* § 4903-a. Utilization review determinations for medically fragile
children. 1. 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 maintenance organization, it shall be
the obligation of the health maintenance organization to comply with all
portions of this section which are not administered by the independent
utilization review agent.

2. 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 (a) 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, (b) the care or services that are essential to the overall
physical, cognitive and mental growth and developmental needs of the
child, and (c) 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.

3. Utilization review agents shall undertake the following with
respect to medically fragile children:

(a) 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. Health maintenance organizations must continue
to cover services until that child achieves age-appropriate functional
capacity. A managed care provider, authorized by section three hundred
sixty-four-j of the social services law, shall also be required to make
payment for covered services required to comply with federal Early
Periodic Screening, Diagnosis, and Treatment ("EPSDT") standards, as
specified by the commissioner of health.

(b) 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.

(c) 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.

(d) It is the utilization review agent's 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 the health maintenance organization does not
have a participating provider to address the needs of the child.

(e) This section does not limit any other rights the 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 subdivision one-b of
section forty-nine hundred four of this title.

(f) 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
enrollee's condition requires and in accordance with established
timeframes in the contracts or policy forms.

4. A health maintenance organization shall have a procedure by which
an enrollee 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 health
maintenance organization, 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 enrollee's care would most
appropriately be provided by such a specialty care center, the
organization shall refer the enrollee to such center. In no event shall
a health maintenance organization be required to permit an enrollee to
elect to have a non-participating specialty care center, unless the
organization does not have an appropriate specialty care center to treat
the enrollee'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 health maintenance organization, in
consultation with the primary care provider, if any, or a specialist
treating the patient, and the enrollee or the enrollee's designee. If an
organization refers an enrollee to a specialty care center that does not
participate in the organization's network, services provided pursuant to
the approved treatment plan shall be provided at no additional cost to
the enrollee beyond what the enrollee 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 twenty-eight hundred seven-c of this
chapter, 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 may designate.

5. When rendering or arranging for care or payment, both the provider
and the health maintenance organization 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.

6. Except in the case of Medicaid managed care, the health maintenance
organization 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 health maintenance organization 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. Medicaid managed care plans shall pay for such additional
days at a rate negotiated between the Medicaid managed care plan and the
hospital. Except in the case of Medicaid managed care, the health
maintenance organization must pay at least the facility's Medicaid
skilled nursing 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 health maintenance organization 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. Medicaid managed care plans shall
pay for such additional days at a rate negotiated between the Medicaid
managed care plan and the residential health care facility. Such
requirements shall apply until the health 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
maintenance organization's placement efforts.

7. In the event a health maintenance organization 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 such participation agreement and to all claims submitted to, or
payments made by, any other health maintenance organizations, insurers
or payors making payment to the specialty care center pursuant to the
provisions of that participation agreement.

8. (a) The commissioner 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 twenty-eight hundred seven-c of
this chapter). The standards shall be adapted from national long term
acute care hospital standards for adults and shall be approved by the
commissioner, 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.

(b) The commissioner 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 supplemental 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 commissioner 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.

9. 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: (a) the recommended provider or proposed
treatment plan is not in the best interest of the medically fragile
child, or (b) 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