DEPARTMENT OF INSURANCE

Office of the Commissioner

Statutory Authority: 18 Delaware Code, Sections 311, 3342B, and 3556A (18 Del.C. §§311, 3342B, & 3556A)

18 DE Admin. Code 1319

PROPOSED

PUBLIC NOTICE

1319 Arbitration of Disputes Between Carriers and Primary Care and Chronic Care Management Providers

A. Type of Regulatory Action Required

Proposal of amendments to an existing regulation.

B. Synopsis of Subject Matter of the Regulation

On January 1, 2019, the Delaware Department of Insurance (the Department) adopted Regulation 1319, Arbitration of Disputes between Carriers and Primary Care and Chronic Care Management Providers. The Regulation implements that portion of Senate Bill 227 (as amended by Senate Amendment No. 1 and House Amendment No. 1 as amended by House Amendment No. 1 to House Amendment No. 1 (collectively SB 227)) that requires the Department to “arbitrate disagreements regarding rates under this section” for which the parties involved in the dispute must pay, and to “adopt regulations to implement the requirements of this section no later than 90 days after the effective date of this Act.”

The Insurance Code at 18 Del.C. §333(g) and (h) also governs arbitration of disputes between carriers and providers, providing that:

• The Commissioner shall establish a schedule of fees for arbitration, which shall not exceed $100 per arbitration;

• The arbitrator may award to the health-care provider the cost of filing the arbitration if the health-care provider should prevail;

• The cost of arbitration shall be payable to the Department of Insurance, and shall be maintained in a special fund identified as the “Arbitration Fund,” which shall remain separate and segregated from the General Fund; and

• The compensation paid to the arbitrator shall be payable from the Arbitration Fund.

Regulation 1319 at subsection 4.7.1 does not track the requirements of 18 Del.C. §333(g) and (h). Rather, it provides that the arbitrator may charge the parties the cost of the arbitration, which the arbitrator may bill at the arbitrator’s actual time spent and direct expenses incurred to conduct the arbitration and may allocate to each party a percentage of the arbitrator’s costs of conducting the arbitration. Accordingly, the Department proposes to strike this provision and to replace it with language that tracks 18 Del.C. §333(g) and (h).

The Department is also making grammatical changes as warranted.

The Delaware Code authority for the proposed amendments is 18 Del.C. §§311, 3342B, and 3556A and 29 Del.C. §10115.

Any person may file written comments, suggestions, briefs, and compilations of data or other materials concerning the proposed new regulation. Any written submission in response to this notice and relevant to the proposed new regulation must be received by the Department of Insurance no later than 4:30 p.m., June 1, 2020 by mailing to:

Delaware Department of Insurance

Attn.: Leslie W. Ledogar, Esq., Regulatory Specialist

Docket No. 4303-2020

1351 West North St., Ste. 101

Dover, DE 19904

Comments may also be emailed to leslie.ledogar@delaware.gov.

The Department does not plan to hold a public hearing on the proposed amendments to Regulation 1319. The proposed amendments to Regulation 1319 appear below and can also be viewed on the Department’s website at http://insurance.delaware.gov/information/proposedregs/.

1319 Arbitration of Disputes between Carriers and Primary Care and Chronic Care Management Providers

1.0 Purpose and Statutory Authority

1.1 The purpose of this regulation is to implement 18 Del.C. §§3342B and 3556A, which require health insurance carriers to submit to arbitration any dispute with a provider regarding a carrier’s final reimbursement decision for primary care and chronic care management services.

1.2 This Regulation regulation is promulgated pursuant to 18 Del.C. §§311, 3342B, and 3556A and 29 Del.C. Ch. 101. This Regulation regulation should not be construed to create any cause of action not otherwise existing at law.

2.0 Definitions

"Carrier" or "insurance carrier" means any entity that provides health insurance in this State. "Carrier" includes an insurance company, health service corporation, health maintenance 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 benefit plans.

"Chronic care management" means the services in the Chronic Care Management Services program, as administered by the Centers for Medicare and Medicaid Services, and includes Current Procedural Terminology ("CPT") codes 99487, 99489, and 99490.

"Department" means the Delaware Department of Insurance.

"Medicare" means the federal Medicare Program (U.S. Public Law 89-87, as amended) [42 U.S.C. § 64 1395 et seq. 42 USCS, Ch. 7, XVIII USCS].

"Primary care" means health care provided by a primary care provider.

"Primary care provider" means any physician or individual licensed under Title 24 of the Delaware Code to provide health care, with whom the patient has initial contact and by whom the patient may be referred to a specialist. Examples of a primary care provider include primary care physicians (including an obstetrician - gynecologist pursuant to 18 Del.C. §§3342 and 3556, to the extent that provider is serving in the role as a primary care provider), certified nurse practitioners, physician assistants, and other front-line practitioners for chronic care management and primary care who provide primary care in a family, pediatrics, internal medicine, or a geriatrics practice.

"Provider" means a provider of chronic care management or a primary care provider.

3.0 Notice of Final Reimbursement Decision

3.1 A carrier shall notify a provider, in writing, of a carrier's final decision regarding reimbursement for an individual claim, procedure or service, if the decision does not authorize reimbursement of the provider's charge in accordance with 18 Del.C. §§3342B and 3556A. Such notice may be separate from or a part of the written notice of the carrier's decision.

3.2 Any notice given to a provider pursuant to subsection 3.1 shall:

3.2.1 Be in writing; and

3.2.2 Give the provider notice of the provider's right to arbitration through the Department's arbitration program, by including, at a minimum, the following language:

"You have the right to seek review of our decision regarding the amount of your reimbursement. The Delaware Insurance Department provides claim arbitration services which are in addition to, but do not replace, any other legal or equitable right you may have to a review of this decision or any right of review based on your contract with us. You can contact the Delaware Insurance Department for information about arbitration by calling the Arbitration Secretary at 302-674-7322 or by sending an email to: DOI-arbitration@delaware.gov. All requests for arbitration must be filed within 60 days from the date you receive this notice; otherwise, this decision will be final."

23 DE Reg. 314 (10/01/19)

4.0 Arbitration Procedures

4.1 Provider Petition for Arbitration.

4.1.1 A provider or his or her a provider’s authorized representative may request that the Department review a carrier's final reimbursement decision through arbitration by complying with all of the following requirements:

4.1.1.1 Complete in full the Department's standard Petition for Arbitration form, which may be downloaded from the Department's website;

4.1.1.2 Attach to the completed Petition for Arbitration all supporting documentation;

4.1.1.3 Include a filing fee in the form of a check that is made payable to the Department of Insurance, which shall be in the amount of $75 and which shall be maintained by the Department in a special fund identified as the “Arbitration Fund”;

4.1.1.4 File the original and one copy of the Petition for Arbitration and the appropriate filing fee with the Department, at the following address:

Delaware Department of Insurance

ATTN: Arbitration Secretary

1351 West North Street, Suite 101, 101

Dover, DE 19904

4.1.1.5 Ensure that the Petition for Arbitration is timely submitted so that it is received by the Department no later than 60 days after the provider received the carrier's final reimbursement decision.

4.1.2 A provider who requests Department review under subsection 4.1.1 shall also:

4.1.2.1 Send a copy of the Petition petition and supporting documentation to the carrier by certified mail, return receipt requested; and

4.1.2.2 Deliver to the Department a Proof proof of Service service confirming that a copy of the Petition petition was sent to the carrier by certified mail, return receipt requested.

4.1.3 The Department may refuse to accept any Petition petition that is not timely filed or does not otherwise meet the criteria for arbitration.

4.2 Carrier Response to Petition for Arbitration

4.2.1 Within 20 days of receipt of the Petition for Arbitration, the carrier shall deliver to the Department an original and one copy of a Response response to the Petition for Arbitration, to which it shall attach all supporting documents or other evidence.

4.2.2 At the time of delivering the Response response to the Department, the carrier shall also:

4.2.2.1 Send a copy of the Response response and supporting documentation to the provider or his or her the provider’s authorized representative by first class U.S. mail, postage prepaid; and

4.2.2.2 Deliver to the Department a Proof proof of Service service confirming that a copy of the Response response was mailed to the health care provider or his or her the health care provider’s authorized representative. representative; and

4.2.2.3 Deliver to the Department a $75.00 filing fee, which shall be maintained by the Department in the Arbitration Fund.

4.2.3 The Department may return any non-conforming Response response to the carrier.

4.3 Appointment of Arbitrator

4.3.1 Upon receipt of a petition filed in proper form, the Department shall assign an Arbitrator arbitrator.

4.3.2 The Arbitrator arbitrator shall be of suitable background and experience to decide the matter in dispute and shall not be affiliated with any of the parties or with the patient whose care is at issue in the dispute.

4.4 Summary Disposition of Petition by the Arbitrator

4.4.1 An Arbitrator arbitrator may summarily dispose of a Petition petition if:

4.4.1.1 The carrier fails to timely deliver a Response response; or

4.4.1.2 The Arbitrator arbitrator determines that the Petition petition is meritless on its face or that the subject of the Petition petition is not appropriate for arbitration under this regulation.

4.4.2 If the carrier fails to timely respond to a Petition for Arbitration, the Department may, after verifying proper service and with written notice to the parties, assign the matter to the next scheduled Arbitrator arbitrator for summary disposition.

4.4.2.1 The Arbitrator arbitrator may determine the matter in the nature of by issuing a default judgment after establishing that the Petition petition is properly supported and was properly served on the carrier.

4.4.2.2 The Arbitrator arbitrator may allow the re-opening of the matter to prevent a manifest injustice. A carrier must make a request for re-opening no later than fifteen days after notice of the default judgment.

4.4.3 If the Arbitrator arbitrator determines that the subject of the Petition petition is not appropriate for arbitration under this regulation or is meritless on its face, the Arbitrator arbitrator may summarily dismiss the Petition petition and provide notice of such dismissal to the parties.

4.5 Arbitration Hearing

4.5.1 The Arbitrator arbitrator shall schedule the matter for a hearing in a timeframe that will allow the Arbitrator arbitrator to render a written decision within 45 days after the delivery to the Department of the Petition for Arbitration. The Arbitrator arbitrator shall give notice of the arbitration hearing date to the parties at least 10 days prior to the hearing. The parties are not required to appear and may rely on the papers delivered to the Department.

4.5.2 Testimony at the arbitration hearing is to be limited, to the maximum extent possible, to statements by each party in which they are afforded the opportunity to explain their view of the previously submitted evidence and to answer any questions posed by the Arbitrator arbitrator.

4.5.3 If the Arbitrator arbitrator allows any testimony in addition to that provided for in subsection 4.5.2 of this regulation, the Arbitrator arbitrator shall allow brief cross-examination or other response by the opposing party.

4.5.4 The Delaware Uniform Rules of Evidence “Delaware Uniform Rules of Evidence” will be used for general guidance but will not be strictly applied.

4.5.5 Because the testimony may involve evidence relating to personal health information that is confidential and protected by state or federal laws from public disclosure, the arbitration hearing shall be closed to the public.

4.5.6 The Arbitrator arbitrator may contact, with the parties' consent, individuals or entities identified in the papers by telephone, in or outside of the parties' presence, for information the Arbitrator arbitrator deems necessary to resolve the matter.

4.5.7 The Arbitrator arbitrator shall consider the matter based on the submissions of the parties and information otherwise obtained by the Arbitrator arbitrator in accordance with this regulation. The Arbitrator arbitrator shall not consider any matter not contained in the original or supplemental submissions of the parties that has not been provided to the opposing party with at least five days notice, except claims of a continuing nature that are set out in the filed papers.

4.6 Arbitrator's Written Decision

4.6.1 The Arbitrator arbitrator shall render his or her the arbitrator’s decision in writing and shall mail a copy of the decision to each of the parties and to the Department within 45 days of the filing of the Petition petition.

4.6.2 If the Arbitrator arbitrator determines that the carrier's final reimbursement decision provides reimbursement to the provider in an amount that is not sufficient, insufficient amount, the carrier shall reimburse the provider in the amount that the Arbitrator arbitrator so determines, within 45 days from the date of the Arbitrator’s arbitrator’s decision.

4.7 Arbitration Costs

4.7.1 The Arbitrator shall charge to the parties the cost of the arbitration, which the Arbitrator shall bill at the Arbitrator's actual time spent and direct expenses incurred to conduct the arbitration. Department shall pay the arbitrator $100 for each arbitration, which shall be payable from the Arbitration Fund.

4.7.2 The Arbitrator may allocate to each party a percentage of the Arbitrator's costs to conduct the arbitration.

4.7.3 The Arbitrator arbitrator may award to the health care provider the filing fee, if the health care provider is the prevailing party in the arbitration.

23 DE Reg. 314 (10/01/19)

5.0 Carrier Recordkeeping and Reporting Requirements

5.1 A carrier shall maintain written or electronic records for five years after completion of each arbitration case, documentation of each Petition for Arbitration including, at a minimum, the following information:

5.1.1 The date the Petition petition was filed;

5.1.2 The name and identifying information of the health care provider on whose behalf the Petition petition was filed;

5.1.3 A general description of the reason for the Petition petition; and

5.1.4 The date and description of the arbitration decision or other disposition of the Petition petition.

5.2 A carrier shall file with its annual report to the Department the total number of Petitions for Arbitration filed, with a breakdown showing:

5.2.1 The total number of final reimbursement decisions upheld through arbitration; and

5.2.2 The total number of final reimbursement decisions reversed through arbitration.

6.0 Non-Retaliation

A carrier shall not terminate or in any way penalize a provider with whom it has a contractual relationship and who exercises the right to file a Petition for Arbitration, solely on the basis of such filing.

7.0 Confidentiality of Health Information

Nothing in this Regulation regulation shall supersede any federal or state law or regulation governing the privacy of health information.

8.0 Computation of Time

8.1 In computing any period of time prescribed or allowed by this Regulation regulation, the day of the act or event after which the designated period of time begins to run shall not be included.

8.2 The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the Department is closed, in which event the period shall run until the end of the next day on which the Department is open.

8.3 When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation.

8.4 As used in this section, "legal holidays" means those days provided by statute or appointed by the Governor or the Chief Justice of the State of Delaware.

9.0 Effective Date and Expiration Date

This Regulation regulation shall become effective upon adoption and shall expire on August 29, 2021, unless otherwise readopted, with or without amendments. The amendments to this regulation shall become effective 10 days after publication of a final order of adoption.

22 DE Reg. 605 (01/01/19)

23 DE Reg. 314 (10/01/19)

23 DE Reg. 922 (05/01/20) (Prop.)