Emergency Rule Making

Jurisdiction
New York
Publication
Issue 25
Volume XLIII
Published June 23, 2021
Rule Type
Emergency Rule
Issuing Body
Department of Financial Services

Notice Text

EMERGENCY RULE MAKING Minimum Standards for Form, Content, and Sale of Health Insurance, Including Standards of Full and Fair Disclosure I.D. No. DFS-25-21-00002-E Filing No. 684 Filing Date: 2021-06-04 Effective Date: 2021-06-04 PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Addition of section 52.16(p) to Title 11 NYCRR. Statutory authority: Financial Services Law, sections 202, 302; Insurance Law, sections 301, 3216, 3217, 3221 and 4303 Finding of necessity for emergency rule: Preservation of public health and public safety. Specific reasons underlying the finding of necessity: The novel coronavi- rus ("COVID-19") has spread to millions of people worldwide, with more than 2,000,000 confirmed cases in New York State. While the number of hospitalizations for COVID-19 has diminished sharply in New York, there are still numerous cases of New Yorkers testing positive for COVID-19. The Centers for Disease Control has confirmed that COVID-19 seems to spread easily and sustainably in communities in affected areas. Given the public health implications related to COVID-19, it is essential that cost- sharing not serve as a barrier to testing for COVID-19. This amendment prohibits health care plans that provide hospital, surgi- cal, or medical expense insurance policies or contracts from imposing, and provides that no insured shall be required to pay, copayments, coinsur- ance, or annual deductibles for covered in-network laboratory tests to diagnose COVID-19 and for visits to diagnose COVID-19 at the following locations, including through telehealth: an in-network provider's office, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose COVID-19, or an emergency department of a hospital. Copayments, coinsurance, or annual deductibles may be imposed in accordance with the applicable policy or contract for any follow-up care or treatment for COVID-19, including an inpatient hospital admission, as otherwise permitted by law. The amendment requires every health care plan to provide written notification of the requirements of the amendment to its in-network providers in order to ensure that the providers do not require any insured to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed under the amendment. This notifica- tion should ensure that providers do not collect a copayment, coinsurance, or annual deductible at any time, including when the services are provided, which is typically when such payment is collected. Since the situation regarding COVID-19 is constantly evolving, and to ensure that cost-sharing does not serve as a barrier to testing for COVID- 19, it is imperative that this amendment be promulgated on an emergency basis for the preservation of public health. Subject: Minimum Standards for Form, Content, and Sale of Health Insur- ance, Including Standards of Full and Fair Disclosure. Purpose: To waive cost-sharing for in-network visits and laboratory tests necessary to diagnose the novel coronavirus (COVID-19). Text of emergency rule: Section 52.16(p) is added as follows: (p)(1) No policy or contract delivered or issued for delivery in this State that provides hospital, surgical, or medical expense insurance coverage shall impose, and no insured shall be required to pay, copayments, co- insurance, or annual deductibles for the following services when covered under the policy or contract: (i)in-network laboratory tests to diagnose the novel coronavirus (COVID-19); and (ii)visits to diagnose the novel coronavirus (COVID-19) at the fol- lowing locations, including through telehealth: an in-network provider's office, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose the novel coronavirus (COVID-19), or an emergency department of a hospital. Copayments, coinsurance, or an- nual deductibles may be imposed in accordance with the applicable policy or contract for any follow-up care or treatment for the novel coronavirus (COVID-19), including an inpatient hospital admission, as otherwise permitted by law. (2)An insurer shall provide written notification to its in-network providers that they shall not collect any deductible, copayment, or coin- surance in accordance with this subdivision. This notice is intended to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires July 6, 2021. Text of rule and any required statements and analyses may be obtained from: Tobias Len, Department of Financial Services, One Commerce Plaza, Albany, NY 12257, (518) 474-8975, email: Tobias.Len@dfs.ny.gov Regulatory Impact Statement 1.Statutory authority: Financial Services Law sections 202 and 302 and Insurance Law sections 301, 3216, 3217, 3221, and 4303. Financial Services Law section 202 establishes the office of the Super- intendent of Financial Services ("Superintendent"). Financial Services Law section 302 and Insurance Law section 301, in pertinent part, authorize the Superintendent to prescribe regulations interpreting the Insurance Law and to effectuate any power granted to the Superintendent in the Insurance Law, Financial Services Law, or any other law. Insurance Law section 3216 sets forth the standard provisions in indi- vidual accident and health insurance policies. Insurance Law section 3217 authorizes the Superintendent to issue regulations to establish minimum standards for the form, content and sale of health insurance policies and subscriber contracts of corporations organized under Insurance Law Articles 32 and Article 43 and Public Health Law Article 44. Insurance Law section 3221 sets forth the standard provisions in group and blanket accident and health insurance policies. Insurance Law section 4303 sets forth mandatory benefits in subscriber contracts issued by corporations organized under Insurance Law Article 43. 2.Legislative objectives: The statutory sections cited above establish the minimum standards for the form, content, and sale of health insurance, including standards of full and fair disclosure. This proposed amendment accords with the public policy objectives that the Legislature sought to advance in the foregoing sections of the Insurance Law by prohibiting the imposition of copayments, coinsurance, or annual deductibles for in- network laboratory tests to diagnose the novel coronavirus ("COVID-19") and visits to diagnose COVID-19 at the following locations, including through telehealth: an in-network provider's office, an in-network urgent care center, any other in-network outpatient provider setting able to diag- nose COVID-19, or an emergency department of a hospital. 3.Needs and benefits: COVID-19 has spread to millions of people worldwide, with more than 2,000,000 confirmed cases in New York State. While the number of hospitalizations for COVID-19 has diminished sharply in New York, there are still numerous cases of New Yorkers test- ing positive for COVID-19. The Centers for Disease Control has confirmed that COVID-19 seems to spread easily and sustainably in communities in affected areas. Given the public health implications related to COVID-19, it is essential that cost-sharing not serve as a barrier to testing for COVID- 19. This amendment prohibits authorized insurers and health maintenance organizations (collectively, "health care plans") that provide hospital, sur- gical, or medical expense insurance policies or contracts from imposing, and provides that no insured shall be required to pay, copayments, coin- surance, or annual deductibles for covered in-network laboratory tests to diagnose COVID-19 and for visits to diagnose COVID-19 at the follow- ing locations, including through telehealth: an in-network provider's of- fice, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose COVID-19, or an emergency department of a hospital. Copayments, coinsurance, or annual deductibles may be imposed in accordance with the applicable policy or contract for any follow-up care or treatment for COVID-19, including an inpatient hospital admission, as otherwise permitted by law. The amendment requires every health care plan to provide written notification of the requirements of the amendment to its in-network health care providers ("providers") in order to ensure that the providers do not require any insured to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed under the amendment. This notifica- tion should ensure that providers do not collect a copayment, coinsurance, or annual deductible at any time, including when the services are provided, which is typically when such payment is collected. The Department of Financial Services ("Department") expects every health care plan to reimburse a provider, including reimbursement for the insured's waived copayment, coinsurance, or annual deductible, with respect to any impacted claims. Given the public health implications related to COVID-19, it is essential that cost-sharing does not serve as a barrier to testing for COVID-19. The waiver of copayments, coinsurance, and annual deductibles is necessary to ensure that people are not deterred from seeing a provider and getting tested for COVID-19. Failure to do so could result in the further spread of this epidemic and could jeopardize the health and safety of the people of New York. 4.Costs: Health care plans may incur additional costs to comply with the amendment because they may need to file new policy and contract forms and rates and they will need to provide the written notification to in- network providers regarding this amendment. However, any costs should be minimal because health care plans submit policy or contract form and rate filings and provide written notifications to providers as a part of the normal course of business. This amendment may impose costs on providers because they will need to ensure that insureds are not charged a copayment, coinsurance, or an- nual deductible that is prohibited from being imposed, including at the time the services are provided. However, any additional costs should be minimal because a provider should receive reimbursement, including the insured's copayment, coinsurance, or annual deductible, from the health care plan directly with respect to any impacted claims. This amendment may impose compliance costs on the Department because the Department will need to review amended policy and contract forms and rates. However, any additional costs incurred by the Depart- ment should be minimal, and the Department should be able to absorb the costs in its ordinary budget. The amendment will not impose compliance costs on any local governments. 5.Local government mandates: The amendment does not impose any program, service, duty or responsibility on any county, city, town, village, school district, fire district or other special district. 6.Paperwork: Health care plans are required to provide written notifica- tion to their in-network providers that the providers may not collect any deductible, copayment, or coinsurance for laboratory tests and visits to di- agnose COVID-19. This notification may be provided electronically as part of existing communications that occur between health care plans and in-network providers. Health care plans may also need to file new policy and contract forms and rates with the Superintendent. Providers and local governments should not incur additional paperwork to comply with this amendment. 7.Duplication: This amendment does not duplicate, overlap, or con?ict with any existing state or federal rules or other legal requirements. 8.Alternatives: There are no significant alternatives to consider. 9.Federal standards: The amendment does not exceed any minimum standards of the federal government for the same or similar subject areas. 10.Compliance schedule: The rule will take effect immediately upon filing of the Notice of Emergency Adoption with the Secretary of State. Regulatory Flexibility Analysis 1.Effect of rule: This rule affects health maintenance organizations and authorized insurers (collectively, "health care plans") and health care providers ("providers"). This amendment prohibits health care plans that provide hospital, surgical, or medical expense insurance policies or contracts from imposing, and provides that no insured shall be required to pay, copayments, coinsurance, or annual deductibles for covered in- network laboratory tests to diagnose the novel coronavirus ("COVID-19") and for visits to diagnose COVID-19 at the following locations, including through telehealth: an in-network provider's office, an in-network urgent care center, any other in-network outpatient provider setting able to diag- nose COVID-19, or an emergency department of a hospital. Copayments, coinsurance, or annual deductibles may be imposed in accordance with the applicable policy or contract for any follow-up care or treatment for COVID-19, including an inpatient hospital admission, as otherwise permitted by law. The amendment requires every health care plan to provide written notification of the requirements of the amendment to its in-network providers in order to ensure that the providers do not require any insured to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed under the amendment. This notification should ensure that providers do not collect a copayment, coinsurance, or annual deductible at any time, including when the services are provided, which is typically when such payment is collected. Industry asserts that certain health care plans subject to the amendment are small businesses. Providers also may be small businesses. As a result, certain health care plans and providers that are small businesses will be affected by this amendment. This amendment does not affect local governments. 2.Compliance requirements: No local government will have to undertake any reporting, recordkeeping, or other affirmative acts to comply with this amendment because the amendment does not apply to any local government. A health care plan that is a small business affected by this amendment, if any, may be subject to reporting, recordkeeping, or other compliance requirements as the health care plan may need to file new policy and contract forms and rates with the Superintendent and will be required to provide written notification of the amendment to its in-network providers. A provider that is a small business may be subject to reporting, recordkeeping, or other compliance requirements as the provider must ensure that an insured is not charged a copayment, coinsurance, or annual deductible that is prohibited from being imposed under the amendment at any time, including at the time services are provided. 3.Professional services: No local government will need professional services to comply with this amendment because the amendment does not apply to any local government. No health care plan or provider that is a small business affected by this amendment should need to retain profes- sional services, such as lawyers or auditors, to comply with this amendment. 4.Compliance costs: No local government will incur any costs to comply with this amendment because the amendment does not apply to any local government. A health care plan that is a small business affected by this amendment, if any, may incur costs because it may need to file new policy or contract forms and rates and will be required to provide written notification of the amendment to its in-network providers. However, any costs should be minimal because health care plans submit policy or contract form and rate filings and provide written notifications to provid- ers as a part of the normal course of business. A provider that is a small business may incur additional costs to comply with the amendment, which may include costs to ensure that the insured is not charged a copayment, coinsurance, or annual deductible that is prohibited from being imposed at any time, including at the time the ser- vices are provided. However, any additional costs should be minimal because a provider should receive reimbursement, including the insured's copayment, coinsurance, or annual deductible, from the health care plan directly with respect to any impacted claims. 5.Economic and technological feasibility: This amendment does not apply to any local government; therefore, no local government should ex- perience any economic or technological impact as a result of the amendment. A health care plan and a provider that is a small business should not incur any economic or technological impact as a result of the amendment. 6.Minimizing adverse impact: There will not be an adverse impact on any local government because the amendment does not apply to any local government. This amendment should not have an adverse impact on a health care plan or provider that is a small business affected by the amend- ment, if any, because the amendment uniformly affects all health care plans and providers. In addition, a provider that is a small business should receive reimbursement, including the insured's copayment, coinsurance, or annual deductible, from the health care plan directly with respect to any impacted claims from the health care plan directly. 7.Small business and local government participation: The Department of Financial Services ("Department") contacted trade associations representing health care plans that are small businesses before it promul- gated this amendment and considered comments it received from these associations. The Department also notified trade associations representing providers that are small businesses that it intended to promulgate this amendment and considered comments it received from these associations. Health care plans and providers that are small businesses also will have an opportunity to participate in the rulemaking process when the amendment is published in the State Register and posted on the Department's website. Rural Area Flexibility Analysis 1.Types and estimated numbers of rural areas: Authorized insurers and health maintenance organizations (collectively, "health care plans") and health care providers ("providers") affected by this amendment operate in every county in this state, including rural areas as defined by State Administrative Procedure Act section 102(10). 2.Reporting, recordkeeping, and other compliance requirements; and professional services: A health care plan, including a health care plan in a rural area, may be subject to additional reporting, recordkeeping, or other compliance requirements because the health care plan may need to file new policy and contract forms and rates with the Department of Financial Services ("Department") and will be required to provide written notifica- tion of the amendment to its in-network providers. A provider, including a provider in a rural area, may be subject to report- ing, recordkeeping, or other compliance requirements as the provider must ensure that an insured is not required to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed pursuant to the amendment at any time, including at the time the services are provided. A health care plan or a provider, including those in a rural area, should not need to retain professional services, such as lawyers or auditors, to comply with this amendment. 3.Costs: Health care plans and providers, including those in rural areas, may incur additional costs to comply with the amendment. A health care plan may incur additional compliance costs as it may need to file new policy and contract forms and rates with the Department and will be required to provide written notification of the amendment to its in-network providers. However, any costs should be minimal because health care plans submit policy or contract form and rate filings and provide written notifications to providers as a part of the normal course of business. A provider, including those in rural areas, may incur additional costs to comply with the amendment. Those additional costs may include costs to ensure that the insured is not required to pay a copayment, coinsurance, or annual deductible that is prohibited from being imposed at any time, including at the time the services are provided. However, any additional costs should be minimal because a provider should receive reimburse- ment, including the insured's copayment, coinsurance, or annual deduct- ible, from the health care plan directly with respect to any impacted claims. 4.Minimizing adverse impact: This amendment uniformly affects health care plans and providers that are located in both rural and non-rural areas of New York State. The amendment should not have an adverse impact on rural areas. 5.Rural area participation: The Department contacted trade associa- tions representing health care plans that are in rural areas before it promulgated this amendment and considered comments it received from these associations. The Department also notified trade associations representing providers in rural areas that it intended to promulgate this amendment and considered comments it received from these associations. Health care plans and providers in rural areas will also have an opportunity to participate in the rulemaking process when the amendment is published in the State Register and posted on the Department's website. Job Impact Statement This amendment should not adversely impact jobs or employment op- portunities in New York State. The amendment prohibits policies and contracts of hospital, surgical, or medical expense insurance from impos- ing, and provides that no insured shall be required to pay, copayments, co- insurance, and annual deductibles for covered in-network laboratory tests to diagnose the novel coronavirus ("COVID-19") and for visits to diag- nose COVID-19 at the following locations, including through telehealth: an in-network health care provider's office, an in-network urgent care center, any other in-network outpatient provider setting able to diagnose COVID-19, or an emergency department of a hospital. As a result, there should be no impact on jobs or employment opportunities.