Report Title:

External Review

Description:

Amends provisions relating to external review for members of health care plans

HOUSE OF REPRESENTATIVES

H.B. NO.

848

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to external review.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 432E, Hawaii Revised Statutes is amended by adding a new section to be appropriately designated and to read as follows:

"§432E- Certification of independent review organizations; minimum standards (a) The department of commerce and consumer affairs shall establish minimum standards for the certification of independent review organizations. An entity that wishes to become certified with the department shall demonstrate:

(1) The existence of a quality-assurance mechanism in place that ensures:

(A) That external reviews are conducted within the specified time periods;

(B) That required notices are provided in a timely manner;

(C) The selection of qualified and impartial reviewing physicians to conduct external reviews on behalf of the independent review organization;

(D) The suitable matching of reviewers to specific cases;

(E) The confidentiality of medical and treatment records and clinical review criteria; and

(F) That any person employed by or under contract with the independent review organization adheres to the requirements of this chapter;

and

(2) The ability to provide the commissioner with statistical data regarding external reviews conducted.

(b) A person assigned by an independent review organization as a reviewer shall be a physician and shall:

(1) Have expertise in the treatment of the enrollee’s medical condition that is the subject of the external review;

(2) Be knowledgeable about the recommended health care service or treatment through recent or current actual clinical experience by having treated patients with the same or similar medical condition that is the subject of the external review;

(3) Hold a non-restricted license to practice medicine in a state of the United States and a current certification by a recognized American medical specialty board in the area or areas appropriate to the subject of the external review; and

(4) Have no history of disciplinary action or sanctions, including loss of staff privileges or participation restrictions, that have been taken or are pending by any hospital, governmental agency or unit, or regulatory body that raises a substantial question as to the physician reviewer’s physical, mental, or professional competence or moral character.

(c) Neither the independent review organization selected to conduct an external review of a specified case nor any physician reviewer assigned by the independent review organization to conduct the external review may have any material professional, familial, or financial conflict of interest with any of the following:

(1) The managed care plan that is the subject of the external review (other than a contract to provide the independent review described above);

(2) Any officer, director, or manager of the managed care plan;

(3) The licensed treating health care provider, the provider’s medical group, or the independent practice association recommending the service or treatment that is the subject of the external review;

(4) The facility at which the recommended service or treatment would be provided;

(5) The developer or manufacturer of the principal drug, device, procedure, or other therapy being recommended for the enrollee whose treatment is the subject of the external review; or

(6) The enrollee or the enrollee's appointed representative who requested the external review.

(d) A potential physician reviewer shall disclose any information regarding a potential conflict of interest to all parties to the review.

(e) To ensure impartiality and the independence of the external review process, both the independent review organizations certified pursuant to this section and the physician reviewers assigned to perform the external review shall reside outside of the State of Hawaii."

SECTION 2. Section 432E-6, Hawaii Revised Statutes, is amended to read as follows:

"§432E-6 External review procedure. [(a) After exhausting all internal complaint and appeal procedures available, an enrollee, or the enrollee's treating provider or appointed representative, may file a request for external review of a managed care plan's final internal determination to a three-member review panel appointed by the commissioner composed of a representative from a managed care plan not involved in the complaint, a provider licensed to practice and practicing medicine in Hawaii not involved in the complaint, and the commissioner or the commissioner's designee in the following manner:

(1) The enrollee shall submit a request for external review to the commissioner within sixty days from the date of the final internal determination by the managed care plan;

(2) The commissioner may retain:

(A) Without regard to chapter 76, an independent medical expert trained in the field of medicine most appropriately related to the matter under review. Presentation of evidence for this purpose shall be exempt from section 91-9(g); and

(B) The services of an independent review organization from an approved list maintained by the commissioner;

(3) Within seven days after receipt of the request for external review, a managed care plan or its designee utilization review organization shall provide to the commissioner or the assigned independent review organization:

(A) Any documents or information used in making the final internal determination including the enrollee's medical records;

(B) Any documentation or written information submitted to the managed care plan in support of the enrollee's initial complaint; and

(C) A list of the names, addresses, and telephone numbers of each licensed health care provider who cared for the enrollee and who may have medical records relevant to the external review; provided that where an expedited appeal is involved, the managed care plan or its designee utilization review organization shall provide the documents and information within forty-eight hours of receipt of the request for external review. Failure by the managed care plan or its designee utilization review organization to provide the documents and information within the prescribed time periods shall not delay the conduct of the external review. Where the plan or its designee utilization review organization fails to provide the documents and information within the prescribed time periods, the commissioner may issue a decision to reverse the final internal determination, in whole or part, and shall promptly notify the independent review organization, the enrollee, the enrollee's appointed representative, if applicable, the enrollee's treating provider, and the managed care plan of the decision;

(4) Upon receipt of the request for external review and upon a showing of good cause, the commissioner shall appoint the members of the external review panel and shall conduct a review hearing pursuant to chapter 91. If the amount in controversy is less than $500, the commissioner may conduct a review hearing without appointing a review panel;

(5) The review hearing shall be conducted as soon as practicable, taking into consideration the medical exigencies of the case; provided that:

(A) The hearing shall be held no later than sixty days from the date of the request for the hearing; and

(B) An external review conducted as an expedited appeal shall be determined no later than seventy-two hours after receipt of the request for external review;

(6) After considering the enrollee's complaint, the managed care plan's response, and any affidavits filed by the parties, the commissioner may dismiss the request for external review if it is determined that the request is frivolous or without merit; and(7) The review panel shall review every final internal determination to determine whether the managed care plan involved acted reasonably. The review panel and the commissioner or the commissioner's designee shall consider:

(A) The terms of the agreement of the enrollee's insurance policy, evidence of coverage, or similar document;

(B) Whether the medical director properly applied the medical necessity criteria in section 432E-1.4 in making the final internal determination;

(C) All relevant medical records;

(D) The clinical standards of the plan;

(E) The information provided;

(F) The attending physician's recommendations; and

(G) Generally accepted practice guidelines.

The commissioner, upon a majority vote of the panel, shall issue an order affirming, modifying, or reversing the decision within thirty days of the hearing.

(b) The procedure set forth in this section shall not apply to claims or allegations of health provider malpractice, professional negligence, or other professional fault against participating providers.

(c) No person shall serve on the review panel or in the independent review organization who, through a familial relationship within the second degree of consanguinity or affinity, or for other reasons, has a direct and substantial professional, financial, or personal interest in:

(1) The plan involved in the complaint, including an officer, director, or employee of the plan; or

(2) The treatment of the enrollee, including but not limited to the developer or manufacturer of the principal drug, device, procedure, or other therapy at issue.

(d) Members of the review panel shall be granted immunity from liability and damages relating to their duties under this section.

(e) An enrollee may be allowed, at the commissioner's discretion, an award of a reasonable sum for attorney's fees and reasonable costs incurred in connection with the external review under this section, unless the commissioner in an administrative proceeding determines that the appeal was unreasonable, fraudulent, excessive, or frivolous.

(f) Disclosure of an enrollee's protected health information shall be limited to disclosure for purposes relating to the external review.] (a) In the event of a dispute between an enrollee’s treating licensed health care provider and the managed care plan regarding medical necessity under section 432E-1.4 of a covered service proposed by the treating licensed health care provider, the managed care plan shall provide a mechanism for the timely review by a physician in the general field of medicine most appropriately related to the matter under review, who is unaffiliated with the managed care plan. The managed care plan shall bear the cost of the review.

Any request for review shall be made by the enrollee within sixty days from the date of the final internal determination by the managed care plan, after the enrollee has exhausted all internal complaint and appeal procedures available pursuant to section 432E-5. The reviewer shall be jointly selected by the enrollee, the treating licensed health care provider, and the managed care plan from a list of independent review organizations maintained by the managed care plan. The independent review organization selected shall assign a qualified reviewing physician to decide the matter of medical necessity. Future contractual or employment action by the managed care plan regarding the treating licensed health care provider shall not be based solely on the provider's participation in this review procedure.

(b) Within thirty days of receipt of notification from the plan and of all medical information necessary to determine if a covered service is medically necessary, the reviewer shall issue a written determination. If an expedited review has been authorized under section 432E-6.5, the decision shall be issued in accordance with the requirements of that section. If the reviewer determines the proposed service is medically necessary for the enrollee, and the managed care plan had no other basis for denying coverage for the service, the plan, within five working days, shall authorize the service to be performed for the enrollee.

(c) If the managed care plan continues to deny coverage for the proposed service, notwithstanding a decision by the reviewing physician that the proposed service is medically necessary for the enrollee, the enrollee may bring an action to enforce the terms of the health care plan contract or seek enforcement of the terms of the plan through any arbitration clause contained in the enrollee's health care plan contract. In any such action or arbitration proceeding, the decision of the reviewing physician as to the medical necessity of the proposed service to be provided to the enrollee involved shall be binding on the enrollee, the treating licensed health care provider, and the managed care plan; provided that the court or arbitrator shall not be bound by any decision of the reviewing physician as to coverage, including but not limited to issues of plan interpretation, contract exclusions, or member eligibility.

(d) As used in this section, the term "enrollee" shall include the enrollee’s duly authorized representative."

SECTION 3. Section 432E-6.5, Hawaii Revised Statutes, is amended to read as follows:

"§432E-6.5 Expedited appeal, when authorized; standard for decision. (a) An enrollee may request that the following be conducted as an expedited appeal:

(1) The internal review under section 432E-5 of the enrollee's complaint; or

(2) The external review under section 432E-6 of the managed care plan's final internal determination.

If a request for expedited appeal is approved by the managed care plan [or the commissioner], the appropriate review shall be completed within seventy-two hours of receipt of the request for expedited appeal, unless the reviewer determines that additional information is necessary to perform the review.

Any request for additional information shall be made within twenty-four hours of the reviewer’s receipt of the request for external review, and shall allow the enrollee no fewer than forty-eight hours to provide the information. If additional information is requested, the review shall be completed no later than forty-eight hours after:

(1) The receipt of the additional information requested; or

(2) The end of the period afforded the member to provide the additional information,

whichever is earlier. If an expedited external review is authorized, the managed care plan shall select the independent review organization that is to perform the review.

(b) An expedited appeal shall be authorized if the application of the [sixty day] sixty-day standard review time frame may:

(1) Seriously jeopardize the life or health of the enrollee;

(2) Seriously jeopardize the enrollee's ability to gain maximum functioning; or

(3) Subject the enrollee to severe pain that cannot be adequately managed without the care or treatment that is the subject of the expedited appeal.

(c) The decision as to whether an enrollee's complaint is an expedited appeal shall be made by applying the standard of a reasonable individual who is not a trained health professional. The decision may be made for the managed care plan by an individual acting on behalf of the managed care plan. If [a] the enrollee's treating licensed health care provider [with knowledge of a claimant's medical condition requests an expedited appeal] certifies on behalf of an enrollee[,] that the criteria in subsection (b) are met, the request shall be treated as an expedited appeal."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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