Sec. 410.9. Responsibilities of health care plans

Health care plans shall be responsible for compliance with all applicable requirements of article 49 of the Insurance Law and with the following:

(a) Insured requests for experimental or investigational health care services that would otherwise be a covered benefit except for the health care plan's determination that the health care service is experimental or investigational shall be subject to utilization review pursuant to title I of article 49 of the Insurance Law.

(b) If a health care plan requires information necessary to conduct a standard internal appeal pursuant to section 4904 of the Insurance Law, the health care plan shall notify the insured and the insured's health care provider, in writing, within 15 days of receipt of the appeal, to identify and request the necessary information. In the event that only a portion of such necessary information is received, the health care plan shall request the missing information, in writing, within five business days of receipt of the partial information. In the case of expedited appeals, the health care plan shall immediately notify the insured and the insured's health care provider by telephone or facsimile to identify and request the necessary information, followed by written notification. The period of time to make an appeal determination under section 4904 of the Insurance Law begins upon a health care plan's receipt of necessary information.

(c) If a health care plan offers two levels of internal appeals, the health care plan may not require the insured to exhaust the second level of internal appeal to be eligible for an external appeal.

(d) Notices of final adverse determinations shall comply with all requirements of article 49 of the Insurance Law and with all applicable Federal laws and rules.

(e) Each notice of a final adverse determination of an expedited or standard utilization review appeal under section 4904 of the Insurance Law shall be in writing, dated and include the following:

(1) a clear statement describing the basis and clinical rationale for the denial as applicable to the insured;

(2) a clear statement that the notice constitutes the final adverse determination;

(3) the health care plan's contact person and his or her telephone number;

(4) the insured's coverage type;

(5) the name and full address of the health care plan's utilization review agent;

(6) the utilization review agent's contact person and his or her telephone number;

(7) a description of the health care service that was denied, including, as applicable and available, the dates of service, the name of the facility and/or physician proposed to provide the treatment and the developer/manufacturer of the health care service;

(8) a statement that the insured may be eligible for an external appeal and the time frames for requesting an appeal; and

(9) for health care plans that offer two levels of internal appeals, a clear statement written in bolded text that the 45-day time frame for requesting an external appeal begins upon receipt of the final adverse determination of the first level appeal, regardless of whether or not a second level appeal is requested, and that by choosing to request a second level internal appeal, the time may expire for the insured to request an external appeal.

(f) A written notice of final adverse determination concerning an expedited utilization review appeal under section 4904 of the Insurance Law shall be transmitted to the insured within 24 hours of the rendering of such determination.

(g) If the insured and the health care plan have jointly agreed to waive the internal appeal process offered by the health care plan, the information required in subdivision (e) of this section must be provided to the insured simultaneously with the letter agreeing to such waiver. The letter agreeing to such waiver and the information required in subdivision (e) of this section must be provided to the insured within 24 hours of the agreement to waive the health care plan's internal appeal process.

(h) Health care plans shall facilitate the prompt completion of external appeal requests, including but not limited to, the following:

(1) health care plans shall provide the insured with a copy of the standard description of the external appeal process as developed jointly by the superintendent and commissioner, including a form and instructions for requesting an external appeal along with a description of the fee, if any, charged to insureds for an external appeal, criteria for determining eligibility for a waiver of such fees based on financial hardship, and the process for requesting a waiver of such fees based on financial hardship:

(i) simultaneous with a notice of a final adverse determination that a health care service is not medically necessary, including on the grounds that the health care service is experimental or investigational; or

(ii) simultaneous with the written confirmation of agreement between the health care plan and the insured to waive the health care plan's internal appeal process; and

(iii) within three business days of a request by an insured or an insured's designee;

(2) transmitting insured's medical and treatment records pursuant to an appropriately completed release or releases signed by the insured or by a person authorized pursuant to law to consent to health care for the insured and, in the case of medical necessity appeals, transmitting the clinical standards used to determine medical necessity for health care services within three business days of receiving notification of the external appeal from the certified external appeal agent to which the subject appeal is assigned, or in the case of an expedited appeal, within 24 hours of receiving notification of the external appeal from the certified external appeal agent to which the subject appeal is assigned;

(3) providing information requested by the assigned certified external appeal agent as soon as is reasonably possible, but in no event shall the health care plan take longer than two business days to provide the requested information for standard appeals. Requests for information relative to expedited appeals must be provided to the certified external appeal agent within 24 hours; and

(4) providing a form and instructions, developed jointly by the superintendent and commissioner, for an insured's health care provider to request an external appeal in connection with a retrospective adverse utilization review determination under section 4904 of the Insurance Law, within three business days of a health care provider's request for a copy of the form. For retrospective adverse determinations, health care plans may charge the appealing health care provider up to $50 for each appeal, provided however, that no fee may be charged to an insured for a health care provider's external appeal of a retrospective adverse determination and provided further, that in the event a retrospective adverse determination is overturned on external appeal, the full amount of the fee shall be refunded to the appealing health care provider.

(i) In the event an adverse determination is overturned on external appeal, or in the event that the health care plan reverses a denial which is the subject of external appeal, the health care plan shall provide, arrange to provide or make payment for the health care service(s) which is the basis of the external appeal to the insured to the extent that such health care service(s) is provided while the insured has coverage with the health care plan.

Nothing herein shall be construed to require the health care plan to provide any health care services to an individual who is no longer insured by that health care plan at the time of an external appeal agent's reversal of a health care plan's utilization review denial.

(j) Health care plans shall establish the fee, if any, to be charged to insureds for an external appeal and shall have a methodology for determining an insured's eligibility for a waiver of the fee requirement for an external appeal based on financial hardship pursuant to section 4910(c) of the Insurance Law and section 4910.3 of the Public Health Law.

(k) Nothing in this Part shall be construed to relieve the health care plan of financial responsibility for external appeals that have been assigned to a certified external appeal agent. In the case of a health care plan reversing a denial which is the subject of an external appeal after assignment of the appeal to a certified external appeal agent, but prior to assignment of clinical peer reviewer(s), the health care plan shall be assessed an administrative fee as prescribed by the superintendent and commissioner.