S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9865
 
                           I N  A S S E M B L Y
 
                              April 19, 2022
                                ___________
 
 Introduced by M. of A. WEPRIN -- read once and referred to the Committee
   on Insurance
 
 AN ACT to enact the Health Care Nondiscrimination Act of 2021
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "Health Care Nondiscrimination Act of 2021".
   §  2.  Legislative findings. All residents should have freedom to seek
 the care, treatment and provider of their choosing with respect to their
 healthcare if treatment of a  health  condition  is  within  a  licensed
 healthcare provider's scope of practice. Given the historic bias against
 nonpharmacological-based  healthcare in New York, it shall be the policy
 of the state to redress this imbalance by removing barriers and  enhanc-
 ing  access  to  such services. First, a health insurance plan or health
 benefit should not discriminate  against  licensed,  nonpharmacological-
 based  healthcare  providers  regarding fee reimbursement or payment for
 the provision of similar or like-kind healthcare  services.  Second,  to
 further  reverse  this  bias  and  promote  the public health, the state
 should promote licensed, nonpharmacological-based healthcare services to
 ensure that the public has full and unfettered access to  the  evidence-
 based  benefits  of  such services, including the treatment of substance
 abuse disorders to combat the opioid crisis. Third, all residents should
 have equal access to nonpharmacological-based  healthcare  alternatives,
 whether  through  self-funded  healthcare plans or plans which are fully
 funded through insurance,  or  other  contracts,  when  making  personal
 healthcare  decisions. Finally, to better ensure compliance and enforce-
 ment, the departments of health, financial  services  and  labor  should
 have  the  ability  to  impose  substantial  fines and penalties against
 insurers, healthcare plans and healthcare organizations that continue to
 deny patients' freedom of choice regarding their healthcare.
   § 3. Definitions. For the purposes of this act,  the  following  terms
 shall have the following meanings:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11882-01-1
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   1.  "Licensed health care provider or providers" shall mean any person
 duly licensed under articles 132, 136, 153,  155,  156  or  160  of  the
 education law.
   2. "Managed care product" shall mean: (i) a policy which requires that
 medical  or  other  health care services covered under the policy, other
 than emergency care services, be provided by, or pursuant to, a referral
 from a primary care provider and that services provided pursuant to such
 a referral be rendered by a licensed health care provider  participating
 in  the  insurer's  managed  care  provider network; (ii) the in-network
 portion of a contract which requires that medical or other  health  care
 services covered under the contract, other than emergency care services,
 be  provided by, or pursuant to, a referral from a primary care provider
 and that services provided pursuant to such a referral be rendered by  a
 licensed  health  care  provider  participating in the insurer's managed
 care provider network, in order for the insured to be  entitled  to  the
 maximum  reimbursement  under  the  contract; and (iii) other healthcare
 plans through which each member of an enrolled population is entitled to
 receive comprehensive in-network and out-of-network health services,  in
 consideration  for  a basic advance or periodic charge, which may or may
 not require a referral for such services.
   3. "Health services plan provider" shall mean an insurer or any organ-
 ization or agency that provides health  services  or  benefits  under  a
 policy, plan or other contract.
   §  4.  Insurance  and  health plan equality and non-discrimination. 1.
 Every policy or plan which is a managed care product, as  such  term  is
 defined  in section three of this act, that provides coverage for physi-
 cian services in a physician's office, every policy or plan which  is  a
 managed  care  product that provides major medical or similar comprehen-
 sive-type coverage and every contract issued by a health service  corpo-
 ration  or  a  medical  expense indemnity corporation which is a managed
 care product that includes coverage for physician services in  a  physi-
 cian's  office, shall include coverage for licensed health care provider
 services.   Licensed health care provider services  may  be  subject  to
 reasonable  deductible,  co-payment and co-insurance amounts, reasonable
 fee or benefit limits and reasonable utilization review,  provided  that
 any such amounts, limits and review shall not:
   (a)  function  to  direct treatment in a manner discriminative against
 any licensed health care provider;
   (b) create underwriting standards that are more  restrictive  for  any
 licensed health care provider than care provided by other health profes-
 sionals licensed under title 8 of the education law;
   (c)  apply  cost  containment,  quality  or  performance  measures  to
 licensed health care providers unequally, as compared with those applied
 to primary care providers;
   (d) impose a co-payment or  co-insurance  amount  on  an  insured  for
 services  provided  by any licensed health care provider that is greater
 than the co-payment or co-insurance amount imposed on an insured for the
 same or similar services provided by a primary care provider; and
   (e) individually and  collectively  be  more  restrictive  than  those
 applicable  under the same policy for care or services provided by other
 health professionals in the diagnosis, treatment and management  of  the
 same or similar conditions, injuries, complaints, disorders or ailments,
 even  if differing nomenclature is used to describe the condition, inju-
 ry, complaint, disorder or ailment.
   2. Every policy or plan which includes coverage for physician services
 in a physician's office, every  policy  or  plan  which  provides  major
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 medical  or  similar  comprehensive-type  coverage, other than a managed
 care product as such term is defined in section three of this  act,  and
 every contract issued by a health service corporation or medical expense
 indemnity  corporation which includes coverage for physician services in
 a physician's office other than a  managed  care  product  and  benefits
 provided  under  articles  2  and 3 of the workers' compensation law and
 article 51 of the insurance law, shall  include  coverage  for  licensed
 health  care  provider  services. Licensed health care provider services
 may be subject to reasonable  deductible,  co-payment  and  co-insurance
 amounts,  reasonable  fee  or benefit limits, and reasonable utilization
 review, provided that any such amounts, limits and review shall not:
   (a) function to direct treatment in a  manner  discriminative  against
 any licensed health care provider;
   (b)  create  underwriting  standards that are more restrictive for any
 licensed health care provider than care provided by other health profes-
 sionals licensed under title 8 of the education law;
   (c)  apply  cost  containment,  quality  or  performance  measures  to
 licensed  health  care  provider  care  unequally as compared with those
 applied to primary care providers;
   (d) impose a co-payment or  co-insurance  amount  on  an  insured  for
 services  provided  by any licensed health care provider that is greater
 than the co-payment or co-insurance amount imposed on an insured for the
 same or similar services provided by a primary care provider; and
   (e) individually and  collectively  be  more  restrictive  than  those
 applicable  under the same policy for care or services provided by other
 health professionals in the diagnosis, treatment and management  of  the
 same or similar conditions, injuries, complaints, disorders or ailments,
 even  if differing nomenclature is used to describe the condition, inju-
 ry, complaint, disorder or ailment.
   3. The contract between a health  maintenance  organization,  as  such
 term  is defined in article 44 of the public health law and an enrollee,
 shall be subject to regulation by the superintendent of  the  department
 of  financial  services  as  if  it  were  a health insurance subscriber
 contract and shall include, but shall not be limited  to,  all  mandated
 benefits required by this act.
   4.  Any person, partnership, corporation, limited liability company or
 other organization licensed under the laws of the  state  of  New  York,
 which  provides  or  contracts  to  provide  health and accident benefit
 coverage as a self-insurer for its  employees,  shareholders,  or  other
 persons shall be subject to the provisions of this act.
   5.  The coverage required by this section shall not be abridged by any
 regulation promulgated by the superintendent of financial services,  the
 commissioner of health or the chair of the workers' compensation board.
   §  5.  Fee  parity. 1. A health services plan provider shall not pay a
 licensed health care provider less  for  care  and  services  identified
 under  current  procedural terminology, as listed in a nationally recog-
 nized services and procedures code book, such as the most recent  Ameri-
 can  Medical  Association procedural terminology code book, than it pays
 any other individual licensed under title 8 of the education law, except
 as provided in subdivisions two and three  of  this  section.  A  health
 services  plan  provider  shall  not circumvent the requirements of this
 section by creating a provider-specific code not listed in a  nationally
 recognized code book otherwise used by such health services plan provid-
 er  for  payment,  or  by  creating or using any other provider-specific
 billing code or policy not listed  in  a  nationally  recognized  coding
 system otherwise used by the health services plan provider.
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   2.  This  section shall not affect a health service plan's ability to:
 (a) implement a health care quality improvement program to promote  cost
 effective and clinically efficacious health care services, including but
 not  limited  to,  pay-for-performance  payment  methodologies and other
 programs fairly applied to all individuals licensed under title 8 of the
 education   law,   that  are  designed  to  promote  evidence-based  and
 research-based practices; (b) establish  health  care  network  adequacy
 standards; and (c) pay a licensed health care provider less than another
 provider  licensed  under title 8 of the education law for procedures or
 services under the same code based upon geographic  differences  in  the
 cost of maintaining a practice.
   3. This section shall not expand the scope of practice of any licensed
 health care provider.
   §  6.  Treatment  of  pain.  1. When a patient seeks treatment for any
 neuromusculoskeletal condition that causes  pain  where  a  health  care
 practitioner  considers  an  opioid  treatment,  the  practitioner shall
 discuss with the patient and, as appropriate, refer  or  prescribe  non-
 pharmacological  treatment alternatives, before starting a patient on an
 opioid. For purposes of  this  section,  "non-pharmacological  treatment
 alternatives"  shall include chiropractic, acupuncture, massage therapy,
 physical therapy, psychology, occupational therapy, cognitive behavioral
 therapy, and non-clinical activities such as exercise. The  health  care
 practitioner shall further advise that some treatment options may not be
 covered by the patient's health insurance plan or coverage.
   2.  Nothing in this section shall be deemed to require that all non-o-
 pioid treatment alternatives  set  forth  in  subdivision  one  of  this
 section  must  be  exhausted  prior  to  the patient receiving an opioid
 prescription.
   3. The requirements of this section shall not apply to patients  being
 treated  under  any  of  the following circumstances: cancer; hospice or
 other end-of-life care; post-surgery treatment immediately  following  a
 surgical  procedure;  or  a  medical  emergency.  For  purposes  of this
 section, "medical emergency" shall mean an acute injury or illness  that
 poses an immediate risk to a person's life or health.
   §  7.  Performing certain services including certifying disability and
 employment by school districts. 1. To qualify as physically disabled for
 the purposes of compliance with section 459 of  the  real  property  tax
 law,  an  individual  may  also  submit to the assessor, as such term is
 defined in subdivision 3 of section 102 of the real property tax law,  a
 certified  statement  from  any  licensed health care provider on a form
 prescribed and made  available  by  the  commissioner  of  taxation  and
 finance which states that the individual has a physical impairment which
 substantially  limits one or more of such individual's major life activ-
 ities.
   2. The commissioner of motor vehicles  may  issue  license  plates  to
 severely  disabled persons in accordance with section 404-a of the vehi-
 cle and traffic law upon the receipt of proof of an  individual's  disa-
 bility  or  the  disability  of  a  family  member,  as certified by any
 licensed health care provider.
   3. "Health professionals," as such term is defined in section  902  of
 the education law, with respect to the employment of such individuals by
 school districts, shall also include any licensed health care provider.
   § 8. Enforcement and penalties. 1. Every health services plan provider
 shall  annually  and  no  later than February first of each year, file a
 report with the  department  of  health,  the  department  of  financial
 services  and  the department of labor that demonstrates compliance with
 A. 9865                             5
 
 the provisions of this act. The department of health, the department  of
 financial  services  and  the  department  of  labor shall prescribe the
 manner of filing and the content and format of the report required under
 this  section  and shall make such filed reports available to the public
 on each department's respective  website.  If  a  health  services  plan
 provider  that  is required to file a report under this section does not
 file such report by the time required, the  department  of  health,  the
 department of financial services or the department of labor shall impose
 a  fine  against  the health services plan provider of not less than one
 thousand dollars per day for each day such report is overdue.
   2. Any person seeking treatment by a licensed health care provider who
 has suffered loss or injury by reason of any violation of this act by  a
 health  services  plan  provider shall have a private right of action to
 enjoin such unlawful act or practice and to recover his  or  her  actual
 damages  sustained  because of any violation of this act. Actions may be
 brought by one or more patients or licensed health  care  providers  for
 and  on  behalf of themselves, and other persons or licensed health care
 providers similarly situated. A court of competent jurisdiction may,  in
 its  discretion,  award  punitive  damages,  if the court finds that the
 defendant health services plan provider willfully or knowingly  violated
 this  act.  The  court  may  also  award reasonable attorneys' fees to a
 prevailing plaintiff.
   § 9. This act shall take effect immediately.