By:  Nelson, Harris, Sibley                            S.B. No. 384

              Madla, Cain, Moncrief

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to utilization review under health benefit plans and

 1-2     health insurance policies.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 2, Article 21.58A, Insurance Code, is

 1-5     amended to read as follows:

 1-6           Sec. 2.  DEFINITIONS.  In this article:

 1-7                 (1)  "Administrative procedure act" means Chapter 2001,

 1-8     Government Code [the Administrative Procedure and Texas Register

 1-9     Act (Article 6252-13a, Vernon's Texas Civil Statutes)].

1-10                 (2)  "Administrator" means a person holding a

1-11     certificate of authority under Article 21.07-6 of this code.

1-12                 (3)  "Adverse determination" means a determination by a

1-13     utilization review agent that the health care services furnished or

1-14     proposed to be furnished to a patient are not medically necessary

1-15     or not appropriate in the allocation of health care resources.

1-16                 (4)  ["Board" means the State Board of Insurance.]

1-17                 [(5)]  "Certificate" means a certificate of

1-18     registration granted by the commissioner [board] to a utilization

1-19     review agent.

1-20                 (5) [(6)]  "Commissioner" means the commissioner of

1-21     insurance.

1-22                 (6) [(7)]  "Emergency care" means health care services

1-23     provided in a hospital emergency facility or comparable facility to

 2-1     evaluate and stabilize medical conditions of a recent onset and

 2-2     severity, including but not limited to severe pain, that would lead

 2-3     a prudent layperson possessing an average knowledge of medicine and

 2-4     health to believe that his or her condition, sickness, or injury is

 2-5     of such a nature that failure to get immediate medical care could

 2-6     result in:

 2-7                       (A)  placing the patient's health in serious

 2-8     jeopardy;

 2-9                       (B)  serious impairment to bodily functions;

2-10                       (C)  serious dysfunction of any bodily organ or

2-11     part;

2-12                       (D)  serious disfigurement; or

2-13                       (E)  in the case of a pregnant woman, serious

2-14     jeopardy to the health of the fetus [bona fide emergency services

2-15     as defined in Section 2(I), Chapter 397, Acts of the 54th

2-16     Legislature, 1955 (Article 3.70-2, Vernon's Texas Insurance Code)

2-17     and Section 2(t), Texas Health Maintenance Organization Act

2-18     (Article 20A.02, Vernon's Texas Insurance Code)].

2-19                 (7) [(8)]  "Dental plan" means an insurance policy or

2-20     health benefit plan, including a policy written by a company

2-21     subject to Chapter 20 of this code, that provides coverage for

2-22     expenses for dental services.

2-23                 (8) [(9)]  "Enrollee" means a person covered by a

2-24     health insurance policy or plan and includes a person who is

2-25     covered as an eligible dependent of another person.

 3-1                 (9) [(10)]  "Health benefit plan" means a plan of

 3-2     benefits that defines the coverage provisions for health care for

 3-3     enrollees offered or provided by any organization, public or

 3-4     private, other than health insurance.

 3-5                 (10) [(11)]  "Health care provider" means any person,

 3-6     corporation, facility, or institution licensed by a state to

 3-7     provide or otherwise lawfully providing health care services that

 3-8     is eligible for independent reimbursement for those services.

 3-9                 (11) [(12)]  "Health insurance policy" means an

3-10     insurance policy, including a policy written by a company subject

3-11     to Chapter 20 of this code, that provides coverage for medical or

3-12     surgical expenses incurred as a result of accident or sickness.

3-13                 (12)  "Life threatening" means diseases or conditions

3-14     where the likelihood of death is high unless the course of the

3-15     disease or condition is interrupted.

3-16                 (13)  "Nurse" means a professional or registered nurse,

3-17     a licensed vocational nurse, or a licensed practical nurse.

3-18                 (14)  "Open meetings law" means Chapter 551, Government

3-19     Code [271, Acts of the 60th Legislature, Regular Session, 1967

3-20     (Article 6252-17, Vernon's Texas Civil Statutes)].

3-21                 (15)  "Open records law" means Chapter 552, Government

3-22     Code [424, Acts of the 63rd Legislature, Regular Session, 1973

3-23     (Article 6252-17a, Vernon's Texas Civil Statutes)].

3-24                 (16)  "Patient" means the enrollee or an eligible

3-25     dependent of the enrollee under a health benefit plan or health

 4-1     insurance plan.

 4-2                 (17)  "Payor" means:

 4-3                       (A)  an insurer writing health insurance

 4-4     policies;

 4-5                       (B)  any preferred provider organization, health

 4-6     maintenance organization, self-insurance plan; or

 4-7                       (C)  any other person or entity which provides,

 4-8     offers to provide, or administers hospital, outpatient, medical, or

 4-9     other health benefits to persons treated by a health care provider

4-10     in this state pursuant to any policy, plan, or contract.

4-11                 (18)  "Physician" means a licensed doctor of medicine

4-12     or a doctor of osteopathy.

4-13                 (19)  "Provider of record" means the physician or other

4-14     health care provider that has primary responsibility for the care,

4-15     treatment, and services rendered to the enrollee and includes any

4-16     health care facility when treatment is rendered on an inpatient or

4-17     outpatient basis.

4-18                 (20)  "Utilization review" means a system for

4-19     prospective or concurrent review of the medical necessity and

4-20     appropriateness of health care services being provided or proposed

4-21     to be provided to an individual within this state.  Utilization

4-22     review shall not include elective requests for clarification of

4-23     coverage.

4-24                 (21)  "Utilization review agent" means an entity that

4-25     conducts utilization review for:

 5-1                       (A)  an employer with employees in this state who

 5-2     are covered under a health benefit plan or health insurance policy;

 5-3                       (B)  a payor; or

 5-4                       (C)  an administrator.

 5-5                 (22)  "Utilization review plan" means the screening

 5-6     criteria and utilization review procedures of a utilization review

 5-7     agent.

 5-8                 (23)  "Working day" means a weekday, excluding a legal

 5-9     holiday.

5-10           SECTION 2.  Subsections (b), (d), (e), and (f), Section 3,

5-11     Article 21.58A, Insurance Code, are amended to read as follows:

5-12           (b)  The commissioner may only issue a certificate to an

5-13     applicant that has met all the requirements of this article and all

5-14     applicable rules and regulations of the commissioner [board].

5-15           (d)  Certification may be renewed biennially by filing, not

5-16     later than March 1, a renewal form with the commissioner

5-17     accompanied by a renewal fee in an amount set by the commissioner

5-18     [board].

5-19           (e)  The commissioner shall promulgate certification and

5-20     renewal forms to be filed under this section.  The form for initial

5-21     certification must require the following:

5-22                 (1)  the entity's name, address, telephone number, and

5-23     normal business hours;

5-24                 (2)  the name and address of an agent for service of

5-25     process in this state;

 6-1                 (3)  a summary of the utilization review plan, but in

 6-2     no event shall proprietary details be subject to inclusion in the

 6-3     summary;

 6-4                 (4)  information concerning the personnel categories

 6-5     that will perform utilization review for the utilization review

 6-6     agent;

 6-7                 (5)  a copy of the procedure established by the

 6-8     utilization review agent as required by this article for appeal of

 6-9     an adverse determination;

6-10                 (6)  a certification that the utilization review agent

6-11     will comply with the provisions of this article; and

6-12                 (7)  a copy of the procedures for handling oral and

6-13     written complaints by enrollees, patients, or health care

6-14     providers.

6-15           (f)  The commissioner [board] shall establish, administer,

6-16     and enforce the certification and renewal fees under this section

6-17     in amounts not greater than that necessary to cover the cost of

6-18     administration of this article.

6-19           SECTION 3.  Subsections (c), (h), (i), (k), (m), and (n),

6-20     Section 4, Article 21.58A, Insurance Code, are amended to read as

6-21     follows:

6-22           (c)  Personnel employed by or under contract with the

6-23     utilization review agent to perform utilization review shall be

6-24     appropriately trained and qualified.  Personnel who obtain

6-25     information regarding a patient's specific medical condition,

 7-1     diagnosis, and treatment options or protocols directly from the

 7-2     physician or health care provider, either orally or in writing, and

 7-3     who are not physicians shall be nurses or[,] physician assistants.

 7-4     Personnel who obtain other information directly from the physician

 7-5     or health care provider, either orally or in writing, and who are

 7-6     not physicians shall be nurses, physician assistants, registered

 7-7     records administrators, or accredited records technicians, who are

 7-8     either licensed or certified, or shall be individuals who have

 7-9     received formal orientation and training in accordance with

7-10     policies and procedures established by the utilization review agent

7-11     to assure compliance with this section, and a description of such

7-12     policies and procedures shall be filed with the commissioner.  This

7-13     provision shall not be interpreted to require such qualifications

7-14     for personnel who perform clerical or administrative tasks.

7-15           (h)  Utilization review conducted by a utilization review

7-16     agent shall be under the direction of a physician licensed to

7-17     practice medicine by a state licensing agency in the United States.

7-18           (i)  Each utilization review agent shall utilize written

7-19     medically acceptable screening criteria and review procedures which

7-20     are established and periodically evaluated and updated with

7-21     appropriate involvement from physicians, including practicing

7-22     physicians, dentists, and other health care providers.  Utilization

7-23     review decisions shall be made in accordance with currently

7-24     accepted medical or health care practices, taking into account

7-25     special circumstances of each case that may require deviation from

 8-1     the norm stated in the screening criteria.  Screening criteria must

 8-2     be objective, clinically valid, compatible with established

 8-3     principles of health care, and flexible enough to allow deviations

 8-4     from the norms when justified on a case-by-case basis.  Screening

 8-5     criteria must be used to determine only whether to approve the

 8-6     requested treatment.  Denials must be referred to an appropriate

 8-7     physician, dentist, or other health care provider to determine

 8-8     medical necessity.  Such written screening criteria and review

 8-9     procedures shall be available for review and inspection to

8-10     determine appropriateness and compliance as deemed necessary by the

8-11     commissioner and copying as necessary for the commissioner to carry

8-12     out his or her lawful duties under this code, provided, however,

8-13     that any information obtained or acquired under the authority of

8-14     this subsection and article is confidential and privileged and not

8-15     subject to the open records law or subpoena except to the extent

8-16     necessary for the [board or] commissioner to enforce this article.

8-17           (k)  Subject to the notice requirements of Section 5 of this

8-18     article, in any instance where the utilization review agent is

8-19     questioning the medical necessity or appropriateness of health care

8-20     services, the health care provider who ordered the services shall

8-21     be afforded a reasonable opportunity to discuss the plan of

8-22     treatment for the patient and the clinical basis for the

8-23     utilization review agent's decision with a physician [or, in the

8-24     case of a dental plan with a dentist,] prior to issuance of an

8-25     adverse determination.

 9-1           (m)  A utilization review agent shall establish and maintain

 9-2     a complaint system that provides reasonable procedures for the

 9-3     resolution of oral or written complaints initiated by enrollees,

 9-4     patients, or health care providers concerning the utilization

 9-5     review and shall maintain records of such [written] complaints for

 9-6     three [two] years from the time the complaints are filed.  The

 9-7     complaint procedure shall include a written response to the

 9-8     complainant by the agent within 30 [60] days.  The utilization

 9-9     review agent shall submit to the commissioner a summary report of

9-10     all complaints at such times and in such forms as the commissioner

9-11     [board] may require and shall permit the commissioner to examine

9-12     the complaints and all relevant documents at any time.

9-13           (n)  The utilization review agent may delegate utilization

9-14     review to qualified personnel in the hospital or health care

9-15     facility where the health care services were or are to be provided.

9-16     However, such delegation shall not relieve the utilization review

9-17     agent of full responsibility for compliance with this article,

9-18     including the conduct of those to whom utilization review has been

9-19     delegated.

9-20           SECTION 4.  Subsections (c) and (d), Section 5, Article

9-21     21.58A, Insurance Code, are amended to read as follows:

9-22           (c)  In the event of an adverse determination, the

9-23     notification by the utilization review agent must include:

9-24                 (1)  the principal reasons for the adverse

9-25     determination;

 10-1                (2)  the clinical basis for the adverse determination;

 10-2                (3)  a description or the source of the screening

 10-3    criteria that were utilized as guidelines in making the

 10-4    determination; and

 10-5                (4) [(3)]  a description of the procedure for the

 10-6    complaint and appeal process.

 10-7          (d)  The notification of adverse determination required by

 10-8    this section shall be provided by the utilization review agent:

 10-9                (1)  within one working day by telephone or electronic

10-10    transmission to the provider of record in the case of a patient who

10-11    is hospitalized at the time of the adverse determination, to be

10-12    followed by a letter notifying the patient and the provider of

10-13    record of an adverse determination within three working days; [or]

10-14                (2)  within three working days in writing to the

10-15    provider of record and the patient if the patient is not

10-16    hospitalized at the time of the adverse determination; or

10-17                (3)  within the time appropriate to the circumstances

10-18    relating to the delivery of the services and the condition of the

10-19    patient, but in no case to exceed one hour from notification when

10-20    denying poststabilization care subsequent to emergency treatment as

10-21    requested by a treating physician or provider.  In such

10-22    circumstances, notification shall be provided to the treating

10-23    physician or health care provider.

10-24          SECTION 5.  Section 6, Article 21.58A, Insurance Code, is

10-25    amended to read as follows:

 11-1          Sec. 6.  APPEAL OF ADVERSE DETERMINATIONS OF UTILIZATION

 11-2    REVIEW AGENTS.  (a)  A utilization review agent shall maintain and

 11-3    make available a written description of [an] appeal procedures

 11-4    involving [procedure of] an adverse determination.

 11-5          (b)  The procedures for appeals shall be reasonable and shall

 11-6    include the following:

 11-7                (1)  a provision that an enrollee, a person acting on

 11-8    behalf of the enrollee, or the enrollee's physician or health care

 11-9    provider may appeal the adverse determination orally or in writing

11-10    [and shall be provided, on request, a clear and concise statement

11-11    of the clinical basis for the adverse determination];

11-12                (2)  a provision that, within five working days from

11-13    receipt of the appeal, the utilization review agent shall send to

11-14    the appealing party a letter acknowledging the date of the

11-15    utilization review agent's receipt of the appeal and include a list

11-16    of documents needed to be submitted by the appealing party to the

11-17    utilization review agent for the appeal.  Such letter must also

11-18    include provisions listed in this subsection.  When the utilization

11-19    review agent receives an oral appeal of adverse determination, the

11-20    utilization review agent shall send a one-page appeal form to the

11-21    appealing party;

11-22                (3)  a provision that appeal decisions shall be made by

11-23    a physician, provided that, if the appeal is denied and within 10

11-24    working days the health care provider sets forth in writing good

11-25    cause for having a particular type of a specialty provider review

 12-1    the case, the denial shall be reviewed by a health care provider in

 12-2    the same or similar specialty as typically manages the medical,

 12-3    dental, or specialty condition, procedure, or treatment under

 12-4    discussion for review of the adverse determination, and such

 12-5    specialty review shall be completed within 15 working days of

 12-6    receipt of the request;

 12-7                (4)  in addition to the written appeal, a method for an

 12-8    expedited appeal procedure for emergency care denials, denials of

 12-9    care for life-threatening conditions, and denials of continued

12-10    stays for hospitalized patients.  Such procedure[, which] shall

12-11    include a review by a health care provider who has not previously

12-12    reviewed the case who is of the same or a similar specialty as

12-13    typically manages the medical condition, procedure, or treatment

12-14    under review.  The time frame in which[;] such appeal must be

12-15    completed shall be based on the medical or dental immediacy of the

12-16    condition, procedure, or treatment, but may in no event exceed one

12-17    working day from the date [no later than one working day following

12-18    the day on which the appeal], [including] all information necessary

12-19    to complete the appeal[,] is received [made to the utilization

12-20    review agent]; [and]

12-21                (5)  a provision that after the utilization review

12-22    agent has sought review of the appeal of the adverse determination,

12-23    the utilization review agent shall issue a response letter to the

12-24    patient, a person acting on behalf of the patient, or the patient's

12-25    physician or health care provider explaining the resolution of the

 13-1    appeal.  Such letter shall include a statement of the specific

 13-2    medical, dental, or contractual reasons for the resolution, the

 13-3    clinical basis for such decision, and the specialization of any

 13-4    physician or other provider consulted; and

 13-5                (6)  written notification to the appealing party of the

 13-6    determination of the appeal, as soon as practical, but in no case

 13-7    later than 30 days after the date the utilization review agent

 13-8    receives the appeal [receiving all the required documentation of

 13-9    the appeal.  If the appeal is denied, the written notification

13-10    shall include the clinical basis for the appeal's denial and the

13-11    specialty of the physician making the denial].

13-12          SECTION 6.  Section 7, Article 21.58A, Insurance Code, is

13-13    amended by adding Subsection (c) to read as follows:

13-14          (c)  A utilization review agent must provide a written

13-15    description to the commissioner setting forth the procedures to be

13-16    used when responding to poststabilization care subsequent to

13-17    emergency treatment as requested by a treating physician or health

13-18    care provider.

13-19          SECTION 7.  Section 8, Article 21.58A, Insurance Code, is

13-20    amended to read as follows:

13-21          Sec. 8.  CONFIDENTIALITY.  (a)  A utilization review agent

13-22    shall preserve the confidentiality of individual medical records to

13-23    the extent required by law.

13-24          (b)  A utilization review agent may not disclose or publish

13-25    individual medical records, personal information, or other

 14-1    confidential information about a patient obtained in the

 14-2    performance of utilization review without the prior written consent

 14-3    of the patient or as otherwise required by law.  If such

 14-4    authorization is submitted by anyone other than the individual who

 14-5    is the subject of the personal or confidential information

 14-6    requested, such authorization must:

 14-7                (1)  be dated; and

 14-8                (2)  contain the signature of the individual who is the

 14-9    subject of the personal or confidential information requested.  The

14-10    signature must have been obtained one year or less prior to the

14-11    date the disclosure is sought or the authorization is invalid.

14-12          (c)  A utilization review agent may provide confidential

14-13    information to a third party under contract or affiliated with the

14-14    utilization review agent for the sole purpose of performing or

14-15    assisting with utilization review.  Information provided to third

14-16    parties shall remain confidential.

14-17          (d)  If an individual submits a written request to the

14-18    utilization review agent for access to recorded personal

14-19    information about the individual, the utilization review agent

14-20    shall within 10 business days from the date such request is

14-21    received:

14-22                (1)  inform the individual submitting the request of

14-23    the nature and substance of the recorded personal information in

14-24    writing; and

14-25                (2)  permit the individual to see and copy, in person,

 15-1    the recorded personal information pertaining to the individual or

 15-2    to obtain a copy of the recorded personal information by mail, at

 15-3    the discretion of the individual, unless the recorded personal

 15-4    information is in coded form, in which case an accurate translation

 15-5    in plain language shall be provided in writing.

 15-6          (e)  A utilization review agent's charges for providing a

 15-7    copy of recorded personal information to individuals shall be

 15-8    reasonable, as determined by rule of the commissioner, and may not

 15-9    include any costs that are otherwise recouped as part of the charge

15-10    for utilization review.

15-11          (f) [(c)]  The utilization review agent may not publish data

15-12    which identifies a particular physician or health care provider,

15-13    including any quality review studies or performance tracking data,

15-14    without prior written notice to the involved provider.  This

15-15    prohibition does not apply to internal systems or reports used by

15-16    the utilization review agent.

15-17          (g) [(d)]  Documents in the custody of the utilization review

15-18    agent that contain confidential patient information or physician or

15-19    health care provider financial data shall be destroyed by a method

15-20    which induces complete destruction of the information when the

15-21    agent determines the information is no longer needed.

15-22          (h) [(e)]  All patient, physician, and health care provider

15-23    data shall be maintained by the utilization review agent in a

15-24    confidential manner which prevents unauthorized disclosure to third

15-25    parties.  Nothing in this article shall be construed to allow a

 16-1    utilization review agent to take actions that violate a state or

 16-2    federal statute or regulation concerning confidentiality of patient

 16-3    records.

 16-4          (i)  Notwithstanding the provisions in Subsections (a)

 16-5    through (h) of this section, the utilization review agent shall

 16-6    provide to the commissioner on request individual medical records

 16-7    or other confidential information for determination of compliance

 16-8    with this article.  Such information shall be confidential and not

 16-9    subject to the open records law.

16-10          SECTION 8.  Subsections (a), (b), and (d), Section 9, Article

16-11    21.58A, Insurance Code, is amended to read as follows:

16-12          (a)  If the commissioner believes that any person or entity

16-13    conducting utilization review pursuant to this article is in

16-14    violation of [a utilization review agent has violated or is

16-15    violating] this article or applicable regulations, the commissioner

16-16    shall notify the utilization review agent, health maintenance

16-17    organization, or insurer of the alleged violation and may compel

16-18    the production of any and all documents or other information as

16-19    necessary in order to determine whether or not such violation has

16-20    taken place [provided by this code].

16-21          (b)  The commissioner may initiate the proceedings under this

16-22    section [after the 30th day after the date the commissioner

16-23    notifies the agent as required by Subsection (a) of this section].

16-24          (d)  If [after notice and hearing] the commissioner

16-25    determines that the utilization review agent, health maintenance

 17-1    organization, or insurer conducting utilization review pursuant to

 17-2    this article has violated or is violating any provision of this

 17-3    article, the commissioner may:

 17-4                (1)  impose sanctions under Section 7, Article 1.10 of

 17-5    this code; [or]

 17-6                (2)  issue a cease and desist order under Article 1.10A

 17-7    of this code; or

 17-8                (3)  assess administrative penalties under Article

 17-9    1.10E of this code.

17-10          SECTION 9.  Section 13, Article 21.58A, Insurance Code, is

17-11    amended to read as follows:

17-12          Sec. 13.  AUTHORITY TO ADOPT RULES.  The commissioner may

17-13    [board shall] have the authority to adopt rules and regulations to

17-14    implement the provisions of this article.  The commissioner [board]

17-15    shall appoint an [11-member] advisory committee to advise the

17-16    commissioner [board] in developing rules and regulations to

17-17    administer this article as authorized by Section 2001.031,

17-18    Government Code.  The committee's deliberations shall be subject to

17-19    the open meetings law.  The committee shall include the public

17-20    counsel and one representative for each of the following:

17-21    insurance companies, health maintenance organizations, group

17-22    hospital service corporations, utilization review agents,

17-23    employers, physicians, dentists, hospitals, registered nurses, and

17-24    other health care providers.

17-25          SECTION 10.  Section 14, Article 21.58A, Insurance Code, is

 18-1    amended by amending Subsections (e), (g), and (h) and adding

 18-2    Subsection (j) to read as follows:

 18-3          (e)  This article shall not apply to the terms or benefits of

 18-4    employee welfare benefit plans as defined in Section  3(1) [31(I)]

 18-5    of the Employee Retirement Income Security Act of 1974 (29 U.S.C.

 18-6    Section 1002(1) [1002]).

 18-7          (g)  A health maintenance organization is not subject to this

 18-8    article except as expressly provided in this subsection and

 18-9    Subsection (i) of this section.  If such health maintenance

18-10    organization performs utilization review as defined herein, it

18-11    shall, as a condition of licensure:

18-12                (1)  comply with Sections 1, 2, 4, 5, 6, 7, 8, 9, 11,

18-13    12, 13, and 14 [4(b), (c), (e), (f), (h), (i), and (l)] of this

18-14    article, and the commissioner [board] shall promulgate rules for

18-15    appropriate verification and enforcement of compliance.  However,

18-16    nothing in this article shall be construed to prohibit or limit the

18-17    distribution of a proportion of the savings from the reduction or

18-18    elimination of unnecessary medical services, treatment, supplies,

18-19    confinements, or days of confinement in a health care facility

18-20    through profit sharing, bonus, or withhold arrangements to

18-21    participating physicians or participating health care providers for

18-22    rendering health care services to enrollees; and

18-23                (2)  [establish and maintain a system for:]

18-24                      [(A)  handling and responding to complaints by

18-25    enrollees, patients, or health care providers;]

 19-1                      [(B)  providing health care providers with notice

 19-2    of medical necessity or program requirements that have not been

 19-3    met, including a reasonable opportunity to discuss the plan of

 19-4    treatment and clinical basis for a utilization review determination

 19-5    with a physician; and]

 19-6                      [(C)  providing the enrollee, patient, and health

 19-7    care provider an opportunity to appeal the determination; and]

 19-8                [(3)]  submit to assessment of maintenance taxes under

 19-9    Article 20A.33, Texas Health Maintenance Organization Act (Article

19-10    20A.33, Vernon's Texas Insurance Code), to cover the costs of

19-11    administering compliance of health maintenance organizations under

19-12    this section.

19-13          (h)  An insurer which delivers or issues for delivery a

19-14    health insurance policy in Texas and is subject to this code is not

19-15    subject to this article except as expressly provided in this

19-16    subsection and Subsection (i) of this section.  If an insurer

19-17    performs utilization review as defined herein it shall, as a

19-18    condition of licensure, comply with Sections 1, 2, 4, 5, 6, 7, 8,

19-19    9, 11, 12, 13, and 14 [4 through 8] of this article, and the

19-20    commissioner [board] shall promulgate rules for appropriate

19-21    verification and enforcement of compliance.  Such insurers shall be

19-22    subject to assessment of maintenance tax under Article 4.17 of this

19-23    code to cover the costs of administering compliance of insurers

19-24    under this section.

19-25          (j)  A specialty utilization review agent is not subject to

 20-1    Section 4(b), (c), (h), or (k) or Section 6(b)(3) of this article.

 20-2    For purposes of this subsection, a specialty utilization review

 20-3    agent means a utilization review agent that conducts utilization

 20-4    review for specialty health care services, including but not

 20-5    limited to dentistry, chiropractic, or physical therapy.  A

 20-6    specialty utilization review agent shall comply with the following

 20-7    requirements:

 20-8                (1)  the utilization review plan, including

 20-9    reconsideration and appeal requirements, shall be reviewed by a

20-10    health care provider of the appropriate specialty and conducted in

20-11    accordance with standards developed with input from a health care

20-12    provider of the appropriate specialty;

20-13                (2)  personnel employed by or under contract with a

20-14    specialty utilization review agent to perform utilization review

20-15    shall be appropriately trained and qualified.  Personnel who obtain

20-16    information directly from the physician or health care provider,

20-17    either orally or in writing, shall be nurses, physician assistants,

20-18    or other health care providers of the same specialty as the

20-19    utilization review agent and who are licensed or otherwise

20-20    authorized to provide the specialty health care service by a state

20-21    licensing agency in the United States;

20-22                (3)  utilization review conducted by a specialty

20-23    utilization review agent shall be conducted under the direction of

20-24    a health care provider of the same specialty and shall be licensed

20-25    or otherwise authorized to provide the specialty health care

 21-1    service by a state licensing agency in the United States;

 21-2                (4)  subject to the notice requirements of Section 5 of

 21-3    this article, in any instance where the specialty utilization

 21-4    review agent questions the medical necessity or appropriateness of

 21-5    health care services, the health care provider who ordered the

 21-6    services shall, prior to the issuance of an adverse determination,

 21-7    be afforded a reasonable opportunity to discuss the plan of

 21-8    treatment for the patient and the clinical basis for the decision

 21-9    of the utilization review agent with a health care provider of the

21-10    same specialty as the utilization review agent; and

21-11                (5)  appeal decisions shall be made by a physician or

21-12    health care provider in the same or a similar specialty as

21-13    typically manages the medical, dental, or specialty condition,

21-14    procedure, or treatment under discussion for review of the adverse

21-15    determination.

21-16          SECTION 11.  This Act takes effect September 1, 1997.

21-17          SECTION 12.  The importance of this legislation and the

21-18    crowded condition of the calendars in both houses create an

21-19    emergency and an imperative public necessity that the

21-20    constitutional rule requiring bills to be read on three several

21-21    days in each house be suspended, and this rule is hereby suspended.