§ 4903 — Utilization review determinations

§ 4903. Utilization review determinations. (a) Utilization review\nshall be conducted by:\n (1) Administrative personnel trained in the principles and procedures\nof intake screening and data collection, provided however, that\nadministrative personnel shall only perform intake screening, data\ncollection and non-clinical review functions and shall be supervised by\na licensed health care professional;\n (2) A health care professional who is appropriately trained in the\nprinciples, procedures and standards of such utilization review agent;\nprovided, however, that a health care professional who is not a clinical\npeer reviewer may not render an adverse determination; and\n (3) A clinical peer reviewer where the review involves an adverse\ndetermination.\n (b) (1) A utilization review agent shall make a utilization review\ndetermination involving health care services which require\npre-authorization and provide notice of a determination to the insured\nor insured's designee and the insured's health care provider by\ntelephone and in writing within three business days of receipt of the\nnecessary information, or for inpatient rehabilitation services\nfollowing an inpatient hospital admission provided by a hospital or\nskilled nursing facility, within one business day of receipt of the\nnecessary information. The notification shall identify: (i) whether the\nservices are considered in-network or out-of-network; (ii) whether the\ninsured will be held harmless for the services and not be responsible\nfor any payment, other than any applicable co-payment, co-insurance or\ndeductible; (iii) as applicable, the dollar amount the health care plan\nwill pay if the service is out-of-network; and (iv) as applicable,\ninformation explaining how an insured may determine the anticipated\nout-of-pocket cost for out-of-network health care services in a\ngeographical area or zip code based upon the difference between what the\nhealth care plan will reimburse for out-of-network health care services\nand the usual and customary cost for out-of-network health care\nservices.\n (2) With regard to individual or group contracts authorized pursuant\nto article thirty-two, forty-three or forty-seven of this chapter or\narticle forty-four of the public health law, for utilization and review\ndeterminations involving proposed mental health and/or substance use\ndisorder services where the insured or the insured's designee has, in a\nformat prescribed by the superintendent, certified in the request that\nthe proposed services are for an individual who will be appearing, or\nhas appeared, before a court of competent jurisdiction and may be\nsubject to a court order requiring such services, the utilization review\nagent shall make a determination and provide notice of such\ndetermination to the insured or the insured's designee by telephone\nwithin seventy-two hours of receipt of the request. Written notice of\nthe determination to the insured or insured's designee shall follow\nwithin three business days. Where feasible, such telephonic and written\nnotice shall also be provided to the court.\n (c) (1) A utilization review agent shall make a determination\ninvolving continued or extended health care services, additional\nservices for an insured undergoing a course of continued treatment\nprescribed by a health care provider, or requests for inpatient\nsubstance use disorder treatment, or home health care services following\nan inpatient hospital admission, and shall provide notice of such\ndetermination to the insured or the insured's designee, which may be\nsatisfied by notice to the insured's health care provider, by telephone\nand in writing within one business day of receipt of the necessary\ninformation except, with respect to home health care services following\nan inpatient hospital admission, within seventy-two hours of receipt of\nthe necessary information when the day subsequent to the request falls\non a weekend or holiday and except, with respect to inpatient substance\nuse disorder treatment, within twenty-four hours of receipt of the\nrequest for services when the request is submitted at least twenty-four\nhours prior to discharge from an inpatient admission. Notification of\ncontinued or extended services shall include the number of extended\nservices approved, the new total of approved services, the date of onset\nof services and the next review date.\n (2) Provided that a request for home health care services and all\nnecessary information is submitted to the utilization review agent prior\nto discharge from an inpatient hospital admission pursuant to this\nsubsection, a utilization review agent shall not deny, on the basis of\nmedical necessity or lack of prior authorization, coverage for home\nhealth care services while a determination by the utilization review\nagent is pending.\n (3) Provided that a request for inpatient treatment for substance use\ndisorder is submitted to the utilization review agent at least\ntwenty-four hours prior to discharge from an inpatient admission\npursuant to this subsection, a utilization review agent shall not deny,\non the basis of medical necessity or lack of prior authorization,\ncoverage for the inpatient substance use disorder treatment while a\ndetermination by the utilization review agent is pending.\n (c-1) A utilization review agent shall grant a step therapy protocol\noverride determination within seventy-two hours of the receipt of\ninformation that includes supporting rationale and documentation from a\nhealth care professional which demonstrates that:\n (1) The required prescription drug or drugs is contraindicated or will\nlikely cause an adverse reaction by or physical or mental harm to the\ninsured;\n (2) The required prescription drug or drugs is expected to be\nineffective based on the known clinical history and conditions of the\ninsured and the insured's prescription drug regimen;\n (3) The insured has tried the required prescription drug or drugs\nwhile under their current or a previous health insurance or health\nbenefit plan, or another prescription drug or drugs in the same\npharmacologic class or with the same mechanism of action and such\nprescription drug or drugs was discontinued due to lack of efficacy or\neffectiveness, diminished effect, or an adverse event;\n (4) The insured is stable on a prescription drug or drugs selected by\ntheir health care professional for the medical condition under\nconsideration, provided that this shall not prevent a utilization review\nagent from requiring an insured to try an AB-rated generic equivalent\nprior to providing coverage for the equivalent brand name prescription\ndrug or drugs; or\n (5) The required prescription drug or drugs is not in the best\ninterest of the insured because it will likely cause a significant\nbarrier to the insured's adherence to or compliance with the insured's\nplan of care, will likely worsen a comorbid condition of the insured, or\nwill likely decrease the covered individual's ability to achieve or\nmaintain reasonable functional ability in performing daily activities.\n (c-2) For an insured with a medical condition that places the health\nof the insured in serious jeopardy without the prescription drug or\ndrugs prescribed by the insured's health care professional, the step\ntherapy protocol override determination shall be granted within\ntwenty-four hours of the receipt of information that includes supporting\nrationale and documentation from a health care professional\ndemonstrating one or more of the standards provided for in subsection\n(c-1) of this section.\n (c-3) Upon a determination that the step therapy protocol should be\noverridden, the health care plan shall authorize immediate coverage for\nthe prescription drug prescribed by the insured's treating health care\nprofessional. Any approval of a step therapy protocol override\ndetermination request shall be honored until the lesser of either\ntreatment duration based on current evidence-based treatment guidelines\nor twelve months following the date of the approval of the request or\nrenewal of the insured's coverage.\n (d) A utilization review agent shall make a utilization review\ndetermination involving health care services which have been delivered\nwithin thirty days of receipt of the necessary information.\n (e) (1) Notice of an adverse determination made by a utilization\nreview agent shall be in writing and must include:\n (i) the reasons for the determination including the clinical\nrationale, if any;\n (ii) instructions on how to initiate standard appeals and expedited\nappeals pursuant to section four thousand nine hundred four and an\nexternal appeal pursuant to section four thousand nine hundred fourteen\nof this article;\n (iii) notice of the availability, upon request of the insured, or the\ninsured's designee, of the clinical review criteria relied upon to make\nsuch determination. Such notice shall also specify what, if any,\nadditional necessary information must be provided to, or obtained by,\nthe utilization review agent in order to render a decision on the\nappeal; and\n (iv) for an adverse determination related to a step therapy protocol\noverride request, information that includes the clinical review criteria\nrelied upon to make such determination and any applicable alternative\nprescription drugs subject to the step therapy protocol of the\nutilization review agent.\n (2) A utilization review agent may provide notice of an adverse\ndetermination related to a step therapy protocol override determination\nelectronically pursuant to subsection (i) of this section, including by\nelectronic mail or through the health care plan's member portal and\nprovider portal. An electronic notice of such an adverse determination\nmay meet the requirements of subparagraph (iv) of paragraph one of this\nsubsection by linking to information posted on the website of the health\ncare plan.\n (f) In the event that a utilization review agent renders an adverse\ndetermination without attempting to discuss such matter with the\ninsured's health care provider who specifically recommended the health\ncare service, procedure or treatment under review, such health care\nprovider shall have the opportunity to request a reconsideration of the\nadverse determination. Except in cases of retrospective reviews, such\nreconsideration shall occur within one business day of receipt of the\nrequest and shall be conducted by the insured's health care provider and\nthe clinical peer reviewer making the initial determination or a\ndesignated clinical peer reviewer if the original clinical peer reviewer\ncannot be available. In the event that the adverse determination is\nupheld after reconsideration, the utilization review agent shall provide\nnotice as required pursuant to subsection (e) of this section. Nothing\nin this section shall preclude the insured from initiating an appeal\nfrom an adverse determination.\n (g) Failure by the utilization review agent to make a determination\nwithin the time periods prescribed in this section shall be deemed to be\nan adverse determination subject to appeal pursuant to section four\nthousand nine hundred four of this title, provided, however, that\nfailure to meet such time periods for a step therapy protocol as defined\nin subsection (g-9) of section forty-nine hundred of this title or a\nstep therapy protocol override determination pursuant to subsections\n(c-1), (c-2) and (c-3) of this section shall be deemed to be an override\nof the step therapy protocol. A utilization review agent's failure to\ncomply with any of the step therapy protocol requirements required in\nparagraphs fifteen and sixteen of subsection (a) of section four\nthousand nine hundred two of this title shall be considered a basis for\ngranting an override of the step therapy protocol, absent fraud.\n (h) The superintendent, in conjunction with the commissioner of\nhealth, shall develop standards for prior authorization requests to be\nutilized by all health care plans for the purposes of submitting a\nrequest for a utilization review determination for coverage of\nprescription drug benefits under this article. The department and the\ndepartment of health, in development of the standards, shall take into\nconsideration existing electronic prior authorization standards\nincluding National Council for Prescription Drug Programs (NCPDP)\nelectronic prior authorization standard transactions.\n (i) A utilization review agent shall have procedures for obtaining an\ninsured's, or insured's designee's, preference for receiving\nnotifications, which shall be in accordance with applicable federal law\nand with guidance developed by the superintendent. Written and telephone\nnotification to an insured or the insured's designee under this section\nmay be provided by electronic means where the insured or the insured's\ndesignee has informed the utilization review agent in advance of a\npreference to receive such notifications by electronic means. A\nutilization review agent shall permit the insured and the insured's\ndesignee to change the preference at any time. To the extent\npracticable, such written and telephone notification to the insured's\nhealth care provider shall be transmitted electronically, in a manner\nand in a form agreed upon by the parties. The utilization review agent\nshall retain documentation of preferred notification methods and present\nsuch records to the superintendent upon request.\n