Introduced By: Senators Kelly, Roberts, Enos, Goodwin and Izzo
Date Introduced : February 9, 1999
It is enacted by the General Assembly as follows:
SECTION 1. Sections 23-17.12-2, 23-17.12-3, 23-17.12-4, 23-17.12-5, 23-17.12-8, 23-17.12-9 and 23-17.12-10 of the General Laws in Chapter 23-17.12 entitled "Health Care Services -- Utilization Review Act" are hereby amended to read as follows:
23-17.12-2. Definitions. -- As used in this chapter, the following terms shall be defined as follows:
(1) "Adverse determination" means any decision by a
review agent not to certify {DEL an admission, service, procedure,
or extension of stay. DEL} {ADD a health care service; provided,
however, that a decision by a review agent to certify a health
care service in an alternative setting, a modified extension of
stay, or an alternative treatment shall not constitute an adverse
determination if the review agent and provider are in agreement
regarding the decision. Adverse determinations shall include
decisions not to certify formulary and nonformulary medication. ADD}
(2) "Certificate" means a certificate of registration granted by the director to a review agent.
(3) "Department" means the Rhode Island Department of Health.
(4) "Director" means the director of health.
(5) "Patient" means an enrollee or participant in all hospital or medical plans seeking health care services and treatment from a provider.
(6) "Provider" means any health care facility, as defined in section 23-17-2 including any mental health and/or substance abuse treatment facility, physician, or other licensed practitioners identified to the review agent as having primary responsibility for the care, treatment, and services rendered to a patient.
(7) "Review agent" means a person or entity or insurer performing utilization review that is either employed by, affiliated with, under contract with, or acting on behalf of:
(i) A business entity doing business in this state; or
(ii) A party that provides or administers health care benefits to citizens of this state, including a health insurer, self-insured plan, non-profit health service plan, health insurance service organization, preferred provider organization or health maintenance organization authorized to offer health insurance policies or contracts or pay for the delivery of health care services or treatment in this state; or
(iii) A provider.
(8) "Utilization Review" means the prospective {ADD , ADD}
{DEL or DEL} concurrent {ADD or ADD} {ADD retrospective ADD}assessment
of the necessity and appropriateness of the allocation of health
care {DEL resources and DEL} services of a provider, given
or proposed to be given to a patient or group of patients. Utilization
review does not mean elective requests for {ADD the ADD} clarification
of coverage {ADD ; ADD} or claims review {ADD that does not include
the assessment of the medical necessity and appropriateness ADD};
or a provider's internal quality assurance program except if it
is associated with a health care financing mechanism.
(9) "Utilization Review Plan" means a description of the standards governing utilization review activities performed by a private review agent.
{ADD (10) "Health care services" means and includes an admission, diagnostic procedure, therapeutic procedure, treatment, extension of stay, the ordering and/or filling of formulary or non-formulary medications, and such other services, activities or supplies which are covered by the patient's benefit plan. ADD}
{ADD (11) "Practitioner" means any person licensed to provide or otherwise lawfully providing health care services, including, but not limited to, a physician, dentist, nurse, optometrist, podiatrist, physical therapist, clinical social worker, or psychologist. ADD}
{ADD (12) "Emergent health care services" shall have the same meaning as that meaning contained in the rules and regulations promulgated pursuant to chapter 12.3 of title 42 as may be amended from time to time and shall include those resources provided in the event of the sudden onset of a medical, mental health or substance abuse or other health care condition manifesting itself by acute symptoms of a severity (e.g. severe pain) where the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily or mental functions, or serious dysfunction of any body organ or part. ADD}
{ADD (13) "Urgent health care services" shall have the same meaning as that meaning contained in the rules and regulations promulgated pursuant to chapter 12.3 of title 42 as may be amended from time to time and shall include those resources necessary to treat a symptomatic medical, mental health or substance abuse or other health care condition requiring treatment within a twenty four (24) hour period of the onset of such a condition in order that the patient's health status not decline as a consequence. This does not include those conditions considered to be emergent health care services as defined herein. ADD}
23-17.12-3. Regulation of review agents -- Certificate. -- (a) A review agent shall not conduct utilization review in the state unless the department has granted the review agent a certificate.
(b) Review agents who are operating in Rhode Island prior to the promulgation of regulations pursuant to this chapter may continue to conduct utilization review until such time as the department promulgates regulations, develops required forms, and has acted on the application submitted by the review agent.
(c) Individuals shall not be required to hold separate certification under this chapter when acting as either an employee of, an affiliate of, a contractor for, or otherwise acting on behalf of a certified review agent.
(d) The department shall issue a certificate to an applicant that has met the minimum standards established by this chapter, and regulations promulgated in accordance with it, including the payment of such fees as required, and other applicable regulations of the department.
(e) A certificate issued under this chapter is not transferable; and the transfer of fifty percent (50%) or more of the ownership of a review agent shall be deemed a transfer.
(f) After consultation with the payers and providers of health care, no later than one year after January 1, 1993, the department shall adopt regulations necessary to implement the provisions of this chapter including but not limited to the following:
(1) The requirement that the review agent provide patients and providers with a summary of its utilization review plan including a summary of the standards, procedures and methods to be used in evaluating proposed or delivered health care services;
(2) The circumstances, if any, under which utilization review may be delegated to any other utilization review program and evidence that such delegated agency is a certified utilization review agency pursuant to the requirements of this chapter;
(3) A complaint resolution process, acceptable to the department whereby patients, their physicians or other health care providers may seek prompt reconsideration or appeal of adverse decisions by the review agent, as well as the resolution of complaints and other matters of which the review agent has received written notice thereof;
(4) The type and qualifications of personnel authorized to perform
utilization review, including a requirement that only a {DEL licensed DEL}
practitioner with the same {DEL licensure DEL} status as
the ordering practitioner, {DEL physician or dentist in the
same or a similar general specialty as typically manages the medical
condition, procedure or treatment DEL} {ADD or a licensed physician
or dentist ADD} be permitted to make a {DEL final DEL} {ADD prospective
or concurrent adverse ADD} determination {DEL that care rendered
or to be rendered is medically inappropriate DEL};
(5) The requirement that each review agent shall utilize written medically acceptable screening criteria and review procedures which are established and periodically evaluated and updated with appropriate consultation with Rhode Island licensed physicians, including practicing physicians, and other health care providers.
(6) The requirement that, other than in exceptional circumstances,
or when the patient's attending physician or dentist is not reasonably
available, no {ADD adverse ADD} determination that care rendered
or to be rendered is medically inappropriate shall be made until
an appropriately qualified and licensed review physician {ADD , ADD}
{DEL or DEL} dentist {ADD or other practitioner, ADD} has
spoken to the patient's attending {DEL provider, DEL} physician {ADD , ADD}
{DEL or DEL} dentist {ADD or other practitioner, ADD} concerning
such medical care;
(7) The requirement that, upon written request made by or on behalf
of a patient, any determination that care rendered or to be rendered
is medically inappropriate shall include the written evaluation
and findings of the reviewing physician {ADD , ADD} {DEL or DEL}
dentist {ADD or other practitioner; ADD} provided, however, that
the review agent is required to accept a verbal request made by
or on behalf of a patient for such information where a provider
or patient can demonstrate that a timely response is urgent; said
verbal request must within seven (7) days be confirmed in writing;
(8) The requirement that a representative of the review agent
is reasonably accessible to patients, patient's family, and providers
at least five (5) days a week during normal business {DEL hours DEL}
{ADD in Rhode Island and during the hours of the agency's review
operations ADD}.
(9) The policies and procedures to ensure that all applicable state and federal laws to protect the confidentiality of individual medical records are followed;
(10) The policies and procedures regarding the notification and conduct of patient interviews by the review agent.
(11) The requirement that no employee of, or other individual rendering an adverse determination for, a review agent may receive any financial incentives based upon the number of denials of certification made by such employee or individual.
(12) The requirement that {DEL immediate coverage be provided DEL}
{ADD the utilization review agent shall not impede the provision
of health care services ADD} for treatment and/or hospitalization
or other use of a provider's services or facilities for any patient
for whom the treating provider determines {ADD the health care service ADD}
{DEL the admission and/or treatment DEL}to be of an emergency
nature. The emergency nature of the {ADD health care service ADD}
{DEL admission or treatment DEL} shall be documented and
signed by a licensed physician {ADD , dentist or other practitioner
ADD}and may be subject to review by a review agent.
(13) The requirement that a review agent shall make a determination, and shall communicate that determination within time-frames and by such means as specified by the department; and
(14) The requirement that except in circumstances as may be allowed
by regulations promulgated pursuant to this chapter, no {ADD adverse ADD}
determination shall be made on any question relating to {DEL hospital,
medical or other DEL} health care and/or medical services
by any person other than {DEL a DEL} {ADD an appropriately ADD}
licensed physician {ADD , dentist ADD} {DEL or DEL} {ADD or other
practitioner ADD} {DEL dentist, DEL} which determination
shall be discussed by {DEL said physician DEL} {ADD the reviewing
practitioner ADD} with the affected provider or other designated
or qualified professional or provider responsible for treatment
of the patient.
(g) The director of health is authorized to establish such fees for initial application, renewal applications, and such other administrative actions as deemed necessary by the director to implement this chapter.
{ADD (h) The total cost of certification under this title shall be borne by the entities so certified and shall be one hundred and fifty percent (150%) of the total salaries paid to the certifying personnel of the department engaged in those certifications less any salary reimbursements and shall be paid to the director to and for the use of the department. That assessment shall be in addition to any taxes and fees otherwise payable to the state. ADD}
23-17.12-4. Application. -- (a) An applicant for a certificate shall:
(1) Submit an application to the director; and
(2) Pay the application fee established by the director through
regulation {DEL . DEL} {ADD and section 23-17 .2-3(g) herein.
ADD}
(b) The application shall:
(1) Be on a form and accompanied by supporting documentation that the director requires; and
(2) Be signed and verified by the applicant.
(c) In conjunction with the application, the review agent shall submit information that the director requires including:
(1) A utilization review plan that includes:
(i) The standards and criteria to be utilized by the review agent, provided however, that the agent may request that the state agency regard specific portions thereof or the entire document to constitute "trade secrets" within the meaning of that term in section 38-2-2(d)(2);
(ii) Those circumstances, if any, under which utilization review may be delegated to a provider utilization review program; and
(iii) A complaint resolution process, consistent with section 23-17.12-9, whereby patients, physicians or other health care providers may seek prompt reconsideration or appeal of adverse determinations by the review agent as well as the resolution of other complaints regarding the review process.
(2) The type and qualifications of the personnel either employed or under contract to perform the utilization review;
(3) The procedures and policies to ensure that a representative
of the review agent is reasonably accessible to patients and providers
five (5) days a week during normal business {DEL hours DEL}
{ADD in Rhode Island and during the hours of the agency's review
operations ADD};
(4) The policies and procedures to ensure that all applicable state and federal laws to protect the confidentiality of individual medical records are followed;
(5) A copy of the materials used to inform enrollees of the requirements under the health benefit plan for seeking utilization review or pre-certification and their rights under this chapter, including information on appealing adverse determinations.
(6) A copy of the materials designed to inform applicable patients and providers of the requirements of the utilization review plan;
(7) A list of the third party payers and business entities for which the review agent is performing utilization review in this state and a brief description of the services it is providing for each client.
(8) Evidence that the review agent has not entered into a compensation agreement or contract with its employees or agents whereby the compensation of its employees or its agents is based upon a reduction of services or the charges therefore, the reduction of length of stay, or utilization of alternative treatment settings; provided nothing in this chapter shall prohibit agreements and similar arrangements.
(9) Evidence of liability insurance or of assets sufficient to cover potential liability.
(d) Any {ADD systemic ADD} changes in the review agents operations
relative to certification {DEL requirements DEL} {ADD information
on file shall be submitted ADD} to the department for approval
{DEL at least DEL} {ADD within ADD} thirty (30) days prior
to implementation.
(e) The information provided must demonstrate that the review agent will comply with the regulations adopted by the director under this chapter.
(f) The application and other fees required under this chapter shall be sufficient to pay for the administrative costs of the certificate program and any other reasonable costs associated with carrying out the provisions of this chapter.
23-17.12-5. Renewal of certificate. -- (a) A certificate expires on the second anniversary of its effective date unless the certificate is renewed for a two-year term as provided in this section.
(b) Before the certificate expires, a certificate may be renewed for an additional two-year term if the applicant:
(1) Otherwise is entitled to the certificate;
(2) Pays to the director the renewal fee set by the director through regulation {ADD consistent with section 23-17.12-3(g) herein ADD}; and
(3) Submits to the director:
(i) A renewal application on the form that the director requires; and
(ii) Satisfactory evidence of compliance with any requirements under this chapter for certificate renewal.
(c) If the requirements of this section are met, the director shall renew a certificate.
(d) If a completed application is being processed by the department, a certificate may be continued until a renewal determination is made.
23-17.12-8. Waiver of requirements. -- (a) Except for utilization review activities performed to determine the necessity and appropriateness of substance abuse and mental health care, treatment or services, the department shall waive all the requirements of this chapter, with the exception of those contained in sections 23-17.12-9, 23-17.12-12, and 23-17.12-14, for a review agent that has received, maintains and provides evidence to the department of accreditation from the utilization review accreditation commission (URAC) or other organization approved by the director. The waiver shall be applicable only to those services which are included under the accreditation by the utilization review accreditation commission or other approved organization.
{DEL (b) Utilization review agents subject to the waiver under
subsection (a) shall nevertheless make available to providers
and patients under utilization review external appeals where the
final level of appeal to reverse an adverse determination is unsuccessful.
Patients and providers shall be notified of the availability of
such external appeals. All costs of such appeal, including the
fee charged by the neutral physician, dentist or other practitioner
and all administrative charges, shall be shared equally by the
parties to the appeal. The external appeals agent, which shall
not be a competitor of the utilization review agent involved,
can only assess whether the utilization review agent appropriately
applied its review criteria. The department shall by regulation
establish maximum limits on administrative charges by external
review agents. DEL}
{DEL (c) DEL} {ADD (b) ADD} The department shall waive the
requirements {DEL of section 23-17.12-10 DEL} of this chapter
{ADD only when a direct conflict exists with ADD} {DEL for DEL}
those activities of a review agent that are conducted pursuant
to contract {ADD s ADD} with the state or the federal government {ADD ; ADD}
{ADD or those activities under other state or federal jurisdictions. ADD}
{DEL for utilization review of patients eligible for provider
services under (1) title XVIII and title XIX of the Social Security
Act, 42 U.S.C. section 1395 et seq.; (2) chapter 12.3 of title
42; and (3) the civilian health and medical program of the uniformed
services (CHAMPUS). Unless otherwise exempted, the review agent
shall comply with all other sections of this chapter. DEL}
23-17.12-9. Decisions and internal appeals. -- The decision and appeals process of the review agent shall conform to the following:
(1) Notification of a prospective determination by the review
agent shall be mailed or otherwise communicated to the provider
of record and to the patient or other appropriate individual within
one business day of the receipt of all information necessary to
complete the review {DEL . DEL} {ADD unless otherwise determined
by the department in regulation for non urgent and non emergency
services. ADD}
(2) Notification of a concurrent determination shall be mailed
or otherwise communicated to the patient and to the provider of
record {DEL within one business day of receipt of all information
necessary to complete the review or, provided that all information
necessary to perform the review has been received DEL}, prior
to the end of the current certified period {ADD consistent with
time frames to be established in regulations promulgated by the
department ADD}.
{ADD (3)(a) Notification of a retrospective determination shall be mailed or otherwise communicated to the patient and to the provider of record within thirty (30) business days of receipt of a request for payment with all supporting documentation for the covered benefit being reviewed. A utilization review shall not retrospectively deny coverage for health care services provided to a covered person when prior approval has been obtained from the review agent unless such approval was based upon inaccurate information material to the review or the health care services were not provided consistent with the provider's submitted plan of care and/or any restrictions included in the prior approval granted by the review agent. ADD}
{ADD (b) ADD} Any notice of a determination not to certify {ADD a health
care ADD} {DEL an admission, DEL} service {DEL , DEL}
{DEL procedure or extension or stay DEL} {ADD shall be made,
documented and signed and ADD} shall be mailed or otherwise communicated,
and shall include (i) the principal reasons for the determination
and (ii) the procedures to initiate an appeal of the determination
or the name and telephone number of the person to contract with
regard to an appeal.
(4) The review agent shall maintain and make available a written
description of the appeal procedure by which either the patient
or the provider of record may seek review of determinations not
to certify {DEL an admission, DEL} {ADD a health care ADD}
service {DEL , procedure, or extension of stay DEL}. The
process established by each review agent may include a reasonable
period within which an appeal must be filed to be considered {DEL . DEL}
{ADD and that period shall not be less than sixty (60) days ADD}.
(5) The review agent shall notify in writing the patient and provider
of record of its {DEL determination DEL} {ADD decision ADD}
on the appeal as soon as practical, but in no case later than
fifteen (15) or twenty-one (21) working days if verbal notice
is given within fifteen (15) working days after receiving the
required documentation on the appeal.
(6) The review agent shall also provide for an expedited appeals process for emergency or life threatening situations. Each review agent shall complete the adjudication of such expedited appeals within two (2) business days of the date the appeal is filed and all information necessary to complete the appeal is received by the review agent.
(7) All initial {ADD , prospective and concurrent ADD} adverse determinations
{ADD of a ADD} {DEL and all first level of appeals of determinations
not to certify an admission, DEL} {ADD health care ADD} service {DEL ,
procedure or extension of stay DEL} that had been ordered
by a physician, dentist or other practitioner, shall be made,
documented, and signed by a licensed practitioner with the same
licensure status as the ordering practitioner or a licensed physician
{ADD or dentist ADD}.
(8) In cases where an initial appeal to reverse an adverse determination
is unsuccessful, the review agent shall assure that a licensed
practitioner with the same licensure status as the ordering practitioner
or a licensed physician in the same or a similar general specialty
as typically manages the medical condition, procedure, or treatment
under discussion {ADD conducts the next level of review. ADD} {DEL is
reasonably available, to review the case as a second (2nd) level
of appeal. No appeals physician or other reviewer may be compensated
or paid a bonus or incentive based on upholding an adverse determination.
No physician or other reviewer who has been involved in prior
reviews of the case under appeal or who has participated in the
direct care of the patient may participate as the sole reviewer
in reviewing a case under appeal; provided, however, that when
new information has been made available at the first level of
appeal then the review may be conducted by the same reviewer who
made the adverse determination. DEL}
(9) The review agent shall maintain records of written appeals and their resolution, and shall provide reports as requested by the department.
(10) The department may, in response to a complaint which is provided in written form to the review agent, review an appeal regarding any adverse determination, and may request information of the review agent, provider, or patient regarding the status, outcome, or rationale regarding the decision.
{ADD (11) All initial retrospective adverse determinations of a health care service that had been ordered by a physician, dentist or other practitioner, shall be made, documented, and signed consistent with the regulatory requirements which shall be developed by the department with the input of review agents, providers and other affected parties. ADD}
{ADD (12) All first level of appeals of determinations not to certify a health care service that had been ordered by a physician, dentist or other practitioner, shall be made, documented, and signed by a licensed practitioner with the same licensure status as the ordering practitioner or a licensed physician or a licensed dentist. ADD}
{ADD (13) The review agent must assure that the licensed practitioner or licensed physician required in section 23-17.12-9(11) is reasonably available to review the case as required under 23-17.12-3(8). ADD}
{ADD (14) No reviewer at any level under this statute shall be compensated or paid a bonus or incentive based on making or upholding adverse determination. ADD}
{ADD (15) No reviewer under this statute who has been involved in prior reviews of the case under appeal or who has participated in the direct care of the patient may participate as the sole reviewer in reviewing a case under appeal; provided, however, that when new information has been made available at the first level of appeal then the review may be conducted by the same reviewer who made the initial adverse determination. ADD}
{DEL (11) DEL} {ADD (16) ADD} A review agent is only entitled
to review information or data relevant to the utilization review
process. A review agent may not disclose or publish individual
medical records or any confidential medical information obtained
in the performance of utilization review activities. A review
agent shall be considered a third (3rd) party health insurer for
the purposes of section 5-37.3-6(b)(6) of this state and shall
be required to maintain the security procedures mandated in section
5-37.3-4(c).
Notwithstanding any other provision of law, the review agent, the department and all other parties privy to information which is the subject of this chapter shall comply with all state and federal confidentiality laws, including but not limited to chapter 5-37.3 (confidentiality of health care information act) and specifically section 5-37.3-4(c) which requires limitation on the distribution of such information on a "need to know" basis and section 40.1-5-26.
23-17.12-10. External appeals. -- (a) In cases where the second level of appeal to reverse an adverse determination is unsuccessful, the review agent shall provide for an external appeal by an unrelated and objective appeal agency, selected by the director. The director shall promulgate rules and regulations including, but not limited to, criteria for designation, operation, policy, oversight, and termination of designation as an external appeal agency. The external appeal agency shall not be required to be certified under this chapter for activities conducted pursuant to such designation.
(b) The external appeal shall have the following characteristics:
(1) The external appeal review and decision shall be based on
the medical necessity for the {ADD health ADD} care {DEL , DEL}
{DEL treatment DEL} or service, and the appropriateness
of service delivery for which authorization has been denied.
(2) Neutral physicians {ADD , ADD} {DEL or DEL} dentists {ADD or
other practitioners in the same or similar general specialty as
typically manages the health care service ADD} shall be utilized
to make the {ADD external appeal decisions ADD} {DEL final determinations DEL}.
{ADD (3) ADD} Neutral physicians {ADD , ADD} {DEL or DEL} dentists
{ADD or other practitioners ADD} shall be selected from lists:
(i) Mutually agreed upon by the provider associations, insurers and the purchasers of health services; and
(ii) Used during a twelve-month period as the source of names
for neutral physician {ADD , ADD} {DEL or DEL} dentist {ADD or
other practitioner ADD} reviewers.
{DEL (3) DEL} {ADD (4) ADD} The neutral physician {ADD , ADD}
{DEL or DEL} dentist {ADD or other practitioner ADD} may confer
either directly with the review agent and provider, or with physicians
or dentists appointed to represent them.
{DEL (4) DEL} {ADD (5) ADD} Payment for the appeal fee charged
by the neutral physician {ADD , ADD} {DEL or DEL} dentist {ADD or
other practitioner ADD} shall be shared equally between the two
(2) parties to the appeal {ADD ; provided, however, that if the decision
of the utilization review agent is overturned, the appealing party
shall be reimbursed by the utilization review agent for their
share of the appeal fee paid under this subsection ADD}.
{DEL (5) DEL} {ADD (6) ADD} The decision of the external appeal
agency shall be binding; however, any person who is aggrieved
by a final decision of the external appeal agency is entitled
to judicial review in a court of competent jurisdiction.
SECTION 2. This act shall take effect on January 1, 2000.
