§ 3238 — Pre-authorization of health care services

§ 3238. Pre-authorization of health care services. (a) An insurer,\ncorporation organized pursuant to article forty-three of this chapter,\nmunicipal cooperative health benefits plan certified pursuant to article\nforty-seven of this chapter, or health maintenance organization and\nother organizations certified pursuant to article forty-four of the\npublic health law ("health plan") shall pay claims for a health care\nservice for which a pre-authorization was required by, and received\nfrom, the health plan prior to the rendering of such health care\nservice, unless:\n (1) (i) the insured, subscriber, or enrollee was not a covered person\nat the time the health care service was rendered.\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, a health plan shall not deny a claim on this basis if the\ninsured's, subscriber's or enrollee's coverage was retroactively\nterminated more than one hundred twenty days after the date of the\nhealth care service, provided that the claim is submitted within ninety\ndays after the date of the health care service. If the claim is\nsubmitted more than ninety days after the date of the health care\nservice, the health plan shall have thirty days after the claim is\nreceived to deny the claim on the basis that the insured, subscriber or\nenrollee was not a covered person on the date of the health care\nservice.\n (2) the submission of the claim with respect to an insured, subscriber\nor enrollee was not timely under the terms of the applicable provider\ncontract, if the claim is submitted by a provider, or the policy or\ncontract, if the claim is submitted by the insured, subscriber or\nenrollee;\n (3) at the time the pre-authorization was issued, the insured,\nsubscriber or enrollee had not exhausted contract or policy benefit\nlimitations based on information available to the health plan at such\ntime, but subsequently exhausted contract or policy benefit limitations\nafter authorization was issued; provided, however, that the health plan\nshall include in the notice of determination required pursuant to\nsubsection (b) of section four thousand nine hundred three of this\nchapter and subdivision two of section forty-nine hundred three of the\npublic health law that the visits authorized might exceed the limits of\nthe contract or policy and accordingly would not be covered under the\ncontract or policy;\n (4) the pre-authorization was based on materially inaccurate or\nincomplete information provided by the insured, subscriber or enrollee,\nthe designee of the insured, subscriber or enrollee, or the health care\nprovider such that if the correct or complete information had been\nprovided, such pre-authorization would not have been granted;\n (5) the pre-authorized service was related to a pre-existing condition\nthat was excluded from coverage; or\n (6) there is a reasonable basis supported by specific information\navailable for review by the superintendent that the insured, subscriber\nor enrollee, the designee of the insured, subscriber or enrollee, or the\nhealth care provider has engaged in fraud or abuse.\n (b) Nothing in this section shall be construed to prohibit a health\nplan from denying continued or extended coverage as part of a concurrent\nreview of a health care service.\n (c)(1) If a health care provider, while providing a service or\nprocedure to treat a patient, determines that providing an additional or\nrelated service or procedure, such as a service or procedure to address\na co-morbid condition, is immediately necessary as part of such\ntreatment, and in the clinical judgment of the health care provider it\nis a medically timely service and it would not be medically advisable to\ninterrupt the provision of care to the patient in order to obtain\npre-authorization from a health plan for the additional or related\nservice or procedure, a denial of payment for the additional or related\nservice or procedure due to lack of pre-authorization shall be upheld on\nappeal only if it is determined that:\n (i) the additional or related service or procedure is not a covered\nbenefit;\n (ii) the additional or related service or procedure was not medically\nnecessary pursuant to section four thousand nine hundred four of this\nchapter or section forty-nine hundred four of the public health law;\n (iii) the additional or related service or procedure was experimental\nor investigational pursuant to section four thousand nine hundred four\nof this chapter or section forty-nine hundred four of the public health\nlaw; or\n (iv) one of the conditions set forth in paragraphs one through six of\nsubsection (a) of this section is met.\n (2) The provisions of this subsection shall apply to situations in\nwhich pre-authorization was required and received for the initial\nservice or procedure.\n (3) The provisions of this subsection shall apply without regard to\nwhether the current procedural terminology (CPT) code for the additional\nor related service or procedure is different than the CPT code for the\ninitial service or procedure.\n (d) Payment for such health care services shall be subject to a health\nplan's provider contracts or claims payment policies that are consistent\nwith applicable law, rule or regulation.\n (e) Nothing in this section shall be deemed to limit the right of a\nhealth plan to deny a claim if the health plan determines that it is not\nprimarily obligated to pay the claim because other insurance coverage\nexists that is primary, including but not limited to workers'\ncompensation and no-fault coverage.\n (f) Notification that a health care service is being provided shall\nnot constitute a request for pre-authorization of that health care\nservice for purposes of this section; provided, however, that if a\nhealth plan provides a written acknowledgement of the notification to\nthe health care provider, such acknowledgment shall clearly state that\nthe acknowledgment does not constitute a pre-authorization of the\nservices to be rendered.\n (g) Nothing in this section shall preclude a health care provider and\na health plan from agreeing to provisions different from those in this\nsection; provided, however, that any agreement that purports to waive,\nlimit, disclaim, or in any way diminish the rights of a health care\nprovider set forth in this section shall be void as contrary to public\npolicy.\n