S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8404
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 16, 2019
                                ___________
 
 Introduced by M. of A. CAHILL -- read once and referred to the Committee
   on Codes
 
 AN  ACT  to  amend the financial services law, the public health law and
   the insurance law, in relation to establishing protections from excess
   hospital charges; and to amend a chapter of the laws of 2019, amending
   the financial services law relating to establishing  protections  from
   excess  hospital  charges, as proposed in legislative bills numbers S.
   3171-A and A.  264-B, in relation to the effectiveness thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 605 of the financial services law, as amended by a
 chapter of the laws of 2019, amending the financial services law  relat-
 ing  to  establishing  protections  from  excess  hospital  charges,  as
 proposed in legislative bills numbers S. 3171-A and A. 264-B, is amended
 to read as follows:
   § 605.  Dispute  resolution  for  emergency  services.  (a)  Emergency
 services for an insured. (1) When a health care plan receives a bill for
 emergency  services  from  a  non-participating  physician  or hospital,
 including a bill for inpatient services which follow an  emergency  room
 visit,  the  health  care plan shall pay an amount that it determines is
 reasonable for the emergency services rendered by the  non-participating
 physician  or  hospital,  in  accordance with section three thousand two
 hundred twenty-four-a of the insurance law,  except  for  the  insured's
 co-payment, coinsurance or deductible, if any, and shall ensure that the
 insured  shall  incur  no  greater out-of-pocket costs for the emergency
 services than the insured  would  have  incurred  with  a  participating
 physician  or hospital pursuant to subsection (c) of section three thou-
 sand two hundred forty-one of the insurance law.  IF AN INSURED  ASSIGNS
 BENEFITS  TO  A  NON-PARTICIPATING  HOSPITAL  IN  RELATION  TO EMERGENCY
 SERVICES PROVIDED BY SUCH NON-PARTICIPATING HOSPITAL,  THE  NON-PARTICI-
 PATING HOSPITAL MAY BILL THE HEALTH CARE PLAN FOR THE EMERGENCY SERVICES
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03101-13-9

 A. 8404                             2
 
 RENDERED.  UPON  RECEIPT OF THE BILL, THE HEALTH CARE PLAN SHALL PAY THE
 NON-PARTICIPATING HOSPITAL THE AMOUNT PRESCRIBED BY THIS SECTION AND ANY
 SUBSEQUENT AMOUNT DETERMINED TO BE OWED TO THE HOSPITAL IN  RELATION  TO
 THE EMERGENCY SERVICES PROVIDED.
   (2)  A  non-participating  physician or hospital or a health care plan
 may submit a dispute regarding a fee or payment for  emergency  services
 for review to an independent dispute resolution entity.  [In cases where
 a  health  care  plan submits a dispute regarding a fee for payment of a
 non-participating hospital's emergency services, the  health  care  plan
 shall,  after  the initial payment, pay any additional amounts it deter-
 mines is reasonable directly to the non-participating hospital.]
   (3) The independent dispute resolution entity shall  make  a  determi-
 nation within thirty days of receipt of the dispute for review.
   (4)  In  determining  a  reasonable  fee for the services rendered, an
 independent dispute resolution entity shall  select  either  the  health
 care  plan's  payment or the non-participating physician's or hospital's
 fee. The independent dispute resolution  entity  shall  determine  which
 amount  to  select  based  upon  the conditions and factors set forth in
 section six hundred four of this  article.  If  an  independent  dispute
 resolution  entity  determines,  based on the health care plan's payment
 and the non-participating physician's or hospital's fee, that a  settle-
 ment  between  the  health  care plan and non-participating physician or
 hospital is reasonably likely, or  that  both  the  health  care  plan's
 payment  and  the non-participating physician's or hospital's fee repre-
 sent unreasonable extremes,  then  the  independent  dispute  resolution
 entity  may  direct both parties to attempt a good faith negotiation for
 settlement. The health care  plan  and  non-participating  physician  or
 hospital  may  be  granted up to ten business days for this negotiation,
 which shall run concurrently with the  thirty  day  period  for  dispute
 resolution.
   (b)  Emergency  services  for  a patient that is not an insured. (1) A
 patient that is not an insured or the patient's physician may  submit  a
 dispute  regarding  a  fee for emergency services for review to an inde-
 pendent dispute resolution entity upon approval of the superintendent.
   (2) An independent dispute resolution entity shall determine a reason-
 able fee for the services based upon the same conditions and factors set
 forth in section six hundred four of this article.
   (3) A patient that is not an insured shall not be required to pay  the
 physician's  or  hospital's  fee  in  order to be eligible to submit the
 dispute for review to an independent dispute resolution entity.
   (c) The determination of  an  independent  dispute  resolution  entity
 shall  be  binding  on  the  health care plan, physician or hospital and
 patient, and shall be admissible in any  court  proceeding  between  the
 health  care  plan, physician or hospital or patient, or in any adminis-
 trative proceeding between this state and the physician or hospital.
   (d) The provisions of this section shall not apply to  hospitals  that
 had  at  least  sixty  percent  of  inpatient  discharges annually which
 consisted of medicaid,  uninsured,  and  dual  eligible  individuals  as
 determined  by  the  department of health in its determination of safety
 net hospitals.
   (E) FOR PURPOSES OF THE HOSPITAL PAYMENT PURSUANT TO SUBSECTION (A) OF
 THIS SECTION, THE AMOUNT THE HEALTH CARE PLAN SHALL PAY TO THE  HOSPITAL
 SHALL BE AT LEAST TWENTY-FIVE PERCENT GREATER THAN THE AMOUNT THE HEALTH
 CARE  PLAN  WOULD  HAVE  PAID  FOR  THE  CLAIM  HAD THE HOSPITAL BEEN IN
 NETWORK, BASED ON THE MOST RECENT CONTRACT BETWEEN THE HEALTH CARE  PLAN
 AND  THE  HOSPITAL. PROVIDED HOWEVER, THE AMOUNT PAID BY THE HEALTH CARE

 A. 8404                             3
 
 PLAN PURSUANT TO THIS SUBSECTION SHALL NOT  PREJUDICE  EITHER  PARTY  OR
 PRECLUDE  EITHER  PARTY  FROM SUBMITTING A DISPUTE TO THE DISPUTE RESOL-
 UTION ENTITY RELATING TO THE PAYMENT TO THE  HOSPITAL  OR  PRECLUDE  THE
 HOSPITAL FROM SEEKING ADDITIONAL PAYMENT FROM THE HEALTH CARE PLAN PRIOR
 TO  A DECISION BY THE DISPUTE RESOLUTION ENTITY. TO THE EXTENT THE PRIOR
 CONTRACT BETWEEN THE HOSPITAL AND HEALTH CARE PLAN EXPIRED GREATER  THAN
 TWELVE  MONTHS  PRIOR  TO THE PAYMENT OF THE DISPUTED CLAIM, THE PAYMENT
 AMOUNT SHALL BE ADJUSTED BASED UPON THE MEDICAL  CONSUMER  PRICE  INDEX.
 THE  PROVISIONS  OF  THIS  SUBSECTION SHALL ONLY APPLY TO THE EXTENT THE
 HEALTH CARE PLAN AND HOSPITAL HAD PREVIOUSLY ENTERED INTO A  PARTICIPAT-
 ING PROVIDER AGREEMENT.
   §  2. Section 604 of the financial services law, as amended by a chap-
 ter of the laws of 2019, amending the financial services law relating to
 establishing protections from excess hospital charges,  as  proposed  in
 legislative  bills numbers S. 3171-A and A. 264-B, is amended to read as
 follows:
   § 604. Criteria for determining a reasonable fee. In  determining  the
 appropriate  amount  to  pay  for  a health care service, an independent
 dispute resolution entity shall consider all relevant  factors,  includ-
 ing:
   (a)  whether there is a gross disparity between the fee charged by the
 [health care provider] PHYSICIAN OR HOSPITAL for  services  rendered  as
 compared to:
   (1)  fees  paid  to  the  involved [health care provider] PHYSICIAN OR
 HOSPITAL for the same services rendered by the  [health  care  provider]
 PHYSICIAN  OR  HOSPITAL  to other patients in health care plans in which
 the [health care provider] PHYSICIAN OR HOSPITAL is  not  participating,
 and
   (2)  in  the case of a dispute involving a health care plan, fees paid
 by the health care plan to reimburse similarly  qualified  [health  care
 providers]  PHYSICIANS  OR  HOSPITALS  for the same services in the same
 region who are not participating with the health care plan;
   (b) the level of training, education and  experience  of  the  [health
 care  provider]  PHYSICIAN,  AND IN THE CASE OF A HOSPITAL, THE TEACHING
 STAFF, SCOPE OF SERVICES AND CASE MIX;
   (c) the [health care  provider's]  PHYSICIAN'S  AND  HOSPITAL'S  usual
 charge  for  comparable  services with regard to patients in health care
 plans in which the [health care provider] PHYSICIAN OR HOSPITAL  is  not
 participating;
   (d) the circumstances and complexity of the particular case, including
 time and place of the service;
   (e)  individual patient characteristics; and, with regard to physician
 services,
   (f) the usual and customary cost of the service.
   § 3. Section 4406-c of the public health law is amended  by  adding  a
 new subdivision 5-e to read as follows:
   5-E.  AT  LEAST  SIXTY  DAYS  PRIOR  TO  THE TERMINATION OF A CONTRACT
 BETWEEN A HOSPITAL AND A HEALTH CARE PLAN, THE PARTIES SHALL  UTILIZE  A
 MUTUALLY  AGREED  UPON  MEDIATOR  TO ASSIST IN RESOLVING ANY OUTSTANDING
 CONTRACTUAL ISSUES. THE RESULTS OF THE MEDIATION SHALL NOT BE BINDING ON
 THE PARTIES.
   § 4. Section 3217-b of the insurance law is amended by  adding  a  new
 subsection (l) to read as follows:
   (L) AT LEAST SIXTY DAYS PRIOR TO THE TERMINATION OF A CONTRACT BETWEEN
 A  HOSPITAL  AND AN INSURER, THE PARTIES SHALL UTILIZE A MUTUALLY AGREED

 A. 8404                             4
 
 UPON MEDIATOR TO ASSIST IN RESOLVING ANY OUTSTANDING CONTRACTUAL ISSUES.
 THE RESULTS OF THE MEDIATION SHALL NOT BE BINDING ON THE PARTIES.
   §  5.  Section  4325  of  the insurance law is amended by adding a new
 subsection (m) to read as follows:
   (M) AT LEAST SIXTY DAYS PRIOR TO THE TERMINATION OF A CONTRACT BETWEEN
 A HOSPITAL AND AN ORGANIZATION, THE PARTIES  SHALL  UTILIZE  A  MUTUALLY
 AGREED  UPON MEDIATOR TO ASSIST IN RESOLVING ANY OUTSTANDING CONTRACTUAL
 ISSUES. THE RESULTS OF  THE  MEDIATION  SHALL  NOT  BE  BINDING  ON  THE
 PARTIES.
   §  6.  Section 4 of a chapter of the laws of 2019, amending the finan-
 cial services law  relating  to  establishing  protections  from  excess
 hospital charges, as proposed in legislative bills numbers S. 3171-A and
 A. 264-B, is amended to read as follows:
   § 4. This act shall take effect [immediately] JANUARY 1, 2020.
   §  7.  This act shall take effect immediately; provided, however, that
 sections one, two, three, four, and five of this act shall  take  effect
 on  the  same  date  and  in the same manner as a chapter of the laws of
 2019, amending the  financial  services  law  relating  to  establishing
 protections  from  excess  hospital  charges, as proposed in legislative
 bills numbers S. 3171-A and A. 264-B, takes effect.