2013 New York Consolidated Laws
PBH - Public Health
Article 44 - (4400 - 4414) HEALTH MAINTENANCE ORGANIZATIONS
4403 - Health maintenance organizations; issuance of certificate of authority.

 
    §  4403.  Health maintenance organizations; issuance of certificate of
  authority.  1.  The  commissioner  shall  not  issue  a  certificate  of
  authority  to  an  applicant  therefor unless the applicant demonstrates
  that:
    (a) it has defined a proposed enrolled population to which the  health
  maintenance   organization  proposes  to  provide  comprehensive  health
  services and has established a mechanism by which  that  population  may
  advise in determining the policies of the organization;
    (b)   it  has  the  capability  of  organizing,  marketing,  managing,
  promoting and operating a comprehensive health services plan;
    (c) it is financially responsible and may  be  expected  to  meet  its
  obligations  to its enrolled members. For the purpose of this paragraph,
  "financially responsible" means that the  applicant  shall  assume  full
  financial risk on a prospective basis for the provision of comprehensive
  health  services, including hospital care and emergency medical services
  within the area served by the plan, except that it may require providers
  to share financial risk under the terms of their contract, it  may  have
  financial  incentive  arrangements  with  providers  or  it  may  obtain
  insurance  or  make  other  arrangements  for  the  cost  of   providing
  comprehensive  health  services  to  enrollees;  any  insurance or other
  arrangement required by this paragraph shall be approved as to  adequacy
  by  the  superintendent  as  a  prerequisite  to  the  issuance  of  any
  certificate of authority by the commissioner;
    (d) the character, competence, and standing in the  community  of  the
  proposed   incorporators,   directors,  sponsors  or  stockholders,  are
  satisfactory to the commissioner;
    (e) the prepayment mechanism  of  its  comprehensive  health  services
  plan, the bases upon which providers of health care are compensated, and
  the  anticipated use of allied health personnel are conducive to the use
  of ambulatory care and the efficient use of hospital services;
    (f) acceptable procedures have been established to monitor the quality
  of care provided by the plan, which, in the case of services provided by
  non-participating providers,  shall  be  limited  to  the  provision  of
  reports to the primary care practitioner responsible for supervising and
  coordinating the care of the enrollee;
    (g)  approved  mechanisms  exist  to resolve complaints and grievances
  initiated by any enrolled member; and
    (h) the contract between the enrollee and the  organization  meet  the
  requirements  of  the  superintendent as set forth in section forty-four
  hundred six of this article, as to the provisions contained therein  for
  health  services,  the procedures for offering, renewing, converting and
  terminating contracts to enrollees, and the  rates  for  such  contracts
  including  but not limited to, compliance with the provisions of section
  one thousand one hundred nine of the insurance law.
    2. The commissioner may adopt and amend rules and regulations pursuant
  to the state administrative procedure act to effectuate the purposes and
  provisions of this article.  Such  regulations  may  include  rules  and
  procedures  addressing  the  provision  of emergency services, including
  patient notification, obtaining authorization for treatment, transfer of
  patients from one  facility  to  another  and  emergency  transportation
  arrangements.
    3.  Nothing  contained  in  this  section shall preclude any person or
  persons in developing a health maintenance organization from  contacting
  potential   participants  to  discuss  the  health  care  services  such
  organization would offer, prior to the  granting  of  a  certificate  of
  authority.
    4.  Nothing  in  this  article  shall  preclude any health maintenance
  organization from meeting the requirements  of  any  federal  law  which

  would  authorize such health maintenance organization to receive federal
  financial assistance or  which  would  authorize  enrollees  to  receive
  assistance from federal funds.
    5.  (a)  The  commissioner, at the time of initial licensure, at least
  every three years thereafter, and  upon  application  for  expansion  of
  service  area,  shall  ensure  that  the health maintenance organization
  maintains a network of  health  care  providers  adequate  to  meet  the
  comprehensive   health   needs  of  its  enrollees  and  to  provide  an
  appropriate choice of  providers  sufficient  to  provide  the  services
  covered under its enrollee's contracts by determining that (i) there are
  a   sufficient   number   of   geographically  accessible  participating
  providers; (ii) there are opportunities to select from  at  least  three
  primary  care  providers pursuant to travel and distance time standards,
  providing that such standards account for the  conditions  of  accessing
  providers  in  rural areas; (iii) there are sufficient providers in each
  area  of  specialty  practice  to  meet  the  needs  of  the  enrollment
  population;  (iv)  there  is  no exclusion of any appropriately licensed
  type of provider as a class; and (v) contracts entered into with  health
  care providers neither transfer financial risk to providers, in a manner
  inconsistent  with the provisions of paragraph (c) of subdivision one of
  this section, nor penalize providers for unfavorable case mix so  as  to
  jeopardize  the quality of or enrollees' appropriate access to medically
  necessary  services;  provided,  however,  that  payment  at  less  than
  prevailing  fee  for  service rates or capitation shall not be deemed or
  presumed prima facie to jeopardize quality or access.
    (b) The following criteria shall be considered by the commissioner  at
  the  time  of  a  review: (i) the availability of appropriate and timely
  care that is provided in compliance with the standards  of  the  Federal
  Americans  with  Disability  Act to assure access to health care for the
  enrollee population; (ii) the network's ability  to  provide  culturally
  and  linguistically  competent  care  to  meet the needs of the enrollee
  population; and (iii) with  the  exception  of  initial  licensure,  the
  number  of  grievances  filed by enrollees relating to waiting times for
  appointments, appropriateness of referrals and other indicators of  plan
  capacity.
    (c)  Each  organization  shall report on an annual basis the number of
  enrollees  and  the  number   of   participating   providers   in   each
  organization.
    6.  (a)  If  a health maintenance organization determines that it does
  not have a health care provider with appropriate training and experience
  in its panel or network to meet the particular health care needs  of  an
  enrollee,  the  health maintenance organization shall make a referral to
  an appropriate provider, pursuant to a treatment plan  approved  by  the
  health  maintenance  organization  in consultation with the primary care
  provider, the non-participating provider and the enrollee or  enrollee's
  designee, at no additional cost to the enrollee beyond what the enrollee
  would otherwise pay for services received within the network.
    (b)  A health maintenance organization shall have a procedure by which
  an enrollee who needs ongoing care  from  a  specialist  may  receive  a
  standing   referral  to  such  specialist.  If  the  health  maintenance
  organization, or the primary care  provider  in  consultation  with  the
  medical  director  of the organization and specialist if any, determines
  that such a standing referral is  appropriate,  the  organization  shall
  make  such  a  referral  to  a  specialist.  In  no event shall a health
  maintenance organization be required to permit an enrollee to  elect  to
  have  a non- participating specialist, except pursuant to the provisions
  of paragraph (a) of this subdivision. Such referral shall be pursuant to
  a treatment plan approved by  the  health  maintenance  organization  in

  consultation  with  the  primary  care provider, the specialist, and the
  enrollee or the enrollee's designee. Such treatment plan may  limit  the
  number  of  visits or the period during which such visits are authorized
  and may require the specialist to provide the primary care provider with
  regular updates on the specialty care provided, as well as all necessary
  medical information.
    (c)  A health maintenance organization shall have a procedure by which
  a new enrollee upon enrollment, or an enrollee upon diagnosis, 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 receive a referral to
  a  specialist  with  expertise  in  treating  the  life-threatening   or
  degenerative and disabling disease or condition who shall be responsible
  for and capable of providing and coordinating the enrollee's primary and
  specialty  care. If the health maintenance organization, or primary care
  provider in consultation with a medical director of the organization and
  a specialist, if any, determines that the  enrollee's  care  would  most
  appropriately  be  coordinated  by  such  a specialist, the organization
  shall refer the enrollee to such specialist. In no event shall a  health
  maintenance  organization  be required to permit an enrollee to elect to
  have a non-participating specialist, except pursuant to  the  provisions
  of paragraph (a) of this subdivision. Such referral shall be pursuant to
  a  treatment  plan  approved  by the health maintenance organization, in
  consultation  with  the  primary  care  provider  if  appropriate,   the
  specialist, and the enrollee or the enrollee's designee. Such specialist
  shall  be  permitted  to  treat the enrollee without a referral from the
  enrollee's primary care  provider  and  may  authorize  such  referrals,
  procedures,  tests  and other medical services as the enrollee's primary
  care provider would otherwise be  permitted  to  provide  or  authorize,
  subject to the terms of the treatment plan. If an organization refers an
  enrollee  to a non-participating provider, services provided pursuant to
  the approved treatment plan shall be provided at no additional  cost  to
  the  enrollee  beyond what the enrollee would otherwise pay for services
  received within the network.
    (d) A health maintenance organization shall have a procedure by  which
  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
  receive a referral to a specialty care center with expertise in treating
  the life-threatening or degenerative and disabling disease or condition.
  If the health maintenance organization, or the primary care provider  or
  the specialist designated pursuant to paragraph (c) of this subdivision,
  in  consultation with a medical director of the organization, determines
  that the enrollee's care would most appropriately be provided by such  a
  specialty care center, the organization shall refer the enrollee to such
  center.  In no event shall a health maintenance organization be required
  to permit an enrollee to elect to  have  a  non-participating  specialty
  care  center,  unless  the  organization  does  not  have an appropriate
  specialty care center to  treat  the  enrollee's  disease  or  condition
  within  its network. Such referral shall be pursuant to a treatment plan
  developed by the specialty  care  center  and  approved  by  the  health
  maintenance   organization,   in  consultation  with  the  primary  care
  provider, if any, or a specialist designated pursuant to paragraph c  of
  this  subdivision,  and  the  enrollee or the enrollee's designee. If an
  organization refers an enrollee to a specialty care center that does not
  participate in the organization's network, services provided pursuant to
  the approved treatment plan shall be provided at no additional  cost  to
  the  enrollee  beyond what the enrollee would otherwise pay for services

  received within the network. For purposes of this paragraph, a specialty
  care center shall mean only such centers as are accredited or designated
  by an agency of the state  or  federal  government  or  by  a  voluntary
  national health organization as having special expertise in treating the
  life-threatening  disease  or  condition  or  degenerative and disabling
  disease or condition for which it is accredited or designated.
    (e) (1) If an  enrollee's  health  care  provider  leaves  the  health
  maintenance  organization's  network of providers for reasons other than
  those for which the provider would not be eligible to receive a  hearing
  pursuant to paragraph a of subdivision two of section forty-four hundred
  six-d  of this chapter, the health maintenance organization shall permit
  the enrollee to  continue  an  ongoing  course  of  treatment  with  the
  enrollee's  current health care provider during a transitional period of
  (i) up to ninety days from the date of notice to  the  enrollee  of  the
  provider's  disaffiliation  from  the organization's network; or (ii) if
  the enrollee has entered the second trimester of pregnancy at  the  time
  of  the  provider's  disaffiliation,  for  a  transitional  period  that
  includes the provision of  post-partum  care  directly  related  to  the
  delivery.
    (2)  Notwithstanding  the  provisions  of  subparagraph  one  of  this
  paragraph, such care shall  be  authorized  by  the  health  maintenance
  organization  during  the  transitional  period  only if the health care
  provider agrees (i) to continue to accept reimbursement from the  health
  maintenance  organization  at the rates applicable prior to the start of
  the transitional period as payment  in  full;  (ii)  to  adhere  to  the
  organization's  quality  assurance  requirements  and  to provide to the
  organization necessary medical information related  to  such  care;  and
  (iii) to otherwise adhere to the organization's policies and procedures,
  including   but  not  limited  to  procedures  regarding  referrals  and
  obtaining  pre-authorization  and  a  treatment  plan  approved  by  the
  organization.
    (f)  If  a  new enrollee whose health care provider is not a member of
  the health maintenance organization's provider network  enrolls  in  the
  health  maintenance  organization,  the  organization  shall  permit the
  enrollee to continue an ongoing course of treatment with the  enrollee's
  current health care provider during a transitional period of up to sixty
  days  from  the  effective date of enrollment, if (i) the enrollee has a
  life-threatening disease or condition or a  degenerative  and  disabling
  disease  or  condition  or  (ii)  the  enrollee  has  entered the second
  trimester of pregnancy at the effective date  of  enrollment,  in  which
  case  the transitional period shall include the provision of post-partum
  care directly related to the delivery. If an enrollee elects to continue
  to receive  care  from  such  health  care  provider  pursuant  to  this
  paragraph,  such  care  shall  be  authorized  by the health maintenance
  organization for  the  transitional  period  only  if  the  health  care
  provider  agrees (A) to accept reimbursement from the health maintenance
  organization at rates established by the health maintenance organization
  as payment in full, which rates shall be  no  more  than  the  level  of
  reimbursement   applicable   to  similar  providers  within  the  health
  maintenance organization's network for such services; (B) to  adhere  to
  the  organization's quality assurance requirements and agrees to provide
  to the organization necessary medical information related to such  care;
  and   (C)  to  otherwise  adhere  to  the  organization's  policies  and
  procedures including, but not limited to procedures regarding  referrals
  and  obtaining  pre-authorization  and  a treatment plan approved by the
  organization. In no event shall this paragraph be construed to require a
  health maintenance organization to provide  coverage  for  benefits  not

  otherwise  covered  or  to  diminish  or  impair  pre-existing condition
  limitations contained within the subscriber's contract.
    7.  A  health  maintenance  organization that requires or provides for
  designation by an enrollee of  a  participating  primary  care  provider
  shall  permit  the  enrollee to designate any participating primary care
  provider who is available to accept such individual, and in the case  of
  a  child, shall permit the enrollee to designate a physician (allopathic
  or osteopathic) who specializes in pediatrics  as  the  child's  primary
  care provider if such provider participates in the network of the health
  maintenance organization.
    * 8.  Notwithstanding  any  provision of law to the contrary, a health
  maintenance organization may expand its  comprehensive  health  services
  plan  to  include  services  operated,  certified, funded, authorized or
  approved by the  office  for  people  with  developmental  disabilities,
  including   habilitation   services  as  defined  in  paragraph  (c)  of
  subdivision one of section forty-four hundred three-g of  this  article,
  and  may  offer  such  expanded  plan  to  a  population of persons with
  developmental disabilities, as  such  term  is  defined  in  the  mental
  hygiene law, subject to the following:
    (a)  Such  organization must have the ability to provide or coordinate
  services for persons with developmental disabilities, as demonstrated by
  criteria to be determined by the commissioner and  the  commissioner  of
  the  office  for  people  with developmental disabilities. Such criteria
  shall include, but not be limited to, adequate experience  providing  or
  coordinating services for persons with developmental disabilities.
    (a-1)  If  the  commissioner  and  the  commissioner of the office for
  people with developmental disabilities determine that such  organization
  lacks  the experience required in paragraph (a) of this subdivision, the
  organization shall have an affiliation arrangement  with  an  entity  or
  entities with experience serving persons with developmental disabilities
  such  that  the  affiliated  entity  will  coordinate  and plan services
  operated, certified, funded, authorized or approved by  the  office  for
  people  with developmental disabilities or will oversee and approve such
  coordination and planning;
    (a-2)  Each  enrollee  shall  receive  services  designed  to  achieve
  person-centered  outcomes,  to  enable  that  person to live in the most
  integrated setting appropriate to that person's  needs,  and  to  enable
  that  person  to interact with nondisabled persons to the fullest extent
  possible in social, workplace and  other  community  settings,  provided
  that  all  such services are consistent with such person's wishes to the
  extent that such wishes are  known  and  the  individual's  needs.  With
  respect  to  an  individual receiving non-residential services operated,
  certified, funded, authorized or approved by the office for people  with
  developmental disabilities prior to enrollment in the organization, such
  guidelines  shall  require the organization to contract with the current
  provider of such non-residential services at the  rates  established  by
  the  office for ninety days, in order to ensure continuity of care. With
  respect to an individual living in a residential  facility  operated  or
  certified by the office for people with developmental disabilities prior
  to  enrollment in the organization, the organization shall contract with
  the provider of residential services for that  residence  at  the  rates
  established by the office for people with developmental disabilities for
  so  long  as such person lives in that residence pursuant to an approved
  plan of care;
    (b)  The  provision  by  such  organization  of   services   operated,
  certified,  funded, authorized or approved by the office for people with
  developmental disabilities shall be subject to the joint  oversight  and
  review   of   both  the  department  and  the  office  for  people  with

  developmental disabilities. The department and such office shall require
  such  organization  to  provide  comprehensive  care  planning,   assess
  quality,  meet quality assurance requirements and ensure the enrollee is
  involved in care planning.
    (c)  Such  organization  shall  not  provide  or  arrange for services
  operated, certified, funded, authorized or approved by  the  office  for
  people  with  developmental  disabilities until the commissioner and the
  commissioner of the office for people  with  developmental  disabilities
  approve  program  features  and  rates  that  include such services, and
  determine  that  such  organization  meets  the  requirements  of   this
  paragraph  and  any  other requirements set forth by the commissioner of
  the office for people with developmental disabilities;
    (d) An otherwise eligible  enrollee  receiving  services  through  the
  organization   that  are  operated,  certified,  funded,  authorized  or
  approved by the office for people with developmental disabilities  shall
  not  be  involuntarily  disenrolled  from  such organization without the
  prior approval of  the  commissioner  of  the  office  for  people  with
  developmental disabilities. Notice shall be provided to the enrollee and
  the enrollee may request a fair hearing regarding such disenrollment;
    (e)  The  office  for  people  with  developmental  disabilities shall
  determine the eligibility of individuals  receiving  services  operated,
  certified,  funded,  authorized  or approved by such office to enroll in
  such a plan and shall enroll individuals it determines  eligible  in  an
  organization   chosen  by  such  individual,  guardian  or  other  legal
  representative;
    (f) The office for people  with  developmental  disabilities,  or  its
  designee,  shall  complete a comprehensive assessment for enrollees that
  receive services operated, certified, funded, authorized or approved  by
  such  office.  This  assessment shall include, but not be limited to, an
  evaluation of the medical, social, habilitative and environmental  needs
  of  each  prospective  enrollee  as such needs relate to such enrollee's
  health, safety, living environment and wishes, to the extent such wishes
  are known. This assessment  shall  also  serve  as  the  basis  for  the
  development  and  provision  of  an  appropriate  plan  of  care for the
  enrollee. Such plan of care shall  be  focused  on  the  achievement  of
  person-centered  outcomes  and  shall be consistent with and help inform
  any  other  person-centered  plan  required  for  the  enrollee  by  the
  commissioner  of  the office for people with developmental disabilities.
  The initial assessment shall be completed by such office or its designee
  other than the organization and shall be completed, in consultation with
  the  prospective  enrollee's  health  care  practitioner  as  necessary.
  Reassessments  shall  be  completed by the office or its designee, which
  may be the organization. The commissioner of the office for people  with
  developmental  disabilities  shall  prescribe  the  forms  on  which the
  assessment shall be made.
    (f-1) Such organization shall provide the department  and  the  office
  for  people  with  developmental  disabilities with a description of the
  proposed marketing plan and how marketing materials will be presented to
  persons with developmental disabilities  or  their  authorized  decision
  makers for the purposes of enabling them to make an informed choice.
    (g)  No  person  with  a developmental disability shall be required to
  enroll in a  comprehensive  health  services  plan  as  a  condition  of
  receiving  medical  assistance and services operated, certified, funded,
  authorized or approved by  the  office  for  people  with  developmental
  disabilities until program features and reimbursement rates are approved
  by  the  commissioner and the commissioner of the office for people with
  developmental disabilities and until such commissioners  determine  that
  there are a sufficient number of plans authorized to coordinate care for

  persons   with  developmental  disabilities  pursuant  to  this  article
  operating in the person's county of  residence  to  meet  the  needs  of
  persons  with  developmental  disabilities, and that such plans meet the
  standards of this section.
    (h)  Organizations  providing  services  operated,  certified, funded,
  authorized or approved by  the  office  for  people  with  developmental
  disabilities  shall  be subject to all requirements applicable to DISCOs
  operating under section forty-four hundred three-g of this article  with
  respect  to  quality assurance, grievances and appeals, informed choice,
  participating in development of plans  of  care  and  requirements  with
  respect  to  marketing,  to  the  extent  that such requirements are not
  inconsistent with this section.
    (i) The provisions of this subdivision shall only be effective if, for
  so long as, and to the extent that federal  financial  participation  is
  available  for the costs of services provided hereunder to recipients of
  medical assistance pursuant to title  eleven  of  article  five  of  the
  social   services   law.  The  commissioner  shall  make  any  necessary
  amendments to the state plan for medical assistance  submitted  pursuant
  to  section  three  hundred  sixty-three-a  of  the social services law,
  and/or submit one or more applications for waivers of the federal social
  security act, as may be  necessary  to  ensure  such  federal  financial
  participation. To the extent that the provisions of this subdivision are
  inconsistent   with  other  provisions  of  this  article  or  with  the
  provisions of section three hundred sixty-four-j of the social  services
  law, the provisions of this subdivision shall prevail.
    * NB Repealed September 30, 2019