Code of Maine Rules
02 - DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION
031 - BUREAU OF INSURANCE
Chapter 850 - HEALTH PLAN ACCOUNTABILITY
Section 031-850-8 - Adverse Health Care Treatment Decisions

Universal Citation: 02 ME Code Rules ยง 031-850-8

Current through 2024-13, March 27, 2024

In addition to the requirements of Title 24-A, Chapter 34, any health carrier that provides or performs utilization review services, and any designee of the health carrier or URE that performs utilization review functions on the carrier's behalf, is subject to the requirements of this section. The requirements of this section are applicable to all "adverse health care treatment decisions" rendered by or on behalf of "carriers."

A. Corporate Oversight of Utilization Review Program

A health carrier shall be responsible for monitoring all utilization review activities carried out by or on its behalf, and for compliance with the requirements of this. The health carrier shall also ensure that, consistent with the requirements of Title 24-A M.R.S.A. §4304(1), appropriate personnel have operational responsibility for the conduct of the health carrier's utilization review program.

B. Contracting

Whenever a health carrier contracts to have a URE perform the utilization review functions required by this rule, the Superintendent shall hold the health carrier responsible for monitoring the activities of the utilization review entity with which it contracts and for ensuring that the requirements of this rule are met.

C. Written Utilization Review Program

A health carrier that provides or performs utilization review shall implement a written utilization review program that, consistent with the requirements of Title 24-A M.R.S.A. §2771(3) and this rule, shall comprehensively describe all utilization review activities and procedures, both delegated and non-delegated, applicable to any of its health plans. The utilization review program must be consistent with the requirements of this section.

D. Operational Requirements

1) A utilization review program shall use documented clinical review criteria that are based on published sound clinical evidence and which are evaluated periodically to assure ongoing efficacy. A health carrier or the carrier's designated URE may develop its own clinical review criteria or may purchase or license clinical review criteria from qualified vendors. Upon request, a health carrier or the carrier's designated URE shall make available its clinical review criteria to the Superintendent and the Commissioner of the Department of Human Services.

2) Qualified health care professionals shall administer the utilization review program and oversee review decisions. A clinical peer shall evaluate the clinical appropriateness of adverse health care treatment decisions.

3) A health carrier or the carrier's designated URE shall issue utilization review decisions in a timely manner pursuant to the requirements of subsections F, G, G-1, and H.
a) A health carrier or the carrier's designated URE shall obtain all information required to make a utilization review decision, including pertinent clinical information.

b) A health carrier or the carrier's designated URE shall have a process to ensure that utilization reviewers apply clinical review criteria consistently.

4) A health carrier or the carrier's designated URE shall routinely assess the effectiveness and efficiency of its utilization review program.

5) A health carrier's or the carrier's designated URE's data systems shall be sufficient to support utilization review program activities and to generate management reports to enable the health carrier or the carrier's designated URE to monitor and manage health care services effectively.

6) If a health carrier delegates any utilization review activities to a URE, the health carrier shall maintain adequate oversight, which shall include:
a) A written description of the URE's activities and responsibilities, including reporting requirements;

b) Evidence of formal approval of the URE program by the health carrier; and

c) A process by which the health carrier evaluates the performance of the URE.

7) A health carrier or the carrier's designated URE shall provide covered persons and participating providers with access to its review staff by a toll-free number or collect call phone line. Telephone lines must be adequately staffed to provide providers and covered persons ready access to staff performing utilization review functions.

8) When conducting utilization review, the health carrier or the carrier's designated URE shall collect only the information necessary to certify the admission, procedure or treatment, length of stay, frequency and duration of services. The requirements of this subsection shall not be construed to prevent a carrier from collecting data for quality assurance purposes.

9) Compensation to persons providing utilization review services for a health carrier or the carrier's designated URE may not be based on the quantity of adverse health care treatment decisions rendered, or otherwise include incentives for reviewers to render inappropriate review decisions.

E. Procedures for Review Decisions

1) A health carrier or the carrier's designated URE shall maintain written procedures for making utilization review, experimental/investigational treatment and preexisting condition decisions, and for notifying covered persons and providers acting on behalf of covered persons of its decisions. For purposes of this subsection, the term "covered person" includes the representative of a covered person. Prior to release of medical information to a representative of a covered person, a health carrier or the carrier's designated URE may require execution of an appropriate release authorizing the representative's access to that information. Consistent with the requirements of Title 24-A M.R.S.A. §4304(2), notification requirements under this subsection are satisfied by written notification postmarked within the time limit specified.

2) For initial determinations not involving exigent circumstances, a health carrier or the carrier's designated URE shall make the determination (whether adverse or not) and so notify the covered person and his or her provider within 72 hours or 2 businessdays, whichever is less, in accordance with the following standards:
a) If the carrier or the carrier's designated URE responds with a request for additional information, the carrier shall make a determination and so notify the covered person and his or her provider within 72 hours or 2 business days, whichever is less, after receiving the requested information.

b) If the carrier or the carrier's designated URE responds that outside consultation is necessary before making a determination, the carrier shall make a determination within 72 hours or 2 business days, whichever is less, from the time of the carrier's initial response.

c) If a carrier or the carrier's designated URE does not grant or deny a request within the timeframes required, the request is granted.

d) A provider shall make best efforts to provide all necessary information to evaluate a request, and a carrier shall make best efforts to limit requests for additional information. A carrier or the carrier's designated URE shall make a good faith effort to obtain all necessary information expeditiously, and is responsible for expeditious retrieval of necessary information in the possession of a person with whom the health carrier contracts. A health carrier or the carrier's designated URE shall comply with the notification requirements of Title 24-A M.R.S.A. §4304(2). For purposes of this section, "necessary information" includes the results of any face-to-face clinical evaluation or second opinion that may be required.

3) When exigent circumstances exist, a health carrier or the carrier's designated URE shall make the determination (whether adverse or not) and so notify the covered person and his or her provider within 24 hours after receiving the request.

4) For concurrent review determinations, a health carrier or the carrier's designated URE shall make the determination within one working day after obtaining all necessary information.
a) In the case of a determination to certify an extended stay or additional services, the carrier or the carrier's designated URE shall so notify the covered person and the provider rendering the service within one working day. The written notification shall include the number of extended days or next review date, the new total number of days or services approved, and the date of admission or initiation of services.

b) In the case of an adverse benefit determination, the carrier or the carrier's designated URE shall so notify the covered person and the provider rendering the service within one working day. The service shall be continued without liability to the covered person until the covered person has been notified of the determination.

5) For retrospective review decisions, a health carrier or the carrier's designated URE shall make the decision within 30 days after receiving all necessary information.
a) In the case of a certification, the carrier or the carrier's designated URE may notify in writing the covered person and the provider rendering the service.

b) In the case of an adverse health care treatment decision, the carrier or the carrier's designated URE shall, within 5 working days after making the adverse decision, notify in writing the provider rendering the service and the covered person. A health carrier or the carrier's designated URE shall not without adequate written notice to the covered person prior to his or her receipt of previously authorized services render an adverse decision with regard to health care services authorized pursuant to prospective review, except where fraudulent or materially incorrect information was provided to the carrier at the time prior approval was granted, and the information was relied upon by the carrier in rendering its approval.

6) A health carrier shall provide written notification of any adverse health care treatment decision, which shall include:
a) the principal reason or reasons for the decision;

b) reference to the specific plan provisions on which the decision is based;

c) information sufficient to identify the claim involved (including the date of service, the health care provider, and the claim amount if applicable), and a statement that the diagnosis code and its corresponding meaning, and the treatment code and its corresponding meaning, will be provided upon request;

d) a description of any additional material or information necessary for the covered person to perfect the claim and an explanation as to why such material or information is necessary;

e) the instructions and time limits for initiating an appeal or reconsideration of the decision;

f) if the adverse health care treatment decision is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the decision, applying the terms of the plan to the claimant's medical circumstances, or a statement that such an explanation will be provided free of charge upon request;

g) if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse health care treatment decision, either the specific rule, guideline, protocol, or other similar criterion; or a statement referring to the rule, guideline, protocol, or other similar criterion that was relied upon in making the adverse decision and explaining that a copy will be provided free of charge to the covered person upon request;

h) a phone number the covered person may call for information on and assistance with initiating an appeal or reconsideration and/or requesting clinical rationale and review criteria;

i) a description of the expedited review process applicable to claims involving exigent circumstances;

j) the availability of any applicable office of health insurance consumer assistance or ombudsman established under the federal Affordable Care Act;

k) notice of the right to file a complaint with the Bureau of Insurance after exhausting any appeals under a carrier's internal review process. In addition, an explanation of benefits (EOB) must comply with the requirements of 24-A M.R.S.A. §4303(13) and any rules adopted pursuant thereto; and l) any other information required pursuant to the federal Affordable Care Act.

7) The carrier or the carrier's designated URE shall respond expeditiously to requests for information.

8) A health carrier or the carrier's designated URE shall have written procedures to address the failure or inability of a provider or a covered person to provide all clinically relevant, necessary information for review. In cases where the provider or a covered person will not release necessary information, the health carrier or the carrier's designated URE may deny certification.

F. Requests for Reconsideration

1) In a case involving an initial health care treatment decision or a concurrent review decision, a health carrier or the carrier's designated URE shall give the provider rendering the service an opportunity to request by telephone, fax, electronically, or in writing on behalf of the covered person a reconsideration of an adverse decision by the reviewer making the adverse decision.

2) The reconsideration shall occur within one working day after the receipt of the request and shall be conducted between the provider rendering the service and the reviewer who made the adverse health care treatment decision, or between the provider rendering the service and a clinical peer of that provider, designated by the reviewer, if the reviewer who made the adverse decision cannot be available within one working day.

3) If the reconsideration process does not resolve the difference of opinion, the adverse health care treatment decision may be appealed by the covered person or the provider on behalf of the covered person. Reconsideration is not a prerequisite to a standard appeal or an expedited appeal of an adverse decision.

G. Appeals of Adverse Health Care Treatment Decisions

For purposes of this section, the term "covered person" includes the representative of a covered person.

1) Standard Appeals
a) A health carrier or the carrier's designated URE shall establish written procedures for a standard appeal of an adverse health care treatment decision. HMO enrollees shall retain the right to pursue an appeal directly with the HMO. Appeal procedures shall be available to the covered person and to the provider acting on behalf of the covered person.
i) The carrier must allow the covered person to review the claim file and to present evidence and testimony as part of the internal appeals process.

ii) The carrier must provide the covered person, free of charge, with any new or additional evidence considered, relied upon, or generated by the carrier (or at the direction of the carrier) in connection with the claim; such evidence must be provided as soon as possible and sufficiently in advance of the decision to give the covered person a reasonable opportunity to respond.

iii) Before a carrier can issue a final internal adverse benefit determination based on a new or additional rationale, the covered person must be provided with the rationale, free of charge, sufficiently in advance of the decision to give the covered person a reasonable opportunity to respond.

iv) The health carrier must provide the covered person the name, address, and telephone number of a person designated to coordinate the appeal on behalf of the health carrier.

v) The health carrier must make the rights in this subparagraph known to the covered person within 3 working days after receiving an appeal.

b) An appeal of an adverse health care treatment decision, except for a rescission determination or an initial coverage eligibility determination, shall be evaluated by an appropriate clinical peer or peers of the treating provider. The clinical peer/s shall not have been involved in the initial adverse determination, unless additional information not previously considered during the initial review is provided on appeal. The clinical peer may not be a subordinate of a clinical peer involved in the prior decision.

c) For standard appeals, the health carrier or the carrier's designated URE shall notify in writing both the covered person and the attending or ordering provider of the decision within 30 days following the request for an appeal. Additional time is permitted where the carrier or the carrier's designated URE can establish the 30-day time frame cannot reasonably be met due to the carrier's or designee's inability to obtain necessary information from a person or entity not affiliated with or under contract with the carrier. The carrier or the carrier's designated URE, shall provide written notice of the delay to the covered person and the attending or ordering provider. The notice shall explain the reasons for the delay. In such instances, decisions must be issued within 30 days after the carrier's or designee's receipt of all necessary information. An adverse health care treatment appeal decision shall contain:
i) The names, titles and qualifying credentials of the person or persons evaluating the appeal;

ii) A statement of the reviewers' understanding of the reason for the covered person's request for an appeal;

iii) Reference to the specific plan provisions upon which the decision is based.

iv) The reviewers' decision in clear terms and the clinical rationale in sufficient detail for the covered person to respond further to the health carrier's position;

v) A reference to the evidence or documentation used as the basis for the decision, including the clinical review criteria used to make the determination. The decision shall include instructions for requesting copies, free of charge, of information relevant to the claim, including any referenced evidence, documentation or clinical review criteria not previously provided to the covered person. Where a covered person had previously submitted a written request for the clinical review criteria relied upon by the health carrier or the carrier's designated URE in rendering its initial adverse decision, the decision shall include copies of any additional clinical review criteria utilized in arriving at the decision.

vi) If an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse benefit decision, either the specific rule, guideline, protocol, or other similar criterion; or a statement referring to the rule, guideline, protocol, or other similar criterion that was relied upon in making the adverse decision and explaining that a copy will be provided free of charge to the covered person upon request.

vii) Notice of any subsequent appeal rights, and the procedure and time limitation for exercising those rights. Notice of external review rights must be provided to the enrollee as required by 24-A M.R.S.A. §4312(3). A description of the process for submitting a written request for second level appeal must include the rights specified in subsection G-1.

viii) Notice of the availability of any applicable office of health insurance consumer assistance or ombudsman established under the federal Affordable Care Act.

ix) Notice of the covered person's right to contact the Superintendent's office. The notice shall contain the toll free telephone number, website address, and mailing address of the Bureau of Insurance.

x) Any other information required pursuant to the federal Affordable Care Act.

2) Expedited Appeals

A health carrier or the carrier's designated URE shall establish written procedures for the expedited review of an adverse health care treatment decision involving a situation where the time frame of the standard review procedures set forth in paragraph 1 would seriously jeopardize the life or health of a covered person or would jeopardize the covered person's ability to regain maximum function. An expedited appeal shall be available to, and may be initiated by, the covered person or the provider acting on behalf of the covered person.

a) An expedited appeal of an adverse health care treatment decision, except for a rescission determination or an initial coverage eligibility determination, shall be evaluated by an appropriate clinical peer or peers of the treating provider. The clinical peer/s shall not have been involved in the initial adverse health care treatment decision, unless additional information not previously considered during the initial review is provided on appeal. The clinical peer may not be a subordinate of a clinical peer involved in the prior decision.

b) A health carrier, or the carrier's designated URE shall provide expedited review to all requests concerning an admission, availability of care, continued stay or health care service for a covered person who has received emergency services but has not been discharged from a facility.

c) In an expedited review, all necessary information, including the health carrier's or the carrier's designated URE's decision, shall be transmitted between the health carrier or the carrier's designated URE and the covered person or the provider acting on behalf of the covered person by telephone, facsimile, electronic means or the most expeditious method available.

d) In an expedited review, a health carrier or the carrier's designated URE shall make a decision and notify the covered person and the provider acting on behalf of the covered person via telephone as expeditiously as the covered person's medical condition requires, but in no event more than 72 hours after the review is initiated. If the expedited review is a concurrent review determination of emergency services under subsection H of this section or of an initially authorized admission or course of treatment, the service shall be continued without liability to the covered person until the covered person has been notified of the decision.

e) If the initial notification was not in writing, a health carrier or the carrier's designated URE shall provide written confirmation of its decision concerning an expedited review within 2 working days after providing notification of that decision. An adverse decision shall contain the provisions specified in subparagraph 1(c) above.

A health carrier or the carrier's designated URE is not required to provide an expedited review for retrospective adverse health care treatment decisions.

G-1. Second Level Appeals of Adverse Health Care Treatment Decisions

1) A health carrier that subjects benefit decisions to utilization review or offers managed care plans shall provide the opportunity for a second level appeal to covered persons who are dissatisfied with a first level appeal decision. The covered person requesting a second level appeal has the right to appear in person before authorized representatives of the health carrier, and shall be provided adequate notice of that option by the carrier. Persons covered under individual health insurance plans must be notified of the right to request an external review without exhausting the carrier's second level appeal process. The same notice may be given to persons covered under group plans if the carrier permits them to bypass the second level of appeal. The health carrier's designated URE may fulfill the requirements of this subsection on the carrier's behalf, except that a person covered under an HMO plan may exercise his or her right to pursue the appeal directly to the HMO.

2) The carrier shall appoint a panel for each second level appeal, which shall include one or more panelists who are disinterested clinical peers of the treating provider. For purposes of this paragraph, a provider is disinterested if he or she was not involved in the prior decision, is not a subordinate of a panelist involved in the prior decision, and has no financial or other personal interest in the outcome of the review. A second level appeal decision adverse to the covered person must have the concurrence of a majority of the disinterested clinical peers on the panel.

3) Whenever a covered person has requested the opportunity to appear in person before authorized representatives of the health carrier, a health carrier's procedures for conducting a second level panel review shall include the following:
a) The review panel shall schedule and hold a review meeting within 45 days after receiving a request from a covered person for a second level review. The review meeting shall be held during regular business hours at a location reasonably accessible to the covered person. The health carrier shall offer the covered person the opportunity to communicate with the review panel, at the health carrier's expense, by conference call, video conferencing, or other appropriate technology. The covered person shall be notified in writing at least 15 days in advance of the review date. The health carrier shall not unreasonably deny a request for postponement of the review made by a covered person.

b) Upon the request of a covered person, a health carrier shall provide to the covered person all relevant information that is not confidential and privileged from disclosure to the covered person.

c) A covered person has the right to:
i) Attend the second level review;

ii) Present his or her case to the review panel;

iii) Submit supporting material both before and at the review meeting;

iv) Ask questions of any representative of the health carrier;

v) Be assisted or represented by a person of his or her choice; and

vi) Obtain his or her medical file and information relevant to the appeal free of charge upon request.

d) If the health carrier will have an attorney present to argue its case against the covered person, the carrier shall so notify the covered person at least 15 days in advance of the review, and shall advise the covered person of his or her right to obtain legal representation.

e) The covered person's right to a fair review shall not be made conditional on the covered person's appearance at the review.

f) The review panel shall issue a written decision to the covered person within 5 working days after completing the review meeting. A decision adverse to the covered person shall include the requirements set forth in subparagraph 8(G)(1)(c).

H. Emergency Services

When conducting utilization review or making a benefit determination for emergency services:

1) A health carrier shall cover emergency services necessary to screen and stabilize a covered person, and shall not require prior authorization of such services if a prudent layperson acting reasonably would have believed that an emergency medical condition existed. For purposes of this subsection, the terms "screening" and "stabilize" shall be interpreted consistent with Section 1867 of the Social Security Act at 42 U.S.C. § 1395dd. With respect to care obtained from a non-contracting provider within the service area of a managed care plan, a health carrier shall cover emergency services necessary to screen and stabilize a covered person and shall not require prior authorization of the services if a prudent layperson would have reasonably believed that use of a contracting provider would result in a delay that would worsen the emergency, or if a provision of federal, state or local law requires the use of a specific provider.

2) A health carrier shall cover emergency services if the health carrier, acting through a participating provider or other authorized representative, has authorized the provision of emergency services.

3) If a participating provider or other authorized representative of a health carrier authorizes emergency services, the health carrier shall not subsequently retract its authorization after the emergency services have been provided, or reduce payment for an item or service furnished in reliance on approval, unless the approval was based on fraudulent or materially incorrect information.

4) Coverage of emergency services shall be subject to applicable copayments, coinsurance and deductibles.

5) For immediately required post-evaluation or post-stabilization services, a health carrier shall provide access to a representative authorized to review the requested services and determine medical necessity 24 hours a day, 7 days a week, or services shall be provided without liability to the covered person until such time as an authorized representative is available.

6) Before a carrier denies benefits or reduces payment for an emergency service based on a determination of the absence of an emergency medical condition or a determination that a lower level of care was needed, the carrier shall conduct a utilization review done by a board-certified emergency physician who is licensed in this State, including a review of the covered person's medical record related to the emergency medical condition subject to dispute. If a carrier requests records related to a potential denial of benefits or payment reduction when emergency services were furnished to a covered person, a provider has an affirmative duty to respond to the carrier in a timely manner. This paragraph does not apply when a carrier makes a reduction in payment for health care services based on a contractually agreed upon adjustment.

I. Disclosure Requirements

1) A health carrier shall include a clear and reasonably comprehensive description of its utilization review procedures, including the procedures for obtaining review of adverse benefit determinations, and a statement of rights and responsibilities of covered persons with respect to those procedures in the certificate of coverage or member handbook provided to covered persons. The statement of rights shall disclose the member's right to request in writing and receive copies of any clinical review criteria utilized in arriving at any adverse health care treatment decision pertaining to the member.

2) A health carrier shall include a summary of its utilization review procedures in materials intended for prospective covered persons. Health carriers who offer managed care plans shall include utilization review procedure summaries in materials intended for prospective network providers.

3) A health carrier requiring enrollees to initiate utilization review shall print on its membership cards a toll-free telephone number to call for utilization review decisions.

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