BEFORE THE COMMISSIONER OF SECURITIES AND INSURANCE
MONTANA STATE AUDITOR
In the matter of the adoption of NEW RULES I through VII pertaining to network adequacy
NOTICE OF ADOPTION
TO: All Concerned Persons
1. On December 24, 2014, the Commissioner of Securities and Insurance, Montana State Auditor, published MAR Notice No. 6-208 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 3017 of the 2014 Montana Administrative Register, Issue Number 24.
2. The department has adopted the above-stated rules, but with the following changes to the original proposal, stricken matter interlined, new matter underlined:
NEW RULE I (ARM 6.6.5901) APPLICABILITY AND IDENTIFICATION OF DIFFERENT LEVELS OF ADEQUACY (1) remains as proposed.
(2) The commissioner may also determine a network to be adequate pursuant to 33-22-1706(4)(a), MCA, and ARM 6.6.5902(1) and (3).
(2) remains as proposed, but is renumbered (3).
(a) The commissioner shall determine whether the payment difference between in- and out-of-network is 25% or less, based on the utilization of actuarial data developed by actuarial experts, such as the information found in the Tillinghast Manual.
according to a formula prescribed by the commissioner.
(b) Even if the commissioner determines that the insurer utilizes an acceptable payment differential under
(2)(3), that insurer shall submit the information and follow the requirements set forth in this chapter.
(3) remains as proposed, but is renumbered (4).
(5) ARM 6.6.5902(4)(b) through (f), ARM 6.6.5903(2)(b), ARM 6.6.5905(1)(b), and ARM 6.6.5906(4)(b) do not apply to dental and vision insurers.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE II (ARM 6.6.5902) NETWORK ADEQUACY (1) through (7) remain as proposed.
(8) When providing access to a nonparticipating provider or facility pursuant to
(5)(6), an insurer is not responsible for amounts that the nonparticipating provider may charge to the patient for a service that is above the reasonable "allowable charge," as determined under 33-15-308, MCA.
(9) through (10) remain as proposed.
(11) A contract between a preferred provider and an insurer must require a preferred provider who is compensated by the insurer on a discounted fee basis to accept the rate that is negotiated with the insurer as payment in full under that contract, and the participating provider may not bill the patient for charges above that amount for medically necessary covered services.
(12) remains as proposed.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE III (ARM 6.6.5903) FILING PROVIDER LISTS (1) An insurer shall
, no later than May 1 of each year, file on the date specified in filing instructions from the commissioner, an electronic report of all participating providers in that insurer's network on a form and in a manner prescribed by the commissioner. If the insurer maintains health plans with different network access, the insurer must file a separate report for each network.
(2) and (3) remain as proposed.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE IV (ARM 6.6.5905) CHOICE OF PRIMARY CARE PHYSICIAN (1) If an insurer requires a covered person to choose a primary care provider and ties claims payment to that choice or requires a primary care provider referral before seeking specialty provider services, that insurer shall provide the covered person with access to the following:
(a) and (b) remain as proposed.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE V (ARM 6.6.5906) REQUIRED DISCLOSURES REGARDING NETWORK ADEQUACY (1) Each insurer shall have a preferred provider directory on its web site and available in hard copy, if requested. The provider directory must be searchable by specialty, including primary provider designation, county and city or town. The directory must include facilities and must be updated monthly to reflect whether or not the provider is accepting new patients, if that information is available, and any additions or subtractions to the provider list. There must be a separate and clearly designated directory for each health plan type, if more than one network is offered by that insurer. In addition, each insurer shall provide access to a directory of out-of-state participating providers that includes location, provider type, and specialty.
(2) The outline of coverage, which is delivered at the point of sale, must contain a prominent disclosure concerning reimbursement of nonpreferred, out-ot-network providers, including the following information:
(a) a disclosure concerning how the allowable charge is determined;
(b) a statement that the insurer's reimbursement for out-of-network claims may be less than the full billed charges;
(c) a disclosure that the covered person may be liable to the nonpreferred provider for amounts not paid by the insurer;
(d) the amount by which the covered person's cost sharing, including deductibles, coinsurance and copayments, will be increased for out-of-network services; and
(e) disclosure of all continuity of care provisions applicable to the policy.
(3) If a new outline of coverage is not delivered at the time of renewal, the insurer shall deliver the information in (2) at renewal in a separate notice.
(4)(2) An insurer shall also include the following information displayed in a prominent manner , in the outline of coverage and, as applicable, in the separate notice required in (3):
(a) a description of the process required in ARM 6.6.5902 regarding how patients are provided access to and compensated for medically necessary care if there are no participating providers with the necessary expertise within a reasonable proximity who are able to provide the health care service without unreasonable delay; and
(b) a statement advising that out-of-network emergency room services to treat an emergency medical condition are reimbursed as if obtained in-network, if an in-network emergency room
is not cannot be reasonably available reached. That disclosure must include the definition of emergency medical condition provided in applicable federal law. ; and
(c) access to a directory of out-of-state participating providers that includes location, provider type, and specialty.
(5) If an insurer has limitations or restrictions on access to participating providers and facilities based on required authorizations or referrals, the insurer shall prominently disclose the limitations or restrictions in the outline of coverage, the supplemental notice described in (3), and in the front of the policy, certificate, or member contract itself, along with detailed instructions regarding how to obtain the service.
(6) remains as proposed, but is renumbered (3).
(a) and (a)(i) remain as proposed.
(ii) in the case of a facility, all covered persons who live in the
area city or town that the facility serves.
(b) through (b)(ii) remain as proposed.
(7)(4) The notice in (6)(3)(a) must disclose any applicable continuity of coverage provisions by referring to the section of the policy or certificate that contains contained in the policy or outline of coverage those provisions. This The notice must include a list of available preferred providers in the same geographic area who are the same provider type.
(5) This rule is effective for policies issued or renewed on or after January 1, 2016.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE VI (ARM 6.6.5907) GEOGRAPHIC SERVICES AREAS (1) An insurer may offer health plans with a limited geographic area
only to residents of individuals who live or work in that area, as long as the insurer meets the network adequacy requirements set forth in these rules and provides the commissioner with the following information:
(a) through (2) remain as proposed.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
NEW RULE VII (ARM 6.6.5908) CONTINUITY OF CARE (1) remains as proposed.
(2) If the insured requests it and the treating provider
identifies a special circumstance agrees that the insured is in an active course of treatment, the treating provider shall may:
(a) through (c) remain as proposed.
(3) As used in this rule, "
special circumstance active course of treatment" means a condition which a provider reasonably believes could cause harm to an insured if care by the treating provider is suddenly discontinued, such as pregnancy or an ongoing course of treatment for an episode of cancer or other acute condition for which discontinuing care by the current treating physician may worsen the condition and interfere with anticipated outcomes. :
(a) In a case involving an active course of treatment
a special circumstance, an insurer must ensure continuity of care until the later of the following:
(i) and (ii) remain as proposed.
(b) Except in the case of pregnancy,
a special circumstance the continuity of care period may not last longer than 90 days, or the next renewal date for that policy, whichever is longer, without insurer consent; and
A special circumstance Continuity of care protections are not required for does not include routine care for a chronic condition or primary and preventive care.
(4) remains as proposed.
(a) the insurer agrees that
a condition for which ongoing treatment is being provided is a special circumstance the insured is in an "active course of treatment" as identified by the treating physician; and
(b) the provider contract termination was not "for cause."
(5) remains as proposed.
(6) This rule is effective for policies issued or renewed on or after January 1, 2016.
AUTH: 33-22-1707, MCA
IMP: 33-22-1706, MCA
3. On January 15, 2015, a public hearing was held on the proposed adoption of the above-stated rules in Helena. Comments were received by the January 23, 2015, deadline.
4. The department has thoroughly considered the comments and testimony received. The following comments refer to specific rules which are noted above the comments.
COMMENTS ON NEW RULE I (ARM 6.6.5901) APPLICABILITY AND IDENTIFICATION OF DIFFERENT LEVELS OF ADEQUACY: Eight comments were made in regard to this rule.
COMMENT NO. 1: One commenter states that New Rule I (ARM 6.6.5901) should identify specific requirements of these rules that should not apply to dental insurers, in particular, New Rule II (ARM 6.6.5902(4)(b) through (f)), New Rule III (ARM 6.6.5903(2)(b)), New Rule IV (ARM 6.6.5905(1)(b)) and New Rule V (ARM 6.6.5906(4)(b)).
RESPONSE NO. 1: The department agrees that New Rule I (ARM 6.6.5901(4)(b) through (f)), New Rule IIl (ARM 6.6.5903(2)(b)), New Rule IV (ARM 6.6.5905(1)(b)), and New Rule V (ARM 6.6.5906(4)(b)) should not apply to dental and vision insurers and will make that change.
COMMENT NO. 2: Two commenters state that New Rule I (ARM 6.6.5901(3)) should be more descriptive. It currently states that a network may not be "so inadequate" that it constitutes a misrepresentation under 33-1-502, MCA.
RESPONSE NO. 2: The department has considered this assertion, but believes that the rule language is clear on the issue of disapproval due to misrepresentation. Section 33-1-502, MCA, states that the commissioner may not approve a form (such as a policy containing lower cost-sharing for in-network health care services), if it contains "misleading clauses" that "deceptively affect the risk purported to be assumed in the general coverage of the contract." Therefore, if a disability policy represents to consumers that lower cost sharing and protection from balance billing is available if a network provider is used, but in fact the insurer does not provide reasonable access to "in-network" providers, that policy is misleading and should be disapproved.
COMMENT NO. 3: One commenter expressed concern because there is no payment differential limit that applies if a network is determined to be adequate and therefore not subject to the 25% payment differential in New Rule I (ARM 6.6.5901(2)). This commenter suggests that the commissioner limit the cost-sharing payment differential for plans that have an adequate network, but apply an unreasonably high cost-sharing to out-of-network services.
RESPONSE NO. 3: Section 33-22-1706(4)(a), MCA, states that the 25% payment differential does not apply to health benefit plans that have an adequate network, as determined by the commissioner. This department may not create an administrative rule that conflicts with a statute.
COMMENT NO. 4: One commenter requested clarifications regarding which rules apply to a health benefit plan that meets the provider percentage requirements set forth in 33-22-1706(4)(c), MCA. This commenter requests further clarification on New Rule II (ARM 6.6.5902(3)) which applies specifically to plans that do not meet the threshold percentages in 33-22-1706(4)(c), MCA.
RESPONSE NO. 4: The department believes that the applicability of the rules is sufficiently set forth in the wording of each rule. Certain provisions clearly apply only in certain situations. New Rule I (ARM 6.6.5901(1)) clearly states that in order for a health insurer to be deemed adequate in 33-22-1706(4)(c), MCA, the insurer "must follow the requirements set forth in this chapter." For example, in order for the commissioner to determine that the percentages have been met, the insurer must demonstrate the numbers of providers in the various categories identified in New Rule II (ARM 6.6.5902(4)). The delivery of health care is complex and requires services delivered by a multitude of different provider types. New Rule I (ARM 6.6.5901(1)) identifies that the rules apply to all health insurers, regardless of their network percentages, unless otherwise clearly stated.
New Rule II (ARM 6.6.5902(3)) states there is a general adequacy standard for insurers who do not meet the threshold percentages in all of the categories. This department has been reviewing networks for the past two-and-a-half years and has not yet identified an insurer that has met the threshold percentages in 33-22-1706(4)(c), MCA, for all provider types.
COMMENT NO. 5: One commenter requests clarification that New Rule I (ARM 6.6.5901(2)) (the application of the 25% differential) refers to all health plans that have not met the threshold percentages identified in 33-22-1706(4)(c), MCA.
RESPONSE NO. 5: That is not a correct assumption. The department has clarified this in an amendment to New Rule I (ARM 6.6.5901(2)).
COMMENT NO. 6: One commenter requests that the department identify the formula that will be used by the commissioner to determine the 25% payment differential.
RESPONSE NO. 6: The department has clarified this in an amendment to New Rule I (ARM 6.6.5901(2)(a)).
COMMENT NO. 7: One commenter states that insurers that are subject to the 25% differential should not be subject to the provisions of these rules.
RESPONSE NO. 7: The department disagrees. Consumers are entitled to the protections of these rules, even if the payment differentials are limited to 25%. Furthermore, large parts of this rule relate to adequacy of consumer disclosures. Also, these rules detail how provider networks must be continuously reviewed and updated.
COMMENT NO. 8: One commenter requests that the rule clarify that an insurer that has an adequate network as determined by the commissioner is not subject to the 25% differential in 33-22-1706(4)(b), MCA.
RESPONSE NO. 8: The statute (33-22-1706, MCA) is clear on that point and there is no need for clarification.
COMMENTS ON NEW RULE II (ARM 6.6.5902 NETWORK ADEQUACY): Thirteen comments were made in regard to this rule.
COMMENT NO. 9: Two commenters wrote to specifically express their support for New Rule II (ARM 6.6.5902), particularly sections (3) and (6).
RESPONSE NO. 9: The department appreciates the comments.
COMMENT NO. 10: One commenter requested that further clarification be provided regarding which rules apply to networks with varying degrees of adequacy as described in 33-22-1706(4)(a), (b), and (c), MCA.
RESPONSE NO. 10: Please refer to the responses number 4, 5, and 7 above.
COMMENT NO. 11: One commenter asked what standards will be used for provider to covered person ratios referenced in New Rule II (ARM 6.6.5902(5)) with regard to the reasonable criteria the department "may" use to determine adequacy of choice for each provider type.
RESPONSE NO. 11: The department has concluded that it must avoid stating specific provider ratios and other specific standards involving "minimums" and "maximums" in (5). Montana has very challenging geography and sparse and scattered population density. A provider ratio that may be appropriate for Billings, Montana, is not appropriate for Circle, Montana, or even Kalispell, Montana. Therefore, the department instead chose flexibility and will evaluate these standards on a case-by-case basis that takes into account geographic challenges, population density, and provider availability.
COMMENT NO. 12: One commenter requests that when a consumer is entitled to the protections of New Rule II (ARM 6.6.5902(6)), the rule should require the insurer to apply the "balance-billed" charges referred to in New Rule II (ARM 6.6.5902(8)) (charges that the nonparticipating provider may bill to the consumer, i.e., charges that are in excess of the insurer's "allowable charge") to the insured's in-network "maximum-out-of pocket." This commenter also requests that under New Rule II (ARM 6.6.5902(6)), the insurer be held responsible for balance-billed charges. This commenter has several comments that object to the fact that this rule does not protect consumers from balance billing under New Rule II (ARM 6.6.5902(6)).
RESPONSE NO. 12: New Rule II (ARM 6.6.5902(6)) requires the insurer to apply the "in-network" cost-sharing amount to medically necessary specialty care services when the insurer does not have an in-network specialty care provider within a reasonable distance. This protection will result in considerable savings to the consumer. New Rule II (ARM 6.6.5902(8)) clarifies that even if the protections in New Rule II (ARM 6.6.5902(6)) are triggered, the insurer will still pay only the "allowable charge" for that service. The department does not have the authority to require an insurer to cover whatever charge the nonparticipating provider might bill. The terms of the insurance contract dictate that the insurer will only pay the usual, customary and reasonable charge (the allowable charge). The department may review the allowable charge for reasonableness. The department shares this commenter's concerns about balance-billed charges, but solving it is beyond the scope of these rules.
COMMENT NO. 13: One commenter expresses concern about the provisions in New Rule II (ARM 6.6.5902(9)(b)) that reference the "willingness of providers to contract with the insurer under reasonable terms and conditions" as a factor in determining the number of providers available in a particular area. This commenter states that many times providers have valid reasons that go beyond money for not contracting with insurers, such as objectionable contract language.
RESPONSE NO. 13: This provision is not intended to address contract disputes between two willing parties, but instead is intended to address issues that are easier to identify, such as a provider that routinely refuses to contract with any insurer.
COMMENT NO. 14: One commenter expresses concern about the fact that the list of provider types in New Rule II (ARM 6.6.5902(4)) does not expressly include federally qualified community health centers (FQHC) and Indian health services providers. In addition, this commenter points out the federal requirements placed on qualified health plan (QHP) issuers to include an adequate number of essential community providers (ECPs), including FQHCs and Indian health providers.
RESPONSE NO. 14: The department did not create a separate set of rules for QHP issuers. The department believes that network adequacy should be equally applied to all health insurance issuers in order to maintain a level playing field. New Rule II (ARM 6.6.5902(4)) specifically mentions primary care providers. FQHCs and Indian health providers are primary care providers. The department has specifically included all primary care providers who have also been identified as an ECP in the provider lists the department uses for determining adequacy, as well as in a separate list identifying only ECPs. In this way, the adequacy of ECPs is not subject to a lower 30% federal standard, but rather ECP adequacy is judged by the higher standard that these rules apply to provider adequacy in general.
COMMENT NO. 15: One commenter states New Rule II (ARM 6.6.5902(3)) places too much emphasis on the location of the provider. This commenter views that approach as "antiquated" and believes that other factors are more important, such as cost and quality. This commenter expresses concern for the use of factors such as travel times, wait times, and provider ratios and instead recommends telemedicine and value-based, low-cost networks that may be distant. This commenter stresses the need for flexibility so that insurers can develop low-cost innovative health plans.
RESPONSE NO.15: The department strives to maintain flexibility that will encourage innovation and keep costs down. However, that cannot be accomplished at the expense of ignoring reasonable access to necessary care. If a consumer is forced to travel 200 miles to seek primary health care, it is likely that health care visits will be skipped and necessary preventive care and monitoring of chronic health conditions will not occur. Lack of accessible treatment does not lead to cost savings in the long run. Accessibility of necessary health care services must include a consideration of travel time, geographic barriers, wait times and provider ratios. However, these rules also leave the door open for innovation and value-based network development, as specifically expressed in New Rule II (ARM 6.6.5902(12)).
COMMENT NO. 16: One commenter asked if these rules allow for tiered networks and narrow networks.
RESPONSE NO. 16: Yes, these rules allow for innovative, value-based networks. See response number 15 and the specific reference in New Rule II (ARM 6.6.5902(12)).
COMMENT NO. 17: One commenter expressed concern that the provisions of New Rule II (ARM 6.6.5902(11)), requiring that the participating health care provider accept the insurer's rate negotiated by the insurer as payment in full, may have the unintended consequence of prohibiting the health care provider from seeking payment for other liable third parties.
RESPONSE NO. 17: The department does not necessarily agree that New Rule II (ARM 6.6.5902(11)) results in that consequence, but the commenter suggests a simple language clarification, and the department has amended the rule according to the commenter's suggestion.
COMMENT NO. 18: One commenter requests that New Rule II (ARM 6.6.5902(4)(a)) list specific specialties and subspecialties as identified by the American Board of Medical Specialties and also as identified for QHP issuers in the network adequacy template required by the Center for Consumer Information and Insurance Oversight (CCIIO). This commenter stresses the need for subspecialty identification as well as specialty identification.
RESPONSE NO. 18: The department disagrees with the need for this level of specificity in the rule. In addition, very few "subspecialists" practice medicine in Montana.
COMMENT NO. 19: One commenter suggests that New Rule II (ARM 6.6.5902(5)), which discusses using provider ratios as a criteria, should specifically use the term "full-time equivalent" providers in order to account for providers who may only work part-time or may divide their time between different clinics.
RESPONSE NO. 19: The department agrees that identifying part-time providers may become necessary in some situations; however, it believes that the proposed language of the rule is broad enough to include that consideration when necessary.
COMMENT NO. 20: One commenter asks the department to clarify the meaning of "unreasonable delay" and "sufficient provider choice," as well as the meaning of all terms that use the words "reasonable," "reasonable distance," "reasonable proximity," and sufficiency and adequacy of provider choice.
RESPONSE NO. 20: The commenter is apparently seeking a rule where time and distance standards are mandated for every area of this large state—where "wait times" are defined by a specific number of days and "sufficiency of provider choice" is indicated by a specific number of provider types in each area where a health plan is sold. The department sought input on the content of these rules for many months from the largest major health insurers, from consumers and from all of the large provider groups in the state. The majority of the interested parties consulted did not want administrative rules that are restrictive and contain specific miles and time and distance standards; instead they preferred a rule that allows flexibility, while still protecting the complex health care needs of consumers.
Pursuant to 33-22-1706(4), MCA, the commissioner must determine the adequacy of networks. Every network adequacy review conducted to date has required the commissioner to exercise her discretion when in determining adequacy. No insurer meets the threshold percentage for all health care provider types that are measured. New Rule II (ARM 6.6.5902) sets forth a description of standards that the commissioner considers when exercising her discretion to determine the network adequacy. The use of terms like "reasonable" is necessary, if time and distance standards are to be avoided.
COMMENT NO. 21: One commenter asks again if the provisions of New Rule II (ARM 6.6.5902) apply to insurers who meet the requirements of 33-22-1706(4)(c), MCA.
RESPONSE NO. 21: See Response No. 4. New Rule II (ARM 6.6.5902) applies except for (3).
COMMENTS ON NEW RULE III (ARM 6.6.5903) FILING PROVIDER LISTS: Four comments were made in regard to this rule.
COMMENT NO. 22: Two commenters state that New Rule III (ARM 6.6.5903(2)(a)) requires the insurer to refile their network list if there is an overall decrease of providers, below 5%. One commenter requests that dental insurers be required to file a quarterly report. The second commenter (a health insurer) believes that the 5% trigger is too low.
RESPONSE NO. 22: Because the dental networks in Montana are small, the department understands this concern. However, most of the networks we review need to grow, so if losses occur, the lists should be re-reviewed. At this time, the department will keep the 5% trigger.
COMMENT NO. 23: One commenter suggests that May 1, 2015, may not be enough time to prepare the network lists for filing. Another commenter requests clarification as to whether the May filing is for the current year or the next plan year. Another commenter requests that these network lists be filed in conjunction with the QHP filings.
RESPONSE NO. 23: This filing date for network lists is largely dictated by the federal filing deadline for QHPs. That date is set forth in the commissioner's filing instructions memorandum and in the federal letter to issuers. Insurers were already advised in March 2015 that they needed to file all their forms, rates, and network lists by May 15, 2015. Because it now appears that the filing dates may change every year, the department has amended the rule to make that date flexible. The filing in May is for the 2016 plan year. That information is contained in the commissioner's filing instructions that are issued every spring. The network lists are reviewed as part of a QHP filing, and also in other types of annual filings, which are required to occur at the same time as QHP filings. This is clarified in the commissioner's filing instructions.
COMMENT NO. 24: One commenter suggests that these rules should not require annual provider lists.
RESPONSE NO. 24: Currently federal law requires annual review of network lists for most types of health plans. In addition, provider lists change considerably from year to year and an annual review at a minimum is necessary to protect consumers. Providers move in and out of the state frequently. Even the master list of providers changes considerably from year to year.
COMMENT NO. 25: One commenter requests that the department add the word "annual" before the word "audit" in New Rule III (ARM 6.6.5903(3)).
RESPONSE NO. 25: The department disagrees with this addition. Some networks may not require even an annual audit. Other networks may require auditing more frequently.
COMMENTS TO NEW RULE IV (ARM 6.6.5905) CHOICE OF PRIMARY CARE PHYSICIAN: Two comments were made in regard to this rule.
COMMENT NO. 26: One commenter asks if any PPO plans actually require a primary care physician (PCP) designation, or if only HMO plans require that.
RESPONSE NO. 26: Every year the department sees new types of innovative benefit plans. Some health plans already require a PCP designation, although do not actually require referrals. Many health plans are incorporating a patient-centered medical home program that may require a PCP designation. The lines between HMO and other plans are already very blurred and the department expects them to become more so. Therefore, this rule is necessary to protect consumers.
COMMENT NO. 27: One commenter requests that the phrase "access" be added before the term "the following" in New Rule IV (ARM 6.6.5905) so that an insurer may refer to an online directory instead of providing a written list.
RESPONSE NO. 27: The rule and the federal law already require an online directory. The department will amend the rule to allow the information to be delivered online, as long as it is delivered in a manner that clearly identifies PCPs, located in specific cities and towns, and that are accepting new patients.
NEW RULE V (ARM 6.6.5906) REQUIRED DISCLOSURES REGARDING NETWORK ADEQUACY: Six comments were made in regard to this rule.
COMMENT NO. 28: One commenter requests clarification on the geographic scope of the out-of-state provider directory and asks if it is limited to neighboring states.
RESPONSE NO. 28: Out-of-state provider directories for health insurers generally include many different geographic areas, not just those states that are neighboring. Medical needs of patients often take them to specialists located several states away. Dental insurer networks are different. However, the rule is written broadly and is not restrictive as to the geographic location of the providers. Therefore, dental insurers may provide the out-of-state directory that they have available and that is relevant to the dental plans that they are marketing in Montana.
COMMENT NO. 29: One commenter requested that insurers be required to prominently notify consumers of the deficiencies of their networks if the number of certain types of providers is deficient.
RESPONSE NO. 29: The department declines to impose that requirement. If the network is deficient in certain types of providers, the department is working with the insurer to correct that deficiency. Also, consumers are able to search provider directories for certain provider types in their area.
COMMENT NO. 30: One commenter requests that the New Rule V (ARM 6.6.5906(4)(b)) regarding access to out-of-network emergency room services "if an in-network emergency room is not reasonably available" include the circumstance where the patient did not have control over the choice of emergency room; for example, the patient was taken to an emergency room by ambulance.
RESPONSE NO. 30: Section 33-22-1705, MCA, states that if a person receives emergency care and "cannot reasonably reach a preferred provider" that service will be paid as if it were "in-network." In this rule, the department is placing the language of the statute into a consumer disclosure document. However, the department is amending the rule to reflect the exact language of the statute. The language, "cannot reasonably reach" would cover the circumstance where a patient was transported in an ambulance to an out-of-network emergency room.
COMMENT NO. 31: One commenter suggests that the timeframe for the notice of termination for a provider contract be 90 days instead of 60 days. The commenter states that Medicare Advantage requires 90 days. Also, this commenter wants to ensure that if an insurer terminates a provider contract, those notices should be sent to the provider's physical location address, not the address of the provider's billing company.
RESPONSE NO. 31: The department does not agree with the need to conform to Medicare Advantage rules because it is a different product that is not regulated by the states and not subject to this rule. The provider contract should specify the addresses where notices and other communications should be sent. Health care providers should ensure that the address in the contract is the best location to reach the provider.
COMMENT NO. 32: One commenter requests that the term "monthly" in New Rule V (ARM 6.6.5906(1)) be changed to "within 30 days of the insurer's receipt of information from the provider."
RESPONSE NO. 32: It appears that the requested change would require the insurer to make continuous changes to their directories instead of just making all changes at the same time every month. The department is concerned that the suggested new language makes this requirement more burdensome on other insurers.
COMMENT NO. 33: One commenter states that (2) through (5) in this rule are already contained in the Outline of Coverage requirements in 33-22-244 and 33-22-521, MCA. The commenter then states that the description of allowable charge is already contained in the contract and should be deleted and the continuity of care provisions should be included only in the policy because of its length. The commenter does not want to add anything to the disclosure that is already contained in the contract, specifically the right to continuity of care and the right to have out-of-network services covered as in-network.
This commenter suggests referencing the state definition of emergency services in New Rule V (ARM 6.6.5906) instead of the federal definition.
This commenter also suggests changing the language in New Rule V (ARM 6.6.5906(6)(a)) from "ensure" to "shall make a good faith effort" to notify covered persons when a provider leaves the network. The commenter also wants to change "two years" to one year in (6)(a)(i) and requested clarification on the term "area that the facility serves" in (6)(a)(ii).
This commenter requests that New Rule V (ARM 6.6.5906(7)) be amended to require only a reference to the language in the contract and that the "list of available in-network providers who are available to see new patients," be reduced to a reference to the existing provider directory.
RESPONSE NO. 33: The department has amended the language in New Rule V (ARM 6.6.5906) to remove any duplication between New Rule V (ARM 6.6.5906) and the provisions of 33-22-244 and 33-22-521, MCA. The notice concerning "the right to continuity of care" was amended by allowing a reference to the section of the policy that contains the language so that the entire provision does not need to be placed in the notice.
The notice concerning out-of-network emergency care is an important right. If the information is buried in policy language, most consumers will not see it. The current outline of coverage statutes contain language that is no longer relevant or necessary or is duplicated in the Summary of Benefits and Coverage (see the Commissioner's Advisory Memorandum on Federal and State Consumer Disclosures dated July 6, 2012). Adding important information about emergency services is not a burden to insurers, and it is a large benefit to consumers.
With regard to the definition emergency services, the state definition is preempted by the federal definition.
Regarding the notice to consumers concerning providers who leave the network, the department believes that the rule provides enough flexibility to imply a good faith effort. It is not appropriate to change two years to one year because many consumers do not see their doctors every year.
The department has also amended New Rule V (ARM 6.6.5906(7)) to accept some of the language suggested by this commenter, such as defining the facility area as the city or town where the facility is located.
COMMENTS TO NEW RULE VI (ARM 6.6.5907) GEOGRAPHIC SERVICES AREAS: One comment was made in regard to this rule.
COMMENT NO. 34: One commenter requested that the rule be changed to strike the term "only" and replace the term "residents of" with "individuals who live, work or reside in."
RESPONSE NO. 34: The department has amended the rule to make this change, except that it did not say both "reside" and "live" because the terms are duplicative.
COMMENTS TO NEW RULE VII (ARM 6.6.5908) CONTINUITY OF CARE: Five comments were made in regard to this rule.
COMMENT NO. 35: This commenter strongly supports the adoption of New Rule VII (ARM 6.6.5908) because it allows patients to continue critical treatment with the same provider when necessary at no additional cost to the patient.
RESPONSE NO. 35: The department agrees.
COMMENT NO. 36: One commenter states that all patients, especially those with chronic conditions, frequently choose their network based on the provider network available to them during the plan selection period. This commenter believes that if a plan terminates a physician from its network without cause, all members should retain access to that physician until the next benefit year when the subscriber has an ability to select a new plan with a provider in the network that meets their needs.
RESPONSE NO. 36: The department believes that this rule balances the need for insurers and providers to manage their businesses and still protect the consumers that are most vulnerable. Opening this protection up to all the insureds in the plan does not achieve that balance.
COMMENT NO. 37: One commenter requests that the commissioner delete "chronic condition" from the list in (3)(c), which states that special circumstances do not include chronic conditions, primary or preventive care. This commenter asserts that excluding "chronic condition" may harm patients if it interrupts continuous care, causing them to suffer unnecessarily.
RESPONSE NO. 37: A special circumstance is defined in part, as an "acute" condition. Upon further consideration, the department agrees that acute vs. chronic, and even "special circumstance" are not the best terms and therefore has made amendments to the rule.
COMMENT NO. 38: One commenter requests that the insured should be able to authorize ("assign") the physician to appeal a decision by the insurer to deny the extension of ongoing treatment at the in-network rate on behalf of the insured under the appeal rights outlined in the contract. The insured will need assistance from the treating physician to complete this appeal process. If the rule is not amended to allow such an assignment, the commenter requests adding additional language that would permit the insured to involve the provider directly.
RESPONSE NO. 38: The physician is not a party to the insurance contract, so the insured must file the appeal. However, once the insured authorizes it, the treating physician may be involved to the extent necessary to make all necessary medical arguments and responses. That is generally the case with most types of appeals. The treating physician usually is an active participant, ready and able to discuss the issues with the insurer's medical director. Therefore, it is not necessary to amend the rule.
COMMENT NO. 39: One commenter recommends limiting any continuity of care period to 90 days, except for pregnancy because that is what is required by current accreditation standards. This commenter goes on to argue that if the rule uses "until the next renewal period," inconsistencies could result in the length of time an individual might have a continuation period—between one month and 11 months.
RESPONSE NO. 39: The department has amended the language to account for the possible inequity relating to the "one month vs. eleven months" comment. However, the department will not limit the continuity of care period to 90 days only. Insurers are already offering a "continuity of care" period for 90 days because it is required by health plan accreditation standards insurers must follow. Ninety days is not enough time in every situation that may arise, as consumers have complained to the department indicating that 90 days is not enough.
COMMENT NO. 40: One commenter questions the department's authority to adopt the rule on continuity of care.
RESPONSE NO. 40: Nearly all of the health plans sold in in 2014 and 2015 are PPO plans that rely heavily on a provider network to deliver the consumer protections required by state and federal law. In fact, many of those protections that limit consumer cost-sharing apply only when the covered person seeks care "in-network." In addition, the cost-sharing differences between in- and out-of-network in these plans has doubled, tripled, or even quadrupled compared to what existed prior to 2014. Also, networks are becoming narrower, "value-based," and more selective. The commissioner has a duty that permeates all parts of Title 33, MCA, to protect insurance consumers. See 33-1-311, MCA. In addition, the commissioner may not approve any policy that "misrepresents" benefits to consumers. See 33-1-502, MCA.
In today's insurance market, consumers may choose plans according to whether or not their physician is included in the insurer's network. This is particularly true if the consumer has an active illness or pregnancy that requires an ongoing course of treatment. When a treating health care provider is terminated from an insurer's network, the covered person has lost a significant part of the value of the health plan they chose. Therefore, in order to protect consumers and give them the benefit of what they contracted for, the rule seeks to lessen the impact of what could be identified as a misrepresentation of the benefits provided under the plan. A limited continuity of care provision is much less drastic than other alternatives, such as limiting network changes to once in a plan year.
COMMENT NO. 41: One commenter stated that the department should wait to adopt these rules until the NAIC Network Adequacy model act is fully amended and adopted.
RESPONSE NO. 41: This department is closely following the activity on the amended model law adoption and appreciates the efforts undertaken in that process. However, the Montana Legislature has already adopted a different statutory framework that is reflected in the amendments to 33-22-1706, MCA, and the percentages discussed in the proposed rule. The proposed rule incorporates small parts of the NAIC model language where possible, but adopting the Amended NAIC model act would require a legislative change. The administrative rules could be changed if the underlying statutes were changed. The next legislative session is in 2017. In the meantime, the department must regulate network adequacy in Montana in a way that meets the requirement of 33-22-1706, MCA, and also meets federal requirements of reasonable access for insurance consumers.
COMMENT NO. 42: One commenter suggests that the new rules exceed the scope of the statutes that implement 33-22-1706, 33-22-244, and 33-22-521, MCA, and insert additional requirements not envisioned by the legislature.
RESPONSE NO. 42: The department disagrees. Section 33-22-1706(4), MCA, gives the commissioner the authority to determine network adequacy. The commissioner is charged with the duty of protecting the insurance consumers in this state (33-1-311, MCA). The detail contained in these rules describes to the public how the commissioner will exercise her discretion in this matter. The financial consequence of receiving health care from an out-of-network physician is significant, and consumers must be protected from that if possible. Therefore, adequate consumer disclosures are imperative.
Calculating percentages of provider types is a complex activity with unpredictable outcomes. An insurer may have 85% of the physicians in the western part of the state, but only 50% in the eastern part of the state. The geographic distances in this state are large. In addition, certain provider types may participate in the network in the consumer's location at the time the policy is purchased, but then leave the network three months later, leaving the consumer with no local options for care during the remaining nine months of the policy term. These administrative rules provide insurers, consumers, and health care providers with detailed information regarding how the commissioner will determine networks to be adequate, while still protecting consumers by ensuring adequate access.
COMMENT NO. 43: One commenter requests an effective date of January 1, 2017, because the rules would require changes to outline of coverage.
RESPONSE NO. 43: The department does not agree that a 2017 effective date is necessary. The department will be reviewing network adequacy for 2016 products during the summer of 2015. Many of these rules describe how that process is conducted and are needed now. The department agrees to apply a January 1, 2016, effective date to New Rule V (ARM 6.6.5906) regarding disclosures and New VII (ARM 6.6.5908) regarding continuity of care. Insurers have more than six months to implement any changes to forms or process to implement those changes. New Rule V (ARM 6.6.5906) has been substantially amended and the additional information in the outline of coverage is minimal.
COMMENT NO. 44: One commenter has requested that "various" terms be further defined, but does not indicate which terms.
RESPONSE NO. 44: Without further identification of terms, the department cannot respond to this comment. However, throughout the responses above, the department has responded to comments about the definition of "reasonable" and explained why that term is used. The general definition of adequacy is found in New Rule II(3) (ARM 6.6.5902(3)).
COMMENT NO. 45: One commenter asserts that these rules should not apply to insurers who meet the requirements in 33-22-1706(4)(c), MCA, or the 25% differential requirements in 33-22-1706(4)(b), MCA.
RESPONSE NO. 45: The department disagrees. These rules set forth the filing and review process for determining percentages and adequacy and those rules must apply to all insurers. In addition, these rules ensure that consumers are provided with adequate disclosure so that they can choose a network that meets their needs. These rules provide necessary protections when networks change or are insufficient in certain geographic locations. Also, see the responses to comment numbers 7, 40, and 42.
COMMENT NO. 46: One commenter requests that the commissioner reconsider the appropriateness of "narrow" networks in Montana because of the small population in the state and the limited supply of health care providers.
RESPONSE NO. 46: Insurers continually request the flexibility that will allow them to innovate "value-based" networks in order to keep premiums lower. Access to health care necessarily includes affordability. Therefore, the commissioner must keep the door open to innovative network designs that also provide adequate access to medically necessary health care.
COMMENT NO. 47: One commenter asks if a lack of obstetricians and gynecologists in a network may lead to gender discrimination, a violation of 49-2-309, MCA.
RESPONSE NO. 47: A discrimination determination under 49-2-309, MCA, would require a case-by-case review of specific facts and is beyond the scope of these rules.
5. The effective date of New Rules I (6.6.5901), II (6.6.5902), III (6.6.5903), IV (6.6.5905), and VI (6.6.5907) will be May 15, 2015, which is the day after publication of this adoption notice. The effective date of New Rules V (ARM 6.6.5906) and VII (ARM 6.6.5908) will be January 1, 2016. New Rules V (ARM 6.6.5906) and VII (ARM 6.6.5908) will be effective for policies issued or renewed on or after January 1, 2016.
/s/Nick Mazanec /s/Christina L. Goe
Nick Mazanec Christina L. Goe
Rule Reviewer General Counsel
Certified to the Secretary of State May 4, 2015.