Current through Register Vol. 56, No. 6, March
18, 2024
(a) A carrier
shall establish an appeal process whereby a covered person or a provider acting
on behalf of the covered person, with the covered person's consent, may appeal
an adverse benefit determination, except where the adverse benefit
determination was based on eligibility, including rescission, or the
application of a contract exclusion or limitation not related to medical
necessity, within 180 days of receipt of the adverse benefit
determination.
(b) Carriers shall
detail the appeal process in a writing provided to covered persons at the time
of coverage (and periodically as changes occur), upon the occurrence of an
adverse benefit determination, and upon the conclusion of each stage of the
appeal process.
(c) Carriers shall
provide a written description of the appeal process and the carrier's adverse
benefit determination to providers upon the conclusion of each stage of the
appeal process, when the provider is making the appeal on behalf of a covered
person with the covered person's consent.
(d) The carrier shall not establish nor
maintain any policies or procedures that prohibit or discourage a covered
person from discussing or exercising the right to an appeal, including the
right to designate a provider to act on behalf of the covered person in the
appeal process.
(e) For covered
persons in group health benefits plans, carriers shall establish an internal
appeal process in two stages, with the stage 1 appeal being an informal
process, and stage 2 being a formal process. For covered persons in individual
health benefits plans, the internal appeal process shall consist of a stage 1
informal process.
(f) A carrier
must provide the covered person and/or the provider acting on behalf of the
covered person, free of charge, with any new or additional evidence or
rationale, which will be relied upon, considered or utilized, or generated by
the carrier (or at the direction of the carrier) in connection with the
pre-service or post-service claim. Such evidence or rationale must be provided
as soon as possible and sufficiently in advance of the date on which the final
internal adverse benefit determination is required to be provided in order to
give the covered person or provider a reasonable opportunity to respond prior
to that date.
(g) An appeal
concerning an urgent care claim may be submitted orally or in
writing.
(h) The initial adverse
benefit determination, as well as an adverse benefit determination following a
stage 1 or stage 2 appeal, shall be culturally and linguistically appropriate
pursuant to
45 CFR
147.136(e) and shall
include:
1. Information sufficient to
identify the claim involved, including date of service, health care provider,
claim amount (if applicable) and a statement describing the availability, upon
request, of the diagnosis code and its corresponding meaning and treatment code
and its corresponding meaning. Any such request for such diagnosis and
treatment information following an initial adverse benefit determination shall
be responded to as soon as practicable, and the request itself shall not be
considered a request for a stage 1, stage 2 or stage 3 appeal;
2. The reason(s) for the adverse benefit
determination, including denial code and corresponding meaning, as well as a
description of the standard used by the carrier in the denial; and
3. Information regarding the availability and
contact information for the consumer assistance program at the Department of
Banking and Insurance, which assists covered persons with claims, internal
appeals and external appeals, which shall include the address and telephone
number at 11:24A-3.6(b).
(i) A carrier shall provide
continued coverage of an ongoing course of treatment pending the outcome of a
stage 1 internal appeal, a stage 2 internal appeal and an external
appeal.
(j) Carriers shall provide
in stage 1 for a covered person (or his or her designated provider if the
covered person has consented to having a provider act in his or her behalf) to
have an opportunity to speak, regarding an adverse benefit determination, with
the carrier's medical director, or the medical director's designee who rendered
the adverse benefit determination.
1. Stage 1
appeals shall be concluded as soon as possible in accordance with the medical
exigencies of the case, but in no event shall exceed:
i. Seventy-two hours in the case of an appeal
from an adverse benefit determination regarding urgent or emergency care, an
admission, availability of care, continued stay and health care services for
which the claimant received emergency services but has not been discharged from
a facility; and
ii. Ten calendar
days in the case of all other appeals.
2. At the conclusion of stage 1, the carrier
shall include a written explanation of the covered person's right to file a
stage 2 appeal for persons covered by a group health benefits plan, or to file
an appeal with the Independent Health Care Appeals Program for persons covered
by an individual health benefits plan, including the applicable time limits for
filing the appeal, and to whom the stage 2 appeal should be addressed for
persons covered by group health benefits plans or the form required to initiate
an appeal with the Independent Health Care Appeals Program for persons covered
by an individual health benefits plan.
(k) Carriers shall provide in stage 2 appeals
for a covered person (or the covered person's designated provider, if the
covered person has consented to have a provider act in his or her behalf) to
pursue his or her appeal before a panel of physicians and/or other providers
selected by the carrier who have not been involved in the adverse benefit
determination at issue.
1. The panel shall
have access to consultant providers who are trained or who practice in the same
specialty as would typically manage the case at issue, or such other licensed
provider as may be mutually agreed upon by the parties. The consulting
provider(s) shall not have been involved in the adverse benefit determination
at issue.
2. The carrier shall send
to the covered person (or designated provider if the covered person has
consented to having a provider act in his or her behalf) an acknowledgment of
the filing of a stage 2 appeal in writing within no more than 10 business days
of receipt by the carrier of the appeal.
3. The carrier shall conclude the stage 2
appeal as soon as possible after receipt of the appeal by the carrier in
accordance with the medical exigencies of the case, but in no event shall the
time to conclude the stage 2 appeal exceed 72 hours in the case of appeals of
determinations regarding urgent or emergent care, an admission, availability of
care, continued stay and health care services for which the claimant received
emergency services but has not been discharged from a facility, and which in no
event shall exceed 20 business days in the case of all other appeals.
4. In the event the stage 2 appeal results in
a denial, the carrier shall provide the covered person and/or provider, as
appropriate, with written notification of the denial and the reasons therefor
together with a written notification of his or her right to proceed to an
appeal through the Independent Health Care Appeals Program, including:
i. Specific instructions as to how the
covered person and/or provider, as appropriate, may pursue such an appeal;
and
ii. The form(s) required to
initiate such an appeal.
(l) A covered person and/or
provider shall be relieved of his or her obligation to complete the carrier's
internal review process and may, at his or her option, proceed directly to the
external appeals process set forth at
11:24A-3.6 if:
1. The carrier fails to comply with any of
the deadlines for completion of the internal adverse benefit determination
appeals set forth in this section unless the carrier's violation does not
cause, and is not likely to cause, prejudice or harm to the covered person
and/or provider, so long as the carrier demonstrates that the violation was for
good cause or due to matters beyond the control of the carrier and that the
violation occurred in the context of an ongoing, good faith exchange of
information between the carrier and the covered person and/or provider, and is
not reflective of a pattern or practice of non-compliance by the carrier.
i. The covered person and/or provider may
request a written explanation of the violation from the carrier, and the
carrier shall provide such explanation of the violation within 10 days,
including a specific description of its bases, if any, for asserting that the
violation should not cause the internal claims and appeals process to be deemed
exhausted.
ii. If an external
reviewer or a court rejects the covered person's and/or provider's request for
immediate review on the basis that the carrier met the standards for the
exception set forth in this paragraph, the covered person and/or provider has
the right to resubmit and pursue the internal appeal of the claim. In such a
case, within a reasonable time after the external reviewer or court rejects the
claim for immediate review, not to exceed 10 days, the carrier shall provide
the covered person and/or provider with notice of the opportunity to resubmit
and pursue the internal appeal. The time period for refiling the claim shall
begin to run upon the covered person's and/or provider's receipt of such
notice;
2. The carrier
for any reason expressly waives its rights to an internal review of any appeal;
or
3. The covered person and/or
provider has applied for expedited external review at the same time as applying
for an expedited internal appeal.
