Mental Health Update

Each year the Governor is required under Article VII of the State Constitution to introduce legislation to amend statutory provisions that are essential to enact the state budget. Most of the statutory amendments that affect the health and mental hygiene systems are included in a bill called (in Albany-speak) the Health & Mental Hygiene, Article VII Bill.

 

In early March, the State Senate and Assembly introduce their versions of these budget priorities in what are referred to as “one house” bills.

 

Below is a summary of proposed statutory amendments that would affect persons with mental health concerns and providers, including the Governor’s proposal followed by the proposals of each house of the legislature.

 

Thank you to MHANYS Counsel and Special Assistant John Tauriello for his analysis

 

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Health & Mental Hygiene-Article VII Bill Summary:

 

Part A: Medicaid global cap extended

The Medicaid global cap would be extended through the 2025-26 state fiscal year..

 

   Senate: Would repeal the Medicaid global cap.

   Assembly: Agrees with Governor’s proposal.

 

Part B, Section 2: Special Needs Plans Authority Extended 

The authority for OMH, in consultation with DOH, to certify Medicaid “special needs plans” would be extended for 5 years, until March 31, 2030.

 

   Senate: Agrees with Governor’s proposal.

   Assembly: Agrees with Governor’s proposal.

 

Part B, section 5: Parity in Coverage for Telehealth Services 

Extends for one year until April 1, 2025, requirements that Medicaid reimbursement for services provided via Telehealth, shall be at the same rate of payment as in-person reimbursement rates.

 

   Senate: Would make such coverage permanent.

   Assembly: Agrees with Governor’s proposal.

 

Part B, sec’t 10: Extension of Regulatory Waiver Authority of “O” agencies and DOH

Extends until April 1, 2026, the authority of DOH and the four mental hygiene agencies to waive regulatory requirements related to providers involved in DSRIP projects or “…authorized replication and scaling activities, to avoid duplicative requirements.”

 

   Senate: Agrees with Governor’s proposal.

   Assembly: Intentionally omitted.

 

Part H: Managed care plans and managed long-term care plans

Provides for a moratorium on processing of applications for Medicaid managed care plans and managed long-term care plans or applications to expand the scope of eligible enrollee populations submitted on or after April 1, 2024. There are limited exceptions for applications  submitted prior to 1/1/24 to address serious concerns with care delivery, including a lack of adequate access to “special needs services.“

DOH would be required to conduct a competitive bidding process prior to the approval and certification of new Medicaid managed care plans or managed long-term care plans, including special needs managed care plans and HARPs, under which DOH shall require new applicants to comply with a number of criteria and enrollee protections, including “adequate accessibility and geographic distribution of network providers taking into account the needs of persons with disabilities.”

Further, DOH must determine that all content and criteria requirements are fully met by the plan applicants, including patient protections for persons with disabilities and youth, in consultation with OMH, OPWDD, OASAS, and OCFS “as applicable.”

 

   Senate: Intentionally omitted.

   Assembly: Intentionally omitted.

 

Part H, section 9: Enhanced Enforcement Tools Over Managed Care Organizations

DOH would be entitled, in its “sole discretion,” to recover “liquidated damages*” from managed care organizations for failure to meet contractual obligations and performance standards under their contracts with the state. Damages could range up to $25,000 per violation. Further, such damages must be paid out of the administrative costs and profits of the managed care organization and not from payments to providers of services, or payments to subcontractors.

This provision would add another tool for DOH to enforce the contractual obligations and requirements of managed care organizations.

*(Liquidated damages are specified dollar amounts that are established in contracts, in the event of a breach by the contractee- in this case, the managed care organization.)

 

   Senate: Intentionally omitted.

   Assembly: Intentionally omitted.

 

Part I: Repeal of Prescriber Prevails (including antipsychotic and anti-depressant medications)

The ability of prescribers to prescribe drugs that are not on the Medicaid program “preferred drug list” would be eliminated, effective 1/1/25. As a result, the state could override a prescriber’s professional judgment, including medications prescribed for persons with mental illness.

Subdivisions 25 and 25-a of section 364-j of the Social Services Law would be repealed.  They currently require managed care providers to cover all medically necessary atypical antipsychotic and anti-depressant medications, including non-formulary drugs, upon demonstration by the prescriber that in his or her reasonable professional judgment, such medications are medically necessary and warranted.

 

   Senate: Intentionally omitted.

   Assembly: Intentionally omitted.

 

Part L, section 2, Repeal of the Quality Enhancement Program for Adult Care Facilities 

The statutory authority for the DOH program called “enhanced quality of adult living program” (EQUAL) would be repealed.

The EQUAL program provides grants to improve the quality of life for adult care facility residents.  EQUAL grants may be used to provide clothing allowances, improve food quality, provide outdoor leisure projects and events, and improve resident quality of life. Funds could also be used to finance capital improvements to the physical environment to promote higher resident quality of life.

(Elimination of the EQUAL program likely would impact many persons with mental illnesses who reside in adult homes.)

 

   Senate: Intentionally omitted.

   Assembly: Intentionally omitted.

 

Part M, Expanded Medicaid and CHIP Coverage for Children

Children ages birth to 6, who are determined to be eligible for Medicaid or CHIP would remain eligible for those benefits until the later of: 1) the last day following of the 12th month following the determination or renewal of eligibility, or 2) the last day of the month in which the child reaches the age of six.

This Part would take effect on January 1, 2025.

 

   Senate: Accepts the Governor’s proposal.

   Assembly: The Assembly accepts the Governor’s proposal, but provides additional protections for children under the age of six who, if eligible, could enroll in the CHIP or Medicaid programs, if they are determined to be ineligible for the other program.

 

Part O, Consumer protections for medical debt

This Part would limit the ability of hospitals to sue for recovery of medical debt and unpaid bills from patients who earn at or below 400% of the federal poverty level. It would expand the hospital financial assistance programs for low income persons, limit the size of monthly payments and interest, delay debt collection until at least 180 days after the first bill is sent, and implement other financial protections for patients with medical debt.

 

In addition, section 3 of Part O would amend the Public Health Law to require that patient consent for treatment of health services be obtained separately from consent for payment.

 

   Senate: A modified version is proposed.

   Assembly: Intentionally omitted.

 

Part S, Healthcare Safety Net Transformation Program 

“Safety net hospitals”  and “partner organizations“ may jointly apply for up to $500 million in funding to improve access, equity, quality, and outcomes while improving the financial sustainability of safety net hospitals.

Awards would be made without competitive bid, DOH could waive regulations to facilitate implementation of projects, and a five-year operational plan would be required to be submitted by applicants

Partner organizations may include community-based organizations that can assist in the transformation of the hospital.

(While there is no definition of “partner organizations,” we believe that this term would include community-based behavioral health providers. However, unlike previous transformation grant programs, community-based behavioral health providers are not explicitly referenced as entities that could apply for awards.

After the state’s experience under DSRIP, we fear that community-based organizations may not receive their fair share of this funding.)

 

   Senate: Would appropriate $1.5 billion in transformation funding to transform, redesign, and strengthen quality healthcare services for the following: capital projects, debt retirement, working capital, noncapital projects to build innovative, patient-centered models of care, increase access to care, improve cyber-security, protect patient data, improve quality of care, ensure financial sustainability, and develop capacity in underserved areas of the state.

DOH would be required to disburse awards based upon certain awardee process and performance metrics and milestones.

A broad range of behavioral health providers, including community-based programs funded by the “O” agencies and by local governmental units, would be eligible for grants.

The Senate’s proposed transformation grant statute is similar to past year’s transformation grant programs.

 

     Assembly: Intentionally omitted, however, the Assembly does include a $1 billion      appropriation for capital needs of healthcare facilities.

 

Part U: Public Health Surveillance and Early Warning System 

This Part would establish a public health surveillance and early warning system for impending public health emergencies, to document the impact of interventions, to track progress toward specified health goals and priorities, to determine the epidemiology of health outcomes, to establish priorities and inform public health strategies.

This Part also amends the existing prescription monitoring registry for controlled substances, by exempting prescribing practitioners from consulting the registry when they order a controlled substance on the premises of a licensed inpatient mental health facility, prison or a nursing home.

 

   Senate: Accepts some of the provisions of this Part.

   Assembly: Intentionally omitted.

 

Part W:  Inter-agency Elder Justice Coordinating Council

A new Inter-agency Elder Justice Coordinating Council would be created to protect older adults from abuse and mistreatment and to promote greater elder justice and coordinate responses from state and local government and other entities when elder abuse is reported.

The Council would develop a state plan, strategies, programs, and improve coordination and collaboration to achieve these goals. The Council would be chaired by the Director of the State Office for the Aging, and include representatives from several state agencies, including OMH.

 

   Senate: Included with amendments.

   Assembly: Intentionally omitted.

 

Part Y: Reinvestment Act – Made Permanent 

This Part would make the Community Mental Health Reinvestment Act permanent. The Act is currently scheduled to sunset on March 31, 2024.

 

   Senate: Would only extend the Reinvestment Act until 3/31/2027, and would require annual reporting of certain performance metrics.

   Assembly: Would only extend the Reinvestment Act until 3/31/2027.

 

Part Z,  Makes Permanent Mental Hygiene Demonstration Program Authority

This Part would make permanent the ability of the Commissioners in the Department of Mental Hygiene to develop three time-limited demonstration programs to test and evaluate new methods of organizing, financing, staffing and providing services for mentally disabled persons, without regard to competitive bidding. These demonstration programs may include innovative financing and staffing arrangements, and specific programs to serve mentally disabled persons.

 

   Senate:  Would only extend the demonstration program authority for an additional three years until March 31, 2027, and would require annual reporting of certain performance metrics.

   Assembly: Would only extend the demonstration program authority for one year, until 3/31/2025.

 

Part AA, Commercial Insurance Rates for Outpatient Behavioral Health Services 

Would require commercial health insurance reimbursement rates for certain outpatient behavioral health services to be at least at the same level as comparable Medicaid rates for the same services.

OMH service rates impacted by this law would include in-network, licensed outpatient services, such services provided in OMH-operated facilities, and licensed crisis stabilization center services.

OASAS outpatient services impacted by this Part include in-network services that are licensed, certified or otherwise authorized by OASAS and would include outpatient, intensive outpatient, outpatient rehabilitation, and opioid treatment.

(This part would take effect January 1, 2025, and apply to policies and contracts issued, renewed, modified or amended on and after such date.) 

 

      Senate: Includes the Governor’s proposal.

   Assembly:  The Assembly proposal largely mirrors, the Governor’s language, but permits negotiation between the insurer and participating facility, provided that the rates could not be less than the annual rates paid under the Medicaid program. Such annual rates would be set no later than April 1 of each year for the subsequent calendar year.

 

Part BB, Comprehensive Psychiatric Emergency Programs (CPEPs) Made Permanent 

This Part would make permanent the statutory authority for the establishment and operation of CPEPs by OMH, which is scheduled to expire on July 1, 2024.

 

   Senate: Would only extend the CPEP program for a three-year period until 7/1/2027 and would require annual reporting of certain performance metrics.

   Assembly: Would extend the CPEP program for a four-year period until July 1, 2028.

 

 

Part CC,  Justice Center Notifications to OMIG 

Substantiated reports of abuse or neglect in facilities receiving Medicaid reimbursement, would be required to be reported by the Justice Center to the Office of the Medicaid Inspector General (OMIG), if such information could result in possible exclusion or other sanctions.

 

   Senate: Includes the Governor’s proposal.

   Assembly: Intentionally omitted.

 

Part DD, Representative Payee Authority

This Part would make permanent the “representative payee” authority for directors of state-operated mental hygiene facilities to receive federal and state benefits for individuals receiving care in such facilities.

 

    Senate:  Includes the Governor’s proposal.

    Assembly: Would extend the “representative payee” authority for a three-year period  until June 30, 2027.

 

Part FF, Human Services COLA

This Part would provide a 1.5% COLA for state fiscal year 2024–25, to most community-based human services providers, including community-based mental health providers.

 

   Senate:  Would increase the COLA to 3.2% and would delete language that prevents receipt of both this COLA and other COLAs, inflation factors, or trend factors that are newly applied effective April 1, 2024.

However, entities receiving such COLA, would be required to submit a resolution from their governing body stating that funding shall be used “ solely to increase the hourly and/or salary, wages of non-executive direct care staff, non-executive direct support professionals, and non-executive clinical staff.”

 

   Assembly: Would increase the COLA to 3.2%, however, would limit COLAs to only fund salary wages of non-executive, direct care, direct support, and clinical staff.

However, entities receiving such COLA, would be required to submit a resolution from their governing body stating that funding shall be used “solely to increase the hourly and/or salary wages of non-executive direct care staff, non-executive direct support professionals, and non-executive clinical staff.”

 

 

Part GG, DOH contracting flexibility under the 1115 Medicaid waiver

Authorizes the Commissioner of Health to enter into contracts to implement projects under the 1115 waiver approval, without competitive bid or an RFP process. Also establishes a streamlined process for approval of contracts issued after April 1, 2024, yet still within the discretion of the Commissioner of Health.

 

   Senate: Includes the Governor’s proposal.

   Assembly: Intentionally omitted.

 

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Assembly and Senate Proposals Not included in the Governor’s Bill

 

 

Senate Part RR, Medicaid 3% rate increases

Both houses would provide for a 3% across-the-board Medicaid rate increase, however, it explicitly states that it does “not apply to payments made by other state agencies, including, but not limited to, those made pursuant to article 16, 31 or 32 of the mental hygiene law.“

(The language is not completely clear, but it appears that this rate increase may not apply to programs under the jurisdiction of the “O“ agencies.)

 

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Assembly Only Proposals:

 

Part II, Continued carve out of school-based health centers from Medicaid managed  care

Would prohibit a carve-in of school-based health centers into the Medicaid managed care program.

 

Part JJ, Medicaid telehealth reimbursement parity for FQHC’s, 

Would require reimbursement parity for telehealth services provided by FQHC’s under the Medicaid program, including those facilities that are also licensed by OMH or OASAS.

 

Part, LL, First Responder Peer Support Program Act

Authorizes the Commissioner of OMH to establish a statewide grant program to establish peer to peer mental health programs for first responders. Grants could be provided to eligible entities, subject to appropriations. The Commissioner would establish standards that shall include: training for first responder peer volunteers and best practices for addressing the needs of the first responders, including “a warm handoff to mental health services” for those identified as being in distress. Training in mental illness could include but not be limited to “helping individuals gain a better understanding of the effects of trauma, repetitive exposure, signs and symptoms of trauma, triggers of a traumatic event, coping mechanisms, suicide prevention, as well as available, tools, resources, and local mental health services” for first responders. First responders would include firefighters, police officers, EMS personnel, 911 operators and dispatchers.

 

Part MM: Daniel’s Law Pilot Program

Requires OMH to establish the Daniel’s law pilot program to provide trauma informed, community-led responses and diversions for individuals who may be experiencing a mental health or addiction crisis, with a primary intent to prevent unnecessary law enforcement interaction with individuals in crisis.

 

Part OO: Medicaid Investment Fund (and PPGG Part X)

This proposal would establish a $4B fund consisting of taxes imposed upon managed care organizations. The state would be required to apply to CMS for approval of this action. (Apparently, this proposal is based upon actions taken in at least two other states that allow them to draw down federal share on these taxes, which can then be reinvested into services outside of the Medicaid cap.)

 

 

Senate Only Proposals:

 

Part SS: Youth Telehealth Mental Health Services Program

Would create a youth mental telehealth services program to facilitate access to mental health services and SUD services for youth, to respond to identified mental health needs. Up to five mental telehealth services annually would be provided at no cost to the individual. An appropriation of $5 million is included in the Senate’s OMH Aid to Localities budget.

 

Part UU, Wage enhancement for I/DD direct support employees

Would provide up to $2000 in 2024 and up to $4000 in 2025 for eligible employees who serve persons with intellectual and developmental disabilities. Eligible titles of employees would make less than $75,000 per year, and would be determined by the Commissioner of OPWDD and the Director of the Budget.

Employees in facilities under the jurisdiction of OMH or OASAS would not be eligible for these enhancements.

 

Part YY, Personal Needs Allowance Increases

This Part would significantly increase the personal needs allowances (PNA) of persons who are in residential or inpatient facilities, who receive SSI or additional state payments. Persons who are patients in hospitals licensed or operated by OMH would receive PNA increases from $35 to $89 effective January 1, 2025.

 

Part AAA Provider protections under OMIG audits.

This part would provide a number of due process, notice and other protections to providers who are subject to OMIG audits or reviews, including a right to a fair hearing.

OMIG financial recovery or adjustment actions could not commence prior to 30 days after receipt of written notice of the determination.  With regard to overpayments based upon a provider’s administrative or technical error, the provider shall have the longer of 60 days from the notice of the mistake or six years from the date of service to submit a corrected claim. Providers will have some ability to submit corrected claims when based upon administrative or technical errors, and no overpayment shall be calculated for administrative or technical errors which are corrected.

OMIG audits shall apply the state rules and regulations that are in effect at the time of the audit period and OMIG shall publish protocols applicable to audits or reviews on its website. Overpayments and extrapolations will be determined in a manner consistent with CMS policies. Extrapolation and sampling methodologies shall be detailed in writing to providers.

 

 

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Provisions in other budget bills introduced by the Governor:

 

TED ( Transportation, Economic Development and Environmental Conservation) Article VII Legislation 

Part HH, Enforcement of Federal Behavioral Health Parity by DFS 

This Part would further authorization to the Department of Financial Services to enforce federal behavioral parity laws and regulations. DFS would be authorized to impose upon commercial health insurers, a fine of $2000 per violation of such parity laws, after notice and a hearing.

 

    Senate: Includes the Governor’s proposal.

    Assembly: Intentionally omitted.

 

 

Public Protection and General Government bill (PPGG)

PPGG Part O,  Stop Addictive Feeds Exploitation for Kids Act (SAFE)

Would prohibit social media platforms from providing certain content to children under 18, would require parental consent for their children to receive social media notifications between midnight and 6 AM, and would allow parents to limit children’s access to social media to specific times during the day.

[NOTE: It is believed by many that excessive and unsupervised access to social media by children may contribute to the mental health crisis in the state and nation.]

 

   Senate: intentionally omitted.

   Assembly:  intentionally omitted.

 

 

PPGG Part P, Child Data Protection Act:

Would prohibit websites from collecting, using, selling or sharing personal data of persons under age 18.

 

   Senate: Intentionally omitted.

   Assembly: Includes child data privacy protections.