§ 4904 — Appeal of adverse determinations by utilization review agents

§ 4904. Appeal of adverse determinations by utilization review agents.\n1. An enrollee, the enrollee's designee and, in connection with\nretrospective adverse determinations, an enrollee's health care\nprovider, may appeal an adverse determination rendered by a utilization\nreview agent.\n 1-a. An enrollee or the enrollee's designee may appeal an\nout-of-network denial by a health care plan by submitting: (a) a written\nstatement from the enrollee'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\nenrollee for the health service 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 (b) 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 enrollee 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 1-b. An enrollee or the enrollee's designee may appeal a denial of an\nout-of-network referral by a health care plan by submitting a written\nstatement from the enrollee'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\nenrollee for the health service sought, provided that: (a) the\nin-network health care provider or providers recommended by the health\ncare plan do not have the appropriate training and experience to meet\nthe particular health care needs of the enrollee for the health service;\nand (b) recommends an out-of-network provider with the appropriate\ntraining and experience to meet the particular health care needs of the\nenrollee, and who is able to provide the requested health service.\n 2. A utilization review agent shall establish an expedited appeal\nprocess for appeal of an adverse determination involving:\n (a) continued or extended health care services, procedures or\ntreatments or additional services for an enrollee undergoing a course of\ncontinued treatment prescribed by a health care provider home health\ncare services following discharge from an inpatient hospital admission\npursuant to subdivision three of section forty-nine hundred three of\nthis title; or\n (b) an adverse determination in which the health care provider\nbelieves an immediate appeal is warranted except any retrospective\ndetermination; or\n (c) potential court-ordered mental health and/or substance use\ndisorder services pursuant to paragraph (b) of subdivision two of\nsection forty-nine hundred three of this title. Such process shall\ninclude mechanisms which facilitate resolution of the appeal including\nbut not limited to the sharing of information from the enrollee's health\ncare provider and the utilization review agent by telephonic means or by\nfacsimile. The utilization review agent shall provide reasonable access\nto its clinical peer reviewer within one business day of receiving\nnotice of the taking of an expedited appeal. Expedited appeals shall be\ndetermined within two business days of receipt of necessary information\nto conduct such appeal except, with respect to inpatient substance use\ndisorder treatment provided pursuant to paragraph (c) of subdivision\nthree of section forty-nine hundred three of this title, expedited\nappeals shall be determined within twenty-four hours of receipt of such\nappeal. Expedited appeals which do not result in a resolution\nsatisfactory to the appealing party may be further appealed through the\nstandard appeal process, or through the external appeal process pursuant\nto section forty-nine hundred fourteen of this article as applicable.\nProvided that the enrollee or the enrollee's health care provider files\nan expedited internal and external appeal within twenty-four hours from\nreceipt of an adverse determination for inpatient substance use disorder\ntreatment for which coverage was provided while the initial utilization\nreview determination was pending pursuant to paragraph (c) of\nsubdivision three of section forty-nine hundred three of this title, a\nutilization review agent shall not deny on the basis of medical\nnecessity or lack of prior authorization such substance use disorder\ntreatment while a determination by the utilization review agent or\nexternal appeal agent is pending.\n 3. 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 enrollee\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 determination, shall comply\nwith subsection (a) of section three thousand two hundred twenty-four-a\nof the insurance law as applicable. The utilization review agent shall\nnotify the enrollee, the enrollee's designee and, where appropriate, the\nenrollee's health care provider, in writing, of the appeal determination\nwithin two business days of the rendering of such determination. The\nnotice of the appeal determination shall include:\n (a) 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 (b) a notice of the enrollee's right to an external appeal together\nwith a description, jointly promulgated by the commissioner and the\nsuperintendent of financial services as required pursuant to subdivision\nfive of section forty-nine hundred fourteen of this article, of the\nexternal appeal process established pursuant to title two of this\narticle and the time frames for such external appeals. A utilization\nreview agent shall have procedures for obtaining an enrollee's, or\nenrollee's designee's, preference for receiving notifications, which\nshall be in accordance with applicable federal law and with guidance\ndeveloped by the commissioner. Written and telephone notification to an\nenrollee or the enrollee's designee under this section may be provided\nby electronic means where the enrollee or the enrollee's designee has\ninformed the organization in advance of a preference to receive such\nnotifications by electronic means. An organization shall permit the\nenrollee and the enrollee's designee to change the preference at any\ntime. To the extent practicable, written and telephone notification to\nthe enrollee's health care provider shall be transmitted electronically,\nin a manner and in a form agreed upon by the parties. The utilization\nreview agent shall retain documentation of preferred notification\nmethods and present such records to the commissioner upon request.\n 4. 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 5. 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