(a) Attending physician means, for the purpose of requesting an external appeal of an experimental or investigational treatment or service, a licensed, board-certified or board-eligible physician who is qualified to practice in the area of medicine or in the specialty appropriate to treat an enrollee's life-threatening or disabling condition or disease who has recommended a service or treatment that is the subject of a request for external appeal. For enrollees covered by a health care plan with no out-of-network option, the attending physician must either participate in the enrollee's health care plan or must be a physician to whom the enrollee's health care plan referred the enrollee.

(b) Confidential HIV related information means any information in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV related information, concerning whether an individual has been the subject of an HIV related test, or has HIV infection, HIV related illness or AIDS, or information which identifies or reasonably could identify an individual as having one or more of such conditions, including information pertaining to such individual's contacts.

(c) Final adverse determination means an adverse determination which has been upheld by a utilization review agent with respect to a proposed health care service following a standard appeal, or an expedited appeal where applicable, pursuant to section 4904 of the Public Health Law. If a health care plan offers two levels of internal appeals, a final adverse determination shall mean the adverse determination of the first level appeal.

(d) Material familial affiliation means any relationship as a spouse, child, parent, sibling, spouse's parent, spouse's child, child's parent, child's spouse, or sibling's spouse.

(e) Material financial affiliation means any financial interest of more than five percent of total annual revenue or total annual income of a certified external appeal agent or officer, director, or management employee thereof; or clinical peer reviewer employed or engaged thereby to conduct any external appeal. The term material financial affiliation shall not include revenue received from a health care plan by:

(f) Material professional affiliation means any physician-patient relationship, any partnership or employment relationship, a shareholder or similar ownership interest in a professional corporation, or any independent contractor arrangement that constitutes a material financial affiliation with any expert or any officer or director of the independent organization.

(g) Retrospective adverse determination means a determination for which utilization review was initiated after health care services have been provided. Retrospective adverse determination does not mean an initial determination involving continued or extended health care services or additional services for an enrollee undergoing a course of continued treatment prescribed by a health care provider pursuant to section 4903(3) of the Public Health Law.

(h) Utilization review means the review to determine whether health care services that have been provided, are being provided or are proposed to be provided to a patient, whether undertaken prior to, concurrent with or subsequent to the delivery of such services, are medically necessary. A health care plan's denial of coverage of a health care service as defined in section 4900(5)(b) of the Public Health Law, whether made initially or on appeal under title I of article 49 of the Public Health Law, on the basis that the health care service is experimental or investigational, is a determination that the health care service is not medically necessary, provided however, that such health care service would otherwise be a covered benefit.