§ 605. Dispute resolution for emergency services. (a) Emergency services for an insured. (1) When a health care plan receives a bill for emergency services from a non-participating physician or hospital, including a bill for inpatient services which follow an emergency room visit, the health care plan shall pay an amount that it determines is reasonable for the emergency services, including inpatient services which follow an emergency room visit, rendered by the non-participating physician or hospital, in accordance with section three thousand two hundred twenty-four-a of the insurance law, except for the insured's co-payment, coinsurance or deductible, if any, and shall ensure that the insured shall incur no greater out-of-pocket costs for the emergency services, including inpatient services which follow an emergency room visit, than the insured would have incurred with a participating physician or hospital. If an insured assigns benefits to a non-participating physician or hospital in relation to emergency services, including inpatient services which follow an emergency room visit, provided by such non-participating physician or hospital, the non-participating physician or hospital may bill the health care plan for the services rendered. Upon receipt of the bill, the health care plan shall pay the non-participating physician or hospital the amount prescribed by this section and any subsequent amount determined to be owed to the physician or hospital in relation to the emergency services provided, including inpatient services which follow an emergency room visit.

(2) A non-participating physician or hospital or a health care plan may submit a dispute regarding a fee or payment for emergency services, including inpatient services which follow an emergency room visit, for review to an independent dispute resolution entity.

(3) The independent dispute resolution entity shall make a determination within thirty days of receipt of the dispute for review.

(4) In determining a reasonable fee for the services rendered, an independent dispute resolution entity shall select either the health care plan's payment or the non-participating physician's or hospital's fee. The independent dispute resolution entity shall determine which amount to select based upon the conditions and factors set forth in section six hundred four of this article. If an independent dispute resolution entity determines, based on the health care plan's payment and the non-participating physician's or hospital's fee, that a settlement between the health care plan and non-participating physician or hospital is reasonably likely, or that both the health care plan's payment and the non-participating physician's or hospital's fee represent unreasonable extremes, then the independent dispute resolution entity may direct both parties to attempt a good faith negotiation for settlement. The health care plan and non-participating physician or hospital may be granted up to ten business days for this negotiation, which shall run concurrently with the thirty day period for dispute resolution.

(b) Emergency services for a patient that is not an insured. (1) A patient that is not an insured or the patient's physician may submit a dispute regarding a fee for emergency services, including inpatient services which follow an emergency room visit, for review to an independent dispute resolution entity upon approval of the superintendent.

(2) An independent dispute resolution entity shall determine a reasonable fee for the services based upon the same conditions and factors set forth in section six hundred four of this article.

(3) A patient that is not an insured shall not be required to pay the physician's or hospital's fee in order to be eligible to submit the dispute for review to an independent dispute resolution entity.

(c) The determination of an independent dispute resolution entity shall be binding on the health care plan, physician or hospital and patient, and shall be admissible in any court proceeding between the health care plan, physician or hospital or patient, or in any administrative proceeding between this state and the physician or hospital.

(d) The provisions of this section shall not apply to hospitals that had at least sixty percent of inpatient discharges annually which consisted of medicaid, uninsured, and dual eligible individuals as determined by the department of health in its determination of safety net hospitals.

(e) For purposes of the hospital payment pursuant to subsection (a) of this section, the amount the health care plan shall pay to the hospital shall be at least twenty-five 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 contract between the health care plan and the hospital. Provided however, the amount paid by the health care plan pursuant to this subsection shall not prejudice either party or preclude either party from submitting a dispute to the dispute resolution entity relating to the payment to the hospital or preclude the hospital from seeking additional payment from the health care plan prior to a decision by the dispute resolution entity. To the extent the prior contract between the hospital and health care plan expired greater than twelve months prior to the payment of the disputed claim, the payment amount shall be adjusted based upon the medical consumer price index. The provisions of this subsection shall only apply to the extent the health care plan and hospital had previously entered into a participating provider agreement.