STATE OF NEW YORK ________________________________________________________________________ 4135 2023-2024 Regular Sessions IN ASSEMBLY February 9, 2023 ___________ Introduced by M. of A. WEPRIN -- read once and referred to the Committee on Insurance AN ACT to amend the public health law and the insurance law, in relation to clinical standards for utilization review of care for medically fragile children; to amend a chapter of the laws of 2022 amending the public health law and the insurance law relating to enhancing coverage and care for medically fragile children, as proposed in legislative bills numbers S.2121-C and A.289-C, in relation to the effectiveness thereof; and to repeal certain provisions of the public health law and the insurance law relating to medically fragile children The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subparagraphs (iv) and (v) of paragraph (a) of subdivision 2 2 of section 4900 of the public health law, subparagraph (iv) as amended 3 and subparagraph (v) as added by a chapter of the laws of 2022 amending 4 the public health law and the insurance law relating to enhancing cover- 5 age and care for medically fragile children, as proposed in legislative 6 bills numbers S.2121-C and A.289-C, are amended to read as follows: 7 (iv) for purposes of a determination involving treatment for a mental 8 health condition: 9 (A) a physician who possesses a current and valid non-restricted 10 license to practice medicine and who specializes in behavioral health 11 and has experience in the delivery of mental health courses of treat- 12 ment; or 13 (B) a health care professional other than a licensed physician who 14 specializes in behavioral health and has experience in the delivery of a 15 mental health courses of treatment and, where applicable, possesses a 16 current and valid non-restricted license, certificate, or registration 17 or, where no provision for a license, certificate or registration 18 exists, is credentialed by the national accrediting body appropriate to 19 the profession; [or EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04301-01-3
A. 4135 2 1 (v) for purposes of a determination involving treatment of a medically 2 fragile child: 3 (A) a physician who possesses a current and valid non-restricted 4 license to practice medicine and who is board certified or board eligi- 5 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 6 gy; or 7 (B) a physician who possesses a current and valid non-restricted 8 license to practice medicine and is board certified in a pediatric 9 subspecialty directly relevant to the patient's medical condition;] and 10 § 2. Paragraph (b) of subdivision 2 of section 4900 of the public 11 health law, as amended by a chapter of the laws of 2022 amending the 12 public health law and the insurance law relating to enhancing coverage 13 and care for medically fragile children, as proposed in legislative 14 bills numbers S.2121-C and A.289-C, is amended to 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 amended by a chapter of the laws of 2022 amending the public health law 53 and the insurance law relating to enhancing coverage and care for 54 medically fragile children, as proposed in legislative bills numbers 55 S.2121-C and A.289-C, is amended to read as follows:
A. 4135 3 1 2-a. "Clinical standards" means those guidelines and standards set 2 forth in the utilization review plan by the utilization review agent 3 whose adverse determination is under appeal or, in the case of medically 4 fragile children, those guidelines and standards as required by section 5 [forty-nine hundred three-a] forty-four hundred six-i of this [article] 6 chapter. 7 § 4. Paragraph (c) of subdivision 10 of section 4900 of the public 8 health law, as amended by a chapter of the laws of 2022 amending the 9 public health law and the insurance law relating to enhancing coverage 10 and care for medically fragile children, as proposed in legislative 11 bills numbers S.2121-C and A.289-C, is amended to read as follows: 12 (c) a description of practice guidelines and standards used by a 13 utilization review agent in carrying out a determination of medical 14 necessity, which in the case of medically fragile children shall incor- 15 porate the standards required by section [forty-nine hundred three-a] 16 forty-four hundred six-i of this [article] chapter; 17 § 5. Subdivision 11 of section 4900 of the public health law as added 18 by a chapter of the laws of 2022 amending the public health law and the 19 insurance law relating to enhancing coverage and care for medically 20 fragile children, as proposed in legislative bills numbers S.2121-C and 21 A.289-C is REPEALED. 22 § 6. Section 4401 of the public health law is amended by adding a new 23 subdivision 9 to read as follows: 24 9. "Medically fragile child" means an individual who is under twenty- 25 one years of age and has a chronic debilitating condition or conditions, 26 who may or may not be hospitalized or institutionalized, and meets one 27 or more of the following criteria (a) is technologically dependent for 28 life or health sustaining functions, (b) requires a complex medication 29 regimen or medical interventions to maintain or to improve their health 30 status, or (c) is in need of ongoing assessment or intervention to 31 prevent serious deterioration of their health status or medical compli- 32 cations that place their life, health or development at risk. Chronic 33 debilitating conditions include bronchopulmonary dysplasia, cerebral 34 palsy, congenital heart disease, microcephaly, pulmonary hypertension, 35 and muscular dystrophy. The term "medically fragile child" shall also 36 include traumatic brain injury, the nature of which typically requires 37 care in a specialty care center for medically fragile children, even 38 though the child does not have a chronic debilitating condition or also 39 meet one of the three conditions of this subdivision. Notwithstanding 40 the definitions set forth in this subdivision, any patient which has 41 received prior approval from a health maintenance organization for 42 admission to a specialty care facility for medically fragile children 43 shall be considered a medically fragile child at least until discharge 44 from that facility occurs. 45 § 7. Subdivision 1 of section 4902 of the public health law is amended 46 by adding a new paragraph (l) to read as follows: 47 (l) The commissioner, in consultation with the superintendent of 48 financial services, may, as necessary, promulgate by regulation special 49 considerations and processes for utilization review related to medically 50 fragile children. Such regulations may include, at a minimum, consider- 51 ations and processes related to: 52 (i) medically necessary covered services to medically fragile chil- 53 dren; 54 (ii) determinations specific to the needs of medically fragile chil- 55 dren; 56 (iii) stabilization and discharge plans; and
A. 4135 4 1 (iv) payment for the care of medically fragile children. 2 § 8. Section 4903-a of the public health law is REPEALED. 3 § 9. The public health law is amended by adding a new section 4406-i 4 to read as follows: 5 § 4406-i. Utilization review determinations for medically fragile 6 children. 1. Notwithstanding any inconsistent provision of the health 7 maintenance organization's clinical standards, the health maintenance 8 organization, and any utilization review agent under contract with such 9 health maintenance organization, shall administer and apply the clinical 10 standards (and make determinations of medical necessity) regarding 11 medically fragile children in accordance with the requirements of this 12 section and any regulations with special considerations and processes 13 for utilization review related to medically fragile children. 14 2. Health maintenance organizations shall undertake the following with 15 respect to medically fragile children, and as applicable, shall ensure 16 that their contracted utilization review agents undertake the following 17 with respect to medically fragile children: 18 (a) Consider as medically necessary all covered services that assist 19 medically fragile children in reaching their maximum functional capaci- 20 ty, taking into account the appropriate functional capacities of chil- 21 dren of the same age. In the case of Medicaid managed care, health main- 22 tenance organizations shall continue to cover services until that child 23 achieves age-appropriate functional capacity. 24 (b) Shall not base determinations solely upon review standards appli- 25 cable to (or designed for) adults to medically fragile children. Deter- 26 minations shall take into consideration the specific needs of the child 27 and the circumstances pertaining to their growth and development. 28 (c) Accommodate unusual stabilization and prolonged discharge plans 29 for medically fragile children, as appropriate. Health maintenance 30 organizations, and as applicable their contracted utilization review 31 agents, shall consider when developing and approving discharge plans 32 issues including sudden reversals of condition or progress which may 33 make discharge decisions uncertain or more prolonged than for other 34 children or adults. 35 (d) It is the health maintenance organization's network management 36 responsibility to identify an available provider of needed covered 37 services, as determined through a person centered care plan, to effect 38 safe discharge from a hospital or other facility. In the case of Medi- 39 caid managed care, payments shall not be denied to a discharging hospi- 40 tal or other facility due to lack of an available post-discharge provid- 41 er as long as they have worked with the utilization review agent to 42 identify an appropriate provider. 43 (e) This section does not limit any other rights the medically fragile 44 child may have, including the right to appeal the denial of out of 45 network coverage at in-network cost sharing levels where an appropriate 46 in-network provider is not available pursuant to subdivision one-b of 47 section forty-nine hundred four of this chapter. 48 (f) Health maintenance organizations shall contract with providers 49 with demonstrated expertise in caring for the medically fragile chil- 50 dren. Network providers shall refer to appropriate network community 51 and facility providers for covered services to meet the needs of the 52 child or seek authorization from the health maintenance organization for 53 out-of-network providers when participating providers cannot meet the 54 child's needs. 55 3. In the case of Medicaid managed care, when rendering or arranging 56 for care or payment, both the provider and the health maintenance organ-
A. 4135 5 1 ization shall inquire of, and shall consider the desires of the family 2 of a medically fragile child including, but not limited to, the avail- 3 ability and capacity of the family, the need for the family to simul- 4 taneously care for the family's other children, and the need for parents 5 to continue employment. 6 4. In the case of Medicaid managed care, the health maintenance organ- 7 ization shall pay for all days of inpatient hospital care at a partic- 8 ipating specialty care center for medically fragile children when the 9 health maintenance organization and the specialty care facility mutually 10 agree the patient is ready for discharge from the specialty care center 11 to the patient's home but requires specialized home services that are 12 not available or in place, or the patient is awaiting discharge to a 13 residential health care facility when no residential health care facili- 14 ty bed is available given the specialized needs of the medically fragile 15 child. In the case of Medicaid managed care, the health maintenance 16 organization shall pay, for all days of residential health care facility 17 care at a participating specialty care center for medically fragile 18 children when the health maintenance organization and the specialty care 19 facility mutually agree the patient is ready for discharge from the 20 specialty care center to the patient's home but requires specialized 21 home services that are not available or in place. In the case of Medi- 22 caid managed care, such requirements shall apply until the health plan 23 can identify and secure admission to an alternate provider rendering the 24 necessary level of services. The specialty care center shall facilitate 25 placement efforts to effectuate the discharge. 26 5. In the event a health maintenance organization enters into a 27 participation agreement with a specialty care center for medically frag- 28 ile children in this state, the requirements of this section shall apply 29 to such participation agreement and to all claims submitted to, or 30 payments made by, any other health maintenance organizations, insurers 31 or payors making payment to the specialty care center pursuant to the 32 provisions of that participation agreement. 33 § 10. Subdivision 9 of section 4403 of the public health law, as added 34 by a chapter of the laws of 2022 amending the public health law and the 35 insurance law relating to enhancing coverage and care for medically 36 fragile children, as proposed in legislative bills numbers S.2121-C and 37 A.289-C, is amended to read as follows: 38 9. A health maintenance organization shall have procedures for cover- 39 age of medically fragile children including[, but not limited to,] those 40 necessary to implement section [forty-nine hundred three-a] forty-four 41 hundred six-i of this article. 42 § 11. Subparagraphs (D) and (E) of paragraph 1 of subsection (b) of 43 section 4900 of the insurance law, subparagraph (D) as amended and 44 subparagraph (E) as added by a chapter of the laws of 2022 amending the 45 public health law and the insurance law relating to enhancing coverage 46 and care for medically fragile children, as proposed in legislative 47 bills numbers S.2121-C and A.289-C, are amended to read as follows: 48 (D) for purposes of a determination involving treatment for a mental 49 health condition: 50 (i) a physician who possesses a current and valid non-restricted 51 license to practice medicine and who specializes in behavioral health 52 and has experience in the delivery of mental health courses of treat- 53 ment; or 54 (ii) a health care professional other than a licensed physician who 55 specializes in behavioral health and has experience in the delivery of 56 mental health courses of treatment and, where applicable, possesses a
A. 4135 6 1 current and valid non-restricted license, certificate, or registration 2 or, where no provision for a license, certificate or registration 3 exists, is credentialed by the national accrediting body appropriate to 4 the profession; [or 5 (E) for purposes of a determination involving treatment of a medically 6 fragile child: 7 (i) a physician who possesses a current and valid non-restricted 8 license to practice medicine and who is board certified or board eligi- 9 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 10 gy; or 11 (ii) a physician who possesses a current and valid non-restricted 12 license to practice medicine and is board certified in a pediatric 13 subspecialty directly relevant to the patient's medical condition;] and 14 § 12. Paragraph 2 of subsection (b) of section 4900 of the insurance 15 law, as amended by a chapter of the laws of 2022 amending the public 16 health law and the insurance law relating to enhancing coverage and care 17 for medically fragile children, as proposed in legislative bills numbers 18 S.2121-C and A.289-C, is amended to read as follows: 19 (2) for purposes of title two of this article: 20 (A) a physician who: 21 (i) possesses a current and valid non-restricted license to practice 22 medicine; 23 (ii) where applicable, is board certified or board eligible in the 24 same or similar specialty as the health care provider who typically 25 manages the medical condition or disease or provides the health care 26 service or treatment under appeal; 27 (iii) has been practicing in such area of specialty for a period of at 28 least five years; and 29 (iv) is knowledgeable about the health care service or treatment under 30 appeal; or 31 (B) a health care professional other than a licensed physician who: 32 (i) where applicable, possesses a current and valid non-restricted 33 license, certificate or registration; 34 (ii) where applicable, is credentialed by the national accrediting 35 body appropriate to the profession in the same profession and same or 36 similar specialty as the health care provider who typically manages the 37 medical condition or disease or provides the health care service or 38 treatment under appeal; 39 (iii) has been practicing in such area of specialty for a period of at 40 least five years; 41 (iv) is knowledgeable about the health care service or treatment under 42 appeal; and 43 (v) where applicable to such health care professional's scope of prac- 44 tice, is clinically supported by a physician who possesses a current and 45 valid non-restricted license to practice medicine[; or 46 (C) for purposes of a determination involving treatment of a medically 47 fragile child: 48 (i) a physician who possesses a current and valid non-restricted 49 license to practice medicine and who is board certified or board eligi- 50 ble in pediatric rehabilitation, pediatric critical care, or neonatolo- 51 gy; or 52 (ii) a physician who possesses a current and valid non-restricted 53 license to practice medicine and is board certified in a pediatric 54 subspecialty directly relevant to the patient's medical condition]. 55 § 13. Subsection (b-1) of section 4900 of the insurance law, as 56 amended by a chapter of the laws of 2022 amending the public health law
A. 4135 7 1 and the insurance law relating to enhancing coverage and care for 2 medically fragile children, as proposed in legislative bills numbers 3 S.2121-C and A.289-C, is amended to read as follows: 4 (b-1) "Clinical standards" means those guidelines and standards set 5 forth in the utilization review plan by the utilization review agent 6 whose adverse determination is under appeal or, in the case of medically 7 fragile children those guidelines and standards as required by section 8 [forty-nine hundred three-a] three thousand two hundred seventeen-j and 9 four thousand three hundred six-i of this [article] chapter. 10 § 14. Subsection (j) of section 4900 of the insurance law, as amended 11 by a chapter of the laws of 2022 amending the public health law and the 12 insurance law relating to enhancing coverage and care for medically 13 fragile children, as proposed in legislative bills numbers S.2121-C and 14 A.289-C, is amended to read as follows: 15 (j) "Utilization review plan" means: (1) a description of the process 16 for developing the written clinical review criteria; (2) a description 17 of the types of written clinical information which the plan might 18 consider in its clinical review, including [but not limited to,] a set 19 of specific written clinical review criteria; (3) a description of prac- 20 tice guidelines and standards used by a utilization review agent in 21 carrying out a determination of medical necessity, which, in the case of 22 medically fragile children, shall incorporate the standards required by 23 [section forty-nine hundred three-a] sections three thousand two hundred 24 seventeen-j and four thousand three hundred six-i of this [article] 25 chapter; (4) the procedures for scheduled review and evaluation of the 26 written clinical review criteria; and (5) a description of the quali- 27 fications and experience of the health care professionals who developed 28 the criteria, who are responsible for periodic evaluation of the crite- 29 ria and of the health care professionals or others who use the written 30 clinical review criteria in the process of utilization review. 31 § 15. Subsection (k) of section 4900 of the insurance law, as added by 32 a chapter of the laws of 2022 amending the public health and the insur- 33 ance law relating to enhancing coverage and care for medically fragile 34 children, as proposed in legislative bills numbers S. 2121-C and A. 35 289-C, is REPEALED. 36 § 16. Subsection (a) of section 107 of the insurance law is amended by 37 adding a new paragraph 55 to read as follows: 38 (55) "Medically fragile child" means an individual who is under twen- 39 ty-one years of age and has a chronic debilitating condition or condi- 40 tions, who may or may not be hospitalized or institutionalized, and 41 meets one or more of the following criteria: (1) is technologically 42 dependent for life or health sustaining functions; (2) requires a 43 complex medication regimen or medical interventions to maintain or to 44 improve their health status; or (3) is in need of ongoing assessment or 45 intervention to prevent serious deterioration of their health status or 46 medical complications that place their life, health or development at 47 risk. Chronic debilitating conditions include bronchopulmonary dyspla- 48 sia, cerebral palsy, congenital heart disease, microcephaly, pulmonary 49 hypertension, and muscular dystrophy. The term "medically fragile child" 50 shall also include traumatic brain injury, the nature of which typically 51 require care in a specialty care center for medically fragile children, 52 even though the child does not have a chronic debilitating condition or 53 also meet one of the three conditions of this subsection. Notwithstand- 54 ing the definitions set forth in this subsection, any patient which has 55 received prior approval from an insurer for admission to a specialty 56 care facility for medically fragile children shall be considered a
A. 4135 8 1 medically fragile child at least until discharge from that facility 2 occurs. 3 § 17. Subsection (a) of section 4902 of the insurance law is amended 4 by adding a new paragraph 14 to read as follows: 5 (14) The superintendent, in consultation with the commissioner of 6 health, may, as necessary, promulgate by regulation special consider- 7 ations and processes for utilization review related to medically fragile 8 children. Such regulations may include, at a minimum, considerations and 9 processes related to: 10 (i) medically necessary covered services to medically fragile chil- 11 dren; 12 (ii) determinations specific to the needs of medically fragile chil- 13 dren; 14 (iii) stabilization and discharge plans; and 15 (iv) payment for the care of medically fragile children. 16 § 18. Section 4903-a of the insurance law, as added by a chapter of 17 the laws of 2022 amending the public health and the insurance law relat- 18 ing to enhancing coverage and care for medically fragile children, as 19 proposed in legislative bills numbers S. 2121-C and A. 289-C, is 20 REPEALED. 21 § 19. Section 3217-j of the insurance law, as added by a chapter of 22 the laws of 2022 amending the public health law and the insurance law 23 relating to enhancing coverage and care for medically fragile children, 24 as proposed in legislative bills numbers S.2121-C and A.289-C, is 25 REPEALED and a new section 3217-j is added to read as follows: 26 § 3217-j. Utilization review determinations for medically fragile 27 children. (a) Notwithstanding any inconsistent provision of the insur- 28 er's clinical standards, the insurer, and any utilization review agent 29 under contract with such insurer, shall administer and apply the clin- 30 ical standards (and make determinations of medical necessity) regarding 31 medically fragile children in accordance with the requirements of this 32 section and any regulations with special considerations and processes 33 for utilization review related to medically fragile children. 34 (b) Insurers shall undertake the following with respect to medically 35 fragile children, and as applicable, shall ensure that their contracted 36 utilization review agents undertake the following with respect to 37 medically fragile children: 38 (1) Consider as medically necessary all covered services that assist 39 medically fragile children in reaching their maximum functional capaci- 40 ty, taking into account the appropriate functional capacities of chil- 41 dren of the same age. 42 (2) Shall not base determinations solely upon review standards appli- 43 cable to (or designed for) adults to medically fragile children. Deter- 44 minations shall take into consideration the specific needs of the child 45 and the circumstances pertaining to their growth and development. 46 (3) Accommodate unusual stabilization and prolonged discharge plans 47 for medically fragile children, as appropriate. Insurers, and as appli- 48 cable their contracted utilization review agents, shall consider when 49 developing and approving discharge plans issues including sudden 50 reversals of condition or progress, which may make discharge decisions 51 uncertain or more prolonged than for other children or adults. 52 (4) It is the insurer's network management responsibility under a 53 managed care health insurance contract as defined in subsection (c) of 54 section four thousand eight hundred one of this chapter to identify an 55 available provider of needed covered services, as determined through a
A. 4135 9 1 person centered care plan, to effect safe discharge from a hospital or 2 other facility. 3 (5) This section does not limit any other rights a medically fragile 4 child may have, including the right to appeal the denial of out of 5 network coverage at in-network cost sharing levels where an appropriate 6 in-network provider is not available pursuant to subsection a-two of 7 section four thousand nine hundred four of this chapter. 8 (6) Insurers shall contract with providers with demonstrated expertise 9 in caring for the medically fragile children. Network providers shall 10 refer to appropriate network community and facility providers for 11 covered services to meet the needs of the child or seek authorization 12 from the insurer for out-of-network providers when participating provid- 13 ers cannot meet the child's needs. 14 (c) In the event an insurer enters into a participation agreement with 15 a specialty care center for medically fragile children in this state, 16 the requirements of this section shall apply to that participation 17 agreement and to all claims submitted to, or payments made by, any other 18 insurers, health maintenance organizations or payors making payment to 19 the specialty care center pursuant to the provisions of that partic- 20 ipation agreement. 21 § 20. Section 4306-i of the insurance law, as added by a chapter of 22 the laws of 2022 amending the public health law and the insurance law 23 relating to enhancing coverage and care for medically fragile children, 24 as proposed in legislative bills numbers S.2121-C and A.289-C, is 25 amended to read as follows: 26 § 4306-i. Coverage for medically fragile children. A corporation that 27 is subject to the provisions of this article shall have procedures for 28 coverage of medically fragile children [including, but not limited to, 29 those necessary to implement section four thousand nine hundred three-a] 30 consistent with section three thousand two hundred seventeen-j of this 31 chapter. 32 § 21. Section 17 of a chapter of the laws of 2022 amending the public 33 health law and the insurance law relating to enhancing coverage and care 34 for medically fragile children, as proposed in legislative bills numbers 35 S.2121-C and A.289-C, is amended to read as follows: 36 § 17. This act shall take effect on the first day of [January] Septem- 37 ber after it becomes a law. 38 § 22. Sections three, four, six, seven, nine, ten, thirteen, fourteen, 39 sixteen, seventeen, nineteen and twenty of this act shall not apply to 40 any qualified health plans in the individual and small group market on 41 and after the date, if any, when the federal department of health and 42 human services determines in writing that such provisions constitute 43 state-required benefits in addition to essential health benefits, pursu- 44 ant to the federal Affordable Care Act and regulations promulgated ther- 45 eunder. 46 § 23. This act shall take effect immediately; provided that sections 47 one through twenty of this act shall take effect on the same date and in 48 the same manner as a chapter of the laws of 2022 amending the public 49 health law and the insurance law relating to enhancing coverage and care 50 for medically fragile children, as proposed in legislative bills numbers 51 S.2121-C and A.289-C, takes effect.