Bill Text: NY S02847 | 2019-2020 | General Assembly | Introduced


Bill Title: 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.

Spectrum: Slight Partisan Bill (Democrat 8-5)

Status: (Introduced) 2019-05-29 - ADVANCED TO THIRD READING [S02847 Detail]

Download: New_York-2019-S02847-Introduced.html


                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.
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