Bill Text: NY A02393 | 2019-2020 | General Assembly | Introduced

Bill Title: Enacts provisions relating to collective negotiations by health care providers with certain health care plans in certain counties; applies to health benefit plans that provide benefits for medical or surgical expenses incurred as a result of a health condition, accident or sickness, including an individual, group, blanket or franchise insurance policy or insurance agreement offered by certain enumerated entities.

Spectrum: Moderate Partisan Bill (Democrat 59-7)

Status: (Introduced) 2019-05-07 - reported referred to ways and means [A02393 Detail]

Download: New_York-2019-A02393-Introduced.html

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 22, 2019
        Introduced  by  M.  of  A. GOTTFRIED, CAHILL, COLTON, MAGNARELLI, GALEF,
          --  Multi-Sponsored  by  --  M.  of  A.  ABBATE,  ARROYO,  BRAUNSTEIN,
          RICHARDSON -- read once and referred to the Committee on Health
        AN ACT to amend the public health law, in relation to  requirements  for
          collective  negotiations  by health care providers with certain health
          benefit plans
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. Statement of legislative intent. The legislature finds that
     2  collective  negotiation by competing health care providers for the terms
     3  and conditions of contracts with health plans can result  in  beneficial
     4  results  for  health  care  consumers.  The  legislature  further  finds
     5  instances where health plans dominate the market to such a  degree  that
     6  fair  and  adequate  negotiations  between health care providers and the
     7  plans are adversely affected, so that it is necessary and appropriate to
     8  provide for a system of collective  action  on  behalf  of  health  care
     9  providers. Consequently, the legislature finds it appropriate and neces-
    10  sary  to  displace  competition  with regulation of health plan-provider
    11  agreements and authorize collective negotiations on the terms and condi-
    12  tions of the relationship between health  care  plans  and  health  care
    13  providers  so  the imbalances between the two will not result in adverse
    14  conditions of health care. This act is  not  intended  to  apply  to  or
    15  affect  in  any  respect collective bargaining relationships which arise
    16  under applicable federal or state collective bargaining statutes.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 2393                             2
     1    § 2. This act shall be known and may be  cited  as  the  "health  care
     2  consumer and provider protection act".
     3    §  3.  Article  49 of the public health law is amended by adding a new
     4  title III to read as follows:
     5                                  TITLE III
     7                      PROVIDERS WITH HEALTH CARE PLANS
     8  Section 4920. Definitions.
     9          4921. Non-fee related collective negotiation authorized.
    10          4922. Fee related collective negotiation.
    11          4923. Collective negotiation requirements.
    12          4924. Requirements for health care providers' representative.
    13          4925. Certain collective action prohibited.
    14          4926. Fees.
    15          4927. Monitoring of agreements.
    16          4928. Confidentiality.
    17          4929. Severability and construction.
    18    § 4920. Definitions. For purposes of this title:
    19    1. "Health care plan" means  an  entity  (other  than  a  health  care
    20  provider) that approves, provides, arranges for, or pays for health care
    21  services, including but not limited to:
    22    (a)  a  health  maintenance  organization licensed pursuant to article
    23  forty-three of the  insurance  law  or  certified  pursuant  to  article
    24  forty-four of this chapter;
    25    (b) any other organization certified pursuant to article forty-four of
    26  this chapter; or
    27    (c) an insurer or corporation subject to the insurance law.
    28    2.  "Person"  means  an  individual,  association, corporation, or any
    29  other legal entity.
    30    3. "Health care providers' representative" means a third party who  is
    31  authorized  by  health  care providers to negotiate on their behalf with
    32  health care plans over contractual terms and conditions affecting  those
    33  health care providers.
    34    4. "Strike" means a work stoppage in part or in whole, direct or indi-
    35  rect, by a health care provider or health care providers to gain compli-
    36  ance with demands made on a health care plan.
    37    5.  "Substantial  market  share in a business line" exists if a health
    38  care plan's market share of a business line within the  geographic  area
    39  for  which a negotiation has been approved by the commissioner, alone or
    40  in combination with the market shares of affiliates, exceeds either  ten
    41  percent  of  the  total number of covered lives in that service area for
    42  such business line or twenty-five thousand lives, or if the commissioner
    43  determines the market share of the insurer  in  the  relevant  insurance
    44  product and geographic markets for the services of the providers seeking
    45  to  collectively  negotiate  significantly  exceeds  the  countervailing
    46  market share of the providers acting individually.
    47    6. "Health care provider" means a person who is  licensed,  certified,
    48  registered  or  authorized  pursuant to title eight of the education law
    49  and who practices that profession as a health care provider as an  inde-
    50  pendent  contractor  and/or  who  is  an owner, officer, shareholder, or
    51  proprietor of a health care provider,  or  an  entity  that  employs  or
    52  utilizes  health care providers to provide health care services, includ-
    53  ing but not limited to a hospital licensed under article twenty-eight of
    54  this chapter or an accountable care organization under  article  twenty-
    55  nine-E  of  this chapter; or an entity authorized under articles thirty-
    56  six or forty of this chapter; or a fiscal intermediary operating  pursu-

        A. 2393                             3
     1  ant to section three hundred sixty-five-f of the social services law.  A
     2  health  care  provider  under title eight of the education law who prac-
     3  tices as an employee of a health care provider shall  not  be  deemed  a
     4  health care provider for purposes of this title.
     5    §  4921.  Non-fee related collective negotiation authorized. 1. Health
     6  care providers practicing within the geographic area for which a negoti-
     7  ation has been approved by the commissioner may meet and communicate for
     8  the purpose of collectively negotiating the following terms  and  condi-
     9  tions of provider contracts with the health care plan:
    10    (a)  the details of the utilization review plan as defined pursuant to
    11  subdivision ten of  section  forty-nine  hundred  of  this  article  and
    12  subsection  (j)  of  section four thousand nine hundred of the insurance
    13  law;
    14    (b) coverage  provisions;  health  care  benefits;  benefit  maximums,
    15  including benefit limitations; and exclusions of coverage;
    16    (c) the definition of medical necessity;
    17    (d)  the  clinical  practice guidelines used to make medical necessity
    18  and utilization review determinations;
    19    (e) preventive care and other medical management practices;
    20    (f) drug formularies and  standards  and  procedures  for  prescribing
    21  off-formulary drugs;
    22    (g) respective physician liability for the treatment or lack of treat-
    23  ment of covered persons;
    24    (h)  the  details  of health care plan risk transfer arrangements with
    25  providers;
    26    (i) plan administrative procedures, including methods  and  timing  of
    27  health care provider payment for services;
    28    (j)  procedures  to be utilized to resolve disputes between the health
    29  care plan and health care providers;
    30    (k) patient referral procedures including, but not limited  to,  those
    31  applicable to out-of-network referrals;
    32    (l) the formulation and application of health care provider reimburse-
    33  ment procedures;
    34    (m) quality assurance programs;
    35    (n)  the  process  for  rendering  utilization  review  determinations
    36  including: establishment of a process for rendering  utilization  review
    37  determinations which shall, at a minimum, include: written procedures to
    38  assure  that utilization reviews and determinations are conducted within
    39  the timeframes established in this  article;  procedures  to  notify  an
    40  enrollee,  an  enrollee's  designee  and/or  an  enrollee's  health care
    41  provider of adverse determinations; and procedures for appeal of adverse
    42  determinations, including the  establishment  of  an  expedited  appeals
    43  process  for denials of continued inpatient care or where there is immi-
    44  nent or serious threat to the health of the enrollee; and
    45    (o) health care provider selection and termination  criteria  used  by
    46  the health care plan.
    47    2. Nothing in this section shall be construed to allow or authorize an
    48  alteration  of  the terms of the internal and external review procedures
    49  set forth in law.
    50    3. Nothing in this section shall be construed to allow a strike  of  a
    51  health  care  plan  by  health  care providers or plans as otherwise set
    52  forth in the laws of this state.
    53    4. Nothing in this section shall be construed to  allow  or  authorize
    54  terms or conditions which would impede the ability of a health care plan
    55  to  obtain or retain accreditation by the national committee for quality
    56  assurance or a similar body.

        A. 2393                             4
     1    § 4922. Fee related collective negotiation. 1. If the health care plan
     2  has substantial market share in a business line in any  geographic  area
     3  for  which  a  negotiation has been approved by the commissioner, health
     4  care providers practicing within that geographic area  may  collectively
     5  negotiate  the  following terms and conditions relating to that business
     6  line with the health care plan:
     7    (a) the fees assessed by the health care plan for services,  including
     8  fees established through the application of reimbursement procedures;
     9    (b)  the  conversion  factors  used  by  the  health  care  plan  in a
    10  resource-based relative value scale reimbursement methodology  or  other
    11  similar  methodology; provided the same are not otherwise established by
    12  state or federal law or regulation;
    13    (c) the amount of any discount granted by the health care plan on  the
    14  fee of health care services to be rendered by health care providers;
    15    (d)  the  dollar  amount  of  capitation  or  fixed payment for health
    16  services rendered by health care providers to health  care  plan  enrol-
    17  lees;
    18    (e)  the  procedure code or other description of a health care service
    19  covered by a payment and  the  appropriate  grouping  of  the  procedure
    20  codes; or
    21    (f) the amount of any other component of the reimbursement methodology
    22  for a health care service.
    23    2.  Nothing  herein  shall be deemed to affect or limit the right of a
    24  health care provider or group of health care providers  to  collectively
    25  petition a government entity for a change in a law, rule, or regulation.
    26    § 4923. Collective negotiation requirements. 1. Collective negotiation
    27  rights granted by this title must conform to the following requirements:
    28    (a)  health  care  providers  may  communicate  with other health care
    29  providers regarding the contractual terms and conditions to  be  negoti-
    30  ated with a health care plan;
    31    (b)  health care providers may communicate with health care providers'
    32  representatives;
    33    (c) a health care providers' representative is the only party  author-
    34  ized  to  negotiate  with health care plans on behalf of the health care
    35  providers as a group;
    36    (d) a health care provider can be bound by the  terms  and  conditions
    37  negotiated by the health care providers' representatives; and
    38    (e)  in  communicating  or negotiating with the health care providers'
    39  representative, a health care plan is entitled to contract with or offer
    40  different contract terms and conditions to individual  competing  health
    41  care providers.
    42    2. A health care providers' representative may not represent more than
    43  thirty percent of the market of health care providers or of a particular
    44  health care provider type or specialty practicing in the geographic area
    45  for  which  a  negotiation  has been approved by the commissioner if the
    46  health care plan covers less than five percent of the actual  number  of
    47  covered  lives of the health care plan in the area, as determined by the
    48  department.
    49    3. Nothing in this section shall be construed to  prohibit  collective
    50  action  on  the  part  of  any health care provider who is a member of a
    51  collective bargaining unit recognized pursuant  to  the  national  labor
    52  relations act.
    53    §  4924.  Requirements  for  health care providers' representative. 1.
    54  Before engaging in collective negotiations with a health  care  plan  on
    55  behalf of health care providers, a health care providers' representative
    56  shall  file  with  the  commissioner,  in  the  manner prescribed by the

        A. 2393                             5
     1  commissioner, information identifying the representative, the  represen-
     2  tative's  plan  of  operation,  and  the  representative's procedures to
     3  ensure compliance with this title.
     4    2.  Before  engaging  in  the collective negotiations, the health care
     5  providers' representative shall also submit to the commissioner for  the
     6  commissioner's approval a report identifying the proposed subject matter
     7  of  the  negotiations  or  discussions with the health care plan and the
     8  efficiencies or benefits expected to be  achieved  through  the  negoti-
     9  ations  for  both  the  providers  and consumers of health services. The
    10  commissioner shall not  approve  the  report  if  the  commissioner,  in
    11  consultation  with  the  superintendent of financial services determines
    12  that the proposed negotiations would exceed the authority granted  under
    13  this title.
    14    3.  The  representative shall supplement the information in the report
    15  on a regular basis or as new information becomes  available,  indicating
    16  that  the  subject  matter of the negotiations with the health care plan
    17  has changed or will change. In no event shall the report  be  less  than
    18  every thirty days.
    19    4. With the advice of the superintendent of financial services and the
    20  attorney  general,  the  commissioner  shall  approve  or disapprove the
    21  report not later than the twentieth day after  the  date  on  which  the
    22  report  is filed. If disapproved, the commissioner shall furnish a writ-
    23  ten explanation of any deficiencies, along with a statement of  specific
    24  proposals for remedial measures to cure the deficiencies. If the commis-
    25  sioner  does  not  so  act  within  the twenty days, the report shall be
    26  deemed approved.
    27    5. A person who acts as a health care providers' representative  with-
    28  out  the approval of the commissioner under this section shall be deemed
    29  to be acting outside the authority granted under this title.
    30    6. Before reporting the results of negotiations  with  a  health  care
    31  plan or providing to the affected health care providers an evaluation of
    32  any  offer made by a health care plan, the health care providers' repre-
    33  sentative shall furnish for approval by the commissioner, before dissem-
    34  ination to the health care providers, a copy of all communications to be
    35  made to the health care providers related to negotiations,  discussions,
    36  and offers made by the health care plan.
    37    7.  A  health  care providers' representative  shall report the end of
    38  negotiations to the commissioner not later than the fourteenth day after
    39  the date of a health care plan decision declining negotiation, canceling
    40  negotiations, or failing to respond to a request for  negotiation.    In
    41  such  instances,  a  health  care  providers' representative may request
    42  intervention from the commissioner to require the health  care  plan  to
    43  participate  in  the  negotiation  pursuant to subdivision eight of this
    44  section.
    45    8. (a) In the event the commissioner determines that an impasse exists
    46  in the negotiations, or in the event a  health  care  plan  declines  to
    47  negotiate,  cancels  negotiations  or  fails to respond to a request for
    48  negotiation, the commissioner shall render assistance as follows:
    49    (1) to assist the parties to effect  a  voluntary  resolution  of  the
    50  negotiations,  the  commissioner shall appoint a mediator from a list of
    51  qualified persons maintained by the commissioner.  If  the  mediator  is
    52  successful  in  resolving  the  impasse, then the health care providers'
    53  representative shall proceed as set forth in this article;
    54    (2) if an impasse continues, the commissioner shall  appoint  a  fact-
    55  finding  board  of  not more than three members from a list of qualified
    56  persons maintained by the commissioner, which fact-finding  board  shall

        A. 2393                             6
     1  have,  in addition to the powers delegated to it by the board, the power
     2  to make recommendations for the resolution of the dispute;
     3    (b) The fact-finding board, acting by a majority of its members, shall
     4  transmit  its findings of fact and recommendations for resolution of the
     5  dispute to the commissioner, and may thereafter assist  the  parties  to
     6  effect  a  voluntary  resolution  of the dispute. The fact-finding board
     7  shall also share its findings  of  fact  and  recommendations  with  the
     8  health care providers' representative and the health care plan. If with-
     9  in  twenty  days after the submission of the findings of fact and recom-
    10  mendations, the impasse continues, the commissioner shall order a resol-
    11  ution  to  the  negotiations  based  upon  the  findings  of  fact   and
    12  recommendations submitted by the fact-finding board.
    13    9.  Any  proposed agreement between health care providers and a health
    14  care plan negotiated pursuant to this title shall be  submitted  to  the
    15  commissioner  for  final  approval.  The  commissioner  shall approve or
    16  disapprove the agreement within sixty days of such submission.
    17    10. The commissioner may collect information  from  other  persons  to
    18  assist  in  evaluating  the  impact  of  the proposed arrangement on the
    19  health care marketplace. The commissioner shall collect information from
    20  health plan companies and health care providers operating  in  the  same
    21  geographic area.
    22    §  4925.  Certain  collective  action prohibited. 1. This title is not
    23  intended to authorize competing health care providers to act in  concert
    24  in  response  to a report issued by the health care providers' represen-
    25  tative related to the representative's discussions or negotiations  with
    26  health care plans.
    27    2. No health care providers' representative shall negotiate any agree-
    28  ment  that  excludes,  limits  the participation or reimbursement of, or
    29  otherwise limits the scope of services to be provided by any health care
    30  provider or group of health care providers with respect to the  perform-
    31  ance  of  services  that  are within the health care provider's scope of
    32  practice, license, registration, or certificate.
    33    § 4926. Fees. Each person who acts as the representative or  negotiat-
    34  ing parties under this title shall pay to the department a fee to act as
    35  a  representative.  The commissioner, by rule, shall set fees in amounts
    36  deemed reasonable and necessary to  cover  the  costs  incurred  by  the
    37  department  in  administering  this  title. Any fee collected under this
    38  section shall be deposited in the state treasury to the  credit  of  the
    39  general fund/state operations - 003 for the New York state department of
    40  health fund.
    41    §  4927.  Monitoring  of  agreements.  The commissioner shall actively
    42  monitor agreements approved under this title to ensure that  the  agree-
    43  ment  remains  in  compliance  with  the  conditions  of  approval. Upon
    44  request, a health care plan or health care provider shall provide infor-
    45  mation regarding compliance. The commissioner  may  revoke  an  approval
    46  upon  a finding that the agreement is not in substantial compliance with
    47  the terms of the application or the conditions of approval.
    48    § 4928. Confidentiality. All reports and other information required to
    49  be reported to the department of law under this title including informa-
    50  tion obtained by the commissioner pursuant to subdivision ten of section
    51  forty-nine hundred twenty-four of this title shall  not  be  subject  to
    52  disclosure under article six of the public officers law or article thir-
    53  ty-one of the civil practice law and rules.
    54    §  4929.  Severability  and construction. The provisions of this title
    55  shall be severable, and if any court of competent jurisdiction  declares
    56  any  phrase,  clause, sentence or provision of this title to be invalid,

        A. 2393                             7
     1  or its applicability to any government, agency, person  or  circumstance
     2  is declared invalid, the remainder of this title and its relevant appli-
     3  cability  shall  not  be affected. The provisions of this title shall be
     4  liberally construed to give effect to the purposes thereof.
     5    § 4. This act shall take effect on the one hundred twentieth day after
     6  it  shall have become a law; provided that the commissioner of health is
     7  authorized to promulgate any and all rules and regulations and take  any
     8  other  measures necessary to implement this act on its effective date on
     9  or before such date.