Section 4322. Standardization of individual enrollee direct payment contracts offered by health maintenance organizations which provide out-of-plan benefits

(a) On and after January first, nineteen hundred  ninety-six, all health maintenance organizations issued a certificate of
  authority under article forty-four of the public health law or  licensed
  under  this  article  shall  offer  to  individuals,  in addition to the
  standardized contract required by section four  thousand  three  hundred
  twenty-one  of  this  article, a standardized individual enrollee direct
  payment contract on an open enrollment basis as  prescribed  by  section
  four  thousand  three hundred seventeen of this article and section four
  thousand four hundred six of the  public  health  law,  and  regulations
  promulgated  thereunder,  with  an out-of-plan benefit system, provided,
  however, that such requirements shall not apply to a health  maintenance
  organization  exclusively serving individuals enrolled pursuant to title
  eleven of article five of the social services  law,  title  eleven-D  of
  article  five  of  the  social  services  law,  title  one-A  of article
  twenty-five of the public health law or title eighteen  of  the  federal
  Social Security Act, and, further provided, that such health maintenance
  organization   shall  not  discontinue  a  contract  for  an  individual
  receiving comprehensive-type coverage in effect prior to January  first,
  two  thousand  four who is ineligible to purchase policies offered after
  such date pursuant to  this  section  or  section  four  thousand  three
  hundred  twenty-two  of  this  article due to the provision of 42 U.S.C.
  1395ss in  effect  prior  to  January  first,  two  thousand  four.  The
  out-of-plan  benefit  system  shall  either  be  provided  by the health
  maintenance organization pursuant to subdivision  two  of  section  four
  thousand  four  hundred  six  of  the  public  health  law or through an
  accompanying insurance contract providing out-of-plan  benefits  offered
  by  a  company  appropriately  licensed pursuant to this chapter. On and
  after January first, nineteen hundred ninety-six, the  contracts  issued
  pursuant  to  this  section  and  section  four  thousand  three hundred
  twenty-one of this article shall be the only contracts offered by health
  maintenance organizations to individuals. The enrollee contracts  issued
  by a health maintenance organization under this section and section four
  thousand three hundred twenty-one of this article shall also be the only
  contracts  issued by the health maintenance organization for purposes of
  conversion pursuant to sections four thousand  three  hundred  four  and
  four  thousand  three  hundred five of this article. However, nothing in
  this section shall be deemed to require health maintenance organizations
  to terminate individual direct payment contracts issued prior to January
  first,  nineteen  hundred  ninety-six  or  prohibit  health  maintenance
  organizations  from  terminating  individual  direct  payment  contracts
  issued prior to January first, nineteen hundred ninety-six.
    (b) The in-plan and out-of-plan covered benefits for the  standardized
  individual  enrollee  direct payment contract shall include coverage for
  all health services which an enrolled population in a health maintenance
  organization might require in order to be  maintained  in  good  health,
  rendered  without  limitation  as to time and cost, except to the extent
  permitted by this chapter.
    The in-plan and out-of-plan covered services include the following:
    (1) Inpatient hospital services, including:
    (A) daily room and board;
    (B) general nursing care;
    (C) special diets; and
    (D) miscellaneous hospital services.
    (2) Outpatient hospital services including:
    (A) diagnostic and treatment services;
    (B) x-rays; and

    (C) laboratory tests.
    (3) Physician services including:
    (A) consultant and referral services;
    (B) primary and preventive care services;
    (C) in-hospital medical services;
    (D) surgical services;
    (E) anesthetic services; and
    (F) second surgical opinion.
    (4) Preventive health services including:
    (A) periodic physical examinations, including eye and ear examinations
  to determine the need for vision and hearing correction;
    (B) well child care from birth;
    (C) pediatric and adult immunizations;
    (D)  mammography  screening,  as provided in subsection (p) of section
  four thousand three hundred three of this article; and
    (E) cervical cytology screening  as  provided  in  subsection  (t)  of
  section four thousand three hundred three of this article.
    (5) Emergency services.
    (6) Diagnostic laboratory services.
    (7) Therapeutic and diagnostic radiologic services.
    (8) Preadmission testing.
    (9)  Home  health  services  up  to  two hundred visits per member per
  calendar year.
    (10) Maternity care.
    (11) Chemotherapy services.
    (12) Hemodialysis services.
    (13) Outpatient physical therapy up to ninety visits per condition per
  calendar year.
    (14) Hospice care up to two hundred ten days.
    (15) Skilled nursing facility care when preceded by a hospital stay of
  at least three days  and  further  hospitalization  would  otherwise  be
  necessary.
    (16)   Equipment,  supplies  and  self-management  education  for  the
  treatment of diabetes.
    (17) Inpatient diagnosis and treatment of mental, nervous or emotional
  disorders or ailments up to thirty days per calendar year combined  with
  inpatient treatment of alcoholism and substance abuse.
    (18) Inpatient diagnosis and treatment of alcoholism and alcohol abuse
  and  substance  abuse  and  substance  dependence  up to thirty days per
  calendar year for detoxification combined with  inpatient  treatment  of
  mental, nervous or emotional disorders or ailments.
    (19)   Outpatient  diagnosis  and  treatment  of  mental,  nervous  or
  emotional disorders or ailments up to  thirty  non-emergency  and  three
  emergency visits per calendar year.
    (20) Ambulance services.
    (21)  Private  duty nursing up to five thousand dollars per individual
  per calendar year up  to  a  ten  thousand  dollar  individual  lifetime
  maximum.
    (22)  Prosthetics,  orthotics,  durable  medical equipment and medical
  supplies.
    (23) Inpatient physical rehabilitation services.
    (24) Blood and blood products.
    (25) Prescription drugs,  including  contraceptive  drugs  or  devices
  approved  by  the  federal  food  and  drug  administration  or  generic
  equivalents approved as substitutes by such food and drug administration
  and nutritional supplements (formulas) for the therapeutic treatment  of
  phenylketonuria,     branched-chain    ketonuria,    galactosemia    and
  homocystinuria,  obtained  at   a   participating   pharmacy   under   a

  prescription  written  by  an  in-plan  or  out-of-plan provider. Health
  maintenance  organizations,  in  addition  to  providing  coverage   for
  prescription drugs at a participating pharmacy, may utilize a mail order
  prescription  drug program. Health maintenance organizations may provide
  prescription  drugs  pursuant  to  a  drug  formulary;  however,  health
  maintenance  organizations must implement an appeals process so that the
  use of non-formulary prescription drugs may be requested by a  physician
  or other provider.
    Health  maintenance  organizations  shall  impose a one hundred dollar
  individual deductible and a three hundred dollar family  deductible  per
  calendar  year  for  prescription  drugs  obtained  at  a  participating
  pharmacy. Health maintenance organizations may not impose  a  deductible
  on prescriptions obtained through the mail order drug program.
    In addition to the deductible, a ten dollar copayment shall be imposed
  on  up  to  a  thirty-four  day  supply of brand name prescription drugs
  obtained at a participating pharmacy. A five dollar copayment  shall  be
  imposed  on up to a thirty-four day supply of generic prescription drugs
  or brand name drugs for which there is no generic equivalent obtained at
  a participating pharmacy.
    If a mail order drug program is utilized, a  twenty  dollar  copayment
  shall  be  imposed  on  a  ninety  day supply of brand name prescription
  drugs. A ten dollar copayment shall be imposed on a ninety day supply of
  generic prescription drugs or brand name drugs for  which  there  is  no
  generic equivalent obtained through the mail order drug program.
    In  no  event  shall  the  copayment exceed the cost of the prescribed
  drug.
    (26) Bone mineral density measurements or tests and, if such  contract
  otherwise  includes  coverage  for prescription drugs, drugs and devices
  approved  by  the  federal  food  and  drug  administration  or  generic
  equivalents as approved substitutes.
    In  determining  appropriate  coverage provided by this paragraph, the
  insurer or health maintenance organization shall adopt  standards  which
  include the criteria of the federal medicare program and the criteria of
  the  national  institutes  of  health for the detection of osteoporosis,
  provided that such coverage shall be further determined as follows:
    (A) For purposes of this paragraph, bone mineral density  measurements
  or  tests,  drugs  and  devices  shall  include  those covered under the
  criteria of the federal medicare program as well as those in  accordance
  with  the  criteria, of the national institutes of health, including, as
  consistent with such criteria dual-energy x-ray absorptiometry.
    (B) For purposes of this paragraph, bone mineral density  measurements
  or tests, drugs and devices shall be covered for individuals meeting the
  criteria  for  coverage  consistent  with the criteria under the federal
  medicare program or the criteria of the national institutes  of  health;
  provided  that, to the extent consistent with such criteria, individuals
  qualifying for coverage shall at a minimum, include individuals:
    (i) previously diagnosed as having osteoporosis  or  having  a  family
  history of osteoporosis; or
    (ii)  with  symptoms  or conditions indicative of the presence, or the
  significant risk, of osteoporosis; or
    (iii) on a prescribed  drug  regimen  posing  a  significant  risk  of
  osteoporosis; or
    (iv)  with  lifestyle factors to such a degree as posing a significant
  risk of osteoporosis; or
    (v) with such age, gender and/or other  physiological  characteristics
  which pose a significant risk for osteoporosis.

    Such  coverage may be subject to annual deductibles and coinsurance as
  may be deemed appropriate by the superintendent and  as  are  consistent
  with those established for other benefits within a given policy.
    (27)   Services   covered   under  such  policy  when  provided  by  a
  comprehensive care center  for  eating  disorders  pursuant  to  article
  twenty-seven-J  of  the  public  health  law;  provided,  however,  that
  reimbursement under such  policy  for  services  provided  through  such
  comprehensive   care   centers   shall,   to  the  extent  possible  and
  practicable, be structured in a manner to facilitate the individualized,
  comprehensive and integrated plans of care which such  centers'  network
  of practitioners and providers are required to provide.
    (b-1)   The   in-plan   and   out-of-plan  covered  benefits  for  the
  standardized individual enrollee direct payment contracts established by
  this section and section four thousand three hundred twenty-one of  this
  article  shall  not  include  drugs,  procedures  and  supplies  for the
  treatment of erectile dysfunction when provided to,  or  prescribed  for
  use  by, a person who is required to register as a sex offender pursuant
  to article six-C of the correction law, provided that: (1) any denial of
  coverage pursuant to this subsection shall provide the enrollee with the
  means of obtaining additional information concerning both the denial and
  the means of challenging such denial;  (2)  all  drugs,  procedures  and
  supplies  for  the  treatment  of erectile dysfunction may be subject to
  prior authorization by health maintenance organizations or insurers  for
  the purposes of implementing this subsection; and (3) the superintendent
  shall  promulgate  regulations  to  implement  the  denial  of  coverage
  pursuant to this subsection giving health maintenance organizations  and
  insurers  at  least sixty days following promulgation of the regulations
  to implement their denial procedures pursuant to this subsection.
    (b-2) No person or entity authorized to provide  coverage  under  this
  section  shall be subject to any civil or criminal liability for damages
  for any decision or action pursuant to subsection (b-1) of this section,
  made in the ordinary course of business if  that  authorized  person  or
  entity  acted  reasonably  and  in  good  faith  with  respect  to  such
  information.
    (b-3) Notwithstanding any other provision of law, if the  commissioner
  of  health  makes  a  finding  pursuant  to  subdivision twenty-three of
  section two hundred six of the public health law, the superintendent  is
  authorized  to  remove  a  drug,  procedure  or supply from the services
  covered by the contracts established by this section  and  section  four
  thousand  three  hundred  twenty-one  of  this article for those persons
  required to register as sex offenders pursuant to article six-C  of  the
  correction law.
    (c)  The in-plan benefit system shall impose a ten dollar copayment on
  all visits to a physician or other provider with the exception of visits
  for pre-natal and post-natal care or well child visits provided pursuant
  to paragraph two of  subsection  (j)  of  section  four  thousand  three
  hundred  three  of  this  article  for which no copayment shall apply. A
  copayment of ten dollars shall be imposed  on  equipment,  supplies  and
  self-management  education for the treatment of diabetes. Coinsurance of
  ten percent shall apply to visits for the  diagnosis  and  treatment  of
  mental, nervous or emotional disorders or ailments. A thirty-five dollar
  copayment  shall  be  imposed  on  emergency  services  rendered  in the
  emergency room of a hospital; however, this copayment must be waived  if
  hospital admission results.
    (d)  The  out-of-plan  benefit  system shall have an annual deductible
  established at one thousand dollars per calendar year for an  individual
  and  two  thousand  dollars  per year for a family. Coinsurance shall be
  established at twenty percent with the health  maintenance  organization

  or  insurer paying eighty percent of the usual, customary and reasonable
  charges, or eighty percent of the amounts listed on a fee schedule filed
  with and approved by the  superintendent  which  provides  a  comparable
  level  of  reimbursement.  Coinsurance  of  ten  percent  shall apply to
  outpatient visits for the diagnosis and treatment of mental, nervous  or
  emotional  disorders or ailments. The benefits described in subparagraph
  (F)  of  paragraph  three  and  paragraphs  seventeen  and  eighteen  of
  subsection (b) of this section shall not be subject to the deductible or
  coinsurance.  The benefits described in paragraph nine of subsection (b)
  of this section shall not be subject to the deductible. The  out-of-plan
  out-of-pocket maximum deductible and coinsurance shall be established at
  three  thousand  dollars  per  calendar  year for an individual and five
  thousand dollars  per  calendar  year  for  a  family.  The  out-of-plan
  lifetime  benefit  maximum shall be established at five hundred thousand
  dollars.
    (e)  The  provisions  of  each  contract   describing   administrative
  procedures   and  other  provisions  not  affecting  the  scope  of,  or
  conditions for obtaining, covered benefits, such as, but not limited to,
  eligibility and termination provisions, may be  of  the  type  generally
  issued by the health maintenance organization and/or insurer, as long as
  the  superintendent  determines  that the terms and description of those
  administrative and other provisions are unlikely  to  affect  consumers'
  determinations  of  which  health maintenance organization's contract to
  purchase and are not contrary to law. Each  contract  may  also  include
  limitations  and  conditions  on  coverage of benefits described in this
  section provided  the  superintendent  determines  the  limitations  and
  conditions  on coverage were commonly included in the health maintenance
  organization and/or health insurance products covering individuals on  a
  direct payment basis prior to January first, nineteen hundred ninety-six
  and are not contrary to law.
    (f)   A   health  maintenance  organization  may  offer  the  required
  out-of-plan benefits by means of a rider to a contract offering  in-plan
  benefits only.
    (g) Day and visit limitations on benefits included in this section are
  aggregate  limitations  regardless  of  whether  services  are  received
  in-plan or out-of-plan. The five  thousand  dollar  per  individual  per
  calendar  year limitation and ten thousand dollar lifetime limitation on
  private duty nursing is also an aggregate  limitation  for  in-plan  and
  out-of-plan benefits combined.
    (h)  The  superintendent shall be authorized to modify, by regulation,
  the copayments, deductibles and coinsurance amounts  described  in  this
  section,  if the superintendent determines such amendments are necessary
  to moderate potential premiums. On  or  after  January  first,  nineteen
  hundred   ninety-eight,   the  superintendent  shall  be  authorized  to
  establish one or more additional standardized individual enrollee direct
  payment contracts if the superintendent determines, after  one  or  more
  public  hearings, additional contracts with different levels of benefits
  are necessary to meet the needs of the public.