§ 4902. Utilization review program standards. (a) Each utilization
review agent shall adhere to utilization review program standards
consistent with the provisions of this title which shall, at a minimum,
include:

(1) Appointment of a medical director, who is a licensed physician;
provided, however, that the utilization review agent may appoint a
clinical director when the utilization review performed is for a
discrete category of health care service and provided further that the
clinical director is a licensed health care professional who typically
manages the category of service. Responsibilities of the medical
director, or, where appropriate, the clinical director, shall include,
but not be limited to, the supervision and oversight of the utilization
review process;

(2) Development of written policies and procedures that govern all
aspects of the utilization review process and a requirement that a
utilization review agent shall maintain and make available to insureds
and health care providers a written description of such procedures
including procedures to appeal an adverse determination together with a
description, jointly promulgated by the superintendent and the
commissioner of health as required pursuant to subsection (e) of section
four thousand nine hundred fourteen of this article, of the external
appeal process established pursuant to title two of this article and the
time frames for such appeals;

(3) Utilization of written clinical review criteria developed pursuant
to a utilization review plan;

(4) Establishment of a process for rendering utilization review
determinations which shall, at a minimum, include: written procedures to
assure that utilization reviews and determinations are conducted within
the timeframes established herein; procedures to notify an insured, an
insured's designee and/or an insured's health care provider of adverse
determinations; and procedures for appeal of adverse determinations
including the establishment of an expedited appeals process for denials
of continued inpatient care or where there is imminent or serious threat
to the health of the insured;

(5) (i) Establishment of a written procedure to assure that the notice
of an adverse determination includes:

(A) the reasons for the determination including the clinical
rationale, if any;

(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; (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
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
information posted on the website of the health care plan;

(6) Establishment of a requirement that appropriate personnel of the
utilization review agent are reasonably accessible by toll-free
telephone:

(i) not less than forty hours per week during normal business hours to
discuss patient care and allow response to telephone requests, and to
ensure that such utilization review agent has a telephone system capable
of accepting, recording or providing instruction to incoming telephone
calls during other than normal business hours and to ensure response to
accepted or recorded messages not less than one business day after the
date on which the call was received; or

(ii) notwithstanding the provisions of subparagraph (i) of this
paragraph, not less than forty hours per week during normal business
hours, to discuss patient care and allow response to telephone requests,
and to ensure that, in the case of a request submitted pursuant to
subsection (a) of section four thousand nine hundred three of this title
or an expedited appeal filed pursuant to subsection (b) of section four
thousand nine hundred four of this title, on a twenty-four hour a day,
seven day a week basis;

(7) Establishment of appropriate policies and procedures to ensure
that all applicable state and federal laws to protect the
confidentiality of individual medical records are followed;

(8) Establishment of a requirement that emergency services rendered to
an insured shall not be subject to prior authorization nor shall
reimbursement for such services be denied on retrospective review;
provided, however, that such services are medically necessary to
stabilize or treat an emergency condition.

(9) When conducting utilization review for purposes of determining
health care coverage for substance use disorder treatment, a utilization
review agent shall utilize an evidence-based and peer reviewed clinical
review tool that is appropriate to the age of the patient. When
conducting such utilization review for treatment provided in this state,
a utilization review agent shall utilize an evidence-based and peer
reviewed clinical tool designated by the office of alcoholism and
substance abuse services that is consistent with the treatment service
levels within the office of alcoholism and substance abuse services
system. All approved tools shall have inter rater reliability testing
completed by December thirty-first, two thousand sixteen.

10. When establishing a step therapy protocol, a utilization review
agent shall utilize recognized evidence-based and peer reviewed clinical
review criteria that also takes into account the needs of atypical
patient populations and diagnoses when establishing the clinical review
criteria.

11. When conducting utilization review for a step therapy protocol
override determination, a utilization review agent shall utilize, in
addition to any other requirements of this article, recognized
evidence-based and peer reviewed clinical review criteria that is
appropriate for the insured and the insured's medical condition.

(12) When conducting utilization review for purposes of determining
health care coverage for a mental health condition, a utilization review
agent shall utilize evidence-based and peer reviewed clinical review
criteria that is appropriate to the age of the patient. The utilization
review agent shall use clinical review criteria deemed appropriate and
approved for such use by the commissioner of the office of mental
health, in consultation with the commissioner of health and the
superintendent. Approved clinical review criteria shall have inter rater
reliability testing completed by December thirty-first, two thousand
nineteen.

(13) Establishment of a requirement that emergency department and
inpatient hospital services rendered by a general hospital certified
pursuant to article twenty-eight of the public health law to an insured
to treat COVID-19 during a declared state disaster emergency related to
COVID-19 shall not be denied on retrospective review on the basis that
such services were not medically necessary.

(14) The superintendent, in consultation with the commissioner of
health, may, as necessary, promulgate by regulation special
considerations and processes for utilization review related to medically
fragile children. Such regulations may include, at a minimum,
considerations and processes related to:

(i) medically necessary covered services to medically fragile
children;

(ii) determinations specific to the needs of medically fragile
children;

(iii) stabilization and discharge plans; and

(iv) payment for the care of medically fragile children.

(b) Each utilization review agent shall assure adherence to the
requirements stated in subsection (a) of this section by all
contractors, subcontractors, subvendors, agents and employees affiliated
by contract or otherwise with such utilization review agent.