N.Y. Insurance Law Section 3238
Pre-authorization of health care services


(a)

An insurer, corporation organized pursuant to article 43 (Non-profit Medical and Dental Indemnity, or Health and Hospital Service Corporations)article forty-three of this chapter, municipal cooperative health benefits plan certified pursuant to article 47 (Municipal Cooperative Health Benefit Plans)article forty-seven of this chapter, or health maintenance organization and other organizations certified pursuant to article forty-four of the public health law (“health plan”) shall pay claims for a health care service for which a pre-authorization was required by, and received from, the health plan prior to the rendering of such health care service, unless:

(1)

(i) the insured, subscriber, or enrollee was not a covered person at the time the health care service was rendered.

(ii)

Notwithstanding the provisions of subparagraph (i) of this paragraph, a health plan shall not deny a claim on this basis if the insured’s, subscriber’s or enrollee’s coverage was retroactively terminated more than one hundred twenty days after the date of the health care service, provided that the claim is submitted within ninety days after the date of the health care service. If the claim is submitted more than ninety days after the date of the health care service, the health plan shall have thirty days after the claim is received to deny the claim on the basis that the insured, subscriber or enrollee was not a covered person on the date of the health care service.

(2)

the submission of the claim with respect to an insured, subscriber or enrollee was not timely under the terms of the applicable provider contract, if the claim is submitted by a provider, or the policy or contract, if the claim is submitted by the insured, subscriber or enrollee;

(3)

at the time the pre-authorization was issued, the insured, subscriber or enrollee had not exhausted contract or policy benefit limitations based on information available to the health plan at such time, but subsequently exhausted contract or policy benefit limitations after authorization was issued; provided, however, that the health plan shall include in the notice of determination required pursuant to subsection (b) of § 4903 (Utilization review determinations)section four thousand nine hundred three of this chapter and subdivision two of Public Health Law § 4903 (Utilization review determinations)section forty-nine hundred three of the public health law that the visits authorized might exceed the limits of the contract or policy and accordingly would not be covered under the contract or policy;

(4)

the pre-authorization was based on materially inaccurate or incomplete information provided by the insured, subscriber or enrollee, the designee of the insured, subscriber or enrollee, or the health care provider such that if the correct or complete information had been provided, such pre-authorization would not have been granted;

(5)

the pre-authorized service was related to a pre-existing condition that was excluded from coverage; or

(6)

there is a reasonable basis supported by specific information available for review by the superintendent that the insured, subscriber or enrollee, the designee of the insured, subscriber or enrollee, or the health care provider has engaged in fraud or abuse.

(b)

Nothing in this section shall be construed to prohibit a health plan from denying continued or extended coverage as part of a concurrent review of a health care service.

(c)

(1) If a health care provider, while providing a service or procedure to treat a patient, determines that providing an additional or related service or procedure, such as a service or procedure to address a co-morbid condition, is immediately necessary as part of such treatment, and in the clinical judgment of the health care provider it is a medically timely service and it would not be medically advisable to interrupt the provision of care to the patient in order to obtain pre-authorization from a health plan for the additional or related service or procedure, a denial of payment for the additional or related service or procedure due to lack of pre-authorization shall be upheld on appeal only if it is determined that:

(i)

the additional or related service or procedure is not a covered benefit;

(ii)

the additional or related service or procedure was not medically necessary pursuant to § 4904 (Appeal of adverse determinations by utilization review agents)section four thousand nine hundred four of this chapter or Public Health Law § 4904 (Appeal of adverse determinations by utilization review agents)section forty-nine hundred four of the public health law;

(iii)

the additional or related service or procedure was experimental or investigational pursuant to § 4904 (Appeal of adverse determinations by utilization review agents)section four thousand nine hundred four of this chapter or Public Health Law § 4904 (Appeal of adverse determinations by utilization review agents)section forty-nine hundred four of the public health law; or

(iv)

one of the conditions set forth in paragraphs one through six of subsection (a) of this section is met.

(2)

The provisions of this subsection shall apply to situations in which pre-authorization was required and received for the initial service or procedure.

(3)

The provisions of this subsection shall apply without regard to whether the current procedural terminology (CPT) code for the additional or related service or procedure is different than the CPT code for the initial service or procedure.

(d)

Payment for such health care services shall be subject to a health plan’s provider contracts or claims payment policies that are consistent with applicable law, rule or regulation.

(e)

Nothing in this section shall be deemed to limit the right of a health plan to deny a claim if the health plan determines that it is not primarily obligated to pay the claim because other insurance coverage exists that is primary, including but not limited to workers’ compensation and no-fault coverage.

(f)

Notification that a health care service is being provided shall not constitute a request for pre-authorization of that health care service for purposes of this section; provided, however, that if a health plan provides a written acknowledgement of the notification to the health care provider, such acknowledgment shall clearly state that the acknowledgment does not constitute a pre-authorization of the services to be rendered.

(g)

Nothing in this section shall preclude a health care provider and a health plan from agreeing to provisions different from those in this section; provided, however, that any agreement that purports to waive, limit, disclaim, or in any way diminish the rights of a health care provider set forth in this section shall be void as contrary to public policy.

Source: Section 3238 — Pre-authorization of health care services, https://www.­nysenate.­gov/legislation/laws/ISC/3238 (updated Mar. 13, 2020; accessed Mar. 23, 2024).

3201
Approval of life, accident and health, credit unemployment, and annuity policy forms
3202
Withdrawal of approval of policy forms
3203
Individual life insurance policies
3204
Policy to contain entire contract
3205
Insurable interest in the person
3206
Policies which provide for an adjustable maximum rate of interest on policy loans
3207
Life insurance contracts by or for the benefit of minors
3208
Antedating of life insurance policies and burial agreements prohibited
3209
Life insurance, annuities and funding agreements disclosure requirements
3210
Incontestability after reinstatement
3211
Notice of premium due under life or disability insurance policy
3212
Exemption of proceeds and avails of certain insurance and annuity contracts
3213
Payment of proceeds
3214
Interest upon proceeds of life insurance policies and annuity contracts
3215
Disability benefits in connection with life insurance and annuities
3216
Individual accident and health insurance policy provisions
3217
Minimum standards in the form, content and sale of accident and health insurance
3217–A
Disclosure of information
3217–B
Prohibitions
3217–C
Primary and preventive obstetric and gynecologic care
3217–D
Grievance procedure and access to specialty care
3217–E
Choice of health care provider
3217–F
Prohibition on lifetime and annual limits
3217–G
Maternal depression screenings
3217–H
Telehealth delivery of services
3217–I
Essential health benefits package and limit on cost-sharing
3217–J
Utilization review determinations for medically fragile children
3218
Medicare supplemental insurance policies
3219
Annuity and pure endowment contracts and certain group annuity certificates
3220
Group life insurance policies
3221
Group or blanket accident and health insurance policies
3222
Funding agreements
3223
Group annuity contracts
3224
Standard claim forms
3224–A
Standards for prompt, fair and equitable settlement of claims for health care and payments for health care services
3224–B
Rules relating to the processing of health claims and overpayments to physicians
3224–C
Coordination of benefits
3224–D
Prescription synchronization
3225
Eligibility for health insurance in cases of exposure to DES
3226
Reinsurance contracts excepted
3227
Interest upon surrenders, policy loans and other funds
3228
Individual accident and health insurance policies
3229
Minimum benefit standards for certain long term care plans
3230
Accelerated payment of the death benefit or special surrender value under a life insurance policy
3231
Rating of individual and small group health insurance policies
3231*2
Health insurance policies and subscriber contracts
3232
Pre-existing condition provisions in health policies
3232–A
Certification of creditable coverage
3233
Stabilization of health insurance markets and premium rates
3234
Pre-existing condition provisions in group and blanket disability policies
3234*2
Limitations on administrative services and stop-loss coverage
3235
Explanation of benefits forms relating to claims under medicare supplemental insurance policies and limited benefits health insurance pol...
3236
Public health law assessments
3237
Health insurance coverage for full-time students on medical leaves of absence
3238
Pre-authorization of health care services
3239
Wellness programs
3240
Unclaimed benefits
3240*2
Student accident and health insurance
3241
Network coverage
3242
Prescription drug coverage
3243
Discrimination because of sex or marital status in hospital, surgical or medical expense insurance
3244
Explanation of benefits forms relating to claims under certain accident and health insurance policies
3245
Liability to providers in the event of an insolvency

Accessed:
Mar. 23, 2024

Last modified:
Mar. 13, 2020

§ 3238’s source at nysenate​.gov

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