Provides enhanced consumer and provider protections
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| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jun 24, 2009 |
referred to rules |
Provides enhanced consumer and provider protections limitations on denial of claims for pre-authorized health care services; relates to grievance procedures; relates to managed care health insurance contracts; relates to determinations involving urgent care by utilization review agents.
BILL NUMBER: S52201
TITLE OF BILL :
An act to amend the insurance law and the public health law, in
relation to providing enhanced consumer and provider protections; in
relation to referrals to specialists and grievance procedures; in
relation to credits or dividends; in relation to provider contracts
and provider credentialing; in relation to overpayment recovery; in
relation to external appeals; in relation to prompt payment of claims;
in relation to participation status of health care providers; in
relation to utilization review timeframes; and to amend chapter 451 of
the laws of 2007 amending the public health law, the social services
law and the insurance law, relating to providing enhanced consumer and
provider protections, in relation to the effectiveness thereof
PURPOSE :
This bill enhances consumer and provider protections by instituting a
series of managed care reforms, including: (1) requiring that a
provider be given notice of an adverse reimbursement change to a
provider contract and an opportunity to cancel the contract; (2)
requiring insurers who offer comprehensive policies to offer the same
grievance procedures and provide the same access to care that is
required for health maintenance organizations (HMOs); (3) requiring
insurers and HMOs to pay electronic claims promptly and limiting their
ability to respond to claims by sending a coordination of benefits
questionnaire; (4) extending. overpayment recovery protections to all
health care providers and permitting them to challenge such recoveries; (5) requiring insurers and HMOs who fail to meet a loss-ratio requirement to make efforts to locate and pay dividends or credits to former policy holders; (6) prohibiting insurers and HMOs from treating a participating provider as a non-participating provider; (7) permitting newly licensed providers and providers moving to New York to be provisionally Credentialed until the final credentialing determination is made by the insurer or HMO; (8) shortening utilization review timeframes for determinations involving post-hospital home health care services; (9) allowing providers to appeal concurrent adverse determinations through the external appeal process; and (10) establishing a new external appeal standard for rare disease treatments. The bill also enhances efficiencies by authorizing the Superintendent of Insurance (Superintendent) to require that mandated submissions be filed electronically. SUMMARY OF PROVISIONS : Section 1 of the bill adds a new Insurance Law § 316 to provide that the Superintendent may promulgate regulations to require that any submissions made by an insurer or other person or entity to the Insurance Department be submitted by electronic means. An affected person or entity may request an exception upon demonstration of undue hardship, impracticability, or good cause, subject to the approval of the Superintendent. Sections 2 and 5 of the bill amend Insurance Law §§ 3216(d)(1)(G) and 3221(a)(9) to extend the time for an insured to submit a written proof of loss to an insurer from 90 to 120 days. Sections 3, 19 and 32 of the bill amend Insurance Law §§ 3217-b and 4325 and Public Health Law (P1-IL) § 4406-c respectively to: (1) prohibit an insurer or HMO from implementing an adverse reimbursement change to a contract with a health care professional unless the insurer or HMO gives the health care professional 90 days written notice of the change; and (2) allow the health care professional, within 30 days of such notice, to terminate his or her contract with the insurer or HMO effective upon the implementation date of such adverse reimbursement change. Sections 4 and 17 of the bill add. new Insurance Law §§ 3217-d and 4306-c respectively to require that insurers offering comprehensive policies establish grievance procedures and provide access to care consistent with the requirements of Article 48 of the Insurance Law. Section 6 of the bill amends Insurance Law §§ 3224-a(a) and (b) to require insurers and HMOs to pay claims submitted electronically within 30 days. Under current law, the Superintendent may provide guidance to clarify the Insurance Department's current interpretation that the payment time frame applies from the date the provider submits a clean claim. Section 6 further expands the type of insurers covered by Insurance Law § 3224-a to include municipal cooperative health benefits plans certified pursuant to Article 47 of the Insurance Law. Section 7 of the bill adds a new Insurance Law § 3224-c to prohibit insurers and HMOs from denying a claim on the basis that they are coordinating benefits and another insurer, HMO or other entity is liable for payment of the claim, unless the insurer or HMO has a reasonable basis to believe that the insured/enrollee has other health insurance coverage which is primary. Section 7 further provides that when an insurer or HMO does .not have current information from an insured/enrollee regarding other coverage, the insurer or HMO can request such information and allow the insured/enrollee 45 days to submit the information. Section 8 of the bill amends Insurance Law § 3224-a(c) to provide that where a prompt payment violation is determined as the result of the Superintendent's own investigation, the insurer or HMO shall not be subject to a civil penalty if the Superintendent determines that the insurer or HMO has processed at least ninety-eight percent of the claims submitted in a calendar year in compliance with the requirements of this section. However, this does not apply to violations as a result of individual complaints from providers or insureds. Section 8 further provides that nothing shall limit or exempt an insurer or HMO from payment of a claim or interest. Section 9 of the bill adds a new Insurance Law §§ 3224-a(g) and (h) to provide that except as otherwise permitted by law, health care claims must be submitted by health care providers within 120 after the date of service; provided, however, that nothing precludes the parties from agreeing to a time period that is more favorable to the health care provider. Section 9 further provides that the 120-day timeframe does not abrogate any right or reduce or limit any additional time period for claim submission provided by Regulation 178 (the "Coordination of Benefits" regulation) that was adopted by the Insurance Department on April 1, 2009. Thus, claims submitted consistent with the provisions of that regulation would not be subject to the denial or reduction of payment.provisions contained in this section. Section 9 also provides in connection with contracts for the provision of services pursuant to §364-j or 369-ee of the Social Services Law or Title I-A of Article 25 of the Public Health Law that nothing precludes the parties from agreeing to a different time period for the submission of claims, but in no event less than 90 days, and that existing contract provisions shall not be superseded except to the extent that the contract provides less than 90 days. Section 9 of the bill further provides that an insurer or HMO shall permit a participating health provider to request a reconsideration of a claim that is denied as untimely. If a health care provider demonstrates that the untimely claim was the result of an unusual occurrence and the health care provider has a pattern or practice of timely claim submission, an insurer or HMO may reduce reimbursement to a participating provider for an untimely claim by a penalty of no more than 25 percent. Section 9 also provides that participating providers and insurers or HMOs may agree to a lesser reduction or no reduction at all, that is, the "penalty" can be reduced even to "zero." Section 10 of the bill amends Insurance Law § 3224-b(b) to extend protections and timeframes relating to overpayment recovery efforts initiated by insurers and HMOs, currently applicable to physicians, to all providers. Section 10 also requires insurers and HMOs to allow a provider the opportunity to challenge an overpayment recovery. Sections 11 and 18 of the bill amend Insurance Law §§ 3231(e) and 4308(h) respectively to remove the limitation that an insured's/enrollee's contract must be in effect as of the date a dividend or credit is issued in the event a loss-ratio requirement is not met, and requires the insurer or HMO to make a reasonable effort to identify and refund former policy or contract holders. Sections 12, 13, 14 and 31 of the bill add new Insurance Law §§ 3216(i)(26), 3221(k)(15) and 4303(ff) and Public Health Law § 4406(3) to prohibit insurers and HMOs from treating a hospital that participates within a network as a non-participating provider solely because the health care provider admitting or rendering services to the insured/enrollee is a non-participating provider. These sections also prohibit insurers and HMOs from treating a health care provider that participates within a network as a non-participating provider solely because services are rendered in a non-participating hospital. Sections 15 and 16 of the bill add new Insurance Law §§ 4305(1) and 4306(n) to require insurers and HMOs to provide insureds at least 120 days to submit claims. Sections 20 and 33 of the bill amend Insurance Law § 4803(a) and PHL § 4406-d(1) respectively to require that if a newly-licensed health care professional, or a health care professional moving to New York from another state, joins a group practice of health care professionals that participates in the in-network portion of an insurer's or HMO's network, but the health care professional is not credentialed or declined by the insurer or HMO within 90 days, the health care professional shall be deemed "provisionally credentialed" and shall participate in the in-network portion of an insurer's or HMO's network until the final credentialing determination is made by the insurer or HMO. Sections 21 and 34 of the bill add new Insurance Law § 4900(g-7) and PHL § 4900(7-g) respectively to define "rare disease treatment." Sections 22 and 35 of the bill amend Insurance Law § 4903(c) and PHL § 4903(3) respectively to require utilization review agents to make determinations involving post-hospital home health care services within one business day of receipt of the necessary information, instead of within three business days as would otherwise apply under Insurance Law § 4903(b) and PHL § 4903(2). Sections 22 and 35 further provide that when the day subsequent to the request for post-hospital home health care services falls on a weekend or holiday, a decision shall be made within 72 hours of receipt of the necessary information. Sections 22 and 35 additionally state that if a request for home health care services and all necessary information is submitted prior to hospital discharge, a utilization review agent shall not deny coverage for home health care services on the basis of medical necessity or lack of prior authorization while the utilization review agent's determination is pending. Sections 23 and 36 of the bill amends Insurance Law § 4904(b) and PHL § 4904(2) to specify that home health care services following discharge from an inpatient hospital admission shall be eligible for an expedited appeal with a utilization review agent. Sections 24 and 37 of the bill amend Insurance Law § 4906 and PHL § 4906 respectively to provide that a hospital and an insurer or HMO may agree to utilize an alternative dispute resolution mechanism in lieu of the external appeal process set forth in Article 49 of the Insurance Law and Article 49 of the PHL. Sections 25 and 38 of the bill amend Insurance Law § 4910(b) and PHL § 4910(2) respectively to allow providers to appeal concurrent adverse determinations through the external appeal process. Sections 26 and 39 of the bill amend Insurance Law §§ 4910(b)(2)(B) and (C) and PHL §§ 4910(2)(b)(ii) and (iii) respectively to provide that an insured/enrollee, the insured/enrollee's designee and, in connection with retrospective adverse determinations, an insured/enrollee's health care provider, may request an external appeal if the insured/enrollee has a life-threatening condition and is eligible for rare disease treatment. Sections 27 and 40 of the bill amend Insurance Law §§ 4914(b)(2) and (3) and PHL §§ 4914(2)(b) and (c) respectively to require an external appeal agent to notify a provider, when appropriate, of an external appeal determination. Sections 28 and 41 of the bill amend Insurance Law § 4914(b)(4)(B)(ii)(a) and PHL § 4914(2)(d)(B)(ii)(1) respectively to require that, in determining an external appeal involving a rare disease treatment, the external appeal agent must consider whether such treatment is "likely to benefit" the insured/enrollee. Sections 29 and 42 of the bill amend Insurance Law § 4914(d) and PHL § 4914(4) respectively to require a provider to pay the cost of an external appeal of a concurrent adverse determination if the insurer's or HMO's denial is upheld and require that the insurer or HMO and provider evenly divide the cost of the external appeal of a concurrent adverse determination if the denial is upheld in part. Further, if the Superintendent determines that insurers and HMOs or providers are experiencing hardship as a result of this division of payment, the bill authorizes the Superintendent and the Commissioner of Health to promulgate regulations to limit such hardship. Sections 29 and 42 also authorize the Superintendent to confirm an insured's/enrollee's designation of a provider to bring an external appeal on his or her behalf and set forth procedures and timelines for situations when such authorization is exercised. In particular, if the insured/enrollee fails to confirm a designation, the Superintendent shall offer the provider an opportunity to file an external appeal on its own behalf. Sections 30 and 43 of the bill add a new Insurance Law § 4917 and PHL § 4917 respectively to require that when a provider's external appeal of a concurrent adverse determination is upheld by an external appeal agent, including in cases when the provider is acting as the designee of the insured/enrollee, the provider shall not pursue reimbursement from the insured/enrollee, except for any copayment, coinsurance or deductible. Section 44 of the bill amends Chapter 451 of the Laws of 2007 to provide that Insurance Law § 3238(a)(1)(iii) shall expire and be deemed repealed December 31, 2011, instead of December 31, 2009. Sections 45, 46 and 47 of the bill are. intentionally omitted. Section 48 of the bill provides that the bill would take effect January 1, 2010: except the amendments made by §§ 20 and 33 of the bill, amending Insurance Law § 4803(a) and PHL § 4406-d(l) in regard to provisional credentialing, would take effect on October 1, 2009 and apply only to new applications; the amendments made by §§ 3, 19 and 32 of the bill amending Insurance Law §§ 3217-b(i), 4325(i), and Public Health Law §4406-c(5-d) shall not affect the repeal of those subsections or subdivision; the amendments made by §§ 8 and 44 of the bill, amending Insurance Law §§ 3224-a(c) and § 3238(a)(I)(iii) shall take effect immediately; the amendments made by § 9 of the bill amending Insurance Law § 3224-a shall apply to dates of service on or after April I, 2010; and the amendments made by §§ 2, 4, 5, 15, 16 and 17 of the bill amending Insurance Law §§ 3216(d)(1)(G), 3217-d, 3221(a)(9), 4305(1), 4306(n) and 4306-c shall take effect January 1, 2011. EXISTING LAW : Insurance Law §§ 3217-b and 4325 and PHL § 4406-c govern contracts and relationships between insurers and HMOs and their providers and include provisions such as a prohibition on restrictions against complaints by providers to governmental bodies about the practices of an insurer or HMO and a prohibition on contract provisions that transfer financial risk from insurers or HMOs to providers. Insurance Law §§ 3231 and 4308 address premium rates and dividends for health insurance policies. Insurance Law § 3224-a establishes standards for the prompt payment of health care claims. Insurers and HMOs must pay undisputed claims within 45 days of receipt. If a claim is disputed, the insurer or HMO must pay the undisputed portion of the claim and notify the insured/enrollee of the dispute within 30 days of the claim's receipt. Insurance Law § 3224-b imposes limitations on overpayment recovery efforts. Insurance Law § 4801(c) defines "managed care health insurance contract" and "managed care product." Insurance Law § 4802 establishes a grievance procedure in connection with managed care products. Insurance Law § 4803 and PHL § 4406-d set forth requirements for health care professional applications for network participation. Insurance Law § 4804 establishes requirements for access to specialty care. Article 49 of the Insurance Law and Article 49 of the PHL require insurers and HMOs to have a process for rendering utilization review determinations and establish a right to utilization review and external appeal for insureds/enrollees and, in cases of retrospective adverse determinations, providers. Insurance Law § 4900(g-6) defines an "out-of-network denial" for a managed care product. Insurance Law § 4906 and PHL § 4906 provide that any agreement which purports to waive, limit, disclaim, or in any way diminish the rights set forth in Insurance Law Article 49 or PHL Article 49, except as provided pursuant to Insurance Law § 4910 or P1-IL § 4910, shall be void as contrary to public policy. Insurance Law § 4910(b) and PHL § 4910(2) permit an insured/enrollee, the insured's/enrollee's designee and, in connection with retrospective adverse determinations, an insured's/enrollee's health care provider, to request an external appeal in certain circumstances. In particular, such appeal is permitted if services have been denied as not medically necessary or as experimental or investigational. Insurance Law § 4914(b)(4) and PHL § 4914(2)(d) set forth the standards by which certain external appeals shall be determined. Insurance Law § 4914(d) and PHL § 4914(4) provide that payment for an external appeal shall be the responsibility of the insurer/HMO. PHL § 4406-c provides that HMOs may not prohibit providers from disclosing information to enrollees about the availability of medical care and the products offered by the plan, or from advocating for particular courses of treatment, and requires that contracts between HMOs and providers contain certain provisions. State Technology Law § 305 states that no person shall be required to submit or file any record electronically to any government entity except as otherwise provided by law. LEGISLATIVE HISTORY : Certain provisions contained in this bill were included in A.11737/S.4481-A of 2007-08: which passed the Senate but not the Assembly. STATEMENT IN SUPPORT : Since the advent of managed care, legislative action has been essential to ensure that consumers and providers receive appropriate protection under this system of health care delivery. Significant steps towards this goal were taken in the 1990s with the enactment of the Managed Care Reform Act and External Appeal Law, and again in 2007 with the enactment of additional managed care reforms. Experience under these statutes, however, has shown that the present legal regime remains insufficient to provide sufficient access to health care for consumers, ensure equal treatment, and guarantee timely payment to providers. This bill will implement a series of necessary reforms to New York's legal regime for managed care, and thereby take further legislative steps towards these goals. New York's Managed Care Reform Act, enacted in 1996 and codified as Title I of Article 49 of both the Insurance Law and the PHL, establishes protections for health care professionals with respect to applications and terminations, imposes access to care requirements, establishes a grievance process and requires insurers and HMOs to have a process for rendering utilization review determinations and a process for insured persons to appeal such determinations with the insurer or HMO. Specifically, the Managed Care Reform Act provides the insured/enrollee, the insured's/enrollee's designee and, in the case of a retrospective adverse determination, the insured's/enrollee's health care provider, with the right to appeal an adverse determination with the insurer or HMO. Building upon the Managed Care Reform Act, the External Appeal Law, enacted in 1998 and codified as Title II of Article 49 of both the Insurance Law and the PHL, established an additional level of appeal, independent of the insurer or HMO, if a denial is upheld in the insurer's or HMO's internal utilization review process. Specifically, the External Appeal Law permits an insured/enrollee, the insured's/enrollee's designee and, in the case of a retrospective adverse determination, an insured's/enrollee's health care provider, to appeal a final adverse determination issued by the insurer or HMO to an external appeal agent. Additional managed care protections for consumers and providers were enacted in 2007. These protections impose limitations on when claims for preauthorized services may be denied, establish a right to an external appeal for certain out-of-network denials, require a cooling-off period for terminations of contracts between hospitals and insurers or HMOs, require the collection and dissemination of preferred provider organization information for quality assurance reporting purposes, and establish timeframes for out-of-network provider claim submissions to. certain HMOs. This bill builds upon these reforms to provide further protections to consumers and providers. In particular, the bill provides enhanced consumer protections by: (1) extending existing protections applicable to HMO products, including grievance requirements and access to specialty care protections to HMO look-alike products offered by insurers; (2) changing the criteria for an external appeal agent's review of a rare disease treatment to require an agent to consider whether the treatment is likely to benefit the insured/enrollee, rather than considering whether the treatment is more beneficial than any standard treatment; (3) requiring utilization review agents to use a one business day or 72 hour utilization review timeframe for determinations involving post-hospital home health care services and further requiring home health care services to be covered while a decision is pending when the request for home health care services and all information is provided prior to hospital discharge; and (4) removing the limitation that an insured's/enrollee's contract must be in effect as of the date a dividend or credit is issued in the event a loss ratio requirement is not met. These protections will ensure that consumers are better able to access health care services, and that consumers with similar types of health insurance coverage are able to enjoy the same protections. In addition, the bill establishes enhanced provider protections by: (1) prohibiting insurers and HMOs from implementing an adverse reimbursement change to a contract with a health care professional without prior notification; (2) allowing the provisional credentialing of new health care professionals; (3) allowing providers to pursue an external appeal of a concurrent adverse determination; and (4) prohibiting insurers and HMOs from treating hospitals and providers that participate within a network as non-participating solely because. one or more other providers rendering services to the insured/enrollee for the same or related medical condition does not participate within the insurer's or HMO's provider network. This latter provision in particular will address concerns raised by hospitals and other providers that participate with an insurer or HMO but are treated as non-participating providers simply because the physician admitting the patient to the hospital, or another health care professional that provides services to an admitted patient, does not participate with the insurer or HMO. In such cases, the provider may be reimbursed at the less favorable out-of-network rate and the insured/enrollee will bear a higher copayment, coinsurance or deductible; in other cases, the claim. may be denied. The bill also establishes protections to ensure the prompt processing and payment of health care claims by: (1) shortening the timeframe for payment of electronic claims to 30 days; (2) prohibiting insurers and HMOs from denying payment due to coordination of benefits unless the insurer or HMO has a reasonable basis to believe that the insured has other coverage; and (3) extending to all providers the limitations on overpayment recovery efforts initiated by insurers and HMOs and giving providers the opportunity to challenge an overpayment recovery. These prompt payment protections will ensure that insurers and HMOs make payment for all medically necessary services in a timely manner. BUDGET IMPLICATIONS : This bill will not have a fiscal impact to the State. EFFECTIVE DATE : This bill takes effect January 1, 2010: except the amendments made by §§ 20 and 31 of the bill, amending Insurance Law § 4803(a) and PHL § 4406-d(1) in regard to provisional credentialing, would take effect on October 1, 2009 and apply only to new applications; the amendments made by §§ 3, 19 and 32 of the bill amending Insurance Law §§ 3217-b(i), 4325(i), and Public Health Law §4406-c 5-d shall not affect the repeal of those subsections or subdivision; the amendments made by §§ 8 and 44 of the bill amending §§ 3224-a(c) and § 3238(a)(1)(iii) of the Insurance Law shall take effect immediately; the amendments made by § 9 of the bill amending § 3224-a of the Insurance Law shall apply to dates of service on or after April 1, 2010; and the amendments made by §§ 2, 4, 5, 15, 16 and 17 of the bill amending §§ 3216(d)(1)(G), 3217-d, 3221(a)(9), § 4305(1), 4306(n) and 4306-c of the Insurance Law shall take effect January 1, 2011.
S T A T E O F N E W Y O R K
________________________________________________________________________
201
Third Extraordinary Session
I N S E N A T E
June 24, 2009
___________
Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
twice and ordered printed, and when printed to be committed to the
Committee on Rules
AN ACT to amend the insurance law and the public health law, in relation
to providing enhanced consumer and provider protections; in relation
to referrals to specialists and grievance procedures; in relation to
credits or dividends; in relation to provider contracts and provider
credentialing; in relation to overpayment recovery; in relation to
external appeals; in relation to prompt payment of claims; in relation
to participation status of health care providers; in relation to
utilization review timeframes; and to amend chapter 451 of the laws of
2007 amending the public health law, the social services law and the
insurance law, relating to providing enhanced consumer and provider
protections, in relation to the effectiveness thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The insurance law is amended by adding a new section 316
to read as follows:
S 316. ELECTRONIC FILINGS. NOTWITHSTANDING SUBDIVISION ONE OF SECTION
THREE HUNDRED FIVE OF THE STATE TECHNOLOGY LAW, THE SUPERINTENDENT MAY
PROMULGATE REGULATIONS TO REQUIRE AN INSURER OR OTHER PERSON OR ENTITY
MAKING A FILING OR SUBMISSION WITH THE SUPERINTENDENT PURSUANT TO THIS
CHAPTER TO SUBMIT THE FILING OR SUBMISSION TO THE SUPERINTENDENT BY
ELECTRONIC MEANS. SHOULD THE SUPERINTENDENT REQUIRE THAT A FILING OR
SUBMISSION BE MADE BY ELECTRONIC MEANS, AN INSURER OR OTHER PERSON OR
ENTITY AFFECTED THEREBY MAY SUBMIT A REQUEST TO THE SUPERINTENDENT FOR
AN EXEMPTION FROM THE ELECTRONIC FILING REQUIREMENT UPON A DEMONSTRATION
OF UNDUE HARDSHIP, IMPRACTICABILITY, OR GOOD CAUSE, SUBJECT TO THE
APPROVAL OF THE SUPERINTENDENT.
S 2. Subparagraph (G) of paragraph 1 of subsection (d) of section 3216
of the insurance law is amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12014-15-9
S. 201 2
(G) PROOFS OF LOSS: Written proof of loss must be furnished to the
insurer at its said office in case of claim for loss for which this
policy provides any periodic payment contingent upon continuing loss
within ninety days after the termination of the period for which the
insurer is liable and in case of claim for any other loss within [nine-
ty] ONE HUNDRED TWENTY days after the date of such loss. Failure to
furnish such proof within the time required shall not invalidate nor
reduce any claim if it was not reasonably possible to give proof within
such time, provided such proof is furnished as soon as reasonably possi-
ble and in no event, except in the absence of legal capacity, later than
one year from the time proof is otherwise required.
S 3. 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 HEALTH CARE PROFESSIONAL THAT IS OTHERWISE PERMITTED BY
THE CONTRACT, UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE, THE
INSURER GIVES THE HEALTH CARE PROFESSIONAL WITH WHOM THE INSURER HAS
DIRECTLY CONTRACTED AND WHO IS IMPACTED BY THE ADVERSE REIMBURSEMENT
CHANGE, AT LEAST NINETY DAYS WRITTEN NOTICE OF THE CHANGE. IF THE
CONTRACTING HEALTH CARE PROFESSIONAL OBJECTS TO THE CHANGE THAT IS THE
SUBJECT OF THE NOTICE BY THE INSURER, THE HEALTH CARE PROFESSIONAL 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 EFFECTIVE 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 A
MATERIAL ADVERSE IMPACT ON THE AGGREGATE LEVEL OF PAYMENT TO A HEALTH
CARE PROFESSIONAL, AND THE TERM "HEALTH CARE PROFESSIONAL" SHALL MEAN A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW. 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 METHOD-
OLOGY OR PAYMENT POLICIES ESTABLISHED BY A GOVERNMENT AGENCY OR BY THE
AMERICAN MEDICAL ASSOCIATION'S CURRENT PROCEDURAL TERMINOLOGY (CPT)
CODES, REPORTING GUIDELINES AND CONVENTIONS; 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 METHOD-
OLOGY OR PAYMENT POLICY INDEXING MECHANISM.
(2) NOTHING IN THIS SUBSECTION SHALL CREATE A PRIVATE RIGHT OF ACTION
ON BEHALF OF A HEALTH CARE PROFESSIONAL AGAINST AN INSURER FOR
VIOLATIONS OF THIS SUBSECTION.
S 4. 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
S. 201 3
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 IN THIS SECTION 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 5. Paragraph 9 of subsection (a) of section 3221 of the insurance
law is amended to read as follows:
(9) That in the case of claim for loss of time for disability, written
proof of such loss must be furnished to the insurer within thirty days
after the commencement of the period for which the insurer is liable,
and that subsequent written proofs of the continuance of such disability
must be furnished to the insurer at such intervals as the insurer may
reasonably require, and that in the case of claim for any other loss,
written proof of such loss must be furnished to the insurer within
[ninety] ONE HUNDRED TWENTY days after the date of such loss. Failure to
furnish such proof within such time shall not invalidate or reduce any
claim if it shall be shown not to have been reasonably possible to
furnish such proof within such time, provided such proof was furnished
as soon as reasonably possible.
S 6. The opening paragraph and subsections (a) and (b) of section
3224-a of the insurance law, as amended by chapter 666 of the laws of
1997, are amended to read as follows:
In the processing of all health care claims submitted under contracts
or agreements issued or entered into pursuant to THIS ARTICLE AND arti-
cles [thirty-two,] forty-two [and], forty-three AND FORTY-SEVEN of this
chapter and article forty-four of the public health law and all bills
for health care services rendered by health care providers pursuant to
such contracts or agreements, any insurer or organization or corporation
licensed or certified pursuant to article forty-three OR FORTY-SEVEN of
this chapter or article forty-four of the public health law shall adhere
to the following standards:
(a) Except in a case where the obligation of an insurer or an organ-
ization or corporation licensed or certified pursuant to article forty-
three OR FORTY-SEVEN of this chapter or article forty-four of the public
health law to pay a claim submitted by a policyholder or person covered
under such policy ("COVERED PERSON") or make a payment to a health care
provider is not reasonably clear, or when there is a reasonable basis
supported by specific information available for review by the super-
intendent that such claim or bill for health care services rendered was
submitted fraudulently, such insurer or organization or corporation
shall pay the claim to a policyholder or covered person or make a
payment to a health care provider within [forty-five] THIRTY days of
receipt of a claim or bill for services rendered THAT IS TRANSMITTED VIA
THE INTERNET OR ELECTRONIC MAIL, OR FORTY-FIVE DAYS OF RECEIPT OF A
CLAIM OR BILL FOR SERVICES RENDERED THAT IS SUBMITTED BY OTHER MEANS,
SUCH AS PAPER OR FACSIMILE.
S. 201 4
(b) In a case where the obligation of an insurer or an organization or
corporation licensed or certified pursuant to article forty-three OR
FORTY-SEVEN of this chapter or article forty-four of the public health
law to pay a claim or make a payment for health care services rendered
is not reasonably clear due to a good faith dispute regarding the eligi-
bility of a person for coverage, the liability of another insurer or
corporation or organization for all or part of the claim, the amount of
the claim, the benefits covered under a contract or agreement, or the
manner in which services were accessed or provided, an insurer or organ-
ization or corporation shall pay any undisputed portion of the claim in
accordance with this subsection and notify the policyholder, covered
person or health care provider in writing within thirty calendar days of
the receipt of the claim:
(1) that it is not obligated to pay the claim or make the medical
payment, stating the specific reasons why it is not liable; or
(2) to request all additional information needed to determine liabil-
ity to pay the claim or make the health care payment.
Upon receipt of the information requested in paragraph two of this
subsection or an appeal of a claim or bill for health care services
denied pursuant to paragraph one of this subsection, an insurer or
organization or corporation licensed OR CERTIFIED pursuant to article
forty-three OR FORTY-SEVEN of this chapter or article forty-four of the
public health law shall comply with subsection (a) of this section.
S 7. The insurance law is amended by adding a new section 3224-c to
read as follows:
S 3224-C. COORDINATION OF BENEFITS. AN INSURER OR ORGANIZATION OR
CORPORATION LICENSED OR CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OR
FORTY-SEVEN OF THIS CHAPTER OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH
LAW SHALL NOT DENY A CLAIM, EITHER IN WHOLE OR IN PART, ON THE BASIS
THAT IT IS COORDINATING BENEFITS AND ANOTHER INSURER OR ORGANIZATION OR
CORPORATION OR OTHER ENTITY IS LIABLE FOR THE PAYMENT OF THE CLAIM,
UNLESS IT HAS A REASONABLE BASIS TO BELIEVE THAT THE INSURED HAS OTHER
HEALTH INSURANCE COVERAGE WHICH IS PRIMARY FOR THAT BENEFIT. IF AN
INSURER OR ORGANIZATION OR CORPORATION DOES NOT HAVE CURRENT INFORMATION
FROM THE INSURED REGARDING OTHER COVERAGE, AND REQUESTS SUCH INFORMATION
IN ACCORDANCE WITH SUBSECTION (B) OF SECTION THREE THOUSAND TWO HUNDRED
TWENTY-FOUR-A OF THIS ARTICLE, AND NO INFORMATION IS RECEIVED WITHIN
FORTY-FIVE DAYS, THE CLAIM SHALL BE ADJUDICATED PROVIDED, HOWEVER, THE
CLAIM SHALL NOT BE DENIED BASED ON THE INSURER, OR ORGANIZATION OR
CORPORATION NOT HAVING RECEIVED SUCH INFORMATION.
S 8. Subsection (c) of section 3224-a of the insurance law, as amended
by chapter 666 of the laws of 1997, is amended to read as follows:
(c) [Each] (1) EXCEPT AS PROVIDED IN PARAGRAPH TWO OF THIS SUBSECTION,
EACH claim or bill for health care services processed in violation of
this section shall constitute a separate violation. In addition to the
penalties provided in this chapter, any insurer or organization or
corporation that fails to adhere to the standards contained in this
section shall be obligated to pay to the health care provider or person
submitting the claim, in full settlement of the claim or bill for health
care services, the amount of the claim or health care payment plus
interest on the amount of such claim or health care payment of the
greater of the rate equal to the rate set by the commissioner of taxa-
tion 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 claim or
health care payment was required to be made. When the amount of interest
S. 201 5
due on such a claim is less then two dollars, and insurer or organiza-
tion or corporation shall not be required to pay interest on such claim.
(2) WHERE A VIOLATION OF THIS SECTION IS DETERMINED BY THE SUPERINTEN-
DENT AS A RESULT OF THE SUPERINTENDENT'S OWN INVESTIGATION, EXAMINATION,
AUDIT OR INQUIRY, AN INSURER OR ORGANIZATION OR CORPORATION LICENSED OR
CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OR FORTY-SEVEN OF THIS CHAPTER
OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL NOT BE SUBJECT TO A
CIVIL PENALTY PRESCRIBED IN PARAGRAPH ONE OF THIS SUBSECTION, IF THE
SUPERINTENDENT DETERMINES THAT THE INSURER OR ORGANIZATION OR CORPO-
RATION HAS OTHERWISE PROCESSED AT LEAST NINETY-EIGHT PERCENT OF THE
CLAIMS SUBMITTED IN A CALENDAR YEAR IN COMPLIANCE WITH THIS SECTION;
PROVIDED, HOWEVER, NOTHING IN THIS PARAGRAPH SHALL LIMIT, PRECLUDE OR
EXEMPT AN INSURER OR ORGANIZATION OR CORPORATION FROM PAYMENT OF A CLAIM
AND PAYMENT OF INTEREST PURSUANT TO THIS SECTION. THIS PARAGRAPH SHALL
NOT APPLY TO VIOLATIONS OF THIS SECTION DETERMINED BY THE SUPERINTENDENT
RESULTING FROM INDIVIDUAL COMPLAINTS SUBMITTED TO THE SUPERINTENDENT BY
HEALTH CARE PROVIDERS OR POLICYHOLDERS.
S 9. Section 3224-a of the insurance law is amended by adding two new
subsections (g) and (h) to read as follows:
(G) TIME PERIOD FOR SUBMISSION OF CLAIMS. (1) EXCEPT AS OTHERWISE
PROVIDED BY LAW, HEALTH CARE CLAIMS MUST BE INITIALLY SUBMITTED BY
HEALTH CARE PROVIDERS WITHIN ONE HUNDRED TWENTY DAYS AFTER THE DATE OF
SERVICE TO BE VALID AND ENFORCEABLE AGAINST AN INSURER OR ORGANIZATION
OR CORPORATION LICENSED OR CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OR
ARTICLE FORTY-SEVEN OF THIS CHAPTER OR ARTICLE FORTY-FOUR OF THE PUBLIC
HEALTH LAW. PROVIDED, HOWEVER, THAT NOTHING IN THIS SUBSECTION SHALL
PRECLUDE THE PARTIES FROM AGREEING TO A TIME PERIOD OR OTHER TERMS WHICH
ARE MORE FAVORABLE TO THE HEALTH CARE PROVIDER. PROVIDED FURTHER THAT,
IN CONNECTION WITH CONTRACTS BETWEEN ORGANIZATIONS OR CORPORATIONS
LICENSED OR CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OF THIS CHAPTER OR
ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW AND HEALTH CARE PROVIDERS
FOR THE PROVISION OF SERVICES PURSUANT TO SECTION THREE HUNDRED
SIXTY-FOUR-J OR THREE HUNDRED SIXTY-NINE-EE OF THE SOCIAL SERVICES LAW
OR TITLE I-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC HEALTH LAW, NOTHING
HEREIN SHALL BE DEEMED: (I) TO PRECLUDE THE PARTIES FROM AGREEING TO A
DIFFERENT TIME PERIOD BUT IN NO EVENT LESS THAN NINETY DAYS; OR (II) TO
SUPERSEDE CONTRACT PROVISIONS IN EXISTENCE AT THE TIME THIS SUBSECTION
TAKES EFFECT EXCEPT TO THE EXTENT THAT SUCH CONTRACTS IMPOSE A TIME
PERIOD OF LESS THAN NINETY DAYS.
(2) THIS SUBSECTION SHALL NOT ABROGATE ANY RIGHT OR REDUCE OR LIMIT
ANY ADDITIONAL TIME PERIOD FOR CLAIM SUBMISSION PROVIDED BY LAW OR REGU-
LATION SPECIFICALLY APPLICABLE TO COORDINATION OF BENEFITS IN EFFECT
PRIOR TO THE EFFECTIVE DATE OF THIS SUBSECTION.
(H) (1) AN INSURER OR ORGANIZATION OR CORPORATION LICENSED OR CERTI-
FIED PURSUANT TO ARTICLE FORTY-THREE OR ARTICLE FORTY-SEVEN OF THIS
CHAPTER OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL PERMIT A
PARTICIPATING HEALTH CARE PROVIDER TO REQUEST RECONSIDERATION OF A CLAIM
THAT IS DENIED EXCLUSIVELY BECAUSE IT WAS UNTIMELY SUBMITTED PURSUANT TO
SUBSECTION (G) OF THIS SECTION. THE INSURER OR ORGANIZATION OR CORPO-
RATION SHALL PAY SUCH CLAIM PURSUANT TO THE PROVISIONS OF PARAGRAPH TWO
OF THIS SUBSECTION IF THE HEALTH CARE PROVIDER CAN DEMONSTRATE BOTH
THAT: (I) THE HEALTH CARE PROVIDER'S NON-COMPLIANCE WAS A RESULT OF AN
UNUSUAL OCCURRENCE; AND (II) THE HEALTH CARE PROVIDER HAS A PATTERN OR
PRACTICE OF TIMELY SUBMITTING CLAIMS IN COMPLIANCE WITH SUBDIVISION (G)
OF THIS SECTION.
S. 201 6
(2) AN INSURER OR ORGANIZATION OR CORPORATION LICENSED OR CERTIFIED
PURSUANT TO ARTICLE FORTY-THREE OR ARTICLE FORTY-SEVEN OF THIS CHAPTER
OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW MAY REDUCE THE REIMBURSE-
MENT DUE TO A HEALTH CARE PROVIDER FOR AN UNTIMELY CLAIM THAT OTHERWISE
MEETS THE REQUIREMENTS OF PARAGRAPH ONE OF THIS SUBSECTION BY AN AMOUNT
NOT TO EXCEED TWENTY-FIVE PERCENT OF THE AMOUNT THAT WOULD HAVE BEEN
PAID HAD THE CLAIM BEEN SUBMITTED IN A TIMELY MANNER; PROVIDED, HOWEVER,
THAT NOTHING IN THIS SUBSECTION SHALL PRECLUDE A HEALTH CARE PROVIDER
AND AN INSURER OR ORGANIZATION OR CORPORATION FROM AGREEING TO A LESSER
REDUCTION. THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY TO ANY
CLAIM SUBMITTED THREE HUNDRED SIXTY-FIVE DAYS AFTER THE DATE OF SERVICE,
IN WHICH CASE THE INSURER OR ORGANIZATION OR CORPORATION MAY DENY THE
CLAIM IN FULL.
S 10. Subsection (b) of section 3224-b of the insurance law, as added
by chapter 551 of the laws of 2006, is amended to read as follows:
(b) Overpayments to [physicians] HEALTH CARE PROVIDERS. (1) Other
than recovery for duplicate payments, a health plan shall provide thirty
days written notice to [physicians] HEALTH CARE PROVIDERS before engag-
ing in additional overpayment recovery efforts seeking recovery of the
overpayment of claims to such [physicians] HEALTH CARE PROVIDERS. Such
notice shall state the patient name, service date, payment amount,
proposed adjustment, and a reasonably specific explanation of the
proposed adjustment.
(2) A HEALTH PLAN SHALL PROVIDE A HEALTH CARE PROVIDER WITH THE OPPOR-
TUNITY TO CHALLENGE AN OVERPAYMENT RECOVERY, INCLUDING THE SHARING OF
CLAIMS INFORMATION, AND SHALL ESTABLISH WRITTEN POLICIES AND PROCEDURES
FOR HEALTH CARE PROVIDERS TO FOLLOW TO CHALLENGE AN OVERPAYMENT RECOV-
ERY. SUCH CHALLENGE SHALL SET FORTH THE SPECIFIC GROUNDS ON WHICH THE
PROVIDER IS CHALLENGING THE OVERPAYMENT RECOVERY.
(3) A health plan shall not initiate overpayment recovery efforts more
than twenty-four months after the original payment was received by a
[physician] HEALTH CARE PROVIDER. [Provided, however, that] HOWEVER, no
such time limit shall apply to overpayment recovery efforts [which] THAT
are: (i) based on a reasonable belief of fraud or other intentional
misconduct, or abusive billing, (ii) required by, or initiated at the
request of, a self-insured plan, or (iii) required OR AUTHORIZED by a
state or federal government program OR COVERAGE THAT IS PROVIDED BY THIS
STATE OR A MUNICIPALITY THEREOF TO ITS RESPECTIVE EMPLOYEES, RETIREES OR
MEMBERS. Notwithstanding the aforementioned time limitations, in the
event that a [physician] HEALTH CARE PROVIDER asserts that a health plan
has underpaid a claim or claims, the health plan may defend or set off
such assertion of underpayment based on overpayments going back in time
as far as the claimed underpayment. For purposes of this paragraph,
"abusive billing" shall be defined as a billing practice which results
in the submission of claims that are not consistent with sound fiscal,
business, or medical practices and at such frequency and for such a
period of time as to reflect a consistent course of conduct.
(4) FOR THE PURPOSES OF THIS SUBSECTION THE TERM "HEALTH CARE PROVID-
ER" SHALL MEAN AN ENTITY LICENSED OR CERTIFIED PURSUANT TO ARTICLE TWEN-
TY-EIGHT, THIRTY-SIX OR FORTY OF THE PUBLIC HEALTH LAW, A FACILITY
LICENSED PURSUANT TO ARTICLE NINETEEN, THIRTY-ONE OR THIRTY-TWO OF THE
MENTAL HYGIENE LAW, OR A HEALTH CARE PROFESSIONAL LICENSED, REGISTERED
OR CERTIFIED PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW.
[(3)] (5) Nothing in this section shall be deemed to limit [an insur-
er's] A HEALTH PLAN'S right to pursue recovery of overpayments that
occurred prior to the effective date of this section where the [insurer]
S. 201 7
HEALTH PLAN has provided the [physician] HEALTH CARE PROVIDER with
notice of such recovery efforts prior to the effective date of this
section.
S 11. Subparagraph (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 HOLDER WHO HAD A POLICY which was in
effect [as of December thirty-first of] AT ANY TIME DURING the applica-
ble year [and remains in effect as of the date the dividend or credit is
issued]. THE DIVIDEND OR CREDIT SHALL BE PRORATED BASED ON THE DIRECT
PREMIUMS EARNED FOR THE APPLICABLE YEAR AMONG ALL POLICY HOLDERS ELIGI-
BLE TO RECEIVE SUCH DIVIDEND OR CREDIT. AN INSURER SHALL MAKE A REASON-
ABLE EFFORT TO IDENTIFY THE CURRENT ADDRESS OF, AND ISSUE DIVIDENDS OR
CREDITS TO, FORMER POLICY HOLDERS ENTITLED TO THE DIVIDEND OR CREDIT.
AN INSURER SHALL, WITH RESPECT TO DIVIDENDS OR CREDITS TO WHICH FORMER
POLICY HOLDERS THAT THE INSURER IS UNABLE TO IDENTIFY AFTER A REASONABLE
EFFORT WOULD OTHERWISE BE ENTITLED, HAVE THE OPTION, AS DEEMED ACCEPTA-
BLE BY THE SUPERINTENDENT, OF PROSPECTIVELY ADJUSTING PREMIUM RATES BY
THE AMOUNT OF SUCH DIVIDENDS OR CREDITS, ISSUING THE AMOUNT OF SUCH
DIVIDENDS OR CREDITS TO EXISTING POLICY HOLDERS, DEPOSITING THE AMOUNT
OF SUCH DIVIDENDS OR CREDITS IN THE FUND ESTABLISHED PURSUANT TO SECTION
FOUR THOUSAND THREE HUNDRED TWENTY-TWO-A OF THIS CHAPTER, OR UTILIZING
ANY OTHER METHOD WHICH OFFSETS THE AMOUNT OF SUCH DIVIDENDS OR CREDITS.
All dividends and credits must be distributed by September thirtieth of
the year following the calendar year in which the loss ratio require-
ments were not satisfied. The annual report required by this paragraph
shall include an insurer's calculation of the dividends and credits, as
well as an explanation of the insurer's plan to issue dividends or cred-
its. The instructions and format for calculating and reporting loss
ratios and issuing dividends or credits shall be specified by the super-
intendent 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 12. Subsection (i) of section 3216 of the insurance law is amended
by adding a new paragraph 26 to read as follows:
(26)(A) NO MANAGED CARE HEALTH INSURANCE POLICY THAT PROVIDES COVERAGE
FOR HOSPITAL, MEDICAL OR SURGICAL CARE SHALL PROVIDE THAT SERVICES OF A
PARTICIPATING HOSPITAL WILL BE COVERED AS OUT-OF-NETWORK SERVICES SOLELY
ON THE BASIS THAT THE HEALTH CARE PROVIDER ADMITTING OR RENDERING
SERVICES TO THE INSURED IS NOT A PARTICIPATING PROVIDER.
(B) NO MANAGED CARE HEALTH INSURANCE POLICY THAT PROVIDES COVERAGE FOR
HOSPITAL, MEDICAL OR SURGICAL CARE SHALL PROVIDE THAT SERVICES OF A
S. 201 8
PARTICIPATING HEALTH CARE PROVIDER WILL BE COVERED AS OUT-OF-NETWORK
SERVICES SOLELY ON THE BASIS THAT THE SERVICES ARE RENDERED IN A
NON-PARTICIPATING HOSPITAL.
(C) FOR PURPOSES OF THIS PARAGRAPH, A "HEALTH CARE PROVIDER" IS A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW OR A HEALTH CARE PROFESSIONAL COMPAR-
ABLY LICENSED, REGISTERED OR CERTIFIED BY ANOTHER STATE.
(D) FOR PURPOSES OF THIS PARAGRAPH, A "MANAGED CARE HEALTH INSURANCE
POLICY" IS A POLICY THAT REQUIRES THAT SERVICES BE PROVIDED BY A PROVID-
ER PARTICIPATING IN THE INSURER'S NETWORK IN ORDER FOR THE INSURED TO
RECEIVE THE MAXIMUM LEVEL OF REIMBURSEMENT UNDER THE POLICY.
S 13. Subsection (k) of section 3221 of the insurance law is amended
by adding a new paragraph 15 to read as follows:
(15)(A) NO GROUP OR BLANKET MANAGED CARE HEALTH INSURANCE POLICY THAT
PROVIDES COVERAGE FOR HOSPITAL, MEDICAL OR SURGICAL CARE SHALL PROVIDE
THAT SERVICES OF A PARTICIPATING HOSPITAL WILL BE COVERED AS
OUT-OF-NETWORK SERVICES SOLELY ON THE BASIS THAT THE HEALTH CARE PROVID-
ER ADMITTING OR RENDERING SERVICES TO THE INSURED IS NOT A PARTICIPATING
PROVIDER.
(B) NO GROUP OR BLANKET MANAGED CARE HEALTH INSURANCE POLICY THAT
PROVIDES COVERAGE FOR HOSPITAL, MEDICAL OR SURGICAL CARE SHALL PROVIDE
THAT SERVICES OF A PARTICIPATING HEALTH CARE PROVIDER WILL BE COVERED AS
OUT-OF-NETWORK SERVICES SOLELY ON THE BASIS THAT THE SERVICES ARE
RENDERED IN A NON-PARTICIPATING HOSPITAL.
(C) FOR PURPOSES OF THIS PARAGRAPH, A "HEALTH CARE PROVIDER" IS A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW OR A HEALTH CARE PROFESSIONAL COMPAR-
ABLY LICENSED, REGISTERED OR CERTIFIED BY ANOTHER STATE.
(D) FOR PURPOSES OF THIS PARAGRAPH, A "MANAGED CARE HEALTH INSURANCE
POLICY" IS A POLICY THAT REQUIRES THAT SERVICES BE PROVIDED BY A PROVID-
ER PARTICIPATING IN THE INSURER'S NETWORK IN ORDER FOR THE INSURED TO
RECEIVE THE MAXIMUM LEVEL OF REIMBURSEMENT UNDER THE POLICY.
S 14. Section 4303 of the insurance law is amended by adding a new
subsection (ff) to read as follows:
(FF) (1) NO MANAGED CARE CONTRACT ISSUED BY A HEALTH SERVICE CORPO-
RATION, HOSPITAL SERVICE CORPORATION OR MEDICAL EXPENSE INDEMNITY CORPO-
RATION THAT PROVIDES COVERAGE FOR HOSPITAL, MEDICAL OR SURGICAL CARE
SHALL PROVIDE THAT SERVICES OF A PARTICIPATING HOSPITAL WILL BE COVERED
AS OUT-OF-NETWORK SERVICES SOLELY ON THE BASIS THAT THE HEALTH CARE
PROVIDER ADMITTING OR RENDERING SERVICES TO THE INSURED IS NOT A PARTIC-
IPATING PROVIDER.
(2) NO MANAGED CARE CONTRACT ISSUED BY A HEALTH SERVICE CORPORATION,
HOSPITAL SERVICE CORPORATION OR MEDICAL EXPENSE INDEMNITY CORPORATION
THAT PROVIDES COVERAGE FOR HOSPITAL, MEDICAL OR SURGICAL CARE SHALL
PROVIDE THAT SERVICES OF A PARTICIPATING HEALTH CARE PROVIDER WILL BE
COVERED AS OUT-OF-NETWORK SERVICES SOLELY ON THE BASIS THAT THE SERVICES
ARE RENDERED IN A NON-PARTICIPATING HOSPITAL.
(3) FOR PURPOSES OF THIS SUBSECTION, A "HEALTH CARE PROVIDER" IS A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW OR A HEALTH CARE PROFESSIONAL COMPAR-
ABLY LICENSED, REGISTERED OR CERTIFIED BY ANOTHER STATE.
(4) FOR PURPOSES OF THIS SUBSECTION, A "MANAGED CARE CONTRACT" IS A
CONTRACT THAT REQUIRES THAT SERVICES BE PROVIDED BY A PROVIDER PARTIC-
IPATING IN THE CORPORATION'S NETWORK IN ORDER FOR THE SUBSCRIBER TO
RECEIVE THE MAXIMUM LEVEL OF REIMBURSEMENT UNDER THE CONTRACT.
S. 201 9
S 15. Section 4305 of the insurance law is amended by adding a new
subsection (1) to read as follows:
(1) A HEALTH CARE CLAIM FROM A SUBSCRIBER COVERED UNDER A CONTRACT
ISSUED PURSUANT TO THIS SECTION SHALL BE SUBMITTED WITHIN ONE HUNDRED
TWENTY DAYS FROM THE DATE OF SERVICE; PROVIDED, HOWEVER, THAT IF IT WAS
NOT REASONABLY POSSIBLE FOR THE SUBSCRIBER TO SUBMIT THE CLAIM WITHIN
THAT TIMEFRAME, THEN THE CLAIM SHALL BE SUBMITTED AS SOON AS REASONABLY
POSSIBLE.
S 16. Section 4306 of the insurance law is amended by adding a new
subsection (n) to read as follows:
(N) A STATEMENT THAT A HEALTH CARE CLAIM FROM A SUBSCRIBER SHALL BE
SUBMITTED WITHIN ONE HUNDRED TWENTY DAYS FROM THE DATE OF SERVICE;
PROVIDED, HOWEVER, THAT IF IT WAS NOT REASONABLY POSSIBLE FOR THE
SUBSCRIBER TO SUBMIT THE CLAIM WITHIN THAT TIMEFRAME, THEN THE CLAIM
SHALL BE SUBMITTED AS SOON AS REASONABLY POSSIBLE.
S 17. 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 IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THAT
A CORPORATION, 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 18. 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
S. 201 10
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 HOLDER OR SUBSCRIBER WHO HAD A CONTRACT that was in effect [as
of December thirty-first of] AT ANY TIME DURING the applicable year [and
remains in effect as of the date the dividend or credit is issued]. THE
DIVIDEND OR CREDIT SHALL BE PRORATED BASED ON THE DIRECT PREMIUMS EARNED
FOR THE APPLICABLE YEAR AMONG ALL CONTRACT HOLDERS OR SUBSCRIBERS ELIGI-
BLE TO RECEIVE SUCH DIVIDEND OR CREDIT. A CORPORATION SHALL MAKE A
REASONABLE EFFORT TO IDENTIFY THE CURRENT ADDRESS OF, AND ISSUE DIVI-
DENDS OR CREDITS TO, FORMER CONTRACT HOLDERS OR SUBSCRIBERS ENTITLED TO
THE DIVIDEND OR CREDIT. A CORPORATION SHALL, WITH RESPECT TO DIVIDENDS
OR CREDITS TO WHICH FORMER CONTRACT HOLDERS THAT THE CORPORATION IS
UNABLE TO IDENTIFY AFTER A REASONABLE EFFORT WOULD OTHERWISE BE ENTI-
TLED, HAVE THE OPTION, AS DEEMED ACCEPTABLE BY THE SUPERINTENDENT, OF
PROSPECTIVELY ADJUSTING PREMIUM RATES BY THE AMOUNT OF SUCH DIVIDENDS OR
CREDITS, ISSUING THE AMOUNT OF SUCH DIVIDENDS OR CREDITS TO EXISTING
CONTRACT HOLDERS, DEPOSITING THE AMOUNT OF SUCH DIVIDENDS OR CREDITS IN
THE FUND ESTABLISHED PURSUANT TO SECTION FOUR THOUSAND THREE HUNDRED
TWENTY-TWO-A OF THIS ARTICLE, OR UTILIZING ANY OTHER METHOD WHICH
OFFSETS THE AMOUNT OF SUCH DIVIDENDS OR CREDITS. All dividends and cred-
its 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 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 super-
intendent 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 19. 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 HEALTH CARE PROFESSIONAL THAT IS OTHERWISE PERMITTED BY
THE CONTRACT, UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE, THE
INSURER GIVES THE HEALTH CARE PROFESSIONAL WITH WHOM THE INSURER HAS
DIRECTLY CONTRACTED AND WHO IS IMPACTED BY THE ADVERSE REIMBURSEMENT
CHANGE, AT LEAST NINETY DAYS WRITTEN NOTICE OF THE CHANGE. IF THE
CONTRACTING HEALTH CARE PROFESSIONAL OBJECTS TO THE CHANGE THAT IS THE
SUBJECT OF THE NOTICE BY THE INSURER, THE HEALTH CARE PROFESSIONAL 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 EFFECTIVE 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 A
MATERIAL ADVERSE IMPACT ON THE AGGREGATE LEVEL OF PAYMENT TO A HEALTH
CARE PROFESSIONAL, AND THE TERM "HEALTH CARE PROFESSIONAL" SHALL MEAN A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW. 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
S. 201 11
A RESULT OF CHANGES IN FEE SCHEDULES, REIMBURSEMENT METHODOLOGY OR
PAYMENT POLICIES ESTABLISHED BY A GOVERNMENT AGENCY OR BY THE AMERICAN
MEDICAL ASSOCIATION'S CURRENT PROCEDURAL TERMINOLOGY (CPT) CODES,
REPORTING GUIDELINES AND CONVENTIONS; 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 HEALTH CARE PROFESSIONAL AGAINST AN INSURER FOR
VIOLATIONS OF THIS SUBSECTION.
S 20. 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
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 COMPLETED APPLICATION OF A NEWLY-LICENSED HEALTH CARE
PROFESSIONAL OR A HEALTH CARE PROFESSIONAL WHO HAS RECENTLY RELOCATED TO
THIS STATE FROM ANOTHER STATE AND HAS NOT PREVIOUSLY PRACTICED IN THIS
STATE, WHO JOINS A GROUP PRACTICE OF HEALTH CARE PROFESSIONALS EACH OF
WHOM PARTICIPATES IN THE IN-NETWORK PORTION OF AN INSURER'S NETWORK, IS
NEITHER APPROVED NOR DECLINED WITHIN NINETY DAYS PURSUANT TO PARAGRAPH
ONE OF THIS SUBSECTION, SUCH HEALTH CARE PROFESSIONAL SHALL BE DEEMED
"PROVISIONALLY CREDENTIALED" AND MAY PARTICIPATE IN THE IN-NETWORK
PORTION OF AN INSURER'S NETWORK; PROVIDED, HOWEVER, THAT A PROVISIONALLY
CREDENTIALED PHYSICIAN MAY NOT BE DESIGNATED AS AN INSURED'S PRIMARY
CARE PHYSICIAN UNTIL SUCH TIME AS THE PHYSICIAN HAS BEEN FULLY CREDEN-
TIALED. THE NETWORK PARTICIPATION FOR A PROVISIONALLY CREDENTIALED
HEALTH CARE PROFESSIONAL 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 HEALTH CARE
PROFESSIONAL SHALL ONLY BE ELIGIBLE FOR PROVISIONAL CREDENTIALING IF THE
GROUP PRACTICE OF HEALTH CARE PROFESSIONALS NOTIFIES THE INSURER IN
WRITING THAT, SHOULD THE APPLICATION ULTIMATELY BE DENIED, THE HEALTH
CARE PROFESSIONAL OR THE GROUP PRACTICE: (A) SHALL REFUND ANY PAYMENTS
MADE BY THE INSURER FOR IN-NETWORK SERVICES PROVIDED BY THE PROVI-
SIONALLY CREDENTIALED HEALTH CARE PROFESSIONAL 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
S. 201 12
TO COLLECT THE COPAYMENT OR COINSURANCE THAT OTHERWISE WOULD HAVE BEEN
PAYABLE HAD THE INSURED RECEIVED SERVICES FROM A HEALTH CARE PROFES-
SIONAL 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 HEALTH CARE PROFESSIONAL
WAS PROVISIONALLY CREDENTIALED; PROVIDED, HOWEVER, THAT NOTHING HEREIN
SHALL PREVENT AN INSURER FROM PAYING A CLAIM FROM A HEALTH CARE PROFES-
SIONAL WHO IS PROVISIONALLY CREDENTIALED UPON SUBMISSION OF SUCH CLAIM.
AN INSURER SHALL NOT DENY, AFTER APPEAL, A CLAIM FOR SERVICES PROVIDED
BY A PROVISIONALLY CREDENTIALED HEALTH CARE PROFESSIONAL SOLELY ON THE
GROUND THAT THE CLAIM WAS NOT TIMELY FILED.
S 21. Section 4900 of the insurance law is amended by adding a new
subsection (g-7) to read as follows:
(G-7) "RARE DISEASE" MEANS A LIFE THREATENING OR DISABLING CONDITION
OR DISEASE THAT (1)(A) IS CURRENTLY OR HAS BEEN SUBJECT TO A RESEARCH
STUDY BY THE NATIONAL INSTITUTES OF HEALTH RARE DISEASES CLINICAL
RESEARCH NETWORK; OR (B) AFFECTS FEWER THAN TWO HUNDRED THOUSAND UNITED
STATES RESIDENTS PER YEAR; AND (2) FOR WHICH THERE DOES NOT EXIST A
STANDARD HEALTH SERVICE OR PROCEDURE COVERED BY THE HEALTH CARE PLAN
THAT IS MORE CLINICALLY BENEFICIAL THAN THE REQUESTED HEALTH SERVICE OR
TREATMENT. A PHYSICIAN, OTHER THAN THE INSURED'S TREATING PHYSICIAN,
SHALL CERTIFY IN WRITING THAT THE CONDITION IS A RARE DISEASE AS
DEFINED IN THIS SUBSECTION. THE CERTIFYING PHYSICIAN SHALL BE A
LICENSED, BOARD-CERTIFIED OR BOARD-ELIGIBLE PHYSICIAN WHO SPECIALIZES IN
THE AREA OF PRACTICE APPROPRIATE TO TREAT THE INSURED'S RARE DISEASE.
THE CERTIFICATION SHALL PROVIDE EITHER: (1) THAT THE INSURED'S RARE
DISEASE IS CURRENTLY OR HAS BEEN SUBJECT TO A RESEARCH STUDY BY THE
NATIONAL INSTITUTES OF HEALTH RARE DISEASES CLINICAL RESEARCH NETWORK;
OR (2) THAT THE INSURED'S RARE DISEASE AFFECTS FEWER THAN TWO HUNDRED
THOUSAND UNITED STATES RESIDENTS PER YEAR. THE CERTIFICATION SHALL RELY
ON MEDICAL AND SCIENTIFIC EVIDENCE TO SUPPORT THE REQUESTED HEALTH
SERVICE OR PROCEDURE, IF SUCH EVIDENCE EXISTS, AND SHALL INCLUDE A
STATEMENT THAT, BASED ON THE PHYSICIAN'S CREDIBLE EXPERIENCE, THERE IS
NO STANDARD TREATMENT THAT IS LIKELY TO BE MORE CLINICALLY BENEFICIAL TO
THE INSURED THAN THE REQUESTED HEALTH SERVICE OR PROCEDURE AND THE
REQUESTED HEALTH SERVICE OR PROCEDURE IS LIKELY TO BENEFIT THE INSURED
IN THE TREATMENT OF THE INSURED'S RARE DISEASE AND THAT SUCH BENEFIT TO
THE INSURED OUTWEIGHS THE RISKS OF SUCH HEALTH SERVICE OR PROCEDURE.
THE CERTIFYING PHYSICIAN SHALL DISCLOSE ANY MATERIAL FINANCIAL OR
PROFESSIONAL RELATIONSHIP WITH THE PROVIDER OF THE REQUESTED HEALTH
SERVICE OR PROCEDURE AS PART OF THE APPLICATION FOR EXTERNAL APPEAL OF
DENIAL OF A RARE DISEASE TREATMENT. IF THE PROVISION OF THE REQUESTED
HEALTH SERVICE OR PROCEDURE AT A HEALTH CARE FACILITY REQUIRES PRIOR
APPROVAL OF AN INSTITUTIONAL REVIEW BOARD, AN INSURED OR INSURED'S
DESIGNEE SHALL ALSO SUBMIT SUCH APPROVAL AS PART OF THE EXTERNAL APPEAL
APPLICATION.
S 22. Subsection (c) of section 4903 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:
(c) A utilization review agent shall make a determination involving
continued or extended health care services, [or] additional services for
an insured undergoing a course of continued treatment prescribed by a
health care provider, OR HOME HEALTH CARE SERVICES FOLLOWING AN INPA-
TIENT HOSPITAL ADMISSION, and SHALL provide notice of such determination
to the insured or the insured's designee, which may be satisfied by
notice to the insured's health care provider, by telephone and in writ-
S. 201 13
ing within one business day of receipt of the necessary information
EXCEPT, WITH RESPECT TO HOME HEALTH CARE SERVICES FOLLOWING AN INPATIENT
HOSPITAL ADMISSION, WITHIN SEVENTY-TWO HOURS OF RECEIPT OF THE NECESSARY
INFORMATION WHEN THE DAY SUBSEQUENT TO THE REQUEST FALLS ON A WEEKEND
OR HOLIDAY. Notification of continued or extended services shall
include the number of extended services approved, the new total of
approved services, the date of onset of services and the next review
date. PROVIDED THAT A REQUEST FOR HOME HEALTH CARE SERVICES AND ALL
NECESSARY INFORMATION IS SUBMITTED TO THE UTILIZATION REVIEW AGENT PRIOR
TO DISCHARGE FROM AN INPATIENT HOSPITAL ADMISSION PURSUANT TO THIS
SUBSECTION, A UTILIZATION REVIEW AGENT SHALL NOT DENY, ON THE BASIS OF
MEDICAL NECESSITY OR LACK OF PRIOR AUTHORIZATION, COVERAGE FOR HOME
HEALTH CARE SERVICES WHILE A DETERMINATION BY THE UTILIZATION REVIEW
AGENT IS PENDING.
S 23. Subsection (b) of section 4904 of the insurance law, as added by
chapter 705 of the laws of 1996, paragraph 2 as amended by chapter 586
of the laws of 1998, is amended to read as follows:
(b) A utilization review agent shall establish an expedited appeal
process for appeal of an adverse determination involving (1) continued
or extended health care services, procedures or treatments or additional
services for an insured undergoing a course of continued treatment
prescribed by a health care provider or HOME HEALTH CARE SERVICES
FOLLOWING DISCHARGE FROM AN INPATIENT HOSPITAL ADMISSION PURSUANT TO
SUBSECTION (C) OF SECTION FOUR THOUSAND NINE HUNDRED THREE OF THIS ARTI-
CLE OR (2) an adverse determination in which the health care provider
believes an immediate appeal is warranted except any retrospective
determination. Such process shall include mechanisms which facilitate
resolution of the appeal including but not limited to the sharing of
information from the insured's health care provider and the utilization
review agent by telephonic means or by facsimile. The utilization review
agent shall provide reasonable access to its clinical peer reviewer
within one business day of receiving notice of the taking of an expe-
dited appeal. Expedited appeals shall be determined within two business
days of receipt of necessary information to conduct such appeal. Expe-
dited appeals which do not result in a resolution satisfactory to the
appealing party may be further appealed through the standard appeal
process, or through the external appeal process pursuant to section four
thousand nine hundred fourteen of this article as applicable.
S 24. 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 AGREE TO AN ALTERNATIVE DISPUTE RESOLUTION MECHANISM TO
RESOLVE DISPUTES OTHERWISE SUBJECT TO THIS ARTICLE.
S 25. 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:
S. 201 14
S 26. Subparagraphs (B) and (C) of paragraph 2 of subsection (b) of
section 4910 of the insurance law, as added by chapter 586 of the laws
of 1998, are amended to read as follows:
(B) the insured's attending physician has certified that the insured
has a life-threatening or disabling condition or disease (a) for which
standard health services or procedures have been ineffective or would be
medically inappropriate, or (b) for which there does not exist a more
beneficial standard health service or procedure covered by the health
care plan, or (c) for which there exists a clinical trial OR RARE
DISEASE TREATMENT, and
(C) the insured's attending physician, who must be a licensed, board-
certified or board-eligible physician qualified to practice in the area
of practice appropriate to treat the insured's life-threatening or disa-
bling condition or disease, must have recommended either (a) a health
service or procedure (including a pharmaceutical product within the
meaning of subparagraph (B) of paragraph two of subsection (e) of
section four thousand nine hundred of this article) that, based on two
documents from the available medical and scientific evidence, is likely
to be more beneficial to the insured than any covered standard health
service or procedure OR, IN THE CASE OF A RARE DISEASE, BASED ON THE
PHYSICIAN'S CERTIFICATION REQUIRED BY SUBSECTION (G-7) OF SECTION FOUR
THOUSAND NINE HUNDRED OF THIS ARTICLE AND SUCH OTHER EVIDENCE AS THE
INSURED, THE INSURED'S DESIGNEE OR THE INSURED'S ATTENDING PHYSICIAN MAY
PRESENT, THAT THE REQUESTED HEALTH SERVICE OR PROCEDURE IS LIKELY TO
BENEFIT THE INSURED IN THE TREATMENT OF THE INSURED'S RARE DISEASE AND
THAT SUCH BENEFIT TO THE INSURED OUTWEIGHS THE RISKS OF SUCH HEALTH
SERVICE OR PROCEDURE; or (b) a clinical trial for which the insured is
eligible. Any physician certification provided under this section shall
include a statement of the evidence relied upon by the physician in
certifying his or her recommendation, and
S 27. 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, THE INSURED'S HEALTH CARE PROVIDER WHERE
APPROPRIATE, and the health care plan, in writing, of the appeal deter-
mination 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, THE INSURED'S HEALTH CARE PROVIDER WHERE APPROPRIATE, and
the health plan of its determination by telephone or facsimile, followed
immediately by written notification of such determination.
S. 201 15
S 28. Clause (a) of item (ii) of subparagraph (B) of paragraph 4 of
subsection (b) of section 4914 of the insurance law, as added by chapter
586 of the laws of 1998, is amended to read as follows:
(a) that the patient costs of the proposed health service or procedure
shall be covered by the health care plan either: when a majority of the
panel of reviewers determines, BASED upon review of the applicable
medical and scientific evidence AND, IN CONNECTION WITH RARE DISEASES,
THE PHYSICIAN'S CERTIFICATION REQUIRED BY SUBSECTION (G-7) OF SECTION
FOUR THOUSAND NINE HUNDRED OF THIS ARTICLE AND SUCH OTHER EVIDENCE AS
THE INSURED, THE INSURED'S DESIGNEE OR THE INSURED'S ATTENDING PHYSICIAN
MAY PRESENT (or upon confirmation that the recommended treatment is a
clinical trial), the insured's medical record, and any other pertinent
information, that the proposed health service or treatment (including a
pharmaceutical product within the meaning of subparagraph (B) of para-
graph two of subsection (e) of section four thousand nine hundred of
this article is likely to be more beneficial than any standard treatment
or treatments for the insured's life-threatening or disabling condition
or disease OR, FOR RARE DISEASES, THAT THE REQUESTED HEALTH SERVICE OR
PROCEDURE IS LIKELY TO BENEFIT THE INSURED IN THE TREATMENT OF THE
INSURED'S RARE DISEASE AND THAT SUCH BENEFIT TO THE INSURED OUTWEIGHS
THE RISKS OF SUCH HEALTH SERVICE OR PROCEDURE (or, in the case of a
clinical trial, is likely to benefit the insured in the treatment of the
insured's condition or disease); or when a reviewing panel is evenly
divided as to a determination concerning coverage of the health service
or procedure, or
S 29. 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 DIVIDED 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; PROVIDED, HOWEVER, THAT
THE SUPERINTENDENT MAY, UPON A DETERMINATION THAT 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
S. 201 16
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN PART, IN CONSULTATION
WITH THE COMMISSIONER OF HEALTH, PROMULGATE REGULATIONS TO LIMIT SUCH
HARDSHIP.
(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, IN WHICH CASE 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 SUPER-
INTENDENT SHALL 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 SUPERINTENDENT'S REQUESTS
WITHIN THE SPECIFIED TIMEFRAME, THE SUPERINTENDENT SHALL REJECT THE
APPEAL. IF THE HEALTH CARE PROVIDER RESPONDS TO THE SUPERINTENDENT'S
REQUESTS, PAYMENT FOR THE EXTERNAL APPEAL SHALL BE MADE IN ACCORDANCE
WITH PARAGRAPHS TWO AND THREE OF THIS SUBSECTION.
S 30. 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 FOR SERVICES DETERMINED
NOT MEDICALLY NECESSARY BY THE EXTERNAL APPEAL AGENT, EXCEPT TO COLLECT
A COPAYMENT, COINSURANCE OR DEDUCTIBLE.
S 31. Subdivisions 3 and 4 of section 4406 of the public health law,
subdivision 3 as renumbered by chapter 538 of the laws of 1993, are
renumbered subdivisions 4 and 5 and a new subdivision 3 is added to read
as follows:
3. (A) NO CONTRACT ISSUED PURSUANT TO THIS SECTION SHALL PROVIDE THAT
SERVICES OF A PARTICIPATING HOSPITAL WILL BE COVERED AS OUT-OF-NETWORK
SERVICES SOLELY ON THE BASIS THAT THE HEALTH CARE PROVIDER ADMITTING OR
RENDERING SERVICES TO THE ENROLLEE IS NOT A PARTICIPATING PROVIDER.
(B) NO CONTRACT ISSUED PURSUANT TO THIS SECTION SHALL PROVIDE THAT
SERVICES OF A PARTICIPATING HEALTH CARE PROVIDER WILL BE COVERED AS
OUT-OF-NETWORK SERVICES SOLELY ON THE BASIS THAT THE SERVICES ARE
RENDERED IN A NON-PARTICIPATING HOSPITAL.
(C) FOR PURPOSES OF THIS SUBDIVISION, A "HEALTH CARE PROVIDER" IS A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW OR A HEALTH CARE PROFESSIONAL COMPAR-
ABLY LICENSED, REGISTERED OR CERTIFIED BY ANOTHER STATE.
S 32. 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 HEALTH CARE PROFESSIONAL THAT IS OTHERWISE
PERMITTED BY THE CONTRACT, UNLESS, PRIOR TO THE EFFECTIVE DATE OF THE
CHANGE, THE HEALTH CARE PLAN GIVES THE HEALTH CARE PROFESSIONAL WITH
WHOM THE HEALTH CARE PLAN HAS DIRECTLY CONTRACTED AND WHO IS IMPACTED BY
THE ADVERSE REIMBURSEMENT CHANGE, AT LEAST NINETY DAYS WRITTEN NOTICE OF
THE CHANGE. IF THE CONTRACTING HEALTH CARE PROFESSIONAL OBJECTS TO THE
S. 201 17
CHANGE THAT IS THE SUBJECT OF THE NOTICE BY THE HEALTH CARE PLAN, THE
HEALTH CARE PROFESSIONAL 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 IMPLEMENTATION
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 A MATERIAL
ADVERSE IMPACT ON THE AGGREGATE LEVEL OF PAYMENT TO A HEALTH CARE
PROFESSIONAL, AND THE TERM "HEALTH CARE PROFESSIONAL" SHALL MEAN A
HEALTH CARE PROFESSIONAL LICENSED, REGISTERED OR CERTIFIED PURSUANT TO
TITLE EIGHT OF THE EDUCATION LAW. 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 GOVERNMENT AGENCY OR BY THE AMERICAN
MEDICAL ASSOCIATION'S CURRENT PROCEDURAL TERMINOLOGY (CPT) CODES,
REPORTING GUIDELINES AND CONVENTIONS; 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.
(B) NOTHING IN THIS SUBDIVISION SHALL CREATE A PRIVATE RIGHT OF ACTION
ON BEHALF OF A HEALTH CARE PROFESSIONAL AGAINST A HEALTH CARE PLAN FOR
VIOLATIONS OF THIS SUBDIVISION.
S 33. 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 COMPLETED APPLICATION OF A NEWLY-LICENSED HEALTH CARE
PROFESSIONAL OR A HEALTH CARE PROFESSIONAL WHO HAS RECENTLY RELOCATED TO
THIS STATE FROM ANOTHER STATE AND HAS NOT PREVIOUSLY PRACTICED IN THIS
STATE, WHO JOINS A GROUP PRACTICE OF HEALTH CARE PROFESSIONALS EACH OF
WHOM PARTICIPATES IN THE IN-NETWORK PORTION OF A HEALTH CARE PLAN'S
NETWORK, IS NEITHER APPROVED NOR DECLINED WITHIN NINETY DAYS PURSUANT TO
PARAGRAPH (A) OF THIS SUBDIVISION, THE HEALTH CARE PROFESSIONAL SHALL BE
DEEMED "PROVISIONALLY CREDENTIALED" AND MAY PARTICIPATE IN THE IN-NET-
WORK PORTION OF THE HEALTH CARE PLAN'S NETWORK; PROVIDED, HOWEVER, THAT
A PROVISIONALLY CREDENTIALED 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 A PROVISIONALLY
S. 201 18
CREDENTIALED HEALTH CARE PROFESSIONAL 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 HEALTH CARE PROFESSIONAL SHALL ONLY BE ELIGIBLE FOR PROVISIONAL
CREDENTIALING IF THE GROUP PRACTICE OF HEALTH CARE PROFESSIONALS NOTI-
FIES THE HEALTH CARE PLAN IN WRITING THAT, SHOULD THE APPLICATION ULTI-
MATELY BE DENIED, THE HEALTH CARE PROFESSIONAL OR THE GROUP PRACTICE:
(I) SHALL REFUND ANY PAYMENTS MADE BY THE HEALTH CARE PLAN FOR IN-NET-
WORK SERVICES PROVIDED BY THE PROVISIONALLY CREDENTIALED HEALTH CARE
PROFESSIONAL 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 HEALTH CARE PROFESSIONAL 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 HEALTH CARE PROFESSIONAL WAS PROVISIONALLY CREDEN-
TIALED; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL PREVENT A HEALTH
CARE PLAN FROM PAYING A CLAIM FROM A HEALTH CARE PROFESSIONAL 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 HEALTH CARE PROFESSIONAL SOLELY ON THE GROUND
THAT THE CLAIM WAS NOT TIMELY FILED.
S 34. Section 4900 of the public health law is amended by adding a new
subdivision 7-g to read as follows:
7-G. "RARE DISEASE" MEANS A LIFE THREATENING OR DISABLING CONDITION OR
DISEASE THAT (1)(A) IS CURRENTLY OR HAS BEEN SUBJECT TO A RESEARCH STUDY
BY THE NATIONAL INSTITUTES OF HEALTH RARE DISEASES CLINICAL RESEARCH
NETWORK OR (B) AFFECTS FEWER THAN TWO HUNDRED THOUSAND UNITED STATES
RESIDENTS PER YEAR, AND (2) FOR WHICH THERE DOES NOT EXIST A STANDARD
HEALTH SERVICE OR PROCEDURE COVERED BY THE HEALTH CARE PLAN THAT IS MORE
CLINICALLY BENEFICIAL THAN THE REQUESTED HEALTH SERVICE OR TREATMENT. A
PHYSICIAN, OTHER THAN THE ENROLLEE'S TREATING PHYSICIAN, SHALL CERTIFY
IN WRITING THAT THE CONDITION IS A RARE DISEASE AS DEFINED IN THIS
SUBSECTION. THE CERTIFYING PHYSICIAN SHALL BE A LICENSED, BOARD-CERTI-
FIED OR BOARD-ELIGIBLE PHYSICIAN WHO SPECIALIZES IN THE AREA OF PRACTICE
APPROPRIATE TO TREAT THE ENROLLEE'S RARE DISEASE. THE CERTIFICATION
SHALL PROVIDE EITHER: (1) THAT THE INSURED'S RARE DISEASE IS CURRENTLY
OR HAS BEEN SUBJECT TO A RESEARCH STUDY BY THE NATIONAL INSTITUTES OF
HEALTH RARE DISEASES CLINICAL RESEARCH NETWORK; OR (2) THAT THE
INSURED'S RARE DISEASE AFFECTS FEWER THAN TWO HUNDRED THOUSAND UNITED
STATES RESIDENTS PER YEAR. THE CERTIFICATION SHALL RELY ON MEDICAL AND
SCIENTIFIC EVIDENCE TO SUPPORT THE REQUESTED HEALTH SERVICE OR PROCE-
DURE, IF SUCH EVIDENCE EXISTS, AND SHALL INCLUDE A STATEMENT THAT, BASED
ON THE PHYSICIAN'S CREDIBLE EXPERIENCE, THERE IS NO STANDARD TREATMENT
THAT IS LIKELY TO BE MORE CLINICALLY BENEFICIAL TO THE ENROLLEE THAN THE
REQUESTED HEALTH SERVICE OR PROCEDURE AND THE REQUESTED HEALTH SERVICE
OR PROCEDURE IS LIKELY TO BENEFIT THE ENROLLEE IN THE TREATMENT OF THE
ENROLLEE'S RARE DISEASE AND THAT SUCH BENEFIT TO THE ENROLLEE OUTWEIGHS
THE RISKS OF SUCH HEALTH SERVICE OR PROCEDURE. THE CERTIFYING PHYSICIAN
SHALL DISCLOSE ANY MATERIAL FINANCIAL OR PROFESSIONAL RELATIONSHIP WITH
THE PROVIDER OF THE REQUESTED HEALTH SERVICE OR PROCEDURE AS PART OF THE
APPLICATION FOR EXTERNAL APPEAL OF DENIAL OF A RARE DISEASE TREATMENT.
IF THE PROVISION OF THE REQUESTED HEALTH SERVICE OR PROCEDURE AT A
HEALTH CARE FACILITY REQUIRES PRIOR APPROVAL OF AN INSTITUTIONAL REVIEW
S. 201 19
BOARD, AN ENROLLEE OR ENROLLEE'S DESIGNEE SHALL ALSO SUBMIT SUCH
APPROVAL AS PART OF THE EXTERNAL APPEAL APPLICATION.
S 35. Subdivision 3 of section 4903 of the public health law, as added
by chapter 705 of the laws of 1996, is amended to read as follows:
3. A utilization review agent shall make a determination involving
continued or extended health care services, [or] additional services for
an enrollee undergoing a course of continued treatment prescribed by a
health care provider, OR HOME HEALTH CARE SERVICES FOLLOWING AN INPA-
TIENT HOSPITAL ADMISSION, and SHALL provide notice of such determination
to the enrollee or the enrollee's designee, which may be satisfied by
notice to the enrollee's health care provider, by telephone and in writ-
ing within one business day of receipt of the necessary information
EXCEPT, WITH RESPECT TO HOME HEALTH CARE SERVICES FOLLOWING AN INPATIENT
HOSPITAL ADMISSION, WITHIN SEVENTY-TWO HOURS OF RECEIPT OF THE NECESSARY
INFORMATION WHEN THE DAY SUBSEQUENT TO THE REQUEST FALLS ON A WEEKEND
OR HOLIDAY. Notification of continued or extended services shall
include the number of extended services approved, the new total of
approved services, the date of onset of services and the next review
date. PROVIDED THAT A REQUEST FOR HOME HEALTH CARE SERVICES AND ALL
NECESSARY INFORMATION IS SUBMITTED TO THE UTILIZATION REVIEW AGENT PRIOR
TO DISCHARGE FROM AN INPATIENT HOSPITAL ADMISSION PURSUANT TO THIS
SUBDIVISION, A UTILIZATION REVIEW AGENT SHALL NOT DENY, ON THE BASIS OF
MEDICAL NECESSITY OR LACK OF PRIOR AUTHORIZATION, COVERAGE FOR HOME
HEALTH CARE SERVICES WHILE A DETERMINATION BY THE UTILIZATION REVIEW
AGENT IS PENDING.
S 36. Subdivision 2 of section 4904 of the public health law, as added
by chapter 705 of the laws of 1996, paragraph (b) as amended by chapter
586 of the laws of 1998, is amended to read as follows:
2. A utilization review agent shall establish an expedited appeal
process for appeal of an adverse determination involving:
(a) continued or extended health care services, procedures or treat-
ments or additional services for an enrollee undergoing a course of
continued treatment prescribed by a health care provider HOME HEALTH
CARE SERVICES FOLLOWING DISCHARGE FROM AN INPATIENT HOSPITAL ADMISSION
PURSUANT TO SUBDIVISION THREE OF SECTION FORTY-NINE HUNDRED THREE OF
THIS ARTICLE; or
(b) an adverse determination in which the health care provider
believes an immediate appeal is warranted except any retrospective
determination. Such process shall include mechanisms which facilitate
resolution of the appeal including but not limited to the sharing of
information from the enrollee's health care provider and the utilization
review agent by telephonic means or by facsimile. The utilization review
agent shall provide reasonable access to its clinical peer reviewer
within one business day of receiving notice of the taking of an expe-
dited appeal. Expedited appeals shall be determined within two business
days of receipt of necessary information to conduct such appeal. Expe-
dited appeals which do not result in a resolution satisfactory to the
appealing party may be further appealed through the standard appeal
process, or through the external appeal process pursuant to section
forty-nine hundred fourteen of this article as applicable.
S 37. 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.
S. 201 20
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 AGREE TO AN ALTERNATIVE DISPUTE RESOLUTION MECHANISM TO RESOLVE
DISPUTES OTHERWISE SUBJECT TO THIS ARTICLE.
S 38. 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 39. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 2
of section 4910 of the public health law, as added by chapter 586 of the
laws of 1998, are amended to read as follows:
(ii) the enrollee's attending physician has certified that the enrol-
lee has a life-threatening or disabling condition or disease (a) for
which standard health services or procedures have been ineffective or
would be medically inappropriate, or (b) for which there does not exist
a more beneficial standard health service or procedure covered by the
health care plan, or (c) for which there exists a clinical trial OR RARE
DISEASE TREATMENT, and
(iii) the enrollee's attending physician, who must be a licensed,
board-certified or board-eligible physician qualified to practice in the
area of practice appropriate to treat the enrollee's life threatening or
disabling condition or disease, must have recommended either (a) a
health service or procedure (including a pharmaceutical product within
the meaning of subparagraph (B) of paragraph [b] (B) of subdivision five
of section forty-nine hundred of this article) that, based on two docu-
ments from the available medical and scientific evidence, is likely to
be more beneficial to the enrollee than any covered standard health
service or procedure OR, IN THE CASE OF A RARE DISEASE, BASED ON THE
PHYSICIAN'S CERTIFICATION REQUIRED BY SUBDIVISION SEVEN-G OF SECTION
FORTY-NINE HUNDRED OF THIS ARTICLE AND SUCH OTHER EVIDENCE AS THE ENROL-
LEE, THE ENROLLEE'S DESIGNEE OR THE ENROLLEE'S ATTENDING PHYSICIAN MAY
PRESENT, THAT THE REQUESTED HEALTH SERVICE OR PROCEDURE IS LIKELY TO
BENEFIT THE ENROLLEE IN THE TREATMENT OF THE ENROLLEE'S RARE DISEASE AND
THAT SUCH BENEFIT TO THE ENROLLEE OUTWEIGHS THE RISKS OF SUCH HEALTH
SERVICE OR PROCEDURE; or (b) a clinical trial for which the enrollee is
eligible. Any physician certification provided under this section shall
include a statement of the evidence relied upon by the physician in
certifying his or her recommendation, and
S 40. 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, THE ENROLLEE'S HEALTH CARE PROVIDER
WHERE APPROPRIATE, and the health care plan, in writing, of the appeal
determination within two business days of the rendering of such determi-
nation.
S. 201 21
(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, THE ENROLLEE'S HEALTH CARE PROVIDER WHERE APPROPRIATE, and
the health plan of its determination by telephone or facsimile, followed
immediately by written notification of such determination.
S 41. Item 1 of clause (ii) of subparagraph (B) of paragraph (d) of
subdivision 2 of section 4914 of the public health law, as added by
chapter 586 of the laws of 1998, is amended to read as follows:
(1) that the patient costs of the proposed health service or procedure
shall be covered by the health care plan either: when a majority of the
panel of reviewers determines, BASED upon review of the applicable
medical and scientific evidence AND, IN CONNECTION WITH RARE DISEASES,
THE PHYSICIAN'S CERTIFICATION REQUIRED BY SUBDIVISION SEVEN-G OF SECTION
FORTY-NINE HUNDRED OF THIS ARTICLE AND SUCH OTHER EVIDENCE AS THE ENROL-
LEE, THE ENROLLEE'S DESIGNEE OR THE ENROLLEE'S ATTENDING PHYSICIAN MAY
PRESENT (or upon confirmation that the recommended treatment is a clin-
ical trial), the enrollee's medical record, and any other pertinent
information, that the proposed health service or treatment (including a
pharmaceutical product within the meaning of subparagraph (B) of para-
graph (b) of subdivision five of section forty-nine hundred of this
article) is likely to be more beneficial than any standard treatment or
treatments for the enrollee's life-threatening or disabling condition or
disease OR, FOR RARE DISEASES, THAT THE REQUESTED HEALTH SERVICE OR
PROCEDURE IS LIKELY TO BENEFIT THE ENROLLEE IN THE TREATMENT OF THE
ENROLLEE'S RARE DISEASE AND THAT SUCH BENEFIT TO THE ENROLLEE OUTWEIGHS
THE RISKS OF SUCH HEALTH SERVICE OR PROCEDURE (or, in the case of a
clinical trial, is likely to benefit the enrollee in the treatment of
the enrollee's condition or disease); or when a reviewing panel is even-
ly divided as to a determination concerning coverage of the health
service or procedure, or
S 42. 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.
(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
S. 201 22
UPHOLDS THE HEALTH CARE PLAN'S DETERMINATION IN PART, PAYMENT FOR THE
EXTERNAL APPEAL SHALL BE EVENLY DIVIDED 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; PROVIDED, HOWEVER, THAT
THE COMMISSIONER MAY, UPON A DETERMINATION BY THE SUPERINTENDENT OF
INSURANCE THAT HEALTH CARE PLANS OR HEALTH CARE PROVIDERS ARE EXPERIENC-
ING 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, IN CONSULTATION WITH THE SUPERINTENDENT, PROMUL-
GATE REGULATIONS TO LIMIT SUCH HARDSHIP.
(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, IN WHICH CASE THE SUPERINTENDENT OF
INSURANCE SHALL MAKE AT LEAST TWO WRITTEN REQUESTS TO THE ENROLLEE TO
CONFIRM THE DESIGNATION. THE ENROLLEE SHALL HAVE TWO WEEKS TO RESPOND TO
EACH SUCH REQUEST. IF THE ENROLLEE FAILS TO RESPOND TO THE SUPERINTEN-
DENT OF INSURANCE WITHIN THE SPECIFIED TIMEFRAME, THE SUPERINTENDENT OF
INSURANCE SHALL 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 SUPERINTENDENT OF INSURANCE
REQUESTS WITHIN THE SPECIFIED TIMEFRAME, THE SUPERINTENDENT OF INSURANCE
SHALL REJECT THE APPEAL. IF THE HEALTH CARE PROVIDER RESPONDS TO THE
SUPERINTENDENT'S REQUESTS, PAYMENT FOR THE EXTERNAL APPEAL SHALL BE MADE
IN ACCORDANCE WITH PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION.
S 43. 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 FOR SERVICES DETERMINED
NOT MEDICALLY NECESSARY BY THE EXTERNAL APPEAL AGENT, EXCEPT TO COLLECT
A COPAYMENT.
S 44. Subdivision 2 of section 20 of chapter 451 of the laws of 2007,
amending the public health law, the social services law and the insur-
ance law relating to providing enhanced consumer and provider
protections, is amended to read as follows:
2. sections two, three and twelve of this act shall take effect on
January 1, 2008; provided, however, that subparagraph (iii) of paragraph
(1) of subsection (a) of section 3238 of the insurance law as added in
section twelve of this act shall expire and be deemed repealed December
31, [2009] 2011;
S 45. Intentionally omitted.
S 46. Intentionally omitted.
S 47. Intentionally omitted.
S 48. This act shall take effect January 1, 2010; provided, however,
that:
1. sections twenty and thirty-three of this act shall take effect
October 1, 2009, and shall apply to applications submitted after that
S. 201 23
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;
2. provided, further, that the amendments to subsection (i) of section
3217-b of the insurance law made by section three of this act shall not
affect the repeal of such subsection and shall be deemed repealed there-
with;
3. provided, further, that the amendments to subsection (i) of section
4325 of the insurance law made by section nineteen 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 subdivision 5-d of
section 4406-c of the public health law made by section thirty-two of
this act shall not affect the repeal of such subdivision and shall be
deemed repealed therewith;
5. provided further that sections eight and forty-four of this act
shall take effect immediately;
6. provided further that section nine of this act shall apply to dates
of service on or after April 1, 2010; and
7. provided further that sections two, four, five, fifteen, sixteen
and seventeen of this act shall take effect January 1, 2011.
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