Current through Register No. 12, March 21, 2024
(a) For purposes of
this section, "authorized representative" is authorized to act as the covered
person's personal representative within the meaning of
45
CFR 164.502(g) promulgated
by the Secretary 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 person's 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 insured's authorized
representative, if applicable, of all of the following:
(1) The reason that the insurer determined
that the insured's benefit trigger has not been met;
(2) The insured's right to internal appeal in
accordance with subsection (c), and the right to submit new or additional
information relating to the benefit trigger denial with the appeal request;
and
(3) The insured's right, after
exhaustion of the insurer's internal appeal process to have the benefit trigger
determination reviewed under the independent review process in accordance with
subsection (d).
(c)
Internal Appeal. The insured or the insured's authorized representative may
appeal the insurer's 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 insured's authorized
representative, if applicable, receives the insurer's 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 insured's authorized representative, if applicable,
within 30 calendar days of the insurer's receipt of all necessary information
upon which a final determination can be made.
(1) If the insurer's 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 this subsection.
(2) If the insurer's 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 insured's right to request an independent
review of the benefit determination as described in subsection (d) to the
insured and the insured's authorized representative, if applicable.
(3) As part of the written description of the
insured's 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 or
certified by your state insurance commissioner's 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 for 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 insured's authorized representative, if applicable,
and the commissioner in writing and include in the notice the reasons for its
determination of independent review ineligibility.
(5) The appeal process described in
subsection (c) is not deemed to be a 'new service or provider' as referenced in
Ins
3601.25, and therefore does not trigger the notice
requirements of that section.
(d) Independent Review of Benefit Trigger
Determination.
(1) Request. The insured or the
insured's authorized representative may request an independent review of the
insurer's benefit trigger determination after the internal appeal process
outlined in subsection (c) has been exhausted. A written request for
independent review may be made by the insured or the insured's authorized
representative to the insurer within 120 calendar days after the insurer's
written notice of the final internal appeal decision is received by the insured
and the insured's authorized representative, if applicable.
(2) Cost. The cost of the independent review
shall be borne by the insurer.
(3)
Independent Review Process.
a. Within 5
business days of receiving a written request for independent review, the
insurer shall refer the request to the independent review organization that the
insured or the insured's authorized representative has chosen from the list of
certified or approved organizations the insurer has provided to the insured. If
the insured or the insured's authorized representative does not choose an
approved independent review organization to perform the review, the insurer
shall choose an independent review organization approved or certified 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:
1.
The independent review organization shall be on a list of certified or approved
independent review organizations that satisfy the requirements of a qualified
long-term care insurance independent review organization contained in this
section;
2. The independent review
organization shall not have any conflicts of interest with the insured, the
insured's authorized representative, if applicable, or the insurer;
and
3. 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 insured's 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 subsection (c).
1.
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.
2. The insurer shall complete its review of
the information and provide written notice of the results of the review to the
insured and the insured's authorized representative, if applicable, and the
independent review organization within 5 business days of the insurer's receipt
of such new or additional information.
3. 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 subparagraph (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 insured's authorized representative, if applicable, and
the commissioner 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 5 business
days of receipt of the request for independent review, the independent review
organization assigned pursuant to this paragraph shall notify the insured and
the insured's authorized representative, if applicable, the insurer and the
commissioner 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 insured's authorized representative may
submit in writing to the independent review organization within 7 days
following the date of receipt of the notice 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 subparagraph
(e) that has been provided to the independent review organization. The
independent review organization shall provided copies of any documentation or
information provided by the insured or the insured's 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 subparagraph (h).
g. The insured or the insured's 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 insurer's analysis of such information.
h. If the insurer overturns its benefit
trigger determination:
1. The insurer shall
provide notice to the independent review organization and the insured and the
insured's authorized representative, if applicable, and the commissioner of its
decision; and
2. The independent
review process shall immediately cease.
i. The independent review organization shall
provide the insured and the insured's authorized representative, if applicable,
the insurer and the commissioner with written notice of its decision, within 30
calendar days from receipt of the referral referenced in paragraph (3)(b). If
the independent review organization overturns the insurer's decision, it shall:
1. Establish the precise date within the
specific period of time under review that the benefit trigger was deemed to
have been met;
2. 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
3. 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 organization's
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 this section shall restrict the
insured's right to submit a new request for benefit trigger determination after
the independent review decision, should the independent review organization
uphold the insurer's decision.
m.
The insurance department shall utilize the criteria set forth in 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) Certification of Long-Term Care Insurance
Independent Review Organizations. The commissioner shall certify or 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 insured's 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 or certified to conduct
such reviews if the state requires such approvals or certifications.
(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 certified 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 2 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 1, in the aggregate and for each long-term care
insurer of 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 insurer's
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 subsection
(c)(3)(1); and
(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 insured's
misrepresentation;
(2) Changes in
the insured's benefit eligibility; and
(3) Terms, conditions, and exclusions of the
policy, other than failure to meet the benefit trigger.
(h) Applicability. The requirements of this
rule apply to a benefit trigger request made on or after the adoption of this
rule under a long-term care insurance policy.
(i) Conflict with Other Laws. The provisions
of this section supersede any other external review requirements found in
RSA
420-J:5-a,
RSA
420-J:5-b;
RSA
420-J:5-c and Ins 2703.
#8036, eff 5-1-04; ss by #10154, eff 6-25-12 (from
Ins
3601.27 )
The amended
version of this section by
New
Hampshire Register Volume 35, Number 10, eff.2/13/2015 is not yet
available.