N.Y. Comp. Codes R. & Regs. tit. 12 § 441.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 441.5 - Prior Authorization Process

(a) A medical provider must obtain Prior Authorization before prescribing or dispensing:

1. Phase A formulary drugs (including compound drug ingredients) other than as set forth in subdivision (a) of section 441.4 herein;

2. Phase B formulary drugs (including compound drug ingredients) other than as set forth in subdivision (b) of section 441.4 herein; or

3. Perioperative formulary drugs (including compound drug ingredients) other than as set forth in subdivision (c) of section 441.4 herein.

4. Brand name drugs for a generically available formulary drug, including a brand name drug available in a different dosage or strength.

5. Non-Formulary drugs;

6. Compound drugs;

7. Formulary drugs prescribed in a manner not consistent with the adopted Medical Treatment Guidelines when a case has been accepted by the carrier or established by the Board.

(b) Prior Authorization must be sought and obtained prior to the time that the drug is prescribed and dispensed. The carrier or self-insured employer may deny payment when Prior Authorization was not obtained prior to dispensing the drug.

1. Prior Authorization must be sought and obtained for drugs listed in subdivision (a) of this section. Prior Authorization must be obtained:

i. when such drugs have been previously prescribed and dispensed prior to the effective date of the Formulary, or

ii. following completion or expiration of a previously approved Prior Authorization.

2. When responsibility for payment is apportioned between more than one carrier or self-insured employer, the medical provider must seek Prior Authorization from all carriers and self-insured employers identified as having responsibility for payments for the work-related accident or injury. Any carrier or self-insured employer may approve or partially approve such Prior Authorization request and a subsequent denial or partial approval by any carrier or self-insurance carrier shall not affect the validity of the Prior Authorization approval.

(c) Insurance carriers and self-insured employers shall provide the Chair or his or her designee in the manner prescribed by the Chair with the name and contact information for the point(s) of contact for the First level and Second level review within 30 days of the effective date of this paragraph. Such contact information may include the contacts' direct telephone number(s) and email address(es).

1. If the designated point(s) of contact changes at any time for any reason, the insurance carrier or self-insured employer shall notify the Chair or his or her designee of such change in the manner prescribed by the Chair.

2. The list of designated points of contact for each insurance carrier and self-insured employer shall be maintained by the Board electronically. When a treating medical provider submits a Prior Authorization request electronically, he or she shall be directed to the appropriate contact person. Any change in the designated contact shall not be effective until the designated contact information has been updated in the Board's electronic records.

3. In the event that a carrier or self-insured employer fails to provide the Chair or his or her designee with such name and contact information (in the manner prescribed) within 6 months of the effective date of this Subpart, or provides incorrect or incomplete contact information during initial registration or when updating pursuant to subparagraph (1) of this subdivision, such carrier may be subject to:

i. Orders of the Chair approving Prior Authorizations submitted during such time when the name and contact information is missing, incomplete or incorrect; and

ii. Penalties issued pursuant to section 114-a (3) of the Workers' Compensation Law for every case, where Prior Authorization was requested.

(d) Insurance carriers and self-insured employers shall provide two levels of review as the Prior Authorization process. When a request for Prior authorization is approved or partially approved, the carrier may not thereafter deny payment for the approved medication as set forth in section 440.5 of this Title. The Prior Authorization process replaces the process set forth in section 324.3 of this Chapter (the variance process) for Non-Formulary drugs.

(1) First level review. To initiate the Prior Authorization process, the medical provider shall submit a request for Prior Authorization to the insurance carrier, self-insured employer, or when designated by section 440.3 of this Subchapter, the pharmacy network, to the designated contact for First level review as described in subdivision (c) of this section. Such request shall be submitted in the manner prescribed by the Chair.

(2) A Prior Authorization request for a Non-Formulary drug may include the requested length of time that the Prior Authorization will remain in effect or the quantity prescribed and the number of refills. In no event may a Prior Authorization request exceed 365 days. If the requested length of time for the Prior Authorization is not stated, the default shall be 30 days.

(3) The carrier, self-insured employer, or pharmacy benefits manager shall approve, partially approve or deny a Prior Authorization request within four calendar days of submission by a provider.

(i) A partial approval authorizes the requested drug but limits the length of time, quantity prescribed or number of refills from that requested by the medical provider.

(ii) A request for Prior Authorization that is not responded to within four calendar days (by an approval, denial or partial approval) may be approved for the period requested upon issuance of an Order of the Chair. A carrier may not object to payment in accordance with section 440.5 of this Title for Non-Formulary drugs approved by an Order of the Chair and any such objection or non-payment may be subject to penalties pursuant to section 114-a (3) of the Workers' Compensation Law.

(4) A partial approval or denial of a request for Prior Authorization must:

(i) Provide a specific reason for the denial or partial approval with reference to the specific Prior Authorization request made by the medical provider.

(ii) Provide information regarding how to request review of the denial from the Carrier's Physician.

(5) A first level review of a prior authorization request for medical marijuana must be conducted in conformity with New York State law regarding medical marijuana. Elements that must be included in a prior authorization request for medical marijuana include:

(i) serious life-threatening condition, and associated condition, as defined by New York State Public Health Law;

(ii) compensable work-related condition;

(iii) indication that claimant has been certified by New York State Department of Health to receive medical marijuana;

(iv) description of other treatments that have been tried and have not yielded results; and

(v) expected functional improvement from medical marijuana Final rule as compared with last published rule: Nonsubstantial changes were made in Part 441.

(e) Second level review by carrier or self-insured employer's physician(s) (Carrier's Physician). Within 10 calendar days of a denial or partial approval of a Prior Authorization request, the medical provider may request review of such denial or partial approval by the Carrier's Physician.

1. Such request shall be made to the designated contact for Second level review as described in subparagraph (c) herein and shall include information that is responsive to the denial or partial approval at the first level.

2. The carrier shall approve, partially approve or deny a Prior Authorization request within four calendar days.

3. Only a Carrier's physician may issue a denial or partial approval of a Prior Authorization request.

4. A request for Prior Authorization that is not responded to within four calendar days (by an approval, denial or partial approval) may be approved for the period requested upon issuance of an Order of the Chair. A carrier may not object to payment in accordance with section 440.5 of this Subchapter for Non-Formulary drugs approved by an Order of the Chair and any such objection or non-payment may be subject to section 114-a (3) of the Workers' Compensation Law.

(f) All communications regarding Prior Authorization, including communications pursuant to sections 441.5 and 441.6 of this Part, shall be by the means of electronic delivery the Chair has designated for this purpose, unless the prescribing medical provider has sent a certification to the Board's Medical Director's Office that it is not equipped to send or receive requests by electronic means, in accordance with 12 NYCRR section 324.3(a)(3).

N.Y. Comp. Codes R. & Regs. Tit. 12 § 441.5

Adopted New York State Register June 5, 2019/Volume XLI, Issue 22, eff. 6/5/2019

Amended New York State Register September 1, 2021/Volume XLIII, Issue 35, eff. 9/1/2021