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A03167 Summary:

BILL NOA03167A
 
SAME ASNo same as
 
SPONSORBradley (MS)
 
COSPNSRDelMonte, Gunther, Benedetto, Gottfried, Colton, Jaffee, Fields, Maisel, Schimel, Paulin, Stirpe, Englebright
 
MLTSPNSRBing, Boyland, Brennan, Cymbrowitz, Galef, Hooper, Hyer-Spencer, Markey, Mayersohn, Pheffer, Reilly, Robinson, Sweeney, Titone, Towns, Weisenberg
 
Amd SS3224-a & 2406, Ins L
 
Relates to standards for prompt, fair and equitable settlement of claims for health care and payments for health care services; prohibits insurers from seeking refunds after 24 months; provides for civil fines for a finding of a pattern or practice of prohibited acts relating to payment of claims.
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A03167 Actions:

BILL NOA03167A
 
01/23/2009referred to insurance
04/30/2009amend and recommit to insurance
04/30/2009print number 3167a
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A03167 Floor Votes:

There are no votes for this bill in this legislative session.
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A03167 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3167--A
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2009
                                       ___________
 
        Introduced by M. of A. BRADLEY, DelMONTE, GUNTHER, BENEDETTO, GOTTFRIED,
          COLTON, JAFFEE, FIELDS, MAISEL, SCHIMEL -- Multi-Sponsored by -- M. of
          A.  BOYLAND, BRENNAN, CYMBROWITZ, HYER-SPENCER, MARKEY, PHEFFER, REIL-
          LY,  ROBINSON,  SWEENEY,  TITONE,  TOWNS,  WEISENBERG -- read once and
          referred to the Committee on Insurance -- committee  discharged,  bill

          amended,  ordered reprinted as amended and recommitted to said commit-
          tee
 
        AN ACT to amend the insurance law, in relation to standards for  prompt,
          fair  and  equitable settlement of claims for health care and payments
          for health care services
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Subsections (a) and (b) of section 3224-a of the insurance
     2  law, as amended by chapter 666 of the laws of 1997, are amended to  read
     3  as follows:
     4    (a)  Except  in a case where the obligation of an insurer or an organ-
     5  ization or corporation licensed or certified pursuant to article  forty-
     6  three  of this chapter or article forty-four of the public health law to
     7  pay a claim submitted by a policyholder or  person  covered  under  such

     8  policy  or  make  a  payment to a health care provider is not reasonably
     9  clear, or when there is a reasonable basis supported by specific  infor-
    10  mation  available  for  review  by the superintendent that such claim or
    11  bill for health care services rendered was submitted fraudulently,  such
    12  insurer  or organization or corporation shall pay the claim to a policy-
    13  holder or covered person or make a payment to  a  health  care  provider
    14  within  [forty-five]  fifteen  days  of  receipt  of a claim or bill for
    15  services rendered which is transmitted electronically or  within  thirty
    16  days  of  receipt  of  a  claim  or  bill for services rendered which is
    17  submitted by other means, such  as  paper  or  facsimile.  The  insurer,
    18  organization  or  corporation  shall  not  deny  payment for a claim for

    19  medically necessary covered services on the basis of  an  administrative
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03354-02-9

        A. 3167--A                          2
 
     1  or  technical  defect including a failure to obtain a referral; untimely
     2  filing of the claim; late notification of a hospital  admission  or  the
     3  provision  of services that the insurer, organization or corporation may
     4  require;  a  failure  to provide notification of a hospital admission or
     5  provision of services that the insurer, organization or corporation  may

     6  require;  a  failure to provide proper registration of a hospital admis-
     7  sion or provision of services that the insurer, organization  or  corpo-
     8  ration  may  require;  a  failure  to  request proper authorization of a
     9  hospital admission or provision of services that the insurer,  organiza-
    10  tion  or corporation may require; or any other administrative or techni-
    11  cal defect as the superintendent  may  specify  in  a  regulation  after
    12  consultation  with  the  commissioner of health. Nothing in this section
    13  shall preclude a health care provider and a health plan from agreeing to
    14  provisions different from those in this section; provided, however, that
    15  any agreement that purports to waive, limit, disclaim,  or  in  any  way

    16  diminish  the rights of a health care provider set forth in this section
    17  shall be void as contrary to public policy.
    18    (b) In a case where the obligation of an insurer or an organization or
    19  corporation licensed or certified pursuant  to  article  forty-three  of
    20  this  chapter  or  article  forty-four of the public health law to pay a
    21  claim or make a payment for health care services rendered is not reason-
    22  ably clear due to a good faith dispute regarding the  eligibility  of  a
    23  person  for coverage, the liability of another insurer or corporation or
    24  organization for all or part of the claim, the amount of the claim,  the
    25  benefits  covered  under a contract or agreement, or the manner in which
    26  services were accessed or provided, an insurer or organization or corpo-
    27  ration shall pay any undisputed portion of the claim in accordance  with

    28  this  subsection  and  notify  the policyholder, covered person [or] and
    29  health care provider in writing within  fifteen  calendar  days  of  the
    30  receipt of the claim transmitted electronically, or thirty calendar days
    31  of  the  receipt of the claim submitted by other means, such as paper or
    32  facsimile:
    33    (1) that it is not obligated to pay the  claim  or  make  the  medical
    34  payment, stating the specific reasons why it is not liable; or
    35    (2)  to  request  [all]  additional  information  needed  to determine
    36  liability to pay the claim or make the health  care  payment;  provided,
    37  however,  in response to its receipt of a specific claim for services an
    38  insurer, organization or corporation shall not generate and  transmit  a

    39  questionnaire  in order to determine whether the policyholder or covered
    40  person is covered for all or part  of  the  claim  by  another  insurer,
    41  corporation  or  organization.  Nothing  in this section shall otherwise
    42  preclude an insurer, organization or corporation from sending a  coordi-
    43  nation  of  benefit questionnaire to a policyholder or covered person at
    44  another time provided that in no event shall the  insurer,  organization
    45  or  corporation  delay or deny payment of a claim when a policyholder or
    46  covered person does not complete and return such coordination  of  bene-
    47  fits questionnaire.
    48    Upon  receipt  of  the  information requested in paragraph two of this
    49  subsection or an appeal of a claim or  bill  for  health  care  services

    50  denied  pursuant  to  paragraph  one  of  this subsection, an insurer or
    51  organization or corporation licensed or certified  pursuant  to  article
    52  forty-three  of  this chapter or article forty-four of the public health
    53  law shall comply with subsection (a) of this section.
    54    § 2. Subsection (b) of section 3224-b of the insurance law,  as  added
    55  by chapter 551 of the laws of 2006, is amended to read as follows:

        A. 3167--A                          3
 
     1    (b) Overpayments to [physicians] health care providers. (1) Other than
     2  recovery  for  duplicate  payments,  a health plan shall provide [thirty
     3  days] written notice to [physicians before engaging in additional  over-
     4  payment recovery efforts seeking] health care providers of its intention

     5  to  seek  recovery  of  the  overpayment  of claims to such [physicians]
     6  health care providers. Such notice shall state the patient name, service
     7  date, payment amount, proposed adjustment,  and  a  reasonably  specific
     8  explanation  of  the  proposed  adjustment. A health plan shall not seek
     9  recovery from a health care provider unless: the  health  care  provider
    10  agrees  to  the  recovery  in writing; the health care provider fails to
    11  send its written challenge of the  health  plan's  overpayment  recovery
    12  within  ninety  days  of  receipt of the plan's notice of intent to seek
    13  overpayment recovery;  or  the  overpayment  recovery  has  been  upheld
    14  according  to procedures established by the parties in their contractual

    15  agreement; or a third-party arbitrator upheld the overpayment recovery.
    16    (2) A health plan shall limit overpayment recovery efforts to: billing
    17  and coding errors; incorrect rate payments; ineligibility  of  a  person
    18  for  coverage;  or  fraud.  A health plan shall not initiate overpayment
    19  recovery efforts for utilization review purposes as defined  in  article
    20  forty-nine  of  this  chapter or article forty-nine of the public health
    21  law, if the services were already  deemed  medically  necessary  by  the
    22  health  plan,  or  if  the health plan previously approved the manner in
    23  which services were accessed or provided.
    24    (3) A health plan shall provide a health care provider with the oppor-

    25  tunity to challenge the health plan's overpayment recovery determination
    26  and shall establish written policies and procedures, in accordance  with
    27  this  section,  for  health  care  providers to challenge an overpayment
    28  recovery.  These  written  policies  and  procedures  shall  include   a
    29  provision  stating  that  a health care provider shall have no less than
    30  ninety days from receipt of the health plan's written notice  of  intent
    31  to  seek recovery to provide documentation challenging the alleged over-
    32  payments. Any challenge  to  an  overpayment  recovery  that  cannot  be
    33  resolved  between  the  health  plan and the health care provider within
    34  thirty days from the health plan's receipt of the provider's  documenta-

    35  tion  shall  be  resolved  according  to  procedures  established by the
    36  parties in their contractual agreement or shall be submitted to a third-
    37  party arbitrator for a determination.
    38    (4) A health plan shall not initiate overpayment recovery efforts more
    39  than twenty-four months after the original payment  was  received  by  a
    40  [physician] health care provider.  [Provided, however, that] However, no
    41  such time limit shall apply to overpayment recovery efforts [which] that
    42  are:  (i)  based  on  a  reasonable belief of fraud or other intentional
    43  misconduct, [or abusive billing,] (ii) required by, or initiated at  the
    44  request of, a self-insured plan, or (iii) required by a state or federal

    45  government program. Notwithstanding the aforementioned time limitations,
    46  in  the  event  that  a  [physician] health care provider asserts that a
    47  health plan has underpaid a claim or claims, the health plan may  defend
    48  or  set  off  such assertion of underpayment based on overpayments going
    49  back in time as far as the claimed underpayment. [For purposes  of  this
    50  paragraph,  "abusive  billing"  shall  be  defined as a billing practice
    51  which results in the submission of claims that are not  consistent  with
    52  sound  fiscal,  business, or medical practices and at such frequency and
    53  for such a period of time as to reflect a consistent course of conduct.
    54    (3)] (5) Nothing in this section shall be deemed to limit  [an  insur-

    55  er's]  a  health  plan's  right  to pursue recovery of overpayments that
    56  occurred prior to the effective date of this section where  the  insurer

        A. 3167--A                          4
 
     1  has  provided  the  [physician] health care provider with notice of such
     2  recovery efforts prior to the effective date of this section.
     3    (6)  A  health  plan  shall  not  pursue  overpayment recovery efforts
     4  against an insured if the health plan is precluded from  pursuing  over-
     5  payment  recovery  efforts  against  a  health care provider pursuant to
     6  paragraph two of this subsection.
     7    (7) A health plan shall assure adherence to the requirements stated in
     8  this section by all contractors, subcontractors, subvendors, agents  and

     9  employees affiliated by contract or otherwise with such licensed entity.
    10  All contractors, subcontractors, subvendors, agents and employees affil-
    11  iated by contract or otherwise with any health plan shall also adhere to
    12  the requirements of this section.
    13    (8)  Nothing in this section shall preclude a health care provider and
    14  a health plan from agreeing to provisions different from those  in  this
    15  section;  provided,  however, that any agreement that purports to waive,
    16  limit, disclaim, or in any way diminish the  rights  of  a  health  care
    17  provider  set  forth in this section shall be void as contrary to public
    18  policy.
    19    (9) Health care provider shall mean an entity  licensed  or  certified

    20  pursuant  to  article  twenty-eight,  thirty-six  or forty of the public
    21  health law, a facility licensed pursuant to  article  nineteen,  twenty-
    22  three or thirty-one of the mental hygiene law, and a health care profes-
    23  sional  licensed, registered or certified pursuant to title eight of the
    24  education law.
    25    § 3. The insurance law is amended by adding a new section 3240 to read
    26  as follows:
    27    § 3240. Coverage of services of participating  providers.  An  insurer
    28  licensed to write accident and health insurance, a corporation organized
    29  pursuant  to  article  forty-three  of  this chapter, health maintenance
    30  organizations and other  organizations  certified  pursuant  to  article

    31  forty-four  of  the  public health law or a municipal cooperative health
    32  benefits plan certified pursuant to article forty-seven of this  chapter
    33  (collectively  a "health plan") that utilizes a network of participating
    34  providers in the delivery and provision  of  health  insurance  benefits
    35  shall not deem a health care provider who is participating in the health
    36  plan's  provider  network  and rendering medical services to an insured,
    37  subscriber or enrollee to be out-of-network because one  or  more  other
    38  health providers rendering services to the insured, subscriber or enrol-
    39  lee  for  the  same or related medical condition, illness or injury does
    40  not participate in the health  plan's  provider  network.  The  insured,

    41  subscriber  or  enrollee  shall  only  be subject to the in-network cost
    42  sharing provisions of the policy or certificate for the services of such
    43  participating provider or providers. Further, the health plan shall  pay
    44  a  participating  health  care provider or providers the contracted rate
    45  for services  provided  by  such  participating  provider  or  providers
    46  regardless  of  the  network  status of the other providers. Health care
    47  provider shall mean an entity licensed or certified pursuant to  article
    48  twenty-eight,  thirty-six  or forty of the public health law, a facility
    49  licensed pursuant to article nineteen, twenty-three or thirty-one of the
    50  mental hygiene law, and a health care professional licensed,  registered

    51  or certified pursuant to title eight of the education law.
    52    §  4.  Section  2406  of  the insurance law is amended by adding a new
    53  subsection (a-1) to read as follows:
    54    (a-1) (1) If, after completion of an investigation involving  informa-
    55  tion  collected  from a six month period, notice and hearing, the super-
    56  intendent finds that the person complained of has engaged in a series of

        A. 3167--A                          5
 
     1  acts prohibited by section three thousand two hundred  twenty-four-a  of
     2  this  chapter  that,  taken together, constitute a consistent pattern or
     3  practice, the superintendent is  authorized  to  levy  a  civil  penalty
     4  against such person in the following manner:

     5    (A)  For  the  first  finding of a consistent pattern or practice, the
     6  superintendent may levy a fine of not more  than  one  hundred  thousand
     7  dollars.
     8    (B)  For  a  second  finding  of a consistent pattern or practice that
     9  occurs on or earlier than two years from the first  offense  the  super-
    10  intendent  may  levy  a  fine  of  not  more than three hundred thousand
    11  dollars.
    12    (C) For a third finding of  a  consistent  pattern  or  practice  that
    13  occurs  on  or earlier than five years after a first offense, the super-
    14  intendent may levy a fine of not more than one million dollars.
    15    (2) In determining the amount of a fine to be levied within the speci-
    16  fied limits, the superintendent shall consider the following factors:

    17    (A) the extent and frequency of the violations;
    18    (B) whether the violations were due to circumstances beyond the insur-
    19  er, organization or corporation's control;
    20    (C) any remedial actions taken by the insurer, organization or  corpo-
    21  ration to prevent future violations;
    22    (D)  the  actual  or  potential  harm  to  others  resulting  from the
    23  violations;
    24    (E) if the insurer, organization or corporation knowingly and willing-
    25  ly committed the violations;
    26    (F) the insurer, organization or  corporation's  financial  condition;
    27  and
    28    (G) any other factors the superintendent considers appropriate.
    29    § 5. This act shall take effect immediately.
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