Section 4900. Definitions

For purposes of this article:
    (a)  "Adverse  determination"  means  a determination by a utilization
  review agent that an admission, extension of stay, or other health  care
  service, upon review based on the information provided, is not medically
  necessary.
    (b) "Clinical peer reviewer" means:
    (1) for purposes of title one of this article:
    (A)  a  physician  who  possesses  a  current and valid non-restricted
  license to practice medicine; or
    (B) a health care professional other than a licensed physician who:
    (i) where applicable, possesses a  current  and  valid  non-restricted
  license,  certificate  or  registration  or,  where  no  provision for a
  license, certificate or registration  exists,  is  credentialed  by  the
  national accrediting body appropriate to the profession; and
    (ii)  is  in  the same profession and same or similar specialty as the
  health care provider who typically  manages  the  medical  condition  or
  disease  or  provides the health care service or treatment under review;
  and
    (2) for purposes of title two of this article:
    (A) a physician who:
    (i) possesses a current and valid non-restricted license  to  practice
  medicine;
    (ii)  where  applicable,  is  board certified or board eligible in the
  same or similar specialty as the  health  care  provider  who  typically
  manages  the  medical  condition  or disease or provides the health care
  service or treatment under appeal;
    (iii) has been practicing in such area of specialty for a period of at
  least five years; and
    (iv) is knowledgeable about the health care service or treatment under
  appeal; or
    (B) a health care professional other than a licensed physician who:
    (i) where applicable, possesses a  current  and  valid  non-restricted
  license, certificate or registration;
    (ii)  where  applicable,  is  credentialed by the national accrediting
  body appropriate to the profession in the same profession  and  same  or
  similar  specialty as the health care provider who typically manages the
  medical condition or disease or provides  the  health  care  service  or
  treatment under appeal;
    (iii) has been practicing in such area of specialty for a period of at
  least five years;
    (iv) is knowledgeable about the health care service or treatment under
  appeal; and
    (v)  where  applicable  to  such  health  care professional's scope of
  practice, is clinically supported by a physician who possesses a current
  and valid non-restricted license to practice medicine.
    (3)   Nothing   herein   shall   be   construed    to    change    any
  statutorily-defined scope of practice.
    (b-1)  "Clinical  standards"  means those guidelines and standards set
  forth in the utilization review plan by  the  utilization  review  agent
  whose adverse determination is under appeal.
    (b-2)  "Clinical  trial"  means  a  peer-reviewed study plan which has
  been:
    (1) reviewed and approved by a qualified institutional  review  board,
  and
    (2)  approved by one of the National Institutes of Health (NIH), or an
  NIH  cooperative  group  or  an  NIH  center,  or  the  Food  and   Drug
  Administration  in the form of an investigational new drug exemption, or
  the  federal   Department   of   Veteran   Affairs,   or   a   qualified

  nongovernmental  research  entity  as identified in guidelines issued by
  individual NIH Institutes for center support grants, or an institutional
  review board of a  facility  which  has  a  multiple  project  assurance
  approved by the Office of Protection from Research Risks of the National
  Institutes of Health.
    As used in this subsection, the term "cooperative groups" means formal
  networks  of  facilities  that collaborate on research projects and have
  established NIH-approved peer review  programs  operating  within  their
  groups;  and  that  include, but are not limited to, the National Cancer
  Institute (NCI) Clinical Cooperative Groups, the NCI Community  Clinical
  Oncology Program (CCOP), the AIDS Clinical Trials Groups (ACTG), and the
  Community Programs for Clinical Research in AIDS (CPCRA).
    (b-3)  "Disabling  condition  or disease" means a condition or disease
  which, according to the current diagnosis of  the  enrollee's  attending
  physician,  is  consistent  with  the  definition  of  "disabled person"
  pursuant to subdivision five of section two hundred eight of the  social
  services law.
    (c) "Emergency condition" means a medical or behavioral condition, the
  onset  of  which  is  sudden,  that  manifests  itself  by  symptoms  of
  sufficient severity, including severe pain, that  a  prudent  layperson,
  possessing an average knowledge of medicine and health, could reasonably
  expect  the  absence  of  immediate  medical  attention to result in (1)
  placing the health of  the  person  afflicted  with  such  condition  in
  serious  jeopardy,  or in the case of a behavioral condition placing the
  health of such  person  or  others  in  serious  jeopardy;  (2)  serious
  impairment to such person's bodily functions; (3) serious dysfunction of
  any bodily organ or part of such person; or (4) serious disfigurement of
  such person.
    (d) "Insured" means a person subject to utilization review.
    (d-1) "Experimental and investigational treatment review plan" means:
    (1)  a  description of the process for developing the written clinical
  review criteria used in rendering an  experimental  and  investigational
  treatment review determination; and
    (2) a description of the qualifications and experience of the clinical
  peers  who  developed  the  criteria,  who  are responsible for periodic
  evaluation of the criteria, and who  use  the  written  clinical  review
  criteria   in   the  process  of  reviewing  proposed  experimental  and
  investigational health services and procedures.
    (d-2) "External appeal" means  an  appeal  conducted  by  an  external
  appeal agent, pursuant to section four thousand nine hundred fourteen of
  this article.
    (d-3)  "External  appeal  agent"  means  an  entity  certified  by the
  superintendent pursuant to section four thousand nine hundred eleven  of
  this article.
    (d-4)  "Final  adverse  determination"  means an adverse determination
  which has been upheld by a utilization review agent with  respect  to  a
  proposed  health  care  service  following  a  standard  appeal,  or  an
  expedited appeal where applicable, pursuant  to  section  four  thousand
  nine hundred four of this title.
    (d-5)   "Health  care  plan"  means  an  insurer  subject  to  article
  thirty-two or forty-three of this chapter, or any organization  licensed
  under article forty-three of this chapter.
    (e)  (1) For purposes of this title and for appeals requested pursuant
  to paragraph one of subsection (b) of section four thousand nine hundred
  ten of title two of this article, "health care service" means:
    (A) health care procedures, treatments or services
    (i) provided by a facility licensed pursuant to article  twenty-eight,
  thirty-six,  forty-four  or  forty-seven  of  the  public  health law or

  pursuant to article nineteen, twenty-three, thirty-one or thirty-two  of
  the mental hygiene law; or
    (ii) provided by a health care professional; and
    (B)  the  provision  of pharmaceutical products or services or durable
  medical equipment.
    (2) For purposes of appeals requested pursuant  to  paragraph  two  of
  subsection (b) of section four thousand nine hundred ten of title two of
  this   article,  "health  care  services"  shall  mean  experimental  or
  investigational procedures, treatments or services, including:
    (A) services provided within a clinical trial, and
    (B) the provision of a pharmaceutical product pursuant to prescription
  by the enrollee's attending physician for a use other  than  those  uses
  for which such pharmaceutical product has been approved for marketing by
  the federal Food and Drug Administration;
  to the extent that coverage for such services are prohibited by law from
  being excluded under the plan.
    Provided  that nothing in this subsection shall be construed to define
  what  are  covered  services  pursuant  to  a  subscriber  contract   or
  governmental health benefit program.
    (f)  "Health  care  professional"  means  an  appropriately  licensed,
  registered or certified health care professional pursuant to title eight
  of the education law or a health care professional comparably  licensed,
  registered or certified by another state.
    (g)  "Health  care  provider"  means  a  health care professional or a
  facility  licensed  pursuant  to   article   twenty-eight,   thirty-six,
  forty-four  or  forty-seven  of  the  public  health  law  or a facility
  licensed pursuant  to  article  nineteen,  twenty-three,  thirty-one  or
  thirty-two of the mental hygiene law.
    (g-1)  "Life-threatening  condition  or  disease" means a condition or
  disease which, according to the  current  diagnosis  of  the  enrollee's
  attending  physician,  has  a high probability of causing the enrollee's
  death.
    (g-2) "Material familial affiliation"  means  any  relationship  as  a
  spouse, child, parent, sibling, spouse's parent, spouse's child, child's
  parent, child's spouse, or sibling's spouse.
    (g-3) "Material financial affiliation" means any financial interest of
  more than five percent of total annual revenue or total annual income of
  an  external  appeal  agent or officer, director, or management employee
  thereof; or clinical  peer  reviewer  employed  or  engaged  thereby  to
  conduct  any  external appeal. The term "material financial affiliation"
  shall not include revenue received from a health care  plan  by  (1)  an
  external  appeal agent to conduct an external appeal pursuant to section
  four thousand nine hundred fourteen of title two of this article, or (2)
  a clinical peer reviewer for health services rendered to enrollees.
    (g-4) "Material professional affiliation" means any  physician-patient
  relationship,  any partnership or employment relationship, a shareholder
  or similar ownership interest in  a  professional  corporation,  or  any
  independent contractor arrangement that constitutes a material financial
  affiliation   with  any  expert  or  any  officer  or  director  of  the
  independent organization.
    (g-5) "Medical and scientific evidence" means the following sources:
    (1) peer-reviewed scientific studies published  in,  or  accepted  for
  publication   by,  medical  journals  that  meet  nationally  recognized
  requirements for scientific manuscripts and that submit  most  of  their
  published  articles  for  review  by  experts  who  are  not part of the
  editorial staff;
    (2) peer-reviewed medical literature, including literature relating to
  therapies reviewed and approved  by  a  qualified  institutional  review

  board,  biomedical  compendia and other medical literature that meet the
  criteria of the National  Institute  of  Health's  National  Library  of
  Medicine  for  indexing  in Index Medicus, Excerpta Medicus, Medline and
  MEDLARS database Health Services Technology Assessment Research;
    (3) peer-reviewed abstracts accepted for presentation at major medical
  association meetings;
    (4)   peer-reviewed  literature  shall  not  include  publications  or
  supplements to publications sponsored  to  a  significant  extent  by  a
  pharmaceutical manufacturing company or medical device manufacturer;
    (5)  medical  journals recognized by the secretary of Health and Human
  Services, under section 1861 (t)(2) of the federal Social Security Act;
    (6) the following standard reference compendia:
    (A) the American Hospital Formulary Service - Drug Information;
    (B) the American Medical Association Drug Evaluation;
    (C) the American Dental Association Accepted Dental Therapeutics; and
    (D) the United States Pharmacopeia - Drug Information;
    (7) findings, studies, or research conducted by or under the  auspices
  of   federal  government  agencies  and  nationally  recognized  federal
  research institutes including the federal Agency for Health Care  Policy
  and  Research, National Institutes of Health, National Cancer Institute,
  National Academy of  Sciences,  Health  Care  Financing  Administration,
  Congressional  Office  of  Technology Assessment, and any national board
  recognized by the National Institutes  of  Health  for  the  purpose  of
  evaluating the medical value of health services.
    (g-6)  "Out-of-network  denial"  means  a  denial under a managed care
  product as defined in subsection (c)  of  section  four  thousand  eight
  hundred  one  of  this  chapter  of  a  request for pre-authorization to
  receive a particular health service from an out-of-network  provider  on
  the  basis  that  such  out-of-network  health service is not materially
  different than the health service available in-network. The notice of an
  out-of-network denial provided to an insured shall  include  information
  explaining  what  information the insured must submit in order to appeal
  the out-of-network denial pursuant to subsection (a-1) of  section  four
  thousand  nine  hundred  four  of this article. An out-of-network denial
  under this subsection does not constitute an  adverse  determination  as
  defined  in  this  article.  Notwithstanding any other provision of this
  subsection, an out-of-network denial shall not be construed to include a
  denial for a referral to an out-of-network provider on the basis that  a
  health  care  provider is available in-network to provide the particular
  health service requested by the insured.
    * (g-7) "Rare disease" means a life threatening or disabling condition
  or disease that (1)(A) is currently or has been subject  to  a  research
  study  by  the  National  Institutes  of  Health  Rare Diseases Clinical
  Research Network; or (B) affects fewer than two hundred thousand  United
  States  residents  per  year;  and  (2) for which there does not exist a
  standard health service or procedure covered by  the  health  care  plan
  that  is more clinically beneficial than the requested health service or
  treatment. A physician, other than  the  insured's  treating  physician,
  shall certify in writing that the condition is a rare disease as defined
  in  this  subsection.  The  certifying  physician  shall  be a licensed,
  board-certified or board-eligible physician who specializes in the  area
  of  practice  appropriate  to  treat  the  insured's  rare  disease. The
  certification shall provide either: (1) that the insured's rare  disease
  is  currently  or  has  been subject to a research study by the National
  Institutes of Health Rare Diseases Clinical  Research  Network;  or  (2)
  that  the insured's rare disease affects fewer than two hundred thousand
  United States residents  per  year.  The  certification  shall  rely  on
  medical  and scientific evidence to support the requested health service

  or procedure, if such evidence exists, and  shall  include  a  statement
  that, based on the physician's credible experience, there is no standard
  treatment that is likely to be more clinically beneficial to the insured
  than  the requested health service or procedure and the requested health
  service or procedure is likely to benefit the insured in  the  treatment
  of  the  insured's  rare  disease  and  that such benefit to the insured
  outweighs the risks of such health service or procedure. The  certifying
  physician   shall   disclose  any  material  financial  or  professional
  relationship with the  provider  of  the  requested  health  service  or
  procedure  as part of the application for external appeal of denial of a
  rare disease treatment. If the provision of the requested health service
  or procedure at a health care facility requires  prior  approval  of  an
  institutional  review board, an insured or insured's designee shall also
  submit such approval as part of the external appeal application.
    * NB Effective January 1, 2010
    (h) "Utilization review" means the review to determine whether  health
  care  services  that  have  been  provided,  are  being  provided or are
  proposed to be provided to  a  patient,  whether  undertaken  prior  to,
  concurrent  with  or  subsequent  to  the  delivery of such services are
  medically necessary. For the  purposes  of  this  article  none  of  the
  following shall be considered utilization review:
    (1)  Denials  based  on  failure to obtain health care services from a
  designated  or  approved  health  care  provider  as  required  under  a
  contract;
    (2)  Where  any  determination  is  rendered  pursuant  to subdivision
  three-a of section twenty-eight hundred seven-c  of  the  public  health
  law;
    (3)  The  review  of  the  appropriateness  of  the  application  of a
  particular coding to a patient, including the  assignment  of  diagnosis
  and procedure;
    (4)  Any  issues relating to the determination of the amount or extent
  of payment other than determinations to deny payment based on an adverse
  determination; and
    (5) Any determination of any coverage issues other than whether health
  care services are or were medically necessary.
    (i) "Utilization review agent" means any insurer  subject  to  article
  thirty-two  or forty-three of this chapter and any municipal cooperative
  health benefit plan certified pursuant to article  forty-seven  of  this
  chapter  performing  utilization  review and any independent utilization
  review agent performing utilization  review  under  contract  with  such
  insurer or municipal cooperative health benefit plan.
    (j)  "Utilization review plan" means: (1) a description of the process
  for developing the written clinical review criteria; (2)  a  description
  of  the  types  of  written  clinical  information  which the plan might
  consider in its clinical review, including but not limited to, a set  of
  specific written clinical review criteria; (3) a description of practice
  guidelines  and standards used by a utilization review agent in carrying
  out a  determination  of  medical  necessity;  (4)  the  procedures  for
  scheduled review and evaluation of the written clinical review criteria;
  and (5) a description of the qualifications and experience of the health
  care  professionals  who developed the criteria, who are responsible for
  periodic evaluation of the criteria and of the health care professionals
  or others who use the written clinical review criteria in the process of
  utilization review.