2006 Code of Virginia § 32.1-137.15 - Final adverse decision; appeal

32.1-137.15. Final adverse decision; appeal.

A. Each entity shall establish an appeals process, including a process forexpedited appeals, to consider any final adverse decision that is appealed bya covered person, his representative, or his provider. Except as provided insubsection E, notification of the results of the appeal process shall beprovided to the appellant no later than sixty working days after receivingthe required documentation. The decision shall be in writing and shall statethe criteria used and the clinical reason for the decision. If the appeal isdenied, such notification shall include a clear and understandabledescription of the covered person's right to appeal final adverse decisionsto the Bureau of Insurance in accordance with Chapter 59 ( 38.2-5900 etseq.) of Title 38.2, the procedures for making such an appeal, and thebinding nature and effect of such an appeal, including all forms prescribedby the Bureau of Insurance pursuant to 38.2-5901. Such notification shallalso include the mailing address, telephone number, and electronic mailaddress of the Office of the Managed Care Ombudsman. Further, suchnotification shall advise any such covered person that, except in theinstance of fraud, any such appeal herein may preclude such person's exerciseof any other right or remedy relating to such adverse decision. An expeditedappeals process of no more than twenty-four hours shall be established andconducted by telephone to consider any final adverse decision that relates toa prescription to alleviate cancer pain.

B. Any case under appeal shall be reviewed by a peer of the treating healthcare provider who proposes the care under review or who was primarilyresponsible for the care under review. With the exception of expeditedappeals, a physician advisor who reviews cases under appeal shall be a peerof the treating health care provider, shall be board certified or boardeligible, and shall be specialized in a discipline pertinent to the issueunder review.

A physician advisor or peer of the treating health care provider who rendersa decision on appeal shall (i) not have participated in the adverse decisionor any prior reconsideration thereof; (ii) not be employed by or a directorof the utilization review entity; and (iii) be licensed to practice inVirginia, or under a comparable licensing law of a state of the UnitedStates, as a peer of the treating health care provider.

C. The utilization review entity shall provide an opportunity for theappellant to present additional evidence for consideration on appeal. Beforerendering an adverse appeal decision, the utilization review entity shallreview the pertinent medical records of the covered person's provider and thepertinent records of any facility in which health care is provided to thecovered person which have been furnished to the entity.

D. In the appeals process, due consideration shall be given to theavailability or nonavailability of alternative health care services proposedby the entity. No provision herein shall prevent an entity from consideringany hardship imposed by the alternative health care on the patient and hisimmediate family.

E. When an adverse decision or adverse reconsideration is made and thetreating health care provider believes that the decision warrants animmediate appeal, the treating health care provider shall have theopportunity to appeal the adverse decision or adverse reconsideration bytelephone on an expedited basis. The treating health care provider shall havethe opportunity to appeal immediately, by telephone, on an expedited basis,an adverse decision or adverse reconsideration relating to a prescription toalleviate cancer pain.

The decision on an expedited appeal shall be made by a physician advisor,peer of the treating health care provider, or a panel of other appropriatehealth care providers with at least one physician advisor on the panel.

The utilization review entity shall decide the expedited appeal no later thanone business day after receipt by the entity of all necessary information.

An expedited appeal may be requested only when the regular reconsiderationand appeals process will delay the rendering of health care in a manner thatwould be detrimental to the health of the patient or would subject the cancerpatient to pain. Both providers and utilization review entities shall attemptto share the maximum information by telephone, facsimile machine, orotherwise to resolve the expedited appeal in a satisfactory manner.

An expedited appeal decision may be further appealed through the standardappeal process established by the entity unless all material information anddocumentation were reasonably available to the provider and to the entity atthe time of the expedited appeal, and the physician advisor reviewing thecase under expedited appeal was a peer of the treating health care provider,was board certified or board eligible, and specialized in a disciplinepertinent to the issue under review.

F. The appeals process required by this section does not apply to any adversedecision, reconsideration, or final adverse decision rendered solely on thebasis that a health benefit plan does not provide benefits for the healthcare rendered or requested to be rendered.

G. No entity performing utilization review pursuant to this article orArticle 2.1 ( 32.1-138.6 et seq.) of Chapter 5 of this title, shallterminate the employment or other contractual relationship or otherwisepenalize a health care provider for advocating the interest of his patient orpatients in the appeals process or invoking the appeals process, unless theprovider engages in a pattern of filing appeals that are without merit.

(1998, c. 891; 1999, cc. 643, 649, 857; 2000, c. 922.)