Assembly Bill A5296

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5296

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2009
                               ___________

Introduced  by M. of A. MORELLE -- read once and referred to the Commit-
  tee on Insurance

AN ACT to amend the insurance law and the public health law, in relation
  to prohibiting certain adverse reimbursement change to a contract with
  a physician; and in relation to  grievance  procedures  and  providing
  access to specialty care

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subsections (g) and (h) of section 3217-b of the  insurance
law,  subsection  (g)  as relettered by chapter 586 of the laws of 1998,
are relettered subsections (h) and (i) and a new subsection (g) is added
to read as follows:
  (G)(1) NO INSURER SHALL IMPLEMENT AN ADVERSE REIMBURSEMENT CHANGE TO A
CONTRACT WITH A PHYSICIAN THAT IS OTHERWISE PERMITTED BY  THE  CONTRACT,
UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE, THE INSURER GIVES THE
PHYSICIAN  WITH  WHOM  THE  INSURER  HAS  DIRECTLY CONTRACTED AND WHO IS
IMPACTED BY THE ADVERSE REIMBURSEMENT CHANGE, AT LEAST NINETY DAYS WRIT-
TEN NOTICE OF THE CHANGE. IF THE CONTRACTING PHYSICIAN  OBJECTS  TO  THE
CHANGE  THAT  IS THE SUBJECT OF THE NOTICE BY THE INSURER, THE PHYSICIAN
MAY, WITHIN THIRTY DAYS OF THE DATE OF THE NOTICE, GIVE  WRITTEN  NOTICE
TO  THE INSURER TO TERMINATE HIS OR HER CONTRACT WITH THE INSURER EFFEC-
TIVE UPON THE IMPLEMENTATION DATE OF THE ADVERSE  REIMBURSEMENT  CHANGE.
FOR  THE  PURPOSES  OF  THIS SUBSECTION, THE TERM "ADVERSE REIMBURSEMENT
CHANGE" SHALL MEAN A PROPOSED CHANGE THAT COULD REASONABLY  BE  EXPECTED
TO  HAVE  THE  EFFECT  OF  MATERIALLY REDUCING THE LEVEL OF PAYMENT TO A
PHYSICIAN. THE NOTICE PROVISIONS REQUIRED BY THIS SUBSECTION  SHALL  NOT
APPLY WHERE: (A) SUCH CHANGE IS OTHERWISE REQUIRED BY LAW, REGULATION OR
APPLICABLE  REGULATORY  AUTHORITY, OR IS REQUIRED AS A RESULT OF CHANGES
IN FEE SCHEDULES, REIMBURSEMENT METHODOLOGY OR PAYMENT  POLICIES  ESTAB-
LISHED  BY A GOVERNMENT AGENCY; OR (B) SUCH CHANGE IS EXPRESSLY PROVIDED
FOR UNDER THE TERMS OF THE CONTRACT BY THE INCLUSION OF OR REFERENCE  TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08737-01-9
              

A. 5296                             2

A  SPECIFIC  FEE  OR  FEE SCHEDULE, REIMBURSEMENT METHODOLOGY OR PAYMENT
POLICY INDEXING MECHANISM.
  (2)  NOTHING IN THIS SUBSECTION SHALL CREATE A PRIVATE RIGHT OF ACTION
ON BEHALF OF A PHYSICIAN AGAINST  AN  INSURER  FOR  VIOLATIONS  OF  THIS
SUBSECTION.
  S  2.  The  insurance law is amended by adding a new section 3217-d to
read as follows:
  S 3217-D. GRIEVANCE PROCEDURE AND ACCESS TO SPECIALTY CARE.    (A)  AN
INSURER  THAT  ISSUES  A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF
PROVIDERS AND IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT AS DEFINED
IN SUBSECTION (C) OF SECTION FOUR THOUSAND EIGHT  HUNDRED  ONE  OF  THIS
CHAPTER  SHALL  ESTABLISH  AND MAINTAIN A GRIEVANCE PROCEDURE CONSISTENT
WITH THE REQUIREMENTS OF SECTION FOUR THOUSAND EIGHT HUNDRED TWO OF THIS
CHAPTER.
  (B) AN INSURER THAT ISSUES A  COMPREHENSIVE  POLICY  THAT  UTILIZES  A
NETWORK OF PROVIDERS AND IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT
AS  DEFINED IN SUBSECTION (C) OF SECTION FOUR THOUSAND EIGHT HUNDRED ONE
OF THIS CHAPTER AND REQUIRES THAT SPECIALTY CARE BE PROVIDED PURSUANT TO
A REFERRAL FROM A PRIMARY CARE PROVIDER SHALL  PROVIDE  ACCESS  TO  SUCH
SPECIALTY  CARE CONSISTENT WITH THE REQUIREMENTS OF SUBSECTIONS (B), (C)
AND (D) OF SECTION FOUR THOUSAND EIGHT HUNDRED  FOUR  OF  THIS  CHAPTER;
PROVIDED HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THAT
AN  INSURER, OR A PRIMARY CARE PROVIDER ON BEHALF OF THE INSURER, MAKE A
REFERRAL TO A PROVIDER THAT IS NOT IN THE INSURER'S NETWORK.
  (C) AN INSURER THAT ISSUES A  COMPREHENSIVE  POLICY  THAT  UTILIZES  A
NETWORK OF PROVIDERS AND IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT
AS  DEFINED IN SUBSECTION (C) OF SECTION FOUR THOUSAND EIGHT HUNDRED ONE
OF THIS CHAPTER SHALL PROVIDE ACCESS  TO  TRANSITIONAL  CARE  CONSISTENT
WITH  THE  REQUIREMENTS OF SUBSECTIONS (E) AND (F) OF SECTION FOUR THOU-
SAND EIGHT HUNDRED FOUR OF THIS CHAPTER.
  S 3. Paragraph (B) of paragraph 2 of subsection (e) of section 3231 of
the insurance law, as added by chapter 501  of  the  laws  of  1992,  is
amended to read as follows:
  (B) Each calendar year, an insurer shall return, in the form of aggre-
gate  benefits  for  each  policy  form  filed pursuant to the alternate
procedure set forth in this paragraph at least seventy-five  percent  of
the  aggregate premiums collected for the policy form during that calen-
dar year. Insurers shall annually report, no later  than  May  first  of
each year, the loss ratio calculated pursuant to this paragraph for each
such  policy form for the previous calendar year. In each case where the
loss ratio for a policy form  fails  to  comply  with  the  seventy-five
percent  loss  ratio  requirement, the insurer shall issue a dividend or
credit against future premiums for all policy holders with  that  policy
form  in an amount sufficient to assure that the aggregate benefits paid
in the previous calendar year plus the amount of the dividends and cred-
its shall equal seventy-five percent of the aggregate premiums collected
for the policy form in the previous calendar year. The dividend or cred-
it shall be issued to each policy which was in  effect  as  of  December
thirty-first  of  the  applicable  year [and remains in effect as of the
date the dividend or credit is issued]. AN INSURER SHALL MAKE A  REASON-
ABLE  EFFORT TO IDENTIFY THE CURRENT ADDRESS OF THOSE POLICY HOLDERS WHO
ARE NO LONGER POLICY HOLDERS WHEN THE DIVIDEND OR CREDIT IS ISSUED.  All
dividends  and credits must be distributed by September thirtieth of the
year following the calendar year in which the  loss  ratio  requirements
were  not satisfied.  The annual report required by this paragraph shall
include an insurer's calculation of the dividends and credits,  as  well

A. 5296                             3

as  an  explanation of the insurer's plan to issue dividends or credits.
The instructions and format for calculating and  reporting  loss  ratios
and  issuing  dividends or credits shall be specified by the superinten-
dent  by  regulation.  Such regulations shall include provisions for the
distribution of a dividend or credit in the  event  of  cancellation  or
termination by a policy holder.
  S  4.  The  insurance law is amended by adding a new section 4306-c to
read as follows:
  S 4306-C. GRIEVANCE PROCEDURE AND ACCESS TO SPECIALTY  CARE.    (A)  A
CORPORATION,  INCLUDING  A  MUNICIPAL  COOPERATIVE  HEALTH BENEFITS PLAN
CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THIS CHAPTER, THAT ISSUES A
COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF PROVIDERS AND IS NOT A
MANAGED CARE HEALTH INSURANCE CONTRACT AS DEFINED IN SUBSECTION  (C)  OF
SECTION  FOUR THOUSAND EIGHT HUNDRED ONE OF THIS CHAPTER SHALL ESTABLISH
AND MAINTAIN A GRIEVANCE PROCEDURE CONSISTENT WITH THE  REQUIREMENTS  OF
SECTION FOUR THOUSAND EIGHT HUNDRED TWO OF THIS CHAPTER.
  (B)  A  CORPORATION, INCLUDING A MUNICIPAL COOPERATIVE HEALTH BENEFITS
PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN  OF  THIS  CHAPTER,  THAT
ISSUES A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF PROVIDERS AND
IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT AS DEFINED IN SUBSECTION
(C)  OF  SECTION  FOUR  THOUSAND  EIGHT  HUNDRED ONE OF THIS CHAPTER AND
REQUIRES THAT SPECIALTY CARE BE PROVIDED PURSUANT TO A REFERRAL  FROM  A
PRIMARY  CARE  PROVIDER  SHALL  PROVIDE  ACCESS  TO  SUCH SPECIALTY CARE
CONSISTENT WITH THE REQUIREMENTS OF SUBSECTIONS  (B),  (C)  AND  (D)  OF
SECTION  FOUR  THOUSAND  EIGHT  HUNDRED  FOUR  OF THIS CHAPTER; PROVIDED
HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THAT A CORPO-
RATION, OR A PRIMARY CARE PROVIDER ON BEHALF OF THE CORPORATION, MAKE  A
REFERRAL TO A PROVIDER THAT IS NOT IN THE CORPORATION'S NETWORK.
  (C)  A  CORPORATION, INCLUDING A MUNICIPAL COOPERATIVE HEALTH BENEFITS
PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN  OF  THIS  CHAPTER,  THAT
ISSUES A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF PROVIDERS AND
IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT AS DEFINED IN SUBSECTION
(C)  OF  SECTION  FOUR  THOUSAND EIGHT HUNDRED ONE OF THIS CHAPTER SHALL
PROVIDE ACCESS TO TRANSITIONAL CARE CONSISTENT WITH THE REQUIREMENTS  OF
SUBSECTIONS  (E)  AND (F) OF SECTION FOUR THOUSAND EIGHT HUNDRED FOUR OF
THIS CHAPTER.
  S 5. Paragraph 2 of subsection (h) of section 4308  of  the  insurance
law,  as added by chapter 504 of the laws of 1995, is amended to read as
follows:
  (2) In each case where the loss ratio for a  contract  form  fails  to
comply  with  the eighty-five percent minimum loss ratio requirement for
individual direct payment contracts, or the seventy-five percent minimum
loss ratio requirement  for  small  group  and  small  group  remittance
contracts,  as set forth in paragraph one of this subsection, the corpo-
ration shall issue a dividend or credit against future premiums for  all
contract  holders  with  that  contract  form in an amount sufficient to
assure that the aggregate benefits incurred  in  the  previous  calendar
year  plus  the  amount of the dividends and credits shall equal no less
than eighty-five percent for individual  direct  payment  contracts,  or
seventy-five   percent  for  small  group  and  small  group  remittance
contracts, of the aggregate premiums earned for the contract form in the
previous calendar year. The dividend or credit shall be issued  to  each
contract  that was in effect as of December thirty-first of the applica-
ble year [and remains in effect as of the date the dividend or credit is
issued].  A CORPORATION SHALL MAKE A REASONABLE EFFORT TO  IDENTIFY  THE
CURRENT  ADDRESS  OF  THOSE  CONTRACT  HOLDERS OR SUBSCRIBERS WHO ARE NO

A. 5296                             4

LONGER CONTRACT HOLDERS OR SUBSCRIBERS WHEN THE DIVIDEND  OR  CREDIT  IS
ISSUED. All dividends and credits must be distributed by September thir-
tieth  of  the  year following the calendar year in which the loss ratio
requirements were not satisfied. The annual report required by paragraph
one  of this subsection shall include a corporation's calculation of the
dividends and credits, as well as an explanation  of  the  corporation's
plan  to  issue  dividends  or  credits. The instructions and format for
calculating and reporting loss ratios and issuing dividends  or  credits
shall be specified by the superintendent by regulation. Such regulations
shall include provisions for the distribution of a dividend or credit in
the  event  of  cancellation  or  termination  by  a  contract holder or
subscriber.
  S 6. Subsections (g) and (h) of section 4325  of  the  insurance  law,
subsection  (g)  as  relettered  by chapter 586 of the laws of 1998, are
relettered subsections (h) and (i) and a new subsection (g) is added  to
read as follows:
  (G)(1) NO INSURER SHALL IMPLEMENT AN ADVERSE REIMBURSEMENT CHANGE TO A
CONTRACT  WITH  A PHYSICIAN THAT IS OTHERWISE PERMITTED BY THE CONTRACT,
UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE, THE INSURER GIVES THE
PHYSICIAN WITH WHOM THE INSURER  HAS  DIRECTLY  CONTRACTED  AND  WHO  IS
IMPACTED BY THE ADVERSE REIMBURSEMENT CHANGE, AT LEAST NINETY DAYS WRIT-
TEN  NOTICE  OF  THE CHANGE. IF THE CONTRACTING PHYSICIAN OBJECTS TO THE
CHANGE THAT IS THE SUBJECT OF THE NOTICE BY THE INSURER,  THE  PHYSICIAN
MAY,  WITHIN  THIRTY DAYS OF THE DATE OF THE NOTICE, GIVE WRITTEN NOTICE
TO THE INSURER TO TERMINATE HIS OR HER CONTRACT WITH THE INSURER  EFFEC-
TIVE  UPON  THE IMPLEMENTATION DATE OF THE ADVERSE REIMBURSEMENT CHANGE.
FOR THE PURPOSES OF THIS SUBSECTION,  THE  TERM  "ADVERSE  REIMBURSEMENT
CHANGE"  SHALL  MEAN A PROPOSED CHANGE THAT COULD REASONABLY BE EXPECTED
TO HAVE THE EFFECT OF MATERIALLY REDUCING THE  LEVEL  OF  PAYMENT  TO  A
PHYSICIAN.  THE  NOTICE PROVISIONS REQUIRED BY THIS SUBSECTION SHALL NOT
APPLY WHERE: (A) SUCH CHANGE IS OTHERWISE REQUIRED BY LAW, REGULATION OR
APPLICABLE REGULATORY AUTHORITY, OR IS REQUIRED AS A RESULT  OF  CHANGES
IN  FEE  SCHEDULES, REIMBURSEMENT METHODOLOGY OR PAYMENT POLICIES ESTAB-
LISHED BY A GOVERNMENT AGENCY; OR (B) SUCH CHANGE IS EXPRESSLY  PROVIDED
FOR  UNDER THE TERMS OF THE CONTRACT BY THE INCLUSION OF OR REFERENCE TO
A SPECIFIC FEE OR FEE SCHEDULE,  REIMBURSEMENT  METHODOLOGY  OR  PAYMENT
POLICY INDEXING MECHANISM.
  (2)  NOTHING IN THIS SUBSECTION SHALL CREATE A PRIVATE RIGHT OF ACTION
ON BEHALF OF A PHYSICIAN AGAINST  AN  INSURER  FOR  VIOLATIONS  OF  THIS
SUBSECTION.
  S  7.  Subsection (a) of section 4803 of the insurance law, as amended
by chapter 551 of the laws of 2006, is amended to read as follows:
  (a) (1) An insurer which offers a managed  care  product  shall,  upon
request,  make available and disclose to health care professionals writ-
ten application procedures and minimum qualification requirements  which
a  health  care  professional must meet in order to be considered by the
insurer for participation in the  in-network  benefits  portion  of  the
insurer's  network  for  the  managed  care  product.  The insurer shall
consult with appropriately qualified health care professionals in devel-
oping its qualification requirements for participation in the in-network
benefits portion of the insurer's network for the managed care  product.
An  insurer  shall  complete  review  of  the health care professional's
application to participate in the in-network portion  of  the  insurer's
network  and,  within  ninety  days  of  receiving a health care profes-
sional's completed application to participate in the insurer's  network,
will  notify the health care professional as to [(i)]: (A) whether he or

A. 5296                             5

she is credentialed; or [(ii)] (B) whether additional time is  necessary
to  make  a  determination  in  spite  of  THE insurer's best efforts or
because of a failure of a third party to  provide  necessary  documenta-
tion,  or  non-routine  or unusual circumstances require additional time
for review.   In such  instances  where  additional  time  is  necessary
because  of  a  lack  of  necessary documentation, an insurer shall make
every effort to obtain such information as soon as possible.
  (2) IF THE COMPLETE APPLICATION OF A  NEWLY-LICENSED  PHYSICIAN  OR  A
PHYSICIAN  THAT  HAS RECENTLY RELOCATED TO THIS STATE FROM ANOTHER STATE
AND HAS NOT PREVIOUSLY PRACTICED IN THIS STATE, WHO JOINS A GROUP  PRAC-
TICE  OF  PHYSICIANS EACH OF WHOM PARTICIPATES IN THE IN-NETWORK PORTION
OF AN INSURER'S NETWORK, IS NOT APPROVED OR DECLINED WITHIN NINETY  DAYS
PURSUANT  TO  PARAGRAPH  ONE OF THIS SUBSECTION, SUCH PHYSICIAN SHALL BE
DEEMED "PROVISIONALLY CREDENTIALED" AND MAY PARTICIPATE IN  THE  IN-NET-
WORK  PORTION  OF  AN  INSURER'S  NETWORK;  PROVIDED, HOWEVER, THAT SUCH
PHYSICIAN MAY NOT BE DESIGNATED AS AN INSURED'S PRIMARY  CARE  PHYSICIAN
UNTIL  SUCH  TIME  AS  THE  PHYSICIAN  HAS  BEEN FULLY CREDENTIALED. THE
NETWORK PARTICIPATION FOR THE PROVISIONALLY CREDENTIALED PHYSICIAN SHALL
BEGIN ON THE DAY FOLLOWING THE NINETIETH DAY OF RECEIPT OF THE COMPLETED
APPLICATION AND SHALL LAST UNTIL THE FINAL  CREDENTIALING  DETERMINATION
IS  MADE  BY  THE INSURER. A PHYSICIAN SHALL ONLY BE ELIGIBLE FOR PROVI-
SIONAL CREDENTIALING IF THE GROUP PRACTICE OF  PHYSICIANS  AGREES  THAT,
SHOULD  THE APPLICATION ULTIMATELY BE DENIED, THE PHYSICIAN OR THE GROUP
PRACTICE: (A) SHALL REFUND ANY PAYMENTS MADE BY THE INSURER FOR  IN-NET-
WORK  SERVICES PROVIDED BY THE PROVISIONALLY CREDENTIALED PHYSICIAN THAT
EXCEED ANY OUT-OF-NETWORK BENEFITS PAYABLE UNDER THE INSURED'S  CONTRACT
WITH  THE  INSURER;  AND  (B)  SHALL  NOT  PURSUE REIMBURSEMENT FROM THE
INSURED, EXCEPT TO COLLECT THE COPAYMENT OR COINSURANCE  THAT  OTHERWISE
WOULD  HAVE BEEN PAYABLE HAD THE INSURED RECEIVED SERVICES FROM A PHYSI-
CIAN PARTICIPATING IN THE IN-NETWORK PORTION OF  AN  INSURER'S  NETWORK.
INTEREST  AND  PENALTIES  PURSUANT TO SECTION THREE THOUSAND TWO HUNDRED
TWENTY-FOUR-A OF THIS CHAPTER SHALL NOT BE ASSESSED BASED ON THE  DENIAL
OF  A  CLAIM  SUBMITTED  DURING THE PERIOD WHEN THE PHYSICIAN WAS PROVI-
SIONALLY CREDENTIALED; PROVIDED,  HOWEVER,  THAT  NOTHING  HEREIN  SHALL
PREVENT  AN  INSURER  FROM PAYING A CLAIM FROM A PHYSICIAN WHO IS PROVI-
SIONALLY CREDENTIALED UPON SUBMISSION OF SUCH CLAIM.  AN  INSURER  SHALL
NOT DENY, AFTER APPEAL, A CLAIM FOR SERVICES PROVIDED BY A PROVISIONALLY
CREDENTIALED PHYSICIAN SOLELY ON THE GROUND THAT THE CLAIM WAS NOT TIME-
LY FILED.
  S  8.  Section 4906 of the insurance law, as amended by chapter 586 of
the laws of 1998, is amended to read as follows:
  S 4906. Waiver. (A) Any agreement  which  purports  to  waive,  limit,
disclaim,  or  in any way diminish the rights set forth in this article,
except as provided pursuant to section four thousand nine hundred ten of
this article shall be void as contrary to public policy.
  (B) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION,  IN  LIEU  OF  THE
EXTERNAL APPEAL PROCESS AS SET FORTH IN THIS ARTICLE, A HEALTH CARE PLAN
AND  A  FACILITY LICENSED PURSUANT TO ARTICLE TWENTY-EIGHT OF THE PUBLIC
HEALTH LAW MAY MUTUALLY AGREE TO AN ALTERNATIVE DISPUTE RESOLUTION MECH-
ANISM TO RESOLVE DISPUTES OTHERWISE SUBJECT TO THIS ARTICLE.
  S 9. The opening paragraph of subsection (b) of section  4910  of  the
insurance  law,  as added by chapter 586 of the laws of 1998, is amended
to read as follows:
  An insured, the insured's designee and, in connection with  CONCURRENT
AND  retrospective  adverse  determinations,  an  insured's  health care
provider, shall have the right to request an external appeal when:

A. 5296                             6

  S 10. Paragraphs 2 and 3 of subsection (b)  of  section  4914  of  the
insurance  law, as added by chapter 586 of the laws of 1998, are amended
to read as follows:
  (2)  The  external appeal agent shall make a determination with regard
to the appeal within thirty days  of  the  receipt  of  the  [insured's]
request  therefor,  submitted  in  accordance  with the superintendent's
instructions. The external appeal agent shall have  the  opportunity  to
request  additional  information  from the insured, the insured's health
care provider and the insured's health care plan within such  thirty-day
period,  in  which case the agent shall have up to five additional busi-
ness days if necessary to make such determination. The  external  appeal
agent  shall  notify the insured, WHERE APPROPRIATE THE INSURED'S HEALTH
CARE PROVIDER, and the health care  plan,  in  writing,  of  the  appeal
determination within two business days of the rendering of such determi-
nation.
  (3)  Notwithstanding  the provisions of paragraphs one and two of this
subsection, if the insured's attending physician states that a delay  in
providing  the  health  care  service  would pose an imminent or serious
threat to the health of  the  insured,  the  external  appeal  shall  be
completed  within  three  days  of the request therefor and the external
appeal agent shall make every reasonable attempt to  immediately  notify
the  insured, WHERE APPROPRIATE, THE INSURED'S HEALTH CARE PROVIDER, and
the health plan of its determination by telephone or facsimile, followed
immediately by written notification of such determination.
  S 11. Subsection (d) of section 4914 of the insurance law, as added by
chapter 586 of the laws of 1998, is amended to read as follows:
  (d) [Payment] (1) EXCEPT AS PROVIDED IN PARAGRAPHS TWO  AND  THREE  OF
THIS  SUBSECTION,  PAYMENT for an external appeal shall be the responsi-
bility of the health care plan. The health care plan shall make  payment
to  the  external appeal agent within forty-five days, from the date the
appeal determination is received by the health care plan, and the health
care plan shall be obligated to pay such amount together  with  interest
thereon calculated at a rate which is the greater of the rate set by the
commissioner  of  taxation  and  finance for corporate taxes pursuant to
paragraph one of subsection (e) of section one  thousand  ninety-six  of
the  tax  law  or twelve percent per annum, to be computed from the date
the bill was required to be paid, in the event that payment is not  made
within such forty-five days.
  (2)  IF  AN INSURED'S HEALTH CARE PROVIDER REQUESTS AN EXTERNAL APPEAL
OF A CONCURRENT ADVERSE DETERMINATION  AND  THE  EXTERNAL  APPEAL  AGENT
UPHOLDS  THE  HEALTH CARE PLAN'S DETERMINATION IN WHOLE, PAYMENT FOR THE
EXTERNAL APPEAL SHALL BE MADE BY THE HEALTH CARE PROVIDER IN THE  MANNER
AND  SUBJECT  TO  THE TIMEFRAMES AND REQUIREMENTS SET FORTH IN PARAGRAPH
ONE OF THIS SUBSECTION.
  (3) IF AN INSURED'S HEALTH CARE PROVIDER REQUESTS AN  EXTERNAL  APPEAL
OF  A  CONCURRENT  ADVERSE  DETERMINATION  AND THE EXTERNAL APPEAL AGENT
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN PART,  PAYMENT  FOR  THE
EXTERNAL  APPEAL  SHALL BE EVENLY SPLIT BETWEEN THE HEALTH CARE PLAN AND
THE INSURED'S HEALTH CARE PROVIDER WHO REQUESTED THE EXTERNAL APPEAL AND
SHALL BE MADE BY THE HEALTH CARE PLAN  AND  THE  INSURED'S  HEALTH  CARE
PROVIDER  IN  THE  MANNER AND SUBJECT TO THE TIMEFRAMES AND REQUIREMENTS
SET FORTH IN PARAGRAPH ONE OF THIS SUBSECTION  FOR  ONE  YEAR  FROM  THE
EFFECTIVE  DATE  OF THIS SUBSECTION.   AFTER ONE YEAR FROM THE EFFECTIVE
DATE OF THIS  SUBSECTION,  THE  SUPERINTENDENT  SHALL  EVALUATE  WHETHER
HEALTH  CARE  PLANS OR HEALTH CARE PROVIDERS ARE EXPERIENCING A SUBSTAN-
TIAL HARDSHIP AS A RESULT OF PAYMENT FOR THE EXTERNAL  APPEAL  WHEN  THE

A. 5296                             7

EXTERNAL  APPEAL  AGENT  UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN
PART. THE SUPERINTENDENT,  IN  CONSULTATION  WITH  THE  COMMISSIONER  OF
HEALTH,  MAY PROMULGATE A REGULATION TO SPECIFY PAYMENT RESPONSIBILITIES
OF  PROVIDERS  AND  HEALTH  CARE  PLANS  WHEN  THE EXTERNAL APPEAL AGENT
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN PART WHICH SHALL  SUPER-
SEDE THE REQUIREMENTS OF THIS PARAGRAPH.
  (4)  IF  AN INSURED'S HEALTH CARE PROVIDER WAS ACTING AS THE INSURED'S
DESIGNEE, PAYMENT FOR THE EXTERNAL APPEAL SHALL BE MADE  BY  THE  HEALTH
CARE  PLAN.   THE EXTERNAL APPEAL AND ANY DESIGNATION SHALL BE SUBMITTED
ON A STANDARD FORM DEVELOPED BY THE SUPERINTENDENT IN CONSULTATION  WITH
THE  COMMISSIONER  OF HEALTH PURSUANT TO SUBSECTION (E) OF THIS SECTION.
THE SUPERINTENDENT SHALL HAVE THE AUTHORITY UPON RECEIPT OF AN  EXTERNAL
APPEAL TO CONFIRM THE DESIGNATION OR REQUEST OTHER INFORMATION AS NECES-
SARY. THE SUPERINTENDENT SHALL MAKE AT LEAST TWO WRITTEN REQUESTS TO THE
INSURED  TO CONFIRM THE DESIGNATION. THE INSURED SHALL HAVE TWO WEEKS TO
RESPOND TO EACH SUCH REQUEST. IF THE INSURED FAILS  TO  RESPOND  TO  THE
SUPERINTENDENT  WITHIN THE SPECIFIED TIMEFRAME, THE SUPERINTENDENT SHALL
PEND THE EXTERNAL APPEAL AND MAKE TWO WRITTEN  REQUESTS  TO  THE  HEALTH
CARE  PROVIDER  TO FILE AN EXTERNAL APPEAL ON HIS OR HER OWN BEHALF. THE
HEALTH CARE PROVIDER SHALL HAVE  TWO  WEEKS  TO  RESPOND  TO  EACH  SUCH
REQUEST. IF THE HEALTH CARE PROVIDER DOES NOT RESPOND TO THE SUPERINTEN-
DENT'S REQUESTS WITHIN THE SPECIFIED TIMEFRAME, THE SUPERINTENDENT SHALL
REJECT THE APPEAL.
  S  12.  The  insurance  law is amended by adding a new section 4917 to
read as follows:
  S 4917. HOLD HARMLESS.  A HEALTH CARE PROVIDER REQUESTING AN  EXTERNAL
APPEAL  OF A CONCURRENT ADVERSE DETERMINATION, INCLUDING WHEN THE HEALTH
CARE PROVIDER REQUESTS AN EXTERNAL APPEAL  AS  THE  INSURED'S  DESIGNEE,
SHALL  NOT  PURSUE  REIMBURSEMENT  FROM  THE INSURED EXCEPT TO COLLECT A
COPAYMENT,  COINSURANCE  OR  DEDUCTIBLE  FOR  SERVICES  DETERMINED   NOT
MEDICALLY NECESSARY BY THE EXTERNAL APPEAL AGENT.
  S  13.  Subdivision  5-c of section 4406-c of the public health law is
relettered subdivision 5-d and a new subdivision 5-c is added to read as
follows:
  5-C. (A) NO HEALTH CARE PLAN SHALL IMPLEMENT AN ADVERSE  REIMBURSEMENT
CHANGE TO A CONTRACT WITH A PHYSICIAN THAT IS OTHERWISE PERMITTED BY THE
CONTRACT,  UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE, THE HEALTH
CARE PLAN GIVES THE PHYSICIAN WITH WHOM THE HEALTH CARE PLAN HAS DIRECT-
LY CONTRACTED AND WHO IS IMPACTED BY THE ADVERSE  REIMBURSEMENT  CHANGE,
AT  LEAST  NINETY  DAYS WRITTEN NOTICE OF THE CHANGE. IF THE CONTRACTING
PHYSICIAN OBJECTS TO THE CHANGE THAT IS THE SUBJECT OF THE NOTICE BY THE
HEALTH CARE PLAN, THE PHYSICIAN MAY, WITHIN THIRTY DAYS OF THE  DATE  OF
THE NOTICE, GIVE WRITTEN NOTICE TO THE HEALTH CARE PLAN TO TERMINATE HIS
OR HER CONTRACT WITH THE HEALTH CARE PLAN EFFECTIVE UPON THE IMPLEMENTA-
TION  DATE OF THE ADVERSE REIMBURSEMENT CHANGE. FOR THE PURPOSES OF THIS
SUBDIVISION, THE  TERM  "ADVERSE  REIMBURSEMENT  CHANGE"  SHALL  MEAN  A
PROPOSED  CHANGE THAT COULD REASONABLY BE EXPECTED TO HAVE THE EFFECT OF
MATERIALLY REDUCING THE LEVEL OF PAYMENT  TO  A  PHYSICIAN.  THE  NOTICE
PROVISIONS  REQUIRED BY THIS SUBDIVISION SHALL NOT APPLY WHERE: (I) SUCH
CHANGE IS OTHERWISE REQUIRED BY LAW, REGULATION OR APPLICABLE REGULATORY
AUTHORITY, OR IS REQUIRED AS A  RESULT  OF  CHANGES  IN  FEE  SCHEDULES,
REIMBURSEMENT  METHODOLOGY  OR PAYMENT POLICIES ESTABLISHED BY A GOVERN-
MENT AGENCY; OR (II) SUCH CHANGE IS EXPRESSLY  PROVIDED  FOR  UNDER  THE
TERMS OF THE CONTRACT BY THE INCLUSION OF OR REFERENCE TO A SPECIFIC FEE
OR  FEE  SCHEDULE,  REIMBURSEMENT METHODOLOGY OR PAYMENT POLICY INDEXING
MECHANISM.

A. 5296                             8

  (B) NOTHING IN THIS SUBDIVISION SHALL CREATE A PRIVATE RIGHT OF ACTION
ON BEHALF OF A PHYSICIAN AGAINST  AN  INSURER  FOR  VIOLATIONS  OF  THIS
SUBDIVISION.
  S  14.  Subdivision  1  of section 4406-d of the public health law, as
amended by chapter 551 of the laws  of  2006,  is  amended  to  read  as
follows:
  1.  (A)  A  health  care  plan shall, upon request, make available and
disclose to health care professionals written application procedures and
minimum qualification requirements which a health care professional must
meet in order to be considered by the health care plan. The  plan  shall
consult with appropriately qualified health care professionals in devel-
oping  its qualification requirements. A health care plan shall complete
review of the health care professional's application to  participate  in
the  in-network  portion  of  the  health care plan's network and shall,
within ninety days of receiving a health care  professional's  completed
application to participate in the health care plan's network, notify the
health  care  professional as to [(a)]: (I) whether he or she is creden-
tialed; or [(b)] (II) whether additional time is  necessary  to  make  a
determination in spite of the health care plan's best efforts or because
of  a  failure  of  a third party to provide necessary documentation, or
non-routine or unusual circumstances require additional time for review.
In such instances where additional time is necessary because of  a  lack
of  necessary  documentation,  a  health plan shall make every effort to
obtain such information as soon as possible.
  (B) IF THE COMPLETE APPLICATION OF A  NEWLY-LICENSED  PHYSICIAN  OR  A
PHYSICIAN  THAT  HAS RECENTLY RELOCATED TO THIS STATE FROM ANOTHER STATE
AND HAS NOT PREVIOUSLY PRACTICED IN THIS STATE, WHO JOINS A GROUP  PRAC-
TICE  OF  PHYSICIANS EACH OF WHOM PARTICIPATES IN THE IN-NETWORK PORTION
OF A HEALTH CARE PLAN'S NETWORK, IS  NOT  APPROVED  OR  DECLINED  WITHIN
NINETY DAYS PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, THE PHYSICIAN
SHALL  BE DEEMED "PROVISIONALLY CREDENTIALED" AND MAY PARTICIPATE IN THE
IN-NETWORK PORTION OF THE HEALTH CARE PLAN'S NETWORK; PROVIDED, HOWEVER,
THAT SUCH PHYSICIAN MAY NOT BE DESIGNATED AS AN ENROLLEE'S PRIMARY  CARE
PHYSICIAN  UNTIL SUCH TIME AS THE PHYSICIAN HAS BEEN FULLY CREDENTIALED.
THE NETWORK PARTICIPATION FOR THE PROVISIONALLY  CREDENTIALED  PHYSICIAN
SHALL  BEGIN  ON  THE  DAY FOLLOWING THE NINETIETH DAY OF RECEIPT OF THE
COMPLETED APPLICATION AND  SHALL  LAST  UNTIL  THE  FINAL  CREDENTIALING
DETERMINATION IS MADE BY THE HEALTH CARE PLAN. A PHYSICIAN SHALL ONLY BE
ELIGIBLE  FOR  PROVISIONAL CREDENTIALING IF THE GROUP PRACTICE OF PHYSI-
CIANS AGREES THAT, SHOULD THE  APPLICATION  ULTIMATELY  BE  DENIED,  THE
PHYSICIAN  OR  THE GROUP PRACTICE: (I) SHALL REFUND ANY PAYMENTS MADE BY
THE HEALTH CARE PLAN FOR IN-NETWORK  SERVICES  PROVIDED  BY  THE  PROVI-
SIONALLY  CREDENTIALED PHYSICIAN THAT EXCEED ANY OUT-OF-NETWORK BENEFITS
PAYABLE UNDER THE ENROLLEE'S CONTRACT WITH THE  HEALTH  CARE  PLAN;  AND
(II) SHALL NOT PURSUE REIMBURSEMENT FROM THE ENROLLEE, EXCEPT TO COLLECT
THE  COPAYMENT  THAT  OTHERWISE WOULD HAVE BEEN PAYABLE HAD THE ENROLLEE
RECEIVED SERVICES FROM  A  PHYSICIAN  PARTICIPATING  IN  THE  IN-NETWORK
PORTION OF A HEALTH CARE PLAN'S NETWORK. INTEREST AND PENALTIES PURSUANT
TO SECTION THREE THOUSAND TWO HUNDRED TWENTY-FOUR-A OF THE INSURANCE LAW
SHALL  NOT  BE  ASSESSED BASED ON THE DENIAL OF A CLAIM SUBMITTED DURING
THE PERIOD WHEN THE PHYSICIAN WAS PROVISIONALLY CREDENTIALED;  PROVIDED,
HOWEVER,  THAT  NOTHING  HEREIN  SHALL  PREVENT  A HEALTH CARE PLAN FROM
PAYING A CLAIM FROM A PHYSICIAN WHO IS PROVISIONALLY  CREDENTIALED  UPON
SUBMISSION  OF  SUCH  CLAIM.  A  HEALTH  CARE PLAN SHALL NOT DENY, AFTER
APPEAL, A CLAIM FOR SERVICES PROVIDED BY  A  PROVISIONALLY  CREDENTIALED
PHYSICIAN SOLELY ON THE GROUND THAT THE CLAIM WAS NOT TIMELY FILED.

A. 5296                             9

  S 15. Section 4906 of the public health law, as amended by chapter 586
of the laws of 1998, is amended to read as follows:
  S  4906.  Waiver.  1.  Any  agreement  which purports to waive, limit,
disclaim, or in any way diminish the rights set forth in  this  article,
except as provided pursuant to section four thousand nine hundred ten of
this article shall be void as contrary to public policy.
  2.  NOTWITHSTANDING  SUBDIVISION  ONE  OF THIS SECTION, IN LIEU OF THE
EXTERNAL APPEAL PROCESS AS SET FORTH IN THIS ARTICLE, A HEALTH CARE PLAN
AND A FACILITY LICENSED PURSUANT TO ARTICLE TWENTY-EIGHT OF THIS CHAPTER
MAY MUTUALLY AGREE TO AN ALTERNATIVE  DISPUTE  RESOLUTION  MECHANISM  TO
RESOLVE DISPUTES OTHERWISE SUBJECT TO THIS ARTICLE.
  S  16.  The  opening paragraph of subdivision 2 of section 4910 of the
public health law, as added by chapter 586  of  the  laws  of  1998,  is
amended to read as follows:
  An  enrollee,  the enrollee's designee and, in connection with CONCUR-
RENT AND retrospective adverse determinations, an enrollee's health care
provider, shall have the right to request an external appeal when:
  S 17. Paragraphs (b) and (c) of subdivision 2 of section 4914  of  the
public  health  law,  as  added  by chapter 586 of the laws of 1998, are
amended to read as follows:
  (b) The external appeal agent shall make a determination with  respect
to  the  appeal  within  thirty  days of the receipt of the [enrollee's]
request  therefor,  submitted  in  accordance  with  the  commissioner's
instructions.    The external appeal agent shall have the opportunity to
request additional information from the enrollee, the enrollee's  health
care provider and the enrollee's health care plan within such thirty-day
period,  in  which case the agent shall have up to five additional busi-
ness days if necessary to make such determination. The  external  appeal
agent  shall  notify  the  enrollee,  WHERE  APPROPRIATE, THE ENROLLEE'S
HEALTH CARE PROVIDER, and the health  care  plan,  in  writing,  of  the
appeal  determination  within two business days of the rendering of such
determination.
  (c) Notwithstanding the provisions of paragraphs (a) and (b)  of  this
subdivision,  if  the enrollee's attending physician states that a delay
in providing the health care service would pose an imminent  or  serious
threat  to  the  health  of  the  enrollee, the external appeal shall be
completed within three days of the request  therefor  and  the  external
appeal  agent  shall make every reasonable attempt to immediately notify
the enrollee, WHERE APPROPRIATE, THE ENROLLEE'S  HEALTH  CARE  PROVIDER,
and  the  health  plan  of  its determination by telephone or facsimile,
followed immediately by written notification of such determination.
  S 18. Subdivision 4 of section 4914 of the public health law, as added
by chapter 586 of the laws of 1998, is amended to read as follows:
  4. [Payment] (A) EXCEPT AS PROVIDED IN PARAGRAPHS (B) AND (C) OF  THIS
SUBDIVISION,  PAYMENT for an external appeal shall be the responsibility
of the health care plan. The health care plan shall make payment to  the
external  appeal  agent  within forty-five days from the date the appeal
determination is received by the health care plan, and the  health  care
plan shall be obligated to pay such amount together with interest there-
on  calculated  at  a  rate  which is the greater of the rate set by the
commissioner of taxation and finance for  corporate  taxes  pursuant  to
paragraph  one  of  subsection (e) of section one thousand ninety-six of
the tax law or twelve percent per annum, to be computed  from  the  date
the  bill was required to be paid, in the event that payment is not made
within such forty-five days.

A. 5296                            10

  (B) IF AN ENROLLEE'S HEALTH CARE PROVIDER REQUESTS AN EXTERNAL  APPEAL
OF  A  CONCURRENT  ADVERSE  DETERMINATION  AND THE EXTERNAL APPEAL AGENT
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN WHOLE, PAYMENT  FOR  THE
EXTERNAL  APPEAL SHALL BE MADE BY THE HEALTH CARE PROVIDER IN THE MANNER
AND  SUBJECT  TO  THE TIMEFRAMES AND REQUIREMENTS SET FORTH IN PARAGRAPH
(A) OF THIS SUBDIVISION.
  (C) IF AN ENROLLEE'S HEALTH CARE PROVIDER REQUESTS AN EXTERNAL  APPEAL
OF  A  CONCURRENT  ADVERSE  DETERMINATION  AND THE EXTERNAL APPEAL AGENT
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN PART,  PAYMENT  FOR  THE
EXTERNAL  APPEAL  SHALL BE EVENLY SPLIT BETWEEN THE HEALTH CARE PLAN AND
THE ENROLLEE'S HEALTH CARE PROVIDER WHO REQUESTED  THE  EXTERNAL  APPEAL
AND SHALL BE MADE BY THE HEALTH CARE PLAN AND THE ENROLLEE'S HEALTH CARE
PROVIDER  IN  THE  MANNER AND SUBJECT TO THE TIMEFRAMES AND REQUIREMENTS
SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION. AFTER ONE YEAR FROM  THE
EFFECTIVE  DATE  OF  THIS  SUBDIVISION,  THE SUPERINTENDENT OF INSURANCE
SHALL EVALUATE WHETHER HEALTH CARE PLANS OR HEALTH  CARE  PROVIDERS  ARE
EXPERIENCING  A  SUBSTANTIAL  HARDSHIP  AS  A  RESULT OF PAYMENT FOR THE
EXTERNAL APPEAL WHEN THE EXTERNAL APPEAL AGENT UPHOLDS THE  HEALTH  CARE
PLAN'S DETERMINATION IN PART. THE COMMISSIONER, IN CONSULTATION WITH THE
SUPERINTENDENT  OF  INSURANCE,  MAY  PROMULGATE  A REGULATION TO SPECIFY
PAYMENT RESPONSIBILITIES OF PROVIDERS AND HEALTH  CARE  PLANS  WHEN  THE
EXTERNAL  APPEAL  AGENT  UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN
PART WHICH SHALL SUPERSEDE THE REQUIREMENTS OF THIS PARAGRAPH.
  (D) IF AN ENROLLEE'S HEALTH CARE PROVIDER WAS ACTING AS THE ENROLLEE'S
DESIGNEE, PAYMENT FOR THE EXTERNAL APPEAL SHALL BE MADE  BY  THE  HEALTH
CARE  PLAN.   THE EXTERNAL APPEAL AND ANY DESIGNATION SHALL BE SUBMITTED
ON A STANDARD FORM DEVELOPED BY THE COMMISSIONER  IN  CONSULTATION  WITH
THE  SUPERINTENDENT  OF  INSURANCE  PURSUANT TO SUBDIVISION FIVE OF THIS
SECTION.  THE SUPERINTENDENT OF INSURANCE SHALL HAVE THE AUTHORITY  UPON
RECEIPT  OF  AN  EXTERNAL  APPEAL  TO CONFIRM THE DESIGNATION OR REQUEST
OTHER INFORMATION AS NECESSARY. THE SUPERINTENDENT  OF  INSURANCE  SHALL
MAKE AT LEAST TWO WRITTEN REQUESTS TO THE ENROLLEE TO CONFIRM THE DESIG-
NATION.  THE  ENROLLEE  SHALL  HAVE  TWO  WEEKS  TO RESPOND TO EACH SUCH
REQUEST. IF THE ENROLLEE FAILS  TO  RESPOND  TO  THE  SUPERINTENDENT  OF
INSURANCE  WITHIN THE SPECIFIED TIME FRAME, THE SUPERINTENDENT OF INSUR-
ANCE SHALL PEND THE EXTERNAL APPEAL AND MAKE TWO WRITTEN REQUESTS TO THE
HEALTH CARE PROVIDER TO FILE AN  EXTERNAL  APPEAL  ON  HIS  OR  HER  OWN
BEHALF. THE HEALTH CARE PROVIDER SHALL HAVE TWO WEEKS TO RESPOND TO EACH
SUCH REQUEST. IF THE HEALTH CARE PROVIDER DOES NOT RESPOND TO THE SUPER-
INTENDENT  OF  INSURANCE  REQUESTS  WITHIN  THE SPECIFIED TIMEFRAME, THE
SUPERINTENDENT OF INSURANCE SHALL REJECT THE APPEAL.
  S 19. The public health law is amended by adding a new section 4917 to
read as follows:
  S 4917. HOLD HARMLESS. A HEALTH CARE PROVIDER REQUESTING  AN  EXTERNAL
APPEAL  OF A CONCURRENT ADVERSE DETERMINATION, INCLUDING WHEN THE HEALTH
CARE PROVIDER REQUESTS AN EXTERNAL APPEAL AS  THE  ENROLLEE'S  DESIGNEE,
SHALL  NOT  PURSUE  REIMBURSEMENT  FROM THE ENROLLEE EXCEPT TO COLLECT A
COPAYMENT  FOR  SERVICES  DETERMINED  NOT  MEDICALLY  NECESSARY  BY  THE
EXTERNAL APPEAL AGENT.
  S  20.  This act shall take effect January 1, 2010; provided, however,
that:
  1. sections seven and fourteen of this act shall take  effect  October
1,  2009, and shall apply to applications submitted after that date, and
shall not apply to applications submitted prior to  such  date  if  such
application  is  resubmitted  in  substantially similar form on or after
October 1, 2009;

A. 5296                            11

  2. the amendments to subsection (a) of section 3217-d of the insurance
law made by section two of this act and subsection (a) of section 4306-c
of the insurance law made by section four of this act shall take  effect
January  1, 2010 or the date uniform standards for a grievance procedure
are  adopted  to  be  consistent with federal requirements, whichever is
later;
  3. provided, further, that the amendments to subsection (i) of section
3217-b of the insurance law made by section one of this  act  shall  not
affect the repeal of such subsection and shall be deemed repealed there-
with;
  4. provided, further, that the amendments to subsection (i) of section
4325  of  the  insurance  law  made by section six of this act shall not
affect the repeal of such subsection and shall be deemed repealed there-
with; and
  5. provided, further, that the amendments made to subdivision  5-d  of
section 4406-c of the public health law made by section thirteen of this
act  shall not affect the repeal of such subdivision and shall be deemed
repealed therewith.