2023 New York Laws › PBH - Public Health › Article 49 - Utilization Review and External Appeal › Title 1 - Certification of Agents and Utilization Review Process › 4905 - Required and Prohibited Practices.

§  4905. Required and prohibited practices. 1. Each utilization review
agent shall have written procedures for assuring  that  patient-specific
information obtained during the process of utilization review will be:
(a)  kept confidential in accordance with applicable state and federal
laws; and
(b) shared only  with  the  enrollee,  the  enrollee's  designee,  the
enrollee's  health  care provider and those who are authorized by law to
receive such information.
2. Summary data shall not be considered confidential if  it  does  not
provide information to allow identification of individual patients.
3. Any health care professional who makes determinations regarding the
medical   necessity  of  health  care  services  during  the  course  of
utilization  review  shall  be  appropriately  licensed,  registered  or
certified.
4.  A  utilization review agent shall not, with respect to utilization
review activities, permit or provide compensation or anything  of  value
to its employees, agents, or contractors based on:
(a)  either a percentage of the amount by which a claim is reduced for
payment or the number of claims or the cost of services  for  which  the
person has denied authorization or payment; or
(b)  any  other  method  that  encourages  the rendering of an adverse
determination.
5. If a health care service has been  specifically  pre-authorized  or
approved  for  an  enrollee by a utilization review agent, a utilization
review agent shall not, pursuant  to  retrospective  review,  revise  or
modify  the  specific  standards,  criteria  or  procedures used for the
utilization review for procedures, treatment and services  delivered  to
the enrollee during the same course of treatment.
6.  Utilization  review shall not be conducted more frequently than is
reasonably required to assess whether the  health  care  services  under
review are medically necessary.
7.    When    making   prospective,   concurrent   and   retrospective
determinations,  utilization  review  agents  shall  collect  only  such
information  as  is  necessary  to make such determination and shall not
routinely require health care providers to numerically code diagnoses or
procedures to be  considered  for  certification  or  routinely  request
copies  of  medical records of all patients reviewed. During prospective
or concurrent review, copies of medical records shall only  be  required
when  necessary  to verify that the health care services subject to such
review are medically necessary. In such cases,  only  the  necessary  or
relevant sections of the medical record shall be required. A utilization
review  agent  may request copies of partial or complete medical records
retrospectively.
8. In no event shall information be  obtained  from  the  health  care
providers  for  the use of the utilization review agent by persons other
than  health  care  professionals,  medical  record   technologists   or
administrative personnel who have received appropriate training.
9. The utilization review agent shall not undertake utilization review
at  the  site  of  the  provision  of  health  care  services unless the
utilization review agent:
(a) Identifies himself or herself by name and the name of his  or  her
organization,  including  displaying  photographic  identification which
includes the name of the utilization review agent and clearly identifies
the individual as representative of the utilization review agent;
(b) Whenever possible, schedules review at least one business  day  in
advance with the appropriate health care provider;
(c)  If  requested by a health care provider, assures that the on-site
review staff register with the appropriate contact person, if available,

prior to requesting any clinical  information  or  assistance  from  the
health care provider;
(d)  Obtains  consent  from  the  enrollee  or the enrollee's designee
before interviewing the patient's family, or observing any  health  care
service being provided to the enrollee; and
(e)  This  subdivision  shall  not  apply to health care professionals
engaged in providing care, case management or making  on-site  discharge
decisions.
10. A utilization review agent shall not base an adverse determination
on a refusal to consent to observing any health care service.
11. A utilization review agent shall not base an adverse determination
on  lack  of  reasonable  access  to a health care provider's medical or
treatment records unless  the  utilization  review  agent  has  provided
reasonable  notice  to  the  enrollee,  the  enrollee's  designee or the
enrollee's health care provider, in which  case  the  enrollee  must  be
notified,  and  has  complied with all provisions of subdivision nine of
this section.
12. Neither the utilization review agent nor the entity for which  the
agent  provides utilization review shall take any action with respect to
a patient or a health care provider that is intended  to  penalize  such
enrollee,  the  enrollee's  designee,  or  the  enrollee's  health  care
provider for, or to discourage such enrollee, the  enrollee's  designee,
or  the  enrollee's  health  care  provider  from undertaking an appeal,
dispute resolution or judicial review of an adverse determination.
13. In  no  event  shall  an  enrollee,  an  enrollee's  designee,  an
enrollee's  health care provider, any other health care provider, or any
other person or entity, be required to inform or contact the utilization
review agent  prior  to  the  provision  of  emergency  care,  including
emergency treatment or emergency admission.
14.  No contract or agreement between a utilization review agent and a
health care provider shall contain any clause purporting to transfer  to
the  health  care provider by indemnification or otherwise any liability
relating to activities, actions or omissions of the  utilization  review
agent as opposed to the health care provider.
15.  A  health  care professional providing health care services to an
enrollee shall be prohibited from serving as the clinical peer  reviewer
for  such  enrollee  in  connection  with the health care services being
provided to the enrollee.