W. Va. Code R. § 114-96-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-96-5 - First Level Reviews of Grievances Involving an Adverse Determination

5.1. Within 180 days after receipt of a notice of an adverse determination sent pursuant to W.Va. Code of St. R. § 114-96-1et seq., a covered person may file a grievance with the issuer requesting a first level review of the adverse determination.

5.2. First Level Review.

5.2.a. The issuer shall provide the covered person with the name, address and telephone number of a person or organizational unit designated to coordinate the first level review on behalf of the issuer.

5.2.b. In providing for a first level review under this section, the issuer shall ensure that the review is conducted in a manner under this section to ensure the independence and impartiality of the individuals involved in making the first level review decision.

5.2.c. In ensuring the independence and impartially of individuals involved in making the first level review decision, the issuer shall not make decisions related to such individuals regarding hiring, compensation, termination, promotion or other similar matters based upon the likelihood that the individual will support the denial of benefits.

5.3. Clinical Peers; Reviewers.

5.3.a. In the case of a review of an adverse determination involving utilization review, the issuer shall designate a review panel of health care professionals, none of whom shall have been involved in the initial adverse determination.

5.3.b. If a panel designated pursuant to subdivision 5.3.a does not include a clinical peer, then the issuer shall ensure a clinical peer is available for consultation to the panel and the panel shall consult with such clinical peer.

5.3.c. In conducting a review under this section, the reviewer or reviewers shall take into consideration all comments, documents, records and other information regarding the request for services submitted by the covered person, without regard to whether the information was submitted or considered in making the initial adverse determination.

5.4. A covered person does not have the right to attend, or have a representative in attendance, at the first level review, but the covered person is entitled to:

5.4.a. Submit written comments, documents, records and other material relating to the request for benefits for the reviewer or reviewers to consider when conducting the review; and

5.4.b. Receive from the issuer, upon request and free of charge, reasonable access to, and copies of all documents, records and other information relevant to the covered person's request for benefits. For purposes of this subsection, a document, record or other information shall be considered "relevant" to a covered person's request for benefits if the document, record or other information:

5.4.b.1. Was relied upon in making the benefit determination;

5.4.b.2 Was submitted, considered or generated in the course of making the adverse determination, without regard to whether the document, record or other information was relied upon in making the benefit determination;

5.4.b.3 Demonstrates that, in making the benefit determination, the issuer or its designated representatives consistently applied required administrative procedures and safeguards with respect to the covered person as other similarly situated covered persons; or

5.4.b.4 Constitutes a statement of policy or guidance with respect to the health benefit plan concerning the denied health care service or treatment for the covered person's diagnosis, without regard to whether the advice or statement was relied upon in making the benefit determination.

5.5. For purposes of calculating the time periods within which a determination is required to be made and notice provided under subsection 5.6, the time period shall begin on the date the grievance requesting the review is filed with the issuer in accordance with the issuer's procedures established pursuant to section 4 for filing a request without regard to whether all of the information necessary to make the determination accompanies the filing.

5.6. Notifications.

5.6.a. An issuer shall notify and issue a decision in writing or electronically to the covered person within the time frames provided in subdivisions 5.6.b and 5.6.c.

5.6.b. With respect to a grievance requesting a first level review of an adverse determination involving a prospective review request, the issuer shall notify and issue a decision within a reasonable period of time that is appropriate given the covered person's medical condition, but no later than thirty days after the date of the issuer's receipt of the grievance requesting the first level review pursuant to subsection 5.1.

5.6.c. With respect to a grievance requesting a first level review of an adverse determination involving a retrospective review request, the issuer shall notify and issue a decision within a reasonable period of time, but no later than sixty days after the date of the issuer's receipt of the grievance requesting the first level review made pursuant to subsection 5.1.

5.6.d. The issuer shall make the provisions of subsection 5.4 known to the covered person within three working days after the date of receipt of the grievance.

5.7. Prior to issuing a decision in accordance with the time-frames provided in subsection 5.6, the issuer shall provide free of charge to the covered person any new or additional evidence, relied upon or generated by the issuer, or at the direction of the issuer, in connection with the grievance sufficiently in advance of the date the decision is required to be provided to permit the covered person a reasonable opportunity to respond prior to that date. Before the issuer issues or provides notice of a final adverse determination in accordance with the time-frames provided in subsection 5.6 that is based on new or additional rationale, the issuer shall provide the new or additional rationale to the covered person free of charge as soon as possible and sufficiently in advance of the date the notice of final adverse determination is to be provided to permit the covered person a reasonable opportunity to respond prior to that date.

5.8. The decision issued pursuant to subsection 5.6 shall set forth in a manner calculated to be understood by the covered person:

5.8.a. The titles and qualifying credentials of the person or persons participating in the first level review process (the reviewers);

5.8.b. Information sufficient to identify the claim involved with respect to the grievance, including the date of service, the health care provider and, if applicable, the claim amount;

5.8.c. A statement describing the availability, upon request, of the diagnosis code and its corresponding meaning, and the treatment code and its corresponding meaning. For purposes of this subdivision, an issuer:

5.8.c.1. Shall provide to the covered person as soon as practicable, upon request, the diagnosis code and its corresponding meaning, and the treatment code and its corresponding meaning, associated with any adverse determination; and

5.8.c.2. Shall not consider a request for the diagnosis code and treatment information, in itself, to be a request for external review pursuant to W.Va. Code of St. R. § 114-97-1et seq.;

5.8.d. A statement of the reviewers' understanding of the covered person's grievance;

5.8.e. The reviewers' decision in clear terms and the contract basis or medical rationale in sufficient detail for the covered person to respond further to the issuer's position;

5.8.f. A reference to the evidence or documentation used as the basis for the decision;

5.8.g. For a first level review decision issued pursuant to subsection 5.6 that denies the grievance:

5.8.g.1. The specific reason or reasons for the final adverse determination, including denial code and its corresponding meaning, as well as a description of the issuer's standard, if any, that was used in reaching the denial;

5.8.g.2. The reference to the specific plan provision on which the determination is based;

5.8.g.3. A statement that the covered person is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant, as the term "relevant" is defined in subdivision 5.4.b, to the covered person's benefit request;

5.8.g.4. If the issuer relied upon an internal rule, guideline, protocol or other similar criterion to make the final adverse determination, either the specific rule, guideline, protocol or other similar criterion or a statement that a specific rule, guideline, protocol or other similar criterion was relied upon to make the final adverse determination and that a copy of the same will be provided free of charge to the covered person upon request;

5.8.g.5. If the final adverse determination is based on a medical necessity or experimental or investigational treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgement for making the determination, applying the terms of the health benefit plan to the covered person's medical circumstances, or a statement that an explanation will be provided to the covered person free of charge upon request; and

5.8.g.6. If applicable, instructions for requesting:

5.8.g.6.A. A copy of the rule, guideline, protocol or other similar criterion relied upon in making the final adverse determination as provided in paragraph 5.8.g.4; and

5.8.g.6.B. The written statement of the scientific or clinical rationale for the determination, as provided in paragraph 5.8.g.5;

5.8.h. If applicable, a statement indicating:

5.8.h.1. A description of the procedures for obtaining an independent external review of the final adverse determination pursuant to W.Va. Code of St. R. § 114-97-1et seq.; and

5.8.h.2. The covered person's right to bring a civil action in a court of competent jurisdiction;

5.8.i. If applicable, the following statement: "You and your plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact your state Insurance Commissioner."; and

5.8.j. Notice of the covered person's right to contact the Commissioner's office for assistance with respect to any claim, grievance or appeal at any time, including the telephone number and address of the Commissioner's office.

5.9. An issuer shall provide the notice required under subsection 5.8 in a culturally and linguistically appropriate manner in accordance with federal regulations.

5.9.a. To be considered to meet the requirements of this subsection, the issuer shall:

5.9.a.1. Provide oral language services, such as a telephone assistance hotline, that include answering questions in any applicable non-English language and providing assistance with filing benefit requests and claims and appeals in any applicable non-English language;

5.9.a.2. Provide, upon request, a notice in any applicable non-English language; and

5.9.a.3. Include in the English version of all notices a statement prominently displayed in any applicable non-English language clearing indicating how to access the language services provided by the carrier.

5.9.b. For purposes of this subsection, with respect to any United States county to which a notice is sent, a non-English language is an applicable non-English language if ten percent or more of the population residing in the county is literate only in the same non-English language, as determined in published federal guidance.

W. Va. Code R. § 114-96-5