N.Y. Insurance Law § 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.

* NB Effective until January 1, 2027

* (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-related

and addictive 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.

* NB Effective January 1, 2027

* (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.

* NB Effective until January 1, 2027

* (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-related and addictive 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-related and addictive 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-related and addictive 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-related and

addictive disorder treatment while a determination by the utilization

review agent is pending.

* NB Effective January 1, 2027

(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 care plan shall authorize immediate coverage for

the prescription drug prescribed by the insured's treating health care

professional. Any approval of a step therapy protocol override

determination request shall be honored until the lesser of either

treatment duration based on current evidence-based treatment guidelines

or twelve months following the date of the approval of the request or

renewal of the insured's coverage.

(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. A utilization review agent's failure to

comply with any of the step therapy protocol requirements required in

paragraphs fifteen and sixteen of subsection (a) of section four

thousand nine hundred two of this title shall be considered a basis for

granting an override of the step therapy protocol, absent fraud.

(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.