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FAQs for Issuers

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STATE DETERMINATIONS AND HEALTH PLAN AND ISSUER ELECTIONS

1.     How can I find out which States participate in the HHS-Administered Federal External Review Process? 

 

A Fact Sheet entitled “External Appeals:  Determinations of External Appeals Review Processes,” updated on January 13, 2012, includes a list of States that are subject to the federal external review process. Please visit:  http://cciio.cms.gov/resources/files/external_appeals.html. Those States and Territories participating in the HHS-Administered Federal External Review Process include:

 

            States:

·         Alabama

·         Alaska

·         Florida

·         Georgia

·         Louisiana

·         Mississippi (until January 1, 2013)

·         Montana

·         Nebraska

·         Pennsylvania

·         West Virginia

·         Wisconsin

 

            Territories:

·         American Samoa

·         Guam

·         Northern Mariana Islands

·         Puerto Rico

·         Virgin Islands

            

Please note that the above list of States and Territories may be periodically updated, depending on whether a redetermination of a particular State’s external review process occurs.

 

2.     What type of health plans can participate in the HHS-Administered Federal External Review Process?

 

The HHS-Administered Federal External Review Process is available to consumers in the individual market or fully-insured small group or large group health insurance markets in a State (or Territory) that does not have an applicable State process that meets Federal standards for external review.  

 

Health plans in the States noted above in Question 1 (which have not met minimum consumer protections in their external review process) may choose either: 







·         to enroll in the HHS-Administered Federal External Review Process, or

·         to privately contract with accredited Independent Review Organizations (IROs) to review external appeals for their members.

 

All self-insured, non-Federal governmental plans, regardless of state, may elect to use the HHS-Administered Federal External Review Process.

 

Self-insured plans subject to ERISA and/or the Internal Revenue Code must use private contracts with accredited IROs to conduct external reviews on their behalf.

 

Self-insured church plans fall under the authority of the Department of Treasury.  The Department of the Treasury joined the Department of Labor in issuing the technical guidance instructing self-insured plans subject to ERISA and/or the Internal Revenue Code to use an accredited Independent Review Organization (IRO) process.  Thus, self-insured church plans must use private contracts with accredited IROs to conduct external reviews on their behalf.

 

3.     How will consumers know what health plans are required to follow which rules in a particular State?

 

Consumers may refer to the above-mentioned Fact Sheet to identify whether issuers in their state are required to follow the process determined by the State or participate in a Federally-administered external review process.  If an issuer is participating in a Federally-administered external review process, the consumer may ask their issuer if they are participating in either the HHS-Administered Federal External Review Process or they have privately contracted with Independent Review Organizations (IROs) to provide an external review process to their members. In addition, adverse benefit determinations and final adverse benefit determinations will direct consumers to the applicable external review process.

 

4.     Are State regulators required to post this information?

 

No.







5.    
Are health plans subject to a federal external review process required to use MAXIMUS or can they use their own contracted IRO vendors?

 

Self-insured nonfederal governmental plans and health insurance issuers using a Federally-administered external review process must comply with:

 

·  the HHS-Administered Federal External Review Process (described in Technical Release 2011-02 , or

 

·  the private, accredited Independent Review Organization (IRO) process established by the Department of Labor and also described in T.R. 2011-02.

 

6.     Can an issuer or plan use both the HHS-Administered Federal External Review Process and the private accredited IRO process, sending members to different processes based upon internal criteria?

 

No. An issuer or plan must make an election of either the HHS-Administered Federal External Review Process or the private accredited IRO process.  Issuers and plans cannot utilize both processes simultaneously.

  

7.     If a health insurance issuer or self-insured non-Federal governmental plan has not yet submitted their election to use a federal external review process, can they still do so at this time?

 

Yes. While the deadline for submissions was January 1, 2012, an issuer or plan that failed to submit an election pursuant to Technical Guidance issued June 22, 2011, should do so as soon as possible to ensure that claimants are not impacted by the issuer’s or plan’s delay. 

 

All health insurance issuers in States without a State external review process that meets Federal standards and self-insured non-Federal governmental plans must submit information regarding their election to use either the HHS-Administered Federal External Review Process or  to privately contracts with IROs.  This information must be sent to:   externalappeals@cms.hhs.gov by the date health plans and issuers plan to use the Federal external review process. 

 

Self-insured non-Federal governmental plans and health insurance issuers may switch their election at any time, but must notify CMS in advance of their decision to switch their election.  CMS should be notified of an election, or a change of election, at externalappeals@cms.hhs.gov  

 

Plans and issuers electing the HHS-Administered Federal External Review Process must include certain contact information in their election. The list of required information can be found in guidance issued on June 22, 2011, (http://cciio.cms.gov/resources/files/hhs_srg_elections_06222011.pdf), and includes:







·         contact information for designated personnel in their appeals department, including name(s), mailing address(es), telephone number(s), facsimile number(s), electronic mail address(es), and

·         contact information to be used for expedited cases outside of normal business hours (including nights, weekends, and holidays). 

 

Self-insured non-Federal governmental plans should also include contact information for the plan administrator, including name, mailing address, telephone number, facsimile number, and electronic mail address.

 

8.     Is health plan election information (the HHS-Administered Federal External Review Process or the accredited IRO process) publicly available? 

 

At this time, election information is not posted on the CMS website.

 

9.     For plans or issuers that have transitioned from some other external review process to the HHS-Administered Federal External Review Process (or vice versa), how can a plan or issuer determine which external review process applies to a given claim?

 

The applicable external review process for any particular claim is based on the external review process applicable to the plan or issuer at the time a final internal adverse benefit determination (or in the case of simultaneous internal appeals and external review, the adverse benefit determination) is provided to the patient and/or claimant.  As such, adverse benefit determinations or final internal adverse benefit determinations should direct a patient/claimant to the applicable external review process.

 

10.  Where is information available on the HHS-Administered Federal External Review Process?

 



More information is available at:

 

www.cms.gov.cciio

 

https://www.cms.gov/CCIIO/Programs-and-Initiatives/Consumer-Support-and-Information/External-Appeals.html

 

 

THE EXTERNAL REVIEW PROCESS –GUIDANCE FOR HEALTH PLANS AND ISSUERS







1.     Can health plans use the same independent reviewer organization for determining an internal appeal and an external review request?

 

No, 45 CFR  147.136(d) outlines the requirements for the federal external review process, including the requirement that there be a process for approving IROs eligible to be assigned to conduct external review and a process for random assignment of external reviews to IROs. In general, the Departments require that the IRO have no conflicts of interest that will influence its independence. 

2.     How is “urgent” defined?

 

The term “urgent” is used in 29 CFR 2560.503-1(m)(1) and describes certain situations in which an issuer must provide expedited processing of claims and internal appeals. For purposes of claims and internal appeals, an “urgent” claim is a claim involving medical care or treatment in which, in the opinion of the attending health care provider, the application of the time period for making non-urgent determinations:

 

·         Could seriously jeopardize the life or health of the claimant or the ability of the claimant to regain maximum function, or

·         Would subject the claimant to severe pain that cannot be adequately managed without the care or treatment that is the subject of the claim.

 

For external review purposes, 45 CFR 147.136(d)(2)(ii) references situations in which a claimant has a right to an expedited external review.  These situations are:

 

·         When an adverse benefit determination involves a medical condition of the claimant for which the timeframe for completion of an expedited internal appeal would seriously jeopardize the life or health of the claimant or the ability of the claimant to regain maximum function, 

·         When a final internal adverse benefit determination involves a medical condition of the claimant for which the timeframe for completion of an expedited internal appeal would seriously jeopardize the life or health of the claimant or the ability of the claimant to regain maximum function, or

·         When a final internal adverse benefit determination concerns the admission, availability of care, continued stay or health care service for which the claimant received emergency services but has not yet been discharged from a facility.







3.    
What is the definition of “immediately” in the following sentence: “Upon receipt of a final external review decision reversing the adverse benefit determination (ABD) or final internal ABD, the plan or issuer must immediately provide coverage or payment of the claim.” 
http://cciio.cms.gov/resources/files/interim_appeals_guidance.pdf



Once a final external review decision is made, which reverses the ABD, the plan or issuer must provide the benefits or make payment on the claim without delay and in a reasonable amount of time considering any medically exigent circumstances, regardless of whether the plan or issuer intends to seek judicial review of the external review decision and unless and until there is a judicial decision otherwise.

  

4.     Can a health plan compel consumers to undergo external review before filing a lawsuit?

 

There is no requirement under the federal regulations that requires a consumer to pursue external review before filing a lawsuit.  However, State law may place requirements on consumers. 



 

5.     Are denials of pharmacy benefits subject to external review?

 

Yes, denials of medical and pharmacy benefits by group health plans and health insurance issuers offering group and individual health insurance coverage are subject to external review.  Even if a pharmaceutical benefit is obtained via a stand-alone pharmacy plan, denials of benefits may be appealed.  Benefits from stand-alone dental and vision plans, like other excepted benefits, are not subject to external review.  However, if dental or vision benefits are included in a health plan, then denials of these benefits are subject to review.

  

 

HHS-ADMINISTERED FEDERAL EXTERNAL REVIEW  PROCESS QUESTIONS











        1.    
Are individually underwritten products where applicants have been denied enrollment in a certain plan due to underwriting criteria subject to external review?

 

Yes.  The scope of external review in the HHS-Administered Federal External Review Process includes review of adverse benefit determinations and final internal adverse benefit determinations involving medical judgment (including but not limited to those based on the plan’s or issuer’s requirements for medical necessity, appropriateness, health care setting, level of care, or effectiveness of a covered benefit).  While it is not possible to address every scenario in this FAQ, assuming that the consumer is denied enrollment in a plan based on medical underwriting criteria, this denial was a determination made using medical judgment and is eligible for external review.

 

2.     Is an individual eligible for external review if he/she seeks to enroll in a plan with a lower deductible, and the health plan only offers a higher deductible health plan option?

 

The scope of the HHS-Administered Federal External Review Process includes the review of adverse benefit determinations and final internal adverse benefit determinations involving medical judgment (including but not limited to those based on the plan’s or issuer’s requirements for medical necessity, appropriateness, health care setting, level of care, or effectiveness of a covered benefit).  While it is not possible to address every scenario in this FAQ, assuming that the consumer is denied enrollment in a lower deductible plan based on medical underwriting criteria, this denial was a determination made using medical judgment and is eligible for external review.

3.     Can you explain in more detail about the process and standards for the review of rescissions?







Rescissions are treated similarly to other appeal cases in which qualified reviewers conduct an external review and render a final decision.  In the HHS-Administered Federal External Review Process, the HHS contractor, MAXIMUS, will review appeals of alleged rescissions of coverage to determine whether the plan action complies with applicable statutory and regulatory requirements limiting rescissions to a narrow range of instances, such as cases of fraud and of intentional misrepresentation of material fact.  The reviews will be conducted and completed within the standard review timeline.







4.     Who will enforce the external review decisions made in the HHS-Administered Federal External Review Process?







Complaints about or concerns with the HHS-Administered Federal External Review Process should be made to the U.S. Department of Health and Human Services, Center for Medicaid & Medicaid Services, Center for Consumer Information and Insurance Oversight at
externalappeals@cms.hhs.gov.







5.     Does HHS know when the Final Rule will be released?







No determination has been made at this time.



 

 

MAXIMUS: EXTERNAL REVIEW PROCESS

 

1.     What regulatory citation does MAXIMUS use when requesting documents from anyone during an external review?

 

Correspondence from MAXIMUS indicates that MAXIMUS is the contractor for the HHS-Administered Federal External Review Process.  Any questions that a party may have about the authority provided to MAXIMUS to operate on behalf of the U.S. Department of Health and Human Services can be directed to MAXIMUS at: ferp@maximus.com or to CMS at: externalappeals@cms.hhs.gov

 

2.     Does MAXIMUS provide a no conflict of interest statement for each appeal case?

 

MAXIMUS meets URAC conflict of interest standards and requirements.  A conflict of interest statement will be made available at www.externalappeal.com.

 

3.     MAXIMUS is a contractor for Medicare appeals, and collects data from health plans using a form entitled, “Medicare Managed Care Reconsideration Background Data Form.”  Will a similar form be used for the HHS-Administered Federal External Review Process?





 Yes.  This form is under development and will be available soon. 

4.     Does MAXIMUS have the authority to make determinations of whether an applicant has committed fraud or intentionally misrepresented a material fact?

  

MAXIMUS will make a determination regarding whether a rescission was appropriate based on the record provided for the external review.

 

5.     I understand that a decision is binding but if the plan disagrees with a decision, how does it provide feedback for future cases?

 

Health plans and issuers may provide feedback to MAXIMUS at: ferp@maximus.com

 

 

 

 

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