2018 -- H 8045

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LC003345

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

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A N   A C T

RELATING TO INSURANCE -- BENEFIT DETERMINATION AND UTILIZATION

REVIEW ACT

     

     Introduced By: Representatives Ajello, Jacquard, Shekarchi, Kazarian, and Vella-
Wilkinson

     Date Introduced: April 04, 2018

     Referred To: House Health, Education & Welfare

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 27-18.9-7 and 27-18.9-8 of the General Laws in Chapter 27-18.9

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entitled "Benefit Determination and Utilization Review Act [Effective January 1, 2018.]" are

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hereby amended to read as follows:

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     27-18.9-7. Internal appeal procedural requirements. [Effective January 1, 2018.].

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     (a) Administrative and non-administrative appeals. The review agent shall conform to the

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following for the internal appeal of administrative or non-administrative, adverse benefit

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determinations:

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     (1) The review agent shall maintain and make available a written description of its appeal

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procedures by which either the beneficiary or the provider of record may seek review of

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determinations not to authorize health care services.

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     (2) The process established by each review agent may include a reasonable period within

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which an appeal must be filed to be considered and that period shall not be less than one hundred

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eighty (180) calendar days after receipt of the adverse benefit determination notice.

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     (3) During the appeal, a review agent may utilize a reconsideration process in assessing

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an adverse benefit determination. If utilized, the review agent shall develop a reasonable

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reconsideration and appeal process, in accordance with this section. For non-administrative,

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adverse benefit determinations, the period for the reconsideration may not exceed fifteen (15)

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days from the date the request for reconsideration or appeal is received. The review agent shall

 

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notify the beneficiary and/or provider of the reconsideration determination with the form and

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content described in § 27-18.9-6(b), as appropriate. Following the decision on reconsideration,

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the beneficiary and/or provider shall have a period of forty-five (45) calendar days during which

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the beneficiary and/or provider may request an appeal of the reconsideration decision and/or

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submit additional information.

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     (4) Prior to a final internal appeal decision, the review agent must allow the claimant to

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review the entire adverse determination and appeal file and allow the claimant to present evidence

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and/or additional testimony as part of the internal appeal process.

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     (5) A review agent is only entitled to request and review information or data relevant to

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the benefit determination and utilization review processes.

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     (6) The review agent shall maintain records of written adverse benefit determinations,

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reconsiderations, appeals and their resolution, and shall provide reports as requested by the office.

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     (7) (i) The review agent shall notify, in writing, the beneficiary and/or provider of record

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of its decision on the administrative appeal in no case later than thirty (30) calendar days after

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receipt of the request for the review of an adverse benefit determination for pre-service claims,

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and sixty (60) days for post-service claims, commensurate with 29 C.F.R. § 2560.503-1(i)(2)(ii)

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and (iii).

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     (ii) The review agent shall notify, in writing, the beneficiary and provider of record of its

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decision on the non-administrative appeal as soon as practical considering medical circumstances,

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but in no case later than thirty (30) calendar days after receipt of the request for the review of an

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adverse benefit determination, inclusive of the period to conduct the reconsideration, if any. The

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timeline for decision on appeal is paused from the date on which the determination on

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reconsideration is sent to the beneficiary and/or provider and restarted when the beneficiary

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and/or provider submits additional information and/or a request for appeal of the reconsideration

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decision.

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     (8) The review agent shall also provide for an expedited appeal process for urgent and

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emergent situations taking into consideration medical exigencies. Notwithstanding any other

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provision of this chapter, each review agent shall complete the adjudication of expedited appeals,

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including notification of the beneficiary and provider of record of its decision on the appeal, not

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later than seventy-two (72) hours after receipt of the claimant's request for the appeal of an

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adverse benefit determination.

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     (9) Benefits for an ongoing course of treatment cannot be reduced or terminated without

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providing advance notice and an opportunity for advance review. The review agent or health care

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entity is required to continue coverage pending the outcome of an appeal.

 

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     (10) A review agent may not disclose or publish individual medical records or any

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confidential information obtained in the performance of benefit determination or utilization

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review activities. A review agent shall be considered a third-party health insurer for the purposes

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of § 5-37.3-6(b)(6) and shall be required to maintain the security procedures mandated in § 5-

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37.3-4(c).

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     (b) Non-administrative appeals. In addition to subsection (a) of this section the utilization

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review agent shall conform to the following for its internal appeals adverse benefit

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determinations:

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     (1) A claimant is deemed to have exhausted the internal claims appeal process when the

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utilization review agent or health care entity fails to strictly adhere to all benefit determination

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and appeal processes with respect to a claim. In this case the claimant may initiate an external

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appeal or remedies under section 502(a) of the Employee Retirement Income Security Act of

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1974, 29 U.S.C. § 1001 et seq., or other state and federal law, as applicable.

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     (2) No reviewer under this section, who has been involved in prior reviews or in the

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adverse benefit determination under appeal or who has participated in the direct care of the

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beneficiary, may participate in reviewing the case under appeal.

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     (3) All internal-level appeals of utilization review determinations not to authorize a health

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care service that had been ordered by a physician, dentist, or other provider shall be made

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according to the following:

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     (i) The reconsideration decision of a non-administrative, adverse benefit determination

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shall not be made until the utilization review agent's professional provider with the same

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licensure status as typically manages the condition, procedure, treatment, or requested service

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under discussion, and which professional is a physician or dentist who is licensed, certified, or

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otherwise formally recognized as a specialist in the field of health care services or problem being

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reviewed, has spoken to, or otherwise provided for, an equivalent two-way, direct communication

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with the beneficiary's attending physician, dentist, other professional provider, or other qualified

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professional provider responsible for treatment of the beneficiary concerning the services under

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review.

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     (ii) A review agent who does not utilize a reconsideration process must comply with the

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peer-review obligation described in subsection (b)(3)(i) of this section as part of the appeal

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process.

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     (iii) When the appeal of any adverse benefit determination, including an appeal of a

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reconsideration decision, is based in whole or in part on medical judgment, including

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determinations with regard to whether a particular service, treatment, drug, or other item is

 

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experimental, investigational or not medically necessary or appropriate, the reviewer making the

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appeal decision must be appropriately trained having the same licensure status as the ordering

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provider or be a physician or dentist and be in the same or similar specialty as typically manages

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the condition, and be licensed, certified, or otherwise formally recognized as a specialist in the

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field of health care services or problem being reviewed. These qualifications must be provided to

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the claimant upon request.

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     (iv) The utilization review agency reviewer must document and sign their decisions.

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     (4) The review agent must ensure that an appropriately licensed practitioner or licensed

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physician is reasonably available to review the case as required under this subsection (b) and shall

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conform to the following:

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     (i) Each agency peer reviewer shall have access to and review all necessary information

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as requested by the agency and/or submitted by the provider(s) and/or beneficiaries;

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     (ii) Each agency shall provide accurate peer review contact information to the provider at

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the time of service, if requested, and/or prior to such service, if requested. This contact

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information must provide a mechanism for direct communication with the agency's peer

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reviewer; and

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     (iii) Agency peer reviewers shall respond to the provider's request for a two-way, direct

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communication defined in this subsection (b) as follows:

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     (A) For a prospective review of non-urgent and non-emergent health care services, a

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response within one business day of the request for a peer discussion;

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     (B) For concurrent and prospective reviews of urgent and emergent health care services, a

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response within a reasonable period of time of the request for a peer discussion; and

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     (C) For retrospective reviews, prior to the internal-level appeal decision.

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     (5) The review agency will have met the requirements of a two-way, direct

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communication, when requested and/or as required prior to the internal level of appeal, when it

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has made two (2) reasonable attempts to contact the attending provider directly. Repeated

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violations of this section shall be deemed to be substantial violations pursuant to § 27-18.9-9 and

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shall be cause for the imposition of penalties under that section.

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     (6) For the appeal of an adverse benefit determination decision that a drug is not covered,

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the review agent shall complete the internal-appeal determination and notify the claimant of its

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determination:

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     (i) No later than seventy-two (72) hours following receipt of the appeal request; or

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     (ii) No later than twenty-four (24) hours following the receipt of the appeal request in

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cases where the beneficiary is suffering from a health condition that may seriously jeopardize the

 

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beneficiary's life, health, or ability to regain maximum function or when an beneficiary is

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undergoing a current course of treatment using a non-formulary drug.

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     (iii) And if approved on appeal, coverage of the non-formulary drug must be provided for

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the duration of the prescription, including refills unless expedited then for the duration of the

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exigency.

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     (7) The review agents using clinical criteria and medical judgment in making utilization

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review decisions shall comply with the following:

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     (i) The requirement that each review agent shall provide its clinical criteria to OHIC upon

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request;

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     (ii) Provide and use written clinical criteria and review procedures established according

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to nationally accepted standards, evidence-based medicine and protocols that are periodically

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evaluated and updated or other reasonable standards required by the commissioner;

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     (iii) Establish and employ a process to incorporate and consider local variations to

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national standards and criteria identified herein including without limitation, a process to

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incorporate input from local participating providers; and

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     (iv) Updated description of clinical decision criteria to be available to beneficiaries,

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providers, and the office upon request and readily available accessible on the health care entity or

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the review agent's website.

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     (8) The review agent shall maintain records of written, adverse benefit determination

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reconsiderations and appeals to include their resolution, and shall provide reports and other

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information as requested by the office.

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     27-18.9-8. External appeal procedural requirements. [Effective January 1, 2018.].

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     (a) General requirements.

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     (1) In cases where the non-administrative, adverse benefit determination or the final

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internal level of appeal to reverse a non-administrative, adverse benefit determination is

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unsuccessful, the health care entity or review agent shall provide for an external appeal by an

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independent review organization (IRO) approved by the commissioner and ensure that the

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external appeal complies with all applicable laws and regulations. Provided, the independent

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review must be conducted by a licensed physician or dentist who is licensed , certified, or

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otherwise formally recognized as a specialist in the field of the health care services or the

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problem being reviewed

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     (2) In order to seek an external appeal, claimant must have exhausted the internal claims

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and appeal process unless the utilization review agent or health care entity has waived the internal

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appeal process by failing to comply with the internal appeal process or the claimant has applied

 

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for expedited external review at the same time as applying for expedited internal review.

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     (3) A claimant shall have at least four (4) months after receipt of a notice of the decision

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on a final internal appeal to request an external appeal by an IRO.

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     (4) Health care entities and review agents must use a rotational IRO registry system

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specified by the commissioner, and must select an IRO in the rotational manner described in the

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IRO registry system.

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     (5) A claimant requesting an external appeal may be charged no more than a twenty-five

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dollar ($25.00) external appeal fee by the review agent. The external appeal fee, if charged, must

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be refunded to the claimant if the adverse benefit determination is reversed through external

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review. The external appeal fee must be waived if payment of the fee would impose an undue

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financial hardship on the beneficiary. In addition, the annual limit on external appeal fees for any

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beneficiary within a single plan year (in the individual market, within a policy year) must not

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exceed seventy-five dollars ($75.00). Notwithstanding the aforementioned, this subsection shall

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not apply to excepted benefits as defined in 42 U.S.C. § 300gg-91(c).

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     (6) IRO and/or the review agent and/or the health care entity may not impose a minimum

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dollar amount of a claim for a claim to be eligible for external review by an IRO.

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     (7) The decision of the external appeal by the IRO shall be binding on the health care

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entity and/or review agent; however, any person who is aggrieved by a final decision of the

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external appeal agency is entitled to judicial review in a court of competent jurisdiction.

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     (8) The health care entity must provide benefits (including making payment on the claim)

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pursuant to an external review decision without delay regardless whether the health care entity or

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review agent intends to seek judicial review of the IRO decision.

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     (9) The commissioner shall promulgate rules and regulations including, but not limited

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to, criteria for designation, operation, policy, oversight, and termination of designation as an IRO.

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The IRO shall not be required to be certified under this chapter for activities conducted pursuant

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to its designation.

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     (b) The external appeal process shall include, but not be limited to, the following

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characteristics:

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     (1) The claimant must be noticed that he/she shall have at least five (5) business days

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from receipt of the external appeal notice to submit additional information to the IRO.

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     (2) The IRO must notice the claimant of its external appeal decision to uphold or overturn

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the review agency decision:

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     (i) No more than ten (10) calendar days from receipt of all the information necessary to

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complete the external review and not greater than forty-five (45) calendar days after the receipt of

 

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the request for external review; and

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     (ii) In the event of an expedited external appeal by the IRO for urgent or emergent care,

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as expeditiously as possible and no more than seventy-two (72) hours after the receipt of the

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request for the external appeal by the IRO. Notwithstanding provisions in this section to the

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contrary, this notice may be made orally but must be followed by a written decision within forty-

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eight (48) hours after oral notice is given.

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     (3) For an external appeal of an internal appeal decision that a drug is not covered, the

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IRO shall complete the external appeal determination and notify the claimant of its determination:

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     (i) No later than seventy-two (72) hours following receipt of the external appeal request;

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or

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     (ii) No later than twenty-four (24) hours following the receipt of the external appeal

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request if the original request was an expedited request; and

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     (iii) If approved on external appeal, coverage of the non-formulary drug must be provided

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for the duration of the prescription, including refills, unless expedited then for the duration of the

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exigencies.

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     (c) External appeal decision notifications. The health care entity and review agent must

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ensure that the IRO adheres to the following relative to decision notifications:

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     (1) May be written or electronic with reasonable assurance of receipt by claimant unless

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urgent or emergent. If urgent or emergent, oral notification is acceptable followed by written or

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electronic notification within three (3) calendar days;

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     (2) Must be culturally and linguistically appropriate;

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     (3) The details of claim that is being denied to include the date of service, provider name,

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amount of claim, diagnostic code, and treatment costs with corresponding meanings;

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     (4) Must include the specific reason or reasons for the external appeal decision;

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     (5) Must include information for claimant as to procedure to obtain copies of any and all

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information relevant to the external appeal which copies must be provided to the claimant free of

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charge; and

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     (6) Must not be written in a manner that could reasonably be expected to negatively

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impact the beneficiary.

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     SECTION 2. This act shall take effect upon passage.

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LC003345

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO INSURANCE -- BENEFIT DETERMINATION AND UTILIZATION

REVIEW ACT

***

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     This act would provide that both internal and external reviews of health insurance benefit

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determinations as to insurance coverage would be conducted by a licensed physician or dentist

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who is licensed, certified, or otherwise formally recognized as a specialist in the field of the

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health care services or the problems being reviewed.

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     This act would take effect upon passage.

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LC003345

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