New York Codes, Rules and Regulations
Title 11 - INSURANCE
Chapter XVIII - External Appeals Of Adverse Determinations Of Health Care Plans
Part 410 - External Appeals Of Adverse Determinations Of Health Care Plans
Section 410.10 - Responsibilities of certified external appeal agents

Universal Citation: 11 NY Comp Codes Rules and Regs ยง 410.10

Current through Register Vol. 46, No. 39, September 25, 2024

(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 insured requesting an external appeal or on whose behalf an external appeal is requested, the insured's health care plan, the attending physician, as applicable, and, in the case of a provider initiated appeal of a retrospective adverse determination, the insured'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 insured's health care plan, as applicable, copies of the documents relied upon by the insured's attending physician to establish medical and scientific evidence that the recommended health care service is likely to be more beneficial to the insured 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 insured, the insured's health care plan, the insured'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 (b)(4) of the Insurance Law and section 4914.2(d) of the Public Health Law the external appeal agent shall consider any documentation submitted by the insured or the insured's designee, the insured's attending physician, the insured's health care plan or the insured'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 insured or, in the case of a provider initiated retrospective appeal, the insured'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 insured received a letter from the health care plan affirming that both the insured and the insured'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 insured'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 insured's health care plan, with notification that such documentation represents a material change, for consideration pursuant to section 4914 (b)(1) of the Insurance Law and section 4914.2(a) of the Public Health 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 Insurance Law and Public Health 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 section 4900 (b) of the Insurance Law and section 4900 (2) of the Public Health 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 410.6(e)-(f) and (h) of this Part, is on file with the certified external appeal agent. Such attestation shall be in such form as prescribed by the superintendent and commissioner.

(g) Certified external appeal agents shall forward copies of appeal determination notification letters sent to health care plans and insureds pursuant to section 4914 (b)(2) and (3) of the Insurance Law and section 4914.2(b) and (c) of the Public Health Law to the insured's health care provider, if applicable, and to the superintendent and commissioner. 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 to the insured;

(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 and 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 insured'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 insured in the treatment of the insured'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 insured 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 insureds who no longer have coverage with such health care plan unless, and to the extent that the health care service(s) was provided while the insured had coverage with the health care plan.

(j) In addition to the information required by section 4916 (b) of the Insurance Law and section 4916.2 of the Public Health 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 superintendent and/or commissioner.

(k) In no event shall the certified external appeal agent provide the health care plan with a copy of the insured's application for an external appeal or divulge to the health care plan, the insured, the insured'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 superintendent and commissioner. Nothing herein is intended to preclude access to such information during court proceedings.

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