SB 667 Text

Senate Bill No. 667
(By Senator Hunter)
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[Introduced March 26, 2001; referred to the Committee on Banking and Insurance.]

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A BILL to amend chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article forty-three, relating to creating the health carrier external review act; providing for covered persons to file requests for external review with the commissioner of insurance; selection of an independent review organization and clinical peer reviewers; notices; and opinions, decisions and actions required by the health carriers.

Be it enacted by the Legislature of West Virginia:

That chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article forty-three, to read as follows:
ARTICLE 43. HEALTH CARRIER EXTERNAL REVIEW ACT.
§33-43-1. Request for external review filed with commissioner.
(a) Within sixty days after the date of receipt of a notice of an adverse determination or final adverse determination that involves a denial of coverage based on a determination that the health care service or treatment recommended or requested is experimental or investigational, a covered person or the covered person's authorized representative may file a request for external review with the commissioner of insurance.

(b) A covered person or the covered person's authorized representative may make an oral request for an expedited external review of the adverse determination or final adverse determination pursuant to subsection (a) of this section if the covered person's treating physician certifies, in writing, that the recommended or requested health care service or treatment that is the subject of the request would be significantly less effective if not promptly initiated.
§33-43-2. Commissioner to assign independent review organization.

(a) Upon receipt of a request for an expedited external review that meets the reviewability requirements of this article, the commissioner immediately shall assign an independent review organization to conduct the review.

(b) Upon receipt of a request for external review pursuant to this article, the commissioner 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.
§33-43-3. Health carrier to provide documents and information.

For an expedited external review request made pursuant to this article, at the time the health carrier receives the notice, 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 manner.
§33-43-4. Preliminary review of request for external review.

(a) Except for a request for an expedited external review made pursuant to the provisions of section one of this article, within five days after the date of receipt of a request for external review, the commissioner shall complete a preliminary review of the request to determine whether:

(1) The individual is or was a covered person in the health benefit plan at the time the health care service or treatment was recommended or requested or, in the case of a retrospective review, was a covered person in the health benefit plan at the time the health care service or treatment was provided;

(2) The recommended or requested health care service or treatment that is the subject of the adverse determination or final adverse determination:

(A) Reasonably appears to be 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; and

(B) Is not explicitly listed as an excluded benefit under the covered person's health benefit plan with the health carrier.

(3) The covered person's treating physician has certified that one of the following situations is applicable:

(A) Standard health care services or treatments have not been effective in improving the condition of the covered person;

(B) Standard health care services or treatments are not medically appropriate for the covered person; or

(C) 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 subsection (b) of this section.

(b) The covered person's treating physician:

(1) Has 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 treatment; or

(2) Who 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, has 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.

(c) 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; and

(d) The covered person has provided all the information and forms required by the commissioner that are necessary to process an external review, including a release form.
§33-43-5. Commissioner's action after preliminary review.

(a) Upon completion of the preliminary review, the commissioner immediately shall notify the covered person and, if applicable, the covered person's authorized representative in writing whether:

(1) The request is complete; and

(2) The request has been accepted for external review.

(b) If the request is accepted for external review, the commissioner shall:

(1) Include in the notice provided a statement that the covered person or the covered person's authorized representative may submit to the commissioner in writing within seven days following the date of receipt of the notice additional information and supporting documentation that each clinical peer reviewer selected by the assigned independent review organization shall consider when conducting the external review; and

(2) Immediately notify the health carrier in writing of the acceptance of the request for external review.

(1) Is not complete, the commissioner 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; or

(2) Is not accepted for external review, the commissioner shall inform the covered person, the covered person's authorized representative, if applicable, and the health carrier in writing of the reasons for its nonacceptance.
§33-43-6. Assignment of independent review organization by commissioner.

(a) At the time a request is accepted for external review, the commissioner shall assign an independent review organization that has been approved pursuant to this article that:

(1) Will be responsible for selecting one or more clinical peer reviewers, as it determines is appropriate to conduct the external review; and

(2) Based on the opinion of the clinical peer reviewer, or opinions if more than one clinical peer reviewer has been selected to conduct the external review, shall make a decision to uphold or reverse the adverse determination or final adverse determination.

(b) Immediately upon assignment, the independent review organization shall select one or more clinical peer reviewers to conduct the external review.

(c) Each clinical peer reviewer shall provide a written opinion to the independent review organization on whether the recommended or requested health care service or treatment should be covered.
§33-43-7. Minimum qualifications of clinical peer reviews.

(a) In selecting clinical peer reviews, the assigned independent review organization shall select physicians or other health care professionals who meet the minimum qualifications described in this article and, through clinical experience in the past three years, are experts in the treatment of the covered person's condition and knowledgeable about the recommended or requested health care service or treatment.

(b) Neither the covered person, the covered person's authorized representative, if applicable, nor the health carrier may choose or control the choice of the physicians or other health care professionals to be selected to conduct the external review.

(c) In reaching an opinion, clinical peer reviews are not bound by any decisions or conclusions reached during the health carrier's utilization review process or the health carrier's internal grievance process.
§33-43-8. Assignment of independent review organization by commissioner.

(a) Within seven days after the date of receipt of the notice provided by the commissioner, the health carrier or its designee utilization review organization shall provide to the assigned independent review organization, the documents and any information considered in making the adverse determination or the final adverse determination.

(b) Except as provided in subsection (d) of this section, failure by the health carrier or its designee utilization review organization to provide the documents and information within the time specified in this section may not delay the conduct of the external review.

(c) 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 the time specified in subdivision (a) of this section, the commissioner may terminate the external review and make a decision to reverse the adverse determination or final adverse determination.

(d) Immediately upon making the decision under subdivision (c) of this section the commissioner shall notify the assigned independent review organization, the covered person, the covered person's authorized representative, if applicable, and the health carrier.

§33-43-9. Review of information and documents by independent review organization.

(a) Each clinical peer reviewer shall review all of the information and documents received pursuant to the provisions of section eight of this article and any other information submitted in writing by the covered person or the covered person's authorized representative that has been forwarded to the independent review organization by the commissioner.

(b) Upon receipt of any information submitted by the covered person or the covered person's authorized representative, at the same time the commissioner forwards the information to the independent review organization, the commissioner shall forward the information to the health carrier.

§33-43-10. Health carrier's actions after request for external review is made; reconsideration of adverse determination.

(a) Upon receipt of the information required to be forwarded by this article, the health carrier may reconsider its adverse determination or final adverse determination that is the subject of the external review.

(b) Reconsideration by the health carrier of its adverse determination or final adverse determination will not delay or terminate the external review.

(c) The external review may be terminated only 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 recommended or requested health care service or treatment that is the subject of the adverse determination or final adverse determination.
§33-43-11. Reversal of adverse decision by health carrier; notice required and procedure followed.

(a) Immediately upon making the decision to reverse its adverse determination or final adverse determination, the health carrier shall notify the covered person, the covered person's authorized representative if applicable, the assigned independent review organization, and the commissioner in writing of its decision.

(b) The assigned independent review organization shall terminate the external review upon receipt of the notice from the health carrier sent pursuant to the provisions of this section.

§33-43-12. Clinical peer reviewer's opinion; when to be made and contents.

(a) Except as provided in subsection (c) of this section, within twenty days after being selected to conduct the external review, each clinical peer reviewer shall provide an opinion to the assigned independent review organization on whether the recommended or requested health care service or treatment should be covered.

(b) Except for an opinion provided pursuant to subsection (c) of this section, each clinical peer reviewer's opinion shall be in writing and include the following information:

(1) A description of the covered person's medical condition;

(2) A description of the indicators relevant to determining whether there is sufficient evidence to demonstrate that the recommended or requested health care service or treatment is more likely than not to be beneficial to the covered person that any available standard health care services or treatments 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;

(3) A description and analysis of any medical or scientific evidence considered in reaching the opinion; and

(4) Information on the basis for the rationale of the reviewer's opinion.

(c) For an expedited external review, each clinical peer reviewer shall provide an opinion orally or in writing to the assigned independent review organization within five days after being selected.

(d) If the opinion provided in accordance with subsection (a) of this section was not in writing, within two days following the date the opinion was provided, the clinical peer reviewer shall provide written confirmation of the opinion to the assigned independent review organization and include the information required under the provisions of subsection (b) of this section.
§33-43-13. Documents to be considered by clinical peer reviewer.

In addition to the documents and information provided pursuant to section one of this article, each clinical peer reviewer, to the extent the information or documents are available and the reviewer considers appropriate, shall consider the following in reaching an opinion:

(1) The covered person's pertinent medical records;

(2) The attending physician or health care professional's recommendation;

(3) 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 physician or health care professional;

(4) The terms of coverage under the covered person's health benefit plan with the health carrier to ensure that, but for the health carrier's determination that the recommended or requested health care service or treatment that is the subject of the opinion is experimental or investigational, the reviewer's opinion is not contrary to the terms of coverage under the covered person's health benefit plan with the health carrier; and

(5) Whether:

(A) The recommended or requested health care service or treatment has been approved by the federal food and drug administration for the condition; or

(B) Medical or scientific evidence demonstrates 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.

§33-43-14. Independent review organization's decision; written notice to covered person, health carrier and commissioner.

(a) Except as provided in subsection (b) of this section, within twenty days after the date it receives the opinion of each clinical peer reviewer, the assigned independent review organization shall make a decision and provide written notice of the decision to:

(1) The covered person;

(2) If applicable, the covered person's authorized representative;

(3) The health carrier; and

(4) The commissioner.

(b) For an expedited external review, within two days after the date it receives the opinion of each clinical peer reviewer, the assigned independent review organization shall make a decision and provide notice of the decision orally or in writing to the persons listed in subsection (a) of this section.

(c) If the notice provided under subsection (b) of this section was not in writing, within two days after the date of providing that notice, the assigned independent review organization shall provide written confirmation of the decision to the persons listed in subsection (a) and include the information set forth in subsection (b).

§33-43-15. Clinical peer reviewer's recommendations; independent review organization decision; selection of additional reviewer if others are evenly split.

(a) If a majority of the clinical peer reviewers recommend that the recommended or requested health care service or treatment should be covered, the independent review organization shall make a decision to reverse the health carrier's adverse determination or final adverse determination.

(b) If a majority of the clinical peer reviewers recommend that the recommended or requested health care service or treatment should not be covered, the independent review organization shall make a decision to uphold the health carrier's adverse determination or final adverse determination.

(c) If the clinical peer reviewers are evenly split as to whether the recommended or requested health care service or treatment should be covered, the independent review organization shall obtain the opinion of an additional clinical peer reviewer in order for the independent review organization to make a decision based on the opinions of a majority of the clinical peer reviewers.

(d) The additional clinical peer reviewer selected under the provisions of subsection (c) of this section must use the same information to reach an opinion as the clinical peer reviewers who have already submitted their opinions.

(e) The selection of the additional clinical peer reviewer may not extend the time within which the assigned independent review organization is required to make a decision based on the opinions of the clinical peer reviewers.

§33-43-16. Independent review organization's notice; immediate approval of coverage by the health carrier.

(a) The independent review organization shall include in the notice provided pursuant to the provisions of section fourteen of this article:

(1) A general description of the reason for the request for external review;

(2) The written opinion of each clinical peer reviewer, including the recommendation of each clinical peer reviewer as to whether the recommended or requested health care service or treatment should be covered and the rationale for the reviewer's recommendation;

(3) The date the independent review organization received the assignment from the commissioner to conduct the external review;

(4) The date the external review was conducted;

(5) The date of its decision;

(6) The principal reason or reasons for its decision; and

(7) The rationale for its decision.

(b) Upon receipt of a notice of a decision reversing the adverse determination or final adverse determination, the health carrier immediately shall approve coverage of the recommended or requested health care service or treatment that was the subject of the adverse determination or final adverse determination.

NOTE: The purpose of this bill is to create the health carrier external review act. It requires covered persons to file requests for external review with the commissioner of insurance and sets up the procedure to be followed for the external reviews, including the selection of an independent review organization and clinical peer reviewers.

This article is new; therefore, strike-throughs and underscoring have been omitted.

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