Bill Text: NY S02121 | 2021-2022 | General Assembly | Amended
Bill Title: Relates to enhancing coverage and care for medically fragile children; requires that health plans adopt policies and procedures tailored to the unique healthcare needs of this population.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Engrossed - Dead) 2022-03-22 - SUBSTITUTED BY A289C [S02121 Detail]
Download: New_York-2021-S02121-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2121--C 2021-2022 Regular Sessions IN SENATE January 19, 2021 ___________ Introduced by Sens. RIVERA, BRESLIN, HARCKHAM, JACKSON, MAYER, SAVINO, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- reported favorably from said committee, ordered to first report, amended on first report, ordered to a second report and ordered reprinted, retaining its place in the order of second report -- reported favorably from said committee, second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- recom- mitted to the Committee on Health in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00514-10-1S. 2121--C 2 1 exists, is credentialed by the national accrediting body appropriate to 2 the profession; [and] or 3 (v) for purposes of a determination involving treatment of a medically 4 fragile child: 5 (A) a physician who possesses a current and valid non-restricted 6 license to practice medicine and who is board certified or board eligi- 7 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 8 gy; or 9 (B) a physician who possesses a current and valid non-restricted 10 license to practice medicine and is board certified in a pediatric 11 subspecialty directly relevant to the patient's medical condition; and 12 § 2. Paragraph (b) of subdivision 2 of section 4900 of the public 13 health law, as amended by chapter 586 of the laws of 1998, is amended to 14 read as follows: 15 (b) for purposes of title two of this article: 16 (i) a physician who: 17 (A) possesses a current and valid non-restricted license to practice 18 medicine; 19 (B) where applicable, is board certified or board eligible in the same 20 or similar specialty as the health care provider who typically manages 21 the medical condition or disease or provides the health care service or 22 treatment under appeal; 23 (C) has been practicing in such area of specialty for a period of at 24 least five years; and 25 (D) is knowledgeable about the health care service or treatment under 26 appeal; or 27 (ii) a health care professional other than a licensed physician who: 28 (A) where applicable, possesses a current and valid non-restricted 29 license, certificate or registration; 30 (B) where applicable, is credentialed by the national accrediting body 31 appropriate to the profession in the same profession and same or similar 32 specialty as the health care provider who typically manages the medical 33 condition or disease or provides the health care service or treatment 34 under appeal; 35 (C) has been practicing in such area of specialty for a period of at 36 least five years; 37 (D) is knowledgeable about the health care service or treatment under 38 appeal; and 39 (E) where applicable to such health care professional's scope of prac- 40 tice, is clinically supported by a physician who possesses a current and 41 valid non-restricted license to practice medicine; or 42 (iii) for purposes of a determination involving treatment of a 43 medically fragile child: 44 (A) a physician who possesses a current and valid non-restricted 45 license to practice medicine and who is board certified or board eligi- 46 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 47 gy, or 48 (B) a physician who possesses a current and valid non-restricted 49 license to practice medicine and is board certified in a pediatric 50 subspecialty directly relevant to the patient's medical condition. 51 § 3. Subdivision 2-a of section 4900 of the public health law, as 52 added by chapter 586 of the laws of 1998, is amended to read as follows: 53 2-a. "Clinical standards" means those guidelines and standards set 54 forth in the utilization review plan by the utilization review agent 55 whose adverse determination is under appeal or, in the case of medicallyS. 2121--C 3 1 fragile children, those guidelines and standards as required by section 2 forty-nine hundred three-a of this article. 3 § 4. Paragraph (c) of subdivision 10 of section 4900 of the public 4 health law, as added by chapter 705 of the laws of 1996, is amended to 5 read as follows: 6 (c) a description of practice guidelines and standards used by a 7 utilization review agent in carrying out a determination of medical 8 necessity, which in the case of medically fragile children shall incor- 9 porate the standards required by section forty-nine hundred three-a of 10 this article; 11 § 5. Section 4900 of the public health law is amended by adding a new 12 subdivision 11 to read as follows: 13 11. "Medically fragile child" means an individual who is under twen- 14 ty-one years of age and has a chronic debilitating condition or condi- 15 tions, who may or may not be hospitalized or institutionalized, and 16 meets one or more of the following criteria (a) is technologically 17 dependent for life or health sustaining functions, (b) requires a 18 complex medication regimen or medical interventions to maintain or to 19 improve their health status, or (c) is in need of ongoing assessment or 20 intervention to prevent serious deterioration of their health status or 21 medical complications that place their life, health or development at 22 risk. Chronic debilitating conditions include, but are not limited to, 23 bronchopulmonary dysplasia, cerebral palsy, congenital heart disease, 24 microcephaly, pulmonary hypertension, and muscular dystrophy. The term 25 "medically fragile child" shall also include severe conditions, includ- 26 ing but not limited to traumatic brain injury, which typically require 27 care in a specialty care center for medically fragile children, even 28 though the child does not have a chronic debilitating condition or also 29 meet one of the three conditions of this subdivision. In order to facil- 30 itate the prompt and convenient identification of particular patient 31 care situations meeting the definitions of this subdivision, the commis- 32 sioner may issue written guidance listing (by diagnosis codes, utiliza- 33 tion thresholds, or other available coding or commonly used medical 34 classifications) the types of patient care needs which are deemed to 35 meet this definition. Notwithstanding the definitions set forth in this 36 subdivision, any patient which has received prior approval from a utili- 37 zation review agent for admission to a specialty care facility for 38 medically fragile children shall be considered a medically fragile child 39 at least until discharge from that facility occurs. 40 § 6. The public health law is amended by adding a new section 4903-a 41 to read as follows: 42 § 4903-a. Utilization review determinations for medically fragile 43 children. 1. Notwithstanding any inconsistent provision of the utiliza- 44 tion review agent's clinical standards, the utilization review agent 45 shall administer and apply the clinical standards (and make determi- 46 nations of medical necessity) regarding medically fragile children in 47 accordance with the requirements of this section. To the extent any of 48 the requirements of this section impose obligations which extend beyond 49 the contracted role of any independent utilization review agent under 50 contract with a health maintenance organization, it shall be the obli- 51 gation of the health maintenance organization to comply with all 52 portions of this section which are not administered by the independent 53 utilization review agent. 54 2. In the case of a medically fragile child, the term "medically 55 necessary" shall mean health care and services that are necessary to 56 promote normal growth and development and prevent, diagnose, treat,S. 2121--C 4 1 ameliorate or palliate the effects of a physical, mental, behavioral, 2 genetic, or congenital condition, injury or disability. When applied to 3 the circumstances of any particular medically fragile child, the term 4 "medically necessary" shall include (a) the care or services that are 5 essential to prevent, diagnose, prevent the worsening of, alleviate or 6 ameliorate the effects of an illness, injury, disability, disorder or 7 condition, (b) the care or services that are essential to the overall 8 physical, cognitive and mental growth and developmental needs of the 9 child, and (c) the care or services that will assist the child to 10 achieve or maintain maximum functional capacity in performing daily 11 activities, taking into account both the functional capacity of the 12 child and those functional capacities that are appropriate for individ- 13 uals of the same age as the child. The utilization review agent shall 14 base its determination on medical and other relevant information 15 provided by the child's primary care provider, other health care provid- 16 ers, school, local social services, and/or local public health officials 17 that have evaluated the child, and the utilization review agent will 18 ensure the care and services are provided in sufficient amount, duration 19 and scope to reasonably be expected to produce the intended results and 20 to have the expected benefits that outweigh the potential harmful 21 effects. 22 3. Utilization review agents shall undertake the following with 23 respect to medically fragile children: 24 (a) Consider as medically necessary all covered services that assist 25 medically fragile children in reaching their maximum functional capaci- 26 ty, taking into account the appropriate functional capacities of chil- 27 dren of the same age. Health maintenance organizations must continue to 28 cover services until that child achieves age-appropriate functional 29 capacity. A managed care provider, authorized by section three hundred 30 sixty-four-j of the social services law, shall also be required to make 31 payment for covered services required to comply with federal Early Peri- 32 odic Screening, Diagnosis, and Treatment ("EPSDT") standards, as speci- 33 fied by the commissioner of health. 34 (b) Shall not base determinations solely upon review standards appli- 35 cable to (or designed for) adults to medically fragile children. Adult 36 standards include, but are not limited to, Medicare rehabilitation stan- 37 dards and the "Medicare 3 hour rule." Determinations have to take into 38 consideration the specific needs of the child and the circumstances 39 pertaining to their growth and development. 40 (c) Accommodate unusual stabilization and prolonged discharge plans 41 for medically fragile children, as appropriate. Issues utilization 42 review agents must consider when developing and approving discharge 43 plans include, but are not limited to: sudden reversals of condition or 44 progress, which may make discharge decisions uncertain or more prolonged 45 than for other children or adults; necessary training of parents or 46 other adults to care for medically fragile children at home; unusual 47 discharge delays encountered if parents or other responsible adults 48 decline or are slow to assume full responsibility for caring for 49 medically fragile children; the need to await an appropriate home or 50 home-like environment rather than discharge to a housing shelter or 51 other inappropriate setting for medically fragile children, the need to 52 await construction adaptations to the home (such as the installation of 53 generators or other equipment); and lack of available suitable special- 54 ized care (such as unavailability of pediatric nursing home beds, pedia- 55 tric ventilator units, pediatric private duty nursing in the home, or 56 specialized pediatric home care services). Utilization review agentsS. 2121--C 5 1 must develop a person centered discharge plan for the child taking the 2 above situations into consideration. 3 (d) It is the utilization review agent's network management responsi- 4 bility to identify an available provider of needed covered services, as 5 determined through a person centered care plan, to effect safe discharge 6 from a hospital or other facility; payments shall not be denied to a 7 discharging hospital or other facility due to lack of an available post- 8 discharge provider as long as they have worked with the utilization 9 review agent to identify an appropriate provider. Utilization review 10 agents are required to approve the use of out-of-network providers if 11 the health maintenance organization does not have a participating 12 provider to address the needs of the child. 13 (e) This section does not limit any other rights the medically fragile 14 child may have, including the right to appeal the denial of out of 15 network coverage at in-network cost sharing levels where an appropriate 16 in-network provider is not available pursuant to subdivision one-b of 17 section forty-nine hundred four of this title. 18 (f) Utilization review agents must ensure that medically fragile chil- 19 dren receive services from appropriate providers that have the expertise 20 to effectively treat the child and must contract with providers with 21 demonstrated expertise in caring for the medically fragile children. 22 Network providers shall refer to appropriate network community and 23 facility providers to meet the needs of the child or seek authorization 24 from the utilization review agent for out-of-network providers when 25 participating providers cannot meet the child's needs. The utilization 26 review agent must authorize services as fast as the enrollee's condition 27 requires and in accordance with established timeframes in the contracts 28 or policy forms. 29 4. A health maintenance organization shall have a procedure by which 30 an enrollee who is a medically fragile child who requires specialized 31 medical care over a prolonged period of time, may receive a referral to 32 a specialty care center for medically fragile children. If the health 33 maintenance organization, or the primary care provider or the specialist 34 treating the patient, in consultation with a medical director of the 35 utilization review agent, determines that the enrollee's care would most 36 appropriately be provided by such a specialty care center, the organiza- 37 tion shall refer the enrollee to such center. In no event shall a health 38 maintenance organization be required to permit an enrollee to elect to 39 have a non-participating specialty care center, unless the organization 40 does not have an appropriate specialty care center to treat the 41 enrollee's disease or condition within its network. Such referral shall 42 be pursuant to a treatment plan developed by the specialty care center 43 and approved by the health maintenance organization, in consultation 44 with the primary care provider, if any, or a specialist treating the 45 patient, and the enrollee or the enrollee's designee. If an organization 46 refers an enrollee to a specialty care center that does not participate 47 in the organization's network, services provided pursuant to the 48 approved treatment plan shall be provided at no additional cost to the 49 enrollee beyond what the enrollee would otherwise pay for services 50 received within the network. For purposes of this section, a specialty 51 care center for medically fragile children shall mean a children's 52 hospital as defined pursuant to subparagraph (iv) of paragraph (e-2) of 53 subdivision four of section twenty-eight hundred seven-c of this chap- 54 ter, a residential health care facility affiliated with such a chil- 55 dren's hospital, any residential health care facility with a specialty 56 pediatric bed average daily census during two thousand seventeen ofS. 2121--C 6 1 fifty or more patients, or a facility which satisfies such other crite- 2 ria as the commissioner may designate. 3 5. When rendering or arranging for care or payment, both the provider 4 and the health maintenance organization shall inquire of, and shall 5 consider the desires of the family of a medically fragile child includ- 6 ing, but not limited to, the availability and capacity of the family, 7 the need for the family to simultaneously care for the family's other 8 children, and the need for parents to continue employment. 9 6. Except in the case of Medicaid managed care, the health maintenance 10 organization must pay at least eighty-five percent (unless a different 11 percentage or method has been mutually agreed to) of the facility's 12 negotiated acute care rate for all days of inpatient hospital care at a 13 participating specialty care center for medically fragile children when 14 the health maintenance organization and the specialty care facility 15 mutually agree the patient is ready for discharge from the specialty 16 care center to the patient's home but requires specialized home services 17 that are not available or in place, or the patient is awaiting discharge 18 to a residential health care facility when no residential health care 19 facility bed is available given the specialized needs of the medically 20 fragile child. Medicaid managed care plans shall pay for such additional 21 days at a rate negotiated between the Medicaid managed care plan and the 22 hospital. Except in the case of Medicaid managed care, the health main- 23 tenance organization must pay at least the facility's Medicaid skilled 24 nursing facility rate, unless a different rate has been mutually negoti- 25 ated, for all days of residential health care facility care at a partic- 26 ipating specialty care center for medically fragile children when the 27 health maintenance organization and the specialty care facility mutually 28 agree the patient is ready for discharge from the specialty care center 29 to the patient's home but requires specialized home services that are 30 not available or in place. Medicaid managed care plans shall pay for 31 such additional days at a rate negotiated between the Medicaid managed 32 care plan and the residential health care facility. Such requirements 33 shall apply until the health plan can identify and secure admission to 34 an alternate provider rendering the necessary level of services. The 35 specialty care center must cooperate with the health maintenance organ- 36 ization's placement efforts. 37 7. In the event a health maintenance organization enters into a 38 participation agreement with a specialty care center for medically frag- 39 ile children in this state, the requirements of this section shall apply 40 to such participation agreement and to all claims submitted to, or 41 payments made by, any other health maintenance organizations, insurers 42 or payors making payment to the specialty care center pursuant to the 43 provisions of that participation agreement. 44 8. (a) The commissioner shall designate a single set of clinical stan- 45 dards applicable to all utilization review agents regarding pediatric 46 extended acute care stays (defined for the purposes of this section as 47 discharge from one acute care hospital followed by immediate admission 48 to a second acute care hospital; not including transfers of case payment 49 cases as defined in section twenty-eight hundred seven-c of this chap- 50 ter). The standards shall be adapted from national long term acute care 51 hospital standards for adults and shall be approved by the commissioner, 52 after consultation with one or more specialty care centers for medically 53 fragile children. The standards shall include, but not be limited to, 54 specifications of the level of care supports in the patient's home, at a 55 skilled nursing facility or other setting, that must be in place in 56 order to safely and adequately care for a medically fragile child beforeS. 2121--C 7 1 medically complex acute care can be deemed no longer medically neces- 2 sary. The standards designated by the commissioner shall pre-empt the 3 clinical standards, if any, for pediatric extended acute care set forth 4 in the utilization review plan by the utilization review agent. 5 (b) The commissioner shall designate a single set of supplemental 6 clinical standards (in addition to the clinical standards selected by 7 the utilization review agent) applicable to all utilization review 8 agents regarding acute and sub-acute inpatient rehabilitation for 9 medically fragile children. The supplemental standards shall specify the 10 level of care supports in the patient's home, at a skilled nursing 11 facility or other setting, that must be in place in order to safely and 12 adequately care for a medically fragile child before acute or sub-acute 13 inpatient rehabilitation can be deemed no longer medically necessary. 14 The supplemental standards designated by the commissioner shall pre-empt 15 the clinical standards, if any, regarding readiness for discharge of 16 medically fragile children from acute or sub-acute inpatient rehabili- 17 tation, as set forth in the utilization review plan by the utilization 18 review agent. 19 9. In all instances the utilization review agent shall defer to the 20 recommendations of the referring physician to refer a medically fragile 21 child for care at a particular specialty provider of care to medically 22 fragile children, or the recommended treatment plan by the treating 23 physician at a specialty care center for medically fragile children, 24 except where the utilization review agent has determined, by clear and 25 convincing evidence, that: (a) the recommended provider or proposed 26 treatment plan is not in the best interest of the medically fragile 27 child, or (b) an alternative provider offering substantially the same 28 level of care in accordance with substantially the same treatment plan 29 is available from a lower cost provider. 30 § 7. Section 4403 of the public health law is amended by adding a new 31 subdivision 9 to read as follows: 32 9. A health maintenance organization shall have procedures for cover- 33 age of medically fragile children including, but not limited to, those 34 necessary to implement section forty-nine hundred three-a of this arti- 35 cle. 36 § 8. Subparagraph (D) of paragraph 1 of subsection (b) of section 4900 37 of the insurance law, as added by section 36 of subpart A of part BB of 38 chapter 57 of the laws of 2019, is amended and a new subparagraph (E) is 39 added to read as follows: 40 (D) for purposes of a determination involving treatment for a mental 41 health condition: 42 (i) a physician who possesses a current and valid non-restricted 43 license to practice medicine and who specializes in behavioral health 44 and has experience in the delivery of mental health courses of treat- 45 ment; or 46 (ii) a health care professional other than a licensed physician who 47 specializes in behavioral health and has experience in the delivery of 48 mental health courses of treatment and, where applicable, possesses a 49 current and valid non-restricted license, certificate, or registration 50 or, where no provision for a license, certificate or registration 51 exists, is credentialed by the national accrediting body appropriate to 52 the profession; [and] or 53 (E) for purposes of a determination involving treatment of a medically 54 fragile child: 55 (i) a physician who possesses a current and valid non-restricted 56 license to practice medicine and who is board certified or board eligi-S. 2121--C 8 1 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 2 gy; or 3 (ii) a physician who possesses a current and valid non-restricted 4 license to practice medicine and is board certified in a pediatric 5 subspecialty directly relevant to the patient's medical condition; and 6 § 9. Paragraph 2 of subsection (b) of section 4900 of the insurance 7 law, as amended by chapter 586 of the laws of 1998, is amended to read 8 as follows: 9 (2) for purposes of title two of this article: 10 (A) a physician who: 11 (i) possesses a current and valid non-restricted license to practice 12 medicine; 13 (ii) where applicable, is board certified or board eligible in the 14 same or similar specialty as the health care provider who typically 15 manages the medical condition or disease or provides the health care 16 service or treatment under appeal; 17 (iii) has been practicing in such area of specialty for a period of at 18 least five years; and 19 (iv) is knowledgeable about the health care service or treatment under 20 appeal; or 21 (B) a health care professional other than a licensed physician who: 22 (i) where applicable, possesses a current and valid non-restricted 23 license, certificate or registration; 24 (ii) where applicable, is credentialed by the national accrediting 25 body appropriate to the profession in the same profession and same or 26 similar specialty as the health care provider who typically manages the 27 medical condition or disease or provides the health care service or 28 treatment under appeal; 29 (iii) has been practicing in such area of specialty for a period of at 30 least five years; 31 (iv) is knowledgeable about the health care service or treatment under 32 appeal; and 33 (v) where applicable to such health care professional's scope of prac- 34 tice, is clinically supported by a physician who possesses a current and 35 valid non-restricted license to practice medicine; or 36 (C) for purposes of a determination involving treatment of a medically 37 fragile child: 38 (i) a physician who possesses a current and valid non-restricted 39 license to practice medicine and who is board certified or board eligi- 40 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 41 gy; or 42 (ii) a physician who possesses a current and valid non-restricted 43 license to practice medicine and is board certified in a pediatric 44 subspecialty directly relevant to the patient's medical condition. 45 § 10. Subsection (b-1) of section 4900 of the insurance law, as added 46 by chapter 586 of the laws of 1998, is amended to read as follows: 47 (b-1) "Clinical standards" means those guidelines and standards set 48 forth in the utilization review plan by the utilization review agent 49 whose adverse determination is under appeal or, in the case of medically 50 fragile children those guidelines and standards as required by section 51 forty-nine hundred three-a of this article. 52 § 11. Subsection (j) of section 4900 of the insurance law, as added by 53 chapter 705 of the laws of 1996, is amended to read as follows: 54 (j) "Utilization review plan" means: (1) a description of the process 55 for developing the written clinical review criteria; (2) a description 56 of the types of written clinical information which the plan mightS. 2121--C 9 1 consider in its clinical review, including but not limited to, a set of 2 specific written clinical review criteria; (3) a description of practice 3 guidelines and standards used by a utilization review agent in carrying 4 out a determination of medical necessity, which, in the case of 5 medically fragile children, shall incorporate the standards required by 6 section forty-nine hundred three-a of this article; (4) the procedures 7 for scheduled review and evaluation of the written clinical review 8 criteria; and (5) a description of the qualifications and experience of 9 the health care professionals who developed the criteria, who are 10 responsible for periodic evaluation of the criteria and of the health 11 care professionals or others who use the written clinical review crite- 12 ria in the process of utilization review. 13 § 12. Section 4900 of the insurance law is amended by adding a new 14 subsection (k) to read as follows: 15 (k) "Medically fragile child" means an individual who is under twen- 16 ty-one years of age and has a chronic debilitating condition or condi- 17 tions, who may or may not be hospitalized or institutionalized, and 18 meets one or more of the following criteria: (1) is technologically 19 dependent for life or health sustaining functions; (2) requires a 20 complex medication regimen or medical interventions to maintain or to 21 improve their health status; or (3) is in need of ongoing assessment or 22 intervention to prevent serious deterioration of their health status or 23 medical complications that place their life, health or development at 24 risk. Chronic debilitating conditions include, but are not limited to, 25 bronchopulmonary dysplasia, cerebral palsy, congenital heart disease, 26 microcephaly, pulmonary hypertension, and muscular dystrophy. The term 27 "medically fragile child" shall also include severe conditions, includ- 28 ing but not limited to traumatic brain injury, which typically require 29 care in a specialty care center for medically fragile children, even 30 though the child does not have a chronic debilitating condition or also 31 meet one of the three conditions of this subsection. In order to facili- 32 tate the prompt and convenient identification of particular patient care 33 situations meeting the definitions of this subsection, the superinten- 34 dent, after consulting with the commissioner of health, may issue writ- 35 ten guidance listing (by diagnosis codes, utilization thresholds, or 36 other available coding or commonly used medical classifications) the 37 types of patient care needs which are deemed to meet this definition. 38 Notwithstanding the definitions set forth in this subsection, any 39 patient which has received prior approval from a utilization review 40 agent for admission to a specialty care facility for medically fragile 41 children shall be considered a medically fragile child at least until 42 discharge from that facility occurs. 43 § 13. The insurance law is amended by adding a new section 4903-a to 44 read as follows: 45 § 4903-a. Utilization review determinations for medically fragile 46 children. (a) Notwithstanding any inconsistent provision of the utiliza- 47 tion review agent's clinical standards, the utilization review agent 48 shall administer and apply the clinical standards (and make determi- 49 nations of medical necessity) regarding medically fragile children in 50 accordance with the requirements of this section. To the extent any of 51 the requirements of this section impose obligations which extend beyond 52 the contracted role of any independent utilization review agent under 53 contract with a health care plan, it shall be the obligation of the 54 health care plan to comply with all portions of this section which are 55 not administered by the independent utilization review agent.S. 2121--C 10 1 (b) In the case of a medically fragile child, the term "medically 2 necessary" shall mean health care and services that are necessary to 3 promote normal growth and development and prevent, diagnose, treat, 4 ameliorate or palliate the effects of a physical, mental, behavioral, 5 genetic, or congenital condition, injury or disability. When applied to 6 the circumstances of any particular medically fragile child, the term 7 "medically necessary" shall include: (1) the care or services that are 8 essential to prevent, diagnose, prevent the worsening of, alleviate or 9 ameliorate the effects of an illness, injury, disability, disorder or 10 condition; (2) the care or services that are essential to the overall 11 physical, cognitive and mental growth and developmental needs of the 12 child; and (3) the care or services that will assist the child to 13 achieve or maintain maximum functional capacity in performing daily 14 activities, taking into account both the functional capacity of the 15 child and those functional capacities that are appropriate for individ- 16 uals of the same age as the child. The utilization review agent shall 17 base its determination on medical and other relevant information 18 provided by the child's primary care provider, other health care provid- 19 ers, school, local social services, and/or local public health officials 20 that have evaluated the child, and the utilization review agent will 21 ensure the care and services are provided in sufficient amount, duration 22 and scope to reasonably be expected to produce the intended results and 23 to have the expected benefits that outweigh the potential harmful 24 effects. 25 (c) Utilization review agents shall undertake the following with 26 respect to medically fragile children: 27 (1) Consider as medically necessary all covered services that assist 28 medically fragile children in reaching their maximum functional capaci- 29 ty, taking into account the appropriate functional capacities of chil- 30 dren of the same age. Utilization review agents must continue to cover 31 services until that child achieves age-appropriate functional capacity. 32 (2) Shall not base determinations solely upon review standards appli- 33 cable to (or designed for) adults to medically fragile children. Adult 34 standards include, but are not limited to, Medicare rehabilitation stan- 35 dards and the "Medicare 3 hour rule." Determinations have to take into 36 consideration the specific needs of the child and the circumstances 37 pertaining to their growth and development. 38 (3) Accommodate unusual stabilization and prolonged discharge plans 39 for medically fragile children, as appropriate. Issues utilization 40 review agents must consider when developing and approving discharge 41 plans include, but are not limited to: sudden reversals of condition or 42 progress, which may make discharge decisions uncertain or more prolonged 43 than for other children or adults; necessary training of parents or 44 other adults to care for medically fragile children at home; unusual 45 discharge delays encountered if parents or other responsible adults 46 decline or are slow to assume full responsibility for caring for 47 medically fragile children; the need to await an appropriate home or 48 home-like environment rather than discharge to a housing shelter or 49 other inappropriate setting for medically fragile children, the need to 50 await construction adaptations to the home (such as the installation of 51 generators or other equipment); and lack of available suitable special- 52 ized care (such as unavailability of pediatric nursing home beds, pedia- 53 tric ventilator units, pediatric private duty nursing in the home, or 54 specialized pediatric home care services). Utilization review agents 55 must develop a person centered discharge plan for the child taking the 56 above situations into consideration.S. 2121--C 11 1 (4) It is the utilization review agents network management responsi- 2 bility to identify an available provider of needed covered services, as 3 determined through a person centered care plan, to effect safe discharge 4 from a hospital or other facility; payments shall not be denied to a 5 discharging hospital or other facility due to lack of an available post- 6 discharge provider as long as they have worked with the utilization 7 review agent to identify an appropriate provider. Utilization review 8 agents are required to approve the use of out-of-network providers if 9 they do not have a participating provider to address the needs of the 10 child. 11 (5) This section does not limit any other rights a medically fragile 12 child may have, including the right to appeal the denial of out of 13 network coverage at in-network cost sharing levels where an appropriate 14 in-network provider is not available pursuant to subsection a-two of 15 section four thousand nine hundred four of this title. 16 (6) Utilization review agents must ensure that medically fragile chil- 17 dren receive services from appropriate providers that have the expertise 18 to effectively treat the child and must contract with providers with 19 demonstrated expertise in caring for the medically fragile children. 20 Network providers shall refer to appropriate network community and 21 facility providers to meet the needs of the child or seek authorization 22 from the utilization review agent for out-of-network providers when 23 participating providers cannot meet the child's needs. The utilization 24 review agent must authorize services as fast as the insured's condition 25 requires and in accordance with established timeframes in the contracts 26 or policy forms. 27 (d) A utilization review agent shall have a procedure by which an 28 insured who is a medically fragile child who requires specialized 29 medical care over a prolonged period of time, may receive a referral to 30 a specialty care center for medically fragile children. If the utiliza- 31 tion review agent, or the primary care provider or the specialist treat- 32 ing the patient, in consultation with a medical director of the utiliza- 33 tion review agent, determines that the insured's care would most 34 appropriately be provided by such a specialty care center, the utiliza- 35 tion review agent shall refer the insured to such center. In no event 36 shall a utilization review agent be required to permit an insured to 37 elect to have a non-participating specialty care center, unless the 38 health care plan does not have an appropriate specialty care center to 39 treat the insured's disease or condition within its network. Such refer- 40 ral shall be pursuant to a treatment plan developed by the specialty 41 care center and approved by the utilization review agent, in consulta- 42 tion with the primary care provider, if any, or a specialist treating 43 the patient, and the insured or the insured's designee. If a utilization 44 review agent refers an insured to a specialty care center that does not 45 participate in the health care plan's network, services provided pursu- 46 ant to the approved treatment plan shall be provided at no additional 47 cost to the insured beyond what the insured would otherwise pay for 48 services received within the network. For purposes of this section, a 49 specialty care center for medically fragile children shall mean a chil- 50 dren's hospital as defined pursuant to subparagraph (iv) of paragraph 51 (e-2) of subdivision four of section two thousand eight hundred seven-c 52 of the public health law, a residential health care facility affiliated 53 with such a children's hospital, any residential health care facility 54 with a specialty pediatric bed average daily census during two thousand 55 seventeen of fifty or more patients, or a facility which satisfies such 56 other criteria as the commissioner of health may designate.S. 2121--C 12 1 (e) When rendering or arranging for care or payment, both the provider 2 and the health care plan shall inquire of, and shall consider the 3 desires of, the family of a medically fragile child including, but not 4 limited to, the availability and capacity of the family, the need for 5 the family to simultaneously care for the family's other children, and 6 the need for parents to continue employment. 7 (f) The health care plan must pay at least eighty-five percent (unless 8 a different percentage or method has been mutually agreed to) of the 9 facility's negotiated acute care rate for all days of inpatient hospital 10 care at a participating specialty care center for medically fragile 11 children when the insurer and the specialty care facility mutually agree 12 the patient is ready for discharge from the specialty care center to the 13 patient's home but requires specialized home services that are not 14 available or in place, or the patient is awaiting discharge to a resi- 15 dential health care facility when no residential health care facility 16 bed is available given the specialized needs of the medically fragile 17 child. The health care plan must pay at least the facility's skilled 18 nursing Medicaid facility rate, unless a different rate has been mutual- 19 ly negotiated, for all days of residential health care facility care at 20 a participating specialty care center for medically fragile children 21 when the insurer and the specialty care facility mutually agree the 22 patient is ready for discharge from the specialty care center to the 23 patient's home but requires specialized home services that are not 24 available or in place. Such requirements shall apply until the health 25 care plan can identify and secure admission to an alternate provider 26 rendering the necessary level of services. The specialty care center 27 must cooperate with the health care plan's placement efforts. 28 (g) In the event a health care plan enters into a participation agree- 29 ment with a specialty care center for medically fragile children in this 30 state, the requirements of this section shall apply to that partic- 31 ipation agreement and to all claims submitted to, or payments made by, 32 any other insurers, health maintenance organizations or payors making 33 payment to the specialty care center pursuant to the provisions of that 34 participation agreement. 35 (h) (1) The superintendent, after consulting with the commissioner of 36 health, shall designate a single set of clinical standards applicable to 37 all utilization review agents regarding pediatric extended acute care 38 stays (defined for the purposes of this section as discharge from one 39 acute care hospital followed by immediate admission to a second acute 40 care hospital; not including transfers of case payment cases as defined 41 in section two thousand eight hundred seven-c of the public health law). 42 The standards shall be adapted from national long term acute care hospi- 43 tal standards for adults and shall be approved by the superintendent, 44 after consultation with one or more specialty care centers for medically 45 fragile children. The standards shall include, but not be limited to, 46 specifications of the level of care supports in the patient's home, at a 47 skilled nursing facility or other setting, that must be in place in 48 order to safely and adequately care for a medically fragile child before 49 medically complex acute care can be deemed no longer medically neces- 50 sary. The standards designated by the commissioner shall pre-empt the 51 clinical standards, if any, for pediatric extended acute care set forth 52 in the utilization review plan by the utilization review agent. 53 (2) The superintendent, after consulting with the commissioner of 54 health, shall designate a single set of supplemental clinical standards 55 (in addition to the clinical standards selected by the utilization 56 review agent) applicable to all utilization review agents regardingS. 2121--C 13 1 acute and sub-acute inpatient rehabilitation for medically fragile chil- 2 dren. The standards shall specify the level of care supports in the 3 patient's home, at a skilled nursing facility or other setting, that 4 must be in place in order to safely and adequately care for a medically 5 fragile child before acute or sub-acute inpatient rehabilitation can be 6 deemed no longer medically necessary. The supplemental standards desig- 7 nated by the superintendent shall pre-empt the clinical standards, if 8 any, regarding readiness for discharge of medically fragile children 9 from acute or sub-acute inpatient rehabilitation, as set forth in the 10 utilization review plan by the utilization review agent. 11 (i) In all instances the utilization review agent shall defer to the 12 recommendations of the referring physician to refer a medically fragile 13 child for care at a particular specialty provider of care to medically 14 fragile children, or the recommended treatment plan by the treating 15 physician at a specialty care center for medically fragile children, 16 except where the utilization review agent has determined, by clear and 17 convincing evidence, that: (1) the recommended provider or proposed 18 treatment plan is not in the best interest of the medically fragile 19 child; or (2) an alternative provider offering substantially the same 20 level of care in accordance with substantially the same treatment plan 21 is available from a lower cost provider. 22 § 14. The insurance law is amended by adding a new section 3217-j to 23 read as follows: 24 § 3217-j. Coverage for medically fragile children. An insurer shall 25 have procedures for coverage of medically fragile children including, 26 but not limited to, those necessary to implement section four thousand 27 nine hundred three-a of this chapter. 28 § 15. The insurance law is amended by adding a new section 4306-i to 29 read as follows: 30 § 4306-i. Coverage for medically fragile children. A corporation that 31 is subject to the provisions of this article shall have procedures for 32 coverage of medically fragile children including, but not limited to, 33 those necessary to implement section four thousand nine hundred three-a 34 of this chapter. 35 § 16. Sections three, four, five, six, seven, ten, eleven, twelve, 36 thirteen, fourteen and fifteen of this act shall not apply to any quali- 37 fied health plans in the individual and small group market on and after 38 the date, if any, when the federal department of health and human 39 services determines in writing that such provisions constitute state-re- 40 quired benefits in addition to essential health benefits, pursuant to 41 the federal Affordable Care Act and regulations promulgated thereunder. 42 § 17. This act shall take effect on the first day of January after it 43 becomes a law.
