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Texas Senate Bill SB2082

Texas 2019 - 86th Regular

Texas Senate Bill SB2082 Compare Versions

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11 86R14210 KFF-F
22 By: Hinojosa S.B. No. 2082
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to the Medicaid program, including the administration and
88 operation of the Medicaid managed care program.
99 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1010 SECTION 1. Subchapter C, Chapter 531, Government Code, is
1111 amended by adding Section 531.1133 to read as follows:
1212 Sec. 531.1133. PROVIDER NOT LIABLE FOR MANAGED CARE
1313 ORGANIZATION OVERPAYMENT OR DEBT. (a) If the commission's office
1414 of inspector general makes a determination to recoup an overpayment
1515 or debt from a managed care organization that contracts with the
1616 commission to provide health care services to Medicaid recipients,
1717 a provider that contracts with the managed care organization may
1818 not be held liable for the good faith provision of services under
1919 the provider's contract with the managed care organization that
2020 were provided with prior authorization.
2121 (b) This section does not:
2222 (1) limit the office of inspector general's authority
2323 to recoup an overpayment or debt from a provider that is owed by the
2424 provider as a result of the provider's failure to comply with
2525 applicable law or a contract provision, notwithstanding any prior
2626 authorization for a service provided; or
2727 (2) apply to an action brought under Chapter 36, Human
2828 Resources Code.
2929 SECTION 2. Section 533.005, Government Code, is amended by
3030 amending Subsection (a) and adding Subsection (e) to read as
3131 follows:
3232 (a) A contract between a managed care organization and the
3333 commission for the organization to provide health care services to
3434 recipients must contain:
3535 (1) procedures to ensure accountability to the state
3636 for the provision of health care services, including procedures for
3737 financial reporting, quality assurance, utilization review, and
3838 assurance of contract and subcontract compliance;
3939 (2) capitation rates that ensure access to and the
4040 cost-effective provision of quality health care;
4141 (3) a requirement that the managed care organization
4242 provide ready access to a person who assists recipients in
4343 resolving issues relating to enrollment, plan administration,
4444 education and training, access to services, and grievance
4545 procedures;
4646 (4) a requirement that the managed care organization
4747 provide ready access to a person who assists providers in resolving
4848 issues relating to payment, plan administration, education and
4949 training, and grievance procedures;
5050 (5) a requirement that the managed care organization
5151 provide information and referral about the availability of
5252 educational, social, and other community services that could
5353 benefit a recipient;
5454 (6) procedures for recipient outreach and education;
5555 (7) subject to Subdivision (7-b), a requirement that
5656 the managed care organization make payment to a physician or
5757 provider for health care services rendered to a recipient under a
5858 managed care plan offered by the managed care organization on any
5959 claim for payment that is received with documentation reasonably
6060 necessary for the managed care organization to process the claim:
6161 (A) not later than[:
6262 [(i)] the 10th day after the date the claim
6363 is received if the claim relates to services provided by a nursing
6464 facility, intermediate care facility, or group home; and
6565 (B) on average, not later than [(ii)] the 15th
6666 [30th] day after the date the claim is received if the claim,
6767 including a claim that relates to the provision of long-term
6868 services and supports, is not subject to Paragraph (A)
6969 [Subparagraph (i); and
7070 [(iii) the 45th day after the date the claim
7171 is received if the claim is not subject to Subparagraph (i) or (ii);
7272 or
7373 [(B) within a period, not to exceed 60 days,
7474 specified by a written agreement between the physician or provider
7575 and the managed care organization];
7676 (7-a) a requirement that the managed care organization
7777 demonstrate to the commission that the organization pays claims to
7878 which [described by] Subdivision (7)(B) applies [(7)(A)(ii)] on
7979 average not later than the 15th [21st] day after the date the claim
8080 is received by the organization;
8181 (7-b) a requirement that the managed care organization
8282 demonstrate to the commission that, within each provider category
8383 and service delivery area designated by the commission, the
8484 organization pays at least 98 percent of claims within the times
8585 prescribed by Subdivision (7);
8686 (7-c) a requirement that the managed care organization
8787 establish an electronic process for use by providers in submitting
8888 claims documentation that complies with Section 533.0055(b)(6) and
8989 allows providers to submit additional documentation on a claim when
9090 the organization determines the claim was not submitted with
9191 documentation reasonably necessary to process the claim;
9292 (8) a requirement that the commission, on the date of a
9393 recipient's enrollment in a managed care plan issued by the managed
9494 care organization, inform the organization of the recipient's
9595 Medicaid certification date;
9696 (9) a requirement that the managed care organization
9797 comply with Section 533.006 as a condition of contract retention
9898 and renewal;
9999 (10) a requirement that the managed care organization
100100 provide the information required by Section 533.012 and otherwise
101101 comply and cooperate with the commission's office of inspector
102102 general and the office of the attorney general;
103103 (11) a requirement that the managed care
104104 organization's utilization [usages] of out-of-network providers or
105105 groups of out-of-network providers may not exceed limits determined
106106 by the commission, including limits [for those usages] relating to:
107107 (A) total inpatient admissions, total outpatient
108108 services, and emergency room admissions [determined by the
109109 commission];
110110 (B) acute care services not described by
111111 Paragraph (A); and
112112 (C) long-term services and supports;
113113 (12) if the commission finds that a managed care
114114 organization has violated Subdivision (11), a requirement that the
115115 managed care organization reimburse an out-of-network provider for
116116 health care services at a rate that is equal to the allowable rate
117117 for those services, as determined under Sections 32.028 and
118118 32.0281, Human Resources Code;
119119 (13) a requirement that, notwithstanding any other
120120 law, including Sections 843.312 and 1301.052, Insurance Code, the
121121 organization:
122122 (A) use advanced practice registered nurses and
123123 physician assistants in addition to physicians as primary care
124124 providers to increase the availability of primary care providers in
125125 the organization's provider network; and
126126 (B) treat advanced practice registered nurses
127127 and physician assistants in the same manner as primary care
128128 physicians with regard to:
129129 (i) selection and assignment as primary
130130 care providers;
131131 (ii) inclusion as primary care providers in
132132 the organization's provider network; and
133133 (iii) inclusion as primary care providers
134134 in any provider network directory maintained by the organization;
135135 (14) a requirement that the managed care organization
136136 reimburse a federally qualified health center or rural health
137137 clinic for health care services provided to a recipient outside of
138138 regular business hours, including on a weekend day or holiday, at a
139139 rate that is equal to the allowable rate for those services as
140140 determined under Section 32.028, Human Resources Code, if the
141141 recipient does not have a referral from the recipient's primary
142142 care physician;
143143 (15) a requirement that the managed care organization
144144 develop, implement, and maintain a system for tracking and
145145 resolving all provider complaints and appeals related to claims
146146 payment and prior authorization and service denials, including a
147147 system [process] that will [require]:
148148 (A) allow providers to electronically track and
149149 determine [a tracking mechanism to document] the status and final
150150 disposition of the [each] provider's [claims payment] appeal or
151151 complaint, as applicable;
152152 (B) require the contracting with physicians or
153153 other health care providers who are not network providers and who
154154 are of the same or a related specialty as the appealing physician or
155155 other provider, as appropriate, to resolve claims disputes related
156156 to denial on the basis of medical necessity that remain unresolved
157157 subsequent to a provider appeal; and
158158 (C) require the determination of the physician or
159159 other health care provider resolving the dispute to be binding on
160160 the managed care organization and the appealing provider; [and
161161 [(D) the managed care organization to allow a
162162 provider with a claim that has not been paid before the time
163163 prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
164164 claim;]
165165 (15-a) a requirement that the managed care
166166 organization make available on the organization's Internet website
167167 summary information that is accessible to the public regarding the
168168 number of provider appeals and the disposition of those appeals,
169169 organized by provider and service types;
170170 (16) a requirement that a medical director who is
171171 authorized to make medical necessity determinations is available to
172172 the region where the managed care organization provides health care
173173 services;
174174 (17) a requirement that the managed care organization
175175 ensure that a medical director and patient care coordinators and
176176 provider and recipient support services personnel are located in
177177 the South Texas service region, if the managed care organization
178178 provides Medicaid services to recipients [a managed care plan] in
179179 that region;
180180 (18) a requirement that the managed care organization
181181 provide special programs and materials for recipients with limited
182182 English proficiency or low literacy skills;
183183 (19) a requirement that the managed care organization
184184 develop and establish a process for responding to provider appeals
185185 in the region where the organization provides health care services;
186186 (20) a requirement that the managed care organization:
187187 (A) develop and submit to the commission, before
188188 the organization begins to provide health care services to
189189 recipients, a comprehensive plan that describes how the
190190 organization's provider network complies with the provider access
191191 standards established under Section 533.0061;
192192 (B) as a condition of contract retention and
193193 renewal:
194194 (i) continue to comply with the provider
195195 access standards established under Section 533.0061; and
196196 (ii) make substantial efforts, as
197197 determined by the commission, to mitigate or remedy any
198198 noncompliance with the provider access standards established under
199199 Section 533.0061;
200200 (C) pay liquidated damages for each failure, as
201201 determined by the commission, to comply with the provider access
202202 standards established under Section 533.0061 in amounts that are
203203 reasonably related to the noncompliance; and
204204 (D) annually [regularly, as determined by the
205205 commission,] submit to the commission and make available to the
206206 public a report containing data on the sufficiency of the
207207 organization's provider network with regard to providing the care
208208 and services described under Section 533.0061(a) and specific data
209209 with respect to access to primary care, specialty care, long-term
210210 services and supports, nursing services, and therapy services on:
211211 (i) the average length of time between[:
212212 [(i)] the date a provider requests prior
213213 authorization for the care or service and the date the organization
214214 approves or denies the request; [and]
215215 (ii) the average length of time between the
216216 date the organization approves a request for prior authorization
217217 for the care or service and the date the care or service is
218218 initiated; and
219219 (iii) the number of providers who are
220220 accepting new patients;
221221 (21) a requirement that the managed care organization
222222 demonstrate to the commission, before the organization begins to
223223 provide health care services to recipients, that, subject to the
224224 provider access standards established under Section 533.0061:
225225 (A) the organization's provider network has the
226226 capacity to serve the number of recipients expected to enroll in a
227227 managed care plan offered by the organization;
228228 (B) the organization's provider network
229229 includes:
230230 (i) a sufficient number of primary care
231231 providers;
232232 (ii) a sufficient variety of provider
233233 types;
234234 (iii) a sufficient number of providers of
235235 long-term services and supports and specialty pediatric care
236236 providers of home and community-based services; and
237237 (iv) providers located throughout the
238238 region where the organization will provide health care services;
239239 and
240240 (C) health care services will be accessible to
241241 recipients through the organization's provider network to a
242242 comparable extent that health care services would be available to
243243 recipients under a fee-for-service [or primary care case
244244 management] model of Medicaid [managed care];
245245 (22) a requirement that the managed care organization
246246 develop a monitoring program for measuring the quality of the
247247 health care services provided by the organization's provider
248248 network that:
249249 (A) incorporates the National Committee for
250250 Quality Assurance's Healthcare Effectiveness Data and Information
251251 Set (HEDIS) measures;
252252 (B) focuses on measuring outcomes; and
253253 (C) includes the collection and analysis of
254254 clinical data relating to prenatal care, preventive care, mental
255255 health care, and the treatment of acute and chronic health
256256 conditions and substance abuse;
257257 (23) subject to Subsection (a-1), a requirement that
258258 the managed care organization develop, implement, and maintain an
259259 outpatient pharmacy benefit plan for its enrolled recipients:
260260 (A) that exclusively employs the vendor drug
261261 program formulary and preserves the state's ability to reduce
262262 waste, fraud, and abuse under Medicaid;
263263 (B) that adheres to the applicable preferred drug
264264 list adopted by the commission under Section 531.072;
265265 (C) that includes the prior authorization
266266 procedures and requirements prescribed by or implemented under
267267 Sections 531.073(b), (c), and (g) for the vendor drug program;
268268 (D) for purposes of which the managed care
269269 organization:
270270 (i) may not negotiate or collect rebates
271271 associated with pharmacy products on the vendor drug program
272272 formulary; and
273273 (ii) may not receive drug rebate or pricing
274274 information that is confidential under Section 531.071;
275275 (E) that complies with the prohibition under
276276 Section 531.089;
277277 (F) under which the managed care organization may
278278 not prohibit, limit, or interfere with a recipient's selection of a
279279 pharmacy or pharmacist of the recipient's choice for the provision
280280 of pharmaceutical services under the plan through the imposition of
281281 different copayments;
282282 (G) that allows the managed care organization or
283283 any subcontracted pharmacy benefit manager to contract with a
284284 pharmacist or pharmacy providers separately for specialty pharmacy
285285 services, except that:
286286 (i) the managed care organization and
287287 pharmacy benefit manager are prohibited from allowing exclusive
288288 contracts with a specialty pharmacy owned wholly or partly by the
289289 pharmacy benefit manager responsible for the administration of the
290290 pharmacy benefit program; and
291291 (ii) the managed care organization and
292292 pharmacy benefit manager must adopt policies and procedures for
293293 reclassifying prescription drugs from retail to specialty drugs,
294294 and those policies and procedures must be consistent with rules
295295 adopted by the executive commissioner and include notice to network
296296 pharmacy providers from the managed care organization;
297297 (H) under which the managed care organization may
298298 not prevent a pharmacy or pharmacist from participating as a
299299 provider if the pharmacy or pharmacist agrees to comply with the
300300 financial terms and conditions of the contract as well as other
301301 reasonable administrative and professional terms and conditions of
302302 the contract;
303303 (I) under which the managed care organization may
304304 include mail-order pharmacies in its networks, but may not require
305305 enrolled recipients to use those pharmacies, and may not charge an
306306 enrolled recipient who opts to use this service a fee, including
307307 postage and handling fees;
308308 (J) under which the managed care organization or
309309 pharmacy benefit manager, as applicable, must pay claims in
310310 accordance with Section 843.339, Insurance Code; and
311311 (K) under which the managed care organization or
312312 pharmacy benefit manager, as applicable:
313313 (i) to place a drug on a maximum allowable
314314 cost list, must ensure that:
315315 (a) the drug is listed as "A" or "B"
316316 rated in the most recent version of the United States Food and Drug
317317 Administration's Approved Drug Products with Therapeutic
318318 Equivalence Evaluations, also known as the Orange Book, has an "NR"
319319 or "NA" rating or a similar rating by a nationally recognized
320320 reference; and
321321 (b) the drug is generally available
322322 for purchase by pharmacies in this [the] state from national or
323323 regional wholesalers and is not obsolete;
324324 (ii) must provide to a network pharmacy
325325 provider, at the time a contract is entered into or renewed with the
326326 network pharmacy provider, the sources used to determine the
327327 maximum allowable cost pricing for the maximum allowable cost list
328328 specific to that provider;
329329 (iii) must review and update maximum
330330 allowable cost price information at least once every seven days to
331331 reflect any modification of maximum allowable cost pricing;
332332 (iv) must, in formulating the maximum
333333 allowable cost price for a drug, use only the price of the drug and
334334 drugs listed as therapeutically equivalent in the most recent
335335 version of the United States Food and Drug Administration's
336336 Approved Drug Products with Therapeutic Equivalence Evaluations,
337337 also known as the Orange Book;
338338 (v) must establish a process for
339339 eliminating products from the maximum allowable cost list or
340340 modifying maximum allowable cost prices in a timely manner to
341341 remain consistent with pricing changes and product availability in
342342 the marketplace;
343343 (vi) must:
344344 (a) provide a procedure under which a
345345 network pharmacy provider may challenge a listed maximum allowable
346346 cost price for a drug;
347347 (b) respond to a challenge not later
348348 than the 15th day after the date the challenge is made;
349349 (c) if the challenge is successful,
350350 make an adjustment in the drug price effective on the date the
351351 challenge is resolved[,] and make the adjustment applicable to all
352352 similarly situated network pharmacy providers, as determined by the
353353 managed care organization or pharmacy benefit manager, as
354354 appropriate;
355355 (d) if the challenge is denied,
356356 provide the reason for the denial; and
357357 (e) report to the commission every 90
358358 days the total number of challenges that were made and denied in the
359359 preceding 90-day period for each maximum allowable cost list drug
360360 for which a challenge was denied during the period;
361361 (vii) must notify the commission not later
362362 than the 21st day after implementing a practice of using a maximum
363363 allowable cost list for drugs dispensed at retail but not by mail;
364364 and
365365 (viii) must provide a process for each of
366366 its network pharmacy providers to readily access the maximum
367367 allowable cost list specific to that provider;
368368 (24) a requirement that the managed care organization
369369 and any entity with which the managed care organization contracts
370370 for the performance of services under a managed care plan disclose,
371371 at no cost, to the commission and, on request, the office of the
372372 attorney general all discounts, incentives, rebates, fees, free
373373 goods, bundling arrangements, and other agreements affecting the
374374 net cost of goods or services provided under the plan; and
375375 (25) a requirement that the managed care organization
376376 [not implement significant, nonnegotiated, across-the-board
377377 provider reimbursement rate reductions unless:
378378 [(A) subject to Subsection (a-3), the
379379 organization has the prior approval of the commission to make the
380380 reduction; or
381381 [(B) the rate reductions are based on changes to
382382 the Medicaid fee schedule or cost containment initiatives
383383 implemented by the commission; and
384384 [(26) a requirement that the managed care
385385 organization] make initial and subsequent primary care provider
386386 assignments and changes.
387387 (e) In addition to the requirements specified by Subsection
388388 (a), a contract described by that subsection must provide that if
389389 the managed care organization has an ownership interest in a health
390390 care provider in the organization's provider network, the
391391 organization:
392392 (1) must include in the provider network at least one
393393 other health care provider of the same type in which the
394394 organization does not have an ownership interest unless the
395395 organization is able to demonstrate to the commission that the
396396 provider included in the provider network is the only provider
397397 located in an area that meets requirements established by the
398398 commission relating to the time and distance a recipient is
399399 expected to travel to receive services; and
400400 (2) may not give preference in authorizing referrals
401401 to the provider in which the organization has an ownership interest
402402 as compared to other providers of the same or similar services
403403 participating in the organization's provider network.
404404 SECTION 3. Subchapter A, Chapter 533, Government Code, is
405405 amended by adding Section 533.00541 to read as follows:
406406 Sec. 533.00541. PRIOR AUTHORIZATION REQUIREMENT FOR
407407 CERTAIN POST-ACUTE CARE SERVICES BEFORE DISCHARGE.
408408 Notwithstanding any other law and except as otherwise provided by a
409409 settlement agreement filed with and approved by a court, the
410410 commission shall require a managed care organization that contracts
411411 with the commission to provide health care services to recipients
412412 to, not later than 72 hours after receiving a request from a
413413 provider of acute care inpatient services for prior authorization
414414 for services or equipment to allow for discharge of a patient from
415415 an inpatient facility, approve or pend the request.
416416 SECTION 4. Subchapter A, Chapter 533, Government Code, is
417417 amended by adding Section 533.00611 to read as follows:
418418 Sec. 533.00611. STANDARDS FOR DETERMINING MEDICAL
419419 NECESSITY. (a) Except as provided by Subsection (b), the
420420 commission shall establish standards that govern the processes,
421421 criteria, and guidelines under which managed care organizations
422422 determine the medical necessity of a health care service covered by
423423 Medicaid. In establishing standards under this section, the
424424 commission shall:
425425 (1) ensure that each recipient has equal access in
426426 scope and duration to the same covered health care services for
427427 which the recipient is eligible, regardless of the managed care
428428 organization with which the recipient is enrolled;
429429 (2) provide managed care organizations with
430430 flexibility to approve covered medically necessary services for
431431 recipients that may not be within prescribed criteria and
432432 guidelines;
433433 (3) require managed care organizations to make
434434 available to providers all criteria and guidelines used to
435435 determine medical necessity through an Internet portal accessible
436436 by the providers;
437437 (4) ensure that managed care organizations
438438 consistently apply the same medical necessity criteria and
439439 guidelines for the approval of services and in retrospective
440440 utilization reviews; and
441441 (5) ensure that managed care organizations include in
442442 any service or prior authorization denial specific information
443443 about the medical necessity criteria or guidelines that were not
444444 met.
445445 (b) This section does not apply to or affect the
446446 commission's authority to:
447447 (1) determine medical necessity for home and
448448 community-based services provided under the STAR+PLUS Medicaid
449449 managed care program; or
450450 (2) conduct utilization reviews of those services.
451451 SECTION 5. Subchapter A, Chapter 533, Government Code, is
452452 amended by adding Section 533.0091 to read as follows:
453453 Sec. 533.0091. CARE COORDINATION SERVICES. (a) In this
454454 section:
455455 (1) "Care coordination" means assisting recipients to
456456 develop a plan of care, including an individual service plan, that
457457 meets the recipient's needs and coordinating the provision of
458458 Medicaid benefits in a manner that is consistent with the plan of
459459 care. The term is synonymous with "case management," "service
460460 coordination," and "service management."
461461 (2) "Care coordinator" means a person, including a
462462 case manager, engaged by a managed care organization that contracts
463463 with the commission under this chapter to provide care coordination
464464 services.
465465 (b) A managed care organization that contracts with the
466466 commission to provide health care services to recipients shall:
467467 (1) ensure that care coordinators for the organization
468468 coordinate with hospital discharge planners, who must notify the
469469 organization of an inpatient admission of a recipient, to
470470 facilitate the timely discharge of the recipient to the appropriate
471471 level of care and minimize potentially preventable readmissions;
472472 and
473473 (2) provide comprehensive care coordination services
474474 to adult recipients with multiple chronic conditions, including
475475 trauma-related injuries, cardiac events, and cancer.
476476 (c) For purposes of this chapter, the commission and a
477477 managed care organization shall classify care coordination
478478 services as medical services instead of as an administrative
479479 service or expense.
480480 SECTION 6. Subchapter A, Chapter 533, Government Code, is
481481 amended by adding Section 533.0122 to read as follows:
482482 Sec. 533.0122. UTILIZATION REVIEW AUDITS CONDUCTED BY
483483 OFFICE OF INSPECTOR GENERAL. (a) If the commission's office of
484484 inspector general intends to conduct a utilization review audit of
485485 a provider of services under a Medicaid managed care delivery
486486 model, the office shall inform both the provider and the managed
487487 care organization with which the provider contracts of any
488488 applicable criteria and guidelines the office will use in the
489489 course of the audit.
490490 (b) The commission's office of inspector general shall
491491 ensure that each person conducting a utilization review audit under
492492 this section has experience and training regarding the operations
493493 of managed care organizations.
494494 (c) The commission's office of inspector general may not, as
495495 the result of a utilization review audit, recoup an overpayment or
496496 debt from a provider that contracts with a managed care
497497 organization based on a determination that a provided service was
498498 not medically necessary unless the office:
499499 (1) uses the same criteria and guidelines that were
500500 used by the managed care organization in its determination of
501501 medical necessity for the service; and
502502 (2) verifies with the managed care organization and
503503 the provider that the provider:
504504 (A) at the time the service was delivered, had
505505 reasonable notice of the criteria and guidelines used by the
506506 managed care organization to determine medical necessity; and
507507 (B) did not follow the criteria and guidelines
508508 used by the managed care organization to determine medical
509509 necessity that were in effect at the time the service was delivered.
510510 (d) If the commission's office of inspector general
511511 conducts a utilization review audit that results in a determination
512512 to recoup money from a managed care organization that contracts
513513 with the commission to provide health care services to recipients,
514514 the provider protections from liability under Section 531.1133
515515 apply.
516516 SECTION 7. Sections 531.02176 and 533.005(a-3), Government
517517 Code, are repealed.
518518 SECTION 8. Section 533.005, Government Code, as amended by
519519 this Act, applies to a contract entered into or renewed on or after
520520 the effective date of this Act. A contract entered into or renewed
521521 before that date is governed by the law in effect on the date the
522522 contract was entered into or renewed, and that law is continued in
523523 effect for that purpose.
524524 SECTION 9. If before implementing any provision of this Act
525525 a state agency determines that a waiver or authorization from a
526526 federal agency is necessary for implementation of that provision,
527527 the agency affected by the provision shall request the waiver or
528528 authorization and may delay implementing that provision until the
529529 waiver or authorization is granted.
530530 SECTION 10. This Act takes effect September 1, 2019.