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
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.
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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
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.
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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.