S T A T E O F N E W Y O R K
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9946
I N A S S E M B L Y
April 26, 2012
___________
Introduced by M. of A. MORELLE -- read once and referred to the Commit-
tee on Insurance
AN ACT to amend the public health law and the insurance law, in relation
to utilization review and denial of claims
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 7 of section 4903 of the public health law, as
added by chapter 586 of the laws of 1998, is amended to read as follows:
7. Failure by the utilization review agent to make a determination
within the time periods prescribed in this section shall be deemed to be
an [adverse determination subject to appeal pursuant to section forty
nine hundred four of this title] APPROVAL.
S 2. Subsection (g) of section 4903 of the insurance law, as added by
chapter 586 of the laws of 1998, is amended to read as follows:
(g) Failure by the utilization review agent to make a determination
within the time periods prescribed in this section shall be deemed to be
an [adverse determination subject to appeal pursuant to section four
thousand nine hundred four of this title] APPROVAL.
S 3. Section 3224-a of the insurance law is amended by adding a new
subsection (i) to read as follows:
(I)(1) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF SUBSECTION (B) OF
THIS SECTION, AN INSURER OR ORGANIZATION OR CORPORATION LICENSED OR
CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OR ARTICLE FORTY-SEVEN OF THIS
CHAPTER OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL NOT DENY
PAYMENT FOR A CLAIM SUBMITTED BY A GENERAL HOSPITAL CERTIFIED PURSUANT
TO ARTICLE TWENTY-EIGHT OF THE PUBLIC HEALTH LAW ON THE BASIS OF AN
ADMINISTRATIVE OR TECHNICAL DEFECT, PROVIDED THAT AT LEAST NINETY
PERCENT OF THE CLAIMS OTHERWISE SUBMITTED BY THE GENERAL HOSPITAL TO
THAT INSURER OR ORGANIZATION OR CORPORATION IN THE PREVIOUS CALENDAR
YEAR HAD NO ADMINISTRATIVE OR TECHNICAL DEFECT. FOR PURPOSES OF THIS
SECTION, ADMINISTRATIVE OR TECHNICAL DEFECT MEANS FAILURE TO FOLLOW
CONTRACTED PROCEDURES IN ACCESSING SERVICES, INCLUDING, BUT NOT LIMITED
TO, FAILURE TO REQUEST APPROPRIATE OR NECESSARY AUTHORIZATION OF AN
ADMISSION OR PROVISION OF SERVICES AND FAILURE TO PROVIDE PROPER NOTIFI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15258-01-2
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CATION OF AN ADMISSION OR THE PROVISION OF SERVICES. THE INSURER OR
ORGANIZATION OR CORPORATION SHALL LIMIT ITS REVIEW OF SUCH CLAIMS TO
MEDICAL NECESSITY PURSUANT TO ARTICLE FORTY-NINE OF THIS CHAPTER OR
ARTICLE FORTY-NINE OF THE PUBLIC HEALTH LAW. IF THE CLAIM IS FOUND TO BE
MEDICALLY NECESSARY, THE INSURER OR ORGANIZATION OR CORPORATION SHALL
PROCESS THE CLAIM PURSUANT TO THIS SECTION. NOTHING IN THIS SUBSECTION
SHALL BE DEEMED TO PRECLUDE A GENERAL HOSPITAL AND AN INSURER OR ORGAN-
IZATION OR CORPORATION FROM AGREEING TO A PERCENTAGE LESS THAN NINETY
PERCENT.
(2) FOR CLAIMS SUBMITTED BY A GENERAL HOSPITAL CERTIFIED PURSUANT TO
ARTICLE TWENTY-EIGHT OF THE PUBLIC HEALTH LAW WITH AN ADMINISTRATIVE OR
TECHNICAL DEFECT AND THAT ARE SUBJECT TO AN ADMINISTRATIVE OR TECHNICAL
DENIAL, THE INSURER OR ORGANIZATION OR CORPORATION LICENSED OR CERTIFIED
PURSUANT TO ARTICLE FORTY-THREE OR ARTICLE FORTY-SEVEN OF THIS CHAPTER
OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL PROVIDE WRITTEN
NOTICE TO THE GENERAL HOSPITAL STATING THE GENERAL HOSPITAL HAD FAILED
TO COMPLY WITH THE NINETY PERCENT STANDARD SET FORTH IN PARAGRAPH ONE OF
THIS SUBSECTION IN THE PRIOR YEAR AND IS THEREFORE SUBJECT TO A DENIAL
BASED ON AN ADMINISTRATIVE OR TECHNICAL DEFECT. THE NOTICE MUST ALSO
IDENTIFY THE SPECIFIC ADMINISTRATIVE AND/OR TECHNICAL DEFECT THAT
RESULTED IN THE CLAIM'S DENIAL.
S 4. Subsection (b) of section 3224-a of the insurance law, as amended
by chapter 237 of the laws of 2009, is amended to read as follows:
(b) In a case where the obligation of an insurer or an organization or
corporation licensed or certified pursuant to article forty-three or
forty-seven of this chapter or article forty-four of the public health
law to pay a claim or make a payment for health care services rendered
is not reasonably clear due to a good faith dispute regarding the eligi-
bility of a person for coverage, the liability of another insurer or
corporation or organization for all or part of the claim, the amount of
the claim, the benefits covered under a contract or agreement, or the
manner in which services were accessed or provided, an insurer or organ-
ization or corporation shall pay any undisputed portion of the claim in
accordance with this subsection and notify the policyholder, covered
person or health care provider in writing within thirty calendar days of
the receipt of the claim:
(1) that it is not obligated to pay the claim or make the medical
payment, stating the specific reasons why it is not liable; or
(2) to request all additional information needed to determine liabil-
ity to pay the claim or make the health care payment.
IF THE SPECIFIC REASON PROVIDED IN ACCORDANCE WITH PARAGRAPH ONE OF
THIS SUBSECTION FOR FAILURE TO PAY THE FULL CLAIM AS SUBMITTED IS THE
ADJUSTMENT OF A PARTICULAR CODING TO A PATIENT INCLUDING THE ASSIGNMENT
OF DIAGNOSIS AND PROCEDURE, THE HEALTH CARE PROVIDER MAY RESUBMIT THE
AFFECTED CLAIM OR BILL FOR HEALTH CARE SERVICES WITH THE RELATED MEDICAL
RECORD, WHICH MUST BE REVIEWED BY THE INSURER OR THE ORGANIZATION OR
CORPORATION LICENSED OR CERTIFIED PURSUANT TO ARTICLE FORTY-THREE OR
FORTY-SEVEN OF THIS CHAPTER OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH
LAW. Upon receipt of the information requested in paragraph two of this
subsection, or THE MEDICAL RECORD OR an appeal of a claim or bill for
health care services denied pursuant to paragraph one of this
subsection, an insurer or organization or corporation licensed or certi-
fied pursuant to article forty-three or forty-seven of this chapter or
article forty-four of the public health law shall comply with subsection
(a) of this section. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF
ARTICLE FORTY-NINE OF THE PUBLIC HEALTH LAW, ARTICLE FORTY-NINE OF THIS
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CHAPTER, OR ANY OTHER PROVISION OF LAW, IF THE DISPUTED PORTION OF A
CLAIM IS DENIED AFTER RESUBMISSION AND REVIEW OF THE MEDICAL RECORD
PURSUANT TO THIS SUBSECTION DUE TO THE ADJUSTMENT OF A PARTICULAR CODING
TO A PATIENT INCLUDING THE ASSIGNMENT OF DIAGNOSIS AND PROCEDURE, THE
HEALTH CARE PROVIDER MAY SUBMIT AN EXTERNAL APPEAL TO BE PROCESSED IN
ACCORDANCE WITH SECTION FOUR THOUSAND NINE HUNDRED FOURTEEN OF THE
PUBLIC HEALTH LAW OR SECTION FOUR THOUSAND NINE HUNDRED FOURTEEN OF THIS
CHAPTER.
S 5. Paragraph 1 of subsection (b) of section 4914 of the insurance
law, as amended by chapter 219 of the laws of 2011, is amended to read
as follows:
(1) The insured shall have four months to initiate an external appeal
after the insured receives notice from the health care plan, or such
plan's utilization review agent if applicable, of a final adverse deter-
mination or denial, or after both the plan and the insured have jointly
agreed to waive any internal appeal, or after the insured is deemed to
have exhausted or is not required to complete any internal appeal pursu-
ant to section 2719 of the Public Health Service Act, 42 U.S.C. S
300gg-19. Where applicable, the insured's health care provider shall
have [forty-five days] FOUR MONTHS to initiate an external appeal after
the insured or the insured's health care provider, as applicable,
receives notice from the health care plan, or such plan's utilization
review agent if applicable, of a final adverse determination or denial
or after both the plan and the insured have jointly agreed to waive any
internal appeal. Such request shall be in writing in accordance with the
instructions and in such form prescribed by subsection (e) of this
section. The insured, and the insured's health care provider where
applicable, shall have the opportunity to submit additional documenta-
tion with respect to such appeal to the external appeal agent within the
applicable time period above; provided however that when such documenta-
tion represents a material change from the documentation upon which the
utilization review agent based its adverse determination or upon which
the health plan based its denial, the health plan shall have three busi-
ness days to consider such documentation and amend or confirm such
adverse determination.
S 6. Paragraph (a) of subdivision 2 of section 4914 of the public
health law, as amended by chapter 219 of the laws of 2011, is amended to
read as follows:
(a) The enrollee shall have four months to initiate an external appeal
after the enrollee receives notice from the health care plan, or such
plan's utilization review agent if applicable, of a final adverse deter-
mination or denial or after both the plan and the enrollee have jointly
agreed to waive any internal appeal, or after the enrollee is deemed to
have exhausted or is not required to complete any internal appeal pursu-
ant to section 2719 of the Public Health Service Act, 42 U.S.C. S
300gg-19. Where applicable, the enrollee's health care provider shall
have [forty-five days] FOUR MONTHS to initiate an external appeal after
the enrollee or the enrollee's health care provider, as applicable,
receives notice from the health care plan, or such plan's utilization
review agent if applicable, of a final adverse determination or denial
or after both the plan and the enrollee have jointly agreed to waive any
internal appeal. Such request shall be in writing in accordance with the
instructions and in such form prescribed by subdivision five of this
section. The enrollee, and the enrollee's health care provider where
applicable, shall have the opportunity to submit additional documenta-
tion with respect to such appeal to the external appeal agent within the
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applicable time period above; provided however that when such documenta-
tion represents a material change from the documentation upon which the
utilization review agent based its adverse determination or upon which
the health plan based its denial, the health plan shall have three busi-
ness days to consider such documentation and amend or confirm such
adverse determination.
S 7. Subdivision 5 of section 4905 of the public health law, as added
by chapter 705 of the laws of 1996, is amended to read as follows:
5. (A) If a health care service has been specifically pre-authorized
or approved for an enrollee by a utilization review agent, a utilization
review agent shall not, pursuant to retrospective review, revise or
modify the specific standards, criteria or procedures used for the
utilization review for procedures, treatment and services delivered to
the enrollee during the same course of treatment.
(B) WHENEVER A UTILIZATION REVIEW AGENT MAKES A VERBAL REPRESENTATION
REGARDING PREAUTHORIZATION OR APPROVAL, THE UTILIZATION REVIEW AGENT
SHALL IMMEDIATELY, BUT NO LATER THAN, WITHIN ONE BUSINESS DAY SUPPLY THE
PROVIDER WITH A WRITTEN CONFIRMATION OF THE APPROVAL BY EITHER:
(I) SENDING A COPY OF SUCH APPROVAL THROUGH ELECTRONIC MAIL TO AN
ADDRESS SPECIFIED BY THE PROVIDER;
(II) SENDING A COPY OF SUCH APPROVAL THROUGH FACSIMILE TRANSMISSION TO
A NUMBER SPECIFIED BY THE PROVIDER; OR
(III) POSTING A COPY OF SUCH APPROVAL ON A SPECIFIC WEBPAGE OF THE
INSURER'S WEBSITE TO WHICH THE PROVIDER HAS BEEN DIRECTED AND TO WHICH
THE PROVIDER HAS BEEN GIVEN ACCESS SO THAT THE PROVIDER MAY IMMEDIATELY
PRINT AND RETAIN A HARD COPY.
S 8. Subsection (e) of section 4905 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:
(e) (1) If a health care service has been specifically preauthorized
or approved for an insured by a utilization review agent, a utilization
review agent shall not pursuant to retrospective review revise or modify
the specific standards, criteria or procedures used for the utilization
review for procedures, treatment and services delivered to the insured,
during the same course of treatment.
(2) WHENEVER A UTILIZATION REVIEW AGENT MAKES A VERBAL REPRESENTATION
REGARDING PREAUTHORIZATION OR APPROVAL, THE UTILIZATION REVIEW AGENT
SHALL IMMEDIATELY, BUT NO LATER THAN, WITHIN ONE BUSINESS DAY SUPPLY THE
PROVIDER WITH A WRITTEN CONFIRMATION OF THE APPROVAL BY EITHER:
(A) SENDING A COPY OF SUCH APPROVAL THROUGH ELECTRONIC MAIL TO AN
ADDRESS SPECIFIED BY THE PROVIDER;
(B) SENDING A COPY OF SUCH APPROVAL THROUGH FACSIMILE TRANSMISSION TO
A NUMBER SPECIFIED BY THE PROVIDER; OR
(C) POSTING A COPY OF SUCH APPROVAL ON A SPECIFIC WEBPAGE OF THE
INSURER'S WEBSITE TO WHICH THE PROVIDER HAS BEEN DIRECTED AND TO WHICH
THE PROVIDER HAS BEEN GIVEN ACCESS SO THAT THE PROVIDER MAY IMMEDIATELY
PRINT AND RETAIN A HARD COPY.
S 9. Paragraph (h) of subdivision 1 of section 4902 of the public
health law, as added by chapter 705 of the laws of 1996, is amended to
read as follows:
(h) Establishment of a requirement that emergency services rendered to
an enrollee shall not be subject to prior authorization nor shall
reimbursement for such services be denied on retrospective review;
provided, however, that such services are medically necessary to stabi-
lize or treat an emergency condition. IN REVIEWING WHETHER EMERGENCY
SERVICES ARE MEDICALLY NECESSARY TO STABILIZE OR TREAT AN EMERGENCY
A. 9946 5
CONDITION, THE UTILIZATION REVIEW AGENT SHALL TAKE THE FOLLOWING FACTORS
INTO CONSIDERATION:
(I) THE TIME OF DAY AND DAY OF THE WEEK THE CARE WAS PROVIDED;
(II) THE PRESENTING SYMPTOMS, INCLUDING BUT NOT LIMITED TO, SEVERE
PAIN, TO ENSURE THAT THE DECISION TO DENY REIMBURSEMENT FOR EMERGENCY
SERVICE IS NOT MADE SOLELY ON THE BASIS OF THE FINAL DIAGNOSIS.
S 10. Paragraph 8 of subsection (a) of section 4902 of the insurance
law, as added by chapter 705 of the laws of 1996, is amended to read as
follows:
(8) Establishment of a requirement that emergency services rendered to
an insured shall not be subject to prior authorization nor shall
reimbursement for such services be denied on retrospective review;
provided, however, that such services are medically necessary to stabi-
lize or treat an emergency condition. IN REVIEWING WHETHER EMERGENCY
SERVICES ARE MEDICALLY NECESSARY TO STABILIZE OR TREAT AN EMERGENCY
CONDITION, THE UTILIZATION REVIEW AGENT SHALL TAKE THE FOLLOWING FACTORS
INTO CONSIDERATION:
(A) THE TIME OF DAY AND DAY OF THE WEEK THE CARE WAS PROVIDED;
(B) THE PRESENTING SYMPTOMS, INCLUDING BUT NOT LIMITED TO, SEVERE
PAIN, TO ENSURE THAT THE DECISION TO DENY REIMBURSEMENT FOR EMERGENCY
SERVICE IS NOT MADE SOLELY ON THE BASIS OF THE FINAL DIAGNOSIS.
S 11. This act shall take effect July 1, 2013; provided, however, that
section three of this act shall apply to all policies and contracts
issued, renewed, modified, altered or amended on and after such effec-
tive date.