N.Y. Insurance Law § 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.