1. As used in this section, unless the context otherwise requires:
a. "Adverse benefit determination" means a denial of, reduction of, termination of, or
a failure to provide or make payment for a claim for benefits which involves
medical judgment and involves the cancellation or discontinuation of coverage
that has retroactive effect. The term includes a determination based on the
requirements of an insurance company, nonprofit health services corporation, or
health maintenance organization for medical necessity, appropriateness, health
care setting, level of care, or effectiveness of a covered benefit and a
determination that a treatment is experimental or investigational. The term does
not include a denial of, reduction of, termination of, or failure to provide or make
payment related to a claimant's eligibility for benefits under the terms of
coverage.
b. "Claim for benefits" means a request for one or more benefits which is made by a
claimant in accordance with the reasonable procedure for submitting benefit
claims offered by an insurance company, nonprofit health services corporation, or
health maintenance organization. A reasonable procedure includes an external
review procedure that complies with this section.
c. "Claimant" means an individual who makes a claim for benefits under this
section.
d. "Expedited external review" means an adverse benefit determination that
involves:
(1) An admission, availability of care, a continued stay, or a health care service
for which the claimant received emergency services but has not been
discharged from the facility; or
(2) A medical condition for which the standard external review timeframes
would seriously jeopardize the life or health of the claimant or jeopardize the
claimant's ability to regain maximum function.
e. "External review" is a review of an adverse benefit determination conducted
pursuant to this section.
f. "Final external review determination" means a determination by an independent
review organization at the conclusion of an external review.
g. "Independent review organization" means an entity that conducts independent
external reviews of adverse benefit determinations.
2. An insurance company, nonprofit health services corporation, or health maintenance
organization may not deliver, issue, execute, or renew any health insurance policy,
health service contract, or evidence of coverage on an individual, group, blanket,
franchise, or association basis unless the policy, contract, or evidence of coverage
meets the minimum requirements of 42 U.S.C. 300gg-19 and complies with 29 U.S.C.
1133, 29 CFR 2560.503-1; 42 U.S.C. 300gg-19, 26 CFR 54.9815-2719T; 29 U.S.C.
1185d, 29 CFR 2590.715-2719; and 26 U.S.C. 9815, 45 CFR 147.136. The insurance
commissioner shall adopt rules as necessary to ensure compliance with this section
and the federal minimum consumer protection standards. If federal laws or rules
relating to external review are amended, repealed, or otherwise changed, the
insurance commissioner shall adopt rules that track such changes to the federal
external review rules to ensure the external review procedure set forth in this section is
substantively equivalent and parallel to the federal requirements. An external review
procedure must meet the requirement set forth in this section.
3. An external review process offered by an insurance company, nonprofit health services
corporation, or health maintenance organization pursuant to this section must include
each of the following:
a. An external review must be available to a claimant for:
(1) An adverse benefit determination involving medical necessity,
appropriateness, health care setting, level of care, or effectiveness of a
covered benefit;
(2) A determination that a treatment is experimental or investigational if it is
ensured that adequate clinical and scientific protocols are taken into account
as part of the external review for determinations involving experimental or
investigative claims for benefits; and
(3) An adverse benefit determination involving the cancellation or
discontinuation of coverage that has a retroactive effect. For purposes of
this paragraph, an adverse benefit determination does not include a denial,
a reduction, a termination, or a failure to provide or make payment related to
a claimant's eligibility for benefits under the terms of coverage.
b. An effective written notice must be provided to each claimant of the claimant's
rights related to external review of an adverse benefit determination.
c. The insurance company, nonprofit health services corporation, or health
maintenance organization may require a claimant to exhaust the internal claims
and appeals process; however, a claimant may not be required to exhaust all
internal and external claims and appeals processes if the insurance company,
nonprofit health services corporation, or health maintenance organization waives
this requirement, the claimant is considered to have exhausted the internal claims
and appeals process under applicable law, or the claimant has filed for expedited
external review. A claimant may file for an expedited external review without fully
exhausting all internal claims and appeals requirements at the same time any
internal appeal is being processed and the claimant meets the defined criteria for
requesting an expedited external review.
d. The insurance company, nonprofit health services corporation, or health
maintenance organization against which a request for external review is
submitted shall pay the cost of the independent review organization for
completing the external review. An insurance company, nonprofit health services
corporation, or health maintenance organization may require the claimant to pay
a nominal filing fee from the claimant requesting an external review under this
section. This fee may not exceed twenty-five dollars and must be refunded to the
claimant if the adverse benefit determination is reversed by the independent
review organization. A fee must be waived if payment imposes an undue hardship
on the claimant. The fees charged by an insurance company, nonprofit health
services corporation, or health maintenance organization to a claimant in any
single plan year may not exceed seventy-five dollars.
e. A minimum dollar requirement may not be imposed for a claim for benefits to
qualify for external review.
f. A claimant must have up to four months after receipt of notice of an adverse
benefit determination to request external review.
g. A requirement that the commissioner assign external review to independent
review organizations on a random basis or other method of assignment that
assures the independence and impartiality of the assignment process, such as
rotational assignment. The commissioner's process must provide for the
maintenance of a list of at least three independent review organizations that are
accredited by a nationally recognized private accrediting organization and are
qualified to conduct the external review based on the nature of the health care
service that is the subject of the review.
The commissioner may not use an independent review organization that
has a conflict of interest that influences its independence. The independent
review organization may not own or control, or be owned or controlled by, an
insurance company, a nonprofit health services corporation, a health
maintenance organization, a group health plan, the sponsor of a group health
plan, a trade association of plans or insurance companies, or a trade association
of health care providers. The independent review organization and clinical
reviewer assigned to conduct an external review may not have a material
professional, familial, or financial conflict of interest with the insurance company,
nonprofit health services corporation, or health maintenance organization or plan
that is the subject of the external review; with the claimant whose treatment is the
subject of the external review; with any officer, director, or management employee
of the insurance company, nonprofit health services corporation, or health
maintenance organization; with employees, administrator, or sponsor of the
claimant's health plan; with the health care provider or with the health care
provider's group or practice association recommending the treatment that is
subject to the external review; with the facility at which the recommended
treatment would be provided; or with the developer or manufacturer of the
principal drug, device, procedure, or other therapy being recommended and that
is the subject of the external review.
h. The claimant must be notified that the claimant is allowed up to five business
days to submit additional written information to the independent review
organization and that this information must be considered by the independent
review organization when completing the external review. Any additional
information submitted by a claimant to an independent review organization for
consideration in any external review must also be forwarded to the insurance
company, nonprofit health services corporation, or health maintenance
organization within one business day of receipt by the independent review
organization.
i. Any decision by an independent review organization through the external review
process is binding on the claimant and on the insurance company, nonprofit
health services corporation, or health maintenance organization, except to the
extent other remedies are available under state or federal law and except that the
requirement that the determination be binding does not preclude the insurance
company, nonprofit health services corporation, or health maintenance
organization from making payment on the claim for benefits or from failing to
require such payment or benefits. The insurance company, nonprofit health
services corporation, or health maintenance organization shall provide benefits,
including making payment, pursuant to the final external review decision without
delay, regardless of whether the insurance company, nonprofit health services
corporation, or health maintenance organization intends to seek judicial review of
the external review decision and unless or until there is a judicial decision
otherwise.
j. Within forty-five days of the independent review organization's receipt of the
request for external review, the independent review organization shall provide
written notice to the commissioner, the claimant, and the insurance company,
nonprofit health services corporation, or health maintenance organization of the
independent review organization's decision to uphold or reverse the adverse
benefit determination. In regard to a request for an expedited external review,
within seventy-two hours of the independent review organization's receipt of a
request for expedited review, the independent review organization shall make a
decision to uphold or reverse the adverse benefit determination and notify the
commissioner, the claimant, and the insurance company, nonprofit health
services corporation, or health maintenance organization of the determination. If
the notice by the independent review organization is not in writing, the
independent review organization shall provide written confirmation of the decision
within forty-eight hours after the date of the notice of the decision.
k. An insurance company, nonprofit health services corporation, or health
maintenance organization shall include a description of the external review
process in or attached to the policy, certificate of coverage, or other plan
documents or evidence of coverage provided to covered individuals.
l. The contract with an independent review organization to provide external review
services must require the independent review organization to maintain written
records and to make those records specifically involving an external review
available to the commissioner.
4. An insurance company, nonprofit health services corporation, or health maintenance
organization provides an effective and relevant notice in a culturally and linguistically
appropriate manner with respect to any applicable non-English language if the
insurance company, nonprofit health services corporation, or health maintenance
organization provides, upon request, a notice in any applicable non-English language
and a statement prominently displayed in any applicable non-English language clearly
indicating how to access the language services provided by the insurance company,
nonprofit health services corporation, or health maintenance organization. With
respect to an address in any United States county to which such notice is sent, an
applicable non-English language means that at least ten percent of the population
residing in the county is literate only in the same non-English language as determined
in guidance issued under federal law.