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.
Authority The provisions of this Subchapter I issued under Article XXI of The Insurance Company Law of 1921 (40 P. S. § § 991.2101—991.2193), unless otherwise noted.
Source The provisions of this Subchapter I adopted June 8, 2001, effective June 9, 2001, 31 Pa.B. 3043, unless otherwise noted.
Cross References This subchapter cited in 28 Pa. Code § 9.601 (relating to applicability).
§ 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.
Cross References This section cited in 28 Pa. Code § 9.703 (relating to internal complaint process); 28 Pa. Code § 9.705 (relating to internal grievance process); and 28 Pa. Code § 9.724 (relating to plan-IDS contracts).
§ 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 representative 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.
Cross References This section cited in 28 Pa. Code § 9.703 (relating to internal complaint process).
§ 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 representative, 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.
Cross References This section cited in 28 Pa. Code § 9.709 (relating to expedited review); and 28 Pa. Code § 9.753 (relating to time frames for UR).
§ 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.
Cross References This section cited in Pa. Code § 9.702 (relating to complaints and grievances).
§ 9.707. External grievance process.
(a) The plan shall establish and maintain an external grievance process by which an enrollee, or a health care provider with the written consent of the enrollee, may request an external review of a denial of a second level grievance following receipt of the second level grievance review decision.
(b) The external grievance process shall adhere to the following standards:
(1) An enrollee, the enrollee’s representative or the health care provider who filed the grievance shall have 15 days from receipt of the second level grievance review decision to file a request for an external review with the plan. If the request for an external grievance is being filed by a health care provider, the health care provider shall provide the name of the enrollee involved and a copy of the enrollee’s written consent for the health care provider to file the grievance.
(2) Within 5 business days of receiving the external grievance from the enrollee or a health care provider filing a grievance with enrollee consent, the plan shall notify the Department, the enrollee and the health care provider if the health care provider has filed the grievance with enrollee consent, and a CRE that conducted the internal grievance review that a request for an external grievance review has been filed.
(3) The plan’s notification to the Department shall include a request for assignment of a CRE.
(4) Along with notification and the request for assignment of a CRE, and the information in paragraph (5), the plan shall provide the Department with the name, title and phone numbers of both a primary and alternative external grievance coordinator. One of these individuals shall be available to the Department so that expeditious communication may be had regarding the assignment of a CRE both for the purpose of performing external grievance reviews and of tracking the status of such reviews.
(5) The plan’s request to the Department for assignment of a CRE shall include the following:
(i) The enrollee’s name, address and telephone number.
(ii) If the request for an external grievance is being filed by a health care provider, identifying information for that provider, and a copy of the enrollee’s written consent to the health care provider to file the grievance.
(iii) The name of the plan.
(iv) The enrollee’s plan identification number.
(v) The enrollee’s appeal from the second level grievance review decision.
(vi) A copy of the decision of the second level review committee.
(vii) Correspondence from the plan relating to the matter in question.
(viii) Other reasonably necessary supporting documentation, which may include UR criteria, technology assessments, care notes, information submitted by clinicians regarding the enrollee’s health status as it relates to the matter being reviewed, opinions from specialists in a same or similar specialty or peer reviewers and information submitted by the enrollee, the enrollee’s representative and the treating health care providers.
(ix) If the external grievance is being requested by a health care provider, verification that the plan and the health care provider have both established escrow accounts in the amount of half the anticipated cost of the review.
(6) Within 15 days of receipt of the request for an external grievance review, the plan shall forward to the CRE assigned to perform the external grievance review the written documentation regarding the denial, including the following:
(i) The decision.
(ii) All reasonably necessary supporting information.
(iii) A summary of applicable issues.
(iv) The contractual language supporting the denial including the plan’s definition of ‘‘medical necessity’’ used in the internal grievance reviews.
(7) Within the same 15-day period as provided by paragraph (6), the plan shall provide the enrollee, the enrollee’s representative, or the health care provider if the health care provider filed the grievance with consent, with the list of documents being forwarded to the CRE for the external review.
(8) The enrollee, the enrollee’s representative, or the health care provider if the health care provider filed the grievance with enrollee consent, within 15 days of receipt of notice that the request for an external grievance review was filed with the plan, may supply additional information to the CRE for consideration in the external review but shall simultaneously provide copies of the information to the plan so that the plan has an opportunity to consider the additional information.
(c) Within 2-business days of receiving a request for an external grievance review, the Department will assign a CRE from its list of approved CREs on a rotation basis and will provide notice of the CRE assignment to the plan, the enrollee and the enrollee’s representative, the health care provider, if the grievance was filed with enrollee consent, and the CRE.
(d) The Department will make available additional information from the CRE’s accreditation application to the plan, the enrollee and the enrollee’s representative, or the health care provider that filed a grievance with enrollee consent upon request. The Department will include in the notice issued under subsection (c), instructions on how to contact the Department for this information.
(e) If the Department fails to select a CRE within 2 business days of receipt of a request for an external grievance review, the plan may designate a CRE to conduct a review from the list of CREs approved by the Department. The plan may not select a CRE that has a current contract or is negotiating a contract with the plan or its affiliates to perform UR, or is otherwise affiliated with the plan or its affiliates to conduct the external grievance review.
(f) Each party has 7 business days from the date on the notice of assignment of the CRE to object orally or in writing to the Department about the CRE assigned whether the CRE has been assigned by the Department, or designated by the plan under subsection (e) based on conflict of interest. For purposes of this section, conflict of interest shall mean that the CRE has or is proposing to enter into a contract with the plan or an affiliate of the plan to perform UR, or is otherwise affiliated with the plan or its affiliates. The objecting party may request the assignment of another CRE.
(g) If a party objects, the Department will assign a second CRE in accordance with subsection (c). The parties may object to the second CRE in accordance with this section.
(h) If either party objects to the second CRE assigned, the 60-day time period allowed for the CRE’s review under § 9.708(a) (relating to external grievance reviews by CREs) will be calculated from the date on which the CRE is accepted by both parties.
(i) The Department will assign a uniform tracking number, which shall be utilized by the plan, CRE, enrollee and the enrollee’s representative, and health care provider who filed the grievance with enrollee consent to communicate with or report data to the Department.
(j) The plan shall authorize a health care service and pay a claim determined to be medically necessary and appropriate by the CRE whether or not the plan has appealed the CRE’s decision to a court of competent jurisdiction.
(k) If the CRE’s decision in an external grievance review filed by a health care provider is against the health care provider in full, the health care provider shall pay the fees and costs associated with the external grievance. Regardless of the identity of the grievant, if the CRE’s decision is against the plan in full or in part, the plan shall pay the fees and costs associated with the external grievance review. If the enrollee or the enrollee’s representative files an external grievance, and the plan prevails, the plan shall pay the fees and costs. For purposes of this section, fees and costs do not include attorney’s fees.
Cross References This section cited in Pa. Code § 9.705 (relating to internal grievance process); 28 Pa. Code § 9.708 (relating to external grievance reviews by CREs); 28 Pa. Code § 9.753 (relating to time frames for UR).
§ 9.708. External grievance reviews by CREs.
(a) The assigned CRE shall review and issue a written decision within 60 days of the filing of the request for an external grievance review. The decision shall be sent to the enrollee and the enrollee’s representative, the health care provider, if the health care provider filed the grievance with enrollee consent, the plan, and the Department. The decision shall include the credentials of the individual reviewer, a list of the information considered in reaching the decision, the basis and clinical rationale for the decision, a brief statement of the decision, and the statement that the enrollee, and the enrollee’s representative, or the health care provider have 60 days from receipt of the decision to appeal to a court of competent jurisdiction.
(b) The assigned CRE shall review the second level grievance review decision based on whether the health care service denied by the internal grievance process is medically necessary and appropriate under the terms of the plan.
(c) The assigned CRE shall review all information considered by the plan in reaching any prior decision to deny coverage for the health care service in question, and information provided in § 9.707 (relating to external grievance process).
(d) The assigned CRE’s decision shall be made by either of the following:
(1) One or more physicians certified by a board approved by the American Board of Medical Specialties or the American Board of Osteopathic Specialties, practicing within the same or similar specialty that typically manages or recommends treatment for the health care service being reviewed.
(2) One or more licensed physicians or approved licensed psychologists in active clinical practice in the same or similar specialty that typically manages or recommends treatment for the health care service being reviewed.
(e) In reviewing a grievance decision relating to emergency services, the CRE shall utilize the emergency service standards of Act 68 and this chapter, the prudent layperson standard and the enrollee’s certificate of coverage.
Cross References This section cited in 28 Pa. Code § 9.707 (relating to external grievance process).
§ 9.709. Expedited review.
(a) A plan shall make an expedited review procedure available to enrollees if the enrollee’s life, health or ability to regain maximum function would be placed in jeopardy by delay occasioned by the review process in this subchapter.
(b) An enrollee may request from the plan an expedited review at any stage of the plan’s review process if the enrollee’s life, health or ability to regain maximum function would be placed in jeopardy by delay occasioned by the review process in this subchapter.
(c) In order to obtain an expedited review, an enrollee shall provide the plan with a certification, in writing, from the enrollee’s physician that the enrollee’s life, health or ability to regain maximum function would be placed in jeopardy by delay occasioned by the review process in this subchapter. The certification shall include a clinical rationale and facts to support the physician’s opinion. The plan shall accept the physician’s certification, and provide an expedited review.
(d) The plan’s internal expedited review process shall be bound by the same rules and procedures as the second level grievance review process with the exception of the following:
(1) The time frames.
(2) The requirements of § 9.705(c)(2)(iii)(b), (c) and (i) (relating to internal grievance process). If the plan cannot accommodate the enrollee as to time and distance, or have the committee physically present at the review, the plan shall hold the hearing telephonically and ensure that all information presented at the hearing is read into the record.
(3) The requirements of § 9.705(c)(3)(iii) with respect to providing the report 7 days prior to the review. The plan shall provide a copy of the report to the enrollee prior to the hearing if possible. If not, the plan may read the report into the record at the hearing, and shall provide the enrollee with a copy of the report at that time.
(4) It is the responsibility of the enrollee or the health care provider to provide information to the plan in an expedited manner to allow the plan to conform to the requirements of this section.
(e) A plan shall conduct an expedited internal review and issue its decision within 48 hours of receipt of the enrollee’s request for an expedited review accompanied by a physician’s statement in accordance with subsection (c).
(f) The notification to the enrollee shall state the basis for the decision, including any clinical rationale, and the procedure for obtaining an expedited external review.
(g) The enrollee has 2 business days from the receipt of the expedited internal review decision to contact the plan to request an expedited external review.
(h) Within 24 hours of receipt of the enrollee request for an expedited external review, the plan shall submit a request for an expedited external review to the Department by Fax transmission or telephone call. The Department will make information available to the plan to enable the plan to have direct access to a CRE on weekends and State holidays.
(i) The Department will assign a CRE within 1 business day of receiving the request for an expedited review.
(j) When assigning a CRE, the Department will rely on information provided by the CRE as to any affiliations or contractual relationships with plans so as to avoid conflicts of interest.
(k) In all cases, the plan shall transfer a copy of the case file to the CRE for receipt on the next business day and the CRE shall have 2 business days to issue a decision.
§ 9.710. Approval of plan enrollee complaint and enrollee and provider grievance systems.
(a) The Department will review the plan’s enrollee complaint and grievance systems under its authority to review the operations of the plan and its quality assurance systems, and complaint and grievance resolution systems to ensure that they meet the requirements of Act 68 and this chapter.
(b) If changes are made by the plan that have the potential to impact the complaint or grievance process or the outcome of cases, the plan shall submit a copy of the proposed changes to the Department for prior review 60 days before the plan intends to implement the changes.
(c) Complaint and grievance procedures for special populations, such as Medicaid and Medicare HMO enrollees, shall comply with Act 68 to the extent permitted by Federal law and regulation.
Authority The provisions of this § 9.710 issued under Article XXI of The Insurance Company Law of 1921 (40 P. S. § § 991.2101—991.2193); the HMO Act (40 P. S. § § 1551—1568); and section 630 of the PPO Act (40 P. S. § 764a).
Cross References This section cited in 28 Pa. Code § 9.702 (relating to complaints and grievances).
§ 9.711. Informal dispute resolution systems and alternative dispute resolution systems.
(a) Informal dispute resolution systems.
(1) A plan and a health care provider may agree to an informal dispute resolution system for the review and resolution of disputes between the health care provider and the plan. These disputes include denials based on procedural errors and administrative denials involving the level or types of health care service provided.
(2) Procedural errors and administrative denials in which the enrollee is held financially harmless by virtue of the provider contract or when the enrollee has never been advised by the plan in writing that continued health care services would not be covered benefits, will not be automatically viewed as grievances for the purposes of this subchapter and may be addressed by informal dispute resolution systems.
(3) The informal dispute resolution system agreed upon by the plan and its providers shall be included in the health care provider contract with the plan, and shall be enforceable.
(b) Alternative dispute resolution systems.
(1) To be acceptable to the Department, an alternative dispute resolution system shall:
(i) Be impartial.
(ii) Include specific and reasonable time frames in which to initiate appeals, receive written information, conduct hearings and render decisions.
(iii) Provide for final review and determination.
(2) An alternative dispute resolution system agreed upon by a plan and its participating providers shall be included in the health care provider contracts and shall be final and binding on both the plan and the health care provider.
(3) An alternative dispute resolution system may not be used for any extenal grievance filed by an enrollee.
Authority The provisions of this § 9.711 issued under Article XXI of The Insurance Company Law of 1921 (40 P. S. § § 991.2101—991.2193); the HMO Act (40 P. S. § § 1551—1568); and section 630 of the PPO Act (40 P. S. § 764a).
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