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After the recent Technical Release 2011-02, self-funded plans, insurers and payers will be able to comply with PPACA's internal appeals and external review provisions within the timelines provided. The new rules released June 24 by the U.S. DOL, Treasury and HHS made significant changes to the claims appeal and review obligations under the DOL rules released last year. Many of the changes and amendments take effect as an interim final rule on July 23, 2011. Among the changes, a transition period for enforcement of the External Review standards will take place in January 2012 rather than July 1, 2011 as set out in previous regulations.
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More Flexibility for Plans:
72 hours for urgent care claims decisions
Minor errors will not invalidate internal review
Diagnosis and treatment codes only upon request
Foreign language notices must be provided based on Census figures.
Most significantly, the agencies made changes that created a more flexible rule on diagnosis and treatment codes. For example, the agencies dropped their demands that plans automatically provide diagnosis and treatment codes as part of a notice of adverse benefit determination. Now, plans need only to tell participants that they are able to get the diagnosis and treatment codes upon request. Plans, however, are still required to identify the claim, date of the service, health care provider and amount. Additionally, the TR 2011-02 eased the urgent care claims rule that required plans to notify plan participants within 24 hours. Now plans can take 72 hours, as per the DOL existing rules, but only as an outer limit, and only if the plan or insurer agree that the attending provider's decision relates to a claim related to urgent care.
Moreover, minor errors that threatened to invalidate the plan's internal review will no longer be sufficient to send the claim to external review or to court. Under the original 2010 rule, if a plan failed to give a timely internal review of a claim, the participant would have been considered to have exhausted the plan's internal review process and could immediately move on to seeking IRO review or a court remedy. The rule now has an exception that does away with minor compliance errors. Under the amended rule, any violation of the procedures outlined by the plan would permit a claimant to seek immediate external review or court action unless the violation was:
72 hours for urgent care claims decisions;
Minor errors will not invalidate internal review;
De Minimis;
non-prejudicial;
attributable to good cause or matters beyond the plan's or insurer's control;
in the context of an ongoing good faith exchange of information; and
not reflective of a pattern or practice of non-compliance.
Short of that, the plan's internal review procedures will continue.
Foreign Language Notices:
The July 2010 regulations required plans to provide notices in a culturally and linguistically appropriate manner. The agencies amended the rule to establish that plans now can print notices in the dominant foreign language if 10% of the population of a county speaks the same language that is not English. Under the previous rule, companies with under 100 employees would have to provide foreign-language notices if 25% of the employees spoke the second language.
This means that group health plans and insurers providing coverage in 255 counties will be required to print the foreign language notices. Those counties where those employers are located are identified by the U.S. Census which reports that the majority of the notices will be printed in Spanish, followed by Navajo and Chinese. In Alaska, employers from two counties will have to print information in Tagalong.
Earlier External Review Compliance:
As previously reported, PPACA established that plans will have to begin complying with either the federal rule based on the NAIC Uniform Model External Review Act or state laws that meet or exceed the minimum consumer protections of the NAIC. The original date of compliance which said that welfare benefit plans with plan years starting July 2011 would have a year to comply. In order to start compliance in a state that has already implemented state external review processes, the agencies impose a state external review process in lieu of the federal external review process beginning on Jan. 1, 2012.
In the future, external review decisions will only be required for eligible claims that involve the following:
Medical judgment as defined as those excluding claims that involve only contractual or legal interpretation without any use of medical judgment as determined by the external reviewer; or
Rescission of Coverage
IRO decisions are binding:
The agencies clarified that once a binding external review decision is made, the plan or insurer must provide benefits, which includes making payment on the claim, in accordance with the IRO's opinion without delay. This requirement is without regard to whether the plan or insurer intends to seek judicial review on the claim decision.
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