S T A T E O F N E W Y O R K
________________________________________________________________________
1631
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. ZEBROWSKI, EDDINGTON -- Multi-Sponsored by -- M.
of A. HOOPER, HYER-SPENCER, PHEFFER, WEISENBERG -- read once and
referred to the Committee on Judiciary
AN ACT to amend the general obligations law and the public health law,
in relation to imposing liability on insurers for failure to approve
coverage for inpatient mental health treatment
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general obligations law is amended by adding two new
sections 11-108 and 11-109 to read as follows:
S 11-108. ACCOUNTABILITY OF HEALTH CARE ORGANIZATIONS. 1. DEFINITIONS.
FOR PURPOSES OF THIS SECTION AND SECTION 11-109 OF THIS TITLE, UNLESS
THE CONTEXT CLEARLY REQUIRES OTHERWISE:
(A) "HEALTH CARE ORGANIZATION" MEANS AN ENTITY, OTHER THAN A HEALTH
CARE PROVIDER, THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH
CARE SERVICES, INCLUDING BUT NOT LIMITED TO:
(I) A HEALTH MAINTENANCE ORGANIZATION LICENSED PURSUANT TO ARTICLE
FORTY-THREE OF THE INSURANCE LAW OR CERTIFIED PURSUANT TO ARTICLE
FORTY-FOUR OF THE PUBLIC HEALTH LAW,
(II) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR
OF THE PUBLIC HEALTH LAW, OR
(III) AN ACCIDENT OR HEALTH INSURANCE CORPORATION SUBJECT TO THE
INSURANCE LAW.
NO ENTITY OR PERSON SHALL BE DEEMED TO BE A HEALTH CARE ORGANIZATION
BECAUSE THE ENTITY OR PERSON PROCURES OR PAYS FOR HEALTH COVERAGE
THROUGH AN ENTITY ACTING UNDER THE INSURANCE LAW OR ARTICLE FORTY-FOUR
OF THE PUBLIC HEALTH LAW.
(B) "HEALTH CARE PROVIDER" MEANS AN ENTITY LICENSED OR CERTIFIED UNDER
ARTICLE TWENTY-EIGHT OR THIRTY-SIX OF THE PUBLIC HEALTH LAW, A PREFERRED
PROVIDER ORGANIZATION, A PARTICIPATING ENTITY THROUGH WHICH A HEALTH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02144-01-9
A. 1631 2
MAINTENANCE ORGANIZATION OFFERS HEALTH SERVICES UNDER ARTICLE FORTY-FOUR
OF THE PUBLIC HEALTH LAW, AN ENTITY LICENSED OR CERTIFIED UNDER ARTICLE
SIXTEEN, THIRTY-ONE OR THIRTY-TWO OF THE MENTAL HYGIENE LAW, A HEALTH
CARE PRACTITIONER LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF
THE EDUCATION LAW, OR A PROVIDER OF PHARMACEUTICAL PRODUCTS OR SERVICES
OR DURABLE MEDICAL EQUIPMENT.
2. (A) WHENEVER A HEALTH CARE ORGANIZATION OR HEALTH INSURER FAILS OR
REFUSES TO APPROVE, PROVIDE, ARRANGE FOR, OR PAY FOR, IN A TIMELY
MANNER, THE ADMISSION OF A COVERED PERSON TO A MENTAL HEALTH CARE FACIL-
ITY WHERE SUCH ADMISSION IS RECOMMENDED BY A HEALTH CARE PROFESSIONAL
WHO IS PROVIDING TREATMENT TO SUCH PERSON, TO THE EXTENT IT IS CONTRAC-
TUALLY OR LEGALLY OBLIGATED TO DO SO, IT SHALL BE LIABLE FOR ANY
PERSONAL INJURY, DEATH OR DAMAGES TO ANY PERSON WHICH ARE CAUSED BY THE
DELAY, FAILURE OR REFUSAL.
(B) A HEALTH CARE ORGANIZATION SHALL BE LIABLE UNDER THIS SECTION,
UNDER OTHERWISE APPLICABLE RULES OF TORT AND CONTRACT LIABILITY, INCLUD-
ING BUT NOT LIMITED TO RULES RELATING TO AGENCY, VICARIOUS LIABILITY,
AND JOINT AND SEVERAL LIABILITY, FOR ANY ACT BY AN AGENT, CONTRACTOR,
PARTICIPATING ENTITY, OR HEALTH CARE PROVIDER, FOR WHICH THE HEALTH CARE
ORGANIZATION WOULD BE LIABLE IF IT WERE COMMITTED BY THE HEALTH CARE
ORGANIZATION.
3. THE FAILURE OF THE PERSON, OR OF ANY OTHER PERSON ACTING ON THE
PERSON'S BEHALF, TO SEEK AN ALTERNATIVE PROVIDER OF OR TO PAY FOR THE
HEALTH CARE SERVICE SHALL NOT DIMINISH THE HEALTH CARE ORGANIZATION'S
LIABILITY OR CONSTITUTE CULPABLE CONDUCT FOR THE PURPOSES OF SECTION
FOURTEEN HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES.
4. NOTHING IN THIS SECTION SHALL LIMIT ANY OTHER RIGHT, REMEDY OR
CAUSE OF ACTION THAT ANY PERSON MAY OTHERWISE HAVE.
5. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND A
HEALTH CARE PROVIDER SHALL:
(A) DIRECTLY OR INDIRECTLY REQUIRE A HEALTH CARE PROVIDER TO INDEMNIFY
OR HOLD HARMLESS THE HEALTH CARE ORGANIZATION FOR ANY LIABILITY RESULT-
ING FROM THE HEALTH CARE ORGANIZATION'S ACTS OR OMISSIONS; OR
(B) WAIVE, LIMIT, OR DELEGATE THE LIABILITY OF THE HEALTH CARE ORGAN-
IZATION UNDER THIS SECTION TO ANY HEALTH CARE PROVIDER.
6. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND ANY
PERSON SHALL WAIVE OR LIMIT ANY LIABILITY OF THE HEALTH CARE ORGANIZA-
TION UNDER THIS SECTION TO THE PERSON.
7. IF THE TIME IN WHICH A PLAINTIFF COULD HAVE COMMENCED AN ACTION FOR
PROFESSIONAL MALPRACTICE FOR THE ACT, ERROR OR OMISSION COMPLAINED OF
HAS EXPIRED PRIOR TO THE COMMENCEMENT OF AN ACTION BROUGHT PURSUANT TO
THIS SECTION AGAINST A HEALTH CARE ORGANIZATION, THE DEFENDANT IN SAID
ACTION SHALL BE BARRED FROM COMMENCING A THIRD-PARTY ACTION AGAINST A
PERSON NOT A PARTY WHO IS OR MAY BE LIABLE TO THAT DEFENDANT FOR ALL OR
PART OF THE PLAINTIFF'S CLAIM AGAINST THE DEFENDANT AND AGAINST WHOM THE
PLAINTIFF CANNOT COMMENCE AN ACTION FOR PROFESSIONAL MALPRACTICE DUE TO
THE EXPIRATION OF THE STATUTE OF LIMITATIONS PRIOR TO THE COMMENCEMENT
OF THE ACTION AGAINST THE DEFENDANT.
8. A HEALTH CARE ORGANIZATION SHALL EXERCISE REASONABLE CARE:
(A) WHEN MAKING DECISIONS WHICH AFFECT THE MENTAL HEALTH CARE OF AN
ENROLLEE; AND
(B) IN SELECTING AND EXERCISING INFLUENCE OR CONTROL OVER ITS EMPLOY-
EES, AGENTS, OSTENSIBLE AGENTS, OR REPRESENTATIVES WHO ARE ACTING ON ITS
BEHALF, RESPECTING DECISIONS WHICH MAY AFFECT THE QUALITY OF THE MENTAL
HEALTH CARE SERVICE PROVIDED TO ITS ENROLLEES.
A. 1631 3
9. THIS SECTION SHALL NOT BE CONSTRUED TO DIMINISH ANY CONTRACTUAL OR
LEGAL OBLIGATION OF THE HEALTH CARE ORGANIZATION, NOR TO CREATE AN OBLI-
GATION ON THE PART OF THE HEALTH CARE ORGANIZATION TO PROVIDE ANY INPA-
TIENT MENTAL HEALTH CARE SERVICE TO AN ENROLLEE THAT IS NOT A COVERED
BENEFIT.
S 11-109. PROTECTION OF HEALTH CARE PROVIDERS. 1. NO HEALTH CARE
ORGANIZATION OR HEALTH CARE PROVIDER SHALL, BY CONTRACT, POLICY OR
PROCEDURE:
(A) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM FILING A
COMPLAINT;
(B) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM MAKING A REPORT
OR COMMENTING TO THE APPROPRIATE GOVERNMENT AGENCY REGARDING THE POLI-
CIES OR PRACTICES OF THE ORGANIZATION WHICH MAY NEGATIVELY AFFECT THE
QUALITY OF OR ACCESS TO HEALTH CARE SERVICES; OR
(C) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM DISCLOSING OR
COMMENTING ON POLICIES OR PRACTICES OF THE ORGANIZATION WHICH MAY NEGA-
TIVELY AFFECT THE QUALITY OF OR ACCESS TO HEALTH CARE SERVICES TO THE
PUBLIC.
THIS SUBDIVISION SHALL NOT BE CONSTRUED TO PERMIT A HEALTH CARE
PROVIDER TO DISCLOSE ANY INFORMATION REGARDING A PATIENT WHICH WOULD
OTHERWISE BE DEEMED CONFIDENTIAL OR PRIVILEGED, OR WHICH SHOULD NOT BE
DISCLOSED OR DISCUSSED ACCORDING TO LAW OR REASONABLE PROFESSIONAL STAN-
DARDS.
2. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL TERMINATE
A CONTRACT OR EMPLOYMENT OF A HEALTH CARE PROVIDER, OR REFUSE TO RENEW
SUCH A CONTRACT, OR PENALIZE A HEALTH CARE PROVIDER OR REDUCE OR LIMIT
THE COMPENSATION OF A HEALTH CARE PROVIDER SOLELY BECAUSE A HEALTH CARE
PROVIDER HAS:
(A) ADVOCATED FOR, RECOMMENDED OR PROVIDED MENTAL HEALTH CARE SERVICE
TO A PATIENT, TO WHICH THE PATIENT WAS ENTITLED BY CONTRACT OR LAW;
(B) TAKEN ANY ACTION UNDER SUBDIVISION ONE OF THIS SECTION;
(C) APPEALED OR ASSISTED IN APPEALING A DECISION OF THE HEALTH CARE
ORGANIZATION RELATING TO THE PROVISION OF MENTAL HEALTH CARE SERVICES;
OR
(D) REQUESTED A HEARING OR REVIEW TO WHICH THE PROVIDER WAS ENTITLED.
3. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL APPLY ANY
INCENTIVE, WHETHER MONETARY OR OTHERWISE, TO A HEALTH CARE PROVIDER
INTENDED OR HAVING THE EFFECT OF INDUCING THE HEALTH CARE PROVIDER TO
DELAY, FAIL OR REFUSE TO PROVIDE ANY INPATIENT MENTAL HEALTH CARE
SERVICE TO WHICH A PATIENT IS ENTITLED BY CONTRACT OR LAW.
S 2. Section 4410 of the public health law is amended by adding a new
subdivision 5 to read as follows:
5. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH MAINTENANCE ORGANIZATION
OR ITS COMPREHENSIVE HEALTH SERVICES PLAN AND ANY HEALTH CARE PROVIDER
SHALL DELEGATE THE LIABILITY OF THE HEALTH MAINTENANCE ORGANIZATION TO
ANY HEALTH CARE PROVIDER OR SHALL REQUIRE THE HEALTH CARE PROVIDER TO
INDEMNIFY OR HOLD HARMLESS THE ORGANIZATION OR PLAN FOR ANY LIABILITY
THE ORGANIZATION OR PLAN MAY INCUR PURSUANT TO THE PROVISIONS OF SECTION
11-108 OR 11-109 OF THE GENERAL OBLIGATIONS LAW.
S 3. This act shall take effect on the sixtieth day after it shall
have become a law.