NY Ins L § 4910 (2021)
2021 New York Laws ISC - Insurance 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. (a) There is hereby established an insured's right to an external appeal of a final  adverse determination by a health plan.  (b)  An  insured,  the  insured's  designee  and,  in  connection with concurrent and retrospective adverse determinations, an insured's health care provider, shall have the right to request an external appeal when:  (1) (A) the insured has had coverage of the 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  (B)  the  health  care plan has rendered a final adverse determination with respect to such health care  service  or  both  the  plan  and  the insured have jointly agreed to waive any internal appeal, or the insured 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  (2)  (A)  the insured 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  insured  have  jointly  agreed  to  waive  any internal  appeal,  or  the insured 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, and  (B) the insured's attending physician has certified that  the  insured 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  (C) the  insured'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  insured'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 two of subsection (e) of  section  four  thousand  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 insured than any covered standard health service or procedure or, in the case of a rare disease, based on the physician's certification  required by  subsection  (g-7)  of  section  four  thousand  nine hundred of this article and such other evidence as the insured, the  insured's  designee or  the  insured's  attending  physician may present, that the requested health service or procedure is likely to  benefit  the  insured  in  the treatment  of  the  insured's  rare disease and that such benefit to the insured outweighs the risks of such health service or procedure; or  (b) a  clinical  trial  for  which  the  insured  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  (D) 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  (3)(A)  the insured has had coverage of the health service (other than a clinical trial to which paragraph two of this subsection 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 treatment 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  insured  have  jointly  agreed  to  waive  any internal appeal; and  (B)  the insured'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 insured for the health service sought, certifies that the out-of-network health  service is materially different than the alternate recommended in-network health service,  and  recommends  a health 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.  (4)(A)  The  insured  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 insured, and who is able to provide the requested health service.  (B) The insured'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  insured  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 insured, and recommends an out-of-network provider with the appropriate training and experience to meet  the  particular  health care  needs  of  an  insured,  and  who is able to provide the requested health service.  (c) (1) The health care plan may charge the insured a  fee  of  up  to twenty-five  dollars  per external appeal with an annual limit on filing fees for an insured 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 insured. 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  the  public  health  law. Notwithstanding the foregoing, the health plan  shall  not  require  the insured  to  pay  any  such fee if such fee shall pose a hardship to the insured as determined by the plan.  (2) The health care plan may charge the insured's health care provider a fee of up to fifty dollars per external  appeal,  other  than  for  an external  appeal  requested  pursuant  to  paragraph  two  or  three  of subsection (d) of section four thousand 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 insured's health care provider.  (d) 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  denial  shall  be  binding  on  the enrollee and the insurer and shall supersede any determinations rendered pursuant to this title.