Texas 2021 - 87th Regular

Texas House Bill HB2822 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 2822
	1	+	By: Hull, et al. (Senate Sponsor - Buckingham) H.B. No. 2822
	2	+	(In the Senate - Received from the House May 12, 2021;
	3	+	May 13, 2021, read first time and referred to Committee on Health &
	4	+	Human Services; May 20, 2021, reported favorably by the following
	5	+	vote: Yeas 8, Nays 0; May 20, 2021, sent to printer.)
	6	+	Click here to see the committee vote
2	7
3	8
	9	+	A BILL TO BE ENTITLED
4	10		AN ACT
5	11		relating to the availability of antipsychotic prescription drugs
6	12		under the vendor drug program and Medicaid managed care.
7	13		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	14		SECTION 1. Section 531.073, Government Code, is amended by
9	15		amending Subsection (a) and adding Subsections (a-3), (a-4), and
10	16		(a-5) to read as follows:
11	17		(a) The executive commissioner, in the rules and standards
12	18		governing the Medicaid vendor drug program and the child health
13	19		plan program, shall require prior authorization for the
14	20		reimbursement of a drug that is not included in the appropriate
15	21		preferred drug list adopted under Section 531.072, except for any
16	22		drug exempted from prior authorization requirements by federal law
17	23		and except as provided by Subsections (a-3) and [Subsection] (j).
18	24		The executive commissioner may require prior authorization for the
19	25		reimbursement of a drug provided through any other state program
20	26		administered by the commission or a state health and human services
21	27		agency, including a community mental health center and a state
22	28		mental health hospital if the commission adopts preferred drug
23	29		lists under Section 531.072 that apply to those facilities and the
24	30		drug is not included in the appropriate list. The executive
25	31		commissioner shall require that the prior authorization be obtained
26	32		by the prescribing physician or prescribing practitioner.
27	33		(a-3) The executive commissioner, in the rules and
28	34		standards governing the vendor drug program, may not require prior
29	35		authorization for a nonpreferred antipsychotic drug that is
30	36		included on the vendor drug formulary and prescribed to an adult
31	37		patient if:
32	38		(1) during the preceding year, the patient was
33	39		prescribed and unsuccessfully treated with a 14-day treatment trial
34	40		of an antipsychotic drug that is included on the appropriate
35	41		preferred drug list adopted under Section 531.072 and for which a
36	42		single claim was paid;
37	43		(2) the patient has previously been prescribed and
38	44		obtained prior authorization for the nonpreferred antipsychotic
39	45		drug and the prescription is for the purpose of drug dosage
40	46		titration; or
41	47		(3) subject to federal law on maximum dosage limits
42	48		and commission rules on drug quantity limits, the patient has
43	49		previously been prescribed and obtained prior authorization for the
44	50		nonpreferred antipsychotic drug and the prescription modifies the
45	51		dosage, dosage frequency, or both, of the drug as part of the same
46	52		treatment for which the drug was previously prescribed.
47	53		(a-4) Subsection (a-3) does not affect:
48	54		(1) the authority of a pharmacist to dispense the
49	55		generic equivalent or interchangeable biological product of a
50	56		prescription drug in accordance with Subchapter A, Chapter 562,
51	57		Occupations Code;
52	58		(2) any drug utilization review requirements
53	59		prescribed by state or federal law; or
54	60		(3) clinical prior authorization edits to preferred
55	61		and nonpreferred antipsychotic drug prescriptions.
56	62		(a-5) The executive commissioner, in the rules and
57	63		standards governing the vendor drug program and as part of the
58	64		requirements under a contract between the commission and a Medicaid
59	65		managed care organization, shall:
60	66		(1) require, to the maximum extent possible based on a
61	67		pharmacy benefit manager's claim system, automation of clinical
62	68		prior authorization for each drug in the antipsychotic drug class;
63	69		and
64	70		(2) ensure that, at the time a nonpreferred or
65	71		clinical prior authorization edit is denied, a pharmacist is
66	72		immediately provided a point-of-sale return message that:
67	73		(A) clearly specifies the contact and other
68	74		information necessary for the pharmacist to submit a prior
69	75		authorization request for the prescription; and
70	76		(B) instructs the pharmacist to dispense, only if
71	77		clinically appropriate under federal or state law, a 72-hour supply
72	78		of the prescription.
73	79		SECTION 2. Section 533.005(a), Government Code, is amended
74	80		to read as follows:
75	81		(a) A contract between a managed care organization and the
76	82		commission for the organization to provide health care services to
77	83		recipients must contain:
78	84		(1) procedures to ensure accountability to the state
79	85		for the provision of health care services, including procedures for
80	86		financial reporting, quality assurance, utilization review, and
81	87		assurance of contract and subcontract compliance;
82	88		(2) capitation rates that ensure the cost-effective
83	89		provision of quality health care;
84	90		(3) a requirement that the managed care organization
85	91		provide ready access to a person who assists recipients in
86	92		resolving issues relating to enrollment, plan administration,
87	93		education and training, access to services, and grievance
88	94		procedures;
89	95		(4) a requirement that the managed care organization
90	96		provide ready access to a person who assists providers in resolving
91	97		issues relating to payment, plan administration, education and
92	98		training, and grievance procedures;
93	99		(5) a requirement that the managed care organization
94	100		provide information and referral about the availability of
95	101		educational, social, and other community services that could
96	102		benefit a recipient;
97	103		(6) procedures for recipient outreach and education;
98	104		(7) a requirement that the managed care organization
99	105		make payment to a physician or provider for health care services
100	106		rendered to a recipient under a managed care plan on any claim for
101	107		payment that is received with documentation reasonably necessary
102	108		for the managed care organization to process the claim:
103	109		(A) not later than:
104	110		(i) the 10th day after the date the claim is
105	111		received if the claim relates to services provided by a nursing
106	112		facility, intermediate care facility, or group home;
107	113		(ii) the 30th day after the date the claim
108	114		is received if the claim relates to the provision of long-term
109	115		services and supports not subject to Subparagraph (i); and
110	116		(iii) the 45th day after the date the claim
111	117		is received if the claim is not subject to Subparagraph (i) or (ii);
112	118		or
113	119		(B) within a period, not to exceed 60 days,
114	120		specified by a written agreement between the physician or provider
115	121		and the managed care organization;
116	122		(7-a) a requirement that the managed care organization
117	123		demonstrate to the commission that the organization pays claims
118	124		described by Subdivision (7)(A)(ii) on average not later than the
119	125		21st day after the date the claim is received by the organization;
120	126		(8) a requirement that the commission, on the date of a
121	127		recipient's enrollment in a managed care plan issued by the managed
122	128		care organization, inform the organization of the recipient's
123	129		Medicaid certification date;
124	130		(9) a requirement that the managed care organization
125	131		comply with Section 533.006 as a condition of contract retention
126	132		and renewal;
127	133		(10) a requirement that the managed care organization
128	134		provide the information required by Section 533.012 and otherwise
129	135		comply and cooperate with the commission's office of inspector
130	136		general and the office of the attorney general;
131	137		(11) a requirement that the managed care
132	138		organization's usages of out-of-network providers or groups of
133	139		out-of-network providers may not exceed limits for those usages
134	140		relating to total inpatient admissions, total outpatient services,
135	141		and emergency room admissions determined by the commission;
136	142		(12) if the commission finds that a managed care
137	143		organization has violated Subdivision (11), a requirement that the
138	144		managed care organization reimburse an out-of-network provider for
139	145		health care services at a rate that is equal to the allowable rate
140	146		for those services, as determined under Sections 32.028 and
141	147		32.0281, Human Resources Code;
142	148		(13) a requirement that, notwithstanding any other
143	149		law, including Sections 843.312 and 1301.052, Insurance Code, the
144	150		organization:
145	151		(A) use advanced practice registered nurses and
146	152		physician assistants in addition to physicians as primary care
147	153		providers to increase the availability of primary care providers in
148	154		the organization's provider network; and
149	155		(B) treat advanced practice registered nurses
150	156		and physician assistants in the same manner as primary care
151	157		physicians with regard to:
152	158		(i) selection and assignment as primary
153	159		care providers;
154	160		(ii) inclusion as primary care providers in
155	161		the organization's provider network; and
156	162		(iii) inclusion as primary care providers
157	163		in any provider network directory maintained by the organization;
158	164		(14) a requirement that the managed care organization
159	165		reimburse a federally qualified health center or rural health
160	166		clinic for health care services provided to a recipient outside of
161	167		regular business hours, including on a weekend day or holiday, at a
162	168		rate that is equal to the allowable rate for those services as
163	169		determined under Section 32.028, Human Resources Code, if the
164	170		recipient does not have a referral from the recipient's primary
165	171		care physician;
166	172		(15) a requirement that the managed care organization
167	173		develop, implement, and maintain a system for tracking and
168	174		resolving all provider appeals related to claims payment, including
169	175		a process that will require:
170	176		(A) a tracking mechanism to document the status
171	177		and final disposition of each provider's claims payment appeal;
172	178		(B) the contracting with physicians who are not
173	179		network providers and who are of the same or related specialty as
174	180		the appealing physician to resolve claims disputes related to
175	181		denial on the basis of medical necessity that remain unresolved
176	182		subsequent to a provider appeal;
177	183		(C) the determination of the physician resolving
178	184		the dispute to be binding on the managed care organization and
179	185		provider; and
180	186		(D) the managed care organization to allow a
181	187		provider with a claim that has not been paid before the time
182	188		prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
183	189		claim;
184	190		(16) a requirement that a medical director who is
185	191		authorized to make medical necessity determinations is available to
186	192		the region where the managed care organization provides health care
187	193		services;
188	194		(17) a requirement that the managed care organization
189	195		ensure that a medical director and patient care coordinators and
190	196		provider and recipient support services personnel are located in
191	197		the South Texas service region, if the managed care organization
192	198		provides a managed care plan in that region;
193	199		(18) a requirement that the managed care organization
194	200		provide special programs and materials for recipients with limited
195	201		English proficiency or low literacy skills;
196	202		(19) a requirement that the managed care organization
197	203		develop and establish a process for responding to provider appeals
198	204		in the region where the organization provides health care services;
199	205		(20) a requirement that the managed care organization:
200	206		(A) develop and submit to the commission, before
201	207		the organization begins to provide health care services to
202	208		recipients, a comprehensive plan that describes how the
203	209		organization's provider network complies with the provider access
204	210		standards established under Section 533.0061;
205	211		(B) as a condition of contract retention and
206	212		renewal:
207	213		(i) continue to comply with the provider
208	214		access standards established under Section 533.0061; and
209	215		(ii) make substantial efforts, as
210	216		determined by the commission, to mitigate or remedy any
211	217		noncompliance with the provider access standards established under
212	218		Section 533.0061;
213	219		(C) pay liquidated damages for each failure, as
214	220		determined by the commission, to comply with the provider access
215	221		standards established under Section 533.0061 in amounts that are
216	222		reasonably related to the noncompliance; and
217	223		(D) regularly, as determined by the commission,
218	224		submit to the commission and make available to the public a report
219	225		containing data on the sufficiency of the organization's provider
220	226		network with regard to providing the care and services described
221	227		under Section 533.0061(a) and specific data with respect to access
222	228		to primary care, specialty care, long-term services and supports,
223	229		nursing services, and therapy services on the average length of
224	230		time between:
225	231		(i) the date a provider requests prior
226	232		authorization for the care or service and the date the organization
227	233		approves or denies the request; and
228	234		(ii) the date the organization approves a
229	235		request for prior authorization for the care or service and the date
230	236		the care or service is initiated;
231	237		(21) a requirement that the managed care organization
232	238		demonstrate to the commission, before the organization begins to
233	239		provide health care services to recipients, that, subject to the
234	240		provider access standards established under Section 533.0061:
235	241		(A) the organization's provider network has the
236	242		capacity to serve the number of recipients expected to enroll in a
237	243		managed care plan offered by the organization;
238	244		(B) the organization's provider network
239	245		includes:
240	246		(i) a sufficient number of primary care
241	247		providers;
242	248		(ii) a sufficient variety of provider
243	249		types;
244	250		(iii) a sufficient number of providers of
245	251		long-term services and supports and specialty pediatric care
246	252		providers of home and community-based services; and
247	253		(iv) providers located throughout the
248	254		region where the organization will provide health care services;
249	255		and
250	256		(C) health care services will be accessible to
251	257		recipients through the organization's provider network to a
252	258		comparable extent that health care services would be available to
253	259		recipients under a fee-for-service or primary care case management
254	260		model of Medicaid managed care;
255	261		(22) a requirement that the managed care organization
256	262		develop a monitoring program for measuring the quality of the
257	263		health care services provided by the organization's provider
258	264		network that:
259	265		(A) incorporates the National Committee for
260	266		Quality Assurance's Healthcare Effectiveness Data and Information
261	267		Set (HEDIS) measures or, as applicable, the national core
262	268		indicators adult consumer survey and the national core indicators
263	269		child family survey for individuals with an intellectual or
264	270		developmental disability;
265	271		(B) focuses on measuring outcomes; and
266	272		(C) includes the collection and analysis of
267	273		clinical data relating to prenatal care, preventive care, mental
268	274		health care, and the treatment of acute and chronic health
269	275		conditions and substance abuse;
270	276		(23) subject to Subsection (a-1), a requirement that
271	277		the managed care organization develop, implement, and maintain an
272	278		outpatient pharmacy benefit plan for its enrolled recipients:
273	279		(A) that, except as provided by Paragraph
274	280		(L)(ii), exclusively employs the vendor drug program formulary and
275	281		preserves the state's ability to reduce waste, fraud, and abuse
276	282		under Medicaid;
277	283		(B) that adheres to the applicable preferred drug
278	284		list adopted by the commission under Section 531.072;
279	285		(C) that, except as provided by Paragraph (L)(i),
280	286		includes the prior authorization procedures and requirements
281	287		prescribed by or implemented under Sections 531.073(b), (c), and
282	288		(g) for the vendor drug program;
283	289		(C-1) that does not require a clinical,
284	290		nonpreferred, or other prior authorization for any antiretroviral
285	291		drug, as defined by Section 531.073, or a step therapy or other
286	292		protocol, that could restrict or delay the dispensing of the drug
287	293		except to minimize fraud, waste, or abuse;
288	294		(C-2) that does not require prior authorization
289	295		for a nonpreferred antipsychotic drug prescribed to an adult
290	296		recipient if the requirements of Section 531.073(a-3) are met;
291	297		(D) for purposes of which the managed care
292	298		organization:
293	299		(i) may not negotiate or collect rebates
294	300		associated with pharmacy products on the vendor drug program
295	301		formulary; and
296	302		(ii) may not receive drug rebate or pricing
297	303		information that is confidential under Section 531.071;
298	304		(E) that complies with the prohibition under
299	305		Section 531.089;
300	306		(F) under which the managed care organization may
301	307		not prohibit, limit, or interfere with a recipient's selection of a
302	308		pharmacy or pharmacist of the recipient's choice for the provision
303	309		of pharmaceutical services under the plan through the imposition of
304	310		different copayments;
305	311		(G) that allows the managed care organization or
306	312		any subcontracted pharmacy benefit manager to contract with a
307	313		pharmacist or pharmacy providers separately for specialty pharmacy
308	314		services, except that:
309	315		(i) the managed care organization and
310	316		pharmacy benefit manager are prohibited from allowing exclusive
311	317		contracts with a specialty pharmacy owned wholly or partly by the
312	318		pharmacy benefit manager responsible for the administration of the
313	319		pharmacy benefit program; and
314	320		(ii) the managed care organization and
315	321		pharmacy benefit manager must adopt policies and procedures for
316	322		reclassifying prescription drugs from retail to specialty drugs,
317	323		and those policies and procedures must be consistent with rules
318	324		adopted by the executive commissioner and include notice to network
319	325		pharmacy providers from the managed care organization;
320	326		(H) under which the managed care organization may
321	327		not prevent a pharmacy or pharmacist from participating as a
322	328		provider if the pharmacy or pharmacist agrees to comply with the
323	329		financial terms and conditions of the contract as well as other
324	330		reasonable administrative and professional terms and conditions of
325	331		the contract;
326	332		(I) under which the managed care organization may
327	333		include mail-order pharmacies in its networks, but may not require
328	334		enrolled recipients to use those pharmacies, and may not charge an
329	335		enrolled recipient who opts to use this service a fee, including
330	336		postage and handling fees;
331	337		(J) under which the managed care organization or
332	338		pharmacy benefit manager, as applicable, must pay claims in
333	339		accordance with Section 843.339, Insurance Code;
334	340		(K) under which the managed care organization or
335	341		pharmacy benefit manager, as applicable:
336	342		(i) to place a drug on a maximum allowable
337	343		cost list, must ensure that:
338	344		(a) the drug is listed as "A" or "B"
339	345		rated in the most recent version of the United States Food and Drug
340	346		Administration's Approved Drug Products with Therapeutic
341	347		Equivalence Evaluations, also known as the Orange Book, has an "NR"
342	348		or "NA" rating or a similar rating by a nationally recognized
343	349		reference; and
344	350		(b) the drug is generally available
345	351		for purchase by pharmacies in the state from national or regional
346	352		wholesalers and is not obsolete;
347	353		(ii) must provide to a network pharmacy
348	354		provider, at the time a contract is entered into or renewed with the
349	355		network pharmacy provider, the sources used to determine the
350	356		maximum allowable cost pricing for the maximum allowable cost list
351	357		specific to that provider;
352	358		(iii) must review and update maximum
353	359		allowable cost price information at least once every seven days to
354	360		reflect any modification of maximum allowable cost pricing;
355	361		(iv) must, in formulating the maximum
356	362		allowable cost price for a drug, use only the price of the drug and
357	363		drugs listed as therapeutically equivalent in the most recent
358	364		version of the United States Food and Drug Administration's
359	365		Approved Drug Products with Therapeutic Equivalence Evaluations,
360	366		also known as the Orange Book;
361	367		(v) must establish a process for
362	368		eliminating products from the maximum allowable cost list or
363	369		modifying maximum allowable cost prices in a timely manner to
364	370		remain consistent with pricing changes and product availability in
365	371		the marketplace;
366	372		(vi) must:
367	373		(a) provide a procedure under which a
368	374		network pharmacy provider may challenge a listed maximum allowable
369	375		cost price for a drug;
370	376		(b) respond to a challenge not later
371	377		than the 15th day after the date the challenge is made;
372	378		(c) if the challenge is successful,
373	379		make an adjustment in the drug price effective on the date the
374	380		challenge is resolved and make the adjustment applicable to all
375	381		similarly situated network pharmacy providers, as determined by the
376	382		managed care organization or pharmacy benefit manager, as
377	383		appropriate;
378	384		(d) if the challenge is denied,
379	385		provide the reason for the denial; and
380	386		(e) report to the commission every 90
381	387		days the total number of challenges that were made and denied in the
382	388		preceding 90-day period for each maximum allowable cost list drug
383	389		for which a challenge was denied during the period;
384	390		(vii) must notify the commission not later
385	391		than the 21st day after implementing a practice of using a maximum
386	392		allowable cost list for drugs dispensed at retail but not by mail;
387	393		and
388	394		(viii) must provide a process for each of
389	395		its network pharmacy providers to readily access the maximum
390	396		allowable cost list specific to that provider; and
391	397		(L) under which the managed care organization or
392	398		pharmacy benefit manager, as applicable:
393	399		(i) may not require a prior authorization,
394	400		other than a clinical prior authorization or a prior authorization
395	401		imposed by the commission to minimize the opportunity for waste,
396	402		fraud, or abuse, for or impose any other barriers to a drug that is
397	403		prescribed to a child enrolled in the STAR Kids managed care program
398	404		for a particular disease or treatment and that is on the vendor drug
399	405		program formulary or require additional prior authorization for a
400	406		drug included in the preferred drug list adopted under Section
401	407		531.072;
402	408		(ii) must provide for continued access to a
403	409		drug prescribed to a child enrolled in the STAR Kids managed care
404	410		program, regardless of whether the drug is on the vendor drug
405	411		program formulary or, if applicable on or after August 31, 2023, the
406	412		managed care organization's formulary;
407	413		(iii) may not use a protocol that requires a
408	414		child enrolled in the STAR Kids managed care program to use a
409	415		prescription drug or sequence of prescription drugs other than the
410	416		drug that the child's physician recommends for the child's
411	417		treatment before the managed care organization provides coverage
412	418		for the recommended drug; and
413	419		(iv) must pay liquidated damages to the
414	420		commission for each failure, as determined by the commission, to
415	421		comply with this paragraph in an amount that is a reasonable
416	422		forecast of the damages caused by the noncompliance;
417	423		(24) a requirement that the managed care organization
418	424		and any entity with which the managed care organization contracts
419	425		for the performance of services under a managed care plan disclose,
420	426		at no cost, to the commission and, on request, the office of the
421	427		attorney general all discounts, incentives, rebates, fees, free
422	428		goods, bundling arrangements, and other agreements affecting the
423	429		net cost of goods or services provided under the plan;
424	430		(25) a requirement that the managed care organization
425	431		not implement significant, nonnegotiated, across-the-board
426	432		provider reimbursement rate reductions unless:
427	433		(A) subject to Subsection (a-3), the
428	434		organization has the prior approval of the commission to make the
429	435		reductions; or
430	436		(B) the rate reductions are based on changes to
431	437		the Medicaid fee schedule or cost containment initiatives
432	438		implemented by the commission; and
433	439		(26) a requirement that the managed care organization
434	440		make initial and subsequent primary care provider assignments and
435	441		changes.
436	442		SECTION 3. (a) The Health and Human Services Commission
437	443		shall, in a contract between the commission and a managed care
438	444		organization under Chapter 533, Government Code, that is entered
439	445		into or renewed on or after the effective date of this Act, require
440	446		that the managed care organization comply with Sections
441	447		531.073(a-5) and 533.005(a)(23)(C-2), Government Code, as added by
442	448		this Act.
443	449		(b) The Health and Human Services Commission shall seek to
444	450		amend contracts entered into with managed care organizations under
445	451		Chapter 533, Government Code, before the effective date of this Act
446	452		to require those managed care organizations to comply with Sections
447	453		531.073(a-5) and 533.005(a)(23)(C-2), Government Code, as added by
448	454		this Act. To the extent of a conflict between those sections and a
449	455		provision of a contract with a managed care organization entered
450	456		into before the effective date of this Act, the contract provision
451	457		prevails.
452	458		SECTION 4. If before implementing any provision of this Act
453	459		a state agency determines that a waiver or authorization from a
454	460		federal agency is necessary for implementation of that provision,
455	461		the agency affected by the provision shall request the waiver or
456	462		authorization and may delay implementing that provision until the
457	463		waiver or authorization is granted.
458	464		SECTION 5. This Act takes effect September 1, 2021.
459		-	______________________________ ______________________________
460		-	President of the Senate Speaker of the House
461		-	I certify that H.B. No. 2822 was passed by the House on May
462		-	11, 2021, by the following vote: Yeas 112, Nays 32, 2 present, not
463		-	voting.
464		-	______________________________
465		-	Chief Clerk of the House
466		-	I certify that H.B. No. 2822 was passed by the Senate on May
467		-	24, 2021, by the following vote: Yeas 30, Nays 0.
468		-	______________________________
469		-	Secretary of the Senate
470		-	APPROVED: _____________________
471		-	Date
472		-	_____________________
473		-	Governor
	465	+	* * * * *