New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter II - Administrative Rules and Regulations
Subchapter R - Health Maintenance Organizations
Part 98 - Health Maintenance Organizations
Subpart 98-2 - External Appeals Of Adverse Determinations
Section 98-2.10 - Responsibilities of certified external appeal agents

Universal Citation: 10 NY Comp Codes Rules and Regs § 98-2.10

Current through Register Vol. 47, No. 12, March 26, 2025

(a) Within 24 hours of receiving assignment from the superintendent of a request for external appeal, certified external appeal agents shall send notification of such assignment to the enrollee requesting an external appeal or on whose behalf an external appeal is requested, the enrollee's health care plan, the attending physician, as applicable, and, in the case of a provider initiated appeal of a retrospective adverse determination, the enrollee's health care provider. The certified external appeal agent shall include in such notification:

(1) a request for any additional documentation that may be available to support the appeal;

(2) the address to which any required or additional documentation should be sent;

(3) whether the appeal is a standard or expedited appeal; and

(4) for purposes of notifying the enrollee's health care plan, as applicable, copies of the documents relied upon by the enrollee's attending physician to establish medical and scientific evidence that the recommended health care service(s) is likely to be more beneficial to the enrollee than any covered standard health care service or procedure.

(b) Certified external appeal agents shall make a final determination on nonexpedited external appeals within 30 days of receiving the request for external appeal from the superintendent, provided that, in the event that the certified external appeal agent requests additional documentation from the enrollee, the enrollee's health care plan, the enrollee's attending physician or health care provider, other than the documentation requested pursuant to subdivision (a) of this section, the certified external appeal agent shall have an additional five business days from receipt of the request for external appeal from the superintendent within which to make a final determination. Certified external appeal agents shall notify the superintendent if additional documentation has been requested.

(c) Certified external appeal agents shall make a final determination on expedited external appeals within three days of receiving the request for external appeal from the superintendent.

(d) In addition to the requirements in section 4914 (2)(d) of the Public Health Law and section 4914 (b)(4) of the Insurance Law, the external appeal agent shall consider any documentation submitted by the enrollee or the enrollee's designee, the enrollee's attending physician, the enrollee's health care plan or the enrollee's health care provider that is pertinent to the external appeal under review provided that such documentation is submitted by the earlier of:

(1) within 45 days from when the enrollee or, in the case of a provider initiated retrospective appeal, the enrollee's health care provider received notice that the health care plan made a final adverse determination or within 45 days of the date from when the enrollee received a letter from the health care plan affirming that both the enrollee and the enrollee's health care plan jointly agreed to waive the internal appeal process; or

(2) prior to the external review agent's final determination on the appeal. A certified external appeal agent may not reconsider an appeal for which a final determination has been made based upon receipt of additional information subsequent to such final determination.

(e) The certified external appeal agent shall forward to the enrollee's health care plan any documentation received by the certified external appeal agent that is pertinent to an appeal that has been referred to the agent by the superintendent. Any such documentation that, in the opinion of the certified external appeal agent, constitutes a material change from the documentation upon which the utilization review agent based its adverse determination or upon which the health care plan based its denial shall be forwarded immediately, but no later than 24 hours after receipt of such documentation, to the enrollee's health care plan, with notification that such documentation represents a material change, for consideration pursuant to section 4914 (2)(a) of the Public Health Law and section 4914 (b)(1) of the Insurance Law. In the event of receipt of such material documentation, for other than expedited appeals, the certified external appeal agent shall not issue a determination for up to three business days or until the health care plan has considered such documentation and amended, reversed or confirmed the adverse determination, whichever is earlier.

(f) For each external appeal determination made by a certified external appeal agent, the medical director of the certified external appeal agent shall certify that:

(1) the certified external appeal agent and each clinical peer reviewer assigned to review the external appeal followed appropriate procedures as defined in section 4914 of the Public Health Law and Insurance Law, this section and the certified external appeal agent's application and, as applicable, conditions for certification;

(2) all clinical peer reviewers met the criteria for conducting the external review pursuant to subdivision 2 of section 4900 of the Public Health Law and subdivision (b) of section 4900 of the Insurance Law; and

(3) for each clinical peer reviewer assigned to review the external appeal, a duly signed and notarized attestation which affirms, under penalty of perjury, that no prohibited material affiliation exists with respect to such clinical peer reviewer's participation in the review of the external appeal pursuant to section 98-2.6(e)-(f) and (h) of this Subpart, is on file with the certified external appeal agent. Such attestation shall be in such form as prescribed by the commissioner and superintendent.

(g) Certified external appeal agents shall forward copies of appeal determination notification letters sent to health care plans and enrollees pursuant to section 4914 (2)(b) and (c) of the Public Health Law and section 4914 (b)(2) and (3) of the Insurance Law to the enrollee's health care provider, if applicable, and to the commissioner and superintendent. Such notification letters shall include:

(1) a clear statement of the health care plan's responsibility in regard to provision of the contested health care service(s) to the enrollee;

(2) a statement attesting that no prohibited material affiliation existed with respect to the clinical peer reviewers; and

(3) with respect to a medical necessity appeal determination, the reasons for the determination which shall include a discussion of the health care plan's clinical standards, 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 which were used in making the determination; or

(4) with respect to an experimental or investigational treatment or service appeal determination, a statement as to whether the proposed health service or treatment is likely to be more beneficial than any standard treatment or treatments for the enrollee's life-threatening or disabling condition or disease; or

(5) with respect to a clinical trial appeal determination, a statement as to whether the clinical trial is likely to benefit the enrollee in the treatment of the enrollee's condition or disease.

(h) Certified external appeal agents shall enclose a request for payment with the copy of the appeal notification letter sent to the health care plan.

(i) Certified external appeal agents shall not be relieved of responsibility for making a determination with respect to an assigned external appeal on the basis that the enrollee no longer has coverage with the health care plan that denied the health care service(s) that is the subject of the appeal. However, a health care plan will not be required to pay the patient costs of any health service(s) or procedure(s) that is the subject of an external appeal for enrollees who no longer have coverage with such health care plan unless and to the extent that such health care service(s) was provided while the enrollee had coverage with the health care plan.

(j) In addition to the information required by section 4916 (2) of the Public Health Law and section 4916 (b) of the Insurance Law, certified external appeal agents shall include in the annual report a description of each external appeal assigned to such certified external appeal agent by the superintendent, including a summary of the clinical justification for the agent's determination, and any other information required by the commissioner and/or superintendent.

(k) In no event shall the certified external appeal agent provide the health care plan with a copy of the enrollee's application for an external appeal or divulge to the health care plan, the enrollee, the enrollee's attending physician or health care provider the names of the clinical peer reviewers assigned to the appeal. However, such information shall be made available upon request to and upon audit or examination by the commissioner and superintendent. Nothing herein is intended to preclude access to such information during court proceedings.

(l)

(1) Upon requesting an external appeal, the enrollee, the enrollee's designee or the enrollee's health care provider shall acknowledge that the determination of the external appeal is binding on the plan and the enrollee, and shall agree not to commence any legal proceeding against an external appeal agent or clinical peer reviewer to review a determination made by such external appeal agent or clinical peer reviewer pursuant to article 49 of the Public Health Law or article 49 of the Insurance Law; provided, however, that the foregoing shall not limit any rights the enrollee, the enrollee's designee or the enrollee's health care provider may have with respect to bringing an action for damages for bad faith or gross negligence or with respect to bringing an action against the enrollee's health care plan.

(2) As specified in Public Health Law section 4914(3) and Insurance Law section 4914(c), 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 article 49 of the Public Health Law or article 49 of the Insurance Law, unless such opinion was rendered in bad faith or involved gross negligence.

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