2023 New York Laws › ISC - Insurance › Article 49 - Utilization Review and External Appeal › Title 1 - Registration of Agents and Review Process › 4902 - Utilization Review Program Standards.

§  4902.  Utilization  review  program standards. (a) Each utilization
review agent  shall  adhere  to  utilization  review  program  standards
consistent  with the provisions of this title which shall, at a minimum,
include:
(1) Appointment of a medical director, who is  a  licensed  physician;
provided,  however,  that  the  utilization  review  agent may appoint a
clinical director  when  the  utilization  review  performed  is  for  a
discrete  category  of health care service and provided further that the
clinical director is a licensed health care professional  who  typically
manages  the  category  of  service.  Responsibilities  of  the  medical
director, or, where appropriate, the clinical director,  shall  include,
but  not be limited to, the supervision and oversight of the utilization
review process;
(2) Development of written policies and  procedures  that  govern  all
aspects  of  the  utilization  review  process  and a requirement that a
utilization review agent shall maintain and make available  to  insureds
and  health  care  providers  a  written  description of such procedures
including procedures to appeal an adverse determination together with  a
description,   jointly   promulgated   by  the  superintendent  and  the
commissioner of health as required pursuant to subsection (e) of section
four thousand nine hundred fourteen of this  article,  of  the  external
appeal process established pursuant to title two of this article and the
time frames for such appeals;
(3) Utilization of written clinical review criteria developed pursuant
to a utilization review plan;
(4)  Establishment  of  a  process  for  rendering  utilization review
determinations which shall, at a minimum, include: written procedures to
assure that utilization reviews and determinations are conducted  within
the  timeframes  established herein; procedures to notify an insured, an
insured's designee and/or an insured's health care provider  of  adverse
determinations;  and  procedures  for  appeal  of adverse determinations
including the establishment of an expedited appeals process for  denials
of continued inpatient care or where there is imminent or serious threat
to the health of the insured;
(5) (i) Establishment of a written procedure to assure that the notice
of an adverse determination includes:
(A)   the   reasons  for  the  determination  including  the  clinical
rationale, if any;
(B) instructions on how to initiate  standard  and  expedited  appeals
pursuant  to section four thousand nine hundred four of this article and
an external appeal  pursuant  to  section  four  thousand  nine  hundred
fourteen  of  this article; (C) 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;
(D)  what,  if  any, additional necessary information must be provided
to, or obtained by, the utilization review agent in order  to  render  a
decision on appeal; and
(E)  for  an  adverse determination related to a step therapy protocol
override determination, 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.
(ii)  A  utilization  review  agent may provide a notice of an adverse
determination related to a step therapy protocol override  determination
electronically  pursuant to subsection (i) of section four thousand nine
hundred three of this title, 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

clause  (E)  of  subparagraph  (i)  of  this  paragraph  by  linking  to
information posted on the website of the health care plan;
(6)  Establishment  of a requirement that appropriate personnel of the
utilization  review  agent  are  reasonably  accessible   by   toll-free
telephone:
(i) not less than forty hours per week during normal business hours to
discuss  patient  care  and allow response to telephone requests, and to
ensure that such utilization review agent has a telephone system capable
of accepting, recording or providing instruction to  incoming  telephone
calls  during other than normal business hours and to ensure response to
accepted or recorded messages not less than one business day  after  the
date on which the call was received; or
(ii)  notwithstanding  the  provisions  of  subparagraph  (i)  of this
paragraph, not less than forty hours per  week  during  normal  business
hours, to discuss patient care and allow response to telephone requests,
and  to  ensure  that,  in  the  case of a request submitted pursuant to
subsection (a) of section four thousand nine hundred three of this title
or an expedited appeal filed pursuant to subsection (b) of section  four
thousand  nine  hundred four of this title, on a twenty-four hour a day,
seven day a week basis;
(7) Establishment of appropriate policies  and  procedures  to  ensure
that   all   applicable   state   and   federal   laws  to  protect  the
confidentiality of individual medical records are followed;
(8) Establishment of a requirement that emergency services rendered to
an insured shall  not  be  subject  to  prior  authorization  nor  shall
reimbursement  for  such  services  be  denied  on retrospective review;
provided,  however,  that  such  services  are  medically  necessary  to
stabilize or treat an emergency condition.
(9)  When  conducting  utilization  review for purposes of determining
health care coverage for substance use disorder treatment, a utilization
review agent shall utilize an evidence-based and peer reviewed  clinical
review  tool  that  is  appropriate  to  the  age  of  the patient. When
conducting such utilization review for treatment provided in this state,
a utilization review agent shall  utilize  an  evidence-based  and  peer
reviewed  clinical  tool  designated  by  the  office  of alcoholism and
substance abuse services that is consistent with the  treatment  service
levels  within  the  office  of  alcoholism and substance abuse services
system. All approved tools shall have inter  rater  reliability  testing
completed by December thirty-first, two thousand sixteen.
10.  When  establishing  a step therapy protocol, a utilization review
agent shall utilize recognized evidence-based and peer reviewed clinical
review criteria that also takes  into  account  the  needs  of  atypical
patient  populations and diagnoses when establishing the clinical review
criteria.
11. When conducting utilization review for  a  step  therapy  protocol
override  determination,  a  utilization  review agent shall utilize, in
addition  to  any  other  requirements  of  this   article,   recognized
evidence-based  and  peer  reviewed  clinical  review  criteria  that is
appropriate for the insured and the insured's medical condition.
(12) When conducting utilization review for  purposes  of  determining
health care coverage for a mental health condition, a utilization review
agent  shall  utilize  evidence-based  and peer reviewed clinical review
criteria that is appropriate to the age of the patient. The  utilization
review  agent  shall use clinical review criteria deemed appropriate and
approved for such use by  the  commissioner  of  the  office  of  mental
health,  in  consultation  with  the  commissioner  of  health  and  the
superintendent. Approved clinical review criteria shall have inter rater

reliability testing completed by  December  thirty-first,  two  thousand
nineteen.
(13)  Establishment  of  a  requirement  that emergency department and
inpatient hospital services rendered by  a  general  hospital  certified
pursuant  to article twenty-eight of the public health law to an insured
to treat COVID-19 during a declared state disaster emergency related  to
COVID-19  shall  not be denied on retrospective review on the basis that
such services were not medically necessary.
(14) The superintendent, in  consultation  with  the  commissioner  of
health,   may,   as   necessary,   promulgate   by   regulation  special
considerations and processes for utilization review related to medically
fragile  children.  Such  regulations  may  include,   at   a   minimum,
considerations and processes related to:
(i)   medically   necessary  covered  services  to  medically  fragile
children;
(ii)  determinations  specific  to  the  needs  of  medically  fragile
children;
(iii) stabilization and discharge plans; and
(iv) payment for the care of medically fragile children.
(b)  Each  utilization  review  agent  shall  assure  adherence to the
requirements  stated  in  subsection  (a)  of  this   section   by   all
contractors, subcontractors, subvendors, agents and employees affiliated
by contract or otherwise with such utilization review agent.