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