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.
STATE OF NEW York ________________________________________________________________________ 4486--A 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. LBD06411-02-1 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 regulations44 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
5066--A 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. LBD09893-05-1 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.