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A09761 Summary:

Rpld §365-f sub 4-a ¶¶(b), (b-1), (b-2), (b-3) & (c), subs 4-b & 4-c, amd §365-f, Soc Serv L
Relates to the registration process for fiscal intermediaries; provides for the manner and form of how fiscal intermediaries shall register and the costs for such registration or registration renewal.
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A09761 Text:

                STATE OF NEW YORK
                   IN ASSEMBLY
                                     March 28, 2022
        Introduced by M. of A. STIRPE -- read once and referred to the Committee
          on Health
        AN ACT to amend the social services law, in relation to the registration
          process for 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. Paragraphs (b), (b-1), (b-2), (b-3) and (c) of  subdivision
     2  4-a of section 365-f of the social services law are REPEALED.
     3    §  2.  Paragraph (a) of subdivision 4-a of section 365-f of the social
     4  services law, as added by section 1 of part E of chapter 57 of the  laws
     5  of 2017, subparagraphs (i) and (ii) as amended by section 3 of part G of
     6  chapter 57 of the laws of 2019, is amended to read as follows:
     7    (a) For the purposes of this section:
     8    (i)  "Fiscal intermediary" means an entity that provides fiscal inter-
     9  mediary services and has a contract for providing such services with the
    10  department of health and is [selected through  the  procurement  process
    11  described  in paragraph (b) of this] registered by the department pursu-
    12  ant  subdivision  four-b  of  this  section.  Eligible  [applicants  for
    13  contracts  shall  be]  entities shall demonstrate to the department that
    14  they  are  capable  of  appropriately  providing   fiscal   intermediary
    15  services,  performing the responsibilities of a fiscal intermediary, and
    16  complying with this section, including but not limited to entities that:
    17    (A) are a service center for  independent  living  under  section  one
    18  thousand one hundred twenty-one of the education law; or
    19    (B)  have been established as fiscal intermediaries prior to [January]
    20  April first, two thousand [twelve and have been  continuously  providing
    21  such services for eligible individuals under this section] twenty-two.
    22    (ii)   Fiscal   intermediary  services  shall  include  the  following
    23  services, performed on behalf of the consumer to facilitate his  or  her
    24  role as the employer:
    25    (A) wage and benefit processing for consumer directed personal assist-
    26  ants;
    27    (B) processing all income tax and other required wage withholdings;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 9761                             2
     1    (C)  complying with workers' compensation, disability and unemployment
     2  requirements;
     3    (D)  maintaining personnel records for each consumer directed personal
     4  assistant, including time records and  other  documentation  needed  for
     5  wages  and  benefit  processing  and a copy of the medical documentation
     6  required pursuant to regulations established by the commissioner;
     7    (E) ensuring that the health status of each consumer directed personal
     8  assistant is assessed prior to service delivery pursuant to  regulations
     9  issued by the commissioner;
    10    (F) maintaining records of service authorizations or reauthorizations;
    11    (G) monitoring the consumer's or, if applicable, the designated repre-
    12  sentative's  continuing  ability  to fulfill the consumer's responsibil-
    13  ities under the program and promptly notifying the authorizing entity of
    14  any circumstance that may affect the consumer's or, if  applicable,  the
    15  designated representative's ability to fulfill such responsibilities;
    16    (H)  complying with reporting requirements and regulations established
    17  by the commissioner specifying the responsibilities of  fiscal  interme-
    18  diaries providing services under this title;
    19    (I)  entering  into  a department approved memorandum of understanding
    20  with the consumer that describes  the  parties'  responsibilities  under
    21  this program; [and]
    22    (J)  reporting quality monitoring and oversight data required pursuant
    23  to this section; and
    24    (K) other related responsibilities which may include, as determined by
    25  the commissioner, assisting consumers to perform the consumers'  respon-
    26  sibilities  under  this  section  and department regulations in a manner
    27  that does not infringe upon the consumer's responsibilities and self-di-
    28  rection.
    29    (iii) Fiscal intermediaries are not responsible for, and fiscal inter-
    30  mediary services shall not include, fulfillment of the  responsibilities
    31  of  the  consumer or, if applicable, the consumer's designated represen-
    32  tative as established  by  the  commissioner.  A  fiscal  intermediary's
    33  responsibilities  shall not include, and a fiscal intermediary shall not
    34  engage in: managing the plan of care including recruiting and  hiring  a
    35  sufficient  number  of  individuals  who meet the definition of consumer
    36  directed personal assistant, as such term is defined by the  commission-
    37  er,  to  provide authorized services that are included on the consumer's
    38  plan  of  care;  training,  supervising  and  scheduling  each  consumer
    39  directed  personal assistant; terminating the consumer directed personal
    40  assistant's employment; or assuring that each consumer directed personal
    41  assistant competently and safely performs the  personal  care  services,
    42  home health aide services and skilled nursing tasks that are included on
    43  the  consumer's  plan  of  care.  A  fiscal  intermediary shall exercise
    44  reasonable care in properly carrying out its responsibilities under  the
    45  program.
    46    §  3.  Subdivision  4-b of section 365-f of the social services law is
    47  REPEALED and a new subdivision 4-b is added to read as follows:
    48    4-b. Fiscal intermediary registration. (a) All  fiscal  intermediaries
    49  shall be registered with the department prior to providing fiscal inter-
    50  mediary  services.  The  department  shall  not  deny registration to an
    51  existing fiscal intermediary in good standing with the department on the
    52  effective date of this section.
    53    (i) A registration or registration renewal shall  be  valid  for  five
    54  years  from  the  date  of  issue. An application for the renewal of any
    55  registration issued under this section shall be filed with  the  depart-

        A. 9761                             3
     1  ment  not  more  than  six months nor less than four months prior to the
     2  expiration thereof.
     3    (ii)  The fee for initial registration shall be based on the estimated
     4  number of consumers within the applicant's service area,  as  determined
     5  by  the  department in regulations, but in no event shall the fee exceed
     6  five thousand dollars.
     7    (iii) The fee for registration renewal shall be based on the number of
     8  consumers within the applicant's  service  area  as  determined  by  the
     9  department  at the date of renewal, but in no event shall the fee exceed
    10  two thousand dollars. Fiscal  intermediaries  that  fail  to  apply  for
    11  registration  renewal within the timeframe set forth in subparagraph (i)
    12  of this paragraph shall be subject to a penalty of five hundred  dollars
    13  each month or part thereof that the fiscal intermediary is in default. A
    14  fiscal intermediary that failed to apply for registration renewal in the
    15  prior year by the deadline of the current year shall not be permitted to
    16  register  for the upcoming registration period unless such fiscal inter-
    17  mediary submits any unpaid late fees.
    18    (iv) For existing fiscal intermediaries  in  good  standing  with  the
    19  department  on  the effective date of this section, the department shall
    20  develop a streamlined registration process that ensures continuation  of
    21  fiscal  intermediary  services and requires attestation that such fiscal
    22  intermediaries can achieve compliance  with  the  requirements  of  this
    23  section.  Upon  issuance  of registration by the department, such fiscal
    24  intermediaries shall be subject to all requirements set  forth  in  this
    25  section.
    26    (b)  The  application for initial registration shall be submitted on a
    27  form prescribed by the department, which shall  include  an  attestation
    28  that the entity is able to provide fiscal intermediary services, includ-
    29  ing but not limited to:
    30    (i) the applicant's ability to appropriately serve individuals partic-
    31  ipating in the program;
    32    (ii)  demonstrated  compliance  with  all applicable federal and state
    33  laws and regulations, including but not limited  to  those  relating  to
    34  wages and labor; and
    35    (iii)  provide  additional  informational  data  to  the department as
    36  required in paragraph (i) of this subdivision.
    37    (c) The application for registration renewal shall be submitted  on  a
    38  form  prescribed  by  the  department  and  include  such information as
    39  descriptions of any material changes in  the  circumstances  or  factors
    40  listed in paragraph (b) of this subdivision, including:
    41    (i) changes in ownership or service area;
    42    (ii) number of consumers in the service area; and
    43    (iii) any incidents related to noncompliance with applicable state and
    44  federal laws and regulations.
    45    (d)  If  the  commissioner determines that the fiscal intermediary has
    46  failed to comply with the provisions  of  this  section  or  regulations
    47  promulgated  hereunder,  the  department shall provide written notice to
    48  the fiscal intermediary and may impose a penalty of not less  than  five
    49  hundred  dollars and not exceeding one thousand dollars per violation of
    50  non-compliance. Such written notice shall include:
    51    (i) a description of the conduct and the issues related  thereto  that
    52  have been identified as failure of compliance;
    53    (ii) the timeframe of the conduct that fails compliance;
    54    (iii)  required  corrective actions and a timeframe for implementation
    55  of such corrective actions to bring the fiscal intermediary into compli-
    56  ance; and

        A. 9761                             4
     1    (iv) the assigned penalty associated with non-compliance.
     2    (e)  Notwithstanding  the  foregoing,  upon  a  determination that the
     3  public health or safety would be imminently endangered by the  continued
     4  operation  or  actions  of  a  fiscal intermediary, the commissioner may
     5  terminate such fiscal intermediary's registration or  suspend  or  limit
     6  such  fiscal intermediary's rights and privileges under the registration
     7  immediately upon written notice.
     8    (f) All orders or  determinations  under  this  subdivision  shall  be
     9  subject  to  review  as  provided  in article seventy-eight of the civil
    10  practice law and rules.
    11    (g) In order to be issued registration or registration  renewal  as  a
    12  fiscal intermediary, an entity shall:
    13    (i) be willing and able to serve any consumer in the entity's selected
    14  service area;
    15    (ii)  have  and  maintain  an  effective organizational structure with
    16  qualified administrative staff to deliver all the  services  and  ensure
    17  fiscal  intermediary  personnel  have the appropriate training and know-
    18  ledge to fulfill their duties;
    19    (iii) maintain an organizational chart with professional and manageri-
    20  al lines of authority and submit  such  chart  to  the  department  upon
    21  request.    Where  the  fiscal intermediary is also a licensed home care
    22  services agency (LHCSA), maintain adequate firewalls between  the  LHCSA
    23  and  fiscal  intermediary  lines  of business to ensure the avoidance of
    24  actual or perceived conflicts of interest;
    25    (iv) document and maintain written fiscal  intermediary  policies  and
    26  procedures, including policies for administrative staff;
    27    (v) ensure appropriate cultural and linguistic competencies are avail-
    28  able  to serve its consumers and personal assistants that assist consum-
    29  ers;
    30    (vi) maintain a local presence,  commensurate  with  selected  service
    31  areas  to  ensure effective and timely delivery of the services required
    32  pursuant to this subdivision; and
    33    (vii)  establish,  maintain,  and  periodically  review   a   disaster
    34  preparedness and emergency plans and procedures related to the provision
    35  of required services.
    36    (h)  Fiscal  intermediaries  shall submit, in a form determined by the
    37  department, information regarding fiscal monitoring and oversight  meas-
    38  ures undertaken by the fiscal intermediary, including:
    39    (i)  fiscal  procedures adopted by the fiscal intermediary that comply
    40  with generally accepted accounting principles  and  Medicaid  rules  and
    41  regulations, including internal control procedures;
    42    (ii) financial records that facilitate fiscal monitoring and audits;
    43    (iii) fiscal oversight practices;
    44    (iv)  corporate  compliance policies and procedures in accordance with
    45  the federal deficit reduction act and the false claims act  to  prevent,
    46  detect and report fraud, waste and abuse by board members, employees and
    47  consumers, and develop strategies to prevent and detect such fraud; and
    48    (v)  information  regarding  the fiscal intermediary's compliance with
    49  office of Medicaid inspector general compliance program required duties.
    50    (i) (i) In addition to the annual direct care and administrative  cost
    51  reports required by paragraph (k) of this subdivision, the fiscal inter-
    52  mediary  shall submit, in a form and frequency determined by the depart-
    53  ment, a report listing quality measures and other data to assist in  the
    54  evaluation  of the effectiveness and quality of services provided by the
    55  fiscal intermediary. Such report shall include:

        A. 9761                             5
     1    (A) the number of timely processed payroll cycles and the total number
     2  of processed payroll cycles;
     3    (B) the number of accurate paychecks processed and the total number of
     4  paychecks processed each cycle;
     5    (C) the number of days to onboard a personal assistant;
     6    (D)  information  regarding  complaints tracked by the fiscal interme-
     7  diary, including the dates of complaint submission and  resolution,  the
     8  nature of the complaints, how complaints were resolved, and any applica-
     9  ble  corrective  measures  or actions taken to ensure similar complaints
    10  can be avoided;
    11    (E) the total number of referrals made each month by a  local  depart-
    12  ment of social service or managed care organization;
    13    (F)  the  number of times consumer services are suspended for hospital
    14  admission;
    15    (G) information related to social determinants of health, cultural  or
    16  racial disparities or related information; and
    17    (H) any other information deemed appropriate by the department.
    18    (ii)  In addition to the information and data identified in this para-
    19  graph, the fiscal intermediary shall cooperate with other efforts under-
    20  taken by the department to assess fiscal intermediary services,  includ-
    21  ing consumer satisfaction surveys.
    22    (j)  (i)  Fiscal  intermediaries shall demonstrate compliance with all
    23  state privacy, confidentiality, and security policies and standards,  as
    24  well as with all applicable state and federal requirements. In the event
    25  registration  is not renewed or revoked by the department, fiscal inter-
    26  mediaries shall retain all programmatic records,  supporting  documents,
    27  statistical records, and other records related to the delivery of fiscal
    28  intermediary  services for a minimum of six years from the expiration of
    29  such registration.
    30    (ii) Fiscal intermediaries shall implement and maintain plans,  proce-
    31  dures,  policies,  internal  controls,  and  appropriate administrative,
    32  technical, and physical safeguards, consistent with applicable laws  and
    33  rules to ensure the security, confidentiality, integrity, and availabil-
    34  ity  of  personal identifiable information and protected health informa-
    35  tion created, collected, used,  transferred,  and/or  disclosed  by  the
    36  fiscal  intermediary.  At  a  minimum, such plans, procedures, policies,
    37  internal controls, and appropriate administrative, technical, and  phys-
    38  ical safeguards shall ensure:
    39    (A)  the  secure  and  confidential storage of hard copy and electron-
    40  ically stored information;
    41    (B) protected information is  only  used  by  or  disclosed  to  those
    42  authorized to receive or view it;
    43    (C)  protected  information is protected against any reasonably antic-
    44  ipated threats or hazards to the confidentiality, integrity, and  avail-
    45  ability of such information;
    46    (D)  protected  information is protected against any reasonably antic-
    47  ipated uses or disclosures of such information that are not permitted or
    48  required by law; and
    49    (E) protected information is securely destroyed or disposed of  in  an
    50  appropriate and reasonable manner and in accordance with retention sche-
    51  dules.
    52    (iii)  Fiscal intermediaries shall maintain and provide to the depart-
    53  ment upon request their data privacy and security plans and  procedures,
    54  as well as a plan for ensuring compliance with the federal health insur-
    55  ance  portability  and accountability act of nineteen hundred ninety-six
    56  and its implementing regulations. Fiscal intermediaries shall notify the

        A. 9761                             6
     1  department of any breach of privacy or confidentiality upon discovery of
     2  the breach.
     3    (k) (i) The commissioner shall require a fiscal intermediary to report
     4  annually on the direct care and administrative costs of personal assist-
     5  ance  services  as accounted for by the fiscal intermediary. The depart-
     6  ment shall specify the format of such reports, determine  the  type  and
     7  amount  of  information  to  be submitted, and require the submission of
     8  supporting documentation, provided, however, that the  department  shall
     9  provide  no  less  than ninety calendar days' notice before such reports
    10  are due.
    11    (ii) If the department determines that the cost report submitted by  a
    12  provider  is  inaccurate  or incomplete, the department shall notify the
    13  provider in writing and advise the provider of the correction  or  addi-
    14  tional  information  that  the  provider must submit. The provider shall
    15  submit the corrected or additional information  within  thirty  calendar
    16  days from the date the provider receives the notice.
    17    (iii)  The  department  shall  grant  a  provider an additional thirty
    18  calendar days to submit  the  original,  corrected  or  additional  cost
    19  report when the provider, prior to the date the report is due, submits a
    20  written  request  to  the department for an extension and establishes to
    21  the department's satisfaction that the provider cannot submit the report
    22  by the date due for reasons beyond the provider's control.
    23    (iv) All reports shall be certified by the owner, administrator, chief
    24  executive officer, or public official responsible for the  operation  of
    25  the  provider.  The cost report form shall include a certification form,
    26  which shall specify who shall certify the report.
    27    (l) The department shall provide a minimum of  ninety  calendar  days'
    28  notice  to  fiscal  intermediaries  prior  to  collecting any reports or
    29  information required pursuant to paragraphs (h), (i),  (j)  and  (k)  of
    30  this  subdivision,  provided  however that the effective date of initial
    31  registration issued by the department  shall  serve  as  notice  to  the
    32  fiscal  intermediary  that  the department will be collecting an initial
    33  report and/or information pursuant to this subdivision.
    34    § 4. Subdivision 4-c of section 365-f of the social  services  law  is
    35  REPEALED and subdivision 4-d is renumbered subdivision 4-c.
    36    §  5.  Subdivision 4-c of section 365-f of the social services law, as
    37  added by section 7 of part G of chapter 57 of the laws  of  2019,  para-
    38  graph (d) as added and paragraphs (e) and (f) as relettered by section 3
    39  of part LL of chapter 57 of the laws of 2021, and such section as renum-
    40  bered by section four of this act, is amended to read as follows:
    41    4-c.  Fiscal  intermediaries  ceasing  operation.  (a)  Where a fiscal
    42  intermediary is ceasing operation or will no longer serve the consumer's
    43  area, the fiscal intermediary shall:
    44    (i) deliver written notice forty-five calendar days in advance to  the
    45  affected  consumers,  consumer representatives, personal assistants, the
    46  department, and any local social  services  districts  or  managed  care
    47  plans  with which the fiscal intermediary [contracts] registers.  Within
    48  five business days of receipt of the notice, the local  social  services
    49  district  or  managed care plan shall acknowledge the notice and provide
    50  the affected consumers with a list of other fiscal intermediaries  oper-
    51  ating in the same county or managed care plan network as appropriate;
    52    (ii)  not take any action that would prevent a personal assistant from
    53  moving to a new  fiscal  intermediary  of  the  consumer's  choice,  nor
    54  require  the  consumer or the personal assistant to switch to a personal
    55  care or home health care program not under this section; and

        A. 9761                             7
     1    (iii) upon request and consent, promptly transfer all records relating
     2  to the individual's health and care authorizations, and personnel  docu-
     3  ments  to  the  fiscal intermediary or personal care or home health care
     4  provider chosen by the consumer and assume all liability  for  omissions
     5  or errors in such records.
     6    (b)  Where a consumer is electing to transfer his or her services to a
     7  new fiscal intermediary or a personal care or home health care  provider
     8  by  the  consumer's  independent  choice,  the fiscal intermediary being
     9  discontinued shall comply with subparagraphs (ii) and (iii) of paragraph
    10  (a) of this subdivision.
    11    (c) Where a fiscal intermediary is  suspending  or  ceasing  operation
    12  pursuant  to  an order under subdivision four-b of this section[, or has
    13  failed to submit an  offer  for  a  contract,]  or  has  been  denied  a
    14  [contract]  registration  under this section, all the provisions of this
    15  subdivision shall apply except subparagraph (i) of paragraph (a) of this
    16  subdivision, notice of which to all parties shall  be  provided  by  the
    17  department as appropriate.
    18    (d)  where  a  fiscal  intermediary is acquired by, merges with, sells
    19  assets to, or engages in a transaction of a similar nature with a fiscal
    20  intermediary that was [awarded a contract] registered pursuant to subdi-
    21  vision four-a of this section, all the provisions  of  this  subdivision
    22  shall apply. In providing notice under subparagraph (i) of paragraph (a)
    23  of  this  subdivision,  the  fiscal  intermediary  may inform the notice
    24  recipient of the applicable transaction and, if applicable, the  ability
    25  of  the  consumer  to  remain  with  the  awarded fiscal intermediary in
    26  accordance with any guidance issued by the commissioner.
    27    (e) The local social services district or managed care plan, as appro-
    28  priate, shall supervise the  transition  of  services  and  transfer  of
    29  records  and maintain provision of services by the personal assistant(s)
    30  chosen by the individual.
    31    (f) Any transfer under this subdivision shall not diminish any  of  an
    32  individual's  rights  relating to continuity of care, utilization review
    33  or fair hearing appeals and aid continuing.
    34    § 6. Subparagraph (ii) of paragraph (c) of subdivision  9  of  section
    35  365-f  of  the  social services law, as added by section 24 of part C of
    36  chapter 60 of the laws of 2014, is amended to read as follows:
    37    (ii) The commissioner may require that applications submitted pursuant
    38  to this subdivision be submitted in response to and in  accordance  with
    39  [a  request  for  applications  or a request for proposals issued by the
    40  commissioner] registration requirements  established  pursuant  to  this
    41  section.
    42    §  7.  The  commissioner  of  health shall take the necessary steps to
    43  repeal subdivision (k) of section 505.28 of title 18  of  the  New  York
    44  codes, rules, and regulations.
    45    §  8. This act shall take effect six months after it shall have become
    46  a law. Effective immediately, the addition, amendment and/or  repeal  of
    47  any  rule  or regulation necessary for the implementation of this act on
    48  its effective date are authorized to be made and completed on or  before
    49  such effective date.
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