Current through Register Vol. 46, No. 12, March 20, 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.