S T A T E O F N E W Y O R K
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4653
2017-2018 Regular Sessions
I N A S S E M B L Y
February 3, 2017
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Introduced by M. of A. TITUS -- read once and referred to the Committee
on Insurance
AN ACT to amend the public health law and the insurance law, in relation
to utilization review agents
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 206 of the public health law is amended by adding
two new subdivisions 31 and 32 to read as follows:
31. THE COMMISSIONER IS HEREBY DIRECTED TO ESTABLISH AND PERIODICALLY
UPDATE FROM AVAILABLE APPLICANTS AN INDEPENDENT POOL OF PHYSICIANS AND
PROFESSIONAL HEALTH SERVICE PROVIDERS IN EACH MEDICAL AND PROFESSIONAL
HEALTH SERVICE SPECIALTY TO SERVE AS INDEPENDENT UTILIZATION REVIEW
AGENTS AS DEFINED BY SUBDIVISION NINE OF SECTION FORTY-NINE HUNDRED OF
THIS CHAPTER.
32. (A) THE COMMISSIONER SHALL ASSIGN PHYSICIANS OR OTHER PROFESSIONAL
HEALTH SERVICE PROVIDERS AUTHORIZED TO EXAMINE OR EVALUATE INJURY OR
ILLNESS FROM THE POOL IN THE APPROPRIATE MEDICAL OR PROFESSIONAL HEALTH
SERVICE SPECIALTY AND WHO PRACTICES IN THE SAME AREA OR REGION TO
CONDUCT PHYSICAL EXAMINATIONS AND REVIEW MEDICAL RECORDS OF COVERED
PERSONS EXCLUSIVELY ON A RANDOM, ROTATING BASIS TO ELIMINATE BIAS OR
PREFERENCE IN THE SELECTION OF THE INDEPENDENT UTILIZATION REVIEW
AGENTS, OR ALTERNATIVELY, THE COMMISSIONER MAY SELECT A NOT-FOR-PROFIT
ORGANIZATION TO ASSIGN PROVIDERS FROM THE POOL ON THE SAME BASIS. SUCH
ASSIGNMENT MAY BE DONE THROUGH A PROCESS WHEREBY A LIST OF RANDOMLY
SELECTED, APPROPRIATE MEDICAL OR PROFESSIONAL HEALTH SERVICE PROVIDERS
IS COMPILED BY GEOGRAPHIC REGION THROUGHOUT THE STATE AND PROVIDED TO
THE INSURANCE CARRIER AND THE CLAIMANT FOR THE PURPOSES OF PROVIDING
BOTH PARTIES EQUAL OPPORTUNITY TO STRIKE AN EQUAL NUMBER OF NAMES OFF
SUCH LIST UNTIL ONE UTILIZATION REVIEW AGENT REMAINS TO CONDUCT THE
MEDICAL EXAMINATION OR REVIEW OF MEDICAL RECORDS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03227-02-7
A. 4653 2
(B) WHEN A UTILIZATION REVIEW AGENT IS SELECTED FROM THE POOL OF QUAL-
IFIED UTILIZATION REVIEW AGENTS MAINTAINED BY THE DEPARTMENT, THE
COMMISSIONER SHALL REMOVE SUCH UTILIZATION REVIEW AGENT'S NAME FROM THE
POOL FOR A SET PERIOD OF TIME SO THAT SUCH AGENT SHALL NOT BE AVAILABLE
FOR ANOTHER REGIONAL UTILIZATION REVIEW AGENT ASSIGNMENT WITHIN A
SPECIFIC DURATION OF TIME AS SHALL BE DETERMINED BY THE COMMISSIONER.
THE COMMISSIONER SHALL ADJUST THE DURATION OF TIME DURING WHICH A NAME
MUST BE WITHHELD FROM THE POOL AS NECESSARY TO BALANCE THE NEED TO
REDUCE OVERUTILIZATION OF CERTAIN INDEPENDENT UTILIZATION REVIEW AGENTS
WITH THE NEED TO ENSURE THAT AN ADEQUATE POOL OF INDEPENDENT UTILIZATION
REVIEW AGENTS IS AVAILABLE IN EACH REGION OR GEOGRAPHIC AREA.
§ 2. Subdivision 2 of section 4902 of the public health law, as added
by chapter 705 of the laws of 1996, is amended to read as follows:
2. Each utilization review agent shall assure adherence to the
requirements stated in subdivision one of this section by all contrac-
tors, subcontractors, subvendors, agents and employees affiliated by
contract or otherwise with such utilization review agent, AND SHALL
CONDUCT ALL REVIEWS IN AN OBJECTIVE AND IMPARTIAL MANNER.
§ 3. Subsection (b) of section 4902 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:
(b) Each utilization review agent shall assure adherence to the
requirements stated in subsection (a) of this section by all contrac-
tors, subcontractors, subvendors, agents and employees affiliated by
contract or otherwise with such utilization review agent, AND SHALL
CONDUCT ALL REVIEWS IN AN OBJECTIVE AND IMPARTIAL MANNER.
§ 4. Section 4902 of the insurance law is amended by adding two new
subsections (c) and (d) to read as follows:
(C) UTILIZATION REVIEW AGENTS MAY HAVE THEIR RECORDS RANDOMLY REVIEWED
AND AUDITED PERIODICALLY BY BOTH THE SUPERINTENDENT OF FINANCIAL
SERVICES AND THE COMMISSIONER OF HEALTH. SUCH SUPERINTENDENT AND
COMMISSIONER SHALL BE AUTHORIZED TO CONDUCT A RANDOM REVIEW OF NO MORE
THAN FIVE UTILIZATION REVIEW RECORDS ANNUALLY DURING A UTILIZATION
REVIEW AGENT'S TRIENNIAL REGISTRATION PERIOD. IF, IN THE OPINION OF SUCH
SUPERINTENDENT AND COMMISSIONER, THREE OR MORE OF THE UTILIZATION REVIEW
AGENT'S RECORDS AND DOCUMENTATION OUT OF THE FIVE RECORDS THAT MAY BE
AUDITED ANNUALLY ARE JUDGED TO BE DEFICIENT, SUCH SUPERINTENDENT AND
COMMISSIONER SHALL BE AUTHORIZED TO AUDIT ADDITIONAL RECORDS DURING SUCH
REGISTRATION PERIOD AND SHALL BE AUTHORIZED TO INSTITUTE A REMEDIAL
PROGRAM PRIOR TO THE EXPIRATION OF THE REGISTRANT'S CURRENT UTILIZATION
REVIEW AGENT REGISTRATION PERIOD. IF DURING ANY TWO CONSECUTIVE ANNUAL
AUDIT PERIODS A UTILIZATION REVIEW AGENT'S RECORDS AND DOCUMENTATION ARE
JUDGED TO BE DEFICIENT IN SPITE OF ANY PROGRAM OF REMEDIAL ACTION
DIRECTED ON THE PART OF SUCH SUPERINTENDENT AND COMMISSIONER, THEY MAY
REMOVE THE UTILIZATION REVIEW AGENT FROM THE POOL OF NAMES AVAILABLE TO
CONDUCT UTILIZATION REVIEWS. ONCE A REGISTRANT'S NAME HAS BEEN REMOVED
FROM THE POOL, IN ORDER TO RE-REGISTER AS A UTILIZATION REVIEW AGENT THE
REGISTRANT SHALL SEEK AUTHORIZATION IN ACCORDANCE WITH THIS ARTICLE AND
IN THE SAME MANNER AS A PRACTITIONER WHO HAS NOT PREVIOUSLY BEEN AUTHOR-
IZED.
(D) THE UTILIZATION REVIEW AGENT SHALL CITE, WHENEVER AND WHEREVER
POSSIBLE, THE SPECIFIC PAGE AND REFERENCE TO THE RELEVANT PRACTICE
GUIDELINE OR TO THE RELEVANT PEER-REVIEWED MEDICAL LITERATURE, SCIENTIF-
IC STUDIES, ABSTRACTS, AND/OR STANDARD REFERENCE COMPENDIA, THAT THE
AGENT UTILIZED TO ASSIST HIM OR HER IN REACHING A DETERMINATION WHEN
COMMENTING ON OR MAKING ANY DETERMINATION ADVERSE TO THE CLAIMANT'S
ONGOING OR CONCURRENT CARE OR A RETROSPECTIVE REVIEW BASED ON A REVIEW
A. 4653 3
OF THE TREATING PROVIDER'S RECORDS OR AN EXAMINATION OF THE INJURED
PATIENT OR CLAIMANT.
§ 5. Section 4905 of the insurance law is amended by adding three new
subsections (p), (q), and (r) to read as follows:
(P) A PRACTITIONER IS NOT ELIGIBLE TO PERFORM A UTILIZATION REVIEW OF
A CLAIMANT WHEN THE APPEARANCE OF OR AN ACTUAL CONFLICT OF INTEREST
EXISTS. A CONFLICT OF INTEREST SHALL INCLUDE, BUT NOT BE LIMITED TO,
INSTANCES WHERE THE UTILIZATION REVIEW AGENT OR SOMEONE IN THEIR OFFICE
OR PLACE OF EMPLOYMENT OR PRACTICE PRACTITIONER HAS TREATED OR EXAMINED
THE CLAIMANT. A CONFLICT OF INTEREST MAY BE PRESUMED TO EXIST WHEN THE
UTILIZATION REVIEW AGENT AND A PROVIDER THAT PREVIOUSLY TREATED THE
CLAIMANT HAS A RELATIONSHIP WHICH INVOLVES A DIRECT OR SUBSTANTIAL
FINANCIAL INTEREST.
(Q) A UTILIZATION REVIEW AGENT SHALL NOT BECOME THE TREATING PROVIDER
FOR THE CLAIMANT UNLESS AUTHORIZED TO DO SO BY THE COMMISSIONER OF
HEALTH, OR ORDERED TO BY AN ADMINISTRATIVE LAW JUDGE.
(R) A PARTY MAY, WITHIN FIVE BUSINESS DAYS OF THE APPOINTMENT AS A
UTILIZATION REVIEW AGENT FOR A PARTICULAR CLAIMANT, REQUEST THAT THE
UTILIZATION REVIEW AGENT DISCLOSE ALL POTENTIAL CONFLICTS OF INTEREST TO
SUCH COMMISSIONER OF HEALTH THAT MAY RESULT FROM ANY RELATIONSHIP
BETWEEN THE UTILIZATION REVIEW AGENT AND THE INSURANCE CARRIER, SELF-IN-
SURED EMPLOYER, OR THE CLAIMANT. A POTENTIAL CONFLICT OF INTEREST EXISTS
WHEN THE UTILIZATION REVIEW AGENT, OR SOMEONE IN THEIR IMMEDIATE FAMILY,
RECEIVES SOMETHING OF MATERIAL VALUE FROM THE INSURANCE CARRIER WHETHER
IN THE FORM OF STOCK, ROYALTIES, CONSULTANTSHIP, FUNDING BY A RESEARCH
GRANT, OR OTHER PAYMENT BY THE INSURANCE CARRIER FOR ANY ADDITIONAL
SERVICE OTHER THAN THE UTILIZATION REVIEW, OR IF THE UTILIZATION REVIEW
AGENT RECEIVES MORE THAN FIFTY PERCENT OF HIS OR HER TOTAL EARNED INCOME
BY PROVIDING UTILIZATION REVIEWS. SUCH REQUEST SHALL BE SUBMITTED, IN
WRITING, TO THE COMMISSIONER OF HEALTH AND A COPY SHALL BE SENT, DELIV-
ERED, OR SUBMITTED TO ANY OTHER PARTIES AT SUBSTANTIALLY THE SAME TIME.
SUCH COMMISSIONER SHALL DETERMINE WHETHER ANY CONFLICT OF INTEREST IS
SUFFICIENTLY MATERIAL AS TO REQUIRE DISQUALIFICATION OF THE UTILIZATION
REVIEW AGENT FROM PERFORMING ANY UTILIZATION REVIEW UNDER THIS ARTICLE,
AFTER PROMPT DISCLOSURE PURSUANT TO THIS SUBDIVISION.
§ 6. This act shall take effect immediately.