3 AAC 28.585 - Appealing an insurer's determination that the benefit trigger is not met

(a) For purposes of this section, "authorized representative" is authorized to act as the covered person's personal representative within the meaning of 45 C.F.R. 164.502(g) and means the following:

(1) a person to whom a covered person has given express written consent to represent the covered person in an external review;

(2) a person authorized by law to provide substituted consent for a covered person; or

(3) a family member of the covered person or the covered person's treating health care professional only when the covered person is unable to provide consent.

(b) If an insurer determines that the benefit trigger of a long-term care insurance policy has not been met, it shall provide a clear, written notice to the insured and the insured's authorized representative, if applicable, of all of the following:

(1) the reason that the insurer determined that the insured's benefit trigger has not been met;

(2) the insured's right to internal appeal in accordance with (c) of this section, and the right to submit new or additional information relating to the benefit trigger denial with the appeal request; and

(3) the insured's right, after exhaustion of the insurer's internal appeal process, to have the benefit trigger determination reviewed under the independent review process in accordance with (d) of this section.

(c) The insured or the insured's authorized representative may appeal the insurer's adverse benefit trigger determination by sending a written request to the Insurer along with additional supporting information, not later than 120 calendar days after the insured and the insured's authorized representative, if applicable, receives the insurer's benefit determination notice. The internal appeal shall be considered by an individual or group of individuals designated by the insurer, if the individual or individuals making the internal appeal decision are not the same individual or individuals who made the initial benefit determination. The internal appeal shall be completed and written notice of the internal appeal decision shall be sent to the insured and the insured's authorized representative, if applicable, not later than 30 calendar days after the insurer's receipt of all necessary information upon which a final determination can be made. The internal appeal is subject to the following:

(1) if the insurer s original determination is upheld upon internal appeal, the notice of the internal appeal decision shall describe additional internal appeal rights offered by the insurer; nothing in this paragraph requires the insurer to offer internal appeal rights other than those described in this subsection;

(2) if the insurer's original determination is upheld after the internal appeal process has been exhausted, and new or additional information has not been provided to the insurer, the insurer shall provide a written description of the Insured's right to request an independent review of the benefit determination as described in (d) of this section to the insured and the insured's authorized representative, if applicable;

(3) as part of the written description of the insured's right to request an independent review, an insurer shall include the following, or substantially equivalent, language: "We have determined that the benefit eligibility criteria ("benefit trigger") of your has not been met. You may have the right to an independent review of our decision conducted by long-term care professionals who are not associated with us. Please send a written request for independent review to us at. You must inform us, in writing, of your election to have this decision reviewed within 180 days of receipt of this letter. Listed below are the names and contact information of the independent review organizations available to conduct long-term care insurance benefit eligibility reviews. If you wish to request an independent review, please choose one of the listed organizations and include its name with your request for independent review. If you elect independent review, but do not choose an independent review organization with your request, we will choose one of the independent review organizations for you and refer the request for independent review to it;"

(4) if the insurer does not believe the benefit trigger decision is eligible for independent review, the insurer shall inform the insured and the insured's authorized representative, if applicable, in writing and include in the notice the reasons for its determination of independent review ineligibility; and;

(5) the appeal process described in this subsection is not a new service or provider as referenced in 3 AAC 28.579, and therefore does not trigger the notice requirements of that section.

(d) The insured or the insured's authorized representative may request an independent review of the insurer's benefit trigger determination after the internal appeal process set out in (c) of this section has been exhausted. A written request for independent review may be made by the insured or the insured's authorized representative to the insurer not later than 180 calendar days after the insurer's written notice of the final internal appeal decision is received by the insured and the insured's authorized representative, if applicable. the insurer shall be as the cost of the independent review. The independent review process is subject to the following:

(1) not later than five working days after receiving a written request for independent review, the insurer shall refer the request to the independent review organization that the insured or the insured's authorized representative has chosen from the list of certified or approved organizations the insurer has provided to the insured if the insured or the insured's authorized representative does not choose an approved independent review organization to perform the review, the insurer shall choose an independent review organization approved or certified by the state; the insurer shall vary its selection of authorized independent review organizations on a rotating basis;

(2) the insurer shall refer the request for independent review of a benefit trigger determination to an independent review organization, subject to the following:

(A) the independent review organization must be on a list of certified or approved independent review organizations that satisfy the requirements of a qualified long-term care insurance independent review organization contained in this section;

(B) the independent review organization may not have conflicts of interest with the insured, the insured's authorized representative, if applicable, or the insurer; and

(C) a review shall be limited to the information or documentation provided to and considered by the insurer in making its determination, including information or documentation considered as part of the internal appeal process;

(3) if the insured or the insured's authorized representative has new or additional information not previously provided to the insurer, whether submitted to the insurer or the independent review organization, the information shall first be considered in the internal review process, as set out in (c) of this section in accordance with the following:

(A) while this information is being reviewed by the insurer, the independent review organization shall suspend its review and the time period for review is suspended until the insurer completes its review;

(B) the insurer shall complete its review of the information and provide written notice of the results of the review to the insured and the insured's authorized representative, if applicable, and the independent review organization not later than five working days after the insurer's receipt of new or additional information;

(C) if the insurer maintains its denial after a review, the independent review organization shall continue its review, and render its decision within the time period specified in (9) of this subsection if the insurer overturns its decision following its review, the independent review request shall be considered withdrawn;

(4) the insurer shall acknowledge in writing to the insured and the insured s authorized representative, if applicable, that the request for independent review has been received, accepted, and forwarded to an independent review organization for review; the notice must include the name and address of the independent review organization;

(5) not later than five working days after receipt of the request for independent review, the independent review organization assigned under this subsection shall notify the insured and the insured's authorized representative, if applicable, the insure and the director that it has accepted the independent review request and identify the type of licensed health care professional assigned to the review; the assigned independent review organization shall include in the notice a statement that the insured or the insured's authorized representative may submit in writing to the independent review organization not later than seven days following the date of receipt of the notice additional information and supporting documentation that the independent review organization should consider when conducting its review;

(6) the independent review organization shall review all of the information and documents received under (5) of this subsection that have been provided to the independent review organization; the independent review organization shall provide copies of the documentation or information provided by the insured or the insured's authorized representative to the insurer for its review, if it is not part of the information or documentation submitted by the insurer to the independent review organization; the insurer shall review the information or documentation, and provide its analysis of the new information or documentation in accordance with (8) of this subsection;

(7) the insured or the insured's authorized representative may submit new or additional information not previously provided to the insurer but pertinent to the benefit trigger denial; the insurer shall consider the information and affirm or overturn its benefit trigger determination; if the insurer affirms its benefit trigger determination, the insurer shall promptly provide the new or additional information to the independent review organization for its review, along with the insurer's analysis of the information;

(8) if the insurer overturns its benefit trigger determination;

(A) the insurer shall provide notice to the independent review organization and the insured and the insured's authorized representative, if applicable, of its decision; and

(B) the independent review process shall immediately stop;

(9) the independent review organization shall provide the insured and the insured's authorized representative, if applicable, the insurer and the director written notice of its decision, not later than 30 calendar days from receipt of the referral referenced in (d)(2) of this section; if the independent review organization overturns the insurer's decision, it shall:

(A) establish the precise date within the specific period of time under review that the benefit trigger was considered to have been met;

(B) specify the specific period of time under review for which the insurer declined eligibility, but during which the independent review organization considered the benefit trigger to have been met; and

(C) for tax-qualified long-term care insurance contracts, provide a certification, made only by a licensed health care practitioner within the meaning given is 26 U.S.C. 7702B(c)(4) (Internal Revenue Code) that the insured is a chronically ill individual;

(10) the decision of the independent review organization with respect to whether the insured met the benefit trigger is final and binding on the insurer;

(11) the independent review organization's determination shall be used solely to establish liability for benefit trigger decisions, and is intended to be admissible in a proceeding only to the extent it establishes the eligibility of benefits payable;

(12) nothing in this section restrict's the insured's right to submit a new request for benefit trigger determination after the independent review decision, if the independent review organization uphold's the insurer's decision;

(13) the division will accept another state's certification of an independent review organization, if the other state requires the independent review organization to meet substantially similar qualification's those prescribed by the director.

(e) Nothing in this section limit's the ability of an insurer to assert rights an insurer may have under the policy related to

(1) an insured's misrepresentation;

(2) changes in the insured's benefit eligibility; and

(3) terms, conditions, and exclusions of the policy, other than failure to meet the benefit trigger.

(f) The requirements of this section apply to a benefit trigger request made on or after January 1, 2023 under a long-term care insurance policy.

(g) The provisions of this section supersede other external review requirements found in 3 AAC 28.950 - 3 AAC 28.982.

Notes

3 AAC 28.585

Eff. 3/27/2022, Register 241, April 2022

Authority:AS 21.06.090

AS 21.07.005

AS 21.53.064

AS 21.53.090