of section three hundred sixty-six  of the social services law;  (12) Native Americans;  (13)  a  person  who  is  permanently  placed  in a nursing home for a consecutive period  of  three  months  or  more.  In  implementing  this provision, the department shall continue to support service delivery and outcomes that result in community living for enrollees; and  (14)  a  person  who has not been assessed as needing at least limited assistance with physical maneuvering with more than  two  activities  of daily  living,  or  for  individuals  with  a  dementia  or  Alzheimer's diagnosis, assessed as needing at least supervision with more  than  one activity  of  daily living, as defined and determined using an evidenced based validated assessment instrument approved by the  commissioner  and in  accordance  with applicable state and federal law and regulations of the department, provided that the provisions of this  clause  shall  not apply  to  a person who has been continuously enrolled in a managed long term care program beginning prior to October first, two thousand twenty.  (v-a)  For  purposes  of  clause  two  of  subparagraph  (v)  of  this paragraph,  program  features shall be substantially comparable to those services available to traumatic brain injury waiver participants  as  of January  first,  two  thousand  fifteen,  subject  to  federal financial participation.  (v-b) For purposes  of  clause  three  of  subparagraph  (v)  of  this paragraph,  program  features shall be substantially comparable to those services  offered  to  nursing  home  transition  and  diversion  waiver participants  as  of  January  first,  two  thousand fifteen, subject to federal financial participation.  (v-c) Any managed care program providing services under clause two  or three  of  subparagraph  (v)  of  this  paragraph shall have an adequate network of trained providers to meet the needs of enrollees and  provide services under this subdivision.  (v-d)  Any  individual  providing  service  coordination  pursuant  to subparagraph (v-a) or (v-b) of this paragraph shall exercise his or  her professional  duties  in  the  interests of the patient. Nothing in this subparagraph  shall  be  construed  as  diminishing  the  authority  and obligations  of  a  managed  long  term care plan under this article and article forty-nine of this chapter.  (vi) persons required to enroll in the managed long term care  program or  other care coordination model established pursuant to this paragraph shall have no less than thirty days to select a managed long  term  care provider,  and  shall  be  provided with information to make an informed choice. Where a participant  has  not  selected  such  a  provider,  the commissioner  shall  assign such participant to a managed long term care provider, taking into account consistency with any prior community-based direct care  workers  having  recently  served  the  recipient,  quality performance  criteria, capacity and geographic accessibility. During the period prior to  receiving  services  from  a  managed  long  term  care provider  assigned  under  this  subparagraph,  the  person  may receive services under fee for service Medicaid.  (vii) If another long term care plan certified under this  section  is available,  medical  assistance  recipients  required  to enroll in such plans pursuant to this  section,  including  recipients  who  have  been  assigned  to  a  provider  by the commissioner, may change plans without cause within ninety days of either notification  of  enrollment  or  the effective  date  of  enrollment  into  a  plan,  whichever  is later, by submitting  a  request  to  the entity designated by the department in a format to be determined by the department. In  accordance  with  federal statutes  and  regulations, after such ninety-day period, the department may prohibit a recipient from changing plans more frequently  than  once every  twelve months, except for good cause. Good cause may include poor quality of care, lack of access to covered services, lack of  access  to providers  experienced  in dealing with the enrollee's care needs, or as otherwise determined by the commissioner.  (viii) Managed long term care provided and plans  certified  or  other care  coordination  model  established  pursuant to this paragraph shall comply with the provisions of paragraphs (d),  (i),  (t),  and  (u)  and subparagraph  (iii)  of paragraph (a) and subparagraph (iv) of paragraph (e) of subdivision four of section three  hundred  sixty-four-j  of  the social services law.  (ix)   (1)   The   commissioner   shall   report   biannually  on  the implementation of this subdivision. The reports shall include,  but  not be limited to:  (A)  satisfaction of enrollees with care coordination/case management; timeliness of care;  (B) service utilization data including changes in  the  level,  hours, frequency, and types of services and providers;  (C) enrollment data, including auto-assignment rates by plan;  (D) quality data; and  (E)  continuity  of care for participants as they move to managed long term care, with respect to community based and nursing home populations, including pediatric nursing  home  populations,  and  medically  fragile children  being  served  by home care agencies affiliated with pediatric nursing homes and diagnostic and  treatment  centers  primarily  serving medically fragile children.  (2)  The  commissioner  shall  publish  the report on the department's website and provide notice to the temporary president of the senate, the speaker of the assembly, the chair of the senate standing  committee  on health,  the  chair  of  the  assembly health committee and the Medicaid Managed Care Advisory Review Panel upon availability of the report.  The initial  report  shall  be  provided  by  September  first, two thousand twelve. The reports shall be made available by each February first,  and September  first  thereafter.  Such  reports shall be formatted to allow comparisons between plans.   * NB Effective until April 1, 2023   * (b) The commissioner shall, to  the  extent  necessary,  submit  the appropriate  waivers,  including,  but  not limited to, those authorized pursuant to sections eleven hundred fifteen and nineteen hundred fifteen of the federal social security act, or  successor  provisions,  and  any other  waivers  necessary  to  achieve  the  purposes  of  high quality, integrated, and cost effective care and integrated financial eligibility policies under the medical assistance program or pursuant to title XVIII of the federal social security  act.  Copies  of  such  original  waiver applications  shall  be  provided  to the chairman of the senate finance committee and the chairman of the  assembly  ways  and  means  committee simultaneously with their submission to the federal government.   * NB Effective April 1, 2023  (c)(i)  A  managed  long  term  care  plan  shall not use deceptive or coercive marketing  methods  to  encourage  participants  to  enroll.  A managed  long term care plan shall not distribute marketing materials to  potential enrollees before such materials  have  been  approved  by  the commissioner.  (ii)  The  commissioner  shall  ensure,  through  periodic  reviews of managed long term care plans, that enrollment was  an  informed  choice; such plan has only enrolled persons whom it is authorized to enroll, and plan services are promptly available to enrollees when appropriate. Such periodic  reviews  shall be made according to standards as determined by the commissioner in regulations.  (d) Notwithstanding any provision of law, rule or  regulation  to  the contrary,  the  commissioner  may issue a request for proposals to carry out reviews of enrollment and assessment activities in managed long term care plans  and  operating  demonstrations  with  respect  to  enrollees eligible  to  receive  services  under  title  XIX of the federal social security act to  determine  if  enrollment  meets  the  requirements  of subparagraph  (ii)  of  paragraph  (c)  of  this  subdivision;  and that assessments of such enrollees' health, functional and other status,  for the purpose of adjusting premiums, were accurate.  (e)  The commissioner may, in his or her discretion for the purpose of protection of enrollees, impose measures including, but not limited  to, bans  on  further  enrollments  and  requirements  for use of enrollment brokers until any identified problems are resolved to  the  satisfaction of the commissioner.  (f)  Continuation  of  a  certificate  of  authority issued under this section shall be contingent upon satisfactory performance by the managed long term care plan in the  delivery,  continuity,  accessibility,  cost effectiveness   and   quality  of  the  services  to  enrolled  members; compliance with applicable provisions of  this  section  and  rules  and regulations  promulgated  thereunder;  the continuing fiscal solvency of the organization; and, federal financial participation  in  payments  on behalf of enrollees who are eligible to receive services under title XIX of the federal social security act.  (g)  * (i)  Managed long term care plans and demonstrations may enroll eligible persons in the plan or demonstration upon the completion  of  a comprehensive  assessment  that shall include, but not be limited to, an evaluation of the medical, social, cognitive, and environmental needs of each prospective enrollee in such program. This  assessment  shall  also serve  as  the basis for the development and provision of an appropriate plan of care for the enrollee. Upon approval of federal waivers pursuant to paragraph (b) of this subdivision which  require  medical  assistance recipients who require community-based long term care services to enroll in  a  plan, and upon approval of the commissioner, a plan may enroll an applicant who is currently receiving home and  community-based  services and   complete  the  comprehensive  assessment  within  thirty  days  of enrollment provided that the plan continues to cover  transitional  care until such time as the assessment is completed.   * NB Effective until April 1, 2023   * (i)  Managed  long  term  care  plans  and demonstrations may enroll eligible persons in the plan or demonstration upon the completion  of  a comprehensive  assessment  that shall include, but not be limited to, an evaluation of the  medical,  social  and  environmental  needs  of  each prospective  enrollee  in such program. This assessment shall also serve as the basis for the development and provision of an appropriate plan of care for the prospective enrollee.   * NB Effective April 1, 2023  (ii) The assessment shall be completed  by  a  representative  of  the managed  long  term care plan or demonstration, in consultation with the prospective  enrollee's  health  care  practitioner  as  necessary.  The  commissioner  shall prescribe the forms on which the assessment shall be made.  (iii)  The  enrollment  application  shall be submitted by the managed long term care plan or demonstration to the  entity  designated  by  the department  prior to the commencement of services under the managed long term care plan or demonstration. Enrollments  conducted  by  a  plan  or demonstration  shall be subject to review and audit by the department or a contractor selected pursuant to paragraph (d) of this subdivision.  (iv) Continued  enrollment  in  a  managed  long  term  care  plan  or demonstration  paid  for  by  government  funds  shall  be  based upon a comprehensive assessment of the medical, social and environmental  needs of  the recipient of the services. Such assessment shall be performed at least annually by the managed long term care plan serving the  enrollee. The  commissioner shall prescribe the forms on which the assessment will be made.  (h) * The commissioner and, in the case of a  plan  arranging  for  or providing  services  operated, certified, funded, authorized or approved by  the  office  for  people  with   developmental   disabilities,   the commissioner  of  the office for people with developmental disabilities, shall, upon request by a  managed  long  term  care  plan  or  operating demonstration,  and  consistent  with  federal  regulations  promulgated pursuant to the Health Insurance  Portability  and  Accountability  Act, share  with  such  plan  or  demonstration  the  following data if it is available:   * NB Effective until September 30, 2023   * The commissioner shall, upon request by a  managed  long  term  care plan or operating demonstration, and consistent with federal regulations promulgated   pursuant   to   the   Health   Insurance  Portability  and Accountability Act, share with such plan or demonstration the  following data if it is available:   * NB Effective September 30, 2023  (i)  information  concerning  utilization of services and providers by each of its enrollees prior to and during enrollment, including but  not limited  to  utilization  of emergency department services, prescription drugs, and hospital and nursing facility admissions.  (ii) aggregate data concerning utilization and costs for enrollees and for comparable  cohorts  served  through  the  Medicaid  fee-for-service program.  (j)  Limitations  on  licensed home care service agency contracts. (i) The commissioner may establish methodologies  to  limit  the  number  of licensed  home  care  services  agencies  licensed  pursuant  to article thirty-six of the public health law with which managed  long  term  care plans  may  enter  into  contracts,  provided  that such limitations are consistent with the specifications set forth in this paragraph.  (ii) Managed long term care plans operating in the city  of  New  York and/or  the  counties of Nassau, Suffolk, and Westchester may enter into contracts with licensed home care services agencies in such region in  a maximum number calculated based upon the following methodology:  (A)  As  of  October  first,  two  thousand eighteen, one contract per seventy-five members enrolled in the plan within such region; and  (B) As of October first, two thousand nineteen, one contract  per  one hundred members enrolled in the plan within such region.  (iii)  Managed  long  term care plans operating in counties other than those in the city of New York and the counties of Nassau,  Suffolk,  and Westchester  may  enter  into contracts with licensed home care services agencies in such region in a maximum number calculated  based  upon  the following methodology:  (A)  As  of  October  first,  two  thousand eighteen, one contract per forty-five members enrolled in the plan within such region.  (B) As of October first, two thousand nineteen, one contract per sixty members enrolled in the plan within such region.  (iv) Notwithstanding subparagraphs (ii) and (iii) of this paragraph, a managed long term care plan shall not enter into less than the number of contracts  with  licensed  home care services agencies in each county in which the plan operates  as  is  necessary  to  remain  consistent  with network   adequacy   standards,  as  determined  by  the  department  in accordance with federal regulations.  (v) When calculating the number of additional contracts that a managed long term care  plan  may  enter  using  the  methodologies  established pursuant to this paragraph, any fractional result shall be rounded down.  (vi)  The  commissioner  may increase the number of licensed home care services agencies with which a managed long term care plan may contract, on a county by county basis, if the commissioner  determines  that  such increase  is  necessary  to:  ensure  adequate access to services in the geographic area including, but not limited to,  special  needs  services and  services  that are culturally and linguistically appropriate; or to avoid disruption in services in the geographic area.  (vii) Any licensed home care services agency that ceases operation  as a   result   of   this  paragraph  shall  conform  with  all  applicable requirements,  including  but  not  limited  to  demonstrating  to   the department's  satisfaction  continuity of care for individuals receiving services from the agency.  (viii) The commissioner may require managed long term  care  plans  to provide evidence of compliance with this paragraph, on an annual basis.  (ix)   In   implementing   the   provisions  of  this  paragraph,  the commissioner shall, to  the  extent  practicable,  consider  and  select methodologies  that  seek  to  maximize  continuity of care and minimize disruption to the provider labor workforce, and  shall,  to  the  extent practicable and consistent with the ratios set forth herein, continue to support contracts between managed long term care plans and licensed home care  services  agencies  that  are based on a commitment to quality and value.  (x) This subparagraph applies where implementation of  the  limits  on contracts with licensed home care service agencies of this paragraph (i) would  otherwise  require  an enrollee's care to be transferred from the enrollee's current licensed home care service agency to another licensed care service agency, and (ii) the enrollee (or the enrollee's authorized representative) wants the enrollee to continue to be cared for by one or more employees of the current licensed home  care  service  agency,  and that  continuation  would  otherwise  be  provided.  In such a case: the enrollee's managed long term care plan may contract with the  enrollee's current  licensed home care service agency for the purpose of continuing the enrollee's care by such employee  or  employees,  and  the  contract shall not count towards the limits on contracts under this paragraph for a period of three months.  (k)  Increased  rates, terms or scope of payment for behavioral health services under this section, where payment is made by  an  entity  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 entity. Where  payment  is not  made  as  of  the effective date, the entity shall make retroactive payments to the appropriate service providers.   8. Payment rates for managed long term care  plan  enrollees  eligible for  medical  assistance. The commissioner shall establish payment rates  for services provided to enrollees  eligible  under  title  XIX  of  the federal  social  security  act.  Such  payment rates shall be subject to approval by the director of the division of the budget and shall reflect savings to both state and local governments when compared to costs which would  be  incurred  by  such  program  if  enrollees  were  to  receive comparable health and long term care services on a fee-for-service basis in the geographic region in which  such  services  are  proposed  to  be provided.  Payment rates shall be risk-adjusted to take into account the characteristics of enrollees, or proposed enrollees, including, but  not limited  to:    frailty, disability level, health and functional status, age, gender, the nature of services  provided  to  such  enrollees,  and other  factors  as  determined  by  the  commissioner. The risk adjusted premiums  may  also  be  combined  with  disincentives  or  requirements designed to mitigate any incentives to obtain higher payment categories. In  setting  such  payment  rates, the commissioner shall consider costs borne by the managed  care  program  to  ensure  actuarially  sound  and adequate  rates  of  payment to ensure quality of care shall comply with all applicable  laws  and  regulations,  state  and  federal,  including regulations as to actuarial soundness for medicaid managed care.   8-a.   Rates   for   certain   residential   health  care  facilities. Notwithstanding  any  other  provision  of  law  or  regulation  to  the contrary,  any  residential health care facility established pursuant to article twenty-eight  of  this  chapter  located  in  a  county  with  a population  of more than seventy-two thousand and less than seventy-five thousand persons based on the two thousand ten federal census  shall  be reimbursed by any managed long term care plan, approved pursuant to this section  and  contracting with the department, at a rate of no less than one hundred four  percent  of  the  average  rate  of  reimbursement  in existence on March first, two thousand eighteen for such county.   9.  Reports.  The  department  shall  provide an interim report to the governor, temporary president of the  senate  and  the  speaker  of  the assembly on or before April first, two thousand three and a final report on or before April first, two thousand six on the results of the managed long  term care plans under this section. Such results shall be based on data provided by the managed long term care plans and shall include  but not  be  limited  to  the  quality, accessibility and appropriateness of services; consumer satisfaction; the mean and distribution of impairment measures of the enrollees by payor for each plan; the current method  of calculating  premiums  and  the  cost of comparable health and long term care services provided on a fee-for-service basis for enrollees eligible for services under title XIX of the federal social security act; and the results of periodic reviews of enrollment  levels  and  practices.  Such reports   shall   provide   data   on   the   demographic  and  clinical characteristics of enrollees, voluntary and  involuntary  disenrollments from   plans,   and  utilization  of  services  and  shall  examine  the feasibility of increasing the number of plans that may be approved. Data collected pursuant to this section shall be available to the  public  in an  aggregated  format  to  protect  individual confidentiality, however under no circumstance will data be released on  items  with  cells  with smaller than statistically acceptable standards.   10.  Notwithstanding  any  inconsistent provision to the contrary, the enrollment and disenrollment process and services provided  or  arranged by all operating demonstrations or any program that receives designation as  a Program of All-Inclusive Care for the Elderly (PACE) as authorized by federal public law 105-33, subtitle I of title  IV  of  the  Balanced Budget  Act  of  1997,  must  meet  all applicable federal requirements. Services may include, but need not be limited to, housing, inpatient and outpatient hospital services, nursing home care, home health care, adult  day care, assisted living services provided in accordance  with  article forty-six-B  of  this  chapter,  adult  care facility services, enriched housing program services, hospice care,  respite  care,  personal  care, homemaker  services,  diagnostic  laboratory  services,  therapeutic and diagnostic radiologic  services,  emergency  services,  emergency  alarm systems,  home  delivered  meals,  physical  adaptations to the client's home, physician  care  (including  consultant  and  referral  services), ancillary   services,  case  management  services,  transportation,  and related medical services.   11. The department shall develop transition  and  continuity  of  care policies  for  participants  in home and community based long term care, including the long term home  health  care  program,  as  they  move  to managed long term care plans addressing:  (a)  a  timetable  and  plan  for  implementation  and  transition  by participants, plans and providers;  (b) informative disclosure of participants' options  as  to  impending actions affecting or relating to the home care services they receive;  (c)  reasonable  opportunity  for  plans'  and  providers'  good faith pursuit of contracts, program changes or  state  approvals  relevant  to plan implementation;  (d)  notice  that  a participant with a previously established plan of care provided by a certified home health agency or long term home health care program, or provided pursuant to  the  personal  care  or  consumer directed  personal  assistance  service programs, may elect to have such care plan continued subject  to  the  participant's  next  comprehensive assessment; and  (e)  delineation  of  responsibilities  for  service delivery and care coordination, so as  to  avoid  conflict,  duplication  and  unnecessary disruption  of  direct  care  staffing  for  the  patient,  and maintain compliance with state and federal statute and regulation, including  the provisions  of  this  section,  article  thirty-six  of this chapter and section three hundred sixty-five-f of the social services law.   In addition, the department shall provide technical assistance to long term home health care providers  with  contracting  options  under  this section.  The  department  shall  work with affected stakeholders in the development of these policies.   11-a. In transitioning individuals to  managed  long  term  care,  the department  shall  provide  oversight  of  long  term  managed  care  by ensuring:  (a) participants are appropriately notified of the upcoming changes to their health care, and their rights and options;  (b) access to appropriate enrollment assistance,  consumer  assistance and complaint mechanisms;  (c)  access  to  quality  care  by  requiring network transparency and choice of long term care plans, allowing patients  to  choose  the  plan that best fits their needs;  (d)  transparency  and  accountability  from  providers,  which  shall include a mechanism by which staff, participants and family members  can confidentially  report  concerns relating to quality to the plan and the state;  (e)  plans  and  providers  are  assessed  periodically  and  data  is published  regarding  enrollment  in  integrated  care  designs, network adequacy, new service designs, outcome measures, including the extent to which care plans are continued or altered based upon  new  comprehensive assessments,  and  the  types  and amounts of services health plans have authorized;  (f) mechanisms are in place  to  state  oversight  of  enrollment  and services  to  prevent  waste  and  abuse  in  the managed long term care system; and  (g) incentives are provided for a variety of indicators, including but not  limited  to,  smooth  patient  transitions, appropriate enrollment, quality care, high staff retention and  positive  health  care  outcomes achieved at a low cost.   11-b.  In  cases of a managed long term care plan merger, acquisition, or other similar arrangement approved by the department,  any  receiving plan  that  is  a  party to the arrangement shall submit a report to the department  within  twelve  months  of  the  effective   date   of   the transaction. Such reports shall be in a form and format to be determined by  the department and shall include, but not be limited to, information about the enrollees transferred and enrollee service authorization  data before  and  after  transfer. The department shall make a summary of the report available to the public.   ** 12. The  commissioner  may  make  any  necessary  amendments  to  a contract pursuant to this section with a managed long term care plan, as defined  in  paragraph  (a) of subdivision one of this section, to allow such managed long term care plan 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 12's   ** 12. Notwithstanding any provision to the contrary, a  managed  long term  care  plan  may expand the services it provides or arranges for to include services operated, certified, funded, authorized or approved  by the  office  for people with developmental disabilities for a population of persons with developmental disabilities, as such term is  defined  in the  mental  hygiene  law, including habiltiation services as defined in paragraph (c) of subdivision one of section forty-four  hundred  three-g of this article, subject to the following:  (a)  Such plan must have the ability to provide or coordinate services for persons with developmental disabilities as demonstrated by  criteria to  be determined by the commissioner and the commissioner of the office for people with developmental disabilities. Such criteria shall include, but not be limited to, adequate  experience  providing  or  coordinating services for persons with developmental disabilities;  (a-1)  If  the  commissioner  and  the  commissioner of the office for people with developmental disabilities determine that  such  plan  lacks the  experience  required in paragraph (a) of this subdivision, the plan shall have an affiliation arrangement with an entity  or  entities  that are  non-profit  organizations  or  organizations whose shareholders are solely controlled by non-profit organizations  with  experience  serving persons  with developmental disabilities, as demonstrated by criteria to be determined by the commissioner and the commissioner of the office for people with developmental disabilities, with  such  criteria  including, but  not limited to, residential, day and employment services, such that the affiliated  entity  will  coordinate  and  plan  services  operated, certified,  funded, authorized or approved by the office for people with developmental disabilities or will oversee and approve such coordination and planning;  (a-2)  Each  enrollee  shall  receive  services  designed  to  achieve person-centered  outcomes,  to  enable  that  person to live in the most integrated setting appropriate to that person's  needs,  and  to  enable that  person  to interact with nondisabled persons to the fullest extent possible in social, workplace and  other  community  settings,  provided  that  all  such services are consistent with such person's wishes to the extent that such  wishes  are  known.  With  respect  to  an  individual receiving   non-residential   services   operated,   certified,  funded, authorized  or  approved  by  the  office  for people with developmental disabilities prior to enrollment in  the  plan,  such  guidelines  shall require  the  plan  to  contract  with  the  current  provider  of  such non-residential services at the rates  established  by  the  office  for ninety  days  in  order to ensure continuity of care. With respect to an individual living in a residential facility operated or certified by the office for people with developmental disabilities prior to enrollment in the plan, the plan shall  contract  with  the  provider  of  residential services  for  that residence at the rates established by the office for people with developmental disabilities for so long  as  such  individual lives in that residence pursuant to an approved plan of care;  (b)  The  provision  by  such  plan  of  services operated, certified, funded,  authorized  or  approved  by  the  office   for   people   with developmental  disabilities  shall  be  subject  the joint oversight and review  of  both  the  department  and  the  office  for   people   with developmental  disabilities.    The  department  and  such  office shall require such organization to provide comprehensive care planning, assess quality, meet quality assurance requirements and ensure the enrollee  is involved in care planning;  (c)  Such  plan  shall  not  provide or arrange for services operated, certified, funded, authorized or approved by the office for people  with developmental  disabilities  until the commissioner and the commissioner of the office for people with developmental disabilities approve program features and rates that include such services, and determine  that  such organization  meets  the  requirements of this subdivision and any other requirements set forth by the commissioner of the office for people with developmental disabilities;  (d) An otherwise eligible enrollee receiving services through the plan that are operated, certified, funded,  authorized  or  approved  by  the office   for   people  with  developmental  disabilities  shall  not  be involuntarily disenrolled from such plan without the prior  approval  of the   commissioner   of   the   office  for  people  with  developmental disabilities. Notice shall be provided to the enrollee and the  enrollee may request a fair hearing regarding such disenrollment;  (e)  The  office  for  people  with  developmental  disabilities shall determine the eligibility of individuals  receiving  services  operated, certified,  funded,  authorized  or approved by such office to enroll in such plan and shall enroll individuals it determines eligible in a  plan chosen by such individual, guardian or other legal representative;  (f)  The  office  for  people  with developmental disabilities, or its designee, shall complete a comprehensive assessment  for  enrollees  who receive  services operated, certified, funded, authorized or approved by such office. This assessment shall include, but not be  limited  to,  an evaluation  of the medical, social, habilitative and environmental needs of each prospective enrollee as such needs relate to  each  individual's health,  safety,  living environment and wishes, to the extent that such wishes are known. This assessment shall also serve as the basis for  the development  and  provision  of  an  appropriate  plan  of  care for the enrollee. Such plan of care shall  be  focused  on  the  achievement  of person-centered  outcomes  and  shall be consistent with and help inform any  other  person-centered  plan  required  for  the  enrollee  by  the commissioner  of  the office for people with developmental disabilities. The initial assessment shall be completed by such office or  a  designee other  than  the  plan  and  shall be completed in consultation with the prospective  enrollee's   health   care   practitioner   as   necessary.  Reassessments  shall  be completed by such office or its designee, which may be the managed long term care plan in which the person  is  enrolled or  proposes  to  enroll. The commissioner of the office for people with developmental  disabilities  shall  prescribe  the  forms  on  which the assessment shall be made.  (f-1) The plan shall provide the department and the office for  people with  developmental  disabilities  with  a  description  of the proposed marketing plan and how marketing materials will be presented to  persons with  developmental disabilities or their authorized decision makers for the purposes of enabling them to make an informed choice.  (g) Plans providing services operated, certified,  funded,  authorized or  approved  by  the  office for people with developmental disabilities shall be subject to all  requirements  applicable  to  DISCOs  operating under section forty-four hundred three-g of this article with respect to quality    assurance,   grievances   and   appeals,   informed   choice, participation in development of plans  of  care  and  requirements  with respect  to  marketing,  to  the  extent  that such requirements are not inconsistent with this section.  (h) No person with a developmental disability  shall  be  required  to enroll  in  a  managed  long  term care plan as a condition of receiving medical assistance and services operated, certified, funded,  authorized or  approved  by  the  office for people with developmental disabilities until program features and  reimbursement  rates  are  approved  by  the commissioner  and  the  commissioner  of  the  office  for  people  with developmental disabilities and until such commissioners  determine  that there are a sufficient number of plans authorized to coordinate care for persons   with  developmental  disabilities  pursuant  to  this  article operating in the person's county of  residence  to  meet  the  needs  of persons  with  developmental  disabilities, and that such plans meet the standards of this section.   ** NB Repealed September 30, 2023   ** NB There are 2 sb 12's   ** 13. Notwithstanding any inconsistent provision to the contrary, the commissioner may issue a certificate of authority to no more than  three eligible applicants who are eligible for Medicare and medical assistance to  operate  managed  long  term  care  plans  that  are  authorized  to exclusively enroll persons with developmental disabilities, as such term is defined in section 1.03 of the mental hygiene law.  The  commissioner may  only  issue  certificates of authority pursuant to this subdivision if, and to the extent that, the department has received federal approval to  operate  a  fully  integrated  duals  advantage  program   for   the integration  of  services  for  persons enrolled in Medicare and medical assistance.  The  commissioner  may  waive  any  of   the   department's regulations  as  the 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 services for persons with  developmental  disabilities  that are  adequate  and appropriate to meet the needs of such individuals and that will ensure their health and safety.   ** NB Repealed September 30, 2023   ** 14. The provisions of subdivisions  twelve  and  thirteen  of  this section  shall  only  be effective if, for so long as, and to the extent that federal financial participation  is  available  for  the  costs  of services   provided  thereunder  to  recipients  of  medical  assistance pursuant to title eleven of article five of the social services law. The commissioner shall make any necessary amendments to the state  plan  for medical   assistance   submitted   pursuant  to  section  three  hundred sixty-three-a of the social services law,  and/or  submit  one  or  more  applications  for  waivers of the federal social security act, as may be necessary to ensure such federal financial participation. To the  extent that  the  provisions of subdivision twelve and thirteen of this section are  inconsistent  with  other  provisions  of  this article or with the provisions of section three hundred sixty-four-j of the social  services law, the provisions of this subdivision shall prevail.   ** NB Repealed September 30, 2023   * NB Repealed December 31, 2024