§ 4322. Standardization of individual enrollee direct payment
contracts offered by health maintenance organizations which provide
out-of-plan benefits prior to October first, two thousand thirteen. (a)
On and after January first, nineteen hundred ninety-six, and until
September thirtieth, two thousand thirteen, 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. 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, and until September
thirtieth, two thousand thirteen, 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.

(i) On and after January first, two thousand fourteen, each contract
that is not a grandfathered health plan shall provide coverage for the
essential health benefit package. For purposes of this subsection:

(1) "essential health benefits package" shall have the meaning set
forth in section 1302(a) of the affordable care act, 42 U.S.C. §
18022(a); and

(2) "grandfathered health plan" means coverage provided by a
corporation in which an individual was enrolled on March twenty-third,
two thousand ten for as long as the coverage maintains grandfathered
status in accordance with section 1251(e) of the affordable care act, 42
U.S.C. § 18011(e).

(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;

(E) cervical cytology screening as provided in subsection (t) of
section four thousand three hundred three of this article; and

(F) for a contract that is not a grandfathered health plan, the
following additional preventive health services:

(i) evidence-based items or services that have in effect a rating of
'A' or 'B' in the current recommendations of the United States
preventive services task force;

(ii) immunizations that have in effect a recommendation from the
advisory committee on immunization practices of the centers for disease
control and prevention with respect to the individual involved;

(iii) with respect to children, including infants and adolescents,
evidence-informed preventive care and screenings provided for in the
comprehensive guidelines supported by the health resources and services
administration; and

(iv) with respect to women, such additional preventive care and
screenings not described in item (i) of this subparagraph and as
provided for in comprehensive guidelines supported by the health
resources and services administration.

(v) For purposes of this subparagraph, "grandfathered health plan"
means coverage provided by a corporation in which an individual was
enrolled on March twenty-third, two thousand ten for as long as the
coverage maintains grandfathered status in accordance with section
1251(e) of the Affordable Care Act, 42 U.S.C. § 18011(e).

(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 consistent with the provisions of
subsection (gg) of section four thousand three hundred three of this
article.

(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), whether administered orally or
via a feeding tube 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 subparagraphs (A), (B)
and (C) of this paragraph, the insurer or health maintenance
organization shall adopt standards that 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 subparagraphs (B) and (C) 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 subparagraphs (A) and (C) 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.

(C) Such coverage required pursuant to subparagraph (A) or (B) of this
paragraph 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.

(D) In addition to subparagraph (A), (B) or (C) of this paragraph,
except for a grandfathered health plan under subparagraph (E) of this
paragraph, coverage shall be provided for the following items or
services for bone mineral density, and such coverage shall not be
subject to annual deductibles or coinsurance:

(i) evidence-based items or services for bone mineral density that
have in effect a rating of 'A' or 'B' in the current recommendations of
the United States preventive services task force; and

(ii) with respect to women, such additional preventive care and
screenings for bone mineral density not described in item (i) of this
subparagraph and as provided for in comprehensive guidelines supported
by the health resources and services administration.

(E) For purposes of this paragraph, "grandfathered health plan" means
coverage provided by a corporation in which an individual was enrolled
on March twenty-third, two thousand ten for as long as the coverage
maintains grandfathered status in accordance with section 1251(e) of the
Affordable Care Act, 42 U.S.C. § 18011(e).

(27) Services covered under such policy when provided by a
comprehensive care center for eating disorders pursuant to article
thirty of the mental hygiene 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, well child visits provided pursuant
to paragraph two of subsection (j) of section four thousand three
hundred three of this article, preventive health services provided
pursuant to subparagraph (F) of paragraph four of subsection (b) of this
section or items or services for bone mineral density provided pursuant
to subparagraph (D) of paragraph twenty-six of subsection (b) of this
section 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 for benefits that are not essential health benefits. A lifetime
limit on the dollar amount of essential health benefits for any
individual shall not be established. For purposes of this subsection,
"essential health benefits" shall have the meaning ascribed by section
1302(b) of the Affordable Care Act, 42 U.S.C. § 18022(b).

(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.

(i) On and after January first, two thousand fourteen, each contract
that is not a grandfathered health plan shall provide coverage for the
essential health benefit package. For purposes of this subsection:

(1) "essential health benefits package" shall have the meaning set
forth in section 1302(a) of the affordable care act, 42 U.S.C. §
18022(a); and

(2) "grandfathered health plan" means coverage provided by a
corporation in which an individual was enrolled on March twenty-third,
two thousand ten for as long as the coverage maintains grandfathered
status in accordance with section 1251(e) of the affordable care act, 42
U.S.C. § 18011(e).