Texas 2009 - 81st Regular

Texas Senate Bill SB2200 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R10541 PB-F
2	2	By: Duncan S.B. No. 2200
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to retrospective utilization review and utilization
8	8	review to determine the experimental or investigational nature of a
9	9	health care service.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Sections 1305.004(a)(1), (10), and (23),
12	12	Insurance Code, are amended to read as follows:
13	13	(1) "Adverse determination" has the meaning assigned
14	14	by Chapter 4201 [means a determination, made through utilization
15	15	review or retrospective review, that the health care services
16	16	furnished or proposed to be furnished to an employee are not
17	17	medically necessary or appropriate].
18	18	(10) "Independent review" means a system for final
19	19	administrative review by an independent review organization of the
20	20	medical necessity and appropriateness, or the experimental or
21	21	investigational nature, of health care services being provided,
22	22	proposed to be provided, or that have been provided to an employee.
23	23	(23) "Screening criteria" means the written policies,
24	24	medical protocols, and treatment guidelines used by an insurance
25	25	carrier or a network as part of utilization review [or
26	26	retrospective review].
27	27	SECTION 2. Section 1305.053, Insurance Code, is amended to
28	28	read as follows:
29	29	Sec. 1305.053. CONTENTS OF APPLICATION. Each certificate
30	30	application must include:
31	31	(1) a description or a copy of the applicant's basic
32	32	organizational structure documents and other related documents,
33	33	including organizational charts or lists that show:
34	34	(A) the relationships and contracts between the
35	35	applicant and any affiliates of the applicant; and
36	36	(B) the internal organizational structure of the
37	37	applicant's management and administrative staff;
38	38	(2) biographical information regarding each person
39	39	who governs or manages the affairs of the applicant, accompanied by
40	40	information sufficient to allow the commissioner to determine the
41	41	competence, fitness, and reputation of each officer or director of
42	42	the applicant or other person having control of the applicant;
43	43	(3) a copy of the form of any contract between the
44	44	applicant and any provider or group of providers, and with any third
45	45	party performing services on behalf of the applicant under
46	46	Subchapter D;
47	47	(4) a copy of the form of each contract with an
48	48	insurance carrier, as described by Section 1305.154;
49	49	(5) a financial statement, current as of the date of
50	50	the application, that is prepared using generally accepted
51	51	accounting practices and includes:
52	52	(A) a balance sheet that reflects a solvent
53	53	financial position;
54	54	(B) an income statement;
55	55	(C) a cash flow statement; and
56	56	(D) the sources and uses of all funds;
57	57	(6) a statement acknowledging that lawful process in a
58	58	legal action or proceeding against the network on a cause of action
59	59	arising in this state is valid if served in the manner provided by
60	60	Chapter 804 for a domestic company;
61	61	(7) a description and a map of the applicant's service
62	62	area or areas, with key and scale, that identifies each county or
63	63	part of a county to be served;
64	64	(8) a description of programs and procedures to be
65	65	utilized, including:
66	66	(A) a complaint system, as required under
67	67	Subchapter I;
68	68	(B) a quality improvement program, as required
69	69	under Subchapter G; and
70	70	(C) the utilization review program [and
71	71	retrospective review programs] described in Subchapter H;
72	72	(9) a list of all contracted network providers that
73	73	demonstrates the adequacy of the network to provide comprehensive
74	74	health care services sufficient to serve the population of injured
75	75	employees within the service area and maps that demonstrate that
76	76	the access and availability standards under Subchapter G are met;
77	77	and
78	78	(10) any other information that the commissioner
79	79	requires by rule to implement this chapter.
80	80	SECTION 3. Section 1305.154(c), Insurance Code, is amended
81	81	to read as follows:
82	82	(c) A network's contract with a carrier must include:
83	83	(1) a description of the functions that the carrier
84	84	delegates to the network, consistent with the requirements of
85	85	Subsection (b), and the reporting requirements for each function;
86	86	(2) a statement that the network and any management
87	87	contractor or third party to which the network delegates a function
88	88	will perform all delegated functions in full compliance with all
89	89	requirements of this chapter, the Texas Workers' Compensation Act,
90	90	and rules of the commissioner or the commissioner of workers'
91	91	compensation;
92	92	(3) a provision that the contract:
93	93	(A) may not be terminated without cause by either
94	94	party without 90 days' prior written notice; and
95	95	(B) must be terminated immediately if cause
96	96	exists;
97	97	(4) a hold-harmless provision stating that the
98	98	network, a management contractor, a third party to which the
99	99	network delegates a function, and the network's contracted
100	100	providers are prohibited from billing or attempting to collect any
101	101	amounts from employees for health care services under any
102	102	circumstances, including the insolvency of the carrier or the
103	103	network, except as provided by Section 1305.451(b)(6);
104	104	(5) a statement that the carrier retains ultimate
105	105	responsibility for ensuring that all delegated functions and all
106	106	management contractor functions are performed in accordance with
107	107	applicable statutes and rules and that the contract may not be
108	108	construed to limit in any way the carrier's responsibility,
109	109	including financial responsibility, to comply with all statutory
110	110	and regulatory requirements;
111	111	(6) a statement that the network's role is to provide
112	112	the services described under Subsection (b) as well as any other
113	113	services or functions delegated by the carrier, including functions
114	114	delegated to a management contractor, subject to the carrier's
115	115	oversight and monitoring of the network's performance;
116	116	(7) a requirement that the network provide the
117	117	carrier, at least monthly and in a form usable for audit purposes,
118	118	the data necessary for the carrier to comply with reporting
119	119	requirements of the department and the division of workers'
120	120	compensation with respect to any services provided under the
121	121	contract, as determined by commissioner rules;
122	122	(8) a requirement that the carrier, the network, any
123	123	management contractor, and any third party to which the network
124	124	delegates a function comply with the data reporting requirements of
125	125	the Texas Workers' Compensation Act and rules of the commissioner
126	126	of workers' compensation;
127	127	(9) a contingency plan under which the carrier would,
128	128	in the event of termination of the contract or a failure to perform,
129	129	reassume one or more functions of the network under the contract,
130	130	including functions related to:
131	131	(A) payments to providers and notification to
132	132	employees;
133	133	(B) quality of care;
134	134	(C) utilization review;
135	135	[(D) retrospective review;] and
136	136	(D) [(E)] continuity of care, including a plan
137	137	for identifying and transitioning employees to new providers;
138	138	(10) a provision that requires that any agreement by
139	139	which the network delegates any function to a management contractor
140	140	or any third party be in writing, and that such an agreement require
141	141	the delegated third party or management contractor to be subject to
142	142	all the requirements of this subchapter;
143	143	(11) a provision that requires the network to provide
144	144	to the department the license number of a management contractor or
145	145	any delegated third party who performs a function that requires a
146	146	license as a utilization review agent under Chapter 4201 or any
147	147	other license under this code or another insurance law of this
148	148	state;
149	149	(12) an acknowledgment that:
150	150	(A) any management contractor or third party to
151	151	whom the network delegates a function must perform in compliance
152	152	with this chapter and other applicable statutes and rules, and that
153	153	the management contractor or third party is subject to the
154	154	carrier's and the network's oversight and monitoring of its
155	155	performance; and
156	156	(B) if the management contractor or the third
157	157	party fails to meet monitoring standards established to ensure that
158	158	functions delegated to the management contractor or the third party
159	159	under the delegation contract are in full compliance with all
160	160	statutory and regulatory requirements, the carrier or the network
161	161	may cancel the delegation of one or more delegated functions;
162	162	(13) a requirement that the network and any management
163	163	contractor or third party to which the network delegates a function
164	164	provide all necessary information to allow the carrier to provide
165	165	information to employees as required by Section 1305.451; and
166	166	(14) a provision that requires the network, in
167	167	contracting with a third party directly or through another third
168	168	party, to require the third party to permit the commissioner to
169	169	examine at any time any information the commissioner believes is
170	170	relevant to the third party's financial condition or the ability of
171	171	the network to meet the network's responsibilities in connection
172	172	with any function the third party performs or has been delegated.
173	173	SECTION 4. The heading to Subchapter H, Chapter 1305,
174	174	Insurance Code, is amended to read as follows:
175	175	SUBCHAPTER H. UTILIZATION REVIEW[; RETROSPECTIVE REVIEW]
176	176	SECTION 5. Section 1305.351, Insurance Code, is amended to
177	177	read as follows:
178	178	Sec. 1305.351. UTILIZATION REVIEW [AND RETROSPECTIVE
179	179	REVIEW] IN NETWORK. (a) The requirements of Chapter 4201 apply to
180	180	utilization review conducted in relation to claims in a workers'
181	181	compensation health care network. In the event of a conflict
182	182	between Chapter 4201 and this chapter, this chapter controls.
183	183	(b) Any screening criteria used for utilization review [or
184	184	retrospective review] related to a workers' compensation health
185	185	care network must be consistent with the network's treatment
186	186	guidelines.
187	187	(c) The preauthorization requirements of Section 413.014,
188	188	Labor Code, and commissioner of workers' compensation rules adopted
189	189	under that section, do not apply to health care provided through a
190	190	workers' compensation network. If a network or carrier uses a
191	191	preauthorization process within a network, the requirements of this
192	192	subchapter and commissioner rules apply. A network or an insurance
193	193	carrier may not require preauthorization of treatments and services
194	194	for a medical emergency.
195	195	(d) Notwithstanding Section 4201.152, a utilization review
196	196	agent or an insurance carrier that uses doctors to perform reviews
197	197	of health care services provided under this chapter, including
198	198	utilization review [and retrospective review], or peer reviews
199	199	under Section 408.0231(g), Labor Code, may only use doctors
200	200	licensed to practice in this state.
201	201	SECTION 6. Section 1305.353(a), Insurance Code, is amended
202	202	to read as follows:
203	203	(a) The entity performing utilization review [or
204	204	retrospective review] shall notify the employee or the employee's
205	205	representative, if any, and the requesting provider of a
206	206	determination made in a utilization review [or retrospective
207	207	review].
208	208	SECTION 7. Sections 4201.002(1) and (13), Insurance Code,
209	209	are amended to read as follows:
210	210	(1) "Adverse determination" means a determination by a
211	211	utilization review agent that health care services provided or
212	212	proposed to be provided to a patient are not medically necessary or
213	213	are experimental or investigational.
214	214	(13) "Utilization review" includes [means] a system
215	215	for prospective, [or] concurrent, or retrospective review of the
216	216	medical necessity and appropriateness of health care services and
217	217	a system for prospective, concurrent, or retrospective review to
218	218	determine the experimental or investigational nature of health care
219	219	services [being provided or proposed to be provided to an
220	220	individual in this state]. The term does not include a review in
221	221	response to an elective request for clarification of coverage.
222	222	SECTION 8. Section 4201.051, Insurance Code, is amended to
223	223	read as follows:
224	224	Sec. 4201.051. PERSONS PROVIDING INFORMATION ABOUT SCOPE OF
225	225	COVERAGE OR BENEFITS. This chapter does not apply to a person who:
226	226	(1) provides information to an enrollee about scope of
227	227	coverage or benefits provided under a health insurance policy or
228	228	health benefit plan; and
229	229	(2) does not determine whether a particular health
230	230	care service provided or to be provided to an enrollee is:
231	231	(A) medically necessary or appropriate; or
232	232	(B) experimental or investigational.
233	233	SECTION 9. Section 4201.206, Insurance Code, is amended to
234	234	read as follows:
235	235	Sec. 4201.206. OPPORTUNITY TO DISCUSS TREATMENT BEFORE
236	236	ADVERSE DETERMINATION. Subject to the notice requirements of
237	237	Subchapter G, before an adverse determination is issued by a
238	238	utilization review agent who questions the medical necessity or
239	239	appropriateness, or the experimental or investigational nature, of
240	240	a health care service [issues an adverse determination], the agent
241	241	shall provide the health care provider who ordered the service a
242	242	reasonable opportunity to discuss with a physician the patient's
243	243	treatment plan and the clinical basis for the agent's
244	244	determination.
245	245	SECTION 10. Section 4201.401, Insurance Code, is amended by
246	246	adding Subsection (c) to read as follows:
247	247	(c) The utilization review agent shall comply with the
248	248	independent review organization's determination regarding the
249	249	experimental or investigational nature of health care items and
250	250	services for an enrollee.
251	251	SECTION 11. Section 4201.456, Insurance Code, is amended
252	252	to read as follows:
253	253	Sec. 4201.456. OPPORTUNITY TO DISCUSS TREATMENT BEFORE
254	254	ADVERSE DETERMINATION. Subject to the notice requirements of
255	255	Subchapter G, before an adverse determination is issued by a
256	256	specialty utilization review agent who questions the medical
257	257	necessity or appropriateness, or the experimental or
258	258	investigational nature, of a health care service [issues an adverse
259	259	determination], the agent shall provide the health care provider
260	260	who ordered the service a reasonable opportunity to discuss the
261	261	patient's treatment plan and the clinical basis for the agent's
262	262	determination with a health care provider who is of the same
263	263	specialty as the agent.
264	264	SECTION 12. Section 401.011(38-a), Labor Code, is amended
265	265	to read as follows:
266	266	(38-a) "Retrospective review" means the utilization
267	267	review process of reviewing the medical necessity and
268	268	reasonableness of health care that has been provided to an injured
269	269	employee [has the meaning assigned by Chapter 1305, Insurance
270	270	Code].
271	271	SECTION 13. Section 408.0043(a), Labor Code, is amended to
272	272	read as follows:
273	273	(a) This section applies to a person, other than a
274	274	chiropractor or a dentist, who performs health care services under
275	275	this title as:
276	276	(1) a doctor performing peer review;
277	277	(2) a doctor performing a utilization review of a
278	278	health care service provided to an injured employee[, including a
279	279	retrospective review];
280	280	(3) a doctor performing an independent review of a
281	281	health care service provided to an injured employee[, including a
282	282	retrospective review];
283	283	(4) a designated doctor;
284	284	(5) a doctor performing a required medical
285	285	examination; or
286	286	(6) a doctor serving as a member of the medical quality
287	287	review panel.
288	288	SECTION 14. Section 408.0044(a), Labor Code, is amended to
289	289	read as follows:
290	290	(a) This section applies to a dentist who performs dental
291	291	services under this title as:
292	292	(1) a doctor performing peer review of dental
293	293	services;
294	294	(2) a doctor performing a utilization review of a
295	295	dental service provided to an injured employee[, including a
296	296	retrospective review];
297	297	(3) a doctor performing an independent review of a
298	298	dental service provided to an injured employee[, including a
299	299	retrospective review]; or
300	300	(4) a doctor performing a required dental examination.
301	301	SECTION 15. Section 408.0045(a), Labor Code, is amended to
302	302	read as follows:
303	303	(a) This section applies to a chiropractor who performs
304	304	chiropractic services under this title as:
305	305	(1) a doctor performing peer review of chiropractic
306	306	services;
307	307	(2) a doctor performing a utilization review of a
308	308	chiropractic service provided to an injured employee[, including a
309	309	retrospective review];
310	310	(3) a doctor performing an independent review of a
311	311	chiropractic service provided to an injured employee[, including a
312	312	retrospective review];
313	313	(4) a designated doctor providing chiropractic
314	314	services;
315	315	(5) a doctor performing a required
316	316	medical examination; or
317	317	(6) a chiropractor serving as a member of the medical
318	318	quality review panel.
319	319	SECTION 16. Section 408.023(h), Labor Code, is amended to
320	320	read as follows:
321	321	(h) Notwithstanding Section 4201.152, Insurance Code, a
322	322	utilization review agent or an insurance carrier that uses doctors
323	323	to perform reviews of health care services provided under this
324	324	subtitle, including utilization review [and retrospective review],
325	325	may only use doctors licensed to practice in this state.
326	326	SECTION 17. Section 413.031(e-3), Labor Code, is amended to
327	327	read as follows:
328	328	(e-3) Notwithstanding Subsections (d) and (e) of this
329	329	section or Chapters 4201 and 4202, Insurance Code, a doctor, other
330	330	than a dentist or a chiropractor, who performs a utilization review
331	331	or an independent review[, including a retrospective review,] of a
332	332	health care service provided to an injured employee is subject to
333	333	Section 408.0043. A dentist who performs a utilization review or
334	334	an independent review[, including a retrospective review,] of a
335	335	dental service provided to an injured employee is subject to
336	336	Section 408.0044. A chiropractor who performs a utilization
337	337	review or an independent review[, including a retrospective
338	338	review,] of a chiropractic service provided to an injured employee
339	339	is subject to Section 408.0045.
340	340	SECTION 18. The following laws are repealed:
341	341	(1) Section 1305.004(a)(21), Insurance Code;
342	342	(2) Section 1305.352, Insurance Code; and
343	343	(3) Subchapter K, Chapter 4201, Insurance Code.
344	344	SECTION 19. This Act applies only to a health benefit plan
345	345	delivered, issued for delivery, or renewed on or after January 1,
346	346	2010. A health benefit plan delivered, issued for delivery, or
347	347	renewed before January 1, 2010, is governed by the law as it existed
348	348	immediately before the effective date of this Act, and that law is
349	349	continued in effect for that purpose.
350	350	SECTION 20. The change in law made by this Act applies only
351	351	to a claim for workers' compensation benefits based on a
352	352	compensable injury that occurs on or after the effective date of
353	353	this Act. A claim based on a compensable injury that occurs before
354	354	that date is governed by the law in effect on the date the
355	355	compensable injury occurred, and the former law is continued in
356	356	effect for that purpose.
357	357	SECTION 21. This Act takes effect September 1, 2009.