Bill Text: TX HB3459 | 2021-2022 | 87th Legislature | Enrolled

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Bill Title: Relating to preauthorization requirements for certain health care services and utilization review for certain health benefit plans.

Sponsorship: Slight Partisan Bill (Republican 2-1)

Status: (Passed) 2021-06-18 - Effective on 9/1/21 [HB3459 Detail]

Download: Texas-2021-HB3459-Enrolled.html

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H.B. No. 3459

AN ACT
relating to preauthorization requirements for certain health care
services and utilization review for certain health benefit plans.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter E, Chapter 1551, Insurance Code, is
amended by adding Section 1551.2181 to read as follows:
Sec. 1551.2181. EXEMPTION FROM PREAUTHORIZATION
REQUIREMENTS FOR PHYSICIANS AND HEALTH CARE PROVIDERS PROVIDING
CERTAIN HEALTH CARE SERVICES. A preauthorization process used by a
health benefit plan provided under this chapter is subject to the
same limitations and requirements provided by Subchapter N, Chapter
4201, for a preauthorization process used by an insurer.
SECTION 2. Subchapter D, Chapter 1575, Insurance Code, is
amended by adding Section 1575.1701 to read as follows:
Sec. 1575.1701. EXEMPTION FROM PREAUTHORIZATION
REQUIREMENTS FOR PHYSICIANS AND HEALTH CARE PROVIDERS PROVIDING
CERTAIN HEALTH CARE SERVICES. A preauthorization process used by a
health benefit plan provided under this chapter is subject to the
same limitations and requirements provided by Subchapter N, Chapter
4201, for a preauthorization process used by an insurer.
SECTION 3. Subchapter C, Chapter 1579, Insurance Code, is
amended by adding Section 1579.1061 to read as follows:
Sec. 1579.1061. EXEMPTION FROM PREAUTHORIZATION
REQUIREMENTS FOR PHYSICIANS AND HEALTH CARE PROVIDERS PROVIDING
CERTAIN HEALTH CARE SERVICES. A preauthorization process used by a
health coverage plan provided under this chapter is subject to the
same limitations and requirements provided by Subchapter N, Chapter
4201, for a preauthorization process used by an insurer.
SECTION 4. Section 4201.206, Insurance Code, is amended to
read as follows:
Sec. 4201.206. OPPORTUNITY TO DISCUSS TREATMENT BEFORE
ADVERSE DETERMINATION. (a) Subject to Subsection (b) and the
notice requirements of Subchapter G, before an adverse
determination is issued by a utilization review agent who questions
the medical necessity, the appropriateness, or the experimental or
investigational nature of a health care service, the agent shall
provide the health care provider who ordered, requested, provided,
or is to provide the service a reasonable opportunity to discuss
with a physician licensed to practice medicine in this state the
patient's treatment plan and the clinical basis for the agent's
determination.
(b) If the health care service described by Subsection (a)
was ordered, requested, or provided, or is to be provided by a
physician, the opportunity described by that subsection must be
with a physician licensed to practice medicine in this state and who
has the same or similar specialty as the physician.
SECTION 5. Chapter 4201, Insurance Code, is amended by
adding Subchapter N to read as follows:
SUBCHAPTER N. EXEMPTION FROM PREAUTHORIZATION REQUIREMENTS FOR
PHYSICIANS AND PROVIDERS PROVIDING CERTAIN HEALTH CARE SERVICES
Sec. 4201.651. DEFINITIONS. (a) In this subchapter,
"preauthorization" means a determination by a health maintenance
organization, insurer, or person contracting with a health
maintenance organization or insurer that health care services
proposed to be provided to a patient are medically necessary and
appropriate.
(b) In this subchapter, terms defined by Section 843.002,
including "health care services," "physician," and "provider,"
have the meanings assigned by that section.
Sec. 4201.652. APPLICABILITY OF SUBCHAPTER. This
subchapter applies only to:
(1) a health benefit plan offered by a health
maintenance organization operating under Chapter 843, except that
this subchapter does not apply to:
(A) the child health plan program under Chapter
62, Health and Safety Code, or the health benefits plan for children
under Chapter 63, Health and Safety Code; or
(B) the state Medicaid program, including the
Medicaid managed care program operated under Chapter 533,
Government Code;
(2) a preferred provider benefit plan or exclusive
provider benefit plan offered by an insurer under Chapter 1301; and
(3) a person who contracts with a health maintenance
organization or insurer to issue preauthorization determinations
or perform the functions described in this subchapter for a health
benefit plan to which this subchapter applies.
Sec. 4201.653. EXEMPTION FROM PREAUTHORIZATION
REQUIREMENTS FOR PHYSICIANS AND PROVIDERS PROVIDING CERTAIN HEALTH
CARE SERVICES. (a) A health maintenance organization or an insurer
that uses a preauthorization process for health care services may
not require a physician or provider to obtain preauthorization for
a particular health care service if, in the most recent six-month
evaluation period, as described by Subsection (b), the health
maintenance organization or insurer has approved or would have
approved not less than 90 percent of the preauthorization requests
submitted by the physician or provider for the particular health
care service.
(b) Except as provided by Subsection (c), a health
maintenance organization or insurer shall evaluate whether a
physician or provider qualifies for an exemption from
preauthorization requirements under Subsection (a) once every six
months.
(c) A health maintenance organization or insurer may
continue an exemption under Subsection (a) without evaluating
whether the physician or provider qualifies for the exemption under
Subsection (a) for a particular evaluation period.
(d) A physician or provider is not required to request an
exemption under Subsection (a) to qualify for the exemption.
Sec. 4201.654. DURATION OF PREAUTHORIZATION EXEMPTION. (a)
A physician's or provider's exemption from preauthorization
requirements under Section 4201.653 remains in effect until:
(1) the 30th day after the date the health maintenance
organization or insurer notifies the physician or provider of the
health maintenance organization's or insurer's determination to
rescind the exemption under Section 4201.655, if the physician or
provider does not appeal the health maintenance organization's or
insurer's determination; or
(2) if the physician or provider appeals the
determination, the fifth day after the date the independent review
organization affirms the health maintenance organization's or
insurer's determination to rescind the exemption.
(b) If a health maintenance organization or insurer does not
finalize a rescission determination as specified in Subsection (a),
then the physician or provider is considered to have met the
criteria under Section 4201.653 to continue to qualify for the
exemption.
Sec. 4201.655. DENIAL OR RESCISSION OF PREAUTHORIZATION
EXEMPTION. (a) A health maintenance organization or insurer may
rescind an exemption from preauthorization requirements under
Section 4201.653 only:
(1) during January or June of each year;
(2) if the health maintenance organization or insurer
makes a determination, on the basis of a retrospective review of a
random sample of not fewer than five and no more than 20 claims
submitted by the physician or provider during the most recent
evaluation period described by Section 4201.653(b), that less than
90 percent of the claims for the particular health care service met
the medical necessity criteria that would have been used by the
health maintenance organization or insurer when conducting
preauthorization review for the particular health care service
during the relevant evaluation period; and
(3) if the health maintenance organization or insurer
complies with other applicable requirements specified in this
section, including:
(A) notifying the physician or provider not less
than 25 days before the proposed rescission is to take effect; and
(B) providing with the notice under Paragraph
(A):
(i) the sample information used to make the
determination under Subdivision (2); and
(ii) a plain language explanation of how
the physician or provider may appeal and seek an independent review
of the determination.
(b) A determination made under Subsection (a)(2) must be
made by an individual licensed to practice medicine in this state.
For a determination made under Subsection (a)(2) with respect to a
physician, the determination must be made by an individual licensed
to practice medicine in this state who has the same or similar
specialty as that physician.
(c) A health maintenance organization or insurer may deny an
exemption from preauthorization requirements under Section
4201.653 only if:
(1) the physician or provider does not have the
exemption at the time of the relevant evaluation period; and
(2) the health maintenance organization or insurer
provides the physician or provider with actual statistics and data
for the relevant preauthorization request evaluation period and
detailed information sufficient to demonstrate that the physician
or provider does not meet the criteria for an exemption from
preauthorization requirements for the particular health care
service under Section 4201.653.
Sec. 4201.656. INDEPENDENT REVIEW OF EXEMPTION
DETERMINATION. (a) A physician or provider has a right to a review
of an adverse determination regarding a preauthorization exemption
be conducted by an independent review organization. A health
maintenance organization or insurer may not require a physician or
provider to engage in an internal appeal process before requesting
a review by an independent review organization under this section.
(b) A health maintenance organization or insurer shall pay:
(1) for any appeal or independent review of an adverse
determination regarding a preauthorization exemption requested
under this section; and
(2) a reasonable fee determined by the Texas Medical
Board for any copies of medical records or other documents
requested from a physician or provider during an exemption
rescission review requested under this section.
(c) An independent review organization must complete an
expedited review of an adverse determination regarding a
preauthorization exemption not later than the 30th day after the
date a physician or provider files the request for a review under
this section.
(d) A physician or provider may request that the independent
review organization consider another random sample of not less than
five and no more than 20 claims submitted to the health maintenance
organization or insurer by the physician or provider during the
relevant evaluation period for the relevant health care service as
part of its review. If the physician or provider makes a request
under this subsection, the independent review organization shall
base its determination on the medical necessity of claims reviewed
by the health maintenance organization or insurer under Section
4201.655 and reviewed under this subsection.
Sec. 4201.657. EFFECT OF APPEAL OR INDEPENDENT REVIEW
DETERMINATION. (a) A health maintenance organization or insurer
is bound by an appeal or independent review determination that does
not affirm the determination made by the health maintenance
organization or insurer to rescind a preauthorization exemption.
(b) A health maintenance organization or insurer may not
retroactively deny a health care service on the basis of a
rescission of an exemption, even if the health maintenance
organization's or insurer's determination to rescind the
preauthorization exemption is affirmed by an independent review
organization.
(c) If a determination of a preauthorization exemption made
by the health maintenance organization or insurer is overturned on
review by an independent review organization, the health
maintenance organization or insurer:
(1) may not attempt to rescind the exemption before
the end of the next evaluation period that occurs; and
(2) may only rescind the exemption after if the health
maintenance organization or insurer complies with Sections
4201.655 and 4201.656.
Sec. 4201.658. ELIGIBILITY FOR PREAUTHORIZATION EXEMPTION
FOLLOWING FINALIZED EXEMPTION RESCISSION OR DENIAL. After a final
determination or review affirming the rescission or denial of an
exemption for a specific health care service under Section
4201.653, a physician or provider is eligible for consideration of
an exemption for the same health care service after the six-month
evaluation period that follows the evaluation period which formed
the basis of the rescission or denial of an exemption.
Sec. 4201.659. EFFECT OF PREAUTHORIZATION EXEMPTION. (a)
A health maintenance organization or insurer may not deny or reduce
payment to a physician or provider for a health care service for
which the physician or provider has qualified for an exemption from
preauthorization requirements under Section 4201.653 based on
medical necessity or appropriateness of care unless the physician
or provider:
(1) knowingly and materially misrepresented the
health care service in a request for payment submitted to the health
maintenance organization or insurer with the specific intent to
deceive and obtain an unlawful payment from the health maintenance
organization or insurer; or
(2) failed to substantially perform the health care
service.
(b) A health maintenance organization or an insurer may not
conduct a retrospective review of a health care service subject to
an exemption except:
(1) to determine if the physician or provider still
qualifies for an exemption under this subchapter; or
(2) if the health maintenance organization or insurer
has a reasonable cause to suspect a basis for denial exists under
Subsection (a).
(c) For a retrospective review described by Subsection
(b)(2), nothing in this subchapter may be construed to modify or
otherwise affect:
(1) the requirements under or application of Section
4201.305, including any timeframes specified by that section; or
(2) any other applicable law, except to prescribe the
only circumstances under which:
(A) a retrospective utilization review may occur
as specified by Subsection (b)(2); or
(B) payment may be denied or reduced as specified
by Subsection (a).
(d) Not later than five days after qualifying for an
exemption from preauthorization requirements under Section
4201.653, a health maintenance organization or insurer must provide
to a physician or provider a notice that includes:
(1) a statement that the physician or provider
qualifies for an exemption from preauthorization requirements
under Section 4201.653;
(2) a list of the health care services and health
benefit plans to which the exemption applies; and
(3) a statement of the duration of the exemption.
(e) If a physician or provider submits a preauthorization
request for a health care service for which the physician or
provider qualifies for an exemption from preauthorization
requirements under Section 4201.653, the health maintenance
organization or insurer must promptly provide a notice to the
physician or provider that includes:
(1) the information described by Subsection (d); and
(2) a notification of the health maintenance
organization's or insurer's payment requirements.
(f) Nothing in this subchapter may be construed to:
(1) authorize a physician or provider to provide a
health care service outside the scope of the provider's applicable
license issued under Title 3, Occupations Code; or
(2) require a health maintenance organization or
insurer to pay for a health care service described by Subdivision
(1) that is performed in violation of the laws of this state.
SECTION 6. Subchapter N, Chapter 4201, Insurance Code, as
added by this Act, applies only to a request for preauthorization of
health care services made on or after January 1, 2022. A request for
preauthorization of health care services made before January 1,
2022, is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 7. Section 4201.206, Insurance Code, as amended by
this Act, applies only to a utilization review requested on or after
the effective date of this Act. A utilization review requested
before the effective date of this Act is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2021.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3459 was passed by the House on May 7,
2021, by the following vote: Yeas 127, Nays 16, 1 present, not
voting; that the House concurred in Senate amendments to H.B. No.
3459 on May 28, 2021, by the following vote: Yeas 140, Nays 4, 2
present, not voting; and that the House adopted H.C.R. No. 112
authorizing certain corrections in H.B. No. 3459 on May 29, 2021, by
the following vote: Yeas 139, Nays 1, 1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3459 was passed by the Senate, with
amendments, on May 22, 2021, by the following vote: Yeas 29, Nays
1; and that the Senate adopted H.C.R. No. 112 authorizing certain
corrections in H.B. No. 3459 on May 30, 2021, by the following vote:
Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor