§ 4903 — Utilization review determinations

§ 4903. Utilization review determinations. 1. Utilization review shall\nbe conducted by:\n (a) 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 (b) 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 (c) A clinical peer reviewer where the review involves an adverse\ndetermination.\n 2. (a) 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 enrollee\nor enrollee's designee and the enrollee'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) and whether\nthe enrollee will be held harmless for the services and not be\nresponsible for any payment, other than any applicable co-payment or\nco-insurance; (iii) as applicable, the dollar amount the health care\nplan will pay if the service is out-of-network; and (iv) as applicable,\ninformation explaining how an enrollee 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 (b) With regard to individual or group contracts authorized pursuant\nto article forty-four of this chapter, for utilization review\ndeterminations involving proposed mental health and/or substance use\ndisorder services where the enrollee or the enrollee's designee has, in\na format prescribed by the superintendent of financial services,\ncertified in the request that the proposed services are for an\nindividual who will be appearing, or has appeared, before a court of\ncompetent jurisdiction and may be subject to a court order requiring\nsuch services, the utilization review agent shall make a determination\nand provide notice of such determination to the enrollee or the\nenrollee's designee by telephone within seventy-two hours of receipt of\nthe request. Written notice of the determination to the enrollee or\nenrollee's designee shall follow within three business days. Where\nfeasible, such telephonic and written notice shall also be provided to\nthe court.\n 3. (a) A utilization review agent shall make a determination involving\ncontinued or extended health care services, additional services for an\nenrollee undergoing a course of continued treatment prescribed by a\nhealth care provider, or requests for inpatient substance use disorder\ntreatment, or home health care services following an inpatient hospital\nadmission, and shall provide notice of such determination to the\nenrollee or the enrollee's designee, which may be satisfied by notice to\nthe enrollee's health care provider, by telephone and in writing within\none business day of receipt of the necessary information except, with\nrespect to home health care services following an inpatient hospital\nadmission, within seventy-two hours of receipt of the necessary\ninformation when the day subsequent to the request falls on a weekend or\nholiday and except, with respect to inpatient substance use disorder\ntreatment, within twenty-four hours of receipt of the request for\nservices when the request is submitted at least twenty-four hours prior\nto discharge from an inpatient admission. Notification of continued or\nextended services shall include the number of extended services\napproved, the new total of approved services, the date of onset of\nservices and the next review date.\n (b) 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\nsubdivision, 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 (c) 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 subdivision, 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 3-a. 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 (a) The required prescription drug or drugs is contraindicated, will\nlikely cause an adverse reaction by or physical or mental harm to the\nenrollee;\n (b) The required prescription drug or drugs is expected to be\nineffective based on the known clinical history and conditions of the\nenrollee and the enrollee's prescription drug regimen;\n (c) The enrollee 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 (d) The enrollee 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 (e) The required prescription drug or drugs is not in the best\ninterest of the enrollee because it will likely cause a significant\nbarrier to the enrollee's adherence to or compliance with the enrollee's\nplan of care, will likely worsen a comorbid condition of the enrollee,\nor will likely decrease the covered enrollee's ability to achieve or\nmaintain reasonable functional ability in performing daily activities.\n 3-b. For an enrollee 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 subdivision\nthree-a of this section.\n 3-c. Upon a determination that the step therapy protocol should be\noverridden, the health care plan shall authorize immediate coverage for\nthe prescription drug or drugs prescribed by the enrollee's treating\nhealth care professional. Any approval of a step therapy protocol\noverride determination request shall be honored until the lesser of\neither treatment duration based on current evidence-based treatment\nguidelines or twelve months following the date of the approval of the\nrequest or renewal of the enrollee's coverage.\n 4. 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 5. (a) Notice of an adverse determination made by a utilization review\nagent 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 and expedited appeals\npursuant to section forty-nine hundred four and an external appeal\npursuant to section forty-nine hundred fourteen of this article;\n (iii) notice of the availability, upon request of the enrollee, or the\nenrollee'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 (b) A utilization review agent may provide notice of an adverse\ndetermination related to a step therapy protocol override determination\nelectronically pursuant to subdivision nine of this section, including\nby electronic 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 (a) of this\nsubdivision by linking to information posted on the website of the\nhealth care plan.\n 6. In the event that a utilization review agent renders an adverse\ndetermination without attempting to discuss such matter with the\nenrollee'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 enrollee's health care provider\nand the 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 subdivision five of this section. Nothing\nin this section shall preclude the enrollee from initiating an appeal\nfrom an adverse determination.\n 7. 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\nforty-nine hundred four of this title, provided, however, that failure\nto meet such time periods for a step therapy protocol as defined in\nsubdivision seven-f-three of section forty-nine hundred of this title or\na step therapy protocol override determination pursuant to subdivisions\nthree-a, three-b and three-c of this section shall be deemed to be an\noverride of the step therapy protocol. A utilization review agent's\nfailure to comply with any of the step therapy protocol requirements\nrequired in subdivisions five and six of section forty-nine hundred two\nof this title shall be considered a basis for granting an override of\nthe step therapy protocol, absent fraud.\n 8. The commissioner, in conjunction with the superintendent of\nfinancial services, shall develop standards for prior authorization\nrequests to be utilized by all health care plans for the purposes of\nsubmitting a request for a utilization review determination for coverage\nof prescription drug benefits under this article. The department and the\ndepartment of financial services, in development of the standards, shall\ntake into consideration existing electronic prior authorization\nstandards including National Council for Prescription Drug Programs\n(NCPDP) electronic prior authorization standard transactions.\n 9. A utilization review agent shall have procedures for obtaining an\nenrollee's, or enrollee's designee's, preference for receiving\nnotifications, which shall be in accordance with applicable federal law\nand with guidance developed by the commissioner. Written and telephone\nnotification to an enrollee or the enrollee's designee under this\nsection may be provided by electronic means where the enrollee or the\nenrollee's designee has informed the organization in advance of\npreference to receive such notifications by electronic means. An\norganization shall permit the enrollee and the enrollee's designee to\nchange the preference at any time. To the extent practicable, such\nwritten and telephone notification to the enrollee's health care\nprovider shall be transmitted electronically, in a manner and in a form\nagreed upon by the parties. The utilization review agent shall retain\ndocumentation of preferred notification methods and present such records\nto the commissioner upon request.\n