S T A T E O F N E W Y O R K
________________________________________________________________________
729
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. GOTTFRIED, BING, CHRISTENSEN, DINOWITZ, GALEF,
PEOPLES-STOKES, MAGNARELLI, PAULIN, HOOPER, PHEFFER, FIELDS -- Multi-
Sponsored by -- M. of A. CYMBROWITZ, GLICK, HIKIND, JOHN, KELLNER,
LIFTON, McENENY, J. MILLER, J. RIVERA, P. RIVERA, SCARBOROUGH, SWEE-
NEY, TITUS, TOWNS, WEISENBERG -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law and the insurance law, in relation
to clarifying the grounds for an external appeal based on medical
necessity
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative findings and intent. Where there is a sound
medical and scientific basis for a health care service or procedure, a
patient should not be denied access to that care.
This legislation provides, in the external appeal process, that, where
a health care plan denies coverage on grounds of "medical necessity",
the insured shall have the opportunity to demonstrate, through his or
her health care professional, based on applicable medical and scientific
evidence, the patient's medical record, and any other patient informa-
tion, that the proposed health service or treatment is likely to be more
beneficial than any standard treatment or treatments for the patient's
condition or disease.
This legislation does not require a health care plan to cover any
health care service or treatment that would not otherwise be a covered
benefit for the insured.
S 2. Subparagraph (A) of paragraph (d) of subdivision 2 of section
4914 of the public health law, as added by chapter 586 of the laws of
1998, is amended to read as follows:
(A) MEDICAL NECESSITY. For external appeals requested pursuant to
paragraph (a) of subdivision two of section forty-nine hundred ten of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A LBD01102-01-9
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this title, the external appeal agent shall review the utilization
review agent's final adverse determination and, in accordance with the
provisions of this title, shall make a determination as to whether the
health care plan acted reasonably and with sound medical judgment and in
the best interest of the patient. When the external appeal agent makes
its determination, it shall consider the clinical standards of the plan,
the information provided concerning the patient, the attending [physi-
cian's] HEALTH CARE PROFESSIONAL'S recommendation, and applicable gener-
ally accepted practice guidelines developed by the federal government,
national or professional [medical] societies, boards and associations.
WHERE APPLICABLE, THE APPEAL SHALL BE GRANTED IF, AND TO THE EXTENT, THE
EXTERNAL APPEAL AGENT DETERMINES, UPON REVIEW OF THE APPLICABLE MEDICAL
AND SCIENTIFIC EVIDENCE, THE PATIENT'S MEDICAL RECORD, AND ANY OTHER
PERTINENT INFORMATION, THAT THE PROPOSED HEALTH SERVICE OR TREATMENT IS
LIKELY TO BE MORE BENEFICIAL THAN ANY STANDARD TREATMENT OR TREATMENTS
FOR THE PATIENT'S CONDITION OR DISEASE OR NO TREATMENT; IF THE SPECIFIC
HEALTH SERVICE OR TREATMENT RECOMMENDED BY THE HEALTH CARE PROFESSIONAL
WOULD NOT OTHERWISE BE EXCLUDED FROM COVERAGE UNDER THE POLICY ON
GROUNDS OTHER THAN MEDICAL NECESSITY.
Provided that such determination shall:
(i) be conducted only by one or a greater odd number of clinical peer
reviewers,
(ii) be accompanied by a notice of appeal determination which shall
include the reasons for the determination; provided, however, that where
the final adverse determination is upheld on appeal, the notice shall
include the clinical rationale, if any, for such determination,
(iii) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan,
(iv) be binding on the plan and the enrollee, and
(v) be admissible in any court proceeding.
S 3. Subparagraph (A) of paragraph 4 of subsection (b) of section 4914
of the insurance law, as added by chapter 586 of the laws of 1998, is
amended to read as follows:
(A) MEDICAL NECESSITY. For external appeals requested pursuant to
paragraph one of subsection (b) of section four thousand nine hundred
ten of this title, the external appeal agent shall review the utiliza-
tion review agent's final adverse determination and, in accordance with
the provisions of this title, shall make a determination as to whether
the health care plan acted reasonably and with sound medical judgment
and in the best interest of the patient. When the external appeal agent
makes its determination, it shall consider the clinical standards of the
plan, the information provided concerning the patient, the attending
[physician's] HEALTH CARE PROFESSIONAL'S recommendation, applicable and
generally accepted practice guidelines developed by the federal govern-
ment, national or professional [medical] societies, boards and associ-
ations. WHERE APPLICABLE, THE APPEAL SHALL BE GRANTED IF, AND TO THE
EXTENT, THE EXTERNAL APPEAL AGENT DETERMINES, UPON REVIEW OF THE APPLI-
CABLE MEDICAL AND SCIENTIFIC EVIDENCE, THE PATIENT'S MEDICAL RECORD, AND
ANY OTHER PERTINENT INFORMATION, THAT THE PROPOSED HEALTH SERVICE OR
TREATMENT IS LIKELY TO BE MORE BENEFICIAL THAN ANY STANDARD TREATMENT OR
TREATMENTS FOR THE PATIENT'S CONDITION OR DISEASE OR NO TREATMENT; IF
THE SPECIFIC HEALTH SERVICE OR TREATMENT RECOMMENDED BY THE HEALTH CARE
PROFESSIONAL WOULD NOT OTHERWISE BE EXCLUDED FROM COVERAGE UNDER THE
POLICY ON GROUNDS OTHER THAN MEDICAL NECESSITY. Provided that such
determination shall:
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(i) be conducted only by one or a greater odd number of clinical peer
reviewers,
(ii) be accompanied by a notice of appeal determination which shall
include the reasons for the determination; provided, however, that where
the final adverse determination is upheld on appeal, the notice shall
include the clinical rationale, if any, for such determination,
(iii) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan,
(iv) be binding on the plan and the insured, and
(v) be admissible in any court proceeding.
S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.