§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 internal
determination to a three-member review panel appointed by the commissioner
composed of a representative from a managed care plan not involved in the
complaint, a provider licensed to practice and practicing medicine in Hawaii
not involved in the complaint, and the commissioner or the commissioner's
designee in the following manner:



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



(2)  The commissioner may retain:



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



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



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



(A)  Any documents or information used in
making the final internal determination including the enrollee's medical
records;



(B)  Any documentation or written information
submitted to the managed care plan in support of the enrollee's initial
complaint; and



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



provided that where an expedited appeal is
involved, the managed care plan or its designee utilization review organization
shall provide the documents and information within forty-eight hours of receipt
of the request for external review.



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



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



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



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



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



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



(7)  The review panel shall review every final
internal determination to determine whether the managed care plan involved
acted reasonably.  The review panel and the commissioner or the commissioner's
designee shall consider:



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



(B)  Whether the medical director properly
applied the medical necessity criteria in section 432E-1.4 in making the final
internal 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 the
panel, shall issue an order affirming, modifying, or reversing the decision
within thirty days of the hearing.



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



(c)  No person shall serve on the review panel
or in the independent review organization who, through a familial relationship
within 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 an
officer, director, or employee of the plan; or



(2)  The treatment of the enrollee, including but not
limited to the developer or manufacturer of the principal drug, device,
procedure, or other therapy at issue.



(d)  Members of the review panel shall be
granted immunity from liability and damages relating to their duties under this
section.



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



(f)  Disclosure of an enrollee's protected
health information shall be limited to disclosure for purposes relating to the
external review. [L 1998, c 178, pt of §2; am L 1999, c 137, §6; am L 2000, c
250, §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 to
External 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 therefore
unenforceable, the commissioner did not have jurisdiction to consider
claimant's claim and award claimant attorneys' fees and costs; trial court thus
also erred in affirming claimant attorneys' fees and costs.  106 H. 21, 100
P.3d 952.