OAR 836-053-1200: Prior Authorization Requirements for Health Benefit Plans

(1) The provisions of this rule implement the requirements of ORS 743B.420, ORS 743B.422 and ORS 743B.423, as well amendments to ORS 743B.420 and ORS 743B.423 by Oregon Laws 2021, chapter 154 relating to prior authorization determinations. "Prior authorization" means a form of utilization review that requires a provider or an enrollee to request a determination by an insurer, prior to provision of health care that is subject to utilization review, that the insurer will provide reimbursement for the health care requested. "Prior authorization" does not include referral approval for evaluation and management services between providers. For the purposes of this rule, “health care” includes all items and services covered by a health benefit plan, including but not limited to medical, behavioral health, dental and vision care items and services. (2) This rule applies to prior authorization determinations that: (a) Are issued orally or in writing by an insurer to a provider or enrollee regarding the benefit coverage or medical necessity of a health care item or service to be provided to an enrollee; and (b) Are required under and obtained in accordance with the terms of a health benefit plan. (3) A prior authorization may be limited to the services of a specific provider or to services of a designated group of providers who contract with or are employed by the insurer. (4) Nothing in this rule shall require a health benefit plan to contain a prior authorization requirement. (5) Except in the case of misrepresentation relevant to a request for prior authorization, a prior authorization determination shall be binding on the insurer for the period of time specified in section 6 of this rule. (6) A prior authorization determination shall be binding on the insurer for: (a) The lesser of the following periods: (A) Five business days following the date of issuance of the authorization; or (B) The period during which the enrollee's coverage remains in effect, provided that when the insurer issues the prior authorization, the insurer has specific knowledge that the enrollee's coverage will terminate sooner than five business days following the day the authorization is issued and the insurer specifies the termination date in the authorization; and (b) For an item or service other than a prescription drug, the period during which the enrollee's coverage remains in effect beyond the time period established pursuant to subsection a of this section, up to a maximum of 60 calendar days or the reasonable duration of the treatment based on clinical standards, whichever is longer. (c) For a prescription drug, the period during which the enrollee's coverage remains in effect beyond the time period established pursuant to subsection a of this section, up to a maximum of one calendar year from the date that the treatment begins following approval of the request if the drug: (A) Is prescribed as a maintenance therapy that is expected to last at least 12 months based on medical or scientific evidence; (B) Continues to be prescribed throughout the 12-month period; and (C) Is prescribed for a condition that is within the scope of use for the drug as approved by the United States Food and Drug Administration; or has been proven to be a safe and effective form of treatment for the enrollee’s medical condition based on clinical practice guidelines developed from peer-reviewed medical literature. (d) Paragraph c of this subsection does not apply if: (A) A therapeutic equivalent of the prescription drug or a generic alternative to the prescription drug is or becomes available as a substitute for the drug for which prior authorization is requested or was approved; or (B) A biologic product is or becomes available that is determined by the United States Food and Drug Administration to be interchangeable with the drug for which prior authorization is requested or approved. (7) For purposes of counting days under section 6 of this rule, day one is the first business or calendar day, as applicable, following the day on which the insurer issues a prior authorization determination. (8) An insurer may not impose a restriction or condition on its prior authorization determinations that limits, restricts or effectively eliminates the binding force established for such determinations in ORS 743B.420 and this rule. (9) A prior authorization determination is issued when an insurer communicates orally, or in writing, a notice that meets the requirements of section 11 of this rule to the provider or enrollee who submitted the prior authorization request. (10) Except as provided in section 13, a determination by an insurer on a provider’s or an enrollee’s request for prior authorization must be issued within a reasonable period of time appropriate to the medical circumstances but no later than two business days after receipt of the request. If the determination is issued orally, the insurer must mail, or send electronically, a written notice of the determination to the provider or enrollee who submitted the prior authorization request no later than two business days after the determination is issued. For the purposes of counting days under this subsection, day one is the first business day following the day on which the insurer receives the request for prior authorization or issues the determination, as applicable. (11) When an insurer issues a determination in response to a request from a provider or an enrollee for prior authorization of nonemergency health care items or services, the determination must be one of the following: (a) The requested item or service is authorized; (b) The requested item or service is not authorized; or (c) The entire requested item or service is not authorized, but a specified portion of the requested item or service or a specified alternative item or service is authorized. (12) If an insurer makes a determination meeting the conditions specified in subsections b or c of section 11, the notice of that determination must be mailed, or sent electronically, to the enrollee who is the subject of the prior authorization request, regardless of whether the enrollee submitted the prior authorization request to the insurer. The notice must specify that the determination constitutes an adverse benefit determination, and that the enrollee has the right to appeal the determination, and to external review of the determination if applicable. (13) If additional information from an enrollee or a provider requesting prior authorization is necessary to make a determination on a request for prior authorization, no later than two business days after receipt of the request, the enrollee and the requesting provider, if any, shall be notified in writing of the specific additional information needed to make the determination. The required notice is provided when it is mailed, or delivered electronically, by the insurer. For the purposes of counting days under this subsection, day one is the first business day following the day on which the insurer receives the request for prior authorization. Nothing in this subsection shall be construed to prohibit an insurer from seeking additional information related to a prior authorization request orally or by other means, provided that a written notice is supplied in the event that a determination cannot be made within two business days due to the need for additional information. (14) Following a request for additional information submitted in compliance with section 13, the insurer must issue a determination by the later of: (a) Two business days after receipt of a response to the request for additional information. For the purposes of counting days under this subsection, day one is the first business day following the day on which the insurer receives a response; or, (b) Fifteen days after the date of the request for additional information, unless otherwise provided in federal law. For the purposes of counting days under this subsection, day one is the first calendar day following the day on which the insurer mails, or sends electronically, the request for additional information. (15) When an insurer requests additional information that is necessary to make a determination on a request for prior authorization, the insurer must specify all of the information reasonably necessary to make a determination. The insurer may not request information that is substantially identical to information previously supplied by the enrollee or provider. (16) Compliance with this rule by an insurer offering a health benefit plan will be sufficient to demonstrate compliance with the requirement for insurers to act promptly in making determinations in response to requests for prior authorization established by ORS 746.233 (2)(e). Nothing in this rule shall be construed to limit the department’s authority under this section to require a health insurer to act equitably and in good faith with respect to approving requests for prior authorization.