2023 New York Laws › ISC - Insurance › Article 43 - Non-Profit Medical and Dental Indemnity, or Health and Hospital Service Corporations › 4322 - Standardization of Individual Enrollee Direct Payment Contracts Offered by Health Maintenance Organizations Which Provide Out-of-Plan Benefits Prior to October First, Two Thousand Thirteen.

§   4322.   Standardization  of  individual  enrollee  direct  payment
contracts offered by  health  maintenance  organizations  which  provide
out-of-plan  benefits prior to October first, two thousand thirteen. (a)
On and after January  first,  nineteen  hundred  ninety-six,  and  until
September  thirtieth,  two  thousand  thirteen,  all  health maintenance
organizations issued a certificate of authority under article forty-four
of the public health law or licensed under this article shall  offer  to
individuals,  in  addition  to  the  standardized  contract  required by
section four thousand  three  hundred  twenty-one  of  this  article,  a
standardized  individual  enrollee  direct  payment  contract on an open
enrollment basis as prescribed by section four  thousand  three  hundred
seventeen  of this article and section four thousand four hundred six of
the public health law, and regulations promulgated thereunder,  with  an
out-of-plan  benefit  system,  provided, however, that such requirements
shall not apply to a health maintenance organization exclusively serving
individuals enrolled pursuant to title eleven of  article  five  of  the
social  services  law,  title  eleven-D  of  article  five of the social
services law, title one-A of article twenty-five of  the  public  health
law   or  title  eighteen  of  the  federal  Social  Security  Act.  The
out-of-plan benefit system  shall  either  be  provided  by  the  health
maintenance  organization  pursuant  to  subdivision two of section four
thousand four hundred six  of  the  public  health  law  or  through  an
accompanying  insurance  contract providing out-of-plan benefits offered
by a company appropriately licensed pursuant to  this  chapter.  On  and
after  January  first,  nineteen hundred ninety-six, and until September
thirtieth, two thousand thirteen, the contracts issued pursuant to  this
section  and  section  four  thousand  three  hundred twenty-one of this
article shall be  the  only  contracts  offered  by  health  maintenance
organizations  to individuals. The enrollee contracts issued by a health
maintenance organization under this section and  section  four  thousand
three  hundred  twenty-one  of  this  article  shall  also  be  the only
contracts issued by the health maintenance organization for purposes  of
conversion  pursuant  to  sections  four thousand three hundred four and
four thousand three hundred five of this article.   However, nothing  in
this section shall be deemed to require health maintenance organizations
to terminate individual direct payment contracts issued prior to January
first,  nineteen  hundred  ninety-six  or  prohibit  health  maintenance
organizations  from  terminating  individual  direct  payment  contracts
issued prior to January first, nineteen hundred ninety-six.
(i)  On  and after January first, two thousand fourteen, each contract
that is not a grandfathered health plan shall provide coverage  for  the
essential health benefit package. For purposes of this subsection:
(1)  "essential  health  benefits  package" shall have the meaning set
forth in section 1302(a)  of  the  affordable  care  act,  42  U.S.C.  §
18022(a); and
(2)   "grandfathered   health  plan"  means  coverage  provided  by  a
corporation in which an individual was enrolled on  March  twenty-third,
two  thousand  ten  for  as long as the coverage maintains grandfathered
status in accordance with section 1251(e) of the affordable care act, 42
U.S.C. § 18011(e).
(b) The in-plan and out-of-plan covered benefits for the  standardized
individual  enrollee  direct payment contract shall include coverage for
all health services which an enrolled population in a health maintenance
organization might require in order to be  maintained  in  good  health,
rendered  without  limitation  as to time and cost, except to the extent
permitted by this chapter.
The in-plan and out-of-plan covered services include the following:
(1) Inpatient hospital services, including:
(A) daily room and board;
(B) general nursing care;
(C) special diets; and
(D) miscellaneous hospital services.
(2) Outpatient hospital services including:
(A) diagnostic and treatment services;
(B) x-rays; and
(C) laboratory tests.
(3) Physician services including:
(A) consultant and referral services;
(B) primary and preventive care services;
(C) in-hospital medical services;
(D) surgical services;
(E) anesthetic services; and
(F) second surgical opinion.
(4) Preventive health services including:
(A) periodic physical examinations, including eye and ear examinations
to determine the need for vision and hearing correction;
(B) well child care from birth;
(C) pediatric and adult immunizations;
(D)  mammography  screening,  as provided in subsection (p) of section
four thousand three hundred three of this article;
(E) cervical cytology screening  as  provided  in  subsection  (t)  of
section four thousand three hundred three of this article; and
(F)  for  a  contract  that  is  not  a grandfathered health plan, the
following additional preventive health services:
(i) evidence-based items or services that have in effect a  rating  of
'A'  or  'B'  in  the  current  recommendations  of  the  United  States
preventive services task force;
(ii) immunizations that have  in  effect  a  recommendation  from  the
advisory  committee on immunization practices of the centers for disease
control and prevention with respect to the individual involved;
(iii) with respect to children,  including  infants  and  adolescents,
evidence-informed  preventive  care  and  screenings provided for in the
comprehensive guidelines supported by the health resources and  services
administration; and
(iv)  with  respect  to  women,  such  additional  preventive care and
screenings not described  in  item  (i)  of  this  subparagraph  and  as
provided  for  in  comprehensive  guidelines  supported  by  the  health
resources and services administration.
(v) For purposes of this  subparagraph,  "grandfathered  health  plan"
means  coverage  provided  by  a  corporation in which an individual was
enrolled on March twenty-third, two thousand ten  for  as  long  as  the
coverage  maintains  grandfathered  status  in  accordance  with section
1251(e) of the Affordable Care Act, 42 U.S.C. § 18011(e).
(5) Emergency services.
(6) Diagnostic laboratory services.
(7) Therapeutic and diagnostic radiologic services.
(8) Preadmission testing.
(9) Home health services up to  two  hundred  visits  per  member  per
calendar year.
(10) Maternity care.
(11) Chemotherapy services.
(12)   Hemodialysis   services   consistent  with  the  provisions  of
subsection (gg) of section four thousand three  hundred  three  of  this
article.
(13) Outpatient physical therapy up to ninety visits per condition per
calendar year.
(14) Hospice care up to two hundred ten days.
(15) Skilled nursing facility care when preceded by a hospital stay of
at  least  three  days  and  further  hospitalization would otherwise be
necessary.
(16)  Equipment,  supplies  and  self-management  education  for   the
treatment of diabetes.
(17) Inpatient diagnosis and treatment of mental, nervous or emotional
disorders  or ailments up to thirty days per calendar year combined with
inpatient treatment of alcoholism and substance abuse.
(18) Inpatient diagnosis and treatment of alcoholism and alcohol abuse
and substance abuse and substance  dependence  up  to  thirty  days  per
calendar  year  for  detoxification combined with inpatient treatment of
mental, nervous or emotional disorders or ailments.
(19)  Outpatient  diagnosis  and  treatment  of  mental,  nervous   or
emotional  disorders  or  ailments  up to thirty non-emergency and three
emergency visits per calendar year.
(20) Ambulance services.
(21) Private duty nursing up to five thousand dollars  per  individual
per  calendar  year  up  to  a  ten  thousand dollar individual lifetime
maximum.
(22) Prosthetics, orthotics, durable  medical  equipment  and  medical
supplies.
(23) Inpatient physical rehabilitation services.
(24) Blood and blood products.
(25)  Prescription  drugs,  including  contraceptive  drugs or devices
approved  by  the  federal  food  and  drug  administration  or  generic
equivalents approved as substitutes by such food and drug administration
and  nutritional  supplements (formulas), whether administered orally or
via a feeding tube for the  therapeutic  treatment  of  phenylketonuria,
branched-chain ketonuria, galactosemia and homocystinuria, obtained at a
participating  pharmacy  under  a  prescription written by an in-plan or
out-of-plan provider. Health maintenance organizations, in  addition  to
providing  coverage  for prescription drugs at a participating pharmacy,
may utilize a mail order prescription drug program.  Health  maintenance
organizations   may  provide  prescription  drugs  pursuant  to  a  drug
formulary; however, health maintenance organizations must  implement  an
appeals  process so that the use of non-formulary prescription drugs may
be requested by a physician or other provider.
Health maintenance organizations shall impose  a  one  hundred  dollar
individual  deductible  and a three hundred dollar family deductible per
calendar  year  for  prescription  drugs  obtained  at  a  participating
pharmacy.  Health  maintenance organizations may not impose a deductible
on prescriptions obtained through the mail order drug program.
In addition to the deductible, a ten dollar copayment shall be imposed
on up to a thirty-four day  supply  of  brand  name  prescription  drugs
obtained  at  a participating pharmacy. A five dollar copayment shall be
imposed on up to a thirty-four day supply of generic prescription  drugs
or brand name drugs for which there is no generic equivalent obtained at
a participating pharmacy.
If  a  mail  order drug program is utilized, a twenty dollar copayment
shall be imposed on a ninety  day  supply  of  brand  name  prescription
drugs. A ten dollar copayment shall be imposed on a ninety day supply of
generic  prescription  drugs  or  brand name drugs for which there is no
generic equivalent obtained through the mail order drug program.
In no event shall the copayment exceed  the  cost  of  the  prescribed
drug.
(26)  Bone mineral density measurements or tests and, if such contract
otherwise includes coverage for prescription drugs,  drugs  and  devices

approved  by  the  federal  food  and  drug  administration  or  generic
equivalents as approved substitutes.
In determining appropriate coverage provided by subparagraphs (A), (B)
and   (C)   of   this  paragraph,  the  insurer  or  health  maintenance
organization shall adopt standards that  include  the  criteria  of  the
federal  Medicare program and the criteria of the national institutes of
health for the detection of osteoporosis, provided  that  such  coverage
shall be further determined as follows:
(A)  For purposes of subparagraphs (B) and (C) of this paragraph, bone
mineral density measurements or tests, drugs and devices  shall  include
those covered under the criteria of the federal Medicare program as well
as  those in accordance with the criteria, of the national institutes of
health, including, as consistent with such  criteria  dual-energy  x-ray
absorptiometry.
(B)  For purposes of subparagraphs (A) and (C) of this paragraph, bone
mineral density measurements  or  tests,  drugs  and  devices  shall  be
covered  for  individuals  meeting  the criteria for coverage consistent
with the criteria under the federal Medicare program or the criteria  of
the  national  institutes  of  health;  provided  that,  to  the  extent
consistent with such criteria, individuals qualifying for coverage shall
at a minimum, include individuals:
(i) previously diagnosed as having osteoporosis  or  having  a  family
history of osteoporosis; or
(ii)  with  symptoms  or conditions indicative of the presence, or the
significant risk, of osteoporosis; or
(iii) on a prescribed  drug  regimen  posing  a  significant  risk  of
osteoporosis; or
(iv)  with  lifestyle factors to such a degree as posing a significant
risk of osteoporosis; or
(v) with such age, gender and/or other  physiological  characteristics
which pose a significant risk for osteoporosis.
(C) Such coverage required pursuant to subparagraph (A) or (B) of this
paragraph may be subject to annual deductibles and coinsurance as may be
deemed  appropriate  by  the  superintendent  and as are consistent with
those established for other benefits within a given policy.
(D) In addition to subparagraph (A), (B) or  (C)  of  this  paragraph,
except  for  a  grandfathered health plan under subparagraph (E) of this
paragraph, coverage  shall  be  provided  for  the  following  items  or
services  for  bone  mineral  density,  and  such  coverage shall not be
subject to annual deductibles or coinsurance:
(i) evidence-based items or services for  bone  mineral  density  that
have  in effect a rating of 'A' or 'B' in the current recommendations of
the United States preventive services task force; and
(ii) with respect  to  women,  such  additional  preventive  care  and
screenings  for  bone  mineral density not described in item (i) of this
subparagraph and as provided for in comprehensive  guidelines  supported
by the health resources and services administration.
(E)  For purposes of this paragraph, "grandfathered health plan" means
coverage provided by a corporation in which an individual  was  enrolled
on  March  twenty-third,  two  thousand  ten for as long as the coverage
maintains grandfathered status in accordance with section 1251(e) of the
Affordable Care Act, 42 U.S.C. § 18011(e).
(27)  Services  covered  under  such  policy  when   provided   by   a
comprehensive  care  center  for  eating  disorders  pursuant to article
thirty of the mental hygiene law; provided, however, that  reimbursement
under  such policy for services provided through such comprehensive care
centers shall, to the extent possible and practicable, be structured  in
a  manner to facilitate the individualized, comprehensive and integrated

plans of care which such centers' network of practitioners and providers
are required to provide.
(b-1)   The   in-plan   and   out-of-plan  covered  benefits  for  the
standardized individual enrollee direct payment contracts established by
this section and section four thousand three hundred twenty-one of  this
article  shall  not  include  drugs,  procedures  and  supplies  for the
treatment of erectile dysfunction when provided to,  or  prescribed  for
use  by, a person who is required to register as a sex offender pursuant
to article six-C of the correction law, provided that: (1) any denial of
coverage pursuant to this subsection shall provide the enrollee with the
means of obtaining additional information concerning both the denial and
the means of challenging such denial;  (2)  all  drugs,  procedures  and
supplies  for  the  treatment  of erectile dysfunction may be subject to
prior authorization by health maintenance organizations or insurers  for
the purposes of implementing this subsection; and (3) the superintendent
shall  promulgate  regulations  to  implement  the  denial  of  coverage
pursuant to this subsection giving health maintenance organizations  and
insurers  at  least sixty days following promulgation of the regulations
to implement their denial procedures pursuant to this subsection.
(b-2) No person or entity authorized to provide  coverage  under  this
section  shall be subject to any civil or criminal liability for damages
for any decision or action pursuant to subsection (b-1) of this section,
made in the ordinary course of business if  that  authorized  person  or
entity  acted  reasonably  and  in  good  faith  with  respect  to  such
information.
(b-3) Notwithstanding any other provision of law, if the  commissioner
of  health  makes  a  finding  pursuant  to  subdivision twenty-three of
section two hundred six of the public health law, the superintendent  is
authorized  to  remove  a  drug,  procedure  or supply from the services
covered by the contracts established by this section  and  section  four
thousand  three  hundred  twenty-one  of  this article for those persons
required to register as sex offenders pursuant to article six-C  of  the
correction law.
(c)  The in-plan benefit system shall impose a ten dollar copayment on
all visits to a physician or other provider with the exception of visits
for pre-natal and post-natal care, well child visits  provided  pursuant
to  paragraph  two  of  subsection  (j)  of  section four thousand three
hundred three of  this  article,  preventive  health  services  provided
pursuant to subparagraph (F) of paragraph four of subsection (b) of this
section  or items or services for bone mineral density provided pursuant
to subparagraph (D) of paragraph twenty-six of subsection  (b)  of  this
section  for  which no copayment shall apply. A copayment of ten dollars
shall be imposed on equipment, supplies  and  self-management  education
for the treatment of diabetes. Coinsurance of ten percent shall apply to
visits  for  the diagnosis and treatment of mental, nervous or emotional
disorders or ailments. A thirty-five dollar copayment shall  be  imposed
on  emergency  services  rendered  in  the emergency room of a hospital;
however, this copayment must be waived if hospital admission results.
(d) The out-of-plan benefit system shall  have  an  annual  deductible
established  at one thousand dollars per calendar year for an individual
and two thousand dollars per year for a  family.  Coinsurance  shall  be
established  at  twenty percent with the health maintenance organization
or insurer paying eighty percent of the usual, customary and  reasonable
charges, or eighty percent of the amounts listed on a fee schedule filed
with  and  approved  by  the  superintendent which provides a comparable
level of reimbursement.  Coinsurance  of  ten  percent  shall  apply  to
outpatient  visits for the diagnosis and treatment of mental, nervous or
emotional disorders or ailments. The benefits described in  subparagraph

(F)  of  paragraph  three  and  paragraphs  seventeen  and  eighteen  of
subsection (b) of this section shall not be subject to the deductible or
coinsurance. The benefits described in paragraph nine of subsection  (b)
of  this section shall not be subject to the deductible. The out-of-plan
out-of-pocket maximum deductible and coinsurance shall be established at
three thousand dollars per calendar year  for  an  individual  and  five
thousand  dollars  per  calendar  year  for  a  family.  The out-of-plan
lifetime benefit maximum shall be established at five  hundred  thousand
dollars  for benefits that are not essential health benefits. A lifetime
limit on  the  dollar  amount  of  essential  health  benefits  for  any
individual  shall  not  be established. For purposes of this subsection,
"essential health benefits" shall have the meaning ascribed  by  section
1302(b) of the Affordable Care Act, 42 U.S.C. § 18022(b).
(e)   The   provisions  of  each  contract  describing  administrative
procedures  and  other  provisions  not  affecting  the  scope  of,   or
conditions for obtaining, covered benefits, such as, but not limited to,
eligibility  and  termination  provisions,  may be of the type generally
issued by the health maintenance organization and/or insurer, as long as
the superintendent determines that the terms and  description  of  those
administrative  and  other  provisions are unlikely to affect consumers'
determinations of which health maintenance  organization's  contract  to
purchase  and  are  not  contrary to law. Each contract may also include
limitations and conditions on coverage of  benefits  described  in  this
section  provided  the  superintendent  determines  the  limitations and
conditions on coverage were commonly included in the health  maintenance
organization  and/or health insurance products covering individuals on a
direct payment basis prior to January first, nineteen hundred ninety-six
and are not contrary to law.
(f)  A  health  maintenance  organization  may  offer   the   required
out-of-plan  benefits by means of a rider to a contract offering in-plan
benefits only.
(g) Day and visit limitations on benefits included in this section are
aggregate  limitations  regardless  of  whether  services  are  received
in-plan  or  out-of-plan.  The  five  thousand dollar per individual per
calendar year limitation and ten thousand dollar lifetime limitation  on
private  duty  nursing  is  also an aggregate limitation for in-plan and
out-of-plan benefits combined.
(h) The superintendent shall be authorized to modify,  by  regulation,
the  copayments,  deductibles  and coinsurance amounts described in this
section, if the superintendent determines such amendments are  necessary
to  moderate  potential  premiums.  On  or after January first, nineteen
hundred  ninety-eight,  the  superintendent  shall  be   authorized   to
establish one or more additional standardized individual enrollee direct
payment  contracts  if  the superintendent determines, after one or more
public hearings, additional contracts with different levels of  benefits
are necessary to meet the needs of the public.
(i)  On  and after January first, two thousand fourteen, each contract
that is not a grandfathered health plan shall provide coverage  for  the
essential health benefit package. For purposes of this subsection:
(1)  "essential  health  benefits  package" shall have the meaning set
forth in section 1302(a)  of  the  affordable  care  act,  42  U.S.C.  §
18022(a); and
(2)   "grandfathered   health  plan"  means  coverage  provided  by  a
corporation in which an individual was enrolled on  March  twenty-third,
two  thousand  ten  for  as long as the coverage maintains grandfathered
status in accordance with section 1251(e) of the affordable care act, 42
U.S.C. § 18011(e).