N.Y. Insurance Law § 4909: Site of service clinical review

§ 4909. Site of service clinical review. (a) For purposes of this

section:

(1) "Free-standing ambulatory surgical center" shall mean a diagnostic

and treatment center authorized pursuant to article twenty-eight of the

public health law and operated independently from a hospital.

(2) "Health care plan" shall mean an insurer, a corporation organized

pursuant to article forty-three of this chapter, a health maintenance

organization certified pursuant to article forty-four of the public

health law, a municipal cooperative health benefit plan certified

pursuant to article forty-seven of this chapter, and a student health

plan established or maintained pursuant to section one thousand one

hundred twenty-four of this chapter, that issues a health insurance

policy or contract or that arranges for care and services for members

under a contract with the department of health with a network of health

care providers and utilizes site of service clinical review to determine

coverage for services delivered by network participating providers.

(3) "Hospital-based outpatient clinic" shall mean a clinic authorized

pursuant to article twenty-eight of the public health law and listed on

a hospital's operating certificate.

(4) "Site of service clinical review" shall mean clinical criteria

applied by a health care plan for the purpose of determining whether

non-urgent outpatient medical procedures and surgeries will be covered

for a given insured or enrollee when rendered by a network participating

provider at a hospital-based outpatient clinic rather than a

free-standing ambulatory surgical center.

(b) Site of service clinical review shall be deemed utilization review

in accordance with and subject to the requirements and protections of

this article and article forty-nine of the public health law, including

the right to internal and external appeal of denials related to site of

service clinical review.

(c) Site of service clinical review shall consider the insured's

health and safety, choice of health care provider, and timely access to

care and shall not be based solely on cost.

(d) A health care plan that utilizes site of service clinical review

that is intended to direct insureds and enrollees to free-standing

ambulatory surgical centers shall be able to demonstrate to the

department or, as applicable, to the department of health, that it has

an adequate network of free-standing ambulatory surgical center

providers to meet the health needs of insureds and enrollees and to

provide an appropriate choice of providers sufficient to render the

services covered under the policy or contract. Such network shall be in

compliance with network adequacy standards established by the

superintendent and section three thousand two hundred forty-one of this

chapter.

(e) Except as provided in subsection (g) of this section, starting

January first, two thousand twenty-four, a health care plan that

utilizes a site of service clinical review shall deliver a notice

disclosing and clearly explaining the site of service clinical review

to:

(1) policyholders, contract holders, insureds, and enrollees and

prospective policyholders, contract holders, insureds, and enrollees at

the time of plan and policy or contract selection and at least ninety

days prior to the implementation of new site of service clinical review

or modification of existing site of service clinical review. Such notice

shall include the specific services under the site of service review

policy, a statement that site of service clinical review may limit the

settings in which services covered under the policy or contract may be

provided and render a network participating provider unable to perform a

service; shall disclose to insureds or enrollees any quality or cost

differential, including differences in out-of-pocket costs, between the

hospital-based outpatient clinic and the free-standing ambulatory

surgical center when services at a hospital-based outpatient clinic are

requested; and shall set forth any rights the insured or enrollee may

have to obtain the service at a hospital-based outpatient clinic through

a utilization review appeal. Notifications shall also be made at any

other time upon the insured's or enrollee's request;

(2) network participating providers at least ninety days prior to

implementation. A health care plan shall also inform providers of the

process for requesting coverage of a service in a hospital-based

outpatient clinic setting, including the right to request a real time

clinical peer to peer discussion as part of the authorization process;

and

(3) the superintendent and, as applicable, to the commissioner of

health, at least forty-five days prior to notifying policyholders,

contract holders, insureds and enrollees and prospective policyholders,

contract holders, insureds and enrollees and network participating

providers in accordance with this subsection. Such notice to the

superintendent and, as applicable, to the commissioner of health, shall

include (A) draft communications to the foregoing persons for purposes

of complying with this subsection and (B) an explanation of how the site

of service clinical review selected by the health care plan complies

with this article and article forty-nine of the public health law.

(f) A health care plan's provider directory shall explain that even

though a provider is participating in the network, a site of service

clinical review may affect where services will need to be obtained and

whether the provider will be available to provide such service, as

applicable.

(g) A health care plan that has implemented site of service clinical

review prior to January first, two thousand twenty-four that is not in

compliance with this section shall revise such site of service clinical

review to comply with this section and deliver the notices required

under subsection (e) of this section at the beginning of the open

enrollment period for individual health insurance policies and

contracts, and for group health insurance policies and contracts, prior

to January first, two thousand twenty-four.

(h) Starting January first, two thousand twenty-four, at a minimum, a

health care plan shall approve a request for authorization for a service

covered under the policy or contract and requested to be performed by a

network participating provider at a hospital-based outpatient clinic in

the following situations:

(1) the procedure cannot be safely performed in a free-standing

ambulatory surgical center due to the insured's or enrollee's health

condition;

(2) there is no free-standing ambulatory surgical center capacity in

the insured's or enrollee's geographic area; or

(3) the provision of health care services at a free-standing

ambulatory surgical center would result in undue delay.

(i) Starting January first, two thousand twenty-four, site of service

clinical review criteria developed by health care plans shall also take

into consideration whether:

(1) the insured's or enrollee's treating network participating

provider recommends, based on a written clinical justification submitted

to the health care plan, that the service be provided at a

hospital-based outpatient clinic; or

(2) the insured or enrollee has requested a particular network

participating provider who performs the requested service in a

hospital-based outpatient clinic because the insured or enrollee is

undergoing a continuing course of treatment with the participating

provider or because the insured has previously obtained the requested

service from the participating provider, and the provider is not

credentialed at any free-standing ambulatory surgical center in the

service area and is not able to be credentialed within ninety days

following the submission of the authorization request to the health care

plan.