§ 4904 — Appeal of adverse determinations by utilization review agents

§ 4904. Appeal of adverse determinations by utilization review agents.\n(a) An insured, the insured's designee and, in connection with\nretrospective adverse determinations, an insured's health care provider,\nmay appeal an adverse determination rendered by a utilization review\nagent.\n (a-1) An insured or the insured's designee may appeal an\nout-of-network denial by a health care plan by submitting: (1) a written\nstatement from the insured's attending physician, who must be a\nlicensed, board certified or board eligible physician qualified to\npractice in the specialty area of practice appropriate to treat the\ninsured for the health services sought, that the requested\nout-of-network health service is materially different from the health\nservice the health care plan approved to treat the insured's health care\nneeds; and (2) two documents from the available medical and scientific\nevidence, that the out-of-network health service is likely to be more\nclinically beneficial to the insured than the alternate recommended\nin-network health service and for which the adverse risk of the\nrequested health service would likely not be substantially increased\nover the in-network health service.\n (a-2) An insured or the insured's designee may appeal an\nout-of-network referral denial by a health care plan by submitting a\nwritten statement from the insured's attending physician, who must be a\nlicensed, board certified or board eligible physician qualified to\npractice in the specialty area of practice appropriate to treat the\ninsured for the health service sought, provided that: (1) the in-network\nhealth care provider or providers recommended by the health care plan do\nnot have the appropriate training and experience to meet the particular\nhealth care needs of the insured for the health service; and (2)\nrecommends an out-of-network provider with the appropriate training and\nexperience to meet the particular health care needs of the insured, and\nwho is able to provide the requested health service.\n (b) A utilization review agent shall establish an expedited appeal\nprocess for appeal of an adverse determination involving (1) continued\nor extended health care services, procedures or treatments or additional\nservices for an insured undergoing a course of continued treatment\nprescribed by a health care provider or home health care services\nfollowing discharge from an inpatient hospital admission pursuant to\nsubsection (c) of section four thousand nine hundred three of this\ntitle; (2) an adverse determination in which the health care provider\nbelieves an immediate appeal is warranted except any retrospective\ndetermination; or (3) potential court-ordered mental health and/or\nsubstance use disorder services pursuant to paragraph two of subsection\n(b) of section four thousand nine hundred three of this title. Such\nprocess shall include mechanisms which facilitate resolution of the\nappeal including but not limited to the sharing of information from the\ninsured's health care provider and the utilization review agent by\ntelephonic means or by facsimile. The utilization review agent shall\nprovide reasonable access to its clinical peer reviewer within one\nbusiness day of receiving notice of the taking of an expedited appeal.\nExpedited appeals shall be determined within two business days of\nreceipt of necessary information to conduct such appeal except, with\nrespect to inpatient substance use disorder treatment provided pursuant\nto paragraph three of subsection (c) of section four thousand nine\nhundred three of this title, expedited appeals shall be determined\nwithin twenty-four hours of receipt of such appeal. Expedited appeals\nwhich do not result in a resolution satisfactory to the appealing party\nmay be further appealed through the standard appeal process, or through\nthe external appeal process pursuant to section four thousand nine\nhundred fourteen of this article as applicable. Provided that the\ninsured or the insured's health care provider files an expedited\ninternal and external appeal within twenty-four hours from receipt of an\nadverse determination for inpatient substance use disorder treatment for\nwhich coverage was provided while the initial utilization review\ndetermination was pending pursuant to paragraph three of subsection (c)\nof section four thousand nine hundred three of this title, a utilization\nreview agent shall not deny on the basis of medical necessity or lack of\nprior authorization such substance use disorder treatment while a\ndetermination by the utilization review agent or external appeal agent\nis pending.\n (c) A utilization review agent shall establish a standard appeal\nprocess which includes procedures for appeals to be filed in writing or\nby telephone. A utilization review agent must establish a period of no\nless than forty-five days after receipt of notification by the insured\nof the initial utilization review determination and receipt of all\nnecessary information to file the appeal from said determination. The\nutilization review agent must provide written acknowledgment of the\nfiling of the appeal to the appealing party within fifteen days of such\nfiling and shall make a determination with regard to the appeal within\nthirty days of the receipt of necessary information to conduct the\nappeal and, upon overturning the adverse decision, shall comply with\nsubsection (a) of section three thousand two hundred twenty-four-a of\nthis chapter as applicable. The utilization review agent shall notify\nthe insured, the insured's designee and, where appropriate, the\ninsured's health care provider, in writing of the appeal determination\nwithin two business days of the rendering of such determination.\n The notice of the appeal determination shall include:\n (1) the reasons for the determination; provided, however, that where\nthe adverse determination is upheld on appeal, the notice shall include\nthe clinical rationale for such determination; and\n (2) a notice of the insured's right to an external appeal together\nwith a description, jointly promulgated by the superintendent and the\ncommissioner of health as required pursuant to subsection (e) of section\nfour thousand nine hundred fourteen of this article, of the external\nappeal process established pursuant to title two of this article and the\ntime frames for such external appeals. A utilization review agent shall\nhave procedures for obtaining an insured's, or insured's designee's,\npreference for receiving notifications, which shall be in accordance\nwith applicable federal law and with guidance developed by the\nsuperintendent. Written and telephone notification to an insured or the\ninsured's designee under this section may be provided by electronic\nmeans where the insured or the insured's designee has informed the\ninsurer in advance of a preference to receive such notifications by\nelectronic means. A utilization review agent shall permit the insured\nand the insured's designee to change the preference at any time. To the\nextent practicable, written and telephone notification to the insured's\nhealth care provider shall be transmitted electronically, in a manner\nand in a form agreed upon by the parties. The utilization review agent\nshall retain documentation of preferred notification methods and present\nsuch records to the superintendent upon request.\n (d) Both expedited and standard appeals shall only be conducted by\nclinical peer reviewers, provided that any such appeal shall be reviewed\nby a clinical peer reviewer other than the clinical peer reviewer who\nrendered the adverse determination.\n (e) Failure by the utilization review agent to make a determination\nwithin the applicable time periods in this section shall be deemed to be\na reversal of the utilization review agent's adverse determination.\n