Amd §§4902 & 4903, add §4909, Pub Health L; amd §§4902, 4903 & 3238, add §4909, Ins L
 
Relates to utilization review program standards; requires use of evidence-based and peer reviewed clinical review criteria; amends provisions relating to prescription drug formulary changes and pre-authorization for certain health care services.
STATE OF NEW YORK
________________________________________________________________________
2847
2019-2020 Regular Sessions
IN SENATE
January 29, 2019
___________
Introduced by Sens. BRESLIN, AKSHAR, COMRIE, FUNKE, GALLIVAN, HOYLMAN,
ORTT, ROBACH, SEPULVEDA -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law and the insurance law, in relation
to utilization review program standards and prescription drug formu-
lary changes during a contract year, and in relation to pre-authoriza-
tion of health care services
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (c) of subdivision 1 of section 4902 of the
2 public health law, as added by chapter 705 of the laws of 1996, is
3 amended to read as follows:
4 (c) Utilization of written clinical review criteria developed pursuant
5 to a utilization review plan. Such clinical review criteria shall
6 utilize recognized evidence-based and peer reviewed clinical review
7 criteria that takes into account the needs of a typical patient popu-
8 lations and diagnoses;
9 § 2. Paragraph (a) of subdivision 2 of section 4903 of the public
10 health law, as amended by chapter 371 of the laws of 2015, is amended to
11 read as follows:
12 (a) A utilization review agent shall make a utilization review deter-
13 mination involving health care services which require pre-authorization
14 and provide notice of a determination to the enrollee or enrollee's
15 designee and the enrollee's health care provider by telephone and in
16 writing within [three business days] forty-eight hours of receipt of the
17 necessary information, or within twenty-four hours of the receipt of
18 necessary information if the request is for an enrollee with a medical
19 condition that places the health of the insured in serious jeopardy
20 without the health care services recommended by the enrollee's health
21 care professional. To the extent practicable, such written notification
22 to the enrollee's health care provider shall be transmitted electron-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03798-02-9
S. 2847 2
1 ically, in a manner and in a form agreed upon by the parties. The
2 notification shall identify; (i) whether the services are considered
3 in-network or out-of-network; (ii) and whether the enrollee will be held
4 harmless for the services and not be responsible for any payment, other
5 than any applicable co-payment or co-insurance; (iii) as applicable, the
6 dollar amount the health care plan will pay if the service is out-of-
7 network; and (iv) as applicable, information explaining how an enrollee
8 may determine the anticipated out-of-pocket cost for out-of-network
9 health care services in a geographical area or zip code based upon the
10 difference between what the health care plan will reimburse for out-of-
11 network health care services and the usual and customary cost for out-
12 of-network health care services. An approval for a request for pre-au-
13 thorization shall be valid for the duration of the prescription or
14 treatment as requested by the enrollee's health care provider.
15 § 3. The public health law is amended by adding a new section 4909 to
16 read as follows:
17 § 4909. Prescription drug formulary changes. 1. A health care plan
18 required to provide essential health benefits shall not, except as
19 otherwise provided in subdivision two of this section, remove a
20 prescription drug from a formulary:
21 (a) if the formulary includes two or more tiers of benefits providing
22 for different deductibles, copayments or coinsurance applicable to the
23 prescription drugs in each tier, move a drug to a tier with a larger
24 deductible, copayment or coinsurance, or
25 (b) add utilization management restrictions to a formulary drug,
26 unless such changes occur at the time of enrollment or issuance of
27 coverage. Such prohibition shall apply beginning on the date on which
28 open enrollment begins for a plan year and through the end of the plan
29 year to which such open enrollment period applies.
30 2. (a) A health care plan with a formulary that includes two or more
31 tiers of benefits providing for different deductibles, copayments or
32 coinsurance applicable to prescription drugs in each tier may move a
33 prescription drug to a tier with a larger deducible, copayment or coin-
34 surance if an AB-rated generic drug for such prescription drug is added
35 to the formulary at the same time.
36 (b) A health care plan may remove a prescription drug from a formulary
37 if the federal food and drug administration determines that such drug
38 should be removed from the market.
39 § 4. Paragraph 3 of subsection (a) of section 4902 of the insurance
40 law, as added by chapter 705 of the laws of 1996, is amended to read as
41 follows:
42 (3) Utilization of written clinical review criteria developed pursuant
43 to a utilization review plan. Such clinical review criteria shall
44 utilize recognized evidence-based and peer reviewed clinical review
45 criteria that takes into account the needs of a typical patient popu-
46 lations and diagnoses;
47 § 5. Paragraph 1 of subsection (b) of section 4903 of the insurance
48 law, as amended by chapter 371 of the laws of 2015, is amended to read
49 as follows:
50 (1) A utilization review agent shall make a utilization review deter-
51 mination involving health care services which require pre-authorization
52 and provide notice of a determination to the insured or insured's desig-
53 nee and the insured's health care provider by telephone and in writing
54 within [three business days] forty-eight hours of receipt of the neces-
55 sary information, or within twenty-four hours of the receipt of neces-
56 sary information if the request is for an insured with a medical condi-
S. 2847 3
1 tion that places the health of the insured in serious jeopardy without
2 the health care services recommended by the insured's health care
3 provider. To the extent practicable, such written notification to the
4 enrollee's health care provider shall be transmitted electronically, in
5 a manner and in a form agreed upon by the parties. The notification
6 shall identify: (i) whether the services are considered in-network or
7 out-of-network; (ii) whether the insured will be held harmless for the
8 services and not be responsible for any payment, other than any applica-
9 ble co-payment, co-insurance or deductible; (iii) as applicable, the
10 dollar amount the health care plan will pay if the service is out-of-
11 network; and (iv) as applicable, information explaining how an insured
12 may determine the anticipated out-of-pocket cost for out-of-network
13 health care services in a geographical area or zip code based upon the
14 difference between what the health care plan will reimburse for out-of-
15 network health care services and the usual and customary cost for out-
16 of-network health care services. An approval of request for pre-author-
17 ization shall be valid for the duration of the prescription or treatment
18 requested for pre-authorization.
19 § 6. The insurance law is amended by adding a new section 4909 to read
20 as follows:
21 § 4909. Prescription drug formulary changes. (a) A health care plan
22 required to provide essential health benefits shall not, except as
23 otherwise provided in subsection (b) of this section, remove a
24 prescription drug from a formulary:
25 (i) if the formulary includes two or more tiers of benefits providing
26 for different deductibles, copayments or coinsurance applicable to the
27 prescription drugs in each tier, move a drug to a tier with a larger
28 deductible, copayment or coinsurance, or
29 (ii) add utilization management restrictions to a formulary drug,
30 unless such changes occur at the time of enrollment or issuance of
31 coverage. Such prohibition shall apply beginning on the date on which
32 open enrollment begins for a plan year and through the end of the plan
33 year to which such open enrollment period applies.
34 (b) (i) A health care plan with a formulary that includes two or more
35 tiers of benefits providing for different deductibles, copayments or
36 coinsurance applicable to prescription drugs in each tier may move a
37 prescription drug to a tier with a larger deducible, copayment or coin-
38 surance if an AB-rated generic drug for such prescription drug is added
39 to the formulary at the same time.
40 (ii) A health care plan may remove a prescription drug from a formu-
41 lary if the federal food and drug administration determines that such
42 drug should be removed from the market.
43 § 7. Subsection (a) of section 3238 of the insurance law, as added by
44 chapter 451 of the laws of 2007, is amended to read as follows:
45 (a) An insurer, corporation organized pursuant to article forty-three
46 of this chapter, municipal cooperative health benefits plan certified
47 pursuant to article forty-seven of this chapter, or health maintenance
48 organization and other organizations certified pursuant to article
49 forty-four of the public health law ("health plan") shall pay claims for
50 a health care service for which a pre-authorization was required by, and
51 received from, the health plan prior to the rendering of such health
52 care service, and eligibility confirmed on the day of the service,
53 unless:
54 (1) [(i) the insured, subscriber, or enrollee was not a covered person
55 at the time the health care service was rendered.
S. 2847 4
1 (ii) Notwithstanding the provisions of subparagraph (i) of this para-
2 graph, a health plan shall not deny a claim on this basis if the
3 insured's, subscriber's or enrollee's coverage was retroactively termi-
4 nated more than one hundred twenty days after the date of the health
5 care service, provided that the claim is submitted within ninety days
6 after the date of the health care service. If the claim is submitted
7 more than ninety days after the date of the health care service, the
8 health plan shall have thirty days after the claim is received to deny
9 the claim on the basis that the insured, subscriber or enrollee was not
10 a covered person on the date of the health care service.
11 (2)] the submission of the claim with respect to an insured, subscrib-
12 er or enrollee was not timely under the terms of the applicable provider
13 contract, if the claim is submitted by a provider, or the policy or
14 contract, if the claim is submitted by the insured, subscriber or enrol-
15 lee;
16 [(3)] (2) at the time the pre-authorization was issued, the insured,
17 subscriber or enrollee had not exhausted contract or policy benefit
18 limitations based on information available to the health plan at such
19 time, but subsequently exhausted contract or policy benefit limitations
20 after authorization was issued; provided, however, that the health plan
21 shall include in the notice of determination required pursuant to
22 subsection (b) of section four thousand nine hundred three of this chap-
23 ter and subdivision two of section forty-nine hundred three of the
24 public health law that the visits authorized might exceed the limits of
25 the contract or policy and accordingly would not be covered under the
26 contract or policy;
27 [(4)] (3) the pre-authorization was based on materially inaccurate or
28 incomplete information provided by the insured, subscriber or enrollee,
29 the designee of the insured, subscriber or enrollee, or the health care
30 provider such that if the correct or complete information had been
31 provided, such pre-authorization would not have been granted; or
32 [(5) the pre-authorized service was related to a pre-existing condi-
33 tion that was excluded from coverage; or
34 (6)] (4) there is a reasonable basis supported by specific information
35 available for review by the superintendent that the insured, subscriber
36 or enrollee, the designee of the insured, subscriber or enrollee, or the
37 health care provider has engaged in fraud or abuse.
38 § 8. This act shall take effect on the ninetieth day after it shall
39 have become a law.