2023 New York Laws › ISC - Insurance › 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. (a)
The  superintendent shall establish procedures by regulation to randomly
assign an external appeal agent to conduct an external appeal,  provided
that the superintendent may establish a maximum fee which may be charged
for  any  such  external  appeal, or the superintendent may exclude from
such random assignment any external appeal agent  which  charges  a  fee
which he deems to be unreasonable.
(b)  (1)  The  insured  shall have four months to initiate an external
appeal after the insured 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  insured  have
jointly  agreed  to  waive  any internal appeal, or after the insured 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 insured's health care  provider
shall  have  sixty days to initiate an external appeal after the insured
or the insured'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 insured 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 subsection (e) of this section. The insured,
and the insured'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.
(2)  The  external appeal agent shall make a determination with regard
to the appeal within thirty days of the receipt of the request therefor,
submitted in accordance  with  the  superintendent's  instructions.  The
external  appeal  agent shall have the opportunity to request additional
information from the insured, the insured's health care provider and the
insured'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
insured, the insured'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.
(3) Notwithstanding the provisions of paragraphs one and two  of  this
subsection,  if the insured'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 insured, or if the insured is entitled to an
expedited  external appeal pursuant to section 2719 of the 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 insured, the insured'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.
(4)  (A)  For  external appeals requested pursuant to paragraph one of
subsection (b) of section four thousand 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, applicable and 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 insured, and
(v) be admissible in any court proceeding.
(B)  For  external  appeals  requested  pursuant  to  paragraph two of
subsection (b) of section four thousand 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  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:
(a) 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 subsection  (g-7)  of  section
four  thousand  nine  hundred of this article and such other evidence as
the insured, the insured's designee or the insured's attending physician
may present (or upon confirmation that the recommended  treatment  is  a
clinical  trial),  the insured'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 two of subsection (e) of section four thousand nine hundred of
this article)  is  likely  to  be  more  beneficial  than  any  standard
treatment  or  treatments for the insured's condition or disease or, for
rare diseases, that the requested health service or procedure is  likely
to  benefit  the  insured in the treatment of the insured's rare disease
and that such benefit to the insured outweighs the risks of such  health
service  or procedure (or, in the case of a clinical trial, is likely to
benefit the insured in the  treatment  of  the  insured'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
(b) 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 insured, and
(v) be admissable 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 insured 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 insured 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  three  of
subsection  b  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 alternate recommended in-network health
service.
(ii) If a determination is made that the out-of-network health service
is not materially different from the  alternate  recommended  in-network
health  service,  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  alternate  recommended
in-network health service, 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:
(I) be accompanied by a written statement:
(1) that 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 treatment requested by the  insured,  the
alternate  recommended health service proposed by the plan, the clinical
standards of the plan, the information provided concerning the  insured,
the  attending  physician's  recommendation,  the applicable medical and
scientific  evidence,  the  insured's  medical  record,  and  any  other
pertinent  information  that the out-of-network health service is likely
to  be  more  clinically  beneficial  than  the  alternate   recommended
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
(2) uphold the health plan's denial of coverage;
(II)  be  subject  to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan;
(III) be binding on the plan and the insured; and
(IV) be admissible in any court proceeding.
(D) For external appeals  requested  pursuant  to  paragraph  four  of
subsection  (b)  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:
(I)  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
insured, the attending physician's recommendation, the insured'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 insured 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 insured,  is  able  to  provide  the  requested  health
service,  and is likely to produce a more clinically beneficial outcome;
or
(II) 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 insured; and
(v) be admissible in any court proceeding.
(c)  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.
(d) (1) Except as  provided  in  paragraphs  two  and  three  of  this
subsection,  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.
(2) If an insured'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
one of this subsection.
(3)  If  an insured'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 insured's health care provider who requested the external appeal and
shall be made by the health care plan  and  the  insured's  health  care
provider  in  the  manner and subject to the timeframes and requirements
set forth in paragraph one of this subsection; provided,  however,  that
the  superintendent  may, upon a determination 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 commissioner of health, promulgate regulations  to  limit  such
hardship.
(4)  If  an insured's health care provider was acting as the insured'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 superintendent in consultation with the
commissioner  of  health pursuant to subsection (e) of this section. The
superintendent  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 shall make at least two
written requests to the insured to confirm the designation. The  insured
shall  have  two  weeks  to respond to each such request. If the insured
fails to respond to the superintendent within the  specified  timeframe,
the  superintendent  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's
requests within the specified timeframe, the superintendent 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 two and three of this subsection.
(e)  The  superintendent,  in  consultation  with  the commissioner of
health, 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 insured.