§ 4914. Procedures for external appeals of adverse determinations. 1.
The commissioner shall establish procedures by regulation to randomly
assign an external appeal agent to conduct an external appeal, provided
that the commissioner may establish a maximum fee which may be charged
for any such external appeal, or the commissioner may exclude from such
random assignment any external appeal agent which charges a fee which
she deems to be unreasonable.

2. (a) The enrollee shall have four months to initiate an external
appeal after the enrollee receives notice from the health care plan, or
such plan's utilization review agent if applicable, of a final adverse
determination or denial or after both the plan and the enrollee have
jointly agreed to waive any internal appeal, or after the enrollee is
deemed to have exhausted or is not required to complete any internal
appeal pursuant to section 2719 of the Public Health Service Act, 42
U.S.C. § 300gg-19. Where applicable, the enrollee's health care provider
shall have sixty days to initiate an external appeal after the enrollee
or the enrollee's health care provider, as applicable, receives notice
from the health care plan, or such plan's utilization review agent if
applicable, of a final adverse determination or denial or after both the
plan and the enrollee have jointly agreed to waive any internal appeal.
Such request shall be in writing in accordance with the instructions and
in such form prescribed by subdivision five of this section. The
enrollee, and the enrollee's health care provider where applicable,
shall have the opportunity to submit additional documentation with
respect to such appeal to the external appeal agent within the
applicable time period above; provided however that when such
documentation represents a material change from the documentation upon
which the utilization review agent based its adverse determination or
upon which the health plan based its denial, the health plan shall have
three business days to consider such documentation and amend or confirm
such adverse determination.

(b) The external appeal agent shall make a determination with respect
to the appeal within thirty days of the receipt of the request therefor,
submitted in accordance with the commissioner's instructions. The
external appeal agent shall have the opportunity to request additional
information from the enrollee, the enrollee's health care provider and
the enrollee's health care plan within such thirty-day period, in which
case the agent shall have up to five additional business days if
necessary to make such determination. The external appeal agent shall
notify the enrollee, the enrollee's health care provider where
appropriate, and the health care plan, in writing, of the appeal
determination within two business days of the rendering of such
determination.

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this
subdivision, if the enrollee's attending physician states that a delay
in providing the health care service would pose an imminent or serious
threat to the health of the enrollee, or if the enrollee is entitled to
an expedited external appeal pursuant to section 2719 of the federal
Public Health Service Act, 42 U.S.C. § 300gg-19, the external appeal
shall be completed within no more than seventy-two hours of the request
therefor and the external appeal agent shall make every reasonable
attempt to immediately notify the enrollee, the enrollee's health care
provider where appropriate, and the health plan of its determination by
telephone or facsimile, followed immediately by written notification of
such determination.

(d) (A) For external appeals requested pursuant to paragraph (a) of
subdivision two of section forty-nine hundred ten of this title, the
external appeal agent shall review the utilization review agent's final
adverse determination and, in accordance with the provisions of this
title, shall make a determination as to whether the health care plan
acted reasonably and with sound medical judgment and in the best
interest of the patient. When the external appeal agent makes its
determination, it shall consider the clinical standards of the plan, the
information provided concerning the patient, the attending physician's
recommendation, and applicable generally accepted practice guidelines
developed by the federal government, national or professional medical
societies, boards and associations. Provided that such determination
shall:

(i) be conducted only by one or a greater odd number of clinical peer
reviewers,

(ii) be accompanied by a notice of appeal determination which shall
include the reasons for the determination; provided, however, that where
the final adverse determination is upheld on appeal, the notice shall
include the clinical rationale, if any, for such determination,

(iii) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan,

(iv) be binding on the plan and the enrollee, and

(v) be admissible in any court proceeding.

(B) For external appeals requested pursuant to paragraph (b) of
subdivision two of section forty-nine hundred ten of this title, the
external appeal agent shall review the proposed health service or
procedure for which coverage has been denied and, in accordance with the
provisions of this title and the external agent's experimental and
investigational treatment review plan, make a determination as to
whether the patient costs of such health service or procedure shall be
covered by the health care plan; provided that such determination shall:

(i) be conducted by a panel of three or a greater odd number of
clinical peer reviewers,

(ii) be accompanied by a written statement:

(1) that the patient costs of the proposed health service or procedure
shall be covered by the health care plan either: when a majority of the
panel of reviewers determines, based upon review of the applicable
medical and scientific evidence and, in connection with rare diseases,
the physician's certification required by subdivision seven-g of section
forty-nine hundred of this article and such other evidence as the
enrollee, the enrollee's designee or the enrollee's attending physician
may present (or upon confirmation that the recommended treatment is a
clinical trial), the enrollee's medical record, and any other pertinent
information, that the proposed health service or treatment (including a
pharmaceutical product within the meaning of subparagraph (B) of
paragraph (b) of subdivision five of section forty-nine hundred of this
article) is likely to be more beneficial than any standard treatment or
treatments for the enrollee's condition or disease or, for rare
diseases, that the requested health service or procedure is likely to
benefit the enrollee in the treatment of the enrollee's rare disease and
that such benefit to the enrollee outweighs the risks of such health
service or procedure (or, in the case of a clinical trial, is likely to
benefit the enrollee in the treatment of the enrollee's condition or
disease); or when a reviewing panel is evenly divided as to a
determination concerning coverage of the health service or procedure, or

(2) upholding the health plan's denial of coverage,

(iii) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan,

(iv) be binding on the plan and the enrollee, and

(v) be admissible in any court proceeding.

As used in this subparagraph (B) with respect to a clinical trial,
patient costs shall include all costs of health services required to
provide treatment to the enrollee according to the design of the trial.
Such costs shall not include the costs of any investigational drugs or
devices themselves, the cost of any nonhealth services that might be
required for the enrollee to receive the treatment, the costs of
managing the research, or costs which would not be covered under the
policy for noninvestigational treatments.

(C) For external appeals requested pursuant to paragraph (c) of
subdivision two of section four thousand nine hundred ten of this title
relating to an out-of-network denial, the external appeal agent shall
review the utilization review agent's final adverse determination and,
in accordance with the provisions of this title, shall make a
determination as to whether the out-of-network health service shall be
covered by the health plan.

(i) The external appeal agent shall assign one clinical peer reviewer
to make a determination as to whether the out-of-network health service
is materially different from the health service available in-network.

(ii) If a determination is made that the out-of-network health service
is not materially different from the health service available in-network
the out-of-network health service shall not be covered by the health
plan.

(iii) If a determination is made that the out-of-network health
service is materially different from the health service available
in-network, the external appeal agent shall assign a panel with an
additional two or a greater odd number of clinical peer reviewers which
shall make a determination as to whether the out-of-network health
service shall be covered by the health plan; provided that such
determination shall:

(1) be accompanied by a written statement that:

(I) the out-of-network health service shall be covered by the health
care plan either: when a majority of the panel of reviewers determines,
upon review of the health service requested by the enrollee, the
alternate recommended health service proposed by the plan, the clinical
standards of the plan, the information provided concerning the enrollee,
the attending physician's recommendation, the applicable medical and
scientific evidence, the enrollee's medical record, and any other
pertinent information that the out-of-network health service is likely
to be more clinically beneficial than the proposed in-network health
service and the adverse risk of the requested health service would
likely not be substantially increased over the in-network health
service; or

(II) uphold the health plan's denial of coverage.

(2) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan;

(3) be binding on the plan and the enrollee; and

(4) be admissible in any court proceeding.

(D) For external appeals requested pursuant to paragraph (d) of
subdivision two of section four thousand nine hundred ten of this title
relating to an out-of-network referral denial, the external appeal agent
shall review the utilization review agent's final adverse determination
and, in accordance with the provisions of this title, shall make a
determination as to whether the out-of-network referral shall be covered
by the health plan; provided that such determination shall:

(i) be conducted only by one or a greater odd number of clinical peer
reviewers;

(ii) be accompanied by a written statement:

(1) that the out-of-network referral shall be covered by the health
care plan either when the reviewer or a majority of the panel of
reviewers determines, upon review of the training and experience of the
in-network health care provider or providers proposed by the plan, the
training and experience of the requested out-of-network provider, the
clinical standards of the plan, the information provided concerning the
enrollee, the attending physician's recommendation, the enrollee's
medical record, and any other pertinent information, that the health
plan does not have a provider with the appropriate training and
experience to meet the particular health care needs of an enrollee who
is able to provide the requested health service, and that the
out-of-network provider has the appropriate training and experience to
meet the particular health care needs of an enrollee, is able to provide
the requested health service, and is likely to produce a more clinically
beneficial outcome; or

(2) upholding the health plan's denial of coverage;

(iii) be subject to the terms and conditions generally applicable to
benefits under the evidence of coverage under the health care plan;

(iv) be binding on the plan and the enrollee; and

(v) be admissible in any court proceeding.

3. No external appeal agent or clinical peer reviewer conducting an
external appeal shall be liable in damages to any person for any
opinions rendered by such external appeal agent or clinical peer
reviewer upon completion of an external appeal conducted pursuant to
this section, unless such opinion was rendered in bad faith or involved
gross negligence.

4. (a) Except as provided in paragraphs (b) and (c) of this
subdivision, payment for an external appeal shall be the responsibility
of the health care plan. The health care plan shall make payment to the
external appeal agent within forty-five days from the date the appeal
determination is received by the health care plan, and the health care
plan shall be obligated to pay such amount together with interest
thereon calculated at a rate which is the greater of the rate set by the
commissioner of taxation and finance for corporate taxes pursuant to
paragraph one of subsection (e) of section one thousand ninety-six of
the tax law or twelve percent per annum, to be computed from the date
the bill was required to be paid, in the event that payment is not made
within such forty-five days.

(b) If an enrollee's health care provider requests an external appeal
of a concurrent adverse determination and the external appeal agent
upholds the health care plan's determination in whole, payment for the
external appeal shall be made by the health care provider in the manner
and subject to the timeframes and requirements set forth in paragraph
(a) of this subdivision.

(c) If an enrollee's health care provider requests an external appeal
of a concurrent adverse determination and the external appeal agent
upholds the health care plan's determination in part, payment for the
external appeal shall be evenly divided between the health care plan and
the enrollee's health care provider who requested the external appeal
and shall be made by the health care plan and the enrollee's health care
provider in the manner and subject to the timeframes and requirements
set forth in paragraph (a) of this subdivision; provided, however, that
the commissioner may, upon a determination by the superintendent of
financial services that health care plans or health care providers are
experiencing a substantial hardship as a result of payment for the
external appeal when the external appeal agent upholds the health care
plan's determination in part, in consultation with the superintendent,
promulgate regulations to limit such hardship.

(d) If an enrollee's health care provider was acting as the enrollee's
designee, payment for the external appeal shall be made by the health
care plan. The external appeal and any designation shall be submitted on
a standard form developed by the commissioner in consultation with the
superintendent of financial services pursuant to subdivision five of
this section. The superintendent of financial services shall have the
authority upon receipt of an external appeal to confirm the designation
or request other information as necessary, in which case the
superintendent of financial services shall make at least two written
requests to the enrollee to confirm the designation. The enrollee shall
have two weeks to respond to each such request. If the enrollee fails to
respond to the superintendent of financial services within the specified
timeframe, the superintendent of financial services shall make two
written requests to the health care provider to file an external appeal
on his or her own behalf. The health care provider shall have two weeks
to respond to each such request. If the health care provider does not
respond to the superintendent of financial services requests within the
specified timeframe, the superintendent of financial services shall
reject the appeal. If the health care provider responds to the
superintendent's requests, payment for the external appeal shall be made
in accordance with paragraphs (b) and (c) of this subdivision.

5. The commissioner, in consultation with the superintendent of
financial services, shall promulgate by regulation a standard
description of the external appeal process established under this
section, which shall provide a standard form and instructions for the
initiation of an external appeal by an enrollee.