senate Bill S3690

2013-2014 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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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to health
Jun 10, 2013 reported and committed to finance
Feb 11, 2013 referred to health

Votes

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Jun 10, 2013 - Health committee Vote

S3690
10
0
committee
10
Aye
0
Nay
7
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Co-Sponsors

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S3690 - Bill Details

See Assembly Version of this Bill:
A5692
Current Committee:
Senate Health
Law Section:
Public Health Law
Laws Affected:
Add Art 49 Title III ยงยง4920 - 4929, Pub Health L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S3186A, A2474A
2009-2010: S2886, A4301B

S3690 - 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:S3690

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 bene-
fit plans by health care providers.

SUMMARY OF PROVISIONS:

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 negotiat-
ing the terms of contracts with health care providers. The legislative
intent clarifies that the act is not intended to apply or affect collec-
tive 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 nego-
tiations involving fee-related matters would only be permitted when an
individual managed care plan controls a substantial share of the managed
care market. The Commissioner of Health 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 Commissioner of
Health with input from the Superintendent of Insurance and the Attorney
General to approve any final agreement as well as monitor the imple-
mented agreements to ensure continued compliance with the law. Impor-
tantly, 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 nego-
tiations by creating a system under which the state would closely moni-
tor those negotiations, facilitate resolution of negotiation impasses,
and actively monitor implementation of agreements. Negotiations involv-
ing 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 organ-
izations 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 (GM/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 limi-
tations 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 physi-
cian 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: 2000: A.9484-A -- Referred to Health/Senate
Finance 2001-2002: A.5466-- Reported to Third Reading Calendar

2003-2004: A.1317-A Reported to Ways & Means 2005-2006: A.6458 Reported
to Ways & Means 2007-2008 A.2177 Reported to Ways & Means 2009-2010
A.4301-- Reported to Ways & Means 2011-2012: A.2474A--Reported to Ways
and Means

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 regu-
lations 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
________________________________________________________________________

                                  3690

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 11, 2013
                               ___________

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  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 which arise
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".
  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08691-01-3

S. 3690                             2

        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 HEALTH CARE PROVIDER OR HEALTH CARE PROVIDERS TO GAIN COMPLI-
ANCE WITH DEMANDS MADE ON A HEALTH CARE PLAN.
  5. "SUBSTANTIAL MARKET SHARE IN A BUSINESS LINE" EXISTS  IF  A  HEALTH
CARE  PLAN'S  MARKET SHARE OF A BUSINESS LINE WITHIN THE GEOGRAPHIC AREA
FOR WHICH A NEGOTIATION HAS BEEN 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  SHARE  OF THE INSURER IN THE RELEVANT INSURANCE
PRODUCT AND GEOGRAPHIC MARKETS FOR THE SERVICES OF THE PROVIDERS SEEKING
TO  COLLECTIVELY  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 GEOGRAPHIC AREA FOR WHICH A NEGOTI-
ATION HAS BEEN APPROVED BY THE COMMISSIONER MAY MEET AND COMMUNICATE FOR
THE  PURPOSE  OF COLLECTIVELY NEGOTIATING THE FOLLOWING TERMS AND CONDI-
TIONS 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 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;

S. 3690                             3

  (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-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  GEOGRAPHIC  AREA
FOR  WHICH  A  NEGOTIATION HAS BEEN APPROVED BY THE COMMISSIONER, HEALTH
CARE PROVIDERS PRACTICING WITHIN THAT GEOGRAPHIC 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;

S. 3690                             4

  (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 GEOGRAPHIC AREA
FOR  WHICH  A  NEGOTIATION  HAS BEEN APPROVED BY THE COMMISSIONER IF THE
HEALTH CARE PLAN 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 FOR BOTH THE PROVIDERS AND  CONSUMERS  OF  HEALTH  SERVICES.  THE
COMMISSIONER  SHALL  NOT  APPROVE  THE  REPORT  IF  THE COMMISSIONER, IN
CONSULTATION WITH THE SUPERINTENDENT OF  FINANCIAL  SERVICES  DETERMINES
THAT  THE PROPOSED NEGOTIATIONS WOULD EXCEED THE AUTHORITY GRANTED UNDER
THIS TITLE.

S. 3690                             5

  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 FINANCIAL SERVICES AND THE
ATTORNEY  GENERAL,  THE  COMMISSIONER  SHALL  APPROVE  OR DISAPPROVE THE
REPORT NOT LATER THAN THE TWENTIETH DAY AFTER  THE  DATE  ON  WHICH  THE
REPORT  IS FILED. IF DISAPPROVED, THE COMMISSIONER SHALL FURNISH A WRIT-
TEN EXPLANATION OF ANY DEFICIENCIES, ALONG WITH A STATEMENT OF  SPECIFIC
PROPOSALS FOR REMEDIAL MEASURES TO CURE THE DEFICIENCIES. IF THE COMMIS-
SIONER  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.    IN
SUCH  INSTANCES,  A  HEALTH  CARE  PROVIDERS' REPRESENTATIVE MAY REQUEST
INTERVENTION FROM THE COMMISSIONER TO REQUIRE THE HEALTH  CARE  PLAN  TO
PARTICIPATE  IN  THE  NEGOTIATION  PURSUANT TO SUBDIVISION EIGHT OF THIS
SECTION.
  8. (A) IN THE EVENT THE COMMISSIONER 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 COMMISSIONER SHALL RENDER ASSISTANCE AS FOLLOWS:
  (1) TO ASSIST THE PARTIES TO EFFECT  A  VOLUNTARY  RESOLUTION  OF  THE
NEGOTIATIONS,  THE  COMMISSIONER SHALL APPOINT A MEDIATOR FROM A LIST OF
QUALIFIED PERSONS MAINTAINED BY THE COMMISSIONER.  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  COMMISSIONER  SHALL  APPOINT  A
FACT-FINDING  BOARD OF NOT MORE THAN THREE MEMBERS FROM A LIST OF QUALI-
FIED PERSONS MAINTAINED BY THE COMMISSIONER,  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  COMMISSIONER, 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 COMMISSIONER SHALL ORDER A RESOL-
UTION   TO  THE  NEGOTIATIONS  BASED  UPON  THE  FINDINGS  OF  FACT  AND
RECOMMENDATIONS SUBMITTED BY THE FACT-FINDING BOARD.

S. 3690                             6

  9. ANY PROPOSED AGREEMENT BETWEEN HEALTH CARE PROVIDERS AND  A  HEALTH
CARE  PLAN  NEGOTIATED  PURSUANT TO THIS TITLE SHALL BE SUBMITTED TO THE
COMMISSIONER FOR FINAL  APPROVAL.  THE  COMMISSIONER  SHALL  APPROVE  OR
DISAPPROVE THE AGREEMENT WITHIN SIXTY DAYS OF SUCH SUBMISSION.
  10.  THE  COMMISSIONER  MAY  COLLECT INFORMATION FROM OTHER PERSONS TO
ASSIST IN EVALUATING THE IMPACT  OF  THE  PROPOSED  ARRANGEMENT  ON  THE
HEALTH CARE MARKETPLACE. THE COMMISSIONER SHALL COLLECT INFORMATION FROM
HEALTH  PLAN  COMPANIES  AND HEALTH CARE PROVIDERS OPERATING IN THE SAME
GEOGRAPHIC AREA.
  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. MONITORING OF  AGREEMENTS.  THE  COMMISSIONER  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  COMMISSIONER 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 COMMISSIONER 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 THIR-
TY-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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