Sec. 410.5. Certification requirements

Applicants for certification as external appeal agents shall be required to submit a signed and notarized application to the commissioner, in the form and manner prescribed jointly by the superintendent and the commissioner. Such application shall include the requirements of section 4912 of the Insurance Law and Public Health Law and the following:

(a) A description of the applicant's organizational structure and capability to operate a statewide external appeal program, including:

(1) certificate of incorporation, articles of organization and bylaws or operating agreement of the applicant and, as applicable, the applicant's holding company or parent company;

(2) the applicant's organizational chart; and

(3) any existing or proposed relationships between the applicant and any health care services entities, health care providers and management service organizations. A certified external appeal agent shall not delegate any management function related to external appeal activities pursuant to title II of article 49 of the Insurance Law and Public Health Law to a management service organization or any other entity.

(b) Identification of management staff and a description of such management staff's responsibilities. Each member of the management staff shall provide personal qualifying information, in the form and manner prescribed jointly by the superintendent and the commissioner.

(c) The chief executive officer of the external appeal agent shall complete an attestation, also described in section 410.6(b) of this Part which affirms, under penalty of perjury, that:

(1) the applicant for certification as an external appeal agent does not own or control, is not owned or controlled by and does not exercise common control with any national, State or local illness, health benefit or public advocacy group, society or association of hospitals, physicians or other providers of health care services or association of health care plans; and

(2) the external appeal entity, including the medical director and all owners, officers, directors and management employees of such entity has no material professional affiliation, material familial affiliation, material financial affiliation or other affiliation proscribed by section 410.6 of this Part with any health care plan, any owner, officer, director or management employee of any health care plan, any health care provider, physician's medical group, independent practice association or provider of pharmaceutical products or services or durable medical equipment, any health care facility, or any developer or manufacturer of health services, except as specifically listed in an attachment to the attestation.

(d) Information concerning the governing board of the applicant, including roles and responsibilities, identification of the board members and a description of their qualifications.

(e) A description of the clinical peer reviewer network, including an assessment of the network's adequacy to provide statewide external appeal services.

(f) The current financial condition of the applicant, including a certified financial statement, a statement of revenues and expenses, a balance sheet and methods to repay any indebtedness, sources of capitalization and documentation of accounts, assets, reserves and deposits.

(g) The process for ensuring that clinical peer reviewers, when making an external appeal determination concerning medical necessity, consider the clinical standards of the health care plan, the information provided concerning the insured, the attending physician's recommendation and applicable generally accepted practice guidelines developed by the Federal government, national or professional medical societies, boards and associations.

(h) Policies and procedures for processing external appeals, including:

(1) a description and a chart or diagram of the sequence of steps through which an external appeal will move from receipt of the external appeal by the certified external appeal agent through notification to the insured and the insured's health care plan regarding the external appeal determination. Such description shall take into account the requirements of section 4914 of the Insurance Law and the Public Health Law and section 410.10(a)-(h) and (k) of this Part; and

(2) procedures for ensuring that no prohibited material affiliation exists with respect to the clinical peer reviewer(s) assigned to each external appeal, pursuant to section 410.6 of this Part. Such procedures shall include, for each clinical peer reviewer assigned to review the external appeal, a requirement for a duly signed and notarized attestation which affirms, under penalty of perjury, that no prohibited material affiliation exists with respect to such clinical peer reviewer's participation in the review of the external appeal pursuant to section 410.6(e)-(f) and (h) of this Part. Such attestation shall be in such form as prescribed by the superintendent and commissioner and must be maintained on file with the certified external appeal agent.

(i) A description of the fees which shall reflect the total amount that will be charged by the certified external appeal agent for external appeals, inclusive of indirect costs, administrative fees and incidental expenses, and a description of the methodology used to calculate the fees. Fees shall be approved for use for two years. Any proposed change in fees must be prior approved by the superintendent and the commissioner.

(j) A description of the certified external appeal agent's ability to accept requests for external appeals, provide requisite notifications, screen for material affiliations, respond to calls from the State and meet other requirements on a seven day per week basis.