NY Ins L § 4903 (2021)
2021 New York Laws ISC - Insurance Article 49 - Utilization Review and External Appeal Title 1 - Registration of Agents and Review Process 4903 - Utilization Review Determinations.

§  4903.  Utilization  review  determinations.  (a) Utilization review shall be conducted by:  (1) 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;  (2) 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  (3) A clinical peer reviewer where  the  review  involves  an  adverse determination.  (b)  (1)  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 insured or  insured's  designee  and  the  insured'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) whether the insured will be held harmless for the services and  not  be  responsible for  any  payment, other than any applicable co-payment, co-insurance or deductible; (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  insured  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.  (2) With regard to individual or group contracts  authorized  pursuant to  article  thirty-two,  forty-three  or forty-seven of this chapter or article forty-four of the public health law, for utilization and  review determinations  involving  proposed  mental  health and/or substance use disorder services where the insured or the insured's designee has, in  a format  prescribed  by the superintendent, 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  insured  or  the insured's designee by telephone within seventy-two hours of receipt of the request.  Written  notice  of the  determination  to  the  insured  or insured's designee shall follow within three business days. Where feasible, such telephonic and  written notice shall also be provided to the court.  (c)  (1)  A  utilization  review  agent  shall  make  a  determination involving  continued  or  extended  health  care  services,   additional services  for  an  insured  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 insured or the insured's  designee,  which  may  be satisfied  by notice to the insured'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.  (2)  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 subsection,  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.  (3) 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 subsection, 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.  (c-1) 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:  (1) The required prescription drug or drugs is contraindicated or will likely  cause  an  adverse reaction by or physical or mental harm to the insured;  (2) The  required  prescription  drug  or  drugs  is  expected  to  be ineffective  based  on  the known clinical history and conditions of the insured and the insured's prescription drug regimen;  (3) The insured 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;  (4)  The insured 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  (5)  The  required  prescription  drug  or  drugs  is  not in the best interest of the insured because  it  will  likely  cause  a  significant barrier  to  the insured's adherence to or compliance with the insured's plan of care, will likely worsen a comorbid condition of the insured, or will likely decrease the covered  individual's  ability  to  achieve  or maintain reasonable functional ability in performing daily activities.  (c-2)  For  an insured 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  subsection (c-1) of this section.  (c-3)  Upon  a  determination that the step therapy protocol should be overridden, the health plan shall authorize immediate coverage  for  the prescription  drug  prescribed  by  the  insured's  treating health care professional.  (d) 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.  (e) Notice of an adverse determination made by  a  utilization  review agent shall be in writing and must include:  (1)   the   reasons  for  the  determination  including  the  clinical rationale, if any;  (2) instructions on how to initiate  standard  appeals  and  expedited appeals  pursuant  to  section  four  thousand  nine hundred four and an external appeal pursuant to section four thousand nine hundred  fourteen of this article; and  (3)  notice  of  the availability, upon request of the insured, or the insured'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.  (f) In the event that a utilization review agent  renders  an  adverse determination  without  attempting  to  discuss  such  matter  with  the insured'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 insured'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 subsection (e) of this section. Nothing in this section shall preclude the insured  from  initiating  an  appeal from an adverse determination.  (g)  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  four thousand  nine  hundred  four  of  this  title,  provided, however, that failure to meet such time periods for a step therapy protocol as defined in subsection (g-9) of section forty-nine hundred of  this  title  or  a step  therapy  protocol  override  determination pursuant to subsections (c-1), (c-2) and (c-3) of this section shall be deemed to be an override of the step therapy protocol.  (h) The  superintendent,  in  conjunction  with  the  commissioner  of health,  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  health, 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.  (i) A utilization review agent shall have procedures for obtaining  an insured's,   or   insured's   designee's,   preference   for   receiving  notifications, which shall be in accordance with applicable federal  law and with guidance developed by the superintendent. Written and telephone notification  to an insured or the insured's designee under this section may  be  provided by electronic means where the insured or the insured's designee has informed the utilization  review  agent  in  advance  of  a preference   to  receive  such  notifications  by  electronic  means.  A utilization review agent shall permit  the  insured  and  the  insured's designee   to   change  the  preference  at  any  time.  To  the  extent practicable, such written and telephone notification  to  the  insured'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 superintendent upon request.