A member has a right to an external appeal of a final adverse determination. New York State's External Appeal Law provides the opportunity for the external review of adverse determinations for members and providers based on lack of medical necessity, experimental/investigational treatment, clinical trial, or in certain instances, out-of-network services. Further, a member, the member's designee and, in conjunction with retrospective adverse determinations, a member's health care provider has the right to request an external appeal.
This law also applies to rare diseases, which are defined as any life-threatening or disabling condition that is or was subject to review by the National Institutes of Health's Rare Disease Council or affects fewer than 200,000 U.S. residents per year, and there is no standard health service or treatment more beneficial than the requested health service or treatment. To qualify as a rare disease, the condition must be certified by an outside physician specialized in an area appropriate to treat the disease in question. The patient should likely benefit from the proposed treatment and the benefits must outweigh the risks.
The provider may only file an external review on their own behalf for concurrent and retrospective adverse determinations.
Right to Request an External Appeal
Members have the right to request an external appeal when:
- The member 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, on the grounds that such health care service is not medically necessary ,and
- EmblemHealth has rendered a final adverse determination with respect to such health care service or both EmblemHealth and the member have jointly agreed to waive any internal appeal.
Filing an External Appeal
An external appeal may also be filed when:
- The member has had coverage of a health care service denied on the basis that such service is experimental or investigational and the denial has been upheld on appeal or both EmblemHealth and the member have jointly agreed to waive any internal appeal, and
- the member's attending physician has certified that the member 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 or rare disease treatment, and
- the member'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 member'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 PHL4900(5)(b)(B) that, based on two documents from the available medical and scientific evidence, is likely to be more beneficial to the member than any covered standard health service or procedure, or in the case of a rare disease, based on the physician's certification required by Section 4900 (7)(g) of the PHL and such other evidence as the member, the designee or the attending doctor may present, that the requested health service or procedure is likely to benefit the member in the treatment of the enrollee's rare disease and that the benefit outweighs the risks of such health service or procedure; or (b) a clinical trial for which the member 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
- the specific health service or procedure recommended by the attending physician would otherwise be covered under the policy except for EmblemHealth’s determination that the health service or procedure is experimental or investigational.
External Appeal for Denial of Out-of-Network Service
- The member has had coverage of the health service, which would otherwise be a covered benefit under the member's benefit plan which is denied on appeal, in whole or in part, on the grounds that such health service is out-of-network and an alternate recommended health service is available in-network, and EmblemHealth has rendered a final adverse determination with respect to an out-of-network denial or both EmblemHealth and the member have jointly agreed to waive any internal appeal; and
- the member's attending doctor, who shall be a licensed, board-certified or board-eligible physician qualified to practice in the specialty area of practice appropriate to treat the member for the health service sought, certifies that the out-of-network health service is materially different from 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.
EmblemHealth has only one level of internal appeal; it does not require the member to exhaust any second level of internal appeal to be eligible for an external appeal.
How to File an External Clinical Appeal
To file an external clinical appeal, the practitioner appealing on his/her own behalf must complete a New York State External Appeal Application with the New York State Department of Financial Services (DFS) within 60 days of the date of the final adverse determination.
The member and member's designee (including the provider in the capacity of the member's designee) may submit the same form within 4 months of the final adverse determination. If the member files on their own behalf, signed applications authorizing the release of medical records must also be sent to DFS along with the application. (Note: Application fees are waived for Medicaid members.)
An external appeal must be submitted within the applicable time frame upon receipt of the final adverse determination of the first level appeal, regardless of whether or not a second level appeal is requested. If a member chooses to request a second level internal appeal, the time may expire for the member to request an external appeal.
DFS screens applications and assigns eligible appeals to state-certified external appeals agents. DFS then notifies both the filer and EmblemHealth whether the request is eligible for appeal, provides explanation thereof, and sends a copy of the signed release form.
EmblemHealth provides medical and treatment records and an itemization of the clinical standards used to determine medical necessity within 3 business days of receiving the agent's information and completed release forms. For an expedited appeal, this information is provided within 24 hours of receipt.
For urgent medical circumstances, an expedited review may be requested which renders a decision within 3 days. For standard cases, a determination is made within 30 days from receipt of the member's request, in accordance with the commissioner's instructions. The external appeal agent shall have the opportunity to request additional information from the member, practitioner, and EmblemHealth within the 30-day period, in which case the agent shall have up to 5 additional business days to make a determination.
The decision of the external appeal agent is final and binding on both the member and EmblemHealth.
For questions or help with an application, contact DFS at 800-400-8882 or email externalappealquestions@dfs.ny.gov.
Note: Practitioners appealing concurrent review determinations cannot pursue reimbursement from members other than copayments from a member for services deemed not medically necessary by the external appeal agent.
