§ 44–301.07. External appeals process for matters other than rescissions.

(a) The Director shall establish and maintain an external appeals process whereby a member or member representative who is dissatisfied with a decision rendered in an internal appeals process shall have the opportunity to pursue an external appeal before an independent review organization. The member or member’s representative has a right to pursue an external appeal if:

(1) Dissatisfied with a decision rendered in the internal appeals process;

(2) The health benefit plan or the Director, or Director’s designee, waives the requirement that the internal appeals process shall be completed before pursuing an external appeal;

(3) The health plan does not comply with the deadlines and requirements of the internal appeals process; or

(4) The matter concerns an emergency or urgent medical condition and the member or the member representative has applied for expedited external review at the same time as applying for an expedited internal review.

(b) To initiate an external appeal, a member or member representative shall, within 4 months from receipt of the written decision of the formal internal appeal panel, file a written request with the Director. The member or member representative shall submit a signed form allowing the insurer to release medical records of the member that are pertinent to the appeal.

(c) Upon receipt of the request for an external appeal, together with the executed release form, the Director shall determine whether:

(1) The individual was or is a member of the health benefits plan;

(2) The health care service or benefit which is the subject of the appeal reasonably appears to be a benefit or service covered by the health benefits plan, or is not explicitly listed as an excluded benefit and would be a covered benefit except for the insurer’s determination that the service or treatment is experimental or investigational for a particular medical condition;

(3) The member or member representative has fully complied with § 44-301.06 regarding internal appeals, or exhaustion of the internal appeals process has been waived in accordance with § 44-301.03(g) or § 44-301.06(i); and

(4) The member or member representative has provided all the information required by the independent review organization and the Director to make the preliminary determination, including the appeal form, a copy of any information provided by the insurer regarding its decision to deny, reduce, or terminate a covered service or benefit, and the release form required pursuant to subsection (b) of this section.

(d) Upon completion of the preliminary review, the Director shall notify the member or member representative and insurer in writing as to whether the appeal has been accepted for processing. If the appeal is accepted by the Director, the Director shall assign the appeal to an independent review organization for full review. If the appeal is not accepted by the Director, the Director shall provide a statement of the reasons for the nonacceptance to the member or member representative and the insurer.

(e) The staff of the independent review organization that is assigned to the appeal pursuant to subsection (d) of this section, shall have meaningful prior experience in performing utilization review, peer review, quality of care assessment or assurance, or the hearing of appeals. Any independent review organization, its staff, and its professional and medical reviewers, shall not have any material, professional, familial, or financial affiliation with the insurer that is a party to the appeal.

(f) The member or member’s representative may initiate an external appeal without exhaustion of the internal appeals process described in § 44-301.06 in a case of an emergency or urgent medical condition, when the insurer has failed to comply with the procedures set forth in § 44-301.06, or when further participation in the internal process would require the provision of mental health information that the patient or treating mental health professional considers confidential.

(g) The insurer shall provide timely access to all its records relating to the matter under review and to all provisions of the health benefits plan or health insurance coverage, including any evidence of coverage, “member handbook”, certificate of insurance or contract and health benefits plan relating to the matter.

(h)(1) Upon acceptance of the appeal for processing, the independent review organization shall conduct a full review to determine whether, as a result of the insurer’s decision, the member was deprived of any service covered by the health benefits plan. The independent review organization shall notify the member, or member representative, that:

(A) The member may receive from the insurer, upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the member’s request for benefits; and

(B) The member may submit additional information in writing to be considered in conducting the review.

(2) The member and member’s representative shall be provided at least 10 business days to submit the information pursuant to paragraph (1)(B) of this subsection. To the extent permitted by law, the independent review organization shall forward any information it receives from the member or member’s representative to the health insurer within one business day; except, in a case involving mental health information, disclosure of mental health information shall be limited in accordance with § 7-1202.07. Pursuant to § 7-1202.07(b) the member’s record of mental health information disclosed for the purpose of independent review shall not be disclosed to the insurer.

(i) The full review of an appeal of a health benefits decision shall be initially conducted by 2 physicians licensed to practice medicine in the District of Columbia, Maryland, or Virginia, or in the case of mental health services, 2 health professional peers with an equal or greater degree of training and experience in the particular kind of mental health treatment under review licensed to practice medicine in the District of Columbia, Maryland, or Virginia. On an exceptions basis, when necessary based on the medical, surgical, or mental condition under review, the independent review organization may select medical reviewers licensed anywhere in the United States who have no history of disciplinary action taken or sanctions pending against them by any governmental or professional regulatory body.

(j)(1) In reaching a determination, the independent review organization shall take into consideration all pertinent medical records, the attending health care professional’s opinion, consulting physician or mental health professional reports, and other documents submitted by the parties, without regard to whether the information was submitted or considered in making the initial adverse decision, any applicable generally accepted practice guidelines developed by the federal government, national, or professional medical societies, boards and associations, and any applicable clinical protocols or practice guidelines developed by the insurer, and may consult with such other professionals as appropriate and necessary.

(2) In a case where a denial was based on the insurer’s determination that services or treatments are experimental or investigational, the review organization shall additionally consider medical or scientific evidence or evidence-based standards as to whether the expected benefits of recommended or requested health care service or treatment is more likely to be beneficial to the covered person than any available standard health care service or treatment and the adverse risks of the recommended or requested health care service or treatment would not be substantially increased over those of available standard health care services or treatments.

(j-1) Before issuing a decision in accordance with the time frames provided in subsection (m) of this section, the independent review organization shall provide free of charge to the member, or member’s representative, any new or additional evidence and any new or additional rationale, relied upon or generated by the independent review organization, or at the direction of the health insurer, in connection with the grievance or appeal decision sufficiently in advance of the date the decision is required to be provided to permit the member, or the member’s representative, a reasonable opportunity to respond before that date.

(k) The member or member representative and one insurer representative may request to appear in person before the independent review organization. The independent review organization shall conduct the hearing in the District of Columbia. The independent review organization’s procedures for conducting a review, when the member or member representative or the insurer has requested to appear in person, shall include the following:

(1) The independent review organization shall schedule and hold a hearing as soon as possible after receiving a request from a member or member representative or from an insurer representative to appear before the independent review organization. The independent review organization shall notify the member or member representative and insurer representative, either orally or in writing, of the hearing date and location. The independent review organization shall not unreasonably deny a request for postponement of the hearing made by the member or member representative or insurer representative.

(2) A member or member representative and an insurer representative shall have the right to the following:

(A) To attend the independent review organization hearing;

(B) To present his or her case to the independent review organization;

(C) To submit supporting material both before and during the hearing;

(D) To ask questions of any representative of the independent review organization;

(E) To be assisted or represented by a person of his or her choice; and

(F) To know the names and qualifications of the reviewers, including their training and experience in the specific form of treatment that is being reviewed, and that they are free from conflicts of interest.

(l)(1) The independent review organization shall consult with a physician, mental health professional, advance practice registered nurse, or other health professional who is an expert in the treatment of the medical or mental health condition that is the subject of the appeal. The expert shall:

(A) Be knowledgeable about the recommended treatment or service through recent or current actual experience treating patients with the same or similar medical or mental health condition as the covered person;

(B) Be licensed and hold the appropriate accreditation or certification for the specialty area under review; and

(C) Have no history of disciplinary actions that raise a substantial question about the reviewer’s competence or moral character.

(2) All final recommendations of the independent review organizations shall be approved by the medical director of the independent review organization.

(m) The independent review organization shall complete its review and issue its recommended decision as soon as possible in accordance with the medical exigencies of the case. Except as provided for in this subsection, the independent review organization shall complete its review within 45 calendar days, or 72 hours in the case of an expedited appeal, from the time the Director assigns the appeal to the independent review organization. An insurer shall provide all documentation to the independent review organization within 5 days of receipt of the notice of approval of the appeal by the Director, or within 24 hours of receipt of the notice of approval of the grievance, for an expedited review. If an insurer does not provide the independent review organization all documentation required by this subsection within the time frames, or obtain the necessary extensions, the independent review organization may decide the appeal without receiving the information. The independent review organization shall extend its review for a reasonable period of time as may be necessary due to circumstances beyond its or the insurer’s control, but only when the delay will not result in increased medical risk, including increased mental health risk, to the member. In such an event, the independent review organization shall, prior to the conclusion of the initial review period, provide written notice to the member or member representative and to the insurer setting forth the status of its review and the specific reasons for the delay.

(m-1) Expedited appeals shall be furnished:

(1) For appeals concerning admission, availability of care, continued stay, or health care service for which the member received emergency services but has not been discharged from a facility;

(2) When the member is seeking care for an emergency or urgent medical condition; or

(3) When the insurer’s denial of coverage is based on its determination that treatment is experimental or investigational; which expedited review shall be conducted upon the treating physician’s certification that treatment will be significantly less effective if not promptly initiated.

(n) If the independent review organization determines that the member was deprived of medically necessary covered services or benefits, the independent review organization shall recommend to the Director the appropriate covered health services or benefits the member should receive. The Director shall forward copies of the recommendation to the member or member representative and the insurer.

(o) The independent review organization shall refer a case for review to a consultant physician or other health care provider in the same specialty or area of practice who would generally manage the type of treatment that is the subject of the appeal. All final recommendations of the independent review organization shall be approved by the medical director of the independent review organization.

(p) The decision of the independent review organization shall be binding on the plan or issuer and the member, except to the extent that there are other remedies under District or federal law.

(q)(1) This section shall not apply in cases directly involving Medicaid or the District of Columbia Health Care Alliance benefits.

(2) Any appeal brought pursuant to this section by a member involving coverage provided pursuant to the Medicaid program or the District of Columbia Health Care Alliance program shall be resolved in accordance with federal and District of Columbia laws, regulations, and procedures established for fair hearings and appeals for those programs.