BEFORE THE COMMISSIONER OF SECURITIES AND INSURANCE

OFFICE OF THE MONTANA STATE AUDITOR

 

In the matter of the amendment of ARM 6.6.8801, 6.6.8805, 6.6.8806, 6.6.8807, 6.6.8808, 6.6.8820, and 6.6.8841 and the repeal of ARM 6.6.8850 and 6.6.8851 pertaining to Network Adequacy for Managed Care

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NOTICE OF PROPOSED AMENDMENT AND REPEAL   NO PUBLIC HEARING CONTEMPLATED

TO: All Concerned Persons

 

1. The Commissioner of Securities and Insurance, Office of the Montana State Auditor (CSI) proposes to amend and repeal the above-stated rules. 

 

2. The 68th Montana Legislature passed House Bill 156, which transferred the authority and operation of the Managed Care Plan Network Adequacy and Quality Assurance Act from the Department of Public Health and Human Services (DPHHS) to CSI.  The first step in implementing the relevant sections of HB 156 occurred on October 20, 2023, when the commissioner published MAR Notice No. 6-282, which transferred rules pertaining to Network Adequacy for Managed Care Plans from DPHHS to CSI. The second step in implementing the relevant sections of HB 156 is amending the rules to conform to the changes made by HB 156 and to CSI operations, which is accomplished by the amendments proposed in this notice.

 

            3. CSI will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require accommodation, contact CSI no later than 5:00 p.m. on February 20, 2024, to advise us of the nature of the accommodation that you need. Please contact Laura Shirtliff, Digital and Creative Services Director, 840 Helena Avenue, Helena, Montana, 59601; telephone (406) 444-2040 or 1-800-3326148; fax (406) 444-3413; TDD (406) 444-3246; or e-mail csi@mt.gov. 

 

            4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

6.6.8801  DEFINITIONS  The following definitions, in addition to those contained in 33-36-103, MCA, apply to this chapter:

(1)  "Access plan" means a document filed by a health carrier with the department commissioner that complies with the standards set forth in ARM 37.108.205 through 37.108.207 6.6.8805 through 6.6.8807 and 33-36-201, MCA.

(2)  "Advanced practice registered nurse" means a nurse midwife, a nurse anesthetist, a nurse practitioner, or a clinical nurse specialist.

(3)  "Geographic service area" means a geographic area of Montana in which a health carrier has a network that has been deemed adequate by the department commissioner.

 

(4)  "Mid-level provider" means a physician assistant-certified or an advanced practice registered nurse.

(5)  "Non-urgent care with symptoms" means care required for an illness, injury, or condition with symptoms that do not require care within 24 hours to prevent a serious risk of harm but do require care that is neither routine nor preventive in nature.

(6)  "Primary care provider (PCP)" means a physician, mid-level provider, federally qualified health center or rural health clinic as defined in ARM 46.12.1708 37.86.4401, migrant health center, or other community-based provider that is designated by a health carrier to supervise, coordinate, or provide initial or continuing care to an enrollee, and if required by the health carrier, initiate a referral for specialty care services rendered to the enrollee.

(7)  "Specialty provider" or "specialist" means a physician or other provider whose area of specialization is an area other than general medicine, family medicine, general internal medicine, or general pediatrics.  A provider whose area of specialization is obstetrics and/or gynecology may be either a PCP or a specialist within the meaning of this rule.

(8)  "Urgent care" means those health care services that are not emergency services but that are necessary to treat a condition or illness that could reasonably be expected to present a serious risk of harm if not treated within 24 hours.

 

AUTH: 33-36-105, MCA

IMP: 33-36-103, 33-36-105, MCA 

 

6.6.8805  ACCESS PLAN FILING AND REVIEW GUIDELINES  (1)  When a health carrier submits a proposed access plan to the department commissioner for review and approval, the department commissioner will either approve, disapprove, or request additional information on the proposed plan within 60 calendar days.  The department commissioner has a total of 60 calendar days to review and issue a decision concerning any proposed access plan, not including any 30-calendar day response period that may be granted a health carrier proposing the plan.  The department commissioner may grant up to two 30-day response periods during the review of each access plan.

(2)  During the departmental commissioner's review of its proposed access plan, a health carrier must respond to a departmental the commissioner's request for information within 30 calendar days after the date of the request.  If the response remains incomplete, the department commissioner may grant the health carrier a second 30-calendar day period within which to submit a complete response.  If, after two departmental requests by the commissioner for information, the health carrier fails to provide information that the department commissioner deems sufficient to satisfy its requests, the access plan will be disapproved and the health carrier will be required to submit a new proposed access plan prior to enrolling initial or additional enrollees.

(3)  The total number of days allowed for the review of a given proposed access plan may not exceed 120 calendar days, including both time spent by the department commissioner in review of the proposed plan and any time granted to a health carrier to respond to departmental the commissioner's requests for additional information. 

 

AUTH: 33-36-105, MCA

IMP: 33-36-105, 33-36-201, MCA 

 

6.6.8806  ACCESS PLAN UPDATES  (1)  Health carriers shall be responsible for monitoring the status of their networks and must submit an updated access plan to the department commissioner within 30 calendar days after a significant material change in the status of their network.  For the purposes of this rule, a significant material change is a change in the composition of a health carrier's provider network or a change in the size or demographic characteristics of the population enrolled with the health carrier that renders the health carrier's network non-compliant with one or more of the network adequacy standards set forth at in ARM 37.108.215, 37.108.219 and 37.108.227 6.6.8815, 6.6.8819, and 6.6.8827.  If the revised access plan is not submitted within 30 calendar days after the material change in network status occurs, the health carrier must cease enrolling new recipients in the affected geographic service area until the revised access plan is approved by the department commissioner.  Review of the revised access plan is subject to the procedures and consequences outlined in ARM 37.108.205 6.6.8805.

(2)  In addition to the requirement in (1): above,

(a)  the health carrier must submit an updated access plan to the department commissioner pursuant to 33-36-201(4), MCA; and by at least 2 years after the date the carrier's access plan was last approved by the department.

(b)  health carriers must file an updated access plan with the commissioner if the number of providers in the overall provider network or in any specialty provider network decreases by more than 5% during the year in any single geographic service area or in the overall network.  The carrier must file the plan within 30 days of the date the carrier learns of the decrease. 

 

AUTH: 33-36-105, MCA

IMP: 33-36-105, 33-36-201, MCA 

 

6.6.8807  ACCESS PLAN SPECIFICATIONS  (1)  In addition to meeting the requirements of 33-36-201(6), MCA, an access plan for each health carrier offered in Montana must describe or contain the following:

(a)  a list of participating providers which describes the type of provider, their specialty or credentials, and also their names, business addresses, zip codes, and phone numbers.  The list must indicate which providers are accepting new patients;

(b)  the health carrier's policy for making referrals within and outside of the network including, at a minimum, the health carrier's method for complying with each of the standards set forth in ARM 37.108.228, 37.108.229 and 37.108.235 6.6.8828, 6.6.8829, and 6.6.8835;

(c)  the health carrier's process for monitoring on a periodic basis the need for and satisfaction with health care services of the enrolled population and ensuring on an ongoing basis, the sufficiency of the network to meet those needs and, at a minimum, the health carrier's methods for complying with each of the standards set forth in ARM 37.108.240 6.6.8840;

(d)  the health carrier's policy to address the needs of enrollees with limited English proficiency and/or illiteracy, those with diverse cultural and ethnic backgrounds, and those with physical and mental disabilities, in order to insure ensure that these characteristics do not pose barriers to gaining access to services.  The policy shall, at a minimum, describe the health carrier's methods for complying with each of the standards set forth in ARM 37.108.236 6.6.8836; and

(e)  a copy of the health benefit plan's booklet or policy or certificate of coverage, a summary of benefits for each policy (if available), the list of network providers for each policy, and any other important information about the health carrier's services and features which must be provided by the health carrier to either potential enrollees or covered enrollees.  This information must be presented in language that is comprehensible to the average layperson.  The information to be provided includes, but is not limited to:

(i)  a listing of participating providers, as described in (1)(a) above;

(ii)  a summary description of the health carrier's standards for provider credentials and methodology for reviewing provider credentials on an ongoing basis required by ARM 37.108.216 6.6.8816;

(iii)  the procedures in place for selecting and changing providers;

(iv)  a copy of the information filed with the commissioner of insurance detailing the health carrier's benefits, including a comprehensive list of covered and non-covered services;

(v) (iv)  the health carrier's policy regarding enrollee responsibility for co-insurance, copayments, and deductibles;

(vi) (v)  a detailed description of the health carrier's procedures along with authorization for specialty care that comply with ARM 37.108.228 6.6.8828, a schedule of the fees, including co-insurance, copayments, and deductibles, for which an enrollee will be responsible;

(vii) (vi)  policies pertaining to approval of and access to emergency services that meet the requirements of ARM 37.108.214 6.6.8814;

(viii) (vii)  telephone numbers and procedures for contacting an authorized representative of the health carrier who can facilitate review of post-evaluation or post-stabilization services required immediately after receipt of emergency services;

(ix) (viii)  a description of the health carrier's grievance procedures, including specific instructions and guidelines for filing and appealing grievances;

(x) (ix)  a policy regarding use of and payment for in-network services; and

(xi) (x)  a policy regarding use of and payment for out-of-network services;.

(f)  the health carrier's method of providing and paying for emergency screening and services 24 hours a day, 7 days a week, in accordance with ARM 37.108.214 6.6.8814;

(g)  a process for enabling enrollees to change primary care professionals that meets the standards of ARM 37.108.235 6.6.8835;

(h)  a process for transfer of enrollees to other providers must include a provision for transitional care as described in ARM 37.108.229 6.6.8829;

(i)  the process used to address and correct instances where a health carrier has an insufficient number or type of participating providers accessible to enrollees to provide a covered benefit.  This process must comply with the requirements of ARM 37.108.219 and 37.108.220 6.6.8819 and 6.6.8820; and

(j)  the health carrier's procedures for complying with geographic accessibility requirements as outlined in ARM 37.108.219 and 37.108.220 6.6.8819 and 6.6.8820. 

 

AUTH: 33-36-105, MCA

IMP: 33-36-105, 33-36-201, MCA 

 

6.6.8808  ACCESS CRITERIA  (1)  The department commissioner will utilize the criteria set forth in this chapter and Title 33, chapter 36, MCA, to determine whether the network maintained by a health carrier offering a managed care plan in Montana is sufficient in numbers and type of providers. 

 

AUTH: 33-36-105, MCA

IMP: 33-36-105, 33-36-201, MCA 

 

6.6.8820  EXCEPTIONS TO GEOGRAPHIC ACCESS CRITERIA  (1)  The department commissioner may grant exceptions to the geographic accessibility standard in ARM 37.108.219 6.6.8819 if good cause to do so exists.

(2)  Good cause includes but is not limited to the circumstance where the health carrier has documented a good faith effort to negotiate a contract with local providers but has failed to reach an agreement within 60 days after the offer of a written contract from the health carrier.  A good faith effort means an honest effort with the intent to deal fairly with providers and includes offering terms and conditions at least as favorable as those offered to other entities providing the same or similar services.

        

          AUTH: 33-36-105, MCA

          IMP: 33-36-105, 33-36-201, MCA

 

6.6.8841  LETTERS OF INTENT  (1)  In order to demonstrate that its network is adequate, a health carrier may utilize letters of intent from individual providers with whom it does not yet have a contract, so long as the providers do not constitute more than 15% of the total network.  If letters of intent from providers are utilized, within 6 months after the access plan is submitted to the department commissioner, the health carrier must submit to the department commissioner verification that it has an adequate network.

 

AUTH: 33-36-105, MCA

IMP:  33-36-105, 33-36-201, MCA 

 

            5. CSI proposes to repeal the following rules:

 

6.6.8850  CORRECTIVE ACTION

 

AUTH: 33-36-105, MCA

IMP:  33-36-105, MCA

 

6.6.8851  APPEAL FROM DEPARTMENT DECISION

 

AUTH: 2-4-201, 33-36-105, MCA

IMP:  2-4-201, 33-36-105, MCA

 

6. REASON: The Commissioner of Securities and Insurance, Montana State Auditor, Troy Downing (commissioner) is the statewide elected official responsible for administering the Montana Insurance Code and regulating business of insurance. These amendments are necessary to ensure compliance with the Managed Care Plan Network Adequacy and Quality Assurance Act, the administration of which was transferred from DPHHS to CSI by House Bill 156, enacted by the 68th Montana Legislature. The above-stated amendments conform the already-existing rules to the changes made by HB 156 and to CSI's operations. 

 

7. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Laura Shirtliff, Digital and Creative Services Director, 840 Helena Avenue, Helena, Montana, 59601; telephone (406) 444-2040 or 1-800-332-6148; fax (406) 444-3413; TDD (406) 444-3246; or e-mail CSI@mt.gov, and must be received no later than 5:00 p.m., March 8, 2024. 

 

8. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Laura Shirtliff at the above address no later than 5:00 p.m., March 8, 2024.

 

9. If the agency receives requests for a public hearing on the proposed actions from either 10 or 25 percent, whichever is less, of the persons directly affected by the proposed actions; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 10 persons based on a conservative estimate of managed care members. 

 

10.  CSI maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list must make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Written request may be mailed or delivered to the contact person in paragraph 8 or made by completing a request form at any rules hearing held by CSI. 

 

11.  An electronic copy of this proposal notice is available through the Secretary of State's website at http://sosmt.gov/ARM/Register. 

 

12.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.   

 

13. With regard to the requirements of 2-4-111, MCA, CSI has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Ole Olson                                                 /s/ Mary Belcher                  

Ole Olson                                                      Mary Belcher

Rule Reviewer                                               Deputy Auditor

                                                                      Commissioner of Securities and Insurance,

                                                                      Office of the Montana State Auditor

 

 

Certified to the Secretary of State January 30, 2024.