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SECTION 4406-C
Prohibitions
Public Health (PBH) CHAPTER 45, ARTICLE 44
§ 4406-c. Prohibitions. 1. For purposes of this section, "health care
plan" shall mean a health maintenance organization licensed pursuant to
article forty-three of the insurance law or certified pursuant to this
article or an independent practice association certified or recognized
pursuant to this article or a medical group.

2. No health care plan shall by contract or written policy or written
procedure prohibit or restrict any health care provider from disclosing
to any subscriber, enrollee, patient, designated representative or,
where appropriate, prospective enrollee, (hereinafter collectively
referred to as enrollee) any information that such provider deems
appropriate regarding:

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

(b) the provisions, terms, or requirements of the health care plan's
products as they relate to the enrollee, where applicable.

3. No health care plan 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 health
care plan which the provider believes may negatively impact upon the
quality of, or access to, patient care. Nor shall a health care plan
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 health care plan which may
violate this chapter or the insurance law including subsection (g), (k),
(l), (l-1) or (1-2) of section forty-three hundred three of the
insurance law.

4. No health care plan shall by contract, written policy or written
procedure prohibit or restrict any health care provider from advocating
to the health care plan on behalf of the enrollee for approval or
coverage of a particular course of treatment or for the provision of
health care services.

5. No contract or agreement between a health care plan and a health
care provider shall contain any clause purporting to transfer to the
health care provider, other than a medical group, by indemnification or
otherwise any liability relating to activities, actions or omissions of
the health care plan as opposed to those of the health care provider.

5-a. Contracts entered into between a plan and a health care provider
shall include terms which prescribe:

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

(b) 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;

(c) 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;

(d) the process to be employed to resolved 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 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

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

5-b. No contract entered into with health care providers 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 this article,
or penalize providers for unfavorable case mix so as to jeopardize the
quality of or enrollees' 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.

5-c. (a) No health care plan 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 health care plan gives the health care professional with
whom the health care plan 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 health care plan, the
health care professional may, within thirty days of the date of the
notice, give written notice to the health care plan to terminate his or
her contract with the health care plan effective upon the implementation
date of the adverse reimbursement change. For the purposes of this
subdivision, 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
subdivision shall not apply where: (i) 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 (ii) 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.

(b) Nothing in this subdivision shall create a private right of action
on behalf of a health care professional against a health care plan for
violations of this subdivision.

* 5-d. If a contract between a plan 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 enrollees potentially affected by such termination or
non-renewal within fifteen days after commencement of the two-month
period. The commissioner 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 subdivision shall not apply where both
parties mutually agree in writing to the termination or non-renewal and
the plan provides notice to the enrollee at least thirty days in advance
of the date of contract termination.

* NB Repealed June 30, 2023

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.

6. No health care plan which provides coverage for prescription drugs
shall require, or enter into a contract which permits, a copayment which
exceeds the usual and customary cost of such prescribed drug.

* 7. No health maintenance organization which provides coverage for
prescription drugs and for which cost-sharing, deductibles or
co-insurance obligations are determined by category of prescription
drugs shall impose cost-sharing, deductibles or co-insurance obligations
for any prescription drug that exceeds the dollar amount of
cost-sharing, deductibles or co-insurance obligations for non-preferred
brand drugs or its equivalent (or brand drugs if there is no
non-preferred brand drug category).

* NB There are 2 sub 7's

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

* NB There are 2 sub 7's

8. (a) No health care plan 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 this chapter 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 health care plan with respect to
those services.

(b) Nothing in this subdivision shall preclude a general hospital and
a health care plan 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: (i) any requirement for timely notification must provide
for a reasonable extension of timeframes for notification for services
provided on weekends or federal holidays, (ii) 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 service provided, and (iii) any
agreed to reduction in payment for failure to meet administrative
requirements including timely notification shall not be imposed if the
patient's coverage could not be determined by the hospital after
reasonable efforts at the time the services were provided.

(c) The provisions of this subdivision shall not apply to the denial
of a claim: (i) based on a reasonable belief of a health care plan of
fraud or intentional misconduct resulting in a misrepresentation of
patient diagnosis or the services provided, or abusive billing; (ii)
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; (iii) that is a duplicate claim, is a
claim submitted late pursuant to subsection (g) of section thirty-two
hundred twenty-four-a of the insurance law, or is for services for a
benefit that is not covered under the insured's contract or for a
patient determined to be ineligible for coverage; (iv) except in the
case of medically necessary inpatient services resulting from an
emergency admission, where there is not an existing participating
provider agreement between a health care plan and a general hospital; or
(v) 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.

(d) For purposes of this subdivision, an "administrative requirement"
shall not include requirements: (i) imposed on a health care plan or
provider pursuant to federal or state laws, regulations or guidance; or
(ii) established by the state or federal government applicable to health
care plans offering benefits under a state or federal government
program.

(e) The prohibition on denials set forth in this subdivision shall not
apply to claims for services for which a request for preauthorization
was denied by the health care plan prior to delivery of the service.

9. A health care plan 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 this
chapter. Nothing in this subdivision shall prohibit a health care plan
from denying a claim for such services if the services are subsequently
determined not medically necessary.

10. (a) Any contract or other arrangement entered into by a health
care plan for the provision and administration of pharmacy benefit
management services on behalf of individuals enrolled in a managed care
provider, as defined in section three hundred sixty-four-j of the social
services law, shall be based on a pass-through pricing model and include
the following requirements:

(i) Payment to the pharmacy benefit manager for pharmacy benefit
management services shall be limited to the actual ingredient costs,
dispensing fees paid to pharmacies, and an administrative fee that
covers the cost of providing pharmacy benefit management services
pursuant to a contract described in this paragraph. The department may
establish a maximum administrative fee;

(ii) The pharmacy benefit manager shall identify all sources and
amounts of income, payments, and financial benefits to the pharmacy
benefit manager related to the provision and administration of pharmacy
benefit management services on behalf of the health care plan,
including, but not limited to, any pricing discounts, rebates of any
kind, inflationary payments, credits, clawbacks, fees, grants,
chargebacks, reimbursements, or other benefits and shall ensure that any
portion of such income, payments, and financial benefits is passed
through to the health care plan in full to reduce the reportable
ingredient cost;

(iii) The pharmacy benefit manager shall fully disclose to the
department and to the health care plan the sources and amounts of all
income, payments, and financial benefits referred to in subparagraph
(ii) of this paragraph received by the pharmacy benefit manager;

(iv) The pharmacy benefit manager shall identify all ingredient costs
and dispensing fees or similar payments made by the pharmacy benefit
manager to any pharmacy in connection with the contract or other
arrangement;

(v) The pharmacy benefit manager shall not utilize any form of spread
pricing in any contract or other arrangement with health care plans. For
purposes of this subdivision "spread pricing" means any amount charged
or claimed by the pharmacy benefit manager in excess of the amount paid
to pharmacies on behalf of the health care plan less an administrative
fee as described in this paragraph. Any such excess amount shall be
remitted to the health care plan on a quarterly basis;

(vi) Pharmacy benefit managers shall make their payment model for
administrative fees available to the health care plan and to the
department. The health care plan shall, if so directed by the
department, make changes to the payment model and resubmit an amended
contract or contracts to the department for review and approval.

(b) Any changes to premiums resulting from such contracts shall be
subject to certification by the state's actuary as actuarially
appropriate.

(c) Contracts or other arrangements subject to this subdivision shall
be submitted to the department for review and approval as required by
and in accordance with state law and the regulations of the department.
Contracts or other arrangements subject to this subdivision existing and
in force at the time of enactment of this subdivision shall be submitted
to the department for review and approval on or before July first, two
thousand nineteen.