N.Y. Insurance Law § 4904: Appeal of adverse determinations by utilization review agents

§ 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.

(a-2) An insured or the insured's designee may appeal an

out-of-network referral denial by a health care plan by submitting 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 service sought, provided that: (1) 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 insured for the health service; and (2)

recommends an out-of-network provider with the appropriate training and

experience to meet the particular health care needs of the insured, and

who is able to provide the requested 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 home health care services

following discharge from an inpatient hospital admission pursuant to

subsection (c) of section four thousand nine hundred three of this

title; (2) an adverse determination in which the health care provider

believes an immediate appeal is warranted except any retrospective

determination; or (3) potential court-ordered mental health and/or

substance use disorder services pursuant to paragraph two of subsection

(b) of section four thousand 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

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 except, with

respect to inpatient substance use disorder treatment provided pursuant

to paragraph three of subsection (c) of section four thousand 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 four thousand nine

hundred fourteen of this article as applicable. Provided that the

insured or the insured'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 three of subsection (c)

of section four thousand 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.

* NB Effective until January 1, 2027

* (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

title; (2) an adverse determination in which the health care provider

believes an immediate appeal is warranted except any retrospective

determination; or (3) potential court-ordered mental health and/or

substance-related and addictive disorder services pursuant to paragraph

two of subsection (b) of section four thousand 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 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

except, with respect to inpatient substance-related and addictive

disorder treatment provided pursuant to paragraph three of subsection

(c) of section four thousand 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 four thousand nine hundred fourteen of this article as

applicable. Provided that the insured or the insured's health care

provider files an expedited internal and external appeal within

twenty-four hours from receipt of an adverse determination for inpatient

substance-related and addictive disorder treatment for which coverage

was provided while the initial utilization review determination was

pending pursuant to paragraph three of subsection (c) of section four

thousand 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-related and addictive disorder treatment

while a determination by the utilization review agent or external appeal

agent is pending.

* NB Effective January 1, 2027

(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

thirty days of the receipt of necessary information to conduct the

appeal and, upon overturning the adverse decision, shall comply with

subsection (a) of section three thousand two hundred twenty-four-a of

this chapter as applicable. 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. A utilization review agent shall

have procedures for obtaining an insured's, or insured's designee's,

preference for receiving notifications, which shall be in accordance

with applicable federal law and with guidance developed by the

superintendent. Written and telephone notification to an insured or the

insured's designee under this section may be provided by electronic

means where the insured or the insured's designee has informed the

insurer in advance of a preference to receive such notifications by

electronic means. A utilization review agent shall permit the insured

and the insured's designee to change the preference at any time. To the

extent practicable, written and telephone notification to the insured'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 superintendent upon request.

(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.