The office of General Counsel issued the following opinion on September 12, 2005 representing the position of the New York State Insurance Department.

Re: Health Insurance External Appeals, Time Limitations on Appeals

Question Presented:

May the time limit on requesting external appeals be waived for cause?


Since the time limit is statutory, it may not be waived by the Insurance Department.


After an insured received an adverse determination from his health care insurer, he filed an internal appeal. Subsequently, he wrote to the Insurance Department and requested an external appeal. His request for an external appeal was rejected by the Insurance Department as premature, since his insurer had not yet responded to his internal appeal.

When his insurer acted upon his internal appeal and indicated that there was no clinical evidence to support the test requested, it informed the insured of his external appeal rights, including the 45 day time limit. The insured indicated that because he had some difficulty in researching the medical issue, since he is "an attorney and not a physician", the 45 days "slipped by" him. When, after his review, he filed a request for an external review, he was informed that he had missed the statutory deadline.

The insured believes that equity compels acceptance of his appeal, since he had made it earlier,


New York Insurance Law § 4910(b) (McKinney 2000), regulating entities licensed under the New York Insurance Law (McKinney 2000 and 2005 Supplement), provides:

An insured, the insured's designee and, in connection with retrospective adverse determinations, an insured's health care provider, shall have the right to request an external appeal when:

1) (A) the insured has had coverage of the 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, pursuant to title one of this article on the grounds that such health care service is not medically necessary, and (B) the health care plan has rendered a final adverse determination with respect to such health care service or both the plan and the insured have jointly agreed to waive any internal appeal;

New York Public Health Law § 4910(2) (McKinney 2002), regulating HMOs, has an identical requirement.

New York Insurance Law § 4914(b)(1) (McKinney 2000) provides:

The insured shall have forty-five days to initiate an external appeal after the insured receives notice from the health care plan, or such plan's utilization review agent if applicable, of a final adverse determination or denial or after both the plan and the enrollee have jointly agreed to waive any internal appeal. Such request shall be in writing in accordance with the instructions and in such form prescribed by subsection (e) of this section. The insured, and the insured's health care provider where applicable, shall have the opportunity to submit additional documentation with respect to such appeal to the external appeal agent within such forty-five-day period; provided however that when such documentation represents a material change from the documentation upon which the utilization review agent based its adverse determination or upon which the health plan based its denial, the health plan shall have three business days to consider such documentation and amend or confirm such adverse determination.


New York Public Health Law § 4914(2) (McKinney 2002) has an identical requirement.

In effectuating the mandate of New York Insurance Law § 4914(b)(1), the Insurance Department requires, N.Y. Comp. Codes R. & Regs. tit. 11, § 410.7(a)(6) (2001):

The external appeal request was submitted, in the form and manner prescribed by the superintendent and commissioner, to the superintendent within 45 days from the date the insured . . . received notice that the health care plan made a final adverse determination or within 45 days from when the insured received 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. Unless otherwise demonstrated, it shall be presumed that the insured . . . received the notice of final adverse determination or letter agreeing to waive the internal appeal process within eight days of the date on the notice of final adverse determination or the date on the letter agreeing to waive the internal appeal process.

A Regulation of the Department of Health, N.Y. Comp. Codes . & Regs. tit. 10, § 98-2.7(a)(6) (2001) has an identical requirement.

The statutes, which contemplate swift resolution of these issues, do not provide either the Superintendent of Insurance or the Commissioner of Health with the discretion to extend or waive the applicable time limit.

For further information you may contact Principal Attorney Alan Rachlin at the New York City office.