Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47 and student health plans established pursuant to Insurance Law § 1124), and HMOs subject to Public Health Law (PHL) Article 44 (including Medicaid managed care, Child Health Plus, Essential Plan, and managed long term care plans).  Also applies to any other contract or product for which the Superintendent determines such disclosure to be appropriate.  Such disclosure is appropriate and recommended for dental and vision coverage with a provider network (and is required upon issuance or renewal on and after December 7, 2023 for such coverage).   

1. Provider Directory Information:
   • Insurance Law §§ 3217-a(a)(17) and 4324(a)(17) and Public Health Law § 4408(1)(r) require health plan provider directories to include:
     • A listing by specialty of the name, address, telephone number, and digital contact information of all participating providers, including facilities, and, whether the provider is accepting new patients.
     • In the case of mental health and substance use disorder providers, any affiliations with participating facilities certified or authorized by the NYS Office of Mental Health (OMH) or the Office of Addiction Services and Supports (OASAS), and any restrictions regarding the availability of the individual provider’s services.  For example, the provider directory should indicate whether an individual provider treats only adults or children or individuals with particular mental health conditions, whether the individual provider is an employee of or affiliated with a facility, or whether the individual provider renders services in a specific facility location.
     • In the case of physicians, board certification, languages spoken and any affiliations with participating hospitals.
2. Provider Directory Availability & Updates:
   • Insurance Law §§ 3217-a(a)(17) and 4324(a)(17) and Public Health Law § 4408(1)(r) require a health plan to post the provider directory on its website and further requires a health plan to update its website within 15 days of the addition or termination of a provider from its network or a change in a physician's hospital affiliation.
   • Insurance Law §§ 3217-a(a) and 4324(a) and Public Health Law § 4408(1) also require a health plan to provide the provider directory upon request to an insured or prospective insured.  

Applies to insurers subject to Insurance Law Article 32, corporations organized under Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), and HMOs certified pursuant to PHL Article 44 (including Medicaid managed care, Child Health Plus, Essential Plan, and managed long term care plans) that have contracts with providers.  The requirements are not limited to comprehensive health insurance coverage and apply to dental, vision, hospital-only, and medical-only coverage when there are contracts with providers.

1. Health Plan Provider Contracts & Requirements Regarding Provider Directory Information:
   • Insurance Law §§ 3217-b(m) and (n), 4325(n) and (o), and Public Health Law 4406-c(11) and (12) require health plan provider contracts to include:
     • A provision that requires the health care provider to have in place business processes to ensure the timely provision of provider directory information to the health plan.  A health care provider must submit such provider directory information to a health plan, at a minimum, when a provider begins or terminates a network agreement with a health plan; when there are material changes to the content of the provider directory information of the health care provider; and at any other time, including upon the health plan’s request, as the provider determines to be appropriate.  Provider directory information includes the name, address, specialty, telephone number, and digital contact information of the health care provider; whether the provider is accepting new patients; for mental health and substance use disorder services providers, any affiliations with participating facilities certified or authorized by OMH or OASAS, and any restrictions regarding the availability of the provider’s services; and in the case of physicians, board certification, languages spoken, and any affiliations with participating hospitals.
     • A provision that the provider shall reimburse the insured for the full amount paid by the insured in excess of the in-network cost-sharing amount, plus interest, at an interest rate determined by the superintendent in accordance with 42 U.S.C. § 300gg-139(b) for the services involved when the insured is provided with inaccurate network status information by the health plan in a provider directory or in response to a request that stated that the provider was a participating provider when the provider was not a participating provider.
   • Insurance Law §§ 3217-b(n), 4325(o), and Public Health Law 4406-c(12) provide that nothing in the Insurance Law or Public Health Law prohibits a provider from requiring in a provider contract that the health plan remove, at the time of termination of such contract, the provider from the health plan’s provider directory and that the health plan bear financial responsibility for providing inaccurate network status information to an insured.
   • Insurance Law §§ 3217-b(n), 4325(o), and Public Health Law 4406-c(12) provide that if a health plan provides inaccurate network status information to the insured indicating the provider was a participating provider when the provider was not a participating provider, the health plan must reimburse the provider for the out-of-network services regardless of whether the insured’s coverage includes out-of-network services.  

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47 and student health plans established pursuant to Insurance Law § 1124), and HMOs subject to PHL Article 44 if OON benefits are provided.  Also applies to any other contract or product for which the Superintendent determines such disclosure to be appropriate. Such disclosure, except for the disclosure of the OON reimbursement examples, is appropriate and recommended for dental and vision coverage with a provider network  (and is required upon issuance or renewal on and after December 7, 2023 for such coverage).  Does not apply to Medicaid managed care, Child Health Plus, Essential Plan, or managed long term care plans.

1. OON Reimbursement Compared to UCR:
   • Insurance Law §§ 3217-a(a)(19)(B) and 4324(a)(20)(B) and Public Health Law § 4408(1)(t)(ii) require health plans to disclose the amount they will reimburse under their OON methodology set forth as a percentage of the usual and customary cost (UCR).  This requirement will be satisfied if a health plan provides the approximate percentage of UCR that equates to the reimbursement under the health plan's OON methodology.
2. OON Reimbursement Examples:
   • Insurance Law §§ 3217-a(a)(19)(C) and 4324(a)(20)(C) and Public Health Law § 4408(1)(t)(iii) require health plans to provide examples of anticipated out-of-pocket costs for frequently billed OON services.  This requirement will be satisfied if a health plan  provides at least three examples for comprehensive health insurance coverage which include examples for a colonoscopy (CPT code 45380), spinal surgery (CPT code 63030), and breast reconstruction (CPT code 19357) in a format provided by DFS.
3. Determining OON Out-of-Pocket Costs:
   • Insurance Law §§ 3217-a(a)(20) and 4324(a)(21) and Public Health Law § 4408(1)(u) require health plans to disclose information that permits an insured or prospective insured to determine out-of-pocket costs for OON services.  A health plan may satisfy this requirement through a link on its website to an independent source which can be used to determine UCR for OON services. FAIR Health may be used as the independent source to determine UCR and use of FAIR Health will satisfy the requirements of these sections. If a health plan uses FAIR Health, the health plan will need to contact FAIR Health in order to set up a licensing arrangement to establish a link.  If a health plan does not use FAIR Health, the health plan will need to contact DFS for approval.
4. Reimbursement for Specific OON Service:
   • Insurance Law §§ 3217-a(b)(14) and 4324(b)(14) and Public Health Law § 4408(2)(n) require health plans to disclose, upon request, the approximate dollar amount that they will pay for a specific out-of-network service.  If a health plan is unable to identify a specific dollar amount because the current procedural terminology (CPT) code(s) or diagnosis code(s) were not submitted with the request, a health plan may disclose the range of dollar amounts that it will pay for the OON service. The health plan should also include a disclaimer that the dollar amount could change based on the actual services provided and CPT code(s) or diagnosis code(s) submitted.  A health plan may use either of the following disclaimer statements:
     • Please note that this amount is only an estimate based on the information submitted and not a guaranteed amount.  Your actual out-of-pocket costs may differ based on a number of factors, including, for example, your eligibility, the actual services provided to you, the procedure codes submitted by your provider, whether other providers render services to you, the location of the services, your cost-sharing requirements, or other variables that may impact the cost of services.  Also, even though your provider may bill separately for multiple procedure codes, we may determine that there is a single code that should have been billed for all of the procedures, and we will pay for only that code.
     • This payment estimate is not a guarantee. The actual payment will depend on a number of factors, including, for example, the services you receive, the amount billed by your doctor or other provider, the actual procedure codes submitted, and your eligibility for benefits at the time you receive the services.

Questions on Heath Plan Disclosure Requirements for OON Coverage and Services

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44.  Does not apply to Medicaid managed care, Child Health Plus, Essential Plan, or managed long term care plans.

1. Insurance Law § 3241(b)(1)(A) requires health plans that issue a comprehensive group policy that covers out-of-network services to make available at least one alternative option for out-of-network ("OON") coverage using UCR after imposition of 20% coinsurance ("OON make available benefit").  UCR in this case is the 80th percentile of charges for the particular health care service performed by a provider in the same or similar specialty and provided in the same geographical area as the requested service as reported in a benchmarking database maintained by a nonprofit organization specified by the Superintendent of Financial Services. FAIR Health data may be used as the independent source to determine UCR. A health plan will need to contact FAIR Health in order to set up a licensing arrangement to use FAIR Health data.
2. Under the OON make available benefit, all OON services must be reimbursed using UCR with the insured responsible for 20% coinsurance.  The plan may not vary from this requirement.
3. The OON make available benefit is applied on a licensed entity basis.  For example, if an insurer offers out-of-network coverage but an affiliated HMO does not, only the insurer is required to offer the OON make available benefit.
4. The OON make available benefit does not require health plans to offer OON benefits in a market in which they do not currently offer any coverage, or in which they do not offer out-of-network coverage.  For example, if a health plan only offers coverage to large groups, or only offers out-of-network coverage to large groups, the health plan would not be required to offer the OON make available benefit in the small group market.
5. If an HMO offers combination products with an Insurance Law Article 42 and 43 POS product, either of the Article 42 or 43 affiliates can satisfy the OON make available benefit requirement.
6. The OON make available benefit is not required to attach to every metal level.  A health plan should not offer the OON make available benefit at the bronze level only, unless the health plan offers all other OON coverage at the bronze level only.
7. A health plan may impose a deductible on the OON make available benefit if the deductible is comparable to the deductible imposed on other out-of-network options offered by the health plan.
8. The OON coverage may be made available through a rider or it can be embedded in a contract.
9. Pursuant to federal guaranteed availability requirements and state NYSOH participation requirements, if a health plan offers the OON make available benefit outside the NYSOH, and the health plan participates on the NYSOH, it is required to offer the benefit inside the NYSOH.  If a health plan offers the OON make available benefit inside the NYSOH, it is required to offer the benefit outside the NYSOH.  A health plan is required to offer the OON make available benefit at the same metal level in the same geographical region inside and outside the NYSOH.
10. If there is no OON coverage available in a rating region, a health plan that issues a comprehensive group policy in the rating region may be required to make available at least one option for OON coverage using UCR after imposition of 20% coinsurance.

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established pursuant to Insurance Law § 1124, and HMOs  certified pursuant to PHL Article 44.  Does not apply to Medicaid managed care, Child Health Plus, Essential Plan, or managed long term care plans.

1. FAIR Health may be used as the independent source to determine UCR.  If a health plan uses FAIR Health as its independent source, it should contact FAIR Health to set up a licensing arrangement to use FAIR Health data.  If a health plan does not use FAIR Health, the health plan will need to contact DFS for approval.

Applies to health care claims submitted to insurers subject to Insurance Law Article 32, corporations licensed or certified pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Medicaid managed care, Child Health Plus, and Essential Plan).  The requirements are not limited to comprehensive health insurance coverage and apply to dental, vision, hospital-only, and medical-only coverage.  Does not apply to managed long term care plans.

• Insurance Law § 3224-a requires health plans to accept claims submitted by an insured in writing and electronically.  A health plan may establish a designated electronic and mailing address for submission of claims and should prominently post the address on its website and in plan materials.  A health plan may also post language on its website to refer insureds to an address on their health plan identification card.

Questions on Claim Submission

Applies to insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, and HMOs subject to PHL Article 44 (including Medicaid managed care, Child Health Plus, Essential Plan, and managed long term care plans) that impose utilization review (e.g., medical necessity) requirements.  The requirements are not limited to comprehensive health insurance coverage and apply to dental, vision, hospital-only, and medical-only coverage that impose utilization review requirements.

1. Insurance Law § 4903(b)(1)(i) and (ii) and Public Health Law § 4903(2)(a)(i) and (ii) require initial utilization review preauthorization determinations to identify whether the services are considered in-network or out-of-network and whether the insured will be responsible for any payment, other than any applicable copayment, coinsurance, or deductible.
   • This requirement is not applicable to concurrent or retrospective utilization determinations pursuant to Insurance Law § 4903(c) and (d) and Public Health Law § 4903(3) and (4).
   • Initial determinations that deny an out-of-network service or referral because the insured does not have out-of-network benefits are subject to the grievance procedure under Insurance Law § 4802 and Public Health Law § 4408-a and are not subject to the utilization review requirements of Insurance Law § 4903(b) and Public Health Law § 4903(2).
2. Health plans may use the following template language in their initial utilization review preauthorization approval determinations to comply with Insurance Law § 4903(b)(1)(i) and (ii) and Public Health Law § 4903(2)(a)(i) and (ii) to address when the provider has not been identified; when the provider has been identified; and when the provider is out-of-network.  The provider name, if  identified, should be  included in the template language or otherwise listed in the letter.
   • You have not identified the provider that will provide this service, and we have not made a determination whether the services are considered in-network or out-of-network.
   • [provider name], the provider that you identified to provide this service, is a participating provider with our plan.  You will not be responsible for any payments beyond your applicable in-network cost-sharing requirements.
   • [provider name], the provider that you identified to provide this service, does not participate with our plan.  This service is being authorized under your out-of-network benefits.  You will be responsible for the difference between our payment and the provider's charge, in addition to your applicable out-of-network cost-sharing requirements.  If you believe we do not have an appropriate in-network provider to provide this service, you may ask us for a referral or authorization for an out-of-network provider to be treated as an in-network provider.  You must ask us for the referral or authorization before you get the service.  To make this request, contact us at XXXX.  {Drafting Note: To be used for PPO or POS coverage.}
3. Health plans may use the following template language in their initial utilization review preauthorization denial determinations to comply with Insurance Law § 4903(b)(1)(i) and (ii) and Public Health Law § 4903(2)(a)(i) and (ii) when the provider has not been identified:
   • You will be responsible for the full cost of the service if you receive it.
4. Health plans may use the following template language in their initial utilization review preauthorization denial determinations to comply with Insurance Law § 4903(b)(1)(i) and (ii) and Public Health Law § 4903(2)(a)(i) and (ii) when the provider has been identified and the health plan determined that the provider is out-of-network.  The provider name should be identified in the template language or otherwise listed in the letter.
   • You will be responsible for the full cost of the service if you receive it; and
   • [provider name], the provider that you identified to provide this service, is a not a participating provider with our plan.  If you appeal the medical necessity denial and you also believe that there is not an appropriate in-network provider to provide this service, you must submit a written statement from your attending physician that: (1) in-network providers do not have the appropriate training and experience to meet your particular health care needs; and (2) recommends an out-of-network provider with the appropriate training and experience to meet your particular health care needs who is able to perform the requested service.  For this purpose, your attending physician must be a licensed, board certified or board eligible physician qualified to practice in the specialty area appropriate to treat you for the service.
5. Health plans may use the following template language in their initial utilization review preauthorization denial determinations to comply with Insurance Law § 4903(b)(1)(i) and (ii) and Public Health Law § 4903(2)(a)(i) and (ii) when the provider has been identified and the health plan has not made a determination as to whether the provider will be considered in-network or out-of-network:
   • You will be responsible for the full cost of the service if you receive it;
   • No decision was made as to whether the services are in-network or out-of-network; and
   • If you appeal the medical necessity denial and you also believe that there is not an appropriate in-network provider to provide this service, you must submit a written statement from your attending physician that: (1) in-network providers do not have the appropriate training and experience to meet your particular health care needs; and (2) recommends an out-of-network provider with the appropriate training and experience to meet your particular health care needs who is able to perform the requested service.  For this purpose, your attending physician must be a licensed, board certified or board eligible physician qualified to practice in the specialty area appropriate to treat you for the service.
6. Insurance Law § 4903(b)(1)(iii) and Public Health Law § 4903(2)(a)(iii) apply if the insured has out-of-network coverage.  These provisions require initial utilization review preauthorization approval determinations to identify the dollar amount a health plan will pay if the service is reimbursed under the insured's out-of-network benefits (such as PPO or POS coverage).  If a health plan is unable to identify a specific dollar amount because the CPT code or codes or diagnosis code were not submitted with the request, a health plan may disclose the range of dollar amounts that it will pay for the OON service.  Health plans may use the following template language in their initial utilization review preauthorization approval determinations to address the dollar amount a health plan will pay if the service is reimbursed under the insured's out-of-network benefits (such as PPO or POS coverage):
   • Our payment for these services can range from $XX to $XX, depending on the actual services provided.
   • Based on the CPT codes you provided, our payment for these services will be approximately $XX.
7. Health plans should also include a disclaimer that the approval is not a guaranteed payment amount and the dollar amount could change based on the actual services provided and CPT code or codes submitted.  Health plans may use the following disclaimer language:
   • Please note that this amount is only an estimate based on the information submitted and not a guaranteed amount.  Your actual out-of-pocket costs may differ based on a number of factors, including, for example, your eligibility, the actual services provided to you, the procedure codes submitted by your provider, whether other providers render services to you, the location of the services, your cost-sharing requirements, or other variables that may impact the cost of services.  Also, even though your provider may bill separately for multiple procedure codes, we may determine that there is a single code that should have been billed for all of the procedures and we will pay for only that code.
   • This payment estimate is not a guaranteed amount.  The actual payment will depend on a number of factors, including, for example, the services you receive, the amount billed by your doctor or other provider, the actual procedure codes submitted, and your eligibility for benefits at the time you receive the services.
8. Insurance Law § 4903(b)(1)(iv) and Public Health Law § 4903(2)(a)(iv) apply if the insured has out-of-network coverage.  These provisions require initial utilization review preauthorization approval determinations to provide information explaining how the insured may determine the anticipated out-of-pocket costs for out-of-network services in a geographical area or zip code based upon the difference between what the health plan will reimburse and the usual and customary cost for out-of-network services.  Health plans may use the following language to comply with this requirement:
   • You can determine your anticipated out-of-pocket cost for these services by contacting your provider for the amount that he/she will charge, or by visiting [link to FAIR Health or plan calculator] to determine the usual and customary cost for these services in your geographic area or zip code, and comparing it to our estimated payment.  {Drafting Note: If a health plan will be using FAIR Health as its independent source, it will need to contact FAIR Health to set up a licensing arrangement.}

Questions on Initial Utilization Review Preauthorization Approval Determinations

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, and HMOs subject to PHL Article 44 (including Medicaid managed care, Child Health Plus, Essential Plan, and managed long term care plans) that impose utilization review (e.g., medical necessity) requirements and have a network of providers.  Also applies to managed care plans as defined in Insurance Law § 4801(c), including dental and vision coverage that meets the definition of a managed care plan.

1. If a health plan denies a referral to an out-of-network provider because the health plan has an in-network provider(s) with the appropriate training and experience to meet the particular health care needs of an insured and who is able to provide the requested service, the health plan must, in its initial denial letter:
   • Provide the name of the in-network provider(s) with the appropriate training and experience who are able to provide the requested service.
   • Include language that provides, “If you believe there is not an appropriate in-network provider to provide this service, you may file a utilization review appeal if you submit a written statement from your attending physician that: (1) in-network providers do not have the appropriate training and experience to meet your particular health care needs; and (2) recommends an out-of-network provider with the appropriate training and experience to meet your particular health care needs who is able to perform the requested service.  For this purpose, your attending physician must be a licensed, board certified or board eligible physician qualified to practice in the specialty area appropriate to treat you for the service.”
2. If an insured requests a referral or authorization to an out-of-network provider for a service that requires preauthorization, and the health plan believes the service could be provided in-network and further believes that the service is not medically necessary, the health plan should include both denial reasons in one initial denial letter.  If a health plan is unable to include both denial reasons in one initial denial letter, the health plan may issue two separate initial denial letters, an initial grievance determination for the services of the out-of-network provider, and an initial utilization review determination for the medical necessity of the service.  If the health plan issues two separate letters, the health plan should, in each letter, clarify that another letter has been issued.
3. If an insured requests a referral or authorization to an out-of-network provider for a service that requires preauthorization, and the health plan believes the service could not be provided in-network but further believes the service is not medically necessary, the health plan should, in its initial determination:
   • Deny the service as not medically necessary and also clearly indicate agreement that the referral to the out-of-network provider is appropriate (in the event the medical necessity determination is overturned on appeal).  If the medical necessity determination is overturned on internal appeal or external appeal, the health plan should not require the insured to repeat the authorization request for the out-of-network referral.
4. If an insured requests a referral or authorization to an out-of-network provider for a service that requires preauthorization, and the health plan believes the service is not medically necessary, but has not made a determination whether the service could be provided in-network, the health plan should, in its initial determination:
   • Deny the service as not medically necessary;
   • State that no decision was made regarding the out-of-network referral request;
   • State that the out-of-network referral request will be considered when the insured appeals the medical necessity determination; and
   • State that the insured should submit a written statement from his or her attending physician that:  (1) in-network providers do not have the appropriate training and experience to meet the insured's particular health care needs; and (2) recommends an out-of-network provider with the appropriate training and experience to meet the insured's particular health care needs who is able to perform the requested service.  State that the attending physician must be a licensed, board certified or board eligible physician qualified to practice in the specialty area appropriate to treat the insured for the service. 

   If the insured submits the written statement, the health plan should address the out-of-network referral request on appeal regardless of whether the initial determination that the services were not medically necessary is upheld or reversed.  If services are denied on appeal, the appeal determination should include a clear statement describing the basis of the denial (medical necessity, the out-of-network referral, or both).  The health plan should also provide external appeal rights as required by Insurance Law § 4904(c)(1) and (2) and Public Health Law § 4904(3)(a) and (b).

Questions on Out-of-Network Referral Denial - Initial Denials

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, and HMOs subject to Public Health Law (PHL) Article 44 (including Medicaid managed care, Child Health Plus, Essential Plan, and managed long term care plans) that impose utilization review (e.g., medical necessity) requirements and have a network of providers.  Also applies to managed care plans as defined in Insurance Law § 4801(c) including dental and vision coverage that meets the definition of a managed care plan.

1. Insurance Law § 4904(a-2) and Public Health Law § 4904(1-b) require an appeal regarding a referral to an out-of-network provider to be treated as a utilization review appeal and not a grievance if the insured submits a written statement from the insured's attending physician that:  (1) the in-network provider(s) does not have the appropriate training and experience to meet the insured's particular health care needs; and (2) recommends an out-of-network provider with the appropriate training and experience to meet the insured's particular health care needs who is able to perform the requested service.
2. If a health plan denies both a referral or authorization to an out-of-network provider and preauthorization for a service, and an insured appeals the denial of a referral or authorization to an out-of-network provider and provides the requisite written statement from his or her attending physician described above, the health plan should review both issues on appeal and address both the referral to the out-of-network provider and the medical necessity of the service in the final adverse utilization review appeal determination.  The final adverse determination should indicate whether the health plan is upholding its denial of a referral to an out-of-network provider, and whether it is upholding its medical necessity denial (because it does not believe the services are medically necessary either in or out-of-network).
3. A health plan, in its final adverse utilization review appeal determination of a referral to an out-of-network provider, should provide the name of at least one in-network provider with the appropriate training and experience to meet the insured's particular health care needs who is able to perform the requested service.  The external appeal agent will only consider the providers listed in the final adverse utilization review appeal determination letter when making its determination about the health plan's in-network providers.
4. A health plan should verify that the in-network provider(s) that it identified performs the requested service or treatment, is accepting new patients, and can see the insured within a reasonable amount of time, taking the insured's condition into consideration, at the time the final adverse utilization review appeal determination letter is issued.

Questions on Out-of-Network Referral Denial – Internal Appeals

Applies to comprehensive health insurance policies and contracts issued by insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, and HMOs subject to PHL Article 44 (including Medicaid managed care plans, Child Health Plus, Essential Plan, and managed long term care plans) that impose utilization review (e.g., medical necessity) requirements.  Also applies to managed care plans including dental and vision coverage that meets the definition of a managed care plan.

1. Insurance Law § 4914(b)(4)(D)(ii)(I) and Public Health Law § 4914(2)(d)(D)(ii)(1) require external appeal agents to consider the training and experience of the in-network provider or providers proposed by the plan, the training and experience of the out-of-network provider, the clinical standards of the plan, the information provided concerning the insured, the attending physician's recommendation, the insured's medical record, and any other pertinent information.
2. Insurance Law § 4914(b)(4)(D)(ii)(I) and Public Health Law § 4914(2)(d)(D)(ii)(1) provide that an external appeal agent shall overturn a health plan's denial if the agent finds that the health plan does not have a provider with the appropriate training and experience to meet the particular health care needs of the insured who is able to provide the requested service, and that the out-of-network provider has the appropriate training and experience to meet the particular health care needs of an insured, is able to provide the requested health service, and is likely to produce a more clinically beneficial outcome.
3. External appeal agents may need to request information from the health plan to determine whether the in-network provider is able to provide the requested health service.  External appeal agents may also need to request information from the insured and the insured's attending physician to determine whether the recommended out-of-network provider is able to provide the requested health service.
4. If a final adverse determination denies both a referral or authorization to an out-of-network provider and a preauthorization for a service as not medically necessary, the external appeal agent will first review the medical necessity of the service.
   • If the external appeal agent finds the service to be medically necessary, the external appeal agent will then review whether the health plan has a provider with the appropriate training and experience to meet the particular health care needs of the insured who is able to provide the requested service.
   • If the external appeal agent does not find the service to be medically necessary, the external appeal agent will not review whether the health plan has a provider with the appropriate training and experience to meet the particular health care needs of the insured who is able to provide the requested service.

The health plan provider directory, provider contract, disclosure, utilization review, external appeal for an out-of-network referral denial, and claim submission requirements do not apply to the following products:

• Medicare. 
• Group Medicare-eligible retiree benefits providing Medicare-supplement-type benefits under a group policy covering only retirees or covering both active employees and retirees.
• Medicare Supplement plans.
• Medicare Advantage plans.
• Fixed indemnity and limited indemnity plans (non-network plans) (the utilization review requirements apply if the plan performs utilization review). 
• Medicaid fee-for-service.
• Coverage issued outside New York.
• Self-funded coverage.

Applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Medicaid managed care plans, Child Health Plus, and Essential Plan).

1. Financial Services Law § 603(h) defines a "surprise bill" as a bill for health care services, other than emergency services, received by: (1) an insured for services rendered by a non-participating provider at a participating hospital or ambulatory surgical center, where a participating provider is unavailable, or a non-participating provider renders services without the insured's knowledge, or unforeseen medical services arise at the time the health care services are rendered; provided, however, that a surprise bill shall not mean a bill received for health care services when a participating provider is available and the insured has elected to obtain services from a non-participating provider; or (2) an insured for services rendered by a non-participating provider where the services were referred by a participating physician to a non-participating provider without explicit written consent of the insured acknowledging that the participating physician is referring the insured to a non-participating provider and that the referral may result in costs not covered by the health plan.
   • For a participating provider to be considered available, the insured should have a meaningful opportunity to choose an in-network provider in advance of the services.  Notice provided to the insured at least 72 hours in advance of the health care services that is in compliance with the requirements of the federal No Surprises Act and 45 C.F.R. § 149.420 (using the Standard Written Notice and Consent Form) provides a meaningful opportunity for the insured to choose an in-network provider.  Hoverer, the insured may not waive their surprise bill protections for ancillary services under 45 C.F.R. § 149.420(b)(1).     
   • The federal No Surprises Act § 102, 42 U.S.C. § 300gg-132, and 45 C.F.R. § 149.420(b) permit insureds to waive their protections from balance billing for bills from non-participating providers at in-network facilities if the notice and consent criteria are met for services that are not ancillary services.  Pursuant to 45 C.F.R. § 149.420, the notice and consent must be provided to the insured within set timeframes, use the Standard Written Notice and Consent Form, contain specified information, including a good faith estimate of the cost of the services, and meet language access standards.  The insured may not waive their surprise bill protections for ancillary services.  Under 45 C.F.R. § 149.420(b)(1), “ancillary services” mean services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether provided by a physician or non-physician practitioner; services provided by assistant surgeons, hospitalists, and intensivists; diagnostic services, including radiology and laboratory services; and items and services provided by a non-participating provider if there is no participating provider who can furnish such item or service at such facility.   
   • A surprise bill includes services referred by a participating physician to a non-participating provider without the explicit written consent of the insured acknowledging that the participating physician is referring the insured to a non-participating provider and that the referral may result in costs not covered by the health plan.  A referral to a non-participating provider occurs when (1) the health care services are performed by a non-participating provider in the participating physician's office or practice during the course of the same visit; (2) the participating physician sends a specimen taken from the patient in the physician's office to a non-participating laboratory or pathologist; or (3) for any other health care services when referrals are required under the insured's contract (i.e., a gatekeeper).
2. A surprise bill is exempt from the IDR process when physician fees are subject to schedules or other monetary limitations under any other law, including Workers Compensation, no-fault, managed long-term care, Medicare, and Medicaid fee-for-service.
3. The independent dispute resolution (IDR) process in Article 6 of the Financial Services Law could apply to surprise bills for health care services that are provided by out-of-state providers if the service is performed in part in New York and the out-of-state provider has a sufficient nexus with New York.
   • For example, if the insured is covered under an HMO or insurance policy or contract that is issued for delivery in New York and has blood drawn in New York by his or her participating physician.  The participating physician sends the sample to an out-of-state laboratory that regularly conducts business with the New York provider. The laboratory may be providing services in New York and subject to the IDR process.
4. Financial Services Law §§ 606 and 607 require health plans and providers to hold insureds harmless for a surprise bill.
5. DFS developed a standard Surprise Bill Certification Form for consumers and providers to use to attest that there has been a surprise bill.
6. If a health plan receives a bill that it believes is a surprise bill, but does not receive a Surprise Bill Certification Form, the health plan should treat the bill as a surprise bill and must pay the amount that the health plan determines is reasonable for the health care services rendered.
7. Examples of surprise bills include but are not limited to the following:
   • An insured's contract does not require the insured to obtain a referral before getting services and the contract covers out-of-network services.  The insured has blood drawn in a participating physician's office and the specimen is sent to a non-participating laboratory without the insured's explicit written consent acknowledging that the participating physician is referring the insured to a non-participating laboratory and that the referral may result in costs not covered by the health plan.  The bill would be a surprise bill and would be covered as in-network.
   • An insured is admitted to a participating hospital for a scheduled hospital admission. During that hospital stay, consultation services are provided by specialists who do not participate with the insured's health plan and either: (1) a participating provider is unavailable; or (2) a non-participating provider renders services without the insured's knowledge; or (3) or unforeseen services arise at the time services are rendered.
   • An insured is admitted to a participating hospital for a scheduled hospital admission or the insured obtains outpatient services at a participating ambulatory surgical center or participating hospital and the following services are provided by an out-of-network provider: emergency medicine, anesthesia, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalist, or intensivist services.
   • An insured is admitted to a participating hospital for a scheduled hospital admission or is at a participating ambulatory surgical center or a participating hospital for outpatient services and is advised on the day of the services that an out-of-network provider will be providing the services.
   • An insured completes the Surprise Bill Certification Form.  The health plan did not notify the insured in advance of the services in a preauthorization utilization review determination that the services would be out-of-network and the insured did not sign the Standard Written Notice and Consent Form.
8. Examples of bills that are not surprise bills under New York law include, but are not limited to, the following:
   • An insured's contract does not require the insured to obtain a referral before getting services.  A participating physician provides the insured with a list of local laboratories and recommends that the insured make an appointment to have blood work done.
   • An insured's contract does not require the insured to obtain a referral before getting services.  A participating provider who is not a physician (for example, a speech therapist) refers the insured to a non-participating provider (for example, a durable medical equipment provider).
   • An insured requests a referral or authorization to a non-participating provider, the referral or authorization is denied by the health plan, and the insured subsequently obtains the services of the non-participating provider.
   • An insured is admitted to a non-participating hospital for a scheduled admission (meaning not following an emergency room visit).  During that hospital stay, consultation services are provided by specialists who do not participate with the insured's health plan.
   • An insured schedules surgery with an out-of-network surgeon at a participating hospital or ambulatory surgical center.  The out-of-network surgeon discloses to the insured that they do not participate with the insured’s health plan when scheduling the appointment under Public Health Law § 24.  The out-of-network surgeon also provides to the insured the notice and consent outlined in 45 C.F.R. § 149.420, within 72 hours in advance of the health care services, using the Standard Written Notice and Consent Form, containing specified information including a good faith estimate of the cost of the services, that meets language access standards (if the surgeon intends to balance bill the insured).  
   • An insured schedules surgery that requires preauthorization with an OON surgeon at a participating hospital or ambulatory surgical center.  The health plan discloses, in the preauthorization utilization review determination sent to the insured or the insured’s designee and the insured’s provider, that the surgeon is out-of-network and the health plan’s estimated payment amount for the out-of-network service, in compliance with the requirements of Insurance Law § 4903(b)(1) or Public Health Law § 4903(2)(a).  Since the insured had notice of the surgeon’s out-of-network status before the surgery and elected to obtain the services of an OON surgeon, the bill for the surgeon’s services would not be a surprise bill under Financial Services Law § 603(h).
   • An insured has a meaningful opportunity to choose an in-network provider in advance of the services (at least 72 hours in advance of the services) and signed the Standard Written Notice and Consent Form (for other than emergency medicine, anesthesiology, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalist, and intensivist services at an in-network hospital or an in-network ambulatory surgical facility).
9. If a health plan does not believe that a bill meets the definition of a surprise bill, the health plan may deny coverage.  The health plan's initial denial should include instructions on how to initiate an internal appeal pursuant to Insurance Law and Public Health Law § 4904 and an external appeal pursuant to Insurance Law and Public Health Law § 4914.  Any appeal should be treated as a utilization review appeal under Insurance Law and Public Health Law Articles 49.  The insured, the insured’s designee, and with respect to a retrospective denial, the insured’s provider, have the right to file an internal appeal of the denial under Insurance Law § 4904 and Public Health Law § 4904.  The insured, the insured’s designee, and with respect to a concurrent or retrospective final adverse determination, the insured’s provider, must be provided the right to submit an external appeal.

Questions on Surprise Bills

Applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Child Health Plus and Essential Plan).  (Disputes involving Essential Plan 3 and 4 for emergency services provided prior to January 1, 2023 were ineligible for IDR because a fee schedule applied.)  Disputes involving Medicaid managed care coverage for emergency physician and hospital services, including inpatient hospital services following an emergency admission, are ineligible for IDR (a fee schedule applies); however, claims for post-stabilization physician services and inpatient physician services are eligible for IDR. 

1. Insurance Law § 3241(c) requires health plans to hold insureds harmless for charges in excess of the in-network deductible, copayments or coinsurance for OON emergency services in a hospital.  The hold harmless requirements for out-of-network emergency services apply to emergency services rendered by a physician or other provider and hospital charges, including inpatient services following an emergency room visit, in hospitals located both within and outside New York.
2. The IDR process in Financial Services Law Article 6 for emergency services applies to emergency services rendered by a non-participating physician or other provider, including inpatient services following an emergency room visit and hospital charges, in hospitals located in New York.  The IDR process in the federal No Surprises Act would apply to emergency services provided in a hospital outside New York.
3. If a patient is admitted to a hospital following an emergency room visit, inpatient services rendered by a non-participating provider are treated as a dispute for emergency services (and not a surprise bill) for the entire inpatient stay pursuant to Financial Services Law § 605, regardless of when the insured is stabilized and regardless of whether the hospital is in-network or out-of-network.  (See #6 below with respect to Medicaid managed care coverage).  
4. If a patient is admitted to a non-participating hospital following an emergency room visit, inpatient services rendered by a non-participating hospital are treated as a dispute for emergency services (and not a surprise bill) for the entire inpatient stay pursuant to Financial Services Law § 605, regardless of when the insured is stabilized.
5. When a dispute for out-of-network emergency services is submitted to IDR, a health plan must provide reimbursement for the out-of-network service in the amount determined by the IDR entity.
6. A bill for emergency services is exempt from the IDR process when physician fees are subject to schedules or other monetary limitations under any other law, including Workers Compensation, no-fault, managed long term care, Medicare, and Medicaid fee-for-service.
   • Disputes involving Essential Plan 3 and 4 coverage are exempt from IDR for emergency services provided prior to January 1, 2023 because a fee schedule applied. 
   • Disputes relating to Medicaid managed care coverage are exempt from IDR for emergency services; however, claims for physician services after an insured is stabilized and inpatient physician services are eligible for IDR. 
7. If an emergency room physician requests a consultation from a specialist to evaluate a patient in the emergency room of a hospital, and the specialist does not participate with the insured’s health plan, a bill from the specialist would be considered a bill for emergency services and could be subject to the IDR process.

Questions on Emergency Services

Applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Child Health Plus and Essential Plan).  (Disputes involving Essential Plan 3 and 4 for emergency services provided prior to January 1, 2023 were ineligible for IDR because a fee schedule applied.)  Disputes involving Medicaid managed care for emergency physician and hospital services, including inpatient hospital services following an emergency admission, are ineligible for IDR (a fee schedule applies); however, claims for post-stabilization physician services and inpatient physician services are eligible for IDR.

Applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Child Health Plus and Essential Plan).  (Disputes involving Essential Plan 3 and 4 for emergency services provided prior to January 1, 2023 were ineligible for IDR because a fee schedule applied.)  Does not apply to Medicaid managed care for emergency hospital services, including inpatient hospital services following an emergency admission (a fee schedule applies).

Applies to insurers subject to Insurance Law Article 32, corporations subject to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Child Health Plus and Essential Plan). (Disputes involving Essential Plan 3 and 4 for emergency services provided prior to January 1, 2023 were ineligible for IDR because a fee schedule applied.) Does not apply to Medicaid managed care for emergency hospital services, including inpatient hospital services following an emergency admission (a fee schedule applies).

Insurance Law §§ 3217-b(i) and (l), Insurance Law §§ 4325(j) and (m), and Public Health Law § 4406-c(5-c) and (5-e) apply to insurers subject to Insurance Law Article 32, corporations organized under Insurance Law Article 43 (including student health plans established pursuant to Insurance Law § 1124), and HMOs certified pursuant to PHL Article 44 (including Medicaid managed care, Child Health Plus, and Essential Plan) that have contracts with hospitals.  The requirements are not limited to comprehensive health insurance coverage and apply to hospital-only coverage when there are contracts with hospitals.

Financial Services Law Article 6 applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs certified pursuant to PHL Article 44 (including Child Health Plus and Essential Plan).  (Disputes involving Essential Plan 3 and 4 for emergency services provided prior to January 1, 2023 were ineligible for IDR because a fee schedule applied.)  Disputes involving Medicaid managed care for emergency hospital services, including inpatient hospital services following an emergency admission are ineligible for IDR (a fee schedule applies).

The IDR requirements for emergency services and surprise bills do not apply to the following types of coverage:

• Medicare.
• Group Medicare-eligible retiree benefits providing Medicare-supplement-type benefits under a group policy covering only retirees or covering both active employees and retirees.
• Medicare Supplement plans.
• Medicare Advantage plans.
• Managed long-term care plans. 
• Fixed indemnity plans (non-network plans).
• Medicaid fee-for-service. 
• Stand-alone dental or vision plans. 
• Essential Plans 3 and 4 for emergency services provided prior to January 1, 2023.
• Medicaid Managed Care in relation to emergency services provided by a physician (however, claims for post-stabilization physician services and inpatient physician services are eligible for IDR).
• Medicaid Managed Care in relation to emergency hospital services, including inpatient hospital services following an emergency admission.

Applies to insurers licensed to write accident and health insurance pursuant to Insurance Law Article 32, corporations organized pursuant to Insurance Law Article 43, Municipal Cooperative Health Benefit Plans certified pursuant to Insurance Law Article 47, student health plans established or maintained pursuant to Insurance Law § 1124, and HMOs subject to PHL Article 44 (including Medicaid managed care, Child Health Plus, and Essential Plan).

1. The NSA requires that any adverse determination that involves consideration of whether a health plan is complying with surprise billing and cost-sharing protections under the NSA is eligible for external appeal (see 42 U.S.C. § 300gg-19).
2. Insurance Law § 4910(b)(1)(A) and Public Health Law § 4910(2)(a)(i), effective April 1, 2022, provide that the insured has a right to an external appeal for any grounds consistent with 42 U.S.C. § 300gg-19 as determined by the Superintendent of the Department of Financial Services or Commissioner of Health.
3. Adverse Determinations Subject to External Appeal: A health plan’s denial or partial denial of the following items is an adverse determination under the NSA and Financial Services Law Article 6 and is subject to internal appeal and external appeal under Insurance Law and Public Health Articles 49:
   • Whether the services are emergency services;
   • Whether the services are a surprise bill as defined in Financial Services Law § 603(h)(1);
   • Whether the correct cost-sharing was applied to the insured’s bill for emergency services or surprise bill; and
   • Whether a claim for care accurately reflects the treatments received, and the associated NSA protections related to patient cost-sharing and surprise billing.
4. Claim Denials.
   • If a health plan denies a claim because it determines that the claim is not a surprise bill under Financial Services Law § 603(h), it should explain the basis for the denial, including the definition of a surprise bill, and list any information that should be submitted upon appeal.
   • However, if an insured completes the Surprise Bill Certification Form and the health plan did not notify the insured in advance of the services in a preauthorization utilization review determination that the services would be out-of-network, the bill should be considered to be a surprise bill.

1. If a patient has an unscheduled hospital admission (for example, through the emergency department) and is stabilized but requires additional inpatient treatment, a physician that treats the patient during the hospital admission:
   • Would not be required to verbally tell the patient the health plans in which the physician participates because the patient did not schedule an appointment.  See Public Health Law § 24(1).
   • Could satisfy the requirement to provide the patient with written documentation identifying the health plans in which the physician participates by posting the information on his or her website.  In such case, the physician would not be required to provide a written disclosure to the patient in the hospital.  See Public Health Law § 24(1).
   • May not know what health plan his or her patient is covered under, unlike when the patient schedules an appointment with the physician.  In such cases involving hospital services, the physician would not be required to tell the patient that the amount the physician will bill is available on request.  However, if the patient specifically requests this information, the physician would be required to make the disclosure.  See Public Health Law § 24(2).
   • Would not be required to provide the patient with the name, practice name, mailing address and telephone number of any health care provider scheduled to perform anesthesiology, laboratory, pathology, radiology or assistant surgeon services because the services are not being provided in connection with care in the physician's office or coordinated or referred as part of the office visit.  See Public Health Law § 24(3).
   • Would not be subject to the disclosure requirements in § 24(4) of the Public Health Law for services provided during the admission because § 24(4) applies only to a scheduled hospital admission.
2. Public Health Law § 24(3) requires a physician to provide a patient or a prospective patient with the name, practice name, mailing address and telephone number of any health care provider scheduled to perform anesthesiology, laboratory, pathology, radiology or assistant surgeon services in connection with care to be provided in the physician's office for the patient or coordinated or referred by the physician for the patient at the time of referral to or coordination of services with such provider.
   • If the physician coordinates or makes a referral to a specific physician in a practice, the physician should disclose the name of the physician.
   • If the physician only coordinates or makes a referral to the overall practice and it is up to the practice to schedule the physician, the physician need only disclose the name of the practice.
3. Public Health Law § 24(4) requires a physician, for a patient's scheduled hospital admission or scheduled outpatient hospital services, to provide a patient and the hospital with the name, practice name, mailing address and telephone number of any other physician whose services will be arranged by the physician and are scheduled at the time of the pre-admission testing, registration or admission at the time non-emergency services are scheduled.
   • If the physician arranges for a specific physician in a practice, the physician should disclose the name of the physician.
   • If the physician only arranges for the overall practice and it is up to the practice to schedule the physician, the physician need only disclose the name of the practice.
4. Public Health Law § 24(8) requires a physician, a health care professional, a group practice of health care professionals, a diagnostic and treatment center, a health center defined under 42 U.S.C. § 254b, and a hospital to make publicly available, and if applicable post on their public websites, and provide to individuals who are enrollees of health plans a one-page written notice, in clear and understandable language, containing information on the requirements and prohibitions under 42 U.S.C. §§ 300gg-131 and §§ 300gg-132 and Financial Services Law Article 6 relating to prohibitions on balance billing for emergency services and surprise bills, and information on contacting appropriate state and federal agencies if an individual believes a health care provider has violated any requirements described in 42 U.S.C. §§ 300gg-131 and §§ 300gg-132 or Financial Services Law Article 6.