NY Ins L § 4904 (2021)
2021 New York Laws ISC - Insurance Article 49 - Utilization Review and External Appeal Title 1 - Registration of Agents and Review Process 4904 - Appeal of Adverse Determinations by Utilization Review Agents.

§ 4904. Appeal of adverse determinations by utilization review agents. (a)   An  insured,  the  insured's  designee  and,  in  connection  with retrospective adverse determinations, an insured's health care provider, may appeal an adverse determination rendered  by  a  utilization  review agent.  (a-1)   An   insured   or   the   insured's  designee  may  appeal  an out-of-network denial by a health care plan by submitting: (1) a written statement  from  the  insured's  attending  physician,  who  must  be  a licensed,  board  certified  or  board  eligible  physician qualified to practice in the specialty area of  practice  appropriate  to  treat  the insured   for   the   health   services   sought,   that  the  requested out-of-network health service is materially different  from  the  health service the health care plan approved to treat the insured's health care needs;  and  (2) two documents from the available medical and scientific evidence, that the out-of-network health service is likely  to  be  more clinically  beneficial  to  the  insured  than the alternate recommended in-network health  service  and  for  which  the  adverse  risk  of  the requested  health  service  would  likely not be substantially increased over the in-network health service.  (a-2)  An  insured  or  the   insured's   designee   may   appeal   an out-of-network  referral  denial  by  a health care plan by submitting a written statement from the insured's attending physician, who must be  a licensed,  board  certified  or  board  eligible  physician qualified to practice in the specialty area of  practice  appropriate  to  treat  the insured for the health service sought, provided that: (1) the in-network health care provider or providers recommended by the health care plan do not  have the appropriate training and experience to meet the particular health care needs of  the  insured  for  the  health  service;  and  (2) recommends  an out-of-network provider with the appropriate training and experience to meet the particular health care needs of the insured,  and who is able to provide the requested health service.  (b)  A  utilization  review  agent shall establish an expedited appeal process for appeal of an adverse determination involving  (1)  continued or extended health care services, procedures or treatments or additional services  for  an  insured  undergoing  a  course of continued treatment prescribed by a health  care  provider  or  home  health  care  services following  discharge  from  an  inpatient hospital admission pursuant to subsection (c) of section four  thousand  nine  hundred  three  of  this title;  (2)  an  adverse determination in which the health care provider believes an immediate  appeal  is  warranted  except  any  retrospective determination;  or  (3)  potential  court-ordered  mental  health and/or substance use disorder services pursuant to paragraph two of  subsection (b)  of  section  four  thousand  nine hundred three of this title. Such process shall include mechanisms  which  facilitate  resolution  of  the appeal  including but not limited to the sharing of information from the insured's health care provider  and  the  utilization  review  agent  by telephonic  means  or  by  facsimile. The utilization review agent shall provide reasonable access to  its  clinical  peer  reviewer  within  one business  day  of receiving notice of the taking of an expedited appeal. Expedited appeals shall  be  determined  within  two  business  days  of receipt  of  necessary  information  to conduct such appeal except, with respect to inpatient substance use disorder treatment provided  pursuant to  paragraph  three  of  subsection  (c)  of section four thousand nine hundred three of this  title,  expedited  appeals  shall  be  determined within  twenty-four  hours  of receipt of such appeal. Expedited appeals which do not result in a resolution satisfactory to the appealing  party may  be further appealed through the standard appeal process, or through the external appeal process  pursuant  to  section  four  thousand  nine  hundred  fourteen  of  this  article  as  applicable.  Provided that the insured or  the  insured's  health  care  provider  files  an  expedited internal and external appeal within twenty-four hours from receipt of an adverse determination for inpatient substance use disorder treatment for which  coverage  was  provided  while  the  initial  utilization  review determination was pending pursuant to paragraph three of subsection  (c) of section four thousand nine hundred three of this title, a utilization review agent shall not deny on the basis of medical necessity or lack of prior  authorization  such  substance  use  disorder  treatment  while a determination by the utilization review agent or external  appeal  agent is pending.  (c)  A  utilization  review  agent  shall  establish a standard appeal process which includes procedures for appeals to be filed in writing  or by  telephone.  A utilization review agent must establish a period of no less than forty-five days after receipt of notification by  the  insured of  the  initial  utilization  review  determination  and receipt of all necessary information to file the appeal from  said  determination.  The utilization  review  agent  must  provide  written acknowledgment of the filing of the appeal to the appealing party within fifteen days of  such filing  and  shall make a determination with regard to the appeal within thirty days of the receipt  of  necessary  information  to  conduct  the appeal  and,  upon  overturning  the adverse decision, shall comply with subsection (a) of section three thousand two  hundred  twenty-four-a  of this  chapter  as  applicable. The utilization review agent shall notify the  insured,  the  insured's  designee  and,  where  appropriate,   the insured's  health  care provider, in writing of the appeal determination within two business days of the rendering of such determination.   The notice of the appeal determination shall include:  (1) the reasons for the determination; provided, however,  that  where the  adverse determination is upheld on appeal, the notice shall include the clinical rationale for such determination; and  (2) a notice of the insured's right to  an  external  appeal  together with  a  description,  jointly promulgated by the superintendent and the commissioner of health as required pursuant to subsection (e) of section four thousand nine hundred fourteen of this  article,  of  the  external appeal process established pursuant to title two of this article and the time  frames for such external appeals. A utilization review agent shall have procedures for obtaining an  insured's,  or  insured's  designee's, preference  for  receiving  notifications,  which shall be in accordance with  applicable  federal  law  and  with  guidance  developed  by   the superintendent.  Written and telephone notification to an insured or the insured's designee under this section  may  be  provided  by  electronic means  where  the  insured  or  the  insured's designee has informed the insurer in advance of a preference  to  receive  such  notifications  by electronic  means.  A  utilization review agent shall permit the insured and the insured's designee to change the preference at any time. To  the extent  practicable, written and telephone notification to the insured's health care provider shall be transmitted electronically,  in  a  manner and  in  a form agreed upon by the parties. The utilization review agent shall retain documentation of preferred notification methods and present such records to the superintendent upon request.  (d) Both expedited and standard appeals shall  only  be  conducted  by clinical peer reviewers, provided that any such appeal shall be reviewed by  a  clinical  peer reviewer other than the clinical peer reviewer who rendered the adverse determination.  (e) Failure by the utilization review agent to  make  a  determination within the applicable time periods in this section shall be deemed to be a reversal of the utilization review agent's adverse determination.