S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    912
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of  A. GOTTFRIED, STIRPE, HEVESI, ENGLEBRIGHT, FAHY,
   SEAWRIGHT, BENEDETTO, MAGNARELLI, WEPRIN, THIELE,  RODRIGUEZ,  PAULIN,
   BRAUNSTEIN,  CUSICK, OTIS, COLTON, QUART, GALEF, JEAN-PIERRE, PEOPLES-
   STOKES,  HUNTER,  STECK,  PERRY,   ABINANTI,   D. ROSENTHAL,   LAVINE,
   L. ROSENTHAL, DICKENS -- Multi-Sponsored by -- M. of A. COOK, EPSTEIN,
   GLICK,  LUPARDO, PICHARDO, SIMON, SOLAGES -- read once and referred to
   the Committee on Insurance
 
 AN ACT to amend the insurance law and the state finance law, in relation
   to creating the health insurance guaranty fund
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Subsection  (e) of section 7402 of the insurance law is
 amended to read as follows:
   (e) Is found, after examination, to be  in  such  condition  that  its
 further  transaction of business will be hazardous to its policyholders,
 creditors, or the public.   THIS SHALL  INCLUDE  A  HEALTH  INSURER,  AS
 DEFINED  IN  ARTICLE  EIGHTY-ONE  OF  THIS CHAPTER, THAT IS CONSISTENTLY
 UNABLE TO MEET THE REQUIREMENTS OF SECTION THREE  THOUSAND  TWO  HUNDRED
 TWENTY-FOUR-A OF THIS CHAPTER.
   §  2.  Section  7403  of  the insurance law is amended by adding a new
 subsection (e) to read as follows:
   (E)(1) UPON A DETERMINATION BY THE SUPERINTENDENT AND THE  REHABILITA-
 TOR  THAT  FUNDS  FROM THE NEW YORK HEALTH INSURANCE CONSUMER PROTECTION
 SECURITY FUND ARE NECESSARY TO MEET THE REQUIREMENTS OF ARTICLE  EIGHTY-
 ONE  OF THIS CHAPTER, THE SUPERINTENDENT SHALL MAKE AVAILABLE SUCH FUNDS
 AS ARE NECESSARY, PURSUANT TO THE REQUIREMENTS OF SUCH ARTICLE.
   (2) THE SUPERINTENDENT SHALL ADVANCE SUCH FUNDS AS  MAY  BE  NECESSARY
 PURSUANT TO SUBSECTION (D) OF SECTION EIGHT THOUSAND ONE HUNDRED FOUR OF
 THIS CHAPTER. THE REHABILITATOR AND THE SUPERINTENDENT SHALL ESTABLISH A
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              
             
                          
                                                                            LBD00244-01-1
 A. 912                              2
 
 PLAN,  IF  POSSIBLE, FOR REPAYMENT OF THE ADVANCE, AT A RATE OF INTEREST
 DETERMINED BY THE SUPERINTENDENT.
   (3)  ADVANCES, PURSUANT TO PARAGRAPH TWO OF THIS SUBSECTION, SHALL, IN
 ALL RESPECTS EXCEPT TO RATE OF INTEREST, BE SUBJECT TO THE PROVISIONS OF
 SECTION ONE THOUSAND THREE HUNDRED SEVEN OF THIS CHAPTER, PROVIDED  THAT
 IN  THE  EVENT THAT AN INSURER WHICH HAS RECEIVED AN ADVANCE PURSUANT TO
 THIS SUBSECTION IS SUBSEQUENTLY THE SUBJECT OF AN ORDER OF  LIQUIDATION,
 THE  CLAIM  OF  THE  FUND FOR THE ADVANCE AND ANY ACCRUED INTEREST SHALL
 HAVE PRIORITY ABOVE CLAIMS OF ALL  NONSECURED  CREDITORS,  PROVIDED  THE
 REQUIREMENTS  OF  ARTICLE  EIGHTY-ONE OF THIS CHAPTER HAVE BEEN MET, AND
 SHALL BE PAID IMMEDIATELY TO THE FUND OR AS SOON AS ASSETS ARE AVAILABLE
 THEREFOR.
   § 3. Paragraph 1 of subsection (f) of section 7405  of  the  insurance
 law, as amended by chapter 33 of the laws of 2005, is amended to read as
 follows:
   (1)  No  later  than  one  hundred  eighty days after a final order of
 liquidation with an adjudication of insolvency of an insurer by a  court
 of  competent jurisdiction of this state, the liquidator may in his sole
 discretion make application to the court for approval of a  proposal  to
 disburse  assets  out  of  marshalled  assets, from time to time as such
 assets become available, to any fund established by article  seventy-six
 of  this  chapter, article six-A of the workers' compensation law [and],
 any foreign entity performing a similar function, AND  ANY  FUND  ESTAB-
 LISHED PURSUANT TO ARTICLE EIGHTY-ONE OF THIS CHAPTER, PROVIDED THAT THE
 REQUIREMENTS  OF  SUBSECTION  (A)  OF SECTION EIGHT THOUSAND ONE HUNDRED
 THREE OF THIS CHAPTER HAVE BEEN MET, having obligations because of  such
 insolvency.  If  the  liquidator  determines that there are insufficient
 assets to disburse, the application authorized by this subsection  shall
 be  considered  satisfied  by  a  filing  by  the liquidator stating the
 reasons for this determination.
   § 4. The insurance law is amended by adding a new article 81  to  read
 as follows:
                                 ARTICLE 81
                      HEALTH INSURANCE GUARANTY FUND
 SECTION 8101. PURPOSE.
         8102. DEFINITIONS.
         8103.  NEW  YORK  HEALTH  INSURANCE CONSUMER PROTECTION SECURITY
                 FUND.
         8104. POWERS OF THE SUPERINTENDENT.
   § 8101. PURPOSE. THE PURPOSE OF THIS ARTICLE  IS  TO  PROTECT  COVERED
 INDIVIDUALS  AGAINST  THE  FAILURE  OR  INABILITY OF A HEALTH INSURER TO
 PERFORM ITS CONTRACTUAL  OBLIGATIONS  DUE  TO  FINANCIAL  IMPAIRMENT  OR
 INSOLVENCY. TO PROVIDE THIS PROTECTION, THE LEGISLATURE HEREBY CREATES A
 NEW  YORK HEALTH INSURANCE CONSUMER PROTECTION SECURITY FUND TO SERVE AS
 A GUARANTY FUND MECHANISM CAPABLE OF INSURING THAT THE  FINANCIAL  OBLI-
 GATIONS  OF HEALTH INSURERS TO THEIR ENROLLEES AND HEALTH CARE PROVIDERS
 ARE SATISFIED.
   § 8102. DEFINITIONS. AS USED IN THIS ARTICLE:
   (A) "FUND" MEANS THE NEW YORK  HEALTH  INSURANCE  CONSUMER  PROTECTION
 SECURITY FUND CREATED BY THIS ARTICLE.
   (B)  "HEALTH  INSURER"  MEANS  ANY  ORGANIZATION  OR  ENTITY PROVIDING
 REIMBURSEMENT FOR A COVERED EXPENSE UNDER ANY INDIVIDUAL, GROUP OR BLAN-
 KET POLICY OR CONTRACT COVERING THE KINDS OF INSURANCE DESCRIBED IN ITEM
 (I) OF PARAGRAPH THREE OF SUBSECTION (A) OF  SECTION  ONE  THOUSAND  ONE
 HUNDRED  THIRTEEN  OF THIS CHAPTER AND LICENSED UNDER ARTICLE THIRTY-TWO
 OR FORTY-TWO OF THIS CHAPTER, WHICH IS NOT A MEMBER OF,  OR  PARTICIPANT
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 IN,  OR A SUBSIDIARY OF A MEMBER OF OR PARTICIPANT IN, THE FUNDS CREATED
 PURSUANT TO ARTICLES SEVENTY-FIVE,  SEVENTY-SIX,  AND  SEVENTY-SEVEN  OF
 THIS  CHAPTER; A CORPORATION ORGANIZED UNDER ARTICLE FORTY-THREE OF THIS
 CHAPTER;  OR  AN  ORGANIZATION CERTIFIED UNDER ARTICLE FORTY-FOUR OF THE
 PUBLIC HEALTH LAW.
   (C) "CONTRACTUAL OBLIGATION" MEANS ANY PAYMENT OR  REIMBURSEMENT  OWED
 BY  A  HEALTH INSURER FOR A COVERED BENEFIT UNDER A POLICY, CONTRACT, OR
 COMPREHENSIVE HEALTH BENEFITS PLAN.
   (D) "IMPAIRED HEALTH INSURER" MEANS A  HEALTH  INSURER  FOR  WHOM  THE
 SUPERINTENDENT  HAS INITIATED A PROCEEDING UNDER THE PROVISIONS OF ARTI-
 CLE SEVENTY-FOUR OF THIS CHAPTER.
   (E) "COMMISSIONER" MEANS THE COMMISSIONER OF TAXATION AND FINANCE.
   § 8103. NEW YORK HEALTH INSURANCE CONSUMER PROTECTION  SECURITY  FUND.
 (A)  CONSISTENT  WITH THE PROVISIONS OF SUBDIVISION ONE OF SECTION NINE-
 TY-EIGHT-D OF THE STATE FINANCE LAW, THERE IS HEREBY ESTABLISHED  A  NEW
 YORK HEALTH INSURANCE CONSUMER PROTECTION SECURITY FUND. SUCH FUND SHALL
 BE USED IN THE PAYMENT OF UNPAID CONTRACTUAL OBLIGATIONS, IN WHOLE OR IN
 PART,  BY  AN  IMPAIRED  HEALTH  INSURER, AFTER APPLICATION OF ANY FUNDS
 AVAILABLE FROM A PROCEEDING IMPLEMENTED PURSUANT TO ARTICLE SEVENTY-FOUR
 OF THIS CHAPTER.
   (B)(1) PAYMENT INTO THE FUND BY HEALTH INSURERS SHALL BE MADE  THROUGH
 AN  ASSESSMENT  BASED  ON  THE PREMIUMS RECEIVED BY A HEALTH INSURER FOR
 BUSINESS IN THIS STATE FOR THE  MOST  RECENT  CALENDAR  YEAR  FOR  WHICH
 PREMIUM  INFORMATION IS AVAILABLE, EXCLUDING PREMIUMS RECEIVED FOR INDI-
 VIDUALS UNDER TITLE XIX OF THE SOCIAL SECURITY ACT.  THE  SUPERINTENDENT
 SHALL  ESTABLISH  ASSESSMENT  LEVELS  SUFFICIENT TO FULLY PAY ALL UNPAID
 CLAIMS OF AN IMPAIRED HEALTH INSURER, PURSUANT TO SUBSECTIONS  (B),  (C)
 AND  (D) OF SECTION EIGHT THOUSAND ONE HUNDRED FOUR OF THIS ARTICLE, AND
 TO REPAY ANY TRANSFERS MADE PURSUANT  TO  SUBDIVISION  FIVE  OF  SECTION
 SEVENTY-TWO OF THE STATE FINANCE LAW.
   (2)  THE  SUPERINTENDENT  MAY  EXEMPT,  ABATE OR DEFER, IN WHOLE OR IN
 PART, THE ASSESSMENT OF A HEALTH INSURER IF  THE  SUPERINTENDENT  DETER-
 MINES  THAT  PAYMENT OF THE ASSESSMENT WOULD ENDANGER THE ABILITY OF THE
 HEALTH INSURER TO FULFILL  ITS  CONTRACTUAL  OBLIGATIONS  OR  PLACE  THE
 HEALTH INSURER IN AN UNSAFE OR UNSOUND FINANCIAL CONDITION.
   (3)  IN  THE EVENT AN ASSESSMENT AGAINST A HEALTH INSURER IS EXEMPTED,
 ABATED OR DEFERRED, IN WHOLE OR  IN  PART,  THE  AMOUNT  BY  WHICH  THAT
 ASSESSMENT  IS  EXEMPTED,  ABATED  OR DEFERRED SHALL BE ASSESSED AGAINST
 OTHER HEALTH INSURERS IN A MANNER CONSISTENT WITH THIS SECTION.
   (C) REPAYMENT OF HEALTH INSURERS WHEN FUNDS BECOME  AVAILABLE  FROM  A
 PROCEEDING  PURSUANT  TO  ARTICLE  SEVENTY-FOUR OF THIS CHAPTER SHALL BE
 PROPORTIONATE TO THE CONTRIBUTION FROM EACH HEALTH INSURER.
   § 8104. POWERS OF THE SUPERINTENDENT.  (A)  FOR  ANY  IMPAIRED  HEALTH
 INSURER,  THE  SUPERINTENDENT  SHALL  DIRECT  THE  COMMISSIONER  TO MAKE
 PAYMENTS FROM THE NEW YORK HEALTH INSURANCE CONSUMER PROTECTION SECURITY
 FUND TO ENSURE THAT PAYMENTS TO  HEALTH  CARE  PROVIDERS,  OR  INDEMNITY
 PAYMENTS  TO COVERED INDIVIDUALS, ARE MADE IN FULL FOR SERVICES PROVIDED
 THAT WOULD NOT OTHERWISE BE FULLY  REIMBURSED  DESPITE  THE  PROCEEDINGS
 IMPLEMENTED  PURSUANT  TO ARTICLE SEVENTY-FOUR OF THIS CHAPTER. SERVICES
 PROVIDED EITHER PRIOR TO THE IMPLEMENTATION OF A PROCEEDING UNDER  ARTI-
 CLE  SEVENTY-FOUR  OF  THIS  CHAPTER  OR  AFTER  IMPLEMENTATION  OF SUCH
 PROCEEDING SHALL BE ELIGIBLE FOR REIMBURSEMENT, IN  PART  OR  IN  WHOLE,
 FROM  THE  FUND. PAYMENT IN FULL SHALL BE DETERMINED BY THE TERMS OF THE
 HEALTH INSURANCE CONTRACT, ANY CONTRACT BETWEEN A HEALTH  CARE  PROVIDER
 AND THE IMPAIRED HEALTH INSURER AND ANY APPLICABLE STATE OR FEDERAL LAWS
 OR  REGULATIONS  INCLUDING BUT NOT LIMITED TO PART H OF CHAPTER SIXTY OF
 A. 912                              4
 
 THE LAWS OF TWO THOUSAND FOURTEEN AND SECTION TWO THOUSAND NINETEEN-A OF
 THE PUBLIC HEALTH SERVICES ACT, AS AMENDED BY THE PATIENT PROTECTION AND
 AFFORDABLE CARE ACT.
   (B)  THE SUPERINTENDENT SHALL DIRECT THE COMMISSIONER TO MAKE PAYMENTS
 TO ENSURE THAT PAYMENT IN FULL IS MADE  TO  HEALTH  CARE  PROVIDERS,  OR
 INDEMNITY  PAYMENTS TO COVERED INDIVIDUALS, FOR SERVICES PROVIDED BEFORE
 THE IMPLEMENTATION OF PROCEEDINGS PURSUANT TO  ARTICLE  SEVENTY-FOUR  OF
 THIS  CHAPTER  WITHIN THIRTY DAYS OF THE IMPLEMENTATION OF SUCH PROCEED-
 ING.
   (C) THE SUPERINTENDENT SHALL DIRECT THE COMMISSIONER  TO  ENSURE  THAT
 PAYMENT  IN FULL IS MADE TO HEALTH CARE PROVIDERS, OR INDEMNITY PAYMENTS
 TO COVERED INDIVIDUALS, FOR SERVICES PROVIDED AFTER  THE  IMPLEMENTATION
 OF  PROCEEDINGS  PURSUANT TO ARTICLE SEVENTY-FOUR OF THIS CHAPTER WITHIN
 THIRTY DAYS OF RECEIPT OF A CLAIM.
   (D) IF NECESSARY, THE SUPERINTENDENT SHALL DIRECT THE COMMISSIONER  TO
 ADVANCE   MONIES  FROM  THE  FUND  TO  COMPLY  WITH  THE  PROVISIONS  OF
 SUBSECTIONS (B) AND (C) OF THIS SECTION.
   (E) THE SUPERINTENDENT SHALL NOTIFY THE DIRECTOR OF THE BUDGET OF  THE
 NEED  FOR  MONIES  TO  BE  TRANSFERRED  PURSUANT  TO SUBDIVISION FIVE OF
 SECTION SEVENTY-TWO OF THE STATE FINANCE LAW TO MEET THE REQUIREMENTS OF
 SUBSECTIONS (B), (C) AND (D) OF THIS SECTION.
   (F) THE SUPERINTENDENT SHALL DIRECT THE COMMISSIONER TO USE THE MONIES
 OF THE FUND TO REPAY ANY TRANSFERS MADE PURSUANT TO SUBDIVISION FIVE  OF
 SECTION  SEVENTY-TWO  OF THE STATE FINANCE LAW, WHEN SUCH FUNDS ARE PAID
 PURSUANT TO SUBSECTION (B) OF SECTION EIGHT THOUSAND ONE  HUNDRED  THREE
 OF THIS ARTICLE.
   (G)  THE  SUPERINTENDENT  SHALL  ENSURE  THAT  THE COST OF ASSESSMENTS
 ESTABLISHED PURSUANT TO SUBDIVISION (B) OF SECTION  EIGHT  THOUSAND  ONE
 HUNDRED THREE OF THIS ARTICLE ARE NOT INCLUDED IN PREMIUMS BY ANY HEALTH
 INSURER.
   §  5.  Section  72 of the state finance law is amended by adding a new
 subdivision 5 to read as follows:
   5. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, UPON  NOTIFI-
 CATION  FROM  THE  SUPERINTENDENT  OF FINANCIAL SERVICES OF THE NEED FOR
 MONIES TO MEET THE REQUIREMENTS OF  SUBSECTIONS  (B),  (C)  AND  (D)  OF
 SECTION EIGHT THOUSAND ONE HUNDRED FOUR OF THE INSURANCE LAW, THE DIREC-
 TOR OF THE BUDGET SHALL TRANSFER SUCH FUNDS AS ARE NECESSARY.
   §  6. The state finance law is amended by adding a new section 98-d to
 read as follows:
   § 98-D. NEW YORK HEALTH INSURANCE CONSUMER PROTECTION  SECURITY  FUND.
 1. THERE IS HEREBY ESTABLISHED IN THE CUSTODY OF THE COMMISSIONER OF THE
 DEPARTMENT  OF  TAXATION  AND  FINANCE  AN  ACCOUNT OF THE MISCELLANEOUS
 SPECIAL REVENUE FUND TO BE  KNOWN  AS  THE  NEW  YORK  HEALTH  INSURANCE
 CONSUMER PROTECTION SECURITY FUND ACCOUNT.
   2.  NOTWITHSTANDING ANY OTHER LAW, RULE OR REGULATION TO THE CONTRARY,
 THE COMMISSIONER OF  TAXATION  AND  FINANCE  IS  HEREBY  AUTHORIZED  AND
 DIRECTED  TO  RECEIVE  FOR  DEPOSIT TO THE CREDIT OF THE NEW YORK HEALTH
 INSURANCE CONSUMER PROTECTION SECURITY FUND ACCOUNT, ASSESSMENTS IMPOSED
 PURSUANT TO ARTICLE EIGHTY-ONE OF THE INSURANCE LAW AND  TRANSFERS  FROM
 THE  GENERAL FUND PURSUANT TO SUBDIVISION FIVE OF SECTION SEVENTY-TWO OF
 THIS ARTICLE.
   3. THE COMMISSIONER OF TAXATION AND FINANCE SHALL MAKE  PAYMENTS  FROM
 THE  MONIES  ON  DEPOSIT  IN  THE  NEW  YORK  HEALTH  INSURANCE CONSUMER
 PROTECTION SECURITY FUND ACCOUNT IN THE AMOUNTS AND AT THE TIMES  DETER-
 MINED BY THE SUPERINTENDENT OF INSURANCE.
 A. 912                              5
 
   § 7. This act shall take effect immediately and shall be applicable to
 any  health  insurer  determined  by  the  superintendent  of  financial
 services, on or after such effective date, to be  insolvent  within  the
 meaning of section 1309 of the insurance law.