By: Bonnen of Galveston, Guillen H.B. No. 2327
A BILL TO BE ENTITLED
AN ACT
relating to preauthorization of certain medical care and health
care services by certain health benefit plan issuers and to the
regulation of utilization review, independent review, and peer
review for health benefit plan and workers' compensation coverage.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PREAUTHORIZATION
SECTION 1.01. Section 843.348(b), Insurance Code, is
amended to read as follows:
(b) A health maintenance organization that uses a
preauthorization process for health care services shall provide
each participating physician or provider, not later than the fifth
[10th] business day after the date a request is made, a list of
health care services that [do not] require preauthorization and
information concerning the preauthorization process.
SECTION 1.02. Subchapter J, Chapter 843, Insurance Code, is
amended by adding Sections 843.3481, 843.3482, 843.3483, and
843.3484 to read as follows:
Sec. 843.3481. POSTING OF PREAUTHORIZATION REQUIREMENTS.
(a) A health maintenance organization that uses a preauthorization
process for health care services shall make the requirements and
information about the preauthorization process readily accessible
to enrollees, physicians, providers, and the general public by
posting the requirements and information on the health maintenance
organization's Internet website.
(b) The preauthorization requirements and information
described by Subsection (a) must:
(1) be posted:
(A) conspicuously in a location on the Internet
website that does not require the use of a log-in or other input of
personal information to view the information; and
(B) in a format that is easily searchable and
accessible;
(2) be written in plain language that is easily
understandable by enrollees, physicians, providers, and the
general public;
(3) include a detailed description of the
preauthorization process and procedure; and
(4) include an accurate and current list of the health
care services for which the health maintenance organization
requires preauthorization that includes the following information
specific to each service:
(A) the effective date of the preauthorization
requirement;
(B) a list or description of any supporting
documentation that the health maintenance organization requires
from the physician or provider ordering or requesting the service
to approve a request for that service;
(C) the applicable screening criteria using
Current Procedural Terminology codes and International
Classification of Diseases codes; and
(D) statistics regarding preauthorization
approval and denial rates for the service in the preceding year and
for each previous year the preauthorization requirement was in
effect, including statistics in the following categories:
(i) physician or provider type and
specialty, if any;
(ii) indication offered;
(iii) reasons for request denial;
(iv) denials overturned on internal appeal;
(v) denials overturned on external appeal;
and
(vi) total annual preauthorization
requests, approvals, and denials for the service.
Sec. 843.3482. CHANGES TO PREAUTHORIZATION REQUIREMENTS.
(a) Except as provided by Subsection (b), not later than the 60th
day before the date a new or amended preauthorization requirement
takes effect, a health maintenance organization that uses a
preauthorization process for health care services shall provide
each participating physician or provider written notice of the new
or amended preauthorization requirement and disclose the new or
amended requirement in the health maintenance organization's
newsletter or network bulletin, if any.
(b) For a change in a preauthorization requirement or
process that removes a service from the list of health care services
requiring preauthorization or amends a preauthorization
requirement in a way that is less burdensome to enrollees or
participating physicians or providers, a health maintenance
organization shall provide each participating physician or
provider written notice of the change in the preauthorization
requirement and disclose the change in the health maintenance
organization's newsletter or network bulletin, if any, not later
than the fifth day before the date the change takes effect.
(c) Not later than the fifth day before the date a new or
amended preauthorization requirement takes effect, a health
maintenance organization shall update its Internet website to
disclose the change to the health maintenance organization's
preauthorization requirements or process and the date and time the
change is effective.
Sec. 843.3483. REMEDY FOR NONCOMPLIANCE; AUTOMATIC WAIVER.
In addition to any other penalty or remedy provided by law, a health
maintenance organization that uses a preauthorization process for
health care services that violates this subchapter with respect to
a required publication, notice, or response regarding its
preauthorization requirements, including by failing to comply with
any applicable deadline for the publication, notice, or response,
waives the health maintenance organization's preauthorization
requirements with respect to any health care service affected by
the violation, and any health care service affected by the
violation is considered preauthorized by the health maintenance
organization.
Sec. 843.3484. EFFECT OF PREAUTHORIZATION WAIVER. A waiver
of preauthorization requirements under Section 843.3483 may not be
construed to:
(1) authorize a physician or provider to provide
health care services outside of the physician's or provider's
applicable scope of practice as defined by state law; or
(2) require the health maintenance organization to pay
for a health care service provided outside of the physician's or
provider's applicable scope of practice as defined by state law.
SECTION 1.03. Section 1301.135(a), Insurance Code, is
amended to read as follows:
(a) An insurer that uses a preauthorization process for
medical care or [and] health care services shall provide to each
preferred provider, not later than the fifth [10th] business day
after the date a request is made, a list of medical care and health
care services that require preauthorization and information
concerning the preauthorization process.
SECTION 1.04. Subchapter C-1, Chapter 1301, Insurance Code,
is amended by adding Sections 1301.1351, 1301.1352, 1301.1353, and
1301.1354 to read as follows:
Sec. 1301.1351. POSTING OF PREAUTHORIZATION REQUIREMENTS.
(a) An insurer that uses a preauthorization process for medical
care or health care services shall make the requirements and
information about the preauthorization process readily accessible
to insureds, physicians, health care providers, and the general
public by posting the requirements and information on the insurer's
Internet website.
(b) The preauthorization requirements and information
described by Subsection (a) must:
(1) be posted:
(A) conspicuously in a location on the Internet
website that does not require the use of a log-in or other input of
personal information to view the information; and
(B) in a format that is easily searchable and
accessible;
(2) be written in plain language that is easily
understandable by insureds, physicians, health care providers, and
the general public;
(3) include a detailed description of the
preauthorization process and procedure; and
(4) include an accurate and current list of medical
care and health care services for which the insurer requires
preauthorization that includes the following information specific
to each service:
(A) the effective date of the preauthorization
requirement;
(B) a list or description of any supporting
documentation that the insurer requires from the physician or
health care provider ordering or requesting the service to approve
a request for the service;
(C) the applicable screening criteria using
Current Procedural Terminology codes and International
Classification of Diseases codes; and
(D) statistics regarding the insurer's
preauthorization approval and denial rates for the medical care or
health care service in the preceding year and for each previous year
the preauthorization requirement was in effect, including
statistics in the following categories:
(i) physician or health care provider type
and specialty, if any;
(ii) indication offered;
(iii) reasons for request denial;
(iv) denials overturned on internal appeal;
(v) denials overturned on external appeal;
and
(vi) total annual preauthorization
requests, approvals, and denials for the service.
(c) The provisions of this section may not be waived,
voided, or nullified by contract.
Sec. 1301.1352. CHANGES TO PREAUTHORIZATION REQUIREMENTS.
(a) Except as provided by Subsection (b), not later than the 60th
day before the date a new or amended preauthorization requirement
takes effect, an insurer that uses a preauthorization process for
medical care or health care services shall provide to each
preferred provider written notice of the new or amended
preauthorization requirement and disclose the new or amended
requirement in the insurer's newsletter or network bulletin, if
any.
(b) For a change in a preauthorization requirement or
process that removes a service from the list of medical care or
health care services requiring preauthorization or amends a
preauthorization requirement in a way that is less burdensome to
insureds, physicians, or health care providers, an insurer shall
provide each preferred provider written notice of the change in the
preauthorization requirement and disclose the change in the
insurer's newsletter or network bulletin, if any, not later than
the fifth day before the date the change takes effect.
(c) Not later than the fifth day before the date a new or
amended preauthorization requirement takes effect, an insurer
shall update its Internet website to disclose the change to the
insurer's preauthorization requirements or process and the date and
time the change is effective.
(d) The provisions of this section may not be waived,
voided, or nullified by contract.
Sec. 1301.1353. REMEDY FOR NONCOMPLIANCE; AUTOMATIC
WAIVER. (a) In addition to any other penalty or remedy provided by
law, an insurer that uses a preauthorization process for medical
care or health care services that violates this subchapter with
respect to a required publication, notice, or response regarding
its preauthorization requirements, including by failing to comply
with any applicable deadline for the publication, notice, or
response, waives the insurer's preauthorization requirements with
respect to any medical care or health care service affected by the
violation, and any medical care or health care service affected by
the violation is considered preauthorized by the insurer.
(b) The provisions of this section may not be waived,
voided, or nullified by contract.
Sec. 1301.1354. EFFECT OF PREAUTHORIZATION WAIVER. (a) A
waiver of preauthorization requirements under Section 1301.1353
may not be construed to:
(1) authorize a physician or health care provider to
provide medical care or health care services outside of the
physician's or health care provider's applicable scope of practice
as defined by state law; or
(2) require the insurer to pay for a medical care or
health care service provided outside of the
physician's or health
care provider's applicable scope of practice as defined by state
law.
(b) The provisions of this section may not be waived,
voided, or nullified by contract.
ARTICLE 2. UTILIZATION, INDEPENDENT, AND PEER REVIEW
SECTION 2.01. Section 4201.002(12), Insurance Code, is
amended to read as follows:
(12) "Provider of record" means the physician or other
health care provider with primary responsibility for the health
care[, treatment, and] services provided to or requested on behalf
of an enrollee or the physician or other health care provider that
has provided or has been requested to provide the health care
services to the enrollee. The term includes a health care facility
where the health care services are [if treatment is] provided on an
inpatient or outpatient basis.
SECTION 2.02. Sections 4201.151 and 4201.152, Insurance
Code, are amended to read as follows:
Sec. 4201.151. UTILIZATION REVIEW PLAN. A utilization
review agent's utilization review plan, including reconsideration
and appeal requirements, must be reviewed by a physician licensed
to practice medicine in this state and conducted in accordance with
standards developed with input from appropriate health care
providers and approved by a physician licensed to practice medicine
in this state.
Sec. 4201.152. UTILIZATION REVIEW UNDER [DIRECTION OF]
PHYSICIAN. A utilization review agent shall conduct utilization
review under the supervision and direction of a physician licensed
to practice medicine in this [by a] state [licensing agency in the
United States].
SECTION 2.03. Subchapter D, Chapter 4201, Insurance Code,
is amended by adding Section 4201.1525 to read as follows:
Sec. 4201.1525. UTILIZATION REVIEW BY PHYSICIAN. (a) A
utilization review agent that uses a physician to conduct
utilization review may only use a physician licensed to practice
medicine in this state.
(b) A payor that conducts utilization review on the payor's
own behalf is subject to Subsection (a) as if the payor were a
utilization review agent.
SECTION 2.04. Section 4201.153(d), Insurance Code, is
amended to read as follows:
(d) Screening criteria must be used to determine only
whether to approve the requested treatment. Before issuing an
adverse determination, a utilization review agent must obtain a
determination of medical necessity by referring a proposed [A]
denial of requested treatment [must be referred] to:
(1) an appropriate physician, dentist, or other health
care provider; or
(2) if the treatment is requested, ordered, provided,
or to be provided by a physician, a physician licensed to practice
medicine in this state who is of the same or a similar specialty as
that physician [to determine medical necessity].
SECTION 2.05. Sections 4201.155, 4201.206, and 4201.251,
Insurance Code, are amended to read as follows:
Sec. 4201.155. LIMITATION ON NOTICE REQUIREMENTS AND REVIEW
PROCEDURES. (a) A utilization review agent may not establish or
impose a notice requirement or other review procedure that is
contrary to the requirements of the health insurance policy or
health benefit plan.
(b) This section may not be construed to release a health
insurance policy or health benefit plan from full compliance with
this chapter or other applicable law.
Sec. 4201.206. OPPORTUNITY TO DISCUSS TREATMENT BEFORE
ADVERSE DETERMINATION. (a) Subject to Subsection (b) and the
notice requirements of Subchapter G, before an adverse
determination is issued by a utilization review agent who questions
the medical necessity, the [or] appropriateness, or the
experimental or investigational nature[,] of a health care service,
the agent shall provide the health care provider who ordered,
requested, provided, or is to provide the service a reasonable
opportunity to discuss with a physician licensed to practice
medicine in this state the patient's treatment plan and the
clinical basis for the agent's determination.
(b) If the health care service described by Subsection (a)
was ordered, requested, or provided, or is to be provided by a
physician, the opportunity described by that subsection must be
with a physician licensed to practice medicine in this state who is
of the same or a similar specialty as that physician.
Sec. 4201.251. DELEGATION OF UTILIZATION REVIEW. A
utilization review agent may delegate utilization review to
qualified personnel in the hospital or other health care facility
in which the health care services to be reviewed were or are to be
provided. The delegation does not release the agent from the full
responsibility for compliance with this chapter or other applicable
law, including the conduct of those to whom utilization review has
been delegated.
SECTION 2.06. Sections 4201.252(a) and (b), Insurance Code,
are amended to read as follows:
(a) Personnel employed by or under contract with a
utilization review agent to perform utilization review must be
appropriately trained and qualified and meet the requirements of
this chapter and other applicable law, including licensing
requirements.
(b) Personnel, other than a physician licensed to practice
medicine in this state, who obtain oral or written information
directly from a patient's physician or other health care provider
regarding the patient's specific medical condition, diagnosis, or
treatment options or protocols must be a nurse, physician
assistant, or other health care provider qualified and licensed or
otherwise authorized by law and the appropriate licensing agency in
this state to provide the requested service.
SECTION 2.07. Section 4201.356, Insurance Code, is amended
to read as follows:
Sec. 4201.356. DECISION BY PHYSICIAN REQUIRED; SPECIALTY
REVIEW. (a) The procedures for appealing an adverse determination
must provide that a physician licensed to practice medicine in this
state makes the decision on the appeal, except as provided by
Subsection (b) or (c).
(b) For a health care service ordered, requested, provided,
or to be provided by a physician, the procedures for appealing an
adverse determination must provide that a physician licensed to
practice medicine in this state who is of the same or a similar
specialty as that physician makes the decision on appeal, except as
provided by Subsection (c).
(c) If not later than the 10th working day after the date an
appeal is denied the enrollee's health care provider states in
writing good cause for having a particular type of specialty
provider review the case, a health care provider who is of the same
or a similar specialty as the health care provider who would
typically manage the medical or dental condition, procedure, or
treatment under consideration for review and who is licensed or
otherwise authorized by the appropriate licensing agency in this
state to manage the medical or dental condition, procedure, or
treatment shall review the decision denying the appeal. The
specialty review must be completed within 15 working days of the
date the health care provider's request for specialty review is
received.
SECTION 2.08. Sections 4201.357(a), (a-1), and (a-2),
Insurance Code, are amended to read as follows:
(a) The procedures for appealing an adverse determination
must include, in addition to the written appeal, a procedure for an
expedited appeal of a denial of emergency care or a denial of
continued hospitalization. That procedure must include a review by
a health care provider who:
(1) has not previously reviewed the case; [and]
(2) is of the same or a similar specialty as the health
care provider who would typically manage the medical or dental
condition, procedure, or treatment under review in the appeal; and
(3) for a review of a health care service:
(A) ordered, requested, provided, or to be
provided by a health care provider who is not a physician, is
licensed or otherwise authorized by the appropriate licensing
agency in this state to provide the service in this state; or
(B) ordered, requested, provided, or to be
provided by a physician, is licensed to practice medicine in this
state.
(a-1) The procedures for appealing an adverse determination
must include, in addition to the written appeal and the appeal
described by Subsection (a), a procedure for an expedited appeal of
a denial of prescription drugs or intravenous infusions for which
the patient is receiving benefits under the health insurance
policy. That procedure must include a review by a health care
provider who:
(1) has not previously reviewed the case; [and]
(2) is of the same or a similar specialty as the health
care provider who would typically manage the medical or dental
condition, procedure, or treatment under review in the appeal; and
(3) for a review of a health care service:
(A) ordered, requested, provided, or to be
provided by a health care provider who is not a physician, is
licensed or otherwise authorized by the appropriate licensing
agency in this state to provide the service in this state; or
(B) ordered, requested, provided, or to be
provided by a physician, is licensed to practice medicine in this
state.
(a-2) An adverse determination under Section 1369.0546 is
entitled to an expedited appeal. The physician or, if appropriate,
other health care provider deciding the appeal must consider
atypical diagnoses and the needs of atypical patient populations.
The physician must be licensed to practice medicine in this state
and the health care provider must be licensed or otherwise
authorized by the appropriate licensing agency in this state.
SECTION 2.09. Section 4201.359, Insurance Code, is amended
by adding Subsection (c) to read as follows:
(c) A physician described by Subsection (b)(2) must comply
with this chapter and other applicable laws and be licensed to
practice medicine in this state. A health care provider described
by Subsection (b)(2) must comply with this chapter and other
applicable laws and be licensed or otherwise authorized by the
appropriate licensing agency in this state.
SECTION 2.10. Sections 4201.453 and 4201.454, Insurance
Code, are amended to read as follows:
Sec. 4201.453. UTILIZATION REVIEW PLAN. A specialty
utilization review agent's utilization review plan, including
reconsideration and appeal requirements, must be:
(1) reviewed by a health care provider of the
appropriate specialty who is licensed or otherwise authorized to
provide the specialty health care service in this state; and
(2) conducted in accordance with standards developed
with input from a health care provider of the appropriate specialty
who is licensed or otherwise authorized to provide the specialty
health care service in this state.
Sec. 4201.454. UTILIZATION REVIEW UNDER DIRECTION OF
PROVIDER OF SAME SPECIALTY. A specialty utilization review agent
shall conduct utilization review under the direction of a health
care provider who is of the same specialty as the agent and who is
licensed or otherwise authorized to provide the specialty health
care service in this [by a] state [licensing agency in the United
States].
SECTION 2.11. Sections 4201.455(a) and (b), Insurance Code,
are amended to read as follows:
(a) Personnel who are employed by or under contract with a
specialty utilization review agent to perform utilization review
must be appropriately trained and qualified and meet the
requirements of this chapter and other applicable law of this
state, including licensing laws.
(b) Personnel who obtain oral or written information
directly from a physician or other health care provider must be a
nurse, physician assistant, or other health care provider of the
same specialty as the agent and who are licensed or otherwise
authorized to provide the specialty health care service in this [by
a] state [licensing agency in the United States].
SECTION 2.12. Sections 4201.456 and 4201.457, Insurance
Code, are amended to read as follows:
Sec. 4201.456. OPPORTUNITY TO DISCUSS TREATMENT BEFORE
ADVERSE DETERMINATION. Subject to the notice requirements of
Subchapter G, before an adverse determination is issued by a
specialty utilization review agent who questions the medical
necessity, the [or] appropriateness, or the experimental or
investigational nature[,] of a health care service, the agent shall
provide the health care provider who ordered, requested, provided,
or is to provide the service a reasonable opportunity to discuss the
patient's treatment plan and the clinical basis for the agent's
determination with a health care provider who is:
(1) of the same specialty as the agent; and
(2) licensed or otherwise authorized to provide the
specialty health care service in this state.
Sec. 4201.457. APPEAL DECISIONS. A specialty utilization
review agent shall comply with the requirement that a physician or
other health care provider who makes the decision in an appeal of an
adverse determination must be:
(1) of the same or a similar specialty as the health
care provider who would typically manage the specialty condition,
procedure, or treatment under review in the appeal; and
(2) licensed or otherwise authorized to provide the
health care service in this state.
SECTION 2.13. Section 4202.002, Insurance Code, is amended
by adding Subsection (b-1) to read as follows:
(b-1) The standards adopted under Subsection (b)(3) must:
(1) ensure that personnel conducting independent
review for a health care service are licensed or otherwise
authorized to provide the same or a similar health care service in
this state; and
(2) be consistent with the licensing laws of this
state.
SECTION 2.14. Section 408.0043, Labor Code, is amended by
adding Subsection (c) to read as follows:
(c) Notwithstanding Subsection (b), if a health care
service is requested, ordered, provided, or to be provided by a
physician, a person described by Subsection (a)(1), (2), or (3) who
reviews the service with respect to a specific workers'
compensation case must be of the same or a similar specialty as that
physician.
SECTION 2.15. Subchapter B, Chapter 151, Occupations Code,
is amended by adding Section 151.057 to read as follows:
Sec. 151.057. APPLICATION TO UTILIZATION REVIEW. (a) In
this section:
(1) "Adverse determination" means a determination
that health care services provided or proposed to be provided to an
individual in this state by a physician or at the request or order
of a physician are not medically necessary or are experimental or
investigational.
(2) "Payor" has the meaning assigned by Section
4201.002, Insurance Code.
(3) "Utilization review" has the meaning assigned by
Section 4201.002, Insurance Code, and the term includes a review
of:
(A) a step therapy protocol exception request
under Section 1369.0546, Insurance Code; and
(B) prescription drug benefits under Section
1369.056, Insurance Code.
(4) "Utilization review agent" means:
(A) an entity that conducts utilization review
under Chapter 4201, Insurance Code;
(B) a payor that conducts utilization review on
the payor's own behalf or on behalf of another person or entity;
(C) an independent review organization certified
under Chapter 4202, Insurance Code; or
(D) a workers' compensation health care network
certified under Chapter 1305, Insurance Code.
(b) A person who does the following is considered to be
engaged in the practice of medicine in this state and is subject to
appropriate regulation by the board:
(1) makes on behalf of a utilization review agent or
directs a utilization review agent to make an adverse
determination, including:
(A) an adverse determination made on
reconsideration of a previous adverse determination;
(B) an adverse determination in an independent
review under Subchapter I, Chapter 4201, Insurance Code;
(C) a refusal to provide benefits for a
prescription drug under Section 1369.056, Insurance Code; or
(D) a denial of a step therapy protocol exception
request under Section 1369.0546, Insurance Code;
(2) serves as a medical director of an independent
review organization certified under Chapter 4202, Insurance Code;
(3) reviews or approves a utilization review plan
under Section 4201.151, Insurance Code;
(4) supervises and directs utilization review under
Section 4201.152, Insurance Code; or
(5) discusses a patient's treatment plan and the
clinical basis for an adverse determination before the adverse
determination is issued, as provided by Section 4201.206, Insurance
Code.
(c) For purposes of Subsection (b), a denial of health care
services based on the failure to request prospective or concurrent
review is not considered an adverse determination.
SECTION 2.16. Section 1305.351(d), Insurance Code, is
amended to read as follows:
(d) A [Notwithstanding Section 4201.152, a] utilization
review agent or an insurance carrier that uses doctors to perform
reviews of health care services provided under this chapter,
including utilization review, or peer reviews under Section
408.0231(g), Labor Code, may only use doctors licensed to practice
in this state.
SECTION 2.17. Section 1305.355(d), Insurance Code, is
amended to read as follows:
(d) The department shall assign the review request to an
independent review organization. An [Notwithstanding Section
4202.002, an] independent review organization that uses doctors to
perform reviews of health care services under this chapter may only
use doctors licensed to practice in this state.
SECTION 2.18. Section 408.023(h), Labor Code, is amended to
read as follows:
(h) A [Notwithstanding Section 4201.152, Insurance Code, a]
utilization review agent or an insurance carrier that uses doctors
to perform reviews of health care services provided under this
subtitle, including utilization review, may only use doctors
licensed to practice in this state.
SECTION 2.19. Section 413.031(e-2), Labor Code, is amended
to read as follows:
(e-2) An [Notwithstanding Section 4202.002, Insurance Code,
an] independent review organization that uses doctors to perform
reviews of health care services provided under this title may only
use doctors licensed to practice in this state.
ARTICLE 3. TRANSITIONS; EFFECTIVE DATE
SECTION 3.01. The changes in law made by Article 1 of this
Act apply only to a request for preauthorization of medical care or
health care services made on or after January 1, 2020, under a
health benefit plan delivered, issued for delivery, or renewed on
or after that date. A request for preauthorization of medical care
or health care services made before January 1, 2020, or on or after
January 1, 2020, under a health benefit plan delivered, issued for
delivery, or renewed before that date is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 3.02. The changes in law made by Article 2 of this
Act apply only to utilization, independent, or peer review
requested on or after the effective date of this Act. Utilization,
independent, or peer review requested before the effective date of
this Act is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 3.03. This Act takes effect September 1, 2019.