Sec. 410.3. Standard description of the external appeal process

(a) Health care plans shall provide insureds, and upon request, health care providers, with a copy of the standard description of the external appeal process developed jointly by the superintendent and commissioner, including a form and instructions for insureds to request an external appeal. The standard description, request form and instructions for the external appeal process developed jointly by the superintendent and commissioner shall include, but not be limited to:

(1) a statement of the insured's right to an external appeal of health care services denied pursuant to a utilization review determination by the insured's health care plan on the basis that the services are not medically necessary or that the services are experimental or investigational;

(2) a description of the eligibility criteria for an external appeal pursuant to section 4910 of the Insurance Law and Public Health Law and the following:

(i) Medicare cannot be the insured's only source of health services; and

(ii) insureds receiving benefits under both Medicaid and Medicare are eligible for the external appeal process only for denials of benefits that are covered under Medicaid;

(3) notification that insureds receiving benefits under Medicaid may also file a complaint through the fair hearing process and that the determination in the fair hearing process will be the one that controls;

(4) notification of the time frames within which the certified external appeal agent must make a determination on expedited and nonexpedited external appeals;

(5) notification that insureds requesting an expedited external appeal or an external appeal of a health care plan's denial because the requested health care service is considered to be experimental or investigational should forward the attending physician's attestation to the insured's attending physician to complete;

(6) notification that requests for an external appeal must be accompanied by the appropriate fee, as determined by the insured's health care plan, or a statement that a waiver of the fee has been requested, in order to be eligible for an external appeal;

(7) a description of the responsibility of the insured's health care plan to send the insured's medical and treatment records to the certified external appeal agent, provided that the certified external appeal agent may request additional information from the insured, the insured's health care provider or the insured's health care plan at any time;

(8) a description of the right of the insured and the insured's health care provider to submit information to the certified external appeal agent, regardless of whether the agent has requested any information, within 45 days from when the insured received notice that the health care plan made a final adverse determination or within 45 days from when the insured received a letter from the health care plan affirming that both the insured and the insured's health care plan jointly agreed to waive the internal appeal process, provided that the external appeal agent has not yet rendered a determination on the appeal;

(9) a description of the process for notifying the insured and the insured's health care plan of the certified external appeal agent's determination;

(10) instructions for submitting the request for external appeal to the superintendent;

(11) instructions for contacting the State if the insured or health care provider has questions;

(12) notification that an insured or a person authorized pursuant to law to consent to health care for the insured must sign the request and consent to the release of medical and treatment records for an insured to be eligible for an external appeal; and

(13) a signature line for the insured's consent to the release of his or her medical and treatment records, including HIV, mental health and alcohol and drug abuse records, to the certified external appeal agent assigned to review the insured's external appeal, and the expiration date of the authority to release the insured's medical and treatment records in accordance with section 2782 of the Public Health Law for confidential HIV related information and sections 33.13 and 33.16 of the Mental Hygiene Law for mental health related information.

(b) The superintendent and commissioner shall develop a separate form and instructions for an insured's health care provider to request an external appeal in connection with a retrospective adverse utilization review determination pursuant to section 4904 of the Insurance Law. The form must include notification that an insured or a person authorized pursuant to law to consent to health care for the insured must sign the request and consent to the release of medical and treatment records for the health care provider to be eligible for an external appeal.