2023 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) (1) 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  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;
(iii)  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; 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.
(2)  A  utilization  review  agent  may  provide  notice of an adverse
determination related to a step therapy protocol override  determination
electronically  pursuant to subsection (i) 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 one of  this
subsection by linking to information posted on the website of the health
care plan.
(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.