Sec. 410.7. Screening of requests for external appeal

(a) Requests for external appeals shall be submitted to the superintendent. Upon receipt of such requests completed in the form and manner prescribed by the superintendent and commissioner, the requests shall be screened by the superintendent to determine eligibility for external appeal pursuant to the criteria detailed in section 4910(b) of the Insurance Law and section 4910.2 of the Public Health Law and the following:

(1) the insured submitting the request or on whose behalf a request for external appeal was submitted, or in the case of a retrospective adverse determination, on whose behalf a health care service is delivered, is not covered exclusively by title XVIII of the Federal Social Security Act;

(2) if the insured submitting the request or on whose behalf a request for external appeal was submitted, or in the case of a retrospective adverse determination, on whose behalf a health care service is delivered, is receiving benefits under both title XVIII and title XIX of the Federal Social Security Act, the health care service being requested is a covered benefit under title XIX;

(3) the request is substantially complete as appropriate for the type of determination to be appealed and contains the following:

(i) a copy of the final adverse determination letter from the health care plan notifying the insured that their request for health care services was denied on appeal; or

(ii) a copy of a letter from the health care plan to the insured indicating a joint agreement to waive any internal appeal offered by the health care plan; or

(iii) in the case of a retrospective adverse determination, a copy of the final adverse determination letter from the health care plan;

(iv) payment of a fee, if applicable, or a statement that a waiver of the fee has been requested;

(v) the signature of the insured, or a person authorized pursuant to law to consent to health care for the insured, authorizing release of medical and treatment information; and

(vi) in the case of a retrospective adverse determination, if the insured's health care provider is requesting an external appeal, and the insured's acknowledgment of the external appeal request and consent for the release of the insured's medical records to a certified external appeal agent is obtained at the time health care services are provided, a copy of a letter sent by the insured's health care provider to the insured notifying the insured that an external appeal of a retrospective adverse determination has been requested and that the insured's medical records will be released to a certified external appeal agent;

(4) as applicable, the insured's attending physician attestation is fully and appropriately completed by the attending physician in the form and manner prescribed by the superintendent and commissioner, or the insured has indicated that the attending physician attestation has been transmitted to the insured's attending physician. An application shall not be considered incomplete or untimely solely on the basis of failure by the attending physician to submit such documentation within the insured's 45-day time frame for initiation of an external appeal request pursuant to section 4914(b)(1) of the Insurance Law, provided however, the application will not be forwarded to an external appeal agent until the attestation is submitted;

(5) if the attending physician is recommending that the insured participate in a clinical trial, the attending physician attests that:

(i) the insured has a life-threatening or disabling condition or disease, as defined in subdivision (g-1) of section 4900 of the Insurance Law;

(ii) the insured meets the eligibility criteria for the clinical trial;

(iii) the clinical trial is open to the insured; and

(iv) the insured has been or will likely be accepted into the clinical trial;

(6) the external appeal request was submitted, in the form and manner prescribed by the superintendent and commissioner, to the superintendent within 45 days from the date the insured or, for provider initiated retrospective appeals, the insured's health care provider, 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. Unless otherwise demonstrated, it shall be presumed that the insured, or the insured's health care provider for provider initiated retrospective appeals, received the notice of final adverse determination or letter agreeing to waive the internal appeal process within eight days of the date on the notice of final adverse determination or the date on the letter agreeing to waive the internal appeal process.

(b) Screening of expedited appeals shall be initiated by the superintendent within 24 hours of receipt of the request. Screening of standard appeals shall be initiated by the superintendent within five business days of receipt of the request.

(c) In the event that additional information is required to process a request, the superintendent shall contact the initiator of the request, the insured's health care plan or the insured's attending physician, as appropriate, by the most efficient means available, to request the necessary information.

(d) A copy of appropriately completed requests for appeals of final adverse utilization review determinations made by entities certified under article 44 of the Public Health Law that are determined to be eligible for external appeal shall be transmitted to the commissioner immediately after assignment to a certified external appeal agent.

(e) The superintendent shall notify the insured and the insured's health care plan if a request is determined to be eligible for external appeal within seven days of receipt of a complete request for a standard appeal and within 48 hours of receipt of a complete request for an expedited appeal. Such notification shall include:

(1) identification of the certified external appeal agent assigned to the appeal;

(2) notification to the insured of any unavoidable material affiliations concerning the certified external appeal agent assigned to the appeal, including a brief explanation of the nature of the material affiliation(s) pursuant to section 410.6(e)(1) of this Part;

(3) for purposes of notifying the insured's health care plan, a copy of the insured's signed release of medical and treatment information, completed in a manner as prescribed jointly by the superintendent and commissioner and 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; and

(4) for purposes of notifying the insured's health care plan, as applicable, a copy of the attending physician's attestation.

(f) If a fee is submitted, and the health care plan's determination is upheld by the external appeal agent, the superintendent shall forward the fee to the health care plan within seven days of receipt of the external appeal agent's determination.

(g) If a fee is submitted, and the health care plan's determination is overturned in whole or in part by the external appeal agent, the superintendent shall return the fee to the insured or, in the case of a provider initiated retrospective appeal, the insured's health care provider, within seven days of receipt of the external appeal agent's determination.

(h) Those requests determined to be ineligible for external appeal shall be returned to the insured or, in the case of a provider initiated retrospective appeal, the insured's health care provider, by the superintendent, with notification to the insured's health care plan and attending physician, as appropriate, accompanied by an explanation as to why the request was determined to be ineligible for external appeal within seven days of receipt of a complete request for a standard appeal and within 48 hours of receipt of a complete request for an expedited appeal.