Arkansas 2023 Regular Session

Arkansas House Bill HB1271 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		Stricken language would be deleted from and underlined language would be added to present law.
2		-	Act 575 of the Regular Session
3	2		ANS167 03-16-2023 15:14:00 ANS167
4	3
5	4		State of Arkansas As Engrossed: H3/6/23 H3/9/23 S3/16/23 1
6	5		94th General Assembly A Bill 2
7	6		Regular Session, 2023 HOUSE BILL 1271 3
8	7		4
9	8		By: Representatives L. Johnson, Achor, F. Allen, Bentley, Breaux, K. Brown, M. Brown, Joey Carr, 5
10	9		Cavenaugh, Duffield, Ennett, Eubanks, D. Ferguson, V. Flowers, D. Garner, Gramlich, Hawk, G. 6
11	10		Hodges, Hollowell, Ladyman, Long, J. Mayberry, McAlindon, McGrew, B. McKenzie, S. Meeks, J. 7
12	11		Moore, Painter, Pilkington, J. Richardson, R. Scott Richardson, Richmond, Rye, Underwood, Vaught, 8
13	12		Wardlaw, D. Whitaker, Womack, Wooten 9
14	13		By: Senators Irvin, J. Boyd 10
15	14		11
16	15		For An Act To Be Entitled 12
17	16		AN ACT TO AMEND THE PRIOR AUTHORIZATION TRANSPARENCY 13
18	17		ACT; TO EXEMPT CERTA IN HEALTHCARE PROVID ERS THAT 14
19	18		PROVIDE CERTAIN HEAL THCARE SERVICES FROM PRIOR 15
20	19		AUTHORIZATION REQUIR EMENTS; AND FOR OTHE R PURPOSES. 16
21	20		17
22	21		18
23	22		Subtitle 19
24	23		TO AMEND THE PRIOR AUTHORIZATION 20
25	24		TRANSPARENCY ACT; AND TO EXEMPT CERTAIN 21
26	25		HEALTHCARE PROVIDERS THAT PROVIDE CERTAIN 22
27	26		HEALTHCARE SERVICES FROM PRIOR 23
28	27		AUTHORIZATION REQUIREMENTS. 24
29	28		25
30	29		26
31	30		BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 27
32	31		28
33	32		SECTION 1. Arkansas Code § 23-99-1103(8), concerning the definition of 29
34	33		"healthcare insurer" under the Prior Authorization Transparency Act, is 30
35	34		amended to read as follows: 31
36	35		(8)(A)(i) “Healthcare insurer” means an entity that is subject 32
37	36		to state insurance regulation, including an insurance company, a health 33
38	37		maintenance organization, a hospital and medical service corporation, a risk-34
39	38		based provider organization, and a sponsor of a nonfederal self-funded 35
40	39		governmental plan. 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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44	43
45	44		(ii) “Healthcare insurer” includes Medicaid where 1
46	45		specifically referenced in §§ 23-99-1119 — 23-99-1126. 2
47	46		(B) “Healthcare insurer” does not include: 3
48	47		(i) A workers' compensation plan; 4
49	48		(ii) Medicaid, except as provided under §§ 23-99-5
50	49		1119 — 23-99-1126 or when Medicaid services are managed or reimbursed by a 6
51	50		healthcare insurer; or 7
52	51		(iii) An entity that provides only dental benefits 8
53	52		or eye and vision care benefits; 9
54	53		10
55	54		SECTION 2. Arkansas Code § 23 -99-1103, concerning definitions used 11
56	55		under the Prior Authorization Transparency Act, is amended to add additional 12
57	56		subdivisions to read as follows: 13
58	57		(22) "Random sample" means at least five (5) claims but no more 14
59	58		than twenty (20) claims for a particular healthcare service that are selected 15
60	59		without method or conscious decision; and 16
61	60		(23) "Value-based reimbursement" means reimbursement that: 17
62	61		(A) Ties a payment for the provision of healthcare 18
63	62		services to the quality of health care provided; 19
64	63		(B) Rewards a healthcare provider for efficiency and 20
65	64		effectiveness; and 21
66	65		(C) May impose a risk -sharing requirement on a healthcare 22
67	66		provider for healthcare services that do not meet the healthcare insurer's 23
68	67		requirements for quality, effectiveness, and efficiency. 24
69	68		25
70	69		SECTION 3. Arkansas Code § 23 -99-1104(a)(1), concerning disclosure 26
71	70		required under the Prior Au thorization Transparency Act, is amended to read 27
72	71		as follows: 28
73	72		(a)(1)(A) A utilization review entity shall disclose all of its prior 29
74	73		authorization requirements and restrictions, including any written clinical 30
75	74		criteria, in a publicly accessible manner on its website. 31
76	75		(B) The disclosure under subdivision (a)(1)(A) of this 32
77	76		section shall include: 33
78	77		(i) A list of any healthcare services that require 34
79	78		prior authorization; and 35
80	79		(ii) Any written clinical criteria. 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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84	83
85	84		1
86	85		SECTION 4. Arkansas Code § 23 -99-1111 is amended to read as follows: 2
87	86		23-99-1111. Requests for prior authorization — Qualified persons 3
88	87		authorized to review and approve — Adverse determinations to be made only by 4
89	88		Arkansas-licensed physicians — Opportunity to discuss treatment before 5
90	89		adverse determination . 6
91	90		(a) The initial review of information submitted in support of a 7
92	91		request for prior authorization may be conducted by a qualified person 8
93	92		employed or contracted by a utilization review entity. 9
94	93		(b) A request for prior authorization may be approved by a qualified 10
95	94		person employed or contracted by a utilization review entity. 11
96	95		(c)(1) An adverse determination regarding a request for prior 12
97	96		authorization shall be made by a physician who possesses a current and 13
98	97		unrestricted license to practice medicine in the State of Arkansas issued by 14
99	98		the Arkansas State Medical Board. 15
100	99		(2)(A) A utilization review entity shall provide a method by 16
101	100		which a physician may request that a prior authorization request be reviewed 17
102	101		by a physician in the same specialty as the physician making the request, by 18
103	102		a physician in another appropriate specialty, or by a pharmacologist. 19
104	103		(B) If a request is made under subdivision (c)(2)(A) of 20
105	104		this section, the reviewing physician or pharmacologist is not required to 21
106	105		meet the requirements of subdivision (c)(1) of this section. 22
107	106		(3)(A) Subject to this subdivision (c)(3), when an adverse 23
108	107		determination is issued by a utilization review entity that questions the 24
109	108		medical necessity, the appropriateness, or the experimental or 25
110	109		investigational nature of a healthcare service, the utilization review entity 26
111	110		shall provide in the notice of adverse determination the name and telephone 27
112	111		number of a physician who possesses a current and unrestricted license i n 28
113	112		this state with whom the requesting healthcare provider may have a reasonable 29
114	113		opportunity to discuss the patient's treatment plan and the clinical basis 30
115	114		for the intervention. 31
116	115		(B) The requesting healthcare provider may contact the 32
117	116		reviewing physician at the telephone number provided with the adverse 33
118	117		determination under subdivision (c)(3)(A) of this section within one (1) 34
119	118		business day of receipt of the adverse determination for an urgent service, 35
120	119		or within two (2) business days of receipt of the adverse determination for a 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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124	123
125	124		nonurgent service, to engage in the discussion of the patient's treatment 1
126	125		plan and the clinical basis for the intervention under subdivision (c)(3)(A) 2
127	126		of this section. 3
128	127		(C)(i) Following any discussion under subdivision 4
129	128		(c)(3)(B) of this section, the utilization review entity shall notify the 5
130	129		healthcare provider whether or not the adverse determination decision remains 6
131	130		the same or the service is approved. 7
132	131		(ii) The notice under subdivision (c)(3)(C)(i) of 8
133	132		this section shall be pro vided: 9
134	133		(a) Within one (1) business day of the 10
135	134		discussion under subdivision (c)(3)(B) of this section between the provider 11
136	135		and physician for an urgent service; or 12
137	136		(b) Within two (2) business days of the 13
138	137		discussion under subdivision (c)(3)(B) of this section between the provider 14
139	138		and physician for a nonurgent service. 15
140	139		(D) A discussion under subdivision (c)(3)(A) of this 16
141	140		section shall not replace or eliminate the opportunity for any internal 17
142	141		grievance or appeal process provided by the utilizatio n review entity. 18
143	142		(E) If a requesting healthcare provider is a physician, 19
144	143		then the reviewing physician with whom the requesting physician is given an 20
145	144		opportunity to discuss the treatment plan and clinical basis for the 21
146	145		intervention under subdivision (c)(3)(B) of this section shall be a physician 22
147	146		who: 23
148	147		(i) Possesses a current and unrestricted 24
149	148		license to practice medicine in this state; and 25
150	149		(ii) Has the same or similar specialty as the 26
151	150		healthcare provider. 27
152	151		28
153	152		SECTION 5. Arkansas Code Title 23 , Chapter 99, Subchapter 11, is 29
154	153		amended to add additional sections to read as follows: 30
155	154		23-99-1120. Initial exemption from prior authorization requirements 31
156	155		for healthcare providers providing certain healthcare services. 32
157	156		(a)(1) Except as provided under s ubdivision (a)(2) of this section, 33
158	157		beginning on and after January 1, 2024, a healthcare provider that received 34
159	158		approval for ninety percent (90%) or more of the healthcare provider's prior 35
160	159		authorization requests based on a review of the healthcare provider' s 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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164	163
165	164		utilization of the particular healthcare services from January 1, 2022, 1
166	165		through June 30, 2022, shall not be required to obtain prior authorization 2
167	166		for a particular healthcare service and shall be considered exempt from prior 3
168	167		authorization requirements th rough September 30, 2024. 4
169	168		(2) If a healthcare provider's use for a particular healthcare 5
170	169		service increases by twenty -five percent (25%) or more during the period 6
171	170		between January 1, 2024, and June 30, 2024, based on a review of the 7
172	171		healthcare provider's utilization of the particular healthcare service from 8
173	172		January 1, 2022, through June 30, 2022, then the healthcare insurer may 9
174	173		disallow the exemption from prior authorization requirements for the 10
175	174		healthcare provider for the particular healthcare service. 11
176	175		(b)(1) A healthcare insurer shall conduct an evaluation of the initial 12
177	176		six-month exemption period based on claims submitted between January 1, 2024, 13
178	177		through June 30, 2024, to determine whether to grant or deny an exemption for 14
179	178		each particular healthcare service that requires a prior authorization by the 15
180	179		healthcare insurer. 16
181	180		(2) The evaluation by the healthcare insurer shall be conducted 17
182	181		by using the retrospective review process under § 23 -99-1122(c) and applying 18
183	182		the criteria under s ubsection (d) of this section. 19
184	183		(3) A healthcare insurer shall submit to a healthcare provider a 20
185	184		written statement of: 21
186	185		(A) The total number of payable claims submitted by or in 22
187	186		connection with the healthcare provider; and 23
188	187		(B) The total number of denied and approved prior 24
189	188		authorizations between January 1, 2022, through June 30, 2022. 25
190	189		(c)(1) No later than October 1, 2024, a healthcare insurer shall issue 26
191	190		a notice to each healthcare provider that either grants or denies a prior 27
192	191		authorization exemption to the healthcare provider for each particular 28
193	192		healthcare service. 29
194	193		(2) An exemption granted under this subdivision (c)(1) shall be 30
195	194		valid for at least twelve (12) months. 31
196	195		(d) Except as provided under subsection (f) of this section or § 23 -32
197	196		99-1125, a healthcare insurer that uses a prior authorization process for 33
198	197		healthcare services shall not require a healthcare provider to obtain prior 34
199	198		authorization for a particular health care service that a healthcare provider 35
200	199		has previously been subject to a prior authorization requirement if, in the 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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204	203
205	204		most recent six-month evaluation period as described under subsection (e) of 1
206	205		this section, the healthcare insurer has approved or would have approved no 2
207	206		less than ninety percent (90%) of the prior authorization requests submitted 3
208	207		by the healthcare provider for that particular healthcare service. 4
209	208		(e)(1) Except as provided under subsection (f) of this section, a 5
210	209		healthcare insurer shall evalua te whether or not a healthcare provider 6
211	210		qualifies for an exemption from prior authorization requirements under 7
212	211		subsection (d) of this section one (1) time every twelve (12) months. 8
213	212		(2) The six-month period for the evaluation period described 9
214	213		under subsection (d) of this section shall be any consecutive six (6) month 10
215	214		period during the twelve (12) months following the effective date of the 11
216	215		exemption. 12
217	216		(3) The healthcare insurer shall choose a six -month evaluation 13
218	217		period that allows time for: 14
219	218		(A) The evaluation under subsection (d) of this section; 15
220	219		(B) Notice to the healthcare provider of the decision; and 16
221	220		(C) Appeal of the decision for an independent review to be 17
222	221		completed by the end of the twelve -month period of the exemption. 18
223	222		(f) A healthcare insurer may continue an exemption under subsection 19
224	223		(d) of this section without evaluating whether or not the healthcare provider 20
225	224		qualifies for the exemption under subsection (d) of this section for a 21
226	225		particular evaluation period. 22
227	226		(g) A healthcare provider is not required to request an exemption 23
228	227		under subsection (d) of this section to quality for the exemption. 24
229	228		(h) A healthcare insurer may extend an exemption under subsection (d) 25
230	229		of this section to a group of healthcare providers under the same tax 26
231	230		identification number if: 27
232	231		(1) A healthcare provider with an ownership interest in the 28
233	232		entity to which the tax identification number is assigned does not object; or 29
234	233		(2) The tax identification number is associated with a hospital 30
235	234		licensed in this state and the chief executive officer of the hospital agrees 31
236	235		to the exemption. 32
237	236		33
238	237		23-99-1121. Duration of prior authorization exemption. 34
239	238		(a) Unless a prior authorization exemption is continued for a longer 35
240	239		period of time by a healthcare insurer under § 23-99-1120(f), a healthcare 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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244	243
245	244		provider's exemption from prior authorization requirements under § 23-99-1120 1
246	245		remains in effect until the later of: 2
247	246		(1) The thirtieth day after the date the healthcare insurer 3
248	247		notifies the healthcare provider of the healthcare insurer's determination to 4
249	248		rescind the exemption as described under § 23-99-1122, if the healthcare 5
250	249		provider does not appeal the healthcare insurer's determination within thirty 6
251	250		(30) days of notification of the determination; 7
252	251		(2) If the healthcare provider appeals the determination within 8
253	252		thirty (30) days of notification of the determination, the fifth day after 9
254	253		the date an independent review organization affirms the healthcare insurer's 10
255	254		determination to rescind the exemption; or 11
256	255		(3) Twelve (12) months after the effective date of the 12
257	256		exemption. 13
258	257		(b) If a healthcare provider appeals the determination to rescind the 14
259	258		exemption more than thirty (30) days after notification of the determination 15
260	259		and the independent review organization overtu rns the rescission, the 16
261	260		healthcare provider’s exemption is restored the fifth day after the date of 17
262	261		the independent review organization’s decision, and the exemption remains in 18
263	262		effect for twelve (12) months after restoration unless rescinded under § 23 -19
264	263		99-1122. 20
265	264		(c) If a healthcare insurer does not finalize a rescission 21
266	265		determination as specified in subsection (a) of this section, then the 22
267	266		healthcare provider is considered to have met the criteria under § 23-99-1120 23
268	267		to continue to qualify for the exemption. 24
269	268		(d) A healthcare provider shall not rely on another healthcare 25
270	269		provider’s exemption except when the healthcare provider with an exemption is 26
271	270		the healthcare provider that orders healthcare services that are rendered by 27
272	271		a healthcare provider without an exemption. 28
273	272		29
274	273		23-99-1122. Denial or rescission of prior authorization exemption. 30
275	274		(a) A healthcare insurer may rescind an exemption from prior 31
276	275		authorization requirements of a healthcare provider under § 23-99-1120 only 32
277	276		if: 33
278	277		(1) The healthcare insurer makes a determination that, on the 34
279	278		basis of a retrospective review of a random sample of claims selected by the 35
280	279		healthcare insurer during the most recent evaluation period described by § 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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284	283
285	284		23-99-1120(e), less than ninety percent (90%) of the claims for the 1
286	285		particular healthcare service met the medical necessity criteria that would 2
287	286		have been used by the healthcare insurer when conducting prior authorization 3
288	287		review for the particular healthcare service during the relevant evaluation 4
289	288		period; 5
290	289		(2) The healthcare insurer complies with other applicable 6
291	290		requirements specified in this section, including without limitation: 7
292	291		(A) Notifying the healthcare provider no less than twenty-8
293	292		five (25) days before the proposed rescission is to take effect; and 9
294	293		(B) Providing: 10
295	294		(i) An identification of the healthcare service that 11
296	295		an exemption is being rescinded, the date the notice is issued, and the 12
297	296		effective date of the rescission; 13
298	297		(ii) A plain-language explanation of how the 14
299	298		healthcare provider may appeal and seek an ind ependent review of the 15
300	299		determination, the date the notice is issued, and the company’s address and 16
301	300		contact information for returning the form by mail or email to request an 17
302	301		appeal; 18
303	302		(iii) A statement of the total number of payable 19
304	303		claims submitted by or in connection with the healthcare provider during the 20
305	304		most recent evaluation period that were eligible to be evaluated with respect 21
306	305		to the healthcare service subject to rescission, the number of claims 22
307	306		included in the random sample, and the sample infor mation used to make the 23
308	307		determination, including without limitation: 24
309	308		(a) Identification of each claim included in 25
310	309		the random sample; 26
311	310		(b) The healthcare insurer’s determination of 27
312	311		whether each claim met the healthcare insurer’s screening criteri a; and 28
313	312		(c) For any claim determined to not have met 29
314	313		the healthcare insurer’s screening criteria: 30
315	314		(1) The principal reasons for the 31
316	315		determination that the claim did not meet the healthcare insurer’s screening 32
317	316		criteria, including, if applicable, a statement that the determination was 33
318	317		based on a failure to submit specified medical records; 34
319	318		(2) The clinical basis for the 35
320	319		determination that the claim did not meet the healthcare insurer’s screening 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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324	323
325	324		criteria; 1
326	325		(3) A description of the sou rces of the 2
327	326		screening criteria that were used as guidelines in making the determination; 3
328	327		and 4
329	328		(4) The professional specialty of the 5
330	329		healthcare provider who made the determination; 6
331	330		(iv) A space to be filled out by the healthcare 7
332	331		provider that includes: 8
333	332		(a) The name, address, contact information, 9
334	333		and identification number of the healthcare provider requesting an 10
335	334		independent review; 11
336	335		(b) An indication of whether or not the 12
337	336		healthcare provider is requesting that the entity performing the i ndependent 13
338	337		review examine the same random sample or a different random sample of claims, 14
339	338		if available; and 15
340	339		(c) The date the appeal is being requested; 16
341	340		and 17
342	341		(v) An instruction to the healthcare provider to 18
343	342		return the form to the healthcare insurer before the date the rescission 19
344	343		becomes effective; and 20
345	344		(3) The healthcare provider performs five (5) or fewer of a 21
346	345		particular healthcare service in the most recent six -month evaluation period 22
347	346		under § 23-99-1120(e). 23
348	347		(b) A determination made under subdivision (a)(1) of this section 24
349	348		shall be made by a physician who: 25
350	349		(1) Possesses a current and unrestricted license to practice 26
351	350		medicine in this state; and 27
352	351		(2) Has the same or similar specialty as the healthcare 28
353	352		provider. 29
354	353		(c)(1) A healthcare insu rer that is conducting an evaluation under 30
355	354		subsection (a) of this section to determine whether or not a healthcare 31
356	355		provider still qualifies for a prior authorization exemption may request 32
357	356		medical records and documents required for the retrospective review, limited 33
358	357		to no more than twenty (20) claims for a particular healthcare service. 34
359	358		(2) A healthcare insurer shall provide a healthcare provider at 35
360	359		least thirty (30) days to provide the medical records requested under 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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364	363
365	364		subdivision (c)(1) of this section. 1
366	365		(d) A healthcare insurer may deny an exemption from prior 2
367	366		authorization requirements under § 23-99-1120 only if: 3
368	367		(1) The healthcare provider does not have an exemption at the 4
369	368		time of the relevant evaluation period; and 5
370	369		(2) The healthcare insurer provides the healthcare provider 6
371	370		with: 7
372	371		(A) Actual data for the relevant prior authorization 8
373	372		request evaluation period; and 9
374	373		(B) Detailed information sufficient to demonstrate that 10
375	374		the healthcare provider does not meet the criteria for an exemption from 11
376	375		prior authorization requirements for the particular healthcare service under 12
377	376		§ 23-99-1120. 13
378	377		(e) A healthcare insurer shall: 14
379	378		(1) Allow a healthcare provider to designate an email address or 15
380	379		a mailing address for communications regarding exemptions, denials, and 16
381	380		rescissions; 17
382	381		(2) Provide an option for a healthcare provider to submit a 18
383	382		request for an appeal by mail, by email, or by other electronic method; and 19
384	383		(3) Include an explanation of how a healthcare provider may 20
385	384		update his or her preferred contact information and delivery method on the 21
386	385		healthcare insurer's website and for all communications issued under this 22
387	386		section. 23
388	387		24
389	388		23-99-1123. Independent review of exemption determination. 25
390	389		(a)(1) A healthcare provider has a right to a review of an adverse 26
391	390		determination regarding a prior authorization exemption within twelve (12) 27
392	391		months of receiving proper notice of recission from a healthcare insurer to 28
393	392		be conducted by an independent review organization. 29
394	393		(2) A healthcare insurer shall not require a healthcare provider 30
395	394		to engage in an internal appeal process before requesting a review by an 31
396	395		independent review organization under this section. 32
397	396		(3) A healthcare provider who has an exemption rescinded due to 33
398	397		a failure to provide medical records within sixty (60) days of a record 34
399	398		request for a retrospective review shall not be eligible for review of that 35
400	399		rescission by an independent review entity. 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
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404	403
405	404		(b) A healthcare insurer shall pay: 1
406	405		(1) For any appeal or independent review of an adverse 2
407	406		determination regarding a prior authorization exemption requested under this 3
408	407		section; and 4
409	408		(2) A reasonable fee determined by the Arkansas State Medical 5
410	409		Board for any copies of medical records or other documents requested from a 6
411	410		healthcare provider during an exemption rescission review requested under 7
412	411		this section. 8
413	412		(c) An independent review organization shall complete an expedited 9
414	413		review of an adverse determination regarding a prior authorization exemption 10
415	414		no later than the thirtieth day after the date a healthcare provider files 11
416	415		the request for a review under this section. 12
417	416		(d)(1) A healthcare provider may request that the independent review 13
418	417		organization consider another random sample of no fewer than five (5) and no 14
419	418		more than twenty (20) claims submitted to the healthcare insurer by the 15
420	419		healthcare provider during the relevant evaluation period for the relevant 16
421	420		healthcare service as part of the review under this section. 17
422	421		(2) If a healthcare provider makes a request under subdivision 18
423	422		(d)(1) of this section, the independent review organization shall base its 19
424	423		determination on the medical necessity of claims reviewed: 20
425	424		(A) By the healthcare insurer under § 23-99-1122; and 21
426	425		(B) By the independent review organization under 22
427	426		subdivision (d)(1) of this section. 23
428	427		(e) The Insurance Commissioner may refuse, suspend, revoke, or not 24
429	428		renew a license or certificate of authority of a healthcare insurer that has 25
430	429		fifty percent (50%) of healthcare provider appeals overturned in a twelve -26
431	430		month period by an independent review organization under this section. 27
432	431		28
433	432		23-99-1124. Effect of appeal of independent review organization 29
434	433		determination. 30
435	434		(a) A healthcare insurer is bound by an appeal or independent review 31
436	435		organization determination that does not affirm the determination made by the 32
437	436		healthcare insurer to rescind a prior authorization exemption. 33
438	437		(b) A healthcare insurer shall not retroactively deny a healthcare 34
439	438		service on the basis of a rescission of an exemption, even if the healthcare 35
440	439		insurer's determination to rescind the prior authorization exemption is 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
441	440
442	441		12 03-16-2023 15:14:00 ANS167
443	442
444	443
445	444		affirmed by an independent review organization. 1
446	445		(c) If a determination of a prior authorization exemption made by the 2
447	446		healthcare insurer is overturned on review by an independent review 3
448	447		organization, the healthcare insurer: 4
449	448		(1) Shall not attempt to rescind the exemption before the end of 5
450	449		the next evaluation period; and 6
451	450		(2) May only rescind the exemption if the healthcare insurer 7
452	451		complies with §§ 23-99-1122 and 23-99-1123. 8
453	452		9
454	453		23-99-1125. Eligibility for prior authorization exemption following 10
455	454		finalized exemption rescission or denial. 11
456	455		(a) After a final determination or review affirming the rescission or 12
457	456		denial of an exemption for a specific healthcare service under § 23-99-1120, 13
458	457		a healthcare insurer shall conduct another evaluation to determine whether or 14
459	458		not the exemption should be granted or reinstated based on the six-month 15
460	459		evaluation period that follows the evaluation period that formed the basis of 16
461	460		the rescission or denial of an exemption. 17
462	461		(b) A time period that is included in a previous evaluation or 18
463	462		determination period shall not be included in a subsequent evaluation period. 19
464	463		20
465	464		23-99-1126. Effect of prior authorization exemption. 21
466	465		(a) A healthcare insurer shall not deny or reduce payment to a 22
467	466		healthcare provider for a healthcare service for which the healthcare 23
468	467		provider has qualified for an exemption from prior authorization requirements 24
469	468		under § 23-99-1120, including a healthcare service performed or supervised by 25
470	469		another healthcare provider, if the health care provider who ordered the 26
471	470		healthcare service received a prior authorization exemption based on medical 27
472	471		necessity or appropriateness of care unless the healthcare provider: 28
473	472		(1) Knowingly and materially misrepresented the healthcare 29
474	473		service in a request for payment submitted to the healthcare insurer with the 30
475	474		specific intent to deceive the healthcare insurer and obtain an unlawful 31
476	475		payment from the healthcare insurer; or 32
477	476		(2) Substantially failed to perform the healthcare service. 33
478	477		(b) A healthcare insurer shall not conduct a retrospective review of a 34
479	478		healthcare service subject to an exemption except: 35
480	479		(1) To determine if the healthcare provider still qualifies for 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
481	480
482	481		13 03-16-2023 15:14:00 ANS167
483	482
484	483
485	484		an exemption under § 23 -99-1120; or 1
486	485		(2) If the healthcare insurer has a reaso nable cause to suspect 2
487	486		a basis for denial exists under subsection (a) of this section. 3
488	487		(c) For a retrospective review described by subdivision (b)(2) of this 4
489	488		section, §§ 23-99-1120 — 23-99-1125 shall not modify or otherwise affect: 5
490	489		(1) The requirements under or application of § 23-99-1115, 6
491	490		including without limitation any time frames; or 7
492	491		(2) Any other applicable law, except to prescribe the only 8
493	492		circumstances under which: 9
494	493		(A) A retrospective review may occur as specified by 10
495	494		subdivision (b)(2) of this section; or 11
496	495		(B) Payment may be denied or reduced as specified by 12
497	496		subsection (a) of this section. 13
498	497		(d) Beginning on January 1, 2024, a healthcare insurer shall provide 14
499	498		to a healthcare provider a notice that includes a: 15
500	499		(1) Statement that the healthcare provider has an exemption from 16
501	500		prior authorization requirements under § 23-99-1120; 17
502	501		(2) List of the healthcare services and health benefit plans to 18
503	502		which the exemption applies; and 19
504	503		(3) Statement of the duration of the exemption. 20
505	504		(e) If a healthcare provider submits a prior authorization request for 21
506	505		a healthcare service for which the healthcare provider has an exemption from 22
507	506		prior authorization requirements under § 23-99-1120, the healthcare insurer 23
508	507		shall promptly provide a notice to the healthcare provider that includes: 24
509	508		(1) The information described in subsection (d) of this section; 25
510	509		and 26
511	510		(2) A notification of the healthcare insurer's payment 27
512	511		requirements. 28
513	512		(f) This section and §§ 23-99-1120 — 23-99-1125 shall not be construed 29
514	513		to: 30
515	514		(1) Authorize a healthcare provider to provide a healthcare 31
516	515		service outside the scope of the healthcare provider's applicable license; or 32
517	516		(2) Require a healthcare insurer to pay for a healthcare service 33
518	517		described by subdivision (f)(1) of this section that is performed in 34
519	518		violation of the laws of this state. 35
520	519		(g) A healthcare insurer that offers multiple health benefit plans or 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
521	520
522	521		14 03-16-2023 15:14:00 ANS167
523	522
524	523
525	524		that utilizes multiple healthcare provider networks shall not determine a 1
526	525		healthcare provider’s eligibility for an exemption fr om prior authorization 2
527	526		for each specific health benefit plan or each specific healthcare provider 3
528	527		network but rather shall determine the healthcare provider’s eligibility for 4
529	528		an exemption applicable to all health benefit plans and healthcare provider 5
530	529		networks. 6
531	530		(h) If a healthcare insurer and a healthcare provider are engaged in a 7
532	531		value-based reimbursement arrangement for particular healthcare services or 8
533	532		subscribers, the healthcare insurer shall not impose any prior authorization 9
534	533		requirements for any part icular healthcare service that is included in that 10
535	534		value-based reimbursement arrangement. 11
536	535		12
537	536		23-99-1127. Applicability. 13
538	537		(a)(1) An organization or entity directly or indirectly providing a 14
539	538		plan or services to patients under the Medicaid Provider -Led Organized Care 15
540	539		Act, § 20-77-2701 et seq., or any other Medicaid -managed care program 16
541	540		operating in this state is exempt from §§ 23 -99-1120 – 23-99-1126 if the 17
542	541		program, without limiting the program's application to any other plan or 18
543	542		program, develops a program to reduce or eliminate prior authorizations for a 19
544	543		healthcare provider on or before January 1, 2025. 20
545	544		(2) The Arkansas Health and Opportunity for Me Program established by 21
546	545		the Arkansas Health and Opportunity for Me Act of 2021, § 23 -61-1001 et seq., 22
547	546		or its successor program is exempt from §§ 23 -99-1120 – 23-99-1126, provided 23
548	547		that the Arkansas Health and Opportuni ty for Me Program, without limiting the 24
549	548		Arkansas Health and Opportunity for Me Program's application to any other 25
550	549		plan or program, develops a program to reduce or eliminate prior 26
551	550		authorizations for a healthcare provider on or before January 1, 2025. 27
552	551		(3) A qualified health plan that is a health benefit plan under 28
553	552		the Patient Protection and Affordable Care Act, Pub. L. No. 111 -148, and 29
554	553		purchased on the Arkansas Health Insurance Marketplace created under the 30
555	554		Arkansas Health Insurance Marketplace Act, § 23-61-801 et seq., for an 31
556	555		individual up to four hundred percent (400%) of the federal poverty level, 32
557	556		operating in this state is exempt from §§ 23-99-1120 — 23-99-1126 if the 33
558	557		qualified health plan, without limiting the program's application to any 34
559	558		other plan or program, develops a program to reduce or eliminate prior 35
560	559		authorizations for a healthcare provider on or before January 1, 2025. 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
561	560
562	561		15 03-16-2023 15:14:00 ANS167
563	562
564	563
565	564		(b)(1) The programs under subsection (a) of this section to reduce or 1
566	565		eliminate prior authorization shall be: 2
567	566		(A) Submitted to the State Insurance Department; and 3
568	567		(B) Subject to approval by the Legislative Council. 4
569	568		(2) If a program is not submitted to the department and approved 5
570	569		by the Legislative Council on or before January 1, 2025, the Medicaid -managed 6
571	570		care program operating in this state, the Arkansas Health and Opportunity for 7
572	571		Me Program established by the Arkansas Health and Opportunity for Me Act of 8
573	572		2021, § 23-61-1001 et seq., or its successor program, and qualified health 9
574	573		plans under the Patient Protection and Affordable Care Act, Pub. L. No. 111 -10
575	574		148, and purchased on the Arkansas Health Insurance Marketplace created under 11
576	575		the Arkansas Health Insurance Marketplace Act, § 23-61-801 et seq., for an 12
577	576		individual up to four hundred percent (400%) of the federal povert y level, 13
578	577		operating in this state shall be subject to §§ 23 -99-1120 – 23-99-1126 and § 14
579	578		23-99-1128 as of January 1, 2025. 15
580	579		(c) Any state or local governmental employee plan is exempt from §§ 16
581	580		23-99-1120 — 23-99-1126 and § 23-99-1128. 17
582	581		(d) A health benefit p lan provided by a trust established under §§ 14 -18
583	582		54-101 and 25-20-104 to provide benefits, including accident and health 19
584	583		benefits, death benefits, dental benefits, and disability income benefits, is 20
585	584		exempt from §§ 23-99-1120 – 23-99-1126. 21
586	585		(e)(1) Prescription drugs, medicines, biological products, 22
587	586		pharmaceuticals, or pharmaceutical services are exempt as a healthcare 23
588	587		service for purposes of §§ 23 -99-1120 – 23-99-1126 until December 31, 2024. 24
589	588		(2)(A) As of January 1, 2025, the provisions of §§ 23 -99-1120 – 25
590	589		23-99-1126 shall apply to prescription drugs, medicines, biological products, 26
591	590		pharmaceuticals, or pharmaceutical services that have not been approved for 27
592	591		continuation of prior authorization under § 23 -99-1128. 28
593	592		(B) For the products in subdivision (e)(2)(A) of this 29
594	593		section that have not been approved for continuation of prior authorization, 30
595	594		for purposes of § 23 -99-1120, then: 31
596	595		(i) Provisions regarding time periods specified 32
597	596		during the calendar year 2022 shall instead apply to the same months dur ing 33
598	597		calendar year 2023; and 34
599	598		(ii) Provisions regarding time periods specified 35
600	599		during the calendar year 2024 shall instead apply to the same months during 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
601	600
602	601		16 03-16-2023 15:14:00 ANS167
603	602
604	603
605	604		calendar year 2025. 1
606	605		2
607	606		23-99-1128. Prescription drugs, medicines, biological products, 3
608	607		pharmaceuticals, or pharmaceutical services. 4
609	608		(a)(1) Beginning on January 1, 2024, a healthcare insurer or pharmacy 5
610	609		benefits manager shall submit a written request to the Arkansas State Board 6
611	610		of Pharmacy for any prescription drug, medicine, biological product, 7
612	611		pharmaceutical, or pharmaceutical service to be reviewed for a continuation 8
613	612		of prior authorization by a specified health benefit plan whether or not a 9
614	613		healthcare provider has met the criteria for an exemption from prior 10
615	614		authorization under §§ 23 -99-1120 – 23-99-1126. 11
616	615		(2) The request under subdivision (a)(1) of this section shall 12
617	616		state the reason the request is being made for each prescription drug, 13
618	617		medicine, biological product, pharmaceutical, or pharmaceutical service for 14
619	618		the specified health benefit plan. 15
620	619		(b) The Arkansas State Board of Pharmacy and the Arkansas State 16
621	620		Medical Board, jointly, may establish criteria and procedures to review 17
622	621		whether a request made under subdivision (a)(1) of this section should be 18
623	622		granted for the requesting party and specifi ed health benefit plan. 19
624	623		(c)(1) The Arkansas State Board of Pharmacy and the Arkansas State 20
625	624		Medical Board, jointly, may determine whether or not a prescription drug, 21
626	625		medicine, biological product, pharmaceutical, or pharmaceutical service may 22
627	626		be subject to prior authorization by a health benefit plan under the criteria 23
628	627		and procedures under subsection (b) of this section. 24
629	628		(2) The Arkansas State Board of Pharmacy shall promptly notify 25
630	629		the entity that made the request of the joint decision made by the Arkan sas 26
631	630		State Board of Pharmacy and the Arkansas State Medical Board. 27
632	631		(d) The Arkansas State Board of Pharmacy shall make available to any 28
633	632		person who requests it, a list for any health benefit plan of prescription 29
634	633		drugs, medicines, biological products, pharmaceuticals, or pharmaceutical 30
635	634		services that require a prior authorization under this section. 31
636	635		32
637	636		23-99-1129. Appeals process for disallowance of prior authorization. 33
638	637		(a) If the Arkansas State Board of Pharmacy and the Arkansas State 34
639	638		Medical Board, jointly, disallow a prior authorization of a prescription 35
640	639		drug, medicine, biological product, pharmaceutical, or pharmaceutical service 36 As Engrossed: H3/6/23 H3/9/23 S3/16/23 HB1271
641	640
642	641		17 03-16-2023 15:14:00 ANS167
643	642
644	643
645	644		requested under § 23 -99-1128, a healthcare insurer, pharmacy benefits 1
646	645		manager, or other interested party may file an app eal to the State Insurance 2
647	646		Department within ninety (90) days of the disallowance of the prior 3
648	647		authorization. 4
649	648		(b) No later than the thirtieth day after the date a healthcare 5
650	649		insurer, pharmacy benefits manager, or other interested party files an appeal 6
651	650		under subsection (a) of this section, the Insurance Commissioner shall 7
652	651		appoint an independent review organization to review the appeal. 8
653	652		(c) A healthcare insurer, pharmacy benefits manager, or other 9
654	653		interested party that files an appeal under subsection (a) of this section 10
655	654		shall pay for the independent review organization appointed under subsection 11
656	655		(b) of this section to review the appeal. 12
657	656		(d) A healthcare insurer, pharmacy benefits manager, or other 13
658	657		interested party is bound by the independent review organization's 14
659	658		determination of the appeal under this section. 15
660	659		16
661	660		/s/L. Johnson 17
662	661		18
663	662		19
664		-	~~APPROVED: 4/11/23~~ 20
	663	+	20
665	664		21
666	665		22
667	666		23
668	667		24
669	668		25
670	669		26
671	670		27
672	671		28
673	672		29
674	673		30
675	674		31
676	675		32
677	676		33
678	677		34
679	678		35
680	679		36