Oregon State Archives

Oregon Bulletin

August 1, 2011

Department of Consumer and Business Services,
Insurance Division
Chapter 836

Rule Caption: Adoption of Rules to Implement Children’s Reinsurance Program.

Adm. Order No.: ID 10-2011

Filed with Sec. of State: 7-5-2011

Certified to be Effective: 7-5-11

Notice Publication Date: 6-1-2011

Rules Adopted: 836-100-0011, 836-100-0016, 836-100-0025, 836-100-0030, 836-100-0035, 836-100-0040, 836-100-0045

Rules Repealed: 836-100-0015

Rules Ren. & Amend: 836-100-0010 to 836-100-0020

Subject: This rulemaking establishes a Children’s Reinsurance Program to promote health insurance coverage of children under the age of 19 in Oregon. This program would spread the risk of enrolling high-risk children in the commercial individual market on a guaranteed issue basis with no pre-existing condition exclusion period as now required under federal law. The rules establish the requirements and procedures for a carrier to cede coverage for a child under the age of 19 to the Children’s Reinsurance Program.

Rules Coordinator: Sue Munson—(503) 947-7272

836-100-0011

Purpose and Statutory Authority

(1) The purpose of OAR 836-100-0011 to 836-100-0045 is to assure that children have affordable health care coverage options in Oregon’s individual health insurance market and the Healthy KidsConnect program with guaranteed issue and no pre-existing condition period through the establishment of a Children’s Reinsurance Program.

(2) OAR 836-100-0011 to 836-100-0045 are adopted pursuant to the authority of the Department of Consumer and Business Services under ORS 731.244 to carry out the purposes of ORS 743.731 and chapter 131, Oregon Laws 2011 (Enrolled Senate Bill 514) to encourage the availability of individual health benefit plans and Healthy KidsConnect coverage for individuals under the age of 19 who are not enrolled in employer-sponsored group health plans.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0016

Definitions

As used in OAR 836-100-0011 to 836-100-0045:

(1) “Applicant” means a child under the age of 19 or the parent or adult representative of a child who is applying for coverage under an individual health benefit plan or under a Healthy KidsConnect health benefit plan, either as a child-only or as a member of a family policy.

(2) “Carrier” means an insurance company or health care service contractor holding a valid certificate of authority from the Director of the Department of Consumer and Business Services that authorizes the transaction of health insurance.

(3) “Claim” includes a request for payment under the terms of an individual health benefit plan or under a Healthy KidsConnect health benefit plan, or the costs of utilization or for an encounter between a provider and a child covered by the Children’s Reinsurance Program.

(4) “DCBS” or “department” means the Department of Consumer and Business Services or any entity or agency administering the Children’s Reinsurance Program on behalf of the Department of Consumer and Business Services.

(5) “Healthy KidsConnect” means a health benefit plan established pursuant to ORS 414.231.

(6) “Standard Health Statement” means the Oregon Standard Health Statement described in OAR 836-053-0510.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0020

Non-grandfathered Individual and Healthy KidsConnect Health Insurance Enrollment for Persons Under 19 Years of Age

(1) A carrier that issues a non-grandfathered individual or Healthy KidsConnect health benefit plan may not limit, exclude, or deny health insurance coverage under a non-grandfathered individual or Healthy KidsConnect health insurance policy based on health status or preexisting condition of a person under the age of 19 years. However, a carrier may cede to the Children’s Reinsurance Program the risk of a person under the age of 19 years in accordance with OAR 836-100-0011 to 836-100-0045.

(2) Coverage under a health benefit plan:

(a) Ceded under OAR 836-100-0011 to 836-100-0045 shall be effective on the date the insurer normally makes coverage effective under the benefit plan selected.

(b) Must be effective from the moment of birth for a newly born child of the insured in accordance with ORS 743A.090.

(c) Must be effective upon placement for adoption for an adopted child of the insured in accordance with ORS 743A.090.

(3) A carrier that issues a non-grandfathered individual health benefit plan need not provide coverage to an applicant if the applicant previously had coverage with the carrier during the 12 months prior to the application for coverage and that coverage was terminated:

(a) For conduct that constituted the basis for a legally valid rescission;

(b) For failing to abide by the terms and conditions of the insurance contract, including but not limited to the failure to pay premiums in a timely manner; or

(c) By the policyholder.

Stat. Auth.: ORS 731.244 & 743.773

Stats Implemented: ORS 743.731, 743A.090, 743.769 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 19-2010(Temp), f. & cert. ef. 9-23-10 thru 3-21-11; ID 3-2011, f. & cert. ef. 2-10-11; Renumbered from 836-100-0010, ID 10-2011, f. & cert. ef. 7-5-11

836-100-0025

Eligible Carriers and Plans

(1) A carrier that issues an individual or Healthy KidsConnect health benefit plan in Oregon to children under 19 years of age must issue the plan on a guaranteed issue basis with no pre-existing conditions.

(2) A carrier may consider information provided on the standard health statement or other internally available health records or data of the carrier for the purpose of determining whether to cede a risk.

(3) A carrier:

(a) May cede to the Children’s Reinsurance Program under OAR 836-100-0011 to 836-100-0045 the risk of an applicant accepted for coverage under any individual health benefit plan offered by the carrier in Oregon on or after August 1, 2011.

(b) May not cede a risk for a person under the age of 19 who enrolls in a portability health benefit plan as defined in ORS 743.760, unless the applicant is currently ceded with the carrier.

(c) Shall notify DCBS if the carrier decides to cede the risk. At the time the carrier notifies the department, the carrier must provide the following to the department:

(A) Information about the plan that the applicant selected;

(B) An explanation of the basis for the premium for the applicant;

(C) Demographic information in accordance with application materials provided by the program.

(4) If a child insured under a health benefit plan provided by a carrier and not ceded by the carrier under the Children’s Reinsurance Program subsequently applies with the same carrier for coverage under a health benefit plan that provides more comprehensive coverage, the carrier may exercise the option to cede the risk at the time the child changes health benefit plans. The carrier shall comply with the same time limits for exercising the option to cede as set forth in OAR 836-100-0040.

(5) A carrier participating in the Healthy Kids program may cede risks acquired under that program only if the carrier first receives the enrollment notification from the Healthy KidsConnect office on or after August 1, 2011;

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0030

Role of Carrier that Cedes Risk

(1) When a carrier cedes risk to the Children’s Reinsurance Program:

(a) The carrier shall continue to administer and manage the policy for the insured in accordance with the policy terms including but not limited to managing the risk to reduce costs.

(b) The carrier may not retain any portion of the premium.

(2) A designation as a ceded risk will last until January 1, 2014. If a child attains an age of 19 or older before January 1, 2014, the child shall remain in the program as a ceded risk as long as the child remains with the same carrier. If a child changes carriers, the new carrier may make a new determination about whether to cede the risk in accordance with OAR 836-100-0025.

(3) Each carrier shall submit to DCBS a report for risks ceded to the Children’s Reinsurance Program for which the carrier continues to manage and provide administrative support. The report shall be submitted in accordance with a schedule agreed upon by the department and the carrier and shall include for each insured:

(a) Identification;

(b) Reported claims;

(c) Reported paid claims; and

(d) Premium received or earned.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0035

Administrative Costs and Variable Expenses under Children’s Reinsurance Program

For health benefit plan coverage provided by a carrier participating in the Children’s Reinsurance Program, a carrier may not retain a premium for:

(1) Child only policies for which the risk is ceded to the Children’s Reinsurance Program.

(2)Any portion of a family or subscriber and children policy ceded to the program. For a family policy or a subscriber and children policy, the total premium allocated to a child for whom coverage is ceded shall be calculated by determining the total premium due for all children on the policy, divided by the number of children on the policy.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0040

Health Assessment Period

(1) Except as provided in section (2) of this rule, the carrier shall determine whether to cede a risk to the Children’s Reinsurance Program within 105 days after the effective date of coverage. The Healthy KidsConnect carrier shall determine whether to cede a risk to the Children’s Reinsurance Program within 105 days after the effective date of coverage.

(2) If a carrier opts not to cede a risk within the first 105 days from the effective date of coverage, the carrier may retroactively cede the risk within six months after for the effective date of coverage if:

(a) The carrier identifies an error in the standard health statement; and

(b) The error is such that, had the carrier known about the condition to which the error pertains within the 105 days allowed to determine whether to cede the risk, the carrier would have ceded the risk.

(3) The ceding of a risk under this rule shall be retroactive to the insured’s effective date of coverage.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

836-100-0045

Claims and Premium Reconciliation

(1) A carrier shall submit the report required by the Children’s Reinsurance Program to obtain reimbursement of claims paid on a ceded life.

(2) Any adjustments for third party liabilities recovered by a health carrier shall be adjusted and reconciled according to the reporting and reconciliation schedule of the Children’s Reinsurance Program.

(3) A carrier may retain pharmacy rebates.

(4) Commercial reinsurance recoveries shall be adjusted and reconciled according to the reporting and reconciliation schedule of the Children’s Reinsurance Program.

(5) Premiums received in excess of claims submitted will be retained by the Children’s Reinsurance Program to apply toward payment of future claims incurred by ceded lives.

(6) Claims incurred during an active period of coverage for a ceded life must be filed within 12 months of the date of service and no later than December 31, 2014 to be eligible for reimbursement through the Children’s Reinsurance Program.

Stat. Auth.: ORS 731.244 & 743.731

Stats Implemented: ORS 743.731 & 2011 OL Ch. 131 (Enrolled SB 514)

Hist.: ID 10-2011, f. & cert. ef. 7-5-11

Rule Caption: Amending rules related to appeals procedures for health benefit plans to comply with federal law.

Adm. Order No.: ID 11-2011(Temp)

Filed with Sec. of State: 7-7-2011

Certified to be Effective: 7-7-11 thru 12-21-11

Notice Publication Date:

Rules Amended: 836-053-1030, 836-053-1100, 836-053-1310, 836-053-1340, 836-053-1342, 836-053-1350

Subject: This rule makes five minor changes to our existing appeals and grievances rules for health benefit plans, in accordance with guidance we have received from the federal government about what will be considered when our compliance with federal law is being considered in July. Specifically, this rule:

      • Requires that insurers provide summary information relating to internal appeals and external review processes in the policy or other “evidence of coverage” and gives guidance about what information relating to external review must be provided;

      • Clarifies that when either party submits information to an independent review organization (IRO) for consideration by the IRO, the IRO must forward that information to the other party within one business day of the IRO;

      • Requires IROs to be accredited by a nationally recognized private accrediting organization;

      • Disallows insurers from requiring enrollees complete an internal appeal process or expedited internal appeal process before requesting and receiving expedited external review. Also allows insurers to waive internal appeals process for any reviewable adverse benefit determination, allowing consumer to skip to external review in those situations. These provisions were previously industry practice, but law and rule were unclear;

      • Requires IROs to keep records of a review for at least three years after the review is conducted.

      These changes resolve the specific concerns of the federal officials who have contacted us. We believe that adoption of these temporary rules will allow Oregon to be “deemed compliant” upon review of our appeals process this month.

Rules Coordinator: Sue Munson—(503) 947-7272

836-053-1030

Written Information to Enrollees

(1) Each insurer must furnish the written general information to policyholders that is required by ORS 743.804, including but not limited to information relating to enrollee rights and responsibilities, including the right to appeal adverse benefit determinations; services, access thereto and related charges and scheduling; and access to external review, as provided in this rule. An insurer:

(a) Must furnish the information regarding an individual health insurance policy to each policyholder; and

(b) Must furnish the information regarding a group health insurance policy to the group policyholder for distribution to enrollees of the group policy.

(2)(a) The written general information referred to in section (1) of this rule must be included either in the policy or in other evidence of coverage that is delivered to the individual policyholder by the insurer, or in the case of a group health insurance policy, that is delivered by the insurer to the group policyholder for distribution to enrollees.

(b) The information required under subsection (a) of this section must include:

(A) A description of the external review process, including when external review is available and how to request external review. The description must include the phone number of the Oregon Insurance Division.

(B) A disclosure that when filing a request for an external review the covered person will be required to authorize the release of any medical records of the covered person that may be required to be reviewed for the purpose of reaching a decision on the external review.

(3) The written general information must disclose the following in relation to referrals for specialty care, behavioral health services, hospital services and other services, in addition to other relevant information regarding referrals:

(a) If applicable, how gatekeeping or access controls apply to referrals and whether and how the controls differ for specialty care, behavioral health services and hospital services; and

(b) Any limitation on referrals if a plan has a defined network of participating providers and if referrals for specialty care may be limited to a portion of the network, such as to those specialists who contract with an enrollee’s primary care group.

(4) The written general information must include the information required by ORS 743.699, relating to coverage of emergency medical conditions and obtaining emergency services, including a statement of the prudent layperson standard for an emergency medical condition, as that term is defined in 743.801. An insurer may meet the requirement of providing information in 743.699 by providing adequate disclosure in the written general information required by 743.804(5) and this rule. An insurer may use the following statement regarding the use of the emergency telephone number 9-1-1, or other wording that appropriately discloses its use: If you or a member of your family needs immediate assistance for a medical emergency, call 9-1-1 or go directly to an emergency room.

(5) The written general information must include information regarding the use of the insurer’s grievance process, including the assistance available to enrollees in filing written grievances in accordance with OAR 836-053-1090 and the utilization review appeal procedures required by ORS 743.807(2)(c). The information must be contained in a separate section of the written information and captioned in a manner that clearly indicates that the section addresses grievances and appeals.

(6) The written general information must include a notice that states the right to file a complaint with or seek assistance from the Director of the Department of Consumer and Business Services. An insurer may use the following statement or other appropriate wording for this purpose:

You have the right to file a complaint or seek other assistance from the Oregon Insurance Division. Assistance is available:

By calling (503) 947-7984 or the toll free message line at (888) 877-4894;

By writing to the Oregon Insurance Division, Consumer Protection Unit,

350 Winter Street NE, Salem, OR 97301-3883;

Through the Internet at http://www.insurance.oregon.gov/consumer/tomake.html; or

By e-mail at: cp.ins@state.or.us.

(7) The written general information for an insurance policy providing managed health care must include a description of the procedures by which enrollees, purchasers and providers may participate in the development and implementation of insurer policy and operation.

(8) The portion of the written general information that describes how an insurer makes decisions regarding coverage and payment for treatment or services must include a notice to enrollees that they may request an additional written summary of information that the insurer may consider in its utilization review of a particular condition to the extent the insurer maintains such criteria. The notice to enrollees must include the name and telephone number of the administrative section of the insurer that handles enrollee requests for information.

(9) If a plan has a defined network of participating providers, the written general information must include a list of all primary care providers and direct access providers, and may also include a list of all specialty care providers. For the purposes of this section, a primary care provider or direct access provider is a participating provider under the terms of the plan who an enrollee may designate as the primary care provider for the enrollee or from whom an enrollee may obtain services without referral. The list of providers must include for each provider the provider’s name, professional designation, category of practice and the city in which the practice of the provider is located. If the information does not list participating specialty care providers, the information must state that fact and must disclose the manner in which an enrollee may obtain information about participating specialty care providers.

(10) If a plan includes risk-sharing arrangements with physicians or other providers, the written general information must contain a statement to that effect, including a brief description of risk-sharing in general, and must notify enrollees that additional information is available upon request. For the purpose of this requirement, a risk-sharing arrangement does not include a fee-for-service arrangement or a discounted fee-for-service arrangement. An insurer may use the following statement to describe risk-sharing, or other appropriate wording: This plan includes “risk-sharing” arrangements with physicians who provide services to the members of this plan. Under a risk-sharing arrangement, the providers that are responsible for delivering health care services are subject to some financial risk or reward for the services they deliver. An example of a risk sharing arrangement is a contract between an insurer and a group of heart surgeons in which the surgeons agree to provide all of the heart operations needed by plan members and the insurer agrees to pay a fixed monthly amount for those services.

(11) If the insurer of a plan uses a mandatory closed formulary, the written general information for that plan must prominently disclose and explain the formulary provision. The disclosure and explanation must be in boldfaced type or otherwise emphasized.

(12) The written general information must include a notice disclosing that additional information is available to enrollees upon request to the insurer. The notice must include the name and telephone number of the insurer’s administrative section that handles enrollee requests for information. For the notice required in the written general information disclosing information available from the Department of Consumer and Business Services, an insurer may use the following statement, or other appropriate wording:

The following information regarding the health benefit plans of (insurer’s name) is available from the Oregon agency:

(1) An annual summary of grievances and appeals;

(2) (If applicable) An annual summary of utilization review policies;

(3) (If applicable) An annual summary of quality assessment activities;

(4) (If applicable) The results of all publicly available accreditation surveys;

(5) (If applicable) An annual summary of the insurer’s health promotion and disease prevention activities;

(6) (If applicable) An annual summary of scope of network and accessibility of services.

This information is available:

By calling (503) 947-7984 or the toll free message line at (888) 877-4894;

By writing to the Oregon Insurance Division, Consumer Protection Unit,

350 Winter Street NE, Salem, OR 97301-3883;

Through the Internet at http://www.insurance.oregon.gov/consumer/tomake.html; or

By e-mail at: cp.ins@state.or.us.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 500 (Enrolled SB 89)

Stats. Implemented: ORS 743.699, 743.804 & 743.807

Hist.: ID 1-1998, f. & cert. ef. 1-15-98; ID 5-2000, f. & cert. ef. 5-11-00; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

836-053-1100

Time Requirements for Grievance Review

(1) The minimum standards for timeliness of response by an insurer to grievances and appeals by its enrollees, for purposes of the system of resolving grievances and appeals required by ORS 743.804 are as follows:

(a) An insurer shall acknowledge receipt of an initial grievance or the first or second appeal from an enrollee not later than the seventh day after receiving the grievance or the first or second appeal;

(b) An insurer shall make a decision on the initial grievance or the first or second appeal not later than the 30th day after receiving notice of the initial grievance or the appeal. In the event of an initial grievance, the insurer may have an additional 15 days to resolve the issue if before the 30th day the insurer gives a notice of delay to the enrollee or representative of the enrollee that includes a specific reason for the delay.

(2) An otherwise applicable standard for timeliness in section (1) of this rule does not apply when:

(a) The period of time is too long to accommodate the clinical urgency of the situation;

(b) The enrollee does not reasonably cooperate; or

(c) Circumstances beyond the control of a party prevent that party from complying with the standard, but only if the party who is unable to comply gives notice of the specific circumstances to the other party when the circumstances arise.

(3) An insurer shall treat an appeal from a decision by a medical consultant or peer review committee pursuant to OAR 836-053-1140(1)(b) as a second appeal under the insurer’s grievance procedures under ORS 743.804(3).

(4) For adverse benefit determinations eligible for external review pursuant to ORS 743.857, an insurer may waive its internal appeals process at any time. If the insurer waives its internal appeals process, the internal appeals process is deemed exhausted for the purposes of qualifying for external review.

Stat. Auth.: ORS 731.244

Stats. Implemented: ORS 743.804

Hist.: ID 1-1998, f. & cert. ef. 1-15-98; ID 5-2000, f. & cert. ef. 5-11-00; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

836-053-1310

Contracting Requirements

(1) To be considered for contracting with the Director as an independent review organization under ORS 743.858 for the purpose of providing independent review under 743.857, an independent review organization must submit to the Director a response to the Director’s request for proposal according to its requirements. The response must include:

(a) For an independent review organization that is publicly held, the name of each stockholder or owner of more than five percent of any stock or options;

(b) The name of any holder of bonds or notes of the independent review organization that exceed $100,000;

(c) The name and type of business of each corporation or other organization that the independent review organization controls or is affiliated with and the nature and extent of the affiliation or control;

(d) The name and a biographical sketch of each director, officer and executive of the independent review organization and any entity listed under subsection (c) of this section and a description of any relationship the named individual has with:

(A) An insurer;

(B) A utilization review agent;

(C) A nonprofit or for-profit hospital or other health care corporation;

(D) A doctor of medicine or osteopathy, a provider or other health care professional;

(E) A drug or device manufacturer; or

(F) A group representing any of the entities described by paragraph (A) to (E) of this subsection;

(e) The percentage of the independent review organization’s revenues that the independent review organization anticipates will be derived from reviews conducted under ORS 743.862;

(f) A description of the areas of expertise of the medical reviewers making review determinations for the independent review organization, as well as policies and standards of the independent review organization that address qualifications, training and assignment of all types of medical reviewers and that are compliant with requirements of OAR 836-053-1317;

(g) The procedures that the independent review organization will use in making review determinations regarding reviews conducted under ORS 743.862;

(h) Attestations that all requirements will be met;

(i) Evidence of accreditation by a nationally recognized private accrediting organization;

(j) Other documentation, including but not limited to legal and financial information, policies and procedures, and data that are pertinent to requirements of ORS 743.862 and OAR 836-053-1315; and

(k) Any other requirements established by the Director that demonstrate the independent review organization’s ability to meet all requirements for contracting as an independent review organization in this state.

(2) In order to enable the Director to consider the response of an independent review organization under section (1) of this rule:

(a) The independent review organization must authorize release of information from primary sources, including full reports of site visits, inspections and audits; and

(b) The Director may require the independent review organization to indicate which documents demonstrate compliance with specific statutory requirements under ORS 743.862 and OAR 836-053-1315.

(3) Investigation and verification activities of the Director regarding the independent review organization may include, but are not limited to:

(a) Review of the response of the independent review organization to the request for proposals and its filings for completeness and compliance with standards;

(b) On-site survey or examination;

(c) Primary-source verification with accreditation or regulatory bodies of compliance with requirements that are used to demonstrate compliance with applicable standards established in ORS 743.862 and OAR 836-053-1315; and

(d) Other means of determining regulatory and accreditation histories.

Stat. Auth.: ORS 731.244, 743.858 & 2011 OL Ch. 500 (Enrolled SB 89)

Stats. Implemented: ORS 743.858

Hist.: ID 10-2002(Temp), f. & cert. ef. 4-5-02 thru 9-27-02; ID 19-2002, f. 9-27-02, cert. ef. 9-28-02; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

836-053-1340

Timelines and Notice for Dispute That is Not Expedited

(1) An insurer shall give the Director notice of an enrollee’s request for independent review by delivering a copy of the request to the Director not later than the second business day of the insurer after the insurer receives the request for the independent review.

(2) If an insurer reverses its final adverse determination before expiration of the deadline for sending the notice to the Director under section (1) of this rule, the insurer must notify the enrollee not later than the next business day of the insurer after its reversal. The notice to the enrollee may be given electronically, by facsimile or by telephone, followed by a written confirmation.

(3) Not later than the next business day of the Department after the Director has received a request for independent review from an insurer, the Director shall assign the review to one of the independent review organizations with whom the Director has contracted. The Director shall notify the insurer in writing of the name and address of the independent review organization to which the request for the independent review should be sent. If sending written notice will unduly delay notification, the Director shall give the notice electronically, by facsimile or by telephone, followed by a written confirmation.

(4) The Director shall notify the enrollee, not later than the second business day of the Department after the Director gave notice under section (3) of this rule of the assignment of the request. The notice must include a written description of the independent review organization selected to conduct the independent review and information explaining how the enrollee may provide the Director with documentation regarding any potential conflict of interest of the independent review organization as described in OAR 836-053-1320.

(5) Not later than the third calendar day following receipt of notice from the Director under section (4) of this rule, or the subsequent business day of the Department if any of the days is not a normal business day of the Department, the enrollee may provide the Director with documentation regarding a potential conflict of interest of the independent review organization. The documentation shall be sent in written form. If sending written documentation will unduly delay the process, the enrollee shall give the notice electronically, by facsimile or by telephone, followed by a written confirmation. If the director determines that the independent review organization presents a conflict of interest as described in OAR 836-053-1320, the Director shall assign another independent review organization not later than the next business day of the Department. The Director shall notify the insurer of the new independent review organization to which the request for the independent review should be sent. The Director shall also notify the enrollee of the Director’s determination regarding the potential conflict of interest and the name and address of the new independent review organization.

(6) Not later than the sixth business day of the insurer after the date on which the insurer received notice from the Director under section (3) of this rule, the insurer shall deliver to the assigned independent review organization the following documents and information considered in making the insurer’s final adverse decision, including the following:

(a) Information submitted to the insurer by a provider or the enrollee in support of the request for coverage under the health benefit plan’s procedures.

(b) Information used by the health benefit plan during the internal appeal process to determine whether the course or plan of treatment is:

(A) Medically necessary;

(B) Experimental or investigational; or

(C) An active course of treatment for purposes of continuity of care.

(c) A copy of all denial letters issued by the plan concerning the case under review.

(d) A copy of the signed waiver form, or a waiver, authorization or consent that is otherwise permitted under the federal Health Insurance Portability and Accountability Act or other state or federal law, authorizing the insurer to disclose protected health information, including medical records, concerning the enrollee that is pertinent to the independent review.

(e) An index of all submitted documents.

(7) Not later than the second business day of the independent review organization after receiving the material specified in section (6) of this rule, the independent review organization shall deliver to the enrollee the index of all materials that the insurer has submitted to the independent review organization. The insurer shall provide to the enrollee, upon request, all relevant information supplied to the independent review organization that is not confidential or privileged under state or federal law concerning the case under review.

(8) After receipt of the notice from the Director under section (4) of this rule, the enrollee, the insurer, or a provider acting on behalf of the enrollee or at the enrollee’s request may submit additional information to the independent review organization. In accordance with OAR 836-053-1325(3)(b) the independent review organization must consider this additional information if the information is related to the case and relevant to statutory criteria. The independent review organization is not required to consider this information if the information is submitted after the seventh calendar day following the receipt of notice from the Director under section (4) of this rule, or the subsequent business day of the independent review organization if any of the seven days is not a normal business day of the independent review organization. Upon receiving information under this section the independent review organization must:

(a) Forward any information provided by the insurer to the enrollee within one business day after the independent review organization receives the information.

(b) Forward any information provided by the enrollee or a provider acting on behalf of the enrollee or at the enrollee’s request to the insurer within one business day after the independent review organization receives the information.

(9) The independent review organization shall notify the enrollee, the provider of the enrollee and the insurer of any additional medical information required to conduct the review after receipt of the documentation under section (7) of this rule. Not later than the fifth business day of such a request, the enrollee or the provider of the enrollee shall submit the additional information or an explanation of why the additional information is not being submitted to the independent review organization. If the enrollee or the provider of the enrollee fails to provide the additional information or the explanation of why additional information is not being submitted within the timeline specified in this subsection, the assigned independent review organization shall make a decision based on the information submitted by the insurer as required by section (6) of this rule. Except as provided in this section, failure by the insurer to provide the documents and information within the time specified in section (6) of this rule shall not delay the conduct of the independent review.

(10) An independent review organization must provide notice to enrollees and the insurer of the result and basis for the determination as provided in OAR 836-053-1325 not later than the fifth day after the independent review organization makes a determination in a regular, nonexpedited case.

Stat. Auth.: ORS 731.244, 743.858, 743.862 & 2011 OL Ch. 500 (Enrolled SB 89)

Stats. Implemented: ORS 743.858 & 743.862

Hist.: ID 10-2002(Temp), f. & cert. ef. 4-5-02 thru 9-27-02; ID 19-2002, f. 9-27-02, cert. ef. 9-28-02; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

836-053-1342

Timelines and Notice for Expedited Decision-Making

(1) When an insurer expedites an enrollee’s case under ORS 743.857(4), the insurer shall inform the Director and the independent review organization that the referral is expedited. If information on whether a referral is expedited is not provided to the independent review organization, the independent review organization may presume that the referral is not an expedited review, but the independent review organization may request clarification from the insurer.

(2) An insurer shall expedite external review of cases pursuant to ORS 743.857(4) when an enrollee requests external review before exhausting internal reviewing, including when an enrollee simultaneously requests expedited internal and expedited external reviews.

(3) An independent review organization shall make its decision in each expedited case within a time period that is appropriate for accommodating the clinical urgency of the particular case, but in any event not exceeding the maximum time period specified in ORS 743.862(3).

(4) In an expedited case, an independent review organization shall immediately provide notice to enrollees and the insurer of the result and basis for the determination as provided in OAR 836-053-1325.

Stat. Auth.: ORS 731.244, 743.858, 743.862 & 2011 OL Ch. 500 (Enrolled SB 89)

Stats. Implemented: ORS 743.858 & 743.862

Hist.: ID 10-2002(Temp), f. & cert. ef. 4-5-02 thru 9-27-02; ID 19-2002, f. 9-27-02, cert. ef. 9-28-02; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

836-053-1350

Ongoing Requirements for Independent Review Organizations

(1) An independent review organization shall file an annual statistical report with the Director, on a form specified by the Director, that summarizes reviews conducted. The report shall include, but need not be limited to, volumes, types of cases, compliance with timelines for expedited and nonexpedited cases, determinations, number and nature of complaints and compliance with conflict of interests rules.

(2) An independent review organization shall submit updated information to the Director if at any time there is a material change in the information included in the response of the independent review organization to the Director’s request for proposals.

(3) An independent review organization shall maintain records of all materials, including materials submitted by all parties, notifications, documents relied upon, and the independent review organization’s ultimate decision for a period of not less than three years after any review. The independent review organization shall provide copies of any of these documents to the Director of the Department of Consumer and Business Services at the Director’s request.

Stat. Auth.: ORS 731.244, 743.858, 743.862 & 2011 OL Ch. 500 (Enrolled SB 89)

Stats. Implem ented: ORS 743.858 & 743.862

Hist.: ID 10-2002(Temp), f. & cert. ef. 4-5-02 thru 9-27-02; ID 19-2002, f. 9-27-02, cert. ef. 9-28-02; ID 11-2011(Temp), f. & cert. ef. 7-7-11 thru 12-21-11

Rule Caption: Adoption of Oregon Companion Guide for Health Care Eligibility Benefit Inquiry and Response.

Adm. Order No.: ID 12-2011

Filed with Sec. of State: 7-15-2011

Certified to be Effective: 7-15-11

Notice Publication Date: 5-1-2011

Rules Adopted: 836-100-0100, 836-100-0105, 836-100-0110, 836-100-0115, 836-100-0120

Subject: This rule will adopt uniform standards for administrative simplification of health insurance developed by the Office of Oregon Health Policy and Research pursuant to the provisions of Section 1193, Chapter 595, Oregon Laws 2009. Section 2, chapter 130, Oregon Laws 2011 (replacing Section 1192, Chapter 595, Oregon Laws 2009*) requires the Department of Consumer and Business Services to adopt these standards by rule. The standards adopted by this rulemaking pertain to health care benefit eligibility inquiries and responses and are set forth in the “Oregon Companion Guide for the Implementation of the ASC X12N/005010X279, Health Care Eligibility Benefit Inquiry and Response (270/271).”

      Senate Bill 94 was enacted into law before the public hearing, so the final rules encompass the changes necessary to reflect the provisions of Senate Bill 94.

      *Sections 1192 and 1193 of chapter 595, Oregon Laws 2009 were replaced by sections 2 to 5, chapter 130, Oregon Laws 2011 (Enrolled Senate Bill 94) during the 2011 Legislative Session. The authority to adopt rules and the directives to the Office of Oregon Health Policy and Research and the Department of Consumer and Business Services did not change except to extend that authority to require additional entities to comply with the uniform standards.

Rules Coordinator: Sue Munson—(503) 947-7272

836-100-0100

Authority; Purpose; Scope

(1) OAR 836-100-0100 to 836-100-0120 are adopted by the Director of the Department of Consumer and Business Services pursuant to section 2, chapter 130, Oregon Laws 2011 (Enrolled Senate Bill 94). The purpose of OAR 836-100-0100 to 836-100-0120 is to establish the uniform administrative standards that health insurers and health care entities are required to comply with under section 2, chapter 130, Oregon Laws 2011 (Enrolled Senate Bill 94). The uniform standards have been developed by the Office for Oregon Health Policy and Research in consultation with stakeholders pursuant to section 3, chapter 130, Oregon Laws 2011 (Enrolled Senate Bill 94).

(2) The uniform standards adopted under OAR 836-100-0100 to 836-100-0120 apply to all health insurers and health care entities in Oregon as specified in each companion guide.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Stats. Implemented: 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Hist.: ID 12-2011, f. & cert. ef. 7-15-11

836-100-0105

Definitions

(1) “Electronic transaction” means to conduct a transaction:

(a) Through the use of a computer program or an electronic or other automated means independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual; or

(b) Through the use of a web portal or the internet.

(2) “Health care entity” includes:

(a) A health care service contractor as required under ORS 750.055;

(b) A multiple employer welfare arrangement as required under ORS 750.333;

(c) A prepaid managed care health services organization as defined in ORS 414.736;

(d) Any entity licensed as a third party administrator under ORS 744.702;

(e) Any person or public body that either individually or jointly established a self-insurance plan, program or contract, including but not limited to persons and public bodies that are otherwise exempt from the Insurance Code under ORS 731.036;

(f) A health care clearinghouse or other entity that processes or facilitates the processing of health care financial and administrative transactions from a nonstandard format to a standard format; and

(g) Any other person identified by the department that processes health care financial and administrative transactions between a health care provider and an entity described in this subsection.

(3) “Health insurer” means any insurer authorized to transact health insurance in Oregon.

(4) “Oregon Companion Guide for Health Care Eligibility Benefit Inquiry and Response” means the document of that name posted on the Oregon Insurance Division’s website.

(5) “Oregon Companion Guide Oversight Committee” means the committee appointed jointly by the Department of Consumer and Business Services and the Oregon Health Authority to carry out the responsibilities under OAR 836-100-0120.

(6) “Provider” means a health care provider that provides health care or medical services within Oregon for a fee and is eligible for reimbursement for these services.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Stats. Implemented: 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Hist.: ID 12-2011, f. & cert. ef. 7-15-11

836-100-0110

Adoption of Standards

(1) All health insurers and health care entities must conduct eligibility benefit inquiry and response transactions with health care providers as electronic transactions that conform to the uniform standards developed by the Office for Oregon Health Policy and Research pursuant to section 3, chapter 130, Oregon Laws 2011 (Enrolled Senate Bill 94)as set forth in the Oregon Companion Guide for Health Care Eligibility Benefit Inquiry and Response.

(2) The requirements of section (1) of this section apply to transactions with health care providers:

(a) On January 1, 2012 for those health care providers that submit the inquiry electronically on the effective date of these rules.

(b) On October 1, 2012, for all inquiries from all health care providers.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Stats. Implemented: 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Hist.: ID 12-2011, f. & cert. ef. 7-15-11

836-100-0115

Waiver for Hardship

(1) Until January 1, 2014, the Director of the Department of Consumer and Business Services may grant a waiver to a health insurer or health care entity subject to OAR 836-100-0110 that demonstrates that the health insurer or health care entity is unable to comply with its provisions, or for whom compliance would be an undue hardship. A health insurer or health care entity requesting a waiver must submit a letter of need to the director. If the health insurer or health care entity requires an extension of the waiver, the health insurer or health care entity may apply to the Director of the Department of Consumer and Business Services for a temporary waiver of some or all of the provisions of the applicable Oregon Companion Guide. The waiver request must:

(a) Specify the name of the Oregon Companion Guide for which the waiver is requested;

(b) Indicate whether the waiver is for the entire Oregon Companion Guide or for specific provisions in the Oregon Companion Guide for which a waiver is requested.

(c) Explain the reasons the health insurer or health care entity is unable to comply or for which compliance would cause undue hardship, including systemic or structural impediments, financial hardship, and any other factors the health insurer or health care entity believes pertinent to the request.

(d) Specify the period of time for which the waiver is requested. After January 1, 2014, an insurer or health care entity may not request a waiver for a period longer than twelve months. An insurer or entity may request a waiver for an additional twelve months as previous waivers lapse.

(e) Include the insurer’s or entity’s plan for coming into compliance with the provisions of OAR 836-100-0110 during the time granted by the waiver.

(2)(a) After considering a request for a waiver submitted under section (1) of this rule, and at the director’s discretion, the director may grant or deny the request.

(b) In considering whether to allow a waiver requested pursuant to section (1) of this rule, the director shall consider the efforts of the health insurer or health care entity to comply with federal requirements contained in Section 1104 of the Patient Protection and Affordable Care Act.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Stats. Implemented: 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Hist.: ID 12-2011, f. & cert. ef. 7-15-11

836-100-0120

Review and Update of Standards

(1) The Department of Consumer and Business Services and the Oregon Health Authority shall jointly appoint an Oregon Companion Guide Oversight Committee. The members appointed to the committee must demonstrate knowledge of the transactions subject to the Oregon Companion Guides, financial knowledge, operational industry or business expertise, or knowledge of the technology necessary to implement the requirements of the companion guides.

(2) The Oregon Companion Guide Oversight Committee shall meet as needed to review the implementation of the administrative standards encompassed by the Oregon Companion Guides. The committee shall address issues identified by the Department of Consumer and Business Services and the Oregon Health Authority, including but not limited to:

(a) Consider and make recommendations to Oregon Health Authority and Department of Consumer and Business Services about needed changes to the guides in order to keep the guide up to date with industry and federal government driven changes.

(b) Provide reports to Department of Consumer and Business Services and Oregon Health Authority regarding health insurer and provider participation, successes and areas for improvement.

(c) Review any proposed changes developed by Oregon Health Authority to the standards or companion guides.

(d) Review any proposed changes developed by Department of Consumer and Business Services to the rules requiring compliance with the companion guides.

Stat. Auth.: ORS 731.244 & 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Stats. Implemented: 2011 OL Ch. 130 Sec. 2 (Enrolled SB 94)

Hist.: ID 12-2011, f. & cert. ef. 7-15-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use