§ 4904. Appeal of adverse determinations by utilization review agents.
(a) An insured, the insured's designee and, in connection with
retrospective adverse determinations, an insured's health care provider,
may appeal an adverse determination rendered by a utilization review
agent.

(a-1) An insured or the insured's designee may appeal an
out-of-network denial by a health care plan by submitting: (1) a written
statement from the insured'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
insured for the health services 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 (2) 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 insured 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.

(a-2) An insured or the insured's designee may appeal an
out-of-network referral denial by a health care plan by submitting a
written statement from the insured'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
insured for the health service sought, provided that: (1) 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 insured for the health service; and (2)
recommends an out-of-network provider with the appropriate training and
experience to meet the particular health care needs of the insured, and
who is able to provide the requested health service.

(b) A utilization review agent shall establish an expedited appeal
process for appeal of an adverse determination involving (1) continued
or extended health care services, procedures or treatments or additional
services for an insured undergoing a course of continued treatment
prescribed by a health care provider or home health care services
following discharge from an inpatient hospital admission pursuant to
subsection (c) of section four thousand nine hundred three of this
title; (2) an adverse determination in which the health care provider
believes an immediate appeal is warranted except any retrospective
determination; or (3) potential court-ordered mental health and/or
substance use disorder services pursuant to paragraph two of subsection
(b) of section four thousand 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
insured'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 three of subsection (c) of section four thousand 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 four thousand nine
hundred fourteen of this article as applicable. Provided that the
insured or the insured'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 three of subsection (c)
of section four thousand 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.

(c) 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 insured
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 decision, shall comply with
subsection (a) of section three thousand two hundred twenty-four-a of
this chapter as applicable. The utilization review agent shall notify
the insured, the insured's designee and, where appropriate, the
insured'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:

(1) 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

(2) a notice of the insured's right to an external appeal together
with a description, jointly promulgated by the superintendent and the
commissioner of health as required pursuant to subsection (e) of section
four thousand 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 insured's, or insured's designee's,
preference for receiving notifications, which shall be in accordance
with applicable federal law and with guidance developed by the
superintendent. Written and telephone notification to an insured or the
insured's designee under this section may be provided by electronic
means where the insured or the insured's designee has informed the
insurer in advance of a preference to receive such notifications by
electronic means. A utilization review agent shall permit the insured
and the insured's designee to change the preference at any time. To the
extent practicable, written and telephone notification to the insured'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 superintendent upon request.

(d) 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.

(e) 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.