Sec. 400.5. Responsibilities of health care plans for disputes regarding emergency services and surprise bills

(a) Upon receipt of a claim for emergency services, including inpatient services that follow an emergency room visit, rendered by a non-participating physician or a non-participating hospital, a health care plan shall:

(1)

(i) Pay the claim, within the timeframes established in Insurance Law section 3224-a, in an amount that it deems reasonable for the services rendered by the non-participating physician or non-participating hospital that had not previously entered into a participating provider agreement with the health care plan, except for the insured’s co-payment, coinsurance or deductible, if any; or

(ii) in disputes involving a non-participating hospital that had previously entered into a participating provider agreement with the health care plan, pay the claim, within the timeframes established in Insurance Law section 3224-a, in an initial amount that is at least 25 percent greater than the amount the health care plan would have paid for the claim had the hospital been in-network, based on the most recent participating provider agreement between the health care plan and the non-participating hospital, except for the insured’s co-payment, coinsurance or deductible, if any. In the event the prior participating provider agreement between the health care plan and the non-participating hospital expired more than 12 months prior to the payment of the disputed claim, the payment amount shall be adjusted based upon the annual medical consumer price index, compounded for each year subsequent to the year the contract terminated up until the year the claim is paid. If a health care plan believes that this initial payment amount to a non-participating hospital with which it had previously entered into a participating provider agreement is not reasonable, it may submit a dispute to the superintendent for review by an IDRE, as provided in section 400.7 of this Part, and propose an amount it deems reasonable, provided that the health care plan:

(a) notifies the non-participating hospital of its intent to submit the dispute to the superintendent, together with the health care plan’s best and final offer and an explanation of the calculation, including the aggregation or any other methodology used by the health care plan to develop its best and final offer;

(b) provides the non-participating hospital with 15 business days to respond to the health care plan with the non-participating hospital’s best and final offer before submitting the dispute to the superintendent;

(c) includes its best and final offer and the non-participating hospital’s best and final offer, if any, in its submission of the dispute to the superintendent; and

(d) notifies the non-participating hospital of the dispute at the time of the submission to the superintendent; and

(iii) not be precluded from attempting to negotiate the reimbursement amount with the non-participating physician or non-participating hospital within the timeframes established in Insurance Law section 3224-a;

(2) if the claim is submitted by the non-participating physician or non-participating hospital, or if payment is made to the non-participating physician or non-participating hospital, provide notice to the non-participating physician or non-participating hospital describing how to initiate the independent dispute resolution process;

(3) if the health care plan pays an amount less than the non-participating physician’s or non-participating hospital’s charge, provide the insured with notice, included on or in conjunction with, an explanation of benefits, which shall:

(i) explain that the insured shall incur no greater out-of-pocket costs for the services than the insured would have incurred with a participating physician or participating hospital;

(ii) explain that the insured’s cost-sharing may increase in the event the IDRE determines that the health care plan must pay additional amounts for the services of the non-participating physician or non-participating hospital; and

(iii) direct the insured to contact the health care plan in the event that the non-participating physician or non-participating hospital bills the insured for the out-of-network service other than the insured’s in-network copayment, coinsurance, or deductible; and

(4) pay the amount set forth in subparagraph (i) or (ii) of paragraph (1) of this subdivision directly to the non-participating physician or non-participating hospital if an insured assigns benefits to the non-participating physician or non-participating hospital.

(b) Upon receipt of a claim for a surprise bill that is submitted with an assignment of benefits form, or that the health care plan otherwise determines is a surprise bill, the health care plan shall:

(1) Pay the non-participating physician or non-participating referred health care provider the billed amount or attempt to negotiate reimbursement with the non-participating physician or non-participating referred health care provider. If the health care plan’s attempts to negotiate reimbursement for the health care services provided by the non-participating physician or non-participating referred health care provider do not result in a resolution of the payment dispute, the health care plan shall pay the non-participating physician or non-participating referred health care provider an amount the health care plan determines is reasonable for the health care services rendered, except for the insured’s copayment, coinsurance or deductible, in accordance with the timeframes established in Insurance Law section 3224-a.

(2) Provide notice to the non-participating physician or, as applicable, to the non-participating referred health care provider, describing how to initiate the independent dispute resolution process.

(3) Provide the insured with notice, included on or in conjunction with, an explanation of benefits, which shall:

(i) explain that the insured shall incur no greater out-of-pocket costs for the services than the insured would have incurred with a participating physician or health care provider;

(ii) explain that the insured’s cost-sharing may increase in the event the IDRE determines that the health care plan must pay additional amounts for the services of the non-participating physician or non-participating referred health care provider; and

(iii) direct the insured to contact the health care plan in the event that the non-participating physician or non-participating referred health care provider bills the insured for the out-of-network service other than the insured’s in-network copayment, coinsurance, or deductible.

(c) Upon receipt of a claim for the services of a non-participating physician or a non-participating referred health care provider that could be a surprise bill and that is not submitted with an assignment of benefits form, the health care plan shall provide the insured with notice, included on or in conjunction with, an explanation of benefits, which shall:

(1) advise the insured that the claim could be a surprise bill;

(2) explain that if the claim is a surprise bill and the insured submits an assignment of benefits form, the insured will incur no greater out-of-pocket costs for the services than the insured would have incurred with a participating physician or health care provider; and

(3) direct the insured to contact the health care plan or visit the health care plan’s website for additional information regarding surprise bills and to obtain an assignment of benefits form for surprise bills.

(d) If the health care plan receives a claim for services of a non-participating health care provider that could be a surprise bill that is not submitted with an assignment of benefits form and the health care plan denies the claim because the health care provider is a non-participating provider, the health care plan shall, upon receipt of the assignment of benefits form, comply with the requirements of subdivision (b) of this section.

(e) If the health care plan receives a claim for services of a non-participating health care provider that is not submitted with an assignment of benefits form and pays the claim, the health care plan shall, upon receipt of the assignment of benefits form, determine whether it will attempt to negotiate additional reimbursement with the non-participating physician or non-participating referred health care provider. After receipt of the assignment of benefits form, if the health care plan attempts to negotiate additional reimbursement for the surprise bill and the attempts do not result in a resolution of the payment dispute or the health care plan does not attempt to negotiate the additional reimbursement for the surprise bill, the health care plan shall:

(1) Pay the non-participating physician or non-participating referred health care provider any additional amount the health care plan determines is reasonable for the health care services rendered, except for the insured’s copayment, coinsurance or deductible, in accordance with the timeframes established in Insurance Law section 3224-a; and

(2) Provide the insured with notice that shall:

(i) explain that the insured will incur no greater out-of-pocket costs for the services than the insured would have incurred with a participating physician or health care provider;

(ii) explain that the insured’s cost-sharing may increase in the event the IDRE determines that the health care plan must pay additional amounts for the services of the non-participating physician or non-participating referred health care provider;

(iii) explain that if the health care plan paid the insured directly, then the insured must remit that payment to the non-participating physician or non-participating referred health care provider;

(iv) direct the insured to contact the health care plan in the event that the non-participating physician or non-participating referred health care provider bills the insured for the out-of-network service other than the insured’s in-network copayment, coinsurance, or deductible; and

(v) direct the insured to the health care plan’s website for additional information regarding surprise bills.

(f) A health care plan shall prominently post on its website the information in paragraphs (1)-(5) of this subdivision and include in disclosure materials provided to insureds pursuant to Insurance Law sections 3217-a(a), 4324(a) and Public Health Law section 4408(1) the information in paragraphs (1)-(4) of this subdivision, as follows:

(1) a description of what constitutes a surprise bill;

(2) a description of the independent dispute resolution process;

(3) an assignment of benefits form for surprise bills;

(4) the health care plan’s designated electronic and mailing address where the assignment of benefits form can be submitted; and

(5) information on how an insured, non-participating physician, non-participating hospital, or, as applicable, a non-participating referred health care provider, may submit a dispute to an IDRE.

(g) An assignment of benefits form for surprise bills shall be in a form prescribed by the superintendent.

(h) A health care plan shall ensure that the insured shall incur no greater out-of-pocket costs for the services than the insured would have incurred with a participating physician, participating hospital, or participating health care provider:

(1) for emergency services, including inpatient services that follow an emergency room visit; and

(2) for a dispute involving a surprise bill when the insured has assigned benefits to a non-participating physician or a non-participating referred health care provider.

(i) If the IDRE directs the health care plan to engage in negotiations with the non-participating physician, non-participating hospital, or non-participating referred health care provider the health care plan shall do so in good faith. If a settlement is reached, the health care plan shall notify the IDRE within two business days of the settlement and shall make any additional payment to the non-participating physician, non-participating hospital, or non-participating referred health care provider within the timeframes prescribed in Insurance Law section 3224-a. If a settlement is not reached or the parties agree that a settlement is not attainable, the health care plan shall promptly notify the IDRE no later than the end of the time period granted by the IDRE for negotiation.

(j) If the IDRE issues a determination in favor of the non-participating physician, non-participating hospital, or non-participating referred health care provider, the health care plan shall pay the non-participating physician, non-participating hospital, or, as applicable, the non-participating referred health care provider, any additional amount owed within 30 days from the date of the determination.

(k) A health care plan shall designate, and inform the superintendent of, at least one officer and one staff member knowledgeable about the independent dispute resolution process who shall be responsible for oversight of the health care plan’s compliance with the independent dispute resolution process. The health care plan shall make at least one staff person available during normal business hours for not less than 40 hours per week. The health care plan shall respond to all inquiries from the superintendent relating to the dispute resolution process within three business days.

(l)

(1) If a health care plan receives an assignment of benefits form for a surprise bill and determines that the bill is not a surprise bill, the health care plan shall provide written notice of such determination. The notice shall include the procedures for filing a grievance under Insurance Law section 4802 or Public Health Law section 4408-a and information on how to file a complaint with the superintendent.

(2) If a health care plan makes a determination on a grievance disputing that a bill is a surprise bill, the health care plan shall comply with the Insurance Law section 4802 or Public Health Law section 4408-a grievance requirements.