STATE OF NEW YORK
________________________________________________________________________
2237--B
2023-2024 Regular Sessions
IN SENATE
January 19, 2023
___________
Introduced by Sens. RIVERA, BAILEY, BRESLIN, BRISPORT, BROUK, CHU,
CLEARE, COMRIE, COONEY, FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES,
HARCKHAM, HINCHEY, HOYLMAN-SIGAL, JACKSON, KAVANAGH, KENNEDY, KRUEGER,
LIU, MAY, MAYER, MYRIE, PARKER, PERSAUD, RAMOS, SALAZAR, SANDERS,
SEPULVEDA, SERRANO, STAVISKY, THOMAS, WEBB -- read twice and ordered
printed, and when printed to be committed to the Committee on Health
-- reported favorably from said committee and committed to the Commit-
tee on Finance -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- recommitted
to the Committee on Health in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the social services law, in relation to coverage for
certain individuals under the 1332 state innovation program
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 369-ii of the social services law, as added by
2 section 3 of part H of chapter 57 of the laws of 2023, is amended to
3 read as follows:
4 § 369-ii. 1332 state innovation program. 1. Authorization. Notwith-
5 standing section three hundred sixty-nine-gg of this title, subject to
6 federal approval, if it is in the financial interest of the state to do
7 so, the commissioner of health is authorized, with the approval of the
8 director of the budget, to establish a 1332 state innovation program
9 pursuant to section 1332 of the patient protection and affordable care
10 act (P.L. 111-148) and subdivision twenty-five of section two hundred
11 sixty-eight-c of the public health law. The commissioner of health's
12 authority pursuant to this section is contingent upon obtaining and
13 maintaining all necessary approvals from the secretary of health and
14 human services and the secretary of the treasury based on an application
15 for a waiver for state innovation. The commissioner of health [may]
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04552-06-3
S. 2237--B 2
1 shall take all actions necessary to obtain such approvals, including
2 seeking any necessary approvals for amendments to the waiver.
3 2. Definitions. For the purposes of this section:
4 (a) "Eligible organization" means an insurer licensed pursuant to
5 article thirty-two or forty-two of the insurance law, a corporation or
6 an organization under article forty-three of the insurance law, or an
7 organization certified under article forty-four of the public health
8 law, including providers certified under section forty-four hundred
9 three-e of the public health law.
10 (b) "Approved organization" means an eligible organization approved by
11 the commissioner of health to underwrite a 1332 state innovation health
12 insurance plan pursuant to this section.
13 (c) "Health care services" means:
14 (i) the services and supplies as defined by the commissioner of health
15 in consultation with the superintendent of financial services, and shall
16 be consistent with and subject to the essential health benefits as
17 defined by the commissioner in accordance with the provisions of the
18 patient protection and affordable care act (P.L. 111-148) and consistent
19 with the benefits provided by the reference plan selected by the commis-
20 sioner of health for the purposes of defining such benefits, and shall
21 include coverage of and access to the services of any national cancer
22 institute-designated cancer center licensed by the department of health
23 within the service area of the approved organization that is willing to
24 agree to provide cancer-related inpatient, outpatient and medical
25 services to all enrollees in approved organizations' plans in such
26 cancer center's service area under the prevailing terms and conditions
27 that the approved organization requires of other similar providers to be
28 included in the approved organization's network, provided that such
29 terms shall include reimbursement of such center at no less than the
30 fee-for-service medicaid payment rate and methodology applicable to the
31 center's inpatient and outpatient services;
32 (ii) dental and vision services as defined by the commissioner of
33 health, and
34 (iii) as defined by the commissioner of health and subject to federal
35 approval, certain services and supports provided to enrollees who have
36 functional limitations and/or chronic illnesses that have the primary
37 purpose of supporting the ability of the enrollee to live or work in the
38 setting of their choice, which may include the individual's home, a
39 worksite, or a provider-owned or controlled residential setting.
40 (d) "Qualified health plan" means a health plan that meets the crite-
41 ria for certification described in § 1311(c) of the patient protection
42 and affordable care act (P.L. 111-148), and is offered to individuals
43 through the NY State of Health, the official health Marketplace, or
44 Marketplace, as defined in subdivision two of section two hundred
45 sixty-eight-a of the public health law.
46 (e) "Basic health insurance plan" means a health plan providing health
47 care services, separate and apart from qualified health plans, that is
48 issued by an approved organization and certified in accordance with
49 section three hundred sixty-nine-gg of this title.
50 (f) "1332 state innovation plan" means a standard health plan provid-
51 ing health care services, separate and apart from a qualified health
52 plan and a basic health insurance plan, that is issued by an approved
53 organization and certified in accordance with this section.
54 3. State innovation plan eligible individual. (a) A person is eligible
55 to receive coverage for health care under this section if they:
S. 2237--B 3
1 (i) reside in New York state and are under sixty-five years of age,
2 including individuals that are ineligible for the basic health program
3 under 42 U.S.C. section 18051 on the basis of immigration status
4 provided they are determined eligible pursuant to subdivision nine of
5 this section and are determined eligible through the waiver process to
6 receive coverage under this section regardless of direct federal finan-
7 cial support for such individuals;
8 (ii) are not eligible for medical assistance under title eleven of
9 this article, excluding eligibility for limited medical assistance for
10 the treatment of an emergency medical condition authorized pursuant to
11 42 U.S.C. 1396, or for the child health insurance plan described in
12 title one-A of article twenty-five of the public health law;
13 (iii) are not eligible for minimum essential coverage, as defined in
14 section 5000A(f) of the Internal Revenue Service Code of 1986, or is
15 eligible for an employer-sponsored plan that is not affordable, in
16 accordance with section 5000A(f) of such code; and
17 (iv) have household income at or below two hundred fifty percent of
18 the federal poverty line defined and annually revised by the United
19 States department of health and human services for a household of the
20 same size; and has household income that exceeds one hundred thirty-
21 three percent of the federal poverty line defined and annually revised
22 by the United States department of health and human services for a
23 household of the same size; provided, however, that MAGI eligible
24 noncitizens lawfully present in the United States, and individuals that
25 are ineligible for the basic health program under 42 U.S.C. section
26 18051 on the basis of immigration status with household incomes at or
27 below one hundred thirty-three percent of the federal poverty line shall
28 be eligible to receive coverage for health care services pursuant to the
29 provisions of this section [if such noncitizen would be ineligible for
30 medical assistance under title eleven of this article due to their immi-
31 gration status].
32 (b) Subject to federal approval, a child born to an individual eligi-
33 ble for and receiving coverage for health care services pursuant to this
34 section who but for their eligibility under this section would be eligi-
35 ble for coverage pursuant to subparagraphs two or four of paragraph (b)
36 of subdivision one of section three hundred sixty-six of this article,
37 shall be administratively enrolled, as defined by the commissioner of
38 health, in medical assistance and to have been found eligible for such
39 assistance on the date of such birth and to remain eligible for such
40 assistance for a period of one year.
41 (c) Subject to federal approval, an individual who is eligible for and
42 receiving coverage for health care services pursuant to this section is
43 eligible to continue to receive health care services pursuant to this
44 section during the individual's pregnancy and for a period of one year
45 following the end of the pregnancy without regard to any change in the
46 income of the household that includes the pregnant individual, even if
47 such change would render the pregnant individual ineligible to receive
48 health care services pursuant to this section.
49 (d) For the purposes of this section, 1332 state innovation program
50 eligible individuals are prohibited from being treated as qualified
51 individuals under section 1312 of the Affordable Care Act and as eligi-
52 ble individuals under section 1331 of the ACA and enrolling in qualified
53 health plan through the Marketplace or standard health plan through the
54 Basic Health Program.
55 4. Enrollment. (a) Subject to federal approval, the commissioner of
56 health is authorized to establish an application and enrollment proce-
S. 2237--B 4
1 dure for prospective enrollees. Such procedure will include a verifica-
2 tion system for applicants, which must be consistent with 42 USC §
3 1320b-7.
4 (b) Such procedure shall allow for continuous enrollment for enrollees
5 to the 1332 state innovation program where an individual may apply and
6 enroll for coverage at any point.
7 (c) Upon an applicant's enrollment in a 1332 state innovation plan,
8 coverage for health care services pursuant to the provisions of this
9 section shall be retroactive to the first day of the month in which the
10 individual was determined eligible, except in the case of program tran-
11 sitions within the Marketplace.
12 (d) A person who has enrolled for coverage pursuant to this section,
13 and who loses eligibility to enroll in the 1332 state innovation program
14 for a reason other than [citizenship status,] lack of state residence,
15 [failure to provide a valid social security number,] providing inaccu-
16 rate information that would affect eligibility when requesting or renew-
17 ing health coverage pursuant to this section, or failure to make an
18 applicable premium payment, before the end of a twelve month period
19 beginning on the effective date of the person's initial eligibility for
20 coverage, or before the end of a twelve month period beginning on the
21 date of any subsequent determination of eligibility, shall have their
22 eligibility for coverage continued until the end of such twelve month
23 period, provided that the state receives federal approval for using
24 funds under an approved 1332 waiver.
25 5. Premiums. Subject to federal approval, the commissioner of health
26 shall establish premium payments enrollees in a 1332 state innovation
27 plan shall pay to approved organizations for coverage of health care
28 services pursuant to this section. Such premium payments shall be estab-
29 lished in the following manner:
30 (a) up to fifteen dollars monthly for an individual with a household
31 income above two hundred percent of the federal poverty line but at or
32 below two hundred fifty percent of the federal poverty line defined and
33 annually revised by the United States department of health and human
34 services for a household of the same size; and
35 (b) no payment is required for individuals with a household income at
36 or below two hundred percent of the federal poverty line defined and
37 annually revised by the United States department of health and human
38 services for a household of the same size.
39 6. Cost-sharing. The commissioner of health shall establish cost-shar-
40 ing obligations for enrollees, subject to federal approval, including
41 childbirth and newborn care consistent with the medical assistance
42 program under title eleven of this article. There shall be no cost-shar-
43 ing obligations for enrollees for:
44 (a) dental and vision services as defined in subparagraph (ii) of
45 paragraph (c) of subdivision two of this section; and
46 (b) services and supports as defined in subparagraph (iii) of para-
47 graph (c) of subdivision two of this section.
48 7. Rates of payment. (a) The commissioner of health shall select the
49 contract with an independent actuary to study and recommend appropriate
50 reimbursement methodologies for the cost of health care service coverage
51 pursuant to this section. Such independent actuary shall review and make
52 recommendations concerning appropriate actuarial assumptions relevant to
53 the establishment of reimbursement methodologies, including but not
54 limited to; the adequacy of rates of payment in relation to the popu-
55 lation to be served adjusted for case mix, the scope of health care
S. 2237--B 5
1 services approved organizations must provide, the utilization of such
2 services and the network of providers required to meet state standards.
3 (b) Upon consultation with the independent actuary and entities
4 representing approved organizations, the commissioner of health shall
5 develop reimbursement methodologies and fee schedules for determining
6 rates of payment, which rates shall be approved by the director of the
7 division of the budget, to be made by the department to approved organ-
8 izations for the cost of health care services coverage pursuant to this
9 section. Such reimbursement methodologies and fee schedules may include
10 provisions for capitation arrangements.
11 (c) The commissioner of health shall have the authority to promulgate
12 regulations, including emergency regulations, necessary to effectuate
13 the provisions of this subdivision.
14 (d) The department of health shall require the independent actuary
15 selected pursuant to paragraph (a) of this subdivision to provide a
16 complete actuarial report, along with all actuarial assumptions made and
17 all other data, materials and methodologies used in the development of
18 rates for the 1332 state innovation plan authorized under this section.
19 Such report shall be provided annually to the temporary president of the
20 senate and the speaker of the assembly.
21 8. An individual who is lawfully admitted for permanent residence,
22 permanently residing in the United States under color of law, or who is
23 a non-citizen in a valid nonimmigrant status, as defined in 8 U.S.C.
24 1101(a)(15), and who would be ineligible for medical assistance under
25 title eleven of this article due to their immigration status if the
26 provisions of section one hundred twenty-two of this chapter were
27 applied, shall be considered to be ineligible for medical assistance for
28 purposes of paragraphs (b) and (c) of subdivision three of this section.
29 9. (a) In determining eligibility for residents of the state that are
30 ineligible for the basic health program under 42 U.S.C. section 18051 on
31 the basis of immigration status, the commissioner of health may place
32 limitations on enrollment to ensure that the costs associated with
33 rendering services to this population do not exceed the revenues antic-
34 ipated to be transferred to the 1332 state innovation program fund,
35 pursuant to section ninety-eight-d of the state finance law. In estab-
36 lishing any limitations pursuant to this subdivision the commissioner of
37 health shall enroll as many individuals as reasonably practicable while
38 ensuring continual coverage for such additional individuals based on
39 current and anticipated 1332 state innovation program fund reserves.
40 (b) In determining any limitations on enrollment, the commissioner of
41 health shall determine income bands for such individuals from zero to
42 two hundred fifty percent of the federal poverty line defined and annu-
43 ally revised by the United States department of health and human
44 services for a household of the same size. The commissioner of health
45 shall prioritize the enrollment of individuals from the lowest income
46 band first and then the remaining income bands in ascending order.
47 (c) Notwithstanding the provisions of paragraph (b) of this subdivi-
48 sion, the commissioner of health may also include subsets of the popu-
49 lation whose continued health and well-being would be significantly at
50 risk without routine access to health care. Population subsets to be
51 prioritized for enrollment shall be determined by the commissioner of
52 health and shall include but not be limited to: (i) individuals with
53 life threatening conditions, (ii) individuals in need of an organ trans-
54 plant; and (iii) individuals with significant behavioral health issues
55 including but not limited to serious mental illness or substance use
56 disorder.
S. 2237--B 6
1 10. The commissioner is authorized to seek a waiver or other applica-
2 ble federal approval for any additional monies to support the 1332 state
3 innovation program that may be associated with a reduction in the utili-
4 zation of treatment for an emergency medical condition authorized pursu-
5 ant to 42 U.S.C. 1396. Any additional monies shall be transferred to the
6 1332 state innovation program fund established pursuant to section nine-
7 ty-eight-d of the state finance law and used for such purposes.
8 11. Reporting. The commissioner of health shall submit a report to the
9 temporary president of the senate and the speaker of the assembly annu-
10 ally by December thirty-first. The report shall include, at a minimum,
11 an analysis of the 1332 state innovation program and its impact on the
12 financial interest of the state; its impact on the Marketplace including
13 enrollment and premiums; its impact on the number of uninsured individ-
14 uals in the state; its impact on the Medicaid global cap; any enrollment
15 limitations established pursuant to subdivision nine of this section
16 including the rationale and supporting fiscal calculations used to
17 justify such limitation, including any historical data, if available,
18 for the previous three years related to any previous limitations of
19 enrollment, funds transferred to the 1332 state innovation program fund
20 pursuant to section ninety-eight-d of the state finance law, and totals
21 on any savings to the state due to coverage of residents of the state
22 that are ineligible for the basic health program under 42 U.S.C. section
23 18051 on the basis of immigration status; and the demographics of the
24 1332 state innovation program enrollees including age and immigration
25 status.
26 [10.] 12. Severability. If the secretary of health and human services
27 or the secretary of the treasury do not approve any provision of the
28 application for a state innovation waiver, such decision shall in no way
29 affect or impair any other provisions that the secretaries may approve
30 under this section.
31 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
32 sion, section or part of this act shall be adjudged by any court of
33 competent jurisdiction to be invalid, such judgment shall not affect,
34 impair, or invalidate the remainder thereof, but shall be confined in
35 its operation to the clause, sentence, paragraph, subdivision, section
36 or part thereof directly involved in the controversy in which such judg-
37 ment shall have been rendered. It is hereby declared to be the intent of
38 the legislature that this act would have been enacted even if such
39 invalid provisions had not been included herein.
40 § 3. This act shall take effect on the same date and in the same
41 manner as section 3 of part H of chapter 57 of the laws of 2023, takes
42 effect.
