§ 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
concurrent and 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 does not meet the health care plan's requirements
for medical necessity, appropriateness, health care setting, level of
care, effectiveness of a covered benefit, or other ground consistent
with 42 U.S.C. § 300gg-19 as determined by the superintendent, 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 the insured
is deemed to have exhausted or is not required to complete any internal
appeal pursuant to section 2719 of the Public Health Service Act, 42
U.S.C. § 300gg-19; 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 title one of this article,
or both the plan and the insured have jointly agreed to waive any
internal appeal, or the insured is deemed to have exhausted or is not
required to complete any internal appeal pursuant to section 2719 of the
Public Health Service Act, 42 U.S.C. § 300gg-19, and

(B) the insured's attending physician has certified that the insured
has a 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 or rare disease treatment, 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 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, in the
case of a rare disease, based on the physician's certification required
by subsection (g-7) of section four thousand nine hundred of this
article and such other evidence as the insured, the insured's designee
or the insured's attending physician may present, that the requested
health service or procedure is likely to benefit the insured in the
treatment of the insured's rare disease and that such benefit to the
insured outweighs the risks of such 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; or

(3)(A) the insured has had coverage of the health service (other than
a clinical trial to which paragraph two of this subsection shall apply),
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 service is out-of-network and an alternate recommended treatment
is available in-network, and the health plan has rendered a final
adverse determination with respect to an out-of-network denial or both
the health plan and the insured have jointly agreed to waive any
internal appeal; and

(B) the insured's attending physician, who shall be a licensed, board
certified or board eligible physician qualified to practice in the
specialty area of practice appropriate to treat the insured for the
health service sought, certifies that the out-of-network health service
is materially different than the alternate recommended in-network health
service, and recommends a health service that, based on two documents
from the available medical and scientific evidence, is likely to be more
clinically beneficial than the alternate recommended in-network
treatment and the adverse risk of the requested health service would
likely not be substantially increased over the alternate recommended
in-network health service.

(4)(A) The insured has had an out-of-network referral denied on the
grounds that the health care plan has a health care provider in the
in-network benefits portion of its network with appropriate training and
experience to meet the particular health care needs of an insured, and
who is able to provide the requested health service.

(B) The insured's attending physician, who shall be a licensed, board
certified or board eligible physician qualified to practice in the
specialty area of practice appropriate to treat the insured for the
health service sought, certifies that the in-network health care
provider or providers recommended by the health care plan do not have
the appropriate training and experience to meet the particular health
care needs of an insured, and recommends an out-of-network provider with
the appropriate training and experience to meet the particular health
care needs of an insured, and who is able to provide the requested
health service.

(c) (1) The health care plan may charge the insured a fee of up to
twenty-five dollars per external appeal with an annual limit on filing
fees for an insured not to exceed seventy-five dollars within a single
plan year; 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
insured as determined by the plan.

(2) The health care plan may charge the insured's health care provider
a fee of up to fifty dollars per external appeal, other than for an
external appeal requested pursuant to paragraph two or three of
subsection (d) of section four thousand nine hundred fourteen of this
article; 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's health care provider.

(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.