§ 4322 — Standardization of individual enrollee direct payment contracts offered by health maintenance organizations which provide out-of-plan ben...

§ 4322. Standardization of individual enrollee direct payment\ncontracts offered by health maintenance organizations which provide\nout-of-plan benefits prior to October first, two thousand thirteen. (a)\nOn and after January first, nineteen hundred ninety-six, and until\nSeptember thirtieth, two thousand thirteen, all health maintenance\norganizations issued a certificate of authority under article forty-four\nof the public health law or licensed under this article shall offer to\nindividuals, in addition to the standardized contract required by\nsection four thousand three hundred twenty-one of this article, a\nstandardized individual enrollee direct payment contract on an open\nenrollment basis as prescribed by section four thousand three hundred\nseventeen of this article and section four thousand four hundred six of\nthe public health law, and regulations promulgated thereunder, with an\nout-of-plan benefit system, provided, however, that such requirements\nshall not apply to a health maintenance organization exclusively serving\nindividuals enrolled pursuant to title eleven of article five of the\nsocial services law, title eleven-D of article five of the social\nservices law, title one-A of article twenty-five of the public health\nlaw or title eighteen of the federal Social Security Act. The\nout-of-plan benefit system shall either be provided by the health\nmaintenance organization pursuant to subdivision two of section four\nthousand four hundred six of the public health law or through an\naccompanying insurance contract providing out-of-plan benefits offered\nby a company appropriately licensed pursuant to this chapter. On and\nafter January first, nineteen hundred ninety-six, and until September\nthirtieth, two thousand thirteen, the contracts issued pursuant to this\nsection and section four thousand three hundred twenty-one of this\narticle shall be the only contracts offered by health maintenance\norganizations to individuals. The enrollee contracts issued by a health\nmaintenance organization under this section and section four thousand\nthree hundred twenty-one of this article shall also be the only\ncontracts issued by the health maintenance organization for purposes of\nconversion pursuant to sections four thousand three hundred four and\nfour thousand three hundred five of this article. However, nothing in\nthis section shall be deemed to require health maintenance organizations\nto terminate individual direct payment contracts issued prior to January\nfirst, nineteen hundred ninety-six or prohibit health maintenance\norganizations from terminating individual direct payment contracts\nissued prior to January first, nineteen hundred ninety-six.\n (i) On and after January first, two thousand fourteen, each contract\nthat is not a grandfathered health plan shall provide coverage for the\nessential health benefit package. For purposes of this subsection:\n (1) "essential health benefits package" shall have the meaning set\nforth in section 1302(a) of the affordable care act, 42 U.S.C. §\n18022(a); and\n (2) "grandfathered health plan" means coverage provided by a\ncorporation in which an individual was enrolled on March twenty-third,\ntwo thousand ten for as long as the coverage maintains grandfathered\nstatus in accordance with section 1251(e) of the affordable care act, 42\nU.S.C. § 18011(e).\n (b) The in-plan and out-of-plan covered benefits for the standardized\nindividual enrollee direct payment contract shall include coverage for\nall health services which an enrolled population in a health maintenance\norganization might require in order to be maintained in good health,\nrendered without limitation as to time and cost, except to the extent\npermitted by this chapter.\n The in-plan and out-of-plan covered services include the following:\n (1) Inpatient hospital services, including:\n (A) daily room and board;\n (B) general nursing care;\n (C) special diets; and\n (D) miscellaneous hospital services.\n (2) Outpatient hospital services including:\n (A) diagnostic and treatment services;\n (B) x-rays; and\n (C) laboratory tests.\n (3) Physician services including:\n (A) consultant and referral services;\n (B) primary and preventive care services;\n (C) in-hospital medical services;\n (D) surgical services;\n (E) anesthetic services; and\n (F) second surgical opinion.\n (4) Preventive health services including:\n (A) periodic physical examinations, including eye and ear examinations\nto determine the need for vision and hearing correction;\n (B) well child care from birth;\n (C) pediatric and adult immunizations;\n (D) mammography screening, as provided in subsection (p) of section\nfour thousand three hundred three of this article;\n (E) cervical cytology screening as provided in subsection (t) of\nsection four thousand three hundred three of this article; and\n (F) for a contract that is not a grandfathered health plan, the\nfollowing additional preventive health services:\n (i) evidence-based items or services that have in effect a rating of\n'A' or 'B' in the current recommendations of the United States\npreventive services task force;\n (ii) immunizations that have in effect a recommendation from the\nadvisory committee on immunization practices of the centers for disease\ncontrol and prevention with respect to the individual involved;\n (iii) with respect to children, including infants and adolescents,\nevidence-informed preventive care and screenings provided for in the\ncomprehensive guidelines supported by the health resources and services\nadministration; and\n (iv) with respect to women, such additional preventive care and\nscreenings not described in item (i) of this subparagraph and as\nprovided for in comprehensive guidelines supported by the health\nresources and services administration.\n (v) For purposes of this subparagraph, "grandfathered health plan"\nmeans coverage provided by a corporation in which an individual was\nenrolled on March twenty-third, two thousand ten for as long as the\ncoverage maintains grandfathered status in accordance with section\n1251(e) of the Affordable Care Act, 42 U.S.C. § 18011(e).\n (5) Emergency services.\n (6) Diagnostic laboratory services.\n (7) Therapeutic and diagnostic radiologic services.\n (8) Preadmission testing.\n (9) Home health services up to two hundred visits per member per\ncalendar year.\n (10) Maternity care.\n (11) Chemotherapy services.\n (12) Hemodialysis services consistent with the provisions of\nsubsection (gg) of section four thousand three hundred three of this\narticle.\n (13) Outpatient physical therapy up to ninety visits per condition per\ncalendar year.\n (14) Hospice care up to two hundred ten days.\n (15) Skilled nursing facility care when preceded by a hospital stay of\nat least three days and further hospitalization would otherwise be\nnecessary.\n (16) Equipment, supplies and self-management education for the\ntreatment of diabetes.\n (17) Inpatient diagnosis and treatment of mental, nervous or emotional\ndisorders or ailments up to thirty days per calendar year combined with\ninpatient treatment of alcoholism and substance abuse.\n (18) Inpatient diagnosis and treatment of alcoholism and alcohol abuse\nand substance abuse and substance dependence up to thirty days per\ncalendar year for detoxification combined with inpatient treatment of\nmental, nervous or emotional disorders or ailments.\n (19) Outpatient diagnosis and treatment of mental, nervous or\nemotional disorders or ailments up to thirty non-emergency and three\nemergency visits per calendar year.\n (20) Ambulance services.\n (21) Private duty nursing up to five thousand dollars per individual\nper calendar year up to a ten thousand dollar individual lifetime\nmaximum.\n (22) Prosthetics, orthotics, durable medical equipment and medical\nsupplies.\n (23) Inpatient physical rehabilitation services.\n (24) Blood and blood products.\n (25) Prescription drugs, including contraceptive drugs or devices\napproved by the federal food and drug administration or generic\nequivalents approved as substitutes by such food and drug administration\nand nutritional supplements (formulas), whether administered orally or\nvia a feeding tube for the therapeutic treatment of phenylketonuria,\nbranched-chain ketonuria, galactosemia and homocystinuria, obtained at a\nparticipating pharmacy under a prescription written by an in-plan or\nout-of-plan provider. Health maintenance organizations, in addition to\nproviding coverage for prescription drugs at a participating pharmacy,\nmay utilize a mail order prescription drug program. Health maintenance\norganizations may provide prescription drugs pursuant to a drug\nformulary; however, health maintenance organizations must implement an\nappeals process so that the use of non-formulary prescription drugs may\nbe requested by a physician or other provider.\n Health maintenance organizations shall impose a one hundred dollar\nindividual deductible and a three hundred dollar family deductible per\ncalendar year for prescription drugs obtained at a participating\npharmacy. Health maintenance organizations may not impose a deductible\non prescriptions obtained through the mail order drug program.\n In addition to the deductible, a ten dollar copayment shall be imposed\non up to a thirty-four day supply of brand name prescription drugs\nobtained at a participating pharmacy. A five dollar copayment shall be\nimposed on up to a thirty-four day supply of generic prescription drugs\nor brand name drugs for which there is no generic equivalent obtained at\na participating pharmacy.\n If a mail order drug program is utilized, a twenty dollar copayment\nshall be imposed on a ninety day supply of brand name prescription\ndrugs. A ten dollar copayment shall be imposed on a ninety day supply of\ngeneric prescription drugs or brand name drugs for which there is no\ngeneric equivalent obtained through the mail order drug program.\n In no event shall the copayment exceed the cost of the prescribed\ndrug.\n (26) Bone mineral density measurements or tests and, if such contract\notherwise includes coverage for prescription drugs, drugs and devices\napproved by the federal food and drug administration or generic\nequivalents as approved substitutes.\n In determining appropriate coverage provided by subparagraphs (A), (B)\nand (C) of this paragraph, the insurer or health maintenance\norganization shall adopt standards that include the criteria of the\nfederal Medicare program and the criteria of the national institutes of\nhealth for the detection of osteoporosis, provided that such coverage\nshall be further determined as follows:\n (A) For purposes of subparagraphs (B) and (C) of this paragraph, bone\nmineral density measurements or tests, drugs and devices shall include\nthose covered under the criteria of the federal Medicare program as well\nas those in accordance with the criteria, of the national institutes of\nhealth, including, as consistent with such criteria dual-energy x-ray\nabsorptiometry.\n (B) For purposes of subparagraphs (A) and (C) of this paragraph, bone\nmineral density measurements or tests, drugs and devices shall be\ncovered for individuals meeting the criteria for coverage consistent\nwith the criteria under the federal Medicare program or the criteria of\nthe national institutes of health; provided that, to the extent\nconsistent with such criteria, individuals qualifying for coverage shall\nat a minimum, include individuals:\n (i) previously diagnosed as having osteoporosis or having a family\nhistory of osteoporosis; or\n (ii) with symptoms or conditions indicative of the presence, or the\nsignificant risk, of osteoporosis; or\n (iii) on a prescribed drug regimen posing a significant risk of\nosteoporosis; or\n (iv) with lifestyle factors to such a degree as posing a significant\nrisk of osteoporosis; or\n (v) with such age, gender and/or other physiological characteristics\nwhich pose a significant risk for osteoporosis.\n (C) Such coverage required pursuant to subparagraph (A) or (B) of this\nparagraph may be subject to annual deductibles and coinsurance as may be\ndeemed appropriate by the superintendent and as are consistent with\nthose established for other benefits within a given policy.\n (D) In addition to subparagraph (A), (B) or (C) of this paragraph,\nexcept for a grandfathered health plan under subparagraph (E) of this\nparagraph, coverage shall be provided for the following items or\nservices for bone mineral density, and such coverage shall not be\nsubject to annual deductibles or coinsurance:\n (i) evidence-based items or services for bone mineral density that\nhave in effect a rating of 'A' or 'B' in the current recommendations of\nthe United States preventive services task force; and\n (ii) with respect to women, such additional preventive care and\nscreenings for bone mineral density not described in item (i) of this\nsubparagraph and as provided for in comprehensive guidelines supported\nby the health resources and services administration.\n (E) For purposes of this paragraph, "grandfathered health plan" means\ncoverage provided by a corporation in which an individual was enrolled\non March twenty-third, two thousand ten for as long as the coverage\nmaintains grandfathered status in accordance with section 1251(e) of the\nAffordable Care Act, 42 U.S.C. § 18011(e).\n (27) Services covered under such policy when provided by a\ncomprehensive care center for eating disorders pursuant to article\nthirty of the mental hygiene law; provided, however, that reimbursement\nunder such policy for services provided through such comprehensive care\ncenters shall, to the extent possible and practicable, be structured in\na manner to facilitate the individualized, comprehensive and integrated\nplans of care which such centers' network of practitioners and providers\nare required to provide.\n (b-1) The in-plan and out-of-plan covered benefits for the\nstandardized individual enrollee direct payment contracts established by\nthis section and section four thousand three hundred twenty-one of this\narticle shall not include drugs, procedures and supplies for the\ntreatment of erectile dysfunction when provided to, or prescribed for\nuse by, a person who is required to register as a sex offender pursuant\nto article six-C of the correction law, provided that: (1) any denial of\ncoverage pursuant to this subsection shall provide the enrollee with the\nmeans of obtaining additional information concerning both the denial and\nthe means of challenging such denial; (2) all drugs, procedures and\nsupplies for the treatment of erectile dysfunction may be subject to\nprior authorization by health maintenance organizations or insurers for\nthe purposes of implementing this subsection; and (3) the superintendent\nshall promulgate regulations to implement the denial of coverage\npursuant to this subsection giving health maintenance organizations and\ninsurers at least sixty days following promulgation of the regulations\nto implement their denial procedures pursuant to this subsection.\n (b-2) No person or entity authorized to provide coverage under this\nsection shall be subject to any civil or criminal liability for damages\nfor any decision or action pursuant to subsection (b-1) of this section,\nmade in the ordinary course of business if that authorized person or\nentity acted reasonably and in good faith with respect to such\ninformation.\n (b-3) Notwithstanding any other provision of law, if the commissioner\nof health makes a finding pursuant to subdivision twenty-three of\nsection two hundred six of the public health law, the superintendent is\nauthorized to remove a drug, procedure or supply from the services\ncovered by the contracts established by this section and section four\nthousand three hundred twenty-one of this article for those persons\nrequired to register as sex offenders pursuant to article six-C of the\ncorrection law.\n (c) The in-plan benefit system shall impose a ten dollar copayment on\nall visits to a physician or other provider with the exception of visits\nfor pre-natal and post-natal care, well child visits provided pursuant\nto paragraph two of subsection (j) of section four thousand three\nhundred three of this article, preventive health services provided\npursuant to subparagraph (F) of paragraph four of subsection (b) of this\nsection or items or services for bone mineral density provided pursuant\nto subparagraph (D) of paragraph twenty-six of subsection (b) of this\nsection for which no copayment shall apply. A copayment of ten dollars\nshall be imposed on equipment, supplies and self-management education\nfor the treatment of diabetes. Coinsurance of ten percent shall apply to\nvisits for the diagnosis and treatment of mental, nervous or emotional\ndisorders or ailments. A thirty-five dollar copayment shall be imposed\non emergency services rendered in the emergency room of a hospital;\nhowever, this copayment must be waived if hospital admission results.\n (d) The out-of-plan benefit system shall have an annual deductible\nestablished at one thousand dollars per calendar year for an individual\nand two thousand dollars per year for a family. Coinsurance shall be\nestablished at twenty percent with the health maintenance organization\nor insurer paying eighty percent of the usual, customary and reasonable\ncharges, or eighty percent of the amounts listed on a fee schedule filed\nwith and approved by the superintendent which provides a comparable\nlevel of reimbursement. Coinsurance of ten percent shall apply to\noutpatient visits for the diagnosis and treatment of mental, nervous or\nemotional disorders or ailments. The benefits described in subparagraph\n(F) of paragraph three and paragraphs seventeen and eighteen of\nsubsection (b) of this section shall not be subject to the deductible or\ncoinsurance. The benefits described in paragraph nine of subsection (b)\nof this section shall not be subject to the deductible. The out-of-plan\nout-of-pocket maximum deductible and coinsurance shall be established at\nthree thousand dollars per calendar year for an individual and five\nthousand dollars per calendar year for a family. The out-of-plan\nlifetime benefit maximum shall be established at five hundred thousand\ndollars for benefits that are not essential health benefits. A lifetime\nlimit on the dollar amount of essential health benefits for any\nindividual shall not be established. For purposes of this subsection,\n"essential health benefits" shall have the meaning ascribed by section\n1302(b) of the Affordable Care Act, 42 U.S.C. § 18022(b).\n (e) The provisions of each contract describing administrative\nprocedures and other provisions not affecting the scope of, or\nconditions for obtaining, covered benefits, such as, but not limited to,\neligibility and termination provisions, may be of the type generally\nissued by the health maintenance organization and/or insurer, as long as\nthe superintendent determines that the terms and description of those\nadministrative and other provisions are unlikely to affect consumers'\ndeterminations of which health maintenance organization's contract to\npurchase and are not contrary to law. Each contract may also include\nlimitations and conditions on coverage of benefits described in this\nsection provided the superintendent determines the limitations and\nconditions on coverage were commonly included in the health maintenance\norganization and/or health insurance products covering individuals on a\ndirect payment basis prior to January first, nineteen hundred ninety-six\nand are not contrary to law.\n (f) A health maintenance organization may offer the required\nout-of-plan benefits by means of a rider to a contract offering in-plan\nbenefits only.\n (g) Day and visit limitations on benefits included in this section are\naggregate limitations regardless of whether services are received\nin-plan or out-of-plan. The five thousand dollar per individual per\ncalendar year limitation and ten thousand dollar lifetime limitation on\nprivate duty nursing is also an aggregate limitation for in-plan and\nout-of-plan benefits combined.\n (h) The superintendent shall be authorized to modify, by regulation,\nthe copayments, deductibles and coinsurance amounts described in this\nsection, if the superintendent determines such amendments are necessary\nto moderate potential premiums. On or after January first, nineteen\nhundred ninety-eight, the superintendent shall be authorized to\nestablish one or more additional standardized individual enrollee direct\npayment contracts if the superintendent determines, after one or more\npublic hearings, additional contracts with different levels of benefits\nare necessary to meet the needs of the public.\n (i) On and after January first, two thousand fourteen, each contract\nthat is not a grandfathered health plan shall provide coverage for the\nessential health benefit package. For purposes of this subsection:\n (1) "essential health benefits package" shall have the meaning set\nforth in section 1302(a) of the affordable care act, 42 U.S.C. §\n18022(a); and\n (2) "grandfathered health plan" means coverage provided by a\ncorporation in which an individual was enrolled on March twenty-third,\ntwo thousand ten for as long as the coverage maintains grandfathered\nstatus in accordance with section 1251(e) of the affordable care act, 42\nU.S.C. § 18011(e).\n