April 20, 2023

In the attached, please find a proposed rule making, published in the April 19th State Register by NYSDOH related to decreasing the administrative burden on enrolled Medicaid fee for-service members and providers changing from utilization thresholds to utilization review.

The proposed rule amends current regulations to conform to statutory amendments to Social Services Law § 365-g, as amended by Chapter 57 of the laws of 2022. It states that it decreases the administrative burden on enrolled fee-for-service Medicaid members and providers by eliminating utilization thresholds as service limits, while meeting the federal regulatory requirements through continued utilization monitoring in a post-payment review process, with referral to the OHIP pre-payment Provider on Review Program, and to the Office of the Medicaid Inspector General (OMIG) where suspected fraud, waste or abuse are identified in the unnecessary or inappropriate use of care, services or supplies by members or providers.

The monitoring of service utilization has moved from a prospective to a retrospective function and removes the requirement for provider-submitted increase requests, eliminating the administrative burden and interruption of service delivery to members and providers who formerly had to request increases to benefit limits upon reaching the previous utilization thresholds.

The rule applies to physician and clinic services and maintains exemptions for excluded services for which utilization reviews do not apply (outlined below) and adding services provided per a court order and services provided as a condition of eligibility for any other public program, including public assistance to those that are exempt from utilization review.

(a) services furnished by or through a managed care program to persons enrolled in and receiving medical care from such program. Managed care programs include health maintenance organizations, preferred provider plans, physician case management programs or other managed medical care programs recognized by the Department; (b) services otherwise subject to prior approval or prior authorization;(c) reproductive health and family planning services including: diagnosis, treatment, drugs, supplies, and related counseling furnished or prescribed by a physician or under a physician’s supervision; (d) until September 1, 1992, services provided by or under the direction of a primary provider under the recipient restriction program, as established by section 360-6.4 of this Title; (e) methadone maintenance treatment services; (f) services provided by private practitioners on a fee-for-service basis to inpatients in general hospitals certified under Article 28 of the Public Health Law or Article 31 of the Mental Hygiene Law and residential health care facilities; (g) hemodialysis services; (h) obstetrical services provided by a physician, hospital outpatient department, or free-standing diagnostic and treatment center-certified under Article 28 of the Public Health Law; or (i) services provided through or by referral from a preferred primary care provider designated pursuant to Section 2807(12) of the Public Health Law[.];(j) services provided pursuant to a court order;or (k) services provided as a condition of eligibility for any other public program, including but not limited to public assistance.

Upon review, please let us know if you have any questions.  Public comments are due within 60 days from publication.