2023 New York Laws › PBH - Public Health › Article 44 - Health Maintenance Organizations › 4403-C - Comprehensive HIV Special Needs Plan Certification.

* §  4403-c. Comprehensive HIV special needs plan certification. 1. No
person or group of persons may operate a comprehensive HIV special needs
plan without  first  obtaining  a  certificate  of  authority  from  the
commissioner. Any person may apply for a comprehensive HIV special needs
certificate  of  authority,  provided,  however,  that  a  shared health
facility, as defined in article forty-seven of this chapter,  shall  not
be eligible for such a certificate.
2.   An   applicant  for  certification  shall  submit  the  following
information and documentation to the satisfaction of the commissioner:
(a) a copy of  the  applicant's  basic  organizational  documents  and
agreements  of  the  applicant  and  all  network members, including all
contracts and agreements relating to the provision of HIV services;
(b) a copy of any current licensure or certification maintained by the
applicant;
(c) a description of any experience the  applicant  may  have  had  in
providing HIV services which are licensed, certified, funded or approved
by   the  department,  including  identification  of  any  disciplinary,
administrative or criminal proceedings related to such services  in  the
past  ten  years,  the  resolution  thereof,  and  any other proceedings
currently pending;
(d) full disclosure of the financial condition of the applicant and of
members  of  the  board,  officers,  controlling  persons,  owners   and
partners,  including, but not limited to, a statement of the applicant's
assets, resources, accounts receivable, liabilities and proposed sources
and uses of funds and the most recent  certified  income  statement  and
balance sheet;
(e)  a demonstration of the applicant's ability to provide or continue
to provide quality HIV services;
(f) a description of the geographic area served and to  be  served  by
the applicant;
(g)  a  description  of the applicant's current capacity, and proposed
capacity, to provide or arrange for the provision of  comprehensive  HIV
services for a defined geographic area to a defined population; and
(h) such other information as the commissioner shall require.
3.  The commissioner shall not issue a comprehensive HIV special needs
plan certificate of  authority  to  an  applicant  therefor  unless  the
applicant demonstrates that:
(a)  it  has defined an enrolled population to which the comprehensive
HIV special needs plan proposes  to  provide  comprehensive  HIV  health
services,  has  demonstrated  a  willingness to enroll any person who is
eligible for enrollment  within  its  defined  catchment  area  and  has
established a mechanism by which the enrolled population may participate
in determining the policies of the organization;
(b) it has defined a specific network of providers and facilities that
are capable of providing comprehensive HIV special needs services to the
enrolled population described in paragraph (a) of this subdivision;
(c)   it  has  the  capability  of  organizing,  marketing,  managing,
promoting and operating a comprehensive HIV special needs plan;
(d) it is financially responsible and sound and  may  be  expected  to
meet  its  obligations to its enrolled members. For the purposes of this
paragraph, "financially responsible" means that the applicant is capable
of assuming full financial risk on a prospective basis for the provision
of comprehensive  HIV  special  needs  services  within  the  geographic
catchment  area  defined  by  the  applicant  except  that  it may allow
providers to share financial risk under the terms of their contract,  or
it  may  obtain  insurance  or  make  other arrangements for the cost of
providing comprehensive HIV special needs health services to  enrollees;
any  insurance  or  other arrangements proposed to meet this requirement

shall be approved as to adequacy as a prerequisite to  the  issuance  of
any  comprehensive  HIV  special  needs  certificate of authority by the
commissioner. In making a  determination  of  financial  soundness,  the
commissioner   shall   consider  financial  information,  contracts  and
agreements required as part of the  application  for  a  certificate  of
authority  and  any  other  information that the commissioner shall deem
necessary to make that determination. For purposes of this section,  any
grants  awarded  to  an  applicant contingent upon its approval as a HIV
special  needs  plan  certified  pursuant  to  this  section,  shall  be
considered when making a determination of fiscal soundness;
(e) it has established a system which appropriately accounts for costs
and  a  uniform system of reports and audits meeting the requirements of
the commissioner;
(f) the character, competence and standing in  the  community  of  the
proposed  incorporators,  directors,  sponsors,  or  stockholders of the
plan, and its network providers, are satisfactory to the commissioner;
(g) it is willing and able to assure that necessary HIV services  will
be   provided  in  a  timely  manner  to  assure  the  availability  and
accessibility of adequate personnel and facilities; to assure continuity
of care for enrollees; and to implement  procedures  for  referrals,  as
requested,  to  appropriate  care  for  affected  family  members of the
enrolled population;
(h) the prepayment mechanism of its comprehensive  HIV  special  needs
plan, the bases upon which the providers of health care are compensated,
and  the anticipated use of allied health personnel are conducive to the
use of ambulatory care and the efficient use of hospital services;
(i) acceptable procedures have been established  for  the  conduct  of
outreach  and enrollment of persons with HIV infection including persons
who are homeless, substance users and other vulnerable populations;
(j) acceptable procedures have  been  developed  to  communicate  with
participants in a linguistically and culturally competent manner;
(k) acceptable procedures have been established to monitor the quality
of  care provided by the plan and to assure that all care rendered meets
clinical standards of HIV care as established and maintained by the AIDS
Institute of the New York state department of health;
(l) approved mechanisms exist to  resolve  complaints  and  grievances
initiated by any enrolled member; and
(m)  the  requirements of this article and any regulations promulgated
pursuant thereto have been met and will continue to be met.
4. The commissioner shall not issue a comprehensive HIV special  needs
certificate  of  authority  unless the applicant has demonstrated to the
commissioner's satisfaction that the requirements of  this  article  and
any  regulations  promulgated  pursuant  thereto  have been met and will
continue to be met, provided, however, that the commissioner may  impose
alternative   requirements,  or  portions  thereof,  particularly  those
related to capitalization, if he or she determines that such alternative
requirements will serve to promote the high quality, efficient provision
of comprehensive health services or services required  by  HIV  positive
persons,  will  promote  the  development of HIV special needs plans and
that the proposed plan will provide an  appropriate  and  cost-effective
alternative  method  for the delivery of such services in a manner which
will meet the needs of the population to be served.
5. The commissioner shall make a determination on an application after
receipt of all required and requested information and documentation.
6. The commissioner shall review and approve any current  or  proposed
contracts or agreements with current or prospective network members, and
provided  further,  that  the commissioner shall specifically review and
approve any proposed provisions in such contracts or agreements with the

prospective or existing network members which specify any  risk  sharing
arrangements.
7.  The  commissioner  may  revoke, limit or annul a comprehensive HIV
special needs plan certificate  of  authority  in  accordance  with  the
provisions of section forty-four hundred four of this article.
8.  A comprehensive HIV special needs plan, certified pursuant to this
section, shall be responsible for providing or arranging for all medical
assistance services defined under section three hundred sixty-five-a  of
the  social  services law, including delivery of a comprehensive benefit
package, which shall include early and  periodic  screening;  adolescent
health;  diagnosis  and  treatment  and  child/teen  health  screenings;
referrals  for  necessary  services;  linkages  to  HIV  counseling  and
testing;  and  HIV  prevention and education activities. A comprehensive
HIV special needs plan  provider  shall  be  responsible  for  assisting
enrollees  in  the  prudent selection of such services including but not
limited to:
(a) referral, coordination, monitoring and follow-up  with  regard  to
other  medical  services  providers,  as  appropriate  for diagnosis and
treatment, or direct provision of all medical assistance services;
(b) methods  of  assuring  enrollees'  access  to  specialty  services
outside the comprehensive HIV special needs plan's network or panel when
the  plan  does  not  have  a provider with the appropriate training and
experience in its network to meet the particular health  care  needs  of
the participant;
(c)   the   establishment  of  appropriate  utilization  and  referral
requirements for  physicians,  hospitals,  and  other  medical  services
providers, including emergency room visits and inpatient admissions;
(d)  the  creation  of  mechanisms  to ensure the participation of HIV
centers of excellence and community-based HIV care providers;
(e)  implementation  of  procedures  for  managing  the  care  of  all
participants,  including  the  use  of facility and community-based case
managers with expertise in the care needs of persons with HIV infection,
and the designation of a specialist as a primary care practitioner;
(f) development of appropriate methods of managing the HIV care  needs
of  homeless,  substance users and other vulnerable populations, who are
enrolled in the comprehensive HIV special needs plan, to assure that all
necessary services are made available in a timely manner, in  accordance
with prevailing standards of professional medical practice, and that all
appropriate referrals and follow-up treatments are provided;
(g) provision of all early periodic screening, diagnosis and treatment
services,   as   well  as  periodic  screening  and  referral,  to  each
participant under the age of twenty-one, at  regular  intervals  and  as
medically appropriate;
(h)   direct   provision  of  or  arrangement  for  the  provision  of
comprehensive prenatal care services to  all  pregnant  participants  in
accordance  with  standards adopted by the department of health and with
statute and regulations governing HIV  testing  of  pregnant  women  and
newborns;
(i)  implementation  of  procedures  for written agreements, which may
include contractual  agreements,  with  community-based  social  service
providers  to  ensure access to the full continuum of services needed by
HIV infected persons; and
(j)  permit  the  use  of  standing  referrals  to   specialists   and
subspecialists   for   participants   who   require  the  care  of  such
practitioners on a regular basis.
9. Notwithstanding any other provision of  law,  a  comprehensive  HIV
special  needs  plan  certified  pursuant  to  this  section shall limit

enrollment to HIV positive persons, except for the following persons who
may be enrolled regardless of their HIV status:
(a) related children up to the age of twenty-one; and
(b) individuals who are homeless or who are members of other high need
populations  which, in the discretion of the commissioner, would benefit
from receiving services  through  a  plan  certified  pursuant  to  this
section;  provided  however,  that rates paid to special needs plans for
such populations  shall  be  comparable  to  rates  paid  for  the  same
populations in other managed care plans.
10.  Enrollment  and  disenrollment. (a) Enrollment in a comprehensive
HIV special needs plan shall  be  voluntary  and  persons  eligible  for
enrollment  in  such  plans  shall be afforded the opportunity to choose
among such plans, to the extent available  in  the  locality  where  the
person  currently  resides;  provided  however  that  enrollment  may be
automatic after federal approval of a waiver or waivers or other federal
action  required  to  institute  automatic   enrollment,   pursuant   to
applicable  provisions  of  the  federal  social  security act, and that
persons automatically enrolled in a comprehensive HIV special needs plan
shall have the opportunity to withdraw from such plan in accordance with
paragraph (g) of subdivision four, paragragh (b)  of  subdivision  three
and  subdivision  twelve  of  section  three hundred sixty-four-j of the
social services law. The department shall ensure to the  maximum  extent
practicable that individuals are provided with a choice of comprehensive
HIV special needs plans.
(b)   The   commissioner  shall  promulgate  regulations  establishing
criteria which relate to enrollment and disenrollment  of  enrollees  in
comprehensive  HIV  special needs plans. Comprehensive HIV special needs
plans shall not request  disenrollment  of  an  enrollee  based  on  any
diagnosis,  condition,  or  perceived  diagnosis  or  condition,  or  an
enrollee's efforts to exercise his  or  her  rights  under  a  grievance
process.
(c)  Prior  to  enrollment  in  a comprehensive HIV special needs plan
individuals are to be provided with a full written  explanation  of  all
fee-for-service  and other options and given a reasonable opportunity to
choose between the comprehensive HIV special needs plan  and  the  other
options.  In addition, enrollees shall be provided notice of their right
to disenroll from  the  plan,  except  as  otherwise  provided  in  this
subdivision.
(d)  If  an enrollee requests to change a provider or disenroll from a
comprehensive HIV special needs plan pursuant to this  subdivision,  the
social  services  district and the plan shall implement such change in a
timely  manner  in  accordance  with  standards   established   by   the
commissioner.  When  an enrollee changes comprehensive HIV special needs
plan providers the plan must  effectuate  the  timely  transfer  of  all
necessary medical records.
(e)  Plans  shall  ensure  that  any  new  enrollee  whose health care
provider is not a member of the plan's provider network, who enrolls  in
the  plan,  can  continue  with  an ongoing course of treatment with the
enrollee's current health care provider during a transitional period  of
up  to  sixty days from the effective date of enrollment. If an enrollee
elects to continue to  receive  care  from  such  health  care  provider
pursuant  to  this  paragraph,  such  care  shall  be  authorized by the
comprehensive HIV special needs plan for the transitional period only if
the health care provider agrees: (1) to accept  reimbursement  from  the
comprehensive HIV special needs plan at rates established by the plan as
payment  in  full,  which  rates  shall  be  no  more  than the level of
reimbursement applicable to similar providers within the plan's  network
for  such  services;  (2)  to  adhere  to  the  plan's quality assurance

requirements and agrees to provide to the  plan  any  necessary  medical
information  related  to  such  care; and (3) to otherwise adhere to the
plan's policies and procedures including, but not limited to  procedures
regarding referrals and obtaining pre-authorization and a treatment plan
approved  by the comprehensive HIV special needs plan. In no event shall
this paragraph be construed to require a comprehensive HIV special needs
plan to provide coverage for benefits not otherwise covered;
(f) Comprehensive HIV special needs plans shall ensure that for  those
enrollees  whose  health  care  provider  leaves  the  comprehensive HIV
special needs  plan's  network  of  providers,  the  enrollee  shall  be
permitted  to  continue an ongoing course of treatment with such current
health care provider during a transitional period of up to  ninety  days
from the date of notice to the enrollee of the provider's disaffiliation
from  the  plan's  network. If an enrollee elects to continue to receive
care from such health care provider pursuant  to  this  paragraph,  such
care shall be authorized by the comprehensive HIV special needs plan for
the  transitional period only if the health care provider agrees: (1) to
accept reimbursement from the comprehensive HIV special  needs  plan  at
rates  established  by the plan as payment in full, which rates shall be
no more than the level of reimbursement applicable to similar  providers
within  the  plan's  network  for  such  services;  (2) to adhere to the
organization's quality assurance requirements and agrees to  provide  to
the plan any necessary medical information related to such care; and (3)
to otherwise adhere to the plan's policies and procedures including, but
not   limited   to   procedures   regarding   referrals   and  obtaining
pre-authorization and a treatment plan approved by the comprehensive HIV
special needs plan. In no event shall this  paragraph  be  construed  to
require  a  comprehensive HIV special needs plan to provide coverage for
benefits not otherwise covered;
11. The commissioner shall develop and certify capitated payment rates
for comprehensive HIV special needs plans, subject to  the  approval  of
the  director  of  the  division of the budget. In developing capitation
rates the commissioner shall be authorized to consider,  at  a  minimum,
the  age, eligibility category, historic cost and utilization of covered
enrollees and  covered  services,  anticipated  costs  of  emerging  HIV
treatment modalities and the expected impact of delivering services in a
managed care environment.
12.  Plans  certified under this section must submit financial reports
in a manner and frequency established by the commissioner.
13. The department shall establish a stop-loss reinsurance program for
comprehensive HIV special needs plans. The stop-loss reinsurance program
shall be designed in a manner which promotes the development and ongoing
financial viability of the  comprehensive  HIV  special  needs  plan  by
providing  reasonable  protection  for  catastrophic  cases  and adverse
selection.
14. Quality assurance. (a) The department  shall  be  responsible  for
establishing a comprehensive quality assurance program for comprehensive
HIV  special  needs  plans. This quality assurance program shall reflect
clinical standards of HIV care established and maintained  by  the  AIDS
Institute   in   the   department.  The  department  shall  monitor  the
performance, quality and utilization of such plans on at least an annual
basis. Such plans must describe and document the existence of a  formal,
organized  quality  assurance  program  with  the  capacity to identify,
address and follow-up on issues which  concern  the  care  and  services
delivered  to enrollees. Such reviews are to include, but not be limited
to, the following:
(1) compliance with performance and  outcome-based  quality  standards
promulgated by the department;
(2)  appropriateness,  accessibility,  timeliness, and quality of care
delivered by such providers;
(3)  referrals,  coordination, monitoring and follow-up with regard to
other medical service providers;
(4) methods of ensuring enrollees access to specialty services outside
the plan's network or panel when the plan does not have a provider  with
the  appropriate training and experience in the network or panel to meet
the particular HIV care needs of the participant;
(5) delivery of a comprehensive benefit package, including  early  and
periodic  screening;  adolescent  health;  diagnosis  and  treatment and
child/teen health screenings;  referrals  for  necessary  services,  and
linkages  to  HIV  counseling  and testing; HIV prevention and education
activities;
(6) mechanisms for the provision of all information  to  enrollees  in
clear  and  coherent  terms  that  are commonly used in a culturally and
linguistically appropriate and understandable manner;
(7) existence of a management information system  to  support  quality
assurance  activities, which system shall provide for the collection and
utilization of data including but not limited to enrollment, complaints,
encounters and specific performance indicators; and
(b) the commissioner shall have access  to  patient  specific  medical
information  and  enrollee  medical  records,  including encounter data,
maintained by a comprehensive HIV special needs plan for the purposes of
quality assurance and oversight.
(c)  The  department  shall  be  responsible  for   establishing   and
maintaining  a uniform system of reports relating to the quality of care
and services furnished by comprehensive HIV special needs plans.
15. The commissioner may revoke, limit or annul  a  comprehensive  HIV
special needs certificate of authority in accordance with the provisions
of section forty-four hundred four of this article.
16.   Confidentiality.   Except   as  provided  in  paragraph  (c)  of
subdivision  fourteen  of  this  section,   any   enrollee   information
maintained  by  a  comprehensive  HIV  special  needs plan shall be kept
confidential in accordance with section forty-four  hundred  eight-a  of
this  article  and  where applicable section 33.13 of the mental hygiene
law and any other applicable state or federal law.
17.  Utilization  review.  A  comprehensive  HIV  special  needs  plan
authorized under this section is required to meet requirements set forth
in article forty-nine of this chapter.
18.  Disclosure.  Each  enrollee  and  prospective  enrollee  prior to
enrollment in a comprehensive HIV special needs plan shall  be  provided
with written disclosure information related to enrollee benefits, rights
and  obligations  pursuant  to  section forty-four hundred eight of this
article.
19.  Grievance  procedure.  Comprehensive  HIV  special  needs   plans
authorized  under  this  section  shall  be  required  to meet grievance
procedures requirements pursuant to section forty-four  hundred  eight-a
of this article.
20.  Prohibitions.  A  comprehensive HIV special needs plan authorized
under this section shall be required to meet the requirements set  forth
in section forty-four hundred six-c of this article.
21.  The  commissioner  is  authorized, subject to the approval of the
director of the division of the budget, and within amounts appropriated,
to make grants to those entities  seeking  certification  to  operate  a
comprehensive  HIV  special  needs plan to aid in the development of the
systems, organizational structures and networks necessary to  operate  a
managed care program. The commissioner is authorized to develop criteria
for  distribution of the grants. The grants may also be used to meet the

capitalization standards and the reserve and escrow deposit requirements
established for comprehensive HIV special needs plans.
22.  Comprehensive  HIV  special needs plans shall function distinctly
from other comprehensive or non-comprehensive health plans  operated  by
the  same organization, corporation, persons, county or municipality and
shall be clearly distinguished from  any  other  functions  through  the
maintenance   of   separate   records,  reports  and  accounts  for  the
comprehensive HIV special needs plan function.
23. The  commissioner  shall  establish  reserve  and  escrow  deposit
requirements for HIV special needs plans.
24.  Nothing  in  this  section  shall  be construed to require that a
health maintenance organization, certified pursuant to the provisions of
this  article,  apply  for  a  comprehensive  HIV  special  needs   plan
certificate  of  authority  pursuant to this section; provided, however,
that a  health  maintenance  organization,  certified  pursuant  to  the
provisions  of  this  article, which proposes to operate a comprehensive
HIV special needs  plan  shall  be  required  to  comply  with  all  the
provisions of this section.
* NB Repealed March 31, 2030