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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2017


Regulatory Flexibility Act Form

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18 DE Admin. Code 1315
In the Department's September 1 notice, the Department proposed to amend the definition of "Authorized Representative" to implement Section 3 of HB 100. Section 3 of HB 100 amended 18 Del.C. §332 to now require that an insurance carrier, when informing a covered person of its right to appeal an adverse coverage decision, must inform the covered person of the availability of assistance from the Delaware Department of Justice in the preparation of an appeal of an adverse determination involving treatment for substance abuse. HB 100 was signed into law on May 30, 2017, became effective on September 27, 2017 and sunsets on January 1, 2020 unless expressly reauthorized prior to that date. The Department also proposed non-substantive amendments in punctuation and grammar throughout Sections 3 and 4.
RESPONSE: The Department appreciates the commenters' support.
RESPONSE: The Department agrees that the definition of "Authorized Representative" should not be limited to "an attorney retained or employed by the Delaware Department of Justice." In addition to the reasons stated by the commenters, HB 100 at lines 51-53 states that, "The written forms provided by the carrier must inform the covered person of the availability of assistance in the preparation of an appeal of an adverse determination involving treatment for substance abuse . . . (emphasis added)." This provision does not limit the assistance to legal assistance. Therefore, with this proposal the Department is amending the definition of "Authorized Representative" to reflect that assistance is available from the Department of Justice, not just legal assistance.
RESPONSE: The Department agrees with the comment. With this proposal, the Department will add the DOJ's website address and email address to the definition of "Authorized Representative."
RESPONSE: The Department disagrees that a notice in addition to the notice provided in 18 DE Admin. Code 1301-4 is necessary. Regulations 1301 and 1315 are complementary regulations; adding the same notice in each regulation would be redundant. With the re-proposal of amendments to Regulation 1301 published elsewhere in this edition of the Register of Regulations, the Department is proposing to amend the substance of the minimum required notices at 18 DE Admin. Code 1301-3.3.2 and 1301-4.0 to more fully describe the appeals options available to an insured.
The Department does not plan to hold a public hearing on the proposed amendments. The proposed amendments appear below and can also be viewed at the Department of Insurance website at http://insurance.delaware.gov/information/proposedregs/. The Department's docket number is DOI Docket No. 3572-2017. The re-proposal of companion amendments to Regulation 1301 may be viewed elsewhere in this edition of the Register of Regulations.
The purpose of this Regulation is to implement 18 Del.C. §332, which requires health insurance carriers to submit to arbitration disputes with a covered person or authorized representative regarding adverse determinations upon a request for arbitration by the covered person. This Regulation is promulgated pursuant to 18 Del.C. §§311 and 332; 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, 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.
Authorized representative” means an individual who whom a covered person willingly acknowledges to represent his interests during the internal review process and/or an appeal through the arbitration process or 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. In cases involving the existence or scope of private or public coverage for substance abuse treatment, assistance may be provided by or through the Delaware Department of Justice as an authorized representative, regardless of whether the covered person has been determined by a physician to be incapable of assigning the right of representation. The Department of Justice may be reached by calling 302-577-4206, by visiting http://attorneygeneral.delaware.gov/dojtreatmentassistance/, or by email at dojtreatmentassistance@state.de.us.
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(d) and 3565(d) 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(e) and 3565(e).
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.
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.
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.
3.1.1 A covered person or his authorized representative may request review of a carrier’s final coverage decision through arbitration by delivering a Petition for Arbitration, using the standardized form available from the Department by mail and on its web site, and all supporting documentation to the Department so that it the request for review is received by the Department within sixty days of receipt by the covered person of written notice of the carrier’s final coverage decision. The Department shall make available, by mail and on its web site, a standardized form for a Petition for Arbitration.
3.2.2.1 send Send a copy of the Response and supporting documentation to the covered person or his authorized representative by certified mail, return receipt requested;
3.2.2.2 deliver Deliver to the Department a proof of service confirming that a copy of the Response was mailed to the covered person or his authorized representative by certified mail, return receipt requested; and
3.2.2.3 deliver Deliver to the Department a $75.00 filing fee.
3.2.4.1 The Arbitrator may determine Determine the matter in the nature of a default judgment after establishing that the Petition is properly supported and was properly served on the carrier.; and
3.2.4.2 The Arbitrator may allow the re-opening of Allow the matter to be reopened to prevent a manifest injustice. A request for re-opening must be made by the covered person or his authorized representative no later than seven days after notice of the default judgment.
3.4.1 Upon receipt of a proper Response that conforms with the requirements of this regulation, the Department shall assign an Arbitrator from a panel of Arbitrators and shall schedule the matter for a hearing so that the Arbitrator can render a written decision within 45 days of the delivery to the Department of the Petition for Arbitration.
3.7.1 In arbitrations commenced pursuant to 18 Del.C. §332 and Section 3.0 of this Regulation, the carrier shall pay the costs of arbitration, any compensation paid to the arbitrator not to exceed $250, and any additional related fees which exceed the filing fee of $75 required to commence arbitration. In the event the covered person prevails, the $75 filing fee paid by the covered person will be refunded by the carrier.
4.1.1.1 the The date received;
4.1.1.2 name Name and plan identification number of the covered person on whose behalf the grievance was filed;
4.1.1.3 a A general description of the reason for the grievance; and
4.1.1.4 the The date and description of the final coverage decision.
4.1.2.1 the The date the Petition was filed;
4.1.2.2 name Name and plan identification number of the covered person on whose behalf the Petition was filed;
4.1.2.3 a A general description of the reason for the Petition; and
4.1.2.4 date Date and description of the Arbitrator’s decision or other disposition of the Petition.
4.2.2.1 the The total number of final coverage decisions upheld through arbitration; and
4.2.2.2 the The total number of final coverage decisions reversed through arbitration.
This Regulation shall become effective ten days after being published as a final regulation. The amendment to the definition of "authorized representative" shall become effective 10 days after being published as a final regulation and shall sunset on January 1, 2020 unless expressly reauthorized prior to that date.
Last Updated: December 31 1969 19:00:00.
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