§ 44-1310 — Review of denial of coverage for service or coverage determined experimental or investigational; external review; expedited external review; director; duties; health carrier; duties; notice of initial determination; contents; appeal; clinical reviewer; duties; independent review organization; powers; duties; decision; notice; contents

Nebraska § 44-1310

• Jurisdiction: Nebraska
• Ch. 44: Insurance

Text

(1)(a) Within
four months after the date of receipt of a notice of an adverse determination
or final adverse determination pursuant to section 44-1305 that involves a
denial of coverage based on a determination that the health care service or
treatment recommended or requested is experimental or investigational, a covered
person or the covered person's authorized representative may file a request
for external review with the director.
(b)(i) A covered
person or the covered person's authorized representative may make an oral
request for an expedited external review of the adverse determination or final
adverse determination pursuant to subdivision (1)(a) of this section if the
covered person's treating physician certifies, in writing, that the recommended
or requested health care service or treatment that is the subject of the request
would be significantly less effective if not promptly initiated.
(ii) Upon receipt
of a request for an expedited external review, the director shall immediately
notify the health carrier.
(iii)(A) Upon notice of the request for expedited
external review, the health carrier shall immediately determine whether the
request meets the reviewability requirements of subdivision (2)(b) of this
section. The health carrier shall immediately notify the director and the
covered person and, if applicable, the covered person's authorized representative
of its eligibility determination.
(B) The director may specify the form for the health
carrier's notice of initial determination under subdivision (1)(b)(iii)(A)
of this section and any supporting information to be included in the notice.
(C) The notice
of initial determination under subdivision (1)(b)(iii)(A) of this section
shall include a statement informing the covered person and, if applicable,
the covered person's authorized representative that a health carrier's initial
determination that the external review request is ineligible for review may
be appealed to the director.
(iv)(A) The director may determine that a request
is eligible for external review under subdivision (2)(b) of this section notwithstanding
a health carrier's initial determination that the request is ineligible and
require that it be referred for external review.
(B) In making a determination
under subdivision (1)(b)(iii)(A) of this section, the director's decision
shall be made in accordance with the terms of the covered person's health
benefit plan and shall be subject to all applicable provisions of the Health
Carrier External Review Act.
(v) Upon receipt of the notice that the expedited
external review request meets the reviewability requirements of subdivision
(2)(b) of this section, the director shall immediately assign an independent
review organization to review the expedited request from the list of approved
independent review organizations compiled and maintained by the director pursuant
to section 44-1312 and notify the health carrier of the name of the assigned
independent review organization.
(vi) At the time the health carrier receives the notice
of the assigned independent review organization pursuant to subdivision (1)(b)(v)
of this section, the health carrier or its designee utilization review organization
shall provide or transmit all necessary documents and information considered
in making the adverse determination or final adverse determination to the
assigned independent review organization electronically or by telephone or
facsimile or any other available expeditious method.
(2)(a) Except for a request
for an expedited external review made pursuant to subdivision (1)(b) of this
section, within one business day after the date of receipt of the request
the director receives a request for an external review, the director shall
notify the health carrier.
(b) Within five business days following the date of
receipt of the notice sent pursuant to subdivision (2)(a) of this section,
the health carrier shall conduct and complete a preliminary review of the
request to determine whether:
(i) The individual is or was a covered person in the
health benefit plan at the time that the health care service or treatment
was recommended or requested or, in the case of a retrospective review, was
a covered person in the health benefit plan at the time that the health care
service or treatment was provided;
(ii) The recommended or requested health care service
or treatment that is the subject of the adverse determination or final adverse
determination:
(A)
Is a covered benefit under the covered person's health benefit plan except
for the health carrier's determination that the service or treatment is experimental
or investigational for a particular medical condition; and
(B) Is not explicitly
listed as an excluded benefit under the covered person's health benefit plan
with the health carrier;
(iii) The covered person's treating physician has
certified that one of the following situations is applicable:
(A) Standard health
care services or treatments have not been effective in improving the condition
of the covered person;
(B) Standard health care services or treatments are
not medically appropriate for the covered person; or
(C) There is no available
standard health care service or treatment covered by the health carrier that
is more beneficial than the recommended or requested health care service or
treatment described in subdivision (2)(b)(iv) of this section;
(iv) The covered
person's treating physician:
(A) Has recommended a health care service or treatment
that the physician certifies, in writing, is likely to be more beneficial
to the covered person, in the physician's opinion, than any available standard
health care service or treatment; or
(B) Who is a licensed, board-certified or board-eligible
physician qualified to practice in the area of medicine appropriate to treat
the covered person's condition, has certified in writing that scientifically
valid studies using accepted protocols demonstrate that the health care service
or treatment requested by the covered person that is the subject of the adverse
determination or final adverse determination is likely to be more beneficial
to the covered person than any available standard health care service or treatment;
(v) The covered
person has exhausted the health carrier's internal grievance process as set
forth in the Health Carrier Grievance Procedure Act unless the covered person
is not required to exhaust the health carrier's internal grievance process
pursuant to section 44-1307 ; and
(vi) The covered person has provided all the information
and forms required by the director that are necessary to process an external
review, including the release form provided under subsection (2) of section 44-1305 .
(3)(a)
Within one business day after completion of the preliminary review, the health
carrier shall notify the director and the covered person and, if applicable,
the covered person's authorized representative in writing whether the request
is complete and the request is eligible for external review.
(b) If the request:
(i) Is not complete,
the health carrier shall inform, in writing, the director and the covered
person and, if applicable, the covered person's authorized representative
and include in the notice what information or materials are needed to make
the request complete; or
(ii) Is not eligible for external review, the health
carrier shall inform the covered person, the covered person's authorized representative,
if applicable, and the director in writing and include in the notice the reasons
for its ineligibility.
(c)(i) The director may specify the form for the health
carrier's notice of initial determination under subdivision (3)(b) of this
section and any supporting information to be included in the notice.
(ii) The notice
of initial determination provided under subdivision (3)(b) of this section
shall include a statement informing the covered person and, if applicable,
the covered person's authorized representative that a health carrier's initial
determination that the external review request is ineligible for review may
be appealed to the director.
(d)(i) The director may determine that a request is
eligible for external review under subdivision (2)(b) of this section notwithstanding
a health carrier's initial determination that the request is ineligible and
require that it be referred for external review.
(ii) In making a determination
under subdivision (3)(d)(i) of this section, the director's decision shall
be made in accordance with the terms of the covered person's health benefit
plan and shall be subject to all applicable provisions of the Health Carrier
External Review Act.
(e) Whenever a request for external review is determined
eligible for external review, the health carrier shall notify the director
and the covered person and, if applicable, the covered person's authorized
representative.
(4)(a)
Within one business day after the receipt of the notice from the health carrier
that the external review request is eligible for external review pursuant
to subdivision (1)(b)(iv) of this section or subdivision (3)(e) of this section,
the director shall:
(i) Assign an independent review organization to conduct
the external review from the list of approved independent review organizations
compiled and maintained by the director pursuant to section 44-1312 and notify
the health carrier of the name of the assigned independent review organization;
and
(ii)
Notify in writing the covered person and, if applicable, the covered person's
authorized representative of the request's eligibility and acceptance for
external review.
(b)
The director shall include in the notice provided to the covered person and,
if applicable, the covered person's authorized representative a statement
that the covered person or the covered person's authorized representative
may submit in writing to the assigned independent review organization within
five business days following the date of receipt of the notice provided pursuant
to subdivision (4)(a) of this section additional information that the independent
review organization shall consider when conducting the external review. The
independent review organization may accept and consider additional information
submitted after five business days.
(c) Within one business day after the receipt of the
notice of assignment to conduct the external review pursuant to subdivision
(4)(a) of this section, the assigned independent review organization shall:
(i) Select one
or more clinical reviewers, as it determines is appropriate, pursuant to subdivision
(4)(d) of this section to conduct the external review; and
(ii) Based upon
the opinion of the clinical reviewer, or opinions if more than one clinical
reviewer has been selected to conduct the external review, make a decision
to uphold or reverse the adverse determination or final adverse determination.
(d)(i) In selecting
clinical reviewers pursuant to subdivision (4)(c)(i) of this section, the
assigned independent review organization shall select physicians or other
health care professionals who meet the minimum qualifications described in
section 44-1313 and, through clinical experience in the past three years,
are experts in the treatment of the covered person's condition and knowledgeable
about the recommended or requested health care service or treatment.
(ii) Neither the
covered person, the covered person's authorized representative, if applicable,
nor the health carrier shall choose or control the choice of the physicians
or other health care professionals to be selected to conduct the external
review.
(e)
In accordance with subsection (8) of this section, each clinical reviewer
shall provide a written opinion to the assigned independent review organization
on whether the recommended or requested health care service or treatment should
be covered.
(f)
In reaching an opinion, a clinical reviewer is not bound by any decisions
or conclusions reached during the health carrier's utilization review process
as set forth in the Utilization Review Act or the health carrier's internal
grievance process as set forth in the Health Carrier Grievance Procedure Act.
(5)(a) Within
five business days after the date of receipt of the notice provided pursuant
to subdivision (4)(a) of this section, the health carrier or its designee
utilization review organization shall provide to the assigned independent
review organization the documents and any information considered in making
the adverse determination or the final adverse determination.
(b) Except as
provided in subdivision (5)(c) of this section, failure by the health carrier
or its designee utilization review organization to provide the documents and
information within the time specified in subdivision (5)(a) of this section
shall not delay the conduct of the external review.
(c)(i) If the health carrier
or its designee utilization review organization has failed to provide the
documents and information within the time specified in subdivision (5)(a)
of this section, the assigned independent review organization may terminate
the external review and make a decision to reverse the adverse determination
or final adverse determination.
(ii) Immediately upon making the decision under subdivision
(5)(c)(i) of this section, the independent review organization shall notify
the covered person, the covered person's authorized representative, if applicable,
the health carrier, and the director.
(6)(a) Each clinical reviewer selected pursuant to
subsection (4) of this section shall review all of the information and documents
received pursuant to subsection (5) of this section and any other information
submitted in writing by the covered person or the covered person's authorized
representative pursuant to subdivision (4)(b) of this section.
(b) Upon receipt
of any information submitted by the covered person or the covered person's
authorized representative pursuant to subdivision (4)(b) of this section,
within one business day after the receipt of the information, the assigned
independent review organization shall forward the information to the health
carrier.
(7)(a)
Upon receipt of the information required to be forwarded pursuant to subdivision
(6)(b) of this section, the health carrier may reconsider its adverse determination
or final adverse determination that is the subject of the external review.
(b) Reconsideration
by the health carrier of its adverse determination or final adverse determination
pursuant to subdivision (7)(a) of this section shall not delay or terminate
the external review.
(c) The external review may be terminated only if
the health carrier decides, upon completion of its reconsideration, to reverse
its adverse determination or final adverse determination and provide coverage
or payment for the recommended or requested health care service or treatment
that is the subject of the adverse determination or final adverse determination.
(d)(i) Immediately
upon making the decision to reverse its adverse determination or final adverse
determination as provided in subdivision (7)(c) of this section, the health
carrier shall notify the covered person, the covered person's authorized representative,
if applicable, the assigned independent review organization, and the director
in writing of its decision.
(ii) The assigned independent review organization
shall terminate the external review upon receipt of the notice from the health
carrier sent pursuant to subdivision (7)(d)(i) of this section.
(8)(a) Except
as provided in subdivision (8)(c) of this section, within twenty days after
being selected in accordance with subsection (4) of this section to conduct
the external review, each clinical reviewer shall provide an opinion to the
assigned independent review organization pursuant to subsection (9) of this
section on whether the recommended or requested health care service or treatment
should be covered.
(b)
Except for an opinion provided pursuant to subdivision (8)(c) of this section,
each clinical reviewer's opinion shall be in writing and include the following
information:
(i)
A description of the covered person's medical condition;
(ii) A description
of the indicators relevant to determining whether there is sufficient evidence
to demonstrate that the recommended or requested health care service or treatment
is more likely than not to be beneficial to the covered person than any available
standard health care service or treatment and the adverse risk of the recommended
or requested health care service or treatment would not be substantially increased
over that of available standard health care service or treatment;
(iii) A description
and analysis of any medical or scientific evidence considered in reaching
the opinion;
(iv)
A description and analysis of any evidence-based standard; and
(v) Information
on whether the reviewer's rationale for the opinion is based on subdivision
(9)(e)(i) or (ii) of this section.
(c) For an expedited external review, each clinical
reviewer shall provide an opinion orally or in writing to the assigned independent
review organization as expeditiously as the covered person's medical condition
or circumstances requires, but in no event more than five calendar days after
being selected in accordance with subsection (4) of this section.
(d) If the opinion
provided pursuant to subdivision (8)(a) of this section was not in writing,
within forty-eight hours following the date that the opinion was provided,
the clinical reviewer shall provide written confirmation of the opinion to
the assigned independent review organization and include the information required
under subdivision (8)(b) of this section.
(9) In addition to the documents and information provided
pursuant to subdivision (1)(b) of this section or subsection (5) of this section,
each clinical reviewer selected pursuant to subsection (4) of this section,
to the extent the information or documents are available and the reviewer
considers appropriate, shall consider the following in reaching an opinion
pursuant to subsection (8) of this section:
(a) The covered person's pertinent medical records;
(b) The attending
physician or health care professional's recommendation;
(c) Consulting
reports from appropriate health care professionals and other documents submitted
by the health carrier, covered person, the covered person's authorized representative,
if applicable, or the covered person's treating physician or health care professional;
(d) The terms
of coverage under the covered person's health benefit plan with the health
carrier to ensure that, but for the health carrier's determination that the
recommended or requested health care service or treatment that is the subject
of the opinion is experimental or investigational, the reviewer's opinion
is not contrary to the terms of coverage under the covered person's health
benefit plan with the health carrier; and
(e) Whether:
(i) The recommended or requested health care service
or treatment has been approved by the federal Food and Drug Administration,
if applicable, for the condition; or
(ii) Medical or scientific evidence or evidence-based
standards demonstrate that the expected benefits of the recommended or requested
health care service or treatment is more likely than not to be beneficial
to the covered person than any available standard health care service or treatment
and the adverse risks of the recommended or requested health care service
or treatment would not be substantially increased over those of available
standard health care service or treatment.
(10)(a)(i) Except as provided in subdivision (10)(a)(ii)
of this section, within twenty days after the date it receives the opinion
of each clinical reviewer pursuant to subsection (9) of this section, the
assigned independent review organization, in accordance with subdivision (10)(b)
of this section, shall make a decision and provide written notice of the decision
to the covered person, if applicable, the covered person's authorized representative,
the health carrier, and the director.
(ii)(A) For an expedited external review, within forty-eight
hours after the date it receives the opinion of each clinical reviewer pursuant
to subsection (9) of this section, the assigned independent review organization,
in accordance with subdivision (10)(b) of this section, shall make a decision
and provide notice of the decision orally or in writing to the persons listed
in subdivision (10)(a)(i) of this section.
(B) If the notice provided under subdivision (10)(a)(ii)(A)
of this section was not in writing, within forty-eight hours after the date
of providing that notice, the assigned independent review organization shall
provide written confirmation of the decision to the persons listed in subdivision
(10)(a)(i) of this section and include the information set forth in subdivision
(10)(c) of this section.
(b)(i) If a majority of the clinical reviewers recommend
that the recommended or requested health care service or treatment should
be covered, the independent review organization shall make a decision to reverse
the health carrier's adverse determination or final adverse determination.
(ii) If a majority
of the clinical reviewers recommend that the recommended or requested health
care service or treatment should not be covered, the independent review organization
shall make a decision to uphold the health carrier's adverse determination
or final adverse determination.
(iii)(A) If the clinical reviewers are evenly split
as to whether the recommended or requested health care service or treatment
should be covered, the independent review organization shall obtain the opinion
of an additional clinical reviewer in order for the independent review organization
to make a decision based on the opinions of a majority of the clinical reviewers
pursuant to subdivision (10)(b)(i) or (ii) of this section.
(B) The additional
clinical reviewer selected under subdivision (10)(b)(iii)(A) of this section
shall use the same information to reach an opinion as the clinical reviewers
who have already submitted their opinions pursuant to subsection (9) of this
section.
(C)
The selection of the additional clinical reviewer shall not extend the time
within which the assigned independent review organization is required to make
a decision based on the opinions of the clinical reviewers selected under
subsection (4) of this section pursuant to subdivision (4)(a) of this section.
(c) The independent
review organization shall include in the notice provided pursuant to subdivision
(10)(a) of this section:
(i) A general description of the reason for the request
for external review;
(ii) The written opinion of each clinical reviewer,
including the recommendation of each clinical reviewer as to whether the recommended
or requested health care service or treatment should be covered and the rationale
for the reviewer's recommendation;
(iii) The date the independent review organization
was assigned by the director to conduct the external review;
(iv) The date
the external review was conducted;
(v) The date of its decision;
(vi) The principal reason
or reasons for its decision; and
(vii) The rationale for its decision.
(d) Upon receipt
of a notice of a decision pursuant to subdivision (10)(a) of this section
reversing the adverse determination or final adverse determination, the health
carrier shall immediately approve coverage of the recommended or requested
health care service or treatment that was the subject of the adverse determination
or final adverse determination.
(11) The assignment by the director of an approved
independent review organization to conduct an external review in accordance
with this section shall be done on a random basis among those approved independent
review organizations qualified to conduct the particular external review based
on the nature of the health care service that is the subject of the adverse
determination or final adverse determination and other circumstances, including
conflict of interest concerns pursuant to subsection (4) of section 44-1313 .

Legislative History

Source: Laws 2013, LB147, § 10. Cross References: Health Carrier Grievance Procedure Act, see section 44-7301. Utilization Review Act, see section 44-5416.