2023 New York Laws › PBH - Public Health › Article 44 - Health Maintenance Organizations › 4408 - Disclosure of Information.

§  4408.  Disclosure  of  information.  1.  Each  subscriber, and upon
request each  prospective  subscriber  prior  to  enrollment,  shall  be
supplied  with  written disclosure information which may be incorporated
into the member handbook  or  the  subscriber  contract  or  certificate
containing at least the information set forth below. In the event of any
inconsistency  between any separate written disclosure statement and the
subscriber contract or certificate, the terms of the subscriber contract
or certificate shall be controlling. The  information  to  be  disclosed
shall include at least the following:
(a)  a  description  of  coverage  provisions;  health  care benefits;
benefit maximums,  including  benefit  limitations;  and  exclusions  of
coverage,   including  the  definition  of  medical  necessity  used  in
determining whether benefits will be covered;
(b) a description of all prior authorization or other requirements for
treatments and services;
(c) a description of utilization review policies and  procedures  used
by the health maintenance organization, including:
(i)   the   circumstances  under  which  utilization  review  will  be
undertaken;
(ii) the toll-free telephone number of the utilization review agent;
(iii) the timeframes under which utilization review decisions must  be
made for prospective, retrospective and concurrent decisions;
(iv) the right to reconsideration;
(v)  the  right  to  an  appeal,  including the expedited and standard
appeals processes and the time frames for such appeals;
(vi) the right to designate a representative;
(vii) a notice that all denials of claims will be  made  by  qualified
clinical  personnel  and  that  all  notices  of  denials  will  include
information about the basis of the decision;
(viii) a notice of the right to an external  appeal  together  with  a
description,   jointly   promulgated   by   the   commissioner  and  the
superintendent of financial services as required pursuant to subdivision
five of section forty-nine hundred fourteen  of  this  chapter,  of  the
external  appeal  process  established  pursuant to title two of article
forty-nine of this chapter and the timeframes for such appeals; and
(ix) further appeal rights, if any;
(d) a description prepared annually of the types of methodologies  the
health  maintenance  organization uses to reimburse providers specifying
the type of methodology that is used to reimburse  particular  types  of
providers  or  reimburse  for  the  provision  of  particular  types  of
services; provided, however, that nothing in this  paragraph  should  be
construed  to require disclosure of individual contracts or the specific
details of  any  financial  arrangement  between  a  health  maintenance
organization and a health care provider;
(e)  an  explanation  of  a  subscriber's financial responsibility for
payment of premiums, coinsurance, co-payments, deductibles and any other
charges, annual limits on a subscriber's financial responsibility,  caps
on  payments  for  covered  services  and  financial  responsibility for
non-covered health care  procedures,  treatments  or  services  provided
within the health maintenance organization;
(f)  an  explanation  of  a  subscriber's financial responsibility for
payment when services are provided by a health care provider who is  not
part  of  the health maintenance organization or by any provider without
required authorization or when a procedure, treatment or service is  not
a covered health care benefit;
(g)  a  description  of the grievance procedures to be used to resolve
disputes between a health  maintenance  organization  and  an  enrollee,
including:  the  right to file a grievance regarding any dispute between

an enrollee and a health maintenance organization; the right to  file  a
grievance  orally  when  the  dispute  is  about  referrals  or  covered
benefits; the toll-free telephone number which enrollees may use to file
an  oral  grievance;  the timeframes and circumstances for expedited and
standard grievances; the right to appeal a grievance  determination  and
the   procedures   for   filing  such  an  appeal;  the  timeframes  and
circumstances for expedited and standard appeals; the right to designate
a  representative;  a  notice  that  all  disputes  involving   clinical
decisions  will  be  made  by qualified clinical personnel; and that all
notices of determination will include information about the basis of the
decision and further appeal rights, if any;
(h) a description of the procedure for  providing  care  and  coverage
twenty-four  hours  a day for emergency services. Such description shall
include a  definition  of  emergency  services;  notice  that  emergency
services  are  not  subject  to  prior  approval; and shall describe the
enrollee's financial and other responsibilities regarding obtaining such
services including when such services are received  outside  the  health
maintenance organization's service area;
(i) a description of procedures for enrollees to select and access the
health  maintenance organization's primary and specialty care providers,
including notice of how to determine whether a participating provider is
accepting new patients;
(j) a description of the procedures for changing primary and specialty
care providers within the health maintenance organization;
(k) notice that an enrollee may obtain a referral  to  a  health  care
provider  outside  of  the  health maintenance organization's network or
panel when the health maintenance organization does not  have  a  health
care  provider  who is geographically accessible to the enrollee and who
has appropriate training and experience in the network or panel to  meet
the  particular  health  care needs of the enrollee and the procedure by
which the enrollee can obtain such referral;
(l) notice that an enrollee with a condition  which  requires  ongoing
care  from  a  specialist  may  request  a  standing  referral to such a
specialist and  the  procedure  for  requesting  and  obtaining  such  a
standing referral;
(m)  notice  that 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 request a specialist responsible for providing or coordinating
the enrollee's  medical  care  and  the  procedure  for  requesting  and
obtaining such a specialist;
(n) notice that an enrollee with a (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 request access to a specialty care center and the procedure  by
which such access may be obtained;
(o) a description of the mechanisms by which enrollees may participate
in   the   development   of  the  policies  of  the  health  maintenance
organization;
(p) a description of how the health maintenance organization addresses
the needs of non-English speaking enrollees;
(p-1) notice that an enrollee shall have direct access to primary  and
preventive   obstetric   and   gynecologic  services,  including  annual
examinations,  care  resulting  from  such  annual   examinations,   and
treatment  of acute gynecologic conditions, from a qualified provider of
such services of her choice from within the plan or for any care related
to a pregnancy;
(q) notice of all appropriate mailing addresses and telephone  numbers
to be utilized by enrollees seeking information or authorization;
(r)  a  listing by specialty, which may be in a separate document that
is updated annually, of the name, address, telephone number, and digital
contact  information   of   all   participating   providers,   including
facilities,  and:  (i)  whether  the provider is accepting new patients;
(ii) in the case of mental health or  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  (iii)  in  the  case  of
physicians,  board  certification, languages spoken and any affiliations
with participating hospitals. The listing shall also be  posted  on  the
health  maintenance  organization's  website  and the health maintenance
organization shall  update  the  website  within  fifteen  days  of  the
addition  or  termination  of  a  provider  from  the health maintenance
organization's  network  or  a  change   in   a   physician's   hospital
affiliation;
(s) where applicable, a description of the method by which an enrollee
may submit a claim for health care services;
(t) with respect to out-of-network coverage:
(i)  a  clear  description  of  the  methodology  used  by  the health
maintenance organization to determine reimbursement  for  out-of-network
health care services;
(ii)   the  amount  that  the  health  maintenance  organization  will
reimburse under the methodology for out-of-network health care  services
set  forth  as  a  percentage  of  the  usual  and  customary  cost  for
out-of-network health care services;
(iii) examples  of  anticipated  out-of-pocket  costs  for  frequently
billed out-of-network health care services;
(u)  information  in  writing  and  through  an  internet website that
reasonably permits an enrollee or prospective enrollee to  estimate  the
anticipated  out-of-pocket  cost for out-of-network health care services
in a geographical area or zip code based  upon  the  difference  between
what   the   health   maintenance   organization   will   reimburse  for
out-of-network health care services and the usual and customary cost for
out-of-network health care services; and
(v) the most recent  comparative  analysis  performed  by  the  health
maintenance organization to assess the provision of its covered services
in  accordance  with  the Paul Wellstone and Pete Dominici 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.
2. Each health maintenance organization  shall,  upon  request  of  an
enrollee or prospective enrollee:
(a)  provide  a  list  of  the  names, business addresses and official
positions of  the  membership  of  the  board  of  directors,  officers,
controlling  persons,  owners  or  partners  of  the  health maintenance
organization;
(b) provide a copy of  the  most  recent  annual  certified  financial
statement  of  the  health maintenance organization, including a balance
sheet and summary of receipts and disbursements prepared by a  certified
public accountant;
(c)  provide  a  copy  of  the  most  recent  individual,  direct  pay
subscriber contracts;
(d) provide  information  relating  to  consumer  complaints  compiled
pursuant to section two hundred ten of the insurance law;
(e)  provide  the  procedures  for  protecting  the confidentiality of
medical records and other enrollee information;
(f)   allow  enrollees  and  prospective  enrollees  to  inspect  drug
formularies used by such health maintenance organization;  and  provided
further,  that  the  health maintenance organization shall also disclose
whether individual drugs are included or excluded from  coverage  to  an
enrollee or prospective enrollee who requests this information;
(g)  provide  a written description of the organizational arrangements
and ongoing procedures of the health maintenance organization's  quality
assurance program;
(h)  provide  a  description  of the procedures followed by the health
maintenance organization in making decisions about the  experimental  or
investigational   nature   of   individual  drugs,  medical  devices  or
treatments in clinical trials;
(i)  provide  individual   health   practitioner   affiliations   with
participating hospitals, if any;
(j)  upon  written  request,  provide specific written clinical review
criteria  relating  to  a  particular  condition  or  disease  including
clinical  review  criteria  relating to a step therapy protocol override
determination pursuant to subdivisions three-a, three-b and  three-c  of
section   forty-nine   hundred   three   of  this  chapter,  and,  where
appropriate, other clinical information  which  the  organization  might
consider in its utilization review and the organization may include with
the  information a description of how it will be used in the utilization
review process; provided, however, that to the extent  such  information
is proprietary to the organization, the enrollee or prospective enrollee
shall  only  use  the  information  for  the  purposes  of assisting the
enrollee or prospective enrollee  in  evaluating  the  covered  services
provided  by  the organization. Such clinical review criteria, and other
clinical information shall also be  made  available  to  a  health  care
professional as defined in subdivision six of section forty-nine hundred
of this chapter, on behalf of an enrollee and upon written request;
(k)   provide   the   written   application   procedures  and  minimum
qualification requirements for health care providers to be considered by
the health maintenance organization;
(l) disclose  other  information  as  required  by  the  commissioner,
provided  that  such  requirements are promulgated pursuant to the state
administrative procedure act;
(m) disclose whether a health care provider  scheduled  to  provide  a
health care service is an in-network provider; and
(n)  with respect to out-of-network coverage, disclose the approximate
dollar amount that the health maintenance organization will  pay  for  a
specific  out-of-network  health  care  service.  The health maintenance
organization shall also inform an enrollee through such disclosure  that
such approximation is not binding on the health maintenance organization
and  that  the  approximate  dollar  amount  that the health maintenance
organization will pay for a specific out-of-network health care  service
may change.
3.  Nothing  in  this  section  shall  prevent  a  health  maintenance
organization from changing or  updating  the  materials  that  are  made
available to enrollees.
4.  If  a  primary  care  provider  ceases participation in the health
maintenance organization, the organization shall provide written  notice
within fifteen days from the date that the organization becomes aware of
such  change  in  status to each enrollee who has chosen the provider as
their primary care provider. If an enrollee is in an ongoing  course  of
treatment  with any other participating provider who becomes unavailable
to continue  to  provide  services  to  such  enrollee  and  the  health

maintenance  organization  is aware of such ongoing course of treatment,
the health maintenance organization shall provide written notice  within
fifteen  days  from  the  date  that the health maintenance organization
becomes aware of such unavailability to such enrollee. Each notice shall
also  describe the procedures for continuing care pursuant to paragraphs
(e) and (f) of subdivision six of section  four  thousand  four  hundred
three of this article and for choosing an alternative provider.
5.  Every  health maintenance organization shall annually on or before
April first, file a report with the commissioner and  superintendent  of
financial services showing its financial condition as of the last day of
the preceding calendar year, in such form and providing such information
as the commissioner shall prescribe.
6.   Every  health  maintenance  organization  offering  to  indemnify
enrollees pursuant to subdivision nine  of  section  forty-four  hundred
five  and  subdivision  two  of  section  forty-four hundred six of this
article shall on a quarterly basis file a report with  the  commissioner
and  the  superintendent  of  financial  services showing the percentage
utilization for the  preceding  quarter  of  non-participating  provider
services  in  such  form  and  providing  such  other information as the
commissioner shall prescribe.
7. For purposes of this section, "usual and customary cost" shall mean
the eightieth percentile of all charges for the particular  health  care
service  performed  by  a  provider in the same or similar specialty and
provided in the same geographical area as  reported  in  a  benchmarking
database  maintained  by  a  nonprofit  organization  specified  by  the
superintendent of financial services. The nonprofit  organization  shall
not  be  affiliated  with  an  insurer, a corporation subject to article
forty-three of the insurance law, a municipal cooperative health benefit
plan certified pursuant to article forty-seven of the insurance law,  or
a health maintenance organization certified pursuant to this article.
* 8.  Space  shall  be  provided on any enrollment, renewal or initial
online portal process setup forms required of a subscriber or  applicant
for  coverage,  excepting  forms  issued  by the NY State of Health, the
official  Health  Plan  Marketplace,  other  than   those   specifically
referenced  in subparagraph (iv) of paragraph (a) of subdivision five of
section forty-three hundred ten and paragraph (v) of subdivision one  of
section  two  hundred  six  of  this  chapter, so that the subscriber or
applicant for coverage shall register or  decline  registration  in  the
donate  life  registry  for  organ,  eye and tissue donations under this
section of the enrollment or renewal form  and  that  the  following  is
stated on the form in clear and conspicuous type:
"You  must  fill out the following section: Would you like to be added
to the  Donate  Life  Registry?  Check  box  for  'yes'  or  'skip  this
question'."
* NB There are 2 sb 8's
* NB Effective June 23, 2024
* 8. (a) As used in this subdivision:
(i)  "Pharmacy  benefit  manager"  shall have the meaning set forth in
section two hundred eighty-a of this chapter.
(ii) "Cost-sharing information"  means  the  amount  a  subscriber  is
required to pay to receive a drug that is covered under the subscriber's
insurance contract.
(iii)  "Covered/coverage"  means those health care services to which a
subscriber is entitled under the terms of the subscriber contract.
(iv) "Electronic health record" means a digital version of a patient's
paper  chart  and  medical  history  that  makes  information  available
instantly and securely to authorized users.
(v)  "Electronic  prescribing  system"  means  a  system  that enables
prescribers  to  enter  prescription   information   into   a   computer
prescription device and securely transmit the prescription to pharmacies
using  a  special  software  program  and connectivity to a transmission
network.
(vi)  "Electronic  prescription"  shall  have the meaning set forth in
section thirty-three hundred two of this chapter.
(vii) "Prescriber" means a health care provider licensed to  prescribe
medication or medical devices in this state.
(viii)   "Real-time  benefit  tool"  or  "RTBT"  means  an  electronic
prescription decision support tool that: (1) is capable  of  integrating
with  prescribers'  electronic  prescribing  system  and,  if  feasible,
electronic health record systems; and (2) complies  with  the  technical
standards  adopted  by  an  American National Standards Institute (ANSI)
accredited standards development organization.
(ix) "Authorized third party" shall  include  a  third  party  legally
authorized  under  state  or  federal  law subject to a Health Insurance
Portability and Accountability Act (HIPAA) business associate agreement.
(b) The provisions of this section shall not apply to any health  plan
that  exclusively  serves  individuals enrolled pursuant to a federal or
state insurance affordability program, including the medical  assistance
program  under  title eleven of article five of the social services law,
child health plus under  section  twenty-five  hundred  eleven  of  this
chapter,   the   basic   health  program  under  section  three  hundred
sixty-nine-gg of the social services law, or a plan  providing  services
under title XVIII of the federal social security act.
(c)  A  health  maintenance  organization  or pharmacy benefit manager
shall, upon request of the  subscriber,  the  subscriber's  health  care
provider,  or an authorized third party on the subscriber's behalf, made
to the health maintenance  organization  or  pharmacy  benefit  manager,
furnish   the   cost,  benefit,  and  coverage  data  required  by  this
subdivision to the subscriber, the subscriber's health care provider, or
the authorized third party and shall  ensure  that  such  data  is:  (i)
current  no  later  than  one business day after any change to the cost,
benefit, or coverage data is made; (ii) provided through a RTBT when the
request is made by the subscriber's health care provider; and (iii) in a
format that is easily accessible to the requestor.
(d) When  providing  the  data  required  by  paragraph  (c)  of  this
subdivision,  the  health  maintenance  organization or pharmacy benefit
manager shall use established industry content and  transport  standards
published by:
(i)  a  standards  developing  organization accredited by the American
National Standards Institute (ANSI), including, the National Council for
Prescription Drug Programs (NCPDP), ASC X12, Health Level 7; or
(ii) a relevant federal or state governing body, including the  Center
for  Medicare  &  Medicaid  Services  or  the  Office  of  the  National
Coordinator for Health Information Technology.
(iii)  another  format  deemed  acceptable  to  the  department  which
provides the data prescribed in paragraph (c) of this subdivision and in
the same timeliness as required by this section.
(e)  A  facsimile  shall  not  be  considered an acceptable electronic
format pursuant to this subdivision.
(f) Upon a request made pursuant to paragraph (c) of this subdivision,
the health maintenance organization or pharmacy  benefit  manager  shall
provide  the  following data for any drug covered under the subscriber's
subscriber contract:
(i) subscriber-specific eligibility information;
(ii) subscriber-specific prescription cost and benefit data,  such  as
applicable  formulary,  benefit, coverage, and cost-sharing data for the
prescribed   drug   and   clinically-appropriate   alternatives,    when
appropriate;
(iii)  subscriber-specific  cost-sharing  information  that  describes
variance in cost-sharing based on the pharmacy dispensing the prescribed
drug or its alternatives, and in relation to the insured's benefit; and
(iv) applicable utilization management requirements.
(g) A health maintenance  organization  or  pharmacy  benefit  manager
shall furnish the data as required whether the request is made using the
drug's  unique  billing code, such as a National Drug Code or Healthcare
Common Procedure Coding  System  code  or  descriptive  term.  A  health
maintenance  organization  or pharmacy benefit manager shall not deny or
unreasonably delay processing a request.
(h) A health maintenance organization  and  pharmacy  benefit  manager
shall  not,  except  as  may be required or authorized by law, interfere
with, prevent, or materially discourage access, exchange, or use of  the
data  as  required;  nor  shall  a  health  maintenance  organization or
pharmacy benefit manager penalize a health care provider for  disclosing
such  information to a subscriber or legally prescribing, administering,
or ordering a lower cost, clinically appropriate alternative.
(i) Nothing in this subdivision shall be construed to limit access  to
the     most     up-to-date     subscriber-specific    eligibility    or
subscriber-specific prescription cost and benefit  data  by  the  health
maintenance organization or pharmacy benefit manager.
(j) Nothing in this subdivision shall interfere with subscriber choice
and  a  health  care  provider's  ability  to  convey  the full range of
prescription drug cost  options  to  a  subscriber.  Health  maintenance
organizations  and pharmacy benefit managers shall not restrict a health
care provider from communicating to  the  subscriber  prescription  cost
options.
* NB There are 2 sb 8's