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 knoledge 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 a disease or condition

3-14     for which the likelihood of death is probable unless the course of

3-15     the 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, physician assistants, or

 7-4     health care providers qualified to provide the service requested by

 7-5     the provider [registered records administrators, or accredited

 7-6     records technicians, who are either licensed or certified, or shall

 7-7     be individuals who have received formal orientation and training in

 7-8     accordance with policies and procedures established by the

 7-9     utilization review agent to assure compliance with this section,

7-10     and a description of such policies and procedures shall be filed

7-11     with the commissioner].  This provision shall not be interpreted to

7-12     require such qualifications for personnel who perform clerical or

7-13     administrative tasks.

7-14           (h)  Utilization review conducted by a utilization review

7-15     agent shall be under the direction of a physician licensed to

7-16     practice medicine by a state licensing agency in the United States.

7-17           (i)  Each utilization review agent shall utilize written

7-18     medically acceptable screening criteria and review procedures which

7-19     are established and periodically evaluated and updated with

7-20     appropriate involvement from physicians, including practicing

7-21     physicians, dentists, and other health care providers.  Utilization

7-22     review decisions shall be made in accordance with currently

7-23     accepted medical or health care practices, taking into account

7-24     special circumstances of each case that may require deviation from

7-25     the norm stated in the screening criteria.  Screening criteria must

 8-1     be objective, clinically valid, compatible with established

 8-2     principles of health care, and flexible enough to allow deviations

 8-3     from the norms when justified on a case-by-case basis.  Screening

 8-4     criteria must be used to determine only whether to approve the

 8-5     requested treatment.  Denials must be referred to an appropriate

 8-6     physician, dentist, or other health care provider to determine

 8-7     medical necessity.  Such written screening criteria and review

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

 8-9     determine appropriateness and compliance as deemed necessary by the

8-10     commissioner and copying as necessary for the commissioner to carry

8-11     out his or her lawful duties under this code, provided, however,

8-12     that any information obtained or acquired under the authority of

8-13     this subsection and article is confidential and privileged and not

8-14     subject to the open records law or subpoena except to the extent

8-15     necessary for the [board or] commissioner to enforce this article.

8-16           (k)  Subject to the notice requirements of Section 5 of this

8-17     article, in any instance where the utilization review agent is

8-18     questioning the medical necessity or appropriateness of health care

8-19     services, the health care provider who ordered the services shall

8-20     be afforded a reasonable opportunity to discuss the plan of

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

8-22     utilization review agent's decision with a physician [or, in the

8-23     case of a dental plan with a dentist,] prior to issuance of an

8-24     adverse determination.

8-25           (m)  A utilization review agent shall establish and maintain

 9-1     a complaint system that provides reasonable procedures for the

 9-2     resolution of oral or written complaints initiated by enrollees,

 9-3     patients, or health care providers concerning the utilization

 9-4     review and shall maintain records of such [written] complaints for

 9-5     three [two] years from the time the complaints are filed.  The

 9-6     complaint procedure shall include a written response to the

 9-7     complainant by the agent within 30 [60] days.  The utilization

 9-8     review agent shall submit to the commissioner a summary report of

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

9-10     [board] may require and shall permit the commissioner to examine

9-11     the complaints and all relevant documents at any time.

9-12           (n)  The utilization review agent may delegate utilization

9-13     review to qualified personnel in the hospital or health care

9-14     facility where the health care services were or are to be provided.

9-15     However, such delegation shall not relieve the utilization review

9-16     agent of full responsibility for compliance with this article,

9-17     including the conduct of those to whom utilization review has been

9-18     delegated.

9-19           SECTION 4.  Subsections (c) and (d), Section 5, Article

9-20     21.58A, Insurance Code, are amended to read as follows:

9-21           (c)  In the event of an adverse determination, the

9-22     notification by the utilization review agent must include:

9-23                 (1)  the principal reasons for the adverse

9-24     determination;

9-25                 (2)  the clinical basis for the adverse determination;

 10-1                (3)  a description or the source of the screening

 10-2    criteria that were utilized as guidelines in making the

 10-3    determination; and

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

 10-5    complaint and appeal process.

 10-6          (d)  The notification of adverse determination required by

 10-7    this section shall be provided by the utilization review agent:

 10-8                (1)  within one working day by telephone or electronic

 10-9    transmission to the provider of record in the case of a patient who

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

10-11    followed by a letter notifying the patient and the provider of

10-12    record of an adverse determination within three working days; [or]

10-13                (2)  within three working days in writing to the

10-14    provider of record and the patient if the patient is not

10-15    hospitalized at the time of the adverse determination; or

10-16                (3)  within the time appropriate to the circumstances

10-17    relating to the delivery of the services and the condition of the

10-18    patient, but in no case to exceed one hour from notification when

10-19    denying poststabilization care subsequent to emergency treatment as

10-20    requested by a treating physician or provider.  In such

10-21    circumstances, notification shall be provided to the treating

10-22    physician or health care provider.

10-23          SECTION 5.  Section 6, Article 212.58A, Insurance Code, is

10-24    amended to read as follows:

10-25          Sec. 6.  APPEAL OF ADVERSE DETERMINATIONS OF UTILIZATION

 11-1    REVIEW AGENTS.  (a)  A utilization review agent shall maintain and

 11-2    make available a written description of [an] appeal procedures

 11-3    involving [procedure of] an adverse determination.

 11-4          (b)  The procedures for appeals shall be reasonable and shall

 11-5    include the following:

 11-6                (1)  a provision that an enrollee, a person acting on

 11-7    behalf of the enrollee, or the enrollee's physician or health care

 11-8    provider may appeal the adverse determination orally or in writing

 11-9    [and shall be provided, on request, a clear and concise statement

11-10    of the clinical basis for the adverse determination];

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

11-12    receipt of the appeal, the utilization review agent shall send to

11-13    the appealing party a letter acknowledging the date of the

11-14    utilization review agent's receipt of the appeal and include a

11-15    reasonable list of documents needed to be submitted by the

11-16    appealing party to the utilization review agent for the appeal.

11-17    Such letter must also include provisions listed in this subsection.

11-18    When the utilization review agent receives an oral appeal of

11-19    adverse determination, the utilization review agent shall send a

11-20    one-page appeal form to the appealing party;

11-21                (3)  a provision that appeal decisions shall be made by

11-22    a physician, provided that, if the appeal is denied and within 10

11-23    working days the health care provider sets forth in writing good

11-24    cause for having a particular type of a specialty provider review

11-25    the case, the denial shall be reviewed by a health care provider in

 12-1    the same or similar specialty as typically manages the medical,

 12-2    dental, or specialty condition, procedure, or treatment under

 12-3    discussion for review of the adverse determination, and such

 12-4    specialty review shall be completed within 15 working days of

 12-5    receipt of the request;

 12-6                (4)  in addition to the written appeal, a method for an

 12-7    expedited appeal procedure for emergency care denials, denials of

 12-8    care for life-threatening conditions, and denials of continued

 12-9    stays for hospitalized patients.  Such procedure[, which] shall

12-10    include a review by a health care provider who has not previously

12-11    reviewed the case who is of the same or a similar specialty as

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

12-13    under review.  The time frame in which[;] such appeal must be

12-14    completed shall be based on the medical or dental immediacy of the

12-15    condition, procedure, or treatment, but may in no event exceed one

12-16    working day from the date [no later than one working day following

12-17    the day on which the appeal, including] all information necessary

12-18    to complete the appeal[,] is received [made to the utilization

12-19    review agent]; [and]

12-20                (5)  a provision that after the utilization review

12-21    agent has sought review of the appeal of the adverse determination,

12-22    the utilization review agent shall issue a response letter to the

12-23    patient, a person acting on behalf of the patient, or the patient's

12-24    physician or health care provider explaining the resolution of the

12-25    appeal.  Such letter shall include a statement of the specific

 13-1    medical, dental, or contractual reasons for the resolution, the

 13-2    clinical basis for such decision, and the specialization of any

 13-3    physician or other provider consulted; and

 13-4                (6)  written notification to the appealing party of the

 13-5    determination of the appeal, as soon as practical, but in no case

 13-6    later than 30 days after the date the utilization review agent

 13-7    receives the appeal [receiving all the required documentation of

 13-8    the appeal.  If the appeal is denied, the written notification

 13-9    shall include the clinical basis for the appeal's denial and the

13-10    specialty of the physician making the denial].

13-11          SECTION 6.  Section 7, Article 21.58A, Insurance Code, is

13-12    amended by adding Subsection (c) to read as follows:

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

13-14    description to the commissioner setting forth the procedures to be

13-15    used when responding to poststabilization care subsequent to

13-16    emergency treatment as requested by a treating physician or health

13-17    care provider.

13-18          SECTION 7.  Section 8, Article 21.58A, Insurance Code, is

13-19    amended to read as follows:

13-20          Sec. 8.  CONFIDENTIALITY.  (a)  A utilization review agent

13-21    shall preserve the confidentiality of individual medical records to

13-22    the extent required by law.

13-23          (b)  A utilization review agent may not disclose or publish

13-24    individual medical records, personal information, or other

13-25    confidential information about a patient obtained in the

 14-1    performance of utilization review without the prior written consent

 14-2    of the patient or as otherwise required by law.  If such

 14-3    authorization is submitted by anyone other than the individual who

 14-4    is the subject of  the personal or confidential information

 14-5    requested, such authorization must:

 14-6                (1)  be dated; and

 14-7                (2)  contain the signature of the individual who is the

 14-8    subject of the personal or confidential information requested.  The

 14-9    signature must have been obtained one year or less prior to the

14-10    date the disclosure is sought or the authorization is invalid.

14-11          (c)  A utilization review agent may provide confidential

14-12    information to a third party under contract or affiliated with the

14-13    utilization review agent for the sole purpose of performing or

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

14-15    parties shall remain confidential.

14-16          (d)  If an individual submits a written request to the

14-17    utilization review agent for access to recorded personal

14-18    information about the individual, the utilization review agent

14-19    shall within 10 business days from the date such request is

14-20    received:

14-21                (1)  inform the individual submitting the request of

14-22    the nature and substance of the recorded personal information in

14-23    writing; and

14-24                (2)  permit the individual to see and copy, in person,

14-25    the recorded personal information pertaining to the individual or

 15-1    to obtain a copy of the recorded personal information by mail, at

 15-2    the discretion of the individual, unless the recorded personal

 15-3    information is in coded form, in which case an accurate translation

 15-4    in plain language shall be provided in writing.

 15-5          (e)  A utilization review agent's charges for providing a

 15-6    copy of recorded personal information to individuals shall be

 15-7    reasonable, as determined by rule of the commissioner, and may not

 15-8    include any costs that are otherwise recouped as part of the charge

 15-9    for utilization review.

15-10          (f) [(c)]  The utilization review agent may not publish data

15-11    which identifies a particular physician or health care provider,

15-12    including any quality review studies or performance tracking data,

15-13    without prior written notice to the involved provider.  This

15-14    prohibition does not apply to internal systems or reports used by

15-15    the utilization review agent.

15-16          (g) [(d)]  Documents in the custody of the utilization review

15-17    agent that contain confidential patient information or physician or

15-18    health care provider financial data shall be destroyed by a method

15-19    which induces complete destruction of the information when the

15-20    agent determines the information is no longer needed.

15-21          (h) [(e)]  All patient, physician, and health care provider

15-22    data shall be maintained by the utilization review agent in a

15-23    confidential manner which prevents unauthorized disclosure to third

15-24    parties.  Nothing in this article shall be construed to allow a

15-25    utilization review agent to take actions that violate a state or

 16-1    federal statute or regulation concerning confidentiality of patient

 16-2    records.

 16-3          (i)  Notwithstanding the provisions in Subsections (a)

 16-4    through (h) of this section, the utilization review agent shall

 16-5    provide to the commissioner on request individual medical records

 16-6    or other confidential information for determination of compliance

 16-7    with this article.  The information is confidential and privileged

 16-8    and is not subject to the open records law, Chapter 552, Government

 16-9    Code, or to subpoena, except to the extent necessary to enable the

16-10    commissioner to enforce this article.

16-11          SECTION 8.  Subsections (a), (b), and (d), Section 9, Article

16-12    21.58A, Insurance Code, is amended to read as follows:

16-13          (a)  If the commissioner believes that any person or entity

16-14    conducting utilization review pursuant to this article is in

16-15    violation of [a utilization review agent has violated or is

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

16-17    shall notify the utilization review agent, health maintenance

16-18    organization, or insurer of the alleged violation and may compel

16-19    the production of any and all documents or other information as

16-20    necessary in order to determine whether or not such violation has

16-21    taken place [provided by this code].

16-22          (b)  The commissioner may initiate the proceedings under this

16-23    section [after the 30th day after the date the commissioner

16-24    notifies the agent as required by Subsection (a) of this section].

16-25          (d)  If [after notice and hearing] the commissioner

 17-1    determines that the utilization review agent, health maintenance

 17-2    organization, insurer, or other person or entity conducting

 17-3    utilization review pursuant to this article has violated or is

 17-4    violating any provision of this article, the commissioner may:

 17-5                (1)  impose sanctions under Section 7, Article 1.10 of

 17-6    this code; [or]

 17-7                (2)  issue a cease and desist order under Article 1.10A

 17-8    of this code; or

 17-9                (3)  assess administrative penalties under Article

17-10    1.10E of this code.

17-11          SECTION 9.  Section 13, Article 21.58A, Insurance Code, is

17-12    amended to read as follows:

17-13          Sec. 13.  Authority to adopt rules.  The commissioner may

17-14    [board shall] have the authority to adopt rules and regulations to

17-15    implement the provisions of this article.  The commissioner [board]

17-16    shall appoint an [11-member] advisory committee to advise the

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

17-18    administer this article as authorized by Section 2001.031,

17-19    Government Code.  The committee's deliberations shall be subject to

17-20    the open meetings law.  The committee shall include the public

17-21    counsel and one representative for each of the following:

17-22    insurance companies, health maintenance organizations, group

17-23    hospital service corporations, utilization review agents,

17-24    employers, consumer organizations, physicians, dentists, hospitals,

17-25    registered nurses, and other health care providers.

 18-1          SECTION 10.  Section 14, Article 21.58A, Insurance Code, is

 18-2    amended by amending Subsections (b), (e), (g), and (h) and adding

 18-3    Subsection (j) to read as follows:

 18-4          (b)(1)  This article shall not apply to any contract with the

 18-5    federal government for utilization review of patients eligible for

 18-6    services under Title XVIII or XIX of the Social Security Act (42

 18-7    U.S.C. Section 1395 et seq. or Section 1396 et seq.).

 18-8                (2)  Except as provided by Subsection (g) of this

 18-9    section, this [This] article shall not apply to the Texas Medicaid

18-10    Program, the chronically ill and disabled children's services

18-11    program created pursuant to Chapter 35, Health and Safety Code, any

18-12    program administered under Title 2, Human Resources Code, any

18-13    program of the Texas Department of Mental Health and Mental

18-14    Retardation, or any program of the Texas Department of Criminal

18-15    Justice.

18-16          (e)  This article shall not apply to the terms or benefits of

18-17    employee welfare benefit plans as defined in Section 3(1) [31(I)]

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

18-19    Section 1002(1) [1002]).

18-20          (g)  A health maintenance organization, including a health

18-21    maintenance organization that contracts with the Health and Human

18-22    Services Commission or an agency operating part of the state

18-23    Medicaid managed care program to provide health care services to

18-24    recipients of medical assistance under Chapter 32, Human Resources

18-25    Code, is [not] subject to this article except as expressly provided

 19-1    in this subsection and Subsection (i) of this section.  If such

 19-2    health maintenance organization performs utilization review as

 19-3    defined herein, it shall, as a condition of licensure:

 19-4                (1)  comply with [Sections 4(b), (c), (e), (f), (h),

 19-5    (i), and (l) of] this article, except Sections 3 and 10, and the

 19-6    commissioner [board] shall promulgate rules for appropriate

 19-7    verification and enforcement of compliance.  However, nothing in

 19-8    this article shall be construed to prohibit or limit the

 19-9    distribution of a proportion of the savings from the reduction or

19-10    elimination of unnecessary medical services, treatment, supplies,

19-11    confinements, or days of confinement in a health care facility

19-12    through profit sharing, bonus, or withhold arrangements to

19-13    participating physicians or participating health care providers for

19-14    rendering health care services to enrollees; and

19-15                (2)  [establish and maintain a system for:]

19-16                      [(A)  handling and responding to complaints by

19-17    enrollees, patients, or health care providers;]

19-18                      [(B)  providing health care providers with notice

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

19-20    met, including a reasonable opportunity to discuss the plan of

19-21    treatment and clinical basis for a utilization review determination

19-22    with a physician; and]

19-23                      [(C)  providing the enrollee, patient, and health

19-24    care provider an opportunity to appeal the determination; and]

19-25                [(3)]  submit to assessment of maintenance taxes under

 20-1    Article 20A.33, Texas Health Maintenance Organization Act (Article

 20-2    20A.33, Vernon's Texas Insurance Code), to cover the costs of

 20-3    administering compliance of health maintenance organizations under

 20-4    this section.

 20-5          (h)  An insurer which delivers or issues for delivery a

 20-6    health insurance policy in Texas and is subject to this code is

 20-7    [not] subject to this article except as expressly provided in this

 20-8    subsection and Subsection (i) of this section.  If an insurer

 20-9    performs utilization review as defined herein it shall, as a

20-10    condition of licensure, comply with [Sections 4 through 8 of] this

20-11    article, except Sections 3 and 10, and the commissioner [board]

20-12    shall promulgate rules for appropriate verification and enforcement

20-13    of compliance.  Such insurers shall be subject to assessment of

20-14    maintenance tax under Article 4.17 of this code to cover the costs

20-15    of administering compliance of insurers under this section.

20-16          (j)  A specialty utilization review agent is not subject to

20-17    Section 4(b), (c), (h), or (k) or Section 6(b)(3) of this article.

20-18    For purposes of this subsection, a specialty utilization review

20-19    agent means a utilization review agent that conducts utilization

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

20-21    limited to dentistry, chiropractic, or physical therapy.  A

20-22    specialty utilization review agent shall comply with the following

20-23    requirements:

20-24                (1)  the utilization review plan, including

20-25    reconsideration and appeal requirements, shall be reviewed by a

 21-1    health care provider of the appropriate specialty and conducted in

 21-2    accordance with standards developed with input from a health care

 21-3    provider of the appropriate specialty;

 21-4                (2)  personnel employed by or under contract with a

 21-5    specialty utilization review agent to perform utilization review

 21-6    shall be appropriately trained and qualified.  Personnel who obtain

 21-7    information directly from the physician or health care provider,

 21-8    either orally or in writing, shall be nurses, physician assistants,

 21-9    or other health care providers of the same specialty as the

21-10    utilization review agent and who are licensed or otherwise

21-11    authorized to provide the specialty health care service by a state

21-12    licensing agency in the United States, except that this provision

21-13    does not require those qualifications for personnel who perform

21-14    solely clerical or administrative tasks;

21-15                (3)  utilization review conducted by a specialty

21-16    utilization review agent shall be conducted under the direction of

21-17    a health care provider of the same specialty and shall be licensed

21-18    or otherwise authorized to provide the specialty health care

21-19    service by a state licensing agency in the United States;

21-20                (4)  subject to the notice requirements of Section 5 of

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

21-22    review agent questions the medical necessity or appropriateness of

21-23    health care services, the health care provider who ordered the

21-24    services shall, prior to the issuance of an adverse determination,

21-25    be afforded a reasonable opportunity to discuss the plan of

 22-1    treatment for the patient and the clinical basis for the decision

 22-2    of the utilization review agent with a health care provider of the

 22-3    same specialty as the utilization review agent; and

 22-4                (5)  appeal decisions shall be made by a physician or

 22-5    health care provider in the same or a similar specialty as

 22-6    typically manages the medical, dental, or specialty condition,

 22-7    procedure, or treatment under discussion for review of the adverse

 22-8    determination.

 22-9          SECTION 11.  This Act takes effect September 1, 1997.

22-10          SECTION 12.  The importance of this legislation and the

22-11    crowded condition of the calendars in both houses create an

22-12    emergency and an imperative public necessity that the

22-13    constitutional rule requiring bills to be read on three several

22-14    days in each house be suspended, and this rule is hereby suspended.

                                                                S.B. No. 384

         ________________________________   ________________________________

            President of the Senate              Speaker of the House

               I hereby certify that S.B. No. 384 passed the Senate on

         March 6, 1997, by a viva-voce vote; May 28, 1997, Senate refused to

         concur in House amendments and requested appointment of Conference

         Committee; May 29, 1997, House granted request of the Senate;

         June 1, 1997, Senate adopted Conference Committee Report by a

         viva-voce vote.

                                            _______________________________

                                                Secretary of the Senate

               I hereby certify that S.B. No. 384 passed the House, with

         amendments, on May 25, 1997, by a non-record vote; May 29, 1997,

         House granted request of the Senate for appointment of Conference

         Committee; June 1, 1997, House adopted Conference Committee Report

         by a non-record vote.

                                            _______________________________

                                                Chief Clerk of the House

         Approved:

         ________________________________

                     Date

         ________________________________

                   Governor