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ENGROSSED HOUSE
BILL NO. 3862 By: Ford, Sneed, and Sterling
of the House
and
Standridge of the Senate
[ health insurance – terms – disclosure and review of
prior authorization requirements – adverse
determinations – personnel qualifications –
consultations – requirements physicians –
retrospective denial – exemptions – failure to
comply – codification – effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to b e codified
in the Oklahoma Statutes as Section 6570.1 of Title 36, unless there
is created a duplication in numbering, reads as follows:
As used in this section:
1. "Prior authorization" means the process by which utilization
review entities determine the medical necessity and/or medical
appropriateness of otherwise cove red health care services prior to
the rendering of such health care services. Prior authorization
also includes any health insurer 's or utilization review entity 's
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requirement that an enro llee or health care provider notify the
health insurer or utilizati on review entity prior to providing a
health care service; and
2. "Utilization review entity" means an individual or entity
that performs prior authorization for an:
a. insurer that writes health insurance policies, and
b. a preferred provider organization, health maintenance
organization, or exclusive provider organization.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.2 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. A utilization review entity shall make any current prior
authorization requirements and restrictions readily accessible on
its website to enrollees, heal th care professionals, and the general
public. This includes the written clinical criteria. Requirements
shall be described in detail but also in easily understandable
language.
B. If a utilization review entity intends either to implement a
new prior authorization requirement or restriction or amend an
existing requirement or restriction, the utilization review entity
shall ensure that the new or amended requirement is not implemented
unless the utilization review entity 's website has been updated to
reflect the new or amended requirement or restriction.
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C. If a utilization review entity intends either to implement a
new prior authorization requirement or restriction or amend an
existing requirement or restriction, the utilization review entity
shall provide health care providers of enrollees written notice of
the new or amended requirement or restriction no less than sixty
(60) days before the requirement or restriction is implemented.
SECTION 3. NEW LAW A new section of law to b e codified
in the Oklahoma Statutes as Section 6570.3 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. A utilization review entity must ensure that all adverse
determinations are made by a physician.
B. The physician must:
1. Possess a current and valid nonrestricted license to
practice medicine;
2. Be of the same specialty as the physician who typically
manages the medical condition or disease or provides the health care
service involved in the request;
3. Have experience treating patients with the medical condition
or disease for which the health care service is being requested; and
4. Make the adverse determination under the clinical direction
of one of the utilization review entity 's medical directors who are
responsible for the provision of health care services provided to
enrollees of Oklahoma.
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SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.4 of Title 36, unless there
is created a duplicati on in numbering, reads as follows:
If a utilization review entity is questioning the medical
necessity of a health care service, the utilization review entity
must notify the enrollee 's physician that the medical necessity is
being questioned. Prior to is suing an adverse determination, the
enrollee's physician must have the opportunity to discuss the
medical necessity of the health care service with the physician who
will be responsible for determining authorization of the health care
service under review.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.5 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. A utilization review entity must ensure that a ll appeals are
reviewed by a physician.
B. The physician must:
1. Possess a current and valid nonrestricted license to
practice medicine;
2. Be currently in active practice in the same or similar
specialty as a physician who typically manages the medica l condition
or disease for at least five (5) consecutive years;
3. Be knowledgeable of, and have experience providing, the
health care services under appeal;
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4. Not be employed by a utilization review entity or be under
contract with the utilization revi ew entity other than to
participate in one or more of the utilization review entity 's health
care provider networks or to perform reviews of appeals, or
otherwise have any financial interest in the outcome of the appeal;
5. Not have been directly involved in making the adverse
determination; and
6. Consider all known clinical aspects of the health care
service under review, including, but not limited to, a review of all
pertinent medical records provided to the utilization review entity
by the enrollee's health care provider, any relevant records
provided to the utilization review entity by a health care facility,
and any medical literature provided to the utilization review entity
by the health care provider.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.6 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. A utilization review entity may not revoke, limit,
condition, or restrict a prior authoriz ation if care is provided
within forty-five (45) business days from the date the health care
provider received the prior authorization.
B. In the case of preventive care that has prior authorization
approval, if it has been determined medically necessary by the
medical provider that additional preventive care is needed, it shall
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be covered under the initial pre -authorization. For any
subsequently provided preventive care covered by the initial pre -
authorization, it must be in connection to care furnished by the
medical provider. Any care provided to an enrollee that is not in
connection to pre-authorized preventive care shall need to receive
pre-authorization approval.
C. A utilization review entity that has made an adverse
determination of both a reques t for prior authorization and a
subsequent appeal by an enrollee's health care provider may be
subject to medical malpractice if it is found that the medical care
furnished in accordance with a utilization review entity's approval
of medical care deviated from accepted norms of practice in the
medical community, the recommendation of an enrollee's health care
provider, and causes an injury to the enrollee. A utilization
review entity shall only be found liable for medical malpractice if
documentation is provided that shows a utilization review entity
undermined the judgment of the enrollee's medical provider and all
relevant information utilized to support the initial request for
prior authorization and appeal of the adverse determination.
D. Nothing in this section shall be construed to require pre -
authorization approval of care that is already exempted from a pre -
authorization approval.
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SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.7 of Title 3 6, unless there
is created a duplication in numbering, reads as follows:
A. A utilization review entity may not require a health care
provider to complete a prior authorization for a heal th care service
in order for the enrollee to whom the service is bei ng provided to
receive coverage if in the most recent twelve -month period, the
utilization review entity has approved or would have approved not
less than eighty percent (80%) of the prior authorization requests
submitted by the health care provider for th at health care service.
B. A utilization review entity may evaluate whether a health
care provider continues to qualify for exemptions as described in
subsection A of this section not mor e than once every twelve (12)
months. Nothing in this section requi res a utilization review
entity to evaluate an existing exemption or prevents a utilization
review entity from establishing a longer exemption period.
C. A health care provider is not req uired to request an
exemption in order to qualify for an exemption.
D. A health care provider who does not receive an exemption may
request from the utilization review entity at any time, but not more
than once per year per service, evidence to support th e utilization
review entity's decision. A health care provider may appeal a
utilization review entity 's decision to deny an exemption.
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E. A utilization review entity may only revoke an exemption at
the end of the twelve -month period if the utilization re view entity:
1. Makes a determination that the health care provider would
not have met the eighty percent (80%) approval criteria based on a
retrospective review of the claims for the particular service for
which the exemption applies for the previous thr ee (3) months, or
for a longer period if needed to reach a minimum o f ten claims for
review;
2. Provides the health care provider with the information it
relied upon in making its determination to revoke the exemption; and
3. Provides the health care pro vider a plain language
explanation of how to appeal the decision.
F. An exemption remains in effect until the thirtieth day after
the date the utilization review entity notifies the health care
provider of its determination to revoke the exemption, or if the
health care provider appeals the determination, the fifth day af ter
the revocation is upheld on appeal.
G. A determination to revoke or deny an exemption must be made
by a health care provider of the same or similar specialty as the
health care provider being considered for an exemption and have
experience in providin g the service for which the potential
exemption applies.
H. A utilization review entity must provide a health care
provider that receives an exemption a notice that includes:
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1. A statement that the health care provider qualifies for an
exemption from pre-authorization requirements;
2. A list of services for which the exemptions apply; and
3. A statement of the duration of the exemption.
I. A utilization review entity shall not deny or reduce payment
for a health care service exempted from a prior auth orization
requirement under this section, including a health care service
performed or supervised by another health care provider when the
health care provider who ordered such service rec eived a prior
authorization exemption, unless the rendering health c are provider:
1. Knowingly and materially misrepresented the health care
service in request for payment submitted to the utilization review
entity with the specific intent to deceive and obtain an unlawful
payment from utilization review entity; or
2. Failed to substantially perform the health care service.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6570.8 of Title 36 , unless there
is created a duplication in numbering, reads as follo ws:
Any failure by a utilization review entity to comply with the
deadlines and other requirements specified in this act will result
in any health care services subject to review to be aut omatically
deemed authorized by the utilization review entity.
SECTION 9. This act shall become effective November 1, 2024.
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Passed the House of Representatives the 12th day of March, 2024.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2024.
Presiding Officer of the Senate