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Illinois Admin. Code-Title 50. Insurance-Part 4540. Network Adequacy and Transparency

07/21/2023 Illinois Sections 4540.10 through 4540.80

This entire regulation falls under the category “Network Adequacy.”  See the bold text below to view the sections falling under “Directories” and “Anti-gag clause.”

Section 4540.10 Purpose and Scope

The purpose of this Part is to establish a uniform, expeditious, and required procedure for filing network descriptions with the Department before issuing, delivering, or renewing approved products as required under Section 10 of the Network Adequacy and Transparency Act [215 ILCS 124], as well as requirements for provider directory audits under Section 25 of that Act. Nothing in this Part shall be construed to require an insurer to comply with standards related to any provider specialty type for which the network plan does not provide covered services.

Section 4540.20 Applicability

This Part applies to any individual or group policy of accident and health insurance, health maintenance organization health care plan, or voluntary health services plan when the insurance or plan is a network plan issued, delivered, or renewed in Illinois. It does not apply to any individual or group policy of dental or vision insurance or a limited health service organization. (Section 3 of the Act) This Part also does not apply to the medical assistance program under the Illinois Public Aid Code.

Section 4540.30 Definitions

Terms used in this Part have the meanings ascribed in Section 5 of the Act. In addition, the following definitions apply to this Part and the Act:

“2023 Letter” means the “2023 Letter to Issuers in the Federally-facilitated Exchanges” published by the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244 (January 7, 2022) (no later editions or amendments), available online at https://www.cms.gov/files/document/2023-draft-letter-issuers-508.pdf.

“Act” means the Network Adequacy and Transparency Act [215 ILCS 124].

“Acute inpatient hospital” means a hospital that provides emergency services 24 hours per day, every day of the year.

“CEAC” or “Counties with Extreme Access Considerations” means counties that satisfy the criteria for a CEAC county type designation provided in Section 3.1.1 of the MA Guidance.

“Contracted network group” means, for an insurer filing a network description under Section 10 of the Act, any group of providers with a direct or indirect contract or arrangement with a PPPA, MCO, other insurer, exempt HMO, or any other business entity by which beneficiaries are incentivized or required to use those providers’ services, and which the filing insurer has directly or indirectly contracted or arranged with the business entity to include among the filing insurer’s preferred providers at any tier of its own network plan. “Contracted network group” includes any group of providers the filing insurer has directly or indirectly contracted or arranged through another business entity to use for the filing insurer’s network plan even when the group also is or has previously been contracted or arranged to provide services under Medicaid, Medicare, or any other public or private health benefits program not subject to the Act. “Contracted network group” does not include providers with which the filing insurer has directly contracted or arranged for services under its network plan. For purposes of this definition, a parent, subsidiary, or other affiliate of a filing insurer is not the same business entity as the filing insurer.

“County type” means Large Metro, Metro, Micro, Rural, or CEAC.

“Exempt HMO” means an HMO with respect to its Medicaid or Medicare Advantage health care plan.

“HMO” means a Health Maintenance Organization as defined in Section 1-2(9) of the Health Maintenance Organization Act [215 ILCS 125].

“Individual or group policy for dental or vision insurance” means limited scope dental or vision benefits provided under a separate policy, certificate, or contract of insurance in compliance with 45 CFR 146.145(b)(3)(i) through (iii) (May 14, 2020) (no later editions or amendments) or 45 CFR 148.220(b)(1) (Oct. 31, 2016) (no later editions or amendments). The term includes, but is not limited to, a stand-alone dental plan.

“Large Metro” means a county that satisfies the criteria for a Large Metro county type designation provided in Section 3.1.1 of the MA Guidance.

“MA Guidance” means the “Medicare Advantage Network Adequacy Criteria Guidance” published by the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244 (January 10, 2017) (no later editions or amendments), available online at https://www.cms.gov/Medicare/Medicare-Advantage/MedicareAdvantageApps/Downloads/MA_Network_Adequacy_Criteria_Guidance_Document_1-10-17.pdf.

“Material change” has the meaning ascribed in Section 5 of the Act and includes, but is not limited to:

a reduction of 10% or more of a provider specialty type in the network as a whole;

the removal of a major health system that causes a network to be significantly different within one or more counties from the network when the beneficiary purchased the network plan;

when the network’s provider ratio for any type of provider no longer satisfies the requirements of Section 4540.40(e); and

when the network no longer satisfies the time and distance standards in any county for any type of provider described or incorporated under Section 4540.40(d). (Section 5 of the Act)

“MCO” has the meaning ascribed in 50 Ill. Adm. Code 4521.20.

“Metro” means a county that satisfies the criteria for a Metro county type designation provided in Section 3.1.1 of the MA Guidance.

“Micro” means a county that satisfies the criteria for a Micro county type designation provided in Section 3.1.1 of the MA Guidance.

“Network” means the group or groups of preferred providers providing services to a network plan. (Section 10 of the Act) Unless otherwise indicated, for purposes of the Act, a network consists of all preferred providers, and only those preferred providers, that service a network plan’s beneficiaries, including all network tiers, if applicable, regardless of whether the filing insurer directly employs or contracts with those providers or has arranged access to them as members of one or more contracted network groups. Notwithstanding the existence of any contract between the insurer and the provider or the provider’s contracted network group, a provider that is not a preferred provider with respect to a particular network plan is not part of the network for that plan. Nothing in this definition prevents more than one network plan from having the same network, nor shall it be interpreted in a manner inconsistent with Section 10(e) of the Act.

“Preferred provider” means any provider who has entered, either directly or indirectly, into an agreement with an employer or risk-bearing entity relating to health care services that may be rendered to beneficiaries under a network plan. (Section 5 of the Act)

“Preferred Provider Program Administrator” has the meaning ascribed in 50 Ill. Adm. Code 2051.220.

“Provider ratio” means the number of preferred providers of a given provider specialty type within the service area in relation to the number of network plan beneficiaries.

“Provider specialty type” or “type of provider” means a provider specialty type listed in 215 ILCS 124/10(c)(1) or in Table 3.1 or 3.2 of the 2023 Letter. A single facility may encompass more than one provider type.

“Rural” means a county that satisfies the criteria for a Rural county type designation provided in Section 3.1.1 of the MA Guidance.

“Qualified health plan” or “QHP” means a health plan that meets the criteria for a qualified health plan in 42 U.S.C. 18021.

“SERFF” means the System for Electronic Rate and Form Filing provided by the National Association of Insurance Commissioners (https://www.serff.com).

“Service area” means the approved county or total composition of counties where the network plan is available for purchase to consumers.

“Stand-alone dental plan” has the meaning ascribed in 45 CFR 153.400 (May 26, 2022) (no later editions or amendments).

Section 4540.40 Filing Procedures

At least annually, an insurer shall file with the Director the description required under Section 10 of the Act for each network plan before the network plan is issued, delivered, or renewed in this State. Each filing shall be submitted through SERFF under the Supporting Documentation tab as searchable text PDFs unless the applicable template is an Excel spreadsheet. Filings must include the following information:

a) A complete list of network plan names, associated SERFF Tracking Numbers, and applicable form numbers that will use the network;

b) The following network information:

1) for HMOs, the approval letter from the Illinois Department of Public Health stating the county or counties, including any partial counties, in which the insurer has been granted the authority to operate;

2) for HMOs, a list of the MCOs, including but not limited to individual practice associations and physician-hospital organizations, used within the network. The list must include each MCO’s legal entity name, corporate address, point of contact at the entity, and point of contact’s phone number and email address;

3) for any insurer, a list of all Preferred Provider Program Administrators (PPPAs), if any, through which the insurer has contracted to include providers in the plan’s network and each PPPA’s corresponding Federal Employer Identification Number (FEIN). An insurer shall verify before filing that all PPPAs are registered with the Department and in good standing with the Secretary of State; and

4) the specific name of the network;

Directories

c) The print and electronic versions of the provider directories. The directories must include up-to-date, accurate, and complete provider/facility type, location, and contact information required under Section 25 of the Act. Providers available by telehealth or telemedicine must be clearly identified and include information required under the Act. The print directory, along with the errata, shall be a PDF of the most recent edition published no more than three months before the date of filing. Notwithstanding the above, if the insurer has never offered a network plan with the network described in the filing, the printed and electronic directories shall include all preferred providers that, as of the filing date, are under contract, agreement, or arrangement to service the beneficiaries of the network plan when it is issued;

d) Compliance with time and distance standards as follows:

1) Except as provided in subsection (d)(2), for any network plan issued, delivered, or renewed on or after January 1, 2023, the filing required under Section 10 of the Act shall demonstrate compliance with the federal time and distance standards established in Tables 3.1 and 3.2 of the 2023 Letter for each county in the service area. These standards prescribe the maximum limits of travel in minutes and miles that a beneficiary residing in a given county type may be expected to undertake to a preferred provider of a given provider specialty type. The Department will ensure that distance standards are measured no less stringently than straight-line distance (i.e., “how the crow flies”) between the beneficiary and the preferred provider, but an insurer may apply more stringent standards that measure distance based on travel along existing roads. Time standards shall be evaluated based on estimated driving time from the beneficiary to the preferred provider using mapping output data for travel along existing roads. Measurements of driving time must not be exclusively based on nor, if an average driving time is used, disproportionately weighted toward weekends, any day during the week of a federal or State holiday, or times outside the range of 8 am through 5 pm.

2) For time and distance standards related to outpatient, inpatient, or residential treatment for mental, emotional, nervous, or substance use disorders or conditions, the network plan’s compliance with time and distance standards will be evaluated as follows:

A) the Department will enforce compliance with Section 10(d-5) of the Act for all network plans. The insurer shall provide evidence of its arrangements under which, if the network plan has no preferred provider available that meets the network adequacy standards of Section 10(d-5) in relation to a beneficiary, it will make the necessary exemptions to its network to ensure admission and treatment with a non-preferred provider or facility at no greater cost to the beneficiary than if the service or treatment had been provided by a preferred provider; and

B) nothing in this Part shall be construed to supersede, exempt, or waive the requirement under 45 CFR 156.230(a)(2) (May 6, 2022) (no later editions or amendments) that insurers offering QHPs demonstrate compliance with the quantitative time and distance standards in Tables 3.1 or 3.2 of the 2023 Letter for Outpatient Clinical Behavioral Health, Psychiatry, and Inpatient or Residential Behavioral Health Facility Services. The Department will defer to the U.S. Department of Health and Human Services to enforce those standards for QHPs, including the evaluation of an insurer’s justifications for exceptions. However, for purposes of subsection (d)(1), an insurer may elect to demonstrate to the Department that the network plan actually complies with the federal time and distance standards without an exception in any county where the federal standards match or exceed the standards provided in Section 10(d-5) of the Act;

e) For any network plan to be issued, delivered, amended, or renewed on or after January 1, 2023, the filing required under Section 10 of the Act must demonstrate compliance with the following minimum provider ratios. For health care professionals, the provider ratios below are expressed in terms of preferred providers to beneficiaries. For facilities, the provider ratios are expressed in terms of the number of facilities per county:

1) primary care physician, general practice, family practice, internal medicine, or primary nurse practitioner – 1:1,000;

2) allergy/immunology – 1:15,000;

3) cardiology – 1:10,000;

4) chiropractic – 1:10,000;

5) dermatology – 1:10,000;

6) endocrinology – 1:10,000;

7) ENT/otolaryngology – 1:15,000;

8) gastroenterology – 1:10,000;

9) general surgery – 1:5,000;

10) gynecology or OB/GYN – 1:2,500;

11) infectious diseases – 1:15,000;

12) nephrology – 1:10,000;

13) neurology – 1:20,000;

14) oncology/radiation – 1:15,000;

15) ophthalmology – 1:10,000;

16) orthopedic surgery – 1:10,000;

17) physiatry/rehabilitative medicine – 1:15,000;

18) plastic surgery – 1:20,000;

19) behavioral health – 1:5,000;

20) pulmonology – 1:10,000;

21) rheumatology – 1:10,000;

22) urology – 1:10,000;

23) acute inpatient hospital with emergency services available 24 hours a day, 7 days a week – one per county; and

24) inpatient or residential behavioral health facility – one per county;

f) Facilities lists and related exception requests, as follows:

1) Insurers must complete and attach the Network Adequacy County

Facilities template found on the Department’s website at https://idoi.illinois.gov/content/dam/soi/en/web/insurance/sites/insurance/companies/documents/network-adequacy-county-facilities.xls, identifying all contracted acute inpatient hospitals and contracted inpatient or residential behavioral health facilities for each county in the network. If an insurer does not have a contracted acute inpatient hospital or a contracted inpatient or residential behavioral health facility in a county in which the insurer is marketing the network plan, the county must be marked as NA (not applicable) or left blank on the template;

2) For any county that the insurer seeks to include in its service area that does not have a contracted acute inpatient hospital or a contracted inpatient or residential behavioral health facility, the insurer must request an exception under Section 10(g) of the Act using the Network Adequacy Exception Form (https://idoi.illinois.gov/content/dam/soi/en/web/insurance/sites/insurance/companies/documents/networkadequacyexceptionform.pdf). For inpatient or residential behavioral health facilities, an exception may only be requested with respect to the minimum provider ratio;

g) Written policies and procedures describing the following aspects of the network plan:

1) how the network plan will add preferred providers to meet patient needs based on increases in the number of beneficiaries, changes in patient‐to provider ratio, changes in medical and health care capabilities, and increased demand for services;

2) for HMOs, the referral procedures for providers within and outside the network; and

3) how the network plan will provide 24‐hour, 7‐day-per-week access to network‐affiliated primary care, emergency services, and women’s principal health care providers as set forth in Section 10(a)(3) of the Act;

h) Geographic maps of the proposed service area for the network plans that use the network by county and ZIP code, including marked locations for preferred providers. (Section 10(b)(1) of the Act) A separate geographic map with marked locations must be provided for each provider specialty type for which the Department enforces any time and distance standards under this Section or Section 10(d-5) of the Act. Each map must include all preferred providers under the network plan, including all contracted network groups, except that, for network plans with tiered networks that are not solely offered as group health plans, the map must only include preferred providers from the lowest cost-sharing tier. Each map must display all preferred providers of the provider specialty type with a dot point indicator marking the specific location of each preferred provider of that type and must highlight the areas that are covered by circles whose radii originate from each preferred provider’s dot using both the time and the distance standards for the applicable provider specialty type in the county type or types that the preferred provider will serve. The map may omit overlapping boundary lines among two or more circles;

i) A list of all preferred providers, identified by specialty type, for each network to be submitted via the Illinois Network Adequacy (Tiered) Collection Template located on the Department’s website at https://idoi.illinois.gov/content/dam/soi/en/web/insurance/sites/insurance/companies/documents/appendixa4networkadequacycollectiontemplate.xls. All applicable fields must be completed in full. This is a separate requirement from the requirement to file provider directories. The template requires the following information:

1) on the Providers tab, the insurer’s federal Health Insurance Oversight System (HIOS) Issuer ID, if applicable, and the Issuer State, as well as each provider’s National Provider Identifier (NPI) Number, provider name prefix, first name, middle initial (if applicable), last name, name suffix, physician or non-physician status, specialty type, street address, second line of street address (if applicable), city, state, county, ZIP code, network IDs, and provider tier;

2) on the Non-ECP Facilities tab, for each facility provider that is not an “essential community provider” as defined in 45 CFR 156.235(c) (March 31, 2022) (no later editions or amendments), the facility’s NPI Number, facility name, facility type, street address, second line of street address (if applicable), city, state, county, ZIP code, network IDs, and provider tier;

3) on the Dental Network tab, each dental provider’s NPI Number, provider name prefix, first name, middle initial (if applicable), last name, name suffix, physician or non-physician status, specialty type, street address, second line of street address (if applicable), city, state, county, ZIP code, and network IDs;

j) The number of network plan participants anticipated to be covered by the network plan, as well as the aggregate participants anticipated for all of the filing insurer’s network plans that use the network. An insurer may satisfy this requirement by filing the Proposed Enrollment Template (https://idoi.illinois.gov/content/dam/soi/en/web/insurance/sites/insurance/companies/documents/proposedenrollmenttemplate.xls) it has used in the annual certification process for a qualified health plan (see 42 U.S.C. 18021(a)(1));

k) Samples of any notices of nonrenewal or termination that will be sent to providers and beneficiaries served by those providers (see Section 15 of the Act);

l) Language from policy forms about non-emergency health care services from non-preferred providers, as follows:

1) For network plans not issued by an HMO, a provision that the beneficiary will be provided a covered service at no greater cost to the beneficiary than if the service had been provided by a preferred provider if the beneficiary has made a good faith effort by accessing the provider directory, calling the network plan, and calling the provider, to utilize preferred providers for that service and it is determined that the insurer does not have appropriate preferred providers due to insufficient number, type, or unreasonable travel distance or delay. This provision shall comply with all applicable requirements and exceptions under Section 10(b)(6) of the Act; and

2) for an HMO network plan, language specifying the procedure for a primary care physician to follow to refer the beneficiary to a non-preferred provider when a specialist is not available within the HMO network. This provision shall comply with all applicable requirements and exceptions under Section 10(b)(6) of the Act;

m) For each network plan that will use the network, language from the policy forms providing that the beneficiary shall receive emergency care coverage such that payment for this coverage is not dependent upon whether the emergency services are performed by a preferred or non‐preferred provider and the coverage shall be at the same benefit level as if the service or treatment had been rendered by a preferred provider. For purposes of this requirement, “the same benefit level” means that the beneficiary is provided the covered service at no greater cost to the beneficiary than if the service had been provided by a preferred provider. (Section 10(b)(7) of the Act) Additionally, this provision must comply with all requirements described or incorporated under Section 10(b)(7) of the Act;

n) If a network plan imposes precertification penalties for inpatient hospital stays, language from the policy form complying with Section 10(b)(8) of the Act;

Anti-gag clause

o) For each network plan that will utilize the network, language from the provider contract demonstrating that preferred providers are not prohibited from discussing any specific or all treatment options with beneficiaries irrespective of the insurer’s position on those treatment options, or from advocating on behalf of beneficiaries within the utilization review, grievance, or appeals processes established by the insurer in accordance with any rights or remedies available under applicable State or federal law; (Section 10(a) of the Act)

p) A description of how health care services to be rendered under the network plan are reasonably accessible and available to beneficiaries, including the type of health care services to be provided by the network plan. The description shall address all of the following:

1) the type of health care services to be provided by the network plan; (Section 10(b)(5) of the Act)

2) the ratio of physicians and other providers to beneficiaries, by specialty and including primary care physicians and facility-based physicians when applicable under the contract, necessary to meet the health care needs and service demands of the currently enrolled population;

3) the travel and distance standards for network beneficiaries in county service areas; and

4) the availability of telehealth care, including how the use of telemedicine, telehealth, or mobile care services may be used to partially meet the network adequacy standards, if applicable (Section 10(b)(5) of the Act);

q) Any exceptions requested for the network plan’s compliance with any provider ratio, time and distance, or appointment waiting time standards specified or implemented under Section 10 of the Act, which shall be filed using the Network Adequacy Exception Form available on the Department’s website at https://insurance2.illinois.gov/HealthInsurance/NetworkAdequacyExcemptionForm.pdf. The insurer must disclose on this form the following information:

1) insurer contact information, including the insurer’s legal name, address, city, state, ZIP code, contact name, contact phone number, and email address;

2) for network plans that do not meet one or more of this Part’s time and distance standards in any county, the following information:

A) Contact information for the next closest preferred provider or facility with that specialty, including name, address, city, state, county, ZIP code, and phone number, and the distance and time that beneficiaries would have to travel beyond the required criteria to reach that provider (Section 10(g)(1) of the Act); and

B) Any providers or facilities that would satisfy the time and distance standards if they were contracted for use with the network plan;

3) if the insurer believes that patterns of care in the service area do not support the need for compliance with the required ratio for a specific provider or facility type, all applicable data on local patterns of care, such as claims data, referral patterns, or local provider interviews, indicating where the beneficiaries currently seek this type of care or where the physicians currently refer beneficiaries, or both, and an explanation of how the data supports the insurer’s position (Section 10(g)(2) of the Act);

4) any network deficiencies in any county with respect to the time and distance or appointment waiting time standards established by Section 10(d-5) of the Act. No exceptions will be granted to the requirements of Section 10(d-5) of the Act; and

5) any other circumstances that the insurer believes justify an exception to the provider ratios or time and distance standards specified in this Part, along with supporting documentation. With respect to time and distance standards, the Department may take into consideration other obstacles to a network plan’s timely compliance, including, but not limited to, the following factors that may, but are not required to, be submitted on any federal QHP template or justification form that lists substantially similar factors:

A) no provider can satisfy the time and distance standards for beneficiaries residing in some or all areas of the county because of unpassable topographical features, such as bodies of water or mountainous areas where bridges, tunnels, or other reasonably direct roads are not in close proximity;

B) no provider of the specialty type within the county’s time and distance standards is licensed, accredited, or certified by the State;

C) all providers of the specialty type within the county’s time and distance standards contract exclusively with another insurer, whether directly or through their contracted network group;

D) no providers of the specialty type within the county’s time and distance standards directly or indirectly contract with any commercial insurer;

E) no providers of the specialty type practice within the county’s time and distance standards;

F) good faith contracting offers to providers of the specialty type or potential contracted network groups have been rejected by the provider or group;

G) the network is still under development with respect to the specialty type but will be in compliance by the start of open enrollment or the start of the plan or policy year; or

H) the preferred providers within the county’s time and distance standards for the specialty type have recently moved, retired, or closed; and

r) A completed Network Adequacy Checklist, available on the Department’s website (https://idoi.illinois.gov/content/dam/soi/en/web/insurance/companies/documents/NetworkAdequacyTransparencyChecklist.pdf), in which the insurer must:

1) identify itself by its legal entity name and the SERFF Tracking Number of the filing made under this Section; and

2) write the word “Affirmed”, the name of the document where the requirement is satisfied, and any applicable page, tab, or section in the document, next to every requirement on the checklist applicable to the network plan.

s) For a network plan issued or renewed during 2023 that does not use the same network as any Department-approved QHP from the same insurer for the same year, an insurer may submit a filing no later than July 1, 2023 that combines the annual filings described in this Section for both 2023 and 2024 issuance and renewals.

1) For 2023 issuances and renewals, the combination filing shall demonstrate the network plan’s compliance and request exceptions based on the network status on the filing date.

2) For 2024 issuances and renewals, the combination filing shall demonstrate the network plan’s compliance and request exceptions based on the network conditions anticipated to exist by the issue or renewal date. An insurer may rely on network status on the filing date whenever the conditions are anticipated to remain materially unchanged by the issue or renewal date.

3) An insurer shall expressly distinguish in a cover letter or by computer filename which filed documents are intended to apply to both 2023 and 2024 or just to one of those years. The filing does not need to include duplicates of any policy form provision, provider contract, internal policy or procedure, provider list, provider directory, or map if, as of the filing date, the contents are not expected to change from 2023 to 2024.

4) Provider lists and directories filed for 2023 issuances and renewals must be the most recent editions as of the filing date. Provider lists and directories for 2024 must include any providers contracted to be in the network by the start of the plan or policy year.

5) This combination filing option is not available for any network plan offered in 2023 for which the insurer previously submitted a filing that demonstrated its degree of compliance and requested exceptions from the time and distance standards specified in the 2023 Letter.

Section 4540.50 Material Changes to a Network

a) Within 15 days after any material change in an approved network plan, an insurer must submit a material change filing. The insurer shall submit a revised version of the most recent network adequacy filing described in Section 4540.40 based on the material change and shall identify the SERFF Tracking Number of the annual filing that the material change filing is updating. The material change filing must show the changes for each document that was revised from the annual filing and must ensure that any exemptions requested under Section 10(g) of the Act account for the material change. Including when a major health system is removed from a network, an insurer is only required to submit information related to the provider specialty type or types affected by the material change and, unless the network as a whole experienced a 10% reduction, only in the county or counties where beneficiaries were affected by the material change. Material change filings do not need to include any documents described in Section 4540.40(k) through (o) or (s).

b) An insurer may request a 15-day extension to submit the filing described in this Section if, by the original deadline, the insurer reports to the Department the specific triggers for the material change, the provider specialty types known to be affected, the counties known to be affected, and the aggregate number of current beneficiaries affected. The Department will not unreasonably withhold approval of an extension satisfying these criteria.

Directories

Section 4540.60 Provider Directory Audits

a) By April 1 of each year, an insurer shall file with the Department a report applicable to all provider directories of all its network plans that describes the protocols the insurer uses to ensure that it complies with the requirements in Section 25 of the Act to keep each electronic directory up-to-date, accurate, and complete by updating it both at least monthly and within 10 business days of receipt of updated information from preferred providers, as well as to update the print directory and errata quarterly and to ensure that the print directory is accurate as of the date of publication. The report shall also describe the insurer’s current verification process established pursuant to 42 U.S.C. 300gg-115(a)(2). The report shall also describe any changes to these protocols and to the verification process that have occurred since the beginning of the previous calendar year. The report shall describe all variances in the protocols and the verification process among the insurer’s network plans or between its different provider directories, including any distinctions made among HMO and Preferred Provider Organization (PPO) networks. An insurer that demonstrates that, at all times during the audit period, the contents of any print directory are printed from the same data used for the corresponding online directory on the same date of printing is exempt from auditing the print directories separately. For 2023, the report shall be filed no later than July 1.

b) An insurer must conduct the periodic self-audit required under Section 25(a)(3) of the Act for each provider directory no less than twice per year. If an insurer has not completed a self-audit for each provider directory by the date this rule takes effect, it shall audit the provider directory for that network plan and generate a report by July 1, 2023. The insurer’s unredacted internal self-audit reports generated during the previous calendar year shall be attached to the report required under subsection (a).

c) Each self-audit report generated on or after July 1, 2023 must include a summary specifically identifying each print and electronic directory audited, the marketing name of each network plan using that directory, and the SERFF Tracking Number of the most current filing under Section 10 of the Act that contained the directory. The summary must specify, at a minimum:

1) For each print or electronic directory audited and each provider specialty type in that directory, the number of preferred providers for which the self-audit revealed any incorrect provider directory information at the time of audit;

2) For each print or electronic directory audited and for each provider specialty type in that directory, the number of preferred providers that had furnished corrected or updated information to the insurer more than the following number of business days prior but the self-audit revealed any incorrect provider directory information still present:

A) for an electronic directory, 10 business days before the auditor reviewed that provider’s directory information, and

B) for a print directory that is not an on-demand, unaltered printout of the electronic directory, 10 business days before the date of printing;

3) For each print or electronic directory audited and for each provider specialty type in that directory, the number of:

A) preferred providers with directory entries updated since the prior self-audit;

B) preferred providers that submitted updates to their provider directory information since the prior self-audit; and

C) preferred providers from whom the insurer requested updated information because of the self-audit or other internal detection of inaccurate information or any complaint received of inaccurate provider information since the prior self-audit;

4) For each print or electronic directory audited and for each provider specialty type in that directory, the smallest, largest, and median number of business days since the prior self-audit between:

A) the insurer’s receipt of updated information from a preferred provider or the termination of a provider contract if the insurer is contractually required to update the directory on its own initiative; and

B) the insurer’s update to the electronic or print provider directory;

5) The combined totals of the numbers in subsections (c)(1) through (4) across all provider specialty types, both within each directory and across all directories provided by the insurer; and

6) A high-level evaluation of the effect of known internal or external processes or circumstances and changes to those processes or circumstances on the accuracy of the insurer’s directories and the timeliness of updates to directory information under State and federal requirements.

d) Any time the insurer submits a report or other documentation to the federal Centers for Medicare and Medicaid Services related to the insurer’s compliance with 42 U.S.C. 300gg-115(a)(2), the insurer shall give the Department a copy of that report or documentation.

e) The Director may request additional information upon receipt of a self-audit report and may at any other time audit the accuracy of any network plan’s provider directory.

f) Reports required under this Section shall be filed in SERFF as a network adequacy filing separately from the insurer’s filings required under Section 10 of the Act.

Section 4540.70 Notice of Nonrenewal or Termination

Beginning May 1, 2023, before sending any notice of nonrenewal or termination required under Section 15 of the Act, an insurer shall file informationally with the Department through SERFF a sample copy of the notices to providers and beneficiaries. An insurer shall include these notices in its filing under Section 10 of the Act.

Section 4540.80 Confidentiality

a) All records in the custody or possession of the Department are presumed to be open to public inspection or copying unless exempt from disclosure by Section 7 or 7.5 of the Freedom of Information Act [5 ILCS 140]. Except as otherwise provided in this Section or under other applicable law, the filings required under the Act and this Part and communications between the Department and an insurer in connection with those filings are open to public inspection or copying.

b) The following information shall not be considered confidential:

1) actual or projected ratios of providers to beneficiaries, and whether a network plan has satisfied the Act’s requirements for these ratios;

2) actual or projected time or distance between preferred providers and beneficiaries;

3) actual or projected appointment waiting times for a beneficiary to see a preferred provider;

4) geographic maps of preferred providers;

5) provider directories and provider lists;

6) exceptions to compliance with Section 10 of the Act, except with respect to any explicit discussion of ongoing or planned contractual negotiations with preferred providers that the insurer expressly asks to be treated as confidential; and

7) insurer or Department statements of determination as to whether a network plan has satisfied the Act’s requirements regarding the information described in subsections (b)(1) through (b)(6).

c) An insurer’s workpapers and reports under Section 4540.60 shall remain confidential unless the insurer expressly waives confidentiality or unless all or some of the workpaper or report is considered public information under federal law or the Freedom of Information Act [5 ILCS 140].

d) Except when contrary to other applicable law, a filing required under Section 10 of this Act and the related communications between the Department and the insurer will be treated as confidential while the filing remains under the Department’s review but will become open to public inspection and copying upon the completion of the Department review.

e) If an insurer wishes to assert that any information filed under the Act or this Part, other than the information specified in subsection (b), should be withheld from public disclosure based on a claim that the information is a trade secret or confidential commercial or financial information, the insurer shall:

1) include a cover letter in its filing that identifies all documents containing confidential information and specifies the types of information that are trade secrets or confidential commercial or financial information that the insurer considers proprietary, privileged, or confidential, as well as a brief factual explanation as to how the disclosure of each type of information would cause competitive harm to the insurer;

2) if a document is confidential in its entirety, include a cover page, a note on the first page, or a note in the margins that the document is confidential; and

3) if the document contains both confidential information and public information, include both an unredacted and a redacted copy of that document in the filing. The redactions shall only extend to the confidential information identified in the cover letter.

f) Documents filed and communications exchanged with the insurer under the Act will not be deemed examination materials unless requested by the Department’s examination staff or a duly appointed examiner and transmitted outside of SERFF. Nothing in this Section shall be construed to override the statutory requirement that workpapers that the Department obtains or creates during a market conduct examination remain confidential.

See https://ilga.gov/commission/jcar/admincode/050/05004540sections.html

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Division of Insurance-Code of Colorado Regs-3 CCR 702-4 Series 4-2

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Health and Safety Code-Division 2-Chapter 2.2. Health Care Service Plans-Article 5. Standards

08/29/2023 California Section 1367.207

Gag clauses and retaliation prohibited with respect to prescribing providers

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Ariz. Rev. Statutes-Title 20. Insurance-Chapter 4-Article 1. Scope of Title

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Prohibition; definitions

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State Law

Missouri Statutes-Title XXIV-Chapter 376. Business and Financial Institutions

08/08/2023 Missouri Section 376.2020

Contracts prohibiting disclosure of certain payments and costs are unenforceable

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State Law

Minnesota Statutes-Chapter 62J. Health Care Cost Containment-Patient Protection Act

08/08/2023 Minnesota Section 62J.71

 Prohibited Provider Contracts

Anti-gag clause, Anti-retaliation
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Part I. Insurance – Chapter 64. Regulation of Managed Care Organizations

08/01/2023 Delaware Section 6414

Nondisclosure clause

Anti-gag clause