senate Bill S3186A

2011-2012 Legislative Session

Enacts the health care consumer and provider protection act relating to collective negotiations by health care providers with certain health care plans

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 11, 2012 reported and committed to rules
Jan 04, 2012 referred to health
returned to senate
died in assembly
Jun 23, 2011 referred to ways and means
Jun 22, 2011 delivered to assembly
passed senate
Jun 21, 2011 ordered to third reading cal.1456
committee discharged and committed to rules
Jun 07, 2011 reported and committed to finance
May 31, 2011 print number 3186a
amend and recommit to health
Feb 11, 2011 referred to health

Votes

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Jun 11, 2012 - Health committee Vote

S3186A
14
0
committee
14
Aye
0
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Jun 21, 2011 - Rules committee Vote

S3186A
18
3
committee
18
Aye
3
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Rules committee vote details

Jun 7, 2011 - Health committee Vote

S3186A
12
0
committee
12
Aye
0
Nay
5
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Health committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

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S3186 - Bill Details

Current Committee:
Senate Rules
Law Section:
Public Health Law
Laws Affected:
Add Art 49 Title III §§4920 - 4929, Pub Health L
Versions Introduced in 2009-2010 Legislative Session:
S2886

S3186 - Bill Texts

view summary

Enacts provisions relating to collective negotiations by health care providers with certain health care plans; applies to health benefit plans that provide benefits for medical or surgical expenses incurred as a result of a health condition, accident or sickness, including an individual, group, blanket or franchise insurance policy or insurance agreement offered by certain enumerated entities.

view sponsor memo
BILL NUMBER:S3186

TITLE OF BILL:
An act
to amend the public health law, in relation to requirements for
collective negotiations by health care providers with certain health
benefit plans

PURPOSE:
This bill is designed to restore fairness in
the contracting
process between health care providers and large managed care plans by
allowing such providers to join together to negotiate contract
provisions. This legislation would not authorize strikes of health
benefit plans by health care providers.

SUMMARY OF BILL:
Section 1 is a statement of
legislative intent that
states that the legislature finds it appropriate and necessary to
authorize collective negotiations on patient care issues and on
fee-related and other issues where it determines that health plans
have an undue advantage negotiating the terms of contracts with
health care providers. The legislative intent clarifies that the act
is not intended to apply or affect collective bargaining
relationships involving health care providers who are employees or
rights relating to collective bargaining arising under applicable
federal/state collective bargaining statutes.

Section 2 cites the bill as the Health Care Consumer and Provider
Protection Act

Section 3 amends article 49 to the public health law by adding a new
title III titled Collective Negotiations by Health Care Providers
with Health Care Plans

This legislation adds a new Title III to Article
49 to the public health law to
authorize collective bargaining for independent contractor health
care providers including physicians. This bill would create a system
under which the state would closely monitor those negotiations, and
any negotiations involving fee-related matters would only be
permitted when an individual managed care plan controls a substantial
share of the managed care market. The Attorney General would be
authorized to approve the health care providers' representative
request to negotiate based upon the benefits to be achieved for
providers and consumers of health services, and is required to review
any offer submitted to the health care providers' representative
prior to sharing with affected health care providers. The legislation
would also create a mechanism for resolving disputes when there is
art impasse or when the health plan refuses to negotiate. The bill

would also direct the Attorney General to approve any final agreement
as well as monitor the implemented agreements to ensure continued
compliance with the law. Importantly, this legislation would not
authorize strikes or concerted action by health care providers in
response to negotiations with health care plans.

Section 4. This act shall take effect 120 days after it shall have
become a law, provided that the department of health may promulgate
and establish any regulations pursuant hereto prior to the effective
date.

JUSTIFICATION:
Currently, federal antitrust laws
prohibit individual
health care providers from collectively negotiating any provisions of
contracts they sign with managed care entities.
This bill would allow health care providers in New York State to
conduct some collective negotiations by creating a system under which
the state would closely monitor those negotiations, facilitate
resolution of negotiation impasses, and actively monitor
implementation of agreements. Negotiations involving fee-related
matters would be prohibited unless an individual managed care plan
controls a substantial share of the managed care market.

Giving health care providers greater ability to advocate for patients
in contract negotiations is critical since large health maintenance
organizations control huge shares of the health insurance
market, both in New York and across the country. In the last few years
we have seen the mergers of United Healthcare and Oxford, MVP and
Preferred Care, and Wellpoint with Wellchoice (Empire). As of March
2008, almost 75% of the enrollees in managed care plans in New York
State were enrolled in just five health plans (GHI/HIP,
United/Oxford/Amerchoice, Excellus, Empire and MVP/Preferred Care).
We have also seen an emerging trend of long-time not-for-profit
health insurance companies such as Empire and HIP seeking to convert
to for profit status.

Due to the current imbalance of negotiating power in favor of the
managed care plans, physicians and other health care providers are
offered take-it-or-leave-it contracts by health plans that
significantly hamper their ability to provide quality patient care.
These contracts permit burdensome processes and unjustifiably long
wait times for obtaining pre-authorization to provide needed patient
care; impose limitations on whom a physician or other health care
provider may refer a patient for necessary care; permit demands for
refunds of payments long after the time that such payments were
originally made; permit health plans to make major changes to key
elements of a contract without physician or other health care
provider consent;
and cede to physicians and other health care providers the legal
consequences for patients harmed by health plan utilization review
decisions.

This bill, by allowing independent contractor physicians and health
care providers to conduct some collective negotiations while being
closely monitored by the state, would give physicians and health care
providers greater ability to advocate for patients in contract
negotiations. This bill would create a system under which the state
would closely monitor those negotiations, and any negotiations
involving fee-related matters would only be permitted when an
individual managed care plan controls a substantial share of the
managed care market. This legislation would not authorize strikes or
boycotts of health benefit plans by physicians.

LEGISLATIVE HISTORY:
2009-2010: A.4301-B/S.5204-A Reported to Ways & Means
2007-2008: A.2177 Reported to Ways & Means
2005-2006: A.6458 Reported to Ways & Means
2003-2004: A.1317-A Reported to Ways & Means
2001-2002: A.5466/S.3569 Reported to Third Reading Calendar
2000: A.9484-A/S.7541-A Referred to Health/Senate Finance

FISCAL IMPLICATIONS:
None to the State. The bill would provide the
legal basis for an appropriation of funds to implement the provisions
of the bill.

EFFECTIVE DATE:
120 days after it shall have become a law, provided
that the department of health may promulgate and establish any
regulations pursuant hereto prior to the effective date.

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

                                  3186

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation to  requirements  for
  collective  negotiations  by health care providers with certain health
  benefit plans

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

  Section 1. Statement of legislative intent. The legislature finds that
collective  negotiation by competing health care providers for the terms
and conditions of contracts with health plans can result  in  beneficial
results  for  health  care  consumers.  The  legislature  further  finds
instances where health plans dominate the market to such a  degree  that
fair  and  adequate  negotiations  between health care providers and the
plans are adversely affected, so that it is necessary and appropriate to
provide for a system of collective  action  on  behalf  of  health  care
providers. Consequently, the legislature finds it appropriate and neces-
sary to authorize collective negotiations on the terms and conditions of
the  relationship between health care plans and health care providers so
the imbalances between the two will not result in adverse conditions  of
health  care.  This  act  is  not  intended to apply to or affect in any
respect  collective  bargaining  relationships  involving  health   care
providers  as defined in section 4920 of the public health law or rights
relating to collective bargaining arising under  applicable  federal  or
state collective bargaining statutes.
  S  2.  This  act  shall  be known and may be cited as the "health care
providers collective negotiations act".
  S 3. Article 49 of the public health law is amended by  adding  a  new
title III to read as follows:
                                TITLE III
                 COLLECTIVE NEGOTIATIONS BY HEALTH CARE
                    PROVIDERS WITH HEALTH CARE PLANS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02375-01-1

S. 3186                             2

SECTION 4920. DEFINITIONS.
        4921. COLLECTIVE NEGOTIATION AUTHORIZED.
        4922. LIMITATIONS ON COLLECTIVE NEGOTIATION.
        4923. COLLECTIVE NEGOTIATION REQUIREMENTS.
        4924. REQUIREMENTS FOR HEALTH CARE PROVIDERS' REPRESENTATIVE.
        4925. CERTAIN COLLECTIVE ACTION PROHIBITED.
        4926. FEES.
        4927. CONFIDENTIALITY.
        4928. SEVERABILITY AND CONSTRUCTION.
  S 4920. DEFINITIONS. FOR PURPOSES OF THIS TITLE:
  1.  "HEALTH  CARE  PLAN"  MEANS  AN  ENTITY  (OTHER THAN A HEALTH CARE
PROVIDER) THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH CARE
SERVICES, INCLUDING BUT NOT LIMITED TO:
  (A) A HEALTH MAINTENANCE ORGANIZATION  LICENSED  PURSUANT  TO  ARTICLE
FORTY-THREE  OF  THE  INSURANCE  LAW  OR  CERTIFIED  PURSUANT TO ARTICLE
FORTY-FOUR OF THIS CHAPTER;
  (B) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF
THIS CHAPTER; OR
  (C) AN INSURER OR CORPORATION SUBJECT TO THE INSURANCE LAW.
  2. "PERSON" MEANS AN  INDIVIDUAL,  ASSOCIATION,  CORPORATION,  OR  ANY
OTHER LEGAL ENTITY.
  3.  "HEALTH CARE PROVIDERS' REPRESENTATIVE" MEANS A THIRD PARTY WHO IS
AUTHORIZED BY HEALTH CARE PROVIDERS TO NEGOTIATE ON  THEIR  BEHALF  WITH
HEALTH  CARE PLANS OVER CONTRACTUAL TERMS AND CONDITIONS AFFECTING THOSE
HEALTH CARE PROVIDERS.
  4. "STRIKE" MEANS A WORK STOPPAGE IN PART OR IN WHOLE, DIRECT OR INDI-
RECT, BY A BODY OF WORKERS TO GAIN COMPLIANCE WITH DEMANDS  MADE  ON  AN
EMPLOYER.
  5.  "SUBSTANTIAL  MARKET  POWER IN A BUSINESS LINE" EXISTS IF A HEALTH
CARE PLAN'S MARKET SHARE OF A BUSINESS LINE WITHIN  A  SERVICE  AREA  AS
APPROVED  BY  THE  COMMISSIONER, ALONE OR IN COMBINATION WITH THE MARKET
SHARES OF AFFILIATES, EXCEEDS EITHER TEN PERCENT OF THE TOTAL NUMBER  OF
COVERED LIVES IN THAT SERVICE AREA FOR SUCH BUSINESS LINE OR TWENTY-FIVE
THOUSAND  LIVES,  OR  IF THE COMMISSIONER DETERMINES THE MARKET POWER OF
THE INSURER IN THE RELEVANT INSURANCE PRODUCT AND GEOGRAPHIC MARKETS FOR
THE SERVICES OF THE PROVIDERS SEEKING TO COLLECTIVELY NEGOTIATE  SIGNIF-
ICANTLY  EXCEEDS THE COUNTERVAILING MARKET POWER OF THE PROVIDERS ACTING
INDIVIDUALLY.
  6. "HEALTH CARE PROVIDER" MEANS A PERSON WHO IS  LICENSED,  CERTIFIED,
OR REGISTERED PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW AND WHO PRAC-
TICES  AS A HEALTH CARE PROVIDER AS AN INDEPENDENT CONTRACTOR AND/OR WHO
IS AN OWNER, OFFICER,  SHAREHOLDER,  OR  PROPRIETOR  OF  A  HEALTH  CARE
PROVIDER.  A HEALTH CARE PROVIDER UNDER TITLE EIGHT OF THE EDUCATION LAW
WHO PRACTICES AS AN EMPLOYEE OF A HEALTH  CARE  PROVIDER  SHALL  NOT  BE
DEEMED A HEALTH CARE PROVIDER FOR PURPOSES OF THIS TITLE.
  S  4921.  COLLECTIVE  NEGOTIATION AUTHORIZED. 1. HEALTH CARE PROVIDERS
PRACTICING WITHIN THE SERVICE AREA OF A HEALTH CARE PLAN  MAY  MEET  AND
COMMUNICATE  FOR  THE  PURPOSE OF COLLECTIVELY NEGOTIATING THE FOLLOWING
TERMS AND CONDITIONS OF PROVIDER CONTRACTS WITH THE HEALTH CARE PLAN:
  (A) THE DETAILS OF THE UTILIZATION REVIEW PLAN AS DEFINED PURSUANT  TO
SUBDIVISION TEN OF SECTION FORTY-NINE HUNDRED OF THIS ARTICLE;
  (B)  COVERAGE  PROVISIONS;  HEALTH  CARE  BENEFITS;  BENEFIT MAXIMUMS,
INCLUDING BENEFIT LIMITATIONS; AND EXCLUSIONS OF COVERAGE;
  (C) THE DEFINITION OF MEDICAL NECESSITY;
  (D) THE CLINICAL PRACTICE GUIDELINES USED TO  MAKE  MEDICAL  NECESSITY
AND UTILIZATION REVIEW DETERMINATIONS;

S. 3186                             3

  (E) PREVENTIVE CARE AND OTHER MEDICAL MANAGEMENT PRACTICES;
  (F)  DRUG  FORMULARIES  AND  STANDARDS  AND PROCEDURES FOR PRESCRIBING
OFF-FORMULARY DRUGS;
  (G) RESPECTIVE PHYSICIAN LIABILITY FOR THE TREATMENT OR LACK OF TREAT-
MENT OF COVERED PERSONS;
  (H) THE DETAILS OF HEALTH CARE PLAN RISK  TRANSFER  ARRANGEMENTS  WITH
PROVIDERS;
  (I)  PLAN  ADMINISTRATIVE  PROCEDURES, INCLUDING METHODS AND TIMING OF
HEALTH CARE PROVIDER PAYMENT FOR SERVICES PURSUANT TO SECTION FORTY-FOUR
HUNDRED SIX-C OF THIS CHAPTER;
  (J) PROCEDURES TO BE UTILIZED TO RESOLVE DISPUTES BETWEEN  THE  HEALTH
CARE PLAN AND HEALTH CARE PROVIDERS;
  (K)  PATIENT  REFERRAL PROCEDURES INCLUDING, BUT NOT LIMITED TO, THOSE
APPLICABLE TO OUT-OF-POCKET NETWORK REFERRALS;
  (L) THE FORMULATION AND APPLICATION OF HEALTH CARE PROVIDER REIMBURSE-
MENT PROCEDURES;
  (M) QUALITY ASSURANCE PROGRAMS;
  (N)  THE  PROCESS  FOR  RENDERING  UTILIZATION  REVIEW  DETERMINATIONS
INCLUDING:  ESTABLISHMENT  OF A PROCESS FOR RENDERING UTILIZATION REVIEW
DETERMINATIONS WHICH SHALL, AT A MINIMUM, INCLUDE: WRITTEN PROCEDURES TO
ASSURE THAT UTILIZATION REVIEWS AND DETERMINATIONS ARE CONDUCTED  WITHIN
THE  TIMEFRAMES  ESTABLISHED  IN  THIS  ARTICLE; PROCEDURES TO NOTIFY AN
ENROLLEE, AN  ENROLLEE'S  DESIGNEE  AND/OR  AN  ENROLLEE'S  HEALTH  CARE
PROVIDER OF ADVERSE DETERMINATIONS; AND PROCEDURES FOR APPEAL OF ADVERSE
DETERMINATIONS,  INCLUDING  THE  ESTABLISHMENT  OF  AN EXPEDITED APPEALS
PROCESS FOR DENIALS OF CONTINUED INPATIENT CARE OR WHERE THERE IS  IMMI-
NENT OR SERIOUS THREAT TO THE HEALTH OF THE ENROLLEE; AND
  (O)  HEALTH  CARE  PROVIDER SELECTION AND TERMINATION CRITERIA USED BY
THE HEALTH CARE PLAN.
  2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE AN
ALTERATION OF THE TERMS OF THE INTERNAL AND EXTERNAL  REVIEW  PROCEDURES
SET FORTH IN LAW.
  3.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO ALLOW A STRIKE OF A
HEALTH CARE PLAN BY HEALTH CARE PROVIDERS  OR  PLANS  AS  OTHERWISE  SET
FORTH IN THE LAWS OF THIS STATE.
  4.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE
TERMS OR CONDITIONS WHICH WOULD IMPEDE THE ABILITY OF A HEALTH CARE PLAN
TO OBTAIN OR RETAIN ACCREDITATION BY THE NATIONAL COMMITTEE FOR  QUALITY
ASSURANCE OR A SIMILAR BODY.
  S  4922.  LIMITATIONS ON COLLECTIVE NEGOTIATION. 1. IF THE HEALTH CARE
PLAN HAS SUBSTANTIAL MARKET POWER IN A  BUSINESS  LINE  IN  ANY  SERVICE
AREA,  HEALTH  CARE  PROVIDERS  PRACTICING  WITHIN THAT SERVICE AREA MAY
COLLECTIVELY NEGOTIATE THE FOLLOWING TERMS AND  CONDITIONS  RELATING  TO
THAT BUSINESS LINE WITH THE HEALTH CARE PLAN:
  (A)  THE FEES ASSESSED BY THE HEALTH CARE PLAN FOR SERVICES, INCLUDING
FEES ESTABLISHED THROUGH THE APPLICATION OF REIMBURSEMENT PROCEDURES;
  (B) THE  CONVERSION  FACTORS  USED  BY  THE  HEALTH  CARE  PLAN  IN  A
RESOURCE-BASED  RELATIVE  VALUE SCALE REIMBURSEMENT METHODOLOGY OR OTHER
SIMILAR METHODOLOGY; PROVIDED THE SAME ARE NOT OTHERWISE ESTABLISHED  BY
STATE OR FEDERAL LAW OR REGULATION;
  (C)  THE AMOUNT OF ANY DISCOUNT GRANTED BY THE HEALTH CARE PLAN ON THE
FEE OF HEALTH CARE SERVICES TO BE RENDERED BY HEALTH CARE PROVIDERS;
  (D) THE DOLLAR AMOUNT  OF  CAPITATION  OR  FIXED  PAYMENT  FOR  HEALTH
SERVICES  RENDERED  BY  HEALTH CARE PROVIDERS TO HEALTH CARE PLAN ENROL-
LEES;

S. 3186                             4

  (E) THE PROCEDURE CODE OR OTHER DESCRIPTION OF A HEALTH  CARE  SERVICE
COVERED  BY  A  PAYMENT  AND  THE  APPROPRIATE GROUPING OF THE PROCEDURE
CODES; OR
  (F) THE AMOUNT OF ANY OTHER COMPONENT OF THE REIMBURSEMENT METHODOLOGY
FOR A HEALTH CARE SERVICE.
  2.  NOTHING  HEREIN  SHALL BE DEEMED TO AFFECT OR LIMIT THE RIGHT OF A
HEALTH CARE PROVIDER OR GROUP OF HEALTH CARE PROVIDERS  TO  COLLECTIVELY
PETITION A GOVERNMENT ENTITY FOR A CHANGE IN A LAW, RULE, OR REGULATION.
  S 4923. COLLECTIVE NEGOTIATION REQUIREMENTS. 1. COLLECTIVE NEGOTIATION
RIGHTS GRANTED BY THIS TITLE MUST CONFORM TO THE FOLLOWING REQUIREMENTS:
  (A)  HEALTH  CARE  PROVIDERS  MAY  COMMUNICATE  WITH OTHER HEALTH CARE
PROVIDERS REGARDING THE CONTRACTUAL TERMS AND CONDITIONS TO  BE  NEGOTI-
ATED WITH A HEALTH CARE PLAN;
  (B)  HEALTH CARE PROVIDERS MAY COMMUNICATE WITH HEALTH CARE PROVIDERS'
REPRESENTATIVES;
  (C) A HEALTH CARE PROVIDERS' REPRESENTATIVE IS THE ONLY PARTY  AUTHOR-
IZED  TO  NEGOTIATE  WITH HEALTH CARE PLANS ON BEHALF OF THE HEALTH CARE
PROVIDERS AS A GROUP;
  (D) A HEALTH CARE PROVIDER CAN BE BOUND BY THE  TERMS  AND  CONDITIONS
NEGOTIATED BY THE HEALTH CARE PROVIDERS' REPRESENTATIVES; AND
  (E)  IN  COMMUNICATING  OR NEGOTIATING WITH THE HEALTH CARE PROVIDERS'
REPRESENTATIVE, A HEALTH CARE PLAN IS ENTITLED TO CONTRACT WITH OR OFFER
DIFFERENT CONTRACT TERMS AND CONDITIONS TO INDIVIDUAL  COMPETING  HEALTH
CARE PROVIDERS.
  2. A HEALTH CARE PROVIDERS' REPRESENTATIVE MAY NOT REPRESENT MORE THAN
THIRTY PERCENT OF THE MARKET OF HEALTH CARE PROVIDERS OR OF A PARTICULAR
HEALTH CARE PROVIDER TYPE OR SPECIALTY PRACTICING IN THE SERVICE AREA OR
PROPOSED  SERVICE  AREA OF A HEALTH CARE PLAN THAT COVERS LESS THAN FIVE
PERCENT OF THE ACTUAL NUMBER OF COVERED LIVES OF THE HEALTH CARE PLAN IN
THE AREA, AS DETERMINED BY THE DEPARTMENT.
  3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO  PROHIBIT  COLLECTIVE
ACTION  ON  THE  PART  OF  ANY HEALTH CARE PROVIDER WHO IS A MEMBER OF A
COLLECTIVE BARGAINING UNIT RECOGNIZED PURSUANT  TO  THE  NATIONAL  LABOR
RELATIONS ACT.
  S  4924.  REQUIREMENTS  FOR  HEALTH CARE PROVIDERS' REPRESENTATIVE. 1.
BEFORE ENGAGING IN COLLECTIVE NEGOTIATIONS WITH A HEALTH  CARE  PLAN  ON
BEHALF OF HEALTH CARE PROVIDERS, A HEALTH CARE PROVIDERS' REPRESENTATIVE
SHALL  FILE  WITH  THE  COMMISSIONER,  IN  THE  MANNER PRESCRIBED BY THE
COMMISSIONER, INFORMATION IDENTIFYING THE REPRESENTATIVE, THE  REPRESEN-
TATIVE'S  PLAN  OF  OPERATION,  AND  THE  REPRESENTATIVE'S PROCEDURES TO
ENSURE COMPLIANCE WITH THIS TITLE.
  2. BEFORE ENGAGING IN THE COLLECTIVE  NEGOTIATIONS,  THE  HEALTH  CARE
PROVIDERS'  REPRESENTATIVE SHALL ALSO SUBMIT TO THE COMMISSIONER FOR THE
COMMISSIONER'S APPROVAL A REPORT IDENTIFYING THE PROPOSED SUBJECT MATTER
OF THE NEGOTIATIONS OR DISCUSSIONS WITH THE HEALTH  CARE  PLAN  AND  THE
EFFICIENCIES  OR  BENEFITS  EXPECTED  TO BE ACHIEVED THROUGH THE NEGOTI-
ATIONS. THE COMMISSIONER SHALL NOT APPROVE THE REPORT IF THE COMMISSION-
ER DETERMINES THAT THE PROPOSED NEGOTIATIONS WOULD EXCEED THE  AUTHORITY
GRANTED UNDER THIS TITLE.
  3.  THE  REPRESENTATIVE SHALL SUPPLEMENT THE INFORMATION IN THE REPORT
ON A REGULAR BASIS OR AS NEW INFORMATION BECOMES  AVAILABLE,  INDICATING
THAT  THE  SUBJECT  MATTER OF THE NEGOTIATIONS WITH THE HEALTH CARE PLAN
HAS CHANGED OR WILL CHANGE. IN NO EVENT SHALL THE REPORT  BE  LESS  THAN
EVERY THIRTY DAYS.
  4. WITH THE ADVICE OF THE SUPERINTENDENT OF INSURANCE, THE COMMISSION-
ER  SHALL  APPROVE OR DISAPPROVE THE REPORT NOT LATER THAN THE TWENTIETH

S. 3186                             5

DAY AFTER THE DATE ON WHICH THE REPORT IS  FILED.  IF  DISAPPROVED,  THE
COMMISSIONER  SHALL  FURNISH  A WRITTEN EXPLANATION OF ANY DEFICIENCIES,
ALONG WITH A STATEMENT OF SPECIFIC PROPOSALS FOR  REMEDIAL  MEASURES  TO
CURE  THE  DEFICIENCIES.  IF THE COMMISSIONER DOES NOT SO ACT WITHIN THE
TWENTY DAYS, THE REPORT SHALL BE DEEMED APPROVED.
  5. A PERSON WHO ACTS AS A HEALTH CARE PROVIDERS' REPRESENTATIVE  WITH-
OUT  THE APPROVAL OF THE COMMISSIONER UNDER THIS SECTION SHALL BE DEEMED
TO BE ACTING OUTSIDE THE AUTHORITY GRANTED UNDER THIS TITLE.
  6. BEFORE REPORTING THE RESULTS OF NEGOTIATIONS  WITH  A  HEALTH  CARE
PLAN OR PROVIDING TO THE AFFECTED HEALTH CARE PROVIDERS AN EVALUATION OF
ANY  OFFER MADE BY A HEALTH CARE PLAN, THE HEALTH CARE PROVIDERS' REPRE-
SENTATIVE SHALL FURNISH FOR APPROVAL BY THE COMMISSIONER, BEFORE DISSEM-
INATION TO THE HEALTH CARE PROVIDERS, A COPY OF ALL COMMUNICATIONS TO BE
MADE TO THE HEALTH CARE PROVIDERS RELATED TO NEGOTIATIONS,  DISCUSSIONS,
AND OFFERS MADE BY THE HEALTH CARE PLAN.
  7.  A  HEALTH  CARE PROVIDERS' REPRESENTATIVE  SHALL REPORT THE END OF
NEGOTIATIONS TO THE COMMISSIONER NOT LATER THAN THE FOURTEENTH DAY AFTER
THE DATE OF A HEALTH CARE PLAN DECISION DECLINING NEGOTIATION, CANCELING
NEGOTIATIONS, OR FAILING TO RESPOND TO A REQUEST FOR NEGOTIATION.
  S 4925. CERTAIN COLLECTIVE ACTION PROHIBITED. 1.  THIS  TITLE  IS  NOT
INTENDED  TO AUTHORIZE COMPETING HEALTH CARE PROVIDERS TO ACT IN CONCERT
IN RESPONSE TO A REPORT ISSUED BY THE HEALTH CARE  PROVIDERS'  REPRESEN-
TATIVE  RELATED TO THE REPRESENTATIVE'S DISCUSSIONS OR NEGOTIATIONS WITH
HEALTH CARE PLANS.
  2. NO HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL NEGOTIATE ANY AGREE-
MENT THAT EXCLUDES, LIMITS THE PARTICIPATION  OR  REIMBURSEMENT  OF,  OR
OTHERWISE LIMITS THE SCOPE OF SERVICES TO BE PROVIDED BY ANY HEALTH CARE
PROVIDER  OR GROUP OF HEALTH CARE PROVIDERS WITH RESPECT TO THE PERFORM-
ANCE OF SERVICES THAT ARE WITHIN THE HEALTH  CARE  PROVIDER'S  SCOPE  OF
PRACTICE, LICENSE, REGISTRATION, OR CERTIFICATE.
  S  4926. FEES. EACH PERSON WHO ACTS AS THE REPRESENTATIVE OR NEGOTIAT-
ING PARTIES UNDER THIS TITLE SHALL PAY TO THE DEPARTMENT A FEE TO ACT AS
A REPRESENTATIVE. THE COMMISSIONER, BY RULE, SHALL SET FEES  IN  AMOUNTS
DEEMED  REASONABLE  AND  NECESSARY  TO  COVER  THE COSTS INCURRED BY THE
DEPARTMENT IN ADMINISTERING THIS TITLE. ANY  FEE  COLLECTED  UNDER  THIS
SECTION  SHALL  BE  DEPOSITED IN THE STATE TREASURY TO THE CREDIT OF THE
GENERAL FUND/STATE OPERATIONS - 003 FOR THE NEW YORK STATE DEPARTMENT OF
HEALTH FUND.
  S 4927. CONFIDENTIALITY. ALL REPORTS AND OTHER INFORMATION REQUIRED TO
BE REPORTED TO THE DEPARTMENT UNDER THIS TITLE SHALL NOT BE  SUBJECT  TO
DISCLOSURE UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ARTICLE THIR-
TY-ONE OF THE CIVIL PRACTICE LAW AND RULES.
  S  4928.  SEVERABILITY  AND CONSTRUCTION. THE PROVISIONS OF THIS TITLE
SHALL BE SEVERABLE, AND IF ANY COURT OF COMPETENT JURISDICTION  DECLARES
ANY  PHRASE,  CLAUSE, SENTENCE OR PROVISION OF THIS TITLE TO BE INVALID,
OR ITS APPLICABILITY TO ANY GOVERNMENT, AGENCY, PERSON  OR  CIRCUMSTANCE
IS DECLARED INVALID, THE REMAINDER OF THIS TITLE AND ITS RELEVANT APPLI-
CABILITY  SHALL  NOT  BE AFFECTED. THE PROVISIONS OF THIS TITLE SHALL BE
LIBERALLY CONSTRUED TO GIVE EFFECT TO THE PURPOSES THEREOF.
  S 4. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided that the commissioner of health  is
authorized  to promulgate any and all rules and regulations and take any
other measures necessary to implement this act on its effective date  on
or before such date.

Co-Sponsors

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S3186A (ACTIVE) - Bill Details

Current Committee:
Senate Rules
Law Section:
Public Health Law
Laws Affected:
Add Art 49 Title III §§4920 - 4929, Pub Health L
Versions Introduced in 2009-2010 Legislative Session:
S2886

S3186A (ACTIVE) - Bill Texts

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Enacts provisions relating to collective negotiations by health care providers with certain health care plans; applies to health benefit plans that provide benefits for medical or surgical expenses incurred as a result of a health condition, accident or sickness, including an individual, group, blanket or franchise insurance policy or insurance agreement offered by certain enumerated entities.

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BILL NUMBER:S3186A

TITLE OF BILL:
An act
to amend the public health law, in relation to requirements for
collective negotiations by health care providers with certain health
benefit plans

PURPOSE:
This bill is designed to restore fairness in the contracting
process between health care providers and large managed care plans by
allowing such providers to join together to negotiate contract
provisions. This legislation would not authorize strikes of health
benefit plans by health care providers.

SUMMARY OF BILL:
Section 1 is a statement of legislative intent that
states that the legislature finds it appropriate and necessary to
authorize collective negotiations on patient care issues and on
fee-related and other issues where it determines that health plans
have an undue advantage negotiating the terms of contracts with
health care providers. The legislative intent clarifies that the act
is not intended to apply or affect collective bargaining
relationships involving health care providers who are employees or
rights relating to collective bargaining arising under applicable
federal/state collective bargaining statutes.

Section 2 cites the bill as the Health Care Consumer and Provider
Protection Act

Section 3 amends article 49 to the public health law by adding a new
title III titled Collective Negotiations by Health Care Providers
with Health Care Plans

This legislation adds a new Article 49-A to the public health law to
authorize collective bargaining for independent contractor health
care providers including physicians. This bill would create a system
under which the state would closely monitor those negotiations, and
any negotiations involving fee-related matters would only be
permitted when an individual managed care plan controls a substantial
share of the managed care market. The Attorney General would be
authorized to approve the health care providers' representative
request to negotiate based upon the benefits to be achieved for
providers and consumers of health services, and is required to review
any offer submitted to the health care providers' representative
prior to sharing with affected health care providers. The legislation
would also create a mechanism for resolving disputes when there is an
impasse or when the health plan refuses to negotiate. The bill would
also direct the Attorney General to approve any final agreement as
well as monitor the implemented agreements to ensure continued
compliance with the law. Importantly, this legislation would not
authorize strikes or concerted action by health care providers in
response to negotiations with health care plans.

Section 4. This act shall take effect 120 days after it shall have
become a law, provided that the department of health may promulgate


and establish any regulations pursuant hereto prior to the effective
date.

JUSTIFICATION:
Currently, federal antitrust laws prohibit individual
health care providers from collectively negotiating any provisions of
contracts they sign with managed care entities.
This bill would allow health care providers in New York State to
conduct some collective negotiations by creating a system under which
the state would closely monitor those negotiations, facilitate
resolution of negotiation impasses, and actively monitor
implementation of agreements. Negotiations involving fee-related
matters would be prohibited unless an individual managed care plan
controls a substantial share of the managed care market.

Giving health care providers greater ability to advocate for patients
in contract negotiations is critical since large health maintenance
organizations control huge shares of the health insurance
market, both in New York and across the country. In the last few years
we have seen the mergers of United Healthcare and Oxford, MVP and
Preferred Care, and Wellpoint with Wellchoice (Empire). As of March
2008, almost 75% of the enrollees in managed care plans in New York
State were enrolled in just five health plans (GHIIHIP,
United/Oxford/Amerchoice, Excellus, Empire and MVP/Preferred Care).
We have also seen an emerging trend of long-time not-for-profit health
insurance companies such as Empire and HIP seeking to convert to
for-profit status.

Due to the current imbalance of negotiating power in favor of the
managed care plans, physicians and other health care providers are
offered take-it-or-leave-it contracts by health plans that
significantly hamper their ability to provide quality patient care.
These contracts permit burdensome processes and unjustifiably long
wait times for obtaining pre-authorization to provide needed patient
care; impose limitations on whom a physician or other health care
provider may refer a patient for necessary care; permit demands for
refunds of payments long after the time that such payments were
originally made; permit health plans to make major changes to key
elements of a contract without physician or other health care
provider consent;
and cede to physicians and other health care providers the legal
consequences for patients harmed by health plan utilization review
decisions.

This bill, by allowing independent contractor physicians and health
care providers to conduct some collective negotiations while being
closely monitored by the state, would give physicians and health care
providers greater ability to advocate for patients in contract
negotiations. This bill would create a system under which the state
would closely monitor those negotiations, and any negotiations
involving fee-related matters would only be permitted when an
individual managed care plan controls a substantial share of the
managed care market. This legislation would not authorize strikes or
boycotts of health benefit plans by physicians.

LEGISLATIVE HISTORY:


2009-2010: A.4301-B/S.5204-A Reported to Ways & Means
2007-2008: A.2177 Reported to Ways & Means
2005-2006: A.6458 Reported to Ways & Means
2003-2004: A.1317-A Reported to Ways & Means
2001-2002: A.5466/S.3569 Reported to Third Reading Calendar
2000: A.9484-A/S.7541-A Referred to Health/Senate Finance

FISCAL IMPLICATIONS:
None to the State. The bill would provide the
legal basis for an appropriation of funds to implement the provisions
of the bill.

EFFECTIVE DATE:
120 days after it shall have become a law, provided
that the department of health may promulgate and establish any
regulations pursuant hereto prior to the effective date.

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

                                 3186--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced  by  Sens.  HANNON,  DeFRANCISCO,  JOHNSON,  KRUEGER,  LANZA,
  MARTINS, MAZIARZ, STAVISKY, ZELDIN -- read twice and ordered  printed,
  and when printed to be committed to the Committee on Health -- commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the public health law, in relation to  requirements  for
  collective  negotiations  by health care providers with certain health
  benefit plans

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

  Section 1. Statement of legislative intent. The legislature finds that
collective  negotiation by competing health care providers for the terms
and conditions of contracts with health plans can result  in  beneficial
results  for  health  care  consumers.  The  legislature  further  finds
instances where health plans dominate the market to such a  degree  that
fair  and  adequate  negotiations  between health care providers and the
plans are adversely affected, so that it is necessary and appropriate to
provide for a system of collective  action  on  behalf  of  health  care
providers. Consequently, the legislature finds it appropriate and neces-
sary  to  displace  competition  with regulation of health plan-provider
agreements and authorize collective negotiations on the terms and condi-
tions of the relationship between health  care  plans  and  health  care
providers  so  the imbalances between the two will not result in adverse
conditions of health care. This act is  not  intended  to  apply  to  or
affect  in  any  respect  collective  bargaining relationships involving
health care providers as defined in section 4920 of  the  public  health
law or rights relating to collective bargaining arising under applicable
federal or state collective bargaining statutes.
  S  2.  This  act  shall  be known and may be cited as the "health care
consumer and provider protection act".

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02375-03-1

S. 3186--A                          2

  S 3. Article 49 of the public health law is amended by  adding  a  new
title III to read as follows:
                                TITLE III
                 COLLECTIVE NEGOTIATIONS BY HEALTH CARE
                    PROVIDERS WITH HEALTH CARE PLANS
SECTION 4920. DEFINITIONS.
        4921. NON-FEE RELATED COLLECTIVE NEGOTIATION AUTHORIZED.
        4922. FEE RELATED COLLECTIVE NEGOTIATION.
        4923. COLLECTIVE NEGOTIATION REQUIREMENTS.
        4924. REQUIREMENTS FOR HEALTH CARE PROVIDERS' REPRESENTATIVE.
        4925. CERTAIN COLLECTIVE ACTION PROHIBITED.
        4926. FEES.
        4927. MONITORING OF AGREEMENTS.
        4928. CONFIDENTIALITY.
        4929. SEVERABILITY AND CONSTRUCTION.
  S 4920. DEFINITIONS. FOR PURPOSES OF THIS TITLE:
  1.  "HEALTH  CARE  PLAN"  MEANS  AN  ENTITY  (OTHER THAN A HEALTH CARE
PROVIDER) THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH CARE
SERVICES, INCLUDING BUT NOT LIMITED TO:
  (A) A HEALTH MAINTENANCE ORGANIZATION  LICENSED  PURSUANT  TO  ARTICLE
FORTY-THREE  OF  THE  INSURANCE  LAW  OR  CERTIFIED  PURSUANT TO ARTICLE
FORTY-FOUR OF THIS CHAPTER;
  (B) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF
THIS CHAPTER; OR
  (C) AN INSURER OR CORPORATION SUBJECT TO THE INSURANCE LAW.
  2. "PERSON" MEANS AN  INDIVIDUAL,  ASSOCIATION,  CORPORATION,  OR  ANY
OTHER LEGAL ENTITY.
  3.  "HEALTH CARE PROVIDERS' REPRESENTATIVE" MEANS A THIRD PARTY WHO IS
AUTHORIZED BY HEALTH CARE PROVIDERS TO NEGOTIATE ON  THEIR  BEHALF  WITH
HEALTH  CARE PLANS OVER CONTRACTUAL TERMS AND CONDITIONS AFFECTING THOSE
HEALTH CARE PROVIDERS.
  4. "STRIKE" MEANS A WORK STOPPAGE IN PART OR IN WHOLE, DIRECT OR INDI-
RECT, BY A BODY OF WORKERS TO GAIN COMPLIANCE WITH DEMANDS  MADE  ON  AN
EMPLOYER.
  5.  "SUBSTANTIAL  MARKET  SHARE IN A BUSINESS LINE" EXISTS IF A HEALTH
CARE PLAN'S MARKET SHARE OF A BUSINESS LINE WITHIN  A  SERVICE  AREA  AS
APPROVED  BY  THE  ATTORNEY  GENERAL,  ALONE  OR IN COMBINATION WITH THE
MARKET SHARES OF AFFILIATES, EXCEEDS EITHER TEN  PERCENT  OF  THE  TOTAL
NUMBER  OF  COVERED LIVES IN THAT SERVICE AREA FOR SUCH BUSINESS LINE OR
TWENTY-FIVE THOUSAND LIVES, OR IF THE ATTORNEY  GENERAL  DETERMINES  THE
MARKET  SHARE  OF  THE  INSURER  IN  THE  RELEVANT INSURANCE PRODUCT AND
GEOGRAPHIC MARKETS FOR THE SERVICES OF THE PROVIDERS SEEKING TO  COLLEC-
TIVELY  NEGOTIATE  SIGNIFICANTLY EXCEEDS THE COUNTERVAILING MARKET SHARE
OF THE PROVIDERS ACTING INDIVIDUALLY.
  6. "HEALTH CARE PROVIDER" MEANS A PERSON WHO IS  LICENSED,  CERTIFIED,
OR REGISTERED PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW AND WHO PRAC-
TICES  AS A HEALTH CARE PROVIDER AS AN INDEPENDENT CONTRACTOR AND/OR WHO
IS AN OWNER, OFFICER,  SHAREHOLDER,  OR  PROPRIETOR  OF  A  HEALTH  CARE
PROVIDER.  A HEALTH CARE PROVIDER UNDER TITLE EIGHT OF THE EDUCATION LAW
WHO PRACTICES AS AN EMPLOYEE OF A HEALTH  CARE  PROVIDER  SHALL  NOT  BE
DEEMED A HEALTH CARE PROVIDER FOR PURPOSES OF THIS TITLE.
  S  4921.  NON-FEE RELATED COLLECTIVE NEGOTIATION AUTHORIZED. 1. HEALTH
CARE PROVIDERS PRACTICING WITHIN THE SERVICE AREA OF A HEALTH CARE  PLAN
MAY MEET AND COMMUNICATE FOR THE PURPOSE OF COLLECTIVELY NEGOTIATING THE
FOLLOWING  TERMS  AND  CONDITIONS  OF PROVIDER CONTRACTS WITH THE HEALTH
CARE PLAN:

S. 3186--A                          3

  (A) THE DETAILS OF THE UTILIZATION REVIEW PLAN AS DEFINED PURSUANT  TO
SUBDIVISION  TEN  OF  SECTION  FORTY-NINE  HUNDRED  OF  THIS ARTICLE AND
SUBSECTION (J) OF SECTION FOUR THOUSAND NINE HUNDRED  OF  THE  INSURANCE
LAW;
  (B)  COVERAGE  PROVISIONS;  HEALTH  CARE  BENEFITS;  BENEFIT MAXIMUMS,
INCLUDING BENEFIT LIMITATIONS; AND EXCLUSIONS OF COVERAGE;
  (C) THE DEFINITION OF MEDICAL NECESSITY;
  (D) THE CLINICAL PRACTICE GUIDELINES USED TO  MAKE  MEDICAL  NECESSITY
AND UTILIZATION REVIEW DETERMINATIONS;
  (E) PREVENTIVE CARE AND OTHER MEDICAL MANAGEMENT PRACTICES;
  (F)  DRUG  FORMULARIES  AND  STANDARDS  AND PROCEDURES FOR PRESCRIBING
OFF-FORMULARY DRUGS;
  (G) RESPECTIVE PHYSICIAN LIABILITY FOR THE TREATMENT OR LACK OF TREAT-
MENT OF COVERED PERSONS;
  (H) THE DETAILS OF HEALTH CARE PLAN RISK  TRANSFER  ARRANGEMENTS  WITH
PROVIDERS;
  (I)  PLAN  ADMINISTRATIVE  PROCEDURES, INCLUDING METHODS AND TIMING OF
HEALTH CARE PROVIDER PAYMENT FOR SERVICES;
  (J) PROCEDURES TO BE UTILIZED TO RESOLVE DISPUTES BETWEEN  THE  HEALTH
CARE PLAN AND HEALTH CARE PROVIDERS;
  (K)  PATIENT  REFERRAL PROCEDURES INCLUDING, BUT NOT LIMITED TO, THOSE
APPLICABLE TO OUT-OF-POCKET NETWORK REFERRALS;
  (L) THE FORMULATION AND APPLICATION OF HEALTH CARE PROVIDER REIMBURSE-
MENT PROCEDURES;
  (M) QUALITY ASSURANCE PROGRAMS;
  (N)  THE  PROCESS  FOR  RENDERING  UTILIZATION  REVIEW  DETERMINATIONS
INCLUDING:  ESTABLISHMENT  OF A PROCESS FOR RENDERING UTILIZATION REVIEW
DETERMINATIONS WHICH SHALL, AT A MINIMUM, INCLUDE: WRITTEN PROCEDURES TO
ASSURE THAT UTILIZATION REVIEWS AND DETERMINATIONS ARE CONDUCTED  WITHIN
THE  TIMEFRAMES  ESTABLISHED  IN  THIS  ARTICLE; PROCEDURES TO NOTIFY AN
ENROLLEE, AN  ENROLLEE'S  DESIGNEE  AND/OR  AN  ENROLLEE'S  HEALTH  CARE
PROVIDER OF ADVERSE DETERMINATIONS; AND PROCEDURES FOR APPEAL OF ADVERSE
DETERMINATIONS,  INCLUDING  THE  ESTABLISHMENT  OF  AN EXPEDITED APPEALS
PROCESS FOR DENIALS OF CONTINUED INPATIENT CARE OR WHERE THERE IS  IMMI-
NENT OR SERIOUS THREAT TO THE HEALTH OF THE ENROLLEE; AND
  (O)  HEALTH  CARE  PROVIDER SELECTION AND TERMINATION CRITERIA USED BY
THE HEALTH CARE PLAN.
  2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE AN
ALTERATION OF THE TERMS OF THE INTERNAL AND EXTERNAL  REVIEW  PROCEDURES
SET FORTH IN LAW.
  3.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO ALLOW A STRIKE OF A
HEALTH CARE PLAN BY HEALTH CARE PROVIDERS  OR  PLANS  AS  OTHERWISE  SET
FORTH IN THE LAWS OF THIS STATE.
  4.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE
TERMS OR CONDITIONS WHICH WOULD IMPEDE THE ABILITY OF A HEALTH CARE PLAN
TO OBTAIN OR RETAIN ACCREDITATION BY THE NATIONAL COMMITTEE FOR  QUALITY
ASSURANCE OR A SIMILAR BODY.
  S 4922. FEE RELATED COLLECTIVE NEGOTIATION. 1. IF THE HEALTH CARE PLAN
HAS  SUBSTANTIAL  MARKET  SHARE  IN A BUSINESS LINE IN ANY SERVICE AREA,
HEALTH CARE PROVIDERS PRACTICING WITHIN THAT SERVICE  AREA  MAY  COLLEC-
TIVELY  NEGOTIATE  THE  FOLLOWING  TERMS AND CONDITIONS RELATING TO THAT
BUSINESS LINE WITH THE HEALTH CARE PLAN:
  (A) THE FEES ASSESSED BY THE HEALTH CARE PLAN FOR SERVICES,  INCLUDING
FEES ESTABLISHED THROUGH THE APPLICATION OF REIMBURSEMENT PROCEDURES;
  (B)  THE  CONVERSION  FACTORS  USED  BY  THE  HEALTH  CARE  PLAN  IN A
RESOURCE-BASED RELATIVE VALUE SCALE REIMBURSEMENT METHODOLOGY  OR  OTHER

S. 3186--A                          4

SIMILAR  METHODOLOGY; PROVIDED THE SAME ARE NOT OTHERWISE ESTABLISHED BY
STATE OR FEDERAL LAW OR REGULATION;
  (C)  THE AMOUNT OF ANY DISCOUNT GRANTED BY THE HEALTH CARE PLAN ON THE
FEE OF HEALTH CARE SERVICES TO BE RENDERED BY HEALTH CARE PROVIDERS;
  (D) THE DOLLAR AMOUNT  OF  CAPITATION  OR  FIXED  PAYMENT  FOR  HEALTH
SERVICES  RENDERED  BY  HEALTH CARE PROVIDERS TO HEALTH CARE PLAN ENROL-
LEES;
  (E) THE PROCEDURE CODE OR OTHER DESCRIPTION OF A HEALTH  CARE  SERVICE
COVERED  BY  A  PAYMENT  AND  THE  APPROPRIATE GROUPING OF THE PROCEDURE
CODES; OR
  (F) THE AMOUNT OF ANY OTHER COMPONENT OF THE REIMBURSEMENT METHODOLOGY
FOR A HEALTH CARE SERVICE.
  2. NOTHING HEREIN SHALL BE DEEMED TO AFFECT OR LIMIT THE  RIGHT  OF  A
HEALTH  CARE  PROVIDER OR GROUP OF HEALTH CARE PROVIDERS TO COLLECTIVELY
PETITION A GOVERNMENT ENTITY FOR A CHANGE IN A LAW, RULE, OR REGULATION.
  S 4923. COLLECTIVE NEGOTIATION REQUIREMENTS. 1. COLLECTIVE NEGOTIATION
RIGHTS GRANTED BY THIS TITLE MUST CONFORM TO THE FOLLOWING REQUIREMENTS:
  (A) HEALTH CARE PROVIDERS  MAY  COMMUNICATE  WITH  OTHER  HEALTH  CARE
PROVIDERS  REGARDING  THE CONTRACTUAL TERMS AND CONDITIONS TO BE NEGOTI-
ATED WITH A HEALTH CARE PLAN;
  (B) HEALTH CARE PROVIDERS MAY COMMUNICATE WITH HEALTH CARE  PROVIDERS'
REPRESENTATIVES;
  (C)  A HEALTH CARE PROVIDERS' REPRESENTATIVE IS THE ONLY PARTY AUTHOR-
IZED TO NEGOTIATE WITH HEALTH CARE PLANS ON BEHALF OF  THE  HEALTH  CARE
PROVIDERS AS A GROUP;
  (D)  A  HEALTH  CARE PROVIDER CAN BE BOUND BY THE TERMS AND CONDITIONS
NEGOTIATED BY THE HEALTH CARE PROVIDERS' REPRESENTATIVES; AND
  (E) IN COMMUNICATING OR NEGOTIATING WITH THE  HEALTH  CARE  PROVIDERS'
REPRESENTATIVE, A HEALTH CARE PLAN IS ENTITLED TO CONTRACT WITH OR OFFER
DIFFERENT  CONTRACT  TERMS AND CONDITIONS TO INDIVIDUAL COMPETING HEALTH
CARE PROVIDERS.
  2. A HEALTH CARE PROVIDERS' REPRESENTATIVE MAY NOT REPRESENT MORE THAN
THIRTY PERCENT OF THE MARKET OF HEALTH CARE PROVIDERS OR OF A PARTICULAR
HEALTH CARE PROVIDER TYPE OR SPECIALTY PRACTICING IN THE SERVICE AREA OR
PROPOSED SERVICE AREA OF A HEALTH CARE PLAN THAT COVERS LESS  THAN  FIVE
PERCENT OF THE ACTUAL NUMBER OF COVERED LIVES OF THE HEALTH CARE PLAN IN
THE AREA, AS DETERMINED BY THE DEPARTMENT.
  3.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT COLLECTIVE
ACTION ON THE PART OF ANY HEALTH CARE PROVIDER WHO  IS  A  MEMBER  OF  A
COLLECTIVE  BARGAINING  UNIT  RECOGNIZED  PURSUANT TO THE NATIONAL LABOR
RELATIONS ACT.
  S 4924. REQUIREMENTS FOR HEALTH  CARE  PROVIDERS'  REPRESENTATIVE.  1.
BEFORE  ENGAGING  IN  COLLECTIVE NEGOTIATIONS WITH A HEALTH CARE PLAN ON
BEHALF OF HEALTH CARE PROVIDERS, A HEALTH CARE PROVIDERS' REPRESENTATIVE
SHALL FILE WITH THE ATTORNEY GENERAL, IN THE MANNER  PRESCRIBED  BY  THE
ATTORNEY GENERAL, INFORMATION IDENTIFYING THE REPRESENTATIVE, THE REPRE-
SENTATIVE'S  PLAN  OF  OPERATION, AND THE REPRESENTATIVE'S PROCEDURES TO
ENSURE COMPLIANCE WITH THIS TITLE.
  2. BEFORE ENGAGING IN THE COLLECTIVE  NEGOTIATIONS,  THE  HEALTH  CARE
PROVIDERS'  REPRESENTATIVE SHALL ALSO SUBMIT TO THE ATTORNEY GENERAL FOR
THE ATTORNEY  GENERAL'S  APPROVAL  A  REPORT  IDENTIFYING  THE  PROPOSED
SUBJECT  MATTER  OF THE NEGOTIATIONS OR DISCUSSIONS WITH THE HEALTH CARE
PLAN AND THE EFFICIENCIES OR BENEFITS EXPECTED TO  BE  ACHIEVED  THROUGH
THE  NEGOTIATIONS  FOR  BOTH  THE  PROVIDERS  AND  CONSUMERS  OF  HEALTH
SERVICES. THE ATTORNEY GENERAL SHALL  NOT  APPROVE  THE  REPORT  IF  THE

S. 3186--A                          5

ATTORNEY  GENERAL DETERMINES THAT THE PROPOSED NEGOTIATIONS WOULD EXCEED
THE AUTHORITY GRANTED UNDER THIS TITLE.
  3.  THE  REPRESENTATIVE SHALL SUPPLEMENT THE INFORMATION IN THE REPORT
ON A REGULAR BASIS OR AS NEW INFORMATION BECOMES  AVAILABLE,  INDICATING
THAT  THE  SUBJECT  MATTER OF THE NEGOTIATIONS WITH THE HEALTH CARE PLAN
HAS CHANGED OR WILL CHANGE. IN NO EVENT SHALL THE REPORT  BE  LESS  THAN
EVERY THIRTY DAYS.
  4.  WITH THE ADVICE OF THE SUPERINTENDENT OF INSURANCE AND THE COMMIS-
SIONER, THE ATTORNEY GENERAL SHALL APPROVE OR DISAPPROVE THE REPORT  NOT
LATER  THAN  THE  TWENTIETH  DAY  AFTER  THE DATE ON WHICH THE REPORT IS
FILED. IF DISAPPROVED, THE ATTORNEY  GENERAL  SHALL  FURNISH  A  WRITTEN
EXPLANATION  OF  ANY  DEFICIENCIES,  ALONG  WITH A STATEMENT OF SPECIFIC
PROPOSALS FOR REMEDIAL MEASURES TO CURE THE DEFICIENCIES. IF THE  ATTOR-
NEY  GENERAL DOES NOT SO ACT WITHIN THE TWENTY DAYS, THE REPORT SHALL BE
DEEMED APPROVED.
  5. A PERSON WHO ACTS AS A HEALTH CARE PROVIDERS' REPRESENTATIVE  WITH-
OUT  THE  APPROVAL  OF  THE ATTORNEY GENERAL UNDER THIS SECTION SHALL BE
DEEMED TO BE ACTING OUTSIDE THE AUTHORITY GRANTED UNDER THIS TITLE.
  6. BEFORE REPORTING THE RESULTS OF NEGOTIATIONS  WITH  A  HEALTH  CARE
PLAN OR PROVIDING TO THE AFFECTED HEALTH CARE PROVIDERS AN EVALUATION OF
ANY  OFFER MADE BY A HEALTH CARE PLAN, THE HEALTH CARE PROVIDERS' REPRE-
SENTATIVE SHALL FURNISH FOR APPROVAL BY  THE  ATTORNEY  GENERAL,  BEFORE
DISSEMINATION TO THE HEALTH CARE PROVIDERS, A COPY OF ALL COMMUNICATIONS
TO  BE  MADE  TO  THE  HEALTH  CARE  PROVIDERS  RELATED TO NEGOTIATIONS,
DISCUSSIONS, AND OFFERS MADE BY THE HEALTH CARE PLAN.
  7. A HEALTH CARE PROVIDERS' REPRESENTATIVE   SHALL REPORT THE  END  OF
NEGOTIATIONS  TO  THE ATTORNEY GENERAL NOT LATER THAN THE FOURTEENTH DAY
AFTER THE DATE OF A HEALTH CARE  PLAN  DECISION  DECLINING  NEGOTIATION,
CANCELING  NEGOTIATIONS,  OR FAILING TO RESPOND TO A REQUEST FOR NEGOTI-
ATION.  IN SUCH INSTANCES, A HEALTH CARE PROVIDERS'  REPRESENTATIVE  MAY
REQUEST  INTERVENTION  FROM  THE  ATTORNEY GENERAL TO REQUIRE THE HEALTH
CARE PLAN TO PARTICIPATE IN  THE  NEGOTIATION  PURSUANT  TO  SUBDIVISION
EIGHT OF THIS SECTION.
  8.  (A)  IN  THE EVENT THE ATTORNEY GENERAL DETERMINES THAT AN IMPASSE
EXISTS IN THE NEGOTIATIONS, OR IN THE EVENT A HEALTH CARE PLAN  DECLINES
TO  NEGOTIATE, CANCELS NEGOTIATIONS OR FAILS TO RESPOND TO A REQUEST FOR
NEGOTIATION, THE ATTORNEY GENERAL SHALL RENDER ASSISTANCE AS FOLLOWS:
  (1) TO ASSIST THE PARTIES TO EFFECT  A  VOLUNTARY  RESOLUTION  OF  THE
NEGOTIATIONS,  THE ATTORNEY GENERAL SHALL APPOINT A MEDIATOR FROM A LIST
OF QUALIFIED PERSONS MAINTAINED BY THE ATTORNEY GENERAL. IF THE MEDIATOR
IS SUCCESSFUL IN RESOLVING THE IMPASSE, THEN THE HEALTH CARE  PROVIDERS'
REPRESENTATIVE SHALL PROCEED AS SET FORTH IN THIS ARTICLE;
  (2)  IF  AN  IMPASSE  CONTINUES,  THE ATTORNEY GENERAL SHALL APPOINT A
FACT-FINDING BOARD OF NOT MORE THAN THREE MEMBERS FROM A LIST OF  QUALI-
FIED  PERSONS  MAINTAINED  BY  THE  ATTORNEY GENERAL, WHICH FACT-FINDING
BOARD SHALL HAVE, IN ADDITION TO THE  POWERS  DELEGATED  TO  IT  BY  THE
BOARD,  THE  POWER  TO  MAKE  RECOMMENDATIONS  FOR THE RESOLUTION OF THE
DISPUTE;
  (B) THE FACT-FINDING BOARD, ACTING BY A MAJORITY OF ITS MEMBERS, SHALL
TRANSMIT ITS FINDINGS OF FACT AND RECOMMENDATIONS FOR RESOLUTION OF  THE
DISPUTE  TO  THE ATTORNEY GENERAL, AND MAY THEREAFTER ASSIST THE PARTIES
TO EFFECT A VOLUNTARY RESOLUTION OF THE DISPUTE. THE FACT-FINDING  BOARD
SHALL  ALSO  SHARE  ITS  FINDINGS  OF  FACT AND RECOMMENDATIONS WITH THE
HEALTH CARE PROVIDERS' REPRESENTATIVE AND THE HEALTH CARE PLAN. IF WITH-
IN TWENTY DAYS AFTER THE SUBMISSION OF THE FINDINGS OF FACT  AND  RECOM-
MENDATIONS,  THE  IMPASSE  CONTINUES, THE ATTORNEY GENERAL SHALL ORDER A

S. 3186--A                          6

RESOLUTION TO THE NEGOTIATIONS BASED  UPON  THE  FINDINGS  OF  FACT  AND
RECOMMENDATIONS SUBMITTED BY THE FACT-FINDING BOARD.
  9.  ANY  PROPOSED AGREEMENT BETWEEN HEALTH CARE PROVIDERS AND A HEALTH
CARE PLAN NEGOTIATED PURSUANT TO THIS TITLE SHALL BE  SUBMITTED  TO  THE
ATTORNEY  GENERAL FOR FINAL APPROVAL. THE ATTORNEY GENERAL SHALL APPROVE
OR DISAPPROVE THE AGREEMENT WITHIN SIXTY DAYS OF SUCH SUBMISSION.
  10. THE ATTORNEY GENERAL MAY COLLECT INFORMATION FROM OTHER PERSONS TO
ASSIST IN EVALUATING THE IMPACT  OF  THE  PROPOSED  ARRANGEMENT  ON  THE
HEALTH  CARE MARKETPLACE. THE ATTORNEY GENERAL SHALL COLLECT INFORMATION
FROM HEALTH PLAN COMPANIES AND HEALTH CARE PROVIDERS  OPERATING  IN  THE
SAME GEOGRAPHIC AREA AS THE HEALTH CARE COOPERATIVE.
  S  4925.  CERTAIN  COLLECTIVE  ACTION PROHIBITED. 1. THIS TITLE IS NOT
INTENDED TO AUTHORIZE COMPETING HEALTH CARE PROVIDERS TO ACT IN  CONCERT
IN  RESPONSE  TO A REPORT ISSUED BY THE HEALTH CARE PROVIDERS' REPRESEN-
TATIVE RELATED TO THE REPRESENTATIVE'S DISCUSSIONS OR NEGOTIATIONS  WITH
HEALTH CARE PLANS.
  2. NO HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL NEGOTIATE ANY AGREE-
MENT  THAT  EXCLUDES,  LIMITS  THE PARTICIPATION OR REIMBURSEMENT OF, OR
OTHERWISE LIMITS THE SCOPE OF SERVICES TO BE PROVIDED BY ANY HEALTH CARE
PROVIDER OR GROUP OF HEALTH CARE PROVIDERS WITH RESPECT TO THE  PERFORM-
ANCE  OF  SERVICES  THAT  ARE WITHIN THE HEALTH CARE PROVIDER'S SCOPE OF
PRACTICE, LICENSE, REGISTRATION, OR CERTIFICATE.
  S 4926. FEES. EACH PERSON WHO ACTS AS THE REPRESENTATIVE OR  NEGOTIAT-
ING PARTIES UNDER THIS TITLE SHALL PAY TO THE DEPARTMENT A FEE TO ACT AS
A  REPRESENTATIVE.  THE  ATTORNEY  GENERAL,  BY  RULE, SHALL SET FEES IN
AMOUNTS DEEMED REASONABLE AND NECESSARY TO COVER THE COSTS  INCURRED  BY
THE DEPARTMENT IN ADMINISTERING THIS TITLE. ANY FEE COLLECTED UNDER THIS
SECTION  SHALL  BE  DEPOSITED IN THE STATE TREASURY TO THE CREDIT OF THE
GENERAL FUND/STATE OPERATIONS - 003 FOR THE NEW YORK STATE DEPARTMENT OF
HEALTH FUND.
  S 4927. MONITORING OF AGREEMENTS. THE ATTORNEY GENERAL SHALL  ACTIVELY
MONITOR  AGREEMENTS  APPROVED UNDER THIS TITLE TO ENSURE THAT THE AGREE-
MENT REMAINS  IN  COMPLIANCE  WITH  THE  CONDITIONS  OF  APPROVAL.  UPON
REQUEST, A HEALTH CARE PLAN OR HEALTH CARE PROVIDER SHALL PROVIDE INFOR-
MATION REGARDING COMPLIANCE. THE ATTORNEY GENERAL MAY REVOKE AN APPROVAL
UPON  A FINDING THAT THE AGREEMENT IS NOT IN SUBSTANTIAL COMPLIANCE WITH
THE TERMS OF THE APPLICATION OR THE CONDITIONS OF APPROVAL.
  S 4928. CONFIDENTIALITY. ALL REPORTS AND OTHER INFORMATION REQUIRED TO
BE REPORTED TO THE DEPARTMENT OF LAW UNDER THIS TITLE INCLUDING INFORMA-
TION OBTAINED BY THE ATTORNEY GENERAL PURSUANT  TO  SUBDIVISION  TEN  OF
SECTION  FORTY-NINE  HUNDRED  TWENTY-FOUR  OF  THIS  TITLE  SHALL NOT BE
SUBJECT TO DISCLOSURE UNDER ARTICLE SIX OF THE PUBLIC  OFFICERS  LAW  OR
ARTICLE THIRTY-ONE OF THE CIVIL PRACTICE LAW AND RULES.
  S  4929.  SEVERABILITY  AND CONSTRUCTION. THE PROVISIONS OF THIS TITLE
SHALL BE SEVERABLE, AND IF ANY COURT OF COMPETENT JURISDICTION  DECLARES
ANY  PHRASE,  CLAUSE, SENTENCE OR PROVISION OF THIS TITLE TO BE INVALID,
OR ITS APPLICABILITY TO ANY GOVERNMENT, AGENCY, PERSON  OR  CIRCUMSTANCE
IS DECLARED INVALID, THE REMAINDER OF THIS TITLE AND ITS RELEVANT APPLI-
CABILITY  SHALL  NOT  BE AFFECTED. THE PROVISIONS OF THIS TITLE SHALL BE
LIBERALLY CONSTRUED TO GIVE EFFECT TO THE PURPOSES THEREOF.
  S 4. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided that the commissioner of health  is
authorized  to promulgate any and all rules and regulations and take any
other measures necessary to implement this act on its effective date  on
or before such date.

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