exempt medicaid eligible population within the health maintenance organization's service area reside for the period beginning July first, nineteen hundred ninety-two, and with districts in which two-thirds of the non-exempt medicaid eligible population reside for the period beginning January first, nineteen hundred ninety-three, and would have been able to execute contracts in the remaining districts but for an agreement with the department of social services to delay implementation; or

(D) The health maintenance organization has enrolled a number of medical assistance eligibles sufficient to meet its total enrollment target for its otherwise non-exempt districts, even though the health maintenance organization does not yet have contracts in all such districts. In determining, whether the health maintenance organization has met the total enrollment target for such districts for the years nineteen hundred ninety-two-nineteen hundred ninety-three, the commissioner shall include the health maintenance organization's medical assistance fee for service enrollment, which is defined as the annual fee for service medical assistance visits made to a facility licensed pursuant to this article as a diagnostic and treatment center, which is operated either by the health maintenance organization or by a distinct not-for-profit corporation licensed under this article which provides or arranges for a majority of the health services to the health maintenance organization, divided by the annual average number of visits which commercial subscribers of the health maintenance organization make to such facilities. The commissioner of social services [may] in making such a determination also shall consider whether the health maintenance organization is proceeding with [a good faith] implementation of a plan for the capitation of a substantial percentage of its medical assistance fee for service enrollment, as defined herein. Such plan shall include adherence to a specified, viable implementation schedule approved by the commissioner of social services. Notwithstanding any provision of law to the contrary, demonstration of a good faith effort under this clause shall entitle the health maintenance organization only to a seventy-five percent reduction in the nine percent increase imposed by this section.

§ 4. Subparagraph (ii) of paragraph (c) of subdivision 2-a of section 2807-c of the public health law, as amended by a chapter of the laws of 1992, amending the social services law relating to medicaid and general hospital reimbursements, as proposed in legislative bill bill number A. 12324, is amended to read as follows:

(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] fiscal year ending on March thirty-first, nineteen hundred ninety-three. Any amounts collected in excess of thirty-one million dollars for the [period] fiscal year ending March thirty-first, nineteen hundred ninety-three shall be refunded to health maintenance organizations by the commissioner based on the 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.

ratio

§ 5. Subparagraph (ii) of paragraph (a) of subdivision 25 of section 2807-c of the public health law, as amended by chapter 641 of the laws of 1992, is amended to read as follows:

(ii) for the rate periods during the period January first, nineteen hundred ninety-two through December thirty-first, nineteen hundred ninety-three, residencies shall be weighted to provide higher weights for primary care and emergency medicine physicians. Primary care residents specialties shall include family medicine, general pediatrics, and primary care internal medicine. In determining whether a residency is in primary care, the commissioner shall consult with the New York state council on graduate medical education and the state hospital review and EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

planning council. Reimbursable indirect expenses of medical education of a general hospital for a rate period shall be weighted based on projected medical education statistics for such general hospital for such rate period, and subsequently reconciled through appropriate audit procedures to actual statistics by a prospective adjustment to rates of payment. The weighting factors shall be determined based on nineteen hundred ninety data and statistics and shall include residents identified in subparagraph (i) of paragraph (a) of this subdivision not previously included in such calculations such that the sum in total for all general hospitals of the results of the weighting factors multiplied by the indirect medical education expenses for each general hospital shall equal, approximately, the sum in total for all general hospitals of the indirect medical education expenses for each general hospital determined as if the provision of this section were applied without consideration of the weighting factors or residents in non-hospital ambulatory settings determined pursuant to this subdivision. Residency positions in any specialty shall be weighted to equal no less than ninetenths of what such position would have equaled if reimbursement were to have been calculated without regard to the weighting factors. The provisions of this subparagraph shall not apply to those four specialty eye and ear, special surgery, and orthopedic and joint disease hospitals, specified by the commissioner, whose primary mission is to engage in research, training, and clinical care in the above-named areas.

§ 6. Subdivision 8 of section 365-a of the social services law, as added by chapter 41 of the laws of 1992, is amended to read as follows: 8. [(a)] Any person twenty-one years of age or older eligible for benefits under this title pursuant to section three hundred sixty-six of this article only as a result of being eligible for or in receipt of home relief shall receive the services specified in subdivision two of this section, provided that:

[(i)] (a) such person shall receive the services listed in paragraphs (d), (e), (h), (j)` and (1) of subdivision two of this section, optometric services as described in paragraph (a) of subdivision two of this section, audiology as described in paragraph (n) of subdivision_two of this section, clinical psychologists, orthotics, sick room supplies and inpatient services in a nursing home as described in paragraph (b) of subdivision two of this section, but only if such person is enrolled in one of the following programs, or if there is no provider affiliated with any such program who is sufficiently accessible to the recipient as to reasonably provide services to the recipient, in accordance with departmental regulations:

[(A)] (i) a health maintenance organization or other entity which provides comprehensive health services;

[(B)] (ii) a managed care program or other primary provider program, as specified by the department; or

[(C)] (iii) a voluntary medical care coordinator program. For the purposes of this subdivision, a voluntary medical care coordinator program shall mean a program established in accordance with departmental regulations to enroll medical assistance recipients with primary physicians, diagnostic and treatment centers and hospital outpatient departments and primary pharmacies which shall provide or refer the recipient to medically necessary services pursuant to this section and shall further coordinate the utilization of those services to assure the appropriate and cost-effective delivery of medical assistance.

[(ii)] (b) in no case shall payment be made for more than thirty-two days of in-patient services, excepting in-patient services in a nursing home as such term is defined in section twenty-eight hundred one of the public health law or freestanding in-patient alcoholism services eligi ble for medicaid reimbursement pursuant to paragraph (n) of subdivision two of this section, in any twelve month consecutive period unless such services are part of a full capitation program, and provided, further, that in no event shall an in-patient facility providing in-patient services described in paragraph (b) of subdivision two of this section discharge such person solely as a result of his or her having received the maximum number of his or her in-patient service days for which payment is available pursuant to this title.

§ 7. Subparagraph (iii) of paragraph (b) of subdivision 6 of section 367-a of the social services law, as amended by a chapter of the laws of 1992, amending the social services law relating to medicaid and general hospital reimbursements, as proposed in legislative bill number A. 12324, is amended to read as follows:

(iii) individuals who are inpatients in a medical facility [or residents of community based residential facilities licensed by the office of mental health or the office mental retardation and developmental disabilities] who have been required to spend all of their income for medical care, except their personal needs allowance or residents of community based residential facilities licensed by the office of mental health or the office of mental retardation and developmental disabilities who have been required to spend all of their income, except their personal needs allowance;

§ 8. Subparagraph (v) of paragraph (d) of subdivision 6 of section 367-a of the social services law, as added by a chapter of the laws of 1992, amending the social services law relating to medicaid and general hospital reimbursements, as proposed in legislative bill number A. 12324, is amended to read as follows:

(v) drugs, excepting psychotropic drugs and drugs [used in the] with FDA approved indications for the treatment of tuberculosis as specified by the department;

§ 9. Subdivision 12 of section 367-a of the social services law, as amended by a chapter of the laws of 1992, amending the social services law relating to medicaid and general hospital reimbursements, proposed in legislative bill number A. 12324, is amended to read as

follows:

as

12. Notwithstanding any inconsistent provision of law or regulation to the contrary, the commissioner shall reduce payments for in-patient services for patients [in general hospitals licensed pursuant to article twenty-eight of the public health law] that exceed the limitations on covered days of such services pursuant to paragraph (b) of subdivision eight of section three hundred sixty-five-a of this title: (a) to exclude, for per diem unit of service based payments, payments for days of care provided to a patient that exceed such limitations; and (b) to exclude, for case based unit of service payments, a percentage of the case based payment amount based upon the ratio of the number of days of covered by the case based rate of payment actually provided to a patient that exceed such limitations to the total number of days of care covered by the case based rate of payment actually provided to such patient, expressed as a percentage. § 10. Subdivisions 1 and 9 of section 369-aa of the social services law, as added by a chapter of the laws of 1992, amending the social services law relating to medicaid drug utilization review, as proposed in legislative bill number A. 11951-A, are amended to read as follows:

care

the

1. "Drug utilization review or (DUR)" shall mean the program designed to measure and to assess on a retrospective and a prospective basis proper use of outpatient drugs in the medicaid program. Such program shall be in addition to the activities of the department with respect to the detection of fraud and abuse in the medical assistance program, the sanctioning of providers determined to have engaged in unacceptable practices under the medical assistance program, and the recovery of overpayments of medical assistance made to providers under the medical assistance program.

9. "Standards" shall mean the acceptable range of deviation from the criteria that reflects [local] appropriate medical practice and that is tested on the medicaid recipient database.

§ 11. Paragraph (a) of subdivision 2 of section 369-bb of the social services law, as added by a chapter of the laws of 1992, amending the social services law relating to medicaid drug utilization review, as proposed in legislative bill number A. 11951-A, is amended to read as follows:

(a) Five persons licensed and actively engaged in the practice of medicine in the state, at least one of whom shall have expertise in the area of mental health, who shall be selected from a list of nominees provided by the medical society of the state of New York and other medical associations.

§ 12. Paragraphs (a), (d) and (e) of subdivision 8 of section 369-bb of the social services law, as added by a chapter of the laws of 1992, amending the social services law relating to medicaid drug utilization review, as proposed in legislative bill number A. 11951-A, are amended to read as follows:

(a) The development and application of the predetermined criteria and standards to be used in retrospective and prospective DUR that ensure EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

that such criteria and standards are based on the compendia and that they are developed with professional input in a consensus fashion with provisions for timely revisions and assessments as necessary. Further, that the DUR standards shall reflect the [local] appropriate practices of physicians in order to monitor:

(i) Therapeutic appropriateness;

(ii) Overutilization or underutilization;

iii) Therapeutic duplication;

iv) Drug-disease contraindications;

v) Drug-drug interactions;

vi) Incorrect drug dosage or duration of drug treatment; and (vii) Clinical abuse/misuse.

(d) The development of a working agreement for the DUR board with related boards or agencies, including, but not limited to: the board of pharmacy, the board of medicine, the SURS staff, and staff of the department of health and the office of mental health, in order to clarify the areas of responsibility for each where such areas may overlap. establishment of a [grievance/appeals process for physicians or pharmacists under this chapter] process where physicians, or pharmacists will have the opportunity to submit responses to the DUR educational letters.

(e) `The

§ 13. Subdivision 9 of section 369-bb of the social services law, as added by a chapter of the laws of 1992, amending the social services law relating to medicaid drug utilization review, as proposed in legislative bill number A. 11951-A, is amended to read as follows:

9. The relationship of the DUR board to the department is as follows: (a) The department shall monitor the DUR board's compliance to federal and state statute and regulation.

(b) The DUR board shall serve at the discretion of the commissioner. (c) The department shall have authority on all fiscal matters relating to the DUR program.

(d) The department shall have authority on all administrative matters relating to the administration of the medical assistance program within the DUR program.

(e) The DUR board shall have responsibility for all medical matters relating to the DUR program.

[(e)] (f) The DUR board may utilize medical consultants and review committees as necessary, subject to department approval.

§ 14. Section 2 of chapter 641 of the laws of 1992, amending the public health law relating to the exclusion of certain hospitals from provisions therein, is amended to read as follows:

§ 2. This act shall take effect [immediately and shall be deemed to have been effect on January] September 1, 1992, provided that the amendment to section 2807-c of the public health law made by section one of this act shall not affect the expiration of such section and shall expire therewith.

§ 15. Section 5 of a chapter of the laws of 1992, amending the social services law relating to medicaid and general hospital reimbursements, as proposed in legislative bill number A. 12324, is amended to read as follows:

§ 5. This act shall take effect immediately provided, that the amendment to subparagraph (iii) of paragraph (b) of subdivision 6 of section 367-a of the social services law made by section seven of this act shall take effect November 1, 1992; provided, however, that if the commissioner certifies in writing by such date that implementation of the amendment on such date is not feasible, then it shall not be implemented and shall be of no force or effect until January 1, 1993, and provided further 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.

§ 16. This act shall take effect immediately provided that the amendments made by this act to sections 365-a and 367-a of the social ser

vices 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.

CHAPTER 844

AN ACT to amend the public authorities law, the state finance law and the economic development law, in relation to establishing the omnibus procurement act of 1992

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 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. Short title; statement of legislative findings and declaration. (a) This act shall be known and may be cited as the "omnibus procurement act of 1992. "

(b) The legislature hereby finds and declares that an increased share of the state's procurement contracts have been awarded to New York state businesses due in part to the promotional, informational, educational, and technical assistance of the department of economic development, in cooperation with other state agencies, public authorities, and public benefit corporations.

It is further found and declared that with the economic downturn in the economies of New York and the nation, the state must redouble its efforts to ensure that it spends as much of its procurement dollars within New York as practically and legally possible and responsible.

as fiscally

It is further found and declared that redoubling these efforts combined with assisting state businesses to participate in the enormous government procurement market of other states and foreign governments will assist in stimulating the economy of New York.

It is therefore found and declared that it is in the public interest for the state to expand opportunities for New York state businesses to participate in contracts let by state agencies, public authorities and public benefit corporations, as well as other states and foreign

governments.

§ 2. Subdivision 3 of section 2879 of the public authorities law is amended by adding three new paragraphs (i), (j) and (k) to read as follows:

(i) Policies to promote the participation by New York state business enterprises and New York state residents in procurement contracts, including, but not limited to:

(i) providing for the corporation to collect and to consult the specifications of New York state business enterprises in developing specifications for any procurement contract for the purchase of goods where possible, practicable, feasible and consistent with open bidding. The corporation shall, where feasible, make use of the stock item specification forms prepared by the commissioner of general services, and where necessary, consult with the commissioner of the office of general services, in developing such specifications and make such determinations; and

(ii) with the cooperation of the department of economic development and through cooperative efforts with contractors, providing for the notification of New York state business enterprises of opportunities to participate as subcontractors and suppliers on procurement contracts let by the corporation in an amount estimated to be equal to or greater than one million dollars by cooperating with New York state in efforts to obtain offset credits from foreign countries and promulgating procedures EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law