* § 4903-a. Utilization review determinations for medically fragile
children. (a) Notwithstanding any inconsistent provision of the
utilization review agent's clinical standards, the utilization review
agent shall administer and apply the clinical standards (and make
determinations 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,
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
individuals 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
providers, 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
capacity, taking into account the appropriate functional capacities of
children 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
applicable to (or designed for) adults to medically fragile children.
Adult standards include, but are not limited to, Medicare rehabilitation
standards 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
specialized care (such as unavailability of pediatric nursing home beds,
pediatric 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
responsibility to identify an available provider of needed covered
services, as determined through a person centered care plan, to effect
safe discharge 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
children 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
utilization review agent, 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 insured's care would most
appropriately be provided by such a specialty care center, the
utilization 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
referral shall be pursuant to a treatment plan developed by the
specialty care center and approved by the utilization review agent, in
consultation 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 pursuant 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 children'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
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
residential 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
mutually 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
agreement with a specialty care center for medically fragile children in
this state, the requirements of this section shall apply to that
participation 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
hospital 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 necessary. 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
children. The 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 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.

* NB Effective and Repealed September 1, 2023