NY Pub Health L § 4905 (2021)
2021 New York Laws PBH - Public Health Article 49 - Utilization Review and External Appeal Title 1 - Certification of Agents and Utilization Review Process 4905 - Required and Prohibited Practices.

§  4905. Required and prohibited practices. 1. Each utilization review agent shall have written procedures for assuring  that  patient-specific information obtained during the process of utilization review will be:  (a)  kept confidential in accordance with applicable state and federal laws; and  (b) shared only  with  the  enrollee,  the  enrollee's  designee,  the enrollee's  health  care provider and those who are authorized by law to receive such information.   2. Summary data shall not be considered confidential if  it  does  not provide information to allow identification of individual patients.   3. Any health care professional who makes determinations regarding the medical   necessity  of  health  care  services  during  the  course  of utilization  review  shall  be  appropriately  licensed,  registered  or certified.   4.  A  utilization review agent shall not, with respect to utilization review activities, permit or provide compensation or anything  of  value to its employees, agents, or contractors based on:  (a)  either a percentage of the amount by which a claim is reduced for payment or the number of claims or the cost of services  for  which  the person has denied authorization or payment; or  (b)  any  other  method  that  encourages  the rendering of an adverse determination.   5. If a health care service has been  specifically  pre-authorized  or approved  for  an  enrollee by a utilization review agent, a utilization review agent shall not, pursuant  to  retrospective  review,  revise  or modify  the  specific  standards,  criteria  or  procedures used for the utilization review for procedures, treatment and services  delivered  to the enrollee during the same course of treatment.   6.  Utilization  review shall not be conducted more frequently than is reasonably required to assess whether the  health  care  services  under review are medically necessary.   7.    When    making   prospective,   concurrent   and   retrospective determinations,  utilization  review  agents  shall  collect  only  such information  as  is  necessary  to make such determination and shall not routinely require health care providers to numerically code diagnoses or procedures to be  considered  for  certification  or  routinely  request copies  of  medical records of all patients reviewed. During prospective or concurrent review, copies of medical records shall only  be  required when  necessary  to verify that the health care services subject to such review are medically necessary. In such cases,  only  the  necessary  or relevant sections of the medical record shall be required. A utilization review  agent  may request copies of partial or complete medical records retrospectively. This subdivision shall not apply to health  maintenance organizations  licensed pursuant to article forty-three of the insurance law or certified pursuant to article forty-four of this chapter.   8. In no event shall information be  obtained  from  the  health  care providers  for  the use of the utilization review agent by persons other than  health  care  professionals,  medical  record   technologists   or administrative personnel who have received appropriate training.   9. The utilization review agent shall not undertake utilization review at  the  site  of  the  provision  of  health  care  services unless the utilization review agent:  (a) Identifies himself or herself by name and the name of his  or  her organization,  including  displaying  photographic  identification which includes the name of the utilization review agent and clearly identifies the individual as representative of the utilization review agent;  (b) Whenever possible, schedules review at least one business  day  in advance with the appropriate health care provider;  (c)  If  requested by a health care provider, assures that the on-site review staff register with the appropriate contact person, if available, prior to requesting any clinical  information  or  assistance  from  the health care provider;  (d)  Obtains  consent  from  the  enrollee  or the enrollee's designee before interviewing the patient's family, or observing any  health  care service being provided to the enrollee; and  (e)  This  subdivision  shall  not  apply to health care professionals engaged in providing care, case management or making  on-site  discharge decisions.   10. A utilization review agent shall not base an adverse determination on a refusal to consent to observing any health care service.   11. A utilization review agent shall not base an adverse determination on  lack  of  reasonable  access  to a health care provider's medical or treatment records unless  the  utilization  review  agent  has  provided reasonable  notice  to  the  enrollee,  the  enrollee's  designee or the enrollee's health care provider, in which  case  the  enrollee  must  be notified,  and  has  complied with all provisions of subdivision nine of this section.   12. Neither the utilization review agent nor the entity for which  the agent  provides utilization review shall take any action with respect to a patient or a health care provider that is intended  to  penalize  such enrollee,  the  enrollee's  designee,  or  the  enrollee's  health  care provider for, or to discourage such enrollee, the  enrollee's  designee, or  the  enrollee's  health  care  provider  from undertaking an appeal, dispute resolution or judicial review of an adverse determination.   13. In  no  event  shall  an  enrollee,  an  enrollee's  designee,  an enrollee's  health care provider, any other health care provider, or any other person or entity, be required to inform or contact the utilization review agent  prior  to  the  provision  of  emergency  care,  including emergency treatment or emergency admission.   14.  No contract or agreement between a utilization review agent and a health care provider shall contain any clause purporting to transfer  to the  health  care provider by indemnification or otherwise any liability relating to activities, actions or omissions of the  utilization  review agent as opposed to the health care provider.   15.    A health care professional providing health care services to an enrollee shall be prohibited from serving as the clinical peer  reviewer for  such  enrollee  in  connection  with the health care services being provided to the enrollee.