New York State Consolidated Laws
Public Health
ARTICLE 44
HEALTH MAINTENANCE ORGANIZATIONS
Section 4400. Statement of policy and purposes.
4401. Definitions.
4402. Health maintenance organizations; application for
certificate of authority.
4403. Health maintenance organizations; issuance of certif-
icate of authority.
* 4403-a. Special purpose certificate of authority.
* NB Expires 98/07/01
* 4403-b. Development of comprehensive health services plans.
* NB Expires 98/07/01
* 4403-c. Comprehensive HIV special needs plan certification.
* NB Repealed 00/07/01
* 4403-d. Mental health special needs plans.
* NB Repealed 00/07/01
* 4403-e. Primary care partial capitation providers; partial
capitation certificate of authority.
* NB Repealed 00/07/01
* 4403-f. Managed long term care plans.
* NB Repealed 06/12/31
4404. Health maintenance organizations; continuance of certif-
icate of authority.
4405. Health maintenance organizations; powers.
4405-a. Immunizations against poliomyelitis, mumps, measles,
diphtheria and rubella.
4405-b. Duty to report.
4406. Health maintenance organizations; regulation of
contracts.
4406-a. Arbitration provisions of health maintenance organiza-
tion contracts.
4406-b. Primary and preventive obstetric and gynecologic care.
4406-c. Prohibitions.
4406-d. Health care professional applications and terminations.
4406-e. Access to end of life care.
4407. Health maintenance organizations; employer requirements.
4408. Disclosure of information.
4408-a. Integrated delivery systems.
4408-a. Grievance procedure.
4409. Health maintenance organizations; examinations.
4410. Health maintenance organizations; professional services.
4411. Construction.
4412. Separability.
4413. Savings clause.
4414. Health care compliance programs.
Sec. 4400. Statement of policy and purposes. Encouraging
the expansion of health care services options available to the
citizens of the state is a matter of vital state concern.
Without such an expansion, increased health insurance and other
benefits will continue to escalate the costs of medical care and
overload the health care delivery system. The health maintenance
organization concept, through which members of an enrolled
population are each entitled to receive comprehensive health
services for an advance or periodic charge, represents a
promising new alternative for the delivery of a full range of
health care services at a reasonable cost.
Accordingly, it shall be the policy of this state to expand
the health care services options available, and to assure greater
choice in the selection of a health care plan, by removal of
legal and other impediments to the development of competitive
health maintenance organizations acceptable to the public.
It is the intent of the legislature that the commissioner
therefore establish a comprehensive system of authorization and
regulation of health maintenance organizations in the state, as
provided in this article, in order to assure that health services
of good quality be provided to all citizens who choose to take
advantage of that alternative to meet their health care needs.
The commissioner shall cooperate with the superintendent of
insurance and with other state officials and agencies which
establish standards and requirements pertaining to the provision
and financing of health care services in order to assure
necessary, equitable and consistent state supervision of all
health care systems without duplication of inspection or
services.
S 4401. Definitions. For the purpose of this article: 1. "Health
maintenance organization" or "organization" means any person, natural
or corporate, or any groups of such persons who enter into an
arrangement, agreement or plan or any combination of arrangements or
plans which propose to provide or offer, or which do provide or offer,
a comprehensive health services plan.
2. "Comprehensive health services plan" or "plan" means a plan
through which each member of an enrolled population is entitled to
receive comprehensive health services in consideration for a basic
advance or periodic charge. A plan may include the provision of health
care services which are covered by the organization at the election of
enrollees by health care providers not participating in the plan
pursuant to a contract, employment or other association to the extent
authorized in section forty-four hundred six of this article;
provided, however, that in no event shall an enrollee elect to have a
non-participating provider serve as the enrollee`s primary care
practitioner responsible for supervising and coordinating the care of
the enrollee.
3. "Comprehensive health services" means all those health services
which an enrolled population might require in order to be maintained
in good health, and shall include, but shall not be limited to,
physician services (including consultant and referral services),
in-patient and out-patient hospital services, diagnostic laboratory
and therapeutic and diagnostic radiologic services, and emergency and
preventive health services. Such term may be further defined by
agreement with enrolled populations providing additional benefits
necessary, desirable or appropriate to meet their health care needs.
4. "Enrolled population" means a group of persons, defined as to
probable age, sex and family composition, which receives comprehensive
health services from a health maintenance organization in
consideration for a basic advance or periodic charge.
5. "Superintendent" means the superintendent of insurance of the
state of New York.
* 6. "Comprehensive HIV special needs plan" means a health
maintenance organization certified pursuant to section forty-four
hundred three-c of this article which, in addition to providing or
arranging for the provision of comprehensive health services on a
capitated basis, including those for which medical assistance payment
is authorized pursuant to section three hundred sixty-five-a of the
social services law, also provides or arranges for the provision of
HIV care to HIV positive persons eligible to receive benefits under
title XIX of the federal social security act or other public programs.
* NB Repealed 00/07/01
* 7. "HIV Center of excellence" is defined as a health care facility
certified to operate under article twenty-eight of this chapter that
offers specialized treatment expertise in HIV care services as defined
by the commissioner.
* NB Repealed 00/07/01
* 8. "Mental health special needs plan" means a combination of
persons natural or corporate, or any groups of such persons, or a
county or counties, who enter into an arrangement, agreement or plan
or combination of arrangements, agreements or plans to provide mental
health services to "persons with serious mental illness", "children
and adolescents with serious emotional disturbances" or both
populations and, further, which is certified pursuant to section
forty-four hundred three-d of this article to provide such services to
a population substantially comprised of persons eligible to receive
benefits under title XIX of the federal social security act.
* NB Repealed 00/07/01
* 9. "Persons with serious mental illness" means individuals who
meet criteria established by the commissioner of mental health, which
shall include persons who have a designated diagnosis of mental
illness under the most recent edition of the diagnostic and
statistical manual of mental disorders, and (i) whose severity and
duration of mental illness results in substantial functional
disability or (ii) who require mental health services on more than an
incidental basis.
* NB Repealed 00/07/01
* 10. "Children and adolescents with serious emotional
disturbances" means individuals under eighteen years of age who meet
criteria established by the commissioner of mental health, which shall
include children and adolescents who have a designated diagnosis of
mental illness under the most recent edition of the diagnostic and
statistical manual of mental disorders, and (i) whose severity and
duration of mental illness results in substantial functional
disability or (ii) who require mental health services on more than an
incidental basis.
* NB Repealed 00/07/01
Sec. 4402. Health maintenance organizations; application for
certificate of authority. 1. No person or groups of persons may
operate a health maintenance organization or issue a contract to
an enrollee for membership in a comprehensive health services
plan without first obtaining a certificate of authority from the
commissioner.
2. In order to receive such a certificate of authority, a
person or persons, hereinafter designated as the applicant,
intending to operate a health maintenance organization shall file
an application for such certificate on such form as the
commissioner shall prescribe, and shall provide to the
satisfaction of the commissioner the following:
(a) a copy of each of the basic organizational documents and
agreements of the applicant and all participating entities,
including all contracts and agreements relating to the provision
of comprehensive health services;
(b) a copy of the bylaws, rules and regulations on internal
governing documents of the applicant;
(c) a list of the names, addresses and official positions of
the persons comprising the applicant and all entities referred to
in paragraph (a) other than those possessing a valid operating
certificate under the provisions of article twenty-eight of this
chapter, including all owners of record or beneficial, all
members of the governing body, the officers and directors in the
case of a corporation, and the partners or members in the case of
a partnership or corporation, and the agent for service of
process;
(d) a statement of the financial condition of the
organization, including, if appropriate, an income statement,
balance sheet and projected sources and uses of funds;
(e) a statement generally describing the proposed operation
of the health maintenance organization as to the location of its
facilities, the type and quantity of health care personnel
engaged to provide services, its quality assurance mechanism, its
grievance procedure, participating hospitals and such other data
as may be required by the commissioner;
(f) a copy of each enrollee contract filed with and approved
by the superintendent pursuant to section forty-four hundred six
of this article; and
(g) such other information as may be required by the
commissioner to make the determinations required in section
forty-four hundred three of this article.
S 4403. Health maintenance organizations; issuance of certificate of
authority. 1. The commissioner shall not issue a certificate of authori-
ty 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, promot-
ing 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 insur-
ance 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 satis-
factory 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 organ-
ization would offer, prior to the granting of a certificate of authori-
ty.
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 appropri-
ate 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 trans-
fer 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; and (iii) 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 organiza-
tion.
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 organ-
ization, 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 organ-
ization 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 infor-
mation.
(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 disa-
bling 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 degenera-
tive 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 special-
ist, 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 with-
in its network. Such referral shall be pursuant to a treatment plan
developed by the specialty care center and approved by the health main-
tenance organization, in consultation with the primary care provider, if
any, or a specialist designated pursuant to paragraph c of this subdivi-
sion, 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 main-
tenance organization`s network of providers for reasons other than those
for which the provider would not be eligible to receive a hearing pursu-
ant 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 para-
graph, such care shall be authorized by the health maintenance organiza-
tion during the transitional period only if the health care provider
agrees (i) to continue to accept reimbursement from the health mainte-
nance organization at the rates applicable prior to the start of the
transitional period as payment in full; (ii) to adhere to the organiza-
tion`s quality assurance requirements and to provide to the organization
necessary medical information related to such care; and (iii) to other-
wise adhere to the organization`s policies and procedures, including but
not limited to procedures regarding referrals and obtaining pre-authori-
zation 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 trimes-
ter 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 neces-
sary 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-authoriza-
tion and a treatment plan approved by the organization. In no event
shall this paragraph be construed to require a health maintenance organ-
ization to provide coverage for benefits not otherwise covered or to
diminish or impair pre-existing condition limitations contained within
the subscriber`s contract.
* S 4403-a. Special purpose certificate of authority. 1. The commis-
sioner may issue a special purpose certificate of authority to a provid-
er, applying on forms prescribed by the commissioner, seeking to offer a
comprehensive health services plan on a prepaid contractual basis either
directly, or through an arrangement, agreement or plan or combination
thereof to an enrolled population, which is substantially composed of
persons eligible to receive benefits under title XIX of the federal
social security act or other public programs.
2. A not-for-profit corporation established to operate a hospital
pursuant to article twenty-eight of this chapter, a government agency,
an entity or a group of entities seeking to provide comprehensive health
services pursuant to the provisions of this section may apply for a
special purpose certificate of authority; provided, however, that a
shared health facility, as defined by article forty-seven of the public
health law, shall not be eligible for such a certificate.
3. The commissioner shall not issue a special purpose certificate of
authority unless the applicant has demonstrated to the commissioner`s
satisfaction that the requirements of this article and any regulations
promulgated pursuant thereto have been met and will continue to be met,
provided, however, that the commissioner may waive one or more of such
requirements, or portions thereof, pertaining to financial risk, employ-
er requirements and subscriber contracts if he determines that such
waiver will serve to promote the efficient provision of comprehensive
health services and that the proposed plan will provide an appropriate
and cost-effective alternative method for the delivery of such services
in a manner which will meet the needs of the population to be served.
4. (a) No contract for the provision of comprehensive health services
pursuant to this section shall be entered into by a local social
services district unless the commissioner certifies that all pertinent
requirements with respect to financial arrangements, rates, and stand-
ards relating to arrangements for and the delivery of patient care
services have been satisfied and that the contract and related arrange-
ments will ensure access to and the delivery of high quality, appropri-
ate medical services including an assurance that recipients` access to
preventive health services is not diminished.
(b) No contract for the provision of comprehensive health services to
persons eligible for medical assistance under title eleven of article
five of the social services law shall be entered into without the
approval of the commissioner of social services pursuant to section
three hundred sixty-five-a of the social services law and the state
director of the budget. The commissioner of social services shall not
approve such a contract unless the contract:
(i) provides that enrollment shall be voluntary and contains
provisions to ensure that persons eligible for medical assistance will
be provided sufficient information regarding the plan to make an
informed and voluntary choice whether to enroll or, in the event that
enrollment in the entity is pursuant to section three hundred sixty-
four-j of the social services law, provides that enrollment in the enti-
ty is governed by that section;
(ii) provides adequate safeguards to protect persons eligible for
medical assistance from being misled concerning the plan and from being
coerced into enrolling in the plan or, in the event that enrollment in
the entity is undertaken pursuant to section three hundred sixty-four-j
of the social services law, provides that enrollment in the entity is
governed by that section;
(iii) establishes adequate opportunities for public review and comment
prior to implementation of the plan;
(iv) provides adequate grievance procedures for recipients who enroll
in the plan; and
(v) establishes quality assurance mechanisms.
5. A special purpose certificate of authority shall be issued to an
approved provider of comprehensive health services for a maximum effec-
tive period of twenty-four months subject to the applicable provisions
of section forty-four hundred four of this article and provided that
federal financial participation is available for expenditures made on
behalf of recipients of medical assistance. The commissioner upon appli-
cation, after consultation with the commissioner of social services, may
issue a certificate for an additional period of up to twenty-four months
if satisfied that the plan has and will continue to demonstrate satis-
factory performance and compliance with all requirements imposed for
initial certification. If the plan provides comprehensive services
pursuant to a contract solely to individuals eligible for medical
assistance under title eleven of article five of the social services
law, the certificate shall expire when (a) the medical assistance
contract is revoked or expires and is not extended or renewed or (b)
federal approval of the medical assistance contract is withdrawn.
6. All individuals eligible for medical assistance enrolling voluntar-
ily in a comprehensive health services plan offered by an entity with a
special purpose certificate of authority will be given thirty days from
the effective date of enrollment in the plan to disenroll without cause.
After this thirty day disenrollment period, all individuals participat-
ing in the plan will be enrolled for a period of six months, except that
all participants will be permitted to disenroll for good cause, as
defined by the commissioner of social services in regulation.
7. Notwithstanding any inconsistent provision of this section, the
commissioner shall issue special purpose certificates of authority
pursuant to this section to no more than eighteen entities other than
those entities initially authorized by chapter seven hundred fifteen of
the laws of nineteen hundred eighty-two and by a chapter of the laws of
nineteen hundred eighty-four authorizing the Monroe county medicap
demonstration project.
* NB Expires 00/07/01
* S 4403-b. Development of comprehensive health services plans. The
commissioner is authorized, after consultation with the commissioner of
social services, and subject to the approval of the director of the
budget, to make grants to diagnostic and treatment centers and general
hospitals operating pursuant to article twenty-eight of this chapter, to
aid in the planning, development and implementation of comprehensive
health services plans. The total amount expended pursuant to this
section shall not exceed the amount appropriated for such purposes in
any fiscal year.
* NB Expires 00/07/01
* S 4403-c. Comprehensive HIV special needs plan certification. 1. No
person or group of persons may operate a comprehensive HIV special needs
plan without first obtaining a certificate of authority from the commis-
sioner. Any person may apply for a comprehensive HIV special needs
certificate of authority, provided, however, that a shared health facil-
ity, as defined in article forty-seven of this chapter, shall not be
eligible for such a certificate.
2. An applicant for certification shall submit the following informa-
tion and documentation to the satisfaction of the commissioner:
(a) a copy of the applicant`s basic organizational documents and
agreements of the applicant and all network members, including all
contracts and agreements relating to the provision of HIV services;
(b) a copy of any current licensure or certification maintained by the
applicant;
(c) a description of any experience the applicant may have had in
providing HIV services which are licensed, certified, funded or approved
by the department, including identification of any disciplinary, admin-
istrative or criminal proceedings related to such services in the past
ten years, the resolution thereof, and any other proceedings currently
pending;
(d) full disclosure of the financial condition of the applicant and of
members of the board, officers, controlling persons, owners and part-
ners, including, but not limited to, a statement of the applicant`s
assets, resources, accounts receivable, liabilities and proposed sources
and uses of funds and the most recent certified income statement and
balance sheet;
(e) a demonstration of the applicant`s ability to provide or continue
to provide quality HIV services;
(f) a description of the geographic area served and to be served by
the applicant;
(g) a description of the applicant`s current capacity, and proposed
capacity, to provide or arrange for the provision of comprehensive HIV
services for a defined geographic area to a defined population; and
(h) such other information as the commissioner shall require.
3. The commissioner shall not issue a comprehensive HIV special needs
plan certificate of authority to an applicant therefor unless the appli-
cant demonstrates that:
(a) it has defined an enrolled population to which the comprehensive
HIV special needs plan proposes to provide comprehensive HIV health
services, has demonstrated a willingness to enroll any person who is
eligible for enrollment within its defined catchment area and has estab-
lished a mechanism by which the enrolled population may participate in
determining the policies of the organization;
(b) it has defined a specific network of providers and facilities that
are capable of providing comprehensive HIV special needs services to the
enrolled population described in paragraph (a) of this subdivision;
(c) it has the capability of organizing, marketing, managing, promot-
ing and operating a comprehensive HIV special needs plan;
(d) it is financially responsible and sound and may be expected to
meet its obligations to its enrolled members. For the purposes of this
paragraph, "financially responsible" means that the applicant is capable
of assuming full financial risk on a prospective basis for the provision
of comprehensive HIV special needs services within the geographic catch-
ment area defined by the applicant except that it may allow providers to
share financial risk under the terms of their contract, or it may obtain
insurance or make other arrangements for the cost of providing compre-
hensive HIV special needs health services to enrollees; any insurance or
other arrangements proposed to meet this requirement shall be approved
as to adequacy as a prerequisite to the issuance of any comprehensive
HIV special needs certificate of authority by the commissioner. In
making a determination of financial soundness, the commissioner shall
consider financial information, contracts and agreements required as
part of the application for a certificate of authority and any other
information that the commissioner shall deem necessary to make that
determination. For purposes of this section, any grants awarded to an
applicant contingent upon its approval as a HIV special needs plan
certified pursuant to this section, shall be considered when making a
determination of fiscal soundness;
(e) it has established a system which appropriately accounts for costs
and a uniform system of reports and audits meeting the requirements of
the commissioner;
(f) the character, competence and standing in the community of the
proposed incorporators, directors, sponsors, or stockholders of the
plan, and its network providers, are satisfactory to the commissioner;
(g) it is willing and able to assure that necessary HIV services will
be provided in a timely manner to assure the availability and accessi-
bility of adequate personnel and facilities; to assure continuity of
care for enrollees; and to implement procedures for referrals, as
requested, to appropriate care for affected family members of the
enrolled population;
(h) the prepayment mechanism of its comprehensive HIV special needs
plan, the bases upon which the 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;
(i) acceptable procedures have been established for the conduct of
outreach and enrollment of persons with HIV infection including persons
who are homeless, substance users and other vulnerable populations;
(j) acceptable procedures have been developed to communicate with
participants in a linguistically and culturally competent manner;
(k) acceptable procedures have been established to monitor the quality
of care provided by the plan and to assure that all care rendered meets
clinical standards of HIV care as established and maintained by the AIDS
Institute of the New York state department of health;
(l) approved mechanisms exist to resolve complaints and grievances
initiated by any enrolled member; and
(m) the requirements of this article and any regulations promulgated
pursuant thereto have been met and will continue to be met.
4. The commissioner shall not issue a comprehensive HIV special needs
certificate of authority unless the applicant has demonstrated to the
commissioner`s satisfaction that the requirements of this article and
any regulations promulgated pursuant thereto have been met and will
continue to be met, provided, however, that the commissioner may impose
alternative requirements, or portions thereof, particularly those
related to capitalization, if he or she determines that such alternative
requirements will serve to promote the high quality, efficient provision
of comprehensive health services or services required by HIV positive
persons, will promote the development of HIV special needs plans and
that the proposed plan will provide an appropriate and cost-effective
alternative method for the delivery of such services in a manner which
will meet the needs of the population to be served.
5. The commissioner shall make a determination on an application
after receipt of all required and requested information and documenta-
tion.
6. The commissioner shall review and approve any current or proposed
contracts or agreements with current or prospective network members, and
provided further, that the commissioner shall specifically review and
approve any proposed provisions in such contracts or agreements with the
prospective or existing network members which specify any risk sharing
arrangements.
7. The commissioner may revoke, limit or annul a comprehensive HIV
special needs plan certificate of authority in accordance with the
provisions of section forty-four hundred four of this article.
8. A comprehensive HIV special needs plan, certified pursuant to this
section, shall be responsible for providing or arranging for all medical
assistance services defined under section three hundred sixty-five-a of
the social services law, including delivery of a comprehensive benefit
package, which shall include early and periodic screening; adolescent
health; diagnosis and treatment and child/teen health screenings; refer-
rals for necessary services; linkages to HIV counseling and testing; and
HIV prevention and education activities. A comprehensive HIV special
needs plan provider shall be responsible for assisting enrollees in the
prudent selection of such services including but not limited to:
(a) referral, coordination, monitoring and follow-up with regard to
other medical services providers, as appropriate for diagnosis and
treatment, or direct provision of all medical assistance services;
(b) methods of assuring enrollees` access to specialty services
outside the comprehensive HIV special needs plan`s network or panel when
the plan does not have a provider with the appropriate training and
experience in its network to meet the particular health care needs of
the participant;
(c) the establishment of appropriate utilization and referral require-
ments for physicians, hospitals, and other medical services providers,
including emergency room visits and inpatient admissions;
(d) the creation of mechanisms to ensure the participation of HIV
centers of excellence and community-based HIV care providers;
(e) implementation of procedures for managing the care of all partic-
ipants, including the use of facility and community-based case managers
with expertise in the care needs of persons with HIV infection, and the
designation of a specialist as a primary care practitioner;
(f) development of appropriate methods of managing the HIV care needs
of homeless, substance users and other vulnerable populations, who are
enrolled in the comprehensive HIV special needs plan, to assure that all
necessary services are made available in a timely manner, in accordance
with prevailing standards of professional medical practice, and that all
appropriate referrals and follow-up treatments are provided;
(g) provision of all early periodic screening, diagnosis and treatment
services, as well as periodic screening and referral, to each partic-
ipant under the age of twenty-one, at regular intervals and as medically
appropriate;
(h) direct provision of or arrangement for the provision of comprehen-
sive prenatal care services to all pregnant participants including all
services enumerated in subdivision one of section twenty-five hundred
twenty-two of this chapter in accordance with standards adopted by the
department of health pursuant to such section and with statute and regu-
lations governing HIV testing of pregnant women and newborns;
(i) implementation of procedures for written agreements, which may
include contractual agreements, with community-based social service
providers to ensure access to the full continuum of services needed by
HIV infected persons; and
(j) permit the use of standing referrals to specialists and subspe-
cialists for participants who require the care of such practitioners on
a regular basis.
9. Notwithstanding any other provision of law, a comprehensive HIV
special needs plan certified pursuant to this section shall limit
enrollment to HIV positive persons but may enroll related children up to
the age of nineteen regardless of their HIV status.
10. Enrollment and disenrollment. (a) Enrollment in a comprehensive
HIV special needs plan shall be voluntary and persons eligible for
enrollment in such plans shall be afforded the opportunity to choose
among such plans, to the extent available in the locality where the
person currently resides; provided however that enrollment may be auto-
matic after federal approval of a waiver or waivers or other federal
action required to institute automatic enrollment, pursuant to applica-
ble provisions of the federal social security act, and that persons
automatically enrolled in a comprehensive HIV special needs plan shall
have the opportunity to withdraw from such plan in accordance with para-
graph (g) of subdivision four, paragragh (b) of subdivision three and
subdivision twelve of section three hundred sixty-four-j of the social
services law. The department shall ensure to the maximum extent practi-
cable that individuals are provided with a choice of comprehensive HIV
special needs plans.
(b) The commissioner shall promulgate regulations establishing crite-
ria which relate to enrollment and disenrollment of enrollees in compre-
hensive HIV special needs plans. Comprehensive HIV special needs plans
shall not request disenrollment of an enrollee based on any diagnosis,
condition, or perceived diagnosis or condition, or an enrollee`s efforts
to exercise his or her rights under a grievance process.
(c) Prior to enrollment in a comprehensive HIV special needs plan
individuals are to be provided with a full written explanation of all
fee-for-service and other options and given a reasonable opportunity to
choose between the comprehensive HIV special needs plan and the other
options. In addition, enrollees shall be provided notice of their right
to disenroll from the plan, except as otherwise provided in this subdi-
vision.
(d) If an enrollee requests to change a provider or disenroll from a
comprehensive HIV special needs plan pursuant to this subdivision, the
social services district and the plan shall implement such change in a
timely manner in accordance with standards established by the commis-
sioner. When an enrollee changes comprehensive HIV special needs plan
providers the plan must effectuate the timely transfer of all necessary
medical records.
(e) Plans shall ensure that any new enrollee whose health care provid-
er is not a member of the plan`s provider network, who enrolls in the
plan, can continue with 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 an enrollee
elects to continue to receive care from such health care provider pursu-
ant to this paragraph, such care shall be authorized by the comprehen-
sive HIV special needs plan for the transitional period only if the
health care provider agrees: (1) to accept reimbursement from the
comprehensive HIV special needs plan at rates established by the plan as
payment in full, which rates shall be no more than the level of
reimbursement applicable to similar providers within the plan`s network
for such services; (2) to adhere to the plan`s quality assurance
requirements and agrees to provide to the plan any necessary medical
information related to such care; and (3) to otherwise adhere to the
plan`s policies and procedures including, but not limited to procedures
regarding referrals and obtaining pre-authorization and a treatment plan
approved by the comprehensive HIV special needs plan. In no event shall
this paragraph be construed to require a comprehensive HIV special needs
plan to provide coverage for benefits not otherwise covered;
(f) Comprehensive HIV special needs plans shall ensure that for those
enrollees whose health care provider leaves the comprehensive HIV
special needs plan`s network of providers, the enrollee shall be permit-
ted to continue an ongoing course of treatment with such current health
care provider during a transitional period of up to ninety days from the
date of notice to the enrollee of the provider`s disaffiliation from the
plan`s network. 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 comprehensive HIV special needs plan for the transi-
tional period only if the health care provider agrees: (1) to accept
reimbursement from the comprehensive HIV special needs plan at rates
established by the plan as payment in full, which rates shall be no more
than the level of reimbursement applicable to similar providers within
the plan`s network for such services; (2) to adhere to the organiza-
tion`s quality assurance requirements and agrees to provide to the plan
any necessary medical information related to such care; and (3) to
otherwise adhere to the plan`s policies and procedures including, but
not limited to procedures regarding referrals and obtaining pre-authori-
zation and a treatment plan approved by the comprehensive HIV special
needs plan. In no event shall this paragraph be construed to require a
comprehensive HIV special needs plan to provide coverage for benefits
not otherwise covered;
11. The commissioner shall develop and certify capitated payment
rates for comprehensive HIV special needs plans, subject to the approval
of the director of the division of the budget. In developing capitation
rates the commissioner shall be authorized to consider, at a minimum,
the age, eligibility category, historic cost and utilization of covered
enrollees and covered services, anticipated costs of emerging HIV treat-
ment modalities and the expected impact of delivering services in a
managed care environment.
12. Plans certified under this section must submit financial reports
in a manner and frequency established by the commissioner.
13. The department shall establish a stop-loss reinsurance program
for comprehensive HIV special needs plans. The stop-loss reinsurance
program shall be designed in a manner which promotes the development and
ongoing financial viability of the comprehensive HIV special needs plan
by providing reasonable protection for catastrophic cases and adverse
selection.
14. Quality assurance. (a) The department shall be responsible for
establishing a comprehensive quality assurance program for comprehensive
HIV special needs plans. This quality assurance program shall reflect
clinical standards of HIV care established and maintained by the AIDS
Institute in the department. The department shall monitor the perform-
ance, quality and utilization of such plans on at least an annual basis.
Such plans must describe and document the existence of a formal, organ-
ized quality assurance program with the capacity to identify, address
and follow-up on issues which concern the care and services delivered to
enrollees. Such reviews are to include, but not be limited to, the
following:
(1) compliance with performance and outcome-based quality standards
promulgated by the department;
(2) appropriateness, accessibility, timeliness, and quality of care
delivered by such providers;
(3) referrals, coordination, monitoring and follow-up with regard to
other medical service providers;
(4) methods of ensuring enrollees access to specialty services outside
the plan`s network or panel when the plan does not have a provider with
the appropriate training and experience in the network or panel to meet
the particular HIV care needs of the participant;
(5) delivery of a comprehensive benefit package, including early and
periodic screening; adolescent health; diagnosis and treatment and
child/teen health screenings; referrals for necessary services, and
linkages to HIV counseling and testing; HIV prevention and education
activities;
(6) mechanisms for the provision of all information to enrollees in
clear and coherent terms that are commonly used in a culturally and
linguistically appropriate and understandable manner;
(7) existence of a management information system to support quality
assurance activities, which system shall provide for the collection and
utilization of data including but not limited to enrollment, complaints,
encounters and specific performance indicators; and
(b) the commissioner shall have access to patient specific medical
information and enrollee medical records, including encounter data,
maintained by a comprehensive HIV special needs plan for the purposes of
quality assurance and oversight.
(c) The department shall be responsible for establishing and maintain-
ing a uniform system of reports relating to the quality of care and
services furnished by comprehensive HIV special needs plans.
15. The commissioner may revoke, limit or annul a comprehensive HIV
special needs certificate of authority in accordance with the provisions
of section forty-four hundred four of this article.
16. Confidentiality. Except as provided in paragraph (c) of subdivi-
sion fourteen of this section, any enrollee information maintained by a
comprehensive HIV special needs plan shall be kept confidential in
accordance with section forty-four hundred eight-a of this article and
where applicable section 33.13 of the mental hygiene law and any other
applicable state or federal law.
17. Utilization review. A comprehensive HIV special needs plan
authorized under this section is required to meet requirements set forth
in article forty-nine of this chapter.
18. Disclosure. Each enrollee and prospective enrollee prior to
enrollment in a comprehensive HIV special needs plan shall be provided
with written disclosure information related to enrollee benefits, rights
and obligations pursuant to section forty-four hundred eight of this
article.
19. Grievance procedure. Comprehensive HIV special needs plans author-
ized under this section shall be required to meet grievance procedures
requirements pursuant to section forty-four hundred eight-a of this
article.
20. Prohibitions. A comprehensive HIV special needs plan authorized
under this section shall be required to meet the requirements set forth
in section forty-four hundred six-c of this article.
21. The commissioner is authorized, subject to the approval of the
director of the division of the budget, and within amounts appropriated,
to make grants to those entities seeking certification to operate a
comprehensive HIV special needs plan to aid in the development of the
systems, organizational structures and networks necessary to operate a
managed care program. The commissioner is authorized to develop crite-
ria for distribution of the grants. The grants may also be used to meet
the capitalization standards and the reserve and escrow deposit require-
ments established for comprehensive HIV special needs plans.
22. Comprehensive HIV special needs plans shall function distinctly
from other comprehensive or non-comprehensive health plans operated by
the same organization, corporation, persons, county or municipality and
shall be clearly distinguished from any other functions through the
maintenance of separate records, reports and accounts for the comprehen-
sive HIV special needs plan function.
23. The commissioner shall establish reserve and escrow deposit
requirements for HIV special needs plans.
24. Nothing in this section shall be construed to require that a
health maintenance organization, certified pursuant to the provisions of
this article, apply for a comprehensive HIV special needs plan certif-
icate of authority pursuant to this section; provided, however, that a
health maintenance organization, certified pursuant to the provisions of
this article, which proposes to operate a comprehensive HIV special
needs plan shall be required to comply with all the provisions of this
section.
* NB Repealed 00/07/01
* S 4403-d. Mental health special needs plans. 1. Certification.
(a) No person, group of persons, county or counties may operate a mental
health special needs plan without first obtaining a certificate of
authority from the commissioner, issued jointly with the commissioner of
mental health.
(b) In order to receive such certificate, a person, persons, county
or counties, hereinafter designated as the applicant, intending to oper-
ate a mental health special needs plan shall file an application for
such certificate on such forms as the commissioners shall prescribe, and
shall provide to the satisfaction of the commissioners the following:
(1) a copy of each of the applicant`s basic organizational documents
and agreements of the applicant and all network members, including all
contracts and agreements relating to the provision of mental health and
related support services;
(2) a copy of any current licensure or certification maintained by the
applicant;
(3) a description of any experience the applicant may have in provid-
ing mental health or related programs or services which are licensed,
certified, funded or approved by the department of health or office of
mental health, including identification of any disciplinary, administra-
tive or criminal proceedings related to such services in the past ten
years, the resolution thereof, and any other proceedings currently pend-
ing;
(4) full disclosure of the financial condition of the applicant and of
members of the board, officers, controlling persons, owners and part-
ners, including, but not limited to, a statement of the applicant`s
assets, resources, accounts receivable, liabilities and proposed sources
and uses of funds, and the most recent certified income statement and
balance sheet;
(5) a demonstration of the applicant`s ability to provide, or to
continue to provide, quality services;
(6) the geographic area served and to be served by the applicant;
(7) the applicant`s current capacity and proposed capacity to provide
or arrange for the provision of mental health and related support
services for a defined geographic area to a defined population;
(8) assurances that the applicant will use involuntary treatment,
treatment over objection and safety interventions, including restraint
and seclusion, only when and to the extent clinically necessary and
appropriate in accordance with applicable law and regulations;
(9) assurances that the applicant will implement procedures to commu-
nicate appropriately with non-English speaking enrollees or prospective
enrollees in accordance with subdivision (i) of section 7.09 of the
mental hygiene law;
(10) assurances that the applicant will make every effort to improve
and expand access to and coordination of services within the geographic
area to be served by applicant; and
(11) such other information as the commissioner and the commissioner
of mental health shall require.
(c) The commissioners shall not issue a certificate of authority to an
applicant unless the applicant has demonstrated to the satisfaction of
the commissioners that:
(1) it has defined an enrolled population of persons with serious
mental illness, children and adolescents with serious emotional disturb-
ances or both populations to which the mental health special needs plan
proposes to provide mental health services, it has demonstrated a will-
ingness to enroll any person who is eligible for enrollment within its
defined catchment area, and it has established a mechanism by which the
enrolled population and their families may participate in determining
the policies of the organization;
(2) it has defined a specific network of providers and facilities that
are capable of providing mental health and related support services to
the enrolled population described in subparagraph one of this paragraph;
(3) it has the capability of organizing, marketing, managing, promot-
ing and operating a mental health special needs plan;
(4) it is financially responsible and sound as provided in subdivision
eleven of this section;
(5) it has satisfactory character, competence and standing in the
community of the proposed incorporators, directors, sponsors and stock-
holders of the applicant and its network providers;
(6) it is willing and able to assure that necessary mental health
services will be provided in a timely manner, to assure the availability
and accessibility of adequate personnel and facilities, to enhance
continuity of care for enrollees and to implement procedures for refer-
rals, as requested, to appropriate care for family members of the
enrolled population;
(7) it has acceptable procedures established for the conduct of
outreach and enrollment of persons with serious mental illness and, as
appropriate, children and adolescents with serious emotional disturb-
ances, including persons who are homeless, mentally ill chemical abusers
and other vulnerable populations;
(8) it has acceptable procedures to facilitate discharges from hospi-
tals, as defined in section 1.03 of the mental hygiene law, to appropri-
ate settings;
(9) it has established a system which appropriately accounts for costs
and a uniform system of reports and audits meeting the requirements of
the commissioners; and
(10) it has met and will continue to meet the requirements of this
section and any regulations promulgated pursuant thereto.
(d) Notwithstanding any other requirements of this article, or any
regulations promulgated pursuant thereto, or any portions thereof, the
commissioners, may impose alternative requirements if they determine
that such alternative requirements will serve to promote the efficient
provision of mental health services, will promote the development of
mental health special needs plans, and that the proposed mental health
special needs plan will provide an appropriate cost-effective method for
the delivery of such services in a manner which will meet the needs of
the population to be served.
(e) The commissioner and the commissioner of mental health jointly
shall make a determination on an application after receipt of all
required and requested information and documentation.
(f) The commissioner and the commissioner of mental health jointly
shall review and approve current or proposed contracts or agreements
with current or prospective network members, and, provided further, that
the commissioners shall specifically review and approve any provisions
in such proposed contracts or agreements with prospective or existing
network members which specify any risk-sharing arrangements.
(g) The commissioner and the commissioner of mental health jointly may
revoke, limit or annul a mental health special needs plan certificate of
authority in accordance with the provisions of section forty-four
hundred four of this article. Notwithstanding any provision of law to
the contrary, any action taken pursuant to section forty-four hundred
four of this article or section twelve of this chapter shall be author-
ized to be taken jointly by the commissioner and the commissioner of
mental health.
(h) Notwithstanding subdivision eight of section forty-four hundred
one of this article or any other provision of this article, the commis-
sioner and the commissioner of mental health are authorized to develop
mental health special needs plans or other models to provide mental
health services to children and adolescents with serious emotional
disturbances and to certify, license or approve such plans or models in
accordance with this article or other applicable provisions of law, no
earlier than eighteen months after the effective date of this section.
2. Role of counties. (a) The commissioner and the commissioner of
mental health shall prepare a request for proposals for applications to
establish a mental health special needs plan, in cooperation with repre-
sentatives of county social services departments and local governmental
units, as defined in section 41.03 of the mental hygiene law.
(b) A county or group of counties may respond to a request for
proposals and apply to establish a mental health special needs plan in
accordance with subdivision one of this section. If a county or coun-
ties elect to do so, the commissioners, notwithstanding paragraph (a) of
this subdivision, shall prepare a request for proposals for applications
to establish a mental health special needs plan in the geographic area
to be served by the county plan to ensure, to the maximum extent practi-
cable, that potential enrollees in such area are offered a choice of
plans. The commissioners shall review all applications for such area
and, as appropriate, issue a certificate of authority to qualified
applicants as provided in subdivision one of this section; provided,
however, that, in the event that automatic enrollment is authorized in
the state, as provided in paragraph (a) of subdivision three of this
section, the commissioners shall not issue a certificate of authority to
a county or counties unless: (i) enrollment in a county operated plan
continues to be on a voluntary basis, or (ii) enrollees are offered a
choice of at least one mental health special needs plan other than the
county plan. A county or counties which has been issued such certif-
icate, shall enter into a contract with the commissioners for the
provision of mental health and related support services.
(c) A county or counties, which do not intend to submit such applica-
tion, may request in cooperation with representatives of local social
services districts and local governmental units the addition of terms to
the request for proposals, including the priority populations and the
geographic areas to be served. Applications shall be reviewed initially
by the local governmental unit or units and the appropriate community
services board or boards, as defined in section 41.03 of the mental
hygiene law, of the county or counties in which the applicant proposes
to operate. Such review may include prioritizing applications according
to a rating process approved by the commissioners. Upon completion of
such review, the appropriate local governmental unit or units shall
recommend applicants to the commissioners for approval to establish one
or more mental health special needs plans. The commissioners shall
review such recommendations to ensure that the applicant meets the
requirements of this section and, as appropriate, issue a certificate of
authority as provided in subdivision one of this section. At the
request of a county or counties, the commissioners, on the behalf of the
county or counties, shall review all applications for the geographic
area to be served and, as appropriate, issue a certificate of authority
to a qualified applicant as provided in subdivision one of this section.
(d) An applicant, excepting a county or counties which has been
awarded such certificate of authority, shall enter into a contract with
one or more counties, with the approval of the appropriate local govern-
mental unit or units, for the provision of mental health and related
support services. The commissioner and commissioner of mental health
shall develop a model contract to be used by counties. The terms of
such contract may be modified by the county or counties, subject to the
approval of the commissioners.
3. Enrollment and disenrollment. (a) Enrollment in a mental health
special needs plan shall be voluntary and persons eligible for enroll-
ment in such plan shall be afforded the opportunity to choose among such
plans, to the extent available in the locality where the person current-
ly resides; provided however that enrollment may be automatic after
federal approval of a waiver or waivers or other federal action required
to institute automatic enrollment and that persons automatically
enrolled in a mental health special needs plan shall have the opportu-
nity to withdraw from such plan in accordance with paragraph (g) of
subdivision four, paragraph (b) of subdivision three and subdivision
twelve of section three hundred sixty-four-j of the social services law.
The department and the office of mental health shall ensure, to the
maximum extent practicable, that individuals are provided with a choice
of mental health special needs plans.
(b) The commissioner and the commissioner of mental health shall
promulgate standards establishing criteria relating to enrollment and
disenrollment into mental health special needs plans consistent with any
applicable laws.
(c) Prior to enrollment in a mental health special needs plan, all
persons determined eligible for enrollment shall be provided with a full
written explanation of all fee-for-service and other options. In addi-
tion, enrollees shall be provided, at least annually, notice of their
right to disenroll from the plan, if applicable.
(d) Plans shall ensure that any new enrollee, whose mental health
provider is not a member of the plan`s provider network, who enrolls in
the plan, can continue with an ongoing course of treatment with the
enrollee`s current mental health provider during a transitional period
of up to sixty days from the effective date of enrollment. If an enrol-
lee elects to continue to receive care from such provider pursuant to
this paragraph, such care shall be authorized by the mental health
special needs plan only if such provider agrees: (i) to accept
reimbursement from the mental health special needs plan at rates estab-
lished by such plan as payment in full, which rates shall be no more
than the level of reimbursement applicable to similar providers within
the plan`s network for such services; (ii) to adhere to the plan`s qual-
ity assurance requirements and to provide to the plan necessary informa-
tion related to such care; and (iii) to otherwise adhere to the mental
health special needs plan`s policies and procedures including, but not
limited to procedures regarding referrals and obtaining pre-authoriza-
tion and a treatment plan approved by the mental health special needs
plan. In no event shall this paragraph be construed to require a mental
health special needs plan to provide coverage for benefits not otherwise
covered.
(e) Plans shall ensure that, for those enrollees whose mental health
provider leaves the plan`s network of providers, the enrollee shall be
permitted to continue an ongoing course of treatment with his or her
current mental health provider during a transitional period of up to
ninety days from the date of notice to the enrollee of the provider`s
disaffiliation from the plan`s network. If an enrollee elects to contin-
ue to receive care from such mental health provider pursuant to this
paragraph, such care shall be authorized by the mental health special
needs plan for the transitional period only if the mental health care
provider agrees: (i) to accept reimbursement from the mental health
special needs plan at rates established by such plan as payment in full,
which rates shall be no more than the level of reimbursement applicable
to similar providers within the mental health special needs plan`s
network for such services; (ii) to adhere to the mental health special
needs plan`s quality assurance requirements and to provide to the plan
necessary information related to such care; and (iii) to otherwise
adhere to the mental health special needs plan`s policies and procedures
including, but not limited to procedures regarding referrals and obtain-
ing pre-authorization and a treatment plan approved by the mental health
special needs plan. In no event shall this paragraph be construed to
require a mental health special needs plan to provide coverage for bene-
fits not otherwise covered;
(f) If an enrollee requests to change a mental health special needs
plan or disenroll from a mental health special needs plan pursuant to
this subdivision, the social services districts and the mental health
special needs plans shall implement such change in a timely manner in
accordance with standards established by the commissioners. When an
enrollee changes mental health special needs plans, the plan must effec-
tuate the timely transfer of all necessary medical records.
4. Benefit package. (a) A mental health special needs plan shall be
responsible for providing or arranging for the delivery of a benefit
package offering a full range of mental health and related support
services and assisting enrollees in the prudent selection of such
services, which shall include, but not be limited to:
(1) case management services;
(2) emergency and crisis services;
(3) inpatient services;
(4) outpatient services, which are licensed by the office of mental
health, or services of licensed professionals;
(5) medication therapy, utilizing drugs maintained in a special needs
drug formulary to be approved by the department, provided however, the
inclusion of drugs on such formulary shall not be interpreted to affect
other laws or regulations governing payment for drugs for other health
services provided to recipients of medical assistance;
(6) laboratory services, as may be necessary or appropriate for the
diagnosis and treatment of mental disorders including tests for monitor-
ing medication blood levels, and blood and urine tests for substance
use;
(7) diagnostic services as may be necessary and appropriate for the
diagnosis and treatment of mental disorders;
(8) alternative clinically appropriate services, specifically identi-
fied in the enrollee`s plan of services including, but not limited to,
peer support, self-help, clubhouse, other psychiatric hospital diversion
programs, and other support services or rehabilitation services, other
than rehabilitation services provided in residential facilities licensed
by the office of mental health;
(9) referral for medical services necessary to attain the goals
specifically identified in the enrollee`s plan of services;
(10) referral to and coordination with the applicable local social
services districts or basic health plans with regard to such other
medical assistance or other services as the enrollee may require; and
(11) development of appropriate methods of managing the mental health
needs of homeless persons, mentally ill chemical abusers and other
vulnerable populations, who may be enrolled in a mental health special
needs plan, to provide all necessary services are made available in a
timely manner, in accordance with prevailing standards of professional
medical practice, and provide or arrange for all appropriate referrals
and follow-up treatments.
(b) A mental health special needs plan shall provide or arrange for an
individualized plan of services for each enrollee. Such plan shall be
developed and implemented under the supervision of a physician. Each
enrollee shall have a mental health care coordinator who is a physician,
other licensed professional or member of another class of individuals
approved by the commissioner of mental health, and who shall be respon-
sible for coordinating the enrollee`s plan of services. The enrollee
shall be provided, to the extent practicable, with an opportunity to
choose such mental health care coordinator. The enrollee shall partic-
ipate in the development of his or her individual plan of service
consistent with the provisions of paragraph eleven of subdivision (a) of
section 33.02 of the mental hygiene law. Such participation shall be
documented in the enrollee`s case record and, as appropriate, reasons
for nonparticipation shall be documented in the enrollee`s case record.
5. Quality assurance. (a) The office of mental health shall be
responsible for establishing and maintaining, in consultation with the
department, a comprehensive quality assurance program for mental health
special needs plans. The office of mental health shall monitor the
performance, quality and utilization of such plans on at least an annual
basis. Such plans must describe and document the existence of a formal,
organized quality assurance program with the capacity to identify,
address and follow-up on issues which concern the care and services
delivered to enrollees. The office of mental health shall consult with
the department in establishing standards pursuant to this section. Such
standards shall include, but not be limited to, the following:
(1) performance and outcome-based quality measures which include, but
are not limited to, recovery and independent functioning;
(2) mechanisms for appropriateness, accessibility, timeliness and
quality of care;
(3) assessing protocols between the managed care provider and mental
health special needs plan to assure coordination of health and mental
health services delivered to enrollees;
(4) referral, coordination, monitoring and follow-up with regard to
other mental health and medical services providers, as appropriate, for
diagnosis and treatment, or direct provision of all necessary mental
health and related support services;
(5) methods of ensuring enrollees` access to specialty services
outside the plan`s network when the plan does not have a provider with
the appropriate training and experience in its network to meet the
particular mental health or health care needs of the enrollee;
(6) a management information system to support quality assurance
activities, which shall provide for collection and utilization of data,
including, but not limited to, enrollments, complaints, encounters and
specific performance indicators; and
(7) mechanisms for provision of information to enrollees in clear and
coherent terms that are commonly used in a culturally and linguistically
appropriate and understandable manner.
(b) The department, with the approval of the commissioner of mental
health, shall be responsible for establishing and maintaining a uniform
system of reports relating to the quality of care and services furnished
by mental health special needs plans.
(c) The commissioner and the commissioner of mental health shall have
access to patient specific medical information and enrollee medical
records, including encounter data, maintained by a mental health special
needs plan for the purposes of quality assurance and oversight. For the
purposes of this paragraph, the term "commissioner" as used in subdivi-
sion four of section forty-four hundred ten of this article, shall
include the commissioner of mental health. The provisions of sections
thirty-one hundred one, forty-five hundred four, forty-five hundred
seven and forty-five hundred eight of the civil practice law and rules
and section 33.13 of the mental hygiene law shall not bar disclosure to
the commissioner or the commissioner of mental health for such purposes.
6. Utilization review. A mental health special needs plan authorized
under this section is required to meet the utilization review require-
ments set forth in article forty-nine of this chapter.
7. Disclosure. Each enrollee and prospective enrollee prior to
enrollment in a mental health special needs plan shall be provided with
written disclosure of information related to enrollee benefits, rights
and obligations pursuant to section forty-four hundred eight of this
article.
8. Grievance procedure. A mental health special needs plan authorized
under this section shall be required to meet requirements set forth in
section forty-four hundred eight-a of this article.
9. Prohibitions. A mental health special needs plan authorized under
this section shall be required to meet requirements set forth in section
forty-four hundred six-c of this article.
10. Confidentiality. Except as provided in paragraph (c) of subdivi-
sion five of this section, any enrollee information maintained by a
mental health special needs plan and all network members shall be kept
confidential in accordance with sections 33.13 and 33.16 of the mental
hygiene law, section eighteen of this chapter and any other applicable
state or federal statutes. For the purposes of this section and subdi-
vision (d) of section 33.13 of the mental hygiene law, a mental health
special needs plan shall be considered a local services plan, as defined
in article forty-one of the mental hygiene law.
11. Finance. (a) The commissioner and the commissioner of mental
health shall not issue a certificate of authority to an applicant,
unless the applicant demonstrates that:
(1) it is financially responsible and sound and may be expected to
meet its obligations to its enrolled members. For the purpose of this
paragraph, "financially responsible" means the applicant is capable of
assuming full financial risk on a prospective basis for the provision of
covered services, except that it may allow providers to share financial
risk under the terms of their contracts, or it may obtain insurance or
make other arrangements for the cost of providing mental health special
needs services to enrollees; any insurance or other arrangements
proposed to meet this requirement shall be approved as to adequacy as a
prerequisite to the issuance of any mental health special needs certif-
icate of authority by the commissioners provided, however, the commis-
sioners shall consider the provisions of subparagraph two of this para-
graph. In making a determination of financial soundness, the
commissioner shall consider financial information, contracts and agree-
ments required as part of the application for a certificate of authority
and any other information that the commissioners shall deem necessary to
make that determination. For purposes of this section, any grants
awarded to an applicant contingent upon its approval as a mental health
special needs plan certified pursuant to this section, shall be consid-
ered when making a determination of fiscal soundness.
(2) it has established a system which appropriately accounts for costs
and a uniform system of reports and audits meeting the requirements of
the commissioner and the commissioner of mental health.
(b) Mental health special needs plans shall function distinctly from
any other comprehensive or non-comprehensive health plan operated by the
same organization, corporation, person, county or municipality or other
entities, and shall be clearly distinguished from any other functions
through the maintenance of separate records, reports and accounts for
the mental health special needs plan function.
(c) The commissioners shall establish reserve and escrow deposit
requirements for mental health special needs plans. Such requirements
may be promulgated in rules and regulations.
(d) The commissioner shall, jointly with the commissioner of mental
health, develop and certify capitated payment rates for mental health
special needs plans, subject to the approval of the director of the
division of the budget. In developing capitation rates, such commission-
ers shall be authorized to consider, at a minimum, the age, eligibility
category, historic cost and utilization of covered enrollees and covered
services and the expected impact of delivering services in a managed
care environment. Such commissioners shall be authorized to develop
other payment mechanisms, for plans in rural counties and for plans
serving children and adolescents with serious emotional disturbances,
including but not limited to partial capitation and case payment.
(e) Plans certified under this section shall submit financial reports
in a manner and frequency established by such commissioners.
(f) Such commissioners shall establish a stop-loss reinsurance program
for the mental health special needs plans. The stop-loss reinsurance
program shall be designed in a manner which promotes the development and
ongoing financial viability of the mental health special needs plan by
providing reasonable protection for catastrophic cases and adverse
selection.
(g) Such commissioners are authorized, subject to the approval of the
director of the budget and within amounts appropriated, to make grants
to those entities seeking certification to operate a mental health
special needs plan to aid in the development of the systems, organiza-
tional structures and networks necessary to operate the plan. Such
commissioners are authorized to develop criteria for distribution of the
grants. The grants may also be used to meet the capitalization stand-
ards and the reserve and escrow deposit requirements of this section.
12. Notwithstanding any inconsistent provision of law to the contrary,
any requirements relating to certification, rate setting, standard
setting, regulation and oversight of mental health special needs plans
established pursuant to this article, shall be subject to the approval
of the commissioners of health and mental health.
13. Nothing in this section shall be construed to require that a
health maintenance organization, certified pursuant to the provisions of
this article, apply for a mental health special needs plan certificate
of authority pursuant to this section; provided, however, that a health
maintenance organization, certified pursuant to the provisions of this
article, which proposes to operate a mental health special needs plan
shall be required to comply with all the provisions of this section.
14. The commissioner shall be authorized, jointly with the commission-
er of mental health, to promulgate regulations governing the operation
and oversight of mental health special needs plans authorized pursuant
to this section.
* NB Repealed 00/07/01
* S 4403-e. Primary care partial capitation providers; partial capita-
tion certificate of authority. 1. The commissioner may issue partial
capitation certificates of authority to qualified individual medical
services providers, counties or entities comprised of medical services
providers, applying on forms prescribed by the commissioner, seeking to
offer medical assistance services, including primary and preventive care
and case management of inpatient, emergency room, specialty, and pharma-
cy services, to recipients of medical assistance eligible to enroll in
managed care plans, on a partial capitation basis. Partial capitation
certificates of authority shall only be awarded to qualified applicants
in rural areas of the state where comprehensive health services plans,
as defined in section forty-four hundred one of this article, are not
yet available, provided that such certificate shall be awarded only
until full capitation becomes practicable. Comprehensive primary and
preventive care shall include all services and related ancillary proce-
dures routinely performed in a primary care physicians office, including
preventive care and immunizations in accordance with CTH periodic sched-
ules and routine obstetrical-gynecological services. Notwithstanding,
where partial capitation providers currently exist, they will be allowed
to continue operation. Provided, however, that a shared health facili-
ty, as defined in article forty-seven of this chapter, shall not be
eligible for such a certificate.
2. Applications for a partial capitation certificate of authority
shall include the following:
(a) current licensure or certification;
(b) a description of the applicant`s experience in providing the
services included as part of comprehensive primary and preventive care,
including identification of any disciplinary, administrative or criminal
proceedings related to such license, certification or services and the
resolution thereof;
(c) a description of the applicant`s financial resources, together
with a copy of the applicant`s latest certified financial statement and
the medical malpractice insurance coverage maintained by such applicant;
(d) an assessment of the applicant`s ability to continue to provide
high quality services in exchange for payments and to assume the finan-
cial risk of operating on a partial capitation basis;
(e) the geographic area to be served by the applicant;
(f) the applicant`s current capacity, and proposed capacity to provide
or directly arrange for the provision of medical care and services to
persons eligible for medical assistance;
(g) a statement of intent to contract from the local social services
district in which they will operate;
(h) a statement describing procedures to be used to monitor the quali-
ty of care provided by the plan;
(i) such other information as the commissioner shall require; and
(j) in the case of an application from a local social services
district, such comparable information as the commissioner may require.
3. The commissioner may issue a partial capitation certificate of
authority to an applicant that meets the following criteria:
(a) the applicant can demonstrate its ability to control, arrange for
and manage in-patient hospital and emergency room care through written
agreements with participating hospitals;
(b) the applicant is board-certified or board-eligible in his or her
area of specialty, or has completed an accredited residency program, or
has admitting privileges at one or more hospitals, or in the case of an
entity, all medical services providers affiliated with the applicant are
board-certified or board-eligible in his or her area of specialty, has
completed an accredited residency program, or has admitting privileges
at one or more hospitals;
(c) the applicant directly provides or arranges for the delivery of
comprehensive primary and preventive care and services and access to
medical advice and emergency care on a twenty-four hour basis;
(d) the applicant has adequate medical malpractice liability insurance
coverage;
(e) the applicant has demonstrated it is financially responsible and
may be expected to meet its obligations to its enrolled members. For
purposes of this paragraph, "financially responsible" means that the
applicant shall assume financial risk on a prospective basis for the
provision of comprehensive primary care and preventive services, and can
support the necessary administrative costs associated with the activ-
ities of a partial capitation plan, for its enrolled members;
(f) the applicant has demonstrated the ability to provide high quality
care, and to monitor the quality of care provided via an acceptable
formal quality assurance program;
(g) the local social services district has provided written evidence
of its intention to contract with the plan; and
(h) the applicant has demonstrated the ability to track and monitor
all services provided to its enrollees, and its ability to submit peri-
odic cost and utilization reports, as the commissioner may require.
* NB Repealed 00/07/01
* S 4403-f. Managed long term care plans. 1. Definitions. As used in
this section:
(a) "Managed long term care plan" means an entity that has received a
certificate of authority pursuant to this section to provide, or arrange
for, health and long term care services, on a capitated basis in accord-
ance with this section, for a population which the plan is authorized to
enroll.
(b) "Eligible applicant" means an entity controlled or wholly owned by
one or more of the following: a hospital as defined in subdivision one
of section twenty-eight hundred one of this chapter; a home care agency
licensed or certified pursuant to article thirty-six of this chapter; an
entity that has received a certificate of authority pursuant to sections
forty-four hundred three, forty-four hundred three-a or forty-four
hundred eight-a of this article (as added by chapter six hundred thir-
ty-nine of the laws of nineteen hundred ninety-six), or a health mainte-
nance organization authorized under article forty-three of the insurance
law; or a not-for-profit organization which has a history of providing
or coordinating health care services and long term care services to the
elderly and disabled.
(c) "Chronically ill" shall be as defined by the commissioner.
(d) "Operating demonstration" means the following entities: the social
health maintenance organization authorized by chapter six hundred two of
the laws of nineteen hundred eighty-two; and the chronic care management
demonstration programs authorized by chapters six hundred fifty-three of
the laws of nineteen hundred eighty-four, chapter five hundred thirty of
the laws of nineteen hundred eighty-eight, chapter five hundred ninety-
seven of the laws of nineteen hundred ninety-four and chapter eighty-one
of the laws of nineteen hundred ninety-five as amended.
(e) "Approved managed long term care demonstration" means the sites
approved by the commissioner to participate in the "Evaluated Medicaid
Long Term Care Capitation Program"; the chronic care management demon-
stration program authorized by chapter thirty-nine of the laws of nine-
teen hundred ninety-seven; and any demonstration authorized pursuant to
paragraphs (d) and (e) of subdivision six of this section.
(f) "Health and long term care services" means services including, but
not limited to primary care, acute care, home and community-based and
institution-based long term care and ancillary services that are neces-
sary to meet the needs of persons whom the plan is authorized to enroll.
2. Certificate of authority; form. An eligible applicant shall submit
an application for a certificate of authority to operate a managed long
term care plan upon forms, and within such time, as may be prescribed by
the commissioner. Such eligible applicant shall submit information and
documentation to the commissioner which shall include, but not be limit-
ed to:
(a) a description of the service area proposed to be served by the
plan with projections of enrollment that will result in a fiscally sound
plan;
(b) a description of the proposed target population and the marketing
plan;
(c) a description that demonstrates the cost-effectiveness of the
program as compared to the cost of services clients would otherwise have
received;
(d) adequate documentation of the appropriate licenses, certifications
or approvals to provide care as planned, including, if appropriate,
affiliation agreements or contracts with such providers as may be neces-
sary to provide the full complement of services required to be provided
under this section.
3. Certificate of authority; approval. The commissioner shall not
approve an application for a certificate of authority unless the appli-
cant demonstrates to the commissioner`s satisfaction:
(a) the relative cost effectiveness to the medical assistance program
when compared to other managed long term care plans proposing to serve,
or serving, comparable populations;
(b) that it will have in place acceptable quality-assurance mech-
anisms, grievance procedures, mechanisms to protect the rights of enrol-
lees and case management services to ensure continuity, quality, appro-
priateness and coordination of care;
(c) that it will include an enrollment process which shall ensure that
enrollment in the plan is informed and voluntary by enrollees or their
representatives and a voluntary disenrollment process. The application
shall include the specific grounds that would warrant involuntary disen-
rollment provided, however, an otherwise eligible enrollee shall not be
involuntarily disenrolled on the basis of health status;
(d) satisfactory evidence of the character and competence of the
proposed operators and reasonable assurance that the applicant will
provide high quality services to an enrolled population;
(e) sufficient management systems capacity to meet the requirements of
this section and the ability to efficiently process payment for covered
services;
(f) readiness and capability to: achieve full capitation on a sched-
uled basis for services reimbursed pursuant to title XVIII of the feder-
al social security act or capability and protocols for benefit coordi-
nation for services reimbursed pursuant to such title and all other
applicable benefits, with such benefit coordination including, but not
limited to, measures to support sound clinical decisions, reduce admin-
istrative complexity, coordinate access to services, maximize benefits
available pursuant to such title and ensure that necessary care is
provided;
(g) readiness and capability to achieve full capitation on a scheduled
basis for services reimbursed pursuant to title XIX of the federal
social security act;
(h) willingness and capability of taking, or cooperating in, all steps
necessary to secure and integrate any potential sources of funding for
services provided by the managed long term care plan, including, but not
limited to, funding available under titles XVI, XVIII, XIX and XX of the
federal social security act, the federal older Americans act of nineteen
hundred sixty-five, as amended, or any successor provisions subject to
approval of the director of the state office for aging, and through
financing options such as those authorized pursuant to section three
hundred sixty-seven-f of the social services law; and
(i) that the arrangements for health and long term care services
ensure the availability and accessibility of such services to the
proposed enrolled population.
4. Role of the superintendent of insurance. (a) The superintendent of
insurance, in consultation with the commissioner with regard to fiscal
solvency, shall be responsible for evaluating, approving and regulating
all matters relating to premium rates subject to paragraph (c) of this
subdivision, enrollee contracts and fiscal solvency, including reserves,
surplus and provider contracts to the extent such contracts relate to
fiscal solvency matters. The superintendent of insurance may promulgate
regulations to implement this section. The superintendent of insurance,
in the administration of this subdivision:
(i) shall be guided by the standards which govern the fiscal solvency
of a health maintenance organization, provided, however, that the super-
intendent of insurance shall recognize the specific delivery components,
operational capacity and financial capability of the eligible applicant
for a certificate of authority;
(ii) shall not apply financial solvency standards that exceed those
required for a health maintenance organization;
(iii) shall establish reasonable capitalization and contingency
reserve requirements. Where the population enrolled in a managed long
term care plan is substantially composed of chronically ill individuals
receiving services under title XIX of the federal social security act,
the superintendent of insurance shall take into consideration the avail-
ability of services to such chronically ill individuals under such title
in the event that the managed long term care plan is unable to meet its
contractual obligations. The establishment of reasonable capitalization
and contingency reserve requirements for managed long term care plans
substantially composed of chronically ill individuals receiving services
under title XIX of the federal social security act shall also be subject
to the approval of the commissioner;
(iv) when establishing capitalization and contingency reserve require-
ments, may exclude revenue and expenses derived from chronically ill
individuals under title XIX of the federal social security act who are
in a nursing facility in a managed long term care plan.
(b) Standards established pursuant to this subdivision shall be
adequate to protect the interests of enrollees in managed long term care
plans. The superintendent of insurance shall be satisfied that the
eligible applicant is financially sound, and has made adequate
provisions to pay for services:
(i) that are furnished by providers that are not affiliated with the
eligible applicant;
(ii) to meet the specialized health care needs of enrollees needing
care at specialty care centers; and
(iii) for which claims are submitted after the period for which the
eligible applicant will receive payments.
(c) A managed long term care plan shall have its premiums determined
in accordance with the insurance law except where enrollees are eligible
to receive services under title XIX of the federal social security act,
in which case rates shall be established pursuant to subdivision eight
of this section.
5. Applicability of other laws. (a) A managed long term care plan or
approved managed long term care demonstration shall be subject to the
provisions of the insurance law and regulations applicable to health
maintenance organizations, this article and regulations promulgated
pursuant thereto. To the extent that the provisions of this section are
inconsistent with the provisions of this chapter or the provisions of
the insurance law, the provisions of this section shall prevail.
(b) Notwithstanding chapter thirty-nine of the laws of nineteen
hundred ninety-seven, the provisions of this section shall apply to the
chronic care management demonstration authorized by such chapter.
6. Approval authority. (a) The commissioner, pursuant to a request for
proposals selection process, after receiving from the superintendent of
insurance the evaluations and approvals required pursuant to this
section, shall issue no more than twenty-four certificates of authority
to eligible applicants for a managed long term care plan which satisfies
the conditions under this section, provided that:
(i) for the purposes of issuance of no more than twenty-four certif-
icates, such certificates shall be exclusive of those certificates
issued pursuant to paragraphs (b) and (c) of this subdivision, provided,
however, that such certificates shall be inclusive of those certificates
issued to entities initially authorized to operate as an approved
managed long term care demonstration pursuant to paragraph (e) of this
subdivision;
(ii) no more than five of the twenty-four certificates of authority,
inclusive of those certificates issued to entities initially authorized
to operate as an approved managed long term care demonstration pursuant
to paragraph (e) of this subdivision may be issued to eligible appli-
cants which are, or are owned or controlled by one or more entities that
have received a certificate of authority pursuant to either section
forty-four hundred three, forty-four hundred three-a or forty-four
hundred eight-a of this article (as added by chapter six hundred thir-
ty-nine of the laws of nineteen hundred ninety-six) or a health mainte-
nance organization organized under article forty-three of the insurance
law provided further, that no more than one such certificate may be
issued to an eligible applicant described in this subparagraph in the
first twelve months following the effective date of this section, and no
more than two such certificates may be issued to eligible applicants
described in this subparagraph in the first twelve months commencing
with the selection, pursuant to a request for proposals, of eligible
applicants to operate managed long term care plans pursuant to this
paragraph. For purposes of this subparagraph, "control" shall exist if
an entity or entities designated in this subparagraph directly or indi-
rectly own, control, or hold the power to vote ten percent or more, in
the aggregate, of the voting securities or voting rights of such eligi-
ble applicant, or are corporate members of an eligible applicant organ-
ized as a not-for-profit corporation;
(iii) absent federal approvals as may be necessary to achieve the full
capitation requirements of paragraph (g) of subdivision three of this
section, the commissioner shall approve no more than eight certificates
of authority pursuant to this paragraph to operate a managed long term
care plan which requires such federal approvals.
(b) An operating demonstration shall be issued a certificate of
authority as a managed long term care plan upon a determination by the
commissioner, subject to the necessary evaluations, approvals and regu-
lations of the superintendent of insurance as stated in this section,
that such demonstration complies with the operating requirements for a
managed long term care plan under this section. Except as otherwise
expressly provided in paragraphs (d) and (e) of subdivision seven of
this section, nothing in this section shall be construed to affect the
continued legal authority of an operating demonstration to operate its
previously approved program.
(c) An approved managed long term care demonstration shall be issued a
certificate of authority as a managed long term care plan upon a deter-
mination by the commissioner, subject to the necessary evaluations,
approvals and regulations of the superintendent of insurance set forth
in this section, that such demonstration complies with the operating
requirements for a managed long term care plan under this section.
Notwithstanding any inconsistent provision of law to the contrary, all
authority for the operation of approved managed long term care demon-
strations which have not been issued a certificate of authority as a
managed long term care plan, shall expire one year after the adoption of
regulations implementing managed long term care plans.
(d) The commissioner may, contingent upon approval of federal waivers
and subject to the approval of the director of the budget, authorize the
continuing care network demonstration program sites in Monroe county to
operate as approved managed long term care demonstrations and may permit
such sites to serve enrollees who are sixty-five and older and not
chronically ill.
(e) The majority leader of the senate and the speaker of the assembly
may each designate in writing up to four eligible applicants as approved
managed long term care demonstrations. Subsequent to such designation,
the commissioner and the superintendent of insurance shall impose terms
and conditions pursuant to a written agreement with each such demon-
stration, not inconsistent with this section, under which such demon-
strations shall be authorized to operate.
(f) The commissioner and the superintendent of insurance shall impose
terms and conditions pursuant to a written agreement with each approved
managed long term care demonstration, not inconsistent with this
section, under which such demonstrations shall be authorized to operate.
7. Program oversight and administration. (a)(i) The commissioner
shall promulgate regulations to implement this section and to ensure the
quality, appropriateness and cost-effectiveness of the services provided
by managed long term care plans. The commissioner may waive rules and
regulations of the department, including but not limited to, those
pertaining to duplicative requirements concerning record keeping, boards
of directors, staffing and reporting, when such waiver will promote the
efficient delivery of appropriate, quality, cost-effective services and
when the health, safety and general welfare of enrollees will not be
impaired as a result of such waiver. In order to achieve managed long
term care plan system efficiencies and coordination and to promote the
objectives of high quality, integrated and cost effective care, the
commissioner may establish a single coordinated surveillance process,
allow for a comprehensive quality improvement and review process to meet
component quality requirements, and require a uniform cost report. The
commissioner shall require managed long term care plans to utilize qual-
ity improvement measures, based on health outcomes data, for internal
quality assessment processes and may utilize such measures as part of
the single coordinated surveillance process.
(ii) Notwithstanding any inconsistent provision of the social services
law to the contrary, the commissioner shall, pursuant to regulation,
determine whether and the extent to which the applicable provisions of
the social services law or regulations relating to approvals and author-
izations of, and utilization limitations on, health and long term care
services reimbursed pursuant to title XIX of the federal social security
act, including, but not limited to, fiscal assessment requirements, are
inconsistent with the flexibility necessary for the efficient adminis-
tration of managed long term care plans and such regulations shall
provide that such provisions shall not be applicable to enrollees or
managed long term care plans, provided that such determinations are
consistent with applicable federal law and regulation.
(b) The commissioner shall, to the extent necessary, submit the appro-
priate waivers, including, but not limited to, those authorized pursuant
to sections eleven hundred fifteen and nineteen hundred fifteen of the
federal social security act, or successor provisions, and any other
waivers necessary to achieve the purposes of high quality, integrated,
and cost effective care and integrated financial eligibility policies
under the medical assistance program or pursuant to title XVIII of the
federal social security act. Copies of such original waiver applica-
tions shall be provided to the chairman of the senate finance committee
and the chairman of the assembly ways and means committee simultaneously
with their submission to the federal government.
(c)(i) The commissioner may establish interim enrollment thresholds
which are less than the projected total enrollment in a plan for the
purpose of making a determination of the plan`s ability to enroll addi-
tional persons above the established thresholds while providing high
quality and accessible care. Total enrollment of persons enrolled in
managed long term care plans certified under paragraph (a) of subdivi-
sion six of this section or initially authorized to operate as an
approved managed long term care demonstration under paragraph (e) of
such subdivision, shall not exceed, in the aggregate, twenty-five thou-
sand persons who were chronically ill and eligible for services under
title XIX of the federal social security act at the time of enrollment
and twenty-five thousand persons who were not chronically ill at the
time of enrollment.
(ii) A managed long term care plan shall not use deceptive or coercive
marketing methods to encourage participants to enroll. A managed long
term care plan shall not distribute marketing materials to potential
enrollees until such plan has submitted such materials to the commis-
sioner, the superintendent of insurance and the director of the state
office for the aging.
(iii) The commissioner shall ensure, through periodic reviews of
managed long term care plans, that enrollment was a voluntary and
informed choice; such plan has only enrolled persons whom it is author-
ized to enroll, and plan services are promptly available to enrollees
when appropriate. Such periodic reviews shall be made according to stan-
dards as determined by the commissioner in regulations.
(d) Notwithstanding any provision of law, rule or regulation to the
contrary and subject to the availability of funds, the commissioner
shall issue a request for proposals to carry out reviews of enrollment
and assessment activities in managed long term care plans and operating
demonstrations with respect to enrollees eligible to receive services
under title XIX of the federal social security act to determine if
enrollment meets the requirements of subparagraph (iii) of paragraph (c)
of this subdivision; and that assessments of such enrollees` health,
functional and other status, for the purpose of adjusting premiums, were
accurate. The request for proposals shall be developed, and proposals
evaluated, in consultation with the local commissioners representing the
several regions of the state. Evaluations shall address each bidder`s
ability to ensure that enrollments in such plans are promptly reviewed
and that medical assistance required to be furnished pursuant to title
eleven of article five of the social services law will be appropriately
furnished to the recipients for whom the local commissioners are respon-
sible pursuant to section three hundred sixty-five of such title and
that plan implementation will be consistent with the proper and effi-
cient administration of the medical assistance program and managed long
term care plans.
(e) Until such time as the provisions of paragraph (d) of this subdi-
vision and the risk adjustment mechanisms referred to in subdivision
eight of this section are both implemented to the satisfaction of the
commissioner or January first, nineteen hundred ninety-nine, whichever
is earlier: (i) with respect to each managed long term care plan, the
commissioner may continue to delegate some, or all, of the tasks identi-
fied in paragraph (d) of this subdivision to local districts provided
that the agreement between the department and such plan pursuant to
paragraph (o) of subdivision two of section three hundred sixty-five-a
of the social services law or between the department and such demon-
stration clearly reflects such delegation; (ii) an operating demon-
stration shall, with respect to tasks performed by the local district in
relation to such demonstrations, have the option of continuing to oper-
ate under its existing agreement with a local district or, in the event
that an approved managed long term care demonstration enters into a
subsequent agreement with such district, to operate under the same or
similar terms and conditions as contained in such subsequent agreement
with respect to such tasks.
(f) The commissioner shall set a schedule for achievement of full
capitation for services reimbursed under title XIX of the federal social
security act which shall reflect the shortest feasible timelines
consistent with any federal approvals required to achieve full capita-
tion and the commissioner shall monitor each managed long term care
plan`s movement to full capitation according to such schedule.
(g) The commissioner shall ensure that protocols for benefit coordi-
nation, if applicable, have been implemented and are consistent with the
requirements of this section.
(h) The commissioner may, in his or her discretion for the purpose of
protection of enrollees, impose measures including, but not limited to,
bans on further enrollments and requirements for use of enrollment
brokers until any identified problems are resolved to the satisfaction
of the commissioner.
(i) Continuation of a certificate of authority issued under this
section, subject to the necessary evaluations, approvals and regulations
of the superintendent of insurance, shall be contingent upon satisfac-
tory performance by the managed long term care plan in the delivery,
continuity, accessibility, cost effectiveness and quality of the
services to enrolled members; compliance with applicable provisions of
this section and rules and regulations promulgated thereunder; the
continuing fiscal solvency of the organization; and, federal financial
participation in payments on behalf on enrollees who are eligible to
receive services under title XIX of the federal social security act.
(j) The commissioner shall ensure that (i) a process exists for the
resolution of disputes concerning the accuracy of assessments performed
pursuant to paragraphs (d) and (e) of this subdivision; and (ii) the
tasks described in paragraphs (d) and (e) of this subdivision are
consistently administered.
8. Payment rates for managed long term care plan enrollees eligible
for medical assistance. The commissioner, in consultation with the
superintendent of insurance, shall establish payment rates for services
provided to enrollees eligible under title XIX of the federal social
security act. Such payment rates shall be subject to approval by the
director of the division of the budget and shall reflect savings to both
state and local governments when compared to costs which would be
incurred by such program if enrollees were to receive comparable health
and long term care services on a fee-for-service basis in the geographic
region in which such services are proposed to be provided. Payment rates
may be risk-adjusted to take into account the characteristics of enrol-
lees, or proposed enrollees, including, but not limited to: frailty,
disability level, health and functional status, age, gender, the nature
of services provided to such enrollees, and other factors as determined
by the commissioner in consultation with the superintendent of insur-
ance. Any such risk adjusted premiums may also be combined with disin-
centives or requirements designed to mitigate any incentives to obtain
higher payment categories.
9. Reports. The department shall provide an interim report to the
governor, temporary president of the senate and the speaker of the
assembly on or before April first, two thousand three and a final report
on or before April first, two thousand six on the results of the managed
long term care plans under this section. Such results shall be based on
data provided by the managed long term care plans and shall include but
not be limited to the quality, accessibility and appropriateness of
services; consumer satisfaction; the mean and distribution of impairment
measures of the enrollees by payor for each plan; the current method of
calculating premiums and the cost of comparable health and long term
care services provided on a fee-for-service basis for enrollees eligible
for services under title XIX of the federal social security act; and the
results of periodic reviews of enrollment levels and practices. Such
reports shall contain a section prepared by the superintendent of insur-
ance as to the results of the plans approved in accordance with this
section concerning the matters regulated by the superintendent of insur-
ance. Such reports shall also provide data on the demographic and clin-
ical characteristics of enrollees, voluntary and involuntary disenroll-
ments from plans, utilization of services and shall examine the
feasibility of increasing the number of plans that may be approved.
Data collected pursuant to this section shall be available to the public
in an aggregated format to protect individual confidentiality, however
under no circumstance will data be released on items with cells with
smaller than statistically acceptable standards.
10. Managed long term care advisory council. (a) There is hereby
established a council to advise the commissioner and the superintendent
of insurance on issues related to managed long term care. The council
shall consist of thirteen members who shall be appointed as follows:
seven by the governor, one of whom shall serve as the chair; two each by
the temporary president of the senate and the speaker of the assembly;
and one each by the minority leader of the senate and the minority lead-
er of the assembly. The appointees shall be persons knowledgeable in the
delivery or financing of continuing care services, or shall have a
demonstrated commitment to improving the quality of care to the elderly,
the chronically ill and the disabled, or shall be persons who are
enrolled in a managed long term care plan or demonstration operating
under this section, or their representatives. No fewer than five of the
thirteen members shall be persons who are enrolled in a plan or demon-
stration operating under this section, or their representatives. In
addition to the thirteen appointed members, the commissioner, the super-
intendent of insurance and the director of the office for the aging
shall serve as non-voting ex-officio members of the advisory council.
(b) The council shall:
(i) review data and reports provided by the plans related to demo-
graphic and clinical characteristics of enrollees, consumer satisfaction
and complaints, the number and reasons for voluntary and involuntary
disenrollments, service utilization and costs as compared to fee-for-
service;
(ii) review the managed long term care plans` progress on meeting
enrollment targets and their marketing practices;
(iii) evaluate the adequacy of plans` efforts to integrate health and
long term care services and benefit coordination;
(iv) advise the commissioner and the superintendent of insurance on
strategies to increase the private and public/private financing of such
plans;
(v) advise the commissioner and the superintendent of insurance on the
feasibility of increasing the caps on enrollment or the number of plans
that may be approved; and
(vi) review and comment on the reports prepared pursuant to subdivi-
sion nine of this section.
* NB Repealed 06/12/31
S 4404. Health maintenance organizations; continuance of certificate
of authority. 1. Continuance by the commissioner of a certificate of
authority issued under section forty-four hundred three of this article
shall be contingent upon satisfactory performance by the organization as
to the delivery, continuity, accessibility and quality of the services
to which an enrolled member is entitled, compliance with the provisions
of this article and rules and regulations promulgated thereunder, and
the continuing fiscal solvency of the organization as set out in this
section.
2. Except as provided in subdivision three of this section, the
commissioner may revoke, limit or annul a certificate of authority as of
the termination of the current period of all then existing enrollee
contracts, after a hearing, and only after a finding of unsatisfactory
performance or fiscal insolvency. However, in the event of such
revocation, limitation or annulment, the organization shall be
prohibited from entering into any new enrollee contracts as of the date
of notification of such action by the commissioner. Notification of
such action shall be given by the organization to each enrollee. The
commissioner shall give prior notice of such action to the
superintendent.
3. The commissioner may revoke or limit a certificate of authority,
after a hearing, for violations of any applicable statute or rules and
regulations which threatened to directly affect the health, safety or
welfare of any enrollee. Upon notice of his intent to revoke or limit a
certificate of authority, the commissioner may prohibit the organization
from entering into any new enrollee contracts pending final action and
may require notification of such action to be given by the organization
to each enrollee. The commissioner shall give prior notice to the
superintendent of his intent to prohibit the organization from entering
into any enrollee contracts. In any action pursuant to this subdivision,
the commissioner and the superintendent shall take action to assure the
continued insurance coverage of enrollees of the organization.
4. In addition to, or in lieu of, any revocation, limitation or
annulment, the commissioner may assess a penalty pursuant to section
twelve of this chapter for any violation of this chapter or rules and
regulations promulgated pursuant to this article.
5. All orders or determinations made in accordance with the provisions
of this section shall be subject to review as provided in article
seventy-eight of the civil practice law and rules. Application for such
review must be made within sixty days after service in person or by
registered mail of a copy of the order or determination upon the
organization.
S 4405. Health maintenance organizations; powers. The powers of health
maintenance organizations, in addition to any other powers conferred by
the laws under which such organization is constructed, shall include:
1. subject to the provisions of article twenty-eight of this chapter,
the purchase, lease, construction, renovation, operation, or maintenance
of hospitals, medical facilities, or both, and their ancillary
equipment, and such property as may reasonably be required for its
principal office or for such other purposes as may be necessary in the
transaction of the business of the organization;
2. the furnishing of comprehensive health care services on a prepaid
basis through hospitals and other health care providers which are under
contract with, otherwise associated with, or employed by the health
maintenance organization;
3. the marketing, enrollment and administration of a comprehensive
health services plan;
4. the contracting with an insurer licensed in this state;
5. the offering, in addition to health care services, of benefits
covering out-of-area or emergency services;
6. the provision of additional health services not included in the
comprehensive health services plan on a fee-for-service basis, the
provision of health services on a fee-for-service basis to persons who
are not members of the enrolled population;
7. the entering into contracts in furtherance of the purposes of this
article;
8. the acceptance from government agencies, private agencies,
corporations, associations, groups, individuals, or other persons,
payments covering all or part of the cost of health care services
provided to enrollees, in accordance with the provisions of the plan and
this chapter; and
9. the indemnification of enrollees for the services of health care
providers, other than primary care practitioners responsible for
supervising and coordinating the care of enrollees, not participating in
a plan to the extent authorized in section forty-four hundred six of
this article; and
10. notwithstanding any other provision of law, to advertise the
comprehensive health services which it renders and the plan relating to
the rendition of such services, provided, however, that all information
disseminated to the public shall be strictly factual in nature and
accurate in all respects and shall not in any way be misleading to the
public.
Sec. 4405-a. Immunizations against poliomyelitis, mumps,
measles, diphtheria and rubella. 1. It shall be the duty of the
administrative officer or other person in charge of each health
maintenance organization, as defined in this article, to inquire
of each person in its care under the age of eighteen, or of a
person in parental relation to such person, whether all necessary
immunizations have been received for poliomyelitis, mumps,
measles, diphtheria and rubella and, if not, to make available
such immunizations and a certificate or certificates of such
immunizations.
2. This section shall not apply to children whose parent,
parents, or guardian are bona fide members of a recognized
religious organization whose teachings are contrary to the
practices herein required.
3. If any physician licensed to practice medicine in this
state certifies that any such immunization may be detrimental to
a child`s health, the requirements of this section shall be
inapplicable until such immunization is found no longer to be
detrimental to the child`s health.
S 4405-b. Duty to report. 1. (a) A health maintenance organization
licensed pursuant to article forty-three of the insurance law or
certified pursuant to this chapter shall make a report to the
appropriate professional disciplinary agency within thirty days of the
occurrence of any of the following: (i) the termination of a health
care provider contract pursuant to section forty-four hundred six-d of
this article for reasons relating to alleged mental or physical
impairment, misconduct or impairment of patient safety or welfare;
(ii) the voluntary or involuntary termination of a contract or
employment or other affiliation with such organization to avoid the
imposition of disciplinary measures; or (iii) the termination of a
health care provider contract in the case of a determination of fraud
or in a case of imminent harm to patient health.
(b) An organization shall make a report to be made to the
appropriate professional disciplinary agency within sixty days of
obtaining knowledge of any information that reasonably appears to show
that a health professional is guilty of professional misconduct as
defined in article one hundred thirty or one hundred thirty-one-A of
the education law. A violation of this subdivision shall not be
subject to the provisions of section twelve-b of this chapter.
2. Reports of possible professional misconduct made pursuant to this
section shall be made in writing to the appropriate professional
disciplinary agency. Written reports shall include the following
information: the name, address, profession and license number of the
individual; and a description of the action taken by the organization
including the reason for the action and the date thereof, or the
nature of the action or conduct that led to the resignation,
termination of contract or withdrawal, and the date thereof.
3. (a) Any report or information furnished to an appropriate
professional discipline agency in accordance with the provisions of
this section shall be deemed a confidential communication and shall
not be subject to inspection or disclosure in any manner except upon
formal written request by a duly authorized public agency or pursuant
to a judicial subpoena issued in a pending action or proceeding.
(b) Any person, facility, organization or corporation which makes a
report pursuant to this section in good faith without malice shall
have immunity from any liability, civil or criminal, for having made
such report. For purposes of any proceeding, civil or criminal, the
good faith of any person required to make a report shall be presumed.
S 4406. Health maintenance organizations; regulation of contracts. 1.
The contract between a health maintenance organization and an enrollee
shall be subject to regulation by the superintendent as if it were a
health insurance subscriber contract, and shall include, but not be
limited to, all mandated benefits required by article forty-three of the
insurance law. Such contract shall fully and clearly state the benefits
and limitations therein provided or imposed, so as to facilitate under-
standing and comparisons, and to exclude provisions which may be
misleading or unreasonably confusing. Such contract shall be issued to
any individual and dependents of such individual and any group of fifty
or fewer employees or members, exclusive of spouses and dependents, or
any employee or member of the group, including dependents, applying for
such contract at any time throughout the year, and may include a pre-ex-
isting condition provision as provided for in section four thousand
three hundred eighteen of the insurance law. Subject to the creditable
coverage requirements of subsection (a) of section four thousand three
hundred eighteen of the insurance law, the organization may, as an
alternative to the use of a pre-existing condition provision, elect to
offer contracts without a pre-existing condition provision to such
groups but may require that coverage shall not become effective until
after a specified affiliation period of not more than sixty days after
the application for coverage is submitted. The organization is not
required to provide health care services or benefits during such period
and no premium shall be charged for any coverage during the period.
After January first, nineteen hundred ninety-six, all individual direct
payment contracts shall be issued only pursuant to sections four thou-
sand three hundred twenty-one and four thousand three hundred twenty-two
of the insurance law. Such contracts may not, with respect to an eligi-
ble individual (as defined in section 2741(b) of the federal Public
Health Service Act, 42 U.S.C. S 300gg-41(b), impose any pre-existing
condition exclusion.
2. (a) Upon approval of the commissioner, an organization may imple-
ment an out-of-plan benefits system that allows enrollees to use provid-
ers not participating in the plan pursuant to a contract, employment or
other association. The commissioner, in consultation with the super-
intendent, shall not approve an organization to implement an out-of-plan
benefits system unless the organization demonstrates that:
(i) the requirements of this article and any regulations promulgated
thereunder have been met and will continue to be met;
(ii) it can establish and maintain a contingent reserve fund of not
less than two percent of the entire net premium income for the calendar
year of the organization in addition to any other contingent reserve
fund required by the commissioner in regulations subject to the approval
of the superintendent; and
(iii) it has established mechanisms to ensure and monitor compliance
with the provisions of paragraph (b) of this subdivision.
(b) Except as provided in paragraph (c) of this subdivision, an organ-
ization may not permit the benefits provided pursuant to such out-of-
plan system to exceed ten percent of the total health care expenditures
of the organization, as determined on a quarterly basis, but such limi-
tation shall not apply to individual direct payment contracts issued
pursuant to section forty-three hundred twenty-two of the insurance law.
In determining the amount of benefits provided in connection with the
use of such providers, an organization shall not include benefits
provided pursuant to a referral made by a participating provider or
benefits provided in emergency situations.
(c) An organization may exceed the ten percent level by up to two
percent in any given quarter provided that the organization does not
exceed the ten percent level by the end of the following quarter.
(d) If the commissioner determines that an organization has permitted
the benefits provided pursuant to an out-of-plan system to exceed ten
percent, except as permitted by paragraph (b) or (c) of this subdivi-
sion, the commissioner may, where appropriate, assess an organization a
civil penalty not to exceed the amount determined by multiplying the
percentage permitted in excess of ten percent by the amount, in dollars,
of the difference between what the organization paid all inpatient
hospitals for such year and the amount such organization would have paid
such hospitals had it been a payor within the categories specified in
paragraph (b) of subdivision one of section twenty-eight hundred seven-c
of this chapter and not authorized to negotiate hospital rates. The
commissioner, in consultation with the superintendent, may revoke,
suspend or limit an approval issued pursuant to this subdivision for
non-compliance by the organization with any of the provisions of this
article or the rules and regulations promulgated thereunder.
(e) The indemnification of enrollees of the services of a non-partici-
pating provider may be subject to deductibles, copayments and/or coinsu-
rance approved by the superintendent.
(f) Nothing in this subdivision shall be construed to limit an organ-
ization`s ability to manage the care of enrollees or the types of health
services covered, to conduct utilization review of quality assurance
activities.
(g) The commissioner may prohibit an organization determined to have
an inadequate network of participating providers from permitting new
elections pursuant to this subdivision as of the date of notification of
such determination by the commissioner. Notification of such action
shall be given by the organization to each enrollee.
(h) An organization providing comprehensive health services under one
or more assumed names shall be deemed to be offering its plan through a
line of business corresponding to each such assumed name. An organiza-
tion may, pursuant to the provisions of this subdivision, permit enrol-
lees of one or more lines of business to elect to receive services from
providers not participating in such line or lines of business provided,
however, that with respect to each line of business such elections shall
be permitted only to the extent authorized pursuant to paragraphs (b)
and (c) of this subdivision.
(i) Nothing herein shall be deemed to prohibit a health maintenance
organization from offering services in connection with a company appro-
priately licensed pursuant to the insurance law.
3. Nothing in this section shall be construed to require a health
maintenance organization in its provision of a comprehensive health
services plan to meet the requirements of an insurer under the insurance
law.
4. If an enrollee requires nursing facility placement and is a resi-
dent of a continuing care retirement community authorized under article
forty-six of this chapter, the enrollee`s primary care practitioner must
refer the enrollee to that community`s nursing facility if medically
appropriate; if the facility agrees to be reimbursed at the health main-
tenance organization`s contract rate negotiated with similar providers
for similar services and supplies, or negotiates a mutually agreed upon
rate; and if the facility meets the health maintenance organization`s
guidelines and standards for the delivery of medical services.
S 4406-a. Arbitration provisions of health maintenance organization
contracts. 1. The enrollee contract of a health maintenance organization
may permit enrollees and adult members of the enrollee`s family who are
covered by such contract to elect to have all claims for damages because of
injury or death resulting from health care or treatment rendered or failed
to be rendered pursuant to the contract by a physician, dentist, hospital,
health maintenance organization or other health care provider subject to
binding arbitration, pursuant to article seventy-five-A of the civil
practice law and rules. For the purposes of this section, "health
maintenance organizations" shall include those health maintenance
organizations organized pursuant to this article or pursuant to article
forty-three of the insurance law. The enrollee contract may permit
arbitration elections to be executed on behalf of minor children or persons
judicially determined to be incompetent by a parent, legal guardian,
committee or conservator or other person legally authorized to enroll the
minor or incompetent person in a health maintenance organization.
Arbitration election notices, described in subdivisions two and three of
this section, must be executed by covered adult family members in order to
bind such persons to the arbitration election.
2. After receiving the approval of the superintendent of insurance,
pursuant to section five thousand six hundred five of the insurance law,
health maintenance organizations may provide arbitration election notices
to current enrollees and their covered adult family members. Such notice
shall contain the following provision in at least twelve point boldface
type immediately above spaces for the signature of the enrollee or covered
adult family member: "By signing this form, I am agreeing to have any
issue of alleged health care malpractice decided by neutral arbitration
rather than by a court trial before a judge or jury. (Health care
malpractice means claims for damages because of injury or death resulting
from health care or treatment rendered or failed to be rendered pursuant to
my health maintenance organization contract by the health maintenance
organization, a physician, dentist, hospital or other health care
provider.) I understand that I will be given the opportunity to cancel my
agreement, but that all claims arising during the time of my agreement will
be subject to arbitration. I understand that by signing the form, I am
deemed to have received and reviewed the information describing arbitration
that has been provided to me. I also understand that there is no
requirement that I sign this form and that my decision not to sign this
form will not in any way affect my membership or benefits in this health
maintenance organization."
3. After receiving the approval of the superintendent of insurance,
pursuant to section five thousand six hundred five of the insurance law,
health maintenance organizations may also provide arbitration election
notices, as specified in subdivision two of this section, to new enrollees
and their covered adult family members. In the alternative, a health
maintenance organization may, after receiving the superintendent`s
approval, elect to provide an alternative notice to new enrollees and their
covered adult family members that provides that new enrollees and their
covered adult family members shall be subject to the arbitration of claims
unless a form is executed by such persons that declines consent to the
arbitration of claims. A health maintenance organization that chooses to
provide such alternative notice shall provide an arbitration declination
form and notice to all new enrollees and their covered adult family members
with the following provision in a least twelve point boldface type
immediately above spaces for the signature of the enrollee or covered adult
family member: "Unless you sign this form to decline the option of
arbitration, by electing to enroll in this health maintenance organization,
you are agreeing to have any issue of health care malpractice decided by
neutral arbitration rather than by a court trial before a judge or jury.
(Health care malpractice means all claims for damages because of injury or
death resulting from health care or treatment rendered or failed to be
rendered pursuant to your health maintenance organization contract by the
health maintenance organization, a physician, dentist, hospital or other
health care provider.) If you do not sign this form to decline arbitration,
you will be given the opportunity to cancel your agreement to arbitrate
these claims, but all claims arising prior to the time that you cancel the
agreement will be subject to arbitration. You are entitled to receive
information describing arbitration before making this decision. Your
decision to sign this form to decline arbitration will not in any way
affect your membership or benefits in this health maintenance
organization."
4. Arbitration election notices may be provided, from time to time, by
health maintenance organizations to persons who have not agreed to
arbitration of such claims. The health maintenance organizations shall, in
a form and manner determined to be sufficient by the superintendent of
insurance and on at least an annual basis, provide notice to persons who
have agreed to arbitration of such claims that such persons may cancel
their agreement to arbitrate, including information as to how such person
may cancel the arbitration agreement; provided, however, that the agreement
to arbitrate shall remain in force during such person`s enrollment or
membership in the health maintenance organization unless the health
maintenance organization receives notification of such person`s
cancellation of the arbitration agreement or the health maintenance
organization withdraws its agreement to arbitrate and provides notice of
this fact to persons who elected arbitration.
5. Every such notice shall be accompanied by or be part of an information
brochure, prepared in accordance with section five thousand six hundred
four of the insurance law, which clearly explains the nature and scope of
arbitration and the procedures that will be used to conduct these
arbitration proceedings.
6. All claims arising from surgical, medical, dental and other health care
procedures performed or failed to be performed and treatment provided or
failed to be provided by a physician, dentist, hospital, health maintenance
organization or other health care provider pursuant to the enrollee
contract to an enrollee or a covered adult family member who signs the
arbitration election notice or who fails to sign the arbitration
declination form specified in subdivision three of this section shall be
subject to arbitration and such enrollees or covered adult family members
shall be bound by the agreement to arbitrate such claims. All physicians,
dentists, hospitals, health maintenance organizations and other health care
providers who provide or receive compensation for health care services
pursuant to the enrollee contract shall be bound by the agreement to
arbitrate.
7. Notwithstanding any inconsistent provisions of law, an agreement to
arbitrate which complies with the provisions of this section shall be
presumed valid.
S 4406-b. Primary and preventive obstetric and gynecologic care. 1.
The health maintenance organization shall not limit a female enrollee`s
direct access to primary and preventive obstetric and gynecologic
services from a qualified provider of such services of her choice from
within the plan to less than two examinations annually for such services
or to any care related to a pregnancy. In addition, the health
maintenance organization shall not limit direct access to primary and
preventive obstetric and gynecologic services required as a result of
such annual examinations or as a result of an acute gynecologic
condition, provided that such qualified provider discusses such services
and treatment plan with the enrollee`s primary care practitioner in
accordance with the requirements of the health maintenance organization.
2. It shall be the duty of the administrative officer or other person
in charge of each health maintenance organization to advise each female
enrollee, in writing, of the provisions of this section.
S 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 appro-
priate 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 or written
procedure 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.
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 cover-
age 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 prospec-
tive 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 deter-
mined to be due, and the dates upon which any such payments and adjust-
ments will be made;
(c) a description of the records or information relied upon to calcu-
late 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 disclo-
sure of personally identifiable patient information or information
related to other individual health care providers or the plan`s proprie-
tary data collection systems, software or quality assurance or utiliza-
tion 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.
6. Any contract provision, written policy or written procedure in
violation of this section shall be deemed to be void and unenforceable.
S 4406-d. Health care professional applications and terminations. 1.
A health care plan shall, upon request, make available and disclose to
health care professionals written application procedures and minimum
qualification requirements which a health care professional must meet
in order to be considered by the health care plan. The plan shall
consult with appropriately qualified health care professionals in
developing its qualification requirements.
2. (a) A health care plan shall not terminate a contract with a
health care professional unless the health care plan provides to the
health care professional a written explanation of the reasons for the
proposed contract termination and an opportunity for a review or
hearing as hereinafter provided. This section shall not apply in
cases involving imminent harm to patient care, a determination of
fraud, or a final disciplinary action by a state licensing board or
other governmental agency that impairs the health care professional`s
ability to practice.
(b) The notice of the proposed contract termination provided by the
health care plan to the health care professional shall include:
(i) the reasons for the proposed action;
(ii) notice that the health care professional has the right to
request a hearing or review, at the professional`s discretion, before
a panel appointed by the health care plan;
(iii) a time limit of not less than thirty days within which a
health care professional may request a hearing; and
(iv) a time limit for a hearing date which must be held within
thirty days after the date of receipt of a request for a hearing.
(c) The hearing panel shall be comprised of three persons appointed
by the health care plan. At least one person on such panel shall be a
clinical peer in the same discipline and the same or similar specialty
as the health care professional under review. The hearing panel may
consist of more than three persons, provided however that the number
of clinical peers on such panel shall constitute one-third or more of
the total membership of the panel.
(d) The hearing panel shall render a decision on the proposed action
in a timely manner. Such decision shall include reinstatement of the
health care professional by the health care plan, provisional
reinstatement subject to conditions set forth by the health care plan
or termination of the health care professional. Such decision shall be
provided in writing to the health care professional.
(e) A decision by the hearing panel to terminate a health care
professional shall be effective not less than thirty days after the
receipt by the health care professional of the hearing panel`s
decision; provided, however, that the provisions of paragraph (e) of
subdivision six of section four thousand four hundred three of this
article shall apply to such termination.
(f) In no event shall termination be effective earlier than sixty
days from the receipt of the notice of termination.
3. Either party to a contract may exercise a right of non-renewal at
the expiration of the contract period set forth therein or, for a
contract without a specific expiration date, on each January first
occurring after the contract has been in effect for at least one year,
upon sixty days notice to the other party; provided, however, that any
non-renewal shall not constitute a termination for purposes of this
section.
4. A health care plan shall develop and implement policies and
procedures to ensure that health care professionals are regularly
informed of information maintained by the health care plan to evaluate
the performance or practice of the health care professional. The
health care plan shall consult with health care professionals in
developing methodologies to collect and analyze health care
professional profiling data. Health care plans shall provide any such
information and profiling data and analysis to health care
professionals. Such information, data or analysis shall be provided on
a periodic basis appropriate to the nature and amount of data and the
volume and scope of services provided. Any profiling data used to
evaluate the performance or practice of a health care professional
shall be measured against stated criteria and an appropriate group of
health care professionals using similar treatment modalities serving a
comparable patient population. Upon presentation of such information
or data, each health care professional shall be given the opportunity
to discuss the unique nature of the health care professional`s patient
population which may have a bearing on the health care professional`s
profile and to work cooperatively with the health care plan to improve
performance.
5. No health care plan shall terminate a contract or employment, or
refuse to renew a contract, solely because a health care provider has:
(a) advocated on behalf of an enrollee;
(b) filed a complaint against the health care plan;
(c) appealed a decision of the health care plan;
(d) provided information or filed a report pursuant to section
forty-four hundred six-c of this article; or
(e) requested a hearing or review pursuant to this section.
6. Except as provided herein, no contract or agreement between a
health care plan and a health care professional shall contain any
provision which shall supersede or impair a health care professional`s
right to notice of reasons for termination and the opportunity for a
hearing or review concerning such termination.
7. Any contract provision in violation of this section shall be
deemed to be void and unenforceable.
8. 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.
9. For purposes of this section, "health care professional" shall
mean a health care professional licensed, registered or certified
pursuant to title eight of the education law.
S 4406-e. Access to end of life care. 1. For the purposes of this
section, "health care plan" means a health maintenance organization
licensed pursuant to article forty-three of the insurance law or certi-
fied pursuant to this article.
2. Every health care plan that provides coverage for hospital, surgi-
cal or medical care shall provide an enrollee diagnosed with advanced
cancer (with no hope of reversal of primary disease and fewer than sixty
days to live, as certified by the patient`s attending health care prac-
titioner) with coverage for an acute care facility or program specializ-
ing in the treatment of the terminally ill patients, if the patient`s
attending health care practitioner, in consultation with the medical
director of the facility or program, determines that the enrollee`s care
would appropriately be provided by the facility or program.
3. If the health plan disagrees with the provision or continuation of
care for the enrollee by the facility or program, the case shall be
subject to an expedited internal review in accordance with section
forty-nine hundred four of this chapter and external review in accord-
ance with the provisions of paragraph (c) of subdivision two of section
forty-nine hundred fourteen of this chapter, provided further, that
until such decision is rendered, the provision or continuation of the
care shall not be refused by the health plan.
S 4407. Health maintenance organizations; employer requirements. 1.
All employers subject to the provisions of the unemployment insurance
law, except for those employers with fewer than twenty-five employees,
shall include in any health benefits plan offered to their employees,
the option of membership in a health maintenance organization which
provides or offers a comprehensive health services plan in accordance
with the provisions of this article, but only if such plan serves an
area in which twenty-five of such employer`s employees reside and the
organization has been issued a certificate of authority by the
commissioner.
2. For those employees of an employer represented by a bargaining
representative, the offer of the health maintenance organization
alternative shall be subject only to the collective bargaining process;
for those employees not represented by a bargaining representative, the
offer of the health maintenance organization alternative shall be made
directly to the employee.
3. (a) If there is more than one health maintenance organization
engaged in the provision of health services in the area in which the
employees of the employer reside, and if:
(i) one or more of such organizations provides more than one-half of
its comprehensive health services through physicians or other health
professionals who are members of the staff of the organization or of a
medical group (or groups) which contracts with the organization, and
(ii) one or more of such organizations provides its comprehensive
health services through contracts with an individual practice
association (or associations), individual physicians and other health
professionals under contract directly with the organization, or a
combination of an individual practice association (or associations),
medical group (or groups), physicians who are members of the staff of
the organization, and individual physicians and other health
professionals under contract directly with the organization,
then the employer shall, in accordance with regulations of the
commissioner, be required to offer the option of enrollment in at least
one organization described in subparagraph (i) of this paragraph and at
least one organization described in subparagraph (ii) of this paragraph
if the employer has twenty-five or more but fewer than two hundred
employees. If the employer has two hundred or more employees and the
employer`s principal office in this state is located outside of the
metropolitan region then the employer shall be required to offer the
option of enrollment in at least two organizations described in
subparagraph (i) of this paragraph and at least two organizations
described in subparagraph (ii) of this paragraph. If the employer has
two hundred or more employees and the employer`s principal office in
this state is located within the metropolitan region then the employer
shall be required to offer the option of enrollment in at least two
organizations described in subparagraph (i) of this paragraph and at
least two organizations described in subparagraph (ii) of this paragraph
and an additional organization from either subparagraph. For the
purposes of this section the metropolitan region is defined as the
counties of Westchester, Rockland, New York, Kings, Queens, Richmond,
Bronx, Nassau and Suffolk.
(b) If within any particular area of the state in which at least
twenty-five of such employer`s employees reside there are fewer health
maintenance organizations described in subparagraph (i) or (ii) of
paragraph (a) of this subdivision than the employer is required to
offer, then additional health maintenance organizations from
subparagraph (i) or (ii) of paragraph (a) of this subdivision shall be
offered; provided, however, that no employer with fewer than two hundred
employees shall be required to offer more than a total of two health
maintenance organizations, and no employer with two hundred or more
employees shall be required to offer more than a total of four health
maintenance organizations (or five such organizations if the employer`s
principal office is located within the metropolitan region) in any
particular area of the state. In the event fewer than the required
total minimum number of health maintenance organizations are available
in an area, the employer shall offer all health maintenance
organizations then certified to issue subscriber contracts in that area.
Nothing in this subdivision shall be deemed to prohibit an employer from
choosing to offer more health maintenance organizations to its employees
than are required under this subdivision.
4. No employer shall be required to pay more for health benefits as a
result of the application of this section than would otherwise be
required by any prevailing collective bargaining agreement or other
legally enforceable contract for the provision of health benefits
between an employer and his employees.
S 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; bene-
fit maximums, including benefit limitations; and exclusions of coverage,
including the definition of medical necessity used in determining wheth-
er 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 undertak-
en;
(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 informa-
tion 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 superinten-
dent of insurance 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 organ-
ization 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 bene-
fits; the toll-free telephone number which enrollees may use to file an
oral grievance; the timeframes and circumstances for expedited and stan-
dard 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 represen-
tative; a notice that all disputes involving clinical decisions will be
made by qualified clinical personnel; and that all notices of determi-
nation 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 with 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 stand-
ing 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 obtain-
ing 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 peri-
od of time may request access to a specialty care center and the proce-
dure 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 organiza-
tion;
(p) a description of how the health maintenance organization addresses
the needs of non-English speaking enrollees;
(q) notice of all appropriate mailing addresses and telephone numbers
to be utilized by enrollees seeking information or authorization; and
(r) a listing by specialty, which may be in a separate document that
is updated annually, of the name, address and telephone number of all
participating providers, including facilities, and, in addition, in the
case of physicians, board certification.
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 posi-
tions 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 subscrib-
er 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 formu-
laries 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 treat-
ments in clinical trials;
(i) provide individual health practitioner affiliations with partic-
ipating hospitals, if any;
(j) upon written request, provide specific written clinical review
criteria relating to a particular condition or disease and, where appro-
priate, 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 enrol-
lee or prospective enrollee in evaluating the covered services provided
by the organization;
(k) provide the written application procedures and minimum qualifica-
tion requirements for health care providers to be considered by the
health maintenance organization; and
(1) disclose other information as required by the commissioner,
provided that such requirements are promulgated pursuant to the state
administrative procedure act.
3. Nothing in this section shall prevent a health maintenance organ-
ization from changing or updating the materials that are made available
to enrollees.
4. If a primary care provider ceases participation in the health main-
tenance 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 mainte-
nance 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
insurance 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 enrol-
lees 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 super-
intendent of insurance 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.
S 4408-a. Integrated delivery systems. 1. Legislative purpose and
findings. The legislature intends to facilitate the ability of inte-
grated delivery systems to assume a larger role in delivering a full
array of health care services, from primary and preventive care through
acute inpatient hospital and post-hospital care to a defined population
for a determined price. The legislature finds that the formation and
operation of integrated delivery systems under this section will promote
the purposes of federal and state anti-referral statutes which are to
reduce over-utilization and expenditures and finds that such statutes
should not be interpreted to interfere with the development of such
integrated delivery systems or impose liability for arrangements between
an integrated delivery system certified pursuant to this section and its
participating providers and entities. The legislature further finds that
the development of integrated delivery systems will reduce costs and
enhance quality. It intends that systems acting pursuant to a certif-
icate of authority issued under this section shall not be subject to
state or federal antitrust liability for doing so.
2. Definitions. For the purposes of this section:
(a) "Applicant" means a separate legal entity created for the purpose
of establishing and operating an integrated delivery system. Such enti-
ty shall be composed of or controlled by one or more affiliated provid-
ers or one or more affiliated groups of providers.
(b) "Provider" means an entity licensed or certified under article
twenty-eight or thirty-six of this chapter; an entity licensed or certi-
fied under article sixteen, twenty-three, thirty-one or thirty-two of
the mental hygiene law; or a health care practitioner, or combination of
health care practitioners, licensed under title eight of the education
law. Every provider shall be: (i) a natural person; (ii) a partnership
all of whose members are natural persons and that is not a limited part-
nership; or (iii) a corporation none of whose stock is owned by another
corporation.
3. The commissioner, after receiving from the superintendent of insur-
ance the evaluations and approvals required pursuant to subdivision
seven of this section, may issue a certificate of authority to an appli-
cant which satisfies the conditions under this section for issuance
established by the commissioner and which seeks to deliver comprehensive
health services, on a capitated basis, including inpatient services, to:
(a) persons who are receiving benefits under title XVIII of the feder-
al social security act; or
(b) persons who are receiving benefits under title XIX of the federal
social security act and commercial enrollees; or
(c) an enrollee population which includes persons receiving benefits
under titles XVIII and XIX of the federal social security act and
commercial enrollees.
4. An applicant must demonstrate to the commissioner that it will
provide at least seventy-five percent of the total expenditures for
covered health care items and services directly to its enrollees through
the provider, affiliated providers or affiliated groups of providers
comprising such applicant. The applicant shall make arrangements or
referrals for any covered health care items and services not provided
directly to its enrollees by such applicant.
5. A provider shall be deemed affiliated with another provider or
group of providers if, through contract, ownership or otherwise:
(a) one provider, directly or indirectly, owns, controls, or holds the
power to vote, or proxies for, not less than fifty-one percent of the
voting rights or governance rights of another;
(b) each provider is a participant in a lawful combination under which
each provider shares, either directly or indirectly, substantial finan-
cial risk in connection with the activities and services of such combi-
nation; or
(c) a provider is a corporate member of a provider organized as a
not-for-profit corporation duly designated pursuant to section six
hundred one of the not-for-profit corporation law.
6. The commissioner shall be responsible for evaluating, approving and
regulating all matters relating to delivery systems, quality of care and
access to care to be provided through the integrated delivery system. In
performing this responsibility, the commissioner shall assure:
(a) that the formation and operation of the integrated delivery system
will enhance access to health services in the area to be served; and
(b) subject to subdivision four of this section, the comprehensive
health services will be provided by the applicant through its proposed
delivery system (including through providers other than those composing,
affiliated with or controlling the applicant).
7. (a) The superintendent of insurance, in consultation with the
commissioner in accordance with a protocol to be specified in a memoran-
dum of understanding between the commissioner and the superintendent of
insurance regarding fiscal solvency, shall be responsible for evaluat-
ing, approving and regulating all matters relating to premium rates,
subscriber contracts and fiscal solvency, including reserves, surplus
and provider contracts to the extent such contracts relate to fiscal
solvency matters. The superintendent of insurance, in the administration
of this subdivision, shall:
(i) be guided by the standards which govern the fiscal solvency of a
health maintenance organization, provided, however, that the superinten-
dent of insurance shall recognize and consider the specific delivery
components, operational capacity and financial capability of the appli-
cant for a certificate of authority; and
(ii) not apply financial solvency standards that exceed those required
for a health maintenance organization.
(b) Standards established pursuant to this subdivision shall be
adequate to protect the interests of the subscribers to integrated
delivery systems. The superintendent of insurance must be satisfied that
the applicant is fiscally sound, and has made adequate provisions to pay
for services:
(i) that are furnished by providers that are not affiliated with the
applicant;
(ii) to meet the specialized health care needs of certain enrollees
needing care at specialty care centers; and
(iii) for which claims are submitted after the period for which the
applicant will receive payments.
8. The integrated delivery system shall have its premiums determined
on a community-rated basis in accordance with the insurance law except
where the enrollees are eligible to receive services under title XIX of
the federal social security act in which case the premium rates shall be
established by the commissioner, in consultation with the superintendent
of insurance, subject to the approval of the director of the division of
the budget.
9. An integrated delivery system shall be subject to the provisions of
the insurance law that are applicable to health maintenance organiza-
tions, this chapter and regulations applicable to health maintenance
organization, and any regulations promulgated by the commissioner or
superintendent of insurance to implement this section. To the extent
that the provisions of this section are inconsistent with the provisions
of this chapter or the provisions of the insurance law, the provisions
of this section shall prevail.
10. No certificate of authority for an integrated delivery system
shall be issued pursuant to this section on or after April first, two
thousand two and integrated delivery systems issued certificates before
such date shall accept no new enrollees thereafter.
S 4408-a . Grievance procedure. 1. A health maintenance organization
licensed pursuant to article forty-three of the insurance law or
certified pursuant to this article, and any other organization
certified pursuant to this article shall establish and maintain a
grievance procedure. Pursuant to such procedure, enrollees shall be
entitled to seek a review of determinations by the organization other
than determinations subject to the provisions of article forty-nine of
this chapter.
2. (a) An organization shall provide to all enrollees written notice
of the grievance procedure in the member handbook and at any time that
the organization denies access to a referral or determines that a
requested benefit is not covered pursuant to the terms of the
contract; provided, however, that nothing herein shall be deemed to
require a health care provider to provide such notice. In the event
that an organization denies a service as an adverse determination as
defined in article forty-nine of this chapter, the organization shall
inform the enrollee or the enrollee`s designee of the appeal rights
provided for in article forty-nine of this chapter.
(b) The notice to an enrollee describing the grievance process shall
explain: (i) the process for filing a grievance with the organization;
(ii) the timeframes within which a grievance determination must be
made; and (iii) the right of an enrollee to designate a representative
to file a grievance on behalf of the enrollee.
(c) The organization shall assure that the grievance procedure is
reasonably accessible to those who do not speak English.
3. (a) The organization may require an enrollee to file a grievance
in writing, by letter or by a grievance form which shall be made
available by the organization and which shall conform to applicable
standards for readability.
(b) Notwithstanding the provisions of paragraph (a) of this
subdivision, an enrollee may submit an oral grievance in connection
with: (i) a denial of, or failure to pay for, a referral; or (ii) a
determination as to whether a benefit is covered pursuant to the terms
of the enrollee`s contract. In connection with the submission of an
oral grievance, an organization may require that the enrollee sign a
written acknowledgment of the grievance prepared by the organization
summarizing the nature of the grievance. Such acknowledgment shall be
mailed promptly to the enrollee, who shall sign and return the
acknowledgment, with any amendments, in order to initiate the
grievance. The grievance acknowledgment shall prominently state that
the enrollee must sign and return the acknowledgment to initiate the
grievance. If an organization does not require such a signed
acknowledgment, an oral grievance shall be initiated at the time of
the telephone call.
(c) Upon receipt of a grievance, the organization shall provide
notice specifying what information must be provided to the
organization in order to render a decision on the grievance.
(d) (1) An organization shall designate personnel to accept the
filing of an enrollee`s grievance by toll-free telephone no less than
forty hours per week during normal business hours and, shall have a
telephone system available to take calls during other than normal
business hours and shall respond to all such calls no less than the
next business day after the call was recorded.
(2) Notwithstanding the provisions of subparagraph one of this
paragraph, an organization may, in the alternative, designate
personnel to accept the filing of an enrollee`s grievance by toll-free
telephone not less than forty hours per week during normal business
hours and, in the case of grievances subject to subparagraph (i) of
subdivision four of this section, on a twenty-four hour a day, seven
day a week basis.
4. Within fifteen business days of receipt of the grievance, the
organization shall provide written acknowledgment of the grievance,
including the name, address and telephone number of the individual or
department designated by the organization to respond to the grievance.
All grievances shall be resolved in an expeditious manner, and in any
event, no more than: (i) forty-eight hours after the receipt of all
necessary information when a delay would significantly increase the
risk to an enrollee`s health; (ii) thirty days after the receipt of
all necessary information in the case of requests for referrals or
determinations concerning whether a requested benefit is covered
pursuant to the contract; and (iii) forty-five days after the receipt
of all necessary information in all other instances.
5. The organization shall designate one or more qualified personnel
to review the grievance; provided further, that when the grievance
pertains to clinical matters, the personnel shall include, but not be
limited to, one or more licensed, certified or registered health care
professionals.
6. The notice of a determination of the grievance shall be made in
writing to the enrollee or to the enrollee`s designee. In the case of
a determination made in conformance with subparagraph (i) of
subdivision four of this section, notice shall be made by telephone
directly to the enrollee with written notice to follow within three
business days.
7. The notice of a determination shall include: (i) the detailed
reasons for the determination; (ii) in cases where the determination
has a clinical basis, the clinical rationale for the determination;
and (iii) the procedures for the filing of an appeal of the
determination, including a form for the filing of such an appeal.
8. An enrollee or an enrollee`s designee shall have not less than
sixty business days after receipt of notice of the grievance
determination to file a written appeal, which may be submitted by
letter or by a form supplied by the organization.
9. Within fifteen business days of receipt of the appeal, the
organization shall provide written acknowledgment of the appeal,
including the name, address and telephone number of the individual
designated by the organization to respond to the appeal and what
additional information, if any, must be provided in order for the
organization to render a decision.
10. The determination of an appeal on a clinical matter must be made
by personnel qualified to review the appeal, including licensed,
certified or registered health care professionals who did not make the
initial determination, at least one of whom must be a clinical peer
reviewer as defined in article forty-nine of this chapter. The
determination of an appeal on a matter which is not clinical shall be
made by qualified personnel at a higher level than the personnel who
made the grievance determination.
11. The organization shall seek to resolve all appeals in the most
expeditious manner and shall make a determination and provide notice
no more than:
(i) two business days after the receipt of all necessary information
when a delay would significantly increase the risk to an enrollee`s
health; and
(ii) thirty business days after the receipt of all necessary
information in all other instances.
12. The notice of a determination on an appeal shall include: (i)
the detailed reasons for the determination; and (ii) in cases where
the determination has a clinical basis, the clinical rationale for the
determination.
13. An organization shall not retaliate or take any discriminatory
action against an enrollee because an enrollee has filed a grievance
or appeal.
14. An organization shall maintain a file on each grievance and
associated appeal, if any, that shall include the date the grievance
was filed; a copy of the grievance, if any; the date of receipt of and
a copy of the enrollee`s acknowledgment of the grievance, if any; the
determination made by the organization including the date of the
determination and the titles and, in the case of a clinical
determination, the credentials of the organization`s personnel who
reviewed the grievance. If an enrollee files an appeal of the
grievance, the file shall include the date and a copy of the
enrollee`s appeal, the determination made by the organization
including the date of the determination and the titles and, in the
case of clinical determinations, the credentials, of the
organization`s personnel who reviewed the appeal.
15. The rights and remedies conferred in this article upon enrollees
shall be cumulative and in addition to and not in lieu of any other
rights or remedies available under law.
Sec. 4409. Health maintenance organizations; examinations. 1. In
order to carry out the provisions of this article, the commissioner,
pursuant to his authority under section two hundred six of this chapter,
shall examine not less than once every three years, each health
maintenance organization and all participating entities through which
such health maintenance organization offers health services as to the
quality of health care services offered, and the adequacy of its
provider arrangements.
2. The superintendent shall examine not less than once every three
years into the financial affairs of each health maintenance
organization, and transmit his findings to the commissioner. In
connection with any such examination, the superintendent shall have
convenient access at all reasonable hours to all books, records, files
and other documents relating to the affairs of such organization, which
are relevant to the examination. The superintendent may exercise the
powers set forth in sections three hundred four, three hundred five,
three hundred six and three hundred ten of the insurance law in
connection with such examinations, and may also require special reports
from such health maintenance organizations as specified in section three
hundred eight of the insurance law.
3. The superintendent and the commissioner are authorized to share
and exchange information obtained by them in the exercise of their
respective responsibilities under the insurance law and this chapter.
4. Nothing contained in this section shall be deemed to require the
public disclosure of privileged patient information.
S 4410. Health maintenance organizations; professional services. 1.
The provision of comprehensive health services directly or indirectly,
by a health maintenance organization through its comprehensive health
services plan shall not be considered the practice of the profession
of medicine by such organization or plan. However, each member,
employee or agent of such organization or plan shall be fully and
personally liable and accountable for any negligent or wrongful act or
misconduct committed by him or any person under his direct supervision
and control while rendering professional services on behalf of such
organization or plan.
2. Unless the patient waives the right of confidentiality, a health
maintenance organization or its comprehensive health services plan
shall not be allowed to disclose any information which was acquired by
such organization or plan in the course of the rendering to a patient
of professional services by a person authorized to practice medicine,
registered professional nursing, licensed practical nursing, or
dentistry, and which was necessary to acquire to enable such person to
act in that capacity, except as may be otherwise required by law. A
non-participating provider shall provide an enrollee`s organization
with such patient information as is reasonably required by the
organization to administer its plan. In making such disclosure a
provider shall comply with the provisions of subdivision six of
section eighteen of this chapter concerning the disclosure of patient
information to third parties provided, however, that with respect to a
protected individual as defined in subdivision six of section
twenty-seven hundred eighty of this chapter, disclosure shall be made
only pursuant to an enrollee`s written authorization and shall
otherwise be consistent with the requirements of such section and
rules and regulations promulgated pursuant thereto.
3. Notwithstanding the provisions of this section, the provisions of
section four hundred twenty-two of the social services law shall apply
to any information or reports submitted by a health maintenance
organization to the statewide central register of child abuse and
maltreatment reports.
4. (a) The commissioner shall have access to patient-specific
medical information, including encounter data, maintained by a health
maintenance organization or other organization certified pursuant to
this article for the purposes of quality assurance and oversight,
subject to any other limitations of federal and state law regarding
disclosure thereof to third parties and subject to the provisions of
this subdivision. The provisions of sections thirty-one hundred one,
and forty-five hundred four, forty-five hundred seven and forty-five
hundred eight of the civil practice law and rules, subdivision three
of this section and section 33.13 of the mental hygiene law, shall not
bar disclosure by the health maintenance organization to the
commissioner for such purposes.
(b) The commissioner may only obtain enrollee information subject to
the establishment of protocols that will ensure that such
patient-specific information is not disclosed to third parties other
than to entities serving as agents of the state for the purposes of
quality assurance and oversight. Such protocols shall be developed in
consultation with representatives of health maintenance organizations,
health care provider organizations and consumer organizations and
shall, where possible, include the development of a unique
confidential identifier to be used in connection with patient-specific
data. These protocols shall address issues relating to the collection,
maintenance, and disclosure of such patient-specific information. Such
protocols shall be promulgated as regulations, provided however, that
protocols or regulations in use prior to the effective date of this
subdivision shall remain in effect until the regulations developed
hereunder are promulgated.
(c) In addition to any other sanction or penalty as provided by law,
any employee of the department who willfully violates this regulation
or any other rule or procedure pertaining to the disclosure of any
material collected pursuant to this subdivision shall be deemed to
have committed an act of misconduct and shall be disciplined in
accordance with the provisions of the civil service law.
Sec. 4411. Construction. The provisions of laws other than
this article shall not be applicable to the certification of any
health maintenance organization under this article except where
so specified; provided, however, that no health maintenance
organization shall include in its name the words "insurer",
"casualty", "health and accident" or any words generally regarded
as descriptive of the insurance function; provided further, that
this provision shall not be construed as prohibiting the
participation in a comprehensive health services plan of any
corporation or other entity organized under any other law, to the
extent that such corporations or entities are authorized to
participate by law, including but not limited to the insurance
law, business corporation law, education law, not-for-profit
corporation law, or general municipal law; nor shall this section
be considered to prevent the application of any other law to the
entities comprising such plan.
Sec. 4412. Separability. If any clause, sentence,
paragraph, subdivision, section or part of this article shall be
adjudged by any court of competent jurisdiction to be invalid,
the judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the
clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which the judgment shall
have been rendered.
Sec. 4413. Savings clause. Nothing contained in this article or any
act amendatory thereof shall affect or impair the validity of any act
done or right accruing, accrued or acquired or any order, judgment, or
status established prior to the enactment of this article or prior to
the amendment of any act amendatory thereof.
Medical corporations organized pursuant to the provisions of former
article forty-four of the public health law in effect prior to the
effectiveness of the provisions of this article may continue to operate
pursuant to the provisions of law in effect prior to the effectiveness
hereof.
Health maintenance organizations that applied for a license under
article forty-three of the insurance law and receive approval under
article twenty-eight of the public health law may continue under the
provisions of the laws in existence on the effective date of this
article.
S 4414. Health care compliance programs. The commissioner of health,
after consultation with the superintendent of insurance, shall by regu-
lation establish standards and criteria for compliance programs to be
implemented by persons providing coverage or coverage and service pursu-
ant to any public or governmentally-sponsored or supported plan for
health care coverage or services. Such regulations shall include
provisions for the design and implementation of programs or processes to
prevent, detect and address instances of fraud and abuse. Such regu-
lations shall take into account the nature of the entity`s business and
the size of its enrolled population. The commissioner of health and the
superintendent of insurance shall accept programs and processes imple-
mented pursuant to section four hundred nine of the insurance law as
satisfying the obligations of this section and the regulations promul-
gated thereunder when such programs and processes incorporate the objec-
tives contemplated by this section.
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