S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3943
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2017
                                ___________
 
 Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law and the insurance law, in relation
   to health care professional applications and terminations
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 4406-d of the public health law, as added by chap-
 ter 705 of the laws of 1996, subdivision 1 as amended by chapter 425  of
 the laws of 2016, is amended to read as follows:
   §  4406-d. Health care professional applications and terminations.  1.
 (a) A health care plan shall, upon request, make available and  disclose
 to  health care professionals written application procedures and minimum
 qualification requirements which a health care professional must meet in
 order to be considered by the health care plan. The plan  shall  consult
 with appropriately qualified health care professionals in developing its
 qualification  requirements. A health care plan shall complete review of
 the health care professional's application to participate in the in-net-
 work portion of the health care plan's network and shall,  within  sixty
 days  of receiving a health care professional's completed application to
 participate in the health care plan's network, notify  the  health  care
 professional  as  to:  (i)  whether  he  or she is credentialed; or (ii)
 whether additional time is necessary to make a determination because  of
 a  failure  of a third party to provide necessary documentation. In such
 instances where additional time is necessary because of a lack of neces-
 sary documentation, a health plan shall make every effort to obtain such
 information as soon as possible and shall  make  a  final  determination
 within twenty-one days of receiving the necessary documentation.
   (b)  If  the  completed  application  of  a newly-licensed health care
 professional or a health care professional who has recently relocated to
 this state from another state and has not previously practiced  in  this
 state,  who  joins a group practice of health care professionals each of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07878-01-7

 S. 3943                             2
 
 whom participates in the in-network portion  of  a  health  care  plan's
 network,   is  neither  approved  nor  declined  within  sixty  days  of
 submission of a completed application pursuant to paragraph (a) of  this
 subdivision, the health care professional shall be deemed "provisionally
 credentialed"  and  may  participate  in  the  in-network portion of the
 health care plan's network;  provided,  however,  that  a  provisionally
 credentialed  physician  may  not be designated as an enrollee's primary
 care physician until such time as the physician has been  fully  creden-
 tialed.  The  network  participation  for  a  provisionally credentialed
 health care professional shall begin on the day following  the  sixtieth
 day  of  receipt  of  the completed application and shall last until the
 final credentialing determination is made by the  health  care  plan.  A
 health  care professional shall only be eligible for provisional creden-
 tialing if the group practice of health care professionals notifies  the
 health  care  plan in writing that, should the application ultimately be
 denied, the health care professional or the group  practice:  (i)  shall
 refund any payments made by the health care plan for in-network services
 provided by the provisionally credentialed health care professional that
 exceed any out-of-network benefits payable under the enrollee's contract
 with  the health care plan; and (ii) shall not pursue reimbursement from
 the enrollee, except to collect the copayment that otherwise would  have
 been  payable  had  the  enrollee  received  services from a health care
 professional participating in the in-network portion of  a  health  care
 plan's  network.  Interest and penalties pursuant to section three thou-
 sand two hundred  twenty-four-a  of  the  insurance  law  shall  not  be
 assessed based on the denial of a claim submitted during the period when
 the  health  care professional was provisionally credentialed; provided,
 however, that nothing herein shall  prevent  a  health  care  plan  from
 paying  a  claim  from  a  health care professional who is provisionally
 credentialed upon submission of such claim. A health care plan shall not
 deny, after appeal, a claim for services  provided  by  a  provisionally
 credentialed  health  care  professional  solely  on the ground that the
 claim was not timely filed.
   2. (a) A health care plan shall not terminate OR NOT RENEW a  contract
 with  a health care professional unless the health care plan provides to
 the health care professional a written explanation of  the  reasons  for
 the  proposed  contract  termination  and an opportunity for a review or
 hearing as hereinafter provided. This section shall not apply  in  cases
 involving  imminent harm to patient care, a determination of fraud, or a
 final disciplinary action by a state licensing board  or  other  govern-
 mental  agency  that  impairs  the health care professional's ability to
 practice.
   (b) The notice of the proposed  contract  termination  OR  NON-RENEWAL
 provided  by  the health care plan to the health care professional shall
 include:
   (i) the reasons for the proposed action;
   (ii) notice that the health care professional has the right to request
 a hearing or review, at the professional's discretion,  before  a  panel
 [appointed  by  the  health  care plan] COMPRISED OF NO FEWER THAN THREE
 HEALTH CARE PROFESSIONALS LICENSED TO PRACTICE IN THE STATE OF NEW YORK;
   (iii) a time limit of not less than thirty days within which a  health
 care professional may request a hearing; and
   (iv)  a time limit for a hearing date which must be held within thirty
 days after the date of receipt of a request for a hearing.
   (c) The hearing panel shall be comprised of three  [persons  appointed
 by  the health care plan] HEALTH CARE PROFESSIONALS LICENSED TO PRACTICE

 S. 3943                             3
 
 BY THE STATE OF NEW YORK IN THE SAME PROFESSION AS THE  SUBJECT  OF  THE
 REVIEW, ONE OF WHOM IS APPOINTED BY THE HEALTH CARE PLAN, ONE OF WHOM IS
 APPOINTED  BY  THE  HEALTH  CARE  PROFESSIONAL WHO IS THE SUBJECT OF THE
 HEARING.  THE REMAINING MEMBER OF THE PANEL SHALL BE CHOSEN BY THE OTHER
 TWO PANEL MEMBERS. At least one person on such panel shall be a clinical
 peer in the same discipline and the same or  similar  specialty  as  the
 health  care professional under review. The hearing panel may consist of
 more than three persons, provided however that the  number  of  clinical
 peers  on  such  panel  shall  constitute one-third or more of the total
 membership of the panel AND PROVIDED  FURTHER  THAT  THE  RATIO  OF  THE
 NUMBER OF HEALTH CARE PROFESSIONALS APPOINTED BY THE HEALTH CARE PLAN TO
 THE  NUMBER OF HEALTH CARE PROFESSIONALS APPOINTED BY THE SUBJECT OF THE
 HEARING TO THE NUMBER OF HEALTH CARE PROFESSIONALS CHOSEN BY  THE  OTHER
 PANEL MEMBERS REMAINS ONE TO ONE TO ONE.
   (d)  The  hearing panel shall render a decision on the proposed action
 in a timely manner. Such decision shall  include  reinstatement  of  the
 health  care  professional  by  the  health care plan, provisional rein-
 statement subject to conditions set forth by the  health  care  plan  or
 termination  of  the  health  care  professional. Such decision shall be
 provided in writing to the health care professional.
   (e) A decision by the hearing panel to terminate OR NOT RENEW a health
 care professional shall be effective not less than thirty days after the
 receipt by the health care professional of the hearing panel's decision;
 provided, however, that the provisions of paragraph (e)  of  subdivision
 six  of  section  [four  thousand four] FORTY-FOUR hundred three of this
 article shall apply to such termination OR NON-RENEWAL.
   (f) In no event shall termination be effective earlier than sixty days
 from the receipt of the notice of termination.
   3. [Either party to a contract may exercise a right of non-renewal  at
 the  expiration  of  the  contract  period  set  forth therein or, for a
 contract without a specific  expiration  date,  on  each  January  first
 occurring  after  the contract has been in effect for at least one year,
 upon sixty days notice to the other party; provided, however,  that  any
 non-renewal  shall  not  constitute  a  termination for purposes of this
 section.
   4.] A health care plan shall develop and implement policies and proce-
 dures to ensure that health care professionals are regularly informed of
 information maintained by the health care plan to evaluate the  perform-
 ance  or  practice of the health care professional. The health care plan
 shall consult with health care professionals in developing methodologies
 to collect and analyze health care professional profiling  data.  Health
 care  plans  shall  provide  any such information and profiling data and
 analysis to health care professionals. Such information, data or  analy-
 sis  shall be provided on a periodic basis appropriate to the nature and
 amount of data and the volume and  scope  of  services  provided.    Any
 profiling  data used to evaluate the performance or practice of a health
 care professional shall be  measured  against  stated  criteria  and  an
 appropriate  group  of health care professionals using similar treatment
 modalities serving a comparable patient population. Upon presentation of
 such information or data, each health care professional shall  be  given
 the  opportunity to discuss the unique nature of the health care profes-
 sional's patient population which may have a bearing on the health  care
 professional's  profile  and  to work cooperatively with the health care
 plan to improve performance.

 S. 3943                             4
 
   [5.] 4. No health care plan shall terminate a contract or  employment,
 or  refuse  to  renew  a contract, solely because a health care provider
 has:
   (a) advocated on behalf of an enrollee;
   (b) filed a complaint against the health care plan;
   (c) appealed a decision of the health care plan;
   (d)  provided information or filed a report pursuant to section forty-
 four hundred six-c of this article; or
   (e) requested a hearing or review pursuant to this section.
   [6.] 5. Except as provided herein, no contract or agreement between  a
 health  care  plan  and  a  health  care  professional shall contain any
 provision which shall supersede or impair a health  care  professional's
 right to notice of reasons for termination OR NON-RENEWAL and the oppor-
 tunity  for a hearing or review concerning such termination OR NON-RENE-
 WAL.
   [7.] 6. Any contract provision in violation of this section  shall  be
 deemed to be void and unenforceable.
   [8.]  7. For purposes of this section, "health care plan" shall mean a
 health maintenance organization licensed pursuant to article forty-three
 of the insurance law or certified pursuant to this article or  an  inde-
 pendent  practice  association  certified or recognized pursuant to this
 article.
   [9.] 8. For purposes of this section, "health care professional" shall
 mean a health care professional licensed, registered or certified pursu-
 ant to title eight of the education law.
   § 2. Section 4803 of the insurance law, as added by chapter 705 of the
 laws of 1996, subsection (a) as amended by chapter 425 of  the  laws  of
 2016, is amended to read as follows:
   §  4803.  Health care professional applications and terminations.  (a)
 (1) An insurer which offers a managed care product shall, upon  request,
 make  available and disclose to health care professionals written appli-
 cation procedures and minimum qualification requirements which a  health
 care professional must meet in order to be considered by the insurer for
 participation  in  the  in-network  benefits  portion  of  the insurer's
 network for the managed care product. The  insurer  shall  consult  with
 appropriately  qualified  health  care  professionals  in developing its
 qualification requirements for participation in the in-network  benefits
 portion of the insurer's network for the managed care product. An insur-
 er  shall  complete review of the health care professional's application
 to participate in the in-network portion of the insurer's  network  and,
 within  sixty  days  of receiving a health care professional's completed
 application to participate in the insurer's  network,  will  notify  the
 health  care  professional as to: (A) whether he or she is credentialed;
 or (B) whether additional time is  necessary  to  make  a  determination
 because  of  a  failure of a third party to provide necessary documenta-
 tion. In such instances where additional time is necessary because of  a
 lack  of  necessary documentation, an insurer shall make every effort to
 obtain such information as soon as  possible  and  shall  make  a  final
 determination within twenty-one days of receiving the necessary documen-
 tation.
   (2)  If  the  completed  application  of  a newly-licensed health care
 professional or a health care professional who has recently relocated to
 this state from another state and has not previously practiced  in  this
 state,  who  joins a group practice of health care professionals each of
 whom participates in the in-network portion of an insurer's network,  is
 neither  approved  nor  declined  within  sixty  days of submission of a

 S. 3943                             5
 
 completed application pursuant to paragraph one of this subsection, such
 health care professional shall be  deemed  "provisionally  credentialed"
 and  may  participate in the in-network portion of an insurer's network;
 provided,  however,  that a provisionally credentialed physician may not
 be designated as an insured's primary care physician until such time  as
 the physician has been fully credentialed. The network participation for
 a provisionally credentialed health care professional shall begin on the
 day  following  the sixtieth day of receipt of the completed application
 and shall last until the final credentialing determination  is  made  by
 the  insurer.  A  health  care  professional  shall only be eligible for
 provisional credentialing if the group practice of health  care  profes-
 sionals  notifies  the  insurer  in writing that, should the application
 ultimately be denied, the health care professional or  the  group  prac-
 tice:  (A)  shall refund any payments made by the insurer for in-network
 services provided by the provisionally credentialed health care  profes-
 sional  that  exceed  any  out-of-network  benefits  payable  under  the
 insured's contract with the insurer; and (B) shall not pursue reimburse-
 ment from the insured, except to collect the  copayment  or  coinsurance
 that otherwise would have been payable had the insured received services
 from  a health care professional participating in the in-network portion
 of an insurer's network. Interest  and  penalties  pursuant  to  section
 three  thousand  two  hundred twenty-four-a of this chapter shall not be
 assessed based on the denial of a claim submitted during the period when
 the health care professional was provisionally  credentialed;  provided,
 however,  that  nothing  herein  shall  prevent an insurer from paying a
 claim from a health care professional who is provisionally  credentialed
 upon  submission of such claim. An insurer shall not deny, after appeal,
 a claim for services provided by  a  provisionally  credentialed  health
 care  professional  solely  on  the ground that the claim was not timely
 filed.
   (b) (1) An insurer shall not terminate OR NOT RENEW a contract with  a
 health  care  professional  for participation in the in-network benefits
 portion of the insurer's network for a managed care product  unless  the
 insurer  provides  to the health care professional a written explanation
 of the reasons for the proposed contract termination and an  opportunity
 for  a review or hearing as hereinafter provided. This section shall not
 apply in cases involving imminent harm to patient care, a  determination
 of  fraud,  or a final disciplinary action by a state licensing board or
 other governmental agency that impairs the  health  care  professional's
 ability to practice.
   (2)  The  notice  of  the proposed contract termination OR NON-RENEWAL
 provided by the insurer to the health care professional shall include:
   (i) the reasons for the proposed action;
   (ii) notice that the health care professional has the right to request
 a hearing or review, at the professional's discretion,  before  a  panel
 [appointed  by the insurer] COMPRISED OF NO FEWER THAN THREE HEALTH CARE
 PROFESSIONALS LICENSED TO PRACTICE BY THE STATE OF NEW YORK;
   (iii) a time limit of not less than thirty days within which a  health
 care professional may request a hearing or review; and
   (iv)  a  time  limit  for a hearing date which must be held within not
 less than thirty days after the date of receipt of a request for a hear-
 ing.
   (3) The hearing panel shall be comprised of three  [persons  appointed
 by  the  insurer]  HEALTH CARE PROFESSIONALS LICENSED TO PRACTICE BY THE
 STATE OF NEW YORK IN THE SAME PROFESSION AS THE SUBJECT OF  THE  REVIEW,
 ONE OF WHOM IS APPOINTED BY THE INSURER, ONE OF WHOM IS APPOINTED BY THE

 S. 3943                             6
 
 HEALTH  CARE PROFESSIONAL WHO IS THE SUBJECT OF THE HEARING. THE REMAIN-
 ING MEMBER OF THE PANEL SHALL BE CHOSEN BY THE OTHER TWO PANEL  MEMBERS.
 At  least  one person on such panel shall be a clinical peer in the same
 discipline  and the same or similar specialty as the health care profes-
 sional under review. The hearing panel may consist of  more  than  three
 persons,  provided  however  that  the  number of clinical peers on such
 panel shall constitute one-third or more of the total membership of  the
 panel  AND  PROVIDED FURTHER THAT THE RATIO OF THE NUMBER OF HEALTH CARE
 PROFESSIONALS APPOINTED BY THE HEALTH CARE PLAN TO THE NUMBER OF  HEALTH
 CARE PROFESSIONALS APPOINTED BY THE SUBJECT OF THE HEARING TO THE NUMBER
 OF  HEALTH  CARE  PROFESSIONALS  CHOSEN  BY  THE TWO OTHER PANEL MEMBERS
 REMAINS ONE TO ONE TO ONE.
   (4) The hearing panel shall render a decision on the  proposed  action
 in  a  timely  manner.  Such decision shall include reinstatement of the
 health care  professional  by  the  insurer,  provisional  reinstatement
 subject  to  conditions  set  forth by the insurer or termination of the
 health care professional. Such decision shall be provided in writing  to
 the health care professional.
   (5) A decision by the hearing panel to terminate OR NOT RENEW a health
 care professional shall be effective not less than thirty days after the
 receipt by the health care professional of the hearing panel's decision;
 provided, however, that the provisions of subsection (e) of section four
 thousand  eight  hundred four OF THIS ARTICLE shall apply to such termi-
 nation.
   (6) In no event shall termination OR NON-RENEWAL be effective  earlier
 than sixty days from the receipt of the notice of termination OR NON-RE-
 NEWAL.
   (c)  [Either  party  to a contract for participation in the in-network
 benefits portion of an insurer's network for a managed care product  may
 exercise a right of non-renewal at the expiration of the contract period
 set forth therein or, for a contract without a specific expiration date,
 on  each  January  first occurring after the contract has been in effect
 for at least one year, upon  sixty  days  notice  to  the  other  party;
 provided,  however,  that  any non-renewal shall not constitute a termi-
 nation for purposes of this section.
   (d)] An insurer shall develop and implement policies and procedures to
 ensure that health care providers participating in [the] the  in-network
 benefits  portion of an insurer's network for a managed care product are
 regularly informed of information maintained by the insurer to  evaluate
 the performance or practice of the health care professional. The insurer
 shall consult with health care professionals in developing methodologies
 to  collect  and analyze provider profiling data. Insurers shall provide
 any such information and profiling data and  analysis  to  these  health
 care professionals. Such information, data or analysis shall be provided
 on a periodic basis appropriate to the nature and amount of data and the
 volume and scope of services provided. Any profiling data used to evalu-
 ate the performance or practice of such a health care professional shall
 be  measured  against stated criteria and an appropriate group of health
 care professionals using similar treatment modalities serving a compara-
 ble patient population. Upon presentation of such information  or  data,
 each  such  health  care  professional shall be given the opportunity to
 discuss the unique nature of  the  health  care  professional's  patient
 population which may have a bearing on the professional's profile and to
 work cooperatively with the insurer to improve performance.
   [(e)] (D) No insurer shall terminate or refuse to renew a contract for
 participation in the in-network benefits portion of an insurer's network

 S. 3943                             7
 
 for  a  managed care product solely because the health care professional
 has (1) advocated on behalf of an insured; (2)  has  filed  a  complaint
 against  the  insurer;  (3)  has appealed a decision of the insurer; (4)
 provided  information  or  filed a report pursuant to section forty-four
 hundred six-c of the public health law; or (5) requested  a  hearing  or
 review pursuant to this section.
   [(f)]  (E) Except as provided herein, no contract or agreement between
 an insurer and a health  care  professional  for  participation  in  the
 in-network  benefits  portion of an insurer's network for a managed care
 product shall contain any provision which shall supersede  or  impair  a
 health care professional's right to notice of reasons for termination OR
 NON-RENEWAL  and  the  opportunity  for a hearing concerning such termi-
 nation OR NON-RENEWAL.
   [(g)] (F) Any contract provision in violation of this section shall be
 deemed to be void and unenforceable.
   [(h)] (G) For purposes of this  section,  "health  care  professional"
 shall  mean a health care professional licensed, registered or certified
 pursuant to title eight of the education law.
   § 3. This act shall take effect immediately; provided that if  chapter
 425  of  the laws of 2016 shall not have taken effect by such date, then
 subdivision 1 of section 4406-d of the public  health  law,  amended  by
 section  one  of  this  act,  and  subsection (a) of section 4803 of the
 insurance law, as amended by section two of this act shall  take  effect
 on  the  same  date and in the same manner as chapter 425 of the laws of
 2016, as amended, takes effect.