(1) (a) A carrier shall not make an adverse determination, in whole or in part, with respect to a health coverage plan unless the determination is made pursuant to this section.
(b) For the purposes of this section: (I) "Adverse determination" means:
A denial of a preauthorization for a covered benefit;
A denial of a request for benefits for an individual on the ground that the treatmentor covered benefit is not medically necessary, appropriate, effective, or efficient or is not provided in or at the appropriate health care setting or level of care;
A rescission or cancellation of coverage under a health coverage plan that is notattributable to failure to pay premiums and that is applied retroactively;
A denial of a request for benefits on the ground that the treatment or service isexperimental or investigational; or
A denial of coverage to an individual based on an initial eligibility determination forall individual sickness and accident insurance policies issued by an entity subject to part 2 of this article, and all individual health care or indemnity contracts issued by an entity subject to part 3 or 4 of this article, except supplemental policies covering a specified disease or other limited benefit.
"Health coverage plan" does not include insurance arising out of the "Workers' Compensation Act of Colorado", articles 40 to 47 of title 8, C.R.S., or other similar law, automobile medical payment insurance, or property and casualty insurance.
"Individual" means a person and includes the designated representative of an individual.
(c) If a carrier denies a benefit because the treatment is an excluded benefit and the claimant presents evidence from a medical professional licensed pursuant to the "Colorado Medical Practice Act", article 240 of title 12, or, for dental plans only, a dentist licensed pursuant to the "Dental Practice Act", article 220 of title 12, acting within his or her scope of practice, that there is a reasonable medical basis that the contractual exclusion does not apply to the denied benefit, such evidence establishes that the benefit denial is subject to the appeals process pursuant to this section and section 10-16-113.5.
Following a denial of a request for benefits or an adverse determination by the carrier, the carrier shall notify the individual in writing. The commissioner shall adopt rules specifying the content of the notification and the deadlines for making the notification, and the carrier shall notify the individual in accordance with those rules.
(a) (I) All denials of requests for reimbursement for medical treatment, standing referrals, or adverse determinations made on the ground that a treatment or covered benefit is not medically necessary, appropriate, effective, or efficient, is not delivered in the appropriate setting or at the appropriate level of care, or is experimental or investigational, must include:
An explanation of the specific medical basis for the denial;
The specific reasons for the denial or adverse determination;
Reference to the specific health coverage plan provisions on which the determinationis based;
A description of the carrier's review procedures and the time limits applicable tosuch procedures and a statement that the individual has the right to appeal the decision; and
A description of any additional material or information necessary, if any, for theindividual to perfect the request for benefits and an explanation of why the material or information is necessary.
(II) In the case of an adverse determination by a carrier:
If an internal rule, guideline, protocol, or other similar criterion was relied upon inmaking the adverse determination, the carrier shall furnish the individual with either the specific rule, guideline, protocol, or other similar criterion, or a statement that the rule, guideline, protocol, or other criterion was relied upon in making the adverse determination and that a copy of the rule, guideline, protocol, or other criterion will be provided free of charge to the individual upon request; or
If the adverse determination is based on a medical necessity or experimental treatment or similar exclusion or limit, the carrier shall furnish the individual with either an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the individual's medical circumstances, or a statement that the explanation will be provided free of charge upon request.
(III) In the event of an adverse determination by a carrier concerning a request involving urgent care, a carrier:
Shall provide to the individual a description of the expedited review process applicable to the request;
May communicate the other information required pursuant to subparagraph (I) ofthis paragraph (a) to the individual orally within the time frame outlined in 29 CFR 2560.503-1 (f)(2)(i) so long as a written or electronic copy of the information is furnished to the individual no later than three days after the oral notification; and
May waive the deadlines specified in sub-subparagraph (B) of this subparagraph(III) and in subparagraph (IV) of this paragraph (a) to permit the individual to pursue an expedited external review of the urgent care claim under section 10-16-113.5.
(IV) A carrier shall notify an individual of a benefit determination, whether adverse or not, with respect to a request involving urgent care as soon as possible, taking into account the medical exigencies, but not later than seventy-two hours after the receipt of the request by the carrier, unless the individual fails to provide sufficient information to determine whether, or to what extent, benefits are covered or payable under the coverage.
(b) (I) A group health coverage plan issued by a carrier subject to part 2, 3, or 4 of this article must specify that an appeal of any adverse determination includes a two-level internal review of the decision, followed by the right of the individual to request an external review if allowed under section 10-16-113.5. The individual has the option of choosing whether to utilize the voluntary second-level internal appeal process.
The carrier shall notify the individual of his or her right to appeal a denial of benefitsthrough a two-level internal review process and that the second level of internal review may be utilized at the individual's option.
(A) A physician shall evaluate the first-level appeal and shall consult with an appropriate clinical peer or peers, unless the reviewing physician is a clinical peer; except that, in the case of dental care, a dentist may evaluate the first-level appeal, and the reviewing dentist shall consult with an appropriate clinical peer or peers, unless the reviewing dentist is a clinical peer. A physician, dentist, or clinical peer who was involved in the initial adverse determination shall not evaluate or be consulted regarding the first-level appeal. A person who was previously involved with the denial may answer questions.
(B) This subparagraph (III) does not apply to an adverse determination described in subsubparagraph (C) or (E) of subparagraph (I) of paragraph (b) of subsection (1) of this section.
(IV) (A) The second-level internal review of an appeal from the denial of a request for covered benefits pursuant to subparagraph (I) of this paragraph (b) shall be reviewed by a health care professional who has appropriate expertise, who was not previously involved in the appeal, and who does not have a direct financial interest in the appeal or outcome of the review.
(B) The carrier shall allow the individual to be present for the second-level internal review, either in person or by telephone conference. The individual may bring counsel, advocates, and health care professionals to the review, prepare in advance for the review, and present materials to the health care professional prior to the review and at the time of the review. Upon request, the carrier and the individual shall provide copies of the materials they intend to present at the review to the other party at least five days prior to the review. If new information is developed after the five-day deadline, the material may be presented when practicable. The carrier shall notify the individual that the carrier will make an audio or video recording of the review unless neither the individual nor the carrier wants the recording made. If a recording is made, the carrier shall make the recording available to the individual. If there is an external review, the carrier shall include the audio or video recording in the material provided by the carrier to the reviewing entity if requested by either party.
(c) In addition to the requirements specified in subsections (3)(a) and (3)(b) of this section, unless a denial is based on nonpayment of premiums, a denial of reimbursement for services for the prevention of, screening for, or treatment of behavioral, mental health, and substance use disorders under a health benefit plan must include the following, in plain language:
A statement explaining that covered persons are protected under the MHPAEA, which provides that limitations placed on access to mental health and substance use disorder benefits may be no greater than any limitations placed on access to medical and surgical benefits;
A statement providing information about contacting the division or the office of theombudsman for behavioral health access to care established pursuant to part 3 of article 80 of title 27 if the covered person believes his or her rights under the MHPAEA have been violated; and
A statement specifying that covered persons are entitled, upon request to the carrierand free of charge, to a copy of the medical necessity criteria for any behavioral, mental health, and substance use disorder benefit.
(4) (a) Each carrier issuing individual health coverage plans shall notify the individual of his or her right to appeal an adverse determination through a single level of internal review.
(b) (I) A physician shall evaluate the appeal and consult with an appropriate clinical peer or peers unless the reviewing physician is a clinical peer; except that, in the case of dental care, a dentist may evaluate the appeal, and the reviewing dentist shall consult with an appropriate clinical peer or peers. A physician, dentist, or clinical peer who was involved in the initial adverse determination shall not evaluate or be consulted regarding the appeal. A person who was previously involved with the denial may answer questions.
(II) This paragraph (b) does not apply to an adverse determination described in subsubparagraph (C) or (E) of subparagraph (I) of paragraph (b) of subsection (1) of this section.
(c) The carrier shall allow the individual to be present for the appeal. The individual may bring counsel, advocates, and health care professionals to the review, prepare in advance for the review, and present materials to the physician or dentist prior to the review and at the time of the review. Upon request, the carrier and the individual shall provide copies of the materials they intend to present at the review to the other party at least five days prior to the review. If new information is developed after the five-day deadline, the material may be presented when practicable. The carrier shall notify the individual that the carrier will make an audio or video recording of the review unless neither the individual nor the carrier wants the recording made. If a recording is made, the carrier shall make the recording available to the individual. If there is an external review, the carrier shall include the audio or video recording in the material provided by the carrier to the reviewing entity if requested by either party.
All written adverse determinations, except an adverse determination described in sub-subparagraph (C) or (E) of subparagraph (I) of paragraph (b) of subsection (1) of this section, must be signed by a licensed physician familiar with standards of care in Colorado; except that, in the case of written adverse determinations relating to dental care, a licensed dentist familiar with standards of care in Colorado may sign the written adverse determination.
An individual's health care provider may communicate with the physician or dentistinvolved in the initial decision to make an adverse determination.
Nothing in this section precludes or denies the right of an individual to seek anyother remedy or relief.
In the case of the failure of a carrier to adhere to the requirements of this section withrespect to a coverage request, the individual may be deemed to have exhausted the internal claims and appeals process of this section if the commissioner determines that the carrier did not substantially comply with the requirements of this section or that any error the carrier committed was not de minimis, as defined by the commissioner by rule, in which case the individual may initiate an external review under section 10-16-113.5.
Carriers shall maintain records of all requests and notices associated with the internalclaims and appeals process for six years and shall make such records available upon request for examination by the individual, the division of insurance, or the federal government.
The commissioner may promulgate rules as necessary for the implementation andadministration of this section.
Source: L. 97: Entire section added, p. 1334, § 1, effective July 1. L. 99: (3) amended, p. 320, § 4, effective July 1; (3) amended, p. 1047, § 1, effective June 1, 2000. L. 2003: (1) to (4), (6), and (7) amended, p. 1384, § 1, effective January 1, 2004. L. 2004: (3)(b)(I) amended, p. 988, § 7, effective August 4. L. 2005: (1)(c), (3)(b)(IV), (3)(b)(V), and (3)(b)(VI) added and (3)(b)(I) amended, p. 803, §§ 1, 2, effective January 1, 2006. L. 2008: (3)(b)(V), (4), and (5) amended, p. 83, § 1, effective August 5. L. 2013: Entire section amended, (HB 13-1266), ch. 217, p. 956, § 19, effective May 13. L. 2014: (1)(c) amended, (HB 14-1277), ch. 363, p. 1735, § 37, effective July 1. L. 2019: (3)(c) added, (HB 19-1269), ch. 195, p. 2128, § 6, effective May 16; (1)(c) amended, (HB 19-1172), ch. 136, p. 1654, § 44, effective October 1.
Editor's note: Amendments to subsection (3) by House Bill 99-1306 and Senate Bill 99141 were harmonized.
Cross references: (1) For the legislative declaration contained in the 1999 act amending subsection (3), see section 1 of chapter 111, Session Laws of Colorado 1999.
(2) For the short title ("Behavioral Health Care Coverage Modernization Act") in HB 191269, see section 1 of chapter 195, Session Laws of Colorado 2019.