Non-grandfathered self-insured group health plans now have guidance regarding the new requirements for federal external reviews of adverse benefit determinations. On August 26, 2010, the Departments of the Treasury, Labor, and Health and Human Services published a notice announcing the issuance of the Employee Benefits Security Administration’s Technical Release 2010-01 (the “Technical Release”). The Technical Release announces interim procedures that self-insured group health plans must implement for plan years beginning on or after September 23, 2010. The interim procedures will remain in effect until superseded by to-be-issued finalized guidance.
The Technical Release creates a safe harbor for non-grandfathered self-insured group health plans for the period that its interim procedures for external reviews are in effect. The safe harbor provides plans with two options. Plans either: (1) may comply with the terms of the Technical Release, or (2) may voluntarily comply with the State external review process that would not otherwise be applicable to a self-insured plan. The Internal Revenue Service and the Department of Labor will not seek enforcement action or excise tax liabilities against plans that take advantage of this safe harbor.
The Technical Release outlines the new compliance requirements for both standard federal external review processes and expedited federal external review processes. Among the primary requirements are the following:
In addition to the above outlined requirements, the Technical Release requires non-grandfathered self-insured plans that are relying upon the safe harbor to contract with at least three different IROs for purposes of processing of external review requests. Such plans also must rotate (or randomly select, or assign by some other unbiased means) their external review requests among the IROs. The Technical Release also outlines provisions that must be included in the contracts between plans and IROs, including, but not limited to, the contents of notifications sent from IROs to plans and claimants.
Non-grandfathered self-insured group health plans will have to decide whether to take advantage of the safe harbor presented in the Technical Release. Plans that proceed with the safe harbor must choose whether to comply with the requirements of the Technical Release or comply with an applicable State external review process. Whatever path is chosen, plans will need to act quickly to identify, document, and implement these new processes in time for plan years beginning on or after September 23, 2010.
The following internal and external appeal process model notices were also issued by the Departments of the Treasury, Labor, and Health and Human Services:
These model notices will assist plans and issuers in meeting the notice requirements set forth in the Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Internal Claims and Appeals and External Review Processes Under the Patient Protection and Affordable Care Act published on July 23, 2010.
The Baker Hostetler Health Care Reform Team is ready to assist you with designing, documenting and implementing your plan’s procedures or with any questions you have regarding this guidance or any other health care reform issue. Please contact Deborah K. Bracy (216.861.7354 or
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