Texas 2015 - 84th Regular

Texas House Bill HB3366 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	84R21116 EES-F
2	2	By: Sheffield, Miller of Fort Bend, Guerra H.B. No. 3366
3	3	Substitute the following for H.B. No. 3366:
4	4	By: Crownover C.S.H.B. No. 3366
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the reimbursement of prescription drugs under Medicaid
10	10	and the child health plan program.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 533.005(a), Government Code, as amended
13	13	by S.B. No. 219, Acts of the 84th Legislature, Regular Session,
14	14	2015, is amended to read as follows:
15	15	(a) A contract between a managed care organization and the
16	16	commission for the organization to provide health care services to
17	17	recipients must contain:
18	18	(1) procedures to ensure accountability to the state
19	19	for the provision of health care services, including procedures for
20	20	financial reporting, quality assurance, utilization review, and
21	21	assurance of contract and subcontract compliance;
22	22	(2) capitation rates that ensure the cost-effective
23	23	provision of quality health care;
24	24	(3) a requirement that the managed care organization
25	25	provide ready access to a person who assists recipients in
26	26	resolving issues relating to enrollment, plan administration,
27	27	education and training, access to services, and grievance
28	28	procedures;
29	29	(4) a requirement that the managed care organization
30	30	provide ready access to a person who assists providers in resolving
31	31	issues relating to payment, plan administration, education and
32	32	training, and grievance procedures;
33	33	(5) a requirement that the managed care organization
34	34	provide information and referral about the availability of
35	35	educational, social, and other community services that could
36	36	benefit a recipient;
37	37	(6) procedures for recipient outreach and education;
38	38	(7) a requirement that the managed care organization
39	39	make payment to a physician or provider for health care services
40	40	rendered to a recipient under a managed care plan on any claim for
41	41	payment that is received with documentation reasonably necessary
42	42	for the managed care organization to process the claim:
43	43	(A) not later than:
44	44	(i) the 10th day after the date the claim is
45	45	received if the claim relates to services provided by a nursing
46	46	facility, intermediate care facility, or group home;
47	47	(ii) the 30th day after the date the claim
48	48	is received if the claim relates to the provision of long-term
49	49	services and supports not subject to Subparagraph (i); and
50	50	(iii) the 45th day after the date the claim
51	51	is received if the claim is not subject to Subparagraph (i) or (ii);
52	52	or
53	53	(B) within a period, not to exceed 60 days,
54	54	specified by a written agreement between the physician or provider
55	55	and the managed care organization;
56	56	(7-a) a requirement that the managed care organization
57	57	demonstrate to the commission that the organization pays claims
58	58	described by Subdivision (7)(A)(ii) on average not later than the
59	59	21st day after the date the claim is received by the organization;
60	60	(8) a requirement that the commission, on the date of a
61	61	recipient's enrollment in a managed care plan issued by the managed
62	62	care organization, inform the organization of the recipient's
63	63	Medicaid certification date;
64	64	(9) a requirement that the managed care organization
65	65	comply with Section 533.006 as a condition of contract retention
66	66	and renewal;
67	67	(10) a requirement that the managed care organization
68	68	provide the information required by Section 533.012 and otherwise
69	69	comply and cooperate with the commission's office of inspector
70	70	general and the office of the attorney general;
71	71	(11) a requirement that the managed care
72	72	organization's usages of out-of-network providers or groups of
73	73	out-of-network providers may not exceed limits for those usages
74	74	relating to total inpatient admissions, total outpatient services,
75	75	and emergency room admissions determined by the commission;
76	76	(12) if the commission finds that a managed care
77	77	organization has violated Subdivision (11), a requirement that the
78	78	managed care organization reimburse an out-of-network provider for
79	79	health care services at a rate that is equal to the allowable rate
80	80	for those services, as determined under Sections 32.028 and
81	81	32.0281, Human Resources Code;
82	82	(13) a requirement that, notwithstanding any other
83	83	law, including Sections 843.312 and 1301.052, Insurance Code, the
84	84	organization:
85	85	(A) use advanced practice registered nurses and
86	86	physician assistants in addition to physicians as primary care
87	87	providers to increase the availability of primary care providers in
88	88	the organization's provider network; and
89	89	(B) treat advanced practice registered nurses
90	90	and physician assistants in the same manner as primary care
91	91	physicians with regard to:
92	92	(i) selection and assignment as primary
93	93	care providers;
94	94	(ii) inclusion as primary care providers in
95	95	the organization's provider network; and
96	96	(iii) inclusion as primary care providers
97	97	in any provider network directory maintained by the organization;
98	98	(14) a requirement that the managed care organization
99	99	reimburse a federally qualified health center or rural health
100	100	clinic for health care services provided to a recipient outside of
101	101	regular business hours, including on a weekend day or holiday, at a
102	102	rate that is equal to the allowable rate for those services as
103	103	determined under Section 32.028, Human Resources Code, if the
104	104	recipient does not have a referral from the recipient's primary
105	105	care physician;
106	106	(15) a requirement that the managed care organization
107	107	develop, implement, and maintain a system for tracking and
108	108	resolving all provider appeals related to claims payment, including
109	109	a process that will require:
110	110	(A) a tracking mechanism to document the status
111	111	and final disposition of each provider's claims payment appeal;
112	112	(B) the contracting with physicians who are not
113	113	network providers and who are of the same or related specialty as
114	114	the appealing physician to resolve claims disputes related to
115	115	denial on the basis of medical necessity that remain unresolved
116	116	subsequent to a provider appeal;
117	117	(C) the determination of the physician resolving
118	118	the dispute to be binding on the managed care organization and
119	119	provider; and
120	120	(D) the managed care organization to allow a
121	121	provider with a claim that has not been paid before the time
122	122	prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
123	123	claim;
124	124	(16) a requirement that a medical director who is
125	125	authorized to make medical necessity determinations is available to
126	126	the region where the managed care organization provides health care
127	127	services;
128	128	(17) a requirement that the managed care organization
129	129	ensure that a medical director and patient care coordinators and
130	130	provider and recipient support services personnel are located in
131	131	the South Texas service region, if the managed care organization
132	132	provides a managed care plan in that region;
133	133	(18) a requirement that the managed care organization
134	134	provide special programs and materials for recipients with limited
135	135	English proficiency or low literacy skills;
136	136	(19) a requirement that the managed care organization
137	137	develop and establish a process for responding to provider appeals
138	138	in the region where the organization provides health care services;
139	139	(20) a requirement that the managed care organization:
140	140	(A) develop and submit to the commission, before
141	141	the organization begins to provide health care services to
142	142	recipients, a comprehensive plan that describes how the
143	143	organization's provider network will provide recipients sufficient
144	144	access to:
145	145	(i) preventive care;
146	146	(ii) primary care;
147	147	(iii) specialty care;
148	148	(iv) after-hours urgent care;
149	149	(v) chronic care;
150	150	(vi) long-term services and supports;
151	151	(vii) nursing services; and
152	152	(viii) therapy services, including
153	153	services provided in a clinical setting or in a home or
154	154	community-based setting; and
155	155	(B) regularly, as determined by the commission,
156	156	submit to the commission and make available to the public a report
157	157	containing data on the sufficiency of the organization's provider
158	158	network with regard to providing the care and services described
159	159	under Paragraph (A) and specific data with respect to Paragraphs
160	160	(A)(iii), (vi), (vii), and (viii) on the average length of time
161	161	between:
162	162	(i) the date a provider makes a referral for
163	163	the care or service and the date the organization approves or denies
164	164	the referral; and
165	165	(ii) the date the organization approves a
166	166	referral for the care or service and the date the care or service is
167	167	initiated;
168	168	(21) a requirement that the managed care organization
169	169	demonstrate to the commission, before the organization begins to
170	170	provide health care services to recipients, that:
171	171	(A) the organization's provider network has the
172	172	capacity to serve the number of recipients expected to enroll in a
173	173	managed care plan offered by the organization;
174	174	(B) the organization's provider network
175	175	includes:
176	176	(i) a sufficient number of primary care
177	177	providers;
178	178	(ii) a sufficient variety of provider
179	179	types;
180	180	(iii) a sufficient number of providers of
181	181	long-term services and supports and specialty pediatric care
182	182	providers of home and community-based services; and
183	183	(iv) providers located throughout the
184	184	region where the organization will provide health care services;
185	185	and
186	186	(C) health care services will be accessible to
187	187	recipients through the organization's provider network to a
188	188	comparable extent that health care services would be available to
189	189	recipients under a fee-for-service or primary care case management
190	190	model of Medicaid managed care;
191	191	(22) a requirement that the managed care organization
192	192	develop a monitoring program for measuring the quality of the
193	193	health care services provided by the organization's provider
194	194	network that:
195	195	(A) incorporates the National Committee for
196	196	Quality Assurance's Healthcare Effectiveness Data and Information
197	197	Set (HEDIS) measures;
198	198	(B) focuses on measuring outcomes; and
199	199	(C) includes the collection and analysis of
200	200	clinical data relating to prenatal care, preventive care, mental
201	201	health care, and the treatment of acute and chronic health
202	202	conditions and substance abuse;
203	203	(23) subject to Subsection (a-1), a requirement that
204	204	the managed care organization develop, implement, and maintain an
205	205	outpatient pharmacy benefit plan for its enrolled recipients:
206	206	(A) that exclusively employs the vendor drug
207	207	program formulary and preserves the state's ability to reduce
208	208	waste, fraud, and abuse under Medicaid;
209	209	(B) that adheres to the applicable preferred drug
210	210	list adopted by the commission under Section 531.072;
211	211	(C) that includes the prior authorization
212	212	procedures and requirements prescribed by or implemented under
213	213	Sections 531.073(b), (c), and (g) for the vendor drug program;
214	214	(D) for purposes of which the managed care
215	215	organization:
216	216	(i) may not negotiate or collect rebates
217	217	associated with pharmacy products on the vendor drug program
218	218	formulary; and
219	219	(ii) may not receive drug rebate or pricing
220	220	information that is confidential under Section 531.071;
221	221	(E) that complies with the prohibition under
222	222	Section 531.089;
223	223	(F) under which the managed care organization may
224	224	not prohibit, limit, or interfere with a recipient's selection of a
225	225	pharmacy or pharmacist of the recipient's choice for the provision
226	226	of pharmaceutical services under the plan through the imposition of
227	227	different copayments;
228	228	(G) that allows the managed care organization or
229	229	any subcontracted pharmacy benefit manager to contract with a
230	230	pharmacist or pharmacy providers separately for specialty pharmacy
231	231	services, except that:
232	232	(i) the managed care organization and
233	233	pharmacy benefit manager are prohibited from allowing exclusive
234	234	contracts with a specialty pharmacy owned wholly or partly by the
235	235	pharmacy benefit manager responsible for the administration of the
236	236	pharmacy benefit program; and
237	237	(ii) the managed care organization and
238	238	pharmacy benefit manager must adopt policies and procedures for
239	239	reclassifying prescription drugs from retail to specialty drugs,
240	240	and those policies and procedures must be consistent with rules
241	241	adopted by the executive commissioner and include notice to network
242	242	pharmacy providers from the managed care organization;
243	243	(H) under which the managed care organization may
244	244	not prevent a pharmacy or pharmacist from participating as a
245	245	provider if the pharmacy or pharmacist agrees to comply with the
246	246	financial terms and conditions of the contract as well as other
247	247	reasonable administrative and professional terms and conditions of
248	248	the contract;
249	249	(I) under which the managed care organization may
250	250	include mail-order pharmacies in its networks, but may not require
251	251	enrolled recipients to use those pharmacies, and may not charge an
252	252	enrolled recipient who opts to use this service a fee, including
253	253	postage and handling fees;
254	254	(J) under which the managed care organization or
255	255	pharmacy benefit manager, as applicable, must pay claims in
256	256	accordance with Section 843.339, Insurance Code; and
257	257	(K) under which the managed care organization or
258	258	pharmacy benefit manager, as applicable:
259	259	(i) must comply with Section 533.00512 as a
260	260	condition of contract retention and renewal [to place a drug on a
261	261	maximum allowable cost list, must ensure that:
262	262	[(a) the drug is listed as "A" or "B"
263	263	rated in the most recent version of the United States Food and Drug
264	264	Administration's Approved Drug Products with Therapeutic
265	265	Equivalence Evaluations, also known as the Orange Book, has an "NR"
266	266	or "NA" rating or a similar rating by a nationally recognized
267	267	reference; and
268	268	[(b) the drug is generally available
269	269	for purchase by pharmacies in the state from national or regional
270	270	wholesalers and is not obsolete];
271	271	(ii) must provide to a network pharmacy
272	272	provider, at the time a contract is entered into or renewed with the
273	273	network pharmacy provider, the sources used to determine the actual
274	274	acquisition [maximum allowable] cost (AAC) pricing [for the maximum
275	275	allowable cost list specific to that provider];
276	276	(iii) must review and update drug
277	277	reimbursement [maximum allowable cost] price information at least
278	278	once every seven days to reflect any modification of the actual
279	279	acquisition [maximum allowable] cost (AAC) pricing or the factors
280	280	used to determine that pricing;
281	281	(iv) [must, in formulating the maximum
282	282	allowable cost price for a drug, use only the price of the drug and
283	283	drugs listed as therapeutically equivalent in the most recent
284	284	version of the United States Food and Drug Administration's
285	285	Approved Drug Products with Therapeutic Equivalence Evaluations,
286	286	also known as the Orange Book;
287	287	[(v) must establish a process for
288	288	eliminating products from the maximum allowable cost list or
289	289	modifying maximum allowable cost prices in a timely manner to
290	290	remain consistent with pricing changes and product availability in
291	291	the marketplace;
292	292	[(vi)] must:
293	293	(a) provide a procedure under which a
294	294	network pharmacy provider may challenge a listed actual acquisition
295	295	[maximum allowable] cost (AAC) price for a drug;
296	296	(b) respond to a challenge not later
297	297	than the 15th day after the date the challenge is made;
298	298	(c) if the challenge is successful,
299	299	make an adjustment in the drug price effective on the date the
300	300	challenge is resolved, and make the adjustment applicable to all
301	301	similarly situated network pharmacy providers, as determined by the
302	302	managed care organization or pharmacy benefit manager, as
303	303	appropriate;
304	304	(d) if the challenge is denied,
305	305	provide the reason for the denial; and
306	306	(e) report to the commission every 90
307	307	days the total number of challenges that were made and denied in the
308	308	preceding 90-day period for each [maximum allowable cost list] drug
309	309	for which a challenge was denied during the period; and
310	310	(v) [(vii) must notify the commission not
311	311	later than the 21st day after implementing a practice of using a
312	312	maximum allowable cost list for drugs dispensed at retail but not by
313	313	mail; and
314	314	[(viii)] must provide a process for each of
315	315	its network pharmacy providers to readily access the drug
316	316	reimbursement price [maximum allowable cost] list specific to that
317	317	provider;
318	318	(24) a requirement that the managed care organization
319	319	and any entity with which the managed care organization contracts
320	320	for the performance of services under a managed care plan disclose,
321	321	at no cost, to the commission and, on request, the office of the
322	322	attorney general all discounts, incentives, rebates, fees, free
323	323	goods, bundling arrangements, and other agreements affecting the
324	324	net cost of goods or services provided under the plan; and
325	325	(25) a requirement that the managed care organization
326	326	not implement significant, nonnegotiated, across-the-board
327	327	provider reimbursement rate reductions unless:
328	328	(A) subject to Subsection (a-3), the
329	329	organization has the prior approval of the commission to make the
330	330	reduction; or
331	331	(B) the rate reductions are based on changes to
332	332	the Medicaid fee schedule or cost containment initiatives
333	333	implemented by the commission.
334	334	SECTION 2. Subchapter A, Chapter 533, Government Code, is
335	335	amended by adding Section 533.00512 to read as follows:
336	336	Sec. 533.00512. REIMBURSEMENT METHODOLOGY FOR PRESCRIPTION
337	337	DRUGS. (a) A managed care organization that contracts with the
338	338	commission under this chapter or a pharmacy benefit manager
339	339	administering a pharmacy benefit program on behalf of the managed
340	340	care organization shall reimburse a pharmacy or pharmacist that
341	341	dispenses a prescribed prescription drug to a recipient for not
342	342	less than the lesser of:
343	343	(1) the average of Texas pharmacies' actual
344	344	acquisition cost (AAC) for the drug, plus a dispensing fee that is
345	345	not less than the dispensing fee adopted by the executive
346	346	commissioner; or
347	347	(2) the amount claimed by the pharmacy or pharmacist,
348	348	including the gross amount due or the usual and customary charge to
349	349	the public for the drug.
350	350	(b) The methodology adopted by the executive commissioner
351	351	to determine Texas pharmacies' actual acquisition cost (AAC) for
352	352	purposes of Subsection (a) must be consistent with the actual
353	353	prices Texas pharmacies pay to acquire prescription drugs marketed
354	354	or sold by a specific manufacturer and may be based on the National
355	355	Average Drug Acquisition Cost published by the Centers for Medicare
356	356	and Medicaid Services or another publication approved by the
357	357	executive commissioner.
358	358	(c) The dispensing fee adopted by the executive
359	359	commissioner for purposes of Subsection (a) must be equal to at
360	360	least $6 and must be based on the savings achieved by the state by
361	361	the use of actual acquisition cost (AAC) pricing.
362	362	(d) The executive commissioner shall develop a process for
363	363	the periodic study of Texas pharmacies' actual acquisition cost
364	364	(AAC) for prescription drugs and publish the results of each study
365	365	on the commission's Internet website.
366	366	SECTION 3. Subchapter D, Chapter 62, Health and Safety
367	367	Code, is amended by adding Section 62.160 to read as follows:
368	368	Sec. 62.160. REIMBURSEMENT METHODOLOGY FOR PRESCRIPTION
369	369	DRUGS. A managed care organization providing pharmacy benefits
370	370	under the child health plan program or a pharmacy benefit manager
371	371	administering a pharmacy benefit program on behalf of the managed
372	372	care organization shall comply with Section 533.00512, Government
373	373	Code.
374	374	SECTION 4. Section 32.0462(a), Human Resources Code, as
375	375	amended by S.B. No. 219, Acts of the 84th Legislature, Regular
376	376	Session, 2015, is amended to read as follows:
377	377	(a) Notwithstanding any other provision of state law, the
378	378	commission shall:
379	379	(1) use the reimbursement methodology under Section
380	380	533.00512, Government Code, to determine [consider a nationally
381	381	recognized, unbiased pricing standard for prescription drugs in
382	382	determining] reimbursement amounts under the vendor drug program;
383	383	and
384	384	(2) update reimbursement amounts under the vendor drug
385	385	program at least weekly.
386	386	SECTION 5. Section 533.005(a-2), Government Code, is
387	387	repealed.
388	388	SECTION 6. If before implementing any provision of this Act
389	389	a state agency determines that a waiver or authorization from a
390	390	federal agency is necessary for implementation of that provision,
391	391	the agency affected by the provision shall request the waiver or
392	392	authorization and may delay implementing that provision until the
393	393	waiver or authorization is granted.
394	394	SECTION 7. This Act takes effect March 1, 2016.