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This entry was published on 2022-04-22
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SECTION 3217-B
Prohibitions
Insurance (ISC) CHAPTER 28, ARTICLE 32
§ 3217-b. Prohibitions. (a) No insurer subject to this article shall
by contract, written policy or written procedure prohibit or restrict
any health care provider from disclosing to any insured, designated
representative or, where appropriate, prospective insured, (hereinafter
collectively referred to as insured) any information that such provider
deems appropriate regarding:

(1) a condition or a course of treatment with an insured including the
availability of other therapies, consultations, or tests; or

(2) the provisions, terms, or requirements of the insurer's products
as they relate to the insured.

(b) No insurer subject to this article shall by contract, written
policy, written procedure or practice prohibit or restrict any health
care provider from filing a complaint, making a report or commenting to
an appropriate governmental body regarding the policies or practices of
such insurer which the provider believes may negatively impact upon the
quality of, or access to, patient care. Nor shall an insurer subject to
this article take any adverse action, including but not limited to
refusing to renew or execute a contract or agreement with a health care
provider as retaliation against a health care provider for filing a
complaint, making a report or commenting to an appropriate governmental
body regarding policies or practices of such insurer which may violate
this chapter including paragraphs thirty, as added by chapter forty-one
of the laws of 2014, thirty-one, thirty-one-a and thirty-five of
subsection (i) of section thirty-two hundred sixteen and paragraphs
five, six, seven, seven-a and seven-b of subsection (l) of section
thirty-two hundred twenty-one of this article.

(c) No insurer subject to this article shall by contract, written
policy or written procedure prohibit or restrict any health care
provider from advocating to the insurer on behalf of the insured for
approval or coverage of a particular course of treatment or for the
provision of health care services.

(d) No contract or agreement between an insurer subject to this
article and a health care provider shall contain any clause purporting
to transfer to the health care provider by indemnification or otherwise
any liability relating to activities, actions or omissions of the
insurer as opposed to the health care provider.

(e) Contracts entered into between an insurer and a health care
provider shall include terms which prescribe:

(1) the method by which payments to a provider, including any
prospective or retrospective adjustments thereto, shall be calculated;

(2) the time periods within which such calculations will be completed,
the dates upon which any such payments and adjustments shall be
determined to be due, and the dates upon which any such payments and
adjustments will be made;

(3) a description of the records or information relied upon to
calculate any such payments and adjustments, and a description of how
the provider can access a summary of such calculations and adjustments;

(4) the process to be employed to resolve disputed incorrect or
incomplete records or information and to adjust any such payments and
adjustments which have been calculated by relying on any such incorrect
or incomplete records or information so disputed; provided, however,
that nothing herein shall be deemed to authorize or require the
disclosure of personally identifiable patient information or information
related to other individual health care providers or the plan's
proprietary data collection systems, software or quality assurance or
utilization review methodologies; and

(5) the right of either party to the contract to seek resolution of a
dispute arising pursuant to the payment terms of such contracts through
a proceeding under article seventy-five of the civil practice law and
rules.

(f) No contract entered into between an insurer and a health care
provider shall be enforceable if it includes terms which transfer
financial risk to providers, in a manner inconsistent with the
provisions of paragraph (c) of subdivision one of section forty-four
hundred three of the public health law, or penalize providers for
unfavorable case mix so as to jeopardize the quality of or insureds'
appropriate access to medically necessary services; provided, however,
that payment at less than prevailing fee for service rates or capitation
shall not be deemed or presumed prima facie to jeopardize quality or
access.

(g)(1) No insurer shall implement an adverse reimbursement change to a
contract with a health care professional that is otherwise permitted by
the contract, unless, prior to the effective date of the change, the
insurer gives the health care professional with whom the insurer has
directly contracted and who is impacted by the adverse reimbursement
change, at least ninety days written notice of the change. If the
contracting health care professional objects to the change that is the
subject of the notice by the insurer, the health care professional may,
within thirty days of the date of the notice, give written notice to the
insurer to terminate his or her contract with the insurer effective upon
the implementation date of the adverse reimbursement change. For the
purposes of this subsection, the term "adverse reimbursement change"
shall mean a proposed change that could reasonably be expected to have a
material adverse impact on the aggregate level of payment to a health
care professional, and the term "health care professional" shall mean a
health care professional licensed, registered or certified pursuant to
title eight of the education law. The notice provisions required by this
subsection shall not apply where: (A) such change is otherwise required
by law, regulation or applicable regulatory authority, or is required as
a result of changes in fee schedules, reimbursement methodology or
payment policies established by a government agency or by the American
Medical Association's current procedural terminology (CPT) codes,
reporting guidelines and conventions; or (B) such change is expressly
provided for under the terms of the contract by the inclusion of or
reference to a specific fee or fee schedule, reimbursement methodology
or payment policy indexing mechanism.

(2) Nothing in this subsection shall create a private right of action
on behalf of a health care professional against an insurer for
violations of this subsection.

(h) Any contract provision, written policy or written procedure in
violation of this section shall be deemed to be void and unenforceable.

* (i) If a contract between an insurer and a hospital is not renewed
or is terminated by either party, the parties shall continue to abide by
the terms of such contract, including reimbursement terms, for a period
of two months from the effective date of termination or, in the case of
a non-renewal, from the end of the contract period. Notice shall be
provided to all insureds potentially affected by such termination or
non-renewal within fifteen days after commencement of the two-month
period. The commissioner of health shall have the authority to waive the
two-month period upon the request of either party to a contract that is
being terminated for cause. This subsection shall not apply where both
parties mutually agree in writing to the termination or non-renewal and
the insurer provides notice to the insured at least thirty days in
advance of the date of contract termination.

* NB Repealed June 30, 2023

(j) (1) No insurer shall by contract, written policy or procedure, or
by any other means, deny payment to a general hospital certified
pursuant to article twenty-eight of the public health law for a claim
for medically necessary inpatient services, observation services, or
emergency department services provided by a general hospital solely on
the basis that the general hospital did not comply with certain
administrative requirements of such insurer with respect to those
services.

(2) Nothing in this subsection shall preclude a general hospital and
an insurer from agreeing to certain administrative requirements relating
to payment for inpatient services, observation services, or emergency
department services, including but not limited to timely notification
that medically necessary inpatient services have been provided and to
reductions in payment for failure to comply with certain administrative
requirements including timely notification; provided, however that: (A)
any requirement for timely notification must provide for a reasonable
extension of timeframes for notification for services provided on
weekends or federal holidays, (B) any agreed to reduction in payment for
failure to meet administrative requirements, including timely
notification shall not exceed seven and one-half percent of the payment
amount otherwise due for the services provided, and (C) any agreed to
reduction in payment for failure to meet administrative requirements
including timely notification shall not be imposed if the patient's
insurance coverage could not be determined by the hospital after
reasonable efforts at the time the services were provided.

(3) The provisions of this subsection shall not apply to the denial of
a claim: (A) based on a reasonable belief by an insurer of fraud or
intentional misconduct resulting in misrepresentation of patient
diagnosis or the services provided, or abusive billing; (B) when
required by a state or federal government program or coverage that is
provided by this state or a municipality thereof to its respective
employees, retirees or members; (C) that is a duplicate claim, that is a
claim submitted late pursuant to subsection (g) of section thirty-two
hundred twenty-four-a of this article, or is for services for a benefit
that is not covered under the insured's policy or for a patient
determined to be ineligible for coverage; (D) except in the case of
medically necessary inpatient services resulting from an emergency
admission, where there is not an existing participating provider
agreement between an insurer and a general hospital; or (E) where the
hospital has repeatedly and systematically, over the previous twelve
month period, failed to seek prior authorization for services for which
prior authorization was required.

(4) For purposes of this subsection, an "administrative requirement"
shall not include requirements: (A) imposed on an insurer or provider
pursuant to federal or state laws, regulations or guidance; or (B)
established by the state or federal government applicable to insurers
offering benefits under a state or federal government program.

(5) The prohibition on denials set forth in this subsection shall not
apply to claims for services for which a request for preauthorization
was denied by the insurer prior to delivery of the service.

(k) An insurer shall not require a prior authorization determination
for services provided in a neonatal intensive care unit of a general
hospital certified pursuant to article twenty-eight of the public health
law. Nothing in this subsection shall prohibit an insurer from denying a
claim for such services if the services are subsequently determined not
medically necessary.

(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
upon mediator to assist in resolving any outstanding contractual issues.
The results of the mediation shall not be binding on the parties.

(m) A contract between an insurer and a health care provider shall
include a provision that requires the health care provider to have in
place business processes to ensure the timely provision of provider
directory information to the insurer. A health care provider shall
submit such provider directory information to an insurer, at a minimum,
when a provider begins or terminates a network agreement with an
insurer, when there are material changes to the content of the provider
directory information of the health care provider, and at any other
time, including upon the insurer's request, as the health care provider
determines to be appropriate. For purposes of this subsection, "provider
directory information" shall include the name, address, specialty,
telephone number, and digital contact information of such health care
provider; whether the provider is accepting new patients; for mental
health and substance use disorder services providers, any affiliations
with participating facilities certified or authorized by the office of
mental health or the office of addiction services and supports, and any
restrictions regarding the availability of the individual provider's
services; and in the case of physicians, board certification, languages
spoken, and any affiliations with participating hospitals.

(n) A contract between an insurer and a health care provider shall
include a provision that states that the provider shall reimburse the
insured for the full amount paid by the insured in excess of the
in-network cost-sharing amount, plus interest at an interest rate
determined by the superintendent in accordance with 42 U.S.C. §
300gg-139(b), for the services involved when the insured is provided
with inaccurate network status information by the insurer in a provider
directory or in response to a request that stated that the provider was
a participating provider when the provider was not a participating
provider. In the event the insurer provides inaccurate network status
information to the insured indicating the provider was a participating
provider when such provider was not a participating provider, the
insurer shall reimburse the provider for the out-of-network services
regardless of whether the insured's coverage includes out-of-network
services. Nothing in this subsection shall prohibit a health care
provider from requiring in the terms of a contract with an insurer that
the insurer remove, at the time of termination of such contract, the
provider from the insurer's provider directory or that the insurer bear
financial responsibility for providing inaccurate network status
information to an insured.