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

                                  5590

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 23, 2011
                               ___________

Introduced  by  M.  of A. BRENNAN, SCARBOROUGH, JAFFEE, BARRON -- Multi-
  Sponsored by -- M. of A.  PHEFFER -- read once  and  referred  to  the
  Committee on Insurance

AN ACT to amend the insurance law and the public health law, in relation
  to physical therapy services and utilization practices

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

  Section 1. Paragraph 23 of subsection  (i)  of  section  3216  of  the
insurance  law,  as added by chapter 593 of the laws of 2000, is amended
to read as follows:
  (23) If a policy provides for reimbursement for physical  and  occupa-
tional therapy service which is within the lawful scope of practice of a
duly  licensed  physical  or occupational therapist, an insured shall be
entitled to reimbursement for such service whether the said  service  is
performed  by a physician or through a duly licensed physical or occupa-
tional therapist, provided however, that nothing contained herein  shall
be  construed  to  impair any terms of such policy including appropriate
utilization review and the requirement that said  service  be  performed
pursuant to a medical order, or a similar or related service of a physi-
cian  PROVIDED  THAT  SUCH TERMS SHALL NOT IMPOSE DIFFERENT DEDUCTIBLES,
CO-PAYMENTS OR CO-INSURANCE AMOUNTS ON THE BASIS OF THE SETTING IN WHICH
SUCH PHYSICAL THERAPY SERVICES ARE RENDERED OR WHETHER THE SERVICES  ARE
PERFORMED BY A PHYSICAL THERAPIST OR PHYSICIAN.
  S 2. Subparagraph (A) of paragraph 1 of subsection (f) of section 4235
of  the insurance law, as amended by chapter 240 of the laws of 2009, is
amended to read as follows:
  (A) Any policy of group accident, group health or group  accident  and
health  insurance  may include provisions for the payment by the insurer
of benefits for expenses incurred on account  of  hospital,  medical  or
surgical  care or physical and occupational therapy by licensed physical
and occupational therapists upon  the  prescription  or  referral  of  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08070-01-1
              

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physician  for  the  employee  or other member of the insured group, his
spouse, his child or children, or other persons chiefly  dependent  upon
him  for  support  and  maintenance;  provided that a policy under which
coverage  of  a  dependent of an employee or other member of the insured
group terminates at a specified age shall not so terminate with  respect
to  an unmarried child who is incapable of self-sustaining employment by
reason of mental illness, developmental disability, mental  retardation,
as  defined  in  the  mental  hygiene  law, or physical handicap and who
became so incapable prior to attainment of the age  at  which  dependent
coverage  would  otherwise  terminate  and who is chiefly dependent upon
such employee or member for support and maintenance, while the insurance
of the employee or member remains in force and the dependent remains  in
such  condition, if the insured employee or member has within thirty-one
days of such dependent's attainment of  the  termination  age  submitted
proof  of such dependent's incapacity as described herein.  NO POLICY OF
GROUP ACCIDENT, GROUP HEALTH OR  GROUP  ACCIDENT  AND  HEALTH  INSURANCE
SHALL  IMPOSE DIFFERENT DEDUCTIBLES, CO-PAYMENTS OR CO-INSURANCE AMOUNTS
ON THE BASIS OF THE SETTING IN WHICH SUCH PHYSICAL THERAPY SERVICES  ARE
RENDERED  OR  WHETHER THE SERVICES ARE PERFORMED BY A PHYSICAL THERAPIST
OR PHYSICIAN.
  S 3. Subparagraph (A) of paragraph 4 of subsection (f) of section 4235
of the insurance law, as amended by chapter 593 of the laws of 2000,  is
amended to read as follows:
  (A)  any physical and occupational therapy service which is within the
lawful scope of practice of a licensed physical and occupational  thera-
pist, a subscriber to such policy shall be entitled to reimbursement for
such  service,  whether  the said service is performed by a physician or
licensed physical and occupational therapist pursuant to prescription or
referral by a physician; AND A POLICY OF GROUP ACCIDENT, GROUP HEALTH OR
GROUP ACCIDENT AND HEALTH INSURANCE SHALL NOT IMPOSE  DIFFERENT  DEDUCT-
IBLES,  CO-PAYMENTS  OR CO-INSURANCE AMOUNTS ON THE BASIS OF THE SETTING
IN WHICH SUCH PHYSICAL THERAPY SERVICES  ARE  RENDERED  OR  WHETHER  THE
SERVICES ARE PERFORMED BY A PHYSICAL THERAPIST OR PHYSICIAN.
  S 4. Subparagraph (G) of paragraph 1 of subsection (b) of section 4301
of  the insurance law, as amended by chapter 593 of the laws of 2000, is
amended to read as follows:
  (G) physical and occupational therapy care provided  through  licensed
physical  and  occupational therapists upon the prescription of a physi-
cian AND ANY CO-PAYMENTS, DEDUCTIBLES, OR CO-INSURANCE  AMOUNTS  RELATED
TO  REIMBURSEMENT  FOR PHYSICAL THERAPY SERVICES SHALL NOT DIFFER ON THE
BASIS OF THE  SETTING  IN  WHICH  SUCH  PHYSICAL  THERAPY  SERVICES  ARE
RENDERED  OR  WHETHER THE SERVICES ARE PERFORMED BY A PHYSICAL THERAPIST
OR PHYSICIAN,
  S 5. Paragraph 13 of subsection (b) of section 4322 of  the  insurance
law,  as added by chapter 504 of the laws of 1995, is amended to read as
follows:
  (13) Outpatient physical therapy up to ninety visits per condition per
calendar year AND ANY CO-PAYMENTS, DEDUCTIBLES OR  CO-INSURANCE  AMOUNTS
RELATED  TO  REIMBURSEMENT OF PHYSICAL THERAPY SERVICES SHALL NOT DIFFER
ON THE BASIS OF THE SETTING IN WHICH SUCH PHYSICAL THERAPY SERVICES  ARE
RENDERED  OR  WHETHER THE SERVICES ARE PERFORMED BY A PHYSICAL THERAPIST
OR PHYSICIAN.
  S 6. The opening paragraph of subdivision 4 of  section  4905  of  the
public  health  law,  as  added  by  chapter 705 of the laws of 1996, is
amended to read as follows:

A. 5590                             3

  A utilization review agent OR THE HEALTH CARE PLAN FOR WHICH THE AGENT
PROVIDES UTILIZATION REVIEW  shall  not,  with  respect  to  utilization
review  activities,  permit or provide compensation or anything of value
to its employees, agents, or contractors based on:
  S  7.  The  opening paragraph of subsection (d) of section 4905 of the
insurance law, as added by chapter 705 of the laws of 1996,  is  amended
to read as follows:
  A utilization review agent OR THE HEALTH CARE PLAN FOR WHICH THE AGENT
PROVIDES  UTILIZATION  REVIEW  shall  not,  with  respect to utilization
review activities, permit or provide compensation or anything  of  value
to its employees, agents, or contractors based on:
  S  8.  Subdivision  5  of  section 4406-d of the public health law, as
added by chapter 705 of the laws of 1996, is amended to read as follows:
  5. No health care plan shall terminate, OR  THREATEN  TO  TERMINATE  a
contract  or  employment,  [or]  refuse to renew, OR THREATEN REFUSAL TO
RENEW a contract, [solely] because a health care provider has:
  (a) advocated on behalf of an enrollee;
  (b) filed a complaint against the health care plan;
  (c) appealed a decision of the health care plan;
  (d) provided information or filed a report pursuant to section  forty-
four hundred six-c of this article; [or]
  (e) requested a hearing or review pursuant to this section; OR
  (F) ORDERED OR RENDERED MEDICALLY NECESSARY CARE.
  S  9. Subsection (e) of section 4803 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:
  (e) No insurer shall terminate [or], THREATEN TO TERMINATE, refuse  to
renew  OR  THREATEN REFUSAL TO RENEW a contract for participation in the
in-network benefits portion of an insurer's network for a  managed  care
product  [solely] because the health care professional has (1) advocated
on behalf of an insured; (2) has filed a complaint against the  insurer;
(3)  has appealed a decision of the insurer; (4) provided information or
filed a report pursuant to  section  forty-four  hundred  six-c  of  the
public  health  law;  [or] (5) requested a hearing or review pursuant to
this section; OR (6) ORDERED OR RENDERED MEDICALLY NECESSARY CARE.
  S 10. Paragraph (d) of subdivision 1 of section  4902  of  the  public
health  law,  as added by chapter 705 of the laws of 1996, is amended to
read as follows:
  (d) Establishment of a process for rendering utilization review deter-
minations which shall, at a  minimum,  include:  written  procedures  to
assure  that utilization reviews and determinations are conducted within
the timeframes established herein; procedures to notify an enrollee,  an
enrollee's  designee  [and/or] AND an enrollee's health care provider of
adverse determinations; and procedures for appeal  of  adverse  determi-
nations  including the establishment of an expedited appeals process for
denials of continued inpatient care or where there is imminent or  seri-
ous threat to the health of the enrollee;
  S  11.  Paragraph 4 of subsection (a) of section 4902 of the insurance
law, as added by chapter 705 of the laws of 1996, is amended to read  as
follows:
  (4) Establishment of a process for rendering utilization review deter-
minations  which  shall,  at  a  minimum, include: written procedures to
assure that utilization reviews and determinations are conducted  within
the  timeframes  established herein; procedures to notify an insured, an
insured's designee [and/or] AND an insured's  health  care  provider  of
adverse  determinations;  and  procedures for appeal of adverse determi-
nations including the establishment of an expedited appeals process  for

A. 5590                             4

denials  of continued inpatient care or where there is imminent or seri-
ous threat to the health of the insured;
  S  12.  Paragraph  (a)  of subdivision 2 of section 4901 of the public
health law, as added by chapter 705 of the laws of 1996, is  amended  to
read as follows:
  (a)  The  utilization  review  plan,  INCLUDING BUT NOT LIMITED TO THE
CLINICAL REVIEW CRITERIA AND STANDARDS AND THE  DEFINITION/STANDARDS  OF
MEDICAL  NECESSITY USED UNDER THE UTILIZATION REVIEW PLAN. A UTILIZATION
REVIEW AGENT SHALL REPORT ANY AMENDMENT OR CHANGES  TO  THE  UTILIZATION
REVIEW PLAN TO THE COMMISSIONER WITHIN THIRTY DAYS OF MAKING SUCH AMEND-
MENT OR CHANGE;
  S  13.  Paragraph 1 of subsection (b) of section 4901 of the insurance
law, as added by chapter 705 of the laws of 1996, is amended to read  as
follows:
  (1)  The  utilization  review  plan,  INCLUDING BUT NOT LIMITED TO THE
CLINICAL REVIEW CRITERIA AND STANDARDS AND THE  DEFINITION/STANDARDS  OF
MEDICAL  NECESSITY USED UNDER THE UTILIZATION REVIEW PLAN. A UTILIZATION
REVIEW AGENT SHALL REPORT ANY AMENDMENT OR CHANGES  TO  THE  UTILIZATION
REVIEW  PLAN  TO  THE  SUPERINTENDENT  WITHIN THIRTY DAYS OF MAKING SUCH
AMENDMENT OR CHANGE;
  S 14. Section 4406-d of the public health law is amended by  adding  a
new subdivision 1-a to read as follows:
  1-A. UPON WRITTEN REQUEST BY A PARTICIPATING HEALTH CARE PROFESSIONAL,
A HEALTH CARE PLAN SHALL PROVIDE SPECIFIC WRITTEN CLINICAL REVIEW CRITE-
RIA  RELATING  TO  A PARTICULAR CONDITION, DISEASE, SERVICE OR PROCEDURE
AND, WHERE APPROPRIATE, OTHER CLINICAL INFORMATION WHICH THE HEALTH CARE
PLAN OR ITS UTILIZATION REVIEW AGENT MIGHT CONSIDER IN  ITS  UTILIZATION
REVIEW  AND  THE  HEALTH  CARE PLAN SHALL INCLUDE WITH THE INFORMATION A
DESCRIPTION OF HOW IT WILL BE USED IN THE  UTILIZATION  REVIEW  PROCESS;
PROVIDED, HOWEVER, THAT TO THE EXTENT SUCH INFORMATION IS PROPRIETARY TO
THE HEALTH CARE PLAN, THE PARTICIPATING HEALTH CARE PROVIDER OR PROSPEC-
TIVE  HEALTH  CARE  PROVIDER  SHALL  ONLY  USE  THE  INFORMATION FOR THE
PURPOSES OF ASSISTING THE PARTICIPATING HEALTH CARE PROVIDER IN EVALUAT-
ING COVERED SERVICES PROVIDED BY THE ORGANIZATION, AN  ADVERSE  DETERMI-
NATION OR AN APPEAL OF ADVERSE DETERMINATION.
  S  15.  Section  4803  of the insurance law is amended by adding a new
subsection (a-1) to read as follows:
  (A-1) UPON WRITTEN REQUEST BY  A  PARTICIPATING  HEALTH  CARE  PROFES-
SIONAL,  A  HEALTH  CARE  PLAN  SHALL  PROVIDE SPECIFIC WRITTEN CLINICAL
REVIEW CRITERIA RELATING TO A PARTICULAR CONDITION, DISEASE, SERVICE  OR
PROCEDURE  AND,  WHERE APPROPRIATE, OTHER CLINICAL INFORMATION WHICH THE
HEALTH CARE PLAN OR ITS UTILIZATION REVIEW AGENT MIGHT CONSIDER  IN  ITS
UTILIZATION  REVIEW  AND  THE  HEALTH  CARE  PLAN SHALL INCLUDE WITH THE
INFORMATION A DESCRIPTION OF HOW IT WILL  BE  USED  IN  THE  UTILIZATION
REVIEW  PROCESS;  PROVIDED, HOWEVER, THAT TO THE EXTENT SUCH INFORMATION
IS PROPRIETARY TO THE HEALTH CARE PLAN, THE  PARTICIPATING  HEALTH  CARE
PROVIDER OR PROSPECTIVE HEALTH CARE PROVIDER SHALL ONLY USE THE INFORMA-
TION FOR THE PURPOSES OF ASSISTING THE PARTICIPATING HEALTH CARE PROVID-
ER  IN  EVALUATING  COVERED  SERVICES  PROVIDED  BY THE ORGANIZATION, AN
ADVERSE DETERMINATION OR AN APPEAL OF ADVERSE DETERMINATION.
  S 16. Section 4406-c of the public health law is amended by  adding  a
new subdivision 5-e to read as follows:
  5-E.  NO HEALTH CARE PLAN SHALL BY CONTRACT, WRITTEN POLICY OR WRITTEN
PROCEDURE REFUSE TO HONOR, PROHIBIT OR IN ANY WAY RESTRICT  THE  ABILITY
OF  AN  ENROLLEE  TO  ASSIGN  HIS OR HER BENEFITS ALLOWABLE OR OTHERWISE
PAYABLE TO THE ENROLLEE AS PAYMENT FOR PROFESSIONAL SERVICES RENDERED.

A. 5590                             5

  S 17. The insurance law is amended by adding a new section  4803-a  to
read as follows:
  S  4803-A.  PROHIBITIONS. 1. NO MANAGED CARE HEALTH INSURANCE CONTRACT
OR MANAGED CARE PRODUCT SHALL BY CONTRACT,  WRITTEN  POLICY  OR  WRITTEN
PROCEDURE  REFUSE  TO HONOR, PROHIBIT OR IN ANY WAY RESTRICT THE ABILITY
OF AN ENROLLEE TO ASSIGN HIS OR  HER  BENEFITS  ALLOWABLE  OR  OTHERWISE
PAYABLE TO THE ENROLLEE AS PAYMENT FOR PROFESSIONAL SERVICES RENDERED.
  2.  ANY  CONTRACT  PROVISION,  WRITTEN  POLICY OR WRITTEN PROCEDURE IN
VIOLATION OF THIS SECTION SHALL BE DEEMED TO BE VOID AND UNENFORCEABLE.
  S 18. Section 4905 of the public health law is amended by adding a new
subdivision 16 to read as follows:
  16. A HEALTH CARE PLAN SHALL PROVIDE NOTICE TO PARTICIPATING PROVIDERS
SIXTY DAYS IN ADVANCE OF A CHANGE IN UTILIZATION REVIEW AGENTS.
  S 19. Section 4905 of the insurance law is amended  by  adding  a  new
subsection (p) to read as follows:
  (P) A HEALTH CARE PLAN SHALL PROVIDE NOTICE TO PARTICIPATING PROVIDERS
SIXTY DAYS IN ADVANCE OF A CHANGE IN UTILIZATION REVIEW AGENTS.
  S  20.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law.