Advocacy groups say proposed federal external review regulations could let self-insured health plans choose friendly independent review organizations (IROs).

The groups make that argument in a comment on an amendment to the interim final rule implementing the internal claims and appeals and external review processes provisions of the Patient Protection and Affordable Care Act of 2010 (PPACA).

The interim final rule – which was developed by the U.S. Department of Health and Human Services, the Internal Revenue Service and the Employee Benefits Security Administration (EBSA) — applies to non-grandfathered group health plans, holders of individual health coverage and members of governmental health plans.

The amendment, released in June, creates a “safe harbor” for self-insured employer plans that are not subject to a state external review process or a process supervised by HHS.

The safe harbor will let self-insured plans start meeting the external review requirements by hiring accredited IROs.

Plans are supposed to contract with at least 2 IROs by Jan. 1, 2012, and at least 3 IROs by July 1, 2012, and assign cases to the IROs on a rotating basis.

Elizabeth Ysla Leight, a commenter from the Society of Professional Benefit Administrators (SPBA), Chevy Chase, Md., says plan administrators are having a hard time finding IROs and would like to see regulators push the compliance deadline back to July 1, 2013.

The advocacy groups – including organizations such as Advocacy for Patients with Chronic Illness Inc., Farmington, Conn., and Consumers Union, Yonkers, N.Y. — say in a joint letter that they believe the IRO selection rules are too loose.

“Permitting plans to choose the IRO undermines a key principle of the appeals and external review … that the external review be conducted by an entity that is completely independent from the plan, with no potential for conflicts of interest, so as to provide for a fully impartial review,” the groups say. “Given the lack of clarity in this rulemaking, it also appears possible for a plan to vary its approach to selecting an IRO, raising the possibility that a plan might choose the IRO based on the nature of the dispute, the participant or beneficiary or the particular coverage. This opens up the external review process to the potential for what is in effect forum shopping for an IRO that is likely to produce a review in favor or the plan.”

Other advocacy group commenters have called for regulators to be rigorous about requiring plans to communicate with enrollees in writing and to provide help for enrollees who speak languages other than English.

Commenters representing insurers, plans and plan administrators are asking regulators to avoid heaping expensive, complicated new requirements on employers that are already struggling to pay for health coverage.

The National Business Group on Health (NBGH), Washington, for example, a group that represents large employers, says regulators should hold down costs by permanently “limiting the scope of claims eligible for external review to those involving medical judgment” and by “allowing plans, rather than external reviewers, to determine whether a claim involves medical judgment,” NBGH President Helen Darling says.

Regulators also should exclude “legal, contractual, plan design, and plan interpretation decisions from the scope of claims eligible for external review,” and they should eliminate “the requirement that plans include in each notice a statement in the relevant non-English language about the availability of language services,” Darling says.

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