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Maine.gov > PFR Home > Insurance Regulation > Rule 850 Basis Statement 2012

Basis Statement and Summary of Comments
Rule Chapter 850: Health Plan Accountability, 2012 Amendments

Summary of Amendments
Pursuant to the November 21, 2011 Notice of Rulemaking, Superintendent of Insurance Eric Cioppa held a public hearing on December 20, 2011 at the Department of Professional and Financial Regulation building, 76 Northern Avenue, Gardiner, Maine.  The public comment period was held open until January 6, 2012 at 5:00 p.m.  The primary purposes of the amendments are to reflect changes in underlying Maine law relating to health plan network adequacy standards, enacted by P.L. 2011, ch. 90, and to assimilate federal standards relating to grievance procedures, internal appeals, and external appeals.

The amended rule is proposed in accordance with 24-A M.R.S.A. §§2772, 2774, 4218, 4218‑A, 4222-A, 4303, 4309, and 4309-A.  This is a major substantive rule.  It was provisionally adopted by the Superintendent on March 9, 2012, approved by the Attorney General as to form and legality on March 12, 2012, and submitted to the Legislature for review pursuant to 5 M.R.S.A. § 8072.  Pursuant to 2011 Resolve Chapter 150, these amendments were approved by the Legislature for final adoption provided that the provision related to access to behavioral health care practitioners, Paragraph 7(B)(3), is amended to require the reasonable availability of those providers within a carrier’s delivery system. This Resolve was signed into law by Governor LePage on April 6, 2012.  As an emergency measure, the Resolve is effective when signed by the Governor.

Primary sources of information relied upon by the Bureau of Insurance in developing the provisionally adopted amendments include the network adequacy standards in the 2012 Standards and Guidelines for the Accreditation of Health Plans of the National Committee for Quality Assurance (NCQA); the Managed Care Network Adequacy and Utilization Review and Benefit Determination Model Acts of the National Association of Insurance Commissioners (NAIC); the U.S. Public Health Service Act Section 2719; interim final Internal Claims and Appeals and External Review Processes regulations promulgated by the U.S. Departments of Health and Human Services, Labor, and Treasury (45 CFR 147.136, 29 CFR 2560.503-1 & 2590.715-2719, and 26 CFR 54.9815-2719T); and professional judgment.
Parties Submitting Comments
The following persons and organizations testified at the December 20, 2011 hearing:
Gordon Smith
Executive Vice-President
Maine Medical Association
on behalf of:

  • Maine Medical Association
  • Downeast Association of Physician Assistants (DEAPA)

Joseph P. Ditré
Executive Director
Consumers for Affordable Health Care

Katherine Pelletreau
Executive Director
Maine Association of Health Plans
which represents:

  • Anthem Blue Cross and Blue Shield
  • Aetna
  • Cigna
  • Harvard Pilgrim Health Care
  • United Health Group

Jeffrey Austin
Maine Hospital Association

Gwen Simons, Esq.
Maine Chapter of the American Physical Therapy Association

Kristine M. Ossenfort, Esq.
Director of Government Relations
Anthem Blue Cross and Blue Shield

The following persons and organization submitted written comments during the comment period:

Senator Kevin L. Raye
President of the Maine Senate

Senator Rodney Whittemore
Senate Chair of Insurance and Financial Services Committee

Jeffrey Austin
Maine Hospital Association

Jessa E. Barnard, Esq., on behalf of:
Maine Medical Association

Jessa E. Barnard, Esq., on behalf of:
Downeast Association of Physician Assistants
(Maine Chapter of the American Academy of Physician Assistants)

Richard White
General Manager, Employer and Provider Partnerships
Martin’s Point HealthCare 

Kristine M. Ossenfort, Esq.
Director of Government Relations
Anthem Blue Cross and Blue Shield

Timothy B. Meyer
Vice-President, Government Affairs, Northeast Region
Aetna

Kevin A. Lewis
Chief Executive Officer
Maine Primary Care Association

Katherine Pelletreau
Executive Director
Maine Association of Health Plans

Joseph P. Ditré, Esq.
Executive Director
Consumers for Affordable Health Care
on behalf of:
(1) Consumers for Affordable Health Care
(2)  AARP – Maine
(3)  Eastern Area Agency on Aging
(4)  Maine Association of Substance Abuse Programs, Inc.
(5)  Maine Community Action Association
(6)  Maine Equal Justice Partners
(7)  Prescription Policy Choices
(8)  Washington Hancock Community Agency
(9)  Western Maine Community Action

Hilary Schneider
State Director of Government Relations and Advocacy
American Cancer Society

Lisa Harvey-McPherson, RN, MBA, MPPM
Vice-President, Continuum of Care
Eastern Maine Healthcare Systems

EXPLANATION OF AMENDMENTS
AND SUMMARY OF COMMENTS WITH RESPONSES

(References are to written comments except as otherwise indicated.)

Sections 1 through 3:  Purpose, Authority, Applicability and Scope.  Technical changes have been made to update these sections and to incorporate material from former Section 4 (“Effective Date”) which should have been included in Section 3 (“Applicability and Scope”).  No comments were received on the amendments to these sections, which are adopted as proposed.

Section 4:  Affordable Care Act.  This section is new.  Subsection A clarifies the relationship between this rule and the federal Affordable Care Act (ACA), and Subsection B provides a procedure by which grandfathered plans may obtain exemptions from certain provisions of this rule.

Comment:  The Maine Association of Health Plans stated:  “Although alignment with the ACA is critical, there is danger in tying specific language to other federal standards.  For example, the proposed rule contains a reference to a Department of Labor definition that is already irrelevant.  Maine should retain sufficient flexibility to ensure that this rule is not tied to standards that may quickly become outdated.”

Response:  The Bureau has taken the need for flexibility into consideration in proposing amendments to the rule.

Comment:  Anthem commented that Subsection A is unnecessary because the requirement to comply with the ACA is already codified at 24-A M.R.S.A. §§ 4218-A and 4309-A.

Response:  Subsection A is adopted as proposed.  It has been retained to provide notice that there are additional federal requirements that are not codified in detail in this rule, and that compliance with those requirements is part of a carrier’s obligations under Maine law.  While the Bureau has attempted to assimilate key elements of the federal requirement into the rule, including all of the federal requirements would make the rule too lengthy and require frequent amendments to the rule as federal requirements are amended. 

Comment:  Aetna recommended striking Paragraph 4(B)(2), which requires notice to enrollees that an exemption has been claimed from certain requirements of Rule 850 based on the health plan’s grandfathered status, because under the ACA, employers and carriers already have to provide notice to members if their plan has been grandfathered. 

Comment:  Anthem commented that the requirement that a carrier apply for an exemption is unnecessary and unduly burdensome.  Anthem suggested amending this section to require that documentation of a plan’s grandfathered status be provided to the Bureau upon request if the Bureau has received an inquiry questioning the plan’s status, rather than have a standing request for all grandfathered plans.

Comment:  The Maine Association of Health Plans stated, “It is our understanding that under the ACA carriers will already have to provide notice to members if their plan has been grandfathered.  Further notice to inform members that because their plan is grandfathered, it qualifies for certain exemptions under the rule seems unnecessary and excessive.  Could plans include language in their initial notification that would cover this requirement rather than having to send two notices?”

Response:  When the Bureau was developing the proposed amendments, we considered making certain provisions inapplicable to grandfathered plans.  However, in light of the requirements that grandfathered plans must currently meet under the existing rule, we could not identify any such provisions, nor have any of the comments identified specific provisions that they consider inappropriate for grandfathered plans.  Furthermore, subjecting carriers to two different sets of rules depending on the issue date of coverage could be more burdensome than having a uniform procedure in place that is consistent with current nationwide standards.  That is why the Bureau made the exemption process voluntary, limited to the specific provisions of the rule the carrier has identified as problematic.  If the carrier does claim an exemption, notice that the plan is grandfathered does not necessarily give enrollees adequate information about the effect of grandfathering on their rights under state law.  However, we agree with the comments that requiring separate notices would be burdensome, and Paragraph 4(B)(2) has therefore been revised, as shown below, to clarify that carriers may use their federal notices to provide the required information.  Section 4 is otherwise adopted as proposed.

B.        A carrier offering one or more health plans entitled to grandfathered status under the federal Affordable Care Act may request an exemption for its grandfathered business from certain requirements of this rule by submitting the following to the Superintendent for approval within 180 days after the effective date of this rule:

1)         A letter identifying the provisions of this rule for which an exemption is requested claimed together with a detailed an explanation of why the exemption is permitted pursuant to 24-A M.R.S.A. §4320-G and the federal Affordable Care Act.

2)         Copies of notices to that have been or will be provided to enrollees advising that an exemption has been claimed from certain requirements of this rule because of the health plan’s grandfathered status.  This requirement may be satisfied by including information about exemption from the requirements of this rule in the notices of grandfathered status provided to policyholders and enrollees pursuant to federal law, and providing the Bureau with a sample copy of the notice.  

3)         The number of enrollees impacted by the exemption.

Section 5:  Definitions.  The definitions below have been added or substantially amended.  In addition, technical revisions have also been made to other definitions, including the deletion of terms that are not used.  Because of the number of definitions and the number of citations that would be affected, they have not been renumbered sequentially to reflect the additions and deletions.  No comments have been received regarding the technical revisions, which are adopted as proposed.

Subsection 5(A):  Adverse Benefit Determination.  Existing Subsection 5(A) treats the terms “adverse determination” and “adverse health care treatment decision” as interchangeable.  This is not accurate, because not all adverse determinations involve health care treatment decisions.  Therefore, we have added a new term, “adverse benefit determination,” taken from the federal internal appeal and external review regulations implementing the ACA, and we have reorganized Sections 8 and 9 in order to clarify that consumers have the right to be informed and the right to contest all adverse benefit determinations, but the specific protections and procedures differ depending on what kind of adverse determination is involved.

Comment:  Anthem commented, “It is not clear why an ‘adverse benefit determination’ includes an ‘adverse healthcare treatment decision’ when they are defined as two separate types of adverse decisions and follow two separate processes (the appeals procedure set forth in the rule for adverse health care treatment decisions versus the grievance procedures set forth for adverse benefit determinations).” 

Response:  We agree that further clarifications to the sections relating to adverse decisions, grievances, and review are in order, as discussed more fully in the comments on those sections.  However, redefining the term “adverse benefit determination” to exclude adverse health care treatment decisions would not make the rule clearer.  When a claim is denied because the proposed treatment is not medically necessary, to say that the insurer has not made an adverse benefit determination would be inconsistent with the generally understood meaning of the term both in federal law and in ordinary English usage.  This definition is therefore adopted as proposed.

Subsection 5(E):  Carrier

Comment:  Anthem recommended amending the definition of carrier to clarify that it includes captive insurers. 

Response:  This rule is adopted pursuant to 24-A M.R.S.A. Chapter 56-A, the Health Plan Improvement Act, which defines a “carrier” at Subsection 4301-A(3).  That definition was amended by P.L. 2011, ch. 364, to add 24‑A M.R.S.A. § 4301-A(3)(H), which provides that the term “carrier” includes: “Notwithstanding any other provision of this Title, an entity offering coverage in this State that is subject to the requirements of the federal Affordable Care Act.”  This clause was incorporated into the proposed amendments as Paragraph 5(E)(8).  Thus, to the extent that captive insurers are subject to the requirements of the ACA, they are also subject to this rule.  This is consistent with 24-A M.R.S.A. § 6702(4)(A), which requires a captive insurance company to comply with all applicable federal laws.

However, the provisions of this rule should not apply to captives except to the extent that they implement provisions of the Insurance Code that have been incorporated into the captive insurance law.  Last year, 24-A M.R.S.A. § 6719 was amended by Chapter 90 to provide (emphasis added): “An insurance law of this State, other than described or referenced in this chapter, does not apply to a captive insurance company.  This exclusion must be strictly construed so as to further the public policy in favor of providing alternative means for providing insurance coverage.”  Subsection 5(E) is therefore adopted as proposed.

Subsection 5(H):  Clinical Peer

Comments:  No changes to the current definition have been proposed.  However, at the hearing the American Physical Therapy Association commented that the federal rule defines a health care professional as a physician or other health care professional licensed, accredited or certified to perform specified health services consistent with state law.  They recommended reviewing the definition of “clinical peer” to make sure that it does not permit utilization review entities to use practices such as permitting athletic trainers to review medical necessity of physical therapy cases.   

Response:  A “clinical peer” is defined to mean “a physician or other licensed health care practitioner who holds a non-restricted license in a state of the United States in the same or similar specialty as typically manages the medical condition, procedure or treatment under review, or other physician or health care practitioner with demonstrable expertise necessary to review a claim.”  The licensure requirement is consistent with the federal standard described by the American Physical Therapy Association.  Federal law, as set forth at 29 CFR 2560.503-1(h)(3)(iii), does not use the term “clinical peer,” but provides a substantially similar peer review standard by requiring consultation “with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment.”  The Bureau does not believe any changes are required to the current definition, which does not permit unlicensed or unqualified persons to make utilization review decisions.

 

Subsection 5(M-1) Designated Provider.  Chapter 90 amended the adequate access clause of the Maine Health Plan Improvement Act, 24-A M.R.S.A. § 4303(1), to read as follows: “A carrier offering or renewing a managed care plan shall provide to its members reasonable access to health care services.  A carrier may provide incentives to members to use designated providers based on cost or quality, but may not require members to use designated providers of health care services.”  This definition, along with new substantive provisions relating to incentives set forth in Subsection 7(D), has been added in response to requests for clarification.

Comment:  At the hearing Consumers for Affordable Health Care commented that “designated provider” was not defined in the proposed amendments.

Comment:  At the hearing and in written comments the Maine Hospital Association recommended adding a definition of “designated provider.”

Response:  In response to the comments received the Bureau has adopted a definition, set out below as definition M-1.  It is intended to reflect the Bureau’s understanding of the legislature’s intent that networks must be adequate so that enrollees are not required to use specific designated providers in order to obtain needed services. 

M-1.    “Designated Provider” means any health care provider that has been identified so that a covered person may receive incentives for obtaining services from the designated provider that differ from the incentives generally available for obtaining services from a network provider.  A designated provider does not have to be a network provider within the plan’s service area.  A designated provider may be identified as a member of a class (for example, through a rating system), or may be identified by name.  A designated provider may be designated either in advance or at the time an enrollee requests services.

Subsection 5(Q): Essential Community Provider

Comment:  At the hearing Consumers for Affordable Health Care commented that “essential community providers” remains in the definitions but not in the body of the rule.  

Response:  As discussed later, the Bureau has restored the language requiring carriers to describe their plans for developing relationships with essential community providers at Paragraph 7(A)(4).  However, the list of potential essential community providers under federal law is more expansive than the current definition of “essential community provider.”  Therefore, Subsection 5(Q) has been revised as follows:

Q.        “Essential Community Provider” means includes, but is not limited to, the following, consistent with the requirements of federal law:

            1)         Federally-qualified health centers as defined in section 1861(aa) of the Social Security Act;

            2)         nonprofit maternal and child health providers that receive funding for their services under Title V of the Social Security Act;

            3)         Indian health programs under the Indian Health Care Improvement Act; and,

            4)         health care service provider recipients or sub recipients of grants under Title X, Title XIX, Title XXIII or sections 329, 330, 340, 340A, of the Public Health Service Act.

Subsection 5(S): Grievance

Comment:  Anthem commented it is unclear why the term “Grievance” would encompass an adverse health care treatment decision since that type of complaint would follow the appeal process and not the grievance process set forth in the rule. 

Response:  The Bureau has made several changes throughout the rule to clarify which requirements apply only to “medical” determinations (health care treatment decisions), which requirements apply only to non-medical issues, and which apply to both medical and non-medical adverse benefit determinations.  As a result of these non-substantive changes, Section 8 only addresses medical issues and Section 9 only addresses non-medical issues.  Section 9 has been re-titled “Adverse Benefit Determinations (Not Involving Adverse Health Care Treatment Decisions).”  Former Subsection 9(A), Grievance Register, and former Subsection 9(B), Grievance Procedures, have been moved to a separate Section 10 entitled “Grievance Register and Grievance Procedures,” which includes requirements applicable to medical and non-medical grievances.   

Comment:  Consumers for Affordable Health Care recommended adding complaints regarding adverse benefit determinations to the definition of “grievance.” 

Response:  This recommendation has been accepted and the definition has been amended as set out below. 

S.         “Grievance” means a written complaint submitted by or on behalf of a covered person regarding the:

DRAFTING NOTE:  Written complaints include complaints sent via e-mail.

                        1)         Availability The availability, delivery or quality of health care services, including a complaint regarding an adverse health care treatment decision determination made pursuant to utilization review;

                        2)         Claims payment, handling or reimbursement for health care services; or

3)         Matters pertaining to the contractual relationship between a covered person and a health carrier; or

4)         Adverse benefit determinations.

Subsection 5(S-1):  Grievance Procedure.  This definition is new.  It was added to clarify the scope of the requirements for carriers to maintain formal grievance procedures.

Comments:  At the hearing the American Physical Therapy Association commented that the definition is confusing and asked if it is consistent with federal law. 

Response:  The Bureau believes the definition is consistent with federal law.  However, the Bureau received a number of comments indicating the rule was confusing with respect to the relationship between Adverse Health Care Treatment Decisions, Adverse Benefit Determinations, Grievances and Appeals.  In response to those comments the Bureau has made several changes to provide additional clarity, and has added a drafting note to this definition:

S-1.      “Grievance procedure” means a formal process whereby a covered person or a representative of a covered person can contest an adverse benefit determination.

DRAFTING NOTE:  Because “adverse benefit determinations” include adverse medical decisions as well as adverse non-medical determinations, the term “grievance procedure” includes the procedures for review of both medical and non-medical determinations.

Subsection 5(FF):  Primary Care Provider

Comment:  At the hearing and in written comments the Downeast Association of Physician Assistants (DEAPA) recommended changing “physician’s assistant” to “physician assistant” for consistency with their licenses issued under Title 32.  They also recommended removing the word “direct” from the definition because it is inconsistent with the requirements of the licensing boards.  

Response:  Both of these recommendations have been accepted as set out below:

FF.       “Primary care provider” means a physician, or a nurse practitioner or physician’s assistant under the direct supervision of a physician, under contract with a managed care plan to supervise, coordinate, and provide initial and basic care to plan enrollees, maintain continuity of patient enrollee care, and initiate patient enrollee referrals for specialist care.

Subsection 5(MM):  Special Needs

Comment:  At the hearing, Consumers for Affordable Health Care commented that “special needs” remains in the definitions but not in the body of the rule.

Response:  Special needs patients are addressed in the body of the rule at Subsection 7(F), Coordination of Care.  Therefore, this definition has been retained.

Subsection 5(QQ):  Urgent Services or Urgent Care.  This term refers to situations requiring immediate medical attention, whether or not they involve “emergency medical conditions” or “emergency services” as defined in Subsections 5(O) and (P).  In contrast to emergencies, which by definition are capable of being identified as such by a prudent layperson, the identification of urgent circumstances might require professional judgment.

Comments:  At the hearing the American Physical Therapy Association stated in part:  “The previous ERISA law referred to the carrier being required to give deference to a physician who had knowledge of the claimant’s condition, so this rule makes a very distinctive change from the physician to attending provider, and we would like to see that changed so it is very clear that if a physical therapy claim needs to be expedited, and it is the opinion of the physical therapist who is treating that patient that it needs to be expedited, that the carrier has to give deference to that request.”

Response:  We agree that the attending health care provider must have the ability to evaluate whether services are urgent, regardless of whether the particular provider is licensed as a physician.  This would include, for example, a nurse practitioner or physician assistant acting as a primary health care provider (PCP).  Therefore, the reference to “physician” in the definition has been changed to “attending provider,” as follows:

QQ.     “Urgent Services” or “Urgent Care” means those health care services that are provided to treat a condition or illness of an individual that if not treated within twenty four hours presents a serious risk of harm medical care or treatment with respect to which the application of the time periods for making non-urgent care determinations could seriously jeopardize the life or health of the covered person or the ability of the covered person to regain maximum function, or, in the opinion of a physician an attending provider with knowledge of the covered person’s medical condition, would subject the covered person to severe pain that cannot be adequately managed without the care or treatment that is the subject of the claim.

Comment:  Aetna recommended clarification of the definition of “urgent care” because it is confusingly similar to the definition of “emergency services,” and both definitions could apply to the same circumstances.  Aetna stated that the only apparent difference is that emergency services are subject to the prudent layperson standard while urgent care does not, but urgent care includes a physician standard to allow for the inclusion of certain pain-management situations. 

Comment:  At the hearing and in written comments Anthem recommended the distinction between urgent care and emergency care be clarified.  Anthem stated that for Anthem’s members urgent care is often the type of treatment that can be obtained at a walk-in center, a more immediate need than a visit to a primary care provider but not warranting a visit to the emergency room.  Anthem recommended revising the definitions to draw a clearer distinction between urgent care services and emergency care.

Response: The definition of urgent services generally tracks the federal definitions.  Aetna and Anthem are accurate in their general descriptions of the relationship between “urgent” and “emergency” services.  Although the term “urgent care facility” is commonly used to mean a non-emergency facility, and that distinction has been clarified in Paragraph 7(B)(4) as discussed below, the terms are not mutually exclusive as applied to the requirements for expedited review.  It should be noted that an additional limitation on “emergency services” is that they must be provided in an emergency facility or setting.

Section 6.  Quality Assurance Standards.  The only proposed amendment was the correction of an obsolete cross-reference.  No comments were received relating to this section, and the amendment is adopted as proposed.

Section 7:  Access to Services.  Before it was amended by Chapter 90, 24-A M.R.S.A. § 4303(1) required the Superintendent to adopt rules establishing specific time and distance standards for access to services.  This requirement has been repealed, along with detailed provisions for limited exemptions from the geographic access requirements, and replaced with a more flexible requirement that “A carrier offering or renewing a managed care plan shall provide to its members reasonable access to health care services.”  Accordingly, Section 7 has been amended to repeal most of the detailed access standards in existing Subsections 7(C) and 7(D).  Instead, each carrier’s access plan, filed with the Bureau of Insurance, must include the carrier’s own standards for compliance with the law’s reasonable access requirements, subject to basic requirements set forth in Subsections 7(A) through 7(C).  In particular, Paragraph 7(A)(3) has been amended to require that the carrier’s network must be “sufficient in numbers and types of providers to assure that all services to covered persons will be reasonably accessible without unreasonable delay,” and that the carrier’s standards “must be realistic for the community, the delivery system, and clinical safety.”

General comments regarding legislative intent

Comment:  Senate President Kevin Raye submitted a letter stating in part:

Repealing the Rule 850 travel restrictions was intended to allow insurance carriers to offer incentives for the use of health care providers who offer lower cost or better outcomes, not penalize any insured person who chooses to seek health care services locally....  It is important that the State have robust requirements for defining an adequate network in a way that affords patients maximum choice.  Neither providers nor insurers should have an unfair advantage in the negotiation with each other.  Rule 850 as previously designed served to drive up costs by removing any incentive for higher cost providers to be more competitive.  A more reasoned approach would be to ensure that all providers have an incentive to hold down costs, while recognizing that some of them are disadvantaged by a higher proportion of MaineCare and Medicare patients.

Comment:  Senator Rodney Whittemore, Senate Chair of the Joint Standing Committee on Insurance and Financial Services, submitted a letter stating in part:

P.L. 90 authorizes carriers to offer incentives to use designated providers “based on cost or quality” of care.  The legislation was very specific with the choice of the word “or” instead of the word “and” so that both conditions would not have to be met....  We need to deal with the reasons why the cost of medical procedures is higher in certain regions or specific facilities.  Repealing Rule 850 travel restrictions under P.L. 90 starts this process.  Carriers may now start to offer plans that provide people incentives to use lower cost providers.  It is extremely important to stress that it is not the intention of the Legislature to permit insurance companies to deny coverage for those who choose to seek care close to home.  [Assessing] penalties to patients is not the answer; providing incentives must be the course of action.”
 
Comment:  At the hearing and in written comments the Maine Hospital Association, stating that it represents all 39 hospitals in Maine, expressed the view that the proposed elimination of the geo-access standards does not reflect the requirements of the statute or the legislative intent.  Their comments included a detailed history of the legislation and legislative debates regarding changes to the access requirements for managed care plans.  They stated in part:

It is clear that carriers are no longer obliged to have a provider network be consistent with specific time and travel distances.  The legislature is allowing carriers to provide “incentives” to consumers to use “designated providers.”  Yet, the legislature was quite clear that it would not allow carriers to require consumers to use designated providers....  When crafting the language that was enacted, the focus of the legislature was Maine’s long-standing prohibition on insurance carriers offering different rates, or incentives, for consumers to use providers who were outside of the prescriptive Rule 850 time/travel distances.  By contrast, the State’s Health Plan for state workers is not bound by Rule 850’s provisions; state employees could be ‘incented’ to travel.  The commercial carriers argued that they should be given that same ability.

Comment:  Written comments from Consumers for Affordable Health Care included a history of Rule 850, included a legal analysis of statutory interpretation and legislative history, and incorporated by reference the testimony provided by the Maine Hospital Association and the Maine Chapter of the American Physical Therapy Association on December 20, 2011 regarding the legislative history of Chapter 90.  Further, Consumers for Affordable Health Care stated: 

By simultaneously reenacting the “reasonable access to health care services requirement” while removing the limiting provisions found in paragraphs B and C, the Maine Legislature intended to continue the original Act including the travel and distance criteria in Rule 850 used to interpret the original Act, to expand the application of the term “reasonable access” to all providers and all types of roads, and to prevent carriers from restricting such access to designated providers.

Comment:  The American Cancer Society commented that it is inconsistent with the legislative intent to completely eliminate the standards for geographic and timely access to services, through the removal of Subsection 7(C), and to provide no guidance regarding the incentives that carriers can put in place for using designated providers.

Response:  The Bureau believes the adopted amendments provide both flexibility and consumer protection, consistent with the Legislature’s intent.  These standards may be revisited in the future if experience demonstrates that further changes are required.

General comments regarding national standards such as NCQA

Comment:  The Maine Primary Care Association stated, in part: “NCQA is a national standard setting body and generally accepted for its rigor and performance review metrics.  However, the proposed rule changes do not embrace sufficient protections even with its deference to NCQA as the surrogate for access standards.”  The Maine Primary Care Association recommended addressing how plans will monitor NCQA accessibility standards from a quality of care perspective, including a focus on whether plan members – based on specific chronic conditions – are obtaining necessary routine care as clinically indicated.

Comment:  Consumers for Affordable Health Care stated: “Many of the NCQA and URAC standards are process oriented and are insufficient to meet the needs of consumers.  The Maine Quality Forum and the National Quality Forum have been developing more specific quality metrics that could serve as criteria or standards that carriers must adhere to and hold network providers accountable for their quality improvement arrangements with providers.  Any quality standards set or used by the carriers should be filed with the Bureau and publically available.” 

Response:  Standards for quality management and improvement are detailed in a separate section of NCQA’s accreditation guidelines.  Quality of care issues are distinct from issues of access to care, and go beyond the scope of the proposed amendments that were noticed.   

Comment:  Aetna expressed support for the overall changes made to the access to services standards and stated the proposal meets the legislature’s intent, and increases flexibility to address costs.  Aetna stated that, “Adhering to national standards, such as those developed by the NCQA, provides a reasonable and tested system for member protection.  Removing the geographic accessibility standards in the existing rule allows carriers to improve access to higher quality providers while encouraging all providers to meet higher standards.  This has been demonstrated in Maine by allowing the Maine State Employees Health Plan (MSEHP) to be exempted from theses current stands.  In a presentation to the Insurance and Financial Services Committee in 2011, the MSEHP reported that it has controlled costs and increased quality statewide without making a hardship on state employees’ access to care.  In addition, numerous Maine employers that self-insure, and therefore are not subject to Rule 850, are also utilizing similar approaches to improving cost and quality.” 
 
Comment:  At the hearing and in written comments Anthem stated they have no objection to NCQA or URAC requirements.  They recommended the rule provide that a carrier is deemed to have met the network adequacy requirements if the carrier has satisfied the certification requirements of an independent third-party such as NCQA or URAC.  This would minimize administrative burdens on both carriers and the Bureau.  

Response:  The recommendation to “deem” networks to be in compliance has not been accepted.  Certification will be given due weight in the Superintendent’s determinations, but NCQA and URAC are not regulatory bodies.

Comment:  The Maine Association of Health Plans’ comments included an observation that “self-funded plans are not subject to the network adequacy requirement of Rule 850, but yet there [have] been no substantial indications of network adequacy problems with those plans.” 

Comment:  At the hearing Consumers for Affordable Health Care recommended that the Rule provide more guidance as to what constitutes “reasonable,” and mentioned URAC as another possible reference point.

Response:  As mentioned elsewhere in this Basis Statement, NCQA standards are not the only standards carriers can refer to or use in developing reasonable access plans.

General comments regarding rural and underserved areas

Comment:  The Maine Primary Care Association stated that Federally Qualified Health Centers (FQHCs) are essential health providers in scores of medically underserved areas across Maine, and FQHCs provide a disproportionate amount of care to low income patients with chronic conditions.  They stated that “changes to Rule 850 Access protections to adopt only a standard of reasonable access potentially places many of these providers and communities in jeopardy.” 

The Maine Primary Care Association stated in part:  “FQHCs provide comprehensive primary care-including behavioral and oral health services – to over 175,000 patients in Maine.  Of these patients, 35% of them have some form of commercial coverage as their principal source of coverage.  Essential providers of health care services, FQHCs depend on the strength of their entire payer mix in what can be a fragile balance.  A reduction in private pay insureds through network contractions would not only affect access for those patients, but could result in loss of services and access for the entire community of patients- including those covered by ERISA plans, Medicare and MaineCare.  Moreover, FQHCs have been shown to provide extremely cost effective care....  Maintaining access requirements to these essential health providers is not only good for Maine’s underserved communities and populations, but also good for the overall insurance marketplace in Maine....  In addition, moving from access as defined by geographic distances to providers to ratios glosses over the maldistribution of providers so frequently observed in rural Maine.  Leaving access to simply the ratio of primary care providers to plan members could significantly disadvantage northern and downeast portions of the state ....”

Comment:  At the hearing the Maine Medical Association stated they were disappointed that the proposed amendments eliminate the time and distance standard for provider access.  They stated the elimination of the time and distance standards could lead to disruption in the rural area of the state, and that as proposed, the rule does not provide guidance.  In general they expressed concern that rural facilities may not survive if patients are incentivized to receive treatment elsewhere.  They also expressed concern about the impact of the proposed amendments on rural hospitals and physicians, stating that without limits on incentives to use designated providers there may not be sufficient numbers of patients to maintain surgical and other types of services in rural areas. 

Response:  As discussed more fully below, the Bureau has restored Paragraph 7(A)(4), which requires carriers to describe their plans for providing services for rural and underserved populations and for developing relationships with essential community providers.

Other general comments regarding access to services

Comment:  The Maine Medical Association stated that the proposed amendments to Rule 850 are broader than necessary to address a narrow problem – “that a few hospitals and specialty physician practices, and perhaps other unique practitioners, are able because of their sole community provider status to require payment of charges from health insurance carriers rather than agreeing to a negotiated participating provider rate....  The MMA long has believed that this is an isolated problem that has taken on mythical proportions.” 

The Maine Medical Association stated in part:  “The Bureau should focus on addressing the desire by carriers, picked up by the legislature, for carriers to have the flexibility to create innovative products that contain incentives to use designated providers, rather than gutting important protections for Maine patients.  Further, while the MMA has no opposition to the Bureau importing some of the National Committee for Quality Assurance (NCQA) standards into Chapter 850, the NCQA standards alone do not sufficiently address the requirement found in Chapter 90 to ensure ‘reasonable access to health care services’ and the proposed rules have omitted some key guidance to carriers found in the NCQA standards.”

Comment:  At the hearing the Maine Association of Health Plans expressed support for the proposed changes to the access standards.

Comment:  At the hearing Consumers for Affordable Health Care stated that the legislature not only repealed the current access law, but also replaced it with a “reasonable access” requirement.  They commented that the Legislature intended the designation of “designated providers” to be based on a balance of quality and cost.  They commented that reasonable has historically been defined in terms of four variables:  (1) distance, (2) time, (3) type of road, (4) type of provider.  They recommended the Rule provide more guidance as to what constitutes “reasonable,” and mentioned URAC as another possible reference point.

Response:  The Bureau believes the adopted amendments provide both flexibility and consumer protection, consistent with the Legislature’s intent.  These standards may be revisited in the future if experience demonstrates that further changes are required.

Comments relating to specific requirements regarding access to services

Comment:  Eastern Maine Healthcare System’s written comments included three specific recommendations, excerpted below.

1.   Include a provision to require carriers to keep local providers in the network (primary care, specialty care and behavioral health).

2.   Include a definition of designated provider....  Carriers should also be required to make publicly available the standards for designating providers.

3.   Include a definition of allowable consumer incentives for designated providers.

Comment:  At the hearing, the Maine Hospital Association recommended that “designated provider” be defined, that standards for cost and quality be included, and that allowable incentives be addressed.  The Maine Hospital Association also submitted written comments including several specific recommendations, excerpted in part below. 

1.   We recommend that the rule include the statutory language that a carrier may not force a consumer to use a preferred provider.

 

Response:  The Maine Preferred Provider Act, at 24-A M.R.S.A. § 2677-A, expressly provides that carriers, with the exception of HMOs, must provide benefits when services are rendered by nonpreferred providers.  A provision has been included in Subsection 7(D) clarifying that all requirements of the Preferred Provider Act continue to apply, along with additional language incorporating the requirement of 24-A M.R.S.A. § 4303(1) providing that “A carrier ... may not require members to use designated providers of health care services.”

2.   We recommend that the rule include a provision that requires carriers to keep local providers in their network.

Response:  The rule as proposed and adopted already requires carriers to maintain an adequate network.  However, in response to concerns expressed in several public comments, the Bureau has added an express provision at Paragraph 7(D)(4) clarifying that the authorization of incentive programs does not supersede network adequacy requirements.

3.   We recommend that the rule include a definition of “incentive” ... like waiving a co-pay, waiving a deductible, or offering to cover travel cost.  We also expected it to clarify that, in Senate President Raye’s unequivocal language, an incentive can not include excluding providers from the network....  [T]he only way to establish a system of incentives ... is to have at least two sets of providers available to the consumer – one for which no incentives are provided and at least one (“designated providers”) for which incentives are provided. 

Response:  In contrast to the pilot project provisions that have been repealed by Chapter 90, current law does not specify any detailed requirements for incentives, and gives the carrier flexibility to use a wide range of incentive arrangements to promote higher quality and lower cost.  Therefore, the Bureau has added provisions in new Subsection 7(D) clarifying that financial incentives may include, but are not limited to, waiver of copayments or coinsurance, waiver of deductibles, or travel expenses, and must be bona fide incentive programs that do not restructure the plan’s benefits in a manner contrary to the terms of the contract.  Provisions have also been included in Subsection 7(D) reiterating that incentive programs must comply with all other applicable legal requirements, and that carriers may not require enrollees to use designated providers.  Although there is no requirement for a carrier to maintain “at least two sets of providers.” preferred provider arrangements must continue to include benefits for out-of-network services as required by law.

4.   We recommend that the rule include a definition of “designated provider.”

Response: A definition of designated provider has been added to the rule at Subsection 5(M-1).

5.   We recommend that the carrier’s basis for designating providers be disclosed to the BOI and be available for public inspection....  Consumers should know if a provider is designated because of cost or quality or both....  Once a provider is “designated,” shouldn’t the public have access to the reason why?  If another provider is not designated shouldn’t the public know why not?  ...  Any data and methodologies used to make cost/quality comparisons must be publicly available.    

Response:  This recommendation has not been accepted.  However, in response to other recommendations we have added a new Subsection 7(D) clarifying the relationship between incentive arrangements, the underlying managed care plan, and the requirement to maintain an adequate network.  In contrast to the pilot project provisions that have been repealed by Chapter 90, current law does not specify any detailed requirements for incentives, and gives the carrier flexibility to use a wide range of incentive arrangements to promote higher quality and lower cost.  Some types of incentives are regulated under the applicable laws governing provider profiling, tiering, and credentialing.  When the requirements of these laws are triggered, carriers must comply fully with those requirements, and the Bureau has legal authority to request information regarding compliance with these requirements if needed.  However, it would not be appropriate to restrict carriers from offering other types of incentive arrangements when the carrier believes they can be mutually beneficial to the carrier and the covered person.  Likewise, no additional reporting requirements are imposed at this time, because we have no reason to believe the existing requirements are inadequate, and the Bureau has the authority to collect additional information at any time as needed.   

6.   If the NCQA is going to be the foundation for the rule, it should be done in a faithful manner.  Here are three brief comments on the NCQA.

1.  Transparency – ...  The rule should require that the access standards and annual assessments be open to public inspection. 

Response:  This matter is addressed by statute.  All records in the custody or possession of the Bureau are public records unless they are designated as confidential and fall within one of the exceptions set forth in the definition at 1 M.R.S.A. § 402(3).  Amendment to the definition of “public records” is a legislative power and cannot be done by an administrative agency through rulemaking.  Access plans filed with the Bureau are public documents except to the extent that the carrier asserts and is entitled to confidentiality pursuant to various statutes.  The Bureau notes that 24-A M.R.S.A. § 2694-A requires each insurer implementing or utilizing a physician performance measurement, reporting, or tiering program to provide to the Superintendent annually a statement of the criteria, standards, practice, and procedures governing the program. 

2.  Geographic Access – ...  Rule 850 should include in Section 7(B)(1) the dual requirements on carriers to establish quantifiable and [measurable] standards and to annually analyze performance against those standards for the geographic distribution of primary care providers just as it has such dual requirements for specialty providers in Section 7(B)(2), in order to be consistent with the NCQA guidance. 

Response:  The rule is intended to permit carriers to use appropriate national standards, including but not limited to NCQA standards.  Therefore, it would not be appropriate to codify specific NCQA requirements in detail.  Historically, carriers have maintained adequate networks of primary care providers.

3.  NCQA includes a numeric grading system....  [A] numeric grading system for carrier[s] consistent with NCQA would appear to make sense.

Response:  Carriers are permitted to use numeric grading systems, but this should not be mandatory.

Comment:  The American Cancer Society commented that it is inconsistent with the legislative intent to completely eliminate the standards for geographic and timely access to services, through the removal of Subsection 7(C), and to provide no guidance regarding the incentives that carriers can put in place for using designated providers.  They made four recommendations:

1.   Include specific language in the rule that a carrier may not force a patient to use a designated provider. 

Response:  This has been added as Paragraph 7(D)(5).

2.   Include a specific definition of and standards for allowable incentives. 

Response:  The Bureau has not added a definition but has added a new Subsection 7(D) establishing additional standards for incentives.  

3.   Include a specific definition and standards for “designated provider.”  Alternatively the Bureau could require the criteria to establish designated providers be submitted to the bureau for review and approval, and the criteria should be available for public review.  They also recommended that quality measurements should include the needs of specific special populations such as cancer patients and the need to maintain availability of local providers.

Response:  The Bureau has added a definition for designated provider, but has not accepted recommendations that criteria for designated providers be submitted to the Bureau for review and approval.  The Insurance Code provides adequate legal authority for the Bureau to request this information if needed.    

4.   Insurance carriers should be required to describe how their networks meet the needs of “special needs” patient like cancer patients.

Response:  As discussed below, a provision requiring carriers to address the needs of patients needing coordinated care, frequent services, or other needs that might impede access to care has been added at Paragraph 7(A)(5).

Comment:  Consumers for Affordable Health Care recommended that any access standards set or used by the carriers, and analysis of performance against those standards, should be filed with the Bureau and publically available. 

Response:  All records in the custody or possession of the Bureau are public records unless designated confidential and those records fall within one of the exceptions set out in the definition.  See 1 M.R.S.A. § 402(3).  If, and to the extent that, information included in a carrier’s access plan may be entitled to protection under Maine’s Freedom of Access Act, it is a matter controlled by statute, not by rule.  Therefore, carriers are required to file their access plans with the Bureau and they are generally made available to the public upon request.  However, carriers may have the right under various Maine statutes to assert confidentiality for certain types of information that might be included in the carrier’s access plan.

Comment:  The Maine Primary Care Association recommended placing more emphasis on how plans will monitor NCQA accessibility standards from a quality of care perspective.

Response:  This recommendation has not been accepted because new standards relating to the quality of care would go beyond the scope of the proposed amendments.  If a carrier has implemented a provider profiling program, it is required to comply with the requirements of 24-A M.R.S.A. § 4303(2)(E).  

Subsection 7(A):  Access Plan.  The level of detail required was reduced, consistent with the amendments providing more flexibility in establishing and implementing access standards, and enforcement language specific to this subsection, which could have been interpreted as providing that license suspension or revocation was the exclusive remedy for violations, has also been removed.

Comment:  The Maine Medical Association noted that the proposed amendments to the rule have taken out the penalties for failure to file or implement an access plan.  They recommended putting the penalties back in.

Response:  The amendment removing the enforcement language is adopted as proposed.  It does not remove the Bureau’s enforcement authority over the access plan requirement, but rather makes it consistent with its authority to enforce the other requirements of Rule 850 pursuant to the Bureau’s general enforcement authority under other sections of the Insurance Code, including but not limited to 24-A M.R.S.A. §§ 12-A and 417.

Paragraph 7(A)(2).  As amended and renumbered, Paragraph 7(A)(2) retains the requirement that the access plan include the projected ratio of primary care providers to enrollees by county, but deletes a reference to specialty care.

Comment:  The Maine Medical Association recommended restoring the specialty ratio requirement for high-volume specialties, so that Paragraph 7(A)(2) would read as follows:

The projected ratio of high-volume specialty care and specialty and primary care providers to enrollees by county. 

Comment:  At the hearing Consumers for Affordable Health Care noted that the reference to “specialty” had been removed and suggested putting it back in “because when you look at proposed Section 7(B), sub 2, it ... leaves it to the carrier what that reasonable access is to specialty providers.”  Consumers for Affordable Health Care also submitted written comments that recommended keeping the requirement that carriers provide a description of the provider network including the projected ratio of specialty providers.

Response:  Paragraph 7(A)(2) is adopted as proposed.  The Bureau knows of no independent standard by which to judge the appropriate enrollee-to-specialist ratio, which may vary significantly by specialist.  The Bureau has not historically received consumer complaints about waiting times to get an appointment, and if we were to receive complaints about waiting times for appointments we would need to assess whether the waiting times result from an inadequate network or the overall number of specialists in the service area.  The Bureau has a number of tools, including review of access plans, complaint data, market conduct examinations, and general requests for information to measure if a carrier has an adequate network of specialists. 

Paragraph 7(A)(3).  As amended and renumbered, Paragraph 7(A)(3) establishes the core requirements for carriers’ access standards.

Comment:  The Maine Medical Association commented that reasonable access to services means not only “timely” access to care but also “local” access to care.  They stated that NCQA assesses whether practitioners are located throughout the plans’ service area.  They recommended revising the Rule to require explicitly that all services to covered persons will be accessible “within a reasonable distance of a covered person’s residence.”

Comment:  Consumers for Affordable Health Care suggested that this paragraph be amended so that the word “reasonable” modifies the word “access” in order to ensure that carriers understand that access must be reasonable in terms of time, distance, type of roads, and type and number of providers in their networks.  At the hearing, they noted that reasonable access requires more than “access without unreasonable delay,” and that other variables in addition to time must be taken into consideration.

Response:  The suggestion to add the word “reasonable” is a helpful clarification.  The Bureau agrees that reasonable geographic access is one important component of reasonable access, but believes that specific language specifying standards for distance from a covered person’s residence places undue emphasis on this one factor.  Therefore, Paragraph 7(A)(3) has been revised as set out below.   

d 3)      Written standards for access to basic health care services addressing the requirements of subsections B-F of this section; providing a network that is sufficient in numbers and types of providers to assure that all services to covered persons will be reasonably accessible without unreasonable delay.  Standards must be realistic for the community, the delivery system, and clinical safety.  In establishing these standards, the carrier may incorporate standards published by independent standard-setting organizations and approved by the Superintendent.

Paragraph 7(A)(4).  This paragraph, relating to underserved populations and essential community providers, was proposed to be deleted, but has been restored in response to the following comments.

Comment: The Maine Medical Association noted that proposed amendments strike the requirement for a “description of the carrier’s plan for providing services for rural and underserved populations and for relationships with essential community providers.”

Comment:  At the hearing Consumers for Affordable Health Care commented that “essential community providers” remains in the definitions but not in the body of the rule.  In written comments Consumers for Affordable Health Care recommended preserving the requirement for carriers to provide descriptions of their plans for providing services for rural and underserved populations and for developing relationships with essential community providers.

Comment:  The Maine Primary Care Association recommended that the rule include a requirement that health plans include all primary care essential health providers within the boundaries of the plan, and that the rule incorporate how plans are to meet the NCQA standards for essential health providers and language access.

Response:  The comments are consistent with the ACA’s requirement to give consideration to essential community providers with respect to health plans offered through the exchanges.  Therefore, the Bureau has adopted an amendment to the definition of essential community provider at Subsection 5(Q), to accommodate the federal definition, and has restored Paragraph 7(A)(4), as set out below:

4)         A description of the carrier’s plan for providing services for rural and underserved populations and for developing relationships with essential community providers.

Paragraph 7(A)(5).  This paragraph, added in response to comments, requires a carrier to consider the specialized needs of certain populations when developing its access plan.  Existing Paragraph 7(A)(5), requiring a carrier to include specific provisions to identify and address language and literacy barriers, has been repealed.

Comment:  The American Cancer Society expressed concern about patients being forced to travel extraordinary distance in order to receive preventive and diagnostic cancer screenings (e.g., colonoscopies) or cancer treatment, which could result in lower utilization of those services.  They expressed concern that carriers would be allowed to essentially require patients to do so by making the costs prohibitive to get care closer to home or by not including any local providers in the coverage network.  They expressed concern that for some patients extensive travel may be detrimental.  They expressed concern that patients could be required to use specific providers under the justification of higher quality and lower costs.  They expressed concern that certain providers and facilities (e.g., surgical procedures) could require longer waits for services, which could be of particular concern for cancer patients.  Therefore, they stated that insurance carriers should be required to describe how their networks meet the needs of “special needs” patient like cancer patients.

Comment:  At the hearing the American Physical Therapy Association stated in part:  “In physical therapy we have patients coming to see us multiple time a week in most cases where excessive travel would not only in some cases be impossible but also may be detrimental to their medical condition.”  They stated that for some patients a long drive could actually make their condition worse.  

Response:  The term “special needs” was not used in this provision because it is already a defined term with a somewhat different meaning.  The Bureau has added a requirement at Paragraph 7(A)(5) that a carrier’s access plan consider patients with particular needs:

5)         A description of the carrier’s plan for addressing the needs of patients needing coordinated care, frequent services, or other needs that might impede access to care,

Comment: The Maine Medical Association noted that proposed amendments strike the requirement that carriers provide “a description of the carrier’s strategy to identify and address language and literacy barriers to accessing needed services.”  They recommended this requirement be retained.  They stated that NCQA looks for whether carriers have objectives for serving “culturally and linguistically diverse memberships” (QI 1) and whether a “plan consider[ed] the cultural needs of its member when it created its practitioner network.”  (QI 4) 

Response:  We have not added a requirement establishing detailed standards for carriers to include specific provisions addressing language and literacy barriers in their access plans.  Such provisions could fall within the scope and purpose of new Paragraph 7(A)(5), but are not mandatory.  We note that the ACA includes requirements to address language and culture in counties with significant diverse populations.  In addition, the new final federal regulation for “Summary of Benefits and Coverage and Uniform Glossary” at 45 CFR Part 147 addresses literacy concerns.  

Subsection 7(B): Access to Health Care Providers.  This subsection contains specific network adequacy standards, generally and by provider type.  It has been re-titled to distinguish it from the overall title of Section 7.

Paragraph 7(B)(1):  Primary Care.  This provision currently requires carriers, to the extent reasonably possible, to maintain a minimum ratio of one full-time equivalent primary care provider to 2000 enrollees.  It has been amended to add a requirement to ensure the availability of practitioners who provide primary care services, including general and internal medicine, family practice, and pediatrics.

Comment:  Maine Medical Association supports the 2000/1 ratio for primary care physicians, but suggested adding a number of additional standards based on NCQA requirements.  They noted that some of these requirements would be similar to those that have been adopted for specialty care in new Paragraph 7(B)(2), and stated: “If the Bureau is going to rely on NCQA standards, it should retain at least the level of detail in Rule 850 that NCQA provides.”

Response:  Although NCQA standards are one widely accepted set of access standards, they should not be the only standards carriers may be allowed refer to and rely upon in designing their access plans.  Adopting the NCQA standards in detail would be contrary to the purpose of the provisions allowing carriers to design their own access plans to address local conditions and the specific needs of their own enrollees.  The additional standards in Paragraphs 7(B)(2) and (3) reflect specific concerns with access to specialty care and behavioral health care, which are addressed for primary care through other provisions, including the 2000/1 ratio standard.  Paragraph 7(B)(1) is therefore amended as proposed.

Paragraph 7(B)(2):  Specialty Care (new)

Comment:  At the hearing and in its written comments, Consumers for Affordable Health Care stated that the proposed modifications in § 7(B)(2 & 3) give too much authority to insurance carriers with no guidance from the Bureau as to how many or where specialty providers should be located.

Comment:  At the hearing and in written comments Anthem stated that the definition of high volume specialist goes beyond the NCQA requirements.  Anthem stated in part:  “The requirements for designation of high volume specialists exceed the NCQA requirements.  The NCQA only specifies OB/GYN as high volume specialists; others are to be determined by the carrier.” 

Response:  The requirements for designation of high volume specialists have been retained.  The minimum core specialties specified in this paragraph were based on NCQA standards.  Although they are listed by the NCQA as illustrative examples rather than requirements, it is not unduly burdensome to require carriers to consider and evaluate their enrollees’ need for these specialties, at a minimum, when developing their access plans.  This paragraph does not specify the ratio or number of high volume specialists that must be included, nor does require carriers to apply the same one-size-fits-all standard to each high volume specialty.

Paragraph 7(B)(3):  Behavioral Health Care

Comment: Maine Medical Association recommended expanding the requirements relating to access to behavioral healthcare to more fully reflect the requirements of NCQA guidelines.  They also recommended the standards and analysis be made publically available.

Response:  The Bureau believes the proposed requirements (based on NCQA language) provide adequate guidance and appropriate flexibility for designing access plans.  Further, NCQA standards are not the only standards carriers can refer to and rely upon in designing their access plans under this rule.  Pursuant to 2011 Resolve Chapter 150, the requirement has been clarified to specify explicitly that carriers must ensure the reasonable availability of behavioral health care practitioners.  Paragraph 7(B)(3) is otherwise adopted as proposed, with a typographical error corrected.

Comment:  Maine Medical Association stated:  “Maine has a longstanding commitment to integrating behavioral and physical health care and not treating them as distinct types of medical care....  In light of that goal and the language and history of Chapter 90, this Section should not have separate standards for ‘health care’ and ‘behavior healthcare.’  Instead, both should be measured against the same standards of access within 6 hours for care for non-life-threatening emergencies, 48 hours for urgent care and 10 business days for routine office visits.  In addition, the analysis of performance against such a standard should be made publicly available.” 

Response:  The standards in this paragraph are based on NCQA behavioral health access standards which derive from historical concerns about access to these services.  Historically, maintaining adequate networks of primary care providers and other types of specialists has been less problematic.  Consistent with NCQA or other appropriate access standards, carriers are free to integrate behavioral and physical health care and are not required to treat them as distinct types of medical care.  In addition behavioral health services are subject to the same standards as other types of health care services pursuant to new Subparagraph 7(D)(1)(a), which requires carriers to provide and maintain a provider network that is sufficient in numbers and types of providers to assure that all services to covered persons will be reasonably accessible without unreasonable delay.

Paragraph 7(B)(4).  This paragraph, formerly numbered 7(B)(2), requires access to emergency and urgent services.

Comment:  At the hearing and in written comments Anthem recommended the distinction between urgent care and emergency care be clarified.  Anthem stated that for Anthem’s members urgent care is often the type of treatment that can be obtained at a walk-in center, a more immediate need than a visit to a primary care provider but not warranting a visit to the emergency room.  Anthem recommended revising the definitions to draw a clearer distinction between Urgent Care Services and Emergency Care.  They also proposed amendments to Paragraph 7(B)(4) which would require:  “Carriers that offer managed care plans must provide coverage enabling enrollee access to medically necessary emergency and urgent services at all times.  Primary care and, to the extent reasonably possible, specialty physician services shall be available and accessible twenty four hours a day, seven days a week within the managed care plan’s service area.       

Response:  This provision was not intended to require 24-hour access to non-emergency “urgent care” facilities, which often have more limited evening hours.  Paragraph 7(B)(4) has therefore been amended as set out below:

4)         Carriers that offer managed care plans must provide coverage enabling enrollee access to medically necessary emergency and urgent services at all times, and access to urgent services.  Primary care and, to the extent reasonably possible, specialty physician services shall be available and accessible twenty four hours a day, seven days a week within the managed care plan’s service area.
           
Paragraph 7(B)(5).  This provision is substantially identical to the provision in the NAIC Managed Care Network Adequacy Model Act ensuring that enrollees have access to care in the manner promised in their contract if a network provider is unavailable due to circumstances beyond the enrollee’s control.  If, as a result of the unavailability of timely access to network services, the carrier refers the enrollee to a nonparticipating provider or fails to make a referral, the carrier must protect the enrollee against balance billing.

Comment:  At the hearing the Maine Association of Health Plans recommended either eliminating the requirement to pay charges in the case of an inadequate network or limiting the reimbursement rate to the typical market rate.  In addition, the Maine Association of Health plans submitted written comments regarding the requirement to pay charges, stating in part: 

Under the current rule 850, specialists and hospitals have used that leverage to garner excessively high payments from carriers.  For many years carriers have raised concerns about the requirement that charges must be paid in cases [where] providers do not contract with health plans.  This requirement is particularly problematic in certain specialty care areas where there is minimal or no competition in the marketplace.  In some cases, pediatric cardiology for example, practitioners declined to contract with the health plans and therefore, under the old 850 requirements, were paid charges, not negotiated rates. 

In addition, carriers have struggled with cases where they were forced to pay charges, higher than typical carrier payment rates, to providers with whom they had declined to contract for quality or credentialing reasons.  To address these market problems we propose an additional change to 850 not contemplated in the Bureau’s proposal.  We urge the Bureau to consider either eliminating the requirement to pay charges to out of network providers or adding language to the rule that would protect carriers from being over charged and require only reimbursement at the typical market rate.  Further, carriers should be able to direct members to other in-network providers without compromising quality.    

Comment:Aetna recommended eliminating the requirement to pay charges to out of network providers and instead allow for reimbursement in such cases at the defined out of network rate of the policy. 

Comment:  At the hearing Anthem stated that they would prefer to see this requirement stricken or its application limited to primary care or high volume specialists.  In addition Anthem recommended that if a consumer elects to obtain services out-of-state because the local network is inadequate Anthem should be permitted to require consumers to see one of Anthem’s participating out of state providers.  In addition, Anthem submitted written comments stating that this paragraph has provided certain providers with disproportionate bargaining power and has enabled them to either (1) demand reimbursement arrangements that are higher than are commercially reasonable or (2) forgo being in our network altogether, enabling them to be reimbursed on a charge basis.  Anthem recommended this provision be eliminated from the Rule entirely.  If it is not repealed, Anthem proposed three possible alternatives:

1.   Apply this requirement only to primary care physicians (PCPs) and high volume specialists.

2.   Allow carriers to use a national network to meet the network adequacy requirements if a provider of a covered benefit is not available within Maine but is available elsewhere in the national network.

3.   Limit reimbursement under this provision to the carrier’s “usual and customary rate” based on market-specific payment levels or the applicable Medicaid or Medicare reimbursement rate. 

Comments:  At the hearing the American Physical Therapy Association commented there are no carriers in Maine that they are aware of that have procedures or standards for tiering physical therapy providers, and to their networks typically consist of therapists who are willing to take deeply discounted rates.  They stated that physical therapists do not tend to charge fees outside of what is reasonable.  They expressed concern that if the requirements to pay out-of-network providers is removed and there are no in-network providers accessible, patients will not have reasonable access to the benefits they have paid for.  They expressed concern that if carriers are permitted to reimburse at market rate or UCR when the carrier’s network is inadequate and carriers are allow to determine what that market rate is, then carriers might define the market rate as whatever the rate is for the carrier’s contracted providers (the rate therapists couldn’t afford to take in the first place).

Response:  Paragraph 7(B)(5), copied below for reference, does not require a managed care plan to accept unqualified providers or providers who bill at above-market rates.  It only requires that if the plan refers a patient to a nonparticipating provider, the patient must not be subject to additional out-of-pocket costs as a result.  This NAIC Model language provides an important consumer protection against gaps in network coverage.  Therefore, it is retained as proposed.

5)         In any case where the carrier has an insufficient number or type of participating providers to provide a covered benefit, the health carrier shall ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the benefit were obtained from participating providers, or shall make other arrangements acceptable to the Superintendent.

Subsection 7(C) (repealed):  Geographic Accessibility.  This subsection established detailed geographic access standards applicable to all carriers.  It was repealed in response to the repeal of the underlying rulemaking requirement by Chapter 90, and was replaced by provisions requiring each carrier to include appropriate network adequacy standards in its access plan.

Comment:  Maine Medical Association stated that the legislature intended only to allow insurance carriers additional flexibility in designing products that include incentives to travel to designated providers.  They stated the legislature intended to make it easier to qualify for exceptions, not to eliminate the actual underlying geographic access requirement.  Therefore, Maine Medical Association recommended:  “To carry out this intent, Sections 7(C)(1) and (2) should remain –specifying primary care access within 30 minutes travel time and specialty care or hospital service within 60 minutes....  Once sufficient geographic access standards are in place, as the legislature intended, carriers can then have added flexibility to design incentives to travel beyond these distances, if enrollees so choose.”  Maine Medical Association further stated, in part, that “there is nothing in the language of Chapter 90 that changes, nor was there any discussion in the legislature suggesting an intent to change, the standards for timely access to care found in Rule 850.

Comment:  Consumers for Affordable Health Care commented that there is no explicit or implicit language in Chapter 90 suggesting the repeal of Subsection 7(C).  They recommended that the Bureau restore Subsection 7(C) in its entirety and require carriers to develop standards and measures for Bureau approval that meet the standards found in Subsection 7(C) or justify exceptions to those standards and state their method for mitigating any potential impact to enrollees.  If a carrier chooses to file exceptions to those standards and plans to mitigate the impact on enrollees, the standards would act as a guide for the carrier seeking approval. 

Response:  The suggestions to retain current access requirements have not been accepted.  The Bureau believes the adopted amendments provide both flexibility and consumer protection, consistent with the Legislature’s intent.  These standards may be revisited in the future if experience demonstrates that further changes are required.

Subsection 7(C):  Timely Access to Health Care Services.  This subsection, formerly numbered 7(D), has been amended to reduce the level of detail, specifying instead the items that the carrier’s procedures must satisfactorily address in order to ensure timely availability of services.

Comment:  Anthem stated:  “Requiring that the carrier perform an annual analysis of timely access to health care,” as required by the amendments to Paragraph 7(C)(1), “will be extremely time intensive and expensive.  Today we monitor this through the CAHPS survey results as well as monthly review of complaints.  This is permissible under the NCQA requirements and would be less burdensome and costly.”

Response:  The NCQA guidelines permit use of these data sources in completing the analysis. Also, we emphasize again that carriers may refer to standards other than NCQA in developing their access plans.

Comment:  The American Cancer Society expressed concern about the particular access issues facing cancer patients, as discussed more fully in the comments to new Paragraph 7(A)(5). 

Response:  In addition to the general access standards that have been added in this subsection, new Paragraph 7(A)(5) specifically requires carriers to address the needs of patients needing coordinated care, frequent services, or other needs that might impede access to care.

Subsection 7(D):  Incentives to Use Providers That Have Been Designated on the Basis of Cost or Quality.  This subsection has been added in response to comments requesting further clarification of the language in 24-A M.R.S.A. § 4301(1), enacted by Chapter 90, providing that “A carrier may provide incentives to members to use designated providers based on cost or quality, but may not require members to use designated providers of health care services.”

Comment:  Consumers for Affordable Health Care expressed concern (under the heading “Failure to Define ‘Designated Providers’”) that carriers could avoid contracting with or reimbursing services provided by certain providers, and recommended requiring carriers to disclose and justify their methods and criteria for choosing and contracting with or reimbursing for the services of providers.

Response:  When existing laws relating to credentialing, tiering, or provider profiling are triggered, carriers must comply with those standards, and language has been added at Paragraph 7(D)(4) clarifying this obligation.  No evidence has been provided that new standards in this area are necessary.  Carriers should also have the flexibility to develop incentive programs that do not trigger these concerns.

Comments:  The Bureau received several comments expressing concern that the rule does not expressly require an adequate network.

Response:  Paragraph 7(A)(3), as amended, expressly requires a carrier to maintain “a network that is sufficient in numbers and types of providers to assure that all services to covered persons will be reasonably accessible without unreasonable delay.”  Additional network adequacy standards are found throughout Section 7.  There are also statutory requirements such as those in the Maine Preferred Provider Act, at 24-A M.R.S.A. § 2672, which provides that “The superintendent shall disapprove any preferred provider arrangement if the arrangement contains any unjust, unfair or inequitable provisions [or] unreasonably restricts access and availability of health care services.”  Language has been added in new Paragraph 7(D)(4) clarifying that carriers offering incentives to use designated providers must continue to comply with all of these requirements, and any other legal requirements applicable to the types of incentives they use.

Comment:  Maine Medical Association recommended that the final rules include a description of what an “incentive” can be and “retain the language currently found in Section 7(C)(3) clarifying that ‘any financial incentive to encourage a member to utilize a service of a designated ... provider must be an additional benefit for using the designated provider.  A carrier may not reduce the benefits otherwise applicable on the ground that services were provided by a provider who is not a designated ... provider.’”

Response:  Former Subparagraph 7(C)(3)(b) expressly required incentives to be additional benefits, rather than penalties, and this language has been restored as part of new Paragraph 7(D)(1).  New Paragraph 7(D)(3) clarifies that such incentives could include, but are not limited to, waivers of coinsurance or copayments, waivers of deductibles, travel expenses or other incentives to make it convenient to use designated providers.  The Bureau has not adopted limits on what types of incentives can be offered to use designated providers.  In particular, neither the statute nor the rule requires incentives to be related to the dollar amount of a health plan’s cost sharing provisions, which could vary considerably from plan to plan.

Comment:  The MMA recommended that the Bureau limit the ability of carriers to designate emergency or urgent care providers, or provide incentives for members to travel to obtain emergency or urgent care, and suggested modeling the language on current Subparagraph 7(C)(3)(c). 

Response:  The ACA and 24-A M.R.S.A. § 4320-C require parallel cost sharing for in-network and out-of-network emergency services.  New Paragraph 7(D)(2) has been added, expressly prohibiting incentives for using designated emergency care facilities.

Comment:  Consumers for Affordable Health Care requested more specificity about incentives to use designated providers.  They expressed concern about leaving “quantifiable and measurable standards” up to the carriers, and suggested that carriers have not taken advantage of existing opportunities to offer incentives under pilot programs.

Comment:  The Maine Medical Association (MMA) made the following recommendations:

  • The rule should parallel the statute in stating that only cost and/or quality can be used to designate providers.

 

Response:  Language incorporating the statutory standard in 24-A M.R.S.A. § 4303(1) has been incorporated into the rule at Paragraph 7(D)(1).

  • The rule should require that carriers disclose to providers if cost or quality or both are being used to designate providers and to disclose the date and methodologies that are being used as a basis for the designation.

 

  • The rule should state that providers have the ability to request an explanation of why they did not qualify as a designated provider and what they must do in order to qualify.  Designations should be updated on a regular basis, at least every six months.  The MMA suggests that some of this language can be drawn from the current language in Clauses 7(C)(3)(f)(ii) and (iii) of the rule.

Response:  Those standards related to a specific program, whose statutory authority has been repealed.  Language has been added to clarify that if a carrier uses a provider profiling program, it must comply with all applicable requirements.  However, carriers should have the flexibility to structure their incentives in a variety of ways, as long as basic safeguards are followed.

  • Transparency for enrollees.  MMA recommended that the Bureau “maintain Section 7(C)(3)(i) of the Rule, currently proposed for deletion, which requires that carriers ‘create a directory of designated ... providers under the plan, and the directory must be made available to any prospective applicant or covered member under the plan.’  In addition, the basis for designating providers (cost and/or quality) and data and mechanisms used to designate providers should be made available not only to providers, but to all prospective applicants and covered members.  Consumers should also be informed of any implications of traveling for care, including who will bear travel expenses, lodging and meal expenses, and should have the opportunity to switch providers should their provider lose designated status.”

 

Response:  As discussed previously, existing Paragraph 7(C)(3), which has been repealed as proposed, provides detailed standards for one particular type of incentive program, whose statutory authority has been repealed.  Carriers have been given the flexibility under Chapter 90 to offer a wide range of incentive programs.

Response:  In response to several recommendations to address incentives to use designated providers and include express requirements for carriers to maintain adequate networks, the Bureau has adopted the following amendments to be included as Subsection 7(D) of the Rule.

D.        Incentives to Use Providers That Have Been Designated on the Basis of Cost or Quality

1)         Carriers may offer enrollees incentives to use designated providers who have been selected on the basis of cost or quality.  Any financial incentive to encourage enrollees to use specific providers designated on the basis of cost or quality must be an additional benefit to benefits otherwise provided under the plan.

2)         The carrier may not offer a financial incentive to obtain emergency services from a specific designated emergency services provider.

3)         Financial incentives may include, but are not limited to, waiver of copayments or coinsurance, waiver of deductibles, or travel expenses.

4)         Nothing in this subsection may be construed as superseding any applicable requirements relating to network adequacy, tiering programs, profiling programs, credentialing, or other laws regulating the administration of managed care plans.

5)         Carriers may not require enrollees to use designated providers as a condition of receiving benefits under the plan.

Sections 8 through 10.  Appeal and grievance requirements.  Existing Sections 8 and 9 are entitled “Utilization Review” and “Grievance Procedures.”  Their organization reflects a history that predates the Maine Health Plan Improvement Act.  As the rule and the Health Plan Improvement Act have subsequently been amended, the concept of “adverse health care treatment decision,” a term that was added to the statute in 2000 when the external review provisions were enacted, has become more relevant for most purposes than the concept of “utilization review.”  The proposed amendments therefore reorganized the appeal and grievance provisions so that Section 8 would address adverse health care treatment decisions while Section 9 would apply more generally to an insurer’s grievance process.  Both sections were also updated to reflect recent amendments to the Health Plan Improvement Act and the requirements of the Affordable Care Act and its implementing regulations.

The comments received, however, demonstrate that the proposed reorganization, while it was a step in the right direction, did not fully clarify the distinctions between the two types of adverse determinations and the differences in the applicable procedures.  The Bureau has therefore made several additional changes throughout the rule to clarify which requirements apply only to “medical” determinations (health care treatment decisions), which requirements apply only to non-medical issues, and which apply to both medical and non-medical adverse benefit determinations.  As a result of these non-substantive changes, Section 8 now only addresses medical issues, Section 9 only addresses non-medical issues, and the general provisions in former Subsections 9(A) and 9(B) have been moved to a separate Section 10, entitled “Grievance Register and Procedures.”

Section 8:  Adverse Health Care Treatment Decisions.  

Comment:  At the hearing the Maine Association of Health Plans expressed support for the proposed changes to the appeal and grievance standards.  

Comment:  At the hearing Anthem commented there are inconsistencies between the definition of adverse benefit determination and adverse health care treatment decision.  Anthem stated that an adverse benefit determination seems to include adverse health care treatment decision, which seems to be somewhat inconsistent if the intent is to lay out parallel or slightly different processes for them.    

Comments:  At the hearing the American Physical Therapy Association recommended the rule should be consistent with federal rules for claims processing and external appeals.  They recommended that the differences between the terms appeal, grievance, adverse health care treatment decision, and adverse benefit determination be clarified because they are confusing.

Response:  The Bureau received several comments recommending that these terms be clarified.  The reason many of the changes to Sections 8 and 9 were proposed is that these terms have been a source of confusion.  In response to the comments received, the Bureau has adopted additional clarifying language in several provisions of the rule. 

Subsection 8(D):  Operational Requirements

Comments:  At the hearing the American Physical Therapy Association recommended adding at the end of the last sentence in Paragraph 8(D)(1) a requirement that “the carrier’s designated utilization review entity shall also be required to make its clinical review criteria available to providers in advance,” because some of the carriers in the provider organizations are inserting into their provider agreements that the providers have to comply with their utilization review criteria, without giving the criteria to the therapist in advance.  The Physical Therapy Association stated that care is occasionally denied or delayed because the therapist did not know what the criteria were, and therefore did not perform the required test or document the findings that were required for the authorization to be given, and the therapist cannot comply without knowing what the requirements are.

Response:  Because this paragraph relates to regulatory oversight rather than to public access, the requested amendment is not adopted.  It should be noted that the Maine Health Plan Improvement Act, at 24-A M.R.S.A. § 4303(9), already requires carriers to give notice to providers when any changes substantially affecting a provider’s rights and obligations are made to manuals, policies, and procedures that are incorporated by reference into the provider contract.

Subsection 8(E):  Procedures for Review Decisions.  The amendments to this subsection were primarily technical in nature, with the exception of Paragraph 8(E)(5), which provides the standards for written notices of adverse actions.  The existing language makes this paragraph applicable to “adverse determinations,” which the proposed amendments would have changed to “adverse benefit determinations.”  This would have been inconsistent with the organization of the amended rule, under which the scope of Section 8 is limited to adverse health care treatment decisions.  Therefore, this paragraph has been revised to refer to “adverse health care treatment decisions,” and similar requirements for other adverse benefit determinations have been added to Section 9, as discussed later.

One of the primary purposes of these amendments is to assimilate state and federal appeal and grievance procedures in a manner accessible to consumers, providers, carriers, and the public.  Accordingly, the written notice requirements have been updated to conform to the requirements of the ACA and the Maine Health Plan Improvement Act.  Recently enacted state law requirements include 24-A M.R.S.A. § 4303(13), which provides standards requiring “clear written explanations of benefit documents in response to the filing of any claim providing for coverage of hospital or medical expenses.”  In particular, 24-A M.R.S.A. § 4303(13)(G) requires “A notice of the right to file a complaint with the bureau after exhausting any appeals under a carrier’s internal appeals process.”  Therefore, the Bureau has added the following requirement for notices of adverse health care treatment decisions at Subparagraph 8(E)(5)(k), and a similar requirement for notice of non-medical adverse benefit determinations at Paragraph 9(A)(6): “notice of the right to file a complaint with the Bureau of Insurance after exhausting any appeals under a carrier’s internal appeals process.  In addition, an explanation of benefits (EOB) must comply with the requirements of 24-A M.R.S.A. § 4303(13) and any rules adopted pursuant thereto.”

Comments:  At the hearing the American Physical Therapy Association commented that providers are having a problem with some of the carriers and utilization review entities saying they don’t have enough information but not advising what information they need so they can approve a claim or approve visits for physical therapy. 

Response:  New requirements at Subparagraph 8(E)(5)(d) (for medical decisions) and Paragraph 9(A)(4) (for non-medical decisions), added to reflect federal requirements under the ACA, provide that written notifications of adverse benefit determinations shall include “a description of any additional material or information necessary for the covered person to perfect the claim and an explanation as to why such information is necessary.” 

Comments:  At the hearing the American Physical Therapy Association commented that Paragraph 8(E)(5) should also include the requirement to provide an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the claimant’s medical circumstances or state that such explanation will be provided free of charge.

Response:  Pursuant to the ACA, adverse benefit determinations must comply with 29 CFR § 2560.503-1(g)(B), which provides:  “If the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, [the notice must include] either an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request.”  This requirement has been added as Subparagraph (8)(E)(5)(f).

The adopted amendments to Paragraph 8(E)(5), as revised, are set out below:

5)         A health carrier shall provide written notification of an any adverse benefit determination health care treatment decision, which shall include:

a)         the principal reasons or reasons for the determination, decision;

b)         reference to the specific plan provisions on which the decision is based;

c)         information sufficient to identify the claim involved (including the date of service, the health care provider, and the claim amount if applicable), and a statement that the diagnosis code and its corresponding meaning, and the treatment code and its corresponding meaning, will be provided upon request;

d)         a description of any additional material or information necessary for the covered person to perfect the claim and an explanation as to why such material or information is necessary;

e)         the instructions and time limits for initiating an appeal or reconsideration of the determination decision;

f)         and the instructions for requesting, free of charge, a written statement of the clinical rationale, including the clinical review criteria used to make the determination. decision if the adverse health care treatment decision is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the decision, applying the terms of the plan to the claimant’s medical circumstances, or a statement that such an explanation will be provided free of charge upon request;

g)         If if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse benefit determination health care treatment decision, either the specific rule, guideline, protocol, or other similar criterion; or a statement referring to the rule, guideline, protocol, or other similar criterion that was relied upon in making the adverse determination decision and explaining that a copy will be provided free of charge to the covered person upon request.;

h)         The notification must include a phone number the covered person may call for information on and assistance with initiating an appeal or reconsideration and/or requesting clinical rationale and review criteria;

i)          a description of the expedited review process applicable to claims involving urgent care; and

j)          the availability of any applicable office of health insurance consumer assistance or ombudsman established under the federal Affordable Care Act;

k)         notice of the right to file a complaint with the Bureau of Insurance after exhausting any appeals under a carrier’s internal review process.  In addition, an explanation of benefits (EOB) must comply with the requirements of 24-A M.R.S.A. § 4303(13) and any rules adopted pursuant thereto; and

l)          any other information required pursuant to the federal Affordable Care Act.

Subparagraph 8(E)(5)(j)

Comment:  Consumers for Affordable Health Care stated the written notification of an adverse benefit determination should also include a toll-free phone number for the state designated consumer assistance program established under the ACA.

Response:  This requirement has been amended to require the inclusion of toll-free numbers when available.   

Subsection 8(F):  Requests for Reconsideration.  No substantive amendments were proposed to this subsection, but it has been updated to reflect changes in terminology and technology.

Comment:  Martin’s Point recommended amending Paragraph 8(F)(1) by adding language indicating that reconsiderations are allowed when the provider rendering the service provides additional clinical information that was not available when the initial decision was made.

Comment:  Martin’s Point recommended amending Paragraph 8(F)(2) by adding language requiring the reconsideration to occur within one calendar day after the receipt of the request and the additional clinical information. 

Comment:  Aetna expressed concerns about any requirements that go beyond the requirements of the ACA as this increases complexities and administrative expenses.

Response:  Based upon the experience of Bureau staff in assisting consumers, we believe the reconsideration requirement has proven very useful and effective in resolving medical issues, without resort to formal appeals.  The reconsideration process effectively opens a dialogue between the enrollee’s provider and the carrier’s clinical peer.  Therefore, Subsection 8(F) is adopted as proposed.

Subparagraph 8(G)(1)(a)(i)

Comment:  At the hearing Anthem commented that it is not clear what is meant by “internal claims process.”  Anthem’s written comments recommended amending this section to read:  “The carrier must allow the covered person to review the claim file and to present evidence and testimony as part of the internal claim and appeal process.”  Anthem recommended that if the reference to the internal claim and appeal process is retained, then clarification is required regarding what is meant by “claim process” and how the requirement may be satisfied.  Also, Anthem asked: “how will the requirement to ’allow the covered person to review the claim file’ be satisfied?”  Anthem also asked whether it is sufficient to include language advising a covered person of the right to review the claim file and present evidence and testimony in the appeal acknowledgement letter?  Anthem also stated that a member is currently not entitled to present testimony until the second level of appeal and suggested the rule be amended accordingly.

Response:  This recommendation has been accepted as set out below.

i)          The carrier must allow the covered person to review the claim file and to present evidence and testimony as part of the internal claims and appeals process.

Clauses 8(G)(1)(A)(ii) and (iii).  These provisions require the carrier to give the covered person notice and an opportunity to respond if a new or additional rationale is being or has been considered in deciding the appeal.

Comment:  Anthem stated that there have been varying interpretations of this provision and guidance regarding what the Bureau considers to be “new or additional rationale” would be helpful.

Response:  Anthem did not explain what varying interpretations have been offered.  If in doubt, carriers should err on the side of transparency.

Clauses 8(G)(1)(c)(x) and 9(B)(2)(b)(x)

Comment:  The Maine Association of Health Plans stated:  “Although alignment with the ACA is critical, there is danger in tying specific language to other federal standards.  For example, the proposed rule contains a reference to a Department of Labor definition that is already irrelevant.  Maine should retain sufficient flexibility to ensure that this rule is not tied to standards that may quickly become outdated.

Response:  The Bureau has taken the need for flexibility into consideration, and, in particular, has not adopted the proposed provisions that would have spelled out specific verbiage that must be included in all notices of adverse first-level appeal and grievance decisions.  These provisions have been revised as follows:

x)         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 local U.S. DOL Office and your State insurance regulatory agency.”  Any other information required pursuant to the federal Affordable Care Act.

Subsection 8(G-1):  Second Level Appeals of Adverse Health Care Treatment Decisions

Comment:  Anthem commented:  “Currently the Maine appeal process has a mandatory first level appeal and a voluntary second appeal.  A covered person can elect to bypass the second level and file an external appeal through the BOI, if applicable.  However, this section indicates that ‘A health carrier that subjects benefit decisions to utilization review or offers managed care plans shall provide the opportunity for a second level appeal ....’  The provision only mentions the opportunity to bypass the second level in the following statement:  ‘Persons covered under individual plans must be notified of the right to request an external review without exhausting the carrier’s second level appeal process.’  Because it only refers to individual plans, this could be read as requiring two mandatory levels of internal plan appeal for members who are not enrolled in individual plans, which would seem inconsistent with the intent of the ACA.”

 

Response:  As Anthem’s uses the terms, a “mandatory” appeal process is one that the covered person must exhaust before proceeding to external review.  A “voluntary” appeal is one that the carrier offers to the covered person, but does not require.  The distinction the rule makes between individual and group plans comes directly from the external review statute, and is also required by the ACA.  24-A M.R.S.A. § 4312(1) requires the second-level appeal to be voluntary for individual health plans, but permits carriers to offer mandatory second-level appeals for group plans.  However, the Maine Health Plan Improvement Act, at 24-A M.R.S.A. § 4312(2), expressly permits the carrier and the enrollee to mutually agree to bypass the internal grievance procedure and proceed directly to external review.  Thus, carriers are free to offer a voluntary second-level appeal to group plan enrollees.  To clarify that point, Paragraph 8(G-1)(1) has been revised as set out below:

1)         A health carrier that subjects benefit decisions to utilization review or offers managed care plans shall provide the opportunity for a second level appeal to covered persons who are dissatisfied with a first level appeal decision.  The covered person requesting a second level appeal has the right to appear in person before authorized representatives of the health carrier, and shall be provided adequate notice of that option by the carrier.  Persons covered under individual health insurance plans must be notified of the right to request an external review without exhausting the carrier’s second level appeal process.  The same notice may be given to persons covered under group plans if the carrier permits them to bypass the second level of appeal.  The health carrier’s designated URE may fulfill the requirements of this subsection on the carrier’s behalf, except that a person covered under an HMO plan may exercise his or her right to pursue the appeal directly to the HMO.

 
Paragraph 8(G-1)(3)

Comment:  Anthem recommended that the Bureau consider including a provision describing the timeframe for completing a second level appeal for which the covered person has not requested to appear before authorized representatives of the health carrier. 

Response:  24-A M.R.S.A. § 4303(4)(A)(2) requires the grievance procedure to include: (2) Timelines within which grievances must be processed, including expedited processing for exigent circumstances.  Timelines must be sufficiently expeditious to resolve grievances promptly.  Decisions for second level grievance reviews as defined by bureau rules must be issued within 30 calendar days if the insured has not requested the opportunity to appear in person before authorized representatives of the health carrier;

Section 9:  Adverse Benefit Determinations not Involving Health Care Treatment Decisions.  This section was formerly titled “Grievance Procedure.”  Existing Section 9 includes both provisions governing grievances in general, whether or not they implicate medical issues, and provisions specifically governing those grievances that are not subject to Section 8 because they do not implicate medical issues.  The comments indicated that this organization had led to confusion.  Therefore, the general provisions have been moved to a new Section 10, and the scope of Section 9 is now restricted to those adverse benefit determinations that do not involve adverse health care treatment decisions.

Subsection 9(A):  Notice of Adverse Benefit Determinations Not Involving Health Care Treatment Decisions.  Because Section 8 as adopted applies only to medical determinations, this new subsection has been added to codify the initial notice requirements, incorporating the new requirements of the ACA.  It is based on Paragraph 8(E)(5), removing language applicable only to medical determinations, and reads as follows:
 
A.        Notice of Adverse Benefit Determinations not Involving Health Care Treatment Decisions

Adverse benefit determinations involving medical issues (adverse health care treatment decisions) are subject to the written notice requirements of paragraph 8(E)(5).  For any adverse benefit determination that does not involve medical issues, the carrier shall provide written notice that includes the information required below:   

1)         the principal reason or reasons for the determination;

2)         reference to the specific plan provisions on which the determination is based;

3)         information sufficient to identify the claim involved (including the date of service, the health care provider, and the claim amount if applicable), and a statement that the diagnosis code and its corresponding meaning, and the treatment code and its corresponding meaning, will be provided upon request;

4)         a description of any additional material or information necessary for the covered person to perfect the claim and an explanation as to why such material or information is necessary;

5)         the instructions and time limits for initiating an appeal or reconsideration of the determination;

6)         notice of the right to file a complaint with the Bureau of Insurance after exhausting any appeals under a carrier’s internal review process.  In addition, an explanation of benefits (EOB) must comply with the requirements of 24-A M.R.S.A. § 4303(13) and any rules adopted pursuant thereto. 

7)         if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse benefit determination, either the specific rule, guideline, protocol, or other similar criterion; or a statement referring to the rule, guideline, protocol, or other similar criterion that was relied upon in making the adverse determination and explaining that a copy will be provided free of charge to the covered person upon request;

8)         a phone number the covered person may call for information on and assistance with initiating an appeal or reconsideration or requesting review criteria;

9)         a description of the expedited review process applicable to claims involving urgent care;

10)       the availability of any applicable office of health insurance consumer assistance or ombudsman established under the federal Affordable Care Act; and

11)       any other information required pursuant to the federal Affordable Care Act.

Paragraph 9(B)(1) (formerly numbered 9(C)(1))

Comment: Anthem recommended amending this paragraph to read: “A grievance concerning any matter an adverse benefit determination may be submitted by a covered person or a covered person’s representative.  Review of a grievance regarding an adverse benefit determination is subject to the subsection and subsection [C] of this section.”

Response:  The enrollee’s right to file a grievance should not be restricted.  Therefore, this paragraph is adopted as proposed, with the cross-reference updated to reflect the renumbering of former Subsection 9(D).

Paragraph 9(C)(1) (formerly numbered 9(D)(1)

Comment:  Anthem stated:  “This section requires a carrier to provide a second level grievance review process.  This should be amended to refer to a voluntary second level grievance process.”

Response:  The external review process under 24-A M.R.S.A. § 4312 and the private cause of action under 24-A M.R.S.A. § 4313 apply only to health care treatment decisions.  Therefore, the second level grievance process provides an essential consumer protection for non-medical adverse benefit determinations, which are the subject of this provision.  Paragraph 9(C)(1) is therefore adopted as proposed.

Paragraph 9(C)(3) (formerly numbered 9(D)(3)

Comment:  Anthem inquired whether this section should include a provision for the timeframe for completing a second level appeal for which the covered person has not requested to appear before authorized representatives of the health carrier.

Response:  24-A M.R.S.A. § 4303(4)(A)(2) provides timelines within which grievances must be processed, including expedited processing for exigent circumstances.  Timelines must be sufficiently expeditious to resolve grievances promptly.  Decisions for second level grievance reviews as defined by bureau rules must be issued within 30 calendar days if the insured has not requested the opportunity to appear in person before authorized representatives of the health carrier.

Section 11.  Reporting Requirements.  The only proposed amendments to this section were stylistic corrections.  This section is currently Section 10, but has been renumbered due to the adoption of the new Section 10.  No comments were received relating to this section, which is otherwise adopted as proposed.

Section 12.  Effective Date.  In the existing rule, the effective date provision appears in Subsection 4(A).  Obsolete transition language has been replaced by a new section, placed at the end of the rule consistent with standard practice, which will provide that the 2012 amendments take effect 30 days after the finally-adopted rule is filed with the Secretary of State.  This section was proposed as Section 11, but has been renumbered due to the adoption of the new Section 10.  No comments were received relating to this section, which is otherwise adopted as proposed.

Last Updated: September 27, 2010