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Managed Care Regulations by State  

(Click on each state to link to go to the listing)

Alabama | Alaska | Arizona | Arkansas | California | Colorado | Connecticut | Delaware
District of Columbia | Florida | Georgia | Hawaii | Idaho | Illinois | Indiana | Iowa | Kansas

Kentucky | Louisiana | Maine | Maryland | Massachusetts | Michigan | Minnesota

Mississippi | Missouri | Montana | Nebraska | Nevada | New Hampshire | New Jersey

New Mexico | New York  | North Carolina | North Dakota | Ohio | Oklahoma | Oregon

Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee  | Texas | Utah

Vermont | Virginia | Washington | West Virginia | Wisconsin | Wyoming

Note: Usually excluded, even from provisions with very broad scope, are workers’ compensation-related plans, long-term care plans, disability income plans, and single-disease and similarly restricted plans.  The key criterion for determining whether an entity will be regulated as an HMO is typically prepayment.  The key criterion for determining whether an entity will be regulated as a managed care organization, where state laws relate to such entities, is adoption of restrictions or incentives affecting choice of provider (although some states, e.g., Montana, exclude PPOs and other networks “operated in a fee-for-service indemnity environment”  from the definition of managed care plan) (Mont. Code Ann. 33-36-103(15)).


Alabama

Link to Alabama Legislature: http://www.legislature.state.al.us/misc/links/links.html

Consumer/Patient Protections

Access
*Ala. Admin. Code r. 420-5-6-.06 (1998) – standing referrals – HMOs must have a system in place to ensure that enrollees receive medically necessary referrals.; in those cases in which a health condition of ongoing or chronic status has been established and the need for specialized care has been determined, the referring physician may authorize in advance a number of visits to a specialty physician so that the enrollee may proceed directly to the specialty physician without first meeting with the referring physician (without incurring increased financial liability).

Ala. Code § 27-94-4 (1997) – OB/GYNs – health benefit plans (inclusive term) must permit OB/GYNs to serve as PCPs and allow patients direct access to OB/GYNs for specified services.

Complaints/UR
Ala. Code § 27-21A-10 – complaints – HMOs are required to establish a complaint system (typical of HMO model act-type provisions that require HMOs to establish a complaint system and get regulatory approval but do not set timeframes, etc.).

Ala. Admin. Code r. 420-5-6-.08(1998) – grievances – HMOs are to have three levels of review, with notice of right to appeal at each stage; HMO is to specify time limits, no more than 45 days, for disposition of grievances at each level of review.*

HMO Protections
Ala. Code § 27-21A-23 – vicarious liability – HMOs authorized by the state are deemed not to be engaged in the practice of medicine and no person participating in the arrangements of an HMO other than the actual provider of services or supplies to enrollees shall be liable for negligence, misfeasance, nonfeasance or malpractice in connection with the furnishing of such services and supplies.

Selected Benefit Mandates (examples; not intended to be exhaustive):
Ala. Code § 27-1-10.1 (1997) – off-label uses of drugs – any insurance policy that provides coverage for drugs is required to provide coverage for off-label use of drugs (not restricted to cancer)

Ala. Admin. Code r. 420-5-6-.04 (1998) – basic services – HMOs are required to provide “basic health services,” which include emergency care (defined term, although no reference to prudent layperson), etc.

+The state health agency is expected to issue regulations that establish tighter timeframes for handling grievances, etc., shortly.



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Alaska

Link to Alaska Legislature: http://www.legis.state.ak.us/folhome.htm

Consumer/Patient Protections

Complaints/UR
1998 Alaska Sess. Laws Ch. 60, Sec. 5 (adding § 21.86.150(i)(3)) – denials of coverage – HMOs may not deny health care coverage unless the enrollee has been examined by at least 2 physicians.

1998 Alaska Sess. Laws Ch. 60, Sec. 5 (adding § 21.86.150(j)) – denials of benefits – HMO UR decisions about medical necessity may only be made by a provider in the relevant specialty or subspecialty after consultation with covered person’s provider.

Disclosure
1998 Alaska Sess. Laws Ch. 60, Sec. 5 (adding § 21.86.150(i)(1)) – gag clauses – HMOs may not “cause, request, or knowingly permit” the imposition of limits on provider communication with patients regarding health care services (includes criticism of the HMO).

Prohibition on Incentives
1998 Alaska Sess. Laws Ch. 60, Sec. 5 (adding § 21.86.150(i)(4)) – incentives – HMOs may not “cause, request, or knowingly permit” financial incentives to be given or offered to a provider for denying or delaying health care services.



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Arizona

Link to Arizona Legislature : http://www.azleg.state.az.us/

Consumer/Patient Protections

Complaints/UR
Ariz. Rev. Stat. Ann. §§ 20-2530 to 20-2539 (West 1997) – independent review – applies to all health care insurers (inclusive definition), with an ERISA preemption caveat for self-funded plans; does not create a private right of action ; requires insurers to have at least 4 levels of review: an expedited medical review, an informal reconsideration, a formal appeal process, and an external independent review; reviewers must have certain qualifications; timeframes are specified for each level of review; IR decisions are subject to judicial review; the insurer pays the IR fees.

 Disclosure
Ariz. Rev. Stat. Ann. § 20-1076(A)(6) (West 1997) – incentive disclosure – health care services organizations must provide a concise description of any incentives or penalties intended to encourage plan providers to withhold services or minimize or avoid referrals to specialists; does not create a private right of action; parallel provisions for small employer plans at § 20-2323(h)(6).

Ariz. Rev. Stat. Ann. § 20-1076(A)(5) (West 1997) – formulary disclosure – other disclosure items include information concerning formularies.

Ariz. Rev. Stat. Ann. § 20-118 (West 1997) – gag clauses – “no person” may restrict or prohibit, by means of policy or contract, good faith communication between provider and patient concerning health care needs, treatment options, health care risks or benefits (same language is repeated in sections governing specific types of insurers, e.g., § 20-1061 (health care services organizations), §§ 20-827, 20-833 (hospital and other service corporations), § 20-934 (benefit insurers).

 Emergency Care
Ariz. Rev. Stat. Ann. § 20-2803 (West 1997) – emergency care – health care services plans (inclusive term) must cover an initial medical screening exam and any immediately necessary stabilizing treatment required under EMTALA without prior authorization; for necessary follow-up care, prior authorization is deemed granted unless a request is denied within a reasonable period of time; certain kinds of follow-up care must be covered unless the plan makes alternative arrangements for the patient’s care.

Nondiscrimination
*Ariz. Rev. Stat. Ann. § 20-1057 (West 1997) – discrimination – health care services organizations must provide specified basic health care services and may not cancel a plan because of a health status-related factor or frequency of utilization of basic health care services of an enrollee or group of enrollees.

Selected Benefit Mandates
Ariz. Rev. Stat. Ann. § 20-826 (West 1997) – home health services - hospital and other service corporations must pay benefits for any home health services prescribed by a physician in lieu of hospital services (also §§ 20-1402, 1404 for group and blanket disability insurance).

Ariz. Rev. Stat. Ann. § 20-826 (West 1997) – post-mastectomy breast reconstruction – applies to hospital and other service corporations that cover mastectomies (also § 20-1057 for health care services organizations, §§ 20-1402, 1404 for group and blanket disability insurance).

Note: § 20-1061 makes health care services organizations subject to the statutory provisions concerning unfair trade practices and frauds.



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Arkansas

Link to Arkansas Legislature: http://www.arkleg.state.ar.us/lpbin/lpext.dll

Consumer/Patient Protections

Access
*Ark. Code Ann. § 23-99-408 (Michie 1997)– continuity of care – applies to insurers restricting providers; new patient who is being treated by nonparticipating provider for a current episode of an acute condition may continue that treatment as an in-network benefit until earlier of end of treatment episode and 90 days; patient whose provider is terminated may continue to receive care as an in-network benefit until earlier of end of treatment for acute condition and 90 days.

Ark. Code Ann. § 23-99-406 (Michie 1997) – OB/GYNs – health insurers must permit direct access.

Complaints/UR
Ark. Code Ann. § 23-99-410 (Michie 1997) – grievances – applies to all managed care plans; no specific timetables or kinds of review, simple “prompt and meaningful review” in cases of denial with “prompt” notice in writing of the outcome with “specific findings” relating to the grievance.

Disclosure
Ark. Code Ann. § 23-99-407 (Michie 1997) – gag clauses – no participating provider may be “prohibited, restricted or penalized in any way” in connection with disclosure of any health care information (extends to UR processes and financial incentives).

Ark. Code Ann. § 23-99-413 (Michie 1997) – formularies –health insurers must provide to prospective policyholders, policyholders and covered persons, upon request, among other things, information concerning the existence of formularies and prior approval requirements for prescription drugs, and criteria by which providers are evaluated for participation (also available to providers upon request).

Emergency Care
Ark. Code Ann. § 20-9-309 (Michie 1997) – emergency care – prudent layperson standard, no preauthorization required.

Formularies
*Ark. Code Ann. § 23-99-409 (Michie 1997) – nonformulary drugs – applies to insurers using formularies; each insurer must have a written procedure whereby covered persons can obtain “without penalty and in a timely fashion,” specific drugs and medications not included in the formulary when the formulary’s equivalent has been ineffective or causes or can be expected to cause an adverse reaction.

Selected Benefit Mandates
Ark. Code Ann. § 23-79-147 (as amended by SB 151, 1999 Ark Legis. Serv.) – off-label uses of drugs – applies to any insurance policy that provides coverage for prescription drugs; limited to use for the treatment of cancer; standard qualifications concerning backing in the medical literature.

Ark. Code Ann. § 23-99-405 (Michie 1997) – post-mastectomy breast reconstruction – applies to health insurers that cover mastectomies.

Ark. Code Ann. §§ 23-79-601 to 607 (Michie 1997) – diabetes – applies to all health insurance policies (inclusive term); requires coverage of self-management training and medically necessary equipment, supplies and services.



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California

Consumer/Patient Protections

Access
Cal. Health & Safety Code § 1367 (West 1998) – continuity of care/referrals – admonition that health care service plans (= entities that cover services in return for a prepaid or periodic charge) furnish “services in a manner providing continuity of care” and ready referral to other providers “as may be appropriate consistent with good professional practice.”

*Cal. Health & Safety Code § 1373.96 (West 1999) – continuity of care – plans must, at enrollee request, cover continuing treatment by a terminated provider for an acute condition, serious chronic condition, or pregnancy (does not apply to voluntary departure or termination for cause, and provider must agree to certain terms); for an acute or serious chronic condition, must cover services for up to 90 days or longer if necessary for a safe transfer as determined by the plan in consultation with the terminated provider, consistent with good professional practice; serious chronic condition defined as “a medical condition due to a disease, illness, or other medical problem or medical disorder that is serious in nature, and either persists without full cure or worsens over an extended period of time or requires ongoing treatment to maintain remission or prevent deterioration” (parallel provisions for life and disability insurers are at Cal. Ins. Code § 10133.56).

*Cal. Health & Safety Code § 1374.16(a) (West 1999) – standing referrals/specialists as PCPs – plans must have a procedure that provides for a standing referral to a specialist if the PCP determines in consultation with the specialist, if any, and the plan medical director/designee that an enrollee needs continuing specialist care; may involve treatment plan that limits visits or period of time; plan must have a procedure that provides for referral to a specialist/specialty care center for the purpose of coordinating the enrollee’s health care, where a condition or disease requires specialized medical care over a prolonged period of time and is life-threatening, degenerative, or disabling (determination of medical necessity is made by the PCP in consultation with specialist/center if any and the medical director/designee); may involve treatment plan; after the referral is made, the specialist is authorized to provide services within the area of expertise in the same manner as the PCP, subject to the terms of any treatment plan; determinations must be made within 3 b.d. of receipt of request and all necessary information, and referral must be made within 4 b.d. of submission of treatment plan, if any, to the medical director/designee; obligation to make OON referral only where there is no appropriate IN specialist (as determined by the PCP in consultation with the medical director).

Cal. Health & Safety Code § 1367.69 (West 1998) – OB/GYNs – plans must permit OB/GYNs to serve as PCPs (direct access is mandated under 1998 Cal. Legis. Serv. § 1367.95 (West)).

Complaints/UR
Cal. Health & Safety Code § 1367 (West 1998) – noninterference – the section on administrative capacity contains a requirement that a plan “be able to demonstrate to the department that medical decisions are rendered by qualified medical providers, unhindered by fiscal and administrative management.”

Cal. Health & Safety Code §§ 1368, 1368.01 (West 1998) – grievances – plans must establish system; some timeframes specified, and recourse to department permitted after 60 days in the process; a status report if not a resolution required within 30 days.

Cal. Health & Safety Code § 1368.02 (West 1998) – ombudsman – the commissioner is to establish a toll-free number and designate an ombudsperson.

Cal. Health & Safety Code § 1368.1 (West 1998) – expedited review – a plan that denies coverage to an enrollee with a terminal illness must provide certain information within 5 business days and provide the enrollee with the opportunity to attend a conference within 30 calendar days.

Cal. Health & Safety Code § 1370.2 (West 1998) – reviewer qualifications – plans must insure that reviewers of contested claims have appropriate qualifications.

Cal. Health & Safety Code § 1370.4 (West 1998) – independent review – plans must provide IR for enrollees with terminal conditions seeking non-standard therapies that would be covered but for plan determinations that they are experimental; does not apply to Medi-Cal beneficiaries; costs are borne by the plan; timeframe is 30 days or 7 days for expedited review; a majority decision is binding on the plan and an even split is deemed a decision in favor of coverage (parallel provisions for life and disability insurers are at Cal. Ins. Code § 10145.3).

Disclosure
Cal. Bus. & Prof. Code §§ 2056, 2056.1 (West 1998) – gag clauses/nonretaliation – no person may penalize a physician or surgeon for principally for advocating for medically appropriate health care or prohibit or discourage a physician or surgeon from communicating to a patient information in furtherance of medically appropriate health care; medically appropriate health care in a hospital is defined by the medical staff, consistent with the applicable legal standard of care; plans and their contracting entities may not include provisions in their contracts that interfere with the ability of a licensed health care provider to communicate with a patient regarding his or her health care, including communications regarding treatment options, alternative plans, or other coverage arrangements (but may prohibit solicitation for alternative coverage for the primary purpose of securing financial gain).

Cal. Health & Safety Code § 1367.10 (West 1998) – incentive disclosure – plans that affect choice of provider must disclose the basic method of reimbursement and whether financial bonuses or incentives are used.

1998 Cal. Legis. Serv. § 1367.22 (West) – formulary disclosure – plans must disclose current list of formulary drugs to members of the public upon request.

Cal. Health & Safety Code § 1373.96 (West 1999) – continuity of care – a description of how to request continuity of care must be included in the evidence of coverage and disclosure form after 7/1/99.

Cal. Health & Safety Code § 1363 (West 1999) – matrix – beginning 7/1/99, plans in individual or small group markets must display information in uniform benefits and coverage matrix that includes category descriptions with corresponding copayments and limitations (includes prescription drug coverage, DME, mental health, chemical dependency, home health).

Emergency Care
Cal. Health & Safety Code § 1371.4 (West 1998) – emergency care – plans, with some exceptions, cannot require preauthorization for emergency care so long as emergency services are legally mandated without regard to ability to pay, unless the enrollee did not require emergency care and reasonably should have known that (no preauthorization for ambulance services per 1998 Cal. Legis. Serv. § 1371.5 (West), also linked to enrollee’s reasonable belief).

Formularies
*1998 Cal. Legis. Serv. § 1367.24 (West) – nonformulary drugs – plans that cover prescription drugs must establish an “expeditious” process by which providers may obtain authorization for medically necessary nonformulary drugs.

*1998 Cal. Legis. Serv. § 1367.22 (West) – maintenance drugs – plans that cover prescription drugs may not exclude a drug previously approved for coverage for the enrollee’s medical condition if the provider continues to prescribe it (eff. 7/1/99).

Prohibition on Incentives
Cal. Bus. & Prof. Code § 511, Cal. Health & Safety Code § 1348.6 (West) – no contract between a plan and a licensed health care practitioner, or subcontract between a practitioner/group that contracts with a plan or insurer and another practitioner/group, shall contain an incentive plan that includes a specific payment made to a licensed health care practitioner as an inducement to deny, limit or delay specific, medically necessary, and appropriate services covered under the contract and provided with respect to a specific enrollee or group of enrollees with similar medical conditions (does not prohibit incentive plans that involve general payments or shared-risk arrangements that are not tied to specific medical decisions involving specific enrollees/groups with similar medical conditions, and payments are deemed confidential information) (parallel provisions for life and disability insurers are at Cal. Ins. Code § 10175.5).

Consumer Participation
Cal. Health & Safety Code § 1369 – policy – plans must establish procedures to permit members to participate in establishing the public policy of the plan.

Provider Protections
Cal. Bus. & Prof. Code § 510 (West 1998) – nonretaliation – any retaliation against a health care practitioner principally for advocating for appropriate health care is declared against public policy (see also § 2056).

Selected Benefit Mandates
Cal. Health & Safety Code § 1367.21 (West 1998) – off-label uses of drugs – plans that provide coverage for prescription drugs cannot exclude off-label use of drugs; limited to life-threatening conditions; Medi-Cal plans are exempt.

Cal. Health & Safety Code § 1367.18 (West 1998) – orthotic/prosthetic devices – most plans must cover.

Cal. Health & Safety Code § 1367.19 (West 1998) – special footware – most plans must cover.

1998 Cal. Legis. Serv. AB 2003/Ch. 790 – dental – plans required to cover general anesthesia and associated charges for dental treatment of certain groups, including those with developmental disabilities, when treatment must be rendered in a hospital or surgery center due to the physical or mental condition of the patient.

Cal. Code Regs. tit. 10, § 1300.67 – basic services – health care services plans must provide basic health care services, including medically appropriate home health services.  (See also AB 1899, 1999 Legis. Serv. ch. 1026).



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Colorado

Consumer/Patient Protections

Access
*Colo. Rev. Stat. Ann. § 10-16-704(2) – OON referrals – where no participating provider is available to provide a covered benefit, the carrier must arrange for a referral to a provider with the necessary expertise and ensure that the cost to the covered person is equivalent to that for an in-network referral.

*Colo. Rev. Stat. Ann. § 10-16-705(4) – continuity of care – if a managed care plan terminates a provider without proper notice, the plan must permit covered persons to continue receiving care for 60 days from the termination date.

*Colo. Rev. Stat. Ann. § 10-16-704(9) – access plan – for each managed care network the carrier must develop an access plan that, among other things, describes the carrier’s efforts to address the needs of covered persons with physical and mental disabilities (among other groups).

Colo. Rev. Stat. Ann. § 10-16-107 – OB/GYN – managed care plans must either allow women direct access to a participating OB/GYN or CNM or not unreasonably withhold a referral when requested.

Complaints/UR
Colo. Rev. Stat. Ann. § 10-16-705(14) – preauthorization – provider contracts must state that the sole responsibility for obtaining preauthorizations rests with the participating provider who recommends or orders a service.

Colo. Code of Reg. § 4-2-17 – UR/review decisions – applies to all health plans that base decisions concerning claims on UR; for prospective review, determination within 2 b.d. of obtaining all necessary information, with notice of an adverse determination within 1 b..d of decision; for concurrent review, determination within 1 b.d., with notice of an AD within 1 b.d. (service continued without liability to covered person until notice given); content of notice specified, including instructions for initiating appeal and requesting statement of clinical rationale; may request reconsideration; covered person may designate representative to exercise rights.

Colo. Code of Reg. § 4-2-17 – UR/appeals – first level appeals must be evaluated by a physician in consultation with appropriate clinical peer(s), in each case with no involvement in initial AD, and decision must be rendered and notice given within 20 b.d. of request; notice must include credentials of reviewers, medical rationale and reference to evidence used as basis for decision, and description of process for requesting second level appeal; second level appeal must involve a panel with at least 3 people, the majority of whom were not previously involved and are health care professionals with appropriate expertise (also no direct financial interest in outcome and not plan employees), with meeting within 45 days of receipt of request, and 15 b.d. advance notice with opportunity for covered person to appear, or if not practical for geographic reasons, opportunity to communicate via appropriate technology at carrier expense, plus provision of all relevant information not confidential or privileged upon request; covered person has right to attend, present, submit supporting material, ask questions, and be assisted or represented by another (notice must advise of these rights); written decision within 5 b.d. of meeting, with notice that includes right to contact insurance commissioner’s office and telephone number and address.

Colo. Code of Reg. § 4-2-17 – UR/expedited appeals – where standard review procedures would seriously jeopardize the life or health of the covered person or jeopardize his/her ability to regain maximum function, decision must be made as expeditiously as the medical condition requires, but in no event more than 72 hours after review is commenced (must be provided for all requests concerning follow-up to emergency care).

Emergency Care
Colo. Rev. Stat. Ann. § 10-16-704(5) – emergency care – managed care plans cannot deny benefits for emergency services based upon failure to comply with notification provisions where the medical condition prevented timely notification.

Colo.  Code of Reg. § 4-2-17(VI)(G) – UR/ER – adopts prudent layperson standard for establishing necessity of emergency services, situations in which prior authorization cannot be required, necessity of obtaining care from OON provider (if prudent layperson would have reasonably believed that use of contracting provider would result in delay that would worsen emergency).

Provider Protections
Colo. Rev. Stat. Ann. §§ 10-16-121, 10-16-705(11) – nonretaliation – carriers’ contracts must contain a provision stating that neither the provider nor the carrier shall be prohibited from protesting or expressing disagreement with a medical decision, policy or practice, and that the carrier shall not terminate the contract because the provider expresses disagreement with a decision to deny or limit benefits or assists a patient in seeking reconsideration or discusses with any patient any aspect of the patient’s medical condition or treatment options or plan policy provisions or recommends a health plan based on personal knowledge of the patient’s health needs (but can prohibit maliciously critical comments and terminate for material misrepresentation); carriers are prohibited from penalizing providers for good faith reports to regulators or discussions of financial arrangements with patients.



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Connecticut

Link to Connecticut Legislature: http://prdbasis.cga.state.ct.us/BASIS/TSPBKCP/LIN1/PUB/MSF

Consumer/Patient Protections

Access
Conn. Gen. Stat. Ann. § 38a-530b – OB/GYNs – group health carriers must permit direct access to OB/GYNs and may permit OB/GYNs to serve as PCPs.

Complaints/UR
1997 Conn. Legis. Serv. P.A. No. 97-99 § 14 – grievances – general requirement that MCO have one and inform enrollees about it.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 20 – independent review – any enrollee or provider with enrollee consent may appeal a denial to the commissioner, but only after exhausting internal MCO or URO mechanisms; the filing fee is $25 (waivable); the decision is binding.

Conn. Gen. Stat. Ann. §§ 38a-226-38a-226d – UR standards – sets timeframes for UR, specifies content for notices, qualifications for reviewers, and types of appeals that must be provided, including expedited review for emergency or life-threatening situations; prohibits financial incentives based on number of denials.

Disclosure
1997 Conn. Legis. Serv. P.A. No. 97-99 § 12 – gag clauses – MCO contracts with providers may not prohibit discussion of any treatment options with patients, or disclosure of compensation methods to an enrollee who inquires.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 8 – UR disclosure – MCOs must provide enrollees and potential enrollees with a plan description including the number of UR denials and the number upheld and reversed on appeal (must also include enrollee satisfaction information).  (Procedures for maintaining confidentiality must also be described.)

1998 Conn. Legis. Serv. amendment to P.A. No. 97-99 § 8 – formulary disclosure – plan descriptions must also describe the use of drug formularies or any limits on the availability of prescription drugs and the procedure for obtaining information on the availability of specific drugs covered.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 13 – report cards – consumer report cards are to be distributed by the commissioner of insurance beginning 3/15/99.

Emergency Care
1997 Conn. Legis. Serv. P.A. No. 97-99 § 26 – emergency care – adopts prudent layperson standard.

Conn. Gen. Stat. Ann. § 38a-525a – emergency care – group health policies may not direct an enrollee to obtain approval before calling 9-1-1 in a life or limb threatening emergency (enrollee belief).

Provider Protections
*1997 Conn. Legis. Serv. P.A. No. 97-99 § 7 – provider profiling – MCOs that measure provider performance must make allowances for the severity of illness or condition of the patient mix and for patients with multiple illnesses or conditions, must share the documentation with regulators, and must inform enrollees and providers of their methodology upon request.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 9 – nonretaliation – MCOs are prohibited from retaliating against providers for assisting enrollees with appeals.

Selected Benefit Mandates
Con. Gen. Stat. Ann. § 38a-518b – off-label uses of drugs – applies to group health policies, limited to cancer.

Con. Gen. Stat. Ann. § 38a-520 –home health services – applies to group health policies, includes medical social services.

Miscellaneous
1997 Conn. Legis. Serv. P.A. No. 97-99 § 21 – compliance with laws – MCOs must conform to all applicable state and federal antidiscrimination and confidentiality statutes and have written confidentiality policies and procedures.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 11 – coinsurance payments – coinsurance payments must be calculated based on the lesser of provider/vendor charges and or the amount payable by the MCO.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 10 – no limitation of action – MCOs may not limit causes of action or contract rights otherwise possessed by enrollees by contract.

1997 Conn. Legis. Serv. P.A. No. 97-99 § 27 – mental health parity – group health insurance policies must provide coverage for biologically-based mental or nervous conditions at least equal to coverage for medical or surgical conditions. (dealt with in separate legislation in most other states)



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Delaware

Consumer/Patient Protections

 Access
*Del. Reg. § 69.305 – continuity of care – except in cases where termination was due to unsafe practices, MCOs must assure continued coverage of services at the contract price for up to 120 days [from notice? termination?] in cases where it is medically necessary for the enrollee to continue treatment with the terminated provider.

Del. Code Ann. tit. 18, §§ 3342, 3556 – OB/GYNs – insurers must permit OB/GYNs to serve as PCPs if certain  conditions are met and must allow direct access to OB/GYNs.

Del. Reg. § 69.402 – access plan – MCOs must annually submit to the insurance department policies and procedures for measuring and assessing the adequacy of the network.

Del. Reg. § 69.402(B) – OON providers – MCOs shall make acceptable service arrangements with the provider and enrollee if the appropriate level of service is not available at no extra cost to the enrollee.

Complaints/UR
Del. Reg. § 69.403 – UR/general standards – protocols must be periodically reviewed and updated, and with the exception of internal or proprietary quantitative thresholds, be readily available, upon request, to affected providers and enrollees; compensation to persons providing UR services shall not contain direct or indirect incentives to make inappropriate decisions, e.g., compensation may not based on the quantity or type of adverse determinations rendered; all determinations must be made by appropriately qualified staff, and all determinations to deny or limit an admission, service, procedure or extension of stay must be rendered by a physician and must made in accordance with clinical and medical criteria and standards and take into account the individualized needs of the enrollee.

Del. Reg. § 69.404 – UR/appeals – three stages (informal internal, formal internal, and formal external); correspond to Colorado in terms of general parameters, except for stage 3, external review; stage 1 timeframes are 72 hr. maximum for expedited appeals (imminent, emergent or serious threat to health), 5 b.d. for others; in stage 2, enrollee has right to attend, present, submit supporting material, etc., and timeframe is 72 hr. maximum for expedited review, 30 days from receipt of request for others (with extension for reasonable cause).

Del. Reg. § 69.404 – UR/independent review – MCO charged with maintaining formal external review process, with review meeting within 45 days of request; includes provision for enrollee to attend/communicate via appropriate technology at MCO request, and rights similar to stage 2, with written decision within 5 b.d. of meeting.

Del. Reg. § 69.404(A)(3) – UR/MCO-appointed representative – at any stage of the appeal process, upon enrollee request, the MCO must appoint a member of its staff with no direct involvement in the case to represent/assist the enrollee, and the appealing enrollee must be notified of this right.

Disclosure
Del. Code Ann. tit. 18, §§ 3303, 6407 – gag clauses – health insurance policies/HMO contracts may not contain any provision prohibiting health care providers from giving patients information regarding diagnoses, prognoses, and treatment options.

Emergency Care
Del. Reg. §§ 69.1, 69.402(C) – emergency care – adopts prudent layperson standard in definition of emergency medical condition; MCOs may not require prior authorization for treatment of such a condition (= screen and stabilize); emergency and urgent care services must include 24x7 medical and psychiatric care and out of area care for urgent or emergency conditions where the enrollee cannot reasonably access IN services.

Nondiscrimination
*Del. Reg. § 69.307 – nondiscrimination – no MCO may cancel or refuse to renew an enrollee solely on the basis of his/her health; pre-existing condition clauses may not extend longer than 12 months from enrollment.

Prohibition on Incentives
Del. Reg. § 69.307 – incentives – incentives to a provider to provide less than medically necessary services are prohibited.

Provider Protections
Del. Code Ann. tit. 18, §§ 3339, 6408 – nonretaliation – insurers/HMOs may not refuse to contract with or compensate providers solely based on their good faith communication with patients concerning the insurer’s products or services.

Del. Reg. § 69.307 – nonretaliation – MCOs may not penalize providers for good faith reports to state authorities re threats to patient health or welfare.

*Del. Reg. § 69.401(C) – nondiscrimination/selection criteria – professional selection criteria shall not be established in a manner that would allow an MCO to avoid high-risk populations by excluding providers because they are located in geographic areas that contain populations or providers presenting a risk of higher than average claims, losses or health services utilization, or that would exclude providers because they treat or specialize in treating populations presenting a risk of higher than average claims, losses or health services utilization.



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District of Columbia

Consumer/Patient Protections

Disclosure
D.C. Code Ann. § 35-4506(h) – gag clauses – HMO contracts with providers may not interfere in discussions between patient and provider concerning treatment options; carrier contracts with providers must require providers to discuss treatment options with patients; HMOs may not retaliate against providers solely based on discussion of treatment options with patients.

Provider Protections
D.C. Code Ann. § 35-4506(h) – nonretaliation – HMOs may not retaliate against providers solely based on discussion of treatment options with patients.



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Florida

Consumer/Patient Protections

Access
*Fla. Stat. Ann. § 641.51(5) – OON referrals – HMOs and prepaid plans must have a policy to determine when referrals to out-of-network “specially qualified providers” should be provided to address “unique medical needs.”

*Fla. Stat. Ann. § 641.51(6) – standing referrals – HMOs and prepaid plans must have policies and procedures for the provision of standing referrals to subscribers with chronic and disabling conditions which require ongoing specialty care.

*Fla. Stat. Ann. § 641.51(7) – continuity of care – HMOs and prepaid plans must allow subscribers with life-threatening or disabling and degenerative conditions (plus pregnancy) to continue care for 60 days with a terminated provider.

Fla. Stat. Ann. § 641.19 - OB/GYNs – HMOs must permit participating OB/GYNs to serve as PCPs.

Fla. Stat. Ann. § 641.31(33) – dermatologists – HMOs that offer dermatological services must provide direct access to participating dermatologists for office visits and minor procedures and testing, within certain limits.

Complaints/UR
Fla. Stat. Ann. § 641.511 – grievances – one year window for submission of grievances to HMOs/prepaid plans; 30-day window for internal appeal of adverse determinations; minimum requirements for grievance procedures include provision of a toll-free number, expedited review for grievances classified as urgent, and development of a procedure for assisting individuals who are unable to submit a written grievance; 60-90 day timeframe for action on standard reviews, shortened to 72 hours for expedited review; service continued without liability to subscriber until notice in the case of concurrent review; subject to administrative sanctions for noncompliance; no independent review until internal review is completed, but subscriber may submit a copy of grievance to agency at any time.

Fla. Stat. Ann. § 408.7056 – independent review – state regulatory agency is to implement a consumer assistance program that includes a review panel that meets periodically to consider cases not resolved through plans (HMOs, PPOs) internal grievance procedures; the panel consists of agency and insurance department staff, which may contract for medical expertise; focused on instances of violation of law; parties have opportunity to appear before panel and panel must notify them that it has transmitted its recommendations to the agency within 30 days after the meeting; the agency sends a response to the parties within 30 days of its receipt of a recommendation.

Fla. Stat. Ann. § 641.60 – consumer assistance – establishes statewide managed care ombudsman committee.

Disclosure
Fla. Stat. Ann. § 641.54 – disclosure – HMOs and prepaid plans must provide information concerning the following upon request: the authorization and referral process, determinations of medical necessity, prescription drug benefits, policies and procedures respecting confidentiality, the decision making process regarding experimental treatments, and policies and procedures for addressing the needs of NESPs, etc.

Fla. Stat. Ann. § 641.315(8) – gag clauses – HMOs contracts with providers may not contain any provision restricting communication with patients regarding medical care or treatment options.

Fla. Stat. Ann. § 641.3903(13) – misrepresentation – HMOs may not knowingly mislead potential enrollees as to the availability of providers.

Emergency Care
Fla. Stat. Ann. §§ 641. 19, 641.31(12), 641.513 – emergency care – HMOs may not require prior authorization for emergency care or deny payment based on failure to give notice prior to or within a certain time period; HMOs must use the state definitions for emergency condition (which includes concept of reasonable expectation), etc. (§ 627.6472 covers insurance policies with exclusive provider provisions).

Nondiscrimination
*Fla. Stat. Ann. § 641.3903(12) – discrimination – HMOs may not engage or attempt to engage in discriminatory practices that discourage participation on the basis of actual or perceived health status of Medicaid recipients.

Selected Benefit Mandates
Fla. Stat. Ann. § 641.31(26)(a) – diabetes – HMOs and prepaid health plans must cover “all medically appropriate and necessary” equipment, supplies, and services used to treat diabetes.

Fla. Stat. Ann. § 641.31(27) – osteoporosis – HMOs must cover “medically necessary” diagnosis and treatment of osteoporosis for high-risk individuals.

Fla. Stat. Ann. § 641.31(32) – post-mastectomy breast reconstruction – applies to HMOs that cover mastectomies.

Fla. Stat. Ann. § 641.31094 – bones and joints in the facial region – applies to all HMOs that cover surgical procedures involving bones and joints.

Fla. Stat. Ann. § 627.4236 (West 1998) – bone marrow transplants – insurers and HMOs that cover cancer treatment may not exclude coverage for BMTs recommended by the referring and treating physicians as experimental if the particular use is accepted within the appropriate oncological specialty and according to rules developed by the state administrative agency.

Fla. Stat. Ann. § 627.4239 – off-label uses of drugs – applies to all insurers; limited to treatment of cancer.

Miscellaneous
Fla. Stat. Ann. § 641.28 – remedies – in any civil action brought to enforce an HMO contract, the prevailing party is entitled to recover attorney’s fees and court costs.

Insurance Protections (examples below; these provisions do not address problems with managed care per se; many states have similar provisions)
*Fla. Stat. Ann. § 641.31073 – discrimination – HMOs that offer group coverage may not establish rules for eligibility based on health status, medical condition, claims experience, receipt of health care, or disability (but may limit the amount, level or nature of benefits for similarly situated individuals); premium variations are permitted, so long as they apply to all similarly situated individuals. (relation to HIPAA?)

Fla. Stat. Ann. § 641.31 – dependent children - general insurance protections include provisions that require HMOs to (a) cover newborn children, to include necessary care for congenital defects, etc. and (b) provide continuing coverage (beyond age limits) for children who are incapable of self-sustaining employment by reason of mental or physical handicap and dependent.



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Georgia

Consumer/Patient Protections

Access
*Ga. Code Ann. § 33-20A-9(2) – nonformulary drugs – MCOs that use formularies must have a written procedure that allows patients to obtain nonformulary drugs “without penalty and in a timely fashion” where the formulary’s equivalent (a) has been ineffective in treating the patient or (b) causes or is reasonably expected to cause an adverse reaction.

Ga. Code Ann. § 33-24-59 – OB/GYNs – direct access provision applicable to insurers, HMOs, etc.

Complaints/UR
Ga. Code Ann. § 33-20A-5(3) – grievances – MCOs must provide a “prompt and meaningful” hearing for denials, with non-medical director physician representation on the hearing panel; if the outcome is adverse notice must include specific findings.

Ga. Code Ann. § 33-20A-31 – independent review – threshold determination whether treatment sought reasonably appears to be covered; enrollee must have received notice of an adverse decision or a determination that the proposed treatment is excluded as experimental; in the case of an experimental exclusion, the enrollee must have a terminal condition or the enrollee’s ability to regain or maintain maximum function must be impaired by withholding the treatment (in the judgment of the treating physician) and the treating physician (who is board certified or eligible and qualified to treat the condition) certifies that there is no standard treatment available more beneficial than the proposed treatment and that scientifically valid studies using accepted protocols published in peer reviewed literature demonstrate that the proposed treatment is likely to be more beneficial for the enrollee than available standard treatment and the treatment would be covered but for the determination that it is experimental; at least $500 must be at stake; the MCO is required to pay for the independent review; eligible enrollees must be given instructions on how to request review; the IRO decision is final and binding on the MCO; 72 hour expedited review available, otherwise 15 b.d.+; conflict of interest rules apply.

Ga. Code Ann. § 33-20A-31 – IR/medical necessity – for purposes of IR, defined as care based upon generally accepted medical practices in light of conditions at the time of treatment which is (A) appropriate and consistent with the diagnosis and the omission of which could adversely affect or fail to improve the eligible enrollee’s condition; (B) compatible with the standards of acceptable medical practice in the U.S.; (C) provided in a safe and appropriate setting given the nature of the diagnosis and the severity of the symptoms; (D) not provided solely for the convenience of the eligible enrollee or the convenience of the provider; and (E) not primarily custodial care, unless that is a covered benefit.

Ga. Code Ann. § 33-20A-31 – IR/experimental – in making a determination as to whether a treatment is experimental, the expert reviewer must determine whether the treatment has been approved by the FDA or whether medical and scientific evidence (defined term) demonstrates that the expected benefits of the proposed treatment would be greater than the benefits of any available standard treatment and that the adverse risks of the proposed treatment will not be substantially increased over those of standard treatments; for either determination, the reviewer must apply prudent professional practices and assure that at least two documents support the decision.

Disclosure
Ga. Code Ann. § 33-20A-5(1) – incentive disclosure – MCOs must disclose limited utilization incentive plans to enrollees and prospective enrollees upon request (parallel provision covering HMOs only at § 33-21-13(c); parallel provision covering insurers, HMOs, and private health benefit plans at § 31-11-82).

Emergency Care
Ga. Code Ann. §§ 33-20A-3, 33-20A-5, 33-20A-9(1) – emergency care – applies to all managed care plans; prudent layperson standard; if judged necessary by the provider, services may be initiated without prior authorization and MCOs and private health plans must pay (parallel provision relating to HMOs only at § 33-21-18.1).

Prohibition on Incentives
Ga. Code Ann. § 33-20A-6 – incentives – MCOs may not use financial incentive programs that directly compensate providers for providing less than medically necessary and appropriate care, but capitated payment arrangements consistent with the intent of this section are not prohibited.

MCO Liability
Ga. Code Ann. § 51-1-48 (West 1999) (HB 732) – negligence – any person or entity that administers benefits or reviews claims under a managed care plan must exercise ordinary diligence to do so in a timely and appropriate manner in accordance with the practices and standards of the profession of the health care provider generally; any injury or death to an enrollee resulting from a want of such ordinary diligence is a tort from which recovery may be had against the MCO offering the plan (but no punitive damages).

Provider Protections
Ga. Code Ann. § 33-20A-7 – nonretaliation – no health care provider may be penalized for discussing medically necessary or appropriate care with or on behalf of his or her patient.

Selected Benefit Mandates
*Ga. Code Ann. § 33-24-59.1 – clinical trials – any plan that provides major medical coverage for dependent children must cover the routine patient care costs incurred in connection with a dependent child’s participation in an approved clinical trial for the treatment of children’s cancer.

Ga. Code Ann. § 33-24-59.2 – diabetes – managed care plans and other major medical policies or plans must offer coverage.

Miscellaneous

*Ga. Code Ann. § 33-20A-5(3) – QA – MCOs must have a QA program that includes mechanisms to detect both underutilization and overutilization of services. (General mandates to have some kind of QA program are common, undoubtedly part of model HMO act.)



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Hawaii

Consumer/Patient Protections

Complaints/UR
1998 Hawaii Sess. Laws Act 178 § 6 – independent review – after exhausting all internal review and appeal procedures, an enrollee may appeal an adverse decision to a 3-member review panel appointed by the commissioner (an MCO representative and a provider, both uninvolved, and the commissioner or his/her designee).

Disclosure
*1998 Hawaii Sess. Laws Act 178 § 4(b) – disclosure of treatment options – providers in managed care plans must discuss all treatment options with an enrollee and ensure that persons with disabilities have an effective means of communication with the provider and other members of the managed care plan.

1998 Hawaii Sess. Laws Act 178 § 4(d) – gag clauses – managed care plans may not impose any prohibition or negative treatment upon a provider for disclosing any information regarding treatment options or care.

Emergency Care
1998 Hawaii Sess. Laws Act 246, §§ 431.10A-, 432.1-, 432D-  – emergency care – prudent layperson standard; health plans must cover emergency services without prior authorization (out of network, if a prudent layperson would have believed that the time required to reach a participating provider placed him/her in danger, etc.).

Miscellaneous
1998 Hawaii Sess. Laws Act 178 § 10(b)(5) – confidentiality – a managed care plan shall ensure confidentiality of records and shall not disclose individually identifiable data or information pertaining to the diagnosis, treatment, or health of any enrollee, except as provided under law.

1998 Hawaii Sess. Laws Act 178 § 8 – remedies – exclusive enforcement by the commissioner.



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Idaho

Consumer/Patient Protections

Access
Idaho Code § 41-3915(2) – OB/GYNs – MCOs must allow members direct access to OB/GYNs and permit OB/GYNs to serve as PCPs.

Complaints/UR
Idaho Code § 41-3918 – grievances – MCOs must provide “reasonable” procedures to assure “prompt” review.

Idaho Code § 41-3930 – UR standards – MCOs must adopt criteria that are “based on sound patient care and scientific principles” and “sufficiently flexible to allow deviations” when justified, and procedures for timely review by clinical peers; MCOs must respond to requests for prior authorization for non-emergency services within 2 business days.

Disclosure
Idaho Code § 41-3914(1) – formularies – MCOs must provide to enrollees and make available for inspection by public on annual basis, among other things, a statement as to whether the MCO includes a limited formulary and a statement that the formulary will be made available to any prospective member upon request.

Emergency Care
Idaho Code §§ 41-3903(7), 41-3930(2) – emergency care – MCOs may not require prior authorization for emergency services (definition incorporates prudent layperson standard).

Nondiscrimination
*Idaho Code § 41-3915(3) – discrimination – MCOs may not cancel the enrollment of a member or refuse to transfer a member from group to individual basis for reasons relating to health status. (check for this kind of HIPAA-related provision in other states)

Prohibition on Incentives
Idaho Code § 41-3928 – incentive prohibition – MCOs may not employ incentive plans that includes specific payments to providers as an inducement to deny, limit, or delay specific, medically necessary, and appropriate covered services provided with respect to a specific member or group of members with similar medical conditions; incentive plans that involve general payments and shared risk agreements not tied to specific medical decisions involving specific members or groups of members with similar medical conditions are not prohibited.

Consumer Participation
Idaho Code § 41-3916 – policy and operation – MCOs must establish a mechanism to provide members an opportunity to participate in matters of policy and operation.

Provider Protections
Idaho Code § 41-3927(4) – contract terms – MCOs may not require that a provider deny a member access to services not covered by the plan, etc.

Idaho Code § 41-3927(5) – nonretaliation – MCOs may not refuse to contract with or compensate providers solely because they have communicated in good faith with patients regarding the MCO’s products as they relate to the needs of the patients; MCOs may not penalize providers practicing in conformity with community standards solely for advocating on behalf of patients.



Illinois

Consumer/Patient Protections

Access
215 Ill. Comp. Stat. Ann. 125/5-3.1, 5/356r – OB/GYNs – HMOs and other insurers that use PCPs must allow a woman to designate an OB/GYN to whom the woman has direct access.

Complaints/UR
215 Ill. Comp. Stat. Ann. 125/4-6 – complaints – HMOs must have “reasonable procedures” for complaint handling; when a complaint is received by the dept. of insurance, notice is sent to the HMO, which has 21 days to respond.

215 Ill. Comp. Stat. Ann. 125/4-10 – independent second opinions – HMOs must offer review by an unaffiliated physician with the same class of license as the PCP in the event of a dispute between the PCP and HMO regarding the medical necessity of a covered service (with a nonretaliation provision attached).

Selected Benefit Mandates
*215 Ill. Comp. Stat. Ann. 125/4-5 – organ transplants – HMOs may not deny reimbursement for an otherwise covered expense incurred in an organ transplant procedure solely on the basis that the procedure is experimental [i.e., experimental or investigational] unless the Office of Health Care Technology Assessment has determined that the procedure is experimental or there is insufficient data to determine whether it is clinically acceptable.

215 Ill. Comp. Stat. Ann. 125/4-6.3, 5/370r – off-label uses of drugs – applies to HMOs and all group policies that cover prescribed drugs, limited to cancer treatment.



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Indiana

Consumer/Patient Protections

Access
*Ind. Code Ann. § 27-13-36-5 (West 1998) – OON referrals – when a PCP determines that a service is needed and the HMO determines that the type of service is covered and is not available in-network, the PCP and HMO must refer the enrollee to an appropriate out-of-network provider “within a reasonable amount of time and within a reasonable proximity”; payment to the provider is the lesser of the UCR charge for the area or an agreed amount, with the enrollee responsible only for the deductible or copay applicable to in-network care; contract terms penalizing PCPs making this kind of determination are prohibited.

*Ind. Code Ann. §§ 27-13-37-2, 27-13-37-3 (West 1998) – standing referrals/specialists as PCPs – HMOs must develop a system to allow enrollees to use appropriate participating providers to manage their condition when their PCPs determine that this is warranted by the condition, for as along as warranted; contract terms penalizing PCPs making this kind of referral are prohibited; eff. 7/1/99 enrollees must be given a choice of appropriate participating providers when a referral is made.

*Ind. Code Ann. §§ 27-13-36-6, 27-13-36-11 (West 1998) – continuity of care – HMO contracts with providers must require the provider to continue to treat an enrollee for up to 60 days after termination at the enrollee’s election; HMOs must develop standards for continuity of care following enrollment.

Ind. Code Ann. § 27-8-24.7-5 (West 1998) – OB/GYNs – insurers including HMOs must permit OB/GYNs to serve as PCPs.

*Ind. Code Ann. § 27-13-36-10 (West 1998) – access plan – HMOs must demonstrate to the commissioner that they have an access plan to meet the needs of enrollees, including the vulnerable and underserved and NESPs.

*Ind. Code Ann. § 27-13-36-3 (West 1998) – proximity – HMOs that cover specialty medical services and mental and behavioral health services must demonstrate to the department that offered services are located within reasonable proximity to subscribers (eff. 7/1/99).

Complaints/UR
Ind. Code Ann. § 27-13-37-5 (West 1998) – second opinions – HMOs must allow an enrollee to obtain a second opinion from an appropriate participating provider upon request.

Ind. Code Ann. §§ 27-13-10-5 to 27-13-10-13 (West 1998) – grievances – HMOs must accept grievances orally or in writing, offer a toll-free number (capable of handling the languages of the major population groups served), and offer assistance with filing; procedures must include standards for timeliness, under normal circumstances not to exceed 20 business days from the filing date; members of panels that review appeals must be qualified and free of direct conflicts, appeals must be resolved not later than 45 days after the filing date, and grievance resolution notices must contain specified information.

*Ind. Code Ann. §§ 27-13-39-2, 27-13-39-3 (West 1998) – experimental treatments – HMOs must disclose limits on coverage for experimental procedures, drugs, etc., including processes for making determinations and criteria; HMOs must provide enrollees denied services notice of the basis of denial and the right to appeal; in an emergency or where the enrollee’s condition is life-threatening the HMO has 72 hours to complete a review.

Ind. Code Ann. § 27-13-39-1 (West 1998) – technology assessment – HMOs must have procedures to evaluate technologies and their applications for coverage that include review of information from regulatory bodies and published scientific literature and involve appropriate professionals in the decision making process.

Disclosure
Ind. Code Ann. § 27-13-15-1 (West 1998) – gag clauses/nonretaliation – HMO contracts with providers may not prohibit disclosure of incentives to limit services or treatment options and may not penalize providers for disclosure.

Emergency Care
Ind. Code Ann. §§ 27-13-1-11.7, 27-13-36-9 (West 1998) – emergency care – HMOs must pay for emergency care without prior authorization and without regard to contractual relationships, based on prudent layperson standard.

Formularies
*Ind. Code Ann. § 27-13-38-1 (West 1998) – formularies/nonformulary drugs and devices – HMOs may use formularies, but only if (a) the formularies are developed, reviewed, and updated in consultation with and with the approval of a committee with a physician majority, and (b) there is an expeditious process for an enrollee to obtain  a medically necessary and appropriate nonformulary drug or device without prior HMO approval and without penalty or additional cost-sharing; HMOs may not void or refuse to renew a contract because a provider prescribed a drug or device as provided.

Miscellaneous
Ind. Code Ann. § 27-13-7-14.8 (West 1998) – mental health parity – HMO contracts may not impose aggregate lifetime limits or annual limits on coverage of services for mental illness if similar limitations are not imposed on coverage for other conditions (does not apply after 9/29/2001).

Ind. Code Ann. § 27-13-29-1 (West 1998) – DTPA – HMOs are subject to laws concerning unfair or deceptive acts or practices to the extent not in conflict with laws regulating HMOs.  (standard for most states)



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Iowa

Consumer/Patient Protections

Disclosure
Iowa Admin. Code r. 191-40.22(514B) – gag clauses – HMOs may not prohibit providers from, or punish providers for, discussing treatment options with patients, advocating for patients in UR or grievance processes, or reporting the HMO to regulators in good faith (roughly parallel provisions for PPOs at r. 191-27.2(514F) and 191-27.4(514F).

Emergency Care
Iowa Admin. Code r. 191-40.20(514B), 191-40.21(514B) – emergency care – prudent layperson standard adopted; HMOs may not deny reimbursement for emergency services solely on the grounds that services were performed by a noncontracted provider (parallel provisions for PPOs at 191-27.8(514F).

Consumer Participation
Iowa Code Ann. § 514B.7 – policy and operation – HMOs must establish a mechanism to allow reasonable representation of enrollees in matters of policy and operation.

Iowa Admin. Code r. 191-40.4(514B) (1998) – governance – “reasonable representation” requires that not less than 30 percent of the governing board members be enrollees who are not providers or associated with a provider; enrollees must be given the opportunity to nominate representatives.



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Kansas

Consumer/Patient Protections

Access
*Kan. Stat. Ann. § 40-4607 (1997) - standing referrals – health insurers (inclusive definition) must have a plan by which an insured with a life-threatening, chronic, degenerative or disabling condition or disease requiring specialized medical care over a prolonged period of time may receive a referral to a qualified specialist who will coordinate specialty care.

*Kan. Stat. Ann. § 40-3230 (1997) – continuity of care – HMOs must continue care with a terminated provider for up to 90 days where “continuation of such care is medically necessary and in accordance with the dictates of medical prudence” and the enrollee has special circumstances such as a disability or life-threatening illness.

Complaints/UR
Kan. Stat. Ann. § 40-3228 (1997) – grievances – HMOs are given certain timeframes, but the timeframe of 20 working days for the completion of an investigation appears to be infinitely extendable by the HMO.

Disclosure
Kan. Stat. Ann. § 40-4603 (1997) – gag clauses – health insurers may not prohibit or restrict providers from discussing/disclosing any medically appropriate health care information or from advocating on behalf of insureds in UR or grievance processes.

Emergency Care
Kan. Stat. Ann. §§ 40-3229, 40-4603 (1997) – emergency care – HMOs may not base denials solely on failure to receive prior authorization; health insurers may not deny coverage for care warranted by symptoms or for a screening exam and stabilizing treatment, regardless of authorization.

Prohibition on Incentives
Kan. Stat. Ann. § 40-4605 (1997) – incentive prohibition – health insurers may not employ compensation arrangements with providers that may directly or indirectly serve as an inducement to reduce or limit the delivery of medically necessary services with respect to an insured; capitation payments and other risk-sharing provisions are not considered inducements.



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Kentucky

Consumer/Patient Protections

Access
*1998 Ky. Acts ch. 496, § 28(1) – OON referrals – managed care plans must demonstrate that they offer an adequate number of accessible specialists and subspecialists, and when the specialist needed for a specific condition is not represented, enrollees have access to nonparticipating providers without prior plan approval.  (new section of subtitle 17A of KRS Ch. 304)

Complaints/UR
1998 Ky. Acts ch. 496, § 34 – UR standards – managed care plan medical directors must ensure that (a) UR denials of medical services based on medical necessity are made by a physician and (b) a procedure is implemented whereby physicians have an opportunity to review and comment on protocols.

1998 Ky. Acts ch. 496, § 43 – ombudsman – office created in the consumer protection and education division.

Emergency Care
1998 Ky. Acts ch. 496, §§ 25, 28(4), 59 – emergency care – managed care plans must cover emergency-room screening and stabilization, both in- and out-of-network, without prior authorization for use consistent with the prudent layperson standard.

Nondiscrimination
1998 Ky. Acts ch. 496, § 45 (amending § 304.14-130) – discrimination – plans will not be approved if they exclude or provide terms of coverage for HIV/AIDS that are different than those that apply to any other medical condition or, as to an individual policy, if the benefits provided are unreasonable in relation to the premium.

Provider Protections
*1998 Ky. Acts ch. 496, § 30(1) – profiling – selection or participation standards based on the economics or capacity of a provider’s practice must be adjusted to account for case mix, severity of illness, patient age and other features that may account for higher-than or lower-than-expected costs; plans may not use criteria that would allow an insurer to avoid high-risk populations by excluding providers because they treat or specialize in treating populations presenting a risk of higher-than-average claims, losses, or health services utilization.

Selected Benefit Mandates
Ky. Rev. Stat. Ann. §§ 304.17A-135, 304.38-1936 – breast cancer/HDC – health benefit plans (inclusive term) and HMOs that provide benefits for treatment of breast cancer by chemotherapy must also provide coverage for HDC with ABMT or SCT, which may not be considered experimental.

Ky. Rev. Stat. Ann. § 304.38-1937 – TMJ – health care services contracts that cover treatment of skeletal disorders must all cover medically necessary procedures for TMJ and related disorders.

1998 Ky. Acts ch. 438, § 1 – off-label uses of drugs – applies to all health benefit plans; limited to cancer; includes proviso that HMOs are not required to cover any drug excluded from a formulary for a reasons other than lack of FDA approval for the specific indication.  (new section of subtitle 17A of KRS Ch. 304)

1998 Ky. Acts ch. 476 § 1 – diabetes/outpatient supplies – applies to all health benefit plans issued or renewed after 4/9/98; coverage mandated for equipment, supplies, outpatient self-management training and education, and medications; “private third-party payors may not reduce or eliminate coverage due to the requirements of this section.”  (new section of subtitle 17A of KRS Ch. 304)

Miscellaneous
1998 Ky. Acts ch. 496, § 44 (amending § 304.17A-150) – marketing – unfair trade practices include encouraging individuals or groups to refrain from applying for coverage because of health status, claims experience, etc.



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Louisiana

Consumer/Patient Protections

Access
La. Rev. Stat. Ann. §§ 22:215.17, 2:2027, 40:2206 (West 1998) – OB/GYNs – HMOs, PPOs, etc. may not limit direct access to (participating) OB/GYNs for routine gynecological care.

Complaints/UR
La. Rev. Stat. Ann. § 22:2021 (West 1998) – UR standards – applies to HMOs; general directive that requirements and guidelines “shall not fall below the appropriate standard of care and shall not impinge upon the independent medical judgment of the treating health care provider”; timeframes include 2 working days for decision in urgent need cases (5 for elective cases); failure to timely approve or disapprove a request constitutes authorization; accreditation is evidence of compliance.

La. Rev. Stat. Ann. § 22:2022 (West 1998) – grievances – applies to HMOs; general; accreditation is evidence of compliance.

Disclosure
La. Rev. Stat. Ann. §§ 22:215.18 (West 1998) – gag clauses – MCOs may not include provisions in their provider contracts that interfere with the ability of a provider to communicate with a patient regarding his/her health care; provisions that prohibit providers from soliciting for alternative coverage arrangements for the primary purpose of securing financial gain are not affected.

Emergency Care
La. Rev. Stat. Ann. § 22:657(D)(2) – emergency care – MCO requirements concerning prospective evaluation are inapplicable to an emergency medical condition, defined to incorporate a prudent layperson standard (per (G), an enrollee who does not receive payment within 30 days of claim submission can sue to collect a penalty of double the amount of benefits due plus attorneys fees).

Prohibition on Incentives
La. Rev. Stat. Ann. §§ 22:215.19, 22:2018, 40:2207 (West 1998) – incentive prohibition – MCOs, etc. and their contracting entities may not include provisions in their contracts with providers which include an incentive or specific payment made directly to a provider or provider group as an inducement to deny, reduce, limit, or delay specific, medically necessary, and appropriate services provided with respect to a specific insured or groups of insureds with similar medical conditions; incentive plans that involve general payments, such as capitation payments, or shared-risk arrangements that are not tied to specific medical decisions involving a specific insured or groups of insureds with similar medical conditions are not prohibited.  40:2232?

Provider Protections
La. Rev. Stat. Ann. §§ 22:215.18 (West 1998) – nonretaliation – MCO retaliation against a provider solely on the basis of a medical communication is prohibited (also restrictions on lodging complaints with govermental bodies and patient advocacy).

Selected Benefit Mandates
*La. Rev. Stat. Ann. §§ 22:2004.1, 40:2208 (West 1998) – interpreters – HMOs and PPOs must provide coverage for expenses incurred by any hearing impaired enrollee for services performed by a qualified interpreter/transliterator (other than a family member) in connection with medical treatment or diagnostic consultations.

La. Rev. Stat. Ann. §§ 22:215.22, 22:2027, 40:2209 (West 1998) – breast reconstruction – HMOs, PPOs, etc. that cover mastectomies must cover reconstructive surgery.

La. Rev. Stat. Ann. § 22:215.20 (West 1998) – off-label uses of drugs – applies to all categories of insurers/plans that cover cancer treatment; limited to treatment of cancer.

Miscellaneous
La. Rev. Stat. Ann. § 46:153.3(3) – Medicaid/formulary – the department shall not establish a drug formulary that restricts by any prior or retroactive approval process a physician's ability to treat a patient with a prescription drug that has been approved and designated as safe and effective by the FDA (inclusion of drugs for cosmetic purposes and nonprescription drugs, anorexic drugs, drugs used solely for the treatment of infertility when prescribed for that purpose, cough and cold preparations, and minor tranquilizers is not mandatory).



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Maine

Consumer/Patient Protections

Access
Me. Rev. Stat. Ann. tit. 24-A, § 4303(1) – access – carriers (broad definition) offering managed care plans must provide members reasonable access to services in accordance with standards developed by the super.

Code Me. R. Ch. 850, § 7 – access – HMO applications for certification must include an access plan; access plans must include a description of the HMO’s basis for determining that the network is sufficient to meet basic health care services and how enrollees with special needs (mental retardation, mental illness, behavioral and/or emotional disturbances and developmental delays and disabilities) will be identified.

Code Me. R. Ch. 850, § 7(B)(6) – access – in any case where the HMO has an insufficient number or type of participating provider to provide a covered benefit, the carrier must ensure that the covered person obtains the covered benefit at no greater cost than if the benefit were obtained from a participating provider, or make other arrangements acceptable to the super.

Code Me. R. Ch. 850, § 7(C), (D) – access – specific standards for geographic accessibility and appointment and wait times.

Code Me. R. Ch. 850, § 7(F) – coordination of care – HMOs are not required to provide coverage for OON services more new enrollees if they are transferred to network providers without unreasonably disrupting ongoing care or treatment; HMOs must maintain a written plan for continuity of care in event of contract termination including 60 days notice to affected enrollees and provision for enrollees with special needs/at special risk.

Me. Rev. Stat. Ann. tit. 24, § 2332-G, tit. 24-A, §§ 2847-F, 4241 – OB/GYNs – parallel provisions for HMOs and other carriers; must permit qualified OB/GYNs to serve as PCPs; all group plan contracts must cover an annual exam from a physician or certified nursepractitioner or midwife without prior PCP approval.

Complaints/UR
Me. Rev. Stat. Ann. tit. 24-A, § 4303(4)(A) – grievances – carriers must have a grievance procedure that meets standards developed by the super. and includes timelines (no particular timeline mandated), provision of a written statement with reasons upon conclusion of the process, and decision making by individuals non previously involved in making the decision subject to the grievance.

Code Me. R. Ch. 850, § 89 – grievances – 2 levels of review; timeframe of 20 working days for 1st level (with possibility of extension), and 50 working days for 2nd level; right to appear in person at 2nd level, and majority of panel must be clinical peers not previously involved.

Me. Rev. Stat. Ann. tit. 24-A, § 4303(4)(B) – independent second opinion – in any appeal under the grievance procedure in which a professional medical opinion regarding a health condition is a material issue in the dispute, the aggrieved party is entitled to an independent 2nd opinion paid for by the plan from a participating provider of the same specialty (if none exists, a nonparticipating provider); applies to all carriers.

Me. Rev. Stat. Ann. tit. 24-A, § 4304 – UR – carriers must respond to provider requests for prior authorization of nonemergency services with an answer or request for further information within 2 business days; carriers may not retrospectively deny payment for a previously approved service.

Code Me. R. Ch. 850, § 8 – UR – UR programs must use documented clinical review criteria that are (a) based on published sound clinical evidence and (b) evaluated periodically to ensure ongoing efficacy; compensation may not be based on the quantity of adverse determinations rendered or include other incentives to render inappropriate review decisions; UREs must make initial determinations and give notice of them within 2 working days of obtaining all necessary information (1 working day for concurrent reviews); requirements for notices include statement of clinical rationale including criteria, phone number for assistance.

Code Me. R. Ch. 850, § 8(G) – appeals – appeals must be evaluated by appropriate clinical peer/s who were not involved in initial determination (unless appeal presents new information); notice of decision must be given within 20 working days; where standard timeframe would seriously jeopardize the life or health of a covered person or jeopardize the covered person’s ability to regain maximum function, a decision must be communicated no more than 72 hours after initiation of appeal, with continuation of service paid for by the insurer until notice in the case of concurrent review of emergency services or a previously authorized admission or course of treatment.

Disclosure
Me. Rev. Stat. Ann. tit. 24-A, § 4301 – incentive disclosure – carriers must provide prospective enrollees with a general description of methods used to compensate providers, including capitation and methods in which providers receive compensation based upon referrals, utilization or cost criteria.

Me. Rev. Stat. Ann. tit. 24-A, § 4302(1)(H) – formularies – carriers must provide prospective enrollees (and members of the public upon request) and current enrollees annually with a description of the plan that includes procedures enrollees must follow to obtain drugs subject to a formulary, if any; a description of any formulary and any cost sharing; enrollees may request additional information related to specific drugs  that are not on the formulary.

Me. Rev. Stat. Ann. tit. 24-A, § 4303(3) – gag clauses – carriers offering managed care plans may not restrict a provider from disclosing information regarding the treatment or the decision of any plan to authorize or deny services or benefits.

Emergency Care
Me. Rev. Stat. Ann. tit. 24, § 2302-B, tit. 24-A, §§ 2749-B, 2847-A – emergency care – policies may not include a provision permitting the insurer to impose a penalty for failure to notify the insurer of a hospitalization for emergency treatment.

Code Me. R. Ch. 850, §§ 5, 8(H) – emergency care – carriers must cover emergency services necessary to screen and stabilize a covered person and may not require prior authorization if a prudent layperson acting reasonably would have believed that an emergency condition existed; OON services to screen and stabilize if a prudent layperson would have reasonably believed that use of a network provider would result in a delay that would worsen the emergency; preauthorization may not be retracted absent fraud etc.

Code Me. R. Ch. 850, § 7(E) – emergency care – specialized standards must be utilized for evaluating the need for urgent or emergency services for infants and children and for individuals with chronic conditions.

Nondiscrimination
Me. Rev. Stat. Ann. tit. 24-A, §§ 2846, 4229 – HIV/AIDS – exclusion of HIV/AIDS from coverage, or coverage under more restrictive termsthan for other diseases, is prohibited.

Provider Protections
Me. Rev. Stat. Ann. tit. 24-A, § 4303(3) – nonretaliation – carriers offering managed care plans may not discipline a provider for advocating for medically appropriate health care.

Selected Benefit Mandates
Me. Rev. Stat. Ann. tit. 24, § 2320-F, tit. 24-A §§ 2745-E, 2837-F, 4234-D – off-label uses of drugs/cancer – parallel provisions for each category of insurer/plan; applies if contract/plan covers prescription drugs; limited to drugs used in the treatment of cancer.

Me. Rev. Stat. Ann. tit. 24, § 2320-G, tit. 24-A §§ 2745-F, 2837-G, 4234-E – off-label uses of drugs/HIV or AIDS – parallel provisions for each category of insurer/plan; applies if contract/plan covers prescription drugs; limited to drugs used in the treatment of HIV or AIDS.

Me. Rev. Stat. Ann. tit. 24, § 2320-C, tit. 24-A, §§ 2745-C, 2837-C, 4237 – breast reconstruction – all forms of individual and group coverage subject to HMO regulation and individual policies that cover mastectomies must also cover reconstructive surgery.

Me. Rev. Stat. Ann. tit. 24, § 2320-D, tit. 24-A, §§ 2745-D, 2837-D, 4238 – medical food coverage – HMOs and individual policies must provide coverage for formula and medical food products for persons with inborn errors of metabolism (coverage for low-protein food products may be capped at $3,000).

Me. Rev. Stat. Ann. tit. 24, § 2332-F, tit. 24-A, §§ 2754, 2847-E, 4240 – diabetes supplies – HMOs must provide coverage for equipment and self-management training to treat diabetes if certified as medically necessary by a treating physician or qualified specialist.

Miscellaneous
Me. Rev. Stat. Ann. tit. 24-A, §§ 2749-C, 2843 5-C – mental illness – individual and group health policies must provide benefits for the treatment and diagnosis of specified categories of mental illness under terms and conditions no less extensive than for physical illnesses.



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Maryland

Consumer/Patient Protections

Access
Md Code Ann., Health-Gen. § 19-705.1(d) – special needs plan – HMOs must have a written plan that, among other things, identifies any special groups of members that have unique health problems and describes community health resources and how they will be used.

Md Code Ann., Ins. § 15-112(i) , Health-Gen. § 19-706 – continuity of care – applies to all carriers (broad term); PCPs who have been terminated must continue to provide services to enrollees receiving services from them for at least 90 days after the termination notice (if enrollees request continuation after receiving notice of the termination), and carriers must pay for these services at the contract rate.

Md Code Ann., Ins. § 15-816, Health-Gen. § 19-706 – direct access to OB/GYNs – insurers, service benefit plans and HMOs must classify an OB/GYNs as a PCP or, if the OB/GYN declines, allow a woman direct access for routine gynecological care if the care is medically necessary and the OB/GYN communicates/confers with the PCP

Complaints/UR
Md Code Ann., Ins. §§ 15-10A-01, 15-10A-02 – grievances – carriers must establish a grievance process that includes an expedited procedure for “emergency cases” (definition to be established by IC) that provides for decision within 24 hours; otherwise the carrier has 30 working days to render a decision in prospective cases; content of notice of adverse decision is specified, e.g., specific factual bases for decision in clear, understandable language, reference to specific criteria and standards (use of generalized terms specifically prohibited); carrier cannot escape responsibility by delegating UR function.*

Md. Code Ann., Ins. §§ 15-10A-02(d), 15-10A-03, 15-10A-05 – independent review – complaints may be filed the IC without exhausting internal review processes if the complaint demonstrates a compelling reason (IC to identify circumstances); otherwise, member/provider may file complaint for review of a grievance decision within 30 days of receipt; carriers must provide any information requested by the IC no later than 7 days after receipt of request; expedited procedure for emergency cares to involve decision within 24 hours, otherwise timeframe for review is 30 working days for pending cases and 45 working days for retrospective cases; carriers have the burden of persuasion that their adverse decisions and grievance decisions are correct; qualifications for reviewers specified.

Md. Code Ann., Ins. §§ 15-10B-01 et seq. – private review agents – also regulated; final determinations on appeals must be made by a physician or panel with a physician who is not compensated in a manner that provides a financial incentive directly or indirectly to deny or reduce coverage; notice content requirements similar to those for internal review; 10C concerns certification of medical directors.

Md. Code Ann., Ins. §§ 15-10A-02(f) – ombudsman – health advocacy unit will assist consumers with filing a grievance, and carriers must notify members of availability of service in response to initial contact about an adverse decision.

Md. Code Ann., Ins. § 15-10A-04(c)(3) – criteria – it is an independent violation if the IC, in consultation with an independent review organization, medical expert, the department, of other appropriate entity, determines that the criteria and standards used by an HMO to conduct UR are not (i) objective; (ii) clinically valid; (iii) compatible with established principles of health care; or (iv) flexible enough to allow deviations from norms when justified on a case by case basis.

Md Code Ann., Ins. § 15-122, Health-Gen. § 19-706 – experimental treatments – carriers must (a) disclose definitions of “experimental medical care”; (b) establish or contract to provide a systematic, scientific process to follow for evaluating emerging medical and surgical treatments to ensure that subscribers have access to the latest appropriate treatments, to include a comprehensive literature and data review and input from qualified, independent physicians and other recognized experts; (c) base coverage decisions on the consensus of opinion from its own analysis and knowledge provided via the required process.

Disclosure
Md Code Ann., Ins. § 15-121, Health-Gen. § 19-706 – incentive disclosure – enrollment sales materials must include disclosure in layman’s terms of reimbursement methodologies used to reimburse physicians and the distribution of each $100 received in premium dollars, including the proportions for direct medical care expenses and for plan administration.

Md Code Ann., Ins. § 15-116, Health-Gen. § 19-706 – gag clauses – carriers may not prohibit health care providers from discussing with anyone any information that is necessary or appropriate for the delivery of health care services (does not affect prohibition of tortious interference with contract).

Emergency Care
Md Code Ann., Health-Gen. §§ 19-701, 19-712.5, 19-716 – emergency care – prudent layperson standard adopted; HMOs may not require providers to obtain prior authorization/approval in order to obtain reimbursement for services rendered to meet EMTALA requirements.

Prohibition on Incentives
Md Code Ann., Ins. § 15-113, Health-Gen. § 19-706 – incentive prohibition – a carrier may not reimburse a health care practitioner in an amount less that the sum or rate negotiated in the provider contract; section does not prohibit bonuses or other incentive-based compensation if these do not violate § 19-705.1 of Health-Gen. or deter the delivery of medically appropriate care.

Consumer Participation
Md. Regs. Code tit. 10, § 10.07.11.08 (1998) – policy formulation – HMOs must have written policies governing the provision of services according to stated objectives, and must develop the policies in consultation with specified persons, including one or more enrollee representative(s); at a minimum, the policies must cover admission and discharge, physician services (e.g., medical staff organization), arrangements for services not directly provided by the HMO, and continuity and availability of care through an established referral mechanism and provider contracts.

Provider Protections
Md Code Ann., Ins. § 15-112(e) – nondiscrimination – carriers may not deny an application for participation or terminate participation on the basis of the number of grievances or complaints the provider files on behalf of a patient.

Md Code Ann., Ins. § 15-112(g) – nonretaliation – carriers may not penalize providers for advocating the interests of a patient through complaint, grievance, review or appeal processes.

Selected Benefit Mandates
Md Code Ann., Ins. § 15-827 – clinical trials – does not apply to Medicaid; policies or contacts that must provide coverage for patient cost in a clinical trial as a result of treatment for a life-threatening condition or cancer; must be approved Phase I-III clinical trials for cancer and Phase II-IV for other conditions plus Phase I on a case-by-case basis, facility and personnel must have appropriate expertise, there cannot be a clearly superior noninvestigational alternative and available data must provide a reasonable expectation that the treatment will be at least as effective as the noninvestigational alternative.

Md Code Ann., Ins. § 15-804, Health-Gen. § 19-706 – off-label uses of drugs – policies or contracts that provide coverage for drugs may not exclude off-label uses (if recognized for treatment in any standard reference compendium or the medical literature).

Md Code Ann., Ins. § 15-815 – breast reconstruction – coverage mandate; applies to insurers, nonprofit health service plans, and HMOs.

Md Code Ann., Ins. § 15-822, Health-Gen. § 19-706 – diabetes – insurers, health service plans and HMOs must cover equipment and self-management and educational services certified as necessary by a qualified provider.

Miscellaneous
Md Code Ann., Health-Gen. § 19-729 – marketing – an HMO may not, e.g., advertise or merchandise its services in a way that misrepresents it services or capacity for service or engage in a deceptive, misleading, unfair or unauthorized practice in the area of advertising or merchandising.

Md. Code Ann., Ins. § 27-303 – unfair claim settlement – a failure to meet the requirements of Title 15, subtitle 10A or 10B is defined as an unfair claim settlement practice.

+Note that in Maryland, all of the following are involved in regulation: Insurance Commissioner, Health Education and Advocacy Unit in the Division of Consumer Protection of the Office of Attorney General, Secretary of Health and Mental Hygiene.



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Massachusetts

Consumer/Patient Protections

Access
Mass. Gen. Laws Ann. ch. 176B, § 7 – continuity of care – medical service corporations must continue to provide compensation to terminated physicians at the contract rate until the physicians’ patients have established a relationship with another participating physician.

Emergency Care
Mass. Gen. Laws Ann. ch. 176I, § 3 – emergency care – if a covered person receives emergency care and cannot reasonably reach a preferred provider, payment for care related to the emergency shall be made at the same level and in the same manner as if the covered person had been treated by a preferred provider; applies to plans that offer incentives for covered persons to use the services of preferred providers (including plans offered by HMOs).

Provider Protections
Mass. Gen. Laws Ann. ch. 175, § 110(M), ch. 176B, § 7, ch. 176G, § 6, ch. 176I, § 2 – nonretaliation – insurers, HMOs, PPOs, etc. may not refuse to contract with or compensate a provider solely because the provider has in good faith communicated with a patient regarding the insurer’s products as they relate to the needs of the provider’s patients.

Selected Benefit Mandates
Mass. Gen. Laws Ann. ch. 175, § 110(K) – home care services – broad definition of services to be provided; mandate applies to group medical benefits contracts.

Mass. Gen. Laws Ann. ch. 175, § 47B, ch. 176G, § 4 – mental health services – insurers and HMOs must cover 60 days/year of inpatient treatment at a mental hospital (under some circumstances, 2 days of outpatient treatment can be substituted for 1 day of inpatient treatment); lifetime maximums for treatment for mental conditions must be at least equal to maximums for treatment of other conditions; benefits for inpatient treatment at a general hospital must be the same for mental and other illnesses; and outpatient benefits must be provided up to $500/year.

Mass. Gen. Laws Ann. ch. 176G, § 4 – early intervention – dependent coverage under HMO policies must include early intervention services.

Mass. Gen. Laws Ann. ch. 176A, § 8L, ch. 176B, § 4K, ch. 176G, § 4D – nonprescription enteral formulas for home use – HMOs must cover where ordered by a physician and medically necessary; coverage must include low protein food products, but may be capped at $2500 annually.

Mass. Gen. Laws Ann. ch. 175, § 47K, ch. 176A, § 8N, ch. 176B, § 4N, ch. 176G, § 4E – off-label drug use/cancer – applies to traditional insurers, HMOs, hospital service corporations, etc.; includes provision immunizing attending physicians and HMOs from liability for damages in connection with compliance (references ch. 175, § 47K, L).

Mass. Gen. Laws Ann. ch. 175, § 47O, ch. 176A, § 8Q, ch. 176B, § 4P, ch. 176G, § 4E – off-label drug use/HIV – applies to traditional insurers, HMOs, hospital service corporations, etc., that cover prescription drugs.

Mass. Gen. Laws Ann. ch. 175, § 47R, ch. 176A, § 8O, ch. 176B, § 4O, ch. 176G, § 4F – BMTs – group HMO contracts must cover transplants for metastatic breast cancer if criteria established by the DPH are met.

Mass. Gen. Laws Ann. ch. 175, § 47T, ch. 176A, § 8T, ch. 176B, § 4R, ch. 176G, § 4J – scalp hair prostheses – polices must cover if hair occurs in connection with cancer treatment, up to $350/year; parallel provisions for various types of entities.

Miscellaneous
Mass. Gen. Laws Ann. ch. 176G, § 4B – confidentiality – special confidentiality provision for communications to a psychotherapist, but with some major exceptions.



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Michigan

Consumer/Patient Protections

Access
*Mich. Comp. Laws Ann. § 333.21052(1) – continuity of care – HMOs must provide enrollees with a form that includes a description of how the HMO provides for continuity of care in the event a provider’s participation terminates during the course of treatment.

Mich. Admin. Code r. 325.6635 – access – HMOs must assure the maintenance of professional staff sufficient to meet the needs of the membership; the specialty mix of physicians must be consistent with the projected health needs of the population enrolled or to be enrolled, the experienced need of like organizations within and without the state, and accepted standards consistent with the practice of quality medicine.

Complaints/UR
Mich. Comp. Laws Ann. § 333.21035 – grievances – applies to HMOs’ prospective coverage determinations; in routine cases, final determination must be made not later than 90 calendar days after submission; an expedited procedure must offer an initial determination not later than 72 hours after receipt, and an enrollee or representative has 3 days to request further HMO review or appeal to the department; further HMO review must conclude within 30 days, at which time the enrollee or representative has 10 days to appeal; expedited grievance procedure applies if a physician substantiates that the time frame for a routine grievance “would acutely jeopardize the life of the enrollee.”

Mich. Comp. Laws Ann. §§ 333.20121-333.21088 – independent review – governor appoints advisory commission (half consumers and half representatives of various types of licensees); the chair appoints a task force (commission members plus nonmember experts if necessary) to assist in matters pertaining to licensure and certification of HMOs; an enrollee may file a grievance with the task force after exhausting internal procedures, and the advisory commission renders a determination as to the validity of the grievance and directs measures it considers appropriate under the circumstances.

Disclosure
Mich. Comp. Laws Ann. § 333.21052a – gag clauses – HMOs may not prohibit or discourage health professionals from advocating on behalf of an enrollee for appropriate medical treatment options through the grievance procedure or from discussing with an enrollee or provider health treatments and services, legally required quality assurance plans, or financial relationships.

Mich. Comp. Laws Ann. § 333.21052(2) – incentive disclosure – HMOs must provide upon request to enrollees an indication of the financial relationships between the HMO and any closed provider panel.

Emergency Care
Mich. Comp. Laws Ann. §§ 333.21004, 550.1418, 500.3406k – emergency care – adopts prudent layperson standard in definition of emergency health services for HMOs, nonprofit health care corporations, and expense-incurred policies; covered entities may not deny payment for emergency health services up to the point of stabilization because of the final diagnosis or a failure to get prior authorization.

Provider Protections
See provision concerning gag clauses above.

Consumer Participation
Mich. Comp. Laws Ann. § 333.21051 – governing body – HMO governing body must have a minimum of 1/3 of its membership consisting of adult enrollees who are not responsible for the conduct of, or financially interested in, the HMO’s affairs; each subscriber has 1 vote, and enrollee board members are elected by a simple plurality of the voting subscribers.

Selected Benefit Mandates
Mich. Comp. Laws Ann. § 333.21054b – cancer drugs – HMOs must cover FDA-approved drugs used in antineoplastic therapy plus reasonable costs of administration (includes off-label uses, with standard caveats).

Miscellaneous
Mich. Comp. Laws Ann. § 333.21034 – rate-setting – insurance commissioner may approve a rate differential based on disability if it is supported by sound actuarial principles…and it related to actual and credible loss statistics or reasonably anticipated experience in case of new coverages.



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Minnesota

Consumer/Patient Protections

Access
*Minn. Stat. Ann. § 62Q.56 – continuity of care – health plan companies (inclusive definition) must have a written plan that explains, among other things, the procedures by which enrollees will be transferred to other participating providers, when special medical needs, special risks, or other special circumstances require them to have a longer transition period or be transferred to nonparticipating providers, who will identify these enrollees and by what criteria, and how continuity of care will be provided for these enrollees; provider termination: if the contract termination was not for cause, enrollees can request a referral to the terminating provider for up to 120 days if they have special medical needs or have other special circumstances (the HPC may require supporting documentation), and each request must be considered on a case-by-case basis; change in health plan: for group/continuation and conversion coverage only, where the employer changes plans, HPCs must have a process to handle requests from new enrollees with special needs, risks or other special circumstances for up to 120 days continuation with a former provider.

*Minn. Stat. Ann. § 62Q.07 – access – HPCs must have action plan that includes, among other things, a detailed description of the HPC’s policies and procedures for enrolling and serving high risk and special needs populations (defined to include recipients of medical assistance and persons with chronic conditions and disabilities), including the barriers present for these populations and how the HPC is addressing them in order to provide greater access; escape clause for MCOs with 50,000 or fewer in-state managed care enrollees—can satisfy requirement simply by reporting that they have no policies and procedures and have undertaken no activities (if true).

*Minn. Stat. Ann. § 62Q.58 – standing referrals – HPCs must establish a procedure by which an enrollee may apply for a standing referral to a specialist if referrals are required for coverage, including criteria and conditions; the PCP remains responsible for coordination of care and specialist may not make secondary referrals related to primary care without prior PCP approval, but an enrollee may request primary care services from that specialist and the specialist, in agreement with the PCP, may elect to provide those services following HPC procedures.

Minn. Stat. Ann. § 62Q.52 – OB/GYNs – HPCs must allow female enrollees direct access (IN) for annual exams, maternity care, and evaluation and treatment of acute gynecological conditions or emergencies.

*Minn. R. 4685.1010 – timely access – HMOs, either directly or through provider contracts, must arrange for covered health care services including referrals to participating and nonparticipating specialty physicians to be accessible to enrollees on a timely basis in accordance with medically appropriate guidelines consistent with generally accepted practice parameters.

Complaints/UR
Minn. Stat. Ann. § 62D.12 – anti-“gotcha” provision – HMOs may not deny or limit coverage of a service which the enrollee has already received solely on the basis of lack of prior authorization or second opinion, to the extent that the service would otherwise have been covered under the contract had prior authorization or a second opinion been obtained.

Minn. Stat. Ann. §§ 62J.78, 62J.79 – ombudsman – establishes office of health care consumer assistance, advocacy, and information within the department of health; director must appoint at least nine consumer advocates; empowered to assist enrollees in understanding and asserting their contractual and legal rights, including advocating for them in administrative proceedings, in obtaining referrals, and in accessing other services, and to monitor complaints for patterns and make recommendations to plans.

Minn. Stat. Ann. §§ 62D.11, 62Q.105 – complaints – eff. 7/1/99, HPCs must inform complainants of their decision within 30 days of complaint receipt, and must make “reasonable efforts” to resolve medically urgent enrollee complaints within 72 hours; HPCs must have an “impartial” appeals process (which may be ADR process if HPC pays) and must advise complainants who receive adverse decisions of their right to appeal through this internal process or to the commissioner; MCOs must submit all QOC-related complaints to its review board/org; records must be maintained for five years.

Minn. Stat. Ann. §§ 62Q.106, 62Q.30 – independent review – a complainant may at any time submit a complaint to the appropriate commissioner to investigate; eff, 7/1/99, the commissioner must establish an expedited fact finding and dispute resolution process to assist enrollees with contested treatment, coverage, and service issues and take action against any HPC that is the subject of repeated orders suggesting a patter of inappropriate underutilization.

Minn R. 4685.1700 – standards for urgent complaints – if a complaint involves a dispute about an immediately and urgently needed service that the health maintenance organization claims is experimental, not medically necessary, or otherwise not generally accepted by the medical profession, the HMO must use an expedited dispute resolution process appropriate to the particular situation; the HMO must notify the commissioner of the complaint by the end of the next business day after it is registered and its decision at the time or by the end of the next business day following the decision; the complaint need not be in writing. (update?) (Penalties for failure to comply include fines of up to $25,000 per violation and suspension or revocation of license)

Minn. Stat. Ann. § 62Q.107 – standard of review – no health plan may specify a standard of review upon which a court may review a denial of a claim or any other HPC decision with respect to an enrollee; any standard less favorable to the enrollee than preponderance of the evidence specifically prohibited, e.g., arbitrary and capricious or abuse of discretion.

Disclosure
Minn. Stat. Ann. § 62J.72 – incentive disclosure - during open enrollment, upon enrollment, and annually thereafter, HPCs must provide a description of the general nature of the reimbursement methodologies used to pay providers, with an explanation of any aspect that creates an incentive to limit care; upon request, HPCs and providers must provide an enrollee with more specific information, including a written description of any compensation arrangement that is dependent on the amount of health coverage or health care services provided to the enrollee or the number of referrals to or utilization of specialists and any risk sharing incentive plan (although specific amounts paid to a provider and other “proprietary information” need not be disclosed).

Minn. Stat. Ann. § 62J.71 – gag clauses – agreements/directives are prohibited if they prohibit a health care provider from communicating with an enrollee about the enrollee’s health status, health care or treatment options, in good faith and within the provider’s scope of practice; making a recommendation about the suitability or desirability of company/insurer/plan, unless the provider has a financial conflict of interest in the enrollee’s choice; providing testimony or making any other contact with governmental personnel; disclosing accurate information about payment/coverage; and informing an enrollee about the reimbursement methodology in use; does not prohibit provisions/directives against disclosure of specific amounts paid and other proprietary information. (§ 62J.701 explicitly makes §§ 62J.695 to 62J.80 applicable to governmental programs.)

Minn. Stat. Ann. § 62Q.64 – executive compensation disclosure - HPCs must file a list that includes top executive compensation with the consumer advisory board, and the filing is public data.

Emergency Care
Minn. Stat. Ann. § 62Q.55 – emergency care – emergency services must be covered without regard to network or service area restrictions; in reviewing a coverage denial, HPCs must consider beliefs of reasonable layperson, etc.; HPCs may require notice as soon as possible, but not later than 48 hrs, after provision, but may not deny payment for otherwise covered services due to failure to give timely notice.

*Minn. R. 46 85.0700 – emergency care – HMOs must cover provision by OON providers required for reasons of medical necessity and not convenience.

Nondiscrimination
*Minn. Stat. Ann. § 72A.20(32) – unfair health risk avoidance – no insurer or HPC may design a network of providers, policies on access to providers, or marketing strategy in such a way as to discourage enrollment by individuals or groups whose health care needs are perceived as likely to be more expensive than the average (does not prohibit underwriting and rating practices that comply with state law).

Minn. Stat. Ann. §§ 62D.10, 62D.12 – nondiscrimination – HMO plans and other prepaid plans must accept all otherwise eligible individuals in the order in which they apply for enrollment in a manner which does not discriminate on the basis of age, sex, race, health, or economic status; the rates charged by HMOs shall not discriminate except in accordance with accepted actuarial principles.

Prohibition of Incentives
Minn. Stat. Ann. § 72A.20(33) – incentive prohibition – no insurer or HPC may give any financial incentive to a health care provider based solely on the number of services denied or referrals not authorized by the provider (does not prohibit capitation or other compensation methods that serve to hold health care providers financially accountable for the cost of caring for a patient population).

Consumer Participation
Minn. Stat. Ann. § 62D.06 – governing body – at least 40 percent of governing bodies of HMOs that have been authorized for at least one year must be enrollees or members (through self-insured contract) elected by enrollees/members; present or former health care administrators or providers and those with a direct substantial or managerial interest in the rendering of health services are not eligible for these posts; members may not outnumber enrollees; the body must establish a mechanism to give enrollees opportunities to express their opinions on policy and operation.

Minn. Stat. Ann. § 62J.75 – advisory body to regulators – creates consumer advisory board to state regulatory agencies.

Provider Protections
Minn. Stat. Ann. §§ 62D.12, 62J.71, 62J.80 – nonretaliation – providers are protected from retaliation for refusal to enter into a prohibited agreement or for taking any action described in the gag clauses or for discussing options not covered by the plan, for criticizing the company/insurer/plan, or for expressing personal disagreement with decision regarding treatment or coverage; does not protect providers if there is evidence that actions are illegal, constitute malpractice, or contrary to accepted medical practices.

Selected Benefit Mandates
*Minn. Stat. Ann. § 62Q.66 – DME – no HPC that covers DME may utilize medical coverage criteria that limits coverage solely to equipment used in the home; HPCs that cover DME must disclose to enrollees, and prospective enrollees upon request, general descriptions of coverage and criteria and procedures for any required prior authorizations and the address and telephone number of a representative to contact for further information.

Minn. Stat. Ann. § 62Q.525 – off-label uses of drugs – HPCs that cover drugs may not exclude drugs for cancer treatment on the ground that the drug is not FDA-approved for the use (with the usual qualifications about recognition in reference compendia or the medical literature).

Miscellaneous
Minn. Stat. Ann. § 62Q.03 – risk adjustment – establishes public programs risk adjustment work group, which is to be “representative of the persons served by publicly paid health programs and providers and health plans that meet their needs.”

Minn. Stat. Ann. § 62D.09 – marketing – no marketing materials may lead consumers to believe that all health care needs will be covered; in HMO chapter.

Minn. Stat. Ann. § 62Q.60 – mental health – definitions of medical necessity relating to mental health services may not be more restrictive than the statutory definition (“’Medically necessary care’ means health care services appropriate, in terms of type, frequency, level, setting, and duration, to the enrollee’s diagnosis or condition, and diagnostic testing and preventive services.  Medically necessary care must be consistent with generally accepted practice parameters as determined by health care providers in the same or similar general specialty as typically manages the condition, procedure, or treatment at issue and must (1) health restore or maintain the enrollee’s health; or (2) prevent deterioration of the enrollee’s condition.”)

Minn. Stat. Ann. § 62Q.095 – mandatory offer – HPCs (with some exceptions) must offer expanded provider network option.



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Mississippi

Consumer/Patient Protections

Access
Miss. Code Ann. § 83-41-409 – access – in order to certified and recertified, a managed care plan must, among other things, demonstrate that its provider network has providers of sufficient number throughout the service area to assure reasonable access to care with minimum inconvenience by plan enrollees.

Miss. Code Ann. § 83-41-217 – OB/GYNs – participating OB/GYNs must be allowed to serve as PCPs and women must be allowed direct access to IN OB/GYNs.

Complaints/UR
Miss. Code Ann. § 41-83-31 – UR – no adverse determination may be made relating to the necessity/justification of health care services without prior evaluation and concurrence by a physician, who is available to discuss the reasons with the affected provider upon request; any determination which may result in denial of third-party reimbursement or precertification of a health care service must include the evaluation, findings and concurrence of a physician trained in the relevant specialty or subspecialty, if requested by the patient’s physician.

+Miss. Code Ann. § 83-41-415 – Medicaid exception – Articles 7 (governing HMOs and other prepaid plans) and 9 (Patient Protection Act) do not apply to the Division of Medicaid in the Office of the Governor.

Financial incentives

Miscellaneous
Miss. Reg. LA&H 74-3 – marketing – advertisements must be truthful and not misleading in fact or in implication; words or phrases whose meaning is clear only by implication or familiarity with insurance terminology shall not be used; no advertisement shall omit information or use words, etc. it the effect is to mislead or deceive as to the nature or extent of any benefit or premium; no advertisement shall use words or phrases such as “all” or “full” or “comprehensive” in a manner which exaggerates any benefits, etc.



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Missouri

Consumer/Patient Protections

Access
*Mo. Ann. Stat. §§ 354.552, 354.603(1), 354.615(1) – OON providers – if a community-based HMO (criteria include provider ownership and fewer than 50,000 covered lives) does not employ or contract with a physician with the expertise necessary to provide medically necessary care covered by the health plan, it must arrange for a referral to a physician with the necessary expertise, at no additional cost to the enrollee beyond what the enrollee would otherwise pay for IN services; if an HMO has an insufficient number or type of participating providers to provide a covered benefit, it shall ensure that the enrollee obtains the covered benefit at no greater cost than if the benefit was obtained from a participating provider, or make other arrangements acceptable to the director; if an HMO determines that it does not have a health care provider with appropriate training and experience in its panel or network to meet the particular health care needs of an enrollee, it must make a referral to an appropriate provider pursuant to a treatment plan approved by the HMO in consultation with the PCP and the enrollee/designee, at no additional cost to the enrollee beyond what the enrollee would otherwise pay for IN services.

Mo. Ann. Stat. § 354.603 – geographic access – HMOs must establish and maintain adequate arrangements to ensure reasonable proximity of participating providers to enrollees’ residences/businesses.  (Mo. Code Regs. tit. 20, § 400-7.095 establishes specific distance standards for various types of specialists/services, with some variation based upon county categorization as urban, basic or rural.)

*Mo. Ann. Stat. § 354.615(3), (4) – specialists as PCPs – an HMO must have a procedure by which a new enrollee, or an enrollee upon diagnosis, with a life-threatening condition or disease or a degenerative and disabling condition or disease, either of which requires specialized medical care over a prolonged period of time, may receive a referral to a specialist/specialty care center with expertise in treating the disease or condition (IN, unless OON criteria are met) who will be responsible for and capable of providing and coordinating the enrollee’s primary and specialty care pursuant to a treatment plan approved by the HMO in consultation with the PCP if appropriate, specialist, and enrollee/designee.

*Mo. Ann. Stat. §§ 354.554, 354.615(2) – standing referrals – community-based HMOs must allow enrollees who suffer from life-threatening or degenerative, disabling conditions requiring a regimen of specialized treatment lasting for six months or more to receive a standing referral for specialty care case management by a physician or specialty care center with expertise in treating the condition, which will coordinate primary and specialty care under treatment plans approved by the HMO in consultation with the PCP and the specialist/specialty care center; an HMO must have a procedure by which an enrollee who needs ongoing care from a specialist may receive a standing referral to such specialist (IN, unless OON criteria are met) pursuant to a treatment plan approved by the HMO in consultation with the PCP, specialist, and enrollee/designee.

*Mo. Ann. Stat. § 354.612 – continuity of care – contracts between health plans and providers must include a provision for continuation of care up to 90 days by a terminating provider where continuation is medically necessary and in accordance with the dictates of medical prudence, including circumstances such disability, pregnancy, or life-threatening illness.

Mo. Ann. Stat. § 354.618 – OB/GYNs – HMOs must allow direct access to an IN provider at least once a year.

Complaints/UR
Mo. Ann. Stat. § 354.562 – grievances – the department of insurance is to promulgate rules governing grievance procedures for community-based HMOs that are not less or more stringent than the HCFA rules for Medicare managed care plans.  (Mo. Code Reg. tit. 20, § 400-7.110 establishes specific timeframes, including acknowlegment within 10 working days, 20 working days to complete an investigation “unless the investigation cannot be completed within this time” and resolution by someone not involved in the circumstances giving rise to the grievance within 5 working days after completion; the notice of resolution must explain the resolution “in terms which are clear and specific” and any right to appeal; HMOs must respond to inquiries from the department of insurance within 15 working days; the director may take disciplinary action for any violation.)

Mo. Ann. Stat. § 354.546 – (non)independent review – HMOs must allow enrollees to seek a second medical opinion or consultation relating to major surgery, or other treatment necessitating general anesthesia or other serious illness involving loss of bodily part or function or other debilitating disease, from the HMO’s choice of other PCPs and specialty physicians at no additional cost to the enrollee beyond what the enrollee would pay for initial opinion/consultation; if the HMO does not employ/contract with another physician with the expertise necessary to provide a second opinion, then it must arrange for OON referral at no greater cost than for an IN benefit.

Mo. Ann. Stat. § 376.1361 – UR – a UR program must use documented clinical review criteria that are based on sound clinical evidence and evaluated periodically to assure ongoing efficacy; a licensed clinical peer must evaluate the clinical appropriateness of adverse determinations; compensation to persons providing UR may not contain incentives to make medically inappropriate review decisions or be based on the quantity or type of adverse determinations rendered. (§§ 376.1350 – 376.1390 are not applicable to indemnity plans without a managed care component, e.g., no requirement to use or incentives to use participating providers.)

Mo. Ann. Stat. § 376.1361(10) – UR/drugs and DME – a carrier must permit enrollees/providers for enrollees to appeal for the coverage of medically necessary pharmaceutical prescriptions and DME as part of the UR process.

Mo. Ann. Stat. § 376.1363 – UR/procedure – UREs must make initial determinations within 2 b.d. of obtaining all necessary information (1 b.d. for concurrent reviews) and give notice by telephone within 24 hours of decision (with no liability until notice in case of concurrent review); requirements for notices include statement of clinical rationale, including clinical review criteria.

Mo. Ann. Stat. § 376.1381 et seq. – grievance review – a health carrier that offers managed care plans must describe its grievance procedure in member materials, to include the toll-free number and address of the department of insurance and a statement about the right to contact the department for assistance at any time; two levels of review; grievance may be submitted by representative; carrier must conduct investigation within 20 b.d. (with possibility of 30 b.d. extension, requiring notice with specific reasons for delay), with notice within 15 b.d. of completion; second level review is conducted by advisory panel that includes enrollees and carrier representatives not previously involved in the case (where grievance involves AD, a majority must be clinical peers with no prior involvement); same time frames as first level review.

Mo. Ann. Stat. § 376.1387 – independent review – if the director does not resolve any grievance regarding an adverse determination, it is resolved by referral to an IRO; the IRO renders a decision based upon a review of the written record; the resolution is binding upon the enrollee and carrier, and subject to judicial review if action is filed within 30 days; however, grievances related to a Medicaid program are resolved according to rules and procedures established for the Medicaid program.

Mo. Ann. Stat. § 376.1389 – expedited review – a request for expedited review may be submitted orally or in writing, and the carrier must notify an enrollee of its determination orally within 72 hours of receipt of request.

Disclosure
Mo. Ann. Stat. §§ 354.441, 354.559, 354.606(10) – gag clauses – no HMO or other entity shall prohibit or restrict any provider from disclosing to any enrollee any information that such provider deems appropriate regarding the nature of treatment, risks or alternatives, a decision to authorize or deny services, or the process that the plan or its contractor uses or proposes to use to authorize or deny services or benefits (standards to determine violations by community-based HMOs are those adopted by HCFA for Medicare managed care plans); an HMO shall not prohibit a participating provider from advocating in good faith on behalf of enrollees within UR or grievance processes.

Mo. Ann. Stat. § 354.442 – disclosure – HMOs (=most if not all prepaid plans) must provide enrollees and upon request prospective enrollees with, e.g., notice that disputes involving clinical decisions must be made by qualified clinical personnel, in notices of determination information about the basis of the decision and further appeal rights, if any, description of emergency services that includes prudent layperson definition and notice that these services are not subject to prior approval, notice concerning availability of OON referrals, and description of mechanisms for consumer participation; and upon request, consumer complaint data, procedures for protecting the confidentiality of medical records and other enrollee information, the process for seeking to have an excluded drug included as a benefit, procedures relating to experimental drugs, devices or treatments, and upon written request, written clinical review criteria relating to conditions or diseases which the organization may consider in the UR process.

Emergency Care
Mo. Ann. Stat. §§ 354.400, 354.600, 376.1350 (UR), 376.1367 (UR) – emergency care – adopt prudent layperson standard; carrier must cover services necessary to screen and stabilize and may not require prior authorization of such services; when an enrollee receives an emergency service that requires immediate post evaluation or post stabilization services, a carrier must provide an authorization decision within 60 minutes of receiving a request (if decision is not made within 30 minutes, services deemed approved).

Mo. Code Regs. tit. 20, § 400-7.130 – emergency care – an HMO shall not base its denial of payment for emergency medical services solely on the enrollee’s failure to receive authorization prior to receiving the service. (See § 354.410.1(2) and 354.470.1(3))

Formularies
*Mo. Ann. Stat. § 354.535 – maintenance drugs – HMOs may not insist or mandate any provider to change an enrollee’s maintenance drug (=a drug prescribed by a licensed practitioner to treat a medical condition for a period greater than 30 days) unless the provider and enrollee agree to the change; notwithstanding other provisions of law to the contrary (see § 354.125), HMOs that change an enrollee’s maintenance drug without provider consent are liable for resulting damages.

Prohibition of Incentives
Mo. Stat. Ann. § 354.606(9), 354.443 – incentive prohibition – an HMO shall not offer an inducement under the managed care plan to a provider to provide less than medically necessary services to an enrollee; the director shall review required filings with the department to determine if an HMO’s financial arrangements offer an inducement to a provider to provide less than medically necessary services.  (For “community-based” HMOs, the director is to adopt rules that mirror the Medicare rules.  § 354.560)

Consumer Participation
Mo. Code Regs. tit. 20, § 400-7.120 – opportunity for suggestions – every HMO must establish a mechanism that affords enrollees an opportunity to participate in matters of the HMO’s policy and operation, at a minimum, ensuring an opportunity to offer appropriate suggestions to the HMO’s policymaking body and due consideration by that body.

Provider Protections
*Mo. Ann. Stat. § 354.606(6) – selection criteria – HMO provider selection criteria must not be established in a manner that will exclude a provider because the provider treats or specializes in treating a population presenting a risk of higher than average claims, losses or health services utilization.

Mo. Ann. Stat. §354.606(10), (15) – nonretaliation – an HMO shall not prohibit a participating provider from advocating in good faith on behalf of enrollees within UR or grievance processes; an HMO shall not penalize a provider because the provider in good faith reports to governmental authorities any act or practice by the health carrier that may jeopardize patient health or welfare.

Selected Benefit Mandates
Mo. Ann. Stat. § 376.1361(11) – off-label uses of drugs – a health benefit plan (broad definition) that provides coverage for drugs must cover any drug prescribed to treat an indication if drug is recognized for treatment of that indication and deemed medically appropriate; does not require payment for non-formulary drugs, except that state may exclude or restrict coverage of covered outpatient drug from Medicaid programs as specified under SSA.

Mo. Ann. Stat. § 376.385 – diabetes – all types of insurers (HMOs, indemnity, etc.) must offer coverage for all physician-prescribed medically appropriate and necessary equipment, supplies and self-management training used in the management and treatment of gestational, type I or type II diabetes at no greater deductible or copayment than any other covered service, and no insurer may reduce or eliminate coverage due to these requirements.

Mo. Ann. Stat. § 376.1200 – BMTs – all insurers must offer, in writing, coverage for the treatment of breast cancer by dose-intensive chemotherapy/ABMT or SCT when performed pursuant to nationally accepted peer review protocols utilized by centers experienced in such transplants; no greater deductible or copayment, except that may impose separate lifetime benefit maximum of $100,000.

Mo. Ann. Stat. § 376.1209 – reconstructive surgery – if insurer covers mastectomy, must cover reconstructive surgery and prostheses, with same deductible and coinsurance conditions as apply to other benefits

Mo. Ann. Stat. § 376.1219 – PKU formula – all insurers must cover formula recommended by physician for the treatment of PKU or any inherited disease of amino and organic acids at no greater deductible or copy, etc.

HMO Protections
Mo. Ann. Stat. § 354.125 – immunity from vicarious liability – a “health services corporations” shall not be liable for injuries resulting from neglect, misfeasance, malfeasance or malpractice on the part of any person, organization, agency or corporation rendering health services to the health service corporation’s members and beneficiaries. (repealed by H335?)

Miscellaneous
Mo. Code Reg. tit. 20, § 400-7.080 – risk of nonpayment – providers have no recourse against enrollees for amounts an HMO is obligated to pay; “in order to ensure compliance with this provision, no contract between an HMO and provider will be valid or enforceable by the provider unless the contract specifically establishes an independent contractor relationship between the HMO and the provider and further provides that under no circumstances…shall the provider bill, charge or in any way seek to hold an enrollee legally liable for the payment of any fees which are the legal obligation of the HMO…” (many states have similar provisions in their HMO acts)

Mo. Code Reg. tit. 20, § 400-7.010 – form review – department of insurance must approve specified forms, including contracts and evidence of coverage, prior to use by HMO.

Mo. Code Reg. tit. 20, § 400-5.700 – advertising – extensive provisions concerning advertising by accident and sickness insurers.



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Montana

Consumer/Patient Protections

Access
*Mont. Code Ann. § 33-36-201 – access – a health carrier offering a managed care plan must maintain a network that is sufficient in numbers and types of providers to ensure that all services to covered persons are accessible without unreasonable delay; the carrier must ensure reasonable proximity; after 10/1/1999, carriers must file access plans with the department, to include the health carrier’s efforts to address the needs of covered persons with limited English proficiency and illiteracy, with diverse cultural and ethnic backgrounds, and with physical and mental disabilities.

*Mont. Code Ann. § 3-36-201(2) – OON providers – a health carrier offering a managed care plan must maintain a network that is sufficient in numbers and types of providers to ensure that all services to covered persons are accessible without unreasonable delay; whenever a health carrier has an insufficient number or type of participating providers to provide a covered benefit, the health carrier shall ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the covered benefit were obtained from participating providers or shall make other arrangement acceptable to the department.

*Mont. Code Ann. § 33-31-301(3)(i) – mental illness, alcoholism and drug addiction – after the PCP refers an enrollee for treatment of and ancillary services for any of these, the HMO may not limit the enrollee to a HMO provider for such treatment/services.

Mont. Code Ann. §§ 33-22-1903, 33-22-1904 – OB/GYNs – OB/GYNs must be allowed to serve as PCPs at their option; health benefit plans must permit self-referral to any participating OB/GYN for an OB/GYN exam or service, and may not require pre-authorization although may require prior notice.

Complaints/UR
Mont. Code Ann. § 33-31-303 – complaint system – system must be approved by commissioner; acknowledgment within 10 days of receipt (not many specifics).

Mont. Code Ann. § 33-32-201 – UR – adverse determinations on appeal or reconsideration relating to medical necessity or appropriateness must be supported by prior written findings, evaluation, and concurrence by a health care professional trained in the relevant area, with copies provided to the patient on request; must also be preceded by reasonable attempt to consult with the patient’s attending health care provider.

Mont. Code Ann. § 33-32-201(5)(b) – UR/independent review – the patient may at her/his own expense request an independent review of the patient’s/provider’s records by a provider licensed in the field of the provider that rendered the service [=retrospective] and may require its consideration by the insurer in reaching its decision; if the initial adverse determination is reversed, the insurer bears the expense [a real incentive not to reverse!].

Mont. Code Ann. § 33-32-203 – UR/appeals – affected patients/providers have at least 30 days to appeal or seek reconsideration; a final decision on appeal or reconsideration must be made within 60 days of receipt of all relevant medical records by reviewer.

Disclosure
Mont. Code Ann. §§ 33-1-802, 33-36-204(3) – gag clauses – a health carrier (inclusive definition) or MCO may not by contract, direction, requirement, or by financial inducement or penalty, prohibit a provider from making or interfere with a provider making a medical communication to an enrollee; does not prevent an entity from prohibiting disclosure of a trade secret (defined at § 30-14-402); a health carrier may not prohibit a participating provider from advocating on behalf of a covered person within the UR or grievance processes.

Emergency Care
Mont. Code Ann. §§ 33-36-103, 33-36-205 – emergency care – reasonable expectation standard adopted in definition; a health carrier offering a managed care plan must provide or pay for emergency services screening and emergency services and may not require prior authorization therefor; a health carrier shall pay for services from nonnetwork providers and may not require prior authorization if use of a participating provider would result in a delay that would worsen the medical condition of the covered person or if the law requires the use of a specific provider; may not subsequently retract an authorization unless based on material misrepresentation, etc.; for postevaluation or poststabilization services, must provide access to an authorized representative 24 hour a day, 7 days a week (typical).

Nondiscrimination
Mont. Code Ann. § 33-22-526 – discrimination – a group health plan or health insurance issuer offering group health insurance coverage may not establish rules for eligibility of any individual to enroll based on health status, medical condition, claims experience, receipt of health care, medical history, genetic information, disability, etc.; does not require particular benefits or prevent limitations/restrictions on the amount, level, extent or nature of benefits for similarly situated individuals; same entities may not require an individual to pay a premium or contribution that is greater than the premium or contribution for a similarly situated individual enrolled in the plan; does not restrict charges to employers for coverage or prevent discounts, etc. for adherence to health promotion and disease prevention programs. (typical of statutes in many states)

Prohibition of Incentives
Mont. Code Ann. § 33-36-204 – incentive prohibition – a health carrier may not offer an inducement under a managed care plan to a participating provider to provide less than medically necessary services to a covered person.

Consumer Participation
Mont. Code Ann. § 33-31-222 – governing body – the HMO governing body must establish a mechanism to give enrollees an opportunity to participate in matters of policy and operation through the establishment of advisory panels, by the use of advisory referenda on major policy decisions, or through the use of other mechanisms.

Provider Protections
*Mont. Code Ann. § 33-36-203 – discrimination – a health carrier may not adopt selection criteria that exclude a provider because the provider treats or specializes in treating populations presenting a risk of higher than average claims, losses, or use of health care services.

Mont. Code Ann. §§ 33-1-802, 33-36-204(8) – nonretaliation – a health carrier or MCO may not take any action against a provider in retaliation for a medical communication to an enrollee/representative (§ 33-1-804 authorizes the commissioner to impose a civil penalty for violations and to bring a civil action to collect the penalty); a health carrier may not penalize a participating provider because he/she in good faith reports to state or federal authorities an act or practice by the carrier that may adversely affect patient health or welfare.

Selected Benefit Mandates
Mont. Code Ann. §§ 33-22-134, 33-22-135 – postmastectomy care/reconstructive surgery – insurers must cover.

Mont. Code Ann. §§ 33-22-703, 33-22-703 – mental illness, alcoholism and drug addiction – sets minimum standards applicable to group plans, including terms not less favorable than for physical illness on durational and dollar limits, deductibles, and coinsurance for basic inpatient benefits, except that inpatient treatment for mental illness, alcoholism, and drug addiction may be subject to a maximum yearly benefit of 21 days (inpatient treatment may be traded on a 2-for-1 basis for partial hospitalization), and a 24-month maximum of $4000 and a lifetime maximum of $8000; parity mandate for aggregate dollar limits is subject to various carveouts and this mandate terminates 9/30/2001.



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Nebraska

Consumer/Patient Protections

Access
*1998 Neb. Laws L.B. 1162, sec. 43 (Neb. Rev. Stat. §?) (Managed Care Plan Network Adequacy Act) – access – applies to all health carriers that offer managed care plans; network must be sufficient in numbers and types of providers to assure that all health care services to covered persons will be accessible without unreasonable delay; health carriers must maintain an access plan that includes the carrier’s efforts to address the needs of covered persons with limited English proficiency and illiteracy, with diverse cultural and ethnic backgrounds, and with physical and mental disabilities, and the carrier’s system for ensuring the coordination and continuity of care for covered persons referred to specialty physicians, using ancillary services including social services and other community resources, and for ensuring appropriate discharge planning, and the carrier’s proposed plan for providing continuity of care in the event of contract termination.

*Neb. Admin. R. & Regs. tit. 182, § 1-002 – access – HMOs must demonstrate, among other things, that the location of facilities, and proximity to and availability of transportation will enhance accessibility of service to the reasonably anticipated enrollees, including aged and handicapped persons, that facilities will not present architectural barriers to aged and handicapped persons; and that continuity of service to enrollees will be enhanced by provision of a means for ensuring that enrollees receive the proper level and type of care and that the provision of services is coordinated, but within and outside the HMO.

1998 Neb. Laws sec. 43(1)(a) (Managed Care Plan Network Adequacy Act) – OON referrals – in any case in which the health carrier has an insufficient number or type of participating provider to provide a covered benefit, the health carrier must ensure that the covered person obtains the covered benefit and the health carrier must reimburse the nonparticipating provider at the carrier’s usual and customary rate or at an agreed upon rate.

Neb. Rev. Stat. § 44-786 – OB/GYNs – health carriers must allow participating OB/GYNs to serve as PCPs.

Complaints/UR
1998 Neb. Laws sec. 68, 73 (Health Carrier Grievance Procedure Act) – grievances – applies to all health carriers that offer managed care plans; if a covered person’s request for services is denied, the health carrier must provide an explanation of the reasons and how to submit a grievance and the telephone number to call for information and assistance; a carrier shall ensure that a majority of persons reviewing a grievance involving an adverse determination have appropriate expertise; 15 working days (with the possibility of a 15 working day extension for circumstances beyond the carrier’s control) allowed for decision, and the reviewer may not be the same person who made the initial determination; at the first level no right to attend, but may submit written material; content of written decision specified; second-level grievance review must be conducted by a panel, majority must be not previously uninvolved, majority must be health care professionals with appropriate expertise, and its decision is binding on the carrier; covered person has right to attend, ask questions, be represented, etc.; written decision must be issued within 5 working days after meeting.

1998 Neb. Laws sec. 68, 75 (Health Carrier Grievance Procedure Act) – adverse determinations – comprehensive definition of adverse determination, i.e., a determination by a health carrier or its designee UR agent that an admission, availability of care, continued stay, or other health care service has been reviewed and, based upon the information provided, does not meet the health carrier’s requirements for medical necessity, appropriateness, health care setting, level of care, or effectiveness, and the requested health care service is therefor denied, reduced, or terminated; a health carrier shall establish written procedures for a standard review of an adverse determination; when reasonably necessary or requested by the covered person’s provider, standard reviews shall be evaluated by an appropriate clinical peer(s) in the same or similar specialty as would typically managed the case, not involved in the initial adverse determination; notice of decision within 15 working days; carriers must have an expedited review procedure for situations in which the standard timeframe would seriously jeopardize life or health or ability to regain maximum function; requests may be submitted orally or in writing; same rules about qualifications of reviewers; timeframe for decision is “as expeditiously as the covered person’s medical condition requires” but in no event more than 72 hours after commencement; for concurrent review, service must be continued without liability to covered persons under notice of determination; must provide access to clinical peer within one business day.

Neb. Rev. Stat. §§ 44-5402, 44-5412 – UR/appeals – comprehensive definition of adverse determination; in an appeal, the covered person/physician must be given timely access to the clinical basis a decision not to approve/certify for clinical reasons; during a final appeal, a physician must be reasonably available to review the case (unless services were provided or authorized by a nonphysician provider).

Neb. Rev. Stat. § 44-5414(11) – UR/standards – a UR program must use documented clinical review criteria that are based on sound clinical evidence and evaluated periodically to assure ongoing efficacy.

Neb. Rev. Stat. § 44-5412 – UR/financial incentives – UR agents prohibited from compensating employees/agents based directly on the number of adverse determinations.

Neb. Rev. Stat. §§ 44-5402, 44-5412 – UR/emergency care – adopts prudent layperson definition of emergency medical condition; UR agent must allow a minimum of 24 hours for a covered person/representative to provide notice of emergency treatment and request certification or continuing treatment.

Disclosure
1998 Neb. Laws sec. 44(i) (Managed Care Plan Network Adequacy Act) – gag clauses – a health carrier shall not prohibit a participating provider from discussing treatment options with covered persons irrespective of the carrier’s position on the treatment options or from advocating on behalf of covered persons within the utilization review or grievance processes established by the health carrier or a contractor.

Emergency Care
Neb. Rev. Stat. §§ 44-6802, 44-6823 (Managed Care Emergency Services Act) – emergency care – applies to all health carriers that offer managed care plans; adopts prudent layperson definition of emergency medical condition; imposes responsibility for charges for medically necessary emergency services including OON services; if the treating physician/ER staffer determines that additional medically necessary services are promptly needed and has requested approval, approval is deemed given if health carrier has not provided access to individual authorized to approve request or such individual has not denied authorization within 30 minutes.

Prohibition of Incentives
1998 Neb. Laws sec. 44(h) (Managed Care Plan Network Adequacy Act) – incentive prohibition – a health carrier shall not offer an inducement under the managed care plan to a provider to provide less than medically necessary health care services to a covered person.

Provider Protections
1998 Neb. Laws sec. 44(o) (Managed Care Plan Network Adequacy Act) – nonretaliation – a health carrier shall not penalize a provider because the provider, in good faith, reports to state or federal authorities any act or practice by the carrier that jeopardizes patient health or welfare.

Selected Benefit Mandates
1998 Neb. Laws sec. 81 – off-label uses of drugs – applies to plans that cover prescription drugs; limited to treatment of cancer and HIV/AIDS.

Miscellaneous
1998 Neb. Laws sec. 60 (Quality Assessment and Improvement Act) – confidentiality – data or information pertaining to the diagnosis, treatment, or health of a covered person obtained from the person or a provider by a health carrier is confidential and shall not be disclosed to any person except to the extent that it may be necessary to carry out the purposes of the Quality Assessment and Improvement Act and as allowed by state law; or upon the express consent of the covered person; or pursuant to statute or court order for the production of evidence or the discovery thereof; or in the event of a claim or litigation between the covered person and the health carrier in which the data or information is pertinent.

1998 Neb. Laws sec. 44(e) (Managed Care Plan Network Adequacy Act) – no recourse – in no event shall a participating provider collect or attempt to collect from a covered person any money owed to the provider by the health carrier, etc.

1998 Neb. Laws sec. 45(2)(b) (Managed Care Plan Network Adequacy Act) – nondelegation – a health carrier’s statutory responsibility to monitor the offering of covered benefits to covered persons shall not be delegated or assigned to an intermediary.

Neb. Rev. Stat. §§ 44-5414(14) (UR Act), sec. 23 (Managed Care Emergency Services Act), sec. 48 (Managed Care Plan Network Adequacy Act), sec. 63 (Quality Assessment and Improvement Act), sec. 81 (Health Carrier Grievance Procedure Act) – enforcement – language suggests director may have obligation to issue cease and desist order if violation is found after hearing; discretion to impose fines up to $1000 per violation ($15,000 if flagrant), plus suspend/revoke license.



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Nevada

Consumer/Patient Protections

Complaints/UR
Nev. Rev. Stat. §§ 695G.150, 695G.160 – adverse determinations – decisions not to authorize a service recommended by a provider and covered by the health plan can only be made by Nevada-licensed physicians with the necessary expertise who have reviewed the available medical documentation; health plans must have written criteria for coverage decisions, available to affected insureds upon request.

Nev. Rev. Stat. § 695G.200 – complaints – system for resolving complaints must be approved by the commissioner ; upon request, MCOs must assign an employee to assist persons in filing complaints or appealing a decision of the review board.

Nev. Rev. Stat. §§ 695G.210, 695G.230 – review board – system for resolving complaints must include initial investigation and review by a review board and an appeal procedure; the majority of the members of the review board must be insureds of the MCO; the board has 30 days to notify the insured of a determination (expedited review in cases of imminent and serious threat to health must result in notice within 72 hours); notices must contain an explanation of any further rights; notice of coverage denials must include reasons and criteria used.

Nev. Rev. Stat. §§ 679B.550, 679B.560 – ombudsman – the insurance division is to establish a toll-free number for receiving inquiries and complaints from consumers, providing answers and referrals and counseling and assistance; insurers are to provide the number and hours of operation to insureds.

Disclosure
Nev. Rev. Stat. § 695G.240 – gag clauses – MCOs may not restrict or interfere with any communication between a provider and patient regarding any information that the provider determines is relevant to the patient’s health care.

Emergency Care
Nev. Rev. Stat. §§ 695G.170 – emergency services – prudent person standard adopted; MCOs must cover and may not require prior authorization.

Prohibition on Incentives
Nev. Rev. Stat. § 695G.260 – incentive prohibition – MCOs are prohibited from offering or paying any type of material inducement, bonus or other financial incentive to a provider of health care to deny, reduce, withhold, limit or delay specific medically necessary health care services to an insured; use of capitation or other financial incentives is not prohibited if the arrangement is designed to provide an incentive to the provider to use health care services effectively and consistently in the best interest of the health care of the insured

Selected Benefit Mandates
Nev. Rev. Stat. § 695C.1723 – inherited metabolic diseases – HMOs must cover enteral formulas for home use and at least $2500 for special food products, if prescribed by a physician as medically necessary for certain metabolic diseases.

Nev. Rev. Stat. § 695C.1727 – diabetes – all insurance covering hospital, medical or surgical expenses must cover management and treatment of diabetes, including coverage for self-management.

Nev. Rev. Stat. § 695C.174 – alcohol/drug abuse – HMOs must cover a minimum of $1500 for treatment of withdrawal, $9000 for inpatient treatment and $2500 for counseling, per calendar year.

Nev. Rev. Stat. § 695C.1755 – TMJ – no exclusions for TMJ permitted, but may exclude dental procedures and HMOs may limit liability to no more than 50% of usual and customary charges, etc.

Nev. Rev. Stat. § 695C.176 – hospice – each health care plan must provide benefits for hospice care.

Miscellaneous
Nev. Rev. Stat. §§ 695G.130, 695G.220 – reports – MCOs are required to file an annual report relating to quality, e.g., criteria used, financial reports, description of complaints evenuating in legal proceedings; and a report on complaints including statistics on total number, current status, average time to resolution.

Nev. Rev. Stat. § 695G.100 – public record – any document required to be filed with the commissioner, other than medical records and other information relating to a specific insured, must be treated as a public record.



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New Hampshire

Consumer/Patient Protections
Note: FFS forms of health care expense coverage, and health insurers which do not significantly limit covered persons’ choices of providers, are not subject to regulation under managed care chapter.  N.H. Rev. Stat. Ann. § 420-J:1.  UR is covered under a separate chapter, which directs the commissioner to establish rules for timeframes, confidentiality, reviewer qualifications, etc.  N.H. Rev. Stat. Ann. § 420-E:7.  See N.H. Code Admin. R. Ann. Ins. 2001.11 (decisions on most matters required within 2 business days after receipt of necessary information; URE must notify beneficiary/provider within 24 hours after determination that information is lacking); N.H. Code Admin. R. Ann. Ins. 2001.14 (URE must have written procedures for assuring that patient-specific information is dept confidential, used only for UR, QM, discharge planning, and CM, shared only with claims administrator and others with authority to receive it, etc.).

Access
*N.H. Rev. Stat. Ann. § 420-J:7 – network adequacy – the commissioner is to adopt rules addressing, among other things, wait times for appointments and choice of and access to providers for specialty care, specifically addressing the needs of the chronically ill, mentally ill, developmentally disabled or those with a life threatening illness.

Disclosure
N.H. Rev. Stat. Ann. § 420-J:8 – gag clauses – no contract between a health carrier and a health care provider shall limit what information the provider may disclose to patients or prospective patients regarding the provisions, terms, or requirements of the health carrier’s products as they relate to the needs of the provider’s patients except for trade secrets of significant competitive value.

Complaints/UR
N.H. Rev. Stat. Ann. § 420-J:5 – grievances – written decision within 20 business days after receipt of grievance and all information necessary for review, with possibility of 10 business day extension for circumstances beyond the carrier’s control; reviewers must not have made initial determination; contents for notice specified; same definition of adverse determination as for Nebraska; standard review of adverse determination must be made by clinical peer(s) not involved in initial determination; second level grievance review are to be conducted by panel, with majority not previously involved and at least one clinical peer involved in review, and written decision within 5 business days of completion of review meeting; provisions for expedited review procedure similar to Nebraska.

Selected Benefit Mandates
N.H. Rev. Stat. Ann. §§415:18-c, 420-B:8-f – ABMT – group or blanket accident or health insurance and HMOs must cover expenses arising from the treatment of breast cancer by ABMT according to protocols reviewed and approved by NCI.

N.H. Rev. Stat. Ann. §§ 415:18-d, 420-B:8-f – scalp hair prostheses - group or blanket accident or health insurance and HMOs that cover prostheses must also cover scalp hair prostheses recommended by a physician as medically necessary.

N.H. Rev. Stat. Ann. §§ 415:18-e, 420-B:8 -ff – nonprescription enteral formulas - group or blanket accident or health insurance and HMOs must cover formulas for certain disorders of the GI tract if a physician has issued a written order stating that the formula is needed to sustain life, medically necessary, and the least restrictive and most cost effective means for meeting the needs of the patient.

N.H. Rev. Stat. Ann. §§ 415:18-f, 420-B:8-k – diabetes - group or blanket accident or health insurance and HMOs must cover medically appropriate and necessary outpatient self-management training and educational services, including insulin, etc.

N.H. Rev. Stat. Ann. § 415:18-a – mental or nervous conditions – group policies must cover expenses arising from treatment of illnesses or disorders which, in professional judgment, are subject to significant improvement through short-term therapy, and benefits for expenses arising from diagnosis and evaluation of all other mental illnesses and disorders; terms of major medical policies respecting inpatient treatment must be at least as favorable as for other illnesses, etc.; for major medical policies, deductibles and copayments must be at least as favorable, except that may impose 12-month maximum of $3000 and lifetime maximum of $10,000 per covered individual.

Miscellaneous
N.H. Rev. Stat. Ann. § 420-J:10 – confidentiality – same as Nebraska provision.

N.H. Rev. Stat. Ann. § 420-J:14 – enforcement – commissioner may impose administrative fines not to exceed $2500 per violation or suspend or revoke a certificate of authority or license for failure to comply.



New Jersey

Consumer/Patient Protections

Access
*N.J. Admin. Code tit. 8, §§ 38-6.2(a), 38-6.3 – access – HMOs must have a sufficient number of specialists available to members to provide medically necessary specialty care (within lesser of 45 miles or 1 hr. driving time of 90% of members within county/approved sub-county service area); HMOs must assure access (lesser of 45 miles or 1 hr. driving time of 90% of members within county/approved sub-county service area) to specialized services) including inpatient psychiatric services, residential substance abuse treatment center, specialty outpatient centers for HIV/AIDS, sickle cell disease, hemophilia, and cranio facial and congenital anomalies, and comprehensive rehab services; licensed long term care facility, MRI, emergency mental health service, outpatient therapy providers for mental health and substance abuse conditions, and licensed renal dialysis provider and several other services must be within lesser of 20 miles or 30 min. driving time of 90% of members within county/approved sub-county area (where 20% of projected/actual membership rely on public transportation, driving time must be based on average transit time using public transportation).

*N.J. Admin. Code tit. 8, § 38-6.2(b) – specialists as PCPs – HMOs may allow specialists to be designated as PCPs for specified individual members or patient groups who, due to health status or chronic illness, would benefit from medical care management by a specialist.

N.J. Admin. Code tit. 8, § 38-9.1 – referral rights – statement of members’ rights must include the right to obtain assistance and referral to providers with experience in treatment of patients with chronic disabilities (and the right to receive from the provider, in terms the member understands, an explanation of his/her complete medical condition, recommended treatment, its risk(s), expected results and reasonable medical alternatives, whether or not covered).

N.J. Admin. Code tit. 8, § 38-3.5 – continuity of care – HMOs must have a policy that assures continued coverage of services at the contract price by a terminated provider for up to 120 calendar days in cases where it is medically necessary for the member to continue treatment with the terminated provider.

Complaints/UR
N.J. Admin. Code tit. 8, § 38-3.6 – complaints and appeals – HMOs must establish a system that includes these features: a member services representative to assist members with complaints upon request, specified response time not to exceed 30 days from receipt, procedures for follow-up, and a mechanism for notifying members that they may contact the department (Div. of Medical Assistance for Medicaid enrollees) if dissatisfied with the internal system.

N.J. Stat. Ann. § 26:2S-6; N.J. Admin. Code tit. 8, §§ 38-8.2 to 38-8.6 – UR/general – 24x7 phone availability of RN/MD to providers, to members if PCP or backup is not accessible by phone 24x7; all determinations to deny or limit an admission, service, procedure or extension of stay must be rendered by a physician, and must be made on a timely basis as required by the exigencies of the situation; no retroactive denial of previously approved covered services absent material misrepresentation or fraud; the appeal process is to consist of an informal internal review (must include opportunity to discuss determination with medical director or physician designee rendering determination; timeframes are max. 72 hours in urgent or emergency cases, 5 business days for others), a formal internal review (panel of health care professionals not previously involved, plus appropriately trained consultants; timeframes are max. 72 hours in urgent or emergency cases, 20 b.d. for others with 20 b.d. extensions possible with proper documentation of reasonable cause for delay beyond HMO control), and a formal external review by an independent URO.

N.J. Stat. Ann. § 26:2S-6 – medical necessity – carriers’ treatment policies, protocols, quality assurance programs and UR decisions must be based on generally accepted standards of health care practice.

N.J. Stat. Ann. § 26:2S-11; N.J. Admin. Code tit. 8, §§ 38-8.6 to 38-8.7 – independent review – review is available for decisions to deny, reduce or terminate a benefit upon exhaustion of internal appeals (but if an HMO fails to comply with any deadlines for internal appeals, the member and/or provider is relieved of this obligation and may proceed directly to the external process); within 30 days of receipt of the written determination from a stage 2 internal appeal, the member/provider must file a written request with the department and pay a $25 filing fee ($2 upon determination of financial hardship, e.g., Medicaid, SSI), but carrier bears cost of review; the IURO full review is initially conducted by a RN or MD, with referral to a specialist consultant as necessary; timeframe for decision is standard “as soon as possible in accordance with the medical exigencies of the case” but in no event more than 30 days (unless delay is due to circumstances beyond IURO control); HMO must accept or reject recommendation within 10 b.d.

N.J. Stat. Ann. § 26:2S-12 – independent review/standards – reviewer is to determine the appropriate, medically necessary services the person should receive, based on applicable, generally accepted practice guidelines and any applicable clinical protocols or practice guidelines developed by the carrier (but cannot extend scope of coverage); if commissioner detects pattern of noncompliance with recommendations, must review UR program.

Disclosure
N.J. Stat. Ann. § 26:2S-5; N.J. Admin. Code tit. 8, § 38-13.4 – incentive disclosure – carriers that offer managed care plans must disclose to subscribers at enrollment and annually thereafter (and to potential subscribers upon request), among other things, general information about financial incentives (plus availability of satisfaction and quality information through the department of insurance); a generic disclosure statement must be included in enrollment applications and member handbooks; upon request, HMOs must disclose the method by which a specific provider is compensated, but need not state dollar amount or other details.

N.J. Stat. Ann. § 26:2S-4 – formularies – carriers must disclose to subscribers at enrollment and upon request thereafter, among other things, restrictions or limitation on prescription drug benefits.

N.J. Stat. Ann. § 26:2S-9 – gag clauses/nonretaliation – contracts between a provider and a carrier that offers a managed care plan must state that the provider shall not be penalized or terminated for acting as a patient advocate in seeking appropriate, medically necessary health care services and must protect the ability of a provider to communicate openly with a patient about all appropriate diagnostic testing and treatment options.

Emergency Care
N.J. Admin. Code tit. 8, § 38-5.3 – emergency care – HMOs must cover trauma services, at least to the point where the attending physician judges the member medically stable, no longer critical, and safe to transfer; OON care must be covered where the member cannot reasonably access in-network services.

Nondiscrimination
*N.J. Admin. Code tit. 8, § 38-3.2 – nondiscrimination – HMOs may not refuse to renew coverage or alter the terms of an existing contract solely on the basis of, among other things, the health of the member, the frequency of the member’s use of health care services, the filing of a complaint or appeal by the member, or other reasons prohibited by the Trade Practices Act, N.J.S.A. 17B-30-1 et seq., or the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1.1 et seq.

*N.J. Admin. Code tit. 8, § 38-15.2 – nondiscrimination/providers – all provider contracts must specify that the providers shall not discriminate in their treatment of HMO patients.

Prohibition of Incentives
N.J. Stat. Ann. § 26:2S-9 – incentives – carriers that offer managed care plans are prohibited from providing financial incentives to providers for withholding medically necessary services (but does not limit use of capitated payment arrangements).

N.J. Admin. Code tit. 8, §§ 38-15.1, 38-15.2 – risk sharing – no person shall assume financial risk for the cost or provision of health services to others unless the person is an entity licensed under the state insurance laws, a provider actually performing the health services, or an employer with respect to its own employees and their dependents; capitation may not be used as the sole reimbursement method to providers who primarily provide supplies (e.g., prescription drugs, DME) rather than services.

Provider Protections
N.J. Admin. Code tit. 8, § 38-15.2 – nonretaliation – all provider contracts must specify that no provider may be terminated or penalized solely because of filing a complaint or appeal permitted by the rules; no contract may impose obligations upon a provider which conflict with statutes or rules governing licensure of the provider.

Selected Benefit Mandates
*N.J. Admin. Code tit. 8, § 38-5.2 – basic services – HMOs are required to provide/arrange for a set of basic comprehensive health services as medically necessary; list includes rehab services, equipment and supplies for the treatment of diabetes (also see § 8:38-5.4), inpatient substance abuse care (min. 30 days/contract year), skilled nursing care (min. 30 days/contract year), home health services (min. 60 visits/contract year), and hospice services.

N.J. Admin. Code tit. 8, § 38-5.6 – Wilm’s tumor – HMOs must cover treatment, including ABMT when standard chemotherapy is unsuccessful, notwithstanding that it may be deemed experimental or investigational.

N.J. Stat. Ann. § 26:2J-4.5, N.J. Admin. Code tit. 8, § 38-5.7 – off-label uses of drugs – HMOs that provide pharmacy services must cover.

Miscellaneous
N.J. Admin. Code tit. 8, § 38-15.2 – no recourse – all provider contracts must contain a provision whereby the provider shall hold the member harmless for the cost of any service or supply covered by the HMO (does not reach required copayments, deductibles or coinsurance but does prohibit balance billing for services/supplies obtained through the HMO network).

N.J. Admin. Code tit. 8, § 38-15.2 – confidentiality – all provider contracts must specify that patient information shall be kept confidential, but that the HMO and provider have mutual right to medical records/patient information.



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New Mexico

Consumer/Patient Protections

Access
*N.M. Stat. Ann. § 59A-57-4 – specialists as PCPs – managed health care plans must ensure that health care providers that are specialists may act as primary care providers for patients with chronic medical conditions.

*N.M. Stat. Ann. § 59A-57-4, N.M. Admin. Code tit. 13, § 10.13.11 – OON referrals/continuity of care – MHCPs must ensure that reasonable access is provided to OON providers if medically necessary covered services are not reasonably available through participating health care providers or if necessary to provide continuity of care during brief transition periods; the MHCP must fully reimburse the OON provider at the usual and customary rate or an agreed upon rate; before a MHCP may deny such a referral the request must be reviewed by a specialist similar to the type of specialist to whom a referral is requested.

*N.M. Admin. Code tit. 13, § 10.13.28 – continuity of care – the transitional period for terminating providers/new enrollees shall continue for a time that is sufficient to permit coordinated transition planning consistent with the patient’s condition and needs relating to continuity of care, and, in any event, not less than 30 days.

*N.M. Admin. Code tit. 13, § 10.13.11 – standing referrals – if, in the best medical judgment of the enrollee’s PCP, the enrollee’s health condition requires ongoing specialty care, such as for chronic illnesses requiring medical supervision beyond the PCP’s capability or training, the PCP may, after consultation with the specialist and MHCP, refer the enrollee for ongoing care as the severity of the condition warrants; the ultimate determination remains with the PCP; in such cases, neither PCP nor enrollee will be required to obtain prior authorization from the MHCP for subsequent specialist visits; the MHCP may review such referrals on an annual basis; the MHCP may require referral to an IN specialist unless there are no IN specialists of the type required.

N.M. Admin. Code tit. 13, § 10.13.11 – access – specific standards relating to geographical proximity of specialists/specialty services and appointment wait times.

N.M. Admin. Code tit. 13, § 10.13.9 – OB/GYNs – MHCPs must allow qualified women’s health care providers including OB/GYNs to serve as PCPs and allow enrollee direct access to IN providers for certain services.

Disclosure
N.M. Stat. Ann. § 59A-57-6 – gag clauses – no MHCP may adopt a gag rule or practice that prohibits a provider from discussing a treatment option with an enrollee, even if not plan-approved (see also N.M. Admin. Code tit. 13, § 10.13.25, also prohibiting prohibitions of disparaging comments).

N.M. Admin. Code tit. 13, § 10.13.8 – incentive disclosure – enrollees have the right to know upon request of any financial arrangements or provisions between the insurer and its providers which may restrict referral or treatment options or limit the services offered.

N.M. Admin. Code tit. 13, § 10.13.14 – incentive disclosure – each MHCP evidence of coverage/disclosure form must include a statement regarding whether or not participating providers must comply with any specified numbers, targeted averages, or maximum durations of patient visits (if yes, the specific requirements must be stated).

Complaints/UR
N.M. Admin. Code tit. 13, § 10.13.7 – definitions/medical necessity – medical necessity or medically necessary means appropriate or necessary services as determined by a participating provider affiliated with the managed health care plan, in consultation with the MHCP, which are rendered to an enrollee for any covered condition requiring, according to generally accepted principles of good medical practice, the diagnosis or direct care and treatment of an illness, injury, or medical condition, and are not services provided only as a convenience.

N.M. Stat. Ann. § 59A-57-4 – grievances – procedure must be prompt and fair, with expedited review in emergent cases; final decision must be made by a qualified health care professional; UR program must ensure that enrollees have proper access to services including referrals to necessary specialists.

N.M. Admin. Code tit. 13, § 10.13.14, N.M. Admin. Code tit. 13, § 10.13.15 – grievances – each MHCP evidence of coverage/disclosure form must include a description of the appeals process and a statement identifying the Superintendent as an external source with whom grievances may be filed with the toll-free number; the MHCP must initially assume that every complaint constitutes a grievance; two levels of internal review, with determination at first level binding unless grievant appeals within 30 days; 30-day timeframe for notice of decision runs from date enrollee submits all information (with possibility of extension where MHCP experiences delay in obtaining documents and can demonstrate delay will not result in increased medical risk to enrollee); timeframe is 5 days from receipt of complaint for urgent care, OON services, medically necessary care; second-level review is conducted by a committee with no more than half having any previous involvement with case; decision is binding unless grievant appeals within 30 days of receipt of decision; grievant may appear in person; hearing must be held within 30 days (15 days advance notice to grievant); written decision within 10 days of hearing.

N.M. Admin. Code tit. 13, § 10.13.15 – independent review – enrollees may submit their grievances to the superintendent at any time, but superintendent has discretion to require exhaustion of internal procedures.

N.M. Admin. Code tit. 13, § 10.13.15 – nonretaliation – an enrollee who exercises the right to file a grievance may not be subjected to any retaliatory action.

N.M. Admin. Code tit. 13, § 10.13.15 – UR – the appeal process is to consist of an informal internal review (timeframes are max. 48 hours in urgent or emergency cases, 7 days for others; binding unless appealed within 30 days), a formal internal review (panel of health care professionals not previously involved, plus appropriately trained consultants; grievant may designate a specialist to participate in review at his/her own expense; timeframes are max. 48 hours in urgent or emergency cases, 30 days for others with additional 20 day extension possible; hearing within 24 hours urgent/emergency, 10 days other; grievant may attend, etc.), and a formal external review by an independent URO.

N.M. Admin. Code tit. 13, § 10.13.19 – UR standards – all determinations to authorize an admission, service, procedure or extension of stay must be rendered by a physician, RN, or other qualified health professional; all determinations to deny or limit an admission, service, procedure or extension of stay must be rendered by a physician; all determinations must be made on a timely basis as required by the exigencies of the situation and in accordance with sound medical principles, in any even not to exceed 24 hours for emergency care and 7 days for other determination; no retroactive denials of previously approved services; notices must contain reasons, etc.

N.M. Admin. Code tit. 13, § 10.13.14 – UR report – annually each MHCP must disclose to the Superintendent and its contracting providers the process by which it authorizes or denies services rendered by its providers pursuant to the benefits covered by the plan; any MHCP claiming that such information is proprietary has the burden of proof before the Superintendent.

N.M. Admin. Code tit. 13, § 10.13.19 – UR standards – UR determinations must be based on written clinical criteria and protocols developed with involvement from practicing physicians and other health professionals and providers within the MHCP’s network; these criteria and protocols must be periodically reviewed and updated and must, with the exception of internal or proprietary quantitative thresholds for utilization management, be readily available, upon request, to affected providers and enrollees; the MHCP has the burden of showing that information is proprietary.

N.M. Admin. Code tit. 13, § 10.13.15 – independent review – if MHCP fails to comply with any deadlines for internal appeals, the member and/or provider is relieved of the obligation to complete the internal process and may proceed directly to the external process; within 30 days of receipt of the written determination from a stage 2 internal appeal, the member/provider must file a written request with the department; the superintendent reviews submissions and accepts meritorious ones; timeframe for decision is 48 hours for urgent or emergent cases, 21 days for others; both the grievant and a MHCP rep. may appear in person, etc.; within 7 days after the superintendent receives the IURB recommendation, he/she informs the parties whether he/she accepts/rejects it, and the MHCP then has 10 days to accept/reject (or request a formal hearing); if the MHCP refuses to comply with a recommendation adopted by the superintendent, the superintendent may institute proceedings; requirements for IURBs include composition (two physicians and one attorney with relevant expertise licensed to practice in N.M.).

N.M. Stat. Ann. § 59A-57-5, N.M. Admin. Code tit. 13, § 10.13.15 – internal ombudsman – each MHCP must establish and adequately staff a consumer assistance office; where an enrollee initially makes an oral complaint and expresses interest in pursuing a grievance, the MHCP must assist the enrollee in make a written complaint/initiating a grievance.

Prohibition on Incentives
N.M. Stat. Ann. § 59A-57-6 – incentive prohibition – no MHCP may include in any of its contracts with providers any provisions that offer an inducement, financial or otherwise, to provide less than medically necessary services to an enrollee.

Emergency Care
N.M. Stat. Ann. §§ 59A-57-1, 59A-57-4 – emergency care – adopts prudent layperson standard; MHCPs must ensure that emergency care is immediately available without prior authorization requirements and appropriate OON emergency care is not subject to additional costs (elaborated at N.M. Admin. Code tit. 13, § 10.13.9).

Formularies
*N.M. Admin. Code tit. 13, § 10.13.12 – non-formulary drugs – MHCPs must allow enrollees to obtain drugs not on the formulary, without penalty and in a timely fashion, when the treatment for which the drug is prescribed is a covered benefit and the participating provider in consultation with the MHCP determines that the formulary’s equivalent has been or is reasonably expected to be less effective for the enrollee; or the formulary drug has caused or is reasonably expected to cause adverse reactions in the enrollee.

Nondiscrimination
*N.M. Admin. Code tit. 13, §§ 10.13.14, 10.13.17, 10.13.18, 10.13.22 – discrimination – no health care insurer or contracting health care facility or provider may discriminate against an enrollee by refusing to enter any health benefits contract, canceling or declining to renew or reinstate a contract, or altering its terms and the quality of services (to be) rendered because of (among other things) the enrollee’s health status, disability, or frequency of use of health care services or filing of a permitted grievance or appeal (however premium, price or charge differentials because of age or age based on objective, valid, and up-to-date statistical and actuarial data are not prohibited); each MHCP evidence of coverage/disclosure form must describe, among other things, conditions of cancellation, including a statement that if an enrollee believes coverage was canceled due to health status or health care requirements, he/she may appeal termination to the Superintendent; a MHCP may not cancel coverage for non-payment of copays if cancellation would constitute abandonment of a patient who is hospitalized for a life-threatening condition; a MHCP may not cancel coverage due to refusal to follow a prescribed course of treatment; if the Superintendent determines that an enrollee has been wrongfully terminated, may request immediate retroactive reinstatement.

*N.M. Admin. Code tit. 13, § 10.13.25 – discrimination – each provider contracts must require the provider/facility to provide health care services without discrimination on the basis of a patient’s health status or disability, among other things.

Consumer Participation
N.M. Stat. Ann. § 59A-57-5 – each managed health care plan shall establish a consumer advisory board.

Provider Protections
N.M. Stat. Ann. § 59A-57-6 – no conflict – no managed health care plan may require a provider to violate any recognized fiduciary duty of his profession or place his license in jeopardy.

N.M. Admin. Code tit. 13, § 10.13.25 – nonretaliation – an insurer or MHCP is prohibited from employing contract provisions that penalize a provider or facility that assists an enrollee in seeking reconsideration of a decision to deny or limit benefits.

Selected Benefit Mandates
N.M. Stat. Ann. §§ 59A-46-43, 59A-22-41 – diabetes – HMOs and health insurers must cover as a basic service, entitling enrollees to the medically accepted standard of medical care for diabetes (treatment and supplies, self-management training and medical nutrition therapy); when new or improved equipment, appliances, prescription drugs, insulin, or supplies are approved by the FDA, the HMO must maintain an adequate formulary to provide these resources and guarantee reimbursement/coverage within the limits of the plan/policy.

N.M. Admin. Code tit. 13, § 10.13.9 – basic services – insurers offering comprehensive services through a MHCP must provide/arrange for physician services reasonably required to maintain good health, medically necessary outpatient and inpatient services, emergency services, short-term rehabilitation services and physical therapy where treating physician determines that it can be expected to result in significant improvement of an enrollee’s physical condition within two months, etc.; also general dental services determined to be medically necessary in connection with certain disorders and cosmetic surgery from which an improvement in physiologic function could reasonably be expected.

N.M. Admin. Code tit. 13, § 10.13.12 – off-label uses of drugs – MHCPs that cover prescription drugs must also cover, subject to usual caveats.

Miscellaneous
*N.M. Stat. Ann. § 59A-57-10 – applicability to Medicaid – with a few caveats, the Patient Protection Act applies to the state Medicaid program; recipients/applicants who file an appeal with HS are precluded from filing with on the same issue with the superintendent, unless HS refuses to hear the appeal.

N.M. Stat. Ann. §§ 59A-57-5, 59A-57-11 – enforcement – a person adversely affected may file a complaint with the superintendent regarding a violation; the superintendent may issue any order he deems necessary or appropriate; penalties include a fine of up to $10,000 per violation.

*N.M. Stat. Ann. § 59A-57-9 – private ROA – a person who suffers a loss as a result of a violation of a right protected pursuant to the provisions of the Patient Protection Act [59A-57-1 to 59A-57-11], its regulations or a managed health care plan may bring an action to recover actual damages or $100, whichever is greater; a person likely to be damaged by a denial of a right may be granted an injunction (proof of monetary damages or intent not required); an individual enrollee is a third-party beneficiary of the managed health care plan contract and may sue to enforce it (but the contract may be amended without the enrollee’s consent); the Act does not make a plan vicariously liable for the actions of independent contractor health care providers.

N.M. Admin. Code tit. 13, § 10.13.14 – quality – upon request of enrollees, prospective enrollees, or subscribers, the MHCP shall provide copies of its quality assurance plan and patterns of utilization of services that it routinely tracks.

N.M. Admin. Code tit. 13, § 10.13.21 – confidentiality – any data or information pertaining to the diagnosis, treatment or health of any enrollee shall be held in confidence and shall not be disclosed to any person except: as necessary to carry out the rule, upon express consent of the enrollee, pursuant to state or court order, in litigation between enrollee and insurer if pertinent, or where otherwise required by law.

N.M. Admin. Code tit. 13, § 10.13.26 – marketing – typical provisions.



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New York

Consumer/Patient Protections

Access
*N.Y. Ins. Law § 4804(a) (health insurers, hospital or health service corporations), N.Y. Pub. Health Law § 4403(6)(a) (HMOs) (McKinney) – OON referrals – if an insurer offering a managed care product/HMO determines that it does not have an IN provider with appropriate training and experience to meet the particular health care needs of an enrollee, the insurer must make a referral to an appropriate provider, pursuant to a treatment plan approved by the insurer in consultation with the PCP, the OON provider and the enrollee/designee, at no additional cost to the enrollee beyond what would otherwise be due for IN services.

*N.Y. Ins. Law § 4804(b), N.Y. Pub. Health Law § 4403(6)(b) (McKinney) – standing referrals – an insurer offering a managed care product/HMO must have a procedure by which an enrollee who needs ongoing care from a specialist may receive a standing referral to the specialist; need is determined by the insurer/PCP in consultation with the insurer, in consultation with the specialist; OON referral is only required if conditions of (a) are met; referral must be pursuant to an approved treatment plan, which may limit the number of visits or period during which visits are authorized and require updates to the PCP.

*N.Y. Ins. Law § 4804(c), (d), N.Y. Pub. Health Law § 4403(c), (d) (McKinney) – specialists as PCPs – an insurer/HMO must have a procedure by which a new/newly diagnosed enrollee with a life-threatening condition or disease or a degenerative and disabling disease or condition, requiring specialized medical care over a prolonged period of time, may receive a referral to a specialist with expertise in treating the disease/condition responsible for and capable of providing and coordinating the enrollee’s primary and specialty care; referral must be pursuant to an insurer-approved treatment plan; OON is required only if conditions of (a) are met, but in such a case charges must be no greater than for IN services; similar provision concerning referral to specialty care center.

*N.Y. Pub. Health Law § 4403(5) – access/network adequacy – at the time of initial licensure and at least every 3 years thereafter (plus application to expand service area), the commissioner is to ensure that an HMO maintains a network adequate meet enrollees’ comprehensive health needs and provide appropriate choice of providers by determining that, e.g., there are sufficient providers in each area of specialty practice to meet the needs of the enrollment population; criteria to be considered include the availability of appropriate and timely care that is provided in compliance with the standards of the ADA to assure access to health care for the enrollee population.

*N.Y. Ins. Law § 4804(e), (f), N.Y. Pub. Health Law § 4403(e), (f) (McKinney) – continuity of care – in case of provider leaving network, insured must be permitted to continue ongoing course of treatment for up to 90 days from the date of notice to the insured of the disaffiliation, but only if the provider agrees to certain conditions; a new insured must be permitted to continue ongoing course of treatment for up to 60 days from the effective date of enrollment if the insured has a life-threatening or degenerative and disabling disease or condition (or has entered second trimester of pregnancy), subject to same qualifier.

N.Y. Pub. Health Law § 4406-b – OB/GYNs – applies to HMOs; direct access to qualified provider for two exams annually or any care related to pregnancy (plus needed follow-up care).

Complaints/UR
N.Y. Ins. Law § 4802, N.Y. Pub. Health Law § 4408-a (McKinney) – grievances and internal appeals – the procedure must be reasonably accessible to those who do not speak English; grievances respecting referral and coverage may be submitted orally; the procedure must be reasonably accessible to those who do not speak English; insurer must have toll-free number; all grievances must be resolved in an expeditious manner, and in any event no more than: 48 hours after receipt of all necessary information when delay would significantly increase the risk to an enrollee’s health; 30 days after receipt...for requests for referrals or determinations concerning coverage; 45 days...in all other cases; insurer/HMO must designate qualified personnel to review (licensed, certified or registered health care professionals where grievance concerns clinical matters); content of notice is specified; enrollee/designee has 60 b.d. to file written appeal; determination of appeal on clinical matter must be made by qualified personnel (meaning a licensed...who did not make the initial determination), and at least one must be a clinical peer reviewer (defined term); insurer/HMO shall seek to resolve all appeals in the most expeditious manner and make a determination and provide notice no more than: 2 b.d. after receipt of all necessary information when a delay would significantly increase the risk to the enrollee’s health; 30 b.d....in all other instances; content of notice specified; insurers/HMOs are prohibited from retaliating or taking any discriminatory action against an enrollee because the enrollee has filed a grievance or appeal; rights and remedies conferred are cumulative, not in lieu of others.

N.Y. Ins. Law §§ 4900 to 4916 (insurers and hospital or health service corporations), N.Y. Pub. Health Law §§ 4900 to 4916 (HMOs, IPAs and medical groups) (McKinney) (new provisions eff. 7/1/99) – UR/definitions (§4900) – adverse determination means a determination by a UR agent that an admission, extension of stay, or other health care services (includes pharmaceuticals and DME), upon review based on the information provided, is not medically necessary; clinical peer reviewer means a physician or other licensed health care professional who typically manages the medical condition or disease or treatment under review and, for external review, such a person who is board certified/eligible or credentialed in the appropriate specialty, has been practicing the specialty for at least 5 years, and is knowledgeable about the service or treatment under appeal; disabling condition or disease means a condition or disease which, according to the current diagnosis of the enrollee’s attending physician, is consistent with the definition of “disabled person” pursuant to §208(5) of the social services law; life-threatening condition or disease means a condition or disease which, according to the current diagnosis of the enrollee’s attending physician, has a high probability of causing the enrollee’s death.

N.Y. Ins. Law § 4902, N.Y. Pub. Health Law § 4902 (McKinney) – UR/standards – UR agents must have, among other things, an expedited appeals process for denials of continued inpatient care or where there is imminent or serious threat to the health of the enrollee, appropriate policies and procedures to ensure that all applicable laws to protect the confidentiality of individual medical records are followed, emergency services not subject to prior authorization.

N.Y. Ins. Law § 4903, N.Y. Pub. Health Law § 4903 (McKinney) – UR/initial review – where a review involves an adverse determination, must be conducted by a clinical peer reviewer; routine prospective review determination must be made and noticed within 3 b.d. of receipt of necessary information (1 b.d. in case of determination involving continued or extended health care services or additional services within a course of treatment, and notice to provider suffices); content of notice specified; if UR agent fails to consult with recommending provider, provider must have the opportunity to request reconsideration; failure by the UR agent to make a determination within the prescribed time periods is deemed an adverse determination subject to appeal.

N.Y. Ins. Law § 4904, N.Y. Pub. Health Law § 4904 (McKinney) – UR/appeal – in the expedited appeal process, the UR agent must provide reasonable access to it clinical peer reviewer within 1 b.d. of receiving a request, and a determination must be made within 2 b.d. of receipt of necessary information to conduct the appeal; if the appealing party is not satisfied, may further appeal through the standard or the external appeal process; timeframe for determination in standard appeal process is 45 days, with right to external appeal of adverse determination, and appeals may be filed in writing or by telephone; content of notices specified; both expedited and standard appeals shall only be conducted by clinical peer reviewers other than those who rendered the adverse determination; failure by the UR agent to make a determination within the prescribed time periods is deemed an adverse determination subject to appeal.

N.Y. Ins. Law § 4905, N.Y. Pub. Health Law § 4905 (McKinney) – UR/confidentiality, incentives, etc. – each UR agent must have written procedures for assuring that patient-specific information obtained during the UR process will be kept confidential accordance with applicable laws; summary data is not to be considered confidential if it does not provide information to allow identification of individual patients; UR agents may not permit or provide compensation to employees/agents/contractors based on either a percentage of the amount by which a claim is reduced for payment or the number of claims or cost of services for which the person has denied authorization or payment, or any other method that encourages the rendering of an adverse determination; a UR agent may not base an adverse determination on a refusal to consent to observing any service; neither UR agents nor their commissioning entities may penalize enrollees/designees or their providers for, or discourage them from, undertaking an appeal, ADR, or judicial review of an adverse determination. (§ 4906 – rights not waivable)

External appeals
N.Y. Ins. Law § 4910, N.Y. Pub. Health Law § 4910 (McKinney) – external appeals/applicability – eff. 7/1/99; an enrollee/designee (or provider, in retrospective cases) has the right to request an external appeal when coverage has been denied on the grounds that the health care service is (a) not medically necessary or (b) (i) experimental or investigational and (ii) the enrollee has a life-threatening or disabling condition or disease (a) for which standard health services or procedures have been ineffective or would be medically inappropriate, or (b) for which there does not exist a more beneficial standard health service or procedure covered by the plan, or (c) for which there exists a clinical trial (defined term), and (iii) the attending physician recommended (a) a health service or procedure/drug that, based on two documents from the available medical and scientific evidence, is likely to be more beneficial to the enrollee than any covered standard health service or procedure; or (b) a clinical trial for which the enrollee is eligible and (iv) the service or procedure would otherwise be covered under the policy except for the plan’s determination that it is experimental or investigational; internal appeals must be exhausted unless waived by agreement of the parties; the plan may charge a fee of up to $50 (refundable if the enrollee prevails, and waivable in Medicaid and other hardshop cases); any external appeal process established under existing federal and state law relating to Medicare/Medicaid appeals (and subsequently enacted federal law) supersedes determinations under this process; payment for the appeal is the responsibility of the health plan (§ 4914); enrollees may not be required to exhaust external appeals prior to seeking judicial relief (s 42 of act).

N.Y. Ins. Law §§ 4911 to 4913, N.Y. Pub. Health Law §§ 4911 to 4913 (McKinney) – external appeals/standards – external review agents must be certified by the state; standards for certification include development of procedures to ensure the selection of qualified and impartial clinical peer reviewers and procedures to ensure confidentiality; a separate provision disqualifies reviewers from conducting an appeal where there is a conflict of interest (with the commissioner to issue regulations to minimize conflicts where they may be unavoidable); subject to incentive prohibitions similar to those for UR (§ 4915).

N.Y. Ins. Law § 4914, N.Y. Pub. Health Law § 4914 (McKinney) – external appeals/procedure – an enrollee has 45 days after receipt of a notice of a final adverse determination or denial in which to initiate an appeal; the external appeal agent has 30 days from receipt of request to make a determination and 2 b.d. to notify the enrollee and plan of the determination; where the attending physician states that a delay in providing the service would pose an imminent or serious threat to the enrollee’s health, the appeal must be completed within 3 days with immediate notice by telephone or fax; for external appeals concerning medical necessity, the standard is whether the plan acted reasonably and with sound medical judgment and in the best interest of the patient, taking into consideration the clinical standards of the plan, the information provided concerning the patient, the attending physician’s recommendation, and applicable generally accepted practice guidelines developed by the federal government, national or professional medical societies, boards and associations; the determination must be conducted by one or a greater odd number of clinical peer reviewers, and is subject to the terms and conditions generally applicable to benefits under the plan’s evidence of coverage, and it is binding on the parties and admissable in court.

N.Y. Ins. Law § 4914, N.Y. Pub. Health Law § 4914 (McKinney) – external appeals/procedure (experimental treatment) – the determination of whether patient costs will be covered must be conducted by a panel of three or a greater odd number of clinical peer reviewers; the standard is either a determination of the majority that, upon review of the applicable medical and scientific evidence (or confirmation that the recommended treatment is a clinical trial), the enrollee’s medical record, and any other pertinent information, the proposed service/treatment is likely to be more beneficial than any standard treatment(s) for the condition or disease (or, in the case of a clinical trial, is likely to benefit the enrollee in the treatment of the condition or disease); the determination is subject to the terms and conditions generally applicable to benefits under the plan’s evidence of coverage, and it is binding on the parties and admissable in court.

N.Y. Ins. Law §§ 3216(i)(22), 3221(k)(12), 4303(z), 4321(f) (McKinney) – experimental treatments – parallel provisions applicable to individual accident and health insurance policies, group or blanket health insurance policies, hospital or health service corporations, and HMOs; no policy/contract issued after 7/1/99 may exclude coverage of a health care service on the basis that the service is experimental/investigational, is rendered as part of a clinical trial, or a pharmaceutical product prescribed for an off-label use provided that coverage of the patient care costs of the service has been recommended by an external appeal agent following the approved appeal process.

Disclosure
N.Y. Pub. Health Law § 4408(1)(d) (HMOs), N.Y. Ins. Law §§ 3217-a(a)(4), 4324(a)(4) (health insurers, hospital and health service corporations) (McKinney) – incentive disclosure – each HMO/insurer must provide each subscriber, and upon request each prospective subscriber prior to enrollment, with a written description prepared annually of the types of methodologies used to reimburse particular types of providers or reimburse for the provision of particular types of services (with the caveat that disclosure of individual contracts or specific details is not required).

N.Y. Ins. Law §§ 3217-a, 4324, N.Y. Pub. Health Law § 4408 (McKinney) – other disclosure – written disclosure to each insured, and prospective enrollees upon request, must include the definition of medical necessity in use, UR policies and procedures, grievance procedures, and descriptions of various rights under state law, among other things; available to enrollees and prospective enrollees upon request: information relating to consumer complaints, procedures for protecting confidentiality, a description of procedures for making decisions about experimental status, and (if requested in writing), specific written clinical review criteria relating to a particular condition or disease.

N.Y. Ins. Law §§ 3217-b, 4325, N.Y. Pub. Health Law 4406-c (McKinney) – gag clauses – insurers, health and hospital service corporations, and health care plans (HMOs, IPAs and medical groups) are prohibited from prohibiting or restricting, by contract or written policy or procedure, any provider from (i) disclosing to any insured/designated representative/prospective insured any information the provider deems appropriate regarding treatments and alternatives or the terms of the insurer’s product as they relate to the insured or (ii) filing a complaint, making a report or commenting to an appropriate governmental body regarding policies/practices that may negatively impact quality or access or (iii) advocating on behalf of the insured.

Emergency Care
N.Y. Ins. Law §§ 3216(i)(9), 3221(k)(4), 4303(a)(2), 4900(c), 4902(a)(8), 4905(m), N.Y. Pub. Health Law §§ 4900(3), 4902(1)(h), 4905(13) (McKinney) – emergency care – parallel provisions applicable to individual accident and health insurance policies, group or blanket health insurance policies, hospital or health service corporations, and HMOs; adopts prudent layperson standard; not subject to prior approval/in no event shall any one be required to inform or contact a UR agent prior to the provision of emergency care.

Nondiscrimination
N.Y. Ins. Law § 3221(q)(1) (McKinney) – nondiscrimination – insurers issuing/delivering a group or blanket policy are prohibited from establishing rules for eligibility based on a list of health status-related factors, including health status, medical condition (including both physical and mental illnesses), claims experience, and receipt of health care, disability; no insurer may, on the basis of any health-status-related factor, require any insured to pay a premium or contribution which is greater than the premium for a similarly situated insured enrolled in the plan.

Prohibition on Incentives
N.Y. Pub. Health Law §§ 4403(a)(5), 4406-c(5-b) (HMOs), N.Y. Ins. Law §§ 3217-b(f), 4325(f) (health insurers, hospital and health service corporations) (eff. date 7-1-99) – incentive prohibition – the statutory language suggests that financial risk may not be transferred to providers without some assessment of capacity to absorb risk; also, contracts may not penalize providers for unfavorable case mix so as to jeopardize the quality of or enrollees’ appropriate access to medically necessary services (with the caveat that discounted FFS and capitation are not presumed prima facie to jeopardize quality or access); regulatory review of contracts is mandated at licensure and at least every 3 years thereafter.  (separate sections deal with financial incentives to UR agents)

Consumer Participation
N.Y. Comp. Codes R. & Regs. tit. 10, § 98.11(f) (1998) – governance – within one year of the HMO receiving a certificate of authority, no less than 20 percent of the members of the governing authority must be enrollees of the HMO; employees or providers of health services may not serve as enrollee representatives.

Provider Protections
*N.Y. Ins. Law § 4803(d), N.Y Pub. Health Law § 4406-d(4) (McKinney) – profiling – applies to insurers, health and hospital service corporations, and health care plans (HMOs, IPAs and medical groups); any profiling data used to evaluate the performance or practice of a health care professional must be measured against stated criteria and an appropriate group of health care professionals using similar treatment modalities serving a comparable patient population.

* N.Y. Ins. Law §§ 3217-b(f), 4325(f), N.Y. Pub. Health Law § 4406-c(5-b) (McKinney) – case mix – no contract entered into with health care providers will be enforceable is it includes terms which penalize providers for unfavorable case mix so as to jeopardize the quality of or enrollees’ appropriate access to medically necessary services; provided, however, that payment at less than prevailing fee for service rates or capitation will not be deemed or presumed prima facie to jeopardize quality or access.

N.Y. Ins. Law § 4803(d), N.Y. Pub. Health Law § 4406-d(5) – nonretaliation – insurers/plans are prohibited from terminating or refusing to renew the participation of health care professional solely because the professional has advocated on behalf of an insured, filed a complaint against the insurer, appeal a decision of the insurer, provided information to any enrollee or governmental body as permitted under the gag clauses, or requested a hearing or review under provisions that protect providers.

HMO Protections
N.Y. Pub. Health Law § 4410 (McKinney) – practice of medicine – the provision of comprehensive health care services directly or indirectly by an HMO through a plan shall not be considered the practice of the profession of medicine by such organization or plan; however, each member, employee or agent shall be fully and personally liable and accountable for any negligent or wrongful act or misconduct committed by him or any person under his direct supervision and control while rendering professional services on behalf of the organization/plan. (fairly standard, although verbiage about personal liability seems to be beyond many state statutes; contrast Missouri)

Selected Benefit Mandates
N.Y. Ins. Law §§ 3216(i)(12), 3221(l)(12), 4303(q)(1), 4406 (makes art. 43 Selected Benefit Mandates applicable to HMOs) (McKinney) – off-label uses of drugs – parallel provisions applicable to individual accident and health insurance policies, group or blanket health insurance policies, hospital or health service corporations and HMOs that cover prescription drugs; limited to cancer treatment.

N.Y. Ins. Law §§ 3216(i)(16), 3221(k)(7), 4303(u)(1), 4406 (McKinney) – diabetes – parallel provisions applicable to individual accident and health insurance policies, group or blanket health insurance policies, hospital or health service corporations HMOs; includes diabetes self-management education.

N.Y. Ins. Law §§ 3216(i)(19), 3221(k)(9), 4303(w)(1), 4406 (McKinney) – second opinion (cancer) – parallel provisions applicable to individual accident and health insurance policies, group or blanket health insurance policies, hospital or health service corporations and HMOs; every policy which provides comprehensive coverage must cover a second medical opinion by an appropriate specialist in the event of a positive or negative diagnosis of cancer, recurrence, or recommendation of a course of treatment, including a non-participating specialist (when the attending physician makes the referral) at no additional cost to the insured.

N.Y. Ins. Law §§ 3216(i)(20), 3221(k)(10), 4303(x)(1), 4406 (McKinney) – reconstructive surgery – standard.

N.Y. Ins. Law § 3216(i)(21), 4303(y), 4406 (McKinney) – enteral formulas for home use – standard provision.

N.Y. Ins. Law § 3221(l)(4), (5), (6) (McKinney) – mental illness/substance abuse – applies to group policies.

Special Needs Plans

HIV
N.Y. Pub. Health Law § 4403-c (McKinney) – HIV/certification – provisions include specification of application content (among other things, applicant must describe any experience in providing HIV services funded or approved by the department, demonstrate its ability to provide or continue to provider quality HIV services, and describe its current and proposed capacity to provide or arrange for services for a defined area and population) and matters that must be demonstrated prior to certification (among other things, willingness to enroll any persons who is eligible and the existence of a mechanism by which the enrolled population may participate in determining the policies of the organization, definition of a specific network of providers and facilities capable of providing comprehensive HIV special needs services, financial responsibility and soundness, willingness and ability to assure that necessary services will be provided in a timely manner, to assure continuity of care, and to implement procedures for referrals, as requested, to appropriate care for affected family members, acceptable procedures for outreach, acceptable procedures for linguistically and culturally-competent communication, acceptable procedures for monitoring the quality of care per clinical standards maintained by the state’s AIDS Institute, and approved mechanisms for resolving complaints and grievances—but commissioner is empowered to impose alternative requirements).

*N.Y. Pub. Health Law § 4403-c (McKinney) – HIV/plan responsibilities – certified plans are responsible for providing or arranging for all medical assistance services and for assisting enrollees in the prudent selection of such services; nondiscrimination is addressed (plans are prohibited from requesting disenrollment of an enrollee based on any diagnosis, condition, or perceived diagnosis or condition, or an enrollee’s efforts to exercise his or her rights under the grievance process); plans must permit standing referrals and allow for continuity of care (timeframes match general provisions); confidentiality is addressed; UR requirements apply; § 4408 disclosure requirements apply; § 4406-c prohibitions apply; special needs plans are to function distinctly from other health plans.

*N.Y. Pub. Health Law § 4403-c (McKinney) – HIV/commissioner responsibilities – risk adjustment is addressed (in developing capitation rates the commissioner is authorized to consider, at a minimum, age, eligibility category, historic cost and utilization of covered enrollees and services, anticipated costs of emerging treatment modalities, and the expected impact of a managed care environment); the department is to establish a stop-loss reinsurance program to provide reasonable protection for catastrophic cases and adverse selection; quality assurance is addressed (the department is to monitor the performance, quality, and utilization of the plans on at least an annual basis, items to be addressed including access to OON specialty services; provision is made for grants to plans.

Mental Health
*N.Y. Pub. Health Law § 4403-d (McKinney) – mental health/certification – provisions include specification of application content (among other things, applicant must describe any experience in providing mental health or related services funded or approved by the department, demonstrate its ability to provide or continue to provide quality services, describe its current and proposed capacity to provide or arrange for services for a defined area and population, and provide assurances that it will use involuntary treatment and safety interventions only when to the extent clinically necessary and appropriate, implement procedures to communicate appropriately NESPs, and make every effort to expand access to and coordination of services) and matters that must be demonstrated prior to certification (among other things, willingness to enroll any persons who is eligible and the existence of a mechanism by which the enrolled population and their families may participate in determining the policies of the organization, definition of a specific network of providers and facilities capable of providing mental health and related support services, financial responsibility and soundness, willingness and ability to assure that necessary services will be provided in a timely manner, to enhance continuity of care, and to implement procedures for referrals, as requested, to appropriate care for affected family members, acceptable procedures for outreach, and acceptable procedures to facilitate hospital discharges to appropriate settings—but commissioners are empowered to impose alternative requirements)

*N.Y. Pub. Health Law § 4403-d (McKinney) – plan responsibilities – plans must allow for continuity of care (timeframes match general provisions); a general benefit package is specified and plans are required to arrange for the development and implementation of an individualized service plan for each enrollee under the supervision of a physician (with enrollee participation); confidentiality is addressed; UR requirements apply; § 4408 disclosure requirements apply; § 4406-c prohibitions apply; special needs plans are to function distinctly from other health plans.

*N.Y. Pub. Health Law § 4403-d (McKinney) – commissioner responsibilities – program is to be jointly administered by the commissioners of health and mental health; the RFP is to prepared in cooperation with county agencies; quality assurance is addressed (the department is to monitor the performance, quality, and utilization of the plans on at least an annual basis, items to be addressed including access to OON specialty services); risk adjustment is addressed (in developing capitation rates the commissioner is authorized to consider, at a minimum, age, eligibility category, historic cost and utilization of covered enrollees and services, anticipated costs of emerging treatment modalities, and the expected impact of a managed care environment); the department is to establish a stop-loss reinsurance program to provide reasonable protection for catastrophic cases and adverse selection; provision is made for grants to plans.

Note: there is also a transitional partial capitation certification for rural areas (§ 4403-e) and authorization for demonstration projects in the area of managed long-term care (§ 4403-f).

Miscellaneous
N.Y. Pub. Health Law § 4410 – confidentiality – HMO/plan not allowed to disclose information acquired in the course of rendering care, unless the patient waives the right of confidentiality, or as otherwise required by law; the commissioner may only obtain enrollee information subject to the establishment of protocols to ensure that patient-specific information is not disclosed to third parties other than to entities serving as agents of the state for purposes of quality assurance and oversight; in addition to any other sanction provided by law, any employee of the department who willfully violates this regulation or any other rule/procedure pertaining to disclosure of material collected pursuant to this subdivision will be deemed to have committed an act of misconduct and will be disciplined in accordance with the provisions of the civil service law.  (Also, UR standards mandate policies and procedures to ensure compliance with laws protecting confidentiality.)

N.Y. Pub. Health Law § 4406-a – arbitration – applies to HMOs; regulates arbitration election notices/agreements (enrollees and covered family members must have option to decline).



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North Carolina

Consumer/Patient Protections

Access
*N.C. Gen. Stat. § 58-3-200(c) – OON providers – does not apply to DHHS-administered plans; if contracting providers able to meet the health care needs of an insured are not reasonably available to an insured without unreasonable delay, the insured cannot be penalized or subjected to OON benefit levels for seeking services outside the network.

N.C. Gen. Stat. § 58-51-38 – OB/GYNs – managed care plans (HMOs, PPOs) must allow female beneficiaries direct access to a participating OB/GYN for OB-GYN services.

Complaints/UR
*N.C. Gen. Stat. § 58-3-200(b) – definition of medical necessity – an insurer (broad definition) that limits its health benefit plan (exclude plans administered through DHHS) coverage to medically necessary services and supplies must define “medically necessary services or supplies” as those covered services or supplies that are: (1) provided for the diagnosis, treatment, cure, or relief of a health condition, illness, or disease; and not for experimental, investigational, or cosmetic purposes; (2) necessary for and appropriate to the diagnosis, treatment, cure, or relief of a health condition, illness, injury, disease, or its symptoms; (3) within generally accepted standards of medical care in the community; (4) not solely for the convenience of the insured, the insured’s family, or the provider; the insurer is not precluded from comparing the cost-effectiveness of alternative services or supplies when determining which of the services or supplies will be covered; no retraction of determinations in favor of coverage unless the determination was based on a material misrepresentation (same definition and requirements for UR under § 58-50-61 et seq.).

N.C. Gen. Stat. § 58-50-61 – UR/operations – health benefit plan does not include plans administered by DHHS; insurer or URO must use documented clinical review criteria based on sound clinical evidence and periodically evaluated to assure ongoing efficacy; medical doctor must evaluate clinical appropriateness of noncertifications (=determination that service does not meet requirements for medical necessity, appropriateness, setting, level or care and is denied, reduced or termination, and does not address situation where specific service requested is clearly stated); compensation to reviewers containing any incentives to make particular review decision or based on the number or type of noncertifications rendered are prohibited.

N.C. Gen. Stat. §§ 58-50-61, 58-50-62 – UR/procedure – appeal plus two tiers of grievance review; in concurrent reviews, insurer must pay pending notice of noncertification; clinical review criteria must be provided upon request; in standard appeals, decisions must be rendered within 30 days of request, with content of notice specified; insurers may require documentation of medical justification for expedited appeals, with decision within 4 days of receipt of information justifying expedited review; for first level grievance review, decision within 30 days of receipt; reviewers must be new to matter and if clinical, must include a medical doctor with appropriate expertise; content of decision specified; in second level grievance review, covered person must be given notice within 10 days of rights to request and receive information, attend, present, ask questions, and be assisted or represented; panel must be comprised of person new to the matter (with possible exception of clinical peer) who are not employees of the insurer or URO and do not have a financial interest in the outcome, and must have appropriate expertise, including at least one clinical peer; review meeting must take place within 45 days of receipt of request, with decision within 7 b.d. of meeting, and content of notice specified including availability of commissioner’s office for assistance (telephone number and address); expedited procedure must be available at second level; nondiscrimination.

Disclosure
N.C. Gen. Stat. § 58-3-191(b) – disclosure (includes formularies) – information that plans (HMO, PPO) must provide to plan participants and bona fide prospective participants upon request includes, for denials, written reasons and an explanation of the UR criteria relied on, the plan's restrictive formularies or prior approval requirements for obtaining prescription drugs, whether a particular drug or therapeutic class of drugs is excluded from its formulary, and the circumstances under which a nonformulary drug may be covered, and the plan’s procedures for determining whether a specified procedure, test, or treatment is experimental; insurers must make the reports filed with the commissioner available on their premises and provided any insured access to them upon request.

N.C. Gen. Stat. § 58-3-191(a) – disclosure (to commissioner) re access/incentives – plan’s annual report to the commissioner must include, among other things, (i) the health plan’s method for arranging or providing health care services from OON providers, both within and outside of its service area, when IN providers are not available to provider covered services, and (ii) aggregate financial compensation data, including the percentage of providers paid under capitation, discounted FFS or salary, the services included in the capitation payment, and the range of compensation paid by withhold or incentive payments.

N.C. Gen. Stat. § 58-3-176 – gag clauses – insurers (broad definition) are prohibited from limiting participating providers’ ability to discuss clinical treatment options with enrollees or their professional obligations to patients as specified under their licenses.

Emergency Care
N.C. Gen. Stat. § 58-3-190 – emergency care – adopts prudent layperson standard; insurers may not require prior authorization if standard is met; OON services must be covered if a prudent layperson would have believed that delay would worsen the emergency or services were not sought IN owing to circumstances beyond the covered person’s control; standard no reneging provision (“an insurer that has given prior authorization for emergency services shall cover the services...unless...”); both the ER and the insurer must make a good faith effort to communicate to expedite postevaluation and poststabilization services (prudent layperson standard also incorporated in UR provisions, § 58-50-61).

Nondiscrimination
*N.C. Admin. Code tit. 11, r. 20.0202 – discrimination – all contracts between network plan carriers and health care providers must require providers to, among other things, maintain confidentiality of health records and personal information as required by law, cooperate with members in member grievance procedures, and contain a provision that the provider shall not discriminate against members on the basis of health status, etc.

Provider Protections
*N.C. Gen. Stat. § 58-3-200(e) – nondiscrimination – insurers are prohibited from establishing provider selection or contract renewal standards or procedures that are designed to avoid or otherwise of the effect of avoiding enrolling high-risk populations by excluding providers because they are located in geographic areas that contain high-risk populations or because they treat or specialize in treating populations that present a risk of higher-than-average claims or health care services utilization.

N.C. Gen. Stat. § 58-50-62 – UR/nonretaliation – insurers may not discriminate against providers based on any action taken in an UR review, appeal or grievance proceeding.

Selected Benefit Mandates
N.C. Gen. Stat. §§ 58-51-61 (insurers/PPOs), 58-65-91 (hospital or medical service plans), 58-67-74 (HMOs) – diabetes – policies/plans must provide coverage for medically appropriate and necessary services, including diabetes outpatient self-management training and educational services, and equipment, supplies, medications, and laboratory procedures used to treat diabetes.

N.C. Gen. Stat. §§ 58-51-59 (insurers/PPOs), 58-65-94 (hospital or medical service plans/PPOs), 58-67-78 (HMOs, but article 67 does not apply to Medicaid HMOs) – off-label uses of drugs – policies/plans that cover FDA-approved prescribed drugs for the treatment of certain types of cancer may not exclude coverage of any drug on the basis that the drug has been prescribed for the treatment of a type of cancer for which the drug has not been approved by the FDA; standard caveat that the drug must be FDA-approved and must have been proven effective and accepted for the treatment of the specific type of cancer for which the drug has been prescribed; in addition, coverage is not required for any experimental or investigational drugs or any drug that the federal Food and Drug Administration has determined to be contraindicated for treatment of the specific type of cancer.

Miscellaneous
N.C. Gen. Stat. § 58-51-55 – mental health – a policy that covers both physical illness and mental illness may not impose a lesser lifetime or annual dollar limit on the mental health benefits, subject to certain qualifications; applies to group health insurance contracts covering more than 50 employees; expires 10-1-2001.

N.C. Admin. Code tit. 11, r. 20.0509 – confidentiality – Each HMO shall develop written policies and procedures to protect the confidentiality of medical record information and personal information relating to covered individuals.



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North Dakota

Consumer/Patient Protections

Access
N.D. Admin. Code §§ 45-06-07-04(12), (14), 45-06-07-06 – continuity of care – a group contract issued by an HMO must contain a provision that any enrollee who is an inpatient in a hospital or SNF on the date of discontinuance of the contract will have continuing coverage (at the contract premium) until discharge; a group contract issued by an HMO must offer an extension to enrollees who are totally disabled at the date of discontinuance until the earlier of 12 months after contract termination or recovery from total disability; HMOs are to have written procedures governing the availability of services utilized by enrollees, including treatment of chronic illness.

Complaints/UR
N.D. Admin. Code § 45-06-07-03(15) – medical necessity – defined as appropriate and necessary services as determined by a provider affiliated with the HMO which are rendered to an enrollee for any condition requiring, according to generally accepted principles of good medical practice, the diagnosis or direct care and treatment of an illness or injury and are not provided only as a convenience; does not preclude HMO for establishing standards or penalizing providers for failure to meet them; in the case of emergency services, the HMO has the right to make the final determination of whether services should be covered.

N.D. Admin. Code §§ 45-06-07-07, 45-06-10-02 – grievances – very limited grievance and appeal provisions, but does require involvement of a practitioner trained in the relevant specialty on appeal, and does prohibit any form of compensation to a practitioner giving an opinion that is dependent on the result.

N.D. Century Code §§ 26.1-26.4-01 to 26.1-26.4-05 – UR/standards – notification of determination to provider of record or enrollee or other appropriate individual within 2 b.d. of receipt of request and all information necessary to complete the review; determinations must be reviewed by physician (or licensed psychologist, if appropriate) or made in accordance with standards or guidelines approved by a physician or licensed psychologist; any notice must include the principal reason for the determination and procedures to initiate an appeal; on appeal, determination must be made by physician or psychologist, and decision must be made no later than 30 days from date of filing and receipt of all necessary information, reduced to 48 hours in emergency or life-threatening situations; staff must be available toll-free at least 40 hrs. per week during normal business hours; UR agents must allow a minimum of 24 hrs. following emergency treatment to give notice and request certification; a second-level appeal must involved a physician trained in the relevant specialty; commissioner may accept accreditation in lieu of compliance with these standards; UR agent has 30 days to respond to notice of alleged violation; after hearing commissioner may issue a cease and desist order or order payment of up to $10,000 per type of violation (if frequency indicates a business practice) or suspend or revoke a license; law does not apply to agent providing services to the federal government or to the department of human services.

Disclosure
N.D. Century Code § 26.1-04-03(14) – gag clauses/nonretaliation – applies to any public or private plan; an entity offering a health plan may not restrict or interfere with any medical communication and may not, solely on the basis of a medical communication, refuse to contract with or terminate a provider or refuse to refer patients or pay for covered services; medical communication means any communication, other than a knowing or willful misrepresentation, made by a provider to a patient regarding health care needs or treatment options and the applicability of the plan to the patient’s needs or treatment, and includes communications concerning incentives.

Emergency Care
N.D. Admin. Code §§ 45-06-07-03(5), 45-06-07-04 – emergency care – HMOs must cover emergency care services within the service area from nonaffiliated providers only where delay in receiving care from the HMO could reasonably be expected to cause severe jeopardy to the enrollee’s condition; an HMO may not limit coverage within the service area to affiliated providers only.

Nondiscrimination
*N.D. Admin. Code §§ 45-06-07-04(8), 45-06-07-05 – nondiscrimination – coverage may not be canceled or terminated on the basis of an enrollee’s health or because the enrollee has exercise the enrollee’s rights under the HMO’s grievance procedure; an HMO may not unfairly discriminate against any enrollee or applicant for enrollment on the basis of, among other things, frequency of utilization of services, but does not prohibit setting rates or establishing a schedule of charges in accordance with relevant actuarial data; an HMO may not establish rules for eligibility including continued eligibility of any individual under the terms of a group contract based on a health-status related factor, but does not mandate particular benefits or prevent limitations or restrictions on the amount, level, extent, or nature of benefits for similarly situated enrolled individuals; an HMO offering group contracts may not require a premium or contribution greater than that for a similarly situated enrolled individual based on any health status-related factor (linked to definition in N.D. Century Code § 26.1-36.3-01, which relates to nondiscrimination provisions in the state’s small employer insurance program).

Selected Benefit Mandates
N.D. Century Code § 26.1-36-06.1 – off-label uses of drugs – an insurer, health service corporation, or HMO that provides coverage for drugs may not exclude a drug for a particular indication on the grounds that it has not been approved by the FDA for that use if it is recognized for the treatment of that indication in the standard reference compendia or medical literature.

N.D. Century Code § 26.1-36-08 – substance abuse – applies to group policies or contracts; specifies minimum days of service that must be covered for inpatient treatment, partial hospitalization, and outpatient treatment.

N.D. Century Code § 26.1-36-09 – mental health – applies to group policies or contracts; specifies minimum days of service that must be covered for inpatient treatment, partial hospitalization, and outpatient treatment; includes restrictions on copayments.

N.D. Century Code § 26.1-36-09.7 – metabolic disorders – an insurer, health service corporation, or HMO that provides prescription coverage must cover medical foods and low protein modified food products determined by a physician to be medically necessary for treatment of an inherited metabolic disease up to $3000/year; limited to individuals born after 12/31/62;expires 7/31/99.

Miscellaneous
N.D. Century Code § 26.1-18.1-23 – confidentiality – a combination consumer protection/privilege statute.



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Ohio

Consumer Protection

Access
*Ohio Rev. Code Ann. § 1753.14(A) – standing referrals – applies to health insuring corporations (a HIC is a corporation that, pursuant to a policy, contract, certificate, or agreement, pays for, reimburses, or provides, delivers, arranges for, or otherwise makes available, basic health care services, supplemental health care services, or specialty health care services, or a combination of basic health care services and either supplemental health care services or specialty health care services, through either an open panel plan or a closed panel plan, excluding certain limited liability companies and public entities and insurers that offer only open panel plans and compensate providers directly); HICs that do not allow direct access to all specialists must implement a procedure by which an enrollee may receive a standing referral to a specialist if a PCP determines in consultation with a specialist that an enrollee needs continuing care from a specialist; the treatment plan may limit the number of visits, the period of time for which visits are authorized, or require reports to the PCP.

*Ohio Rev. Code Ann. § 1753.14(B) – specialists as PCPs – HICs must implement a procedure by which an enrollee with a condition or disease that requires specialized medical care over a prolonged period of time and is life-threatening, degenerative, or disabling may receive a referral to a specialist who has expertise in treating the condition or disease for the purpose of having the specialist coordinate the enrollee’s health care, if a PCP determines in consultation with a specialist that the enrollee needs the specialist’s expertise; for both (A) and (B), a determination must be made within 3 b.d. after PCP request and provision of all necessary information;, and a referral must be made within 4 b.d. following a favorable determination (except in cases of rare or unusual conditions for which specialists are difficult to identify); these provisions do not permit OON referral.

*Ohio Rev. Code Ann. § 1751.13(A)(2) – OON providers – when a HIC is unable to provide a covered health care service from contracted provider (includes facilities), it must provide the service from a noncontracted provider at no greater cost to the enrollee than an IN service.

Ohio Rev. Code Ann. §§ 1751.11(D)(3), 1751.13(C)(3), 1751.13(I)(1) – continuity of care – if an enrollee's coverage under a group policy, contract, etc. terminates while the enrollee is receiving inpatient care, coverage must be continued until the earliest of (a) the enrollee's discharge, (b) the determination by the enrollee's attending physician that inpatient care is no longer medically indicated (does not preclude UR), (c) the enrollee's reaching the limit for contractual benefits, or (d) the effective date of any new coverage (subject to certain caveats, e.g., in the case of Medicare plans); all provider contracts must contain provisions requiring providers to continue to provide covered health care services to enrollees in the event of a HIC’s insolvency or discontinuance of operations as needed to complete any medically necessary procedures in process at the time of insolvency or discontinuance (completion of a medically necessary procedure includes the rendering of all covered health care services that constitute medically necessary follow-up care for that procedure) (if an enrollee is receiving inpatient care, in addition to the limits described above, the provisions may limit such required provision of services to the period ending 30 days after insolvency or discontinuance)**; HICs must notify affected enrollees of the termination of a PCP or hospital contract by mail within 30 days and must pay for all covered services rendered to an enrollee by the provider between the date of termination and 5 days after notice is mailed.

Complaints/UR
*Ohio Rev. Code Ann. § 1753.23 – internal technology assessment process – HICs must have an internal technology assessment process that meets all of the following criteria: (A) decisions are made by medical professionals, including physicians; (B) relevant medical evidence is reviewed, including, if available, peer-reviewed medical and scientific literature on the subject, published opinions, action, and other relevant documents of independent research organizations such as NIH, FDA, HCFA, and AHCPR, and published opinions of experts or affected specialty societies; (C) general coverage decisions that exclude drugs, devices, protocols, procedures, or other therapies on the basis that they are not safe or efficacious and remain experimental or investigational are reviewed and updated as new scientific evidence becomes available; (D) a description of the process is made available to participating providers and enrollees upon request; coverage protocols and procedures must include a description of the evidence upon which they are based and the date of adoptionl.

*Ohio Rev. Code Ann. § 1753.24 – independent review – limited to enrollees with terminal conditions; process must meet criteria including: notice to eligible enrollees within 5 b.d. after issuance of denial; review by an independent entity retained by the HIC (either an AMC or an entity that has expert review as its primary function and major source of revenue); selection by the entity of a review panel of at least 3 physicians or other providers expert in the treatment of the enrollee’s condition and knowledgeable about the requested therapy (2 if the enrollee consents), except that a single expert may be substituted if only 1 expert is available; neither the entity nor the experts may have any affiliation with the HIC or the enrollee (except that AMC-affiliated experts are not disqualified because they treat other HIC enrollees); the HIC bears the costs of review; opinions must be rendered within 30 days of the enrollee’s request for review, or 7 days if the enrollee’s physician determines that a therapy would be significantly less effective if not promptly initiated; the standard for opinion is whether there is sufficient evidence to demonstrate that the recommended or requested therapy is likely to be more beneficial to the enrollee than standard therapies; the decision of the majority of experts is binding on the HIC with respect to that enrollee; if the panel is evenly divided the decision must be in favor of coverage.

Ohio Rev. Code Ann. §§ 1751.77-1751.86 – UR standards – UR programs must use documented clinical review criteria that are based on sound clinical evidence and are evaluated periodically to assure ongoing efficiency; a clinical peer (meaning a physician where the services being evaluated are provided by a physician) in the same or similar specialty as typically manages the medical condition or treatment under review must evaluate the clinical appropriateness of adverse determinations subject to appeal; determinations must be issued in a timely manner and a process must be established to ensure that criteria are applied consistently; for prospective or concurrent review only the information necessary for certification may be collected; compensation that contains direct or indirect incentives to make inappropriate review decisions is prohibited.

Ohio Rev. Code Ann. §§ 1751.77-1751.86 – UR procedures – initial determinations must be made within 2 b.d. after obtaining all necessary information, with notices to the provider within 3 b.d. of the determination; the deadlines are reduced to 1 b.d. in the case of concurrent review, and services must be continued until the enrollee has been notified of the determination; HICs must maintain written procedures for expedited review procedures; content of notices is specified, including statement of reasons and instructions for further action; HICs must also have written procedures to address provider failure or inability to provide all necessary information for review; the provider may request reconsideration of an adverse determination; the superintendent may accept accreditation as compliance with standards and procedures.

Ohio Rev. Code Ann. § 1751.86 – UR violations – a violator is deemed to have engaged in an unfair and deceptive act or practice in the business of insurance (penalties are civil fines, suspension or revocation of license).

Disclosure
Ohio Rev. Code Ann. § 1751.13(D) – gag clauses – no HIC contract with a provider may contain a provision that restricts the provider’s ethical and legal responsibility to fully advise enrollees about their medical condition and about medically appropriate treatment options.

Emergency Care
Ohio Rev. Code Ann. § 1753.28 – emergency care – adopts prudent layperson definition; a HIC that provides coverage of basic health care services must cover emergency services without regard to day or time or prior authorization; OON services must be covered if due to circumstances beyond the enrollee’s control the enrollee was unable to utilize a IN ER without serious threat to life or health, a prudent layperson would have reasonably believed that the time required to travel to an IN ER could result in adverse health consequences of the type specified in the definition of emergency medical condition, a HIC representative refers the enrollee to an ER without specifying an IN ER, an ambulance takes the enrollee to an OON ER other than at the direction of the enrollee, the enrollee is unconscious, a natural disaster precludes use of an IN ER, or the network status of a hospital changed and no good faith effort was made to inform enrollees.

Formularies
*Ohio Rev. Code Ann. § 1753.21 – formularies – if an HIC uses a restricted formulary, it must (1) develop such formulary in consultation with and with the approval of a pharmacy and therapeutics committee with a majority of its members being physicians and pharmacists and (2) have a procedure by which an enrollee may obtain, without penalty or additional cost sharing, coverage of a nonformulary drug when the prescriber documents that the formulary alternative has been ineffective in the treatment of the enrollee or has caused or is reasonably expected to cause a harmful or adverse reaction.

Nondiscrimination
*Ohio Rev. Code Ann. § 1751.13(C) – discrimination – a HIC must annually certify to the superintendent that all provider contracts contain a provision requiring the provider to provide health care services without discrimination on the basis of, among other things, a patient’s health status or disability**; does not apply to circumstances where a provider appropriately does not render services due to limitations arising from the provider’s lack of training, experience, or skill, or due to licensing restrictions.

Prohibition on Incentives
Ohio Rev. Code Ann. § 1751.13(D) – financial incentives – no HIC contract with a provider may contain a provision that directly or indirectly offers an inducement to the provider to reduce or limit medically necessary health care services to an enrollee.

Provider Protections
Ohio Rev. Code Ann. § 1751.13(D) – nonretaliation – no HIC contract with a provider may contain a provision that penalizes a provider that assists an enrollee seeking reconsideration of benefit denial or limitation decision, or for principally advocating for medically necessary health services or for providing information or testimony to a legislative or regulatory body.

Ohio Rev. Code Ann. § 1753.05 – economic profiling – a HIC may use economic profiling as a factor in credentialing a provider, however, such profiling must take into consideration the case mix, severity of illness, and age of patients.

Selected Benefit Mandates
Ohio Rev. Code Ann. § 1751.66 – off-label uses of drugs – no HIC that covers prescription drugs may limit or exclude coverage of an approved drug for off-label use if standard conditions are met.

Miscellaneous
Ohio Rev. Code Ann. §§ 1751.13(C), 1751.521 – confidentiality – a HIC must annually certify to the superintendent that all provider contracts contain a provision concerning the confidentiality of health records**; if a HIC requests a release of medical information, the release must clearly explain what information may be disclosed under the terms of the release.

Ohio Rev. Code Ann. § 1701.03 – clinical freedom – corporations formed for the purpose of providing a combination of the professional services are prohibited from controlling the professional clinical judgment exercised within accepted and prevailing standards of practice in rendering care, treatment, or professional advice to an individual patient; utilization review, quality assurance, peer review, or other performance or quality standards are not to be construed as controlling the professional clinical judgment of an individual practitioner.

OH LEGIS 216 (1998):

Ohio Rev. Code Ann. § 1751.12(D)(1) – copayments – copayments must be reasonable and must not be a barrier to the necessary utilization of services by enrollees; HICs may not impose copayment charges on basic health care services that exceed 30% of the total cost of providing any single covered health care service, except for physician office visits, emergency health services, and urgent care services (total cost = HIC cost - any applicable provider discount); an open panel plan may not impose copayments on OON benefits that exceed 50% of the total cost of providing any single covered health care service; HICs may not impose, in any contract year, on any enrollee, copayments that exceed 200% of the total annual premium rate to the enrollees (does not include any reasonable copayments that are not a barrier to the necessary utilization of health care services and are imposed on physician office visits, emergency health services, urgent care services, supplemental health care services, or specialty health care services).

Ohio Rev. Code Ann. § 1751.12(E) – lifetime maximum – HICs may not impose lifetime maximums on basic health care services (defined), but may establish a benefit limit for inpatient hospital services provided pursuant to a policy, contract, etc. for supplemental health care services.

**§ 1751.13(C) does not apply to Medicare managed care contracts, Medicaid, other federal programs, or the coverage of state employees.



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Oklahoma

Consumer/Patient Protections

Access
Okla. Stat. Ann. tit. 63 § 2525.5 – access – MCOs (= a plan that contracts with selected providers and offers financial incentives for enrollees to use participating providers, etc.) must demonstrate that they have adequate access to providers, so that all covered health care services will be provided in a timely fashion.

Complaints/UR
Okla. Admin. Code 310:655-15-7 (HMO licensure rules) – grievances – grievance system must include written acknowledgement within 7 days and final determination within 120 days (subject to extension for delay in obtaining information from non-contracting provider); notice of final determination to advise enrollee of right to file request for assistance with state health agency.

*Okla. Stat. Ann. tit. 36 § 2525.5 – UR – applies to MCOs; state board of health is to issues rules, including rules that requests for nonemergency services must be answered within 5 b.d. of request, and qualified personnel must be available for same b.d. telephone responses to inquiries about medical necessity including continued LOS; contested denials of service by the attending physician in cases where there are not medically agreed upon guidelines shall be evaluated in consultation with physicians of the same or similar specialty or training as the attending physician who is contesting the denial.

Okla. Stat. Ann. § 6558 – UR – applies to all UR; private review agents must submit information to commissioner in connection with application for certification which includes: UR plan describing review standards, mechanisms for provider input, and appeals procedures, assurance of accessibility of representatives during normal business hours, policies and procedures to ensure compliance with laws respecting confidentiality of medical records (also mentioned in § 6562), and procedures to ensure, in connection with rejection of request for evaluation, treatment or procedure, upon request, mailing of a copy of report within 15 days after receipt of request for report.

Disclosure
Okla. Stat. Ann. § 2525.5 – gag clauses – no MCO may engage in the practice of medicine or any other profession except as provided by law or include any provision in a provider contract that precludes or discourages a plan’s providers from informing a patient of the care the patient requires, including noncovered services or advocating on behalf of a patient.

Okla. Admin. Code Code 310:655-17-10 (HMO licensure rules) – gag clauses– UR and QA programs “shall not be construed” to interfere with a physician’s obligation under professional licensure and certification standards to exercise independent judgment; an HMO’s procedures for UR and QA programs may not include the following: (1) any requirement that a physician receive permission from the HMO prior to discussing with a patient the possible need for emergency or urgent care; or (2) any limitation on a physician advising a patient about service or treatment options not provided, arranged or reimbursed by the HMO.

Emergency Care
Okla. Stat. Ann. § 2525.5 – emergency care – MCOs may not require prior authorization for emergency care (definition refers reasonable appearance); out-of-area urgent follow-up care must be covered as long as it is necessitated to stabilize the urgent situation, and complies with plan provisions and federal guidelines.

Nondiscrimination
Okla. Admin. Code 310:655-15-4 (HMO licensure rules) – membership/discrimination – an HMO may not discriminate on the basis of health status, health care needs, or age

Prohibition on Incentives
Okla. Admin. Code 310:655-25-6 (HMO licensure rules) – financial incentives – providers shall not be subject directly or indirectly to any payment for withholding medically necessary health care services.

Provider Protections
*Okla. Stat. Ann. § 2525.5 – physician credentialing – applies to MCOs; when economic considerations are part of the credentialing decision, objective criteria must be used, and plans may not discriminate against enrollees with expensive medical conditions by excluding practitioners with practices containing a substantial number of such patients.

Okla. Admin. Code 310:655-25-6 (HMO licensure rules) – nonretaliation – providers shall not be subject directly or indirectly to any penalty for requesting reconsideration or assisting an enrollee in seeking reconsideration of an HMO decision to deny or limit coverage, advocating before the HMO on behalf of the enrollee, or advising an enrollee about medical care or medically appropriate treatment options, or any prohibition against making factual nonproprietary statements regarding the HMO.

Selected Benefit Mandates
Okla. Stat. Ann. §§ 1-2604, 1-2605 – off-label uses of drugs – individual and group policies and HMO contracts that cover prescription drugs may not exclude coverage of off-label use of FDA-approved drugs in connection with cancer treatment.

Okla. Stat. Ann. § 6060.2 – diabetes – broad application; lists equipment and supplies, and provider services, to be provided, plus provision for state health agency, in consultation with state chapter of national diabetes organization and at least 3 medical directors of health plans, to update annually to include other FDA-approved items; coverage for services of podiatrists and diabetes self-management training also mandated; does not apply to plans designed only for subscribers eligible under Title XVIII of the SSA or similar public plans.

Okla. Stat. Ann. § 6060.5 – reconstructive surgery – must be covered following mastectomy.

*Okla. Stat. Ann. § 6060.6 – dental procedures for certain minor and severely disabled persons – any health benefit plan that provides hospitalization benefits must also cover anesthesia, hospital and ambulatory surgical center, and physician expenses associated with a medically necessary dental procedure provided to a covered person who has a medical emotional condition which requires hospitalization or general anesthesia for dental care and is either severely disabled or age 8 and under.

Okla. Admin. Code 310:655-5-1, 655-15-2 (HMO licensure rules) – comprehensive services – an HMO or prepaid plan must provide or arrange for comprehensive services; definition includes: (4) outpatient services and inpatient hospital services including “short-term rehabilitation services and physical therapy which the HMO expects can result in the significant improvement of an enrollee’s condition within two months”; (6) 20 outpatient visits per enrollee per year as may be necessary and appropriate for short-term evaluative or crisis intervention mental health services, or both; (7) diagnosis, medical treatment and referral services for alcohol or drug abuse or addiction, including detox on an in or outpatient basis and referral for medical or nonmedical ancillary services (but nonmedical services such as voc rehab and employment counseling and prolonged rehab “need not be a part of comprehensive health services”); and (9) home health services.

Miscellaneous
*Okla. Stat. Ann. § 2525.5(B)(4) – confidentiality – MCOs are prohibited from disclosing to employers any medical information about an enrollee without such person’s specific prior authorization.



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Oregon

Consumer/Patient Protections

Access
Or. Rev. Stat. Ann. § 743.845 – OB/GYN – insurers must permit female enrollee to designate a women’s health care provider as PCP or have direct access to a women’s health care provider for an annual exam and pregnancy care.

*Or. Rev. Stat. Ann. § 743.808 – choice of PCP – all insurers that require an enrollee to designate a PCP must permit the enrollee to change PCPs at least 2 times in any 12-month period.

Complaints/UR
Or. Rev. Stat. Ann. § 743.804(3) – grievances – insurers must have a “timely and organized” system that includes an appeal process with 2 levels of review, the second of which is by persons not previously involved in the dispute, and written decisions in plain language justifying appeal determinations; also, § 743.804(8) requires an insurer to give enrollees who have filed grievances detailed information on procedures and information on how to access the complaint line of the Department of Consumer and Business Services.

Or. Rev. Stat. Ann. § 743.807 – UR – process and methodology should be made available to providers upon request; a state-licensed doctor of medicine or osteopathy shall be responsible for all final recommendations regarding the necessity, appropriateness, and site of service; patient or provider with request denied as not medically necessary or experimental shall be provided opportunity for timely appeal before appropriate medical consultant or peer review committee; a provider request for prior authorization of nonemergency services must be answered within 2 b.d. and qualified personnel must be available for same-day telephone responses to inquiries re certifying continued LOS.

Or. Rev. Stat. Ann. § 743.837 – prior authorizations – prior authorization determinations are binding on the insurer if obtained no more than 30 days prior to date of service (if relate to enrollee eligibility, binding if obtained no more that 5 b.d. prior to date of service).

*Or. Rev. Stat. Ann. § 743.829 – clinical decision-making/nonretaliation – all clinical decisions regarding LOS in a health care facility, transfer between levels of care and follow-up care shall be the decision of the treating provider in consultation with the patient, as appropriate; an insurer may not terminate or restrict the practice privileges of a provider solely on the basis of one or more of these clinical decisions.

Disclosure
Or. Rev. Stat. Ann. § 743.804(5) – disclosure (financial incentives, etc.) – insurers must furnish to enrollees (or policyholders for distribution to enrollees) written general information including: disclosure of any risk-sharing arrangements with providers; a summary of procedures for protecting the confidentiality of medical records and other enrollee information; notice of information that is available upon request of an enrollee or prospective enrollee, including rules related to the insurer’s drug formulary, and a description of risk-sharing arrangement with providers consistent with HCFA requirements; upon request of an enrollee, an insurer must provide a written summary of information that may be considered in UR of a particular condition or disease to the extent the insurer maintains such criteria (but doesn’t require an insurer to “advise an enrollee how the insurer would cover or treat that particular enrollee’s disease or condition,” and proprietary review criteria are subject to verbal disclosure only).

Or. Rev. Stat. Ann. § 743.829 – gag clauses/nonretaliation – no insurer may terminate or otherwise financially penalize a provider for (1) communicating with a patient in a manner that is not slanderous, defamatory or intentionally inaccurate concerning the patient’s medical condition, options for treatment, or the provider’s general financial arrangements with the insurer or (2) referring a patient to another provider (does not include allocation of costs for referral services to provider).

Emergency Care
Or. Rev. Stat. Ann. § 743.699 – emergency care – all insurers offering a health benefit plan must provide coverage without prior authorization for emergency screening and stabilization, and emergency services provided by a nonparticipating provider if justified using a prudent layperson standard (also see definition in § 743.801(1), incorporated in disclosure section at § 743.804).

Formularies
Or. Rev. Stat. Ann. § 743.804(4) – non-formulary drugs – insurers that use formularies must have a written procedure for coverage of prescriptions of non-formulary drugs and a written procedure to provide full disclosure to enrollees of any cost sharing or other requirements to obtain drugs and medications no included in the formulary.

Consumer Participation
Or. Rev. Stat. Ann. § 743.817 – all insurers offering managed health insurance must establish a means to provide enrollees, purchasers and providers a meaningful opportunity to participate in the development and implementation of insurer policy and operation through the establishment of advisory panels and consultation with such panels on major policy decisions or other means including meetings with the governing board.

Or. Rev. Stat. Ann. § 743.827 – director of state regulatory agency is to appoint a Health Care Consumer Protection Advisory Committee with fair representation of consumers, providers and insurers to advise the director on implementation and related issues.

Provider Protections
Or. Rev. Stat. Ann. § 743.803 – nonretaliation – no medical services contract may require the provider to agree to deny care to a patient because of a determination that the care is not covered, or to deny referral to another provider for the care, if the patient is informed that the patient will be responsible for payment and the patient nonetheless desires the care or referral; all medical services contracts must provide that a physician may advocate a decision, policy or practice without being subject to termination or penalty “for the sole reason of” such advocacy.

Selected Benefit Mandates
Or. Rev. Stat. Ann. § 743.697 – off-label uses of drugs – policies or contracts that cover prescription drugs must cover off-label uses if the Health Resources Commission determines that the drug is effective for treatment of that indication, with standard qualification about FDA approval.

Or. Rev. Stat. Ann. § 743.726 – metabolic disorders – broad application; includes medical foods.

Miscellaneous
Or. Rev. Stat. Ann. § 743.804(10) – confidentiality – insurers must ensure confidentiality by adopting and implementing written confidentiality policies and procedures, stating expectations in medical services contracts, and affording enrollees the opportunity to approve or deny release of identifiable information, except as required by law.

Or. Rev. Stat. Ann. § 743.821 – enrollee liability – provider contracts must include provision that prohibits provider from billing or otherwise attempting to collect from enrollees amounts owed by insurers (typical of most if not all states).



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Pennsylvania

Consumer/Patient Protections

Access
*Penn. Stat. 40 § 991.2111 – standing referral/specialist as PCP – a managed care plan (= plan that uses a gatekeeper to manage utilization of health care services, integrates financing and delivery of health care services by selective contracting with providers, and provides financial incentives for enrollees to use participating providers) must, among other things, adopt and maintain procedures by which an enrollee with a life-threatening, degenerative or disabling disease or condition may, upon request, receive an evaluation and, plan’s established standards are met, be permitted to receive: (i) a standing referral to a specialist with clinical expertise in treating the disease or condition; or (ii) the designation of a specialist to provider and coordinate the enrollee’s primary and specialty care.

*Penn. Stat. 40 § 991.2117 – continuity of care – if a managed care plan initiates termination of a participating provider  (not for cause), an enrollee has the option of continuing an ongoing course of treatment with that provider for up to 60 days from the date the enrollee is notified by the plan of the termination/pending termination, on IN terms and conditions; a new enrollee may continue an ongoing course of treatment with a nonparticipating provider for a transitional period of up to 60 days from the enrollment date, on IN terms and conditions.

Penn. Stat. 40 § 991.2111 – OB/GYNs – managed care plans must provide direct access to OB/GYN services.

ADA Compliance
*Penn. Stat. 40 § 991.2111 – ADA compliance – a managed care plan must ensure that there are participating health care providers that are physically accessible to people with disabilities and can communicate with individuals with sensory disabilities in accordance with Title III of the ADA.

Complaints/UR
Penn. Stat. 40 § 991.2141 – complaints – complaints may be oral or written; an initial review is to be completed within 30 days of receipt, with written notice within 5 b.d. of the decision; second level review is by a committee consisting of 3 or more individuals who did not participate in the initial review, and 1/3 of whom are not employed by the managed care plan, to be completed within 45 days of receipt of request for such review, with written notice within 5 b.d. of the decision, including procedure for appeal to the state health or insurance agency (note: a grievance refers to a request for reconsideration of a decision concerning medical necessity and appropriateness).

Penn. Stat. 40 § 991.2142 – independent review – enrollee has 15 days from receipt of notice of decision of second level review in which to appeal to the health or insurance agency, as appropriate; the appropriate department will determine whether a violation of the law has occurred and may impose any authorized penalties; the state agencies may communicate with the parties as appropriate to assist in the resolution of a complaint at any time during the complaint process.

Penn. Stat. 40 § 991.2152 – UR/incentives – UR entities must maintain normal business hours and respond to calls that come into an answering service or recording system within 1 business day and communicate prospective UR decisions within 2 b.d. of receipt of all supporting information reasonably necessary to complete the review (1 b.d. for concurrent decisions); protect confidentiality; notify a provider of additional facts or documents required within 48 hours of receipt of a request for review; compensation to any person or entity performing utilization review may not contain incentives for the person or entity to approve or deny payment for the delivery of any health care service; UR that results in a denial of payment must be made by a licensed physician (a licensed psychologist may perform UR for behavioral health care services within the psychologist’s scope of practice and expertise).

Penn. Stat. 40 § 991.2161 – grievances – initial review by person(s) who did not previously participate in decision to deny payment, completed within 30 days of receipt of grievance, with notice within 5 b.d. of decision; second level review by 3 or more persons who did not previously participate, completed within 45 days with notice within 5 b.d. of decision; initial and second level reviews must include a licensed physician or, where appropriate, an approved licensed psychologist; should the enrollee’s life, health, or ability to regain maximum function be in jeopardy, an expedited internal grievance process must be available, with notification of decision to the enrollee and provider within 48 hours of the filing of the expedited grievance.

Penn. Stat. 40 § 991.2162 – independent review – an enrollee or provider with enrollee consent may appeal a denial following completion of the internal grievance process; the state health agency randomly assigns a UR entity (not directly affiliated with the managed care plan); request must be filed with the plan within 15 days of receipt of the final notice of denial; decision must be make by one or more licensed physicians or approved psychologists in active practice or in the same or similar specialty that typically manages or recommends the service being reviewed; written decision within 60 days of filing; the standard of review is “whether the health care service denied by the internal grievance process was medically necessary and appropriate under the terms of the plan”; subject to appeal to court within 60 days of receipt, with rebuttable presumption in favor of decision, but plan must authorize service or pay claim determined to be medically necessary and appropriate whether or not appeal has been filed; all fees and costs (not including attorney fees) are paid by the nonprevailing party if the provider filed, by the managed care plan if the enrollee filed; contracts may provide an ADR system to the external grievance process if the health agency approves the contract, but an ADR system shall not be utilized for any external grievance filed by an enrollee.

Disclosure
Penn. Stat. 40 § 991.2113 – gag clauses – no managed care plan may penalize or restrict a provider from discussing: processes used to deny payment for services, medically necessary and appropriate care with or on behalf of an enrollee, or a plan’s decision to deny payment; contract provisions that so restrict disclosure are void; no managed care plan may terminate a provider for: advocating for medically necessary and appropriate care consistent with a professional standard of care, filing a grievance, or protesting a decision, policy or practice the provider reasonably believes interferes with the provider’s ability to provide medically necessary and appropriate health care.

Penn. Stat. 40 § 991.2136 – disclosure – items for disclosure to each enrollee (and prospective enrollee upon written request) include the following, easily understandable by the layperson: summary of complaint and grievance procedures, including toll-free number and enrollee’s right to designate a representative, notice that emergency services are not subject to prior approval, description of procedures to obtain OON referrals, standing referrals, etc., and a list of information available upon written request (confidentiality protection procedures, process for obtaining non-formulary drugs or drugs for off-label uses, criteria for determinations of experimental status, summary of reimbursement methodologies).

Emergency Care
Penn. Stat. 40 §§ 991.2102, 991.2116 – emergency care – if an emergency provider determines that emergency services (= service provided after sudden onset of condition warranting immediate medical attention as judged by prudent layperson standard) are necessary, the provider shall initiate necessary intervention to evaluate, and stabilize if necessary, without seeking or receiving authorization, and the managed care plan shall pay all reasonably necessary costs; relocation is permitted when the enrollee is stabilized and can be moved without detrimental consequences.

Prohibition on Incentives
Penn. Stat. 40 § 991.2112 – financial incentives – no managed care plan may use any financial incentive to compensate a provider for providing less than medically necessary and appropriate care to an enrollee (does not prohibit a capitated payment or other risk-sharing arrangement).

Provider Protections
*Penn. Stat. Ann. 40 § 991.2121 – provider credentialing – no managed care plan may exclude or terminate a provider from participating in the plan for communicating with or advocating for patients per the gag clauses or for having a practice that includes a substantial number of patients with expensive medical conditions.

Miscellaneous
Penn. Stat. Ann. 40 § 991.2181 – enforcement – state health agency is to make guidelines available concerning requirements different from NCQA standards, and health and insurance agencies are to investigate potential violations and submit an annual report to the legislature; possible penalties include a civil penalty up to $5,000, an injunction, or the requirement of a plan of correction.

Penn. Stat. Ann. 40 § 991.2191 – exceptions – worker’s compensation, peer review, FFS programs operated under Title XIX of SSA (Medicaid).

*Penn. Admin. Code § 9.404 – financial protection of HMO members served through IDSs – health agency’s purpose in reviewing provider reimbursement methodology is to identify methods which may lead to inadequate or poor quality care and to ensure that the HMO and IDS (an entity that assumes some risk) have adequate systems to monitor quality of care and prevent undertreatment, hence reserves the right to require submission of actual rates of payment.

Penn. Stat. 40 § 991.2131 – confidentiality – a managed care plan and a UR entity must adopt and maintain procedures to ensure that all identifiable information regarding enrollee health, diagnosis and treatment is adequately protected and remains confidential in compliance with federal and state laws and regulations and professional ethical standards; does not deny access for internal quality review or outcomes improvement and research, but enrollees must remain anonymous to the greatest extent possible (and provide consent, in the case of the latter).



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Rhode Island

Consumer/Patient Protections

Access
Gen. Laws R.I. §§ 27-18-44, 27-20-31, 27-41-45 – OB/GYNs – for women, annual visit to in-network OB/GYN without referral.

Complaints/UR
Gen. Laws R.I. § 23-17.12-9 – decisions and internal appeals – determinations must be made within 1 b.d. of receipt of all necessary information; on appeals, notice must be given as soon as practical, but no later than 15 days after receipt of required documentation; all initial adverse determinations and first level of appeals not to certify a service ordered by a practitioner must be made by a practitioner with the same licensure status or a licensed physician; the review agent must also line up a qualified professional to review a 2nd level appeal; no physician or reviewer with prior involvement in the case may serve as sole reviewer on appeal, unless there is new information; no appeals physician or other reviewer may be compensated based on upholding an adverse determination; reviewers must comply with confidentiality laws.

RI Admin Rules, Dept. of Health, General § 5.0 – decisions and internal appeals – the process regarding adverse determinations must include provisions to assure that verbal requests are accepted where a provider or patient can demonstrate that a timely response is urgent; that no determination that care is medically inappropriate may be made until there is evidence that a qualified practitioner has spoken with the patient’s attending provider or a designee, if reasonably available; that no employee or other individual rendering an adverse determination may receive any financial incentives based upon the number of denials or approvals made by him/her; that the agency and its employees adhere to all applicable laws protecting the confidentiality of medical records.

Gen. Laws R.I. § 23-27.12-10 – external appeals – when the 2nd level appeal does not reverse an adverse determination, the review agent must provide for external appeal to an unrelated and objective appeal agency selected by the director of the state health department; the review and decision must be based on the medical necessity for the care, treatment or service, and the appropriateness of the service delivery for which authorization has been denied, neutral physicians or dentists must be utilized to make final determinations, payment of the fee must be split between the parties, and the decision is binding but remains subject to judicial review.

RI Admin Rules, Dept. of Health, General § 7.0 – external appeals – to initiate an external appeal, the patient or provider of record must file written notification of appeal with the review agent, with a check for ½ the fee, within 60 days of receipt of notice that the 2nd level appeal has been denied; for expedited appeals, the external agency must make a determination within 2 b.d. (10 b.d. in non-emergency appeals); the review must be based on: (a) the review criteria utilized by the review agent to make the denial; (b) the medical necessity for the care, treatment or service denied; (c) the appropriateness of the service delivery denied, but “in no case shall the external appeals agent be required to authorize services in excess of those which are provided for in any contract.”

Disclosure
Gen. Laws R.I. § 23-17.13-3 – disclosure – director is responsible for sorting disclosure items into mandatory versus upon request categories (items include “written disclosure of the enrollee’s right to be free from discrimination by the health plan and the right to refuse treatment without jeopardizing future treatment,” and vague disclosure of financial arrangements).

R.I. Admin. Rules § 4.0 – disclosure – mandatory list includes summary statement of plan’s confidentiality policy, statement of right to be free of discrimination and to refuse treatment without jeopardizing future treatment, and vague disclosure of financial arrangements; upon request list consists of (a) a schedule of revenues and expenses including direct service ratios and costs for specific categories of services and (b) complaint, adverse decision, and prior authorization statistics.

Gen. Laws R.I. §§ 23-17.13-3(c)(5),  23-17.14—16, 27-41-14.1 – gag clause/nonretaliation provision – a health plan/hospital/HMO may not refuse to contract with or compensate an otherwise eligible provider solely because that provider in good faith communicated with his or her patient(s) regarding the products and/or services of the insurer/hospital/HMO as they relate to the needs of the provider’s patients.

Prohibitions on Incentives
Gen. Laws R.I. § 23-17.13-3 – financial incentives – health plans may not enter into compensation agreements with any provider of covered services or pharmaceutical manufacturer pursuant to which specific payment is made directly or indirectly and an inducement or incentive to reduce or limit services, reduce LOS or use of alternative treatment settings or use of a particular medication with respect to an individual patient (but capitation agreements and similar risk sharing arrangements are not prohibited).

Gen. Laws R.I. § 23-17.13-3(c)(12) – risk-sharing – if a plan places a provider or provider group at financial risk for services not provided by the provider/group, the plan must require that such provider/group has met all appropriate standards of the department of business regulation.

Consumer Participation
Gen. Laws R.I. § 23-17.13-3(c)(4) – subscriber input – all health plans must establish a mechanism under which local subscribers provide input into the plan’s procedures and processes regarding the delivery of health care services.

Provider Protections
*Gen. Laws R.I. § 23-17.13-3(c)(6), (8) – economic profiling – any economic profiling of providers must be adjusted to recognize case mix, severity of illness, age and other features of a practice that may account for higher or lower than expected costs; health plans may not discriminate against providers solely because they treat a substantial number of patients who require expensive or uncompensated care.

Gen Laws. R.I. §§ 27-18-45, 27-20-32, 27-41-46 – nonretaliation – insurers are prohibited from retaliating against a provider for reporting or preparing to report a violation of law or contract by the insurer; criminal and civil penalties specified, and civil actions by the providers for injunctive relief and damages are also authorized.

Selected Benefit Mandates
*Gen. Laws R.I. §§ 27-18-36.2, 27-20-27.2, 27-41-41.2 – cancer clinical trials – insurers must cover new cancer therapies provided in the context of an approved Phase III or IV clinical trial (also patient care costs under Phase II clinical trials, until 12/31/99 (this period may be extended under S245).

Gen. Laws R.I. §§ 27-55-1 – 27-55-3 – off-label uses of drugs – only applies to the treatment of cancer; usual qualifications.

Gen. Laws R.I. §§ 27-18-38, 27-20-30, 27-41-44 – diabetes – insurers must cover FDA-approved equipment and supplies and self-management education.

Miscellaneous
Gen. Laws R.I. § 23-17.13-3 – certification of plans – requires the director of the health agency to provide standardized definitions for terms such as “medical necessity,” with caveat that no definition shall be construed to require a health care entity to add a benefit or increase the scope of a benefit under any contract (and definitions adopted are more explanatory than prescriptive, see R.I. Admin. Rules R23-17.13-CHP, Appendix A).



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South Carolina

Consumer/Patient Protections

Access
*S.C. 1998 Sess. Laws S.B. 310 (to be codified at § 38-71-1730 – continuity of care – an employee, spouse or dependent receiving treatment for an illness covered under a closed panel health plan may continue to receive services from a provider who elects to discontinue participation for up to 90 days (or until the anniversary date of the plan, if earlier); does not apply to Medicaid plans.

S.C. 1998 Sess. Laws H.B. 3889 (to be codified at § 38-33-325) – OB/GYN – HMOs and other MCOs must permit two annual visits to an IN OB/GYN, plus authorization for continuing treatment resulting from OB/GYN complications so diagnosed must come directly from the HMO.

Disclosure
S.C. 1998 Sess. Laws S.B. 310 (to be codified at § 38-71-1740) – gag clauses – network plans’ provider contracts may not limit the provider’s ability to discuss treatment options and UR decisions with patients.

Emergency Care
S.C. 1998 Sess. Laws H.B. 3985 (to be codified at §§ 38-71-1510 – 38-71-1550) – emergency care – adopts prudent layperson definition of emergency medical condition; provides that appropriate intervention must be initiated to stabilize any emergency medical condition before requesting authorization for treatment from an MCO (definition linked to selective contracting with providers); an MCO that covers emergency medical care services must pay providers for services provided to a patient who presents in an emergency medical condition, and may not retrospectively deny or reduce payments except in cases of fraud and other limited circumstances.

MCO Protections
S.C. 1998 Sess. Laws S.B. 310 (to be codified at § 38-71-1740) – vicarious liability – each party to a managed care participating provider agreement is responsible for the legal consequences and costs of his own acts or omissions, or both, and is not responsible for the acts or omissions, or both, of the other party.



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South Dakota

Consumer/Patient Protections

Access
*1999 S.D. Sess. Laws S.B. 236, West’s No. 13 – OON providers – in any case where a health carrier (inclusive definition) has an insufficient number or type of participating provider to provide a covered benefit, the carrier must ensure that the covered person obtains the benefit at no greater cost than if the benefit were obtained IN, or make other arrangements acceptable to the director of the Division of Insurance.

*1999 S.D. Sess. Laws S.B. 236, West’s No. 13 – continuity of care – if a provider is terminated without cause or chooses to leave the network, upon request the carrier must permit the covered person to continue an ongoing course of treatment for 90 days following the effective date of contract termination (on contract terms).

*1999 S.D. Sess. Laws S.B. 236, West’s No. 13 – access plan – carriers must have an access plan that, among other things, describes the carrier’s system for ensuring the coordination and continuity of care for covered persons referred to specialty physicians or using ancillary services and the plan for providing continuity of care in the event of contract termination of a provider or discontinuance of the carrier’s operations.

Complaints/UR
S.D. § 58-18-65 – grievances – applies to managed care plans; reviews of grievances involving reviews of practitioner authorized or provided services must be conducted by a similarly licensed peer who scope of practice includes the services being reviewed.

S.D. Admin. R. 20:06:34:01 – 20:06:34:08 – grievances – a grievance may be submitted within 3 years of the act giving rise to it; for a standard review, a written decision must be provided within 30 days following the request for review; a request for expedited review may be submitted orally or in writing, notification of the decision must be given as expeditiously as possible but in any event within 72 hours after review is commenced, and if the expedited review is a concurrent review, the service must be continued without liability to the covered person until notice is given of the determination; an appeal from an expedited review is conducted as a standard review.

1999 S.D. Sess. Laws H.B. 1012, West’s No. 74 – UR – applies to any carrier that provides or performs UR; UR programs must use documented clinical review criteria that are based on published sound clinical evidence and evaluated periodically to ensure ongoing efficacy; any adverse determination must be evaluated by appropriately licensed and clinically qualified providers; compensation may not be based on the quantity or type of adverse determinations rendered or include other incentives to render inappropriate review decisions; UREs must make initial determinations within 2 b.d. of obtaining all necessary information (1 b.d. for concurrent reviews) and give notice by telephone within 24 hours of decision (with no liability until notice in case of concurrent review); requirements for notices include statement of clinical rationale.

Disclosure
1999 S.D. Sess. Laws S.B. 235, West’s No. 137 – formularies – any carrier offering a managed care plan must disclose to prospective enrollees a description of any drug formulary provisions in the plan and the process for obtaining a copy of the current formulary upon request.

1999 S.D. Sess. Laws S.B. 235, West’s No. 137 – conflicts of interest – any carrier offering a managed care plan must disclose to prospective enrollees the existence of any financial arrangements or contractual provisions with review companies or providers that limit the services offered, restrict referral, or treatment options, among other things.

Emergency Care
1999 S.D. Sess. Laws H.B. 1013, West’s No. 88 – emergency care – carrier must cover services necessary to screen and stabilize and may not require prior authorization if prudent layperson acting reasonably would have believed that emergency medical condition existed (prudent layperson standard also applies to use of OON provider).

Formularies
1999 S.D. Sess. Laws S.B. 235, West’s No. 137 – formularies – any carrier offering a managed care plan that uses a formulary must have a process for requesting an exception to the formulary and instructions on making such a request.

Consumer Participation
S.D. §§ 58-41-23, 58-41-24 – governing body – after an HMO has been authorized for 1 year, at least 20% of the governing body must be composed of consumers (laypeople) who are enrollees; the governing body shall establish a mechanism to afford enrollees an opportunity to express their opinions in matters of policy and operation.

Provider Protections
1999 S.D. Sess. Laws S.B. 236, West’s No. 13 – nonretaliation – carriers may not prohibit or penalize providers for discussing treatment options with covered persons, advocating on their behalf within the UR or grievance processes or in good faith reporting to governmental authorities any act or practice that jeopardizes patient health or welfare.

Miscellaneous
S.D. §§ 58-18-80, 58-38-40, 58-41-115 – mental health parity – group insurance policies and HMO contracts must cover biologically-based mental illnesses on the same terms as other illnesses.

S.D. §§ 58-41-33, 58-41-36, 58-41-37 – DTPA – trade practice laws apply to HMOs; other provisions of HMO Act address unfair and misleading evidence of coverage, deceptive advertising, etc.



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Tennessee

Consumer/Patient Protections
Note: Consumer Health Care Advocacy Act applies to “managed health insurance issuer” (= insurer that restricts reimbursement to a defined network or is regulated under Title 56 or an entity that accepts financial risk for services not provided by its owners/managers or employees).  Also: “This chapter shall not be construed to create a cause of action or remedy that would not exist in the absence of this section, except for the purposes of enforcing the prohibition set forth herein.”

Access
1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – access/network adequacy – issuers must maintain adequate networks, including adequate number of specialist and sub-specialists within a reasonable distance or travel time; procedures for making IN and OON referrals must include a process for expediting the referral process when indicated by a medical condition and a provision that referrals approved by the plan cannot be retrospectively denied except for fraud or abuse.

*1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – continuity of care – in the case of a terminating or terminated (without cause) provider, the issuer must allow an enrollee who is under active treatment for a particular injury or sickness to continue to receive covered benefits from the treating provider for a period of 120 days from the date of notice of termination, if the provider/facility agrees to continuation of the terms of the provider’s agreement with the issuer; related provisions allow pregnant women to receive treatment through postpartum care and inpatients to remain at a facility until discharge.

*1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – specialists as PCPs – issuers must develop policies that permit approved specialists and subspecialists to serve as PCPs for enrollees with life-threatening, chronic, disabling or degenerative conditions or diseases which require ongoing specialty care; denials of specialists as PCPs must be appealable. (exp. 7/1/2001)

*1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – standing referrals – issuers must develop policies for the provision of standing referrals to enrollees with chronic and disabling conditions which require ongoing specialty care authorized by the PCP, for a period not to exceed 12 months. (exp. 7/1/2001)

*1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – OON providers – in any case where the issuer has no participating providers to provide a covered benefit, the issuer must arrange for a referral to a provider with the necessary expertise, at no greater cost to the covered persons than for IN provider.

1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – OB/GYN – one annual preventive visit to an OB/GYN without referral. (exp. 7/1/2001)

1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – eye care – for plans that cover eye or vision care, one annual preventive visit to an IN ophthalmologist or optometrist, and any necessary follow-up or emergency care, without referral. (exp. 7/1/2001)

 Complaints/UR

1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – grievances/formularies – enrollees must be permitted to file a grievance in connection with removal of a drug from a formulary within 60 days of notice to the provider of the removal decision; if the grievance is filed within 10 days after the enrollee knows or should have known of the removal, the enrollee may continue to receive the drug until completion of the grievance process; doesn’t apply to a removal due to patient care/safety concerns; doesn’t apply to TennCare. (exp. 7/1/2001)

Tenn. Code Ann. § 56-32-210 – grievances – applies to HMOs (but not TennCare); procedure must include statement of right to contact commissioner’s office for assistance at any time, with address and phone number; review committee cannot include person who made decision under appeal or previously handled grievance; review must be held within 10 b.d. of receipt of grievance, with possibility of 10 b.d. extension; covered person must be notified of right to submit written material and have assistance of uninvolved member of staff; decision must be made within 5 b.d. and content of notice is specified; HMO must have expedited procedure.

Tenn. Code Ann. § 56-32-210 – independent review (commissioner) – applies to HMOs (but not TennCare); after receiving inivital decision by grievance committee (or decision upon reconsideration), covered person may seek review by submitting written request to the commissioner/designee and HMO within 30 days of final decision; the results of the review may not be admitted as evidence in any judicial proceeding.

1998 Tenn. Sess. Laws S.B. 3279 (Tenn. Code Ann. § 56-32-?) – independent review – every HMO must provide an independent review process to examine coverage decisions for enrollees where, among other criteria, coverage has been denied on grounds of medical necessity (not because the plan considers the service experimental) for what would otherwise be a covered benefit, internal appeals procedures have been exhausted, and the amount at stake is at least $1000; the enrollee must file a request with the HMO no later than 60 days after receipt of  notification of this option and must pay $100 toward costs; the IRO must submit its determination to the parties within 30 days of receipt of the request for review, except that for life-threatening conditions, as determined by the enrollee’s physician, determinations must be submitted within 7 days; deadline may be extended up to 5 b.d. at expert’s request to consider additional information; determinations must be based on the applicable coverage documents and may not expand the contractually agreed upon coverage; determinations are binding on the plan and enrollee; conflict of interest rules established for IROs.

Disclosure
1998 Tenn. Sess. Laws H.B. 2949 (Tenn. Code Ann. § 56-32-?) – gag clauses/nonretaliation – an issuer may not take retaliatory action against a provider for (1) communication with an enrollee with respect to health status, health care or treatment options in good faith and within the provider’s scope of practice; (2) disclosure of accurate information concerning coverage of a service or treatment; or (3) expression of personal disagreement with an issuer’s coverage decision, or assistance to an enrollee pursing a grievance, provided that it is clear the provider is acting in a personal capacity.

Tenn. Code Ann. § 56-7-2349 – gag clauses – MCOs, HMOs and PPOs may not restrict medical personnel regarding informing patients of alternative medical care, treatments, programs or pharmaceuticals which may be available, regardless of whether covered by the plan (does not really live up to title of “Patients’ Right to Truth Act of 1996”); civil penalties (fines) specified.

Tenn. Code Ann. § 56-7-122 – incentive disclosure – health plans may not prohibit providers from disclosing to patients the existence of financial arrangements that reward the provider for reducing or limiting the range and amount of medically necessary and appropriate services.

Emergency Care
Tenn. Code Ann. § 56-7-2355 – emergency care – reasonable expectations standard for emergency medical condition; plans may not deny coverage if symptoms indicate that an emergency medical condition could exist, without regard to prior authorization or network status of provider; no subsequent rescission or modification of authorization absent fraud, etc.

Managed Benefits Include
Tenn. Code Ann. § 56-7-2352 – off-label uses of drugs – standard terms.

Tenn. Code Ann. § 56-7-2504 – ABMT for cancer – if TennCare covers, than other insurers must offer coverage (may be at additional cost).

Tenn. Code Ann. § 56-7-2505 – PKU – must cover.

Tenn. Code Ann. § 56-7-2605 – diabetes – supplies, education, etc. must be covered when prescribed by a physician as medically necessary.

Tenn. Code Ann. § 56-7-2601 – mental illness – insurers must offer mental health coverage (except under individual policy renewal), and group policies provide specified benefits if the plan provides mental health benefits.

Miscellaneous
1998 Tenn. Sess. Laws H.B. 2949 – POS option – among those states that mandate a POS option; doesn’t apply to TennCare.



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Texas

Consumer/Patient Protections
Note: certain provisions of state law were ordered severed in Corporate Health Ins. Inc. v. Texas Dept. of Ins (S.D. Tex. 1998), currently on appeal.

 Access
*Tex. Ins. Code Ann. art. 3.70-3C(sec. 8)(b) (insurers/PPOs), art. 20A.09(f) (HMOs) – OON providers – if services are not available through preferred providers within the service area, non-preferred providers must be reimbursed at the same percentage level as preferred providers had the enrollee been treated by them; if medically necessary covered services are not available through IN providers, the HMO, on the request of a network provider, within a reasonable period, must allow referral to a OON provider and reimburse the OON provider at the usual and customary or an agreed rate, and the evidence of coverage must provide for a review by a specialist of the same or a similar specialty as the provider to whom referral is requested before the HMO may deny a referral.

*Tex. Ins. Code Ann. art. 20A.09(g) – specialists as PCPs – an enrollee with a chronic, disabling, or life-threatening (=a disease or condition for which the likelihood of death is probable unless its course is interrupted) illness may apply to the HMO’s medical director to use a nonprimary care physician specialist as the enrollee’s PCP; to be eligible the specialist must meet the HMO’s requirements for PCP participation and be willing to accept the coordination of all the enrollee’s health care needs (per (h), a denial of a request is appealable).

Tex. Ins. Code Ann. art. 21.53D – OB/GYNs – health plans must permit women to select, in addition to a PCP, a OB/GYN to provide services within the scope of practice of the specialty; plans must permit a woman direct access to the OB/GYN selected, e.g., no PCP referral or preauthorization requirements.

*Tex. Ins. Code Ann. art. 3.70-3C(sec. 4)(b), art. 20A.18A(c) – continuity of care – each contract between an insurer/HMO and provider must provide that termination (except for incompetence or unprofessional behavior) does not release the provider from the generally recognized obligation to treat the enrollee nor release the insurer/HMO from the obligation to reimburse the provider at the preferred provider/contract rate if, at the time of termination, the insured has special circumstances (identified by the treating physician or provider requesting permission to continue treatment, based on a reasonable belief that discontinuing care could cause harm to the patient) such as a disability, acute condition, or life-threatening illness or is past the 24th week of pregnancy and is receiving treatment in accordance with the dictates of medical prudence; obligation imposed on insurer/HMO does not extend beyond the 90th day from the effective termination date (9 months in the case of an enrollee who has been diagnosed with a terminal illness; through delivery and follow-up in the case of pregnancy).

*Tex. Ins. Code Ann. art. 20A.09(a)(4) – rehabilitation services – if the evidence of coverage provides benefits for rehabilitation services and therapies, the provision of those services that, in the opinion of a physician, are medically necessary may not be denied, limited, or terminated if they meet or exceed treatment goals for the enrollee; for a physically disabled person, treatment goals may include maintenance of functioning or prevention of or slowing of further deterioration.

Complaints/UR
Tex. Ins. Code Ann. art. 3.70-3C(sec. 7), art. 20A.14(j) – nonretaliation – insurers/HMOs are prohibited from retaliating against enrollees, etc. because they file complaints against insurers/HMOs or appeal decisions.

Tex. Ins. Code Ann. art. 20A.12 – complaints – complaint means (§20A.02(f)) any dissatisfaction expressed orally or in writing to the HMO with any aspect of the HMO operation but is not a misunderstanding that is resolved promptly by appropriate information (if the complaint is made orally, the complainant is sent a one-page form to fill out); the total time for acknowledgement, investigation, and resolution of a complaint may not exceed 30 days after the HMOs receipt of a written complaint or form; complaints concerning emergencies or denials of continued stays for hospitalization must be concluded in accordance with the medical immediacy of the case not to exceed 1 b.d. from receipt of the complaint; the content of response letter is specified; records have to be maintained for 3 years and may be reviewed by TDI during any investigation.

Tex. Ins. Code Ann. art. 20A.12 – internal appeals – the appeals process must be completed not later than the 30th day after receipt of a request for appeal, except that complaints concerning emergencies or denials of continued stays for hospitalization must be concluded in accordance with the medical immediacy of the case not to exceed 1 b.d. from receipt of the request; the appeal panel must be composed of equal numbers of HMO staff, providers with experience in the area of care, and enrollees who are not HMO employees (plus a specialist in the appropriate field if specialty care is in dispute), all with no previous involvement in the disputed decision; the content of response letter is specified and must include the toll-free number and address for TDI; per art. 20A.12A, independent review provisions for UROs also apply to HMOs (severed).

Tex. Ins. Code Ann. art. 21.58A – UR/standards – personnel must be appropriately trained and qualified, and those who obtain medical information must be MDs, nurses, PAs, or health care providers qualified to provide the requested service; a URO may not compensate, condition employment, or evaluate employees or agents, or set performance standards, based on the volume of adverse determinations, reductions or limitations on LOS, benefits, services or charges or the number or frequency of telephone calls or other contacts with providers or patients, which are inconsistent with art. 21; UROs must utilize written medically acceptable screening criteria and review procedures which are established and periodically evaluated and updated with appropriate involvement from physicians, including practicing physicians, and other providers; UR decisions must be made in accordance with currently accepted medical or health care practices, taking into account special circumstances of each case that may require deviation from the norm stated in the screening criteria; screening criteria must be objective, clinically valid, compatible with established principles of health care, and flexible enough to allow deviations from the norms when justified on a case-by-case basis; denials must be referred to an appropriate MD or other health care provider to determine medical necessity; criteria must be available for commissioner review but not subject to open records law; UROs must have a complaint system with a procedure that includes written response within 30 days.

Tex. Ins. Code Ann. art. 21.58A – UR/procedure – notification of a determination must be made to the enrollee, the enrollee’s representative, or the enrollee’s provider of record not later than 2 b.d. after the receipt of all information necessary to complete the review; the content of a notice of an adverse determination is specified and must be provided within 1 b.d. by telephone or fax (3 b.d. in writing), or within the time appropriate to the circumstances relating to the delivery of the services and the condition of the patient, but in no case to exceed 1 hour when denying poststabilization care subsequent to emergency treatment (notice to provider).

Tex. Ins. Code Ann. art. 21.58A – UR/appeal – appeal decisions must be made by a physician (or a specialty provider if the requesting provider within 10 b.d. sets forth in writing good cause); the URO must have an expedited appeal procedure for emergency care denials and denials of continued stays for hospitalized patients, conducted by a provider who has not previously reviewed the case and is of the same or similar specialty as typically manages the medical condition, procedure or treatment under review, to be completed no later than 1 b.d. from receipt of all necessary information; written notification of the determination must be given as soon as practical but in no case later than 30 days after receipt of the appeal; the content of a notice of adverse determination is specified; in a circumstance involving an enrollee’s life-threatening condition, the enrollee is entitled to an immediate appeal to an independent review organization and is not required to comply with procedures for internal appeal (severed).

Tex. Ins. Code Ann. art. 21.58A(8) – UR/confidentiality – a UR agent must preserve the confidentiality of individual medical records to the extent required by law and may not disclose or publish individual medical records, personal information, or other confidential information about a patient obtained in the performance of UR without the prior written consent of the patient or as otherwise required by law.

Tex. Ins. Code Ann. art. 21.58A(6A), art. 21.58C – UR/independent review – the URO pays; the commissioner is to promulgate standards and rules for independent review organizations addressing standards, timeliness, confidentiality, qualifications, etc. (severed)

Tex. Ins. Code Ann. art. 21.58A(9) – UR/violations – if the commissioner determines that any person or entity conducting UR is in violation of the UR article, the commissioner may impose sanctions, issue a cease and desist order, or assess administrative penalties.

Tex. Ins. Code Ann. art. 21.58A(14) – UR/application – employee welfare benefit plans as defined in ERISA are not covered; the Texas Medicaid Program and other programs of the state medical assistance are not generally subject to art. 21.58A, but HMOs (including those contracting with the state Medicaid managed care program) are covered if they perform UR, except that they need not be separately certified as UR agents.

Tex. Ins. Code Ann. art. 20A.12A – agency review – any person may report an alleged violation to TDI; the commissioner must investigate within 60 days after receipt of the complaint and all information necessary to determine compliance.

Disclosure
*Tex. Ins. Code Ann. art. 20A.11A(b) – access to information – each certified HMO and approved nonprofit health corporation must establish procedures to provide access to a member handbook and the complaint and appeals process to an enrollee who has a disability affecting the enrollee’s ability to communicate or to read (similar provision requires translation into the language of any group comprising 10% or more of an HMO’s enrollees).

Tex. Ins. Code Ann. art. 3.70-3C(sec. 7), arts. 20A.14(i), 20A.18A – gag clauses – an insurer/HMO may not prohibit, attempt to prohibit, or discourage a physician or provider from discussing with or communicating to a current, prospective, or former patient or his/her designee, information or opinions regarding the patient’s health care or the provisions or services of the plan as they relate to the medical needs of the patient.

Tex. Ins. Code Ann. art. 20A.09 – disclosure – the evidence of coverage is to contain, among other things, notice of the right to go to a OON provider under certain circumstances or request a specialist as PCP.

Emergency Care
Tex. Ins. Code Ann. art. 3.70-3C(sec. 1)(1), (sec. 5) (insurers), art 20A.02(g), 20A.04 (HMOs), art. 21.58A (UROs) – emergency care – adopts prudent layperson definition; if the enrollee cannot reasonably reach a preferred provider, an insurer must reimburse emergency services that are required by law/necessary at the preferred level until the enrollee can reasonably be expected to transfer (art. 3.70-3C(5)); an HMO’s application for a certificate of authority must include documentation demonstrating that the HMO will pay for emergency care services from non-network providers at the negotiated or usual and customary rate, and that the plan will cover any evaluation required by law and any  necessary emergency care services, and HMOs are required to approve or deny coverage of poststabilization care as requested by a treating provider within the time appropriate to the circumstances, but in no case later than one hour from time of request (20A.04(a)(16)).

Prohibition on Incentives
Tex. Ins. Code Ann. art. 3.70-3C(sec. 7), art. 20A.14(l) – incentive prohibition – insurers/HMOs are prohibited from using any financial incentive or making any payment to a provider which acts directly or indirectly as an inducement to limit medically necessary services; the use of capitation as a method of payment is not prohibited.

HMO Liability
Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 – scope – applies to HMOs and other “managed care entities,” meaning any entity that delivers, administers, or assumes risk for health care services with systems or techniques to control or influence the quality, accessibility, utilization, or costs and prices of such services to a defined enrollee population, but does not include an employer acting on behalf of its employees or a licensed pharmacy.

Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 – direct liability – a MCE has a duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an enrollee proximately caused by its failure to exercise ordinary care.

Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 – vicarious liability – a MCE is also liable for damages for harm to an enrollee proximately caused by health care treatment decisions made by its (1) employees, (2) agents, (3) ostensible agents, or (4) representatives who are acting on its behalf and over whom it has the right to exercise influence or control or has actually exercised influence and control which result in the failure to exercise ordinary care; the appearance of a person’s name on a listing of approved providers is not in itself sufficient for a finding that the person belongs in one of these categories.

Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 – defenses – it is a defense that (1) neither the MCE nor any of its employees, etc., controlled, influenced, or participated in the health care treatment decision and (2) the MCE did not deny or delay payment for any treatment prescribed or recommended by a provider; also, the law creates no obligation to provide treatment which is not covered by the MCE’s health care plan; laws prohibiting corporate entities from practicing medicine may not be asserted as a defense; in addition, as a general rule, an enrollee must exhaust appeals and reviews instituting an action.

Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 – nonretaliation – MCEs are prohibited from removing or refusing to renew providers for advocating for appropriate and medically necessary (=meeting the standard for health care services as determined by providers in accordance with prevailing practices and standards of the medical profession and community) health care for enrollees. (severed)

Provider Protections
*Tex. Ins. Code Ann. art. 3.70-3C(sec. 3)(h) (insurers), art. 20A.18A(h) – profiling – an economic profile must be adjusted to recognize the characteristics of a physician’s or health care provider’s practice that may account for variations from expected costs.

Tex. Ins. Code Ann. art. 3.70-3C(sec. 7) (insurers), arts. 20A.14, 20A.18A – nonretaliation – insurers/HMOs are prohibited from retaliating against providers because they (on behalf of enrollees) reasonably file complaints against or appeal decisions of the insurers/HMOs or communicate with patients/designees pursuant to the gag clauses.

Selected Benefit Mandates
Tex. Ins. Code Ann. arts. 21.53D, 21.53G – diabetes – health care benefit plans (broad definition) must provide coverage consistent with minimum standards to be adopted by the commissioner in consultation with the Texas Diabetes Council; a plan that providers benefits for the treatment of diabetes and associated conditions must cover equipment, supplies, and self-management training programs, including new treatment modalities upon approval by the FDA.



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Utah

Consumer/Patient Protections

Access
Utah Code § 31A-8-501 – OON providers – HMOs must pay for covered services rendered by an independent provider if the enrollee lives within 30 paved road miles and the hospital is located in a county with a population density of less than 100 people per sq. mile (referrals to OON providers).

Utah Code § 31A-8-105.5 – OB/GYNs – HMOs must permit at least one exam per year from an IN OB/GYN without prior authorization (also disability insurers, per § 31A-22-624).

Complaints/UR
*Utah Admin. Code R. 590-76 – medical necessity – defined in HMO regulation; definition specifies that it is determined by both the PCP and if requested by the HMO, other competent medical authority designated by the HMO and at its expense; also, “medical necessity shall be determined according to generally accepted principles of good medical practice in the community.”

Utah Admin. Code R. 590-76 – grievances – HMO medical director or physician designee must review all grievances of a medical nature; grievances must be answered in writing within 30 days of submittal.

Disclosure
Utah Code § 31A-4-106 – gag clauses – it is unlawful for any insurer or person to enter into a contract that limits a provider’s ability to advise patients fully about treatment options or other issued affecting their health care.

Emergency Care
Utah Admin. Code R. 590-76 – emergency care – no HMO contract or certificate may limit the coverage of emergency services in the service area to affiliated providers only.

Nondiscrimination
Utah Admin. Code R. 590-76 – pre-existing conditions/discrimination – HMO pre-existing condition clauses limited to 1 year, and other limits imposed; also, coverage may not be canceled or terminated on the basis of the status of the enrollee’s health nor on the fact the enrollee has exercised rights under the complaint system.

Utah Admin. Code R. 590-76 – nondiscrimination – HMOs are prohibited from “unfairly” discriminating against enrollees/applicants on the basis of, among other things, frequency of utilization of services, but doesn’t prohibit underwriting in accordance with relevant actuarial data.

Selected Benefit Mandates
Utah Code § 31A-22-623 – metabolic diseases – mandated coverage of medical foods, etc. for inherited metabolic diseases.



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Vermont

Consumer/Patient Protections
Note: Rule 10.100 applies to “managed care plans”; the key criterion is creation of incentives for members to use selected providers.

Access
*Vt. Stat. Ann., tit. 18 § 9414(b) – access/quality – MCOs shall assure that services provided to members are consistent with prevailing professionally recognized standards of medical practice and have procedures to assure availability, accessibility, and continuity of care, and identification, evaluation, and resolution of problems in administration and delivery (administrative sanctions authorized).

*Vt. Stat. Ann., tit. 8 § 4089j – ombudsperson – creates an office charged with assisting consumers in understanding their rights and responsibilities, identifying, investigating and resolving complaints on behalf of consumers and assisting them in filing and pursuing complaints and appeals, and promoting the development of citizen and consumer organizations; also has discretion to pursue administrative, judicial and other remedies on behalf of consumers.

Vt. Reg. R. 10.203(J) – access – time travel and waiting time standards specified.

*Vt. Reg. R. 10.203(J) – continuity of care – new members with life-threatening, disabling or degenerative conditions must be allowed to continue to see their previous OON providers who meet plan terms for 60 days from the date of enrollment or until accepted by a IN provider, whichever is shorter; members with life-threatening, disabling or degenerative conditions must be allowed to continue to see their providers who have been removed from the network without cause for 60 days from the date of termination/nonrenewal or until accepted by an IN provider, whichever is shorter (parallel pregnancy provisions).

*Vt. Reg. R. 10.203(J) – standing referrals – a plan must establish policies and procedures through which a member with a condition that requires ongoing specialty care may obtain a standing referral (=a referral that authorizes a series of visits for either a specific time period or number of visits pursuant to a treatment plan developed by the PCP, specialist, plan, and member) to a network specialist, subject to UR.

*Vt. Reg. R. 10.203(J) – specialists as PCPs – a plan must establish policies and procedures through which a member with a life-threatening condition, disabling or degenerative condition that requires specialized medical care over a prolonged period of time may receive a referral to an IN specialist/specialized facility, who must be responsible for and capable of providing and coordinating the member’s primary and specialty care, with the authority of a PCP, subject to UR.

Vt. Reg. R. 10.203(J) – OON providers – a plan must ensure that members may obtain referrals to OON providers when the plan does not have a provider with appropriate training and experience to meet particular health care needs IN, subject to UR (in which case the plan bears any additional costs).

 Complaints/UR
*Vt. Reg. R. 10.103 (definitions) – medical necessity – “medically-necessary care” is a defined term; medically-necessary care “must be consistent with generally accepted practice parameters as recognized by health care providers in the same of similar general specialty as typically treat or manage the diagnosis or condition, and (1) help restore or maintain the member’s health; or (2) prevent deterioration of or palliate the member’s condition; or (3) prevent the reasonably likely onset of a health problem or detect an incipient problem.”

Vt. Stat. Ann., tit. 8 § 4089f – independent external review – an insured who has exhausted all internal review procedures has the right to an independent external review of a decision to deny, reduce or terminate coverage or deny payment for a service, provided the amount at stake is at least $100 and the decision is based on medical necessity, a limitation on selection of a provider, a finding that a treatment is experimental, investigational or an off-label use of a drug, or a pre-existing condition clause; the insured must pay a filing fee of no more than $25 (subject to reduction or waiver in hardship cases), with the plan paying all other costs, and the insured is protected from retaliation for filing; the decision is binding on the plan; the Medicaid program and services to inmates are not covered.

Vt. Reg. R. 10.203(B) – UR/structure – plans must have mechanisms: for assessing new technology/applications based on reviews of information from appropriate bodies, using professionals in the process; for ensuring the consistent application of review criteria that, within the scope of coverage limits, are compatible with the unique needs of each individual patient and each presenting situation; for ensuring the confidentiality of clinical and proprietary information; clinical review criteria must be periodically reviewed and updated with the involvement of practicing physicians and other providers within the plan’s network; with regard to UR determinations, plans must ensure that: (a) individual clinical case assessments, data and practice guidelines for the relevant clinical conditions are given equal or greater weight than UR guidelines in making decisions to approve or deny care, with the former taking precedence over the latter when there is a conflict between the two; (b) all determinations to deny or limit an admission, service, procedure or extension of stay are rendered by a physician under the direction of the medical director, etc.; compensation to reviewers may not contain incentives to limit access to medically-necessary care and may not be based on the quantity or type of adverse determinations rendered.

Vt. Reg. R. 10.203(C) – UR/procedure – for initial and concurrent review, determination and notice within 3 b.d. of obtaining all necessary information; in the case of an adverse concurrent review determination, the member is not liable for any services provided before notification to the member; expedited review for urgently-needed care (defined term) must take no more than 24 hours from request; content of notice specified (must include Division of Health Care Administration’s toll-free number), and plan must make actual clinical review criteria available upon request.

Vt. Reg. R. 10.203(D) – grievances – for purposes of this section, “member” includes a representative of the member or provider on behalf of the member; reviewers must be independent of the issue that is the subject of the grievance, and if it is a decision relating to medical care, must include at least one clinical peer of the treating provider who has consulted with the treating provider; time periods for response: for grievances relating to emergency or urgent care, as expeditiously as the condition requires, but no more than 3 days after receipt of necessary information, otherwise 15 days (30 days if not related to medical care); resolution to be documented (content specified); plan must offer second review for members not satisfied with initial resolution, with response in 2 days after receipt of necessary information in emergency and urgent cases (and for concurrent review service must be continued until member is notified of final resolution), 30 days for all others; plans must establish procedures by which persons who are unable to file written grievances may file orally or through an alternative mechanism, with the plan responsible for documentation.

Disclosure
Vt. Stat. Ann., tit. 18 § 9414(a)(2) – disclosure – applies to MCOs (= mechanisms or systems that manage health care delivery); items to be disclosed to members include the financial inducements offered to any provider for the reduction or limitation of health care services.

Vt. Stat. Ann., tit. 18 § 9414(a)(3) – gag clauses – MCO contracts may not prohibit providers from disclosing to members information about the contract or the plan that may affect their health or any decision regarding treatment.

Vt. Reg. R. 10.203(I) – gag clauses– a plan’s contract with a provider may not prohibit the provider from disclosing information about the contract or the plan to members or potential members.  (Note: this section also includes standard requirement that provider contracts include a “hold harmless” provision.)

Vt. Reg. R. 10.207 – disclosure – plans must disclose the following to each member upon enrollment and annually thereafter (and to prospective members upon request): information about any formulary, the financial inducements offered to any provider for the reduction or limitation of services (does not require disclosure of individual contracts or specific details of any financial arrangement), how members can obtain standing referrals or specialists as PCPs, waiting time and travel standards, opportunities for member participation, consumer information and services available from the state agency, and a list of information available upon request.

Emergency Care
Vt. Reg. R. 10.103 (definitions), 10.203(E) – emergency care – adopts prudent layperson definition for emergency medical condition; if exists, no prior authorization requirement; must cover services necessary to screen and stabilize from OON provider if prudent layperson would have reasonably believed that use of network provider would result in delay that would worsen the emergency.

Formularies
*Vt. Reg. R. 10.207(B) – formularies – plans that cover prescription drugs and use a formulary must include a provision for coverage for prescription drugs not on the formulary on the same terms as formulary drugs where the member’s provider determines that the formulary drug (1) has not been effective in treating the patient’s medical condition; or (2) causes or is reasonably expected to cause adverse or harmful reactions in the member.

Prohibition on Incentives
Vt. Reg. R. 10.203(I) – financial incentives – no provider contract shall contain a provision offering an inducement to a provider to forego providing medically-necessary services to a member.

Provider Protections
*Vt. Reg. R. 10.203(F), (I) – credentialing and selection criteria – plans may not refuse to credential a provider solely because the provider treats a substantial number of patients who require expensive or uncompensated care; selection criteria may not be established in a manner that would exclude providers because they treat or specialize in treating populations presenting a risk of higher-than-average claims, losses or health services utilization or provider a higher-than-average level of uncompensated care (but followed by several caveats).

Vt. Reg. R. 10.203(I) – nonretaliation –plans may not prohibit a provider from, or penalize a provider for, discussing treatment options with members or advocating on behalf of members or reporting any act or practice of the plan that jeopardizes patient health or welfare in good faith.

Selected Benefit Mandates
Vt. Stat. Ann., tit. 8 § 4089c – diabetes – standard equipment, supplies, and outpatient self-management training and education provision.

Vt. Stat. Ann., tit. 8 § 4089e – inherited metabolic diseases – standard provision requiring coverage for medical food (and “low protein modified food product” up to a specified dollar limit).

Miscellaneous
Vt. Reg. R. 10.203(A) – QI – plans must have an annually updated quality improvement plan that describes how the plan intends to, among other things: ensure that providers and members have the opportunity to participate in developing, implementing and evaluating the QI system, and provide members the opportunity to comment on the QI process.

Vt. Reg. R 10.203(H) – confidentiality – plans must establish and implement policies, standards and procedures to protect the confidentiality, security and integrity of individually-identifiable health care information, including periodic training for all employees, disciplinary measures for violations, etc.

Vt. Stat. Ann., tit. 8 § 4089b – mental health coverage – fairly strong parity law.



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Virginia

Consumer/Patient Protections
Note:  Medicaid regulations reference the general regulations as applicable to HMOs serving the Medicaid population.  Va. Admin. Code 12:30-20-60(D).

Access
*Va. Code Ann. §§ 38.2-3407.10(C), (F) – continuity of care – a carrier that uses a provider panel must establish procedures that give an enrollee in an active course of treatment the right, upon request, to continue to receive health care services for up to 90 days from notice to the PCP of termination without cause (for the remainder of an enrollee’s life in cases of terminal illness).

*Va. Code Ann. § 38.2-3407.11:1 (1999) – specialists as PCPs – an enrollee with an ongoing special condition may, after consultation with the PCP, receive a referral to a specialist who will be responsible for coordinating the enrollee’s primary and specialty care related to the initial referral (plan or issuer required to refer if care would most appropriately be coordinated by such a referral); special condition means a condition that is life-threatening, degenerative or disabling and requires specialized medical care over a prolonged period of time; within the treatment period authorized by the referral, the specialized needs no additional authorization and may authorize referrals and other services related to the initial referral to the same extent as a PCP. (Parallel provisions for state employees in separate section)

*Va. Code Ann. § 38.2-3407.11:1 (1999) – standing referrals – insurer, HMO, etc. must have procedure that permits enrollee with an ongoing special condition to receive a standing referral for treatment of the special condition (if plan or issuer or PCP in consultation with same determines to be appropriate, plan or issuer must make such a referral). (Separate provision requires procedures for cancer patients to obtain standing referrals to specialists board-certified in pain management and oncologists (§ 38.2-3407.11:1).)

Va. Code Ann. § 38.2-3407.11 – OB/GYNs – carriers (broad definition) must cover annual exam by IN OB/GYN without authorization.

Complaints/UR
Va. Admin. Code 14:5-210-40 – medical necessity – defined as “appropriate and necessary health care services which are rendered for any condition which, according to generally accepted principles of good medical practice, requires the diagnosis or direct care and treatment of an illness, injury, or pregnancy-related condition, and are not provided only as a convenience.”

Va. Code Ann. §§32.1-137.9, 32.1-137.12 – 32.1-137.17 – UR – standards must be objective, clinically valid, and compatible with established principles of health care and must be sufficiently flexible to allow deviations when justified on a case-by-case basis; staff must be adequately trained and supported by a physician advisor; process for reconsideration of adverse decisions must include communication of decision within 2 b.d. of receipt of all necessary information; for emergency health care, authorization may be requested within 48 hours or after 1 b.d.; no entity may render adverse decision without good faith attempt to obtain information from provider, and prior to rendering provider is entitled to review issue of medical necessity with a physician advisor or peer with UR entity; a decision on reconsideration must be made by a physician advisor, peer, or panel including a physician advisor or peer and decision must be provided in writing within 10 b.d. of receipt of request; decision in final appeal must be rendered no later than 60 b.d. after receipt of all required documentation (1 b.d. for expedited appeal) and involve review by peer not previously involved and not employed by the UR entity; due consideration should be given to the availability or nonavailability of alternative services proposed and consideration of any hardship imposed by the alternative on the patient and family is not precluded; the appeals process does not apply to a decision rendered solely on the basis that a plan does not provide benefits for the health rendered/requested; UR entity may not penalize provider for advocating for patient (except for pattern of filing appeals without merit).

Va. Code Ann. § 38.2-5900 et seq. (1999) – UR/independent review – an enrollee may file a request for review of a final adverse decision with the Bureau of Insurance where more than $500 is at stake; must be filed within 30 days and include a $50 filing fee (can be waived if undue hardship); the Bureau conducts a preliminary review and accepts cases which are appropriate for review and forwards them to an impartial review entity; the reviewer examines the final decision to determine whether it is objective, clinically valid, compatible with established principles of health care, and appropriate under the terms of the contract and renders a recommendation within 30 b.d. of the acceptance of the appeal by the Bureau; the commissioner’s ruling carries out the recommendations unless they exceeded its authority or are arbitrary and capricious; the ruling is binding with respect to the issues examined; conflict of interest rules ensure impartiality (does not take effect until earlier of promulation of regulations by state corporation commission or 7/1/2000).

Va. Code Ann. §§ 32.1-137.6, 32.1-137.15, 38.2-5904 (1999) – ombudsman – plan information materials, and notices of denials of appeals, must include the mailing address, telephone number, and electronic mail address of the Managed Care Ombudsman; ombudsman assist covered persons in understanding their rights and responsibilities and, upon request, assists them in using procedures and processes available to them from their MCO, including all UR appeals; where review of records is required, access only with express written consent.

Va. Admin. Code 14:5-210-70 – grievances – grievances must be resolved within reasonable period of time, not more than 180 days from date registered (subject to extension in the event of delay in obtaining documents or mutual agreement).

Disclosure
Va. Code Ann. § 38.2-3407.9:01 – formulary disclosure – any insurer, HMO, etc. that includes coverage for outpatient prescription drugs and uses a formulary must update it in consultation with a P&T committee (majority practicing licensed health care providers) and make available to participating providers and pharmacists a complete list and any updates.

*Va. Code Ann. § 38.2-3407.11:1(F) (1999) – specialist care – notice of provisions relating to specialty referrals must be included in the policy or evidence of coverage.

Va. Code Ann. §§ 38.2-3407.10(J), (K) – gag clauses – carrier contracts with providers may not prohibit or interfere with the discussion of medical treatment options with patients and must permit and require providers to discuss medical treatment options with patients.

Emergency Care
Va. Code Ann. §§ 38.2-4300, 38.2-4312.3 – emergency care – in chapter that covers HMOs only; adopts prudent layperson standard in definition of emergency services, but emergency services from OON providers in service area covered only when delay from going to IN provider could reasonably be expected to cause the enrollee’s condition to worsen if left unattended; HMO must reimburse for services required under EMTALA if the HMO or PCP directed the member to the ER or the HMO doesn’t have the required 24 hour access.

Formularies
Va. Code Ann. § 38.2-3407.9:01 – non-formulary drugs – any insurer, HMO, etc. that includes coverage for outpatient prescription drugs must establish a process to allow an enrollee to obtain, without additional cost-sharing, a specific, medically necessary nonformulary prescription drug if the formulary drug is determined by the insurer, HMO, etc., after reasonable investigation and consultation with the prescribing physician, to be an inappropriate therapy for the enrollee’s medical condition; must act on request within 1 b.d. of receipt.

Nondiscrimination
Va. Code Ann. § 38.2-5806(A) – discrimination – no managed care health insurance plan licensee may cancel or refuse to renew coverage for basic health care services on the basis of health status.

Selected Benefit Mandates
*Va. Code Ann. § 38.2-3418.8 (1999) – clinical trials (cancer) – insurers, HMOs, etc. must cover patient costs association with participation in clinical trials for treatment studies on cancer in policies, etc. issued or renewed after 7/1/99; limited to approved Phase II-IV trials (Phase I on a case-by-case basis) at a competent site where there is no clearly superior noninvestigational alternative and available evidence provides a reasonable expectation that treatment will be at least as effective as the noninvestigational alternative, and the member and PCP conclude that participation would be appropriate.

Va. Admin. Code 14:5-210-90 – basic services – basic health care services that must be provided by HMOs specified, including short-term PT and rehabilitation services that can be expected to result in significant improvement of condition within 90 days, etc.

Va. Code Ann. § 38.2-3412.1 – mental health/substance abuse services – includes minimum number of visits that must be covered in various settings.

Va. Code Ann. § 38.2-3418.2 – bones and joints – applies to broad range of insurance entities.

Va. Code Ann. § 38.2-3418.3 – hemophilia – does not apply to Medicare or similar state or federal governmental plans.

Va. Code Ann. § 38.2-3418.5 – early intervention services – $5000 annual cap, birth to age 3 for dependents certified as eligible under IDEA; does not apply to Medicare or similar state or governmental plans.

Miscellaneous
Va. Code Ann. § 38.2-3407.10(M) (1999) – notice of benefit reduction – group policyholders are supposed to get 60 days advance notice of benefit reductions (and they in turn are supposed to give enrollees 30 days advance notice).

Va. Code Ann. §§ 38.2-3407.10(N), 38.2-4209(F) (PPOs), 38.2-4312(F) (1999) – prohibition on provisions in provider contracts that require providers to deny covered services that they know to be medically necessary and appropriate that are provided with respect to a specific enrollee/group with similar medical conditions (eff. 7/1/99).



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Washington

Consumer/Patient Protections

Access
Wash. Rev. Code § 48.42.100 – OB/GYNs – enrollees must be permitted direct access to participating women’s health care provider of choice.

Complaints/UR
Wash. Rev. Code § 48.43.055 – complaints – if carrier fails to grant or reject a request for review of a complaint within 30 days, it may be treated as rejected and submitted for nonbinding mediation.

Wash. Rev. Code §§ 48.46.020 (definition), 48.46.030 – grievances – HMOs must afford enrollees a “meaningful grievance procedure,” meaning “a procedure for investigation of consumer grievances in a timely manner aimed at mutual agreement for settlement according to procedures approved by the commissioner.”

Wash. Admin. Code 284-46-507 – experimental and investigational exclusions – HMO certificates of coverage must define experimental or investigational as a basis for exclusion and include an identification of the authority or authorities that will be relied upon in making determinations; if the HMO or an affiliate is identified as an authority, the criteria to be used must be specified; any denial on these groups must be given in writing within 20 b.d. of receipt of a fully documented request, to include the name and job title of the reviewer, the basis, procedures for appeal, etc.; the appeals procedure must provide for review by qualified persons not involved in the initial decision.

Disclosure
Wash. Rev. Code § 48.43.095 – disclosure (incentives, formularies) – upon the request of an enrollee or prospective enrollee, a carrier must provide a written description of any reimbursement or payment arrangements, and information as to whether a plan provider is restricted to prescribing drugs from a plan formulary, what drugs are on the formulary, and the extent to which enrollees will be reimbursed for non-formulary drugs, among other things.

Wash. Rev. Code § 48.43.075 – gag clauses – no carrier may (1) preclude or discourage providers from informing patients of the care they require, including treatment options, and whether in their view such care is consistent with medical necessity or otherwise covered, or penalize a provider for advocating on behalf of a patient; or (2) preclude or discourage patients or payers from discussing the merits of different carriers with their providers (including critical comments).

Emergency Care
Wash. Rev. Code §§ 48.43.005, 48.43.093 – emergency care – applies to health carriers (includes disability insurer); adopts prudent layperson definition of emergency medical condition; carrier may not require prior authorization for such services up to the point of stabilization; OON providers must be provided if prudent layperson would have reasonably believed that use of IN facility would result in a delay that would worsen the emergency (cost-sharing differential of up to $50 permitted, but may not be applied under certain circumstances).

Nondiscrimination
Wash. Rev. Code § 48.46.060 – discrimination – HMOs may not cancel or fail to renew enrollment or transfer from group to individual basis solely on the basis of health status.

Consumer Participation
Wash. Rev. Code §§ 48.46.020 (definition), 48.46.030 – policy making – HMOs must be governed by a board elected by enrollees, or otherwise provide enrollees with a “meaningful role in policy making,” meaning “a procedure approved by the [insurance] commissioner which provides consumers or elected representatives of consumers a means of submitting the views and recommendations of such consumers to the governing board of such organization coupled with reasonable assurance that the board will give regard to such views and recommendations.”

Selected Benefit Mandates
*Wash. Admin. Code 284-46-500 – alternative care – HMOs must include substitution of home health care in lieu of covered hospitalization or other institutional care at equal or lesser cost (may include coverage for DME which permits the insured to stay at home); substitution of less expensive or intensive services may be made only with the consent of the insured and upon the recommendation of the attending physician/provider that such services will adequately meet the patient’s needs; coverage may be limited to no less than the maximum benefits which would be payable for hospital or other institutional expenses.

Wash. Rev. Code § 48.46.272 – diabetes – applies to HMOs (and risk-bearing provider groups under § 48.44.315); standard provision.

Wash. Rev. Code § 48.46.350 – chemical dependent treatment – applies to HMO group agreements (and risk-bearing provider groups with group contracts under § 48.44.240).

Wash. Rev. Code § 48.46.510 – PKU – applies to HMOs (and risk-bearing provider groups under § 48.44.440); requires coverage of medically necessary medical foods.

Wash. Rev. Code § 48.46.520 – neurodevelopmental therapies – applies to HMO employer-sponsored group contracts (and risk-bearing provider groups with employer-sponsored group contracts under § 48.44.450); permits use of utilization and cost controls.

Miscellaneous
Wash. Rev. Code § 48.43.105 – immunity for comparison documents – a public or private entity that exercises due diligence in preparing a document that compares health carriers is immune from civil liability from claims based on the document, provided it includes a specified disclaimer.



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West Virginia

Access
W. Va. Code Ann. §§ 33-42-1 – 33-42-7 – OB/GYNs – direct access at least annually to a women’s health care provider.

Complaints/UR
W. Va. Code Ann. § 33-25A-12 – grievances – HMO must designate grievance coordinator and establish toll-free number; each level of procedure must have some person with problem solving authority to participate; formal grievances must be processed through all phases of the procedure in a reasonable length of time, not to exceed 60 days (any grievance in which time is of the essence must be handled on an expedited basis, “such that a reasonable person would believe that a prevailing subscriber would be able to realize the full benefit of a decision in his or her favor”); the procedure must state that the subscriber has the right to appeal to the state insurance commissioner; physicians must be involved in reviewing medically related grievances; HMOs may not establish time limits of less than one year from the date of occurrence for the subscriber to file a formal grievance; copies of grievances and responses must be available to the commissioner and public for inspection for 3 years.

W. Va. Code Rules §§ 114-51-2 – 114-51-4 – UR – UR programs must have written UR protocols based on reasonable medical evidence; HMOs must make review criteria available to participating physicians upon request and establish mechanisms for checking the consistency of application and updating criteria on a periodic basis; a licensed physician must conduct a review of medical appropriateness on any denial of medical services, with a physician consultant specially trained in the area available during the review process; decisions must be made in a timely manner; HMOs must establish medically appropriate timeframes for urgent, emergency and planned care cases; in case of denial, a written notice must be sent immediately to all involved parties, and must include the reason for denial and an explanation of the appeal process; HMOs must have mechanisms to evaluate the effects of the program.

Disclosure
W. Va. Code Ann. § 33-25C-3 – disclosure – all managed care plans (HMOs and prepaid plans) must give subscribers notice of certain rights including: the ability to pursue grievance and hearing procedures without reprisal, the right to privacy and confidentiality, the right to be informed of plan policies and any charges; the ability to obtain evidence of medical credentials of providers, the right to have coverage denials reviewed by appropriate medical professionals.

Emergency Care
W. Va. Code Ann. §§ 33-25A-8d (HMOs), 33-15-21, 33-16-3i (insurers), 33-24-7e (corporations) – emergency care – prudent layperson standard for emergency medical condition; preauthorization or precertification may not be required for emergency services (stabilization); excludes employer-sponsored plans. (applies through 6/30/2000)

Nondiscrimination
W. Va. Code Ann. § 33-25A-14 – discrimination – HMOs may not discriminate in enrollment policies or quality of services on the basis of health status, among other things, subject to proviso that differences in rates based on valid actuarial distinctions will not be considered discrimination.

Prohibition of Incentives
W. Va. Code of Reg. § 114-53 – incentives – payments as an inducement to deny medically necessary services are prohibited.

Consumer Participation
W. Va. Code Ann. § 33-25A-6 – policy and operation – HMO enrollees must be afforded an opportunity to participate in matters of policy and operation.

Selected Benefit Mandates
W. Va. Code Ann. §§ 33-15C-1, 33-16-16 – diabetes – standard provision.



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Wisconsin

Consumer/Patient Protections

Access
*Wis. Stat. Ann. § 609.22(8) – access – applies to managed care plans (= plan that creates incentives to use selected providers); plans must develop an access plan to meet the needs, with respect to covered benefits, of enrollees who are members of underserved populations.

*Wis. Stat. Ann. § 609.22(4) – standing referral/specialists as PCPs –a plan must establish a procedure by which an enrollee may apply for a standing referral to a specialist (but the plan may restrict secondary referrals); the specialist, in agreement with the enrollee and the enrollee’s PCP, may provide primary care services in accordance with procedures established by the plan.

*Wis. Stat. Ann. § 609.22(5) – second opinions – plans must provide enrollees with coverage for a second opinion from another participating provider.

*Wis. Stat. Ann. § 609.24(1) – continuity of care – if a plan represents that a provider is or will be a participating provider in marketing materials distributed during an open enrollment periods or at coverage renewal, then it must cover services of that provider (a) until the end of the plan year or (b) if an enrollee is undergoing a course of treatment with a non-PCP participating provider whose participation is terminated (but not for misconduct), for the remainder of the course of treatment or 90 days after termination or until the end of the plan year, whichever is shorter.

Complaints/UR
*Wis. Stat. Ann. §§ 609.84, 632.855 – experimental treatment – limited service health organizations, PPOs and managed care plans that limit coverage of experimental treatment must define and disclose limits including who is authorized to make a determination and the criteria to be used; a plan must issue a decision within 5 working days after receiving a require; denials must be given in a letter than includes the specific medical and scientific reasons and a description of the appeal procedure.

Disclosure
Wis. Stat. Ann. § 609.30 – gag clauses – a plan may not contract with a participating provider to limit the provider’s disclosure of information, to or on behalf of an enrollee, about the enrollee’s medical condition or treatment options.

Emergency Care
Wis. Stat. Ann. §§ 609.22(6), 609. 82, 632.85 – emergency care – adopts prudent layperson definition of “emergency medical condition”; plans may not impose prior authorization requirements for coverage of emergency services.

Formularies
*Wis. Stat. Ann. §§ 609.83, 632.853 – drugs and devices – limited service health organizations, PPOs and managed care plans that use formularies must develop a process through which a physician may present medical evidence to obtain an individual patient exception for coverage of a prescription drug or device not routinely covered by the plan; the process must include timelines for both urgent and non-urgent review.

Provider Protections
Wis. Stat. Ann. § 609.30 – gag clauses/nonretaliation – a plan may not contract with a participating provider to limit the provider’s disclosure of information, to or on behalf of an enrollee, about the enrollee’s medical condition or treatment options; a plan may not penalize a provider for making referrals to other participating providers or discussing medically necessary or appropriate care with or on behalf of an enrollee.

Selected Benefit Mandates
Wis. Stat. Ann. §§ 609.78, 632.895(11) – TMJ – disability policies, limited service health organizations, PPOs and managed care plans must cover up to $1250 annually.

Wis. Stat. Ann. §§ 609.81, 632.895(9) – HIV/AIDS – disability policies, limited service health organizations, PPOs and managed care plans that provide coverage of prescription medication must cover drugs approved by the FDA for treatment of HIV, including INDs in or post-phase 3 clinical investigation, if prescribed by the insured’s physician for HIV-related treatment.

Miscellaneous
Wis. Stat. Ann. § 609.36(2) – confidentiality – plan must establish written policies and procedures consistent with state law for the handling of medical records and the enrollee communications to ensure confidentiality.



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Wyoming

Consumer/Patient Protections

Wy. Stat. Ann. § 26-34-117 – gag clauses/nonretaliation – HMOs are prohibited from refusing to contract with or compensate an otherwise eligible provider solely because the provider has in good faith communicated with patients regarding the HMO’s products as they related to the those patients’ needs; HMOs may not prohibit or restrict providers from disclosing to subscriber any medically appropriate health care information regarding treatment, the decision of any plan to authorize or deny services, or the UR process.

Miscellaneous
Wy. Stat. Ann. § 26-34-108 – although Wyoming is bereft of the usual protections, it does have a fairly detailed legislative provision setting forth minimum standards for HMO quality assurance programs.



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"Legal Protections for People with Disabilities" is one of six research projects of the Research and Training Center on Managed Care and Disability (RTC-MC&D). Partners in the RTC are the National Rehabilitation Hospital Research Center (NRH-RC) in Washington, D.C. and ILRU (Independent Living Research Utilization) in Houston, TX. The Health Law and Policy Institute, based at the University of Houston and ILRU are collaborating on the "Legal Protections" project. The Center is funded by the National Institute on Disability and Rehabilitation Research (NIDRR), an agency of the Department of Education, under grant #H133B70003 to disseminate the results of this research project. NIDRR is not an enforcement agency. Any information contained on this Web site is intended solely as informal guidance and is not a legal interpretation of any rights or responsiblities conveyed by the legislation addressed here, nor is it binding on NIDRR.

 

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Last Modified: 11-8-04