4325 - Prohibitions.
§ 4325. Prohibitions. (a) No corporation organized under this article shall by contract, written policy or written procedure prohibit or restrict any health care provider from disclosing to any subscriber, designated representative or, where appropriate, prospective subscriber, (hereinafter collectively referred to as subscriber) any information that such provider deems appropriate regarding: (1) a condition or a course of treatment with a subscriber including the availability of other therapies, consultations, or tests; or (2) the provisions, terms, or requirements of the corporation's products as they relate to the subscriber. (b) No corporation organized under this article shall by contract, written policy or written procedure prohibit or restrict any health care provider from filing a complaint, making a report or commenting to an appropriate governmental body regarding the policies or practices of such corporation which the provider believes may negatively impact upon the quality of or access to patient care. (c) No corporation organized under this article shall by contract, written policy or written procedure prohibit or restrict any health care provider from advocating to the corporation on behalf of the subscriber for approval or coverage of a particular course of treatment. (d) No contract or agreement between a corporation organized under this article and a health care provider shall contain any clause purporting to transfer to the health care provider by indemnification or otherwise any liability relating to activities, actions or omissions of the corporation as opposed to the health care provider. (e) Contracts entered into between an insurer and a health care provider shall include terms which prescribe: (1) the method by which payments to a provider, including any prospective or retrospective adjustments thereto, shall be calculated; (2) the time periods within which such calculations will be completed, the dates upon which any such payments and adjustments shall be determined to be due, and the rates upon which any such payments and adjustments will be made; (3) a description of the records or information relied upon to calculate any such payments and adjustments, and a description of how the provider can access a summary of such calculations and adjustments; (4) the process to be employed to resolve disputed incorrect or incomplete records or information and to adjust any such payments and adjustments which have been calculated by relying on any such incorrect or incomplete records or information so disputed; provided, however, that nothing herein shall be deemed to authorize or require the disclosure of personally identifiable patient information or information related to other individual health care providers or the plan's proprietary data collection systems, software or quality assurance or utilization review methodologies; and (5) the right of either party to the contract to seek resolution of a dispute arising pursuant to the payment terms of such contract through a proceeding under article seventy-five of the civil practice law and rules. (f) No contract entered into between an insurer and a health care provider shall be enforceable if it includes terms which transfer financial risk to providers, in a manner inconsistent with the provisions of paragraph (c) of subdivision one of section forty-four hundred three of the public health law, or penalize providers for unfavorable case mix so as to jeopardize the quality of or insureds' appropriate access to medically necessary services; provided, however, that payment at less than prevailing fee for service rates or capitationshall not be deemed or presumed prima facie to jeopardize quality or access. (g)(1) No insurer shall implement an adverse reimbursement change to a contract with a health care professional that is otherwise permitted by the contract, unless, prior to the effective date of the change, the insurer gives the health care professional with whom the insurer has directly contracted and who is impacted by the adverse reimbursement change, at least ninety days written notice of the change. If the contracting health care professional objects to the change that is the subject of the notice by the insurer, the health care professional may, within thirty days of the date of the notice, give written notice to the insurer to terminate his or her contract with the insurer effective upon the implementation date of the adverse reimbursement change. For the purposes of this subsection, the term "adverse reimbursement change" shall mean a proposed change that could reasonably be expected to have a material adverse impact on the aggregate level of payment to a health care professional, and the term "health care professional" shall mean a health care professional licensed, registered or certified pursuant to title eight of the education law. The notice provisions required by this subsection shall not apply where: (A) such change is otherwise required by law, regulation or applicable regulatory authority, or is required as a result of changes in fee schedules, reimbursement methodology or payment policies established by a government agency or by the American Medical Association's current procedural terminology (CPT) codes, reporting guidelines and conventions; or (B) such change is expressly provided for under the terms of the contract by the inclusion of or reference to a specific fee or fee schedule, reimbursement methodology or payment policy indexing mechanism. (2) Nothing in this subsection shall create a private right of action on behalf of a health care professional against an insurer for violations of this subsection. * (h) Any contract provision, written policy or written procedure in violation of this section shall be deemed to be void and unenforceable. * NB Effective until December 16, 2010 * (h) No corporation or insurer organized or licensed under this chapter which provides coverage for prescription drugs shall require, or enter into a contract which permits, a copayment which exceeds the usual and customary cost of such prescribed drug. * NB Effective December 16, 2010 * (i) If a contract between a corporation and a hospital is not renewed or is terminated by either party, the parties shall continue to abide by the terms of such contract, including reimbursement terms, for a period of two months from the effective date of termination or, in the case of a non-renewal, from the end of the contract period. Notice shall be provided to all subscribers potentially affected by such termination or non-renewal within fifteen days after commencement of the two-month period. The commissioner of health shall have the authority to waive the two-month period upon the request of either party to a contract that is being terminated for cause. This subsection shall not apply where both parties mutually agree in writing to the termination or non-renewal and the corporation provides notice to the subscriber at least thirty days in advance of the date of contract termination. * NB Effective until December 16, 2010 * (i) Any contract provision, written policy or written procedure in violation of this section shall be deemed to be void and unenforceable. * NB Effective December 16, 2010 * (j) If a contract between a corporation and a hospital is not renewed or is terminated by either party, the parties shall continue toabide by the terms of such contract, including reimbursement terms, for a period of two months from the effective date of termination or, in the case of a non-renewal, from the end of the contract period. Notice shall be provided to all subscribers potentially affected by such termination or non-renewal within fifteen days after commencement of the two-month period. The commissioner of health shall have the authority to waive the two-month period upon the request of either party to a contract that is being terminated for cause. This subsection shall not apply where both parties mutually agree in writing to the termination or non-renewal and the corporation provides notice to the subscriber at least thirty days in advance of the date of contract termination. * NB Effective December 16, 2010 and Repealed June 30, 2011