Title 15. Health Insurance — Subtitle 10B. Private Review Agents

“Adverse decision” means a utilization review determination made by a private review agent that a proposed or delivered health care service:

“Adverse decision” includes a utilization review determination based on a prior authorization or step therapy requirement.

“Adverse decision” does not include a decision concerning a subscriber’s status as a member.

“Employee assistance program” means a health care service plan that, in accordance with a contract with an employer or labor union:

“Employee assistance program” does not include a health care service plan operated by a hospital solely for employees, or members of an employee’s family, of that hospital.

“Grievance” means a protest filed by a patient or a health care provider on behalf of a patient with a private review agent through the private review agent’s internal grievance process regarding an adverse decision concerning a patient.

“Grievance” does not include a verbal request for reconsideration of a utilization review determination.

a hospital as defined in § 19–301 of the Health – General Article;

a related institution as defined in § 19–301 of the Health – General Article;

an ambulatory surgical facility or center which is any entity or part thereof that operates primarily for the purpose of providing surgical services to patients not requiring hospitalization and seeks reimbursement from third party payors as an ambulatory surgical facility or center;

a facility that is organized primarily to help in the rehabilitation of disabled individuals;

a home health agency as defined in § 19–401 of the Health – General Article;

a hospice as defined in § 19–901 of the Health – General Article;

a facility that provides radiological or other diagnostic imagery services;

a medical laboratory as defined in § 17–201 of the Health – General Article; or

an alcohol abuse and drug abuse treatment program as defined in § 8–403 of the Health – General Article.

an individual who:

a hospital, as defined in § 19–301 of the Health – General Article.

provides testing, diagnosis, or treatment of a human disease or dysfunction;

dispenses drugs, medical devices, medical appliances, or medical goods for the treatment of a human disease or dysfunction; or

provides any other care, service, or treatment of disease or injury, the correction of defects, or the maintenance of the physical and mental well–being of human beings.

a nonhospital–affiliated person or entity performing utilization review that is either affiliated with, under contract with, or acting on behalf of:

any person or entity including a hospital–affiliated person performing utilization review for the purpose of making claims or payment decisions for health care services on behalf of the employer’s or labor union’s health insurance plan under an employee assistance program for employees other than the employees employed by:

5 percent of the whole; or

$5,000.

the applicant has obtained utilization management accreditation from an approved accrediting organization as determined by the Commissioner;

the approved accrediting organization has requirements that meet or exceed the particular requirement in this subtitle; and

the applicant demonstrates that the applicant meets or exceeds the particular requirement under this subtitle.

The Commissioner, after consultation with payors, including the Health Insurance Association of America, the League of Life and Health Insurers of Maryland, and the Maryland Association of Health Plans, and providers of health care, including the MHA: the Association of Maryland Hospitals and Health Systems, CareFirst BlueCross BlueShield, the Medical and Chirurgical Faculty of Maryland, and licensed or certified providers of treatment for a mental illness, emotional disorder, or a drug abuse or alcohol abuse disorder, shall adopt regulations to implement the provisions of this subtitle.

submit an application to the Commissioner; and

pay to the Commissioner the application fee established by the Commissioner through regulation.

be on a form and accompanied by any supporting documentation that the Commissioner requires; and

be signed and verified by the applicant.

a utilization review plan that includes:

the type and qualifications of the personnel either employed or under contract to perform the utilization review;

a copy of the private review agent’s internal grievance process if a carrier delegates its internal grievance process to the private review agent in accordance with § 15–10A–02(l) of this title;

the procedures and policies to ensure that a representative of the private review agent is reasonably accessible to patients and health care providers 7 days a week, 24 hours a day in this State including having a direct telephone number and monitored e–mail address as required in subsection (e) of this section;

if applicable, the procedures and policies to ensure that a representative of the private review agent is accessible to health care providers to make all determinations on whether to authorize or certify an emergency inpatient admission, or an admission for residential crisis services as defined in § 15–840 of this title, for the treatment of a mental, emotional, or substance abuse disorder within 2 hours after receipt of the information necessary to make the determination;

the policies and procedures to ensure that all applicable State and federal laws to protect the confidentiality of individual medical records are followed;

a copy of the materials designed to inform applicable patients and providers of the requirements of the utilization review plan;

a list of the third party payors for which the private review agent is performing utilization review in this State;

the policies and procedures to ensure that the private review agent has a formal program for the orientation and training of the personnel either employed or under contract to perform the utilization review;

a list of the persons involved in establishing the specific criteria and standards to be used in conducting utilization review, including each person’s board certification or practice specialty, licensure category, and title within the person’s organization; and

certification by the private review agent that the criteria and standards to be used in conducting utilization review are generally recognized by health care providers practicing in the relevant clinical specialties and are:

post on the member’s and provider’s pages of its website or the carrier’s website the specific criteria and standards to be used in conducting utilization review of proposed or delivered services and any subsequent revisions, modifications, or additions to the specific criteria and standards to be used in conducting utilization review of proposed or delivered services; and

on the request of a person, including a health care facility, provide a copy of the information specified under item (1) of this subsection to the person making the request.

ownership, medical director, or chief executive officer within 30 days of the date of the change;

the name, address, or telephone number of the private review agent within 30 days of the date of the change; or

the private review agent’s scope of responsibility under a contract.

A private review agent shall:

The telephone number and e–mail address shall be prominently displayed on the notices required under § 15–10A–02(f) and (i) of this title.

In this section the following words have the meanings indicated.

“Artificial intelligence” means an engineered or machine–based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

“Carrier” means:

a carrier that:

a pharmacy benefits manager or private review agent that:

an artificial intelligence, algorithm, or other software tool bases its determinations on:

an artificial intelligence, algorithm, or other software tool does not base its determinations solely on a group dataset;

the criteria and guidelines for using an artificial intelligence, algorithm, or other software tool for making determinations comply with the requirements of this title;

an artificial intelligence, algorithm, or other software tool does not replace the role of a health care provider in the determination process under § 15–10B–07 of this subtitle;

the use of an artificial intelligence, algorithm, or other software tool does not result in unfair discrimination;

an artificial intelligence, algorithm, or other software tool is fairly and equitably applied, including in accordance with any applicable regulations and guidance issued by the federal Department of Health and Human Services;

an artificial intelligence, algorithm, or other software tool is open to inspection for audit or compliance reviews by the Commissioner;

written policies and procedures are included in the utilization plan submitted under § 15–10B–05 of this subtitle, including how an artificial intelligence, algorithm, or other software tool will be used and what oversight will be provided;

the performance, use, and outcomes of an artificial intelligence, algorithm, or other software tool are reviewed and revised, if necessary and at least on a quarterly basis, to maximize accuracy and reliability;

patient data is not used beyond its intended and stated purpose, consistent with the federal Health Insurance Portability and Accountability Act of 1996, as applicable; and

an artificial intelligence, algorithm, or other software tool does not directly or indirectly cause harm to an enrollee.

Except as otherwise provided in this subsection, a private review agent shall:

After receipt of the initial request for health care services and confirming through a complete review of information already submitted by the health care provider, if the private review agent determines that the private review agent does not have sufficient information to make a determination, the private review agent shall promptly, but not later than 3 calendar days after receipt of the initial request, inform the health care provider that additional information must be provided by specifying:

make all determinations on whether to authorize or certify an inpatient admission, or an admission for residential crisis services as defined in § 15–840 of this title, within 2 hours after receipt of the information necessary to make the determination;

if additional information is needed, promptly request the specific information needed, including any lab or diagnostic test or other medical information; and

promptly notify the health care provider of the determination.

For a step therapy exception request submitted electronically in accordance with a process established under § 15–142(f) of this title or a prior authorization request submitted electronically for pharmaceutical services, a private review agent shall make a determination:

If additional information is needed to make a determination after confirming through a complete review of the information already submitted by the health care provider, the private review agent shall request the information promptly, but not later than 3 calendar days after receipt of the initial request, by specifying:

A private review agent shall initiate the expedited procedure for an emergency case if the patient or the patient’s representative requests or if the health care provider attests that the services are necessary to treat a condition or illness that, without immediate medical attention, would:

If an initial determination is made by a private review agent not to authorize or certify a health care service and the health care provider believes the determination warrants an immediate reconsideration, a private review agent shall provide the health care provider the opportunity to speak with the physician that rendered the determination, by telephone on an expedited basis, within a period of time not to exceed 24 hours of the health care provider seeking the reconsideration.

If the physician is unable to immediately speak with the health care provider seeking the reconsideration, the physician shall provide the health care provider with the following contact information for the health care provider to use to contact the physician:

the patient’s insurance status; and

if applicable, the private review agent’s emergency admission notification requirements.

Subject to paragraph (2) of this subsection, a private review agent may not render an adverse decision as to an admission of a patient during the first 24 hours after admission when:

A private review agent may not render an adverse decision as to an admission of a patient to a hospital for up to 72 hours, as determined to be medically necessary by the patient’s treating physician, when:

A private review agent that requires a health care provider to submit a treatment plan in order for the private review agent to conduct utilization review of proposed or delivered services for the treatment of a mental illness, emotional disorder, or a substance abuse disorder:

A uniform treatment plan form submitted under the provisions of this subsection:

Except as provided in paragraphs (2) and (3) of this subsection, all adverse decisions shall be made by a licensed physician, or a panel of other appropriate health care service reviewers with at least one physician on the panel, who is:

When the health care service under review is a mental health or substance abuse service, the adverse decision shall be made by a licensed physician, or a panel of other appropriate health care service reviewers with at least one licensed physician, selected by the private review agent who:

When the health care service under review is a dental service, the adverse decision shall be made by a licensed dentist, or a panel of other appropriate health care service reviewers with at least one licensed dentist on the panel who is knowledgeable about the requested health care service or treatment through actual clinical experience.

the information submitted to the private review agent regarding the services to be delivered to the patient was fraudulent or intentionally misrepresentative;

critical information requested by the private review agent regarding services to be delivered to the patient was omitted such that the private review agent’s determination would have been different had the agent known the critical information; or

the planned course of treatment for the patient that was approved by the private review agent was not substantially followed by the provider.

48 hours of inpatient hospitalization care following an uncomplicated vaginal delivery; and

96 hours of inpatient hospitalization care following an uncomplicated cesarean section.

The private review agent or health maintenance organization may authorize a shorter length of stay than that provided in subsection (c) of this section if the mother, in consultation with her attending provider, decides that less time is needed for recovery.

For a mother and newborn child who have a hospital stay shorter in length than that provided under subsection (c) of this section, the private review agent or health maintenance organization performing utilization review shall authorize:

For a mother and newborn child who remain in the hospital for at least the period of time provided under subsection (c) of this section, the private review agent or health maintenance organization performing utilization review shall authorize a home visit as may be prescribed by the attending provider.

A home visit under paragraph (2) or (3) of this subsection shall:

The private review agent or health maintenance organization may not require additional documentation from, require additional utilization review of, or otherwise provide financial disincentives for an attending provider who orders care for which coverage is required to be provided under this section, § 19-703 of the Health - General Article, or § 15-811 of this title.

The private review agent, hospital, or health maintenance organization may not deny, limit, or otherwise impair the participation of an attending provider under a contract or any privilege granted an attending provider who advocates more than 48 hours of inpatient hospital care following a complicated vaginal delivery or more than 96 hours of inpatient hospital care following a complicated cesarean section.

a licensed physician who is board certified or eligible in the same specialty as the treatment under review and knowledgeable about the requested health care service or treatment through actual clinical experience; or

a panel of other appropriate health care service reviewers with at least one licensed physician on the panel who is board certified or eligible in the same specialty as the treatment under review and knowledgeable about the requested health care service or treatment through actual clinical experience;

a licensed physician who:

a panel of other appropriate health care service reviewers with at least one licensed physician, selected by the private review agent who:

otherwise is entitled to the certificate;

pays to the Commissioner the renewal fee set by the Commissioner through regulation; and

submits to the Commissioner:

objective;

clinically valid;

compatible with established principles of health care; or

flexible enough to allow deviations from norms when justified on a case-by-case basis; or

A person who violates any provision of § 15-10B-11 of this subtitle is guilty of a misdemeanor and on conviction is subject to a penalty not exceeding $1,000.

Each day a violation is continued after the first conviction is a separate offense.

deny, suspend, or revoke the certificate to do business as a private review agent;

issue an order to cease and desist from acting as a private review agent without holding a certificate issued under this subtitle;

require a private review agent to make restitution to a patient who has suffered actual economic damage because of the violation; and

impose an administrative penalty of up to $5,000 for each violation of any provision of this subtitle.

Except as provided in paragraph (2) of this subsection, this section does not apply to:

A private review agent or any other individual who is either affiliated with, under contract with, or acting on behalf of a private review agent may not approve or fail to approve a course of treatment based on whether the treatment is delivered by a provider who is a participating or nonparticipating provider in the preferred provider organization or employee assistance program network.

refer a patient who has undergone utilization review by the private review agent to:

pay or agree to pay any sum to, or accept or agree to accept any sum from, any person for bringing or referring a patient to the private review agent; or

provide for different insurance coverage or benefits based on receiving the service from a health care facility or health care provider in which the private review agent owns a significant beneficial interest.

the private review agent provides the patient with the names of at least two health care providers appropriate to meet the health care needs of the patient.

in accordance with § 2-207 of this article; and

at least once every 3 years.

The Commissioner may have an adverse decision or grievance decision described under subsection (a) of this section reviewed by an independent review organization.

The costs of a review conducted under paragraph (1) of this subsection shall be paid by the carrier.