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This entry was published on 2020-04-17
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SECTION 4904
Appeal of adverse determinations by utilization review agents
Public Health (PBH) CHAPTER 45, ARTICLE 49, TITLE 1
§ 4904. Appeal of adverse determinations by utilization review agents.
1. An enrollee, the enrollee's designee and, in connection with
retrospective adverse determinations, an enrollee's health care
provider, may appeal an adverse determination rendered by a utilization
review agent.

1-a. An enrollee or the enrollee's designee may appeal an
out-of-network denial by a health care plan by submitting: (a) a written
statement from the enrollee's attending physician, who must be a
licensed, board certified or board eligible physician qualified to
practice in the specialty area of practice appropriate to treat the
enrollee for the health service sought, that the requested
out-of-network health service is materially different from the health
service the health care plan approved to treat the insured's health care
needs; and (b) two documents from the available medical and scientific
evidence that the out-of-network health service is likely to be more
clinically beneficial to the enrollee than the alternate recommended
in-network health service and for which the adverse risk of the
requested health service would likely not be substantially increased
over the in-network health service.

1-b. An enrollee or the enrollee's designee may appeal a denial of an
out-of-network referral by a health care plan by submitting a written
statement from the enrollee's attending physician, who must be a
licensed, board certified or board eligible physician qualified to
practice in the specialty area of practice appropriate to treat the
enrollee for the health service sought, provided that: (a) the
in-network health care provider or providers recommended by the health
care plan do not have the appropriate training and experience to meet
the particular health care needs of the enrollee for the health service;
and (b) recommends an out-of-network provider with the appropriate
training and experience to meet the particular health care needs of the
enrollee, and who is able to provide the requested health service.

2. A utilization review agent shall establish an expedited appeal
process for appeal of an adverse determination involving:

(a) continued or extended health care services, procedures or
treatments or additional services for an enrollee undergoing a course of
continued treatment prescribed by a health care provider home health
care services following discharge from an inpatient hospital admission
pursuant to subdivision three of section forty-nine hundred three of
this title; or

(b) an adverse determination in which the health care provider
believes an immediate appeal is warranted except any retrospective
determination; or

(c) potential court-ordered mental health and/or substance use
disorder services pursuant to paragraph (b) of subdivision two of
section forty-nine hundred three of this title. Such process shall
include mechanisms which facilitate resolution of the appeal including
but not limited to the sharing of information from the enrollee's health
care provider and the utilization review agent by telephonic means or by
facsimile. The utilization review agent shall provide reasonable access
to its clinical peer reviewer within one business day of receiving
notice of the taking of an expedited appeal. Expedited appeals shall be
determined within two business days of receipt of necessary information
to conduct such appeal except, with respect to inpatient substance use
disorder treatment provided pursuant to paragraph (c) of subdivision
three of section forty-nine hundred three of this title, expedited
appeals shall be determined within twenty-four hours of receipt of such
appeal. Expedited appeals which do not result in a resolution
satisfactory to the appealing party may be further appealed through the
standard appeal process, or through the external appeal process pursuant
to section forty-nine hundred fourteen of this article as applicable.
Provided that the enrollee or the enrollee's health care provider files
an expedited internal and external appeal within twenty-four hours from
receipt of an adverse determination for inpatient substance use disorder
treatment for which coverage was provided while the initial utilization
review determination was pending pursuant to paragraph (c) of
subdivision three of section forty-nine hundred three of this title, a
utilization review agent shall not deny on the basis of medical
necessity or lack of prior authorization such substance use disorder
treatment while a determination by the utilization review agent or
external appeal agent is pending.

3. A utilization review agent shall establish a standard appeal
process which includes procedures for appeals to be filed in writing or
by telephone. A utilization review agent must establish a period of no
less than forty-five days after receipt of notification by the enrollee
of the initial utilization review determination and receipt of all
necessary information to file the appeal from said determination. The
utilization review agent must provide written acknowledgment of the
filing of the appeal to the appealing party within fifteen days of such
filing and shall make a determination with regard to the appeal within
thirty days of the receipt of necessary information to conduct the
appeal and, upon overturning the adverse determination, shall comply
with subsection (a) of section three thousand two hundred twenty-four-a
of the insurance law as applicable. The utilization review agent shall
notify the enrollee, the enrollee's designee and, where appropriate, the
enrollee's health care provider, in writing, of the appeal determination
within two business days of the rendering of such determination. The
notice of the appeal determination shall include:

(a) the reasons for the determination; provided, however, that where
the adverse determination is upheld on appeal, the notice shall include
the clinical rationale for such determination; and

(b) a notice of the enrollee's right to an external appeal together
with a description, jointly promulgated by the commissioner and the
superintendent of financial services as required pursuant to subdivision
five of section forty-nine hundred fourteen of this article, of the
external appeal process established pursuant to title two of this
article and the time frames for such external appeals. A utilization
review agent shall have procedures for obtaining an enrollee's, or
enrollee's designee's, preference for receiving notifications, which
shall be in accordance with applicable federal law and with guidance
developed by the commissioner. Written and telephone notification to an
enrollee or the enrollee's designee under this section may be provided
by electronic means where the enrollee or the enrollee's designee has
informed the organization in advance of a preference to receive such
notifications by electronic means. An organization shall permit the
enrollee and the enrollee's designee to change the preference at any
time. To the extent practicable, written and telephone notification to
the enrollee's health care provider shall be transmitted electronically,
in a manner and in a form agreed upon by the parties. The utilization
review agent shall retain documentation of preferred notification
methods and present such records to the commissioner upon request.

4. Both expedited and standard appeals shall only be conducted by
clinical peer reviewers, provided that any such appeal shall be reviewed
by a clinical peer reviewer other than the clinical peer reviewer who
rendered the adverse determination.

5. Failure by the utilization review agent to make a determination
within the applicable time periods in this section shall be deemed to be
a reversal of the utilization review agent's adverse determination.