Sec. 410.11. Insured rights and responsibilities

(a) Insureds shall be responsible for:

(1) exhausting the health care plan's internal appeal process under section 4904 of the Insurance Law, provided however, that if a health care plan has two levels of internal appeals, the insured must only exhaust the first level of appeal. In the alternative, the insured and the insured's health care plan may jointly agree to waive the internal appeal process;

(2) ensuring that requests for external appeals are filed and completed within the time frames provided for in paragraph (4) of this subdivision, except in the case of transmittal of medical and treatment records, which shall be the responsibility of the insured's health care plan;

(3) as applicable, providing the attending physician with the documents necessary to complete the physician attestation component of the external appeal request, and, as necessary, providing evidence to the superintendent that such has occurred; and

(4) ensuring that, to the extent possible, all supporting documentation, including but not limited to diagnostic test results and medical literature, is submitted to the assigned certified external appeal agent within the earlier of:

(i) 45 days from the date of the insured's receipt of a final adverse determination notice or within 45 days of receiving a letter from the health care plan affirming that both the insured and the insured's health care plan jointly agreed to waive the internal appeal process; or

(ii) prior to the date the external appeal determination is finalized by the certified external appeal agent; and

(5) responding to the superintendent's request for information concerning an incomplete external appeal request in a timely manner.

(b) Insureds whose health benefits are provided through both titles XVIII and XIX of the Federal Social Security Act are eligible to request an external appeal only for those health care services covered through title XIX.

(c) Insureds whose health benefits are provided through title XIX of the Federal Social Security Act and who request an external appeal pursuant to title II of article 49 of the Insurance Law or Public Health Law may additionally apply to the Department of Health for a fair hearing pursuant to the terms and within the time frames prescribed by sections 22 and 364-j of the Social Services Law and applicable regulations. Pursuant to section 4910(d) of the Insurance Law and section 4910.4 of the Public Health Law, a fair hearing determination prevails over an external appeal determination; therefore, any appeal for which a determination has been made pursuant to the fair hearing process shall not be considered for external appeal.

(d) Insureds, except for those whose health benefits are provided through title XIX of the Federal Social Security Act and title 1-A of article 25 of the Public Health Law, are responsible for enclosing a fee with the request for an external appeal to the superintendent in accordance with the fee prescribed by the insured's health care plan. The insured is responsible for requesting a waiver of the fee requirement from the health care plan if such fee will pose a financial hardship for the insured. Insureds shall not be responsible for paying a fee for any external appeal requested by a health care provider relative to a retrospective adverse determination.

(e)

(1) Upon requesting an external appeal, the insured, the insured's designee or the insured's health care provider shall acknowledge that the determination of the external appeal is binding on the plan and the insured, and shall agree not to commence any legal proceeding against an external appeal agent or clinical peer reviewer to review a determination made by such external appeal agent or clinical peer reviewer pursuant to article 49 of the Insurance Law or article 49 of the Public Health Law; provided, however, that the foregoing shall not limit any rights the insured, the insured's designee or the insured's health care provider may have with respect to bringing an action for damages for bad faith or gross negligence or with respect to bringing an action against the insured's health care plan.

(2) As specified in Insurance Law, section 4914(c) and Public Health Law, section 4914(3), no external appeal agent or clinical peer reviewer conducting an external appeal shall be liable in damages to any person for any opinions rendered by such external appeal agent or clinical peer reviewer upon completion of an external appeal conducted pursuant to article 49 of the Insurance Law or article 49 of the Public Health Law, unless such opinion was rendered in bad faith or involved gross negligence.