CO Code § 10-16-704 (2021)
2021 Colorado Code|Title 10 - Insurance|Article 16 - Health Care Coverage|Part 7 - Consumer Protection Standards Act for the Operation of Managed Care Plans|§ 10-16-704. Network Adequacy - Rules - Legislative Declaration - Definitions

  A carrier providing a managed care plan shall maintain a network that is sufficient in numbers and types of providers to assure that all covered benefits to covered persons will be accessible without unreasonable delay. In the case of emergency services, covered persons shall have access to health-care services twenty-four hours per day, seven days per week. Sufficiency shall be determined in accordance with the requirements of this section and may be established by reference to any reasonable criteria used by the carrier, including but not limited to:   Provider-covered person ratios by specialty, which may include the use of providers through telehealth for services that may appropriately be provided through telehealth;    Primary care provider-covered person ratios;    Geographic accessibility, which in some circumstances may require the crossing of county or state lines;    Waiting times for appointments with participating providers;    Hours of operation;    The volume of technological and specialty services available to serve the needs of covered persons requiring covered technologically advanced or specialty care; and    An adequate number of accessible acute care hospital services within a reasonable distance, travel time, or both. (1.5)     The commissioner shall promulgate rules, consistent with federal law, to: (a) (I)The commissioner shall promulgate rules, consistent with federal law, to:   Require a carrier providing managed care plans to include essential community providers in the carrier's network; or    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.       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.       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.            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.      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: (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:   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    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.       Subsection (2)(b)(I) of this section shall not apply to:   Emergency services or primary care providers; and    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.    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.            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: (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:    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.    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.    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.       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:   Specific counties of the state where there are no participating providers;    The circumstances under which the covered person may be balanced billed by nonparticipating providers; and    The mechanisms to obtain the carrier's reimbursement rates to nonparticipating providers for specific covered health-care services.         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. (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.    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.    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.       For the purposes of this subsection (2):   “Balance bill” means the amount that a nonparticipating provider may charge the covered person. Such amount charged equals the difference between the amount paid by the carrier and the amount of the nonparticipating provider's bill charge.    “Negotiated rate” means the rate mutually agreed upon between the carrier and the provider in a specific instance.    “Usual, customary, and reasonable rate” means a rate established pursuant to an appropriate methodology that is based on generally accepted industry standards and practices.       A health maintenance organization offering health benefits in this state may:   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;    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    Offer coverage pursuant to this paragraph (g) within a geographic area consistent with the requirements of section 10-16-105 (1) and (4).       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.      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: (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:   The provider's billed charges;    A negotiated rate; or    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.       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.       Nothing in paragraph (i) of this subsection (2) shall require either a carrier or a nonparticipating provider to attempt to negotiate a reimbursement rate.    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.    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.    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:   The insured seeks reimbursement from the carrier within twelve months after the provision of the service;    Preauthorization is not required for the particular type of service provided; and    A contract between the provider and the carrier was in place when the service was provided. (2.5)   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:   Specific network changes in the geographic area;    The circumstances under which the covered person may be balance billed by nonparticipating providers; and    The mechanisms to obtain the carrier's reimbursement rates to a nonparticipating provider for specific covered health-care services.       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.    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:   The circumstances under which the covered person may be balance billed by nonparticipating providers; and    The mechanisms to obtain the carrier's reimbursement rate to nonparticipating providers for specific covered health-care services.       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)   Nothing in subsection (2) or (2.5) of this section shall delay access to health-care services.    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.                    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. (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.    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 , no. 04CA2169 (slip op.) (Feb. 23, 2006).    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.    The general assembly finds, determines, and declares that some consumers intentionally use out-of-network providers, which is the consumers' prerogative under certain health benefit plans. When consumers intentionally use an out-of-network provider, the consumer is only entitled to benefits at the out-of-network rate and may be subject to balance billing by the out-of-network provider.    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.       When a covered person receives services or treatment in accordance with plan provisions at a 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 a network facility, including covered ancillary services or treatment rendered by an out-of-network provider performing the services or treatment at a 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.    Repealed.      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. (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.    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:   One hundred ten percent of the carrier's median in-network rate of reimbursement for that service in the same geographic area; or    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.       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.    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.    This subsection (3)(d) does not apply when a covered person voluntarily uses an out-of-network provider.    For purposes of this subsection (3):   “Geographic area” means a specific area in this state as established by the commissioner by rule.    “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”, as amended, 42 U.S.C. sec. 1395 et seq.             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)   All claims paid by a carrier shall be considered final unless adjustments are made pursuant to this subsection (4.5).    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.    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.      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. (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.    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.       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.    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).        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). (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).    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.       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.    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.       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.    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:   A change in eligibility status has occurred making the enrollee ineligible for coverage on the date services were provided; or    An enrollee has committed fraud or material misrepresentation in applying for coverage or in receiving or filing for benefits.       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).    Nothing in this subsection (4.5) shall be construed to require a grace period for the payment of premiums to a health maintenance organization.      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. (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.    (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.       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).       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)   Notwithstanding any provision of law, a carrier that provides any benefits with respect to emergency services shall cover the emergency services:   Without the need for any prior authorization determination;    Regardless of whether the health-care provider furnishing emergency services is a participating provider with respect to emergency services;    For services provided out of network;    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    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 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 cost-sharing limit.         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: (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:   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    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.       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:   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;    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    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.       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.       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.      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). (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).    (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.       For purposes of this subsection (5.5):   “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:   Serious jeopardy to the health of the individual or, with respect to a pregnant woman, the health of the woman or her unborn child;    Serious impairment to bodily functions; or    Serious dysfunction of any bodily organ or part.       “Emergency services”, with respect to an emergency medical condition, means:   A medical screening examination that is within the capability of the emergency department of a hospital, including ancillary services routinely available to the emergency department to evaluate the emergency medical condition; and    Within the capabilities of the staff and facilities available at the hospital, further medical examination and treatment as required to stabilize the patient to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility.       “Geographic area” has the same meaning as defined in subsection (3)(d)(VI)(A) of this section.    “Medicare reimbursement rate” has the same meaning as defined in subsection (3)(d)(VI)(B) of this section.          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.    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.    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.    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   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.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.     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:   A comprehensive listing, made available to covered persons and primary care providers, of the plan's network participating providers and facilities;    (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.    Timely referrals for access to specialty care;    A process for expediting the referral process when indicated by medical condition; and    (A) A provision that referrals approved by the plan cannot be retrospectively denied except for fraud or abuse;       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;    The carrier's quality assurance standards, adequate to identify, evaluate, and remedy problems relating to access, continuity, and quality of care;    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;    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;    The carrier's method for informing covered persons of the plan's services and features, including but not limited to the following:   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;    The extent to which specialty medical services, including physical therapy, occupational therapy, and rehabilitation services are available;    The plan's process for choosing and changing network providers; and    The plan's procedures for providing and approving emergency and medical care;       The carrier's system for ensuring the coordination and continuity of care for covered persons referred to specialty providers;    The carrier's process for enabling covered persons to change primary care professionals;    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.    Any other information required by the commissioner to determine compliance with the provisions of this part 7.         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.    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.    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.       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.      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 comply with the rules adopted under subsection (12)(b) of this section.    The commissioner, in consultation with the state board of health created in section 25-1-103 and the director of the division of professions and occupations in the department of regulatory agencies, shall adopt rules to specify the disclosure requirements under this subsection (12), which rules must specify, at a minimum, the following:   The timing for providing the disclosures for emergency and nonemergency services with consideration given to potential limitations relating to the federal “Emergency Medical Treatment and Labor Act”, 42 U.S.C. sec. 1395dd;    Requirements regarding how the disclosures must be made, including requirements to include the disclosures on billing statements, billing notices, prior authorizations, or other forms or communications with covered persons;    The contents of the disclosures, including the covered person's rights and payment obligations if the covered person's health benefit plan is under the jurisdiction of the division;    Disclosure requirements specific to carriers, including the possibility of being treated by an out-of-network provider, whether a provider is out of network, the types of services an out-of-network provider may provide, and the right to request an in-network provider to provide services; and    Requirements concerning the language to be used in the disclosures, including use of plain language, to ensure that carriers, health-care facilities, and providers use language that is consistent with the disclosures required by this subsection (12) and sections 12-30-112 and 25-3-121 and the rules adopted pursuant to this subsection (12)(b) and sections (3) and 25-3-121 (2).       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.       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.    On or before January 1 of each year, each carrier shall submit information to the commissioner, in a form and manner determined by the commissioner, concerning the use of out-of-network providers and facilities by covered persons and the impact on premium affordability for consumers.        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. (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.    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.    Upon receipt of notice that the settlement teleconference was unsuccessful, the commissioner shall appoint an arbitrator and notify the parties of the arbitration.       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.    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:   The provider's level of training, education, experience, and specialization or subspecialization; and    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.       If the arbitrator's decision requires additional payment by the carrier above the amount paid, the carrier shall pay the provider in accordance with section 10-16-106.5.    The party whose final offer amount was not selected by the arbitrator shall pay the arbitrator's expenses and fees.       Notwithstanding section 24-1-136 (11)(a)(I), on or before July 1, 2021, and each July 1 thereafter, the commissioner shall provide a written report to the health and human services committee of the senate and the health and insurance committee of the house of representatives, or their successor committees, and shall post the report on the division's website summarizing:   The information submitted to the commissioner in subsection (14) of this section; and    The number of arbitrations filed; the number of arbitrations settled, arbitrated, and dismissed in the previous calendar year; and a summary of whether the arbitrations were in favor of the carrier or the out-of-network provider or health-care facility. The list of arbitration decisions must not include any information that specifically identifies the provider, health-care facility, carrier, or covered person involved in each arbitration decision.        (A) The nonparticipating provider's bill charges;   (B) A negotiated rate; or  Pacific Life & Annuity Co. v. Colorado Div. of Ins.  (a) An adequate number of accessible acute care hospital services, within a reasonable distance or travel time, or both;   History. Source: L. 97: Entire part added, p. 1325, § 2, effective July 1. L. 2001: (1), (2), IP(9), (9)(a), IP(9)(b), and (9)(b)(V) amended and (2.5), (2.7), (9)(a.3), (9)(a.5), (9)(a.7), (9)(a.9), (10), and (11) added, pp. 1154, 1158, §§ 4, 5, effective January 1, 2002. L. 2002: (1)(c), (9)(a.7), and (9)(b)(II) amended and (2)(g) to (2)(l) added, pp. 1296, 1297, §§ 12, 13, effective January 1, 2003; (4.5) added, p. 884, § 1, effective January 1, 2003. L. 2003: (4.5)(m) amended, p. 618, § 20, effective July 1. L. 2006: (3) amended, p. 1566, § 1, effective June 2; (2)(m) added, p. 588, § 1, effective September 1. L. 2010: (3)(c) repealed,(SB 10-183), ch. 308, p. 1452, § 1, effective May 27. L. 2013: (1.5) and (5.5) added and (2)(g)(III) amended,(HB 13-1266), ch. 217, p. 982, § 36, effective May 13. L. 2015: (1)(a), (9)(a.5), and (11) amended,(HB 15-1029), ch. 38, p. 96, § 3, effective January 1, 2017. L. 2017: (1.5)(a)(II) amended,(SB 17-249), ch. 283, p. 1550, § 21, effective June 1. L. 2019: (4.5)(f) and (4.5)(j) amended,(SB 19-041), ch. 85, p. 301, § 2, effective August 2; IP(2)(b)(II), (2)(b)(II)(B), and (2)(l) amended,(HB 19-1172), ch. 136, p. 1658, § 55, effective October 1; (3)(a)(III), IP(5.5)(a), (5.5)(a)(V), and (5.5)(b) amended and (3)(d), (5.5)(c), (5.5)(d), (5.5)(e), and (12) to (16) added,(HB 19-1174), ch. 171, p. 1983, § 4, effective January 1, 2020.    Cross references:   For the legislative declaration contained in the 2001 act amending subsections (1), (2), (9)(a), and (9)(b)(V) and the introductory portions to subsections (9) and (9)(b) and enacting subsections (2.5), (2.7), (9)(a.3), (9)(a.5), (9)(a.7), (9)(a.9), (10), and (11), see section 1 of chapter 300, Session Laws of Colorado 2001.   ANNOTATION   When an insured receives care or treatment from a nonparticipating provider at an in-network facility, there is no negotiated rate, and the nonparticipating provider is under no contractual obligation to charge a rate other than his or her normal rate, and the insurer is mandated to pay to an insured only in-network benefits. The insurer is not required to pay the nonparticipating provider's bill balance to shield the insured from making a payment above what it would make to a participating provider. Pac. Life & Annuity Co. v. Colo. Div. of Ins., 140 P.3d 181 (Colo. App. 2006).