§ 4910. Right to external appeal established. 1. There is hereby
established an enrollee's right to an external appeal of a final adverse
determination by a health care plan.

2. An enrollee, the enrollee's designee and, in connection with
concurrent and retrospective adverse determinations, an enrollee's
health care provider, shall have the right to request an external appeal
when:

(a) (i) the enrollee has had coverage of a 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 commissioner in
consultation with the superintendent of financial services, and

(ii) the health care plan has rendered a final adverse determination
with respect to such health care service or both the plan and the
enrollee have jointly agreed to waive any internal appeal, or the
enrollee 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

(b) (i) the enrollee 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 enrollee have jointly agreed to waive any
internal appeal, or the enrollee is deemed to have exhausted or is not
required to complete any internal appeal pursuant to section 2719 of the
federal Public Health Service Act, 42 U.S.C. § 300gg-19, and

(ii) the enrollee's attending physician has certified that the
enrollee 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

(iii) the enrollee'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 enrollee'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 (b) of subdivision five of section forty-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 enrollee
than any covered standard health service or procedure or, in the case of
a rare disease, based on the physician's certification required by
subdivision seven-g of section forty-nine hundred of this article and
such other evidence as the enrollee, the enrollee's designee or the
enrollee's attending physician may present, that the requested health
service or procedure is likely to benefit the enrollee in the treatment
of the enrollee's rare disease and that such benefit to the enrollee
outweighs the risks of such health service or procedure; or (b) a
clinical trial for which the enrollee 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

(iv) 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

(c)(i) the enrollee has had coverage of the health service (other than
a clinical trial to which paragraph (b) of this subdivision 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
health service 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 enrollee have jointly agreed to waive
any internal appeal; and

(ii) the enrollee'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 enrollee for the
health service sought, certifies that the out-of-network health service
is materially different than the alternate recommended in-network
service, and recommends a health care 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.

(d)(i) The enrollee 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 enrollee, and
who is able to provide the requested health service.

(ii) The enrollee'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 enrollee 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 enrollee, and recommends an out-of-network provider
with the appropriate training and experience to meet the particular
health care needs of an enrollee, and who is able to provide the
requested health service.

3. (a) The health care plan may charge the enrollee a fee of up to
twenty-five dollars per external appeal with an annual limit on filing
fees for an enrollee 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 enrollee. 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 this chapter. Notwithstanding the
foregoing, the health plan shall not require the enrollee to pay any
such fee if such fee shall pose a hardship to the enrollee as determined
by the plan.

(b) The health care plan may charge the enrollee's health care
provider a fee of up to fifty dollars per external appeal, other than
for an external appeal requested pursuant to paragraph (b) or (c) of
subdivision four of section forty-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 enrollee's health care provider.

4. 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 denials shall be binding on the
enrollee and the insurer and shall supersede any determinations rendered
pursuant to this title.