§ 4909 — Site of service clinical review

§ 4909. Site of service clinical review. 1. For purposes of this\nsection:\n (a) "Free-standing ambulatory surgical center" shall mean a diagnostic\nand treatment center authorized pursuant to article twenty-eight of this\nchapter and operated independently from a hospital.\n (b) "Health care plan" shall mean an insurer, a corporation organized\npursuant to article forty-three of the insurance law, a health\nmaintenance organization certified pursuant to article forty-four of\nthis chapter, a municipal cooperative health benefit plan certified\npursuant to article forty-seven of the insurance law, and a student\nhealth plan established or maintained pursuant to section one thousand\none hundred twenty-four of the insurance law, that issues a health\ninsurance policy or contract or that arranges for care and services for\nmembers under a contract with the department with a network of health\ncare providers and utilizes site of service clinical review to determine\ncoverage for services delivered by network participating providers.\n (c) "Hospital-based outpatient clinic" shall mean a clinic authorized\npursuant to article twenty-eight of this chapter and listed on a\nhospital's operating certificate.\n (d) "Site of service clinical review" shall mean clinical criteria\napplied by a health care plan for the purpose of determining whether\nnon-urgent outpatient medical procedures and surgeries will be covered\nfor a given insured or enrollee when rendered by a network participating\nprovider at a hospital-based outpatient clinic rather than a\nfree-standing ambulatory surgical center.\n 2. Site of service clinical review shall be deemed utilization review\nin accordance with and subject to the requirements and protections of\nthis article and article forty-nine of the insurance law, including the\nright to internal and external appeal of denials related to site of\nservice clinical review.\n 3. Site of service clinical review shall consider the insured's health\nand safety, choice of health care provider, and timely access to care\nand shall not be based solely on cost.\n 4. A health care plan that utilizes site of service clinical review\nthat is intended to direct insureds and enrollees to free-standing\nambulatory surgical centers shall be able to demonstrate to the\ndepartment that it has an adequate network of free-standing ambulatory\nsurgical center providers to meet the health needs of insureds and\nenrollees and to provide an appropriate choice of providers sufficient\nto render the services covered under the policy or contract. Such\nnetwork shall be in compliance with network adequacy standards\nestablished by the commissioner and article forty-four of this chapter.\n 5. Except as provided in subdivision seven of this section, starting\nJanuary first, two thousand twenty-four, a health care plan that\nutilizes a site of service clinical review shall deliver a notice\ndisclosing and clearly explaining the site of service clinical review\nto:\n (a) policyholders, contract holders, insureds, and enrollees and\nprospective policyholders, contract holders, insureds, and enrollees at\nthe time of plan and policy or contract selection and at least ninety\ndays prior to the implementation of new site of service clinical review\nor modification of existing site of service clinical review. Such notice\nshall include the specific services under the site of service review\npolicy, a statement that site of service clinical review may limit the\nsettings in which services covered under the policy or contract may be\nprovided and render a network participating provider unable to perform a\nservice; shall disclose to insureds or enrollees any quality or cost\ndifferential, including differences in out-of-pocket costs, between the\nhospital-based outpatient clinic and the free-standing ambulatory\nsurgical center when services at a hospital-based outpatient clinic are\nrequested; and shall set forth any rights the insured or enrollee may\nhave to obtain the service at a hospital-based outpatient clinic through\na utilization review appeal. Notifications shall also be made at any\nother time upon the insured's or enrollee's request;\n (b) network participating providers at least ninety days prior to\nimplementation. A health care plan shall also inform providers of the\nprocess for requesting coverage of a service in a hospital-based\noutpatient clinic setting, including the right to request a real time\nclinical peer to peer discussion as part of the authorization process;\nand\n (c) the commissioner, at least forty-five days prior to notifying\npolicyholders, contract holders, insureds and enrollees and prospective\npolicyholders, contract holders, insureds and enrollees and network\nparticipating providers in accordance with this subdivision. Such notice\nto the commissioner shall include (i) draft communications to the\nforegoing persons for purposes of complying with this subdivision and\n(ii) an explanation of how the site of service clinical review selected\nby the health care plan complies with this article and article\nforty-nine of the insurance law.\n 6. A health care plan's provider directory shall explain that even\nthough a provider is participating in the network, a site of service\nclinical review may affect where services will need to be obtained and\nwhether the provider will be available to provide such service, as\napplicable.\n 7. A health care plan that has implemented site of service clinical\nreview prior to January first, two thousand twenty-four that is not in\ncompliance with this section shall revise such site of service clinical\nreview to comply with this section and deliver the notices required\nunder subdivision five of this section at the beginning of the open\nenrollment period for individual health insurance policies and\ncontracts, and for group health insurance policies and contracts, prior\nto January first, two thousand twenty-four.\n 8. Starting January first, two thousand twenty-four, at a minimum, a\nhealth care plan shall approve a request for authorization for a service\ncovered under the policy or contract and requested to be performed by a\nnetwork participating provider at a hospital-based outpatient clinic in\nthe following situations:\n (a) the procedure cannot be safely performed in a free-standing\nambulatory surgical center due to the insured's or enrollee's health\ncondition;\n (b) there is no free-standing ambulatory surgical center capacity in\nthe insured's or enrollee's geographic area; or\n (c) the provision of health care services at a free-standing\nambulatory surgical center would result in undue delay.\n 9. Starting January first, two thousand twenty-four, site of service\nclinical review criteria developed by health care plans shall also take\ninto consideration whether:\n (a) the insured's or enrollee's treating network participating\nprovider recommends, based on a written clinical justification submitted\nto the health care plan, that the service be provided at a\nhospital-based outpatient clinic; or\n (b) the insured or enrollee has requested a particular network\nparticipating provider who performs the requested service in a\nhospital-based outpatient clinic because the insured or enrollee is\nundergoing a continuing course of treatment with the participating\nprovider or because the insured has previously obtained the requested\nservice from the participating provider, and the provider is not\ncredentialed at any free-standing ambulatory surgical center in the\nservice area and is not able to be credentialed within ninety days\nfollowing the submission of the authorization request to the health care\nplan.\n