Texas 2019 - 86th Regular

Texas Senate Bill SB1096 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 1096
	1	+	By: Perry, et al. S.B. No. 1096
	2	+	(Oliverson, Coleman, Sheffield, Leach)
2	3
3	4
	5	+	A BILL TO BE ENTITLED
4	6		AN ACT
5		-	relating to the Medicaid managed ~~care program, including the~~
6		-	~~provision of~~ pharmacy benefits.
	7	+	relating to certain benefits provided through the Medicaid managed
	8	+	care program, including pharmacy benefits.
7	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	10		SECTION 1. Section 533.00253, Government Code, is amended
9		-	by adding Subsections (m) and (n) to read as follows:
10		-	(m) The advisory committee or a successor committee shall
11		-	explore the feasibility of adopting a private duty nursing
12		-	assessment for use in the STAR Kids managed care program and provide
13		-	recommendations to the commission on adopting a private duty
14		-	nursing assessment tool that would streamline the documentation for
15		-	prior authorization of private duty nursing. This subsection
16		-	expires September 1, 2021.
17		-	(n) The commission, at least once every two years, shall
	11	+	by adding Subsection (i) to read as follows:
	12	+	(i) The commission, at least once every two years, shall
18	13		conduct a utilization review on a sample of cases for children
19	14		enrolled in the STAR Kids managed care program to ensure that all
20	15		imposed clinical prior authorizations are based on publicly
21	16		available clinical criteria and are not being used to negatively
22	17		impact a recipient's access to care.
23		-	SECTION 2. Subchapter A, Chapter 533, Government Code, is
24		-	amended by adding Section 533.002821 to read as follows:
25		-	Sec. 533.002821. PRIOR AUTHORIZATION PROCEDURES FOR
26		-	HOSPITALIZED RECIPIENT. In addition to the requirements of Section
27		-	533.005, a contract between a managed care organization and the
28		-	commission described by that section must require that,
29		-	notwithstanding any other law, the organization review and issue
30		-	determinations on prior authorization requests with respect to a
31		-	recipient who is hospitalized at the time of the request according
32		-	to the following time frames:
33		-	(1) within one business day after receiving the
34		-	request, except as provided by Subdivisions (2) and (3);
35		-	(2) within 72 hours after receiving the request if the
36		-	request is submitted by a provider of acute care inpatient services
37		-	for services or equipment necessary to discharge the recipient from
38		-	an inpatient facility; or
39		-	(3) within one hour after receiving the request if the
40		-	request is related to poststabilization care or a life-threatening
41		-	condition.
42		-	SECTION 3. Section 533.005, Government Code, is amended by
43		-	amending Subsection (a) and adding Subsection (g) to read as
44		-	follows:
	18	+	SECTION 2. Section 533.005(a), Government Code, is amended
	19	+	to read as follows:
45	20		(a) A contract between a managed care organization and the
46	21		commission for the organization to provide health care services to
47	22		recipients must contain:
48	23		(1) procedures to ensure accountability to the state
49	24		for the provision of health care services, including procedures for
50	25		financial reporting, quality assurance, utilization review, and
51	26		assurance of contract and subcontract compliance;
52	27		(2) capitation rates that ensure the cost-effective
53	28		provision of quality health care;
54	29		(3) a requirement that the managed care organization
55	30		provide ready access to a person who assists recipients in
56	31		resolving issues relating to enrollment, plan administration,
57	32		education and training, access to services, and grievance
58	33		procedures;
59	34		(4) a requirement that the managed care organization
60	35		provide ready access to a person who assists providers in resolving
61	36		issues relating to payment, plan administration, education and
62	37		training, and grievance procedures;
63	38		(5) a requirement that the managed care organization
64	39		provide information and referral about the availability of
65	40		educational, social, and other community services that could
66	41		benefit a recipient;
67	42		(6) procedures for recipient outreach and education;
68	43		(7) a requirement that the managed care organization
69	44		make payment to a physician or provider for health care services
70	45		rendered to a recipient under a managed care plan on any claim for
71	46		payment that is received with documentation reasonably necessary
72	47		for the managed care organization to process the claim:
73	48		(A) not later than:
74	49		(i) the 10th day after the date the claim is
75	50		received if the claim relates to services provided by a nursing
76	51		facility, intermediate care facility, or group home;
77	52		(ii) the 30th day after the date the claim
78	53		is received if the claim relates to the provision of long-term
79	54		services and supports not subject to Subparagraph (i); and
80	55		(iii) the 45th day after the date the claim
81	56		is received if the claim is not subject to Subparagraph (i) or (ii);
82	57		or
83	58		(B) within a period, not to exceed 60 days,
84	59		specified by a written agreement between the physician or provider
85	60		and the managed care organization;
86	61		(7-a) a requirement that the managed care organization
87	62		demonstrate to the commission that the organization pays claims
88	63		described by Subdivision (7)(A)(ii) on average not later than the
89	64		21st day after the date the claim is received by the organization;
90	65		(8) a requirement that the commission, on the date of a
91	66		recipient's enrollment in a managed care plan issued by the managed
92	67		care organization, inform the organization of the recipient's
93	68		Medicaid certification date;
94	69		(9) a requirement that the managed care organization
95	70		comply with Section 533.006 as a condition of contract retention
96	71		and renewal;
97	72		(10) a requirement that the managed care organization
98	73		provide the information required by Section 533.012 and otherwise
99	74		comply and cooperate with the commission's office of inspector
100	75		general and the office of the attorney general;
101	76		(11) a requirement that the managed care
102	77		organization's usages of out-of-network providers or groups of
103	78		out-of-network providers may not exceed limits for those usages
104	79		relating to total inpatient admissions, total outpatient services,
105	80		and emergency room admissions determined by the commission;
106	81		(12) if the commission finds that a managed care
107	82		organization has violated Subdivision (11), a requirement that the
108	83		managed care organization reimburse an out-of-network provider for
109	84		health care services at a rate that is equal to the allowable rate
110	85		for those services, as determined under Sections 32.028 and
111	86		32.0281, Human Resources Code;
112	87		(13) a requirement that, notwithstanding any other
113	88		law, including Sections 843.312 and 1301.052, Insurance Code, the
114	89		organization:
115	90		(A) use advanced practice registered nurses and
116	91		physician assistants in addition to physicians as primary care
117	92		providers to increase the availability of primary care providers in
118	93		the organization's provider network; and
119	94		(B) treat advanced practice registered nurses
120	95		and physician assistants in the same manner as primary care
121	96		physicians with regard to:
122	97		(i) selection and assignment as primary
123	98		care providers;
124	99		(ii) inclusion as primary care providers in
125	100		the organization's provider network; and
126	101		(iii) inclusion as primary care providers
127	102		in any provider network directory maintained by the organization;
128	103		(14) a requirement that the managed care organization
129	104		reimburse a federally qualified health center or rural health
130	105		clinic for health care services provided to a recipient outside of
131	106		regular business hours, including on a weekend day or holiday, at a
132	107		rate that is equal to the allowable rate for those services as
133	108		determined under Section 32.028, Human Resources Code, if the
134	109		recipient does not have a referral from the recipient's primary
135	110		care physician;
136	111		(15) a requirement that the managed care organization
137	112		develop, implement, and maintain a system for tracking and
138	113		resolving all provider appeals related to claims payment, including
139	114		a process that will require:
140	115		(A) a tracking mechanism to document the status
141	116		and final disposition of each provider's claims payment appeal;
142	117		(B) the contracting with physicians who are not
143	118		network providers and who are of the same or related specialty as
144	119		the appealing physician to resolve claims disputes related to
145	120		denial on the basis of medical necessity that remain unresolved
146	121		subsequent to a provider appeal;
147	122		(C) the determination of the physician resolving
148	123		the dispute to be binding on the managed care organization and
149	124		provider; and
150	125		(D) the managed care organization to allow a
151	126		provider with a claim that has not been paid before the time
152	127		prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
153	128		claim;
154	129		(16) a requirement that a medical director who is
155	130		authorized to make medical necessity determinations is available to
156	131		the region where the managed care organization provides health care
157	132		services;
158	133		(17) a requirement that the managed care organization
159	134		ensure that a medical director and patient care coordinators and
160	135		provider and recipient support services personnel are located in
161	136		the South Texas service region, if the managed care organization
162	137		provides a managed care plan in that region;
163	138		(18) a requirement that the managed care organization
164	139		provide special programs and materials for recipients with limited
165	140		English proficiency or low literacy skills;
166	141		(19) a requirement that the managed care organization
167	142		develop and establish a process for responding to provider appeals
168	143		in the region where the organization provides health care services;
169	144		(20) a requirement that the managed care organization:
170	145		(A) develop and submit to the commission, before
171	146		the organization begins to provide health care services to
172	147		recipients, a comprehensive plan that describes how the
173	148		organization's provider network complies with the provider access
174	149		standards established under Section 533.0061;
175	150		(B) as a condition of contract retention and
176	151		renewal:
177	152		(i) continue to comply with the provider
178	153		access standards established under Section 533.0061; and
179	154		(ii) make substantial efforts, as
180	155		determined by the commission, to mitigate or remedy any
181	156		noncompliance with the provider access standards established under
182	157		Section 533.0061;
183	158		(C) pay liquidated damages for each failure, as
184	159		determined by the commission, to comply with the provider access
185	160		standards established under Section 533.0061 in amounts that are
186	161		reasonably related to the noncompliance; and
187	162		(D) regularly, as determined by the commission,
188	163		submit to the commission and make available to the public a report
189	164		containing data on the sufficiency of the organization's provider
190	165		network with regard to providing the care and services described
191	166		under Section 533.0061(a) and specific data with respect to access
192	167		to primary care, specialty care, long-term services and supports,
193	168		nursing services, and therapy services on the average length of
194	169		time between:
195	170		(i) the date a provider requests prior
196	171		authorization for the care or service and the date the organization
197	172		approves or denies the request; and
198	173		(ii) the date the organization approves a
199	174		request for prior authorization for the care or service and the date
200	175		the care or service is initiated;
201	176		(21) a requirement that the managed care organization
202	177		demonstrate to the commission, before the organization begins to
203	178		provide health care services to recipients, that, subject to the
204	179		provider access standards established under Section 533.0061:
205	180		(A) the organization's provider network has the
206	181		capacity to serve the number of recipients expected to enroll in a
207	182		managed care plan offered by the organization;
208	183		(B) the organization's provider network
209	184		includes:
210	185		(i) a sufficient number of primary care
211	186		providers;
212	187		(ii) a sufficient variety of provider
213	188		types;
214	189		(iii) a sufficient number of providers of
215	190		long-term services and supports and specialty pediatric care
216	191		providers of home and community-based services; and
217	192		(iv) providers located throughout the
218	193		region where the organization will provide health care services;
219	194		and
220	195		(C) health care services will be accessible to
221	196		recipients through the organization's provider network to a
222	197		comparable extent that health care services would be available to
223	198		recipients under a fee-for-service or primary care case management
224	199		model of Medicaid managed care;
225	200		(22) a requirement that the managed care organization
226	201		develop a monitoring program for measuring the quality of the
227	202		health care services provided by the organization's provider
228	203		network that:
229	204		(A) incorporates the National Committee for
230	205		Quality Assurance's Healthcare Effectiveness Data and Information
231		-	Set (HEDIS) measures or, as applicable, the national core
232		-	indicators adult consumer survey and the national core indicators
233		-	child family survey for individuals with an intellectual or
234		-	developmental disability;
	206	+	Set (HEDIS) measures;
235	207		(B) focuses on measuring outcomes; and
236	208		(C) includes the collection and analysis of
237	209		clinical data relating to prenatal care, preventive care, mental
238	210		health care, and the treatment of acute and chronic health
239	211		conditions and substance abuse;
240	212		(23) subject to Subsection (a-1), a requirement that
241	213		the managed care organization develop, implement, and maintain an
242	214		outpatient pharmacy benefit plan for its enrolled recipients:
243	215		(A) that, except as provided by Paragraph
244	216		(L)(ii), exclusively employs the vendor drug program formulary and
245	217		preserves the state's ability to reduce waste, fraud, and abuse
246	218		under Medicaid;
247	219		(B) that adheres to the applicable preferred drug
248	220		list adopted by the commission under Section 531.072;
249	221		(C) that, except as provided by Paragraph (L)(i),
250	222		includes the prior authorization procedures and requirements
251	223		prescribed by or implemented under Sections 531.073(b), (c), and
252	224		(g) for the vendor drug program;
253	225		(D) for purposes of which the managed care
254	226		organization:
255	227		(i) may not negotiate or collect rebates
256	228		associated with pharmacy products on the vendor drug program
257	229		formulary; and
258	230		(ii) may not receive drug rebate or pricing
259	231		information that is confidential under Section 531.071;
260	232		(E) that complies with the prohibition under
261	233		Section 531.089;
262	234		(F) under which the managed care organization may
263	235		not prohibit, limit, or interfere with a recipient's selection of a
264	236		pharmacy or pharmacist of the recipient's choice for the provision
265	237		of pharmaceutical services under the plan through the imposition of
266	238		different copayments;
267	239		(G) that allows the managed care organization or
268	240		any subcontracted pharmacy benefit manager to contract with a
269	241		pharmacist or pharmacy providers separately for specialty pharmacy
270	242		services, except that:
271	243		(i) the managed care organization and
272	244		pharmacy benefit manager are prohibited from allowing exclusive
273	245		contracts with a specialty pharmacy owned wholly or partly by the
274	246		pharmacy benefit manager responsible for the administration of the
275	247		pharmacy benefit program; and
276	248		(ii) the managed care organization and
277	249		pharmacy benefit manager must adopt policies and procedures for
278	250		reclassifying prescription drugs from retail to specialty drugs,
279	251		and those policies and procedures must be consistent with rules
280	252		adopted by the executive commissioner and include notice to network
281	253		pharmacy providers from the managed care organization;
282	254		(H) under which the managed care organization may
283	255		not prevent a pharmacy or pharmacist from participating as a
284	256		provider if the pharmacy or pharmacist agrees to comply with the
285	257		financial terms and conditions of the contract as well as other
286	258		reasonable administrative and professional terms and conditions of
287	259		the contract;
288	260		(I) under which the managed care organization may
289	261		include mail-order pharmacies in its networks, but may not require
290	262		enrolled recipients to use those pharmacies, and may not charge an
291	263		enrolled recipient who opts to use this service a fee, including
292	264		postage and handling fees;
293	265		(J) under which the managed care organization or
294	266		pharmacy benefit manager, as applicable, must pay claims in
295	267		accordance with Section 843.339, Insurance Code; [and]
296	268		(K) under which the managed care organization or
297	269		pharmacy benefit manager, as applicable:
298	270		(i) to place a drug on a maximum allowable
299	271		cost list, must ensure that:
300	272		(a) the drug is listed as "A" or "B"
301	273		rated in the most recent version of the United States Food and Drug
302	274		Administration's Approved Drug Products with Therapeutic
303	275		Equivalence Evaluations, also known as the Orange Book, has an "NR"
304	276		or "NA" rating or a similar rating by a nationally recognized
305	277		reference; and
306	278		(b) the drug is generally available
307	279		for purchase by pharmacies in the state from national or regional
308	280		wholesalers and is not obsolete;
309	281		(ii) must provide to a network pharmacy
310	282		provider, at the time a contract is entered into or renewed with the
311	283		network pharmacy provider, the sources used to determine the
312	284		maximum allowable cost pricing for the maximum allowable cost list
313	285		specific to that provider;
314	286		(iii) must review and update maximum
315	287		allowable cost price information at least once every seven days to
316	288		reflect any modification of maximum allowable cost pricing;
317	289		(iv) must, in formulating the maximum
318	290		allowable cost price for a drug, use only the price of the drug and
319	291		drugs listed as therapeutically equivalent in the most recent
320	292		version of the United States Food and Drug Administration's
321	293		Approved Drug Products with Therapeutic Equivalence Evaluations,
322	294		also known as the Orange Book;
323	295		(v) must establish a process for
324	296		eliminating products from the maximum allowable cost list or
325	297		modifying maximum allowable cost prices in a timely manner to
326	298		remain consistent with pricing changes and product availability in
327	299		the marketplace;
328	300		(vi) must:
329	301		(a) provide a procedure under which a
330	302		network pharmacy provider may challenge a listed maximum allowable
331	303		cost price for a drug;
332	304		(b) respond to a challenge not later
333	305		than the 15th day after the date the challenge is made;
334	306		(c) if the challenge is successful,
335	307		make an adjustment in the drug price effective on the date the
336	308		challenge is resolved[,] and make the adjustment applicable to all
337	309		similarly situated network pharmacy providers, as determined by the
338	310		managed care organization or pharmacy benefit manager, as
339	311		appropriate;
340	312		(d) if the challenge is denied,
341	313		provide the reason for the denial; and
342	314		(e) report to the commission every 90
343	315		days the total number of challenges that were made and denied in the
344	316		preceding 90-day period for each maximum allowable cost list drug
345	317		for which a challenge was denied during the period;
346	318		(vii) must notify the commission not later
347	319		than the 21st day after implementing a practice of using a maximum
348	320		allowable cost list for drugs dispensed at retail but not by mail;
349	321		and
350	322		(viii) must provide a process for each of
351	323		its network pharmacy providers to readily access the maximum
352	324		allowable cost list specific to that provider; and
353	325		(L) under which the managed care organization or
354	326		pharmacy benefit manager, as applicable:
355	327		(i) may not require a prior authorization,
356	328		other than a clinical prior authorization or a prior authorization
357	329		imposed by the commission to minimize the opportunity for waste,
358	330		fraud, or abuse, for or impose any other barriers to a drug that is
359	331		prescribed to a child enrolled in the STAR Kids managed care program
360	332		for a particular disease or treatment and that is on the vendor drug
361	333		program formulary or require additional prior authorization for a
362	334		drug included in the preferred drug list adopted under Section
363	335		531.072;
364	336		(ii) must provide for continued access to a
365	337		drug prescribed to a child enrolled in the STAR Kids managed care
366	338		program, regardless of whether the drug is on the vendor drug
367	339		program formulary or, if applicable on or after August 31, 2023, the
368	340		managed care organization's formulary;
369	341		(iii) may not use a protocol that requires a
370	342		child enrolled in the STAR Kids managed care program to use a
371	343		prescription drug or sequence of prescription drugs other than the
372	344		drug that the child's physician recommends for the child's
373	345		treatment before the managed care organization provides coverage
374	346		for the recommended drug; and
375	347		(iv) must pay liquidated damages to the
376	348		commission for each failure, as determined by the commission, to
377	349		comply with this paragraph in an amount that is a reasonable
378	350		forecast of the damages caused by the noncompliance;
379	351		(24) a requirement that the managed care organization
380	352		and any entity with which the managed care organization contracts
381	353		for the performance of services under a managed care plan disclose,
382	354		at no cost, to the commission and, on request, the office of the
383	355		attorney general all discounts, incentives, rebates, fees, free
384	356		goods, bundling arrangements, and other agreements affecting the
385	357		net cost of goods or services provided under the plan;
386	358		(25) a requirement that the managed care organization
387	359		not implement significant, nonnegotiated, across-the-board
388	360		provider reimbursement rate reductions unless:
389	361		(A) subject to Subsection (a-3), the
390	362		organization has the prior approval of the commission to make the
391	363		reductions [reduction]; or
392	364		(B) the rate reductions are based on changes to
393	365		the Medicaid fee schedule or cost containment initiatives
394	366		implemented by the commission; and
395	367		(26) a requirement that the managed care organization
396	368		make initial and subsequent primary care provider assignments and
397	369		changes.
398		-	(g) The commission shall provide guidance and additional
399		-	education to managed care organizations with which the commission
400		-	enters into contracts described by Subsection (a) regarding
401		-	requirements under federal law to continue to provide services
402		-	during an internal appeal, a Medicaid fair hearing, or any other
403		-	review.
404		-	SECTION 4. (a) Section 533.002821, Government Code, as
405		-	added by this Act, and Section 533.005, Government Code, as amended
406		-	by this Act, apply only to a contract between the Health and Human
407		-	Services Commission and a managed care organization under Chapter
408		-	533, Government Code, that is entered into or renewed on or after
409		-	the effective date of this Act.
410		-	(b) As soon as practicable after the effective date of this
411		-	Act but not later than September 1, 2020, the Health and Human
412		-	Services Commission shall seek to amend contracts entered into with
413		-	managed care organizations under Chapter 533, Government Code,
414		-	before the effective date of this Act to include the provisions
415		-	required by Section 533.002821, Government Code, as added by this
416		-	Act, and Section 533.005, Government Code, as amended by this Act.
417		-	SECTION 5. If before implementing any provision of this Act
	370	+	SECTION 3. Section 533.005, Government Code, as amended by
	371	+	this Act, applies to a contract entered into or renewed on or after
	372	+	the effective date of this Act. A contract entered into or renewed
	373	+	before that date is governed by the law in effect on the date the
	374	+	contract was entered into or renewed, and that law is continued in
	375	+	effect for that purpose.
	376	+	SECTION 4. If before implementing any provision of this Act
418	377		a state agency determines that a waiver or authorization from a
419	378		federal agency is necessary for implementation of that provision,
420	379		the agency affected by the provision shall request the waiver or
421	380		authorization and may delay implementing that provision until the
422	381		waiver or authorization is granted.
423		-	SECTION 6. The Health and Human Services Commission is
	382	+	SECTION 5. The Health and Human Services Commission is
424	383		required to implement a provision of this Act only if the
425	384		legislature appropriates money specifically for that purpose. If
426	385		the legislature does not appropriate money specifically for that
427	386		purpose, the commission may, but is not required to, implement a
428	387		provision of this Act using other appropriations available for that
429	388		purpose.
430		-	SECTION 7. This Act takes effect September 1, 2019.
431		-	______________________________ ______________________________
432		-	President of the Senate Speaker of the House
433		-	I hereby certify that S.B. No. 1096 passed the Senate on
434		-	May 2, 2019, by the following vote: Yeas 30, Nays 1; May 20, 2019,
435		-	Senate refused to concur in House amendments and requested
436		-	appointment of Conference Committee; May 22, 2019, House granted
437		-	request of the Senate; May 26, 2019, Senate adopted Conference
438		-	Committee Report by the following vote: Yeas 30, Nays 1.
439		-	______________________________
440		-	Secretary of the Senate
441		-	I hereby certify that S.B. No. 1096 passed the House, with
442		-	amendments, on May 17, 2019, by the following vote: Yeas 136,
443		-	Nays 10, one present not voting; May 22, 2019, House granted
444		-	request of the Senate for appointment of Conference Committee;
445		-	May 26, 2019, House adopted Conference Committee Report by the
446		-	following vote: Yeas 144, Nays 1, two present not voting.
447		-	______________________________
448		-	Chief Clerk of the House
449		-	Approved:
450		-	______________________________
451		-	Date
452		-	______________________________
453		-	Governor
	389	+	SECTION 6. This Act takes effect September 1, 2019.