§431:26-104 Requirements for health carriers and participating providers. (a) A health carrier shall establish a mechanism by which participating providers shall be notified on an ongoing basis of the specific covered health care services for which the providers will be responsible, including any limitations or conditions on services.

(b) Every contract between a health carrier and a participating provider shall contain the following hold harmless statement, specifying protection for covered persons, or a substantially similar statement:

"Provider agrees that in no event, including but not limited to nonpayment by the health carrier or intermediary, insolvency of the health carrier or intermediary, or breach of this agreement, shall the provider bill, charge, collect a deposit from, seek compensation, remuneration, or reimbursement from, or have any recourse against a covered person or a person other than the health carrier or intermediary, as applicable, acting on behalf of the covered person for services provided pursuant to this agreement. This agreement does not prohibit the provider from collecting coinsurance, deductibles, or copayments, as specifically provided in the evidence of coverage, or fees for uncovered services delivered on a fee-for-service basis to covered persons; provided that a provider shall not bill or collect from a covered person or a person acting on behalf of a covered person any charges for non-covered services or services that do not meet the criteria in section 432E-1.4, Hawaii Revised Statutes, unless an agreement of financial responsibility specific to the service is signed by the covered person or a person acting on behalf of the covered person and is obtained prior to the time services are rendered. This agreement does not prohibit a provider, except for a health care professional who is employed full-time on the staff of a health carrier and has agreed to provide services exclusively to that health carrier's covered persons and no others, and a covered person from agreeing to continue services solely at the expense of the covered person; provided that the provider has clearly informed the covered person that the health carrier may not cover or continue to cover a specific service or services. Except as provided herein, this agreement does not prohibit the provider from pursuing any available legal remedy."

(c) Every contract between a health carrier and a participating provider shall provide that in the event of a health carrier or intermediary insolvency or other cessation of operations, the provider's obligation to deliver covered services to covered persons without balance billing shall continue until the earlier of:

(1) The termination of the covered person's coverage under the network plan, including any extension of coverage provided under the contract terms or applicable state or federal law for covered persons who are in an active course of treatment or totally disabled; or

(2) The date the contract between the carrier and the provider, including any required extension for covered persons in an active course of treatment, would have terminated if the carrier or intermediary had remained in operation.

(d) Contract provisions required by subsections (b) and (c) shall be construed in favor of the covered person, shall survive the termination of the contract regardless of the reason for termination, including the insolvency of the health carrier, and shall supersede any oral or written contrary agreement between a provider and a covered person or the representative of a covered person if the contrary agreement is inconsistent with the hold harmless and continuation-of-covered services requirements under subsections (b) and (c).

(e) In no event shall a participating provider collect or attempt to collect from a covered person any money owed to the provider by the health carrier.

(f) [Repeal and reenactment on July 1, 2024. L 2019, c 70, §36(2).] Selection standards shall be developed pursuant to the following:

(1) Health carrier selection standards for selecting and tiering, as applicable, participating providers shall be developed for providers and each health care professional specialty;

(2) The standards shall be used in determining the selection of participating providers by the health carrier and the intermediaries with which the health carrier contracts. The standards shall meet requirements relating to health care professional credentialing verification developed by the commissioner by order or through rules adopted pursuant to chapter 91;

(3) Selection criteria shall not be established in a manner:

(A) That would allow a health carrier to discriminate against high risk populations by excluding providers because the providers are located in geographic areas that contain populations or providers presenting a risk of higher than average claims, losses, or health care services utilization;

(B) That would exclude providers because the providers treat or specialize in treating populations presenting a risk of higher than average claims, losses, or health care services utilization; or

(C) That would discriminate with respect to participation under the health benefit plan against any provider who is acting within the scope of the provider's license or certification under applicable state law or regulations; provided that this subparagraph shall not be construed to require a health carrier to contract with any provider who is willing to abide by the terms and conditions for participation established by the carrier;

(4) Notwithstanding paragraph (3), a carrier shall not be prohibited from declining to select a provider who fails to meet the other legitimate selection criteria of the carrier developed in compliance with this article; and

(5) This article does not require a health carrier, its intermediaries, or the provider networks with which the carrier and its intermediaries contract, to employ specific providers acting within the scope of the providers' license or certification under applicable state law that may meet the selection criteria of the carrier, or to contract with or retain more providers acting within the scope of the providers' license or certification under applicable state law than are necessary to maintain a sufficient provider network.

(g) A health carrier shall make its standards for selecting participating providers available for review and approval by the commissioner. A description in plain language of the selection standards of the health carrier shall be made available to the public.

(h) A health carrier shall notify participating providers of the providers' responsibilities with respect to the health carrier's applicable administrative policies and programs, including but not limited to:

(1) Payment terms;

(2) Utilization review;

(3) Quality assessment and improvement programs;

(4) Credentialing procedures;

(5) Grievance and appeals procedures;

(6) Data reporting requirements including requirements for timely notice of changes in practice, such as discontinuance of accepting new patients;

(7) Confidentiality requirements; and

(8) Any applicable federal or state programs.

(i) A health carrier shall not offer an inducement to a provider that would encourage or otherwise motivate the provider not to provide medically necessary services to a covered person.

(j) A health carrier shall not prohibit a participating provider from discussing any specific or all treatment options with covered persons irrespective of the health carrier's position on the treatment options, or from advocating on behalf of covered persons within the utilization review or grievance or appeals processes established by the carrier or a person contracting with the carrier or in accordance with any rights or remedies available under applicable state or federal law.

(k) Every contract between a health carrier and a participating provider shall require the provider to make health records available to appropriate state and federal authorities involved in assessing the quality of care or investigating the grievances or complaints of covered persons and to comply with the applicable state and federal laws related to the confidentiality of medical and health records and the covered person's right to see, obtain copies of, or amend the person's medical and health records.

(l) The departure of a provider from a network shall be subject to the following requirements:

(1) A health carrier and participating provider shall provide at least sixty days' written notice to each other before the provider is removed or leaves the network without cause;

(2) The health carrier shall make a good faith effort to provide written notice of a provider's removal or leaving the network within thirty days of receipt or issuance of a notice provided in accordance with paragraph (1) to all covered persons who are patients seen on a regular basis by the provider who is being removed or leaving the network, irrespective of whether the removal or leaving the network is for cause or without cause;

(3) When the provider being removed or leaving the network is a primary care professional, all covered persons who are patients of that primary care professional shall also be notified. When the provider either gives or receives the notice in accordance with paragraph (1), the provider shall supply the health carrier with a list of those patients of the provider that are covered by a plan of the health carrier;

(4) When a provider leaves or is removed from the network, a health carrier shall establish reasonable procedures to transition all covered persons who are in an active course of treatment to a participating provider in a manner that provides for continuity of care;

(5) The health carrier shall provide the notice required under paragraph (1) and shall make available to all covered persons a list of available participating providers in the same geographic area who are of the same provider type and information about how the covered persons may request continuity of care as provided under paragraph (6);

(6) The continuity of care procedures shall provide that:

(A) Any request for continuity of care shall be made to the health carrier by the covered person or the covered person's authorized representative;

(B) Requests for continuity of care shall be reviewed by the health carrier's medical director after consultation with the treating provider for patients who are under the care of a provider who has not been removed or left the network for cause and who meet the criteria specified under the definition of:

(i) Active course of treatment;

(ii) Life-threatening health condition; or

(iii) Serious acute condition;

(C) Any decisions made with respect to a request for continuity of care shall be subject to the health benefit plan's internal and external grievance and appeal processes in accordance with applicable state or federal law or regulations;

(D) The continuity of care period for covered persons who are in their second or third trimester of pregnancy shall extend through the postpartum period; and

(E) The continuity of care period for covered persons who are undergoing an active course of treatment shall extend through the earliest of:

(i) The termination of the course of treatment by the covered person or the treating provider;

(ii) Ninety days, unless the medical director determines that a longer period is necessary;

(iii) The date that care is successfully transitioned to a participating provider;

(iv) The date that benefit limitations under the plan are met or exceeded; or

(v) The date that care is not medically necessary; and

(7) A continuity of care request shall only be granted when:

(A) The provider agrees in writing to accept the same payment from and abide by the same terms and conditions with respect to the health carrier for that patient as provided in the original provider contract; and

(B) The provider agrees in writing not to seek any payment from the covered person for any amount for which the covered person would not have been responsible if the physician or provider were still a participating provider.

(m) The rights and responsibilities under a contract between a health carrier and a participating provider shall not be assigned or delegated by either party without the prior written consent of the other party.

(n) A health carrier shall be responsible for ensuring that a participating provider furnishes covered benefits to all covered persons without regard to the covered person's enrollment in the plan as a private purchaser of the plan or as a participant in publicly financed programs of health care services. This subsection shall not apply to circumstances when the provider should not render services due to limitations arising from lack of training, experience, skill, or licensing restrictions.

(o) A health carrier shall notify participating providers of their obligations, if any, to collect applicable coinsurance, copayments, or deductibles from covered persons pursuant to the evidence of coverage, or of the providers' obligations, if any, to notify covered persons of their personal financial obligations for noncovered services.

(p) A health carrier shall not penalize a provider because the provider, in good faith, reports to state or federal authorities any act or practice by the health carrier that jeopardizes patient health or welfare.

(q) A health carrier shall establish procedures for resolution of administrative, payment, or other disputes between providers and the health carrier.

(r) A contract between a health carrier and a provider shall not contain provisions that conflict with the network plan or this article.

(s) A contract between a health carrier and a provider shall be subject to the following requirements:

(1) At the time the contract is signed, the health carrier and, if appropriate, the intermediary shall timely notify the participating provider of all provisions and other documents incorporated by reference in the contract;

(2) While the contract is in force, the carrier shall timely notify the participating provider of any changes to those provisions or documents that would result in material changes in the contract;

(3) The health carrier shall timely inform the provider of the provider's network participation status on any health benefit plan in which the carrier has included the provider as a participating provider; and

(4) For purposes of this subsection, the contract shall define what is considered timely notice and what is considered a material change. [L 2017, c 191, pt of §1; am L 2019, c 70, §26]