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.
As of January, 1, 2010, 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 be likely to 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.
Medicaid Members Right to a State Fair Hearing
- 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.
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
- for which standard health services or procedures have been ineffective or would be medically inappropriate or
- for which there does not exist a more beneficial standard health service or procedure covered by the health care plan or
- 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 health service or procedure (including a pharmaceutical product within the meaning of PHL 4900(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
- 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 the health care plan'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 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, accessible at http://www.dfs.ny.gov/insurance/extapp/extappl.pdf and send it to the New York State Department of Financial Services within 60 days (45 days prior to July 1, 2014) of the date of the final adverse determination of the first level appeal.
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 the New York State Department of Financial Services 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.
The New York State Department of Financial Services screens applications and assigns eligible appeals to state-certified external appeals agents. The Department of Financial Services 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 will provide medical and treatment records and an itemization of the clinical standards used to determine medical necessity within three business days of receiving the agent's information and completed release forms. For an expedited appeal, this information will be provided within 24 hours of receipt.
For urgent medical circumstances, an expedited review may be requested which will render a decision within three days.
For standard cases, a determination will be 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 five additional business days to make a determination.
The decision of the external appeal agent is final and binding on both the member and EmblemHealth.
To obtain an application or to inquire about external appeals, please contact the New York State Department of Financial Services at 1-800-400-8882 or e-mail firstname.lastname@example.org.
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.
Glossary terms found on this page:
A determination by EmblemHealth or its agents that an admission, extension of stay or other health care service has been reviewed and, based on the information provided, is not medically necessary.
Oral or written request from a member or their designee for EmblemHealth to review or reconsider a decision made by the plan.
The physician primarily responsible for the care of a patient during hospitalization. The physician is licensed, board-certified or board-eligible and qualified to practice in the area appropriate to treat the member's life-threatening or disabling condition or disease. The attending physician must be a network provider with EmblemHealth or one to which EmblemHealth has referred the member.
A health insurance product offered by a health plan company that is defined by the benefit contract and represents a set of covered services. Also called a health benefit plan.
Any HMO (with or without primary care provider referral requirements), Point of Service, Medicaid, Family Health Plus, Child Health Plus, Medicare Advantage or Medicaid Advantage health plans, ASO or any other line of business offered by the EmblemHealth plans.
Services available to a member as defined in his or her contract. Benefit design includes the types of benefits offered, limits (e.g., number of visits, percentage paid or dollar maximums applied) and subscriber responsibility (cost sharing components).
A process in which an individual, an institution or educational program is evaluated and recognized as meeting certain predetermined standards. Certification usually applies to individuals; accreditation usually applies to institutions.
An itemized statement of health care services and their costs provided by a hospital, physician's office or other health care facility. Claims are submitted to the insurer or managed care plan by either the plan member or the provider for payment of the costs incurred.
A legal agreement between an individual member or an employer group and a health plan that describes the benefits and limitations of the coverage.
The fixed dollar amount members must pay for certain covered services. It is generally paid to a network provider at the time the service is rendered.
The fixed dollar amount members must pay for certain covered services. It is generally paid to a network provider at the time the service is rendered.
A person authorized by the insured to assist in obtaining access to, or payment to, the insured for health care services. If the insured has already received health care services and has no liability for payment of services, a designee will not be authorized for the purpose of requesting an external appeal.
Any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months and renders the member unable to engage in any substantial gainful activities.
An individual who is enrolled and eligible for coverage under a health plan contract. Also called a member.
Oral or written request to review or reconsider an initial adverse determination when waiting for a standard decision could seriously harm the enrollee's life, health or their ability to regain maximum function. For pre-service expedited requests, the practitioner may act on behalf of the member. Also called a fast track appeal.
Written request for an independent entity that has been certified by the State to conduct a review of a denial of coverage, based on lack of medical necessity or that the service requested is experimental and investigational.
Final determination made on a first level utilization review appeal, where an initial adverse determination has been upheld.
A professionally licensed individual, facility or entity giving health-related care to patients. Physicians, hospitals, skilled nursing facilities, pharmacies, chiropractors, nurses, nurse-midwives, physical therapists, speech pathologist and laboratories are providers. All network providers are health care providers, but not all providers are network providers.
The use of providers who participate in the health plan's provider network. Many benefit plans encourage enrollees to use network providers to reduce the enrollee's out-of-pocket expense.
A permit (or equivalent) to practice medicine or a health profession that is: 1) issued by any state or jurisdiction in the United States and 2) required for the performance of job functions.
Acronym for Medicare Advantage. An alternative to the traditional Medicare program in which private plans run by health insurance companies provide health care benefits that eligible beneficiaries would otherwise receive directly from the Medicare program.
A jointly funded federal and state program that provides hospital and medical coverage to the low-income population and certain aged and disabled individuals.
Health care that is rendered by a hospital or a licensed or certified provider and is determined by EmblemHealth to meet all of the criteria listed below:
- It is provided for the diagnosis or direct care or treatment of the condition, illness, disease, injury or ailment.
- It is consistent with the symptoms or proper diagnosis and treatment of the medical condition, disease, injury or ailment.
- It is in accordance with accepted standards of good medical practice in the community.
- It is furnished in a setting commensurate with the member's medical needs and condition.
- It cannot be omitted under the standards referenced above.
- It is not in excess of the care indicated by generally accepted standards of good medical practice in the community.
- It is not furnished primarily for the convenience of the member, the member's family or the provider.
- In the case of a hospitalization, the care cannot be rendered safely or adequately on an outpatient basis or in a less intensive treatment setting and, therefore, requires the member receive acute care as a bed patient.
The fact that a provider has prescribed a service or supplies care does not automatically mean the service or supply will qualify for reimbursement under the EmblemHealth plan. To be eligible for reimbursement by EmblemHealth, all covered services must meet EmblemHealth's medical necessity criteria, described above.
Medically necessary with respect to Medicaid and Family Health Plus members means health care and services that are necessary to prevent, diagnose, manage or treat conditions that cause acute suffering, endanger life, result in illness or infirmity, interfere with a person's capacity for normal activity or threaten some significant handicap.
An individual and each of his or her eligible dependents, including Medicare beneficiaries who are enrolled or participate in a benefit program and who are entitled to receive covered services from the practitioner pursuant to such benefit program and the terms of the practitioner's agreement.
Conditions that affect thinking and the ability to figure things out that affect perception, mood and behavior.
The group of physicians, hospital, and other medical care providers that a specific plan has contracted with to deliver medical services to its members.
The use of health care providers who have not contracted with the health plan to provide services. Depending on the member's contract, out-of-network services may not be covered.
A type of health benefit plan that allows enrollees to go outside the health plan's provider network for care, but requires enrollees to pay higher out-of-pocket fees when they do. Also called Point of Service.
A health plan that offers benefits in-network and out-of-network. In-network services are available to enrollees at lower out-of-pocket cost than the services of non-network providers. In addition, PPO enrollees may self-refer to any network provider at any time. Also called a Preferred Provider Organization.
A medical practitioner or covered facility recognized by EmblemHealth for reimbursement purposes. A provider may be any of the following, subject to the conditions listed in this paragraph:
- Doctor of medicine
- Doctor of osteopathy
- Doctor of podiatric medicine
- Physical therapist
- Nurse midwife
- Certified and registered psychologist
- Certified and qualified social worker
- Nurse anesthetist
- Speech-language pathologist
- Clinical laboratory
- Screening center
- General hospital
- Any other type of practitioner or facility specifically listed in the member's Certificate of Insurance as a practitioner or facility recognized by EmblemHealth for reimbursement purposes
A provider must be licensed or certified to render the covered service. The covered service must be within the scope of the Provider's license or certification.
A determination for which utilization review was initiated after health care services have been provided. Retrospective adverse determination does not mean an initial determination involving continued or extended health care services, or additional services for an insured undergoing a course of continued treatment prescribed by a health care provider.
An active member enrolled under an EmblemHealth group Certificate or an individual enrolled under a direct payment contract. A "retiree" may also be a subscriber under a group Certificate.