2023 New York Laws › PBH - Public Health › Article 49 - Utilization Review and External Appeal › Title 2 - Right to External Appeal › 4914 - Procedures for External Appeals of Adverse Determinations.

§  4914. Procedures for external appeals of adverse determinations. 1.
The commissioner shall establish procedures by  regulation  to  randomly
assign  an external appeal agent to conduct an external appeal, provided
that the commissioner may establish a maximum fee which may  be  charged
for  any such external appeal, or the commissioner may exclude from such
random assignment any external appeal agent which charges  a  fee  which
she deems to be unreasonable.
2.  (a)  The  enrollee  shall have four months to initiate an external
appeal after the enrollee receives notice from the health care plan,  or
such  plan's  utilization review agent if applicable, of a final adverse
determination or denial or after both the plan  and  the  enrollee  have
jointly  agreed  to  waive any internal appeal, or after the enrollee is
deemed to have exhausted or is not required  to  complete  any  internal
appeal  pursuant  to  section  2719 of the Public Health Service Act, 42
U.S.C. § 300gg-19. Where applicable, the enrollee's health care provider
shall have sixty days to initiate an external appeal after the  enrollee
or  the  enrollee's health care provider, as applicable, receives notice
from the health care plan, or such plan's utilization  review  agent  if
applicable, of a final adverse determination or denial or after both the
plan  and the enrollee have jointly agreed to waive any internal appeal.
Such request shall be in writing in accordance with the instructions and
in such form  prescribed  by  subdivision  five  of  this  section.  The
enrollee,  and  the  enrollee's  health  care provider where applicable,
shall have the  opportunity  to  submit  additional  documentation  with
respect  to  such  appeal  to  the  external  appeal  agent  within  the
applicable  time  period  above;  provided  however   that   when   such
documentation  represents  a material change from the documentation upon
which the utilization review agent based its  adverse  determination  or
upon  which the health plan based its denial, the health plan shall have
three business days to consider such documentation and amend or  confirm
such adverse determination.
(b)  The external appeal agent shall make a determination with respect
to the appeal within thirty days of the receipt of the request therefor,
submitted  in  accordance  with  the  commissioner's  instructions.  The
external  appeal  agent shall have the opportunity to request additional
information from the enrollee, the enrollee's health care  provider  and
the  enrollee's health care plan within such thirty-day period, in which
case the agent shall  have  up  to  five  additional  business  days  if
necessary  to  make  such determination. The external appeal agent shall
notify  the  enrollee,  the  enrollee's  health  care   provider   where
appropriate,  and  the  health  care  plan,  in  writing,  of the appeal
determination  within  two  business  days  of  the  rendering  of  such
determination.
(c)  Notwithstanding  the provisions of paragraphs (a) and (b) of this
subdivision, if the enrollee's attending physician states that  a  delay
in  providing  the health care service would pose an imminent or serious
threat to the health of the enrollee, or if the enrollee is entitled  to
an  expedited  external  appeal  pursuant to section 2719 of the federal
Public Health Service Act, 42 U.S.C. §  300gg-19,  the  external  appeal
shall  be completed within no more than seventy-two hours of the request
therefor and the external  appeal  agent  shall  make  every  reasonable
attempt  to  immediately notify the enrollee, the enrollee's health care
provider where appropriate, and the health plan of its determination  by
telephone  or facsimile, followed immediately by written notification of
such determination.
(d) (A) For external appeals requested pursuant to  paragraph  (a)  of
subdivision  two  of  section  forty-nine hundred ten of this title, the
external appeal agent shall review the utilization review agent's  final

adverse  determination  and,  in  accordance with the provisions of this
title, shall make a determination as to whether  the  health  care  plan
acted  reasonably  and  with  sound  medical  judgment  and  in the best
interest  of  the  patient.  When  the  external  appeal agent makes its
determination, it shall consider the clinical standards of the plan, the
information provided concerning the patient, the  attending  physician's
recommendation,  and  applicable  generally accepted practice guidelines
developed by the federal government, national  or  professional  medical
societies,  boards  and  associations.  Provided that such determination
shall:
(i) be conducted only by one or a greater odd number of clinical  peer
reviewers,
(ii)  be  accompanied  by a notice of appeal determination which shall
include the reasons for the determination; provided, however, that where
the final adverse determination is upheld on appeal,  the  notice  shall
include the clinical rationale, if any, for such determination,
(iii)  be  subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan,
(iv) be binding on the plan and the enrollee, and
(v) be admissible in any court proceeding.
(B) For external  appeals  requested  pursuant  to  paragraph  (b)  of
subdivision  two  of  section  forty-nine hundred ten of this title, the
external appeal agent  shall  review  the  proposed  health  service  or
procedure for which coverage has been denied and, in accordance with the
provisions  of  this  title  and  the  external agent's experimental and
investigational treatment  review  plan,  make  a  determination  as  to
whether  the  patient costs of such health service or procedure shall be
covered by the health care plan; provided that such determination shall:
(i) be conducted by a panel of  three  or  a  greater  odd  number  of
clinical peer reviewers,
(ii) be accompanied by a written statement:
(1) that the patient costs of the proposed health service or procedure
shall  be covered by the health care plan either: when a majority of the
panel of reviewers determines,  based  upon  review  of  the  applicable
medical  and  scientific evidence and, in connection with rare diseases,
the physician's certification required by subdivision seven-g of section
forty-nine hundred of this  article  and  such  other  evidence  as  the
enrollee,  the enrollee's designee or the enrollee's attending physician
may present (or upon confirmation that the recommended  treatment  is  a
clinical  trial), the enrollee's medical record, and any other pertinent
information, that the proposed health service or treatment (including  a
pharmaceutical  product  within  the  meaning  of  subparagraph  (B)  of
paragraph (b) of subdivision five of section forty-nine hundred of  this
article)  is likely to be more beneficial than any standard treatment or
treatments  for  the  enrollee's  condition  or  disease  or,  for  rare
diseases,  that  the  requested health service or procedure is likely to
benefit the enrollee in the treatment of the enrollee's rare disease and
that such benefit to the enrollee outweighs the  risks  of  such  health
service  or procedure (or, in the case of a clinical trial, is likely to
benefit the enrollee in the treatment of  the  enrollee's  condition  or
disease);  or  when  a  reviewing  panel  is  evenly  divided  as  to  a
determination concerning coverage of the health service or procedure, or
(2) upholding the health plan's denial of coverage,
(iii) be subject to the terms and conditions generally  applicable  to
benefits under the evidence of coverage under the health care plan,
(iv) be binding on the plan and the enrollee, and
(v) be admissible in any court proceeding.
As  used  in  this  subparagraph (B) with respect to a clinical trial,
patient costs shall include all costs of  health  services  required  to
provide  treatment to the enrollee according to the design of the trial.
Such costs shall not include the costs of any investigational  drugs  or
devices  themselves,  the  cost  of any nonhealth services that might be
required for the  enrollee  to  receive  the  treatment,  the  costs  of
managing  the  research,  or  costs which would not be covered under the
policy for noninvestigational treatments.
(C) For external  appeals  requested  pursuant  to  paragraph  (c)  of
subdivision  two of section four thousand nine hundred ten of this title
relating to an out-of-network denial, the external  appeal  agent  shall
review  the  utilization review agent's final adverse determination and,
in  accordance  with  the  provisions  of  this  title,  shall  make   a
determination  as  to whether the out-of-network health service shall be
covered by the health plan.
(i) The external appeal agent shall assign one clinical peer  reviewer
to  make a determination as to whether the out-of-network health service
is materially different from the health service available in-network.
(ii) If a determination is made that the out-of-network health service
is not materially different from the health service available in-network
the out-of-network health service shall not be  covered  by  the  health
plan.
(iii)  If  a  determination  is  made  that  the out-of-network health
service is  materially  different  from  the  health  service  available
in-network,  the  external  appeal  agent  shall  assign a panel with an
additional two or a greater odd number of clinical peer reviewers  which
shall  make  a  determination  as  to  whether the out-of-network health
service shall  be  covered  by  the  health  plan;  provided  that  such
determination shall:
(1) be accompanied by a written statement that:
(I)  the  out-of-network health service shall be covered by the health
care plan either: when a majority of the panel of reviewers  determines,
upon  review  of  the  health  service  requested  by  the enrollee, the
alternate recommended health service proposed by the plan, the  clinical
standards of the plan, the information provided concerning the enrollee,
the  attending  physician's  recommendation,  the applicable medical and
scientific evidence,  the  enrollee's  medical  record,  and  any  other
pertinent  information  that the out-of-network health service is likely
to be more clinically beneficial than  the  proposed  in-network  health
service  and  the  adverse  risk  of  the requested health service would
likely  not  be  substantially  increased  over  the  in-network  health
service; or
(II) uphold the health plan's denial of coverage.
(2)  be  subject  to  the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan;
(3) be binding on the plan and the enrollee; and
(4) be admissible in any court proceeding.
(D) For external  appeals  requested  pursuant  to  paragraph  (d)  of
subdivision  two of section four thousand nine hundred ten of this title
relating to an out-of-network referral denial, the external appeal agent
shall review the utilization review agent's final adverse  determination
and,  in  accordance  with  the  provisions  of this title, shall make a
determination as to whether the out-of-network referral shall be covered
by the health plan; provided that such determination shall:
(i) be conducted only by one or a greater odd number of clinical  peer
reviewers;
(ii) be accompanied by a written statement:
(1)  that  the  out-of-network referral shall be covered by the health
care plan either when the  reviewer  or  a  majority  of  the  panel  of
reviewers  determines, upon review of the training and experience of the
in-network health care provider or providers proposed by the  plan,  the
training  and  experience  of the requested out-of-network provider, the
clinical standards of the plan, the information provided concerning  the
enrollee,  the  attending  physician's  recommendation,  the  enrollee's
medical record, and any other pertinent  information,  that  the  health
plan  does  not  have  a  provider  with  the  appropriate  training and
experience to meet the particular health care needs of an  enrollee  who
is   able  to  provide  the  requested  health  service,  and  that  the
out-of-network provider has the appropriate training and  experience  to
meet the particular health care needs of an enrollee, is able to provide
the requested health service, and is likely to produce a more clinically
beneficial outcome; or
(2) upholding the health plan's denial of coverage;
(iii)  be  subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan;
(iv) be binding on the plan and the enrollee; and
(v) be admissible in any court proceeding.
3. No external appeal agent or clinical peer  reviewer  conducting  an
external  appeal  shall  be  liable  in  damages  to  any person for any
opinions rendered  by  such  external  appeal  agent  or  clinical  peer
reviewer  upon  completion  of  an external appeal conducted pursuant to
this section, unless such opinion was rendered in bad faith or  involved
gross negligence.
4.  (a)  Except  as  provided  in  paragraphs  (b)  and  (c)  of  this
subdivision, payment for an external appeal shall be the  responsibility
of  the health care plan. The health care plan shall make payment to the
external appeal agent within forty-five days from the  date  the  appeal
determination  is  received by the health care plan, and the health care
plan shall be obligated  to  pay  such  amount  together  with  interest
thereon calculated at a rate which is the greater of the rate set by the
commissioner  of  taxation  and  finance for corporate taxes pursuant to
paragraph one of subsection (e) of section one  thousand  ninety-six  of
the  tax  law  or twelve percent per annum, to be computed from the date
the bill was required to be paid, in the event that payment is not  made
within such forty-five days.
(b)  If an enrollee's health care provider requests an external appeal
of a concurrent adverse determination  and  the  external  appeal  agent
upholds  the  health care plan's determination in whole, payment for the
external appeal shall be made by the health care provider in the  manner
and  subject  to  the timeframes and requirements set forth in paragraph
(a) of this subdivision.
(c) If an enrollee's health care provider requests an external  appeal
of  a  concurrent  adverse  determination  and the external appeal agent
upholds the health care plan's determination in part,  payment  for  the
external appeal shall be evenly divided between the health care plan and
the  enrollee's  health  care provider who requested the external appeal
and shall be made by the health care plan and the enrollee's health care
provider in the manner and subject to the  timeframes  and  requirements
set  forth in paragraph (a) of this subdivision; provided, however, that
the commissioner may, upon a  determination  by  the  superintendent  of
financial  services  that health care plans or health care providers are
experiencing a substantial hardship as  a  result  of  payment  for  the
external  appeal  when the external appeal agent upholds the health care
plan's determination in part, in consultation with  the  superintendent,
promulgate regulations to limit such hardship.
(d) If an enrollee's health care provider was acting as the enrollee's
designee,  payment  for  the external appeal shall be made by the health
care plan. The external appeal and any designation shall be submitted on
a standard form developed by the commissioner in consultation  with  the
superintendent  of  financial  services  pursuant to subdivision five of
this section. The superintendent of financial services  shall  have  the
authority  upon receipt of an external appeal to confirm the designation
or  request  other  information  as  necessary,  in   which   case   the
superintendent  of  financial  services  shall make at least two written
requests to the enrollee to confirm the designation. The enrollee  shall
have two weeks to respond to each such request. If the enrollee fails to
respond to the superintendent of financial services within the specified
timeframe,  the  superintendent  of  financial  services  shall make two
written requests to the health care provider to file an external  appeal
on  his or her own behalf. The health care provider shall have two weeks
to respond to each such request. If the health care  provider  does  not
respond  to the superintendent of financial services requests within the
specified timeframe, the  superintendent  of  financial  services  shall
reject  the  appeal.  If  the  health  care  provider  responds  to  the
superintendent's requests, payment for the external appeal shall be made
in accordance with paragraphs (b) and (c) of this subdivision.
5. The  commissioner,  in  consultation  with  the  superintendent  of
financial   services,   shall   promulgate   by  regulation  a  standard
description of  the  external  appeal  process  established  under  this
section,  which  shall  provide a standard form and instructions for the
initiation of an external appeal by an enrollee.