2023 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,  effectiveness  of  a  covered benefit, or other ground consistent
with 42 U.S.C. § 300gg-19 as determined by the superintendent, 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.