§432E-39 Minimum qualifications for independent review organizations. (a) To be eligible for approval under this part to conduct external reviews, an independent review organization shall have and maintain written policies and procedures that govern all aspects of both the standard external review process and the expedited external review process set forth in this part that include, at minimum:

(1) A quality assurance mechanism in place that ensures:

(A) That external reviews are conducted within the specified time frames of this part and required notices are provided in a timely manner;

(B) The selection of qualified and impartial clinical reviewers to conduct external reviews on behalf of the independent review organization and suitable matching of reviewers to specific cases; provided that an independent review organization shall employ or contract with an adequate number of clinical reviewers to meet this objective;

(C) Confidentiality of medical and treatment records and clinical review criteria; and

(D) That any person employed by or under contract with the independent review organization complies with the requirements of this part;

(2) Toll-free telephone, facsimile, and e-mail capabilities to receive information related to external reviews twenty-four hours a day, seven days per week that are capable of accepting, recording, or providing appropriate instruction to incoming telephone callers during other than normal business hours and facilitating necessary communication under this part; and

(3) An agreement to maintain and provide to the commissioner the information required by this part.

(b) Each clinical reviewer assigned by an independent review organization to conduct an external review shall be a physician or other appropriate health care provider who:

(1) Is an expert in the treatment of the medical condition that is the subject of the external review;

(2) Is knowledgeable about the recommended health care service and treatment through recent or current actual clinical experience treating patients with the same or similar medical condition at issue in the external review;

(3) Holds a non-restricted license in a state of the United States and, for physicians, a current certification by a recognized American Medical Specialty Board in the area or areas appropriate to the subject of the external review; and

(4) Has no history of disciplinary actions or sanctions, including loss of staff privileges or participation restrictions, imposed or pending by any hospital, governmental agency or unit, or regulatory body that raises a substantial question as to the clinical reviewer's physical, mental, or professional competence or moral character.

(c) An independent review organization shall not own or control, be a subsidiary of, or in any way be owned or controlled by, or exercise control over a health carrier, health benefit plan, a national, state, or local trade association of health benefit plans, or a national, state, or local trade association of health care providers.

(d) To be eligible to conduct an external review of a specified case, neither the independent review organization selected to conduct the external review nor any clinical reviewer assigned by the independent review organization to conduct the external review shall have a material professional, familial, or financial conflict of interest with any of the following:

(1) The health carrier that is the subject of the external review;

(2) The enrollee whose treatment is the subject of the external review, the enrollee's appointed representative, or the enrollee's immediate family;

(3) Any officer, director, or management employee of the health carrier that is the subject of the external review;

(4) The health care provider, the health care provider's medical group, or independent practice association recommending the health care service or treatment that is the subject of the external review;

(5) The facility at which the recommended health care service or treatment would be provided;

(6) The developer or manufacturer of the principal drug, device, procedure, or other therapy recommended for the enrollee whose treatment is the subject of the external review; or

(7) The health benefit plan that is the subject of the external review, the plan administrator, or any fiduciary or employee of the plan.

The commissioner may determine that no material professional, familial, or financial conflict of interest exists based on the specific characteristics of a particular relationship or connection that creates an apparent professional, familial, or financial conflict of interest.

(e) An independent review organization that is accredited by a nationally-recognized private accrediting entity that has independent review accreditation standards that the commissioner has determined are equivalent to or exceed the minimum qualifications of this section shall be presumed to be in compliance with this section to be eligible for approval under this part.

The commissioner shall review, initially upon approval of an accredited independent review organization and periodically during the time that the independent review organization remains approved pursuant to this section, the accreditation standards of the nationally-recognized private accrediting entity to determine whether the entity's standards are, and continue to be equivalent to, or exceed the minimum qualifications established under this section; provided that a review conducted by the National Association of Insurance Commissioners shall satisfy the requirements of this section.

Upon request of the commissioner, a nationally-recognized private accrediting entity shall make its current independent review organization accreditation standards available to the commissioner or the National Association of Insurance Commissioners in order for the commissioner to determine if the entity's standards are equivalent to or exceed the minimum qualifications established under this section. The commissioner may exclude any private accrediting entity that is not reviewed by the National Association of Insurance Commissioners.

(f) An independent review organization shall establish and maintain written procedures to ensure that it is unbiased in addition to any other procedures required under this section. [L 2011, c 230, pt of §2]