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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 94 TO TITLE 38, SO AS TO PROVIDE FOR THE PROMPT PAYMENT OF HEALTH CARE PROVIDERS BY AN INSURER, AND TO PROVIDE CIVIL PENALTIES, AND BY ADDING SECTION 38-71-225 SO AS TO PROVIDE THAT A HEALTH INSURER MAY NOT DENY AN INSURANCE CLAIM FOR HEALTH CARE SERVICE TO ANY PROVIDER OF HEALTH CARE SERVICES PROVIDED ON THE SAME DAY UNDER CERTAIN CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 38 of the 1976 Code is amended by adding:
Section 38-94-10. The provisions of this chapter apply to all insurers, insurance companies, provider networks, provider organizations, managed care organizations, managed care plans, health maintenance organizations, third party payors, payment administrators, and other agents, contractors and subcontractors in the administration of programs of health, hospital, dental, and medical insurance. The provisions of this chapter are remedial and must be liberally construed to effectuate their purpose and apply in addition to other remedies available at law or equity.
Section 38-94-20. As used in this chapter:
(1)(a) A 'clean claim' means:
(i) a nonelectronic claim by a provider, other than an institutional provider, if the claim is submitted using the Centers for Medicare and Medicaid Services Form 1500 or, if promulgated by the director by regulation, a successor to that form developed by the National Uniform Claim Committee or its successor. An electronic claim by a provider, other than an institutional provider, is a 'clean claim' if the claim is submitted using the Professional 837 (ASC X12N 837) format or, if promulgated by the director by regulation, a successor to that format adopted by the Centers for Medicare and Medicaid Services or its successor;
(ii) a nonelectronic claim by an institutional provider if the claim is submitted using the Centers for Medicare and Medicaid Services Form UB-92 or, if promulgated by the director by regulation, a successor to that form developed by the National Uniform Billing Committee or its successor. An electronic claim by an institutional provider is a 'clean claim' if the claim is submitted using the Institutional 837 (ASC X12N 837) format or, if promulgated by the director by regulation, a successor to that format adopted by the Centers for Medicare and Medicaid Services or its successor.
(b) The director may promulgate regulations that specify the information that must be entered into the appropriate fields on the applicable claim form for a claim to be a clean claim.
(c) The director may not require any data element for an electronic claim that is not required in an electronic transaction set needed to comply with federal law.
(d) An insurer and a provider may agree by contract to use fewer data elements than are required in an electronic transaction set needed to comply with federal law.
(e) An otherwise clean claim submitted by a provider that includes additional fields, data elements, attachments, or other information not required by this section is considered to be a clean claim for the purposes of this chapter.
(f) Except as provided by subitem (d) of this item, the provisions of this section may not be waived, voided, or nullified by contract.
(2) 'Health care services' means services included in furnishing an individual medical or dental care or hospitalization, or services incident to the furnishing of medical or dental care or hospitalization, and other services to prevent, alleviate, cure, or heal human illness, injury, or physical disability.
(3) 'Health maintenance organization' means an entity, group, or person who undertakes to provide or arrange for basic health care services to enrollees in exchange for a fixed prepaid premium.
(4) 'Insured' means an individual resident of this State who is eligible to receive benefits from an insurer.
(5) 'Insurer' includes an entity, corporation, fraternal organization, burial association, health maintenance organization, managed care organization, managed care plan, other association, partnership, society, order, individual, or aggregation of individuals engaging or proposing or attempting to engage as principals in any kind of insurance or surety business, including the exchanging of reciprocal or interinsurance contracts between individuals, partnerships, and corporations. For purposes of this chapter, an insurer is an entity, person, or group providing health insurance or reimbursement for health care services whether for profit or otherwise, which is licensed to engage in the business of insurance in this State and which is subject to state insurance regulation, including multiple employer self-insured health plans licensed pursuant to Chapter 41, Title 38.
(6) 'Managed care organization' means a licensed insurance company, a hospital or medical services plan contract, a health maintenance organization, or any other entity which is subject to state insurance regulation and which operates a managed care plan.
(7) 'Managed care plan' means a plan operated by a managed care organization which provides for the financing and delivery of health care and treatment services to individuals enrolled in the plan through its own employed health care providers or contracting with selected specific providers that conform to explicit selection standards, or both. A managed care plan also customarily has a formal organizational structure for continual quality assurance, a certified utilization review program, dispute resolution, and financial incentives for individual enrollees to use the plan's participating providers and procedures.
(8) 'Preauthorization' means a determination by an insurer that medical care or health care services proposed to be provided to a patient are medically necessary and appropriate.
(9) 'Provider' means a physician, dentist, hospital, or other person properly licensed, certified, or permitted, where required, to furnish health care services.
(10) 'Verification' means a reliable representation by an insurer to a health care provider that the insurer will pay the provider for proposed medical care or health care services if the provider renders those services to the patient for whom the services are proposed. The term includes precertification, certification, recertification, and any other term that would be a reliable representation by an insurer to a provider.
Section 38-94-30. (A) A provider must submit a claim to an insurer not later than the ninety-fifth day after the date the provider provides the medical care or health care services for which the claim is made. An insurer shall accept as proof of timely filing a claim filed in compliance with subsection (B) or information from another insurer or health maintenance organization showing that the provider submitted the claim to the insurer or health maintenance organization in compliance with subsection (B). If a provider fails to submit a claim in compliance with this subsection, the provider forfeits the right to payment unless the failure to submit the claim in compliance with this subsection is a result of a catastrophic event that substantially interferes with the normal business operations of the provider. The period for submitting a claim under this subsection may be extended by contract. A provider may not submit a duplicate claim for payment before the forty-sixth day after the date the original claim was submitted. The director shall promulgate regulations under which an insurer may determine whether a claim is a duplicate claim.
(B) A provider, as appropriate, may:
(1) mail a claim by United States mail, first class, or by overnight delivery service;
(2) submit the claim electronically;
(3) fax the claim; or
(4) hand deliver the claim.
(C) If a claim for medical care or health care services provided to a patient is mailed, the claim is presumed to have been received by the insurer on the fifth day after the date the claim is mailed or, if the claim is mailed using overnight service or return receipt requested, on the date the delivery receipt is signed. If the claim is submitted electronically, the claim is presumed to have been received on the date of the electronic verification of receipt by the insurer or the insurer's clearinghouse. If the insurer or the insurer's clearinghouse does not provide a confirmation within twenty-four hours of submission by the provider, the provider's clearinghouse shall provide the confirmation. The provider's clearinghouse must be able to verify that the filing contained the correct payor identification of the entity to receive the filing. If the claim is faxed, the claim is presumed to have been received on the date of the transmission acknowledgment. If the claim is hand delivered, the claim is presumed to have been received on the date the delivery receipt is signed.
(D) Except as provided by subsection (H), not later than the forty-fifth day after the date the insurer receives a clean claim from a provider in a nonelectronic format or the thirtieth day after the date the insurer receives a clean claim from a provider that is electronically submitted, the insurer shall make a determination of whether the claim is payable and if the insurer determines:
(1) the entire claim is payable, pay the total amount of the claim in accordance with the contract between the provider and the insurer;
(2) a portion of the claim is payable, pay the portion of the claim that is not in dispute and notify the provider in writing why the remaining portion of the claim will not be paid; or
(3) that the claim is not payable, notify the provider in writing why the claim will not be paid.
(E) Not later than the twenty-first day after the date an insurer affirmatively adjudicates a pharmacy claim that is electronically submitted, the insurer shall pay the total amount of the claim.
(F) Except as provided by subsection (H), if the insurer intends to audit the provider claim, the insurer shall pay the charges submitted at one hundred percent of the contracted rate on the claim not later than the thirtieth day after the date the insurer receives the clean claim from the provider if submitted electronically or if submitted nonelectronically not later than the forty-fifth day after the date the insurer receives the clean claim from the provider. The insurer clearly shall indicate on the explanation of payment statement in the manner prescribed by the director by regulation that the clean claim is being paid at one hundred percent of the contracted rate, subject to completion of the audit. If the insurer requests additional information to complete the audit, the request must describe with specificity the clinical information requested and relate only to information the insurer in good faith can demonstrate is specific to the claim or episode of care. The insurer may not request as a part of the audit information that is not contained in, or is not in the process of being incorporated into, the patient's medical or billing record maintained by a provider. If the provider does not supply information reasonably requested by the insurer in connection with the audit, the insurer may:
(1) notify the provider in writing that the provider shall provide the information not later than the forty-fifth day after the date of the notice or forfeit the amount of the claim; and
(2) if the provider does not provide the information required by this subsection, recover the amount of the claim.
(G) The insurer shall complete the audit on or before the one hundredth eightieth day after the date the clean claim is received by the insurer, and any additional payment due a provider or any refund due the insurer must be made not later than the thirtieth day after the completion of the audit. If a provider disagrees with a refund request made by an insurer based on the audit, the insurer shall provide the provider with an opportunity to appeal, and the insurer may not attempt to recover the payment until all appeal rights are exhausted.
(H) The investigation and determination of payment, including any coordination of other payments, does not extend the period for determining whether a claim is payable under subsection (D) or (E) or for auditing a claim under subsection (F).
(I) If an insurer needs additional information from a treating provider to determine payment, the insurer, not later than the thirtieth calendar day after the date the insurer receives a clean claim, shall request in writing that the provider provide an attachment to the claim that is relevant and necessary for clarification of the claim. The request must describe with specificity the clinical information requested and relate only to information the insurer can demonstrate is specific to the claim or the claim's related episode of care. The provider is not required to provide an attachment that is not contained in, or is not in the process of being incorporated into, the patient's medical or billing record maintained by a provider. An insurer that requests an attachment under this subsection shall determine whether the claim is payable on or before the later of the fifteenth day after the date the insurer receives the requested attachment or the latest date for determining whether the claim is payable under subsection (D) or (E). An insurer may not make more than one request under this subsection in connection with a claim. Subsections (B) and (C) apply to a request for and submission of an attachment under this subsection.
(J) If an insurer requests an attachment or other information from a person other than the provider who submitted the claim, the insurer shall provide notice containing the name of the provider from whom the insurer is requesting information to the provider who submitted the claim. The insurer may not withhold payment pending receipt of an attachment or information requested under this subsection. If on receiving an attachment or information requested under this subsection the insurer determines that there was an error in payment of the claim, the insurer may recover any overpayment pursuant to the provisions of Section 38-94-40.
(K) The director shall promulgate regulations under which an insurer can easily identify attachments or other information submitted by a provider pursuant to the provisions of subsection (I) or (J).
(L) The insurer's claims payment processes must:
(1) use nationally recognized, generally accepted Current Procedural Terminology codes, notes, and guidelines, including all relevant modifiers; and
(2) be consistent with nationally recognized, generally accepted bundling edits and logic.
(M) A provider may recover reasonable attorney's fees and court costs in an action to recover payment pursuant to the provisions this section.
(N) The director of insurance may promulgate regulations as necessary to implement this chapter.
(O) Except as provided by subsection (A), the provisions of this section may not be waived, voided, or nullified by contract.
Section 38-94-40. (A) An insurer may recover an overpayment to a provider if:
(1) not later than the one hundred eightieth day after the date the provider receives the payment, the insurer provides written notice of the overpayment to the provider that includes the basis and specific reasons for the request for recovery of funds; and
(2) the provider does not make arrangements for repayment of the requested funds on or before the forty-fifth day after the date the provider receives the notice.
(B) If a provider disagrees with a request for recovery of an overpayment, the insurer shall provide the provider with an opportunity to appeal, and the insurer may not attempt to recover the overpayment until all appeal rights are exhausted.
Section 38-94-50. (A) In this section, 'verification' includes preauthorization only when preauthorization is a condition for the verification.
(B) On the request of a provider for verification of a particular medical care or health care service the provider proposes to provide to a particular patient, the insurer shall inform the provider without delay whether the service, if provided to that patient, will be paid by the insurer and shall specify any deductibles, copayments, or coinsurance for which the insured is responsible.
(C) An insurer shall have appropriate personnel reasonably available at a toll-free telephone number to provide a verification under this section between six a.m. and six p.m. Eastern Time Monday through Friday on each day that is not a legal holiday and between nine a.m. and noon Eastern Time on Saturday, Sunday, and legal holidays. An insurer shall have a telephone system capable of accepting or recording incoming phone calls for verifications after six p.m. Eastern Time Monday through Friday and after noon Eastern Time on Saturday, Sunday, and legal holidays and responding to each of those calls on or before the second calendar day after the date the call is received.
(D) An insurer may decline to determine eligibility for payment if the insurer notifies the provider who requested the verification of the specific reason the determination was not made.
(E) An insurer may establish a specific period during which the verification is valid of not less than thirty days.
(F) An insurer that declines to provide a verification shall notify the provider who requested the verification of the specific reason the verification was not provided.
(G) If an insurer has provided a verification for proposed medical care or health care services, the insurer may not deny or reduce payment to the provider for those medical care or health care services if provided to the insured on or before the thirtieth day after the date the verification was provided unless the provider has materially misrepresented the proposed medical or health care services or has substantially failed to perform the proposed medical or health care services.
(H) The provisions of this section may not be waived, voided, or nullified by contract.
Section 38-94-60. (A) An insurer may require a provider to retain in the provider's records updated information concerning other health benefit plan coverage and to provide the information to the insurer on the applicable form described in Section 38-94-20(1).
Except as provided by this subsection, an insurer may not require a provider to investigate coordination of other health benefit plan coverage.
(B) Coordination of payment under this section does not extend the period for determining whether a service is eligible for payment.
(C) A provider who submits a claim for particular medical care or health care services to more than one health maintenance organization or insurer shall provide written notice on the claim submitted to each health maintenance organization or insurer of the identity of each other health maintenance organization or insurer with which the same claim is being filed.
(D) On receipt of notice under subsection (C), an insurer shall coordinate and determine the appropriate payment for each health maintenance organization or insurer to make to the provider.
(E) Except as provided by subsection (F), if an insurer is a secondary payor and pays a portion of a claim that should have been paid by the insurer or health maintenance organization that is the primary payor, the overpayment may only be recovered from the health maintenance organization or insurer that is primarily responsible for that amount.
(F) If the portion of the claim overpaid by the secondary insurer was also paid by the primary health maintenance organization or insurer, the secondary insurer may recover the amount of overpayment under Section 38-94-40 from the provider who received the payment. An insurer processing an electronic claim as a secondary payor shall rely on the primary payor information submitted on the claim by the provider. Primary payor information may be submitted electronically by the primary payor to the secondary payor.
(G) An insurer may share information with a health maintenance organization or another insurer to the extent necessary to coordinate appropriate payment obligations on a specific claim.
(H) The provisions of this section may not be waived, voided, or nullified by contract.
Section 38-94-70. (A) An insurer that uses a preauthorization process for medical care and health care services shall provide to each provider, not later than the tenth business day after the date a request is made, a list of medical care and health care services that require preauthorization and information concerning the preauthorization process.
(B) If proposed medical care or health care services require preauthorization as a condition of the insurer's payment to a provider under a health insurance policy, the insurer shall determine whether the medical care or health care services proposed to be provided to the insured are medically necessary and appropriate.
(C) On receipt of a request from a provider for preauthorization, the insurer shall review and issue a determination indicating whether the proposed medical or health care services are preauthorized. The determination must be issued and transmitted not later than the third calendar day after the date the request is received by the insurer.
(D) If the proposed medical care or health care services involve inpatient care and the insurer requires preauthorization as a condition of payment, the insurer shall review the request and issue a length of stay for the admission into a health care facility based on the recommendation of the patient's provider and the insurer's written medically accepted screening criteria and review procedures. If the proposed medical or health care services are to be provided to a patient who is an inpatient in a health care facility at the time the services are proposed, the insurer shall review the request and issue a determination indicating whether proposed services are preauthorized within twenty-four hours of the request by the provider.
(E) An insurer shall have appropriate personnel reasonably available at a toll-free telephone number to respond to requests for a preauthorization between six a.m. and six p.m. Eastern Time Monday through Friday on each day that is not a legal holiday and between nine a.m. and noon Eastern Time on Saturday, Sunday, and legal holidays. An insurer shall have a telephone system capable of accepting or recording incoming phone calls for preauthorizations after six p.m. Eastern Time Monday through Friday and after noon Eastern Time on Saturday, Sunday, and legal holidays and responding to each of those calls not later than twenty-four hours after the call is received.
(F) If an insurer has preauthorized medical care or health care services, the insurer may not deny or reduce payment to the provider for those services based on medical necessity or appropriateness of care unless the provider has materially misrepresented the proposed medical or health care services or has substantially failed to perform the proposed medical or health care services.
(G) This section applies to an agent or other person with whom an insurer contracts to perform, or to whom the insurer delegates the performance of, preauthorization of proposed medical or health care services.
(H) The provisions of this section may not be waived, voided, or nullified by contract.
Section 38-94-80. (A) A contract between an insurer and a provider must provide that the:
(1) provider may request a description and copy of the coding guidelines, including any underlying bundling, recoding, or other payment process and fee schedules applicable to specific procedures that the provider will receive under the contract;
(2) insurer or the insurer's agent will provide the coding guidelines and fee schedules not later than the thirtieth day after the date the insurer receives the request;
(3) insurer or the insurer's agent will provide notice of changes to the coding guidelines and fee schedules that will result in a change of payment to the provider not later than the ninetieth day before the date the changes take effect and will not make retroactive revisions to the coding guidelines and fee schedules; and
(4) contract may be terminated by the provider on or before the thirtieth day after the date the provider receives information requested under this subsection without penalty or discrimination in participation in other health care products or plans.
(B) A provider who receives information under subsection (A) may only:
(1) use or disclose the information for the purpose of practice management, billing activities, and other business operations; and
(2) disclose the information to a governmental agency involved in the regulation of health care or insurance.
(C) The insurer, on request of the provider, shall provide the name, edition, and model version of the software that the insurer uses to determine bundling and unbundling of claims.
(D) The provisions of this section may not be waived, voided, or nullified by contract.
Section 38-94-90. (A) Except as provided by this section, if a clean claim submitted to an insurer is payable and the insurer does not determine under Section 38-94-30 that the claim is payable and pay the claim on or before the date the insurer is required to make a determination or adjudication of the claim, the insurer shall pay the provider making the claim the contracted rate owed on the claim plus a penalty in the amount of the lesser of:
(1) fifty percent of the difference between the billed charges, as submitted on the claim, and the contracted rate; or
(2) one hundred thousand dollars.
(B) If the claim is paid on or after the forty-sixth day and before the ninetieth-first day after the date the insurer is required to make a determination or adjudication of the claim, the insurer shall pay a penalty in the amount of the lesser of:
(1) one hundred percent of the difference between the billed charges, as submitted on the claim, and the contracted rate; or
(2) two hundred thousand dollars.
(C) If the claim is paid on or after the ninetieth-first day after the date the insurer is required to make a determination or adjudication of the claim, the insurer shall pay a penalty computed under subsection (B) plus eighteen percent annual interest on that amount. Interest under this subsection accrues beginning on the date the insurer was required to pay the claim and ending on the date the claim and the penalty are paid in full.
(D) Except as provided by this section, an insurer that determines under Section 38-94-30 that a claim is payable, pays only a portion of the amount of the claim on or before the date the insurer is required to make a determination or adjudication of the claim, and pays the balance of the contracted rate owed for the claim after that date shall pay to the provider, in addition to the contracted amount owed, a penalty on the amount not timely paid in the amount of the lesser of:
(1) fifty percent of the underpaid amount; or
(2) one hundred thousand dollars.
(E) If the balance of the claim is paid on or after the forty-sixth day and before the ninetieth-first day after the date the insurer is required to make a determination or adjudication of the claim, the insurer shall pay a penalty on the balance of the claim in the amount of the lesser of:
(1) one hundred percent of the underpaid amount; or
(2) two hundred thousand dollars.
(F) If the balance of the claim is paid on or after the ninetieth-first day after the date the insurer is required to make a determination or adjudication of the claim, the insurer shall pay a penalty on the balance of the claim computed under subsection (E) plus eighteen percent annual interest on that amount. Interest under this subsection accrues beginning on the date the insurer was required to pay the claim and ending on the date the claim and the penalty are paid in full.
(G) For the purposes of subsections (D) and (E), the underpaid amount is calculated on the ratio of the amount underpaid on the contracted rate to the contracted rate as applied to the billed charges as submitted on the claim.
(H) An insurer is not liable for a penalty under this section:
(1) if the failure to pay the claim in accordance with Section 38-94-30 is a result of a catastrophic event that substantially interferes with the normal business operations of the insurer; or
(2) if the claim was paid in accordance with Section 38-94-30, but for less than the contracted rate, and the:
(a) provider notifies the insurer of the underpayment after the one hundred eightieth day after the date the underpayment was received; and
(b) insurer pays the balance of the claim on or before the forty-fifth day after the date the insurer receives the notice.
(I) Subsection (H) does not relieve the insurer of the obligation to pay the remaining unpaid contracted rate owed the provider.
(J) An insurer that pays a penalty under this section shall clearly indicate on the explanation of payment statement in the manner prescribed by the director by regulation the amount of the contracted rate paid and the amount paid as a penalty."
SECTION 2. Article 1, Chapter 71, Title 38 of the 1976 Code is amended by adding:
"Section 38-71-225. A health insurer may not deny an insurance claim to any health care provider when, in the judgment of the primary health care provider, medically necessary services, including care and treatment services, are provided to an insured on the same date. The provisions of this section include diagnostic services."
SECTION 3. (A) With respect to a contract entered into between an insurer or health maintenance organization and a physician or health care provider, and payment for medical care or health care services under the contract, the changes in law made by this act apply only to a contract entered into or renewed on or after the sixtieth day after the effective date of this act and payment for services under the contract. Such a contract entered into before the sixtieth day after the effective date of this act and not renewed or that was last renewed before the sixtieth day after the effective date of this act, and payment for medical care or health care services under the contract, are governed by the law in effect immediately before the effective date of this act, and that law is continued in effect for that purpose.
(B) With respect to the payment for medical care or health care services provided, but not provided under a contract to which subsection (A) applies, the changes in law made by this act apply only to the payment for those services provided on or after the sixtieth day after the effective date of this act. Payment for those services provided before the sixtieth day after the effective date of this act is governed by the law in effect immediately before the effective date of this act, and that law is continued in effect for that purpose.
SECTION 4. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 5. This act takes effect July 1, 2005
This web page was last updated on Tuesday, June 23, 2009 at 2:48 P.M.