2023 New York Laws › PBH - Public Health › Article 49 - Utilization Review and External Appeal › Title 1 - Certification of Agents and Utilization Review Process › 4909 - Site of Service Clinical Review.

§  4909.  Site  of  service  clinical  review. 1. For purposes of this
section:
(a) "Free-standing ambulatory surgical center" shall mean a diagnostic
and treatment center authorized pursuant to article twenty-eight of this
chapter and operated independently from a hospital.
(b) "Health care plan" shall mean an insurer, a corporation  organized
pursuant   to  article  forty-three  of  the  insurance  law,  a  health
maintenance organization certified pursuant  to  article  forty-four  of
this  chapter,  a  municipal  cooperative  health benefit plan certified
pursuant to article forty-seven of the  insurance  law,  and  a  student
health  plan  established or maintained pursuant to section one thousand
one hundred twenty-four of the  insurance  law,  that  issues  a  health
insurance  policy or contract or that arranges for care and services for
members under a contract with the department with a  network  of  health
care providers and utilizes site of service clinical review to determine
coverage for services delivered by network participating providers.
(c)  "Hospital-based outpatient clinic" shall mean a clinic authorized
pursuant to article  twenty-eight  of  this  chapter  and  listed  on  a
hospital's operating certificate.
(d)  "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.
2.  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 insurance law, including the
right to internal and external appeal of  denials  related  to  site  of
service clinical review.
3. 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.
4. 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  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 commissioner and article forty-four of this chapter.
5. Except as provided in subdivision seven 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:
(a) 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;
(b) 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
(c)  the  commissioner,  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 subdivision. Such notice
to the commissioner  shall  include  (i)  draft  communications  to  the
foregoing  persons  for  purposes of complying with this subdivision and
(ii) 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 insurance law.
6. 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.
7. 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 subdivision five 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.
8.  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:
(a) the procedure  cannot  be  safely  performed  in  a  free-standing
ambulatory  surgical  center  due  to the insured's or enrollee's health
condition;
(b) there is no free-standing ambulatory surgical center  capacity  in
the insured's or enrollee's geographic area; or
(c)   the  provision  of  health  care  services  at  a  free-standing
ambulatory surgical center would result in undue delay.
9. Starting January first, two thousand twenty-four, site  of  service
clinical  review criteria developed by health care plans shall also take
into consideration whether:
(a)  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
(b) 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.