Amends the public health law to add a new article in relation to establishing the neurological impairment program providing the exclusive remedy for compensation of neurologically-impaired persons born in New York on or after January 1, 2011.
STATE OF NEW YORK
________________________________________________________________________
6801
IN SENATE
February 8, 2010
___________
Introduced by Sens. HANNON, LARKIN, VOLKER -- read twice and ordered
printed, and when printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to establishing the
neurological impairment program to provide compensation of neurologi-
cally-impaired persons
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The public health law is amended by adding a new article
2 49-A to read as follows:
3 ARTICLE 49-A
4 NEUROLOGICAL IMPAIRMENT PROGRAM OF NEW YORK STATE
5 Section 4920. Definitions.
6 4921. Exclusiveness of remedy.
7 4922. The neurological impairment program of New York state.
8 4923. Neurological impairment trust fund.
9 4924. Filing of claims.
10 4925. Case management program.
11 4926. Determination of eligibility.
12 4927. Appeals of determination of eligibility.
13 4928. Compensation.
14 4929. Limitation on processing of claims.
15 4930. Notice to obstetric patients.
16 4931. New York state standard of care assessment program.
17 § 4920. Definitions. When used in this article, the following terms
18 shall have the following meanings:
19 1. "Case management" means case management services furnished in
20 accordance with the neurological impairment program of New York state
21 and which assist all eligible impaired persons to access necessary case
22 management services in accordance with goals contained in a written case
23 management plan.
24 2. "Case management services" means services which will assist eligi-
25 ble impaired persons in obtaining needed medical, social, psychosocial,
26 educational and any other services deemed necessary. Such services
27 enhance the quality of life for eligible impaired persons and assist
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15423-01-0
S. 6801 2
1 such persons and their parent, guardian or caretaker in navigating the
2 program's benefits as well as in accessing any such services necessary
3 and appropriate to the eligible impaired persons level of impairment and
4 need.
5 3. "Claimant" means a person who files a claim pursuant to this arti-
6 cle on behalf of an impaired person for compensation, and includes an
7 authorized legal representative filing a claim on behalf of an impaired
8 person.
9 4. "Compensation" means benefits provided to or on behalf of an
10 impaired newborn or person pursuant to this article.
11 5. "Healthcare provider" means a hospital, a health care organization
12 established pursuant to article forty-four of this chapter, a licensed
13 physician, a licensed midwife, a registered professional nurse or a
14 licensed practical nurse.
15 6. "Hospital" means a hospital established pursuant to article twen-
16 ty-eight of this chapter. For the purposes of any claim filed under this
17 article, a hospital shall include the trustees, directors, officers,
18 employees and agents of the hospital.
19 7. "Impaired person" means a newborn or child who has a neurological
20 motor impairment.
21 8. "Neurological impairment trust fund" or "trust fund" means the
22 trust fund established pursuant to section forty-nine hundred twenty-
23 three of this article.
24 9. "Neurological motor impairment" or "impairment" means a substan-
25 tial, non-progressive motor deficit, occurring in a child of thirty-four
26 or more weeks gestational age, that may have originated during
27 gestation, labor, delivery, or within twenty-eight days of delivery or
28 before discharge of the newborn, whichever occurred sooner; provided
29 that impairments due to genetic or metabolic conditions are excluded.
30 10. "Nurse practitioner" means a registered professional nurse certi-
31 fied as a nurse practitioner under article one hundred thirty-nine of
32 the education law.
33 11. "Participating physician" or "physician" means a physician
34 licensed to practice medicine in this state. For purposes of any claim
35 filed under this article, "physician" shall also include the employees
36 and agents of the physician and any physician-operated professional
37 corporation.
38 12. "Physician assessor" means an experienced, board certified physi-
39 cian certified by a board recognized by the American Board of Medical
40 Specialties who, within two years of the claim, was in active medical
41 practice or devoted a substantial portion of his or her time to teaching
42 at an accredited medical school, or was engaged in university-based
43 research in relation to the medical care and type of treatment at issue,
44 who is approved by his or her specialty society, and who is contracted
45 by the program to perform level I or level II assessments of the stand-
46 ard of care.
47 13. "Physician expert" means a child neurologist or developmental
48 pediatrician certified in the same specialty by a board recognized by
49 the American Board of Medical Specialties who, within two years of the
50 claim, was in active medical practice or devoted a substantial portion
51 of his or her time to teaching at an accredited medical school, or
52 engaged in university-based research in relation to the medical care and
53 type of treatment at issue, who is approved by his or her specialty
54 society, and who is contracted by the program to physically examine and
55 determine whether the impaired person has a neurological motor impair-
56 ment that qualifies for eligibility in the program.
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1 14. "Program" means the neurological impairment program of New York
2 state established in section forty-nine hundred twenty-two of this arti-
3 cle.
4 § 4921. Exclusiveness of remedy. 1. Recovery of compensation pursuant
5 to this article for neurological impairment sustained by an impaired
6 person as a result of health care services rendered by a health care
7 provider at a hospital, whether resulting in death or not, shall be the
8 exclusive remedy against a health care provider or hospital, or any
9 officer, agent or employee of the provider or hospital. Except as
10 provided for by this article, a covered health care provider or hospi-
11 tal, or any officer, agent or employee of said provider or hospital,
12 shall not be subject to any liability for the injury, disability or
13 death of an impaired person; and all causes of action, including actions
14 at lawsuits, in equity, proceedings, and statutory and common law rights
15 and remedies for and on account of said injury, disability or death are
16 abolished except as provided for in this article.
17 2. If any claim is filed in any court or other forum by or on behalf
18 of any child alleging neurological impairment as a result of medical
19 malpractice by a health care provider or providers, the court or forum
20 shall, if requested by the health care provider or providers, refer the
21 case to the program for a determination of eligibility and shall stay
22 all proceedings pending a determination of eligibility by the program.
23 3. The determination of eligibility as determined pursuant to sections
24 forty-nine hundred twenty-six and forty-nine hundred twenty-seven of
25 this article shall be binding upon the impaired person, and upon his or
26 her parents, next of kin, agent, proxy, executor, guardian or any other
27 person or entity claiming compensation as a result of impairment under
28 this article as provided pursuant thereto. The provisions of this arti-
29 cle shall apply to all persons, regardless of minority or legal disabil-
30 ity.
31 4. Nothing in this section shall be construed to preclude or impair
32 any action by an appropriate agency or civil authority to impose upon a
33 health care provider or participating hospital criminal penalties,
34 licensure restrictions, or other sanctions for violation of law or regu-
35 lations.
36 § 4922. The neurological impairment program of New York state. 1.
37 There is hereby established within the department, the neurological
38 impairment program of New York state.
39 2. The program shall employ permanent staff.
40 3. The director of the program shall be appointed by the governor with
41 the advice and consent of the senate and assembly.
42 4. No civil action shall be brought in any court against any employee
43 or person engaged by the program for any act done, failure to act, or
44 statement or opinion made, within the scope of his or her duties as an
45 employee of such program.
46 5. Powers and duties of the program. The program shall have the
47 following powers and duties:
48 (a) to screen out persons who could not be eligible for the program
49 and to refer all cases that could be eligible to a physician expert for
50 determination of eligibility;
51 (b) to accept and collect all eligible claims for care filed with the
52 program pursuant to this article and to reinvestigate or reopen claims
53 as the program deems necessary, including upon the filing of a petition
54 for additional compensation;
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1 (c) to solicit, through contract or otherwise, physician experts to
2 determine eligibility for the program and to maintain a list of such
3 physician experts;
4 (d) to make referrals of all potentially eligible claims to one such
5 physician expert for evaluation and determination of eligibility as
6 determined by the definition of impairment;
7 (e) to establish a database of all claims that have been determined
8 eligible for compensation, and summaries of all eligible persons for an
9 assessment of the standard of care;
10 (f) for each claimant determined to be eligible prior to the claim-
11 ant's second birthday, to reevaluate each such claimant at age two years
12 to determine whether the child remains eligible for compensation and
13 services. Reevaluations shall be performed by a physician expert. Such
14 reevaluation will permit the early entry into the program of children
15 who appear to have substantial neurological motor impairment but for
16 whom, by the age of two years, that impairment no longer substantially
17 limits daily functions;
18 (g) to adopt, promulgate, amend and rescind rules and regulations to
19 carry out the provisions and purposes of this article, including rules
20 for the approval of attorney's fees for representation before the
21 program;
22 (h) to establish a list of conditions that meet the definition of
23 impairment and a list of those conditions which do not meet the defi-
24 nition of impairment and are excluded. Such list shall be revised when
25 appropriate. The program shall review the list at least annually and
26 shall make the list available to the public;
27 (i) to authorize the commissioner of taxation and finance and the
28 comptroller to make payments from the trust fund to provide compensation
29 pursuant to this article;
30 (j) to collect assessments, including any authorized assessments
31 remaining unpaid, for deposit in the trust fund in accordance with the
32 provisions of this article;
33 (k) to employ such employees as it may deem necessary and prescribe
34 their duties;
35 (l) to enter into any agreements and contracts as are necessary or
36 proper in the judgment of the program to administer the program, includ-
37 ing without limitation contracts with any article forty-three insurance
38 law plans and such other administrators as the program shall designate,
39 and agreements with health care providers, pediatricians, local govern-
40 ments and other public corporations, school districts and school
41 district committees, early intervention officials designated under title
42 II-A of article two of this chapter, and others, providing for distrib-
43 ution of materials and information concerning the benefits available
44 under the program, ensuring wide access to its benefits, and coordinat-
45 ing receipt of benefits and services available under other programs;
46 (m) to seek refunds and to take any legal action necessary to avoid or
47 recover the payment of improper claims or other funds it is owed;
48 (n) to grant extensions to the time limitations of this article in
49 exceptional cases;
50 (o) to prepare written information about the program's activities and
51 procedures and the benefits available to impaired persons under this
52 article;
53 (p) to encourage all pediatricians, family practitioners and hospitals
54 that provide pediatric care to provide the information referred to in
55 this article to the parents or guardians of their pediatric patients;
56 and
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1 (q) to have and exercise all powers necessary to effect any or all of
2 the purposes of this article.
3 § 4923. Neurological impairment trust fund. The program shall estab-
4 lish and maintain a trust fund, to be known as the "neurological impair-
5 ment trust fund", of which the program shall be the trustee. All reven-
6 ues collected by the program pursuant to this article shall be deposited
7 by the program into the trust fund and shall be available for use by the
8 program for its ordinary and necessary operations' expenses and for the
9 payment of compensation to impaired persons pursuant to the provisions
10 of this article. Funds and expenses for this program shall be derived
11 from funds appropriated as necessary to meet the requirements of this
12 article.
13 § 4924. Filing of claims. 1. A claim may be filed under this article
14 by either a claimant or by a health care provider by submitting a stand-
15 ardized claim form to the program, setting forth the following informa-
16 tion and attaching documentation where required:
17 (a) the name and address of the person or entity filing the claim; if
18 the claim is filed on behalf of an impaired person, the claimant shall
19 identify the child's legal representative and the basis for his or her
20 representation of the impaired person;
21 (b) the name, address and date of birth of the impaired newborn or
22 child and the name and address of his or her parents and any legal
23 representatives;
24 (c) the name and address of any physician, midwife or nurse practi-
25 tioner who participated in the management of the labor and/or delivery
26 and care of the impaired newborn, the name of the hospital in which the
27 delivery and/or neonatal management occurred and the name of any other
28 physician or nurse practitioner who is providing or has provided care
29 for the impaired child;
30 (d) the names and addresses of any physician, midwife or nurse practi-
31 tioner who participated in the management of care for the impaired
32 person, the names of the hospitals in which any care was provided, and
33 the name of any other physician or nurse practitioner who is providing
34 or has provided care for the impaired person;
35 (e) a description of the impairment for which the claim is made and
36 the applicable diagnosis or etiology of the impairment;
37 (f) the time and place the impairment was thought to have occurred;
38 (g) a statement of the circumstances surrounding the impairment and
39 giving rise to the claim, including the role of any health care provider
40 associated with the impairment;
41 (h) a schedule, with documentation, of expenses and services incurred
42 to date, together with a description of any payment that has been made
43 for such services, and the identity of the payer; and
44 (i) a schedule, with documentation, of any source of reimbursement or
45 care, such as health insurance or a government program, which may
46 constitute an exclusion from compensation, as provided in this article.
47 2. A claimant or health care provider shall also provide the program,
48 at the time the petition is submitted, with the following materials and
49 information, to the extent available:
50 (a) all relevant medical records of the impaired person, and identifi-
51 cation of any unavailable records known to the claimant or health care
52 provider and the reasons for their unavailability; and
53 (b) all appropriate assessments, evaluations, diagnoses, determi-
54 nations of etiology and prognoses and such other records necessary for
55 the determination of the compensation to be paid to the impaired newborn
56 or child.
S. 6801 6
1 3. The claimant's failure to provide all of the information described
2 in subdivisions one and two of this section shall not deprive the
3 program of jurisdiction over the claim pending receipt by the program of
4 information sufficient to review the claim.
5 4. Notwithstanding any law to the contrary, the claimant and, upon the
6 submission of a petition, the program shall have the right to obtain all
7 relevant medical records of the impaired person, and upon a request by a
8 claimant or the program pursuant to this article, a health care provider
9 shall have the duty to provide for copying at no charge, all such
10 records within the provider's possession.
11 5. Upon receipt of a petition from a claimant, the program shall noti-
12 fy any health care provider identified in the petition and any physician
13 or hospital involved in the labor or delivery of the child who is not
14 identified in the petition. Upon receipt of a petition from a health
15 care provider, the program shall notify any parents or legal represen-
16 tatives identified in the petition and shall make reasonable efforts to
17 identify and notify any parent or legal representative who is not iden-
18 tified in the petition. Such physician, hospital, parent or legal repre-
19 sentative shall have forty-five days from the date of such notice to
20 submit any comments or other information relevant to the claim, and to
21 elect to be notified of any appeal held on the determination of eligi-
22 bility.
23 6. Before receiving the first claim, the program shall prepare and, as
24 appropriate, update a document describing the benefits available under
25 this article, the procedures for obtaining such benefits, and other
26 programs available to assist impaired persons. The program shall send
27 this document to all claimants and make it available to the public.
28 7. The program shall establish a claims assistance unit which shall
29 provide information to claimants about the program's activities and
30 procedures, a description of the eligibility process, the benefits
31 available to claimants and the requirements of this section, including
32 the physical examination of the infant which may be necessary to receive
33 compensation under the program. The program shall establish at least one
34 toll-free telephone number for centralized assistance, including answer-
35 ing questions and referral to local sources of assistance made available
36 under any contracts or agreements authorized pursuant to this article.
37 Any claimant who has filed a petition that the program finds does not
38 contain all information necessary to process the claim shall be referred
39 to the claims assistance unit for guidance.
40 8. A claim seeking additional compensation on behalf of an impaired
41 newborn or child for which compensation has already been awarded may be
42 filed on behalf of the impaired person at any point during the remainder
43 of his or her life. Such claim shall provide the following documentation
44 in addition to the information specified in subdivisions one and two of
45 this section:
46 (a) a statement and supporting documentation regarding the reason or
47 reasons why additional compensation is being sought;
48 (b) a schedule, with documentation, of expenses and services incurred
49 for the calendar year prior to the date of the petition, any payments
50 made for such services, and the identity of the payer; and
51 (c) a schedule, with documentation, of any present sources of
52 reimbursement for care, such as health insurance or a government
53 program.
54 § 4925. Case management program. 1. Case management services. Case
55 management services as defined in section forty-nine hundred twenty of
56 this article shall not:
S. 6801 7
1 (a) be utilized to restrict the choice of an eligible impaired person
2 in obtaining necessary case management services from any provider
3 participating in the program who is qualified to provide such services
4 and who undertakes to provide such services, including an organization
5 which provides such services;
6 (b) duplicate case management services currently provided under the
7 medical assistance program or under any other program that the eligible
8 impaired person is enrolled or which such eligible impaired person
9 accesses;
10 (c) be utilized by providers of case management services to create a
11 demand for unnecessary services or programs, particularly those services
12 or programs within their scope of authority; and
13 (d) be provided to any and all eligible impaired persons also receiv-
14 ing institutional care reimbursed under the medical assistance program
15 or to any and all eligible impaired persons in receipt of case manage-
16 ment services under a federal home and community based waiver.
17 2. Case management functions. Case management functions are to be
18 determined on the basis of the eligible impaired person's entrance into
19 the program. A separate case record must be established for each eligi-
20 ble impaired person receiving case management services and each case
21 management function provided, including but not limited to intake and
22 screening which consists of initiating contact with the eligible
23 impaired person and providing information concerning all case management
24 services available under the program.
25 3. Assessment and reassessment. The case manager shall secure through
26 both the program and the department, and with the eligible impaired
27 person's permission or permission of the eligible impaired person's
28 parent, guardian or caretaker:
29 (a) an assessment of the eligible impaired person's service needs
30 including medical, social, psychosocial, educational and any other
31 services deemed necessary;
32 (b) information identifying the barriers to care and existing gaps in
33 service relative to the eligible impaired person's need; and
34 (c) a description of factors relative to the eligible impaired
35 person's care.
36 4. Case management plan and coordination. The case management activ-
37 ities required to establish a comprehensive written case management plan
38 and to effectuate the coordination of services include:
39 (a) identification of the nature, amount, type, frequency and poten-
40 tial duration of the case management services required by an eligible
41 impaired person;
42 (b) selection of the nature, amount, type, frequency and potential
43 duration of services to be provided to the eligible impaired person with
44 the participation of the eligible impaired person, and/or his or her
45 parent, guardian or caretaker, and providers of services;
46 (c) specification of the long-term and short-term goals to be achieved
47 through the case management process;
48 (d) collaboration with health care providers and other formal and
49 informal service providers, including discharge planners and other case
50 managers as appropriate, through case conferences to encourage the
51 exchange of clinical information and to assure:
52 (i) integration of clinical care plans throughout the case management
53 process,
54 (ii) continuity of case management services,
55 (iii) avoidance of duplication of services, including case management
56 services, and
S. 6801 8
1 (iv) establishment of a comprehensive case management plan that
2 addresses the medical, social, psychosocial, educational and any other
3 needs deemed necessary by the eligible impaired person;
4 (e) implementation of the case management plan by the program, in
5 conjunction and consultation with the department, includes:
6 (i) securing the services determined in the case management plan to be
7 appropriate for an eligible impaired person through referral to those
8 agencies or persons who are qualified to provide the identified
9 services,
10 (ii) assisting the eligible impaired person with referral and/or
11 application forms required for the acquisition of services,
12 (iii) advocating for the eligible impaired person with all providers
13 of services, and
14 (iv) developing alternative services to assure continuity in the event
15 of service disruption;
16 (f) crisis intervention by a case manager or health care provider,
17 when necessary, includes:
18 (i) assessment of the nature of the eligible impaired person's impair-
19 ment and circumstances,
20 (ii) determination of the eligible impaired person's emergency service
21 needs, and
22 (iii) revision of the case management plan, including any changes in
23 activities or objectives required to achieve the established goal, as
24 determined through the case management process; and
25 (g) monitoring and follow-up of case management services include:
26 (i) verifying that quality services, as identified in the case manage-
27 ment plan, are being received by the eligible impaired person,
28 (ii) assuring that the recipient is adhering to the case management
29 plan,
30 (iii) ascertaining the eligible impaired person's satisfaction with
31 the services provided and advising the preparer of the case management
32 plan of the findings if the plan has been formulated by a health care
33 provider,
34 (iv) collecting data and documenting in the case record the progress
35 of the eligible impaired person,
36 (v) ascertaining whether the services to which the eligible impaired
37 person has been referred are and continue to be appropriate to his or
38 her needs, and making necessary revisions to the case management plan,
39 (vi) making alternate arrangements when services are potentially
40 unavailable to the eligible impaired person, and
41 (vii) assisting the eligible impaired person and/or his or her parent,
42 guardian, caretaker and/or any and all providers of services to resolve
43 disagreements, questions or problems with implementation of the case
44 management plan.
45 5. Counseling and exit planning. The following measures shall be
46 included within any counseling and exit planning provided by the case
47 management plan and developed in conjunction with the program and the
48 department:
49 (a) assuring that the eligible impaired person obtains, on an ongoing
50 basis, the maximum benefit from the services received;
51 (b) developing support groups for the eligible impaired person, his or
52 her parent, guardian or caretaker and informal providers of services;
53 (c) mediating with the eligible impaired person, his or her parent,
54 guardian or caretaker and/or informal providers of services any problems
55 with service provision that may occur; and
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1 (d) facilitating the eligible impaired person's access to other appro-
2 priate care as needed.
3 6. Procedural requirements for the assessment and provision of
4 services.
5 (a) An assessment provides verification of the eligible impaired
6 person's level of impairment, his or her continuing need for services
7 and the service priorities and evaluation of the eligible impaired
8 person's ability to benefit from such services.
9 (b) An assessment must be completed by a case manager within thirty
10 days of the date of entry into the program. The referral for services
11 may include a plan of care containing significant information developed
12 by the program which should be included as an integral part of the case
13 management plan.
14 (c) An updated assessment of the eligible impaired person's need for
15 case management and other services deemed necessary must be completed by
16 the case manager every six months, or sooner if required by changes in
17 the eligible impaired person's level of impairment, condition or circum-
18 stances.
19 7. Case management plan. A written case management plan shall be
20 completed by the case manager for each eligible impaired person within
21 thirty days of the date of entry into the program.
22 (a) The case management plan shall be reviewed and updated by the case
23 manager as required by changes in the eligible impaired person's level
24 of impairment, condition or circumstances, but not less frequently than
25 every six months subsequent to the initial plan and initial entry into
26 the program.
27 (b) The case management plan shall specify:
28 (i) those activities which the eligible impaired person is expected to
29 undertake within a given period of time toward the accomplishment of
30 each case management goal;
31 (ii) the name of the person or agency, including the individual and/or
32 parent, guardian or caretaker, who will perform needed tasks;
33 (iii) the type of treatment program or service providers to which the
34 recipient will be referred;
35 (iv) the method of provision and those activities to be performed by a
36 service provider or other person to achieve the eligible impaired
37 person's related goal and objective; and
38 (v) the type, amount, frequency and potential duration of services to
39 be delivered or tasks to be performed.
40 8. Continuity of service. (a) Case management services must be ongoing
41 from the time the eligible impaired person is accepted by the program
42 throughout his or her lifetime unless:
43 (i) the coordination of services provided through case management is
44 not required or is no longer required by the eligible impaired person;
45 (ii) the eligible impaired person moves out of state; or
46 (iii) the eligible impaired person and/or his or her parent, guardian
47 or caretaker, on the eligible impaired person's behalf, refuses to
48 accept case management services.
49 (b) Contact with the eligible impaired person and/or his or her
50 parent, guardian or caretaker on the eligible impaired person's behalf
51 must be maintained by the case manager at least monthly, or more
52 frequently as specified in the provider agreement with the program and
53 the department.
54 9. Qualifications of providers of case management services. Case
55 management services shall be provided by social services agencies,
56 facilities, persons, and groups possessing the capability to provide
S. 6801 10
1 such services and which are approved by the program, in conjunction with
2 the commissioners of health, mental retardation and developmental disa-
3 bilities and mental health pursuant to case management provider quali-
4 fications, including:
5 (a) facilities licensed or certified under state law or regulation;
6 (b) health care or social work professionals licensed or certified in
7 accordance with state law;
8 (c) state and local governmental agencies; and
9 (d) home health agencies certified under state law.
10 10. Case managers. Each case manager shall have two years experience,
11 including the performance of assessments and the development of case
12 management plans. Voluntary or part-time experience which can be veri-
13 fied will be accepted on a pro rata basis. The following may be substi-
14 tuted for this requirement:
15 (a) one year of case management experience and a degree in a health or
16 human services field;
17 (b) one year of case management experience and an additional year of
18 experience in other activities related to persons with neurological
19 impairment;
20 (c) a bachelor's or master's degree which includes the performance of
21 assessments and development of case management plans; or
22 (d) meeting the regulatory requirements of a state agency for a case
23 manager.
24 11. Requirements for the provision of services. Those entities seeking
25 to provide case management services through the program and the depart-
26 ment to eligible impaired persons must:
27 (a) establish a written memorandum of understanding or referral agree-
28 ment describing their current or projected relationship with the social
29 services district or districts where case management services will be
30 provided. A copy of the proposed memorandum of understanding or referral
31 agreement must accompany the proposal submitted to both the program and
32 the department. Such proposals and agreements or memoranda of under-
33 standing shall become the basis for a provider agreement between the
34 program and the department and the provider of case management services;
35 (b) submit to the program and the department a written proposal
36 setting forth their plan for provision of case management services. Such
37 proposal shall become the basis for a written provider agreement between
38 the provider of services and the department;
39 (c) submit to the program and department a written proposal setting
40 forth its plan and rates or fees for provision of case management
41 services. Such proposal will become the basis for a written provider
42 agreement between the program and the department.
43 (i) All proposals for provision of case management services become the
44 property of the program and the department and must be for a period of
45 not more than five years and shall be completed on forms prescribed by
46 the department.
47 (ii) At the discretion of the program and the department, any proposal
48 submitted may be referred to other appropriate state agencies for
49 consultation prior to final approval by the program and the department.
50 (iii) All proposals are subject to review and final approval by the
51 department, the department of taxation and finance and the division of
52 the budget.
53 12. Referral agreements and memoranda of understanding. Referral
54 agreements and memoranda of understanding between providers of services,
55 the program and the department shall:
S. 6801 11
1 (a) include all terms of the agreement in one instrument, and be dated
2 and signed by authorized representatives of the parties to the agreement
3 subsequent to the program and department's approval;
4 (b) define those specific functions and activities to be performed
5 through the case management processes;
6 (c) describe the amount, duration, scope and method of providing such
7 case management services under the agreement including the projected
8 frequency and types of contact that will be sustained with the eligible
9 impaired person, in consultation with his or her parent, guardian or
10 caretaker;
11 (d) specify the locations of the facilities, if necessary, to be used
12 in providing case management services;
13 (e) specify the qualifications required for case managers serving any
14 and all eligible impaired persons, including copies of their job
15 descriptions;
16 (f) contain assurances that eligible impaired persons and their
17 parent, guardian or caretaker will be informed of services available to
18 address emergencies that occur outside of usual working hours;
19 (g) specify the requirements for case management program responsibil-
20 ity, recordkeeping and reports, and any formats prescribed by the
21 department for such recordkeeping and reports;
22 (h) provide for access by state and federal officials to financial and
23 other records specified by the department which pertain to the case
24 management process;
25 (i) contain assurances that no restrictions will be imposed upon an
26 eligible impaired person's choice of provider of case management
27 services offered under the program and that each eligible impaired
28 person will be advised that the refusal of such services included in the
29 case management plan does not carry the threat of fiscal or other sanc-
30 tions;
31 (j) outline the provider's contingency plan for assuring smooth tran-
32 sition of eligible impaired persons to other available sources of case
33 management if the provider is unable to continue providing services, if
34 the agreement between the provider, the program and the department is
35 not renewed, or if the agreement is terminated;
36 (k) include a copy of the forms which will be utilized in completing
37 assessments and preparing case management plans; and
38 (l) contain assurances that an annual evaluation of the effectiveness
39 of case management services will be completed.
40 13. Provider agreement. Upon approval of a submitted proposal, a
41 provider agreement will be established between the provider of service
42 and the program, in consultation with the department. Such provider
43 agreements must include a copy of:
44 (a) the provider's proposal;
45 (b) the referral agreement or memorandum of understanding between the
46 provider of service and the program, if deemed necessary;
47 (c) a work plan outlining the case management process as it applies to
48 the eligible impaired person; and
49 (d) the forms to be utilized in the provision of case management
50 services.
51 14. Agreement period. A provider agreement shall not remain in effect
52 for a period exceeding twelve months. This provision may be waived at
53 the discretion of the program and the department if the provision of
54 service to the eligible impaired person for a longer period of time is
55 justified.
S. 6801 12
1 (a) Any provider agreement which is not being properly fulfilled shall
2 be terminated in accordance with the terms of the agreement.
3 (b) Agreements to be renewed must be renegotiated in a timely manner.
4 15. Annual evaluation. An annual evaluation of each case management
5 program shall be performed by the provider and shall be transmitted to
6 the program and the department as required by the provider agreement.
7 The annual evaluation must be received by the department at least ninety
8 days preceding the annual anniversary of the effective date of each
9 provider agreement. The annual evaluation shall:
10 (a) restate the goals and objectives of the case management services
11 that have been provided, as listed in the approved provider proposal;
12 (b) restate the scope of case management provided;
13 (c) using evaluation hypotheses, demonstrate the extent to which the
14 provider has achieved the goals and objectives listed in the approved
15 provider proposal;
16 (d) set forth the types and sources of data collected and used in the
17 evaluation; and
18 (e) recommend any case management service changes based upon the
19 conclusions of the evaluation.
20 16. Monitoring of program performance and provider agreements. To
21 assure that the quality of services provided is in accordance with the
22 requirements of this section, the following performance monitoring is
23 required:
24 (a) The program performance of any state agency establishing an agree-
25 ment with the department for the provision of case management services
26 shall be monitored by the program and the department.
27 (b) The program performance of any other entities entering into an
28 agreement with the department shall be monitored by the program and the
29 department.
30 (c) Program performance monitoring includes on-site visits, at six
31 month intervals, to providers of case management services. The six-month
32 on-site monitoring requirement may be waived by the department to permit
33 annual on-site monitoring of providers when, after two years of opera-
34 tion, no significant deficiencies have been identified in reports
35 prepared. In order for the department to grant a waiver, the appropriate
36 provider shall submit to the department a written request for a waiver
37 and copies of the four most recent monitoring reports prepared. Upon
38 receipt of such request and reports, the department will determine
39 whether there are significant operational deficiencies identified in the
40 monitoring reports. If no significant deficiencies are identified, the
41 waiver shall be granted and deemed in full force and effect.
42 (d) Reports, based upon monitoring by a social services district or by
43 a state agency, and any other evaluations required by a provider agree-
44 ment shall be forwarded to the program and the department commencing
45 with the sixth month following the effective date of each provider
46 agreement and annually thereafter and must be received by the program
47 and the department no later than ninety days prior to the anniversary of
48 the provider agreement.
49 (e) The department shall monitor the performance of all provider
50 agreements.
51 (f) Provider agreements shall be reviewed by the department at least
52 annually to verify conformity with the terms of such agreements. Such
53 monitoring may include:
54 (i) the review of periodic reports, including those program perform-
55 ance reports pursuant to this subdivision;
S. 6801 13
1 (ii) any other evaluations or information required by the department
2 or required by the provider agreement; and
3 (iii) on-site visits to providers of service.
4 (g) Authorization for case management services. Authorization by a
5 provider contracted with the program, in consultation with the commis-
6 sioner is required prior to the provision of case management services.
7 (h) The provisions of this section apply to case management services
8 provided on or after January first, two thousand eleven.
9 § 4926. Determination of eligibility. 1. In order to determine eligi-
10 bility for care under the program, the medical records of the impaired
11 newborn or child shall be reviewed and the person physically seen and
12 evaluated if deemed necessary, by a physician expert assigned to the
13 claim by the program.
14 2. Within one hundred eighty days of receiving the claim and all
15 necessary accompanying documentation and records set forth in subdivi-
16 sion one of this section, the physician expert shall determine whether:
17 (a) the impaired newborn or child is eligible for the program, and
18 (b) if so, the compensation to be provided.
19 3. A copy of the determination shall be mailed promptly to the claim-
20 ant and, upon request, to any health care provider named in the peti-
21 tion.
22 § 4927. Appeals of determination of eligibility. 1. If requested by
23 the claimant or health care provider, the program may convene a panel of
24 three physician experts to review appeals of determination by a physi-
25 cian expert pursuant to section forty-nine hundred twenty-six of this
26 article that the claimant is ineligible for the program. The review of
27 an appeal shall be commenced not later than one hundred twenty days
28 after the determination of ineligibility is provided to the claimant
29 pursuant to section forty-nine hundred twenty-six of this article.
30 2. The program shall provide notice of the date, time and place of
31 such review to the claimant and to any person who requests notice. A
32 claimant may present information for this review.
33 3. The program may require the claimant and any health care provider
34 who provided prenatal, delivery, postpartum, neonatal or pediatric care
35 to the impaired person to speak at the appeal, provided that any such
36 person shall have the right to be represented by counsel.
37 4. The physician expert appeal panel shall provide its written deter-
38 mination to the program within thirty days of the hearing. The decision
39 shall be deemed binding when at least two of the three members agree.
40 5. Such report shall indicate whether the newborn or child is eligible
41 for the program, and if so, the level of compensation to be provided
42 shall be communicated to the program and the department.
43 § 4928. Compensation. 1. (a) Compensation provided pursuant to this
44 article shall cover, to the extent not excluded in subdivision two of
45 this section, medically-necessary and reasonable expenses related to the
46 impairment for medical and hospital care, services and supplies, rehabi-
47 litative and remedial care, residential and custodial care and services,
48 drugs, special equipment, and health insurance co-payments and deduct-
49 ibles, subject to eligibility in section forty-nine hundred twenty-six
50 of this article.
51 (b) Compensation provided pursuant to this article also may include,
52 to the extent not excluded in subdivision two of this section, and as
53 approved by the case manager, reasonable expenses for: additional
54 medical care, services and supplies; care by other professionals, such
55 as social workers, counselors, mental health professionals, home health
56 care workers, custodians and medical professionals; appropriate modifi-
S. 6801 14
1 cations to housing to assure that the impaired newborn resides in a
2 suitable environment; educational and vocational training; and transpor-
3 tation, subject to subdivisions two and three of this section.
4 (c) Compensation provided pursuant to this article may include reason-
5 able expenses incurred in connection with the filing of the initial
6 claim including reasonable attorney's fees as determined in regulation.
7 2. Compensation shall exclude care, services or items, or reimburse-
8 ment, which the impaired person has received or is entitled to receive
9 from:
10 (a) any commercial or self-insuring entity, corporation subject to
11 article forty-three of the insurance law, prepaid health plan or health
12 maintenance organization;
13 (b) any federal, state or local government program, except to the
14 extent such exclusion may be prohibited by federal law and except as
15 provided in subdivision five of this section, provided, however, that
16 compensation may include care, services or items, or reimbursement,
17 which are in supplementation of any care, services or items, or
18 reimbursement, which the newborn has received, or is entitled to receive
19 from any such government program to the extent permitted under such
20 program; and
21 (c) any person as a result of or in settlement of a civil action or
22 prospective civil action by or on behalf of the impaired person relating
23 to the impairment, including an action described in this section.
24 3. Compensation shall not include any monetary award attributable to
25 non-economic damages or loss of future earnings.
26 4. (a) Compensation may be in the form of a documented cash payment
27 for expenses previously incurred; periodic payments made for expenses as
28 incurred; a health insurance policy; the provision of care, services or
29 items by a provider pursuant to a contract with the program; a cash
30 payment to establish, or to add to, a trust for the benefit of the
31 impaired newborn or child; periodic payments for the supplemental needs
32 of the impaired newborn which are not provided by government entitle-
33 ments, with a recognition of the special needs of an impaired person
34 who, because of the nature of the disabilities of the impaired person,
35 may be dependent on government entitlements for life; a combination of
36 the foregoing; or such other form of compensation that will ensure the
37 provision of the care, services and items set forth in subdivision one
38 of this section.
39 (b) Compensation for expenses shall be limited to reasonable
40 reimbursement for similar care, services and items provided in the same
41 community to other persons with impairments.
42 5. (a) Compensation for the following persons shall be reduced to the
43 extent that the medical assistance program provides equivalent or better
44 coverage of medical care, services and supplies than would be provided
45 as compensation by the program without regard to coverage by the medical
46 assistance program:
47 (i) any impaired newborn who is deemed to have been found eligible for
48 medical assistance on the date of birth and to remain eligible for such
49 assistance for a period of one year, by reason of being born to a woman
50 who is eligible for and receiving such assistance on the date of the
51 impaired newborn's birth and who remains or, if pregnant, would remain
52 eligible for such assistance, and for so long as such impaired newborn
53 remains eligible for such assistance; and
54 (ii) any impaired newborn who has been institutionalized not less than
55 thirty days and who would be eligible for supplemental security income
S. 6801 15
1 benefits if not institutionalized and for so long as such impaired
2 newborn remains eligible for medical assistance.
3 (b) In determining the continuing eligibility for and payment of
4 medical assistance with respect to such a child, the availability of
5 benefits under the program shall not be considered income or resources
6 available to the child, nor a legal liability of a third-party.
7 § 4929. Limitation on processing of claims. Any claim for compensation
8 for an eligible impaired person based on a petition filed more than ten
9 years after the birth of the newborn shall be time barred.
10 § 4930. Notice to obstetric patients. 1. Obstetric hospitals may post
11 notice of this program at appropriate locations. Written informational
12 pamphlets describing the program may be provided at any time to the
13 parents or guardians and shall include a clear and concise explanation
14 of the benefits available to the patient under the program, the avail-
15 ability of governmental assistance programs for children with disabili-
16 ties and the toll-free telephone number of the program's claims assist-
17 ance unit.
18 2. If a hospital at which a patient delivers a child has reason to
19 believe that a child has an impairment, it will make every attempt to
20 notify the program's claims assistance unit, and the early intervention
21 official appointed pursuant to title II-A of article two of this chapter
22 in the locality in which the child resides, each of which shall offer
23 the legally responsible parents or guardians the opportunity to discuss
24 benefits, resources and services available, and assist the parent or
25 parents in applying for them.
26 § 4931. New York state standard of care assessment program. 1. There
27 is hereby established within the neurological impaired program of New
28 York state, the standard of care assessment program.
29 2. No civil action shall be brought in any court against any employee,
30 physician, nurse or other expert engaged by the program for any act
31 done, failure to act, or statement or opinion made, within the scope of
32 his or her duties as an employee of such program.
33 3. A list of physician assessors will be assembled, maintained and
34 contracted for the purpose of making determinations of negligence.
35 4. Physicians and nurses shall be paid a flat fee per case for their
36 work either as a level I or level II assessor as determined through
37 regulation.
38 5. The decisions of individual assessors shall be examined period-
39 ically for fairness, quality and appropriateness by the state agency
40 that administers the program or other agency as deemed by regulation.
41 6. Qualifications of physician assessors. (a) Physicians may serve as
42 either a level I or level II assessor but never both in the same claim.
43 (b) The decisions of individual assessors shall be examined period-
44 ically for fairness, quality and appropriateness by the state agency
45 that administers the program or other agency as deemed by regulation.
46 7. Duties of physician assessors. The physician assessors shall
47 perform the following duties:
48 (a) within thirty days of the notice of an eligibility determination,
49 a level I standard of care assessment shall commence. All relevant
50 records shall be obtained from the institution or institutions where the
51 child was born and received its neonatal care.
52 (b) The level I assessment shall conclude with a determination of:
53 (i) whether the standard of care was met by each of the health care
54 providers who participated in the obstetrical care and neonatal manage-
55 ment;
S. 6801 16
1 (ii) whether systems failures at the site of the delivery or neonatal
2 care contributed adversely to the child's outcome.
3 (c) each case shall receive an initial assessment by a level I panel
4 consisting of two board certified obstetricians and a board certified
5 neonatologist who shall determine within ninety days:
6 (i) whether the standard of care was met by each of the individual
7 practitioners who provided care to the patient's mother during the ante
8 partum, intrapartum and delivery periods as well as those caring for the
9 neonate during the first twenty-eight days of his or her birth;
10 (ii) whether systems failures at the site of the delivery or neonatal
11 care contributed adversely to the child's outcome.
12 (d) The panel shall limit its review to the records it has been sent.
13 If this material is deemed to be insufficient to make a determination
14 regarding the standard of care rendered, the case shall be referred to a
15 panel of level II assessors.
16 (e) If all three members of the level I panel are unanimous in decid-
17 ing that the standard of care was met by the individual practitioners
18 and participating hospitals where the care was rendered, the review
19 process concludes.
20 (f) If the level I panel finds that the standard of care has not been
21 met, or is divided in their opinion on this matter, the case will be
22 referred to a second level of review. The panel of level II assessors
23 will consist of three subspecialty boarded physicians or advanced prac-
24 tice nurses whose area of expertise will be decided by the level I
25 screening panelists. This second panel cannot contain any of the physi-
26 cians from the level I panel.
27 (g) Within thirty days of the findings of the level I panel, the level
28 II panel will review the records that have been submitted and notify the
29 involved health care providers that a level II assessment is in process.
30 The level II assessment shall be completed within one hundred twenty
31 days. Level II assessors can request additional records for review
32 and/or interview any individuals that were involved in the patient's
33 obstetrical or neonatal care.
34 (h) If two or more of the level II panel find that the standard of
35 care has been met, the review process concludes.
36 (i) If two or more of the level II panel find that the standard of
37 care has not been met, the health care providers shall be sent a report
38 detailing the acts of negligence that have been identified.
39 (j) If two or more of the level II panel of assessors decide that
40 systems failures contributed adversely to the child's outcome the senior
41 leadership of the institution involved shall be sent a report detailing
42 the negligent offenses that have been identified.
43 (k) If two or more of the level II panel of assessors decide that
44 failure to meet the standard of care by any of the health care providers
45 or hospitals constitutes negligence that contributed to the poor
46 outcome, a report shall be sent to the office of professional medical
47 conduct and the NY patient occurrence, reporting and tracking system.
48 All statutory and regulatory requirements of said physician and hospital
49 review programs shall be and remain in effect relevant to a negligence
50 notification by the level II panel.
51 (l) In each case, the family shall be notified in writing of the final
52 determinations of the standard of care assessments.
53 (m) Detailed summaries of the cases in which negligence was found to
54 be present shall be kept in a database. A casebook shall be created
55 annually which shall include de-identified selected cases from that
56 database. The cases shall be chosen to illustrate specific issues, and
S. 6801 17
1 shall be accompanied by commentary that highlights those aspects of the
2 case that should have been managed differently. This casebook shall be
3 circulated electronically to all obstetrical caregivers throughout the
4 state.
5 § 2. This act shall take effect January 1, 2011; provided, however,
6 that effective immediately, the addition, amendment and/or repeal of any
7 rule or regulation necessary for the implementation of this act on its
8 effective date are authorized and directed to be made and completed on
9 or before such effective date.
