STATE OF NEW YORK ________________________________________________________________________ 6202 2023-2024 Regular Sessions IN SENATE April 3, 2023 ___________ Introduced by Sen. SCARCELLA-SPANTON -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to enact the Health Care Nondiscrimination Act of 2023 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "Health Care Nondiscrimination Act of 2023". 3 § 2. Legislative findings. All residents should have freedom to seek 4 the care, treatment and provider of their choosing with respect to their 5 healthcare if treatment of a health condition is within a licensed 6 healthcare provider's scope of practice. Given the historic bias against 7 nonpharmacological-based healthcare in New York, it shall be the policy 8 of the state to redress this imbalance by removing barriers and enhanc- 9 ing access to such services. First, a health insurance plan or health 10 benefit should not discriminate against licensed, nonpharmacological- 11 based healthcare providers regarding fee reimbursement or payment for 12 the provision of similar or like-kind healthcare services. Second, to 13 further reverse this bias and promote the public health, the state 14 should promote licensed, nonpharmacological-based healthcare services to 15 ensure that the public has full and unfettered access to the evidence- 16 based benefits of such services, including the treatment of substance 17 abuse disorders to combat the opioid crisis. Third, all residents should 18 have equal access to nonpharmacological-based healthcare alternatives, 19 whether through self-funded healthcare plans or plans which are fully 20 funded through insurance, or other contracts, when making personal 21 healthcare decisions. Finally, to better ensure compliance and enforce- 22 ment, the departments of health, financial services and labor should 23 have the ability to impose substantial fines and penalties against 24 insurers, healthcare plans and healthcare organizations that continue to 25 deny patients' freedom of choice regarding their healthcare. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01605-01-3S. 6202 2 1 § 3. Definitions. For the purposes of this act, the following terms 2 shall have the following meanings: 3 1. "Licensed health care provider or providers" shall mean any person 4 duly licensed under articles 132, 136, 153, 155, 156 or 160 of the 5 education law. 6 2. "Managed care product" shall mean: (a) a policy which requires that 7 medical or other health care services covered under the policy, other 8 than emergency care services, be provided by, or pursuant to, a referral 9 from a primary care provider and that services provided pursuant to such 10 a referral be rendered by a licensed health care provider participating 11 in the insurer's managed care provider network; (b) the in-network 12 portion of a contract which requires that medical or other health care 13 services covered under the contract, other than emergency care services, 14 be provided by, or pursuant to, a referral from a primary care provider 15 and that services provided pursuant to such a referral be rendered by a 16 licensed health care provider participating in the insurer's managed 17 care provider network, in order for the insured to be entitled to the 18 maximum reimbursement under the contract; and (c) other healthcare plans 19 through which each member of an enrolled population is entitled to 20 receive comprehensive in-network and out-of-network health services, in 21 consideration for a basic advance or periodic charge, which may or may 22 not require a referral for such services. 23 3. "Health services plan provider" shall mean an insurer or any organ- 24 ization or agency that provides health services or benefits under a 25 policy, plan or other contract. 26 § 4. Insurance and health plan equality and non-discrimination. 1. 27 Every policy or plan which is a managed care product, as such term is 28 defined in section three of this act, that provides coverage for physi- 29 cian services in a physician's office, every policy or plan which is a 30 managed care product that provides major medical or similar comprehen- 31 sive-type coverage and every contract issued by a health service corpo- 32 ration or a medical expense indemnity corporation which is a managed 33 care product that includes coverage for physician services in a physi- 34 cian's office, shall include coverage for licensed health care provider 35 services. Licensed health care provider services may be subject to 36 reasonable deductible, co-payment and co-insurance amounts, reasonable 37 fee or benefit limits and reasonable utilization review, provided that 38 any such amounts, limits and review shall not: 39 (a) function to direct treatment in a manner discriminative against 40 any licensed health care provider; 41 (b) create underwriting standards that are more restrictive for any 42 licensed health care provider than care provided by other health profes- 43 sionals licensed under title 8 of the education law; 44 (c) apply cost containment, quality or performance measures to 45 licensed health care providers unequally, as compared with those applied 46 to primary care providers; 47 (d) impose a co-payment or co-insurance amount on an insured for 48 services provided by any licensed health care provider that is greater 49 than the co-payment or co-insurance amount imposed on an insured for the 50 same or similar services provided by a primary care provider; and 51 (e) individually and collectively be more restrictive than those 52 applicable under the same policy for care or services provided by other 53 health professionals in the diagnosis, treatment and management of the 54 same or similar conditions, injuries, complaints, disorders or ailments, 55 even if differing nomenclature is used to describe the condition, inju- 56 ry, complaint, disorder or ailment.S. 6202 3 1 2. Every policy or plan which includes coverage for physician services 2 in a physician's office, every policy or plan which provides major 3 medical or similar comprehensive-type coverage, other than a managed 4 care product as such term is defined in section three of this act, and 5 every contract issued by a health service corporation or medical expense 6 indemnity corporation which includes coverage for physician services in 7 a physician's office other than a managed care product and benefits 8 provided under articles 2 and 3 of the workers' compensation law and 9 article 51 of the insurance law, shall include coverage for licensed 10 health care provider services. Licensed health care provider services 11 may be subject to reasonable deductible, co-payment and co-insurance 12 amounts, reasonable fee or benefit limits, and reasonable utilization 13 review, provided that any such amounts, limits and review shall not: 14 (a) function to direct treatment in a manner discriminative against 15 any licensed health care provider; 16 (b) create underwriting standards that are more restrictive for any 17 licensed health care provider than care provided by other health profes- 18 sionals licensed under title 8 of the education law; 19 (c) apply cost containment, quality or performance measures to 20 licensed health care provider care unequally as compared with those 21 applied to primary care providers; 22 (d) impose a co-payment or co-insurance amount on an insured for 23 services provided by any licensed health care provider that is greater 24 than the co-payment or co-insurance amount imposed on an insured for the 25 same or similar services provided by a primary care provider; and 26 (e) individually and collectively be more restrictive than those 27 applicable under the same policy for care or services provided by other 28 health professionals in the diagnosis, treatment and management of the 29 same or similar conditions, injuries, complaints, disorders or ailments, 30 even if differing nomenclature is used to describe the condition, inju- 31 ry, complaint, disorder or ailment. 32 3. The contract between a health maintenance organization, as such 33 term is defined in article 44 of the public health law and an enrollee, 34 shall be subject to regulation by the superintendent of the department 35 of financial services as if it were a health insurance subscriber 36 contract and shall include, but shall not be limited to, all mandated 37 benefits required by this act. 38 4. Any person, partnership, corporation, limited liability company or 39 other organization licensed under the laws of the state of New York, 40 which provides or contracts to provide health and accident benefit 41 coverage as a self-insurer for its employees, shareholders, or other 42 persons shall be subject to the provisions of this act. 43 5. The coverage required by this section shall not be abridged by any 44 regulation promulgated by the superintendent of financial services, the 45 commissioner of health or the chair of the workers' compensation board. 46 § 5. Fee parity. 1. A health services plan provider shall not pay a 47 licensed health care provider less for care and services identified 48 under current procedural terminology, as listed in a nationally recog- 49 nized services and procedures code book, such as the most recent Ameri- 50 can Medical Association procedural terminology code book, than it pays 51 any other individual licensed under title 8 of the education law, except 52 as provided in subdivisions two and three of this section. A health 53 services plan provider shall not circumvent the requirements of this 54 section by creating a provider-specific code not listed in a nationally 55 recognized code book otherwise used by such health services plan provid- 56 er for payment, or by creating or using any other provider-specificS. 6202 4 1 billing code or policy not listed in a nationally recognized coding 2 system otherwise used by the health services plan provider. 3 2. This section shall not affect a health service plan's ability to: 4 (a) implement a health care quality improvement program to promote cost 5 effective and clinically efficacious health care services, including but 6 not limited to, pay-for-performance payment methodologies and other 7 programs fairly applied to all individuals licensed under title 8 of the 8 education law, that are designed to promote evidence-based and 9 research-based practices; (b) establish health care network adequacy 10 standards; and (c) pay a licensed health care provider less than another 11 provider licensed under title 8 of the education law for procedures or 12 services under the same code based upon geographic differences in the 13 cost of maintaining a practice. 14 3. This section shall not expand the scope of practice of any licensed 15 health care provider. 16 § 6. Treatment of pain. 1. When a patient seeks treatment for any 17 neuromusculoskeletal condition that causes pain where a health care 18 practitioner considers an opioid treatment, the practitioner shall 19 discuss with the patient and, as appropriate, refer or prescribe non- 20 pharmacological treatment alternatives, before starting a patient on an 21 opioid. For purposes of this section, "non-pharmacological treatment 22 alternatives" shall include chiropractic, acupuncture, massage therapy, 23 physical therapy, psychology, occupational therapy, cognitive behavioral 24 therapy, and non-clinical activities such as exercise. The health care 25 practitioner shall further advise that some treatment options may not be 26 covered by the patient's health insurance plan or coverage. 27 2. Nothing in this section shall be deemed to require that all non-o- 28 pioid treatment alternatives set forth in subdivision one of this 29 section must be exhausted prior to the patient receiving an opioid 30 prescription. 31 3. The requirements of this section shall not apply to patients being 32 treated under any of the following circumstances: cancer; hospice or 33 other end-of-life care; post-surgery treatment immediately following a 34 surgical procedure; or a medical emergency. For purposes of this 35 section, "medical emergency" shall mean an acute injury or illness that 36 poses an immediate risk to a person's life or health. 37 § 7. Performing certain services including certifying disability and 38 employment by school districts. 1. To qualify as physically disabled for 39 the purposes of compliance with section 459 of the real property tax 40 law, an individual may also submit to the assessor, as such term is 41 defined in subdivision 3 of section 102 of the real property tax law, a 42 certified statement from any licensed health care provider on a form 43 prescribed and made available by the commissioner of taxation and 44 finance which states that the individual has a physical impairment which 45 substantially limits one or more of such individual's major life activ- 46 ities. 47 2. The commissioner of motor vehicles may issue license plates to 48 severely disabled persons in accordance with section 404-a of the vehi- 49 cle and traffic law upon the receipt of proof of an individual's disa- 50 bility or the disability of a family member, as certified by any 51 licensed health care provider. 52 3. "Health professionals," as such term is defined in section 902 of 53 the education law, with respect to the employment of such individuals by 54 school districts, shall also include any licensed health care provider. 55 § 8. Enforcement and penalties. 1. Every health services plan provider 56 shall annually and no later than February first of each year, file aS. 6202 5 1 report with the department of health, the department of financial 2 services and the department of labor that demonstrates compliance with 3 the provisions of this act. The department of health, the department of 4 financial services and the department of labor shall prescribe the 5 manner of filing and the content and format of the report required under 6 this section and shall make such filed reports available to the public 7 on each department's respective website. If a health services plan 8 provider that is required to file a report under this section does not 9 file such report by the time required, the department of health, the 10 department of financial services or the department of labor shall impose 11 a fine against the health services plan provider of not less than one 12 thousand dollars per day for each day such report is overdue. 13 2. Any person seeking treatment by a licensed health care provider who 14 has suffered loss or injury by reason of any violation of this act by a 15 health services plan provider shall have a private right of action to 16 enjoin such unlawful act or practice and to recover his or her actual 17 damages sustained because of any violation of this act. Actions may be 18 brought by one or more patients or licensed health care providers for 19 and on behalf of themselves, and other persons or licensed health care 20 providers similarly situated. A court of competent jurisdiction may, in 21 its discretion, award punitive damages, if the court finds that the 22 defendant health services plan provider willfully or knowingly violated 23 this act. The court may also award reasonable attorneys' fees to a 24 prevailing plaintiff. 25 § 9. This act shall take effect immediately.