§ 23-17.12-9 - Review agency requirement for adverse determination and internal appeals.
SECTION 23-17.12-9
§ 23-17.12-9 Review agency requirement foradverse determination and internal appeals. – (a) The adverse determination and appeals process of the review agent shallconform to the following:
(1) Notification of a prospective adverse determination bythe review agent shall be mailed or otherwise communicated to the provider ofrecord and to the patient or other appropriate individual as follows:
(i) Within fifteen (15) business days of receipt of all theinformation necessary to complete a review of non-urgent and/or non-emergentservices;
(ii) Within seventy-two (72) hours of receipt of all theinformation necessary to complete a review of urgent and/or emergent services;and
(iii) Prior to the expected date of service.
(2) Notification of a concurrent adverse determination shallbe mailed or otherwise communicated to the patient and to the provider ofrecord period as follows:
(i) To the provider(s) prior to the end of the currentcertified period; and
(ii) To the patient within one business day of making theadverse determination.
(3) Notification of a retrospective adverse determinationshall be mailed or otherwise communicated to the patient and to the provider ofrecord within thirty (30) business days of receipt of a request for paymentwith all supporting documentation for the covered benefit being reviewed.
(4) A utilization review agency shall not retrospectivelydeny authorization for health care services provided to a covered person whenan authorization has been obtained for that service from the review agentunless the approval was based upon inaccurate information material to thereview or the health care services were not provided consistent with theprovider's submitted plan of care and/or any restrictions included in the priorapproval granted by the review agent.
(5) Any notice of an adverse determination shall include:
(i) The principal reasons for the adverse determination, toinclude explicit documentation of the criteria not met and/or the clinicalrationale utilized by the agency's clinical reviewer in making the adversedetermination. The criteria shall be in accordance with the agency criterianoted in subsection 23-17.12-9(d) and shall be made available within the firstlevel appeal timeframe if requested unless otherwise provided as part of theadverse determination notification process;
(ii) The procedures to initiate an appeal of the adversedetermination, including the name and telephone number of the person tocontract with regard to an appeal;
(iii) The necessary contact information to complete thetwo-way direct communication defined in subdivision 23-17.12-9(a)(7); and
(iv) The information noted in subdivision23-27.12-9(a)(5)(i)(ii)(iii) for all verbal notifications followed by writtennotification to the patient and provider(s).
(6) All initial retrospective adverse determinations of ahealth care service that had been ordered by a physician, dentist or otherpractitioner shall be made, documented and signed consistent with theregulatory requirements which shall be developed by the department with theinput of review agents, providers and other affected parties.
(7) A level one appeal decision of an adverse determinationshall not be made until an appropriately qualified and licensed reviewphysician, dentist or other practitioner has spoken to, or otherwise providedfor, an equivalent two-way direct communication with the patient's attendingphysician, dentist, other practitioner, other designated or qualifiedprofessional or provider responsible for treatment of the patient concerningthe medical care, with the exception of the following:
(i) When the attending provider is not reasonably available;
(ii) When the attending provider chooses not to speak withagency staff;
(iii) When the attending provider has negotiated an agreementwith the review agent for alternative care; and/or
(iv) When the attending provider requests a peer to peercommunication prior to the adverse determination, the review agency shall thencomply with subdivision 23-17.12-9(c)(1) in responding to such a request. Suchrequests shall be on the case specific basis unless otherwise arranged for inadvance by the provider.
(8) All initial, prospective and concurrent adversedeterminations of a health care service that had been ordered by a physician,dentist or other practitioner shall be made, documented and signed by alicensed practitioner with the same licensure status as the orderingpractitioner or a licensed physician or dentist. This does not prohibitappropriately qualified review agency staff from engaging in discussions withthe attending provider, the attending provider's designee or appropriate healthcare facility and office personnel regarding alternative service and treatmentoptions. Such a discussion shall not constitute an adverse determinationprovided though that any change to the provider's original order and/or anydecision for an alternative level of care must be made and/or appropriatelyconsented to by the attending provider or the provider's designee responsiblefor treating the patient.
(9) The requirement that, upon written request made by or onbehalf of a patient, any adverse determination and/or appeal shall include thewritten evaluation and findings of the reviewing physician, dentist or otherpractitioner. The review agent is required to accept a verbal request made byor on behalf of a patient for any information where a provider or patient candemonstrate that a timely response is urgent.
(b) The review agent shall conform to the following for theappeal of an adverse determination:
(1) The review agent shall maintain and make available awritten description of the appeal procedure by which either the patient or theprovider of record may seek review of determinations not to authorize a healthcare service. The process established by each review agent may include areasonable period within which an appeal must be filed to be considered andthat period shall not be less than sixty (60) days.
(2) The review agent shall notify, in writing, the patientand provider of record of its decision on the appeal as soon as practical, butin no case later than fifteen (15) or twenty-one (21) business days if verbalnotice is given within fifteen (15) business days after receiving the requireddocumentation on the appeal.
(3) The review agent shall also provide for an expeditedappeals process for emergency or life threatening situations. Each review agentshall complete the adjudication of expedited appeals within two (2) businessdays of the date the appeal is filed and all information necessary to completethe appeal is received by the review agent.
(4) All first level appeals of determinations not toauthorize a health care service that had been ordered by a physician, dentist,or other practitioner shall be made, documented, and signed by a licensedpractitioner with the same licensure status as the ordering practitioner or alicensed physician or a licensed dentist.
(5) All second level appeal decisions shall be made, signed,and documented by a licensed practitioner in the same or a similar generalspecialty as typically manages the medical condition, procedure, or treatmentunder discussion.
(6) The review agent shall maintain records of writtenappeals and their resolution, and shall provide reports as requested by thedepartment.
(c) The review agency must conform to the followingrequirements when making its adverse determination and appeal decisions:
(1) The review agent must assure that the licensedpractitioner or licensed physician is reasonably available to review the caseas required under subdivision 23-17.12-9(a)(7) and shall conform to thefollowing:
(i) Each agency peer reviewer shall have access to and reviewall necessary information as requested by the agency and/or submitted by theprovider(s) and/or patients;
(ii) Each agency shall provide accurate peer review contactinformation to the provider at the time of service, if requested, and/or priorto such service, if requested. This contact information must provide amechanism for direct communication with the agency's peer reviewer;
(iii) Agency peer reviewers shall respond to the provider'srequest for a two-way direct communication defined in subdivision23-17.12-9(a)(7)(iv) as follows:
(A) For a prospective review of non-urgent and non-emergenthealth care services, a response within one business day of the request for apeer discussion;
(B) For concurrent and prospective reviews of urgent andemergent health care services, a response within a reasonable period of time ofthe request for a peer discussion; and
(C) For retrospective reviews, prior to the first levelappeal decision.
(iv) The review agency will have met the requirements of atwo-way direct communication, when requested and/or as required prior to thefirst level of appeal, when it has made two (2) reasonable attempts to contactthe attending provider directly.
(v) Repeated violations of this section shall be deemed to besubstantial violations pursuant to § 23-17.12-14 and shall be cause forthe imposition of penalties under that section.
(2) No reviewer at any level under this section shall becompensated or paid a bonus or incentive based on making or upholding anadverse determination.
(3) No reviewer under this section who has been involved inprior reviews of the case under appeal or who has participated in the directcare of the patient may participate as the sole reviewer in reviewing a caseunder appeal; provided, however, that when new information has been madeavailable at the first level of appeal, then the review may be conducted by thesame reviewer who made the initial adverse determination.
(4) A review agent is only entitled to review information ordata relevant to the utilization review process. A review agent may notdisclose or publish individual medical records or any confidential medicalinformation obtained in the performance of utilization review activities. Areview agent shall be considered a third party health insurer for the purposesof § 5-37.3-6(b)(6) of this state and shall be required to maintain thesecurity procedures mandated in § 5-37.3-4(c).
(5) Notwithstanding any other provision of law, the reviewagent, the department, and all other parties privy to information which is thesubject of this chapter shall comply with all state and federal confidentialitylaws, including, but not limited to, chapter 37.3 of title 5 (Confidentialityof Health Care Communications and Information Act) and specifically §5-37.3-4(c), which requires limitation on the distribution of information whichis the subject of this chapter on a "need to know" basis, and § 40.1-5-26.
(6) The department may, in response to a complaint that isprovided in written form to the review agent, review an appeal regarding anyadverse determination, and may request information of the review agent,provider or patient regarding the status, outcome or rationale regarding thedecision.
(d) The requirement that each review agent shall utilize andprovide upon request, by Rhode Island licensed hospitals and the Rhode IslandMedical Society, in either electronic or paper format, written medicallyacceptable screening criteria and review procedures which are established andperiodically evaluated and updated with appropriate consultation with RhodeIsland licensed physicians, hospitals, including practicing physicians, andother health care providers in the same specialty as would typically treat theservices subject to the criteria as follows:
(1) Utilization review agents shall consult with no fewerthan five (5) Rhode Island licensed physicians or other health care providers.Further, in instances where the screening criteria and review procedures areapplicable to inpatients and/or outpatients of hospitals, the medical directorof each licensed hospital in Rhode Island shall also be consulted. Utilizationreview agents who utilize screening criteria and review procedures provided byanother entity may satisfy the requirements of this section if the utilizationreview agent demonstrates to the satisfaction of the director that the entityfurnishing the screening criteria and review procedures has complied with therequirements of this section.
(2) Utilization review agents seeking initial certificationshall conduct the consultation for all screening and review criteria to beutilized. Utilization review agents who have been certified for one year orlonger shall be required to conduct the consultation on a periodic basis forthe utilization review agent's highest volume services subject to utilizationreview during the prior year; services subject to the highest volume of adversedeterminations during the prior year; and for any additional servicesidentified by the director.
(3) Utilization review agents shall not include in theconsultations as required under paragraph (1) of this subdivision, anyphysicians or other health services providers who have financial relationshipswith the utilization review agent other than financial relationships forprovisions of direct patient care to utilization review agent enrollees andreasonable compensation for consultation as required by paragraph (1) of thissubdivision.
(4) All documentation regarding required consultations,including comments and/or recommendations provided by the health care providersinvolved in the review of the screening criteria, as well as the utilizationreview agent's action plan or comments on any recommendations, shall be inwriting and shall be furnished to the department on request. The documentationshall also be provided on request to any licensed health care provider at anominal cost that is sufficient to cover the utilization review agent'sreasonable costs of copying and mailing.
(5) Utilization review agents may utilize non-Rhode Islandlicensed physicians or other health care providers to provide the consultationas required under paragraph (1) of this subdivision, when the utilizationreview agent can demonstrate to the satisfaction of the director that therelated services are not currently provided in Rhode Island or that anothersubstantial reason requires such approach.
(6) Utilization review agents whose annualized data reportedto the department demonstrate that the utilization review agent will reviewfewer than five hundred (500) such requests for authorization may request avariance from the requirements of this section.