N.Y. Public Health Law § 268-e: Appeals and appeal hearings; judicial review

§ 268-e. Appeals and appeal hearings; judicial review. 1. Any

applicant or enrollee, or any individual authorized to act on behalf of

any such applicant or enrollee, may appeal to the department from

determinations of department officials or failures to make

determinations upon grounds specified in subdivision four of this

section. The department must review the appeal de novo and give such

person an opportunity for an appeal hearing. The department may also, on

its own motion, review any decision made or any case in which a decision

has not been made by the Marketplace or a social services official

within the time specified by law or regulations of the department. The

department may make such additional investigation as it may deem

necessary, and the commissioner must make such determination as is

justified and in accordance with applicable law.

2. Regarding any appeal pursuant to this section, with or without an

appeal hearing, the commissioner may designate and authorize one or more

appropriate members of his staff to consider and decide such appeals.

Any staff member so designated and authorized will have authority to

decide such appeals on behalf of the commissioner with the same force

and effect as if the commissioner had made the decisions. Appeal

hearings must be held on behalf of the commissioner by members of his

staff who are employed for such purposes or who have been designated and

authorized by the commissioner.

3. Persons entitled to appeal to the department pursuant to this

section must include:

(a) applicants for or enrollees in insurance affordability programs

and qualified health plans; and

(b) other persons entitled to an opportunity for an appeal hearing as

directed by the commissioner.

4. An applicant or enrollee has the right to appeal at least the

following issues:

(a) An eligibility determination made in accordance with this article

and applicable law, including:

(i) An initial determination of eligibility, including:

(A) eligibility to enroll in a qualified health plan;

(B) eligibility for Medicaid;

(C) eligibility for Child Health Plus;

(D) eligibility for the Basic Health Program;

(E) eligibility for the 1332 state innovation program;

(F) the amount of advance payments of the premium tax credit and level

of cost-sharing reductions;

(G) the amount of any other subsidy that may be available under law;

and

(H) eligibility for such other health insurance programs as determined

by the commissioner; and

(ii) a re-determination of eligibility of the programs under this

subdivision.

(b) An eligibility determination for an exemption for any mandate to

purchase health insurance.

(c) A failure by NY State of Health to provide timely written notice

of an eligibility determination made in accordance with applicable law.

5. The department may, subject to the discretion of the commissioner,

promulgate such regulations, consistent with federal or state law, as

may be necessary to implement the provisions of this section.

6. Regarding every decision of an appeal pursuant to this section, the

department must inform every party, and his or her representative, if

any, of the availability of judicial review and the time limitation to

pursue future review.

7. Applicants and enrollees of qualified health plans, with or without

advance payments of the premium tax credit and cost-sharing reductions,

also have the right to appeal to the United States Department of Health

and Human Services appeal entity:

(a) appeals decisions issued by NY State of Health upon the exhaustion

of the NY State of Health appeals process; and

(b) a denial of a request to vacate a dismissal made by the NY State

of Health appeals entity.

8. The department must include notice of the right to appeal as

provided by subdivision four of this section and instructions regarding

how to file an appeal in any eligibility determination issued to the

applicant or enrollee in accordance with applicable law. Such notice

shall include:

(a) an explanation of the applicant or enrollee's appeal rights;

(b) a description of the procedures by which the applicant or enrollee

may request an appeal;

(c) information on the applicant or enrollee's right to represent

himself or herself, or to be represented by legal counsel or another

representative;

(d) an explanation of the circumstances under which the appellant's

eligibility may be maintained or reinstated pending an appeal decision;

and

(e) an explanation that an appeal decision for one household member

may result in a change in eligibility for other household members and

that such a change will be handled as a redetermination of eligibility

for all household members in accordance with the standards specified in

applicable law.