S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8038
 
                             I N  S E N A T E
 
                              January 5, 2024
                                ___________
 
 Introduced  by  Sen. BRESLIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the insurance law and the public health law, in relation
   to adverse determinations related to a step therapy protocol  override
   determination;  and  to repeal certain provisions of the insurance law
   and the public health law relating thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph  14  of  subsection  (a) of section 4902 of the
 insurance law, as added by a chapter of the laws of  2023  amending  the
 insurance  law and the public health law relating to requiring notice of
 adverse step therapy determinations, as proposed  in  legislative  bills
 numbers S. 2677-A and A. 463-A, is REPEALED.
   §  2.  Paragraph  5 of subsection (a) of section 4902 of the insurance
 law, as added by chapter 705 of the laws of 1996, subparagraph  (ii)  as
 amended  by  chapter  586  of  the  laws  of 1998, is amended to read as
 follows:
   (5) (I) Establishment of a written procedure to assure that the notice
 of an adverse determination includes:
   [(i)] (A) the reasons for the  determination  including  the  clinical
 rationale, if any;
   [(ii)]  (B)  instructions  on  how  to initiate standard and expedited
 appeals pursuant to section four thousand  nine  hundred  four  of  this
 article  and  an  external appeal pursuant to section four thousand nine
 hundred fourteen of this article; [and
   (iii)] (C) notice of the availability, upon request of the insured  or
 the  insured's  designee, of the clinical review criteria relied upon to
 make such determination;
   (D) WHAT, IF ANY, ADDITIONAL NECESSARY INFORMATION  MUST  BE  PROVIDED
 TO,  OR  OBTAINED  BY, THE UTILIZATION REVIEW AGENT IN ORDER TO RENDER A
 DECISION ON  APPEAL; AND
   (E) FOR AN ADVERSE DETERMINATION RELATED TO A  STEP  THERAPY  PROTOCOL
 OVERRIDE  DETERMINATION,  INFORMATION  THAT INCLUDES THE CLINICAL REVIEW
 CRITERIA RELIED UPON TO  MAKE  SUCH  DETERMINATION  AND  ANY  APPLICABLE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02500-04-4
 S. 8038                             2
 
 ALTERNATIVE  PRESCRIPTION  DRUGS SUBJECT TO THE STEP THERAPY PROTOCOL OF
 THE UTILIZATION REVIEW AGENT.
   (II)  A  UTILIZATION  REVIEW  AGENT MAY PROVIDE A NOTICE OF AN ADVERSE
 DETERMINATION RELATED TO A STEP THERAPY PROTOCOL OVERRIDE  DETERMINATION
 ELECTRONICALLY  PURSUANT TO SUBSECTION (I) OF SECTION FOUR THOUSAND NINE
 HUNDRED THREE OF THIS TITLE, INCLUDING BY ELECTRONIC MAIL OR THROUGH THE
 HEALTH CARE PLAN'S MEMBER PORTAL  AND  PROVIDER  PORTAL.  AN  ELECTRONIC
 NOTICE  OF  SUCH  AN  ADVERSE DETERMINATION MAY MEET THE REQUIREMENTS OF
 CLAUSE (E) OF SUBPARAGRAPH (I) OF THIS PARAGRAPH BY LINKING TO  INFORMA-
 TION POSTED ON THE WEBSITE OF THE HEALTH CARE PLAN;
   §  3.  Subsection (e-1) of section 4903 of the insurance law, as added
 by a chapter of the laws of 2023 amending  the  insurance  law  and  the
 public  health  law relating to requiring notice of adverse step therapy
 determinations, as proposed in legislative bills numbers S.  2677-A  and
 A.  463-A, is REPEALED.
   §  4. Subsection (e) of section 4903 of the insurance law, as added by
 chapter 705 of the laws of 1996, paragraph 2 as amended by  chapter  586
 of the laws of 1998, is amended to read as follows:
   (e)  (1)  Notice  of  an  adverse  determination made by a utilization
 review agent shall be in writing and must include:
   [(1)] (I) the reasons for the  determination  including  the  clinical
 rationale, if any;
   [(2)]  (II) instructions on how to initiate standard appeals and expe-
 dited appeals pursuant to section four thousand nine hundred four and an
 external appeal pursuant to section four thousand nine hundred  fourteen
 of this article; [and
   (3)] (III) notice of the availability, upon request of the insured, or
 the  insured's  designee, of the clinical review criteria relied upon to
 make such determination. Such notice shall also specify  what,  if  any,
 additional  necessary  information  must be provided to, or obtained by,
 the utilization review agent in  order  to  render  a  decision  on  the
 appeal; AND
   (IV)  FOR  AN ADVERSE DETERMINATION RELATED TO A STEP THERAPY PROTOCOL
 OVERRIDE REQUEST, INFORMATION THAT INCLUDES THE CLINICAL REVIEW CRITERIA
 RELIED UPON TO MAKE SUCH DETERMINATION AND  ANY  APPLICABLE  ALTERNATIVE
 PRESCRIPTION  DRUGS SUBJECT TO THE STEP THERAPY PROTOCOL OF THE UTILIZA-
 TION REVIEW AGENT.
   (2) A UTILIZATION REVIEW AGENT MAY PROVIDE NOTICE OF AN ADVERSE DETER-
 MINATION RELATED TO A STEP THERAPY PROTOCOL OVERRIDE DETERMINATION ELEC-
 TRONICALLY PURSUANT TO SUBSECTION (I)  OF  THIS  SECTION,  INCLUDING  BY
 ELECTRONIC  MAIL  OR  THROUGH  THE  HEALTH CARE PLAN'S MEMBER PORTAL AND
 PROVIDER PORTAL. AN ELECTRONIC NOTICE OF SUCH AN  ADVERSE  DETERMINATION
 MAY  MEET THE REQUIREMENTS OF SUBPARAGRAPH (IV) OF PARAGRAPH ONE OF THIS
 SUBSECTION BY LINKING TO INFORMATION POSTED ON THE WEBSITE OF THE HEALTH
 CARE PLAN.
   § 5. Paragraph (l) of subdivision 1 of  section  4902  of  the  public
 health  law,  as  added  by  a  chapter of the laws of 2023 amending the
 insurance law and the public health law relating to requiring notice  of
 adverse  step  therapy  determinations, as proposed in legislative bills
 numbers S.  2677-A and A. 463-A, is REPEALED.
   § 6. Paragraph (e) of subdivision 1 of  section  4902  of  the  public
 health  law,  as  added by chapter 705 of the laws of 1996, subparagraph
 (ii) as amended by chapter 586 of the laws of 1998, is amended  to  read
 as follows:
   (e) (I) Establishment of a written procedure to assure that the notice
 of  an  adverse  determination  includes:  [(i)] (1) the reasons for the
 S. 8038                             3
 
 determination including the  clinical  rationale,  if  any;  [(ii)]  (2)
 instructions  on how to initiate standard and expedited appeals pursuant
 to section forty-nine hundred four and an external  appeal  pursuant  to
 section  forty-nine  hundred  fourteen  of this article; [and (iii)] (3)
 notice of  the  availability,  upon  request  of  the  enrollee  or  the
 enrollee's designee, of the clinical review criteria relied upon to make
 such  determination;  (4) WHAT, IF ANY, ADDITIONAL NECESSARY INFORMATION
 MUST BE PROVIDED TO, OR OBTAINED BY, THE  UTILIZATION  REVIEW  AGENT  IN
 ORDER TO RENDER A DECISION ON AN APPEAL; AND (5) FOR AN ADVERSE DETERMI-
 NATION RELATED TO A STEP THERAPY PROTOCOL OVERRIDE DETERMINATION, INFOR-
 MATION  THAT  INCLUDES  THE CLINICAL REVIEW CRITERIA RELIED UPON TO MAKE
 SUCH DETERMINATION AND ANY  APPLICABLE  ALTERNATIVE  PRESCRIPTION  DRUGS
 SUBJECT TO THE STEP THERAPY PROTOCOL OF THE UTILIZATION REVIEW AGENT.
   (II)  A  UTILIZATION  REVIEW  AGENT  MAY  PROVIDE NOTICE OF AN ADVERSE
 DETERMINATION RELATED TO A STEP THERAPY PROTOCOL OVERRIDE  DETERMINATION
 ELECTRONICALLY  PURSUANT  TO  SUBDIVISION  NINE  OF  SECTION  FORTY-NINE
 HUNDRED THREE OF THIS TITLE, INCLUDING BY ELECTRONIC MAIL OR THROUGH THE
 HEALTH CARE PLAN'S MEMBER PORTAL  AND  PROVIDER  PORTAL.  AN  ELECTRONIC
 NOTICE  OF  SUCH  AN  ADVERSE DETERMINATION MAY MEET THE REQUIREMENTS OF
 CLAUSE FIVE OF SUBPARAGRAPH (I) OF THIS PARAGRAPH BY LINKING TO INFORMA-
 TION POSTED ON THE WEBSITE OF THE HEALTH CARE PLAN;
   § 7. Subdivision 5-a of section 4903 of  the  public  health  law,  as
 added  by  a  chapter of the laws of 2023 amending the insurance law and
 the public health law relating to requiring notice of adverse step ther-
 apy determinations, as proposed in legislative bills numbers  S.  2677-A
 and A.  463-A, is REPEALED.
   §  8. Subdivision 5 of section 4903 of the public health law, as added
 by chapter 705 of the laws of 1996, paragraph (b) as amended by  chapter
 586 of the laws of 1998, is amended to read as follows:
   5. (A) Notice of an adverse determination made by a utilization review
 agent shall be in writing and must include:
   [(a)]  (I)  the  reasons  for the determination including the clinical
 rationale, if any;
   [(b)] (II) instructions on how  to  initiate  standard  and  expedited
 appeals  pursuant  to  section  forty-nine  hundred four and an external
 appeal pursuant to section forty-nine hundred fourteen of this  article;
 [and
   (c)]  (III)  notice of the availability, upon request of the enrollee,
 or the enrollee's designee, of the clinical review criteria relied  upon
 to make such determination. Such notice shall also specify what, if any,
 additional  necessary  information  must be provided to, or obtained by,
 the utilization review agent in  order  to  render  a  decision  on  the
 appeal; AND
   (IV)  FOR  AN ADVERSE DETERMINATION RELATED TO A STEP THERAPY PROTOCOL
 OVERRIDE REQUEST, INFORMATION THAT INCLUDES THE CLINICAL REVIEW CRITERIA
 RELIED UPON TO MAKE SUCH DETERMINATION AND  ANY  APPLICABLE  ALTERNATIVE
 PRESCRIPTION  DRUGS SUBJECT TO THE STEP THERAPY PROTOCOL OF THE UTILIZA-
 TION REVIEW AGENT.
   (b) A utilization review agent may provide notice of an adverse deter-
 mination related to a step therapy protocol override determination elec-
 tronically pursuant to subdivision nine of this  section,  including  by
 electronic  mail  or  through  the  health care plan's member portal and
 provider portal. An electronic notice of such an  adverse  determination
 may  meet the requirements of subparagraph (iv) of paragraph (a) of this
 subdivision by linking to information  posted  on  the  website  of  the
 health care plan.
 S. 8038                             4
 
   §  9.  This  act  shall  take  effect on the same date and in the same
 manner as a chapter of the laws of 2023 amending the insurance  law  and
 the public health law relating to requiring notice of adverse step ther-
 apy  determinations,  as proposed in legislative bills numbers S. 2677-A
 and A.  463-A, takes effect.