2023 New York Laws › ISC - Insurance › Article 32 - Insurance Contracts - Life, Accident and Health, Annuities › 3238 - Pre-Authorization of Health Care Services.

§  3238.  Pre-authorization  of  health care services. (a) An insurer,
corporation organized pursuant to article forty-three of  this  chapter,
municipal cooperative health benefits plan certified pursuant to article
forty-seven  of  this  chapter,  or  health maintenance organization and
other organizations certified pursuant  to  article  forty-four  of  the
public  health  law  ("health  plan") shall pay claims for a health care
service for which a pre-authorization  was  required  by,  and  received
from,  the  health  plan  prior  to  the  rendering  of such health care
service, unless:
(1) (i) the insured, subscriber, or enrollee was not a covered  person
at the time the health care service was rendered.
(ii)  Notwithstanding  the  provisions  of  subparagraph  (i)  of this
paragraph, a health plan shall not deny a claim on  this  basis  if  the
insured's,   subscriber's   or  enrollee's  coverage  was  retroactively
terminated more than one hundred twenty  days  after  the  date  of  the
health  care service, provided that the claim is submitted within ninety
days after the date  of  the  health  care  service.  If  the  claim  is
submitted  more  than  ninety  days  after  the  date of the health care
service, the health plan shall have  thirty  days  after  the  claim  is
received  to deny the claim on the basis that the insured, subscriber or
enrollee was not a covered  person  on  the  date  of  the  health  care
service.
(2) the submission of the claim with respect to an insured, subscriber
or  enrollee  was  not timely under the terms of the applicable provider
contract, if the claim is submitted by a  provider,  or  the  policy  or
contract,  if  the  claim  is  submitted  by  the insured, subscriber or
enrollee;
(3) at  the  time  the  pre-authorization  was  issued,  the  insured,
subscriber  or  enrollee  had  not  exhausted contract or policy benefit
limitations based on information available to the health  plan  at  such
time,  but subsequently exhausted contract or policy benefit limitations
after authorization was issued; provided, however, that the health  plan
shall  include  in  the  notice  of  determination  required pursuant to
subsection (b) of section four  thousand  nine  hundred  three  of  this
chapter  and  subdivision two of section forty-nine hundred three of the
public health law that the visits authorized might exceed the limits  of
the  contract  or  policy and accordingly would not be covered under the
contract or policy;
(4) the  pre-authorization  was  based  on  materially  inaccurate  or
incomplete  information provided by the insured, subscriber or enrollee,
the designee of the insured, subscriber or enrollee, or the health  care
provider  such  that  if  the  correct  or complete information had been
provided, such pre-authorization would not have been granted;
(5) the pre-authorized service was related to a pre-existing condition
that was excluded from coverage; or
(6) there is a reasonable  basis  supported  by  specific  information
available  for review by the superintendent that the insured, subscriber
or enrollee, the designee of the insured, subscriber or enrollee, or the
health care provider has engaged in fraud or abuse.
(b) Nothing in this section shall be construed to  prohibit  a  health
plan from denying continued or extended coverage as part of a concurrent
review of a health care service.
(c)(1)  If  a  health  care  provider,  while  providing  a service or
procedure to treat a patient, determines that providing an additional or
related service or procedure, such as a service or procedure to  address
a  co-morbid  condition,  is  immediately  necessary  as  part  of  such
treatment, and in the clinical judgment of the health care  provider  it
is a medically timely service and it would not be medically advisable to

interrupt  the  provision  of  care  to  the  patient in order to obtain
pre-authorization from a health  plan  for  the  additional  or  related
service  or procedure, a denial of payment for the additional or related
service or procedure due to lack of pre-authorization shall be upheld on
appeal only if it is determined that:
(i)  the  additional  or related service or procedure is not a covered
benefit;
(ii) the additional or related service or procedure was not  medically
necessary  pursuant  to  section four thousand nine hundred four of this
chapter or section forty-nine hundred four of the public health law;
(iii) the additional or related service or procedure was  experimental
or  investigational  pursuant to section four thousand nine hundred four
of this chapter or section forty-nine hundred four of the public  health
law; or
(iv)  one of the conditions set forth in paragraphs one through six of
subsection (a) of this section is met.
(2) The provisions of this subsection shall  apply  to  situations  in
which  pre-authorization  was  required  and  received  for  the initial
service or procedure.
(3) The provisions of this subsection shall apply  without  regard  to
whether the current procedural terminology (CPT) code for the additional
or  related  service or procedure is different than the CPT code for the
initial service or procedure.
(d) Payment for such health care services shall be subject to a health
plan's provider contracts or claims payment policies that are consistent
with applicable law, rule or regulation.
(e) Nothing in this section shall be deemed to limit the  right  of  a
health plan to deny a claim if the health plan determines that it is not
primarily  obligated  to  pay the claim because other insurance coverage
exists  that  is  primary,  including  but  not  limited   to   workers'
compensation and no-fault coverage.
(f)  Notification  that  a health care service is being provided shall
not constitute a request  for  pre-authorization  of  that  health  care
service  for  purposes  of  this  section;  provided, however, that if a
health plan provides a written acknowledgement of  the  notification  to
the  health  care provider, such acknowledgment shall clearly state that
the acknowledgment  does  not  constitute  a  pre-authorization  of  the
services to be rendered.
(g)  Nothing in this section shall preclude a health care provider and
a health plan from agreeing to provisions different from those  in  this
section;  provided,  however, that any agreement that purports to waive,
limit, disclaim, or in any way diminish the  rights  of  a  health  care
provider  set  forth in this section shall be void as contrary to public
policy.