2023 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. (a) Notice of an adverse determination made by a utilization review
agent shall be in writing and must include:
(i)  the  reasons  for  the  determination  including   the   clinical
rationale, if any;
(ii)  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;
(iii) 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; and
(iv) for an adverse determination related to a step  therapy  protocol
override request, information that includes the clinical review criteria
relied  upon  to  make such determination and any applicable alternative
prescription  drugs  subject  to  the  step  therapy  protocol  of   the
utilization review agent.
(b)  A  utilization  review  agent  may  provide  notice of an adverse
determination related to a step therapy protocol override  determination
electronically  pursuant  to subdivision nine of this section, including
by electronic mail or through the health care plan's member  portal  and
provider  portal.  An electronic notice of such an adverse determination
may meet the requirements of subparagraph (iv) of paragraph (a) of  this
subdivision  by  linking  to  information  posted  on the website of the
health care plan.
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.