New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on September 9, 2003 representing the position of the New York State Insurance Department.

RE: Notification of Utilization Review Determinations

Question Presented:

May a utilization review agent notify the health care provider of its determination via facsimile rather than by telephone?

Conclusion:

No. N.Y. Ins. Law § 4903(b) (McKinney 2000) requires that the health care provider be notified of a determination by telephone. Notification to the health care provider via facsimile is not the equivalent.

Facts:

A utilization review agent asked whether he would be in compliance with N.Y. Ins. Law § 4903(b) (McKinney 2000) if he were to provide notice of his determination to the health care provider via facsimile, rather than by telephone. If he does not receive confirmation that the health care provider received the fax he would then make a telephone call to the health care provider’s office. In all instances he would notify the insured of the determination by telephone.

Analysis:

N.Y. Ins. Law § 4903(b) (McKinney 2000) provides:

A utilization review agent shall make a utilization review determination involving health care services which require pre-authorization and provide notice of a determination to the insured or insured’s designee and the insured’s health care provider by telephone and in writing within three business days of receipt of the necessary information.

The utilization review agent asked whether, because the fax is sent using the telephone lines, a fax transmission is the equivalent of a telephone call. However, a telephone call is a verbal transmission; whereas a fax is a written transmission, despite the fact that it is sent using the telephone lines. Moreover, where it was intended that a utilization review agent could use a facsimile, as well as a telephone, as a means of transmission, the statute specifically so states. Thus, New York Insurance Law N.Y. Ins. Law § 4904(b) (McKinney 2000) provides in pertinent part:

A utilization review agent shall establish an expedited appeal process for appeal of an adverse determination involving (1) continued or extended health care services, procedures or treatments or additional services for an insured undergoing a course of continued treatment prescribed by a health care provider or (2) an adverse determination in which the health care provider believes an immediate appeal is warranted except any retrospective determination. Such process shall include mechanisms which facilitate resolution of the appeal including but not limited to the sharing of information from the insured’s health care provider and the utilization review agent by telephonic means or by facsimile. . . .

Therefore, because N.Y. Ins. Law § 4903(b) (McKinney 2000) only uses the word telephone, it can not be interpreted to also mean facsimile. Accordingly, because N.Y. Ins. Law § 4903(b) (McKinney 2000) requires that the health care provider be notified of a determination by telephone and notification to the health care provider via facsimile is not the equivalent of notification by telephone, a utilization review agent may not notify the health care provider of its determination via facsimile.

For further information you may contact Supervising Attorney Joan Siegel at the New York City Office.