Welcome to The Rivkind Law Firm’s Blog! New website, new blog! You can also find us on Facebook! We’re hoping you tune in regularly to check what’s happening in this ever changing field!
First matter of business. On September 20, 2016, The Commissioner finally adopted the new “standard” appeal regulations after numerous yearly delays. The old adage “watch out what you wish for” may be applicable. The whole purpose is to simplify, but more likely than not, it will be a mess! The plan has an operative date of April 17, 2017, so new plans can be drafted and the new forms approved! The new regulation actually throws out the original and makes a new section - N.J.A.C. 11:3-4.7B. The Commissioner took out an original provision in the proposal that actually penalized insurers when they ignored appeals. Typical!
As of this moment the ultimate standard forms are still up in the air, although a draft has been circulated. The current form is overly onerous, insisting on each “issue” being specified by using a key of reasons and has separate forms for pre-service and post service appeals.
The key provisions and how to handle them:
1. Only one level appeal allowed for each “issue” prior to arbitration. Medical necessity is a different “issue” than payment.
- The law is confusing as adopted, when in doubt – do another appeal!
- List all possible issues, use extra pages and the like. Insurers will not like your additions, but when it goes to an arbitrator they will understand the limitations of the form. Make sure all issues are appealed so they are not considered waived for arbitration purposes.
- Keep careful records of the basis of denial. Often services are denied with a simple general denial. In arbitration, we see reviews challenging causation. Clear records will show you did not waive the right to challenge it.
2. Be sure to include everything you can in your appeals, because a worrisome comment by the Commissioner gives insurers a basis to argue that additional information not be allowed. The Commissioner stated:
Consistent with the foregoing principles, the Department believes that all the relevant information about a dispute should be produced as part of the internal appeal process and only under extraordinary circumstances should additional information be presented as part of the arbitration. However, the Department believes that the arbitration process itself is the best place for such determinations to be made. Claimants and respondents should object to the submission of information additional to that contained in the record of the internal appeal and absent extraordinary circumstances, the DRP should not admit such information.
3. Two types of internal appeals:
A. Pre-service: Appeals of DPR and/or precertification denials or modifications prior to the performance or issuance of the service/DME; and
B. Post-service: Appeals subsequent to the performance or issuance of the services.
- This can be complicated when an insurer untimely denies services, making those services outside the 3-day window deemed approved, thus not part of a medical necessity “pre-service appeal”. I specifically objected to it and in the adoption the Commissioner expressly responded stating to do a pre-service appeal for the dates not deemed approved and on the deemed approved services solely send the bill then appeal on the basis they weren’t paid as a post service appeal. Again, I would make sure to do a post service appeal for the denied service dates as well. Following the Commissioner could be a dangerous practice.
- What I would do: appeal the denial for all dates and include a specific failure to pay the services that are deemed approved because they were not denied within 3 days in a Pre-service appeal, then do nonpayment on a post appeal. Makes no sense at all, but better safe than sorry. Why include these dates for a medical necessity review? Suppose you lose your fax proof? Suppose they did send a denial within time that your staff missed it?
4. Pre-service appeals must be submitted no later than 30 days after receipt of denial or modification. Don’t wait. Things get lost and forgotten.
5. Post-service appeal shall be submitted at least 45 days prior to initiating alternate dispute resolution pursuant to N.J.A.C. 11:3-5 or filing an action in Superior Court.
- Deal with them right away. If you send them out right when each bill is denied, then you will never get stuck running close to a statute of limitations to file arbitration. More importantly, with so many $15,000.00 policies out there, the longer you wait, the less likely money will actually be left on the policy to pay you!!
6. Insurers have 14 days after receipt of the appeal form to respond to “preservice appeals” and 30 days after receipt of the appeal form to respond to “post-service appeals.” I doubt the new system will in any manner have the insurers that never respond start responding.
7. The Commissioner stated that if you miss an appeal, you can file another precertification request. This of course shows that the Commissioner does not understand medical practice. Appeals are within 30 days, so a treating physician who missed an appeal would already be on his way on the next period’s precertification request. If the services are one time, like a diagnostic test, missing an appeal date and filing another request will delay care for at least a month and 6 days!! So much for not interrupting care!
8. Uncertainty that the regulations are really what they mean. One commenter requested confirmation from the Department that in accordance with N.J.A.C. 11:3-4.7B(a), DPR Plans may also contain additional requirements to assist insurers in obtaining information needed to review and process appeals efficiently as long as they are not in conflict with the Department’s rule. The commenter spoke about including the filing of an appeal within 180 days of an adverse decision and at least 45 days prior to initiating arbitration and submission of a fully completed appeals form with all substantiating documentation. The Commissioner responded:
The Department does not agree with the commenter that the additional language is necessary. The language of the rule already states at N.J.A.C. 11:3-4.7B(a) that the internal appeal procedure shall meet the requirements of this rule, which permits insurers to include other provisions in their internal appeal procedure that do not conflict with the requirements of this rule.
As such it is unclear that 45 days before filing arbitration is really what the plans will include as they may throw in different provisions stating that they must be filed within a certain period after the determination. Thus we will not have a standard procedure whatsoever but again, tons of different provisions for each insurer.
Stay tuned! In the next month you’ll see the new form and new plans coming out. Do not wait until April to get your office ready. Also be careful as some plans may change before the actual date, it has happened before!
- Shari