§ 4910. Right to external appeal established. 1. There is hereby\nestablished an enrollee's right to an external appeal of a final adverse\ndetermination by a health care plan.\n 2. An enrollee, the enrollee's designee and, in connection with\nconcurrent and retrospective adverse determinations, an enrollee's\nhealth care provider, shall have the right to request an external appeal\nwhen:\n (a) (i) the enrollee has had coverage of a health care service, which\nwould otherwise be a covered benefit under a subscriber contract or\ngovernmental health benefit program, denied on appeal, in whole or in\npart, pursuant to title one of this article on the grounds that such\nhealth care service does not meet the health care plan's requirements\nfor medical necessity, appropriateness, health care setting, level of\ncare, effectiveness of a covered benefit, or other ground consistent\nwith 42 U.S.C. § 300gg-19 as determined by the commissioner in\nconsultation with the superintendent of financial services, and\n (ii) the health care plan has rendered a final adverse determination\nwith respect to such health care service or both the plan and the\nenrollee have jointly agreed to waive any internal appeal, or the\nenrollee is deemed to have exhausted or is not required to complete any\ninternal appeal pursuant to section 2719 of the Public Health Service\nAct, 42 U.S.C. § 300gg-19; or\n (b) (i) the enrollee has had coverage of a health care service denied\non the basis that such service is experimental or investigational, and\nsuch denial has been upheld on appeal under title one of this article,\nor both the plan and the enrollee have jointly agreed to waive any\ninternal appeal, or the enrollee is deemed to have exhausted or is not\nrequired to complete any internal appeal pursuant to section 2719 of the\nfederal Public Health Service Act, 42 U.S.C. § 300gg-19, and\n (ii) the enrollee's attending physician has certified that the\nenrollee has a condition or disease (a) for which standard health\nservices or procedures have been ineffective or would be medically\ninappropriate, or (b) for which there does not exist a more beneficial\nstandard health service or procedure covered by the health care plan, or\n(c) for which there exists a clinical trial or rare disease treatment,\nand\n (iii) the enrollee's attending physician, who must be a licensed,\nboard-certified or board-eligible physician qualified to practice in the\narea of practice appropriate to treat the enrollee's condition or\ndisease, must have recommended either (a) a health service or procedure\n(including a pharmaceutical product within the meaning of subparagraph\n(B) of paragraph (b) of subdivision five of section forty-nine hundred\nof this article) that, based on two documents from the available medical\nand scientific evidence, is likely to be more beneficial to the enrollee\nthan any covered standard health service or procedure or, in the case of\na rare disease, based on the physician's certification required by\nsubdivision seven-g of section forty-nine hundred of this article and\nsuch other evidence as the enrollee, the enrollee's designee or the\nenrollee's attending physician may present, that the requested health\nservice or procedure is likely to benefit the enrollee in the treatment\nof the enrollee's rare disease and that such benefit to the enrollee\noutweighs the risks of such health service or procedure; or (b) a\nclinical trial for which the enrollee is eligible. Any physician\ncertification provided under this section shall include a statement of\nthe evidence relied upon by the physician in certifying his or her\nrecommendation, and\n (iv) the specific health service or procedure recommended by the\nattending physician would otherwise be covered under the policy except\nfor the health care plan's determination that the health service or\nprocedure is experimental or investigational; or\n (c)(i) the enrollee has had coverage of the health service
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