S T A T E O F N E W Y O R K
________________________________________________________________________
2237--A
2023-2024 Regular Sessions
I N S E N A T E
January 19, 2023
___________
Introduced by Sens. RIVERA, BRESLIN, BRISPORT, BROUK, CHU, CLEARE,
COMRIE, COONEY, FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM,
HINCHEY, HOYLMAN-SIGAL, JACKSON, KAVANAGH, KENNEDY, LIU, MAY, MAYER,
MYRIE, PARKER, PERSAUD, RAMOS, SALAZAR, SANDERS, SEPULVEDA, SERRANO,
STAVISKY, THOMAS, WEBB -- read twice and ordered printed, and when
printed to be committed to the Committee on Health -- reported favora-
bly from said committee and committed to the Committee on Finance --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the social services law, in relation to coverage for
certain individuals under the 1332 state innovation program
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 369-ii of the social services law, as added by
section 3 of part H of chapter 57 of the laws of 2023, is amended to
read as follows:
§ 369-ii. 1332 state innovation program. 1. Authorization. Notwith-
standing section three hundred sixty-nine-gg of this title, subject to
federal approval, if it is in the financial interest of the state to do
so, the commissioner of health is authorized, with the approval of the
director of the budget, to establish a 1332 state innovation program
pursuant to section 1332 of the patient protection and affordable care
act (P.L. 111-148) and subdivision twenty-five of section two hundred
sixty-eight-c of the public health law. The commissioner of health's
authority pursuant to this section is contingent upon obtaining and
maintaining all necessary approvals from the secretary of health and
human services and the secretary of the treasury based on an application
for a waiver for state innovation. The commissioner of health [may]
SHALL take all actions necessary to obtain such approvals.
2. Definitions. For the purposes of this section:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04552-02-3
S. 2237--A 2
(a) "Eligible organization" means an insurer licensed pursuant to
article thirty-two or forty-two of the insurance law, a corporation or
an organization under article forty-three of the insurance law, or an
organization certified under article forty-four of the public health
law, including providers certified under section forty-four hundred
three-e of the public health law.
(b) "Approved organization" means an eligible organization approved by
the commissioner of health to underwrite a 1332 state innovation health
insurance plan pursuant to this section.
(c) "Health care services" means:
(i) the services and supplies as defined by the commissioner of health
in consultation with the superintendent of financial services, and shall
be consistent with and subject to the essential health benefits as
defined by the commissioner in accordance with the provisions of the
patient protection and affordable care act (P.L. 111-148) and consistent
with the benefits provided by the reference plan selected by the commis-
sioner of health for the purposes of defining such benefits, and shall
include coverage of and access to the services of any national cancer
institute-designated cancer center licensed by the department of health
within the service area of the approved organization that is willing to
agree to provide cancer-related inpatient, outpatient and medical
services to all enrollees in approved organizations' plans in such
cancer center's service area under the prevailing terms and conditions
that the approved organization requires of other similar providers to be
included in the approved organization's network, provided that such
terms shall include reimbursement of such center at no less than the
fee-for-service medicaid payment rate and methodology applicable to the
center's inpatient and outpatient services;
(ii) dental and vision services as defined by the commissioner of
health, and
(iii) as defined by the commissioner of health and subject to federal
approval, certain services and supports provided to enrollees who have
functional limitations and/or chronic illnesses that have the primary
purpose of supporting the ability of the enrollee to live or work in the
setting of their choice, which may include the individual's home, a
worksite, or a provider-owned or controlled residential setting.
(d) "Qualified health plan" means a health plan that meets the crite-
ria for certification described in § 1311(c) of the patient protection
and affordable care act (P.L. 111-148), and is offered to individuals
through the NY State of Health, the official health Marketplace, or
Marketplace, as defined in subdivision two of section two hundred
sixty-eight-a of the public health law.
(e) "Basic health insurance plan" means a health plan providing health
care services, separate and apart from qualified health plans, that is
issued by an approved organization and certified in accordance with
section three hundred sixty-nine-gg of this title.
(f) "1332 state innovation plan" means a standard health plan provid-
ing health care services, separate and apart from a qualified health
plan and a basic health insurance plan, that is issued by an approved
organization and certified in accordance with this section.
3. State innovation plan eligible individual. (a) A person is eligible
to receive coverage for health care under this section if they:
(i) reside in New York state and are under sixty-five years of age,
INCLUDING INDIVIDUALS THAT ARE INELIGIBLE FOR THE BASIC HEALTH PROGRAM
UNDER 42 U.S.C. SECTION 18051 ON THE BASIS OF IMMIGRATION STATUS
PROVIDED THEY ARE DETERMINED ELIGIBLE PURSUANT TO SUBDIVISION NINE OF
S. 2237--A 3
THIS SECTION AND ARE DETERMINED ELIGIBLE THROUGH THE WAIVER PROCESS TO
RECEIVE COVERAGE UNDER THIS SECTION REGARDLESS OF DIRECT FEDERAL FINAN-
CIAL SUPPORT FOR SUCH INDIVIDUALS;
(ii) are not eligible for medical assistance under title eleven of
this article, EXCLUDING ELIGIBILITY FOR LIMITED MEDICAL ASSISTANCE FOR
THE TREATMENT OF AN EMERGENCY MEDICAL CONDITION AUTHORIZED PURSUANT TO
42 U.S.C. 1396, or for the child health insurance plan described in
title one-A of article twenty-five of the public health law;
(iii) are not eligible for minimum essential coverage, as defined in
section 5000A(f) of the Internal Revenue Service Code of 1986, or is
eligible for an employer-sponsored plan that is not affordable, in
accordance with section 5000A(f) of such code; and
(iv) have household income at or below two hundred fifty percent of
the federal poverty line defined and annually revised by the United
States department of health and human services for a household of the
same size; and has household income that exceeds one hundred thirty-
three percent of the federal poverty line defined and annually revised
by the United States department of health and human services for a
household of the same size; PROVIDED, however, THAT MAGI eligible
noncitizens lawfully present in the United States, AND INDIVIDUALS THAT
ARE INELIGIBLE FOR THE BASIC HEALTH PROGRAM UNDER 42 U.S.C. SECTION
18051 ON THE BASIS OF IMMIGRATION STATUS with household incomes at or
below one hundred thirty-three percent of the federal poverty line shall
be eligible to receive coverage for health care services pursuant to the
provisions of this section [if such noncitizen would be ineligible for
medical assistance under title eleven of this article due to their immi-
gration status].
(b) Subject to federal approval, a child born to an individual eligi-
ble for and receiving coverage for health care services pursuant to this
section who but for their eligibility under this section would be eligi-
ble for coverage pursuant to subparagraphs two or four of paragraph (b)
of subdivision one of section three hundred sixty-six of this article,
shall be administratively enrolled, as defined by the commissioner of
health, in medical assistance and to have been found eligible for such
assistance on the date of such birth and to remain eligible for such
assistance for a period of one year.
(c) Subject to federal approval, an individual who is eligible for and
receiving coverage for health care services pursuant to this section is
eligible to continue to receive health care services pursuant to this
section during the individual's pregnancy and for a period of one year
following the end of the pregnancy without regard to any change in the
income of the household that includes the pregnant individual, even if
such change would render the pregnant individual ineligible to receive
health care services pursuant to this section.
(d) For the purposes of this section, 1332 state innovation program
eligible individuals are prohibited from being treated as qualified
individuals under section 1312 of the Affordable Care Act and as eligi-
ble individuals under section 1331 of the ACA and enrolling in qualified
health plan through the Marketplace or standard health plan through the
Basic Health Program.
4. Enrollment. (a) Subject to federal approval, the commissioner of
health is authorized to establish an application and enrollment proce-
dure for prospective enrollees. Such procedure will include a verifica-
tion system for applicants, which must be consistent with 42 USC §
1320b-7.
S. 2237--A 4
(b) Such procedure shall allow for continuous enrollment for enrollees
to the 1332 state innovation program where an individual may apply and
enroll for coverage at any point.
(c) Upon an applicant's enrollment in a 1332 state innovation plan,
coverage for health care services pursuant to the provisions of this
section shall be retroactive to the first day of the month in which the
individual was determined eligible, except in the case of program tran-
sitions within the Marketplace.
(d) A person who has enrolled for coverage pursuant to this section,
and who loses eligibility to enroll in the 1332 state innovation program
for a reason other than [citizenship status,] lack of state residence,
[failure to provide a valid social security number,] providing inaccu-
rate information that would affect eligibility when requesting or renew-
ing health coverage pursuant to this section, or failure to make an
applicable premium payment, before the end of a twelve month period
beginning on the effective date of the person's initial eligibility for
coverage, or before the end of a twelve month period beginning on the
date of any subsequent determination of eligibility, shall have their
eligibility for coverage continued until the end of such twelve month
period, provided that the state receives federal approval for using
funds under an approved 1332 waiver.
5. Premiums. Subject to federal approval, the commissioner of health
shall establish premium payments enrollees in a 1332 state innovation
plan shall pay to approved organizations for coverage of health care
services pursuant to this section. Such premium payments shall be estab-
lished in the following manner:
(a) up to fifteen dollars monthly for an individual with a household
income above two hundred percent of the federal poverty line but at or
below two hundred fifty percent of the federal poverty line defined and
annually revised by the United States department of health and human
services for a household of the same size; and
(b) no payment is required for individuals with a household income at
or below two hundred percent of the federal poverty line defined and
annually revised by the United States department of health and human
services for a household of the same size.
6. Cost-sharing. The commissioner of health shall establish cost-shar-
ing obligations for enrollees, subject to federal approval, including
childbirth and newborn care consistent with the medical assistance
program under title eleven of this article. There shall be no cost-shar-
ing obligations for enrollees for:
(a) dental and vision services as defined in subparagraph (ii) of
paragraph (c) of subdivision two of this section; and
(b) services and supports as defined in subparagraph (iii) of para-
graph (c) of subdivision two of this section.
7. Rates of payment. (a) The commissioner of health shall select the
contract with an independent actuary to study and recommend appropriate
reimbursement methodologies for the cost of health care service coverage
pursuant to this section. Such independent actuary shall review and make
recommendations concerning appropriate actuarial assumptions relevant to
the establishment of reimbursement methodologies, including but not
limited to; the adequacy of rates of payment in relation to the popu-
lation to be served adjusted for case mix, the scope of health care
services approved organizations must provide, the utilization of such
services and the network of providers required to meet state standards.
(b) Upon consultation with the independent actuary and entities
representing approved organizations, the commissioner of health shall
S. 2237--A 5
develop reimbursement methodologies and fee schedules for determining
rates of payment, which rates shall be approved by the director of the
division of the budget, to be made by the department to approved organ-
izations for the cost of health care services coverage pursuant to this
section. Such reimbursement methodologies and fee schedules may include
provisions for capitation arrangements.
(c) The commissioner of health shall have the authority to promulgate
regulations, including emergency regulations, necessary to effectuate
the provisions of this subdivision.
(d) The department of health shall require the independent actuary
selected pursuant to paragraph (a) of this subdivision to provide a
complete actuarial report, along with all actuarial assumptions made and
all other data, materials and methodologies used in the development of
rates for the 1332 state innovation plan authorized under this section.
Such report shall be provided annually to the temporary president of the
senate and the speaker of the assembly.
8. An individual who is lawfully admitted for permanent residence,
permanently residing in the United States under color of law, or who is
a non-citizen in a valid nonimmigrant status, as defined in 8 U.S.C.
1101(a)(15), and who would be ineligible for medical assistance under
title eleven of this article due to their immigration status if the
provisions of section one hundred twenty-two of this chapter were
applied, shall be considered to be ineligible for medical assistance for
purposes of paragraphs (b) and (c) of subdivision three of this section.
9. (A) IN DETERMINING ELIGIBILITY FOR RESIDENTS OF THE STATE THAT ARE
INELIGIBLE FOR THE BASIC HEALTH PROGRAM UNDER 42 U.S.C. SECTION 18051 ON
THE BASIS OF IMMIGRATION STATUS, THE COMMISSIONER OF HEALTH MAY PLACE
LIMITATIONS ON ENROLLMENT TO ENSURE THAT THE COSTS ASSOCIATED WITH
RENDERING SERVICES TO THIS POPULATION DO NOT EXCEED THE REVENUES ANTIC-
IPATED TO BE TRANSFERRED TO THE 1332 STATE INNOVATION PROGRAM FUND,
PURSUANT TO SECTION NINETY-EIGHT-D OF THE STATE FINANCE LAW. IN ESTAB-
LISHING ANY LIMITATIONS PURSUANT TO THIS SUBDIVISION THE COMMISSIONER OF
HEALTH SHALL ENROLL AT LEAST TWO HUNDRED FORTY THOUSAND INDIVIDUALS AND
MAY ENROLL ADDITIONAL INDIVIDUALS AS REASONABLY PRACTICABLE WHILE ENSUR-
ING CONTINUAL COVERAGE FOR SUCH ADDITIONAL INDIVIDUALS BASED ON CURRENT
AND ANTICIPATED 1332 STATE INNOVATION PROGRAM FUND RESERVES.
(B) IN DETERMINING ANY LIMITATIONS ON ENROLLMENT, THE COMMISSIONER OF
HEALTH SHALL DETERMINE INCOME BANDS FOR SUCH INDIVIDUALS FROM ZERO TO
TWO HUNDRED FIFTY PERCENT OF THE FEDERAL POVERTY LINE DEFINED AND ANNU-
ALLY REVISED BY THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES FOR A HOUSEHOLD OF THE SAME SIZE. THE COMMISSIONER OF HEALTH
SHALL PRIORITIZE THE ENROLLMENT OF INDIVIDUALS FROM THE LOWEST INCOME
BAND FIRST AND THEN THE REMAINING INCOME BANDS IN ASCENDING ORDER.
(C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVI-
SION, THE COMMISSIONER OF HEALTH MAY ALSO INCLUDE SUBSETS OF THE POPU-
LATION WHOSE CONTINUED HEALTH AND WELL-BEING WOULD BE SIGNIFICANTLY AT
RISK WITHOUT ROUTINE ACCESS TO HEALTH CARE. POPULATION SUBSETS TO BE
PRIORITIZED FOR ENROLLMENT SHALL BE DETERMINED BY THE COMMISSIONER OF
HEALTH AND SHALL INCLUDE BUT NOT BE LIMITED TO: (I) INDIVIDUALS WITH
LIFE THREATENING CONDITIONS, (II) INDIVIDUALS IN NEED OF AN ORGAN TRANS-
PLANT; AND (III) INDIVIDUALS WITH SIGNIFICANT BEHAVIORAL HEALTH ISSUES
INCLUDING BUT NOT LIMITED TO SERIOUS MENTAL ILLNESS OR SUBSTANCE USE
DISORDER.
10. THE COMMISSIONER OF HEALTH SHALL TAKE ALL ACTIONS NECESSARY TO
OBTAIN ALL NECESSARY APPROVALS FROM THE SECRETARY OF HEALTH AND HUMAN
SERVICES AND THE SECRETARY OF THE TREASURY TO UTILIZE MONEYS TRANSFERRED
S. 2237--A 6
TO THE BASIC HEALTH PROGRAM TRUST FUND, PURSUANT TO SECTION NINETY-SEV-
EN-OOOO OF THE STATE FINANCE LAW, AS ADDED BY SECTION FIFTY-THREE OF
PART C OF CHAPTER SIXTY OF THE LAWS OF TWO THOUSAND FOURTEEN, FOR COSTS
ASSOCIATED WITH THE PROVISION OF HEALTH CARE SERVICES TO ALL PERSONS
ELIGIBLE FOR COVERAGE UNDER THE WAIVER. IF APPROVAL IS NOT GRANTED FOR
ALL PERSONS ELIGIBLE FOR COVERAGE UNDER THE WAIVER, THE COMMISSIONER OF
HEALTH SHALL TAKE ALL ACTIONS NECESSARY TO OBTAIN APPROVAL FOR THE USE
OF MONEYS OF THE BASIC HEALTH PROGRAM TRUST FUND FOR COSTS ASSOCIATED
WITH THE PROVISION OF HEALTH CARE SERVICES TO INDIVIDUALS UNDER THE
WAIVER THAT WOULD OTHERWISE BE ELIGIBLE FOR PARTICIPATION IN THE BASIC
HEALTH PROGRAM, ESTABLISHED PURSUANT TO SECTION THREE HUNDRED SIXTY-
NINE-GG OF THIS TITLE.
11. Reporting. The commissioner of health shall submit a report to the
temporary president of the senate and the speaker of the assembly annu-
ally by December thirty-first. The report shall include, at a minimum,
an analysis of the 1332 state innovation program and its impact on the
financial interest of the state; its impact on the Marketplace including
enrollment and premiums; its impact on the number of uninsured individ-
uals in the state; its impact on the Medicaid global cap; ANY ENROLLMENT
LIMITATIONS ESTABLISHED PURSUANT TO SUBDIVISION NINE OF THIS SECTION
INCLUDING THE RATIONALE AND SUPPORTING FISCAL CALCULATIONS USED TO
JUSTIFY SUCH LIMITATION, INCLUDING ANY HISTORICAL DATA, IF AVAILABLE,
FOR THE PREVIOUS THREE YEARS RELATED TO ANY PREVIOUS LIMITATIONS OF
ENROLLMENT, FUNDS TRANSFERRED TO THE 1332 STATE INNOVATION PROGRAM FUND
PURSUANT TO SECTION NINETY-EIGHT-D OF THE STATE FINANCE LAW, AND TOTALS
ON ANY SAVINGS TO THE STATE DUE TO COVERAGE OF RESIDENTS OF THE STATE
THAT ARE INELIGIBLE FOR THE BASIC HEALTH PROGRAM UNDER 42 U.S.C. SECTION
18051 ON THE BASIS OF IMMIGRATION STATUS; ANY MONEYS UTILIZED FROM THE
BASIC HEALTH PLAN TRUST FUND TO SUPPORT THE DELIVERY OF HEALTH CARE
SERVICES TO PERSONS ELIGIBLE FOR COVERAGE UNDER THE WAIVER; and the
demographics of the 1332 state innovation program enrollees including
age and immigration status.
[10.] 12. Severability. If the secretary of health and human services
or the secretary of the treasury do not approve any provision of the
application for a state innovation waiver, such decision shall in no way
affect or impair any other provisions that the secretaries may approve
under this section.
§ 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
§ 3. This act shall take effect on the same date and in the same
manner as section 3 of part H of chapter 57 of the laws of 2023 amending
the social services law relating to enacting the 1332 state innovation
program, takes effect.
