N.Y. Public Health Law § 4406-a: Arbitration provisions of health maintenance organization contracts

§ 4406-a. Arbitration provisions of health maintenance organization

contracts. 1. The enrollee contract of a health maintenance organization

may permit enrollees and adult members of the enrollee's family who are

covered by such contract to elect to have all claims for damages because

of injury or death resulting from health care or treatment rendered or

failed to be rendered pursuant to the contract by a physician, dentist,

hospital, health maintenance organization or other health care provider

subject to binding arbitration, pursuant to article seventy-five-A of

the civil practice law and rules. For the purposes of this section,

"health maintenance organizations" shall include those health

maintenance organizations organized pursuant to this article or pursuant

to article forty-three of the insurance law. The enrollee contract may

permit arbitration elections to be executed on behalf of minor children

or persons judicially determined to be incompetent by a parent, legal

guardian, committee or conservator or other person legally authorized to

enroll the minor or incompetent person in a health maintenance

organization. Arbitration election notices, described in subdivisions

two and three of this section, must be executed by covered adult family

members in order to bind such persons to the arbitration election.

2. After receiving the approval of the superintendent of financial

services, pursuant to section five thousand six hundred five of the

insurance law, health maintenance organizations may provide arbitration

election notices to current enrollees and their covered adult family

members. Such notice shall contain the following provision in at least

twelve point boldface type immediately above spaces for the signature of

the enrollee or covered adult family member: "By signing this form, I am

agreeing to have any issue of alleged health care malpractice decided by

neutral arbitration rather than by a court trial before a judge or jury.

(Health care malpractice means claims for damages because of injury or

death resulting from health care or treatment rendered or failed to be

rendered pursuant to my health maintenance organization contract by the

health maintenance organization, a physician, dentist, hospital or other

health care provider.) I understand that I will be given the opportunity

to cancel my agreement, but that all claims arising during the time of

my agreement will be subject to arbitration. I understand that by

signing the form, I am deemed to have received and reviewed the

information describing arbitration that has been provided to me. I also

understand that there is no requirement that I sign this form and that

my decision not to sign this form will not in any way affect my

membership or benefits in this health maintenance organization."

3. After receiving the approval of the superintendent of financial

services, pursuant to section five thousand six hundred five of the

insurance law, health maintenance organizations may also provide

arbitration election notices, as specified in subdivision two of this

section, to new enrollees and their covered adult family members. In the

alternative, a health maintenance organization may, after receiving the

superintendent's approval, elect to provide an alternative notice to new

enrollees and their covered adult family members that provides that new

enrollees and their covered adult family members shall be subject to the

arbitration of claims unless a form is executed by such persons that

declines consent to the arbitration of claims. A health maintenance

organization that chooses to provide such alternative notice shall

provide an arbitration declination form and notice to all new enrollees

and their covered adult family members with the following provision in a

least twelve point boldface type immediately above spaces for the

signature of the enrollee or covered adult family member: "Unless you

sign this form to decline the option of arbitration, by electing to

enroll in this health maintenance organization, you are agreeing to have

any issue of health care malpractice decided by neutral arbitration

rather than by a court trial before a judge or jury. (Health care

malpractice means all claims for damages because of injury or death

resulting from health care or treatment rendered or failed to be

rendered pursuant to your health maintenance organization contract by

the health maintenance organization, a physician, dentist, hospital or

other health care provider.) If you do not sign this form to decline

arbitration, you will be given the opportunity to cancel your agreement

to arbitrate these claims, but all claims arising prior to the time that

you cancel the agreement will be subject to arbitration. You are

entitled to receive information describing arbitration before making

this decision. Your decision to sign this form to decline arbitration

will not in any way affect your membership or benefits in this health

maintenance organization."

4. Arbitration election notices may be provided, from time to time, by

health maintenance organizations to persons who have not agreed to

arbitration of such claims. The health maintenance organizations shall,

in a form and manner determined to be sufficient by the superintendent

of financial services and on at least an annual basis, provide notice to

persons who have agreed to arbitration of such claims that such persons

may cancel their agreement to arbitrate, including information as to how

such person may cancel the arbitration agreement; provided, however,

that the agreement to arbitrate shall remain in force during such

person's enrollment or membership in the health maintenance organization

unless the health maintenance organization receives notification of such

person's cancellation of the arbitration agreement or the health

maintenance organization withdraws its agreement to arbitrate and

provides notice of this fact to persons who elected arbitration.

5. Every such notice shall be accompanied by or be part of an

information brochure, prepared in accordance with section five thousand

six hundred four of the insurance law, which clearly explains the nature

and scope of arbitration and the procedures that will be used to conduct

these arbitration proceedings.

6. All claims arising from surgical, medical, dental and other health

care procedures performed or failed to be performed and treatment

provided or failed to be provided by a physician, dentist, hospital,

health maintenance organization or other health care provider pursuant

to the enrollee contract to an enrollee or a covered adult family member

who signs the arbitration election notice or who fails to sign the

arbitration declination form specified in subdivision three of this

section shall be subject to arbitration and such enrollees or covered

adult family members shall be bound by the agreement to arbitrate such

claims. All physicians, dentists, hospitals, health maintenance

organizations and other health care providers who provide or receive

compensation for health care services pursuant to the enrollee contract

shall be bound by the agreement to arbitrate.

7. Notwithstanding any inconsistent provisions of law, an agreement to

arbitrate which complies with the provisions of this section shall be

presumed valid.