* § 4408-a. Grievance procedure. 1. A health maintenance organization
licensed pursuant to article forty-three of the insurance law or
certified pursuant to this article, and any other organization certified
pursuant to this article shall establish and maintain a grievance
procedure. Pursuant to such procedure, enrollees shall be entitled to
seek a review of determinations by the organization other than
determinations subject to the provisions of article forty-nine of this
chapter.

2. (a) An organization shall provide to all enrollees written notice
of the grievance procedure in the member handbook and at any time that
the organization denies access to a referral or determines that a
requested benefit is not covered pursuant to the terms of the contract;
provided, however, that nothing herein shall be deemed to require a
health care provider to provide such notice. In the event that an
organization denies a service as an adverse determination as defined in
article forty-nine of this chapter, the organization shall inform the
enrollee or the enrollee's designee of the appeal rights provided for in
article forty-nine of this chapter.

(b) The notice to an enrollee describing the grievance process shall
explain: (i) the process for filing a grievance with the organization;
(ii) the timeframes within which a grievance determination must be made;
(iii) the right of an enrollee to designate a representative to file a
grievance on behalf of the enrollee; and (iv) notice of the name,
address, phone number and website of the department designated consumer
assistance program and the independent substance use disorder and mental
health ombudsman established by section 33.27 of the mental hygiene law
within notices of adverse grievances and appeals determinations.

(c) The organization shall assure that the grievance procedure is
reasonably accessible to those who do not speak English.

3. (a) The organization may require an enrollee to file a grievance in
writing, by letter or by a grievance form which shall be made available
by the organization and which shall conform to applicable standards for
readability.

(b) Notwithstanding the provisions of paragraph (a) of this
subdivision, an enrollee may submit an oral grievance in connection
with: (i) a denial of, or failure to pay for, a referral; or (ii) a
determination as to whether a benefit is covered pursuant to the terms
of the enrollee's contract. In connection with the submission of an oral
grievance, an organization may require that the enrollee sign a written
acknowledgment of the grievance prepared by the organization summarizing
the nature of the grievance. Such acknowledgment shall be mailed
promptly to the enrollee, who shall sign and return the acknowledgment,
with any amendments, in order to initiate the grievance. The grievance
acknowledgment shall prominently state that the enrollee must sign and
return the acknowledgment to initiate the grievance. If an organization
does not require such a signed acknowledgment, an oral grievance shall
be initiated at the time of the telephone call.

(c) Upon receipt of a grievance, the organization shall provide notice
specifying what information must be provided to the organization in
order to render a decision on the grievance.

(d) (1) An organization shall designate personnel to accept the filing
of an enrollee's grievance by toll-free telephone no less than forty
hours per week during normal business hours and, shall have a telephone
system available to take calls during other than normal business hours
and shall respond to all such calls no less than the next business day
after the call was recorded.

(2) Notwithstanding the provisions of subparagraph one of this
paragraph, an organization may, in the alternative, designate personnel
to accept the filing of an enrollee's grievance by toll-free telephone
not less than forty hours per week during normal business hours and, in
the case of grievances subject to subparagraph (i) of subdivision four
of this section, on a twenty-four hour a day, seven day a week basis.

4. Within fifteen business days of receipt of the grievance, the
organization shall provide written acknowledgment of the grievance,
including the name, address and telephone number of the individual or
department designated by the organization to respond to the grievance.
All grievances shall be resolved in an expeditious manner, and in any
event, no more than: (i) forty-eight hours after the receipt of all
necessary information when a delay would significantly increase the risk
to an enrollee's health; (ii) thirty days after the receipt of all
necessary information in the case of requests for referrals or
determinations concerning whether a requested benefit is covered
pursuant to the contract; and (iii) forty-five days after the receipt of
all necessary information in all other instances.

5. The organization shall designate one or more qualified personnel to
review the grievance; provided further, that when the grievance pertains
to clinical matters, the personnel shall include, but not be limited to,
one or more licensed, certified or registered health care professionals.

6. The notice of a determination of the grievance shall be made in
writing to the enrollee or to the enrollee's designee. In the case of a
determination made in conformance with subparagraph (i) of subdivision
four of this section, notice shall be made by telephone directly to the
enrollee with written notice to follow within three business days.

7. The notice of a determination shall include: (i) the detailed
reasons for the determination; (ii) in cases where the determination has
a clinical basis, the clinical rationale for the determination; (iii)
the procedures for the filing of an appeal of the determination,
including a form for the filing of such an appeal; and (iv) notice of
the name, address, phone number and website of the department designated
consumer assistance program and the independent substance use disorder
and mental health ombudsman established by section 33.27 of the mental
hygiene law within notices of adverse grievances and appeals
determinations.

8. An enrollee or an enrollee's designee shall have not less than
sixty business days after receipt of notice of the grievance
determination to file a written appeal, which may be submitted by letter
or by a form supplied by the organization.

9. Within fifteen business days of receipt of the appeal, the
organization shall provide written acknowledgment of the appeal,
including the name, address and telephone number of the individual
designated by the organization to respond to the appeal and what
additional information, if any, must be provided in order for the
organization to render a decision.

10. The determination of an appeal on a clinical matter must be made
by personnel qualified to review the appeal, including licensed,
certified or registered health care professionals who did not make the
initial determination, at least one of whom must be a clinical peer
reviewer as defined in article forty-nine of this chapter. The
determination of an appeal on a matter which is not clinical shall be
made by qualified personnel at a higher level than the personnel who
made the grievance determination.

11. The organization shall seek to resolve all appeals in the most
expeditious manner and shall make a determination and provide notice no
more than:

(i) two business days after the receipt of all necessary information
when a delay would significantly increase the risk to an enrollee's
health; and

(ii) thirty business days after the receipt of all necessary
information in all other instances.

12. The notice of a determination on an appeal shall include: (i) the
detailed reasons for the determination; and (ii) in cases where the
determination has a clinical basis, the clinical rationale for the
determination.

13. An organization shall not retaliate or take any discriminatory
action against an enrollee because an enrollee has filed a grievance or
appeal.

14. An organization shall maintain a file on each grievance and
associated appeal, if any, that shall include the date the grievance was
filed; a copy of the grievance, if any; the date of receipt of and a
copy of the enrollee's acknowledgment of the grievance, if any; the
determination made by the organization including the date of the
determination and the titles and, in the case of a clinical
determination, the credentials of the organization's personnel who
reviewed the grievance. If an enrollee files an appeal of the grievance,
the file shall include the date and a copy of the enrollee's appeal, the
determination made by the organization including the date of the
determination and the titles and, in the case of clinical
determinations, the credentials, of the organization's personnel who
reviewed the appeal.

15. An organization shall have procedures for obtaining an enrollee's,
or enrollee's designee's, preference for receiving notifications, which
shall be in accordance with applicable federal law and with guidance
developed by the commissioner. Written and telephone notification to an
enrollee or the enrollee's designee under this section may be provided
by electronic means where the enrollee or the enrollee's designee has
informed the organization in advance of a preference to receive such
notification by electronic means. An organization shall permit the
enrollee and the enrollee's designee to change the preference at any
time. The organization shall retain documentation of preferred
notification methods and present such records to the commissioner upon
request.

16. The rights and remedies conferred in this article upon enrollees
shall be cumulative and in addition to and not in lieu of any other
rights or remedies available under law.

* NB There are 2 § 4408-a's