Texas 2021 - 87th Regular

Texas Senate Bill SB431 Compare Versions

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

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1	1	87R3684 KKR-F
2	2	By: Hinojosa S.B. No. 431
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to claims processes and reimbursement for, and overpayment
8	8	recoupment processes imposed on, health care providers under
9	9	Medicaid.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 531.1135(c), Government Code, is amended
12	12	to read as follows:
13	13	(c) Notwithstanding any other law, a managed care
14	14	organization may not attempt to recover an overpayment described by
15	15	Subsection (a) until:
16	16	(1) the provider has exhausted all rights to an
17	17	appeal; and
18	18	(2) if the underlying claim is subject to recoupment
19	19	by the commission's office of the inspector general, a final
20	20	determination by the State Office of Administrative Hearings
21	21	affirming the overpayment.
22	22	SECTION 2. Section 531.024172(d), Government Code, is
23	23	amended to read as follows:
24	24	(d) In implementing the electronic visit verification
25	25	system:
26	26	(1) subject to Subsection (e), the executive
27	27	commissioner shall adopt compliance standards for health care
28	28	providers; and
29	29	(2) the commission shall ensure that:
30	30	(A) the information required to be reported by
31	31	health care providers is standardized across managed care
32	32	organizations that contract with the commission to provide health
33	33	care services to Medicaid recipients and across commission
34	34	programs;
35	35	(B) processes required by managed care
36	36	organizations to retrospectively correct data are standardized and
37	37	publicly accessible to health care providers; [and]
38	38	(C) standardized processes are established for
39	39	addressing the failure of a managed care organization to provide a
40	40	timely authorization for delivering services necessary to ensure
41	41	continuity of care; and
42	42	(D) a health care provider is allowed to:
43	43	(i) enter a variable schedule into the
44	44	electronic visit verification system; and
45	45	(ii) submit a claim to be reimbursed for an
46	46	amount of time that is less than the verified amount of time.
47	47	SECTION 3. Section 533.005(a), Government Code, is amended
48	48	to read as follows:
49	49	(a) A contract between a managed care organization and the
50	50	commission for the organization to provide health care services to
51	51	recipients must contain:
52	52	(1) procedures to ensure accountability to the state
53	53	for the provision of health care services, including procedures for
54	54	financial reporting, quality assurance, utilization review, and
55	55	assurance of contract and subcontract compliance;
56	56	(2) capitation rates that ensure the cost-effective
57	57	provision of quality health care;
58	58	(3) a requirement that the managed care organization
59	59	provide ready access to a person who assists recipients in
60	60	resolving issues relating to enrollment, plan administration,
61	61	education and training, access to services, and grievance
62	62	procedures;
63	63	(4) a requirement that the managed care organization
64	64	provide ready access to a person who assists providers in resolving
65	65	issues relating to payment, plan administration, education and
66	66	training, and grievance procedures;
67	67	(5) a requirement that the managed care organization
68	68	provide information and referral about the availability of
69	69	educational, social, and other community services that could
70	70	benefit a recipient;
71	71	(6) procedures for recipient outreach and education;
72	72	(7) a requirement that the managed care organization
73	73	make payment to a physician or provider for health care services
74	74	rendered to a recipient under a managed care plan on any claim for
75	75	payment that is received with documentation reasonably necessary
76	76	for the managed care organization to process the claim:
77	77	(A) not later than:
78	78	(i) the 10th day after the date the claim is
79	79	received if the claim relates to services provided by a nursing
80	80	facility, intermediate care facility, or group home;
81	81	(ii) the 30th day after the date the claim
82	82	is received if the claim relates to the provision of long-term
83	83	services and supports not subject to Subparagraph (i); and
84	84	(iii) the 45th day after the date the claim
85	85	is received if the claim is not subject to Subparagraph (i) or (ii);
86	86	or
87	87	(B) within a period, not to exceed 180 [60] days,
88	88	specified by a written agreement between the physician or provider
89	89	and the managed care organization;
90	90	(7-a) a requirement that the managed care organization
91	91	demonstrate to the commission that the organization pays claims
92	92	described by Subdivision (7)(A)(ii) on average not later than the
93	93	21st day after the date the claim is received by the organization;
94	94	(8) a requirement that the commission, on the date of a
95	95	recipient's enrollment in a managed care plan issued by the managed
96	96	care organization, inform the organization of the recipient's
97	97	Medicaid certification date;
98	98	(9) a requirement that the managed care organization
99	99	comply with Section 533.006 as a condition of contract retention
100	100	and renewal;
101	101	(10) a requirement that the managed care organization
102	102	provide the information required by Section 533.012 and otherwise
103	103	comply and cooperate with the commission's office of inspector
104	104	general and the office of the attorney general;
105	105	(11) a requirement that the managed care
106	106	organization's usages of out-of-network providers or groups of
107	107	out-of-network providers may not exceed limits for those usages
108	108	relating to total inpatient admissions, total outpatient services,
109	109	and emergency room admissions determined by the commission;
110	110	(12) if the commission finds that a managed care
111	111	organization has violated Subdivision (11), a requirement that the
112	112	managed care organization reimburse an out-of-network provider for
113	113	health care services at a rate that is equal to the allowable rate
114	114	for those services, as determined under Sections 32.028 and
115	115	32.0281, Human Resources Code;
116	116	(13) a requirement that, notwithstanding any other
117	117	law, including Sections 843.312 and 1301.052, Insurance Code, the
118	118	organization:
119	119	(A) use advanced practice registered nurses and
120	120	physician assistants in addition to physicians as primary care
121	121	providers to increase the availability of primary care providers in
122	122	the organization's provider network; and
123	123	(B) treat advanced practice registered nurses
124	124	and physician assistants in the same manner as primary care
125	125	physicians with regard to:
126	126	(i) selection and assignment as primary
127	127	care providers;
128	128	(ii) inclusion as primary care providers in
129	129	the organization's provider network; and
130	130	(iii) inclusion as primary care providers
131	131	in any provider network directory maintained by the organization;
132	132	(14) a requirement that the managed care organization
133	133	reimburse a federally qualified health center or rural health
134	134	clinic for health care services provided to a recipient outside of
135	135	regular business hours, including on a weekend day or holiday, at a
136	136	rate that is equal to the allowable rate for those services as
137	137	determined under Section 32.028, Human Resources Code, if the
138	138	recipient does not have a referral from the recipient's primary
139	139	care physician;
140	140	(15) a requirement that the managed care organization
141	141	develop, implement, and maintain a system for tracking and
142	142	resolving all provider appeals related to claims payment, including
143	143	a process that will require:
144	144	(A) a tracking mechanism to document the status
145	145	and final disposition of each provider's claims payment appeal;
146	146	(B) the contracting with physicians who are not
147	147	network providers and who are of the same or related specialty as
148	148	the appealing physician to resolve claims disputes related to
149	149	denial on the basis of medical necessity that remain unresolved
150	150	subsequent to a provider appeal;
151	151	(C) the determination of the physician resolving
152	152	the dispute to be binding on the managed care organization and
153	153	provider; and
154	154	(D) the managed care organization to allow a
155	155	provider with a claim that has not been paid before the time
156	156	prescribed by Subdivision (7)(A)(ii) to initiate an appeal of that
157	157	claim;
158	158	(16) a requirement that a medical director who is
159	159	authorized to make medical necessity determinations is available to
160	160	the region where the managed care organization provides health care
161	161	services;
162	162	(17) a requirement that the managed care organization
163	163	ensure that a medical director and patient care coordinators and
164	164	provider and recipient support services personnel are located in
165	165	the South Texas service region, if the managed care organization
166	166	provides a managed care plan in that region;
167	167	(18) a requirement that the managed care organization
168	168	provide special programs and materials for recipients with limited
169	169	English proficiency or low literacy skills;
170	170	(19) a requirement that the managed care organization
171	171	develop and establish a process for responding to provider appeals
172	172	in the region where the organization provides health care services;
173	173	(20) a requirement that the managed care organization:
174	174	(A) develop and submit to the commission, before
175	175	the organization begins to provide health care services to
176	176	recipients, a comprehensive plan that describes how the
177	177	organization's provider network complies with the provider access
178	178	standards established under Section 533.0061;
179	179	(B) as a condition of contract retention and
180	180	renewal:
181	181	(i) continue to comply with the provider
182	182	access standards established under Section 533.0061; and
183	183	(ii) make substantial efforts, as
184	184	determined by the commission, to mitigate or remedy any
185	185	noncompliance with the provider access standards established under
186	186	Section 533.0061;
187	187	(C) pay liquidated damages for each failure, as
188	188	determined by the commission, to comply with the provider access
189	189	standards established under Section 533.0061 in amounts that are
190	190	reasonably related to the noncompliance; and
191	191	(D) regularly, as determined by the commission,
192	192	submit to the commission and make available to the public a report
193	193	containing data on the sufficiency of the organization's provider
194	194	network with regard to providing the care and services described
195	195	under Section 533.0061(a) and specific data with respect to access
196	196	to primary care, specialty care, long-term services and supports,
197	197	nursing services, and therapy services on the average length of
198	198	time between:
199	199	(i) the date a provider requests prior
200	200	authorization for the care or service and the date the organization
201	201	approves or denies the request; and
202	202	(ii) the date the organization approves a
203	203	request for prior authorization for the care or service and the date
204	204	the care or service is initiated;
205	205	(21) a requirement that the managed care organization
206	206	demonstrate to the commission, before the organization begins to
207	207	provide health care services to recipients, that, subject to the
208	208	provider access standards established under Section 533.0061:
209	209	(A) the organization's provider network has the
210	210	capacity to serve the number of recipients expected to enroll in a
211	211	managed care plan offered by the organization;
212	212	(B) the organization's provider network
213	213	includes:
214	214	(i) a sufficient number of primary care
215	215	providers;
216	216	(ii) a sufficient variety of provider
217	217	types;
218	218	(iii) a sufficient number of providers of
219	219	long-term services and supports and specialty pediatric care
220	220	providers of home and community-based services; and
221	221	(iv) providers located throughout the
222	222	region where the organization will provide health care services;
223	223	and
224	224	(C) health care services will be accessible to
225	225	recipients through the organization's provider network to a
226	226	comparable extent that health care services would be available to
227	227	recipients under a fee-for-service or primary care case management
228	228	model of Medicaid managed care;
229	229	(22) a requirement that the managed care organization
230	230	develop a monitoring program for measuring the quality of the
231	231	health care services provided by the organization's provider
232	232	network that:
233	233	(A) incorporates the National Committee for
234	234	Quality Assurance's Healthcare Effectiveness Data and Information
235	235	Set (HEDIS) measures or, as applicable, the national core
236	236	indicators adult consumer survey and the national core indicators
237	237	child family survey for individuals with an intellectual or
238	238	developmental disability;
239	239	(B) focuses on measuring outcomes; and
240	240	(C) includes the collection and analysis of
241	241	clinical data relating to prenatal care, preventive care, mental
242	242	health care, and the treatment of acute and chronic health
243	243	conditions and substance abuse;
244	244	(23) subject to Subsection (a-1), a requirement that
245	245	the managed care organization develop, implement, and maintain an
246	246	outpatient pharmacy benefit plan for its enrolled recipients:
247	247	(A) that, except as provided by Paragraph
248	248	(L)(ii), exclusively employs the vendor drug program formulary and
249	249	preserves the state's ability to reduce waste, fraud, and abuse
250	250	under Medicaid;
251	251	(B) that adheres to the applicable preferred drug
252	252	list adopted by the commission under Section 531.072;
253	253	(C) that, except as provided by Paragraph (L)(i),
254	254	includes the prior authorization procedures and requirements
255	255	prescribed by or implemented under Sections 531.073(b), (c), and
256	256	(g) for the vendor drug program;
257	257	(C-1) that does not require a clinical,
258	258	nonpreferred, or other prior authorization for any antiretroviral
259	259	drug, as defined by Section 531.073, or a step therapy or other
260	260	protocol, that could restrict or delay the dispensing of the drug
261	261	except to minimize fraud, waste, or abuse;
262	262	(D) for purposes of which the managed care
263	263	organization:
264	264	(i) may not negotiate or collect rebates
265	265	associated with pharmacy products on the vendor drug program
266	266	formulary; and
267	267	(ii) may not receive drug rebate or pricing
268	268	information that is confidential under Section 531.071;
269	269	(E) that complies with the prohibition under
270	270	Section 531.089;
271	271	(F) under which the managed care organization may
272	272	not prohibit, limit, or interfere with a recipient's selection of a
273	273	pharmacy or pharmacist of the recipient's choice for the provision
274	274	of pharmaceutical services under the plan through the imposition of
275	275	different copayments;
276	276	(G) that allows the managed care organization or
277	277	any subcontracted pharmacy benefit manager to contract with a
278	278	pharmacist or pharmacy providers separately for specialty pharmacy
279	279	services, except that:
280	280	(i) the managed care organization and
281	281	pharmacy benefit manager are prohibited from allowing exclusive
282	282	contracts with a specialty pharmacy owned wholly or partly by the
283	283	pharmacy benefit manager responsible for the administration of the
284	284	pharmacy benefit program; and
285	285	(ii) the managed care organization and
286	286	pharmacy benefit manager must adopt policies and procedures for
287	287	reclassifying prescription drugs from retail to specialty drugs,
288	288	and those policies and procedures must be consistent with rules
289	289	adopted by the executive commissioner and include notice to network
290	290	pharmacy providers from the managed care organization;
291	291	(H) under which the managed care organization may
292	292	not prevent a pharmacy or pharmacist from participating as a
293	293	provider if the pharmacy or pharmacist agrees to comply with the
294	294	financial terms and conditions of the contract as well as other
295	295	reasonable administrative and professional terms and conditions of
296	296	the contract;
297	297	(I) under which the managed care organization may
298	298	include mail-order pharmacies in its networks, but may not require
299	299	enrolled recipients to use those pharmacies, and may not charge an
300	300	enrolled recipient who opts to use this service a fee, including
301	301	postage and handling fees;
302	302	(J) under which the managed care organization or
303	303	pharmacy benefit manager, as applicable, must pay claims in
304	304	accordance with Section 843.339, Insurance Code;
305	305	(K) under which the managed care organization or
306	306	pharmacy benefit manager, as applicable:
307	307	(i) to place a drug on a maximum allowable
308	308	cost list, must ensure that:
309	309	(a) the drug is listed as "A" or "B"
310	310	rated in the most recent version of the United States Food and Drug
311	311	Administration's Approved Drug Products with Therapeutic
312	312	Equivalence Evaluations, also known as the Orange Book, has an "NR"
313	313	or "NA" rating or a similar rating by a nationally recognized
314	314	reference; and
315	315	(b) the drug is generally available
316	316	for purchase by pharmacies in the state from national or regional
317	317	wholesalers and is not obsolete;
318	318	(ii) must provide to a network pharmacy
319	319	provider, at the time a contract is entered into or renewed with the
320	320	network pharmacy provider, the sources used to determine the
321	321	maximum allowable cost pricing for the maximum allowable cost list
322	322	specific to that provider;
323	323	(iii) must review and update maximum
324	324	allowable cost price information at least once every seven days to
325	325	reflect any modification of maximum allowable cost pricing;
326	326	(iv) must, in formulating the maximum
327	327	allowable cost price for a drug, use only the price of the drug and
328	328	drugs listed as therapeutically equivalent in the most recent
329	329	version of the United States Food and Drug Administration's
330	330	Approved Drug Products with Therapeutic Equivalence Evaluations,
331	331	also known as the Orange Book;
332	332	(v) must establish a process for
333	333	eliminating products from the maximum allowable cost list or
334	334	modifying maximum allowable cost prices in a timely manner to
335	335	remain consistent with pricing changes and product availability in
336	336	the marketplace;
337	337	(vi) must:
338	338	(a) provide a procedure under which a
339	339	network pharmacy provider may challenge a listed maximum allowable
340	340	cost price for a drug;
341	341	(b) respond to a challenge not later
342	342	than the 15th day after the date the challenge is made;
343	343	(c) if the challenge is successful,
344	344	make an adjustment in the drug price effective on the date the
345	345	challenge is resolved and make the adjustment applicable to all
346	346	similarly situated network pharmacy providers, as determined by the
347	347	managed care organization or pharmacy benefit manager, as
348	348	appropriate;
349	349	(d) if the challenge is denied,
350	350	provide the reason for the denial; and
351	351	(e) report to the commission every 90
352	352	days the total number of challenges that were made and denied in the
353	353	preceding 90-day period for each maximum allowable cost list drug
354	354	for which a challenge was denied during the period;
355	355	(vii) must notify the commission not later
356	356	than the 21st day after implementing a practice of using a maximum
357	357	allowable cost list for drugs dispensed at retail but not by mail;
358	358	and
359	359	(viii) must provide a process for each of
360	360	its network pharmacy providers to readily access the maximum
361	361	allowable cost list specific to that provider; and
362	362	(L) under which the managed care organization or
363	363	pharmacy benefit manager, as applicable:
364	364	(i) may not require a prior authorization,
365	365	other than a clinical prior authorization or a prior authorization
366	366	imposed by the commission to minimize the opportunity for waste,
367	367	fraud, or abuse, for or impose any other barriers to a drug that is
368	368	prescribed to a child enrolled in the STAR Kids managed care program
369	369	for a particular disease or treatment and that is on the vendor drug
370	370	program formulary or require additional prior authorization for a
371	371	drug included in the preferred drug list adopted under Section
372	372	531.072;
373	373	(ii) must provide for continued access to a
374	374	drug prescribed to a child enrolled in the STAR Kids managed care
375	375	program, regardless of whether the drug is on the vendor drug
376	376	program formulary or, if applicable on or after August 31, 2023, the
377	377	managed care organization's formulary;
378	378	(iii) may not use a protocol that requires a
379	379	child enrolled in the STAR Kids managed care program to use a
380	380	prescription drug or sequence of prescription drugs other than the
381	381	drug that the child's physician recommends for the child's
382	382	treatment before the managed care organization provides coverage
383	383	for the recommended drug; and
384	384	(iv) must pay liquidated damages to the
385	385	commission for each failure, as determined by the commission, to
386	386	comply with this paragraph in an amount that is a reasonable
387	387	forecast of the damages caused by the noncompliance;
388	388	(24) a requirement that the managed care organization
389	389	and any entity with which the managed care organization contracts
390	390	for the performance of services under a managed care plan disclose,
391	391	at no cost, to the commission and, on request, the office of the
392	392	attorney general all discounts, incentives, rebates, fees, free
393	393	goods, bundling arrangements, and other agreements affecting the
394	394	net cost of goods or services provided under the plan;
395	395	(25) a requirement that the managed care organization
396	396	not implement significant, nonnegotiated, across-the-board
397	397	provider reimbursement rate reductions unless:
398	398	(A) subject to Subsection (a-3), the
399	399	organization has the prior approval of the commission to make the
400	400	reductions; or
401	401	(B) the rate reductions are based on changes to
402	402	the Medicaid fee schedule or cost containment initiatives
403	403	implemented by the commission; and
404	404	(26) a requirement that the managed care organization
405	405	make initial and subsequent primary care provider assignments and
406	406	changes.
407	407	SECTION 4. (a) Section 533.005(a), Government Code, as
408	408	amended by this Act, applies only to a contract between the Health
409	409	and Human Services Commission and a managed care organization that
410	410	is entered into or renewed on or after the effective date of this
411	411	Act.
412	412	(b) To the extent permitted by the terms of the contract,
413	413	the Health and Human Services Commission shall seek to amend a
414	414	contract entered into before the effective date of this Act with a
415	415	managed care organization to comply with Section 533.005(a),
416	416	Government Code, as amended by this Act.
417	417	SECTION 5. If before implementing any provision of this Act
418	418	a state agency determines that a waiver or authorization from a
419	419	federal agency is necessary for implementation of that provision,
420	420	the agency affected by the provision shall request the waiver or
421	421	authorization and may delay implementing that provision until the
422	422	waiver or authorization is granted.
423	423	SECTION 6. This Act takes effect September 1, 2021.