Appeals Under "Gold Card" Law

Hugh McDonald SECRETARY OF COMMERCE AID BULLETIN NO. 16-2024 Alan McClain COMMISSIONER, ARKANSAS INSURANCE DEPARTMENT TO: ALL LICENSED HEALTH INSURERS, HEALTH MAINTENANCE ORGANIZATIONS, HOSPITAL AND MEDICAL SERVICE CORPORATIONS, ARKANSAS STATE MEDICAL BOARD, ARKANSAS STATE BOARD OF PHARMACY, AND OTHER INTERESTED PARTIES FROM: ARKANSAS INSURANCE DEPARTMENT DATE: SEPTEMBER 19, 2024 RE: APPEALS UNDER "GOLD CARD" LAWS The purpose of this bulletin is to establish a procedure for the handling of independent reviews of provider healthcare services prior authorization exemption rescissions, pursuant to Ark. Code Ann. § 23-99-1123, and prescription drug prior authorization continuation disallowances, pursuant to Ark. Code Ann. § 23-99-1129. I. Appeal of provider healthcare services prior authorization exemption rescissions. A. A healthcare provider has a right to a review of an adverse determination regarding a prior authorization exemption within twelve (12) months of receiving proper notice of recission from a healthcare insurer to be conducted by an independent review organization. B. The healthcare provider shall file the appeal in accordance with the healthcare insurer's instructions, as described in Ark. Code Ann. § 23-99-1122(a)(2)(B)(ii), (iv), and (v). C. When filing the appeal, the healthcare provider may request review of a second random sample of claims, as authorized under Ark. Code Ann. § 23-99-1123(d)(1), if the claims information required by Ark. Code Ann. § 23-99-1122(a)(2)(B)(iii) identified that at least five (5) additional claims were eligible for review but not included in the original random sample. D. Immediately upon receipt of the healthcare provider's appeal request, the healthcare insurer shall complete a preliminary review of the appeal request to determine whether: i. The healthcare provider has provided all the information required by Ark. Code Ann. § 23-99-1122(a)(2)(B)(iv)(a)-(c); and Arkansas Department of Commerce Arkansas Insurance Department 1 Commerce Way, Suite 102 ' Little Rock, AR 72202 I NSU RAN CE.A R KAN SAS.GOV ii. The healthcare provider's appeal is eligible for independent review under Ark. Code Ann. § 23-99-1123(a)(3), which reads: "[a] healthcare provider who has an exemption rescinded due to a failure to provide medical records within sixty (60) days of a record request for a retrospective review shall not be eligible for review of that rescission by an independent review entity." E. The healthcare insurer shall immediately notify the commissioner in writing at aid.goldcardexemption@arkansas.gov and the healthcare provider in writing regarding whether the appeal request: i. Is complete; and ii. Is eligible for independent review under Ark. Code Ann. § 23-99- 1123(a)(3). F. If the appeal request is not complete: i. The healthcare insurer shall inform the healthcare provider and the commissioner in writing of the deficiency no later than two (2) business days from the receipt of the appeal request and shall describe in the notice the information or materials needed to make complete the request; and ii. The provider shall have no more than one (1) business day to provide the requested materials; and iii. The healthcare insurer shall then have one (1) business day to review the additional materials for completeness and repeat the above described steps in I(E) and, if necessary, I(F). G. Within two (2) business days of receipt of the notice that an appeal is eligible for independent review, the commissioner shall: i. Assign an independent review organization from the list of approved independent review organizations compiled and maintained by the commissioner to conduct the review, pursuant to Rule 76, § 12 (eff. Jan. 1, 2025, codified at 23 CAR § 117- 111); ii. Notify the healthcare insurer of the name and contact information of the assigned independent review organization; and iii. Notify the healthcare provider of the name of the assigned independent review organization. H. Upon receipt of the name and contact information for the assigned independent review organization, the healthcare insurer shall provide to the assigned independent review organization: 2 i. The information described in Ark. Code Ann. § 23-99-1122(a)(2)(B)(iii); ii. Copies of any medical records and documents described in Ark. Code Ann. § 23-99-1122(c)(1); and iii. Any other documents and other information the healthcare insurer considered in making its decision to rescind the healthcare provider's previous prior authorization exemption. I. If the healthcare provider requested that the independent review organization consider a second random sample of claims, the healthcare insurer shall have two (2) business days after receiving the name and contact information for the assigned independent review organization to provide the assigned independent review organization with a listing of all payable claims for the same health care service submitted by the healthcare provider during the evaluation period that were eligible to be evaluated but that were not included in the original random sample. The listing must be sufficiently detailed to allow the independent review organization to identify each payable claim to be used in the second random sample. J. If a second random sample is requested, the independent review organization shall immediately identify, from the list of eligible claims provided by the healthcare insurer, a second random sample of at least five (5) and no more than twenty (20) claims. K. Once the independent review organization has identified the claims that will comprise the second random sample, the independent review organization shall in writing request the corresponding medical records from the healthcare insurer. The independent review organization shall provide the healthcare provider with written notice of the request. L. With a copy to the healthcare provider, the healthcare insurer shall provide the requested medical records to the independent review organization no later than two (2) business days from receipt of the independent review organization's request. M. The healthcare provider shall have no more than three (3) business days from the date it receives the healthcare insurer's response to provide the independent review organization with any additional medical records necessary for the independent review organization to review the second random sample of claims. N. The independent review organization shall determine whether to affirm or overturn the health care insurer's determination that less than ninety percent (90%) of the claims met the applicable medical necessity criteria by reviewing each claim that the healthcare insurer retrospectively reviewed and determined did not meet the applicable 3 medical necessity criteria and, if applicable, each claim included in the second random sample identified by the independent review organization. O. An independent review organization shall complete a review of an adverse determination regarding a prior authorization exemption no later than: i. Thirty (30) days after the date a healthcare provider files the request for a review, per Ark. Code Ann. § 23-99-1123(c); or ii. Sixty (60) days after the date a healthcare provider files the request for a review, if the healthcare provider requested a second random sample. P. Immediately after reaching its decision, the independent review organization shall notify the healthcare provider, the healthcare insurer, and the commissioner of its decision. II. Appeal of prescription drug prior authorization continuation disallowance. A. If the Arkansas State Board of Pharmacy and the Arkansas State Medical Board disallow a prior authorization of a prescription drug, medicine, biological product, pharmaceutical, or pharmaceutical service requested under Ark. Code Ann. § 23-99- 1128, a healthcare insurer, pharmacy benefits manager, or other interested party may file an appeal to the State Insurance Department within ninety (90) days of the disallowance of the prior authorization. B. The appeal filed with the Insurance Commissioner shall be sent to aid.goldcardexemption@arkansas.gov and shall include: i. A copy of the written request, including any supporting documentation, the healthcare insurer or pharmacy benefits manager sent the Arkansas State Board of Pharmacy for any prescription drug, medicine, biological product, pharmaceutical, or pharmaceutical service to be reviewed for a continuation of prior authorization, as described in Ark. Code Ann. § 23-99-1128(a). ii. A copy of the criteria and procedures adopted by the Arkansas State Board of Pharmacy and the Arkansas State Medical Board, as described in Ark. Code Ann. § 23-99-1128(b). iii. A copy of the Boards' decision, including any supporting documentation used to make the decision, as described in Ark. Code Ann. § 23-99-1128(c)(1). C. The healthcare insurer shall notify the Arkansas State Board of Pharmacy and the Arkansas State Medical Board in writing of the appeal but need not include all attachments described above in II(B)(i)-(iii). D. No later than the thirtieth day after the date a healthcare insurer, pharmacy benefits manager, or other interested party files the appeal, the Insurance Commissioner shall appoint an independent review organization from the list 4 maintained by the Commissioner pursuant to Rule 76, § 12 (effective Jan. 1, 2025, codified at 23 CAR § 117-111) to review the appeal and shall submit to the appointed independent review organization the information described above in II(B)(i)-(iii). E. The assigned independent review organization shall review the information submitted under II(B)(i)-(iii) when deciding whether to uphold or reverse the Boards' decision to disallow the continuation of prior authorization. F. Within forty-five (45) days after the date it receives the appeal, the assigned independent review organization shall provide written notice of its decision to: i. the healthcare insurer, pharmacy benefits manager, or other interested party that filed the appeal; ii. the Arkansas State Board of Pharmacy; iii. the Arkansas State Medical Board; and iv. the Insurance Commissioner. For questions related to this Bulletin, please direct all inquiries to AID's Legal Division at (501) 371-2820 or email insurance.legal@arkansas.gov. Ca/6 t Ci f Alan McClain Arkansas Insurance Commissioner Date 5