[31 Pa.B. 3043]
[Continued from previous Web Page] § 9.682. Direct access for obstetrical and gynecological care.
(a) A plan shall permit enrollees direct access to obstetrical and gynecological services for maternity and gynecological care, including medically necessary and appropriate follow-up care and referrals, for diagnostic testing related to maternity and gynecological care from participating health care providers without prior approval from a primary care provider. Time restrictions may not apply to the direct accessing of these services by enrollees.
(b) A plan may require a provider of obstetrical or gynecological services to obtain prior authorization for selected services, such as diagnostic testing for subspecialty care--for example, reproductive endocrinology, oncologic gynecology, and maternal and fetal medicine.
(c) A plan shall develop policies and procedures that describe the terms and conditions under which a directly accessed health care provider may provide and refer for health care services with and without obtaining prior plan approval. The plan shall have these policies and procedures approved by its quality assurance committee. The plan shall provide these terms and conditions to all health care providers who may be directly accessed for maternity and gynecological care.
§ 9.683. Standing referrals or specialists as primary care providers.
(a) A plan shall adopt and maintain procedures whereby an enrollee with a life-threatening, degenerative or disabling disease or condition shall, upon request, receive an evaluation by the plan and, if the plan's established standards are met, the procedures shall allow for the enrollee to receive either a standing referral to a specialist with clinical expertise in treating the disease or condition, or the designation of a specialist to assume responsibility to provide and coordinate the enrollee's primary and specialty care.
(b) The plan's procedures shall:
(1) Ensure the plan has established standards, including policies, procedures and clinical criteria for conducting the evaluation and issuing or denying the request, including a process for reviewing the clinical expertise of the requested specialist. The plan shall have its standards approved by its quality improvement or quality assurance committee.
(2) Provide for evaluation by appropriately trained and qualified personnel.
(3) Include a treatment plan approved by the plan in consultation with the primary care provider, the enrollee and as appropriate, the specialist, and provided in writing to the specialist who will be serving as the primary care provider or receiving the standing referral.
(4) Be subject to the plan's utilization management requirements and other established utilization management and quality assurance criteria.
(5) Ensure that a standing referral to, or the designation of a specialist as, a primary care provider will be made to participating health care providers when possible.
(6) Ensure the plan issues a written decision regarding the request for a standing referral or designation of a specialist as a primary care provider within a reasonable period of time taking into account the nature of the enrollee's condition, but within 45 days after the plan's receipt of the request.
(7) Ensure the written decision denying the request provides information about the right to appeal the decision through the grievance process.
(c) A plan shall have mechanisms in place to review the effect of this procedure, and shall present the results to its quality improvement or quality assurance committee on an annual basis.
§ 9.684. Continuity of care.
(a) Provider terminations initiated by the plan shall be governed as follows:
(1) Except as noted in subsections (i) and (j), an enrollee may continue an ongoing course of treatment, at the option of the enrollee, for up to 60 days from the date the enrollee is notified by the plan of the termination or pending termination of a participating health care provider.
(2) If the provider who is terminated is a primary care provider, the plan shall provide written notice of the termination to each enrollee assigned to that primary care provider and shall request and facilitate the enrollee's transfer to another primary care provider.
(3) If the provider who is terminated is not a primary care provider, the plan shall notify all affected enrollees identified through referral and claims data.
(4) Written notice from the plan shall include instructions as to how to exercise the continuity of care option, including qualifying criteria, the procedure for notifying the plan of the enrollee's intention and how the enrollee will be notified that a continuing care arrangement has been agreed to by the provider and the plan.
(b) A new enrollee seeking to continue care with a nonparticipating provider shall notify the plan of the enrollee's request to continue an ongoing course of treatment for the transitional period.
(c) The transitional period for an enrollee who is a woman in the second or third trimester of pregnancy as of the effective date of coverage, if she is a new enrollee, or as of the date the notice of termination or pending termination was provided by the plan, shall extend through the completion of postpartum care.
(d) The transitional period may be extended by the plan if extension is determined to be clinically appropriate. The plan shall consult with the enrollee and the health care provider in making this determination.
(e) A plan shall cover health care services provided under this section under the same terms and conditions as applicable for services provided by participating health care providers.
(f) A plan may require nonparticipating health care providers to meet the same terms and conditions as participating health care providers with the exception that a plan may not require nonparticipating health care providers to undergo full credentialing.
(g) A plan shall provide the nonparticipating or terminated health care provider with written notice of the terms and conditions to be met at either the earliest possible opportunity following notice of termination to the provider, or immediately upon request from an enrollee to continue services with a nonparticipating health care provider.
(h) To be eligible for payment by a plan, a nonparticipating or terminated provider shall agree to the terms and conditions of the plan prior to providing service under the continuity of care provisions. If the health care provider does not agree to the terms and conditions of the plan prior to providing the service, the provider shall notify the enrollee of that fact.
(i) This section does not require a plan to provide health care services that are not covered under the terms and conditions of the plan.
(j) If the plan terminates a participating health care provider for cause, as described in section 2117(b) of the act (40 P. S. § 991.2117(b)) the plan will not be responsible for the health care services provided by the terminated provider to the enrollee following the date of termination.
§ 9.685. Standards for approval of point-of-service products.
(a) If a plan offers a point-of-service product, it shall submit a formal product filing for the POS product to the Department and the Insurance Department.
(b) A plan may offer POS options to groups and enrollees, if the plan:
(1) Has a system for tracking, monitoring and reporting enrollee self-referrals for the following purposes:
(i) To ensure that self-referral activity is not occurring because of an access problem, a deliberate attempt to force an enrollee to bypass a primary care provider for nonmedical reasons or over restrictive or burdensome plan requirements.
(ii) To promptly investigate any PCP practice in which enrollees are utilizing substantially higher levels of non-PCP referred care than average, to ensure that enrollee self-referrals are not a reflection of access or quality problems on the part of the PCP practice, inappropriate patient direction or burdensome plan requirements.
(2) Provides clear disclosure to enrollees of out-of-pocket expenses.
(3) Does not directly or indirectly encourage enrollees to seek care without a PCP referral or from out-of-network providers due to an inadequate network of participating providers in any given specialty.
Subchapter I. COMPLAINTS AND GRIEVANCES Sec.
9.701. Applicability. 9.702. Complaints and grievances. 9.703. Internal complaint process. 9.704. Appeal of a complaint decision. 9.705. Internal grievance process. 9.706. Health care provider initiated grievances. 9.707. External grievance process. 9.708. External grievance reviews by CREs. 9.709. Expedited review. 9.710. Approval of plan enrollee complaint and enrollee and provider grievance systems. 9.711. Informal dispute resolution systems and alternative dispute resolution systems. § 9.701. Applicability.
This subchapter applies to the review and appeal of complaints and grievances under Act 68.
§ 9.702. Complaints and grievances.
(a) General
(1) A plan shall have a two-level complaint procedure and a two-level grievance procedure which meets the requirements of sections 2141, 2142, 2161 and 2162 of the act (40 P. S. §§ 991.2141, 991.2142, 991.2161 and 991.2162) and this subchapter.
(2) The plan may not incorporate administrative requirements, time frames or tactics to directly or indirectly discourage the enrollee or health care provider from, or disadvantage the enrollee or health care provider in utilizing the procedures. The following apply if the enrollee or health care provider believes the plan is violating this paragraph:
(i) An enrollee or a health care provider may contact the Department to complain that a plan's administrative procedures or time frames are being applied to discourage or disadvantage the enrollee or health care provider in utilizing the procedures.
(ii) The Department will investigate the allegations, and take action it deems necessary and appropriate under Act 68.
(iii) Referral of the allegations to the Department will not operate to delay the processing of the complaint or grievance review.
(3) At any time during the complaint or grievance process, an enrollee may choose to designate a representative to participate in the complaint or grievance process on the enrollee's behalf. The enrollee or the enrollee's representative shall notify the plan of the designation.
(4) The plan shall make a plan employee available to assist the enrollee or the enrollee's representative at no charge in preparing the complaint or grievance if a request for assistance is made by the enrollee or the representative at any time during the complaint or grievance process. The plan employee made available by the plan may not have participated in any plan decision with regard to the complaint or grievance.
(5) As part of its complaint and grievance process, a plan shall have a toll-free telephone number for an enrollee to use to obtain information regarding the filing and status of a complaint or grievance. The plan shall make reasonable accomodations to enable enrollees with disabilities and non-English speaking enrollees to secure the information.
(6) A plan shall provide copies of its complaint and grievance procedures to the Department for review and approval under § 9.710 (relating to approval of plan enrollee complaint and enrollee and provider grievance systems). The Department will use the procedures as a reference when assisting enrollees who contact the Department directly.
(b) Correction of plan. A plan shall immediately correct any procedure found by the Department to be noncompliant with the act or this chapter.
(c) Complaints versus grievances.
(1) The plan may not classify the request for an internal review as either a complaint or a grievance with the intent to adversely affect or deny the enrollee's access to the procedure.
(2) If the plan has a question as to whether the request for an internal review is a complaint or a grievance, the plan shall consult with the Department or the Insurance Department as to the most appropriate classification. The decision shall be final and binding.
(3) An enrollee may contact the Department or the Insurance Department directly for consideration and intervention with the plan, if the enrollee disagrees with the plan's classification of a request for an internal review.
(4) If the Department determines that a grievance has been improperly classified as a complaint, the Department will notify the plan and the enrollee and the case will be redirected to the appropriate level of grievance review. Filing fees shall be waived by the plan.
(5) If the Department determines that a complaint has been improperly classified as a grievance, the Department will notify the plan and the enrollee, and the case will be redirected to the appropriate level of complaint review. If the Department determines that a complaint has been improperly classified as a grievance prior to the external review, the filing fee shall be refunded.
(6) The Department will monitor plan reporting of complaints and grievances and may conduct audits and surveys to verify compliance with Article XXI and this subchapter.
(d) Time frames.
(1) If a plan establishes time frames for the filing of complaints and grievances, it shall allow an enrollee at least 45 days to file a complaint or grievance from the date of the occurrence of the issue being complained about, or the date of the enrollee's receipt of notice of the plan's decision.
(2) A health care provider seeking to file a grievance with enrollee consent under § 9.706 (relating to health care provider initiated grievances) shall have the same time frames in which to file as an enrollee.
§ 9.703. Internal complaint process.
(a) A plan shall establish, operate and maintain an internal complaint process which meets the requirements of section 2141 of the act (40 P. S. § 991.2141), and this subchapter. The process shall address how an enrollee or the enrollee's representative may file complaints by which the enrollee or the enrollee's representative seek to have the plan review and change plan decisions regarding participating health care providers, or the health plan coverage, plan operations and management policies of the plan.
(b) A plan shall permit an enrollee or the enrollee's representative to file with it a written or oral complaint.
(c) A plan's internal complaint process shall include the following standards:
(1) First level review.
(i) Upon receipt of the complaint, the plan shall provide written confirmation of its receipt to the enrollee and the enrollee's representative, if the enrollee has designated one, including the following information:
(A) That the plan considers the matter to be a complaint, and that the enrollee or the enrollee's representative may question this classification by contacting the Department.
(B) That the enrollee may appoint a representative to act on the enrollee's behalf at any time during the process.
(C) That the enrollee or the enrollee's representative may review information related to the complaint upon request and submit additional material to be considered by the plan.
(D) That the enrollee or the enrollee's representative may request the aid of a plan employee who has not participated in previous decisions to deny coverage for the issue in dispute, at no charge, in preparing the enrollee's complaint.
(E) If the plan chooses to permit attendance at the first level review, that the enrollee and the enrollee's representative may attend the first level review.
(ii) The first level complaint review shall be performed by an initial review committee which shall include one or more employees of the plan. The members of the committee may not have been involved in a prior decision to deny the enrollee's complaint.
(iii) A plan shall provide the enrollee and the enrollee's representative access to all information relating to the matter being complained of and shall permit an enrollee to provide written data or other material in support of the complaint. The plan may charge a reasonable fee for reproduction of documents.
(iv) The plan shall provide, at no charge, at the request of the enrollee or the enrollee's representative, a plan employee who has not participated in previous decisions to deny coverage for the issue in dispute, to aid the enrollee or the enrollee's representative in preparing the enrollee's first level complaint.
(v) The plan shall complete its review and investigation of the complaint and shall arrive at its decision within 30 days of receipt of the complaint.
(vi) The plan shall notify the enrollee in writing of the decision of the initial review committee within 5 business days of the committee's decision. The notice to the enrollee and the enrollee's representative shall include the basis for the decision and the procedures to file a request for a second level review of the decision of the initial review committee including:
(A) A statement of the issue reviewed by the first level review committee.
(B) The specific reasons for the decision.
(C) References to the specific plan provisions on which the decision is based.
(D) If an internal rule, guideline, protocol, or other similar criterion was relied on in making the decision, either the specific rule, guideline, protocol or criterion, or instructions on how to obtain the internal rule, guideline, protocol or criterion.
(E) An explanation of how to request a second level review of the decision of the initial review committee.
(F) The time frames for requesting a second level review, if any. See § 9.702(d)(1) (relating to complaints and grievances).
(2) Second level review.
(i) Upon receipt of the request for the second level review, the plan shall send the enrollee and the enrollee's representative an explanation of the procedures to be followed during the second level review. This information shall include the following:
(A) A statement that, and an explanation of how, the enrollee or the enrollee's representative may request the aid of a plan employee at no charge, who has not participated in previous decisions to deny coverage for the issue in dispute, in preparing the enrollee's second level complaint.
(B) Notification that the enrollee and the enrollee's representative have the right to appear before the second level review committee and that the plan will provide the enrollee and the enrollee's representative with 15 days advance written notice of the time scheduled for that review.
(ii) The second level complaint review shall be performed by a second level review committee made up of three or more individuals who did not participate in the matter under review.
(A) At least one third of the second level review committee may not be employees of the plan or of a related subsidiary or affiliate.
(B) The members of the second level review committee shall have the duty to be impartial in the committee's review and decision.
(iii) The second level review shall satisfy the following:
(A) The enrollee or the enrollee's representative, or both, shall have the right to be present at the second level review.
(B) The plan shall notify the enrollee and the enrollee's representative at least 15 days in advance of the date scheduled for the second level review.
(C) The plan shall provide reasonable flexibility in terms of time and travel distance when scheduling a second level review to facilitate the attendance of the enrollee and the enrollee's representative. The plan shall make reasonable accommodation to facilitate the participation of the enrollee and the enrollee's reprsentative by conference call or in person and shall take into account the enrollee's and the enrollee's reresentative's access to transportion and any disabilities that may impede or limit the enrollee's ability to travel.
(D) If an enrollee cannot appear in person at the second level review, the plan shall provide the enrollee the opportunity to communicate with the review committee by telephone or other appropriate means.
(E) Attendance at the second level review shall be limited to members of the review committee; the enrollee or the enrollee's representatives, including any legal representative or attendant necessary for the enrollee to participate in or understand the proceedings, or both; the enrollee's provider if the enrollee consents to the provider being present; applicable witnesses; and appropriate representatives of the plan. Persons attending the second level review and their respective roles at the review shall be identified for the enrollee.
(F) The plan shall provide, at no charge, at the request of the enrollee, or the enrollee's representative, a plan employee, who has not participated in previous decisions to deny coverage for the issue in dispute, to aid the enrollee or the enrollee's representative in preparing the enrollee's second level complaint.
(G) Committee proceedings at the second level review shall be informal and impartial to avoid intimidating the enrollee or the enrollee's representative.
(H) The committee may not discuss the case to be reviewed prior to the second level review meeting.
(I) A committee member who does not personally attend the review meeting may not vote on the case unless that person actively participates in the review meeting by telephone or videoconference, and has the opportunity to review any additional information introduced at the review meeting prior to the vote.
(J) The plan may provide an attorney to represent the interests of the committee and to ensure the fundamental fairness of the review and that all disputed issues are adequately addressed. In the scope of the attorney's representation of the committee, the attorney representing the committee may not argue the plan's position, or represent the plan or plan staff.
(K) The committee may question the enrollee, the enrollee's representative and plan staff representing the plan's position.
(L) The committee shall base its decision solely upon the materials and testimony presented at the review meeting.
(iv) The proceedings of the second level review committee, including the enrollee's comments or the comments of the enrollee's representative, shall be either transcribed verbatim, summarized, or recorded electronically, and maintained as a part of the complaint record to be forwarded to the Department or the Insurance Department upon appeal to either agency.
(v) The plan shall complete the second level review and arrive at a decision within 45 days of the plan's receipt of the request of the enrollee or the enrollee's representative for a second level review.
(vi) The plan shall notify the enrollee and the enrollee's representative, if any, of the decision of the second level review committee in writing, within 5 business days after the committee's decision.
(vii) The plan shall include in its notice to the enrollee the basis for the decision and the procedures to file an appeal to the Department or the Insurance Department, including the addresses and telephone numbers of both agencies which shall include the following information:
(A) A statement of the issue reviewed by the second level review committee.
(B) The specific reason or reasons for the decision.
(C) References to the specific plan provisions on which the decision is based.
(D) If an internal rule, guideline, protocol, or other similar criterion was relied on in making the decision, either the specific rule, guideline, protocol or criterion, or instructions on how to obtain the internal rule, guideline, protocol or criterion.
(E) An explanation of how to appeal to the Department or the Insurance Department, including the addresses and telephone numbers of both agencies and the time frames for appealing to the agencies included in § 9.704 (relating to appeal of a complaint decision) and 31 Pa. Code § 154.17 (relating to complaints).
(d) The Department of Health address for purposes of this section is: Bureau of Managed Care, Pennsylvania Department of Health, Post Office Box 90, Harrisburg, Pennsylvania 17108, (717) 787-5193. Toll free (888) 466-2787, fax number: (717) 705-0947, or the Pennsylvania AT&T relay service at (800) 654-5984. The Department may change this address upon prior notification in the Pennsylvania Bulletin.
§ 9.704. Appeal of a complaint decision.
(a) An enrollee shall have 15 days from receipt of the second level review decision of a complaint to file an appeal of the decision with either the Department or the Insurance Department. The appeal shall be in writing unless the enrollee requests to file the appeal in an alternative format. The Department will make staff available to transcribe an oral appeal.
(b) The appeal from the enrollee shall include the following:
(1) The enrollee's name, address and telephone number.
(2) Identification of the plan.
(3) The enrollee's plan identification number.
(4) A brief description of the issue being appealed.
(5) The second level denial letter from the plan concerning the complaint.
(c) Upon the Department's request, the plan shall forward the complaint file, including relevant contract language and all material considered as part of the first two reviews, within 30 days of the Department's request.
(d) The plan and the enrollee may provide additional information for review and consideration to the Department. Each shall provide to the other copies of additional documents provided to the Department.
(e) The Department and the Insurance Department will determine the appropriate agency for the review.
(f) The enrollee may be represented by an attorney or other individual before the Department.
§ 9.705. Internal grievance process.
(a) A plan shall establish, operate and maintain an internal enrollee grievance process in compliance with sections 2161 and 2162 of the act (40 P. S. §§ 991.2161 and 991.2162) and this subchapter, for the purposes of reviewing a denial of coverage for a health care service on the basis of medical necessity and appropriateness.
(b) The enrollee or the enrollee's representative, or a health care provider with written consent of the enrollee, may file a written grievance with the plan. The plan shall make staff available to record an oral grievance for an enrollee who is unable by reason of disability or language barrier to file a grievance in writing.
(c) The plan's internal grievance process shall include the following standards:
(1) First level review.
(i) Upon receipt of the grievance, the plan shall provide written confirmation of its receipt to the enrollee and the enrollee's representative, if the enrollee has designated one, and the health care provider if the health care provider filed the grievance with enrollee consent, and shall also provide the following information:
(A) That the plan considers the matter to be a grievance, and that the enrollee, the enrollee's representative, or health care provider may question this classification by contacting the Department.
(B) That the enrollee may appoint a representative to act on the enrollee's behalf at any time during the internal grievance process.
(C) That the enrollee, the enrollee's representative, or the health care provider that filed the grievance with enrollee consent may review information related to the grievance upon request and submit additional material to be considered by the plan.
(D) That the enrollee or the enrollee's representative may request the aid of a plan employee who has not participated in previous decisions to deny coverage for the issue in dispute, at no charge, in preparing the enrollee's first level grievance.
(E) If the plan chooses to permit attendance at the first level review, that the enrollee, the enrollee's representative, and the health care provider who filed the grievance, may attend the first level review.
(ii) The first level grievance review shall be performed by an initial review committee which shall include one or more individuals selected by the plan. The members of the committee may not have been involved in any prior decision relating to the grievance.
(iii) The plan shall provide the enrollee, the enrollee's representative, or a health care provider that filed a grievance with enrollee consent, access to all information relating to the matter being grieved and shall permit the enrollee, the enrollee's representative, or the health care provider to provide written data or other material in support of the grievance. The plan may charge a reasonable fee for reproduction of documents. The enrollee, the enrollee's representative or the health care provider may specify the remedy or corrective action being sought.
(iv) The plan shall provide, at no charge, at the request of the enrollee or the enrollee's representative, a plan employee who has not participated in previous decisions to deny coverage for the issue in dispute, to aid the enrollee or the enrollee's representative in preparing the enrollee's grievance.
(v) The plan shall complete its review and investigation, and shall arrive at its decision, within 30 days of the receipt of the grievance.
(vi) The plan shall notify the enrollee, the enrollee's representative, and the health care provider if the health care provider filed a grievance with enrollee consent, of the decision of the internal review committee in writing, within 5 business days of the committee's decision. The notice to the enrollee, the enrollee's representative, and the health care provider, shall include the basis for the decision and the procedures for the enrollee or provider to file a request for a second level review of the decision of the initial review committee including:
(A) A statement of the issue reviewed by the first level review committee.
(B) The specific reasons for the decision.
(C) References to the specific plan provisions on which the decision is based.
(D) If an internal rule, guideline, protocol, or other similar criterion was relied on in making the decision, either the specific rule, guideline, protocol or criterion, or instructions on how to obtain the internal rule, guideline, protocol, or criterion.
(E) An explanation of the scientific or clinical judgment for the decision, applying the terms of the plan to the enrollee's medical circumstances.
(F) An explanation of how to file a request for a second level review of the decision of the initial review committee and the time frames for requesting a second level review, if any. See § 9.702(d)(1) (relating to complaints and grievances).
(2) Second level review.
(i) Upon receipt of the request for a second level review, the plan shall send the enrollee, the enrollee's representative, and the health care provider, if the health care provider filed the grievance with enrollee consent, an explanation of the procedures to be followed during the second level review. This information shall include the following:
(A) A statement that, and an explanation of how, the enrollee or the enrollee's representative may request the aid of a plan employee at no charge, who has not participated in previous decisions to deny coverage for the issue in dispute, in preparing the enrollee's second level grievance.
(B) Notification that the enrollee and the enrollee's representative, and the health care provider, if the health care provider filed the grievance with enrollee consent, have the right to appear before the second level review committee and that the plan will provide the enrollee and the enrollee's representative, and the health care provider with 15 days advance written notice of the time scheduled for that review.
(ii) The second level review committee shall be made up of three or more individuals who did not previously participate in the decision to deny coverage or payment for health care services. The members of the second level review committee shall have the duty to be impartial in their review and decision.
(iii) The second level review shall satisfy the following:
(A) The enrollee, the enrollee's representative, and the health care provider, if the health care provider filed the grievance with enrollee consent, shall have the right to be present at the second level review, and to present a case.
(B) The plan shall notify the enrollee, the enrollee's representative, and the health care provider at least 15 days in advance of the date scheduled for the second level review.
(C) The plan shall provide reasonable flexibility in terms of time and travel distance when scheduling a second level review to facilitate the attendance of the enrollee, the enrollee's representative, and the health care provider. The plan shall make reasonable accommodation to facilitate the participation of the enrollee and the enrollee's reprsentative, and the health care provider, if the provider has filed the grievance with enrollee consent, by conference call or in person and shall take into account the enrollee's and the enrollee's reresentative's access to transportion and any disabilities that may impede or limit the enrollee's ability to travel.
(D) If an enrollee or the enrollee's representative, or the health care provider if the health care provider filed the grievance with the enrollee's consent, cannot appear in person at the second level review, the plan shall provide the enrollee and the enrollee's representative or the health care provider the opportunity to communicate with the review committee by telephone or other appropriate means.
(E) Attendance at the second level review shall be limited to members of the review committee; the enrollee, or the enrollee's representatives, including any legal representative or attendant necessary for the enrollee to participate in or understand the proceedings, or both; the health care provider if the health care provider filed the grievance with enrollee consent; applicable witnesses; and appropriate representatives of the plan. Persons attending and their respective roles at the review shall be identified for the enrollee and the enrollee's representative.
(F) The plan shall provide, at no charge, at the request of the enrollee or the enrollee's representative, a plan employee, who has not participated in previous decisions to deny coverage for the issue in dispute, to aid the enrollee or the enrollee's representative in preparing the enrollee's second level grievance.
(G) Committee proceedings at the second level review shall be informal and impartial to avoid intimidating the enrollee or the enrollee's representative.
(H) The committee may not discuss the case to be reviewed prior to the second level review meeting.
(I) A committee member who does not personally attend the review meeting may not vote on the case unless that person actively participates in the review meeting by telephone or videoconference, and has the opportunity to review any additional information introduced at the review meeting prior to the vote.
(J) The plan may provide an attorney to represent the interests of the committee and to ensure the fundamental fairness of the review and that all disputed issues are adequately addressed. In the scope of the attorney's representation of the committee, the attorney representing the committee may not argue the plan's position, or represent the plan or plan staff.
(K) The committee may question the enrollee and the enrollee's representative, the health care provider if the provider filed the grievance with enrollee consent, and plan staff representing the plan's position.
(L) The committee shall base its decision solely upon the materials and testimony presented at the review. The committee may not base its decision upon any document obtained on behalf of the plan which sets out medical policies, standards or opinions or specifies opinions supporting the decision of the plan unless the plan has made available for questioning by the review committee or the enrollee, in person or by telephone, an individual, of the plan's choice, who is familiar with the policies, standards or opinions set out in the document.
(iv) The proceedings of the second level review committee, including the enrollee's comments and the comments of the enrollee's representatives and the health care provider if the provider filed the grievance with enrollee consent shall be either transcribed verbatim, summarized, or recorded electronically, and maintained as a part of the grievance record to be forwarded upon a request for an external grievance review.
(v) The plan shall complete the second level grievance review and arrive at its decision within 45 days of receipt of the request for the review.
(vi) The plan shall notify the enrollee, the enrollee's representative, and in the case of a grievance filed by a health care provider, the provider, of the decision of the second level review committee in writing within 5 business days of the committee's decision.
(vii) The plan shall include the basis for the decision and the procedures for the enrollee and the enrollee's representative or the health care provider to file a request for an external grievance review in its response to the enrollee, the enrollee's representative or health care provider, if the health care provider filed the grievance with the enrollee's consent including the following:
(A) A statement of the issue reviewed by the second level review committee.
(B) The specific reasons for the decision.
(C) References to the specific plan provisions on which the decision is based.
(D) If an internal rule, guideline, protocol, or other similar criterion was relied on in making the decision, either the specific rule, guideline, protocol or criterion, or instructions on how to obtain the internal rule, guideline, protocol, or criterion.
(F) An explanation of the scientific or clinical judgment for the decision, applying the terms of the plan to the enrollee's medical circumstances.
(G) An explanation of how to request an external grievance review.
(H) The time frames for the enrollee and the enrollee's representative, or the health care provider to file a request for an external grievance review. See § 9.707(b)(1) (relating to external grievance process).
(3) Same or similar specialty.
(i) Both the initial and second level grievance review shall include a licensed physician or an approved licensed psychologist, in the same or similar specialty as that which would typically manage or consult on the health care service in question.
(ii) The physician or approved licensed psychologist, in the same or similar specialty, need not personally attend at the review, but shall be included in the review meeting and discussion by written report, telephone or videoconference. A licensed physician or approved licensed psychologist who does not personally attend the review meeting may not vote on the grievance, unless that person actively participates in the review meeting by telephone or videoconference and has the opportunity to review any additional information introduced at the review meeting prior to the vote. A licensed physician or approved licensed psychologist not voting on the grievance shall provide input by written report as stated in subparagraph (iii).
(iii) If the licensed physician or approved licensed psychologist, in the same or similar specialty, will not be present or included by telephone or videoconference at the review attended by the enrollee or health care provider, the plan shall notify the enrollee, the enrollee's representative, and the health care provider, if the health care provider filed the grievance with the enrollee's consent, of that fact in advance of the review and of the right of the enrollee and the enrollee's representative, and the health care provider, if the health care provider filed the grievance with the enrollee's consent, to request a copy of the written report of the licensed physician or approved licensed psychologist. The plan shall provide the enrollee and the enrollee's representative, and the health care provider who filed the grievance with enrollee consent, upon written request, a copy of the report of the licensed physician or approved licensed psychologist at least 7 days prior to the review date.
(iv) The plan shall include in the report in subparagraphs (ii) and (iii) the credentials of the licensed physician or approved licensed psychologist reviewing the case. If the licensed physician or approved licensed psychologist is included in the review in subparagraph (ii), a copy of the credentials of the physician or approved licensed psychologist shall be provided to the enrollee, the enrollee's representative and to the health care provider, if the health care provider filed the grievance.
(v) For purposes of this section, if a specialist who is a physician or psychologist is requesting the health care service in dispute, the reviewing physician or psychologist must be a specialist in the same or similar specialty.
§ 9.706. Health care provider initiated grievances.
(a) A health care provider may, with the written consent of an enrollee that meets the requirements of subsection (g), file a written grievance with a plan.
(b) A health care provider may obtain written consent from an enrollee or the enrollee's legal representative to pursue a grievance in lieu of the enrollee at the time of treatment. A health care provider may not require an enrollee or the enrollee's legal representative to sign a document authorizing the health care provider to file a grievance as a condition of providing a health care service.
(c) Once a health care provider assumes responsibility for filing a grievance, the health care provider may not bill the enrollee or the enrollee's legal representative for services provided that are the subject of the grievance until the external grievance review has been completed or the enrollee or the enrollee's legal representative rescinds consent for the health care provider to pursue the grievance. If the health care provider chooses never to bill the enrollee or the enrollee's legal representative for the services provided that are the subject of the grievance, the health care provider may drop the grievance with notice to the enrollee and the enrollee's legal representative in accordance with subsection (g).
(d) If the health care provider elects to appeal an adverse decision of a CRE, the health care provider may not bill the enrollee or the enrollee's legal representative for services provided that are the subject of the grievance until the health care provider chooses not to appeal an adverse decision to a court of competent jurisdiction.
(e) The consent of an enrollee or the enrollee's legal representative to a health care provider to pursue a grievance shall be in writing, shall be automatically rescinded upon the failure of the health care provider to file or pursue a grievance under this subchapter and shall include each of the following elements:
(1) The name and address of the enrollee and of the policy holder, if they are different, the enrollee's date of birth and the enrollee's identification number.
(2) If the enrollee is a minor, or is legally incompetent, the name, address and relationship to the enrollee of the person who signs the consent for the enrollee.
(3) The name, address and plan identification number of the health care provider to whom the enrollee is providing the consent.
(4) The name and address of the plan to which the grievance will be submitted.
(5) An explanation of the specific service for which coverage was provided or denied to the enrollee to which this consent will apply.
(6) The following statements:
(i) The enrollee or the enrollee's representative may not submit a grievance concerning the services listed in this consent form unless the enrollee or the enrollee's legal representative rescinds consent in writing. The enrollee or the enrollee's legal representative has the right to rescind a consent at any time during the grievance process.
(ii) The consent of the enrollee or the enrollee's legal representative shall be automatically rescinded if the provider fails to file a grievance, or fails to continue to prosecute the grievance through the second level review process.
(iii) The enrollee or the enrollee's legal representative, if the enrollee is a minor or is legally incompetent, has read, or has been read this consent form, and has had it explained to his satisfaction. The enrollee or the enrollee's legal representative understands the information in the enrollee's consent form.
(7) The dated signature of the enrollee, or the enrollee's legal representative, and the dated signature of a witness.
(f) The enrollee may rescind consent to a health care provider, to file a grievance on behalf of the enrollee, at any time during the grievance process. If the enrollee rescinds consent, the enrollee may continue with the grievance at the point at which consent was rescinded. The enrollee may not file a separate grievance. An enrollee who has filed a grievance may, at any time during the grievance process, choose to provide consent to a health care provider to continue with the grievance instead of the enrollee. The legal representative of the enrollee may exercise the rights conferred upon the enrollee by this subsection.
(g) The provider, having obtained consent from the enrollee or the enrollee's legal representative to file a grievance, shall have 10 days from receipt of the standard written UR denial and any decision letter from a first, second or external review upholding the plan's decision to notify the enrollee or the enrollee's legal representative of its intention not to pursue a grievance.
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