2023 New York Laws › ISC - Insurance › Article 49 - Utilization Review and External Appeal › Title 1 - Registration of Agents and Review Process › 4909 - Site of Service Clinical Review.

§  4909.  Site  of  service  clinical review. (a) For purposes of this
section:
(1) "Free-standing ambulatory surgical center" shall mean a diagnostic
and treatment center authorized pursuant to article twenty-eight of  the
public health law and operated independently from a hospital.
(2)  "Health care plan" shall mean an insurer, a corporation organized
pursuant to article forty-three of this chapter,  a  health  maintenance
organization  certified  pursuant  to  article  forty-four of the public
health law,  a  municipal  cooperative  health  benefit  plan  certified
pursuant  to  article  forty-seven of this chapter, and a student health
plan established or maintained pursuant  to  section  one  thousand  one
hundred  twenty-four  of  this  chapter,  that issues a health insurance
policy or contract or that arranges for care and  services  for  members
under  a contract with the department of health with a network of health
care providers and utilizes site of service clinical review to determine
coverage for services delivered by network participating providers.
(3) "Hospital-based outpatient clinic" shall mean a clinic  authorized
pursuant  to article twenty-eight of the public health law and listed on
a hospital's operating certificate.
(4) "Site of service clinical review"  shall  mean  clinical  criteria
applied  by  a  health  care plan for the purpose of determining whether
non-urgent outpatient medical procedures and surgeries will  be  covered
for a given insured or enrollee when rendered by a network participating
provider   at   a   hospital-based   outpatient  clinic  rather  than  a
free-standing ambulatory surgical center.
(b) Site of service clinical review shall be deemed utilization review
in accordance with and subject to the requirements  and  protections  of
this  article and article forty-nine of the public health law, including
the right to internal and external appeal of denials related to site  of
service clinical review.
(c)  Site  of  service  clinical  review  shall consider the insured's
health and safety, choice of health care provider, and timely access  to
care and shall not be based solely on cost.
(d)  A  health care plan that utilizes site of service clinical review
that is intended to  direct  insureds  and  enrollees  to  free-standing
ambulatory  surgical  centers  shall  be  able  to  demonstrate  to  the
department or, as applicable, to the department of health, that  it  has
an   adequate   network  of  free-standing  ambulatory  surgical  center
providers to meet the health needs of  insureds  and  enrollees  and  to
provide  an  appropriate  choice  of  providers sufficient to render the
services covered under the policy or contract. Such network shall be  in
compliance   with   network   adequacy   standards  established  by  the
superintendent and section three thousand two hundred forty-one of  this
chapter.
(e)  Except  as  provided  in subsection (g) of this section, starting
January first,  two  thousand  twenty-four,  a  health  care  plan  that
utilizes  a  site  of  service  clinical  review  shall deliver a notice
disclosing and clearly explaining the site of  service  clinical  review
to:
(1)  policyholders,  contract  holders,  insureds,  and  enrollees and
prospective policyholders, contract holders, insureds, and enrollees  at
the  time  of  plan and policy or contract selection and at least ninety
days prior to the implementation of new site of service clinical  review
or modification of existing site of service clinical review. Such notice
shall  include  the  specific  services under the site of service review
policy, a statement that site of service clinical review may  limit  the
settings  in  which services covered under the policy or contract may be
provided and render a network participating provider unable to perform a

service; shall disclose to insureds or enrollees  any  quality  or  cost
differential,  including differences in out-of-pocket costs, between the
hospital-based  outpatient  clinic  and  the  free-standing   ambulatory
surgical  center when services at a hospital-based outpatient clinic are
requested; and shall set forth any rights the insured  or  enrollee  may
have to obtain the service at a hospital-based outpatient clinic through
a  utilization  review  appeal.  Notifications shall also be made at any
other time upon the insured's or enrollee's request;
(2) network participating providers at  least  ninety  days  prior  to
implementation.  A  health  care plan shall also inform providers of the
process for  requesting  coverage  of  a  service  in  a  hospital-based
outpatient  clinic  setting,  including the right to request a real time
clinical peer to peer discussion as part of the  authorization  process;
and
(3)  the  superintendent  and,  as  applicable, to the commissioner of
health, at least  forty-five  days  prior  to  notifying  policyholders,
contract  holders, insureds and enrollees and prospective policyholders,
contract holders,  insureds  and  enrollees  and  network  participating
providers  in  accordance  with  this  subsection.  Such  notice  to the
superintendent and, as applicable, to the commissioner of health,  shall
include  (A)  draft communications to the foregoing persons for purposes
of complying with this subsection and (B) an explanation of how the site
of service clinical review selected by the  health  care  plan  complies
with this article and article forty-nine of the public health law.
(f)  A  health  care plan's provider directory shall explain that even
though a provider is participating in the network,  a  site  of  service
clinical  review  may affect where services will need to be obtained and
whether the provider will be  available  to  provide  such  service,  as
applicable.
(g)  A  health care plan that has implemented site of service clinical
review prior to January first, two thousand twenty-four that is  not  in
compliance  with this section shall revise such site of service clinical
review to comply with this section  and  deliver  the  notices  required
under  subsection  (e)  of  this  section  at  the beginning of the open
enrollment  period  for  individual  health   insurance   policies   and
contracts,  and for group health insurance policies and contracts, prior
to January first, two thousand twenty-four.
(h) Starting January first, two thousand twenty-four, at a minimum,  a
health care plan shall approve a request for authorization for a service
covered  under the policy or contract and requested to be performed by a
network participating provider at a hospital-based outpatient clinic  in
the following situations:
(1)  the  procedure  cannot  be  safely  performed  in a free-standing
ambulatory surgical center due to the  insured's  or  enrollee's  health
condition;
(2)  there  is no free-standing ambulatory surgical center capacity in
the insured's or enrollee's geographic area; or
(3)  the  provision  of  health  care  services  at  a   free-standing
ambulatory surgical center would result in undue delay.
(i)  Starting January first, two thousand twenty-four, site of service
clinical review criteria developed by health care plans shall also  take
into consideration whether:
(1)   the  insured's  or  enrollee's  treating  network  participating
provider recommends, based on a written clinical justification submitted
to  the  health  care  plan,  that  the  service  be   provided   at   a
hospital-based outpatient clinic; or
(2)  the  insured  or  enrollee  has  requested  a  particular network
participating  provider  who  performs  the  requested  service   in   a

hospital-based  outpatient  clinic  because  the  insured or enrollee is
undergoing a continuing  course  of  treatment  with  the  participating
provider  or  because  the insured has previously obtained the requested
service  from  the  participating  provider,  and  the  provider  is not
credentialed at any free-standing  ambulatory  surgical  center  in  the
service  area  and  is  not  able  to be credentialed within ninety days
following the submission of the authorization request to the health care
plan.