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State of Rhode Island Office of the Health Insurance Commissioner

Benefit Determination and Utilization Review Regulation

Public Hearing Meeting Agenda

March 25, 2019 – 2:00 P.M. to 3:00 P.M.

State of Rhode Island Department of Labor & Training

1511 Pontiac Avenue, Building 73-1

Cranston, RI 02920

1. Welcome and Brief Explanation of the Proposed Benefit Determination &

Utilization Review Regulation

2:00pm –2:15pm

2. Public Comment

2:15pm – 2:50pm

3. Closing/End of Public Comment

2:50pm – 3:00pm

In The Matter Of:DBR Hearing

Benefit Determination and Utilization Review

March 25, 2019

Min-U-Script® with Word Index

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATION DEPARTMENT OF LABOR AND TRAINING OFFICE OF THE HEALTH INSURANCE COMMISSIONER

IN RE: BENEFIT DETERMINATION AND UTILIZATION REVIEW

DATE: MARCH 25, 2019 TIME: 2:00 P.M. PLACE: DEPARTMENT OF LABOR AND TRAINING DLT OFFICE OF BUSINESS SERVICES 1511 PONTIAC AVENUE BUILDING 73 CRANSTON, RI 02920

BEFORE: COURTNEY MINER, HEARING OFFICER

PRESENT:

ALYSSA METIVIER, HEALTH ECONOMIC SPECIALIST JAY GARRETT, PRINCIPAL POLICY ASSOCIATE CHERYL DELPICO, SENIOR POLICY ANALYST VICTOR WOODS, HEALTH ECONOMIC SPECIALIST



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1 I N D E X

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3 BY THE HEARING OFFICER............. 3

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6 E X H I B I T S

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8 NO EXHIBITS OFFERED

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Benefit Determination and Utilization Review - March 25,2019

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1 (COMMENCED AT 2:00 P.M.)

2 THE HEARING OFFICER: Welcome to

3 the Department of Labor and Training for the

4 Office of the Health Insurance Commissioner

5 Public Hearing of Proposed Regulations

6 relating to the certification and

7 recertification of Benefit Determination

8 Review agencies.

9 It is March 25, 2019 and the time

10 is 2:00 p.m. My name is Courtney Miner and I

11 am a senior policy analyst with the Office of

12 the Health Insurance Commissioner and the

13 Hearing Officer for this hearing. Would the

14 other OHIC staff members in the room please

15 identify themselves.

16 MS. METIVIER: Alyssa Metivier,

17 Health Economic Specialist.

18 MR. GARRETT: Jay Garrett,

19 Principal Policy Associate.

20 MS. DELPICO: Cheryl DelPico,

21 Senior Policy Analyst.

22 MR. WOODS: Victor Woods, Health

23 Economic Specialist.

24 THE HEARING OFFICER: We are here

25 today for a Public Hearing concerning the




4

1 following regulations pursuant to the

2 Administrative Procedures Act, the proposed

3 adoption of the Benefit Determination and

4 Utilization Review Regulation

5 230-RICR20-30-14.

6 These proposed rules and

7 regulations are promulgated pursuant to Rhode

8 Island General Law 27-18.9 entitled the

9 Benefit Determination and Utilization Review

10 Act.

11 The purpose of this hearing is to

12 afford all interested parties an opportunity

13 to comment on the proposed regulations.

14 If you care to speak, please sign

15 in on the sheet. We will call speakers in

16 order of the sign-in. When you are called,

17 identify yourself by name and affiliation, if

18 any, make your presentation. And if you have

19 a written copy of your statement, we

20 appreciate having that for the record.

21 All comments made during this

22 hearing are being recorded and will be

23 included in the Public Regulatory Record for

24 this regulation.

25 The comment period is open until




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1 April 15, 2019. If you would like to provide

2 additional comments, please contact Alyssa

3 Metivier, preferably via E-mail. Ms.

4 Metivier's contact information is included in

5 the public notice and her business cards are

6 available next to the sign-in sheet.

7 Ms. Metivier, have you received

8 any comments to date?

9 MS. METIVIER: I just did.

10 THE HEARING OFFICER: With that

11 being said, do we have any speakers signed up

12 for today?

13 MS. GENNARI: Yes. Melissa

14 Gennari, Delta Dental of Rhode Island. I

15 have a Position Paper from Delta Dental of

16 Rhode Island with respect to the proposed

17 Benefit Determination and Utilization Review

18 Rule.

19 Delta Dental of Rhode Island

20 respectfully provides the following comments

21 and objections to certain aspects of the

22 proposed Benefit Determination and

23 Utilization Review Review Rule, the Proposed

24 Rule, 230-RICR-20-30-14.

25 In several important respects, the




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1 Proposed Rule has a disproportionately harsh

2 impact on excepted benefits, such as

3 stand-alone dental. Other aspects of the

4 Proposed Rule would materially modify, rather

5 than implement, the corresponding enabling

6 statute, the Benefit Determination and

7 Utilization Review Act, Rhode Island General

8 Law, Section 27-18.9-1 (The Act), by

9 introducing material provisions that the

10 legislature rejected.

11 1. The Proposed Rule exceeds the

12 Act by requiring review agents to solicit

13 input from non-provider stakeholders, such as

14 consumer advocacy groups, in connection with

15 the development of clinical utilization

16 review guidelines. If such stakeholder input

17 is required, employers should be included

18 among such stakeholders.

19 As part of the Administrative

20 Simplification Workgroup Process that

21 preceded the Proposed Rule, DDRI joined with

22 Blue Cross and Blue Shield of Rhode Island

23 and CVS Health in a combined position

24 memorandum to the Commissioner on the issue

25 of non-provider stakeholder input into




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1 clinical utilization review guidelines,

2 particularly the process of incorporating and

3 considering local variations to national

4 clinical standards and criteria.

5 The combined DDRI, Blue Cross and

6 Blue Shield of Rhode Island and CVS Health

7 position was that the Act, by its own plain

8 language, leaves it up to the review agent to

9 develop that process, and merely requires the

10 review agent to include local participating

11 providers in that process, not general

12 stakeholders not qualified or experienced in

13 making judgments on clinical matters.

14 A copy of the joint DDRI, Blue

15 Cross and Blue Shield of Rhode Island and CVS

16 Health Position Memorandum is attached with

17 the position paper and I provided a copy to

18 all of you.

19 The Proposed Rule reflects a

20 contrary view and modifies the statute by

21 adding language not found in it, and in

22 conflict with it, to the effect that this

23 process of considering local variations to

24 national clinical standards must involve not

25 only local participating providers, but must




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1 more broadly, affirmatively and meaningfully

2 solicit, track and reasonably incorporate

3 input from an objective, independent and a

4 diverse pool of local providers, including

5 local participating providers or their

6 representatives. Affirmative and meaningful

7 solicitation shall include, without

8 limitation, notice to consumer advocacy

9 groups, health care professional associations

10 and chronic disease associations concerning

11 clinical criteria relevant to their

12 organizations.

13 Without waiving its position that

14 the Proposed Rule exceeds and materially

15 modifies the statute, DDRI submits that its

16 list of stakeholders is incomplete. It does

17 not include employers and other healthcare

18 plan sponsors, the entities that make the

19 healthcare possible by paying and/or

20 providing for it, and who are most certainly

21 stakeholders.

22 If the Rule is to contain such a

23 broad list of stakeholders whose input should

24 be required, employers and other sponsors of

25 health plans, or their representatives,




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1 should also be included.

2 2. The Act does not require

3 specialists to be involved at the

4 reconsideration or appeal level of

5 utilization review.

6 The Proposed Rule, Section

7 14.7.0.3, would also impermissibly exceed and

8 change the Act by requiring any internal

9 reconsideration or appeal of a utilization

10 review determination to be made by an

11 individual in the same or similar speciality

12 as typically manages the condition.

13 The term same or similar

14 speciality is a defined term in the Act. It

15 is not defined in terms of licensure status,

16 but as a practitioner who has the appropriate

17 training and experience that is the same as

18 or similar to the attending provider in

19 addition to experience in treating the same

20 problems to include any potential

21 complications as those under review.

22 The Act specifically declined to

23 require practitioners in the same or similar

24 specialty to be involved at the

25 reconsideration or appeal stage of internal




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1 utilization review. The legislature elected

2 not to use the defined term, same or similar

3 specialty, to describe the required

4 qualifications for practitioners conducting

5 utilization review at the reconsideration or

6 appeal stage.

7 Rather, the legislature was

8 unequivocal that, "When the appeal of any

9 adverse benefit determination, including an

10 appeal of a reconsideration decision is based

11 in whole or in part on medical judgment, the

12 reviewer making the appeal decision must be

13 appropriately trained, having the same

14 licensure status as the ordering provider or

15 be a physician or dentist in the same or

16 similar speciality as typically manages the

17 condition."

18 The former Benefit Determination

19 Rule as enacted by the DOH is properly within

20 the guardrails of the Act in this regard.

21 Respectfully, the Proposed Rule is not. The

22 legislature has declined to pass proposed

23 bills in recent sessions that would change

24 the statutory rule in this regard.

25 DDRI has electively and suitably




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1 involved a practitioner in the same or

2 similar specialty only at the appeal level

3 following an adverse reconsideration decision

4 when the treating provider is a specialist,

5 and of course upon external review.

6 Unlike with most medical

7 procedures, the cost implications of

8 involving specialists are particularly harsh

9 when it comes to excepted benefits such as

10 dental and vision, which are comparatively

11 much less expensive. Moreover, general

12 dentists are fully qualified by their

13 licensure to perform most procedures

14 performed by dental specialists.

15 3. The Act does not require the

16 peer-to-peer phone call to occur even without

17 the provider's cooperation.

18 The Proposed Regulation, Section

19 14.7.N, exceeds the Act by requiring the

20 peer-to-peer telephone call at the

21 internal-level appeals stage to result in

22 actual spoken words between the review agent

23 and the provider. Rather, it correctly

24 anticipated there would be situations in

25 which the provider would not return calls or




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1 could otherwise not be reached,

2 notwithstanding the best efforts of the

3 review agent.

4 What the Act requires is that

5 before an adverse determination is made, the

6 review agent must have "Spoken to or

7 otherwise provided for an equivalent two-way,

8 direct communication with the dentist."

9 Rather than implementing the statutory

10 standard, the Proposed Rule would change it,

11 a prerogative reserved to the legislature.

12 In addition, the proposed

13 regulation does not account for when a review

14 agent has included a reconsideration process

15 in addition to an appeal, and included the

16 peer-to-peer discussion as part of the

17 initial reconsideration. The Act (Section

18 27-18.9-7(b)(3)) requires only one

19 peer-to-peer review, stating that "A review

20 agent who does not utilize a reconsideration

21 process must comply with the peer review

22 obligation described in Subsection (b)(3)(i)

23 of this section as part of the appeal

24 process."

25 4. The Act does not prescribe a




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1 minimum dollar sum for the patient's

2 responsibility for the cost of external

3 review when it comes to excepted benefits

4 such as dental. Rather, the Act specifically

5 exempts dental benefits from that

6 requirement.

7 Unlike most medical procedures,

8 most dental procedures involve costs much

9 less than the $400 cost to have one of the

10 State's approved external review agencies

11 conduct external review. Hence, the cost to

12 Delta Dental to be involved in external

13 review would almost always exceed the cost of

14 the procedure itself.

15 Hence, a provider whose appeal has

16 already been denied twice would, by having

17 the patient pursue external review, render it

18 economically infeasible for DDRI to not

19 simply pay the claim.

20 Hence, in dealing with the issue

21 of patient responsibility for fees in the

22 Act, the legislature chose to permit a $25

23 maximum fee to the patient for external

24 review for medical adverse determination, but

25 created an exemption for excepted benefits




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1 such as dental and vision and provided for no

2 maximum patient responsibility. Rhode Island

3 General Law Section 27-18.9-8(a)(5).

4 The Proposed Rule would impose a

5 $50 maximum patient share of the external

6 review fee for excepted benefits such as

7 dental thereby changes the Act, and in a way

8 that conflicts with the explicit intent of

9 the Act to exempt dental and vision from such

10 a maximum. Thank you.

11 THE HEARING OFFICER: Thank you.

12 Is there anybody else who would care to

13 comment? Okay. Being there are no further

14 comments, this hearing is now closed at 2:10.

15 (Closed at 2:10 p.m.)

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1 C-E-R-T-I-F-I-C-A-T-E

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3 I, BARBARA WARNER, Notary Public, RPR, do hereby certify that I reported in

4 shorthand the foregoing proceedings, and that the foregoing transcript contains a true,

5 accurate, and complete record of the proceedings at the above-entitled Hearing.

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7 IN WITNESS WHEREOF, I have hereunto set

8 my hand this 25th day of March, 2019.

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17 ___________________________________________ BARBARA WARNER, NOTARY PUBLIC, RPR,

18 CERTIFIED COURT REPORTER

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20 *MY COMMISSION EXPIRES OCTOBER 15, 2022.

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DBR Hearing Benefit Determination and Utilization ReviewMarch 25, 2019

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$25 (1) 13:22$400 (1) 13:9$50 (1) 14:5

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account (1) 12:13Act (20) 4:2,10;6:7,8,12; 7:7;9:2,8,14,22; 10:20;11:15,19;12:4, 17,25;13:4,22;14:7,9actual (1) 11:22adding (1) 7:21addition (3) 9:19;12:12,15additional (1) 5:2Administrative (2) 4:2;6:19adoption (1) 4:3adverse (4) 10:9;11:3;12:5; 13:24advocacy (2) 6:14;8:8affiliation (1) 4:17Affirmative (1) 8:6affirmatively (1) 8:1afford (1) 4:12agencies (2) 3:8;13:10agent (7) 7:8,10;11:22;12:3, 6,14,20agents (1) 6:12almost (1) 13:13always (1) 13:13Alyssa (2) 3:16;5:2among (1) 6:18analyst (2) 3:11,21and/or (1) 8:19

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call (3) 4:15;11:16,20called (1) 4:16calls (1)

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consumer (2) 6:14;8:8contact (2) 5:2,4contain (1) 8:22contrary (1) 7:20cooperation (1) 11:17copy (3) 4:19;7:14,17correctly (1) 11:23corresponding (1) 6:5cost (5) 11:7;13:2,9,11,13costs (1) 13:8course (1) 11:5Courtney (1) 3:10created (1) 13:25criteria (2) 7:4;8:11Cross (3) 6:22;7:5,15CVS (3) 6:23;7:6,15

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date (1) 5:8DDRI (6) 6:21;7:5,14;8:15; 10:25;13:18dealing (1) 13:20decision (3) 10:10,12;11:3declined (2) 9:22;10:22defined (3) 9:14,15;10:2DELPICO (2) 3:20,20Delta (4) 5:14,15,19;13:12denied (1) 13:16Dental (13) 5:14,15,19;6:3; 11:10,14;13:4,5,8,12; 14:1,7,9dentist (2) 10:15;12:8dentists (1) 11:12Department (1)

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(1) $25 - exceed


9:7;13:13exceeds (3) 6:11;8:14;11:19excepted (5) 6:2;11:9;13:3,25; 14:6exempt (1) 14:9exemption (1) 13:25exempts (1) 13:5expensive (1) 11:11experience (2) 9:17,19experienced (1) 7:12explicit (1) 14:8external (8) 11:5;13:2,10,11,12, 17,23;14:5

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identify (2) 3:15;4:17impact (1) 6:2impermissibly (1) 9:7implement (1) 6:5implementing (1) 12:9implications (1) 11:7important (1) 5:25impose (1) 14:4include (4) 7:10;8:7,17;9:20included (6) 4:23;5:4;6:17;9:1; 12:14,15including (2) 8:4;10:9incomplete (1) 8:16incorporate (1) 8:2incorporating (1) 7:2independent (1) 8:3individual (1) 9:11infeasible (1) 13:18information (1) 5:4initial (1) 12:17input (5) 6:13,16,25;8:3,23Insurance (2) 3:4,12intent (1) 14:8interested (1) 4:12internal (2) 9:8,25internal-level (1) 11:21

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M

making (2) 7:13;10:12manages (2) 9:12;10:16March (1) 3:9

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objections (1) 5:21objective (1) 8:3obligation (1) 12:22occur (1) 11:16Office (2) 3:4,11OFFICER (5) 3:2,13,24;5:10; 14:11OHIC (1) 3:14one (2) 12:18;13:9only (3) 7:25;11:2;12:18open (1) 4:25opportunity (1) 4:12order (1) 4:16ordering (1) 10:14organizations (1) 8:12otherwise (2) 12:1,7own (1) 7:7

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(2) exceeds - peer-to-peer


11:16,20;12:16,19perform (1) 11:13performed (1) 11:14period (1) 4:25permit (1) 13:22phone (1) 11:16physician (1) 10:15plain (1) 7:7plan (1) 8:18plans (1) 8:25please (3) 3:14;4:14;5:2PM (3) 3:1,10;14:15policy (3) 3:11,19,21pool (1) 8:4Position (6) 5:15;6:23;7:7,16, 17;8:13possible (1) 8:19potential (1) 9:20practitioner (2) 9:16;11:1practitioners (2) 9:23;10:4preceded (1) 6:21preferably (1) 5:3prerogative (1) 12:11prescribe (1) 12:25presentation (1) 4:18Principal (1) 3:19problems (1) 9:20procedure (1) 13:14Procedures (5) 4:2;11:7,13;13:7,8Process (8) 6:20;7:2,9,11,23; 12:14,21,24professional (1) 8:9promulgated (1) 4:7

properly (1) 10:19Proposed (20) 3:5;4:2,6,13;5:16, 22,23;6:1,4,11,21; 7:19;8:14;9:6;10:21, 22;11:18;12:10,12; 14:4provide (1) 5:1provided (3) 7:17;12:7;14:1provider (6) 9:18;10:14;11:4, 23,25;13:15providers (4) 7:11,25;8:4,5provider's (1) 11:17provides (1) 5:20providing (1) 8:20provisions (1) 6:9Public (4) 3:5,25;4:23;5:5purpose (1) 4:11pursuant (2) 4:1,7pursue (1) 13:17

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qualifications (1) 10:4qualified (2) 7:12;11:12

R

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3

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(4) under - 4

OFFICE OF THE HEALTH INSURANCE COMMISSIONER

Memorandum Summarizing Content of Regulation Hearing

R.I. Gen. Laws § 27-18.9

To: Commissioner Marie L. Ganim, PhD

From: Courtney Miner

Date: 03/25/2019

Regulation: Benefit Determination and Utilization Review: 230-RICR-20-30-14

_______________________________________________________________________________

The hearing on the above referenced regulation was held on March 25, 2019 at 2:00pm. Present at the

hearing from OHIC were Alyssa Metivier, Victor Woods, Linda Johnson, Jay Garrett and Cheryl DelPico.

The hearing officer was myself, Courtney Miner. The commenter present at the hearing was Melissa

Gennari, Director of Compliance from Delta Dental of Rhode Island. The following is a summary of the

presentations made at the hearing:

1. Melissa Gennari from Delta Dental of Rhode Island (DDRI) read and submitted DDRI’s position

statement as public comment during the hearing. The position statement expresses DDRI’s concerns

with the following sections:

a. 14.6(D) of the Benefit Determination and Utilization Review regulation regarding

incorporating input on clinical criteria.

i. DDRI, BCBSRI and CVS Health’s position was that the Act, by its own plain language,

leaves it up to the Review Agent to develop that process, and merely requires the

Review Agent to include “local participating providers” in that process – not general

stakeholders “stakeholders” not qualified or experienced in making judgments on

clinical matters.

ii. Without waiving on their above position, DDRI submits that its list of “stakeholders” is

incomplete as it does not include employers and other healthcare plan sponsors, the

entities that make the healthcare possible by paying and/or providing for it, and who are

most certainly “stakeholders”.

b. 14.7(O)(3) of the Benefit Determination and Utilization Review regulation around the

reconsideration process in the appeal process

i. DDRI believes that this changes the Act by requiring any internal reconsideration or

appeal of a utilization review determination to be made by “an individual in the same or

similar specialty as typically manages the condition”.

ii. DDRI involves a practitioner in the “same or similar specialty” only at the appeal level

following an adverse reconsideration decision when the treating provider is a specialist,

and upon external review.

iii. DDRI believes general dentists are fully qualified by their licensure to perform most

procedures performed by dental “specialists”.

c. 14.7(N)(5) of the Benefit Determination and Utilization Review regulation regarding the peer

to peer review.

i. DDRI believes this section exceeds the Act by requiring the “peer to peer” telephone

call at the internal-level appeals stage to result in actual spoken words between the

review agent and the provider.

d. 14.8(F) of the Benefit Determination and Utilization Review regulation regarding the fee

associated with excepted benefits.

i. DDRI believes that the cost involved in external review would almost always exceed

the cost of the procedure itself. Hence, a provider whose appeal has already been denied

twice would, by having the patient pursue external review, render it economically

infeasible for DDRI to not simply pay the claim.

ii. DDRI believes the $50.00 maximum patient share of the external review fee for

excepted benefits such as dental changes the Act and conflicts with the intent to exempt

dental and vision from the maximum.

Attached for your review is the written comment received. Please be advised that the hearing was

transcribed by a stenographer and will be available in PDF within 10 business days. If you have any

questions, please let me know.

Sincerely,

Courtney Miner

Senior Policy Analyst

Office of the Health Insurance Commissioner

Change Healthcare 3055 Lebanon Pike, Suite 1000 Nashville, TN 37214

p 615. 932. 3292 F 615. 231. 4843

changehealthcare.com

Dear Ms. Metivier: On behalf of Change Healthcare, I am pleased to write to you regarding proposed rule 230-RICR-20-30-14 addressing Benefit Determination and Utilization Review in Rhode Island Change Healthcare provides health care technology solutions to create a more effective and efficient healthcare system. As a key facilitator of value-based healthcare, Change Healthcare collaborates with our customers and partners to accelerate the journey toward improved lives and healthier communities. We provide visible measures of quality and value not only at the point of care, but also between, after, and in between care episodes.

Change Healthcare applauds the efforts of the State to improve processes related to utilization of health services in Rhode Island. We believe the efforts of 230-RICR-20-30-14 are aligned with the work that we do. Working alongside its Rhode Island customers and partners, Change Healthcare leverages its software and analytics, intelligent health data platform, and technology-enabled services to help providers and payers improve efficiency, reduce costs, and more effectively manage complex workflows. Change Healthcare develops and licenses industry leading InterQual ® criteria which has been the gold standard for unbiased, objective evidence-based clinical decision support content and tools for over 40 years. There are over 4,000 providers and payers who utilize our InterQual criteriai to help ensure that they make clinically appropriate medical utilization decisions grounded in evidence-based medicine. The continued retention of our client base for decades for both providers and payers for our InterQual criteria attests to the quality of our criteria. Change Healthcare would like to offer our expertise with the following comment related to 230-RICR-20-30-14, which we feel will enhance the rule. We are concerned that the requirements in §14.6 (D)(3)(a) related to implementing a process to incorporate and consider local variations to national standards and criteria may add additional complexity to the process than is necessary. Criteria sourced to evidence-based published clinical research is by its nature very clinically complex. Non-clinicians, such as described in §14.6 (D)(3)(a), may not have the clinical training to provide an opinion on either the evidence-based research component of the clinical criteria and/or the current standard of care. In addition, unbiased, evidence-based criteria such as InterQual, utilizes a peer review validation process drawing from our provider panel of over 1,000 actively practicing clinical professionals. These professionals are screened to limit any conflicts of interest and review our evidence-based criteria prior to publication to help ensure provider input and arrive at a national standard.

Date April 8, 2019 Alyssa R. Metivier Department of Business Regulation Office of the Health Insurance Commissioner 1511 Pontiac Ave Building 69-1 Cranston, RI 02920

RE: Commentary on proposed rule 230-RICR-20-30-14

Therefore, we would suggest that §14.6 (D)(3)(a) be amended to read as follows:

“Affirmatively and meaningfully solicits, tracks and reasonably incorporates input from an objective, independent and diverse pool of local providers, including local participating providers or their representatives”.

We also recommend clarification of the current language in §14.6 (D)(4) to protect the intellectual property of third-party clinical criteria developers such as Change Healthcare. Change Healthcare respectfully would propose the following bolded text for consideration: §14.6 (D)(4)

Ensure meaningful and reasonably understandable updated descriptions of clinical decision criteria are available to beneficiaries, providers, and the Office upon request as well as readily available and accessible on the health care entity’s or the review agent's website. These requirements shall not require the health care entity or the review agent to disclose licensed, proprietary criteria on a public-facing portion of its website.

The addition of this clarification language supports the intent of the regulation to improve transparency of criteria; and protect intellectual property rights of third-party clinical criteria developers such as Change Healthcare. Thank you for this opportunity to provide commentary on 230-RICR-20-30-14. Change Healthcare would welcome the opportunity to discuss any of these comments further with you or your staff. Regards,

Laura Coughlin - Vice-President Clinical Development Change Healthcare 617-273-2905

i Change Healthcare Internal Statistics

1

April 12, 2019 The following are Neighborhood Health Plan of Rhode Island’s (Neighborhood) comments on the Subchapter 30 – Health Insurance Part 14 – Benefit Determination and Utilization Review per the March 14, 2019 Public Notice of Proposed Adoption of Benefit Determination and Utilization Review. Comment/clarification One: Please confirm the effective date of this regulation.

Comment/clarification Two: Please confirm if the following applies to ALL pharmaceutical appeals regardless of whether or

not they are expedited.

Section 14.7 Internal Appeal and Reconsideration Requirements K. For the appeal of a utilization review adverse benefit determination decision for a drug that is not on the formulary, the review agent shall complete the internal appeal determination and notify the claimant of its determination: 1. No later than seventy‐two (72) hours following receipt of the appeal request; or 2. No later than twenty four (24) hours following the receipt of the appeal request in cases where the beneficiary is suffering from a health condition that may seriously jeopardize the beneficiary's life, health, or ability to regain maximum function, with deference given to any such determination by the ordering provider, or when a beneficiary is undergoing a current course of treatment using a nonformulary drug; and 3. If approved on internal appeal, coverage of the nonformulary drug must be provided for the duration of the prescription, including refills unless expedited pursuant to §4.7(J)(2), in which case for the duration of the exigency. Comment/clarification Three: Please confirm that this section does not apply to administrative benefit appeal denials. Also,

the excepted benefit as defined in 42 U.S.C. § 300gg91(c) does not seem to apply to this

section.

Section 14.8 applies to the External appeal of non‐administrative benefit determinations requirements; however, section F under the 14.8 states the following: A claimant requesting an external appeal of an excepted benefit as defined in 42 U.S.C. § 300gg91(c), may be charged no more than a fifty dollar ($50.00) external appeal fee by the review agent. The external appeal fee, if charged, must be refunded to the claimant if the

2

adverse benefit determination is reversed through external review. The external appeal fee must be waived if payment of the fee would impose an undue financial hardship on the beneficiary. In addition, the annual limit on external appeal fees for any beneficiary within a single plan year (in the individual market, within a policy year) must not exceed one hundred and fifty dollars ($150.00).

April 12, 2019 Alyssa R. Metivier Department of Business Regulation Office of the Health Insurance Commissioner 1511 Pontiac Avenue Cranston, RI 02920 Re: OHIC Regulation 230-RICR-20-30-14 Benefit Determination and Utilization Review Rule

Dear Ms. Metivier, The Rhode Island Business Group on Health has followed with interest the process through which OHIC has issued its proposed “Benefit Determination and Utilization Review Rule” 230-RICR-20-30-14. We respectfully wish to comment on the portion of the Rule (Section 14 D) dealing with the development by Utilization Review Agents of the written clinical criteria and review procedures for utilization review - medical necessity - determinations, and the input that is required from various “stakeholders” in connection therewith. The proposed Rule expands input beyond providers of health care. We do not support this expansion as it allows for layperson input into criteria which are clinical in nature. This may have the unintended consequence of increasing administrative costs as well as expanding coverage beyond evidence based medicine. However, if this provision is retained, employers and other sponsors of health plans should be included in the list of stakeholders. As payors and parties interested in enhancing the quality and efficiency of the utilization review process for the members whose health care they effectively provide for, employers and other sponsors of health plans or their representatives are truly stakeholders in this process. We respectfully request that they be so included. Thank you for your attention to this matter. Sincerely,

Albert Charbonneau Executive Director

of 2

April 11, 2019

Alyssa R. Metivier

Department of Business Regulation

Office of the Health Insurance Commissioner

1511 Pontiac Avenue

Cranston, RI 02920

RE: OHIC Regulation 230-RICR-20-30-14 Benefit Determination and Utilization Review Rule

Dear Ms. Metivier,

The Rhode Island Business Coalition has followed with interest the process through which OHIC

has issued its proposed “Benefit Determination and Utilization Review Rule” 230-RICR-20-30-

14. The undersigned members of the Business Coalition respectfully wish to comment on the

portion of the Rule (Section 14 D) dealing with the development by Utilization Review Agents of

the written clinical criteria and review procedures for utilization review – medical necessity –

determinations, and the input that is required from various “stakeholders” in connection therewith.

The proposed Rule appropriately includes providers of health care, consumer advocacy groups,

healthcare professional associations and chronic disease associations as stakeholders whose input

should be solicited. However, it inadvertently omits employers and other sponsors of health plans

from the list. As payors and parties interested in enhancing the quality and efficiency of the

utilization review process for the members whose health care they effectively provide for,

employers and other sponsors of health plans (or their representatives) are truly stakeholders in

this process. We respectfully request that they be so included.

Sincerely,

New England Business Association (formerly SBANE) - Robin L. Main, Chair; Ralph Coppola,

Chair RI Government Affairs Committee

NFIB – Christopher Carlozzi, State Director

Rhode Island Hospitality Association – Dale J. Venturini, President/CEO

Rhode Island Manufacturers Association – David M. Chenevert, Executive Director

RIBC Comments – 230-RICR-20-30-14

Page 2 of 2

Rhode Island Small Business Economic Summit – Grafton Willey, Tax and Budget Committee

Chairman

Rhode Island Society of Certified Public Accountants – Melissa Travis, President

UHC Public Comment

230RICR203014

TITLE 230 – DEPARTMENT OF BUSINESS REGULATION

CHAPTER 20 – INSURANCE

SUBCHAPTER 30 – HEALTH INSURANCE

PART 14 – Benefit Determination and Utilization Review

14.1 Authority

These rules and regulations are promulgated pursuant to the R.I. Gen. Laws

Chapter 2718.9 entitled Benefit Determination and Utilization Review Act (the

Act).

14.2 Purpose and Scope

A. It is in the best interest of the public that those individuals and health care entities

involved with the determination of health plan benefit determinations,

administrative and nonadministrative, in our state meet the standards set forth in

R.I. Gen. Laws Chapter 2718.9 (the Act) and this Part;

B. To establish reasonable standards for review agencies to ensure the timely

approval of and payment for covered health care services to health care entity

beneficiaries;

C. To protect health care entity beneficiaries from benefit determination processes

that may unreasonably impede access to covered health care services;

D. To require health care entities and review agencies to improve and maintain

coordination of benefit determination activities among all stakeholders and to the

benefit of beneficiaries; and

E. Nothing in the Act and this Part is intended to prohibit a health care entity or its

review agencies from performing medical necessity determinations or

maintaining processes to assess the accuracy of benefit coverage for its

beneficiaries.

14.3 Definitions

A. As used in this Part:

Commented [KCD1]: Could it be clarified whether this regulation applies to stand alone dental/vision coverages?

UHC Public Comment

1. "Adverse benefit determination" means a decision not to authorize a

health care service, including a denial, reduction, or termination of, or a

failure to provide or make a payment, in whole or in part, for a benefit. A

decision by a review agent to authorize a health care service in an

alternative setting, a modified extension of stay, or an alternative

treatment shall not constitute an adverse benefit determination if the

review agent and provider are in agreement regarding the decision.

Adverse benefit determinations include:

a. "Administrative adverse benefit determinations," meaning any

adverse benefit determination that does not require the use of

medical judgment or clinical criteria such as a determination of an

individual's eligibility to participate in coverage, a determination that

a benefit is not a covered benefit, a determination that an

administrative requirement was not followed, or any rescission of

coverage; and

b. "Nonadministrative adverse benefit determinations," or “utilization

review adverse benefit determinations,” meaning any adverse

benefit determination that requires or involves the use of medical

judgment or clinical criteria to determine whether the service being

reviewed is medically necessary and/or appropriate. This includes

the denial of treatments determined to be experimental or

investigational, and any denial of coverage of a prescription drug

because that drug is not on the healthcare entity's formulary.

2. "Appeal" or "internal appeal" means a subsequent review of an adverse

benefit determination upon request by a claimant to include the beneficiary

or provider to reconsider all or part of the original adverse benefit

determination.

3. “Authorization” means a review by a review agent, performed according to

the Act and this Part, concluding that the allocation of health care services

ordered by a provider, given or proposed to be given to a beneficiary, was

approved or authorized.

4. "Authorized representative" means an individual acting on behalf of the

beneficiary and shall include: the ordering provider; any individual to

whom the beneficiary has given express written consent to act on his or

her behalf; a person authorized by law to provide substituted consent for

the beneficiary; and, when the beneficiary is unable to provide consent, a

family member of the beneficiary. Ordering provider shall have the same

meaning as attending provider for purposes of this Part.

UHC Public Comment

5. "Beneficiary" means a policy holder subscriber, enrollee, or other

individual participating in a health benefit plan.

6. "Benefit determination" means a decision to approve or deny a request to

provide or make payment for a health care service or treatment. Benefit

determinations include:

a. “Administrative benefit determinations,” meaning any benefit

determination that does not require the use of medical judgement

or clinical criteria such as a determination of an individual's

eligibility to participate in coverage, a determination that a benefit is

or is not covered, a determination that an administrative

requirement was or was not followed, or any determination of

coverage; and

b. “Nonadministrative benefit determinations,” or “utilization review

benefit determinations,” meaning any benefit determination that

requires or involves the use of medical judgment or clinical criteria

to determine whether the service being reviewed is medically

necessary and/or appropriate. This includes the denial or approval

of treatments determined to be experimental or investigational, and

any denial or approval of coverage of a prescription drug because

that drug is not on the health care entity's formulary.

7. "Certificate" means a certificate granted by the Commissioner to a review

agent/agency meeting the requirements of this chapter.

8. “Claim” means a request for plan benefit(s) made by a claimant in

accordance with the health care entity's reasonable procedures for filing

benefit claims. This shall include preservice, concurrent, and postservice

claims.

9. “Claimant” means a health care entity participant, beneficiary, and/or

authorized representative who makes a request for plan benefit(s).

10. “Commissioner" means the Commissioner of the Office of the Health

Insurance Commissioner.

11. "Complaint" or "grievance" means an oral or written expression of

dissatisfaction by a beneficiary, authorized representative, or provider.

The appeal of an adverse benefit determination is not considered a

complaint or grievance.

12. “Concurrent assessment” means an assessment of health care services

conducted during a beneficiary's hospital stay, course of treatment or

UHC Public Comment

services over a period of time, or for the number of treatments. If the

medical problem is ongoing, this assessment may include the review of

services after they have been rendered and billed.

13. "Concurrent claim" means a request for a plan benefit(s) by a claimant

that is for an ongoing course of treatment or services over a period of time

or for the number of treatments.

14. “Covered service" or "covered benefit" means those health care services

to which a beneficiary is entitled under the terms of the health benefit plan.

15. “Delegate" means a person or other party authorized pursuant to a

delegation of authority or redelegation of authority, by an agency to

perform one or more of the functions and responsibilities of an agency set

forth in the Act or regulations or guidance promulgated thereunder.

16. “Emergency services" or "emergent health care services" means those

resources provided in the event of the sudden onset of a medical,

behavioral health, or other health condition where the absence of

immediate medical attention could reasonably be expected, by a prudent

layperson, to result in placing the patient's health in serious jeopardy,

serious impairment to bodily or mental functions, or serious dysfunction of

any bodily organ or part.

17. "External review" means a review of a nonadministrative adverse benefit

determination (including final internal adverse benefit determination)

conducted pursuant to an applicable external review process performed

by an independent review organization.

18. “External review decision” means a determination by an independent

review organization at the conclusion of the external review.

19. "Final internal adverse benefit determination" means an adverse benefit

determination that has been upheld by a plan or issuer at the completion

of the internal appeals process or when the internal appeals process has

been deemed exhausted as defined in R.I. Gen. Laws § 2718.97(b)(1).

20. "Health benefit plan" or "health plan" means a policy, contract, certificate,

or agreement entered into, offered, or issued by a health care entity to

provide, deliver, arrange for, pay for, or reimburse any of the costs of

health care services.

21. “Health care entity" means an insurance company licensed, or required to

be licensed, by the state of Rhode Island or other entity subject to the

jurisdiction of the Commissioner or the jurisdiction of the department of

UHC Public Comment

business regulation that contracts or offers to contract, or enters into an

agreement to provide, deliver, arrange for, pay for, or reimburse any of the

costs of health care services, including, without limitation: a forprofit or

nonprofit hospital, medical or dental service corporation or plan, a health

maintenance organization, a health insurance company, or any other

entity providing health insurance, accident and sickness insurance, health

benefits, or health care services. Entity shall have the same meaning as

health care entity for purposes of this Part.

22. “Health care service" means and includes, but is not limited to: an

admission, diagnostic procedure, therapeutic procedure, treatment,

extension of stay, the ordering and/or filling of formulary or nonformulary

medications, and any other medical, behavioral, dental, vision care

services, activities, or supplies that are covered by the beneficiary's health

benefit plan.

23. "Independent review organization" or "IRO" means an entity that conducts

independent external reviews of adverse benefit determinations or final

internal adverse benefit determinations.

24. "Material change" means a systemic change determined by the Office to

be a change, that could reasonably be expected to adversely affect the

utilization review policies and procedures access, availability, quality or

continuity of services for a significant number of beneficiaries of a health

care entity to include, but not be limited to the following:

a. Termination of a hospital or facility contract;

b. Termination of professional provider contract(s);

c. Professional provider contract changes affecting any one

professional provider specialty within any of the health care entity’s

network plans;

d. A change to the tiered products, or the multitiered, layered or multi

level network plan structures during a network plan contract year;

e.a. Termination or transition of any benefit determination delegate;

f.b. Surrender or withdrawal of any network plan holding a certificate

under the Act or this Part; or

g.c. Other operational and network plan changes that meet the

definition of material change.

Commented [KCD2]: We recognize that this language is taken from the network plan certification requirements. The language refers to changes that are related to networks, not UR. Material changes, in the context of this regulation, would be material changes that are specific to UR. We suggest the language be revised to address UR.

UHC Public Comment

25. "Office" means the Office of the Health Insurance Commissioner.

26. “Peer reviewer” means a review agency’s licensed practitioner with the

same licensure status as the ordering provider.

27. "Preservice claim" means the request for a plan benefit(s) by a claimant

prior to a service being rendered and is not considered a concurrent claim.

28. "Participating provider" or "network provider” means a provider under

contract with a health care entity, or one of its delegates, who has agreed

under this contract to provide health care services to the health care

entity's beneficiaries with an expectation of receiving payment, other than

coinsurance, copayments, or deductibles from the beneficiary, only from

the health care entity under the terms of the contract.

29. "Professional provider" or “professional practitioner” means an individual

provider or health care professional licensed, accredited, or certified to

perform specified health care services consistent with state law and who

provides these health care services and is not part of a separate facility or

institutional contract.

30. "Prospective assessment" and/or "preservice assessment" means an

assessment of health care services prior to services being rendered.

31. "Provider" means a physician, hospital, professional provider, pharmacy,

laboratory, dental, medical, or behavioral health provider, or other state

licensed or other staterecognized provider of health care or behavioral

health services or supplies.

32. “Reconsideration” means a review during the appeal process of an

adverse benefit determination based on the submission of additional

information or a peertopeer discussion. A reversal of an adverse benefit

determination outside of the appeals process is not a reconsideration.

33. "Retrospective assessment" and/or "postservice assessment" means an

assessment of health care services that have been rendered. This shall

not include reviews conducted when the review agency has been

obtaining ongoing information.

34. "Retrospective claim" or "postservice claim" means any claim for a health

plan benefit that is not a preservice or concurrent claim.

35. "Review agent" or “review agency” or “agency” means a person or health

care entity performing benefit determination reviews that is either

Commented [KCD3]: We suggest this definition be expanded to allow for the “same or greater” licensure such that for example a psychologist as ordering provider that could be reviewed by a psychologist or psychiatrist. As it is currently written it could only be a psychologist (same licensure).

UHC Public Comment

employed by, affiliated with, under contract with, or acting on behalf of a

health care entity.

36. "Same or similar specialty" means a practitioner who has the appropriate

training and experience that is the same as or similar to the attending

provider in addition to experience in treating the same problems to include

any potential complications as those under review.

37. "Systemic change" means any modification of an agency’s or agency

delegate’s benefit determination policies and/or procedures that may

adversely affect beneficiaries, a group of providers, an entire specialty

provider type, a hospital, or a facility provider; or any agency’s or agency

delegate’s modification that may impact a significant portion of its

beneficiaries’ access to covered health care services, the availability of

care, or the quality and continuity of care.

38. "Therapeutic interchange" means the interchange or substitution of a drug

with a dissimilar chemical structure within the same therapeutic or

pharmacological class that can be expected to have similar outcomes and

similar adverse reaction profiles when given in equivalent doses, in

accordance with protocols approved by the president of the medical staff

or medical director and the director of pharmacy.

39. "Urgent health care services" includes those resources necessary to treat

a symptomatic medical, mental health, substance use, or other health care

condition that a prudent layperson, acting reasonably, would believe

necessitates treatment within a twentyfour (24) hour period of the onset of

such a condition in order that the patient's health status not decline as a

consequence. This does not include those conditions considered to be

emergent health care services as defined in this Part.

40. "Utilization review" or “nonadministrative review” means the prospective,

concurrent, or retrospective assessment of the medical necessity and/or

appropriateness of the allocation of health care services of a provider,

given or proposed to be given, to a beneficiary. Utilization review does not

include:

a. The therapeutic interchange of drugs or devices by a pharmacy

operating as part of a licensed inpatient health care facility; or

b. The assessment by a pharmacist licensed pursuant to the

provisions of R.I. Gen. Laws Chapter 519.1 and practicing in a

pharmacy operating as part of a licensed inpatient health care

facility, in the interpretation, evaluation and implementation of

Commented [KCD4]: Could you clarify whether this would include any of the following? This could be a very burdensome requirement, depending on how many of the items below can only be modified through the lengthy material modification process.

-Delegation of a Prior Auth program - Any new prior auth program - Any change/new reimbursement policy - Any change/new medical policy - Eliminating Fax programs - DME tiering program - Changes with formulary - Letter (appeal/preservice) changes

Commented [KCD5]: Could you clarify whether this definition includes “material” changes to Commercial fully insured initial adverse or appeal letter templates made due to RI deficiencies, audits, or legislative changes?

http://webserver.rilin.state.ri.us/Statutes/TITLE5/5-19.1/INDEX.HTM

UHC Public Comment

medical orders, including assessments and/or comparisons

involving formularies and medical orders.

41. "Utilization review plan" means a description of the standards governing

utilization review activities performed by a review agent.

14.4 General Requirements

A. A review agent must establish and submit to the Office standards and

procedures for its benefit determination activity that demonstrates compliance

with the Act and this Part to include administrative and nonadministrative benefit

determinations as defined in this Part. This shall be submitted through a

certification, recertification and material change process determined by the

Commissioner, including as set forth in this Part.

B. A review agent operating in Rhode Island shall provide evidence of adherence to

the following:

1. That it shall not conduct benefit determination reviews in the state unless

the Commissioner has granted the review agent a certificate pursuant to

the Act and this Part;

2. Individuals shall not be required to hold a separate review agent

certification under the Act or this Part when acting as either an employee

of, an affiliate of, a contractor for, or otherwise acting on behalf of a

certified review agent, however, the review agent shall be responsible for

these individuals in the same manner that the review agent is responsible

for its delegates under the Act and this Part;

3. Submission of a recertification application every two (2) years in form and

content consistent with instructions issued by the Office for that purpose;

4. Notification and explanation to the Office at least thirty (30) calendar days

prior to implementation of any systemic change to any of the certified

review agent’s operations to include the information on file with the Office;

5. Upon a determination by the Office that a systemic change constitutes a

material change, shall file an application consistent with instructions and

requests for information issued by the Office for that purpose; and

6. A systemic change determined by the Office to be a material change shall

not be implemented until receipt of written approval for the material

change by the Office.

Commented [KCD6]: These requirements exist in another regulation and they are sufficient to capture systemic changes related to review agents. We feel that including them here as well, is confusing and overly burdensome. We suggest that any duplicative requirements be deleted.

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C. A review agent applying for certification, recertification or material change

approval shall provide information to the Office sufficient to enable the Office to

evaluate compliance with the requirements of the Act and this Part according to

instructions issued as a guidance document by the Office for that purpose.

D. The cost of the application processes (certification, recertification, and material

change), application reviews, complaint processing, investigations, and other

activities related to obtaining and maintaining review agency certifications shall

be borne by the review agents, as determined by the Commissioner, including:

1. An application fee established by the Commissioner for each application

processed, not to exceed five hundred dollars ($500), which must

accompany each application.

2. Pursuant to R.I. Gen. Laws § 2718.93(h), the total cost of obtaining and

maintaining a certificate under this Act and in compliance with the

requirements of the applicable rules and regulations shall be borne by the

applicant and shall include one hundred and fifty percent (150%) of the

total salaries paid to the personnel engaged in certifications and ensuring

compliance with the requirements herein of this Part and the applicable

rules and regulations.

3. Pursuant to R.I. Gen. Laws § 2718.93(h), these monies shall be paid to

the Commissioner to and for the use of the Office and shall be in addition

to any taxes and fees otherwise payable to the state.

4. The Commissioner may not issue a certification, recertification, approval

of a material change, or may suspend a currently certified review agent, if

a review agent fails to pay any of the fees, assessments and costs noted

above in a timely manner.

E. Pursuant to R.I. Gen. Laws § 2718.93(e), a certificate issued under this Part is

not transferable, and the transfer of fifty percent (50%) or more of the ownership

of a review agent shall be deemed a transfer.

F. Review agents must maintain and submit to the Office its most current grievance

and complaint process that adheres to and includes the following minimal

requirements:

1. Written processes whereby the beneficiary, a beneficiary’s authorized

representatives, or health care providers may seek resolution of

complaints and grievances, and other matters, of which the review agent

has received oral or written notice;

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2. Reasonable timeframes for the resolution of beneficiary, authorized

representative of beneficiary, and provider complaints and grievances of

not more than thirty (30) calendar days from the date the review agent

receives the oral or written notice unless granted an extension by the

Commissioner;

3. A substantiation to the satisfaction of the Commissioner that there is

reasonable communication on an annual basis either directly or through

the health care entity to the network plan beneficiaries and providers that

explains the grievance and complaint process to include guidance for

distinguishing between a complaint/grievance and a benefit determination

appeal and the rights associated with each; and

4. Internal monitoring of complaints and grievances and reporting of

complaints and grievances in form and content consistent with instructions

issued by the Office for that purpose.

G. Each agency shall develop, implement and maintain a quality assurance program

that includes the agency’s oversight of all activities, whether or not delegated,

subject to the Act and this Part. This quality assurance program shall include a

process to regularly evaluate and determine whether the agency’s activities are

being performed in a manner that maintains the quality of services delivered to its

beneficiaries; and assures that the agency’s activities do not adversely affect the

delivery of covered services.

H. Each review agent shall cooperate with all compliance reviews and investigations

conducted by the Office.

I. Each review agent shall ensure that all applicable federal and state confidentiality

laws are followed.

14.5 Delegate Requirements

A. An agency must provide evidence to the Office of current state certification under

the Act for each of its delegates, if any, to which the agency has delegated

activity in accordance with this Part.

B. Each agency must maintain regular and meaningful oversight of each of its

delegates to ensure every such delegate is in compliance with the Act's

requirements, including but not limited to the following:

1. For any portion of the agency activity that is delegated, in part or whole,

the agency shall be responsible for oversight and be held accountable for

all activity delegated and for any noncompliance of its delegate with the

Act and this Part.

Commented [KCD7]: This is very subjective and provides no guidance on what the actual requirements are. Can we have more specific guidance on what is required? A regulation would be the suitable place to define the substantiation that would satisfy the Commissioner.

UHC Public Comment

2. Should the Commissioner determine that any delegated activity is non

compliant with this Part or other state and/or federal laws, the agency may

be required by the Commissioner to reassume or reassign the

performance of the activity delegated.

3. The agency shall ensure through its delegation agreement or contract that

it and the Office will have direct access to all the information held by the

delegate that in its or the Office's determination could contribute to

determining compliance with the Act and this Part as well as all other

applicable state and federal laws and regulations.

14.6 Benefit Determination General Requirements

A. Each review agent must submit to the Office its policies and procedures in

accordance with the Act that evidence adherence to the following:

1. The health care entity’s claims procedures will be considered to have

been followed by a claimant when a claimant makes a request for a

benefit determination that includes the claimant’s name, specific medical

condition or symptom and specific treatment, service, or product and

submits such information to the proper claim processing unit;

2. In the event of a failure by a claimant to follow the health care entity’s

claims procedures for a preservice claim or concurrent claim, the health

care entity or its review agent must comply with notification provisions in

accordance with R.I. Gen. Laws § 2718.95(a) and this Part.

a. For nonurgent and nonemergent preservice claims or concurrent

claims:

(1) Notify claimant in writing of this failure as soon as possible

and no later than five (5) calendar days following such

failure; and

(2) This notification must also inform claimant of the specific

claims procedures not complied with as well as the proper

procedures to file a preservice claim or concurrent claim.

b. Notwithstanding the above, if the preservice claim or concurrent

claim relates to urgent or emergent health care services:

(1) The health care entity or its review agent must notify and

inform claimant of the specific procedural failure and proper

procedures to file a preservice claim or concurrent claim

within twentyfour (24) hours following the failure; and

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(2) Notification may be oral, unless written notification is

requested by the claimant.

3. In accordance with R.I. Gen. Laws § 2718.94(a)(1), beneficiaries and

providers shall be provided with a summary of its benefit determination

review programs and adverse benefit determination criteria in a manner

acceptable to the Commissioner that includes a summary of the

standards, procedures, and methods to be used in evaluating proposed,

concurrent, or delivered health care services;

4. In accordance with R.I. Gen. Laws § 2718.94(a)(5), the requirement that

no employee of, or other individual rendering or recommending an

adverse benefit determination or appeal decision on behalf of the review

agent or health care entity may receive any financial or other incentives

based upon the number of denials of certification made by that employee

or individual;

5. In accordance with R.I. Gen. Laws § 2718.94(a)(6), the review agent has

not entered into an understanding, a compensation agreement or a

contract with its employees or agents whereby the compensation of its

employees or its agents is based, directly or indirectly, upon a reduction of

health care services or the charges for those services, a reduction of

lengths of stays, or the use of alternative treatment settings;

6. An adverse benefit determination and internal appeals process consistent

with R.I. Gen. Laws § 2718.94(a)(7) and acceptable to the Office,

whereby beneficiaries, authorized representatives, their physicians, or

other health care service providers may seek prompt reconsideration or

appeal of adverse benefit determinations by the review agent according to

all state and federal requirements;

7. In accordance with R.I. Gen. Laws § 2718.94(a)(8), the health care entity

or its relevant review agent has a mechanism to provide the claimant with

a description of its claims procedures and any procedures for obtaining

approvals as a prerequisite for obtaining a benefit or coverage for such

benefit. This description should, at a minimum, be placed in the summary

of benefits document and be available on the review agent's or the

relevant health care entity's website and upon request from the claimant;

and

8. All administrative benefit determination decisions and notifications shall be

made within a reasonable period of time, considering circumstances,

acceptable to the Commissioner. For utilization review determinations and

notifications refer to §§ 14.6(B) and (E) of this Part.

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B. In accordance with R.I. Gen. Laws Chapter 2718.9 and this Part, review agents

conducting utilization review shall comply with the following:

1. All initial, prospective, and concurrent nonadministrative adverse benefit

determinations of a health care service ordered by a physician, dentist, or

other professional practitioner shall be made, documented, and signed by

a licensed practitioner with the same licensure status as the ordering

provider.

2. Review agents conducting utilization review are not prohibited from

allowing appropriately qualified review agency staff from engaging in

discussions with the attending provider, in accordance with the following:

a. The attending provider or health care facility may designate other

individual(s) to speak on their behalf; and

b. Such a discussion may result in a voluntary modification of the

attending provider’s original request which shall not constitute an

adverse benefit determination provided the following occurred and

was documented by the review agent:

(1) The attending provider explicitly made a bona fide voluntary

agreement to a change in his/her original order and/or

explicitly made a bona fide voluntary agreement to an

alternative level of care; or

(2) The attending provider’s designee obtained and provided to

the review agent documented consent from the attending

provider that explicitly communicates the attending

provider’s bona fide voluntary agreement in accordance with

§ 14.6(B)(2)(b)((1)) of this Part above.

c. Such discussions shall not constitute a substitute for the required

equivalent twoway direct communication required by this Part.

3. A review agent shall not retrospectively deny authorization for health care

services provided to a beneficiary when an authorization had been

obtained for that service from the review agent unless:

a. The authorization was based upon inaccurate information

submitted to the review agent that was material to the review; or

b. The health care services were not provided consistent with the

provider's submitted plan of care and/or any material restrictions

clearly included in the prior approval granted by the review agent.

Commented [KCD8]: Could you clarify whether this applies during a peer to peer discussion on initial adverse determination?

Commented [KCD9]: Could you clarify whether this applies during a peer to peer discussion on initial adverse determination? Or is this intended to apply to intake staff communicating with the attending provider office staff to align the correct procedure (requiring prior auth) being reviewed?

Commented [KCD10]: Could you add subsection c. and include as a rational that member loses coverage; and a subsection d, to include fraud?

UHC Public Comment

4. A review agent shall comply with the following notification timeline

requirements in accordance with this Part:

a. For urgent or emergent health care service claims, benefit

determinations (adverse or nonadverse) shall be made;

(1) As soon as possible taking into account exigencies; and

(2) No later than seventytwo (72) hours after receipt of the

claim.

b. For concurrent claims;

(1) Benefit determinations (adverse or nonadverse) shall be

made no later than twentyfour (24) hours after receipt of the

claim; and

(2) Where the claim has been made to the agency at least

twentyfour (24) hours prior to the expiration of the relevant

period of time or number of treatments, benefit

determinations (adverse or nonadverse) shall be made no

later than twentyfour (24) hours after receipt of the claim

and prior to the expiration of the period of time or number of

treatments; and

(3) The agency must be available to conduct the concurrent

review twentyfour (24) hours in advance of the expiration of

the period of time or the number of treatments.

c. For preservice claims, benefit determinations (adverse or non

adverse) shall be made:

(1) Within a reasonable period of time appropriate to the

medical circumstances;

(2) Prior to the service being rendered; and

(3) No later than fifteen (15) calendar days after the receipt of

the claim, provided that;

(4) The above time parameters set forth in § 14.6(B)(4)(c)((3)) of

this Part may be extended for up to fifteen (15) additional

calendar days:

(AA) When substantiated as being required by special

circumstances; and

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(BB) When the claimant is noticed within the first fifteen

(15) calendarday period of the need for such

extension.

d. For postservice claims, benefit determinations (adverse or non

adverse) shall be made:

(1) No later than thirty (30) calendar days after the receipt of the

claim, provided that;

(2) The above time parameters set forth in § 14.6(B)(4)(d)((1))

of this Part may be extended for up to fifteen (15) additional

calendar days:

(AA) When substantiated as being required by special

circumstances; and

(BB) When the claimant is noticed within the first thirty (30)

calendar day period of the need for such extension.

5. In the event where there is insufficient information from a claimant for the

agency to make a utilization review determination, the agency shall

adhere to or ensure conditions in accordance with R.I. Gen. Laws § 27

18.96(a)(5) and this Part.

a. For urgent or emergent health care services to include preservice

and concurrent claims, the notice of insufficient information shall be

sent to the claimant as soon as possible and not later than the

timeframes set forth in R.I. Gen. Laws § 2718.96(a)(5).

b. For nonemergent preservice, concurrent and postservice claims,

the notice of insufficient information shall be sent to the claimant as

soon as possible and no later than the timeframes set forth in R.I.

Gen. Laws § 2718.96(a)(5)(ii).

c. In the event of insufficient information in a claim, timelines for

decisions and notifications set forth in §§ 14.6(B)(4) and (B)(5) of

this Part, are paused from the date on which the notice is sent to

the claimant and then restarted when the claimant responds to the

request for information.

C. A review agent’s utilization review policies shall include at a minimum the

requirements stated in R.I. Gen. Laws § 2718.94(b) and this Part.

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D. In accordance with R.I. Gen. Laws § 2718.97 and this Part, review agents

making utilization review decisions shall evidence to the Commissioner and

comply with the following:

1. The requirement that each review agent shall provide its clinical criteria to

the Office upon request;

2. Use written clinical criteria and review procedures established according

to nationally accepted standards, evidencebased medicine and protocols

that are periodically evaluated and updated or other reasonable standards

required by the Commissioner; and

3. Establish and employ a process to transparently incorporate and consider

local variations to national standards and criteria identified in this Part

including, without limitation, a process to incorporate input from local

participating providers. As used in this Part, a process to incorporate and

consider local variations to national standards and criteria shall mean a

process that:

a. Affirmatively and meaningfully solicits, tracks and reasonably

incorporates input from an objective, independent and diverse pool

of local providers, including local participating providers or their

representatives. Affirmative and meaningful solicitation shall

include, without limitation, notice to consumer advocacy groups,

healthcare professional associations and chronic disease

associations concerning clinical criteria relevant to their

organizations; and

b. Tracks and meaningfully considers input and information relevant to

clinical criteria received through benefit determination processes

and complaint and grievance processes.

4. Ensure meaningful and reasonably understandable updated descriptions

of clinical decision criteria are available to beneficiaries, providers, and the

Office upon request as well as readily available and accessible on the

health care entity’s or the review agent's website.

E. Review agent notifications form and content requirements:

1. Health care entities and review agents shall comply with form and content

notification requirements for adverse benefit determinations in accordance

with R.I. Gen. Laws § 2718.96(b) and this Part.

2. All review agent notification templates must be provided to the Office for

review and approval by the Commissioner.

Commented [KCD11]: Would OHIC incorporate language to allow carriers that use other entity’s proprietary medical policies (which we are not allowed to publicly post), to send the proprietary policies to providers or members upon request?

UHC Public Comment

14.7 Internal Appeal and Reconsideration Requirements

A. All internal appeal and reconsideration requirements shall follow procedures in

accordance with R.I. Gen. Laws § 2718.97 and this Part.

B. All review agents shall conform and evidence to the Commissioner the following

for the internal appeal of administrative and nonadministrative (utilization review)

adverse benefit determinations:

1. The review agent shall maintain and make available a written description

of its appeal procedures by which the claimant may seek review of

determinations not to authorize health care services.

2. The process established by each review agent shall include a reasonable

time period within which an appeal must be filed to be considered and that

time period shall not be less than one hundred eighty (180) calendar days

after receipt of the adverse benefit determination notice.

3. During the appeal, a review agent may utilize a reconsideration process

acceptable to the Commissioner in assessing an adverse benefit

determination. A reconsideration process for utilization review benefit

determinations must also comply with the requirements set forth in §

14.7(C) of this Part.

4. The review agent shall notify the claimant of the reconsideration or internal

appeal determination consistent with the form and content requirements

set forth in R.I. Gen. Laws § 2718.96(b) and § 14.6(E) of this Part, as

appropriate.

C. When a review agent adopts a policy to incorporate a process to perform a

reconsideration to assess an adverse benefit determination, it must comply with

the following:

1. Perform the reconsideration during the appeals process timelines;

2. Apply the reconsideration process to all adverse benefit determinations

made by the review agent; and

3. The reconsideration process shall be applied in a nonarbitrary manner.

D. Prior to a final internal appeal decision, the review agent must:

1. Inform the claimant of the opportunity to review the entire adverse

determination and appeal file;

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2. Inform the claimant of the opportunity to present evidence and/or

additional information as part of the internal appeal process; and

3.. Inform the claimant of, and allow the claimant, a reasonable period of

time, acceptable to the Commissioner in practice and application, to

review the entire adverse determination and appeal file and/or to submit

additional evidence or information.

E. Pursuant to R.I. Gen. Laws § 2718.97(a)(5), a review agent is only entitled to

request and review information or data relevant to the benefit determination and

utilization review processes.

F. The review agent shall maintain records of written adverse benefit

determinations, reversals of adverse benefit determinations occurring outside of

the appeal process, reconsiderations, appeals and their resolution, and shall

provide reports to the Office upon request and pursuant to § 14.9 of this Part.

G. For administrative appeals the review agent shall notify, in writing, the claimant of

its decision:

1. As soon as practical considering circumstances;

2. In no case later than thirty (30) calendar days after receipt of the request

for review of an adverse benefit determination for preservice claims; and

3. In no case later than sixty (60) days after receipt of the request for review

of an adverse benefit determination for postservice claims.

H. For nonurgent or nonemergent utilization review appeals, the review agent shall

notify, in writing, the claimant of its decision on the utilization review internal

appeal:

1. As soon as practical considering medical circumstances; and

2. Within thirty (30) calendar days after receipt of the request for the review

of an adverse benefit determination; or

3. Within fortyfive (45) calendar days after receipt of the request for the

review of an adverse benefit determination only when the review agent

documents that the claimant has requested an extension in order to

submit additional information or the carrier substantiates and informs the

claimant of the need to obtain additional information in order to make its

appeal decision.

Commented [KCD12]: We suggest OHIC provide a specific time frame, such as 90 days, within which we must comply, rather than applying a non-specific time frame like “acceptable to the Commissioner.” All carriers should be made aware of the time frame and all should be held to the same time frame.

UHC Public Comment

I. The review agent shall also provide for an expedited appeal process that takes

into consideration medical exigencies according to the following:

1. Urgent and emergent status of a claim shall be determined by the ordering

provider or the review agent, and a review agent must honor a

determination of urgent or emergent status by an ordering provider; and

2. Adjudication of expedited appeals, including notification to the claimant of

its decision on the appeal, not later than seventytwo (72) hours after

receipt of the claimant's request for the appeal of an adverse benefit

determination.

J. Pursuant to R.I. Gen. Laws § 2718.97(a)(9), benefits for an ongoing course of

treatment cannot be reduced or terminated without providing advance notice and

an opportunity for advance review. In addition, the review agent or health care

entity shall be required to continue coverage pending the outcome of an appeal.

K. For the appeal of a utilization review adverse benefit determination decision for a

drug that is not on the formulary, the review agent shall complete the internal

appeal determination and notify the claimant of its determination:

1. No later than seventytwo (72) hours following receipt of the appeal

request; or

2. No later than twentyfour (24) hours following the receipt of the appeal

request in cases where the beneficiary is suffering from a health condition

that may seriously jeopardize the beneficiary's life, health, or ability to

regain maximum function, with deference given to any such determination

by the ordering provider, or when a beneficiary is undergoing a current

course of treatment using a nonformulary drug; and

3. If approved on internal appeal, coverage of the nonformulary drug must

be provided for the duration of the prescription, including refills unless

expedited pursuant to § 14.7(J)(2), in which case for the duration of the

exigency.

L. Pursuant to R.I. Gen. Laws § 2718.97(b)(1), a claimant is deemed to have

exhausted the internal appeal process when the review agent conducting

utilization review or health care entity fails to strictly adhere to all benefit

determination and appeal processes with respect to a claim.

M. Peer reviewers under § 14.7 of this Part, who made the adverse benefit

determination or reconsideration decisions for the case under appeal or who

have participated in the direct care of the beneficiary, may not participate in

reviewing the case under appeal.

Commented [KCD13]: This seems ripe for abuse as written – essentially a provider could deem every case as “urgent” or “emergent” with no check against an objective or reasonableness standard or any consequence for such abuse of discretion. Contrast with K.2. below on this page where there is deference given to the determination of the provider but there should be some tie to generally accepted definitions of urgent or emergent care which could be applied here.

Commented [KCD14]: Can you clarify whether a carrier may change the request from expedited to a standard (non-urgent) request, if it does not meet the expedited criteria?

UHC Public Comment

N. Internallevel appeals decisions of utilization review determinations not to

authorize a health care service that had been ordered by a physician, dentist, or

other provider, shall be not be made until the review agent's peer reviewer with

the same licensure status as typically manages the condition, procedure,

treatment, or requested service under discussion has spoken to, or conducted,

an equivalent twoway, direct communication with the beneficiary's attending

physician, dentist, other professional provider, or other qualified professional

provider responsible for the treatment of the beneficiary concerning the services

under review.

O. When a utilization review determination is made on internal appeal or

reconsideration, including determinations with regard to whether a particular

service, treatment, drug, or other item is experimental, investigational or not

medically necessary or appropriate, the review agent must adhere to the

following:

1. All adverse reconsideration decisions must be made by a peer reviewer;

2. The peer reviewer making the appeal decision shall be appropriately

trained having the same licensure status as the ordering provider or be a

physician or dentist as appropriate;

3. The peer reviewer making the appeal decision shall be an individual in the

same or similar specialty as typically manages the condition;

4. The review agent must provide the qualifications of the peer reviewer(s) to

the claimant upon request; and

5. The review agency’s peer reviewers making the reconsideration and

internal appeal decisions must document and sign their decisions.

P. The review agent conducting utilization review must ensure that the appropriate

peer reviewer making the internal appeal decision is reasonably available to

review the case and must conform to the following:

1. Each peer reviewer shall have access to and review all necessary

information requested by the agency and/or submitted by the provider(s)

and/or claimant; and

2. Each agency shall provide accurate peer reviewer contact information to

the ordering provider at the outset of the utilization review process as well

as promptly upon request. In order to ensure direct communication, this

contact information must provide a mechanism for direct communication

with the peer reviewer.

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3. Peer reviewers making an internal appeal decision shall respond to and

reasonably accommodate a provider's request for the equivalent twoway,

direct communication required by law prior to the internal level of appeal

decision, as well as any additional provider request for a twoway direct

communication with a peer reviewer in accordance with R.I. Gen. Laws §§

2718.97(b)(4) and 2718.97(b)(5) and this Part.

a. Repeated violations of this section shall be deemed to be

substantial violations pursuant to R.I. Gen. Laws §§ 2718.913 and

2718.914 and shall be cause for the imposition of penalties under

these sections.

14.8 External Appeal of NonAdministrative Benefit Determinations

Requirements

A. In the cases where the utilization review adverse benefit determination or the

final internal level of appeal to reverse a utilization review adverse benefit

determination is unsuccessful, the health care entity or review agent shall provide

for an external appeal by an independent review organization (IRO) approved by

the Commissioner and ensure that the external appeal complies with all

applicable laws, regulations, and the Office’s instructions.

B. In order to seek an external appeal;

1. The claimant must have exhausted the internal appeal process; and

2. The claimant is deemed to have exhausted the internal appeal process

when the review agent or health care entity fails to strictly adhere to all

benefit determination and appeal processes with respect to a claim; or

3. The claimant has applied for expedited external review at the same time

as applying for expedited internal review.

C. R.I. Gen. Laws § 2718.98(a)(3), a claimant shall have at least four (4) months

after receipt of a notice of the decision on a final internal appeal to request an

external appeal by an IRO.

D. Health care entities and review agent must use a rotational IRO registry process

specified by the Commissioner.

E. Pursuant to R.I. Gen. Laws § 2718.98(a)(5), a claimant requesting an external

appeal may be charged no more than a twentyfive dollar ($25.00) external

appeal fee by the review agent. The external appeal fee, if charged, must be

refunded to the claimant if the adverse benefit determination is reversed through

external review. The external appeal fee must be waived if payment of the fee

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would impose an undue financial hardship on the beneficiary. In addition, the

annual limit on external appeal fees for any beneficiary within a single plan year

(in the individual market, within a policy year) must not exceed seventyfive

dollars ($75.00).

F. A claimant requesting an external appeal of an excepted benefit as defined in 42

U.S.C. § 300gg91(c), may be charged no more than a fifty dollar ($50.00)

external appeal fee by the review agent. The external appeal fee, if charged,

must be refunded to the claimant if the adverse benefit determination is reversed

through external review. The external appeal fee must be waived if payment of

the fee would impose an undue financial hardship on the beneficiary. In addition,

the annual limit on external appeal fees for any beneficiary within a single plan

year (in the individual market, within a policy year) must not exceed onehundred

and fifty dollars ($150.00).

G. Pursuant to R.I. Gen. Laws § 2718.98(a)(6), the IRO and/or the review agent

and/or the health care entity may not impose a minimum dollar amount of a claim

for a claim to be eligible for external review by an IRO.

H. Pursuant to R.I. Gen. Laws § 2718.98(a)(7), the decision of the external appeal

by the IRO shall be binding on the health care entity and/or review agent;

however, any person who is aggrieved by a final decision of the external appeal

agency is entitled to judicial review in a court of competent jurisdiction.

I. Pursuant to R.I. Gen. Laws § 2718.98(a)(8), the health care entity must provide

benefits (including making payment on the claim) pursuant to an external review

decision without delay.

J. Pursuant to R.I. Gen. Laws § 2718.98(a)(9), the Commissioner shall determine

the process and criteria for designation, operation, policy, oversight, and

termination of designation as an IRO. The IRO shall not be required to be

certified under the Act or these regulations for activities conducted pursuant to its

designation.

K. The health care entity and the review agent must ensure that the external appeal

process shall include, but not be limited to, the following characteristics:

1. The claimant must receive from the review agent, within at least five (5)

business days of the request for an external appeal, a notice that their

request has been forwarded to the independent review organization (IRO).

The notice shall include a description of the process for the claimant to

submit additional information to the IRO within five (5) business days of

receipt of this notification.

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2. Pursuant to R.I. Gen. Laws § 2718.98(b)(2), the IRO must notice the

claimant of its external appeal decision to uphold or overturn the review

agency decision:

a. No more than ten (10) calendar days from receipt of all the

information necessary to complete the external review and no more

than fortyfive (45) calendar days after the receipt of the request for

external review; and

b. In the event of an expedited external appeal by the IRO for urgent

or emergent health care services, as expeditiously as possible

considering exigencies and no more than seventytwo (72) hours

after the receipt of the request for the external appeal by the IRO.

L. When a utilization review determination is made on external appeal, including

determinations with regard to whether a particular service, treatment, drug, or

other item is experimental, investigational or not medically necessary or

appropriate, the IRO must adhere to the following:

1. All adverse reconsideration decisions must be made by a peer reviewer;

2. The external appeal reviewer making the external appeal decision shall be

appropriately trained having the same licensure status as the ordering

provider or be a physician or dentist as appropriate;

3. The external appeal reviewer making the external appeal decision shall be

an individual in the same or similar specialty as typically manages the

condition;

4. The IRO must provide the qualifications of the external appeal reviewer(s)

to the claimant upon request; and

5. The external appeal reviewers making the external appeal decisions must

document and sign their decisions.

M. For an external appeal of an internal appeal decision of a nonformulary drug, the

health care entity and the review agent must ensure that the IRO completes the

external appeal determination and notifies the claimant of its determination:

1. No later than seventytwo (72) hours following receipt of the external

appeal request; or

2. If the original request or appeal was an expedited request, as soon as

possible taking into account exigencies and no later than twentyfour (24)

hours following the receipt of the external appeal request; and

UHC Public Comment

3. If approved on external appeal, coverage of the nonformulary drug must

be provided for the duration of the prescription, including refills, unless

expedited then for the duration of the exigencies.

N. A health care entity and review agent must ensure that the IRO adheres to the

external appeal decision notifications in accordance with R.I. Gen. Laws § 27

18.98(c) and this Part.

14.9 Reporting

A. Each agency shall compile and maintain reports in form and content consistent

with instructions issued as a bulletin by the Office for that purpose and these

reports shall:

1. Include but not be limited to a report that includes all utilization review

benefit determinations made by the agency and its delegates (if

applicable), broken down by procedural categories set forth by the Office,

which categories may change from time to time at the discretion of the

Commissioner; and

2. Be filed with the Office according to the Office’s instructions, no more

frequently than quarterly.

B. Each agency shall promptly comply with periodic requests by the Commissioner

and/or the Office for information, data and/or reports requested for the purpose of

determining compliance with the Act, this Part, and any applicable federal laws or

regulations relating to the Act.

14.10 Waiver of Requirements

A. The Office shall waive the requirements of the Act or this Part only when the

Commissioner has determined a conflict exists with those activities of a review

agent that are conducted pursuant to contracts with the state or the federal

government or those activities under other state or federal jurisdictions.

B. The Office shall waive de minimus activity as determined by the Commissioner.

14.11 Variance Requirements

Statutory variances are governed by R.I. Gen. Laws § 2718.912.

14.12 Denial, Suspension, or Revocation of Certification

Denial, suspension, or revocation or certification is governed by R.I. Gen. Laws §

2718.913.

Commented [KCD15]: What is meant by “procedural categories?”

Commented [KCD16]: Reporting is a complicated and time consuming practice. Carriers need defined reporting parameters rather than a process that can change “from time to time.” Carriers also need significant advance notice so that we can properly capture the requested information. We suggest OHIC provide a higher level of detail on the reporting obligation so that carriers can plan for it and so that the same rules are applied consistently to all carriers. Any revised reporting requirements should be subject to notice and comment.

Commented [KCD17]: Can the expected frequency of the reports be defined? We will need to determine the internal process for collecting reports from each ‘procedural category’, as well as the formal state submission process.

UHC Public Comment

14.13 Penalties and Enforcement

Penalties and enforcement are governed by R.I. Gen. Laws § 2718.914.

14.14 Severability

If any section, clause, provision or application of the Act or this Part shall be held

either unconstitutional or ineffective in whole or in part, to the extent that it is not

unconstitutional or ineffective, it shall be valid and effective, and no other section,

clause, provision or application shall on account thereof be termed invalid or

ineffective.

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