CHAPTER Ins 2700 MANAGED CARE

PART Ins 2701 HEALTH AND DENTAL BENEFIT PLAN NETWORK ADEQUACY

Statutory Authority: RSA 400-A:15, I; RSA 420-J:7, II; and RSA 420-J:12

Ins 2701.01 Purpose. The purpose of these rules is to establish standards for determining whether a carrier’s provider network is sufficient in numbers, types, and geographic location of providers to ensure that covered persons will have access to health care services without unreasonable delay.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10; ss by #12565, eff 8-1-18

Ins 2701.02 Scope. These rules shall apply to all insurers offering or issuing policies of health and dental insurance in the state of New Hampshire when the plan design and benefits include a provider network with differential payment or coverage associated with use of an in-network provider.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10; ss by #12565, eff 8-1-18

Ins 2701.03 Definitions.

(a) “Commissioner” means the insurance commissioner.

(b) “Covered benefits” means those health care services and other medical services, including dental benefits, to which a covered person is entitled under the terms of a health benefit plan.

(c) “Covered person” means a policyholder, subscriber, enrollee, or other individual participating in a health benefit plan.

(d) “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 covered benefits with respect to any “health coverage” as defined in RSA 420-G:2, IX and any network-based coverage for dental services.

(e) “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 covered 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.

(f) “Network” means the group of participating providers contracted under a network plan.

(g) “Network 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.

(h) “Participating provider” means a person or entity 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, co-payments, or deductibles, directly or indirectly from the health carrier.

(i) “Primary care provider” means a physician licensed by the New Hampshire board of medicine or a board of medicine of another appropriate jurisdiction who has successfully completed a residency program accredited by the Accreditation Council for Graduate Medical Education or approved by the American Osteopathic Association in family practice, internal medicine, or pediatrics, or an advanced registered nurse practitioner licensed by the New Hampshire board of nursing in the advanced practice categories of family practice, internal medicine, or pediatrics, or a doctor of naturopathic medicine authorized and licensed to practice naturopathic medicine under RSA 328-E.

(j) “Retail pharmacy” means any licensed pharmacy that is not a mail order pharmacy and is open to dispense prescription drugs to the walk-in public without being required to receive medical services from a provider or institution affiliated with that pharmacy.

(k) “Urgent services” means health care services that are provided to treat a medical or behavioral health condition or symptomatic illness of a covered person that, if not treated within 48 hours, presents a risk of serious harm.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10 (from Ins 2701.01); ss by #12565, eff 8-1-18

Ins 2701.04 Basic Access Requirement.

(a) Each health carrier offering a network plan shall maintain a network of primary care providers, dental providers, specialists, institutional providers, and other ancillary health care personnel that is sufficient in numbers and types of providers to ensure that all covered health care services are accessible to covered persons without unreasonable delay.

(b) A health carrier’s network of participating providers shall be considered sufficient to meet the basic access requirement in Ins 2701.04(a) if it meets all of the standards contained in Ins 2701.04 through Ins 2701.13. The evaluation of network adequacy shall be based on the most recent United States census data for populations under 65 years of age.

(c) The basic access requirement in Ins 2701.04(a) shall be met in each county in which the health carrier is actively marketing a health benefit plan. For the purpose of this paragraph, “actively marketing” means advertising in publications published within the county or initiating contact with a potential policyholder in person, by phone, or by mail.

(d) In any county in which compliance with Ins 2701.04(a) is required and in which a health carrier’s network is insufficient to meet one of the access standards in Ins 2701.06 and in which the carrier has not been granted an exception pursuant to Ins 2701.08 or Ins 2701.14, the health carrier shall cover services provided by a non-participating provider located within the applicable geographic area at no greater cost to the covered person than if the services were obtained from a participating provider. Coverage under this paragraph shall be subject to all other terms and conditions of the covered person’s health benefit plan, including, but not limited to, referral and authorization requirements. Nothing in this paragraph shall be construed to require a health carrier to provide coverage for services provided by a non-participating provider who has been excluded from the health carrier’s network for failing to meet any applicable credentialing standards.

(e) A health carrier shall not actively solicit new policyholders in any county in which compliance with Ins 2701.04(a) is required and in which it does not meet the access standards in Ins 2701.06, unless the health carrier has been granted an exception under Ins 2701.08.

(f) Nothing in (e) above shall be construed to prohibit a health carrier from:

(1) Advertising in publications distributed within the county which are published outside of the county;

(2) Responding to inquiries initiated by a potential policyholder; or

(3) Issuing or renewing coverage as required by federal or state law, including RSA 420-G.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10 (from Ins 2701.02); ss by #12565, eff 8-1-18

Ins 2701.05 Reasonable Access to Health Care Services.

(a) To constitute reasonable access to health care services, a provider network shall supply access consistent with the geographic accessibility standards in Ins 2701.06 to the services listed in Ins 2701.07.

(b) To be deemed adequate for each of the listed services, the network shall include, within the applicable geographic area, a sufficient number of providers for which the service in question is within their scope of practice. In addition to physicians, providers may include nurse practitioners, osteopaths, social workers, psychologists, naturopaths, midwives, physician assistants, clinical nurse specialists, dentists, dental hygienists, or any provider trained and appropriately licensed and, when required, adequately supervised by a physician in compliance with New Hampshire laws and rules.

(c) To constitute reasonable access to health services, the network shall include providers whose services are integral to care in a hospital, ambulatory surgery center, or similar facility, specifically those services provided by anesthesiologists, pathologists, emergency physicians, and radiologists. When a carrier is unable to assure that an in-network provider of those services is always accessible at an in-network facility, the carrier shall assure that any necessary out-of-network services are provided with no additional cost share to the member, beyond member responsibility were those services provided by an in-network provider.

(d) Access to medically necessary health care services through the use of telemedicine or telehealth may be used to satisfy the network adequacy geographic access requirements when an acceptable standard of care can be met by the provider offering the service.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10 (from Ins 2701.03); ss by #12565, eff 8-1-18

Ins 2701.06 Standards for Geographic Accessibility.

(a) Geographic access standards shall be calculated based on population densities of persons under the age of 65. Geographic access standards shall be measured in terms of distance or travel times for a person under normal conditions from specific zip codes.

(b) A carrier shall meet the service specific requirement by county for persons living in one of the 2 zip codes for the following counties:

(1) Coos – Lancaster 03584 or Berlin 03570;

(2) Carroll – Conway 03813 or Wolfeboro 03894;

(3) Belknap – Laconia 03246 or Alton 03809;

(4) Sullivan – Claremont 03743 or Newport 03773;

(5) Strafford – Rochester 03867 or Dover 03820;

(6) Cheshire – Keene 03431 or Jaffrey 03452;

(7) Hillsborough – Nashua 03060 or Manchester 03103; and

(8) Rockingham – Portsmouth 03801 or Derry 03038.

(c) A carrier shall meet the service specific requirement for Merrimack County for persons living in the Concord 03301 zip code.

(d) A carrier shall meet the service specific requirement for Grafton County for persons living in 2 of the following zip codes:

(1) Littleton 03561;

(2) Plymouth 03264; or

(3) Lebanon 03748.

(e) Geographic access standards are based on the following county groupings: “Rural”, “Middle”, and “Urban”. Maximum travel distances or times are based on the service type, county, and specific zip code within the county as follows:

(1) For urban counties, including Strafford, Hillsborough, and Rockingham counties:

a. Ten miles or 15 minutes driving time for core services;

b. Twenty miles or 30 minutes driving time for common services; and

c. Forty miles or one hour driving time for specialized services;

(2) For middle counties, including Merrimack, Belknap, Cheshire, Grafton, Carroll, and Sullivan counties:

a. Twenty miles or 40 minutes driving time for core services;

b. Forty miles or 80 minutes driving time for common services; and

c. Seventy miles or 2 hours driving time for specialized services; and

(3) For rural counties, including Coos county:

a. Thirty miles or one hour driving time for core services;

b. Eighty miles or 2 hours driving time for common services; and

c. One hundred twenty-five miles or 2½ hours driving time for specialized services.

Source. #7701, eff 8-1-02; ss by #9722, eff 8-1-10 (from Ins 2701.04); ss by #12565, eff 8-1-18

Ins 2701.07 Classification of Services as “Core”, “Common”, and “Specialized”.

(a) The purpose of this section is to classify services into 3 categories, core, common, and specialized, for the purposes of network adequacy reviews.

(b) The following services shall be classified as “Core” services for purposes of network adequacy review:

(1) Alcohol or drug treatment in an ambulatory setting for any of the following:

a. Crisis intervention;

b. Detoxification; or

c. Medical or somatic treatment;

(2) Alcohol or drug assessment;

(3) Alcohol or drug case management;

(4) Alcohol or drug services group counseling by clinician;

(5) Alcohol or drug intensive outpatient treatment;

(6) Alcohol or drug methadone or equivalent administration;

(7) Alcohol or drug subacute detox;

(8) Alcohol or drug treatment medication training and support;

(9) Ambulance;

(10) Behavioral health (BH) or Substance use disorder (SUD) comprehensive community support services;

(11) BH or SUD comprehensive medication services;

(12) Behavioral health counseling and therapy, or screening to determine eligibility for admission to a treatment program;

(13) Behavioral health partial hospitalization;

(14) Behavioral health short term residential;

(15) Chiropractic;

(16) Contraceptive services;

(17) Dental diagnostic services;

(18) Dental preventive services;

(19) Dental restorative services;

(20) Diagnostic physical therapy (PT) evaluation;

(21) Individual or group counseling for mental health (MH) or SUD;

(22) Mammogram;

(23) PT procedures not requiring specialized equipment;

(24) Preventive and associated routine care, adult;

(25) Preventive and associated routine care, pediatric;

(26) Routine electrocardiogram (EKG);

(27) Routine immunizations and injections, adult;

(28) Routine immunizations and injections, pediatric;

(29) Screening and assessment services for MH or SUD;

(30) Suture of non-life-threatening wound;

(31) Therapeutic behavioral services provided in segments defined by number of minutes or on a per diem basis;

(32) Urgent care; and

(33) Venipuncture or collection of capillary blood.

(c) The following services shall be classified as “Common” services for purposes of network adequacy review:

(1) Allergen immunotherapy;

(2) Ankle X-ray;

(3) Appling splints;

(4) Asthma or bronchial care;

(5) Audiologic function tests;

(6) Biopsy of skin lesions;

(7) Cardiac monitoring or stress testing;

(8) Cardioversion;

(9) Cataract surgery;

(10) Chemotherapy;

(11) Chest X-ray;

(12) Complex closure of wounds;

(13) Corpus uteri biopsy or endometrial sampling;

(14) Cystoscopy;

(15) Dental adjunctive general services;

(16) Dental endodontics;

(17) Dental implant service;

(18) Dental oral and maxillofacial surgery;

(19) Dental orthodontics;

(20) Dental periodontics;

(21) Dental prosthodontics which are removable;

(22) Destruction of skin lesions;

(23) Developmental, hearing, and vision testing, pediatric;

(24) Diagnosis and therapy for rheumatic disease;

(25) Electroencephalography (EEG);

(26) Echocardiography;

(27) Electromyography;

(28) Endoscopy;

(29) Excision of lesions, benign;

(30) Eye care medical treatment;

(31) Eye exam;

(32) Gastrointestinal endoscopy;

(33) General psychiatric care on an inpatient basis;

(34) Incision and drainage, deep abscess;

(35) Injection of eye drug;

(36) Injection of spine;

(37) Injection of tendon or joint;

(38) Insertion or removal of intrauterine contraceptive device;

(39) Knee arthroscopy;

(40) Laparoscopic surgery;

(41) Laryngoscopy;

(42) Nasal endoscopy;

(43) Non-routine venipuncture;

(44) Occupational therapy;

(45) Osteopathic manipulation;

(46) Paring or cutting benign lesion;

(47) Partial mastectomy;

(48) Peripherally inserted central catheter (PICC);

(49) Psychiatric diagnostic evaluation with medical services;

(50) Renal dialysis;

(51) Routine endoscopy;

(52) Routine pre-natal care;

(53) Skin graft;

(54) Speech therapy;

(55) Spinal injection or nerve block;

(56) Surgical debridement of nails;

(57) Thoracentesis;

(58) Wax or foreign body removal from ear;

(59) Wound debridement; and

(61) X-ray absorptiometry or bone density study.

(d) The following services shall be classified as “Specialized” services for purposes of network adequacy review:

(1) Alcohol or drug acute detox;

(2) Allergy testing;

(3) Amputation of toe or foot;

(4) Arthrodesis;

(5) Biopsy or excision of lymph nodes;

(6) Bone biopsy or procedure to obtain tissue;

(7) Breast repair or reconstruction;

(8) Bronchoscopy;

(9) Cardiac catheterization;

(10) Complete mastectomy;

(11) Complex endoscopy;

(12) Dental prosthodontics which are fixed;

(13) Draw blood off cardiovascular venous device;

(14) Emergency endotracheal intubation;

(15) Excision of lesions, malignant;

(16) Hysterectomy;

(17) Incision and drainage, skin or wound;

(18) Insertion of central venous catheter;

(19) Low back disk surgery;

(20) Magnetic resonance imaging (MRI) of lower extremity;

(21) Radiation therapy;

(22) Radiation treatment;

(23) Radiation treatment management;

(24) Repair of shoulder joint;

(25) Replacement of aortic valve;

(26) Routine obstetrical care with vaginal delivery;

(27) Spinal bone autograft or allograft;

(28) Spinal instrumentation;

(29) Surgical laparoscopy;

(30) Surgical vascular endoscopy;

(31) Tibia fracture treatment;

(32) Total hip replacement;

(33) Total knee replacement; and

(34) Treatment of ankle fracture.

(e) All other covered services shall be available from providers within New England.

(f) Prescription medications from a retail pharmacy shall be available within the time and distance standards equal to those associated with the “Core” services for a specific county.

Source. #7701, eff 8-1-02; ss by #9399, eff 3-1-09; ss by #9722, eff 8-1-10 (from Ins 2701.05); ss by #12565, eff 8-1-18

Ins 2701.08 Exceptions.

(a) The department shall grant a carrier an exception to the standards for geographic accessibility in Ins 2701.06 where:

(1) A health carrier demonstrates that an insufficient number of qualified providers or facilities are available in the county to meet the geographic accessibility standards contained in Ins 2701.06;

(2) A health carrier demonstrates that the carrier’s failure to develop a provider network in a given county that is sufficient in number and type of providers to meet all of the standards in Ins 2701.06 is due to the refusal of a local provider to accept a commercially reasonable rate, fee, term, or condition and that the health carrier has taken steps to effectively mitigate the detrimental impact on covered persons;

(3) A health carrier demonstrates that the required service can be obtained through the use of telemedicine or telehealth from an in-network participating provider;

(4) A health carrier arranges to pay for the required service from an out-of-network provider, and the member is informed prior to the treatment that they can access services from the provider with no additional cost sharing beyond the benefit patient responsibility to an in-network provider; or

(5) A health carrier has requested and been granted a waiver under Ins 2701.14 with respect to another component of the geographic accessibility standard.

(b) The department shall grant a carrier an exception excluding one or more of the services listed in Ins 2701.07 from the network adequacy analysis where a health carrier can establish that the service in question is not a covered service for the health benefit plan to which the network applies and that exclusion of the service is appropriate for that coverage.

Source. #7701, eff 8-1-02; ss by #9399, eff 3-1-09 ss by #9722, eff 8-1-10 (from Ins 2701.06); ss by #12565, eff 8-1-18

Ins 2701.09 Standards for Waiting Times for Appointments and Access to After-Hours Care.

(a) Standard waiting times for appointments shall be measured from the initial request for an appointment.

(b) For behavioral health services, the carrier shall ensure that covered persons may obtain an initial appointment with an in-network provider within:

(1) Six hours for a non-life-threatening emergency;

(2) Forty-eight hours for urgent care; and

(3) Ten business days for an initial or evaluation visit.

(c) For primary care provider services, the carrier shall ensure that covered persons may obtain an initial appointment with an in-network provider within:

(1) Forty-eight hours for urgent care; and

(2) Thirty days for other routine care, including an initial or evaluation visit.

(d) For substance use disorder services for which prior authorization requirements are governed by RSA 420-J:17, health carriers shall comply with the requirements of that section.

(e) For services not governed by RSA 420-J:17, health carriers shall ensure that all covered persons have access to a utilization reviewer to make prior approval or pre-authorization decisions if required under the terms of the coverage.

Source. #9722, eff 8-1-10 (from Ins 2701.07); ss by #12565, eff 8-1-18 (formerly Ins 2701.07)

Ins 2701.10 Choice of and Access to Providers of Specialty Care.

(a) Each health carrier shall establish policies and procedures through which a member with a condition that requires care from a specialist may obtain a referral to a network specialist or specialist group practice, subject to the utilization review procedures used by the health carrier. For purposes of this provision, “referral” means a referral for care to be provided by a network specialist or specialist group practice that authorizes a visit or series of visits with the specialist or specialist group practice for either a specific time period or a limited number of visits and which is provided according to a treatment plan developed by the covered person’s primary care provider, a specialist, the covered person, and the plan. The carrier shall not require an additional referral to the same specialist or specialist group practice within 6 months, when the patient is expected by the referring provider to need care for at least this period of time. The carrier shall accept a referral that is made to a specialist group practice and shall not require the referring provider to specify an individual practitioner in the referral.

(b) Each health carrier shall ensure that covered persons may obtain a referral to a health care provider outside of the health carrier’s network when the health carrier does not have a health care provider with appropriate training and experience within its network who can meet the particular health care needs of the covered person. Services provided by out-of-network providers shall be subject to the utilization review procedures used by the health carrier. The covered person shall not be responsible for any additional costs incurred by the health carrier under this paragraph other than any applicable co-payment, coinsurance, or deductible.

Source. #9722, eff 8-1-10 (from Ins 2701.08); ss by #12565, eff 8-1-18 (formerly Ins 2701.08)

Ins 2701.11 Reporting Requirement.

(a) Each health carrier shall, by July 1 or at the time its plans and rates for the upcoming plan year are filed with the department for review, include a network provider listing for each of the health benefit plans that the carrier offers in this state using a template provided by the commissioner. The network adequacy filing shall include a certification of compliance with the requirements of this part and shall be signed by an authorized representative of the company. The carrier shall certify that the provider listing is accurate with provider contracts effective at the time of the submission. If there are anticipated losses of in-network providers that will take place within the following 60 days, the carrier shall disclose this with the network filing. The carrier may indicate that a potential contract dispute and the anticipated provider losses are confidential, and the department shall not release this information if so designated. The carrier shall identify any services or locations in which the provider contract excludes services the provider typically performs and that are a covered benefit.

(b) The network adequacy filing prepared by the health carrier shall use a template provided by the commissioner which shall describe and contain the following:

(1) A description of the network associated with each health benefit plan offered by the carrier, including a list of the network providers as follows:

a. For each plan, required information shall include:

1. Plan identifier;

2. Network name; and

3. New Hampshire hospitals in network;

b. For each provider, required information shall include:

1. Provider name;

2. Carrier specific provider identifier number;

3. National provider identifier (NPI) number;

4. Provider address; and

5. Indication of any services included in the network adequacy requirement that are exclusively provided through telemedicine or telehealth; and

c. For each network, required information shall include:

1. Network name;

2. Network ID; and

3. Network URL;

(2) The health carrier’s procedures for making referrals within and outside its network;

(3) The health carrier’s process for monitoring and assuring on an ongoing basis the sufficiency of its network to meet the health care needs of persons who enroll in managed care plans;

(4) The health carrier’s method of informing covered persons of the requirements and procedures for gaining access to network providers, including but not limited to the following:

a. The process for choosing and changing network providers;

b. The process for providing and approving emergency, urgent, and specialty care;

c. The identity of all of the plan’s participating providers and facilities, including a specification of those participating providers, if any, that are accessible only at a reduced benefit level; and

d. Whether and when referral options are restricted to less than all providers in the network who are qualified to provide covered specialty services;

(5) The health carrier’s system for ensuring the coordination of care for covered persons referred to specialty providers, for covered persons using ancillary services, including social services, behavioral health services, and other community resources, and for ensuring appropriate discharge planning;

(6) The health carrier’s process for enabling covered persons to change primary care providers; and

(7) The health carrier’s proposed plan for providing care in the event of contract termination between the health carrier and any of its participating providers or in the event of the health carrier’s insolvency or other inability to continue operations, explaining how impacted covered persons will be notified of the contract termination, or the health carrier’s insolvency or other cessation of operations, and transferred to other providers in a timely manner.

(c) If the identical provider network is associated with more than one health benefit plan, a single network adequacy filing shall be prepared for that network, and a single health care certification of compliance report shall be filed. The network adequacy report shall identify all health benefit plans using the identical provider network.

(d) In addition to the annual network adequacy filing, a carrier shall notify the commissioner in writing, including identifying the providers, within 10 days of any of the following events:

(1) The net loss of 10% or more of its total number of primary care providers in any county within any 30-day period;

(2) The net loss of 10% or more of its total number of providers performing individual or group counseling for mental health or substance use disorders in any county within any 30-day period;

(3) The loss of one or more network hospitals; or

(4) In the carrier’s estimation, the product network is no longer meeting a network adequacy standard with respect to one or more counties.

(e) The carrier shall supply the commissioner with a new provider file within ten days of a request by the commissioner.

(f) A carrier introducing a new product with a new network shall submit the network adequacy report in conjunction with the rate and form filing, reflecting the network contracts in place as of the date of filing. If the network associated with the new product is unchanged except for typical minor changes that take place over time as providers move in and out of regions, the carrier is not required to submit a network filing but shall identify the previously submitted network associated with the new product.

Source. #12565, eff 8-1-18 (formerly Ins 2701.09)

Ins 2701.12 Provider Directories.

(a) For each of its network plans, a health carrier shall electronically post and maintain a current and accurate provider directory in accordance with the following requirements and with the information and search functions described in (c) below:

(1) In making the directory available electronically, the health carrier shall ensure that the general public is able to view all of the current providers for a plan through a clearly identifiable link or tab, without creating or accessing an account or entering a policy or contract number;

(2) The health carrier shall update the provider directory for each network plan at least monthly;

(3) The health carrier shall periodically audit its provider directories for accuracy and retain documentation of such an audit to be made available to the commissioner upon request;

(4) For each network plan, a health carrier shall include, in an electronic directory, the following information stated in plain language:

a. A description of the criteria the carrier used to build its provider network;

b. If applicable, a description of the criteria the carrier used to tier providers;

c. If applicable, a description of the different provider tiers or levels in the network and, for each provider, hospital, or other type of facility in the network, identification of the tier in which each is placed; and

d. If applicable, disclosure that a specific provider is a network plan provider only for the specific services listed with the disclosure;

(5) A health carrier shall clearly indicate which provider directory applies to which network plan, including the specific name of the network plan as marketed and issued in this state;

(6) A health carrier shall include a customer service email address and telephone number or electronic link that covered persons or the general public may use to notify the health carrier of inaccurate provider directory information; and

(7) For the information required pursuant to (b), (c), and (d) below, a health carrier shall indicate in the directory the source of the information and any limitations, if applicable.

(b) For each network plan, the health carrier’s electronic provider directory shall include the following information in a searchable format:

(1) For health care professionals:

a. Name;

b. Gender;

c. Participating office location(s);

d. Specialty, if applicable;

e. Medical group affiliations, if applicable;

f. Facility affiliations, if applicable;

g. Participating facility affiliations, if applicable;

h. Languages spoken other than English, if applicable; and

i. Whether accepting new patients;

(2) For hospitals:

a. Hospital name;

b. Hospital type, for example, acute, rehabilitation, children’s, cancer, etc.;

c. Participating hospital location; and

d. Hospital accreditation status; and

(3) For facilities other than hospitals:

a. Facility name;

b. Facility type;

c. Types of services performed; and

d. Participating facility location(s).

(c) For each network plan, a health carrier shall make available in its electronic provider directory, the following information:

(1) For health care professionals:

a. Contact information;

b. Board certification(s); and

c. Languages spoken other than English by clinical staff, if applicable; and

(2) For hospitals and other facilities, a telephone number.

(d) Each directory shall include a date and a customer service telephone number and be accompanied by a disclosure by the health carrier that the information in the directory is accurate as of the date of printing and that covered persons or prospective covered persons should consult the carrier’s electronic provider directory or call the customer service number to obtain current provider directory information.

Source. #12565, eff 8-1-18

Ins 2701.13 Enforcement. If the commissioner determines that a health carrier has not contracted with a sufficient number of participating providers to assure that covered persons have accessible health care services in a geographic area or that a health carrier’s health care certification of compliance report does not assure reasonable access to covered benefits, the commissioner shall issue an order requiring the health carrier to institute a corrective action, or shall use other enforcement powers under RSA 420-J to ensure that covered persons have access to covered benefits.

Source. #12565, eff 8-1-18 (formerly Ins 2701.10)

Ins 2701.14 Waiver of Rules.

(a) The commissioner, upon the commissioner’s own initiative or upon request by an insurer, shall waive any requirement of this chapter if such waiver does not contradict the objective or intent of the rule and:

(1) Applying the rule provision would cause confusion or would be misleading to

(2) The rule provision is in whole or in part inapplicable to the given circumstances;

(3) There are specific circumstances unique to the situation such that strict compliance with the rule would be onerous without promoting the objective or intent of the rule provision; or

(4) Any other similar extenuating circumstances exist such that application of an alternative standard or procedure better promotes the objective or intent of the rule provision.

(b) No requirement prescribed by statute shall be waived unless expressly authorized by law.

(c) Any person or entity seeking a waiver shall make a request in writing.

(d) A request for a waiver shall specify the basis for the waiver and proposed alternative, if any.

(e) The commissioner shall report publicly any waiver granted on the department’s website at https://www.nh.gov/insurance/.

Source. #12565, eff 8-1-18

PART Ins 2702 PARITY IN MENTAL HEALTH AND SUBSTANCE USE DISORDER BENEFITS

Statutory Authority: RSA 400-A:15, I.; RSA 415:18-a, VIII

Ins 2702.01 Purpose. The purpose of these rules is to implement the requirements of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), as amended, for group health insurance coverage that is provided to employers.

Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18

Ins 2702.02 Scope and Applicability. The requirements of this part shall apply to all health insurance issuers offering health insurance coverage in connection with a group health insurance plan that provides coverage to a group employer.

Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18

Ins 2702.03 Definitions.

(a) “Group health insurance coverage” means, for the purpose of Ins 2702, health coverage sold under RSA 420-G:2 IV.

(b) “Mental health benefits” means benefits with respect to services for mental health conditions, as defined under the terms of group health insurance coverage, and in accordance with applicable federal and state law.

(c) “Substance use disorder benefits” means benefits with respect to services for substance use disorders, as defined under the terms of the group health insurance coverage, and in accordance with applicable federal and state law.

Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18

Ins 2702.04 Parity Requirements. Group health insurance coverage offered by an insurer in connection with a group health plan issued to an employer and that provides health coverage sold under RSA420-G:2, IX must offer mental health and substance use disorder benefits coverage as required under RSA 415:18-a in compliance with the federal MHPAEA of 2008, as amended, and federal regulations adopted thereunder.

Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18

Ins 2702.05 Waiver of Rules.

(a) The commissioner, upon the commissioner’s own initiative or upon request by an insurer, shall waive any requirement of this part if such waiver does not contradict the objective or intent of the rule and:

(1) Applying the rule provision would cause confusion or would be misleading to consumers;

(2) The rule provision is in whole or in part inapplicable to the given circumstances;

(3) There are specific circumstances unique to the situation such that strict compliance with the rule would be onerous without promoting the objective or intent of the rule provision; or

(4) Any other similar extenuating circumstances exist such that application of an alternative standard or procedure better promotes the objective or intent of the rule provision.

(b) No requirement prescribed by statute shall be waived unless expressly authorized by law.

(c) Any person or entity seeking a waiver shall make a request in writing.

(d) A request for a waiver shall specify the basis for the waiver and proposed alternative, if any.

Source. #9809, eff 11-8-10; ss by #12685, eff 12-3-18

PART Ins 2703 EXTERNAL REVIEW

Statutory Authority: RSA 400-A:15 and RSA 420-J:12

Ins 2703.01 Applicability and Scope.

(a) Except as provided in (b) below, the external review requirements set forth in this rule shall apply to all health carriers that provide or perform utilization review. Any health carrier that makes an adverse determination concerning a covered person shall be considered to be performing utilization review.

(b) The external review requirements set forth in this part shall not apply to determinations relating to:

(1) Long-term care insurance, as defined by RSA 415-D;

(2) Coverage under a plan through Medicare, Medicaid, the state Children’s Health Insurance Program, Title XXI of the Social Security Act, including services provided under these programs but through a contracted health carrier;

(3) Health care services provided to inmates by the department of corrections;

(4) The federal employees health benefits program;

(5) Coverage issued under chapter 55 of title 10 of the United States Code regarding medical and dental care for members of the Armed Forces;

(6) Coverage issued as supplemental to liability insurance, workers’ compensation or similar insurance, automobile medical-payment insurance, or any insurance under which benefits are payable with or without regard to fault, whether written on a group blanket or individual basis; or

(7) 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.

(c) The external review procedures set forth in this rule 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. #7539, eff 8-1-01; ss by 8862, eff 5-1-07 (from 2703.02); ss by#10918, eff 9-1-15

Ins 2703.02 Definitions. For the purpose of this rule:

(a) "Adverse determination" means a determination by a health carrier or its designee utilization review entity:

(1) Concerning a requested admission, availability of care, continued stay or other health care service, supply or drug that is a covered benefit under the terms of the covered person’s health benefit plan or that could be a covered benefit under some circumstances;

(2) In which the health carrier or its designee utilization review entity finds that, based upon the information provided, the requested service, supply or drug does not meet the health carrier's requirements for medical necessity, appropriateness, health care setting, level of care or effectiveness; and

(3) In which the requested service, supply or drug, or payment for such, is therefore denied, reduced, or terminated.

(b) “Ambulatory review” means utilization review of health care services performed or provided in an outpatient setting.

(c) “Authorized representative” means a person to whom a covered person has given consent to represent the covered person in an external review. Authorized representative can include the covered person's treating health care professional.

(d) “Benefits denial” means a denial, reduction, or termination by a health carrier of a requested health care service, supply or drug, or a denial of payment for such, which is made on the basis of a finding by the health carrier that the requested service, supply or drug is specifically excluded from coverage under the terms of the covered person’s health benefit plan and is therefore not a covered benefit.

(e) “Case management” means a coordinated set of activities conducted for individual patient management of serious, complicated, protracted or other health conditions.

(f) “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.

(g) “Clinical review criteria” means the written screening procedures, decision abstracts, clinical protocols and practice guidelines used by a health carrier to determine the necessity and appropriateness of health care services.

(h) “Commissioner” means the insurance commissioner.

(i) “Concurrent review” means utilization review conducted during a patient’s hospital stay or course of treatment.

(j) “Covered benefits” or “benefits” means those health care services to which a covered person is entitled under the terms of a health benefit plan.

(k) “Covered person” means a policyholder, subscriber, enrollee or other individual participating in a health benefit plan.

(l) “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.

(m) “Disclose” means to release, transfer or otherwise divulge protected health information to any person other than the individual who is the subject of the protected health information.

(n) "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.

(o) “Final adverse determination” means an adverse determination that has been upheld by a health carrier, or its designee utilization review organization, at the completion of the health carrier’s standard, second level grievance review process as set forth in RSA 420-J:5, V or expedited, second level grievance review process as set forth in RSA 420-J:5, VI (e).

(p) “Health benefit plan” means a policy, contract, certificate or agreement offered or issued by a health carrier to provide, deliver, arrange for, pay for or reimburse any of the costs of health care services.

(q) “Health care professional” means a physician or other health care practitioner licensed, accredited or certified to perform specified health services consistent with state law.

(r) “Health care provider” or “provider” means a health care professional or a facility.

(s) "Health care services" or "health services" means services for the diagnosis, prevention, treatment, cure or relief of a health condition, illness, injury or disease.

(t) "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.

(u) “Health information” means information or data, whether oral or recorded in any form or medium, and personal facts or information about events or relationships that relates to:

(1) The past, present or future physical, mental, or behavioral health or condition of an individual or a member of the individual’s family;

(2) The provision of health care services to an individual; or

(3) Payment for the provision of health care services to an individual.

(v) "Independent review organization" means an entity that employs or contracts with clinical peers to conduct independent external reviews of health carrier determinations.

(w) “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.

(x) “Prospective review” means utilization review conducted prior to an admission or a course of treatment.

(y) “Protected health information” means health information:

(1) That identifies an individual who is the subject of the information; or

(2) With respect to which there is a reasonable basis to believe that the information could be used to identify an individual.

(z) “Retrospective review” means a review of medical necessity conducted after services have been provided to a patient, but does not include the review of a claim that is limited to an evaluation of reimbursement levels, veracity of documentation, accuracy of coding or adjudication for payment.

(aa) “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.

(ab) “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, or settings. Techniques can include ambulatory review, prospective review, second opinion, certification, concurrent review, case management, discharge planning, or retrospective review.

(ac) “Utilization review organization” means an entity that conducts utilization review, other than a health carrier performing a review for its own health plans.

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07 (from Ins 2703.01); ss by #10918, eff 9-1-15

Ins 2703.03 The Right to External Review.

(a) 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:

(1) The subject of the request for external review is an adverse determination;

(2) 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 health carrier's final denial decision, or if the health carrier has failed to make a decision on appeal within the applicable time frame, then within 180 days of the date the decision was due; and

(3) The category of health care services or type of health benefit plan that is the subject of the request for external review is not excluded from the external review provisions of this rule pursuant to Ins 2703.02 (b).

(b) Benefit denials concerning requested health care services, supplies or drugs that could not be considered a covered benefit under any circumstance shall not be eligible for external review. However, a covered person may receive external review of a benefit denial if it is also an adverse determination.

(c) A benefit denial which shall constitute an adverse determination includes, but is not limited to, the following:

(1) Experimental or investigational treatments, where the health carrier denies requested care because the covered person’s health benefit plan does not cover experimental or investigational treatment, but the covered person requests external review on the basis that the treatment in question is not experimental or investigational;

(2) Cosmetic procedures, where the health carrier denies requested care because the covered person’s health benefit plan does not cover cosmetic procedures, but the covered person requests external review on the basis that the service is needed for medical rather than cosmetic reasons; and

(3) Access to out-of-network health care professionals or providers, where the health carrier denies a referral because treatment by out-of-network professionals or providers is not covered unless the appropriate clinical expertise is not available within the health carrier’s network, but the covered person requests external review on the basis that the health carrier’s provider network does not include professionals or providers with the appropriate clinical expertise.

(d) In requesting external review, a covered person shall provide the following information:

(1) The name of the covered person;

(2) The covered person's mailing address, date of birth, telephone number and insurance identification number;

(3) The employer's name and telephone number;

(4) The carrier's name, mailing address, telephone number, and name of contact at the carrier;

(5) The name of the provider, the type of provider, the provider's mailing address, and telephone number;

(6) If applicable, the name, address and telephone number of the authorized representative and a signature giving the representative authority to represent the covered person;

(7) If applicable, a request for a telephone conference;

(8) A statement describing the health care decision in dispute;

(9) A photocopy of the covered person's insurance card and certificate of coverage;

(10) A copy of the final decision of the carrier denying the claim on internal review; and

(11) A statement authorizing the release of the covered person's medical records.

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.04 Notice of Right to External Review.

(a) Health carriers shall provide to covered persons the insurance department’s “Managed Care Consumer Guide to External Appeal” and the insurance department’s “Request for Independent External Appeal of a Health Care Decision” in each of the following circumstances:

(1) The publications shall be attached to the policy, certificate, membership booklet, or other evidence of coverage provided to covered persons;

(2) The publications shall be included with the final adverse determination provided to covered persons upon completion of internal grievance review or expedited internal grievance review;

(3) If the health carrier agrees to submit the determination to independent external review prior to completion of internal review, the publications shall be provided at the time such agreement is made; and

(4) If the covered person has requested standard or expedited internal grievance review, and the health carrier has failed to issue a decision within the required time frames, the publications shall be provided promptly upon the expiration of the time period for issuing the decision.

(b) Pursuant to the provisions of RSA 420-J:5, V. (a) (3), a notice shall be included with the final determination provided to covered persons upon completion of standard internal grievance review or expedited internal grievance review.

(c) The notice in (b) above shall be:

(1) In bold;

(2) Set out in at least 16 point type, and the remainder of the text in at least 12 point type; and

(3) Printed as follows:

“NOTICE OF RIGHT TO AN EXTERNAL APPEAL

OF YOUR HEALTH INSURER’S DECISION

This is our final decision in the internal grievance review process. You may have a legal right to have our decision reviewed by an organization that is independent and neutral. This process is called Independent External Review and is overseen by the New Hampshire Insurance Department. There is no cost to you for an external appeal.

YOU MUST ASK FOR THIS REVIEW NO LATER THAN 180

DAYS AFTER THE DATE OF THIS NOTICE

To request an independent external review, consult the enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed Request for Independent External Appeal of a Health Care Decision, and attach all supporting documentation.”

(d) The person seeking external review shall mail or deliver the completed request to the New Hampshire insurance department at:

Independent External Review

New Hampshire Insurance Department

21 South Fruit Street, Suite 14

Concord, NH 03301

(e) The notice in (b) above shall also include a statement as follows:

“If your medical condition is such that waiting for the standard external review process to be completed would seriously jeopardize your life or health or would jeopardize your ability to regain maximum function, you may be eligible for expedited external review.

If you have any questions about the external review process, please call the New Hampshire Insurance Department at 1-800-852-3416 and ask to speak to a consumer assistant.”

(f) Pursuant to the provisions of RSA 420-J:5, V (a)(3), if the health carrier agrees to submit the determination to independent external review prior to completion of internal review, the following notice shall be provided to the covered person at the time of the agreement:

(g) The notice in (f) above shall be:

(1) In bold;

(2) Set out in at least 16 point type, and the remainder of the text in at least 12 point type; and

(3) Printed as follows:

“NOTICE OF RIGHT TO AN EXTERNAL APPEAL

OF YOUR HEALTH INSURER’S DECISION

We have agreed to submit your appeal of our determination to an independent reviewer prior to completion or our internal grievance review process. This means that you may now have our decision reviewed by an organization that is independent and neutral. This process is called Independent External Review and is overseen by the New Hampshire Insurance Department. There is no cost to you for an external appeal.

YOU MUST ASK FOR THIS REVIEW NO LATER THAN 180 DAYS

AFTER THE DATE OF THIS NOTICE

To request an independent external review, consult the enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed Request for Independent External Appeal of a Health Care Decision, and attach all supporting documentation.

(h) The person seeking external review shall mail or deliver the completed request to the New Hampshire insurance department at:

Independent External Review

New Hampshire Insurance Department

21 South Fruit Street, Suite 14

Concord, NH 03301

(i) The notice in (f) above shall also include a statement as follows:

“If your medical condition is such that waiting for the standard external review process to be completed would seriously jeopardize your life or health or would jeopardize your ability to regain maximum function, you may be eligible for expedited external review.

If you have any questions about the external review process, please call the New Hampshire Insurance Department at 1-800-852-3416 and ask to speak to a consumer assistant.”

(j) Pursuant to RSA 420-J:5, V (a)(3), if the covered person has requested standard or expedited internal grievance review and the health carrier has failed to issue a decision within the required time frames, the health carrier shall send the following notice to the covered person promptly upon the expiration of the time period for issuing the decision:

(k) The notice in (j) above shall be:

(1) In bold;

(2) Set out in at least 16 point type, and the remainder of the text in at least 12 point type; and

(3) Printed as follows:

“NOTICE OF RIGHT TO AN EXTERNAL APPEAL

OF YOUR HEALTH INSURER’S DECISION

We have agreed to submit your appeal of our determination to an independent reviewer prior to completion or our internal grievance review process. This means that you may now have our decision reviewed by an organization that is independent and neutral. This process is called Independent External Review and is overseen by the New Hampshire Insurance Department. There is no cost to you for an external appeal.

YOU MUST ASK FOR THIS REVIEW NO LATER THAN 180 DAYS

AFTER THE DATE OF THIS NOTICE

To request an independent external review, consult the enclosed Managed Care Consumer Guide to External Appeal, fill out the enclosed Request for Independent External Appeal of a Health Care Decision, and attach all supporting documentation."

(1) The person seeking external review shall mail or deliver the completed request to the New Hampshire insurance department at:

Independent External Review

New Hampshire Insurance Department

21 South Fruit Street, Suite 14

Concord, NH 03301

(m) The notice in (j) above shall also include a statement as follows:

"If your medical condition is such that waiting for the standard external review process to be completed would seriously jeopardize your life or health or would jeopardize your ability to regain maximum function, you may be eligible for expedited external review. If you have any questions about the external review process, please call the New Hampshire Insurance Department at 1-800-852-3416 and ask to speak to a consumer assistant.”

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.05 Standard External Review. Standard external review shall be conducted as follows:

(a) Within 7 business days after the date of receipt of a request for external review, the department shall complete a preliminary review of the request to determine whether:

(1) The individual is or was a covered person under the health benefit plan;

(2) The determination that is the subject of the request for external review meets the conditions of eligibility for external review stated in Ins 2703.03 (a); and

(3) The covered person has provided all the information and forms that are necessary to process a request for an external review.

(b) Upon completion of the preliminary review pursuant to Ins 2703.05 (a), the department shall immediately notify the covered person or the covered person's authorized representative in writing:

(1) Whether the request is complete; and

(2) Whether the request has been accepted for external review.

(c) If the request is not complete, the department 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.

(d) If the request for external review is accepted, the department shall:

(1) Notify the covered person that new or additional information can be submitted to the insurance department;

(2) Notify the covered person that oral testimony shall be permitted only 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;

(3) Notify the covered person that the request for a hearing shall be made no less than 10 days after the date of issuance of the notice of acceptance;

(4) Notify the covered person that if the request for oral testimony is accepted that oral testimony shall be taken within 20 days of the date of notice of acceptance and that a representative of the health carrier shall be permitted to participate in the hearing or teleconference; and

(5) Notify the health carrier in writing of the request for external review and its acceptance, and provide the health carrier with a copy of the request and of any supporting documentation submitted by the covered person or the covered person’s authorized representative.

(e) If the request for external review is not accepted, the department 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.

(f) 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 Ins 2703.07 to conduct the external review.

(g) Within 10 days after the date of issuance of the notice provided pursuant to Ins 2703.05 (b)(2), the health carrier or its designated utilization review organization shall provide to the selected independent review organization, the covered person, and the insurance department all information in its possession that is relevant to the adjudication of the matter in dispute, including:

(1) The terms of agreement of the health benefit plan, including the evidence of coverage, benefit summary, or other similar document;

(2) 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;

(3) A summary description of the applicable issues, including a statement of the health carrier's final determination;

(4) The clinical review criteria used and the clinical reasons for the determination;

(5) The relevant portions of the carrier's utilization management plan;

(6) Any communications between the covered person and the health carrier regarding the internal or external review of the claim; and

(7) All other documents, information, or criteria relied upon by the carrier in making its determination.

(h) Failure by the health carrier or the covered person to provide the documents and information required in Ins 2703.05 (g) or Ins 2703.05 (d) (1) within the specified time frame shall not delay the conduct of the external review. If upon receipt of a notice from the insurance department the health carrier or its designee utilization review organization has failed to provide the documents and information within the time frame specified in paragraph (g), the commissioner shall terminate the external review and make a decision to reverse the adverse determination or final determination.

(i) The selected independent review organization shall review all of the information and documents received from the carrier pursuant to Ins 2703.05 (g) 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 Ins 2703.05 (d) (1) and any testimony provided.

(j) 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.

(k) In conducting the review, the independent review organization shall review the correctness of all previously determined facts, allow the introduction of new information, and make a decision that is independent of the decisions or conclusions made by the health carrier during internal review.

(l) 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, the health carrier, and the commissioner in writing within 20 days of the date that the record of the case is closed pursuant to Ins 2703.05 (d) (1). 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, and a description of the qualifications of the reviewer or reviewers.

(m) Upon receipt of a notice of a decision pursuant to Ins 2703.05 (j) reversing the adverse determination or final adverse determination, the health carrier shall immediately approve the coverage that was the subject of the adverse determination or final adverse determination and provide confirmation of this to the insurance department. The confirmation provided to the insurance department shall include a statement of the amount of payment that was approved and the amount charged.

(n) Upon receipt of the information required to be forwarded by the covered person or the commissioner to the health carrier pursuant to Ins 2703.05 (d) (1) and (2) and prior to receipt of the decision of the selected independent review organization, the health carrier may reconsider the adverse determination or final adverse determination that is the subject of the external review. Reconsideration by the health carrier of its adverse determination or final adverse determination shall not delay or terminate the external review.

(o) The external review shall only be terminated if the health carrier decides, upon completion of its reconsideration, to reverse its adverse determination or final adverse determination and provide coverage or payment for the health care service that is the subject of the adverse determination or final adverse determination.

(p) Immediately upon making the decision to reverse its adverse determination or final adverse determination, as provided in Ins 2703.05 (m), the health carrier shall notify the covered person, and if applicable, the covered person’s authorized representative, the selected independent review organization, and the commissioner in writing of its decision and shall approve the coverage that was the subject of the adverse determination or final adverse determination. The selected independent review organization shall terminate the external review upon receipt of the notice from the health carrier and verification that coverage was approved.

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.06 Expedited External Review. Expedited external review shall be conducted as follows:

(a) Expedited external review shall be available when the covered person's treating health care provider certifies to the department 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. A person who meets the standard for expedited external review may pursue expedited external review simultaneous with the internal review process in RSA 420-J:5, even without a final adverse determination.

(b) Except to the extent that it is inconsistent with the provisions of this section, all requirements for the conduct of standard external review specified in Ins 2703.05 shall apply to expedited external review.

(c) At the time the department receives a request for an expedited external review, the department shall immediately make a determination whether the request meets the standard set forth in Ins 2703.06 (a) for expedited external review, as well as the reviewability requirements set forth in Ins 2703.05 (a). If these conditions are met, the department shall immediately notify the health carrier. If the request is not complete, the department 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.

(d) If the commissioner determines that the covered person is eligible for external review on an expedited basis, the department shall select and retain an independent review organization that is certified pursuant to Ins 2703.07 to conduct the expedited external review.

(e) The health carrier or its designated utilization review organization shall provide or transmit the documents and information specified in Ins 2703.05 (g) to the selected independent review organization electronically or by telephone or facsimile or any other available expeditious method within one business day of receiving notification from the department of the request for expedited external review and of the commissioner’s determination that the covered person is eligible for external review on an expedited basis.

(f) 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 by the commissioner's office.

(g) If the notice provided pursuant to Ins 2703.06 (f) was not in writing, within 2 business days after the date of providing that notice, the selected independent review organization shall:

(1) Provide written confirmation of the decision to the covered person or the covered person's authorized representative and the health carrier; and

(2) Include the information set forth in Ins 2703.05 (j).

(h) Upon receipt of a notice of a decision pursuant to Ins 2703.05 (j) reversing the adverse determination or final adverse determination, the health carrier shall immediately approve the coverage that was the subject of the adverse determination or final adverse determination and provide confirmation of this to the insurance department. The confirmation provided to the insurance department shall include a statement of the amount of payment that was approved.

(i) An expedited external review shall not be provided for determinations made by the health carrier on a retrospective basis.

(j) If the expedited external review concerns a concurrent review determination, the service shall be continued pending the completion of the external review process. 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 co-payment, coinsurance, or deductible incurred, pending the independent review organization's determination of an expedited external review.

(k) When a covered person has requested expedited, second-level internal grievance review with a health carrier, the health carriers shall immediately notify the insurance department of the existence of the request and of the expected time frame for making a decision on that request.

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.07 Certification of Independent Review Organizations.

(a) The certification of independent review organizations shall be conducted as follows:

(1) An independent review organization seeking certification shall supply the following information:

a. Name, address and telephone number of the organization;

b. The name, address, and telephone number of the chief executive officer;

c. The tax status and federal employer tax identification number;

d. The list of states where the organization is incorporated, licensed, certified, or otherwise authorized to conduct business;

e. A description of the organizational structure that identifies and explains the lines of authority within the organization itself and if applicable within a holding company or parent subsidiary system;

f. A description of the management of the organization, including the files and management responsibilities of the staff;

g. A description of the contracted service providers and clinical peer reviewers, as well as a description of the procedures used to ensure the adequacy of the network of clinical peer reviewers retained by the organization and the procedures used to ensure that the peer reviewers are adequately trained and appropriately licensed;

h. A list of all reviewers in the clinical peer review network including the name, license number and clinical discipline of each reviewer;

i. A description and copy of the quality assurance program established by the organizations, which specifically address the policies and procedures used to protect the confidentiality of medical and treatment records;

j. The name of the medical director, and a description of the medical director's qualifications;

k. A description of the procedures that will be used to ensure that standard and expedited appeals are conducted within the required time frames;

l. A description of the current financial status of the organization, including the most recent certified financial statement;

m. A list of fees that will be charged for independent review and an explanation of the methodology used to develop the fee schedule;

n. A conflict of interest attestation signed by each owner, officer, director, medical director or management employee of the applicant, which shall be supported by personal information including the name, address, telephone number, and the person's 10 year employment history;

o. A statement verifying that any person subject to the requirement of filing a conflict of interest attestation has submitted a report of his/her history of legal actions, as well as a report of his/her affiliation with other health care corporations; and

p. Evidence of accreditation by a nationally recognized private accrediting entity with established and maintained standards for independent review organizations.

(2) The application shall be signed by the chief executive officer and the board chairman who shall attest to its accuracy;

(3) The commissioner shall maintain and periodically update a list of certified independent review organizations;

(4) The commissioner shall periodically review the accreditation for all certified independent review organizations;

(5) Whenever the commissioner determines that an independent review organization no longer satisfies the minimum qualifications established under Ins 2703.07 (b), 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 Ins 2703.07 (a) (5); and

(6) A certification under this section shall be valid for a period of 2 years.

(b) To be certified under Ins 2703.07 (a) to conduct external reviews, an independent review organization shall, in addition to maintaining accreditation by a nationally recognized accrediting entity, meet the following minimum qualifications:

(1) 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;

(2) It shall establish and maintain a quality assurance program that:

a. Ensures that external reviews are conducted within the specified time frames and required notices are provided in a timely manner;

b. 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;

c. Ensures the confidentiality of medical and treatment records;

d. Ensures that any potential conflict of interest is promptly detected and either remedied by the substitution of an alternative clinical peer reviewer or reported to the commissioner for instruction as to how to proceed; and

e. Ensures that any person employed by or under contract with the independent review organization adheres to the requirements of this section;

(3) It shall assign clinical peer reviewers to conduct external reviews who:

a. Are physicians or other appropriate health care providers;

b. Are experts in the treatment of the covered person's medical condition that is the subject of the external review;

c. Are knowledgeable about the recommended health care service or treatment through actual clinical experience;

d. 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;

e. Have no history of disciplinary actions or sanctions, including loss of staff privileges or participation restrictions, that have been taken or are pending by any hospital, governmental agency, or regulatory body that raise a substantial question as to the clinical peer reviewer’s physical, mental or professional competence or moral character; and

f. Have agreed to promptly disclose any potential conflict of interest.

(4) The independent review organization shall be free of any conflict of interest and shall 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; and

(5) 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 shall have a material professional, familial or financial interest in or relationship with or to any of the following:

a. The health carrier that is the subject of the external review;

b. Any officer, director, or management employee of the health carrier that is the subject of the external review;

c. 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;

d. The facility or institution at which the recommended health care service or treatment would be provided;

e. 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

f. The covered person or the covered person's authorized representative.

(c) In determining whether an independent review organization or a clinical peer reviewer of the independent review organization has a material professional, familial or financial conflict of interest for purposes of Ins 2703.07 (b) (5), the commissioner shall consider whether the relationship has the potential to directly or indirectly cause the interests of the IRO or its agents or employees acting on its behalf, to interfere with the independent external reviews of health carrier determinations conducted by the independent review organization.

(d) For the purpose of allowing in-state health care providers to act as clinical peer reviewers in the conduct of external reviews, an affiliation with a hospital, an institution, an academic medical center, or a health carrier provider network shall not be deemed by itself to 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 and the covered person does not object.

(e) 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.

(f) The external review organization’s charges for services provided shall be competitive and reasonable, consistent with Ins 2703.09(a).

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.08 External Review Reporting Requirements.

(a) An independent review organization assigned by the commissioner to conduct external reviews shall submit an annual report to the commissioner including the following information in the aggregate and separately for each health carrier:

(1) The total number of requests for external review assigned by the commissioner to the independent review organization;

(2) The total number of requests for external review assigned by the commissioner to the independent review organization for which a final adjudication was made, and, of those, the number resolved upholding the adverse determination or final adverse determination and the number resolved reversing the adverse determination or final adverse determination;

(3) The average length of time required for the adjudication;

(4) A summary of the types of coverages or cases for which an external review was sought;

(5) The number of external reviews that were terminated prior to completion as the result of a reconsideration and reversal by the health carrier of its adverse determination or final adverse determination after the receipt of new or additional information from the covered person or the covered person’s authorized representative;

(6) The number of external reviews that were terminated prior to completion as the result of a settlement between the health carrier and the covered person on terms other than the original determination of the health carrier or a complete reversal of that determination;

(7) The number of external reviews that were terminated prior to completion for other reasons; and

(8) Verification that the organization maintains written records fully documenting requests for external review received from the commissioner.

(b) The independent review organization shall retain all files, records and data received or created in conjunction with external reviews conducted pursuant to this rule for at least 3 years.

Source. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

Ins 2703.09 General Provisions Regarding External Review.

(a) 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. Costs in excess of $1,500 shall be allowed if the commissioner determines an additional cost is necessary to ensure the fair adjudication of the case in question.

(b) 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.

(c) 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.

(d) An independent review organization and the commissioner shall not disclose protected health information regarding covered persons that is collected in the external appeal process. In addition, the records and internal materials prepared for specific reviews by the commissioner and by an independent review organization under this section shall be exempt from public disclosure under RSA 91-A.

(e) An independent 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.

(f) 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.

(g) 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.

(h) 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. #7539, eff 8-1-01; ss by #8862, eff 5-1-07; ss by #10918, eff 9-1-15

PART Ins 2704 PHARMACY BENEFITS MANAGERS

Statutory Authority: RSA 400-A:15, I; RSA 415:26; RSA 402-N:2; RSA 420-J:7-b, X;

and RSA 420-J:12

Revision Note:

Document #13059, effective 6-29-20, readopted with amendments Part Ins 2704 titled “Prescription Prices for Pharmacists and Pharmacies” and changed the title to “Pharmacy Benefits Managers”. Document #13059 made extensive changes to the wording, format, structure, and numbering of rules in Part Ins 2704.

Document #13059 replaces the prior filing for rules in Part Ins 2704 filed in Document #12171, effective 2-24-17.

Ins 2704.01 Purpose. The purpose of this part is to provide for the regulation and registration of pharmacy benefits managers (PBMs) and to set forth rules which the commissioner deems necessary to carry out the provisions of RSA 402-N.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.02 Definitions.

(a) “Annual report” means a report of the data required to be submitted annually in accordance with RSA 402-N:6.

(b) "Commissioner" means the insurance commissioner.

(c) “Covered benefits” means those health care services and other medical services to which a covered person is entitled under the terms of a health benefit plan, including pharmacy benefits.

(d) “Covered person” means a policyholder, subscriber, enrollee, or other individual participating in a health benefit plan.

(e) “Contracted copayment” means a fixed amount a covered person is responsible to pay for covered prescriptions as set forth in the health benefit plan, or the price for filling the prescription as contracted between the health carrier or its pharmacy benefits manager and the pharmacy, whichever is less.

(f) “Department” means the New Hampshire Insurance Department.

(g) “Health benefit plan” means a plan, policy, or certificate of insurance that constitutes health coverage as defined in RSA 420-G:2, IX.

(h) “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 covered 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.

(i) “New Hampshire pharmacy board” means the board established in RSA 318:2.

(j) “Participating pharmacy” means a pharmacy that, under a contract with the health carrier or its contractor or subcontractor, including any pharmacy benefits manager, has agreed to provide pharmacy services to covered persons with an expectation of receiving payment, other than coinsurance, co-payments, or deductibles, directly or indirectly, from the health carrier.

(k) “Pharmacist” means a person defined in RSA 402-N:1, V.

(l) “Pharmacy benefits manager”' means a “pharmacy benefits manager” as defined in RSA 402-N:1, VIII.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.03 Registration.

(a) No person or entity shall manage the prescription drug coverage provided by a health carrier without registering with the department as a PBM. All PBMs shall complete and submit an application PBM-R “Application for Registration: Initial Application or Renewal Application” (May 2020), available at: https://www.nh.gov/insurance/companies/applications/index.htm.

(b) The registration application shall be completed and signed by an officer or authorized representative of the PBM and filed with the department along with a filing fee of $500.

(c) A PBM shall notify the commissioner in writing of any change in the information required to be filed under these rules, including a change of address or name, no later than 30 days after the change.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.04 Registration Renewal and Annual Reports.

(a) All PBMs shall submit a renewal fee of $100 and complete and submit a renewal application PBM-R “Application for Registration: Initial Application or Renewal Application” (May 2020), available at: https://www.nh.gov/insurance/companies/applications/index.htm, by March 1 each year.

(b) No registration shall be renewed unless the PBM has submitted an annual report as required by RSA 402-N:6, I.

(c) Annual reports shall be submitted in an electronic workbook that includes the following information:

(1) Carrier plan code or name;

(2) Health carrier’s National Association of Insurance Commissioners company code;

(3) Plan code as defined in Ins 4010.07(c);

(4) Total amount spent on drugs prior to rebates; and

(5) Aggregate amount of all rebates collected from pharmaceutical manufacturers that were

attributable to patient utilization in New Hampshire.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.05 Claims Processing.

(a) Every health carrier that provides prescription benefits as a covered benefit under a health benefit plan shall ensure that prescription benefit claims are adjusted and paid in accordance with the requirements of Ins 1001 and RSA 420-J:8-a.

(b) Any health carrier or PBM shall require all participating pharmacies to charge any covered person the lesser of:

(1) The pharmacy’s usual and customary price for filling the prescription; or

(2) The contracted copayment.

(c) The health carrier or PBM shall not be in violation of this section when the conditions set forth in RSA 420-J:8-a, IV exist or the claim has been submitted fraudulently or with inaccurate or misrepresented information.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.06 Complaint Process.

(a) Any pharmacy that fills prescriptions as a covered benefit under a health benefit plan and is adversely affected by the failure of a health carrier or a PBM to comply with RSA 420-J:7-b, X or RSA 415:26 may file a complaint with the commissioner.

(b) Complaints alleging violations of RSA 420-J:b, X or RSA 415:26 and received directly from pharmacies or referred from the New Hampshire pharmacy board to the commissioner shall be investigated by the commissioner in accordance with the provisions of RSA 400-A:16.

(c) The commissioner shall only investigate substantiated complaints that relate to a fully insured plan within the commissioner’s jurisdiction.

(d) A “substantiated complaint” means a complaint that includes all the following information:

(1) The name, address, and license number of the pharmacy filing the complaint;

(2) The name and license number of, and the contact information for, a pharmacist who supports the allegations in the complaint filed;

(3) Information concerning the prescription, including the name of the prescription dispensed and the quantity and dose of the prescription dispensed, with units expressed in terms of volume, number of tablets or capsules, weight, or in other measurement;

(4) The name of the health carrier and the name of the pharmacy benefits manager, if a pharmacy benefits manager is involved in the prescription claim made by the consumer;

(5) A legible copy of the front and back of the consumer’s insurance card for prescription benefits;

(6) The name of the subscriber to the health benefit plan, if that information is not shown on the consumer’s insurance card;

(7) The date the pharmacy dispensed the prescription to the consumer;

(8) The name of the consumer that requested coverage for the prescription at issue in the complaint; and

(9) Written evidence that supports the allegations of violation.

(e) The commissioner shall inform the pharmacy if the filed complaint is unsubstantiated and what missing information is needed.

(f) The commissioner shall hold any complaint that is not substantiated in pending status for 90 days from the date of the notice described in (e) to allow the pharmacy to submit required missing information. If missing information is not provided within 90 days of the date of the notice described in (e), the complaint that is not substantiated shall be closed.

(g) Any consumer may file a complaint with the commissioner. Consumer complaints shall be investigated in accordance with RSA 400-A:15-e.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.07 Enforcement. A PBM shall be subject to the provisions of RSA 402-N:2, III for the following reasons:

(a) Failure to comply with any provisions of this part or of RSA 402-N;

(b) Failure to comply with any lawful order of the commissioner;

(c) Committing an unfair or deceptive act or practice as described in RSA 417;

(d) Filing an application or any necessary forms with the department which contain fraudulent information or omissions;

(e) Misappropriation, conversion, illegal withholding, or refusal to pay over, upon proper demand, any monies that belong to a person otherwise entitled to them and that have been entrusted to the PBM;

(f) Evidence that an owner, principal, officer, partner, manager, director, trustee, or the PBM itself has:

(1) Had an insurance license or an application for an insurance license in any state denied, suspended, or revoked;

(2) Been the subject of a fine, penalty, order, withdrawal, or informal settlement with any state insurance department; or

(3) Pled guilty or no contest to any felony or misdemeanor; or

(g) Failure to meet any qualification for which registration would have been refused had such failure then existed and been known to the Department.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.08 Reporting to the New Hampshire Board of Pharmacy.

(a) The commissioner shall prepare public reports with regard to the complaints received from pharmacies or the New Hampshire board of pharmacy under this part.

(b) The public report shall contain the following information:

(1) A unique numerical identifier for each complaint received;

(2) The name, address, and license number of the pharmacy filing the complaint;

(3) The name and license number of the pharmacist who supports the allegations in the complaint filed;

(4) The name of the health carrier and the name of the PBM, if a PBM is involved in the prescription claim made by the consumer;

(5) The date the complaint was received;

(6) The nature of the complaint received, to include the prescription at issue, the facts concerning the complaint, and the section of rule or law that is alleged to have been violated;

(7) The status of the investigation or an indication that the complaint is in pending status, awaiting information from the pharmacy;

(8) The date of the final resolution of the complaint, if the complaint has been resolved; and

(9) A description of the final resolution of the complaint, to include the legal and factual findings of the commissioner as to the alleged violation.

(c) The report shall be posted electronically on the department’s website at http://www.nh.gov/insurance/ at least quarterly and shall also be transmitted to the New Hampshire board of pharmacy.

(d) The commissioner shall provide to any complaining pharmacy, upon request, a report of the status of complaints filed by that pharmacy, which shall contain the information set forth in (b) above.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.09 Confidentiality. In accordance with RSA 400-A:16, III, RSA 402-N:6, II, and except as otherwise provided in this part, all information collected, obtained, or otherwise in the control or possession of the commissioner from any source relating to any investigation pursuant to this part shall be confidential by law and privileged, shall not be subject to RSA 91-A, shall not be subject to subpoena, and shall not be subject to discovery or admissible as evidence in any private civil action.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.10 Periodic Audit.

(a) The commissioner shall examine a PBM pursuant to RSA 400-A:37 and RSA 402-N:7. The cost of the audit shall be paid by the PBM pursuant to RSA 402-N:7. Audits shall include premium collection, claims processing, and marketing practices.

(b) The PBM shall have continuing access to all books and records in order to fulfill its contractual obligations.

(c) All books and records maintained by the PBM as part of that contractual obligation shall:

(1) Be owned by the health carrier or the PBM;

(2) Conform to the standards of insurance record keeping required of insurers subject to filing an annual audited financial statement pursuant to RSA 400-A:36;

(3) Be retained for 5 years from the date of their creation; and

(4) Be subject to examination by the commissioner or the insurer for which the records are kept.

(d) Upon termination of an agreement between the PBM and the health carrier pursuant to the termination provisions in the agreement, the records may be transferred to a new PBM in lieu of the required 5 year retention. If such a transfer occurs, the new PBM shall acknowledge in writing receipt and responsibility for the transferred records.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.11 Inquiry by Commissioner.

(a) The commissioner shall address any inquiries to the PBM concerning its PBM business. The PBM shall reply in writing within 10 working days to any inquiry made by the commissioner pursuant to RSA 400-A:16, II.

(b) A PBM shall keep all complaints on file for a period of 5 years. Complaint information shall be made available to the department by the PBM upon the commissioner's request.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

Ins 2704.12 Waiver of Rules.

(a) The commissioner, upon the commissioner’s own initiative or upon request by an insurer, shall waive any requirement of this part if such waiver does not contradict the objective or intent of the rule and:

(1) Applying the rule provision would cause confusion or would be misleading to consumers;

(2) The rule provision is in whole or in part inapplicable to the given circumstances;

(3) There are specific circumstances unique to the situation such that strict compliance with the rule would be onerous without promoting the objective or intent of the rule provision; or

(4) Any other similar extenuating circumstances exist such that application of an alternative standard or procedure better promotes the objective or intent of the rule provision.

(b) No requirement prescribed by statute shall be waived unless expressly authorized by law.

(c) Any person or entity seeking a waiver shall make a request in writing.

(d) A request for a waiver shall specify the basis for the waiver and proposed alternative, if any.

(e) Any waiver granted shall expire no later than the end of the registration period. Upon renewal of the registration, the applicant may request another waiver.

Source. (See Revision Note at part heading for Ins 2704) #13059, eff 6-29-20

PART Ins 2705 UNIFORM PRIOR AUTHORIZATION FORMS AND ELECTRONIC STANDARD FOR PRESCRIPTION DRUG BENEFITS

Statutory Authority: RSA 400-A:15, I; RSA 420-E:4-a, III; and RSA 420-J:7-b, IV-c (c)

Ins 2705.01 Purpose. The purpose of these rules is to provide administrative simplification in the prior authorization process for prescription drugs, to encourage the use of electronic prior authorization technology, and to support adoption by health insurers, pharmacy benefits managers, and utilization review entities of nationally recognized standards or processes for electronic prior authorization of prescription drugs.

Source. #12125, eff 3-8-17

Ins 2705.02 Scope.

(a) These rules shall apply to:

(1) All health carriers, health maintenance organizations, health services corporations, and preferred provider programs in the state of New Hampshire in connection with managed care coverage governed by RSA 420-J or when using a utilization review entity subject to RSA 420-E;

(2) Any pharmacy benefits manager with which any of the aforementioned entities contracts to perform prior authorization services for prescription drug benefits; and

(3) All utilization review entities.

(b) These rules shall not apply to the Medicaid managed care program under RSA 126-A:5, XIX.

(c) These rules shall not apply to drugs administered directly by a medical provider in a medical setting.

Source. #12125, eff 3-8-17

Ins 2705.03 Definitions.

(a) “Carrier clinical review criteria” means written criteria that use nationally accepted standards of medical practice consistent with RSA 420-J:6 VI, and that have been adopted and made public by a health insurer, pharmacy benefits manager, or utilization review entity for determining the circumstances in which use of a particular prescription drug is appropriate.

(b) “Electronic prior authorization” (ePA) means prior authorization processes conducted through a health carrier’s web portal or any other secure electronic manner of transmission.

(c) “Health carrier” means “health carrier” as defined in RSA 420-G:2.

(d) “Health insurer” means those health insurance companies subject to this rule pursuant to Ins 2705.02(a)(1).

(e) “Health maintenance organization” means “health maintenance organization” as defined in RSA 420-B:1.

(f) “Health services corporation” means “health services corporation” as defined in RSA 420-A:1.

(g) “Pharmacy benefits manager” means a person who performs pharmacy benefits management services, including a person acting on behalf of a pharmacy benefits manager in a contractual or employment relationship in the performance of pharmacy benefits management services for a covered entity. “Pharmacy benefits management” means the administration of prescription drug benefits provided by a covered entity under the terms and conditions of the contract between the pharmacy benefits manager and the covered entity and the provision of mail order pharmacy services.

(h) “Preferred provider program” means a program in which a health insurer contracts with or designates preferred providers as defined in RSA 420-C:2.

(i) “Prescribing provider” means any person who is lawfully entitled to prescribe, administer, dispense, or distribute prescription drugs to patients.

(j) “Prescription drug” means:

(1) A drug dispensed from a pharmacy directly to the consumer which, under federal law, is required, prior to being dispensed or delivered, to be labeled with any of the following statements:

a. “Caution: federal law prohibits dispensing without prescription”;

b. “Caution: federal law restricts this drug to use by or on the order of the licensed veterinarian”; or

c. “RX only”; or

(2) A drug which is required by any applicable federal or state law or regulation to be dispensed on prescription only and that is dispensed from a pharmacy directly to the consumer.

(k) “Prior authorization” means utilization review conducted prior to a patient’s service or course of treatment.

(l) “Uniform prior authorization forms” means the forms set forth in Ins 2705.04(a) and to be used by health insurers, pharmacy benefits managers, and utilization review entities for prior authorization of prescription drugs pursuant to RSA 420-J:7-b, IV-c (b) and RSA 420-E:4-a, II. “Uniform prior authorization forms” includes both the versions of the forms that are prepopulated pursuant to Ins 2705.04(c) and those that are not prepopulated.

(m) “Utilization review entity” means any person, partnership, or corporation which provides utilization review services subject to RSA 420-E.

Source. #12125, eff 3-8-17

Ins 2705.04 Format of Uniform Prior Authorization Forms.

(a) The appearance of the uniform prior authorization forms shall be as illustrated in Appendix B.

(b) Health insurers, pharmacy benefits managers, and utilization review entities shall reproduce and accept the uniform prior authorization forms without changes except as provided in (c) below.

(c) Health insurers shall ensure that Section A “Destination of Request” of the uniform prior authorization forms is prepopulated before the forms are made available and accessible online pursuant to Ins 2705.05(a).

(d) The uniform prior authorization forms shall be completed as follows:

(1) Section A shall be pre-populated pursuant to paragraph (c) above, with the following information:

a. Insurer or Pharmacy Benefits Manager (PBM) Name – company to which the form shall be submitted;

b. Phone # – phone number for contacting the company regarding prior authorization;

c. Fax # – secure fax number for submitting the request; and

d. Electronic Prior Authorization Webpage – webpage for submitting prior authorization requests electronically, as applicable;

(2) Section B shall be completed by the prescribing provider to indicate the type of request being made by checking the appropriate box(es) to indicate:

a. Whether the request is being made for the first time or is a request for continuation or renewal of an existing prior authorization; and

b. Whether expedited review is being requested and, if so, the treating provider shall initial to make the following attestation:

“By initialing here, I, as the treating provider, attest to the fact that this request meets the URAC (Utilization Review Accreditation Commission) health accreditation standards for urgent care in that adherence to the standard timelines: a) could seriously jeopardize the life or health of the patient or the ability of the patient to regain maximum function; or b) would subject the patient to severe pain that cannot be adequately managed without the treatment being requested”;

(3) Section C shall be completed by the prescribing provider to provide identifying information about the patient for whom the drug is being requested as follows:

a. Patient’s Full Name – first, middle, and last name (or middle initial) of patient

and any suffix;

b. DOB – patient’s month, day, and year of birth;

c. Member ID # - patient’s insurer or PBM member identification number as displayed on the patient’s insurance card; and

d. Group # - patient’s insurer or PBM group number as displayed on the patient’s insurance card;

(4) Section D shall be completed by the prescribing provider to provide identifying and contact information for the prescribing provider as follows:

a. Prescribing Provider – name of the provider prescribing the medication being requested;

b. Phone # – phone number for contacting the prescribing provider regarding the prior authorization request;

c. Address – mailing address for sending prior authorization determinations to the prescribing provider;

d. Secure Fax # – secure fax number for sending prior authorization determinations to the prescribing provider;

e. Specialty – the prescribing provider’s specialty (if multiple, include the specialty relevant to the request);

f. Prescribing Provider NPI # - the prescribing provider’s National Provider Identifier number;

g. Prescribing Provider DEA # - the number assigned to the prescribing provider by the U.S. Drug Enforcement Administration allowing the provider to write prescriptions for controlled substances;

h. Prescriber Point of Contact (POC) Name – a person in the provider’s office (if different than the prescribing provider) that can be contacted regarding the prior authorization request;

i. POC Phone # – phone number for contacting the POC regarding the prior authorization request;

j. POC Secure Fax # – secure fax number for sending prior authorization determinations to the POC;

k. POC Email – email address for contacting the POC regarding the prior authorization request (not required); and

l. Signature / Date – form must be signed and dated by the prescribing provider or an authorized designee;

(5) Section E shall be completed by the prescribing provider to provide information about the patient’s diagnosis and the medication being requested as follows:

a. Primary Diagnosis Related to the Medication Request – patient’s diagnosis related to which the medication is being requested;

b. Medication Requested – medication name;

c. Strength – medication strength being prescribed;

d. Quantity – quantity of the medication being prescribed;

e. Dosing Schedule – frequency of administration of medication being prescribed;

f. Length of Therapy – duration prescribed for medication;

g. Date of Prescription – date medication was prescribed;

h. Current Treatment – indicate if this is an ongoing treatment and, if it is, the date it was started; and

i. Dispense as Written (DAW) Specified – indicate if an alternate version or medication is not to be substituted for the requested medication; if yes, provide rationale for DAW by checking the appropriate box(es) as listed below and providing additional information as required:

“1. Alternate therapies contraindicated or previously tried (please provide more information in Section F);

2. Complex patient with one or more chronic conditions (including, for example, psychiatric condition, diabetes) is stable on current drug(s); high risk of significant adverse clinical outcome with medication change (specify anticipated significant adverse clinical outcome in space below);

3. Medical need for increase in current dosage, strength and / or frequency (specify in space below: (1) dosage, strength(s) and / or frequency(s) tried; (2) medical reason);

4. Absence of appropriate formulation or indication of the drug (specify in space below); and

5. Other (specify in space below)”; and

(6) Section F shall be completed by the prescribing provider to provide information about the patient’s health and treatment if it is relevant to the medication being requested as follows:

a. Drug Allergies - patient’s current drug allergies;

b. Height - patient’s current height;

c. Weight - patient’s current weight;

d. Relevant Lab Values/Test Results – the name, results, and date of any laboratory or other tests that are relevant to the request;

e. Previous Medications and/or Non-Pharmacologic Therapies Tried /Failed – any alternate prescription drug or non-pharmacologic therapies tried by the patient for the same purpose for which the requested medication is being prescribed, to include (as relevant) medication or therapy name; strength; dosing schedule prescribed; date prescribed/started; date stopped; and description of adverse reaction or failure;

f. Contraindications to alternate therapies – the name of any alternate therapy that cannot be used because it may be harmful and description of the contraindication(s); and

h. Additional information – the prescribing provider may provide any additional information to support this request.

Source. #12125, eff 3-8-17

Ins 2705.05 Use of Uniform Prior Authorization Forms and Electronic Standard for Prescription Drug Benefits.

(a) Health insurers shall ensure that the version of the uniform prior authorization form that they have prepopulated pursuant to Ins 2705.04(c) is available and accessible in a centralized location online.

(b) Except as provided in (c) below, health insurers, pharmacy benefits managers, and utilization review entities shall treat the information submitted via uniform prior authorization forms as sufficient information upon which a decision regarding the prior authorization request shall be made as follows:

(1) Health insurers, pharmacy benefits managers, and utilization review entities shall not require prescribing providers to provide information in excess of the information required on the uniform prior authorization forms; and

(2) Health insurers, pharmacy benefits managers, and utilization review entities shall not:

a. Require or allow prescribing providers to submit information on a form other than the uniform prior authorization forms, even if the other form contains the same information as the uniform prior authorization forms; or

b. Require or request that prescribing providers submit any form or information in addition to the uniform prior authorization forms.

(c) Following receipt of uniform prior authorization forms that have been filled out and submitted, health insurers, pharmacy benefits managers, and utilization review entities may request that prescribing providers submit additional information to clarify information specifically requested on the uniform prior authorization forms only to the extent that:

(1) The prescribing provider provided information that conflicts with the records of the health insurer, pharmacy benefits manager, or utilization review entity; or

(2) The prescribing provider did not provide the information requested by the uniform prior authorization forms, including but not limited to clinical information that is needed in accordance with the carrier clinical review criteria and that would typically be supplied in Section F, except that prescribing providers shall not be required to complete Section A “Destination of Request” of the uniform prior authorization forms or ePA.

(d) Failure of a prescribing provider to complete section F or any portion thereof shall not be grounds for denial of prior authorization by a health insurer, pharmacy benefits manager, or utilization review entity, except to the extent the information not provided is required under the carrier clinical review criteria, and the health insurer, pharmacy benefits manager, or utilization review entity has inquired about the information in accordance with (c)(2) above.

Source. #12125, eff 3-8-17

Ins 2705.06 Standards for Electronic Prior Authorization Processes.

(a) The information collected by health insurers, pharmacy benefits managers, and utilization review entities via ePA, telephonically, or through any other manner of transmission shall be the same as the information collected via the uniform prior authorization forms except as specified in (b) below, or in accordance with a waiver granted under Ins 2705.09 below.

(b) Prescription drug prior authorization procedures conducted through ePA, telephonically, or through any other manner of transmission shall not require the prescribing provider to provide more information than is required by the uniform prior authorization forms, except that health insurers, pharmacy benefits managers, and utilization review entities may:

(1) Ask for the same information in a different manner via ePA, including converting questions on the uniform prior authorization forms that require free-form text into one or more questions with multiple choice or drop-down options;

(2) Ask for the following additional information via ePA:

a. Patient address; and

b. Patient gender;

(3) Eliminate Section A “Destination of Request” in ePA; and

(4) Ask for less information via ePA.

(c) Upon review of an ePA request and consistent with Ins 2705.05, a health insurer, pharmacy benefits manager, or utilization review entity may request additional clinical information or clarification necessary to render a decision on the ePA request. Such additional information may only be requested when it is required by the carrier clinical review criteria.

(d) ePA processes shall be completed via secure electronic transactions via secure web portals.

(e) ePA processes shall comply with all applicable state and federal laws, including but not limited to the Health Insurance Portability and Accountability Act of 1996.

Source. #12125, eff 3-8-17

Ins 2705.07 Outreach to Prescribing Providers. Health insurers, pharmacy benefits managers, and utilization review entities shall educate contracted and other prescribing providers about the uniform prior authorization forms, including in partnership with membership organizations that represent those prescribing providers.

Source. #12125, eff 3-8-17

Ins 2705.08 Revisions.

(a) Upon receipt of a rulemaking petition under RSA 541-A:4 asserting that one or more provisions in these rules prevents health insurers, pharmacy benefits managers, and utilization review entities from adopting nationally recognized standards or processes for electronic prior authorization of prescription drugs, including those provided by the National Council for Prescription Drug Programs or an equivalent organization, the commissioner shall consider amending Ins 2705 to eliminate such conflict.

(b) Upon receipt of a rulemaking petition under RSA 541-A:4 outlining the need for and proposed content of one or more additional prior authorization forms for specific types, classifications, or categories of prescription drugs, the commissioner shall consider amending Ins 2705 to create one or more medication-specific versions of the uniform prior authorization forms.

Source. #12125, eff 3-8-17

Ins 2705.09 Waivers to Support Use of National ePA Standards.

(a) Upon written request of a health insurer, pharmacy benefits manager, or utilization review entity, the department shall grant in writing a waiver of the requirements of one or more provisions of Ins 2705.06 upon a showing by the health insurer, pharmacy benefits manager, or utilization review entity, that:

(1) The health insurer, pharmacy benefits manager, or utilization review entity has adopted or plans to adopt the use of a nationally recognized standard for ePA of prescription drugs, including but not limited to standards provided by the National Council for Prescription Drug Programs or an equivalent organization;

(2) One or more provisions in these rules prevent the effective use of the nationally recognized standard;

(3) The modifications permitted under Ins 2705.06(b) do not effectively address the conflict between the rule and the national standard; and

(4) The waiver request outlines with specificity the requested modification to the uniform requirements of this part that will eliminate the conflict.

(b) A health insurer, pharmacy benefits manager, or utilization review entity that has been granted a waiver pursuant to (a) above shall comply with all provisions of Ins 2705 except as expressly described in the department’s written document granting the waiver.

Source. #12125, eff 3-8-17

APPENDIX

Rule	Specific State Statute the Rule Implements
Ins 2701.01	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.02	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.03	RSA 400-A:15, I; RSA 420-J:3; RSA 420-J:7, II
Ins 2701.04	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12; 45 CFR 156.230
Ins 2701.05	RSA 400-A:15, I; RSA 420-J:7, II(b); 45 CFR 156.235
Ins 2701.06	RSA 400-A:15, I; RSA 420-J:7, II(c)
Ins 2701.07	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.08	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.09	RSA 400-A:15, I; RSA 420-J:7, II(a)
Ins 2701.10	RSA 400-A:15, I; RSA 420-J:7, II(b); RSA 420-J:12
Ins 2701.11	RSA 400-A:15, I; RSA 420-J:7 III and IV; RSA 420-J:12
Ins 2701.12	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.13	RSA 400-A:15, I; RSA 420-J:7, II; RSA 420-J:12
Ins 2701.14	RSA 400-A:15, I; RSA 541-A:22, IV
Ins 2702.01	RSA 400-A:15, I; RSA 415:18-a, VIII; 29 USC 1185a (HR 1424-117)
Ins 2702.02	RSA 400-A:15, I; RSA 415:18-a, VIII; 29 USC 1185a (HR 1424-117)
Ins 2702.03	RSA 400-A:15, I; RSA 415:18-a, VIII; 29 USC 1185a (HR 1424-117)
Ins 2702.04	RSA 400-A:15, I; RSA 415:18-a, VIII; 29 USC 1185a (HR 1424-117)
Ins 2702.05	RSA 400-A:15, I; RSA 415:18-a, VIII; RSA 541-A:22, IV
Ins 2703.01	RSA 420-J:3; RSA 420-J:5-a through 5-e
Ins 2703.02	RSA 420-J:1; RSA 420-J:2
Ins 2703.03	RSA 420-J:5-a
Ins 2703.04	RSA 420-J:5
Ins 2703.05	RSA 420-J:5-b
Ins 2703.06	RSA 420-J:5-c
Ins 2703.07	RSA 420-J:5-d
Ins 2703.08	RSA 420-J:5-e
Ins 2703.09	RSA 420-J:5-e
Ins 2704.01	RSA 400-A:15, I; RSA 415:26; RSA 402-N:2; RSA 420-J:7-b, X; RSA 420-J:12
Ins 2704.02	RSA 318:1, XI; RSA 318:2; RSA 400-A:15, I; RSA 402-N:1; RSA 415:26; RSA 420-G:2, IX; RSA 420-J:3, XIX; RSA 420-J:7-b, X; RSA 420-J:12
Ins 2704.03	RSA 400-A:15, I; RSA 402-N:2
Ins 2704.04	RSA 400-A:15, I; RSA 402-N:2; RSA 402-N:6
Ins 2704.05	RSA 400-A:15, I; RSA 402-N:4; RSA 415:26; RSA 420-J:7-b, X; RSA 420-J:8-a, IV; RSA 420-J:12
Ins 2704.06	RSA 400-A:15, I; RSA 400-A:16; RSA 402-N:5RSA 415:26; RSA 420-J:7-b, X; RSA 420-J:12
Ins 2704.07	RSA 400-A:15, I; RSA 400-A:16; RSA 400-A:17-24; RSA 402-N:2; RSA 415:26; RSA 417; RSA 420-J:7-b, X; RSA 420-J:12; RSA 420-J:14
Ins 2704.08	RSA 400-A:15, I; RSA 402-N:5, II; RSA 415:26; RSA 420:J:7-b, X; RSA 420-J:12
Ins 2704.09	RSA 400-A:15, I; RSA 400-A:16, III; RSA 402-N:6, II; RSA 420-J:10-12
Ins 2704.10	RSA 400-A:15, I; RSA 400-A:37; RSA 402-N:2; RSA 402-N:7
Ins 2704.11	RSA 400-A:15, I; RSA 400-A:16, II; RSA 402-N:2
Ins 2704.12	RSA 400-A:15, I; RSA 541-A:22, IV
Ins 2705.01	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c)
Ins 2705.02	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c)
Ins 2705.03	RSA 400-A:15, I; 420-A:1; 420-B:1; 420-C:2; 420-E:4-a, II and III; 420-G:2; 420-J:7-b, IV-c (b) and (c)
Ins 2705.04	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c (c)
Ins 2705.05	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c
Ins 2705.06	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c ; Pub. L. 104-191, Stat. 1936
Ins 2705.07	RSA 400-A:15, I; 420-E:4-a, III; 420-J:7-b, IV-c
Ins 2705.08	RSA 400-A:15, I
Ins 2705.09	RSA 400-A:15, I