N.Y. Public Health Law § 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.