(a) The Commissioner may revoke or refuse to renew a license of a self‑insurer for the failure of any self‑insurer to comply with all applicable laws, rules, regulations, orders, and requirements of the Commonwealth.
(b) The Commissioner may revoke or refuse to renew the approval of the utilization review agent for failure to comply with all applicable laws, rules, regulations, orders, and requirements of the Commonwealth.
(2) The Department of Industrial Accidents will gather data on compliance with the treatment guidelines through reports from insurers and utilization review agents. If a provider's care is demonstrated to be statistically significantly outside a particular guideline, the provider will be informed of this by the Department and educational material regarding the guideline will be transmitted to the provider. On a periodic basis, the provider's utilization patterns will then be reassessed. If the provider remains statistically significantly outside the guideline, the provider will be warned by the Department, educational materials will again be transmitted, and a clinical evaluation performed. If the provider's care is found to remain significantly and frequently outside the guideline, the matter will be transferred to the Commissioner. At the discretion of the Commissioner, the matter may be referred to the Health Care Services Board which may then refer the matter to the appropriate Board of Registration.
(3) If the Department finds that the care provided to injured employees through an insurer is more frequently deficient than that provided to other employees in receipt of workers' compensation, the Department will address this issue with the insurer in a manner similar to the one specified in 452 CMR 6.07(2), with the exception that any referral by the Health Care Services Board will be to the Division of Insurance instead of a Board of Registration.
(4) The Department shall monitor the utilization review techniques used, and determinations made, by utilization review agents. If the Commissioner receives a complaint from a practitioner, employer, or employee, or has reason to believe that a utilization review agent has been or is engaged in conduct that violates these regulations, the Commissioner shall notify the utilization review agent in writing of the alleged violation. The utilization review agent shall have 20 days from the date the notice is received to respond to the alleged violation. On or after the 20 th day, the Commissioner shall render a finding after reviewing all documents submitted by the parties. The Commissioner may also schedule a hearing. If the Commissioner determines that the utilization review agent has violated or is in violation of any law, rule, regulation, order, or requirement, the Commissioner may issue an order requiring the insurer and/or utilization review agent to cease and desist from engaging in the violation(s). The Commissioner may also suspend or revoke the agent's approval to conduct utilization review and may assess a fine.
If the utilization review agent requests a hearing regarding the findings of the Commissioner, the request must be made in writing within 20 days from receipt of the findings. Upon receipt of the request, the Commissioner shall schedule a hearing to be conducted pursuant to M.G.L. c. 30A.
If the Commissioner renders a finding that the utilization agent has violated any law, rule, regulation, order, or requirement, the utilization review agent must inform the adjuster handling the injured employee's claim.
(5) A Cease and Desist order may include:
(a) a summary of the violation(s);
(b) a summary of the facts giving rise to the violation(s);
(c) the penalty that the Commissioner intends to apply; and
(d) information pertaining to the rights and obligations of the utilization review agent; as well as the procedure for the agent to file a written response or request a hearing.
(6) Non‑compliance Categories include but are not limited to:
(a) Failure of an insurer/self‑insurer to conduct a proper utilization review in accordance with 452 CMR 6.00 et seq.
(b) Failure of the utilization review agent to render a written determination to both the injured employee and the ordering provider within the proper time constraints.
(c) Failure of the utilization review agent to ensure an appeal level review is conducted by a same‑ school practitioner.
(d) Failure of the utilization review agent to issue a written introductory letter within the required time period.
(e) Failure of the utilization review agent to use the diagnosis and/or ICD code selected by the ordering provider when determining medical necessity and appropriateness of care.
(f) Failure of the utilization review agent to cite the correct, research based treatment guideline when rendering a determination.
(g) Failure of the utilization review agent to document clinical rationale to support the guideline.
(h) Failure of the utilization review agent to utilize only licensed personnel to determine medical necessity and appropriateness for all health care services under review.
(i) Failure of the utilization review agent to maintain all required records in the form and manner prescribed by the OHP.
(j) Failure to inform the OHP of any material change to the approved utilization review application within 30 days of said change.
(k) Failure to adhere to the quality assurance and quality control measures set forth in the utilization review application.
(l) Failure to maintain hours of operation between 9:00 A.M. and 5:00 P.M. EST on each business day, and return after hour calls within one business day.
(m) Failure to inform the OHP of each site where utilization review is being conducted for Massachusetts claims.
(n) Failure of the utilization review agent to comply with audits.
(o) Failure of the medical director and school to school reviewers to maintain an active clinical practice of at least eight hours per week.
(p) Failure to conduct initial reviews at the approved utilization review site.
(7) Quality Assessment Audit Review Procedures.
(a) The OHP monitoring of the quality of care rendered to injured employees shall include, but not be limited to: onsite audits; desk audits; and review of patient satisfaction surveys, complaints, and statistical data provided by utilization review agents, insurers, and self‑insurers. Desk audits shall consist of review of case records selected by the OHP. The OHP may also monitor the performance of providers reimbursed by insurers.
(b) Approved utilization review agents shall comply with all requests for onsite and desk audits for continued utilization review approval.
(c) Utilization review agents are required to pay all reasonable travel expenses for each onsite audit of the OHP representatives.
(d) The OHP will determine the type of audit to be conducted (onsite or desk). The utilization review agent will be notified prior to the scheduled audit date. The agent shall submit a list of all utilization reviews conducted for the period specified by OHP. The OHP will notify the agent which files must be made available for the audit. The agent will make each sample record available, in hard copy, for review on the audit date.
(e) If an agent meets the 85% compliance rating score for two consecutive quality assessment audits, the agent's audit schedule may be changed from yearly to every two years. However, if at any time the OHP has reason to believe that the agent is not in full compliance with the laws, rules, regulations, orders, and requirements, by way of complaint or any other means, the agent's approval status may be reviewed and an immediate audit may conducted.
(f) If the utilization review agent scores less than 85%, the agent will be placed on a probationary approval status for a period of six months and may be fined up to $300.00. At the end of six months, and after interim audits, the utilization review agent will be informed as to whether or not the agent meets the 85% compliance rate and is approved to continue to conduct utilization review in Massachusetts. If the agent fails to meet the 85% compliance rate, the Commissioner may schedule a hearing to determine whether or not the utilization review agent's approval to conduct utilization review in the Commonwealth should be revoked.
(g) The Office of Health Policy, at the direction of the Commissioner, may implement internal OHP policies and procedures at any time to ensure and improve the quality of the utilization review program.
(a) Failure to comply with all applicable rules, regulations, orders and requirements of the OHP may result in a fine of up to $300.00 per violation.
(b) Should the utilization review agent violate a cease and desist order within one year from the issuance date, additional fines may be assessed based on the violation. Penalties shall be additional fines of up to $300.00 per occurrence, or may result in the Commissioner revoking the utilization review agent's continued approval.