2013 -- H 5590

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LC01781

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO HEALTH AND SAFETY -- UTILIZATION REVIEW

     Introduced By: Representatives Keable, Johnston, Cimini, and Kazarian

     Date Introduced: February 27, 2013

     Referred To: House Corporations

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 23-17.12-9 of the General Laws in Chapter 23-17.12 entitled

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"Health Care Services - Utilization Review Act" is hereby amended to read as follows:

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     23-17.12-9. Review agency requirement for adverse determination and internal

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appeals. -- (a) The adverse determination and appeals process of the review agent shall conform

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to the following:

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      (1) Notification of a prospective adverse determination by the review agent shall be

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mailed or otherwise communicated to the provider of record and to the patient or other

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appropriate individual as follows:

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      (i) Within fifteen (15) business days of receipt of all the information necessary to

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complete a review of non-urgent and/or non-emergent services, exclusive of prescriptions;

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      (ii) Within seventy-two (72) hours of receipt of all the information necessary to complete

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a review of urgent and/or emergent services, exclusive of prescriptions; and

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     (iii) Within forty-eight (48) hours of receipt of all the information necessary to complete

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a review of non-urgent and/or non-emergent prescriptions, provided further, that the failure to

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comply within said forty-eight (48) hours of receipt shall result in automatic approval;

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     (iv) Within two (2) hours of receipt of all the information necessary to complete a review

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of urgent and/or emergent prescriptions; provided further, that he failure to comply within said

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two (2) hours of receipt shall result automatic approval;

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     (iii)(v) Prior to the expected date of service.

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      (2) Notification of a concurrent adverse determination shall be mailed or otherwise

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communicated to the patient and to the provider of record period as follows:

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      (i) To the provider(s) prior to the end of the current certified period; and

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      (ii) To the patient within one business day of making the adverse determination.

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      (3) Notification of a retrospective adverse determination shall be mailed or otherwise

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communicated to the patient and to the provider of record within thirty (30) business days of

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receipt of a request for payment with all supporting documentation for the covered benefit being

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reviewed.

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      (4) A utilization review agency shall not retrospectively deny authorization for health

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care services provided to a covered person when an authorization has been obtained for that

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service from the review agent unless the approval was based upon inaccurate information

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material to the review or the health care services were not provided consistent with the provider's

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submitted plan of care and/or any restrictions included in the prior approval granted by the review

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agent.

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      (5) Any notice of an adverse determination shall include:

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      (i) The principal reasons for the adverse determination, to include explicit documentation

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of the criteria not met and/or the clinical rationale utilized by the agency's clinical reviewer in

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making the adverse determination. The criteria shall be in accordance with the agency criteria

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noted in subsection 23-17.12-9(d) and shall be made available within the first level appeal

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timeframe if requested unless otherwise provided as part of the adverse determination notification

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process;

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      (ii) The procedures to initiate an appeal of the adverse determination, including the name

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and telephone number of the person to contract with regard to an appeal;

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      (iii) The necessary contact information to complete the two-way direct communication

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defined in subdivision 23-17.12-9(a)(7); and

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      (iv) The information noted in subdivision 23-27.12-9(a)(5)(i)(ii)(iii) for all verbal

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notifications followed by written notification to the patient and provider(s).

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      (6) All initial retrospective adverse determinations of a health care service that had been

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ordered by a physician, dentist or other practitioner shall be made, documented and signed

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consistent with the regulatory requirements which shall be developed by the department with the

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input of review agents, providers and other affected parties.

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      (7) A level one appeal decision of an adverse determination shall not be made until an

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appropriately qualified and licensed review physician, dentist or other practitioner has spoken to,

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or otherwise provided for, an equivalent two-way direct communication with the patient's

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attending physician, dentist, other practitioner, other designated or qualified professional or

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provider responsible for treatment of the patient concerning the medical care, with the exception

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of the following:

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      (i) When the attending provider is not reasonably available;

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      (ii) When the attending provider chooses not to speak with agency staff;

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      (iii) When the attending provider has negotiated an agreement with the review agent for

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alternative care; and/or

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      (iv) When the attending provider requests a peer to peer communication prior to the

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adverse determination, the review agency shall then comply with subdivision 23-17.12-9(c)(1) in

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responding to such a request. Such requests shall be on the case specific basis unless otherwise

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arranged for in advance by the provider.

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      (8) All initial, prospective and concurrent adverse determinations of a health care service

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that had been ordered by a physician, dentist or other practitioner shall be made, documented and

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signed by a licensed practitioner with the same licensure status as the ordering practitioner or a

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licensed physician or dentist. This does not prohibit appropriately qualified review agency staff

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from engaging in discussions with the attending provider, the attending provider's designee or

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appropriate health care facility and office personnel regarding alternative service and treatment

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options. Such a discussion shall not constitute an adverse determination provided though that any

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change to the provider's original order and/or any decision for an alternative level of care must be

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made and/or appropriately consented to by the attending provider or the provider's designee

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responsible for treating the patient.

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      (9) The requirement that, upon written request made by or on behalf of a patient, any

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adverse determination and/or appeal shall include the written evaluation and findings of the

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reviewing physician, dentist or other practitioner. The review agent is required to accept a verbal

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request made by or on behalf of a patient for any information where a provider or patient can

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demonstrate that a timely response is urgent.

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      (b) The review agent shall conform to the following for the appeal of an adverse

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determination:

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

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appeal procedure by which either the patient or the provider of record may seek review of

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determinations not to authorize a health care service. The process established by each review

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agent may include a reasonable period within which an appeal must be filed to be considered and

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that period shall not be less than sixty (60) days.

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

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decision on the appeal as soon as practical, but in no case later than fifteen (15) or twenty-one

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(21) business days if verbal notice is given within fifteen (15) business days after receiving the

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required documentation on the appeal.

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      (3) The review agent shall also provide for an expedited appeals process for emergency

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or life threatening situations. Each review agent shall complete the adjudication of expedited

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appeals within two (2) business days of the date the appeal is filed and all information necessary

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to complete the appeal is received by the review agent.

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      (4) All first level appeals of determinations not to authorize a health care service that had

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been ordered by a physician, dentist, or other practitioner shall be made, documented, and signed

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by a licensed practitioner with the same licensure status as the ordering practitioner or a licensed

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physician or a licensed dentist.

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      (5) All second level appeal decisions shall be made, signed, and documented by a

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licensed practitioner in the same or a similar general specialty as typically manages the medical

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condition, procedure, or treatment under discussion.

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      (6) The review agent shall maintain records of written appeals and their resolution, and

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shall provide reports as requested by the department.

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      (c) The review agency must conform to the following requirements when making its

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adverse determination and appeal decisions:

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      (1) The review agent must assure that the licensed practitioner or licensed physician is

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reasonably available to review the case as required under subdivision 23-17.12-9(a)(7) 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 patients;

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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;

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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 subdivision 23-17.12-9(a)(7)(iv) 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,

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a 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 first level appeal decision.

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      (iv) 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 first level of appeal, when it has

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

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      (v) Repeated violations of this section shall be deemed to be substantial violations

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pursuant to section 23-17.12-14 and shall be cause for the imposition of penalties under that

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section.

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      (2) No reviewer at any level under this section shall be compensated or paid a bonus or

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incentive based on making or upholding an adverse determination.

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      (3) No reviewer under this section who has been involved in prior reviews of the case

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under appeal or who has participated in the direct care of the patient may participate as the sole

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reviewer in reviewing a case under appeal; provided, however, that when new information has

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been made available at the first level of appeal, then the review may be conducted by the same

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reviewer who made the initial adverse determination.

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      (4) A review agent is only entitled to review information or data relevant to the

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utilization review process. A review agent may not disclose or publish individual medical records

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or any confidential medical information obtained in the performance of utilization review

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

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section 5-37.3-6(b)(6) of this state and shall be required to maintain the security procedures

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mandated in section 5-37.3-4(c).

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      (5) Notwithstanding any other provision of law, the review agent, the department, and all

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other parties privy to information which is the subject of this chapter shall comply with all state

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and federal confidentiality laws, including, but not limited to, chapter 37.3 of title 5

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(Confidentiality of Health Care Communications and Information Act) and specifically section 5-

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37.3-4(c), which requires limitation on the distribution of information which is the subject of this

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chapter on a "need to know" basis, and section 40.1-5-26.

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      (6) The department may, in response to a complaint that is provided in written form to

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the review agent, review an appeal regarding any adverse determination, and may request

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information of the review agent, provider or patient regarding the status, outcome or rationale

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regarding the decision.

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      (d) The requirement that each review agent shall utilize and provide upon request, by

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Rhode Island licensed hospitals and the Rhode Island Medical Society, in either electronic or

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paper format, written medically acceptable screening criteria and review procedures which are

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established and periodically evaluated and updated with appropriate consultation with Rhode

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Island licensed physicians, hospitals, including practicing physicians, and other health care

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providers in the same specialty as would typically treat the services subject to the criteria as

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follows:

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      (1) Utilization review agents shall consult with no fewer than five (5) Rhode Island

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licensed physicians or other health care providers. Further, in instances where the screening

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criteria and review procedures are applicable to inpatients and/or outpatients of hospitals, the

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medical director of each licensed hospital in Rhode Island shall also be consulted. Utilization

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review agents who utilize screening criteria and review procedures provided by another entity

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may satisfy the requirements of this section if the utilization review agent demonstrates to the

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satisfaction of the director that the entity furnishing the screening criteria and review procedures

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has complied with the requirements of this section.

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      (2) Utilization review agents seeking initial certification shall conduct the consultation

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for all screening and review criteria to be utilized. Utilization review agents who have been

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certified for one year or longer shall be required to conduct the consultation on a periodic basis

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for the utilization review agent's highest volume services subject to utilization review during the

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prior year; services subject to the highest volume of adverse determinations during the prior year;

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and for any additional services identified by the director.

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      (3) Utilization review agents shall not include in the consultations as required under

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paragraph (1) of this subdivision, any physicians or other health services providers who have

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financial relationships with the utilization review agent other than financial relationships for

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provisions of direct patient care to utilization review agent enrollees and reasonable compensation

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for consultation as required by paragraph (1) of this subdivision.

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      (4) All documentation regarding required consultations, including comments and/or

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recommendations provided by the health care providers involved in the review of the screening

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criteria, as well as the utilization review agent's action plan or comments on any

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recommendations, shall be in writing and shall be furnished to the department on request. The

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documentation shall also be provided on request to any licensed health care provider at a nominal

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cost that is sufficient to cover the utilization review agent's reasonable costs of copying and

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mailing.

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      (5) Utilization review agents may utilize non-Rhode Island licensed physicians or other

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health care providers to provide the consultation as required under paragraph (1) of this

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subdivision, when the utilization review agent can demonstrate to the satisfaction of the director

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that the related services are not currently provided in Rhode Island or that another substantial

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reason requires such approach.

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      (6) Utilization review agents whose annualized data reported to the department

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demonstrate that the utilization review agent will review fewer than five hundred (500) such

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requests for authorization may request a variance from the requirements of this section.

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     SECTION 2. This act shall take effect upon passage.

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LC01781

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO HEALTH AND SAFETY -- UTILIZATION REVIEW

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     This at would reduce the time required for the approval of prescription drug coverage and

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would provide that failure to comply within the said time would result in automatic approval of

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the request.

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     This act would take effect upon passage.

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LC01781

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