Section 4914. Procedures for external appeals of adverse determinations

1.
  The commissioner shall establish procedures by  regulation  to  randomly
  assign  an external appeal agent to conduct an external appeal, provided
  that the commissioner may establish a maximum fee which may  be  charged
  for  any such external appeal, or the commissioner may exclude from such
  random assignment any external appeal agent which charges  a  fee  which
  she deems to be unreasonable.
    2. (a) The enrollee shall have forty-five days to initiate an external
  appeal  after the enrollee 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 subdivision five of this section. The enrollee,  and  the  enrollee'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  forty-five-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  three  business  days  to  consider such
  documentation and amend or confirm such adverse determination.
    * (b) The external  appeal  agent  shall  make  a  determination  with
  respect  to  the  appeal  within  thirty  days  of  the  receipt  of the
  enrollee's  request  therefor,  submitted   in   accordance   with   the
  commissioner's  instructions.  The  external appeal agent shall have the
  opportunity to request additional information  from  the  enrollee,  the
  enrollee's  health  care  provider  and  the enrollee's health care plan
  within such thirty-day period, in which case the agent shall have up  to
  five  additional  business days if necessary to make such determination.
  The external appeal agent shall notify the enrollee and the health  care
  plan,  in  writing, of the appeal determination within two business days
  of the rendering of such determination.
    * NB Effective until January 1, 2010
    * (b) The external  appeal  agent  shall  make  a  determination  with
  respect  to  the appeal within thirty days of the receipt of the request
  therefor, submitted in accordance with the commissioner's  instructions.
  The  external  appeal  agent  shall  have  the  opportunity  to  request
  additional information from the enrollee,  the  enrollee's  health  care
  provider  and  the  enrollee's  health  care plan within such thirty-day
  period, in which case  the  agent  shall  have  up  to  five  additional
  business  days  if  necessary  to  make such determination. The external
  appeal agent shall notify  the  enrollee,  the  enrollee's  health  care
  provider where appropriate, and the health care plan, in writing, of the
  appeal  determination  within two business days of the rendering of such
  determination.
    * NB Effective January 1, 2010
    * (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
  subdivision, if the enrollee'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  enrollee,  the  external  appeal  shall  be
  completed  within  three  days  of the request therefor and the external
  appeal agent shall make every reasonable attempt to  immediately  notify
  the  enrollee  and  the health plan of its determination by telephone or
  facsimile,  followed  immediately  by  written  notification   of   such
  determination.
    * NB Effective until January 1, 2010

    * (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
  subdivision,  if  the enrollee'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  enrollee, the external appeal shall be
  completed  within  three  days  of the request therefor and the external
  appeal agent shall make every reasonable attempt to  immediately  notify
  the enrollee, the enrollee's health care provider where appropriate, and
  the health plan of its determination by telephone or facsimile, followed
  immediately by written notification of such determination.
    * NB Effective January 1, 2010
    (d)  (A)  For  external appeals requested pursuant to paragraph (a) of
  subdivision two of section forty-nine hundred ten  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,  and  applicable  generally accepted practice guidelines
  developed by the federal government, national  or  professional  medical
  societies,  boards  and  associations.  Provided that such determination
  shall:
    (i) be conducted only by one or a greater odd number of clinical  peer
  reviewers,
    (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,
    (iii)  be  subject to the terms and conditions generally applicable to
  benefits under the evidence of coverage under the health care plan,
    (iv) be binding on the plan and the enrollee, and
    (v) be admissible in any court proceeding.
    (B) For external  appeals  requested  pursuant  to  paragraph  (b)  of
  subdivision  two  of  section  forty-nine hundred ten 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 experimental and
  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:
    (i) be conducted by a panel of  three  or  a  greater  odd  number  of
  clinical peer reviewers,
    (ii) be accompanied by a written statement:
    * (1)  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 enrollee's medical
  record, and any other pertinent information, that  the  proposed  health
  service  or  treatment  (including  a  pharmaceutical product within the
  meaning of subparagraph (B) of paragraph  (b)  of  subdivision  five  of
  section  forty-nine  hundred  of  this  article)  is  likely  to be more
  beneficial than any standard treatment or treatments for the  enrollee's
  life-threatening or disabling condition or disease (or, in the case of a
  clinical  trial,  is  likely to benefit the enrollee in the treatment of
  the enrollee's condition or disease);  or  when  a  reviewing  panel  is

  evenly  divided  as to a determination concerning coverage of the health
  service or procedure, or
    * NB Effective until January 1, 2010
    * (1)  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, based upon review of the
  applicable medical and scientific evidence and, in connection with  rare
  diseases,  the physician's certification required by subdivision seven-g
  of section forty-nine hundred of this article and such other evidence as
  the enrollee,  the  enrollee's  designee  or  the  enrollee's  attending
  physician  may  present  (or  upon  confirmation  that  the  recommended
  treatment is a clinical trial), the enrollee's medical record,  and  any
  other  pertinent  information,  that  the  proposed  health  service  or
  treatment (including a pharmaceutical  product  within  the  meaning  of
  subparagraph  (B)  of  paragraph  (b)  of  subdivision  five  of section
  forty-nine hundred of this article) is likely to be more beneficial than
  any standard treatment or treatments for the enrollee's life-threatening
  or disabling condition or  disease  or,  for  rare  diseases,  that  the
  requested  health service or procedure is likely to benefit the enrollee
  in the treatment of the enrollee's rare disease and that such benefit to
  the enrollee outweighs the risks of such  health  service  or  procedure
  (or,  in the case of a clinical trial, is likely to benefit the enrollee
  in the treatment of the enrollee's condition  or  disease);  or  when  a
  reviewing  panel  is  evenly  divided  as  to a determination concerning
  coverage of the health service or procedure, or
    * NB Effective January 1, 2010
    (2) upholding the health plan's denial of coverage,
    (iii) be subject to the terms and conditions generally  applicable  to
  benefits under the evidence of coverage under the health care plan,
    (iv) be binding on the plan and the enrollee, and
    (v) be admissible 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 enrollee 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  enrollee  to  receive  the  treatment,  the  costs  of
  managing  the  research,  or  costs which would not be covered under the
  policy for noninvestigational treatments.
    (C) For external  appeals  requested  pursuant  to  paragraph  (c)  of
  subdivision  two of section four thousand nine hundred ten 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.
    (i) The external appeal agent shall assign one clinical peer  reviewer
  to  make a determination as to whether the out-of-network health service
  is materially different from the health service available in-network.
    (ii) If a determination is made that the out-of-network health service
  is not materially different from the health service available in-network
  the out-of-network health service shall not be  covered  by  the  health
  plan.
    (iii)  If  a  determination  is  made  that  the out-of-network health
  service is  materially  different  from  the  health  service  available
  in-network,  the  external  appeal  agent  shall  assign a panel with an
  additional two 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:
    (1) be accompanied by a written statement that:
    (I)  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  health  service  requested  by  the enrollee, the
  alternate recommended health service proposed by the plan, the  clinical
  standards of the plan, the information provided concerning the enrollee,
  the  attending  physician's  recommendation,  the applicable medical and
  scientific evidence,  the  enrollee's  medical  record,  and  any  other
  pertinent  information  that the out-of-network health service is likely
  to be more clinically beneficial than  the  proposed  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
    (II) uphold the health plan's denial of coverage.
    (2)  be  subject  to  the terms and conditions generally applicable to
  benefits under the evidence of coverage under the health care plan;
    (3) be binding on the plan and the enrollee; and
    (4) be admissible in any court proceeding.
    3. 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 section, unless such opinion was rendered in bad faith or  involved
  gross negligence.
    * 4. 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 forty-five 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 one of subsection (e) of section one  thousand  ninety-six  of
  the  tax  law  or twelve percent 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 forty-five days.
    * NB Effective until January 1, 2010
    * 4.  (a)  Except  as  provided  in  paragraphs  (b)  and  (c) of this
  subdivision, 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 forty-five 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 one of subsection (e) of section one  thousand  ninety-six  of
  the  tax  law  or twelve percent 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 forty-five days.
    (b)  If an enrollee's health care provider requests an external appeal
  of a concurrent adverse determination  and  the  external  appeal  agent
  upholds  the  health care plan's determination in whole, payment for the
  external appeal shall be made by the health care provider in the  manner
  and  subject  to  the timeframes and requirements set forth in paragraph
  (a) of this subdivision.
    (c) If an enrollee's health care provider requests an external  appeal
  of  a  concurrent  adverse  determination  and the external appeal agent

  upholds the health care plan's determination in part,  payment  for  the
  external appeal shall be evenly divided between the health care plan and
  the  enrollee's  health  care provider who requested the external appeal
  and shall be made by the health care plan and the enrollee's health care
  provider  in  the  manner and subject to the timeframes and requirements
  set forth in paragraph (a) of this subdivision; provided, however,  that
  the  commissioner  may,  upon  a  determination by the superintendent of
  insurance  that  health  care  plans  or  health  care   providers   are
  experiencing  a  substantial  hardship  as  a  result of payment for the
  external appeal when the external appeal agent upholds the  health  care
  plan's  determination  in part, in consultation with the superintendent,
  promulgate regulations to limit such hardship.
    (d) If an enrollee's health care provider was acting as the enrollee's
  designee, payment for the external appeal shall be made  by  the  health
  care plan. The external appeal and any designation shall be submitted on
  a  standard  form developed by the commissioner in consultation with the
  superintendent  of  insurance  pursuant  to  subdivision  five  of  this
  section.  The  superintendent of insurance shall have the authority upon
  receipt of an external appeal to  confirm  the  designation  or  request
  other  information  as  necessary,  in  which case the superintendent of
  insurance shall make at least two written requests to  the  enrollee  to
  confirm the designation. The enrollee shall have two weeks to respond to
  each   such   request.   If   the  enrollee  fails  to  respond  to  the
  superintendent  of  insurance  within  the  specified   timeframe,   the
  superintendent  of  insurance  shall  make  two  written requests to the
  health care provider to file an  external  appeal  on  his  or  her  own
  behalf. The health care provider shall have two weeks to respond to each
  such  request.  If  the  health  care  provider  does not respond to the
  superintendent of insurance requests within the specified timeframe, the
  superintendent of insurance shall reject the appeal. If the health  care
  provider  responds  to  the  superintendent's  requests, payment for the
  external appeal shall be made in accordance with paragraphs (b) and  (c)
  of this subdivision.
    * NB Effective January 1, 2010
    5.  The  commissioner,  in  consultation  with  the  superintendent of
  insurance, shall promulgate by regulation a standard description of  the
  external  appeal  process  established  under  this section, which shall
  provide a standard form  and  instructions  for  the  initiation  of  an
  external appeal by an enrollee.