WSR 16-23-168 PERMANENT RULES OFFICE OF INSURANCE COMMISSIONER [Insurance Commissioner Matter No. R 2016-17—Filed November 23, 2016, 11:55 a.m., effective January 1, 2017] Effective Date of Rule: January 1, 2017.
Purpose: HB 2326, passed in 2016, requires that by January 1, 2017, the regulatory authority over independent review organizations (IRO) be transferred from department of health (DOH) to the office of the insurance commissioner (OIC). The legislation requires that rules be adopted providing procedure and criteria for certifying IROs by taking into consideration rules adopted by DOH that regulate IROs. The rules adopted must require IROs to report decisions and associated information directly to OIC via the commissioner's online data base. As part of this process, we've created a new chapter, chapter 284-43A WAC, and moved IRO related chapters from chapter 284-43 WAC and rule language from DOH into the new chapter.
Citation of Existing Rules Affected by this Order: Repealing WAC 284-43-3210 and 284-43-4060; and amending WAC 284-43-3010, 284-43-4000, 284-43-4040, and 284-43-5900.
Adopted under notice filed as WSR 16-21-068 on October 17, 2016.
A final cost-benefit analysis is available by contacting Stacy Middleton, P.O. Box 40258, Olympia, WA 98504, phone (360) 725-9651, fax (360) 586-3109, e-mail rulescoordinator@oic.wa.gov.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 16, Amended 4, Repealed 2.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 16, Amended 4, Repealed 2.
Date Adopted: November 23, 2016.
Mike Kreidler
Insurance Commissioner
AMENDATORY SECTION (Amending WSR 16-14-106, filed 7/6/16, effective 8/6/16)
WAC 284-43-3010 Definitions.
These definitions apply to the sections in this subchapter, WAC 284-43-3030 through ((284-43-3210)) 284-43-3190 and 284-43A-140:
"Adverse benefit determination" has the same meaning as defined in RCW 48.43.005 and WAC 284-43-0160.
"Appellant" means an applicant or a person covered as an enrollee, subscriber, policy holder, participant, or beneficiary of an individual or group health plan, and when designated, their representative. Consistent with the requirements of WAC 284-43-2000, providers seeking expedited review of an adverse benefit determination on behalf of an appellant may act as the appellant's representative even if the appellant has not formally notified the health plan or carrier of the designation.
"External appeal or review" means the request by an appellant for an independent review organization to determine whether the carrier or health plan's internal appeal decisions are correct.
"Internal appeal or review" means an appellant's request for a carrier or health plan to review and reconsider an adverse benefit determination.
AMENDATORY SECTION (Amending WSR 16-14-106, filed 7/6/16, effective 8/6/16)
WAC 284-43-4000 Application of subchapter F.
Subchapter F applies to grandfathered health plans. For any grandfathered health plan as defined in RCW 48.43.005, a carrier may comply with RCW 48.43.530 and 48.43.535 by using an appeal process that conforms to the procedures and standards set forth in WAC 284-43-4020 through ((284-43-4060)) 284-43-4040 and 284-43A-150.
AMENDATORY SECTION (Amending WSR 16-14-106, filed 7/6/16, effective 8/6/16)
WAC 284-43-4040 Procedures for review and appeal of adverse determinations.
(1) An enrollee or the enrollee's representative, including the treating provider (regardless of whether the provider is affiliated with the carrier) acting on behalf of the enrollee may appeal an adverse determination in writing. The carrier must reconsider the adverse determination and notify the enrollee of its decision within fourteen days of receipt of the appeal unless the carrier notifies the enrollee that an extension is necessary to complete the appeal; however, the extension cannot delay the decision beyond thirty days of the request for appeal, without the informed, written consent of the enrollee.
(2) Whenever a health carrier makes an adverse determination and delay would jeopardize the enrollee's life or materially jeopardize the enrollee's health, the carrier shall expedite and process either a written or an oral appeal and issue a decision no later than seventy-two hours after receipt of the appeal. If the treating health care provider determines that delay could jeopardize the enrollee's health or ability to regain maximum function, the carrier shall presume the need for expeditious review, including the need for an expeditious determination in any independent review under WAC ((284-43-4060)) 284-43-4040 and 284-43A-150.
(3) A carrier may not take or threaten to take any punitive action against a provider acting on behalf or in support of an enrollee appealing an adverse determination.
(4) Appeals of adverse determinations shall be evaluated by health care providers who were not involved in the initial decision and who have appropriate expertise in the field of medicine that encompasses the enrollee's condition or disease.
(5) All appeals must include a review of all relevant information submitted by the enrollee or a provider acting on behalf of the enrollee.
(6) The carrier shall issue to affected parties and to any provider acting on behalf of the enrollee a written notification of the adverse determination that includes the actual reasons for the determination, the instructions for obtaining an appeal of the carrier's decision, a written statement of the clinical rationale for the decision, and instructions for obtaining the clinical review criteria used to make the determination.
AMENDATORY SECTION (Amending WSR 16-14-106, filed 7/6/16, effective 8/6/16)
WAC 284-43-5900 Effective date.
The effective date of WAC 284-43-0160, 284-170-200, 284-170-360, 284-43-2000, 284-43-4020, 284-43-4040, ((284-43-4060, and)) 284-43-5130, and 284-43A-150 is July 1, 2001.
REPEALER
The following sections of the Washington Administrative Code are repealed:
Chapter 284-43A WAC
INDEPENDENT REVIEW ORGANIZATIONS (IROs) SUBCHAPTER A
GENERAL PROVISIONS
NEW SECTION
WAC 284-43A-001 Purpose and scope.
(1) Purpose. These rules are adopted by the Washington state office of the insurance commissioner to implement the provisions of RCW 48.43.535 regarding the certification and requirements of independent review organizations (IROs) and requirements for carriers referring review of adverse benefit determinations to IROs. Certified IROs are qualified to receive referrals from the commissioner or designee under RCW 48.43.535 to make binding determinations related to health care coverage and payment disputes between health insurance carriers and their enrollees.
(2) Other applicable rules. Independent review is also subject to rules of the commissioner implementing RCW 48.43.535.
(3) Applicability. These rules apply to independent review cases originating in Washington state under RCW 48.43.535, and to independent review organizations conducting these reviews.
NEW SECTION
WAC 284-43A-010 Definitions.
The definitions in this section apply throughout the chapter unless the context clearly requires otherwise.
(1) "Adverse benefit determination" has the same meaning as defined in RCW 48.43.005 and includes:
(a) The determination includes any decision by a health carrier's designee utilization review organization that a request for a benefit under the health carrier's health benefit plan does not meet the health carrier's requirements for medical necessity, appropriateness, health denied, reduced, or terminated or payment is not provided or made, in whole or in part for the benefit;
(b) The denial, reduction, termination, or failure to provide or make payment, in whole or in part, for a benefit based on a determination by a health carrier or its designee utilization review organization of a covered person's eligibility to participate in the health carrier's health benefit plan;
(c) Any prospective review or retrospective review determination that denies, reduces, or terminates or fails to provide or make payment in whole or in part for a benefit;
(d) A rescission of coverage determination; or
(e) A carrier's denial of an application for coverage.
(2) "Appellant" means an applicant or a person covered as an enrollee, subscriber, policyholder, participant, or beneficiary of an individual or group health plan, and when designated, their representative, as defined in WAC 284-43-3010. Consistent with the requirements of WAC 284-43-3170, providers seeking expedited review of an adverse benefit determination on behalf of an appellant may act as the appellant's representative even if the appellant has not formally notified the health plan or carrier of the designation.
(3) "Applicant" means a person or entity seeking to become a Washington certified independent review organization (IRO).
(4) "Attending provider" includes "treating provider" or "ordering provider" as used in WAC 284-43-4040 and 284-43-4060.
(5) "Carrier" or "health carrier" has the same meaning in this chapter as in WAC 284-43-0160(14).
(6) "Case" means a dispute relating to a carrier's decision to deny, modify, reduce, or terminate coverage of or payment for health care service for an enrollee, which has been referred to a specific IRO by the insurance commissioner under RCW 48.43.535.
(7) "Clinical peer" means a physician or other health professional who holds an unrestricted license or certification and is in the same or similar specialty as typically manages the medical condition, procedures, or treatment under review. Generally, as a peer in a similar specialty, the individual must be in the same profession, i.e., the same licensure category, as the attending provider. In a profession that has organized, board-certified specialties, a clinical peer generally will be in the same formal specialty.
(8) "Clinical reviewer" means a medical reviewer, as defined in this section.
(9) "Conflict of interest" means violation of any provision of WAC 284-43A-050 including, but not limited to, material familial, professional and financial affiliations.
(10) "Contract specialist" means a reviewer who deals with interpretation of health plan coverage provisions. If a clinical reviewer is also interpreting health plan coverage and contract provisions, that reviewer shall have the qualifications required of a contract specialist and clinical reviewer.
(11) "Commissioner" means the Washington state insurance com-missioner.
(12) "Enrollee" or "covered person" means an individual covered by a health plan including a subscriber, a policyholder, or beneficiary of a group plan, as defined in WAC 284-43-0160(5); means an "appellant" as defined in WAC 284-43-3010; and also means a person lawfully acting on behalf of the enrollee including, but not limited to, a parent or guardian.
(13) "Evidence-based standard" means the conscientious, explicit, and judicious use of the current best evidence based on the overall systematic review of the research in making decisions about the care of individual patients.
(14) "Health care provider" or "provider" as used in WAC 284-43-0160 (13)(a) and (b), means:
(a) A person regulated under Title 18 RCW or chapter 70.127 RCW, to practice health or health-related services or otherwise practicing health care services in this state consistent with state law; or
(b) An employee or agent of a person described in (a) of this subsection, acting in the course and scope of his or her employment.
(15) "Independent review" means the process of review and determination of a case referred to an IRO under RCW 48.43.535.
(16) "Independent review organization" or "IRO" means an entity certified by the commissioner under this chapter.
(17) "Material familial affiliation" means any relationship as a spouse, child, parent, sibling, spouse's parent, or child's spouse.
(18) "Material professional affiliation" includes, but is not limited to, any provider-patient relationship, any partnership or employment relationship, or a shareholder or similar ownership interest in a professional corporation.
(19) "Material financial affiliation" means any financial interest including employment, contract or consultation which generates more than five percent of total annual revenue or total annual income of an IRO or an individual director, officer, executive or reviewer of the IRO. This includes a consulting relationship with a manufacturer regarding technology or research support for a specific product.
(20) "Medical reviewer" means a physician or other health care provider who is assigned to an external review case by a certified IRO, consistent with this chapter.
(21) "Medical, scientific, and cost-effectiveness evidence" means published evidence on results of clinical practice of any health profession which complies with one or more of the following requirements:
(a) Peer-reviewed scientific studies published in or accepted for publication by medical and mental health journals that meet nationally recognized requirements for scientific manuscripts and that submit most of their published articles for review by experts who are not part of the editorial staff;
(b) Peer-reviewed literature, biomedical compendia, and other medical literature that meet the criteria of the National Institute of Health's National Library of Medicine for indexing in Index Medicus, Excerpta Medicus (EMBASE), Medline, and MEDLARS data base Health Services Technology Assessment Research (HSTAR);
(c) Medical journals recognized by the Secretary of Health and Human Services, under Section 1861 (t)(2) of the federal Social Security Act;
(d) The American Hospital Formulary Service-Drug Information, the American Medical Association Drug Evaluation, the American Dental Association Accepted Dental Therapeutics, and the United States Pharmacopoeia-Drug Information;
(e) Findings, studies, or research conducted by or under the auspices of federal government agencies and nationally recognized federal research institutes including the Federal Agency for Healthcare Research and Quality, National Institutes of Health, National Cancer Institute, National Academy of Sciences, Centers for Medicare and Medicaid Services, Congressional Office of Technology Assessment, and any national board recognized by the National Institutes of Health for the purpose of evaluating the medical value of health services;
(f) Clinical practice guidelines that meet Institute of Medicine criteria; or
(g) In conjunction with other evidence, peer-reviewed abstracts accepted for presentation at major scientific or clinical meetings.
(22) "Referral" means receipt by an IRO of notification from the insurance commissioner or designee that a case has been assigned to that IRO under provisions of RCW 48.43.535.
(23) "Reviewer" or "expert reviewer" means a clinical reviewer or a contract specialist, as defined in this section.
SUBCHAPTER B
CERTIFICATION AND REQUIREMENTS FOR INDEPENDENT REVIEW ORGANIZATIONS (IROs)
NEW SECTION
WAC 284-43A-020 General requirements for certification.
In order to qualify for certification, an IRO shall:
(1) Submit an application for certification to the commissioner as described in RCW 48.43.537.
(2) Hold a current accreditation from a nationally recognized private accrediting organization acceptable to the federal Department of Health and Human Services or Department of Labor for the federal external review process.
(3) Demonstrate expertise and a history of reviewing health care in terms of medical necessity, appropriateness, and application of other health plan coverage and contract provisions.
(4) Demonstrate the ability to handle a full range of review cases, including contract provisions, occurring in Washington state. Certified IROs may contract with more specialized review organizations; however, the certified IRO shall ensure that each review conducted meets all the requirements of this chapter.
(5) Demonstrate capability to review administrative and contractual coverage issues, as well as medical necessity and effectiveness, and the appropriateness of experimental and investigational treatments.
(6) Comply with all conflict of interest provisions in WAC 284-43A-050.
(7) Maintain and assign qualified expert reviewers in compliance with WAC 284-43A-060.
(8) Conduct reviews, reach determinations and document determinations consistent with WAC 284-43A-040 through 284-43A-090.
(9) Maintain administrative processes and capabilities in compliance with WAC 284-43A-040.
NEW SECTION
WAC 284-43A-030 Application for certification as an IRO.
(1) To be certified as an IRO under this chapter, an organization must make an application to the commissioner upon a form to be furnished by the commissioner as required under RCW 48.43.537 and submitted using the commissioner's online service. The application must include or be accompanied by the following:
(a) An attestation on the form required by the commissioner, signed by a company officer, certifying that all requirements within RCW 48.43.537 and this chapter will be met;
(b) Evidence of current accreditation from a nationally recognized private accrediting organization acceptable to the federal Department of Health and Human Services or Department of Labor for the federal external review process;
(i) Applicants shall authorize release of information from primary sources, including full reports of site visits, inspections, and audits; and
(ii) The commissioner may require the applicant to indicate which documents demonstrate compliance with specific Washington state certification requirements under this chapter.
(c) Other documentation including, but not limited to, legal and financial information, policies and procedures, and data that are pertinent to requirements of this chapter; and
(d) Any other pertinent information required by the commissioner.
(2) Commissioner investigation and verification activities regarding the applicant may include, but are not limited to:
(a) Review of application and filings for completeness and compliance with standards;
(b) Primary-source verification with accreditation or regulatory bodies of compliance with requirements which are used to demonstrate compliance with certain standards in this chapter;
(c) Other means of determining regulatory and accreditation histories; and
(d) Exercising any power of the commissioner under WAC 284-43A-110.
NEW SECTION
WAC 284-43A-040 Administrative processes and capabilities of IROs.
(1) An IRO shall maintain written policies and procedures covering all aspects of review.
(2) An IRO shall ensure the confidentiality of medical records and other personal health information received for use in independent reviews, in accordance with applicable federal and state laws.
(3) An IRO shall have a quality assurance program that ensures the timeliness, quality of review, and communication of determinations to enrollees and carriers. The quality assurance program must ensure the qualifications, impartiality, and freedom from conflict of interest of the organization, its staff, and expert reviewers.
(a) The quality assurance program must include a written plan addressing scope and objectives, program organization, monitoring and oversight mechanisms, and evaluation and organizational improvement of IRO activities.
(b) Quality of reviews includes use of appropriate methods to match the case, confidentiality, and systematic evaluation of complaints for patterns or trends. Complaints must be recorded, including the nature of the complaint and the resolution. The commissioner may examine the complaint records.
(c) Organizational improvement efforts must include the implementation of action plans to improve or correct identified problems, and communication of the results of action plans to staff and reviewers.
(4) An IRO shall maintain case logs and case files with full documentation of referrals, reviewers, questions posed, information considered (including sources of the information and citations of studies or criteria), determinations and their rationale, communication with parties in the dispute including notices given, and key dates in the process, for at least six years following the review.
(5) An IRO shall maintain a training program for staff and expert reviewers, addressing at least:
(a) Confidentiality;
(b) Neutrality and conflict of interest;
(c) Appropriate conduct of reviews;
(d) Documentation of evidence for determination; and
(e) In the case of contract specialists, principles of health contract law and any provisions of Washington state law determined to be essential.
(6) An IRO shall maintain business hours, methods of contact (including by telephone), procedures for after-hours requests, and other relevant procedures to ensure timely availability to conduct expedited as well as regular reviews.
(7) An IRO shall not disclose reviewers' identities. The commissioner will not require reviewers' identities as part of the certification application process, but may examine identified information about reviewers as part of enforcement activities.
(8) An IRO shall promptly report any attempt at interference by any party, including a state agency, to the commissioner.
(9) An IRO shall have a medical director who holds a current unrestricted license as a medical doctor or osteopathic physician and has had experience in direct patient care. The medical director shall provide guidance for clinical aspects of the independent review process and oversee the IRO's quality assurance and credentialing programs.
NEW SECTION
WAC 284-43A-050 Conflict of interest.
(1) An IRO:
(a) Must not be a subsidiary of, or in any way owned or controlled by, a carrier or an association of health care providers or carriers;
(b) Shall provide information to the commissioner on its own organizational affiliations and potential conflicts of interest at the time of application and when material changes occur;
(c) Shall immediately turn down a case referred by the commissioner if accepting it would constitute an organizational conflict of interest; and
(d) Shall ensure that reviewers are free from any actual or potential conflict of interest in assigned cases.
(2) An IRO, as well as its reviewers, must not have any material familial, professional, or financial affiliation, as defined in WAC 284-43A-010, with the health carrier, enrollee, enrollee's provider, that provider's medical or practice group, the facility at which the service would be provided, or the developer or manufacturer of a drug or device under review. An affiliation with any director, officer or executive of an IRO must be considered to be an affiliation with the IRO.
(3) The following do not constitute violations of this section:
(a) Staff affiliation with an academic medical center or National Cancer Institute-designated clinical cancer research center;
(b) Staff privileges at a health care facility;
(c) Maintaining a provider contract with a carrier which provides no more than five percent of the provider's or clinical group's annual revenue; or
(d) An IRO's receipt of a carrier's payment for independent re-views assigned by the commissioner under RCW 48.43.535.
(4) Notwithstanding the provisions of subsection (3) of this section, a potential reviewer must be considered to have a conflict of interest with regard to a facility or health plan, regardless of revenue from that source, if the potential reviewer is a member of a standing committee of: The facility, the health plan, or a provider network that contracts with the health plan.
(5) A conflict of interest may be waived only if both the enrollee and the health plan agree in writing after receiving full disclosure of the conflict, and only if:
(a) The conflict involves a reviewer, and no alternate reviewer with necessary special expertise is available; or
(b) The conflict involves an IRO and the commissioner determines that seeking a waiver of conflict is preferable to reassigning the review to a different IRO.
NEW SECTION
WAC 284-43A-060 Expert reviewers.
(1) Each IRO shall maintain an adequate number and range of qualified expert reviewers in order to:
(a) Make determinations regarding the full range of independent review cases occurring in Washington state under RCW 48.43.535; and
(b) Meet timelines specified in WAC 284-43A-070(3) including those for expedited review.
(2) All reviewers must be health care providers with the exception of contract specialists.
(3) IROs shall maintain policies and practices that assure that all clinical reviewers:
(a) Hold a current, unrestricted license, certification, or registration in Washington state, or current, unrestricted credentials from another state with substantially comparable requirements, as determined by the department of health and outlined in the current edition of the department of health publication, Health Care Professional Credentialing Requirements;
(b) Have at least five years of recent clinical experience;
(c) Are board-certified in the case of a medical doctor, a doctor of osteopathy, a podiatrist, or a member of another profession in which board certification exists as determined by the department of health; and
(d) Have the ability to apply scientific standards of evidence in judging research literature pertinent to review issues, as demonstrated through relevant training or professional experience.
(4) Contract specialists must be knowledgeable in health insurance contract law, as evidenced by training and experience, but do not need to be an attorney or have any state credential.
(5) Assignment of appropriate reviewers to a case.
(a) An IRO shall assign one or more expert reviewers to each case, as necessary to meet requirements of this subsection.
(b) Any reviewer assigned to a case shall comply with the conflict of interest provisions in WAC 284-43A-050.
(c) The IRO shall assign one or more clinical reviewers to each case. All clinical reviewers assigned to a case shall each meet the following requirements:
(i) A clinical peer as defined in WAC 284-43A-010;
(ii) An expert in the treatment of the enrollee's medical condition that is the subject of the external review;
(iii) Knowledgeable about the recommended health care service or treatment through five years of recent or current actual clinical experience treating patients with the same or similar medical condition of the enrollee. Exceptions may be made to this requirement in unusual situations when the only experts available for a highly specialized review are in academic or research life and do not meet the clinical experience requirement; and
(iv) Have the ability to evaluate alternatives to the proposed treatment.
(d) If contract interpretation issues must be addressed, a contract specialist must be assigned to the review.
(e) Each IRO shall have a policy specifying the number and qualifications of reviewers to be assigned to each case. The number of expert reviewers should be dictated by what it takes to meet the requirements of this subsection.
(i) The number of expert reviewers should reflect the complexity of the case, the goal of avoiding unnecessary cost, and the need to avoid tie votes.
(ii) The IRO may consider, but shall not be bound by, recommendations regarding complexity from the carrier or attending provider.
(iii) Special attention should be given to situations such as review of experimental and investigational treatments that may benefit from an expanded panel.
NEW SECTION
WAC 284-43A-070 Independent review process.
(1) Information for review.
(a) IROs shall, as necessary, request, accept, and consider the following information as relevant to a case:
(i) Information that the carrier is required to submit to the IRO under WAC 284-43A-140, including information identified in that section that is initially missing or incomplete as submitted by the carrier.
(ii) Other medical, scientific, and cost-effectiveness evidence which is relevant to the case. For the purposes of this section, medical, scientific, and cost-effectiveness evidence has the meaning defined in WAC 284-43A-010.
(b) After referral of a case, an IRO shall accept additional information from the enrollee, the carrier, or a provider acting on behalf of the enrollee or at the enrollee's request, provided the information is submitted within five business days of the referral or, in the case of an expedited referral, within twenty-four hours. The additional information must be related to the case and relevant to statutory criteria.
(c) The IRO shall forward this information to the carrier within one business day of receipt of the information.
(2) Completion of reviews. Once the commissioner or designee refers a review, the IRO shall proceed to final determination unless requested otherwise by both the carrier and the enrollee or the carrier notifies the IRO it has reversed its adverse benefit determination.
(3) Time frames for reviews.
(a) An IRO shall make its determination within the following time limits:
(i) If the review is not expedited, within fifteen days after receiving necessary information, or within twenty days after receiving the referral, whichever is earlier. In exceptional circumstances where information is incomplete, the determination may be delayed until no later than twenty-five days after receiving the referral.
(ii) If the review is expedited, as defined in WAC 284-43-3170, within seventy-two hours after receiving the referral. If information on whether a referral is expedited is not provided to the IRO, the IRO may presume that it is not an expedited review, but the IRO has the option to seek clarification from the commissioner or designee.
(b) An IRO shall provide notice to enrollees and the carrier of the result and basis for the determination, consistent with subsection (5) of this section, within two business days of making a determination in regular cases and immediately in expedited cases.
(c) As used in this subsection, a day is a calendar day, except that if the period ends on a weekend or an official Washington state holiday, the time limit is extended to the next business day. A business day is any day other than Saturday, Sunday or an official Washington state holiday.
(4) Decision-making procedures.
(a) The independent review process is intended to be neutral and independent of influence by any affected party or by state government. The commissioner may conduct investigations under the provisions of this chapter but the commissioner has no involvement in the disposition of specific cases.
(b) Independent review is a paper review process. These rules do not establish a right to in-person participation or attendance by the enrollee, the health plan, or the attending provider nor to reconsideration of IRO determinations.
(c) An IRO shall present cases to reviewers in a way that maximizes the likelihood of a clear, unambiguous determination. This may involve stating or restating the questions for review in a clear and precise manner that encourages yes or no answers.
(d) If more than one reviewer is used, the IRO shall:
(i) Provide an opportunity for the reviewers to exchange ideas and opinions about the case with one another, if requested by a reviewer. This must be done in a manner that avoids pressure on reviewers to take a position with which they do not agree and preserves a dissenting reviewer's opportunity to document the rationale for dissent in the case file.
(ii) Accept the majority decision of the clinical reviewers in determining clinical issues.
(e) When a case requires an interpretation regarding the application of health plan coverage provisions, that determination must be made by a reviewer or reviewers who are qualified as contract specialists.
(f) An IRO may uphold an adverse benefit determination if the patient or any provider refuses to provide relevant medical records that are available and have been requested with reasonable opportunity to respond. An IRO may overturn an adverse benefit determination if the carrier refuses to provide relevant medical records that are available and have been requested with reasonable opportunity to respond.
(g) If reviewers are deadlocked, the IRO may add another reviewer if time allows.
(h) If all pertinent information has been disclosed and reviewers are unable to make a determination, the IRO shall decide in favor of the enrollee.
(5) Notification and documentation of determinations. An IRO shall notify the enrollee and the carrier of the result and rationale for the determination, including its clinical basis unless the decision is wholly based on application of coverage provisions, within the time frame in subsection (3)(b) of this section.
(a) Documentation of the basis for the determination shall include references to supporting evidence, and if applicable, the rationale for any interpretation regarding the application of health plan coverage provisions.
(b) If the determination overrides the health plan's medical necessity or appropriateness standards, the rationale shall document why the health plan's standards are unreasonable or inconsistent with sound, evidence-based medical practice.
(c) The written report shall include the qualifications of reviewers but shall not disclose the identity of the reviewers.
(d) Notification of the determination must be provided initially by telephone, e-mail, or facsimile, followed by a written report by mail. In the case of expedited reviews the initial notification must be immediate and by telephone.
(6) Each IRO must submit final decision determination information to the commissioner's online service within three business days of the IRO's final decision. Data elements and procedures for submission are located on the commissioner's web site.
NEW SECTION
WAC 284-43A-080 Criteria and considerations for independent review determinations.
(1) General criteria and considerations.
(a) The determination must be consistent with the standards in RCW 48.43.537, 48.43.535, and chapter 284-43A WAC.
(b) The expert reviewers from a certified IRO will make determinations regarding the medical necessity or appropriateness of, and the application of health plan coverage provisions to, health care services for an enrollee.
(c) The IRO shall ensure that determinations are consistent with the scope of covered benefits as outlined in the medical coverage agreement.
(i) Clinical reviewers may override the health plan's medical necessity or appropriateness standards only if the standards are determined upon review to be unreasonable or inconsistent with sound, evidence-based medical practice, or experimental or investigational treatment protocols.
(ii) Reviewers may make determinations about the application of general health plan coverage provisions to specific issues concerning health care services for an enrollee. For example, whether a specific service is excluded by more general benefit exclusion language may require independent interpretation.
(2) Medical necessity and appropriateness - Criteria and considerations. Only clinical reviewers may determine whether a service, which is the subject of an adverse decision, is medically necessary and appropriate. These determinations must be based upon their expert clinical judgment, after consideration of relevant medical, scientific, and cost-effectiveness evidence, and medical standards of practice in Washington state.
(a) Medical standards of practice include the standards appropriately applied to physicians or other health care providers, as pertinent to the case.
(b) In considering medical standards of practice within Washington state:
(i) Clinical reviewers may use national standards of care, absent evidence presented by the health plan or enrollee that the Washington state standard of care is different.
(ii) A health care service or treatment should be considered part of the Washington state standard of practice if reviewers believe that failure to provide it would be inconsistent with that degree of care, skill and learning expected of a reasonably prudent health care provider acting in the same or similar circumstances.
(c) Medical necessity will be a factor in most cases referred to an IRO, but not necessarily in all. See WAC 284-43A-080.
(3) Health plan coverage provisions - Criteria and considerations. The following requirements must be observed when a review requires making determinations about the application of health plan coverage provisions to issues concerning health care services for an enrollee.
(a) These determinations must be made by one or more contract specialists meeting the requirements of WAC 284-43A-060(4), except that a clinical determination of medical necessity or appropriateness, by itself, is not an interpretation of the scope of covered benefits and does not require a contract specialist.
(b) If the full health plan coverage agreement has not already been provided by the carrier under WAC 284-43A-140, the IRO shall request additional provisions from the health plan coverage agreement in effect during the relevant period of the enrollee's coverage, as necessary to have an adequate context for determinations.
(c) In general, the IRO and its contract specialists may assume that the contractual health plan coverage provisions themselves are consistent with the Washington Insurance Code (Title 48 RCW), absent information to the contrary. Primary responsibility for determining consistency with the insurance code, when at issue, rests with the commissioner.
(4) No provision of this chapter should be interpreted to establish a standard of medical care, or to create or eliminate any cause of action.
NEW SECTION
WAC 284-43A-090 Additional requirements for experimental or investigational treatment reviews.
(1) In addition to the qualifications listed in WAC 284-43A-060 (3) and (5), at least part of the clinical reviewers' relevant, recent clinical experience must have been obtained in the past three years.
(2) Each clinical reviewer shall consider the following information, if appropriate and available, in reaching an opinion:
(a) The enrollee's pertinent medical records;
(b) The attending physician or health care provider's recommendation;
(c) Consulting reports from appropriate health care providers and other documents submitted by the carrier, enrollee, or enrollee's authorized representative, or the enrollee's treating physician or health care provider; and
(d) Whether:
(i) The terms of coverage under the enrollee's health benefit plan would have covered the treatment had the carrier not determined that the treatment was experimental or investigational;
(ii) The recommended or requested health care service or treatment has been approved by the federal Food and Drug Administration, if applicable, for the condition; or
(iii) Medical or scientific evidence or evidence-based standards demonstrate that the recommended or requested health care service or treatment is more likely than any available standard health care service or treatment to be beneficial to the enrollee and the adverse risks would not be substantially increased over those of available standard health care services or treatments.
(3) Clinical reviewers shall include the following in their written opinions to the IRO:
(a) A description of the enrollee's medical condition;
(b) A description of the indicators relevant to determining whether there is sufficient evidence to demonstrate that the recommended or requested health care service or treatment is likely to be more beneficial to the enrollee than any available standard health care services or treatments and the adverse risks would not be substantially increased over those of available standard health care services or treatments;
(c) A description and analysis of any medical, scientific evidence, or cost-effectiveness evidence as defined in WAC 284-43A-010;
(d) A description and analysis of any evidence-based standard as defined in WAC 284-43A-010; and
(e) Information on whether the reviewer's rationale for the opinion is based on subsection (2)(d) of this section.
(4) IROs shall include the following in their notification of the results and rationale for the determination:
(a) A general description of the reason for the request for external review;
(b) The written opinion of each clinical reviewer, including whether the recommended or requested health care service or treatment should be covered and the rationale for each reviewer's recommendation;
(c) The date the review was requested;
(d) The date the review was conducted;
(e) The date of the IRO's decision;
(f) The principle reason or reasons for the IRO's decision; and
(g) The rationale for the IRO's decision.
NEW SECTION
WAC 284-43A-100 Ongoing requirements for IROs.
A certified IRO shall:
(1) Comply with the provisions of RCW 48.43.535(5), and this chapter;
(2) Cooperate with the commissioner during investigations;
(3) Provide the commissioner with information requested in a prompt manner. A lack of response within fifteen business days from receipt of an inquiry will be considered untimely;
(4) Conduct annual self-assessments of compliance with Washington certification requirements;
(5) Maintain certification. Independent review organizations that are certified as of December 31st of the calendar year will be required to submit an annual recertification, using the commissioner's online service, no later than March 31st of the following calendar year. Recertification requires the following:
(a) Submission of an annual attestation on the form required by the commissioner, signed by a company officer, certifying that all requirements within RCW 48.43.537 and this title will be met.
(b) Submission of updated information to the commissioner if at any time there is a change in the information included in the application.
(c) Submit an annual statistical report with the commissioner on a form specified by the commissioner summarizing reviews conducted. The report shall include, but may not be limited to, volumes, types of cases, compliance with timelines for expedited and nonexpedited cases, determinations, number and nature of complaints, and compliance with the conflict of interest requirements described in WAC 284-43A-050.
(d) Submit any other pertinent information required by the commissioner.
NEW SECTION
WAC 284-43A-110 Powers of the commissioner.
(1) The commissioner may deny, suspend, revoke, or modify certification of an IRO if the commissioner has reason to believe the applicant, certified IRO, its agents, officers, directors, or any person with any interest in the IRO has failed or refused to comply with the requirements established under this chapter.
(2) The commissioner may conduct an on-site review, audit, and examine records to investigate complaints alleging that an applicant, certified IRO, or reviewer committed any conduct described in WAC 284-43A-120.
NEW SECTION
WAC 284-43A-120 Grounds for action against an applicant or a certified IRO.
(1) The commissioner may deny an application for certification, or suspend, revoke, or modify certification if the applicant, certified IRO, its agents, officers, directors, or any person with any interest:
(a) Makes a misrepresentation of, false statement of, or fails to disclose, a material fact to the commissioner. This applies to any data attached to any record requested or required by the commissioner or matter under investigation or in a self-assessment;
(b) Obtains or attempts to obtain certification by fraudulent means or misrepresentation;
(c) Fails or refuses to comply with the requirements of RCW 48.43.537, 48.43.535(5), or this chapter;
(d) Conducts business or advertising in a misleading or fraudulent manner;
(e) Refuses to allow the commissioner access to records, or fails to promptly produce for inspection any book, record, document, or item requested by the commissioner, or willfully interferes with an investigation;
(f) Accepts referral of cases from the commissioner under RCW 48.43.535 without certification, or with certification which has been terminated, or is subject to sanction;
(g) Was the holder of a license, certification, or contract issued by the commissioner or by any competent authority in any state, federal, or foreign jurisdiction that was terminated for cause and never reissued, or sanctioned for cause and the terms of the sanction have not been fulfilled;
(h) Had accreditation from a recognized national or state IRO accrediting body that was terminated for cause and never reissued, or sanctioned for cause and the terms of the sanction have not been fulfilled;
(i) Willfully prevents, interferes with, or attempts to impede in any way the work of any representative of the commissioner and the lawful enforcement of any provision of this chapter. This includes, but is not limited to: Willful misrepresentation of facts during an investigation, or administrative proceeding, or any other legal action; or use of threats or harassment against any patient, client, customer, or witness; or use of financial inducements to any patient, client, customer, or witness to prevent or attempt to prevent him or her from providing evidence during an investigation, in an administrative proceeding, or any other legal action involving the commissioner;
(j) Willfully prevents or interferes with any commissioner representative in the preservation of evidence;
(k) Misrepresented or was fraudulent in any aspect of the conduct of business;
(l) Within the last five years, has been found in a civil or criminal proceeding to have committed any act that reasonably relates to the person's fitness to establish, maintain, or administer an IRO;
(m) Violates any state or federal statute, or administrative rule regulating the IRO;
(n) Fails to comply with an order issued by the insurance commissioner or designee;
(o) Uses interference, coercion, discrimination, reprisal, or retaliation against a patient, client, or customer exercising his or her rights;
(p) Offers, gives, or promises anything of value or benefit to any federal, state, or local employee or official for the purpose of influencing that employee or official to circumvent federal, state, or local laws, regulations, or ordinances governing the certification holder or applicant.
(2) A person including, but not limited to, enrollees, carriers, and providers, may submit a written complaint to the commissioner alleging that a certified IRO committed conduct described in this section.
NEW SECTION
WAC 284-43A-130 Maximum fee schedule.
This section sets the maximum fee schedule for independent reviews, and the process of review and determination of a case referred to an independent review organization (IRO).
(1) IROs may not charge more than the following amount for each review:
The fees in this section include all costs for time and materials associated with the review including, but not limited to:
(a) Record transmission expenses such as postage and facsimile costs; and
(b) Medical record handling and duplication.
(2) If the IRO and the health care plan agree in advance that the referral includes both a contract review and a medical review, the IRO may charge both fees.
(3) If an IRO charges more than the maximum fees allowed under this section, the commissioner may take action as described in WAC 284-43A-120.
SUBCHAPTER C
REQUIREMENTS FOR CARRIERS IN USING INDEPENDENT REVIEW ORGANIZATIONS (IROs)
NEW SECTION
WAC 284-43A-140 External review of adverse benefit determinations.
When the internal review of an adverse benefit determination is final, or is deemed exhausted, the appellant may request an external independent review of the final internal adverse benefit determination. Carriers and health plans must inform appellants of their right to external independent review, and explain the process to exercise that right. If the appellant requests an external independent review of a final internal adverse determination, the carrier or health plan must cooperatively participate in that review.
(1) Appellants must be provided the right to external review of adverse benefit determinations based on medical necessity, appropriateness, health care setting, level of care, or that the requested service or supply is not efficacious or otherwise unjustified under evidence-based medical criteria. The carrier may not establish a minimum dollar amount restriction as a predicate for an appellant to seek external independent review.
(2) Carriers must use the rotational registry system of certified independent review organizations (IRO) established by the commissioner, and must select reviewing IROs in the rotational manner described in the rotational registry system, using the commissioner's online service. A carrier may not make an assignment to an IRO out of sequence for any reason other than the existence of a conflict of interest, as set forth in WAC 284-43A-050.
(3) The rotational registry system, a current list of certified IROs, IRO assignment instructions, and an IRO assignment form to be used by carriers, are available on the insurance commissioner's web site (www.insurance.wa.gov).
(4) In addition to the requirements set forth in RCW 48.43.535, the carrier and health plan must:
(a) Make available to the appellant and to any provider acting on behalf of the appellant all materials provided to an IRO reviewing the carrier's determination;
(b) Provide IRO review without imposing any cost to the appellant or their provider;
(c) Provide IROs with:
(i) All relevant clinical review criteria used by the carrier and other relevant medical, scientific, and cost-effectiveness evidence;
(ii) The attending or ordering provider's recommendations; and
(iii) A copy of the terms and conditions of coverage under the relevant health plan.
(d) Within one day of selecting the IRO, notify the appellant of the name of the IRO and its contact information. This requirement is intended to comply with the federal standard that appellants receive notice of the IRO's identity and contact information within one day of assignment. The notice from the carrier must explain that the IRO will accept additional information in writing from the appellant for up to five business days after it receives the assignment. The IRO must consider this information when conducting its review.
(5) A carrier may waive a requirement that internal appeals must be exhausted before an appellant may proceed to an independent review of an adverse determination.
(6) Upon receipt of the information provided by the appellant to the IRO pursuant to RCW 48.43.535 and this section, a carrier may reverse its final internal adverse determination. If it does so, it must immediately notify the IRO and the appellant.
(7) Carriers must report to the commissioner each assignment made to an IRO not later than one business day after an assignment is made. Information regarding the enrollee's personal health may not be provided with the report.
(8) Each carrier and health plan must submit final independent review organization (IRO) decision determination information to the commissioner's online service within three business days of receipt of the IRO's final decision. Data elements and procedures for submission are located on the office of the insurance commissioner's web site.
(9) The requirements of this section are in addition to the requirements set forth in RCW 48.43.535, and rules adopted in subchapter B of this chapter.
NEW SECTION
WAC 284-43A-150 Independent review of adverse determinations.
Carriers must use the rotational registry system of certified independent review organizations (IROs) established by the commissioner.
(1) Using the commissioner's online service carriers must select reviewing IROs in the rotational manner described in the rotational registry system. A carrier may not make an assignment to an IRO out of sequence for any reason other than the existence of a conflict of interest, as set forth in WAC 284-43A-050.
(2) The rotational registry system, a current list of certified IROs, IRO assignment instructions, and an IRO assignment form to be used by carriers are set forth on the insurance commissioner's web site (www.insurance.wa.gov).
(3) In addition to the requirements set forth in RCW 48.43.535(4), carriers must:
(a) Make available to the covered person and to any provider acting on behalf of the covered person all materials provided to an independent review organization reviewing the carrier's determination; and
(b) Provide IROs with:
(i) All relevant clinical review criteria used by the carrier and other relevant medical, scientific, and cost-effectiveness evidence;
(ii) The attending or ordering provider's recommendations; and
(iii) A copy of the terms and conditions of coverage under the relevant health plan.
(4) Carriers must report to the commissioner each assignment made to an IRO not later than three business days after an assignment is made. Information regarding the enrollee's personal health should not be provided with the report.
(5) Each carrier and health plan must submit final IRO decision determination information using the commissioner's online service within three business days of receipt of the IRO's final decision. Data elements and procedures for submission are located on the office of the insurance commissioner's web site.
(6) The requirements of this section are in addition to the requirements set forth in RCW 48.43.535, and rules adopted in subchapter B of this chapter.
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