Section 4904. Appeal of adverse determinations by utilization review agents

(a)   An  insured,  the  insured's  designee  and,  in  connection  with
  retrospective adverse determinations, an insured's health care provider,
  may appeal an adverse determination rendered  by  a  utilization  review
  agent.
    (a-1)   An   insured   or   the   insured's  designee  may  appeal  an
  out-of-network denial by a health care plan by submitting: (1) a written
  statement  from  the  insured'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
  insured   for   the   health   services   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  (2) 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  insured  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.
    * (b) A utilization review agent shall establish an  expedited  appeal
  process  for  appeal of an adverse determination involving (1) continued
  or extended health care services, procedures or treatments or additional
  services for an insured  undergoing  a  course  of  continued  treatment
  prescribed  by a health care provider or (2) an adverse determination in
  which the health care provider believes an immediate appeal is warranted
  except any  retrospective  determination.  Such  process  shall  include
  mechanisms  which  facilitate resolution of the appeal including but not
  limited to the sharing of information from  the  insured'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. 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 four thousand nine hundred fourteen of this
  article as applicable.
    * NB Effective until January 1, 2010
    * (b) A utilization review agent shall establish an  expedited  appeal
  process  for  appeal of an adverse determination involving (1) continued
  or extended health care services, procedures or treatments or additional
  services for an insured  undergoing  a  course  of  continued  treatment
  prescribed  by  a  health  care  provider  or  home health care services
  following discharge from an inpatient  hospital  admission  pursuant  to
  subsection  (c)  of  section  four  thousand  nine hundred three of this
  article or (2)  an  adverse  determination  in  which  the  health  care
  provider   believes   an   immediate  appeal  is  warranted  except  any
  retrospective determination. Such process shall include mechanisms which
  facilitate resolution of the appeal including but  not  limited  to  the
  sharing  of  information from the insured'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.   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  four  thousand  nine  hundred  fourteen  of this article as
  applicable.
    * NB Effective January 1, 2010
    (c)  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  insured
  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
  sixty days of the  receipt  of  necessary  information  to  conduct  the
  appeal.  The  utilization  review  agent  shall  notify the insured, the
  insured's designee and, where appropriate,  the  insured'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:
    (1) 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
    (2) a notice of the insured's right to  an  external  appeal  together
  with  a  description,  jointly promulgated by the superintendent and the
  commissioner of health as required pursuant to subsection (e) of section
  four thousand 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.
    (d)  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.
    (e)  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.