New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter B - Public Assistance
Article 2 - Determination of Eligibility-Categorical
Part 360 - MEDICAL ASSISTANCE
Subpart 360-6 - Entitlement To Medical Assistance
Section 360-6.4 - Restriction of recipient access to services (recipient restriction program)

Universal Citation: 18 NY Comp Codes Rules and Regs § 360-6.4

Current through Register Vol. 46, No. 39, September 25, 2024

The social services district and the department may restrict a recipient's access to MA care and services if, upon review, it is found that the recipient has received duplicative, excessive, contraindicated or conflicting health care services, drugs, or supplies. In such cases, the social services district and the department may require that the recipient access specific types of medical care and services through a designated primary provider or providers. The State medical review team (SMRT) designated by the department performs recipient utilization reviews and identifies candidates for the recipient restriction program.

(a) Definitions. When used in this section:

(1) Good cause for a restricted recipient to request a change of primary provider means the existence of one or more of the following circumstances:

(i) the provider no longer wishes to be a primary provider for the recipient; or

(ii) the provider has closed his/her office or pharmacy, or moved to a location not convenient to the recipient; or

(iii) the provider has been suspended or disqualified from participation in the MA program; or

(iv) the provider is a pharmacist and/or a durable medical equipment (DME) dealer who cannot stock an item for which the recipient has a legitimate prescription or fiscal order; or

(v) the recipient has moved; or

(vi) other circumstances exist that make it necessary to change providers.

(2) Primary provider is a health care provider enrolled in the MA program who has agreed to oversee the health care needs of the restricted recipient. The primary provider will provide and/or direct all medically necessary care and services for which the recipient is eligible, within the provider's category of service or expertise. Primary provider includes physicians, clinics, inpatient hospitals, pharmacies, podiatrists, DME dealers, dentists, and dental clinics.

(3) Recipient is a person who is receiving or who has received MA benefits within the preceding six months, including both current and former recipients.

(4) Recipient information packet (RIP) is the utilization review summary prepared by the SMRT documenting the reason(s) for a recommended restriction. It will include a summary pharmacology assessment prepared by the pharmacist documenting misuse of pharmacy and DME services and summary medical assessments prepared by the registered professional nurse documenting misuse of health care services. A physician must sign the RIP, indicating review and approval of the restriction recommendation.

(5) Restriction is an administrative action limiting an MA recipient's access to specific types of medical care and services through a designated primary provider(s).

(6) SMRT means a team consisting of a registered nurse, a pharmacist and a physician, all of whom are licensed to practice by the State, who act for the department to:

(i) analyze recipient use of medical care and services under the MA program;

(ii) make recommendations concerning restrictions on recipient use; and

(iii) prepare recipient information packets.

(b) Recipient restriction. An MA recipient whose use of a category of MA care or service fulfills one or more of the conditions for restriction specified in subdivision (d) of this section may be recommended by the SMRT to the social services district for restriction to a primary provider in that category. A recipient recommended by the SMRT for restriction to a primary provider in a category of MA care or service other than physician or clinic also may be recommended for restriction to a primary physician or primary clinic if such additional restriction would more effectively control abuse or misuse of MA care, services, drugs, supplies, or appliances. A recipient whose use of hospital emergency room services fulfills the condition for restriction specified in paragraph (d)(5) of this section may be recommended by the SMRT to the social services district for restriction to a primary physician or primary clinic; such a restriction will not apply to emergency services furnished to the recipient. A primary provider is responsible for providing MA care or services to a restricted recipient as follows:

(1) A primary physician or primary clinic is responsible for providing all medical care to the restricted recipient, either directly or through referral of such recipient to another medical provider for appropriate services. A primary physician or primary clinic providing medical care for a restricted recipient who also is restricted to a primary inpatient hospital must have admitting privileges to or a professional affiliation with such primary inpatient hospital. A primary physician will receive a management fee for the coordination and management of a restricted recipient's care. Such management fee will be in the amount of $5 for each month the physician acts as primary physician for a restricted recipient.

(2) A primary inpatient hospital is responsible for providing all non-emergency inpatient services to the restricted recipient except for services provided pursuant to an authorized referral. A recipient who is restricted to a primary inpatient hospital also must be restricted to a primary physician or primary clinic.

(3) A primary pharmacy is responsible for providing all necessary drugs and pharmaceutical supplies to the restricted recipient. The primary physician must institute and maintain a current patient profile for the restricted recipient. Such profile must contain, at a minimum, the identity of the prescriber of the drugs and supplies; the strength, quantity and dosage regimen of any drugs; and the dates of service for all drugs and supplies dispensed. The profile must be made readily accessible to the department and its agents.

(4) A primary dentist or primary dental clinic is responsible for providing or directing the provision of all dental care for the restricted recipient.

(5) A primary podiatrist is responsible for providing or directing the provision of all podiatric care for the restricted recipient.

(6) A primary DME dealer is responsible for providing all necessary medical supplies and appliances to the restricted recipient and for repairing and adjusting such appliances.

(7) A primary physician, primary clinic, primary dentist or primary dental clinic is responsible for ordering the following services for the restricted recipient:

(i) transportation services; if the recipient is restricted to a primary physician or primary clinic and a primary dentist or primary dental clinic, the primary physician or primary clinic will be the only allowed orderer of transportation services;

(ii) laboratory services;

(iii) DME services; if the recipient also is restricted to a primary DME dealer, that provider will be the only allowed dispenser of DME services; and

(iv) pharmacy services; if the recipient also is restricted to a primary pharmacy, that provider will be the only allowed dispenser of pharmacy services.

(8) A primary physician or primary clinic is responsible for ordering inpatient hospital services for a restricted recipient who also is restricted to a primary inpatient hospital.

(c) Responsibilities of the SMRT. The professional judgment of the SMRT is applied to each case review. Use of professional judgment includes, but is not limited to:

(1) identifying potential hazards to the health of the recipient;

(2) identifying instances in which the misuse of services appears to be caused by the provider. In such instances, the SMRT will refer the provider to the appropriate agency for quality of care review and/or administrative or criminal action. The SMRT will not recommend that the recipient be restricted;

(3) identifying instances where the recipient may have met one of the conditions of restriction, but it appears to have been an isolated occurrence, or there appears to have been a legitimate reason for the use cited. In these instances, the SMRT will not recommend that the recipient be restricted; and

(4) recommending the type of restriction that will control the misuse most effectively.

(d) Conditions for restriction. Restrictions will be recommended to the social services district if a recipient displays a pattern of receiving one or more of the following:

(1) Excessive drugs, supplies or appliances. The recipient has received more of a drug, medical supply or appliance in a specified time period than is necessary, according to acceptable medical practice.

(2) Duplicative drugs, supplies or appliances. The recipient has received two or more similarly acting drugs in an overlapping time frame or has received duplicative supplies or appliances. The drugs, if taken together, may result in harmful drug interaction(s) or adverse reaction(s). Duplicative supplies and appliances, while not harmful, have no medical indication and are therefore unwarranted.

(3) Duplicative health care services. The recipient has received health care services from two or more providers for the same or similar conditions in an overlapping time frame. Health care services include, but are not limited to, physician, clinic, pharmacy, dental, podiatry and DME services.

(4) Contraindicated care or conflicting care. The recipient has received drugs, supplies or appliances and/or health care services which may be inadvisable in the presence of certain medical conditions or which conflict with care being provided or ordered by another provider.

(5) Unnecessary hospital emergency room services. The recipient has received services in a hospital emergency room for a condition which does not require emergency care or treatment.

(6) Excessive inpatient hospital services. The recipient has received multiple inpatient hospital discharges for the same or similar conditions which are more than necessary, according to acceptable medical practice, including but not limited to multiple inpatient hospital discharges against medical advice. For purposes of this paragraph, discharge against medical advice means discontinuance by a recipient of inpatient hospital services contrary to the advice of the attending physician.

(7) Abusive practices by recipients.

(i) The following practices engaged in by an MA recipient are abusive practices which warrant restriction of such recipient to an appropriate type(s) of restriction:

(a) a recipient uses or permits an MA identification card to be used to obtain services for an unauthorized person;

(b) a recipient presents a forged or altered prescription or fiscal order to an enrolled MA provider to obtain supplies, drugs or services under the MA program;

(d) a recipient sells or trades, or attempts to sell or trade, drugs or supplies acquired with an MA identification card.

(ii) When an MA recipient engages in an abusive practice identified in subparagraph (i) of this paragraph, a restriction may be imposed on the recipient for all eligible categories of services or only for those categories of services deemed appropriate by the SMRT.

(iii) The imposition of a restriction under this paragraph does not limit the taking by a social services official, district attorney or other prosecuting official of any other action authorized under law with respect to an act which constitutes a violation of the Social Services Law or Penal Law.

(e) Recipient's rights.

(1) Selection of primary provider. The social services district, in consultation with the department, must either designate a primary provider for a restricted recipient or afford the recipient a limited choice of primary providers for the type of services that are to be restricted. If the recipient fails to choose a primary provider when asked to do so, the social services district must designate a single provider in the restriction category for the recipient. A recipient may request a change of primary provider every three months, or at an earlier time for good cause.

(2) Recipient notification. A notice of intent to restrict must be sent to the recipient. The notice must conform with the requirements of Part 358 of this Title. The notice must include the following information:

(i) the date the restriction will begin;

(ii) the effect and scope of the restriction;

(iii) the reason for the restriction;

(iv) the recipient's right to a fair hearing;

(v) instructions for requesting a fair hearing including the right to receive aid continuing if the request is made before the effective date of the intended action. Part 358 of this Title contains the provisions on instructions for requesting a fair hearing;

(vi) the right of a social services district to designate a primary provider for recipient;

(vii) the right of the recipient to select a primary provider within two weeks of the date of the notice of intent to restrict, if the social services district affords the recipient a limited choice of primary providers;

(viii) the right of the recipient to request a change of primary provider every three months, or at an earlier time for good cause;

(ix) the right to a conference with a social services district person to discuss the reason for and effect of the intended restriction;

(x) the right of the recipient to explain and present documentation, either at a conference or by submission, showing the medical necessity of any services cited as misused in the RIP;

(xi) the name and telephone number of the person to contact to arrange a conference;

(xii) the fact that a conference does not suspend the effective date listed on the notice of intent to restrict;

(xiii) the fact that the conference does not take the place of or abridge the recipient's right to a fair hearing;

(xiv) the right of the recipient to examine his/her case record; and

(xv) the right of the recipient to examine records maintained by the social services district which can identify MA services paid for on behalf of the recipient. This information is generally referred to as "claim detail" or "recipient profile" information.

(f) Social services district responsibilities.

(1) Timeliness. The social services district must begin to process a restriction recommendation and contact the recipient within 30 days of receipt of the SMRT's recommendation to restrict.

(2) Reversal, change, or non-implementation of restriction by the social services district. The social services district may direct not to follow a restriction recommendation after a conference or upon receipt of additional information only in the following situations:

(i) Administrative reasons.

(a) the recipient's case is closed for more than three months from receipt of recommendation;

(b) the recipient is institutionalized;

(c) the social services district cannot locate a primary provider of one type to accept responsibility for the recipient and has to substitute another type of provider for example, physician for clinic provider; or

(d) the recipient participates in another case management or managed care program authorized by the department which the social services district believes will benefit the recipient more.

(ii) Medical reasons. The recipient can demonstrate a medical necessity for the services received. If, after a conference with the recipient or receipt of additional information, the social services district decides not to follow the SMRT's recommendation for medical reasons, the steps below must be followed:

(a) the recipient must present the RIP summary to an appropriate provider(s) listed in the summary. The provider(s) must submit a statement acknowledging full awareness of all the services, drugs, and supplies listed in the RIP. The provider(s) must explain why the services, drugs and supplies are medically necessary;

(b) the social services district must contact such provider(s) who must submit a statement to verify that he/she saw the RIP summary and that the information on the statement is accurate;

(c) the social services district medical director or a consulting physician having no involvement in the case must sign the case decision not to follow the SMRT's recommendation for medical reasons; and

(d) documentation and a summary must be forwarded to the department within 30 days of the date on which the decision not to follow the recommended restriction is made.

(g) Provider cooperation. The social services district must obtain an agreement from the primary provider that he/she will act as a primary provider. A primary provider must be given written confirmation of the recipient's restriction. Such confirmation must include the following:

(1) the effective date of the restriction;

(2) restriction limitations; and

(3) provisions for handling referrals (not applicable for pharmacy or other ordered service restrictions).

(h) Length of restriction.

(1) An initial restriction period will be for 24 consecutive months. After the initial period, the department will determine if the restriction should be continued. A second restriction period will be for three years. Any additional restriction periods will be for six years. If a restriction is to be continued or reinstated, the social services district must notify the recipient by sending a new letter of intent. The required content of the notice of intent is set forth in paragraph (2) of subdivision (e) of this section.

(2) Initial and additional restriction periods must be computed without regard to eligibility for, or receipt of, MA benefits. All periods of ineligibility or voluntary discontinuance of receipt of benefits must be counted in determining the length of restriction. Recipients who do not remain eligible for benefits or who do not continue to receive them, as well as those who are not receiving benefits at the time of the imposition of the restriction, will be treated similarly to those who remain eligible and continue to receive benefits. (For example, a recipient who becomes ineligible for benefits prior to the effective date of the restriction period and, upon subsequent reapplication for or redetermination of eligibility, regains eligibility within the restriction period will be eligible for benefits only in accordance with the restriction previously imposed.)

(i) Rereview for compliance with restriction. The department will monitor the recipient's compliance with a restriction and determine whether an additional restriction period is appropriate. The department will use evidence of MA identification card alterations, services received inappropriately from non-primary providers and other improper actions as the basis for an additional administrative restriction for other than medical reasons. A decision not to continue a restriction will in no way preclude any subsequent decisions to restrict for medical reasons. A recipient restricted for an additional period for non-compliance will have the same rights and is entitled to all appropriate notices informing him/her of the proposed action. These rights and notices are specified in Part 358 of this Title and subdivision (e) of this section.

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