2023 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.