NY Pub Health L § 4904 (2021)
2021 New York Laws PBH - Public Health Article 49 - Utilization Review and External Appeal Title 1 - Certification of Agents and Utilization Review Process 4904 - Appeal of Adverse Determinations by Utilization Review Agents.

§ 4904. Appeal of adverse determinations by utilization review agents. 1.  An  enrollee,  the  enrollee's  designee  and,  in  connection  with retrospective  adverse  determinations,  an   enrollee's   health   care provider,  may appeal an adverse determination rendered by a utilization review agent.   1-a.  An  enrollee  or  the  enrollee's   designee   may   appeal   an out-of-network denial by a health care plan by submitting: (a) a written statement  from  the  enrollee'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 enrollee  for  the   health   service   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 (b) 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 enrollee  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.   1-b.  An enrollee or the enrollee's designee may appeal a denial of an out-of-network referral by a health care plan by  submitting  a  written statement  from  the  enrollee'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 enrollee  for  the  health  service  sought,  provided  that:  (a)   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 enrollee for the health service; and  (b)  recommends  an  out-of-network  provider  with the appropriate training and experience to meet the particular health care needs of  the enrollee, and who is able to provide the requested health service.   2.  A  utilization  review  agent  shall establish an expedited appeal process for appeal of an adverse determination involving:  (a)  continued  or  extended  health  care  services,  procedures   or treatments or additional services for an enrollee undergoing a course of continued  treatment  prescribed  by  a health care provider home health care services following discharge from an inpatient  hospital  admission pursuant  to  subdivision  three  of section forty-nine hundred three of this title; or  (b) an  adverse  determination  in  which  the  health  care  provider believes  an  immediate  appeal  is  warranted  except any retrospective determination; or  (c)  potential  court-ordered  mental  health  and/or  substance   use disorder  services  pursuant  to  paragraph  (b)  of  subdivision two of section forty-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 enrollee'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 (c) of subdivision three of section forty-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 forty-nine hundred fourteen of this  article  as  applicable. Provided  that the enrollee or the enrollee'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  (c)  of subdivision three of section forty-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.   3. 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 enrollee 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  determination,  shall  comply with  subsection (a) of section three thousand two hundred twenty-four-a of the insurance law as applicable. The utilization review  agent  shall notify the enrollee, the enrollee's designee and, where appropriate, the enrollee'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:  (a) 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  (b) a notice of the enrollee's right to an  external  appeal  together with  a  description,  jointly  promulgated  by the commissioner and the superintendent of financial services as required pursuant to subdivision five of section forty-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 enrollee's, or enrollee's designee's, preference  for  receiving  notifications,  which shall  be  in  accordance  with applicable federal law and with guidance developed by the commissioner. Written and telephone notification to  an enrollee  or  the enrollee's designee under this section may be provided by electronic means where the enrollee or the  enrollee's  designee  has informed  the  organization  in  advance of a preference to receive such notifications by electronic means.  An  organization  shall  permit  the enrollee  and  the  enrollee's  designee to change the preference at any time. To the extent practicable, written and telephone  notification  to the enrollee'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 commissioner upon request.   4.  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.    5.  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.