The Office of General Counsel issued the following opinion on April 22, 2005, representing the position of the New York State Insurance Department.

Re: Provider's Waiver of Utilization Review Determination by Telephone

Question Presented:

May a utilization review agent implement a "Do Not Call" list of the providers who notify such agent that they would prefer not to receive utilization review determination notices by telephone?

Conclusion:

No. The N.Y. Ins. Law § 4903(b) explicitly sets out that telephone notice to the insured's health care provider of a utilization review determination is a mandatory requirement. Thus, a "Do Not Call," list would be in violation of the Insurance Law.

Facts:

The inquirer is a utilization review agent that is notifying health care providers by telephone and in writing within three business days of the utilization review determination. However, the inquirer has received a number of calls from health care providers asking that they not be called and that they would prefer to receive the information in writing. The inquirer would like to implement a "Do Not Call" list for those providers who advise that they do not want to be contacted by telephone.

ANALYSIS:

N.Y. Ins. Law § 4903(b) provides:

A utilization review agent shall make a utilization review determination involving health care services which require pre-authorization and provide notice of a determination to the insured or insured's designee and the insured's health care provider by telephone and in writing within three business days of receipt of the necessary information (emphasis added).

In Office of General Counsel Opinion 03-09-08 (September 9, 2003), the Department opined that notification of a utilization review determination via facsimile is not the equivalent to providing notification by telephone1. The basis for the Department's conclusion was that where it was intended that a utilization review agent could use other means the statute specifically so states.

The statute clearly states that a notice of a utilization review determination must be provided by telephone and by writing within three business days. Thus, a "Do Not Call" list would violate the telephone requirement under the statute.

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

1Office of General Counsel Opinion 03-09-08 (September 9, 2003), is available on the Department's website at www.ins.state.ny.us.