Consumer Rights: An External Appeal

New York State law allows consumers to file an external appeal when a health care plan denies some types of health services.

The external appeal will be conducted by health care professionals who have no connection to your plan, your health care provider or the health care facility involved in your care. The external appeal agent’s decision will be binding.

Consumers will be able to request an external appeal if:

Your plan denies any part of a benefit because the plan says it is not medically necessary; or

Your plan denies a benefit because the plan says it is experimental; or

Your plan denies a benefit because it is a clinical trial.

Providers will be able to request this external appeal when the plan denies payment for a service already provided (retrospective review) because the plan says it was not medically necessary.

To be able to use the external appeal process:

You or your provider (where this applies) must have gone through the internal appeals procedure and received a denial, called a final adverse determination, or;

You and the plan have agreed to waive the internal appeals procedure.

You must request an external appeal from the State Insurance Department in writing:

Within 45 days of the date of the final adverse determination you receive, or when you and your plan agree to waive the internal appeal process.

When your plan sends you a final adverse determination, the plan will send you information from the State that describes the external appeal process, including the forms you and your provider must send to the Insurance Dept. to request an external appeal and the fee, if any, you must
pay to start this process. You must pay the fee and send in the forms within 45 days of receiving your plan’s final adverse determination.

If you do not receive the information or forms or you have questions about the external appeal process, including whether you are eligible, call the Insurance Dept. at 800-400-8882.

Within 45 days of receiving the final adverse determination from your plan, you or your provider can submit any information to document your case. If the information you or your provider submits is substantially different from the information the plan had when it made its decision,
the plan has 3 days to reconsider its decision.

There are 2 kinds of appeals, expedited and standard.

How long will a standard appeal take?

Within 30 days the independent reviewer will make a decision. You and your plan will be notified within 2 business days of the decision being made.

Five additional days, if the reviewer needs additional information.

In some cases the appeal can be expedited:

The review will be completed in 3 days if your doctor states that a delay would pose an imminent or serious threat to your health. Every reasonable effort will be made to notify you and your plan of the decision immediately by telephone or fax. This will be followed immediately by a written notice.

What criteria will the external reviewer use in making the decision about medical necessity?

The law says that the decision will be based on whether the plan acted reasonably, with sound medical judgment and in your best interest. Reviewers will take the following into consideration when making their decisions:

The plan’s clinical standards;

Information provided concerning your health condition;

Your attending doctor’s recommendation;

Generally accepted practice guidelines of government health agencies, national and professional medical societies, boards and associations.

How do I qualify for a external review based on a denial because the plan says the benefit is experimental or investigational?

An external appeal may be filed when any treatment or medical service is denied because the plan says it is“experimental or investigational.” This includes participating in a clinical trial and access to an “off label drug,” a medication that has been approved by the FDA for one
condition, but not for the condition for which you are filing the appeal. To qualify your doctor must certify that:

You have a life-threatening or disabling condition or disease. (A disabling disease or condition means, in this case, that your illness must match the definition of“disabled person” in the social service law; generally, a condition which prevents you from working) AND,

Standard medical services have been ineffective or would be medically inappropriate OR,
n There isn’t a more beneficial treatment covered by your plan OR,

There is a clinical trial available to you.

Your doctor must also recommend this treatment or clinical trial and give his or her reasons including 2 documents from available medical and scientific evidence or that the proposed benefit is a clinical trial.

The external reviewers will approve experimental or investigational treatments based on:

The scientific and medical evidence that the treatment proposed is likely to be more beneficial than any standard treatment OR,

The reviewer confirms that the proposed treatment is a clinical trial that is likely to benefit you.

Notice of the decision will include the reason for the decision and, where the plan’s final adverse determination is upheld, the clinical rationale. The decision will:

Be binding on both you and your plan (unless you or the plan decide to go to court),

Not expand your covered benefits or change your plan’s rules (e.g. prior-authorization, reimbursement rates) as described in your contract, and

Be admissible in court.

Will the External Appeal cost me anything?

You may be asked by your plan to pay $50 to file an external appeal. You must send a check, made out to your health plan, to the State Insurance Department within 45 days of receiving the final adverse determination. This check will be returned to you if the external appeal is in your favor. You will not be charged the $50 if you are on Medicaid, Child Health Plus or cannot afford to pay.

If You are on Medicaid

Medicaid recipients may use this external appeal process, but the decisions of Medicaid Fair Hearings (click here for more information) will override the decisions of this State external appeal.

How do I Apply for an External Appeal?

The external appeals must be in writing according to procedures developed by New York State on a form approved by New York State. To find out how to file an external appeal, consumers should call the State Insurance Department (800-400-8882) or visit their website at

If you have a question about whether you can file an external appeal, contact the State Insurance Department. The Insurance Dept. will randomly assign your case to an external review agent. The agent will have a phone line available 24 hours a day to handle questions about your
external appeals.