Senate One House Bill is Available!

March 11, 2024
REALLY GOOD early results in the Senate bill that was just released:
  • The Senate budget bill supports COLA being increased to 3.2 % (from Governor’s original proposal of 1.5%). The Senate Health/Mental Hygiene (HMH) Article VII language states that the COLA can only be used for wages and salaries for non-executive staff.  “…the funding received will be used solely to increase the hourly and/or salary wages of non-executive direct care staff, direct support professionals, and non-executive clinical staff.”  We will work to get further details first thing in the a.m.
  • Senate one-house rejects the Governor’s Competitive Procurement proposal, however it also rejects an executive proposal that would have increased fines on health plans for failure to comply with terms of the Model Contract (contains the rules of the road for the carve-in of certain Medicaid services provided to special needs populations, including mental health and substance use disorder services that were carved in to the MMC Program in 2015-2017).
  • Senate one-house bill includes a proposal that would require at least 10% of opioid stewardship funds be invested in recovery services and supports, to supplement not replace other funds. Adds a reporting requirement. See page 8 of Senate Resolution (attached)
  • Senate one-house appears to add FQHCs to the list of provider types that would receive a telehealth rate equal to the face-to-face rate for FQ services. See page 7 of Senate Resolution (attached)
  • The Senate budget bill INCLUDES our our commercial rate mandate proposal (Part AA) !  Looks like our language!!
  • The Senate included OMIG Audit Reform language although it does not appear to be a direct cut and paste from the language we have developed with our attorneys.  
We need to do a side-by-side to understand what if ANY language is different from the original proposals, but the really good news is that all of these proposals are included in the Senate one-house bill and this puts them in play for final budget negotiations.
 
I’ve pasted the Senate language for each of the three proposals (discussed above) below:
 
Senate COLA language
PART FF — HUMAN SERVICES COLA
Section  1.  Section  3  of  part A of chapter 111 of the laws of 2010
33
34  director  of  the  budget,  the  commissioners  of  the office of mental
35  health, office for people with  developmental  disabilities,  office  of
36  addiction  services  and  supports,  office  of temporary and disability
37  assistance, office of children and family services, the state office for
38  the aging, the state education department, the department of health, and
39  the director of the office of victim services, shall establish  a  state
40  fiscal  year 2024-2025 cost of living adjustment (COLA), effective April
41  1, 2024, for projecting for the  effects  of  inflation  upon  rates  of
42  payments, contracts, or any other form of reimbursement for the programs
43  and  services  listed  in  paragraphs (i), (ii), (iii), (iv), (v), (vi),
44  (vii), (viii), and (ix) of subdivision three of this section.  The  COLA
45  established  herein shall be applied to the appropriate portion of reim-
46  bursable costs or contract amounts. Where appropriate, transfers to  the
Section 1. 1. Subject to available appropriations and approval of  the

3/11/24, 9:41 PM Legislative Information – LBDC

S. 8307–B 66

 1  department  of health (DOH) shall be made as reimbursement for the state
 2  share of medical assistance.
 3    2.  Notwithstanding  any inconsistent provision of law, subject to the
 4  approval of the director of  the  budget  and  available  appropriations
 5  therefore,  for  the period of April 1, 2024 through March 31, 2025, the
 6  commissioners and directors shall provide funding to support a three and
 7  two-tenths percent (3.2%) cost of living adjustment under  this  section
 8  for  all eligible programs and services as determined pursuant to subdi-
 9  vision four of this section.
10    3. Eligible programs and services. (i) Programs and  services  funded,
11  licensed, or certified by the office of mental health (OMH) eligible for
12  the  cost  of  living  adjustment  established  herein,  pending federal
13  approval where applicable, include: office  of  mental  health  licensed
14  outpatient programs, pursuant to parts 587 and 599 of title 14 CRR-NY of
15  the office of mental health regulations including clinic, continuing day
16  treatment,  day  treatment,  intensive  outpatient  programs and partial
17  hospitalization;  outreach;  crisis  residence;  crisis   stabilization,
18  crisis/respite  beds;  mobile crisis, part 590 comprehensive psychiatric
19  emergency program  services;  crisis  intervention;  home  based  crisis
20  intervention;  family  care;  supported single room occupancy; supported
21  housing; supported housing  community  services;  treatment  congregate;
22  supported   congregate;   community  residence  -  children  and  youth;
23  treatment/apartment; supported  apartment;  community  residence  single
24  room occupancy; on-site rehabilitation; employment programs; recreation;
25  respite  care;  transportation;  psychosocial  club; assertive community
26  treatment; case management; care  coordination,  including  health  home
27  plus  services;  local  government  unit  administration; monitoring and
28  evaluation; children and youth  vocational  services;  single  point  of
29  access;  school-based mental health program; family support children and
30  youth; advocacy/support services; drop  in  centers;  recovery  centers;
31  transition management services; bridger; home and community based waiver
32  services;  behavioral  health waiver services authorized pursuant to the
33  section 1115 MRT waiver; self-help programs; consumer  service  dollars;
34  conference  of local mental hygiene directors; multicultural initiative;
35  ongoing integrated supported employment services;  supported  education;
36  mentally   ill/chemical  abuse  (MICA)  network;  personalized  recovery
37  oriented services; children and family treatment and  support  services;
38  residential treatment facilities operating pursuant to part 584 of title
39  14-NYCRR;   geriatric  demonstration  programs;  community-based  mental
40  health family treatment  and  support;  coordinated  children's  service
41  initiative; homeless services; and promises zone.
42    (ii)  Programs  and  services  funded,  licensed,  or certified by the
43  office for people with developmental disabilities (OPWDD)  eligible  for
44  the  cost  of  living  adjustment  established  herein,  pending federal
45  approval where applicable, include: local/unified services; chapter  620
46  services;  voluntary operated community residential services; article 16
47  clinics; day treatment  services;  family  support  services;  100%  day
48  training;  epilepsy services; traumatic brain injury services; hepatitis
49  B services;  independent  practitioner  services  for  individuals  with
50  intellectual  and/or  developmental  disabilities;  crisis  services for
51  individuals with intellectual and/or developmental disabilities;  family
52  care  residential  habilitation;  supervised  residential  habilitation;
53  supportive residential habilitation; respite; day habilitation; prevoca-
54  tional services; supported employment; community habilitation;  interme-
55  diate  care  facility  day and residential services; specialty hospital;
56  pathways to employment; intensive behavioral services; basic  home   and

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S. 8307–B 67

 1  community   based  services  (HCBS)  plan  support; health home services
 2  provided  by  care   coordination   organizations; community  transition
 3  services;  family  education  and training; fiscal intermediary; support
 4  broker; and personal resource accounts.
 5    (iii)  Programs  and  services  funded,  licensed, or certified by the
 6  office of addiction services and supports (OASAS) eligible for the  cost
 7  of  living adjustment established herein, pending federal approval where
 8  applicable, include: medically supervised withdrawal services - residen-
 9  tial; medically supervised withdrawal services -  outpatient;  medically
10  managed  detoxification; medically monitored withdrawal; inpatient reha-
11  bilitation services; outpatient  opioid  treatment;  residential  opioid
12  treatment; KEEP units outpatient; residential opioid treatment to absti-
13  nence;  problem  gambling  treatment;  medically  supervised outpatient;
14  outpatient  rehabilitation;   specialized   services   substance   abuse
15  programs;  home and community based waiver services pursuant to subdivi-
16  sion 9 of section 366 of the social services law;  children  and  family
17  treatment and support services; continuum of care rental assistance case
18  management;  NY/NY  III  post-treatment  housing;  NY/NY III housing for
19  persons at risk for homelessness;  permanent  supported  housing;  youth
20  clubhouse;  recovery  community  centers;  recovery community organizing
21  initiative; residential rehabilitation services for youth (RRSY); inten-
22  sive residential; community residential; supportive living;  residential
23  services;  job  placement  initiative;  case  management; family support
24  navigator; local government unit administration; peer engagement;  voca-
25  tional   rehabilitation;   support   services;  HIV  early  intervention
26  services; dual diagnosis coordinator; problem gambling resource centers;
27  problem  gambling  prevention;  prevention  resource  centers;   primary
28  prevention  services; other prevention services; community services, and
29  addiction treatment centers.
30    (iv) Programs and services  funded,  licensed,  or  certified  by  the
31  office  of  temporary  and disability assistance (OTDA) eligible for the
32  cost of living adjustment established herein, pending  federal  approval
33  where  applicable,  include:  nutrition  outreach  and education program
34  (NOEP), community  action  agencies;  New York state supportive  housing
35  program;  solutions to end homelessness program; and  state supplemental
36  nutrition assistance program outreach program.
37    (v) Programs and services funded, licensed, or certified by the office
38  of children and family services (OCFS) eligible for the cost  of  living
39  adjustment  established  herein, pending federal approval where applica-
40  ble, include: programs for which  the  office  of  children  and  family
41  services  establishes  maximum state aid rates pursuant to section 398-a
42  of the social services law and section 4003 of the education law;  emer-
43  gency  foster homes; foster family boarding homes and therapeutic foster
44  homes; supervised settings  as  defined  by  subdivision  twenty-two  of
45  section  371  of  the  social  services  law; adoptive parents receiving
46  adoption subsidy pursuant to section 453 of  the  social  services  law;
47  congregate  and  scattered  supportive  housing  programs and supportive
48  services provided under the NY/NY III supportive  housing  agreement  to
49  young  adults  leaving  or  having  recently left foster care; advantage
50  after-school program; child care resource and referral agencies;  empire
51  state after-school program; healthy families New York; maternal, infant,
52  and  early childhood home visiting initiative; New York state commission
53  for    the   blind; residential and   non-residential domestic  violence
54  services and  preventative services as defined by  section  409  of  the
55  social services law.

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S. 8307–B 68

 1    (vi) Programs and services funded, licensed, or certified by the state
 2  office  for  the aging (SOFA) eligible for the cost of living adjustment
 3  established herein, pending federal approval where applicable,  include:
 4  community  services  for  the elderly; expanded in-home services for the
 5  elderly;  supplemental  nutrition  assistance program; New York connects
 6  program; long term ombudsman program;  Medicaid transportation  program;
 7  naturally     occurring  retirement  communities  (NORCs);  neighborhood
 8  naturally occurring retirement  communities (NNORCs);  and  social adult
 9  day services program.
10    (vii)  Programs  and  services  funded,  licensed, or certified by the
11  state education department eligible for the cost  of  living  adjustment
12  established  herein, pending federal approval where applicable, include:
13  community schools; adult literacy education  programs;  and  independent
14  living centers.
15    (viii)  Programs  and  services  funded, licensed, or certified by the
16  office of victim services eligible for the  cost  of  living  adjustment
17  established  herein, pending federal approval where applicable, include:
18  crime victim service programs as defined by section 631-a of the  execu-
19  tive law.
20    (ix)  Programs  and  services  funded,  licensed,  or certified by the
21  department  of health eligible for the cost of living  adjustment estab-
22  lished  herein,  pending  federal  approval  where  applicable, include:
23  health home care management agencies authorized under section 365-l   of
24  the social services law; and rape crisis programs.
25    4.  Each  local  government unit or direct contract provider receiving
26  funding for the cost  of  living  adjustment  established  herein  shall
27  submit  a  written  certification, in such form and at such time as each
28  commissioner shall prescribe, attesting how such funding will be or  was
29  used  for purposes eligible under this section. Further, providers shall
30  submit a resolution   from   their governing  body  to  the  appropriate
31  commissioner  or director, attesting that the funding received  will  be
32  used solely to increase the hourly and/or salary wages of  non-executive
33  direct  care staff, non-executive direct support professionals, and non-
34  executive clinical staff.
35    5. Notwithstanding any inconsistent provision of law to the  contrary,
36  agency  commissioners shall be authorized to recoup funding from a local
37  governmental unit or direct contract provider for  the  cost  of  living
38  adjustment  established  herein determined to have been used in a manner
39  inconsistent with the appropriation, or  any  other  provision  of  this
40  section.  Such  agency  commissioners  shall be authorized to employ any
41  legal mechanism to recoup such funds, including an offset of other funds
42  that are owed to such local governmental unit or direct contract provid-
43  er.
44    § 2. This act shall take effect immediately and  shall  be  deemed  to
45  have been in full force and effect on and after April 1, 2024.
 
--------------
SENATE COMMERCIAL RATE MANDATE -- PART AA
 
     2    Section  1.  Paragraph  31  of  subsection  (i) of section 3216 of the
     3  insurance law is amended by adding a new subparagraph  (J)  to  read  as
     4  follows:
     5    (J) This subparagraph shall apply to facilities in this state that are
     6  licensed,  certified, or otherwise authorized by the office of addiction
     7  services and supports for the provision of outpatient, intensive  outpa-
     8  tient,  outpatient  rehabilitation and opioid treatment that are partic-
     9  ipating in the insurer's provider  network.  Reimbursement  for  covered
    10  outpatient treatment provided by such facilities shall be at a rate that
    11  is not less than the rate that would be paid for such treatment pursuant
    12  to  the medical assistance program under title eleven of article five of
    13  the social services law.
    14    § 2. Paragraph 35 of subsection (i) of section 3216 of  the  insurance
    15  law is amended by adding a new subparagraph (K) to read as follows:
    16    (K)  This subparagraph shall apply to outpatient treatment provided in
    17  a facility issued an operating certificate by the commissioner of mental
    18  health pursuant to the provisions of article thirty-one  of  the  mental
    19  hygiene  law,  or in a facility operated by the office of mental health,
    20  or in a crisis stabilization center licensed pursuant to  section  36.01
    21  of  the  mental  hygiene  law,  that  is  participating in the insurer's
    22  provider  network.  Reimbursement  for  covered   outpatient   treatment
    23  provided by such a facility shall be at a rate that is not less than the
    24  rate  that  would  be  paid  for  such treatment pursuant to the medical
    25  assistance program under title eleven of  article  five  of  the  social
    26  services law.
    27    §  3.  Paragraph  5 of subsection (l) of section 3221 of the insurance
    28  law is amended by adding a new subparagraph (K) to read as follows:
    29    (K) This subparagraph shall apply to outpatient treatment provided  in
    30  a facility issued an operating certificate by the commissioner of mental
    31  health  pursuant  to  the provisions of article thirty-one of the mental
    32  hygiene law, or in a facility operated by the office of  mental  health,
    33  or  in  a crisis stabilization center licensed pursuant to section 36.01
    34  of the mental hygiene  law,  that  is  participating  in  the  insurer's
    35  provider   network.   Reimbursement  for  covered  outpatient  treatment
    36  provided by such a facility shall be at a rate that is not less than the
    37  rate that would be paid for  such  treatment  pursuant  to  the  medical
    38  assistance  program  under  title  eleven  of article five of the social
    39  services law.
    40    § 4. Paragraph 7 of subsection (l) of section 3221  of  the  insurance
    41  law is amended by adding a new subparagraph (J) to read as follows:
    42    (J) This subparagraph shall apply to facilities in this state that are
    43  licensed,  certified, or otherwise authorized by the office of addiction
    44  services and supports for the provision of outpatient, intensive  outpa-
    45  tient,  outpatient  rehabilitation and opioid treatment that are partic-
    46  ipating in the insurer's provider  network.  Reimbursement  for  covered
    47  outpatient treatment provided by such facilities shall be at a rate that
    48  is not less than the rate that would be paid for such treatment pursuant
    49  to  the medical assistance program under title eleven of article five of
    50  the social services law.
    51    § 5. Subsection (g) of section 4303 of the insurance law is amended by
    52  adding a new paragraph 12 to read as follows:
    53    (12) This paragraph shall apply to outpatient treatment provided in  a
    54  facility  issued  an operating certificate by the commissioner of mental
    55  health pursuant to the provisions of article thirty-one  of  the  mental

 

        S. 8307--B                         64
 
     1  hygiene  law,  or in a facility operated by the office of mental health,
     2  or in a crisis stabilization center licensed pursuant to  section  36.01
     3  of  the  mental  hygiene law, that is participating in the corporation's
     4  provider   network.   Reimbursement  for  covered  outpatient  treatment
     5  provided by such facility shall be at a rate that is not less  than  the
     6  rate  that  would  be  paid  for  such treatment pursuant to the medical
     7  assistance program under title eleven of  article  five  of  the  social
     8  services law.
     9    § 6. Subsection (l) of section 4303 of the insurance law is amended by
    10  adding a new paragraph 10 to read as follows:
    11    (10)  This  paragraph shall apply to facilities in this state that are
    12  licensed, certified, or otherwise authorized by the office of  addiction
    13  services  and supports for the provision of outpatient, intensive outpa-
    14  tient, outpatient rehabilitation and opioid treatment that  are  partic-
    15  ipating in the corporation's provider network. Reimbursement for covered
    16  outpatient treatment provided by such facilities shall be at a rate that
    17  is not less than the rate that would be paid for such treatment pursuant
    18  to  the medical assistance program under title eleven of article five of
    19  the social services law.
    20    § 7. This act shall take effect January 1, 2025  and  shall  apply  to
    21  policies and contracts issued, renewed, modified, altered, or amended on
    22  and after such date.
 
—————–
 
OMIG AUDIT REFORM LANGUAGE
 

New Part AAA as follows:

 
PART AAA
 
    49    Section 1. Section 30-a of the public health law, as added by  chapter
    50  442 of the laws of 2006, is amended to read as follows:
    51    §  30-a.  Definitions.  For  the purposes of this title, the following
    52  definitions shall apply:
    53    1. "Abuse" means provider practices that are inconsistent  with  sound
    54  fiscal, business or medical practices, and result in an unnecessary cost

 

        S. 8307--B                         96
 
     1  to  the  Medicaid program, or in reimbursement for services that are not
     2  medically necessary or that fail to meet professionally recognized stan-
     3  dards for health care.  It  also  includes  beneficiary  practices  that
     4  result in unnecessary cost to the Medicaid program.
     5    2.  "Creditable allegation of fraud" (a) means an allegation which has
     6  been verified by the inspector,  from  any  source,  including  but  not
     7  limited to the following:
     8    i. fraud hotlines tips verified by further evidence;
     9    ii. claims data mining; and
    10    iii.  patterns  identified through provider audits, civil false claims
    11  cases, and law enforcement investigations.
    12    (b) allegations are considered to be credible when they have an  indi-
    13  cia of reliability and the inspector has reviewed all allegations, facts
    14  and evidence carefully and acts judiciously on a case-by-case basis.
    15    3. "Fraud" means an intentional deception or misrepresentation made by
    16  a  person  with  the  knowledge  that the deception or misrepresentation
    17  could result in some unauthorized benefit to the person  or  some  other
    18  person.    It  includes  any act that constitutes fraud under applicable
    19  federal or state law.
    20    4. "Inspector" means the Medicaid inspector general  created  by  this
    21  title.
    22    [2.] 5. "Investigation" means investigations of fraud, abuse, or ille-
    23  gal acts perpetrated within the medical assistance program, by providers
    24  or recipients of medical assistance care, services and supplies.
    25    6.  "Medical  assistance,"  "Medicaid," and "recipient" shall have the
    26  same meaning as those terms in title  eleven  of  article  five  of  the
    27  social  services  law  and shall include any payments to providers under
    28  any Medicaid managed care program.
    29    [3.] 7. "Office" means the office of the  Medicaid  inspector  general
    30  created by this title.
    31    8.  "Overpayment" shall mean any amount paid to a provider for medical
    32  assistance in excess of the  amount  allowable  for  services  furnished
    33  under  section  nineteen  hundred two of the federal social security act
    34  and which is required to be  refunded  under  section  nineteen  hundred
    35  three of such act.
    36    9. "Provider" means any person or entity enrolled as a provider in the
    37  medical assistance program.
    38    §  2.  Subdivision 20 of section 32 of the public health law, as added
    39  by chapter 442 of the laws of 2006, is amended to read as follows:
    40    20. to, consistent with [provisions  of]  this  title  and  applicable
    41  federal laws, regulations, policies, guidelines and standards, implement
    42  and  amend, as needed, rules and regulations relating to the prevention,
    43  detection, investigation and referral of  fraud  and  abuse  within  the
    44  medical  assistance  program  and  the  recovery  of improperly expended
    45  medical assistance program funds;
    46    § 3. The public health law is amended by adding two  new  sections  37
    47  and 38 to read as follows:
    48    §  37. Audit and recovery of medical assistance payments to providers.
    49  Any audit or review of any provider  contracts,  cost  reports,  claims,
    50  bills,  or  medical  assistance payments by the inspector, anyone desig-
    51  nated by the inspector or otherwise lawfully authorized to conduct  such
    52  audit  or  review, or any other agency with jurisdiction to conduct such
    53  audit or review, shall comply with the following standards:
    54    1. Recovery of any overpayment resulting from any audit or  review  of
    55  provider  contracts,  cost reports, claims, bills, or medical assistance
    56  payments shall not commence prior to sixty days after  delivery  to  the

 

        S. 8307--B                         97
 
     1  provider  of  a  final audit report or final notice of agency action, or
     2  where the provider requests a hearing or appeal  within  sixty  days  of
     3  delivery  of  the  final  audit report or final notice of agency action,
     4  until a final determination of such hearing or appeal is made.
     5    2.  Provider contracts, cost reports, claims, bills or medical assist-
     6  ance payments that were the subject matter of a previous audit or review
     7  within the last three years shall not be  subject  to  review  or  audit
     8  again  except on the basis of new information, for good cause to believe
     9  that the previous review or audit was erroneous, or where the  scope  of
    10  the  inspector's  review  or  audit  is significantly different from the
    11  scope of the previous review or audit.
    12    3. Any reviews or audits of provider contracts, cost reports,  claims,
    13  bills  or  medical assistance payments shall apply the state laws, regu-
    14  lations and the applicable, duly promulgated policies, guidelines, stan-
    15  dards, protocols and interpretations of state agencies with jurisdiction
    16  and in effect at the time the provider engaged in the  applicable  regu-
    17  lated  conduct or provision of services.  For the purpose of this subdi-
    18  vision, the state law, regulation or the applicable  promulgated  agency
    19  policy,  guideline,  standard,  protocol  or interpretation shall not be
    20  deemed in effect if federal governmental approval is pending or  denied.
    21  The  inspector  shall  publish protocols applicable to and governing any
    22  audit or review of a   provider or  provider  contracts,  cost  reports,
    23  claims,  bills  or medical assistance payments on the office of Medicaid
    24  inspector general website.
    25    4. (a) In the event of any overpayment based upon a provider's  admin-
    26  istrative  or  technical  error,  the  provider shall have the longer of
    27  sixty days from notice of the mistake or six  years  from  the  date  of
    28  service to submit a corrected claim provided (i) the error was a genuine
    29  error without intent to falsify or defraud, (ii) the provider maintained
    30  contemporaneous  documentation to substantiate the correct claims infor-
    31  mation, (iii) such error is the sole basis for the finding of  an  over-
    32  payment,  and (iv) there is no finding of any overpayment for such error
    33  by a federal agency or official.
    34    (b) No overpayment shall be calculated for any administrative or tech-
    35  nical error corrected as required in paragraph (a) of this subdivision.
    36    (c) "Administrative or technical error" shall include any  error  that
    37  constitutes  either a (i) minor error or omission or (ii) clerical error
    38  or omission under the Medicare modernization act or centers for Medicaid
    39  and Medicaid service regulations, and shall include human  and  clerical
    40  errors that result in errors as to form or content of a claim.
    41    5. (a) In determining the amount of any overpayment to a provider, the
    42  inspector shall  utilize sampling and extrapolation consistent  with the
    43  Centers  for Medicare and Medicaid services policies as described in the
    44  Centers for Medicare and Medicaid program integrity manual.
    45    (b) The final audit report or final  notice  of  agency  action  shall
    46  include  a statement of the specific factual and legal basis for utiliz-
    47  ing extrapolation and the inappropriate use of extrapolation shall be  a
    48  basis  for  appeal. This subdivision shall not be construed to limit the
    49  recoupment of an overpayment identified  without  the  use  of  extrapo-
    50  lation.
    51    (c)  Until  the  provider  has  waived its right to a hearing, or if a
    52  provider requests a hearing, until the hearing determination is  issued,
    53  the provider shall have the right to pay the lower confidence limit plus
    54  applicable  interest  in  fulfillment  of this paragraph, the applicable
    55  lower confidence limit shall be calculated using  at  least  a    ninety
    56  percent confidence level.

 

        S. 8307--B                         98
 
     1    6. (a) The provider shall be provided as part of the draft audit find-
     2  ings   a  detailed  written  explanation  of  the  extrapolation  method
     3  employed, including the size of the sample,  the  sampling  methodology,
     4  the  defined  universe  of  claims,  the specific claims included in the
     5  sample,  the results of the sample, the assumptions made about the accu-
     6  racy and reliability of the sample and the level of  confidence  in  the
     7  sample  results,  and  the  steps undertaken and statistical methodology
     8  utilized to calculate the alleged overpayment and any applicable  offset
     9  based  on  the  sample results. This written information shall include a
    10  description of the sampling and extrapolation methodology.
    11    (b) The sampling  and  extrapolation  methodologies  utilized  by  the
    12  inspector  shall be consistent with accepted standards of sound auditing
    13  practice and statistical analysis.
    14    7. The requirements of this section shall  be  interpreted  consistent
    15  with  and  subject to any applicable federal law, rules and regulations,
    16  or binding federal agency guidance and directives.  The  requirements of
    17  this section shall not apply to any investigation by the inspector where
    18  there is credible allegations of fraud or where there is a finding  that
    19  the  provider  has engaged in deliberate abuse of the medical assistance
    20  program.
    21    § 38. Procedures, practices and  standards  for  recipients.  1.  This
    22  section  applies  to  any adjustment or recovery of a medical assistance
    23  payment from a recipient, and  any  investigation  or  other  proceeding
    24  relating thereto.
    25    2.  At least five business days prior to commencement of any interview
    26  with a recipient as part of an investigation,  the  inspector  or  other
    27  investigating  entity shall provide the recipient with written notice of
    28  the investigation. The notice of the investigation shall set  forth  the
    29  basis  for  the  investigation;  the potential for referral for criminal
    30  investigation; the individual's right to be accompanied by  a  relative,
    31  friend, advocate or attorney during questioning; contact information for
    32  local  legal  services  offices; the individual's right to decline to be
    33  interviewed or participate in an interview but terminate the questioning
    34  at any time without loss of benefits; and the right to a fair hearing in
    35  the event that the investigation results in a determination of incorrect
    36  payment.
    37    3. Following completion of the investigation and at least thirty  days
    38  prior to commencing a recovery or adjustment action or requesting volun-
    39  tary  repayment,  the  inspector  or  other  investigating  entity shall
    40  provide the recipient with written notice of the determination of incor-
    41  rect payment to be recovered or adjusted. The  notice  of  determination
    42  shall  identify  the evidence relied upon, set forth the factual conclu-
    43  sions of the investigation, and explain the recipient's right to request
    44  a fair hearing in order to contest the outcome of the investigation. The
    45  explanation of the right to a fair hearing shall conform to the require-
    46  ments of subdivision twelve of section twenty-two of the social services
    47  law and regulations thereunder.
    48    4. A fair hearing under section twenty-two of the social services  law
    49  shall  be  available  to any recipient who receives a notice of determi-
    50  nation under subdivision three of this section,  regardless  of  whether
    51  the recipient is still enrolled in the medical assistance program.
    52    §  4.  Paragraph  (c)  of subdivision 3 of section 363-d of the social
    53  services law, as amended by section 4 of part V of  chapter  57  of  the
    54  laws  of  2019,  is  amended and a new subdivision 8 is added to read as
    55  follows:

 

        S. 8307--B                         99
 
     1    (c) In the event that the  commissioner  of  health  or  the  Medicaid
     2  inspector  general  finds that the provider does not have a satisfactory
     3  program [within ninety days after the effective date of the  regulations
     4  issued  pursuant  to subdivision four of this section], the commissioner
     5  or  Medicaid  inspector  general shall so notify the provider, including
     6  specification of the basis of  the  finding  sufficient  to  enable  the
     7  provider  to adopt a satisfactory compliance program. The provider shall
     8  submit to the commissioner or  Medicaid  inspector  general  a  proposed
     9  satisfactory  compliance  program  within  sixty  days of the notice and
    10  shall adopt the program as expeditiously as possible.  If  the  provider
    11  does  not  propose and adopt a satisfactory program in such time period,
    12  the provider may be subject to any sanctions or penalties  permitted  by
    13  federal  or  state  laws  and  regulations,  including revocation of the
    14  provider's agreement to participate in the medical assistance program.
    15    8. Any regulation, determination or finding of the commissioner or the
    16  Medicaid inspector general relating to a compliance program  under  this
    17  section  shall  be  subject  to and consistent with subdivision three of
    18  this section.
    19    § 5. Section 32 of the public health law is amended by  adding  a  new
    20  subdivision 6-b to read as follows:
    21    6-b.  to consult with the commissioner on the preparation of an annual
    22  report, to be made and filed by the commissioner on or before the  first
    23  day  of July to the governor, the temporary president of the senate, the
    24  speaker of the assembly, the minority leader of the senate, the minority
    25  leader of the assembly, the commissioner, the commissioner of the office
    26  of addiction services and supports, and the commissioner of  the  office
    27  of  mental  health  on  the  impacts  that  all civil and administrative
    28  enforcement actions taken under subdivision six of this section  in  the
    29  previous  calendar year will have and have had on the quality and avail-
    30  ability of medical care and services, the best  interests  of  both  the
    31  medical  assistance  program  and its recipients, and fiscal solvency of
    32  the providers who were subject to the civil or  administrative  enforce-
    33  ment action;
    34    §  6.  This  act  shall take effect immediately and shall be deemed to
    35  have been in full force and effect on and after April 1, 2024.
    36    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
    37  sion, section or part of this act shall be  adjudged  by  any  court  of
    38  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    39  impair, or invalidate the remainder thereof, but shall  be  confined  in
    40  its  operation  to the clause, sentence, paragraph, subdivision, section
    41  or part thereof directly involved in the controversy in which such judg-
    42  ment shall have been rendered. It is hereby declared to be the intent of
    43  the legislature that this act would  have  been  enacted  even  if  such
    44  invalid provisions had not been included herein.
    45    §  3.  This  act shall take effect immediately provided, however, that
    46  the applicable effective date of Parts A through AAA of this  act  shall
    47  be as specifically set forth in the last section of such Parts.