§ 4910. Right to external appeal established.
(a)There is hereby\nestablished an insured's right to an external appeal of a final adverse\ndetermination by a health plan.\n (b) An insured, the insured's designee and, in connection with\nconcurrent and retrospective adverse determinations, an insured's health\ncare provider, shall have the right to request an external appeal when:\n (1) (A) the insured has had coverage of the health care service, which\nwould otherwise be a covered benefit under a subscriber contract or\ngovernmental health benefit program, denied on appeal, in whole or in\npart, pursuant to title one of this article on the grounds that such\nhealth care service does not meet the health care plan's requirements\nfor medical necessity, appropriateness, health care setti
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§ 4910. Right to external appeal established. (a) There is hereby\nestablished an insured's right to an external appeal of a final adverse\ndetermination by a health plan.\n (b) An insured, the insured's designee and, in connection with\nconcurrent and retrospective adverse determinations, an insured's health\ncare provider, shall have the right to request an external appeal when:\n (1) (A) the insured has had coverage of the health care service, which\nwould otherwise be a covered benefit under a subscriber contract or\ngovernmental health benefit program, denied on appeal, in whole or in\npart, pursuant to title one of this article on the grounds that such\nhealth care service does not meet the health care plan's requirements\nfor medical necessity, appropriateness, health care setting, level of\ncare, effectiveness of a covered benefit, or other ground consistent\nwith 42 U.S.C. § 300gg-19 as determined by the superintendent, and\n (B) the health care plan has rendered a final adverse determination\nwith respect to such health care service or both the plan and the\ninsured have jointly agreed to waive any internal appeal, or the insured\nis deemed to have exhausted or is not required to complete any internal\nappeal pursuant to section 2719 of the Public Health Service Act, 42\nU.S.C. § 300gg-19; or\n (2) (A) the insured has had coverage of a health care service denied\non the basis that such service is experimental or investigational, and\nsuch denial has been upheld on appeal under title one of this article,\nor both the plan and the insured have jointly agreed to waive any\ninternal appeal, or the insured is deemed to have exhausted or is not\nrequired to complete any internal appeal pursuant to section 2719 of the\nPublic Health Service Act, 42 U.S.C. § 300gg-19, and\n (B) the insured's attending physician has certified that the insured\nhas a condition or disease (a) for which standard health services or\nprocedures have been ineffective or would be medically inappropriate, or\n(b) for which there does not exist a more beneficial standard health\nservice or procedure covered by the health care plan, or (c) for which\nthere exists a clinical trial or rare disease treatment, and\n (C) the insured's attending physician, who must be a licensed,\nboard-certified or board-eligible physician qualified to practice in the\narea of practice appropriate to treat the insured's condition or\ndisease, must have recommended either (a) a health service or procedure\n(including a pharmaceutical product within the meaning of subparagraph\n(B) of paragraph two of subsection (e) of section four thousand nine\nhundred of this article) that, based on two documents from the available\nmedical and scientific evidence, is likely to be more beneficial to the\ninsured than any covered standard health service or procedure or, in the\ncase of a rare disease, based on the physician's certification required\nby subsection (g-7) of section four thousand nine hundred of this\narticle and such other evidence as the insured, the insured's designee\nor the insured's attending physician may present, that the requested\nhealth service or procedure is likely to benefit the insured in the\ntreatment of the insured's rare disease and that such benefit to the\ninsured outweighs the risks of such health service or procedure; or (b)\na clinical trial for which the insured is eligible. Any physician\ncertification provided under this section shall include a statement of\nthe evidence relied upon by the physician in certifying his or her\nrecommendation, and\n (D) the specific health service or procedure recommended by the\nattending physician would otherwise be covered under the policy except\nfor the health care plan's determination that the health service or\nprocedure is experimental or investigational; or\n (3)(A) the insured has had coverage of the health service (other than\na clinical trial to which paragraph two of this subsection shall apply),\nwhich would otherwise be a covered benefit under a subscriber contract\nor governmental health benefit program, denied on appeal, in whole or in\npart, pursuant to title one of this article on the grounds that such\nhealth service is out-of-network and an alternate recommended treatment\nis available in-network, and the health plan has rendered a final\nadverse determination with respect to an out-of-network denial or both\nthe health plan and the insured have jointly agreed to waive any\ninternal appeal; and\n (B) the insured's attending physician, who shall be a licensed, board\ncertified or board eligible physician qualified to practice in the\nspecialty area of practice appropriate to treat the insured for the\nhealth service sought, certifies that the out-of-network health service\nis materially different than the alternate recommended in-network health\nservice, and recommends a health service that, based on two documents\nfrom the available medical and scientific evidence, is likely to be more\nclinically beneficial than the alternate recommended in-network\ntreatment and the adverse risk of the requested health service would\nlikely not be substantially increased over the alternate recommended\nin-network health service.\n (4)(A) The insured has had an out-of-network referral denied on the\ngrounds that the health care plan has a health care provider in the\nin-network benefits portion of its network with appropriate training and\nexperience to meet the particular health care needs of an insured, and\nwho is able to provide the requested health service.\n (B) The insured's attending physician, who shall be a licensed, board\ncertified or board eligible physician qualified to practice in the\nspecialty area of practice appropriate to treat the insured for the\nhealth service sought, certifies that the in-network health care\nprovider or providers recommended by the health care plan do not have\nthe appropriate training and experience to meet the particular health\ncare needs of an insured, and recommends an out-of-network provider with\nthe appropriate training and experience to meet the particular health\ncare needs of an insured, and who is able to provide the requested\nhealth service.\n (c) (1) The health care plan may charge the insured a fee of up to\ntwenty-five dollars per external appeal with an annual limit on filing\nfees for an insured not to exceed seventy-five dollars within a single\nplan year; provided that, in the event the external appeal agent\noverturns the final adverse determination of the plan, such fee shall be\nrefunded to the insured. Notwithstanding the foregoing, the health plan\nshall not require the enrollee to pay any such fee if the enrollee is a\nrecipient of medical assistance or is covered by a policy pursuant to\ntitle one-A of article twenty-five of the public health law.\nNotwithstanding the foregoing, the health plan shall not require the\ninsured to pay any such fee if such fee shall pose a hardship to the\ninsured as determined by the plan.\n (2) The health care plan may charge the insured's health care provider\na fee of up to fifty dollars per external appeal, other than for an\nexternal appeal requested pursuant to paragraph two or three of\nsubsection (d) of section four thousand nine hundred fourteen of this\narticle; provided that, in the event the external appeal agent overturns\nthe final adverse determination of the plan, such fee shall be refunded\nto the insured's health care provider.\n (d) An enrollee covered under the Medicare or Medicaid program may\nappeal the denial of a health care service pursuant to the provisions of\nthis title, provided, however, that any determination rendered\nconcerning such denial pursuant to existing federal and state law\nrelating to the Medicare or Medicaid program or pursuant to federal law\nenacted subsequent to the effective date of this title and providing for\nan external appeal process for such denial shall be binding on the\nenrollee and the insurer and shall supersede any determinations rendered\npursuant to this title.\n