
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.
(c) If the request:
(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.