(a) The following definitions shall apply with respect to this section:
(1) “Adverse determination” means a benefit denial, reduction or termination, a denial of certification, or both.
(2) “Benefit denial” means the denial, in whole or in part, of payment or reimbursement for health-care services rendered or health-care supplies provided to any person claiming benefits under an insurance policy delivered or issued for delivery in Delaware.
(3) “Carrier” in this section shall have the same meaning applied to it at § 3343(a) of this title.
(4) “Covered person” means a person who claims to be entitled to receive benefits from a carrier.
(5) “Denial of certification” means a determination that an admission or continued stay, or course of treatment, or other covered health-care service does not satisfy the insurance policy's clinical requirements for appropriateness, necessity, health-care setting and/or level of care.
(6) “Emergency review” means an IRP review involving an imminent, emergent or serious threat to the health of the claimant.
(7) “Health plan” shall have the same meaning as “health benefit plan” as defined at § 3343(a)(2) of this title.
(8) “Insurance policy” shall have the meaning assigned to it at § 2702 of this title, and shall also include all health plans and policies for the payment for, provision of or reimbursement for medical services, supplies or both issued by insurers, health services corporations or managed care organizations.
(9) “Internal review process” or “IRP” means the procedure for an internal review of an adverse determination pursuant to subsection (b) of this section.
(b) Every carrier shall establish and maintain an IRP approved by the Insurance Commissioner.
(c) The Insurance Commissioner shall approve those IRPs that meet the following minimum criteria:
(1) Written notice. — The IRP must provide for written notice of the internal review procedure to covered persons, annually and following any adverse determination.
(2) Requests for review of adverse determinations. — The IRP must permit covered persons to submit requests for internal reviews of adverse determinations (“grievances”) orally or in writing. Grievances must be submitted within 30 days of receipt by the covered person of written notice of an adverse determination. The carrier must provide written forms for submission of grievances. Upon receipt of an oral grievance or a written grievance that does not contain sufficient information, the carrier must immediately provide the covered person with a written form upon which to make his or her grievance, and the carrier may require that an oral or insufficient written grievance be submitted in writing within 10 days of the covered person's receipt of the written form. A grievance shall be considered as received by the carrier when a written form, which the covered person purports to be complete, is received by the carrier.
(3) Instructions on written form. — The written form referred to in paragraph (c)(2) of this section shall inform the covered person of the information necessary to pursue an internal grievance of an adverse decision.
(4) Prompt response to written grievances. — The IRP shall provide that within 5 business days of receipt of a written grievance, the carrier shall provide written acknowledgement of the grievance, including the name, address and telephone number of the individual or department designated by the carrier to respond to the grievance.
(5) Speedy review of grievances. — That IRP shall require that all grievances be decided in an expeditious manner, and in any event, no more than:
a. 72 hours after the receipt of all necessary information relating to an emergency review;
b. 30 days after the receipt of all necessary information in the case of requests for referrals or determinations concerning whether a requested benefit is covered pursuant to the contract; and
c. 45 days after the receipt of all necessary information in all other instances.
A grievance shall be considered decided when the carrier has made its final decision on the subject of the review and has deposited written notice of that decision in the mail, in accordance with paragraphs (c)(7) and (8) of this section.
(6) Assignment of qualified personnel. — The IRP shall provide that when the subject of the grievance relates to medical or clinical matters, including medical necessity and appropriateness of treatment, the health carrier shall assign licensed, certified or registered health care personnel with expertise in the field implicated by the request for review to conduct the review. The review shall be conducted by personnel other than those who made the initial adverse determination.
(7) Written notice of decisions. — The IRP shall provide that within 5 days after a grievance is decided in the manner described above, the insured shall be provided with written notice of the disposition of that grievance. In cases where the grievance has been decided in a manner that does not pay the claim in its entirety, the carrier shall provide the insured with a letter fully stating the reasons for the disposition (including specific policy language relied upon and any other documents relied upon) and the clinical rationale for the determination in cases where the determination has a clinical basis. The carrier's written notice shall also inform the insured of the appropriate manner for the insured to pursue an external review of the carrier's decision. Finally, the carrier's written notice shall inform the insured of the mediation services offered by the Department of Insurance, but shall clearly inform the insured in layman's terms that mediation does not change the deadlines imposed by § 6416 of this title or this section. The Department of Insurance shall inform any person with rights under § 6416 of this title or this section of those rights.
(8) Manner of notice of decisions. — Written notice of the review decision shall be deposited in the mail, addressed to the last known address of the covered person. In the case of emergency reviews, the carrier shall also make reasonable efforts to notify the covered person immediately following the determination of the grievance and the written notice of determination shall be deposited in the mail, addressed to the last known address of the claimant, within 48 hours after the receipt of all information necessary to complete the review. For cases involving a denial, reduction or termination of benefits where the external review may be conducted pursuant to this section, written notice shall be mailed requesting delivery confirmation by the United State Postal Service.
(d) Every carrier shall submit a report on its internal review process on an annual basis to the Insurance Commissioner in accordance with regulations established by the Department.
(e) With respect to adverse determinations that are subject to review by the Department of Insurance pursuant to § 6416(f) of this title, the Insurance Commissioner shall develop regulations providing for arbitration of such adverse determinations. Such regulations shall contain the following provisions:
(1) Requests for arbitration shall be in writing and mailed to the Commissioner within 60 days of the receipt of the written statement referred to in paragraph (c)(7) of this section.
(2) Arbitrators shall be chosen from an appropriate panel of arbitrators, and hearings shall be conducted according to rules established by the Department of Insurance.
(3) The arbitrator shall review written arbitration requests prior to holding any hearing or allowing any exchange of information between the parties in order to determine whether a written arbitration request is meritless on its face, and may summarily dismiss meritless requests for arbitration.
(4) Neither party shall be held to have waived any of its rights to seek relief in a court of law with respect to a covered person's legal rights to benefits by an act relating to arbitration or the rendering of an arbitration decision.
(5) Arbitration decisions shall be rendered within 45 days of the Commissioner's receipt of an arbitration request.
(f) The Insurance Commissioner shall establish a schedule of fees for arbitration. Fees chargeable to covered persons shall not exceed $75 per arbitration. The carrier shall be responsible for all costs of arbitration which exceed this fee regardless of the final ruling, and shall reimburse the Commissioner for the expenses related to the arbitration process. Funds paid to the Insurance Commissioner under this subsection shall be placed in the arbitration fund and shall be used exclusively for the payment of appointed arbitrators. The Insurance Commissioner may, in his or her discretion, impose a schedule of maximum fees that can be charged by an arbitrator for a given type of arbitration.
(g) If the arbitrator makes a decision in favor of the carrier, that decision shall give rise to a rebuttable presumption to that effect in any subsequent action brought by or on behalf of the covered person with respect to the decision. Should the decision favor the covered person, the carrier shall have the right to appeal the matter to the court, in accordance with court rules. The outcome of that appeal, however, shall have no effect on the covered person, as to whom the decision of the arbitrator shall control. The assignment of counsel for an appeal by the carrier and the payment of expenses of that assigned counsel shall be as set forth in § 6416(b) of this title.
(h) Nothing in this section shall be construed to affect policies or contracts to the extent that those policies or contracts are exempt from state regulation under federal law or regulation, nor shall anything in this section be read to restrict any affirmative rights granted to patients or insureds under any other provision of the Delaware Code or the common law of the State.
(i) Notwithstanding any other language in the Delaware Code, the Department of Health and Social Services shall have the authority to carry out all duties assigned to it by this section.