NY Pub Health L § 4910 (2021)
2021 New York Laws PBH - Public Health Article 49 - Utilization Review and External Appeal Title 2 - Right to External Appeal 4910 - Right to External Appeal Established.

§  4910.  Right  to  external  appeal  established. 1. There is hereby established an enrollee's right to an external appeal of a final adverse determination by a health care plan.   2. An enrollee,  the  enrollee's  designee  and,  in  connection  with concurrent  and  retrospective  adverse  determinations,  an  enrollee's health care provider, shall have the right to request an external appeal when:  (a) (i) the enrollee has had coverage of a health care service,  which would  otherwise  be  a  covered  benefit under a subscriber contract or governmental health benefit program, denied on appeal, in  whole  or  in part,  pursuant  to  title  one of this article on the grounds that such health care service does not meet the health  care  plan's  requirements for  medical  necessity,  appropriateness, health care setting, level of care, or effectiveness of a covered benefit, and  (ii) the health care plan has rendered a final  adverse  determination with  respect  to  such  health  care  service  or both the plan and the enrollee have jointly agreed  to  waive  any  internal  appeal,  or  the enrollee  is deemed to have exhausted or is not required to complete any internal appeal pursuant to section 2719 of the  Public  Health  Service Act, 42 U.S.C. § 300gg-19; or  (b)  (i) the enrollee has had coverage of a health care service denied on the basis that such service is experimental or  investigational,  and such  denial  has been upheld on appeal under title one of this article, or both the plan and the enrollee  have  jointly  agreed  to  waive  any internal  appeal,  or the enrollee is deemed to have exhausted or is not required to complete any internal appeal pursuant to section 2719 of the federal Public Health Service Act, 42 U.S.C. § 300gg-19, and  (ii)  the  enrollee's  attending  physician  has  certified  that  the enrollee  has  a  condition  or  disease  (a)  for which standard health services or procedures have  been  ineffective  or  would  be  medically inappropriate,  or  (b) for which there does not exist a more beneficial standard health service or procedure covered by the health care plan, or (c) for which there exists a clinical trial or rare  disease  treatment, and  (iii)  the  enrollee's  attending  physician,  who must be a licensed, board-certified or board-eligible physician qualified to practice in the area of practice  appropriate  to  treat  the  enrollee's  condition  or disease,  must have recommended either (a) a health service or procedure (including a pharmaceutical product within the meaning  of  subparagraph (B)  of  paragraph (b) of subdivision five of section forty-nine hundred of this article) that, based on two documents from the available medical and scientific evidence, is likely to be more beneficial to the enrollee than any covered standard health service or procedure or, in the case of a rare disease, based  on  the  physician's  certification  required  by subdivision  seven-g  of  section forty-nine hundred of this article and such other evidence as the enrollee,  the  enrollee's  designee  or  the enrollee's  attending  physician  may present, that the requested health service or procedure is likely to benefit the enrollee in the  treatment of  the  enrollee's  rare  disease and that such benefit to the enrollee outweighs the risks of such  health  service  or  procedure;  or  (b)  a clinical  trial  for  which  the  enrollee  is  eligible.  Any physician certification provided under this section shall include a  statement  of the  evidence  relied  upon  by  the  physician in certifying his or her recommendation, and  (iv) the specific health  service  or  procedure  recommended  by  the attending  physician  would otherwise be covered under the policy except for the health care plan's determination  that  the  health  service  or procedure is experimental or investigational; or  (c)(i) the enrollee has had coverage of the health service (other than a  clinical  trial  to  which  paragraph  (b)  of this subdivision shall apply), which would otherwise be a covered benefit  under  a  subscriber contract  or  governmental  health benefit program, denied on appeal, in whole  or  in part, pursuant to title one of this article on the grounds that such health service is out-of-network and an alternate  recommended health service is available in-network, and the health plan has rendered a  final  adverse determination with respect to an out-of-network denial or both the health plan and the enrollee have jointly  agreed  to  waive any internal appeal; and  (ii)  the  enrollee's  attending  physician,  who shall be a licensed, board certified or board eligible physician qualified to practice in the specialty area of practice appropriate to treat  the  enrollee  for  the health  service sought, certifies that the out-of-network health service is  materially  different  than  the  alternate  recommended  in-network service,  and  recommends  a  health  care  service  that,  based on two documents from the available medical and scientific evidence, is  likely to   be  more  clinically  beneficial  than  the  alternate  recommended in-network treatment and  the  adverse  risk  of  the  requested  health service  would  likely not be substantially increased over the alternate recommended in-network health service.  (d)(i) The enrollee has had an out-of-network referral denied  on  the grounds  that  the  health  care  plan has a health care provider in the in-network benefits portion of its network with appropriate training and experience to meet the particular health care needs of an enrollee,  and who is able to provide the requested health service.  (ii)  The  enrollee's  attending  physician,  who shall be a licensed, board certified or board eligible physician qualified to practice in the specialty area of practice appropriate to treat  the  enrollee  for  the health  service  sought,  certifies  that  the  in-network  health  care provider or providers recommended by the health care plan  do  not  have the  appropriate  training  and experience to meet the particular health care needs of an enrollee, and  recommends  an  out-of-network  provider with  the  appropriate  training  and  experience to meet the particular health care needs of an  enrollee,  and  who  is  able  to  provide  the requested health service.   3.  (a)  The  health  care plan may charge the enrollee a fee of up to twenty-five dollars per external appeal with an annual limit  on  filing fees  for an enrollee not to exceed seventy-five dollars within a single plan year; provided  that,  in  the  event  the  external  appeal  agent overturns the final adverse determination of the plan, such fee shall be refunded to the enrollee. Notwithstanding the foregoing, the health plan shall  not require the enrollee to pay any such fee if the enrollee is a recipient of medical assistance or is covered by a  policy  pursuant  to title  one-A of article twenty-five of this chapter. Notwithstanding the foregoing, the health plan shall not require the  enrollee  to  pay  any such fee if such fee shall pose a hardship to the enrollee as determined by the plan.  (b)  The  health  care  plan  may  charge  the  enrollee's health care provider a fee of up to fifty dollars per external  appeal,  other  than for  an  external  appeal  requested pursuant to paragraph (b) or (c) of subdivision four of section forty-nine hundred fourteen of this article; provided that, in the event the  external  appeal  agent  overturns  the final  adverse  determination of the plan, such fee shall be refunded to the enrollee's health care provider.   4. An enrollee covered under the  Medicare  or  Medicaid  program  may appeal the denial of a health care service pursuant to the provisions of this   title,   provided,   however,  that  any  determination  rendered  concerning such denial  pursuant  to  existing  federal  and  state  law relating  to the Medicare or Medicaid program or pursuant to federal law enacted subsequent to the effective date of this title and providing for an  external  appeal  process  for  such denials shall be binding on the enrollee and the insurer and shall supersede any determinations rendered pursuant to this title.