N.Y. Insurance Law § 4318: Pre-existing condition provisions

§ 4318. Pre-existing condition provisions. Every individual health

insurance contract and every group or blanket accident and health

insurance contract issued or issued for delivery in this state which

includes a pre-existing condition provision shall contain in substance

the following provision or provisions which in the opinion of the

superintendent are more favorable to individuals, members of the group

and their eligible dependents:

(a) In determining whether a pre-existing condition provision applies

to a covered person, the contract shall credit the time the covered

person was previously covered under creditable coverage, if the previous

creditable coverage was continuous to a date not more than sixty-three

days prior to the enrollment date of the new coverage. In the case of

previous health maintenance organization coverage, any affiliation

period prior to that previous coverage becoming effective shall also be

credited pursuant to this subsection.

(b) No pre-existing condition provision shall exclude coverage for a

period in excess of twelve months following the enrollment date for the

covered person and may only relate to a condition (whether physical or

mental), regardless of the cause of the condition for which medical

advice, diagnosis, care or treatment was recommended or received within

the six month period ending on the enrollment date. For purposes of this

section "enrollment date" means the first day of coverage of the

individual under the contract or, if earlier, the first day of the

waiting period that must pass with respect to an individual before the

individual is eligible to be covered for benefits. If an individual

seeks and obtains coverage in the individual market, any period after

the date the individual files a substantially complete application for

coverage and before the first day of coverage is a waiting period. For

purposes of this section, genetic information shall not be treated as a

pre-existing condition in the absence of a diagnosis of the condition

related to such information. No pre-existing condition provision shall

exclude coverage in the case of:

(1) an individual who, as of the last day of the thirty-day period

beginning with the date of birth, is covered under creditable coverage

as defined in subsection (c) of this section;

(2) a child who is adopted or placed for adoption before attaining

eighteen years of age and who, as of the last day of the thirty-day

period beginning on the date of the adoption or placement for adoption,

is covered under creditable coverage as defined in subsection (c) of

this section;

(3) pregnancy (except in an individual direct payment contract or a

student blanket accident and health insurance contract in which a

corporation may exclude coverage, subject to a credit for previous

creditable coverage, for a period not to exceed ten months for a

pregnancy existing on the enrollment date); or

(4) an individual, and any dependent of such individual, who is

eligible for a federal tax credit under the federal Trade Adjustment

Assistance Reform Act of 2002 and who has three months or more of

creditable coverage.

Paragraphs one and two of this subsection shall no longer apply to an

individual after the end of the first sixty-three day period during all

of which the individual was not covered under any creditable coverage.

(c) For purposes of this section, "creditable coverage" means, with

respect to an individual, coverage of the individual under any of the

following:

(1) A group health plan;

(2) Health insurance coverage;

(3) Part A or B of title XVIII of the Social Security Act;

(4) Title XIX of the Social Security Act, other than coverage

consisting solely of benefits under section 1928;

(5) Chapter 55 of title 10, United States Code;

(6) A medical care program of the Indian Health Service or of a tribal

organization;

(7) A state health benefits risk pool;

(8) A health plan offered under chapter 89 of title 5, United States

Code;

(9) A public health plan (as defined in regulations);

(10) A health benefit plan under section 5(e) of the Peace Corps Act

(22 U.S.C. 2504(e)).

(d)(1) For purposes of applying the credit of such creditable

coverage, a corporation shall count a period of creditable coverage

without regard to the specific benefits covered during the period.

(2) Alternatively, a corporation may elect to count the period of

coverage based on coverage of benefits within each of several classes or

categories of benefits as specified in regulations. Such election shall

be made on a uniform basis for all subscribers, participants and

beneficiaries. Pursuant to such election a corporation shall count a

period of creditable coverage with respect to any class or category of

benefits if any level of benefits is covered within such class or

category. A corporation making such election shall prominently state in

any disclosure statement, and shall set forth in any contract or

certificate issued in connection with the coverage, that the corporation

has made such election. Such disclosure statement shall include a

description of the effect of the election with regard to the application

of creditable coverage.

(3) Notwithstanding the foregoing paragraph, for purposes of

determining the extent to which a pre-existing condition limitation has

been satisfied in a contract issued pursuant to section four thousand

three hundred twenty-one or four thousand three hundred twenty-two of

this article within thirty days of discontinuance of a class of health

maintenance organization direct payment contract for enrollees whose

contract was discontinued, a corporation shall credit the coverage of an

enrollee under a health maintenance organization direct payment contract

issued prior to January first, nineteen hundred ninety-six, without

regard to the specific benefits covered under the health maintenance

organization contract.

(4) With respect to an "eligible individual", as defined in section

2741(b) of the federal Public Health Service Act, 42 U.S.C. §

300gg-41(b), a corporation may not impose any pre-existing condition

exclusion in an individual health insurance contract. For all other

covered persons, the pre-existing condition crediting requirement of

subsection (a) of this section shall be applicable.

(e) For the purposes of this section the term "group health plan"

means an employee welfare benefit plan (as defined in section 3(1) of

the Employee Retirement Income Security Act of 1974) to the extent that

the plan provides medical care (including items and services paid for as

medical care) to employees or their dependents (as defined under the

terms of the plan) directly or through insurance, reimbursement or

otherwise.

(f) A corporation shall not impose any pre-existing condition

exclusion in an individual or group contract of hospital, medical,

surgical or prescription drug expense insurance.