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This entry was published on 2019-04-19
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Appeals and appeal hearings; judicial review
Public Health (PBH) CHAPTER 45, ARTICLE 2, TITLE 7
§ 268-e. Appeals and appeal hearings; judicial review. 1. Any
applicant or enrollee, or any individual authorized to act on behalf of
any such applicant or enrollee, may appeal to the department from
determinations of department officials or failures to make
determinations upon grounds specified in subdivision four of this
section. The department must review the appeal de novo and give such
person an opportunity for an appeal hearing. The department may also, on
its own motion, review any decision made or any case in which a decision
has not been made by the Marketplace or a social services official
within the time specified by law or regulations of the department. The
department may make such additional investigation as it may deem
necessary, and the commissioner must make such determination as is
justified and in accordance with applicable law.

2. Regarding any appeal pursuant to this section, with or without an
appeal hearing, the commissioner may designate and authorize one or more
appropriate members of his staff to consider and decide such appeals.
Any staff member so designated and authorized will have authority to
decide such appeals on behalf of the commissioner with the same force
and effect as if the commissioner had made the decisions. Appeal
hearings must be held on behalf of the commissioner by members of his
staff who are employed for such purposes or who have been designated and
authorized by the commissioner.

3. Persons entitled to appeal to the department pursuant to this
section must include:

(a) applicants for or enrollees in insurance affordability programs
and qualified health plans; and

(b) other persons entitled to an opportunity for an appeal hearing as
directed by the commissioner.

4. An applicant or enrollee has the right to appeal at least the
following issues:

(a) An eligibility determination made in accordance with this article
and applicable law, including:

(i) An initial determination of eligibility, including:

(A) eligibility to enroll in a qualified health plan;

(B) eligibility for Medicaid;

(C) eligibility for Child Health Plus;

(D) eligibility for the Basic Health Program;

(E) the amount of advance payments of the premium tax credit and level
of cost-sharing reductions;

(F) the amount of any other subsidy that may be available under law;

(G) eligibility for such other health insurance programs as determined
by the commissioner; and

(ii) a re-determination of eligibility of the programs under this

(b) An eligibility determination for an exemption for any mandate to
purchase health insurance.

(c) A failure by NY State of Health to provide timely written notice
of an eligibility determination made in accordance with applicable law.

5. The department may, subject to the discretion of the commissioner,
promulgate such regulations, consistent with federal or state law, as
may be necessary to implement the provisions of this section.

6. Regarding every decision of an appeal pursuant to this section, the
department must inform every party, and his or her representative, if
any, of the availability of judicial review and the time limitation to
pursue future review.

7. Applicants and enrollees of qualified health plans, with or without
advance payments of the premium tax credit and cost-sharing reductions,
also have the right to appeal to the United States Department of Health
and Human Services appeal entity:

(a) appeals decisions issued by NY State of Health upon the exhaustion
of the NY State of Health appeals process; and

(b) a denial of a request to vacate a dismissal made by the NY State
of Health appeals entity.

8. The department must include notice of the right to appeal as
provided by subdivision four of this section and instructions regarding
how to file an appeal in any eligibility determination issued to the
applicant or enrollee in accordance with applicable law. Such notice
shall include:

(a) an explanation of the applicant or enrollee's appeal rights;

(b) a description of the procedures by which the applicant or enrollee
may request an appeal;

(c) information on the applicant or enrollee's right to represent
himself or herself, or to be represented by legal counsel or another

(d) an explanation of the circumstances under which the appellant's
eligibility may be maintained or reinstated pending an appeal decision;

(e) an explanation that an appeal decision for one household member
may result in a change in eligibility for other household members and
that such a change will be handled as a redetermination of eligibility
for all household members in accordance with the standards specified in
applicable law.