1. (1) The proposed ACO shall be a business corporation, not-for-profit corporation, limited liability company or partnership formed under the laws of New York State.
2. (2) A foreign corporation, limited liability company or partnership shall not be a proper applicant for a certificate of authority.
3. (3) If an ACO is formed among multiple independent ACO participants, it must be formed as a legal entity separate and apart from any of the ACO participants.
4. (4) No person shall file a certificate of incorporation or articles of organization, or amendment thereto, containing powers related to the operation of an ACO, or an independent practice association acting as an ACO, with the Secretary of State, without first having submitted the proposed certificate, articles or amendment to the commissioner for his or her review and approval.

5. (b) Upon obtaining a certificate of authority, the ACO shall be authorized and required to establish, own, operate and manage an ACO of clinically integrated independent health care providers that work together through a shared governance structure to:

   1. (1) provide, manage and coordinate health care including primary care, for a defined population focusing on patient centeredness, patient engagement and promoting evidence-based medicine;
   2. (2) be accountable for quality, cost, and delivery of health care to ACO patients;
   3. (3) negotiate, receive and distribute any shared savings or losses; and
   4. (4) establish, report and ensure provider compliance with health care criteria including quality performance standards.

6. (c) The ACO shall, and shall require its participants, to:

   1. (1) provide notification to their patients at the point of care that the ACO participants are participating in an ACO pursuant to a certificate of authority issued by the department;
   2. (2) post signs in their facilities to notify patients that they are participating in an ACO pursuant to a certificate of authority issued by the department;
   3. (3) make available to patients upon request standardized written notices approved by the department regarding participation in an ACO;
   4. (4) prohibit the provision of gifts or other remuneration to patients as inducements for receiving items or services from or remaining in an ACO or with ACO participants;

   5. (5) marketing materials promoting the ACO must:

      1. (i) use template language developed by the department, if available;
      2. (ii) not be used in a discriminatory manner or for discriminatory purposes; and
      3. (iii) comply with paragraph (4) of this subdivision regarding inducements.

7. (d) The powers and purposes of the ACO shall include the following:

   1. (1) notwithstanding any other provision to the contrary, nothing contained herein shall, except to the extent the corporation or company has already received certification or licensure, authorize the corporation or company to:

      1. (i) establish, operate, construct, lease or maintain a hospital or to provide hospital services or health-related services or to operate a certified home health agency, a hospice, or a managed care organization, or to provide a comprehensive health services plan as defined and covered by articles 28, 36, 40, and 44 of the Public Health Law, respectively, including to solicit, collect, or otherwise raise or obtain any funds, contributions or grants from any source for the establishment or operation of any hospital;
      2. (ii) establish, operate, construct, lease or maintain an adult care facility as provided by article 7 of the Social Services Law, including to solicit, collect or otherwise raise or obtain funds, contributions or grants from any source for the establishment or operation of any such facility; and
      3. (iii) engage in the business of insurance unless authorized by a valid license in force and effect issued pursuant to or exempt under this Part or the Insurance Law.
8. (e) Expand the purposes and powers beyond the corporation’s or company’s current certification or licensure without seeking the appropriate regulatory approvals.
9. (f) If the ACO is formed as a partnership, the partnership agreement must contain the purposes and powers required in subdivision (d) of this section.

10. (g) Notwithstanding the provisions of sections 98-1.2(w) and 98-1.5(b)(6)(vii) of this Title, an independent practice association may be an ACO participant or may be certified as an ACO pursuant to article 29-E of the Public Health Law and this Part.

    1. (1) An independent practice association certified as an ACO under this Part may, subject to any limitations contained in its certificate of authority, also contract with third party health care payers.
    2. (2) The functions, activities and services undertaken by the independent practice association acting as an ACO shall be clearly distinguished from its functions, activities and services as an independent practice association through the maintenance of separate records, reports and accounts for the ACO.
11. (h) A health home certified as an ACO under this Part, subject to any limitation contained in its certificate of authority, may contract with third party health care payers.
12. (i) A Medicare-only ACO that applied for a certificate of authority pursuant to article 29-E of the Public Health Law prior to adoption of this Part, within 90 days of adoption, shall amend its certificate of incorporation, articles of organization or partnership agreement to comply with the requirements of this section.

(a)