2023 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.