N.Y. Public Health Law § 4408: Disclosure of information

§ 4408. Disclosure of information. 1. Each subscriber, and upon

request each prospective subscriber prior to enrollment, shall be

supplied with written disclosure information which may be incorporated

into the member handbook or the subscriber contract or certificate

containing at least the information set forth below. In the event of any

inconsistency between any separate written disclosure statement and the

subscriber contract or certificate, the terms of the subscriber contract

or certificate shall be controlling. The information to be disclosed

shall include at least the following:

(a) a description of coverage provisions; health care benefits;

benefit maximums, including benefit limitations; and exclusions of

coverage, including the definition of medical necessity used in

determining whether benefits will be covered;

(b) a description of all prior authorization or other requirements for

treatments and services;

(c) a description of utilization review policies and procedures used

by the health maintenance organization, including:

(i) the circumstances under which utilization review will be

undertaken;

(ii) the toll-free telephone number of the utilization review agent;

(iii) the timeframes under which utilization review decisions must be

made for prospective, retrospective and concurrent decisions;

(iv) the right to reconsideration;

(v) the right to an appeal, including the expedited and standard

appeals processes and the time frames for such appeals;

(vi) the right to designate a representative;

(vii) a notice that all denials of claims will be made by qualified

clinical personnel and that all notices of denials will include

information about the basis of the decision;

(viii) a notice of the right to an external appeal together with a

description, jointly promulgated by the commissioner and the

superintendent of financial services as required pursuant to subdivision

five of section forty-nine hundred fourteen of this chapter, of the

external appeal process established pursuant to title two of article

forty-nine of this chapter and the timeframes for such appeals; and

(ix) further appeal rights, if any;

(d) a description prepared annually of the types of methodologies the

health maintenance organization uses to reimburse providers specifying

the type of methodology that is used to reimburse particular types of

providers or reimburse for the provision of particular types of

services; provided, however, that nothing in this paragraph should be

construed to require disclosure of individual contracts or the specific

details of any financial arrangement between a health maintenance

organization and a health care provider;

(e) an explanation of a subscriber's financial responsibility for

payment of premiums, coinsurance, co-payments, deductibles and any other

charges, annual limits on a subscriber's financial responsibility, caps

on payments for covered services and financial responsibility for

non-covered health care procedures, treatments or services provided

within the health maintenance organization;

(f) an explanation of a subscriber's financial responsibility for

payment when services are provided by a health care provider who is not

part of the health maintenance organization or by any provider without

required authorization or when a procedure, treatment or service is not

a covered health care benefit;

(g) a description of the grievance procedures to be used to resolve

disputes between a health maintenance organization and an enrollee,

including: the right to file a grievance regarding any dispute between

an enrollee and a health maintenance organization; the right to file a

grievance orally when the dispute is about referrals or covered

benefits; the toll-free telephone number which enrollees may use to file

an oral grievance; the timeframes and circumstances for expedited and

standard grievances; the right to appeal a grievance determination and

the procedures for filing such an appeal; the timeframes and

circumstances for expedited and standard appeals; the right to designate

a representative; a notice that all disputes involving clinical

decisions will be made by qualified clinical personnel; and that all

notices of determination will include information about the basis of the

decision and further appeal rights, if any;

(h) a description of the procedure for providing care and coverage

twenty-four hours a day for emergency services. Such description shall

include a definition of emergency services; notice that emergency

services are not subject to prior approval; and shall describe the

enrollee's financial and other responsibilities regarding obtaining such

services including when such services are received outside the health

maintenance organization's service area;

(i) a description of procedures for enrollees to select and access the

health maintenance organization's primary and specialty care providers,

including notice of how to determine whether a participating provider is

accepting new patients;

(j) a description of the procedures for changing primary and specialty

care providers within the health maintenance organization;

(k) notice that an enrollee may obtain a referral to a health care

provider outside of the health maintenance organization's network or

panel when the health maintenance organization does not have a health

care provider who is geographically accessible to the enrollee and who

has appropriate training and experience in the network or panel to meet

the particular health care needs of the enrollee and the procedure by

which the enrollee can obtain such referral;

(l) notice that an enrollee with a condition which requires ongoing

care from a specialist may request a standing referral to such a

specialist and the procedure for requesting and obtaining such a

standing referral;

(m) notice that an enrollee with (i) a life-threatening condition or

disease or (ii) a degenerative and disabling condition or disease either

of which requires specialized medical care over a prolonged period of

time may request a specialist responsible for providing or coordinating

the enrollee's medical care and the procedure for requesting and

obtaining such a specialist;

(n) notice that an enrollee with a (i) a life-threatening condition or

disease or (ii) a degenerative and disabling condition or disease either

of which requires specialized medical care over a prolonged period of

time may request access to a specialty care center and the procedure by

which such access may be obtained;

(o) a description of the mechanisms by which enrollees may participate

in the development of the policies of the health maintenance

organization;

(p) a description of how the health maintenance organization addresses

the needs of non-English speaking enrollees;

(p-1) notice that an enrollee shall have direct access to primary and

preventive obstetric and gynecologic services, including annual

examinations, care resulting from such annual examinations, and

treatment of acute gynecologic conditions, from a qualified provider of

such services of her choice from within the plan or for any care related

to a pregnancy;

(q) notice of all appropriate mailing addresses and telephone numbers

to be utilized by enrollees seeking information or authorization;

(r) a listing by specialty, which may be in a separate document that

is updated annually, of the name, address, telephone number, and digital

contact information of all participating providers, including

facilities, and: (i) whether the provider is accepting new patients;

(ii) in the case of mental health or substance use disorder services

providers, any affiliations with participating facilities certified or

authorized by the office of mental health or the office of addiction

services and supports, and any restrictions regarding the availability

of the individual provider's services; and (iii) in the case of

physicians, board certification, languages spoken and any affiliations

with participating hospitals. The listing shall also be posted on the

health maintenance organization's website and the health maintenance

organization shall update the website within fifteen days of the

addition or termination of a provider from the health maintenance

organization's network or a change in a physician's hospital

affiliation;

(s) where applicable, a description of the method by which an enrollee

may submit a claim for health care services;

(t) with respect to out-of-network coverage:

(i) a clear description of the methodology used by the health

maintenance organization to determine reimbursement for out-of-network

health care services;

(ii) the amount that the health maintenance organization will

reimburse under the methodology for out-of-network health care services

set forth as a percentage of the usual and customary cost for

out-of-network health care services;

(iii) examples of anticipated out-of-pocket costs for frequently

billed out-of-network health care services;

(u) information in writing and through an internet website that

reasonably permits an enrollee or prospective enrollee to estimate the

anticipated out-of-pocket cost for out-of-network health care services

in a geographical area or zip code based upon the difference between

what the health maintenance organization will reimburse for

out-of-network health care services and the usual and customary cost for

out-of-network health care services; and

(v) the most recent comparative analysis performed by the health

maintenance organization to assess the provision of its covered services

in accordance with the Paul Wellstone and Pete Dominici Mental Health

Parity and Addiction Equity Act of 2008, 42 U.S.C. 18031(j) and any

amendments to, and federal guidance and regulations issued under, those

Acts.

2. Each health maintenance organization shall, upon request of an

enrollee or prospective enrollee:

(a) provide a list of the names, business addresses and official

positions of the membership of the board of directors, officers,

controlling persons, owners or partners of the health maintenance

organization;

(b) provide a copy of the most recent annual certified financial

statement of the health maintenance organization, including a balance

sheet and summary of receipts and disbursements prepared by a certified

public accountant;

(c) provide a copy of the most recent individual, direct pay

subscriber contracts;

(d) provide information relating to consumer complaints compiled

pursuant to section two hundred ten of the insurance law;

(e) provide the procedures for protecting the confidentiality of

medical records and other enrollee information;

(f) allow enrollees and prospective enrollees to inspect drug

formularies used by such health maintenance organization; and provided

further, that the health maintenance organization shall also disclose

whether individual drugs are included or excluded from coverage to an

enrollee or prospective enrollee who requests this information;

(g) provide a written description of the organizational arrangements

and ongoing procedures of the health maintenance organization's quality

assurance program;

(h) provide a description of the procedures followed by the health

maintenance organization in making decisions about the experimental or

investigational nature of individual drugs, medical devices or

treatments in clinical trials;

(i) provide individual health practitioner affiliations with

participating hospitals, if any;

(j) upon written request, provide specific written clinical review

criteria relating to a particular condition or disease including

clinical review criteria relating to a step therapy protocol override

determination pursuant to subdivisions three-a, three-b and three-c of

section forty-nine hundred three of this chapter, and, where

appropriate, other clinical information which the organization might

consider in its utilization review and the organization may include with

the information a description of how it will be used in the utilization

review process; provided, however, that to the extent such information

is proprietary to the organization, the enrollee or prospective enrollee

shall only use the information for the purposes of assisting the

enrollee or prospective enrollee in evaluating the covered services

provided by the organization. Such clinical review criteria, and other

clinical information shall also be made available to a health care

professional as defined in subdivision six of section forty-nine hundred

of this chapter, on behalf of an enrollee and upon written request;

(k) provide the written application procedures and minimum

qualification requirements for health care providers to be considered by

the health maintenance organization;

(l) disclose other information as required by the commissioner,

provided that such requirements are promulgated pursuant to the state

administrative procedure act;

(m) disclose whether a health care provider scheduled to provide a

health care service is an in-network provider; and

(n) with respect to out-of-network coverage, disclose the approximate

dollar amount that the health maintenance organization will pay for a

specific out-of-network health care service. The health maintenance

organization shall also inform an enrollee through such disclosure that

such approximation is not binding on the health maintenance organization

and that the approximate dollar amount that the health maintenance

organization will pay for a specific out-of-network health care service

may change.

3. Nothing in this section shall prevent a health maintenance

organization from changing or updating the materials that are made

available to enrollees.

4. If a primary care provider ceases participation in the health

maintenance organization, the organization shall provide written notice

within fifteen days from the date that the organization becomes aware of

such change in status to each enrollee who has chosen the provider as

their primary care provider. If an enrollee is in an ongoing course of

treatment with any other participating provider who becomes unavailable

to continue to provide services to such enrollee and the health

maintenance organization is aware of such ongoing course of treatment,

the health maintenance organization shall provide written notice within

fifteen days from the date that the health maintenance organization

becomes aware of such unavailability to such enrollee. Each notice shall

also describe the procedures for continuing care pursuant to paragraphs

(e) and (f) of subdivision six of section four thousand four hundred

three of this article and for choosing an alternative provider.

5. Every health maintenance organization shall annually on or before

April first, file a report with the commissioner and superintendent of

financial services showing its financial condition as of the last day of

the preceding calendar year, in such form and providing such information

as the commissioner shall prescribe.

6. Every health maintenance organization offering to indemnify

enrollees pursuant to subdivision nine of section forty-four hundred

five and subdivision two of section forty-four hundred six of this

article shall on a quarterly basis file a report with the commissioner

and the superintendent of financial services showing the percentage

utilization for the preceding quarter of non-participating provider

services in such form and providing such other information as the

commissioner shall prescribe.

7. For purposes of this section, "usual and customary cost" shall mean

the eightieth percentile of all charges for the particular health care

service performed by a provider in the same or similar specialty and

provided in the same geographical area as reported in a benchmarking

database maintained by a nonprofit organization specified by the

superintendent of financial services. The nonprofit organization shall

not be affiliated with an insurer, a corporation subject to article

forty-three of the insurance law, a municipal cooperative health benefit

plan certified pursuant to article forty-seven of the insurance law, or

a health maintenance organization certified pursuant to this article.

* 8. Every contract delivered or issued for delivery in this state

which provides major medical or similar comprehensive-type coverage

shall provide space on any enrollment, renewal or initial online portal

process setup forms required of a subscriber or applicant for coverage,

excepting forms issued by the NY State of Health, the official Health

Plan Marketplace, other than those specifically referenced in

subparagraph (iv) of paragraph (a) of subdivision five of section

forty-three hundred ten and paragraph (v) of subdivision one of section

two hundred six of this chapter, so that the subscriber or applicant for

coverage shall register or decline registration in the donate life

registry for organ, eye and tissue donations under this section of the

enrollment or renewal form and that the following is stated on the form

in clear and conspicuous type:

"You must fill out the following section: Would you like to be added

to the Donate Life Registry? Check box for 'yes' or 'skip this

question'."

* NB There are 2 sb 8's

* 8. (a) As used in this subdivision:

(i) "Pharmacy benefit manager" shall have the meaning set forth in

section two hundred eighty-a of this chapter.

(ii) "Cost-sharing information" means the amount a subscriber is

required to pay to receive a drug that is covered under the subscriber's

insurance contract.

(iii) "Covered/coverage" means those health care services to which a

subscriber is entitled under the terms of the subscriber contract.

(iv) "Electronic health record" means a digital version of a patient's

paper chart and medical history that makes information available

instantly and securely to authorized users.

(v) "Electronic prescribing system" means a system that enables

prescribers to enter prescription information into a computer

prescription device and securely transmit the prescription to pharmacies

using a special software program and connectivity to a transmission

network.

(vi) "Electronic prescription" shall have the meaning set forth in

section thirty-three hundred two of this chapter.

(vii) "Prescriber" means a health care provider licensed to prescribe

medication or medical devices in this state.

(viii) "Real-time benefit tool" or "RTBT" means an electronic

prescription decision support tool that: (1) is capable of integrating

with prescribers' electronic prescribing system and, if feasible,

electronic health record systems; and (2) complies with the technical

standards adopted by an American National Standards Institute (ANSI)

accredited standards development organization.

(ix) "Authorized third party" shall include a third party legally

authorized under state or federal law subject to a Health Insurance

Portability and Accountability Act (HIPAA) business associate agreement.

(b) The provisions of this section shall not apply to any health plan

that exclusively serves individuals enrolled pursuant to a federal or

state insurance affordability program, including the medical assistance

program under title eleven of article five of the social services law,

child health plus under section twenty-five hundred eleven of this

chapter, the basic health program under section three hundred

sixty-nine-gg of the social services law, or a plan providing services

under title XVIII of the federal social security act.

(c) A health maintenance organization or pharmacy benefit manager

shall, upon request of the subscriber, the subscriber's health care

provider, or an authorized third party on the subscriber's behalf, made

to the health maintenance organization or pharmacy benefit manager,

furnish the cost, benefit, and coverage data required by this

subdivision to the subscriber, the subscriber's health care provider, or

the authorized third party and shall ensure that such data is: (i)

current no later than one business day after any change to the cost,

benefit, or coverage data is made; (ii) provided through a RTBT when the

request is made by the subscriber's health care provider; and (iii) in a

format that is easily accessible to the requestor.

(d) When providing the data required by paragraph (c) of this

subdivision, the health maintenance organization or pharmacy benefit

manager shall use established industry content and transport standards

published by:

(i) a standards developing organization accredited by the American

National Standards Institute (ANSI), including, the National Council for

Prescription Drug Programs (NCPDP), ASC X12, Health Level 7; or

(ii) a relevant federal or state governing body, including the Center

for Medicare & Medicaid Services or the Office of the National

Coordinator for Health Information Technology.

(iii) another format deemed acceptable to the department which

provides the data prescribed in paragraph (c) of this subdivision and in

the same timeliness as required by this section.

(e) A facsimile shall not be considered an acceptable electronic

format pursuant to this subdivision.

(f) Upon a request made pursuant to paragraph (c) of this subdivision,

the health maintenance organization or pharmacy benefit manager shall

provide the following data for any drug covered under the subscriber's

subscriber contract:

(i) subscriber-specific eligibility information;

(ii) subscriber-specific prescription cost and benefit data, such as

applicable formulary, benefit, coverage, and cost-sharing data for the

prescribed drug and clinically-appropriate alternatives, when

appropriate;

(iii) subscriber-specific cost-sharing information that describes

variance in cost-sharing based on the pharmacy dispensing the prescribed

drug or its alternatives, and in relation to the insured's benefit; and

(iv) applicable utilization management requirements.

(g) A health maintenance organization or pharmacy benefit manager

shall furnish the data as required whether the request is made using the

drug's unique billing code, such as a National Drug Code or Healthcare

Common Procedure Coding System code or descriptive term. A health

maintenance organization or pharmacy benefit manager shall not deny or

unreasonably delay processing a request.

(h) A health maintenance organization and pharmacy benefit manager

shall not, except as may be required or authorized by law, interfere

with, prevent, or materially discourage access, exchange, or use of the

data as required; nor shall a health maintenance organization or

pharmacy benefit manager penalize a health care provider for disclosing

such information to a subscriber or legally prescribing, administering,

or ordering a lower cost, clinically appropriate alternative.

(i) Nothing in this subdivision shall be construed to limit access to

the most up-to-date subscriber-specific eligibility or

subscriber-specific prescription cost and benefit data by the health

maintenance organization or pharmacy benefit manager.

(j) Nothing in this subdivision shall interfere with subscriber choice

and a health care provider's ability to convey the full range of

prescription drug cost options to a subscriber. Health maintenance

organizations and pharmacy benefit managers shall not restrict a health

care provider from communicating to the subscriber prescription cost

options.

* NB There are 2 sb 8's