§432E-6  External review procedure. (a)  After exhausting all internal complaint and appeal procedures available,an enrollee, or the enrollee's treating provider or appointed representative,may file a request for external review of a managed care plan's final internaldetermination to a three-member review panel appointed by the commissionercomposed of a representative from a managed care plan not involved in thecomplaint, a provider licensed to practice and practicing medicine in Hawaiinot involved in the complaint, and the commissioner or the commissioner'sdesignee in the following manner:

(1)  The enrollee shall submit a request for externalreview to the commissioner within sixty days from the date of the finalinternal determination by the managed care plan;

(2)  The commissioner may retain:

(A)  Without regard to chapter 76, anindependent medical expert trained in the field of medicine most appropriatelyrelated to the matter under review.  Presentation of evidence for this purposeshall be exempt from section 91-9(g); and

(B)  The services of an independent revieworganization from an approved list maintained by the commissioner;

(3)  Within seven days after receipt of the requestfor external review, a managed care plan or its designee utilization revieworganization shall provide to the commissioner or the assigned independentreview organization:

(A)  Any documents or information used inmaking the final internal determination including the enrollee's medicalrecords;

(B)  Any documentation or written informationsubmitted to the managed care plan in support of the enrollee's initialcomplaint; and

(C)  A list of the names, addresses, andtelephone numbers of each licensed health care provider who cared for theenrollee and who may have medical records relevant to the external review;

provided that where an expedited appeal isinvolved, the managed care plan or its designee utilization review organizationshall provide the documents and information within forty-eight hours of receiptof the request for external review.

Failure by the managed care plan or itsdesignee utilization review organization to provide the documents andinformation within the prescribed time periods shall not delay the conduct ofthe external review.  Where the plan or its designee utilization revieworganization fails to provide the documents and information within theprescribed time periods, the commissioner may issue a decision to reverse thefinal internal determination, in whole or part, and shall promptly notify theindependent review organization, the enrollee, the enrollee's appointedrepresentative, if applicable, the enrollee's treating provider, and themanaged care plan of the decision;

(4)  Upon receipt of the request for external reviewand upon a showing of good cause, the commissioner shall appoint the members ofthe external review panel and shall conduct a review hearing pursuant tochapter 91.  If the amount in controversy is less than $500, the commissionermay conduct a review hearing without appointing a review panel;

(5)  The review hearing shall be conducted as soon aspracticable, taking into consideration the medical exigencies of the case;provided that:

(A)  The hearing shall be held no later thansixty days from the date of the request for the hearing; and

(B)  An external review conducted as anexpedited appeal shall be determined no later than seventy-two hours afterreceipt of the request for external review;

(6)  After considering the enrollee's complaint, themanaged care plan's response, and any affidavits filed by the parties, thecommissioner may dismiss the request for external review if it is determinedthat the request is frivolous or without merit; and

(7)  The review panel shall review every finalinternal determination to determine whether the managed care plan involvedacted reasonably.  The review panel and the commissioner or the commissioner'sdesignee shall consider:

(A)  The terms of the agreement of theenrollee's insurance policy, evidence of coverage, or similar document;

(B)  Whether the medical director properlyapplied the medical necessity criteria in section 432E-1.4 in making the finalinternal determination;

(C)  All relevant medical records;

(D)  The clinical standards of the plan;

(E)  The information provided;

(F)  The attending physician's recommendations;and

(G)  Generally accepted practice guidelines.

The commissioner, upon a majority vote of thepanel, shall issue an order affirming, modifying, or reversing the decisionwithin thirty days of the hearing.

(b)  The procedure set forth in this sectionshall not apply to claims or allegations of health provider malpractice,professional negligence, or other professional fault against participatingproviders.

(c)  No person shall serve on the review panelor in the independent review organization who, through a familial relationshipwithin the second degree of consanguinity or affinity, or for other reasons,has a direct and substantial professional, financial, or personal interest in:

(1)  The plan involved in the complaint, including anofficer, director, or employee of the plan; or

(2)  The treatment of the enrollee, including but notlimited to the developer or manufacturer of the principal drug, device,procedure, or other therapy at issue.

(d)  Members of the review panel shall begranted immunity from liability and damages relating to their duties under thissection.

(e)  An enrollee may be allowed, at thecommissioner's discretion, an award of a reasonable sum for attorney's fees andreasonable costs incurred in connection with the external review under thissection, unless the commissioner in an administrative proceeding determinesthat the appeal was unreasonable, fraudulent, excessive, or frivolous.

(f)  Disclosure of an enrollee's protectedhealth information shall be limited to disclosure for purposes relating to theexternal review. [L 1998, c 178, pt of §2; am L 1999, c 137, §6; am L 2000, c250, §5 and c 253, §150; am L 2004, c 122, §93]

 

Law Journals and Reviews

 

  Erisa and Federal Preemption Following Rush Prudential HMO,Inc. v. Moran:  Preemptive Effects Felt in Hawai‘i.  25 UH L. Rev. 593.

  Hawai‘i's Patients' Bill of  Rights:  Saving the Right toExternal Review.  28 UH L. Rev. 295.

 

Case Notes

 

  Because the Employee Retirement Income Security Act of 1974(ERISA) preempts this section and Hawaii's external review law is thereforeunenforceable, the commissioner did not have jurisdiction to considerclaimant's claim and award claimant attorneys' fees and costs; trial court thusalso erred in affirming claimant attorneys' fees and costs.  106 H. 21, 100P.3d 952.