N.Y. Public Health Law § 4408-a*2: Grievance procedure

* § 4408-a. Grievance procedure. 1. A health maintenance organization

licensed pursuant to article forty-three of the insurance law or

certified pursuant to this article, and any other organization certified

pursuant to this article shall establish and maintain a grievance

procedure. Pursuant to such procedure, enrollees shall be entitled to

seek a review of determinations by the organization other than

determinations subject to the provisions of article forty-nine of this

chapter.

2. (a) An organization shall provide to all enrollees written notice

of the grievance procedure in the member handbook and at any time that

the organization denies access to a referral or determines that a

requested benefit is not covered pursuant to the terms of the contract;

provided, however, that nothing herein shall be deemed to require a

health care provider to provide such notice. In the event that an

organization denies a service as an adverse determination as defined in

article forty-nine of this chapter, the organization shall inform the

enrollee or the enrollee's designee of the appeal rights provided for in

article forty-nine of this chapter.

(b) The notice to an enrollee describing the grievance process shall

explain: (i) the process for filing a grievance with the organization;

(ii) the timeframes within which a grievance determination must be made;

(iii) the right of an enrollee to designate a representative to file a

grievance on behalf of the enrollee; and (iv) notice of the name,

address, phone number and website of the department designated consumer

assistance program and the independent substance use disorder and mental

health ombudsman established by section 33.27 of the mental hygiene law

within notices of adverse grievances and appeals determinations.

(c) The organization shall assure that the grievance procedure is

reasonably accessible to those who do not speak English.

3. (a) The organization may require an enrollee to file a grievance in

writing, by letter or by a grievance form which shall be made available

by the organization and which shall conform to applicable standards for

readability.

(b) Notwithstanding the provisions of paragraph (a) of this

subdivision, an enrollee may submit an oral grievance in connection

with: (i) a denial of, or failure to pay for, a referral; or (ii) a

determination as to whether a benefit is covered pursuant to the terms

of the enrollee's contract. In connection with the submission of an oral

grievance, an organization may require that the enrollee sign a written

acknowledgment of the grievance prepared by the organization summarizing

the nature of the grievance. Such acknowledgment shall be mailed

promptly to the enrollee, who shall sign and return the acknowledgment,

with any amendments, in order to initiate the grievance. The grievance

acknowledgment shall prominently state that the enrollee must sign and

return the acknowledgment to initiate the grievance. If an organization

does not require such a signed acknowledgment, an oral grievance shall

be initiated at the time of the telephone call.

(c) Upon receipt of a grievance, the organization shall provide notice

specifying what information must be provided to the organization in

order to render a decision on the grievance.

(d) (1) An organization shall designate personnel to accept the filing

of an enrollee's grievance by toll-free telephone no less than forty

hours per week during normal business hours and, shall have a telephone

system available to take calls during other than normal business hours

and shall respond to all such calls no less than the next business day

after the call was recorded.

(2) Notwithstanding the provisions of subparagraph one of this

paragraph, an organization may, in the alternative, designate personnel

to accept the filing of an enrollee's grievance by toll-free telephone

not less than forty hours per week during normal business hours and, in

the case of grievances subject to subparagraph (i) of subdivision four

of this section, on a twenty-four hour a day, seven day a week basis.

4. Within fifteen business days of receipt of the grievance, the

organization shall provide written acknowledgment of the grievance,

including the name, address and telephone number of the individual or

department designated by the organization to respond to the grievance.

All grievances shall be resolved in an expeditious manner, and in any

event, no more than: (i) forty-eight hours after the receipt of all

necessary information when a delay would significantly increase the risk

to an enrollee's health; (ii) thirty days after the receipt of all

necessary information in the case of requests for referrals or

determinations concerning whether a requested benefit is covered

pursuant to the contract; and (iii) forty-five days after the receipt of

all necessary information in all other instances.

5. The organization shall designate one or more qualified personnel to

review the grievance; provided further, that when the grievance pertains

to clinical matters, the personnel shall include, but not be limited to,

one or more licensed, certified or registered health care professionals.

6. The notice of a determination of the grievance shall be made in

writing to the enrollee or to the enrollee's designee. In the case of a

determination made in conformance with subparagraph (i) of subdivision

four of this section, notice shall be made by telephone directly to the

enrollee with written notice to follow within three business days.

7. The notice of a determination shall include: (i) the detailed

reasons for the determination; (ii) in cases where the determination has

a clinical basis, the clinical rationale for the determination; (iii)

the procedures for the filing of an appeal of the determination,

including a form for the filing of such an appeal; and (iv) notice of

the name, address, phone number and website of the department designated

consumer assistance program and the independent substance use disorder

and mental health ombudsman established by section 33.27 of the mental

hygiene law within notices of adverse grievances and appeals

determinations.

8. An enrollee or an enrollee's designee shall have not less than

sixty business days after receipt of notice of the grievance

determination to file a written appeal, which may be submitted by letter

or by a form supplied by the organization.

9. Within fifteen business days of receipt of the appeal, the

organization shall provide written acknowledgment of the appeal,

including the name, address and telephone number of the individual

designated by the organization to respond to the appeal and what

additional information, if any, must be provided in order for the

organization to render a decision.

10. The determination of an appeal on a clinical matter must be made

by personnel qualified to review the appeal, including licensed,

certified or registered health care professionals who did not make the

initial determination, at least one of whom must be a clinical peer

reviewer as defined in article forty-nine of this chapter. The

determination of an appeal on a matter which is not clinical shall be

made by qualified personnel at a higher level than the personnel who

made the grievance determination.

11. The organization shall seek to resolve all appeals in the most

expeditious manner and shall make a determination and provide notice no

more than:

(i) two business days after the receipt of all necessary information

when a delay would significantly increase the risk to an enrollee's

health; and

(ii) thirty business days after the receipt of all necessary

information in all other instances.

12. The notice of a determination on an appeal shall include: (i) the

detailed reasons for the determination; and (ii) in cases where the

determination has a clinical basis, the clinical rationale for the

determination.

13. An organization shall not retaliate or take any discriminatory

action against an enrollee because an enrollee has filed a grievance or

appeal.

14. An organization shall maintain a file on each grievance and

associated appeal, if any, that shall include the date the grievance was

filed; a copy of the grievance, if any; the date of receipt of and a

copy of the enrollee's acknowledgment of the grievance, if any; the

determination made by the organization including the date of the

determination and the titles and, in the case of a clinical

determination, the credentials of the organization's personnel who

reviewed the grievance. If an enrollee files an appeal of the grievance,

the file shall include the date and a copy of the enrollee's appeal, the

determination made by the organization including the date of the

determination and the titles and, in the case of clinical

determinations, the credentials, of the organization's personnel who

reviewed the appeal.

15. An organization shall have procedures for obtaining an enrollee's,

or enrollee's designee's, preference for receiving notifications, which

shall be in accordance with applicable federal law and with guidance

developed by the commissioner. Written and telephone notification to an

enrollee or the enrollee's designee under this section may be provided

by electronic means where the enrollee or the enrollee's designee has

informed the organization in advance of a preference to receive such

notification by electronic means. An organization shall permit the

enrollee and the enrollee's designee to change the preference at any

time. The organization shall retain documentation of preferred

notification methods and present such records to the commissioner upon

request.

16. The rights and remedies conferred in this article upon enrollees

shall be cumulative and in addition to and not in lieu of any other

rights or remedies available under law.

* NB There are 2 § 4408-a's