§ 4914 — Procedures for external appeals of adverse determinations

New York § 4914

• Jurisdiction: New York
• Law PBH: Public Health
• Title 2: Right to External Appeal
• Art. 49: Utilization Review and External Appeal

Text

§ 4914. Procedures for external appeals of adverse determinations. 1.\nThe commissioner shall establish procedures by regulation to randomly\nassign an external appeal agent to conduct an external appeal, provided\nthat the commissioner may establish a maximum fee which may be charged\nfor any such external appeal, or the commissioner may exclude from such\nrandom assignment any external appeal agent which charges a fee which\nshe deems to be unreasonable.\n 2. (a) The enrollee shall have four months to initiate an external\nappeal after the enrollee receives notice from the health care plan, or\nsuch plan's utilization review agent if applicable, of a final adverse\ndetermination or denial or after both the plan and the enrollee have\njointly agreed to waive any internal appeal, or after the enrollee is\ndeemed to have exhausted or is not required to complete any internal\nappeal pursuant to section 2719 of the Public Health Service Act, 42\nU.S.C. § 300gg-19. Where applicable, the enrollee's health care provider\nshall have sixty days to initiate an external appeal after the enrollee\nor the enrollee's health care provider, as applicable, receives notice\nfrom the health care plan, or such plan's utilization review agent if\napplicable, of a final adverse determination or denial or after both the\nplan and the enrollee have jointly agreed to waive any internal appeal.\nSuch request shall be in writing in accordance with the instructions and\nin such form prescribed by subdivision five of this section. The\nenrollee, and the enrollee's health care provider where applicable,\nshall have the opportunity to submit additional documentation with\nrespect to such appeal to the external appeal agent within the\napplicable time period above; provided however that when such\ndocumentation represents a material change from the documentation upon\nwhich the utilization review agent based its adverse determination or\nupon which the health plan based its denial, the health plan shall have\nthree business days to consider such documentation and amend or confirm\nsuch adverse determination.\n (b) The external appeal agent shall make a determination with respect\nto the appeal within thirty days of the receipt of the request therefor,\nsubmitted in accordance with the commissioner's instructions. The\nexternal appeal agent shall have the opportunity to request additional\ninformation from the enrollee, the enrollee's health care provider and\nthe enrollee's health care plan within such thirty-day period, in which\ncase the agent shall have up to five additional business days if\nnecessary to make such determination. The external appeal agent shall\nnotify the enrollee, the enrollee's health care provider where\nappropriate, and the health care plan, in writing, of the appeal\ndetermination within two business days of the rendering of such\ndetermination.\n (c) Notwithstanding the provisions of paragraphs (a) and (b) of this\nsubdivision, if the enrollee's attending physician states that a delay\nin providing the health care service would pose an imminent or serious\nthreat to the health of the enrollee, or if the enrollee is entitled to\nan expedited external appeal pursuant to section 2719 of the federal\nPublic Health Service Act, 42 U.S.C. § 300gg-19, the external appeal\nshall be completed within no more than seventy-two hours of the request\ntherefor and the external appeal agent shall make every reasonable\nattempt to immediately notify the enrollee, the enrollee's health care\nprovider where appropriate, and the health plan of its determination by\ntelephone or facsimile, followed immediately by written notification of\nsuch determination.\n (d) (A) For external appeals requested pursuant to paragraph (a) of\nsubdivision two of section forty-nine hundred ten of this title, the\nexternal appeal agent shall review the utilization review agent's final\nadverse determination and, in accordance with the provisions of this\ntitle, shall make a determination as to whether the health care plan\nacted reasonably and with sound medical judgment and in the best\ninterest of the patient. When the external appeal agent makes its\ndetermination, it shall consider the clinical standards of the plan, the\ninformation provided concerning the patient, the attending physician's\nrecommendation, and applicable generally accepted practice guidelines\ndeveloped by the federal government, national or professional medical\nsocieties, boards and associations. Provided that such determination\nshall:\n (i) be conducted only by one or a greater odd number of clinical peer\nreviewers,\n (ii) be accompanied by a notice of appeal determination which shall\ninclude the reasons for the determination; provided, however, that where\nthe final adverse determination is upheld on appeal, the notice shall\ninclude the clinical rationale, if any, for such determination,\n (iii) be subject to the terms and conditions generally applicable to\nbenefits under the evidence of coverage under the health care plan,\n (iv) be binding on the plan and the enrollee, and\n (v) be admissible in any court proceeding.\n (B) For external appeals requested pursuant to paragraph (b) of\nsubdivision two of section forty-nine hundred ten of this title, the\nexternal appeal agent shall review the proposed health service or\nprocedure for which coverage has been denied and, in accordance with the\nprovisions of this title and the external agent's experimental and\ninvestigational treatment review plan, make a determination as to\nwhether the patient costs of such health service or procedure shall be\ncovered by the health care plan; provided that such determination shall:\n (i) be conducted by a panel of three or a greater odd number of\nclinical peer reviewers,\n (ii) be accompanied by a written statement:\n (1) that the patient costs of the proposed health service or procedure\nshall be covered by the health care plan either: when a majority of the\npanel of reviewers determines, based upon review of the applicable\nmedical and scientific evidence and, in connection with rare diseases,\nthe physician's certification required by subdivision seven-g of section\nforty-nine hundred of this article and such other evidence as the\nenrollee, the enrollee's designee or the enrollee's attending physician\nmay present (or upon confirmation that the recommended treatment is a\nclinical trial), the enrollee's medical record, and any other pertinent\ninformation, that the proposed health service or treatment (including a\npharmaceutical product within the meaning of subparagraph (B) of\nparagraph (b) of subdivision five of section forty-nine hundred of this\narticle) is likely to be more beneficial than any standard treatment or\ntreatments for the enrollee's condition or disease or, for rare\ndiseases, that the requested health service or procedure is likely to\nbenefit the enrollee in the treatment of the enrollee's rare disease and\nthat such benefit to the enrollee outweighs the risks of such health\nservice or procedure (or, in the case of a clinical trial, is likely to\nbenefit the enrollee in the treatment of the enrollee's condition or\ndisease); or when a reviewing panel is evenly divided as to a\ndetermination concerning coverage of the health service or procedure, or\n (2) upholding the health plan's denial of coverage,\n (iii) be subject to the terms and conditions generally applicable to\nbenefits under the evidence of coverage under the health care plan,\n (iv) be binding on the plan and the enrollee, and\n (v) be admissible in any court proceeding.\n As used in this subparagraph (B) with respect to a clinical trial,\npatient costs shall include all costs of health services required to\nprovide treatment to the enrollee according to the design of the trial.\nSuch costs shall not include the costs of any investigational drugs or\ndevices themselves, the cost of any nonhealth services that might be\nrequired for the enrollee to receive the treatment, the costs of\nmanaging the research, or costs which would not be covered under the\npolicy for noninvestigational treatments.\n (C) For external appeals requested pursuant to paragraph (c) of\nsubdivision two of section four thousand nine hundred ten of this title\nrelating to an out-of-network denial, the external appeal agent shall\nreview the utilization review agent's final adverse determination and,\nin accordance with the provisions of this title, shall make a\ndetermination as to whether the out-of-network health service shall be\ncovered by the health plan.\n (i) The external appeal agent shall assign one clinical peer reviewer\nto make a determination as to whether the out-of-network health service\nis materially different from the health service available in-network.\n (ii) If a determination is made that the out-of-network health service\nis not materially different from the health service available in-network\nthe out-of-network health service shall not be covered by the health\nplan.\n (iii) If a determination is made that the out-of-network health\nservice is materially different from the health service available\nin-network, the external appeal agent shall assign a panel with an\nadditional two or a greater odd number of clinical peer reviewers which\nshall make a determination as to whether the out-of-network health\nservice shall be covered by the health plan; provided that such\ndetermination shall:\n (1) be accompanied by a written statement that:\n (I) the out-of-network health service shall be covered by the health\ncare plan either: when a majority of the panel of reviewers determines,\nupon review of the health service requested by the enrollee, the\nalternate recommended health service proposed by the plan, the clinical\nstandards of the plan, the information provided concerning the enrollee,\nthe attending physician's recommendation, the applicable medical and\nscientific evidence, the enrollee's medical record, and any other\npertinent information that the out-of-network health service is likely\nto be more clinically beneficial than the proposed in-network health\nservice and the adverse risk of the requested health service would\nlikely not be substantially increased over the in-network health\nservice; or\n (II) uphold the health plan's denial of coverage.\n (2) be subject to the terms and conditions generally applicable to\nbenefits under the evidence of coverage under the health care plan;\n (3) be binding on the plan and the enrollee; and\n (4) be admissible in any court proceeding.\n (D) For external appeals requested pursuant to paragraph (d) of\nsubdivision two of section four thousand nine hundred ten of this title\nrelating to an out-of-network referral denial, the external appeal agent\nshall review the utilization review agent's final adverse determination\nand, in accordance with the provisions of this title, shall make a\ndetermination as to whether the out-of-network referral shall be covered\nby the health plan; provided that such determination shall:\n (i) be conducted only by one or a greater odd number of clinical peer\nreviewers;\n (ii) be accompanied by a written statement:\n (1) that the out-of-network referral shall be covered by the health\ncare plan either when the reviewer or a majority of the panel of\nreviewers determines, upon review of the training and experience of the\nin-network health care provider or providers proposed by the plan, the\ntraining and experience of the requested out-of-network provider, the\nclinical standards of the plan, the information provided concerning the\nenrollee, the attending physician's recommendation, the enrollee's\nmedical record, and any other pertinent information, that the health\nplan does not have a provider with the appropriate training and\nexperience to meet the particular health care needs of an enrollee who\nis able to provide the requested health service, and that the\nout-of-network provider has the appropriate training and experience to\nmeet the particular health care needs of an enrollee, is able to provide\nthe requested health service, and is likely to produce a more clinically\nbeneficial outcome; or\n (2) upholding the health plan's denial of coverage;\n (iii) be subject to the terms and conditions generally applicable to\nbenefits under the evidence of coverage under the health care plan;\n (iv) be binding on the plan and the enrollee; and\n (v) be admissible in any court proceeding.\n 3. No external appeal agent or clinical peer reviewer conducting an\nexternal appeal shall be liable in damages to any person for any\nopinions rendered by such external appeal agent or clinical peer\nreviewer upon completion of an external appeal conducted pursuant to\nthis section, unless such opinion was rendered in bad faith or involved\ngross negligence.\n 4. (a) Except as provided in paragraphs (b) and (c) of this\nsubdivision, payment for an external appeal shall be the responsibility\nof the health care plan. The health care plan shall make payment to the\nexternal appeal agent within forty-five days from the date the appeal\ndetermination is received by the health care plan, and the health care\nplan shall be obligated to pay such amount together with interest\nthereon calculated at a rate which is the greater of the rate set by the\ncommissioner of taxation and finance for corporate taxes pursuant to\nparagraph one of subsection (e) of section one thousand ninety-six of\nthe tax law or twelve percent per annum, to be computed from the date\nthe bill was required to be paid, in the event that payment is not made\nwithin such forty-five days.\n (b) If an enrollee's health care provider requests an external appeal\nof a concurrent adverse determination and the external appeal agent\nupholds the health care plan's determination in whole, payment for the\nexternal appeal shall be made by the health care provider in the manner\nand subject to the timeframes and requirements set forth in paragraph\n(a) of this subdivision.\n (c) If an enrollee's health care provider requests an external appeal\nof a concurrent adverse determination and the external appeal agent\nupholds the health care plan's determination in part, payment for the\nexternal appeal shall be evenly divided between the health care plan and\nthe enrollee's health care provider who requested the external appeal\nand shall be made by the health care plan and the enrollee's health care\nprovider in the manner and subject to the timeframes and requirements\nset forth in paragraph (a) of this subdivision; provided, however, that\nthe commissioner may, upon a determination by the superintendent of\nfinancial services that health care plans or health care providers are\nexperiencing a substantial hardship as a result of payment for the\nexternal appeal when the external appeal agent upholds the health care\nplan's determination in part, in consultation with the superintendent,\npromulgate regulations to limit such hardship.\n (d) If an enrollee's health care provider was acting as the enrollee's\ndesignee, payment for the external appeal shall be made by the health\ncare plan. The external appeal and any designation shall be submitted on\na standard form developed by the commissioner in consultation with the\nsuperintendent of financial services pursuant to subdivision five of\nthis section. The superintendent of financial services shall have the\nauthority upon receipt of an external appeal to confirm the designation\nor request other information as necessary, in which case the\nsuperintendent of financial services shall make at least two written\nrequests to the enrollee to confirm the designation. The enrollee shall\nhave two weeks to respond to each such request. If the enrollee fails to\nrespond to the superintendent of financial services within the specified\ntimeframe, the superintendent of financial services shall make two\nwritten requests to the health care provider to file an external appeal\non his or her own behalf. The health care provider shall have two weeks\nto respond to each such request. If the health care provider does not\nrespond to the superintendent of financial services requests within the\nspecified timeframe, the superintendent of financial services shall\nreject the appeal. If the health care provider responds to the\nsuperintendent's requests, payment for the external appeal shall be made\nin accordance with paragraphs (b) and (c) of this subdivision.\n 5. The commissioner, in consultation with the superintendent of\nfinancial services, shall promulgate by regulation a standard\ndescription of the external appeal process established under this\nsection, which shall provide a standard form and instructions for the\ninitiation of an external appeal by an enrollee.\n