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§4914
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§4914 . Procedures for external appeals of adverse determinations.
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§4914(a)
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(a) The superintendent shall establish procedures by regulation to randomly assign an external appeal agent to conduct an external appeal, provided that the superintendent may establish a maximum fee which may be charged for any such external appeal, or the superintendent may exclude from such random assignment any external appeal agent which charges a fee which he deems to be unreasonable.
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§4914(b)
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(b)
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§4914(b)(1)
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(1) The insured shall have 45 days to initiate an external appeal after the insured receives notice from the health care plan, or such plan's utilization review agent if applicable, of a final adverse determination or denial or after both the plan and the enrollee have jointly agreed to waive any internal appeal. Such request shall be in writing in accordance with the instructions and in such form prescribed by subsection (this §)(e) . The insured, and the insured's health care provider where applicable, shall have the opportunity to submit additional documentation with respect to such appeal to the external appeal agent within such 45- day period; provided however that when such documentation represents a material change from the documentation upon which the utilization review agent based its adverse determination or upon which the health plan based its denial, the health plan shall have 3 business days to consider such documentation and amend or confirm such adverse determination.
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§4914(b)(2)
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(2) The external appeal agent shall make a determination with regard to the appeal within 30 days of the receipt of the insured's request therefor, submitted in accordance with the superintendent's instructions. The external appeal agent shall have the opportunity to request additional information from the insured, the insured's health care provider and the insured's health care plan within such 3 day period, in which case the agent shall have up to 5 additional business days if necessary to make such determination. The external appeal agent shall notify the insured and the health care plan, in writing, of the appeal determination within 2 business days of the rendering of such determination.
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§4914(b)(3)
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(3) Notwithstanding the provisions of paragraphs (this sub§)(1) and (this sub§)(2) ,if the insured's attending physician states that a delay in providing the health care service would pose an imminent or serious threat to the health of the insured, the external appeal shall be completed within 3 days of the request therefor and the external appeal agent shall make every reasonable attempt to immediately notify the insured and the health plan of its determination by telephone or facsimile, followed immediately by written notification of such determination.
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§4914(b)(4)
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(4)
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§4914(b)(4)(A)
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(A) For external appeals requested pursuant to paragraph §4910(b)(1) of this title, the external appeal agent shall review the utilization review agent's final adverse determination and, in accordance with the provisions of this title, shall make a determination as to whether the health care plan acted reasonably and with sound medical judgment and in the best interest of the patient. When the external appeal agent makes its determination, it shall consider the clinical standards of the plan, the information provided concerning the patient, the attending physician's recommendation, applicable and generally accepted practice guidelines developed by the federal government, national or professional medical societies, boards and associations. Provided that such determination shall:
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§4914(b)(4)(A)(i)
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(i) be conducted only by 1 or a greater odd number of clinical peer reviewers,
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§4914(b)(4)(A)(ii)
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(ii) be accompanied by a notice of appeal determination which shall include the reasons for the determination; provided, however, that where the final adverse determination is upheld on appeal, the notice shall include the clinical rationale, if any, for such determination,
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§4914(b)(4)(A)(iii)
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(iii) be subject to the terms and conditions generally applicable to benefits under the evidence of coverage under the health care plan,
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§4914(b)(4)(A)(iv)
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(iv) be binding on the plan and the insured, and
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§4914(b)(4)(A)(v)
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(v) be admissible in any court proceeding.
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§4914(b)(4)(B)
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(B) For external appeals requested pursuant to paragraph §4910(b)(2) of this title, the external appeal agent shall review the proposed health service or procedure for which coverage has been denied and, in accordance with the provisions of this title and the external agent's investigational treatment review plan, make a determination as to whether the patient costs of such health service or procedure shall be covered by the health care plan; provided that such determination shall:
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§4914(b)(4)(B)(i)
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(i) be conducted by a panel of 3 or a greater odd number of clinical peer reviewers,
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§4914(b)(4)(B)(ii)
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(ii) be accompanied by a written statement:
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§4914(a)
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(a) that the patient costs of the proposed health service or procedure shall be covered by the health care plan either: when a majority of the panel of reviewers determines, upon review of the applicable medical and scientific evidence (or upon confirmation that the recommended treatment is a clinical trial), the insured's medical record, and any other pertinent information, that the proposed health service or treatment (including a pharmaceutical product within the meaning of subparagraph sectione2B 4900 this article is likely to be more beneficial than any standard treatment or treatments for the insured's life-threatening or disabling condition or disease (or, in the case a clinical trial, is likely to benefit the insured in the treatment the insured's condition or disease); or when a reviewing panel is evenly divided as to a determination concerning coverage the health service or procedure, or
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§4914(b)
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(b) upholding the health plan's denial of coverage;
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§4914(b)
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(iii) be subject to the terms and conditions generally applicable to benefits under the evidence of coverage under the health care plan,
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§4914(b)
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(iv) be binding on the plan and the insured, and
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§4914(b)
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(v) be admissable in any court proceeding. As used in this subparagraph B with respect to a clinical trial, patient costs shall include all costs of health services required to provide treatment to the insured according to the design of the trial. Such costs shall not include the costs of any investigational drugs or devices themselves, the cost of any nonhealth services that might be required for the insured to receive the treatment, the costs of managing the research, or costs which would not be covered under the policy for noninvestigational treatments.
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§4914(b)
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(C) For external appeals requested pursuant to paragraph subsection3 b of §4910 of this title relating to an out -of- network denial, the external appeal agent shall review the utilization review agent's final adverse determination and, in accordance with the provisions of this title, shall make a determination as to whether the out -of- network health service shall be covered by the health plan.
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§4914(b)
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(i) The external appeal agent shall assign 1 clinical peer reviewer to make a determination as to whether the out -of- network health service is materially different from the alternate recommended in-network health service.
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§4914(b)
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(ii) If a determination is made that the out -of- network health service is not materially different from the alternate recommended in-network health service, the out -of- network health service shall not be covered by the health plan.
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§4914(b)
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(iii) If a determination is made that the out -of- network health service is materially different from the alternate recommended in-network health service, the external appeal agent shall assign a panel with an additional 2 or a greater odd number of clinical peer reviewers, which shall make a determination as to whether the out -of- network health service shall be covered by the health plan; provided that such determination shall:
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§4914(b)
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(I) be accompanied by a written statement:
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§4914(b)(1)
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(1) that the out -of- network health service shall be covered by the health care plan either: when a majority of the panel of reviewers determines, upon review of the treatment requested by the insured, the alternate recommended health service proposed by the plan, the clinical standards of the plan, the information provided concerning the insured, the attending physician's recommendation, the applicable medical and scientific evidence, the insured's medical record, and any other pertinent information that the out -of- network health service is likely to be more clinically beneficial than the alternate recommended in-network health service and the adverse risk of the requested health service would likely not be substantially increased over the in-network health service; or
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§4914(b)(2)
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(2) uphold the health plan's denial of coverage;
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§4914(b)(2)
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(II) be subject to the terms and conditions generally applicable to benefits under the evidence of coverage under the health care plan;
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§4914(b)(2)
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(III) be binding on the plan and the insured; and
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§4914(b)(2)
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(IV) be admissible in any court proceeding.
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§4914(c)
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(c) No external appeal agent or clinical peer reviewer conducting an external appeal shall be liable in damages to any person for any opinions rendered by such external appeal agent or clinical peer reviewer upon completion of an external appeal conducted pursuant to (this §) ,unless such opinion was rendered in bad faith or involved gross negligence.
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§4914(d)
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(d) Payment for an external appeal shall be the responsibility of the health care plan. The health care plan shall make payment to the external appeal agent within 45 days, from the date the appeal determination is received by the health care plan, and the health care plan shall be obligated to pay such amount together with interest thereon calculated at a rate which is the greater of the rate set by the commissioner of taxation and finance for corporate taxes pursuant to paragraph §1096(e)(1) of the tax law or 12% per annum, to be computed from the date the bill was required to be paid, in the event that payment is not made within such 45 days.
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§4914(e)
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(e) The superintendent, in consultation with the commissioner of health, shall promulgate by regulation a standard description of the external appeal process established under (this §) ,which shall provide a standard form and instructions for the initiation of an external appeal by an insured. Source Data downloaded: 2009-04-10 09: 17: 48; Processed: 2009-05-08 15: 36: 16
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