(b) No funds shall be transferred or loaned from the MCO article 44 business to any other business, function or contractor of the MCO, or to any subsidiary or member of the MCO's holding company system or to any member or stockholder without the prior approval of the commissioner and, except in the case of a PHSP, HIV SNP, PCPCP or MLTC, the superintendent. Repayment of any such approved loans, to the extent required, shall be made in accordance with schedules approved by the superintendent and commissioner. Any such transfers or loans shall require a certification by the MCO that such transfer or loan is in compliance with and does not violate any provision of any applicable law or regulation. However, distributions from an MCO to any member or stockholder shall not be subject to the provisions of this subdivision to the extent that such distribution was for the sole purpose of reimbursing at least one of the members or stockholders for income taxes paid resulting from income received by the MCO, or in the case where one of the members or stockholders is a not-for-profit corporation, the proportionate share of the distribution attributable to each member or stockholder; such a distribution shall be permissible without the prior approval of the commissioner as long as both prior to and subsequent to the distribution, the MCO has reserves in excess of minimum requirements as prescribed by this Part; and such distribution is consistent with a tax allocation agreement entered into between the MCO and its members or stockholders.

1. (1) No such transfer or loan shall be approved if the net worth of the MCO after the transfer or loan would fall below 12.5 percent of its annual net premium income, and all such transfers and loans must be accompanied by projections submitted by the MCO showing that its net worth shall continue to meet or exceed 12.5 percent of annual net premium income for two calendar years following the transfer or loan.
2. (2) Notwithstanding the provisions of paragraph (1) of this subdivision, no such proposed transfer or loan made by any MCO that received 75 percent or more of its net premium income from the New York State Medicaid, Family Health Plus, and Child Health Plus programs during the last calendar year shall be approved if the net worth of the MCO after such transfer or loan would fall below 15 percent of its annual net premium revenue, and all such transfers and loans must be accompanied by projections submitted by the MCO showing that its net worth shall continue to meet or exceed 15 percent of annual net premium revenue for two calendar years following the transfer or loan.
3. (3) In order to ensure the availability of quality health services for an enrolled population, the commissioner may waive the provisions of paragraphs (1) and (2) of this subdivision should the proposed transfer of funds or loan be used to purchase a controlling interest, or a substantial portion of the assets, of an MCO certified to operate under article 44 of the Public Health Law.

(d) Nothing herein shall prevent a corporation licensed under article 43 of the Insurance Law from exercising its rights and undertaking transactions authorized by such law, provided that no such transaction shall affect or involve the corporation's Public Health Law article 44 business or line of business or resources thereof, without compliance with the provisions of this section.

1. (1) Except for a PCPCP, a certified operating MCO, or an MCO that is initially commencing operations, shall maintain a reserve, to be designated as the contingent reserve.

   1. (i) The contingent reserve for an HMO, PHSP or HIV SNP shall be equal to and shall not exceed:

      1. (a) 5 percent of net premium income for the first calendar year subsequent to the effective date of this Subpart;
      2. (b) 6.5 percent of net premium income for the second calendar year subsequent;
      3. (c) 7.5 percent of net premium income for the third calendar year subsequent;
      4. (d) 8.5 percent of net premium income for the fourth calendar year subsequent;
      5. (e) 9.5 percent of net premium income for the fifth calendar year subsequent;
      6. (f) 10.5 percent of net premium income for the sixth calendar year subsequent;
      7. (g) 11.5 percent of net premium income for the seventh calendar year subsequent;
      8. (h) 12.5 percent of net premium income for calendar years thereafter.

   2. (ii) Notwithstanding the provisions of subparagraph (i) of this paragraph, the contingent reserve applicable to net premium income generated from the Medicaid managed care, Health and Recovery Plans (HARPs) and HIV SNP programs shall be: The provisions of this subparagraph shall not apply to HMOs and PHSPs beginning operations in 2016 or after.

      1. (a) 7.25 percent of net premium income for 2011;
      2. (b) 7.25 percent of net premium income for 2012;
      3. (c) 7.25 percent of net premium income for 2013;
      4. (d) 7.25 percent of net premium income for 2014;
      5. (e) 7.25 percent of net premium income for 2015;
      6. (f) 7.25 percent of net premium income for 2016;
      7. (g) 7.25 percent of net premium income for 2017;
      8. (h) 7.25 percent of net premium income for 2018;
      9. (i) 7.25 percent of net premium income for 2019;
      10. (j) 7.25 percent of net premium income for 2020;
      11. (k) 8.25 percent of net premium income for 2021;
      12. (l) 9.25 percent of net premium income for 2022;
      13. (m) 10.5 percent of net premium income for 2023;
      14. (n) 11.25 percent of net premium income for 2024;
      15. (o) 12.5 percent of net premium income for 2025;
      16. (p) 12.5 percent of net premium income for calendar years after 2025.
   3. (iii) Upon an HMO, PHSP or HIV SNP reaching its maximum contingent reserve of 12.5 percent of its net premium income for a calendar year, it must continue to maintain its contingent reserve at this level thereafter. Such contingent reserve requirement shall be deemed to have been met if the net worth of the HMO, PHSP or HIV SNP, based upon admitted assets, equals or exceeds the applicable contingent reserve requirement for such calendar year.
2. (2) Except for PCPCPs, any applicant for certification as an MCO must establish a contingent reserve in an amount equal to 5 percent of projected net premium income for its initial calendar year of operations prior to commencing operations. For each subsequent year of operations, except for an MLTCP, it must increase its contingent reserve according to the schedule set forth above.
3. (3) Except for PCPCPs, if such MCO reinsures part of its risk under any or all of its contracts by means of a reinsurance contract approved by the superintendent, with the advice of the commissioner, as an appropriate substitute for a portion (up to 50 percent) of the required contingent reserve increase, then the required increase to the contingent reserve at the end of any calendar year may be reduced up to the amount of the premium paid by such MCO for such reinsurance during such calendar year.
4. (4) Such contingent reserve may be additionally offset by up to 50 percent of the required level at the end of each calendar year by means of a reinsurance agreement approved by the superintendent with the advice of the commissioner.
5. (5) Except for PCPCPs, such contingent reserve may, after application therefor by the MCO and approval thereof by the superintendent and/or commissioner, as appropriate, be reduced below the amount required to be maintained by this subdivision, provided that no such reduction, except in the event of an epidemic or other catastrophe resulting in extraordinary hospital or medical utilization, shall, in the case of such MCO having a net premium income for the preceding calendar year of (i) less than $10 million, or (ii) $10 million or more, reduce the contingent reserve below an amount equal to 75 percent and 50 percent, respectively, of the amount required to be maintained by subparagraph (i) of this paragraph. Any reduction so authorized by the superintendent and/or commissioner, as appropriate, shall be restored within a period of not more than three years in accordance with a plan, submitted by the MCO and approved by the superintendent and/or commissioner, as appropriate, which shall provide that such restoration shall be in addition to, and not in lieu of, the increase in the contingent reserve herein required, which increase must be made in every year except the year in which a reduction in the contingent reserve is approved by the superintendent and/or commissioner, as appropriate.

6. (6) In the case of MLTCPs, the superintendent, in consultation with the commissioner, may exclude from the contingent reserve calculation premium income derived from chronically ill individuals who are covered by the title XIX program and are confined to a nursing facility.

   (f)

7. (1) Except for PCPCPs, each MCO shall establish a deposit in the form of an escrow account for the protection of enrollees (including enrollee health care service claim obligations), in the form of a trust account with a custodian, without preference or priority to any beneficiary entitled to share therein, that shall be either a member of the Federal Reserve System located in New York State or a New York State chartered bank or trust company. The superintendent, with the advice of the commissioner, shall approve the form of the deed of trust and all amendments thereto. The assets deposited in the escrow account shall be valued according to their current fair market value, and shall consist only of cash, certificates of deposit, and investments of the types specified in section 1404(a)(1) and (2) of the New York Insurance Law. The amount deposited in the escrow account shall be adjusted annually by the last day of March of each calendar year and shall be equal to the greater of the following:

   1. (i) five percent of the estimated expenditures for health care services for the calendar year conforming to the year of filing; or
   2. (ii) $100,000.
8. (2) As of the 30th day of April of each year, the custodian shall furnish a statement to the commissioner and superintendent, identifying the assets that are held in trust as of the 31st day of March of such year, including the estimated fair market value of such assets. To the extent that the deposit required as described above for any calendar year is less than the deposit held in the deed of trust, the State Insurance Department shall approve withdrawal of any excess funds in the escrow account.
9. (3) In the case of an MLTCP, such escrow account may, at the discretion of the superintendent in consultation with the commissioner, be reduced below the amount required to be maintained by this subdivision based on the financial condition of the MLTCP and the provision of less than comprehensive services as defined in this Subpart. In no event will a reduction of greater than 50 percent of the amount required by this subdivision be granted.
10. (4) A reduction granted to an MLTCP pursuant to paragraph (3) of this subdivision will remain in effect as long as the underlying requirements, agreements and safeguards submitted to the superintendent in support of such reduction remain in effect. Proposed changes to any of these items must be submitted to the superintendent by the MLTCP at least 30 days prior to their effective date for a new determination pursuant to paragraph (3) of this subdivision.

(e)

(g) Except in the case of an HMO operated by a corporation licensed under article 43 of the Insurance Law which also operates a Public Health Law, article 44 line of business, no less than one third of the members of the governing authority of an MCO shall be composed of residents of New York State.

1. (1) Within one year of the MCO becoming operational, no less than 20 percent of the members of the governing authority shall be enrollees of such MCO, except that:

   1. (i) in the case of a PHSP or MLTCP, enrollee or consumer representatives may be substituted for enrollees;
   2. (ii) in the case of a PCPCP, such requirements shall apply only if the PCPCP has a separate body, for example a local social services district, that functions as a governing authority;
   3. (iii) an HMO, PHSP, PCPCP or MLTCP may, as an alternative to or in addition to subparagraphs (i) and (ii) of this paragraph, establish an enrollee advisory council which is representative of the HMO's, PHSP's, PCPCP's or MLTCP's enrollment and which has direct input to the governing authority;
   4. (iv) in the case of an MCO that operates an HIV SNP as one of its lines of business or as its sole line of business, the governing authority must include at least one person with HIV infection to serve as a consumer representative.
2. (2) Employees of the MCO, providers of health services or persons having a business relationship with the MCO may not serve as enrollee or consumer representatives.

(i) The governing authority shall not delegate the following elements of management authority to another person:

1. (1) direct independent authority to hire or terminate the chief executive officer;
2. (2) adoption of budgets and independent control of the books and records;
3. (3) authority over the disposition of assets and the authority to incur on behalf of the MCO liabilities not normally associated with the day to day operation of the MCO;
4. (4) independent adoption and/or enforcement of policies affecting the operation of the MCO and the delivery of health care services;
5. (5) oversight by the MCO of any management functions delegated to a management contractor pursuant to the provisions of this section or section 98-1.18 of this Subpart; and
6. (6) pursuant to section 98-1.21(b)(1) of this Subpart, primary responsibility for the development and implementation of the MCO's fraud and abuse prevention plan.

(j) The elements of management authority described in paragraphs (1) through (8) of this subdivision may be delegated to another person only pursuant to a management contract approved by the commissioner. An MCO shall not enter into any agreement delegating management authority except pursuant to a management contract which complies with the requirements of subdivisions (h) through (s) of this section and section 98-1.18 of this Subpart. No management contract shall be approved if the governing authority of the MCO does not retain sufficient authority and control to discharge its responsibility as the governing authority of the MCO, including the authority to discharge the management contractor.

1. (1) maintenance of the books and records;
2. (2) disposition of assets and the incurring of liabilities normally associated with the day to day operations of the MCO;
3. (3) implementation of policies affecting the delivery of health care services;
4. (4) claims payment;
5. (5) implementation of the MCO's budgets and provision for annual audits;
6. (6) quality assurance and improvement, except that when a provider risk sharing arrangement is entered into between the MCO and a management contractor or an entity related to the management contractor, the MCO may delegate either utilization review activity or quality assurance and/or quality improvement functions, but not both, to that management contractor or to an entity related to that management contractor. Assisting in the implementation of the MCO's quality assurance activities and functions is not considered a delegation. If the contractor has decision making authority and responsibility for the implemented functions, it is considered a delegation of quality assurance. For the purposes of this subdivision, an entity related to the management contractor is defined as an entity which is under common ownership and/or control with or has control of or is controlled by the management contractor. An MCO shall not contract with a management contractor to conduct quality assurance and/or quality improvement functions on the MCO's behalf unless the management contractor utilizes the MCO's quality assurance and quality improvement standards or unless the MCO approves the management contractor's quality assurance and quality improvement standards. The MCO shall not approve of the management contractor's standards for quality assurance and quality improvement unless the standards are substantially equivalent to those of the MCO and to those of other management contractors which have contracted with the MCO to conduct quality assurance and improvement, and such standards have been approved by the commissioner;
7. (7) any utilization review activity, except that when a provider risk sharing arrangement is entered into between the MCO and a management contractor or an entity related to the management contractor, the MCO may delegate either utilization review activity or quality assurance and/or quality improvement functions, but not both, to that management contractor, or to an entity related to that management contractor as defined in paragraph (6) of this subdivision. An MCO shall not contract with a management contractor to conduct utilization review activity on its behalf unless the management contractor is utilizing the MCO's clinical review standards for utilization review or unless the MCO has approved of the management contractor's clinical review standards. The MCO shall not approve of the management contractor's clinical review standards unless they are substantially equivalent to those of the MCO and to those of other management contractors performing similar functions for the same or similar services. All utilization review processes must comply with article 49 of the Public Health Law and must be approved by the commissioner. Utilization review may only be delegated to a registered utilization review agent, as defined in article 49 of the Public Health Law; and
8. (8) pursuant to section 98-1.21(b)(1) of this Subpart, all or part of the functions of the special investigations unit, which include investigation of cases of suspected fraudulent and abusive activity and fraud and abuse prevention and reduction activities under the MCO's fraud and abuse prevention plan.

(k) A proposed management contract must be submitted to the department for its prior approval at least 90 days prior to the management contract's proposed effective date. Management contracts shall be effective only with the prior written consent of the commissioner, and shall include the following:

1. (1) a clear description of the proposed role of the MCO's governing authority and the elements of authority proposed to be delegated to the management contractor during the term of the proposed management contract. The description shall clearly reflect retention by the governing authority of the MCO of ongoing responsibility for statutory and regulatory compliance;
2. (2) a provision that clearly recognizes that the responsibilities of the governing authority of the MCO are in no way lessened by entering into a management contract, and that any powers not specifically delegated to the management contractor through the provisions of the contract remain with the governing authority of the MCO;
3. (3) a clear acknowledgment of the authority of the commissioner to terminate the contract pursuant to subdivision (o) of this section;
4. (4) a provision listing procedures and requirements which shall be established by the MCO for ongoing monitoring by the MCO of the implementation of the contract and the MCO's fiscal stability, level of services provided and quality of care rendered during the term of the contract, including requirements for periodic reporting by the manager;
5. (5) a provision that annual reports on the financial operations and any other operational data requested by the governing authority of the MCO, the commissioner or superintendent, will be provided by the management contractor;
6. (6) a provision stating that the management contract approved by the department shall be the sole agreement between the management contractor and the governing authority of the MCO for the purpose of management of the MCO and payment to the management contractor for management services, and that any amendments or revisions to the management contract shall be effective only with the prior written consent of the commissioner;
7. (7) specification of payment terms that are reasonable and do not jeopardize the financial security of the MCO;
8. (8) a provision whereby the parties agree that any changes to the contract required by the commissioner will be made by the parties immediately upon receipt of written notice from the commissioner; and
9. (9) a provision whereby the parties agree to terminate the management contract within 60 days, in accordance with subdivision (o) of this section, upon receipt of written notice from the commissioner.

(l) In addition to a proposed written contract complying with the provisions of subdivisions (h) through (s) of this section and section 98-1.18 of this Subpart, the governing authority of the MCO seeking to enter into a management contract shall submit to the department the following:

1. (1) documentation indicating that the proposed management contractor holds all necessary approvals to do business in New York State including, as appropriate, an application for authority to do business in New York State filed with the Secretary of State;
2. (2) proposed terms of the management contract, including but not limited to the term and purposes of the agreement, identification of the contractor's responsibilities, and descriptions of all staffing to be provided, major equipment, computer and information systems, required reports, performance criteria, a termination provision, projected costs and any management or other fee to be charged by the management contractor;
3. (3) evidence of the management contractor's financial stability;
4. (4) information necessary to determine the character and competence of the proposed management contractor, its controlling persons, officers and directors, owners, members or managers of a limited liability company and any medical director proposed by the management contractor for the general or medical management of the MCO and/or for utilization review activities, including evidence that all MCOs and health care facilities managed or operated by the management contractor, in or out of New York State, have provided a substantially consistent high level of care during the term of their management contract or operating certificate. The department may conduct a limited review of character and competence where the agreement delegates management activities involving only a single medical service such as dental, vision or chiropractic services, or delegates limited management responsibility such as utilization review. For the purposes of this paragraph, a limited review shall consist of a review of the proposed management contractor's past performance as a management contractor or in any other capacity performing any of the functions set forth in subdivision (j) of this section, as well as the character and competence of the officers and directors, members or managers of a limited liability company and partners of the contractor, and, if the proposed delegated management activity is either medical management or utilization review, the medical director of the proposed management contractor; and

5. (5) except for PCPCPs, evidence that it is financially feasible for the MCO to enter into the proposed management contract for the term of the contract, recognizing that the costs of the contract are subject to the approval of the commissioner and superintendent. To demonstrate evidence of financial feasibility, such MCO shall submit projected operating and capital budgets for the required periods. Such budgets shall be consistent with any previously submitted, certified financial statements and be subject to future audits. However, no review of financial feasibility shall be required where:

   1. (i) the agreement delegates management activities for limited services such as dental, vision, behavioral health and chiropractic services, and the management fee is equal to no more than 25 percent of the MCO's total administrative costs; or
   2. (ii) the agreement delegates a limited scope of management activities, such as utilization review, for some, most or all medical services and the management fee is equal to no more than 25 percent of the MCO's total administrative cost.

(m) The term of a management contract shall be limited to five years and may be renewed only when authorized by the commissioner, provided compliance with this section and the following provisions can be demonstrated:

1. (1) that the goals and objectives of the contract have been met within specified time frames;
2. (2) that the quality of care provided by the MCO during the term of the contract has been maintained or has improved; and

3. (3) that any reporting requirements contained in the management contract have been met.

   Any application for renewal shall be submitted at least 90 days prior to the expiration of the existing contract.

(q) Any MCO which commits or engages in any of the following acts shall be subject to action against its certificate of authority and/or civil penalties under the authority of sections 12 and 4404 of the Public Health Law and section 98-1.8 of this Subpart;

1. (1) the governing body of the MCO delegates one or more management functions without having effected such delegation pursuant to a management contract approved by the commissioner;
2. (2) the governing body of the MCO fails to retain ongoing responsibility for statutory and regulatory compliance;
3. (3) the governing body of the MCO allows the management contractor to assume responsibilities which cannot be delegated by the governing authority of the MCO;
4. (4) the governing body of the MCO enters into more than one agreement with the management contractor for the purpose of management of the MCO and/or payment to the management contractor for management services;
5. (5) the management contract is amended without the prior written approval of the commissioner;
6. (6) the management contractor is discharged without the prior approval of the commissioner;
7. (7) the MCO fails to comply with a direction from the commissioner to terminate the management contractor;
8. (8) the MCO or the management contractor subcontracts delegated functions without the approval of the commissioner; or
9. (9) the MCO fails to comply or maintain compliance with any other requirements of article 44 of the Public Health Law and this Subpart.

(t) An MCO may employ salaried solicitors and accept business from licensed insurance brokers and agents for business other than title XIX, and title XXI, and title 11 of article 5 of the Social Services Law and title I-A of article 25 of the Public Health Law, respectively, on a commission basis; provided, however, that:

1. (1) HMOs shall comply with section 4312 of the State Insurance Law with respect to accepting business from licensed insurance brokers and agents on a commission basis;
2. (2) no MCO, for its commercial line of business, shall pay a fee or commission to a broker or agent who has not agreed to provide information concerning its arrangements with participating employers to the MCO upon request;
3. (3) any broker or agent selling MCO coverage shall be licensed by the Insurance Department as an insurance broker or agent;
4. (4) no MCO shall accept more than 10 percent of an individual or group premium, which shall be refundable in the event enrollment is denied by such MCO, from a broker or agent unless upon such acceptance an individual, or group subject to any waiting period permitted in this Subpart concerning the commencement of coverage, is enrolled and entitled to receive comprehensive health services pursuant to a contract approved by the Superintendent of Insurance; and
5. (5) any fees or commission rates payable by an MCO to a broker or agent, which shall be at the same rate for all brokers and agents utilized by such MCO, shall be reviewed by the Superintendent of Insurance as part of the MCO's rate filing process and pursuant to any other applicable provisions of the Insurance Law and regulations.