(a) No entity shall be qualified for certification as an external appeal agent if it owns or controls, is owned or controlled by, or exercises common control with any of the following:

1. (1) any national, State or local illness, health benefit or public advocacy group;
2. (2) any national, State or local society or association of hospitals, physicians, or other providers of health care services; or
3. (3) any national, State or local association of health care plans.

(b) An applicant for certification as an external appeal agent shall submit a sworn statement setting forth that none of the control affiliations proscribed in subdivision (a) of this section apply to the applicant, and that the applicant, its medical director and each of its owners, officers, directors and management employees, either:

1. (1) has no material familial, financial or professional affiliation, as those terms are defined in section 410.2(e)-(g) of this Part, with any person or entity listed in subparagraphs (2)(i)-(v) of this subdivision; or

2. (2) provides a list of those material familial, financial and professional affiliations, each of which may, upon certification, result in a prohibited conflict of interest in connection with an external appeal because of such affiliation with:

   1. (i) any health care plan;
   2. (ii) any owner, officer, director, or management employee of any health care plan;
   3. (iii) any health care provider, physician's medical group, independent practice association, or provider of pharmaceutical products or services or durable medical equipment;
   4. (iv) any facility at which a health service would be provided; or
   5. (v) any developer or manufacturer of a health service.

(c) Following certification:

1. (1) if an external appeal agent acquires ownership or control of, or becomes owned or controlled by, or acquires and begins to exercise common control with any entity described in paragraphs (a)(1)-(3) of this section, the external appeal agent shall notify the Departments of Financial Services and Health in writing within five business days of such acquisition or exercise of control. Such notice shall be sufficient basis for the revocation of certification without a hearing; and
2. (2) the sworn statement required by subdivision (b) of this section shall be amended and resubmitted to the Departments of Financial Services and Health within five business days of the addition or deletion of any material affiliation as described in subparagraphs (b)(2)(i)-(v) of this section.

(d) The applicant shall submit a detailed written description of its policies, processes and procedures for ensuring, in accordance with the criteria set forth in subdivisions (b) and (c) and paragraphs (e)(2)-(4) of this section and section 410.5(h)(2) of this Part, that appeals will be conducted by impartial clinical peer reviewers, for the reporting and review of clinical peer reviewer conflicts of interest and for assigning or reassigning an appeal where a conflict or potential conflict is identified and further, that the applicant, its medical director and each of its owners, officers, directors, management employees and clinical peer reviewers have no material familial, financial or professional affiliation with the insured whose health care service is the subject of an appeal assigned to it subsequent to certification as an external appeal agent or with the insured's designee.

1. (1) if the superintendent determines in the course of assigning an external appeal that a conflict is unavoidable because all external appeal agents certified pursuant to this Part or their medical director, owners, officers, directors and/or management employees have a disqualifying material affiliation with one or more of the persons or entities listed in subparagraphs (b)(2)(i)-(v) of this section in relation to the appeal to be assigned, the superintendent shall make a random assignment of the appeal in accordance with section 410.8 of this Part, provided, however, that the certified external appeal agent assigned shall, within two business days of the assignment or for an expedited appeal, within 24 hours of the assignment, certify to the superintendent by sworn statement that the clinical peer reviewer(s) who will review the external appeal have been assigned in accordance with paragraph (2) of this subdivision and subdivision (f) of this section. When an appeal must be assigned pursuant to this paragraph, the superintendent shall notify the insured that all certified agents have a proscribed material affiliation(s), of the need to randomly assign the appeal to one of the external appeal agents certified by the State in order that a determination of the appeal be obtained and of the nature of the affiliation(s) involving the certified external appeal agent assigned to the appeal, and shall inform the insured that, in no event shall the agent's clinical peer reviewer(s) who reviews the appeal have any affiliation proscribed by this section;
2. (2) an agent assigned pursuant to this Part shall not assign an appeal to a clinical peer reviewer(s) which has a material affiliation with any of those persons listed in subparagraphs (b)(2)(i)-(v) of this section or to a clinical peer reviewer(s) which has a material familial, financial or professional affiliation with the insured whose health care service is the subject of the appeal, or with the insured's designee;
3. (3) where a clinical peer reviewer has a material affiliation with a health maintenance organization or line of business thereof, such affiliation alone shall not constitute a disqualifying conflict with respect to an appeal involving an affiliated health maintenance organization or line of business with respect to which the clinical peer reviewer has no material affiliation; and
4. (4) where a clinical peer reviewer has a material affiliation with a hospital or other licensed provider which is an affiliate of a larger hospital or other provider system or network, such affiliation alone shall not constitute a disqualifying conflict with respect to an appeal involving another hospital or other provider affiliated with such hospital or provider system with respect to which the clinical peer reviewer has no material affiliation.

(e) Unavoidable conflicts; minimization.

Notwithstanding any other provision of law and in accordance with section 4913(b) of the Insurance Law and section 4913.2 of the Public Health Law:

(h) Notwithstanding any other provision of this Part, a certified external appeal agent may assign an appeal to a clinical peer reviewer with unique expertise and experience with respect to a health care service which is relevant to an appeal for reasons which may include, but shall not necessarily be limited to:

1. (1) the development or participation in the development of a service, procedure or related equipment; and/or
2. (2) prior training and participation in the diagnosis or treatment of a condition rarely encountered or rarely encountered in the geographic area in which the insured resides, provided, however, that such clinical peer reviewer did not participate in the internal utilization review decision or the final adverse determination which is the basis for the external appeal.