Bill Text: NY S02463 | 2009-2010 | General Assembly | Introduced

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Bill Title: Provides for accountability of "health care organizations" (i.e., entities, other than a health care provider, that approve, provide, arrange for or pay for health care services, including a health plan's preferred provider organization); provides that whenever health care organizations delay, fail or refuse to approve, provide, arrange for, or pay for in a timely manner any health care service that it is contractually obligated to provide or cover for a person, it shall be liable for any personal injury, death or damages caused by delay, failure or refusal; provides that an organization shall be liable for acts by an agent, contractor, etc., for which the organization would be liable if the act were committed by the organization; imposes upon all health plans (including workers compensation and casualty insurers) the duty to exercise reasonable care when making decisions that affect the health care service of an enrollee, and in selecting and exerting influence over its employees, agents, etc., who act on its behalf regarding decisions that affect the quality of an enrollee's diagnosis, care or treatment; prohibits organizations from requiring a health care provider to indemnify or hold it harmless for its liability; related provisions.

Spectrum: Moderate Partisan Bill (Republican 5-1)

Status: (Introduced - Dead) 2010-01-06 - REFERRED TO JUDICIARY [S02463 Detail]

Download: New_York-2009-S02463-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2463
                              2009-2010 Regular Sessions
                                   I N  S E N A T E
                                   February 20, 2009
                                      ___________
       Introduced  by  Sens.  LAVALLE, DIAZ, LARKIN, MORAHAN, SALAND, VOLKER --
         read twice and ordered printed, and when printed to  be  committed  to
         the Committee on Judiciary
       AN  ACT to amend the general obligations law, the civil practice law and
         rules and the public health law, in relation to  holding  health  care
         organizations accountable for the consequences of their decisions
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Legislative findings. The legislature  finds  that  a  wide
    2  variety  of  entities are integrating the functions of paying for health
    3  care, determining what health care is paid for, and providing the  care.
    4  This integration of functions is breaking down traditional distinctions.
    5  Increasingly,   payor  determinations  are  governing  health  care  and
    6  controlling decisions that in the past  were  the  exclusive  domain  of
    7  health  care  professionals  and patients. The legislature further finds
    8  that this integration of functions makes it imperative that health  care
    9  organizations  be  held  fully responsible for the consequences of their
   10  decisions, much as health care professionals have been held  accountable
   11  for the consequences of their decisions.
   12    S 2. The general obligations law is amended by adding two new sections
   13  11-108 and 11-109 to read as follows:
   14    S  11-108.  ACCOUNTABILITY  OF  HEALTH  CARE ORGANIZATIONS. 1.   DEFI-
   15  NITIONS. FOR PURPOSES OF THIS SECTION AND SECTION 11-109 OF THIS  TITLE,
   16  UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE:
   17    (A)  "HEALTH  CARE  ORGANIZATION" MEANS AN ENTITY (OTHER THAN A HEALTH
   18  CARE PROVIDER) THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH
   19  CARE SERVICES, INCLUDING BUT NOT LIMITED TO:
   20    (I) A HEALTH MAINTENANCE ORGANIZATION  LICENSED  PURSUANT  TO  ARTICLE
   21  FORTY-THREE  OF  THE  INSURANCE  LAW  OR  CERTIFIED  PURSUANT TO ARTICLE
   22  FORTY-FOUR OF THE PUBLIC HEALTH LAW,
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09553-01-9
       S. 2463                             2
    1    (II) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO  ARTICLE  FORTY-FOUR
    2  OF THE PUBLIC HEALTH LAW, OR
    3    (III) AN INSURER OR CORPORATION SUBJECT TO THE INSURANCE LAW.
    4    NO  ENTITY  OR PERSON SHALL BE DEEMED TO BE A HEALTH CARE ORGANIZATION
    5  BECAUSE THE ENTITY OR  PERSON  PROCURES  OR  PAYS  FOR  HEALTH  COVERAGE
    6  THROUGH  AN  ENTITY ACTING UNDER THE INSURANCE LAW OR ARTICLE FORTY-FOUR
    7  OF THE PUBLIC HEALTH LAW.
    8    (B) "HEALTH CARE PROVIDER" MEANS AN ENTITY LICENSED OR CERTIFIED UNDER
    9  ARTICLE TWENTY-EIGHT OR THIRTY-SIX OF THE PUBLIC HEALTH LAW, A PREFERRED
   10  PROVIDER ORGANIZATION, A PARTICIPATING ENTITY  THROUGH  WHICH  A  HEALTH
   11  MAINTENANCE ORGANIZATION OFFERS HEALTH SERVICES UNDER ARTICLE FORTY-FOUR
   12  OF  THE PUBLIC HEALTH LAW, AN ENTITY LICENSED OR CERTIFIED UNDER ARTICLE
   13  SIXTEEN, THIRTY-ONE OR THIRTY-TWO OF THE MENTAL HYGIENE  LAW,  A  HEALTH
   14  CARE PRACTITIONER LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF
   15  THE  EDUCATION LAW, OR A PROVIDER OF PHARMACEUTICAL PRODUCTS OR SERVICES
   16  OR DURABLE MEDICAL EQUIPMENT.
   17    (C) "HEALTH CARE SERVICE"  MEANS  HEALTH  CARE  SERVICES,  TREATMENTS,
   18  PRODUCTS OR EQUIPMENT PROVIDED BY A HEALTH CARE PROVIDER.
   19    2. (A) WHENEVER A HEALTH CARE ORGANIZATION DELAYS, FAILS OR REFUSES TO
   20  APPROVE,  PROVIDE,  ARRANGE  FOR,  OR  PAY  FOR, IN A TIMELY MANNER, ANY
   21  HEALTH CARE SERVICE TO A PERSON TO THE EXTENT  IT  IS  CONTRACTUALLY  OR
   22  LEGALLY  OBLIGATED TO DO SO, IT SHALL BE LIABLE FOR ANY PERSONAL INJURY,
   23  DEATH OR DAMAGES CAUSED BY THE DELAY, FAILURE OR REFUSAL.
   24    (B) A HEALTH CARE ORGANIZATION SHALL BE  LIABLE  UNDER  THIS  SECTION,
   25  UNDER OTHERWISE APPLICABLE RULES OF TORT AND CONTRACT LIABILITY, INCLUD-
   26  ING  BUT  NOT  LIMITED TO RULES RELATING TO AGENCY, VICARIOUS LIABILITY,
   27  AND JOINT AND SEVERAL LIABILITY, FOR ANY ACT BY  AN  AGENT,  CONTRACTOR,
   28  PARTICIPATING ENTITY, OR HEALTH CARE PROVIDER, FOR WHICH THE HEALTH CARE
   29  ORGANIZATION  WOULD  BE  LIABLE  IF IT WERE COMMITTED BY THE HEALTH CARE
   30  ORGANIZATION.
   31    3. THE FAILURE OF THE PERSON (OR OF ANY OTHER  PERSON  ACTING  ON  THE
   32  PERSON'S  BEHALF)  TO  SEEK AN ALTERNATIVE PROVIDER OF OR TO PAY FOR THE
   33  HEALTH CARE SERVICE SHALL NOT DIMINISH THE  HEALTH  CARE  ORGANIZATION'S
   34  LIABILITY  OR  CONSTITUTE  CULPABLE  CONDUCT FOR THE PURPOSES OF SECTION
   35  FOURTEEN HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES.
   36    4. NOTHING IN THIS SECTION SHALL LIMIT  ANY  OTHER  RIGHT,  REMEDY  OR
   37  CAUSE OF ACTION THAT ANY PERSON MAY OTHERWISE HAVE.
   38    5.  NO  CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND A
   39  HEALTH CARE PROVIDER SHALL:
   40    (A) DIRECTLY OR INDIRECTLY REQUIRE A HEALTH CARE PROVIDER TO INDEMNIFY
   41  OR HOLD HARMLESS THE HEALTH CARE ORGANIZATION FOR ANY LIABILITY  RESULT-
   42  ING FROM THE HEALTH CARE ORGANIZATION'S ACTS OR OMISSIONS; OR
   43    (B)  WAIVE, LIMIT, OR DELEGATE THE LIABILITY OF THE HEALTH CARE ORGAN-
   44  IZATION UNDER THIS SECTION TO ANY HEALTH CARE PROVIDER.
   45    6. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND ANY
   46  PERSON SHALL WAIVE OR LIMIT ANY LIABILITY OF THE HEALTH  CARE  ORGANIZA-
   47  TION UNDER THIS SECTION TO THE PERSON.
   48    7. IF THE TIME IN WHICH A PLAINTIFF COULD HAVE COMMENCED AN ACTION FOR
   49  PROFESSIONAL  MALPRACTICE  FOR  THE ACT, ERROR OR OMISSION COMPLAINED OF
   50  HAS EXPIRED PRIOR TO THE COMMENCEMENT OF AN ACTION BROUGHT  PURSUANT  TO
   51  THIS  SECTION  AGAINST A HEALTH CARE ORGANIZATION, THE DEFENDANT IN SAID
   52  ACTION SHALL BE BARRED FROM COMMENCING A THIRD-PARTY  ACTION  AGAINST  A
   53  PERSON  NOT A PARTY WHO IS OR MAY BE LIABLE TO THAT DEFENDANT FOR ALL OR
   54  PART OF THE PLAINTIFF'S CLAIM AGAINST THE DEFENDANT AND AGAINST WHOM THE
   55  PLAINTIFF CANNOT COMMENCE AN ACTION FOR PROFESSIONAL  MALPRACTICE DUE TO
       S. 2463                             3
    1  THE EXPIRATION OF THE STATUTE OF LIMITATIONS PRIOR TO  THE  COMMENCEMENT
    2  OF THE ACTION AGAINST THE DEFENDANT.
    3    8.  A  HEALTH  CARE  ORGANIZATION SHALL EXERCISE REASONABLE CARE:  (A)
    4  WHEN MAKING DECISIONS WHICH AFFECT THE HEALTH CARE SERVICE OF AN  ENROL-
    5  LEE;  AND  (B) IN SELECTING AND EXERCISING INFLUENCE OR CONTROL OVER ITS
    6  EMPLOYEES, AGENTS, OSTENSIBLE AGENTS, OR REPRESENTATIVES WHO ARE  ACTING
    7  ON  ITS BEHALF, RESPECTING DECISIONS WHICH MAY AFFECT THE QUALITY OF THE
    8  HEALTH CARE SERVICE PROVIDED TO ITS ENROLLEES.
    9    9. THIS SECTION SHALL NOT BE CONSTRUED TO DIMINISH ANY CONTRACTUAL  OR
   10  LEGAL OBLIGATION OF THE HEALTH CARE ORGANIZATION, NOR TO CREATE AN OBLI-
   11  GATION ON THE PART OF THE HEALTH CARE ORGANIZATION TO PROVIDE ANY HEALTH
   12  CARE SERVICE TO AN ENROLLEE THAT IS NOT A COVERED BENEFIT.
   13    S  11-109.  PROTECTION  OF  HEALTH  CARE  PROVIDERS. 1. NO HEALTH CARE
   14  ORGANIZATION OR HEALTH CARE  PROVIDER  SHALL,  BY  CONTRACT,  POLICY  OR
   15  PROCEDURE:
   16    (A)  PROHIBIT  OR  RESTRICT  ANY  HEALTH  CARE  PROVIDER FROM FILING A
   17  COMPLAINT;
   18    (B) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM MAKING A REPORT
   19  OR COMMENTING TO THE APPROPRIATE GOVERNMENT AGENCY REGARDING  THE  POLI-
   20  CIES  OR  PRACTICES  OF THE ORGANIZATION WHICH MAY NEGATIVELY AFFECT THE
   21  QUALITY OF OR ACCESS TO HEALTH CARE SERVICES; OR
   22    (C) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM  DISCLOSING  OR
   23  COMMENTING  ON POLICIES OR PRACTICES OF THE ORGANIZATION WHICH MAY NEGA-
   24  TIVELY AFFECT THE QUALITY OF OR ACCESS TO HEALTH CARE  SERVICES  TO  THE
   25  PUBLIC.
   26    THIS  SUBDIVISION  SHALL  NOT  BE  CONSTRUED  TO  PERMIT A HEALTH CARE
   27  PROVIDER TO DISCLOSE ANY INFORMATION REGARDING  A  PATIENT  WHICH  WOULD
   28  OTHERWISE  BE  DEEMED CONFIDENTIAL OR PRIVILEGED, OR WHICH SHOULD NOT BE
   29  DISCLOSED OR DISCUSSED ACCORDING TO LAW OR REASONABLE PROFESSIONAL STAN-
   30  DARDS.
   31    2. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL TERMINATE
   32  A CONTRACT OR EMPLOYMENT OF A HEALTH CARE PROVIDER, OR REFUSE  TO  RENEW
   33  SUCH  A  CONTRACT, OR PENALIZE A HEALTH CARE PROVIDER OR REDUCE OR LIMIT
   34  THE COMPENSATION OF A HEALTH CARE PROVIDER SOLELY BECAUSE A HEALTH  CARE
   35  PROVIDER HAS:
   36    (A)  ADVOCATED  FOR,  RECOMMENDED OR PROVIDED A PARTICULAR HEALTH CARE
   37  SERVICE TO A PATIENT, TO WHICH THE PATIENT WAS ENTITLED  BY CONTRACT  OR
   38  LAW;
   39    (B) TAKEN ANY ACTION UNDER SUBDIVISION ONE OF THIS SECTION;
   40    (C)  APPEALED  OR  ASSISTED IN APPEALING A DECISION OF THE HEALTH CARE
   41  ORGANIZATION; OR
   42    (D) REQUESTED A HEARING OR REVIEW TO WHICH THE PROVIDER WAS ENTITLED.
   43    3. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL APPLY ANY
   44  INCENTIVE, WHETHER MONETARY OR OTHERWISE,  TO  A  HEALTH  CARE  PROVIDER
   45  INTENDED  OR  HAVING  THE EFFECT OF INDUCING THE HEALTH CARE PROVIDER TO
   46  DELAY, FAIL OR REFUSE TO PROVIDE ANY HEALTH  CARE  SERVICE  TO  WHICH  A
   47  PATIENT IS ENTITLED BY CONTRACT OR LAW.
   48    S  3.  Section  1602 of the civil practice law and rules is amended by
   49  adding a new subdivision 14 to read as follows:
   50    14. NOT APPLY TO AN ACTION AGAINST A HEALTH CARE ORGANIZATION  BROUGHT
   51  PURSUANT TO SECTION 11-108 OF THE GENERAL OBLIGATIONS LAW.
   52    S  4. Subdivision 1 of section 4410 of the public health law, as added
   53  by chapter 938 of the laws of 1976, is amended to read as follows:
   54    1. The provision of comprehensive health services  directly  or  indi-
   55  rectly,  by  a health maintenance organization through its comprehensive
   56  health services plan shall not be considered the practice of the profes-
       S. 2463                             4
    1  sion of medicine by such organization or plan.  [However,  each]  EXCEPT
    2  THAT:
    3    (A) THIS SUBDIVISION SHALL NOT BE CONSTRUED TO LIMIT ANY LIABILITY THE
    4  HEALTH  MAINTENANCE  ORGANIZATION  OR  ITS COMPREHENSIVE HEALTH SERVICES
    5  PLAN WOULD OTHERWISE HAVE RELATING TO ANY PROFESSIONAL SERVICES RENDERED
    6  BY, ON BEHALF OF, OR IN CONNECTION WITH THE ORGANIZATION OR PLAN.
    7    (B) EACH member, employee or agent of such organization or plan  shall
    8  be  fully  and  personally  liable  and accountable for any negligent or
    9  wrongful act or misconduct committed by him OR HER or any  person  under
   10  his  OR  HER direct supervision and control while rendering professional
   11  services on behalf of [such] THE organization or plan.
   12    (C) NO CONTRACT OR AGREEMENT BETWEEN A HEALTH MAINTENANCE ORGANIZATION
   13  OR ITS COMPREHENSIVE HEALTH SERVICES PLAN AND ANY HEALTH  CARE  PROVIDER
   14  SHALL  DELEGATE  THE LIABILITY OF THE HEALTH MAINTENANCE ORGANIZATION TO
   15  ANY HEALTH CARE PROVIDER OR SHALL REQUIRE THE HEALTH  CARE  PROVIDER  TO
   16  INDEMNIFY  OR  HOLD  HARMLESS THE ORGANIZATION OR PLAN FOR ANY LIABILITY
   17  THE ORGANIZATION OR PLAN MAY INCUR.
   18    S 5. If any provision of this act or the application thereof shall  be
   19  held to be invalid, such invalidity shall not affect other provisions or
   20  other  applications  of  any  provision  of  this act which can be given
   21  effect without the invalid provision or application, and  to  that  end,
   22  the provisions and application of this act are severable.
   23    S 6. This act shall take effect immediately.