MANAGED CARE LAW
420-J:1 Purpose and Intent.
The purpose and intent of this chapter is to provide standards for certain fundamental operations of licensed entities providing health insurance through a managed care system of health care delivery and reimbursement. The establishment of these standards will ensure regulatory and quality consistency among the several and various licensees offering managed care type benefit plans and will enable consumers to make informed decisions in their relationships with managed care insurers. This chapter is intended to apply only to those insurers offering managed care plans. It is not intended to apply to traditional indemnity systems of reimbursement and fee-for-service forms of health care expense coverage. Health insurers which do not significantly limit covered persons' choices of providers shall not be subject to this chapter.
Source. 1997, 345:1, eff. Jan. 1, 1998.
420-J:2 Applicability and Scope.
This chapter shall apply to all health carriers offering a managed care plan in this state.
Source. 1997, 345:1, eff. Jan. 1, 1998.
In this chapter:
I. "Adverse determination" means a determination by a health carrier or its designee utilization review entity that an admission, availability of care, continued stay or other health care service has been reviewed and, based upon the information provided, does not meet the health carrier's requirements for medical necessity, appropriateness, health care setting, level of care or effectiveness, and the requested service is therefore denied, reduced, or terminated.
II. "Ambulatory review" means utilization review of health care services performed or provided in an outpatient setting.
III. "Appeals procedure" means a formal process whereby a covered person, a representative of a covered person, attending physician, facility or health care provider can contest an adverse determination rendered by the health carrier or its designee utilization review organization, which results in the denial, reduction or termination of a requested health care service.
III-a. "Authorized representative" means a person to whom a covered person has given consent to represent the covered person in an external review. Authorized representative may include the covered person's treating provider.
IV. "Case management" means a coordinated set of activities conducted for individual patient management of serious, complicated, protracted or other health conditions.
V. "Certification" means a determination by a health carrier or its designee utilization review organization that an admission, availability of care, continued stay or other health care service has been reviewed and, based on the information provided, satisfies the health carrier's requirements for medical necessity, appropriateness, health care setting, level of care, and effectiveness.
V-a. "Claim denial" means any of the following: a denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a benefit, including any such denial, reduction, termination, or failure to provide or make payment that is based on a determination of a participant's or beneficiary's eligibility to participate in a plan, and including, with respect to group health plans, a denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a benefit resulting from the application of any utilization review, as well as a failure to cover an item or service for which benefits are otherwise provided because it is determined to be experimental or investigational or not medically necessary or appropriate.
V-b. "Claim involving urgent care" means any claim for medical care or treatment with respect to which the application of the time periods for making non-urgent care determinations:
(a) Could seriously jeopardize the life or health of the claimant or the ability of the claimant to regain maximum function; or
(b) In the opinion of a physician with knowledge of the claimant's medical condition, would subject the claimant to severe pain that cannot be adequately managed without the care or treatment that is the subject of the claim.
V-c. "Claimant's representative" shall mean an individual authorized by a claimant in writing to pursue a claim or appeal on the claimant's behalf.
VI. "Clinical peer" means a physician or other health care professional who holds a non-restricted license in a state of the United States and in the same or similar specialty as typically manages the medical condition, procedure or treatment under review. A "clinical peer" includes a health care professional who has demonstrable expertise to review a case, whether or not the reviewing professional is in the same or a similar specialty as the health care professional who made the initial decision.
VII. "Clinical review criteria" means the written screening procedures, decision abstracts, clinical protocols, and practice guidelines used by the health carrier to determine the necessity and appropriateness of health care services.
VIII. "Commissioner" means the insurance commissioner.
IX. "Concurrent hospital review" means utilization review conducted during a patient's inpatient stay or course of treatment.
X. "Consumer" means someone in the general public who may or may not be a covered person or a purchaser of health care including employers.
X-a. "Contracted pharmacy" or "pharmacy" means a pharmacy participating in the network of a pharmacy benefit manager through a direct contract or through a contract with a pharmacy services administration organization or group purchasing organization.
XI. "Covered benefits" or "benefits" means those health care services to which a covered person is entitled under the terms of a health benefit plan.
XII. "Covered person" means a policyholder, subscriber, enrollee, or other individual participating in a health benefit plan.
XIII. "Credentialing verification" is the process of obtaining and verifying information about a health care professional, and evaluating that health care professional, when that health care professional applies to become a participating provider in a managed care plan offered by a health carrier.
XIV. "Discharge planning" means the formal process for determining, prior to discharge from a facility, the coordination and management of the care that a patient receives following discharge from a facility.
XIV-a. "Drug product reimbursement" means the amount paid by a carrier or pharmacy benefit manager to a contracted pharmacy or pharmacist for the cost of the drug dispensed to a patient and does not include a dispensing or professional fee.
XV. "Emergency medical condition" means the sudden and, at the time, unexpected onset of a health condition that requires immediate medical attention such that a prudent layperson with average knowledge of health and medicine could reasonably expect that failure to provide medical attention could result in serious impairment to bodily functions or serious dysfunction of a bodily organ or part, or could place the person's health in serious jeopardy.
XVI. "Emergency services" means health care services that are provided to an enrollee, insured, or subscriber in a licensed hospital emergency facility by a provider after the sudden onset of a medical condition that manifests itself by symptoms of sufficient severity that a prudent layperson with average knowledge of health and medicine could reasonably expect that the absence of immediate medical attention could result in any of the following:
(a) Serious jeopardy to the patient's health.
(b) Serious impairment to bodily functions.
(c) Serious dysfunction of any bodily organ or part.
XVII. "Facility" means an institution providing health care services or a health care setting, including but not limited to hospitals and other licensed inpatient centers, ambulatory surgical or treatment centers, skilled nursing centers, residential treatment centers, diagnostic, laboratory and imaging centers, and rehabilitation and other therapeutic health settings.
XVIII. "Grievance" means a written complaint submitted by or on behalf of a covered person regarding the:
(a) Availability, delivery, or quality of health care services, including a complaint regarding an adverse determination made pursuant to utilization review;
(b) Claims payment, handling, or reimbursement for health care services; or
(c) Matters pertaining to the contractual relationship between a covered person and a health carrier.
XIX. "Health benefit plan" means a policy, contract certificate or agreement entered into, offered or issued by a health carrier to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.
XX. "Health care professional" means a physician or other health care practitioner licensed, accredited, or certified to perform specified health services consistent with state law.
XXI. "Health care provider" or "provider" means a health care professional or facility.
XXII. "Health care services" or "health services" means services for the diagnosis, prevention, treatment, cure or relief of a health condition, illness, injury or disease.
XXIII. "Health carrier" means an entity subject to the insurance laws and rules of this state, or subject to the jurisdiction of the commissioner, that contracts or offers to contract to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services, including an insurance company, a health maintenance organization, a health service corporation, or any other entity providing a plan of health insurance, health benefits, or health services.
XXIII-a. "Independent review organization" means an entity that employs or contracts with clinical peers to conduct independent external reviews of health carrier determinations.
XXIV. "Intermediary" means a person authorized to negotiate and execute provider contracts with health carriers on behalf of health care providers or on behalf of a network.
XXV. "Managed care plan" means a health benefit plan that either requires a covered person to use, or creates incentives, including financial incentives, for a covered person to use health care providers managed, owned, under contract with, or employed by the health carrier.
XXV-a. "Medical director" means a physician licensed under RSA 329 and employed by a health carrier or medical utilization review entity who is responsible for the utilization review techniques and methods of the health carrier or medical utilization review entity and their administration and implementation.
XXV-b. "Medical necessity" means health care services or products provided to an enrollee for the purpose of preventing, stabilizing, diagnosing, or treating an illness, injury, or disease or the symptoms of an illness, injury, or disease in a manner that is:
(a) Consistent with generally accepted standards of medical practice;
(b) Clinically appropriate in terms of type, frequency, extent, site, and duration;
(c) Demonstrated through scientific evidence to be effective in improving health outcomes;
(d) Representative of "best practices" in the medical profession; and
(e) Not primarily for the convenience of the enrollee or physician or other health care provider.
XXVI. "Network" means the group of participating providers providing services to a managed care plan.
XXVII. "Participating provider" means a provider who, under a contract with the health carrier or with its contractor or subcontractor, has agreed to provide health care services to covered persons with an expectation of receiving payment, other than coinsurance, copayments, or deductibles, directly or indirectly from the health carrier.
XXVIII. "Person" means an individual, a corporation, a partnership, an association, a joint venture, a joint stock company, a trust, an unincorporated organization, any similar entity or any combination of the foregoing.
XXVIII-a. "Pharmacy benefits manager" means "pharmacy benefits manager" as defined in RSA 402-N:1, VIII.
XXVIII-b. "Pre-service claim" means any claim for a benefit under a health plan with respect to which the terms of the plan condition receipt of the benefit, in whole or in part, on approval of the benefit in advance of obtaining medical care. "Pre-service claim" shall not include a request for reimbursement made by a provider pursuant to the terms of an agreement between the provider and the health carrier.
XXVIII-aa. "Post-service claim" means any claim for a health benefit to which the terms of the plan do not condition receipt of the benefit, in whole or in part, on approval of the benefit in advance of obtaining the medical care or disability benefit. "Post-service claim" shall not include a request for reimbursement made by a provider pursuant to the terms of an agreement between the provider and the health carrier.
XXIX. "Prospective review" means utilization review conducted prior to an admission or a course of treatment.
XXX. "Quality assessment" means the measurement and evaluation of the quality and outcomes of medical care provided to individuals, groups, or populations.
XXXI. "Quality improvement" means the effort to improve the processes and outcomes related to the provision of health care services within the health benefit plan.
XXXII. "Retrospective review" means a review of medical necessity conducted after services have been provided to a patient, but does not include a claims settlement process including an evaluation of reimbursement levels, veracity of documentation, accuracy of coding, adjudication for payment, or whether a service is a covered benefit under the plan.
XXXIII. "Second opinion" means an opportunity or requirement to obtain a clinical evaluation by a provider other than the one originally making a recommendation for a proposed health service to assess the clinical necessity and appropriateness of the initial proposed health service.
XXXIV. "Utilization review" means a set of formal techniques designed to monitor the use of or evaluate the clinical necessity, appropriateness, efficacy, or efficiency of health care services procedures, providers, or facilities. Techniques and methods may include ambulatory care review, case management, concurrent hospital review, discharge planning, prehospital admission certification, preinpatient service eligibility certification, prospective review, second opinion, or retrospective review.
XXXV. "Utilization review entity" means an entity, subject to licensure pursuant to RSA 420-E, that conducts utilization review, other than a health carrier performing review for its own health plans.
Source. 1997, 345:1; 345:10. 2000, 18:4, 11, 12. 2001, 207:10, 11, 14. 2003, 175:8. 2007, 33:1. 2014, 150:1, eff. Aug. 15, 2014. 2016, 177:1, 2, eff. Jan. 1, 2017. 2018, 356:6, 7, eff. July 1, 2018. 2019, 320:4, eff. Jan. 1, 2020.
420-J:3-a Access to Enhanced 911 System.
I. No health benefit plan issued or renewed after July 7, 2000 shall contain any provision which establishes or promotes an emergency medical response or transportation system that encourages or directs access by a covered person in competition with or in substitution of the state enhanced 911 system or other state, county, or local government emergency medical services system.
II. Notwithstanding paragraph I, a health carrier subject to this chapter may use transportation outside the enhanced 911 or other government emergency medical services system for services that are not in response to an emergency medical condition, as defined in RSA 420-J:3, XV.
III. No health benefit plan issued or renewed after July 7, 2000 shall contain any provision requiring a covered person to obtain prior authorization before accessing the enhanced 911 system or other state, county, or local government emergency medical services system for response and/or transportation for emergency services, as defined in RSA 420-J:3, XVI.
IV. No person who issues a health benefit plan subject to this chapter shall use false or misleading language in its enrollment sales materials or in any other materials provided to covered persons to discourage or prohibit covered persons from accessing the enhanced 911 system for response and/or transportation for emergency services.
Source. 2000, 104:2, eff. July 7, 2000.
420-J:3-b Pre-certification Requirement.
In the event that a person is covered by more than one plan that requires pre-certification, the member shall obtain pre-certification from the primary plan. Although the member shall not be required to obtain pre-certification from the secondary plan, the secondary plan shall not be required to treat such services as covered services if the services do not meet its certification criteria. The secondary plan shall not refuse payment for such services solely on the basis that the services were not pre-certified by the secondary plan.
Source. 2007, 289:26, eff. Jan. 1, 2008.
420-J:4 Credentialing Verification Procedures.
I. A health carrier shall:
(a) Establish written policies and procedures for credentialing verification of all health care professionals with whom the health carrier contracts and apply these standards consistently.
(b) Verify the credentials of a health care professional. Prior to completion of credentialing verification the health carrier shall:
(1) Allow a health care provider who, at the time of submission of a clean and complete application, has a valid license from the respective state licensing board and has been credentialed by the hospital, if appropriate, to deliver health care services to covered persons when covering on-call for another health care provider who is credentialed by the carrier.
(2) Allow a health care provider to deliver health care services to covered persons when that health care provider has a valid license from the respective state licensing board and has been credentialed by the hospital, if appropriate, and who at the time of submission of a clean and complete application is credentialed by the health carrier in another state or is in the health carrier's New Hampshire network based on employment with a particular health care entity. When a health care provider relocates or opens an additional office and the carrier requires a site visit, documentation of the new site evaluation shall be required as part of the credentialing process. The medical director of the health carrier or other designated health care professional shall have responsibility for, and shall participate in, health care professional credentialing verification.
(c) Establish a credentialing verification committee consisting of licensed physicians and other health care professionals to review credentialing verification information and supporting documents and make decisions regarding credentialing verification.
(d) Make available for review by the applying health care professional upon written request all application and credentialing verification policies and procedures.
(e) Retain records and documents relating to a health care professional's credentialing verification process for 7 years.
(f) Keep confidential all information obtained in the credentialing verification process, except as otherwise provided by law.
(g) Notify a health care provider that a submitted credentialing application is incomplete, not later than 15 business days after receiving the credentialing application.
(h) Act upon and finalize the credentialing process within 30 calendar days for primary care physicians and 45 days for specialists of receipt of a clean and complete application. In this section, "clean and complete" means an application signed and appropriately dated by the health care provider, that includes all of the applicable information required in paragraph II and any affirmative responses on questions related to quality and clinical competence shall contain explanations satisfactory to the carrier.
(i) An applicant's rights under this section and under RSA 420-J:8-c shall terminate upon denial of the credentialing application by the health carrier or if the applicant decides not to contract with the health carrier.
II. A health carrier shall obtain verification of at least the following information about the applicant:
(a) Graduation from health care professional school.
(b) Completion of post graduate training (if applicable).
(c) The health care professional's license history in this and all other states.
(d) The health care professional's malpractice history.
(e) The health care professional's practice history.
(f) Current license, certificate of authority, or registration to practice a health care profession in New Hampshire.
(g) Current level of professional liability coverage (if applicable).
(h) Status of hospital privileges (if applicable).
(i) Specialty board certification status (if applicable).
(j) Current Drug Enforcement Agency (DEA) registration certificate (if applicable).
III. A health carrier shall thereafter obtain, at least every 3 years, verification of a participating provider's:
(a) Current license, certificate of authority or registration to practice a health care profession in New Hampshire.
(b) Current level of professional liability coverage (if applicable).
(c) Status of hospital privileges (if applicable).
(d) Current DEA registration certificate (if applicable).
(e) Specialty board certification status (if applicable).
IV. A health carrier shall require all participating providers to notify the health carrier of changes in the status of any items listed in this section at any time, and shall identify for participating providers the individual or department to whom they should report such changes.
V. Whenever a health carrier contracts to have another entity perform the credential verification functions required by this section or applicable rules, the commissioner shall hold the health carrier responsible for monitoring the activities of the entity with which it contracts and for ensuring that the requirements of this section and applicable rules are met.
VI. Nothing in this section shall be construed to require a health carrier to select a health care professional as a participating provider solely because the health care professional meets the health carrier's credentialing verification standards, or to prevent a health carrier from utilizing separate or additional criteria in selecting the health care professionals with whom it contracts.
Source. 1997, 345:1. 2002, 207:41. 2007, 98:1, eff. Aug. 10, 2007.
420-J:4-a Facility Credentialing.
I. Health carriers shall credential qualified entities administering community mental health programs as defined under RSA 135-C:7, entities administering community substance use disorder treatment programs as defined under RSA 172:2-c, and community health centers as facilities when paneling and enrolling participating providers, consistent with health carriers' facility credentialing standards and practices, unless the entity requests professional level credentialing. Health carriers shall not be required to credential entities who do not meet the health carriers' facility credentialing eligibility standards. If an entity disagrees with the outcome of a health carrier's application of its facility credentialing standards and practices, the entity may request a formal hearing and review of the carrier's decision by the New Hampshire insurance department pursuant to RSA 400-A:17 and/or file a complaint with the New Hampshire insurance department's health care provider complaint process.
II. Nothing in this section shall be construed to require a health carrier to select or enroll a specific facility as a participating provider.
Source. 2021, 183:9, eff. Sept. 9, 2021.
420-J:5 Grievance Procedures.
Every carrier or other licensed entity shall establish and shall maintain a written procedure by which a claimant or a representative of the claimant, shall have a reasonable opportunity to appeal a claim denial to the carrier or other licensed entity, and under which there shall be a full and fair review of the claim denial. The written procedure filed with the insurance department shall include all forms used to process an appeal.
I. Full and fair review shall require that:
(a) The persons reviewing the grievance shall not be the same person or persons making the initial determination, and shall not be subordinate to or the supervisor of the person making the initial determination;
(b) For medical necessity appeals at least one person reviewing the appeal is a practitioner in the same or similar specialty who typically treats the medical condition, performs the procedure, or provides the treatment at issue in the appeal. A practitioner is considered of the same specialty if he or she has similar credentials and licensure as those who typically treat the condition or health problem in question in the appeal. A practitioner is considered of a similar specialty if he or she has experience treating the same problems as those in question in the appeal, in addition to expertise treating similar complications of those problems;
(c) The claimant shall have at least 180 days following receipt of a notification of a claim denial to appeal;
(d) The claimant shall have an opportunity to submit written comments, documents, records, and other information relating to the claim without regard to whether those documents or materials were considered in making the initial determination;
(e) The claimant shall be provided upon request, and without charge, reasonable access to, and copies of all documents, records, and other information relevant to or considered in making the initial adverse claim determination; and
(f) The review shall be a de novo proceeding and shall consider all information, documents, or other material submitted in connection with the appeal without regard to whether the information was considered in making the denial.
II. In the appeal of a claim denial that is based in whole or in part on a medical judgment:
(a) The review shall be conducted by or in consultation with a health care professional in the same or similar specialty who typically treats the medical condition, performs the procedure, or provides the treatment at issue in the appeal. A practitioner is considered of the same specialty if he or she has similar credentials and licensure as those who typically treat the condition or health problem in question in the appeal. A practitioner is considered of a similar specialty if he or she has experience treating the same problems as those in question in the appeal, in addition to expertise treating similar complications of those problems;
(b) The titles and qualifying credentials of the person conducting the review shall be included in the decision; and
(c) The identity and qualifications of any medical or vocational expert whose advice was considered, without regard to whether it was relied upon in making the initial claim denial, shall be made available to the claimant upon request.
III. In the appeal of a claim for urgent care, a claim involving a matter that would seriously jeopardize the life or health of a covered person or would jeopardize the covered person's ability to regain maximum function, or a claim concerning an admission, availability of care, continued stay or health care service for a person who has received emergency services, but who has not been discharged from a facility, an expedited appeal process shall be made available which shall provide for:
(a) The submission of information by the claimant to the carrier by telephone, facsimile, or other expeditious method; and
(b) The determination of the appeal not more than 72 hours after the submission of the request for appeal.
IV. Timing and Notification for Determination on Appeal
(a) In the case of nonexpedited appeal of a pre-service claim or post-service claim, the determination on appeal shall be made within a reasonable time appropriate to the medical circumstances, but in no event more than 30 days after receipt by the carrier or other licensed entity of the claimant's appeal.
(b) In the case of an expedited appeal related to an urgent care claim, a carrier or other entity shall make a decision and notify the covered person as expeditiously as the covered person's medical condition requires, but in no event more than 72 hours after the appeal is filed. If the expedited review involves ongoing urgent care services, the service shall be continued without liability to the covered person until the covered person has been notified of the determination. A carrier or other licensed entity shall provide written confirmation of its decision concerning an expedited review within 2 business days of providing notification of that decision, if the initial notification was not in writing.
(c) The period of time within which a decision shall be rendered on appeal shall begin to run at the time the appeal is filed in accordance with the appeal procedures of the carrier or other licensed entity, without regard to whether all the information necessary to make a determination on appeal is contained in the filing. In the event the claimant fails to submit information necessary to decide the appeal, the period for making the determination on appeal shall be tolled from the date the claimant is notified in writing of precisely what is required until the date the claimant responds to the request. The carrier or other licensed entity shall provide notification of incompleteness as soon as possible; but in no event more than 24 hours after the filing of the appeal in appeals involving urgent care. In the event that the claimant fails, within a 45-day period from the date of notification, to provide sufficient information, the carrier may deny the appeal on the basis of incompleteness. The appeal may be reopened upon receipt of the required information.
V. Manner and Content of Notification of Determination on Appeal. The carrier or other licensed entity shall provide a claimant with a written determination of the appeal.
(a) Where a decision is made to uphold, in whole or in part, the denial of benefits, the written determination of appeal shall include:
(1) The specific reason or reasons for the determination, including reference to the specific provision, rule, protocol, or guideline on which the determination is based;
(2) A statement that the rule, protocol, or guideline governing the appeal will be provided without charge to the claimant upon request;
(3) A statement describing all other dispute resolution options available to the claimant, including, but not limited to other options for internal review and options for external review and options for bringing a legal action;
(4) A statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits;
(5) If an internal rule, guideline, protocol, or other similar criterion was relied upon in making the claim denial, either the specific rule, guideline, protocol, or other similar criterion; or a statement that such rule, guideline, protocol, or other similar criterion was relied upon in making the claim denial and that a copy of the rule, guideline, protocol, or other similar criterion will be provided free of charge to the claimant upon request;
(6) If the claim denial 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 denial, 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;
(7) If the appeal involves an adverse determination, a copy of the notice of the right to external review that includes the specific requirements for filing an external review; and
(8) A statement describing the claimant's right to contact the insurance commissioner's office for assistance which shall include the toll-free telephone number and address of the commissioner.
(b) A carrier or other licensed entity that offers group health plans, employee benefit plans, or disability plans shall file annually with the commissioner, as part of its annual report required by RSA 420-J:5, V(g), a certificate of compliance stating that the carrier or other licensed entity has established and maintained, for each of its health benefit plans, grievance procedures that fully comply with the provisions of this chapter. Material modifications to the procedure shall be filed with the commissioner prior to becoming effective.
(c) A carrier or other licensed entity that offers group health plans, employee benefit plans, or disability plans shall maintain written records documenting all grievances and appeals received during a calendar year, a general description of the reason for the appeal or grievance, the name of the claimant, the dates of the appeal or grievance and the date of resolution.
(d) A carrier or other licensed entity that offers group health plans, employee benefit plans, or disability plans shall provide to consumers:
(1) A description of the internal grievance procedure required under RSA 420-J:5 for claim denials and other matters and a description of the process for obtaining external review under RSA 420-J:5-a-RSA 420-J:5-e. These descriptions shall be set forth in or attached to the policy, certificate, membership booklet, or other evidence of coverage provided to covered persons.
(2) A statement of a covered person's right to contact the commissioner's office for assistance at any time. The statement shall include the toll-free telephone number and address of the commissioner.
(3) A statement that the carrier or other licensed entity will provide assistance in preparing an appeal of an adverse benefit determination, and a toll-free telephone number to contact the carrier or other licensed entity.
(e)(1) If a carrier or other licensed entity provides 2 mandatory levels of appeal, the first level shall be completed within 15 days and the second level completed within the 30-day time period beginning from the initial date of filing the appeal or grievance. If a carrier or other licensed entity provides a single mandatory level of appeal, the single mandatory level shall be completed within the 30-day time period beginning from the initial date of filing the appeal. With respect to a mandatory second level of appeal involving a claim for continuation of services or urgent care, the carrier or other licensed entity shall make a decision and notify the claimant within 72 hours after the mandatory second level appeal is filed. For appeals involving post-service claims, the carrier shall make a decision and notify the claimant within 60 days of the date the completed appeal was filed.
(2) Subparagraph (e)(1) shall not prohibit a carrier or other licensed carrier from offering additional voluntary levels of appeal in addition to any mandatory levels of appeal offered, provided that:
(A) The claimant may elect to pursue any additional level of appeal under this subparagraph voluntarily;
(B) A carrier may not assert failure to exhaust administrative remedies where a claimant elects to pursue a claim through other venues rather than through the voluntary level of appeal;
(C) Any statute of limitations or time limits to pursue other remedies shall be tolled during the voluntary appeals process;
(D) Voluntary levels of appeal are available only after a claimant has completed required mandatory levels of appeal required under the plan or by regulation;
(E) The carrier provides a claimant with sufficient information to make an informed decision whether to submit the claim through any voluntary appeals process;
(F) No fees or costs are imposed on the claimant as part of any voluntary appeals process; and
(G) Any voluntary level of appeal requested by a claimant under this subparagraph shall be completed within 30 days from the date of the request for the voluntary appeal.
(f) Annual reports shall be made to the insurance commissioner regarding plan complaints, adverse determinations, claim denials, and prior authorization statistics in such form and containing such information as the commissioner may prescribe by rule or otherwise.
(g) If the claimant has filed an appeal and the carrier or other licensed entity has not issued a decision within the required time frames, the carrier or other licensed entity shall promptly provide the claimant with a statement of the claimant's right to file an external appeal as provided in RSA 420-J:5-a-RSA 420-J:5-e. The statement of appeal rights shall include a description of the process for obtaining external review of a determination, a copy of the written procedures governing external review, including the required time frames for requesting external review, and notice of the conditions under which expedited external review is available.
VI. In an appeal of a claim denial or other matter, the claimant may authorize a representative to pursue a claim or an appeal by submitting a written statement to the carrier or other licensed entity that acknowledges the representation.
VII. No fees or costs shall be assessed against a claimant related to a request for a grievance or appeal.
Source. 1997, 345:1. 2000, 18:6-10, 17. 2001, 207:12. 2003, 175:9, 10. 2005, 248:9, 10, 20. 2007, 289:27, 28, eff. Jan. 1, 2008.
420-J:5-a Right to External Review.
I. A covered person shall have the right to independent external review of a determination by a health carrier or its designee utilization review entity when all of the following conditions apply:
(a) The subject of the request for external review is an adverse determination;
(b) The covered person has completed the internal review procedures provided by the carrier or other licensed entity pursuant to RSA 420-J:5, or the carrier or other entity has agreed to submit the determination to independent external review prior to completion of internal review, or the covered person has requested first or second level, standard or expedited review and has not received a decision from the carrier or other licensed entity within the required time frames;
(c)(1) The covered person or the covered person's authorized representative has submitted the request for external review in writing to the commissioner within 180 days of the date of the carrier or other licensed entity's denial decision provided pursuant to RSA 420-J:5, or if the carrier or other licensed entity has failed to make a first or second level, standard or expedited review decision that is past due, within 180 days of the date the decision was due;
(2) The covered person's or covered person's authorized representative's participation in any voluntary level of appeal offered by a carrier or other licensed entity pursuant to RSA 420-J:5, V(e)(2) shall not affect a covered person's ability to submit a request for external review. In the event that a covered person or covered person's authorized representative elects to proceed with a voluntary appeal, that person shall have 180 days from the date the decision is rendered on the voluntary appeal to submit a request for external review.
(d) The health carrier determination does not relate to any category of health care services that is excluded from the external review provisions of this chapter pursuant to paragraph II; and
(e) The request for external review is not based on a claim or allegation of provider malpractice, professional negligence, or other professional fault excluded from the external review provisions of this chapter pursuant to paragraph III.
II. Determinations relating to the following health care services shall not be reviewed under this chapter, but shall be reviewed pursuant to the review processes provided by applicable federal or state law:
(a) Health care services provided through Medicaid, the state Children's Health Insurance Program (Title XXI of the Social Security Act), Medicare or services provided under these programs but through a contracted health carrier, except where those services are provided through private insurance coverage pursuant to the New Hampshire granite advantage health care program under RSA 126-AA in which case all provisions of this chapter shall apply.
(b) Health care services provided to inmates by the department of corrections.
(c) Health care services provided pursuant to a health plan not regulated by the state, such as self-funded plans administered by an administrative services organization or third-party administrator or federal employee benefit programs.
III. The external review procedures set forth in this chapter shall not be utilized to adjudicate claims or allegations of health care provider malpractice, professional negligence, or other professional fault against participating providers or medical directors.
Source. 2000, 18:13. 2001, 207:15. 2005, 248:21. 2012, 98:1. 2015, 64:1, eff. Aug. 1, 2015. 2018, 342:17, eff. Dec. 31, 2018.
420-J:5-b Standard External Review.
Standard external review shall be conducted as follows:
I. Within 7 business days after the date of receipt of a request for external review, the commissioner shall complete a preliminary review of the request to determine whether:
(a) The individual is or was a covered person under the health benefit plan;
(b) The determination that is the subject of the request for external review meets the conditions of eligibility for external review stated in RSA 420-J:5-a, I; and
(c) The covered person has provided all the information and forms required by the commissioner that are necessary to process a request for an external review.
II. Upon completion of the preliminary review pursuant to paragraph I, the commissioner shall immediately notify the covered person or the covered person's authorized representative in writing:
(a) Whether the request is complete; and
(b) Whether the request has been accepted for external review.
III. If the request is not complete, the commissioner shall inform the covered person or the covered person's authorized representative what information or documents are needed to make the request complete and to process the request. The covered person or the covered person's authorized representative shall submit such information or documentation within 10 days of being notified that the request was incomplete.
IV. If the request for external review is accepted, the commissioner shall:
(a) Include in the notice provided to the covered person pursuant to paragraph II a statement that if the covered person wishes to submit new or additional information or to present oral testimony via teleconference, such information shall be submitted, and the oral testimony shall be scheduled and presented, within 20 days of the date of issuance of the notice. However, the notice shall also explain that oral testimony shall be permitted only in cases when the commissioner determines, based on evidence provided by the covered person, that it would not be feasible or appropriate to present only written testimony.
(b) Immediately notify the health carrier in writing of the request for external review and its acceptance.
V. If the request for external review is not accepted, the commissioner shall inform the covered person or the covered person's authorized representative and the health carrier in writing of the reason for its non-acceptance.
VI. At the time a request for external review is accepted, the commissioner shall select and retain an independent review organization that is certified pursuant to RSA 420-J:5-d, I to conduct the external review. The commissioner shall not select the same independent review organization for each external review, but shall rotate among the certified independent review organizations, using all organizations equally. The commissioner may select and retain an independent review organization regardless of the rotation if the commissioner determines that the use of such independent review organization is necessary for the fair adjudication of the case in question.
VII. Within 10 days after the date of issuance of the notice provided pursuant to subparagraph IV(b), the health carrier or its designated utilization review organization shall provide to the selected independent review organization and to the covered person all information in its possession that is relevant to the adjudication of the matter in dispute, including but not limited to:
(a) The terms of agreement of the health benefit plan, including the evidence of coverage, benefit summary, or other similar document;
(b) All relevant medical records, including records submitted to the carrier by the covered person, the covered person's authorized representative, or the covered person's treating provider;
(c) A summary description of the applicable issues, including a statement of the health carrier's final determination;
(d) The clinical review criteria used and the clinical reasons for the determination;
(e) The relevant portions of the carrier's utilization management plan;
(f) Any communications between the covered person and the health carrier regarding the internal or external review; and
(g) All other documents, information, or criteria relied upon by the carrier in making its determination.
VIII. Failure by the health carrier or the covered person to provide the documents and information required in paragraph IV(a) or VII within the specified time frame shall not delay the conduct of the external review.
IX. The selected independent review organization shall review all of the information and documents received from the carrier pursuant to paragraph VII and any other information submitted by the covered person or the covered person's authorized representative or treating provider with the request for external review or pursuant to subparagraph IV(a) and any testimony provided . In addition to the information provided by the health carrier and the covered person or the covered person's authorized representative or treating provider, the independent review organization may consider any applicable, generally accepted clinical practice guidelines, studies or research, including those developed or conducted by the federal government, national or professional medical societies, boards, and associations. The independent review organization shall consider anew all previously determined facts, allow the introduction of new information, and make a decision that is not bound by decisions or conclusions made by the health carrier during internal review.
X. The selected independent review organization shall render a decision upholding or reversing the determination of the health carrier and notify the covered person or the covered person's authorized representative and the health carrier in writing within 20 days of the date that any new or additional information from the covered person is due pursuant to subparagraph IV(a). This notice shall include a written review decision that contains a statement of the nature of the grievance, references to evidence or documentation considered in making the decision, findings of fact, and the clinical and legal rationale for the decision, including, as applicable, clinical review criteria and rulings of law.
Source. 2000, 18:13, eff. Sept. 3, 2000.
420-J:5-c Expedited External Review.
Expedited external review shall be conducted as follows:
I. Expedited external review shall be available when the covered person's treating health care provider certifies to the commissioner that adherence to the time frames specified in RSA 420-J:5-b would seriously jeopardize the life or health of the covered person or would jeopardize the covered person's ability to regain maximum function.
II. Except to the extent that it is inconsistent with the provisions of this paragraph, all requirements for the conduct of standard external review specified in RSA 420-J:5-b shall apply to expedited external review. However, a person who meets the standard set forth in paragraph I for expedited external review, as well as the reviewability requirements set forth in RSA 420-J:5-b, I, may pursue expedited external review simultaneous with the internal review process in RSA 420-J:5.
III. At the time the commissioner receives a request for an expedited external review, the commissioner shall immediately make a determination whether the request meets the standard set forth in paragraph I for expedited external review, as well as the reviewability requirements set forth in RSA 420-J:5-b, I. If these conditions are met, the commissioner shall immediately notify the health carrier. If the request is not complete, the commissioner shall immediately contact the covered person or the covered person's authorized representative and attempt to obtain the information or documents that are needed to make the request complete.
IV. The commissioner shall select and retain an independent review organization that is certified pursuant to RSA 420-J:5-d, I to conduct the expedited external review.
V. The health carrier or its designated utilization review organization shall provide or transmit the documents and information specified in RSA 420-J:5-b, VII to the selected independent review organization by telephone, facsimile, or any other available expeditious method within one business day of receiving the commissioner's notice of the request for expedited external review pursuant to paragraph III.
VI. When handling a review on an expedited basis, the selected independent review organization shall make a decision and notify the carrier and the covered person as expeditiously as the covered person's medical condition requires, but in no event more than 72 hours after the expedited external review is requested.
VII. If the notice provided pursuant to paragraph VI was not in writing, within 2 business days after the date of providing that notice, the selected independent review organization shall:
(a) Provide written confirmation of the decision to the covered person or the covered person's authorized representative and the health carrier; and
(b) Include the information set forth in RSA 420-J:5-b, X.
VIII. An expedited external review shall not be provided for determinations made by the health carrier on a retrospective basis.
IX. A covered person shall not be held liable to either the health plan, the hospital, the physician, or the services provider for the cost of services in excess of the applicable copayment, coinsurance, or deductible incurred, pending the independent review organization's determination of an expedited external review.
Source. 2000, 18:13. 2012, 98:2, eff. July 28, 2012.
420-J:5-d Certification of Independent Review Organizations.
I. The certification of independent review organizations shall be conducted as follows:
(a) The commissioner shall certify independent review organizations eligible to be selected to conduct external reviews under this section to ensure that an independent review organization satisfies the minimum qualifications established under paragraph II.
(b) The commissioner shall develop an application form for initially certifying and recertifying independent review organizations to conduct external reviews.
(c) Independent review organizations wishing to be certified shall submit the application form and include all documentation and information necessary for the commissioner to determine whether the independent review organization satisfies the minimum qualifications established under paragraph II.
(d) The commissioner may determine that accreditation by a nationally recognized private accrediting entity with established and maintained standards for independent review organizations that meet or exceed the minimum qualifications established under paragraph II is sufficient for certification under this paragraph.
(e) The commissioner shall maintain and periodically update a list of certified independent review organizations.
(f) Whenever the commissioner determines that an independent review organization no longer satisfies the minimum qualifications established under paragraph II, the commissioner shall terminate the certification of the independent review organization and remove it from the list of certified independent review organizations that is maintained by the commissioner pursuant to subparagraph I(e).
II. To be certified under paragraph I to conduct external reviews, an independent review organization shall meet the following minimum qualifications:
(a) It shall develop and maintain written policies and procedures that govern all aspects of both the standard external review process and the expedited external review process.
(b) It shall establish and maintain a quality assurance program that:
(1) Ensures that external reviews are conducted within the specified time frames and required notices are provided in a timely manner;
(2) Ensures the selection of qualified and impartial clinical peer reviewers to conduct external reviews on behalf of the independent review organization with suitable matching of reviewers to specific cases;
(3) Ensures the confidentiality of medical and treatment records; and
(4) Ensures that any person employed by or under contract with the independent review organization adheres to the requirements of this section.
(c) It shall agree to maintain and provide to the commissioner such information as may be required to fulfill the provisions and purposes of this section.
(d) It shall assign clinical peer reviewers to conduct external reviews who are physicians or other appropriate health care providers and who:
(1) Are experts in the treatment of the covered person's medical condition that is the subject of the external review;
(2) Are knowledgeable about the recommended health care service or treatment through actual clinical experience;
(3) Hold a non-restricted license in a state of the United States and, for physicians, a current certification by a specialty board recognized by the American Board of Medical Specialties in the area or areas appropriate to the subject of the external review;
(4) Have no history of disciplinary actions or sanctions that have been taken or are pending by any hospital, governmental agency, or regulatory body; and
(5) Have agreed to disclose any potential conflict of interest.
(e) It shall be free of any conflict of interest. To meet this qualification, an independent review organization may not own or control or in any way be owned or controlled by a health carrier, a national, state, or local trade association of health carriers, or a national, state, or local trade association of health care providers. In addition, in order to qualify to conduct an external review of a specific case, neither the independent review organization selected to conduct the external review nor any clinical peer reviewer assigned by the independent organization to conduct the external review may have a material professional, familial or financial interest in any of the following:
(1) The health carrier that is the subject of the external review;
(2) Any officer, director, or management employee of the health carrier that is the subject of the external review;
(3) The health care provider or the health care provider's medical group or independent practice association recommending the health care service or treatment that is the subject of the external review;
(4) The facility or institution at which the recommended health care service or treatment would be provided;
(5) The developer or manufacturer of the principal drug, device, procedure, or other therapy being recommended for the covered person whose treatment is the subject of the external review; or
(6) The covered person or the covered person's authorized representative.
(f) Its charges for services provided shall be competitive and reasonable.
(g) It shall be accredited by a nationally recognized accreditation organization to perform external reviews.
(h) For the purpose of allowing in-state health care providers to act as clinical peer reviewers in the conduct of external reviews, the commissioner may determine, in specific cases, that an affiliation with a hospital, an institution, an academic medical center, or a health carrier provider network does not in and of itself constitute a conflict of interest which is sufficient to preclude that provider from acting as a clinical peer reviewer, so long as the affiliation is disclosed to the covered person or the covered person's authorized representative.
(i) The following organizations shall not be eligible for certification to conduct external reviews:
(1) Professional or trade associations of health care providers;
(2) Subsidiaries or affiliates of such provider associations;
(3) Health carrier or health plan associations; and
(4) Subsidiaries or affiliates of health plan or health carrier associations.
Source. 2000, 18:13. 2012, 98:3, eff. July 28, 2012.
420-J:5-e General Provisions Regarding External Review.
I. The health carrier against which a request for external review is filed shall pay the cost of the external review. Except under the circumstances described below in this paragraph, such costs shall not exceed $1,500. The commissioner shall notify the independent review organizations of the cost limitation for conducting an external review. The cost for an external review may exceed $1,500 if the commissioner determines an additional cost is necessary to ensure the fair adjudication of the case in question.
II. The external review decision of the independent review organization shall be binding on the health carrier and shall be enforceable by the commissioner pursuant to the penalty provisions of RSA 420-J:14. The external review decision of the independent review organization shall be binding on the covered person except to the extent the covered person has other remedies available under federal or state law. The external review process shall not be considered an adjudicative proceeding within the meaning of RSA 541-A, and the external review decision of the independent review organization shall not be subject to rehearing and appeal pursuant to RSA 541.
III. An independent review organization shall maintain all standards of confidentiality. The records and internal materials prepared for specific reviews by an independent review organization under this section shall be exempt from public disclosure under RSA 91-A.
IV. An external review organization acting in good faith shall have immunity from any civil or criminal liability or professional discipline as a result of acts or omissions with respect to any external review, unless the acts or omissions constitute willful and wanton misconduct.
V. The right to external review under this chapter shall not be construed to change the terms of coverage under a health benefit plan nor shall the health carrier retaliate against the covered person for exercising his or her right to an independent external review.
VI. When requested by the covered person, the commissioner shall provide consumer assistance in pursuing the internal grievance procedures under RSA 420-J:5 and the external review process under RSA 420-J:5-a-420-J:5-e.
VII. The commissioner shall report annually to the governor and the legislature on the number of grievances subjected to external review, the number of decisions resolved wholly or partially in favor of the covered person, and the number of decisions resolved wholly or partially in favor of the health carrier. Such reports shall also include a separate statement of the number of cases in which the external review was terminated as a result of a reversal by the health carrier of its adverse determination after the receipt of new or additional information from the covered person or the covered person's authorized representative and the number of cases in which the covered person and the health carrier agreed to resolve the dispute prior to a final determination by the independent review organization.
VIII. If, based on the evidence presented during the external review process, the commissioner determines that the health carrier's medical director, in the conduct of his or her duties, may have committed misconduct as set forth in RSA 329:17, VI, the commissioner shall document such findings and transmit them in a separate report to the board of medicine.
Source. 2000, 18:13, eff. Sept. 3, 2000.
420-J:6 Utilization Review.
I. Each health carrier which does not contract with a utilization review entity shall establish written procedures for carrying out its utilization review processes and shall file such procedures with the commissioner on or before April 1 of each year. Such carriers shall conform to the standards of either the Utilization Review Accreditation Commission or the National Committee for Quality Assurances and are subject to all applicable rules issued pursuant to RSA 420-E:7.
II. The written procedures shall describe the categories of health care personnel that perform utilization review activities and whether or not such individuals are licensed in this state, and shall address at a minimum, second opinion programs; prehospital admission certification; preinpatient service eligibility certification; and concurrent hospital review to determine appropriate length of stay; as well as the process used by the health carrier to preserve confidentiality of medical information.
III. Notification of claim denial shall be made within the following time periods:
(a) The determination of a claim involving urgent care shall be made as soon as possible, taking into account the medical exigencies, but in no event later than 72 hours after receipt of the claim, unless the claimant or claimant's representative fails to provide sufficient information to determine whether, or to what extent, benefits are covered or payable. In the case of such failure, the licensee shall notify the claimant or claimant's representative within 24 hours of receipt of the claim and shall advise the claimant or claimant's representative of the specific information necessary to determine the claim. The claimant or claimant's representative shall be afforded a reasonable amount of time, taking into account the circumstances, but not less than 48 hours, to provide the specified information. Thereafter, notification of the benefit determination shall be made as soon as possible, but in no case later than 48 hours after the earlier of (1) the licensee's receipt of the specified additional information, or (2) the end of the period afforded the claimant or claimant's representative to provide the specified additional information.
(b) The determination of a claim involving urgent care and relating to the extension of an ongoing course of treatment and involving a question of medical necessity shall be made within 24 hours of receipt of the claim, provided that the claim is made at least 24 hours prior to the expiration of the prescribed period of time or course of treatment.
(c) The determination of all other claims for preservice benefits shall be made within a reasonable time period appropriate to the medical circumstances, but in no event more than 15 days after receipt of the claim. This period may be extended one time by the licensee for up to 15 days, provided that the licensee both determines that such an extension is necessary due to matters beyond the control of the licensee and notifies the claimant or claimant's representative, prior to the expiration of the initial 15-day period, of the circumstances requiring the extension of time and the date by which the licensee expects to render a decision. If such an extension is necessary due to a failure of the claimant or claimant's representative to provide sufficient information to determine whether, or to what extent, benefits are covered as payable, the notice of extension shall specifically describe the required additional information needed, and the claimant or claimant's representative shall be given at least 45 days from receipt of the notice within which to provide the specified information. Notification of the benefit determination following a request for additional information shall be made as soon as possible, but in no case later than 15 days after the earlier of (1) the licensee's receipt of the specified additional information, or (2) the end of the period afforded the claimant or claimant's representative to provide the specified additional information.
(d) The determination of a post service claim shall be made within 30 days of the date of filing. In the event the claimant fails to provide sufficient information to determine the claim, the carrier shall notify the claimant within 15 days as to what additional information is required to process the claim and the claimant shall be given at least 45 days to provide the required information. The 30-day period for claim determination shall be tolled until such time as the claimant submits the required information.
IV. All contracts with utilization review entities shall be available to the commissioner upon request.
V. Each health carrier that conducts utilization review shall employ a medical director who shall have responsibility for all utilization review techniques and methods and their administration and implementation. Nothing in this section shall be construed to preclude a medical director from consulting with or relying on the advice of a physician licensed in this state or any other state. Nothing in this section shall be construed as creating any civil liability to the medical director for the medical director's alleged negligent performance of the aforementioned responsibilities for utilization review.
VI. The clinical review criteria used by the health carrier or its designee utilization review entity shall be:
(a) Developed with input from appropriate actively practicing practitioners in the health carrier's service area;
(b) Updated at least biennially and as new treatments, applications, and technologies emerge;
(c) Developed in accordance with the standards of national accreditation entities;
(d) Based on current, nationally accepted standards of medical practice; and
(e) If practicable, evidence-based.
Source. 1997, 345:1. 2000, 18:5, 15. 2001, 207:13. 2003, 276:11, eff. July 1, 2003.
420-J:6-a Obstetrical-Gynecological Coverage.
I. Health plans shall not require prior authorization by a covered person's primary care provider for coverage of the following services provided by participating providers who specialize in obstetrics and gynecology:
(a) Maternity care;
(b) An annual gynecological visit; and
(c) Follow-up care for obstetrical or gynecological conditions identified during such maternity care or annual gynecological visit.
II. Health plans may establish reasonable requirements for participating obstetricians and gynecologists to communicate with the covered person's primary care provider regarding the covered person's condition, treatment, and any need for follow-up care.
Source. 1998, 319:1, eff. Jan. 1, 1999.
420-J:6-b Self-Referrals for Chiropractic Care.
A health benefit plan under this chapter offering chiropractic benefits shall provide benefits to a covered person who utilizes services of a chiropractic provider (doctor of chiropractic) by self-referral for 12 visits under the following conditions:
I. Unless otherwise provided for by the health benefits plan, self-referral visits shall not apply to wellness care visits.
II. A covered person may utilize the services of a doctor of chiropractic as defined in RSA 316-A, without discrimination relative to access and fees, subject to the terms and conditions of the policy.
III. The health benefit plan shall fully disclose to the certificate holder in clear and understandable language the exact terms and conditions of each option that the certificate holder has purchased along with the co-payments or other cost-sharing features of each option.
IV. Within 10 working days of the first visit or consultation, the doctor of chiropractic shall send to the health benefit plan, or its designee, the chiropractic case findings. This shall be sufficient documentation for the initial 12 visits.
V. After 12 self-referral visits, a covered person who is continuing chiropractic care may be subject to utilization review from the health plan, or its designee, for the purpose of continued care. A provider of the same specialty shall be consulted when making any utilization review determination under this section.
VI. If the chiropractic provider recommends care beyond 12 visits, the participating doctor of chiropractic shall send to the insurer, or its designee, documentation containing information on the covered person's progress and necessity of care as well as a care plan for extended chiropractic care. The care recommendation shall be deemed authorized if the health benefit plan does not respond to the care recommendation within 7 business days. If the doctor of chiropractic fails to provide the required documentation, the insured or its covered person shall not be liable to the chiropractic provider for any unpaid fees.
VII. The covered person shall retain the right to choose chiropractic care on an elective, self-pay, fee-for-service basis; no entity regulated under this chapter shall prohibit a doctor of chiropractic from continuing care on an elective, self-pay, fee-for-service basis.
VIII. Nothing in this section is intended to limit the health plan's ability to credential providers or structuring with network providers.
Source. 2000, 14:1, eff. April 18, 2000.
420-J:6-c Third-Party Payment of Covered, Court-Ordered Services.
The existence of a court order under RSA 169-B, RSA 169-C, or RSA 169-D for a service, program, or placement that is covered under any insurance for the minor shall not be considered in determining qualification for third-party payment under such insurance. Benefits for such services shall be subject to the same dollar limits, deductibles, co-payments and co-insurance factors and to the terms and conditions of the policy or certificate, including any managed care provisions. However, the claimant or claimant's representative shall have 48 hours from the commencement of a court-ordered service, placement, or program to seek any pre-authorization, pre-certification, or referral required under the terms of the policy. The determination of these preservice claims for court-ordered services for a minor shall be made as soon as possible, taking into account the medical exigencies, but in no event later than 48 hours after receipt of the request and sufficient information, unless the claimant or claimant's representative fails to provide sufficient information to determine whether, or to what extent, benefits are covered or payable. In the case of such failure, the insurer shall notify the claimant or claimant's representative within 24 hours of receipt of the request and shall advise the claimant or claimant's representative of the specific information necessary to determine to what extent benefits are covered or payable. The claimant or claimant's representative shall be afforded a reasonable amount of time, taking into account the circumstances, but not less than 48 hours, to provide the specified information. Thereafter, notification of the claim determination shall be made as soon as possible, but in no case later than 48 hours after the earlier of:
I. The insurer's receipt of the specified additional information; or
II. The end of the period afforded the claimant or claimant's representative to provide the specified additional information.
Source. 2004, 117:4, eff. Aug. 15, 2004.
420-J:6-d Coverage for Dependents.
If the coverage for dependent children includes coverage for dependent children who are full-time students, as defined by the appropriate educational institution, beyond the age of 18, such dependent coverage shall include coverage for a dependent's medically necessary leave of absence from school for a period not to exceed 12 months or the date on which coverage would otherwise end pursuant to the terms and conditions of the policy, whichever comes first. Any breaks in the school semester shall not disqualify the dependent child from coverage under this section. Documentation and certification of the medical necessity of a leave of absence shall be submitted to the insurer by the student's attending physician and shall be considered prima facie evidence of entitlement to coverage under this section. The date of the documentation and certification of the medical necessity of a leave of absence shall be the date the insurance coverage under this section commences.
Source. 2007, 289:29, eff. Jan. 1, 2008.
420-J:6-e Coverage for Medically Necessary Dental Services.
Health carriers shall provide coverage for medically necessary dental services resulting from an accidental injury to sound natural teeth and gums when the course of treatment for the accidental injury is received or authorized within 3 months of the date of the injury. Treatment made necessary due to injury to the jaw and oral structures other than teeth shall be covered without time limit. Coverage under this section shall be subject to such other terms and conditions of the policy that may apply.
Source. 2019, 113:3, eff. Aug. 20, 2019.
420-J:7 Network Adequacy.
I. A health carrier shall maintain a network that is sufficient in numbers, types, and geographic location of providers to ensure that all services to covered persons will be accessible without unreasonable delay.
II. The commissioner shall adopt rules under RSA 541-A for a health carrier's network adequacy. Such rules shall establish, but not be limited to:
(a) Waiting times for appointments for non-emergency care.
(b) Choice of and access to providers for specialty care, specifically addressing the needs of the chronically ill, mentally ill, persons with substance use disorder, developmentally disabled or those with a life threatening illness.
(c) Standards for geographic accessibility, which shall include standards for access to the provision of durable medical equipment requiring a prescription. However, such standards shall not restrict an insurer's ability to provide prescriptions for durable medical equipment that are shipped to the patient by postal service or other common or private carrier, and shall not apply to durable medical equipment devices used exclusively for the administration of medication.
(d) Hours of operation for the carrier, including any entities performing prior approval or pre-authorization functions.
(e) Standards for addressing in-network access to hospital based providers, such as anesthesiologists, radiologists, pathologists, and emergency medicine physicians.
III. The health carrier shall keep, at its place of business, a detailed description of the health carrier's compliance with rules adopted pursuant to RSA 420-J:7, II as well as its procedures for monitoring network adequacy.
IV. Annually, the health carrier shall submit a report to the commissioner demonstrating compliance with the rules for network adequacy.
V. The commissioner shall provide a report annually on the findings associated with network adequacy review to the chairpersons of the house and senate committees having jurisdiction over insurance issues.
Source. 1997, 345:1. 2008, 311:1, eff. Aug. 31, 2008. 2017, 214:1, eff. Jan. 1, 2018. 2018, 356:3, 4, eff. July 1, 2018.
420-J:7-a Repealed by 2007, 33:2, eff. July 13, 2007.
420-J:7-b Prescription Drugs.
I. (a) Every health benefit plan that provides prescription drug benefits is required to provide prospective enrollees, and covered persons, a description of the prescription drug benefit plan. Among the specific items that shall be included in the description are:
(1) The procedure a covered person must follow to obtain drugs and medications that are subject to a plan list or plan formulary.
(2) A description of the drug formulary and the plan's exception process.
(3) A description of the extent to which a covered person will be reimbursed for the cost of a drug that is not on a plan list or formulary.
(b) Health carriers shall provide upon request additional information to covered persons related to specific drugs that are not on the formulary.
II. Every health benefit plan that provides prescription drug benefits shall maintain an expeditious exception process, not to exceed 48 hours, by which covered persons may obtain coverage for a medically necessary nonformulary prescription drug or for a nonformulary prescription drug that was available during the previous 12 months. The exception process shall begin when the prescribing provider has submitted a request with a clinical rationale for the exception to the health benefit plan. The exception process shall also begin when a covered person has submitted a non-clinical request for access to a drug approved by the federal Food and Drug Administration for treating a specific condition when such drug was available on the formulary during the previous 12 months. A prescription that requires an exception for coverage shall be considered approved if the exception process exceeds 48 hours.
II-a. No health benefit plan that provides prescription drug benefits and establishes the specific sequence in which prescription drugs for a medical condition are to be prescribed shall require failure on the same medication on more than one occasion for patients continuously enrolled in the plan. Nothing in this section shall be construed to prevent a health care provider from prescribing a medication to the same patient on more than one occasion, when he or she determines it is medically appropriate.
II-b. Every health benefit plan that provides prescription drug benefits and requires prior authorization for covered drugs in the formulary shall respond to a prior authorization request within 2 business days. The prior authorization process shall begin when the prescribing provider has submitted a request with a complete clinical rationale to the health carrier or pharmacy benefits manager. A prescription that requires a prior authorization for coverage shall be considered approved if the prior authorization process exceeds 2 business days.
III. Every health plan that provides prescription drug benefits shall provide written notice in a conspicuous font and size to covered persons affected by deletions to the plan list or plan formulary, provide an explanation of the exception process by which a covered person can access nonformulary medically necessary prescription drugs, and provide a toll-free telephone number through which a covered person can request additional information. For purposes of this paragraph, covered persons affected by deletions to the plan list or plan formulary shall include those covered persons for whom the health plan has provided coverage for the deleted prescription drugs during the 12-month period immediately prior to the deletion. Upon notification to covered persons, the health benefit plan shall allow at least 45 days before implementation of any formulary deletions; provided, however, that advance notice shall not be required if the federal Food and Drug Administration has determined that a prescription drug on the health benefit plan's formulary is unsafe. For purposes of this section, "conspicuous font and size" shall mean a font that is at least 12 point in size and in an easily legible font. If a covered person avails himself or herself of the exception process as outlined in 420-J:7-b, II, the medication shall be covered by the health plan until there is a resolution of the exception process.
IV. Every health benefit plan that provides prescription drug benefits shall maintain, as part of its records, all of the following information, which shall be made available to the commissioner upon request: the complete drug formulary or formularies of the plan, if the plan maintains a formulary, including a list of the prescription drugs on the formulary of the plan by major therapeutic category with an indication of whether any drugs are preferred over the other drugs.
IV-a. Every health benefit plan that provides prescription drug benefits shall provide notice of deletions to the plan list or plan formulary to all covered persons at least annually.
IV-b. Every health benefit plan that provides prescription drug coverage shall also provide notice of additions to the plan list or formulary to all covered persons at least annually. However, the requirements of this paragraph shall not apply to any health benefit plan that adds prescription drugs to its plan list or formulary upon approval by the federal Food and Drug Association.
IV-c. (a) Beginning July 1, 2017, all health insurers, health maintenance organizations, health services corporations, medical services corporations, and preferred provider programs may, when requiring prior authorization for a prescription drug, use and accept the prior authorization paper forms or electronic standard described in this paragraph.
(b) Beginning December 31, 2017, all health insurers, health maintenance organizations, health services corporations, medical services corporations, and preferred provider programs shall, when requiring prior authorization for a prescription drug, use and accept only the prior authorization paper forms or electronic standard described in this paragraph.
(c) On or before March 1, 2017, the commissioner shall adopt rules, pursuant to RSA 541-A, specifying the contents and format of the uniform prior authorization paper forms and the electronic prior authorization standard, consistent with the requirements of this paragraph. In developing the paper forms and the electronic standard, the commissioner shall seek input from interested stakeholders, including, but not limited to, prescribers, pharmacists, carriers, and prescription benefits managers, and shall support adoption of nationally recognized standards for electronic prior authorization of prescription drugs, including those provided by the National Council for Prescription Drug Programs or an equivalent organization as available.
(d) The prior authorization paper forms adopted under this paragraph shall not exceed 2 pages in length.
(e) Nothing in this paragraph shall require a carrier or pharmacy benefits manager to use electronic prior authorization. A carrier or pharmacy benefits manager shall not require use of electronic prior authorization when:
(1) A pharmacist or prescriber lacks broadband Internet access;
(2) A pharmacist or prescriber has low patient volume;
(3) A pharmacist or prescriber has opted-out for a certain medical condition or for a patient request;
(4) A pharmacist or prescriber lacks an electronic medical record system;
(5) The electronic prior authorization interface does not provide for the pre-population of prescriber and patient information; or
(6) The electronic prior authorization interface requires an additional cost to the prescriber.
(f) Nothing in this section shall prohibit the use of prior authorization for prescription drug benefits.
(g) This section shall apply to RSA 420-J and shall not apply to the Medicaid managed care program under RSA 126-A:5, XIX.
V. Every health benefit plan that provides coverage for prescription drugs or devices, or administers such a plan, or which contracts with an entity providing such prescription drug coverage, including but not limited to pharmacy benefit manager companies, shall issue to covered persons a card or other technology containing uniform prescription drug information. The uniform prescription drug information card or technology shall include all of the fields required by the health insurance provider for claims processing in a clear, readable, and understandable manner on the card or other technology issued and shall include, at a minimum, the following information:
(a) The name or trademark logo of the insurer and, if another company administers the prescription benefit, the name or trademark logo of the benefit administrator.
(b) The covered person's name and identification number.
(c) All of the electronic transaction routing information required by the insurer or its benefit administrator in order for the pharmacy to electronically process a prescription claim, including but not limited to the BIN number labeled as such or the Processor Control Number labeled as such, or both.
VI. All subscriber health insurance cards issued after January 1, 2004 shall contain the information required under paragraph V.
VII. A new uniform prescription drug information card, as required under paragraph V, shall be issued by health benefit plan upon enrollment of new members and when reissuing a new card to current members when there is a change in the covered person's pharmacy coverage that affects data contained on the card.
VIII. Every health benefit plan that provides prescription drug benefits shall allow its covered persons to purchase an up-to-90-day supply of covered prescription drugs on the covered person's health benefit plan formulary at one time at a pharmacy of the insured's choice within the insurer's network, provided that the insured can demonstrate that such drug has been taken by the insured for a continuous period of one year and provided that such drug is not subject to the health benefit plan's utilization management, prior authorization, or pre-certification requirements. Controlled substances as identified by the United States Drug Enforcement Administration are exempt from this paragraph. Nothing in this paragraph shall be construed to limit the health benefit plan's ability to establish co-payments, coinsurance deductibles, or other member cost shares. A retail pharmacy dispensing a 90-day supply of covered prescription drugs under this paragraph shall comply with any specified terms, conditions, and reimbursement rate which the health benefit plan may require for mail order pharmacies that fill 90-day prescriptions.
IX. (a) Every health benefit plan that provides prescription drug benefits shall allow its covered persons to obtain an emergency prescription for up to a 72-hour supply of covered prescription drugs on the covered person's health benefit plan formulary or a prescription drug that was deleted from the formulary within the last 90 days in the event a prescription requires prior authorization or an exception by an insurance carrier and the prior authorization or exception has neither been approved nor denied and a pharmacist has determined the medication is essential as provided in RSA 318:47-i. Such reimbursement shall be according to the payment rates of the provider contract. If authorization or exception is subsequently denied, the carrier shall reimburse the pharmacist for the prescription as given based on the pro-rated amount they would have otherwise received under the terms of the provider contract.
(b) The following drugs or classes of drugs, or their medical uses, may be excluded from coverage or otherwise restricted:
(1) Agents when used for anorexia, weight loss, or weight gain.
(2) Agents when used to promote fertility.
(3) Agents when used for cosmetic purposes or hair growth.
(4) Agents when used for the symptomatic relief of cough and colds.
(5) Agents when used to promote smoking cessation.
(6) Prescription vitamins and mineral products, except prenatal vitamins and fluoride preparations.
(7) Nonprescription drugs, except, in the case of pregnant women when recommended by or under the supervision of a physician, agents approved by the Food and Drug Administration under the over-the-counter monograph process for purposes of promoting, and when used to promote, tobacco cessation.
(8) Covered outpatient drugs which the manufacturer seeks to require as a condition of sale that associated tests or monitoring services be purchased exclusively from the manufacturer or its designee.
(11) Agents when used for the treatment of sexual or erectile dysfunction, unless such agents are used to treat a condition, other than sexual or erectile dysfunction, for which the agents have been approved by the Food and Drug Administration.
X. (a) A pharmacy benefits manager or insurer shall require a contracted pharmacy to charge an enrollee or insured person the pharmacy's usual and customary price of filling the prescription or the contracted copayment, whichever is less.
(b) Once it has settled a claim for filling a prescription for an enrollee or insured person and notified the pharmacy of the amount the pharmacy benefits manager or insurer shall pay to the pharmacy for that prescription, the pharmacy benefits manager or insurer shall not lower the amount to be paid to the pharmacy by the pharmacy benefits manager or the insurer for such settled claim; provided, however, that this paragraph shall not apply if the claim was submitted fraudulently or with inaccurate or misrepresented information.
(c) The commissioner shall adopt rules under RSA 541-A to implement this paragraph. Such rules shall include procedures for addressing complaints, provisions for enforcement, the receipt of complaints referred to the insurance department under RSA 318:47-h, III(b), and for reporting to the board of pharmacy on the status of complaints referred.
XI. Health carriers shall have access to or maintain within their data systems amounts paid to pharmacies and other health care providers for all prescription drugs on behalf of their covered members. Carriers shall have access to or maintain a record of any amounts due to the pharmacy from the covered member in the form of cost sharing, such as copayments, deductibles, or coinsurance. The health carrier shall be responsible for assuring timely access to this information even when the prescription drug benefit is administered by a pharmacy benefit manager or similar entity.
XII. A health carrier shall not, either directly or indirectly:
(a) Prohibit an in-network retail pharmacy from:
(1) Mailing or delivering a prescription drug to an enrollee as an ancillary service of the in-network retail pharmacy provided that confirmation of delivery is obtained.
(2) Charging a shipping or handling surcharge to an enrollee who requests that the in-network retail pharmacy mail or deliver a prescription drug to the enrollee as an ancillary service provided the enrollee receives a disclosure from the in-network retail pharmacy regarding any surcharge to be charged to the patient for the delivery of a prescription drug, including that the surcharge may not be reimbursable by the plan sponsor or health carrier.
(3) Offering the ancillary services described in subparagraph I(a) to an enrollee.
(b) Charge an enrollee who uses an in-network retail pharmacy that offers to mail or deliver a prescription drug to an enrollee as an ancillary service a surcharge for the delivery of a prescription drug or copayment that is higher than the surcharge or copayment the enrollee would pay if the enrollee used an in-network retail pharmacy that does not offer to mail or deliver a prescription drug to an enrollee as an ancillary service.
(c) For purposes of this section, a retail pharmacy shall not include a "mail-order pharmacy" as defined in RSA 318:1, VII-b.
Source. 2003, 286:5. 2004, 187:15-17. 2007, 73:2. 2013, 257:30; 262:1. 2014, 2:1, eff. April 21, 2014; 120:2, eff. Aug. 15, 2014; 311:3, eff. Jan. 1, 2015. 2016, 221:6, eff. June 9, 2016; 228:2, eff. June 9, 2016. 2019, 137:1, eff. Aug. 24, 2019; 180:1, 2, eff. Sept. 8, 2019. 2020, 13:8, eff. Jan. 1, 2021. 2021, 149:2, eff. Sept. 21, 2021.
420-J:7-c Disqualification of Certain Physicians Prohibited.
A physician who is part of a health carrier's provider network on December 31, 2000, shall not be disqualified from participating in that network solely because such physician is not certified by a member board of the American Board of Medical Specialties.
Source. 2000, 248:1, eff. Aug. 8, 2000.
420-J:7-d Continued Access to Care Subsequent to a Provider Contract Termination.
The commissioner may extend the period of continued access to care subsequent to a provider contract termination provided for under RSA 420-J:8, XI for up to an additional 60-day period.
Source. 2003, 284:3, eff. July 1, 2003.
420-J:7-e Notice of Consumer Rights.
A health carrier shall, at least annually, in a conspicuous communication as approved by the commissioner which may be included as an insert in an annual mailing or by electronic communication, notify each covered person of his or her consumer rights under this chapter, including, but not limited to, appeal rights and the ability to access services out-of-network in the event covered services are not available in-network. A health carrier shall also notify covered persons of the right to access out-of-network services when the covered person contacts the health carrier directly requesting assistance finding clinically appropriate in-network care. A health carrier shall also provide notification to covered persons of their right to appeal whenever a covered person contacts the health carrier regarding a denial of coverage or when a health carrier verbally informs the covered person of the denial of coverage.
Source. 2017, 214:2, eff. Jan. 1, 2018.
420-J:8 Provider Contract Standards.
I. Every contract between a health carrier and a participating provider shall set forth a hold harmless provision specifying protection for covered persons. This provision shall include language substantially as follows:
(a) Provider agrees that in no event, including but not limited to nonpayment by the health carrier or intermediary, insolvency of the health carrier or intermediary, or breach of this agreement, shall the provider bill, charge, collect a deposit from, seek payment or reimbursement from, or have recourse against a covered person or a person acting on behalf of the covered person (other than the health carrier or intermediary) for services provided pursuant to this agreement. This agreement does not prohibit the provider from collecting coinsurance, deductibles, or copayments, as specifically provided in the evidence of coverage, or fees for uncovered services delivered on a fee-for-service basis to covered persons. Nor does this agreement prohibit a provider and a covered person from agreeing to continue services solely at the expense of the covered person, as long as the provider has clearly informed the covered person that the health carrier may not cover or continue to cover a specific service or services. Except as provided in this chapter, this agreement does not prohibit the provider from pursuing any available legal remedy.
(b) Provider further agrees that:
(1) This provision shall survive the termination of this agreement regardless of the cause giving rise to termination and shall be construed to be for the benefit of the covered person; and that
(2) This provision supersedes any oral or written contrary agreement now existing or hereafter entered into between provider and covered person or persons acting on their behalf.
(c) Any modifications, additions or deletions to the provisions of this section shall become effective on a date no earlier than 15 business days after the commissioner has received written notice of such proposed changes.
II. The execution of a contract by a health carrier shall not relieve the health carrier of its liability to any person with whom it has contracted for the provision of services, nor of its responsibility for the compliance with any law or rule.
III. The health carrier shall maintain provider and intermediary contracts at its principal place of business in this state, or the health carrier shall have access to all contracts and provide copies to facilitate regulatory review upon 15 business days prior written notice from the commissioner.
IV. No contract between a health carrier and a physician, for the purpose of delineating the rights and obligations of the parties within the provider network, shall limit the liability of the health carrier for any actions of the physician for which the health carrier might otherwise be liable.
V. No contract between a health carrier and a health care provider shall limit what information such health care provider may disclose to patients or to prospective patients regarding the provisions, terms, or requirements of the health carrier's products as they relate to the needs of such provider's patients except for trade secrets of significant competitive value.
VI. No contract shall use the term physician for the purpose of allowing a health carrier to avoid contracting with other health care professionals for health care services. A physician shall mean a person licensed to practice medicine under RSA 329. Nothing in this section shall be construed to require a health carrier to contract with a health care provider.
VII. A health carrier shall allow a participating provider 60 days from the postmarked date to review any proposed contract and any modifications to an existing contract, excluding those modifications that are expressly permitted under the existing contract.
VIII. (a) No contract between a health carrier and a participating provider shall contain any payment or reimbursement provision the terms of which creates an inducement for the provider to not provide medically necessary care to covered persons. Nothing in this section shall be construed to prohibit the use of payment arrangements between a health carrier and a participating provider or provider group which involve capitation, withholds or other arrangements.
(b) Prior to the execution of a health care provider contract, a health carrier shall furnish to the contracting entity, in writing or in electronic format, a complete copy of the proposed contract including all attachments and exhibits. The health carrier shall also make available to the contracting entity, in writing or in electronic format, the most current provider manual.
(c) The contracting entity may request that a health carrier disclose the fees applicable to specified procedure codes that pertain to the entity's practice or specialty or a method or process that allows the contracting entity to determine the fees pursuant to the terms of the contract. Upon request by the contracting entity, the insurer shall furnish, in writing or in an electronic format, the requested procedure codes within 30 calendar days from receipt of the request.
(d) No provider contract shall allow for a material change in the applicable fee schedule unless notice of such change is given at least 60 days in advance of the effective date.
(e) Provider contracts that include payment for mammography shall include distinct recognition of and additional payment for industry standard coding relating to mammography screening using 3-D tomosynthesis.
IX. The health carrier shall provide to covered persons, in the evidence of coverage, a description for the types of financial arrangements contained in its contracts with participating providers. Such descriptions shall be set forth in clear, understandable language.
X. Every contract between a health carrier and a participating provider shall provide that the health carrier may not remove a health care provider from its network or refuse to renew the health care provider with its network for participating in a covered person's internal grievance procedure or external review.
XI. Every contract entered into after July 1, 2003 between a health carrier and any physician or facility shall contain a provision that ensures that covered persons will have continued access to the provider in the event that the contract is terminated for any reason other than unprofessional behavior. The continued access to providers shall be made available for 60 days from the date of termination of the contract and shall be provided and paid for in accordance with the terms and conditions of the covered person's health benefit plan and the prior contract between a health carrier and a health care provider. Within 5 business days of the contract termination, the health carrier shall provide written notice to affected covered persons explaining their continued access rights.
XIII. No health carrier shall interfere with a provider's right to legal representation during contract negotiations by restricting the provider's right to share confidential information with counsel or by refusing to negotiate directly with counsel selected by a provider as long as the provider receives assurance that counsel agrees to keep confidential the information exchanged during the course of negotiations to the same extent the provider is obligated to keep such information confidential.
XIV. Every contract or contract amendment entered into after the effective date of this paragraph between a health care carrier and any provider or facility shall contain a provision stating that no provider employed by a hospital or any affiliate is required or in any way obligated to refer patients to providers also employed or under contract with the hospital or any affiliate. Nothing in this paragraph shall be construed to prohibit health care carriers from providing coverage for only those services which are medically necessary and subject to the terms and conditions of the covered person's policy.
XV. (a) All contracts between a carrier or pharmacy benefit manager and a contracted pharmacy shall include:
(1) The sources used by the pharmacy benefit manager to calculate the drug product reimbursement paid for covered drugs available under the pharmacy health benefit plan administered by the carrier or pharmacy benefit manager.
(2) A process to appeal, investigate, and resolve disputes regarding the maximum allowable cost pricing. The process shall include the following provisions:
(A) A provision granting the contracted pharmacy or pharmacist at least 30 business days following the initial claim to file an appeal;
(B) A provision requiring the carrier or pharmacy benefit manager to investigate and resolve the appeal within 30 business days;
(C) A provision requiring that, if the appeal is denied, the carrier or pharmacy benefit manager shall:
(i) Provide the reason for the denial; and
(ii) Identify the national drug code of a drug product that may be purchased by contracted pharmacies at a price at or below the maximum allowable cost; and
(D) A provision requiring that, if an appeal is granted, the carrier or pharmacy benefits manager shall within 30 business days after granting the appeal:
(i) Make the change in the maximum allowable cost; and
(ii) Permit the challenging pharmacy or pharmacist to reverse and rebill the claim in question.
(b) For every drug for which the pharmacy benefit manager establishes a maximum allowable cost to determine the drug product reimbursement, the pharmacy benefit manager shall:
(1) Include in the contract with the pharmacy information identifying the national drug pricing compendia or sources used to obtain the drug price data.
(2) Make available to a contracted pharmacy the actual maximum allowable cost for each drug.
(3) Review and make necessary adjustments to the maximum allowable cost for every drug for which the price has changed at least every 14 days.
XVI. No contract between an insurance carrier or pharmacy benefit manager and a contracted pharmacy shall contain a provision prohibiting divulgence to a covered person or the insurance department relative to monetary matters which would prove beneficial in lowering costs to such covered person.
[Paragraph XVII repealed by 2021, 189:6 effective January 1, 2025.]
XVII. A pharmacy benefit manager shall not require accreditation of providers other than accreditation requirements as adopted by the New Hampshire pharmacy board or by another state or federal entity.
Source. 1997, 345:1. 1998, 377:3. 1999, 284:1. 2000, 18:14; 198:1. 2002, 207:11. 2003, 284:2, 9. 2005, 161:1. 2007, 195:1. 2009, 252:3, eff. Sept. 14, 2009. 2016, 177:3, eff. Jan. 1, 2017. 2017, 223:1, eff. July 11, 2017; 223:2, eff. May 1, 2018. 2018, 92:1, eff. May 25, 2018; 92:2, eff. June 30, 2020; 164:1, eff. Jan. 1, 2019. 2019, 226:1, eff. Sept. 10, 2019. 2021, 189:5, eff. Aug. 10, 2021.
420-J:8-a Prompt Payment Required.
I. (a) Health carriers issuing health benefit plans subject to this chapter shall pay claims submitted by health care providers for services rendered in New Hampshire to covered persons within 30 calendar days upon receipt of a clean non-electronic claim or 15 calendar days upon receipt of a clean electronic claim.
(b) When the health carrier is denying or pending the claim, the carrier shall have 15 calendar days upon receipt of an electronic claim or 30 days upon receipt of a non-electronic claim to notify the health care provider or covered person of the reason for denying or pending the claim and what, if any, additional information is required to adjudicate the claim. Upon the health carrier's receipt of the requested additional information, the health carrier shall adjudicate the claim within 45 calendar days. If the required notice is not provided, the claim shall be treated as a clean claim and shall be adjudicated pursuant to subparagraph (a).
(c) Payment of a claim shall be considered to be made on the date a check was issued or electronically transferred. The health carrier shall mail checks no later than 5 business days after the date a check was issued. Failure to mail a check within 5 business days shall constitute a violation subject to enforcement under RSA 415:20.
(d) The health carrier's failure to comply with the time limits in this section shall not have the effect of requiring coverage for an otherwise non-covered claim. This section shall only apply to payments made on a claims basis and shall not apply to capitation or other forms of periodic payment.
II. In this section:
(a) "Clean claim" means a claim for payment of covered health care expenses that is submitted to a health carrier on the carrier's standard claim form using the most current published procedural codes, with all the required fields completed with correct and complete information in accordance with the carrier's published filing requirements.
(b) "Electronic claim" means the transmission of data for purposes of payment of covered health care services in an electronic data format specified by the health carrier and, if covered by the Health Insurance Portability and Accountability Act (HIPAA), is in such form and substance as to be in compliance with such act.
III. Any initial clean claim submission not paid within the time periods specified in subparagraph I(a) shall be deemed overdue. In that case:
(a) The health carrier shall pay the health care provider or the insured person the amount of the overdue claim plus an interest payment of 1.5 percent per month beginning from the date the payment was due; and
(b) The health care provider may recover from the carrier, upon a judicial finding of bad faith, reasonable attorney's fees for advising and representing a health care provider in a successful action against a carrier for payment of the claim.
IV. Exceptions to the requirements of this section are as follows:
(a) No health carrier shall be in violation of this section for a claim submitted by a health care provider if:
(1) Failure to comply is caused by a directive from a court or a federal or state agency;
(2) The health carrier is in liquidation or rehabilitation or is operating in compliance with a court-ordered plan of rehabilitation; or
(3) The carrier's compliance is rendered impossible due to matters beyond the carrier's control which are not caused by such carrier.
(b) No health carrier shall be in violation of this section for any claim submitted more than 90 days after the service was rendered.
(c) No health carrier shall be in violation of this section while the claim is pending due to a fraud investigation that has been reported to a state or federal agency, or an internal or external review determination pursuant to RSA 420-J:5 or RSA 420-J:5-a-e.
V. The commissioner may assess an administrative fine against any health carrier or may suspend or revoke the license or certificate of authority of any health carrier after determining that the health carrier has established a pattern of overdue payments and that the contemplated enforcement action would not promote the deterioration of the financial condition of an at-risk insurer. Such fine shall not exceed $300,000 per calendar year examined. Nothing in this paragraph shall be construed to alter the commissioner's authority to investigate or take action, including, but not limited to, action pursuant to RSA 415:20, in response to individual instances of noncompliance.
420-J:8-b Retroactive Denials Prohibited; Exceptions.
I. In this section, "retroactive denial of a previously paid claim" means any attempt by a health carrier to retroactively collect payments already made to a health care provider with respect to a claim by requiring repayment of such payments, reducing other payments currently owed to the provider, withholding or setting off against future payments, or reducing or affecting the future claim payments to the provider in any other manner.
II. No health carrier shall impose on any health care provider any retroactive denial of a previously paid claim or any part thereof unless:
(a) The carrier has provided the reason for the retroactive denial in writing to the health care provider; and
(b) The time which has elapsed since the date of payment of the challenged claim does not exceed 12 months. The retroactive denial of a previously paid claim may be permitted beyond 12 months from the date of payment only for the following reasons:
(1) The claim was submitted fraudulently;
(2) The claim payment was incorrect because the provider or the insured was already paid for the health care services identified in the claim;
(3) The health care services identified in the claim were not delivered by the physician/provider;
(4) The claim payment was for services covered by Title XVIII, Title XIX, or Title XXI of the Social Security Act;
(5) The claim payment is the subject of an adjustment with a different insurer, administrator, or payor and such adjustment is not affected by a contractual relationship, association, or affiliation involving claims payment, processing, or pricing; or
(6) The claim payment is the subject of legal action.
III. A health carrier shall notify a health care provider at least 15 days in advance of the imposition of any retroactive denials of previously paid claims. The health care provider shall have 6 months from the date of notification under this paragraph to determine whether the insured has other appropriate insurance, which was in effect on the date of service. Notwithstanding the contractual terms between the health carrier and provider, the health carrier shall allow for the submission of a claim that was previously denied by another insurer due to the insured's transfer or termination of coverage.
Source. 2002, 143:4. 2006, 104:4, eff. Aug. 7, 2006. 2018, 317:2, eff. Jan. 1, 2019.
420-J:8-c Reimbursement for Providers Waiting for Health Carrier Credentialing Verification.
I. Pursuant to RSA 420-J:4, I, health carriers issuing health benefit plans subject to this chapter shall pay claims for covered services rendered to covered persons by a health care provider who, at the time of submission of a clean and complete credentialing application, has a valid license from the respective state licensing board and has been credentialed by the hospital, if appropriate. The claim for covered services rendered by the provider applicant shall be paid at the same contracted rate as the credentialed provider:
(a) When covering on-call for another health care provider who is credentialed by the carrier and billed using the name of the credentialed provider; or
(b) Who, at the time of application, is credentialed by the health carrier in another state or is in the health carrier's New Hampshire network based on employment with a particular health care entity.
II. For purposes of RSA 420-J:4 and this section, a health care provider having a valid license shall include all:
(a) Mental health practitioners licensed under RSA 330-A and applicants for mental health practice licensure from other states who are permitted to practice in this state pursuant to RSA 330-A:26, II.
(b) Psychologists licensed under RSA 329-B and psychologists licensed in another jurisdiction issued a temporary license to practice under RSA 329-B:20, III.
Source. 2007, 98:2, eff. Aug. 10, 2007. 2019, 228:5, eff. Sept. 10, 2019.
420-J:8-d Dependent Coverage.
I. A policy may, at the election of the carrier, insure, originally or by subsequent amendment, upon application of an adult member of a family who shall be deemed the policyholder, any 2 or more eligible members of that family, including husband, wife, dependent children, or any other person dependent upon the policyholder. In the event a carrier elects to provide coverage for dependent children, the term "dependent child" shall include a subscriber's child by blood or by law, who is under age 26.
I-a. The coverage of any family member insured by such policy, pursuant to paragraph I, who is mentally or physically incapable of earning his or her own living as of the date on which such dependent's status as a covered family member would otherwise expire because of age, shall continue under such policy while such policy remains in force or is replaced by another policy as long as such incapacity continues and as long as such dependent remains chiefly financially dependent on the policyholder or the employee or his or her estate is chargeable for the care of such dependent; provided, that due proof of such incapacity is received by the insurer within 31 days of such expiration date. If such coverage is continued in accordance with this paragraph, such dependent shall be entitled upon the termination of such incapacity to coverage offered by the New Hampshire high risk pool under RSA 404-G.
II. Nothing in this section shall be construed to require:
(a) Coverage for services provided to a dependent before the effective date of this section; or
(b) That an employer pay all or part of the cost of family coverage that includes a dependent as provided pursuant to this section.
III. A subscriber that elects family coverage during any applicable open enrollment period may enroll any dependent eligible pursuant to this section.
IV. Coverage for a dependent provided pursuant to this section shall be provided until the earlier of the following:
(a) The dependent is disqualified for dependent status as set forth in paragraph I of this section;
(b) The date upon which the employer under whose contract coverage is provided to a dependent ceases to provide coverage to the subscriber.
V. Nothing in this section shall be construed to permit a health insurance carrier to refuse an election for coverage by a dependent pursuant to paragraph III, based upon the dependent's prior disqualification pursuant to subparagraph IV(a).
VI. (a) Notice regarding coverage for a dependent as provided pursuant to this section shall be provided to a subscriber:
(1) In the certificate of coverage prepared for subscribers on or about the date of commencement of coverage; and
(2) Within 30 days of the effective date of this section.
(b) Such notice shall include information regarding the required special open enrollment period.
Source. 2007, 352:6. 2009, 235:18. 2010, 243:13, eff. Sept. 23, 2010.
420-J:8-e Reasonable Value of Health Care Services.
In the event of a dispute between a health care provider and an insurance carrier relative to the reasonable value of a service under RSA 329:31-b or RSA 415-J:3, the commissioner shall have exclusive jurisdiction to determine if the fee is commercially reasonable. Either the provider or the insurance carrier may petition for a hearing under RSA 400-A:17. The petition shall include the appealing party's evidence and methodology for asserting that the fee is reasonable, and shall detail the efforts made by the parties to resolve the dispute prior to petitioning the commissioner for review. The department may require the parties to engage in mediation prior to rendering a decision.
Source. 2018, 356:2, eff. July 1, 2018. 2020, 27:35, eff. July 21, 2020.
420-J:8-f Non-Covered Dental Services.
I. No insurer, health care service contractor, health maintenance organization, dental insurer, or any other similar entity, including Delta Dental Plan of New Hampshire Inc., subject to regulation by the insurance department that covers dental services, and no contract or participating provider agreement with a dentist shall require, directly or indirectly, that a dentist who is a participating provider provide services to an enrolled participant at a fee set by, or at a fee subject to the approval of, the regulated entity unless the dental services are covered services.
II. No person providing third party administrator services shall make available for any customers a plan that sets dental fees for providers in its provider network for any services except covered services.
III. In this paragraph "covered services" means dental care service for which reimbursement is available under an enrollee's plan contract, or for which reimbursement would be available but for the application of contractual limitations such as deductibles, copayments, coinsurance, waiting periods, annual or lifetime maximums, frequency limitations, alternative benefit payments, or any other limitation.
IV. Fees for covered services shall be set in good faith and shall not be nominal.
Source. 2020, 39:14, eff. Jan. 1, 2021.
420-J:9 Quality Assessment, Quality Improvement, and Reporting.
I. A health carrier shall:
(a) Establish and maintain a written quality assessment program designed to collect and evaluate information regarding the quality of the health care processes used by the health carrier and the health outcomes of its covered persons.
(b) Establish and maintain a written quality improvement program structured to identify opportunities to improve care, practices that result in improved health care outcomes, problematic utilization patterns, and those providers who may be responsible for either exemplary or problematic patterns of utilization.
II. The quality improvement program shall at a minimum include: a statement of the objectives of the program; a description of how the health carrier will conduct its quality improvement program; the lines of authority and accountability including data collection responsibilities; evaluation tools; performance improvement activities; and an annual effectiveness review.
III. The chief medical officer or clinical director of the health carrier shall have primary responsibility for the quality assessment and quality improvement activities carried out by, or on behalf of, the health carrier and for ensuring that all requirements of this chapter relative to quality assessment and quality improvement are met.
IV. A health carrier shall:
(a) Assure that participating providers have an opportunity to participate in developing, implementing, and evaluating the quality assessment and quality improvement programs.
(b) Maintain at its principal office a copy of the quality assessment program and the quality improvement program which shall be available for inspection by the commissioner or designee at any time during the health carrier's regular business hours.
(c) Certify to the commissioner on or before March 1 of each year that its quality assessment program and its quality improvement program meet the requirements of this chapter and any applicable rules.
(d) Notify the commissioner on or before March 1 of each year of its accreditation by any external accrediting agencies and shall provide a contact person and a phone number for consumer phone calls.
Source. 1997, 345:1, eff. Jan. 1, 1998.
420-J:10 Confidentiality of Insurer Records.
I. Data or information pertaining to the diagnosis, treatment, or health of a covered person obtained from the person or from a provider by a health carrier is confidential and shall not be disclosed to any person except to the extent that it may be necessary to carry out the purposes of this chapter and as allowed by any applicable state or federal law; or upon the express consent of the covered person; or pursuant to statute or court order for the production of evidence or the discovery thereof; or in the event of a claim or litigation between the covered person and the health carrier where the data or information is pertinent, regardless of whether the information is in the form of paper, is preserved on microfilm, or is stored in a computer retrievable form.
II. If any data or information pertaining to the diagnosis, treatment, or health of any enrollee or applicant is disclosed pursuant to paragraph I, the health carrier making this required disclosure shall not be liable for the disclosure or any subsequent use or misuse of the data.
III. A health carrier shall be entitled to claim any statutory privileges against disclosure that the provider who furnished the information to the health carrier is entitled to claim.
IV. The records of the quality assessment program, and the information considered by any quality committee and the records of its actions and proceedings shall be confidential and not subject to subpoena or order to produce except in proceedings before the department or other appropriate state licensing or certifying agency, or in an appeal, if permitted, from the quality committee's findings or recommendations. This section shall not be construed to affect the confidentiality of any other proprietary record of a health carrier.
Source. 1997, 345:1, eff. Jan. 1, 1998.
420-J:11 Confidentiality of Insurance Department Records.
All information, documents and copies thereof obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to RSA 400-A:37, and, unless otherwise provided in this chapter, all information reported and maintained pursuant to this chapter shall be given confidential treatment and shall not be made public by the commissioner or any other person, except to insurance departments of other states, unless the commissioner after consultation with the affected parties, determines that the interest of policyholders, shareholders, or the public will be served by the publication thereof, in which event the commissioner may disclose all or any part thereof in such manner as the commissioner may deem appropriate.
Source. 1997, 345:1, eff. Jan. 1, 1998.
420-J:12 Rulemaking Authority.
The commissioner may adopt such rules, under RSA 541-A, and issue such orders as may be necessary to carry out the purposes and provisions of this chapter.
Source. 1997, 345:1, eff. Jan. 1, 1998.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.
Source. 1997, 345:1, eff. Jan. 1, 1998.
Any health carrier or other organization violating any of the provisions of this chapter may be subject to an administrative fine not to exceed $2,500 per violation. The commissioner may also suspend or revoke the certificate of authority or license of a health carrier or other organization for any violation of this chapter or the failure to comply with an order of the commissioner issued under this chapter.
Source. 1997, 345:1, eff. Jan. 1, 1998.
Substance Use Disorders
In this subdivision:
I. "ASAM criteria" means the latest edition of the Treatment Criteria for Addictive, Substance-Related, and Co-Occurring Conditions, developed by the American Society of Addiction Medicine.
II. "Clinical stabilization services" means 24-hour clinically-managed post-withdrawal management treatment for adults or adolescents which may include intensive education and counseling regarding the nature of addiction and its consequences, relapse prevention, outreach to families and significant others, and after-care planning, for individuals beginning to engage in recovery from addiction.
III. "Short-term inpatient withdrawal management" means 24-hour medically-supervised addiction treatment for adults or adolescents provided in medically-managed or medically-monitored inpatient facilities that provide evaluation and withdrawal management and which may include biopsychosocial assessment, individual and group counseling, psychological educational groups, and discharge planning.
IV. "Substance use disorder services" means health care services that are provided to a covered person as treatment for an addictive substance-related condition, not including treatment for any condition related to tobacco use.
Source. 2016, 2:11, eff. Jan. 1, 2017; 275:1, eff. Jan. 1, 2017 at 12:01 a.m.
420-J:16 Levels of Care Criteria; Attestation.
I. Whenever substance use disorder services are a covered benefit under a health benefit plan subject to this chapter, the health carrier providing such benefits shall rely upon ASAM criteria when determining medical necessity and developing utilization review standards for levels of care for substance use disorder services.
II. On January 1 of each year, each health carrier that provides coverage for substance use disorder services shall file with the commissioner an annual attestation of compliance with this subdivision.
Source. 2016, 2:11, eff. Jan. 1, 2017.
420-J:17 Prior Authorization.
I. Whenever substance use disorder services are a covered benefit under a health benefit plan subject to this chapter, no prior authorization shall be required for the first 2 routine outpatient visits of an episode of care by an individual for assessment and care with respect to a substance use disorder.
II. Whenever substance use disorder services are a covered benefit under a health benefit plan subject to this chapter, no prior authorization shall be required for short-term inpatient withdrawal management and clinical stabilization services for up to 24 hours, when prescribed by a clinician trained in the use and application of the ASAM criteria; provided, that the facility notifies the patient's health carrier as soon as practicable after admission of the patient. If the facility fails to notify the patient's health carrier as soon as practicable after admission of the patient, the facility shall be financially responsible for the costs of any services provided by the facility to the patient.
III. Alternatively, a carrier may require prior authorization for the services described in paragraph II, but only if the carrier has a medical clinician or licensed alcohol and drug counselor available on a 24-hour hotline to make the medical necessity determination and assist with placement at the appropriate level of care, and the carrier provides a prior authorization decision as soon as practicable after receipt from the treating clinician of the clinical rationale consistent with the ASAM criteria, but in no event more than 6 hours of receiving such information; provided that until such hotline determination is made, coverage for substance use disorder services shall be provided at an appropriate level of care consistent with the ASAM criteria, as defined in RSA 420-J:15, I.
IV. If an insurance policy does not require prior authorization for short-term inpatient withdrawal management services or clinical stabilization services, paragraphs II and III shall not apply.
V. Nothing in this section shall be construed to require coverage for services provided by a non-participating provider.
Source. 2016, 2:11, eff. Jan. 1, 2017; 275:2, eff. Jan. 1, 2017 at 12:01 a.m.
420-J:18 Authorization for Medication-Assisted Treatment.
Whenever substance use disorder services are a covered benefit under a health benefit plan subject to this chapter, a health carrier shall:
I. Be required to offer at least one medication-assisted treatment therapy option approved by the federal Food and Drug Administration for treatment of substance use disorders without a requirement for prior authorization.
II. Not require a renewal of a prior authorization for a medication-assisted treatment therapy for treatment of substance use disorders more frequently than once every 12 months.
Source. 2017, 185:1, eff. Aug. 28, 2017. 2020, 39:52, eff. Sept. 27, 2020.
420-J:19 Medication Synchronization.
I. An individual or group health insurance plan or policy providing prescription drug coverage in New Hampshire, shall permit and apply a prorated, daily cost-sharing rate to covered prescriptions for a chronic condition that are dispensed by an in-network pharmacy for less than a 30-day supply if the prescriber and pharmacist determine the fill or refill to be in the best interest of the patient for the management or treatment of a chronic, long-term care condition and the patient requests or agrees to less than a 30-day supply for the purpose of synchronizing the patient's medications. For the purposes of this paragraph, the insured's or enrollee's maintenance prescription drugs to be synchronized shall meet all of the following requirements:
(a) They are covered by the policy, certificate, or contract described in this chapter.
(b) They are used for the management and treatment of a chronic, long-term care condition and have authorized refills that remain available to the insured or enrollee.
(c) Except as otherwise provided in this paragraph, they are not a controlled substance included in schedules II-V.
(d) They meet all utilization management requirements specific to the maintenance-prescription drugs at the time of the request to synchronize the insured's or enrollee's multiple, maintenance-prescription drugs.
(e) They are of a formulation that can be effectively split over required short-fill periods to achieve synchronization.
(f) They do not have quantity limits or dose-optimization criteria or requirements that will be violated when synchronizing the insured's or enrollee's multiple, maintenance-prescription drugs.
II. The plan or policy described in paragraph I shall apply a prorated, daily cost-sharing rate for maintenance-prescription drugs that are dispensed by an in-network pharmacy for the purpose of synchronizing the insured's or enrollee's multiple, maintenance-prescription drugs.
III. The plan or policy described in paragraph I shall not reimburse or pay any dispensing fee that is prorated. The insurer shall only pay or reimburse a dispensing fee that is based on each maintenance-prescription drug dispensed.
IV. A synchronization shall only occur once per year per maintenance-prescription drug.
Source. 2018, 103:2, eff. Jan. 1, 2019.