Texas 2021 - 87th Regular

Texas House Bill HB939 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R582 JG-F
2	2	By: Raymond H.B. No. 939
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to required access to care and provider network provisions
8	8	in a contract between the Health and Human Services Commission and a
9	9	Medicaid managed care organization.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 533.005, Government Code, is amended by
12	12	amending Subsection (a) and adding Subsection (e) to read as
13	13	follows:
14	14	(a) A contract between a managed care organization and the
15	15	commission for the organization to provide health care services to
16	16	recipients must contain:
17	17	(1) procedures to ensure accountability to the state
18	18	for the provision of health care services, including procedures for
19	19	financial reporting, quality assurance, utilization review, and
20	20	assurance of contract and subcontract compliance;
21	21	(2) capitation rates that ensure access to and the
22	22	cost-effective provision of quality health care;
23	23	(3) a requirement that the managed care organization
24	24	provide ready access to a person who assists recipients in
25	25	resolving issues relating to enrollment, plan administration,
26	26	education and training, access to services, and grievance
27	27	procedures;
28	28	(4) a requirement that the managed care organization
29	29	provide ready access to a person who assists providers in resolving
30	30	issues relating to payment, plan administration, education and
31	31	training, and grievance procedures;
32	32	(5) a requirement that the managed care organization
33	33	provide information and referral about the availability of
34	34	educational, social, and other community services that could
35	35	benefit a recipient;
36	36	(6) procedures for recipient outreach and education;
37	37	(7) a requirement that the managed care organization
38	38	make payment to a physician or provider for health care services
39	39	rendered to a recipient under a managed care plan on any claim for
40	40	payment that is received with documentation reasonably necessary
41	41	for the managed care organization to process the claim:
42	42	(A) not later than:
43	43	(i) the 10th day after the date the claim is
44	44	received if the claim relates to services provided by a nursing
45	45	facility, intermediate care facility, or group home;
46	46	(ii) the 30th day after the date the claim
47	47	is received if the claim relates to the provision of long-term
48	48	services and supports not subject to Subparagraph (i); and
49	49	(iii) the 45th day after the date the claim
50	50	is received if the claim is not subject to Subparagraph (i) or (ii);
51	51	or
52	52	(B) within a period, not to exceed 60 days,
53	53	specified by a written agreement between the physician or provider
54	54	and the managed care organization;
55	55	(7-a) a requirement that the managed care organization
56	56	demonstrate to the commission that the organization pays claims
57	57	described by Subdivision (7)(A)(ii) on average not later than the
58	58	21st day after the date the claim is received by the organization;
59	59	(8) a requirement that the commission, on the date of a
60	60	recipient's enrollment in a managed care plan issued by the managed
61	61	care organization, inform the organization of the recipient's
62	62	Medicaid certification date;
63	63	(9) a requirement that the managed care organization
64	64	comply with Section 533.006 as a condition of contract retention
65	65	and renewal;
66	66	(10) a requirement that the managed care organization
67	67	provide the information required by Section 533.012 and otherwise
68	68	comply and cooperate with the commission's office of inspector
69	69	general and the office of the attorney general;
70	70	(11) a requirement that the managed care
71	71	organization's utilization [usages] of out-of-network providers or
72	72	groups of out-of-network providers may not exceed limits determined
73	73	by the commission, including limits [for those usages] relating to:
74	74	(A) total inpatient admissions, total outpatient
75	75	services, and emergency room admissions [determined by the
76	76	commission];
77	77	(B) acute care services not described by
78	78	Paragraph (A); and
79	79	(C) long-term services and supports;
80	80	(12) if the commission finds that a managed care
81	81	organization has violated Subdivision (11), a requirement that the
82	82	managed care organization reimburse an out-of-network provider for
83	83	health care services at a rate that is equal to the allowable rate
84	84	for those services, as determined under Sections 32.028 and
85	85	32.0281, Human Resources Code;
86	86	(13) a requirement that, notwithstanding any other
87	87	law, including Sections 843.312 and 1301.052, Insurance Code, the
88	88	organization:
89	89	(A) use advanced practice registered nurses and
90	90	physician assistants in addition to physicians as primary care
91	91	providers to increase the availability of primary care providers in
92	92	the organization's provider network; and
93	93	(B) treat advanced practice registered nurses
94	94	and physician assistants in the same manner as primary care
95	95	physicians with regard to:
96	96	(i) selection and assignment as primary
97	97	care providers;
98	98	(ii) inclusion as primary care providers in
99	99	the organization's provider network; and
100	100	(iii) inclusion as primary care providers
101	101	in any provider network directory maintained by the organization;
102	102	(14) a requirement that the managed care organization
103	103	reimburse a federally qualified health center or rural health
104	104	clinic for health care services provided to a recipient outside of
105	105	regular business hours, including on a weekend day or holiday, at a
106	106	rate that is equal to the allowable rate for those services as
107	107	determined under Section 32.028, Human Resources Code, if the
108	108	recipient does not have a referral from the recipient's primary
109	109	care physician;
110	110	(15) a requirement that the managed care organization
111	111	develop, implement, and maintain a system for tracking and
112	112	resolving all provider appeals related to claims payment, including
113	113	a process that will require:
114	114	(A) a tracking mechanism to document the status
115	115	and final disposition of each provider's claims payment appeal;
116	116	(B) the contracting with physicians who are not
117	117	network providers and who are of the same or related specialty as
118	118	the appealing physician to resolve claims disputes related to
119	119	denial on the basis of medical necessity that remain unresolved
120	120	subsequent to a provider appeal;
121	121	(C) the determination of the physician resolving
122	122	the dispute to be binding on the managed care organization and
123	123	provider; and
124	124	(D) the managed care organization to allow a
125	125	provider with a claim that has not been paid before the time
126	126	prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
127	127	claim;
128	128	(16) a requirement that a medical director who is
129	129	authorized to make medical necessity determinations is available to
130	130	the region where the managed care organization provides health care
131	131	services;
132	132	(17) a requirement that the managed care organization
133	133	ensure that a medical director and patient care coordinators and
134	134	provider and recipient support services personnel are located in
135	135	the South Texas service region, if the managed care organization
136	136	provides a managed care plan in that region;
137	137	(18) a requirement that the managed care organization
138	138	provide special programs and materials for recipients with limited
139	139	English proficiency or low literacy skills;
140	140	(19) a requirement that the managed care organization
141	141	develop and establish a process for responding to provider appeals
142	142	in the region where the organization provides health care services;
143	143	(20) a requirement that the managed care organization:
144	144	(A) develop and submit to the commission, before
145	145	the organization begins to provide health care services to
146	146	recipients, a comprehensive plan that describes how the
147	147	organization's provider network complies with the provider access
148	148	standards established under Section 533.0061;
149	149	(B) as a condition of contract retention and
150	150	renewal:
151	151	(i) continue to comply with the provider
152	152	access standards established under Section 533.0061; and
153	153	(ii) make substantial efforts, as
154	154	determined by the commission, to mitigate or remedy any
155	155	noncompliance with the provider access standards established under
156	156	Section 533.0061;
157	157	(C) pay liquidated damages for each failure, as
158	158	determined by the commission, to comply with the provider access
159	159	standards established under Section 533.0061 in amounts that are
160	160	reasonably related to the noncompliance; and
161	161	(D) annually [regularly, as determined by the
162	162	commission,] submit to the commission and make available to the
163	163	public a report containing data on the sufficiency of the
164	164	organization's provider network with regard to providing the care
165	165	and services described under Section 533.0061(a) and specific data
166	166	with respect to access to primary care, specialty care, long-term
167	167	services and supports, nursing services, and therapy services on:
168	168	(i) the average length of time between[:
169	169	[(i)] the date a provider requests prior
170	170	authorization for the care or service and the date the organization
171	171	approves or denies the request; [and]
172	172	(ii) the average length of time between the
173	173	date the organization approves a request for prior authorization
174	174	for the care or service and the date the care or service is
175	175	initiated; and
176	176	(iii) the number of providers who are
177	177	accepting new patients;
178	178	(21) a requirement that the managed care organization
179	179	demonstrate to the commission, before the organization begins to
180	180	provide health care services to recipients, that, subject to the
181	181	provider access standards established under Section 533.0061:
182	182	(A) the organization's provider network has the
183	183	capacity to serve the number of recipients expected to enroll in a
184	184	managed care plan offered by the organization;
185	185	(B) the organization's provider network
186	186	includes:
187	187	(i) a sufficient number of primary care
188	188	providers;
189	189	(ii) a sufficient variety of provider
190	190	types;
191	191	(iii) a sufficient number of providers of
192	192	long-term services and supports and specialty pediatric care
193	193	providers of home and community-based services; and
194	194	(iv) providers located throughout the
195	195	region where the organization will provide health care services;
196	196	and
197	197	(C) health care services will be accessible to
198	198	recipients through the organization's provider network to a
199	199	comparable extent that health care services would be available to
200	200	recipients under a fee-for-service or primary care case management
201	201	model of Medicaid managed care;
202	202	(22) a requirement that the managed care organization
203	203	develop a monitoring program for measuring the quality of the
204	204	health care services provided by the organization's provider
205	205	network that:
206	206	(A) incorporates the National Committee for
207	207	Quality Assurance's Healthcare Effectiveness Data and Information
208	208	Set (HEDIS) measures or, as applicable, the national core
209	209	indicators adult consumer survey and the national core indicators
210	210	child family survey for individuals with an intellectual or
211	211	developmental disability;
212	212	(B) focuses on measuring outcomes; and
213	213	(C) includes the collection and analysis of
214	214	clinical data relating to prenatal care, preventive care, mental
215	215	health care, and the treatment of acute and chronic health
216	216	conditions and substance abuse;
217	217	(23) subject to Subsection (a-1), a requirement that
218	218	the managed care organization develop, implement, and maintain an
219	219	outpatient pharmacy benefit plan for its enrolled recipients:
220	220	(A) that, except as provided by Paragraph
221	221	(L)(ii), exclusively employs the vendor drug program formulary and
222	222	preserves the state's ability to reduce waste, fraud, and abuse
223	223	under Medicaid;
224	224	(B) that adheres to the applicable preferred drug
225	225	list adopted by the commission under Section 531.072;
226	226	(C) that, except as provided by Paragraph (L)(i),
227	227	includes the prior authorization procedures and requirements
228	228	prescribed by or implemented under Sections 531.073(b), (c), and
229	229	(g) for the vendor drug program;
230	230	(C-1) that does not require a clinical,
231	231	nonpreferred, or other prior authorization for any antiretroviral
232	232	drug, as defined by Section 531.073, or a step therapy or other
233	233	protocol, that could restrict or delay the dispensing of the drug
234	234	except to minimize fraud, waste, or abuse;
235	235	(D) for purposes of which the managed care
236	236	organization:
237	237	(i) may not negotiate or collect rebates
238	238	associated with pharmacy products on the vendor drug program
239	239	formulary; and
240	240	(ii) may not receive drug rebate or pricing
241	241	information that is confidential under Section 531.071;
242	242	(E) that complies with the prohibition under
243	243	Section 531.089;
244	244	(F) under which the managed care organization may
245	245	not prohibit, limit, or interfere with a recipient's selection of a
246	246	pharmacy or pharmacist of the recipient's choice for the provision
247	247	of pharmaceutical services under the plan through the imposition of
248	248	different copayments;
249	249	(G) that allows the managed care organization or
250	250	any subcontracted pharmacy benefit manager to contract with a
251	251	pharmacist or pharmacy providers separately for specialty pharmacy
252	252	services, except that:
253	253	(i) the managed care organization and
254	254	pharmacy benefit manager are prohibited from allowing exclusive
255	255	contracts with a specialty pharmacy owned wholly or partly by the
256	256	pharmacy benefit manager responsible for the administration of the
257	257	pharmacy benefit program; and
258	258	(ii) the managed care organization and
259	259	pharmacy benefit manager must adopt policies and procedures for
260	260	reclassifying prescription drugs from retail to specialty drugs,
261	261	and those policies and procedures must be consistent with rules
262	262	adopted by the executive commissioner and include notice to network
263	263	pharmacy providers from the managed care organization;
264	264	(H) under which the managed care organization may
265	265	not prevent a pharmacy or pharmacist from participating as a
266	266	provider if the pharmacy or pharmacist agrees to comply with the
267	267	financial terms and conditions of the contract as well as other
268	268	reasonable administrative and professional terms and conditions of
269	269	the contract;
270	270	(I) under which the managed care organization may
271	271	include mail-order pharmacies in its networks, but may not require
272	272	enrolled recipients to use those pharmacies, and may not charge an
273	273	enrolled recipient who opts to use this service a fee, including
274	274	postage and handling fees;
275	275	(J) under which the managed care organization or
276	276	pharmacy benefit manager, as applicable, must pay claims in
277	277	accordance with Section 843.339, Insurance Code;
278	278	(K) under which the managed care organization or
279	279	pharmacy benefit manager, as applicable:
280	280	(i) to place a drug on a maximum allowable
281	281	cost list, must ensure that:
282	282	(a) the drug is listed as "A" or "B"
283	283	rated in the most recent version of the United States Food and Drug
284	284	Administration's Approved Drug Products with Therapeutic
285	285	Equivalence Evaluations, also known as the Orange Book, has an "NR"
286	286	or "NA" rating or a similar rating by a nationally recognized
287	287	reference; and
288	288	(b) the drug is generally available
289	289	for purchase by pharmacies in the state from national or regional
290	290	wholesalers and is not obsolete;
291	291	(ii) must provide to a network pharmacy
292	292	provider, at the time a contract is entered into or renewed with the
293	293	network pharmacy provider, the sources used to determine the
294	294	maximum allowable cost pricing for the maximum allowable cost list
295	295	specific to that provider;
296	296	(iii) must review and update maximum
297	297	allowable cost price information at least once every seven days to
298	298	reflect any modification of maximum allowable cost pricing;
299	299	(iv) must, in formulating the maximum
300	300	allowable cost price for a drug, use only the price of the drug and
301	301	drugs listed as therapeutically equivalent in the most recent
302	302	version of the United States Food and Drug Administration's
303	303	Approved Drug Products with Therapeutic Equivalence Evaluations,
304	304	also known as the Orange Book;
305	305	(v) must establish a process for
306	306	eliminating products from the maximum allowable cost list or
307	307	modifying maximum allowable cost prices in a timely manner to
308	308	remain consistent with pricing changes and product availability in
309	309	the marketplace;
310	310	(vi) must:
311	311	(a) provide a procedure under which a
312	312	network pharmacy provider may challenge a listed maximum allowable
313	313	cost price for a drug;
314	314	(b) respond to a challenge not later
315	315	than the 15th day after the date the challenge is made;
316	316	(c) if the challenge is successful,
317	317	make an adjustment in the drug price effective on the date the
318	318	challenge is resolved and make the adjustment applicable to all
319	319	similarly situated network pharmacy providers, as determined by the
320	320	managed care organization or pharmacy benefit manager, as
321	321	appropriate;
322	322	(d) if the challenge is denied,
323	323	provide the reason for the denial; and
324	324	(e) report to the commission every 90
325	325	days the total number of challenges that were made and denied in the
326	326	preceding 90-day period for each maximum allowable cost list drug
327	327	for which a challenge was denied during the period;
328	328	(vii) must notify the commission not later
329	329	than the 21st day after implementing a practice of using a maximum
330	330	allowable cost list for drugs dispensed at retail but not by mail;
331	331	and
332	332	(viii) must provide a process for each of
333	333	its network pharmacy providers to readily access the maximum
334	334	allowable cost list specific to that provider; and
335	335	(L) under which the managed care organization or
336	336	pharmacy benefit manager, as applicable:
337	337	(i) may not require a prior authorization,
338	338	other than a clinical prior authorization or a prior authorization
339	339	imposed by the commission to minimize the opportunity for waste,
340	340	fraud, or abuse, for or impose any other barriers to a drug that is
341	341	prescribed to a child enrolled in the STAR Kids managed care program
342	342	for a particular disease or treatment and that is on the vendor drug
343	343	program formulary or require additional prior authorization for a
344	344	drug included in the preferred drug list adopted under Section
345	345	531.072;
346	346	(ii) must provide for continued access to a
347	347	drug prescribed to a child enrolled in the STAR Kids managed care
348	348	program, regardless of whether the drug is on the vendor drug
349	349	program formulary or, if applicable on or after August 31, 2023, the
350	350	managed care organization's formulary;
351	351	(iii) may not use a protocol that requires a
352	352	child enrolled in the STAR Kids managed care program to use a
353	353	prescription drug or sequence of prescription drugs other than the
354	354	drug that the child's physician recommends for the child's
355	355	treatment before the managed care organization provides coverage
356	356	for the recommended drug; and
357	357	(iv) must pay liquidated damages to the
358	358	commission for each failure, as determined by the commission, to
359	359	comply with this paragraph in an amount that is a reasonable
360	360	forecast of the damages caused by the noncompliance;
361	361	(24) a requirement that the managed care organization
362	362	and any entity with which the managed care organization contracts
363	363	for the performance of services under a managed care plan disclose,
364	364	at no cost, to the commission and, on request, the office of the
365	365	attorney general all discounts, incentives, rebates, fees, free
366	366	goods, bundling arrangements, and other agreements affecting the
367	367	net cost of goods or services provided under the plan;
368	368	(25) a requirement that the managed care organization
369	369	not implement significant, nonnegotiated, across-the-board
370	370	provider reimbursement rate reductions unless:
371	371	(A) subject to Subsection (a-3), the
372	372	organization has the prior approval of the commission to make the
373	373	reductions; or
374	374	(B) the rate reductions are based on changes to
375	375	the Medicaid fee schedule or cost containment initiatives
376	376	implemented by the commission; and
377	377	(26) a requirement that the managed care organization
378	378	make initial and subsequent primary care provider assignments and
379	379	changes.
380	380	(e) In addition to the requirements specified by Subsection
381	381	(a), a contract described by that subsection must provide that if
382	382	the managed care organization has an ownership interest in a health
383	383	care provider in the organization's provider network, the
384	384	organization:
385	385	(1) must include in the provider network at least one
386	386	other health care provider of the same type in which the
387	387	organization does not have an ownership interest unless the
388	388	organization is able to demonstrate to the commission that the
389	389	provider included in the provider network is the only provider
390	390	located in an area that meets requirements established by the
391	391	commission relating to the time and distance a recipient is
392	392	expected to travel to receive services; and
393	393	(2) may not give preference in authorizing referrals
394	394	to the provider in which the organization has an ownership interest
395	395	as compared to other providers of the same or similar services
396	396	participating in the organization's provider network.
397	397	SECTION 2. Section 533.005, Government Code, as amended by
398	398	this Act, applies to a contract entered into or renewed on or after
399	399	the effective date of this Act. A contract entered into or renewed
400	400	before the effective date of this Act is governed by the law in
401	401	effect on the date the contract was entered into or renewed, and
402	402	that law is continued in effect for that purpose.
403	403	SECTION 3. If before implementing any provision of this Act
404	404	a state agency determines that a waiver or authorization from a
405	405	federal agency is necessary for implementation of that provision,
406	406	the agency affected by the provision shall request the waiver or
407	407	authorization and may delay implementing that provision until the
408	408	waiver or authorization is granted.
409	409	SECTION 4. This Act takes effect September 1, 2021.