§ 4903. Utilization review determinations. (a) Utilization review
shall be conducted by:

(1) Administrative personnel trained in the principles and procedures
of intake screening and data collection, provided however, that
administrative personnel shall only perform intake screening, data
collection and non-clinical review functions and shall be supervised by
a licensed health care professional;

(2) A health care professional who is appropriately trained in the
principles, procedures and standards of such utilization review agent;
provided, however, that a health care professional who is not a clinical
peer reviewer may not render an adverse determination; and

(3) A clinical peer reviewer where the review involves an adverse
determination.

(b) (1) A utilization review agent shall make a utilization review
determination involving health care services which require
pre-authorization and provide notice of a determination to the insured
or insured's designee and the insured's health care provider by
telephone and in writing within three business days of receipt of the
necessary information, 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 applicable 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.

(2) With regard to individual or group contracts authorized pursuant
to article thirty-two, forty-three or forty-seven of this chapter or
article forty-four of the public health law, for utilization and review
determinations involving proposed mental health and/or substance use
disorder services where the insured or the insured's designee has, in a
format prescribed by the superintendent, certified in the request that
the proposed services are for an individual who will be appearing, or
has appeared, before a court of competent jurisdiction and may be
subject to a court order requiring such services, the utilization review
agent shall make a determination and provide notice of such
determination to the insured or the insured's designee by telephone
within seventy-two hours of receipt of the request. Written notice of
the determination to the insured or insured's designee shall follow
within three business days. Where feasible, such telephonic and written
notice shall also be provided to the court.

(c) (1) A utilization review agent shall make a determination
involving continued or extended health care services, additional
services for an insured undergoing a course of continued treatment
prescribed by a health care provider, or requests for inpatient
substance use disorder treatment, or home health care services following
an inpatient hospital admission, and shall provide notice of such
determination to the insured or the insured's designee, which may be
satisfied by notice to the insured's health care provider, by telephone
and in writing within one business day of receipt of the necessary
information except, with respect to home health care services following
an inpatient hospital admission, within seventy-two hours of receipt of
the necessary information when the day subsequent to the request falls
on a weekend or holiday and except, with respect to inpatient substance
use disorder treatment, within twenty-four hours of receipt of the
request for services when the request is submitted at least twenty-four
hours prior to discharge from an inpatient admission. Notification of
continued or extended services shall include the number of extended
services approved, the new total of approved services, the date of onset
of services and the next review date.

(2) Provided that a request for home health care services and all
necessary information is submitted to the utilization review agent prior
to discharge from an inpatient hospital admission pursuant to this
subsection, a utilization review agent shall not deny, on the basis of
medical necessity or lack of prior authorization, coverage for home
health care services while a determination by the utilization review
agent is pending.

(3) Provided that a request for inpatient treatment for substance use
disorder is submitted to the utilization review agent at least
twenty-four hours prior to discharge from an inpatient admission
pursuant to this subsection, a utilization review agent shall not deny,
on the basis of medical necessity or lack of prior authorization,
coverage for the inpatient substance use disorder treatment while a
determination by the utilization review agent is pending.

(c-1) A utilization review agent shall grant a step therapy protocol
override determination within seventy-two hours of the receipt of
information that includes supporting rationale and documentation from a
health care professional which demonstrates that:

(1) The required prescription drug or drugs is contraindicated or will
likely cause an adverse reaction by or physical or mental harm to the
insured;

(2) The required prescription drug or drugs is expected to be
ineffective based on the known clinical history and conditions of the
insured and the insured's prescription drug regimen;

(3) The insured has tried the required prescription drug or drugs
while under their current or a previous health insurance or health
benefit plan, or another prescription drug or drugs in the same
pharmacologic class or with the same mechanism of action and such
prescription drug or drugs was discontinued due to lack of efficacy or
effectiveness, diminished effect, or an adverse event;

(4) The insured is stable on a prescription drug or drugs selected by
their health care professional for the medical condition under
consideration, provided that this shall not prevent a utilization review
agent from requiring an insured to try an AB-rated generic equivalent
prior to providing coverage for the equivalent brand name prescription
drug or drugs; or

(5) The required prescription drug or drugs is not in the best
interest of the insured because it will likely cause a significant
barrier to the insured's adherence to or compliance with the insured's
plan of care, will likely worsen a comorbid condition of the insured, or
will likely decrease the covered individual's ability to achieve or
maintain reasonable functional ability in performing daily activities.

(c-2) For an insured with a medical condition that places the health
of the insured in serious jeopardy without the prescription drug or
drugs prescribed by the insured's health care professional, the step
therapy protocol override determination shall be granted within
twenty-four hours of the receipt of information that includes supporting
rationale and documentation from a health care professional
demonstrating one or more of the standards provided for in subsection
(c-1) of this section.

(c-3) Upon a determination that the step therapy protocol should be
overridden, the health plan shall authorize immediate coverage for the
prescription drug prescribed by the insured's treating health care
professional.

(d) A utilization review agent shall make a utilization review
determination involving health care services which have been delivered
within thirty days of receipt of the necessary information.

(e) (1) Notice of an adverse determination made by a utilization
review agent shall be in writing and must include:

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

(ii) instructions on how to initiate standard appeals and expedited
appeals pursuant to section four thousand nine hundred four and an
external appeal pursuant to section four thousand nine hundred fourteen
of this article;

(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
utilization review agent.

(2) A utilization review agent may provide notice of an adverse
determination related to a step therapy protocol override determination
electronically 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.

(f) In the event that a utilization review agent renders an adverse
determination without attempting to discuss such matter with the
insured's health care provider who specifically recommended the health
care service, procedure or treatment under review, such health care
provider shall have the opportunity to request a reconsideration of the
adverse determination. Except in cases of retrospective reviews, such
reconsideration shall occur within one business day of receipt of the
request and shall be conducted by the insured's health care provider and
the clinical peer reviewer making the initial determination or a
designated clinical peer reviewer if the original clinical peer reviewer
cannot be available. In the event that the adverse determination is
upheld after reconsideration, the utilization review agent shall provide
notice as required pursuant to subsection (e) of this section. Nothing
in this section shall preclude the insured from initiating an appeal
from an adverse determination.

(g) Failure by the utilization review agent to make a determination
within the time periods prescribed in this section shall be deemed to be
an adverse determination subject to appeal pursuant to section four
thousand nine hundred four of this title, provided, however, that
failure to meet such time periods for a step therapy protocol as defined
in subsection (g-9) of section forty-nine hundred of this title or a
step therapy protocol override determination pursuant to subsections
(c-1), (c-2) and (c-3) of this section shall be deemed to be an override
of the step therapy protocol.

(h) The superintendent, in conjunction with the commissioner of
health, shall develop standards for prior authorization requests to be
utilized by all health care plans for the purposes of submitting a
request for a utilization review determination for coverage of
prescription drug benefits under this article. The department and the
department of health, in development of the standards, shall take into
consideration existing electronic prior authorization standards
including National Council for Prescription Drug Programs (NCPDP)
electronic prior authorization standard transactions.

(i) A utilization review agent shall have procedures for obtaining an
insured's, or insured's designee's, preference for receiving
notifications, which shall be in accordance with applicable federal law
and with guidance developed by the superintendent. Written and telephone
notification to an insured or the insured's designee under this section
may be provided by electronic means where the insured or the insured's
designee has informed the utilization review agent in advance of a
preference to receive such notifications by electronic means. A
utilization review agent shall permit the insured and the insured's
designee to change the preference at any time. To the extent
practicable, such written and telephone notification to the insured's
health care provider shall be transmitted electronically, in a manner
and in a form agreed upon by the parties. The utilization review agent
shall retain documentation of preferred notification methods and present
such records to the superintendent upon request.