[ ] is old law to be omitted.
LBD00514-08-1
S. 2121--B 2
(A) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND WHO IS BOARD CERTIFIED OR BOARD ELIGI-
BLE IN PEDIATRIC REHABILITATION, PEDIATRIC CRITICAL CARE, OR NEONATOLO-
GY; OR
(B) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND IS BOARD CERTIFIED IN A PEDIATRIC
SUBSPECIALTY DIRECTLY RELEVANT TO THE PATIENT'S MEDICAL CONDITION; AND
§ 2. Paragraph (b) of subdivision 2 of section 4900 of the public
health law, as amended by chapter 586 of the laws of 1998, is amended to
read as follows:
(b) for purposes of title two of this article:
(i) a physician who:
(A) possesses a current and valid non-restricted license to practice
medicine;
(B) where applicable, is board certified or board eligible in the same
or similar specialty as the health care provider who typically manages
the medical condition or disease or provides the health care service or
treatment under appeal;
(C) has been practicing in such area of specialty for a period of at
least five years; and
(D) is knowledgeable about the health care service or treatment under
appeal; or
(ii) a health care professional other than a licensed physician who:
(A) where applicable, possesses a current and valid non-restricted
license, certificate or registration;
(B) where applicable, is credentialed by the national accrediting body
appropriate to the profession in the same profession and same or similar
specialty as the health care provider who typically manages the medical
condition or disease or provides the health care service or treatment
under appeal;
(C) has been practicing in such area of specialty for a period of at
least five years;
(D) is knowledgeable about the health care service or treatment under
appeal; and
(E) where applicable to such health care professional's scope of prac-
tice, is clinically supported by a physician who possesses a current and
valid non-restricted license to practice medicine; OR
(III) FOR PURPOSES OF A DETERMINATION INVOLVING TREATMENT OF A
MEDICALLY FRAGILE CHILD:
(A) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND WHO IS BOARD CERTIFIED OR BOARD ELIGI-
BLE IN PEDIATRIC REHABILITATION, PEDIATRIC CRITICAL CARE, OR NEONATOLO-
GY, OR
(B) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND IS BOARD CERTIFIED IN A PEDIATRIC
SUBSPECIALTY DIRECTLY RELEVANT TO THE PATIENT'S MEDICAL CONDITION.
§ 3. Subdivision 2-a of section 4900 of the public health law, as
added by chapter 586 of the laws of 1998, is amended to read as follows:
2-a. "Clinical standards" means those guidelines and standards set
forth in the utilization review plan by the utilization review agent
whose adverse determination is under appeal OR, IN THE CASE OF MEDICALLY
FRAGILE CHILDREN, THOSE GUIDELINES AND STANDARDS AS REQUIRED BY SECTION
FORTY-NINE HUNDRED THREE-A OF THIS ARTICLE.
§ 4. Paragraph (c) of subdivision 10 of section 4900 of the public
health law, as added by chapter 705 of the laws of 1996, is amended to
read as follows:
S. 2121--B 3
(c) a description of practice guidelines and standards used by a
utilization review agent in carrying out a determination of medical
necessity, WHICH IN THE CASE OF MEDICALLY FRAGILE CHILDREN SHALL INCOR-
PORATE THE STANDARDS REQUIRED BY SECTION FORTY-NINE HUNDRED THREE-A OF
THIS ARTICLE;
§ 5. Section 4900 of the public health law is amended by adding a new
subdivision 11 to read as follows:
11. "MEDICALLY FRAGILE CHILD" MEANS AN INDIVIDUAL WHO IS UNDER TWEN-
TY-ONE YEARS OF AGE AND HAS A CHRONIC DEBILITATING CONDITION OR CONDI-
TIONS, WHO MAY OR MAY NOT BE HOSPITALIZED OR INSTITUTIONALIZED, AND
MEETS ONE OR MORE OF THE FOLLOWING CRITERIA (A) IS TECHNOLOGICALLY
DEPENDENT FOR LIFE OR HEALTH SUSTAINING FUNCTIONS, (B) REQUIRES A
COMPLEX MEDICATION REGIMEN OR MEDICAL INTERVENTIONS TO MAINTAIN OR TO
IMPROVE THEIR HEALTH STATUS, OR (C) IS IN NEED OF ONGOING ASSESSMENT OR
INTERVENTION TO PREVENT SERIOUS DETERIORATION OF THEIR HEALTH STATUS OR
MEDICAL COMPLICATIONS THAT PLACE THEIR LIFE, HEALTH OR DEVELOPMENT AT
RISK. CHRONIC DEBILITATING CONDITIONS INCLUDE, BUT ARE NOT LIMITED TO,
BRONCHOPULMONARY DYSPLASIA, CEREBRAL PALSY, CONGENITAL HEART DISEASE,
MICROCEPHALY, PULMONARY HYPERTENSION, AND MUSCULAR DYSTROPHY. THE TERM
"MEDICALLY FRAGILE CHILD" SHALL ALSO INCLUDE SEVERE CONDITIONS, INCLUD-
ING BUT NOT LIMITED TO TRAUMATIC BRAIN INJURY, WHICH TYPICALLY REQUIRE
CARE IN A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN, EVEN
THOUGH THE CHILD DOES NOT HAVE A CHRONIC DEBILITATING CONDITION OR ALSO
MEET ONE OF THE THREE CONDITIONS OF THIS SUBDIVISION. IN ORDER TO FACIL-
ITATE THE PROMPT AND CONVENIENT IDENTIFICATION OF PARTICULAR PATIENT
CARE SITUATIONS MEETING THE DEFINITIONS OF THIS SUBDIVISION, THE COMMIS-
SIONER MAY ISSUE WRITTEN GUIDANCE LISTING (BY DIAGNOSIS CODES, UTILIZA-
TION THRESHOLDS, OR OTHER AVAILABLE CODING OR COMMONLY USED MEDICAL
CLASSIFICATIONS) THE TYPES OF PATIENT CARE NEEDS WHICH ARE DEEMED TO
MEET THIS DEFINITION. NOTWITHSTANDING THE DEFINITIONS SET FORTH IN THIS
SUBDIVISION, ANY PATIENT WHICH HAS RECEIVED PRIOR APPROVAL FROM A UTILI-
ZATION REVIEW AGENT FOR ADMISSION TO A SPECIALTY CARE FACILITY FOR
MEDICALLY FRAGILE CHILDREN SHALL BE CONSIDERED A MEDICALLY FRAGILE CHILD
AT LEAST UNTIL DISCHARGE FROM THAT FACILITY OCCURS.
§ 6. The public health law is amended by adding a new section 4903-a
to read as follows:
§ 4903-A. UTILIZATION REVIEW DETERMINATIONS FOR MEDICALLY FRAGILE
CHILDREN. 1. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THE UTILIZA-
TION REVIEW AGENT'S CLINICAL STANDARDS, THE UTILIZATION REVIEW AGENT
SHALL ADMINISTER AND APPLY THE CLINICAL STANDARDS (AND MAKE DETERMI-
NATIONS OF MEDICAL NECESSITY) REGARDING MEDICALLY FRAGILE CHILDREN IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. TO THE EXTENT ANY OF
THE REQUIREMENTS OF THIS SECTION IMPOSE OBLIGATIONS WHICH EXTEND BEYOND
THE CONTRACTED ROLE OF ANY INDEPENDENT UTILIZATION REVIEW AGENT UNDER
CONTRACT WITH A HEALTH MAINTENANCE ORGANIZATION, IT SHALL BE THE OBLI-
GATION OF THE HEALTH MAINTENANCE ORGANIZATION TO COMPLY WITH ALL
PORTIONS OF THIS SECTION WHICH ARE NOT ADMINISTERED BY THE INDEPENDENT
UTILIZATION REVIEW AGENT.
2. IN THE CASE OF A MEDICALLY FRAGILE CHILD, THE TERM "MEDICALLY
NECESSARY" SHALL MEAN HEALTH CARE AND SERVICES THAT ARE NECESSARY TO
PROMOTE NORMAL GROWTH AND DEVELOPMENT AND PREVENT, DIAGNOSE, TREAT,
AMELIORATE OR PALLIATE THE EFFECTS OF A PHYSICAL, MENTAL, BEHAVIORAL,
GENETIC, OR CONGENITAL CONDITION, INJURY OR DISABILITY. WHEN APPLIED TO
THE CIRCUMSTANCES OF ANY PARTICULAR MEDICALLY FRAGILE CHILD, THE TERM
"MEDICALLY NECESSARY" SHALL INCLUDE (A) THE CARE OR SERVICES THAT ARE
ESSENTIAL TO PREVENT, DIAGNOSE, PREVENT THE WORSENING OF, ALLEVIATE OR
S. 2121--B 4
AMELIORATE THE EFFECTS OF AN ILLNESS, INJURY, DISABILITY, DISORDER OR
CONDITION, (B) THE CARE OR SERVICES THAT ARE ESSENTIAL TO THE OVERALL
PHYSICAL, COGNITIVE AND MENTAL GROWTH AND DEVELOPMENTAL NEEDS OF THE
CHILD, AND (C) THE CARE OR SERVICES THAT WILL ASSIST THE CHILD TO
ACHIEVE OR MAINTAIN MAXIMUM FUNCTIONAL CAPACITY IN PERFORMING DAILY
ACTIVITIES, TAKING INTO ACCOUNT BOTH THE FUNCTIONAL CAPACITY OF THE
CHILD AND THOSE FUNCTIONAL CAPACITIES THAT ARE APPROPRIATE FOR INDIVID-
UALS OF THE SAME AGE AS THE CHILD. THE UTILIZATION REVIEW AGENT SHALL
BASE ITS DETERMINATION ON MEDICAL AND OTHER RELEVANT INFORMATION
PROVIDED BY THE CHILD'S PRIMARY CARE PROVIDER, OTHER HEALTH CARE PROVID-
ERS, SCHOOL, LOCAL SOCIAL SERVICES, AND/OR LOCAL PUBLIC HEALTH OFFICIALS
THAT HAVE EVALUATED THE CHILD, AND THE UTILIZATION REVIEW AGENT WILL
ENSURE THE CARE AND SERVICES ARE PROVIDED IN SUFFICIENT AMOUNT, DURATION
AND SCOPE TO REASONABLY BE EXPECTED TO PRODUCE THE INTENDED RESULTS AND
TO HAVE THE EXPECTED BENEFITS THAT OUTWEIGH THE POTENTIAL HARMFUL
EFFECTS.
3. UTILIZATION REVIEW AGENTS SHALL UNDERTAKE THE FOLLOWING WITH
RESPECT TO MEDICALLY FRAGILE CHILDREN:
(A) CONSIDER AS MEDICALLY NECESSARY ALL COVERED SERVICES THAT ASSIST
MEDICALLY FRAGILE CHILDREN IN REACHING THEIR MAXIMUM FUNCTIONAL CAPACI-
TY, TAKING INTO ACCOUNT THE APPROPRIATE FUNCTIONAL CAPACITIES OF CHIL-
DREN OF THE SAME AGE. HEALTH MAINTENANCE ORGANIZATIONS MUST CONTINUE TO
COVER SERVICES UNTIL THAT CHILD ACHIEVES AGE-APPROPRIATE FUNCTIONAL
CAPACITY. A MANAGED CARE PROVIDER, AUTHORIZED BY SECTION THREE HUNDRED
SIXTY-FOUR-J OF THE SOCIAL SERVICES LAW, SHALL ALSO BE REQUIRED TO MAKE
PAYMENT FOR COVERED SERVICES REQUIRED TO COMPLY WITH FEDERAL EARLY PERI-
ODIC SCREENING, DIAGNOSIS, AND TREATMENT ("EPSDT") STANDARDS, AS SPECI-
FIED BY THE COMMISSIONER OF HEALTH.
(B) SHALL NOT BASE DETERMINATIONS SOLELY UPON REVIEW STANDARDS APPLI-
CABLE TO (OR DESIGNED FOR) ADULTS TO MEDICALLY FRAGILE CHILDREN. ADULT
STANDARDS INCLUDE, BUT ARE NOT LIMITED TO, MEDICARE REHABILITATION STAN-
DARDS AND THE "MEDICARE 3 HOUR RULE." DETERMINATIONS HAVE TO TAKE INTO
CONSIDERATION THE SPECIFIC NEEDS OF THE CHILD AND THE CIRCUMSTANCES
PERTAINING TO THEIR GROWTH AND DEVELOPMENT.
(C) ACCOMMODATE UNUSUAL STABILIZATION AND PROLONGED DISCHARGE PLANS
FOR MEDICALLY FRAGILE CHILDREN, AS APPROPRIATE. ISSUES UTILIZATION
REVIEW AGENTS MUST CONSIDER WHEN DEVELOPING AND APPROVING DISCHARGE
PLANS INCLUDE, BUT ARE NOT LIMITED TO: SUDDEN REVERSALS OF CONDITION OR
PROGRESS, WHICH MAY MAKE DISCHARGE DECISIONS UNCERTAIN OR MORE PROLONGED
THAN FOR OTHER CHILDREN OR ADULTS; NECESSARY TRAINING OF PARENTS OR
OTHER ADULTS TO CARE FOR MEDICALLY FRAGILE CHILDREN AT HOME; UNUSUAL
DISCHARGE DELAYS ENCOUNTERED IF PARENTS OR OTHER RESPONSIBLE ADULTS
DECLINE OR ARE SLOW TO ASSUME FULL RESPONSIBILITY FOR CARING FOR
MEDICALLY FRAGILE CHILDREN; THE NEED TO AWAIT AN APPROPRIATE HOME OR
HOME-LIKE ENVIRONMENT RATHER THAN DISCHARGE TO A HOUSING SHELTER OR
OTHER INAPPROPRIATE SETTING FOR MEDICALLY FRAGILE CHILDREN, THE NEED TO
AWAIT CONSTRUCTION ADAPTATIONS TO THE HOME (SUCH AS THE INSTALLATION OF
GENERATORS OR OTHER EQUIPMENT); AND LACK OF AVAILABLE SUITABLE SPECIAL-
IZED CARE (SUCH AS UNAVAILABILITY OF PEDIATRIC NURSING HOME BEDS, PEDIA-
TRIC VENTILATOR UNITS, PEDIATRIC PRIVATE DUTY NURSING IN THE HOME, OR
SPECIALIZED PEDIATRIC HOME CARE SERVICES). UTILIZATION REVIEW AGENTS
MUST DEVELOP A PERSON CENTERED DISCHARGE PLAN FOR THE CHILD TAKING THE
ABOVE SITUATIONS INTO CONSIDERATION.
(D) IT IS THE UTILIZATION REVIEW AGENT'S NETWORK MANAGEMENT RESPONSI-
BILITY TO IDENTIFY AN AVAILABLE PROVIDER OF NEEDED COVERED SERVICES, AS
DETERMINED THROUGH A PERSON CENTERED CARE PLAN, TO EFFECT SAFE DISCHARGE
S. 2121--B 5
FROM A HOSPITAL OR OTHER FACILITY; PAYMENTS SHALL NOT BE DENIED TO A
DISCHARGING HOSPITAL OR OTHER FACILITY DUE TO LACK OF AN AVAILABLE POST-
DISCHARGE PROVIDER AS LONG AS THEY HAVE WORKED WITH THE UTILIZATION
REVIEW AGENT TO IDENTIFY AN APPROPRIATE PROVIDER. UTILIZATION REVIEW
AGENTS ARE REQUIRED TO APPROVE THE USE OF OUT-OF-NETWORK PROVIDERS IF
THE HEALTH MAINTENANCE ORGANIZATION DOES NOT HAVE A PARTICIPATING
PROVIDER TO ADDRESS THE NEEDS OF THE CHILD.
(E) THIS SECTION DOES NOT LIMIT ANY OTHER RIGHTS THE MEDICALLY FRAGILE
CHILD MAY HAVE, INCLUDING THE RIGHT TO APPEAL THE DENIAL OF OUT OF
NETWORK COVERAGE AT IN-NETWORK COST SHARING LEVELS WHERE AN APPROPRIATE
IN-NETWORK PROVIDER IS NOT AVAILABLE PURSUANT TO SUBDIVISION ONE-B OF
SECTION FORTY-NINE HUNDRED FOUR OF THIS TITLE.
(F) UTILIZATION REVIEW AGENTS MUST ENSURE THAT MEDICALLY FRAGILE CHIL-
DREN RECEIVE SERVICES FROM APPROPRIATE PROVIDERS THAT HAVE THE EXPERTISE
TO EFFECTIVELY TREAT THE CHILD AND MUST CONTRACT WITH PROVIDERS WITH
DEMONSTRATED EXPERTISE IN CARING FOR THE MEDICALLY FRAGILE CHILDREN.
NETWORK PROVIDERS SHALL REFER TO APPROPRIATE NETWORK COMMUNITY AND
FACILITY PROVIDERS TO MEET THE NEEDS OF THE CHILD OR SEEK AUTHORIZATION
FROM THE UTILIZATION REVIEW AGENT FOR OUT-OF-NETWORK PROVIDERS WHEN
PARTICIPATING PROVIDERS CANNOT MEET THE CHILD'S NEEDS. THE UTILIZATION
REVIEW AGENT MUST AUTHORIZE SERVICES AS FAST AS THE ENROLLEE'S CONDITION
REQUIRES AND IN ACCORDANCE WITH ESTABLISHED TIMEFRAMES IN THE CONTRACTS
OR POLICY FORMS.
4. A HEALTH MAINTENANCE ORGANIZATION SHALL HAVE A PROCEDURE BY WHICH
AN ENROLLEE WHO IS A MEDICALLY FRAGILE CHILD WHO REQUIRES SPECIALIZED
MEDICAL CARE OVER A PROLONGED PERIOD OF TIME, MAY RECEIVE A REFERRAL TO
A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN. IF THE HEALTH
MAINTENANCE ORGANIZATION, OR THE PRIMARY CARE PROVIDER OR THE SPECIALIST
TREATING THE PATIENT, IN CONSULTATION WITH A MEDICAL DIRECTOR OF THE
UTILIZATION REVIEW AGENT, DETERMINES THAT THE ENROLLEE'S CARE WOULD MOST
APPROPRIATELY BE PROVIDED BY SUCH A SPECIALTY CARE CENTER, THE ORGANIZA-
TION SHALL REFER THE ENROLLEE TO SUCH CENTER. IN NO EVENT SHALL A HEALTH
MAINTENANCE ORGANIZATION BE REQUIRED TO PERMIT AN ENROLLEE TO ELECT TO
HAVE A NON-PARTICIPATING SPECIALTY CARE CENTER, UNLESS THE ORGANIZATION
DOES NOT HAVE AN APPROPRIATE SPECIALTY CARE CENTER TO TREAT THE
ENROLLEE'S DISEASE OR CONDITION WITHIN ITS NETWORK. SUCH REFERRAL SHALL
BE PURSUANT TO A TREATMENT PLAN DEVELOPED BY THE SPECIALTY CARE CENTER
AND APPROVED BY THE HEALTH MAINTENANCE ORGANIZATION, IN CONSULTATION
WITH THE PRIMARY CARE PROVIDER, IF ANY, OR A SPECIALIST TREATING THE
PATIENT, AND THE ENROLLEE OR THE ENROLLEE'S DESIGNEE. IF AN ORGANIZATION
REFERS AN ENROLLEE TO A SPECIALTY CARE CENTER THAT DOES NOT PARTICIPATE
IN THE ORGANIZATION'S NETWORK, SERVICES PROVIDED PURSUANT TO THE
APPROVED TREATMENT PLAN SHALL BE PROVIDED AT NO ADDITIONAL COST TO THE
ENROLLEE BEYOND WHAT THE ENROLLEE WOULD OTHERWISE PAY FOR SERVICES
RECEIVED WITHIN THE NETWORK. FOR PURPOSES OF THIS SECTION, A SPECIALTY
CARE CENTER FOR MEDICALLY FRAGILE CHILDREN SHALL MEAN A CHILDREN'S
HOSPITAL AS DEFINED PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH (E-2) OF
SUBDIVISION FOUR OF SECTION TWENTY-EIGHT HUNDRED SEVEN-C OF THIS CHAP-
TER, A RESIDENTIAL HEALTH CARE FACILITY AFFILIATED WITH SUCH A CHIL-
DREN'S HOSPITAL, ANY RESIDENTIAL HEALTH CARE FACILITY WITH A SPECIALTY
PEDIATRIC BED AVERAGE DAILY CENSUS DURING TWO THOUSAND SEVENTEEN OF
FIFTY OR MORE PATIENTS, OR A FACILITY WHICH SATISFIES SUCH OTHER CRITE-
RIA AS THE COMMISSIONER MAY DESIGNATE.
5. WHEN RENDERING OR ARRANGING FOR CARE OR PAYMENT, BOTH THE PROVIDER
AND THE HEALTH MAINTENANCE ORGANIZATION SHALL INQUIRE OF, AND SHALL
CONSIDER THE DESIRES OF THE FAMILY OF A MEDICALLY FRAGILE CHILD INCLUD-
S. 2121--B 6
ING, BUT NOT LIMITED TO, THE AVAILABILITY AND CAPACITY OF THE FAMILY,
THE NEED FOR THE FAMILY TO SIMULTANEOUSLY CARE FOR THE FAMILY'S OTHER
CHILDREN, AND THE NEED FOR PARENTS TO CONTINUE EMPLOYMENT.
6. EXCEPT IN THE CASE OF MEDICAID MANAGED CARE, THE HEALTH MAINTENANCE
ORGANIZATION MUST PAY AT LEAST EIGHTY-FIVE PERCENT (UNLESS A DIFFERENT
PERCENTAGE OR METHOD HAS BEEN MUTUALLY AGREED TO) OF THE FACILITY'S
NEGOTIATED ACUTE CARE RATE FOR ALL DAYS OF INPATIENT HOSPITAL CARE AT A
PARTICIPATING SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN WHEN
THE HEALTH MAINTENANCE ORGANIZATION AND THE SPECIALTY CARE FACILITY
MUTUALLY AGREE THE PATIENT IS READY FOR DISCHARGE FROM THE SPECIALTY
CARE CENTER TO THE PATIENT'S HOME BUT REQUIRES SPECIALIZED HOME SERVICES
THAT ARE NOT AVAILABLE OR IN PLACE, OR THE PATIENT IS AWAITING DISCHARGE
TO A RESIDENTIAL HEALTH CARE FACILITY WHEN NO RESIDENTIAL HEALTH CARE
FACILITY BED IS AVAILABLE GIVEN THE SPECIALIZED NEEDS OF THE MEDICALLY
FRAGILE CHILD. MEDICAID MANAGED CARE PLANS SHALL PAY FOR SUCH ADDITIONAL
DAYS AT A RATE NEGOTIATED BETWEEN THE MEDICAID MANAGED CARE PLAN AND THE
HOSPITAL. EXCEPT IN THE CASE OF MEDICAID MANAGED CARE, THE HEALTH MAIN-
TENANCE ORGANIZATION MUST PAY AT LEAST THE FACILITY'S MEDICAID SKILLED
NURSING FACILITY RATE, UNLESS A DIFFERENT RATE HAS BEEN MUTUALLY NEGOTI-
ATED, FOR ALL DAYS OF RESIDENTIAL HEALTH CARE FACILITY CARE AT A PARTIC-
IPATING SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN WHEN THE
HEALTH MAINTENANCE ORGANIZATION AND THE SPECIALTY CARE FACILITY MUTUALLY
AGREE THE PATIENT IS READY FOR DISCHARGE FROM THE SPECIALTY CARE CENTER
TO THE PATIENT'S HOME BUT REQUIRES SPECIALIZED HOME SERVICES THAT ARE
NOT AVAILABLE OR IN PLACE. MEDICAID MANAGED CARE PLANS SHALL PAY FOR
SUCH ADDITIONAL DAYS AT A RATE NEGOTIATED BETWEEN THE MEDICAID MANAGED
CARE PLAN AND THE RESIDENTIAL HEALTH CARE FACILITY. SUCH REQUIREMENTS
SHALL APPLY UNTIL THE HEALTH PLAN CAN IDENTIFY AND SECURE ADMISSION TO
AN ALTERNATE PROVIDER RENDERING THE NECESSARY LEVEL OF SERVICES. THE
SPECIALTY CARE CENTER MUST COOPERATE WITH THE HEALTH MAINTENANCE ORGAN-
IZATION'S PLACEMENT EFFORTS.
7. IN THE EVENT A HEALTH MAINTENANCE ORGANIZATION ENTERS INTO A
PARTICIPATION AGREEMENT WITH A SPECIALTY CARE CENTER FOR MEDICALLY FRAG-
ILE CHILDREN IN THIS STATE, THE REQUIREMENTS OF THIS SECTION SHALL APPLY
TO SUCH PARTICIPATION AGREEMENT AND TO ALL CLAIMS SUBMITTED TO, OR
PAYMENTS MADE BY, ANY OTHER HEALTH MAINTENANCE ORGANIZATIONS, INSURERS
OR PAYORS MAKING PAYMENT TO THE SPECIALTY CARE CENTER PURSUANT TO THE
PROVISIONS OF THAT PARTICIPATION AGREEMENT.
8. (A) THE COMMISSIONER SHALL DESIGNATE A SINGLE SET OF CLINICAL STAN-
DARDS APPLICABLE TO ALL UTILIZATION REVIEW AGENTS REGARDING PEDIATRIC
EXTENDED ACUTE CARE STAYS (DEFINED FOR THE PURPOSES OF THIS SECTION AS
DISCHARGE FROM ONE ACUTE CARE HOSPITAL FOLLOWED BY IMMEDIATE ADMISSION
TO A SECOND ACUTE CARE HOSPITAL; NOT INCLUDING TRANSFERS OF CASE PAYMENT
CASES AS DEFINED IN SECTION TWENTY-EIGHT HUNDRED SEVEN-C OF THIS CHAP-
TER). THE STANDARDS SHALL BE ADAPTED FROM NATIONAL LONG TERM ACUTE CARE
HOSPITAL STANDARDS FOR ADULTS AND SHALL BE APPROVED BY THE COMMISSIONER,
AFTER CONSULTATION WITH ONE OR MORE SPECIALTY CARE CENTERS FOR MEDICALLY
FRAGILE CHILDREN. THE STANDARDS SHALL INCLUDE, BUT NOT BE LIMITED TO,
SPECIFICATIONS OF THE LEVEL OF CARE SUPPORTS IN THE PATIENT'S HOME, AT A
SKILLED NURSING FACILITY OR OTHER SETTING, THAT MUST BE IN PLACE IN
ORDER TO SAFELY AND ADEQUATELY CARE FOR A MEDICALLY FRAGILE CHILD BEFORE
MEDICALLY COMPLEX ACUTE CARE CAN BE DEEMED NO LONGER MEDICALLY NECES-
SARY. THE STANDARDS DESIGNATED BY THE COMMISSIONER SHALL PRE-EMPT THE
CLINICAL STANDARDS, IF ANY, FOR PEDIATRIC EXTENDED ACUTE CARE SET FORTH
IN THE UTILIZATION REVIEW PLAN BY THE UTILIZATION REVIEW AGENT.
S. 2121--B 7
(B) THE COMMISSIONER SHALL DESIGNATE A SINGLE SET OF SUPPLEMENTAL
CLINICAL STANDARDS (IN ADDITION TO THE CLINICAL STANDARDS SELECTED BY
THE UTILIZATION REVIEW AGENT) APPLICABLE TO ALL UTILIZATION REVIEW
AGENTS REGARDING ACUTE AND SUB-ACUTE INPATIENT REHABILITATION FOR
MEDICALLY FRAGILE CHILDREN. THE SUPPLEMENTAL STANDARDS SHALL SPECIFY THE
LEVEL OF CARE SUPPORTS IN THE PATIENT'S HOME, AT A SKILLED NURSING
FACILITY OR OTHER SETTING, THAT MUST BE IN PLACE IN ORDER TO SAFELY AND
ADEQUATELY CARE FOR A MEDICALLY FRAGILE CHILD BEFORE ACUTE OR SUB-ACUTE
INPATIENT REHABILITATION CAN BE DEEMED NO LONGER MEDICALLY NECESSARY.
THE SUPPLEMENTAL STANDARDS DESIGNATED BY THE COMMISSIONER SHALL PRE-EMPT
THE CLINICAL STANDARDS, IF ANY, REGARDING READINESS FOR DISCHARGE OF
MEDICALLY FRAGILE CHILDREN FROM ACUTE OR SUB-ACUTE INPATIENT REHABILI-
TATION, AS SET FORTH IN THE UTILIZATION REVIEW PLAN BY THE UTILIZATION
REVIEW AGENT.
9. IN ALL INSTANCES THE UTILIZATION REVIEW AGENT SHALL DEFER TO THE
RECOMMENDATIONS OF THE REFERRING PHYSICIAN TO REFER A MEDICALLY FRAGILE
CHILD FOR CARE AT A PARTICULAR SPECIALTY PROVIDER OF CARE TO MEDICALLY
FRAGILE CHILDREN, OR THE RECOMMENDED TREATMENT PLAN BY THE TREATING
PHYSICIAN AT A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN,
EXCEPT WHERE THE UTILIZATION REVIEW AGENT HAS DETERMINED, BY CLEAR AND
CONVINCING EVIDENCE, THAT: (A) THE RECOMMENDED PROVIDER OR PROPOSED
TREATMENT PLAN IS NOT IN THE BEST INTEREST OF THE MEDICALLY FRAGILE
CHILD, OR (B) AN ALTERNATIVE PROVIDER OFFERING SUBSTANTIALLY THE SAME
LEVEL OF CARE IN ACCORDANCE WITH SUBSTANTIALLY THE SAME TREATMENT PLAN
IS AVAILABLE FROM A LOWER COST PROVIDER.
§ 7. Section 4403 of the public health law is amended by adding a new
subdivision 9 to read as follows:
9. A HEALTH MAINTENANCE ORGANIZATION SHALL HAVE PROCEDURES FOR COVER-
AGE OF MEDICALLY FRAGILE CHILDREN INCLUDING, BUT NOT LIMITED TO, THOSE
NECESSARY TO IMPLEMENT SECTION FORTY-NINE HUNDRED THREE-A OF THIS ARTI-
CLE.
§ 8. Subparagraph (D) of paragraph 1 of subsection (b) of section 4900
of the insurance law, as added by section 36 of subpart A of part BB of
chapter 57 of the laws of 2019, is amended and a new subparagraph (E) is
added to read as follows:
(D) for purposes of a determination involving treatment for a mental
health condition:
(i) a physician who possesses a current and valid non-restricted
license to practice medicine and who specializes in behavioral health
and has experience in the delivery of mental health courses of treat-
ment; or
(ii) a health care professional other than a licensed physician who
specializes in behavioral health and has experience in the delivery of
mental health courses of treatment and, where applicable, possesses a
current and valid non-restricted license, certificate, or registration
or, where no provision for a license, certificate or registration
exists, is credentialed by the national accrediting body appropriate to
the profession; [and] OR
(E) FOR PURPOSES OF A DETERMINATION INVOLVING TREATMENT OF A MEDICALLY
FRAGILE CHILD:
(I) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND WHO IS BOARD CERTIFIED OR BOARD ELIGI-
BLE IN PEDIATRIC REHABILITATION, PEDIATRIC CRITICAL CARE, OR NEONATOLO-
GY; OR
S. 2121--B 8
(II) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND IS BOARD CERTIFIED IN A PEDIATRIC
SUBSPECIALTY DIRECTLY RELEVANT TO THE PATIENT'S MEDICAL CONDITION; AND
§ 9. Paragraph 2 of subsection (b) of section 4900 of the insurance
law, as amended by chapter 586 of the laws of 1998, is amended to read
as follows:
(2) for purposes of title two of this article:
(A) a physician who:
(i) possesses a current and valid non-restricted license to practice
medicine;
(ii) where applicable, is board certified or board eligible in the
same or similar specialty as the health care provider who typically
manages the medical condition or disease or provides the health care
service or treatment under appeal;
(iii) has been practicing in such area of specialty for a period of at
least five years; and
(iv) is knowledgeable about the health care service or treatment under
appeal; or
(B) a health care professional other than a licensed physician who:
(i) where applicable, possesses a current and valid non-restricted
license, certificate or registration;
(ii) where applicable, is credentialed by the national accrediting
body appropriate to the profession in the same profession and same or
similar specialty as the health care provider who typically manages the
medical condition or disease or provides the health care service or
treatment under appeal;
(iii) has been practicing in such area of specialty for a period of at
least five years;
(iv) is knowledgeable about the health care service or treatment under
appeal; and
(v) where applicable to such health care professional's scope of prac-
tice, is clinically supported by a physician who possesses a current and
valid non-restricted license to practice medicine; OR
(C) FOR PURPOSES OF A DETERMINATION INVOLVING TREATMENT OF A MEDICALLY
FRAGILE CHILD:
(I) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND WHO IS BOARD CERTIFIED OR BOARD ELIGI-
BLE IN PEDIATRIC REHABILITATION, PEDIATRIC CRITICAL CARE, OR NEONATOLO-
GY; OR
(II) A PHYSICIAN WHO POSSESSES A CURRENT AND VALID NON-RESTRICTED
LICENSE TO PRACTICE MEDICINE AND IS BOARD CERTIFIED IN A PEDIATRIC
SUBSPECIALTY DIRECTLY RELEVANT TO THE PATIENT'S MEDICAL CONDITION.
§ 10. Subsection (b-1) of section 4900 of the insurance law, asadded
by chapter 586 of the laws of 1998, is amended to read as follows:
(b-1) "Clinical standards" means those guidelines and standards set
forth in the utilization review plan by the utilization review agent
whose adverse determination is under appeal OR, IN THE CASE OF MEDICALLY
FRAGILE CHILDREN THOSE GUIDELINES AND STANDARDS AS REQUIRED BY SECTION
FORTY-NINE HUNDRED THREE-A OF THIS ARTICLE.
§ 11. Subsection (j) of section 4900 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:
(j) "Utilization review plan" means: (1) a description of the process
for developing the written clinical review criteria; (2) a description
of the types of written clinical information which the plan might
consider in its clinical review, including but not limited to, a set of
specific written clinical review criteria; (3) a description of practice
S. 2121--B 9
guidelines and standards used by a utilization review agent in carrying
out a determination of medical necessity, WHICH, IN THE CASE OF
MEDICALLY FRAGILE CHILDREN, SHALL INCORPORATE THE STANDARDS REQUIRED BY
SECTION FORTY-NINE HUNDRED THREE-A OF THIS ARTICLE; (4) the procedures
for scheduled review and evaluation of the written clinical review
criteria; and (5) a description of the qualifications and experience of
the health care professionals who developed the criteria, who are
responsible for periodic evaluation of the criteria and of the health
care professionals or others who use the written clinical review crite-
ria in the process of utilization review.
§ 12. Section 4900 of the insurance law is amended by adding a new
subsection (k) to read as follows:
(K) "MEDICALLY FRAGILE CHILD" MEANS AN INDIVIDUAL WHO IS UNDER TWEN-
TY-ONE YEARS OF AGE AND HAS A CHRONIC DEBILITATING CONDITION OR CONDI-
TIONS, WHO MAY OR MAY NOT BE HOSPITALIZED OR INSTITUTIONALIZED, AND
MEETS ONE OR MORE OF THE FOLLOWING CRITERIA: (1) IS TECHNOLOGICALLY
DEPENDENT FOR LIFE OR HEALTH SUSTAINING FUNCTIONS; (2) REQUIRES A
COMPLEX MEDICATION REGIMEN OR MEDICAL INTERVENTIONS TO MAINTAIN OR TO
IMPROVE THEIR HEALTH STATUS; OR (3) IS IN NEED OF ONGOING ASSESSMENT OR
INTERVENTION TO PREVENT SERIOUS DETERIORATION OF THEIR HEALTH STATUS OR
MEDICAL COMPLICATIONS THAT PLACE THEIR LIFE, HEALTH OR DEVELOPMENT AT
RISK. CHRONIC DEBILITATING CONDITIONS INCLUDE, BUT ARE NOT LIMITED TO,
BRONCHOPULMONARY DYSPLASIA, CEREBRAL PALSY, CONGENITAL HEART DISEASE,
MICROCEPHALY, PULMONARY HYPERTENSION, AND MUSCULAR DYSTROPHY. THE TERM
"MEDICALLY FRAGILE CHILD" SHALL ALSO INCLUDE SEVERE CONDITIONS, INCLUD-
ING BUT NOT LIMITED TO TRAUMATIC BRAIN INJURY, WHICH TYPICALLY REQUIRE
CARE IN A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN, EVEN
THOUGH THE CHILD DOES NOT HAVE A CHRONIC DEBILITATING CONDITION OR ALSO
MEET ONE OF THE THREE CONDITIONS OF THIS SUBSECTION. IN ORDER TO FACILI-
TATE THE PROMPT AND CONVENIENT IDENTIFICATION OF PARTICULAR PATIENT CARE
SITUATIONS MEETING THE DEFINITIONS OF THIS SUBSECTION, THE SUPERINTEN-
DENT, AFTER CONSULTING WITH THE COMMISSIONER OF HEALTH, MAY ISSUE WRIT-
TEN GUIDANCE LISTING (BY DIAGNOSIS CODES, UTILIZATION THRESHOLDS, OR
OTHER AVAILABLE CODING OR COMMONLY USED MEDICAL CLASSIFICATIONS) THE
TYPES OF PATIENT CARE NEEDS WHICH ARE DEEMED TO MEET THIS DEFINITION.
NOTWITHSTANDING THE DEFINITIONS SET FORTH IN THIS SUBSECTION, ANY
PATIENT WHICH HAS RECEIVED PRIOR APPROVAL FROM A UTILIZATION REVIEW
AGENT FOR ADMISSION TO A SPECIALTY CARE FACILITY FOR MEDICALLY FRAGILE
CHILDREN SHALL BE CONSIDERED A MEDICALLY FRAGILE CHILD AT LEAST UNTIL
DISCHARGE FROM THAT FACILITY OCCURS.
§ 13. The insurance law is amended by adding a new section 4903-a to
read as follows:
§ 4903-A. UTILIZATION REVIEW DETERMINATIONS FOR MEDICALLY FRAGILE
CHILDREN. (A) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THE UTILIZA-
TION REVIEW AGENT'S CLINICAL STANDARDS, THE UTILIZATION REVIEW AGENT
SHALL ADMINISTER AND APPLY THE CLINICAL STANDARDS (AND MAKE DETERMI-
NATIONS OF MEDICAL NECESSITY) REGARDING MEDICALLY FRAGILE CHILDREN IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. TO THE EXTENT ANY OF
THE REQUIREMENTS OF THIS SECTION IMPOSE OBLIGATIONS WHICH EXTEND BEYOND
THE CONTRACTED ROLE OF ANY INDEPENDENT UTILIZATION REVIEW AGENT UNDER
CONTRACT WITH A HEALTH CARE PLAN, IT SHALL BE THE OBLIGATION OF THE
HEALTH CARE PLAN TO COMPLY WITH ALL PORTIONS OF THIS SECTION WHICH ARE
NOT ADMINISTERED BY THE INDEPENDENT UTILIZATION REVIEW AGENT.
(B) IN THE CASE OF A MEDICALLY FRAGILE CHILD, THE TERM "MEDICALLY
NECESSARY" SHALL MEAN HEALTH CARE AND SERVICES THAT ARE NECESSARY TO
PROMOTE NORMAL GROWTH AND DEVELOPMENT AND PREVENT, DIAGNOSE, TREAT,
S. 2121--B 10
AMELIORATE OR PALLIATE THE EFFECTS OF A PHYSICAL, MENTAL, BEHAVIORAL,
GENETIC, OR CONGENITAL CONDITION, INJURY OR DISABILITY. WHEN APPLIED TO
THE CIRCUMSTANCES OF ANY PARTICULAR MEDICALLY FRAGILE CHILD, THE TERM
"MEDICALLY NECESSARY" SHALL INCLUDE: (1) THE CARE OR SERVICES THAT ARE
ESSENTIAL TO PREVENT, DIAGNOSE, PREVENT THE WORSENING OF, ALLEVIATE OR
AMELIORATE THE EFFECTS OF AN ILLNESS, INJURY, DISABILITY, DISORDER OR
CONDITION; (2) THE CARE OR SERVICES THAT ARE ESSENTIAL TO THE OVERALL
PHYSICAL, COGNITIVE AND MENTAL GROWTH AND DEVELOPMENTAL NEEDS OF THE
CHILD; AND (3) THE CARE OR SERVICES THAT WILL ASSIST THE CHILD TO
ACHIEVE OR MAINTAIN MAXIMUM FUNCTIONAL CAPACITY IN PERFORMING DAILY
ACTIVITIES, TAKING INTO ACCOUNT BOTH THE FUNCTIONAL CAPACITY OF THE
CHILD AND THOSE FUNCTIONAL CAPACITIES THAT ARE APPROPRIATE FOR INDIVID-
UALS OF THE SAME AGE AS THE CHILD. THE UTILIZATION REVIEW AGENT SHALL
BASE ITS DETERMINATION ON MEDICAL AND OTHER RELEVANT INFORMATION
PROVIDED BY THE CHILD'S PRIMARY CARE PROVIDER, OTHER HEALTH CARE PROVID-
ERS, SCHOOL, LOCAL SOCIAL SERVICES, AND/OR LOCAL PUBLIC HEALTH OFFICIALS
THAT HAVE EVALUATED THE CHILD, AND THE UTILIZATION REVIEW AGENT WILL
ENSURE THE CARE AND SERVICES ARE PROVIDED IN SUFFICIENT AMOUNT, DURATION
AND SCOPE TO REASONABLY BE EXPECTED TO PRODUCE THE INTENDED RESULTS AND
TO HAVE THE EXPECTED BENEFITS THAT OUTWEIGH THE POTENTIAL HARMFUL
EFFECTS.
(C) UTILIZATION REVIEW AGENTS SHALL UNDERTAKE THE FOLLOWING WITH
RESPECT TO MEDICALLY FRAGILE CHILDREN:
(1) CONSIDER AS MEDICALLY NECESSARY ALL COVERED SERVICES THAT ASSIST
MEDICALLY FRAGILE CHILDREN IN REACHING THEIR MAXIMUM FUNCTIONAL CAPACI-
TY, TAKING INTO ACCOUNT THE APPROPRIATE FUNCTIONAL CAPACITIES OF CHIL-
DREN OF THE SAME AGE. UTILIZATION REVIEW AGENTS MUST CONTINUE TO COVER
SERVICES UNTIL THAT CHILD ACHIEVES AGE-APPROPRIATE FUNCTIONAL CAPACITY.
(2) SHALL NOT BASE DETERMINATIONS SOLELY UPON REVIEW STANDARDS APPLI-
CABLE TO (OR DESIGNED FOR) ADULTS TO MEDICALLY FRAGILE CHILDREN. ADULT
STANDARDS INCLUDE, BUT ARE NOT LIMITED TO, MEDICARE REHABILITATION STAN-
DARDS AND THE "MEDICARE 3 HOUR RULE." DETERMINATIONS HAVE TO TAKE INTO
CONSIDERATION THE SPECIFIC NEEDS OF THE CHILD AND THE CIRCUMSTANCES
PERTAINING TO THEIR GROWTH AND DEVELOPMENT.
(3) ACCOMMODATE UNUSUAL STABILIZATION AND PROLONGED DISCHARGE PLANS
FOR MEDICALLY FRAGILE CHILDREN, AS APPROPRIATE. ISSUES UTILIZATION
REVIEW AGENTS MUST CONSIDER WHEN DEVELOPING AND APPROVING DISCHARGE
PLANS INCLUDE, BUT ARE NOT LIMITED TO: SUDDEN REVERSALS OF CONDITION OR
PROGRESS, WHICH MAY MAKE DISCHARGE DECISIONS UNCERTAIN OR MORE PROLONGED
THAN FOR OTHER CHILDREN OR ADULTS; NECESSARY TRAINING OF PARENTS OR
OTHER ADULTS TO CARE FOR MEDICALLY FRAGILE CHILDREN AT HOME; UNUSUAL
DISCHARGE DELAYS ENCOUNTERED IF PARENTS OR OTHER RESPONSIBLE ADULTS
DECLINE OR ARE SLOW TO ASSUME FULL RESPONSIBILITY FOR CARING FOR
MEDICALLY FRAGILE CHILDREN; THE NEED TO AWAIT AN APPROPRIATE HOME OR
HOME-LIKE ENVIRONMENT RATHER THAN DISCHARGE TO A HOUSING SHELTER OR
OTHER INAPPROPRIATE SETTING FOR MEDICALLY FRAGILE CHILDREN, THE NEED TO
AWAIT CONSTRUCTION ADAPTATIONS TO THE HOME (SUCH AS THE INSTALLATION OF
GENERATORS OR OTHER EQUIPMENT); AND LACK OF AVAILABLE SUITABLE SPECIAL-
IZED CARE (SUCH AS UNAVAILABILITY OF PEDIATRIC NURSING HOME BEDS, PEDIA-
TRIC VENTILATOR UNITS, PEDIATRIC PRIVATE DUTY NURSING IN THE HOME, OR
SPECIALIZED PEDIATRIC HOME CARE SERVICES). UTILIZATION REVIEW AGENTS
MUST DEVELOP A PERSON CENTERED DISCHARGE PLAN FOR THE CHILD TAKING THE
ABOVE SITUATIONS INTO CONSIDERATION.
(4) IT IS THE UTILIZATION REVIEW AGENTS NETWORK MANAGEMENT RESPONSI-
BILITY TO IDENTIFY AN AVAILABLE PROVIDER OF NEEDED COVERED SERVICES, AS
DETERMINED THROUGH A PERSON CENTERED CARE PLAN, TO EFFECT SAFE DISCHARGE
S. 2121--B 11
FROM A HOSPITAL OR OTHER FACILITY; PAYMENTS SHALL NOT BE DENIED TO A
DISCHARGING HOSPITAL OR OTHER FACILITY DUE TO LACK OF AN AVAILABLE POST-
DISCHARGE PROVIDER AS LONG AS THEY HAVE WORKED WITH THE UTILIZATION
REVIEW AGENT TO IDENTIFY AN APPROPRIATE PROVIDER. UTILIZATION REVIEW
AGENTS ARE REQUIRED TO APPROVE THE USE OF OUT-OF-NETWORK PROVIDERS IF
THEY DO NOT HAVE A PARTICIPATING PROVIDER TO ADDRESS THE NEEDS OF THE
CHILD.
(5) THIS SECTION DOES NOT LIMIT ANY OTHER RIGHTS A MEDICALLY FRAGILE
CHILD MAY HAVE, INCLUDING THE RIGHT TO APPEAL THE DENIAL OF OUT OF
NETWORK COVERAGE AT IN-NETWORK COST SHARING LEVELS WHERE AN APPROPRIATE
IN-NETWORK PROVIDER IS NOT AVAILABLE PURSUANT TO SUBSECTION A-TWO OF
SECTION FOUR THOUSAND NINE HUNDRED FOUR OF THIS TITLE.
(6) UTILIZATION REVIEW AGENTS MUST ENSURE THAT MEDICALLY FRAGILE CHIL-
DREN RECEIVE SERVICES FROM APPROPRIATE PROVIDERS THAT HAVE THE EXPERTISE
TO EFFECTIVELY TREAT THE CHILD AND MUST CONTRACT WITH PROVIDERS WITH
DEMONSTRATED EXPERTISE IN CARING FOR THE MEDICALLY FRAGILE CHILDREN.
NETWORK PROVIDERS SHALL REFER TO APPROPRIATE NETWORK COMMUNITY AND
FACILITY PROVIDERS TO MEET THE NEEDS OF THE CHILD OR SEEK AUTHORIZATION
FROM THE UTILIZATION REVIEW AGENT FOR OUT-OF-NETWORK PROVIDERS WHEN
PARTICIPATING PROVIDERS CANNOT MEET THE CHILD'S NEEDS. THE UTILIZATION
REVIEW AGENT MUST AUTHORIZE SERVICES AS FAST AS THE INSURED'S CONDITION
REQUIRES AND IN ACCORDANCE WITH ESTABLISHED TIMEFRAMES IN THE CONTRACTS
OR POLICY FORMS.
(D) A UTILIZATION REVIEW AGENT SHALL HAVE A PROCEDURE BY WHICH AN
INSURED WHO IS A MEDICALLY FRAGILE CHILD WHO REQUIRES SPECIALIZED
MEDICAL CARE OVER A PROLONGED PERIOD OF TIME, MAY RECEIVE A REFERRAL TO
A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN. IF THE UTILIZA-
TION REVIEW AGENT, OR THE PRIMARY CARE PROVIDER OR THE SPECIALIST TREAT-
ING THE PATIENT, IN CONSULTATION WITH A MEDICAL DIRECTOR OF THE UTILIZA-
TION REVIEW AGENT, DETERMINES THAT THE INSURED'S CARE WOULD MOST
APPROPRIATELY BE PROVIDED BY SUCH A SPECIALTY CARE CENTER, THE UTILIZA-
TION REVIEW AGENT SHALL REFER THE INSURED TO SUCH CENTER. IN NO EVENT
SHALL A UTILIZATION REVIEW AGENT BE REQUIRED TO PERMIT AN INSURED TO
ELECT TO HAVE A NON-PARTICIPATING SPECIALTY CARE CENTER, UNLESS THE
HEALTH CARE PLAN DOES NOT HAVE AN APPROPRIATE SPECIALTY CARE CENTER TO
TREAT THE INSURED'S DISEASE OR CONDITION WITHIN ITS NETWORK. SUCH REFER-
RAL SHALL BE PURSUANT TO A TREATMENT PLAN DEVELOPED BY THE SPECIALTY
CARE CENTER AND APPROVED BY THE UTILIZATION REVIEW AGENT, IN CONSULTA-
TION WITH THE PRIMARY CARE PROVIDER, IF ANY, OR A SPECIALIST TREATING
THE PATIENT, AND THE INSURED OR THE INSURED'S DESIGNEE. IF A UTILIZATION
REVIEW AGENT REFERS AN INSURED TO A SPECIALTY CARE CENTER THAT DOES NOT
PARTICIPATE IN THE HEALTH CARE PLAN'S NETWORK, SERVICES PROVIDED PURSU-
ANT TO THE APPROVED TREATMENT PLAN SHALL BE PROVIDED AT NO ADDITIONAL
COST TO THE INSURED BEYOND WHAT THE INSURED WOULD OTHERWISE PAY FOR
SERVICES RECEIVED WITHIN THE NETWORK. FOR PURPOSES OF THIS SECTION, A
SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN SHALL MEAN A CHIL-
DREN'S HOSPITAL AS DEFINED PURSUANT TO SUBPARAGRAPH (IV) OF PARAGRAPH
(E-2) OF SUBDIVISION FOUR OF SECTION TWO THOUSAND EIGHT HUNDRED SEVEN-C
OF THE PUBLIC HEALTH LAW, A RESIDENTIAL HEALTH CARE FACILITY AFFILIATED
WITH SUCH A CHILDREN'S HOSPITAL, ANY RESIDENTIAL HEALTH CARE FACILITY
WITH A SPECIALTY PEDIATRIC BED AVERAGE DAILY CENSUS DURING TWO THOUSAND
SEVENTEEN OF FIFTY OR MORE PATIENTS, OR A FACILITY WHICH SATISFIES SUCH
OTHER CRITERIA AS THE COMMISSIONER OF HEALTH MAY DESIGNATE.
(E) WHEN RENDERING OR ARRANGING FOR CARE OR PAYMENT, BOTH THE PROVIDER
AND THE HEALTH CARE PLAN SHALL INQUIRE OF, AND SHALL CONSIDER THE
DESIRES OF, THE FAMILY OF A MEDICALLY FRAGILE CHILD INCLUDING, BUT NOT
S. 2121--B 12
LIMITED TO, THE AVAILABILITY AND CAPACITY OF THE FAMILY, THE NEED FOR
THE FAMILY TO SIMULTANEOUSLY CARE FOR THE FAMILY'S OTHER CHILDREN, AND
THE NEED FOR PARENTS TO CONTINUE EMPLOYMENT.
(F) THE HEALTH CARE PLAN MUST PAY AT LEAST EIGHTY-FIVE PERCENT (UNLESS
A DIFFERENT PERCENTAGE OR METHOD HAS BEEN MUTUALLY AGREED TO) OF THE
FACILITY'S NEGOTIATED ACUTE CARE RATE FOR ALL DAYS OF INPATIENT HOSPITAL
CARE AT A PARTICIPATING SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE
CHILDREN WHEN THE INSURER AND THE SPECIALTY CARE FACILITY MUTUALLY AGREE
THE PATIENT IS READY FOR DISCHARGE FROM THE SPECIALTY CARE CENTER TO THE
PATIENT'S HOME BUT REQUIRES SPECIALIZED HOME SERVICES THAT ARE NOT
AVAILABLE OR IN PLACE, OR THE PATIENT IS AWAITING DISCHARGE TO A RESI-
DENTIAL HEALTH CARE FACILITY WHEN NO RESIDENTIAL HEALTH CARE FACILITY
BED IS AVAILABLE GIVEN THE SPECIALIZED NEEDS OF THE MEDICALLY FRAGILE
CHILD. THE HEALTH CARE PLAN MUST PAY AT LEAST THE FACILITY'S SKILLED
NURSING MEDICAID FACILITY RATE, UNLESS A DIFFERENT RATE HAS BEEN MUTUAL-
LY NEGOTIATED, FOR ALL DAYS OF RESIDENTIAL HEALTH CARE FACILITY CARE AT
A PARTICIPATING SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN
WHEN THE INSURER AND THE SPECIALTY CARE FACILITY MUTUALLY AGREE THE
PATIENT IS READY FOR DISCHARGE FROM THE SPECIALTY CARE CENTER TO THE
PATIENT'S HOME BUT REQUIRES SPECIALIZED HOME SERVICES THAT ARE NOT
AVAILABLE OR IN PLACE. SUCH REQUIREMENTS SHALL APPLY UNTIL THE HEALTH
CARE PLAN CAN IDENTIFY AND SECURE ADMISSION TO AN ALTERNATE PROVIDER
RENDERING THE NECESSARY LEVEL OF SERVICES. THE SPECIALTY CARE CENTER
MUST COOPERATE WITH THE HEALTH CARE PLAN'S PLACEMENT EFFORTS.
(G) IN THE EVENT A HEALTH CARE PLAN ENTERS INTO A PARTICIPATION AGREE-
MENT WITH A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN IN THIS
STATE, THE REQUIREMENTS OF THIS SECTION SHALL APPLY TO THAT PARTIC-
IPATION AGREEMENT AND TO ALL CLAIMS SUBMITTED TO, OR PAYMENTS MADE BY,
ANY OTHER INSURERS, HEALTH MAINTENANCE ORGANIZATIONS OR PAYORS MAKING
PAYMENT TO THE SPECIALTY CARE CENTER PURSUANT TO THE PROVISIONS OF THAT
PARTICIPATION AGREEMENT.
(H) (1) THE SUPERINTENDENT, AFTER CONSULTING WITH THE COMMISSIONER OF
HEALTH, SHALL DESIGNATE A SINGLE SET OF CLINICAL STANDARDS APPLICABLE TO
ALL UTILIZATION REVIEW AGENTS REGARDING PEDIATRIC EXTENDED ACUTE CARE
STAYS (DEFINED FOR THE PURPOSES OF THIS SECTION AS DISCHARGE FROM ONE
ACUTE CARE HOSPITAL FOLLOWED BY IMMEDIATE ADMISSION TO A SECOND ACUTE
CARE HOSPITAL; NOT INCLUDING TRANSFERS OF CASE PAYMENT CASES AS DEFINED
IN SECTION TWO THOUSAND EIGHT HUNDRED SEVEN-C OF THE PUBLIC HEALTH LAW).
THE STANDARDS SHALL BE ADAPTED FROM NATIONAL LONG TERM ACUTE CARE HOSPI-
TAL STANDARDS FOR ADULTS AND SHALL BE APPROVED BY THE SUPERINTENDENT,
AFTER CONSULTATION WITH ONE OR MORE SPECIALTY CARE CENTERS FOR MEDICALLY
FRAGILE CHILDREN. THE STANDARDS SHALL INCLUDE, BUT NOT BE LIMITED TO,
SPECIFICATIONS OF THE LEVEL OF CARE SUPPORTS IN THE PATIENT'S HOME, AT A
SKILLED NURSING FACILITY OR OTHER SETTING, THAT MUST BE IN PLACE IN
ORDER TO SAFELY AND ADEQUATELY CARE FOR A MEDICALLY FRAGILE CHILD BEFORE
MEDICALLY COMPLEX ACUTE CARE CAN BE DEEMED NO LONGER MEDICALLY NECES-
SARY. THE STANDARDS DESIGNATED BY THE COMMISSIONER SHALL PRE-EMPT THE
CLINICAL STANDARDS, IF ANY, FOR PEDIATRIC EXTENDED ACUTE CARE SET FORTH
IN THE UTILIZATION REVIEW PLAN BY THE UTILIZATION REVIEW AGENT.
(2) THE SUPERINTENDENT, AFTER CONSULTING WITH THE COMMISSIONER OF
HEALTH, SHALL DESIGNATE A SINGLE SET OF SUPPLEMENTAL CLINICAL STANDARDS
(IN ADDITION TO THE CLINICAL STANDARDS SELECTED BY THE UTILIZATION
REVIEW AGENT) APPLICABLE TO ALL UTILIZATION REVIEW AGENTS REGARDING
ACUTE AND SUB-ACUTE INPATIENT REHABILITATION FOR MEDICALLY FRAGILE CHIL-
DREN. THE STANDARDS SHALL SPECIFY THE LEVEL OF CARE SUPPORTS IN THE
PATIENT'S HOME, AT A SKILLED NURSING FACILITY OR OTHER SETTING, THAT
S. 2121--B 13
MUST BE IN PLACE IN ORDER TO SAFELY AND ADEQUATELY CARE FOR A MEDICALLY
FRAGILE CHILD BEFORE ACUTE OR SUB-ACUTE INPATIENT REHABILITATION CAN BE
DEEMED NO LONGER MEDICALLY NECESSARY. THE SUPPLEMENTAL STANDARDS DESIG-
NATED BY THE SUPERINTENDENT SHALL PRE-EMPT THE CLINICAL STANDARDS, IF
ANY, REGARDING READINESS FOR DISCHARGE OF MEDICALLY FRAGILE CHILDREN
FROM ACUTE OR SUB-ACUTE INPATIENT REHABILITATION, AS SET FORTH IN THE
UTILIZATION REVIEW PLAN BY THE UTILIZATION REVIEW AGENT.
(I) IN ALL INSTANCES THE UTILIZATION REVIEW AGENT SHALL DEFER TO THE
RECOMMENDATIONS OF THE REFERRING PHYSICIAN TO REFER A MEDICALLY FRAGILE
CHILD FOR CARE AT A PARTICULAR SPECIALTY PROVIDER OF CARE TO MEDICALLY
FRAGILE CHILDREN, OR THE RECOMMENDED TREATMENT PLAN BY THE TREATING
PHYSICIAN AT A SPECIALTY CARE CENTER FOR MEDICALLY FRAGILE CHILDREN,
EXCEPT WHERE THE UTILIZATION REVIEW AGENT HAS DETERMINED, BY CLEAR AND
CONVINCING EVIDENCE, THAT: (1) THE RECOMMENDED PROVIDER OR PROPOSED
TREATMENT PLAN IS NOT IN THE BEST INTEREST OF THE MEDICALLY FRAGILE
CHILD; OR (2) AN ALTERNATIVE PROVIDER OFFERING SUBSTANTIALLY THE SAME
LEVEL OF CARE IN ACCORDANCE WITH SUBSTANTIALLY THE SAME TREATMENT PLAN
IS AVAILABLE FROM A LOWER COST PROVIDER.
§ 14. The insurance law is amended by adding a new section 3217-j to
read as follows:
§ 3217-J. COVERAGE FOR MEDICALLY FRAGILE CHILDREN. AN INSURER SHALL
HAVE PROCEDURES FOR COVERAGE OF MEDICALLY FRAGILE CHILDREN INCLUDING,
BUT NOT LIMITED TO, THOSE NECESSARY TO IMPLEMENT SECTION FOUR THOUSAND
NINE HUNDRED THREE-A OF THIS CHAPTER.
§ 15. The insurance law is amended by adding a new section 4306-i to
read as follows:
§ 4306-I. COVERAGE FOR MEDICALLY FRAGILE CHILDREN. A CORPORATION THAT
IS SUBJECT TO THE PROVISIONS OF THIS ARTICLE SHALL HAVE PROCEDURES FOR
COVERAGE OF MEDICALLY FRAGILE CHILDREN INCLUDING, BUT NOT LIMITED TO,
THOSE NECESSARY TO IMPLEMENT SECTION FOUR THOUSAND NINE HUNDRED THREE-A
OF THIS CHAPTER.
§ 16. Sections three, four, five, six, seven, ten, eleven, twelve,
thirteen, fourteen and fifteen of this act shall not apply to any quali-
fied health plans in the individual and small group market on and after
the date, if any, when the federal department of health and human
services determines in writing that such provisions constitute state-re-
quired benefits in addition to essential health benefits, pursuant to
the federal Affordable Care Act and regulations promulgated thereunder.
§ 17. This act shall take effect January 1, 2022.
