N.Y. Insurance Law § 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.