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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsApril 2016

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(18 Del.C. §§311, 332, 6408, 6416 & 6417)
18 DE Admin. Code 1301
Proposed amended Regulation 1301 relating to Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims was published in the Delaware Register of Regulations on January 1, 2016. The comment period remained open until February 1, 2016. There was no public hearing on proposed amended Regulation 1301. Public notice of the proposed amended Regulation 1301 was published in the Register of Regulations in conformity with Delaware law.
1. 18 Del.C. §§311, 332, 6408, 6416, and 6417 require a regulation to set forth rules and procedural requirements which the Commissioner deems necessary to carry out the provisions of the Code.
Based on the provisions of 18 Del.C. §§311, 332, 6408, 6416, and 6417; and 29 Del.C. Ch. 101, and the record in this docket, I hereby adopt proposed amended Regulation 1301 as may more fully and at large appear in the version attached hereto to be effective 10 days after being published as final.
The text of proposed amended Regulation 1301 last appeared in the Register of Regulations Vol. 19, Issue 7, on page 564.
IT IS SO ORDERED this 1st day of April, 2016.
1301 Internal Review, Arbitration and Independent Utilization Review of Health Insurance Claims
1.1 The purpose of this Regulation is to implement 18 Del.C. §§332, 6408, 6416 and 6417 which require health insurance carriers to establish a procedure for internal review of a carrier’s adverse coverage determination and which require the Delaware Insurance Department to establish and administer procedures for arbitration and independent utilization review upon completion of the carrier’s internal review process. This Regulation also implements 18 Del.C. §§3349 and 3565, which require the Delaware Insurance Department to establish and administer procedures for arbitration of disputes between health insurance carriers and non-network providers of emergency care services. This Regulation is promulgated pursuant to 18 Del.C. §§311, 332, 3349, 3565 and 6408, 6416, and 6417 and 29 Del.C., Ch. 101. This Regulation should not be construed to create any cause of action not otherwise existing at law.
Adverse determination” means a decision by a carrier to deny (in whole or in part), reduce, limit or terminate health insurance benefits or a determination that an admission or continued stay, or course of treatment, or other covered health service does not satisfy the insurance policy’s clinical requirements for appropriateness, necessity, health care setting and/or level of care.
Appeal” means a request for external review of a carrier’s final coverage decision through the Independent Health Care Appeals Program.
Appropriateness of services” means an appeal classification for adverse determinations that are made based on identification of treatment as cosmetic, investigational, experimental or not an appropriate or preferred treatment method or setting for the condition for which treatment is sought.
Authorized representative” means an individual who a covered person willingly acknowledges to represent his interests during the internal review process, arbitration and/or an appeal through the Independent Health Care Appeals Program, including but not limited to a provider to whom a covered person has assigned the right to collect sums due from a carrier for health care services rendered by the provider to the covered person. A carrier may require the covered person to submit written verification of his consent to be represented. If a covered person has been determined by a physician to be incapable of assigning the right of representation, the covered person may be represented by a family member or a legal representative.
Carrier” means any entity that provides health insurance in this State. Carrier includes an insurance company, health service corporation, managed care organization and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. Carrier also includes any third-party administrator or other entity that adjusts, administers or settles claims in connection with health insurance.
Covered person” means an individual and/or family who has entered into a contractual arrangement, or on whose behalf a contractual arrangement has been entered into, with a carrier, pursuant to which the carrier provides health insurance for such person or persons.
Department” means the Delaware Insurance Department.
"Duration of an Emergency Medical Condition" means a period of time that begins with an Emergency Medical Condition and ends when the Emergency Medical Condition is either treated or stabilized as such stabilization is evidenced by post stabilization care [as referenced in 18 Del.C. §§3349(c)(3) and 3565(c)(3)] in a hospital where such post stabilization care is not within the definition of emergency care services.
Emergency care provider” means a provider of emergency care services including a provider who also provides health care services that aren't emergency care services.
Emergency care services” means those services identified in 18 Del.C. §§3349(c) and 3565(c) performed at any time during the Duration of an Emergency Medical Condition, including any covered service providing for the transportation of a patient to a hospital emergency facility for an emergency medical condition including air and sea ambulances so long as medical necessity criteria are met.
Emergency Medical Condition” shall have the meaning assigned to it by 18 Del.C. §§3349(d) and 3565(d).
Emergency medical condition” shall have the meaning assigned to it by 18 Del.C. §§3349(d) and 3565(d).
Final coverage decision” means the decision by a carrier at the conclusion of its internal review process upholding, modifying or reversing its adverse determination.
Grievance” means a request by a covered person or his authorized representative that a carrier review an adverse determination by means of the carrier’s internal review process.
Health care services” means any services or supplies included in the furnishing to any individual of medical care, or hospitalization or incidental to the furnishing of such care or hospitalization, as well as the furnishing to any individual of any and all other services for the purpose of preventing, alleviating, curing or healing human illness, injury, disability or disease.
Health insurance” means a plan or policy issued by a carrier for the payment for, provision of, or reimbursement for health care services.
Independent Health Care Appeals Program (“IHCAP”)” means a program administered by the Department that provides for an external review by an Independent Utilization Review Organization of a carrier’s final coverage decision based on medical necessity or appropriateness of services.
Independent Utilization Review Organization (“IURO”)” means an entity that conducts independent external reviews of a carrier’s final coverage decisions resulting in a denial, termination, or other limitation of covered health care services based on medical necessity or appropriateness of services.
Internal review process (“IRP”)” means a procedure established by a carrier for internal review of an adverse determination.
Medical necessity” means providing of health care services or products that a prudent physician would provide to a patient for the purpose of diagnosing or treating an illness, injury, disease or its symptoms in a manner that is:
Network carrier” is a carrier that has a written participation agreement with a provider to pay for emergency care services.
Network Emergency Care Provider” is a provider who has a written participation agreement with the carrier to provide emergency care services or governing payment of emergency care services.
"Non-Network Emergency Care Provider" is a provider who is not a Network Emergency Care Provider.
Pre-Authorization” is a requirement by a carrier or health insurance plan that states physicians need to submit a treatment plan or service request to the carrier for evaluation of appropriateness of the plan or service before treatment is rendered. It lets the insured and physician know in advance which procedures are covered.
Provider” means an individual or entity, including without limitation, a licensed physician, a licensed nurse, a licensed physician assistant and a licensed nurse practitioner, a licensed diagnostic facility, a licensed clinical facility, and a licensed hospital, who or which provides health care services in this State.
In addition to the requirements set forth in 18 Del.C. §332, the following provisions shall govern the internal review process of all carriers offering health insurance in Delaware:
3.3.2 The carrier shall provide the annual notice required by 18 Del.C. §332(c)(1) to covered persons either upon the policy renewal date, open enrollment date, or a set date for all covered persons, in the carrier’s discretion.
3.3.4 When a covered person’s dependents are also covered, a single notice to the principal covered person shall be sufficient under this section.
“You have the right to seek review of a claim denial through the Delaware Insurance Department. The Delaware Insurance Department also provides free informal mediation services which are in addition to, but do not replace, your right to review of this decision. You can contact the Delaware Insurance Department for information about claim denial review or mediation by calling the Consumer Services Division at 800‑282‑8611 or 302‑739‑4251. You may go to the Delaware Insurance Department at The Rodney Building, 841 Silver Lake Blvd., Dover, DE 19904 between the hours of 8:30 a.m. and 4:00 p.m. to personally discuss the review or mediation process. All requests for review through procedures established by the Delaware Insurance Department must be filed within 60 days from the date you receive this notice; otherwise, this decision will be final.”
5.4 Exemption from Arbitration. 18 Del.C. §§3349(b) and 3565(b) shall not apply to health insurance policies exempt from state regulation under federal law or regulation. On a quarterly basis, each carrier shall provide a list of exempt plan numbers to the Department. The Department shall maintain a public register of exempt plan numbers. The placement of an exempt plan number on the register shall constitute a rebuttable presumption that the policy plan is not subject to the provisions of this regulation. A carrier that clearly identifies whether a plan is either exempt or non-exempt on the face of an identification or membership card shall not be required to comply with the provisions of this section but only with respect to the plans for which such identification or membership cards display the group status. The failure of a carrier to either (1) provide the Department with a list of exempt plan numbers, or (2) clearly identify if a plan is exempt or non-exempt on the face of an identification or membership card shall constitute a rebuttable presumption that the plan is subject to the provisions of this regulation.
6.7.1 In arbitrations commenced under 18 Del.C. §332 and this Section 6.0, the carrier shall pay the costs and fees of arbitration which exceed the non-refundable filing fee of $75.00 required to commence arbitration.
7.13.1 In arbitrations commenced pursuant to 18 Del.C. §§3349 or 3565, the arbitrator shall allocate to each party a percentage of the costs of arbitration, including the filing fee of $75.00 required to commence arbitration, except that costs shall not include any professional fees, except the arbitrator's fee.
85.0 IHCAP Procedure
85.1 A covered person or his authorized representative may request review of a final coverage decision based, in whole or in part, on medical necessity or appropriateness of services by filing an appeal with the carrier within 60 days four months of receipt of the final coverage decision.
85.2 Upon receipt of an appeal, the carrier shall transmit the appeal electronically or by facsimile to the Department as soon as possible, but within no more than three business days, and shall send a hard copy of the request to the Department by mail.
85.3 Within five calendar days of receipt of an appeal, the Department shall assign an approved, impartial Independent Utilization Review Organization to review the final coverage decision and shall notify the carrier.
85.4 The assigned IURO shall, within five calendar days of assignment, notify the covered person or his authorized representative in writing by certified or registered mail that the appeal has been accepted for external review.
85.4.1 The notice shall include a provision stating that the covered person or his authorized representative may submit additional written information and supporting documentation that the IURO shall consider when conducting the external review.
85.4.2 The covered person or his authorized representative shall submit such written documentation to the IURO within seven calendar days following the date of receipt of the notice.
85.4.3 Upon receipt of any information submitted by the covered person or his authorized representative, the assigned IURO shall as soon as possible, but within no more than two business days, forward the information to the carrier.
85.4.4 The IURO must accept additional documentation submitted by the carrier in response to additional written information and supporting documentation from the covered person or his authorized representative.
85.5 Within seven calendar days after the receipt of the notification required in subsection 8.3 5.3, the carrier shall provide to the assigned IURO the documents and any information considered in making the final coverage decision.
85.5.1 If the carrier fails to submit documentation and information or fails to participate within the time specified, the assigned IURO may terminate the external review and make a decision, with the approval of the Department, to reverse the final coverage decision.
85.6 The external review may be terminated if the carrier decides to reverse its final coverage decision and provide coverage or payment for the health care service that is the subject of the appeal.
85.6.1 Immediately upon making the decision to reverse its final coverage decision, the carrier shall notify the covered person or his authorized representative, the assigned IURO, and the Department in writing of its decision. The assigned IURO shall terminate the external review upon receipt of the written notice from the carrier.
85.7 Within 45 days after the IURO’s receipt of an appeal, the assigned IURO shall provide written notice of its decision to uphold or reverse the final coverage decision to the covered person or his authorized representative, the carrier and the Department, which notice shall include the following information:
85.7.1 the qualifications of the members of the review panel;
85.7.2 a general description of the reason for the request for external review;
85.7.3 the date the IURO received the assignment from the Department to conduct the external review;
85.7.4 the date(s) the external review was conducted;
85.7.5 the date of its decision;
85.7.6 the principal reason(s) for its decision; and
85.7.7 references to the evidence or documentation, including practice guidelines and clinical review criteria, considered in reaching its decision.
85.8 The decision of the IURO is binding upon the carrier except as provided in 18 Del.C. §6416(b).
96.0 Expedited IHCAP Procedure
96.1 A covered person or his authorized representative may request an expedited appeal at the time the carrier issues its final coverage decision if the covered person suffers from a condition that poses an imminent, emergent or serious threat or has an emergency medical condition.
96.2 At the time the carrier receives a request for an expedited appeal, the carrier shall immediately transmit the appeal electronically or by facsimile to the Department, and shall send a hard copy to the Department by mail but within no more than three business days.
96.3 If the Department determines that the review meets the criteria for expedited review, the Department shall assign an approved, impartial IURO to conduct the external review and shall notify the carrier.
96.4 At the time the carrier receives the notification of the assigned IURO, the carrier shall provide or transmit all necessary documents and information considered in making its final coverage decision to the assigned IURO electronically, by telephone, by facsimile or any other available expeditious method.
96.5 As expeditiously as the covered person’s medical condition permits or circumstances require, but in no event more than 72 hours after the IURO’s receipt of the expedited appeal, the IURO shall make a decision to uphold or reverse the final coverage decision and immediately notify the covered person or his authorized representative, the carrier, and the Department of the decision.
96.6 Within two one calendar days of the immediate notification, the assigned IURO shall provide written confirmation of its decision to the covered person or his authorized representative, the carrier, and the Department.
96.7 The decision of the IURO is binding upon the carrier except as provided in 18 Del.C. §6416(b).
107.0 Refusal or Dismissal of IHCAP Appeal
107.1 The Department may refuse to accept any appeal that is not timely filed or does not otherwise meet the criteria for IHCAP review. If the subject of the appeal is appropriate for arbitration, the Department shall advise the covered person or his authorized representative of the arbitration procedure. If the subject of the appeal is appropriate for arbitration, the appeal shall be treated as a Ppetition for Aarbitration for purposes of determining whether the Petition is timely filed in accordance with section 6.1.1 of this regulation.
107.2 Carrier’s motion to dismiss an IHCAP appeal.
107.2.1 A carrier may move to dismiss an IHCAP appeal if the carrier believes:
107.2.1.1 the appeal concerns a benefit that is the subject of an express written exclusion from the covered person’s health insurance;
107.2.1.2 the appeal is appropriate for arbitration; or
107.2.1.3 the appeal should be dismissed because it is inappropriate for IHCAP review as explained in a sworn statement by an officer of the carrier.
107.2.2 The carrier’s motion to dismiss must be made in writing at the time the carrier transmits the appeal to the Department and must include any necessary supporting documentation.
107.2.3 The Department shall review the appeal and motion for dismissal and may, in its discretion:
107.2.3.1 dismiss the appeal and notify the covered person or his authorized representative in writing that the appeal is inappropriate for the IHCAP; or
107.2.3.2 appoint an IURO to conduct a full external review.
118.0 IHCAP Costs
118.1 All costs for IHCAP review by an IURO, whether the review is preliminary, or partially or fully completed, shall be borne by the carrier.
118.2 The carrier shall reimburse the Department for the cost of the IHCAP review within 90 calendar days of receipt of the decision by the IURO or within 90 days of termination of review by the IURO by other means.
129.0 Approval of Independent Utilization Review Organizations
129.1 The Department shall approve IUROs eligible to be assigned to conduct IHCAP reviews as provided in 18 Del.C. §6417(a).
129.2 An IURO seeking approval to conduct IHCAP reviews shall submit an application to the Department that includes the information required by 18 Del.C. §§6417(c)(1), 6417(c)(2), 6417(c)(4) and 6417(c)(4)(d), and a copy of its certification by URAC or other nationally recognized certification organization.
129.3 The Department shall maintain a current list of approved IUROs.
130.0 Carrier Recordkeeping and Reporting Requirements
130.1 A carrier and IURO shall maintain written or electronic records for five years, after completion of the appeal process, documenting all grievances, Petitions for Arbitration and appeals for IHCAP review including, at a minimum, the following information:
130.1.1 For each grievance:
130.1.1.1 the date received;
130.1.1.2 name and plan identification number of the covered person on whose behalf the grievance was filed;
130.1.1.3 a general description of the reason for the grievance; and
130.1.1.4 the date and description of the final coverage decision.
130.1.32 For each appeal for IHCAP review:
130.1.32.1 the date received;
130.1.32.2 name and plan identification number of the covered person on whose behalf the appeal was filed;
130.1.32.3 a general description of the reason for the appeal; and
130.1.32.4 date and description of the IURO’s decision or other disposition of the appeal.
130.2 A carrier shall file with its annual report to the Department the following information:
130.2.1 The total number grievances filed.
130.2.32 The total number of IHCAP appeals filed, with a breakdown showing:
130.2.32.1 the total number of final coverage decisions upheld through IHCAP; and
130.2.32.2 the total number of final coverage decisions reversed through IHCAP.
130.3 A carrier shall make available to the Department upon request any of the information specified in the foregoing subsections 130.1 and 130.2, and other information regarding its internal review process including but not limited to the written IRP procedures and forms the carrier distributes to covered persons.
141.0 Non-Retaliation
141.1 A carrier shall not disenroll, terminate or in any way penalize a covered person who exercises his rights to file a grievance, Petition for Arbitration or appeal for IHCAP review solely on the basis of such filing.
141.2 A carrier shall not terminate or in any way penalize a provider with whom it has a contractual relationship and who exercises, on behalf of a covered person, the right to file a grievance, Petition for Arbitration or appeal for IHCAP review solely on the basis of such filing.
152.0 Confidentiality of Health Information
15.1 Nothing in this Regulation shall supersede any federal or state law or regulation governing the privacy of health information.
164.0 Effective Date
16.1 This regulation shall become effective on July 11, 2007 10 days after being published as a final regulation.
Last Updated: December 31 1969 19:00:00.
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