S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8591
 
                             I N  S E N A T E
 
                              March 18, 2022
                                ___________
 
 Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law, in relation to qualifying  health
   care  costs  and  case  management  services  under the New York state
   medical indemnity fund; and to amend chapter 517 of the laws of  2016,
   amending  the public health law relating to payments from the New York
   state medical indemnity fund, in relation to the effectiveness thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  2999-h  of  the  public  health law, as added by
 section 52 of part H of chapter 59 of the laws of 2011, subdivision 1 as
 amended by chapter 517 of the laws of 2016, subdivision 3 as amended  by
 chapter  4 of the laws of 2017 and subdivision 4 as amended by section 1
 of part K of chapter 57 of the laws of  2019,  is  amended  to  read  as
 follows:
   §  2999-h.  Definitions.  As used in this title, unless the context or
 subject matter requires otherwise:
   1. "ACTIVITIES OF DAILY LIVING" MEAN BASIC  SELF-CARE  TASKS  SUCH  AS
 DRESSING  AND  UNDRESSING,  SELF-FEEDING,  BOWEL AND BLADDER MANAGEMENT,
 AMBULATION WITH OR WITHOUT THE USE  OF  AN  ASSISTIVE  DEVICE,  COMMUNI-
 CATION,  FUNCTIONAL  TRANSFERS  FROM  ONE PLACE TO ANOTHER, AND PERSONAL
 HYGIENE AND GROOMING.
   2. "Birth-related neurological injury" means an injury to the brain or
 spinal cord of a live infant caused by  the  deprivation  of  oxygen  or
 mechanical injury occurring in the course of labor, delivery or resusci-
 tation,  or  by  other  medical services provided or not provided during
 delivery admission, that  rendered  the  infant  with  a  permanent  and
 substantial  motor impairment or with a developmental disability as that
 term is defined by section 1.03 of the mental hygiene law, or both. This
 definition shall apply to live births only.
   [2.] 3. "CUSTODIAL CARE" MEANS NON-MEDICAL SERVICES PROVIDED  BY  HOME
 HEALTH  AIDES,  NURSE  AIDES,  PERSONAL  CARE AIDES, AND OTHER QUALIFIED
 HEALTH CARE PROVIDERS TO  ASSIST  ENROLLEES  WITH  ACTIVITIES  OF  DAILY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14632-03-2
              

 S. 8591                             2
 
 LIVING,  INSTRUMENTAL  ACTIVITIES  OF DAILY LIVING, AND DAILY OR ONGOING
 MEDICAL CARE AND SUPPORT.
   4. "Fund" means the New York state medical indemnity fund.
   [3.] 5. "INSTRUMENTAL ACTIVITIES OF DAILY LIVING" MEAN THOSE FUNCTIONS
 NOT  NECESSARY FOR FUNDAMENTAL FUNCTIONING BUT NECESSARY FOR AN INDIVID-
 UAL TO BE ABLE TO LIVE INDEPENDENTLY IN THE  COMMUNITY  SUCH  AS  TAKING
 MEDICATIONS  AS  PRESCRIBED,  PERFORMING  HOUSEKEEPING  TASKS,  MANAGING
 MONEY, USING THE TELEPHONE OR OTHER FORM OF COMMUNICATION, SHOPPING  FOR
 GROCERIES  AND CLOTHING, AND MANAGING TRANSPORTATION WITHIN THE COMMUNI-
 TY.
   6. "Qualifying health care costs" means the future COSTS FOR  medical,
 hospital,  surgical,  nursing,  dental, rehabilitation SERVICES, habili-
 tation SERVICES, [respite, custodial, durable  medical  equipment,  home
 modifications,  assistive technology, vehicle modifications,] AND CUSTO-
 DIAL CARE; BEHAVIORAL AND MENTAL HEALTH CARE; RESPITE CARE, SUBJECT TO A
 MAXIMUM OF ONE THOUSAND EIGHTY HOURS PER YEAR UNLESS PRIOR APPROVAL  HAS
 BEEN  OBTAINED  FOR  ADDITIONAL RESPITE CARE; DURABLE MEDICAL EQUIPMENT;
 ENVIRONMENTAL HOME  MODIFICATIONS  (EMODS),  ASSISTIVE  TECHNOLOGY,  AND
 VEHICLE  MODIFICATIONS;  PRESCRIPTION  AND  OVER THE COUNTER MEDICATIONS
 WHEN PRESCRIBED BY AN AUTHORIZED HEALTH CARE PROVIDER LICENSED OR CERTI-
 FIED UNDER TITLE EIGHT OF THE EDUCATION LAW AND AS OTHERWISE DEFINED  IN
 REGULATION;  transportation for purposes of health care related appoint-
 ments[, prescription and non-prescription medications, and other  health
 care  costs  actually  incurred  for  services  rendered to and supplies
 utilized by qualified plaintiffs, which  are  necessary  to  meet  their
 health care needs, as determined by their treating physicians, physician
 assistants,  or  nurse  practitioners  and  as  otherwise defined by the
 commissioner in regulation] IN ACCORDANCE WITH  REGULATIONS;  COPAYMENTS
 AND DEDUCTIBLES FOR SERVICES, ITEMS, EQUIPMENT OR MEDICATION PAID FOR BY
 COMMERCIAL  INSURANCE; AND ANY OTHER HEALTH CARE COSTS ACTUALLY INCURRED
 FOR SERVICES RENDERED TO AND SUPPLIES UTILIZED BY A QUALIFIED  PLAINTIFF
 THAT  HIS  OR  HER PHYSICIAN, PHYSICIAN ASSISTANT, OR NURSE PRACTITIONER
 HAS STATED IN WRITING ON HIS OR HER LETTERHEAD, OR ON THE SUPERVISING OR
 COLLABORATING PHYSICIAN'S LETTERHEAD, IF  APPLICABLE,  IS  NECESSARY  TO
 MEET  THE  QUALIFIED  PLAINTIFF'S  HEALTH  CARE  NEEDS. THE STATEMENT OF
 NECESSITY MAY BE BASED ON THE  ASSESSMENT  OF  A  HEALTH  CARE  PROVIDER
 LICENSED  OR  CERTIFIED  UNDER  TITLE  EIGHT OF THE EDUCATION LAW AND AS
 OTHERWISE DEFINED IN REGULATION. THE FUND ADMINISTRATOR MAY MAKE  COVER-
 AGE  OF  ONGOING THERAPEUTIC SERVICES SUBJECT TO THE RECEIPT OF PERIODIC
 TREATMENT PLANS AND PROGRESS REPORTS. HEALTH CARE PROVIDERS AS  USED  IN
 THIS  SECTION  SHALL  MEAN  HEALTH  CARE PROVIDERS LICENSED OR CERTIFIED
 UNDER TITLE EIGHT OF THE EDUCATION LAW AND AS OTHERWISE DEFINED IN REGU-
 LATION.
   [4.] 7. "Qualified plaintiff" means every plaintiff  or  claimant  who
 (i)  has been found by a jury or court to have sustained a birth-related
 neurological injury as the result of medical malpractice,  or  (ii)  has
 sustained  a  birth-related neurological injury as the result of alleged
 medical malpractice, and has settled his or her lawsuit or claim  there-
 for; and (iii) has been ordered to be enrolled in the fund by a court in
 New York state.
   §  2.  Section  2999-j of the public health law is amended by adding a
 new subdivision 4-a to read as follows:
   4-A. QUALIFYING HEALTH  CARE  COSTS  ACTUALLY  INCURRED  FOR  SERVICES
 RENDERED TO AND SUPPLIES UTILIZED BY QUALIFIED PLAINTIFFS IN THE HOME OR
 IN  A  RESIDENTIAL  OR  OTHER  FACILITY SHALL BE PAID FROM THE FUND. THE
 COMMISSIONER SHALL PROMULGATE REGULATIONS REGARDING  BILLING  PROCEDURES
 S. 8591                             3
 
 AND  REIMBURSEMENT  CALCULATION  METHODOLOGY  FOR QUALIFYING HEALTH CARE
 COSTS. THE REIMBURSEMENT CALCULATION METHODOLOGY SHALL ADHERE TO  SUBDI-
 VISION  FOUR OF THIS SECTION AND SHALL CONSIDER THE SCHEDULE OF QUALIFY-
 ING HEALTH CARE SERVICES RENDERED TO QUALIFIED PLAINTIFFS.
   §  3.  The  public  health  law  is amended by adding two new sections
 2999-k and 2999-l to read as follows:
   § 2999-K. CASE MANAGEMENT. 1. AS USED IN THIS ARTICLE:  "CASE  MANAGE-
 MENT" MEANS FUNCTIONS, INCLUDING BUT NOT LIMITED TO:
   (A)  CONDUCTING  A  NEW  ENROLLEE  ORIENTATION SESSION BY TELEPHONE OR
 VIDEO TECHNOLOGY WITHIN TEN DAYS OF THE ENROLLEE BEING ACCEPTED INTO THE
 FUND, FOR THE ENROLLEE AND THE ENROLLEE'S  PARENT,  GUARDIAN,  OR  LEGAL
 REPRESENTATIVE,  WHICH SHALL INCLUDE REVIEW OF THE FOLLOWING AND TIME TO
 ANSWER QUESTIONS POSED BY THE ENROLLEE OR THE ENROLLEE'S PARENT, GUARDI-
 AN, OR LEGAL REPRESENTATIVE:
   (I) THE NEW YORK STATE MEDICAL INDEMNITY FUND ENROLLEE HANDBOOK;
   (II) CASE MANAGEMENT  SERVICES  AVAILABLE  TO  THE  ENROLLEE  AND  THE
 ENROLLEE'S PARENT, GUARDIAN, OR LEGAL REPRESENTATIVE;
   (III)  QUALIFYING  HEALTH  CARE  COSTS  ACTUALLY INCURRED FOR SERVICES
 RENDERED TO AND SUPPLIES UTILIZED BY ENROLLEES IN THE HOME OR IN A RESI-
 DENTIAL FACILITY;
   (IV) QUALIFYING HEALTH  CARE  COSTS  ACTUALLY  INCURRED  FOR  SERVICES
 RENDERED TO AND SUPPLIES UTILIZED BY ENROLLEES IN THE HOME OR IN A RESI-
 DENTIAL FACILITY THAT REQUIRE PRIOR APPROVAL OR DOCUMENTATION OF MEDICAL
 NECESSITY AND RECERTIFICATION;
   (V)  THE CLAIMS REIMBURSEMENT AND APPEALS PROCESSES, INCLUDING HOW AND
 WITH WHOM TO FILE AN APPEAL;
   (VI) REQUIRED FORMS THAT MUST BE COMPLETED, HOW TO REQUEST THE  FORMS,
 AND WHERE FORMS ARE LOCATED ONLINE IF APPLICABLE; AND
   (VII)  HOW  TO  CONTACT THE FUND ADMINISTRATOR AND THE DEPARTMENT WITH
 QUESTIONS OR CONCERNS;
   (B) CONDUCTING AN INITIAL ASSESSMENT AND PERIODIC REASSESSMENTS OF THE
 ENROLLEE'S MEDICAL NEEDS;
   (C) EVALUATING THE ENROLLEE'S STRENGTHS, INFORMAL SUPPORT  SYSTEM  AND
 ENVIRONMENTAL FACTORS RELEVANT TO HIS/HER CARE;
   (D)  REVIEWING  INFORMATION  PROVIDED  BY THE ENROLLEE, THE ENROLLEE'S
 INFORMAL SUPPORT SYSTEM, AND CURRENT  PROVIDERS  (INCLUDING  ANY  SCHOOL
 RELATED OR HABILITATION SERVICES) REGARDING THE SERVICES PRESENTLY BEING
 PROVIDED  TO  THE  ENROLLEE  AND ANY EXISTING GAPS IN THE SERVICES BEING
 PROVIDED TO THE ENROLLEE;
   (E) ESTABLISHING A COMPREHENSIVE,  WRITTEN  CASE  MANAGEMENT  PLAN  TO
 ASSIST  THE  ENROLLEE OR THE ENROLLEE'S CAREGIVER TO MANAGE THE DELIVERY
 OF ALL QUALIFYING HEALTH CARE SERVICES NEEDED BY THE ENROLLEE;
   (F) ASSISTING AN  ENROLLEE  OR  THE  ENROLLEE'S  CAREGIVER  TO  OBTAIN
 SERVICES  SET FORTH IN THE CASE MANAGEMENT PLAN FOR THE ENROLLEE THROUGH
 REFERRAL TO AGENCIES OR PERSONS QUALIFIED TO PROVIDE THOSE SERVICES;
   (G) ASSISTING THE ENROLLEE WITH ANY FORMS NECESSARY FOR THE RECEIPT OF
 OR PAYMENT FOR SERVICES;
   (H) ASSISTING WITH CRISIS INTERVENTION IN THE EVENT THAT THE  ENROLLEE
 HAS EMERGENCY SERVICE NEEDS;
   (I)  DEVELOPING AND MAINTAINING A LIST OF ALTERNATIVE PROVIDER SOURCES
 THAT  MAY  BE  AVAILABLE  TO  THE  ENROLLEE  IN  THE  EVENT  OF  SERVICE
 DISRUPTION,  AND  MAKING  THAT  LIST  AVAILABLE  UPON THE REQUEST OF THE
 ENROLLEE OR THE ENROLLEE'S CAREGIVER; AND
   (J) MONITORING THE SERVICES PROVIDED UNDER THE  CASE  MANAGEMENT  PLAN
 BY:
 S. 8591                             4
 
   (I) VERIFYING THAT THE SERVICES IDENTIFIED IN THE CASE MANAGEMENT PLAN
 ARE BEING RECEIVED BY THE ENROLLEE IN THE AMOUNT AND FREQUENCY SPECIFIED
 IN THE CASE PLAN; AND
   (II)  DOCUMENTING  THE  CASE  RECORD  REGARDING THE ENROLLEE'S MEDICAL
 CONDITION AND PROGRESS MADE.
   2. IF THE ENROLLEE ALREADY  HAS  A  CASE  MANAGER  IN  ANOTHER  HEALTH
 RELATED  PROGRAM, THE FUND ADMINISTRATOR'S CASE MANAGER SHALL COORDINATE
 THE ENROLLEE'S CARE IN CONJUNCTION WITH THE OTHER CASE MANAGER.
   3. A CASE MANAGER SHALL HAVE  SIGNIFICANT  EXPERIENCE  OR  EDUCATIONAL
 TRAINING IN HEALTH OR SOCIAL SERVICES, PREFERABLY INCLUDING WORK EXPERI-
 ENCE OR A PRACTICUM THAT INVOLVED THE PERFORMANCE OF ASSESSMENTS AND THE
 DEVELOPMENT  OF CASE MANAGEMENT PLANS. VOLUNTARY OR PART-TIME EXPERIENCE
 THAT CAN BE VERIFIED WILL BE ACCEPTED ON A PRO RATA BASIS.
   4. AN ENROLLEE OR PERSON ACTING ON AN ENROLLEE'S BEHALF CAN REQUEST  A
 CHANGE  IN  CASE MANAGER AT ANY TIME BY SUBMITTING A WRITTEN REQUEST FOR
 REASSIGNMENT ON A FORM PROVIDED BY THE FUND ADMINISTRATOR. REASSIGNMENTS
 WILL OCCUR AS PROMPTLY AS POSSIBLE BASED ON  CASE  MANAGER  AVAILABILITY
 AND EXISTING CASELOADS.
   5.  THE ENROLLEE OR THE ENROLLEE'S PARENT, GUARDIAN OR LEGAL REPRESEN-
 TATIVE IS RESPONSIBLE FOR PARTICIPATING IN AN  INITIAL  CASE  MANAGEMENT
 CONFERENCE  AND  SUBSEQUENT,  PERIODIC  CASE MANAGEMENT CONFERENCES ON A
 SCHEDULE DETERMINED BY THE NEEDS OF THE ENROLLEE. THE  REPEATED  FAILURE
 OF  THE  RESPONSIBLE INDIVIDUAL TO PARTICIPATE IN NECESSARY CASE MANAGE-
 MENT CONFERENCES MAY RESULT IN THE FUND ADMINISTRATOR NOT PROCESSING ANY
 CLAIMS OR REQUESTS UNTIL COMPLIANCE WITH THIS REQUIREMENT OCCURS.
   § 2999-L. EXPLANATION OF BENEFITS FORMS RELATING TO CLAIMS FOR  QUALI-
 FYING  HEALTH  CARE  COSTS  UNDER THE FUND. 1. THE FUND ADMINISTRATOR IS
 REQUIRED TO PROVIDE THE QUALIFIED PLAINTIFF WITH AN EXPLANATION OF BENE-
 FITS FORM IN RESPONSE TO THE FILING OF ANY CLAIM FOR  QUALIFYING  HEALTH
 CARE COSTS.
   2.  THE EXPLANATION OF BENEFITS FORM MUST INCLUDE AT LEAST THE FOLLOW-
 ING:
   (A) THE NAME OF THE PROVIDER OF SERVICE, THE  ADMISSION  OR  FINANCIAL
 CONTROL NUMBER, IF APPLICABLE;
   (B) THE DATE OF SERVICE;
   (C) AN IDENTIFICATION OF THE SERVICE FOR WHICH THE CLAIM IS MADE;
   (D) THE PROVIDER'S CHARGE OR RATE;
   (E) THE AMOUNT OR PERCENTAGE PAID BY THE PRIMARY THIRD-PARTY PAYOR AND
 THE AMOUNT PAYABLE UNDER THE FUND;
   (F)  A SPECIFIC EXPLANATION OF ANY DENIAL, REDUCTION, OR OTHER REASON,
 INCLUDING ANY OTHER THIRD-PARTY PAYOR COVERAGE, FOR NOT  PROVIDING  FULL
 REIMBURSEMENT FOR THE AMOUNT CLAIMED;
   (G)  A  TELEPHONE  NUMBER,  DIGITAL INFORMATION, AND ADDRESS WHERE THE
 QUALIFIED PLAINTIFF OR THEIR PARENT, GUARDIAN, OR  LEGAL  REPRESENTATIVE
 MAY OBTAIN CLARIFICATION OF THE EXPLANATION OF BENEFITS; AND
   (H)  A  DESCRIPTION  OF  THE  TIME LIMIT, PLACE AND MANNER IN WHICH AN
 APPEAL OF A DENIAL OF BENEFITS MUST BE BROUGHT UNDER THE FUND.
   3. THE PROVISIONS OF THIS SECTION REQUIRING AN EXPLANATION OF BENEFITS
 FORM FOR QUALIFYING HEALTH CARE COST CLAIMS SHALL BE PROVIDED BY A WRIT-
 TEN SUMMARY OF THE INFORMATION PRESCRIBED BY PARAGRAPH (A)  OF  SUBDIVI-
 SION  TWO  OF THIS SECTION OR BY MAKING SUCH INFORMATION AVAILABLE ELEC-
 TRONICALLY ON THE MEMBER PORTAL OF THE ADMINISTRATOR'S WEBSITE, PROVIDED
 THAT THE MEMBER CONSENTS TO RECEIVING  THE  INFORMATION  ELECTRONICALLY.
 MEMBERS  MAY  CHANGE  HOW THEY ELECT TO RECEIVE THE EXPLANATION OF BENE-
 FITS.
 S. 8591                             5
 
   4. EXPLANATION OF BENEFITS FORMS FOR QUALIFYING HEALTH CARE COSTS THAT
 RESULT FROM PHARMACEUTICAL CLAIMS  SHALL  BE  PROVIDED  ON  A  QUARTERLY
 BASIS.
   § 4. Section 5 of chapter 517 of the laws of 2016, amending the public
 health  law  relating to payments from the New York state medical indem-
 nity fund, as amended by section 8 of part S of chapter 57 of  the  laws
 of 2021, is amended to read as follows:
   §  5. This act shall take effect on the forty-fifth day after it shall
 have become a law, provided that the  amendments  to  subdivision  4  of
 section  2999-j of the public health law made by section two of this act
 shall take effect on June 30, 2017  [and  shall  expire  and  be  deemed
 repealed December 31, 2022].
   §  5.  This  act shall take effect on the thirtieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such effective date.