S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5281--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 7, 2023
                                ___________
 
 Introduced  by M. of A. SAYEGH, DICKENS, HEVESI, SEPTIMO, LAVINE, STECK,
   EICHENSTEIN, WEPRIN, RAMOS -- read once and referred to the  Committee
   on  Health -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the social services law, in relation to certain authori-
   zations to fiscal intermediaries; and to repeal certain provisions  of
   such law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (b) of subdivision 4-a of section  365-f  of  the
 social  services law, as amended by section 4 of part G of chapter 57 of
 the laws of 2019, subparagraph (vi) as amended by section 1 of  part  LL
 of chapter 57 of the laws of 2021, is amended to read as follows:
   (b) [Notwithstanding any inconsistent provision of section one hundred
 sixty-three  of  the state finance law, or section one hundred forty-two
 of the economic  development  law  the  commissioner  shall  enter  into
 contracts  under  this subdivision with eligible contractors that submit
 an offer for a contract, provided, however, that:
   (i) the department shall post on its website:
   (A) a description of the proposed services to be provided pursuant  to
 contracts in accordance with this subdivision;
   (B)  that  the  selection  of  contractors  shall be based on criteria
 reasonably related to the contractors' ability to provide fiscal  inter-
 mediary  services including but not limited to: ability to appropriately
 serve individuals participating in the program, geographic  distribution
 that  would  ensure  access in rural and underserved areas, demonstrated
 cultural and language competencies specific to the population of consum-
 ers and those of the available  workforce,  ability  to  provide  timely
 consumer  assistance,  experience serving individuals with disabilities,
 the availability of consumer peer support, and  demonstrated  compliance

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09732-03-3
 A. 5281--A                          2
              

 with  all  applicable  federal and state laws and regulations, including
 but not limited to those relating to wages and labor;
   (C)  the  manner  by  which  prospective  contractors  may  seek  such
 selection, which may include submission by electronic means;
   (ii) all reasonable and  responsive  offers  that  are  received  from
 prospective  contractors  in  timely  fashion  shall  be reviewed by the
 commissioner;
   (iii) the commissioner shall award such contracts to  the  contractors
 that  best  meet the criteria for selection and are best suited to serve
 the purposes of this section and the needs of consumers;
   (iv) all entities providing fiscal intermediary services on or  before
 April first, two thousand nineteen, shall submit an offer for a contract
 under  this  section  within sixty days after the commissioner publishes
 the initial offer on the department's website. Such  entities  shall  be
 deemed  authorized to provide such services unless: (A) the entity fails
 to submit an offer for a contract under this section  within  the  sixty
 days;  or  (B)  the  entity's offer for a contract under this section is
 denied;
   (v) all decisions made and approaches taken pursuant to this paragraph
 shall be documented in a procurement record as defined  in  section  one
 hundred sixty-three of the state finance law; and
   (vi)  the  commissioner  is  authorized to either reoffer contracts or
 utilize the previous offer,  to  ensure  that  all  provisions  of  this
 section  are  met.]  THE COMMISSIONER SHALL PROVIDE AUTHORIZATIONS UNDER
 THIS SUBDIVISION TO ALL  FISCAL  INTERMEDIARIES  THAT  TIMELY  SUBMIT  A
 REQUEST  FOR  AUTHORIZATION PRIOR TO JANUARY FIRST, TWO THOUSAND TWENTY-
 FOUR, AND MEET THE REQUIREMENTS  OF  THIS  SECTION.    NO  ENTITY  SHALL
 PROVIDE,  DIRECTLY  OR  THROUGH  CONTRACT,  FISCAL INTERMEDIARY SERVICES
 WITHOUT HAVING RECEIVED AN AUTHORIZATION AS A FISCAL INTERMEDIARY ISSUED
 BY THE COMMISSIONER IN ACCORDANCE WITH THIS SUBDIVISION, OR THAT  HAS  A
 PENDING  AUTHORIZATION  TIMELY  SUBMITTED  AND  CURRENTLY IN PROCESSING,
 REVIEW, APPEAL, OR LEGAL CHALLENGE.
   (I) AN APPLICATION FOR AUTHORIZATION AS A FISCAL INTERMEDIARY SHALL BE
 FILED WITH THE COMMISSIONER, TOGETHER WITH SUCH OTHER FORMS AND INFORMA-
 TION AS SHALL BE PRESCRIBED BY, OR ACCEPTABLE TO THE COMMISSIONER.  SUCH
 INFORMATION SHALL CONSIST OF THE FOLLOWING:
   (A) THE NAME  AND  EMPLOYER  IDENTIFICATION  NUMBER,  OF  THE  ENTITY,
 INCLUDING  ANY  SUBSIDIARY  CORPORATIONS,  IF APPLICABLE, AND   ANY NAME
 UNDER WHICH THE ENTITY DOES BUSINESS;
   (B) ALL ADDRESSES AT WHICH THE ORGANIZATION OPERATES;
   (C) THE NAMES, TITLES AND CONTACT  INFORMATION  OF  ALL  OFFICERS  AND
 DIRECTORS  IN  A  NOT-FOR-PROFIT  COMPANY  OR BUSINESS, OR MANAGERS IN A
 LIMITED LIABILITY COMPANY, AS WELL AS THE NAME AND EMPLOYMENT HISTORY OF
 THE INDIVIDUAL ULTIMATELY ACCOUNTABLE FOR OPERATION OF THE FISCAL INTER-
 MEDIARY; AND FOR A NOT-FOR-PROFIT ENTITY, THE NUMBER OF  DIRECTOR  POSI-
 TIONS SET BY THE COMPANY'S BY-LAWS, AND HOW MANY ARE CURRENTLY FILLED;
   (D)  A  HISTORY  OF  THE  ORGANIZATION,  ALONG WITH AN OVERVIEW OF THE
 ORGANIZATION AND ALL SERVICES IT  OFFERS,  INCLUDING  ANY  RELATIONSHIPS
 WITH  OUTSIDE  AGENCIES THAT MAY INFLUENCE IN ANY WAY THE ABILITY OF THE
 ORGANIZATION TO PROVIDE FISCAL INTERMEDIARY SERVICES CONSISTENT WITH THE
 MANNER DESCRIBED IN ITS APPLICATION;
   (E) ALL POLICIES AND PROCEDURES OF THE FISCAL INTERMEDIARY,  INCLUDING
 ANY CONTRACTS OR OTHER DOCUMENTS USED IN COMMUNICATIONS WITH CONSUMERS;
   (F) PLANS TO SOLICIT AND CONSIDER INPUT FROM THE FISCAL INTERMEDIARY'S
 CONSUMERS, STAFF, PERSONAL ASSISTANTS AND OTHER INTERESTED PARTIES WHICH
 MAY  BE CHARGED WITH ROLES INCLUDING, BUT NOT LIMITED TO, QUALITY ASSUR-
 A. 5281--A                          3
 
 ANCE REVIEW, REFERRAL, PROGRAM MONITORING OR DEVELOPMENT OR ESTABLISHING
 AND RESPONDING TO COMMUNITY NEEDS; SUCH INPUT MAY BE IN THE  FORM  OF  A
 BOARD OF DIRECTORS, COMMITTEE, SURVEY, OR OTHER MECHANISM, PROVIDED THAT
 THE  MAJORITY  OF  INPUT  OBTAINED  AS PART OF THIS PROCESS MUST BE FROM
 INDIVIDUAL CONSUMERS AND CONSUMER ADVOCATES OF THE FISCAL INTERMEDIARY;
   (G) THE ORGANIZATION'S PLAN TO ADDRESS  THE  NEEDS  OF  CONSUMERS  AND
 THEIR  PERSONAL  ASSISTANTS IN A TIMELY MANNER, REGARDLESS OF WHERE THEY
 LIVE, INCLUDING, BUT NOT LIMITED TO,  INPUT  FROM  CONSUMERS,  OBTAINING
 PHYSICALS AND OTHER HEALTH INFORMATION FROM PERSONAL ASSISTANTS, OBTAIN-
 ING TIME RECORDS FOR PAYROLL, AND TIMELY PROCESSING OF PAYROLL; AND
   (H)  A  WRITTEN SWORN STATEMENT BY AN OFFICER OF THE ENTITY DISCLOSING
 ANY PENDING LITIGATION, UNSATISFIED JUDGMENTS OR PENALTIES,  CONVICTIONS
 FOR FRAUD OR SANCTIONS IMPOSED BY GOVERNMENT AUTHORITIES.
   (II) THE ENTITY SHALL REASONABLY PROMPTLY NOTIFY THE DEPARTMENT OF ANY
 CHANGE  IN THE INFORMATION SUBMITTED TO THE DEPARTMENT FOR AUTHORIZATION
 UNDER THIS SUBDIVISION.
   (III) THE COMMISSIONER SHALL NOT WITHHOLD APPROVAL OF ANY  APPLICATION
 FOR AUTHORIZATION THAT DEMONSTRATES THE FISCAL INTERMEDIARY'S ABILITY TO
 PROVIDE  FISCAL  INTERMEDIARY  SERVICES,  IN  ACCORDANCE WITH THE MANNER
 REQUIRED BY THIS SUBDIVISION AND THE RULES  AND  REGULATIONS  HEREUNDER.
 ALL SUCH APPLICATIONS SHALL BE APPROVED BY THE COMMISSIONER.
   (IV)  IF  THE COMMISSIONER DENIES AN APPLICATION FOR AUTHORIZATION, HE
 OR SHE SHALL INCLUDE A NARRATIVE EXPLANATION OF THE  REASON  OR  REASONS
 FOR  ITS  DENIAL  AND PROVIDE THE FISCAL INTERMEDIARY WITH SIXTY DAYS TO
 SUBMIT ADDITIONAL INFORMATION FOR RECONSIDERATION BY THE COMMISSIONER.
   (V) THE COMMISSIONER SHALL CONSIDER AND EVALUATE ANY RESPONSE RECEIVED
 BY THE FISCAL INTERMEDIARY BEFORE REACHING A FINAL DETERMINATION,  WHICH
 LIKEWISE  SHALL BE ACCOMPANIED BY A NARRATIVE EXPLANATION, IF THE APPLI-
 CATION IS STILL DENIED.
   (VI) ALL ORDERS OR DETERMINATIONS  UNDER  THIS  SUBDIVISION  SHALL  BE
 SUBJECT  TO  REVIEW  AS  PROVIDED  IN ARTICLE SEVENTY-EIGHT OF THE CIVIL
 PRACTICE LAW AND RULES.
   § 2. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 4-a of
 section 365-f of the social services law, as amended  by  section  3  of
 part  G  of  chapter  57  of  the laws of 2019, the opening paragraph of
 subparagraph (i) as amended by section 2 of part PP of chapter 57 of the
 laws of 2022, are amended to read as follows:
   (i) "Fiscal intermediary" means an entity that provides fiscal  inter-
 mediary  services  and  has  a contract for providing such services with
 [the department of health and is selected through the procurement  proc-
 ess described in paragraphs (b), (b-1), (b-2) and (b-3) of this subdivi-
 sion. Eligible applicants for contracts shall be entities that are capa-
 ble  of appropriately providing fiscal intermediary services, performing
 the responsibilities of a fiscal intermediary, and complying  with  this
 section, including but not limited to entities that]:
   (A)  [are  a  service  center for independent living under section one
 thousand one hundred twenty-one of the education law; or
   (B) have been established as fiscal intermediaries  prior  to  January
 first,  two  thousand  twelve  and have been continuously providing such
 services for eligible individuals under this section.] A  LOCAL  DEPART-
 MENT  OF  SOCIAL SERVICES; AN ORGANIZATION LICENSED UNDER ARTICLE FORTY-
 FOUR OF THE PUBLIC HEALTH LAW; OR
   (B) AN ACCOUNTABLE CARE ORGANIZATION CERTIFIED UNDER  ARTICLE  TWENTY-
 NINE-E  OF  THE  PUBLIC  HEALTH  LAW  OR  AN  INTEGRATED DELIVERY SYSTEM
 COMPOSED PRIMARILY OF HEALTH CARE PROVIDERS RECOGNIZED BY THE DEPARTMENT
 A. 5281--A                          4
 
 AS A PERFORMING PROVIDER SYSTEM UNDER THE DELIVERY SYSTEM REFORM  INCEN-
 TIVE PAYMENT PROGRAM.
   (ii)   Fiscal   intermediary  services  shall  include  the  following
 services, performed on behalf of the consumer to facilitate his  or  her
 role as the employer:
   (A) wage and benefit processing for consumer directed personal assist-
 ants;
   (B) processing all income tax and other required wage withholdings;
   (C)  complying with workers' compensation, disability and unemployment
 requirements;
   (D) maintaining personnel records for each consumer directed  personal
 assistant,  including  time  records  and other documentation needed for
 wages and benefit processing and a copy  of  the  medical  documentation
 required pursuant to regulations established by the commissioner;
   (E) ensuring that the health status of each consumer directed personal
 assistant  is assessed prior to service delivery pursuant to regulations
 issued by the commissioner;
   (F) maintaining records of service authorizations or reauthorizations;
   (G) monitoring the consumer's or, if applicable, the designated repre-
 sentative's continuing ability to fulfill  the  consumer's  responsibil-
 ities under the program and promptly notifying the authorizing entity of
 any  circumstance  that may affect the consumer's or, if applicable, the
 designated representative's ability to fulfill such responsibilities;
   (H) complying with regulations established by the commissioner  speci-
 fying  the  responsibilities of fiscal intermediaries providing services
 under this title; AND
   (I) entering into a department approved  memorandum  of  understanding
 with  the  consumer  that  describes the parties' responsibilities under
 this program[; and
   (J) other related responsibilities which may include, as determined by
 the commissioner, assisting consumers to perform the consumers'  respon-
 sibilities  under  this  section  and department regulations in a manner
 that does not infringe upon the consumer's responsibilities and self-di-
 rection].
   § 3. Paragraphs (b-1), (b-2) and (b-3) of subdivision 4-a  of  section
 365-f of the social services law are REPEALED.
   §  4.  Subdivision 4-b of section 365-f of the social services law, as
 amended by section 8 of part G of chapter 57 of the  laws  of  2019,  is
 amended to read as follows:
   4-b. Actions involving the authorization of a fiscal intermediary.
   (a)  [The  department  may  terminate a fiscal intermediary's contract
 under this section or suspend or limit the fiscal intermediary's  rights
 and privileges under the contract] A FISCAL INTERMEDIARY'S AUTHORIZATION
 MAY BE REVOKED, SUSPENDED, LIMITED OR ANNULLED upon thirty [day's] DAYS'
 written  notice  to  the  fiscal intermediary, if the commissioner finds
 that the fiscal intermediary has failed to comply with the provisions of
 this section or regulations promulgated hereunder.  The  written  notice
 shall include:
   (i)  A  description of the conduct and the issues related thereto that
 have been identified as failure of compliance; and
   (ii) the time frame of the conduct that fails compliance.
   (b) Notwithstanding the foregoing, upon determining  that  the  public
 health  or safety would be imminently endangered by the continued opera-
 tion or actions of the fiscal intermediary, the commissioner may [termi-
 nate]  REVOKE,  SUSPEND,  LIMIT  OR  ANNUL  the  fiscal   intermediary's
 [contract or suspend or limit the fiscal intermediary's rights and priv-
 A. 5281--A                          5

 ileges  under  the  contract]  AUTHORIZATION  immediately  upon  written
 notice.
   (c)  All  orders  or  determinations  under  this subdivision shall be
 subject to review as provided in  article  seventy-eight  of  the  civil
 practice law and rules.
   §  5.  Paragraph (c) of subdivision 4-d of section 365-f of the social
 services law, as added by section 7 of part G of chapter 57 of the  laws
 of 2019, is amended to read as follows:
   (c)  Where  a  fiscal  intermediary is suspending or ceasing operation
 pursuant to an order under subdivision four-b of this section,  [or  has
 failed  to submit an offer for a contract, or has been denied a contract
 under this section,] all the provisions of this subdivision shall  apply
 except  subparagraph (i) of paragraph (a) of this subdivision, notice of
 which to all parties shall be provided by the department as appropriate.
   § 6. Paragraph (d) of subdivision 4-d of section 365-f of  the  social
 services law is REPEALED.
   §  7.  This  act  shall take effect immediately and shall be deemed to
 have been in full force and effect on and after April 1, 2023.