§ 268-E — Appeals and appeal hearings; judicial review

§ 268-e. Appeals and appeal hearings; judicial review. 1. Any\napplicant or enrollee, or any individual authorized to act on behalf of\nany such applicant or enrollee, may appeal to the department from\ndeterminations of department officials or failures to make\ndeterminations upon grounds specified in subdivision four of this\nsection. The department must review the appeal de novo and give such\nperson an opportunity for an appeal hearing. The department may also, on\nits own motion, review any decision made or any case in which a decision\nhas not been made by the Marketplace or a social services official\nwithin the time specified by law or regulations of the department. The\ndepartment may make such additional investigation as it may deem\nnecessary, and the commissioner must make such determination as is\njustified and in accordance with applicable law.\n 2. Regarding any appeal pursuant to this section, with or without an\nappeal hearing, the commissioner may designate and authorize one or more\nappropriate members of his staff to consider and decide such appeals.\nAny staff member so designated and authorized will have authority to\ndecide such appeals on behalf of the commissioner with the same force\nand effect as if the commissioner had made the decisions. Appeal\nhearings must be held on behalf of the commissioner by members of his\nstaff who are employed for such purposes or who have been designated and\nauthorized by the commissioner.\n 3. Persons entitled to appeal to the department pursuant to this\nsection must include:\n (a) applicants for or enrollees in insurance affordability programs\nand qualified health plans; and\n (b) other persons entitled to an opportunity for an appeal hearing as\ndirected by the commissioner.\n 4. An applicant or enrollee has the right to appeal at least the\nfollowing issues:\n (a) An eligibility determination made in accordance with this article\nand applicable law, including:\n (i) An initial determination of eligibility, including:\n (A) eligibility to enroll in a qualified health plan;\n (B) eligibility for Medicaid;\n (C) eligibility for Child Health Plus;\n (D) eligibility for the Basic Health Program;\n (E) eligibility for the 1332 state innovation program;\n (F) the amount of advance payments of the premium tax credit and level\nof cost-sharing reductions;\n (G) the amount of any other subsidy that may be available under law;\nand\n (H) eligibility for such other health insurance programs as determined\nby the commissioner; and\n (ii) a re-determination of eligibility of the programs under this\nsubdivision.\n (b) An eligibility determination for an exemption for any mandate to\npurchase health insurance.\n (c) A failure by NY State of Health to provide timely written notice\nof an eligibility determination made in accordance with applicable law.\n 5. The department may, subject to the discretion of the commissioner,\npromulgate such regulations, consistent with federal or state law, as\nmay be necessary to implement the provisions of this section.\n 6. Regarding every decision of an appeal pursuant to this section, the\ndepartment must inform every party, and his or her representative, if\nany, of the availability of judicial review and the time limitation to\npursue future review.\n 7. Applicants and enrollees of qualified health plans, with or without\nadvance payments of the premium tax credit and cost-sharing reductions,\nalso have the right to appeal to the United States Department of Health\nand Human Services appeal entity:\n (a) appeals decisions issued by NY State of Health upon the exhaustion\nof the NY State of Health appeals process; and\n (b) a denial of a request to vacate a dismissal made by the NY State\nof Health appeals entity.\n 8. The department must include notice of the right to appeal as\nprovided by subdivision four of this section and instructions regarding\nhow to file an appeal in any eligibility determination issued to the\napplicant or enrollee in accordance with applicable law. Such notice\nshall include:\n (a) an explanation of the applicant or enrollee's appeal rights;\n (b) a description of the procedures by which the applicant or enrollee\nmay request an appeal;\n (c) information on the applicant or enrollee's right to represent\nhimself or herself, or to be represented by legal counsel or another\nrepresentative;\n (d) an explanation of the circumstances under which the appellant's\neligibility may be maintained or reinstated pending an appeal decision;\nand\n (e) an explanation that an appeal decision for one household member\nmay result in a change in eligibility for other household members and\nthat such a change will be handled as a redetermination of eligibility\nfor all household members in accordance with the standards specified in\napplicable law.\n