Bill Text: NY A09098 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to enhancing coverage and care for medically fragile children.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2020-01-17 - referred to insurance [A09098 Detail]
Download: New_York-2019-A09098-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9098 IN ASSEMBLY January 17, 2020 ___________ Introduced by M. of A. GOTTFRIED -- read once and referred to the Committee on Insurance AN ACT to amend the public health law and the insurance law, in relation to enhancing coverage and care for medically fragile children The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subparagraph (iv) of paragraph (a) of subdivision 2 of 2 section 4900 of the public health law, as added by section 42 of subpart 3 A of part BB of chapter 57 of the laws of 2019, is amended and a new 4 subparagraph (v) is added to read as follows: 5 (iv) for purposes of a determination involving treatment for a mental 6 health condition: 7 (A) a physician who possesses a current and valid non-restricted 8 license to practice medicine and who specializes in behavioral health 9 and has experience in the delivery of mental health courses of treat- 10 ment; or 11 (B) a health care professional other than a licensed physician who 12 specializes in behavioral health and has experience in the delivery of a 13 mental health courses of treatment and, where applicable, possesses a 14 current and valid non-restricted license, certificate, or registration 15 or, where no provision for a license, certificate or registration 16 exists, is credentialed by the national accrediting body appropriate to 17 the profession; [and] or 18 (v) for purposes of a determination involving treatment of a medically 19 fragile child: 20 (A) a physician who possesses a current and valid non-restricted 21 license to practice medicine and who is board certified or board eligi- 22 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 23 gy; or 24 (B) a physician who possesses a current and valid non-restricted 25 license to practice medicine and is board certified in a pediatric 26 subspecialty directly relevant to the patient's medical condition; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14313-03-0A. 9098 2 1 § 2. Paragraph (b) of subdivision 2 of section 4900 of the public 2 health law, as amended by chapter 586 of the laws of 1998, is amended to 3 read as follows: 4 (b) for purposes of title two of this article: 5 (i) a physician who: 6 (A) possesses a current and valid non-restricted license to practice 7 medicine; 8 (B) where applicable, is board certified or board eligible in the same 9 or similar specialty as the health care provider who typically manages 10 the medical condition or disease or provides the health care service or 11 treatment under appeal; 12 (C) has been practicing in such area of specialty for a period of at 13 least five years; and 14 (D) is knowledgeable about the health care service or treatment under 15 appeal; or 16 (ii) a health care professional other than a licensed physician who: 17 (A) where applicable, possesses a current and valid non-restricted 18 license, certificate or registration; 19 (B) where applicable, is credentialed by the national accrediting body 20 appropriate to the profession in the same profession and same or similar 21 specialty as the health care provider who typically manages the medical 22 condition or disease or provides the health care service or treatment 23 under appeal; 24 (C) has been practicing in such area of specialty for a period of at 25 least five years; 26 (D) is knowledgeable about the health care service or treatment under 27 appeal; and 28 (E) where applicable to such health care professional's scope of prac- 29 tice, is clinically supported by a physician who possesses a current and 30 valid non-restricted license to practice medicine; or 31 (iii) for purposes of a determination involving treatment of a 32 medically fragile child: 33 (A) a physician who possesses a current and valid non-restricted 34 license to practice medicine and who is board certified or board eligi- 35 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 36 gy, or 37 (B) a physician who possesses a current and valid non-restricted 38 license to practice medicine and is board certified in a pediatric 39 subspecialty directly relevant to the patient's medical condition. 40 § 3. Subdivision 2-a of section 4900 of the public health law, as 41 added by chapter 586 of the laws of 1998, is amended to read as follows: 42 2-a. "Clinical standards" means those guidelines and standards set 43 forth in the utilization review plan by the utilization review agent 44 whose adverse determination is under appeal or, in the case of medically 45 fragile children, those guidelines and standards as required by section 46 forty-nine hundred three-a of this article. 47 § 4. Paragraph (c) of subdivision 10 of section 4900 of the public 48 health law, as added by chapter 705 of the laws of 1996, is amended to 49 read as follows: 50 (c) a description of practice guidelines and standards used by a 51 utilization review agent in carrying out a determination of medical 52 necessity, which in the case of medically fragile children shall incor- 53 porate the standards required by section forty-nine hundred three-a of 54 this article; 55 § 5. Section 4900 of the public health law is amended by adding a new 56 subdivision 11 to read as follows:A. 9098 3 1 11. "Medically fragile child" means an individual who is under twen- 2 ty-one years of age and has a chronic debilitating condition or condi- 3 tions, who may or may not be hospitalized or institutionalized, and 4 meets one or more of the following criteria (a) is technologically 5 dependent for life or health sustaining functions, (b) requires a 6 complex medication regimen or medical interventions to maintain or to 7 improve their health status, or (c) is in need of ongoing assessment or 8 intervention to prevent serious deterioration of their health status or 9 medical complications that place their life, health or development at 10 risk. Chronic debilitating conditions include, but are not limited to, 11 bronchopulmonary dysplasia, cerebral palsy, congenital heart disease, 12 microcephaly, pulmonary hypertension, and muscular dystrophy. The term 13 "medically fragile child" shall also include severe conditions, includ- 14 ing but not limited to traumatic brain injury, which typically require 15 care in a specialty care center for medically fragile children, even 16 though the child does not have a chronic debilitating condition or also 17 meet one of the three conditions of this subdivision. In order to facil- 18 itate the prompt and convenient identification of particular patient 19 care situations meeting the definitions of this subdivision, the commis- 20 sioner may issue written guidance listing (by diagnosis codes, utiliza- 21 tion thresholds, or other available coding or commonly used medical 22 classifications) the types of patient care needs which are deemed to 23 meet this definition. Notwithstanding the definitions set forth in this 24 subdivision, any patient which has received prior approval from a utili- 25 zation review agent for admission to a specialty care facility for 26 medically fragile children shall be considered a medically fragile child 27 at least until discharge from that facility occurs. 28 § 6. The public health law is amended by adding a new section 4903-a 29 to read as follows: 30 § 4903-a. Utilization review determinations for medically fragile 31 children. 1. Notwithstanding any inconsistent provision of the utiliza- 32 tion review agent's clinical standards, the utilization review agent 33 shall administer and apply the clinical standards (and make determi- 34 nations of medical necessity) regarding medically fragile children in 35 accordance with the requirements of this section. If the utilization 36 review agent is a separate entity from the health maintenance organiza- 37 tion certified under article forty-four of this chapter, the health 38 maintenance organization shall make contractual or other arrangements in 39 order to facilitate the utilization review agent's compliance with this 40 section. 41 2. In the case of a medically fragile child, the term "medically 42 necessary" shall mean health care and services that are necessary to 43 promote normal growth and development and prevent, diagnose, treat, 44 ameliorate or palliate the effects of a physical, mental, behavioral, 45 genetic, or congenital condition, injury or disability. When applied to 46 the circumstances of any particular medically fragile child, the term 47 "medically necessary" shall include (a) the care or services that are 48 essential to prevent, diagnose, prevent the worsening of, alleviate or 49 ameliorate the effects of an illness, injury, disability, disorder or 50 condition, (b) the care or services that are essential to the overall 51 physical, cognitive and mental growth and developmental needs of the 52 child, and (c) the care or services that will assist the child to 53 achieve or maintain maximum functional capacity in performing daily 54 activities, taking into account both the functional capacity of the 55 child and those functional capacities that are appropriate for individ- 56 uals of the same age as the child. The utilization review agent shallA. 9098 4 1 base its determination on medical and other relevant information 2 provided by the child's primary care provider, other health care provid- 3 ers, school, local social services, and/or local public health officials 4 that have evaluated the child, and the utilization review agent will 5 ensure the care and services are provided in sufficient amount, duration 6 and scope to reasonably be expected to produce the intended results and 7 to have the expected benefits that outweigh the potential harmful 8 effects. 9 3. Utilization review agents shall undertake the following with 10 respect to medically fragile children: 11 (a) Consider as medically necessary all covered services that assist 12 medically fragile children in reaching their maximum functional capaci- 13 ty, taking into account the appropriate functional capacities of chil- 14 dren of the same age. Health maintenance organizations must continue to 15 cover services until that child achieves age-appropriate functional 16 capacity. A managed care provider, authorized by section three hundred 17 sixty-four-j of the social services law, shall also be required to make 18 payment for covered services required to comply with federal Early Peri- 19 odic Screening, Diagnosis, and Treatment ("EPSDT") standards, as speci- 20 fied by the commissioner of health. 21 (b) Shall not base determinations solely upon review standards appli- 22 cable to (or designed for) adults to medically fragile children. Adult 23 standards include, but are not limited to, Medicare rehabilitation stan- 24 dards and the "Medicare 3 hour rule." Determinations have to take into 25 consideration the specific needs of the child and the circumstances 26 pertaining to their growth and development. 27 (c) Accommodate unusual stabilization and prolonged discharge plans 28 for medically fragile children, as appropriate. Issues utilization 29 review agents must consider when developing and approving discharge 30 plans include, but are not limited to: sudden reversals of condition or 31 progress, which may make discharge decisions uncertain or more prolonged 32 than for other children or adults; necessary training of parents or 33 other adults to care for medically fragile children at home; unusual 34 discharge delays encountered if parents or other responsible adults 35 decline or are slow to assume full responsibility for caring for 36 medically fragile children; the need to await an appropriate home or 37 home-like environment rather than discharge to a housing shelter or 38 other inappropriate setting for medically fragile children, the need to 39 await construction adaptations to the home (such as the installation of 40 generators or other equipment); and lack of available suitable special- 41 ized care (such as unavailability of pediatric nursing home beds, pedia- 42 tric ventilator units, pediatric private duty nursing in the home, or 43 specialized pediatric home care services). Utilization review agents 44 must develop a person centered discharge plan for the child taking the 45 above situations into consideration. 46 (d) It is the utilization review agent's network management responsi- 47 bility to identify an available provider of needed covered services, as 48 determined through a person centered care plan, to effect safe discharge 49 from a hospital or other facility; payments shall not be denied to a 50 discharging hospital or other facility due to lack of an available post- 51 discharge provider as long as they have worked with the utilization 52 review agent to identify an appropriate provider. Utilization review 53 agents are required to approve the use of out-of-network providers if 54 the health maintenance organization does not have a participating 55 provider to address the needs of the child.A. 9098 5 1 (e) Utilization review agents must ensure that medically fragile chil- 2 dren receive services from appropriate providers that have the expertise 3 to effectively treat the child and must contract with providers with 4 demonstrated expertise in caring for the medically fragile children. 5 Network providers shall refer to appropriate network community and 6 facility providers to meet the needs of the child or seek authorization 7 from the utilization review agent for out-of-network providers when 8 participating providers cannot meet the child's needs. The utilization 9 review agent must authorize services as fast as the enrollee's condition 10 requires and in accordance with established timeframes in the contracts 11 or policy forms. 12 4. A health maintenance organization shall have a procedure by which 13 an enrollee who is a medically fragile child who requires specialized 14 medical care over a prolonged period of time, may receive a referral to 15 a specialty care center for medically fragile children. If the health 16 maintenance organization, or the primary care provider or the specialist 17 treating the patient, in consultation with a medical director of the 18 utilization review agent, determines that the enrollee's care would most 19 appropriately be provided by such a specialty care center, the organiza- 20 tion shall refer the enrollee to such center. In no event shall a health 21 maintenance organization be required to permit an enrollee to elect to 22 have a non-participating specialty care center, unless the organization 23 does not have an appropriate specialty care center to treat the 24 enrollee's disease or condition within its network. Such referral shall 25 be pursuant to a treatment plan developed by the specialty care center 26 and approved by the health maintenance organization, in consultation 27 with the primary care provider, if any, or a specialist treating the 28 patient, and the enrollee or the enrollee's designee. If an organization 29 refers an enrollee to a specialty care center that does not participate 30 in the organization's network, services provided pursuant to the 31 approved treatment plan shall be provided at no additional cost to the 32 enrollee beyond what the enrollee would otherwise pay for services 33 received within the network. For purposes of this section, a specialty 34 care center for medically fragile children shall mean a children's 35 hospital as defined pursuant to subparagraph (iv) of paragraph (e-2) of 36 subdivision four of section twenty-eight hundred seven-c of this chap- 37 ter, a residential health care facility affiliated with such a chil- 38 dren's hospital, any residential health care facility with a specialty 39 pediatric bed average daily census during two thousand seventeen of 40 fifty or more patients, or a facility which satisfies such other crite- 41 ria as the commissioner may designate. 42 5. When rendering or arranging for care or payment, both the provider 43 and the health maintenance organization shall inquire of, and shall 44 consider the desires of the family of a medically fragile child includ- 45 ing, but not limited to, the availability and capacity of the family, 46 the need for the family to simultaneously care for the family's other 47 children, and the need for parents to continue employment. 48 6. The health maintenance organization must pay at least eighty-five 49 percent of the facility's acute care rate, unless a different rate has 50 been mutually negotiated, for all days of inpatient hospital care at a 51 specialty care center for medically fragile children when the health 52 maintenance organization and the specialty care facility mutually agree 53 the patient is ready for discharge from the specialty care center to the 54 patient's home but requires specialized home services that are not 55 available or in place, or the patient is awaiting discharge to a resi- 56 dential health care facility when no residential health care facilityA. 9098 6 1 bed is available given the specialized needs of the medically fragile 2 child. The health maintenance organization must pay at least the facili- 3 ty's Medicaid skilled nursing facility rate, unless a different rate has 4 been mutually negotiated, for all days of residential health care facil- 5 ity care at a specialty care center for medically fragile children when 6 the health maintenance organization and the specialty care facility 7 mutually agree the patient is ready for discharge from the specialty 8 care center to the patient's home but requires specialized home services 9 that are not available or in place. Such requirements shall apply until 10 the health plan can identify and secure admission to an alternate 11 provider rendering the necessary level of services. The specialty care 12 center must cooperate with the health maintenance organization's place- 13 ment efforts. 14 7. In the event a health maintenance organization enters into a 15 participation agreement with a specialty care center for medically frag- 16 ile children in this state, and the terms of that participation agree- 17 ment extend to one or more other health maintenance organizations or 18 insurers (including health maintenance organizations and insurers oper- 19 ating in other states) by virtue of affiliation with (or contracts with) 20 the health maintenance organization, the requirements of this article 21 regarding procedures for utilization review of medically fragile chil- 22 dren shall apply to those other health maintenance organizations or 23 insurers. 24 8. (a) The commissioner shall designate a single set of clinical stan- 25 dards applicable to all utilization review agents regarding pediatric 26 extended acute care stays (defined for the purposes of this section as 27 discharge from one acute care hospital followed by immediate admission 28 to a second acute care hospital; not including transfers of case payment 29 cases as defined in section twenty-eight hundred seven-c of this chap- 30 ter). The standards shall be adapted from national long term acute care 31 hospital standards for adults and shall be approved by the commissioner, 32 after consultation with one or more specialty care centers for medically 33 fragile children. The standards shall include, but not be limited to, 34 specifications of the level of care supports in the patient's home, at a 35 skilled nursing facility or other setting, that must be in place in 36 order to safely and adequately care for a medically fragile child before 37 medically complex acute care can be deemed no longer medically neces- 38 sary. The standards designated by the commissioner shall pre-empt the 39 clinical standards, if any, for pediatric extended acute care set forth 40 in the utilization review plan by the utilization review agent. 41 (b) The commissioner shall designate a single set of supplemental 42 clinical standards (in addition to the clinical standards selected by 43 the utilization review agent) applicable to all utilization review 44 agents regarding acute and sub-acute inpatient rehabilitation for 45 medically fragile children. The supplemental standards shall specify the 46 level of care supports in the patient's home, at a skilled nursing 47 facility or other setting, that must be in place in order to safely and 48 adequately care for a medically fragile child before acute or sub-acute 49 inpatient rehabilitation can be deemed no longer medically necessary. 50 The supplemental standards designated by the commissioner shall pre-empt 51 the clinical standards, if any, regarding readiness for discharge of 52 medically fragile children from acute or sub-acute inpatient rehabili- 53 tation, as set forth in the utilization review plan by the utilization 54 review agent. 55 9. In all instances the utilization review agent shall defer to the 56 recommendations of the referring physician to refer a medically fragileA. 9098 7 1 child for care at a particular specialty provider of care to medically 2 fragile children, or the recommended treatment plan by the treating 3 physician at a specialty care center for medically fragile children, 4 except where the utilization review agent has determined, by clear and 5 convincing evidence, that: (a) the recommended provider or proposed 6 treatment plan is not in the best interest of the medically fragile 7 child, or (b) an alternative provider offering substantially the same 8 level of care in accordance with substantially the same treatment plan 9 is available from a lower cost provider. 10 § 7. Subparagraph (D) of paragraph 1 of subsection (b) of section 4900 11 of the insurance law, as added by section 36 of subpart A of part BB of 12 chapter 57 of the laws of 2019, is amended and a new subparagraph (E) is 13 added to read as follows: 14 (D) for purposes of a determination involving treatment for a mental 15 health condition: 16 (i) a physician who possesses a current and valid non-restricted 17 license to practice medicine and who specializes in behavioral health 18 and has experience in the delivery of mental health courses of treat- 19 ment; or 20 (ii) a health care professional other than a licensed physician who 21 specializes in behavioral health and has experience in the delivery of 22 mental health courses of treatment and, where applicable, possesses a 23 current and valid non-restricted license, certificate, or registration 24 or, where no provision for a license, certificate or registration 25 exists, is credentialed by the national accrediting body appropriate to 26 the profession; [and] or 27 (E) for purposes of a determination involving treatment of a medically 28 fragile child: 29 (i) a physician who possesses a current and valid non-restricted 30 license to practice medicine and who is board certified or board eligi- 31 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 32 gy; or 33 (ii) a physician who possesses a current and valid non-restricted 34 license to practice medicine and is board certified in a pediatric 35 subspecialty directly relevant to the patient's medical condition; and 36 § 8. Paragraph 2 of subsection (b) of section 4900 of the insurance 37 law, as amended by chapter 586 of the laws of 1998, is amended to read 38 as follows: 39 (2) for purposes of title two of this article: 40 (A) a physician who: 41 (i) possesses a current and valid non-restricted license to practice 42 medicine; 43 (ii) where applicable, is board certified or board eligible in the 44 same or similar specialty as the health care provider who typically 45 manages the medical condition or disease or provides the health care 46 service or treatment under appeal; 47 (iii) has been practicing in such area of specialty for a period of at 48 least five years; and 49 (iv) is knowledgeable about the health care service or treatment under 50 appeal; or 51 (B) a health care professional other than a licensed physician who: 52 (i) where applicable, possesses a current and valid non-restricted 53 license, certificate or registration; 54 (ii) where applicable, is credentialed by the national accrediting 55 body appropriate to the profession in the same profession and same or 56 similar specialty as the health care provider who typically manages theA. 9098 8 1 medical condition or disease or provides the health care service or 2 treatment under appeal; 3 (iii) has been practicing in such area of specialty for a period of at 4 least five years; 5 (iv) is knowledgeable about the health care service or treatment under 6 appeal; and 7 (v) where applicable to such health care professional's scope of prac- 8 tice, is clinically supported by a physician who possesses a current and 9 valid non-restricted license to practice medicine; or 10 (C) for purposes of a determination involving treatment of a medically 11 fragile child: 12 (i) a physician who possesses a current and valid non-restricted 13 license to practice medicine and who is board certified or board eligi- 14 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 15 gy; or 16 (ii) a physician who possesses a current and valid non-restricted 17 license to practice medicine and is board certified in a pediatric 18 subspecialty directly relevant to the patient's medical condition. 19 § 9. Subsection (b-1) of section 4900 of the insurance law, as added 20 by chapter 586 of the laws of 1998, is amended to read as follows: 21 (b-1) "Clinical standards" means those guidelines and standards set 22 forth in the utilization review plan by the utilization review agent 23 whose adverse determination is under appeal or, in the case of medically 24 fragile children those guidelines and standards as required by section 25 forty-nine hundred three-a of this article. 26 § 10. Subsection (j) of section 4900 of the insurance law, as added by 27 chapter 705 of the laws of 1996, is amended to read as follows: 28 (j) "Utilization review plan" means: (1) a description of the process 29 for developing the written clinical review criteria; (2) a description 30 of the types of written clinical information which the plan might 31 consider in its clinical review, including but not limited to, a set of 32 specific written clinical review criteria; (3) a description of practice 33 guidelines and standards used by a utilization review agent in carrying 34 out a determination of medical necessity, which, in the case of 35 medically fragile children, shall incorporate the standards required by 36 section forty-nine hundred three-a of this article; (4) the procedures 37 for scheduled review and evaluation of the written clinical review 38 criteria; and (5) a description of the qualifications and experience of 39 the health care professionals who developed the criteria, who are 40 responsible for periodic evaluation of the criteria and of the health 41 care professionals or others who use the written clinical review crite- 42 ria in the process of utilization review. 43 § 11. Section 4900 of the insurance law is amended by adding a new 44 subsection (k) to read as follows: 45 (k) "Medically fragile child" means an individual who is under twen- 46 ty-one years of age and has a chronic debilitating condition or condi- 47 tions, who may or may not be hospitalized or institutionalized, and 48 meets one or more of the following criteria: (1) is technologically 49 dependent for life or health sustaining functions; (2) requires a 50 complex medication regimen or medical interventions to maintain or to 51 improve their health status; or (3) is in need of ongoing assessment or 52 intervention to prevent serious deterioration of their health status or 53 medical complications that place their life, health or development at 54 risk. Chronic debilitating conditions include, but are not limited to, 55 bronchopulmonary dysplasia, cerebral palsy, congenital heart disease, 56 microcephaly, pulmonary hypertension, and muscular dystrophy. The termA. 9098 9 1 "medically fragile child" shall also include severe conditions, includ- 2 ing but not limited to traumatic brain injury, which typically require 3 care in a specialty care center for medically fragile children, even 4 though the child does not have a chronic debilitating condition or also 5 meet one of the three conditions of this subsection. In order to facili- 6 tate the prompt and convenient identification of particular patient care 7 situations meeting the definitions of this subsection, the superinten- 8 dent, after consulting with the commissioner of health, may issue writ- 9 ten guidance listing (by diagnosis codes, utilization thresholds, or 10 other available coding or commonly used medical classifications) the 11 types of patient care needs which are deemed to meet this definition. 12 Notwithstanding the definitions set forth in this subsection, any 13 patient which has received prior approval from a utilization review 14 agent for admission to a specialty care facility for medically fragile 15 children shall be considered a medically fragile child at least until 16 discharge from that facility occurs. 17 § 12. The insurance law is amended by adding a new section 4903-a to 18 read as follows: 19 § 4903-a. Utilization review determinations for medically fragile 20 children. (a) Notwithstanding any inconsistent provision of the utiliza- 21 tion review agent's clinical standards, the utilization review agent 22 shall administer and apply the clinical standards (and make determi- 23 nations of medical necessity) regarding medically fragile children in 24 accordance with the requirements of this section. If the utilization 25 review agent is a separate entity from the health care plan, the health 26 care plan shall make contractual or other arrangements in order to 27 facilitate the utilization review agent's compliance with this section. 28 (b) In the case of a medically fragile child, the term "medically 29 necessary" shall mean health care and services that are necessary to 30 promote normal growth and development and prevent, diagnose, treat, 31 ameliorate or palliate the effects of a physical, mental, behavioral, 32 genetic, or congenital condition, injury or disability. When applied to 33 the circumstances of any particular medically fragile child, the term 34 "medically necessary" shall include: (1) the care or services that are 35 essential to prevent, diagnose, prevent the worsening of, alleviate or 36 ameliorate the effects of an illness, injury, disability, disorder or 37 condition; (2) the care or services that are essential to the overall 38 physical, cognitive and mental growth and developmental needs of the 39 child; and (3) the care or services that will assist the child to 40 achieve or maintain maximum functional capacity in performing daily 41 activities, taking into account both the functional capacity of the 42 child and those functional capacities that are appropriate for individ- 43 uals of the same age as the child. The utilization review agent shall 44 base its determination on medical and other relevant information 45 provided by the child's primary care provider, other health care provid- 46 ers, school, local social services, and/or local public health officials 47 that have evaluated the child, and the utilization review agent will 48 ensure the care and services are provided in sufficient amount, duration 49 and scope to reasonably be expected to produce the intended results and 50 to have the expected benefits that outweigh the potential harmful 51 effects. 52 (c) Utilization review agents shall undertake the following with 53 respect to medically fragile children: 54 (1) Consider as medically necessary all covered services that assist 55 medically fragile children in reaching their maximum functional capaci- 56 ty, taking into account the appropriate functional capacities of chil-A. 9098 10 1 dren of the same age. Utilization review agents must continue to cover 2 services until that child achieves age-appropriate functional capacity. 3 (2) Shall not base determinations solely upon review standards appli- 4 cable to (or designed for) adults to medically fragile children. Adult 5 standards include, but are not limited to, Medicare rehabilitation stan- 6 dards and the "Medicare 3 hour rule." Determinations have to take into 7 consideration the specific needs of the child and the circumstances 8 pertaining to their growth and development. 9 (3) Accommodate unusual stabilization and prolonged discharge plans 10 for medically fragile children, as appropriate. Area utilization review 11 agents must consider when developing and approving discharge plans 12 include, but are not limited to: sudden reversals of condition or 13 progress, which may make discharge decisions uncertain or more prolonged 14 than for other children or adults; necessary training of parents or 15 other adults to care for medically fragile children at home; unusual 16 discharge delays encountered if parents or other responsible adults 17 decline or are slow to assume full responsibility for caring for 18 medically fragile children; the need to await an appropriate home or 19 home-like environment rather than discharge to a housing shelter or 20 other inappropriate setting for medically fragile children, the need to 21 await construction adaptations to the home (such as the installation of 22 generators or other equipment); and lack of available suitable special- 23 ized care (such as unavailability of pediatric nursing home beds, pedia- 24 tric ventilator units, pediatric private duty nursing in the home, or 25 specialized pediatric home care services). Utilization review agents 26 must develop a person centered discharge plan for the child taking the 27 above situations into consideration. 28 (4) It is the utilization review agents network management responsi- 29 bility to identify an available provider of needed covered services, as 30 determined through a person centered care plan, to effect safe discharge 31 from a hospital or other facility; payments shall not be denied to a 32 discharging hospital or other facility due to lack of an available post- 33 discharge provider as long as they have worked with the utilization 34 review agent to identify an appropriate provider. Utilization review 35 agents are required to approve the use of out-of-network providers if 36 they do not have a participating provider to address the needs of the 37 child. 38 (5) Utilization review agents must ensure that medically fragile chil- 39 dren receive services from appropriate providers that have the expertise 40 to effectively treat the child and must contract with providers with 41 demonstrated expertise in caring for the medically fragile children. 42 Network providers shall refer to appropriate network community and 43 facility providers to meet the needs of the child or seek authorization 44 from the utilization review agent for out-of-network providers when 45 participating providers cannot meet the child's needs. The utilization 46 review agent must authorize services as fast as the insured's condition 47 requires and in accordance with established timeframes in the contracts 48 or policy forms. 49 (d) A utilization review agent shall have a procedure by which an 50 insured who is a medically fragile child who requires specialized 51 medical care over a prolonged period of time, may receive a referral to 52 a specialty care center for medically fragile children. If the utiliza- 53 tion review agent, or the primary care provider or the specialist treat- 54 ing the patient, in consultation with a medical director of the utiliza- 55 tion review agent, determines that the insured's care would most 56 appropriately be provided by such a specialty care center, the utiliza-A. 9098 11 1 tion review agent shall refer the insured to such center. In no event 2 shall a utilization review agent be required to permit an insured to 3 elect to have a non-participating specialty care center, unless the 4 health care plan does not have an appropriate specialty care center to 5 treat the insured's disease or condition within its network. Such refer- 6 ral shall be pursuant to a treatment plan developed by the specialty 7 care center and approved by the utilization review agent, in consulta- 8 tion with the primary care provider, if any, or a specialist treating 9 the patient, and the insured or the insured's designee. If a utilization 10 review agent refers an insured to a specialty care center that does not 11 participate in the health care plan's network, services provided pursu- 12 ant to the approved treatment plan shall be provided at no additional 13 cost to the insured beyond what the insured would otherwise pay for 14 services received within the network. For purposes of this section, a 15 specialty care center for medically fragile children shall mean a chil- 16 dren's hospital as defined pursuant to subparagraph (iv) of paragraph 17 (e-2) of subdivision four of section two thousand eight hundred seven-c 18 of the public health law, a residential health care facility affiliated 19 with such a children's hospital, any residential health care facility 20 with a specialty pediatric bed average daily census during two thousand 21 seventeen of fifty or more patients, or a facility which satisfies such 22 other criteria as the commissioner of health may designate. 23 (e) When rendering or arranging for care or payment, both the provider 24 and the health care plan shall inquire of, and shall consider the 25 desires of, the family of a medically fragile child including, but not 26 limited to, the availability and capacity of the family, the need for 27 the family to simultaneously care for the family's other children, and 28 the need for parents to continue employment. 29 (f) The health care plan must pay at least eighty-five percent of the 30 facility's acute care rate, unless a different rate has been mutually 31 negotiated, for all days of inpatient hospital care at a specialty care 32 center for medically fragile children when the insurer and the specialty 33 care facility mutually agree the patient is ready for discharge from the 34 specialty care center to the patient's home but requires specialized 35 home services that are not available or in place, or the patient is 36 awaiting discharge to a residential health care facility when no resi- 37 dential health care facility bed is available given the specialized 38 needs of the medically fragile child. The health care plan must pay at 39 least the facility's skilled nursing Medicaid facility rate, unless a 40 different rate has been mutually negotiated, for all days of residential 41 health care facility care at a specialty care center for medically frag- 42 ile children when the insurer and the specialty care facility mutually 43 agree the patient is ready for discharge from the specialty care center 44 to the patient's home but requires specialized home services that are 45 not available or in place. Such requirements shall apply until the 46 health care plan can identify and secure admission to an alternate 47 provider rendering the necessary level of services. The specialty care 48 center must cooperate with the health care plan's placement efforts. 49 (g) In the event a health care plan enters into a participation agree- 50 ment with a specialty care center for medically fragile children in this 51 state, and the terms of that participation agreement extend to one or 52 more other health care plans or insurers (including health care plans 53 and insurers operating in other states) by virtue of affiliation with 54 (or contracts with) the health care plan, the requirements of this 55 section regarding procedures for utilization review of medically fragile 56 children shall apply to those other health care plans or insurers.A. 9098 12 1 (h) (1) The superintendent, after consulting with the commissioner of 2 health, shall designate a single set of clinical standards applicable to 3 all utilization review agents regarding pediatric extended acute care 4 stays (defined for the purposes of this section as discharge from one 5 acute care hospital followed by immediate admission to a second acute 6 care hospital; not including transfers of case payment cases as defined 7 in section two thousand eight hundred seven-c of the public health law). 8 The standards shall be adapted from national long term acute care hospi- 9 tal standards for adults and shall be approved by the superintendent, 10 after consultation with one or more specialty care centers for medically 11 fragile children. The standards shall include, but not be limited to, 12 specifications of the level of care supports in the patient's home, at a 13 skilled nursing facility or other setting, that must be in place in 14 order to safely and adequately care for a medically fragile child before 15 medically complex acute care can be deemed no longer medically neces- 16 sary. The standards designated by the commissioner shall pre-empt the 17 clinical standards, if any, for pediatric extended acute care set forth 18 in the utilization review plan by the utilization review agent. 19 (2) The superintendent, after consulting with the commissioner of 20 health, shall designate a single set of supplemental clinical standards 21 (in addition to the clinical standards selected by the utilization 22 review agent) applicable to all utilization review agents regarding 23 acute and sub-acute inpatient rehabilitation for medically fragile chil- 24 dren. The standards shall specify the level of care supports in the 25 patient's home, at a skilled nursing facility or other setting, that 26 must be in place in order to safely and adequately care for a medically 27 fragile child before acute or sub-acute inpatient rehabilitation can be 28 deemed no longer medically necessary. The supplemental standards desig- 29 nated by the superintendent shall pre-empt the clinical standards, if 30 any, regarding readiness for discharge of medically fragile children 31 from acute or sub-acute inpatient rehabilitation, as set forth in the 32 utilization review plan by the utilization review agent. 33 (i) In all instances the utilization review agent shall defer to the 34 recommendations of the referring physician to refer a medically fragile 35 child for care at a particular specialty provider of care to medically 36 fragile children, or the recommended treatment plan by the treating 37 physician at a specialty care center for medically fragile children, 38 except where the utilization review agent has determined, by clear and 39 convincing evidence, that: (1) the recommended provider or proposed 40 treatment plan is not in the best interest of the medically fragile 41 child; or (2) an alternative provider offering substantially the same 42 level of care in accordance with substantially the same treatment plan 43 is available from a lower cost provider. 44 § 13. This act shall take effect January 1, 2021.
