1. (1) Individual health insurance policies and group and blanket accident and health insurance policies which provide hospital, surgical or medical expense coverage may include preexisting condition provisions which are at least as favorable to the covered person as those set forth in this section.

2. (2) The requirements of this section shall not be applicable to any individual, group or blanket insurance policy in relation to its provision of “excepted benefits” as defined in section 2791(c) of the Federal Public Health Service Act (42 U.S.C. section 300gg-91[c]) and meeting the requirements for exception as set forth in section 2721(c) or (d) of the Federal Public Health Service Act (42 U.S.C. section 300gg-21[c] and [d]) or section 2763(a) or (b) of the Federal Public Health Service Act (42 U.S.C. section 300gg-63[a] and [b]). However, this exemption shall not be applicable to any policy providing hospital or surgical indemnity benefits with specific dollar amounts that exceed the amounts required to meet the definitions of basic hospital and basic medical insurance in sections 52.5 and 52.6 of this Part.

   (b) Preexisting condition provisions.

3. (1) No preexisting condition provision shall exclude coverage for a period in excess of 12 months following the enrollment date for a covered person and may only relate to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care or treatment was recommended or received within the six month period ending on the enrollment date.
4. (2) For purposes of this section, enrollment date has the meaning prescribed in sections 3232 and 4318 of the Insurance Law.
5. (3) For purposes of this section, genetic information shall not be treated as a pre-existing condition in the absence of a diagnosis of the condition related to such information.

6. (4) No preexisting condition provision shall exclude coverage in the case of: Subparagraphs (i) and (ii) of this paragraph will not apply to an individual after the first 63-day period during all of which the individual was not covered under any creditable coverage as defined in subdivision (c) of this section.

   1. (i) an individual who, as of the last day of the 30-day period beginning with the date of birth, is covered under creditable coverage as defined in sections 3232 and 4318 of the Insurance Law;
   2. (ii) a child who is adopted or placed for adoption before attaining 18 years of age and who, as of the last day of the 30-day period beginning on the date of the adoption or placement for adoption, is covered under creditable coverage as defined in sections 3232 and 4318 of the Insurance Law; or
   3. (iii) pregnancy (except in an individual health insurance policy or a student blanket accident and health insurance policy in which coverage may be excluded, subject to a credit for previous creditable coverage, for a period not to exceed 10 months for a pregnancy existing on the enrollment date).

7. (5) With respect to an “eligible individual” as defined in section 2741(b) of the Federal Public Health Service Act, 42 U.S.C. section 300gg-41(b), an insurer shall not impose any preexisting condition exclusion in an individual health insurance policy.

   1. (i) With respect to the issuance of policies to groups of 50 or fewer employees or members, exclusive of spouses and dependents, health maintenance organizations may elect to use a specified affiliation period as an alternative to the use of a preexisting condition provision. Subject to the crediting requirements of subdivision (c) of this section, the health maintenance organization may require that coverage shall not become effective until after a specified affiliation period of not more than 60 days after the enrollment date.
   2. (ii) For purposes of this paragraph, the term affiliation period means a period which must expire before coverage becomes effective. The health maintenance organization is not required to provide health care services or benefits during such period and no premium shall be charged for any coverage during the period. An affiliation period shall run concurrently with any waiting period under the policy.

   (6)

8. (7) Individual direct payment policies issued pursuant to sections 4321 and 4322 of the Insurance Law must include a preexisting condition provision that complies with this section.

   (c) Creditable coverage.

9. (1) In applying a preexisting condition provision to a covered person, the policy shall credit the time the covered person was previously covered under creditable coverage if the previous creditable coverage was continuous to a date not more than 63 days prior to the enrollment date of the new coverage. For purposes of this section, creditable coverage has the meaning prescribed in sections 3232 and 4318 of the Insurance Law.
10. (2) Crediting shall not be required when the previous coverage was for insurance as described in paragraph (a)(2) of this section.
11. (3) In applying the credit an insurer shall count a period of creditable coverage without regard to the specific benefits covered during the period of creditable coverage.

12. (4) As an alternative to the method described in paragraph (3) of this section, an insurer may elect to count the period of creditable coverage based on coverage of benefits within each of several classes or categories of benefits.

    1. (i) In the case of individual policies, the permissible classes or categories of benefits are coverage for hospital care, medical care, out-of-network care, mental health care, substance abuse treatment, prescription drug coverage, dental care and vision care.
    2. (ii) In the case of group or blanket policies, the permissible classes or categories of benefits are coverage for mental health care, substance abuse treatment, prescription drug coverage, dental care and vision care.
    3. (iii) In addition to the classes and categories of benefits set forth in subparagraphs (i) and (ii) of this paragraph, the superintendent may authorize such other classes or categories as may be recognized under Federal regulations.
13. (5) The election of an alternative method of counting the period of creditable coverage shall be made on a uniform basis for all insureds, subscribers, participants and beneficiaries. When such election is made, an insurer shall count a period of creditable coverage with respect to any class or category of benefits if any level of benefits is covered within such class or category.
14. (6) An insurer making an election to credit by alternative method shall prominently so state in a disclosure statement, and shall set forth in any policy or certificate issued in connection with the coverage, that the insurer has made such election. Details of the alternative method of counting creditable coverage shall be set forth in the policy and certificate. The disclosure statement shall include a description of the effect of the alternative method election with regard to the application of creditable coverage.
15. (7) In the case of previous health maintenance organization coverage, any specified affiliation period prior to such previous coverage becoming effective shall also be credited provided that the previous health maintenance organization coverage was continuous to a date not more than 63 days prior to the enrollment date of the new coverage.
16. (8) If a health maintenance organization elects to use a specified affiliation period pursuant to paragraph (b)(6) of this section, such affiliation period shall be reduced by the time the covered person was previously covered under creditable coverage which was continuous to a date not more than 63 days prior to the enrollment date.

(a) General rules.