Current through Register Vol. 46, No. 39, September 25, 2024
(a) No
entity shall be qualified for certification as an external appeal agent if it
owns or controls, is owned or controlled by, or exercises common control with
any of the following:
(1) any national, State
or local illness, health benefit or public advocacy group;
(2) any national, State or local society or
association of hospitals, physicians, or other providers of health care
services; or
(3) any national,
State or local association of health care plans.
(b) An applicant for certification as an
external appeal agent shall submit a sworn statement setting forth that none of
the control affiliations proscribed in subdivision (a) of this section apply to
the applicant, and that the applicant, its medical director and each of its
owners, officers, directors and management employees, either:
(1) has no material familial, financial or
professional affiliation, as those terms are defined in section
410.2(e)-(g) of
this Part, with any person or entity listed in subparagraphs (2)(i)-(v) of this
subdivision; or
(2) provides a list
of those material familial, financial and professional affiliations, each of
which may, upon certification, result in a prohibited conflict of interest in
connection with an external appeal because of such affiliation with:
(i) any health care plan;
(ii) any owner, officer, director, or
management employee of any health care plan;
(iii) any health care provider, physician's
medical group, independent practice association, or provider of pharmaceutical
products or services or durable medical equipment;
(iv) any facility at which a health service
would be provided; or
(v) any
developer or manufacturer of a health service.
(c) Following certification:
(1) if an external appeal agent acquires
ownership or control of, or becomes owned or controlled by, or acquires and
begins to exercise common control with any entity described in paragraphs
(a)(1)-(3) of this section, the external appeal agent shall notify the
Departments of Insurance and Health in writing within five business days of
such acquisition or exercise of control. Such notice shall be sufficient basis
for the revocation of certification without a hearing; and
(2) the sworn statement required by
subdivision (b) of this section shall be amended and resubmitted to the
Departments of Insurance and Health within five business days of the addition
or deletion of any material affiliation as described in subparagraphs
(b)(2)(i)-(v) of this section.
(d) The applicant shall submit a detailed
written description of its policies, processes and procedures for ensuring, in
accordance with the criteria set forth in subdivisions (b) and (c) and
paragraphs (e)(2)-(4) of this section and section
410.5(h)(2) of
this Part, that appeals will be conducted by impartial clinical peer reviewers,
for the reporting and review of clinical peer reviewer conflicts of interest
and for assigning or reassigning an appeal where a conflict or potential
conflict is identified and further, that the applicant, its medical director
and each of its owners, officers, directors, management employees and clinical
peer reviewers have no material familial, financial or professional affiliation
with the insured whose health care service is the subject of an appeal assigned
to it subsequent to certification as an external appeal agent or with the
insured's designee.
(e) Unavoidable
conflicts; minimization. Notwithstanding any other provision of law and in
accordance with section
4913
(b) of the Insurance Law and section 4913.2
of the Public Health Law:
(1) if the
superintendent determines in the course of assigning an external appeal that a
conflict is unavoidable because all external appeal agents certified pursuant
to this Part or their medical director, owners, officers, directors and/or
management employees have a disqualifying material affiliation with one or more
of the persons or entities listed in subparagraphs (b)(2)(i)- (v) of this
section in relation to the appeal to be assigned, the superintendent shall make
a random assignment of the appeal in accordance with section
410.8 of this Part, provided,
however, that the certified external appeal agent assigned shall, within two
business days of the assignment or for an expedited appeal, within 24 hours of
the assignment, certify to the superintendent by sworn statement that the
clinical peer reviewer(s) who will review the external appeal have been
assigned in accordance with paragraph (2) of this subdivision and subdivision
(f) of this section. When an appeal must be assigned pursuant to this
paragraph, the superintendent shall notify the insured that all certified
agents have a proscribed material affiliation(s), of the need to randomly
assign the appeal to one of the external appeal agents certified by the State
in order that a determination of the appeal be obtained and of the nature of
the affiliation(s) involving the certified external appeal agent assigned to
the appeal, and shall inform the insured that, in no event shall the agent's
clinical peer reviewer(s) who reviews the appeal have any affiliation
proscribed by this section;
(2) an
agent assigned pursuant to this Part shall not assign an appeal to a clinical
peer reviewer(s) which has a material affiliation with any of those persons
listed in subparagraphs (b)(2)(i)-(v) of this section or to a clinical peer
reviewer(s) which has a material familial, financial or professional
affiliation with the insured whose health care service is the subject of the
appeal, or with the insured's designee;
(3) where a clinical peer reviewer has a
material affiliation with a health maintenance organization or line of business
thereof, such affiliation alone shall not constitute a disqualifying conflict
with respect to an appeal involving an affiliated health maintenance
organization or line of business with respect to which the clinical peer
reviewer has no material affiliation; and
(4) where a clinical peer reviewer has a
material affiliation with a hospital or other licensed provider which is an
affiliate of a larger hospital or other provider system or network, such
affiliation alone shall not constitute a disqualifying conflict with respect to
an appeal involving another hospital or other provider affiliated with such
hospital or provider system with respect to which the clinical peer reviewer
has no material affiliation.
(f) No appeal shall be assigned to an
external appeal agent or clinical peer reviewer that participated in or issued
an internal utilization review decision or the final adverse utilization review
determination which is the basis for an external appeal.
(g) Any appeal assigned to an external appeal
agent or clinical peer reviewer which is subsequently determined to involve a
disqualifying material affiliation, or prior involvement of the external appeal
agent or clinical peer reviewer in the underlying internal utilization review
decision or final adverse utilization review determination, shall be
immediately returned for reassignment to the superintendent, or the external
appeal agent, respectively. If the appeal is being returned to the
superintendent, the certified external appeal agent shall also immediately
notify the superintendent, by telephone or fax, that the appeal is being
returned.
(h) Notwithstanding any
other provision of this Part, a certified external appeal agent may assign an
appeal to a clinical peer reviewer with unique expertise and experience with
respect to a health care service which is relevant to an appeal for reasons
which may include, but shall not necessarily be limited to:
(1) the development or participation in the
development of a service, procedure or related equipment; and/or
(2) prior training and participation in the
diagnosis or treatment of a condition rarely encountered or rarely encountered
in the geographic area in which the insured resides, provided, however, that
such clinical peer reviewer did not participate in the internal utilization
review decision or the final adverse determination which is the basis for the
external appeal.
