§ 4406-A — Arbitration provisions of health maintenance organization contracts

§ 4406-a. Arbitration provisions of health maintenance organization\ncontracts. 1. The enrollee contract of a health maintenance organization\nmay permit enrollees and adult members of the enrollee's family who are\ncovered by such contract to elect to have all claims for damages because\nof injury or death resulting from health care or treatment rendered or\nfailed to be rendered pursuant to the contract by a physician, dentist,\nhospital, health maintenance organization or other health care provider\nsubject to binding arbitration, pursuant to article seventy-five-A of\nthe civil practice law and rules. For the purposes of this section,\n"health maintenance organizations" shall include those health\nmaintenance organizations organized pursuant to this article or pursuant\nto article forty-three of the insurance law. The enrollee contract may\npermit arbitration elections to be executed on behalf of minor children\nor persons judicially determined to be incompetent by a parent, legal\nguardian, committee or conservator or other person legally authorized to\nenroll the minor or incompetent person in a health maintenance\norganization. Arbitration election notices, described in subdivisions\ntwo and three of this section, must be executed by covered adult family\nmembers in order to bind such persons to the arbitration election.\n 2. After receiving the approval of the superintendent of financial\nservices, pursuant to section five thousand six hundred five of the\ninsurance law, health maintenance organizations may provide arbitration\nelection notices to current enrollees and their covered adult family\nmembers. Such notice shall contain the following provision in at least\ntwelve point boldface type immediately above spaces for the signature of\nthe enrollee or covered adult family member: "By signing this form, I am\nagreeing to have any issue of alleged health care malpractice decided by\nneutral arbitration rather than by a court trial before a judge or jury.\n(Health care malpractice means claims for damages because of injury or\ndeath resulting from health care or treatment rendered or failed to be\nrendered pursuant to my health maintenance organization contract by the\nhealth maintenance organization, a physician, dentist, hospital or other\nhealth care provider.) I understand that I will be given the opportunity\nto cancel my agreement, but that all claims arising during the time of\nmy agreement will be subject to arbitration. I understand that by\nsigning the form, I am deemed to have received and reviewed the\ninformation describing arbitration that has been provided to me. I also\nunderstand that there is no requirement that I sign this form and that\nmy decision not to sign this form will not in any way affect my\nmembership or benefits in this health maintenance organization."\n 3. After receiving the approval of the superintendent of financial\nservices, pursuant to section five thousand six hundred five of the\ninsurance law, health maintenance organizations may also provide\narbitration election notices, as specified in subdivision two of this\nsection, to new enrollees and their covered adult family members. In the\nalternative, a health maintenance organization may, after receiving the\nsuperintendent's approval, elect to provide an alternative notice to new\nenrollees and their covered adult family members that provides that new\nenrollees and their covered adult family members shall be subject to the\narbitration of claims unless a form is executed by such persons that\ndeclines consent to the arbitration of claims. A health maintenance\norganization that chooses to provide such alternative notice shall\nprovide an arbitration declination form and notice to all new enrollees\nand their covered adult family members with the following provision in a\nleast twelve point boldface type immediately above spaces for the\nsignature of the enrollee or covered adult family member: "Unless you\nsign this form to decline the option of arbitration, by electing to\nenroll in this health maintenance organization, you are agreeing to have\nany issue of health care malpractice decided by neutral arbitration\nrather than by a court trial before a judge or jury. (Health care\nmalpractice means all claims for damages because of injury or death\nresulting from health care or treatment rendered or failed to be\nrendered pursuant to your health maintenance organization contract by\nthe health maintenance organization, a physician, dentist, hospital or\nother health care provider.) If you do not sign this form to decline\narbitration, you will be given the opportunity to cancel your agreement\nto arbitrate these claims, but all claims arising prior to the time that\nyou cancel the agreement will be subject to arbitration. You are\nentitled to receive information describing arbitration before making\nthis decision. Your decision to sign this form to decline arbitration\nwill not in any way affect your membership or benefits in this health\nmaintenance organization."\n 4. Arbitration election notices may be provided, from time to time, by\nhealth maintenance organizations to persons who have not agreed to\narbitration of such claims. The health maintenance organizations shall,\nin a form and manner determined to be sufficient by the superintendent\nof financial services and on at least an annual basis, provide notice to\npersons who have agreed to arbitration of such claims that such persons\nmay cancel their agreement to arbitrate, including information as to how\nsuch person may cancel the arbitration agreement; provided, however,\nthat the agreement to arbitrate shall remain in force during such\nperson's enrollment or membership in the health maintenance organization\nunless the health maintenance organization receives notification of such\nperson's cancellation of the arbitration agreement or the health\nmaintenance organization withdraws its agreement to arbitrate and\nprovides notice of this fact to persons who elected arbitration.\n 5. Every such notice shall be accompanied by or be part of an\ninformation brochure, prepared in accordance with section five thousand\nsix hundred four of the insurance law, which clearly explains the nature\nand scope of arbitration and the procedures that will be used to conduct\nthese arbitration proceedings.\n 6. All claims arising from surgical, medical, dental and other health\ncare procedures performed or failed to be performed and treatment\nprovided or failed to be provided by a physician, dentist, hospital,\nhealth maintenance organization or other health care provider pursuant\nto the enrollee contract to an enrollee or a covered adult family member\nwho signs the arbitration election notice or who fails to sign the\narbitration declination form specified in subdivision three of this\nsection shall be subject to arbitration and such enrollees or covered\nadult family members shall be bound by the agreement to arbitrate such\nclaims. All physicians, dentists, hospitals, health maintenance\norganizations and other health care providers who provide or receive\ncompensation for health care services pursuant to the enrollee contract\nshall be bound by the agreement to arbitrate.\n 7. Notwithstanding any inconsistent provisions of law, an agreement to\narbitrate which complies with the provisions of this section shall be\npresumed valid.\n