OAR 836-052-0768: Appealing An Insurer’s Determination That The Benefit Trigger Is Not Met

(1) For purposes of this rule, “authorized representative” means a person who is authorized to act as the covered person’s personal representative within the meaning of 45 CFR 164.502(g) promulgated by the Secretary of the Department of Health and Human Services under the administrative simplification provisions of the Health Insurance Portability and Accountability Act. “Authorized representative” includes the following: (a) A person to whom a covered person has given express written consent to represent the covered person in an external review; (b) A person authorized by law to provide substituted consent for a covered person; or (c) A family member of the covered person or the covered person’s treating health care professional only when the covered person is unable to provide consent. (2) If an insurer determines that the benefit trigger of a long term care insurance policy has not been met, the insurer shall provide a clear, written notice to the insured and the insured’s authorized representative, if applicable, of all of the following: (a) The reason that the insurer determined that the insured’s benefit trigger has not been met; (b) The insured’s right to internal appeal in accordance with section (3) of this rule, and the right to submit new or additional information relating to the benefit trigger denial with the appeal request; and (c) The insured’s right, after exhaustion of the insurer’s internal appeal process, to have the benefit trigger determination reviewed under the independent review process in accordance with section (4) of this rule. (3) The insured or the insured’s authorized representative may appeal the insurer’s adverse benefit trigger determination by sending a written request to the insurer, along with any additional supporting information, within 120 calendar days after the insured and the insured’s authorized representative, if applicable, receives the insurer’s benefit determination notice. The internal appeal shall be considered by an individual or group of individuals designated by the insurer, but the individual or individuals making the internal appeal decision may not be the same individual or group of individuals who made the initial benefit determination. The internal appeal shall be completed and written notice of the internal appeal decision shall be sent to the insured and the insured’s authorized representative, if applicable, within 30 calendar days after the insurer receives all necessary information upon which a final determination can be made. (a) If the insurer’s original determination is upheld upon internal appeal, the notice of the internal appeal decision shall describe any additional internal appeal rights offered by the insurer. Nothing in this rule shall require the insurer to offer any internal appeal rights other than those described in this subsection. (b) If the insurer’s original determination is upheld after the internal appeal process has been exhausted, and new or additional information has not been provided to the insurer, the insurer shall provide a written description of the insured’s right to request an independent review of the benefit determination as described in section (4) of this rule to the insured and the insured’s authorized representative, if applicable. (c) As part of the written description of the insured’s right to request an independent review, an insurer shall include the following, or substantially equivalent, language: “We have determined that the benefit eligibility criteria (“benefit trigger”) of your [policy] [certificate] has not been met. You may have the right to an independent review of our decision conducted by long term care professionals who are not associated with us. Please send a written request for independent review to us at [address]. You must inform us, in writing, of your election to have this decision reviewed within 120 days after you receive this letter. Listed below are the names and contact information of the independent review organizations approved or certified by the Department of Consumer and Business Services to conduct long term care insurance benefit eligibility reviews. If you wish to request an independent review, please choose one of the listed organizations and include its name with your request for independent review. If you elect independent review, but do not choose an independent review organization with your request, we will choose one of the independent review organizations for you and refer the request for independent review to it.” (d) If the insurer does not believe the benefit trigger decision is eligible for independent review, the insurer shall inform the insured and the insured’s authorized representative, if applicable, and the director of the Department of Consumer and Business Services in writing and include in the notice the reasons for its determination of independent review ineligibility. (e) The appeal process described in section (3) of this rule is not deemed to be a ‘new service or provider’ as referenced in OAR 836-052-0738, and therefore does not trigger the notice requirements of that rule. (4)(a) The insured or the insured’s authorized representative may request an independent review of the insurer’s benefit trigger determination after the internal appeal process outlined in section (3) of this rule is exhausted. A written request for independent review may be made by the insured or the insured’s authorized representative to the insurer within 120 calendar days after the insurer’s written notice of the final internal appeal decision is received by the insured and the insured’s authorized representative, if applicable. (b) The cost of the independent review shall be borne by the insurer. (c) An independent review process shall comply with all of these procedures: (A) Within five business days after receiving a written request for independent review, the insurer shall refer the request to the independent review organization that the insured or the insured’s authorized representative has chosen from the list of certified or approved organizations the insurer has provided to the insured. If the insured or the insured’s authorized representative does not choose an approved independent review organization to perform the review, the insurer shall choose an independent review organization approved or certified by the state. The insurer shall vary its selection of authorized independent review organizations on a rotating basis. (B) The insurer shall refer the request for independent review of a benefit trigger determination to an independent review organization, subject to the following: (i) The independent review organization shall be on a list of certified or approved independent review organizations that satisfy the requirements of a qualified long term care insurance independent review organization contained in this section; (ii) The independent review organization may not have any conflicts of interest with the insured, the insured’s authorized representative, if applicable, or the insurer; and (iii) The independent review shall be limited to the information or documentation provided to and considered by the insurer in making its determination, including any information or documentation considered as part of the internal appeal process. (C) If the insured or the insured’s authorized representative has new or additional information not previously provided to the insurer, whether submitted to the insurer or the independent review organization, the information shall first be considered in the internal review process, as set forth in section (3) of this rule. (i) While the insurer is reviewing the new or additional information, the independent review organization shall suspend its review and the time period for review is suspended until the insurer completes its review. (ii) The insurer must complete its review of the information and provide written notice of the results of the review to the insured and the insured’s authorized representative, if applicable, and the independent review organization within five business days of the insurer’s receipt of such new or additional information. (iii) If the insurer maintains its denial after the review of the new or additional information not previously provided to the insurer, the independent review organization shall continue its review, and render its decision within the time period specified in paragraph (I) of this subsection. If the insurer overturns its decision following its review, the independent review request shall be considered withdrawn. (D) The insurer shall acknowledge in writing to the insured and the insured’s authorized representative, if applicable, and the director that the request for independent review has been received, accepted and forwarded to an independent review organization for review. The notice must include the name and address of the independent review organization. (E) Within five business days after receipt of the request for independent review, the independent review organization assigned under this subsection shall notify the insured and the insured’s authorized representative, if applicable, the insurer and the director that it has accepted the independent review request and identify the type of licensed health care professional assigned to the review. The assigned independent review organization shall include in the notice a statement that the insured or the insured’s authorized representative may submit in writing to the independent review organization within seven days following the date of receipt of the notice additional information and supporting documentation that the independent review organization should consider when conducting its review. (F) The independent review organization shall review all of the information and documents received pursuant to paragraph (E) of this subsection that has been provided to the independent review organization. The independent review organization shall provide copies of any documentation or information provided by the insured or the insured’s authorized representative to the insurer for its review, if it is not part of the information or documentation submitted by the insurer to the independent review organization. The insurer shall review the information and provide its analysis of the new information in accordance with subparagraph (H) of this paragraph. (G) The insured or the insured’s authorized representative may submit, at any time, new or additional information not previously provided to the insurer but pertinent to the benefit trigger denial. The insurer shall consider such information and affirm or overturn its benefit trigger determination. If the insurer affirms its benefit trigger determination, the insurer shall promptly provide such new or additional information to the independent review organization for its review, along with the insurer’s analysis of such information. (H) If the insurer overturns its benefit trigger determination: (i) The insurer shall provide notice to the independent review organization and the insured and the insured’s authorized representative, if applicable, and the director of its decision; and (ii) The independent review process shall immediately cease. (I) The independent review organization shall provide the insured and the insured’s authorized representative, if applicable, the insurer and the director a written notice of its decision, within 30 calendar days after the independent review organization receives the referral referenced in subsection (c)(B)of this section. If the independent review organization overturns the insurer’s decision, it shall: (i) Establish the precise date within the specific period of time under review that the benefit trigger was deemed to have been met; (ii) Specify the specific period of time under review for which the insurer declined eligibility, but during which the independent review organization deemed the benefit trigger to have been met; and (iii) For tax-qualified long term care insurance contracts, provide a certification (made only by a licensed health care practitioner as defined in section 7702B(c)(4) of the Internal Revenue Code) that the insured is a chronically ill individual. (J) The decision of the independent review organization with respect to whether the insured met the benefit trigger will be final and binding on the insurer. (K) The independent review organization’s determination shall be used solely to establish liability for benefit trigger decisions, and is intended to be admissible in any proceeding only to the extent it establishes the eligibility of benefits payable. (L) Nothing in this section shall restrict the insured’s right to submit a new request for benefit trigger determination after the independent review decision, should the independent review organization uphold the insurer’s decision. (M) The independent review organization must satisfy the criteria set forth in Exhibit 1, Guidelines for Long term Care Independent Review Entities, in order to be certified or approved by the department to review long term care insurance benefit trigger decisions. (N) The director shall maintain and periodically update a list of approved independent review organizations. (5) Certification of Long term Care Insurance Independent Review Organizations. The director may certify or approve a qualified long term care insurance independent review organization, if the independent review organization demonstrates to the satisfaction of the director that it is unbiased and meets the following qualifications: (a) Have on staff, or contract with, a qualified and licensed health care professional in an appropriate field for determining an insured’s functional or cognitive impairment (e.g. physical therapy, occupational therapy, neurology, physical medicine and rehabilitation) to conduct the review. (b) Neither the organization nor any of its licensed health care professionals may, in any manner, be related to or affiliated with an entity that previously provided medical care to the insured. (c) Utilize a licensed health care professional who is not an employee of the insurer or related in any manner to the insured. (d) Neither it nor its licensed health care professional who conducts the reviews may receive compensation of any type that is dependent on the outcome of the review. (e) Be state approved or certified to conduct such reviews if the state requires such approvals or certifications. (f) Provide a description of the fees to be charged by it for independent reviews of a long term care insurance benefit trigger decision. Such fees shall be reasonable and customary for the type of long term care insurance benefit trigger decision under review. (g) Provide the name of the medical director or health care professional responsible for the supervision and oversight of the independent review procedure. (h) Have on staff or contract with a licensed health care practitioner, as defined by section 7702B(c)(4) of the Internal Revenue Code of 1986, as amended, who is qualified to certify that an individual is chronically ill for purposes of a qualified long term care insurance contract. (6) Each certified independent review organization shall comply with the following: (a) Maintain written documentation establishing the date it receives a request for independent review, the date each review is conducted, the resolution, the date such resolution was communicated to the insurer and the insured, the name and professional status of the reviewer conducting such review in an easily accessible and retrievable format for the year in which it received the information, plus two calendar years. (b) Be able to document measures taken to appropriately safeguard the confidentiality of such records and prevent unauthorized use and disclosures in accordance with applicable federal and state law. (c) Report annually to the director, by June 1, in the aggregate and for each long term care insurer all of the following: (A) The total number of requests received for independent review of long term care benefit trigger decisions; (B) The total number of reviews conducted and the resolution of such reviews (i.e., the number of reviews which upheld or overturned the long term care insurer’s determination that the benefit trigger was not met); (C) The number of reviews withdrawn prior to review; (D) The percentage of reviews conducted within the prescribed timeframe set forth in subsection (4)(c)(I) of this rule; and (E) Such other information the director may require. (d) Report immediately to the director any change in its status which would cause it to cease meeting any of the qualifications required of an independent review organization performing independent reviews of long term care benefit trigger decisions. (7) Nothing contained in this rule shall limit the ability of an insurer to assert any rights an insurer may have under the policy related to: (a) An insured’s misrepresentation; (b) Changes in the insured’s benefit eligibility; and (c) Terms, conditions, and exclusions of the policy, other than failure to meet the benefit trigger. (8) The requirements of this rule apply to a benefit trigger request made on or after July 1, 2012 under a long term care insurance policy issued or renewed after July 1, 2012. (9) The provisions of this rule supersede any other external review requirements found in ORS 743.857, 743.858, 743.859, 743.861, 743.862, 743.863 and 743.864.