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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | Am. Sub. H. B. No. 361 |
REPRESENTATIVES VAN VYVEN-TAVARES-BENDER-BOYD-BRADING-CAREY-
CLANCY-CORBIN-COUGHLIN-FORD-GARCIA-GERBERRY-HOTTINGER-KRUPINSKI-
LAWRENCE-MAIER-MILLER-MOTTLEY-O'BRIEN-OLMAN-OPFER-PADGETT-PERZ-
SALERNO-SAWYER-SCHULER-SCHURING-STAPLETON-TAYLOR-TERWILLEGER-
TIBERI-VESPER-WACHTMANN-WISE-ROMAN-METELSKY-LEWIS-NETZLEY-
HOUSEHOLDER-LOGAN-MASON-WINKLER-MYERS-OGG-BRITTON-WHALEN-
PATTON-CALLENDER-JERSE-MOTTL-REID-DAMSCHRODER-THOMAS-
HARRIS-BATEMAN-ROBERTS-AMSTUTZ-BEATTY-VERICH-WILSON-
WILLAMOWSKI-JONES-BUCHY-PRENTISS-WESTON-
SENATORS RAY-GILLMOR-SUHADOLNIK-WATTS-OELSLAGER-DRAKE-
HORN-KEARNS-SCHAFRATH-FINAN-GARDNER-HOWARD
A BILL
To amend sections 1751.02 to 1751.04, 1751.12, 1751.13, 3901.04, 3901.041,
3901.16,
3924.10, 4121.121, 4123.01, 4123.25, 4123.35, and 4123.512 and to enact
sections 1751.521,
1751.73 to 1751.75,
1751.77 to 1751.86, 1753.01, 1753.03
to 1753.10, 1753.14, 1753.16, 1753.21,
1753.23, 1753.24, 1753.28,
and 1753.30 of the Revised Code to adopt the
Physician-Health Plan Partnership
Act,
to authorize the Administrator of Workers' Compensation to transfer surplus
computers and computer equipment directly to an accredited public school
within
Ohio, to specify circumstances under which a board of county commissioners
may be granted status as a self-insuring employer for purposes of the Workers'
Compensation Law, and to declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1751.02, 1751.03, 1751.04, 1751.12, 1751.13, 3901.04,
3901.041, 3901.16, 3924.10, 4121.121, 4123.01, 4123.25, 4123.35, and 4123.512
be amended and sections 1751.521,
1751.73, 1751.74, 1751.75, 1751.77, 1751.78, 1751.79, 1751.80, 1751.81,
1751.82, 1751.83, 1751.84, 1751.85, 1751.86, 1753.01, 1753.03, 1753.04,
1753.05,
1753.06, 1753.07, 1753.08,
1753.09, 1753.10, 1753.14, 1753.16, 1753.21, 1753.23, 1753.24, 1753.28, and
1753.30 of
the Revised Code be enacted to read as follows:
Sec. 1751.02. (A) Notwithstanding any law in this state to the
contrary, any
corporation, as defined in section 1751.01 of the
Revised Code, may apply to the
superintendent of insurance for a certificate of authority to
establish and operate a health insuring corporation. If the corporation
applying for a certificate of authority is a
foreign corporation domiciled in a state without laws
similar to those of this chapter,
the corporation must form a domestic corporation to apply for, obtain, and
maintain a certificate of authority under this chapter.
(B) No person shall
establish, operate, or perform the services of a health insuring corporation
in this state
without obtaining a certificate of authority under this
chapter.
(C) Except as provided by division (D) of this section,
no political subdivision or department, office, or
institution of this state, or corporation formed by or on behalf of any
political subdivision or department, office, or institution of this state,
shall establish, operate, or perform the services of a health insuring
corporation.
Nothing in this
section shall be construed to preclude a board of county
commissioners, a county board of mental retardation and
developmental disabilities, an alcohol and drug addiction
services board, a board of alcohol, drug addiction, and mental
health services, or a community mental health board, or a public
entity formed by or on behalf of any of these boards, from using
managed care techniques in carrying out the board's or public
entity's duties pursuant to the requirements of
Chapters 307., 329., 340., and
5126. of the Revised
Code. However, no such board
or public entity may operate so as to compete in the private
sector with health insuring corporations holding certificates of
authority under this chapter.
(D) A corporation formed by or on behalf of a publicly owned,
operated, or funded hospital or health care facility may apply to the
superintendent for
a certificate of authority under division (A) of this section to
establish and operate a health insuring corporation.
(E) A health insuring
corporation shall operate in this state in compliance with this
chapter AND CHAPTER 1753. of the Revised Code, and with sections
3702.51 to 3702.62 of the
Revised
Code, and shall operate in
conformity with its filings with the superintendent under this
chapter, including filings made pursuant to sections 1751.03,
1751.11, 1751.12, and 1751.31 of the
Revised
Code.
(F) An insurer licensed under Title XXXIX of
the
Revised Code need not obtain a certificate of
authority as a health insuring corporation to offer an open
panel plan as long as the providers and health care facilities
participating in the open panel plan receive their compensation
directly from the insurer. If the providers and health care
facilities participating in the open panel plan receive their
compensation from any person other than the insurer, or if the
insurer offers a closed panel plan, the insurer must obtain a
certificate of authority as a health insuring corporation.
(G) An intermediary
organization need not obtain a certificate of authority as a
health insuring corporation, regardless of the method of reimbursement to the
intermediary organization,
as long as a health insuring
corporation or a self-insured employer maintains the ultimate responsibility
to assure delivery of all health care services required by the contract
between the health insuring corporation and the subscriber and
the laws of this state or between the self-insured employer and its
employees.
Nothing in this section shall be construed to require any
health care facility, provider, health delivery network, or
intermediary organization that contracts with a health insuring
corporation or self-insured employer, regardless of the method
of reimbursement to the health care facility, provider, health
delivery network, or intermediary organization, to obtain a
certificate of authority as a health insuring corporation under
this chapter, unless otherwise provided, in the case of
contracts with a self-insured employer, by operation of the
"Employee
Retirement
Income
Security
Act of 1974," 88
Stat. 829, 29
U.S.C.A.
1001, as amended.
(H) Any health delivery
network doing business in this state that is not required to
obtain a certificate of authority under this chapter shall
certify to the superintendent annually, not later than the
first day of July, and shall
provide a statement signed by the highest ranking official which
includes the following information:
(1) The health delivery network's full name and the
address of its principal place of business;
(2) A statement that the health delivery network is not
required to obtain a certificate of authority under this chapter
to conduct its business.
(I) The superintendent
shall not issue a certificate of authority to a health insuring
corporation that is a provider sponsored organization unless all
health care plans to be offered by the health insuring
corporation provide basic health care services.
Substantially all of the physicians and hospitals with
ownership or control of the provider sponsored organization, as
defined in division (W) of
section 1751.01 of the Revised
Code, shall also be
participating providers for the provision of basic health care
services for health care plans offered by the provider sponsored
organization. If a health insuring corporation that is a
provider sponsored organization offers health care plans that do
not provide basic health care services, the health insuring
corporation shall be deemed, for purposes of section 1751.35 of
the Revised Code, to have failed to substantially
comply with this chapter.
Except as specifically provided in this division and in division
(C) of section 1751.28 of the Revised Code,
the provisions of this chapter shall apply to all health insuring corporations
that are provider sponsored organizations in the same manner that these
provisions apply to all health insuring corporations that are not provider
sponsored organizations.
(J) Nothing in this section shall be construed to apply to any
multiple employer welfare arrangement operating pursuant to Chapter
1739. of the Revised Code.
(K) Any person who
violates division (B) of this
section, and any health delivery network that fails to comply
with division (H) of this
section, is subject to the penalties set forth in section
1751.45 of the Revised
Code.
Sec. 1751.03. (A) Each
application for a certificate of authority under this chapter
shall be verified by an officer or authorized representative of
the applicant, shall be in a format prescribed by the
superintendent of insurance, and shall set forth or be
accompanied by the following:
(1) A certified copy of the applicant's articles of
incorporation and all amendments to the articles of
incorporation;
(2) A copy of any regulations adopted for the government
of the corporation, any bylaws, and any similar documents, and a
copy of all amendments to these regulations, bylaws, and
documents. The corporate secretary shall certify that these
regulations, bylaws, documents, and amendments have been
properly adopted or approved.
(3) A list of the names, addresses, and official
positions of the persons responsible for the conduct of the
applicant, including all members of the board, the principal
officers, and the person responsible for completing or filing
financial statements with the department of insurance,
accompanied by a completed original biographical affidavit and
release of information for each of these persons on forms
acceptable to the department;
(4) A full and complete disclosure of the extent and
nature of any contractual or other financial arrangement between
the applicant and any provider or a person listed in division
(A)(3) of this section,
including, but not limited to, a full and complete disclosure of
the financial interest held by any such provider or person in
any health care facility, provider, or insurer that has entered
into a financial relationship with the health insuring
corporation;
(5) A description of the applicant, its facilities, and
its personnel, including, but not limited to, the location,
hours of operation, and telephone numbers of all contracted
facilities;
(6) The applicant's projected annual enrollee population
over a three-year period;
(7) A clear and specific description of the health care
plan or plans to be used by the applicant, including a
description of the proposed providers, procedures for accessing
care, and the form of all proposed and existing contracts
relating to the administration, delivery, or financing of health
care services;
(8) A copy of each type of evidence of coverage and
identification card or similar document to be issued to
subscribers;
(9) A copy of each type of individual or group policy,
contract, or agreement to be used;
(10) The schedule of the proposed contractual periodic
prepayments or premium rates, or both, accompanied by appropriate supporting
data;
(11) A financial plan which provides a three-year
projection of operating results, including the projected
expenses, income, and sources of working capital;
(12) The enrollee complaint procedure to be utilized as
required under section 1751.19 of the
Revised
Code;
(13) A description of the procedures and programs to be implemented on an
ongoing basis to assure the quality of health care services delivered to
enrollees, INCLUDING, IF APPLICABLE, A DESCRIPTION OF A QUALITY
ASSURANCE PROGRAM
COMPLYING WITH THE REQUIREMENTS OF SECTIONS 1751.73 TO 1751.75 of the Revised Code;
(14) A statement describing the geographic area or areas
to be served, by county;
(15) A copy of all solicitation documents;
(16) A balance sheet and other financial statements
showing the applicant's assets, liabilities, income, and other
sources of financial support;
(17) A description of the nature and extent of any
reinsurance program to be implemented, and a demonstration that
errors and omission insurance and, if appropriate, fidelity
insurance, will be in place upon the applicant's receipt of a
certificate of authority;
(18) Copies of all proposed or in force related-party or
intercompany agreements with an explanation of the financial
impact of these agreements on the applicant. If the applicant
intends to enter into a contract for managerial or
administrative services, with either an affiliated or an unaffiliated person,
the applicant shall provide a copy of the contract and a detailed description
of the person to
provide these services. The description shall include that person's
experience in managing or administering health care plans, a
copy of that person's most recent audited financial statement,
and a completed biographical affidavit on a form acceptable to
the superintendent for each of that person's principal officers
and board members and for any additional employee to be directly
involved in providing managerial or administrative services to
the health insuring corporation. If the person to provide
managerial or administrative services is affiliated with the
health insuring corporation, the contract must provide for
payment for services based on actual costs.
(19) A statement from the applicant's board that the
admitted assets of the applicant have not been and will not be
pledged or hypothecated;
(20) A statement from the applicant's board that the
applicant will submit monthly financial statements during the
first year of operations;
(21) The name and address of the applicant's
Ohio statutory agent for
service of process, notice, or demand;
(22) Copies of all documents the applicant filed with the secretary of
state;
(23) The location of those books and records of the
applicant that must be maintained in Ohio;
(24) The applicant's federal identification number,
corporate address, and mailing address;
(25) An internal and external organizational
chart;
(26) A list of the assets representing the initial net
worth of the applicant;
(27) If the applicant has a parent company, the parent
company's guaranty, on a form acceptable to the superintendent,
that the applicant will maintain
Ohio's minimum net worth. If
no parent company exists, a statement regarding the availability
of future funds if needed.
(28) The names and addresses of the applicant's actuary
and external auditors;
(29) If the applicant is a foreign corporation, a copy of the
most recent financial statements filed with the insurance
regulatory agency in the applicant's state of domicile;
(30) If the applicant is a foreign corporation, a statement
from the insurance regulatory agency of the applicant's state of
domicile stating that the regulatory agency has no objection to
the applicant applying for an Ohio license and that the
applicant is in good standing in the applicant's state of
domicile;
(31) Any other information that the superintendent may
require.
(B)(1) A health insuring
corporation, unless otherwise provided for in this chapter,
shall file a timely notice with the superintendent describing
any change to the corporation's articles of incorporation or
regulations, or any major modification to its operations as set
out in the information required by division
(A) of this section that
affects any of the following:
(a) The solvency of the
health insuring corporation;
(b) The health insuring
corporation's continued provision of services that it has
contracted to provide;
(c) The manner in which
the health insuring corporation conducts its business.
(2) If the change or modification is to be the result of an action
to be taken by the health insuring corporation, the notice shall
be filed with the superintendent prior to the health insuring corporation
taking
the action. The action shall be deemed approved if the
superintendent does not disapprove it within sixty days of
filing.
(C)(1) No health
insuring corporation shall expand its approved service area
until a copy of the request for expansion, accompanied by
documentation of the network of providers, enrollment
projections, plan of operation, and any other changes have been
filed with the superintendent.
(2) Within ten calendar days after receipt of a complete
filing under division (C)(1) of
this section, the superintendent shall refer the appropriate
jurisdictional issues to the director of health pursuant to
section 1751.04 of the Revised
Code.
(3) Within seventy-five days after the superintendent's receipt
of a complete filing under division
(C)(1) of this section, the
superintendent shall determine whether the plan for expansion is
lawful, fair, and reasonable. The superintendent may not make a
determination until the superintendent has received the
director's certification of compliance, which the director shall
furnish within forty-five days after referral under division
(C)(2) of this section. The
director shall not certify that the requirements of section
1751.04 of the Revised
Code are not met, unless the
applicant has been given an opportunity for a hearing as
provided in division (D) of
section 1751.04 of the Revised
Code. The forty-five-day and
seventy-five-day review periods provided for in division
(C)(3) of this section shall
cease to run as of the date on which the notice of the
applicant's right to request a hearing is mailed and shall
remain suspended until the director issues a final
certification.
(4) If the superintendent has not approved or disapproved
all or a portion of a service area expansion within the
seventy-five-day period provided for in division
(C)(3) of this section, the
filing shall be deemed approved.
(5) Disapproval of all or a portion of the filing shall
be effected by written notice, which shall state the grounds for
the order of disapproval and shall be given in accordance with
Chapter 119. of the Revised Code.
Sec. 1751.04. (A) Upon the
receipt by the superintendent of insurance of a complete
application for a certificate of authority to establish or
operate a health insuring corporation, which application sets
forth or is accompanied by the information and documents
required by division (A) of
section 1751.03 of the Revised
Code, the superintendent shall
transmit copies of the application and accompanying documents to
the director of health.
(B) The director shall
review the application and accompanying documents and make
findings as to whether the applicant for a certificate of
authority has done all of the following with respect to any basic health care
services and supplemental
health care services to be furnished:
(1) Demonstrated the willingness and potential ability to
ensure that all basic health care services and supplemental
health care services described in the
evidence of coverage will
be provided to all its enrollees as promptly as is appropriate
and in a manner that assures continuity;
(2) Made effective arrangements to ensure that its
enrollees have reliable access to qualified providers in those
specialties that are generally available in the geographic area
or areas to be served by the applicant and that are necessary to
provide all basic health care services and supplemental health
care services described in the evidence of
coverage;
(3) Made appropriate arrangements for the availability of
short-term health care services in emergencies within the
geographic area or areas to be served by the applicant,
twenty-four hours per day, seven days per week, and for the
provision of adequate coverage whenever an out-of-area emergency
arises;
(4) Made appropriate arrangements for an ongoing evaluation and assurance
of the quality of health care services provided to enrollees,
INCLUDING, IF APPLICABLE, THE DEVELOPMENT OF A QUALITY ASSURANCE PROGRAM
COMPLYING WITH THE
REQUIREMENTS OF SECTIONS 1751.73 TO 1751.75 of the Revised Code, and the adequacy
of the personnel, facilities, and equipment by or through which the services
are rendered;
(5) Developed a procedure to gather and report statistics
relating to the cost and effectiveness of its operations, the
pattern of utilization of its services, and the quality,
availability, and accessibility of its services.
(C) Within ninety days of the director's receipt of the
application for
issuance of a certificate of authority, the director shall
certify to the superintendent whether or not the applicant meets
the requirements of division (B) of this section and sections 3702.51
to 3702.62 of the Revised Code. If the director
certifies that the applicant does not meet these requirements,
the director shall specify in what respects it is deficient.
However, the director shall not certify that the requirements of
this section are not met unless the applicant has been given an
opportunity for a hearing.
(D) If the applicant
requests a hearing, the director shall hold a hearing before
certifying that the applicant does not meet the requirements of
this section. The hearing shall be held in accordance with
Chapter 119. of the
Revised Code.
(E) The
ninety-day review period provided for under division
(C) of this section shall cease
to run as of the date on which the notice of the applicant's
right to request a hearing is mailed and shall remain suspended
until the director issues a final certification order.
Sec. 1751.12. (A)(1) No
contractual periodic prepayment and no premium rate for nongroup and
conversion policies for health care services, or any amendment
to them, may be used by any health insuring corporation at any
time until the contractual periodic prepayment and premium rate, or
amendment, have been filed with the superintendent of insurance,
and shall not be effective until the expiration of sixty days
after their filing unless the superintendent sooner gives
approval. The superintendent shall disapprove the filing, if
the superintendent determines within the sixty-day period that
the contractual periodic prepayment or premium rate, or amendment, is
not in accordance with sound actuarial principles or is not
reasonably related to the applicable coverage and
characteristics of the applicable class of enrollees. The
superintendent shall notify the health insuring corporation of
the disapproval, and it shall thereafter be unlawful for the
health insuring corporation to use the contractual periodic
prepayment or premium rate, or amendment.
(2) No contractual periodic prepayment for group
policies for health care services shall be used until the
contractual periodic prepayment has been filed with
the superintendent. The superintendent may reject a filing made
under division (A)(2) of this section at any time, with
at least thirty days' written notice to a health insuring
corporation, if the contractual periodic prepayment is not
in accordance with sound
actuarial principles or is not reasonably related to the
applicable coverage and characteristics of the applicable class
of enrollees.
(3) At any time, the superintendent, upon at least thirty
days' written notice to a health insuring corporation, may
withdraw the approval given under division (A)(1) of this section,
deemed or actual, of any contractual
periodic prepayment or premium rate, or amendment, based on
information that either of the following applies:
(a) The contractual
periodic prepayment or premium rate, or amendment, is not in
accordance with sound actuarial principles.
(b) The contractual
periodic prepayment or premium rate, or amendment, is not reasonably
related to the applicable coverage and characteristics of the
applicable class of enrollees.
(4) Any disapproval under division (A)(1) of this section,
any rejection of a filing made under division (A)(2) of
this section, or any
withdrawal of approval under division (A)(3) of this section, shall
be effected by a written notice, which shall state the specific
basis for the disapproval, rejection, or withdrawal and shall be issued
in accordance with Chapter 119. of the
Revised Code.
(B) Notwithstanding division (A) of this section, a
health insuring corporation may use a contractual periodic
prepayment or premium rate for policies used for the coverage of
beneficiaries enrolled in Title
XVIII of the "Social Security Act," 49
Stat. 620 (1935), 42
U.S.C.A.
301, as amended, pursuant to a medicare risk contract or
medicare cost contract, or for policies used for the coverage of
beneficiaries enrolled in the federal employees health benefits
program pursuant to 5
U.S.C.A.
8905, or for policies used for the coverage of beneficiaries
enrolled in Title
XIX of the "Social Security Act," 49
Stat. 620 (1935), 42
U.S.C.A.
301, as amended, known as the
medical assistance program or medicaid, provided
by the Ohio department of human services under Chapter 5111.
of the Revised Code, or for policies used for the coverage
of beneficiaries under any other federal health care program regulated by a
federal regulatory body, if both of the following
apply:
(1) The contractual periodic prepayment or premium rate has been approved
by the United States department of health and
human services, the United States office of personnel
management, or the Ohio department of human services.
(2) The contractual periodic prepayment or premium rate is filed with the
superintendent prior to use and is accompanied by
documentation of approval from the
United States department of health and
human services, the United
States office of personnel
management, or the Ohio
department of human services.
(C) The administrative
expense portion of all contractual periodic prepayment or
premium rate filings submitted to the superintendent for review must
reflect the actual cost of administering the product. The
superintendent may require that the administrative expense portion of the
filings be itemized and supported.
(D)(1) Copayments and
deductibles must be reasonable and must not be a barrier to the
necessary utilization of services by enrollees.
(2) A health insuring corporation may not impose
copayment charges on basic health care services that exceed
thirty per cent of the total cost of providing any single
covered health care service, except for PHYSICIAN OFFICE VISITS,
emergency health
services, and urgent care services. The total cost of providing
a health care service is the cost to the health insuring
corporation of providing the health care service to the enrollee ITS
ENROLLEES
as reduced by any applicable provider discount.
An open panel plan may not impose copayments on out-of-network
benefits that exceed fifty per cent of the total cost of
providing any single covered health care service.
(3) To ensure that copayments are not a barrier to the
utilization of basic health care services, a health insuring
corporation may not impose, in any contract year, on any
subscriber or enrollee, copayments that exceed two hundred per
cent of the total annual premium rate to the subscriber or enrollees. This
limitation of
two hundred per cent does not include any reasonable copayments
that are not a barrier to the necessary utilization of health
care services by enrollees and that are imposed on physician
office visits, emergency health services, urgent care services,
supplemental health care services, or specialty health care services.
(E) A health insuring
corporation shall not impose lifetime maximums on basic health
care services. However, a health insuring corporation may
establish a benefit limit for inpatient hospital services that
are provided pursuant to a policy, contract, certificate, or
agreement for supplemental health care services.
Sec. 1751.13. (A)(1)(a) A health
insuring corporation shall, either directly or indirectly, enter
into contracts for the provision of health care services with a
sufficient number and types of providers and health care
facilities to ensure that all covered health care services will
be accessible to enrollees from a contracted provider or health
care facility.
(b) A HEALTH INSURING CORPORATION SHALL NOT REFUSE
TO CONTRACT WITH A PHYSICIAN FOR THE PROVISION OF HEALTH CARE
SERVICES OR REFUSE TO RECOGNIZE A PHYSICIAN AS A SPECIALIST ON
THE BASIS THAT THE PHYSICIAN ATTENDED AN EDUCATIONAL PROGRAM OR
A RESIDENCY PROGRAM APPROVED OR CERTIFIED BY THE
AMERICAN OSTEOPATHIC
ASSOCIATION. A HEALTH INSURING CORPORATION SHALL NOT REFUSE TO
CONTRACT WITH A HEALTH CARE FACILITY FOR THE PROVISION OF HEALTH
CARE SERVICES ON THE BASIS THAT THE HEALTH CARE FACILITY IS
CERTIFIED OR ACCREDITED BY THE
AMERICAN OSTEOPATHIC
ASSOCIATION OR THAT THE HEALTH CARE FACILITY IS AN OSTEOPATHIC
HOSPITAL AS DEFINED IN SECTION 3702.51 OF THE
REVISED
CODE.
(c) NOTHING IN DIVISION
(A)(1)(b)
OF THIS SECTION SHALL BE CONSTRUED TO REQUIRE A HEALTH INSURING
CORPORATION TO MAKE A BENEFIT PAYMENT UNDER A CLOSED PANEL PLAN
TO A PHYSICIAN OR HEALTH CARE FACILITY WITH WHICH THE HEALTH
INSURING CORPORATION DOES NOT HAVE A CONTRACT, PROVIDED THAT
NONE OF THE BASES SET FORTH IN THAT DIVISION ARE USED AS A
REASON FOR FAILING TO MAKE A BENEFIT PAYMENT.
(2) When a health insuring corporation is unable to
provide a covered health care service from a contracted provider
or health care facility, the health insuring corporation must
provide that health care service from a noncontracted provider
or health care facility consistent with the terms of the
enrollee's policy, contract, certificate, or agreement. The
health insuring corporation shall either ensure that the health
care service be provided at no greater cost to the enrollee than
if the enrollee had obtained the health care service from a
contracted provider or health care facility, or make other
arrangements acceptable to the superintendent of
insurance.
(3) Nothing in this section shall prohibit a health
insuring corporation from entering into contracts with
out-of-state providers or health care facilities that are
licensed, certified, accredited, or otherwise authorized in that
state.
(B)(1) A health insuring
corporation shall, either directly or indirectly, enter into
contracts with all providers and health care facilities through
which health care services are provided to its enrollees.
(2) A health insuring corporation, upon written request, shall assist its
contracted providers in finding stop-loss or reinsurance carriers.
(C) A health insuring corporation shall file an annual
certificate with the superintendent certifying that all provider contracts
and contracts with health care facilities through which health
care services are being provided contain the following:
(1) A description of the method by which the provider or
health care facility will be notified of the specific health
care services for which the provider or health care facility
will be responsible, including any limitations or conditions on
such services;
(2) The specific hold harmless provision specifying
protection of enrollees set forth as follows:
"[Provider/Health Care
Facility] agrees that in no event, including but not limited to
nonpayment by the health insuring corporation, insolvency of the health
insuring corporation, or breach of this agreement, shall
[Provider/Health Care
Facility] bill, charge, collect a deposit from, seek
remuneration or reimbursement from, or have any recourse
against, a subscriber,
enrollee, person to whom health care services have been
provided, or person acting on behalf of the covered enrollee,
for health care services provided pursuant to this agreement.
This does not prohibit [Provider/Health
Care Facility] from collecting
co-insurance, deductibles, or copayments as specifically
provided in the evidence of coverage, or fees for uncovered
health care services delivered on a fee-for-service basis to
persons referenced above, nor from any recourse against the
health insuring corporation or its successor."
(3) Provisions requiring the provider or health care
facility to continue to provide covered health care services to
enrollees in the event of the health insuring corporation's
insolvency or discontinuance of operations. The
provisions shall require the provider or health care facility to
continue to provide covered health care services to enrollees as
needed to complete any medically necessary procedures commenced
but unfinished at the time of the health insuring corporation's
insolvency or discontinuance of operations. If an enrollee is
receiving necessary inpatient care at a hospital, the provisions
may limit the required provision of covered health care services
relating to that inpatient care in accordance with division
(D)(3) of section 1751.11 of the Revised
Code, and may also limit such required provision of
covered health care services to the period ending thirty days
after the health insuring corporation's insolvency or
discontinuance of operations.
The provisions required by division (C)(3) of this
section shall not require any provider or health care facility
to continue to provide any covered health care service after the
occurrence of any of the following:
(a) The end of the thirty-day period following the entry
of a liquidation order under Chapter 3903. of the
Revised Code;
(b) The end of the enrollee's period of coverage for a
contractual prepayment or premium;
(c) The enrollee obtains equivalent coverage with another
health insuring corporation or insurer, or the enrollee's
employer obtains such coverage for the enrollee;
(d) The enrollee or the enrollee's employer terminates
coverage under the contract;
(e) A liquidator effects a transfer of the health
insuring corporation's obligations under the contract under
division (A)(8) of section 3903.21 of the Revised Code.
(4) A provision clearly stating the rights and
responsibilities of the health insuring corporation, and of the
contracted providers and health care facilities, with respect to
administrative policies and programs, including, but not limited
to, payments systems, utilization review, quality ASSURANCE,
assessment, and improvement programs, credentialing, confidentiality
requirements, and any applicable federal or state
programs;
(5) A provision regarding the availability and
confidentiality of those health records maintained by providers
and health care facilities to monitor and evaluate the quality
of care, to conduct evaluations and audits, and to determine on
a concurrent or retrospective basis the necessity of and
appropriateness of health care services provided to enrollees.
The provision shall include terms requiring the provider or
health care facility to make these health records available to
appropriate state and federal authorities involved in assessing
the quality of care or in investigating the grievances or
complaints of enrollees, and requiring the provider or health
care facility to comply with applicable state and federal laws
related to the confidentiality of medical or health
records.
(6) A provision that states that contractual rights and
responsibilities may not be assigned or delegated by the
provider or health care facility without the prior written
consent of the health insuring corporation;
(7) A provision requiring the provider or health care
facility to maintain adequate professional liability and
malpractice insurance. The provision shall also require the
provider or health care facility to notify the health insuring
corporation not more than ten days after the provider's or
health care facility's receipt of notice of any reduction or
cancellation of such coverage.
(8) A provision requiring the provider or health care
facility to observe, protect, and promote the rights of
enrollees as patients;
(9) A provision requiring the provider or health care
facility to provide health care services without discrimination
on the basis of a patient's participation in the health care
plan, age, sex, ethnicity, religion, sexual preference, health
status, or disability, and without regard to the source of
payments made for health care services rendered to a patient.
This requirement shall not apply to circumstances when the
provider or health care facility appropriately does not render
services due to limitations arising from the provider's or
health care facility's lack of training, experience, or skill,
or due to licensing restrictions.
(10) A provision containing the specifics of any
obligation on the provider or health care facility to provide,
or to arrange for the provision of, covered health care services
twenty-four hours per day, seven days per week;
(11) A provision setting forth procedures for the
resolution of disputes arising out of the contract;
(12) A provision stating that the hold harmless provision
required by division (C)(2) of
this section shall survive the termination of the contract with respect to
services covered and provided under the contract during the time the contract
was in effect, regardless of the reason for the termination, including the
insolvency of the health insuring corporation;
(13) A provision requiring those terms that are used in
the contract and that are defined by this chapter, be used in
the contract in a manner consistent with those
definitions.
(D)(1) No health insuring
corporation contract with a provider or health care facility
shall do either CONTAIN ANY of the following:
(1) Offer (a) A PROVISION THAT DIRECTLY OR INDIRECTLY
OFFERS an inducement to the provider or health care
facility, directly or indirectly, to reduce or limit medically
necessary health care services to a covered enrollee;
(2) Penalize (b) A PROVISION THAT PENALIZES a
provider or health care facility that
assists an enrollee to seek a reconsideration of the health
insuring corporation's decision to deny or limit benefits to the
enrollee;
(c) A PROVISION THAT LIMITS OR OTHERWISE RESTRICTS
THE PROVIDER'S OR HEALTH CARE FACILITY'S ETHICAL AND LEGAL
RESPONSIBILITY TO FULLY ADVISE ENROLLEES ABOUT THEIR MEDICAL
CONDITION AND ABOUT MEDICALLY APPROPRIATE TREATMENT
OPTIONS;
(d) A PROVISION THAT PENALIZES A PROVIDER OR
HEALTH CARE FACILITY FOR PRINCIPALLY ADVOCATING FOR MEDICALLY
NECESSARY HEALTH CARE SERVICES;
(e) A PROVISION THAT PENALIZES A PROVIDER OR HEALTH CARE
FACILITY FOR PROVIDING INFORMATION OR TESTIMONY TO A LEGISLATIVE
OR REGULATORY BODY OR AGENCY. THIS SHALL NOT BE CONSTRUED TO
PROHIBIT A HEALTH INSURING CORPORATION FROM PENALIZING A
PROVIDER OR HEALTH CARE FACILITY THAT PROVIDES INFORMATION OR
TESTIMONY THAT IS LIBELOUS OR SLANDEROUS OR THAT DISCLOSES TRADE
SECRETS WHICH THE PROVIDER OR HEALTH CARE FACILITY HAS NO
PRIVILEGE OR PERMISSION TO DISCLOSE.
(2) NOTHING IN THIS DIVISION SHALL BE CONSTRUED TO
PROHIBIT A HEALTH INSURING CORPORATION FROM DOING EITHER OF THE
FOLLOWING:
(a) MAKING A DETERMINATION NOT TO REIMBURSE OR PAY
FOR A PARTICULAR MEDICAL TREATMENT OR OTHER HEALTH CARE
SERVICE;
(b) ENFORCING REASONABLE PEER REVIEW OR
UTILIZATION REVIEW PROTOCOLS, OR DETERMINING WHETHER A
PARTICULAR PROVIDER OR HEALTH CARE FACILITY HAS COMPLIED WITH
THESE PROTOCOLS.
(E) Any contract between
a health insuring corporation and an intermediary organization
shall clearly specify that the health insuring corporation must
approve or disapprove the participation of any provider or
health care facility with which the intermediary organization
contracts.
(F) If an intermediary organization that is not a health delivery
network contracting solely with self-insured employers subcontracts with a
provider or health care facility, the subcontract with the provider or health
care facility shall do all of the following:
(1) Contain the provisions required by divisions
(C) and (G) of this section, as made
applicable to an intermediary organization, without the inclusion of
inducements or penalties described in division (D) of this
section;
(2) Acknowledge that the health insuring corporation is a
third-party beneficiary to the agreement;
(3) Acknowledge the health insuring corporation's role in
approving the participation of the provider or health care
facility, pursuant to division
(E) of this section.
(G) Any provider
contract or contract with a health care facility shall clearly
specify the health insuring corporation's statutory
responsibility to monitor and oversee the offering of covered
health care services to its enrollees.
(H)(1) A health insuring
corporation shall maintain its provider contracts and its contracts with
health care facilities at one or more of its places of business in
this state, and shall provide copies of these contracts to
facilitate regulatory review upon written notice by the
superintendent of insurance.
(2) Any contract with an intermediary organization shall
include provisions requiring the intermediary organization to
provide the superintendent with regulatory access to all books,
records, financial information, and documents related to the
provision of health care services to subscribers and enrollees
under the contract. The contract shall require the intermediary
organization to maintain such books, records, financial
information, and documents at its principal place of business in
this state and to preserve them for at least three years in a
manner that facilitates regulatory review.
(I) A health insuring corporation shall provide notice
of the termination of any contract with a primary care physician
or hospital.
(J) Divisions (A) and (B) of this section do
not apply to any health insuring corporation that, on the effective
date of this section JUNE 4, 1997, holds a
certificate of authority or
license to operate under Chapter 1740. of the Revised
Code.
(K) NOTHING IN THIS SECTION SHALL RESTRICT THE GOVERNING BODY OF
A HOSPITAL FROM EXERCISING THE AUTHORITY GRANTED IT PURSUANT TO SECTION
3701.351 of the Revised Code.
Sec. 1751.521. IF AN ENROLLEE SIGNS A MEDICAL INFORMATION RELEASE UPON THE
REQUEST OF A HEALTH INSURING CORPORATION, THE RELEASE SHALL CLEARLY EXPLAIN
WHAT INFORMATION MAY BE DISCLOSED UNDER THE TERMS OF THE RELEASE. IF A HEALTH
INSURING CORPORATION UTILIZES THIS RELEASE TO REQUEST MEDICAL INFORMATION FROM
A HEALTH CARE FACILITY OR PROVIDER, THE HEALTH INSURING CORPORATION
SHALL PROVIDE A COPY OF THE ENROLLEE'S RELEASE TO THE HEALTH CARE FACILITY OR
PROVIDER, UPON REQUEST.
Sec. 1751.73. EACH HEALTH INSURING CORPORATION
PROVIDING BASIC HEALTH CARE SERVICES SHALL IMPLEMENT A QUALITY
ASSURANCE PROGRAM FOR USE IN CONNECTION WITH THOSE POLICIES,
CONTRACTS, AND AGREEMENTS PROVIDING BASIC HEALTH CARE SERVICES.
EACH HEALTH INSURING CORPORATION REQUIRED TO IMPLEMENT A QUALITY
ASSURANCE PROGRAM SHALL ANNUALLY FILE A
CERTIFICATE WITH THE SUPERINTENDENT OF INSURANCE CERTIFYING THAT ITS QUALITY
ASSURANCE PROGRAM DOES ALL OF THE FOLLOWING:
(A) IDENTIFIES A CORPORATE BOARD OR COMMITTEE OR DESIGNATES AN
EXECUTIVE STAFF PERSON RESPONSIBLE FOR PROGRAM IMPLEMENTATION AND COMPLIANCE;
(B) INCLUDES A PROCESS ENABLING THE SELECTION AND RETENTION OF
QUALITY PROVIDERS AND HEALTH CARE FACILITIES THROUGH CREDENTIALING,
RECREDENTIALING, AND MONITORING PROCEDURES;
(C) PROVIDES FOR ONGOING MONITORING OF THE QUALITY ASSURANCE
PROGRAM;
(D) ASSURES A PROCESS FOR COMPLIANCE BY ANY ENTITY OR ENTITIES
WITH WHICH THE HEALTH INSURING CORPORATION CONTRACTS FOR SERVICES;
(E) INCLUDES A PROCESS TO TAKE REMEDIAL ACTION TO CORRECT QUALITY
PROBLEMS.
Sec. 1751.74. (A) TO IMPLEMENT A QUALITY ASSURANCE PROGRAM
REQUIRED BY SECTION 1715.73 of the Revised Code, A HEALTH INSURING CORPORATION SHALL DO BOTH
OF THE FOLLOWING:
(1) DEVELOP AND MAINTAIN THE
APPROPRIATE INFRASTRUCTURE AND DISCLOSURE SYSTEMS NECESSARY TO MEASURE
AND REPORT, ON A REGULAR BASIS, THE QUALITY OF HEALTH CARE
SERVICES PROVIDED TO ENROLLEES,
BASED ON A SYSTEMATIC COLLECTION, ANALYSIS, AND REPORTING OF
RELEVANT DATA. THE HEALTH INSURING CORPORATION SHALL ASSURE THAT A COMMITTEE
THAT INCLUDES PARTICIPATING
PHYSICIANS HAVE THE OPPORTUNITY TO PARTICIPATE IN DEVELOPING,
IMPLEMENTING, AND EVALUATING THE QUALITY ASSURANCE PROGRAM
AND ALL OTHER PROGRAMS IMPLEMENTED BY THE HEALTH INSURING CORPORATION THAT
RELATE
TO THE UTILIZATION OF HEALTH CARE SERVICES. A COMMITTEE THAT INCLUDES
PARTICIPATING PHYSICIANS SHALL ALSO HAVE THE OPPORTUNITY TO PARTICIPATE IN THE
DERIVATION OF DATA
ASSESSMENTS, STATISTICAL ANALYSES,
AND OUTCOME INTERPRETATIONS FROM PROGRAMS
MONITORING THE UTILIZATION OF HEALTH CARE SERVICES.
(2) DEVELOP AND MAINTAIN
AN ORGANIZATIONAL PROGRAM FOR DESIGNING, MEASURING, ASSESSING,
AND IMPROVING THE PROCESSES AND OUTCOMES OF HEALTH CARE.
(B) A QUALITY ASSURANCE PROGRAM SHALL:
(1) ESTABLISH AN INTERNAL SYSTEM CAPABLE OF IDENTIFYING
OPPORTUNITIES TO IMPROVE HEALTH CARE, WHICH SYSTEM IS STRUCTURED TO
IDENTIFY PRACTICES THAT RESULT IN IMPROVED HEALTH CARE OUTCOMES,
TO IDENTIFY PROBLEMATIC UTILIZATION PATTERNS, AND TO IDENTIFY THOSE
PROVIDERS THAT MAY BE RESPONSIBLE FOR EITHER EXEMPLARY OR
PROBLEMATIC PATTERNS. THE QUALITY ASSURANCE PROGRAM SHALL USE THE FINDINGS
GENERATED BY THE
SYSTEM TO WORK ON A CONTINUING BASIS WITH PARTICIPATING
PROVIDERS AND OTHER STAFF TO IMPROVE THE QUALITY OF HEALTH CARE SERVICES
PROVIDED
TO ENROLLEES.
(2) DEVELOP A WRITTEN STATEMENT OF ITS OBJECTIVES, LINES OF AUTHORITY
AND ACCOUNTABILITY, EVALUATION TOOLS, AND PERFORMANCE
IMPROVEMENT ACTIVITIES;
(3) REQUIRE AN ANNUAL EFFECTIVENESS REVIEW
OF THE PROGRAM;
(4) PROVIDE A DESCRIPTION OF
HOW THE HEALTH INSURING CORPORATION INTENDS TO DO ALL OF THE
FOLLOWING:
(a) ANALYZE BOTH PROCESSES AND OUTCOMES OF HEALTH CARE, INCLUDING
FOCUSED
REVIEW OF INDIVIDUAL CASES AS APPROPRIATE, TO DISCERN THE CAUSES OF VARIATION;
(b) IDENTIFY THE TARGETED DIAGNOSES AND TREATMENTS TO BE REVIEWED
BY THE QUALITY ASSURANCE PROGRAM EACH YEAR, BASED ON CONSIDERATION OF
PRACTICES AND DIAGNOSES THAT AFFECT A SUBSTANTIAL NUMBER OF THE HEALTH
INSURING CORPORATION'S ENROLLEES OR THAT COULD PLACE ENROLLEES AT SERIOUS
RISK;
(c) USE A RANGE OF APPROPRIATE METHODS TO ANALYZE QUALITY OF
HEALTH CARE,
INCLUDING COLLECTION AND ANALYSIS OF INFORMATION ON OVER-UTILIZATION AND
UNDER-UTILIZATION OF HEALTH CARE SERVICES; EVALUATION OF COURSES OF TREATMENT
AND OUTCOMES
BASED ON CURRENT MEDICAL RESEARCH, KNOWLEDGE, STANDARDS, AND PRACTICE
GUIDELINES; AND COLLECTION AND ANALYSIS OF INFORMATION SPECIFIC TO
ENROLLEES OR PROVIDERS;
(d) COMPARE QUALITY ASSURANCE PROGRAM FINDINGS WITH PAST
PERFORMANCE, INTERNAL
GOALS, AND EXTERNAL STANDARDS;
(e) MEASURE THE PERFORMANCE OF PARTICIPATING PROVIDERS AND
CONDUCT PEER REVIEW ACTIVITIES;
(f) UTILIZE TREATMENT PROTOCOLS AND PRACTICE PARAMETERS DEVELOPED
WITH APPROPRIATE CLINICAL INPUT;
(g) IMPLEMENT IMPROVEMENT STRATEGIES RELATED TO QUALITY ASSURANCE
PROGRAM FINDINGS;
(h) EVALUATE PERIODICALLY, BUT NOT LESS THAN ANNUALLY, THE
EFFECTIVENESS OF THE IMPROVEMENT STRATEGIES.
Sec. 1751.75. A HEALTH INSURING CORPORATION MAY PRESENT EVIDENCE OF
COMPLIANCE WITH THE REQUIREMENTS OF SECTIONS 1751.73 AND 1751.74 of the Revised Code BY
SUBMITTING CERTIFICATION TO THE SUPERINTENDENT OF INSURANCE OF ITS
ACCREDITATION BY AN INDEPENDENT, PRIVATE ACCREDITING ORGANIZATION, SUCH AS THE
NATIONAL COMMITTEE ON QUALITY ASSURANCE, THE NATIONAL QUALITY HEALTH COUNCIL,
THE JOINT COMMISSION ON
ACCREDITATION OF HEALTH CARE ORGANIZATIONS, OR THE AMERICAN
ACCREDITATION HEALTHCARE COMMISSION/UTILIZATION
REVIEW ACCREDITATION COMMISSION. THE SUPERINTENDENT, UPON
REVIEW OF THE ORGANIZATION'S ACCREDITATION PROCESS, MAY
DETERMINE THAT SUCH ACCREDITATION CONSTITUTES COMPLIANCE BY THE
HEALTH INSURING CORPORATION WITH THE REQUIREMENTS OF THESE
SECTIONS.
Sec. 1751.77. AS USED IN SECTIONS 1751.77 TO 1751.86 of the Revised Code, UNLESS
OTHERWISE SPECIFICALLY PROVIDED:
(A) "ADVERSE DETERMINATION" MEANS A DETERMINATION BY A HEALTH
INSURING CORPORATION OR ITS DESIGNEE UTILIZATION REVIEW ORGANIZATION THAT AN
ADMISSION,
AVAILABILITY OF CARE, CONTINUED STAY, OR OTHER HEALTH CARE SERVICE
COVERED UNDER A POLICY, CONTRACT, OR AGREEMENT OF THE HEALTH INSURING
CORPORATION
HAS BEEN
REVIEWED AND, BASED UPON THE INFORMATION PROVIDED, THE HEALTH CARE SERVICE
DOES NOT MEET THE HEALTH
INSURING CORPORATION'S REQUIREMENTS FOR BENEFIT PAYMENT, AND IS
THEREFORE DENIED, REDUCED, OR TERMINATED.
(B) "AMBULATORY REVIEW" MEANS UTILIZATION REVIEW OF HEALTH CARE
SERVICES PERFORMED OR PROVIDED IN AN OUTPATIENT SETTING.
(C) "CASE MANAGEMENT" MEANS A COORDINATED SET OF ACTIVITIES
CONDUCTED FOR INDIVIDUAL PATIENT MANAGEMENT OF SERIOUS, COMPLICATED,
PROTRACTED, OR OTHER SPECIFIED HEALTH CONDITIONS.
(D) "CERTIFICATION" MEANS A DETERMINATION BY A HEALTH INSURING
CORPORATION OR
ITS DESIGNEE UTILIZATION REVIEW ORGANIZATION THAT AN ADMISSION, AVAILABILITY
OF CARE, CONTINUED STAY, OR OTHER HEALTH CARE SERVICE
COVERED UNDER A POLICY, CONTRACT, OR AGREEMENT OF THE HEALTH INSURING
CORPORATION
HAS BEEN REVIEWED AND,
BASED UPON THE INFORMATION PROVIDED, THE HEALTH CARE SERVICE SATISFIES THE
HEALTH INSURING CORPORATION'S REQUIREMENTS
FOR BENEFIT PAYMENT.
(E) "CLINICAL PEER" MEANS A
PHYSICIAN WHEN AN EVALUATION IS TO BE MADE OF THE CLINICAL
APPROPRIATENESS OF HEALTH CARE SERVICES PROVIDED BY A PHYSICIAN.
IF AN EVALUATION IS TO BE MADE OF THE CLINICAL APPROPRIATENESS
OF HEALTH CARE SERVICES PROVIDED BY A PROVIDER WHO IS NOT A
PHYSICIAN, "CLINICAL PEER" MEANS EITHER A PHYSICIAN OR A
PROVIDER HOLDING THE SAME LICENSE AS THE PROVIDER WHO PROVIDED
THE HEALTH CARE SERVICES.
(F) "CLINICAL REVIEW CRITERIA" MEANS THE WRITTEN SCREENING
PROCEDURES, DECISION ABSTRACTS, CLINICAL PROTOCOLS, AND PRACTICE GUIDELINES
USED BY A HEALTH INSURING CORPORATION TO DETERMINE THE NECESSITY AND
APPROPRIATENESS OF
HEALTH CARE SERVICES.
(G) "CONCURRENT REVIEW" MEANS UTILIZATION REVIEW CONDUCTED DURING
A PATIENT'S HOSPITAL STAY OR COURSE OF TREATMENT.
(H) "DISCHARGE PLANNING" MEANS THE FORMAL PROCESS FOR
DETERMINING, PRIOR TO A PATIENT'S DISCHARGE FROM A HEALTH CARE FACILITY, THE
COORDINATION AND
MANAGEMENT OF THE CARE THAT THE PATIENT IS TO RECEIVE FOLLOWING DISCHARGE FROM
A HEALTH CARE
FACILITY.
(I) "PARTICIPATING PROVIDER" MEANS A PROVIDER OR HEALTH CARE
FACILITY THAT, UNDER A
CONTRACT WITH A HEALTH INSURING CORPORATION OR WITH ITS CONTRACTOR OR
SUBCONTRACTOR, HAS
AGREED TO PROVIDE HEALTH CARE SERVICES TO ENROLLEES WITH AN EXPECTATION
OF RECEIVING PAYMENT, OTHER THAN COINSURANCE, COPAYMENTS, OR DEDUCTIBLES,
DIRECTLY OR INDIRECTLY FROM THE HEALTH INSURING CORPORATION.
(J) "PHYSICIAN" MEANS A PROVIDER AUTHORIZED UNDER
CHAPTER 4731. OF THE
REVISED
CODE TO PRACTICE MEDICINE AND
SURGERY OR OSTEOPATHIC MEDICINE AND SURGERY.
(K) "PROSPECTIVE REVIEW" MEANS UTILIZATION REVIEW THAT IS
CONDUCTED PRIOR TO AN ADMISSION OR A COURSE OF TREATMENT.
(L) "RETROSPECTIVE REVIEW" MEANS UTILIZATION REVIEW OF MEDICAL
NECESSITY THAT IS CONDUCTED AFTER HEALTH CARE SERVICES HAVE BEEN PROVIDED TO A
PATIENT.
"RETROSPECTIVE REVIEW" DOES NOT INCLUDE THE REVIEW OF A CLAIM THAT IS LIMITED
TO AN EVALUATION OF REIMBURSEMENT LEVELS, VERACITY OF DOCUMENTATION, ACCURACY
OF CODING, OR ADJUDICATION OF PAYMENT.
(M) "SECOND OPINION" MEANS AN OPPORTUNITY OR REQUIREMENT TO
OBTAIN A CLINICAL EVALUATION BY A PROVIDER OTHER THAN THE PROVIDER ORIGINALLY
MAKING A RECOMMENDATION FOR PROPOSED HEALTH CARE SERVICES TO ASSESS THE
CLINICAL NECESSITY AND APPROPRIATENESS OF THE PROPOSED HEALTH CARE
SERVICES.
(N) "UTILIZATION REVIEW" MEANS A PROCESS USED TO MONITOR THE USE
OF, OR EVALUATE THE CLINICAL NECESSITY, APPROPRIATENESS, EFFICACY, OR
EFFICIENCY OF, HEALTH CARE SERVICES, PROCEDURES, OR SETTINGS. AREAS OF REVIEW
MAY INCLUDE AMBULATORY REVIEW, PROSPECTIVE REVIEW, SECOND OPINION,
CERTIFICATION, CONCURRENT REVIEW, CASE MANAGEMENT, DISCHARGE PLANNING, OR
RETROSPECTIVE REVIEW.
(O) "UTILIZATION REVIEW ORGANIZATION" MEANS AN ENTITY THAT
CONDUCTS UTILIZATION REVIEW, OTHER THAN A HEALTH INSURING CORPORATION
PERFORMING A
REVIEW OF ITS OWN HEALTH CARE PLANS.
Sec. 1751.78. (A)(1) SECTIONS 1751.77 TO 1751.86 OF THE
REVISED CODE APPLY TO ANY HEALTH
INSURING CORPORATION THAT PROVIDES OR PERFORMS UTILIZATION REVIEW SERVICES
IN CONNECTION WITH ITS POLICIES, CONTRACTS, AND AGREEMENTS PROVIDING BASIC
HEALTH CARE SERVICES AND TO ANY DESIGNEE OF THE HEALTH INSURING CORPORATION,
OR TO ANY UTILIZATION
REVIEW ORGANIZATION THAT PERFORMS UTILIZATION REVIEW FUNCTIONS
ON BEHALF OF THE HEALTH INSURING CORPORATION IN CONNECTION WITH POLICIES,
CONTRACTS, OR AGREEMENTS OF THE HEALTH INSURING CORPORATION PROVIDING BASIC
HEALTH CARE SERVICES.
(2) NOTHING IN SECTIONS 1751.77 TO 1751.82 OR SECTION
1751.85 OF THE REVISED CODE SHALL BE CONSTRUED TO
REQUIRE A HEALTH INSURING CORPORATION TO PROVIDE OR PERFORM
UTILIZATION REVIEW SERVICES IN CONNECTION WITH HEALTH CARE
SERVICES PROVIDED UNDER A POLICY, PLAN, OR AGREEMENT OF
SUPPLEMENTAL HEALTH CARE SERVICES OR SPECIALTY HEALTH CARE
SERVICES.
(B)(1) EACH HEALTH
INSURING CORPORATION SHALL BE RESPONSIBLE FOR MONITORING ALL UTILIZATION
REVIEW ACTIVITIES CARRIED OUT BY, OR ON BEHALF OF, THE HEALTH
INSURING CORPORATION AND FOR ENSURING THAT ALL REQUIREMENTS OF SECTIONS
1751.77 TO 1751.86 OF THE REVISED CODE, AND ANY RULES
ADOPTED
THEREUNDER, ARE MET. THE HEALTH INSURING CORPORATION SHALL ALSO ENSURE THAT
APPROPRIATE PERSONNEL HAVE OPERATIONAL RESPONSIBILITY FOR THE
CONDUCT OF THE HEALTH INSURING CORPORATION'S UTILIZATION REVIEW
PROGRAM.
(2) IF A HEALTH INSURING CORPORATION CONTRACTS TO HAVE A UTILIZATION
REVIEW ORGANIZATION OR OTHER ENTITY PERFORM THE UTILIZATION
REVIEW FUNCTIONS REQUIRED BY SECTIONS 1751.77 TO 1751.86 OF THE
REVISED
CODE, AND ANY RULES ADOPTED
THEREUNDER, THE SUPERINTENDENT OF INSURANCE SHALL HOLD THE
HEALTH INSURING CORPORATION RESPONSIBLE FOR MONITORING THE ACTIVITIES OF THE
UTILIZATION REVIEW ORGANIZATION OR OTHER ENTITY AND FOR ENSURING
THAT THE REQUIREMENTS OF THOSE SECTIONS AND RULES ARE
MET.
Sec. 1751.79. A HEALTH INSURING CORPORATION THAT CONDUCTS UTILIZATION
REVIEW SHALL PREPARE A WRITTEN UTILIZATION REVIEW PROGRAM THAT DESCRIBES ALL
REVIEW ACTIVITIES, BOTH DELEGATED AND NONDELEGATED, FOR COVERED HEALTH CARE
SERVICES
PROVIDED, INCLUDING THE FOLLOWING:
(A) PROCEDURES TO EVALUATE THE CLINICAL NECESSITY,
APPROPRIATENESS,
EFFICACY, OR EFFICIENCY OF HEALTH CARE SERVICES;
(B) THE USE OF DATA SOURCES AND CLINICAL REVIEW CRITERIA IN
MAKING
DECISIONS;
(C) MECHANISMS TO ENSURE CONSISTENT APPLICATION OF CRITERIA AND
COMPATIBLE DECISIONS;
(D) DATA COLLECTION PROCESSES AND ANALYTICAL METHODS USED IN
ASSESSING
UTILIZATION OF HEALTH CARE SERVICES;
(E) MECHANISMS FOR ASSURING CONFIDENTIALITY OF CLINICAL AND
PROPRIETARY INFORMATION;
(F) THE PERIODIC ASSESSMENT OF UTILIZATION REVIEW
ACTIVITIES, AND THE REPORTING OF THESE ASSESSMENTS TO THE HEALTH INSURING
CORPORATION'S BOARD, BY A UTILIZATION REVIEW COMMITTEE, A QUALITY ASSURANCE
COMMITTEE, OR ANY SIMILAR COMMITTEE;
(G) THE FUNCTIONAL RESPONSIBILITY FOR DAY-TO-DAY
PROGRAM MANAGEMENT BY STAFF;
(H) DEFINED METHODS BY WHICH GUIDELINES ARE APPROVED AND
COMMUNICATED TO PROVIDERS AND HEALTH CARE FACILITIES.
Sec. 1751.80. THE UTILIZATION REVIEW PROGRAM OF A HEALTH
INSURING CORPORATION SHALL BE IMPLEMENTED IN ACCORDANCE WITH ALL OF THE
FOLLOWING:
(A) THE PROGRAM SHALL
USE DOCUMENTED CLINICAL REVIEW CRITERIA THAT ARE BASED ON SOUND
CLINICAL EVIDENCE AND ARE EVALUATED PERIODICALLY TO ASSURE
ONGOING EFFICACY. A HEALTH INSURING CORPORATION MAY DEVELOP ITS OWN CLINICAL
REVIEW CRITERIA OR MAY PURCHASE OR LICENSE SUCH CRITERIA FROM
QUALIFIED VENDORS. A HEALTH INSURING CORPORATION SHALL MAKE ITS CLINICAL
REVIEW RATIONALE AVAILABLE UPON REQUEST TO AUTHORIZED GOVERNMENT
AGENCIES. THE RATIONALE MADE AVAILABLE TO AUTHORIZED GOVERNMENT
AGENCIES IS CONFIDENTIAL AND IS NOT A PUBLIC RECORD AS DEFINED
IN SECTION 149.43 OF THE
REVISED
CODE.
(B) QUALIFIED PROVIDERS
SHALL ADMINISTER THE PROGRAM AND OVERSEE
REVIEW DETERMINATIONS. A CLINICAL PEER
IN THE SAME, OR IN A SIMILAR, SPECIALTY AS TYPICALLY MANAGES THE MEDICAL
CONDITION, PROCEDURE, OR TREATMENT UNDER REVIEW SHALL EVALUATE THE CLINICAL
APPROPRIATENESS OF ADVERSE DETERMINATIONS THAT ARE THE SUBJECT OF AN
APPEAL.
(C) THE HEALTH INSURING CORPORATION
SHALL ISSUE UTILIZATION REVIEW DETERMINATIONS IN A TIMELY MANNER
PURSUANT TO THE REQUIREMENTS OF SECTIONS 1751.81 AND 1751.82 OF
THE REVISED
CODE AND THE ENROLLEE GRIEVANCE
REQUIREMENTS. THE HEALTH INSURING CORPORATION SHALL OBTAIN INFORMATION
REQUIRED TO
MAKE A UTILIZATION REVIEW DETERMINATION, INCLUDING PERTINENT CLINICAL
INFORMATION, AND SHALL ESTABLISH A PROCESS TO ENSURE THAT
UTILIZATION REVIEWERS APPLY CLINICAL REVIEW CRITERIA
CONSISTENTLY.
(D) IF THE HEALTH
INSURING CORPORATION DELEGATES ANY UTILIZATION REVIEW ACTIVITIES TO A
UTILIZATION REVIEW ORGANIZATION, THE HEALTH INSURING CORPORATION SHALL
MAINTAIN
ADEQUATE OVERSIGHT, INCLUDING A PROCESS BY WHICH THE HEALTH INSURING
CORPORATION EVALUATES THE PERFORMANCE OF THE ORGANIZATION, AND SHALL MAINTAIN
COPIES OF BOTH OF THE
FOLLOWING:
(1) A WRITTEN DESCRIPTION OF THE ORGANIZATION'S
ACTIVITIES AND RESPONSIBILITIES, INCLUDING REPORTING
REQUIREMENTS;
(2) EVIDENCE OF FORMAL APPROVAL OF THE ORGANIZATION'S
PROGRAM BY THE HEALTH INSURING CORPORATION.
(E) THE HEALTH INSURING CORPORATION
OR ITS DESIGNEE UTILIZATION REVIEW ORGANIZATION SHALL PROVIDE
ENROLLEES AND PARTICIPATING PROVIDERS WITH ACCESS TO ITS
REVIEW STAFF BY MEANS OF A TOLL-FREE TELEPHONE
NUMBER OR COLLECT-CALL TELEPHONE LINE.
(F) WHEN CONDUCTING
PROSPECTIVE OR CONCURRENT REVIEW, THE HEALTH INSURING CORPORATION OR ITS
DESIGNEE UTILIZATION REVIEW ORGANIZATION SHALL COLLECT ONLY THE
INFORMATION NECESSARY TO CERTIFY THE ADMISSION, PROCEDURE OR
TREATMENT, LENGTH OF STAY, FREQUENCY, AND DURATION OF HEALTH CARE
SERVICES.
(G) COMPENSATION TO
PERSONS PROVIDING UTILIZATION REVIEW SERVICES FOR THE HEALTH
INSURING CORPORATION SHALL NOT CONTAIN INCENTIVES, DIRECT OR INDIRECT, FOR
THEM TO MAKE INAPPROPRIATE REVIEW DECISIONS.
Sec. 1751.81. (A) AS USED IN THIS SECTION:
(1) "ENROLLEE" INCLUDES THE REPRESENTATIVE OF AN ENROLLEE.
(2) "NECESSARY INFORMATION" INCLUDES THE RESULTS OF ANY FACE-TO-FACE
CLINICAL
EVALUATION OR SECOND OPINION THAT MAY BE REQUIRED.
(B) A HEALTH INSURING CORPORATION SHALL MAINTAIN WRITTEN
PROCEDURES FOR MAKING
UTILIZATION REVIEW DETERMINATIONS AND FOR NOTIFYING ENROLLEES, AND
PARTICIPATING PROVIDERS AND
HEALTH CARE FACILITIES
ACTING ON BEHALF OF ENROLLEES, OF ITS DETERMINATIONS.
(C) FOR INITIAL DETERMINATIONS, A HEALTH INSURING CORPORATION
SHALL MAKE THE
DETERMINATION WITHIN TWO BUSINESS DAYS AFTER OBTAINING ALL NECESSARY
INFORMATION
REGARDING A PROPOSED ADMISSION, PROCEDURE, OR HEALTH CARE SERVICE REQUIRING A
REVIEW
DETERMINATION.
(1) IN THE CASE OF A DETERMINATION TO CERTIFY AN ADMISSION, PROCEDURE, OR
HEALTH CARE SERVICE, THE HEALTH INSURING CORPORATION SHALL NOTIFY THE PROVIDER
OR HEALTH CARE FACILITY RENDERING THE HEALTH CARE SERVICE BY
TELEPHONE WITHIN THREE BUSINESS DAYS AFTER MAKING THE INITIAL CERTIFICATION,
AND
SHALL PROVIDE WRITTEN OR ELECTRONIC CONFIRMATION OF THE TELEPHONE NOTIFICATION
TO THE ENROLLEE AND THE PROVIDER OR HEALTH CARE FACILITY WITHIN TWO BUSINESS
DAYS AFTER MAKING THE
TELEPHONE NOTIFICATION.
(2) IN THE CASE OF AN ADVERSE DETERMINATION, THE HEALTH INSURING
CORPORATION SHALL NOTIFY THE
PROVIDER OR HEALTH CARE FACILITY RENDERING THE HEALTH CARE SERVICE BY
TELEPHONE WITHIN THREE BUSINESS DAYS AFTER MAKING
THE ADVERSE DETERMINATION, AND SHALL PROVIDE WRITTEN OR ELECTRONIC
CONFIRMATION OF THE TELEPHONE NOTIFICATION TO THE ENROLLEE AND THE
PROVIDER OR HEALTH CARE FACILITY WITHIN ONE BUSINESS DAY AFTER MAKING THE
TELEPHONE NOTIFICATION.
(D) FOR CONCURRENT REVIEW DETERMINATIONS, A HEALTH INSURING
CORPORATION SHALL
MAKE THE DETERMINATION WITHIN ONE BUSINESS DAY AFTER OBTAINING ALL NECESSARY
INFORMATION.
(1) IN THE CASE OF A DETERMINATION TO CERTIFY AN EXTENDED STAY OR
ADDITIONAL HEALTH CARE SERVICES, THE HEALTH INSURING CORPORATION SHALL NOTIFY
THE PROVIDER OR HEALTH CARE FACILITY
RENDERING THE HEALTH CARE SERVICE BY TELEPHONE WITHIN ONE BUSINESS DAY AFTER
MAKING THE CERTIFICATION, AND
SHALL PROVIDE WRITTEN OR ELECTRONIC CONFIRMATION TO THE ENROLLEE AND THE
PROVIDER OR HEALTH CARE FACILITY WITHIN ONE BUSINESS DAY AFTER THE TELEPHONE
NOTIFICATION. THE WRITTEN NOTIFICATION SHALL INCLUDE THE NUMBER OF EXTENDED
DAYS OR NEXT REVIEW DATE, THE NEW TOTAL NUMBER OF DAYS OF HEALTH CARE SERVICES
APPROVED,
AND THE DATE OF ADMISSION OR INITIATION OF HEALTH CARE SERVICES.
(2) IN THE CASE OF AN ADVERSE DETERMINATION, THE HEALTH INSURING
CORPORATION SHALL NOTIFY THE PROVIDER OR HEALTH CARE FACILITY RENDERING THE
HEALTH CARE SERVICE BY TELEPHONE WITHIN ONE BUSINESS DAY AFTER
MAKING THE ADVERSE DETERMINATION, AND SHALL PROVIDE WRITTEN OR ELECTRONIC
CONFIRMATION TO THE ENROLLEE AND THE PROVIDER OR HEALTH CARE FACILITY
WITHIN ONE BUSINESS DAY AFTER
THE TELEPHONE NOTIFICATION. THE HEALTH CARE SERVICE TO THE ENROLLEE SHALL BE
CONTINUED, WITH
STANDARD COPAYMENTS AND DEDUCTIBLES, IF APPLICABLE, UNTIL THE ENROLLEE HAS
BEEN NOTIFIED OF THE
DETERMINATION.
(E) FOR RETROSPECTIVE REVIEW DETERMINATIONS, A HEALTH INSURING
CORPORATION
SHALL MAKE
THE DETERMINATION WITHIN THIRTY BUSINESS DAYS AFTER RECEIVING ALL NECESSARY
INFORMATION.
(1) IN THE CASE OF A CERTIFICATION, THE HEALTH INSURING CORPORATION MAY
NOTIFY THE
ENROLLEE AND THE PROVIDER OR HEALTH CARE FACILITY RENDERING THE HEALTH CARE
SERVICE IN WRITING.
(2) IN THE CASE OF AN ADVERSE DETERMINATION, THE HEALTH INSURING
CORPORATION SHALL NOTIFY
THE ENROLLEE AND THE PROVIDER OR HEALTH CARE FACILITY RENDERING THE HEALTH
CARE SERVICE, IN WRITING, WITHIN FIVE
BUSINESS DAYS AFTER MAKING THE ADVERSE DETERMINATION.
(F) THE TIME FRAMES SET FORTH IN DIVISIONS (C),
(D), AND (E) OF THIS SECTION FOR DETERMINATIONS AND
NOTIFICATIONS SHALL PREVAIL UNLESS THE SERIOUSNESS OF THE MEDICAL CONDITION OF
THE ENROLLEE OTHERWISE REQUIRES A MORE TIMELY RESPONSE FROM THE HEALTH
INSURING CORPORATION. THE HEALTH INSURING CORPORATION SHALL MAINTAIN WRITTEN
PROCEDURES FOR
MAKING EXPEDITED UTILIZATION REVIEW DETERMINATIONS AND NOTIFICATIONS OF
ENROLLEES AND
PROVIDERS OR HEALTH CARE FACILITIES WHEN WARRANTED BY THE MEDICAL CONDITION
OF THE ENROLLEE.
(G) A WRITTEN NOTIFICATION OF AN ADVERSE DETERMINATION SHALL
INCLUDE THE PRINCIPAL REASON OR REASONS FOR THE DETERMINATION, INSTRUCTIONS
FOR INITIATING AN APPEAL OR RECONSIDERATION OF THE DETERMINATION, AND
INSTRUCTIONS FOR REQUESTING A WRITTEN STATEMENT OF THE CLINICAL RATIONALE
USED TO MAKE THE DETERMINATION. A HEALTH INSURING CORPORATION SHALL PROVIDE
THE CLINICAL
RATIONALE FOR AN ADVERSE DETERMINATION IN WRITING
TO ANY PARTY WHO RECEIVED
NOTICE OF THE ADVERSE DETERMINATION AND WHO FOLLOWS THE INSTRUCTIONS FOR A
REQUEST.
(H) A HEALTH INSURING CORPORATION SHALL HAVE WRITTEN PROCEDURES
TO
ADDRESS THE
FAILURE OR INABILITY OF A HEALTH CARE FACILITY, PROVIDER, OR ENROLLEE TO
PROVIDE ALL
NECESSARY INFORMATION FOR REVIEW. IF THE HEALTH CARE FACILITY, PROVIDER, OR
ENROLLEE WILL NOT
RELEASE NECESSARY INFORMATION, THE HEALTH INSURING CORPORATION MAY DENY
CERTIFICATION.
Sec. 1751.82. (A) IN A
CASE INVOLVING AN INITIAL DETERMINATION OR A CONCURRENT REVIEW
DETERMINATION, A HEALTH INSURING CORPORATION SHALL GIVE THE PROVIDER OR HEALTH
CARE FACILITY
RENDERING THE HEALTH CARE SERVICE AN OPPORTUNITY TO REQUEST IN WRITING ON
BEHALF OF THE ENROLLEE A RECONSIDERATION OF AN ADVERSE
DETERMINATION BY THE REVIEWER MAKING THE ADVERSE DETERMINATION.
THE RECONSIDERATION SHALL OCCUR WITHIN THREE BUSINESS DAYS AFTER
THE HEALTH INSURING CORPORATION'S RECEIPT OF THE WRITTEN REQUEST FOR
RECONSIDERATION, AND SHALL BE CONDUCTED BETWEEN
THE PROVIDER OR HEALTH CARE FACILITY RENDERING THE HEALTH CARE SERVICE AND THE
REVIEWER WHO MADE THE
ADVERSE DETERMINATION. IF THAT REVIEWER CANNOT BE AVAILABLE
WITHIN THREE BUSINESS DAYS, THE REVIEWER MAY DESIGNATE ANOTHER REVIEWER.
(B) IF THE RECONSIDERATION PROCESS DESCRIBED IN DIVISION
(A) OF THIS SECTION DOES NOT
RESOLVE THE DIFFERENCE OF OPINION, THE ADVERSE DETERMINATION MAY
BE APPEALED BY THE ENROLLEE OR THE PROVIDER OR HEALTH CARE FACILITY ON BEHALF
OF THE ENROLLEE.
(C) RECONSIDERATION IS NOT A PREREQUISITE TO A STANDARD OR
EXPEDITED APPEAL OF AN ADVERSE DETERMINATION.
(D) THE TIME PERIOD
ALLOWED BY DIVISION (A) OF THIS SECTION FOR A
RECONSIDERATION OF AN ADVERSE DETERMINATION SHALL NOT APPLY IF
THE SERIOUSNESS OF THE MEDICAL CONDITION OF THE ENROLLEE
REQUIRES A MORE EXPEDITED RECONSIDERATION. THE HEALTH INSURING
CORPORATION SHALL MAINTAIN WRITTEN PROCEDURES FOR MAKING SUCH AN
EXPEDITED RECONSIDERATION.
Sec. 1751.83. A HEALTH INSURING
CORPORATION MAY PRESENT EVIDENCE OF COMPLIANCE WITH THE
REQUIREMENTS OF SECTIONS 1751.77 TO 1751.82 of the Revised Code BY SUBMITTING EVIDENCE
TO THE SUPERINTENDENT OF INSURANCE OF ITS ACCREDITATION BY AN INDEPENDENT,
PRIVATE ACCREDITING ORGANIZATION, SUCH AS THE NATIONAL COMMITTEE
ON QUALITY ASSURANCE, THE NATIONAL QUALITY HEALTH COUNCIL, THE JOINT
COMMISSION ON ACCREDITATION OF
HEALTH CARE ORGANIZATIONS, OR THE AMERICAN ACCREDITATION HEALTHCARE
COMMISSION/UTILIZATION REVIEW
ACCREDITATION COMMISSION. THE SUPERINTENDENT, UPON REVIEW OF
THE ORGANIZATION'S ACCREDITATION PROCESS, MAY DETERMINE THAT
SUCH ACCREDITATION CONSTITUTES COMPLIANCE BY THE HEALTH INSURING
CORPORATION WITH THE REQUIREMENTS OF THESE SECTIONS.
Sec. 1751.84. EACH PARTICIPATING PROVIDER OR HEALTH CARE FACILITY
SUBMITTING A CLAIM SHALL COOPERATE WITH THE
UTILIZATION REVIEW PROGRAM OF A HEALTH INSURING CORPORATION OR UTILIZATION
REVIEW ORGANIZATION AND SHALL PROVIDE THE HEALTH INSURING CORPORATION OR ITS
DESIGNEE ACCESS TO AN ENROLLEE'S MEDICAL RECORDS DURING REGULAR
BUSINESS HOURS, OR COPIES OF THOSE RECORDS AT A REASONABLE
COST.
Sec. 1751.85. A HEALTH INSURING CORPORATION SHALL ANNUALLY FILE A
CERTIFICATE WITH THE SUPERINTENDENT OF INSURANCE CERTIFYING ITS
COMPLIANCE WITH SECTIONS 1751.77 TO 1751.82 OF THE
REVISED
CODE.
Sec. 1751.86. (A) NO
HEALTH INSURING CORPORATION SHALL FAIL TO COMPLY WITH SECTIONS 1751.77 TO
1751.82 OF THE REVISED CODE.
(B) WHOEVER VIOLATES
DIVISION (A) OF THIS SECTION IS
DEEMED TO HAVE ENGAGED IN AN UNFAIR AND DECEPTIVE ACT OR
PRACTICE IN THE BUSINESS OF INSURANCE UNDER SECTIONS 3901.19 TO
3901.26 OF THE REVISED CODE.
Sec. 1753.01. AS USED IN THIS CHAPTER:
(A) "ECONOMIC PROFILING" MEANS A HEALTH INSURING
CORPORATION'S USE OF ECONOMIC PERFORMANCE DATA AND ECONOMIC
INFORMATION IN DETERMINING WHETHER TO CONTRACT WITH A PROVIDER
FOR THE PROVISION OF COVERED HEALTH CARE SERVICES TO ENROLLEES
AS A PARTICIPATING PROVIDER.
(B) "BASIC HEALTH CARE SERVICES," "ENROLLEE," "HEALTH CARE
FACILITY," "HEALTH CARE SERVICES," "HEALTH INSURING CORPORATION," "MEDICAL
RECORD," "PROVIDER," AND "SUPPLEMENTAL HEALTH CARE SERVICES" HAVE THE SAME
MEANINGS AS IN SECTION 1751.01 OF
THE REVISED CODE.
Sec. 1753.03. THE SUPERINTENDENT OF INSURANCE SHALL
PRESCRIBE A STANDARD CREDENTIALING FORM TO BE USED BY ALL HEALTH
INSURING CORPORATIONS WHEN CREDENTIALING PROVIDERS IN CONNECTION WITH
POLICIES, CONTRACTS, AND AGREEMENTS PROVIDING BASIC HEALTH CARE SERVICES. THE
DIRECTOR OF HEALTH MAY MAKE RECOMMENDATIONS TO THE
SUPERINTENDENT FOR SUCH A STANDARD CREDENTIALING FORM. IF THE
DIRECTOR MAKES SUCH RECOMMENDATIONS, THE DIRECTOR SHALL TAKE
INTO CONSIDERATION THE STANDARD CREDENTIALING FORMS DEVELOPED BY
THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS, THE
AMERICAN MEDICAL ASSOCIATION,
THE AMERICAN ASSOCIATION OF
HEALTH PLANS, AND ANY OTHER NATIONAL ORGANIZATION THAT HAS
DEVELOPED SUCH A FORM. IN PRESCRIBING A STANDARD CREDENTIALING
FORM, THE SUPERINTENDENT SHALL CONSIDER ANY RECOMMENDATIONS MADE
BY THE DIRECTOR. THE SUPERINTENDENT MAY AMEND OR REVISE THE
PRESCRIBED STANDARD CREDENTIALING FORM AS NECESSARY.
Sec. 1753.04. BEGINNING ONE HUNDRED TWENTY DAYS AFTER THE
SUPERINTENDENT OF INSURANCE PRESCRIBES A STANDARD CREDENTIALING
FORM UNDER SECTION 1753.03 OF THE
REVISED
CODE, NO HEALTH INSURING
CORPORATION SHALL FAIL TO USE THE PRESCRIBED STANDARD
CREDENTIALING FORM WHEN INITIALLY CREDENTIALING OR
RECREDENTIALING PROVIDERS IN CONNECTION WITH POLICIES, CONTRACTS, AND
AGREEMENTS PROVIDING BASIC HEALTH CARE SERVICES. IF THE SUPERINTENDENT AMENDS
OR
REVISES THE STANDARD CREDENTIALING FORM, A HEALTH INSURING
CORPORATION SHALL USE THE AMENDED OR REVISED FORM TO CREDENTIAL
OR RECREDENTIAL PROVIDERS.
A HEALTH INSURING CORPORATION MAY REQUEST SUCH
INFORMATION FROM A PROVIDER, IN ADDITION TO THAT INFORMATION TO BE PROVIDED ON
THE STANDARD CREDENTIALING FORM, AS NECESSITATED BY THE
HEALTH INSURING CORPORATION'S CREDENTIALING STANDARDS.
Sec. 1753.05. (A) A HEALTH INSURING CORPORATION
MAY USE ECONOMIC PROFILING AS A FACTOR IN CREDENTIALING A
PROVIDER, HOWEVER, SUCH ECONOMIC PROFILING SHALL TAKE INTO
CONSIDERATION THE CASE MIX, SEVERITY OF ILLNESS, AND AGE OF
PATIENTS.
(B) FOR AN INITIAL APPLICANT, A HEALTH INSURING
CORPORATION MAY REQUEST INFORMATION NECESSARY TO PERFORM AN
ECONOMIC PROFILE. IF INFORMATION ON CASE MIX, SEVERITY OF
ILLNESS, AND AGE OF PATIENTS IS REQUESTED BY A HEALTH INSURING
CORPORATION AND NOT PRODUCED BY THE APPLICANT, THE HEALTH
INSURING CORPORATION IS NOT REQUIRED TO TAKE THESE FACTORS INTO
CONSIDERATION IN ITS ECONOMIC PROFILE OF THE PROVIDER.
(C) NOTHING IN THIS SECTION PROHIBITS A HEALTH
INSURING CORPORATION FROM TAKING INTO CONSIDERATION THE QUALITY
AND APPROPRIATENESS OF CARE PROVIDED BY A PROVIDER WHEN DECIDING
WHETHER TO EMPLOY, CONTRACT WITH, OR TERMINATE THE
PROVIDER.
Sec. 1753.06. A HEALTH INSURING CORPORATION SHALL NOTIFY
A PROVIDER SEEKING TO ENTER INTO A PARTICIPATION CONTRACT WITH THE HEALTH
INSURING CORPORATION OF THE STATUS OF THE PROVIDER'S APPLICATION WITHIN
ONE HUNDRED TWENTY DAYS AFTER THE HEALTH INSURING CORPORATION'S RECEIPT OF
THE PROVIDER'S COMPLETED APPLICATION. THAT TIME PERIOD MAY BE
EXTENDED BY A HEALTH INSURING CORPORATION IF, DUE TO EXTENUATING
CIRCUMSTANCES, THE HEALTH INSURING CORPORATION NEEDS ADDITIONAL
TIME TO CONSIDER THE APPLICATION AND NOTIFIES THE PROVIDER OF
THE REASON FOR THE DELAY.
Sec. 1753.07. (A) PRIOR TO ENTERING INTO A
PARTICIPATION CONTRACT WITH A PROVIDER UNDER
SECTION 1751.13 OF THE REVISED CODE, A HEALTH INSURING
CORPORATION SHALL DISCLOSE BASIC INFORMATION REGARDING ITS
PROGRAMS AND PROCEDURES TO THE PROVIDER, UPON THE PROVIDER'S
REQUEST. THE INFORMATION SHALL INCLUDE ALL OF THE FOLLOWING:
(1) HOW A PARTICIPATING PROVIDER IS REIMBURSED FOR THE PARTICIPATING
PROVIDER'S
SERVICES, INCLUDING THE RANGE AND STRUCTURE OF
ANY FINANCIAL RISK SHARING ARRANGEMENTS, A DESCRIPTION OF
ANY INCENTIVE PLANS, AND, IF REIMBURSED ACCORDING TO A TYPE OF
FEE-FOR-SERVICE ARRANGEMENT, THE LEVEL OF REIMBURSEMENT FOR THE
PARTICIPATING PROVIDER'S SERVICES;
(2) HOW REFERRALS TO OTHER PARTICIPATING PROVIDERS OR TO
NONPARTICIPATING PROVIDERS ARE MADE;
(3) THE AVAILABILITY OF DISPUTE RESOLUTION PROCEDURES AND
THE POTENTIAL FOR COST TO BE INCURRED;
(4) HOW A PARTICIPATING PROVIDER'S NAME AND ADDRESS WILL BE USED IN
MARKETING MATERIALS.
(B) A HEALTH INSURING CORPORATION SHALL PROVIDE
ALL OF THE FOLLOWING TO A PARTICIPATING PROVIDER:
(1) ANY MATERIAL INCORPORATED BY REFERENCE INTO THE
PARTICIPATION CONTRACT, THAT IS NOT OTHERWISE AVAILABLE AS A PUBLIC RECORD, IF
SUCH MATERIAL AFFECTS THE PARTICIPATING PROVIDER;
(2) ADMINISTRATIVE MANUALS RELATED TO PROVIDER
PARTICIPATION, IF ANY;
(3) A SIGNED AND DATED COPY OF THE FINAL PARTICIPATION
CONTRACT.
Sec. 1753.08. (A) A HEALTH INSURING CORPORATION SHALL NOTIFY A
PARTICIPATING
PROVIDER PRIOR TO THE EFFECTIVE DATE OF AN AMENDMENT TO THE PARTICIPATING
PROVIDER'S CONTRACT
WITH THE HEALTH INSURING CORPORATION, AND PRIOR TO THE EFFECTIVE DATE OF AN
AMENDMENT TO ANY
DOCUMENT INCORPORATED BY REFERENCE INTO THE CONTRACT IF THE
AMENDMENT OF THE DOCUMENT DIRECTLY AND MATERIALLY AFFECTS THE PARTICIPATING
PROVIDER.
SUCH AMENDMENTS SHALL NOT BE EFFECTIVE WITH REGARD TO A
PARTICIPATING PROVIDER UNTIL THE PARTICIPATING PROVIDER HAS HAD
REASONABLE TIME, AS DEFINED IN THE CONTRACT, TO EXERCISE THE
PARTICIPATING PROVIDER'S RIGHT TO TERMINATE ITS PARTICIPATION
STATUS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
CONTRACT.
(B) DIVISION (A)
OF THIS SECTION DOES NOT APPLY IF THE DELAY CAUSED BY COMPLIANCE
WITH THAT DIVISION COULD RESULT IN IMMINENT HARM TO AN ENROLLEE
OR IF THE AMENDMENT IS REQUIRED BY STATE OR FEDERAL LAW, RULE,
OR REGULATION.
Sec. 1753.09. (A) EXCEPT AS PROVIDED IN DIVISION
(D) OF THIS SECTION, PRIOR TO
TERMINATING THE PARTICIPATION OF A PROVIDER ON THE
BASIS OF THE PARTICIPATING PROVIDER'S FAILURE TO MEET THE HEALTH INSURING
CORPORATION'S STANDARDS FOR QUALITY OR UTILIZATION IN THE DELIVERY OF HEALTH
CARE
SERVICES, A HEALTH INSURING CORPORATION SHALL GIVE THE
PARTICIPATING PROVIDER NOTICE OF THE REASON OR REASONS FOR ITS
DECISION TO TERMINATE THE PROVIDER'S PARTICIPATION AND AN OPPORTUNITY TO TAKE
CORRECTIVE ACTION. THE HEALTH INSURING CORPORATION SHALL
DEVELOP A PERFORMANCE IMPROVEMENT PLAN IN CONJUNCTION WITH THE
PARTICIPATING PROVIDER. IF AFTER BEING AFFORDED THE OPPORTUNITY
TO COMPLY WITH THE PERFORMANCE IMPROVEMENT PLAN, THE PARTICIPATING PROVIDER
FAILS TO DO SO, THE HEALTH INSURING CORPORATION MAY TERMINATE THE
PARTICIPATION OF THE PROVIDER.
(B)(1) A PARTICIPATING PROVIDER WHOSE PARTICIPATION HAS
BEEN TERMINATED UNDER DIVISION
(A) OF THIS SECTION MAY APPEAL
THE TERMINATION TO THE APPROPRIATE MEDICAL DIRECTOR OF THE
HEALTH INSURING CORPORATION. THE MEDICAL DIRECTOR SHALL GIVE
THE PARTICIPATING PROVIDER AN OPPORTUNITY TO DISCUSS WITH THE
MEDICAL DIRECTOR THE REASON OR REASONS FOR THE TERMINATION.
(2) IF A SATISFACTORY RESOLUTION OF A PARTICIPATING
PROVIDER'S APPEAL CANNOT BE REACHED UNDER DIVISION
(B)(1)OF THIS SECTION, THE PARTICIPATING PROVIDER
MAY APPEAL THE TERMINATION TO A PANEL COMPOSED OF PARTICIPATING
PROVIDERS
WHO HAVE COMPARABLE OR HIGHER LEVELS OF
EDUCATION AND TRAINING THAN THE PARTICIPATING PROVIDER MAKING
THE APPEAL. A REPRESENTATIVE OF THE PARTICIPATING PROVIDER'S
SPECIALTY SHALL BE A MEMBER OF THE PANEL, IF POSSIBLE. THIS
PANEL SHALL HOLD A HEARING, AND SHALL RENDER ITS RECOMMENDATION IN THE
APPEAL WITHIN THIRTY DAYS AFTER HOLDING THE HEARING. THE
RECOMMENDATION SHALL BE PRESENTED TO THE MEDICAL DIRECTOR AND TO THE
PARTICIPATING PROVIDER.
(3) THE MEDICAL DIRECTOR SHALL REVIEW AND CONSIDER THE
PANEL'S RECOMMENDATION BEFORE MAKING A DECISION. THE DECISION
RENDERED BY THE MEDICAL DIRECTOR SHALL BE FINAL.
(C) A
PROVIDER'S STATUS AS A PARTICIPATING PROVIDER SHALL REMAIN IN EFFECT DURING
THE APPEAL
PROCESS SET FORTH IN DIVISION (B) OF THIS
SECTION UNLESS THE TERMINATION WAS BASED ON ANY OF THE REASONS
LISTED IN DIVISION (D) OF THIS
SECTION.
(D) NOTWITHSTANDING DIVISION (A) OF THIS SECTION, A
PROVIDER'S PARTICIPATION MAY BE
IMMEDIATELY TERMINATED IF THE PARTICIPATING PROVIDER'S CONDUCT PRESENTS AN
IMMINENT RISK OF HARM TO
AN ENROLLEE OR ENROLLEES; OR IF THERE HAS OCCURRED UNACCEPTABLE
QUALITY OF CARE, FRAUD, PATIENT ABUSE, LOSS OF CLINICAL
PRIVILEGES, LOSS OF PROFESSIONAL LIABILITY COVERAGE, INCOMPETENCE, OR LOSS OF
AUTHORITY TO PRACTICE IN THE PARTICIPATING PROVIDER'S FIELD; OR IF A
GOVERNMENTAL ACTION HAS
IMPAIRED THE PARTICIPATING PROVIDER'S ABILITY TO PRACTICE.
(E) DIVISIONS (A) TO (D) OF THIS SECTION APPLY
ONLY TO PROVIDERS WHO ARE NATURAL PERSONS.
(F)(1) NOTHING IN THIS
SECTION PROHIBITS A HEALTH INSURING CORPORATION FROM REJECTING A
PROVIDER'S APPLICATION FOR PARTICIPATION, OR FROM
TERMINATING A PARTICIPATING PROVIDER'S CONTRACT, IF THE HEALTH
INSURING CORPORATION DETERMINES THAT THE HEALTH CARE NEEDS OF
ITS ENROLLEES ARE BEING MET AND NO NEED EXISTS FOR THE
PROVIDER'S OR PARTICIPATING PROVIDER'S SERVICES.
(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING A HEALTH
INSURING CORPORATION FROM TERMINATING A PARTICIPATING PROVIDER WHO DOES NOT
MEET THE TERMS
AND CONDITIONS OF THE PARTICIPATING PROVIDER'S CONTRACT.
(G) THE SUPERINTENDENT OF INSURANCE MAY ADOPT
RULES AS NECESSARY TO IMPLEMENT AND ENFORCE SECTIONS 1753.04 TO
1753.09 OF THE REVISED
CODE. SUCH RULES SHALL BE
ADOPTED IN ACCORDANCE WITH
CHAPTER 119. OF THE
REVISED
CODE. THE DIRECTOR OF HEALTH
MAY MAKE RECOMMENDATIONS TO THE SUPERINTENDENT FOR RULES
NECESSARY TO IMPLEMENT AND ENFORCE SECTIONS 1753.04 TO 1753.09
OF THE REVISED
CODE. IN ADOPTING ANY RULES
PURSUANT TO THIS DIVISION, THE SUPERINTENDENT SHALL CONSIDER THE
RECOMMENDATIONS OF THE DIRECTOR.
Sec. 1753.10. NOTHING IN THIS CHAPTER OR
CHAPTER 1751. OF THE
REVISED
CODE REQUIRES A HEALTH INSURING
CORPORATION TO EMPLOY OR CONTRACT WITH, OR PROHIBITS A HEALTH
INSURING CORPORATION FROM EMPLOYING OR CONTRACTING WITH, ANY
CATEGORY OF PROVIDER FOR THE PROVISION OF BASIC OR SUPPLEMENTAL
HEALTH CARE SERVICES, WHICH HEALTH CARE SERVICES ARE WITHIN THE
RECOGNIZED SCOPE OF PRACTICE OF THAT CATEGORY OF
PROVIDER.
Sec. 1753.14. (A) A HEALTH INSURING CORPORATION
THAT DOES NOT ALLOW DIRECT ACCESS TO ALL SPECIALISTS SHALL
ESTABLISH AND IMPLEMENT A PROCEDURE BY WHICH AN ENROLLEE MAY
RECEIVE A STANDING REFERRAL TO A SPECIALIST. THE PROCEDURE
SHALL PROVIDE FOR A STANDING REFERRAL TO A SPECIALIST IF A
PRIMARY CARE PROVIDER DETERMINES IN CONSULTATION WITH A
SPECIALIST THAT AN ENROLLEE NEEDS CONTINUING CARE FROM
A SPECIALIST. THE REFERRAL SHALL BE MADE PURSUANT TO A
TREATMENT PLAN APPROVED BY THE HEALTH INSURING CORPORATION IN
CONSULTATION WITH THE PRIMARY CARE PROVIDER, A SPECIALIST,
AND THE ENROLLEE. THE TREATMENT PLAN MAY LIMIT THE NUMBER OF
VISITS TO THE SPECIALIST, LIMIT THE PERIOD OF TIME THAT THE
VISITS ARE AUTHORIZED, OR REQUIRE THAT THE SPECIALIST PROVIDE
THE PRIMARY CARE PROVIDER WITH REGULAR REPORTS ON THE HEALTH
CARE PROVIDED TO THE ENROLLEE.
(B) A HEALTH INSURING
CORPORATION SHALL ESTABLISH AND IMPLEMENT A PROCEDURE BY WHICH
AN ENROLLEE WITH A CONDITION OR DISEASE THAT REQUIRES
SPECIALIZED MEDICAL CARE OVER A PROLONGED PERIOD OF TIME AND IS
LIFE-THREATENING, DEGENERATIVE, OR DISABLING MAY RECEIVE A
REFERRAL TO A SPECIALIST WHO HAS EXPERTISE IN TREATING THE
CONDITION OR DISEASE FOR THE PURPOSE OF HAVING THE SPECIALIST
COORDINATE THE ENROLLEE'S HEALTH CARE.
THE PROCEDURE SHALL PROVIDE FOR SUCH A REFERRAL IF A
PRIMARY CARE PROVIDER DETERMINES IN CONSULTATION WITH THE
SPECIALIST THAT THE ENROLLEE NEEDS THE SPECIALIST'S
EXPERTISE.
THE REFERRAL SHALL BE
MADE PURSUANT TO A TREATMENT PLAN APPROVED BY THE HEALTH
INSURING CORPORATION IN CONSULTATION WITH THE PRIMARY CARE
PROVIDER, THE SPECIALIST, AND THE ENROLLEE. AFTER THE REFERRAL IS
MADE, THE SPECIALIST IS AUTHORIZED TO PROVIDE HEALTH CARE
SERVICES TO THE ENROLLEE IN THE SAME MANNER AS THE ENROLLEE'S
PRIMARY CARE PROVIDER, SUBJECT TO THE TERMS OF THE TREATMENT
PLAN.
(C) THE DETERMINATIONS
DESCRIBED IN DIVISIONS (A) AND
(B) OF THIS SECTION SHALL BE
MADE WITHIN THREE BUSINESS DAYS AFTER A REQUEST FOR THE
DETERMINATION IS MADE BY THE ENROLLEE OR THE ENROLLEE'S PRIMARY
CARE PROVIDER AND ALL APPROPRIATE MEDICAL RECORDS AND OTHER
ITEMS OF INFORMATION NECESSARY TO MAKE THE DETERMINATION HAVE BEEN
PROVIDED.
(D) ONCE A DETERMINATION IN FAVOR OF A REFERRAL IS MADE, THE
REFERRAL SHALL BE
MADE WITHIN FOUR BUSINESS DAYS AFTER THE DETERMINATION.
THIS TIME PERIOD DOES NOT APPLY TO STANDING REFERRALS
INVOLVING A RARE OR UNUSUAL CONDITION FOR WHICH APPROPRIATE
SPECIALISTS ARE LIMITED IN NUMBER OR OTHERWISE DIFFICULT TO
IDENTIFY.
DIVISIONS (A) AND
(B) OF THIS SECTION DO NOT
REQUIRE A HEALTH INSURING CORPORATION TO PERMIT AN ENROLLEE TO
ELECT REFERRAL TO A SPECIALIST WHO IS NOT EMPLOYED BY OR UNDER
CONTRACT WITH THE HEALTH INSURING CORPORATION FOR THE PROVISION
OF HEALTH CARE SERVICES TO THE HEALTH INSURING CORPORATION'S
ENROLLEES.
Sec. 1753.16. A HEALTH INSURING CORPORATION OR
UTILIZATION REVIEW ORGANIZATION THAT AUTHORIZES A PROPOSED
ADMISSION, TREATMENT, OR HEALTH CARE SERVICE BY A PARTICIPATING PROVIDER
BASED UPON THE COMPLETE AND ACCURATE SUBMISSION OF ALL NECESSARY INFORMATION
RELATIVE TO AN ELIGIBLE ENROLLEE SHALL NOT RETROACTIVELY DENY
THIS AUTHORIZATION IF THE PROVIDER RENDERS THE HEALTH CARE
SERVICE IN GOOD FAITH AND PURSUANT TO THE AUTHORIZATION AND ALL
OF THE TERMS AND CONDITIONS OF THE PROVIDER'S CONTRACT WITH THE
HEALTH INSURING CORPORATION.
Sec. 1753.21. (A) IF A POLICY, CONTRACT, OR AGREEMENT OF A
HEALTH INSURING
CORPORATION USES A
RESTRICTED FORMULARY OF PRESCRIPTION DRUGS, THE HEALTH
INSURING CORPORATION SHALL DO BOTH OF THE FOLLOWING:
(1) DEVELOP SUCH A FORMULARY IN CONSULTATION WITH AND
WITH THE APPROVAL OF A PHARMACY AND THERAPEUTICS COMMITTEE, A
MAJORITY OF THE MEMBERS OF WHICH ARE PHYSICIANS AFFILIATED WITH
THE HEALTH INSURING CORPORATION WHO MAY PRESCRIBE PRESCRIPTION
DRUGS AND PHARMACISTS AFFILIATED WITH THE HEALTH INSURING
CORPORATION; OR IN CONSULTATION WITH AND WITH THE APPROVAL OF A
PHARMACY AND THERAPEUTICS COMMITTEE
THAT IS INDEPENDENT OF THE HEALTH INSURING
CORPORATION CONSISTING OF PHYSICIANS WHO MAY PRESCRIBE
PRESCRIPTION DRUGS IN THEIR STATE OF LICENSURE AND PHARMACISTS
WHO ARE AUTHORIZED TO PRACTICE IN THEIR STATE OF
LICENSURE;
(2) ESTABLISH A PROCEDURE BY WHICH AN ENROLLEE MAY
OBTAIN, WITHOUT PENALTY OR ADDITIONAL COST SHARING BEYOND THAT
PROVIDED FOR FORMULARY DRUGS UNDER THE ENROLLEE'S CONTRACT WITH
THE HEALTH INSURING CORPORATION, COVERAGE OF A SPECIFIC
NONFORMULARY DRUG WHEN THE PRESCRIBER DOCUMENTS IN THE
ENROLLEE'S MEDICAL RECORD AND CERTIFIES THAT THE FORMULARY
ALTERNATIVE HAS BEEN INEFFECTIVE IN THE TREATMENT OF THE
ENROLLEE'S DISEASE OR CONDITION, OR THAT THE FORMULARY
ALTERNATIVE CAUSES OR IS REASONABLY EXPECTED BY THE PRESCRIBER
TO CAUSE A HARMFUL OR ADVERSE REACTION IN THE ENROLLEE.
(B) NOTHING IN THIS
SECTION SHALL BE CONSTRUED TO REQUIRE A HEALTH INSURING
CORPORATION TO PLACE ANY PARTICULAR PHARMACEUTICAL PRODUCT OR
THERAPEUTIC CLASS OF PRODUCT ON ANY FORMULARY, OR TO PROHIBIT A
HEALTH INSURING CORPORATION FROM RESTRICTING PAYMENTS FOR ANY
SPECIFIC PHARMACEUTICAL PRODUCT OR THERAPEUTIC CLASS OF PRODUCT,
INCLUDING, BUT NOT LIMITED TO, A REQUIREMENT THAT THE PRODUCT BE
PRESCRIBED ONLY BY A DEFINED SPECIALIST OR SUBSPECIALIST.
Sec. 1753.23. A HEALTH INSURING CORPORATION
THAT PROVIDES BASIC HEALTH CARE SERVICES SHALL ESTABLISH OR USE AN INTERNAL
TECHNOLOGY ASSESSMENT PROCESS FOR
ASSESSING WHETHER A DRUG, DEVICE, PROTOCOL, PROCEDURE, OR OTHER
THERAPY IS PROVEN TO BE SAFE AND EFFICACIOUS FOR A PARTICULAR
INDICATION OR CONDITION WHEN COMPARED TO ALTERNATIVE THERAPIES,
OR WHETHER IT REMAINS EXPERIMENTAL OR INVESTIGATIONAL. THE
HEALTH INSURING CORPORATION'S INTERNAL TECHNOLOGY ASSESSMENT
PROCESS SHALL MEET ALL OF THE FOLLOWING CRITERIA:
(A) DECISIONS ARE MADE
BY MEDICAL PROFESSIONALS, INCLUDING PHYSICIANS.
(B) THE PROCESS INCLUDES
A REVIEW OF RELEVANT MEDICAL EVIDENCE, INCLUDING THE FOLLOWING,
IF AVAILABLE:
(1) PEER-REVIEWED MEDICAL AND SCIENTIFIC LITERATURE ON
THE SUBJECT;
(2) PUBLISHED OPINIONS, ACTIONS, AND OTHER RELEVANT
DOCUMENTS OF INDEPENDENT, EXTERNAL RESEARCH ORGANIZATIONS SUCH
AS THE NATIONAL INSTITUTE OF HEALTH, THE NATIONAL CANCER
INSTITUTE, THE UNITED
STATES FOOD AND DRUG
ADMINISTRATION, THE HEALTH CARE FINANCE ADMINISTRATION, AND THE AGENCY FOR
HEALTH CARE POLICY AND
RESEARCH;
(3) PUBLISHED OPINIONS OF MEDICAL EXPERTS OR AFFECTED
SPECIALTY SOCIETIES.
(C) GENERAL COVERAGE
DECISIONS, MADE PURSUANT TO THIS PROCESS, THAT EXCLUDE DRUGS,
DEVICES, PROTOCOLS, PROCEDURES, OR OTHER THERAPIES ON THE BASIS
THAT THEY ARE NOT SAFE OR EFFICACIOUS AND REMAIN EXPERIMENTAL OR
INVESTIGATIONAL, ARE REVIEWED AND UPDATED AS NEW SCIENTIFIC
EVIDENCE BECOMES AVAILABLE.
(D) A DESCRIPTION OF THE
HEALTH INSURING CORPORATION'S INTERNAL TECHNOLOGY ASSESSMENT
PROCESS IS MADE AVAILABLE TO PARTICIPATING PROVIDERS AND
ENROLLEES, UPON REQUEST.
(E) A COPY OF THE
HEALTH INSURING CORPORATION'S SPECIFIC COVERAGE PROTOCOLS AND
PROCEDURES IS MADE AVAILABLE TO PARTICIPATING PROVIDERS AND
ENROLLEES UPON THE REQUEST OF AN ENROLLEE WHO HAS BEEN DENIED
COVERAGE FOR A DRUG, DEVICE, PROTOCOL, PROCEDURE, OR OTHER
THERAPY ON THE BASIS THAT IT HAS BEEN ASSESSED AS NOT BEING SAFE
OR EFFICACIOUS FOR A PARTICULAR INDICATION OR CONDITION.
SPECIFIC COVERAGE PROTOCOLS AND PROCEDURES SHALL
INCLUDE A DESCRIPTION OF THE EVIDENCE UPON WHICH THE PROTOCOL OR
PROCEDURE IS BASED, AND SHALL CONTAIN THE DATE THE PROTOCOL OR
PROCEDURE WAS ADOPTED.
(F) A DRUG OR DEVICE
THAT HAS RECEIVED FULL MARKET APPROVAL BY THE
UNITED
STATES FOOD AND DRUG
ADMINISTRATION FOR TREATMENT OF A PARTICULAR INDICATION OR
CONDITION CANNOT, FOR PURPOSES OF THIS ASSESSMENT PROCESS, BE
CONSIDERED EXPERIMENTAL OR INVESTIGATIONAL FOR THAT INDICATION
OR CONDITION.
Sec. 1753.24. (A) EACH HEALTH INSURING CORPORATION SHALL
ESTABLISH A
REASONABLE EXTERNAL, INDEPENDENT REVIEW PROCESS TO EXAMINE THE HEALTH INSURING
CORPORATION'S COVERAGE
DECISIONS FOR ENROLLEES WHO MEET ALL OF THE FOLLOWING CRITERIA:
(1) THE ENROLLEE HAS A TERMINAL CONDITION THAT, ACCORDING TO THE CURRENT
DIAGNOSIS OF THE ENROLLEE'S PHYSICIAN, HAS A HIGH PROBABILITY OF CAUSING
DEATH WITHIN TWO YEARS.
(2) THE ENROLLEE'S PHYSICIAN CERTIFIES THAT THE ENROLLEE HAS THE CONDITION
DESCRIBED IN DIVISION (A)(1) OF THIS SECTION
AND ANY OF THE FOLLOWING SITUATIONS ARE APPLICABLE:
(a) STANDARD THERAPIES HAVE NOT BEEN EFFECTIVE IN IMPROVING THE
CONDITION OF THE
ENROLLEE;
(b) STANDARD THERAPIES ARE NOT MEDICALLY APPROPRIATE
FOR THE ENROLLEE;
(c) THERE IS NO STANDARD THERAPY
COVERED BY THE HEALTH INSURING CORPORATION THAT IS MORE BENEFICIAL THAN
THERAPY DESCRIBED IN DIVISION (A)(3) OF
THIS SECTION.
(3) THE ENROLLEE'S PHYSICIAN HAS RECOMMENDED A DRUG, DEVICE, PROCEDURE, OR
OTHER THERAPY THAT THE PHYSICIAN CERTIFIES, IN WRITING,
IS LIKELY TO BE MORE BENEFICIAL TO THE ENROLLEE, IN THE PHYSICIAN'S OPINION,
THAN STANDARD
THERAPIES, OR, THE ENROLLEE HAS REQUESTED A THERAPY THAT HAS BEEN FOUND IN A
PREPONDERANCE OF PEER-REVIEWED PUBLISHED STUDIES TO BE ASSOCIATED WITH
EFFECTIVE CLINICAL OUTCOMES FOR THE SAME CONDITION.
(4) THE ENROLLEE HAS BEEN DENIED COVERAGE BY THE HEALTH INSURING
CORPORATION FOR A DRUG,
DEVICE,
PROCEDURE, OR OTHER THERAPY RECOMMENDED OR REQUESTED PURSUANT TO DIVISION
(A)(3) OF THIS SECTION, AND HAS EXHAUSTED ALL INTERNAL APPEALS.
(5) THE DRUG, DEVICE, PROCEDURE, OR OTHER THERAPY, RECOMMENDED OR
REQUESTED PURSUANT TO
DIVISION (A)(3) OF THIS SECTION, WOULD BE A COVERED HEALTH CARE
SERVICE EXCEPT
FOR THE HEALTH INSURING CORPORATION'S DETERMINATION THAT THE DRUG, DEVICE,
PROCEDURE, OR OTHER
THERAPY IS EXPERIMENTAL OR INVESTIGATIONAL.
(B) THE EXTERNAL, INDEPENDENT REVIEW PROCESS ESTABLISHED BY A
HEALTH INSURING CORPORATION SHALL MEET ALL OF THE FOLLOWING CRITERIA:
(1) EXCEPT AS PROVIDED IN DIVISION (C) OF THIS SECTION, THE
PROCESS SHALL OFFER ALL ENROLLEES WHO MEET THE CRITERIA SET FORTH
IN DIVISION (A) OF THIS SECTION THE OPPORTUNITY TO HAVE
THE HEALTH INSURING CORPORATION'S DECISION TO DENY
COVERAGE OF THE RECOMMENDED OR REQUESTED
THERAPY REVIEWED UNDER THE PROCESS. EACH ELIGIBLE ENROLLEE SHALL BE NOTIFIED
OF THAT OPPORTUNITY WITHIN FIVE BUSINESS DAYS AFTER THE
HEALTH INSURING CORPORATION DENIES COVERAGE.
(2) THE REVIEW OF THE HEALTH INSURING CORPORATION'S DECISION SHALL
BE CONDUCTED BY EXPERTS SELECTED BY AN INDEPENDENT ENTITY THAT
HAS BEEN RETAINED BY THE HEALTH INSURING CORPORATION FOR THIS
PURPOSE. THE INDEPENDENT ENTITY SHALL BE EITHER AN ACADEMIC
MEDICAL CENTER OR AN ENTITY THAT HAS AS ITS PRIMARY FUNCTION,
AND THAT RECEIVES A MAJORITY OF ITS REVENUE FROM, THE PROVISION
OF EXPERT REVIEWS AND RELATED SERVICES.
THE INDEPENDENT ENTITY SHALL SELECT A PANEL TO CONDUCT
THE REVIEW, WHICH PANEL SHALL BE COMPOSED
OF AT LEAST THREE PHYSICIANS OR OTHER
PROVIDERS WHO ARE EXPERTS IN THE TREATMENT OF THE ENROLLEE'S MEDICAL CONDITION
AND KNOWLEDGEABLE ABOUT THE RECOMMENDED OR REQUESTED THERAPY. IF THE
INDEPENDENT ENTITY
RETAINED BY THE HEALTH INSURING
CORPORATION IS AN ACADEMIC MEDICAL CENTER, THE PANEL MAY INCLUDE
EXPERTS AFFILIATED WITH OR EMPLOYED BY THE ACADEMIC MEDICAL
CENTER.
IN EITHER OF THE FOLLOWING CIRCUMSTANCES, AN EXCEPTION
MAY BE MADE TO THE REQUIREMENT THAT THE REVIEW BE CONDUCTED BY
AN EXPERT PANEL COMPOSED OF A MINIMUM OF THREE PHYSICIANS OR
OTHER PROVIDERS:
(a) A REVIEW MAY BE CONDUCTED BY
AN EXPERT PANEL COMPOSED OF ONLY TWO PHYSICIANS OR OTHER
PROVIDERS IF AN ENROLLEE HAS CONSENTED IN WRITING TO A REVIEW BY
THE SMALLER PANEL;
(b) A REVIEW MAY BE CONDUCTED BY A
SINGLE EXPERT PHYSICIAN OR OTHER PROVIDER IF ONLY ONE EXPERT
PHYSICIAN OR OTHER PROVIDER IS AVAILABLE FOR THE REVIEW.
(3) NEITHER THE HEALTH INSURING CORPORATION NOR THE ENROLLEE SHALL CHOOSE,
OR CONTROL THE CHOICE OF,
THE PHYSICIAN OR OTHER PROVIDER EXPERTS.
(4) NEITHER THE EXPERTS NOR THE INDEPENDENT ENTITY ARRANGING FOR THE
EXPERTS' REVIEW SHALL HAVE ANY PROFESSIONAL, FAMILIAL, OR FINANCIAL
AFFILIATION
WITH THE HEALTH INSURING CORPORATION, EXCEPT THAT EXPERTS AFFILIATED WITH
ACADEMIC MEDICAL CENTERS
WHO PROVIDE HEALTHCARE SERVICES TO ENROLLEES OF THE HEALTH INSURING
CORPORATION MAY SERVE AS EXPERTS ON THE REVIEW
PANEL. THIS NONAFFILIATION PROVISION DOES NOT
PRECLUDE A HEALTH INSURING CORPORATION FROM PAYING FOR THE EXPERTS' REVIEW, AS
SPECIFIED IN
DIVISION (B)(5) OF THIS SECTION. THE EXPERTS SHALL HAVE NO
PATIENT-PHYSICIAN RELATIONSHIP OR OTHER AFFILIATION WITH AN ENROLLEE WHOSE
REQUEST FOR THERAPY IS UNDER REVIEW OR WITH A PROVIDER WHOSE RECOMMENDATION
FOR THERAPY IS UNDER REVIEW.
(5) ENROLLEES SHALL NOT BE REQUIRED TO PAY FOR THE EXTERNAL, INDEPENDENT
REVIEW. THE COSTS OF THE REVIEW SHALL BE BORNE BY THE HEALTH INSURING
CORPORATION.
(6) THE HEALTH INSURING CORPORATION SHALL PROVIDE TO THE INDEPENDENT
ENTITY ARRANGING FOR THE EXPERTS'
REVIEW AND TO THE ENROLLEE AND THE ENROLLEE'S PHYSICIAN A COPY OF THOSE
MEDICAL RECORDS IN THE HEALTH INSURING CORPORATION'S POSSESSION THAT ARE
RELEVANT TO THE ENROLLEE'S
CONDITION FOR WHICH
THERAPY HAS BEEN RECOMMENDED OR REQUESTED. THE MEDICAL RECORDS SHALL BE
DISCLOSED SOLELY
TO THE EXPERT REVIEWERS AND SHALL BE USED SOLELY FOR THE PURPOSE OF THIS
SECTION.
(7) THE OPINIONS OF THE EXPERTS ON THE PANEL SHALL BE RENDERED WITHIN
THIRTY
DAYS AFTER THE ENROLLEE'S REQUEST FOR REVIEW. IF THE ENROLLEE'S PHYSICIAN
DETERMINES
THAT A THERAPY WOULD BE SIGNIFICANTLY LESS EFFECTIVE IF NOT
PROMPTLY INITIATED, THE OPINIONS SHALL BE RENDERED WITHIN SEVEN DAYS AFTER THE
ENROLLEE'S REQUEST FOR REVIEW.
(8) EACH EXPERT ON THE PANEL SHALL PROVIDE THE INDEPENDENT ENTITY WITH A
PROFESSIONAL OPINION AS TO WHETHER THERE IS SUFFICIENT EVIDENCE TO DEMONSTRATE
THAT THE RECOMMENDED OR REQUESTED THERAPY IS LIKELY TO BE MORE BENEFICIAL TO
THE ENROLLEE THAN
STANDARD THERAPIES.
(9) EACH EXPERT'S OPINION SHALL BE PRESENTED IN WRITTEN FORM AND SHALL
INCLUDE THE
FOLLOWING INFORMATION:
(a) A DESCRIPTION OF THE ENROLLEE'S CONDITION;
(b) A DESCRIPTION OF THE INDICATORS RELEVANT TO DETERMINING
WHETHER THERE IS SUFFICIENT EVIDENCE TO DEMONSTRATE THAT THE RECOMMENDED OR
REQUESTED THERAPY
IS MORE LIKELY THAN NOT TO BE MORE BENEFICIAL TO THE ENROLLEE THAN STANDARD
THERAPIES;
(c) A DESCRIPTION AND ANALYSIS OF ANY RELEVANT FINDINGS PUBLISHED
IN PEER-REVIEWED MEDICAL OR SCIENTIFIC LITERATURE OR THE PUBLISHED OPINIONS OF
MEDICAL EXPERTS OR SPECIALTY SOCIETIES;
(d) A DESCRIPTION OF THE ENROLLEE'S SUITABILITY TO RECEIVE THE
RECOMMENDED OR REQUESTED THERAPY ACCORDING TO A TREATMENT PROTOCOL IN A
CLINICAL TRIAL, IF
APPLICABLE.
(10) THE INDEPENDENT ENTITY SHALL PROVIDE THE HEALTH INSURING CORPORATION
WITH THE OPINIONS OF THE
EXPERTS. THE HEALTH INSURING CORPORATION SHALL MAKE THE EXPERTS' OPINIONS
AVAILABLE TO THE ENROLLEE
AND THE ENROLLEE'S PHYSICIAN, UPON REQUEST.
(11) THE DECISION OF THE MAJORITY OF THE EXPERTS ON THE PANEL, RENDERED
PURSUANT TO DIVISION (B)(8) OF THIS SECTION, IS BINDING ON THE HEALTH
INSURING CORPORATION WITH RESPECT TO THAT ENROLLEE.
IF THE OPINIONS OF THE EXPERTS ON THE PANEL ARE EVENLY DIVIDED AS TO WHETHER
THE THERAPY SHOULD BE COVERED, THEN THE HEALTH INSURING CORPORATION'S FINAL
DECISION SHALL BE IN
FAVOR OF
COVERAGE. IF LESS THAN A MAJORITY OF THE EXPERTS ON THE PANEL RECOMMEND
COVERAGE OF THE THERAPY, THE HEALTH INSURING CORPORATION MAY, IN ITS
DISCRETION, COVER THE THERAPY.
HOWEVER, ANY COVERAGE PROVIDED PURSUANT TO DIVISION (B)(11) OF THIS
SECTION IS SUBJECT TO THE TERMS AND CONDITIONS OF THE ENROLLEE'S CONTRACT WITH
THE HEALTH INSURING CORPORATION.
(12) THE HEALTH INSURING CORPORATION SHALL HAVE WRITTEN POLICIES
DESCRIBING THE EXTERNAL, INDEPENDENT
REVIEW PROCESS. THE HEALTH INSURING CORPORATION SHALL DISCLOSE THE
AVAILABILITY OF THE EXTERNAL,
INDEPENDENT REVIEW PROCESS IN THE HEALTH INSURING CORPORATION'S EVIDENCE OF
COVERAGE AND DISCLOSURE
FORMS.
(C) IF A HEALTH INSURING CORPORATION'S INITIAL DENIAL OF COVERAGE
FOR A THERAPY RECOMMENDED OR REQUESTED PURSUANT TO DIVISION
(A)(3) OF THIS SECTION IS BASED UPON AN EXTERNAL,
INDEPENDENT REVIEW OF THAT THERAPY MEETING THE REQUIREMENTS OF
DIVISION (B) OF THIS SECTION, THIS SECTION SHALL NOT BE A
BASIS FOR REQUIRING A SECOND EXTERNAL, INDEPENDENT REVIEW OF THE
RECOMMENDED OR REQUESTED THERAPY.
(D) THE HEALTH INSURING CORPORATION SHALL ANNUALLY FILE A
CERTIFICATE WITH THE SUPERINTENDENT OF INSURANCE CERTIFYING ITS
COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION.
Sec. 1753.28. (A) AS USED IN THIS SECTION:
(1) "EMERGENCY MEDICAL CONDITION" MEANS A MEDICAL
CONDITION THAT MANIFESTS ITSELF BY SUCH ACUTE SYMPTOMS OF
SUFFICIENT SEVERITY, INCLUDING SEVERE PAIN, THAT A PRUDENT
LAYPERSON WITH AN AVERAGE KNOWLEDGE OF HEALTH AND MEDICINE COULD
REASONABLY EXPECT THE ABSENCE OF IMMEDIATE MEDICAL ATTENTION TO
RESULT IN ANY OF THE FOLLOWING:
(a) PLACING THE HEALTH OF THE INDIVIDUAL OR,
WITH RESPECT TO A PREGNANT WOMAN, THE HEALTH OF THE WOMAN OR HER
UNBORN CHILD, IN SERIOUS JEOPARDY;
(b) SERIOUS IMPAIRMENT TO BODILY
FUNCTIONS;
(c) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN OR
PART.
(2) "EMERGENCY SERVICES" MEANS THE FOLLOWING:
(a) A MEDICAL SCREENING EXAMINATION, AS
REQUIRED BY FEDERAL LAW, THAT IS WITHIN THE CAPABILITY OF THE
EMERGENCY DEPARTMENT OF A HOSPITAL, INCLUDING ANCILLARY SERVICES
ROUTINELY AVAILABLE TO THE EMERGENCY DEPARTMENT, TO EVALUATE AN
EMERGENCY MEDICAL CONDITION;
(b) SUCH FURTHER MEDICAL EXAMINATION
AND TREATMENT THAT ARE REQUIRED BY FEDERAL LAW TO STABILIZE AN
EMERGENCY MEDICAL CONDITION AND ARE WITHIN THE CAPABILITIES OF THE STAFF AND
FACILITIES AVAILABLE AT THE HOSPITAL, INCLUDING ANY TRAUMA AND BURN CENTER OF
THE HOSPITAL.
(3)(a) "STABILIZE" MEANS THE PROVISION OF SUCH
MEDICAL TREATMENT AS MAY BE NECESSARY TO ASSURE, WITHIN
REASONABLE MEDICAL PROBABILITY, THAT NO MATERIAL DETERIORATION
OF AN INDIVIDUAL'S MEDICAL CONDITION IS LIKELY TO RESULT FROM OR
OCCUR DURING A TRANSFER, IF THE MEDICAL
CONDITION COULD RESULT IN ANY OF THE FOLLOWING:
(i) PLACING THE HEALTH OF THE INDIVIDUAL OR,
WITH RESPECT TO A PREGNANT WOMAN, THE HEALTH OF THE WOMAN OR HER
UNBORN CHILD, IN SERIOUS JEOPARDY;
(ii) SERIOUS IMPAIRMENT TO BODILY
FUNCTIONS;
(iii) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN
OR PART.
(b) IN THE CASE OF A WOMAN HAVING CONTRACTIONS,
"STABILIZE" MEANS SUCH MEDICAL TREATMENT AS MAY BE NECESSARY TO
DELIVER, INCLUDING THE PLACENTA.
(4) "TRANSFER" HAS THE SAME MEANING AS IN SECTION 1867 OF THE
"SOCIAL SECURITY ACT," 49 STAT. 620
(1935), 42 U.S.C.A. 1395dd, AS AMENDED.
(B) A HEALTH INSURING CORPORATION POLICY, CONTRACT, OR AGREEMENT
PROVIDING COVERAGE OF BASIC HEALTH CARE SERVICES
SHALL COVER EMERGENCY
SERVICES FOR ENROLLEES WITH EMERGENCY MEDICAL CONDITIONS WITHOUT
REGARD TO THE DAY OR TIME THE EMERGENCY SERVICES ARE RENDERED OR TO
WHETHER THE ENROLLEE, THE HOSPITAL'S EMERGENCY DEPARTMENT WHERE THE SERVICES
ARE RENDERED, OR AN EMERGENCY PHYSICIAN TREATING THE
ENROLLEE, OBTAINED PRIOR AUTHORIZATION FOR THE EMERGENCY SERVICES.
(C) A HEALTH INSURING CORPORATION POLICY, CONTRACT, OR AGREEMENT
PROVIDING COVERAGE OF BASIC HEALTH CARE SERVICES
SHALL COVER BOTH OF THE FOLLOWING:
(1) EMERGENCY SERVICES PROVIDED TO AN ENROLLEE AT A
PARTICIPATING HOSPITAL'S EMERGENCY DEPARTMENT IF THE ENROLLEE PRESENTS
SELF WITH AN EMERGENCY MEDICAL CONDITION;
(2) EMERGENCY SERVICES PROVIDED TO AN ENROLLEE AT A
NONPARTICIPATING HOSPITAL'S EMERGENCY DEPARTMENT
IF THE ENROLLEE PRESENTS SELF WITH
AN EMERGENCY MEDICAL CONDITION AND ONE OF THE FOLLOWING
CIRCUMSTANCES APPLIES:
(a) DUE TO CIRCUMSTANCES BEYOND THE ENROLLEE'S
CONTROL, THE ENROLLEE WAS UNABLE TO UTILIZE A PARTICIPATING HOSPITAL'S
EMERGENCY DEPARTMENT WITHOUT SERIOUS THREAT TO LIFE OR
HEALTH.
(b) A PRUDENT LAYPERSON WITH AN AVERAGE
KNOWLEDGE OF HEALTH AND MEDICINE WOULD HAVE REASONABLY BELIEVED
THAT, UNDER THE CIRCUMSTANCES, THE TIME REQUIRED TO TRAVEL TO A
PARTICIPATING HOSPITAL'S EMERGENCY DEPARTMENT COULD RESULT IN ONE OR MORE
OF THE ADVERSE HEALTH CONSEQUENCES DESCRIBED IN DIVISION
(A)(1) OF THIS SECTION.
(c) A PERSON AUTHORIZED BY THE HEALTH INSURING CORPORATION
REFERS THE ENROLLEE TO AN EMERGENCY DEPARTMENT AND DOES NOT
SPECIFY A PARTICIPATING HOSPITAL'S EMERGENCY DEPARTMENT.
(d) AN AMBULANCE TAKES THE ENROLLEE TO A NONPARTICIPATING
HOSPITAL OTHER THAN AT THE DIRECTION OF THE ENROLLEE.
(e) THE ENROLLEE IS UNCONSCIOUS.
(f) A NATURAL DISASTER PRECLUDED THE USE OF A PARTICIPATING
EMERGENCY DEPARTMENT.
(g) THE STATUS OF A HOSPITAL CHANGED FROM PARTICIPATING TO
NONPARTICIPATING WITH RESPECT TO EMERGENCY SERVICES DURING A CONTRACT YEAR AND
NO GOOD FAITH EFFORT WAS MADE BY THE HEALTH INSURING CORPORATION TO INFORM
ENROLLEES OF THIS CHANGE.
(D) A HEALTH INSURING CORPORATION
THAT PROVIDES COVERAGE FOR EMERGENCY SERVICES SHALL
INFORM ENROLLEES OF ALL OF THE FOLLOWING:
(1) THE SCOPE OF COVERAGE FOR EMERGENCY SERVICES;
(2) THE APPROPRIATE USE OF EMERGENCY SERVICES,
INCLUDING THE USE OF THE 9-1-1 SYSTEM AND ANY OTHER TELEPHONE
ACCESS SYSTEMS UTILIZED TO ACCESS PREHOSPITAL EMERGENCY
SERVICES;
(3) ANY COST SHARING PROVISIONS FOR EMERGENCY SERVICES;
(4) THE PROCEDURES FOR OBTAINING EMERGENCY SERVICES AND OTHER
MEDICAL SERVICES, SO THAT ENROLLEES ARE FAMILIAR WITH THE
LOCATION OF THE EMERGENCY DEPARTMENTS OF PARTICIPATING HOSPITALS AND WITH THE
LOCATION AND AVAILABILITY OF OTHER PARTICIPATING FACILITIES OR
SETTINGS AT WHICH THEY COULD RECEIVE MEDICAL SERVICES.
Sec. 1753.30. NOTHING IN THIS CHAPTER SHALL PREVENT OR
OTHERWISE AFFECT THE APPLICATION TO ANY HEALTH CARE PLAN OF THOSE PROVISIONS
OF TITLE XVII OR XXXIX OF THE REVISED
CODE THAT WOULD OTHERWISE APPLY.
Sec. 3901.04. (A) As used in this section:
(1) "Laws of this state relating to insurance" include but
are not limited to Chapter
1751. notwithstanding section 1751.08, CHAPTER 1753.,
Title XXXIX, sections 5725.18 to 5725.25, and
Chapter 5729. of the Revised Code.
(2) "Person" has the meaning defined in division (A) of
section 3901.19 of the Revised Code.
(B) Whenever it appears to the superintendent of
insurance, from the superintendent's files, upon complaint
or otherwise, that any person has engaged in, is engaged in, or is about to
engage in any act or practice declared to be illegal or prohibited by the
laws of this state relating to insurance, or defined as unfair or
deceptive by such laws, or when the superintendent believes it to
be in the best interest of the public and necessary for the
protection of the people in this state, the superintendent or
anyone designated by the superintendent under the
superintendent's official seal may do any one or more of the following:
(1) Require any person to file with the superintendent, on
a form that is appropriate for review by the superintendent, an
original or additional statement or report in writing, under oath
or otherwise, as to any facts or circumstances concerning the
person's conduct of the business of insurance within this state
and as to any other information that the superintendent considers
to be material or relevant to such business;
(2) Administer oaths, summon and compel by order or
subpoena the attendance of witnesses to testify in relation to
any matter which, by the laws of this state relating to
insurance, is the subject of inquiry and investigation, and
require the production of any book, paper, or document pertaining
to such matter. A subpoena, notice, or order under this section
may be served by certified mail, return receipt requested. If
the subpoena, notice, or order is returned because of inability
to deliver, or if no return is received within thirty days of the
date of mailing, the subpoena, notice, or order may be served by
ordinary mail. If no return of ordinary mail is received within
thirty days after the date of mailing, service shall be deemed to
have been made. If the subpoena, notice, or order is returned
because of inability to deliver, the superintendent may designate
a person or persons to effect either personal or residence
service upon the witness. Service of any subpoena, notice, or
order and return may also be made in any manner authorized under
the Rules of Civil Procedure. Such service shall be made by an
employee of the department designated by the superintendent, a
sheriff, a deputy sheriff, an attorney, or any person authorized
by the Rules of Civil Procedure to serve process.
In the case of disobedience of any notice, order, or
subpoena served on a person or the refusal of a witness to
testify to a matter regarding which the person may lawfully
be interrogated, the court of common pleas of the county where venue
is appropriate, on application by the superintendent, may compel
obedience by attachment proceedings for contempt, as in the case
of disobedience of the requirements of a subpoena issued from
such court, or a refusal to testify therein. Witnesses shall
receive the fees and mileage allowed by section 2335.06 of the
Revised Code. All such fees, upon the presentation of proper
vouchers approved by the superintendent, shall be paid out of the
appropriation for the contingent fund of the department of
insurance. The fees and mileage of witnesses not summoned by the
superintendent or the superintendent's designee shall not be
paid by the state.
(3) In a case in which there is no administrative
procedure available to the superintendent to resolve a matter at
issue, request the attorney general to commence an action for a
declaratory judgment under Chapter 2721. of the Revised Code with
respect to the matter.
(4) Initiate criminal proceedings by presenting evidence
of the commission of any criminal offense established under the
laws of this state relating to insurance to the prosecuting
attorney of any county in which the offense may be prosecuted.
At the request of the prosecuting attorney, the attorney general
may assist in the prosecution of the violation with all the
rights, privileges, and powers conferred by law on prosecuting
attorneys including, but not limited to, the power to appear
before grand juries and to interrogate witnesses before grand
juries.
Sec. 3901.041. The superintendent of insurance shall adopt, amend, and
rescind rules and make adjudications, necessary to discharge the
superintendent's duties and exercise the
superintendent's powers, including, but not limited to, the
superintendent's duties and powers under Chapter
CHAPTERS 1751. AND 1753. and Title XXXIX of
the Revised Code, subject to Chapter 119. of the Revised Code.
Sec. 3901.16. Any association, company, or corporation, including a
health insuring corporation, which violates any law
relating to the superintendent of insurance, any provision of
Chapter 1751. OR 1753. of the Revised Code, or any insurance
law of this state,
for the violation of which no forfeiture or penalty is elsewhere provided in
the Revised Code, shall forfeit and pay not less than one thousand
nor more than ten thousand dollars, to be recovered by an action in the name
of the state and on collection to be paid to the superintendent, who shall pay
such sum into the state treasury.
Sec. 3924.10. (A) The board of directors of the Ohio health reinsurance
program shall design the SEHC
plan which, when offered by a carrier, is eligible for
reinsurance under the program. The board shall establish the
form and level of coverage to be made available by carriers in
their SEHC plan. In designing the plan the board shall
also establish benefit levels, deductibles, coinsurance factors,
exclusions, and limitations for the plan. The forms and levels
of coverage established by the board shall specify which
components of a health benefit plan offered by a
carrier may be reinsured. The SEHC plan is subject
to division (C) of section 3924.02 of the Revised Code and
to the provisions in Chapters 1751., 1753., 3923., and any
other
chapter of the Revised Code that require coverage or the
offer of coverage of a health care service or benefit.
(B) The board shall adopt the SEHC plan within one
hundred eighty days after its appointment. The plan may include
cost containment features including any of the following:
(1) Utilization review of health care services, including
review of the medical necessity of hospital and physician
services;
(2) Case management benefit alternatives;
(3) Selective contracting with hospitals, physicians, and
other health care providers;
(4) Reasonable benefit differentials applicable to
participating and nonparticipating providers;
(5) Employee assistance program options that provide
preventive and early intervention mental health and substance
abuse services;
(6) Other provisions for the cost-effective management of
the plan.
(C) An SEHC plan established for use by health
insuring corporations shall be
consistent with the basic
method of operation of such corporations.
(D) Each carrier shall certify to the superintendent of
insurance, in the form and manner prescribed by the
superintendent, that the SEHC plan filed by the carrier
is in substantial compliance with the provisions of the board
SEHC plan. Upon receipt by the superintendent of the
certification, the carrier may use the certified plan.
(E) Each carrier shall, on and after sixty days after the
date that the program becomes operational and as a condition of
transacting business in this state, renew coverage provided to
any individual or group under its SEHC plan.
Sec. 4121.121. (A) There is hereby created the bureau of
workers' compensation, which shall be administered by the administrator of
workers' compensation. A person appointed to the position of administrator
shall possess significant management experience in effectively managing an
organization or organizations of substantial size and complexity. The
governor shall appoint the administrator as provided in section 121.03 of the
Revised Code, and the administrator shall
serve at the pleasure of the governor. The governor shall fix the
administrator's salary
on the basis of the administrator's experience and the administrator's
responsibilities and duties under this
chapter and Chapter 4123., 4127., and 4131. of
the Revised Code. The governor shall not appoint to the position of
administator ADMINISTRATOR any person who has, or whose spouse
has, given a contribution to the campaign committee of the governor in
an amount greater than one thousand dollars during the two-year period
immediately preceding the date of the appointment of the administrator.
After August 31, 2000, the workers' compensation
oversight commission shall appoint the administrator as provided in division
(F)(9) of section 4121.12 of the Revised Code, and the administrator shall
serve at the pleasure of the
oversight commission. The oversight commission
shall fix the administrator's salary on the basis of the administrator's
experience and the administrator's responsibilities and duties under this
chapter and Chapters 4123.,
4127., and 4131. of the Revised Code.
The administrator shall hold no other public office and shall devote
full time to the duties of administrator.
Before entering upon the duties of the office, the
administrator shall take an oath of office as required by
sections 3.22 and 3.23 of the Revised Code, and shall file in the office of
the secretary of state, a bond signed by the administrator and by surety
approved by the governor, for the sum of fifty thousand dollars payable to the
state, conditioned upon the faithful performance of the administrator's
duties.
(B) The administrator
is responsible for the management of the bureau of workers'
compensation and for the discharge of all administrative duties
imposed upon the administrator in this chapter and Chapters
4123., 4127., and 4131. of the Revised Code, and in the discharge thereof
shall do all of the following:
(1) Establish the overall administrative policy
of the bureau for the purposes of this chapter and Chapters 4123.,
4127., and 4131. of the Revised Code, and perform all acts and exercise all
authorities
and powers, discretionary and otherwise that are required
of or vested in the bureau or any of its employees in this chapter and
Chapters 4123., 4127., and 4131. of the Revised Code, except the acts and the
exercise of authority and power that is required of and
vested in the oversight commission or the industrial commission pursuant to
those chapters. The treasurer
of state shall honor all warrants signed by the administrator, or
by one or more of the administrator's employees, authorized
by the administrator
in writing, or bearing the facsimile signature of the
administrator or such employee under sections 4123.42 and 4123.44
of the Revised Code.
(2) Employ, direct, and supervise all employees required
in connection with the performance of the duties assigned to the
bureau by this chapter and Chapters 4123., 4127., and 4131. of
the Revised Code, and may establish job classification plans and
compensation for all employees of the bureau provided that this
grant of authority shall not be construed as affecting any
employee for whom the state employment relations board has
established an appropriate bargaining unit under section 4117.06
of the Revised Code. All positions of employment in the bureau
are in the classified civil service except those employees the
administrator may appoint to serve at the administrator's
pleasure in the unclassified civil service pursuant to section
124.11 of the Revised Code. The administrator shall fix the salaries of
employees the administrator appoints to serve at
the administrator's pleasure, including the chief operating
officer, staff physicians, and other senior management personnel of the
bureau and shall establish the compensation of staff attorneys of the
bureau's legal section and their immediate supervisors, and take whatever
steps are necessary to provide adequate compensation for other staff
attorneys.
The administrator may appoint a person holding a certified
position in the classified service to any state position in the
unclassified service of the bureau of workers' compensation. A
person so appointed shall retain the right to resume the
position and status held by the person in the classified service
immediately prior to the person's appointment in the
unclassified service. If the position the person previously
held has been filled or placed in the unclassified service, or
is otherwise unavailable, the person shall be appointed to a
position in the classified service within the bureau that the
department of administrative services certifies is comparable in compensation
to the position the person previously held. Reinstatement to a
position in the classified service shall be to a position
substantially equal to that held previously, as certified by the
department of administrative services. Service in the position in the
unclassified
service shall be counted as service in the position in the
classified service held by the person immediately prior to the
person's appointment in the unclassified service. when a person
is reinstated to a position in the classified
service as provided in this section, the person is entitled to
all rights, status, and benefits accruing to the position during
the person's time of service in the position in the unclassified
service.
(3) Reorganize the work of the bureau, its sections,
departments, and offices to the extent necessary to achieve the
most efficient performance of its functions and to that end may
establish, change, or abolish positions and assign and reassign
duties and responsibilities of every employee of the bureau. All
persons employed by the commission in positions that, after
November 3, 1989, are supervised and directed by the
administrator under this section are transferred to the bureau in
their respective classifications but subject to reassignment and
reclassification of position and compensation as the
administrator determines to be in the interest of efficient
administration. The civil service status of any person employed
by the commission is not affected by this section. Personnel
employed by the bureau or the commission who are subject to
Chapter 4117. of the Revised Code shall retain all of their
rights and benefits conferred pursuant to that chapter as it
presently exists or is hereafter amended and nothing in this
chapter or Chapter 4123. of the Revised Code shall be construed
as eliminating or interfering with Chapter 4117. of the Revised
Code or the rights and benefits conferred under that chapter to
public employees or to any bargaining unit.
(4) Provide offices, equipment, supplies, and other
facilities for the bureau. The administrator also
shall provide suitable office space in the service offices for
the district hearing officers, the staff hearing officers, and
commission employees as requested by the commission.
(5) Prepare and submit to the oversight commission information the
administrator considers pertinent or the oversight commission
requires, together
with the administrator's recommendations, in the form of
administrative rules, for the advice and consent of
the oversight commission, for
classifications of occupations or industries, for premium rates
and contributions, for the amount to be credited to the surplus
fund, for rules and systems of rating, rate revisions, and merit
rating. The administrator shall obtain, prepare, and submit any
other information the oversight commission requires for
the prompt and efficient discharge of its duties.
(6) Keep the accounts required by division (A) of section
4123.34 of the Revised Code and all other accounts and records
necessary to the collection, administration, and distribution of
the workers' compensation funds and shall obtain the statistical
and other information required by section 4123.19 of the Revised
Code.
(7) Exercise the investment powers vested in the
administrator by section 4123.44 of the Revised Code in
accordance with the investment objectives, policies, and
criteria established by the oversight commission
pursuant to section 4121.12 of the Revised Code. The administrator shall not
engage in any
prohibited investment activity specified by the oversight commission pursuant
to division (F)(6) of section 4121.12 of the Revised Code. All business
shall be transacted, all funds invested, all warrants for money drawn and
payments made, and all cash and securities and other property held, in the
name of the bureau, or in the name of its nominee, provided that nominees are
authorized by the administrator solely for
the purpose of facilitating the transfer of securities, and restricted to
the administrator and designated
employees.
(8) Make contracts
for and supervise the construction of any project or improvement
or the construction or repair of buildings under the control of
the bureau.
(9) Purchase supplies, materials, equipment, and services; make contracts
for, operate, and superintend the telephone, other telecommunication,
and computer services for the use of the bureau; and make
contracts in connection with office reproduction, forms
management, printing, and other services. NOTWITHSTANDING SECTIONS 125.12
TO 125.14 of the Revised Code, THE ADMINISTRATOR MAY TRANSFER SURPLUS COMPUTERS AND COMPUTER
EQUIPMENT DIRECTLY TO AN ACCREDITED PUBLIC SCHOOL WITHIN THE STATE. THE
COMPUTERS AND COMPUTER EQUIPMENT MAY BE REPAIRED OR REFURBISHED PRIOR TO THE
TRANSFER.
(10) Separately from the budget the industrial
commission submits,
prepare and submit to the director of budget and management a
budget for each biennium. The budget submitted shall include
estimates of the costs and necessary expenditures of the bureau
in the discharge of any duty imposed by law as well as
the costs of furnishing office space to the district hearing
officers, staff hearing officers, and commission employees under
division (D) of this section.
(11) As promptly as possible in the course of efficient
administration, decentralize and relocate such of the personnel
and activities of the bureau as is appropriate to the end that
the receipt, investigation, determination, and payment of claims
may be undertaken at or near the place of injury or the residence
of the claimant and for that purpose establish regional offices,
in such places as the administrator considers proper, capable
of discharging as
many of the functions of the bureau as is practicable so as to
promote prompt and efficient administration in the processing of
claims. All active and inactive lost-time claims files shall be
held at the service office responsible for the claim. A
claimant, at the claimant's request, shall be provided with
information by
telephone as to the location of the file pertaining to claim. The
administrator shall ensure that all service office employees
report directly to the director for their service office.
(12) Provide a written binder on new coverage where the
administrator considers it to be in the best interest of the risk. The
administrator, or any other person authorized by the
administrator, shall grant
the binder upon submission of a request for coverage by the
employer. A binder is effective for a period of thirty days from
date of issuance and is nonrenewable. Payroll reports and
premium charges shall coincide with the effective date of the
binder.
(13) Set standards for the reasonable and maximum handling
time of claims payment functions, ensure, by rules, the impartial
and prompt treatment of all claims and employer risk accounts,
and establish a secure, accurate method of time stamping all
incoming mail and documents hand delivered to bureau employees.
(14) Ensure that all employees of the bureau follow the
orders and rules of the commission as such orders and rules
relate to the commission's overall adjudicatory policy-making and
management duties under this chapter and Chapters 4123., 4127.,
and 4131. of the Revised Code.
(15) Manage and operate a data processing system with a
common data base for the use of both the bureau and the
commission and, in consultation with the commission, using
electronic data processing equipment, shall develop a claims
tracking system that is sufficient to monitor the status of a
claim at any time and that lists appeals that have been filed and
orders or determinations that have been issued pursuant to
section 4123.511 or 4123.512 of the Revised Code, including the
dates of such filings and issuances.
(16) Establish and maintain a medical section within the
bureau. The medical section shall do all of the following:
(a) Assist the administrator in establishing standard
medical fees, approving medical procedures, and determining
eligibility and reasonableness of the compensation payments for
medical, hospital, and nursing services, and in establishing
guidelines for payment policies which recognize usual, customary,
and reasonable methods of payment for covered services;
(b) Provide a resource to respond to questions from claims
examiners for employees of the bureau;
(c) Audit fee bill payments;
(d) Implement a program to utilize, to the maximum extent
possible, electronic data processing equipment for storage of
information to facilitate authorizations of compensation payments
for medical, hospital, drug, and nursing services;
(e) Perform other duties assigned to it by the
administrator.
(17) Appoint, as the administrator determines necessary,
panels to review
and advise the administrator on disputes arising over a
determination that a health care service or supply provided to a
claimant is not covered under this chapter or Chapter 4123. of
the Revised Code or is medically unnecessary. If an individual
health care provider is involved in the dispute, the panel shall
consist of individuals licensed pursuant to the same section of
the Revised Code as such health care provider.
(18) Pursuant to section 4123.65 of the Revised Code,
approve applications for the final settlement of claims for
compensation or benefits under this chapter and Chapters 4123.,
4127., and 4131. of the Revised Code as the administrator
determines appropriate, except in regard to the
applications of
self-insuring employers and their employees.
(19) Comply with section 3517.13 of the Revised Code, and
except in regard to contracts entered into pursuant to
the authority contained in section 4121.44 of the Revised Code,
comply with the competitive bidding
procedures set forth in the Revised Code for all contracts into
which the administrator enters provided that those contracts
fall within the type of contracts and dollar amounts specified in the Revised
Code for competitive bidding and further provided that those contracts are not
otherwise specifically exempt from the competitive bidding procedures
contained in the Revised Code.
(20) Adopt, with the advice and consent of the oversight
commission, rules for the operation of the bureau.
(21) Prepare and submit to the oversight commission information the
administrator considers pertinent or the oversight commission requires,
together with the administrator's recommendations, in the form of
administrative rules, for the advice and consent of the oversight commission,
for the health partnership program and the qualified health plan system, as
provided in sections 4121.44, 4121.441, and 4121.442 of the Revised Code.
(C) The administrator, with the advice and consent of the senate,
shall appoint a chief operating officer who
has significant experience in the field of workers'
compensation insurance or other similar insurance industry experience if the
administrator does not possess such experience. The chief operating officer
shall not commence the chief operating officer's duties
until after the senate consents to the chief
operating officer's appointment. The chief operating officer
shall serve in the unclassified civil service of the state.
Sec. 4123.01. As used in this chapter:
(A)(1) "Employee" means:
(a) Every person in the service of the state, or of any
county, municipal corporation, township, or school district
therein, including regular members of lawfully constituted police
and fire departments of municipal corporations and townships,
whether paid or volunteer, and wherever serving within the state
or on temporary assignment outside thereof, and executive
officers of boards of education, under any appointment or
contract of hire, express or implied, oral or written, including
any elected official of the state, or of any county, municipal
corporation, or township, or members of boards of education;
(b) Every person in the service of any person, firm, or
private corporation, including any public service corporation,
that (i) employs one or more persons regularly in the same
business or in or about the same establishment under any contract
of hire, express or implied, oral or written, including aliens
and minors, household workers who earn one hundred sixty dollars
or more in cash in any calendar quarter from a single household
and casual workers who earn one hundred sixty dollars or more in
cash in any calendar quarter from a single employer, or (ii) is
bound by any such contract of hire or by any other written
contract, to pay into the state insurance fund the premiums
provided by this chapter.
(c) Every person who performs labor or provides
services pursuant to a construction contract, as defined in
section 4123.79 of the Revised Code, if at least ten of the following criteria apply:
(i) The person is required to comply with
instructions from the other contracting party regarding the
manner or method of performing services;
(ii) The person is required by the other
contracting party to have particular training;
(iii) The person's services are
integrated into the regular functioning of the other contracting
party;
(iv) The person is required to perform the work personally;
(v) The person is hired, supervised, or paid by the other contracting party;
(vi) A continuing relationship exists
between the person and the other contracting party that
contemplates continuing or recurring work even if the work is
not full time;
(vii) The person's hours of work are
established by the other contracting party;
(viii) The person is required to devote full time
to the business of the other contracting party;
(ix) The person is required to perform the work on
the premises of the other contracting party;
(x) The person is required to follow
the order of work set by the other contracting party;
(xi) The person is required to make
oral or written reports of progress to the other contracting
party;
(xii) The person is paid for services
on a regular basis such as hourly, weekly, or monthly;
(xiii) The person's expenses are paid for by the other contracting party;
(xiv) The person's tools and
materials are furnished by the other contracting party;
(xv) The person is provided with the facilities used to perform services;
(xvi) The person does not realize a profit or
suffer a loss as a result of the services provided;
(xvii) The person is not performing
services for a number of employers at the same time;
(xviii) The person does not make the same services available to
the general public;
(xix) The other contracting party has
a right to discharge the person;
(xx) The person has the right to end
the relationship with the other contracting party without
incurring liability pursuant to an employment contract or
agreement.
Every person in the service of any independent contractor
or subcontractor who has failed to pay into the state insurance
fund the amount of premium determined and fixed by the
administrator of workers' compensation for the person's employment or
occupation or if a self-insuring employer has failed to pay
compensation and benefits directly to the employer's injured and to
the dependents of the employer's killed employees as required by
section 4123.35
of the Revised Code, shall be considered as the employee of the
person who has entered into a contract, whether written or
verbal, with such independent contractor unless such employees or
their legal representatives or beneficiaries elect, after injury
or death, to regard such independent contractor as the employer.
(2) "Employee" does not mean:
(a) A duly ordained, commissioned, or licensed minister or
assistant or associate minister of a church in the exercise of
ministry; or
(b) Any officer of a family farm corporation.
Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division (A)(2) of this section. If an
employer is a partnership, sole proprietorship, or family farm
corporation, such employer may elect to include as an "employee"
within this chapter, any member of such partnership, the owner of
the sole proprietorship, or the officers of the family farm
corporation. In the event of an election, the employer shall
serve upon the bureau of workers' compensation written notice
naming the persons to be covered, include such employee's
remuneration for premium purposes in all future payroll reports,
and no person excluded from the definition of "employee" pursuant
to division (A)(2) of this section, proprietor, or partner shall
be deemed an employee within this division until the employer has
served such notice.
For informational purposes only, the bureau shall prescribe
such language as it considers appropriate, on such of its forms
as it considers appropriate, to advise employers of their right
to elect to include as an "employee" within this chapter a sole
proprietor, any member of a partnership, the officers of a family
farm corporation, or a person excluded from the definition of
"employee" under division (A)(2)(a) of this section, that they
should check any health and disability insurance policy, or other
form of health and disability plan or contract, presently
covering them, or the purchase of which they may be considering,
to determine whether such policy, plan, or contract excludes
benefits for illness or injury that they might have elected to
have covered by workers' compensation.
(B) "Employer" means:
(1) The state, including state hospitals, each county,
municipal corporation, township, school district, and hospital
owned by a political subdivision or subdivisions other than the
state;
(2) Every person, firm, and private corporation, including
any public service corporation, that (a) has in service one or
more employees regularly in the same business or in or about the
same establishment under any contract of hire, express or
implied, oral or written, or (b) is bound by any such contract of
hire or by any other written contract, to pay into the insurance
fund the premiums provided by this chapter.
All such employers are subject to this chapter. Any member
of a firm or association, who regularly performs manual labor in
or about a mine, factory, or other establishment, including a
household establishment, shall be considered an employee in
determining whether such person, firm, or private corporation, or
public service corporation, has in its service, one or more
employees and the employer shall report the income derived from
such labor to the bureau as part of the payroll of such employer,
and such member shall thereupon be entitled to all the benefits
of an employee.
(C) "Injury" includes any injury, whether caused by
external accidental means or accidental in character and result,
received in the course of, and arising out of, the injured
employee's employment. "Injury" does not include:
(1) Psychiatric conditions except where the conditions
have arisen from an injury or occupational disease;
(2) Injury or disability caused primarily
by the natural
deterioration of tissue, an organ, or part of the body;
(3) Injury or disability incurred in voluntary
participation in an employer-sponsored recreation or fitness
activity if the employee signs a waiver of the employee's right to
compensation or benefits under this chapter prior to engaging in
the recreation or fitness activity.
(D) "Child" includes a posthumous child and a child
legally adopted prior to the injury.
(E) "Family farm corporation" means a corporation founded
for the purpose of farming agricultural land in which the
majority of the voting stock is held by and the majority of the
stockholders are persons or the spouse of persons related to each
other within the fourth degree of kinship, according to the rules
of the civil law, and at least one of the related persons is
residing on or actively operating the farm, and none of whose
stockholders are a corporation. A family farm corporation does
not cease to qualify under this division where, by reason of any
devise, bequest, or the operation of the laws of descent or
distribution, the ownership of shares of voting stock is
transferred to another person, as long as that person is within
the degree of kinship stipulated in this division.
(F) "Occupational disease" means a disease contracted in the course of
employment, which by its causes and the characteristics of its manifestation
or the condition of the employment results in a hazard which distinguishes the
employment in character from employment generally, and the employment creates
a risk of contracting the disease in greater degree and in a different manner
from the public in general.
(G) "Self-insuring employer" means any of the following
categories of employers if granted the privilege of paying
compensation and benefits directly under section 4123.35 of the
Revised Code:
(1) Any employer mentioned in division (B)(2) of this
section;
(2) A board of county hospital trustees;
(3) A publicly owned utility;
(4) A BOARD OF COUNTY COMMISSIONERS FOR THE SOLE PURPOSE OF CONSTRUCTING A
SPORTS FACILITY AS DEFINED IN SECTION 307.696 of the Revised Code, PROVIDED THAT THE ELECTORS
OF THE COUNTY IN WHICH THE SPORTS FACILITY IS TO BE BUILT HAVE APPROVED
CONSTRUCTION OF A SPORTS FACILITY BY BALLOT ELECTION NO LATER THAN
NOVEMBER 6, 1997.
Sec. 4123.25. (A) No employer shall misrepresent to the
bureau of workers' compensation the amount of payroll
upon which
the premium under this chapter is based. Whoever violates this
division shall be liable to the state in ten times the
amount of
the difference in premium paid and the amount the
employer should
have paid.
The liability to the state under this
division shall be enforced in a civil action in the name of
the state, and all sums collected under this division shall be paid into the
state insurance fund.
(B) No self-insuring employer shall misrepresent the
amount of paid compensation paid by such employer for purposes of
the assessments provided under this chapter and Chapter 4121. of
the Revised Code as required by section 4123.35 of the Revised
Code. Whoever violates this division is liable to the state in
an amount assessed by the self-insuring employers evaluation board pursuant to
division
(C) of
section 4123.352 of the Revised
Code or ten times the amount of the difference between the
assessment paid and the amount of the assessment that should have
been paid along with any other penalty as determined by the board. The
liability to the state under this division may be
enforced in a civil action in the name of the state and all sums
collected under this division shall be paid into the
self-insurance assessment fund created
pursuant to division (J)(K)
of section 4123.35 of the Revised Code.
Sec. 4123.35. (A) Except as provided in this section,
every employer mentioned in division (B)(2) of section 4123.01 of
the Revised Code, and every publicly owned utility shall pay semiannually
in the months of January and July into
the state insurance fund the amount of annual premium the
administrator of workers' compensation fixes for the employment
or occupation of the employer, the amount of which premium to be
paid by each employer to be determined by the classifications,
rules, and rates made and published by the administrator. The employer shall
pay semiannually a further sum of money into the state insurance
fund as
may be ascertained to be due
from the employer by applying the rules of the
administrator, and a receipt or certificate certifying that payment
has been made
shall be mailed immediately to the employer by the bureau of workers'
compensation. The receipt or certificate is prima facie evidence of the
payment of the premium.
The bureau of workers' compensation shall verify with the
secretary of state the existence of all corporations and
organizations making application for workers' compensation
coverage and shall require every such application to include the
employer's federal identification number.
An employer as defined in division (B)(2) of section
4123.01 of the Revised Code who has contracted with a
subcontractor is liable for the unpaid premium due from any
subcontractor with respect to that part of the payroll of the
subcontractor that is for work performed pursuant to the
contract with the employer.
Division (A) of THIS section 4123.35 of the Revised Code
providing for the payment
of premiums semiannually does not apply to any employer who was a subscriber
to the state insurance fund prior to January 1, 1914, or who may first
become a subscriber to the fund in any month other than January or
July. Instead, the semiannual premiums shall be paid by those
employers from time to time upon the expiration of the respective periods for
which payments into the fund have been made by them.
The administrator shall adopt rules to permit employers to
make periodic payments of the semiannual premium due under this
division. The rules shall include provisions for the assessment
of interest charges, where appropriate, and for the assessment of
penalties when an employer fails to make timely premium
payments. An employer who timely pays the amounts due under this
division is entitled to all of the benefits and protections of
this chapter. Upon receipt of payment, the bureau immediately
shall mail a receipt or certificate to the employer certifying that
payment has
been made, which receipt is prima-facie evidence of payment. Workers'
compensation coverage under this chapter continues
uninterrupted upon timely receipt of payment under this division.
Every employer mentioned in division (B)(1) of section
4123.01 of the Revised Code, except boards of county hospital
trustees that are self-insuring employers under this section, shall comply
with sections 4123.38 to 4123.41, and 4123.48 of
the Revised
Code in regard to the contribution of moneys to the public
insurance fund.
(B) Provided, that employers mentioned in division (B)(2)
of section 4123.01 of the Revised Code, boards of county hospital
trustees, and publicly owned utilities who will abide by the
rules of the administrator and who may be of sufficient financial
ability to render certain the payment of compensation to injured
employees or the dependents of killed employees, and the
furnishing of medical, surgical, nursing, and hospital attention
and services and medicines, and funeral expenses, equal to or
greater than is provided for in sections 4123.52, 4123.55 to
4123.62, and 4123.64 to 4123.67 of the Revised Code, and who do
not desire to insure the payment thereof or indemnify themselves
against loss sustained by the direct payment thereof, upon a
finding of such facts by the administrator, may be granted the privilege to pay
individually
compensation, and furnish medical, surgical, nursing, and
hospital services and attention and funeral expenses directly to
injured employees or the dependents of killed employees, thereby
being
granted status as a self-insuring employer. The
administrator may charge employers, boards of county hospital
trustees, or publicly owned utilities who apply for the status as
a self-insuring employer a reasonable application fee to cover
the bureau's costs in connection with processing and making a
determination with respect to an application. All employers
granted such status shall demonstrate sufficient financial and
administrative ability to assure that all obligations under this
section are promptly met. The administrator shall deny the
privilege where the employer is unable to demonstrate the
employer's ability to promptly meet all the obligations imposed on the
employer by this section. The administrator shall consider, but is not
limited
to, the following factors, where applicable, in determining the
employer's ability to meet all of the obligations imposed on the
employer by this section:
(1) The employer employs a minimum of five hundred
employees in this state;
(2) The employer has operated in this state for a minimum
of two years, provided that an employer who has purchased,
acquired, or otherwise succeeded to the operation of a business,
or any part thereof, situated in this state that has operated for
at least two years in this state, also shall qualify;
(3) Where the employer previously contributed to the state
insurance fund or is a successor employer as defined by bureau
rules, the amount of the buy-out, as defined by bureau rules;
(4) The sufficiency of the employer's assets located in
this state to insure the employer's solvency in paying
compensation directly;
(5) The financial records, documents, and data, certified
by a certified public accountant, necessary to provide the
employer's full financial disclosure. The records, documents,
and data include, but are not limited to, balance sheets and
profit and loss history for the current year and previous four
years.
(6) The employer's organizational plan for the
administration of the workers' compensation law;
(7) The employer's proposed plan to inform employees of
the change from a state fund insurer to a self-insuring employer,
the procedures the employer will follow as a self-insuring
employer, and the employees' rights to compensation and benefits;
and
(8) The employer has either an account in a financial
institution in this state, or if the employer maintains an
account with a financial institution outside this state, ensures
that workers' compensation checks are drawn from the same account
as payroll checks or the employer clearly indicates that payment
will be honored by a financial institution in this state.
The administrator may waive the requirements of divisions
(B)(1) and (2) of this section and the requirement of division
(B)(5) of this section that the financial records, documents, and
data be certified by a certified public accountant. The
administrator shall adopt rules establishing the criteria that an
employer shall meet in order for the administrator to waive the
requirement of division (B)(5) of this section. Such rules may
require additional security of that employer pursuant to division
(E) of section 4123.351 of the Revised Code. The administrator
shall not grant the status of self-insuring employer to any
public employer, other than publicly owned utilities and boards
of county hospital trustees.
(C) PROVIDED, THAT A BOARD OF COUNTY COMMISSIONERS MENTIONED IN DIVISION
(G)(4) OF SECTION 4123.01 OF THE
REVISED CODE,
AS AN EMPLOYER, THAT WILL ABIDE BY THE RULES OF THE ADMINISTRATOR AND THAT MAY
BE OF SUFFICIENT FINANCIAL ABILITY TO RENDER CERTAIN THE PAYMENT OF
COMPENSATION TO INJURED EMPLOYEES OR THE DEPENDENTS OF KILLED EMPLOYEES, AND
THE FURNISHING OF MEDICAL, SURGICAL, NURSING, AND HOSPITAL ATTENTION AND
SERVICES AND MEDICINES, AND FUNERAL EXPENSES, EQUAL TO OR GREATER THAN IS
PROVIDED FOR IN SECTIONS 4123.52, 4123.55 TO 4123.62, AND 4123.64 TO 4123.67
OF
THE REVISED
CODE, AND THAT DOES NOT DESIRE TO INSURE THE
PAYMENT THEREOF OR INDEMNIFY ITSELF AGAINST LOSS SUSTAINED BY THE DIRECT
PAYMENT THEREOF, UPON A FINDING OF SUCH FACTS BY THE ADMINISTRATOR, MAY BE
GRANTED THE PRIVILEGE TO PAY INDIVIDUALLY COMPENSATION, AND FURNISH MEDICAL,
SURGICAL, NURSING, AND HOSPITAL SERVICES AND ATTENTION AND FUNERAL EXPENSES
DIRECTLY TO INJURED EMPLOYEES OR THE DEPENDENTS OF KILLED EMPLOYEES, THEREBY
BEING GRANTED STATUS AS A SELF-INSURING EMPLOYER. THE ADMINISTRATOR MAY
CHARGE
A BOARD OF COUNTY COMMISSIONERS MENTIONED IN DIVISION
(G)(4) OF SECTION 4123.01 OF THE
REVISED CODE
THAT APPLIES FOR THE STATUS AS A SELF-INSURING EMPLOYER A REASONABLE
APPLICATION FEE TO COVER THE BUREAU'S COSTS IN CONNECTION WITH PROCESSING AND
MAKING A DETERMINATION WITH RESPECT TO AN APPLICATION. ALL EMPLOYERS GRANTED
SUCH STATUS SHALL DEMONSTRATE SUFFICIENT FINANCIAL AND ADMINISTRATIVE ABILITY
TO ASSURE THAT ALL OBLIGATIONS UNDER THIS SECTION ARE PROMPTLY MET. THE
ADMINISTRATOR SHALL DENY THE PRIVILEGE WHERE THE EMPLOYER IS UNABLE TO
DEMONSTRATE THE EMPLOYER'S ABILITY TO PROMPTLY MEET ALL THE OBLIGATIONS
IMPOSED
ON THE EMPLOYER BY THIS SECTION. THE ADMINISTRATOR SHALL CONSIDER, BUT IS NOT
LIMITED TO, THE FOLLOWING FACTORS, WHERE APPLICABLE, IN DETERMINING THE
EMPLOYER'S ABILITY TO MEET ALL OF THE OBLIGATIONS IMPOSED ON THE BOARD AS AN
EMPLOYER BY THIS SECTION:
(1) THE BOARD AS AN EMPLOYER EMPLOYS A MINIMUM OF FIVE HUNDRED
EMPLOYEES IN THIS STATE;
(2) THE BOARD HAS OPERATED IN THIS STATE FOR A MINIMUM OF TWO YEARS;
(3) WHERE THE BOARD PREVIOUSLY CONTRIBUTED TO THE STATE INSURANCE
FUND OR IS A SUCCESSOR EMPLOYER AS DEFINED BY BUREAU RULES, THE AMOUNT OF THE
BUY-OUT, AS DEFINED BY BUREAU RULES;
(4) THE SUFFICIENCY OF THE BOARD'S ASSETS LOCATED IN THIS STATE TO
INSURE THE BOARD'S SOLVENCY IN PAYING COMPENSATION DIRECTLY;
(5) THE FINANCIAL RECORDS, DOCUMENTS, AND DATA, CERTIFIED BY A
CERTIFIED PUBLIC ACCOUNTANT, NECESSARY TO PROVIDE THE BOARD'S FULL FINANCIAL
DISCLOSURE. THE RECORDS, DOCUMENTS, AND DATA INCLUDE, BUT ARE NOT LIMITED TO,
BALANCE SHEETS AND PROFIT AND LOSS HISTORY FOR THE CURRENT YEAR AND PREVIOUS
FOUR YEARS.
(6) THE BOARD'S ORGANIZATIONAL PLAN FOR THE ADMINISTRATION OF THE
WORKERS' COMPENSATION LAW;
(7) THE BOARD'S PROPOSED PLAN TO INFORM EMPLOYEES OF THE PROPOSED
SELF-INSURANCE, THE PROCEDURES THE BOARD WILL FOLLOW AS A SELF-INSURING
EMPLOYER, AND THE EMPLOYEES' RIGHTS TO COMPENSATION AND BENEFITS;
(8) THE BOARD HAS EITHER AN ACCOUNT IN A FINANCIAL INSTITUTION IN
THIS STATE, OR IF THE BOARD MAINTAINS
AN ACCOUNT WITH A FINANCIAL INSTITUTION OUTSIDE THIS STATE,
ENSURES THAT WORKERS' COMPENSATION CHECKS ARE DRAWN FROM THE
SAME ACCOUNT AS PAYROLL CHECKS OR THE BOARD CLEARLY INDICATES
THAT PAYMENT WILL BE HONORED BY A FINANCIAL INSTITUTION IN THIS
STATE;
(9) THE BOARD SHALL PROVIDE THE ADMINISTRATOR A SURETY BOND IN AN
AMOUNT EQUAL TO ONE HUNDRED TWENTY-FIVE PER CENT OF THE PROJECTED LOSSES AS
DETERMINED BY THE ADMINISTRATOR.
(D) The administrator shall require a surety bond from all
self-insuring employers, issued pursuant to section 4123.351 of
the Revised Code, that is sufficient to compel, or secure to
injured employees, or to the dependents of employees killed, the
payment of compensation and expenses, which shall in no event be
less than that paid or furnished out of the state insurance fund
in similar cases to injured employees or to dependents of killed
employees whose employers contribute to the fund, except when an
employee of the employer, who has suffered the loss of a hand,
arm, foot, leg, or eye prior to the injury for which compensation
is to be paid, and thereafter suffers the loss of any other of
the members as the result of any injury sustained in the course
of and arising out of the employee's employment, the
compensation to be paid by the self-insuring employer is limited to the
disability suffered in the subsequent injury, additional
compensation, if
any, to be paid by the bureau out of the surplus created by
section 4123.34 of the Revised Code.
(D)(E) In addition to the requirements of this section, the
administrator shall make and publish rules governing the manner
of making application and the nature and extent of the proof
required to justify a finding of fact by the administrator as to
granting the status of a self-insuring employer, which rules
shall be general in their application, one of which rules shall
provide that all self-insuring employers shall pay into the state
insurance fund such amounts as are required to be credited to the
surplus fund in division (B) of section 4123.34 of the Revised
Code.
Employers shall secure directly from the bureau central
offices application forms upon which the bureau shall stamp a
designating number. Prior to submission of an application, an
employer shall make available to the bureau, and the bureau shall
review, the information described in divisions (B)(1) to (8) of
this section. An employer shall file the completed application
forms with an application fee, which shall cover the costs of
processing the application, as established by the administrator,
by rule, with the bureau at least ninety days prior to the
effective date of the employer's new status as a self-insuring
employer. The application form is not deemed complete until all
the required information is attached thereto. The bureau shall
only accept applications that contain the required information.
(E)(F) The bureau shall review completed applications within
a reasonable time. If the bureau determines to grant an employer
the status as a self-insuring employer, the bureau shall issue a
statement, containing its findings of fact, that is prepared by
the bureau and signed by the administrator. If the bureau
determines not to grant the status as a self-insuring employer,
the bureau shall notify the employer of the determination and
require the employer to continue to pay its full premium into the
state insurance fund. The administrator also shall adopt rules
establishing a minimum level of performance as a criterion for
granting and maintaining the status as a self-insuring employer
and fixing time limits beyond which failure of the self-insuring
employer to provide for the necessary medical examinations and
evaluations may not delay a decision on a claim.
(F)(G) The administrator shall adopt rules setting forth
procedures for auditing the program of self-insuring employers. The bureau
shall conduct the audit upon a random basis or
whenever the bureau has grounds for believing that an employer is
not in full compliance with bureau rules or this chapter.
The administrator shall monitor the programs conducted by
self-insuring employers, to ensure compliance with bureau
requirements and for that purpose, shall develop and issue to
self-insuring employers standardized forms for use by the
employer in all aspects of the employers' direct compensation
program and for reporting of information to the bureau.
The bureau shall receive and transmit to the employer all
complaints concerning any self-insuring employer. In the case of
a complaint against a self-insuring employer, the administrator
shall handle the complaint through the self-insurance division of
the bureau. The bureau shall maintain a file by employer of all
complaints received that relate to the employer. The bureau
shall evaluate each complaint and take appropriate action.
The administrator shall adopt as a rule a prohibition
against any self-insuring employer from harassing, dismissing, or
otherwise disciplining any employee making a complaint, which
rule shall provide for a financial penalty to be levied by the
administrator payable by the offending employer.
(G)(H) For the purpose of making determinations as to whether
to grant status as a self-insuring employer, the administrator
may subscribe to and pay for a credit reporting service that
offers financial and other business information about individual
employers. The costs in connection with the bureau's
subscription or individual reports from the service about an
applicant may be included in the application fee charged
employers under this section.
(H)(I) The administrator, notwithstanding other
provisions of this chapter, may permit a self-insuring employer to
resume payment of premiums to the state insurance fund with
appropriate credit modifications to the employer's basic premium
rate as such rate is determined pursuant to section 4123.29 of
the Revised Code.
(I)(J) On the first day of July of each year, the
administrator shall calculate separately each self-insuring
employer's assessments for the safety and hygiene fund,
administrative costs pursuant to section 4123.342 of the Revised
Code, and for the portion of the surplus fund under division (B)
of section 4123.34 of the Revised Code that is not used for
handicapped reimbursement, on the basis of the paid compensation
attributable to the individual self-insuring employer according
to the following calculation:
(1) The total assessment against all self-insuring
employers as a class for each fund and for the administrative
costs for the year that the assessment is being made, as
determined by the administrator, divided by the total amount of
paid compensation for the previous calendar year attributable to
all amenable self-insuring employers;
(2) Multiply the quotient in division (I)(J)(1) of this
section by the total amount of paid compensation for the previous
calendar year that is attributable to the individual
self-insuring employer for whom the assessment is being
determined. Each self-insuring employer shall pay the assessment
that results from this calculation, unless the assessment
resulting from this calculation falls below a minimum assessment,
which minimum assessment the administrator shall determine on the
first day of July of each year with the advice and consent of the workers'
compensation oversight commission, in which event, the self-insuring employer
shall pay the minimum assessment.
In determining the total amount due for the total
assessment against all self-insuring employers as a class for
each fund and the administrative assessment, the administrator
shall reduce proportionately the total for each
fund and
assessment by the amount of money in the self-insurance
assessment fund as of the date of the computation of the
assessment.
The administrator shall calculate the assessment for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that is used for handicapped reimbursement in
the same manner as set forth in divisions (I)(J)(1) and (2) of
this
section except that the administrator shall calculate the total
assessment for this portion of the surplus fund only on the basis
of those self-insuring employers that retain participation in the
handicapped reimbursement program and the individual
self-insuring employer's proportion of paid compensation shall be
calculated only for those self-insuring employers who retain
participation in the handicapped reimbursement program. The
administrator, as the administrator determines
appropriate, may determine the
total assessment for the handicapped portion of the surplus fund
in accordance with sound actuarial principles.
The administrator shall calculate the assessment for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that under division (D) of section 4121.66 of
the Revised Code is used for rehabilitation costs in the same
manner as set forth in divisions (I)(J)(1) and (2) of this
section,
except that the administrator shall calculate the total
assessment for this portion of the surplus fund only on the basis
of those self-insuring employers who have not made the election
to make payments directly under division (D) of section 4121.66
of the Revised Code and an individual self-insuring employer's
proportion of paid compensation only for those self-insuring
employers who have not made that election.
An employer who no longer is a self-insuring employer in
this state or who no longer is operating in this state, shall
continue to pay assessments for administrative costs and for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that is not used for handicapped
reimbursement, based upon paid compensation attributable to
claims that occurred while the employer was a self-insuring
employer within this state.
(J)(K) There is hereby created in the state treasury the
self-insurance assessment fund. All investment earnings of the
fund shall be deposited in the fund. The administrator shall use
the money in the self-insurance assessment fund only for
administrative costs as specified in section 4123.341 of the
Revised Code.
(K)(L) Every self-insuring employer shall certify, in
affidavit form subject to the penalty for perjury, to the bureau
the amount of the self-insuring employer's paid compensation for
the previous calendar year. In reporting paid compensation paid
for the previous year, a self-insuring employer shall exclude
from the total amount of paid compensation any reimbursement the
employer receives in the previous calendar year from the surplus
fund pursuant to section 4123.512 of the Revised Code for any
paid compensation. The self-insuring employer also shall exclude
from the paid compensation reported any amount recovered under
section 4123.93 of the Revised Code and any amount that is
determined not to have been payable to or on behalf of a claimant
in any final administrative or judicial proceeding. The
self-insuring employer shall exclude such amounts from the paid
compensation reported in the reporting period subsequent to the
date the determination is made. The administrator shall adopt
rules, in accordance with Chapter 119. of the Revised Code,
establishing the date by which self-insuring employers must
submit such information and the amount of the assessments
provided for in division (I)(J) of this section for employers
who
have been granted self-insuring status within the last calendar
year.
The administrator shall include any assessment that remains
unpaid for previous assessment periods in the calculation and
collection of any assessments due under this division or division
(I)(J) of this section.
(L)(M) As used in this section, "paid compensation" means all
amounts paid by a self-insuring employer for living maintenance
benefits, all amounts for compensation paid pursuant to sections
4121.63, 4121.67, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60,
and 4123.64 of the Revised Code, all amounts paid as wages in
lieu of such compensation, all amounts paid in lieu of such
compensation under a nonoccupational accident and sickness
program fully funded by the self-insuring employer, and all
amounts paid by a self-insuring employer for a violation of a
specific safety standard pursuant to Section 35 of Article II,
Ohio Constitution and section 4121.47 of the Revised Code.
(M)(N) Should any section of this chapter or Chapter 4121. of
the Revised Code providing for self-insuring employers'
assessments based upon compensation paid be declared
unconstitutional by a final decision of any court, then that
section of the Revised Code declared unconstitutional shall
revert back to the section in existence prior to November 3,
1989, providing for assessments based upon payroll.
(N)(O) The administrator may grant a self-insuring employer
the
privilege to self-insure a construction project entered into by the
self-insuring employer that is scheduled for completion within six years after
the date the project begins, and the total cost of which is estimated to
exceed
one hundred million dollars. The administrator may waive such cost and time
criteria and grant a self-insuring employer the privilege to self-insure a
construction project regardless of the time needed to complete
the construction project and provided that the cost of the construction
project is estimated to exceed fifty million dollars. A self-insuring
employer who desires to self-insure
a construction project shall submit to the administrator an application
listing the dates the construction project is scheduled to begin and end, the
estimated
cost of the construction project, the contractors and subcontractors whose
employees are to be self-insured by the self-insuring employer, the
provisions of a safety program that is specifically designed for the
construction project, and a statement as to whether a collective
bargaining agreement governing the rights, duties, and
obligations of each of the parties to the agreement with respect
to the construction project exists between the self-insuring
employer and a labor organization.
A self-insuring employer may apply to self-insure the employees of either
of the following:
(1) All contractors and subcontractors who perform labor or
work or provide materials for the construction project;
(2) All contractors and, at the administrator's discretion, a substantial
number of all the subcontractors who perform labor or work or provide
materials for the construction project.
Upon approval of the application, the administrator shall mail a
certificate granting the privilege to self-insure the construction project to
the self-insuring employer. The certificate shall contain the name of the
self-insuring employer and the name, address, and telephone number of the
self-insuring employer's representatives who are responsible for administering
workers' compensation claims for the construction project. The self-insuring
employer shall post the certificate in a conspicuous place at the site of the
construction project.
The administrator shall maintain a record of the contractors and
subcontractors whose employees are covered under the certificate issued to the
self-insured employer. A self-insuring employer immediately shall notify the
administrator when any contractor or subcontractor is added or eliminated
from inclusion under the certificate.
Upon approval of the application, the self-insuring employer is
responsible for the administration and payment of all claims under this
chapter and Chapter 4121. of the Revised Code
for the employees of the contractor and subcontractors covered under the
certificate who receive injuries or are killed in the course of and arising
out of employment
on the construction project, or who contract an occupational disease in the
course of employment on the construction project. For purposes of this
chapter and Chapter 4121. of the Revised Code,
a claim that is administered and paid in accordance with this division is
considered a claim against the self-insuring employer listed in the
certificate. A contractor or subcontractor included under the certificate
shall report to the self-insuring employer listed in the certificate, all
claims that arise under this chapter and
Chapter 4121. of the Revised Code
in connection with the construction project for which the certificate is
issued.
A self-insuring employer who complies with this division is entitled to
the protections provided under this chapter and
Chapter 4121. of the Revised Code
with respect to the employees of the contractors and subcontractors covered
under a certificate issued under this division for death or injuries that
arise out of, or death, injuries, or occupational diseases that arise in the
course of, those
employees' employment on that construction project, as if the employees were
employees of the self-insuring employer, provided that the self-insuring
employer also complies with this section. No employee of the contractors and
subcontractors covered under a certificate issued under this division shall be
considered the employee of the self-insuring employer listed in that
certificate for any purposes other than this chapter and
Chapter 4121. of the Revised Code. Nothing in this
division gives a self-insuring employer authority to control
the means, manner, or method of employment of the employees of the contractors
and subcontractors covered under a certificate issued under this
division.
The contractors and subcontractors included under a certificate issued
under this division are entitled to the protections provided under this
chapter and Chapter 4121. of the Revised Code
with respect to the contractor's or subcontractor's employees who are employed
on the construction project which is the subject of the certificate, for
death or injuries that arise out of, or death, injuries, or occupational
diseases that arise in
the course of, those employees' employment on that construction project.
The contractors and subcontractors included under a certificate issued
under this division shall identify in their payroll records the employees who
are considered the employees of the self-insuring employer listed in that
certificate for purposes of this chapter and
Chapter 4121. of the
Revised Code, and the amount that those employees earned for
employment on the construction project that is the subject of that
certificate. Notwithstanding any provision to the contrary under this chapter
and
Chapter 4121. of the Revised Code,
the administrator shall exclude the payroll that is reported for employees who
are considered the employees of the self-insuring employer listed in that
certificate, and that the employees earned for employment on the construction
project that is the subject of that certificate, when determining those
contractors' or subcontractors' premiums or assessments required under
this chapter and Chapter 4121. of the Revised Code. A self-insuring employer
issued a certificate under this division shall
include in the amount of paid compensation it reports pursuant to division
(K)(L) of this section, the amount of paid
compensation the self-insuring employer paid pursuant to this division for the
previous calendar year.
Nothing in this division shall be construed as altering the rights of
employees under this chapter and Chapter 4121. of the Revised
Code as those rights existed prior to
the effective date of this amendment SEPTEMBER 17,
1996. Nothing in this division shall be
construed
as altering the rights devolved under sections 2305.31 and 4123.82 of the
Revised Code as those rights existed prior to the effective date of this
amendment SEPTEMBER 17, 1996.
As used in this division, "privilege to self-insure a construction
project" means privilege to pay individually compensation, and to furnish
medical, surgical, nursing, and hospital services and attention and funeral
expenses directly to injured employees or the dependents of killed
employees.
(O)(P) A self-insuring employer whose application is granted
under
division (N)(O) of this section shall designate a safety
professional to
be responsible for the administration and enforcement of the safety program
that is specifically designed for the construction project that is the subject
of the application.
A self-insuring employer whose application is granted under division
(N)(O) of
this section shall employ an ombudsperson for the construction project that is
the subject of the application. The ombudsperson shall have experience in
workers' compensation or the construction industry, or both. The ombudsperson
shall perform all of the following duties:
(1) Communicate with and provide information to employees who are
injured in the course of, or whose injury arises out of employment on the
construction project, or who contract an occupational disease in the course of
employment on the construction project;
(2) Investigate the status of a claim upon the request of an employee to
do so;
(3) Provide information to claimants, third party administrators,
employers, and other persons to assist those persons in protecting their
rights under this chapter and Chapter 4121. of the
Revised Code.
A self-insuring employer whose application is granted under division
(N)(O) of this section shall post the name of the
safety professional and the ombudsperson and instructions for contacting the
safety professional and the ombudsperson in a conspicuous
place at the site of the construction project.
(P)(Q) The administrator may consider all of the
following when deciding whether to grant a self-insuring
employer the privilege to self-insure a construction project as
provided under division (N)(O) of
this section:
(1) Whether the self-insuring employer has an
organizational plan for the administration of the workers'
compensation law;
(2) Whether the safety program that is specifically
designed for the construction project provides for the safety of
employees employed on the construction project, is applicable
to all contractors and subcontractors who perform labor or work
or provide materials for the construction project, and has a component, a
safety training program that complies with standards adopted pursuant to the
"Occupational Safety and Health Act of
1970," 84 Stat. 1590, 29 U.S.C.A. 651, and provides for continuing
management and employee involvement;
(3) Whether granting the privilege to self-insure the
construction project will reduce the costs of the construction
project;
(4) Whether the self-insuring employer has employed an
ombudsperson as required under division
(O)(P) of this section;
(5) Whether the self-insuring employer has sufficient
surety to secure the payment of claims for which the
self-insuring employer would be responsible pursuant to the
granting of the privilege to self-insure a construction project
under division (N)(O) of this
section.
Sec. 4123.512. (A) The claimant or the employer may
appeal an order of the industrial commission made under division
(E) of section 4123.511 of the Revised Code in any injury or
occupational disease case, other than a decision as to the extent
of disability to the court of common pleas of the county in
which the injury was inflicted or in which the contract of
employment was made if the injury occurred outside the state, or
in which the contract of employment was made if the exposure
occurred outside the state. If no common pleas court has
jurisdiction for the purposes of an appeal by the use of the
jurisdictional requirements described in this division, the
appellant may use the venue provisions in the Rules of Civil
Procedure to vest jurisdiction in a court. If the claim is for
an occupational disease the appeal shall be to the court of
common pleas of the county in which the exposure which caused the
disease occurred. Like appeal may be taken from an order of a
staff hearing officer made under division (D) of section 4123.511
of the Revised Code from which the commission has refused to hear
an appeal. The appellant shall file the notice of appeal with a
court of common pleas within sixty days after the date of the
receipt of the order appealed from or the date of receipt of the
order of the commission refusing to hear an appeal of a staff
hearing officer's decision under division (D) of section 4123.511
of the Revised Code. The filing of the notice of the appeal with
the court is the only act required to perfect the appeal.
If an action has been commenced in a court of a county
other than a court of a county having jurisdiction over the
action, the court, upon notice by any party or upon its own
motion, shall transfer the action to a court of a county having
jurisdiction.
Notwithstanding anything to the contrary in this section,
if the commission determines under section 4123.522 of the
Revised Code that an employee, employer, or their respective
representatives have not received written notice of an order or
decision which is appealable to a court under this section and
which grants relief pursuant to section 4123.522 of the Revised
Code, the party granted the relief has sixty days from receipt of
the order under section 4123.522 of the Revised Code to file a
notice of appeal under this section.
(B) The notice of appeal shall state the names of the
claimant and the employer, the number of the claim, the date of
the order appealed from, and the fact that the appellant appeals
therefrom.
The administrator, the claimant, and the employer shall be
parties to the appeal and the court, upon the application of the
commission, shall make the commission a party. The administrator
shall notify the employer that if he THE EMPLOYER fails to
become an active
party to the appeal, then the administrator may act on behalf of
the employer and the results of the appeal could have an adverse
effect upon the employer's premium rates.
(C) The attorney general or one or more of his THE ATTORNEY
GENERAL'S assistants
or special counsel designated by him THE ATTORNEY GENERAL shall
represent the administrator and the commission. In the event the attorney
general or his THE ATTORNEY GENERAL'S designated assistants or
special counsel are
absent, the administrator or the commission shall select one or
more of the attorneys in the employ of the administrator or the
commission as his THE ADMINISTRATOR'S ATTORNEY or
its THE COMMISSION'S attorney in the appeal. Any attorney so
employed shall continue his THE representation during the entire
period of the appeal and in all hearings thereof except where the
continued representation becomes impractical.
(D) Upon receipt of notice of appeal the clerk of courts
shall provide notice to all parties who are appellees and to the
commission.
The claimant shall, within thirty days after the filing of
the notice of appeal, file a petition containing a statement of
facts in ordinary and concise language showing a cause of action
to participate or to continue to participate in the fund and
setting forth the basis for the jurisdiction of the court over
the action. Further pleadings shall be had in accordance with
the Rules of Civil Procedure, provided that service of summons on
such petition shall not be required. The clerk of the court shall,
upon receipt thereof, transmit by certified mail a copy
thereof to each party named in the notice of appeal other than
the claimant. Any party may file with the clerk prior to the
trial of the action a deposition of any physician taken in
accordance with the provisions of the Revised Code, which
deposition may be read in the trial of the action even though the
physician is a resident of or subject to service in the county in
which the trial is had. The bureau of workers' compensation
shall pay the cost of the stenographic deposition filed in court and of
copies
of the stenographic deposition for each party from the surplus fund and
charge
the costs thereof against the unsuccessful party if the
claimant's right to participate or continue to participate is
finally sustained or established in the appeal. In the event the
deposition is taken and filed, the physician whose deposition is
taken is not required to respond to any subpoena issued in the
trial of the action. The court, or the jury under the
instructions of the court, if a jury is demanded, shall determine
the right of the claimant to participate or to continue to
participate in the fund upon the evidence adduced at the hearing
of the action.
(E) The court shall certify its decision to the commission
and the certificate shall be entered in the records of the court.
Appeals from the judgment are governed by the law applicable to
the appeal of civil actions.
(F) The cost of any legal proceedings authorized by this
section, including an attorney's fee to the claimant's attorney
to be fixed by the trial judge, based upon the effort expended,
in the event the claimant's right to participate or to continue
to participate in the fund is established upon the final
determination of an appeal, shall be taxed against the employer
or the commission if the commission or the administrator rather
than the employer contested the right of the claimant to
participate in the fund. The attorney's fee shall not exceed
twenty-five hundred dollars.
(G) If the finding of the court or the verdict of the jury
is in favor of the claimant's right to participate in the fund,
the commission and the administrator shall thereafter proceed in
the matter of the claim as if the judgment were the decision of
the commission, subject to the power of modification provided by
section 4123.52 of the Revised Code.
(H) An appeal from an order issued under division (E) of
section 4123.511 of the Revised Code or any action filed in court
in a case in which an award of compensation has been made shall
not stay the payment of compensation under the award or payment
of compensation for subsequent periods of total disability during
the pendency of the appeal. If, in a final administrative or
judicial action, it is determined that payments of compensation
or benefits, or both, made to or on behalf of a claimant should
not have been made, the amount thereof shall be charged to the
surplus fund under division (B) of section 4123.34 of the Revised
Code. In the event the employer is a state risk, the amount
shall not be charged to the employer's experience. In the event
the employer is a self-insuring employer, the self-insuring
employer shall deduct the amount from the paid compensation he THE
SELF-INSURING EMPLOYER
reports to the administrator under division (K)(L) of section
4123.35 of the Revised Code. All actions and proceedings under
this section which are the subject of an appeal to the court of
common pleas or the court of appeals shall be preferred over all
other civil actions except election causes, irrespective of
position on the calendar.
This section applies to all decisions of the commission or
the administrator on November 2, 1959, and all claims filed
thereafter are governed by sections 4123.511 and 4123.512 of the
Revised Code.
Any action pending in common pleas court or any other court
on January 1, 1986, under this section is governed by former
sections 4123.514, 4123.515, 4123.516, and 4123.519 and section
4123.522 of the Revised Code.
Section 2. That existing sections 1751.02, 1751.03, 1751.04, 1751.12, 1751.13,
3901.04,
3901.041, 3901.16, 3924.10, 4121.121, 4123.01, 4123.25, 4123.35, and 4123.512
of the Revised Code are hereby
repealed.
Section 3. Sections 1 and 2 of this act, except for sections 1751.12,
4121.121, 4123.01, 4123.25, 4123.35, and 4123.512 of the
Revised Code, as amended by this act, shall take effect October 1, 1998.
Sections 1751.12 and 4121.121 of the
Revised Code, as amended by this act, shall take effect on the ninetieth day
after the effective date of this act.
Section 4. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is
that immediate action is necessary to ensure that a board of
county commissioners may reserve necessary revenues at the
earliest possible time in order to self-insure the construction
of a recent voter-approved sports stadium and to assure the
effective operation of this fund. Therefore, this act shall go
into immediate effect.
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