2023 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,   the
commissioner  may  award  a  temporary  adjustment  to  the  non-capital
components of rates, or make temporary  lump-sum  Medicaid  payments  to
eligible  facilities  with  serious  financial instability and requiring
extraordinary financial assistance to enable such facilities to maintain
operations and vital services while such facilities establish long  term
solutions to achieve sustainable health services. Provided, however, the
commissioner  is  authorized to make such a temporary adjustment or make
such  temporary  lump  sum  payment  only  pursuant  to   criteria,   an
application, and an evaluation process acceptable to the commissioner in
consultation  with  the  director  of  the  division  of the budget. The
department shall publish on its website the criteria,  application,  and
evaluation process and notification of any award recipients.
(i) Eligible facilities shall include:
(A)  a  public hospital, which for purposes of this subdivision, shall
mean a general hospital operated by a county, municipality or  a  public
benefit corporation;
(B) a federally designated critical access hospital;
(C) a federally designated sole community hospital;
(D) a residential health care facility;
(E)  a  general  hospital  that  is  a  safety net hospital, which for
purpose 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; or
(3) such hospital that, in the discretion of the commissioner,  serves
a  significant  population  of  Medicaid eligible individuals, uninsured
individuals or Medicaid dually-eligible individuals; or
(F)  an  independent  practice   association   or   accountable   care
organization authorized under applicable regulations that participate in
managed  care  provider  network  arrangements  with any of the provider
types in subparagraphs (A) through (F) of this paragraph; or  an  entity
that  was formed as a preferred provider system pursuant to the delivery
system reform incentive payment (DSRIP) program and collaborated with an
independent practice association that received VBP innovator status from
the department for purposes of meeting DSRIP goals, and which  preferred
provider system remains operational as an integrated care system.
(ii)  Eligible  applicants  must  demonstrate that without such award,
they will be in serious financial instability, 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) Eligible applicants shall submit a completed  application  to  the
department.
(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 determine:
(1) applicant eligibility;
(2) each applicant's projected financial status;
(3)  criteria  or  requirements  upon which an award of funds shall be
conditioned, such as a transformation  plan,  savings  plan  or  quality
improvement  plan.  In the event the department requires an applicant to
enter into an agreement or contract with a  vendor  or  contractor,  the
department shall approve the selected vendor or contractor but shall not
specify the vendor or contractor that the applicant must utilize; 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
may 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; or
(B) bankruptcy-related costs.
(v) Payments made to awardees pursuant to this  subdivision  that  are
made  on a monthly basis 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.