§ 4318 — Pre-existing condition provisions

§ 4318. Pre-existing condition provisions. Every individual health\ninsurance contract and every group or blanket accident and health\ninsurance contract issued or issued for delivery in this state which\nincludes a pre-existing condition provision shall contain in substance\nthe following provision or provisions which in the opinion of the\nsuperintendent are more favorable to individuals, members of the group\nand their eligible dependents:\n (a) In determining whether a pre-existing condition provision applies\nto a covered person, the contract shall credit the time the covered\nperson was previously covered under creditable coverage, if the previous\ncreditable coverage was continuous to a date not more than sixty-three\ndays prior to the enrollment date of the new coverage. In the case of\nprevious health maintenance organization coverage, any affiliation\nperiod prior to that previous coverage becoming effective shall also be\ncredited pursuant to this subsection.\n (b) No pre-existing condition provision shall exclude coverage for a\nperiod in excess of twelve months following the enrollment date for the\ncovered person and may only relate to a condition (whether physical or\nmental), regardless of the cause of the condition for which medical\nadvice, diagnosis, care or treatment was recommended or received within\nthe six month period ending on the enrollment date. For purposes of this\nsection "enrollment date" means the first day of coverage of the\nindividual under the contract or, if earlier, the first day of the\nwaiting period that must pass with respect to an individual before the\nindividual is eligible to be covered for benefits. If an individual\nseeks and obtains coverage in the individual market, any period after\nthe date the individual files a substantially complete application for\ncoverage and before the first day of coverage is a waiting period. For\npurposes of this section, genetic information shall not be treated as a\npre-existing condition in the absence of a diagnosis of the condition\nrelated to such information. No pre-existing condition provision shall\nexclude coverage in the case of:\n (1) an individual who, as of the last day of the thirty-day period\nbeginning with the date of birth, is covered under creditable coverage\nas defined in subsection (c) of this section;\n (2) a child who is adopted or placed for adoption before attaining\neighteen years of age and who, as of the last day of the thirty-day\nperiod beginning on the date of the adoption or placement for adoption,\nis covered under creditable coverage as defined in subsection (c) of\nthis section;\n (3) pregnancy (except in an individual direct payment contract or a\nstudent blanket accident and health insurance contract in which a\ncorporation may exclude coverage, subject to a credit for previous\ncreditable coverage, for a period not to exceed ten months for a\npregnancy existing on the enrollment date); or\n (4) an individual, and any dependent of such individual, who is\neligible for a federal tax credit under the federal Trade Adjustment\nAssistance Reform Act of 2002 and who has three months or more of\ncreditable coverage.\n Paragraphs one and two of this subsection shall no longer apply to an\nindividual after the end of the first sixty-three day period during all\nof which the individual was not covered under any creditable coverage.\n (c) For purposes of this section, "creditable coverage" means, with\nrespect to an individual, coverage of the individual under any of the\nfollowing:\n (1) A group health plan;\n (2) Health insurance coverage;\n (3) Part A or B of title XVIII of the Social Security Act;\n (4) Title XIX of the Social Security Act, other than coverage\nconsisting solely of benefits under section 1928;\n (5) Chapter 55 of title 10, United States Code;\n (6) A medical care program of the Indian Health Service or of a tribal\norganization;\n (7) A state health benefits risk pool;\n (8) A health plan offered under chapter 89 of title 5, United States\nCode;\n (9) A public health plan (as defined in regulations);\n (10) A health benefit plan under section 5(e) of the Peace Corps Act\n(22 U.S.C. 2504(e)).\n (d)(1) For purposes of applying the credit of such creditable\ncoverage, a corporation shall count a period of creditable coverage\nwithout regard to the specific benefits covered during the period.\n (2) Alternatively, a corporation may elect to count the period of\ncoverage based on coverage of benefits within each of several classes or\ncategories of benefits as specified in regulations. Such election shall\nbe made on a uniform basis for all subscribers, participants and\nbeneficiaries. Pursuant to such election a corporation shall count a\nperiod of creditable coverage with respect to any class or category of\nbenefits if any level of benefits is covered within such class or\ncategory. A corporation making such election shall prominently state in\nany disclosure statement, and shall set forth in any contract or\ncertificate issued in connection with the coverage, that the corporation\nhas made such election. Such disclosure statement shall include a\ndescription of the effect of the election with regard to the application\nof creditable coverage.\n (3) Notwithstanding the foregoing paragraph, for purposes of\ndetermining the extent to which a pre-existing condition limitation has\nbeen satisfied in a contract issued pursuant to section four thousand\nthree hundred twenty-one or four thousand three hundred twenty-two of\nthis article within thirty days of discontinuance of a class of health\nmaintenance organization direct payment contract for enrollees whose\ncontract was discontinued, a corporation shall credit the coverage of an\nenrollee under a health maintenance organization direct payment contract\nissued prior to January first, nineteen hundred ninety-six, without\nregard to the specific benefits covered under the health maintenance\norganization contract.\n (4) With respect to an "eligible individual", as defined in section\n2741(b) of the federal Public Health Service Act, 42 U.S.C. §\n300gg-41(b), a corporation may not impose any pre-existing condition\nexclusion in an individual health insurance contract. For all other\ncovered persons, the pre-existing condition crediting requirement of\nsubsection (a) of this section shall be applicable.\n (e) For the purposes of this section the term "group health plan"\nmeans an employee welfare benefit plan (as defined in section 3(1) of\nthe Employee Retirement Income Security Act of 1974) to the extent that\nthe plan provides medical care (including items and services paid for as\nmedical care) to employees or their dependents (as defined under the\nterms of the plan) directly or through insurance, reimbursement or\notherwise.\n (f) A corporation shall not impose any pre-existing condition\nexclusion in an individual or group contract of hospital, medical,\nsurgical or prescription drug expense insurance.\n