TITLE 27
Insurance

CHAPTER 27-18.9
Benefit Determination and Utilization Review Act [Effective January 1, 2018.]

SECTION 27-18.9-7


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

(a) Administrative and non-administrative appeals. The review agent shall conform to the following for the internal appeal of administrative or non-administrative, adverse benefit determinations:

(1) The review agent shall maintain and make available a written description of its appeal procedures by which either the beneficiary or the provider of record may seek review of determinations not to authorize health care services.

(2) The process established by each review agent may include a reasonable period within which an appeal must be filed to be considered and that period shall not be less than one hundred eighty (180) calendar days after receipt of the adverse benefit determination notice.

(3) During the appeal, a review agent may utilize a reconsideration process in assessing an adverse benefit determination. If utilized, the review agent shall develop a reasonable reconsideration and appeal process, in accordance with this section. For non-administrative, adverse benefit determinations, the period for the reconsideration may not exceed fifteen (15) days from the date the request for reconsideration or appeal is received. The review agent shall notify the beneficiary and/or provider of the reconsideration determination with the form and content described in § 27-18.9-6(b), as appropriate. Following the decision on reconsideration, the beneficiary and/or provider shall have a period of forty-five (45) calendar days during which the beneficiary and/or provider may request an appeal of the reconsideration decision and/or submit additional information.

(4) Prior to a final internal appeal decision, the review agent must allow the claimant to review the entire adverse determination and appeal file and allow the claimant to present evidence and/or additional testimony as part of the internal appeal process.

(5) A review agent is only entitled to request and review information or data relevant to the benefit determination and utilization review processes.

(6) The review agent shall maintain records of written adverse benefit determinations, reconsiderations, appeals and their resolution, and shall provide reports as requested by the office.

(7)(i) The review agent shall notify, in writing, the beneficiary and/or provider of record of its decision on the administrative appeal in no case later than thirty (30) calendar days after receipt of the request for the review of an adverse benefit determination for pre-service claims, and sixty (60) days for post-service claims, commensurate with 29 C.F.R. § 2560.503-1(i)(2)(ii) and (iii).

(ii) The review agent shall notify, in writing, the beneficiary and provider of record of its decision on the non-administrative appeal as soon as practical considering medical circumstances, but in no case later than thirty (30) calendar days after receipt of the request for the review of an adverse benefit determination, inclusive of the period to conduct the reconsideration, if any. The timeline for decision on appeal is paused from the date on which the determination on reconsideration is sent to the beneficiary and/or provider and restarted when the beneficiary and/or provider submits additional information and/or a request for appeal of the reconsideration decision.

(8) The review agent shall also provide for an expedited appeal process for urgent and emergent situations taking into consideration medical exigencies. Notwithstanding any other provision of this chapter, each review agent shall complete the adjudication of expedited appeals, including notification of the beneficiary and provider of record of its decision on the appeal, not later than seventy-two (72) hours after receipt of the claimant's request for the appeal of an adverse benefit determination.

(9) Benefits for an ongoing course of treatment cannot be reduced or terminated without providing advance notice and an opportunity for advance review. The review agent or health care entity is required to continue coverage pending the outcome of an appeal.

(10) A review agent may not disclose or publish individual medical records or any confidential information obtained in the performance of benefit determination or utilization review activities. A review agent shall be considered a third-party health insurer for the purposes of § 5-37.3-6(b)(6) and shall be required to maintain the security procedures mandated in § 5-37.3-4(c).

(b) Non-administrative appeals. In addition to subsection (a) of this section the utilization review agent shall conform to the following for its internal appeals adverse benefit determinations:

(1) A claimant is deemed to have exhausted the internal claims appeal process when the utilization review agent or health care entity fails to strictly adhere to all benefit determination and appeal processes with respect to a claim. In this case the claimant may initiate an external appeal or remedies under section 502(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., or other state and federal law, as applicable.

(2) No reviewer under this section, who has been involved in prior reviews or in the adverse benefit determination under appeal or who has participated in the direct care of the beneficiary, may participate in reviewing the case under appeal.

(3) All internal-level appeals of utilization review determinations not to authorize a health care service that had been ordered by a physician, dentist, or other provider shall be made according to the following:

(i) The reconsideration decision of a non-administrative, adverse benefit determination shall not be made until the utilization review agent's professional provider with the same licensure status as typically manages the condition, procedure, treatment, or requested service under discussion has spoken to, or otherwise provided for, an equivalent two-way, direct communication with the beneficiary's attending physician, dentist, other professional provider, or other qualified professional provider responsible for treatment of the beneficiary concerning the services under review.

(ii) A review agent who does not utilize a reconsideration process must comply with the peer-review obligation described in subsection (b)(3)(i) of this section as part of the appeal process.

(iii) When the appeal of any adverse benefit determination, including an appeal of a reconsideration decision, is based in whole or in part on medical judgment, including determinations with regard to whether a particular service, treatment, drug, or other item is experimental, investigational or not medically necessary or appropriate, the reviewer making the appeal decision must be appropriately trained having the same licensure status as the ordering provider or be a physician or dentist and be in the same or similar specialty as typically manages the condition. These qualifications must be provided to the claimant upon request.

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

(4) The review agent must ensure that an appropriately licensed practitioner or licensed physician is reasonably available to review the case as required under this subsection (b) and shall conform to the following:

(i) Each agency peer reviewer shall have access to and review all necessary information as requested by the agency and/or submitted by the provider(s) and/or beneficiaries;

(ii) Each agency shall provide accurate peer review contact information to the provider at the time of service, if requested, and/or prior to such service, if requested. This contact information must provide a mechanism for direct communication with the agency's peer reviewer; and

(iii) Agency peer reviewers shall respond to the provider's request for a two-way, direct communication defined in this subsection (b) as follows:

(A) For a prospective review of non-urgent and non-emergent health care services, a response within one business day of the request for a peer discussion;

(B) For concurrent and prospective reviews of urgent and emergent health care services, a response within a reasonable period of time of the request for a peer discussion; and

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

(5) The review agency will have met the requirements of a two-way, direct communication, when requested and/or as required prior to the internal level of appeal, when it has made two (2) reasonable attempts to contact the attending provider directly. Repeated violations of this section shall be deemed to be substantial violations pursuant to § 27-18.9-9 and shall be cause for the imposition of penalties under that section.

(6) For the appeal of an adverse benefit determination decision that a drug is not covered, the review agent shall complete the internal-appeal determination and notify the claimant of its determination:

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

(ii) No later than twenty-four (24) hours following the receipt of the appeal request in cases where the beneficiary is suffering from a health condition that may seriously jeopardize the beneficiary's life, health, or ability to regain maximum function or when an beneficiary is undergoing a current course of treatment using a non-formulary drug.

(iii) And if approved on appeal, coverage of the non-formulary drug must be provided for the duration of the prescription, including refills unless expedited then for the duration of the exigency.

(7) The review agents using clinical criteria and medical judgment in making utilization review decisions shall comply with the following:

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

(ii) Provide and use written clinical criteria and review procedures established according to nationally accepted standards, evidence-based medicine and protocols that are periodically evaluated and updated or other reasonable standards required by the commissioner;

(iii) Establish and employ a process to incorporate and consider local variations to national standards and criteria identified herein including without limitation, a process to incorporate input from local participating providers; and

(iv) Updated description of clinical decision criteria to be available to beneficiaries, providers, and the office upon request and readily available accessible on the health care entity or the review agent's website.

(8) The review agent shall maintain records of written, adverse benefit determination reconsiderations and appeals to include their resolution, and shall provide reports and other information as requested by the office.

History of Section.
(P.L. 2017, ch. 302, art. 5, § 5.)