S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6435
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              April 28, 2021
                                ___________
 
 Introduced  by  Sen. BRESLIN -- 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 utilization review program standards and prescription  drug  formu-
   lary changes during a contract year, and in relation to pre-authoriza-
   tion of health care services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Paragraph (c) 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:
   (c) Utilization of written clinical review criteria developed pursuant
 to a utilization  review  plan.  SUCH  CLINICAL  REVIEW  CRITERIA  SHALL
 UTILIZE  RECOGNIZED  EVIDENCE-BASED  AND  PEER  REVIEWED CLINICAL REVIEW
 CRITERIA THAT TAKES INTO ACCOUNT THE NEEDS OF A  TYPICAL  PATIENT  POPU-
 LATIONS AND DIAGNOSES;
   §  2.  Paragraph  (a)  of  subdivision 2 of section 4903 of the public
 health law, as separately amended by section 13 of part YY and section 3
 of part KKK of chapter 56 of the laws of 2020, is  amended  to  read  as
 follows:
   (a)  A utilization review agent shall make a utilization review deter-
 mination involving health care services which require  pre-authorization
 and  provide  notice  of  a  determination to the enrollee or enrollee's
 designee and the enrollee's health care provider  by  telephone  and  in
 writing within [three business days] FORTY-EIGHT HOURS of receipt of the
 necessary information, WITHIN TWENTY-FOUR HOURS OF THE RECEIPT OF NECES-
 SARY INFORMATION IF THE REQUEST IS FOR AN ENROLLEE WITH A MEDICAL CONDI-
 TION  THAT  PLACES THE HEALTH OF THE INSURED IN SERIOUS JEOPARDY WITHOUT
 THE HEALTH CARE SERVICES  RECOMMENDED  BY  THE  ENROLLEE'S  HEALTH  CARE
 PROFESSIONAL,  or  for  inpatient  rehabilitation  services following an
 inpatient hospital admission provided by a hospital or  skilled  nursing
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03897-01-1

 S. 6435                             2
 
 facility,  within  one business day of receipt of the necessary informa-
 tion. The notification shall identify[;]: (i) whether the  services  are
 considered  in-network  or out-of-network; (ii) and whether the enrollee
 will  be  held  harmless for the services and not be responsible for any
 payment, other than any applicable co-payment or co-insurance; (iii)  as
 applicable,  the  dollar  amount  the  health  care plan will pay if the
 service is out-of-network; and (iv) as applicable, information  explain-
 ing how an enrollee may determine the anticipated out-of-pocket cost for
 out-of-network  health  care services in a geographical area or zip code
 based upon the difference between what the health care plan  will  reim-
 burse  for out-of-network health care services and the usual and custom-
 ary cost for out-of-network health care  services.  AN  APPROVAL  FOR  A
 REQUEST  FOR  PRE-AUTHORIZATION  SHALL  BE VALID FOR THE DURATION OF THE
 PRESCRIPTION OR TREATMENT AS REQUESTED BY  THE  ENROLLEE'S  HEALTH  CARE
 PROVIDER.
   §  3. The public health law is amended by adding a new section 4909 to
 read as follows:
   § 4909. PRESCRIPTION DRUG FORMULARY CHANGES. 1.  A  HEALTH  CARE  PLAN
 REQUIRED  TO  PROVIDE  ESSENTIAL  HEALTH  BENEFITS  SHALL NOT, EXCEPT AS
 OTHERWISE  PROVIDED  IN  SUBDIVISION  TWO  OF  THIS  SECTION,  REMOVE  A
 PRESCRIPTION DRUG FROM A FORMULARY:
   (A)  IF THE FORMULARY INCLUDES TWO OR MORE TIERS OF BENEFITS PROVIDING
 FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR COINSURANCE APPLICABLE  TO  THE
 PRESCRIPTION  DRUGS  IN  EACH  TIER, MOVE A DRUG TO A TIER WITH A LARGER
 DEDUCTIBLE, COPAYMENT OR COINSURANCE, OR
   (B) ADD UTILIZATION  MANAGEMENT  RESTRICTIONS  TO  A  FORMULARY  DRUG,
 UNLESS  SUCH  CHANGES  OCCUR  AT  THE  TIME OF ENROLLMENT OR ISSUANCE OF
 COVERAGE.  SUCH PROHIBITION SHALL APPLY BEGINNING ON THE DATE  ON  WHICH
 OPEN  ENROLLMENT  BEGINS FOR A PLAN YEAR AND THROUGH THE END OF THE PLAN
 YEAR TO WHICH SUCH OPEN ENROLLMENT PERIOD APPLIES.
   2. (A) A HEALTH CARE PLAN WITH A FORMULARY THAT INCLUDES TWO  OR  MORE
 TIERS  OF  BENEFITS  PROVIDING  FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR
 COINSURANCE APPLICABLE TO PRESCRIPTION DRUGS IN EACH  TIER  MAY  MOVE  A
 PRESCRIPTION  DRUG TO A TIER WITH A LARGER DEDUCIBLE, COPAYMENT OR COIN-
 SURANCE IF AN AB-RATED GENERIC DRUG FOR SUCH PRESCRIPTION DRUG IS  ADDED
 TO THE FORMULARY AT THE SAME TIME.
   (B) A HEALTH CARE PLAN MAY REMOVE A PRESCRIPTION DRUG FROM A FORMULARY
 IF  THE  FEDERAL  FOOD AND DRUG ADMINISTRATION DETERMINES THAT SUCH DRUG
 SHOULD BE REMOVED FROM THE MARKET.
   § 4. Paragraph 3 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:
   (3) Utilization of written clinical review criteria developed pursuant
 to a utilization  review  plan.  SUCH  CLINICAL  REVIEW  CRITERIA  SHALL
 UTILIZE  RECOGNIZED  EVIDENCE-BASED  AND  PEER  REVIEWED CLINICAL REVIEW
 CRITERIA THAT TAKES INTO ACCOUNT THE NEEDS OF A  TYPICAL  PATIENT  POPU-
 LATIONS AND DIAGNOSES;
   §  5.  Paragraph  1 of subsection (b) of section 4903 of the insurance
 law, as separately amended by section 16 of part YY  and  section  7  of
 part  KKK  of  chapter  56  of  the  laws of 2020, is amended to read as
 follows:
   (1) A utilization review agent shall make a utilization review  deter-
 mination  involving health care services which require pre-authorization
 and provide notice of a determination to the insured or insured's desig-
 nee and the insured's health care provider by telephone and  in  writing
 within  [three business days] FORTY-EIGHT HOURS of receipt of the neces-

 S. 6435                             3
 
 sary information, WITHIN  TWENTY-FOUR  HOURS  OF  RECEIPT  OF  NECESSARY
 INFORMATION  IF  THE  REQUEST IS FOR AN INSURED WITH A MEDICAL CONDITION
 THAT PLACES THE HEALTH OF THE INSURED IN SERIOUS  JEOPARDY  WITHOUT  THE
 HEALTH  CARE SERVICES RECOMMENDED BY THE INSURED'S HEALTH CARE PROVIDER,
 or for inpatient rehabilitation services following an inpatient hospital
 admission provided by a hospital or skilled nursing facility, within one
 business day of receipt of the necessary information.  The  notification
 shall  identify:  (i)  whether the services are considered in-network or
 out-of-network; (ii) whether the insured will be held harmless  for  the
 services and not be responsible for any payment, other than any applica-
 ble  co-payment,  co-insurance  or  deductible; (iii) as applicable, the
 dollar amount the health care plan will pay if the  service  is  out-of-
 network;  and  (iv) as applicable, information explaining how an insured
 may determine the  anticipated  out-of-pocket  cost  for  out-of-network
 health  care  services in a geographical area or zip code based upon the
 difference between what the health care plan will reimburse for  out-of-
 network  health  care services and the usual and customary cost for out-
 of-network health care services. AN APPROVAL OF REQUEST FOR PRE-AUTHORI-
 ZATION SHALL BE VALID FOR THE DURATION OF THE PRESCRIPTION OR  TREATMENT
 REQUESTED FOR PRE-AUTHORIZATION.
   § 6. The insurance law is amended by adding a new section 4909 to read
 as follows:
   §  4909.  PRESCRIPTION  DRUG FORMULARY CHANGES. (A) A HEALTH CARE PLAN
 REQUIRED TO PROVIDE ESSENTIAL  HEALTH  BENEFITS  SHALL  NOT,  EXCEPT  AS
 OTHERWISE   PROVIDED  IN  SUBSECTION  (B)  OF  THIS  SECTION,  REMOVE  A
 PRESCRIPTION DRUG FROM A FORMULARY:
   (I) IF THE FORMULARY INCLUDES TWO OR MORE TIERS OF BENEFITS  PROVIDING
 FOR  DIFFERENT  DEDUCTIBLES, COPAYMENTS OR COINSURANCE APPLICABLE TO THE
 PRESCRIPTION DRUGS IN EACH TIER, MOVE A DRUG TO A  TIER  WITH  A  LARGER
 DEDUCTIBLE, COPAYMENT OR COINSURANCE, OR
   (II)  ADD  UTILIZATION  MANAGEMENT  RESTRICTIONS  TO A FORMULARY DRUG,
 UNLESS SUCH CHANGES OCCUR AT THE  TIME  OF  ENROLLMENT  OR  ISSUANCE  OF
 COVERAGE.    SUCH PROHIBITION SHALL APPLY BEGINNING ON THE DATE ON WHICH
 OPEN ENROLLMENT BEGINS FOR A PLAN YEAR AND THROUGH THE END OF  THE  PLAN
 YEAR TO WHICH SUCH OPEN ENROLLMENT PERIOD APPLIES.
   (B)  (I) A HEALTH CARE PLAN WITH A FORMULARY THAT INCLUDES TWO OR MORE
 TIERS OF BENEFITS PROVIDING FOR  DIFFERENT  DEDUCTIBLES,  COPAYMENTS  OR
 COINSURANCE  APPLICABLE  TO  PRESCRIPTION  DRUGS IN EACH TIER MAY MOVE A
 PRESCRIPTION DRUG TO A TIER WITH A LARGER DEDUCIBLE, COPAYMENT OR  COIN-
 SURANCE  IF AN AB-RATED GENERIC DRUG FOR SUCH PRESCRIPTION DRUG IS ADDED
 TO THE FORMULARY AT THE SAME TIME.
   (II) A HEALTH CARE PLAN MAY REMOVE A PRESCRIPTION DRUG FROM  A  FORMU-
 LARY  IF  THE  FEDERAL FOOD AND DRUG ADMINISTRATION DETERMINES THAT SUCH
 DRUG SHOULD BE REMOVED FROM THE MARKET.
   § 7. Subsection (a) of section 3238 of the insurance law, as added  by
 chapter 451 of the laws of 2007, is amended to read as follows:
   (a)  An insurer, corporation organized pursuant to article forty-three
 of this chapter, municipal cooperative health  benefits  plan  certified
 pursuant  to  article forty-seven of this chapter, or health maintenance
 organization and  other  organizations  certified  pursuant  to  article
 forty-four of the public health law ("health plan") shall pay claims for
 a health care service for which a pre-authorization was required by, and
 received  from,  the  health  plan prior to the rendering of such health
 care service, AND ELIGIBILITY CONFIRMED  ON  THE  DAY  OF  THE  SERVICE,
 unless:

 S. 6435                             4
 
   (1) [(i) the insured, subscriber, or enrollee was not a covered person
 at the time the health care service was rendered.
   (ii)  Notwithstanding the provisions of subparagraph (i) of this para-
 graph, a health plan shall not  deny  a  claim  on  this  basis  if  the
 insured's,  subscriber's or enrollee's coverage was retroactively termi-
 nated more than one hundred twenty days after the  date  of  the  health
 care  service,  provided  that the claim is submitted within ninety days
 after the date of the health care service. If  the  claim  is  submitted
 more  than  ninety  days  after the date of the health care service, the
 health plan shall have thirty days after the claim is received  to  deny
 the  claim on the basis that the insured, subscriber or enrollee was not
 a covered person on the date of the health care service.
   (2)] the submission of the claim with respect to an insured, subscrib-
 er or enrollee was not timely under the terms of the applicable provider
 contract, if the claim is submitted by a  provider,  or  the  policy  or
 contract, if the claim is submitted by the insured, subscriber or enrol-
 lee;
   [(3)]  (2)  at the time the pre-authorization was issued, the insured,
 subscriber or enrollee had not  exhausted  contract  or  policy  benefit
 limitations  based  on  information available to the health plan at such
 time, but subsequently exhausted contract or policy benefit  limitations
 after  authorization was issued; provided, however, that the health plan
 shall include in  the  notice  of  determination  required  pursuant  to
 subsection (b) of section four thousand nine hundred three of this chap-
 ter  and  subdivision  two  of  section  forty-nine hundred three of the
 public health law that the visits authorized might exceed the limits  of
 the  contract  or  policy and accordingly would not be covered under the
 contract or policy;
   [(4)] (3) the pre-authorization was based on materially inaccurate  or
 incomplete  information provided by the insured, subscriber or enrollee,
 the designee of the insured, subscriber or enrollee, or the health  care
 provider  such  that  if  the  correct  or complete information had been
 provided, such pre-authorization would not have been granted; OR
   [(5) the pre-authorized service was related to a  pre-existing  condi-
 tion that was excluded from coverage; or
   (6)] (4) there is a reasonable basis supported by specific information
 available  for review by the superintendent that the insured, subscriber
 or enrollee, the designee of the insured, subscriber or enrollee, or the
 health care provider has engaged in fraud or abuse.
   § 8. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6435--B
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              April 28, 2021
                                ___________
 
 Introduced by Sens. BRESLIN, CLEARE, GALLIVAN, KENNEDY -- read twice and
   ordered  printed, and when printed to be committed to the Committee on
   Health -- committee discharged, bill  amended,  ordered  reprinted  as
   amended  and  recommitted  to  said  committee  --  recommitted to the
   Committee on Health in accordance  with  Senate  Rule  6,  sec.  8  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the public health law and the insurance law, in relation
   to utilization review program standards, and in  relation  to  pre-au-
   thorization of health care services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Paragraph (c) 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:
   (c) Utilization of written clinical review criteria developed pursuant
 to a utilization  review  plan.  SUCH  CLINICAL  REVIEW  CRITERIA  SHALL
 UTILIZE  RECOGNIZED  EVIDENCE-BASED  AND  PEER  REVIEWED CLINICAL REVIEW
 CRITERIA THAT TAKE INTO ACCOUNT THE NEEDS OF  A  TYPICAL  PATIENT  POPU-
 LATIONS AND DIAGNOSES;
   §  2.  Paragraph  (a)  of  subdivision 2 of section 4903 of the public
 health law, as separately amended by section 13 of part YY and section 3
 of part KKK of chapter 56 of the laws of 2020, is  amended  to  read  as
 follows:
   (a)  A utilization review agent shall make a utilization review deter-
 mination involving health care services which require  pre-authorization
 and  provide  notice  of  a  determination to the enrollee or enrollee's
 designee and the enrollee's health care provider  by  telephone  and  in
 writing within [three business days] SEVENTY-TWO HOURS of receipt of the
 necessary information, WITHIN TWENTY-FOUR HOURS OF THE RECEIPT OF NECES-
 SARY INFORMATION IF THE REQUEST IS FOR AN ENROLLEE WITH A MEDICAL CONDI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03897-06-2
              

 S. 6435--B                          2
 
 TION  THAT  PLACES THE HEALTH OF THE INSURED IN SERIOUS JEOPARDY WITHOUT
 THE HEALTH CARE SERVICES  RECOMMENDED  BY  THE  ENROLLEE'S  HEALTH  CARE
 PROFESSIONAL,  or  for  inpatient  rehabilitation  services following an
 inpatient  hospital  admission provided by a hospital or skilled nursing
 facility, within one business day of receipt of the  necessary  informa-
 tion.  The  notification shall identify[;]: (i) whether the services are
 considered in-network or out-of-network; (ii) and whether  the  enrollee
 will  be  held  harmless for the services and not be responsible for any
 payment, other than any applicable co-payment or co-insurance; (iii)  as
 applicable,  the  dollar  amount  the  health  care plan will pay if the
 service is out-of-network; and (iv) as applicable, information  explain-
 ing how an enrollee may determine the anticipated out-of-pocket cost for
 out-of-network  health  care services in a geographical area or zip code
 based upon the difference between what the health care plan  will  reim-
 burse  for out-of-network health care services and the usual and custom-
 ary cost for out-of-network health care  services.  AN  APPROVAL  FOR  A
 REQUEST FOR PRE-AUTHORIZATION SHALL BE VALID FOR (1) THE DURATION OF THE
 PRESCRIPTION,  INCLUDING  ANY AUTHORIZED REFILLS AND (2) THE DURATION OF
 TREATMENT FOR A SPECIFIC CONDITION AS REQUESTED BY THE ENROLLEE'S HEALTH
 CARE PROVIDER.
   § 3. Paragraph 3 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:
   (3) Utilization of written clinical review criteria developed pursuant
 to a utilization  review  plan.  SUCH  CLINICAL  REVIEW  CRITERIA  SHALL
 UTILIZE  RECOGNIZED  EVIDENCE-BASED  AND  PEER  REVIEWED CLINICAL REVIEW
 CRITERIA THAT TAKE INTO ACCOUNT THE NEEDS OF  A  TYPICAL  PATIENT  POPU-
 LATIONS AND DIAGNOSES;
   §  4.  Paragraph  1 of subsection (b) of section 4903 of the insurance
 law, as separately amended by section 16 of part YY  and  section  7  of
 part  KKK  of  chapter  56  of  the  laws of 2020, is amended to read as
 follows:
   (1) A utilization review agent shall make a utilization review  deter-
 mination  involving health care services which require pre-authorization
 and provide notice of a determination to the insured or insured's desig-
 nee and the insured's health care provider by telephone and  in  writing
 within  [three business days] SEVENTY-TWO HOURS of receipt of the neces-
 sary information, WITHIN  TWENTY-FOUR  HOURS  OF  RECEIPT  OF  NECESSARY
 INFORMATION  IF  THE  REQUEST IS FOR AN INSURED WITH A MEDICAL CONDITION
 THAT PLACES THE HEALTH OF THE INSURED IN SERIOUS  JEOPARDY  WITHOUT  THE
 HEALTH  CARE SERVICES RECOMMENDED BY THE INSURED'S HEALTH CARE PROVIDER,
 or for inpatient rehabilitation services following an inpatient hospital
 admission provided by a hospital or skilled nursing facility, within one
 business day of receipt of the necessary information.  The  notification
 shall  identify:  (i)  whether the services are considered in-network or
 out-of-network; (ii) whether the insured will be held harmless  for  the
 services and not be responsible for any payment, other than any applica-
 ble  co-payment,  co-insurance  or  deductible; (iii) as applicable, the
 dollar amount the health care plan will pay if the  service  is  out-of-
 network;  and  (iv) as applicable, information explaining how an insured
 may determine the  anticipated  out-of-pocket  cost  for  out-of-network
 health  care  services in a geographical area or zip code based upon the
 difference between what the health care plan will reimburse for  out-of-
 network  health  care services and the usual and customary cost for out-
 of-network health care services. AN APPROVAL OF REQUEST FOR PRE-AUTHORI-
 ZATION SHALL  BE  VALID  FOR  (1)  THE  DURATION  OF  THE  PRESCRIPTION,
 S. 6435--B                          3
 
 INCLUDING ANY AUTHORIZED REFILLS AND (2) THE DURATION OF TREATMENT FOR A
 SPECIFIC CONDITION REQUESTED FOR PRE-AUTHORIZATION.
   §  5. Subsection (a) of section 3238 of the insurance law, as added by
 chapter 451 of the laws of 2007, is amended to read as follows:
   (a) An insurer, corporation organized pursuant to article  forty-three
 of  this  chapter,  municipal cooperative health benefits plan certified
 pursuant to article forty-seven of this chapter, or  health  maintenance
 organization  and  other  organizations  certified  pursuant  to article
 forty-four of the public health law ("health plan") shall pay claims for
 a health care service for which a pre-authorization was required by, and
 received from, the health plan prior to the  rendering  of  such  health
 care  service,  AND  ELIGIBILITY  CONFIRMED  ON  THE DAY OF THE SERVICE,
 unless:
   (1) [(i) the insured, subscriber, or enrollee was not a covered person
 at the time the health care service was rendered.
   (ii) Notwithstanding the provisions of subparagraph (i) of this  para-
 graph,  a  health  plan  shall  not  deny  a  claim on this basis if the
 insured's, subscriber's or enrollee's coverage was retroactively  termi-
 nated  more  than  one  hundred twenty days after the date of the health
 care service, provided that the claim is submitted  within  ninety  days
 after  the  date  of  the health care service. If the claim is submitted
 more than ninety days after the date of the  health  care  service,  the
 health  plan  shall have thirty days after the claim is received to deny
 the claim on the basis that the insured, subscriber or enrollee was  not
 a covered person on the date of the health care service.
   (2)] the submission of the claim with respect to an insured, subscrib-
 er or enrollee was not timely under the terms of the applicable provider
 contract,  if  the  claim  is  submitted by a provider, or the policy or
 contract, if the claim is submitted by the insured, subscriber or enrol-
 lee;
   [(3)] (2) at the time the pre-authorization was issued,  the  insured,
 subscriber  or  enrollee  had  not  exhausted contract or policy benefit
 limitations based on information available to the health  plan  at  such
 time,  but subsequently exhausted contract or policy benefit limitations
 after authorization was issued; provided, however, that the health  plan
 shall  include  in  the  notice  of  determination  required pursuant to
 subsection (b) of section four thousand nine hundred three of this chap-
 ter and subdivision two of  section  forty-nine  hundred  three  of  the
 public  health law that the visits authorized might exceed the limits of
 the contract or policy and accordingly would not be  covered  under  the
 contract or policy;
   [(4)]  (3) the pre-authorization was based on materially inaccurate or
 incomplete information provided by the insured, subscriber or  enrollee,
 the  designee of the insured, subscriber or enrollee, or the health care
 provider such that if the  correct  or  complete  information  had  been
 provided, such pre-authorization would not have been granted; OR
   [(5)  the  pre-authorized service was related to a pre-existing condi-
 tion that was excluded from coverage; or
   (6)] (4) there is a reasonable basis supported by specific information
 available for review by the superintendent that the insured,  subscriber
 or enrollee, the designee of the insured, subscriber or enrollee, or the
 health care provider has engaged in fraud or abuse.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law.