2023 New York Laws › ISC - Insurance › Article 43 - Non-Profit Medical and Dental Indemnity, or Health and Hospital Service Corporations › 4325 - Prohibitions.

§  4325. Prohibitions. (a) No corporation organized under this article
shall by contract, written  policy  or  written  procedure  prohibit  or
restrict  any  health  care  provider from disclosing to any subscriber,
designated representative or, where appropriate, prospective subscriber,
(hereinafter collectively referred to  as  subscriber)  any  information
that such provider deems appropriate regarding:
(1)  a  condition or a course of treatment with a subscriber including
the availability of other therapies, consultations, or tests; or
(2) the  provisions,  terms,  or  requirements  of  the  corporation's
products as they relate to the subscriber.
(b)  No  corporation  organized  under 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 corporation which the provider believes may negatively
impact upon the quality of or  access  to  patient  care.  Nor  shall  a
corporation  organized  under  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
corporation  which  may  violate  this chapter including subsection (g),
(k), (1), (1-1) or (1-2) of section forty-three hundred  three  of  this
article.
(c)  No  corporation  organized  under this article shall by contract,
written policy or written procedure prohibit or restrict any health care
provider from advocating to the corporation on behalf of the  subscriber
for approval or coverage of a particular course of treatment.
(d)  No  contract  or  agreement between a corporation organized under
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 corporation 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 rates 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 contract 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) No corporation or insurer organized or licensed under this chapter
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.
(i) Any contract provision, written policy  or  written  procedure  in
violation of this section shall be deemed to be void and unenforceable.
* (j)  If  a  contract  between  a  corporation  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 subscribers 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  corporation  provides notice to the subscriber at least thirty days
in advance of the date of contract termination.
* NB Repealed June 30, 2025
(k)  (1)  No corporation organized under this article shall by written
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
corporation with respect to those services.
(2) Nothing in this subsection shall preclude a general hospital and a
corporation  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 of a corporation of  fraud  or
intentional   misconduct   resulting  in  misrepresentation  of  patient
diagnosis or the services provided, or abusive billing by a corporation;
(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,  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  contract  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 such corporation 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 a corporation or provider
pursuant  to  federal  or  state  laws,  regulations  or  guidance;  (B)
established   by   the   state   or  federal  government  applicable  to
corporations 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 corporation prior to delivery of the service.
(l)  A  corporation  organized  under this article 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 a corporation organized under this article from denying a claim

for  such  services  if  the  services  are  subsequently determined not
medically necessary.
(m) At least sixty days prior to the termination of a contract between
a  hospital  and  an  organization, 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.
(n) A contract between a corporation 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 corporation. A health care provider shall
submit such provider  directory  information  to  a  corporation,  at  a
minimum, when a provider begins or terminates a network agreement with a
corporation,  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 corporation'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.
(o) A contract between a corporation 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  corporation  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 corporation provides inaccurate
network  status information to the insured indicating the provider was a
participating provider  when  such  provider  was  not  a  participating
provider,   the   corporation  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 a corporation that the corporation remove, at the time of
termination of  such  contract,  the  provider  from  the  corporation's
provider directory or that the corporation bear financial responsibility
for providing inaccurate network status information to an insured.