§ 4910. Right to external appeal established.
1.There is hereby\nestablished an enrollee's right to an external appeal of a final adverse\ndetermination by a health care plan.\n 2. An enrollee, the enrollee's designee and, in connection with\nconcurrent and retrospective adverse determinations, an enrollee's\nhealth care provider, shall have the right to request an external appeal\nwhen:\n (a) (i) the enrollee has had coverage of a 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 car
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§ 4910. Right to external appeal established. 1. There is hereby\nestablished an enrollee's right to an external appeal of a final adverse\ndetermination by a health care plan.\n 2. An enrollee, the enrollee's designee and, in connection with\nconcurrent and retrospective adverse determinations, an enrollee's\nhealth care provider, shall have the right to request an external appeal\nwhen:\n (a) (i) the enrollee has had coverage of a 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 commissioner in\nconsultation with the superintendent of financial services, and\n (ii) the health care plan has rendered a final adverse determination\nwith respect to such health care service or both the plan and the\nenrollee have jointly agreed to waive any internal appeal, or the\nenrollee is deemed to have exhausted or is not required to complete any\ninternal appeal pursuant to section 2719 of the Public Health Service\nAct, 42 U.S.C. § 300gg-19; or\n (b) (i) the enrollee 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 enrollee have jointly agreed to waive any\ninternal appeal, or the enrollee is deemed to have exhausted or is not\nrequired to complete any internal appeal pursuant to section 2719 of the\nfederal Public Health Service Act, 42 U.S.C. § 300gg-19, and\n (ii) the enrollee's attending physician has certified that the\nenrollee has a condition or disease (a) for which standard health\nservices or procedures have been ineffective or would be medically\ninappropriate, or (b) for which there does not exist a more beneficial\nstandard health service or procedure covered by the health care plan, or\n(c) for which there exists a clinical trial or rare disease treatment,\nand\n (iii) the enrollee'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 enrollee'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 (b) of subdivision five of section forty-nine hundred\nof this article) that, based on two documents from the available medical\nand scientific evidence, is likely to be more beneficial to the enrollee\nthan any covered standard health service or procedure or, in the case of\na rare disease, based on the physician's certification required by\nsubdivision seven-g of section forty-nine hundred of this article and\nsuch other evidence as the enrollee, the enrollee's designee or the\nenrollee's attending physician may present, that the requested health\nservice or procedure is likely to benefit the enrollee in the treatment\nof the enrollee's rare disease and that such benefit to the enrollee\noutweighs the risks of such health service or procedure; or (b) a\nclinical trial for which the enrollee 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 (iv) 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 (c)(i) the enrollee has had coverage of the health service (other than\na clinical trial to which paragraph (b) of this subdivision shall\napply), which would otherwise be a covered benefit under a subscriber\ncontract or governmental health benefit program, denied on appeal, in\nwhole or in part, pursuant to title one of this article on the grounds\nthat such health service is out-of-network and an alternate recommended\nhealth service is available in-network, and the health plan has rendered\na final adverse determination with respect to an out-of-network denial\nor both the health plan and the enrollee have jointly agreed to waive\nany internal appeal; and\n (ii) the enrollee's attending physician, who shall be a licensed,\nboard certified or board eligible physician qualified to practice in the\nspecialty area of practice appropriate to treat the enrollee for the\nhealth service sought, certifies that the out-of-network health service\nis materially different than the alternate recommended in-network\nservice, and recommends a health care service that, based on two\ndocuments from the available medical and scientific evidence, is likely\nto be more clinically beneficial than the alternate recommended\nin-network treatment and the adverse risk of the requested health\nservice would likely not be substantially increased over the alternate\nrecommended in-network health service.\n (d)(i) The enrollee 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 enrollee, and\nwho is able to provide the requested health service.\n (ii) The enrollee's attending physician, who shall be a licensed,\nboard certified or board eligible physician qualified to practice in the\nspecialty area of practice appropriate to treat the enrollee 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 enrollee, and recommends an out-of-network provider\nwith the appropriate training and experience to meet the particular\nhealth care needs of an enrollee, and who is able to provide the\nrequested health service.\n 3. (a) The health care plan may charge the enrollee a fee of up to\ntwenty-five dollars per external appeal with an annual limit on filing\nfees for an enrollee 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 enrollee. 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 this chapter. Notwithstanding the\nforegoing, the health plan shall not require the enrollee to pay any\nsuch fee if such fee shall pose a hardship to the enrollee as determined\nby the plan.\n (b) The health care plan may charge the enrollee's health care\nprovider a fee of up to fifty dollars per external appeal, other than\nfor an external appeal requested pursuant to paragraph (b) or (c) of\nsubdivision four of section forty-nine hundred fourteen of this article;\nprovided that, in the event the external appeal agent overturns the\nfinal adverse determination of the plan, such fee shall be refunded to\nthe enrollee's health care provider.\n 4. 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 denials shall be binding on the\nenrollee and the insurer and shall supersede any determinations rendered\npursuant to this title.\n