Bill Text: NY A01502 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to imposing liability on insurers for failure to approve coverage for inpatient mental health treatment.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2016-01-06 - referred to judiciary [A01502 Detail]
Download: New_York-2015-A01502-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
1502
2015-2016 Regular Sessions
I N A S S E M B L Y
January 12, 2015
___________
Introduced by M. of A. ZEBROWSKI, HOOPER -- 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:
1 Section 1. The general obligations law is amended by adding two new
2 sections 11-108 and 11-109 to read as follows:
3 S 11-108. ACCOUNTABILITY OF HEALTH CARE ORGANIZATIONS. 1. DEFINITIONS.
4 FOR PURPOSES OF THIS SECTION AND SECTION 11-109 OF THIS TITLE, UNLESS
5 THE CONTEXT CLEARLY REQUIRES OTHERWISE:
6 (A) "HEALTH CARE ORGANIZATION" MEANS AN ENTITY, OTHER THAN A HEALTH
7 CARE PROVIDER, THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH
8 CARE SERVICES, INCLUDING BUT NOT LIMITED TO:
9 (I) A HEALTH MAINTENANCE ORGANIZATION LICENSED PURSUANT TO ARTICLE
10 FORTY-THREE OF THE INSURANCE LAW OR CERTIFIED PURSUANT TO ARTICLE
11 FORTY-FOUR OF THE PUBLIC HEALTH LAW,
12 (II) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR
13 OF THE PUBLIC HEALTH LAW, OR
14 (III) AN ACCIDENT OR HEALTH INSURANCE CORPORATION SUBJECT TO THE
15 INSURANCE LAW.
16 NO ENTITY OR PERSON SHALL BE DEEMED TO BE A HEALTH CARE ORGANIZATION
17 BECAUSE THE ENTITY OR PERSON PROCURES OR PAYS FOR HEALTH COVERAGE
18 THROUGH AN ENTITY ACTING UNDER THE INSURANCE LAW OR ARTICLE FORTY-FOUR
19 OF THE PUBLIC HEALTH LAW.
20 (B) "HEALTH CARE PROVIDER" MEANS AN ENTITY LICENSED OR CERTIFIED UNDER
21 ARTICLE TWENTY-EIGHT OR THIRTY-SIX OF THE PUBLIC HEALTH LAW, A PREFERRED
22 PROVIDER ORGANIZATION, A PARTICIPATING ENTITY THROUGH WHICH A HEALTH
23 MAINTENANCE ORGANIZATION OFFERS HEALTH SERVICES UNDER ARTICLE FORTY-FOUR
24 OF THE PUBLIC HEALTH LAW, AN ENTITY LICENSED OR CERTIFIED UNDER ARTICLE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00524-01-5
A. 1502 2
1 SIXTEEN, THIRTY-ONE OR THIRTY-TWO OF THE MENTAL HYGIENE LAW, A HEALTH
2 CARE PRACTITIONER LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF
3 THE EDUCATION LAW, OR A PROVIDER OF PHARMACEUTICAL PRODUCTS OR SERVICES
4 OR DURABLE MEDICAL EQUIPMENT.
5 2. (A) WHENEVER A HEALTH CARE ORGANIZATION OR HEALTH INSURER FAILS OR
6 REFUSES TO APPROVE, PROVIDE, ARRANGE FOR, OR PAY FOR, IN A TIMELY
7 MANNER, THE ADMISSION OF A COVERED PERSON TO A MENTAL HEALTH CARE FACIL-
8 ITY WHERE SUCH ADMISSION IS RECOMMENDED BY A HEALTH CARE PROFESSIONAL
9 WHO IS PROVIDING TREATMENT TO SUCH PERSON, TO THE EXTENT IT IS CONTRAC-
10 TUALLY OR LEGALLY OBLIGATED TO DO SO, IT SHALL BE LIABLE FOR ANY
11 PERSONAL INJURY, DEATH OR DAMAGES TO ANY PERSON WHICH ARE CAUSED BY THE
12 DELAY, FAILURE OR REFUSAL.
13 (B) A HEALTH CARE ORGANIZATION SHALL BE LIABLE UNDER THIS SECTION,
14 UNDER OTHERWISE APPLICABLE RULES OF TORT AND CONTRACT LIABILITY, INCLUD-
15 ING BUT NOT LIMITED TO RULES RELATING TO AGENCY, VICARIOUS LIABILITY,
16 AND JOINT AND SEVERAL LIABILITY, FOR ANY ACT BY AN AGENT, CONTRACTOR,
17 PARTICIPATING ENTITY, OR HEALTH CARE PROVIDER, FOR WHICH THE HEALTH CARE
18 ORGANIZATION WOULD BE LIABLE IF IT WERE COMMITTED BY THE HEALTH CARE
19 ORGANIZATION.
20 3. THE FAILURE OF THE PERSON, OR OF ANY OTHER PERSON ACTING ON THE
21 PERSON'S BEHALF, TO SEEK AN ALTERNATIVE PROVIDER OF OR TO PAY FOR THE
22 HEALTH CARE SERVICE SHALL NOT DIMINISH THE HEALTH CARE ORGANIZATION'S
23 LIABILITY OR CONSTITUTE CULPABLE CONDUCT FOR THE PURPOSES OF SECTION
24 FOURTEEN HUNDRED ELEVEN OF THE CIVIL PRACTICE LAW AND RULES.
25 4. NOTHING IN THIS SECTION SHALL LIMIT ANY OTHER RIGHT, REMEDY OR
26 CAUSE OF ACTION THAT ANY PERSON MAY OTHERWISE HAVE.
27 5. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND A
28 HEALTH CARE PROVIDER SHALL:
29 (A) DIRECTLY OR INDIRECTLY REQUIRE A HEALTH CARE PROVIDER TO INDEMNIFY
30 OR HOLD HARMLESS THE HEALTH CARE ORGANIZATION FOR ANY LIABILITY RESULT-
31 ING FROM THE HEALTH CARE ORGANIZATION'S ACTS OR OMISSIONS; OR
32 (B) WAIVE, LIMIT, OR DELEGATE THE LIABILITY OF THE HEALTH CARE ORGAN-
33 IZATION UNDER THIS SECTION TO ANY HEALTH CARE PROVIDER.
34 6. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH CARE ORGANIZATION AND ANY
35 PERSON SHALL WAIVE OR LIMIT ANY LIABILITY OF THE HEALTH CARE ORGANIZA-
36 TION UNDER THIS SECTION TO THE PERSON.
37 7. IF THE TIME IN WHICH A PLAINTIFF COULD HAVE COMMENCED AN ACTION FOR
38 PROFESSIONAL MALPRACTICE FOR THE ACT, ERROR OR OMISSION COMPLAINED OF
39 HAS EXPIRED PRIOR TO THE COMMENCEMENT OF AN ACTION BROUGHT PURSUANT TO
40 THIS SECTION AGAINST A HEALTH CARE ORGANIZATION, THE DEFENDANT IN SAID
41 ACTION SHALL BE BARRED FROM COMMENCING A THIRD-PARTY ACTION AGAINST A
42 PERSON NOT A PARTY WHO IS OR MAY BE LIABLE TO THAT DEFENDANT FOR ALL OR
43 PART OF THE PLAINTIFF'S CLAIM AGAINST THE DEFENDANT AND AGAINST WHOM THE
44 PLAINTIFF CANNOT COMMENCE AN ACTION FOR PROFESSIONAL MALPRACTICE DUE TO
45 THE EXPIRATION OF THE STATUTE OF LIMITATIONS PRIOR TO THE COMMENCEMENT
46 OF THE ACTION AGAINST THE DEFENDANT.
47 8. A HEALTH CARE ORGANIZATION SHALL EXERCISE REASONABLE CARE:
48 (A) WHEN MAKING DECISIONS WHICH AFFECT THE MENTAL HEALTH CARE OF AN
49 ENROLLEE; AND
50 (B) IN SELECTING AND EXERCISING INFLUENCE OR CONTROL OVER ITS EMPLOY-
51 EES, AGENTS, OSTENSIBLE AGENTS, OR REPRESENTATIVES WHO ARE ACTING ON ITS
52 BEHALF, RESPECTING DECISIONS WHICH MAY AFFECT THE QUALITY OF THE MENTAL
53 HEALTH CARE SERVICE PROVIDED TO ITS ENROLLEES.
54 9. THIS SECTION SHALL NOT BE CONSTRUED TO DIMINISH ANY CONTRACTUAL OR
55 LEGAL OBLIGATION OF THE HEALTH CARE ORGANIZATION, NOR TO CREATE AN OBLI-
56 GATION ON THE PART OF THE HEALTH CARE ORGANIZATION TO PROVIDE ANY INPA-
A. 1502 3
1 TIENT MENTAL HEALTH CARE SERVICE TO AN ENROLLEE THAT IS NOT A COVERED
2 BENEFIT.
3 S 11-109. PROTECTION OF HEALTH CARE PROVIDERS. 1. NO HEALTH CARE
4 ORGANIZATION OR HEALTH CARE PROVIDER SHALL, BY CONTRACT, POLICY OR
5 PROCEDURE:
6 (A) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM FILING A
7 COMPLAINT;
8 (B) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM MAKING A REPORT
9 OR COMMENTING TO THE APPROPRIATE GOVERNMENT AGENCY REGARDING THE POLI-
10 CIES OR PRACTICES OF THE ORGANIZATION WHICH MAY NEGATIVELY AFFECT THE
11 QUALITY OF OR ACCESS TO HEALTH CARE SERVICES; OR
12 (C) PROHIBIT OR RESTRICT ANY HEALTH CARE PROVIDER FROM DISCLOSING OR
13 COMMENTING ON POLICIES OR PRACTICES OF THE ORGANIZATION WHICH MAY NEGA-
14 TIVELY AFFECT THE QUALITY OF OR ACCESS TO HEALTH CARE SERVICES TO THE
15 PUBLIC.
16 THIS SUBDIVISION SHALL NOT BE CONSTRUED TO PERMIT A HEALTH CARE
17 PROVIDER TO DISCLOSE ANY INFORMATION REGARDING A PATIENT WHICH WOULD
18 OTHERWISE BE DEEMED CONFIDENTIAL OR PRIVILEGED, OR WHICH SHOULD NOT BE
19 DISCLOSED OR DISCUSSED ACCORDING TO LAW OR REASONABLE PROFESSIONAL STAN-
20 DARDS.
21 2. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL TERMINATE
22 A CONTRACT OR EMPLOYMENT OF A HEALTH CARE PROVIDER, OR REFUSE TO RENEW
23 SUCH A CONTRACT, OR PENALIZE A HEALTH CARE PROVIDER OR REDUCE OR LIMIT
24 THE COMPENSATION OF A HEALTH CARE PROVIDER SOLELY BECAUSE A HEALTH CARE
25 PROVIDER HAS:
26 (A) ADVOCATED FOR, RECOMMENDED OR PROVIDED MENTAL HEALTH CARE SERVICE
27 TO A PATIENT, TO WHICH THE PATIENT WAS ENTITLED BY CONTRACT OR LAW;
28 (B) TAKEN ANY ACTION UNDER SUBDIVISION ONE OF THIS SECTION;
29 (C) APPEALED OR ASSISTED IN APPEALING A DECISION OF THE HEALTH CARE
30 ORGANIZATION RELATING TO THE PROVISION OF MENTAL HEALTH CARE SERVICES;
31 OR
32 (D) REQUESTED A HEARING OR REVIEW TO WHICH THE PROVIDER WAS ENTITLED.
33 3. NO HEALTH CARE ORGANIZATION OR HEALTH CARE PROVIDER SHALL APPLY ANY
34 INCENTIVE, WHETHER MONETARY OR OTHERWISE, TO A HEALTH CARE PROVIDER
35 INTENDED OR HAVING THE EFFECT OF INDUCING THE HEALTH CARE PROVIDER TO
36 DELAY, FAIL OR REFUSE TO PROVIDE ANY INPATIENT MENTAL HEALTH CARE
37 SERVICE TO WHICH A PATIENT IS ENTITLED BY CONTRACT OR LAW.
38 S 2. Section 4410 of the public health law is amended by adding a new
39 subdivision 5 to read as follows:
40 5. NO CONTRACT OR AGREEMENT BETWEEN A HEALTH MAINTENANCE ORGANIZATION
41 OR ITS COMPREHENSIVE HEALTH SERVICES PLAN AND ANY HEALTH CARE PROVIDER
42 SHALL DELEGATE THE LIABILITY OF THE HEALTH MAINTENANCE ORGANIZATION TO
43 ANY HEALTH CARE PROVIDER OR SHALL REQUIRE THE HEALTH CARE PROVIDER TO
44 INDEMNIFY OR HOLD HARMLESS THE ORGANIZATION OR PLAN FOR ANY LIABILITY
45 THE ORGANIZATION OR PLAN MAY INCUR PURSUANT TO THE PROVISIONS OF SECTION
46 11-108 OR 11-109 OF THE GENERAL OBLIGATIONS LAW.
47 S 3. This act shall take effect on the sixtieth day after it shall
48 have become a law.
