Senate Bill S3909

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3909

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 3, 2009
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee 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
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01102-01-9
              

S. 3909                             2

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:
  (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,

S. 3909                             3

  (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.