October 1, 2015, Introduced by Rep. Barrett and referred to the Committee on Insurance.
A bill to amend 2000 PA 251, entitled
"Patient's right to independent review act,"
by amending sections 3, 5, 7, 9, 11, 13, 17, 19, 23, 25, and 27
(MCL 550.1903, 550.1905, 550.1907, 550.1909, 550.1911, 550.1913,
550.1917, 550.1919, 550.1923, 550.1925, and 550.1927), section 3 as
amended by 2006 PA 542 and sections 11, 13, and 23 as amended by
2000 PA 398.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. As used in this act:
(a) "Adverse determination" 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 that is a covered benefit
has been reviewed and, has
been
based on the information
provided, does not meet the health
carrier's requirements for medical necessity, appropriateness,
health care setting, level of care, or effectiveness, and the
requested service or payment for the service is therefore denied,
reduced, or terminated. Failure to respond in a timely manner to a
request
for a determination constitutes is
an adverse
determination.
(b) "Ambulatory review" means utilization review of health
care services performed or provided in an outpatient setting.
(c) "Authorized representative" means any of the following:
(i) A person to whom a covered person has given express
written consent to represent the covered person in an external
review.
(ii) A person authorized by law to provide substituted consent
for a covered person.
(iii) If the covered person is unable to provide consent, a
family member of the covered person or the covered person's
treating health care professional.
(d) "Case management" means a coordinated set of activities
conducted for individual patient management of serious,
complicated, protracted, or other health conditions.
(e) "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.
(f) "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.
(g)
"Commissioner" means the commissioner of the office of
financial
and insurance services.
(g) (h)
"Concurrent review" means
utilization review conducted
during a patient's hospital stay or course of treatment.
(h) (i)
"Covered benefits" or
"benefits" means those health
care services to which a covered person is entitled under the terms
of a health benefit plan.
(i) (j)
"Covered person" means a
policyholder, subscriber,
member, enrollee, or other individual participating in a health
benefit plan.
(j) "Department" means the department of insurance and
financial services.
(k) "Director" means the director of the department.
(l) (k)
"Discharge planning" means
the formal process for
determining,
prior to before discharge from a facility, the
coordination and management of the care that a patient receives
following
discharge from a the facility.
(m) (l) "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) "Evidence-based standard" means the conscientious,
explicit, and judicious use of the current best evidence based on
the overall systematic review of the research in making decisions
about the care of individual patients.
(o) (m)
"Expedited internal
grievance" means an expedited
grievance under section 2213(1)(l) of the insurance code of 1956,
1956 PA 218, MCL 500.2213, or section 404(4) of the nonprofit
health care corporation reform act, 1980 PA 350, MCL 550.1404.
(p) (n)
"Facility" or
"health facility" means:
(i) A facility or agency or a part of a facility or agency
that is licensed or authorized under parts 201 to 217 of the public
health
code, 1978 PA 368, MCL 333.20101 to 333.21799e. , or a
licensed
part thereof.
(ii) A psychiatric hospital, psychiatric unit, partial
hospitalization psychiatric program, or center for persons with
disabilities
operated by the department of community health and
human services or certified or licensed under the mental health
code, 1974 PA 258, MCL 330.1001 to 330.2106.
(iii) A facility providing outpatient physical therapy
services, including speech pathology services.
(iv) A kidney disease treatment center, including a
freestanding hemodialysis unit.
(v) An ambulatory health care facility.
(vi) A tertiary health care service facility.
(vii) A substance abuse treatment use disorder services
program
licensed under parts 61 to 65 part
62 of the public health
code,
1978 PA 368, MCL 333.6101 to 333.6523.333.6230 to 333.6251.
(viii) An outpatient psychiatric clinic.
(ix) A home health agency.
(q) "Final adverse determination" means an adverse
determination involving a covered benefit that has been upheld by a
health carrier, or its designee utilization review organization, at
the completion of the health carrier's internal grievance process
procedures as set forth in section 2213 of the insurance code of
1956, 1956 PA 218, MCL 500.2213, or sections 404 or 407 of the
nonprofit health care corporation reform act, 1980 PA 350, MCL
550.1404 and MCL 550.1407.
(r) (o)
"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 covered health care services.
(s) (p)
"Health care
professional" means a person an
individual
licensed, certified, or registered, or otherwise
authorized
to engage in a health profession under
parts 61 to 65 or
161
to 183 of the public health code, 1978 PA 368, MCL 333.6101 to
333.6523,
and MCL 333.16101 to 333.18311.333.18315.
(t) (q)
"Health care provider" or
"provider" means a health
care professional or a health facility.
(u) (r)
"Health care services"
means services for the
diagnosis, prevention, treatment, cure, or relief of a health
condition, illness, injury, or disease.
(v) (s)
"Health carrier" means an
entity a person that is
subject to the insurance laws and regulations of this state, or
subject
to the jurisdiction of the commissioner, director, that
contracts or offers to contract to provide, deliver, arrange for,
pay for, or reimburse any of the costs of health care services,
including a sickness and accident insurance company, a health
maintenance organization, a nonprofit health care corporation, a
nonprofit dental care corporation operating under 1963 PA 125, MCL
550.351
to 550.373, or any other entity person providing
a plan of
health insurance, health benefits, or health services. Health
carrier does not include a state department or agency administering
a plan of medical assistance under the social welfare act, 1939 PA
280, MCL 400.1 to 400.119b.
(w) (t)
"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 or
more of the following:
(i) The past, present, or future physical, mental, or
behavioral health or condition of an individual or a member of the
individual's family.
(ii) The provision of health care services to an individual.
(iii) Payment for the provision of health care services to an
individual.
(x) (u)
"Independent review
organization" means an entity a
person that conducts independent external reviews of adverse
determinations.
(y) "Medical or scientific evidence" means evidence found in
any of the following sources:
(i) Peer-reviewed scientific studies published in or accepted
for publication by medical journals that meet nationally recognized
requirements for scientific manuscripts and that submit most of
their published articles for review by experts who are not part of
the editorial staff.
(ii) Peer-reviewed medical literature, including literature
relating to therapies reviewed and approved by a qualified
institutional review board, biomedical compendia, and other medical
literature that meet the criteria of the National Institutes of
Health's United States National Library of Medicine for indexing in
the former Index Medicus or its current online version, MEDLINE,
and Elsevier B. V. for indexing in EMBASE.
(iii) Medical journals recognized by the secretary of the
United States Department of Health and Human Services under 42 USC
1395x(t)(2)(B)(ii)(I).
(iv) The following standard reference compendia:
(A) The American Hospital Formulary Service drug information.
(B) Drug facts and comparisons.
(C) The American Dental Association's accepted dental
therapeutics.
(D) The United States Pharmacopoeia drug information.
(v) Findings, studies, or research conducted by or under the
auspices of federal government agencies and nationally recognized
federal research institutes, including the following:
(A) The Agency for Healthcare Research and Quality.
(B) The National Institutes of Health.
(C) The National Cancer Institute.
(D) The National Academy of Sciences.
(E) The Centers for Medicare and Medicaid Services.
(F) The United States Food and Drug Administration.
(G) Any national board recognized by the National Institutes
of Health for the purpose of evaluating the medical value of health
care services.
(vi) Any other medical or scientific evidence that is
comparable to the sources listed in subparagraphs (i) to (v).
(z) "Person" means an individual or a corporation,
partnership, association, joint venture, joint stock company,
trust, unincorporated organization, or similar entity, or any
combination of these.
(aa) (v) "Prospective review" means utilization
review
conducted
prior to before an admission or a course of treatment.
(bb) (w)
"Protected health
information" means health
information that identifies an individual who is the subject of the
information or with respect to which there is a reasonable basis to
believe that the information could be used to identify an
individual.
(cc) (x)
"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.
(dd) (y)
"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.
(ee) (z)
"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 may include ambulatory review,
prospective review, second opinion, certification, concurrent
review, case management, discharge planning, or retrospective
review.
(ff) (aa)
"Utilization review
organization" means an entity a
person that conducts utilization review, other than a health
carrier performing a review for its own health plans.
Sec. 5. (1) Except as otherwise provided in subsection (2),
this
act applies to all health carriers. that provide or perform
utilization
review.
(2) This act does not apply to a policy or certificate that
provides coverage only for specified accident or accident-only
coverage, credit, disability income, hospital indemnity, long-term
care insurance, as that term is defined in section 3901 of the
insurance code of 1956, 1956 PA 218, MCL 500.3901, or any other
limited supplemental benefit other than specified disease, dental,
vision care, or care provided pursuant to a system of health care
delivery and financing operating under section 3573 of the
insurance
code of 1956, 1956 PA 218, MCL 500.3573, medicare
Medicare supplement policy of insurance, coverage under a plan
through
medicare, Medicare, or the federal employees health
benefits
program, any coverage issued under chapter 55 of title 10
of
the United States Code, 10 U.S.C.
USC 1071 to 1109, 1110b, and
any coverage issued as supplement to that coverage, any coverage
issued as supplemental to liability insurance, worker's disability
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.
Sec. 7. (1) A health carrier shall provide written notice to a
covered
person in plain English of the internal grievance and
external review processes at the time the health carrier sends
written notice of an adverse determination.
(2) Except as provided in subsection (3)(a), a request for an
external
review under section 11 or 13 shall must not be made until
the covered person has exhausted the health carrier's internal
grievance process provided for by law.
(3) The written notice of the right to request an external
review for an adverse determination issued before the service is
provided
to a covered person shall be in plain English and shall
must include all of the following:
(a) A statement informing the covered person of all of the
following:
(i) If the covered person has a medical condition where
such
that the time frame for completion of an expedited internal
grievance would seriously jeopardize the life or health of the
covered person or would jeopardize the covered person's ability to
regain maximum function, as substantiated by a physician either
orally or in writing, the covered person or the covered person's
authorized representative may file a request for an expedited
external review under section 13 at the same time the covered
person or the covered person's authorized representative files a
request for an expedited internal grievance subject to section
13(3). A covered person who files a request under this subparagraph
is considered to have exhausted the health carrier's internal
grievance process for purposes of subsection (2).
(ii) The covered person or the covered person's authorized
representative may file a grievance under the health carrier's
internal grievance process, but if the health carrier has not
issued a written decision to the covered person or the covered
person's authorized representative within the required time and
without the covered person or the covered person's authorized
representative requesting or agreeing to a delay, the covered
person or the covered person's authorized representative may file a
request
for external review under section 9 and shall be is
considered to have exhausted the health carrier's internal
grievance process for purposes of subsection (2).
(iii) A health carrier may waive its internal grievance
process and the requirement for a covered person to exhaust the
process before filing a request for an external review or an
expedited external review.
(iv) A health carrier that fails to comply with the
requirements of its internal grievance process is considered to
have exhausted the internal grievance process unless the failure or
failures are based on de minimis violations that do not cause, and
are not likely to cause, prejudice or harm to the covered person.
(b) A copy of the description of both the standard and
expedited external review procedures the health carrier is required
to provide under section 25, highlighting the provisions in the
external review procedures that give the covered person or the
covered person's authorized representative the opportunity to
submit additional information and including any forms used to
process an external review.
(c) As part of any forms provided under subdivision (b),
include
an authorization form, or other
document approved by the
commissioner,
director, by which the covered person, for purposes
of conducting an external review under this act, authorizes the
health carrier and health care provider to disclose protected
health information, including medical records, concerning the
covered person that are pertinent to the external review.
(4) The written notice of the right to request an external
review for an adverse determination issued after the service was
provided
to the covered person shall be in plain English, shall
must include the standard external review procedures information
required
in under subsection (3) , and shall be provided to the
covered person in the manner prescribed by the
commissioner.director.
Sec. 9. (1) Except for a request for an expedited external
review
under section 13, all requests for external review shall
must
be made in writing to the commissioner.director.
(2) A written notice required to be provided under this act
must be provided in a culturally and linguistically appropriate
manner, as required under 45 CFR 147.136(b)(2)(ii)(E).
(3) A health carrier may satisfy a requirement for the
delivery of a notice to a covered person under this act by
complying with 29 CFR 2520.104b-1(c) with respect to the use of
electronic communication.
Sec.
11. (1) Not later than 60 120
days after the date of
receipt of a notice of an adverse determination or final adverse
determination under section 7, a covered person or the covered
person's authorized representative may file a request for an
external
review with the commissioner. director.
Upon receipt of a
request
for an external review, the commissioner director
immediately shall notify and send a copy of the request to the
health carrier that made the adverse determination or final adverse
determination that is the subject of the request.
(2) Not later than 5 business days after the date of receipt
of
a request for an external review, the commissioner director
shall complete a preliminary review of the request to determine all
of the following:
(a) Whether the individual is or was a covered person in the
health benefit plan at the time the health care service was
requested
or, in the case of for a retrospective review, was a
covered person in the health benefit plan at the time the health
care service was provided.
(b) Whether the health care service that is the subject of the
adverse determination or final adverse determination reasonably
appears to be a covered service under the covered person's health
benefit plan.
(c) Whether the covered person has exhausted the health
carrier's internal grievance process, unless the covered person is
not required to exhaust the health carrier's internal grievance
process.
(d)
The Whether the covered person has provided all the
information
and forms required by the commissioner director that
are necessary to process an external review, including the health
information release form.
(e) Whether the health care service that is the subject of the
adverse determination or final adverse determination appears to
involve issues of medical necessity or clinical review criteria.
(3) If a request for an external review involves issues of
experimental or investigational service or treatment, not later
than 5 business days after the date of receipt of a request for an
external review, the director shall complete a preliminary review
of the request to determine all of the following:
(a) Whether the individual is or was a covered person in the
health benefit plan at the time the health care service was
requested or, for a retrospective review, was a covered person in
the health benefit plan at the time the health care service was
provided.
(b) Whether the recommended or requested health care service
or treatment that is the subject of the adverse determination or
final adverse determination is both of the following:
(i) A covered benefit under the covered person's health
benefit plan except for the health carrier's determination that the
service or treatment is experimental or investigational for a
particular medical condition.
(ii) Not explicitly listed as an excluded benefit under the
covered person's health benefit plan with the health carrier.
(c) Whether the covered person's treating physician has
certified that 1 or more of the following situations are
applicable:
(i) Standard health care services or treatments have not been
effective in improving the condition of the covered person.
(ii) Standard health care services or treatments are not
medically appropriate for the covered person.
(iii) There is no available standard health care service or
treatment covered by the health carrier that is more beneficial
than the recommended or requested health care service or treatment
described in subdivision (d).
(d) Whether the covered person's treating physician has done
either of the following:
(i) Recommended a health care service or treatment that the
physician certifies, in writing, is likely to be more beneficial to
the covered person, in the physician's opinion, than any available
standard health care services or treatments.
(ii) If the physician is a licensed, board certified or board
eligible physician qualified to practice in the area of medicine
appropriate to treat the covered person's condition, certified in
writing that scientifically valid studies using accepted protocols
demonstrate that the health care service or treatment requested by
the covered person that is the subject of the adverse determination
or final adverse determination is likely to be more beneficial to
the covered person than any available standard health care services
or treatments.
(e) Whether the covered person has exhausted the health
carrier's internal grievance process, unless the covered person is
not required to exhaust the health carrier's internal grievance
process under this act.
(f) Whether the covered person has provided all the
information and forms required by the director that are necessary
to process an external review, including the health information
release form.
(4) (3)
Upon completion of the a preliminary
review under
subsection
(2) or (3), the commissioner director immediately
shall
provide
a written notice in plain English to the covered person
and, if applicable, the covered person's authorized representative
as to whether the request is complete and whether it has been
accepted for external review.
(5) (4)
If On accepting a request is accepted for external
review,
the commissioner director shall do both of the following:
(a)
Include in the written notice under subsection (3) (4) a
statement that the covered person or the covered person's
authorized
representative may submit to the commissioner director
in writing within 7 business days following the date of the notice
additional information and supporting documentation that the
reviewing
entity shall will consider when conducting the external
review.
(b) Immediately notify the health carrier in writing of the
acceptance of the request for external review.
(6) (5)
If a request is not accepted for
external review
because
the request is not complete, the commissioner director
shall inform the covered person and, if applicable, the covered
person's authorized representative what information or materials
are needed to make the request complete. The covered person or, if
applicable, the covered person's authorized representative shall
provide the information or materials identified by the director
within 30 days after receiving the notification. If a request is
not
accepted for external review, the commissioner director shall
provide
written notice in plain English to the covered person, if
applicable, the covered person's authorized representative, and the
health carrier of the reasons for its nonacceptance.
(7) (6)
If a request is accepted for
external review and
appears to involve issues of medical necessity or clinical review
criteria,
the commissioner director shall assign an independent
review organization at the time the request is accepted for
external
review. The assigned independent review organization shall
must
be approved under this act to conduct
external reviews. and
The assigned independent review organization shall provide a
written
recommendation to the commissioner director on whether to
uphold or reverse the adverse determination or the final adverse
determination.
(8) (7)
If a request is accepted for
external review, does not
appear to involve issues of medical necessity or clinical review
criteria, and appears to only involve purely contractual provisions
of a health benefit plan, such as covered benefits or accuracy of
coding,
the commissioner director may keep the request and conduct
his or her own external review or may assign an independent review
organization
as provided in subsection (6) (7)
at the time the
request is accepted for external review. Except as otherwise
provided
in subsection (16), (18), if the commissioner director
keeps a request, he or she shall review the request and issue a
decision upholding or reversing the adverse determination or final
adverse determination within the same time limits and subject to
all other requirements of this act for requests assigned to an
independent review organization. If at any time during the
commissioner's
director's review of a request it is determined that
a request does appear to involve issues of medical necessity or
clinical
review criteria, the commissioner director shall
immediately assign the request to an independent review
organization approved under this act to conduct external reviews.
(9) (8)
In reaching a recommendation, the
reviewing entity is
not bound by any decisions or conclusions reached during the health
carrier's utilization review process or the health carrier's
internal grievance process.
(10) (9)
Not later than 7 business days
after the date of the
notice
under subsection (4)(b), (5)(b),
the health carrier or its
designee utilization review organization shall provide to the
reviewing entity the documents and any information considered in
making the adverse determination or the final adverse
determination.
Except as provided in subsection (10), (11), the
reviewing entity shall not delay the external review because of
failure by the health carrier or its designee utilization review
organization to provide the documents and information within 7
business
days. shall not delay the conduct of the external
review.
(11) (10)
Upon receipt of a notice from the
assigned
independent review organization that the health carrier or its
designee utilization review organization has failed to provide the
documents
and information within 7 business days, the commissioner
director may terminate the external review and make a decision to
reverse the adverse determination or final adverse determination
and shall immediately notify the assigned independent review
organization, the covered person, if applicable, the covered
person's authorized representative, and the health carrier of his
or her decision.
(12) (11)
The reviewing entity shall review
all of the
information
and documents received under subsection (9) (10) and
any other information submitted in writing by the covered person or
the covered person's authorized representative under subsection
(4)(a)
(5)(a) that has been forwarded by the commissioner.
director. Upon receipt of any information submitted by the covered
person or the covered person's authorized representative under
subsection
(4)(a), (5)(a), at the same time the commissioner
director forwards the information to the independent review
organization,
the commissioner director shall forward the
information to the health carrier.
(13) (12)
The health carrier may reconsider
its 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 does not delay
or terminate the external review. The external review may 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. Immediately upon
making the decision to reverse its adverse determination or final
adverse determination, the health carrier shall notify the covered
person, if applicable the covered person's authorized
representative, if applicable the assigned independent review
organization,
and the commissioner director
in writing of its
decision. The reviewing entity shall terminate the external review
upon receipt of the notice from the health carrier.
(14) (13)
In addition to the documents and
information
provided
under subsection (9), (10),
the reviewing entity, to the
extent the information or documents are available and the reviewing
entity considers them appropriate, shall consider the following in
reaching a recommendation:
(a) The covered person's pertinent medical records.
(b) The attending health care professional's recommendation.
(c) Consulting reports from appropriate health care
professionals and other documents submitted by the health carrier,
the covered person, the covered person's authorized representative,
or the covered person's treating provider.
(d) The terms of coverage under the covered person's health
benefit plan with the health carrier.
(e) The most appropriate practice guidelines, which may
include generally accepted practice guidelines, evidence-based
practice guidelines, or any other practice guidelines developed by
the federal government or national or professional medical
societies, boards, and associations.
(f) Any applicable clinical review criteria developed and used
by the health carrier or its designee utilization review
organization.
(15) If a request for an external review involves issues of
experimental or investigational service or treatment, in addition
to the documents and information provided under subsections (10)
and (14), the reviewing entity, in reaching a recommendation, shall
consider whether either of the following applies:
(a) The recommended or requested health care service or
treatment has been approved by the United States Food and Drug
Administration, if applicable, for the condition.
(b) Medical or scientific evidence or evidence-based standards
demonstrate that the expected benefits of the recommended or
requested health care service or treatment is more likely than not
to be beneficial to the covered person than any available standard
health care service or treatment and the adverse risks of the
recommended or requested health care service or treatment would not
be substantially increased over those of available standard health
care services or treatments.
(16) (14)
The assigned independent review
organization shall
provide
its recommendation to the commissioner not later than
director
within 14 days after the assignment by
the commissioner
director of the request for an external review. The independent
review organization shall include in its recommendation all of the
following:
(a) A general description of the reason for the request for
external review.
(b) The date the independent review organization received the
assignment
from the commissioner director
to conduct the external
review.
(c) The date the external review was conducted.
(d) The date of its recommendation.
(e) The principal reason or reasons for its recommendation.
(f) The rationale for its recommendation.
(g) References to the evidence or documentation, including the
practice guidelines, considered in reaching its recommendation.
(17) (15)
Upon receipt of the assigned
independent review
organization's
recommendation under subsection (14), (16), the
commissioner
director immediately shall review the recommendation
to ensure that it is not contrary to the terms of coverage under
the covered person's health benefit plan with the health carrier.
(18) (16)
The commissioner director shall
provide written
notice
in plain English to the covered person, if applicable the
covered person's authorized representative, and the health carrier
of the decision to uphold or reverse the adverse determination or
the
final adverse determination not later than within 7
business
days after the date of receipt of the selected independent review
organization's
recommendation. If the commissioner director has
kept
a request for review, the commissioner director shall provide
written
notice in plain English to the covered person, if
applicable the covered person's authorized representative, and the
health
carrier of his or her decision not later than within 14
days
after
the decision to keep the request. The commissioner director
shall include in a notice under this subsection all of the
following:
(a) The principal reason or reasons for the decision,
including, as an attachment to the notice or in any other manner
the
commissioner director considers appropriate, the information
provided as determined by the reviewing entity under subsection
(14).(16).
(b) If appropriate, the principal reason or reasons why the
commissioner
director did not follow the assigned independent
review organization's recommendation.
(19) (17)
Upon receipt of a notice of a
decision under
subsection
(16) (18) reversing the adverse determination or final
adverse determination, the health carrier immediately shall approve
the coverage that was the subject of the adverse determination or
final adverse determination.
Sec.
13. (1) Except as provided in subsection (11), (12), a
covered person or the covered person's authorized representative
may make a request for an expedited external review with the
commissioner
director within 10 days after the covered person
receives
an adverse determination if both of the following are
met:apply:
(a) The adverse determination involves a medical condition of
the covered person for which the time frame for completion of an
expedited internal grievance would seriously jeopardize the life or
health of the covered person or would jeopardize the covered
person's ability to regain maximum function as substantiated by a
physician either orally or in writing.
(b) The covered person or the covered person's authorized
representative has filed a request for an expedited internal
grievance.
(2)
At the time When the commissioner director receives
a
request
for an expedited external review, the commissioner director
immediately shall notify and provide a copy of the request to the
health carrier that made the adverse determination or final adverse
determination.
If the commissioner director
determines the request
meets the reviewability requirements under section 11(2) or (3),
the
commissioner director shall assign an independent review
organization that has been approved under this act to conduct the
expedited external review and to provide a written recommendation
to
the commissioner director on whether to uphold or reverse the
adverse determination or final adverse determination.
(3) If a covered person has not completed the health carrier's
expedited internal grievance process, the independent review
organization shall determine immediately after receipt of the
assignment to conduct the expedited external review whether the
covered person will be required to complete the expedited internal
grievance
prior to before conducting the expedited external review.
If the independent review organization determines that the covered
person must first complete the expedited internal grievance
process, the independent review organization immediately shall
notify the covered person and, if applicable, the covered person's
authorized representative of this determination and that it will
not proceed with the expedited external review until the covered
person completes the expedited internal grievance.
(4)
In reaching a recommendation, the an assigned independent
review organization is not bound by any decisions or conclusions
reached during the health carrier's utilization review process or
the health carrier's internal grievance process.
(5)
Not later than 12 hours after the a health carrier
receives
the a notice under subsection (2), the health carrier or
its designee utilization review organization shall provide or
transmit all necessary documents and information considered in
making the adverse determination or final adverse determination to
the assigned independent review organization electronically or by
telephone, or
facsimile, or any other available expeditious method.
(6) In addition to the documents and information provided or
transmitted under subsection (5), the assigned independent review
organization, to the extent the information or documents are
available and the independent review organization considers them
appropriate, shall consider the following in reaching a
recommendation:
(a) The covered person's pertinent medical records.
(b) The attending health care professional's recommendation.
(c) Consulting reports from appropriate health care
professionals and other documents submitted by the health carrier,
covered person, the covered person's authorized representative, or
the covered person's treating provider.
(d) The terms of coverage under the covered person's health
benefit plan with the health carrier.
(e) The most appropriate practice guidelines, which may
include generally accepted practice guidelines, evidence-based
practice guidelines, or any other practice guidelines developed by
the federal government or national or professional medical
societies, boards, and associations.
(f) Any applicable clinical review criteria developed and used
by the health carrier or its designee utilization review
organization in making adverse determinations.
(7) If a request for an external review involves issues of
experimental or investigational service or treatment, in addition
to the documents and information provided under subsections (5) and
(6), the assigned independent review organization, in reaching a
recommendation, shall consider whether either of the following
applies:
(a) The recommended or requested health care service or
treatment has been approved by the United States Food and Drug
Administration, if applicable, for the condition.
(b) Medical or scientific evidence or evidence-based standards
demonstrate that the expected benefits of the recommended or
requested health care service or treatment is more likely than not
to be beneficial to the covered person than any available standard
health care service or treatment and the adverse risks of the
recommended or requested health care service or treatment would not
be substantially increased over those of available standard health
care services or treatments.
(8) (7)
The An assigned independent review organization shall
provide
its recommendation to the commissioner director as
expeditiously as the covered person's medical condition or
circumstances
require, but in no event not
more than 36 hours after
the
date the commissioner director
received the request for an
expedited external review.
(9) (8)
Upon receipt of the an assigned
independent review
organization's
recommendation, the commissioner director
immediately shall review the recommendation to ensure that it is
not contrary to the terms of coverage under the covered person's
health benefit plan with the health carrier.
(10) (9)
As expeditiously as the covered
person's medical
condition
or circumstances require, but in no event not more than
24 hours after receiving the recommendation of the assigned
independent
review organization, the commissioner director shall
complete the review of the independent review organization's
recommendation and notify the covered person, if applicable, the
covered person's authorized representative, and the health carrier
of the decision to uphold or reverse the adverse determination or
final
adverse determination. If this the
notice was under this
subsection is not in writing, within 2 days after the date of
providing
that the notice, the commissioner director shall
provide
written confirmation of the decision to the covered person, if
applicable, the covered person's authorized representative, and the
health carrier and include the information required in section
11(16).11(18).
(11) (10)
Upon receipt of a notice of a
decision under
subsection
(9) (10) reversing the adverse determination or final
adverse determination, the health carrier immediately shall approve
the coverage that was the subject of the adverse determination or
final adverse determination.
(12) (11)
An expedited external review shall
must not be
provided for retrospective adverse determinations or retrospective
final adverse determinations.
Sec.
17. (1) The commissioner director
shall approve
independent review organizations eligible to be assigned to conduct
external reviews under this act to ensure that an independent
review organization satisfies the minimum standards established
under section 19.
(2)
The commissioner director shall develop an application
form for initially approving and for reapproving independent review
organizations to conduct external reviews.
(3) Any independent review organization wishing to be approved
to conduct external reviews under this act shall submit the
application form developed under subsection (2) and include with
the form all documentation and information necessary for the
commissioner
director to determine if the independent review
organization satisfies the minimum qualifications established under
section
19. The commissioner director
may charge an application fee
that independent review organizations shall submit to the
commissioner
director with an application for approval and or
reapproval.
(4) An approval under this section is effective for 2 years,
unless
the commissioner director determines before expiration of
the approval that the independent review organization is not
satisfying the minimum standards established under section 19. If
the
commissioner director determines that an independent review
organization no longer satisfies the minimum standards established
under
section 19, the commissioner director
shall terminate the
approval of the independent review organization and remove the
independent review organization from the list of independent review
organizations approved to conduct external reviews under this act
that
is maintained by the commissioner director under subsection
(5).
(5)
The commissioner director shall maintain and periodically
update a list of approved independent review organizations.
Sec. 19. (1) To be approved under section 17 to conduct
external
reviews, an independent review organization shall must do
both
all of the following:
(a) Have and maintain written policies and procedures that
govern all aspects of both the standard external review process and
the expedited external review process under sections 11 and 13 that
include, at a minimum, a quality assurance mechanism in place that
does all of the following:
(i) Ensures that external reviews are conducted within the
specified time frames and required notices are provided in a timely
manner.
(ii) Ensures the selection of qualified and impartial clinical
peer reviewers to conduct external reviews on behalf of the
independent review organization and suitable matching of reviewers
to specific cases.
(iii) Ensures the confidentiality of medical and treatment
records and clinical review criteria.
(iv) Ensures that any person employed by or under contract
with the independent review organization adheres to the
requirements of this act.
(b)
Agree to maintain and provide to the commissioner director
the information required in section 23.
(c) Be accredited by a nationally recognized private
accrediting organization approved by the director.
(2) A clinical peer reviewer assigned by an independent review
organization
to conduct external reviews shall must be a physician
or other appropriate health care professional who meets all of the
following minimum qualifications:
(a) Is an expert in the treatment of the covered person's
medical condition that is the subject of the external review.
(b) Is knowledgeable about the recommended health care service
or treatment because he or she devoted in the immediately preceding
year a majority of his or her time in an active clinical practice
within the medical specialty most relevant to the subject of the
review.
(c) Holds a nonrestricted license in a state of the United
States and, for physicians, a current certification by a recognized
American medical specialty board in the area or areas appropriate
to the subject of the external review.
(d) Has 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 unit, or regulatory body that raise a substantial
question as to the clinical peer reviewer's physical, mental, or
professional competence or moral character.
(3) An independent review organization may not own or control,
be a subsidiary of or in any way be owned or controlled by, or
exercise control with a health benefit plan, a national, state, or
local trade association of health benefit plans, or a national,
state, or local trade association of health care providers.
(4) An independent review organization selected to conduct the
external review and any clinical peer reviewer assigned by the
independent
organization to conduct the external review shall must
not have a material professional, familial, or financial conflict
of interest with any of the following:
(a) The health carrier that is the subject of the external
review.
(b) The covered person whose treatment is the subject of the
external review or the covered person's authorized representative.
(c) Any officer, director, or management employee of the
health carrier that is the subject of the external review.
(d) The health care provider, 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.
(e) The facility at which the recommended health care service
or treatment would be provided.
(f) 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.
(5) 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 subsection (4), the commissioner director
shall
take into consideration situations where in which the
independent review organization to be assigned to conduct an
external review of a specified case or a clinical peer reviewer to
be assigned by the independent review organization to conduct an
external review of a specified case may have an apparent
professional, familial, or financial relationship or connection
with a person described in subsection (4), but that the
characteristics of that relationship or connection are such that
they are not a material professional, familial, or financial
conflict of interest that results in the disapproval of the
independent review organization or the clinical peer reviewer from
conducting the external review.
Sec. 23. (1) An independent review organization assigned to
conduct an external review under section 11 or 13 shall maintain
for 3 years written records in the aggregate and by health carrier
on all requests for external review for which it conducted an
external review during a calendar year. Each independent review
organization required to maintain written records on all requests
for external review for which it was assigned to conduct an
external
review shall submit to the commissioner, director, at
least annually, a report in the format specified by the
commissioner.director.
(2)
The report to the commissioner director
under subsection
(1)
shall must include in the aggregate and for each health carrier
all of the following:
(a) The total number of requests for external review.
(b) The number of requests for external review resolved and,
of those resolved, the number resolved upholding the adverse
determination or final adverse determination and the number
resolved reversing the adverse determination or final adverse
determination.
(c) The average length of time for resolution.
(d) A summary of the types of coverages or cases for which an
external review was sought, as provided in the format required by
the
commissioner.director.
(e)
The number of external reviews under section 11(12) 11(13)
that were terminated as the result of a reconsideration by the
health carrier of its adverse determination or final adverse
determination after the receipt of additional information from the
covered person or the covered person's authorized representative.
(f)
Any other information the commissioner director may
request or require.
(3)
Each A health carrier shall maintain for 3 years written
records in the aggregate and for each type of health benefit plan
offered by the health carrier on all requests for external review
that are filed with the health carrier or that the health carrier
receives
notice of from the commissioner director
under this act.
Each
A health carrier required to maintain written records
on all
requests
for external review shall submit to the commissioner,
director, at least annually, a report in the format specified by
the
commissioner.director.
(4)
The report to the commissioner director
under subsection
(3)
shall must include in the aggregate and by type of health
benefit plan all of the following:
(a) The total number of requests for external review.
(b) From the number of requests for external review that are
filed directly with the health carrier, the number of requests
accepted for a full external review.
(c) The number of requests for external review resolved and,
of those resolved, the number resolved upholding the adverse
determination or final adverse determination and the number
resolved reversing the adverse determination or final adverse
determination.
(d) The average length of time for resolution.
(e) A summary of the types of coverages or cases for which an
external review was sought, as provided in the format required by
the
commissioner.director.
(f)
The number of external reviews under section 11(12) 11(13)
that were terminated as the result of a reconsideration by the
health carrier of its adverse determination or final adverse
determination after the receipt of additional information from the
covered person or the covered person's authorized representative.
(g)
Any other information the commissioner director may
request or require.
Sec.
25. (1) Each A health carrier shall include a description
of the internal grievance and external review procedures in or
attached to the policy, certificate, membership booklet, outline of
coverage, or other evidence of coverage it provides to covered
persons.
(2)
The description under subsection (1) shall be in plain
English
and shall must include all of the following:
(a) A statement informing the covered person of his or her
right to file a request for an internal grievance and external
review of an adverse determination.
(b)
The commissioner's director's
toll-free telephone number
and address.
(c) A statement informing the covered person that, when filing
a request for an external review, the covered person will be
required to authorize the release of any medical records that may
be
required to be reviewed for the purpose of reaching to reach a
decision on the external review.
Sec.
27. The commissioner director
may promulgate rules
pursuant
to under the administrative procedures act of 1969, 1969
PA
306, MCL 24.201 to 24.328, necessary to carry out the provisions
of
this act.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless Senate Bill No. ____ or House Bill No. 4935 (request no.
00198'15 **) of the 98th Legislature is enacted into law.