N.J. Admin. Code § 11:24B-5.2

Current through Register Vol. 56, No. 21, November 4, 2024

Section 11:24B-5.2 - General provisions

(a) All provider agreement forms shall comply with the requirements set forth at N.J.A.C. 11:24C-4 and shall contain:

1. A provision specifying that any sections of the contract that conflict with State or Federal law are effectively amended to conform with the requirements of the State or Federal law;

2. A provision specifying the compensation methodology.

i. The provision shall not provide financial incentives to the provider for the withholding of covered health care services that are medically necessary, but this shall not prohibit or limit the use of capitated payment arrangements between an ODS and a provider.

ii. To the extent that some portion of the provider compensation is tied to the occurrence of a pre-determined event, or the non-occurrence of a pre-determined event, the event shall be clearly specified, and the ODS shall include in its contracts a right of each provider to receive a periodic accounting of the funds held, which shall be no less frequently than annually.

iii. The provision shall specify that a provider may appeal a decision denying the provider additional compensation to which the provider believes he or she is entitled under the terms of the provider agreement.

iv. Notwithstanding (a)2i above, capitation shall not be the sole method of reimbursement to providers that primarily provide supplies (for instance, prescription drugs or durable medical equipment) rather than services.

v. In no event shall the provision indicate that the compensation terms will be determined subsequent to the execution of the contract between the ODS and the provider.

3. A provision specifying that the provider's activities and records relevant to the provision of health care services may be monitored from time to time either by the ODS, the carrier, or another contractor acting on behalf of the carrier in order for the ODS or the carrier to perform quality assurance and continuous quality improvement functions;

4. A provision explaining the quality assurance program with which the provider must comply.

i. The provision shall specify whether the quality assurance program is that of the ODS and is being adopted by the carrier, is that of the carrier and is being adopted by the ODS, or is that of a separate entity and is being adopted by both the carrier and the ODS with which the provider is contracted.

ii. The provision shall specify the entity that is responsible for the day-to-day administration of the quality assurance program.

iii. The provision shall specify the entity with which the provider may lodge complaints regarding the quality assurance program, and otherwise provide information on how provider feedback regarding the operations of the ODS and carrier operations will be elicited;

5. A provision explaining the utilization management program with which the provider must comply.

i. The provision shall specify whether the utilization management program is that of the ODS and is being adopted by the carrier, is that of the carrier and is being adopted by the ODS, or is that of a separate entity and is being adopted by both the carrier and the ODS with which the provider is contracted.

ii. The provision shall explain what entity is responsible for the day-to-day operation of the utilization management program, how the provider is to comply with the UM standards, including the method for obtaining a UM decision and appealing UM decisions, and the right of the provider to have the name and telephone number of the physician, or dentist if appropriate to the services at issue, denying or limiting an admission, service, procedure or length of stay.

iii. The provision shall explain how providers may receive information regarding the UM protocols and any parameters that may be placed on the use of one or more protocols.

iv. The provision shall explain how participating providers may review and provide comment on the applicable protocols for the provider's practice area.

v. The provision shall explain that the provider has the right to rely upon the written or oral authorization of a service if made by the carrier or the entity identified as being responsible for the day-to-day operations of the utilization management program, and that the services will not be retroactively denied as not medically necessary except in cases where there was material misrepresentation of the facts to the carrier or the entity identified as being responsible for the day-to-day operations of the utilization management program, or fraud;

6. A provision explaining the rights and obligations of the provider when appealing a UM decision on behalf of a covered person, including the right to receive a written notice of the UM determination.

i. The provision shall be clear as to whether the provider must obtain consent of the covered person in order for the appeal to be reviewed in accordance with the Stage 1 and Stage 2 process as set forth at N.J.A.C. 11:24-8 and 11:24A-3.5, or whether failure to obtain consent of the covered person results in review of the appeal using a separate complaint or provider grievance process.

ii. In the event that an appeal instituted by a provider on behalf of a covered person will be entertained as a member utilization management appeal without the covered person's consent, the provision shall explain that such appeals will not be eligible for the Independent Health Care Appeals Program, established pursuant to 26:2S-11, until the covered person's specific consent to the appeal is obtained.

iii. The provision shall not limit the right of the provider to submit an appeal on behalf of the covered person to situations in which the covered person may be financially liable for the costs of the health care services;

7. A provision specifying that the contract is governed by New Jersey law;

8. A provision specifying the term of the contract.

i. Every provider agreement shall specify the date the contract is executed, which shall not be prior to the date that the ODS is first certified to operate in New Jersey, except as 11:24B-1.3 applies.

ii. The anniversary date of the contract shall be the execution date of the contract, if no anniversary date is otherwise specified;

9. A provision specifying termination and renewal rights and obligations of the parties with respect to termination and renewal;

10. A provision prohibiting providers from billing or otherwise pursuing payment from a carrier's covered person for the costs of services or supplies rendered in-network that are covered, or for which benefits are payable, under the covered person's health benefits plan, except for copayment, coinsurance or deductible amounts set forth in the health benefits plan, regardless of whether the provider agrees with the amount paid or to be paid, for the services or supplies rendered;

11. A provision establishing the obligation of the provider to be credentialed and otherwise eligible to participate in various programs (for example, Medicare or Medicaid), as appropriate.

i. The provision shall set forth the time periods for credentialing and recredentialing of providers, and the obligation of the provider to cooperate with the credentialing process;

12. A provision setting forth the provider's obligation to maintain malpractice insurance in the amount of not less than $ 1,000,000 per occurrence and $ 3,000,000 in the aggregate per year.

i. The provision may require that the amount of malpractice insurance must be sufficient for anticipated risk, so long as the minimum amounts of $ 1,000,000/$ 3,000,000 are specified;

13. A provision setting forth the health care services and supplies that the provider is to render to covered persons;

14. A provision specifying that providers shall have the right and obligation to communicate openly with all covered persons regarding diagnostic tests and treatment options;

15. A provision specifying that providers shall not be terminated or otherwise penalized because of complaints or appeals that the provider files on his or her own behalf, or on behalf of a covered person, or for otherwise acting as an advocate for covered persons in seeking appropriate, medically necessary health care services covered under the covered person's health benefits plan;

16. A provision stating that the provider shall not discriminate in his or her treatment of a carrier's covered persons.

i. The provision may permit providers to limit the total number of a carrier's covered persons that the provider treats, so long as the standards for the limitations do not result in unfair discrimination and are set forth clearly in the provider agreement.

ii. The provision may permit the provider to limit the carrier's products for which the provider will be considered a participating provider, so long as the standards for the limitations are set forth clearly in the provider agreement;

17. A provision setting forth the procedures for submitting and handling of claims, including any penalties that may result in the event that claims are not submitted timely, the standards for determining whether submission of a claim has been timely, and the process for providers to dispute the handling or payment of claims.

i. Provisions addressing claims handling shall be consistent with applicable law.

ii. The provision shall specify how interest for late payment of claims shall be remitted to the provider, but in no instance shall the provision obligate the provider to request payment of the interest before the interest will be paid;

18. A provision explaining how the provider may submit and seek resolution of complaints and grievances, separate and apart from submitting complaints and grievances on behalf of a covered person, and complaints addressing compensation and claims issues.

i. The provision shall specify the time frames for resolving complaints and grievances, which shall not exceed 30 days following receipt of the complaint or grievance.

ii. The provision shall explain the right of the provider to submit complaints and grievances to DOBI or DHS, depending upon the issue involved, if not satisfied with the resolution of the complaint or grievance through the internal provider complaint mechanism; and

19. A provision setting forth the confidentiality requirements that may apply to various records, including medical records, that the parties may maintain pursuant to their contractual relationship.

(b) Every provider agreement form may contain:

1. A provision specifying that the provider and the ODS are independent contractors as permitted by statute, regulation and/or common law.

i. The provision may specify that the carrier and ODS have no employment, partnership, joint venture, or other explicit business relationship, but shall not deny the existence of an agency relationship between the ODS and the provider;

2. A provision specifying that the provider and any carriers with which the ODS may contract are independent contractors as permitted by statute, regulation and/or common law.

i. The provision may specify that the provider and carrier(s) have no employment, partnership, joint venture or other explicit business relationship, but shall not deny the existence of an agency relationship between the provider and the carrier; and

3. Other provisions not specifically prohibited in accordance with this subchapter or other law.

(c) No provider agreement form shall contain:

1. A provision that establishes any limitation on the time period during which a provider may bring suit that is less than that set forth under the statute of limitation established by law;

2. A provision that establishes a unilateral right of the ODS, acting in its own accord, or at the request of a carrier, to amend the contract, or that otherwise requires a provider to abide by the amended terms of the contract during either a notice of termination period or a continuity of care period in the event that the provider elects to terminate the contract rather than accept the amendment.

i. The provision may allow for unilateral amendment if the amendment is required by State or Federal law;

3. A provision that states or can be interpreted to mean that the provider may not appeal a utilization management determination on behalf of a covered person with the covered person's specific consent, or otherwise limits the right of the provider to dispute a utilization management determination, except that reasonable procedural standards may be specified, including a time frame during which an appeal may be submitted;

4. A provision stating that the provider may not look to the carrier for payment for services or supplies rendered to a carrier's covered person in the event of default or bankruptcy of the ODS.

i. There may be a provision that specifies a process that the provider must follow in order to obtain payment from the carrier in the event of default or bankruptcy of the ODS, including subrogation or assignment of the provider's right to submit any claim against the assets of the ODS to the carrier following satisfaction of the claim by the carrier.

ii. There may be a provision that specifies that the carrier shall only be liable to the provider in accordance with the terms of the provider agreement between the provider and the ODS.

iii. This prohibition shall not apply to a provider agreement of a LODS if the Department is permitting the carrier to take a credit for ceding reserve liability to the LODS;

5. A provision that states or can be interpreted to mean that the provider can not dispute a reassignment or bundling of codes on a claim, or that the provider must accept any or all adjustments to a claim as payment in full when the adjustment is made as a result of the quality assurance, continuous quality improvement, utilization management, provider incentive, or similar such program;

6. A provision that states that payment to a provider with respect to a medically necessary health care service or supply will be denied if the service was not pre-certified or pre-authorized.

i. There may be a provision that allows payment to be reduced up to, but not exceeding, 50 percent of what would otherwise have been paid had pre-certification or pre-authorization been obtained for a medically necessary service, but only if the actual percentage reduction is set forth in the provider agreement;

7. A provision that states or may be interpreted to mean that a covered person lacks the ability to dispute whether a service is a covered service or whether the person was a covered person of a carrier at the time that the service was rendered;

8. A provision that requires the provider to assure that it never charges the ODS or carrier a rate that is greater than the least amount charged to another entity with which the provider contracts for similar services, or any other "most-favored-nation" type of clause;

9. A provision that requires a provider to be responsible for the actions of a non-participating provider; or

10. A provision that imposes obligations or responsibilities upon a provider that requires the provider to violate statutes or rules governing his or her license, or otherwise violate laws governing the confidentiality of patient information, in order to comply with the terms of the contract.

i. In addition, the contract shall not contain a provision that is inconsistent with laws setting forth procedures for determining whether and how specific types of confidential information may be released, including 45:14B-31 et seq.

(d) Details of contract provisions more appropriately set forth in provider manuals may be set forth accordingly, so long as the contract includes statements that the information is set forth in the provider manuals, the provider manuals are readily available to health care providers, and the provider manuals are submitted to the Department for review.

N.J. Admin. Code § 11:24B-5.2

Amended by R.2009 d.243, effective 8/3/2009.
See: 40 N.J.R. 6529(a), 41 N.J.R. 2965(a).
In (a)19i, substituted "applicable law" for "P.L. 1999, c. 154 (Health Information Technology Act) as well as P.L. 1999, c. 155, and rules promulgated pursuant thereto, including N.J.A.C. 11:22-1".
Amended by R.2013 d.048, effective 3/18/2013 (operative January 1, 2014).
See: 44 N.J.R. 376(a), 45 N.J.R. 651(a).
Rewrote (a).