NY Pub Health L § 4403 (2021)
2021 New York Laws PBH - Public Health Article 44 - Health Maintenance Organizations 4403 - Health Maintenance Organizations; Issuance of Certificate of Authority.

§  4403.  Health maintenance organizations; issuance of certificate of authority.  1.  The  commissioner  shall  not  issue  a  certificate  of authority  to  an  applicant  therefor unless the applicant demonstrates that:  (a) it has defined a proposed enrolled population to which the  health maintenance   organization  proposes  to  provide  comprehensive  health services and has established a mechanism by which  that  population  may advise in determining the policies of the organization;  (b)   it  has  the  capability  of  organizing,  marketing,  managing, promoting and operating a comprehensive health services plan;  (c) it is financially responsible and may  be  expected  to  meet  its obligations  to its enrolled members. For the purpose of this paragraph, "financially responsible" means that the  applicant  shall  assume  full financial risk on a prospective basis for the provision of comprehensive health  services, including hospital care and emergency medical services within the area served by the plan, except that it may require providers to share financial risk under the terms of their contract, it  may  have financial  incentive  arrangements  with  providers  or  it  may  obtain insurance  or  make  other  arrangements  for  the  cost  of   providing comprehensive  health  services  to  enrollees;  any  insurance or other arrangement required by this paragraph shall be approved as to  adequacy by  the  superintendent  as  a  prerequisite  to  the  issuance  of  any certificate of authority by the commissioner;  (d) the character, competence, and standing in the  community  of  the proposed   incorporators,   directors,  sponsors  or  stockholders,  are satisfactory to the commissioner;  (e) the prepayment mechanism  of  its  comprehensive  health  services plan, the bases upon which providers of health care are compensated, and the  anticipated use of allied health personnel are conducive to the use of ambulatory care and the efficient use of hospital services;  (f) acceptable procedures have been established to monitor the quality of care provided by the plan, which, in the case of services provided by non-participating providers,  shall  be  limited  to  the  provision  of reports to the primary care practitioner responsible for supervising and coordinating the care of the enrollee;  (g)  approved  mechanisms  exist  to resolve complaints and grievances initiated by any enrolled member; and  (h) the contract between the enrollee and the  organization  meet  the requirements  of  the  superintendent as set forth in section forty-four hundred six of this article, as to the provisions contained therein  for health  services,  the procedures for offering, renewing, converting and terminating contracts to enrollees, and the  rates  for  such  contracts including  but not limited to, compliance with the provisions of section one thousand one hundred nine of the insurance law.   2. The commissioner may adopt and amend rules and regulations pursuant to the state administrative procedure act to effectuate the purposes and provisions of this article.  Such  regulations  may  include  rules  and procedures  addressing  the  provision  of emergency services, including patient notification, obtaining authorization for treatment, transfer of patients from one  facility  to  another  and  emergency  transportation arrangements.   3.  Nothing  contained  in  this  section shall preclude any person or persons in developing a health maintenance organization from  contacting potential   participants  to  discuss  the  health  care  services  such organization would offer, prior to the  granting  of  a  certificate  of authority.   4.  Nothing  in  this  article  shall  preclude any health maintenance organization from meeting the requirements  of  any  federal  law  which  would  authorize such health maintenance organization to receive federal financial assistance or  which  would  authorize  enrollees  to  receive assistance from federal funds.   5.  (a)  The  commissioner, at the time of initial licensure, at least every three years thereafter, and  upon  application  for  expansion  of service  area,  shall  ensure  that  the health maintenance organization maintains a network of  health  care  providers  adequate  to  meet  the comprehensive   health   needs  of  its  enrollees  and  to  provide  an appropriate choice of  providers  sufficient  to  provide  the  services covered under its enrollee's contracts by determining that (i) there are a   sufficient   number   of   geographically  accessible  participating providers; (ii) there are opportunities to select from  at  least  three primary  care  providers pursuant to travel and distance time standards, providing that such standards account for the  conditions  of  accessing providers  in  rural areas; (iii) there are sufficient providers in each area  of  specialty  practice  to  meet  the  needs  of  the  enrollment population;  (iv)  there  is  no exclusion of any appropriately licensed type of provider as a class; and (v) contracts entered into with  health care providers neither transfer financial risk to providers, in a manner inconsistent  with the provisions of paragraph (c) of subdivision one of this section, nor 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.  (b) The following criteria shall be considered by the commissioner  at the  time  of  a  review: (i) the availability of appropriate and timely care that is provided in compliance with the standards  of  the  Federal Americans  with  Disability  Act to assure access to health care for the enrollee population; (ii) the network's ability  to  provide  culturally and  linguistically  competent  care  to  meet the needs of the enrollee population; (iii) the availability of appropriate and timely  care  that is  in  compliance  with  the  standards  of the Paul Wellstone and Pete Domenici Mental Health Parity and  Addiction  Equity  Act  of  2008,  42 U.S.C.  18031(j),  and  any  amendments  to,  and  federal  guidance and regulations issued under those Acts, which shall include an analysis  of the  rate  of  out-of-network  utilization for covered mental health and substance  use  disorder  services  as   compared   to   the   rate   of out-of-network  utilization  for  the  respective  category  of  medical services; and (iv) with the exception of initial licensure,  the  number of   grievances  filed  by  enrollees  relating  to  waiting  times  for appointments, appropriateness of referrals and other indicators of  plan capacity.  (c)  Each  organization  shall report on an annual basis the number of enrollees  and  the  number   of   participating   providers   in   each organization.   6.  (a)  If  a health maintenance organization determines that it does not have a health care provider with appropriate training and experience in its panel or network to meet the particular health care needs  of  an enrollee,  the  health maintenance organization shall make a referral to an appropriate provider, pursuant to a treatment plan  approved  by  the health  maintenance  organization  in consultation with the primary care provider, the non-participating provider and the enrollee or  enrollee's designee, at no additional cost to the enrollee beyond what the enrollee would otherwise pay for services received within the network.  (b)  A health maintenance organization shall have a procedure by which an enrollee who needs ongoing care  from  a  specialist  may  receive  a standing   referral  to  such  specialist.  If  the  health  maintenance  organization, or the primary care  provider  in  consultation  with  the medical  director  of the organization and specialist if any, determines that such a standing referral is  appropriate,  the  organization  shall make  such  a  referral  to  a  specialist.  In  no event shall a health maintenance organization be required to permit an enrollee to  elect  to have  a  non-participating specialist, except pursuant to the provisions of paragraph (a) of this subdivision. Such referral shall be pursuant to a treatment plan approved by  the  health  maintenance  organization  in consultation  with  the  primary  care provider, the specialist, and the enrollee or the enrollee's designee. Such treatment plan may  limit  the number  of  visits or the period during which such visits are authorized and may require the specialist to provide the primary care provider with regular updates on the specialty care provided, as well as all necessary medical information.  (c) A health maintenance organization shall have a procedure by  which a  new enrollee upon enrollment, or an enrollee upon diagnosis, with (i) a life-threatening condition or  disease  or  (ii)  a  degenerative  and disabling  condition  or  disease,  either of which requires specialized medical care over a prolonged period of time, may receive a referral  to a   specialist  with  expertise  in  treating  the  life-threatening  or degenerative and disabling disease or condition who shall be responsible for and capable of providing and coordinating the enrollee's primary and specialty care. If the health maintenance organization, or primary  care provider in consultation with a medical director of the organization and a  specialist,  if  any,  determines that the enrollee's care would most appropriately be coordinated by  such  a  specialist,  the  organization shall  refer the enrollee to such specialist. In no event shall a health maintenance organization be required to permit an enrollee to  elect  to have  a  non-participating specialist, except pursuant to the provisions of paragraph (a) of this subdivision. Such referral shall be pursuant to a treatment plan approved by the  health  maintenance  organization,  in consultation   with  the  primary  care  provider  if  appropriate,  the specialist, and the enrollee or the enrollee's designee. Such specialist shall be permitted to treat the enrollee without  a  referral  from  the enrollee's  primary  care  provider  and  may  authorize such referrals, procedures, tests and other medical services as the  enrollee's  primary care  provider  would  otherwise  be  permitted to provide or authorize, subject to the terms of the treatment plan. If an organization refers an enrollee to a non-participating provider, services provided pursuant  to the  approved  treatment plan shall be provided at no additional cost to the enrollee beyond what the enrollee would otherwise pay  for  services received within the network.  (d)  A health maintenance organization shall have a procedure by which an enrollee with (i) a life-threatening condition or disease or  (ii)  a degenerative  and  disabling  condition  or  disease,  either  of  which requires specialized medical care over a prolonged period of  time,  may receive a referral to a specialty care center with expertise in treating the life-threatening or degenerative and disabling disease or condition. If  the health maintenance organization, or the primary care provider or the specialist designated pursuant to paragraph (c) of this subdivision, in consultation with a medical director of the organization,  determines that  the enrollee's care would most appropriately be provided by such a specialty care center, the organization shall refer the enrollee to such center. In no event shall a health maintenance organization be  required to  permit  an  enrollee  to elect to have a non-participating specialty care center, unless  the  organization  does  not  have  an  appropriate specialty  care  center  to  treat  the  enrollee's disease or condition within its network. Such referral shall be pursuant to a treatment  plan  developed  by  the  specialty  care  center  and  approved by the health maintenance  organization,  in  consultation  with  the   primary   care provider,  if any, or a specialist designated pursuant to paragraph c of this  subdivision,  and  the  enrollee or the enrollee's designee. If an organization refers an enrollee to a specialty care center that does not participate in the organization's network, services provided pursuant to the approved treatment plan shall be provided at no additional  cost  to the  enrollee  beyond what the enrollee would otherwise pay for services received within the network. For purposes of this paragraph, a specialty care center shall mean only such centers as are accredited or designated by an agency of the state  or  federal  government  or  by  a  voluntary national health organization as having special expertise in treating the life-threatening  disease  or  condition  or  degenerative and disabling disease or condition for which it is accredited or designated.  (e) (1) If an  enrollee's  health  care  provider  leaves  the  health maintenance  organization's  network of providers for reasons other than those for which the provider would not be eligible to receive a  hearing pursuant to paragraph a of subdivision two of section forty-four hundred six-d  of this chapter, the health maintenance organization shall permit the enrollee to  continue  an  ongoing  course  of  treatment  with  the enrollee's  current health care provider during a transitional period of (i) up to ninety days from the date of notice to  the  enrollee  of  the provider's  disaffiliation  from  the organization's network; or (ii) if the enrollee has entered the second trimester of pregnancy at  the  time of  the  provider's  disaffiliation,  for  a  transitional  period  that includes the provision of  post-partum  care  directly  related  to  the delivery.  (2)  Notwithstanding  the  provisions  of  subparagraph  one  of  this paragraph, such care shall  be  authorized  by  the  health  maintenance organization  during  the  transitional  period  only if the health care provider agrees (i) to continue to accept reimbursement from the  health maintenance  organization  at the rates applicable prior to the start of the transitional period as payment  in  full;  (ii)  to  adhere  to  the organization's  quality  assurance  requirements  and  to provide to the organization necessary medical information related  to  such  care;  and (iii) to otherwise adhere to the organization's policies and procedures, including   but  not  limited  to  procedures  regarding  referrals  and obtaining  pre-authorization  and  a  treatment  plan  approved  by  the organization.  (f)  If  a  new enrollee whose health care provider is not a member of the health maintenance organization's provider network  enrolls  in  the health  maintenance  organization,  the  organization  shall  permit the enrollee to continue an ongoing course of treatment with the  enrollee's current health care provider during a transitional period of up to sixty days  from  the  effective date of enrollment, if (i) the enrollee has a life-threatening disease or condition or a  degenerative  and  disabling disease  or  condition  or  (ii)  the  enrollee  has  entered the second trimester of pregnancy at the effective date  of  enrollment,  in  which case  the transitional period shall include the provision of post-partum care directly related to the delivery. If an enrollee elects to continue to receive  care  from  such  health  care  provider  pursuant  to  this paragraph,  such  care  shall  be  authorized  by the health maintenance organization for  the  transitional  period  only  if  the  health  care provider  agrees (A) to accept reimbursement from the health maintenance organization at rates established by the health maintenance organization as payment in full, which rates shall be  no  more  than  the  level  of reimbursement   applicable   to  similar  providers  within  the  health maintenance organization's network for such services; (B) to  adhere  to  the  organization's quality assurance requirements and agrees to provide to the organization necessary medical information related to such  care; and   (C)  to  otherwise  adhere  to  the  organization's  policies  and procedures  including, but not limited to procedures regarding referrals and obtaining pre-authorization and a treatment  plan  approved  by  the organization. In no event shall this paragraph be construed to require a health  maintenance  organization  to  provide coverage for benefits not otherwise covered  or  to  diminish  or  impair  pre-existing  condition limitations contained within the subscriber's contract.   7.  A  health  maintenance  organization that requires or provides for designation by an enrollee of  a  participating  primary  care  provider shall  permit  the  enrollee to designate any participating primary care provider who is available to accept such individual, and in the case  of a  child, shall permit the enrollee to designate a physician (allopathic or osteopathic) who specializes in pediatrics  as  the  child's  primary care provider if such provider participates in the network of the health maintenance organization.   * 8.  Notwithstanding  any  provision of law to the contrary, a health maintenance organization may expand its  comprehensive  health  services plan  to  include  services  operated,  certified, funded, authorized or approved by the  office  for  people  with  developmental  disabilities, including   habilitation   services  as  defined  in  paragraph  (c)  of subdivision one of section forty-four hundred three-g of  this  article, and  may  offer  such  expanded  plan  to  a  population of persons with developmental disabilities, as  such  term  is  defined  in  the  mental hygiene law, subject to the following:  (a)  Such  organization must have the ability to provide or coordinate services for persons with developmental disabilities, as demonstrated by criteria to be determined by the commissioner and  the  commissioner  of the  office  for  people  with developmental disabilities. Such criteria shall include, but not be limited to, adequate experience  providing  or coordinating services for persons with developmental disabilities;  (a-1)  If  the  commissioner  and  the  commissioner of the office for people with developmental disabilities determine that such  organization lacks  the experience required in paragraph (a) of this subdivision, the organization shall have an affiliation arrangement  with  an  entity  or entities  that  are  non-profit  organizations  or  organizations  whose shareholders are solely  controlled  by  non-profit  organizations  with experience   serving   persons   with   developmental  disabilities,  as demonstrated by criteria to be determined by the  commissioner  and  the commissioner  of  the office for people with developmental disabilities, with such criteria including, but not limited to, residential, day,  and employment  services such that the affiliated entity will coordinate and plan services operated, certified, funded, authorized or approved by the office for people with developmental disabilities or  will  oversee  and approve such coordination and planning;  (a-2)  Each  enrollee  shall  receive  services  designed  to  achieve person-centered outcomes, to enable that person  to  live  in  the  most integrated  setting  appropriate  to  that person's needs, and to enable that person to interact with nondisabled persons to the  fullest  extent possible  in  social,  workplace  and other community settings, provided that all such services are consistent with such person's wishes  to  the extent  that  such  wishes  are  known  and the individual's needs. With respect to an individual receiving  non-residential  services  operated, certified,  funded, authorized or approved by the office for people with developmental disabilities prior to enrollment in the organization, such guidelines shall require the organization to contract with  the  current provider  of  such  non-residential services at the rates established by  the office for ninety days, in order to ensure continuity of care.  With respect  to  an  individual living in a residential facility operated or certified by the office for people with developmental disabilities prior to  enrollment in the organization, the organization shall contract with the provider of residential services for that  residence  at  the  rates established by the office for people with developmental disabilities for so  long  as such person lives in that residence pursuant to an approved plan of care;  (b)  The  provision  by  such  organization  of   services   operated, certified,  funded, authorized or approved by the office for people with developmental disabilities shall be subject to the joint  oversight  and review   of   both  the  department  and  the  office  for  people  with developmental disabilities. The department and such office shall require such  organization  to  provide  comprehensive  care  planning,   assess quality,  meet quality assurance requirements and ensure the enrollee is involved in care planning.  (c) Such organization  shall  not  provide  or  arrange  for  services operated,  certified,  funded,  authorized or approved by the office for people with developmental disabilities until the  commissioner  and  the commissioner  of  the  office for people with developmental disabilities approve program features and  rates  that  include  such  services,  and determine   that  such  organization  meets  the  requirements  of  this paragraph and any other requirements set forth by  the  commissioner  of the office for people with developmental disabilities;  (d)  An  otherwise  eligible  enrollee  receiving services through the organization  that  are  operated,  certified,  funded,  authorized   or approved  by the office for people with developmental disabilities shall not be involuntarily disenrolled  from  such  organization  without  the prior  approval  of  the  commissioner  of  the  office  for people with developmental disabilities. Notice shall be provided to the enrollee and the enrollee may request a fair hearing regarding such disenrollment;  (e) The  office  for  people  with  developmental  disabilities  shall determine  the  eligibility  of individuals receiving services operated, certified, funded, authorized or approved by such office  to  enroll  in such  a  plan  and shall enroll individuals it determines eligible in an organization  chosen  by  such  individual,  guardian  or  other   legal representative;  (f)  The  office  for  people  with developmental disabilities, or its designee, shall complete a comprehensive assessment for  enrollees  that receive  services operated, certified, funded, authorized or approved by such office. This assessment shall include, but not be  limited  to,  an evaluation  of the medical, social, habilitative and environmental needs of each prospective enrollee as such needs  relate  to  such  enrollee's health, safety, living environment and wishes, to the extent such wishes are  known.  This  assessment  shall  also  serve  as  the basis for the development and provision  of  an  appropriate  plan  of  care  for  the enrollee.  Such  plan  of  care  shall  be focused on the achievement of person-centered outcomes and shall be consistent with  and  help  inform any  other  person-centered  plan  required  for  the  enrollee  by  the commissioner of the office for people with  developmental  disabilities. The initial assessment shall be completed by such office or its designee other than the organization and shall be completed, in consultation with the  prospective  enrollee's  health  care  practitioner  as  necessary. Reassessments shall be completed by the office or  its  designee,  which may  be the organization. The commissioner of the office for people with developmental disabilities  shall  prescribe  the  forms  on  which  the assessment shall be made.  (f-1)  Such  organization  shall provide the department and the office for people with developmental disabilities with  a  description  of  the proposed marketing plan and how marketing materials will be presented to persons  with  developmental  disabilities  or their authorized decision makers for the purposes of enabling them to make an informed choice.  (g)  No  person  with  a developmental disability shall be required to enroll in a  comprehensive  health  services  plan  as  a  condition  of receiving  medical  assistance and services operated, certified, funded, authorized or approved by  the  office  for  people  with  developmental disabilities until program features and reimbursement rates are approved by  the  commissioner and the commissioner of the office for people with developmental disabilities and until such commissioners  determine  that there are a sufficient number of plans authorized to coordinate care for persons   with  developmental  disabilities  pursuant  to  this  article operating in the person's county of  residence  to  meet  the  needs  of persons  with  developmental  disabilities, and that such plans meet the standards of this section.  (h) Organizations  providing  services  operated,  certified,  funded, authorized  or  approved  by  the  office  for people with developmental disabilities shall be subject to all requirements applicable  to  DISCOs operating  under section forty-four hundred three-g of this article with respect to quality assurance, grievances and appeals,  informed  choice, participating  in  development  of  plans  of care and requirements with respect to marketing, to the  extent  that  such  requirements  are  not inconsistent with this section.  (i) The provisions of this subdivision shall only be effective if, for so  long  as,  and to the extent that federal financial participation is available for the costs of services provided hereunder to recipients  of medical  assistance  pursuant  to  title  eleven  of article five of the social  services  law.  The  commissioner  shall  make   any   necessary amendments  to  the state plan for medical assistance submitted pursuant to section three hundred  sixty-three-a  of  the  social  services  law, and/or submit one or more applications for waivers of the federal social security  act,  as  may  be  necessary  to ensure such federal financial participation. To the extent that the provisions of this subdivision are inconsistent  with  other  provisions  of  this  article  or  with   the provisions  of section three hundred sixty-four-j of the social services law, the provisions of this subdivision shall prevail.   * NB Repealed September 30, 2023