Required provisions in carrier contracts with providers, carrier contracts with intermediaries negotiating on behalf of providers, and carrier contracts with intermediaries conducting utilization reviews
See bold sections below:
Section 1 Authority
This regulation is promulgated and adopted by the Commissioner of Insurance under the authority of §§ 10-1-109, 10-16-121(5), and 10-16-708, C.R.S.
Section 2 Scope and Purpose
The purpose of this regulation is to describe the entities subject to the provisions of §§ 10-16-121, and 10-16-705, C.R.S., which concern the required provisions in insurance carrier’s contracts with health care providers and intermediaries, and to establish how those entities shall meet the requirements of the above sections.
Section 3 Applicability
The provisions of this regulation shall apply to all contracts that concern the delivery, provision, payment or offering of care or services covered by a managed care plan that are entered into between a carrier and a provider or its representative, or between a carrier and an intermediary.
Section 4 Definitions
As used in this regulation, and unless the context requires otherwise:
A. “Carrier” is defined in § 10-16-102(8), C.R.S.
B. “Intermediary” is defined in § 10-16-102(40), C.R.S.
C. “Managed care plan” is defined in § 10-16-102(43), C.R.S.
D. “Utilization management” is defined in § 10-16-1002(10), C.R.S.
E. “Utilization review” is defined in § 10-16-112(1)(b), C.R.S.
Section 5 Rules
A. Every contract between a carrier that has covered lives in Colorado and a provider or its representative that concerns the delivery, provision, payment or offering of care or services covered by a managed care plan that is issued, renewed, amended or extended shall contain provisions substantially similar to the following:
Anti-gag Clause
1. “No individual or group of providers covered by this contract shall be prohibited from protesting or expressing disagreement with a medical decision, medical practice of [name of carrier] or an entity representing or working for the carrier (e.g., a utilization review company).”
2. “[Name of carrier] or an entity representing or working for the carrier shall not be prohibited from protesting or expressing disagreement with a medical decision, medical policy, or medical practice of an individual or group or providers covered by this contract.”
Anti-retaliation
3. “[Name of carrier] shall not terminate this contract because a provider covered by this contract expresses disagreement with a decision by [name of carrier] or an entity representing or working for such carrier to deny or limit benefits to a covered person or because the provider discusses with a current, former or prospective patient any aspect of the patient’s medical condition, any proposed treatments or treatment alternatives, whether covered by the plan or not, policy provisions or a plan, or a provider’s personal recommendation regarding selection of a health plan based upon the provider’s personal knowledge of the health needs of such patients.”
B. Every contract between a carrier and an intermediary that concerns the delivery, provision, payment or offering of care or services covered by a managed care plan that is issued, renewed, amended or extended shall contain a provision requiring that the underlying contract authorizing the intermediary to negotiate and execute contracts with carriers, on behalf of providers, contain provisions substantially similar to the following:
Anti-gag Clause
1. “No individual or group of providers covered by any contract executed by [name of intermediary] shall be prohibited from protesting or expressing disagreement with a medical decision, medical policy or medical practice of the carrier or an entity representing or working for such carrier (e.g. a utilization review company);”
2. “The carrier or an entity representing or working for such carrier shall not be prohibited from protesting or expressing disagreement with a medical decision, medical policy or medical practice of an individual or group of providers covered by any contract executed by [name of intermediary];”
Anti-retaliation
3. “The carrier shall not terminate any contract executed by [name of intermediary]” because any individual or group of providers covered by the contract:
a. Expresses disagreement with a decision by the carrier or an entity representing or working for such carrier to deny or limit benefits to a covered person,
b. Assists the covered person to seek reconsideration for the carrier’s decision, or
c. Discusses with a current, former or prospective patient any aspect of the patient’s medical condition, any proposed treatments or treatment alternatives, whether covered by the plan or not, policy provisions of a plan, or a provider’s personal recommendation regarding selection of a health plan based on the provider’s personal knowledge of the needs of such patients.”
C. Any contract entered into by a carrier with one or more intermediaries to conduct utilization management, utilization reviews, provider credentialing, administration of health insurance benefits, setting or negotiation of reimbursement rates, payment to providers, network development, or disease management programs, when issued, renewed, amended or extended shall contain provisions requiring the intermediary to:
1. Comply with the same standards, guidelines, medical policies, and benefit terms of the carrier; and
2. Indicate the name of the intermediary and the name of the carrier for which it is conducting the work when making any payment to a health care provider on behalf of the carrier.
Section 6 Severability
If any provision of this regulation or the application of it to any person or circumstance is for any reason held to be invalid, the remainder of this regulation shall not be affected.
Section 7 Enforcement
Noncompliance with this Regulation may result in the imposition of any of the sanctions made available in the Colorado statutes pertaining to the business of insurance, or other laws, which include the imposition of civil penalties, issuance of cease and desist orders, and/or suspensions or revocation of license, subject to the requirements of due process. Among others, the penalties provided for in § 10-3-1108, C.R.S. may be applied.
Section 8 Effective Date
This regulation shall become effective on January 15, 2014.
Section 9 History
New regulation effective October 30, 1996.
Amended regulation effective December 1, 2009.
Amended regulation effective January 15, 2014.