services district shall be determined by calculating the ratio of the health maintenance organization's subscribers in the social services district, excluding subscribers who are eligible for medical assistance pursuant to the social services law, subscribers who are beneficiaries of title XVIII of the federal social security act (medicare), and participants in regional pilot projects established pursuant to chapter seven hundred three of the laws of nineteen hundred eighty-eight, to the number of all health maintenance organization subscribers residing in the social services district, excluding subscribers who are eligible for medical assistance pursuant to the social services law, subscribers who are beneficiaries of title XVIII of the federal social security act (medicare) and participants in regional pilot projects established pursuant to chapter seven hundred three of the laws of nineteen hundred eighty-eight, and applying that ratio to the medicaid managed care enrollment objective. The medicaid managed care enrollment objective for each social services district shall be the greater of: the number of medical assistance eligibles residing in the social services district who are not exempt from participating in managed care programs determined by the commissioner of social services to be the enrollment goal under approved medicaid managed care plans as of July first in the year preceding the rate year as required by [paragraph] subdivision seven of section three hundred sixty-four-j of the social services law; or five percent of the medical assistance eligibles who are not exempt from participating in managed care programs who reside in social services districts in which the first full year of an approved medicaid managed care plan has not been completed; or the actual number of medical assistance eligibles residing in the social services district who are not exempt from participating in managed care programs who are in fact enrolled in managed care programs excluding enrollment with managed care providers which are not health maintenance organizations or entities authorized to operate pursuant to section four thousand four hundred three-a of the public health law as of July first of the year preceding the rate year (except as of May first, nineteen hundred ninety-two for the rate period commencing July first, nineteen hundred ninety-two). The data used to determine the subscriber ratio shall be based on the most recent subscriber statistics available. For purposes of this paragraph, managed care program enrollees in a health maintenance organization shall be deemed to include persons eligible for medical assistance pursuant to the social services law enrolled by the health maintenance organization through an affiliation contract, approved by the commissioner in consultation with the commissioner of social services, with a prepaid health services plan.

into a

(c) (i) Each health maintenance organization shall pay statewide health maintenance organization pool created by the commissioner the factor established pursuant to paragraph (a) of this subdivision, as adjusted in accordance with paragraph (b) of this subdivision, for each patient discharged in the previous calendar month commencing with patients discharged on or after July first, nineteen hundred ninety-two. Funds accumulated in the pool, including income from invested funds, shall be deposited by the commissioner and credited to the general fund.

(ii) Payments by health maintenance organizations to the pool shall be made on a time schedule established by the council, subject to the approval of the commissioner, by regulation; provided, however, that estimated payments shall be due on or before the fifteenth day following the end of each month unless payments of actual amounts due for such calendar months have been made within such fifteen day time period and provided further that no further payments will be required at such time as the commissioner, in consultation with the director of the division of the budget, determines that a total of thirty-one million dollars has been or will be collected for the period ending on March thirty-first, nineteen hundred ninety-three. Any amounts collected in excess of thirty-one million dollars for the period ending March thirty-first, nineteen hundred ninety-three shall be refunded to health maintenance organizations by the commissioner based on the ratio which health maintenance organizations' payments for such period bears to the total of the payments. Interest and penalties on arrearages shall be determined in accordance with subdivision twenty of this section in the same manner as interest and penalties on arrearages on payments to bad debt and charity care regional pools.

(iii) The commissioner is authorized to contract with a pool administrator designated in accordance with paragraph (c) of subdivision sixteen of this section, or if not available such other administrators as the commissioner shall designate, to receive and distribute health maintenance organization pool funds. In the event contracts are effectuated, the commissioner shall conduct or cause to be conducted annual audits of the receipt and distribution of the pool funds. The reasonable costs and expenses of an administrator as approved by the commissioner, not to exceed for personnel services on an annual basis two hundred thousand dollars, shall be paid from the pooled funds.

§ 5. This act shall take effect immediately provided, that the amendments made by this act to section 367-a of the social services law and to section 2807-c of the public health law which are otherwise due to expire shall not affect the expiration of such provisions as otherwise provided by law and such amendments shall expire and be deemed repealed therewith. Any health maintenance organization may within 30 days of the effective date of this act file an appeal for a waiver, exemption or reduction based on the provisions of this act as they may affect the amount to be paid by the health maintenance organization for the 1992 rate period, and such an appeal shall not be prejudiced by any previous determination of an appeal prior to the effective date of this act. No payment shall be due pending a determination on such appeal by the commissioner of social services.

CHAPTER 835

AN ACT to amend the public health law, in relation to the definition of eligible institution for purposes of certain food programs

Became a law August 7, 1992, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

law

Section 1. Subdivision 1 of section 2586 of the public health law, as added by a chapter of the laws of 1992, amending the public health relating to the federal child care and adult food program as proposed in legislative bill numbers A. 12162 and S. 7116-B, is amended to read as follows:

1. "Eligible institution" means any child or adult day care institution defined in federal law, rule or regulations eligible to receive cash assistance under the federal child care and adult food program. A child day care program shall be licensed by the department of social services or licensed or otherwise approved by a state or local government agency or shall operate under the auspices of a sponsoring organization licensed by the department of social services. An adult day care program shall be licensed and approved by the department or other state agency or shall operate under the auspices of a sponsoring organization licensed or approved by the department or other state agency.

§ 2. This act shall take effect on the same date as a chapter of the laws of 1992, amending the public health law relating to the federal child care and adult food program as proposed in legislative bill numbers A. 12162 and S. 7116-B, takes effect.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

AN ACT to amend the tion to establishing a

assets

CHAPTER 836

state finance law and the highway law, in relasystem for the preservation of state capital

Became a law August 7, 1992, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Legislative findings and declaration. The legislature hereby finds that the preservation of the state's capital assets is important to the economic future of the state. Over the past decade, substantial improvements have been made in the state's infrastructure and capital assets as a result of various capital projects and initiatives, including the expenditure of $4.25 billion in bond funds on state roads and bridges. A planned, comprehensive maintenance program is an essential element in assuring that this investment is adequately protected. Without such a plan, the benefits of this accelerated renewal process will be squandered. In addition, maintenance performed in a timely fashion will minimize the long-term cost of keeping the state's capital assets in proper condition.

The legislature, therefore, declares that a system should be established that provides for the forecasting of needed maintenance and its consideration in future budgets. A systematic procedure for maintaining our infrastructure and capital assets is required if the state is to maintain its economic health and attract new industry and jobs. This legislature further declares that the state should develop maintenance systems which establish maintenance goals relative to the condition of the state's capital assets and which forecast the levels of funding needed to achieve these goals. The purpose of this legislation is not to mandate strict adherence to rigid timetables. Instead, the purpose is to establish appropriate maintenance schedules and to provide public disclosure of maintenance activities. Implementation of a comprehensive scheduled maintenance system will greatly assist the stewardship of these major assets of the state.

§ 2. Section 2 of the state finance law is amended by adding two new subdivisions 6-b and 19 to read as follows:

6-b. "Capital assets". Fixed assets and infrastructure assets, including but not limited to roads, bridges, facilities, mass transportation facilities, and water, sewer and drainage systems. Capital assets shall also include capital asset groups, which are of a similar nature or perform a similar function and cannot be readily identified as individual capital assets, such as roads or canals.

19. "Maintenance". Planned activities undertaken to reduce or arrest the rate of deterioration of capital assets, or to maintain such capital assets in a state of good repair, including but not limited to preventive maintenance, normal periodic repairs, the replacement of parts, and other activities intended to help achieve the optimum useful life of capital assets. These activities may correct minor defects as a secondary benefit, but they shall not include alterations that either: (i) change the use of the asset; or (ii) materially extend the useful life of the asset.

§ 3. Section 14-b of the state finance law, as added by chapter 837 of the laws of 1983, is amended to read as follows:

§ 14-b. Capital projects and maintenance statements. The head of each state agency as defined pursuant to subdivision six of section twentytwo of this chapter shall furnish the governor, at the time and in the form he requires but in no event later than December thirty-first of each year, a statement for which plans prepared to meet other existing statutory requirements may be accepted as a partial or complete substi tute as determined by the director of the budget, copies of which shall forthwith be furnished to the chairman of the senate finance committee and the chairman of the assembly ways and means committee, setting forth:

which

a. A detailed schedule by fund, of all capital projects recommended to be undertaken or continued in any of the next five fiscal years, shall provide the following information for each capital project:

(1) a description of the project in less than thirty words,

2) the estimated total cost of the project and, if appropriate, the useful life of the project, (3) the total of all disbursements for the project made prior to the

then current fiscal year,

(4) the total amount of disbursements for the project recommended to be made during the current fiscal year and during each of the next ensuing five fiscal years, provided however that (i) the information required by this [subparagraph] paragraph may be provided for groupings of projects in those cases where the director of the budget determines it cannot be provided on a project by project basis,

(5) the estimated date of project completion, and

8

(6) the amount of the total project cost for which the state or state agency will be contractually obligated as of the close of the then current fiscal year;

b. A statement of the financing methods proposed for financing the capital project inclusive of pay-as-you-go financing, general fund revenues, special revenues such as user charges and federal grants, existing debt authorization and new debt authorization, and an explanation of the relative advantages of the methods proposed over the alternative;

c. For the purposes of this subdivision, capital projects of less than fifty thousand dollars may be grouped into appropriate categories; and d. A five-year scheduled maintenance plan for the agency's capital assets prepared in accordance with section twenty-six of this chapter.

§ 4. The state finance law is amended by adding a new section 26 to read as follows:

§ 26. Maintaining capital assets. 1. Every contract made by or on behalf of the state or any agency or official thereof for new capital projects or programs which cost more than two million dollars, and which involve plumbing, electrical, heating and ventilating or other mechanical or electrical systems, shall require that a comprehensive manual be supplied by the contractor explaining the design concept and covering the proper operation and maintenance of the entire system. Such manual shall be designed, using explanatory diagrams as needed, to cover both day-to-day operations and emergencies so as to insure proper care and maximum useful life of the project. This contract provision may in the discretion of the contracting state agency or official, be waived whenever the necessary operation and maintenance information is available from other sources, is not necessary due to the nature of the asset, is already available for a similar project, or is provided free by a supplier and covers the maintenance needs of the entire system.

2. The head of each state agency, in cooperation with any related entity responsible for construction oversight or financing of agency projects, shall develop an annual five-year scheduled maintenance plan, by asset or asset group, for the capital assets under the jurisdiction of the agency. Such scheduled maintenance plan, where applicable, shall be designed to meet or exceed engineering or architectural standards for such assets. Such scheduled maintenance plan shall include:

(a) a description of the age and current condition of such capital assets, by asset or asset group;

(b) the establishment of goals for the condition of such capital assets, by asset or asset group, for each of the next five fiscal years; and

(c) a description of the maintenance activities and projected levels of funding necessary for the next five fiscal years to achieve the goals for the condition of such capital assets, by asset or asset group.

Such scheduled maintenance plan may be developed in coordination with and as part of a capital plan prepared pursuant to other provisions of law.

3. The head of each state agency shall cause to be performed once every five years an independent evaluation of the agency's scheduled maintenance plan. Such evaluation shall be conducted by individuals expert in the field of maintenance and maintenance planning, and shall be submitted to the governor and to the chairs of the senate finance committee and the assembly ways and means committee. Such evaluation shall include, but not be limited to:

(a) an assessment of the adequacy of the scheduled maintenance of the capital assets under the jurisdiction of the agency;

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

(b) recommendations for any improvements or technological advances in the way in which the agency should maintain the capital assets under its jurisdiction; and

(c) an assessment as to whether the level or allocation of funding for scheduled maintenance is sufficient.

or

4. No scheduled maintenance plan or evaluation of such plan required by this section shall be admissible in any action or proceeding in which the state or any of its departments, agencies or authorities, or any municipal corporation or other political subdivision, or any officer employee thereof, is a party, to prove the existence of a particular defect or dangerous condition in any capital asset or portion thereof; nor shall the state or any of its departments, agencies or authorities, or any municipal corporation or any other political subdivision, or any officer or employee thereof, be held liable for damages as a result of a failure to comply with any scheduled maintenance plan required by this section or to take any action as a result of an evaluation of such plan. § 5. The highway law is amended by adding a new section 10-d to read as follows:

§ 10-d. Statewide preventive maintenance plan for highways and bridges. 1. Definitions. For the purposes of this section, unless the context or subject matter otherwise requires:

(a) "Preventive maintenance" shall mean planned activities undertaken by the commissioner to reduce or arrest the rate of deterioration of state highways and bridges, or to maintain such highways and bridges in a state of good repair. These activities may correct minor defects as a secondary benefit.

(b) "Pavement management system" shall mean a system to assist in determining the optimum strategy to preserve state pavements in a safe and serviceable condition at the lowest feasible total capital and maintenance cost over the useful life of such pavement. Such system shall conform with or exceed federal requirements and shall include an annual survey of state highway pavement conditions.

(c) "Bridge management system" shall mean a system to assist in determining the optimum strategy to preserve state bridges in a safe and serviceable condition at the lowest feasible total capital and maintenance cost over the useful life of such bridges. Such system shall conform with or exceed federal requirements and shall include an inspection of state bridges in accordance with section two hundred thirty-two of this chapter.

2. Statewide preventive maintenance plan. Every year the commissioner shall develop a five-year_plan_for the preventive maintenance of state highways and bridges. The plan shall be submitted to the governor and the chairs of the senate finance committee and the assembly ways and means committee at the time the department submits its annual budget request, but no later than December thirty-first of each year. The plan shall:

(a) describe the current condition of state highways, by setting forth the number of lane miles in each highway condition level in each department of transportation residency and region based on an annual pavement condition survey conducted pursuant to the department's pavement management system;

(b) describe the current condition of state bridges, by setting forth the number of bridges in each bridge condition level in each department of transportation region based on an inspection of each bridge conducted pursuant to the department's bridge management system and in accordance with section two hundred thirty-two of this chapter;

(c) establish goals for the condition of the state's highways and bridges for each of the next five fiscal years which can be achieved through an integrated program of capital investment and preventive maintenance, set forth for each highway and bridge condition level in each department of transportation region;

(d) describe the preventive maintenance activities and levels of funding projected to be necessary to achieve the goals for the condition of the state's highways and bridges for each of the next five fiscal years, set forth for each highway and bridge condition level in each department of transportation region. Such description shall be developed utilizing the department's pavement management and bridge management systems;

(e) demonstrate the cost effectiveness of these preventive maintenance activities and levels of funding through an analysis of the cost of alternative preventive maintenance techniques over the life cycle of state highways and bridges consistent with the highway law life cycle requirements;