Update on Legislation of Import to NYS Council members

May 25, 2021

Earlier today the Assembly Higher Ed Committee moved A7405A moved forward. This is a bill sponsored by Assemblyman Harry Bronson that would extend the clinical practice exemption for our workforce for one year from the point at which the current exemption expires, or June 24, 2022.  The ‘same as’ bill, S6431 sponsored by Senator Brouk (Harckham is co-sponsor) is in the Senate Rules Committee awaiting action.

Also, today Senator Harckham’s office amended a Senate OMIG Reform bill.  S4486A.  We anticipate Assemblyman Gottfried will again sponsor an Assembly bill on this topic (no bill number yet but we know it is coming).  Below please find the amended Senate OMIG Reform bill for your information.   Of course the bill is subject to further amendments.  

Below that, please find the text of another important bill sponsored by Senator Harckham S5066A;  ‘Same as’ in the Assembly is A7419A (Jackson).  Addresses how any extraordinary federal funds received by OASAS providers is to be counted (or not) as a source of revenue. 

OMIG Reform

                               2021-2022 Regular Sessions
                    IN SENATE
                                    February 5, 2021
        Introduced  by Sen. HARCKHAM -- read twice and ordered printed, and when
          printed to be committed  to  the  Committee  on  Health  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
        AN  ACT  to  amend the public health law and the social services law, in
          relation to the functions  of  the  Medicaid  inspector  general  with
          respect  to  audit  and review of medical assistance program funds and
          requiring notice of certain investigations
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1. Section 30-a of the public health law is amended by adding
     2  four new subdivisions 4, 5, 6 and 7 to read as follows:
     3    4. "Provider" means any person or entity enrolled as a provider in the
     4  medical assistance program.
     5    5. "Recipient" means an individual who  is  enrolled  in  the  medical
     6  assistance program, including an individual who was previously a recipi-
     7  ent  and, in an appropriate case, an individual who is legally responsi-
     8  ble for the recipient.
     9    6. "Medical assistance" and "Medicaid" means title eleven  of  article
    10  five of the social services law and the program thereunder.
    11    7.  "Draft  audit report", "initial audit report", "proposed notice of
    12  agency action" and "final notice of agency action" means those documents
    13  prepared and issued by the inspector under this title and  corresponding
    14  regulations.
    15    §  2.  Subdivision 20 of section 32 of the public health law, as added
    16  by chapter 442 of the laws of 2006, is amended to read as follows:
    17    20. to, consistent with [provisions  of]  this  title  and  applicable
    18  federal and state laws, regulations, policies, guidelines and standards,
    19  implement  and  amend,  as needed, rules and regulations relating to the
    20  prevention, detection, investigation and referral  of  fraud  and  abuse
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [] is old law to be omitted.
        S. 4486--A                          2
     1  within  the  medical  assistance  program and the recovery of improperly
     2  expended medical assistance program funds;
     3    §  3.  The  public health law is amended by adding two new sections 37
     4  and 38 to read as follows:
     5    § 37. Procedures, practices and standards.  1. Subject to federal  law
     6  or regulation, recovery of an overpayment resulting from the issuance of
     7  a  final  audit report or final notice of agency action by the inspector
     8  shall commence not less than sixty days after the issuance of the  final
     9  audit  report  or final notice of agency action. The inspector shall not
    10  commence any recovery under this subdivision without providing a minimum
    11  of ten days advance written notice to the provider.
    12    2. Contracts, cost reports, claims, bills or expenditures  of  medical
    13  assistance  funds  that  were  the subject matter of a previous audit or
    14  review by or on behalf of the inspector, within the  last  three  years,
    15  shall not be subject again to review or audit except on the basis of new
    16  information, for good cause to believe that the previous review or audit
    17  was  erroneous, or where the scope of the inspector's review or audit is
    18  significantly different from the scope of the previous review or audit.
    19    3. In conducting reviews or audits,  the  inspector  shall  apply  the
    20  laws,  regulations,  policies, guidelines, standards and interpretations
    21  of the appropriate agency, including temporary or emergency regulations,
    22  policies, guidelines, standards and interpretations, that were in  place
    23  at the time the subject claim arose or other conduct took place.  Disal-
    24  lowances  may  be  imposed or other action taken only for non-compliance
    25  with those laws, regulations, policies,  guidelines  or  standards.  For
    26  purposes  of  this  subdivision,  any change in those laws, regulations,
    27  policies, guidelines, standards or interpretations shall only be applied
    28  prospectively and upon reasonable notice.
    29    4. (a) The inspector shall make no recovery from a provider, based  on
    30  an administrative or technical defect in procedure or documentation made
    31  without  intent  to  falsify  or  defraud, in connection with claims for
    32  payment for medically necessary care, services and supplies or the  cost
    33  thereof  as specified in subdivision two of section three hundred sixty-
    34  five-a of the social services law provided in other  respects  appropri-
    35  ately  to  a  beneficiary  of  the medical assistance program, except as
    36  provided in paragraphs (b) and (c) of this subdivision.
    37    (b) Where there is an administrative or technical defect in  procedure
    38  or  documentation  without  intent  to falsify or defraud, the inspector
    39  shall afford the provider an  opportunity  to  correct  the  defect  and
    40  resubmit the claim within thirty days of notice of the defect.
    41    (c) Where a claim relates to a service that was provided more than two
    42  years prior to the commencement of the audit, the provider may submit or
    43  resubmit  the  claim  or  accept  the  disallowance of the amount of the
    44  claim.
    45    (d) The inspector shall not use extrapolation in recoveries made under
    46  this subdivision.
    47    5. (a) The inspector shall furnish to the provider at  an  audit  exit
    48  conference  or in any draft audit findings issued or to be issued to the
    49  provider, a detailed written explanation  of  the  extrapolation  method
    50  employed,  including  the  size of the sample, the sampling methodology,
    51  the defined universe of claims, the  specific  claims  included  in  the
    52  sample,  the results of the sample, the assumptions made about the accu-
    53  racy and reliability of the sample and the level of  confidence  in  the
    54  sample  results,  and  the  steps  undertaken and statistics utilized to
    55  calculate the alleged overpayment and any applicable offset based on the
        S. 4486--A                          3
     1  sample results. This written information shall include a description  of
     2  the sampling and extrapolation methodology.
     3    (b) The sampling and extrapolation methodologies used by the inspector
     4  shall  be  statistically reasonably valid for the intended use and shall
     5  be established in regulations of the inspector.
     6    § 38. Procedures, practices and  standards  for  recipients.  1.  This
     7  section  applies  to  any adjustment or recovery of a medical assistance
     8  payment from a recipient, and  any  investigation  or  other  proceeding
     9  relating thereto.
    10    2.  At least five business days prior to commencement of any interview
    11  with a recipient as part of an investigation,  the  inspector  or  other
    12  investigating  entity shall provide the recipient with written notice of
    13  the investigation. The notice of the investigation shall set  forth  the
    14  basis  for  the  investigation;  the potential for referral for criminal
    15  investigation; the individual's right to be accompanied by  a  relative,
    16  friend, advocate or attorney during questioning; contact information for
    17  local  legal  services  offices; the individual's right to decline to be
    18  interviewed or participate in an interview but terminate the questioning
    19  at any time without loss of benefits; and the right to a fair hearing in
    20  the event that the investigation results in a determination of incorrect
    21  payment.
    22    3. Following completion of the investigation and at least thirty  days
    23  prior to commencing a recovery or adjustment action or requesting volun-
    24  tary  repayment,  the  inspector  or  other  investigating  entity shall
    25  provide the recipient with written notice of the determination of incor-
    26  rect payment to be recovered or adjusted. The  notice  of  determination
    27  shall  identify  the evidence relied upon, set forth the factual conclu-
    28  sions of the investigation, and explain the recipient's right to request
    29  a fair hearing in order to contest the outcome of the investigation. The
    30  explanation of the right to a fair hearing shall conform to the require-
    31  ments of subdivision twelve of section twenty-two of the social services
    32  law and regulations thereunder.
    33    4. A fair hearing under section twenty-two of the social services  law
    34  shall  be  available  to any recipient who receives a notice of determi-
    35  nation under subdivision three of this section,  regardless  of  whether
    36  the recipient is still enrolled in the medical assistance program.
    37    §  4.  Paragraph  (c)  of subdivision 3 of section 363-d of the social
    38  services law, as amended by section 4 of part V of  chapter  57  of  the
    39  laws  of  2019,  is  amended and a new subdivision 8 is added to read as
    40  follows:
    41    (c) In the event that the  commissioner  of  health  or  the  Medicaid
    42  inspector  general  finds that the provider does not have a satisfactory
    43  program [within ninety days after the effective date of the  regulations
    44  issued  pursuant  to subdivision four of this section], the commissioner
    45  or Medicaid inspector general shall so notify  the  provider,  including
    46  specification  of  the  basis  of  the  finding sufficient to enable the
    47  provider to adopt a satisfactory compliance program. The provider  shall
    48  submit  to  the  commissioner  or  Medicaid inspector general a proposed
    49  satisfactory compliance program within sixty  days  of  the  notice  and
    50  shall  adopt  the  program as expeditiously as possible. If the provider
    51  does not propose and adopt a satisfactory program in such  time  period,
    52  the  provider  may be subject to any sanctions or penalties permitted by
    53  federal or state laws  and  regulations,  including  revocation  of  the
    54  provider's agreement to participate in the medical assistance program.
    55    8. Any regulation, determination or finding of the commissioner or the
    56  Medicaid  inspector  general relating to a compliance program under this
        S. 4486--A                          4
     1  section shall be subject to and consistent  with  subdivision  three  of
     2  this section.
     3    §  5.  Section  32 of the public health law is amended by adding a new
     4  subdivision 6-b to read as follows:
     5    6-b. to file an annual report on or before the first day  of  July  to
     6  the  governor, the temporary president of the senate, the speaker of the
     7  assembly, the minority leader of the senate, the minority leader of  the
     8  assembly,  the commissioner, the commissioner of the office of addiction
     9  services and supports, and the commissioner  of  the  office  of  mental
    10  health  on  the  impacts  that  all civil and administrative enforcement
    11  actions taken under subdivision six of  this  section  in  the  previous
    12  calendar  year will have and have had on the quality and availability of
    13  medical care and services,  the  best  interests  of  both  the  medical
    14  assistance  program  and  its  recipients,  and  fiscal  solvency of the
    15  providers who were subject to the civil  or  administrative  enforcement
    16  action;
    17    § 6. This act shall take effect immediately.

OASAS Providers and Extraordinary Federal Funding

            Cal. No. 441
                               2021-2022 Regular Sessions
                    IN SENATE
                                    February 23, 2021
        Introduced by Sens. HARCKHAM, HINCHEY -- read twice and ordered printed,
          and  when  printed  to be committed to the Committee on Alcoholism and
          Substance Abuse -- reported favorably from said committee, ordered  to
          first  and second report, ordered to a third reading, passed by Senate
          and delivered to the Assembly, recalled, vote  reconsidered,  restored
          to  third  reading, amended and ordered reprinted, retaining its place
          in the order of third reading
        AN ACT to amend the mental hygiene law, in relation to  operating  costs
          for substance abuse providers receiving federal aid
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Paragraph 7 of subdivision (a)  of  section  25.01  of  the
     2  mental hygiene law, as added by section 3 of part G of chapter 56 of the
     3  laws of 2013, is amended to read as follows:
     4    7.  "Approved  net  operating  cost" shall mean the remainder of total
     5  operating expenses approved by the office, less all sources of  revenue,
     6  including  voluntary  agency contributions and local tax levy; provided,
     7  however, that any federal paycheck protection program  loan  forgiveness
     8  funding,  or other extraordinary federal funding provided in response to
     9  the COVID-19 pandemic, as determined by the office, shall not be consid-
    10  ered a source of revenue.
    11    § 2. Section 25.05 of the mental hygiene law, as amended by section  5
    12  of  part  G  of  chapter  56  of the laws of 2013, is amended to read as
    13  follows:
    14  § 25.05 Reimbursement from other sources.
    15    The office shall not provide a voluntary agency or a program  operated
    16  by  a  local  governmental  unit  with financial support for obligations
    17  incurred by or on behalf of such program or  agency  for  substance  use
    18  disorder  and/or compulsive gambling services for which reimbursement is
    19  or may be claimed under any provision of law other  than  this  article,
    20  unless  such  financial  support  was  provided  as  part of any federal
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [] is old law to be omitted.
        S. 5066--A                          2
     1  paycheck protection program loan forgiveness funding, or other  extraor-
     2  dinary federal funding provided in response to the COVID-19 pandemic, as
     3  determined by the office.
     4    §  3.  This  act shall take effect immediately, and shall be deemed to
     5  have been in full force and effect on and after March 13, 2020.