§ 4903. Utilization review determinations. 1. Utilization review shall
be conducted by:

(a) 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;

(b) 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

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

2. (a) 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 enrollee
or enrollee's designee and the enrollee'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) and whether
the enrollee will be held harmless for the services and not be
responsible for any payment, other than any applicable co-payment or
co-insurance; (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 enrollee 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.

(b) With regard to individual or group contracts authorized pursuant
to article forty-four of this chapter, for utilization review
determinations involving proposed mental health and/or substance use
disorder services where the enrollee or the enrollee's designee has, in
a format prescribed by the superintendent of financial services,
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 enrollee or the
enrollee's designee by telephone within seventy-two hours of receipt of
the request. Written notice of the determination to the enrollee or
enrollee's designee shall follow within three business days. Where
feasible, such telephonic and written notice shall also be provided to
the court.

3. (a) A utilization review agent shall make a determination involving
continued or extended health care services, additional services for an
enrollee 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
enrollee or the enrollee's designee, which may be satisfied by notice to
the enrollee'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.

(b) 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
subdivision, 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.

(c) 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 subdivision, 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.

3-a. 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:

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

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

(c) The enrollee 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;

(d) The enrollee 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

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

3-b. For an enrollee 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 subdivision
three-a of this section.

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

4. 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.

5. (a) 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 and expedited appeals
pursuant to section forty-nine hundred four and an external appeal
pursuant to section forty-nine hundred fourteen of this article;

(iii) notice of the availability, upon request of the enrollee, or the
enrollee'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.

(b) A utilization review agent may provide notice of an adverse
determination related to a step therapy protocol override determination
electronically pursuant to subdivision nine 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 (a) of this
subdivision by linking to information posted on the website of the
health care plan.

6. In the event that a utilization review agent renders an adverse
determination without attempting to discuss such matter with the
enrollee'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 enrollee'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 subdivision five of this section. Nothing
in this section shall preclude the enrollee from initiating an appeal
from an adverse determination.

7. 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
forty-nine hundred four of this title, provided, however, that failure
to meet such time periods for a step therapy protocol as defined in
subdivision seven-f-three of section forty-nine hundred of this title or
a step therapy protocol override determination pursuant to subdivisions
three-a, three-b and three-c of this section shall be deemed to be an
override of the step therapy protocol.

8. The commissioner, in conjunction with the superintendent of
financial services, 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 financial services, 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.

9. A utilization review agent shall have procedures for obtaining an
enrollee's, or enrollee's designee's, preference for receiving
notifications, which shall be in accordance with applicable federal law
and with guidance developed by the commissioner. Written and telephone
notification to an enrollee or the enrollee's designee under this
section may be provided by electronic means where the enrollee or the
enrollee's designee has informed the organization in advance of
preference to receive such notifications by electronic means. An
organization shall permit the enrollee and the enrollee's designee to
change the preference at any time. To the extent practicable, such
written and telephone notification to the enrollee'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 commissioner upon request.