PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Subpart 43-2 of Title 10 NYCRR.
Statutory authority:
Public Health Law, sections 2776(1)(e), 201(1)(h) and (p) and 206(3)
Subject:
HIV Uninsured Care Programs.
Purpose:
Receive and expend funds to provide medications, medical treatment and other supportive services to persons with HIV disease.
Text of final rule:
The title of Subpart 43-2 is amended to read:
SUBPART 43-2
[AIDS DRUG ASSISTANCE PROGRAM] HIV UNINSURED CARE PROGRAMS
(Statutory authority: Public Health Law, §§ 201(1)(p), 2776(1)(e))
Section 43-2.1 is amended to read:
Section 43-2.1 Scope. These regulations govern the application and eligibility determination process for the [AIDS Drug Assistance Program] HIV Uninsured Care Programs and establish the rights and responsibilities of applicants, participants, [medical] providers, and [the contractor] contractors in that process.
Section 43-2.2(e) and (f) are amended to read:
(e) Period of coverage. Coverage for assistance for each individual program component is effective [on the first date a drug is dispensed to an individual who is determined to be eligible for participation in the program] as specified in the individual's notification of eligibility. Coverage will terminate under the following circumstances:
(1) the applicant indicates in writing that he/she no longer needs or desires assistance;
(2) the department determines that a change in the participant's circumstances or residence has affected his/her eligibility;
(3) the participant has died or cannot be located; and
(4) funding for the [AIDS Drug Assistance Program] HIV Uninsured Care Programs is exhausted.
(f) Program means the HIV Uninsured Care Programs, including the following service components:
(1) AIDS Drug Assistance Program, which provides coverage of medications;
(2) ADAP Plus, which provides coverage for ambulatory care services;
(3) ADAP Plus Insurance Continuation, which pays for insurance premiums for eligible individuals who have cost effective insurance policies; and
(4) the HIV Home Care Program, which provides coverage for home care services.
Section 43-2.2(i) is amended to read as follows:
(i) [Contractor means any corporation which has entered into a contract with the department to assist in carrying out the provisions of the program] Available household income means the applicant's household income after deducting the amount paid by the applicant under the Federal Insurance Contributions Act for Social Security and Medicare and the cost of health care coverage paid by the applicant.
A new Section 43-2.2(j) is added to read:
(j) Provider means a medical provider, including a pharmacy, hospital, clinic, physician, laboratory or home health care agency.
Section 43-2.3 is amended to read:
Section 43-2.3 Confidentiality. All information which may identify an applicant which is received by the program will be confidential and can only be used when necessary for supervision, monitoring or administration of the program. Information received by any contractor, his agents, employees, or by any other person or agency concerning applicants or participants in the program is confidential and may not be disclosed without the written approval of the [AIDS Drug Assistance] HIV Uninsured Care Program Director, who shall approve disclosure only in conformance with Article 27-F of the Public Health Law and the federal standards with respect to the privacy and security of individually identifiable health information contained in Part 164 of Title 45 of the Code of Federal Regulations.
Section 43-2.4(a) is amended to read:
43-2.4 Use of the application form. (a) The State-approved application form must be completed:
(1) for each applicant upon initial application and recertification, if required; and
(2) documentation may be required when there is a change in status affecting eligibility.
Section 43-2.5(b)(1) is amended to read:
(b) Financial eligibility will be based upon the [total gross income] available household income [to the applicant's household].
(1) In order to be eligible, an applicant's available household income must be equal to or less than [the income guideline for the applicant's family size as specified below:] 435% of the amount under the annual United States Department of Health and Human Services poverty guidelines for the applicant's family size. Federal poverty guidelines are published annually by the Department of Health and Human Services in the Federal Register.
[Schedule--Statewide Standard of Need (Annual)
Number of persons in household
ONE
TWO
THREE+
44,000
59,200
74,400]
Section 43-2.5(c) is amended to read:
(c) Liquid resources shall be reviewed to determine their availability in determining eligibility for the program. In order to be eligible, an applicant's liquid resources must be less than $25,000.
[(1)] Liquid resources are cash or those assets which can be readily converted to cash such as bank accounts, lump sum payments, i.e., stocks, bonds and mutual fund shares. [Resources in an Individual Retirement Account (IRA) or other tax deferred compensation plan will be calculated at the rate of 50% for purposes of determining liquid assets.]
Section 43-2.5(d) is amended to read:
(d) Full and proper use shall be made of existing public and private medical and health services and facilities for obtaining therapeutic drugs, medical services, and related supplies and equipment for the treatment of HIV or AIDS.
Section 43-2.5(e) is amended to read:
(e) An applicant or recipient of assistance may be required as a condition of eligibility or continued eligibility to assign any rights he/she may have for [drug] coverage benefits under any health insurance policy or group health plan to the department.
Section 43-2.5(f) is amended to read as follows:
(f) [The department may employ a contractor to determine eligibility consistent with the requirements and responsibilities of Subpart 43-2 of this Part. Eligibility determinations are subject to department review and adjustment.]
In order to be eligible for ADAP Plus Insurance Continuation, an applicant must have:
(1) a health insurance policy that is determined to be cost effective by the department, based on the cost of premiums, limitations of coverage (i.e., deductible, caps, co-payments) and estimates of the monetary value of projected utilization and reimbursement under the insurance policy, and
(2) a premium cost that is more than 4% of the applicant’s available household income, if the applicant’s available household income is greater than 200% of the amount under the annual United States Department of Health and Human Services poverty guidelines for the applicant's family size, and
(3) an employer contribution of 50% or more of the total cost of the health insurance premium, if the applicant is employed full time and eligible for employer sponsored health insurance.
Section 43-2.9 is amended to read:
[Issuance of Program eligibility cards. (a) The department or authorized parties shall issue a program eligibility card to each person determined eligible for benefits.
(b) The card shall include the following information:
(1) participant's full name;
(2) participant's identification number;
(3) participant's effective date of coverage;
(4) category of drugs for which the participant is eligible; and
(5) the effective date of coverage for each category.]
RESERVED
Section 43-2.10 is amended to read:
43-2.10 Investigation. The department official shall review and verify information received on applications, as required. Documents, personal observation, personal and collateral interviews and contacts, reports, correspondence and conferences are means of verification of information supplied. When information is sought from collateral sources, other than public records or sources designated by the applicant on the application form [because the applicant or participant cannot provide verification], the department will inform the applicant/participant or his/her representative of what information is desired, why it is needed and how it will be used.
Section 43-2.14 is amended to read:
43-2.14 Enrollment of providers. The department will contract with or enter into provider agreements with [pharmacies and health care] providers, including providers of related laboratory and ancillary services, which demonstrate that they are qualified to provide [prescriptions drugs] program services.
Section 43-2.15(a) and (b) are amended to read:
Audit and [claim] review. (a) Providers shall be subject to audit and reviews for quality assurance and proper utilization by the commissioner, his agents or designees. With respect to such audits and reviews, the provider may be required:
(1) to reimburse the department for overpayments discovered by audits; and
(2) to pay restitution for any direct or indirect monetary damage to the program resulting from their improperly or inappropriately furnishing covered drugs, services, supplies or equipment.
(b) The commissioner, his agents or designees may conduct audits and [claim] reviews, and investigate potential fraud or abuse in a provider's conduct.
Section 43-2.15(d) is amended to read:
(d) When audit findings indicate that a provider has provided covered drugs, services, supplies or equipment in a manner which may be inconsistent with regulations governing the program, or with established standards for quality, or in an otherwise unauthorized manner, the commissioner may summarily suspend a provider's participation in the program and/or payment of all claims submitted and of all future claims may be delayed or suspended. When claims are delayed or suspended, a notice of the withholding payment or recoupment shall be sent to the provider by the department. This notice shall inform the provider that within 30 days he/she may request in writing an administrative review of the audit determination before a designee of the commissioner. The review must occur and a decision rendered within a reasonable time after a request for review. If the designee of the commissioner decides withholding or recoupment is warranted, or if no request for review is made by the provider within the 30 days provided, the department shall continue to recoup or withhold funds pursuant to the audit determination.
Section 43-2.16(e) is amended to read:
(e) All claims made under the program shall be subject to audit by the commissioner, his agents or designees, for a period of [three] six years from the date of their filing, or as required by state law, regulation or funding source. [t]This limitation shall not apply to situations in which fraud may be involved or where the provider or an agent thereof prevents or obstructs the performance of an audit pursuant to this Part.
Section 43-2.17 is amended to read:
43-2.17 Recoupment of overpayments. Overpayments determined to have been made pursuant to this section and section 43-2.16 of this Subpart shall be recovered by billing the provider for reimbursement, withholding the provider's current or withholding future payments on claims submitted or a percentage of payments otherwise payable on such claims, or such other remedies as may be available through a court of law.
A new section 43-2.18 is added to read:
Section 43-2.18 Claims submission. (a) Providers shall submit claims for drugs or services within ninety days of the date of service in the manner and form proscribed by the program in order to receive reimbursement.
(b) The department will not be obligated to pay claims submitted more than ninety days after the date of service. Claims submitted later than 90 days with written justification may be considered for payment if funds are available.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 43-2.15(d).
Text of rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
Assessment of Public Comment
Proposed rule changes per the paragraph below were posted in the State Register on February 3, 2010 for a 45-day public comment period.
43-2 AIDS Drug Assistance Program - Amend the regulation to address the interrelated components of the HIV Uninsured Care Programs (ADAP, ADAP Plus, Home Care and ADAP Plus Insurance Continuation), tie income eligibility requirements to federal Poverty Levels; and eliminate the inclusion of federally recognized retirement accounts as a viable resource for access to ongoing health care.
Comments were received from:
1. The Village Center for Care, Emma DiVito, President (submitted via email). The comment is supportive of the proposed changes and ends with the following sentence:
"These proposed changes to the ADAP program are well overdue and strongly supported. We urge the State to enact these regulatory changes as proposed."
2. The New York City HIV Planning Council, Charles Shorter, Community Co-Chair (submitted via email). The HIV Planning Council strongly recommended adoption and approval of the proposed regulations as soon as possible.
Two additional comments were received via email and sought clarifying technical information regarding the proposed changes. Those clarifications were made by the Program Director.
