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1999 SESSION
992564412Patrons-- Purkey, Abbitt, Blevins, Bloxom, Christian, Cranwell, Croshaw, Davis, Drake, Dudley, Guest, Hamilton, Harris, Howell, Ingram, Johnson, Jones, S.C., Landes, Marshall, McDonnell, Melvin, Reid, Rollison, Ruff, Tata, Wagner and Wilkins; Senators: Holland, Lucas and Potts
Be it enacted by the General Assembly of Virginia:
1. That §§ 32.1-137.6 and 32.1-137.15 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding in Chapter 5 of Title 32.1 an article numbered 1.3, consisting of sections numbered 32.1-137.18 through 32.1-137.21, as follows:
§ 32.1-137.6. Complaint system.
A. Each managed care health insurance plan licensee subject to § 32.1-137.2 shall establish and maintain for each of its managed care health insurance plans a complaint system approved by the Commissioner and the Bureau of Insurance to provide reasonable procedures for the resolution of written complaints in accordance with the requirements established under this article and Title 38.2, and shall include the following:
1. A record of the complaints shall be maintained for the period set forth in § 32.1-137.16 for review by the Commissioner.
2. Each managed care health insurance plan licensee shall provide complaint forms and/or written procedures to be given to covered persons who wish to register written complaints. Such forms or procedures shall include the address and telephone number to which complaints shall be directed and shall also specify any required limits imposed by or on behalf of the managed care health insurance plan. Such forms and written procedures shall include a clear and understandable description of the covered person’s right to appeal denials of adverse determinations in accordance with Article 1.3 (§ 32.1-137.18 et seq.) of this chapter and the procedures for making such an appeal.
B. The Commissioner, in cooperation with the Bureau of Insurance, shall examine the complaint system. The effectiveness of the complaint system of the managed care health insurance plan licensee in allowing covered persons, or their duly authorized representatives, to have issues regarding quality of care appropriately resolved under this article shall be assessed by the State Health Commissioner under this article. Compliance by the health carrier and its managed care health insurance plans with the terms and procedures of the complaint system, as well as the provisions of Title 38.2, shall be assessed by the Bureau of Insurance.
C. As part of the renewal of a certificate, each managed care health insurance plan licensee shall submit to the Commissioner an annual complaint report in a form agreed and prescribed by the Board and the Bureau of Insurance. The complaint report shall include, but shall not be limited to (i) a description of the procedures of the complaint system, (ii) the total number of complaints handled through the complaint system, (iii) the disposition of the complaints, (iv) a compilation of the nature and causes underlying the complaints filed, (v) the time it took to process and resolve each complaint, and (vi) the number, amount, and disposition of malpractice claims adjudicated during the year with respect to any of the managed care health insurance plan's health care providers.
The Department of Personnel and Training and the Department of Medical Assistance Services shall file similar periodic reports with the Commissioner, in a form prescribed by the Board, providing appropriate information on all complaints received concerning quality of care and utilization review under their respective health benefits program and managed care health insurance plan licensee contractors.
D. The Commissioner shall examine the complaint system under subsection B for compliance of the complaint system with respect to quality of care and shall require corrections or modifications as deemed necessary.
§ 32.1-137.15. Final adverse decision; appeal.
A. Each entity shall establish an appeals process, including a process for expedited appeals, to consider any final adverse decision that is appealed by a covered person, his representative, or his provider. Except as provided in subsection E, notification of the results of the appeal process shall be provided to the appellant no later than sixty working days after receiving the required documentation. The decision shall be in writing and shall state the criteria used and the clinical reason for the decision. If the appeal is denied, such notification shall include a clear and concise notice of the appealing party’s right to seek review of the denial in accordance with Article 1.3 (§ 32.1-137.18 et seq.) of this chapter and the procedures for obtaining that review.
B. Any case under appeal shall be reviewed by a peer of the treating health care provider who proposes the care under review or who was primarily responsible for the care under review. With the exception of expedited appeals, a physician advisor who reviews cases under appeal shall be a peer of the treating health care provider, shall be board certified or board eligible, and shall be specialized in a discipline pertinent to the issue under review.
A physician advisor or peer of the treating health care provider who renders a decision on appeal shall: (i) not have participated in the adverse decision or any prior reconsideration thereof; (ii) not be employed by or a director of the utilization review entity; and (iii) be licensed to practice in Virginia, or under a comparable licensing law of a state of the United States, as a peer of the treating health care provider.
C. The utilization review entity shall provide an opportunity for the appellant to present additional evidence for consideration on appeal. Before rendering an adverse appeal decision, the utilization review entity shall review the pertinent medical records of the covered person's provider and the pertinent records of any facility in which health care is provided to the covered person which have been furnished to the entity.
D. In the appeals process, due consideration shall be given to the availability or nonavailability of alternative health care services proposed by the entity. No provision herein shall prevent an entity from considering any hardship imposed by the alternative health care on the patient and his immediate family.
E. When an adverse decision or adverse reconsideration is made and the treating health care provider believes that the decision warrants an immediate appeal, the treating health care provider shall have the opportunity to appeal the adverse decision or adverse reconsideration by telephone on an expedited basis.
The decision on an expedited appeal shall be made by a physician advisor, peer of the treating health care provider, or a panel of other appropriate health care providers with at least one physician advisor on the panel.
The utilization review entity shall decide the expedited appeal no later than one business day after receipt by the entity of all necessary information.
An expedited appeal may be requested only when the regular reconsideration and appeals process will delay the rendering of health care in a manner that would be detrimental to the health of the patient. Both providers and utilization review entities shall attempt to share the maximum information by telephone, facsimile machine, or otherwise to resolve the expedited appeal in a satisfactory manner.
An expedited appeal decision may be further appealed through the standard appeal process established by the entity unless all material information and documentation were reasonably available to the provider and to the entity at the time of the expedited appeal, and the physician advisor reviewing the case under expedited appeal was a peer of the treating health care provider, was board certified or board eligible, and specialized in a discipline pertinent to the issue under review.
F. The appeals process required by this section does not apply to any adverse decision, reconsideration, or final adverse decision rendered solely on the basis that a health benefit plan does not provide benefits for the health care rendered or requested to be rendered.
G. No entity performing utilization review pursuant to this article or Chapter 53 (§ 38.2-5300 et seq.) of Title 38.2, shall terminate the employment or other contractual relationship or otherwise penalize a health care provider for advocating the interest of his patient or patients in the appeals process or invoking the appeals process, unless the provider engages in a pattern of filing appeals that are without merit.
§ 32.1-137.18. Definitions.
"Covered person" means a subscriber, policyholder, member, enrollee or dependent, as the case may be, under a policy or contract issued or issued for delivery in Virginia by a managed care health insurance plan licensee, insurer, health services plan, or preferred provider organization.
§ 32.1-137.19. Appeals to the Commissioner.
A. After exhausting all complaint and appeal procedures available under Article 1.2 (§ 32.1-137.7 et seq.) of this chapter, a covered person may appeal to the Commissioner any adverse utilization review determination for any procedure costing more than $500.
B. To appeal an adverse utilization review determination, a covered person shall, within thirty days from receiving a final written determination, file a written appeal with the Commissioner. The appeal shall be on the forms prescribed by the Board and shall include a nonrefundable fifty-dollar filing fee.
C. All appeals shall include a general release executed by the covered person for all medical records pertinent to the appeal.
D. Upon receipt of the appeal, the Commissioner or his designee shall conduct a preliminary review of the appeal and accept such appeal if:
1. The individual on whose behalf the appeal was filed was a covered person;
2. The benefit or service that is the subject of the appeal reasonably appears to be a covered service or treatment costing more than $500;
3. The covered person has exhausted all complaint and appeals procedures available pursuant to Article 1.2 (§ 32.1-137.7 et seq.) of this chapter;
4. The covered person has provided all information requested by the Board necessary to conduct a determination, including (i) the appeal form, (ii) a copy of the final decision of denial, and (iii) a fully executed release to obtain any necessary medical record.
E. Upon completion of the preliminary review, the Commissioner or his designee shall immediately notify the covered person in writing as to whether or not the appeal has been accepted for review, and if not accepted, the reasons therefor.
§ 32.1-137.20. Review hearing.
Appeals accepted for review in accordance with § 32.1-137.19 shall be conducted by an impartial health entity engaged by the Commissioner to provide for medical review under the provisions of this article. Such entities may include (i) medical peer review organizations, (ii) independent utilization review companies, or (iii) nationally recognized health experts or institutions comprised of at least three individuals. Such impartial health entities shall be approved in advance by the Commissioner, and shall have no relationship or association with the health plan being reviewed. After considering the covered person’s complaint, the health plan’s response, and any affidavits filed by the parties, the Commissioner shall, based on the majority decision of the impartial health entity, issue a binding order affirming, modifying, or reversing the appealed decision.
§ 32.1-137.21. Rules and regulations.
The Board shall promulgate regulations effectuating the purpose of this article in accordance with the Administrative Process Act (§ 9-6.14:1 et seq.). Such regulations shall include (i) provisions for expedited consideration of appeals in cases involving emergency health care, (ii) standards and qualifications for impartial health entities, and (iii) a schedule of fees to be charged to health plans upon the completion of an appeal.
2. That § 32.1-137.17 of the Code of Virginia is repealed.