2006 New York Code - Right To External Appeal Established.

 
    §  4910.  Right  to  external  appeal established. (a) There is hereby
  established an insured's right to an external appeal of a final  adverse
  determination by a health plan.
    (b)  An  insured,  the  insured's  designee  and,  in  connection with
  retrospective adverse determinations, an insured's health care provider,
  shall have the right to request an external appeal when:
    (1) (A) the insured has had coverage of the 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 is not medically necessary, and
    (B)  the  health  care plan has rendered a final adverse determination
  with respect to such health care  service  or  both  the  plan  and  the
  insured have jointly agreed to waive any internal appeal; or
    (2)  (A)  the insured 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 section four thousand nine
  hundred four of this article or both  the  plan  and  the  insured  have
  jointly agreed to waive any internal appeal, and
    (B)  the  insured's attending physician has certified that the insured
  has a life-threatening or disabling 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, and
    (C)  the  insured'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 insured's life-threatening  or
  disabling  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 two of subsection (e) of
  section four thousand 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 insured than any  covered  standard  health
  service  or  procedure; or (b) a clinical trial for which the insured 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
    (D) 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.
    (c)  The  health care plan may charge the insured a fee of up to fifty
  dollars per external appeal; provided that, in the  event  the  external
  appeal agent overturns the final adverse determination of the plan, such
  fee shall be refunded to the insured. 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 the public health law.
  Notwithstanding  the  foregoing,  the  health plan shall not require the
  insured to pay any such fee if such fee shall pose  a  hardship  to  the
  enrollee as determined by the plan.
    (d)  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  denial shall be binding on the
  enrollee and the insurer and shall supersede any determinations rendered
  pursuant to this title.