Enacts provisions relating to collective negotiations by health care providers with certain health care plans; applies to health benefit plans that provide benefits for medical or surgical expenses incurred as a result of a health condition, accident or sickness, including an individual, group, blanket or franchise insurance policy or insurance agreement offered by certain enumerated entities.
TITLE OF BILL: An act to amend the public health law, in relation to requirements for collective negotiations by health care providers with certain health benefit plans
PURPOSE: This bill is designed to restore fairness in the contracting process between health care providers and large managed care plans by allowing such providers to join together to negotiate contract provisions. This legislation would not authorize strikes of health benefit plans by health care providers.
SUMMARY OF PROVISIONS:
Section 1 is a statement of legislative intent that states that the legislature finds it appropriate and necessary to authorize collective negotiations on patient care issues and on fee-related and other issues where it determines that health plans have an undue advantage negotiating the terms of contracts with health care providers. The legislative intent clarifies that the act is not intended to apply or affect collective bargaining relationships involving health care providers who are employees or rights relating to collective bargaining arising under applicable federal/state collective bargaining statutes.
Section 2 cites the bill as the Health Care Consumer and Provider Protection Act.
Section 3 amends article 49 to the public health law by adding a new title III titled Collective Negotiations by Health Care Providers with Health Care Plans.
This legislation adds a new Article 49-A to the public health law to authorize collective bargaining for independent contractor health care providers including physicians. This bill would create a system under which the state would closely monitor those negotiations, and any negotiations involving fee-related matters would only be permitted when an individual managed care plan controls a substantial share of the managed care market. The Commissioner of Health would be authorized to approve the health care providers' representative request to negotiate based upon the benefits to be achieved for providers and consumers of health services, and is required to review any offer submitted to the health care providers' representative prior to sharing with affected health care providers. The legislation would also create a mechanism for resolving disputes when there is an impasse or when the health plan refuses to negotiate. The bill would also direct the Commissioner of Health with input from the Superintendent of Insurance and the Attorney General to approve any final agreement as well as monitor the implemented agreements to ensure continued compliance with the law. Importantly, this legislation would not authorize strikes or concerted action by health care providers in response to negotiations with health care plans.
Section 4. This act shall take effect 120 days after it shall have become a law, provided that the department of health may promulgate and establish any regulations pursuant hereto prior to the effective date.
JUSTIFICATION: Currently, federal antitrust laws prohibit individual health care providers from collectively negotiating any provisions of contracts they sign with managed care entities. This bill would allow health care providers in New York State to conduct some collective negotiations by creating a system under which the state would closely monitor those negotiations, facilitate resolution of negotiation impasses, and actively monitor implementation of agreements. Negotiations involving fee-related matters would be prohibited unless an individual managed care plan controls a substantial share of the managed care market.
Giving health care providers greater ability to advocate for patients in contract negotiations is critical since large health maintenance organizations control huge shares of the health insurance market, both in New York and across the country. In the last few years we have seen the mergers of United Healthcare and Oxford, MVP and Preferred Care, and Wellpoint with Wellchoice (Empire). As of March 2008, almost 75% of the enrollees in managed care plans in New York State were enrolled in just five health plans (GM/HIP, United/Oxford/Amerchoice, Excellus, Empire and MVP/Preferred Care). We have also seen an emerging trend of longtime not-for-profit health insurance companies such as Empire and HIP seeking to convert to for-profit status.
Due to the current imbalance of negotiating power in favor of the managed care plans, physicians and other health care providers are offered take-it-or-leave-it contracts by health plans that significantly hamper their ability to provide quality patient care. These contracts permit burdensome processes and unjustifiably long wait times for obtaining pre-authorization to provide needed patient care; impose limitations on whom a physician or other health care provider may refer a patient for necessary care; permit demands for refunds of payments long after the time that such payments were originally made; permit health plans to make major changes to key elements of a contract without physician or other health care provider consent; and cede to physicians and other health care providers the legal consequences for patients harmed by health plan utilization review decisions.
This bill, by allowing independent contractor physicians and health care providers to conduct some collective negotiations while being closely monitored by the state, would give physicians and health care providers greater ability to advocate for patients in contract negotiations. This bill would create a system under which the state would closely monitor those negotiations, and any negotiations involving fee-related matters would only be permitted when an individual managed care plan controls a substantial share of the managed care market. This legislation would not authorize strikes or boycotts of health benefit plans by physicians.
LEGISLATIVE HISTORY: 2000: A.9484-A -- Referred to Health/Senate Finance 2001-2002: A.5466-- Reported to Third Reading Calendar
2003-2004: A.1317-A Reported to Ways & Means 2005-2006: A.6458 Reported to Ways & Means 2007-2008 A.2177 Reported to Ways & Means 2009-2010 A.4301-- Reported to Ways & Means 2011-2012: A.2474A--Reported to Ways and Means
FISCAL IMPLICATIONS: None to the State. The bill would provide the legal basis for an appropriation of funds to implement the provisions of the bill.
EFFECTIVE DATE: 120 days after it shall have become a law, provided that the department of health may promulgate and establish any regulations pursuant hereto prior to the effective date.
STATE OF NEW YORK ________________________________________________________________________ 3690 2013-2014 Regular Sessions IN SENATE February 11, 2013 ___________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, in relation to requirements for collective negotiations by health care providers with certain health benefit plans THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Statement of legislative intent. The legislature finds that collective negotiation by competing health care providers for the terms and conditions of contracts with health plans can result in beneficial results for health care consumers. The legislature further finds instances where health plans dominate the market to such a degree that fair and adequate negotiations between health care providers and the plans are adversely affected, so that it is necessary and appropriate to provide for a system of collective action on behalf of health care providers. Consequently, the legislature finds it appropriate and neces- sary to displace competition with regulation of health plan-provider agreements and authorize collective negotiations on the terms and condi- tions of the relationship between health care plans and health care providers so the imbalances between the two will not result in adverse conditions of health care. This act is not intended to apply to or affect in any respect collective bargaining relationships which arise under applicable federal or state collective bargaining statutes. S 2. This act shall be known and may be cited as the "health care consumer and provider protection act". S 3. Article 49 of the public health law is amended by adding a new title III to read as follows: TITLE III COLLECTIVE NEGOTIATIONS BY HEALTH CARE PROVIDERS WITH HEALTH CARE PLANS SECTION 4920. DEFINITIONS.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08691-01-3 S. 3690 2
4921. NON-FEE RELATED COLLECTIVE NEGOTIATION AUTHORIZED. 4922. FEE RELATED COLLECTIVE NEGOTIATION. 4923. COLLECTIVE NEGOTIATION REQUIREMENTS. 4924. REQUIREMENTS FOR HEALTH CARE PROVIDERS' REPRESENTATIVE. 4925. CERTAIN COLLECTIVE ACTION PROHIBITED. 4926. FEES. 4927. MONITORING OF AGREEMENTS. 4928. CONFIDENTIALITY. 4929. SEVERABILITY AND CONSTRUCTION. S 4920. DEFINITIONS. FOR PURPOSES OF THIS TITLE: 1. "HEALTH CARE PLAN" MEANS AN ENTITY (OTHER THAN A HEALTH CARE PROVIDER) THAT APPROVES, PROVIDES, ARRANGES FOR, OR PAYS FOR HEALTH CARE SERVICES, INCLUDING BUT NOT LIMITED TO: (A) A HEALTH MAINTENANCE ORGANIZATION LICENSED PURSUANT TO ARTICLE FORTY-THREE OF THE INSURANCE LAW OR CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF THIS CHAPTER; (B) ANY OTHER ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF THIS CHAPTER; OR (C) AN INSURER OR CORPORATION SUBJECT TO THE INSURANCE LAW. 2. "PERSON" MEANS AN INDIVIDUAL, ASSOCIATION, CORPORATION, OR ANY OTHER LEGAL ENTITY. 3. "HEALTH CARE PROVIDERS' REPRESENTATIVE" MEANS A THIRD PARTY WHO IS AUTHORIZED BY HEALTH CARE PROVIDERS TO NEGOTIATE ON THEIR BEHALF WITH HEALTH CARE PLANS OVER CONTRACTUAL TERMS AND CONDITIONS AFFECTING THOSE HEALTH CARE PROVIDERS. 4. "STRIKE" MEANS A WORK STOPPAGE IN PART OR IN WHOLE, DIRECT OR INDI- RECT, BY A HEALTH CARE PROVIDER OR HEALTH CARE PROVIDERS TO GAIN COMPLI- ANCE WITH DEMANDS MADE ON A HEALTH CARE PLAN. 5. "SUBSTANTIAL MARKET SHARE IN A BUSINESS LINE" EXISTS IF A HEALTH CARE PLAN'S MARKET SHARE OF A BUSINESS LINE WITHIN THE GEOGRAPHIC AREA FOR WHICH A NEGOTIATION HAS BEEN APPROVED BY THE COMMISSIONER, ALONE OR IN COMBINATION WITH THE MARKET SHARES OF AFFILIATES, EXCEEDS EITHER TEN PERCENT OF THE TOTAL NUMBER OF COVERED LIVES IN THAT SERVICE AREA FOR SUCH BUSINESS LINE OR TWENTY-FIVE THOUSAND LIVES, OR IF THE COMMISSIONER DETERMINES THE MARKET SHARE OF THE INSURER IN THE RELEVANT INSURANCE PRODUCT AND GEOGRAPHIC MARKETS FOR THE SERVICES OF THE PROVIDERS SEEKING TO COLLECTIVELY NEGOTIATE SIGNIFICANTLY EXCEEDS THE COUNTERVAILING MARKET SHARE OF THE PROVIDERS ACTING INDIVIDUALLY. 6. "HEALTH CARE PROVIDER" MEANS A PERSON WHO IS LICENSED, CERTIFIED, OR REGISTERED PURSUANT TO TITLE EIGHT OF THE EDUCATION LAW AND WHO PRAC- TICES AS A HEALTH CARE PROVIDER AS AN INDEPENDENT CONTRACTOR AND/OR WHO IS AN OWNER, OFFICER, SHAREHOLDER, OR PROPRIETOR OF A HEALTH CARE PROVIDER. A HEALTH CARE PROVIDER UNDER TITLE EIGHT OF THE EDUCATION LAW WHO PRACTICES AS AN EMPLOYEE OF A HEALTH CARE PROVIDER SHALL NOT BE DEEMED A HEALTH CARE PROVIDER FOR PURPOSES OF THIS TITLE. S 4921. NON-FEE RELATED COLLECTIVE NEGOTIATION AUTHORIZED. 1. HEALTH CARE PROVIDERS PRACTICING WITHIN THE GEOGRAPHIC AREA FOR WHICH A NEGOTI- ATION HAS BEEN APPROVED BY THE COMMISSIONER MAY MEET AND COMMUNICATE FOR THE PURPOSE OF COLLECTIVELY NEGOTIATING THE FOLLOWING TERMS AND CONDI- TIONS OF PROVIDER CONTRACTS WITH THE HEALTH CARE PLAN: (A) THE DETAILS OF THE UTILIZATION REVIEW PLAN AS DEFINED PURSUANT TO SUBDIVISION TEN OF SECTION FORTY-NINE HUNDRED OF THIS ARTICLE AND SUBSECTION (J) OF SECTION FOUR THOUSAND NINE HUNDRED OF THE INSURANCE LAW; (B) COVERAGE PROVISIONS; HEALTH CARE BENEFITS; BENEFIT MAXIMUMS, INCLUDING BENEFIT LIMITATIONS; AND EXCLUSIONS OF COVERAGE;S. 3690 3
(C) THE DEFINITION OF MEDICAL NECESSITY; (D) THE CLINICAL PRACTICE GUIDELINES USED TO MAKE MEDICAL NECESSITY AND UTILIZATION REVIEW DETERMINATIONS; (E) PREVENTIVE CARE AND OTHER MEDICAL MANAGEMENT PRACTICES; (F) DRUG FORMULARIES AND STANDARDS AND PROCEDURES FOR PRESCRIBING OFF-FORMULARY DRUGS; (G) RESPECTIVE PHYSICIAN LIABILITY FOR THE TREATMENT OR LACK OF TREAT- MENT OF COVERED PERSONS; (H) THE DETAILS OF HEALTH CARE PLAN RISK TRANSFER ARRANGEMENTS WITH PROVIDERS; (I) PLAN ADMINISTRATIVE PROCEDURES, INCLUDING METHODS AND TIMING OF HEALTH CARE PROVIDER PAYMENT FOR SERVICES; (J) PROCEDURES TO BE UTILIZED TO RESOLVE DISPUTES BETWEEN THE HEALTH CARE PLAN AND HEALTH CARE PROVIDERS; (K) PATIENT REFERRAL PROCEDURES INCLUDING, BUT NOT LIMITED TO, THOSE APPLICABLE TO OUT-OF-NETWORK REFERRALS; (L) THE FORMULATION AND APPLICATION OF HEALTH CARE PROVIDER REIMBURSE- MENT PROCEDURES; (M) QUALITY ASSURANCE PROGRAMS; (N) THE PROCESS FOR RENDERING UTILIZATION REVIEW DETERMINATIONS INCLUDING: ESTABLISHMENT OF A PROCESS FOR RENDERING UTILIZATION REVIEW DETERMINATIONS WHICH SHALL, AT A MINIMUM, INCLUDE: WRITTEN PROCEDURES TO ASSURE THAT UTILIZATION REVIEWS AND DETERMINATIONS ARE CONDUCTED WITHIN THE TIMEFRAMES ESTABLISHED IN THIS ARTICLE; PROCEDURES TO NOTIFY AN ENROLLEE, AN ENROLLEE'S DESIGNEE AND/OR AN ENROLLEE'S HEALTH CARE PROVIDER OF ADVERSE DETERMINATIONS; AND PROCEDURES FOR APPEAL OF ADVERSE DETERMINATIONS, INCLUDING THE ESTABLISHMENT OF AN EXPEDITED APPEALS PROCESS FOR DENIALS OF CONTINUED INPATIENT CARE OR WHERE THERE IS IMMI- NENT OR SERIOUS THREAT TO THE HEALTH OF THE ENROLLEE; AND (O) HEALTH CARE PROVIDER SELECTION AND TERMINATION CRITERIA USED BY THE HEALTH CARE PLAN. 2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE AN ALTERATION OF THE TERMS OF THE INTERNAL AND EXTERNAL REVIEW PROCEDURES SET FORTH IN LAW. 3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ALLOW A STRIKE OF A HEALTH CARE PLAN BY HEALTH CARE PROVIDERS OR PLANS AS OTHERWISE SET FORTH IN THE LAWS OF THIS STATE. 4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO ALLOW OR AUTHORIZE TERMS OR CONDITIONS WHICH WOULD IMPEDE THE ABILITY OF A HEALTH CARE PLAN TO OBTAIN OR RETAIN ACCREDITATION BY THE NATIONAL COMMITTEE FOR QUALITY ASSURANCE OR A SIMILAR BODY. S 4922. FEE RELATED COLLECTIVE NEGOTIATION. 1. IF THE HEALTH CARE PLAN HAS SUBSTANTIAL MARKET SHARE IN A BUSINESS LINE IN ANY GEOGRAPHIC AREA FOR WHICH A NEGOTIATION HAS BEEN APPROVED BY THE COMMISSIONER, HEALTH CARE PROVIDERS PRACTICING WITHIN THAT GEOGRAPHIC AREA MAY COLLECTIVELY NEGOTIATE THE FOLLOWING TERMS AND CONDITIONS RELATING TO THAT BUSINESS LINE WITH THE HEALTH CARE PLAN: (A) THE FEES ASSESSED BY THE HEALTH CARE PLAN FOR SERVICES, INCLUDING FEES ESTABLISHED THROUGH THE APPLICATION OF REIMBURSEMENT PROCEDURES; (B) THE CONVERSION FACTORS USED BY THE HEALTH CARE PLAN IN A RESOURCE-BASED RELATIVE VALUE SCALE REIMBURSEMENT METHODOLOGY OR OTHER SIMILAR METHODOLOGY; PROVIDED THE SAME ARE NOT OTHERWISE ESTABLISHED BY STATE OR FEDERAL LAW OR REGULATION; (C) THE AMOUNT OF ANY DISCOUNT GRANTED BY THE HEALTH CARE PLAN ON THE FEE OF HEALTH CARE SERVICES TO BE RENDERED BY HEALTH CARE PROVIDERS;S. 3690 4
(D) THE DOLLAR AMOUNT OF CAPITATION OR FIXED PAYMENT FOR HEALTH SERVICES RENDERED BY HEALTH CARE PROVIDERS TO HEALTH CARE PLAN ENROL- LEES; (E) THE PROCEDURE CODE OR OTHER DESCRIPTION OF A HEALTH CARE SERVICE COVERED BY A PAYMENT AND THE APPROPRIATE GROUPING OF THE PROCEDURE CODES; OR (F) THE AMOUNT OF ANY OTHER COMPONENT OF THE REIMBURSEMENT METHODOLOGY FOR A HEALTH CARE SERVICE. 2. NOTHING HEREIN SHALL BE DEEMED TO AFFECT OR LIMIT THE RIGHT OF A HEALTH CARE PROVIDER OR GROUP OF HEALTH CARE PROVIDERS TO COLLECTIVELY PETITION A GOVERNMENT ENTITY FOR A CHANGE IN A LAW, RULE, OR REGULATION. S 4923. COLLECTIVE NEGOTIATION REQUIREMENTS. 1. COLLECTIVE NEGOTIATION RIGHTS GRANTED BY THIS TITLE MUST CONFORM TO THE FOLLOWING REQUIREMENTS: (A) HEALTH CARE PROVIDERS MAY COMMUNICATE WITH OTHER HEALTH CARE PROVIDERS REGARDING THE CONTRACTUAL TERMS AND CONDITIONS TO BE NEGOTI- ATED WITH A HEALTH CARE PLAN; (B) HEALTH CARE PROVIDERS MAY COMMUNICATE WITH HEALTH CARE PROVIDERS' REPRESENTATIVES; (C) A HEALTH CARE PROVIDERS' REPRESENTATIVE IS THE ONLY PARTY AUTHOR- IZED TO NEGOTIATE WITH HEALTH CARE PLANS ON BEHALF OF THE HEALTH CARE PROVIDERS AS A GROUP; (D) A HEALTH CARE PROVIDER CAN BE BOUND BY THE TERMS AND CONDITIONS NEGOTIATED BY THE HEALTH CARE PROVIDERS' REPRESENTATIVES; AND (E) IN COMMUNICATING OR NEGOTIATING WITH THE HEALTH CARE PROVIDERS' REPRESENTATIVE, A HEALTH CARE PLAN IS ENTITLED TO CONTRACT WITH OR OFFER DIFFERENT CONTRACT TERMS AND CONDITIONS TO INDIVIDUAL COMPETING HEALTH CARE PROVIDERS. 2. A HEALTH CARE PROVIDERS' REPRESENTATIVE MAY NOT REPRESENT MORE THAN THIRTY PERCENT OF THE MARKET OF HEALTH CARE PROVIDERS OR OF A PARTICULAR HEALTH CARE PROVIDER TYPE OR SPECIALTY PRACTICING IN THE GEOGRAPHIC AREA FOR WHICH A NEGOTIATION HAS BEEN APPROVED BY THE COMMISSIONER IF THE HEALTH CARE PLAN COVERS LESS THAN FIVE PERCENT OF THE ACTUAL NUMBER OF COVERED LIVES OF THE HEALTH CARE PLAN IN THE AREA, AS DETERMINED BY THE DEPARTMENT. 3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT COLLECTIVE ACTION ON THE PART OF ANY HEALTH CARE PROVIDER WHO IS A MEMBER OF A COLLECTIVE BARGAINING UNIT RECOGNIZED PURSUANT TO THE NATIONAL LABOR RELATIONS ACT. S 4924. REQUIREMENTS FOR HEALTH CARE PROVIDERS' REPRESENTATIVE. 1. BEFORE ENGAGING IN COLLECTIVE NEGOTIATIONS WITH A HEALTH CARE PLAN ON BEHALF OF HEALTH CARE PROVIDERS, A HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL FILE WITH THE COMMISSIONER, IN THE MANNER PRESCRIBED BY THE COMMISSIONER, INFORMATION IDENTIFYING THE REPRESENTATIVE, THE REPRESEN- TATIVE'S PLAN OF OPERATION, AND THE REPRESENTATIVE'S PROCEDURES TO ENSURE COMPLIANCE WITH THIS TITLE. 2. BEFORE ENGAGING IN THE COLLECTIVE NEGOTIATIONS, THE HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL ALSO SUBMIT TO THE COMMISSIONER FOR THE COMMISSIONER'S APPROVAL A REPORT IDENTIFYING THE PROPOSED SUBJECT MATTER OF THE NEGOTIATIONS OR DISCUSSIONS WITH THE HEALTH CARE PLAN AND THE EFFICIENCIES OR BENEFITS EXPECTED TO BE ACHIEVED THROUGH THE NEGOTI- ATIONS FOR BOTH THE PROVIDERS AND CONSUMERS OF HEALTH SERVICES. THE COMMISSIONER SHALL NOT APPROVE THE REPORT IF THE COMMISSIONER, IN CONSULTATION WITH THE SUPERINTENDENT OF FINANCIAL SERVICES DETERMINES THAT THE PROPOSED NEGOTIATIONS WOULD EXCEED THE AUTHORITY GRANTED UNDER THIS TITLE.S. 3690 5
3. THE REPRESENTATIVE SHALL SUPPLEMENT THE INFORMATION IN THE REPORT ON A REGULAR BASIS OR AS NEW INFORMATION BECOMES AVAILABLE, INDICATING THAT THE SUBJECT MATTER OF THE NEGOTIATIONS WITH THE HEALTH CARE PLAN HAS CHANGED OR WILL CHANGE. IN NO EVENT SHALL THE REPORT BE LESS THAN EVERY THIRTY DAYS. 4. WITH THE ADVICE OF THE SUPERINTENDENT OF FINANCIAL SERVICES AND THE ATTORNEY GENERAL, THE COMMISSIONER SHALL APPROVE OR DISAPPROVE THE REPORT NOT LATER THAN THE TWENTIETH DAY AFTER THE DATE ON WHICH THE REPORT IS FILED. IF DISAPPROVED, THE COMMISSIONER SHALL FURNISH A WRIT- TEN EXPLANATION OF ANY DEFICIENCIES, ALONG WITH A STATEMENT OF SPECIFIC PROPOSALS FOR REMEDIAL MEASURES TO CURE THE DEFICIENCIES. IF THE COMMIS- SIONER DOES NOT SO ACT WITHIN THE TWENTY DAYS, THE REPORT SHALL BE DEEMED APPROVED. 5. A PERSON WHO ACTS AS A HEALTH CARE PROVIDERS' REPRESENTATIVE WITH- OUT THE APPROVAL OF THE COMMISSIONER UNDER THIS SECTION SHALL BE DEEMED TO BE ACTING OUTSIDE THE AUTHORITY GRANTED UNDER THIS TITLE. 6. BEFORE REPORTING THE RESULTS OF NEGOTIATIONS WITH A HEALTH CARE PLAN OR PROVIDING TO THE AFFECTED HEALTH CARE PROVIDERS AN EVALUATION OF ANY OFFER MADE BY A HEALTH CARE PLAN, THE HEALTH CARE PROVIDERS' REPRE- SENTATIVE SHALL FURNISH FOR APPROVAL BY THE COMMISSIONER, BEFORE DISSEM- INATION TO THE HEALTH CARE PROVIDERS, A COPY OF ALL COMMUNICATIONS TO BE MADE TO THE HEALTH CARE PROVIDERS RELATED TO NEGOTIATIONS, DISCUSSIONS, AND OFFERS MADE BY THE HEALTH CARE PLAN. 7. A HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL REPORT THE END OF NEGOTIATIONS TO THE COMMISSIONER NOT LATER THAN THE FOURTEENTH DAY AFTER THE DATE OF A HEALTH CARE PLAN DECISION DECLINING NEGOTIATION, CANCELING NEGOTIATIONS, OR FAILING TO RESPOND TO A REQUEST FOR NEGOTIATION. IN SUCH INSTANCES, A HEALTH CARE PROVIDERS' REPRESENTATIVE MAY REQUEST INTERVENTION FROM THE COMMISSIONER TO REQUIRE THE HEALTH CARE PLAN TO PARTICIPATE IN THE NEGOTIATION PURSUANT TO SUBDIVISION EIGHT OF THIS SECTION. 8. (A) IN THE EVENT THE COMMISSIONER DETERMINES THAT AN IMPASSE EXISTS IN THE NEGOTIATIONS, OR IN THE EVENT A HEALTH CARE PLAN DECLINES TO NEGOTIATE, CANCELS NEGOTIATIONS OR FAILS TO RESPOND TO A REQUEST FOR NEGOTIATION, THE COMMISSIONER SHALL RENDER ASSISTANCE AS FOLLOWS: (1) TO ASSIST THE PARTIES TO EFFECT A VOLUNTARY RESOLUTION OF THE NEGOTIATIONS, THE COMMISSIONER SHALL APPOINT A MEDIATOR FROM A LIST OF QUALIFIED PERSONS MAINTAINED BY THE COMMISSIONER. IF THE MEDIATOR IS SUCCESSFUL IN RESOLVING THE IMPASSE, THEN THE HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL PROCEED AS SET FORTH IN THIS ARTICLE; (2) IF AN IMPASSE CONTINUES, THE COMMISSIONER SHALL APPOINT A FACT-FINDING BOARD OF NOT MORE THAN THREE MEMBERS FROM A LIST OF QUALI- FIED PERSONS MAINTAINED BY THE COMMISSIONER, WHICH FACT-FINDING BOARD SHALL HAVE, IN ADDITION TO THE POWERS DELEGATED TO IT BY THE BOARD, THE POWER TO MAKE RECOMMENDATIONS FOR THE RESOLUTION OF THE DISPUTE; (B) THE FACT-FINDING BOARD, ACTING BY A MAJORITY OF ITS MEMBERS, SHALL TRANSMIT ITS FINDINGS OF FACT AND RECOMMENDATIONS FOR RESOLUTION OF THE DISPUTE TO THE COMMISSIONER, AND MAY THEREAFTER ASSIST THE PARTIES TO EFFECT A VOLUNTARY RESOLUTION OF THE DISPUTE. THE FACT-FINDING BOARD SHALL ALSO SHARE ITS FINDINGS OF FACT AND RECOMMENDATIONS WITH THE HEALTH CARE PROVIDERS' REPRESENTATIVE AND THE HEALTH CARE PLAN. IF WITH- IN TWENTY DAYS AFTER THE SUBMISSION OF THE FINDINGS OF FACT AND RECOM- MENDATIONS, THE IMPASSE CONTINUES, THE COMMISSIONER SHALL ORDER A RESOL- UTION TO THE NEGOTIATIONS BASED UPON THE FINDINGS OF FACT AND RECOMMENDATIONS SUBMITTED BY THE FACT-FINDING BOARD.S. 3690 6
9. ANY PROPOSED AGREEMENT BETWEEN HEALTH CARE PROVIDERS AND A HEALTH CARE PLAN NEGOTIATED PURSUANT TO THIS TITLE SHALL BE SUBMITTED TO THE COMMISSIONER FOR FINAL APPROVAL. THE COMMISSIONER SHALL APPROVE OR DISAPPROVE THE AGREEMENT WITHIN SIXTY DAYS OF SUCH SUBMISSION. 10. THE COMMISSIONER MAY COLLECT INFORMATION FROM OTHER PERSONS TO ASSIST IN EVALUATING THE IMPACT OF THE PROPOSED ARRANGEMENT ON THE HEALTH CARE MARKETPLACE. THE COMMISSIONER SHALL COLLECT INFORMATION FROM HEALTH PLAN COMPANIES AND HEALTH CARE PROVIDERS OPERATING IN THE SAME GEOGRAPHIC AREA. S 4925. CERTAIN COLLECTIVE ACTION PROHIBITED. 1. THIS TITLE IS NOT INTENDED TO AUTHORIZE COMPETING HEALTH CARE PROVIDERS TO ACT IN CONCERT IN RESPONSE TO A REPORT ISSUED BY THE HEALTH CARE PROVIDERS' REPRESEN- TATIVE RELATED TO THE REPRESENTATIVE'S DISCUSSIONS OR NEGOTIATIONS WITH HEALTH CARE PLANS. 2. NO HEALTH CARE PROVIDERS' REPRESENTATIVE SHALL NEGOTIATE ANY AGREE- MENT THAT EXCLUDES, LIMITS THE PARTICIPATION OR REIMBURSEMENT OF, OR OTHERWISE LIMITS THE SCOPE OF SERVICES TO BE PROVIDED BY ANY HEALTH CARE PROVIDER OR GROUP OF HEALTH CARE PROVIDERS WITH RESPECT TO THE PERFORM- ANCE OF SERVICES THAT ARE WITHIN THE HEALTH CARE PROVIDER'S SCOPE OF PRACTICE, LICENSE, REGISTRATION, OR CERTIFICATE. S 4926. FEES. EACH PERSON WHO ACTS AS THE REPRESENTATIVE OR NEGOTIAT- ING PARTIES UNDER THIS TITLE SHALL PAY TO THE DEPARTMENT A FEE TO ACT AS A REPRESENTATIVE. THE COMMISSIONER, BY RULE, SHALL SET FEES IN AMOUNTS DEEMED REASONABLE AND NECESSARY TO COVER THE COSTS INCURRED BY THE DEPARTMENT IN ADMINISTERING THIS TITLE. ANY FEE COLLECTED UNDER THIS SECTION SHALL BE DEPOSITED IN THE STATE TREASURY TO THE CREDIT OF THE GENERAL FUND/STATE OPERATIONS - 003 FOR THE NEW YORK STATE DEPARTMENT OF HEALTH FUND. S 4927. MONITORING OF AGREEMENTS. THE COMMISSIONER SHALL ACTIVELY MONITOR AGREEMENTS APPROVED UNDER THIS TITLE TO ENSURE THAT THE AGREE- MENT REMAINS IN COMPLIANCE WITH THE CONDITIONS OF APPROVAL. UPON REQUEST, A HEALTH CARE PLAN OR HEALTH CARE PROVIDER SHALL PROVIDE INFOR- MATION REGARDING COMPLIANCE. THE COMMISSIONER MAY REVOKE AN APPROVAL UPON A FINDING THAT THE AGREEMENT IS NOT IN SUBSTANTIAL COMPLIANCE WITH THE TERMS OF THE APPLICATION OR THE CONDITIONS OF APPROVAL. S 4928. CONFIDENTIALITY. ALL REPORTS AND OTHER INFORMATION REQUIRED TO BE REPORTED TO THE DEPARTMENT OF LAW UNDER THIS TITLE INCLUDING INFORMA- TION OBTAINED BY THE COMMISSIONER PURSUANT TO SUBDIVISION TEN OF SECTION FORTY-NINE HUNDRED TWENTY-FOUR OF THIS TITLE SHALL NOT BE SUBJECT TO DISCLOSURE UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ARTICLE THIR- TY-ONE OF THE CIVIL PRACTICE LAW AND RULES. S 4929. SEVERABILITY AND CONSTRUCTION. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY COURT OF COMPETENT JURISDICTION DECLARES ANY PHRASE, CLAUSE, SENTENCE OR PROVISION OF THIS TITLE TO BE INVALID, OR ITS APPLICABILITY TO ANY GOVERNMENT, AGENCY, PERSON OR CIRCUMSTANCE IS DECLARED INVALID, THE REMAINDER OF THIS TITLE AND ITS RELEVANT APPLI- CABILITY SHALL NOT BE AFFECTED. THE PROVISIONS OF THIS TITLE SHALL BE LIBERALLY CONSTRUED TO GIVE EFFECT TO THE PURPOSES THEREOF. S 4. This act shall take effect on the one hundred twentieth day after it shall have become a law; provided that the commissioner of health is authorized to promulgate any and all rules and regulations and take any other measures necessary to implement this act on its effective date on or before such date.