Chapter 3. Grievance Procedures for Health Benefits Plans.

Subchapter I. Grievance and Appeals Procedure.

§ 44–301.01. Definitions.

For the purposes of this chapter, the term

(1) “Adverse benefit determination” means a denial, reduction, limitation, termination, failure to make a payment for a benefit, or a delay of a benefit to a member, regarding determinations about:

(A) The medical necessity, appropriateness, or level of care, or health care setting;

(B) Whether a benefit is experimental or investigational;

(D) A member’s eligibility to participate in a plan;

(E) Whether a wellness incentive has been properly applied; or

(F) Whether the member was given a reasonable alternative standard for satisfying a wellness plan when required.

(1A) “Appeal” means a written request by a member or a member representative for a review of an adverse benefit determination.

(1B) “Director” means the Director of the Department of Health Care Finance.

(2) “Emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in:

(A) Placing the health or mental health of the individual in serious jeopardy;

(B) Serious impairment to bodily functions or mental or emotional functions;

(D) With respect to a pregnant woman, placing the health of the woman or her unborn child in serious jeopardy.

(3) “Grievance” means a written request by a member or a member representative for review of a decision of an insurer to deny, reduce, limit, terminate, or delay a benefit to a member, including regarding:

(A) A determination about the medical necessity, appropriateness, or level of care, health-care setting, or effectiveness of a treatment;

(B) A determination as to whether treatment is experimental;

(D) The failure to provide or make payment that is based on a determination of a member’s eligibility to participate in a plan;

(E) Whether a wellness incentive has been properly applied; and

(F) Whether the member was given a reasonable alternative standard for satisfying a wellness plan when required.

(4) “Grievance decision” means a determination accepting or denying the basis or requested remedy of the grievance.

(5) “Health benefits plan” means a group or individual insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or similar group arrangement provided by an insurer or subcontracting facility of an insurer for the purpose of providing, paying for, or reimbursing expenses for health related services. “Health benefits plan” does not include disability income or accident only insurance.

(6) “Health care services” means items or services provided under the supervision of a physician or other person trained or licensed to render health care necessary for the prevention, care, diagnosis, or treatment of human disease, pain, injury, deformity or other physical or mental condition including the following: pre-admission, outpatient, inpatient, and post-discharge care; home care; physician’s care; nursing care; medical care provided by interns or residents in training; other paramedical care; ambulance service and care; bed and board; drugs; supplies; appliances; equipment; laboratory services; any form of diagnostic imaging or therapeutic radiological services; and services mandated under Chapter 31 of Title 31.

(7) “Independent review organization” means an impartial, certified health entity engaged by the Director to review any adverse grievance decision by an insurer, including an insurer’s decision to deny, terminate, or limit covered health care services.

(8) “Insurer” means any individual, partnership, corporation, association, fraternal benefit association, hospital and medical services corporation, health maintenance organization, or other business entity that issues, amends, or renews group or individual health insurance policies or contracts, including health maintenance organization membership contracts in the District.

(9) “Member” means an individual who is enrolled in a health benefits plan.

(10) “Member representative” means a:

(A) Person acting on behalf of a member with the member’s consent;

(B) Person authorized by law to provide substituted consent for a covered person;

(D) Covered person’s treating health care professional when the covered person is unable to provide consent; or

(E) In the case of a request regarding an emergency or urgent medical condition, a health-care professional with knowledge of the covered person’s medical condition.

(10A) “Rescission” means a cancellation or discontinuance of coverage that has a retroactive effect (which is prohibited except in cases of fraud or intentional misrepresentation of material fact).

(11) “Urgent medical condition” means a condition with respect to which the application of time periods for making non-urgent claims decisions could seriously jeopardize the life or health of the claimant or the ability of the claimant to regain his or her maximum possible function, or, in the opinion of a physician with knowledge of the covered person’s medical condition, would subject the covered person to severe pain that could not be adequately managed without the health care services being requested.

(Apr. 27, 1999, D.C. Law 12-274, § 101, 46 DCR 1294; Aug. 16, 2008, D.C. Law 17-219, § 5025, 55 DCR 7598; Mar. 19, 2013, D.C. Law 19-229, § 2, 59 DCR 13592.)

Prior Codifications

1981 Ed., § 32-571.1.

Effect of Amendments

D.C. Law 17-219, in par. (1), substituted “Department of Health Care Finance” for “District of Columbia Department of Health”.

The 2013 amendment by D.C. Law 19-229 redesignated former (1) as (1B); added (1) and (1A); rewrote (2), (3), (10), and (11); and added (10A).

Emergency Legislation

For temporary (90 day) amendment of section, see § 2(a) of Health Benefits Plan Grievance Emergency Amendment Act of 2011 (D.C. Act 19-166, October 11, 2011, 58 DCR 8898).

For temporary (90 day) amendment of section, see § 2(a) of the Health Benefits Plan Grievance Emergency Amendment Act of 2012 (D.C. Act 19-409, July 24, 2012, 59 DCR 9135).

For temporary addition of (10A), see § 2(a) of (D.C. Act 19-502, October 26, 2012, 59 DCR 12757), applicable as of October 22, 2012.

Temporary Legislation

Section 2(a) of D.C. Law 19-63 added par. (10A) to read as follows:

“(10A) ‘Month’ means the period that runs from a given day in one month through the date preceding the numerically corresponding day in the next month.”.

Section 4(b) of D.C. Law 19-63 provided that the act shall expire after 225 days of its having taken effect.

Section 2(a) of D.C. Law 19-200 added a new paragraph (10A) to read as follows:

“For the purposes of this chapter, the term

*****

“(10A) ‘Month’ means the period that runs from a given day in one month through the date preceding the numerically corresponding day in the next month.”

Section 4(b) of D.C. Law 19-200 provided that the act shall expire after 225 days of its having taken effect.

Short Title

Short title: Section 5024 of D.C. Law 17-219 provided that subtitle J of title V of the act may be cited as the “Health Benefits Plan Members Bill of Rights Amendment Act of 2008”.

§ 44–301.02. Medicare not applicable.

(a) The provisions of subchapter I of this chapter shall not apply in cases directly involving coverage determinations or benefit requirements under the federal Medicare program. The provisions of subchapters II and III of this chapter shall not apply in cases directly involving federal Medicare benefits.

(b) Any complaint by a member involving coverage or benefits provided pursuant to the federal Medicare program shall be resolved in accordance with federal laws, regulations, and procedures established for fair hearings and appeals for the Medicare programs and with any appropriate District law.

§ 44–301.03. Establishment of grievance system.

(a)(1) A member or member representative shall have a right to file an appeal with an insurer for a review of an adverse benefit determination. An insurer’s health benefits plan shall include an appeal system that provides for the presentation and resolution of appeals brought by members or member representatives.

(2) Health insurers shall notify members when claims are denied, setting forth the reasons for the denial and procedures for appealing the determination through internal and external review. The notice shall be written in a manner calculated to be understood by the participant, in accordance with federal rules for group health plans promulgated by the U.S. Department of Labor, federal rules for individual health plans promulgated by the U.S. Department of Health and Human Services, and any rules promulgated by the Director pursuant to this chapter.

(3) All notices regarding adverse benefit determinations shall meet the requirements of the Patient Protection and Affordable Care Act of 2010, approved March 23, 2010 (Pub. L. No. 111-148; 124 Stat. 119), regarding cultural and linguistic appropriateness, and, if the insurer is a subcontractor or grantee of a covered entity, as that term is defined in the Language Access Act of 2003, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code § 2-1931 et seq.)(“Language Access Act”), shall also meet the language access standards under the Language Access Act. At a minimum, insurers shall include information in languages identified by the Director about how to obtain free oral interpretation and translation of notices and vital documents.

(b) An appeal system established pursuant to this section shall, at a minimum, incorporate the following components:

(1) The right of a member to file an appeal regarding any aspect of the insurer’s health care services;

(2) The right of a member to file an appeal regarding an insurer’s decision to rescind coverage;

(3) A procedure for filing an appeal from an adverse benefit determination;

(4) A standardized method of recording, documenting, and reporting the status of all adverse benefit determinations and appeals, which includes the requirements that a health insurer maintain for 6 years records of all claims, and notices associated with the claims, grievances, appeals, and the review process, and limit access to patient-identifying information in those records in accordance with the Health Insurance Portability and Accountability Act of 1996, approved August 21, 1996 (Pub. L. No. 104-191; 110 Stat. 1936), and any other applicable patient confidentiality rules;

(5) Availability of a member services representative to assist members with grievances and appeals upon request;

(6) The right of a member to designate an outside independent representative to assist the member or member representative in following the grievance procedures upon request;

(7) A specified time for responding to appeals not to exceed the time frames set forth in § 44-301.06(f), from receipt of the grievance by the insurer;

(8) An oral and written procedure describing how grievances and appeals are processed and resolved;

(9) Procedures for insurers to follow concerning the methods to be used to inform the member of the resolution; and

(10) In the case of appeals regarding emergency or urgent medical conditions, procedures that will allow a member or member representative to immediately request an expedited review in accordance with §§ 44-301.06 and 44-301.07.

(c) At the time a member first enrolls with an insurer, the insurer shall provide each member with written notice of the components required in subsection (b)(1) through (3) of this section, as well as:

(1) The telephone numbers and business addresses of the insurer’s representatives responsible for grievance resolution;

(2) The telephone number, business address, and description of the Health Care Ombudsman’s services;

(3) A statement that describes the member’s or member representative’s right to contact the Director, or the Director’s designee, to seek external review if dissatisfied with the resolution reached through the insurer’s grievance system; and

(4) A statement that describes a Medicaid or D.C. Health Care Alliance enrollee’s right to appeal to the Office of Administrative Hearings at any time, if applicable.

(d) In the case of a reduction or a termination of services that is contrary to the recommendations of the treating physician, mental health professional, or advance practice registered nurse, an insurer shall provide a member or member representative with 24 hours prior verbal notification, followed by a written decision as soon as practical.

(e) An insurer shall include in the “evidence of coverage” and “member handbook” issued to members a description of the procedures for filing grievances and appeals.

(f) An insurer shall not take retaliatory action of any sort against a member who files a grievance pursuant to this section or an appeal pursuant to §§ 44-301.06 and 44-301.07.

(g) The Director or the Director’s designee shall waive exhaustion of the appeal process required by § 44-301.06 as a prerequisite for proceeding to the external appeal process:

(1) In cases of emergency or urgent medical conditions;

(2) If the insurer has not complied with the requirements of the internal review process; or

(3) If further participation in the internal appeal process would require the provision of mental health information that the patient or treating mental health professional considered confidential.

§ 44–301.04. Grievance process.

(a) A member or member representative may appeal any adverse benefit determination decision resulting in a rescission, denial, termination, or other limitation of a benefit in accordance with the provisions of this chapter.

(b) At the time an insurer denies, reduces, terminates, or limits a benefit, an insurer shall provide to the affected member or member representative a written description of the procedures for filing appeals, including procedures to request expedited internal or external review if the matter concerns an emergency or urgent medical condition. The notice shall adhere to requirements of Title XXVII of the Public Health Service Act, approved July 1, 1944 (42 U.S.C. § 300gg et seq.), and the Employee Retirement Income Security Act of 1974, approved September 2, 1974 (Pub. L. No. 93-406; 88 Stat. 829), and shall include information sufficient to identify the claim, the reason for the denial, any standards relied on to deny the claim, contact information for the Health Care Ombudsman, and notice of the right of the claimant to receive free of charge all documents relevant to the claim.

(1) Review by the insurer; and

(2) External review by an independent review organization.

(d) Nothing in the health benefits plan shall prohibit a member or member representative from discussing or exercising the right to appeal pursuant to this section.

(e)(1) The insurer shall notify a member seeking a resolution of an adverse benefit determination about the:

(A) Availability of the Health Care Ombudsman;

(B) Right to review; and

(2) For grievances and appeals concerning urgent or emergency medical conditions, the member has the right to continued coverage at the level of benefits provided before the reduction, termination, or limitation, pending the outcome of the appeal.

(f)(1) Any request that a physician, with knowledge of the covered person’s medical condition, determines involves an emergency or urgent medical condition shall be treated as an urgent care request.

(2) An individual acting on behalf of the health insurer shall apply the judgment of a prudent layperson who possesses an average knowledge of health and medicine to determine if other requests involve an emergency or urgent medical condition.

(3) For the purposes of expedited external review, the Director, or the Director’s designee, shall apply the judgment of a prudent layperson that possesses an average knowledge of health and medicine to determine if other requests involve an emergency or urgent medical condition.

§ 44–301.05. Informal internal review. [Repealed]

Repealed.

§ 44–301.06. Internal appeals process.

(a)(1) An insurer shall establish and maintain an internal appeals process whereby a member or member representative who has received an adverse benefit determination can have the opportunity to pursue an appeal before a reviewer or panel of physicians, a mental health professional, advanced practice registered nurses, or other health care professionals selected by the insurer.

(2) Group health plans and individual health insurers shall follow claims procedures established pursuant to the Employee Retirement Income Security Act of 1974, approved September 2, 1974 (Pub. L. No. 93-406; 88 Stat. 829), Title XXVII of the Public Health Service Act, approved July 1, 1944 (42 U.S.C. § 300gg et seq.), and the Patient Protection and Affordable Care Act, approved March 23, 2010 (124 Stat. 119; 42 U.S.C. § 18001, note), as amended by the Health Care and Education Reconciliation Act of 2010, approved March 30, 2010 (124 Stat. 1029; 42 U.S.C. § 1305, note), if applicable. At a minimum, the member or member’s representative shall be allowed to request an internal review within 180 days of receipt of a notice of an adverse benefit determination.

(b) Reviews shall be in accordance with the following:

(1) The reviewer or panel selected by the insurer pursuant to subsection (a) of this section shall not have been involved in the adverse benefit determination decision under review.

(2) For all reviews requiring medical expertise or mental health expertise, the review panel shall include at least one medical reviewer who is trained or certified in the same specialty as the matter at issue.

(3) A medical reviewer shall be a physician, a mental health professional, an advanced practice registered nurse, or other appropriate health care provider possessing a non-restricted license to practice or provide care anywhere in the United States and the District of Columbia and have no history of disciplinary action or sanctions taken or pending against him or her by any governmental or professional regulatory body.

(4) A medical reviewer shall be certified by a recognized specialty board in the areas appropriate to the review.

(5) The health insurer shall ensure the independence and impartiality of the individuals making review decisions. The health insurer shall not make decisions related to such individuals regarding hiring, compensation, termination, promotion, or other similar matters based upon the likelihood that the individual will support the denial of benefits.

(6)(A) For claims involving mental health care, the confidentiality of mental health information shall be preserved pursuant to Chapter 12 of Title 7 [§ 7-1201.01 et seq.]. Pursuant to a valid authorization, the provider may share limited information as described in § 7-1203.03 to determine payment.

(B) The patient may authorize (or for participating providers, the provider and insurer may jointly authorize) review of the patient’s record of mental health information by an independent mental health professional. Mental health information disclosed to an independent mental health professional under these procedures shall not be disclosed to the health insurer.

(c) All internal appeals shall be acknowledged by the insurer, in writing, to the member or member representative filing the appeal within 10 business days of receipt.

(d) The member and the member’s representative shall have the right to:

(1) Review the member’s file;

(2) Request and receive free of charge copies of all documents and records relevant to the claim;

(3) Present evidence and testimony as part of the appeals process;

(4) Review any new or additional evidence considered or generated by the health insurer;

(5) Review any new or additional rationale used by the insurer in connection with the claim; and

(6) Sufficient opportunity to respond.

(e) The member has the right to continued coverage, upon request, at the level of benefits provided before the reduction, termination, or limitation, pending the outcome of the appeal.

(f) An internal appeal shall be conducted as soon as possible after receipt by the insurer of all necessary documentation in accordance with the medical exigencies of the case. If the internal appeal is from a decision regarding urgent or emergency medical conditions, the insurer shall conclude the appeal within 24 hours of the notification of appeal by the member or member representative. The health insurer shall conclude all other appeals conducted pursuant to this section within 30 calendar days for prospective reviews and 60 calendar days for retrospective reviews.

(g) If an insurer denies a member’s or member representative’s internal appeal, the insurer shall provide the member or member representative with a written explanation of the denial and written notification of his or her right to receive copies of all documents relevant to the claim and to proceed to an external appeal. The notification shall include specific instructions as to how the member or member representative may arrange for an external appeal and any forms required to initiate an external appeal.

(h) At a minimum, the written explanation provided by the insurer of the determination pursuant to subsection (g) of this section shall include:

(1) The reviewer’s understanding of the member’s or member representative’s complaint;

(2) Information sufficient to identify the claim involved, including, if applicable:

(A) The date of service;

(B) The health care provider;

(D) A statement describing the availability, upon request, of the diagnosis code and its corresponding meaning and the treatment code and its corresponding meaning;

(3) The reviewer’s decision in clear terms;

(4) The title and qualifying credentials of the person or persons participating in the review, including how those credentials apply to the specific form of treatment being reviewed;

(5) The contractual basis, including reference to specific plan provisions, or medical rationale in enough detail for the member or member representative to understand and to respond to the insurer’s position;

(6) A reference to the evidence or documentation used as the basis for the decision, including internal rules, guidelines, and protocols; and

(7) All applicable instructions, including the telephone numbers and titles of persons to contact and the time frames in which to appeal the decision to the next stage of appeal.

(i) If the insurer fails to comply with any of the deadlines or procedures for completion of an internal appeal or if that further participation in the internal process would require the provision of mental health information that the patient or treating mental health professional considered confidential, the member or member representative shall be relieved of his or her obligation to complete the internal review process and may, at his or her option, proceed directly to the external appeals process required by § 44-301.07.

§ 44–301.06a. Appeals of rescissions to the Department of Insurance, Securities, and Banking.

If an insurer denies a member or member representative’s appeal of a rescission, the insurer shall provide the member or member representative and the Department of Insurance, Securities, and Banking with a written explanation of why the insurer found that there was fraud or misrepresentation of a material fact. The notice shall explain the member’s right to appeal to the Department of Insurance, Securities, and Banking.

§ 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;

(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.

(Apr. 27, 1999, D.C. Law 12-274, § 107, 46 DCR 1294; Mar. 19, 2013, D.C. Law 19-229, § 2(g), 59 DCR 13592.)

Prior Codifications

1981 Ed., § 32-571.7.

Section References

This section is referenced in § 44-301.03, § 44-301.06, and § 44-301.11.

Effect of Amendments

The 2013 amendment by D.C. Law 19-229 rewrote the section.

Emergency Legislation

For temporary amendment of (b) and (p), see § 2(b) of (D.C. Act 19-502, October 26, 2012, 59 DCR 12757), applicable as of October 22, 2012.

For temporary (90 day) amendment of section, see § 2(b) of Health Benefits Plan Grievance Emergency Amendment Act of 2011 (D.C. Act 19-166, October 11, 2011, 58 DCR 8898).

For temporary (90 day) amendment of section, see § 2(b) of the Health Benefits Plan Grievance Emergency Amendment Act of 2012 (D.C. Act 19-409, July 24, 2012, 59 DCR 9135).

Temporary Legislation

Section 2(b) of D.C. Law 19-63, in subsec. (b), substituted “4 months” for “30 business days”; and rewrote subsec. (p) to read as follows:

“(p) The decision of the independent review organization shall be binding on all parties and enforceable by the Director, except to the extent that there are other remedies under District of Columbia or federal law.”.

Section 4(b) of D.C. Law 19-63 provided that the act shall expire after 225 days of its having taken effect.

Section 2(b) of D.C. Law 19-200 amended subsections (b) and (p) to read as follows:

“(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.

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Section 4(b) of D.C. Law 19-200 provided that the act shall expire after 225 days of its having taken effect.

§ 44–301.08. Certification and general requirements for independent review organizations.

(a) Each independent review organization selected by the Director to review external appeals must be certified every 2 years by the Director.

(b) The Director shall be responsible for developing, applying, and enforcing certification standards for independent review organizations. These standards shall ensure that an independent review organization:

(1) Properly maintains a policy involving the review of the appeal in strict confidence pursuant to rules established by the Director and performs reviews at a level of confidentiality equal to or stricter than the standards of confidentiality that are required of the treating health professionals for the treatment being reviewed;

(2) Uses only qualified professional and medical reviewers in any review who do not have conflicts of interest with the patient, the treating health care professional, or the health insurer;

(3) Demonstrates an ability to render decisions in an equitable and timely manner and consistent with this chapter; and

(4) Is accredited by a nationally recognized private accrediting organization.

(c) An independent review organization may not be a subsidiary of, or in any way owned or controlled by a health benefits plan, insurer, or trade association of health care providers.

(d) The Director shall develop an application form for certifying an independent review organization that contains a description of the organization, including names, biographical sketches of all directors, officers, and executives of the organization.

(e) The independent review organization shall submit to the Director the following information, for purposes of creating a file of public records, upon initial application for certification, and thereafter upon any change to any of this information:

(1) The names of all stockholders and owners of more than 5% of any stock or options, if it is a publicly held organization;

(2) The names of all holders of bonds or notes in excess of $100,000 if any;

(3) The names of all corporations and organizations that the independent review organization controls or is affiliated with and the nature and extent of any ownership or control, including the affiliated organization’s type of business; and

(4) The names of all directors, officers, and executives of the independent organization, as well as a statement regarding any relationships the directors, officers, and executives may have with any health care plan, disability insurer, managed care organization, health or mental health professional group or board or committee.

(f)(1) The independent review organization shall not have any material professional, familial, or financial conflict of interest with any of the following:

(A) The insurer;

(B) Any officer, director, or management employee of the insurer;

(C) The physician, the physician’s medical group, or the independent practice association or the treating provider proposing the service or treatment;

(D) The facility or institution at which the service or treatment would be provided;

(E) The development or manufacture of the principal drug, device, procedure, or other therapy proposed for the member whose treatment is under review;

(F) The claimant and any related parties to the claimant whose treatment is the subject of the external review; and

(G) The plan administration, plan fiduciaries, or plan employees.

(2) Repealed.

(g) The independent review organization shall have a quality assurance mechanism in place that ensures the timeliness and quality of the reviews, the qualifications and independence of the experts, and the confidentiality of medical records and review materials.

(h) Neither an independent review organization nor an individual working for an external review panel pursuant to this chapter shall be held liable for any recommendation presented by the independent review organization, except in cases of gross negligence, recklessness, or intentional misconduct.

(i) An insurer, bound by the decision of the independent review entity, shall not be liable for following such decision. A determination by the independent review entity in favor of the insurer shall create a rebuttal presumption in any subsequent action at law that the insurer’s coverage determination was appropriate.

(j) The Director shall, from time to time, enter into contracts with as many independent review organizations as the Director deems necessary to conduct the external appeals. The contracts shall set forth all terms which the Director deems necessary to ensure a member’s right of appeal, including an assessment of separate costs to the insurer for the independent review organization review.

(k) As part of the contract process set forth in subsection (j) of this section, all independent review organizations shall submit to the Director and shall maintain a current list identifying all insurers, health care facilities, and other health care providers with whom the independent review organization maintains any health related business arrangements. The list shall include a brief description of the nature of any such arrangement.

(l) Upon receipt of any request for an external appeal, the Director shall assign that appeal to one of the approved independent review organizations on a random basis. The Director may reserve the right to deny any assignment to any independent review organization if the Director determines that making an assignment would result in a conflict of interest or would otherwise create an appearance of impropriety.

(m) The terms and conditions of a contract entered into pursuant to subsection (j) of this section shall provide that the reasonable direct costs of the external review process, not including costs of representation of a member, shall be paid by the insurer.

(n)(1) An independent review organization assigned pursuant to this chapter to conduct an external review shall maintain written records on all requests for which it conducted an external review during a calendar year.

(2) Each independent review organization shall submit to the Director, upon request, a report on all requests for external reviews.

(3) The report shall include, at minimum:

(A) The total number of requests for external review;

(B) The number of requests for external review resolved and, of those resolved, the number resolved upholding the adverse determination or final adverse determination and the number resolved reversing the adverse determination or final adverse determination;

(D) A summary of the types of coverages or cases for which an external review was sought, provided in the format required by the Director; and

(E) The number of external reviews that were terminated as the result of a reconsideration by the health carrier of its adverse determination or final adverse determination after the receipt of additional information from the covered person or the covered person’s authorized representative.

(4) The independent review organization shall retain the written records required pursuant to this subsection for at least 3 years.

§ 44–301.09. Assessment of insurers.

The Mayor shall assess all insurers to cover all the costs of administering this chapter. The Mayor shall promulgate regulations to determine the assessment formula.

§ 44–301.10. Reporting requirements.

(a) Every insurer shall submit to the Director, an annual grievance report, that chronicles all grievance activity during the preceding year. The Director shall develop a system for classifying and categorizing grievances and appeals that all insurers and independent review organizations will use when collecting, recording, and reporting grievance and appeals information. The Director shall also develop a reporting form for inclusion in the annual grievance report that shall include the following information:

(1) The name and location of the reporting insurer;

(2) The reporting period in question;

(3) The names of the individuals responsible for the operation of the insurer’s grievance system;

(4) The total number of grievances received by the insurer, categorized by cause, insurance status, and disposition;

(5) The total number of requests for expedited review, categorized by cause, length of time for resolution, and disposition; and

(6) The total number of requests for external review, categorized by cause, length of time for resolution, and disposition.

(b) The Director shall provide current and aggregate information about each health benefits plan’s grievance and appeals activity to the public.

(d) The Director shall submit an annual report to the Council and the public concerning the status of the grievance and appeal procedures of all health benefits plans in the District, including external appeals. The report shall summarize grievances by category and by health benefits plan and shall include the number of decisions upholding and reversing each grievance and the length of time for complete resolution of the grievance. The Director shall, based upon individual cases and the patterns of grievance and appeals activity, include in the annual report recommendations concerning additional health consumer protections.

§ 44–301.11. Availability of District external review procedures for self-insured plans.

A group health plan that is located in the District but that is not subject to District regulation may voluntarily use the District’s external review system; provided, that it pays the full costs of external review and adheres to the procedures set forth in § 44-301.07.

Subchapter II. Access to Specialists as Primary Care Providers.

§ 44–302.01. Specialists as primary care providers.

(a) A health benefits plan shall permit a member with chronic disabling or life threatening conditions to choose a health care specialist as the member’s primary care provider. The specialist must be a participant in the health benefits plan and be available to attend to the member.

(b) A specialist chosen by a member pursuant to subsection (a) of this section, shall be permitted to treat the member without the member first receiving a referral from another health care provider. The specialist may authorize referrals, procedures, tests, and medical services subject to the terms of a treatment plan developed by the specialist and approved by the insurer.

(c) A health benefits plan shall permit a member with a chronic disabling or life threatening condition to have direct access to a specialist qualified to treat the condition, subject to initial referral by the member’s primary care provider and a treatment plan approved by the member’s primary care provider. Such treatment plan shall ensure that the member will receive covered medically necessary procedures, tests, and medical services.

§ 44–302.02. Standing referrals to specialists.

(a) In general, subject to subsection (b) of this section, a health benefits plan shall permit a member to receive medically necessary or appropriate specialty care for more than one visit without having to obtain the insurer’s approval for subsequent visits authorized by a primary care provider.

(b) Subsection (a) of this section shall not apply to specialty care if the insurer informs the member, orally and in writing, of any limitation on the choice of participating providers with respect to such care.

§ 44–302.03. Direct access to qualified specialists for females’ health services.

(a) Every health benefits plan that requires or provides a member with the opportunity to designate a participating primary care provider, shall permit a member who is female to designate as her primary care provider a participating physician or advance practice registered nurse who specializes in obstetric and gynecology.

(b) If a member who is female does not designate a participating physician or advance practice registered nurse as described in subsection (a) of this section as her primary care provider, the health benefits plan may not require authorization or referral by the member’s primary care provider, or otherwise, in order for the member to receive routine obstetrical or gynecological services from a participating obstetrician or gynecologist or advance practice registered nurse described in subsection (a) of this section.

(c) For the purposes of this section “routine obstetrical and gynecological services” means the full scope of medically necessary services provided by the obstetrician or gynecologist or advance practice registered nurse described in subsection (a) of this section in the care of, or related to, the female reproductive system and breasts and in performing annual screening and immunizations for disorders and diseases in accordance with nationally recognized medical practice.

(d) Nothing in this section shall prohibit an insurer or Health Maintenance Organization from requiring a participating obstetrician or gynecologist or advance practice registered nurse as described in subsection (a) of this section to provide written notification to the covered female’s primary care physician of any visit to such obstetrician or gynecologist or advance practice registered nurse. The notification may include a description of the health care services rendered at the time of the visit.

Subchapter III. Notification of Health Care Provider Termination; Continuance of Coverage.

§ 44–303.01. When a health care provider leaves a plan.

If a contract between an insurer and a health care provider is terminated by either party for any reason other than termination for failure to meet applicable quality standards of care or fraud, and a member is undergoing a course of treatment from the physician at the time of the termination, the insurer shall notify the member on a timely basis of the termination. When medically necessary, persons with serious illness undergoing a course of treatment or who are in the second trimester of a pregnancy shall be permitted to continue to receive medically necessary covered services, with respect to the cause of treatment, by the physician, certified nurse-midwife, or certified midwife during a transitional period of at least 90 days from the date of the notice under the same terms and conditions as specified under the provider contract.

Subchapter IV. Regulations and Standards.

§ 44–304.01. Regulations and standards; compliance.

(a) Within 120 days of April 27, 1999, the Director shall promulgate any regulations and standards as may be necessary to carry out the purposes of this chapter.

(b) Health benefits plans and insurers subject to this chapter shall comply with the regulations promulgated pursuant to subsection (a) of this section for contracts issued or renewed on or after 120 days from the promulgation of final regulations pursuant to subsection (a) of this section.