§ 4802 — Grievance procedure

§ 4802. Grievance procedure. (a) An insurer which offers a managed\ncare product shall establish and maintain a grievance procedure with\nregard to such managed care product. Pursuant to such procedure,\ninsureds shall be entitled to seek a review of determinations by the\ninsurer with regard to such managed care product, other than\ndeterminations subject to the provisions of article forty-nine of this\nchapter.\n (b) (1) An insurer shall provide to all insureds written notice of the\ngrievance procedure in the contract and at any time that the insurer\ndenies access to a referral or determines that a requested benefit is\nnot covered pursuant to the terms of the contract; provided, however,\nthat nothing herein shall be deemed to require a health care provider to\nprovide such notice. In the event that an insurer denies a service as an\nadverse determination as defined in article forty-nine of this chapter,\nthe insurer shall inform the insured or the insured's designee of the\nappeal rights provided for in article forty-nine of this chapter.\n (2) The notice to an insured describing the grievance process shall\nexplain:\n (i) the process for filing a grievance with the insurer;\n (ii) the timeframes within which a grievance determination must be\nmade; and\n (iii) the right of an insured to designate a representative to file a\ngrievance on behalf of the insured.\n (3) The insurer shall assure that the grievance procedure is\nreasonably accessible to those who do not speak English.\n (c) (1) The insurer may require an insured to file a grievance in\nwriting, by letter or by a grievance form which shall be made available\nby the insurer, and which shall conform to applicable standards for\nreadability.\n (2) Notwithstanding the provisions of paragraph (1) of this\nsubsection, an insured may submit an oral grievance in connection with\n(i) a denial of, or failure to pay for, a referral; or (ii) a\ndetermination as to whether a benefit is covered pursuant to the terms\nof the insured's contract. In connection with the submission of an oral\ngrievance, an insurer may require that the insured sign a written\nacknowledgment of the grievance, prepared by the insurer summarizing the\nnature of the grievance. Such acknowledgment shall be mailed promptly to\nthe insured, who shall sign and return the acknowledgment, with any\namendments, in order to initiate the grievance. The grievance\nacknowledgment shall prominently state that the insured must sign and\nreturn the acknowledgment to initiate the grievance. If an insurer does\nnot require such a signed acknowledgment, an oral grievance shall be\ninitiated at the time of the telephone call.\n (3) Upon receipt of a grievance, the insurer shall provide notice\nspecifying what information must be provided to the insurer in order to\nrender a decision on the grievance.\n (4) (i) An insurer shall designate personnel to accept the filing of\nan insured's grievance by toll-free telephone no less than forty hours\nper week during normal business hours and, shall have a telephone system\navailable to take calls during other than normal business hours and\nshall respond to all such calls no less than one business day after the\ncall was recorded.\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, an insurer may, in the alternative, designate personnel to\naccept the filing of an insured's grievance by toll-free telephone no\nless than forty hours per week during normal business hours and, in the\ncase of grievances subject to subparagraph (1) of subsection (d) of this\nsection, on a twenty-four hour a day, seven day a week basis.\n (d) Within fifteen business days of receipt of the grievance, the\ninsurer shall provide written acknowledgment of the grievance, including\nthe name, address and telephone number of the individual or department\ndesignated by the insurer to respond to the grievance. All grievances\nshall be resolved in an expeditious manner, and in any event, no more\nthan:\n (1) forty-eight hours after the receipt of all necessary information\nwhen a delay would significantly increase the risk to an insured's\nhealth;\n (2) thirty days after the receipt of all necessary information in the\ncase of requests for referrals or determinations concerning whether a\nrequested benefit is covered pursuant to the contract; and\n (3) forty-five days after the receipt of all necessary information in\nall other instances.\n (e) The insurer shall designate one or more qualified personnel to\nreview the grievance; provided further, that when the grievance pertains\nto clinical matters, the personnel shall include, but not be limited to,\none or more licensed, certified or registered health care professionals.\n (f) The notice of a determination of the grievance shall be made in\nwriting to the insured or to the insured's designee. In the case of a\ndetermination made in conformance with subparagraph (1) of subsection\n(d) of this section, notice shall be made by telephone directly to the\ninsured with written notice to follow within three business days.\n (g) The notice of a determination shall include:\n (1) the detailed reasons for the determination;\n (2) in cases where the determination has a clinical basis, the\nclinical rationale for the determination; and\n (3) the procedures for the filing of an appeal of the determination,\nincluding a form for the filing of such an appeal.\n (h) An insured or an insured's designee shall have not less than sixty\nbusiness days after receipt of notice of the grievance determination to\nfile a written appeal, which may be submitted by letter or by a form\nsupplied by the insurer.\n (i) Within fifteen business days of receipt of the appeal, the insurer\nshall provide written acknowledgment of the appeal, including the name,\naddress and telephone number of the individual designated by the insurer\nto respond to the appeal and what additional information, if any, must\nbe provided in order for the insurer to render a decision.\n (j) The determination of an appeal on a clinical matter must be made\nby personnel qualified to review the appeal, including licensed,\ncertified or registered health care professionals who did not make the\ninitial determination, at least one of whom must be a clinical peer\nreviewer as defined in article forty-nine of this chapter. The\ndetermination of an appeal on a matter which is not clinical shall be\nmade by qualified personnel at a higher level than the personnel who\nmade the grievance determination.\n (k) The insurer shall seek to resolve all appeals in the most\nexpeditious manner and shall make a determination and provide notice no\nmore than:\n (1) two business days after the receipt of all necessary information\nwhen a delay would significantly increase the risk to an insured's\nhealth; and\n (2) thirty business days after the receipt of all necessary\ninformation in all other instances.\n (l) The notice of a determination on an appeal shall include:\n (1) the detailed reasons for the determination; and\n (2) in cases where the determination has a clinical basis, the\nclinical rationale for the determination.\n (m) An insurer shall not retaliate or take any discriminatory action\nagainst an insured because an insured has filed a grievance or appeal.\n (n) An insurer shall maintain a file on each grievance and associated\nappeal, if any, that shall include the date the grievance was filed; a\ncopy of the grievance, if any; the date of receipt of and a copy of the\ninsured's acknowledgment of the grievance, if any; the determination\nmade by the insurer including the date of the determination, and the\ntitles and, in the case of a clinical determination, the credentials of\nthe insurer's personnel who reviewed the grievance. If an insured files\nan appeal of the grievance, the file shall include the date and a copy\nof the insured's appeal, the determination made by the insurer including\nthe date of the determination and the titles and, in the case of\nclinical determinations, the credentials of the insurer's personnel who\nreviewed the appeal.\n (o) An insurer shall have procedures for obtaining an insured's, or\ninsured's designee's, preference for receiving notifications, which\nshall be in accordance with applicable federal law and with guidance\ndeveloped by the superintendent. Written and telephone notification to\nan insured or the insured's designee under this section may be provided\nby electronic means where the insured or the insured's designee has\ninformed the insurer in advance of a preference to receive such\nnotifications by electronic means. An insurer shall permit the insured\nand the insured's designee to change the preference at any time. The\ninsurer shall retain documentation of preferred notification methods and\npresent such records to the superintendent upon request.\n (p) The rights and remedies conferred in this article upon insureds\nshall be cumulative and in addition to and not in lieu of any other\nrights or remedies available under law.\n