Current through Register Vol. 45, No. 52, December 27, 2023
(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).
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