AMTA-WA Comments for Department of Health

The following is from our Lobbyists. They wrote this summary of the Pre-Authorization rules that are being filed by the Office of Insurance Commissioner. This does not replace the current document and you should always refer WAC.

On June 5, 2017, the Office of the Insurance Commission(OIC) filed the final rules on prior authorization, culminating an almost year long process. These rules represent a major step forward for providers and facilities.

The following is a link to the prior authorization web page at the OIC. The final rules are noted by the wording: “CR 103.”

The rule-making process is like the legislative process in many ways. Different groups come together with different perspectives, and try to find some common ground. Concerning these rules, the OIC was very clear, given the ongoing complaints of providers, facilities, and consumers, that there needed to be some ground rules for prior authorizations. But, in developing those ground rules, the OIC, while favoring the interests of health care consumers, had to balance the interests of providers and facilities to those of carriers. As a result, the language below is a compromise. It is not everything providers and facilities wanted.

Effective dates: There are three effective dates that apply to these rules:

  1. WAC 284-43-0160, definitions, is effective July 6, 2017. The definition section amends existing rules by adding definitions for “expedited prior authorization request,” “predetermination request,” “preservice requirement,” “prior authorization,” and “standard prior authorization request.”
  2. WAC 284-43-2050 (4) and (5), prior authorization processes, require a health carrier to establish an online prior authorization process by November 1, 2019.
  3. All other rules, or portions thereof, are effective January 1, 2018

The following is a brief summary of key provisions in the rules, section by section. Two caveats. The summary is not intended to be a substitute for reading the rule language. This is a very detailed summary—because the rules themselves are so detailed. There are no short cuts here. In addition, the summary is not intended to be legal advice.

WAC 284-43-0160, Definitions. As noted above, definitions were added for a variety of terms that are used throughout these rules. Because changes are being made to an existing WAC section, new definitions are all underlined.

WAC 284-43-2000, Health care services utilization review—Generally. This WAC is existing law. Numerous changes were made to sync it with the newer prior authorization language created by these rules in order to remove potential conflicts. Some provisions still remain such as those related to “concurrent care review request” and “postservice review request.” This is another example of where changes are made to an existing WAC section. Therefore, new language is underlined, while deleted language is shown as deleted.

WAC 284-43-2050, Prior authorization processes. This is one of two sections that is the heart of these rules. It’s a New Section, and therefore all language is considered new. As a result, there are no underlines or deletions.

A couple of caveats. For the sake of readability of the information below, while the rules cover both providers and facilities, only the word “provider” is being used. And the word “carrier” also includes “its designated or contracted representative.” Bottom line, the OIC has made it crystal clear that carriers are responsible for the work of their subcontractors.

  • Subsection (1) sets out what health benefit plans must follow these rules as of January 1, 2018. It applies to only those plans that the OIC regulates, and that does not include ERISA plans. It also does not include worker compensation. If you’d like to read the definition of “health benefit plans,” (also defined as “health plans”) to learn about all the exclusions here is a link: Finally, it also does not apply to prescription drug services, unless specifically mentioned.
  • Subsection (2) requires that carriers must maintain a prior authorization program description and use evidence-based clinical review criteria.
    • Prior authorization determinations must be based on that criteria and the medical necessity definition stated in the enrollee’s plan.
    • Prior authorization programs must have a method for reviewing and updating the criteria.
    • Carriers are responsible for compliance whether they use a third-party vendor or a subcontracting arrangement.
  • Subsection (3) requires that prior authorization programs must meet some form of national standards, in addition to the new rule requirements. But, these programs are not required to be certified by any national entity.
    • In response to provider concerns about the qualifications of the individuals who evaluate prior authorizations, language was added to state that: “A prior authorization program must have staff who are property qualified, trained, supervised, and supported by explicit written, current clinical review criteria and review procedures.” Of course, providers wanted more requirements, but, as noted earlier in this article, these rules represent a balancing act between providers and carriers, with the OIC as the referee.
  • Subsection (4) requires that carriers have an online prior authorization process, by November 1, 2019. Unfortunately, this online process is only available to participating providers and facilities. Provider groups pushed back hard on this, but couldn’t overcome carrier concerns about allowing non-participating providers, with whom they have no contract, to access their data base. The compromise is found in subsection (6).
  • Subsection (5) is a restatement of subsection (4) in parts. The requirements of subsections (4) and (5) do not apply to employees participating in an integrated delivery system.
  • Subsection (6) requires a carrier to have a method that allows an out-of-network provider or facility to: (1) have access to any preservice requirements; and (2) request a prior authorization if one is required. The OIC believes this is a big step forward for out-of-network providers, because currently in these types of situations, it’s the enrollee who must obtain the prior authorization.
  • Subsection (7) states that providers or facilities can submit a prior authorization request at all times, including outside normal business hours.
  • Subsection (8) makes the carrier responsible for maintaining information submitted by providers during the prior authorization process. This information must be kept until the claim has been paid, or the appeals process has been exhausted.
  • Subsection (8)(a) gives a provider or facility the option to request “written acknowledgment” of each document submitted during the processing of a prior authorization request. The term “written acknowledgment” is not defined, but hopefully will be in the carrier/provider contract.
  • Subsection (9) is a general statement concerning timely decision making by carriers, and subsection (10) outline the time frames for both carriers and participating providers in the prior authorization process. There are no applicable time frames for out-of-network providers. Note that the word “calendar day” is used, but there is no definition. The OIC wants to give carriers and providers some flexibility in how “calendar day” is defined. This is potentially very confusing. In talking with the OIC the hope is that the carrier/provider contract will delineate exactly how these words are to be interpreted.
    • Subsection (10)(a) deals with timelines for standard prior authorization requests.
    • Subsection (10)(b) deals with timelines for expedited prior authorization requests.
    • Subsection (11) sets forth certain requirements for carriers.
    • Subsection (11)(a) requires carriers to accept any evidence-based information;
    • Subsection (11)(b)directs carriers to only collect the information necessary to authorize a service and maintain a process for a provider to submit records;
    • Subsection (11)(c) directs carriers to only request those medical records necessary to the specific situation; and
    • Subsection (11)(d) directs carriers to base determinations on the medical information in the enrollee’s records up to the time of review.
  • Subsection (12) requires carriers to respond to providers’ prior authorization requests with an approval or denial in writing or orally. If notice is given orally, a subsequent written notice must be provided.
    • If denied, the response must give the specific reason.
    • If denied based on clinical review criteria, the criteria must be provided.
    • A denial must include the department and credentials of the individual who has the authority to approve or deny the request.
    • Denial must also include a phone number to contact the authorizing authority.
    • Denial must include a notice regarding the enrollee’s appeal rights and process.
  • Subsection (13) sets forth requirements for prior authorization approval notifications. In particular, the notification must state if the service may be delivered by an out-of-network provider and if so, disclose to the enrollee the financial implications.
  • Subsection (14) states that providers may appeal a prior authorization denial to the carrier.
  • Subsection (15) states that prior authorization approvals shall last for at least 45 days from approval. However, this provision is not valid if a person no longer has insurance coverage. The statute referenced deals with grace periods.
  • Subsection (16) involves those situations where an enrollee must change plans due to a carrier’s withdrawal from the marketplace, and the enrollee has a prior authorization—but the service has not been delivered. In this consumer-friendly provision the new carrier must honor the prior authorization until the new carrier’s prior authorization process has been completed. And the service authorized is to be considered in-network, assuming the previous prior authorization was also for an in-network service.
  • Subsection (17) deals with prior authorization for facility-to-facility transports.
  • Subsection (18) requires carriers to have a prior authorization process that allows specialists to request a prior authorization for a diagnostic or laboratory service based on a review of medical records in advance of seeing the enrollee.
  • Subsection (19) requires carriers to have a method that allows an enrollee or provider to make a predetermination request when provided for in the plan. Note: This is one the only times when enrollees can make a request.
  • Subsection (20) sets out additional language concerning the predetermination notice that are sent by carriers in response to predetermination requests. Notices must be delivered within five calendar days of receipt of a request. And the notice must clearly state that it does not constitute prior authorization, etc.

WAC 284-43-2060—Extenuating circumstances in prior authorization. This is another New Section, so all the language is new, and therefore there are no underlines or deletes. This WAC section was very important to provider groups, and provider groups worked hard any language on this topic. Unfortunately, it applies only to participating providers. Also, this is a good time to remember that a retroactive denial of a claim is not legal. Here is a link to the relevant state statute.

  • Subsection (1) states that this applies to plans issued or renewed on or after January 1, 2018. The language is similar to WAC 284-43-2050(1).
  • Subsection (2) requires carriers to have an extenuating circumstances policy which eliminates the prior authorization requirement for services when an extenuating circumstance prevents a participating provider from obtaining a prior authorization before a service is delivered. Note: This applies only to participating providers, despite strong objections by the provider community.
  • Subsection (3) defines an extenuating circumstance as “an unforeseen event or set of circumstances which adversely affects the ability of a participating provider to request prior authorization prior to service delivery.”
  • Subsection (4) states that when a carrier is notified of an extenuating circumstance either before a claim is submitted or at the initiation of an appeal, the carrier must process the claim or appeal without any requirement for prior authorization.
  • Subsection (5) lists a variety of situations that constitute extenuating circumstances.
  • Subsection (6) allows a carrier to require a participating provider to follow certain procedures and time frames for extenuating circumstances, which must be posted online. In addition, language is included to state that: “Claims and appeals related to an extenuating circumstance may still be reviewed for appropriateness, level of care, effectiveness, benefit coverage and medical necessity under the criteria for the applicable plan, based on the information available to the provider at the time of treatment.”
  • Subsection (7) states that the requirements of WAC 284-43-2000 (health care services utilization review) apply to extenuating circumstances.
  • Subsection (8) states that this section does not apply to prescription drug services.

Next steps. Remember, most of the key rules provisions are not effective until January 1, 2018. When they are effective, it will be very important for providers to file complaints with the Office of the Insurance Commissioner, if you do not believe carriers, regulated by the OIC, are complying with the new prior authorization rules. If there are implementation problems, the OIC needs to see trends. That’s why it’s so important that you speak up. And one way of doing that is by filing a complaint. Here’s a link to how to get started, from the OIC’s webpage.