Listed below is a breakdown of the Assembly and Senate One House Bills.
Committee meetings have been announced for this afternoon. Then final budget negotiations will begin. We will certainly keep you posted on how it is moving forward with COLA and Parity issues.
I want to give a special thanks to John Tauriello for breaking the budget down for us. John has recently joined the staff of MHANYS. John was the long time counsel at the NYS Office of Mental Health and then he moved on to become a lobbyist for several years. His knowledge of mental health law in New York is unmatched. We are so lucky to have him on our team.
Glenn Liebman
he/him/his
CEO, MHANYS
(518) 434-0439 | MHANYS.org
Follow us online: MHANYS.org
Facebook: @MHAacrossNYS
Twitter: @MHAacrossNYS
Below is a summary of the mental health and related provisions from the Senate and Assembly, one-house bills, as compared to Governor’s proposed Health & Mental Hygiene Article VII bill.
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Medicaid global cap:
Part A, Page 13: This Part would extend the Medicaid Global Cap through March 31, 2025.
Senate: Would repeal the Global Cap.
Assembly: Agrees to a one-year extension of Global Cap.
Prescriber Prevails:
Part D would eliminate a prescriber’s ability to make a final determination of when a drug’s use is or is not clinically supported under the Medicaid program.
Senate: intentionally omitted this Part.
Assembly: intentionally omitted this Part.
Rural Hospital Closure:
Part E, Section 3, page 185: Rural general hospitals with inpatient units that plan to convert to a “rural emergency hospital,” shall provide a community forum to receive public input on the anticipated impact of the hospital inpatient unit closures, and options to ameliorate anticipated impacts. Hospitals with psychiatric inpatient beds, must notify OMH and the local Director of Community Services of such conversions, and hospitals with inpatient SUD treatment services must notify OASAS.
Senate Agrees with the Governor’s proposal.
Assembly: Intentionally omitted this section.
Managed long term care reform:
Part I, page 220. This part would extend, for a four-year period, the moratorium on approval of new managed long term care (MLTC) plans. During the moratorium existing plans are required to meet certain performance standards and if such standards are not met, DOH has the authority to select new MLTC plans through a competitive bidding process. Importantly, DOH must consult with the Commissioners of OMH, OASAS, OPWDD and the Office of Children and Family Services in developing the content and criteria for the competitive selection process (see p. 227).
Senate would extend the MLTC plan moratorium for a four-year period, but rejects many related provisions and does not require DOH to consult with OMH, OASAS, OPWDD or OCFS in developing the competitive bidding process.
Assembly would extend moratorium for a four-year period, but omits some performance standards, and does not require DOH to consult with OMH, or other state agencies in developing the competitive bidding process.
Managed-care reforms “Pay and Resolve”:
Part J, page 247. This Part generally would require health plans to pay claims for in-network hospital emergency services and resulting inpatient admissions, before determinations of medical necessity are finalized. The hospital would be required to refund overpayments to the health plan only if services are ultimately determined not to be medically necessary or emergent.
Senate: Part J was intentionally omitted.
Assembly: Part J was intentionally omitted.
Medicaid Waiver, eligibility expansion:
Part K, page 256. This Part would expand Medicaid services to incarcerated persons and persons in psychiatric hospitals (i.e., IMD‘s) to align state law with the health equity reform 1115 waiver amendment that was submitted by the State to CMS last year. This expansion would be subject to the Federal waiver approval.
Senate: Includes this amendment to provide expanded Medicaid services for incarcerated persons and persons in IMDs as may be permitted under the proposed federal 1115 waiver.
In addition, the Senate would establish a workgroup of individuals and agency Commissioners, including the OMH Commissioner “with expertise in child welfare and foster care systems”, as well as expertise in Medicaid and “institutions for mental diseases.“ The purposes of the workgroup would be to identify funding sources for services to children and youth in residential treatment programs or IMD’s; identify barriers to access and accessibility of services following expiration of 1115 waiver authority; identify solutions to identified barriers to access; recommend regulatory or statutory changes to promote access to standard Medicaid coverage; evaluate effectiveness of current health insurance coverage and make recommendations to improve the quality and effectiveness of such coverage; and measure the progress of the state to ensure health insurance coverage for children in qualified residential treatment programs or IMD’s.
A report would be due to the Governor and Legislature one year after the workgroup initially convenes.
Assembly: Would include expanded coverage to incarcerated persons but does not include this expanded Medicaid coverage to persons in IMDs.
Expansion of Medicaid Buy-in Program:
Part N, page 288. Subject to federal approval, the Medicaid Buy-In Program would be expanded by increasing both the resource and income limits from 250% of the federal poverty limit to 2250%. Persons above the 250% level would pay a premium, based on a sliding scale. The current age limitation of 65 would be removed, thereby including all otherwise eligible people who are 16 years of age or older. However, the program would be capped at 30,000 eligible participants. The stated intent is to allow more working people with disabilities to enter the workforce without fear of losing health/Medicaid benefits.
This Part would be effective on January 1, 2025 and will cost $60M annually.
Senate: Includes this Part.
Assembly: Accepts expansion of Medicaid Buy-in, but also imposes limitations on monthly premium payments to ensure parity with the ACA (e.g., the monthly premium for someone earning 500% or more of the applicable federal poverty line shall be $1148, but shall not exceed 8.5% of person’s monthly income).
Transformation V, health care capital funding:
Part P, page 320. This Part would establish the 5th Transformation healthcare capital funding program, totaling 1 billion new dollars. Similar to the last round of Transformation, programs licensed or funded by OMH and OASAS would be eligible for such grants.
Up to $500 million would be awarded without competitive bid for traditional capital projects “to build innovative, patient-centered models of care, increase access to care, to improve the quality of care, and to ensure financial sustainability” of providers. An additional $500 million would be available for “technological and tele-health, transformation projects.
Senate: Increases the pool by $200M to a total of $1.2 billion and Includes up to $700M for capital projects, including the development of service capacity in underserved areas, and including at least $150M of the $700 M shall be set aside for a broad range of community based health and behavioral health services.
$500M would be available for technological and tele-health transformation projects, “which shall include projects related to improving cyber security” of which at least $100M would be made available to a broad range of community-based providers, including behavioral health providers.
Assembly: Includes $1 billion funding for such Capital Projects. At least $50 million in the Assembly bill must be awarded to community based health and/or mental hygiene providers.
Expanded Medicaid authorization to certain mental health practitioners:
Part Q, page 324. This Part would expand behavioral health services by authorizing Medicaid reimbursement for licensed mental health counselors, licensed marriage and family therapists, and licensed social workers, who provide services in community health centers and certain other outpatient health settings.
Effective January 1, 2024.
Senate: Includes Part Q.
Assembly: Modifies the Governor’s proposal to also include licensed creative arts therapists.
Interstate Medical licensure compact, and the nurse licensure compact:
Part W, section 30, page 374 and section 31, page 399.
These interstate compacts would allow physicians and nurses to be licensed in multiple states through a streamlined process, and provide an enhanced ability to provide services across state lines.
Senate: intentionally omitted.
Assembly: intentionally omitted.
State Oversight of the Professions:
Part CC, page 489. This Part would transfer the oversight of licensed health and mental hygiene professionals from the State Education Department to the Department of Health. (A similar proposal was rejected by the legislature last year.)
Senate: intentionally omitted part CC
Assembly: intentionally omitted part CC.
COLA:
Part DD, page 1048. This part would provide a 2.5% cost-of-living adjustment (COLA) for fiscal year 2023-24 for community-based human services providers, including OMH and OASAS licensed and funded behavioral health programs. (It should be noted that 2.5% is significantly below the 8.5% rate of inflation, as determined by the applicable Consumer Price Index – Urban, (CPI-U) published by the Bureau of Labor Statistics of the federal Department of Labor.)
Senate: Provides for an 8.5% COLA in fiscal year, 2023–24, and would authorize a prospective annual COLA equal to the CPI –U from the previous July.
Assembly: includes the 8.5% COLA, but does not provide for a prospective annual increase based upon the CPI – U.
Credentialing of Qualified Mental Health Associates:
Part GG, page 1055. This part would create a new “qualified mental health associate“ credential for certain paraprofessionals who provide mental health services, including counseling and supportive assistance to persons with mental illness and their families. OMH would establish approved courses of study, requirements for on-the-job experience, and other criteria for credentialing.
Effective immediately upon enactment.
Senate: intentionally omitted part GG.
Assembly: intentionally omitted part GG.
CCBHCs:
Part HH, page 1057. This part would authorize OMH and OASAS to jointly license certified community behavioral health clinics (CCBHCs).
A new “Indigent Care Program” also would provide state funds to qualified providers (a minimum of 3% of visits must be persons who are uninsured), that suffer losses due to uncompensated care ($22.5M available in July 1, 2023- June 30,2024). If Federal share is not available, payments will be limited to State share only payments.
Effective immediately upon enactment.
Senate: Includes Part HH.
Assembly: Includes Part HH but rejects proposal to authorize OMH and OASAS to receive criminal history information. Also, the Assembly would increase funding for the indigent care program by $10 million/year.
Parity/insurance reforms for behavioral health services:
Part II, page 1063. This part would amend the Insurance and Public Health Laws to improve reimbursement for behavioral health services through both commercial insurance and Medicaid reimbursements. Among the reforms include:
Subpart A: Effective January 1, 2024, expands required minimum inpatient hospital coverage to include “sub-acute care in a medically-monitored residential treatment facility.” Minimum requirements for outpatient care coverage is expanded to include mobile crisis intervention services (without pre-authorization, and regardless of in network participation); outpatient care coordination services, and critical time intervention services and ACT services provided by facilities under the jurisdiction of OMH following discharge from the hospital or ER.
This subpart also would require reimbursement for Article 31 licensed school-based mental health clinic services, at negotiated rates or no less than the applicable Medicaid rate and without regard to network participation status. Insured persons shall not be charged for school-based clinic services (except for copayments, coinsurance, or deductibles under the terms of their policy).
Effective January 1, 2024, applicable to policies or contracts issued, renewed or amended after that date.
Subpart B: Generally prohibits insurers from performing pre-authorization or concurrent reviews within the first 30 days of Mental Health inpatient or residential care, but the provider must notify the insurer of the admission and treatment plan, within two days of admission, must perform daily clinical reviews, and must participate in consultations with the insurer. Exceptions would be made allowing concurrent reviews of individuals who meet clinical criteria, where admission is at a facility designated by OMH for concurrent review, in consultation with DOH and DFS. OMH-designated medical necessity criteria would be required to be used by insurers, as well as evidence-based and age-appropriate clinical review criteria approved by OMH, in consultation with the Division of Financial Services and DOH. This subpart shall become effective one year after it becomes law.
Subpart C: Payment parity will be required for tele-health services provided by providers licensed by OMH, 0ASAS, or OPWDD, without regard to the physical location of the attending practitioner or the patient.
Effective immediately upon enactment and applicable to claims submitted on or after such date.
Subpart D: Insured persons would be authorized to bring private legal actions to address state law parity violations. Penalties would equal damages or $1000, whichever is greater.
Effective immediately upon enactment.
Subpart E: Would prohibit prior authorization of detoxification or treatment of substance use disorders, including buprenorphine and opioid overdose reversal medications.
Effective immediately and applies for policies, issued, renewed, amended, or modified after such date.
Subpart F: Finally, the bill would require the promulgation of regulations to ensure adequate provider network access for mental health and substance use disorder services. These requirements shall include appointment availability standards for initial and follow up visits, time and distance standards that take into consideration reasonable proximity to the enrollee’s residence, established service delivery patterns, the geographic area, and the availability of telehealth services.
In addition, minimal referral and reimbursement requirements are required for out-of-network services provided by OMH or OASAS licensed providers, at no less than the applicable Medicaid rates in effect.
Effective immediately upon enactment.
Senate: Includes all of Part II.
Assembly: intentionally omits Part II.
Penalties Increased for Mental Hygiene Law violations:
Part JJ, page 1095. This Part would increase the ability of OMH to impose greater penalties to help ensure providers comply with applicable law or the terms of their operating certificates. Penalties are increased from $1000 to $2000 per violation, the $15,000 penalty limit per day would be eliminated, and penalties may be considered “at the individual bed level for beds closed without authorization” in inpatient settings.
(It is believed that this Part has been included to provide OMH with greater tools to ensure that general hospitals that closed inpatient psychiatric unit during the pandemic, will reopen such units.) Effective immediately upon enactment.
Senate: Includes Part JJ, but in a manner that inappropriately (and presumably inadvertently) limits the power of the OMH to fine its licensed providers of services that are out of compliance with laws, regulations or the terms of their operating certificates, with the sole exception of general hospitals that limit the number of inpatient beds at levels inconsistent with their operating certificates. This Part would also include mitigating factors for those hospitals as a defense, including: government declared emergencies, unforeseen disasters, catastrophic events, and the frequency and nature of noncompliance. However, the inability to secure proper staff is not a defense if it is foreseeable and prudently could be planned for.
Assembly: intentionally omits Part JJ.
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Senate only provisions:
Part U would include a new article (New York Electronic Health Information Privacy Act) in the General Business Law intended to protect electronic health information, including mental health information. However, information protected under HIPAA is exempt from these provisions “to the extent, the covered entity maintains patient information in the same manner as” the health information protected under this Part. Among other protections it would be illegal to sell such health information to a third-party, or advertise or market products and services using individual’s health or mental health information, without consent. Further, electronic health information must be secured by reasonable administrative, technical and physical safeguards, to protect the security, confidentiality, and integrity of the electronic health information.
Part MM would require alcohol treatment centers (ATCs) operated by OASAS to provide mental health and physical health services within the ATCs to meet the needs of their patients. (The Assembly added $5 million to its budget to hire mental health professionals at the ATCs.)
Part ZZ would require OMH, in collaboration with OCFS, to establish three workgroups to review and make recommendations regarding suicide prevention efforts for children and youth, who are: 1) Black, 2) Latina and 3) LGBTQ+. Reports would be required to be sent to the Governor and Legislature from each workgroup within two years after the effective date of this Part.
Part AAA would amend the definition of “clinical peer reviewer” for purposes of utilization review of services. A reviewer of mental health services must have experience in the delivery of mental health services and, where applicable, possess an appropriate license, certificate, registration or credential.
Part EEE would create a Maternal Mental Health Task Force within OMH. A final report containing recommendations, related to maternal mental health, and perinatal and postpartum mood and anxiety disorders, shall be made to the Governor and the Legislature no later than December 31, 2023.
Part GGG would establish a quality incentive program for Medicaid managed care organizations (MCO) to distribute funds based upon MCOs performance in meeting certain quality objective.
Part HHH OMH in collaboration with OASAS would establish Daniel’s Law Task Force to study law enforcement and non-police responses to crises of persons with behavioral health issues, and establish a pilot program regarding community responses to persons experiencing behavioral health crises. $10 million is added to the Senate budget for these purposes. A report would be required to be submitted to the Governor and Legislature no later than December 31, 2025.
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Assembly only provisions:
Part KK: would establish the Mental Health Housing Evaluation Task Force for Aging in Place within OMH. The task force would make recommendations including: remove barriers in mental health housing programs to allow people to age in place, identify changes in policy or regulations, make such residences ADA compliant, provide necessary training for staff, and recommend types of assistance to consider when transporting residents to medical appointments and follow up care. The task force would make a report 12 months after the effective date of this Part.
Part LL would eliminate the April 1, 2023 sunset date that would have required school-based health centers to provide Medicaid reimbursable services through managed care plans.
Part MM: This Part would prohibit the Commissioner of Health from establishing any limits on the duration of eligibility for enrollees with chronic conditions in Health Homes, if such persons meet all other eligibility criteria.
Part OO: This Part would guarantee that FQHCs (or entities eligible to be so designated), are paid their full Medicaid reimbursement rate for tele-health services regardless of the location of the patient or the provider, or the modality of the service, including such facilities that are also licensed by OMH under article 31 of the Mental Hygiene Law.
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