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

§ 4904. Appeal of adverse determinations by utilization review agents.

1. An enrollee, the enrollee's designee and, in connection with

retrospective adverse determinations, an enrollee's health care

provider, may appeal an adverse determination rendered by a utilization

review agent.

1-a. An enrollee or the enrollee's designee may appeal an

out-of-network denial by a health care plan by submitting: (a) a written

statement from the enrollee'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

enrollee for the health service 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 (b) 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 enrollee 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.

1-b. An enrollee or the enrollee's designee may appeal a denial of an

out-of-network referral by a health care plan by submitting a written

statement from the enrollee'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

enrollee for the health service sought, provided that: (a) 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 enrollee for the health service;

and (b) recommends an out-of-network provider with the appropriate

training and experience to meet the particular health care needs of the

enrollee, and who is able to provide the requested health service.

2. A utilization review agent shall establish an expedited appeal

process for appeal of an adverse determination involving:

(a) continued or extended health care services, procedures or

treatments or additional services for an enrollee undergoing a course of

continued treatment prescribed by a health care provider home health

care services following discharge from an inpatient hospital admission

pursuant to subdivision three of section forty-nine hundred three of

this title; or

(b) an adverse determination in which the health care provider

believes an immediate appeal is warranted except any retrospective

determination; or

* (c) potential court-ordered mental health and/or substance use

disorder services pursuant to paragraph (b) of subdivision two of

section forty-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 enrollee'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 (c) of subdivision

three of section forty-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 forty-nine hundred fourteen of this article as applicable.

Provided that the enrollee or the enrollee'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 (c) of

subdivision three of section forty-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

* (c) potential court-ordered mental health and/or substance-related

and addictive disorder services pursuant to paragraph (b) of subdivision

two of section forty-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

enrollee'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 (c) of subdivision three of section

forty-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

forty-nine hundred fourteen of this article as applicable. Provided that

the enrollee or the enrollee'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 (c)

of subdivision three of section forty-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

3. 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 enrollee

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 determination, shall comply

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

of the insurance law as applicable. The utilization review agent shall

notify the enrollee, the enrollee's designee and, where appropriate, the

enrollee'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:

(a) 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

(b) a notice of the enrollee's right to an external appeal together

with a description, jointly promulgated by the commissioner and the

superintendent of financial services as required pursuant to subdivision

five of section forty-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 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

notifications by electronic means. An organization shall permit the

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

time. To the extent practicable, written and telephone notification to

the enrollee'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 commissioner upon request.

4. 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.

5. 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.