N.Y. Insurance Law § 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

contracts offered by health maintenance organizations which provide

out-of-plan benefits prior to October first, two thousand thirteen. (a)

On and after January first, nineteen hundred ninety-six, and until

September thirtieth, two thousand thirteen, all health maintenance

organizations issued a certificate of authority under article forty-four

of the public health law or licensed under this article shall offer to

individuals, in addition to the standardized contract required by

section four thousand three hundred twenty-one of this article, a

standardized individual enrollee direct payment contract on an open

enrollment basis as prescribed by section four thousand three hundred

seventeen of this article and section four thousand four hundred six of

the public health law, and regulations promulgated thereunder, with an

out-of-plan benefit system, provided, however, that such requirements

shall not apply to a health maintenance organization exclusively serving

individuals enrolled pursuant to title eleven of article five of the

social services law, title eleven-D of article five of the social

services law, title one-A of article twenty-five of the public health

law or title eighteen of the federal Social Security Act. The

out-of-plan benefit system shall either be provided by the health

maintenance organization pursuant to subdivision two of section four

thousand four hundred six of the public health law or through an

accompanying insurance contract providing out-of-plan benefits offered

by a company appropriately licensed pursuant to this chapter. On and

after January first, nineteen hundred ninety-six, and until September

thirtieth, two thousand thirteen, the contracts issued pursuant to this

section and section four thousand three hundred twenty-one of this

article shall be the only contracts offered by health maintenance

organizations to individuals. The enrollee contracts issued by a health

maintenance organization under this section and section four thousand

three hundred twenty-one of this article shall also be the only

contracts issued by the health maintenance organization for purposes of

conversion pursuant to sections four thousand three hundred four and

four thousand three hundred five of this article. However, nothing in

this section shall be deemed to require health maintenance organizations

to terminate individual direct payment contracts issued prior to January

first, nineteen hundred ninety-six or prohibit health maintenance

organizations from terminating individual direct payment contracts

issued prior to January first, nineteen hundred ninety-six.

(i) On and after January first, two thousand fourteen, each contract

that is not a grandfathered health plan shall provide coverage for the

essential health benefit package. For purposes of this subsection:

(1) "essential health benefits package" shall have the meaning set

forth in section 1302(a) of the affordable care act, 42 U.S.C. §

18022(a); and

(2) "grandfathered health plan" means coverage provided by a

corporation in which an individual was enrolled on March twenty-third,

two thousand ten for as long as the coverage maintains grandfathered

status in accordance with section 1251(e) of the affordable care act, 42

U.S.C. § 18011(e).

(b) The in-plan and out-of-plan covered benefits for the standardized

individual enrollee direct payment contract shall include coverage for

all health services which an enrolled population in a health maintenance

organization might require in order to be maintained in good health,

rendered without limitation as to time and cost, except to the extent

permitted by this chapter.

The in-plan and out-of-plan covered services include the following:

(1) Inpatient hospital services, including:

(A) daily room and board;

(B) general nursing care;

(C) special diets; and

(D) miscellaneous hospital services.

(2) Outpatient hospital services including:

(A) diagnostic and treatment services;

(B) x-rays; and

(C) laboratory tests.

(3) Physician services including:

(A) consultant and referral services;

(B) primary and preventive care services;

(C) in-hospital medical services;

(D) surgical services;

(E) anesthetic services; and

(F) second surgical opinion.

(4) Preventive health services including:

(A) periodic physical examinations, including eye and ear examinations

to determine the need for vision and hearing correction;

(B) well child care from birth;

(C) pediatric and adult immunizations;

(D) mammography screening, as provided in subsection (p) of section

four thousand three hundred three of this article;

(E) cervical cytology screening as provided in subsection (t) of

section four thousand three hundred three of this article; and

(F) for a contract that is not a grandfathered health plan, the

following additional preventive health services:

(i) evidence-based items or services that have in effect a rating of

'A' or 'B' in the current recommendations of the United States

preventive services task force;

(ii) immunizations that have in effect a recommendation from the

advisory committee on immunization practices of the centers for disease

control and prevention with respect to the individual involved;

(iii) with respect to children, including infants and adolescents,

evidence-informed preventive care and screenings provided for in the

comprehensive guidelines supported by the health resources and services

administration; and

(iv) with respect to women, such additional preventive care and

screenings not described in item (i) of this subparagraph and as

provided for in comprehensive guidelines supported by the health

resources and services administration.

(v) For purposes of this subparagraph, "grandfathered health plan"

means coverage provided by a corporation in which an individual was

enrolled on March twenty-third, two thousand ten for as long as the

coverage maintains grandfathered status in accordance with section

1251(e) of the Affordable Care Act, 42 U.S.C. § 18011(e).

(5) Emergency services.

(6) Diagnostic laboratory services.

(7) Therapeutic and diagnostic radiologic services.

(8) Preadmission testing.

(9) Home health services up to two hundred visits per member per

calendar year.

(10) Maternity care.

(11) Chemotherapy services.

(12) Hemodialysis services consistent with the provisions of

subsection (gg) of section four thousand three hundred three of this

article.

(13) Outpatient physical therapy up to ninety visits per condition per

calendar year.

(14) Hospice care up to two hundred ten days.

(15) Skilled nursing facility care when preceded by a hospital stay of

at least three days and further hospitalization would otherwise be

necessary.

(16) Equipment, supplies and self-management education for the

treatment of diabetes.

(17) Inpatient diagnosis and treatment of mental, nervous or emotional

disorders or ailments up to thirty days per calendar year combined with

inpatient treatment of alcoholism and substance abuse.

(18) Inpatient diagnosis and treatment of alcoholism and alcohol abuse

and substance abuse and substance dependence up to thirty days per

calendar year for detoxification combined with inpatient treatment of

mental, nervous or emotional disorders or ailments.

(19) Outpatient diagnosis and treatment of mental, nervous or

emotional disorders or ailments up to thirty non-emergency and three

emergency visits per calendar year.

(20) Ambulance services.

(21) Private duty nursing up to five thousand dollars per individual

per calendar year up to a ten thousand dollar individual lifetime

maximum.

(22) Prosthetics, orthotics, durable medical equipment and medical

supplies.

(23) Inpatient physical rehabilitation services.

(24) Blood and blood products.

(25) Prescription drugs, including contraceptive drugs or devices

approved by the federal food and drug administration or generic

equivalents approved as substitutes by such food and drug administration

and nutritional supplements (formulas), whether administered orally or

via a feeding tube for the therapeutic treatment of phenylketonuria,

branched-chain ketonuria, galactosemia and homocystinuria, obtained at a

participating pharmacy under a prescription written by an in-plan or

out-of-plan provider. Health maintenance organizations, in addition to

providing coverage for prescription drugs at a participating pharmacy,

may utilize a mail order prescription drug program. Health maintenance

organizations may provide prescription drugs pursuant to a drug

formulary; however, health maintenance organizations must implement an

appeals process so that the use of non-formulary prescription drugs may

be requested by a physician or other provider.

Health maintenance organizations shall impose a one hundred dollar

individual deductible and a three hundred dollar family deductible per

calendar year for prescription drugs obtained at a participating

pharmacy. Health maintenance organizations may not impose a deductible

on prescriptions obtained through the mail order drug program.

In addition to the deductible, a ten dollar copayment shall be imposed

on up to a thirty-four day supply of brand name prescription drugs

obtained at a participating pharmacy. A five dollar copayment shall be

imposed on up to a thirty-four day supply of generic prescription drugs

or brand name drugs for which there is no generic equivalent obtained at

a participating pharmacy.

If a mail order drug program is utilized, a twenty dollar copayment

shall be imposed on a ninety day supply of brand name prescription

drugs. A ten dollar copayment shall be imposed on a ninety day supply of

generic prescription drugs or brand name drugs for which there is no

generic equivalent obtained through the mail order drug program.

In no event shall the copayment exceed the cost of the prescribed

drug.

(26) Bone mineral density measurements or tests and, if such contract

otherwise includes coverage for prescription drugs, drugs and devices

approved by the federal food and drug administration or generic

equivalents as approved substitutes.

In determining appropriate coverage provided by subparagraphs (A), (B)

and (C) of this paragraph, the insurer or health maintenance

organization shall adopt standards that include the criteria of the

federal Medicare program and the criteria of the national institutes of

health for the detection of osteoporosis, provided that such coverage

shall be further determined as follows:

(A) For purposes of subparagraphs (B) and (C) of this paragraph, bone

mineral density measurements or tests, drugs and devices shall include

those covered under the criteria of the federal Medicare program as well

as those in accordance with the criteria, of the national institutes of

health, including, as consistent with such criteria dual-energy x-ray

absorptiometry.

(B) For purposes of subparagraphs (A) and (C) of this paragraph, bone

mineral density measurements or tests, drugs and devices shall be

covered for individuals meeting the criteria for coverage consistent

with the criteria under the federal Medicare program or the criteria of

the national institutes of health; provided that, to the extent

consistent with such criteria, individuals qualifying for coverage shall

at a minimum, include individuals:

(i) previously diagnosed as having osteoporosis or having a family

history of osteoporosis; or

(ii) with symptoms or conditions indicative of the presence, or the

significant risk, of osteoporosis; or

(iii) on a prescribed drug regimen posing a significant risk of

osteoporosis; or

(iv) with lifestyle factors to such a degree as posing a significant

risk of osteoporosis; or

(v) with such age, gender and/or other physiological characteristics

which pose a significant risk for osteoporosis.

(C) Such coverage required pursuant to subparagraph (A) or (B) of this

paragraph may be subject to annual deductibles and coinsurance as may be

deemed appropriate by the superintendent and as are consistent with

those established for other benefits within a given policy.

(D) In addition to subparagraph (A), (B) or (C) of this paragraph,

except for a grandfathered health plan under subparagraph (E) of this

paragraph, coverage shall be provided for the following items or

services for bone mineral density, and such coverage shall not be

subject to annual deductibles or coinsurance:

(i) evidence-based items or services for bone mineral density that

have in effect a rating of 'A' or 'B' in the current recommendations of

the United States preventive services task force; and

(ii) with respect to women, such additional preventive care and

screenings for bone mineral density not described in item (i) of this

subparagraph and as provided for in comprehensive guidelines supported

by the health resources and services administration.

(E) For purposes of this paragraph, "grandfathered health plan" means

coverage provided by a corporation in which an individual was enrolled

on March twenty-third, two thousand ten for as long as the coverage

maintains grandfathered status in accordance with section 1251(e) of the

Affordable Care Act, 42 U.S.C. § 18011(e).

(27) Services covered under such policy when provided by a

comprehensive care center for eating disorders pursuant to article

thirty of the mental hygiene law; provided, however, that reimbursement

under such policy for services provided through such comprehensive care

centers shall, to the extent possible and practicable, be structured in

a manner to facilitate the individualized, comprehensive and integrated

plans of care which such centers' network of practitioners and providers

are required to provide.

(b-1) The in-plan and out-of-plan covered benefits for the

standardized individual enrollee direct payment contracts established by

this section and section four thousand three hundred twenty-one of this

article shall not include drugs, procedures and supplies for the

treatment of erectile dysfunction when provided to, or prescribed for

use by, a person who is required to register as a sex offender pursuant

to article six-C of the correction law, provided that: (1) any denial of

coverage pursuant to this subsection shall provide the enrollee with the

means of obtaining additional information concerning both the denial and

the means of challenging such denial; (2) all drugs, procedures and

supplies for the treatment of erectile dysfunction may be subject to

prior authorization by health maintenance organizations or insurers for

the purposes of implementing this subsection; and (3) the superintendent

shall promulgate regulations to implement the denial of coverage

pursuant to this subsection giving health maintenance organizations and

insurers at least sixty days following promulgation of the regulations

to implement their denial procedures pursuant to this subsection.

(b-2) No person or entity authorized to provide coverage under this

section shall be subject to any civil or criminal liability for damages

for any decision or action pursuant to subsection (b-1) of this section,

made in the ordinary course of business if that authorized person or

entity acted reasonably and in good faith with respect to such

information.

(b-3) Notwithstanding any other provision of law, if the commissioner

of health makes a finding pursuant to subdivision twenty-three of

section two hundred six of the public health law, the superintendent is

authorized to remove a drug, procedure or supply from the services

covered by the contracts established by this section and section four

thousand three hundred twenty-one of this article for those persons

required to register as sex offenders pursuant to article six-C of the

correction law.

(c) The in-plan benefit system shall impose a ten dollar copayment on

all visits to a physician or other provider with the exception of visits

for pre-natal and post-natal care, well child visits provided pursuant

to paragraph two of subsection (j) of section four thousand three

hundred three of this article, preventive health services provided

pursuant to subparagraph (F) of paragraph four of subsection (b) of this

section or items or services for bone mineral density provided pursuant

to subparagraph (D) of paragraph twenty-six of subsection (b) of this

section for which no copayment shall apply. A copayment of ten dollars

shall be imposed on equipment, supplies and self-management education

for the treatment of diabetes. Coinsurance of ten percent shall apply to

visits for the diagnosis and treatment of mental, nervous or emotional

disorders or ailments. A thirty-five dollar copayment shall be imposed

on emergency services rendered in the emergency room of a hospital;

however, this copayment must be waived if hospital admission results.

(d) The out-of-plan benefit system shall have an annual deductible

established at one thousand dollars per calendar year for an individual

and two thousand dollars per year for a family. Coinsurance shall be

established at twenty percent with the health maintenance organization

or insurer paying eighty percent of the usual, customary and reasonable

charges, or eighty percent of the amounts listed on a fee schedule filed

with and approved by the superintendent which provides a comparable

level of reimbursement. Coinsurance of ten percent shall apply to

outpatient visits for the diagnosis and treatment of mental, nervous or

emotional disorders or ailments. The benefits described in subparagraph

(F) of paragraph three and paragraphs seventeen and eighteen of

subsection (b) of this section shall not be subject to the deductible or

coinsurance. The benefits described in paragraph nine of subsection (b)

of this section shall not be subject to the deductible. The out-of-plan

out-of-pocket maximum deductible and coinsurance shall be established at

three thousand dollars per calendar year for an individual and five

thousand dollars per calendar year for a family. The out-of-plan

lifetime benefit maximum shall be established at five hundred thousand

dollars for benefits that are not essential health benefits. A lifetime

limit on the dollar amount of essential health benefits for any

individual shall not be established. For purposes of this subsection,

"essential health benefits" shall have the meaning ascribed by section

1302(b) of the Affordable Care Act, 42 U.S.C. § 18022(b).

(e) The provisions of each contract describing administrative

procedures and other provisions not affecting the scope of, or

conditions for obtaining, covered benefits, such as, but not limited to,

eligibility and termination provisions, may be of the type generally

issued by the health maintenance organization and/or insurer, as long as

the superintendent determines that the terms and description of those

administrative and other provisions are unlikely to affect consumers'

determinations of which health maintenance organization's contract to

purchase and are not contrary to law. Each contract may also include

limitations and conditions on coverage of benefits described in this

section provided the superintendent determines the limitations and

conditions on coverage were commonly included in the health maintenance

organization and/or health insurance products covering individuals on a

direct payment basis prior to January first, nineteen hundred ninety-six

and are not contrary to law.

(f) A health maintenance organization may offer the required

out-of-plan benefits by means of a rider to a contract offering in-plan

benefits only.

(g) Day and visit limitations on benefits included in this section are

aggregate limitations regardless of whether services are received

in-plan or out-of-plan. The five thousand dollar per individual per

calendar year limitation and ten thousand dollar lifetime limitation on

private duty nursing is also an aggregate limitation for in-plan and

out-of-plan benefits combined.

(h) The superintendent shall be authorized to modify, by regulation,

the copayments, deductibles and coinsurance amounts described in this

section, if the superintendent determines such amendments are necessary

to moderate potential premiums. On or after January first, nineteen

hundred ninety-eight, the superintendent shall be authorized to

establish one or more additional standardized individual enrollee direct

payment contracts if the superintendent determines, after one or more

public hearings, additional contracts with different levels of benefits

are necessary to meet the needs of the public.

(i) On and after January first, two thousand fourteen, each contract

that is not a grandfathered health plan shall provide coverage for the

essential health benefit package. For purposes of this subsection:

(1) "essential health benefits package" shall have the meaning set

forth in section 1302(a) of the affordable care act, 42 U.S.C. §

18022(a); and

(2) "grandfathered health plan" means coverage provided by a

corporation in which an individual was enrolled on March twenty-third,

two thousand ten for as long as the coverage maintains grandfathered

status in accordance with section 1251(e) of the affordable care act, 42

U.S.C. § 18011(e).