CHAPTER Ins 2700 MANAGED CARE
PART Ins 2701 HEALTH AND DENTAL BENEFIT PLAN NETWORK
ADEQUACY
Statutory Authority: RSA 400-A:15, I; RSA 420-J:7, II; and RSA
420-J:12
Ins 2701.01 Purpose. The purpose of these rules is to establish
standards for determining whether a carrier’s provider network is sufficient in
numbers, types, and geographic location of providers to ensure that covered
persons will have access to health care services without unreasonable delay.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10;
ss by #12565, eff 8-1-18
Ins 2701.02 Scope.
These rules shall apply to all insurers offering or issuing policies of
health and dental insurance in the state
of New Hampshire when the plan design and benefits include a provider network
with differential payment or coverage associated with use of an in-network
provider.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10;
ss by #12565, eff 8-1-18
Ins 2701.03 Definitions.
(a) “Commissioner”
means the insurance commissioner.
(b) “Covered
benefits” means those health care services and other medical services,
including dental benefits, to which a covered person is entitled under the
terms of a health benefit plan.
(c) “Covered person”
means a policyholder, subscriber, enrollee, or other individual participating
in a health benefit plan.
(d) “Health benefit
plan” means a policy, contract, certificate, or agreement entered into,
offered, or issued by a health carrier to provide, deliver, arrange for, pay
for, or reimburse any of the costs of covered benefits with respect to any
“health coverage” as defined in RSA 420-G:2, IX and any network-based coverage
for dental services.
(e) “Health carrier”
means an entity subject to the insurance laws and rules of this state, or
subject to the jurisdiction of the commissioner, that contracts or offers to
contract to provide, deliver, arrange for, pay for, or reimburse any of the
covered costs of health care services, including an insurance company, a health
maintenance organization, a health service corporation, or any other entity
providing a plan of health insurance, health benefits, or health services.
(f) “Network” means
the group of participating providers contracted under a network plan.
(g) “Network plan”
means a health benefit plan that either requires a covered person to use or
creates incentives, including financial incentives, for a covered person to use
health care providers managed, owned, under contract with, or employed by the
health carrier.
(h) “Participating
provider” means a person or entity who, under a contract with the health
carrier or with its contractor or subcontractor, has agreed to provide health
care services to covered persons with an expectation of receiving payment,
other than coinsurance, co-payments, or deductibles, directly or indirectly
from the health carrier.
(i) “Primary care
provider” means a physician licensed by the New Hampshire board of medicine or
a board of medicine of another appropriate jurisdiction who has successfully
completed a residency program accredited by the Accreditation Council for Graduate
Medical Education or approved by the American Osteopathic Association in family
practice, internal medicine, or pediatrics, or an advanced registered nurse
practitioner licensed by the New Hampshire board of nursing in the advanced
practice categories of family practice, internal medicine, or pediatrics, or a
doctor of naturopathic medicine authorized and licensed to practice
naturopathic medicine under RSA 328-E.
(j) “Retail
pharmacy” means any licensed pharmacy that is not a mail order pharmacy and is
open to dispense prescription drugs to the walk-in public without being
required to receive medical services from a provider or institution affiliated
with that pharmacy.
(k) “Urgent
services” means health care services that are provided to treat a medical or
behavioral health condition or symptomatic illness of a covered person that, if
not treated within 48 hours, presents a risk of serious harm.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10
(from Ins 2701.01); ss by #12565, eff 8-1-18
Ins 2701.04 Basic
Access Requirement.
(a) Each health
carrier offering a network plan shall maintain a network of primary care
providers, dental providers, specialists, institutional providers, and other
ancillary health care personnel that is sufficient in numbers and types of
providers to ensure that all covered health care services are accessible to
covered persons without unreasonable delay.
(b) A health
carrier’s network of participating providers shall be considered sufficient to
meet the basic access requirement in Ins 2701.04(a) if it meets all of the
standards contained in Ins 2701.04 through Ins 2701.13. The evaluation of network adequacy shall be
based on the most recent United States census data for populations under 65
years of age.
(c) The basic access
requirement in Ins 2701.04(a) shall be met in each county in which the health
carrier is actively marketing a health benefit plan. For the purpose of this paragraph, “actively
marketing” means advertising in publications published within the county or
initiating contact with a potential policyholder in person, by phone, or by
mail.
(d) In any county in
which compliance with Ins 2701.04(a) is required and in which a health
carrier’s network is insufficient to meet one of the access standards in Ins
2701.06 and in which the carrier has not been granted an exception pursuant to
Ins 2701.08 or Ins 2701.14, the health carrier shall cover services
provided by a non-participating provider located within the applicable
geographic area at no greater cost to the covered person than if the services
were obtained from a participating provider.
Coverage under this paragraph shall be subject to all other terms and
conditions of the covered person’s health benefit plan, including, but not
limited to, referral and authorization requirements. Nothing in this paragraph shall be construed
to require a health carrier to provide coverage for services provided by a
non-participating provider who has been excluded from the health carrier’s
network for failing to meet any applicable credentialing standards.
(e) A health carrier
shall not actively solicit new policyholders in any county in which compliance
with Ins 2701.04(a) is required and in which it does not meet the access
standards in Ins 2701.06, unless the health carrier has been granted an
exception under Ins 2701.08.
(f) Nothing in (e)
above shall be construed to prohibit a health carrier from:
(1) Advertising in publications distributed
within the county which are published outside of the county;
(2) Responding to inquiries initiated by a
potential policyholder; or
(3) Issuing or renewing coverage as required by
federal or state law, including RSA 420-G.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10
(from Ins 2701.02); ss by #12565, eff 8-1-18
Ins 2701.05 Reasonable
Access to Health Care Services.
(a) To constitute
reasonable access to health care services, a provider network shall supply
access consistent with the geographic accessibility standards in Ins 2701.06 to
the services listed in Ins 2701.07.
(b) To be deemed
adequate for each of the listed services, the network shall include, within the
applicable geographic area, a sufficient number of providers for which the
service in question is within their scope of practice. In addition to physicians, providers may
include nurse practitioners, osteopaths, social workers, psychologists,
naturopaths, midwives, physician assistants, clinical nurse specialists,
dentists, dental hygienists, or any provider trained and appropriately licensed
and, when required, adequately supervised by a physician in compliance with New
Hampshire laws and rules.
(c) To constitute
reasonable access to health services, the network shall include providers whose
services are integral to care in a hospital, ambulatory surgery center, or
similar facility, specifically those services provided by anesthesiologists,
pathologists, emergency physicians, and radiologists. When a carrier is unable to assure that an in-network
provider of those services is always accessible at an in-network facility, the
carrier shall assure that any necessary out-of-network services are provided
with no additional cost share to the member, beyond member responsibility were
those services provided by an in-network provider.
(d) Access to
medically necessary health care services through the use of telemedicine or
telehealth may be used to satisfy the network adequacy geographic access
requirements when an acceptable standard of care can be met by the provider
offering the service.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10
(from Ins 2701.03); ss by #12565, eff 8-1-18
Ins 2701.06 Standards
for Geographic Accessibility.
(a) Geographic
access standards shall be calculated based on population densities of persons
under the age of 65. Geographic access standards shall be measured in terms of
distance or travel times for a person under normal conditions from specific zip
codes.
(b) A carrier shall
meet the service specific requirement by county for persons living in one of
the 2 zip codes for the following counties:
(1) Coos – Lancaster 03584 or Berlin 03570;
(2) Carroll – Conway 03813 or Wolfeboro 03894;
(3) Belknap – Laconia 03246 or Alton 03809;
(4) Sullivan – Claremont 03743 or Newport 03773;
(5) Strafford – Rochester 03867 or Dover 03820;
(6) Cheshire – Keene 03431 or Jaffrey 03452;
(7) Hillsborough – Nashua 03060 or Manchester
03103; and
(8) Rockingham – Portsmouth 03801 or Derry 03038.
(c) A carrier shall
meet the service specific requirement for Merrimack County for persons living
in the Concord 03301 zip code.
(d) A carrier shall
meet the service specific requirement for Grafton County for persons living in
2 of the following zip codes:
(1) Littleton 03561;
(2) Plymouth 03264; or
(3) Lebanon 03748.
(e) Geographic
access standards are based on the following county groupings: “Rural”, “Middle”, and “Urban”. Maximum travel distances or times are based
on the service type, county, and specific zip code within the county as
follows:
(1) For urban counties, including Strafford,
Hillsborough, and Rockingham counties:
a. Ten miles or 15 minutes driving time for
core services;
b. Twenty miles or 30 minutes driving time for
common services; and
c. Forty miles or one hour driving time for
specialized services;
(2) For middle counties, including Merrimack,
Belknap, Cheshire, Grafton, Carroll, and Sullivan counties:
a. Twenty miles or 40 minutes driving time for core services;
b. Forty miles or 80 minutes driving time for common services; and
c. Seventy miles or 2 hours driving time for
specialized services; and
(3) For rural counties, including Coos county:
a. Thirty miles or one hour driving time for core services;
b. Eighty miles or 2 hours driving time for common services;
and
c. One hundred twenty-five miles or 2½ hours driving time for specialized services.
Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10
(from Ins 2701.04); ss by #12565, eff 8-1-18
Ins 2701.07 Classification
of Services as “Core”, “Common”, and “Specialized”.
(a) The purpose of
this section is to classify services into 3 categories, core, common, and
specialized, for the purposes of network adequacy reviews.
(b) The following
services shall be classified as “Core” services for purposes of network
adequacy review:
(1) Alcohol or drug treatment in an ambulatory
setting for any of the following:
a. Crisis intervention;
b. Detoxification; or
c. Medical or somatic treatment;
(2) Alcohol or drug assessment;
(3) Alcohol or drug case management;
(4) Alcohol or drug services group counseling by
clinician;
(5) Alcohol or drug intensive outpatient
treatment;
(6) Alcohol or drug methadone or
equivalent administration;
(7) Alcohol or drug subacute detox;
(8) Alcohol or drug treatment
medication training and support;
(9) Ambulance;
(10) Behavioral health (BH)
or Substance use disorder (SUD) comprehensive community support services;
(11) BH or SUD comprehensive medication
services;
(12) Behavioral health
counseling and therapy, or screening to determine eligibility for admission to
a treatment program;
(13) Behavioral health partial hospitalization;
(14) Behavioral health short term residential;
(15) Chiropractic;
(16) Contraceptive services;
(17) Dental diagnostic services;
(18) Dental preventive services;
(19) Dental restorative services;
(20) Diagnostic physical therapy (PT) evaluation;
(21) Individual or group counseling for
mental health (MH) or SUD;
(22) Mammogram;
(23) PT procedures not requiring specialized
equipment;
(24) Preventive and associated routine care,
adult;
(25) Preventive and associated routine care, pediatric;
(26) Routine electrocardiogram (EKG);
(27) Routine immunizations and injections, adult;
(28) Routine immunizations and injections,
pediatric;
(29) Screening and assessment services for MH or SUD;
(30) Suture of non-life-threatening wound;
(31) Therapeutic behavioral services provided in
segments defined by number of minutes or on a per diem basis;
(32) Urgent care; and
(33) Venipuncture or collection of capillary blood.
(c) The following
services shall be classified as “Common” services for purposes of network
adequacy review:
(1) Allergen immunotherapy;
(2) Ankle X-ray;
(3) Appling splints;
(4) Asthma or bronchial care;
(5) Audiologic function tests;
(6) Biopsy of skin lesions;
(7) Cardiac monitoring or stress testing;
(8) Cardioversion;
(9) Cataract surgery;
(10) Chemotherapy;
(11) Chest X-ray;
(12) Complex closure of wounds;
(13) Corpus
uteri biopsy or endometrial sampling;
(14) Cystoscopy;
(15) Dental adjunctive general services;
(16) Dental endodontics;
(17) Dental implant service;
(18) Dental oral and maxillofacial surgery;
(19) Dental orthodontics;
(20) Dental periodontics;
(21) Dental prosthodontics which are removable;
(22) Destruction of skin lesions;
(23) Developmental, hearing, and vision testing, pediatric;
(24) Diagnosis and therapy for rheumatic disease;
(25) Electroencephalography (EEG);
(26) Echocardiography;
(27) Electromyography;
(28) Endoscopy;
(29) Excision of lesions, benign;
(30) Eye care medical treatment;
(31) Eye exam;
(32) Gastrointestinal endoscopy;
(33) General psychiatric care on an inpatient basis;
(34) Incision and drainage, deep abscess;
(35) Injection of eye drug;
(36) Injection of spine;
(37) Injection of tendon or joint;
(38) Insertion or removal of intrauterine contraceptive device;
(39) Knee arthroscopy;
(40) Laparoscopic surgery;
(41) Laryngoscopy;
(42) Nasal endoscopy;
(43) Non-routine venipuncture;
(44) Occupational therapy;
(45) Osteopathic manipulation;
(46) Paring or
cutting benign lesion;
(47) Partial mastectomy;
(48) Peripherally inserted central catheter
(PICC);
(49) Psychiatric diagnostic evaluation with
medical services;
(50) Renal dialysis;
(51) Routine endoscopy;
(52) Routine pre-natal care;
(53) Skin graft;
(54) Speech therapy;
(55) Spinal injection or nerve block;
(56) Surgical debridement of nails;
(57) Thoracentesis;
(58) Wax or foreign body removal from ear;
(59) Wound debridement; and
(61) X-ray absorptiometry or bone density study.
(d) The following services shall be classified as
“Specialized” services for purposes of network adequacy review:
(1) Alcohol or drug acute detox;
(2) Allergy testing;
(3) Amputation of toe or foot;
(4) Arthrodesis;
(5) Biopsy or excision of lymph nodes;
(6) Bone biopsy or procedure to obtain tissue;
(7) Breast repair or reconstruction;
(8) Bronchoscopy;
(9) Cardiac catheterization;
(10) Complete mastectomy;
(11) Complex endoscopy;
(12) Dental prosthodontics which are fixed;
(13) Draw blood off cardiovascular venous device;
(14) Emergency endotracheal intubation;
(15) Excision of lesions, malignant;
(16) Hysterectomy;
(17) Incision and drainage, skin or wound;
(18) Insertion of central venous catheter;
(19) Low back disk surgery;
(20) Magnetic resonance imaging (MRI) of lower
extremity;
(21) Radiation therapy;
(22) Radiation treatment;
(23) Radiation treatment management;
(24) Repair of shoulder joint;
(25) Replacement of aortic valve;
(26) Routine obstetrical care with vaginal
delivery;
(27) Spinal bone autograft or allograft;
(28) Spinal instrumentation;
(29) Surgical laparoscopy;
(30) Surgical vascular endoscopy;
(31) Tibia fracture treatment;
(32) Total hip replacement;
(33) Total knee replacement; and
(34) Treatment of ankle fracture.
(e) All other covered services shall be available
from providers within New England.
(f) Prescription medications from a retail
pharmacy shall be available within the time and distance standards equal to
those associated with the “Core” services for a specific county.
Source. #7701, eff 8-1-02; ss by #9399, eff 3-1-09;
ss by #9722, eff 8-1-10 (from Ins 2701.05); ss by #12565, eff 8-1-18
Ins
2701.08 Exceptions.
(a) The department shall grant a carrier an
exception to the standards for geographic accessibility in Ins 2701.06 where:
(1) A health carrier demonstrates that an
insufficient number of qualified providers or facilities are available in the
county to meet the geographic accessibility standards contained in Ins 2701.06;
(2) A health carrier demonstrates that the
carrier’s failure to develop a provider network in a given county that is
sufficient in number and type of providers to meet all of the standards in Ins
2701.06 is due to the refusal of a local provider to accept a commercially
reasonable rate, fee, term, or condition and that the health carrier has taken
steps to effectively mitigate the detrimental impact on covered persons;
(3) A health carrier demonstrates that the
required service can be obtained through the use of telemedicine or telehealth
from an in-network participating provider;
(4) A health carrier arranges to pay for the required service from an
out-of-network provider, and the member is informed prior to the treatment that
they can access services from the provider with no additional cost sharing
beyond the benefit patient responsibility to an in-network provider; or
(5) A health
carrier has requested and been granted a waiver under Ins 2701.14 with respect
to another component of the geographic accessibility standard.
(b) The department shall grant a carrier an
exception excluding one or more of the services listed in Ins 2701.07 from the
network adequacy analysis where a health carrier can establish that the service
in question is not a covered service for the health benefit plan to which the
network applies and that exclusion of the service is appropriate for that
coverage.
Source. #7701, eff 8-1-02; ss by #9399, eff 3-1-09 ss
by #9722, eff 8-1-10 (from Ins 2701.06); ss by #12565, eff 8-1-18
Ins 2701.09 Standards
for Waiting Times for Appointments and Access to After-Hours Care.
(a) Standard waiting
times for appointments shall be measured from the initial request for an
appointment.
(b) For behavioral
health services, the carrier shall ensure that covered persons may obtain an
initial appointment with an in-network provider within:
(1) Six hours for a non-life-threatening
emergency;
(2) Forty-eight hours for urgent care; and
(3) Ten business days for an initial or
evaluation visit.
(c) For primary care
provider services, the carrier shall ensure that covered persons may obtain an
initial appointment with an in-network provider within:
(1) Forty-eight hours for urgent care; and
(2) Thirty days for other routine care, including
an initial or evaluation visit.
(d) For substance
use disorder services for which prior authorization requirements are governed
by RSA 420-J:17, health carriers shall comply with the requirements of that
section.
(e) For services not
governed by RSA 420-J:17, health carriers shall ensure that all covered persons
have access to a utilization reviewer to make prior approval or
pre-authorization decisions if required under the terms of the coverage.
Source. #9722, eff 8-1-10 (from Ins 2701.07); ss by
#12565, eff 8-1-18 (formerly Ins 2701.07)
Ins 2701.10 Choice
of and Access to Providers of Specialty Care.
(a)
Each health carrier shall establish policies and procedures through
which a member with a condition that requires care from a specialist may obtain
a referral to a network specialist or specialist group practice, subject to the
utilization review procedures used by the health carrier. For purposes of this provision, “referral” means
a referral for care to be provided by a network specialist or specialist group
practice that authorizes a visit or series of visits with the
specialist or specialist group practice for either a specific time period or a
limited number of visits and which is provided according to a treatment plan
developed by the covered person’s primary care provider, a specialist, the
covered person, and the plan. The carrier
shall not require an additional referral to the same specialist or specialist
group practice within 6 months, when the patient is expected by the referring
provider to need care for at least this period of time. The carrier shall accept a referral that is
made to a specialist group practice and shall not require the referring
provider to specify an individual practitioner in the referral.
(b) Each health
carrier shall ensure that covered persons may obtain a referral to a health
care provider outside of the health carrier’s network when the health carrier
does not have a health care provider with appropriate training and experience
within its network who can meet the particular health care needs of the covered
person. Services provided by out-of-network
providers shall be subject to the utilization review procedures used by the
health carrier. The covered person shall
not be responsible for any additional costs incurred by the health carrier
under this paragraph other than any applicable co-payment, coinsurance, or
deductible.
Source. #9722, eff 8-1-10 (from Ins 2701.08); ss by
#12565, eff 8-1-18 (formerly Ins 2701.08)
Ins 2701.11 Reporting
Requirement.
(a) Each health
carrier shall, by July 1 or at the time its plans and rates for the upcoming
plan year are filed with the department for review, include a network provider
listing for each of the health benefit plans that the carrier offers in this
state using a template provided by the commissioner. The network adequacy filing shall include a
certification of compliance with the requirements of this part and shall be
signed by an authorized representative of the company. The carrier shall certify that the
provider listing is accurate with provider contracts effective at the time of
the submission. If there are anticipated
losses of in-network providers that will take place within the following 60
days, the carrier shall disclose this with the network filing. The carrier may
indicate that a potential contract dispute and the anticipated provider losses
are confidential, and the department shall not release this information if so
designated. The carrier shall
identify any services or locations in which the provider contract excludes
services the provider typically performs and that are a covered benefit.
(b) The network
adequacy filing prepared by the health carrier shall use a template provided by
the commissioner which shall describe and contain the following:
(1) A description of the network associated with
each health benefit plan offered by the carrier, including a list of the
network providers as follows:
a. For each plan, required information shall
include:
1. Plan identifier;
2. Network name; and
3. New Hampshire hospitals in network;
b. For each provider, required information shall
include:
1. Provider name;
2. Carrier specific provider identifier number;
3. National provider identifier (NPI) number;
4. Provider address; and
5. Indication of any services included in the
network adequacy requirement that are exclusively provided through telemedicine
or
telehealth; and
c. For each network, required information shall
include:
1. Network name;
2. Network ID; and
3. Network URL;
(2) The health carrier’s procedures for making
referrals within and outside its network;
(3) The health carrier’s process for monitoring
and assuring on an ongoing basis the sufficiency of its network to meet the
health care needs of persons who enroll in managed care plans;
(4) The health carrier’s method of informing
covered persons of the requirements and procedures for gaining access to
network providers, including but not limited to the following:
a. The process for choosing and changing network
providers;
b. The process for providing and approving
emergency, urgent, and specialty care;
c. The identity of all of the plan’s
participating providers and facilities, including a specification of those
participating providers, if any, that are accessible only at a reduced benefit
level; and
d. Whether and when referral options are
restricted to less than all providers in the network who are qualified to
provide covered specialty services;
(5) The health carrier’s system for ensuring the
coordination of care for covered persons referred to specialty providers, for
covered persons using ancillary services, including social services, behavioral
health services, and other community resources, and for ensuring appropriate
discharge planning;
(6) The health carrier’s process for enabling
covered persons to change primary care providers; and
(7) The health carrier’s proposed plan for
providing care in the event of contract termination between the health carrier
and any of its participating providers or in the event of the health carrier’s
insolvency or other inability to continue operations, explaining how impacted
covered persons will be notified of the contract termination, or the health
carrier’s insolvency or other cessation of operations, and transferred to other
providers in a timely manner.
(c) If the identical
provider network is associated with more than one health benefit plan, a single
network adequacy filing shall be prepared for that network, and a single health
care certification of compliance report shall be filed. The network adequacy report shall identify
all health benefit plans using the identical provider network.
(d) In addition to
the annual network adequacy filing, a carrier shall notify the commissioner in
writing, including identifying the providers, within 10 days of any of the
following events:
(1) The net loss of 10% or more of its total
number of primary care providers in any county within any 30-day period;
(2) The net loss of 10% or more of its total number
of providers performing individual or group counseling for mental health or
substance use disorders in any county within any 30-day period;
(3) The loss of one or more network hospitals; or
(4) In the carrier’s estimation, the product
network is no longer meeting a network adequacy standard with respect to one or
more counties.
(e) The carrier
shall supply the commissioner with a new provider file within ten days of a
request by the commissioner.
(f) A carrier
introducing a new product with a new network shall submit the network adequacy
report in conjunction with the rate and form filing, reflecting the network
contracts in place as of the date of filing.
If the network associated with the new product is unchanged except for
typical minor changes that take place over time as providers move in and out of
regions, the carrier is not required to submit a network filing but shall
identify the previously submitted network associated with the new product.
Source. #12565, eff 8-1-18 (formerly Ins 2701.09)
Ins 2701.12 Provider
Directories.
(a) For each of its
network plans, a health carrier shall electronically post and maintain a
current and accurate provider directory in accordance with the following
requirements and with the information and search functions described in (c)
below:
(1) In making the directory available
electronically, the health carrier shall ensure that the general public is able
to view all of the current providers for a plan through a clearly identifiable
link or tab, without creating or accessing an account or entering a policy or
contract number;
(2) The health carrier shall update the provider
directory for each network plan at least monthly;
(3) The health carrier shall periodically audit
its provider directories for accuracy and retain documentation of such an audit
to be made available to the commissioner upon request;
(4) For each network plan, a health carrier shall
include, in an electronic directory, the following information stated in plain
language:
a. A description of the criteria the carrier
used to build its provider network;
b. If applicable, a description of the criteria
the carrier used to tier providers;
c. If applicable, a description of the different
provider tiers or levels in the network and, for each provider, hospital, or
other type of facility in the network, identification of the tier in which each
is placed; and
d. If applicable, disclosure that a specific
provider is a network plan provider only for the specific services listed with
the disclosure;
(5) A health carrier shall clearly indicate which
provider directory applies to which network plan, including the specific name
of the network plan as marketed and issued in this state;
(6) A health carrier shall include a customer
service email address and telephone number or electronic link that covered
persons or the general public may use to notify the health carrier of
inaccurate provider directory information; and
(7) For the information required pursuant to (b),
(c), and (d) below, a health carrier shall indicate in the directory the source
of the information and any limitations, if applicable.
(b) For each network
plan, the health carrier’s electronic provider directory shall include the
following information in a searchable format:
(1) For health care professionals:
a. Name;
b. Gender;
c. Participating office location(s);
d. Specialty, if applicable;
e. Medical group affiliations, if applicable;
f. Facility affiliations, if applicable;
g. Participating facility affiliations, if
applicable;
h. Languages spoken other than English, if
applicable; and
i. Whether accepting new patients;
(2) For hospitals:
a. Hospital name;
b. Hospital type, for example, acute,
rehabilitation, children’s, cancer, etc.;
c. Participating hospital location; and
d. Hospital accreditation status; and
(3) For facilities other than hospitals:
a. Facility name;
b. Facility type;
c. Types of services performed; and
d. Participating facility location(s).
(c) For each network
plan, a health carrier shall make available in its electronic provider directory,
the following information:
(1) For health care professionals:
a. Contact information;
b. Board certification(s); and
c. Languages spoken other than English by
clinical staff, if applicable; and
(2) For hospitals and other facilities, a
telephone number.
(d) Each directory
shall include a date and a customer service telephone number and be accompanied
by a disclosure by the health carrier that the information in the directory is
accurate as of the date of printing and that covered persons or prospective
covered persons should consult the carrier’s electronic provider directory or
call the customer service number to obtain current provider directory
information.
Source. #12565, eff 8-1-18
Ins 2701.13 Enforcement. If the commissioner determines that a health carrier
has not contracted with a sufficient number of participating providers to
assure that covered persons have accessible health care services in a
geographic area or that a health carrier’s health care certification of
compliance report does not assure reasonable access to covered benefits, the
commissioner shall issue an order requiring the health carrier to institute a
corrective action, or shall use other enforcement powers under RSA 420-J to
ensure that covered persons have access to covered benefits.
Source. #12565, eff 8-1-18 (formerly Ins 2701.10)
Ins 2701.14 Waiver
of Rules.
(a) The commissioner,
upon the commissioner’s own initiative or upon request by an insurer, shall
waive any requirement of this chapter if such waiver does not contradict the
objective or intent of the rule and:
(1) Applying the rule provision would cause confusion
or would be misleading to
(2) The rule provision is in whole or in part
inapplicable to the given circumstances;
(3) There are specific circumstances unique to
the situation such that strict compliance with the rule would be onerous
without promoting the objective or intent of the rule provision; or
(4) Any other similar extenuating circumstances
exist such that application of an alternative standard or procedure better
promotes the objective or intent of the rule provision.
(b) No requirement
prescribed by statute shall be waived unless expressly authorized by law.
(c) Any person or
entity seeking a waiver shall make a request in writing.
(d) A request for a waiver
shall specify the basis for the waiver and proposed alternative, if any.
(e) The commissioner
shall report publicly any waiver granted on the department’s website at
https://www.nh.gov/insurance/.
Source. #12565, eff 8-1-18
PART Ins 2702 PARITY IN MENTAL HEALTH AND SUBSTANCE USE
DISORDER BENEFITS
Statutory
Authority: RSA 400-A:15,
Ins 2702.01 Purpose. The purpose of these rules is
to implement the requirements of the Mental Health Parity and Addiction Equity
Act of 2008 (MHPAEA), as amended, for group health insurance coverage that is
provided to employers.
Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18
Ins 2702.02 Scope
and Applicability. The requirements
of this part shall apply to all health insurance issuers offering health
insurance coverage in connection with a group health insurance plan that
provides coverage to a group employer.
Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18
Ins 2702.03 Definitions.
(a) “Group health insurance
coverage” means, for the purpose of Ins 2702, health coverage sold under RSA
420-G:2 IV.
(b) “Mental health
benefits” means benefits with respect to services for mental health conditions,
as defined under the terms of group health insurance coverage, and in
accordance with applicable federal and state law.
(c) “Substance use disorder benefits” means benefits with
respect to services for substance use disorders, as defined under the terms of
the group health insurance coverage, and in accordance with applicable federal
and state law.
Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18
Ins 2702.04 Parity
Requirements. Group health insurance coverage offered by an insurer in
connection with a group health plan issued to an employer and that provides
health coverage sold under RSA420-G:2, IX must offer mental health and
substance use disorder benefits coverage as required under RSA 415:18-a in
compliance with the federal MHPAEA of 2008, as amended, and federal regulations
adopted thereunder.
Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18
Ins 2702.05 Waiver of Rules.
(a) The commissioner,
upon the commissioner’s own initiative or upon request by an insurer, shall
waive any requirement of this part if such waiver does not contradict the
objective or intent of the rule and:
(1) Applying the rule provision would cause
confusion or would be misleading to consumers;
(2) The rule provision is in whole or in part
inapplicable to the given circumstances;
(3) There are specific circumstances unique to the
situation such that strict compliance with the rule would be onerous without
promoting the objective or intent of the rule provision; or
(4) Any other similar extenuating circumstances
exist such that application of an alternative standard or procedure better
promotes the objective or intent of the rule provision.
(b) No requirement
prescribed by statute shall be waived unless expressly authorized by law.
(c) Any person or
entity seeking a waiver shall make a request in writing.
(d) A request for a
waiver shall specify the basis for the waiver and proposed alternative, if any.
Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18
PART Ins 2703
EXTERNAL REVIEW
Ins
2703.01 Applicability and Scope.
(a) Except as provided in (b) below, the external
review requirements set forth in this rule shall apply to all health carriers
that provide or perform utilization review. Any health carrier that makes an
adverse determination concerning a covered person shall be considered to be
performing utilization review.
(b) The external review requirements set forth in
this part shall not apply to determinations relating to:
(1) Long-term
care insurance, as defined by RSA 415-D;
(2) Coverage
under a plan through Medicare, Medicaid, the state Children’s Health Insurance
Program, Title XXI of the Social Security Act, including services provided
under these programs but through a contracted health carrier;
(3) Health care
services provided to inmates by the department of corrections;
(4) The federal
employees health benefits program;
(5) Coverage
issued under chapter 55 of title 10 of the United States Code regarding medical
and dental care for members of the Armed Forces;
(6) Coverage issued
as supplemental to liability insurance, workers’ compensation or similar
insurance, automobile medical-payment insurance, or any insurance under which
benefits are payable with or without regard to fault, whether written on a
group blanket or individual basis; or
(7) Health care
services provided pursuant to a health plan not regulated by the state, such as
self-funded plans administered by an administrative services organization or
third-party administrator.
(c) The external review procedures set forth in
this rule shall not be utilized to adjudicate claims or allegations of health
care provider malpractice, professional negligence, or other professional fault
against participating providers or medical directors.
Source. #7539, eff 8-1-01; ss by 8862, eff 5-1-07
(from 2703.02); ss by#10918, eff 9-1-15
Ins
2703.02 Definitions. For the
purpose of this rule:
(a) "Adverse determination" means a
determination by a health carrier or its designee utilization review entity:
(1) Concerning
a requested admission, availability of care, continued stay or other health
care service, supply or drug that is a covered benefit under the terms of the
covered person’s health benefit plan or that could be a covered benefit under
some circumstances;
(2) In which
the health carrier or its designee utilization review entity finds that, based
upon the information provided, the requested service, supply or drug does not
meet the health carrier's requirements for medical necessity, appropriateness,
health care setting, level of care or effectiveness; and
(3) In which
the requested service, supply or drug, or payment for such, is therefore
denied, reduced, or terminated.
(b) “Ambulatory review” means utilization review
of health care services performed or provided in an outpatient setting.
(c) “Authorized representative” means a person to
whom a covered person has given consent to represent the covered person in an
external review. Authorized representative can include the covered person's
treating health care professional.
(d) “Benefits denial” means a denial, reduction,
or termination by a health carrier of a requested health care service, supply
or drug, or a denial of payment for such, which is made on the basis of a
finding by the health carrier that the requested service, supply or drug is
specifically excluded from coverage under the terms of the covered person’s
health benefit plan and is therefore not a covered benefit.
(e) “Case management” means a coordinated set of
activities conducted for individual patient management of serious, complicated,
protracted or other health conditions.
(f) “Certification” means a determination by a
health carrier or its designee utilization review organization that an
admission, availability of care, continued stay or other health care service
has been reviewed and, based on the information provided, satisfies the health
carrier’s requirements for medical necessity, appropriateness, health care
setting, level of care and effectiveness.
(g) “Clinical review criteria” means the written
screening procedures, decision abstracts, clinical protocols and practice
guidelines used by a health carrier to determine the necessity and
appropriateness of health care services.
(h) “Commissioner” means the insurance
commissioner.
(i) “Concurrent review” means utilization review
conducted during a patient’s hospital stay or course of treatment.
(j) “Covered benefits” or “benefits” means those
health care services to which a covered person is entitled under the terms of a
health benefit plan.
(k) “Covered person” means a policyholder,
subscriber, enrollee or other individual participating in a health benefit
plan.
(l) “Discharge planning” means the formal process
for determining, prior to discharge from a facility, the coordination and
management of the care that a patient receives following discharge from a
facility.
(m) “Disclose” means to release, transfer or
otherwise divulge protected health information to any person other than the
individual who is the subject of the protected health information.
(n) "Facility" means an institution
providing health care services or a health care setting, including but not
limited to hospitals and other licensed inpatient centers, ambulatory surgical
or treatment centers, skilled nursing centers, residential treatment centers,
diagnostic, laboratory and imaging centers, and rehabilitation and other
therapeutic health settings.
(o) “Final adverse determination” means an
adverse determination that has been upheld by a health carrier, or its designee
utilization review organization, at the completion of the health carrier’s
standard, second level grievance review process as set forth in RSA 420-J:5, V or expedited, second level
grievance review process as set forth in RSA 420-J:5, VI (e).
(p) “Health benefit plan” means a policy,
contract, certificate or agreement offered or issued by a health carrier to
provide, deliver, arrange for, pay for or reimburse any of the costs of health
care services.
(q) “Health care professional” means a physician
or other health care practitioner licensed, accredited or certified to perform
specified health services consistent with state law.
(r) “Health care provider” or “provider” means a
health care professional or a facility.
(s)
"Health care services" or "health services" means services
for the diagnosis, prevention, treatment, cure or relief of a health condition,
illness, injury or disease.
(t) "Health carrier" means an entity
subject to the insurance laws and rules of this state, or subject to the
jurisdiction of the commissioner, that contracts or offers to contract to
provide, deliver, arrange for, pay for, or reimburse any of the costs of health
care services, including an insurance company, a health maintenance
organization, a health service corporation, or any other entity providing a
plan of health insurance, health benefits, or health services.
(u) “Health information” means information or data,
whether oral or recorded in any form or medium, and personal facts or
information about events or relationships that relates to:
(1)
The past, present or future physical, mental, or behavioral health or
condition of an individual or a member of the individual’s family;
(2)
The provision of health care services to an individual; or
(3)
Payment for the provision of health care services to an individual.
(v) "Independent review organization"
means an entity that employs or contracts with clinical peers to conduct
independent external reviews of health carrier determinations.
(w) “Person” means an individual, a corporation,
a partnership, an association, a joint venture, a joint stock company, a trust,
an unincorporated organization, any similar entity or any combination of the
foregoing.
(x) “Prospective review” means utilization review
conducted prior to an admission or a course of treatment.
(y) “Protected health information” means health
information:
(1)
That identifies an individual who is the subject of the information; or
(2)
With respect to which there is a reasonable basis to believe that the
information could be used to identify an individual.
(z) “Retrospective review” means a review of
medical necessity conducted after services have been provided to a patient, but
does not include the review of a claim that is limited to an evaluation of
reimbursement levels, veracity of documentation, accuracy of coding or
adjudication for payment.
(aa)
“Second opinion” means an opportunity or requirement to obtain a clinical
evaluation by a provider other than the one originally making a recommendation
for a proposed health service to assess the clinical necessity and
appropriateness of the initial proposed health service.
(ab) “Utilization review” means a set of formal
techniques designed to monitor the use of, or evaluate the clinical necessity,
appropriateness, efficacy, or efficiency of, health care services, procedures,
or settings. Techniques can include ambulatory review, prospective review,
second opinion, certification, concurrent review, case management, discharge
planning, or retrospective review.
(ac) “Utilization review organization” means an
entity that conducts utilization review, other than a health carrier performing
a review for its own health plans.
Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07
(from Ins 2703.01); ss by #10918, eff 9-1-15
Ins 2703.03 The
Right to External Review.
(a) A covered person shall have the right to
independent external review of a determination by a health carrier or its designee
utilization review entity when all of the following conditions apply:
(1)
The subject of the request for external review is an adverse
determination;
(2)
The covered person or the covered person's authorized representative has
submitted the request for external review in writing to the commissioner within
180 days of the date of the health carrier's final denial decision, or if the
health carrier has failed to make a decision on appeal within the applicable
time frame, then within 180 days of the
date the decision was due; and
(3)
The category of health care services or type of health benefit plan that
is the subject of the request for external review is not excluded from the
external review provisions of this rule pursuant to Ins 2703.02 (b).
(b) Benefit denials concerning requested health
care services, supplies or drugs that could not be considered a covered benefit
under any circumstance shall not be eligible for external review. However, a
covered person may receive external review of a benefit denial if it is also an
adverse determination.
(c) A benefit denial which shall constitute an
adverse determination includes, but is not limited to, the following:
(1)
Experimental or investigational treatments, where the health carrier denies
requested care because the covered person’s health benefit plan does not cover
experimental or investigational treatment, but the covered person requests
external review on the basis that the treatment in question is not experimental
or investigational;
(2)
Cosmetic procedures, where the health carrier denies requested care
because the covered person’s health benefit plan does not cover cosmetic
procedures, but the covered person requests external review on the basis that
the service is needed for medical rather than cosmetic reasons; and
(3)
Access to out-of-network health care professionals or providers, where
the health carrier denies a referral because treatment by out-of-network
professionals or providers is not covered unless the appropriate clinical
expertise is not available within the health carrier’s network, but the covered
person requests external review on the basis that the health carrier’s provider
network does not include professionals or providers with the appropriate
clinical expertise.
(d) In requesting external review, a covered
person shall provide the following information:
(1)
The name of the covered person;
(2) The covered person's mailing address,
date of birth, telephone number and insurance identification number;
(3)
The employer's name and telephone number;
(4)
The carrier's name, mailing address, telephone number, and name of
contact at the carrier;
(5)
The name of the provider, the type of provider, the provider's mailing
address, and telephone number;
(6)
If applicable, the name, address and telephone number of the authorized
representative and a signature giving the representative authority to represent
the covered person;
(7)
If applicable, a request for a telephone conference;
(8)
A statement describing the health care decision in dispute;
(9)
A photocopy of the covered person's insurance card and certificate of
coverage;
(10)
A copy of the final decision of the carrier denying the claim on
internal review; and
(11)
A statement authorizing the release of the covered person's medical
records.
Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07;
ss by #10918, eff 9-1-15
Ins
2703.04 Notice of Right to External
Review.
(a) Health carriers shall provide to covered persons
the insurance department’s “Managed Care Consumer Guide to External Appeal” and
the insurance department’s “Request for Independent External Appeal of a Health
Care Decision” in each of the following circumstances:
(1)
The publications shall be attached to the policy, certificate,
membership booklet, or other evidence of coverage provided to covered persons;
(2) The publications shall be included
with the final adverse determination provided to covered persons upon
completion of internal grievance review or expedited internal grievance review;
(3)
If the health carrier agrees to submit the determination to independent
external review prior to completion of internal review, the publications shall
be provided at the time such agreement is made; and
(4)
If the covered person has requested standard or expedited internal
grievance review, and the health carrier has failed to issue a decision within
the required time frames, the publications shall be provided promptly upon the
expiration of the time period for issuing the decision.
(b) Pursuant to the provisions of RSA 420-J:5, V.
(a) (3), a notice shall be included with the final determination provided to covered
persons upon completion of standard internal grievance review or expedited
internal grievance review.
(c) The notice in (b) above shall be:
(1)
In bold;
(2)
Set out in at least 16 point type, and the remainder of the text in at
least 12 point type; and
(3)
Printed as follows:
“NOTICE OF
RIGHT TO AN EXTERNAL APPEAL
OF YOUR HEALTH INSURER’S DECISION
This is our final decision in the internal grievance review
process. You may have a legal right to have our decision reviewed by an
organization that is independent and neutral. This process is called
Independent External Review and is overseen by the New Hampshire Insurance
Department. There is no cost to you for an external appeal.
YOU MUST ASK
FOR THIS REVIEW NO LATER THAN 180
DAYS AFTER
THE DATE OF THIS NOTICE
To request an independent external review, consult the
enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed
Request for Independent External Appeal of a Health Care Decision, and attach all supporting documentation.”
(d)
The person seeking external review shall mail or deliver the completed request
to the
Independent External Review
New Hampshire Insurance Department
(e) The notice in (b) above shall also include a
statement as follows:
“If your medical condition is such that waiting for
the standard external review process to be completed would seriously jeopardize
your life or health or would jeopardize your ability to regain maximum
function, you may be eligible for expedited external review.
If you have any questions about the external review
process, please call the New Hampshire Insurance Department at 1-800-852-3416
and ask to speak to a consumer assistant.”
(f)
Pursuant to the provisions of RSA 420-J:5, V (a)(3), if the health carrier
agrees to submit the determination to independent external review prior to
completion of internal review, the following notice shall be provided to the
covered person at the time of the agreement:
(g) The notice in (f) above shall be:
(1) In bold;
(2) Set out in
at least 16 point type, and the remainder of the text in at least 12 point
type; and
(3) Printed as
follows:
“NOTICE OF RIGHT TO AN EXTERNAL APPEAL
OF YOUR
HEALTH INSURER’S DECISION
We have agreed to submit your appeal of our
determination to an independent reviewer prior to completion or our internal grievance
review process. This means that you may now have our decision reviewed by an
organization that is independent and neutral. This process is called
Independent External Review and is overseen by the New Hampshire Insurance
Department. There is no cost to you for an external appeal.
YOU MUST ASK FOR THIS REVIEW NO LATER
THAN 180 DAYS
AFTER THE DATE OF THIS NOTICE
To request an independent external review, consult the
enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed
Request for Independent External Appeal of a Health Care Decision, and attach
all supporting documentation.
(h) The person seeking external review shall mail
or deliver the completed request to the
Independent External Review
New Hampshire Insurance Department
(i) The notice in (f) above shall also include a
statement as follows:
“If your medical condition is such that waiting for the
standard external review process to be completed would seriously jeopardize
your life or health or would jeopardize your ability to regain maximum
function, you may be eligible for expedited external review.
If you have any questions about the external review
process, please call the New Hampshire Insurance Department at 1-800-852-3416
and ask to speak to a consumer assistant.”
(j) Pursuant to RSA 420-J:5, V (a)(3), if the
covered person has requested standard or expedited internal grievance review
and the health carrier has failed to issue a decision within the required time
frames, the health carrier shall send the following notice to the covered
person promptly upon the expiration of the time period for issuing the
decision:
(k) The notice in (j) above shall be:
(1) In bold;
(2) Set out in
at least 16 point type, and the remainder of the text in at least 12 point
type; and
(3) Printed as
follows:
“NOTICE OF RIGHT
TO AN EXTERNAL APPEAL
OF YOUR
HEALTH INSURER’S DECISION
We have agreed to submit your appeal of our
determination to an independent reviewer prior to completion or our internal
grievance review process. This means that you may now have our decision reviewed
by an organization that is independent and neutral. This process is called
Independent External Review and is overseen by the New Hampshire Insurance
Department. There is no cost to you for an external appeal.
YOU MUST ASK
FOR THIS REVIEW NO LATER THAN 180 DAYS
AFTER THE
DATE OF THIS NOTICE
To request an independent external review, consult the
enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed
Request for Independent External Appeal of a Health Care Decision, and attach
all supporting documentation."
(1) The person seeking external review shall mail
or deliver the completed request to the
Independent External Review
New Hampshire Insurance Department
(m) The notice in (j) above shall also include a
statement as follows:
"If your medical condition is such that waiting
for the standard external review process to be completed would seriously
jeopardize your life or health or would jeopardize your ability to regain
maximum function, you may be eligible for expedited external review. If you
have any questions about the external review process, please call the New Hampshire
Insurance Department at 1-800-852-3416 and ask to speak to a consumer
assistant.”
Ins 2703.05 Standard
External Review. Standard external
review shall be conducted as follows:
(a)
Within 7 business days after the date of receipt of a request for external review,
the department shall complete a preliminary review of the request to determine
whether:
(1) The
individual is or was a covered person under the health benefit plan;
(2) The
determination that is the subject of the request for external review meets the
conditions of eligibility for external review stated in Ins 2703.03 (a); and
(3) The covered
person has provided all the information and forms that are necessary to process
a request for an external review.
(b) Upon completion of the preliminary review
pursuant to Ins 2703.05 (a), the department shall immediately notify the
covered person or the covered person's authorized representative in writing:
(1) Whether the
request is complete; and
(2) Whether the
request has been accepted for external review.
(c) If the request is not complete, the
department shall inform the covered person or the covered person's authorized
representative what information or documents are needed to make the request
complete and to process the request. The covered person or the covered person's
authorized representative shall submit such information or documentation within
10 days of being notified that the request was incomplete.
(d)
If the request for external review is accepted, the department shall:
(1) Notify the
covered person that new or additional information can be submitted to the
insurance department;
(2) Notify the
covered person that oral testimony shall be permitted only when the
commissioner determines, based on evidence provided by the covered person, that
it would not be feasible or appropriate to present only written testimony;
(3) Notify the
covered person that the request for a hearing shall be made no less than 10
days after the date of issuance of the notice of acceptance;
(4) Notify the
covered person that if the request for oral testimony is accepted that oral
testimony shall be taken within 20 days of the date of notice of acceptance and
that a representative of the health carrier shall be permitted to participate
in the hearing or teleconference; and
(5) Notify the
health carrier in writing of the request for external review and its
acceptance, and provide the health carrier with a copy of the request and of
any supporting documentation submitted by the covered person or the covered
person’s authorized representative.
(e) If the request for external review is not
accepted, the department shall inform the covered person or the covered
person's authorized representative and the health carrier in writing of the
reason for its non-acceptance.
(f) At the time a request for external review is
accepted, the commissioner shall select and retain an independent review
organization that is certified pursuant to Ins 2703.07 to conduct the external
review.
(g) Within 10 days after the date of issuance of
the notice provided pursuant to Ins 2703.05 (b)(2), the health carrier or its
designated utilization review organization shall provide to the selected
independent review organization, the covered person, and the insurance
department all information in its possession that is relevant to the
adjudication of the matter in dispute, including:
(1) The terms
of agreement of the health benefit plan, including the evidence of coverage,
benefit summary, or other similar document;
(2) All
relevant medical records, including records submitted to the carrier by the
covered person, the covered person's authorized representative, or the covered
person's treating provider;
(3) A summary
description of the applicable issues, including a statement of the health
carrier's final determination;
(4) The
clinical review criteria used and the clinical reasons for the determination;
(5) The
relevant portions of the carrier's utilization management plan;
(6) Any
communications between the covered person and the health carrier regarding the
internal or external review of the claim; and
(7) All other
documents, information, or criteria relied upon by the carrier in making its
determination.
(h) Failure by the health carrier or the covered
person to provide the documents and information required in Ins 2703.05 (g) or
Ins 2703.05 (d) (1) within the specified time frame shall not delay the conduct
of the external review. If upon receipt of a notice from the insurance
department the health carrier or its designee utilization review organization
has failed to provide the documents and information within the time frame
specified in paragraph (g), the commissioner shall terminate the external
review and make a decision to reverse the adverse determination or final
determination.
(i) The selected independent review organization
shall review all of the information and documents received from the carrier
pursuant to Ins 2703.05 (g) and any other information submitted by the covered
person or the covered person's authorized representative or treating provider
with the request for external review or pursuant to Ins 2703.05 (d) (1) and any
testimony provided.
(j) The independent review organization may
consider any applicable, generally accepted clinical practice guidelines,
studies or research, including those developed or conducted by the federal
government, national or professional medical societies, boards, and
associations.
(k) In conducting the review, the independent
review organization shall review the correctness of all previously determined
facts, allow the introduction of new information, and make a decision that is
independent of the decisions or conclusions made by the health carrier during
internal review.
(l) The selected independent review organization
shall render a decision upholding or reversing the determination of the health
carrier and notify the covered person or the covered person's authorized
representative, the health carrier, and the commissioner in writing within 20
days of the date that the record of the case is closed pursuant to Ins 2703.05
(d) (1). This notice shall include a written review decision that contains a
statement of the nature of the grievance, references to evidence or
documentation considered in making the decision, findings of fact, and the
clinical and legal rationale for the decision, including, as applicable,
clinical review criteria and rulings of law, and a description of the
qualifications of the reviewer or reviewers.
(m)
Upon receipt of a notice of a decision pursuant to Ins 2703.05 (j) reversing
the adverse determination or final adverse determination, the health carrier
shall immediately approve the coverage that was the subject of the adverse
determination or final adverse determination and provide confirmation of this
to the insurance department. The confirmation provided to the insurance
department shall include a statement of the amount of payment that was approved
and the amount charged.
(n) Upon receipt of the information required to
be forwarded by the covered person or the commissioner to the health carrier
pursuant to Ins 2703.05 (d) (1) and (2) and prior to receipt of the decision of
the selected independent review organization, the health carrier may reconsider
the adverse determination or final adverse determination that is the subject of
the external review. Reconsideration by the health carrier of its adverse
determination or final adverse determination shall not delay or terminate the
external review.
(o) The external review shall only be terminated
if the health carrier decides, upon completion of its reconsideration, to
reverse its adverse determination or final adverse determination and provide
coverage or payment for the health care service that is the subject of the
adverse determination or final adverse determination.
(p) Immediately upon making the decision to
reverse its adverse determination or final adverse determination, as provided
in Ins 2703.05 (m), the health carrier shall notify the covered person, and if
applicable, the covered person’s authorized representative, the selected
independent review organization, and the commissioner in writing of its
decision and shall approve the coverage that was the subject of the adverse
determination or final adverse determination. The selected independent review
organization shall terminate the external review upon receipt of the notice
from the health carrier and verification that coverage was approved.
Ins 2703.06 Expedited
External Review. Expedited external
review shall be conducted as follows:
(a)
Expedited external review shall be available when the covered person's treating
health care provider certifies to the department that adherence to the time
frames specified in RSA 420-J:5-b would seriously jeopardize the life or health
of the covered person or would jeopardize the covered person's ability to
regain maximum function. A person who
meets the standard for expedited external review may pursue expedited external
review simultaneous with the internal review process in RSA 420-J:5, even
without a final adverse determination.
(b) Except to the extent that it is inconsistent
with the provisions of this section, all requirements for the conduct of
standard external review specified in Ins 2703.05 shall apply to expedited
external review.
(c) At the time the department receives a request
for an expedited external review, the department shall immediately make a
determination whether the request meets the standard set forth in Ins 2703.06
(a) for expedited external review, as well as the reviewability requirements
set forth in Ins 2703.05 (a). If these conditions are met, the department shall
immediately notify the health carrier. If the request is not complete, the
department shall immediately contact the covered person or the covered person's
authorized representative and attempt to obtain the information or documents
that are needed to make the request complete.
(d) If the commissioner determines that the
covered person is eligible for external review on an expedited basis, the department
shall select and retain an independent review organization that is certified
pursuant to Ins 2703.07 to conduct the expedited external review.
(e) The health carrier or its designated
utilization review organization shall provide or transmit the documents and
information specified in Ins 2703.05 (g) to the selected independent review
organization electronically or by telephone or facsimile or any other available
expeditious method within one business day of receiving notification from the
department of the request for expedited external review and of the
commissioner’s determination that the covered person is eligible for external
review on an expedited basis.
(f) When handling a review on an expedited basis,
the selected independent review organization shall make a decision and notify
the carrier and the covered person as expeditiously as the covered person's
medical condition requires, but in no event more than 72 hours after the
expedited external review is requested by the commissioner's office.
(g) If the notice provided pursuant to Ins
2703.06 (f) was not in writing, within 2 business days after the date of
providing that notice, the selected independent review organization shall:
(1) Provide
written confirmation of the decision to the covered person or the covered
person's authorized representative and the health carrier; and
(2) Include the
information set forth in Ins 2703.05 (j).
(h) Upon receipt of a notice of a decision
pursuant to Ins 2703.05 (j) reversing the adverse determination or final
adverse determination, the health carrier shall immediately approve the
coverage that was the subject of the adverse determination or final adverse
determination and provide confirmation of this to the insurance department. The
confirmation provided to the insurance department shall include a statement of
the amount of payment that was approved.
(i) An expedited external review shall not be
provided for determinations made by the health carrier on a retrospective
basis.
(j) If the expedited external review concerns a
concurrent review determination, the service shall be continued pending the
completion of the external review process. A covered person shall not be held
liable to either the health plan, the hospital, the physician, or the services
provider for the cost of services in excess of the applicable co-payment,
coinsurance, or deductible incurred, pending the independent review
organization's determination of an expedited external review.
(k) When a covered person has requested
expedited, second-level internal grievance review with a health carrier, the
health carriers shall immediately notify the insurance department of the
existence of the request and of the expected time frame for making a decision
on that request.
Ins 2703.07 Certification of Independent Review
Organizations.
(a) The certification of independent review
organizations shall be conducted as follows:
(1) An
independent review organization seeking certification shall supply the
following information:
a. Name,
address and telephone number of the organization;
b. The name,
address, and telephone number of the chief executive officer;
c. The tax
status and federal employer tax identification number;
d. The list of
states where the organization is incorporated, licensed, certified, or
otherwise authorized to conduct business;
e. A
description of the organizational structure that identifies and explains the
lines of authority within the organization itself and if applicable within a
holding company or parent subsidiary system;
f. A
description of the management of the organization, including the files and
management responsibilities of the staff;
g. A
description of the contracted service providers and clinical peer reviewers, as
well as a description of the procedures used to ensure the adequacy of the
network of clinical peer reviewers retained by the organization and the
procedures used to ensure that the peer reviewers are adequately trained and
appropriately licensed;
h. A list of
all reviewers in the clinical peer review network including the name, license
number and clinical discipline of each reviewer;
i. A
description and copy of the quality assurance program established by the
organizations, which specifically address the policies and procedures used to
protect the confidentiality of medical and treatment records;
j. The name of the medical director, and a description
of the medical director's qualifications;
k. A
description of the procedures that will be used to ensure that standard and
expedited appeals are conducted within the required time frames;
l. A
description of the current financial status of the organization, including the
most recent certified financial statement;
m. A list of
fees that will be charged for independent review and an explanation of the
methodology used to develop the fee schedule;
n. A conflict
of interest attestation signed by each owner, officer, director, medical
director or management employee of the applicant, which shall be supported by
personal information including the name, address, telephone number, and the
person's 10 year employment history;
o. A statement
verifying that any person subject to the requirement of filing a conflict of
interest attestation has submitted a report of his/her history of legal
actions, as well as a report of his/her affiliation with other health care
corporations; and
p. Evidence of
accreditation by a nationally recognized private accrediting entity with
established and maintained standards for independent review organizations.
(2) The
application shall be signed by the chief executive officer and the board
chairman who shall attest to its accuracy;
(3) The
commissioner shall maintain and periodically update a list of certified
independent review organizations;
(4) The
commissioner shall periodically review the accreditation for all certified
independent review organizations;
(5) Whenever
the commissioner determines that an independent review organization no longer
satisfies the minimum qualifications established under Ins 2703.07 (b), the
commissioner shall terminate the certification of the independent review
organization and remove it from the list of certified independent review
organizations that is maintained by the commissioner pursuant to Ins 2703.07
(a) (5); and
(6) A certification
under this section shall be valid for a period of 2 years.
(b) To be certified under Ins 2703.07 (a) to
conduct external reviews, an independent review organization shall, in addition
to maintaining accreditation by a nationally recognized accrediting entity,
meet the following minimum qualifications:
(1) It shall
develop and maintain written policies and procedures that govern all aspects of
both the standard external review process and the expedited external review
process;
(2) It shall
establish and maintain a quality assurance program that:
a. Ensures that
external reviews are conducted within the specified time frames and required
notices are provided in a timely manner;
b. Ensures the
selection of qualified and impartial clinical peer reviewers to conduct
external reviews on behalf of the independent review organization with suitable
matching of reviewers to specific cases;
c. Ensures the
confidentiality of medical and treatment records;
d. Ensures that
any potential conflict of interest is promptly detected and either remedied by
the substitution of an alternative clinical peer reviewer or reported to the
commissioner for instruction as to how to proceed; and
e. Ensures that
any person employed by or under contract with the independent review
organization adheres to the requirements of this section;
(3) It shall
assign clinical peer reviewers to conduct external reviews who:
a. Are
physicians or other appropriate health care providers;
b. Are experts
in the treatment of the covered person's medical condition that is the subject
of the external review;
c. Are
knowledgeable about the recommended health care service or treatment through
actual clinical experience;
d. Hold a
non-restricted license in a state of the
e. Have no
history of disciplinary actions or sanctions, including loss of staff
privileges or participation restrictions, that have been taken or are pending
by any hospital, governmental agency, or regulatory body that raise a
substantial question as to the clinical peer reviewer’s physical, mental or
professional competence or moral character; and
f. Have agreed
to promptly disclose any potential conflict of interest.
(4) The
independent review organization shall be free of any conflict of interest and
shall not own or control or in any way be owned or controlled by a health
carrier, a national, state, or local trade association of health carriers, or a
national, state, or local trade association of health care providers; and
(5) To qualify to
conduct an external review of a specific case, neither the independent review
organization selected to conduct the external review nor any clinical peer
reviewer shall have a material professional, familial or financial interest in
or relationship with or to any of the following:
a. The health
carrier that is the subject of the external review;
b. Any officer,
director, or management employee of the health carrier that is the subject of
the external review;
c. The health
care provider or the health care provider's medical group or independent
practice association recommending the health care service or treatment that is
the subject of the external review;
d. The facility
or institution at which the recommended health care service or treatment would
be provided;
e. The
developer or manufacturer of the principal drug, device, procedure, or other
therapy being recommended for the covered person whose treatment is the subject
of the external review; or
f. The covered
person or the covered person's authorized representative.
(c) In determining whether an independent review
organization or a clinical peer reviewer of the independent review organization
has a material professional, familial or financial conflict of interest for
purposes of Ins 2703.07 (b) (5), the commissioner shall consider whether the
relationship has the potential to directly or indirectly cause the interests of
the IRO or its agents or employees acting on its behalf, to interfere with the
independent external reviews of health carrier determinations conducted by the
independent review organization.
(d) For the purpose of allowing in-state health
care providers to act as clinical peer reviewers in the conduct of external
reviews, an affiliation with a hospital, an institution, an academic medical
center, or a health carrier provider network shall not be deemed by itself to
constitute a conflict of interest which is sufficient to preclude that provider
from acting as a clinical peer reviewer, so long as the affiliation is disclosed
to the covered person or the covered person's authorized representative and the
covered person does not object.
(e) The following organizations shall not be
eligible for certification to conduct external reviews:
(1)
Professional or trade associations of health care providers;
(2)
Subsidiaries or affiliates of such provider associations;
(3) Health
carrier or health plan associations; and
(4) Subsidiaries
or affiliates of health plan or health carrier associations.
(f) The external review organization’s charges
for services provided shall be competitive and reasonable, consistent with Ins
2703.09(a).
Ins
2703.08 External Review Reporting
Requirements.
(a) An independent review organization assigned by
the commissioner to conduct external reviews shall submit an annual report to
the commissioner including the following information in the aggregate and
separately for each health carrier:
(1) The total
number of requests for external review assigned by the commissioner to the
independent review organization;
(2) The total
number of requests for external review assigned by the commissioner to the
independent review organization for which a final adjudication was made, and,
of those, the number resolved upholding the adverse determination or final
adverse determination and the number resolved reversing the adverse
determination or final adverse determination;
(3) The average
length of time required for the adjudication;
(4) A summary of
the types of coverages or cases for which an external review was sought;
(5) The number
of external reviews that were terminated prior to completion as the result of a
reconsideration and reversal by the health carrier of its adverse determination
or final adverse determination after the receipt of new or additional
information from the covered person or the covered person’s authorized
representative;
(6) The number
of external reviews that were terminated prior to completion as the result of a
settlement between the health carrier and the covered person on terms other
than the original determination of the health carrier or a complete reversal of
that determination;
(7) The number
of external reviews that were terminated prior to completion for other reasons;
and
(8)
Verification that the organization maintains written records fully
documenting requests for external review received from the commissioner.
(b) The independent review organization shall
retain all files, records and data received or created in conjunction with
external reviews conducted pursuant to this rule for at least 3 years.
Ins 2703.09 General Provisions Regarding External
Review.
(a) The health carrier against which a request
for external review is filed shall pay the cost of the external review. Except
under the circumstances described below in this paragraph, such costs shall not
exceed $1,500. The commissioner shall notify the independent review
organizations of the cost limitation for conducting an external review. Costs
in excess of $1,500 shall be allowed if the commissioner determines an
additional cost is necessary to ensure the fair adjudication of the case in
question.
(b) The external review decision of the
independent review organization shall be binding on the health carrier and
shall be enforceable by the commissioner pursuant to the penalty provisions of
RSA 420-J:14. The external review decision of the independent review
organization shall be binding on the covered person except to the extent the
covered person has other remedies available under federal or state law.
(c) The external review process shall not be
considered an adjudicative proceeding within the meaning of RSA 541-A, and the
external review decision of the independent review organization shall not be
subject to rehearing and appeal pursuant to RSA 541.
(d) An independent review organization and the
commissioner shall not disclose protected health information regarding covered
persons that is collected in the external appeal process. In addition, the
records and internal materials prepared for specific reviews by the
commissioner and by an independent review organization under this section shall
be exempt from public disclosure under RSA 91-A.
(e) An independent review organization acting in
good faith shall have immunity from any civil or criminal liability or
professional discipline as a result of acts or omissions with respect to any
external review, unless the acts or omissions constitute willful and wanton
misconduct.
(f) The right to external review under this
chapter shall not be construed to change the terms of coverage under a health
benefit plan nor shall the health carrier retaliate against the covered person
for exercising his or her right to an independent external review.
(g) When requested by the covered person, the
commissioner shall provide consumer assistance in pursuing the internal
grievance procedures under RSA 420-J:5 and the external review process under
RSA 420-J:5-a - 420-J:5-e.
(h) If, based on the evidence presented during
the external review process, the commissioner determines that the health
carrier's medical director, in the conduct of his or her duties, may have
committed misconduct as set forth in RSA 329:17, VI, the commissioner shall
document such findings and transmit them in a separate report to the board of
medicine.
PART Ins 2704 PHARMACY BENEFITS MANAGERS
Statutory Authority: RSA 400-A:15, I; RSA 415:26; RSA 402-N:2; RSA
420-J:7-b, X;
and RSA 420-J:12
Document #13059,
effective 6-29-20, readopted with amendments Part Ins 2704 titled “Prescription
Prices for Pharmacists and Pharmacies” and changed the title to “Pharmacy
Benefits Managers”. Document #13059 made
extensive changes to the wording, format, structure, and numbering of rules in
Part Ins 2704.
Document #13059 replaces the prior filing for rules in Part
Ins 2704 filed in Document #12171, effective 2-24-17.
Ins
2704.01 Purpose. The purpose of this part is to provide for
the regulation and registration of pharmacy benefits managers (PBMs) and to set
forth rules which the commissioner deems necessary to carry out the provisions
of RSA 402-N.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.02 Definitions.
(a) “Annual report” means a report of the data
required to be submitted annually in accordance with RSA 402-N:6.
(b) "Commissioner" means the insurance
commissioner.
(c) “Covered benefits” means those health care
services and other medical services to which a covered person is entitled under
the terms of a health benefit plan, including pharmacy benefits.
(d) “Covered person” means a policyholder, subscriber,
enrollee, or other individual participating in a health benefit plan.
(e) “Contracted copayment” means a fixed amount a
covered person is responsible to pay for covered prescriptions as set forth in
the health benefit plan, or the price for filling the prescription as
contracted between the health carrier or its pharmacy benefits manager and the
pharmacy, whichever is less.
(f) “Department” means the New Hampshire
Insurance Department.
(g) “Health benefit plan” means a plan, policy,
or certificate of insurance that constitutes health coverage as defined in RSA
420-G:2, IX.
(h) “Health carrier” means an entity subject to
the insurance laws and rules of this state, or subject to the jurisdiction of
the commissioner, that contracts or offers to contract to provide, deliver,
arrange for, pay for, or reimburse any of the covered costs of health care
services, including an insurance company, a health maintenance organization, a
health service corporation, or any other entity providing a plan of health
insurance, health benefits, or health services.
(i) “New Hampshire pharmacy board” means the
board established in RSA 318:2.
(j) “Participating pharmacy” means a pharmacy
that, under a contract with the health carrier or its contractor or
subcontractor, including any pharmacy benefits manager, has agreed to provide
pharmacy services to covered persons with an expectation of receiving payment,
other than coinsurance, co-payments, or deductibles, directly or
indirectly, from the health carrier.
(k) “Pharmacist” means a person defined in RSA 402-N:1, V.
(l) “Pharmacy benefits manager”' means a
“pharmacy benefits manager” as defined in RSA 402-N:1, VIII.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.03 Registration.
(a) No person or entity shall manage the
prescription drug coverage provided by a health carrier without registering
with the department as a PBM. All PBMs
shall complete and submit an application PBM-R “Application for
Registration: Initial Application or
Renewal Application” (May 2020), available at:
https://www.nh.gov/insurance/companies/applications/index.htm.
(b) The registration application shall be
completed and signed by an officer or authorized representative of the PBM and filed
with the department along with a filing fee of $500.
(c) A PBM shall
notify the commissioner in writing of any change in the information required to
be filed under these rules, including a change of address or name, no later
than 30 days after the change.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins 2704.04 Registration
Renewal and Annual Reports.
(a) All PBMs
shall submit a renewal fee of $100 and complete and submit a renewal
application PBM-R “Application for Registration: Initial Application or Renewal Application”
(May 2020), available at:
https://www.nh.gov/insurance/companies/applications/index.htm, by March 1 each
year.
(b) No
registration shall be renewed unless the PBM has submitted an annual report as
required by RSA 402-N:6, I.
(c) Annual
reports shall be submitted in an electronic workbook that includes the
following information:
(1) Carrier plan code or name;
(2) Health
carrier’s National Association of Insurance Commissioners company code;
(3) Plan code
as defined in Ins 4010.07(c);
(4) Total
amount spent on drugs prior to rebates; and
(5) Aggregate amount
of all rebates collected from pharmaceutical manufacturers that were
attributable to patient utilization in New Hampshire.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.05 Claims Processing.
(a) Every health carrier that provides
prescription benefits as a covered benefit under a health benefit plan shall
ensure that prescription benefit claims are adjusted and paid in accordance
with the requirements of Ins 1001 and RSA 420-J:8-a.
(b) Any health carrier or PBM shall require all
participating pharmacies to charge any covered person the lesser of:
(1) The
pharmacy’s usual and customary price for filling the prescription; or
(2) The contracted
copayment.
(c) The health carrier or PBM shall not be in
violation of this section when the conditions set forth in RSA 420-J:8-a, IV
exist or the claim has been submitted fraudulently or with inaccurate or
misrepresented information.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.06 Complaint Process.
(a) Any pharmacy that fills prescriptions as a
covered benefit under a health benefit plan and is adversely affected by the
failure of a health carrier or a PBM to comply with RSA 420-J:7-b, X or RSA
415:26 may file a complaint with the commissioner.
(b) Complaints alleging violations of RSA
420-J:b, X or RSA 415:26 and received directly from pharmacies or referred from
the New Hampshire pharmacy board to the commissioner shall be investigated by
the commissioner in accordance with the provisions of RSA 400-A:16.
(c) The commissioner shall only investigate
substantiated complaints that relate to a fully insured plan within the
commissioner’s jurisdiction.
(d) A “substantiated complaint” means a complaint
that includes all the following information:
(1) The name,
address, and license number of the pharmacy filing the complaint;
(2) The name and
license number of, and the contact information for, a pharmacist who supports
the allegations in the complaint filed;
(3) Information
concerning the prescription, including the name of the prescription dispensed
and the quantity and dose of the prescription dispensed, with units expressed
in terms of volume, number of tablets or capsules, weight, or in other
measurement;
(4) The name of
the health carrier and the name of the pharmacy benefits manager, if a pharmacy
benefits manager is involved in the prescription claim made by the consumer;
(5) A legible
copy of the front and back of the consumer’s insurance card for prescription
benefits;
(6) The name of
the subscriber to the health benefit plan, if that information is not shown on
the consumer’s insurance card;
(7) The date
the pharmacy dispensed the prescription to the consumer;
(8) The name of
the consumer that requested coverage for the prescription at issue in the
complaint; and
(9) Written
evidence that supports the allegations of violation.
(e) The commissioner shall inform the pharmacy if
the filed complaint is unsubstantiated and what missing information is needed.
(f) The commissioner shall hold any complaint
that is not substantiated in pending status for 90 days from the date of the
notice described in (e) to allow the pharmacy to submit required missing
information. If missing information is not
provided within 90 days of the date of the notice described in (e), the
complaint that is not substantiated shall be closed.
(g) Any
consumer may file a complaint with the commissioner. Consumer complaints shall be investigated in
accordance with RSA 400-A:15-e.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.07 Enforcement. A PBM shall be subject to the provisions of
RSA 402-N:2, III for the following reasons:
(a) Failure to comply with any provisions of this
part or of RSA 402-N;
(b) Failure to comply with any lawful order of
the commissioner;
(c) Committing an unfair or deceptive act or
practice as described in RSA 417;
(d) Filing an application or any necessary forms
with the department which contain fraudulent information or omissions;
(e) Misappropriation, conversion, illegal
withholding, or refusal to pay over, upon proper demand, any monies that belong
to a person otherwise entitled to them and that have been entrusted to the PBM;
(f) Evidence that an owner, principal, officer,
partner, manager, director, trustee, or the PBM itself has:
(1) Had an insurance license or an application
for an insurance license in any state denied, suspended, or revoked;
(2) Been the subject of a fine, penalty, order,
withdrawal, or informal settlement with any state insurance department; or
(3) Pled guilty or no contest to any felony or
misdemeanor; or
(g) Failure to meet any qualification for which
registration would have been refused had such failure then existed and been
known to the Department.
Source. (See Revision Note
at part heading for Ins 2704) #13059, eff 6-29-20
Ins
2704.08 Reporting to the New
Hampshire Board of Pharmacy.
(a) The commissioner shall prepare public reports
with regard to the complaints received from pharmacies or the New Hampshire
board of pharmacy under this part.
(b) The public report shall contain the following
information:
(1) A unique
numerical identifier for each complaint received;
(2) The name,
address, and license number of the pharmacy filing the complaint;
(3) The name
and license number of the pharmacist who supports the allegations in the
complaint filed;
(4) The name of
the health carrier and the name of the PBM, if a PBM is involved in the
prescription claim made by the consumer;
(5) The date
the complaint was received;
(6) The nature
of the complaint received, to include the prescription at issue, the facts
concerning the complaint, and the section of rule or law that is alleged to
have been violated;
(7) The status
of the investigation or an indication that the complaint is in pending status,
awaiting information from the pharmacy;
(8) The date of
the final resolution of the complaint, if the complaint has been resolved; and
(9) A
description of the final resolution of the complaint, to include the legal and
factual findings of the commissioner as to the alleged violation.
(c)
The report shall be posted electronically on the department’s website at
http://www.nh.gov/insurance/ at least quarterly and shall also be transmitted
to the New Hampshire board of pharmacy.
(d) The commissioner shall provide to any
complaining pharmacy, upon request, a report of the status of complaints filed
by that pharmacy, which shall contain the information set forth in (b) above.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins 2704.09 Confidentiality. In accordance with RSA 400-A:16, III, RSA
402-N:6, II, and except as otherwise provided in this part, all information
collected, obtained, or otherwise in the control or possession of the
commissioner from any source relating to any investigation pursuant to this
part shall be confidential by law and privileged, shall not be subject to RSA
91-A, shall not be subject to subpoena, and shall not be subject to discovery
or admissible as evidence in any private civil action.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins 2704.10 Periodic Audit.
(a) The commissioner
shall examine a PBM pursuant to RSA 400-A:37 and RSA 402-N:7. The cost of the audit shall be paid by the
PBM pursuant to RSA 402-N:7. Audits
shall include premium collection, claims processing, and marketing practices.
(b) The PBM shall
have continuing access to all books and records in order to fulfill its
contractual obligations.
(c) All books and
records maintained by the PBM as part of that contractual obligation shall:
(1) Be owned by the health carrier or the PBM;
(2) Conform to the standards of insurance record keeping
required of insurers subject to filing an annual audited financial statement
pursuant to RSA 400-A:36;
(3) Be retained for 5 years from the date of
their creation; and
(4) Be subject to examination by the commissioner
or the insurer for which the records are kept.
(d) Upon termination
of an agreement between the PBM and the health carrier pursuant to the
termination provisions in the agreement, the records may be transferred to a
new PBM in lieu of the required 5 year retention. If such a transfer occurs, the new PBM shall
acknowledge in writing receipt and responsibility for the transferred records.
Source. (See Revision Note
at part heading for Ins 2704) #13059, eff 6-29-20
Ins 2704.11 Inquiry by Commissioner.
(a) The commissioner
shall address any inquiries to the PBM concerning its PBM business. The PBM shall reply in writing within 10
working days to any inquiry made by the commissioner pursuant to RSA 400-A:16,
II.
(b) A PBM shall keep all
complaints on file for a period of 5 years.
Complaint information shall be made available to the department by the
PBM upon the commissioner's request.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
Ins 2704.12 Waiver of Rules.
(a) The commissioner,
upon the commissioner’s own initiative or upon request by an insurer, shall
waive any requirement of this part if such waiver does not contradict the
objective or intent of the rule and:
(1) Applying the rule provision would cause
confusion or would be misleading to consumers;
(2) The rule provision is in whole or in part
inapplicable to the given circumstances;
(3) There are specific circumstances unique to
the situation such that strict compliance with the rule would be onerous
without promoting the objective or intent of the rule provision; or
(4) Any other similar extenuating circumstances
exist such that application of an alternative standard or procedure better
promotes the objective or intent of the rule provision.
(b) No requirement
prescribed by statute shall be waived unless expressly authorized by law.
(c) Any person or
entity seeking a waiver shall make a request in writing.
(d) A request for a
waiver shall specify the basis for the waiver and proposed alternative, if any.
(e)
Any waiver granted shall expire no later than the end of the
registration period. Upon renewal of the
registration, the applicant may request another waiver.
Source. (See Revision
Note at part heading for Ins 2704) #13059, eff 6-29-20
PART Ins 2705
UNIFORM PRIOR AUTHORIZATION FORMS AND ELECTRONIC STANDARD FOR
PRESCRIPTION DRUG BENEFITS
Statutory Authority:
RSA 400-A:15, I; RSA 420-E:4-a, III; and RSA 420-J:7-b, IV-c (c)
Ins
2705.01 Purpose. The purpose of these rules is to provide
administrative simplification in the prior authorization process for
prescription drugs, to encourage the use of electronic prior authorization
technology, and to support adoption by health insurers, pharmacy benefits
managers, and utilization review entities of nationally recognized standards or
processes for electronic prior authorization of prescription drugs.
Ins
2705.02 Scope.
(a) These rules shall apply to:
(1) All health
carriers, health maintenance organizations, health services corporations, and
preferred provider programs in the state of New Hampshire in connection with
managed care coverage governed by RSA 420-J or when using a utilization review
entity subject to RSA 420-E;
(2) Any
pharmacy benefits manager with which any of the aforementioned entities
contracts to perform prior authorization services for prescription drug
benefits; and
(3) All
utilization review entities.
(b) These rules shall not apply to the Medicaid managed
care program under RSA 126-A:5, XIX.
(c) These rules shall not apply to drugs
administered directly by a medical provider in a medical setting.
Ins 2705.03 Definitions.
(a)
“Carrier clinical review criteria” means written criteria that use
nationally accepted standards of medical practice consistent with RSA 420-J:6
VI, and that have been adopted and made public by a health insurer, pharmacy
benefits manager, or utilization review entity for determining the
circumstances in which use of a particular prescription drug is appropriate.
(b)
“Electronic prior authorization” (ePA) means prior authorization
processes conducted through a health carrier’s web portal or any other
secure electronic manner of transmission.
(c)
“Health carrier” means “health carrier” as
defined in RSA 420-G:2.
(d)
“Health insurer” means those health insurance companies subject to this
rule pursuant to Ins 2705.02(a)(1).
(e)
“Health maintenance organization” means “health maintenance
organization” as defined in RSA 420-B:1.
(f)
“Health services corporation” means “health services corporation” as defined
in RSA 420-A:1.
(g)
“Pharmacy benefits manager” means a person who
performs pharmacy benefits management services, including a person acting on
behalf of a pharmacy benefits manager in a contractual or employment
relationship in the performance of pharmacy benefits management services for a
covered entity. “Pharmacy benefits
management” means the administration of prescription drug benefits provided by
a covered entity under the terms and conditions of the contract between the
pharmacy benefits manager and the covered entity and the provision of mail
order pharmacy services.
(h) “Preferred provider program” means a program in which a health insurer contracts with or
designates preferred providers as defined in RSA 420-C:2.
(i) “Prescribing provider” means any person who is lawfully entitled to prescribe,
administer, dispense, or distribute prescription drugs to patients.
(j)
“Prescription drug” means:
(1) A drug dispensed from a
pharmacy directly to the consumer which, under federal law, is required, prior
to being dispensed or delivered, to be labeled with any of the following
statements:
a. “Caution: federal law prohibits dispensing without
prescription”;
b. “Caution: federal law
restricts this drug to use by or on the order of the licensed veterinarian”; or
c. “RX only”; or
(2) A drug which is
required by any applicable federal or state law or regulation to be dispensed
on prescription only and that is
dispensed from a pharmacy directly to the consumer.
(k)
“Prior authorization” means utilization review conducted prior to a
patient’s service or course of treatment.
(l)
“Uniform prior authorization forms” means the forms set forth in Ins
2705.04(a) and to be used by health insurers, pharmacy benefits managers, and
utilization review entities for prior authorization of prescription drugs
pursuant to RSA 420-J:7-b, IV-c (b) and RSA 420-E:4-a, II. “Uniform prior authorization forms” includes
both the versions of the forms that are prepopulated pursuant to Ins 2705.04(c)
and those that are not prepopulated.
(m) “Utilization review entity” means any person, partnership, or corporation which provides
utilization review services subject to RSA 420-E.
Ins
2705.04 Format of Uniform Prior
Authorization Forms.
(a) The appearance of the uniform prior authorization
forms shall be as illustrated in Appendix B.
(b) Health insurers, pharmacy benefits managers,
and utilization review entities shall reproduce and accept the uniform prior
authorization forms without changes except as provided in (c) below.
(c)
Health insurers shall ensure that Section A “Destination of Request” of the
uniform prior authorization forms is prepopulated before the forms are made
available and accessible online pursuant to Ins 2705.05(a).
(d) The uniform prior authorization forms shall
be completed as follows:
(1) Section A
shall be pre-populated pursuant to paragraph (c) above, with the following
information:
a. Insurer or
Pharmacy Benefits Manager (PBM) Name – company to which the form shall be
submitted;
b. Phone # –
phone number for contacting the company regarding prior authorization;
c. Fax # –
secure fax number for submitting the request; and
d. Electronic
Prior Authorization Webpage – webpage for submitting prior authorization
requests electronically, as applicable;
(2) Section B
shall be completed by the prescribing provider to indicate the type of request
being made by checking the appropriate box(es) to indicate:
a. Whether the request is being made for the first time
or is a request for continuation or renewal of an existing prior authorization;
and
b. Whether expedited review is being requested and, if
so, the treating provider shall initial to make the following attestation:
“By initialing here, I, as
the treating provider, attest to the fact that this request meets the URAC
(Utilization Review Accreditation Commission) health accreditation standards
for urgent care in that adherence to the standard timelines: a) could seriously
jeopardize the life or health of the patient or the ability of the patient to
regain maximum function; or b) would subject the patient to severe pain that
cannot be adequately managed without the treatment being requested”;
(3) Section C shall be completed by the
prescribing provider to provide identifying information about the patient
for whom the drug is being requested as follows:
a. Patient’s Full Name – first, middle, and last name (or
middle initial) of patient
and any suffix;
b. DOB – patient’s month, day, and year of
birth;
c. Member ID # - patient’s insurer or PBM member
identification number as displayed on the patient’s insurance card; and
d. Group # - patient’s
insurer or PBM group number as displayed on the patient’s insurance card;
(4) Section D shall be completed by the
prescribing provider to provide identifying and contact information for the
prescribing provider as follows:
a. Prescribing Provider – name of the provider
prescribing the medication being requested;
b. Phone # – phone number for contacting the
prescribing provider regarding the prior authorization request;
c. Address –
mailing address for sending prior authorization determinations to the
prescribing provider;
d. Secure Fax # – secure fax number for sending
prior authorization determinations to the prescribing provider;
e. Specialty – the prescribing provider’s
specialty (if multiple, include the specialty relevant to the request);
f. Prescribing Provider NPI # - the prescribing
provider’s National Provider Identifier number;
g. Prescribing Provider DEA # - the number
assigned to the prescribing provider by the U.S. Drug Enforcement
Administration allowing the provider to write prescriptions for controlled
substances;
h. Prescriber Point of Contact (POC) Name – a person
in the provider’s office (if different than the prescribing provider) that can
be contacted regarding the prior authorization request;
i. POC Phone # – phone number for contacting the
POC regarding the prior authorization request;
j. POC Secure Fax # – secure fax number for
sending prior authorization determinations to the POC;
k. POC Email – email address for contacting the
POC regarding the prior authorization request (not required); and
l. Signature / Date – form must be signed and
dated by the prescribing provider or an authorized designee;
(5) Section E shall be completed by the
prescribing provider to provide information about the patient’s diagnosis and
the medication being requested as follows:
a. Primary Diagnosis Related to the Medication
Request – patient’s diagnosis related to which the medication is being
requested;
b. Medication Requested – medication name;
c. Strength – medication strength being
prescribed;
d. Quantity – quantity of the medication being
prescribed;
e. Dosing Schedule – frequency of administration
of medication being prescribed;
f. Length of Therapy – duration prescribed for
medication;
g. Date of Prescription – date medication was
prescribed;
h. Current Treatment – indicate if this is an
ongoing treatment and, if it is, the date it was started; and
i. Dispense as Written (DAW) Specified –
indicate if an alternate version or medication is not to be substituted for the
requested medication; if yes, provide rationale for DAW by checking the
appropriate box(es) as listed below and
providing additional information as required:
“1. Alternate therapies
contraindicated or previously tried (please provide more information in Section
F);
2. Complex patient with one or more chronic
conditions (including, for example, psychiatric condition, diabetes) is stable
on current drug(s); high risk of significant adverse clinical outcome with
medication change (specify anticipated significant adverse clinical outcome in
space below);
3. Medical need for increase in current dosage,
strength and / or frequency (specify in space below: (1) dosage, strength(s)
and / or frequency(s) tried; (2) medical reason);
4. Absence of appropriate
formulation or indication of the drug (specify in space below); and
5. Other (specify in space below)”; and
(6) Section F shall be completed by the prescribing
provider to provide information about the patient’s health and treatment if it
is relevant to the medication being requested as follows:
a. Drug Allergies - patient’s current drug
allergies;
b. Height - patient’s current height;
c. Weight - patient’s current weight;
d. Relevant Lab Values/Test Results – the name,
results, and date of any laboratory or other tests that are relevant to the
request;
e. Previous Medications and/or Non-Pharmacologic
Therapies Tried /Failed – any alternate prescription drug or non-pharmacologic
therapies tried by the patient for the same purpose for which the requested
medication is being prescribed, to include (as relevant) medication or therapy
name; strength; dosing schedule prescribed; date prescribed/started; date
stopped; and description of adverse reaction or failure;
f. Contraindications to alternate therapies –
the name of any alternate therapy that cannot be used because it may be harmful
and description of the contraindication(s); and
h. Additional information – the prescribing
provider may provide any additional information to support this request.
Ins
2705.05 Use of Uniform Prior Authorization
Forms and Electronic Standard for Prescription Drug Benefits.
(a) Health insurers shall ensure that the version
of the uniform prior authorization form that they have prepopulated pursuant to
Ins 2705.04(c) is available and accessible in a centralized location online.
(b) Except as provided in (c) below, health
insurers, pharmacy benefits managers, and utilization review entities shall
treat the information submitted via uniform prior authorization forms as
sufficient information upon which a decision regarding the prior authorization
request shall be made as follows:
(1) Health
insurers, pharmacy benefits managers, and utilization review entities shall not
require prescribing providers to provide information in excess of the
information required on the uniform prior authorization forms; and
(2) Health
insurers, pharmacy benefits managers, and utilization review entities shall
not:
a. Require or allow prescribing providers
to submit information on a form other than the uniform prior authorization
forms, even if the other form contains the same information as the uniform prior authorization forms; or
b. Require or request that prescribing
providers submit any form or information in addition to the uniform prior
authorization forms.
(c) Following receipt of uniform prior
authorization forms that have been filled out and submitted, health insurers,
pharmacy benefits managers, and utilization review entities may request that
prescribing providers submit additional information to clarify information
specifically requested on the uniform prior authorization forms only to the
extent that:
(1) The
prescribing provider provided information that conflicts with the records of
the health insurer, pharmacy benefits manager, or utilization review entity; or
(2) The
prescribing provider did not provide the information requested by the uniform
prior authorization forms, including but not limited to clinical information
that is needed in accordance with the carrier clinical review criteria and that
would typically be supplied in Section F, except that prescribing providers
shall not be required to complete Section A “Destination of Request” of the
uniform prior authorization forms or ePA.
(d) Failure
of a prescribing provider to complete section F or any portion thereof shall
not be grounds for denial of prior authorization by a health insurer, pharmacy
benefits manager, or utilization review entity, except to the extent the
information not provided is required under the carrier clinical review
criteria, and the health insurer, pharmacy benefits manager, or utilization
review entity has inquired about the information in accordance with (c)(2)
above.
Ins
2705.06 Standards for Electronic
Prior Authorization Processes.
(a) The information collected by health insurers,
pharmacy benefits managers, and utilization review entities via ePA,
telephonically, or through any other manner of transmission shall be the same
as the information collected via the uniform prior authorization forms except
as specified in (b) below, or in accordance with a waiver granted under Ins
2705.09 below.
(b) Prescription drug prior authorization
procedures conducted through ePA, telephonically, or through any other manner
of transmission shall not require the prescribing provider to provide more information
than is required by the uniform prior authorization forms, except that health
insurers, pharmacy benefits managers, and utilization review entities may:
(1) Ask for the
same information in a different manner via ePA, including converting questions
on the uniform prior authorization forms that require free-form text into one
or more questions with multiple choice or drop-down options;
(2) Ask for the
following additional information via ePA:
a. Patient
address; and
b. Patient
gender;
(3) Eliminate
Section A “Destination of Request” in ePA; and
(4) Ask for
less information via ePA.
(c) Upon review of an ePA request and consistent
with Ins 2705.05, a health insurer, pharmacy benefits manager, or utilization
review entity may request additional clinical information or clarification
necessary to render a decision on the ePA request. Such additional information may only be
requested when it is required by the carrier clinical
review criteria.
(d) ePA processes shall be completed via secure
electronic transactions via secure web portals.
(e) ePA processes shall comply with all
applicable state and federal laws, including but not limited to the Health
Insurance Portability and Accountability Act of 1996.
Ins
2705.07 Outreach to Prescribing
Providers. Health insurers, pharmacy
benefits managers, and utilization review entities shall educate contracted and
other prescribing providers about the uniform prior authorization forms,
including in partnership with membership organizations that represent those
prescribing providers.
Ins
2705.08 Revisions.
(a) Upon receipt of a rulemaking petition under
RSA 541-A:4 asserting that one or more provisions in these
rules prevents health insurers, pharmacy benefits managers, and utilization
review entities from adopting nationally recognized standards or processes for
electronic prior authorization of prescription drugs, including those provided
by the National Council for Prescription Drug Programs or an equivalent
organization, the commissioner shall consider amending Ins 2705 to eliminate
such conflict.
(b) Upon receipt of a rulemaking petition under
RSA 541-A:4 outlining the need for and proposed content of one or more
additional prior authorization forms for specific types, classifications,
or categories of prescription drugs, the commissioner shall consider amending
Ins 2705 to create one or more medication-specific versions of the uniform
prior authorization forms.
Ins
2705.09 Waivers to Support Use of
National ePA Standards.
(a) Upon written
request of a health insurer, pharmacy
benefits manager, or utilization review entity, the department shall grant in writing a
waiver of the requirements of one or more provisions of Ins 2705.06 upon a showing by the health insurer, pharmacy benefits manager, or utilization review
entity, that:
(1) The
health insurer, pharmacy benefits manager, or utilization review entity has
adopted or plans to adopt the use of a nationally recognized standard for ePA
of prescription drugs, including but not limited to standards provided by the
National Council for Prescription Drug Programs or an equivalent organization;
(2) One or more
provisions in these rules prevent the effective use of the nationally
recognized standard;
(3) The modifications permitted under Ins 2705.06(b)
do not effectively address the conflict between the rule and the national
standard; and
(4) The waiver request outlines with specificity the
requested modification to the uniform requirements of this part that will
eliminate the conflict.
(b) A health
insurer, pharmacy benefits manager, or
utilization review entity that has been granted a waiver pursuant to (a) above shall comply with
all provisions of Ins 2705 except as expressly described in the department’s
written document granting the waiver.
APPENDIX
Rule |
Specific State Statute the Rule Implements |
|
|
Ins 2701.01 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.02 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.03 |
RSA 400-A:15, I; RSA 420-J:3;
RSA 420-J:7, II |
Ins 2701.04 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12; 45 CFR 156.230 |
Ins 2701.05 |
RSA 400-A:15, I; RSA
420-J:7, II(b); 45 CFR 156.235 |
Ins 2701.06 |
RSA 400-A:15, I; RSA
420-J:7, II(c) |
Ins 2701.07 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.08 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.09 |
RSA 400-A:15, I; RSA
420-J:7, II(a) |
Ins 2701.10 |
RSA 400-A:15, I; RSA
420-J:7, II(b); RSA 420-J:12 |
Ins 2701.11 |
RSA 400-A:15, I; RSA 420-J:7
III and IV; RSA 420-J:12 |
Ins 2701.12 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.13 |
RSA 400-A:15, I; RSA
420-J:7, II; RSA 420-J:12 |
Ins 2701.14 |
RSA 400-A:15, I; RSA
541-A:22, IV |
|
|
Ins 2702.01 |
RSA 400-A:15, I; RSA
415:18-a, VIII; 29 USC 1185a (HR 1424-117) |
Ins 2702.02 |
RSA 400-A:15, I; RSA
415:18-a, VIII; 29 USC 1185a (HR 1424-117) |
Ins 2702.03 |
RSA 400-A:15, I; RSA
415:18-a, VIII; 29 USC 1185a (HR 1424-117) |
Ins 2702.04 |
RSA 400-A:15, I; RSA 415:18-a,
VIII; 29 USC 1185a (HR 1424-117) |
Ins 2702.05 |
RSA 400-A:15, I; RSA
415:18-a, VIII; RSA 541-A:22, IV |
|
|
Ins 2703.01 |
RSA 420-J:3; RSA 420-J:5-a through 5-e |
Ins 2703.02 |
RSA 420-J:1; RSA 420-J:2 |
Ins 2703.03 |
RSA 420-J:5-a |
Ins 2703.04 |
RSA 420-J:5 |
Ins 2703.05 |
RSA 420-J:5-b |
Ins 2703.06 |
RSA 420-J:5-c |
Ins 2703.07 |
RSA 420-J:5-d |
Ins 2703.08 |
RSA 420-J:5-e |
Ins 2703.09 |
RSA 420-J:5-e |
|
|
Ins 2704.01 |
RSA 400-A:15, I; RSA 415:26; RSA 402-N:2; RSA
420-J:7-b, X; RSA 420-J:12 |
Ins 2704.02 |
RSA 318:1, XI; RSA 318:2; RSA 400-A:15, I; RSA
402-N:1; RSA 415:26; RSA 420-G:2, IX; RSA 420-J:3, XIX; RSA
420-J:7-b, X; RSA 420-J:12 |
Ins 2704.03 |
RSA 400-A:15, I; RSA 402-N:2 |
Ins 2704.04 |
RSA 400-A:15, I; RSA 402-N:2; RSA 402-N:6 |
Ins 2704.05 |
RSA 400-A:15, I; RSA 402-N:4; RSA 415:26; RSA
420-J:7-b, X; RSA 420-J:8-a, IV; RSA 420-J:12 |
Ins 2704.06 |
RSA 400-A:15, I; RSA 400-A:16; RSA 402-N:5RSA
415:26; RSA 420-J:7-b, X; RSA 420-J:12 |
Ins 2704.07 |
RSA 400-A:15, I; RSA 400-A:16; RSA 400-A:17-24; RSA
402-N:2; RSA 415:26; RSA 417; RSA 420-J:7-b, X; RSA 420-J:12;
RSA 420-J:14 |
Ins 2704.08 |
RSA 400-A:15, I; RSA 402-N:5, II; RSA 415:26; RSA
420:J:7-b, X; RSA 420-J:12 |
Ins 2704.09 |
RSA 400-A:15, I; RSA 400-A:16, III; RSA 402-N:6, II;
RSA 420-J:10-12 |
Ins 2704.10 |
RSA 400-A:15, I; RSA 400-A:37; RSA 402-N:2; RSA
402-N:7 |
Ins 2704.11 |
RSA 400-A:15, I; RSA 400-A:16, II; RSA 402-N:2 |
Ins 2704.12 |
RSA 400-A:15, I; RSA 541-A:22, IV |
|
|
Ins 2705.01 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c) |
|
|
Ins 2705.02 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c) |
Ins 2705.03 |
RSA 400-A:15, I; 420-A:1; 420-B:1; 420-C:2;
420-E:4-a, II and III; 420-G:2; 420-J:7-b, IV-c (b) and (c) |
Ins 2705.04 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c) |
Ins 2705.05 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c |
Ins 2705.06 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c ; Pub. L. 104-191, Stat. 1936 |
Ins 2705.07 |
RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c |
Ins 2705.08 |
RSA 400-A:15, I |
Ins 2705.09 |
RSA 400-A:15, I |