Title: Section 98-1.15 - Employer requirements

Effective Date

06/29/2005

98-1.15 Employer requirements.

(a ) All employers subject to the provisions of the Unemployment Insurance Law, except those employers with fewer than 25 employees, shall include in any health benefits plan offered to their employees the option of membership in an HMO which provides or offers a comprehensive health services plan in accordance with the provisions of this Subpart, but only if such plan serves an area in which 25 of such employer's employees reside and the HMO has been issued a certificate of authority by the commissioner.

(b) For those employees of an employer represented by a bargaining representative, the offer of the HMO option shall be subject only to the collective bargaining process. For those employees not represented by a bargaining representative, the offer of the health maintenance organization alternative shall be made directly to the employee.

(c) Employer option.

(1) For the purposes of this section, the following definitions shall apply:

(i) Staff model/group model category:

(a) Staff modelis an HMO that provides more than one half of its basic health services through physicians and other professionals who work in centalized health centers as salaried employees of the HMO and where health care is delivered at a health center owned or leased by the HMO.

(b) Group modelis an HMO that provides more than one half of its basic health services through physicians and other professionals who are not salaried employees of the organization but instead are members of one or more medical groups which contract with the HMO to deliver health care at a health center.

(ii) IPA model/network model category:

(a) Independent practice association (IPA) modelis an HMO organized in such a way that the physicians or other professionals are not salaried employees of the organization and contract individually or as one or more groups with an IPA which in turn contracts with the HMO to make the services of such providers available to the HMO's enrollees.

(b) Network model HMOis an HMO organized in such a way that physicians or other professionals provide health care in any combination of models as defined in subparagraphs (i) and/or (ii) of this paragraph, but does not qualify as a staff or a group model as set out in subparagraph (i) of this paragraph.

(iii) Principal officeis that place of business indicated on the employer's certificate of incorporation or like instrument approved and on file with the Secretary of State.

(iv) Metropolitan regionconsists of the counties of Westchester, Rockland, New York, Kings, Queens, Richmond, Bronx, Nassau and Suffolk.

(2) If there is more than one HMO engaged in the provision of health services in the area in which the employees of the employer reside, then the employer shall be required to offer the option of enrollment in HMOs that are qualified under the provisions of this Part, pursuant to the following:

(i) if the employer has 25 or more but fewer than 200 employees, the employer shall be required to offer at least one HMO from the staff model/group model category and one HMO from the IPA model/network model category;

(ii) if the employer has 200 or more employees and the employer's principal office in this State is located outside the metropolitan region, the employer shall be required to offer at least two HMOs from the staff model/group model category and two HMOs from the IPA model/network model category;

(iii) if the employer has 200 or more employees and the employer's principal office in this State is located within the metropolitan region, the employer shall be required to offer at least two HMOs from the staff model/group model category and two HMOs from the IPA model/network model category and one additional HMO of any model;

(iv) if within any particular area of the State served by one or more HMOs in which at least 25 of an employer's employees reside there are fewer HMOs by category than the employer is required to offer, then additional HMOs of other categories shall be offered; provided, however, that no employer with fewer than 200 employees shall be required to offer more than a total of two HMOs, and no employer with 200 or more employees shall be required to offer more than a total of four HMOs if the employer's principal office is not located in the metropolitan region, or five such organizations if the employer's principal office is located within the metropolitan region;

(v) in the event fewer than the required total minimum number of HMOs are available in an area, the employer shall offer all HMOs then certified to issue subscriber contracts in that area; (vi) nothing in this subdivision shall be deemed to prohibit an employer from choosing to offer more HMOs to its employees than are required under this subdivision; and

(vii) nothing in this subdivision shall require an employer to offer to its employees an HMO which has not approached the employer seeking to be an offered HMO choice, nor shall it be interpreted as prohibiting an employer from requesting that an HMO consider enrolling its employees.

(3) In determining employer size for required HMO offerings statewide, the employer shall tabulate the total number of employees at all work sites maintained by the employer within the State of New York. If, for example, an employer has 200 employees at its principal office within the metropolitan region and 25 employees at its nonmetropolitan region office, the employer is required to offer five HMOs in each area, subject to subparagraph (2)(v) of this subdivision. Work sites include, but are not limited to, principal offices, branch offices, district offices or regional offices.

(4) Any employer who knowingly fails to comply with the provisions of this subdivision shall be subject to a civil penalty of not more than $1,000 and/or subject to injunctive relief.

(d) No employer shall be required to pay more for health benefits as a result of the application of this section than would otherwise be required by any prevailing collective bargaining agreement or other legally enforceable contract for the provision of health benefits between an employer and his employees.

(e) An employer contributing on behalf of employees to the cost of health benefit plan options shall contribute for any HMO option an amount which is not less than 100% of the dollar amount contributed by the employer for any other employee benefit option, or which is based on the same percentage that is applied to any other employer health benefits plan option premium or cost.

(f) The HMO is responsible for identifying those employers within their service area to which the option of enrollment in the HMO is to be offered, and for notifying in writing those employers to whose employees it intends to offer the HMO option.

(g) Such notification to an employer by an HMO shall indicate, where appropriate, whether an HMO intends to offer its plan to all employees of an employer who reside within its article 44 service area, or to limit its offer to the employees of a specific organizational subdivision of the employer. When one or more employees of such an employer are not covered by a collective bargaining agreement, and in the cases of public employers, the employer shall have the option of requiring that the HMO option be offered to all of those employees within the service area who are covered by the employer's existing health benefits contract.

(h) An employer, subject to and qualifying under this section, receiving written notification from an HMO of its intent to offer the HMO option, shall, within 30 days, provide written acknowledgement of the HMO notification, and thereafter shall not unreasonably delay the actions necessary to implement the offering of the HMO alternative to employees.

(i) Material presented to the employer shall include, but not necessarily be limited to, identification of service area, an organizational chart or description of the HMO, identification of the governing authority of the HMO and the holding company of a controlled HMO, identification of the principal providers of medical and hospital services associated with the HMO, present and anticipated enrollment limitations, approved premiums for enrollees and a sample enrollee contract. If the HMO has not received approval for enrollee premiums, the information provided to the employer by the HMO must clearly show that such premiums are not yet approved by the superintendent.

(j) The HMO shall notify the employer of its intention to market the HMO option at least 90 days prior to the expiration or renewal date of an existing health benefits contract or employer-employee agreement relating to health benefits, and when a collective bargaining agreement includes health benefits, at least 90 days prior to the expiration date of such agreement. For employers with a collective bargaining agreement that is without fixed terms, or is for a fixed term but has provisions for periodically changing the conditions of employment, such agreement shall be treated as renewable on the anniversary date of the agreement or at such other times, not less than annually, as may be provided by such agreement for discussion of changes in its provisions. Existing collective bargaining agreements making no reference to the HMO option or to a particular HMO shall not relieve an employer of the statutory obligation to make the HMO option available to employees in accordance with this section.

(k) New employees beginning regular employment with an employer subject to this section shall have either seven working days or the customary period allowed by the employer, whichever is longer, to elect the health benefits option under which they desire to be covered. (l) Employers subject to this section shall, when responding to notification by an HMO of its intent to offer the HMO option, provide the commencement date and duration of its next annual enrollment period during which employees may elect to change from coverage under one health benefits option offered to another. The HMO(s) shall initially, and on an annual basis thereafter, have access to employees for marketing purposes during such enrollment period.

(m) When an annual enrollment period has not been customarily provided, employers subject to this section shall annually provide, after the initial offering of the HMO option which results in the enrollment of employees in an HMO, an enrollment period of reasonable duration to afford employees the opportunity to elect to change their health benefits coverage to or from an HMO option offered, or to or from any other health benefits option which chooses to participate in the annual enrollment period.

(n) MCOs shall, upon request, disclose to prospective subscribers the information required to be so disclosed by Section 4408 of the Public Health Law. Marketing materials to be distributed to the employees shall be clear, concise, strictly factual and accurate. Such materials shall include identification of the service area, an organizational chart or description, identification of principal providers of medical and hospital services associated with the HMO, present and anticipated enrollment limitations, enrollee premiums, a description of included services, any enrollee costs and required copayments, and any exclusions of coverage.

(o) The cost of marketing the HMO is the responsibility of the HMO, unless otherwise negotiated.

(p) The inclusion of any additional marketing material and the method of distribution of all marketing material shall be subject to negotiation between the HMO and the employer.

(q) Any material distributed by the employer relative to the health maintenance organization plan shall be subject to prior review by the HMO for accuracy.

(r) Any material to be distributed by an HMO to employees which involves comparison with or discussion of any other health benefit options offered by an employer shall be subject to prior review by the employer for accuracy.

(s) Employers required to offer the option of membership in an HMO under this section shall provide for the collection of employee premiums through payroll deductions if such payroll deduction is provided for employees choosing other health benefit options.

(t) An employer shall not discriminate against an employee who chooses the HMO option.

(u) An employer may utilize or employ a solicitor, broker, agent or other representative to advise and assist in the review, selection, marketing, offering, processing for enrollment or administration of its employees in a comprehensive health services plan(s); provided, however, that:

(1) no employer, or the solicitor, agent or employee thereof shall require payment by an HMO, or by an employee through premium payment, of any fee or commission for such services;

(2) no broker providing such services shall require payment by an employee through premium payment for such services;

(3) any requirement for payment by an employee for such services shall be clearly identified and itemized in enrollee billings, and described as separate and distinct from the premium rate payable by employees in any materials distributed to employees concerning premium rates and other required enrollee payments; and

(4) when an employer or its representative prepares for employees a comparison of health benefits options to be offered which includes one or more HMO options, such material shall be comparable in scope and depth for all options and shall include all HMO options to be offered regardless of whether an HMO has negotiated to contribute to the cost of preparing and/or distributing such material.

Volume

VOLUME A-2 (Title 10)

up