S T A T E   O F   N E W   Y O R K
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                                   9149
 
                           I N  A S S E M B L Y
 
                             February 8, 2024
                                ___________
 
 Introduced by M. of A. HUNTER -- read once and referred to the Committee
   on Insurance
 
 AN  ACT to amend the insurance law, in relation to the use of artificial
   intelligence for utilization review
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The insurance law is amended by adding a new section 338 to
 read as follows:
   §  338.  NOTIFICATION REGARDING THE USE OF ARTIFICIAL INTELLIGENCE FOR
 UTILIZATION REVIEW. (A) AS USED IN THIS  SECTION,  THE  FOLLOWING  TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   (1)  "ADVERSE  DETERMINATION" SHALL HAVE THE SAME MEANING AS SUCH TERM
 IS DEFINED IN SECTION FOUR THOUSAND NINE HUNDRED OF  THE  PUBLIC  HEALTH
 LAW.
   (2)  "ARTIFICIAL  INTELLIGENCE-BASED  ALGORITHM"  MEANS ANY ARTIFICIAL
 SYSTEM THAT PERFORMS TASKS UNDER VARYING AND UNPREDICTABLE CIRCUMSTANCES
 WITHOUT SIGNIFICANT HUMAN OVERSIGHT OR THAT CAN  LEARN  FROM  EXPERIENCE
 AND IMPROVE PERFORMANCE WHEN EXPOSED TO DATA SETS.
   (3)  "CLINICAL PEER REVIEWER" SHALL HAVE THE SAME MEANING AS SUCH TERM
 IS DEFINED IN SECTION FOUR THOUSAND NINE HUNDRED OF  THE  PUBLIC  HEALTH
 LAW.
   (4)  "UTILIZATION  REVIEW" SHALL HAVE THE SAME MEANING AS SUCH TERM IS
 DEFINED IN SECTION FORTY-NINE HUNDRED OF THE PUBLIC HEALTH LAW.
   (B) THE SUPERINTENDENT SHALL REQUIRE ALL INSURERS AUTHORIZED TO  WRITE
 ACCIDENT  AND  HEALTH  INSURANCE  IN  THIS STATE, CORPORATIONS ORGANIZED
 PURSUANT TO ARTICLE FORTY-THREE OF THIS CHAPTER, AND  A  HEALTH  MAINTE-
 NANCE  ORGANIZATION  CERTIFIED  PURSUANT  TO  ARTICLE  FORTY-FOUR OF THE
 PUBLIC HEALTH LAW TO NOTIFY INSUREDS AND ENROLLEES ABOUT THE USE OR LACK
 OF USE OF ARTIFICIAL INTELLIGENCE-BASED ALGORITHMS  IN  THE  UTILIZATION
 REVIEW  PROCESS  ON  THE  ACCESSIBLE  INTERNET  WEBSITE  OF SUCH INSURER
 AUTHORIZED TO WRITE ACCIDENT AND HEALTH INSURANCE IN THIS STATE,  CORPO-
 RATION  ORGANIZED  PURSUANT  TO  ARTICLE FORTY-THREE OF THIS CHAPTER, OR
 HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR
 OF THE PUBLIC HEALTH LAW.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14269-01-4
 A. 9149                             2
 
   (C) EVERY INSURER AUTHORIZED TO WRITE ACCIDENT AND HEALTH INSURANCE IN
 THIS STATE, CORPORATION ORGANIZED PURSUANT  TO  ARTICLE  FORTY-THREE  OF
 THIS  CHAPTER, AND HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO
 ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL SUBMIT THE  ARTIFICIAL
 INTELLIGENCE-BASED ALGORITHMS AND TRAINING DATA SETS THAT ARE BEING USED
 OR WILL BE USED IN THE UTILIZATION REVIEW PROCESS TO THE DEPARTMENT. THE
 DEPARTMENT  SHALL  IMPLEMENT  A  PROCESS  THAT  ALLOWS THE DEPARTMENT TO
 CERTIFY THAT THESE ARTIFICIAL INTELLIGENCE-BASED ALGORITHMS AND TRAINING
 DATA SETS HAVE MINIMIZED THE RISK OF BIAS BASED ON THE COVERED  PERSON'S
 RACE,  COLOR,  RELIGIOUS  CREED,  ANCESTRY,  AGE,  SEX, GENDER, NATIONAL
 ORIGIN, HANDICAP OR DISABILITY AND  ADHERE  TO  EVIDENCE-BASED  CLINICAL
 GUIDELINES.
   (D)  A CLINICAL PEER REVIEWER WHO PARTICIPATES IN A UTILIZATION REVIEW
 PROCESS FOR AN INSURER AUTHORIZED TO WRITE ACCIDENT AND HEALTH INSURANCE
 IN THIS STATE, A CORPORATION ORGANIZED PURSUANT TO  ARTICLE  FORTY-THREE
 OF  THIS CHAPTER, AND A HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSU-
 ANT TO ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW THAT  INITIALLY  USES
 ARTIFICIAL  INTELLIGENCE-BASED ALGORITHMS FOR A UTILIZATION REVIEW SHALL
 OPEN AND DOCUMENT THE UTILIZATION  REVIEW  OF  THE  INDIVIDUAL  CLINICAL
 RECORDS OR DATA PRIOR TO ISSUING AN ADVERSE DETERMINATION.
   (E) (1) A VIOLATION OF THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT
 TO  ONE  OR  MORE  OF  THE  FOLLOWING PENALTIES AT THE DISCRETION OF THE
 SUPERINTENDENT, IN CONSULTATION WITH THE COMMISSIONER OF HEALTH AND  THE
 COMMISSIONER OF EDUCATION AS APPLICABLE:
   (I)  WHERE A VIOLATION IS MADE BY AN INSURER AUTHORIZED TO WRITE ACCI-
 DENT AND HEALTH INSURANCE IN THIS STATE, A CORPORATION ORGANIZED  PURSU-
 ANT  TO  ARTICLE  FORTY-THREE  OF  THIS CHAPTER, OR A HEALTH MAINTENANCE
 ORGANIZATION CERTIFIED PURSUANT TO  ARTICLE  FORTY-FOUR  OF  THE  PUBLIC
 HEALTH LAW:
   (A) SUSPENSION OR REVOCATION OF LICENSE;
   (B)  REFUSAL,  FOR  A  PERIOD  NOT  TO EXCEED ONE YEAR, TO ISSUE A NEW
 LICENSE;
   (C) A FINE OF NOT MORE THAN $5,000 FOR EACH VIOLATION OF THIS SECTION;
 OR
   (D) A FINE OF NOT MORE THAN $10,000 FOR EACH WILLFUL VIOLATION OF THIS
 SECTION.
   FINES IMPOSED PURSUANT TO THE PROVISIONS OF  THIS  SUBPARAGRAPH  ON  A
 SINGLE INSURER AUTHORIZED TO WRITE ACCIDENT AND HEALTH INSURANCE IN THIS
 STATE,  A  CORPORATION ORGANIZED PURSUANT TO ARTICLE FORTY-THREE OF THIS
 CHAPTER, OR A HEALTH  MAINTENANCE  ORGANIZATION  CERTIFIED  PURSUANT  TO
 ARTICLE  FORTY-FOUR  OF  THE  PUBLIC  HEALTH  LAW  SHALL NOT EXCEED FIVE
 HUNDRED THOUSAND DOLLARS IN AGGREGATE DURING A CALENDAR YEAR.
   (II) WHERE A VIOLATION IS MADE BY A CLINICAL PEER REVIEWER:
   (A) SUSPENSION OR REVOCATION OF LICENSE;
   (B) REFUSAL, FOR A PERIOD NOT TO EXCEED  ONE  YEAR,  TO  ISSUE  A  NEW
 LICENSE;
   (C) A FINE OF NOT MORE THAN $5,000 FOR EACH VIOLATION OF THIS SECTION;
 OR
   (D) A FINE OF NOT MORE THAN $10,000 FOR EACH WILLFUL VIOLATION OF THIS
 SECTION.
   FINES  IMPOSED  PURSUANT  TO  THE PROVISIONS OF THIS SUBPARAGRAPH ON A
 SINGLE CLINICAL PEER REVIEWER SHALL  NOT  EXCEED  ONE  HUNDRED  THOUSAND
 DOLLARS IN AGGREGATE DURING A CALENDAR YEAR.
   (2)  PENALTIES  PURSUANT TO THE PROVISIONS OF THIS SUBSECTION SHALL BE
 IN ADDITION TO ANY OTHER REMEDIES OR PENALTIES THAT MAY BE IMPOSED UNDER
 ANY OTHER APPLICABLE LAW.
 A. 9149                             3
 
   (F) THE SUPERINTENDENT SHALL  PROMULGATE  ALL  RULES  AND  REGULATIONS
 NECESSARY FOR THE IMPLEMENTATION OF THIS SECTION.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such effective date.