Plugged Into Health @ Hinman Straub – December 17, 2018

Governor’s Agenda for First 100 Days

On Monday, Governor Cuomo delivered his Agenda for the First 100 Days, outlining top legislative priorities for 2019. The Governor noted that while the State of the State address traditionally identifies the Governor’s legislative proposals for the year, the new political reality in New York (Senate Democratic Majority) allows for immediate action in the beginning of the legislative session.

The Governor’s “Justice Agenda” calls for the passage of the Reproductive Health Act and the Contraception Coverage Act in the first 30 days of the legislative session. The Reproductive Health Act would codify the Supreme Court’s Roe v. Wade decision and subsequent rulings into state law. The Contraception Coverage Act would codify the Affordable Care Act’s requirement that contraception be made available without cost-sharing requirements, and would include additional provisions requiring coverage of emergency contraception without a prescription, male contraception and sterilization, and require coverage of a year’s worth of a contraceptive at a time.

In addition, the Governor identified the following healthcare-related initiatives:

Prevent discrimination on pre-existing conditions;
Codify New York’s health exchange (the New York State of Health);
Maintain access to prescription drug coverage; and
Legalize adult recreational use of marijuana.

Full Meeting of the Public Health and Health Planning Council (PHHPC)

On December 13, the Public Health and Health Planning Council held a full council meeting in Albany. A link to the full PHHPC agenda materials can be found here.

The Council addressed a number of significant items, including:

The Codes, Regulations and Legislation Committee (“CRLC”) met to consider two motions for adoption which included amendments that would add four new elements to the Patient’s Bill of Rights, and amendments regarding updates and improvements to data collection through the Statewide Planning and Research Cooperative System (“SPARCS”). The Committee adopted both motions which were subsequently adopted by the Council. The Committee also considered five topics for information, most notably regulations that would require nursing homes to electronically submit a weekly bed census survey to the Department of Health (while facilities have been advised administratively to submit this data, including this requirement in regulations is intended to improve compliance); and new requirements for the annual registration of Licensed Health Care Services Agencies (“LHCSAs”). A copy of the full CRLC agenda can be found here.
The Committee on Establishment and Project Review (“EPRC”) approved a CON application for Joseph’s Health, Inc. (“SJH”) and Trinity Health Corporation (“Trinity”) allowing Trinity to become co-established with SJH as the active parent/co-operator of St. Joseph’s Hospital Health Center (“SJHHC”), a 451-bed, voluntary not-for-profit, Article 28 acute care hospital located in Onondaga County. This proposal was subsequently approved by the Council.
The EPRC also approved a CON application for St. Peter’s Health Partners (“SPHP”) allowing Trinity to become co established over all the Article 28 licensed SPHP facilities as a co-operator/active parent. Currently SPHP is the co-operator/active parent of many Article 28 facilities in the Capital region. Trinity will have operator rights, power and authority over the SJH and SPHP facilities under the revised modified active parent regulatory authority. This application was subsequently approved by the Council.
Department of Health Commissioner, Dr. Howard A. Zucker, provided an update regarding the Department of Health’s recommendations and activities related to: the Department’s response to influenza vaccinations throughout the state, updates on recent Measles outbreaks in the state, the statewide rollout of E-WIC program, the HEP-C Taskforce efforts, the state’s continued efforts to end the HIV epidemic, and the progress of the open enrollment period in the NY State of Health marketplace.
The New York State Prevention Agenda 2019 – 2024 was adopted by the Council. The Agenda outlines the State’s goal to improve the health status of New Yorkers and reduce health disparities through increased emphasis on prevention and action from stakeholders to implement strategies for health improvements at a community level. A copy of the presentation materials provided to the Council can be found here.
The Council granted approval of Albany Medical Center Hospital (“AMCH”) CON application to certify a multispecialty Ambulatory Surgery Center (“ASC”) to be located at 1769 Union Street, Niskayuna (Schenectady County). The initial motion seeking approval was actively opposed by a number of providers and public officials, and did not receive sufficient votes necessary for approval. Approval of a motion requires 13 affirmative votes and this motion received 12 affirmative votes and 6 negative votes with 1 abstention. After reconsideration, the abstaining member decided to cast a positive vote for the project. The project now goes to the Commissioner for final determination.
The full Council formally disapproved Shining Star Health Care, Inc. for a three year extension to its limited life operating certification. Shining Star was established as a pilot program Certified Home Health Agency (“CHHA”) in January of 2012 with a conditional five year limited life. In voting to disapprove the application, the Council had a lengthy discussion on the issue of this CHHA failing to demonstrate a minimum level of charity care of 2%, with one member emphasizing that the Council needs to set a precedent that this minimum level of 2% should be strongly considered in the Council’s decision making process. In voting to disapprove the application, rather than simply not have the votes to approve the application, the applicant will have the right to appeal the decision.

All other applications for project review on the full Council agenda received a recommendation for approval.

The next PHHPC Committee meeting is scheduled for Thursday, January 24, 2019 in NYC and the next PHHPC Full Council meeting is scheduled for Thursday, February 14, 2019 in NYC.

Managed Care Policy and Planning Meeting

On Thursday, the Department of Health held the monthly Policy and Planning Meeting with the State’s Medicaid Managed Care plans.

Highlights from the meeting include:

Mainstream Enrollment: Statewide enrollment for November was 4,352,766, an increase of 9,766 decrease since October. This is the first month enrollment increased in MMC since July. Enrollment in NYC increased .09% and is 2,551,278 for the month of November. Upstate, enrollment was 1,801,488 for the month, which was a .42% increase from October.
MCO Provider Enrollment in FFS: Managed care plans continue to be advised to hold on terminating providers who have failed to enroll in FFS at this time.
VBP Contracts: DOH emphasized the importance of completing the provider contract certification form, Form 4255, correctly. DOH has identified errors during annual surveys. Plans asked DOH to hold a refresher training webinar on completing the form. Plans also asked for a meeting to discuss the VBP contract review process to discuss delays and inconsistencies with the Department’s review of Level 2 and 3 contracts.
MLTC Enrollment: MLTC enrollment through the month of November is 244,006, an increase of 2,755 since October. Overall, the MLTC program has grown by 12.57% since last November. The majority of this growth continues to be in the MLTC partial cap program, which is currently at 220,725, an increase of 2,419 since October. Enrollment growth in MLTC partial cap is once again averaging around 2,500 new enrollees per month. All MLTC programs realized month-to-month enrollment growth with the exception of FIDA, which saw enrollment decline by 85 (3725 vs. 3,640) with annual enrollment now down 17.37% YTD. Conversely, enrollment in MAP has increased by 40% since last November, 12,727 enrollees reported compared to 12,360 one month ago, and 11,832 two months prior (September).
Community First Choice Option (CFCO): As previously announced, the start of CFCO for skill acquisition, maintenance, and enhancement is no longer January 1, 2019. A new target date is still being discussed and will be shared during a webinar scheduled for December 20^th.
LHCSA Network Limitations: A notice of an additional report for plans to indicate which LHCSAs are in their network, when their contracts are ending and if they will be requesting exceptions will be sent to plans. Plans will also receive an annual Certificate of Compliance, which must be completed and returned attesting that the LHCSA contracts are within the mandatory ratios for the region.
LHCSA Registration: LHCSAs were required to register under the new State process when submitted their 2017 Statistical Reports. The deadline for registration was November 16, 2018. A LHCSA that fails to submit a complete and accurate registration will be fined $500 per month. LHCSAs that have not registered by January 1^st are not permitted to provide services or receive reimbursement for services.
Future of Integrated Care: A meeting to discuss the future of integrated care for dual eligible beneficiaries (the next version of FIDA) was scheduled to take place today.

LHCSA Registration Must be Completed by January 1, 2019 for All Licensed Sites, Branches

As a reminder, all Licensed Home Care Services Agencies (“LHCSAs”) must complete the new LHCSA Registration process by January 1, 2019. LHCSAs that do not meet the registration deadline will be terminated from managed care plan networks and will be unable to operate or receive reimbursement from any source.

DFS Fines Two Health Insurers for Violations of Insurance Law

Last week, the Department of Financial Services announced that it has signed consent orders with two health insurers totaling more than $2.5 million for violations of New York Insurance Law.

Aetna Health Inc., Aetna Health Insurance Company of New York and Aetna Life Insurance Company will pay a civil penalty of $1,950,000 for violations including the failure to make prospective determinations, including pre-authorizations, and failure to acknowledge and respond to members’ complaints within required timeframes.

Aetna Health Insurance Company

A DFS market conduct examination found that from January 1, 2012 through December 31, 2015, Aetna failed to do the following, among other violations:

Make prospective determinations, including pre-authorizations, within three business days of receipt of all necessary information;
Acknowledge and respond to members complaints within the required time frames;
Acknowledge receipt of a member’s grievance within 15 days;
Make a grievance determination within 30 days;
Send initial adverse determination letters to the insured and providers within 30 days;
Make an appeal determination within 60 days of all necessary information to conduct an appeal;
To provide the insured, the insured’s designee or health care provider in writing of the appeal determination within two business days;
Inappropriately applied cost sharing to certain preventive care services;
And inappropriately denied claims related to certain preventive care services.

Under the consent, Aetna will make the following corrections among others:

Review and revise, where necessary, all procedures related to utilization review, appeals, grievances and complaints to ensure that timely determinations and notifications are given to insureds, providers, and other recipients;
Review and revise all adverse determination letters for external appeal and timeframe information in compliance with New York Insurance Law and federal statutes;
Monitor all vendors who may perform the services listed above.

Aetna also will reprocess all preventive care claims where cost sharing was inappropriately applied and make overdue payments, including interest; and reprocess all claims that were inappropriately denied, and make overdue payments, including interest.

Oscar Insurance Corp

Oscar Insurance Corp. will pay a civil penalty of $576,950 for violations including the failure to adhere to deadlines for utilization reviews and failure to include detailed explanations of adverse determination notices.

A DFS market conduct examination found that from January 12, 2013 through December 31, 2015, Oscar Insurance Company violated insurance law as follows:

Failing to make a determination for prospective utilization reviews within three business days;
Failing to make a determination for concurrent utilization reviews within one business day;
Failing to include an accurate and detailed explanation of the clinical rationale for the denials in the adverse determination notices; and
Failing to include forfeiture language in the explanation of benefit statements.

Under the consent order, Oscar Insurance will take action to correct the violations, including but not limited to:

Revising explanation of benefit statements to include the appropriate forfeiture language;
Revising adverse determination notices to include a detailed explanation of the clinical rationale for denials; and
Reviewing and revising all procedures, if necessary, related to utilization review in order that timely determinations are made.

Regulatory Update

Department of Health

Criminal History Record Checks and Advanced Home Health Aides (A)

The Department of Health has issued a notice of adopted rulemaking that implements the Advanced Home Health Aide (“AHHA”) program that was signed into law in 2016. The rulemaking defines tasks for AHHAs, set forth provisions for AHHA care employed by certified home health agencies (“CHHAs”), long term home health care programs (“LTHHCPs”), licensed home care services agencies (“LHCSAs”), hospices, and assisted living residences (“ALRs”). It also adds workers employed by hospice programs and AHHAs employed by EALRs to the Home Care Services Worker Registry.

Department responses to public comments on this proposal can be found here.

The rule, as adopted, contains no changes from the proposal published in the May 30, 2018 edition of the NYS Register.

Legislative Spotlight

Now that the 2018 Legislative session has adjourned, bills that have passed both houses of the Legislature will be delivered to the Governor in “batches” over the next several months. Once a bill has been delivered to the Governor, he has 10 days (excluding Sundays) to either sign the bill into law or veto the bill.

The following bills of interest were recently delivered to the Governor:

S.7746-A Seward/A.10634 Steck: This bill extends the legislation authorizing certain domestic medical malpractice insurers to secure a license using the Free Trade Zone (FTZ), which requires the insurer must maintain a monetary surplus to policyholders of at least twice the minimum surplus to policyholders required by law for medical malpractice insurers, to December 31, 2020. If signed by the Governor, this law will take effect immediately.
A.11014 Cook/S.8995 Seward: This bill authorizes the continuation of legislation that allows stop loss, catastrophic and reinsurance coverages to remain in effect for small groups, if such coverage were in effect prior to January 1, 2015, despite a general prohibition that prevents insurers from selling stop loss coverage to groups with between 51 and 100 employees or members. The legislation also allows municipalities and schools districts that are currently members of municipal consortiums to continue as members of such consortiums without applying insurance provisions applicable to small groups to the larger consortiums. The law was extended through 2024. If signed by the Governor, this Bill will take effect immediately and the provisions authorizing the continued ability of small groups and municipal corporations to purchase stop loss coverage will now expire on December 28, 2024.
A.10336A Paulin/S.8699 Gallivan: This bill prohibits a not-for-profit (NFP) from having a membership comprised of fewer than three individuals, unless the corporation has no members. The Bill contains an exception for an NFP corporation that has a sole member to allow for the structure, provided that the sole member is owned or controlled by no fewer than three individuals. The goal of this legislation is to prevent a single individual from being the only member of charitable not-for-profit corporation. If signed by the Governor, this law will take effect immediately and apply to all NFP corporations on July 1, 2019.
A.2688B Steck/S.3780 Ranzenhofer: This bill requires that any solicitation by or on behalf of a charitable organization include a statement identifying the website and telephone number of the New York State Office of the Attorney General where an individual can receive information on charitable organizations. If signed by the Governor, this law will take effect 90 days and apply to any solicitation made on or after such date.

Upcoming Calendar

Tuesday, December 18, 2018

Drinking Water Quality Council (DWQC)

3:00 p.m.

90 Church Street, 4^th Floor Conference Room – C, New York, NY