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

Eliot Spitzer
Governor

Eric R. Dinallo
Superintendent

The Office of General Counsel issued the following opinion on January 4, 2008 representing the position of the New York State Insurance Department.

Re: Utilization Review Timelines

Questions Presented:

1. What types of health care services are “continued or extended”?

2. If health care services are provided in a manner that is not continuous, may they be considered “continued or extended” health care services?

Conclusions:

1. Whether a health care service is “continued or extended” is a question of fact that depends upon a number of factors.

2. Short interruptions during a course of treatment do not generally preclude the treatment from being considered “continued or extended,” but such interruptions must be assessed on a case-by-case basis.

Facts:

According to its website, the inquirer provides health management solutions in the area of behavioral and emotional well-being. It reports that it renders service as a utilization review agent for a health service corporation and, when required under applicable subscriber contacts, provides pre-authorizations for “mental health” services.

The health service corporation is a not-for-profit health service corporation that operates in accordance with Insurance Law § 4302 in two areas of the State. In addition, it operates a health maintenance that has a certificate of authority from the New York State Department of Health (“Health Department”) issued in accordance with Public Health Law § 4403(1).

The inquirer furnished the following hypothetical scenarios and asks the following questions concerning mental health services:

1. A psychiatrist is seeing a patient once every three months, and after the first year of treatment and four visits, the psychiatrist requests four additional sessions be approved for the following year. The inquirer asks whether the approval or disapproval of the subsequent sessions needs to be communicated within one business day.

2. A member is discharged from an inpatient level of care and is following up with both a psychologist and a psychiatrist for therapy and medication, but the psychologist’s request for approval of out-patient care does not occur until three days after the patient is discharged from the hospital. The inquirer asks whether the approval or disapproval of the out-patient services needs to be communicated within one day or three days, and also queries whether the answer would be different if the member had never seen the psychologist prior to being admitted to the hospital, or if the member already was receiving services from that provider prior to the inpatient admission.

3. When an outpatient provider requests a utilization review determination for additional routine outpatient services prior to the end of the current cluster of authorized or approved services, does the approval or disapproval need to be made within one business day?

Analysis:

While the inquiry specifically concerns treatment for mental and/or emotional problems, much of the analysis that follows is no less applicable to treatment for other conditions. Nevertheless, this opinion is limited only to the treatment of mental or emotional ailments. Moreover, while Articles 49 of the Insurance Law and Public Health Law are similar, the views expressed herein with regard to the Public Health Law have not been reviewed by the Health Department.

Insurance Law §§ 3221(l)(5) and 4303(g) & (h) were amended by 2006 N.Y. Laws 748 to require “mental health parity” in New York insurance policies and contracts. The amended statutes provide, in pertinent part, that:

Nothing in this subsection shall be construed to prevent the medical management or utilization review of mental health benefits including the use of prospective, concurrent or retrospective review, preauthorization, and appropriateness criteria as to the level and intensity of treatment applicable to behavioral health.

Insurance Law § 4900(i) is central to the inquiry. It defines a “utilization review agent” as:

[A]ny insurer subject to article thirty-two [commercial health insurers] or forty-three [not-for-profit health insurers] of this chapter performing utilization review and any independent utilization review agent performing utilization review under contract with such insurer

Public Health Law § 4900(9) likewise defines “utilization review agent”:

"Utilization review agent" means any company, organization or other entity performing utilization review, except: (a) an agency of the federal government; (b) an agent acting on behalf of the federal government, but only to the extent that the agent is providing services to the federal government; (c) an agent acting on behalf of the state and local government for services provided pursuant to title XIX of the federal social security act; (d) a hospital's internal quality assurance program except if associated with a health care financing mechanism; or (e) any insurer subject to article thirty-two or forty-three of the insurance law and any independent utilization review agent performing utilization review under a contract with such insurer, which shall be subject to article forty-nine of the insurance law.

Accordingly, all private entities providing utilization review services for any private payor are subject to either Article 49 of the Insurance Law or Article 49 of the Public Health Law.

Insurance Law § 4903(c) is also relevant to the inquiry. It provides:

A utilization review agent shall make a determination involving continued or extended health care services, or additional services for an insured undergoing a course of continued treatment prescribed by a health care provider and provide notice of such determination to the insured or the insured's designee, which may be satisfied by notice to the insured's health care provider, by telephone and in writing within one business day of receipt of the necessary information. Notification of continued or extended services shall include the number of extended services approved, the new total of approved services, the date of onset of services and the next review date. (Emphasis added.)

Public Health Law § 4903(3) sets forth the same requirement.

In addition, Insurance Law § 4904(b), which regulates expedited appeals for Insurance Department licensees, is germane to the questions. That statute reads in pertinent part as follows:

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 . . . The utilization review agent shall provide reasonable access to its clinical peer reviewer within one business day of receiving notice of the taking of an expedited appeal. Expedited appeals shall be determined within two business days of receipt of necessary information to conduct such appeal. . . .(Emphasis added).

Public Health Law § 4904(2) sets forth an identical requirement.

The Legislature added Article 49 to the Insurance and Public Health Laws in 1996, as part of a major restructuring of third party payment for health care services. However, there is nothing in the legislative history to indicate what the Legislature specifically contemplated in using the term “continued or extended health care services.” Accordingly, the term must be construed in accordance with general principles of statutory construction.

One meaning of “continue” is: “to carry further in time, space or development; extend,.” American Heritage Dictionary, (4th ed. 2006) (available at http://www.dictionary.com). The same dictionary provides a definition of “extend” as “continued for a long period of time; protracted.” In construing the word “extend”, one court has held that the words, where a period certain is not otherwise specified, denotes an indefinite period. Campbell v. Jimenes, 7 Misc. 77, 27 N.Y.S. 351 ( Sup. Ct. New York Cnty. 1894).

In the context of time limitations for commencing medical malpractice actions, the term “continuous treatment” has been construed by New York’s highest court as follows:

When the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the limitations period does not begin to run until the end of the treatment.

Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S. 2d 319 (1962). In addition, for continuous treatment to toll a statute of limitations, there must be an unbroken course of treatment by a particular practitioner or closely affiliated group of practitioners. Ganess v. City of New York, 85 N.Y.2d 733, 628 N.Y.S. 2d 242 (1995).

The analogy between “continuous treatment” and “continued or extended” provides a reasonable basis for analysis here, because there is a similarity in the terms, and the latter term has not been definitively construed by a court. Thus, in order for a course of treatment to be considered “continued or extended”, several conditions must be met. First, the course of treatment must be for the same condition or complaint. Second, the course of treatment must be by a particular practitioner or closely affiliated group of practitioners. Third, there must be a temporal connection between the discrete treatments.

For example, if an individual were treated for situational depression because of the death of a loved one, and if subsequently such an individual were treated for situational depression as an aspect of post-traumatic stress disorder, the two courses of treatment would not meet the first test, because they would not necessarily pertain to the same condition or complaint. If a primary care provider were to prescribe a mild tranquilizer for work stress and, after a period of time there was no appreciable improvement in the patient’s condition, the primary care provider might refer the patient to a psychotherapist. In that instance, the two courses of treatment might not meet the second test, because it is conceivable that the services would not be rendered by closely affiliated practitioners.

Some treatments, including those for emotional and mental problems, are by their nature intermittent. Whether the interval between drug administrations or therapy sessions is so long as to not to constitute treatment that is “continued or extended” is a question of fact dependent upon the particular circumstances presented in that instance.

The hypothetical situations presented would, therefore, turn on their facts. Consideration would need to be given to the course and duration of the treatment that was suggested for a particular treatment regimen. In addition, the requirements of a particular policy or contract would be relevant. Thus, in many circumstances, it may be incumbent on the clinical peer reviewer to make a determination on the question of “continued or extended” treatment within one business day.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.