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Washington State Insurance Commissioner Deputy Commissioner Molly Nollette PO Box 40255 Olympia, WA 98504-0255 April 27, 2018 Dear Deputy Nollette, Please accept this letter as a formal complaint from the Washington State Chiropractic Association on behalf of our Board of Directors and our member chiropractors. Our complaint relates to the practices of eviCore Healthcare [eviCore Healthcare, 400 Buckwalter Place Blvd., Bluffton, SC 29910], a company which provides benefit management services to Washington health carriers including Regence BlueShield and Premera Blue Cross. We believe that eviCore methods violate state insurance rules and inappropriately interfere in patient care. In particular, eviCore’s process for authorizing and reviewing chiropractic care lacks transparency and coherence. WSCA member chiropractors have objected and sought answers from insurers and from eviCore without response. [See Attachment A – “2016 Letters to Premera and eviCore”] Chiropractors and their patients have complained to the Insurance Commissioner, the insurers, and to eviCore directly, in some cases without response and to date without resolution. While we are aware that the agency is engaged in rulemaking on prior authorization, we do not believe that patients should lose benefits and pay for covered health care services out-of-pocket while insurers negotiate for the kind of oversight insurers can tolerate. We have formally commented on these proposed rules and various drafts. Nevertheless, existing statutes and current rules provide sufficient authority for the agency to act to correct these unfair practices. Once more, we write to request that the Insurance Commissioner enforce insurance regulations to require transparency, clarity, and fairness in the procedures that insurers and their vendors force upon health care providers. Below we describe the specific problems that we ask the agency to investigate and resolve. Treatment Request Clinical Worksheets eviCore requires chiropractors to use its web portal for online reporting of plan enrollee requests for treatment. The information provided forms the basis for eviCore’s initial

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authorization for musculoskeletal care and medical necessity determinations. However, neither the web portal nor any other source of information from the company adequately defines or describes critical elements of this reporting system. [See Attachment B – “eviCore Clinical Submission Sample”] For example, the company requests a “Date of Onset” and “Date of Initial Evaluation” on its “Treatment Request Clinical Worksheet.” The company provides no definition of either of these terms nor do the carriers who have contracted for eviCore services. In advocating for our members, we have explicitly requested clarification and instruction without response. Chiropractors have been unable to obtain guidance and do not know what clinical standards the company uses to make medical necessity determinations. We believe that these failures violate Chapter 284-43 of the Washington Administrative Code (WAC) governing utilization review and other standards for determining health plan benefits such as those governing medical necessity. The failure to provide clear directions, definitions, or guidance gives eviCore too much discretion to deny benefits and produces inconsistent and variable outcomes for similarly situated patients. For illustration, consider the following case example relating to “Date of Onset”:

Patient has been treated in a chiropractor’s office 1-2 times per year since 1995 for episodic low back pain that originating in 1985 after a fall from a ladder. Patient had an L5-S1 fusion in 1987. Afterwards, patient suffered periodic bouts of progressively worsening low back stiffness. In September 2016, patient presented for low back pain after weeding and raking leaves.

In the example above, what is the initial “Date of Onset”? Is it in 1985, when the accidental injury occurred or the date of another report of pain? Is the “Date of Onset” in 1995, when the patient first presented to the provider’s office? Is the “Date of Onset” on September 1, 2016, when the latest occurrence of the pain caused the patient to return to this provider? Maybe the “Date of Onset” occurred in the 6-8 week of progressively worsening low back stiffness that preceded the September 2016 visit? Chiropractors and managed care officials disagree as to which “Date of Onset” should be reported in eviCore’s field in the online tool. The date chosen determines the number of allowable visits. A patient reporting the earliest “Date of Onset” indicates a chronic condition that would differ from the number of allowed visits for a patient reporting the latest “Date of Onset.” When pressed by their doctor, many patients cannot choose exact “Date of Onset”; but, the doctor must report a specific date. Without a date, the online process of care authorization is

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terminated. Further, a doctor whose patient suffers an injury or exacerbation of the current condition during the course of active treatment are stuck trying to guess at what “Date of Onset” eviCore requires for authorization of additional treatment. The patient’s condition and the “Date of Onset” of a problem require clinical judgment, evaluation and experience specific to each patient and the history provided by the patient. Often, the chiropractor cannot definitely state a “Date of Onset.” Many musculoskeletal injuries and conditions seem minor at first, but progressively worsen until a patient determines that treatment is needed. Consequently, eviCore forces chiropractors to guess or input an arguable date. In the example, depending upon a variety of facts and circumstances, different chiropractors would report a different “Date of Onset” resulting in vastly different plan benefits and medical necessity determinations. Worse, subsequent retrospective reviews of claims may result in eviCore’s overriding a chiropractor’s reporting and demand return of claim payments. Utilization Review Program eviCore’s utilization review program fails to provide sufficient written review criteria based on reasonable medical evidence and fails to provide sufficient information to participating providers as required by law. eviCore reveals no scientific support for its frequency and duration of care decisions. The key determining factor relied upon refer to “onset” criteria broadly defined in medical literature as acute, subacute, or chronic. This “scientific support” changes as eviCore uses the ill-defined information reported by chiropractors to compile its own database to revise and set an “appropriate” number of allowable visits for chronic, subacute, and acute conditions. Without professional consensus and definitions, the eviCore database produces skewed, inconsistent and inaccurate information. Despite repeated requests, eviCore has failed to provide information that would allow chiropractors to determine the validity of the company’s decisions. We cannot determine whether the company’s retrospective reviews were based upon written policies in place at the time of care or policies that changed after the company revised standards based upon its own database. eviCore requires a chiropractor to make an online report of the most significant patient diagnosis. A doctor cannot use his or her clinical judgment to report two or more equally significant conditions or provide any nuanced diagnosis. To facilitate its own internal process, eviCore changes some ICD-10 code diagnoses overriding the chiropractor’s diagnosis to other less specific codes. Naturally, these code changes always result in fewer allowed visits and lower health plan benefits. This process directly rejects the clinical judgment and assessment of the treating doctor.

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To illustrate these problems, consider the following case:

Patient is originally seen in provider’s office as a new patient on March 10, 2015, after being hit by a vehicle as a pedestrian on January 1, 2015. The initial injuries are lumbar facet dysfunction, as well as occipital neuralgia, resulting in intense headaches and cervical pain. Patient obtains full resolution of symptoms with periodic musculoskeletal treatment. Patient returns on December 3, 2016, with an episode of severe lower back pain and headaches that began a few days before the latest visit. Patient had been treated on August 1, 2016, for low back only, and on September 12, 2016, for severe headaches and occipital pain.

What are the “Date of Initial Evaluation” and the “Date of Onset” for the service on December 3, 2016? Is the Date of Initial Evaluation on March 10, 2015, or on December 3, 2016? Is the date of onset December 1, 2016, when the symptoms recurred, or on January 1, 2015, when the initial injury occurred? If the patient has severe headaches related to cervical injuries, as well as severe low back pain, which eviCore worksheet should be used if the pain is equally significant in both regions? Which diagnosis code should be used if only one diagnosis code for the most significant condition can be used? Further, what does the reporting of a diagnosis matter if eviCore changes the diagnosis codes? The eviCore worksheet and web portal require that a doctor to pick only one bodily area or diagnosis as the most significant condition. The inability of the doctor to use his clinical judgment and to designate more than one diagnosis deprives patients the right to receive treatment for both of these injuries. eviCore improperly substitutes its own judgment jeopardizing health and wellbeing of the patient. If substitution of company judgment for the treating doctor’s clinical determination were not sufficiently detrimental, chiropractors report that eviCore decision makers may have no relevant chiropractic training or license let alone, a Washington chiropractic license. eviCore will not identify the credentials of the individuals involved in their utilization review process. eviCore will not identify individuals participating in care authorization in any given case. We have no idea whether eviCore uses minimum wage clerks or marginally trained professionals to authorize and approve patient care.

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Action requested We ask that you review eviCore online tools; forms and worksheets, and information required through their Web Portal, used in determining medical necessity and health care benefits, and take appropriate steps to require eviCore and contracting carriers compliance with Washington insurance regulations. More specifically, we respectfully request that the agency act to require the following:

- eviCore must clearly define and provide guidance for “Date of Onset” and “Date of Initial Evaluation” in a manner that does result in differing and inconsistent responses under similar circumstances;

-eviCore must respond to the requests of providers for written information and clarification in a timely fashion;

-eviCore must permit sufficient input regarding the treating provider’s judgment and recommendations regarding the medical purpose of the requested service, and the extent to which the service is likely to produce incremental health benefits, and must consider the range of clinically relevant information necessary for patient care;

-eviCore must allow for multiple diagnoses of patient conditions determined by clinical judgment and experience of the provider to be equally significant and in need of musculoskeletal services;

-eviCore must cease the practice of altering diagnoses reported by treating providers;

- eviCore must use only individuals licensed in the State of Washington, in the same field as the provider submitting the request for service.

We believe that any and all of the following laws and their relevant implementing rules apply to these unfair practices and should be enforced immediately to correct and prevent future abuses.

RCW 48.43.016 Prior authorization standards and criteria

RCW 48.43.515 Access to appropriate health services

RCW 48.43.520 Requirements for utilization review criteria

RCW 48.43.525 Prohibition on retrospective denial of health plan coverage

RCW 48.43.545(1) Standard of care when arranging health care

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RCW 48.43.550 Delegation of duties – Carrier accountability

If you believe that you lack the necessary authority to resolve these issues, please let us know so that we may pursue other appropriate remedies. We would be happy to provide any further or additional information and case examples that you may need to complete your investigation and respond to our concerns. Sincerely yours,

Lori Grassi WSCA Executive Director and Lobbyist Cc: Dr. Shawn Gay, President Dr. David Butters, Government Relations Director