[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Rules and Regulations]
[Pages 44491-44493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18820]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
[TD 9532]
RIN 1545-BK30
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2590
RIN 1210-AB45
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 147
[CMS-9993-CN]
RIN 0938-AQ66
Group Health Plans and Health Insurance Issuers: Rules Relating
to Internal Claims and Appeals and External Review Processes;
Correction
AGENCIES: Internal Revenue Service, Department of the Treasury;
Employee Benefits Security Administration, Department of Labor; Centers
for Medicare & Medicaid Services, Department of Health and Human
Services.
ACTION: Correction of amendment to interim final rules with request for
comments.
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SUMMARY: This document corrects technical errors that appeared in the
June 24, 2011 amendment to the interim final rules (76 FR 37208)
entitled, ``Group Health Plans and Health Insurance Issuers: Rules
Relating to Internal Claims and Appeals and External Review
Processes.''
DATES: Effective Date: July 22, 2011.
FOR FURTHER INFORMATION CONTACT: Ellen Kuhn, Centers for Medicare &
Medicaid Services, Department of Health and Human Services, at (301)
492-4263; Amy Turner, Employee Benefits Security Administration,
Department of Labor, at (202) 693-8335; or Karen Levin, Internal
Revenue Service, Department of the Treasury, at (202) 622-6080.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
In FR Doc. 2011-15890 of June 24, 2011 (76 FR 37208), there were
technical errors that are identified in the ``Summary of Errors''
section and corrected in the ``Correction of Errors'' section below.
The provisions in this correction notice are effective as if they had
been included in the June 24, 2011 interim final rule with request for
comments entitled, ``Group Health Plans and Health Insurance Issuers:
Rules Relating to Internal Claims and Appeals and External Review
Processes.'' Accordingly, the corrections are effective July 22, 2011.
B. Regulations Overview
On July 23, 2010, the Departments of Health and Human Services
(HHS), Labor (DOL), and the Treasury (collectively, the Departments)
issued interim final rules implementing section 2719 of the Public
Health Service (PHS) Act (75 FR 43330) (July 2010 regulations),
regarding internal claims and appeals and external review processes for
group health plans and health insurance issuers offering coverage in
the group and individual markets.\1\ The Departments issued an
amendment to the interim final rules that was published in the Federal
Register on June 24, 2011 (76 FR 37208) (June 2011 amendments). Below,
we summarize the errors in the June 2011 amendments and describe the
corrections we are making in this notice.
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\1\ The requirements of PHS Act section 2719 and the July 2010
regulations do not apply to health plans grandfathered under section
1251 of the Affordable Care Act.
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II. Summary of Errors
A. Error in the Preamble
In the FOR FURTHER INFORMATION CONTACT section of the June 2011
amendments (page 37208), we listed an incorrect telephone number for
Ellen Kuhn, Centers for Medicare & Medicaid Services, Department of
Health and Human Services. We are correcting the telephone number.
[[Page 44492]]
B. Errors in the Regulations Text
In the June 2011 amendments (page 37231), we inadvertently made a
typographical error in the DOL regulations text that could cause
confusion. The text pertains to the effective date of the suspension of
the general rule defining the scope of what is appealable in external
review. We are correcting this typographical error. We note that the
regulation text for HHS and the Department of the Treasury were correct
and therefore are unchanged.
In the joint preamble to the June 2011 amendments (pages 37209
through 37215), we explain that the July 2010 regulations established
requirements for group health plans and health insurance issuers
offering both individual and group health coverage and that the June
2011 amendments were modifying those requirements. However, the
regulations text in the June 2011 amendments only reflected the changes
to the group market provisions, which appear in all three Departments'
regulations (pages 37228 through 37229; 37230 through 37231; and 37232
through 37233). Requirements that apply to the individual market only
appear in HHS regulations, and conforming amendments to those
requirements were inadvertently omitted from the regulation text of the
June 2011 amendments. In the regulations text at 45 CFR 147.136, HHS is
correcting this technical error. Specifically, we are reorganizing
Sec. 147.136(b)(3)(ii) and adding language to clarify that these
amendments apply to health insurance issuers offering individual health
coverage. These changes relate to internal claims and appeals processes
requirements for individual health insurance issuers in the HHS
regulations text. We note that the regulations text for the DOL and the
Department of the Treasury were correct and therefore are unchanged.
III. Waiver of Proposed Rulemaking and Waiver of the Delay in Effective
Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 551 et
seq.), while a general notice of proposed rulemaking and an opportunity
for public comment is generally required before the promulgation of
regulations, this is not required when an agency, for good cause, finds
that notice and public comment are impracticable, unnecessary, or
contrary to the public interest, and incorporates a statement of the
reasons for that finding in the notice.
The APA also generally requires that a final rule be effective no
sooner than 30 days after the date of publication in the Federal
Register. This 30-day delay in effective date can be waived, however,
if an agency finds good cause why the effective date should not be
delayed, and the agency incorporates a statement of the findings and
its reasons in the rule issued.
This document merely corrects technical errors made in the June
2011 amendments published in the Federal Register on June 24, 2011 (76
FR 37208), which will be effective on July 22, 2011. The corrections
contained in this document are consistent with and do not make
substantive changes to the policies adopted in the June 2011
amendments. The preamble to the June 2011 amendments correctly refers
to and discusses the substance of the sections affected by this
technical correction. Therefore, we find for good cause that it is
unnecessary and would be contrary to the public interest to undertake
further notice and comment procedures to incorporate these corrections.
Furthermore, we note that the June 2011 amendments were published, for
good cause, as interim final rules, and that all the reasons stated in
the June 2011 amendments for waiving notice and comment procedures with
respect to the June 2011 amendments are applicable to this correction
notice.
We are also waiving the 30-day delay in effective date for these
corrections. We believe that it is in the public interest to ensure
that the June 2011 amendments setting forth requirements for group
health plans and health insurance issuers relating to internal claims
and appeals and external review processes accurately states our
policies as of the date they take effect. Therefore, we find that
delaying the effective date of these corrections beyond the effective
date of the June 2011 amendments would be contrary to the public
interest. In doing so, we find good cause to waive the 30-day delay in
the effective date.
IV. Correction of Errors
In FR Doc. 2011-15890 of June 24, 2011 (76 FR 37208), make the
following corrections:
A. Correction to the Preamble
On page 37208, in the third column, under the FOR FURTHER
INFORMATION CONTACT section, the telephone number ``(301) 492-4100''
for Ellen Kuhn, Centers for Medicare & Medicaid Services, Department of
Health and Human Services, is corrected to read ``(301) 492-4263.''
B. Correction to the Regulations Text
29 CFR 2590.715-2719 [Corrected]
1. On page 37231, in the third column, in paragraph (d)(1)(ii), the
phrase ``with respect to claims for which external review has not been
initiated before the effective date of this paragraph (d)(1) (September
20, 2011),'' is corrected to read ``with respect to claims for which
external review has not been initiated before September 20, 2011,''.
45 CFR 147.136 [Corrected]
2. On page 37232, in the third column, after the amendatory
instruction 3. and before the phrase ``The revisions and additions read
as follows'', add the following amendatory instructions to read as
follows:
``4. Revising paragraphs (b)(3)(ii)(B), (b)(3)(ii)(E)(1), and
(b)(3)(ii)(F).''
``5. Redesignating paragraphs (b)(3)(ii)(E)(2), (b)(3)(ii)(E)(3),
and (b)(3)(ii)(E)(4), as (b)(3)(ii)(E)(3), (b)(3)(ii)(E)(4), and
(b)(3)(ii)(E)(5), respectively.''
``6. Adding a new paragraph (b)(3)(ii)(E)(2).''
3. On page 37233, in the second column, after the five asterisks
``* * * * *'' and before the paragraph ``(c) * * *,'' add the
following:
(b) * * *
(3) * * *
(ii) * * *
(B) Expedited notification of benefit determinations involving
urgent care. The requirements of 29 CFR 2560.503-1(f)(2)(i) (which
generally provide, among other things, in the case of urgent care
claims for notification of the issuer's benefit determination (whether
adverse or not) as soon as possible, taking into account the medical
exigencies, but not later than 72 hours after receipt of the claim)
continue to apply to the issuer. For purposes of this paragraph
(b)(3)(ii)(B), a claim involving urgent care has the meaning given in
29 CFR 2560.503-1(m)(1), as determined by the attending provider, and
the issuer shall defer to such determination of the attending provider.
* * * * *
(E) * * *
(1) The issuer must ensure that any notice of adverse benefit
determination or final internal adverse benefit determination includes
information sufficient to identify the claim involved (including the
date of service, the name of the health care provider, the claim amount
(if applicable), and a statement describing the availability, upon
request, of the diagnosis code and its corresponding meaning, and the
[[Page 44493]]
treatment code and its corresponding meaning).
(2) The issuer must provide to participants and beneficiaries, as
soon as practicable, upon request, the diagnosis code and its
corresponding meaning, and the treatment code and its corresponding
meaning, associated with any adverse benefit determination or final
internal adverse benefit determination. The issuer must not consider a
request for such diagnosis and treatment information, in itself, to be
a request for an internal appeal under this paragraph (b) or an
external review under paragraphs (c) and (d) of this section.
* * * * *
(F) Deemed exhaustion of internal claims and appeals processes--(1)
In the case of an issuer that fails to adhere to all the requirements
of this paragraph (b)(3) with respect to a claim, the claimant is
deemed to have exhausted the internal claims and appeals process of
this paragraph (b), except as provided in paragraph (b)(3)(ii)(F)(2) of
this section. Accordingly, the claimant may initiate an external review
under paragraph (c) or (d) of this section, as applicable. The claimant
is also entitled to pursue any available remedies under State law, as
applicable, on the basis that the issuer has failed to provide a
reasonable internal claims and appeals process that would yield a
decision on the merits of the claim.
(2) Notwithstanding paragraph (b)(3)(ii)(F)(1) of this section, the
internal claims and appeals process of this paragraph (b) will not be
deemed exhausted based on de minimis violations that do not cause, and
are not likely to cause, prejudice or harm to the claimant so long as
the issuer demonstrates that the violation was for good cause or due to
matters beyond the control of the issuer and that the violation
occurred in the context of an ongoing, good faith exchange of
information between the issuer and the claimant. This exception is not
available if the violation is part of a pattern or practice of
violations by the issuer. The claimant may request a written
explanation of the violation from the issuer, and the issuer must
provide such explanation within 10 days, including a specific
description of its bases, if any, for asserting that the violation
should not cause the internal claims and appeals process of this
paragraph (b) to be deemed exhausted. If an external reviewer or a
court rejects the claimant's request for immediate review under
paragraph (b)(3)(ii)(F)(1) of this section on the basis that the issuer
met the standards for the exception under this paragraph
(b)(3)(ii)(F)(2), the claimant has the right to resubmit and pursue the
internal appeal of the claim. In such a case, within a reasonable time
after the external reviewer or court rejects the claim for immediate
review (not to exceed 10 days), the issuer shall provide the claimant
with notice of the opportunity to resubmit and pursue the internal
appeal of the claim. Time periods for re-filing the claim shall begin
to run upon claimant's receipt of such notice.
Signed this 15th day of July 2011.
Diane O. Williams,
Federal Register Liaison, Internal Revenue Service, Department of the
Treasury.
Signed this 20th day of July 2011.
Daniel J. Maguire,
Director, Office of Health Plan Standards and Compliance Assistance,
Employee Benefits Security Administration, Department of Labor.
Signed this 20th day of July 2011.
Dawn Smalls,
Executive Secretary to the Department, Department of Health and Human
Services.
[FR Doc. 2011-18820 Filed 7-22-11; 4:15 pm]
BILLING CODE 4820-01-P