NY Pub Health L § 4903 (2021)
2021 New York Laws PBH - Public Health Article 49 - Utilization Review and External Appeal Title 1 - Certification of Agents and Utilization Review Process 4903 - Utilization Review Determinations.

§ 4903. Utilization review determinations. 1. Utilization review shall be conducted by:  (a)  Administrative personnel trained in the principles and procedures of  intake  screening  and  data  collection,  provided,  however,  that administrative  personnel  shall  only  perform  intake  screening, data collection and non-clinical review functions and shall be supervised  by a licensed health care professional;  (b)  A  health  care  professional who is appropriately trained in the principles, procedures and standards of such utilization  review  agent; provided, however, that a health care professional who is not a clinical peer reviewer may not render an adverse determination; and  (c)  A  clinical  peer  reviewer  where the review involves an adverse determination.   2. (a) A utilization review agent  shall  make  a  utilization  review determination    involving    health   care   services   which   require pre-authorization and provide notice of a determination to the  enrollee or  enrollee's  designee  and  the  enrollee's  health  care provider by telephone and in writing within three business days of  receipt  of  the necessary   information,   or   for  inpatient  rehabilitation  services following an inpatient hospital admission  provided  by  a  hospital  or skilled  nursing  facility,  within  one  business day of receipt of the necessary information. The notification shall identify; (i) whether  the services  are  considered in-network or out-of-network; (ii) and whether the enrollee  will  be  held  harmless  for  the  services  and  not  be responsible  for  any  payment,  other than any applicable co-payment or co-insurance; (iii) as applicable, the dollar  amount  the  health  care plan  will pay if the service is out-of-network; and (iv) as applicable, information explaining how an enrollee  may  determine  the  anticipated out-of-pocket   cost  for  out-of-network  health  care  services  in  a geographical area or zip code based upon the difference between what the health care plan will reimburse for out-of-network health care  services and  the  usual  and  customary  cost  for  out-of-network  health  care services.  (b) With regard to individual or group contracts  authorized  pursuant to   article   forty-four   of  this  chapter,  for  utilization  review determinations involving proposed mental  health  and/or  substance  use disorder  services where the enrollee or the enrollee's designee has, in a  format  prescribed  by  the  superintendent  of  financial  services, certified  in  the  request  that  the  proposed  services  are  for  an individual who will be appearing, or has appeared,  before  a  court  of competent  jurisdiction  and  may  be subject to a court order requiring such services, the utilization review agent shall make  a  determination and  provide  notice  of  such  determination  to  the  enrollee  or the enrollee's designee by telephone within seventy-two hours of receipt  of the  request.  Written  notice  of  the determination to the enrollee or enrollee's designee shall  follow  within  three  business  days.  Where feasible,  such  telephonic and written notice shall also be provided to the court.   3. (a) A utilization review agent shall make a determination involving continued or extended health care services, additional services  for  an enrollee  undergoing  a  course  of  continued treatment prescribed by a health care provider, or requests for inpatient substance  use  disorder treatment,  or home health care services following an inpatient hospital admission, and  shall  provide  notice  of  such  determination  to  the enrollee or the enrollee's designee, which may be satisfied by notice to the  enrollee's health care provider, by telephone and in writing within one business day of receipt of the necessary  information  except,  with respect  to  home  health  care services following an inpatient hospital  admission,  within  seventy-two  hours  of  receipt  of  the   necessary information when the day subsequent to the request falls on a weekend or holiday  and  except,  with  respect to inpatient substance use disorder treatment,  within  twenty-four  hours  of  receipt  of  the request for services when the request is submitted at least twenty-four hours  prior to  discharge  from an inpatient admission. Notification of continued or extended  services  shall  include  the  number  of  extended   services approved,  the  new  total  of  approved  services, the date of onset of services and the next review date.  (b) Provided that a request for home  health  care  services  and  all necessary information is submitted to the utilization review agent prior to  discharge  from  an  inpatient  hospital  admission pursuant to this subdivision, a utilization review agent shall not deny, on the basis  of medical  necessity  or  lack  of  prior authorization, coverage for home health care services while a determination  by  the  utilization  review agent is pending.  (c)  Provided that a request for inpatient treatment for substance use disorder  is  submitted  to  the  utilization  review  agent  at   least twenty-four  hours  prior  to  discharge  from  an  inpatient  admission pursuant to this subdivision, a utilization review agent shall not deny, on the basis of  medical  necessity  or  lack  of  prior  authorization, coverage  for  the  inpatient  substance  use disorder treatment while a determination by the utilization review agent is pending.   3-a. A utilization review agent shall grant a  step  therapy  protocol override  determination  within  seventy-two  hours  of  the  receipt of information that includes supporting rationale and documentation from  a health care professional which demonstrates that:  (a)  The  required prescription drug or drugs is contraindicated, will likely cause an adverse reaction by or physical or mental  harm  to  the enrollee;  (b)  The  required  prescription  drug  or  drugs  is  expected  to be ineffective based on the known clinical history and  conditions  of  the enrollee and the enrollee's prescription drug regimen;  (c)  The  enrollee  has  tried the required prescription drug or drugs while under their current or  a  previous  health  insurance  or  health benefit  plan,  or  another  prescription  drug  or  drugs  in  the same pharmacologic class or with  the  same  mechanism  of  action  and  such prescription  drug  or drugs was discontinued due to lack of efficacy or effectiveness, diminished effect, or an adverse event;  (d) The enrollee is stable on a prescription drug or drugs selected by their  health  care  professional  for  the  medical   condition   under consideration, provided that this shall not prevent a utilization review agent  from  requiring  an insured to try an AB-rated generic equivalent prior to providing coverage for the equivalent brand  name  prescription drug or drugs; or  (e)  The  required  prescription  drug  or  drugs  is  not in the best interest of the enrollee because it  will  likely  cause  a  significant barrier to the enrollee's adherence to or compliance with the enrollee's plan  of  care, will likely worsen a comorbid condition of the enrollee, or will likely decrease the covered enrollee's  ability  to  achieve  or maintain reasonable functional ability in performing daily activities.   3-b.  For  an enrollee with a medical condition that places the health of the insured in serious jeopardy  without  the  prescription  drug  or drugs  prescribed  by  the  insured's health care professional, the step therapy  protocol  override  determination  shall  be   granted   within twenty-four hours of the receipt of information that includes supporting rationale   and   documentation   from   a   health   care  professional  demonstrating one or more of the standards provided for  in  subdivision three-a of this section.   3-c.  Upon  a  determination  that the step therapy protocol should be overridden, the health plan shall authorize immediate coverage  for  the prescription  drug or drugs prescribed by the enrollee's treating health care professional.   4.  A  utilization  review  agent  shall  make  a  utilization  review determination  involving  health care services which have been delivered within thirty days of receipt of the necessary information.   5. Notice of an adverse determination made  by  a  utilization  review agent shall be in writing and must include:  (a)   the   reasons  for  the  determination  including  the  clinical rationale, if any;  (b) instructions on how to initiate  standard  and  expedited  appeals pursuant  to  section  forty-nine  hundred  four  and an external appeal pursuant to section forty-nine hundred fourteen of this article; and  (c) notice of the availability, upon request of the enrollee,  or  the enrollee's designee, of the clinical review criteria relied upon to make such  determination.  Such  notice  shall  also  specify  what,  if any, additional necessary information must be provided to,  or  obtained  by, the  utilization  review  agent  in  order  to  render a decision on the appeal.   6. In the event that a utilization review  agent  renders  an  adverse determination  without  attempting  to  discuss  such  matter  with  the enrollee's health care provider who specifically recommended the  health care  service,  procedure  or  treatment  under review, such health care provider shall have the opportunity to request a reconsideration of  the adverse  determination.  Except  in cases of retrospective reviews, such reconsideration shall occur within one business day of  receipt  of  the request  and  shall  be conducted by the enrollee's health care provider and the clinical peer reviewer making the  initial  determination  or  a designated clinical peer reviewer if the original clinical peer reviewer cannot  be  available.  In  the  event that the adverse determination is upheld after reconsideration, the utilization review agent shall provide notice as required pursuant to subdivision five of this section. Nothing in this section shall preclude the enrollee from  initiating  an  appeal from an adverse determination.   7.  Failure  by  the  utilization review agent to make a determination within the time periods prescribed in this section shall be deemed to be an  adverse  determination  subject  to  appeal  pursuant   to   section forty-nine  hundred  four of this title, provided, however, that failure to meet such time periods for a step  therapy  protocol  as  defined  in subdivision seven-f-three of section forty-nine hundred of this title or a  step therapy protocol override determination pursuant to subdivisions three-a, three-b and three-c of this section shall be deemed  to  be  an override of the step therapy protocol.   8.  The  commissioner,  in  conjunction  with  the  superintendent  of financial services, shall  develop  standards  for  prior  authorization requests  to  be  utilized  by all health care plans for the purposes of submitting a request for a utilization review determination for coverage of prescription drug benefits under this article. The department and the department of financial services, in development of the standards, shall take  into  consideration  existing   electronic   prior   authorization standards  including  National  Council  for  Prescription Drug Programs (NCPDP) electronic prior authorization standard transactions.   9. A utilization review agent shall have procedures for  obtaining  an enrollee's,   or   enrollee's   designee's,   preference  for  receiving notifications, which shall be in accordance with applicable federal  law  and  with  guidance developed by the commissioner. Written and telephone notification to an  enrollee  or  the  enrollee's  designee  under  this section  may  be  provided by electronic means where the enrollee or the enrollee's   designee  has  informed  the  organization  in  advance  of preference  to  receive  such  notifications  by  electronic  means.  An organization  shall  permit  the enrollee and the enrollee's designee to change the preference at any  time.  To  the  extent  practicable,  such written  and  telephone  notification  to  the  enrollee's  health  care provider shall be transmitted electronically, in a manner and in a  form agreed  upon  by  the parties. The utilization review agent shall retain documentation of preferred notification methods and present such records to the commissioner upon request.