Current through Register Vol. 50, No. 3, March 20, 2024
A. For purposes of
§1961, "authorized representative" is authorized to act as the covered persons
personal representative within the meaning of
45
CFR 164.502(g) promulgated
by the secretary of the U.S. Department of Health and Human Services under the
administrative simplification provisions of the Health Insurance Portability
and Accountability Act and means the following:
1. a person to whom a covered person has
given express written consent to represent the covered person in an external
review;
2. a person authorized by
law to provide substituted consent for a covered person; or
3. a family member of the covered person or
the covered persons treating health care professional only when the covered
person is unable to provide consent.
B. If an insurer determines that the benefit
trigger of a long-term care insurance policy has not been met, it shall provide
a clear, written notice to the insured and the insureds authorized
representation, if applicable, of all of the following:
1. the reason that the insurer determined
that the insureds benefit trigger has not been met;
2. the insureds right to internal appeal in
accordance with §1961. C, and the right to submit new or additional information
relating to the benefit trigger denial with the appeal request; and
3. the insureds right, after exhaustion of
the insurers internal appeal process, to have the benefit trigger determination
reviewed under the independent review process in accordance with §1961.
D.
C. Internal Appeal.
The insured or the insureds authorized representative may appeal the insurers
adverse benefit trigger determination by sending a written request to the
insurer, along with any additional supporting information, within 120 calendar
days after the insured and the insureds authorized representative, if
applicable, receives the insurers benefit determination notice. The internal
appeal shall be considered by an individual or group of individuals designated
by the insurer, provided that the individual or individuals making the internal
appeal decision may not be the same individual or individuals who made the
initial benefit determination. The internal appeal shall be completed and
written notice of the internal appeal decision shall be sent to the insured and
the insureds authorized representative, if applicable, within 30 calendar days
of the insurers receipt of all necessary information upon which a final
determination can be made.
1. If the insurers
original determination is upheld upon internal appeal, the notice of the
internal appeal decision shall describe any additional internal appeal rights
offered by the insurer. Nothing herein shall require the insurer to offer any
internal appeal rights other than those described in §1961. C.
2. If the insurers original determination is
upheld after the internal appeal process has been exhausted, and new or
additional information has not been provided to the insurer, the insurer shall
provide a written description of the insureds right to request an independent
review of the benefit determination as described in §1961. D to the insured and
the insureds authorized representative, if applicable.
3. As part of the written description of the
insureds right to request an independent review, an insurer shall include the
following, or substantially equivalent, language: "We have determined that the
benefit eligibility criteria ("benefit trigger") of your [policy] [certificate]
has not been met. You may have the right to an independent review of our
decision conducted by long-term care professionals who are not associated with
us. Please send a written request for independent review to us at [address].
You must inform us, in writing, of your election to have this decision reviewed
within 120 days of receipt of this letter. Listed below are the names and
contact information of the independent review organizations approved by your
state insurance commissioners office to conduct long-term care insurance
benefit eligibility reviews. If you wish to request an independent review,
please choose one of the listed organizations and include its name with your
request for independent review. If you elect independent review but do not
choose an independent review organization with your request, we will choose one
of the independent review organizations for you and refer the request for
independent review to it."
4. If
the insurer does not believe the benefit trigger decision is eligible for
independent review, the insurer shall inform the insured and the insureds
authorized representative, if applicable, and include in the notice the reasons
for its determination of independent review ineligibility.
5. The appeal process described in §1961. C
is not deemed to be a "new service or provider" as referenced in §1951,
Availability of New Services or Providers, and therefore does not trigger the
notice requirements of §1951.
D. Independent Review of Benefit Trigger
Determination
1. Request. The insured or the
insureds authorized representative may request an independent review of the
insureds benefit trigger determination after the internal appeal process
outlined in §1961. C has been exhausted. A written request for independent
review may be made by the insured or the insureds authorized representative to
the insurer within 120 calendar days after the insurers written notice of the
final internal appeal decision is received by the insured and the insureds
authorized representative, if applicable.
2. Cost. The cost of the independent review
shall be borne by the insurer.
3.
Independent Review Process
a. Within five
business days of reviewing a written request for independent review, the
insurer shall refer the request to the independent review organization that the
insured or the insureds authorized representative has chosen from the list of
approved organizations the insurer has provided to the insured. If the insured
or the insureds authorized representative does not choose an approved
independent review organization to perform the review, the insurer shall choose
an independent review organization approved by the state. The insurer shall
vary its selection of authorized independent review organizations on a rotating
basis.
b. The insurer shall refer
the request for independent review of a benefit trigger determination to an
independent review organization subject to the following:
i. the independent review organization shall
be on a list of approved independent review organizations that satisfy the
requirements of a qualified long-term care insurance independent review
organization contained in §1961;
ii. the independent review organization shall
not have any conflicts of interest with the insured, the insureds authorized
representative, if applicable, or the insurer; and
iii. such review shall be limited to the
information or documentation provided to and considered by the insurer in
making its determination, including any information or documentation considered
as part of the internal appeal process.
c. If the insured or the insureds authorized
representative has new or additional information not previously provided to the
insurer, whether submitted to the insurer or the independent review
organization, such information shall first be considered in the internal review
process, as set forth in §1961. C.
i. While
this information is being reviewed by the insurer, the independent review
organization shall suspend its review and the time period for review is
suspended until the insurer completes its review.
ii. The insurer shall complete its review of
the information and provide written notice of the results of the review to the
insured and the insureds authorized representative, if applicable, and the
independent review organization within five business days of the insurers
receipt of such new or additional information.
iii. If the insurer maintains its denial
after such review, the independent review organization shall continue its
review and render its decision within the time period specified in §1961. D.3.i
below. If the insurer overturns its decision following its review, the
independent review request shall be considered withdrawn.
d. The insurer shall acknowledge in writing
to the insured and the insureds authorized representative, if applicable, that
the request for independent review has been received, accepted, and forwarded
to an independent review organization for review. Such notice will include the
name and address of the independent review organization.
e. Within five business days of receipt of
the request for independent review, the independent review organization
assigned pursuant to §1961. D.3 shall notify the insured and the insureds
authorized representative, if applicable, and the insurer that it has accepted
the independent review request and identify the type of licensed health care
professional assigned to the review. The assigned independent review
organization shall include in the notice a statement that the insured or the
insureds authorized representative may submit in writing to the independent
review organization within seven days following the date of receipt of the
notice of additional information and supporting documentation that the
independent review organization should consider when conducting its
review.
f. The independent review
organization shall review all of the information and documents received
pursuant to §1961. D.3.e that has been provided to the independent review
organization. The independent review organization shall provide copies of any
documentation or information provided by the insured or the insureds authorized
representative to the insurer for its review, if it is not part of the
information or documentation submitted by the insurer to the independent review
organization. The insurer shall review the information and provide its analysis
of the new information in accordance with the §1961. D.3.h.
g. The insured or the insureds authorized
representative may submit, at any time, new or additional information not
previously provided to the insurer but pertinent to the benefit trigger denial.
The insurer shall consider such information and affirm or overturn its benefit
trigger determination. If the insurer affirms its benefit trigger
determination, the insurer shall promptly provide such new or additional
information to the independent review organization for its review, along with
the insurers analysis of such information.
h. If the insurer overturns its benefit
trigger determination:
i. the insurer shall
provide notice to the independent review organization and the insured and the
insureds authorized representative, if applicable, of its decision;
and
ii. the independent review
process shall immediately cease.
i. The independent review organization shall
provide to the insured and the insureds authorized representative, if
applicable, and the insurer written notice of its decision, within 30 calendar
days from receipt of the referral referenced in §1961. D.3.b. If the
independent review organization overturns the insurers decision, it shall:
i. establish the precise date within the
specific period of time under review that the benefit trigger was deemed to
have been met;
ii. specify the
specific period of time under review for which the insurer declined eligibility
but during which the independent review organization deemed the benefit trigger
to have been met; and
iii. for
tax-qualified long-term care insurance contracts, provide a certification (made
only by a licensed health care practitioner as defined in section 7702B(c)(4)
of the Internal Revenue Code) that the insured is a
chronically ill individual.
j. The decision of the independent review
organization with respect to whether the insured met the benefit trigger will
be final and binding on the insurer.
k. The independent review organizations
determination shall be used solely to establish liability for benefit trigger
decisions and is intended to be admissible in any proceeding only to the extent
it establishes the eligibility of benefits payable.
l. Nothing in
§1961 shall restrict the insureds right
to submit a new request for benefit trigger determination after the independent
review decision, should the independent review organization uphold the insurers
decision.
m. The insurance
department shall utilize the criteria set forth in §1969. H, Appendix H,
Guidelines for Long-Term Care Independent Review Entities, in certifying or
approving entities to review long-term care insurance benefit trigger
decisions.
n. The commissioner
shall maintain and periodically update a list of approved independent review
organizations.
E. Approval of Long-Term Care Insurance
Independent Review Organizations. The commissioner shall approve a qualified
long-term care insurance independent review organization, provided the
independent review organization demonstrates to the satisfaction of the
commissioner that it is unbiased and meets the following qualifications.
1. Have on staff, or contract with, a
qualified and licensed health care professional in an appropriate field for
determining an insureds functional or cognitive impairment (e.g. physical
therapy, occupational therapy, neurology, physical medicine, and
rehabilitation) to conduct the review.
2. Neither it nor any of its licensed health
care professionals may, in any manner, be related to or affiliated with an
entity that previously provided medical care to the insured.
3. Utilize a licensed health care
professional who is not an employee of the insurer or related in any manner to
the insured.
4. Neither it nor its
licensed health care professional who conducts the reviews may receive
compensation of any type that is dependent on the outcome of the
review.
5. Be state approved to
conduct such reviews if the state requires such approvals.
6. Provide a description of the fees to be
charged by it for independent reviews of a long-term care insurance benefit
trigger decision. Such fees shall be reasonable and customary for the type of
long-term care insurance benefit trigger decision under review.
7. Provide the name of the medical director
or health care professional responsible for the supervision and oversight of
the independent review procedure.
8. Have on staff, or contract with, a
licensed health care practitioner, as defined by Section 7702B(c)(4) of the
Internal Revenue Code of 1986, as amended, who is qualified to certify that an
individual is chronically ill for purposes of a qualified long-term care
insurance contract.
F.
Maintenance of Records and Reporting Obligations by Independent Review
Organizations. Each approved independent review organization shall comply with
the following:
1. maintain written
documentation establishing the date it receives a request for independent
review, the date each review is conducted, the resolution, the date such
resolution was communicated to the insurer and the insured, the name and
professional status of the reviewer conducting such review in an easily
accessible and retrievable format for the year in which it received the
information, plus two calendar years;
2. be able to document measures taken to
appropriately safeguard the confidentiality of such records and prevent
unauthorized use and disclosures in accordance with applicable federal and
state law;
3. report annually to
the commissioner, by June 30, in the aggregate and for each long-term care
insurer all of the following:
a. the total
number of requests received for independent review of long-term care benefit
trigger decisions;
b. the total
number of reviews conducted and the resolution of such reviews (i.e., the
number of reviews which upheld or overturned the long-term care insurers
determination that the benefit trigger was not met);
c. the number of reviews withdrawn prior to
review;
d. the percentage of
reviews conducted within the prescribed timeframe set forth in §1961. D.3.i;
and
e. such other information the
commissioner may require.
4. Report immediately to the commissioner any
change in its status which would cause it to cease meeting any of the
qualifications required of an independent review organization performing
independent reviews of long-term care benefit trigger decisions.
G. Additional Rights. Nothing
contained in this Section shall limit the ability of an insurer to assert any
rights an insurer may have under the policy related to:
1. an insureds misrepresentation;
2. changes in the insureds benefit
eligibility; and
3. terms,
conditions, and exclusions of the policy, other than failure to meet the
benefit trigger.
H.
Applicability. The requirements of
§1961 apply to a benefit trigger
request made under a long-term care insurance policy on or after July 1,
2018.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
22:1186(A),
22:1186(E),
22:1188(C),
22:1189,
and
22:1190.