Chapter Ins 18

Ins 18.10 Ins 18.10 Definitions. In addition to the definitions in s. 632.835 (1), Stats., in this subchapter:

Ins 18.10(1) (1) “Adverse determination” has the meaning as defined in s. 632.835 (1) (a), Stats. This includes the denial of a request for a referral for out-of-network services when the insured requests health care services from a provider that does not participate in the insurer’s provider network because the clinical expertise of the provider may be medically necessary for treatment of the insured’s medical condition and that expertise is not available in the insurer’s provider network.

Ins 18.10(2) (2) “Experimental treatment determination” means a determination by or on behalf of an insurer that issues a health benefit plan to which all of the following apply:

Ins 18.10(2)(a) (a) A proposed treatment has been reviewed.

Ins 18.10(2)(b) (b) Based on the information provided, the treatment under par. (a) is determined to be experimental under the terms of the health benefit plan.

Ins 18.10(2)(c) (c) Based on the information provided, the insurer that issued the health benefit plan denied the treatment under par. (a) or payment for the treatment under par. (a).

Ins 18.10(2)(d) (d) Pursuant to s. 632.835 (5) (c), Stats., the cost or expected cost of the denied treatment or payment exceeds, or will exceed during the course of the treatment, the amount published in accordance with s. Ins 18.105.

Ins 18.10(3) (3) “Health benefit plan” has the meaning provided in s. 632.835 (1) (c), Stats., and includes Medicare supplement and replacement plans as defined in s. 600.03 (28p) and (28r), Stats., and s. Ins 3.39 (3) (v) and (w). Health benefit plan includes Medicare cost and select plans but does not include Medicare Advantage plans.

Ins 18.10(4) (4) “Medical or scientific evidence” means information from any of the following sources:

Ins 18.10(4)(a) (a) Peer-reviewed scientific studies published in or accepted for publication by medical journals that meet nationally recognized requirements for scientific manuscripts and that submit most of their published articles for review by experts who are not part of the editorial staff.

Ins 18.10(4)(b) (b) Peer-reviewed medical literature, including literature relating to therapies reviewed and approved by a qualified institutional review board, biomedical compendia and other medical literature that meet the criteria of the National Institutes of Health’s Library of Medicine for indexing in Index Medicus, Excerpta Medicus (EMBASE), Medline and MEDLARS database Health Services Technology Assessment Research (HSTAR).

Ins 18.10(4)(c) (c) Medical journals recognized by the Secretary of Health and Human Services under 42 USC1320c et. seq. of the federal Social Security Act.

Ins 18.10(4)(d) (d) Any of the following standard reference compendia most current edition in publication at the time of the dispute:

Ins 18.10(4)(d)1. 1. The American Hospital Formulary Service — Drug Information.

Ins 18.10(4)(d)2. 2. The Center for Drug Evaluation and Research History.

Ins 18.10(4)(d)3. 3. The ADA/PDR Guide to Dental Therapeutics, current edition.

Ins 18.10(4)(d)4. 4. The United States Pharmacopeia — National Formulary.

Ins 18.10(4)(e) (e) Findings, studies or research conducted by, or under the auspices of, federal governmental agencies and nationally recognized federal research institutes, including:

Ins 18.10(4)(e)1. 1. The federal Agency for Healthcare Research and Quality.

Ins 18.10(4)(e)2. 2. The National Institutes of Health.

Ins 18.10(4)(e)3. 3. The National Cancer Institute.

Ins 18.10(4)(e)4. 4. The National Academy of Sciences.

Ins 18.10(4)(e)5. 5. The Health Care Financing Administration.

Ins 18.10(4)(e)6. 6. Any national board recognized by the National Institutes of Health for the purpose of evaluating the medical value of health care services.

Ins 18.10(4)(e)7. 7. Any other medical or scientific evidence that is comparable to the sources listed in this paragraph.

Ins 18.10(4e) (4e) “Preexisting condition exclusion denial determination” has the meaning as defined in s. 632.835 (1) (cm), Stats.

Ins 18.10(4m) (4m) “Legal basis” means information from any of the following sources:

Ins 18.10(4m)(a) (a) The most current version of The American Journal of Jurisprudence.

Ins 18.10(4m)(b) (b) United States 7th Judicial Circuit Court decisions.

Ins 18.10(4m)(c) (c) Wisconsin statutory and common law.

Ins 18.10(4m)(d) (d) The terms of the insurance contract applicable for the period of coverage in dispute.

Ins 18.10(5) (5) “Unbiased” means an independent review organization that complies with all of the following:

Ins 18.10(5)(a) (a) Section 632.835 (6), Stats.

Ins 18.10(5)(b) (b) The independent review organization does not provide incentives of any kind, including financial incentives, to providers or consumers as inducements for selection as the independent review organization.

Ins 18.10(5)(c) (c) The independent review organization does not directly or indirectly receive any compensation, in any form, related to a review, other than the compensation permitted under this subchapter and s. 632.835, Stats.

Ins 18.10(5)(d) (d) The independent review organization does not promote, to providers, consumers or insurers any of the following:

Ins 18.10(5)(d)1. 1. A pattern of favorable results or a pattern of favorable results on a particular treatment or subject.

Ins 18.10(5)(d)2. 2. An association with a class of providers, consumers or insurers.

Ins 18.10(5)(d)3. 3. A bias favorable to a class of providers, consumers or insurers.

Ins 18.10(5)(e) (e) The independent review organization does not have a pattern of decisions that are unsupported by substantial evidence.

Ins 18.10 History History: CR 00-169: cr. Register November 2001 No. 551, eff. 12-1-01; CR 04-079: am. (2) (d) Register December 2004 No. 588, eff. 1-1-05; CR 04-121: am. (3) Register June 2005 No. 594, eff. 7-1-05; CR 10-023: am. (4) (d), cr. (4e) and (4m) Register September 2010 No. 657, eff. 10-1-10.

Ins 18.105 Ins 18.105 Annual CPI adjustment for independent review eligibility.

Ins 18.105(1) (1) Publication and effective date. The commissioner shall publish to the office of the commissioner of insurance website on or before December 1 of each year the consumer price index for urban consumers as determined by the U.S. Department of Labor and publish the adjusted dollar amount in accordance with s. 632.835 (5) (c), Stats. The adjusted dollar amount published each December shall be used by insurers offering health benefit plans when complying with s. Ins 18.10 (2) (d) and s. 632.835 (1) (a) 4., Stats., effective the following January 1.

Ins 18.105(2) (2) Determination of adjusted rates. Insurers offering health benefit plans shall apply the adjusted dollar amount published annually by the commissioner that is required to be met in accordance with s. 632.835 (1) (a) 4. and (b) 4., Stats., as follows:

Ins 18.105(2)(a) (a) For adverse determinations when treatment was received by the insured, the insurer shall use the date treatment was received to determine the proper adjusted dollar amount that is required to be met in accordance with s. 632.835 (1) (a) 4., Stats.

Ins 18.105(2)(b) (b) For adverse determinations when a course of treatment was received by the insured or terminated by the insurer, the insurer shall use later of the following dates to determine the proper adjusted dollar amount that is required to be met in accordance with s. 632.835 (1) (a) 4., Stats.:

Ins 18.105(2)(b)1. 1. The last date treatment was received by the insured; or,

Ins 18.105(2)(b)2. 2. The date the insurer mailed written notification to the insured, or the insured’s authorized representative, that the course of treatment was terminated or denied.

Ins 18.105(2)(c) (c) For experimental treatment determinations the insurer shall use the date the insurer mailed written notification to the insured, or the insured’s authorized representative, that for the proposed treatment the insurer has either denied the treatment or denied payment for the treatment, to determine the proper adjusted dollar amount that is required to be met in accordance with s. 632.835 (1) (b) 4., Stats., and s. Ins 18.10 (2) (d).

Ins 18.105 Note Note: Office website address: http://oci.wi.gov.

Ins 18.105 History History: CR 04-079: cr. Register December 2004 No. 588, eff. 1-1-05.

Ins 18.11 Ins 18.11 Independent review.

Ins 18.11(1) (1) Independent review procedures. Each insurer offering a health benefit plan shall establish procedures to ensure compliance with this section and s. 632.835, Stats.

Ins 18.11(2) (2) Notification of right to independent review. In addition to the requirements of s. 632.835 (2) (b) or (2) (bg), Stats., and s. Ins 18.03, each time an insurer offering a health benefit plan makes a coverage denial determination the insurer shall provide all of the following in the notice to the insureds:

Ins 18.11(2)(a) (a) A notice to an insured of the right to request an independent review. The notice shall comply with s. 632.835 (2) (b) or (2) (bg), Stats., and when required, to be accompanied by the informational brochure developed by the office or in a form substantially similar, describe the independent review process. The notice shall be sent when the insurer offering a health benefit plan makes a coverage denial determination. In addition, the notice shall contain all of the following information:

Ins 18.11(2)(a)2. 2. For coverage denial determinations occurring after June 15, 2002, the notice to an insured shall, in accordance with s. 632.835 (2) (c), Stats., state that the insured, or the insured’s authorized representative, must request independent review within 4 months from the date of the coverage denial determination by the insurer or from the date of receipt of notice of the grievance panel decision, whichever is later.

Ins 18.11(2)(a)3. 3. The notice shall state that the insured, or the insured’s authorized representative, shall select the independent review organization from the list of certified independent review organizations, accompanying the notice, as compiled by the commissioner and available from the insurer.

Ins 18.11 Note Note: The commissioner maintains a current listing, revised at least quarterly, of certified independent review organizations and posts the current list on the office website: http://oci.wi.gov.

Ins 18.11(2)(a)4. 4. The notice shall state that the insured’s, or the insured’s authorized representative’s, request for an independent review must be made in writing and contain the name of the selected independent review organization. The notice shall also state that the insured’s, or the insured’s authorized representative, written request be submitted to the insurer and must contain the address and name of the person or position to whom the request is to be sent.

Ins 18.11(2)(a)5. 5. The notice shall include a statement that references s. 632.835 (3) (f), Stats., informing the insured that once the independent review organization makes a determination, the determination may be binding upon the insurer and insured. For preexisting condition exclusion and rescission denial determinations, the notice shall indicate that the independent review organization determination is not binding on the insured.

Ins 18.11(2)(a)6. 6. The notice shall include a statement that references s. 632.835 (2) (d), Stats., informing the insured, or the insured’s authorized representative, that they need not exhaust the internal grievance procedure if either of the following conditions are met:

Ins 18.11(2)(a)6.a. a. Both the insurer offering a health benefit plan and the insured, or the insured’s authorized representative, agree that the appeal should proceed directly to independent review.

Ins 18.11(2)(a)6.b. b. The independent review organization determines that an expedited review is appropriate upon receiving a request from an insured or the insured’s authorized representative that is simultaneously sent to the insurer offering a health benefit plan.

Ins 18.11(2)(a)7. 7. The notice shall include a brief summary statement regarding Health Insurance Risk Sharing Plan eligibility as required in s. 632.785, Stats., when the coverage denial determination involved a policy rescission.

Ins 18.11(2)(b) (b)

Ins 18.11(2)(b)1. 1. For preexisting condition exclusion denial and rescission determinations that occur on or after January 1, 2010, but prior to the date stated in the notice published by the commissioner in the Wisconsin Administrative Register under s. 632.835 (8) (b), Stats., the notice to an insured shall state that the insured, or the insured’s authorized representative, must request the independent review within 4 months from the date stated in the notice published by the commissioner in the Wisconsin Administrative Register under s. 632.835 (8) (b), Stats.

Ins 18.11(2)(b)2. 2. For preexisting condition exclusion denial and rescission determinations occurring subsequent to the date stated in the notice published by the commissioner in the Wisconsin Administrative Register under s. 632.835 (8) (b), Stats., the notice to an insured shall comply with sub. (2) (a), state that the insured, or the insured’s authorized representative, must request the independent review within 4 months from the date of the preexisting condition exclusion denial or rescission determination by the insurer or from the date of receipt of notice of the grievance panel decision, whichever is later.

Ins 18.11(3) (3) Independent review timeframes. In addition to the requirements set forth in s. 632.835 (3), Stats., the following procedures shall be followed:

Ins 18.11(3)(a) (a) The insurer offering a health benefit plan, upon receipt of a request for independent review, shall provide written notice of the request to the commissioner and to the independent review organization selected by the insured or the insured’s authorized representative within 2 business days of receipt.

Ins 18.11(3)(b) (b) The insurer offering a health benefit plan shall provide the information required in s. 632.835 (3) (b), Stats., to the independent review organization without requiring a written release from the insured in accordance with s. 610.70 (5) (f), Stats.

Ins 18.11(3)(bm) (bm) The insurer offering a health benefit plan shall provide, upon written request from the insurer or the insured’s authorized representative, a complete copy of the insured’s policy. The insurer offering a health benefit plan shall respond to the written request within 3 business days of the request by mailing or electronically mailing the copy to the insured or the insured’s authorized representative in the format requested.

Ins 18.11(3)(c) (c) Information submitted to the independent review organization at the request of the independent review organization by either the insurer or the insured, or the insured’s authorized representative, shall also be promptly provided to the other party to the review.

Ins 18.11(3)(d) (d) Paragraphs (a) to (c) do not apply to situations where the independent review organization determines that the normal duration of the independent review process would jeopardize the life or health of the insured or the insured’s ability to regain maximum function. For these situations, the independent review organization shall develop a separate expedited review procedure for expedited situations which complies with s. 632.835 (3) (g), Stats. An expedited review shall be conducted in accordance with s. 632.835 (3) (g) 1. to 4., Stats., and shall be resolved as expeditiously as the insured’s health condition requires.

Ins 18.11(4) (4) Disputes.

Ins 18.11(4)(a) (a) A dispute between an insured and an insurer regarding eligibility for independent review shall be considered a coverage denial determination and the insured may seek independent review of the determination in accordance with this section.

Ins 18.11(4)(b) (b) Disputes that are related to administrative matters, including enrollment eligibility, not related to treatment or services are not eligible for independent review determinations.

Ins 18.11 History History: CR 00-169: cr. Register November 2001 No. 551, eff. 12-1-01; CR 04-079: am. (2) (a) 3. Register December 2004 No. 588, eff. 1-1-05; CR 10-023: am. (2) (intro.), (a) (intro.), 2., 4., 5., r. (2) (a) 1., cr. (2) (a) 7., (b), (3) (bm), (4) Register September 2010 No. 657, eff. 10-1-10.

Ins 18.12 Ins 18.12 Independent review organization procedures.

Ins 18.12(1) (1) Independent review organizations shall have, and demonstrate compliance with, written policies and procedures governing all aspects of both the standard review and expedited review processes as described in s. 632.835, Stats., including all of the following:

Ins 18.12(1)(a) (a) A regulatory compliance program that does all of the following:

Ins 18.12(1)(a)1. 1. Tracks applicable independent review laws and regulations.

Ins 18.12(1)(a)2. 2. Ensures the organization’s compliance with applicable laws.

Ins 18.12(1)(a)3. 3. Maintains a current list of potential conflicts of interest updated on no less than a quarterly basis in addition to conducting a conflict review at the time of each case referral to the organization.

Ins 18.12(1)(b) (b) A procedure to determine, upon receipt of the referral for review, all of the following:

Ins 18.12(1)(b)1. 1. Whether a conflict of interest exists. If a conflict exists, the independent review organization shall provide a written notification to the insurer, the commissioner and the insured, or the insured’s authorized representative, within 3 business days stating that a conflict exists and declining to take the review, indicating that a different independent review organization will need to be selected by the insured, or the insured’s authorized representative.

Ins 18.12(1)(b)2. 2. The type of case for which review is sought. The independent review organization shall determine if the case relates to a coverage denial determination or an administrative issue. If the independent review organization determines that the review is not related to a coverage denial determination, the independent review organization shall provide written notification to the commissioner, the insured, or the insured’s authorized representative, and the insurer of its determination within 2 business days.

Ins 18.12(1)(b)3. 3. The specific question or issue that is to be resolved by the independent review process.

Ins 18.12(1)(b)4. 4. Whether the amount published in accordance with s. Ins 18.105, has been met based upon the type of determination the insurer made. The independent review organization shall calculate the amount that is required to be met, in accordance with s. 632.835 (1) (a) 4. and (b) 4., Stats., and s. Ins 18.10 (2) (d), as adjusted in accordance with s. 632.835 (5) (c), Stats., and s. Ins 18.105, using the actual cost charged the insured without deduction for cost sharing or contractual agreements with providers.

Ins 18.12(1)(b)5. 5. Whether the case merits standard review or expedited review.