2021 New York Laws
PBH - Public Health
Article 2 - The Department of Health
Title 7 - Ny State of Health
268-E - Appeals and Appeal Hearings; Judicial Review.

§  268-e.  Appeals  and  appeal  hearings;  judicial  review.  1.  Any
applicant or enrollee, or any individual authorized to act on behalf  of
any  such  applicant  or  enrollee,  may  appeal  to the department from
determinations   of   department   officials   or   failures   to   make
determinations  upon  grounds  specified  in  subdivision  four  of this
section. The department must review the appeal de  novo  and  give  such
person an opportunity for an appeal hearing. The department may also, on
its own motion, review any decision made or any case in which a decision
has  not  been  made  by  the  Marketplace or a social services official
within the time specified by law or regulations of the  department.  The
department  may  make  such  additional  investigation  as  it  may deem
necessary, and the commissioner  must  make  such  determination  as  is
justified and in accordance with applicable law.
  2.  Regarding  any appeal pursuant to this section, with or without an
appeal hearing, the commissioner may designate and authorize one or more
appropriate members of his staff to consider and  decide  such  appeals.
Any  staff  member  so  designated and authorized will have authority to
decide such appeals on behalf of the commissioner with  the  same  force
and  effect  as  if  the  commissioner  had  made  the decisions. Appeal
hearings must be held on behalf of the commissioner by  members  of  his
staff who are employed for such purposes or who have been designated and
authorized by the commissioner.
  3.  Persons  entitled  to  appeal  to  the department pursuant to this
section must include:
  (a) applicants for or enrollees in  insurance  affordability  programs
and qualified health plans; and
  (b)  other persons entitled to an opportunity for an appeal hearing as
directed by the commissioner.
  4. An applicant or enrollee has the  right  to  appeal  at  least  the
following issues:
  (a)  An eligibility determination made in accordance with this article
and applicable law, including:
  (i) An initial determination of eligibility, including:
  (A) eligibility to enroll in a qualified health plan;
  (B) eligibility for Medicaid;
  (C) eligibility for Child Health Plus;
  (D) eligibility for the Basic Health Program;
  (E) the amount of advance payments of the premium tax credit and level
of cost-sharing reductions;
  (F) the amount of any other subsidy that may be available  under  law;
and
  (G) eligibility for such other health insurance programs as determined
by the commissioner; and
  (ii)  a  re-determination  of  eligibility  of the programs under this
subdivision.
  (b) An eligibility determination for an exemption for any  mandate  to
purchase health insurance.
  (c)  A  failure by NY State of Health to provide timely written notice
of an eligibility determination made in accordance with applicable law.
  5. The department may, subject to the discretion of the  commissioner,
promulgate  such  regulations,  consistent with federal or state law, as
may be necessary to implement the provisions of this section.
  6. Regarding every decision of an appeal pursuant to this section, the
department must inform every party, and his or  her  representative,  if
any,  of  the availability of judicial review and the time limitation to
pursue future review.
  7. Applicants and enrollees of qualified health plans, with or without
advance payments of the premium tax credit and cost-sharing  reductions,

also  have the right to appeal to the United States Department of Health
and Human Services appeal entity:
  (a) appeals decisions issued by NY State of Health upon the exhaustion
of the NY State of Health appeals process; and
  (b)  a  denial of a request to vacate a dismissal made by the NY State
of Health appeals entity.
  8. The department must include  notice  of  the  right  to  appeal  as
provided  by subdivision four of this section and instructions regarding
how to file an appeal in any eligibility  determination  issued  to  the
applicant  or  enrollee  in  accordance with applicable law. Such notice
shall include:
  (a) an explanation of the applicant or enrollee's appeal rights;
  (b) a description of the procedures by which the applicant or enrollee
may request an appeal;
  (c) information on the applicant  or  enrollee's  right  to  represent
himself  or  herself,  or  to be represented by legal counsel or another
representative;
  (d) an explanation of the circumstances under  which  the  appellant's
eligibility  may be maintained or reinstated pending an appeal decision;
and
  (e) an explanation that an appeal decision for  one  household  member
may  result  in  a change in eligibility for other household members and
that such a change will be handled as a redetermination  of  eligibility
for  all household members in accordance with the standards specified in
applicable law.