Memorandum in Opposition
For Immediate Release: February 9, 2024

Re:      S.3400 (Breslin) / A.7268 (Weprin) – An act to amend the public health law and the insurance law, in relation to utilization review program standards, and in relation to pre-authorization of health care services

This legislation, S.3400/A.7268, would impose new standards on health plans’ utilization review criteria,  impose standing prior authorization requirements, and prohibit health plans from retroactively denying claims to providers for members who are no longer covered by the health plan. HPA opposes this legislation as it will diminish the quality of care for patients and result in higher health insurance premiums for employers and consumers.

Sections 1 and 3 of the bill, which would require health plans’ clinical review criteria to utilize recognized evidence-based and peer reviewed clinical review criteria that takes into account the needs of a typical patient populations and diagnoses, are unnecessary. Health plans are committed to ensuring that every member has timely access to high quality care and that their clinical review criteria are based on the best available clinical evidence with input from relevant providers. In establishing clinical review criteria, health plans already must abide by stringent state requirements that their medical necessity guidelines and criteria are evidence-based, which ensures that a plan’s decisions are objective and based on clinical evidence. Through their Pharmacy and Therapeutics (P&T) committees, which are comprised of independent community physicians and pharmacists with expertise in the diagnosis and treatment of disease, health plans employ an ongoing process that includes a rigorous review of the most current evidence-based literature and input from clinical and program staff, as well as from external clinical experts. Further, utilization management criteria and procedures are reviewed at least annually and criteria are updated more often as new treatments, applications and technologies are adopted as generally-accepted professional medical practice. Moreover, the state requires that medical necessity guidelines be developed with input from Board-certified, actively-practicing physicians within a plan’s service area, and allied health professionals from the medical specialties and subspecialties, as well as utilizing standards adopted by national accreditation organizations, including the National Committee for Quality Assurance (NCQA).

Sections 2 and 4 of the bill would reduce the amount of time health plans have to make utilization review determinations from three (3) business days to a straight 72 hours and impose standing pre-authorization requirements for the length of an individual’s prescription or treatment. Pre-authorization protocols are intended to protect patients from unnecessary and potentially harmful care, ensure that providers follow nationally recognized care guidelines and that care is coordinated, and make sure that the medication is safe and effective. Mandating ongoing authorization for the duration of a prescription or treatment is an overly broad standard that would lead to higher costs and fail to account for instances in which a patient’s circumstances change, such as being prescribed a new medication that could have dangerous, even potentially fatal, interactions. Further, hospitals’ concerns related to pre-authorization requirements were addressed under Chapter 640 of the Acts of 2019 as part of compromise legislation between health plans and hospital associations.

Section 5 would prohibit health plans from retroactively denying claims to providers for services provided to one-time members who are later found to have been ineligible at the time of service. Eligibility verification problems arise because at the time when providers check the status of an individual, health plans themselves do not always have complete information about the patients’ eligibility. This can happen for a number of reasons. The most prevalent reason is that the member’s employer might not have updated and provided changes in the member’s coverage to the health plan in a timely manner, leaving health plans, hospitals, and physicians responsible for tracking down new information. Usually, the employer has a period of time within which to notify the plan of changes in their employees’ health plan coverage, such as when an employee leaves the company. During the time in between the employee leaving the job and the employer notifying the health plan, the ex-employee might use services and show their health plan membership card. The provider and health plan are both unaware that the patient had actually left the company and thus is no longer part of the company’s health plan.

The unfortunate result is that the provider has been given misleading information by the patient as to their health plan membership, and then is denied the associated claims for service by the health plan for whom the patient is no longer a member. It would therefore be unfair to require health plans to pay for services used by people who are no longer members of their plans. This section would not only put an inappropriate onus on the health plans to play ineligible claims, but also create an incentive for consumers to fraudulently provide out-of-date health plan membership cards to providers in order to access services.

For these reasons, we urge you to reject S.3400/A.7268.