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Title: Section 85.3 - Deferrable surgery

Effective Date


85.3 Deferrable surgery.

(a) To be a covered benefit under medical assistance for the needy as provided in section 365-a(5)(c) of the Social Services Law, any surgery not coverable as emergency or urgent surgery under section 365-a(5)(a) or which does not meet standards for surgical intervention under section 365-a(5)(b) shall require a determination of coverability by a person designated by the Commissioner of Health prior to admission. A determination of coverability shall be based on the likelihood that deferral of the proposed surgery for six months or more may jeopardize life or essential function, or cause severe pain.

(b) A determination of coverability shall be for a specified period of time not to exceed the 50th percentile of length of stay norms for comparable patients which have been authorized by the commissioner or the 20th day of stay, whichever is less. If the stay is for rehabilitation of physical disability as described in section 85.5(a) of this Part, such specified period of time shall not exceed the 40th day of stay. Subsequent to this initial determination of coverability, extensions of benefit coverability shall be subject to length of stay limitations of sections 85.5 and 85.7 of this Part.

(c) The required determination of coverability shall be initiated by written request from the proposing surgeon, with information adequate for making the determination. A determination of coverability shall be made by a designated physician or non-physician under supervision of a designated physician. A determination of non-coverability shall be made only by a physician.

(d) Prior to making a determination, the designated person may require a written second opinion from a qualified specialist designated by the Commissioner of Health. A written second opinion shall be based upon an examination of the patient and a review of information about the patient provided by the proposing surgeon. A second written opinion under this section shall in every instance be required for the following surgical procedures except when performed as urgent or emergency surgery as set forth in this Part, or when not required under the provisions of the children and youth with special health care needs support services:

(1) tonsillectomy and/or adenoidectomy.

(2) herniorrhapy.

(3) hemorrhoidectomy.

(4) hysterectomy.

(5) cholecystectomy.

(6) spinal fusion or laminectomy.

(7) joint cartilage surgery.

(e) If, in any area, reasonable patient access to specialists designated to give second opinion is lacking, the Commissioner of Health may provide for other mechanisms to assist his designee in making determination of coverability.

(f) A written second opinion may be required by the department for any deferrable surgery to be performed within specific hospitals or by specific surgeons when review reveals unusual, aberrant or questionable practices, or practices not in conformity with provisions of this section.

(g) Notice of determination shall be given to the proposing surgeon who shall, if coverability is determined, incorporate such notice in the hospital record at admission.

(h) The proposing surgeon may appeal any determination of non-coverability to a physician or physicians designated by the Commissioner of Health for such purpose. Notification of decision on appeal shall be given to the proposing surgeon who shall incorporate any notice of determination of coverability in the hospital record at admission.


VOLUME A-1a (Title 10)