(1) DEFINITIONS. In this section: (a) “Adverse determination” means a determination by or on behalf of an insurer that issues a health benefit plan to which all of the following apply: 1. An admission to a health care facility, the availability of care, the continued stay or other treatment that is a covered benefit has been reviewed. 2. Based on the information provided, the treatment under subd. 1. does not meet the health benefit plan’s requirements for medical necessity, appropriateness, health care setting, level of care or effectiveness. 3. Based on the information provided, the insurer that issued the health benefit plan reduced, denied or terminated the treatment under subd. 1. or payment for the treatment under subd. 1. 4. Subject to sub. (5) (c), the amount of the reduction or the cost or expected cost of the denied or terminated treatment or payment exceeds, or will exceed during the course of the treatment, $250. (ag) “Coverage denial determination” means an adverse determination, an experimental treatment determination, a preexisting condition exclusion denial determination, or the rescission of a policy or certificate. (b) “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: 1. A proposed treatment has been reviewed. 2. Based on the information provided, the treatment under subd. 1. is determined to be experimental under the terms of the health benefit plan. 3. Based on the information provided, the insurer that issued the health benefit plan denied the treatment under subd. 1. or payment for the treatment under subd. 1. 4. Subject to sub. (5) (c), the cost or expected cost of the denied treatment or payment exceeds, or will exceed during the course of the treatment, $250. (c) “Health benefit plan” has the meaning given in s. 632.745 (11), except that “health benefit plan” includes the coverage specified in s. 632.745 (11) (b) 10. (cm) “Preexisting condition exclusion denial determination” means a determination by or on behalf of an insurer that issues a health benefit plan denying or terminating treatment or payment for treatment on the basis of a preexisting condition exclusion, as defined in s. 632.745 (23). (d) “Treatment” means a medical service, diagnosis, procedure, therapy, drug or device. (2) REVIEW REQUIREMENTS; WHO MAY CONDUCT. (a) Every insurer that issues a health benefit plan shall establish an independent review procedure whereby an insured under the health benefit plan, or his or her authorized representative, may request and obtain an independent review of a coverage denial determination made with respect to the insured. (b) If a coverage denial determination is made, the insurer involved in the determination shall provide notice to the insured of the insured’s right to obtain the independent review required under this section, how to request the review, and the time within which the review must be requested. The notice shall include a current listing of independent review organizations certified under sub. (4). An independent review under this section may be conducted only by an independent review organization certified under sub. (4) and selected by the insured. (bg) Notwithstanding par. (b), an insurer is not required to provide the notice under par. (b) to an insured until the insurer sends notice of the disposition of the internal grievance if all of the following apply: 1. The health benefit plan issued by the insurer contains a description of the independent review procedure under this section, including an explanation of the insured’s rights under par. (d), how to request the review, the time within which the review must be requested, and how to obtain a current listing of independent review organizations certified under sub. (4). 2. The insurer includes on its explanation of benefits form a statement that the insured may have a right to an independent review after the internal grievance process and that an insured may be entitled to expedited independent review with respect to an urgent matter. The statement shall also include a reference to the section of the policy or certificate that contains the description of the independent review procedure as required under subd. 1. The statement shall provide a toll-free telephone number and website, if appropriate, where consumers may obtain additional information regarding internal grievance and independent review processes. 3. For any coverage denial determination for which an explanation of benefits is not provided to the insured, the insurer provides a notice that the insured may have a right to an independent review after the internal grievance process and that an insured may be entitled to expedited, independent review with respect to an urgent matter. The notice shall also include a reference to the section of the policy or certificate that contains the description of the independent review procedure as required under subd. 1. The notice shall provide a toll-free telephone number and website, if appropriate, where consumers may obtain additional information regarding internal grievance and independent review processes. (c) Except as provided in par. (d), an insured must exhaust the internal grievance procedure under s. 632.83 before the insured may request an independent review under this section. Except as provided in sub. (9) (a), an insured who uses the internal grievance procedure must request an independent review as provided in sub. (3) (a) within 4 months after the insured receives notice of the disposition of his or her grievance under s. 632.83 (3) (d). (d) An insured is not required to exhaust the internal grievance procedure under s. 632.83 before requesting an independent review if any of the following apply: 1. The insured and the insurer agree that the matter may proceed directly to independent review under sub. (3). 2. Along with the notice to the insurer of the request for independent review under sub. (3) (a), the insured submits to the independent review organization selected by the insured a request to bypass the internal grievance procedure under s. 632.83 and the independent review organization determines that the health condition of the insured is such that requiring the insured to use the internal grievance procedure before proceeding to independent review would jeopardize the life or health of the insured or the insured’s ability to regain maximum function. (e) Nothing in this section affects an insured’s right to commence a civil proceeding relating to a coverage denial determination. (3) PROCEDURE. (a) To request an independent review, an insured or his or her authorized representative shall provide timely written notice of the request for independent review, and of the independent review organization selected, to the insurer that made or on whose behalf was made the coverage denial determination. The insurer shall immediately notify the commissioner and the independent review organization selected by the insured of the request for independent review. For each independent review in which it is involved, an insurer shall pay a fee to the independent review organization. (b) Within 5 business days after receiving written notice of a request for independent review under par. (a), the insurer shall submit to the independent review organization copies of all of the following: 1. Any information submitted to the insurer by the insured in support of the insured’s position in the internal grievance under s. 632.83. 2. The contract provisions or evidence of coverage of the insured’s health benefit plan. 3. Any other relevant documents or information used by the insurer in the internal grievance determination under s. 632.83. (c) Within 5 business days after receiving the information under par. (b), the independent review organization shall request any additional information that it requires for the review from the insured or the insurer. Within 5 business days after receiving a request for additional information, the insured or the insurer shall submit the information or an explanation of why the information is not being submitted. (d) An independent review under this section may not include appearances by the insured or his or her authorized representative, any person representing the health benefit plan or any witness on behalf of either the insured or the insurer. (e) In addition to the information under pars. (b) and (c), the independent review organization may accept for consideration any typed or printed, verifiable medical or scientific evidence that the independent review organization determines is relevant, regardless of whether the evidence has been submitted for consideration at any time previously. The insurer and the insured shall submit to the other party to the independent review any information submitted to the independent review organization under this paragraph and pars. (b) and (c). If, on the basis of any additional information, the insurer reconsiders the insured’s grievance and determines that the treatment that was the subject of the grievance should be covered, or that the policy or certificate that was rescinded should be reinstated, the independent review is terminated. (f) 1. If the independent review is not terminated under par. (e), the independent review organization shall, within 30 business days after the expiration of all time limits that apply in the matter, make a decision on the basis of the documents and information submitted under this subsection. The decision shall be in writing, signed on behalf of the independent review organization and served by personal delivery or by mailing a copy to the insured or his or her authorized representative and to the insurer. Except as provided in subd. 2., a decision of an independent review organization is binding on the insured and the insurer. 2. A decision of an independent review organization regarding a preexisting condition exclusion denial determination or a rescission is not binding on the insured. (g) If the independent review organization determines that the health condition of the insured is such that following the procedure outlined in pars. (b) to (f) would jeopardize the life or health of the insured or the insured’s ability to regain maximum function, the procedure outlined in pars. (b) to (f) shall be followed with the following differences: 1. The insurer shall submit the information under par. (b) within one day after receiving the notice of the request for independent review under par. (a). 2. The independent review organization shall request any additional information under par. (c) within 2 business days after receiving the information under par. (b). 3. The insured or insurer shall, within 2 days after receiving a request under par. (c), submit any information requested or an explanation of why the information is not being submitted. 4. The independent review organization shall make its decision under par. (f) within 72 hours after the expiration of the time limits under this paragraph that apply in the matter. (3m) STANDARDS FOR DECISIONS. (a) A decision of an independent review organization regarding an adverse determination or a preexisting condition exclusion denial determination must be consistent with the terms of the health benefit plan under which the adverse determination or preexisting condition exclusion denial determination was made. (b) A decision of an independent review organization regarding an experimental treatment determination is limited to a determination of whether the proposed treatment is experimental. The independent review organization shall determine that the treatment is not experimental and find in favor of the insured only if the independent review organization finds all of the following: 1. The treatment has been approved by the federal food and drug administration, if the treatment is subject to the approval of the federal food and drug administration. 2. Medically and scientifically accepted evidence clearly demonstrates that the treatment meets all of the following criteria: a. The treatment is proven safe. b. The treatment can be expected to produce greater benefits than the standard treatment without posing a greater adverse risk to the insured. c. The treatment meets the coverage terms of the health benefit plan and is not specifically excluded under the terms of the health benefit plan. (4) CERTIFICATION OF INDEPENDENT REVIEW ORGANIZATIONS. (a) The commissioner shall certify independent review organizations. An independent review organization must demonstrate to the satisfaction of the commissioner that it is unbiased, as defined by the commissioner by rule. An organization certified under this paragraph must be recertified on a biennial basis to continue to provide independent review services under this section. (ag) An independent review organization shall have in operation a quality assurance mechanism to ensure the timeliness and quality of the independent reviews, the qualifications and independence of the clinical peer reviewers and the confidentiality of the medical records and review materials. (ap) An independent review organization shall establish reasonable fees that it will charge for independent reviews and shall submit its fee schedule to the commissioner for a determination of reasonableness and for approval. An independent review organization may not change any fees approved by the commissioner more than once per year and shall submit any proposed fee changes to the commissioner for approval. (b) An organization applying for certification or recertification as an independent review organization shall pay the applicable fee under s. 601.31 (1) (Lp) or (Lr). Every organization certified or recertified as an independent review organization shall file a report with the commissioner in accordance with rules promulgated under sub. (5) (a) 4. (c) The commissioner may examine, audit or accept an audit of the books and records of an independent review organization as provided for examination of licensees and permittees under s. 601.43 (1) , (3), (4) and (5), to be conducted as provided in s. 601.44, and with costs to be paid as provided in s. 601.45. (d) The commissioner may revoke, suspend or limit in whole or in part the certification of an independent review organization, or may refuse to recertify an independent review organization, if the commissioner finds that the independent review organization is unqualified or has violated an insurance statute or rule or a valid order of the commissioner under s. 601.41 (4), or if the independent review organization’s methods or practices in the conduct of its business endanger, or its financial resources are inadequate to safeguard, the legitimate interests of consumers and the public. The commissioner may summarily suspend an independent review organization’s certification under s. 227.51 (3). (e) The commissioner shall keep an up-to-date listing of certified independent review organizations and shall provide a copy of the listing to all of the following: 1. Every insurer that is subject to this section, at least quarterly. 2. Any person who requests a copy of the listing. (5) RULES; REPORT; ADJUSTMENTS. (a) The commissioner shall promulgate rules for the independent review required under this section. The rules shall include at least all of the following: 1. The application procedures for certification and recertification as an independent review organization. 2. The standards that the commissioner will use for certifying and recertifying organizations as independent review organizations, including standards for determining whether an independent review organization is unbiased. 3. Procedures and processes, in addition to those in sub. (3), that independent review organizations must follow. 4. What must be included in the report required under sub. (4) and the frequency with which the report must be filed with the commissioner. 5. Standards for the practices and conduct of independent review organizations. 6. Standards, in addition to those in sub. (6), addressing conflicts of interest by independent review organizations. (b) The commissioner shall annually submit a report to the legislature under s. 13.172 (2) that specifies the number of independent reviews requested under this section in the preceding year, the insurers and health benefit plans involved in the independent reviews and the dispositions of the independent reviews. (c) To reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, the commissioner shall at least annually adjust the amounts specified in sub. (1) (a) 4. and (b) 4. (6) CONFLICT OF INTEREST STANDARDS. (a) An independent review organization may not be affiliated with any of the following: 1. A health benefit plan. 2. A national, state or local trade association of health benefit plans, or an affiliate of any such association. 3. A national, state or local trade association of health care providers, or an affiliate of any such association. (b) An independent review organization appointed to conduct an independent review and a clinical peer reviewer assigned by an independent review organization to conduct an independent review may not have a material professional, familial or financial interest with any of the following: 1. The insurer that issued the health benefit plan that is the subject of the independent review. 2. Any officer, director or management employee of the insurer that issued the health benefit plan that is the subject of the independent review. 3. The health care provider that recommended or provided the health care service or treatment that is the subject of the independent review, or the health care provider’s medical group or independent practice association. 4. The facility at which the health care service or treatment that is the subject of the independent review was or would be provided. 5. The developer or manufacturer of the principal procedure, equipment, drug or device that is the subject of the independent review. 6. The insured or his or her authorized representative. (6m) QUALIFICATIONS OF CLINICAL PEER REVIEWERS. A clinical peer reviewer who conducts a review on behalf of a certified independent review organization must satisfy all of the following requirements: (a) Be a health care provider who is expert in treating the medical condition that is the subject of the review and who is knowledgeable about the treatment that is the subject of the review through current, actual clinical experience. (b) Hold a credential, as defined in s. 440.01 (2) (a), that is not limited or restricted; or hold a license, certificate, registration or permit that authorizes or qualifies the health care provider to perform acts substantially the same as those acts authorized by a credential, as defined in s. 440.01 (2) (a), that was issued by a governmental authority in a jurisdiction outside this state and that is not limited or restricted. (c) If a physician, hold a current certification by a recognized American medical specialty board in the area or areas appropriate to the subject of the review. (d) Have no history of disciplinary sanctions, including loss of staff privileges but excluding temporary suspension of staff privileges due to incomplete records, taken or pending by the medical examining board or another regulatory body or by any hospital or government. (7) IMMUNITY. (a) A certified independent review organization is immune from any civil or criminal liability that may result because of an independent review determination made under this section. An employee, agent or contractor of a certified independent review organization is immune from civil liability and criminal prosecution for any act or omission done in good faith within the scope of his or her powers and duties under this section. (b) A health benefit plan that is the subject of an independent review and the insurer that issued the health benefit plan shall not be liable to any person for damages attributable to the insurer’s or plan’s actions taken in compliance with any decision regarding an adverse determination or an experimental treatment determination rendered by a certified independent review organization. (8) NOTICE OF SUFFICIENT INDEPENDENT REVIEW ORGANIZATIONS. (a) Adverse and experimental treatment determinations. The commissioner shall make a determination that at least one independent review organization has been certified under sub. (4) that is able to effectively provide the independent reviews required under this section for adverse determinations and experimental treatment determinations and shall publish a notice in the Wisconsin Administrative Register that states a date that is 2 months after the commissioner makes that determination. The date stated in the notice shall be the date on which the independent review procedure under this section begins operating with respect to adverse determinations and experimental treatment determinations. (b) Preexisting condition exclusion denials and rescissions. The commissioner shall make a determination that at least one independent review organization has been certified under sub. (4) that is able to effectively provide the independent reviews required under this section for preexisting condition exclusion denial determinations and rescissions and shall publish a notice in the Wisconsin Administrative Register that states a date that is 2 months after the commissioner makes that determination. The date stated in the notice shall be the date on which the independent review procedure under this section begins operating with respect to preexisting condition exclusion denial determinations and rescissions. (9) APPLICABILITY. (a) Adverse and experimental treatment determinations. The independent review required under this section with respect to an adverse determination or an experimental treatment determination shall be available to an insured who receives notice of the disposition of his or her grievance under s. 632.83 (3) (d) on or after December 1, 2000. Notwithstanding sub. (2) (c), an insured who receives notice of the disposition of his or her grievance under s. 632.83 (3) (d) on or after December 1, 2000, but before June 15, 2002, with respect to an adverse determination or an experimental treatment determination must request an independent review no later than 4 months after June 15, 2002. (b) Preexisting condition exclusion denials and rescissions. The independent review required under this section with respect to a preexisting condition exclusion denial determination or a rescission shall be available to an insured who receives notice of the disposition of his or her grievance under s. 632.83 (3) (d) on or after the date stated in the notice published in the Wisconsin Administrative Register by the commissioner under sub. (8) (b).
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