Network adequacy - required disclosures - balance billing - rules - legislative declaration - definitions

(a) Provider-covered person ratios by specialty, which may include the use of providers through telehealth for services that may appropriately be provided through telehealth;

(b) Primary care provider-covered person ratios;

(c) Geographic accessibility, which in some circumstances may require the crossing of county or state lines;

(d) Waiting times for appointments with participating providers;

(e) Hours of operation;

(f) The volume of technological and specialty services available to serve the needs of covered persons requiring covered technologically advanced or specialty care; and

(g) An adequate number of accessible acute care hospital services within a reasonable distance, travel time, or both.

(1.5) (a) (I) The commissioner shall promulgate rules, consistent with federal law, to:

(A) Require a carrier providing managed care plans to include essential community providers in the carrier's network; or

(B) Allow a carrier providing managed care plans that provides a majority of covered professional services through physicians employed by the carrier or through a single contracted medical group to comply with the alternate standard for essential community providers permitted under federal law.

(II) For purposes of the rules, essential community providers includes providers that serve predominately low-income, medically underserved individuals, such as health-care providers defined in the federal law and under part 4 of article 5 of title 25.5; except that nothing in this subsection (1.5) requires any carrier to provide coverage for any specific medical procedure.

(b) The commissioner may promulgate rules to require carriers to be accredited by an accrediting entity recognized by the United States department of health and human services.

(2) (a) In any case where the carrier has no participating providers to provide a covered benefit, the carrier shall arrange for a referral to a provider with the necessary expertise and ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the benefit were obtained from participating providers.

(b) (I) A carrier offering a managed care plan with out-of-network benefits, that is not a health maintenance organization or a health maintenance organization with a point of service plan, may require that a covered person travel a reasonable distance beyond the requirements of subsection (6) of this section for care within an adequate provider network in order to receive services from a participating provider. This paragraph (b) shall only apply if:

(A) The covered person resides outside of a metropolitan statistical area or primary metropolitan statistical area and the carrier has no participating providers to provide covered benefits in such geographic area; and

(B) The carrier demonstrates upon request by the commissioner, that the carrier has made unsuccessful good faith efforts to contract with local providers on reasonable terms.

(II) Subsection (2)(b)(I) of this section shall not apply to:

(A) Emergency services or primary care providers; and

(B) Cases in which the covered person is so severely ill or impaired that such person is unable to move from place to place without the aide of a mechanical device; has a physical or mental condition, verified by a physician licensed to practice medicine in this state or practicing medicine pursuant to section 12-240-107 (3)(i), that substantially limits the person's ability to move from place to place; or suffers from a physical hardship such that travel would threaten the safety or welfare of the covered person as verified by the covered person's in-network treating physician. Decisions in which a carrier contests the covered person's ability to travel may be appealed pursuant to section 10-16-113 or 10-16-113.5.

(c) (I) In cases where, as a result of the provisions of subparagraph (I) of paragraph (b) of this subsection (2), a covered person is required to travel a reasonable distance beyond the requirements of subsection (6) of this section for an adequate network in order to receive services from a participating provider, and the covered person knowingly seeks services from a nonparticipating provider, the carrier shall be responsible to pay to the provider the lesser of:

(A) The nonparticipating provider's bill charges;

(B) A negotiated rate; or

(C) In the absence of a negotiated rate, the greater of the carrier's average in-network rate for the relevant geographic area or the usual, customary, and reasonable rate for such geographic area. Nothing in this paragraph (c) shall require either a carrier or a nonparticipating provider to attempt to negotiate a reimbursement rate.

(II) Upon request the carrier shall disclose to the covered person or the nonparticipating provider whether the amount reimbursed to the nonparticipating provider was the nonparticipating provider's billed charges, a negotiated rate, or the greater of the carrier's average in-network rate for the relevant geographic area or the usual, customary, and reasonable rate for such geographic area.

(III) A nonparticipating provider may balance bill the covered person in the event that the reimbursement rate described in subparagraph (I) of this paragraph

(c) is not equal to the billed charges.

(IV) The commissioner shall promulgate rules defining the relevant geographic area for the purposes of sub-subparagraph (C) of subparagraph (I) of this paragraph (c). In the promulgation of such rules, the commissioner shall group together counties with similar demographic and economic characteristics. Such characteristics shall include, but not be limited to, average per capita income, the cost of housing, general cost of living, poverty and unemployment levels, or the primary economic base of the county.

(d) The carrier shall provide, in conspicuous, bold-faced type, an understandable disclosure in policy contract materials, certificates of coverage for a policyholder, and marketing materials about the following:

(I) Specific counties of the state where there are no participating providers;

(II) The circumstances under which the covered person may be balanced billed by nonparticipating providers; and

(III) The mechanisms to obtain the carrier's reimbursement rates to nonparticipating providers for specific covered health-care services.

(e) (I) A carrier shall make available upon request from the covered person or the nonparticipating provider, from whom the covered person is seeking treatment, the carrier's usual, customary, and reasonable rate for reimbursement for specific health-care services.

(II) The commissioner may, upon receipt of one or more complaints from a covered person or a covered person's nonparticipating treating provider, review the carrier's usual, customary, and reasonable rate to determine if the rate is established pursuant to an appropriate methodology that is based on generally accepted industry standards and practices.

(III) The carrier's methodology for determining usual, customary, and reasonable reimbursement rates shall be applied in a uniform manner statewide; except that geographic adjustments may be made apart from the standard methodology.

(f) Repealed.

(g) A health maintenance organization offering health benefits in this state may:

(I) Offer health benefit coverage in accordance with paragraph (i) of this subsection (2) to a small employer that is not located, or whose employees do not work or reside, within the health maintenance organization's geographic service area;

(II) Offer health benefit coverage in accordance with paragraph (i) of this subsection (2) in a geographic area within the carrier's service area in which a health maintenance organization is unable to maintain an adequate network and is able to demonstrate to the commissioner upon request that the carrier has made unsuccessful good faith efforts to contract with local providers on reasonable terms; or

(III) Offer coverage pursuant to this paragraph (g) within a geographic area consistent with the requirements of section 10-16-105 (1) and (4).

(h) The health maintenance organization shall provide a disclosure to a small employer and its employees who purchase health insurance coverage under the circumstance described in this paragraph (h). Such disclosure shall also be given in writing to all interested policyholders and certificate holders as part of the sales and marketing materials before the insurer or entity approves an application for insurance from an insured. The disclosure shall contain the following statement: Interested policyholders, certificate holders, and enrollees are hereby given notice that this small group policy requires that an insured travel outside of the geographic area to receive covered health benefits. The carrier shall, in a conspicuous location on the policy contract materials, certificates of coverage for a policyholder, and marketing materials, provide the disclosure required by this paragraph (h) in bold-faced, twelve-point type and all capital letters.

(i) (I) A health maintenance organization that offers coverage pursuant to this section may require that a covered person travel a reasonable distance beyond the area specified under subsection (6) of this section in order to receive services from a participating provider. Except for emergency services and benefits available for out-of-network services, in such cases where the covered person is required to travel a reasonable distance to receive services from a participating provider and knowingly seeks services from a nonparticipating provider, the health maintenance organization shall be responsible to pay for the lesser of:

(A) The provider's billed charges;

(B) A negotiated rate; or

(C) In the absence of a negotiated rate, the greater of the health maintenance organization's average in-network rate for the relevant geographic area or the usual, customary, and reasonable rate for such geographic area.

(II) Upon request, the health maintenance organization shall disclose to the covered person or the nonparticipating provider whether the amount reimbursed to the nonparticipating provider was the nonparticipating provider's billed charges, a negotiated rate, or the greater of the carrier's average in-network rate for the relevant geographic area or the usual, customary, and reasonable rate for such geographic area.

(j) Nothing in paragraph (i) of this subsection (2) shall require either a carrier or a nonparticipating provider to attempt to negotiate a reimbursement rate.

(k) A nonparticipating provider may balance bill the covered person in the event that the reimbursement rate described in paragraph (i) of this subsection (2) is not equal to the provider's billed charges.

(l) The provisions of subsection (2)(i) of this section shall not apply to cases in which the covered person is so severely ill or impaired that such person is unable to move from place to place without the aid of a mechanical device; has a physical or mental condition, verified by a physician licensed to practice medicine in this state or practicing medicine pursuant to section 12-240-107 (3)(i), that substantially limits the person's ability to move from place to place; or suffers from a physical hardship such that travel would threaten the safety or welfare of the covered person as verified by the covered person's in-network treating physician. Decisions in which a carrier contests the covered person's ability to travel may be appealed pursuant to section 10-16-113 or 10-16-113.5.

(m) Notwithstanding any other provision of law, on and after September 1, 2006, for the duration of the term of a policy in effect when the insured pays the amount charged for a covered health-care service and seeks reimbursement from a carrier for such covered health-care service, the insured shall be liable for no more than the in-network copayment, coinsurance, and deductible for such service if:

(I) The insured seeks reimbursement from the carrier within twelve months after the provision of the service;

(II) Preauthorization is not required for the particular type of service provided; and

(III) A contract between the provider and the carrier was in place when the service was provided.

(2.5) (a) In the event of a material change to the carrier's network that could result in the application of subparagraph (I) of paragraph (b) of subsection (2) of this section, the carrier shall provide at least forty-five days prior to the change, in conspicuous bold-faced type, an understandable disclosure to all affected covered persons about the following:

(I) Specific network changes in the geographic area;

(II) The circumstances under which the covered person may be balance billed by nonparticipating providers; and

(III) The mechanisms to obtain the carrier's reimbursement rates to a nonparticipating provider for specific covered health-care services.

(b) In the event of a material change to the carrier's network that could result in the application of subparagraph (I) of paragraph (b) of subsection (2) of this section, the carrier shall provide notice of the change to the commissioner at least fifteen days prior to the change. Such notice may be provided by electronic means.

(c) In the event that a network of a managed care plan with out-of-network benefits that is not a health maintenance organization or a health maintenance organization with a point of service plan changes, and notice to covered persons is provided pursuant to section 10-16-705 (7), such notice shall include an understandable disclosure of:

(I) The circumstances under which the covered person may be balance billed by nonparticipating providers; and

(II) The mechanisms to obtain the carrier's reimbursement rate to nonparticipating providers for specific covered health-care services.

(d) In the event that a contract with a participating provider terminates or is terminated, notification to covered persons shall be provided pursuant to section 10-16-705 (7).

(2.7) (a) Nothing in subsection (2) or (2.5) of this section shall delay access to health-care services.

(b) Nothing in subparagraph (I) of paragraph (b) of subsection (2) of this section shall exempt a carrier from having a participating provider for all covered benefits. In any case where the carrier has no participating providers to provide a covered benefit, the provisions of paragraph (a) of subsection (2) of this section shall apply.

(3) (a) (I) In 1997, the general assembly enacted this part 7 with the express intent to incorporate consumer protections into the creation and maintenance of provider networks and to establish standards to assure the adequacy, accessibility, and quality of health-care services offered under a managed care plan.

(II) The general assembly hereby finds, determines, and declares that there are situations in which insured consumers receive health-care services, including procedures approved by their insurance carrier, in a network facility, with a primary provider that is a network provider, but in which other health-care professionals assisting with such procedures may not be in-network providers. In such situations, the consumer is not aware that the assisting providers are out-of-network providers. Further, the consumer may have little or no direct contact with the assisting health-care professionals. The division of insurance has interpreted the network adequacy provisions in this section, along with the provisions related to relationships between an insurer and a health-care provider in section 10-16-705, to hold the consumer harmless for additional charges from out-of-network providers for care rendered in a network facility. The division of insurance's interpretation of these statutes was challenged by an insurer and invalidated by a division of the Colorado court of appeals in Pacific Life & Annuity Co. v. Colorado Div. of Ins., no. 04CA2169 (slip op.) (Feb. 23, 2006).

(III) The general assembly finds, determines, and declares that the division has correctly interpreted this section to protect a covered person from the additional expense charged by a provider who is an out-of-network provider, and has properly required carriers to hold the covered person harmless. The division does not have regulatory authority over all health plans. Some consumers are enrolled in self-funded health insurance programs that are governed under the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. sec. 1001 et seq. Therefore, health-care facilities, carriers, and providers must provide consumers with disclosures about the potential impact of receiving services from an out-of-network provider or health-care facility and their rights under this section. Covered persons must have access to accurate information about their health-care bills and their payment obligations in order to enable them to make informed decisions about their health care and financial obligations.

(IV) Repealed.

(V) Therefore, the general assembly finds, determines, and declares that the purpose of Senate Bill 06-213 is to codify the interpretation of the division of insurance that holds consumers harmless for charges over and above the in-network rates for services rendered in a network facility.

(b) When a covered person receives services or treatment in accordance with plan provisions at an in-network facility, the benefit level for all covered services and treatment received through the facility shall be the in-network benefit. Covered services or treatment rendered at an in-network facility, including covered ancillary services or treatment rendered by an out-of-network provider performing the services or treatment at an in-network facility, shall be covered at no greater cost to the covered person than if the services or treatment were obtained from an in-network provider. A payment made by a covered person pursuant to this subsection

(3)(b) must be applied to the covered person's in-network deductibles and out-of-pocket maximum amounts and in the same manner as if the cost-sharing payments were made to an in-network provider at an in-network facility.

(c) Repealed.

(d) (I) If a covered person receives covered services at an in-network facility from an out-of-network provider, the carrier shall pay the out-of-network provider directly and in accordance with this subsection (3)(d). At the time of the disposition of the claim, the carrier shall advise the out-of-network provider and the covered person of any required coinsurance, deductible, or copayment.

(II) When the requirements of subsection (3)(b) of this section apply, the carrier shall reimburse the out-of-network provider directly in accordance with section 10-16-106.5 the greater of:

(A) One hundred ten percent of the carrier's median in-network rate of reimbursement for that service in the same geographic area; or

(B) The sixtieth percentile of the in-network rate of reimbursement for the same service in the same geographic area for the prior year based on commercial claims data from the all-payer health claims database created in section 25.5-1-204.

(III) Payment made by a carrier in compliance with this subsection (3)(d) is presumed to be payment in full for the services provided, except for any coinsurance, deductible, or copayment amount required to be paid by the covered person.

(IV) This subsection (3)(d) does not preclude the carrier and the out-of-network provider from voluntarily negotiating an independent reimbursement rate. If the negotiations fail, the reimbursement rate required by subsection (3)(d)(II) of this section applies.

(V) This subsection (3)(d) does not apply when a covered person has received notice and given consent as required by section 12-30-112 or 25-3-121, as applicable, to use an out-of-network provider in compliance with the federal No Surprises Act.

(VI) Repealed.

(4) When a treatment or procedure has been preauthorized by the plan, benefits cannot be retrospectively denied except for fraud and abuse. If a health carrier provides preauthorization for treatment or procedures that are not covered benefits under the plan, the carrier shall provide the benefits as authorized with no penalty to the covered person.

(4.5) (a) All claims paid by a carrier shall be considered final unless adjustments are made pursuant to this subsection (4.5).

(b) Except as otherwise provided in this subsection (4.5), adjustments to claims by the provider or the carrier shall be made within the time period set out in a contract between the provider and the carrier. Such time period shall be the same for the provider and the carrier and shall not exceed twelve months after the date of the original explanation of benefits.

(c) Except as otherwise provided in this subsection (4.5), if there is no contract between a provider and a carrier, adjustments to claims paid to providers shall be made within twelve months after the date of the original explanation of benefits. The time period for adjustments shall be the same for the provider and the carrier.

(d) (I) Adjustments to claims paid under a risk assumption or risk sharing agreement shall be made within six months after the last date of service for a period for which a settlement is being reconciled. The period for which a settlement is reconciled shall not exceed twelve months.

(II) For purposes of this paragraph (d), risk assumption and risk sharing refer to a transaction whereby the chance of loss, including the expenses for the delivery of service, with respect to the health care of a person is transferred to or shared with another entity in return for full consideration. Such transactions include, but are not limited to, full or partial capitation agreements, withholds, risk corridors, and indemnification agreements. Such transactions do not include fee-for-service arrangements, per diem payments, and diagnostic-related group payment agreements.

(e) Adjustments to claims related to coordination of benefits with federally funded health benefit plans, including medicare and medicaid, shall be made within thirty-six months after the date of service.

(f) A carrier shall not retroactively adjust a claim based on eligibility if the provider received verification of eligibility within two business days prior to the delivery of services, unless the policyholder notified the carrier of an individual's ineligibility pursuant to section 10-16-103.5 (1).

(g) (I) (A) In circumstances where a carrier determines that a premium has not been received during a grace period required by section 10-16-202 (4) for an individual policy, the carrier may report to the provider that eligibility is contingent on payment of the premium due and that eligibility cannot be confirmed for the period that the premium is outstanding. In such cases, a carrier shall comply with the requirements of section 10-16-705 (12)(b) and (12)(c).

(B) If a carrier fails to report to the provider that eligibility is contingent on payment of premium due pursuant to sub-subparagraph (A) of this subparagraph (I), the carrier shall comply with paragraph (f) of this section.

(II) In circumstances where the provider receives information from the carrier that coverage is contingent upon receipt of a premium, the requirements of section 10-16-705 (3) shall not apply and the provider may collect payment for services from the enrollee.

(III) If the provider has collected payment from the enrollee and subsequently receives payment from the carrier, the provider shall reimburse the enrollee less any applicable copayments, deductibles, or coinsurance amounts.

(h) In circumstances where a carrier determines that a premium has not been received during a grace period required by section 10-16-214 (3) for a group policy, the carrier may report to the provider that the carrier is not required to pay for health-care services rendered to an enrollee during a time in which the carrier can demonstrate that the policyholder has secured coverage with another carrier.

(i) Nothing in this subsection (4.5) shall prohibit the carrier from requiring the enrollee to reimburse the carrier for claims paid by the carrier to the provider if:

(I) A change in eligibility status has occurred making the enrollee ineligible for coverage on the date services were provided; or

(II) An enrollee has committed fraud or material misrepresentation in applying for coverage or in receiving or filing for benefits.

(j) A carrier shall not retroactively adjust a claim based on eligibility if the provision of benefits is a required policy provision pursuant to section 10-16-202 (4) or 10-16-214 (3), unless the policyholder notified the carrier of an individual's ineligibility pursuant to section 10-16-103.5 (1).

(k) Nothing in this subsection (4.5) shall be construed to require a grace period for the payment of premiums to a health maintenance organization.

(l) (I) Any adjustment made by the carrier that recovers carrier overpayments to a provider shall include a written notice to the provider and shall contain a complete and specific explanation of such adjustments and information regarding the carrier's provider dispute resolution procedures pursuant to section 10-16-705

(13). Such notice shall be made to both the provider and the enrollee to the extent that the adjustment will result in enrollee liability. Notice to the enrollee required by this paragraph (l) shall include information regarding the carrier's enrollee appeals procedure rather than the carrier's provider dispute resolution procedures.

(II) (A) For claims adjusted by the carrier due to coordination of benefits, in addition to the requirements of this paragraph (l), upon request of the provider, the carrier shall provide all available information regarding the party responsible for payment of the claim to the provider.

(B) The carrier shall provide notice to the provider with the explanation of benefits regarding the availability of the information related to the party responsible for payment of the claim.

(m) Adjustments to claims made in cases where a carrier, pursuant to section 10-1-128 (5)(a)(IV), has reported fraud or abuse committed by the provider, shall not be subject to the requirements of this subsection (4.5).

(5) A managed care plan shall not deny benefits for emergency services previously rendered, based upon the covered person's failure to provide subsequent notification in accordance with plan provisions, where the covered person's medical condition prevented timely notification.

(5.5) (a) Notwithstanding any provision of law, a carrier that provides any benefits with respect to emergency services shall cover the emergency services:

(I) Without the need for any prior authorization determination;

(II) Regardless of whether the health-care provider furnishing emergency services is a participating provider with respect to emergency services;

(III) For services provided out of network;

(IV) Without imposing any administrative requirement or limitation on coverage that is more restrictive than the requirements or limitations that apply to emergency services received from in-network providers; and

(V) At the in-network benefit level, with the same coinsurance, deductible, or copayment requirements as would apply if the emergency services were provided by an in-network provider or at an in-network facility, and at no greater cost to the covered person than if the emergency services were obtained from an in-network provider at an in-network facility. Any payment made by a covered person pursuant to this subsection (5.5)(a)(V) must be applied to the covered person's in-network deductibles and in-network out-of-pocket maximum amounts and in the same manner as if the cost-sharing payments were made to an in-network provider or an in-network facility.

(a.5) (I) A carrier shall:

(A) Cover post-stabilization services provided by an out-of-network provider or at an out-of-network facility at no greater cost to the covered person than the cost that would apply, and with the same coinsurance, deductible, or copayment requirements as the requirements that would apply, if the post-stabilization services were obtained from an in-network provider or at an in-network facility; and

(B) Reimburse the out-of-network provider for post-stabilization services in accordance with subsection (3)(d)(II) of this section and the out-of-network facility in accordance with subsection (5.5)(b) of this section.

(II) Any payment made by a covered person pursuant to subsection

(5.5)(a.5)(I) of this section must be applied to the covered person's in-network deductibles and in-network out-of-pocket maximum amounts.

(b) (I) If a covered person receives emergency services at an out-of-network facility, other than any out-of-network facility operated by the Denver health and hospital authority pursuant to article 29 of title 25, the carrier shall reimburse the out-of-network provider in accordance with subsection (3)(d)(II) of this section and reimburse the out-of-network facility directly in accordance with section 10-16-106.5 the greater of:

(A) One hundred five percent of the carrier's median in-network rate of reimbursement for that service provided in a similar facility or setting in the same geographic area; or

(B) The median in-network rate of reimbursement for the same service provided in a similar facility or setting in the same geographic area for the prior year based on claims data from the Colorado all-payer health claims database created in section 25.5-1-204.

(II) If a covered person receives emergency services at any out-of-network facility operated by the Denver health and hospital authority created in section 25-29-103, the carrier shall reimburse the out-of-network facility directly in accordance with section 10-16-106.5 the greater of:

(A) The carrier's median in-network rate of reimbursement for the same service provided in a similar facility or setting in the same geographic area;

(B) Two hundred fifty percent of the medicare reimbursement rate for the same service provided in a similar facility or setting in the same geographic area; or

(C) The median in-network rate of reimbursement for the same service provided in a similar facility or setting in the same geographic area for the prior year based on claims data from the Colorado all-payer health claims database described in section 25.5-1-204.

(III) Payment made by a carrier in compliance with this subsection (5.5)(b) is presumed to be payment in full for the services provided, except for any coinsurance, deductible, or copayment amount required to be paid by the covered person.

(c) This subsection (5.5) does not preclude the carrier and the out-of-network facility and the carrier and the provider from voluntarily negotiating an independent reimbursement rate. If the negotiations fail, the reimbursement rate required by subsection (5.5)(b) of this section applies.

(d) (I) Subsections (5.5)(a), (5.5)(b), and (5.5)(c) of this section do not apply to service agencies, as defined in section 25-3.5-103 (11.5), providing ambulance services, as defined in section 25-3.5-103 (3).

(II) (A) The commissioner shall promulgate rules to identify and implement a payment methodology that applies to service agencies described in subsection

(5.5)(d)(I) of this section, except for service agencies that are publicly funded fire agencies.

(B) The commissioner shall make the payment methodology available to the public on the division's website. The rules must be equitable to service agencies and carriers; hold consumers harmless except for any applicable coinsurance, deductible, or copayment amounts; and be based on a cost-based model that includes direct payment to service agencies as described in subsection (5.5)(d)(I) of this section.

(C) The division may contract with a neutral third-party that has no financial interest in providers, emergency service providers, or carriers to conduct the analysis to identify and implement the payment methodology.

(e) Repealed.

(6) The carrier shall establish and maintain adequate arrangements to ensure reasonable proximity of participating providers to covered persons and shall only market a network plan in a geographic area where network providers are accessible without unreasonable delay. In determining whether a health carrier has complied with this subsection (6), consideration shall be given to the relative availability of health-care providers in the service area under consideration.

(7) A carrier shall monitor, on an ongoing basis, the capacity and legal authority of the participating providers and facilities with which it contracts to furnish all covered benefits to covered persons.

(8) No managed care plan shall deny or restrict in-network covered benefits to a covered person solely because the covered person obtained treatment outside the network. This protection shall be disclosed in writing to the covered person. Nothing in this subsection (8) shall be construed to require a managed care plan to pay for any benefit obtained outside the plan's network unless the contract or certificate provides for that out-of-network benefit.

(9) Beginning January 1, 1998, a carrier shall maintain and make available upon request of the commissioner, the executive director of the department of public health and environment, or the executive director of the department of health care policy and financing, in a manner and form that reflects the requirements specified in paragraphs (a) to (k) of this subsection (9), an access plan for each managed care network that the carrier offers in this state. The carrier shall make the access plans, absent confidential information as specified in section 24-72-204 (3), C.R.S., available on its business premises and shall provide them to any interested party upon request. In addition, all health benefit plans and marketing materials shall clearly disclose the existence and availability of the access plan. All rights and responsibilities of the covered person under the health benefit plan, however, shall be included in the contract provisions, regardless of whether or not such provisions are also specified in the access plan. The carrier shall prepare an access plan prior to offering a new managed care network and shall update an existing access plan whenever the carrier makes any material change to an existing managed care network, but not less than annually. The access plan of a carrier offering a managed care plan shall demonstrate the following:

(a) An adequate number of accessible acute care hospital services, within a reasonable distance or travel time, or both;

(a.3) An adequate number of accessible primary care providers within a reasonable distance or travel time, or both;

(a.5) An adequate number of accessible specialists and sub-specialists within a reasonable distance or travel time, or both, or who may be available through the use of telehealth;

(a.7) Geographic accessibility, which in some circumstances may require the crossing of county or state lines;

(a.9) If the covered person has a pharmacy benefit, an adequate number of pharmacy providers within a reasonable distance, travel time, delivery time, or all three. Nothing in this paragraph (a.9) shall preclude the use of a retail or mail-order pharmacy provider.

(b) A carrier offering a managed care plan shall maintain procedures for making referrals within and outside its network that, at a minimum, must include the following:

(I) A comprehensive listing, made available to covered persons and primary care providers, of the plan's network participating providers and facilities;

(II) (A) A provision that referral options cannot be restricted to less than all providers in the network that are qualified to provide covered specialty services; except that a health maintenance organization may offer variable deductibles and copayments to encourage the selection of certain providers.

(B) A health maintenance organization that offers variable deductibles and copayments shall provide adequate and clear disclosure, as required by law, of variable deductibles and copayments to enrollees, and the amount of any deductible or copayment shall be reflected on the benefit card provided to the enrollees.

(III) Timely referrals for access to specialty care;

(IV) A process for expediting the referral process when indicated by medical condition; and

(V) (A) A provision that referrals approved by the plan cannot be retrospectively denied except for fraud or abuse;

(B) A provision that referrals approved by the plan cannot be changed after the preauthorization is provided unless there is evidence of fraud or abuse.

(c) The carrier's process for monitoring and assuring on an ongoing basis the sufficiency of the network to meet the health-care needs of populations that enroll in managed care plans;

(d) The carrier's quality assurance standards, adequate to identify, evaluate, and remedy problems relating to access, continuity, and quality of care;

(e) The carrier's efforts to address the needs of covered persons with limited English proficiency and illiteracy, with diverse cultural and ethnic backgrounds, and with physical and mental disabilities;

(f) The carrier's methods for determining the health-care needs of covered persons, tracking and assessing clinical outcomes from network services, and evaluating consumer satisfaction with services provided;

(g) The carrier's method for informing covered persons of the plan's services and features, including but not limited to the following:

(I) The plan's grievance procedures, which shall be in conformance with division rules concerning prompt investigation of health claims involving utilization review and grievance procedures;

(II) The extent to which specialty medical services, including physical therapy, occupational therapy, and rehabilitation services are available;

(III) The plan's process for choosing and changing network providers; and

(IV) The plan's procedures for providing and approving emergency and medical care;

(h) The carrier's system for ensuring the coordination and continuity of care for covered persons referred to specialty providers;

(i) The carrier's process for enabling covered persons to change primary care professionals;

(j) The carrier's proposed plan for providing continuity of care in the event of contract termination between the carrier and any of its participating providers or in the event of the carrier's insolvency or other inability to continue operations. The description shall explain how covered persons will be notified of the contract termination or the carrier's insolvency or other cessation of operations and transferred to other providers in a timely manner.

(k) Any other information required by the commissioner to determine compliance with the provisions of this part 7.

(10) (a) In determining the reasonableness of travel time and distances for the purposes of this section, consideration shall be given to differences in travel times for rural areas as opposed to urban areas, the relative availability of health-care providers, the location where the majority of people in the area access nonemergency services, and the managed care plan's good faith efforts to contract with local providers at reasonable rates.

(b) The commissioner, upon the commissioner's authority or upon review of one or more complaints, may require the carrier to demonstrate the adequacy of the network's plan as specified in subsection (9) of this section.

(c) The commissioner may utilize the remedies outlined in section 10-3-1108 for failing to provide proper disclosures to covered persons pursuant to subsection

(2) or (2.5) of this section.

(11) The division of insurance, in cooperation with the chief medical officer for the state, shall evaluate a carrier's network adequacy plan concerning the use of telehealth for providers who are specialists and sub-specialists for rural areas. The division and chief medical officer shall conduct the review in a timely fashion so as not to delay access to health-care services.

(12) (a) On and after January 1, 2020, carriers shall develop and provide disclosures to covered persons about the potential effects of receiving emergency or nonemergency services from an out-of-network provider or at an out-of-network facility. The disclosures must, at a minimum, comply with the federal No Surprises Act and the rules adopted under subsection (12)(b) of this section.

(b) The commissioner, in consultation with the state board of health created in section 25-1-103 and the applicable regulators of health-care occupations and professions, shall adopt rules to specify the list of the ancillary services for which an out-of-network provider or out-of-network facility must not balance bill a covered person and the disclosure requirements under this subsection (12).

(c) Receipt of the disclosures required by this subsection (12) does not waive a covered person's protections under subsection (3) or (5.5) of this section or the right to benefits under the health benefit plan at the in-network benefit level for all covered services and treatment received.

(13) (a) When a carrier makes a payment to a provider or a health-care facility pursuant to subsection (3)(d) or (5.5)(b) of this section, the provider or the facility may request, and the commissioner shall collect, data from the carrier to evaluate the carrier's compliance in paying the highest rate required. The information requested may include the methodology for determining the carrier's median in-network rate or reimbursement for each service in the same geographic area.

(b) Repealed.

(14) Repealed.

(15) (a) (I) If a provider or a health-care facility believes that a payment made pursuant to subsection (3) or (5.5) of this section or section 12-30-113 or a health-care facility believes that a payment made pursuant to subsection (5.5) of this section or section 25-3-122 (3) was not sufficient given the complexity and circumstances of the services provided, the provider or the health-care facility may initiate arbitration by filing a request for arbitration with the commissioner and the carrier. A provider or health-care facility must submit a request for the arbitration of a claim within ninety days after the receipt of payment for that claim.

(II) Prior to arbitration under subsection (15)(a)(I) of this section, if requested by the carrier and the provider or health-care facility, the commissioner may arrange an informal settlement teleconference to be held within thirty days after the request for arbitration. The parties shall notify the commissioner of the results of the settlement conference.

(III) Upon receipt of notice that the settlement teleconference was unsuccessful, the commissioner shall appoint an arbitrator and notify the parties of the arbitration.

(b) The commissioner shall promulgate rules to implement an arbitration process that establishes a standard arbitration form and includes the selection of an arbitrator from a list of qualified arbitrators developed pursuant to the rules. Qualified arbitrators must be independent; not be affiliated with a carrier, health-care facility, or provider, or any professional association of carriers, health-care facilities, or providers; not have a personal, professional, or financial conflict with any parties to the arbitration; and have experience in health-care billing and reimbursement rates.

(c) Within thirty days after the commissioner appoints an arbitrator and notifies the parties of the arbitration, both parties shall submit to the arbitrator, in writing, each party's final offer and each party's argument. The arbitrator shall pick one of the two amounts submitted by the parties as the arbitrator's final and binding decision. The decision must be in writing and made within forty-five days after the arbitrator's appointment. In making the decision, the arbitrator shall consider the circumstances and complexity of the particular case, including the following areas:

(I) The provider's level of training, education, experience, and specialization or subspecialization; and

(II) The previously contracted rate, if the provider had a contract with the carrier that was terminated or expired within one year prior to the dispute.

(d) If the arbitrator's decision made pursuant to subsection (15)(c) of this section requires additional payment by the carrier above the amount paid, the carrier shall pay the provider in accordance with section 10-16-106.5. A carrier shall not recalculate a covered person's cost-sharing amount based on an additional payment required or made as a result of an arbitration decision.

(e) The party whose final offer amount was not selected by the arbitrator shall pay the arbitrator's expenses and fees. If the parties reach a settlement after an arbitrator is appointed but before the arbitrator makes a final decision, the parties shall split the costs of the arbitration equally unless otherwise agreed by the parties.

(16) Repealed.

(17) The commissioner shall post on the division's website information on the state and federal agencies that a covered person may contact if a provider, facility, or carrier violates this section.

(18) The commissioner may adopt rules to implement this section, including rules necessary to implement the requirements of the federal No Surprises Act.

(19) As used in this section:

(a) Ancillary services means:

(I) Diagnostic services, including radiology and laboratory services, unless excluded by rule of the secretary of the United States department of health and human services pursuant to 42 U.S.C. sec. 300gg-132 (b)(3);

(II) Items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether or not provided by a physician or nonphysician provider, unless excluded by rule of the secretary of the United States department of health and human services pursuant to section 2799B-2 (b)(3) of the federal No Surprises Act;

(III) Items and services provided by assistant surgeons, hospitalists, and intensivists, unless excluded by rule of the secretary of the United States department of health and human services pursuant to section 2799B-2 (b)(3) of the federal No Surprises Act;

(IV) Items and services provided by an out-of-network provider if there is no in-network provider who can furnish the needed services at the facility; and

(V) Any other items and services provided by specialty providers as established by rule of the commissioner.

(b) Applicable regulators of health-care occupations and professions means the:

(I) Colorado state board of chiropractic examiners created in section 12-215-104;

(II) Colorado dental board created in section 12-220-105;

(III) Colorado medical board created in section 12-240-105;

(IV) State board of psychologist examiners created in section 12-245-302;

(V) State board of social work examiners created in section 12-245-402;

(VI) State board of marriage and family therapist examiners created in section 12-245-502;

(VII) State board of licensed professional counselor examiners created in section 12-245-602;

(VIII) State board of unlicensed psychotherapists created in section 12-245-702;

(IX) State board of addiction counselor examiners created in section 12-245-802;

(X) State board of nursing created in section 12-255-105;

(XI) Board of examiners of nursing home administrators created in section 12-265-106;

(XII) State board of optometry created in section 12-275-107;

(XIII) State board of pharmacy created in section 12-280-104;

(XIV) State physical therapy board created in section 12-285-105;

(XV) Colorado podiatry board created in section 12-290-105; and

(XVI) The director of the division of professions and occupations in the department of regulatory agencies.

(c) Balance bill means:

(I) The amount that an out-of-network provider may charge a covered person for the provision of health-care services, which amount equals the difference between the amount paid by the carrier for the health-care services and the amount of the out-of-network provider's billed charge for the health-care services; and

(II) The act of a nonparticipating provider charging a covered person the difference between the billed amount and the amount the carrier paid the provider.

(d) Emergency medical condition means a medical condition that manifests itself by acute symptoms of sufficient severity, including severe pain, that a prudent layperson with an average knowledge of health and medicine could reasonably expect, in the absence of immediate medical attention, to result in:

(I) Serious jeopardy to the health of the individual or, with respect to a pregnant woman, the health of the woman or unborn child;

(II) Serious impairment to bodily functions; or

(III) Serious dysfunction of any bodily organ or part.

(e) (I) Emergency services, with respect to an emergency medical condition, means:

(A) A medical screening examination that is within the capability of the emergency department of a hospital or a freestanding emergency department, as applicable, including ancillary services routinely available to the emergency department to evaluate the emergency medical condition; and

(B) Within the capabilities of the staff and facilities available at the hospital, regardless of the department in which further examination or treatment is furnished, or the freestanding emergency department, as applicable, further medical examination and treatment as are required to stabilize the patient to ensure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the patient from a facility.

(II) For a covered person who is provided services described in subsections

(19)(e)(I)(A) and (19)(e)(I)(B) of this section with respect to an emergency medical condition, unless each of the conditions in subsection (19)(e)(III) of this section are met, the term emergency services includes services that are:

(A) Covered under the health benefit plan; and

(B) Provided by a nonparticipating provider or nonparticipating emergency facility, regardless of the department or the facility in which the items or services are provided, after the covered person is stabilized and as part of the outpatient observation or inpatient or outpatient stay, with respect to the emergency visit in which the services described in subsection (19)(e)(I) of this section are provided.

(III) For the purposes of subsection (19)(e)(II) of this section, the conditions described in this subsection (19)(e)(III), with respect to a covered individual who is stabilized and furnished additional items and services described in subsection

(19)(e)(II) of this section after the stabilization by a provider or facility are the following:

(A) The out-of-network provider or out-of-network facility determines the covered person is able to travel using nonmedical transportation or nonemergency medical transportation;

(B) The out-of-network provider or out-of-network facility has provided the covered person with notice and obtained consent as required by section 12-30-112 or 25-3-121, as applicable;

(C) The covered person is in a condition to receive the notice and consent described in section 12-30-112 or 25-3-121 and to provide informed consent; and

(D) The out-of-network provider or out-of-network facility is in compliance with, at a minimum, other requirements established in 42 U.S.C. sec. 300gg-111 and any federal regulations adopted pursuant to 42 U.S.C. sec. 300gg-111.

(f) Federal 'No Surprises Act' means the federal No Surprises Act, Pub.L. 116-260, as amended.

(g) Freestanding emergency department has the same meaning as set forth in section 25-1.5-114 (5).

(h) Geographic area means a specific area in this state as established by the commissioner by rule.

(i) In-network facility means a participating provider that is a health-care facility.

(j) In-network provider means a participating provider who is an individual.

(k) Medicare reimbursement rate means the reimbursement rate for a particular health-care service provided under the Health Insurance for the Aged Act, Title XVIII of the federal Social Security Act, 42 U.S.C. sec. 1395 et seq., as amended.

(l) Negotiated rate means the rate mutually agreed upon between the carrier and the provider in a specific instance.

(m) Stabilized means the condition of a patient in which, within reasonable medical probability, no material deterioration of the condition is likely to result from or occur during the transfer of the patient from one facility or department to another.

(n) Usual, customary, and reasonable rate means a rate established pursuant to an appropriate methodology that is based on generally accepted industry standards and practices.