Section 3238. Pre-authorization of health care services

(a) An insurer,
  corporation organized pursuant to article forty-three of  this  chapter,
  municipal cooperative health benefits plan certified pursuant to 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.
    * (iii)  The  provisions  of subparagraph (ii) of this paragraph shall
  not apply to coverage that is provided by  the  state  of  New  York,  a
  municipality  or  a  political  subdivision to its respective employees,
  retirees or members.
    * NB Repealed December 31, 2011
    (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  section  four  thousand  nine hundred three of this
  chapter and subdivision two of 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) If a health plan denies payment for a surgical or  other  invasive
  procedure  requiring  sedation due to lack of pre-authorization and such
  surgical or other invasive procedure is rendered at the same time  as  a
  surgical  or  other  invasive  procedure  requiring  sedation  for which
  pre-authorization  was  required  and  received,  upon the appeal of the
  denial, the denial of any such service shall be upheld  only  if  it  is
  determined that:
    (1) the other surgical or invasive procedure requiring sedation is not
  a covered benefit;
    (2)  the  other  surgical or invasive procedure requiring sedation was
  not medically necessary pursuant to section four thousand  nine  hundred
  four  of  this  chapter or section forty-nine hundred four of the public
  health law;
    (3) the other surgical or invasive procedure  requiring  sedation  was
  experimental  or  investigational pursuant to section four thousand nine
  hundred four of this chapter or section forty-nine hundred four  of  the
  public health law; or
    (4)  one  of the conditions set forth in paragraphs one through six of
  subsection (a) of this section is met.
    (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.