Amd §365-f, rpld §365-f sub 4-a ¶¶(b-1) - (b-3), sub 4-d ¶(d), Soc Serv L
Directs the commissioner of health to provide authorizations to all fiscal intermediaries that timely submit a request for authorization prior to January 1, 2024; details information required for such authorizations; makes related provisions.
STATE OF NEW YORK
________________________________________________________________________
5281--A
2023-2024 Regular Sessions
IN ASSEMBLY
March 7, 2023
___________
Introduced by M. of A. SAYEGH, DICKENS, HEVESI, SEPTIMO, LAVINE, STECK,
EICHENSTEIN, WEPRIN, RAMOS -- read once and referred to the Committee
on Health -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the social services law, in relation to certain authori-
zations to fiscal intermediaries; and to repeal certain provisions of
such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of subdivision 4-a of section 365-f of the
2 social services law, as amended by section 4 of part G of chapter 57 of
3 the laws of 2019, subparagraph (vi) as amended by section 1 of part LL
4 of chapter 57 of the laws of 2021, is amended to read as follows:
5 (b) [Notwithstanding any inconsistent provision of section one hundred
6 sixty-three of the state finance law, or section one hundred forty-two
7 of the economic development law the commissioner shall enter into
8 contracts under this subdivision with eligible contractors that submit
9 an offer for a contract, provided, however, that:
10 (i) the department shall post on its website:
11 (A) a description of the proposed services to be provided pursuant to
12 contracts in accordance with this subdivision;
13 (B) that the selection of contractors shall be based on criteria
14 reasonably related to the contractors' ability to provide fiscal inter-
15 mediary services including but not limited to: ability to appropriately
16 serve individuals participating in the program, geographic distribution
17 that would ensure access in rural and underserved areas, demonstrated
18 cultural and language competencies specific to the population of consum-
19 ers and those of the available workforce, ability to provide timely
20 consumer assistance, experience serving individuals with disabilities,
21 the availability of consumer peer support, and demonstrated compliance
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09732-03-3
A. 5281--A 2
1 with all applicable federal and state laws and regulations, including
2 but not limited to those relating to wages and labor;
3 (C) the manner by which prospective contractors may seek such
4 selection, which may include submission by electronic means;
5 (ii) all reasonable and responsive offers that are received from
6 prospective contractors in timely fashion shall be reviewed by the
7 commissioner;
8 (iii) the commissioner shall award such contracts to the contractors
9 that best meet the criteria for selection and are best suited to serve
10 the purposes of this section and the needs of consumers;
11 (iv) all entities providing fiscal intermediary services on or before
12 April first, two thousand nineteen, shall submit an offer for a contract
13 under this section within sixty days after the commissioner publishes
14 the initial offer on the department's website. Such entities shall be
15 deemed authorized to provide such services unless: (A) the entity fails
16 to submit an offer for a contract under this section within the sixty
17 days; or (B) the entity's offer for a contract under this section is
18 denied;
19 (v) all decisions made and approaches taken pursuant to this paragraph
20 shall be documented in a procurement record as defined in section one
21 hundred sixty-three of the state finance law; and
22 (vi) the commissioner is authorized to either reoffer contracts or
23 utilize the previous offer, to ensure that all provisions of this
24 section are met.] The commissioner shall provide authorizations under
25 this subdivision to all fiscal intermediaries that timely submit a
26 request for authorization prior to January first, two thousand twenty-
27 four, and meet the requirements of this section. No entity shall
28 provide, directly or through contract, fiscal intermediary services
29 without having received an authorization as a fiscal intermediary issued
30 by the commissioner in accordance with this subdivision, or that has a
31 pending authorization timely submitted and currently in processing,
32 review, appeal, or legal challenge.
33 (i) An application for authorization as a fiscal intermediary shall be
34 filed with the commissioner, together with such other forms and informa-
35 tion as shall be prescribed by, or acceptable to the commissioner. Such
36 information shall consist of the following:
37 (A) the name and employer identification number, of the entity,
38 including any subsidiary corporations, if applicable, and any name
39 under which the entity does business;
40 (B) all addresses at which the organization operates;
41 (C) the names, titles and contact information of all officers and
42 directors in a not-for-profit company or business, or managers in a
43 limited liability company, as well as the name and employment history of
44 the individual ultimately accountable for operation of the fiscal inter-
45 mediary; and for a not-for-profit entity, the number of director posi-
46 tions set by the company's by-laws, and how many are currently filled;
47 (D) a history of the organization, along with an overview of the
48 organization and all services it offers, including any relationships
49 with outside agencies that may influence in any way the ability of the
50 organization to provide fiscal intermediary services consistent with the
51 manner described in its application;
52 (E) all policies and procedures of the fiscal intermediary, including
53 any contracts or other documents used in communications with consumers;
54 (F) plans to solicit and consider input from the fiscal intermediary's
55 consumers, staff, personal assistants and other interested parties which
56 may be charged with roles including, but not limited to, quality assur-
A. 5281--A 3
1 ance review, referral, program monitoring or development or establishing
2 and responding to community needs; such input may be in the form of a
3 board of directors, committee, survey, or other mechanism, provided that
4 the majority of input obtained as part of this process must be from
5 individual consumers and consumer advocates of the fiscal intermediary;
6 (G) the organization's plan to address the needs of consumers and
7 their personal assistants in a timely manner, regardless of where they
8 live, including, but not limited to, input from consumers, obtaining
9 physicals and other health information from personal assistants, obtain-
10 ing time records for payroll, and timely processing of payroll; and
11 (H) a written sworn statement by an officer of the entity disclosing
12 any pending litigation, unsatisfied judgments or penalties, convictions
13 for fraud or sanctions imposed by government authorities.
14 (ii) The entity shall reasonably promptly notify the department of any
15 change in the information submitted to the department for authorization
16 under this subdivision.
17 (iii) The commissioner shall not withhold approval of any application
18 for authorization that demonstrates the fiscal intermediary's ability to
19 provide fiscal intermediary services, in accordance with the manner
20 required by this subdivision and the rules and regulations hereunder.
21 All such applications shall be approved by the commissioner.
22 (iv) If the commissioner denies an application for authorization, he
23 or she shall include a narrative explanation of the reason or reasons
24 for its denial and provide the fiscal intermediary with sixty days to
25 submit additional information for reconsideration by the commissioner.
26 (v) The commissioner shall consider and evaluate any response received
27 by the fiscal intermediary before reaching a final determination, which
28 likewise shall be accompanied by a narrative explanation, if the appli-
29 cation is still denied.
30 (vi) All orders or determinations under this subdivision shall be
31 subject to review as provided in article seventy-eight of the civil
32 practice law and rules.
33 § 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 4-a of
34 section 365-f of the social services law, as amended by section 3 of
35 part G of chapter 57 of the laws of 2019, the opening paragraph of
36 subparagraph (i) as amended by section 2 of part PP of chapter 57 of the
37 laws of 2022, are amended to read as follows:
38 (i) "Fiscal intermediary" means an entity that provides fiscal inter-
39 mediary services and has a contract for providing such services with
40 [the department of health and is selected through the procurement proc-
41 ess described in paragraphs (b), (b-1), (b-2) and (b-3) of this subdivi-
42 sion. Eligible applicants for contracts shall be entities that are capa-
43 ble of appropriately providing fiscal intermediary services, performing
44 the responsibilities of a fiscal intermediary, and complying with this
45 section, including but not limited to entities that]:
46 (A) [are a service center for independent living under section one
47 thousand one hundred twenty-one of the education law; or
48 (B) have been established as fiscal intermediaries prior to January
49 first, two thousand twelve and have been continuously providing such
50 services for eligible individuals under this section.] a local depart-
51 ment of social services; an organization licensed under article forty-
52 four of the public health law; or
53 (B) an accountable care organization certified under article twenty-
54 nine-E of the public health law or an integrated delivery system
55 composed primarily of health care providers recognized by the department
A. 5281--A 4
1 as a performing provider system under the delivery system reform incen-
2 tive payment program.
3 (ii) Fiscal intermediary services shall include the following
4 services, performed on behalf of the consumer to facilitate his or her
5 role as the employer:
6 (A) wage and benefit processing for consumer directed personal assist-
7 ants;
8 (B) processing all income tax and other required wage withholdings;
9 (C) complying with workers' compensation, disability and unemployment
10 requirements;
11 (D) maintaining personnel records for each consumer directed personal
12 assistant, including time records and other documentation needed for
13 wages and benefit processing and a copy of the medical documentation
14 required pursuant to regulations established by the commissioner;
15 (E) ensuring that the health status of each consumer directed personal
16 assistant is assessed prior to service delivery pursuant to regulations
17 issued by the commissioner;
18 (F) maintaining records of service authorizations or reauthorizations;
19 (G) monitoring the consumer's or, if applicable, the designated repre-
20 sentative's continuing ability to fulfill the consumer's responsibil-
21 ities under the program and promptly notifying the authorizing entity of
22 any circumstance that may affect the consumer's or, if applicable, the
23 designated representative's ability to fulfill such responsibilities;
24 (H) complying with regulations established by the commissioner speci-
25 fying the responsibilities of fiscal intermediaries providing services
26 under this title; and
27 (I) entering into a department approved memorandum of understanding
28 with the consumer that describes the parties' responsibilities under
29 this program[; and
30 (J) other related responsibilities which may include, as determined by
31 the commissioner, assisting consumers to perform the consumers' respon-
32 sibilities under this section and department regulations in a manner
33 that does not infringe upon the consumer's responsibilities and self-di-
34 rection].
35 § 3. Paragraphs (b-1), (b-2) and (b-3) of subdivision 4-a of section
36 365-f of the social services law are REPEALED.
37 § 4. Subdivision 4-b of section 365-f of the social services law, as
38 amended by section 8 of part G of chapter 57 of the laws of 2019, is
39 amended to read as follows:
40 4-b. Actions involving the authorization of a fiscal intermediary.
41 (a) [The department may terminate a fiscal intermediary's contract
42 under this section or suspend or limit the fiscal intermediary's rights
43 and privileges under the contract] A fiscal intermediary's authorization
44 may be revoked, suspended, limited or annulled upon thirty [day's] days'
45 written notice to the fiscal intermediary, if the commissioner finds
46 that the fiscal intermediary has failed to comply with the provisions of
47 this section or regulations promulgated hereunder. The written notice
48 shall include:
49 (i) A description of the conduct and the issues related thereto that
50 have been identified as failure of compliance; and
51 (ii) the time frame of the conduct that fails compliance.
52 (b) Notwithstanding the foregoing, upon determining that the public
53 health or safety would be imminently endangered by the continued opera-
54 tion or actions of the fiscal intermediary, the commissioner may [termi-
55 nate] revoke, suspend, limit or annul the fiscal intermediary's
56 [contract or suspend or limit the fiscal intermediary's rights and priv-
A. 5281--A 5
1 ileges under the contract] authorization immediately upon written
2 notice.
3 (c) All orders or determinations under this subdivision shall be
4 subject to review as provided in article seventy-eight of the civil
5 practice law and rules.
6 § 5. Paragraph (c) of subdivision 4-d of section 365-f of the social
7 services law, as added by section 7 of part G of chapter 57 of the laws
8 of 2019, is amended to read as follows:
9 (c) Where a fiscal intermediary is suspending or ceasing operation
10 pursuant to an order under subdivision four-b of this section, [or has
11 failed to submit an offer for a contract, or has been denied a contract
12 under this section,] all the provisions of this subdivision shall apply
13 except subparagraph (i) of paragraph (a) of this subdivision, notice of
14 which to all parties shall be provided by the department as appropriate.
15 § 6. Paragraph (d) of subdivision 4-d of section 365-f of the social
16 services law is REPEALED.
17 § 7. This act shall take effect immediately and shall be deemed to
18 have been in full force and effect on and after April 1, 2023.
