S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5827
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 19, 2019
                                ___________
 
 Introduced  by  M.  of  A. TITUS, STECK -- 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.
                                                            LBD05872-01-9
              

 A. 5827                             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

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 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.