N.Y. Insurance Law § 4905: Required and prohibited practices

§ 4905. Required and prohibited practices. (a) Each utilization review

agent shall have written procedures for assuring that patient-specific

information obtained during the process of utilization review will be:

(1) kept confidential in accordance with applicable state and federal

laws; and

(2) shared only with the insured, the insured's designee, the

insured's health care provider and those who are authorized by law to

receive such information.

(b) Summary data shall not be considered confidential if it does not

provide information to allow identification of individual patients.

(c) 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.

(d) 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:

(1) 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

(2) any other method that encourages the rendering of an adverse

determination.

(e) If a health care service has been specifically preauthorized or

approved for an insured 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 insured,

during the same course of treatment.

* (f) Utilization review shall not be conducted more frequently than

is reasonably required to assess whether the health care services under

review are medically necessary.

* NB Effective until January 1, 2027

* (f) Utilization review shall not be conducted more frequently than

is reasonably required to assess whether the health care services under

review are medically necessary provided, however, that utilization

review shall not be conducted more than once per year for an outpatient

course of treatment for a chronic health condition starting from the

date of a pre-authorization approval for the course of treatment unless

the insured's attending provider recommends a change to the course of

treatment, then utilization review may be conducted for the new course

of treatment. Any new treatment, testing or procedures related to the

specific medical problem, condition, or illness being managed but not

already included in the approved course of treatment may be subject to a

separate pre-authorization.

* NB Effective January 1, 2027

(g) 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.

(h) 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.

(i) The utilization review agent shall not undertake utilization

review at the site of the provision of health care services unless the

utilization review agent:

(1) 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;

(2) Whenever possible, schedules review at least one business day in

advance with the appropriate health care provider;

(3) 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; and

(4) Obtains consent from the insured or the insured's designee before

interviewing the patient's family, or observing any health care service

being provided to the insured.

(5) This subsection shall not apply to health care professionals

engaged in providing care or case management or making on-site discharge

decisions.

(j) A utilization review agent shall not base an adverse determination

on a refusal to consent to observing any health care service.

(k) 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 insured, the insured's designee or the

insured's health care provider, in which case the insured must be

notified, and has complied with all provisions of subsection (i) of this

section.

(l) 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

insured, the insured's designee, or the insured's health care provider

for, or to discourage such insured, the insured's designee, or the

insured's health care provider from undertaking an appeal, dispute

resolution or judicial review of an adverse determination.

(m) In no event shall an insured, an insured's designee, an insured'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.

(n) 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.

(o) A health care professional providing health care services to an

insured shall be prohibited from serving as the clinical peer reviewer

for such insured in connection with the health care services being

provided to the insured.