§ 4909. Site of service clinical review. 1. For purposes of this
section:

(a) "Free-standing ambulatory surgical center" shall mean a diagnostic
and treatment center authorized pursuant to article twenty-eight of this
chapter and operated independently from a hospital.

(b) "Health care plan" shall mean an insurer, a corporation organized
pursuant to article forty-three of the insurance law, a health
maintenance organization certified pursuant to article forty-four of
this chapter, a municipal cooperative health benefit plan certified
pursuant to article forty-seven of the insurance law, and a student
health plan established or maintained pursuant to section one thousand
one hundred twenty-four of the insurance law, that issues a health
insurance policy or contract or that arranges for care and services for
members under a contract with the department with a network of health
care providers and utilizes site of service clinical review to determine
coverage for services delivered by network participating providers.

(c) "Hospital-based outpatient clinic" shall mean a clinic authorized
pursuant to article twenty-eight of this chapter and listed on a
hospital's operating certificate.

(d) "Site of service clinical review" shall mean clinical criteria
applied by a health care plan for the purpose of determining whether
non-urgent outpatient medical procedures and surgeries will be covered
for a given insured or enrollee when rendered by a network participating
provider at a hospital-based outpatient clinic rather than a
free-standing ambulatory surgical center.

2. Site of service clinical review shall be deemed utilization review
in accordance with and subject to the requirements and protections of
this article and article forty-nine of the insurance law, including the
right to internal and external appeal of denials related to site of
service clinical review.

3. Site of service clinical review shall consider the insured's health
and safety, choice of health care provider, and timely access to care
and shall not be based solely on cost.

4. A health care plan that utilizes site of service clinical review
that is intended to direct insureds and enrollees to free-standing
ambulatory surgical centers shall be able to demonstrate to the
department that it has an adequate network of free-standing ambulatory
surgical center providers to meet the health needs of insureds and
enrollees and to provide an appropriate choice of providers sufficient
to render the services covered under the policy or contract. Such
network shall be in compliance with network adequacy standards
established by the commissioner and article forty-four of this chapter.

5. Except as provided in subdivision seven of this section, starting
January first, two thousand twenty-four, a health care plan that
utilizes a site of service clinical review shall deliver a notice
disclosing and clearly explaining the site of service clinical review
to:

(a) policyholders, contract holders, insureds, and enrollees and
prospective policyholders, contract holders, insureds, and enrollees at
the time of plan and policy or contract selection and at least ninety
days prior to the implementation of new site of service clinical review
or modification of existing site of service clinical review. Such notice
shall include the specific services under the site of service review
policy, a statement that site of service clinical review may limit the
settings in which services covered under the policy or contract may be
provided and render a network participating provider unable to perform a
service; shall disclose to insureds or enrollees any quality or cost
differential, including differences in out-of-pocket costs, between the
hospital-based outpatient clinic and the free-standing ambulatory
surgical center when services at a hospital-based outpatient clinic are
requested; and shall set forth any rights the insured or enrollee may
have to obtain the service at a hospital-based outpatient clinic through
a utilization review appeal. Notifications shall also be made at any
other time upon the insured's or enrollee's request;

(b) network participating providers at least ninety days prior to
implementation. A health care plan shall also inform providers of the
process for requesting coverage of a service in a hospital-based
outpatient clinic setting, including the right to request a real time
clinical peer to peer discussion as part of the authorization process;
and

(c) the commissioner, at least forty-five days prior to notifying
policyholders, contract holders, insureds and enrollees and prospective
policyholders, contract holders, insureds and enrollees and network
participating providers in accordance with this subdivision. Such notice
to the commissioner shall include (i) draft communications to the
foregoing persons for purposes of complying with this subdivision and
(ii) an explanation of how the site of service clinical review selected
by the health care plan complies with this article and article
forty-nine of the insurance law.

6. A health care plan's provider directory shall explain that even
though a provider is participating in the network, a site of service
clinical review may affect where services will need to be obtained and
whether the provider will be available to provide such service, as
applicable.

7. A health care plan that has implemented site of service clinical
review prior to January first, two thousand twenty-four that is not in
compliance with this section shall revise such site of service clinical
review to comply with this section and deliver the notices required
under subdivision five of this section at the beginning of the open
enrollment period for individual health insurance policies and
contracts, and for group health insurance policies and contracts, prior
to January first, two thousand twenty-four.

8. Starting January first, two thousand twenty-four, at a minimum, a
health care plan shall approve a request for authorization for a service
covered under the policy or contract and requested to be performed by a
network participating provider at a hospital-based outpatient clinic in
the following situations:

(a) the procedure cannot be safely performed in a free-standing
ambulatory surgical center due to the insured's or enrollee's health
condition;

(b) there is no free-standing ambulatory surgical center capacity in
the insured's or enrollee's geographic area; or

(c) the provision of health care services at a free-standing
ambulatory surgical center would result in undue delay.

9. Starting January first, two thousand twenty-four, site of service
clinical review criteria developed by health care plans shall also take
into consideration whether:

(a) the insured's or enrollee's treating network participating
provider recommends, based on a written clinical justification submitted
to the health care plan, that the service be provided at a
hospital-based outpatient clinic; or

(b) the insured or enrollee has requested a particular network
participating provider who performs the requested service in a
hospital-based outpatient clinic because the insured or enrollee is
undergoing a continuing course of treatment with the participating
provider or because the insured has previously obtained the requested
service from the participating provider, and the provider is not
credentialed at any free-standing ambulatory surgical center in the
service area and is not able to be credentialed within ninety days
following the submission of the authorization request to the health care
plan.