§ 4089f. Independent external review of health care service decisions

(a) As used in this section:

(1) “Health benefit plan” means a policy, contract, certificate, or agreement entered into, offered, or issued by a health insurer, as defined in 18 V.S.A. § 9402, to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.

(2) “Insured” means the beneficiary of a health benefit plan, including the subscriber and all others covered under the plan, and shall also mean a member of a health benefit plan not otherwise subject to the Department’s jurisdiction that has voluntarily agreed to use the external review process provided under this section.

(b) An insured who has exhausted all applicable internal review procedures provided by the health benefit plan shall have the right to an independent external review of a decision under a health benefit plan to deny, reduce, or terminate health care coverage or to deny payment for a health care service. The independent review shall be available when requested in writing by the affected insured, provided the decision to be reviewed requires the plan to expend at least $100.00 for the service and the decision by the plan is based on one of the following reasons:

(1) The health care service is a covered benefit that the health insurer has determined to be not medically necessary.

(2) A limitation is placed on the selection of a health care provider that is claimed by the insured to be inconsistent with limits imposed by the health benefit plan and any applicable laws and rules.

(3) The health care treatment has been determined to be experimental, investigational, or an off-label drug. A health benefit plan that denies use of a prescription drug for the treatment of cancer as not medically necessary or as an experimental or investigational use shall treat any internal appeal of such denial as an emergency or urgent appeal, and shall decide such appeal within the time frames applicable to emergency and urgent internal appeals under rules adopted by the Commissioner.

(4) The health care service involves a medically based decision that a condition is preexisting.

(5) The decision involves an adverse determination related to surprise medical billing, as established under Section 2799A-1 or 2799A-2 of the Public Health Service Act, including with respect to whether an item or service that is the subject of the adverse determination is an item or service to which Section 2799A-1 or 2799A-2 of the Public Health Service Act, or both, applies.

(c) The right to review under this section shall not be construed to change the terms of coverage under a health benefit plan.

(d) The Department shall adopt rules necessary to carry out the purposes of this section. The rules shall ensure that the independent external reviews have the following characteristics:

(1) The independent external reviews shall be conducted:

(A) by independent review organizations pursuant to a contract with the Department, and the reviewers shall include health care providers credentialed with respect to the health care service under review and have no conflict of interest relating to the performance of their duties under this section; and

(B) in accordance with standards of decision-making based on objective clinical evidence and shall resolve all issues in a timely manner and provide expedited resolution when the decision relates to emergency or urgent health care services.

(2) An insured shall:

(A) Be provided with adequate notice of his or her review rights under this section.

(B) Have the right to use outside assistance during the review process and to submit evidence relating to the health care service.

(C) Pay an application fee of $25.00 for each request for an independent external review of an appealable decision not to exceed a total of $75.00 annually. The application fee may be waived or reduced based on a determination by the Commissioner that the financial circumstances of the insured warrant a waiver or reduction. The application fee shall be paid by the insurer, not the insured, if the independent review organization reverses an insurer’s decision to deny payment for a health care service.

(D) Be protected from retaliation for exercising his or her right to an independent external review under this section.

(3) Other costs of the independent review shall be paid by the health benefit plan.

(4) The independent review organization shall issue to both parties a written review decision that is evidence-based. The decision shall be binding on the health benefit plan.

(5) The confidentiality of any health care information acquired or provided to the independent review organization shall be maintained in compliance with any applicable State or federal laws.

(6) The records of, and internal materials prepared for, specific reviews by any independent review organization under this section shall be exempt from public disclosure under 1 V.S.A. § 316.

(e) [Repealed.]

(f) Decisions relating to the following health care services shall not be reviewed under this section but shall be reviewed by the review process provided by law:

(1) health care services provided by the Vermont Medicaid program or Medicaid benefits provided through a contracted health plan; and

(2) health care services provided to inmates by the Department of Corrections. (Added 1997, No. 159 (Adj. Sess.), § 1, eff. April 29, 1998; amended 2005, No. 139 (Adj. Sess.), § 2; 2011, No. 21, §§ 14a-16; 2021, No. 137 (Adj. Sess.), § 4, eff. July 1, 2022.)