75R11075 SAW-F                          

         By Nelson                                              S.B. No. 384

         Substitute the following for S.B. No. 384:

         By Smithee                                         C.S.S.B. No. 384

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to utilization review under health benefit plans and

 1-3     health insurance policies.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 2, Article 21.58A, Insurance Code, is

 1-6     amended to read as follows:

 1-7           Sec. 2.  DEFINITIONS.  In this article:

 1-8                 (1)  "Administrative procedure act" means Chapter 2001,

 1-9     Government Code [the Administrative Procedure and Texas Register

1-10     Act (Article 6252-13a, Vernon's Texas Civil Statutes)].

1-11                 (2)  "Administrator" means a person holding a

1-12     certificate of authority under Article 21.07-6 of this code.

1-13                 (3)  "Adverse determination" means a determination by a

1-14     utilization review agent that the health care services furnished or

1-15     proposed to be furnished to a patient are not medically necessary

1-16     or not appropriate in the allocation of health care resources.

1-17                 (4)  ["Board" means the State Board of Insurance.]

1-18                 [(5)]  "Certificate" means a certificate of

1-19     registration granted by the commissioner [board] to a utilization

1-20     review agent.

1-21                 (5) [(6)]  "Commissioner" means the commissioner of

1-22     insurance.

1-23                 (6) [(7)]  "Emergency care" means health care services

1-24     provided in a hospital emergency facility or comparable facility to

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

 2-2     severity, including severe pain, that would lead a prudent

 2-3     layperson possessing an average knowledge of medicine and health to

 2-4     believe that his or her condition, sickness, or injury is of such a

 2-5     nature that failure to get immediate medical care could result in:

 2-6                       (A)  placing the person's health in serious

 2-7     jeopardy;

 2-8                       (B)  serious impairment to bodily functions;

 2-9                       (C)  serious dysfunction of any bodily organ or

2-10     part;

2-11                       (D)  serious disfigurement; or

2-12                       (E)  in the case of a pregnant woman, serious

2-13     jeopardy to the health of the fetus [bona fide emergency services

2-14     as defined in Section 2(I), Chapter 397, Acts of the 54th

2-15     Legislature, 1955 (Article 3.70-2, Vernon's Texas Insurance Code)

2-16     and Section 2(t), Texas Health Maintenance Organization Act

2-17     (Article 20A.02, Vernon's Texas Insurance Code)].

2-18                 (7) [(8)]  "Dental plan" means an insurance policy or

2-19     health benefit plan, including a policy written by a company

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

2-21     expenses for dental services.

2-22                 (8) [(9)]  "Enrollee" means a person covered by a

2-23     health insurance policy or plan and includes a person who is

2-24     covered as an eligible dependent of another person.

2-25                 (9) [(10)]  "Health benefit plan" means a plan of

2-26     benefits that defines the coverage provisions for health care for

2-27     enrollees offered or provided by any organization, public or

 3-1     private, other than health insurance.  The term does not include a

 3-2     plan that provides coverage only for a specified accident or

 3-3     disease or a hospital indemnity, Medicare supplement, long-term

 3-4     care, or other limited health insurance policy.

 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 condition" means a condition

3-14     from which 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

3-26     insurance plan.

3-27                 (17)  "Payor" means:

 4-1                       (A)  an insurer writing health insurance

 4-2     policies;

 4-3                       (B)  any preferred provider organization, health

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

 4-5                       (C)  any other person or entity which provides,

 4-6     offers to provide, or administers hospital, outpatient, medical, or

 4-7     other health benefits to persons treated by a health care provider

 4-8     in this state pursuant to any policy, plan, or contract.

 4-9                 (18)  "Physician" means a licensed doctor of medicine

4-10     or a doctor of osteopathy.

4-11                 (19)  "Provider of record" means the physician or other

4-12     health care provider that has primary responsibility for the care,

4-13     treatment, and services rendered to the enrollee and includes any

4-14     health care facility when treatment is rendered on an inpatient or

4-15     outpatient basis.

4-16                 (20)  "Utilization review" means a system for

4-17     prospective or concurrent review of the medical necessity and

4-18     appropriateness of health care services being provided or proposed

4-19     to be provided to an individual within this state.  Utilization

4-20     review shall not include elective requests for clarification of

4-21     coverage.

4-22                 (21)  "Utilization review agent" means an entity that

4-23     conducts utilization review for:

4-24                       (A)  an employer with employees in this state who

4-25     are covered under a health benefit plan or health insurance policy;

4-26                       (B)  a payor; or

4-27                       (C)  an administrator.

 5-1                 (22)  "Utilization review plan" means the screening

 5-2     criteria and utilization review procedures of a utilization review

 5-3     agent.

 5-4                 (23)  "Working day" means a weekday, excluding a legal

 5-5     holiday.

 5-6           SECTION 2.  Sections 3(b), (d), (e), and (f), Article 21.58A,

 5-7     Insurance Code, are amended to read as follows:

 5-8           (b)  The commissioner may only issue a certificate to an

 5-9     applicant that has met all the requirements of this article and all

5-10     applicable rules and regulations of the commissioner [board].

5-11           (d)  Certification may be renewed biennially by filing, not

5-12     later than March 1, a renewal form with the commissioner

5-13     accompanied by a renewal fee in an amount set by the commissioner

5-14     [board].

5-15           (e)  The commissioner shall promulgate certification and

5-16     renewal forms to be filed under this section.  The form for initial

5-17     certification must require the following:

5-18                 (1)  the entity's name, address, telephone number, and

5-19     normal business hours;

5-20                 (2)  the name and address of an agent for service of

5-21     process in this state;

5-22                 (3)  a summary of the utilization review plan, but in

5-23     no event shall proprietary details be subject to inclusion in the

5-24     summary;

5-25                 (4)  information concerning the personnel categories

5-26     that will perform utilization review for the utilization review

5-27     agent;

 6-1                 (5)  a copy of the procedure established by the

 6-2     utilization review agent as required by this article for appeal of

 6-3     an adverse determination;

 6-4                 (6)  a certification that the utilization review agent

 6-5     will comply with the provisions of this article; and

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

 6-7     written complaints by enrollees, patients, or health care

 6-8     providers.

 6-9           (f)  The commissioner [board] shall establish, administer,

6-10     and enforce the certification and renewal fees under this section

6-11     in amounts not greater than that necessary to cover the cost of

6-12     administration of this article.

6-13           SECTION 3.  Sections 4(c), (h), (i), (k), (m), and (n),

6-14     Article 21.58A, Insurance Code, are amended to read as follows:

6-15           (c)  Personnel employed by or under contract with the

6-16     utilization review agent to perform utilization review shall be

6-17     appropriately trained and qualified.  Personnel who obtain

6-18     information regarding a patient's specific medical condition,

6-19     diagnosis, and treatment options or protocols directly from the

6-20     physician or health care provider, either orally or in writing, and

6-21     who are not physicians shall be nurses or[,] physician assistants

6-22     or mental health providers qualified to provide the service

6-23     requested by the provider [, registered records administrators, or

6-24     accredited records technicians, who are either licensed or

6-25     certified, or shall be individuals who have received formal

6-26     orientation and training in accordance with policies and procedures

6-27     established by the utilization review agent to assure compliance

 7-1     with this section, and a description of such policies and

 7-2     procedures shall be filed with the commissioner].  This provision

 7-3     shall not be interpreted to require such qualifications for

 7-4     personnel who perform clerical or administrative tasks.

 7-5           (h)  Utilization review conducted by a utilization review

 7-6     agent shall be under the direction of a physician licensed to

 7-7     practice medicine in this state [by a state licensing agency in the

 7-8     United States].

 7-9           (i)  Each utilization review agent shall utilize written

7-10     medically acceptable screening criteria and review procedures which

7-11     are established and periodically evaluated and updated with

7-12     appropriate involvement from physicians, including practicing

7-13     physicians, dentists, and other health care providers.  Utilization

7-14     review decisions shall be made in accordance with currently

7-15     accepted medical, mental health, or health or mental health care

7-16     practices, taking into account special circumstances of each case

7-17     that may require deviation from the norm stated in the screening

7-18     criteria.  Screening criteria must be objective, clinically valid,

7-19     compatible with established principles of health or mental health

7-20     care, and flexible enough to allow deviations from the norms when

7-21     justified on a case-by-case basis.  Screening criteria must be used

7-22     to determine only whether to approve the requested treatment.

7-23     Denials must be referred to an appropriate physician, dentist, or

7-24     other health or mental health care provider to determine medical

7-25     necessity.  Such written screening criteria and review procedures

7-26     shall be available for review and inspection to determine

7-27     appropriateness and compliance as deemed necessary by the

 8-1     commissioner and copying as necessary for the commissioner to carry

 8-2     out his or her lawful duties under this code, provided, however,

 8-3     that any information obtained or acquired under the authority of

 8-4     this subsection and article is confidential and privileged and not

 8-5     subject to the open records law or subpoena except to the extent

 8-6     necessary for the [board or] commissioner to enforce this article.

 8-7           (k)  Subject to the notice requirements of Section 5 of this

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

 8-9     questioning the medical necessity or appropriateness of health care

8-10     services, the health care provider who ordered the services shall

8-11     be afforded a reasonable opportunity to discuss the plan of

8-12     treatment for the patient and the clinical basis for the

8-13     utilization review agent's decision with a physician [or, in the

8-14     case of a dental plan with a dentist,] prior to issuance of an

8-15     adverse determination.

8-16           (m)  A utilization review agent shall establish and maintain

8-17     a complaint system that provides reasonable procedures for the

8-18     resolution of oral or written complaints initiated by enrollees,

8-19     patients, or health care providers concerning the utilization

8-20     review and shall maintain records of the [such written] complaints

8-21     for three [two] years from the time the complaints are filed.  The

8-22     complaint procedure shall include a written response to the

8-23     complainant by the agent within 30 [60] days.  The utilization

8-24     review agent shall submit to the commissioner a summary report of

8-25     all complaints at such times and in such forms as the commissioner

8-26     [board] may require and shall permit the commissioner to examine

8-27     the complaints and all relevant documents at any time.

 9-1           (n)  The utilization review agent may delegate utilization

 9-2     review to qualified personnel in the hospital or health care

 9-3     facility where the health care services were or are to be provided.

 9-4     Delegation does not relieve the utilization review agent of full

 9-5     responsibility for compliance with this article, including

 9-6     responsibility for the conduct of those to whom utilization review

 9-7     has been delegated.

 9-8           SECTION 4.  Sections 5(c) and (d), Article 21.58A, Insurance

 9-9     Code, are amended to read as follows:

9-10           (c)  In the event of an adverse determination, the

9-11     notification by the utilization review agent must include:

9-12                 (1)  the principal reasons for the adverse

9-13     determination;

9-14                 (2)  the clinical basis for the adverse determination;

9-15                 (3)  a description or the source of the screening

9-16     criteria that were utilized as guidelines in making the

9-17     determination; and

9-18                 (4) [(3)]  a description of the procedure for complaint

9-19     and appeal.

9-20           (d)  The notification of adverse determination required by

9-21     this section shall be provided by the utilization review agent:

9-22                 (1)  within one working day by telephone or electronic

9-23     transmission to the provider of record in the case of a patient who

9-24     is hospitalized at the time of the adverse determination, to be

9-25     followed within three working days by a letter notifying the

9-26     patient and the provider of record of an adverse determination;

9-27     [or]

 10-1                (2)  within three working days in writing to the

 10-2    provider of record and the patient if the patient is not

 10-3    hospitalized at the time of the adverse determination; or

 10-4                (3)  within a time period appropriate to the

 10-5    circumstances of the service delivery and the patient's condition,

 10-6    not to exceed one hour when the adverse determination relates to

 10-7    poststabilization care after emergency treatment requested by a

 10-8    treating physician or provider, under which circumstances

 10-9    notification shall be provided to the treating physician or health

10-10    care provider.

10-11          SECTION 5.  Section 6, Article 21.58A, Insurance Code, is

10-12    amended to read as follows:

10-13          Sec. 6.  APPEAL OF ADVERSE DETERMINATIONS OF UTILIZATION

10-14    REVIEW AGENTS.  (a)  A utilization review agent shall maintain and

10-15    make available a written description of procedures for [an] appeal

10-16    [procedure] of an adverse determination.

10-17          (b)  The procedures for appeals shall be reasonable and shall

10-18    include the following:

10-19                (1)  a provision that an enrollee, a person acting on

10-20    behalf of the enrollee, or the enrollee's physician or health care

10-21    provider may appeal the adverse determination orally or in writing

10-22    [and shall be provided, on request, a clear and concise statement

10-23    of the clinical basis for the adverse determination];

10-24                (2)  a provision that, within five working days from

10-25    receipt of the appeal, the utilization review agent shall send to

10-26    the appealing party a letter acknowledging the date of the

10-27    utilization review agent's receipt of the appeal and including a

 11-1    reasonable list of documents needed to be submitted by the

 11-2    appealing party to the utilization review agent for the appeal and

 11-3    information about the appeal requirements of this subsection,

 11-4    unless the utilization review agent receives an oral appeal of

 11-5    adverse determination, in which case the utilization review agent

 11-6    shall send a one-page appeal form to the appealing party;

 11-7                (3)  a provision that appeal decisions shall be made by

 11-8    a physician, provided that, if the appeal is denied and within 10

 11-9    working days the health care provider sets forth in writing good

11-10    cause for having a particular type of a specialty provider review

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

11-12    the same or similar specialty as typically manages the medical,

11-13    dental, mental health, or specialty condition, procedure, or

11-14    treatment under discussion for review of the adverse determination,

11-15    and that the specialty review shall be completed within 15 working

11-16    days of receipt of the request;

11-17                (4)  in addition to the written appeal, [a method for]

11-18    an expedited appeal procedure for emergency care denials, denials

11-19    of care for life-threatening conditions, and denials of continued

11-20    stays for hospitalized patients that [, which] shall include a

11-21    review by a health care provider who has not previously reviewed

11-22    the case and who is of the same or a similar specialty as a health

11-23    care provider who typically manages the medical condition,

11-24    procedure, or treatment under review [; such appeal must be]

11-25    completed in a period based on the medical or dental immediacy of

11-26    the condition, procedure, or treatment not to exceed one working

11-27    day from the date [no later than one working day following the day

 12-1    on which the appeal], [including] all information necessary to

 12-2    complete the appeal[,] is received [made to the utilization review

 12-3    agent]; [and]

 12-4                (5)  a provision that after the utilization review

 12-5    agent has sought review of the appeal of the adverse determination,

 12-6    the utilization review agent shall issue a response letter to the

 12-7    patient, a person acting on behalf of the patient, or the patient's

 12-8    physician or health care provider explaining the resolution of the

 12-9    appeal and including a statement of the specific medical, dental,

12-10    or contractual reasons for the resolution, the clinical basis for

12-11    the decision, and the specialization of any physician or other

12-12    provider consulted; and

12-13                (6)  written notification to the appealing party of the

12-14    determination of the appeal, as soon as practical, but in no case

12-15    later than 30 days after the date the utilization review agent

12-16    receives the appeal [receiving all the required documentation of

12-17    the appeal.  If the appeal is denied, the written notification

12-18    shall include the clinical basis for the appeal's denial and the

12-19    specialty of the physician making the denial].

12-20          SECTION 6.  Section 7, Article 21.58A, Insurance Code, is

12-21    amended by adding Subsection (c) to read as follows:

12-22          (c)  A utilization review agent must provide to the

12-23    commissioner a written description of the procedures to be used

12-24    when responding to poststabilization care after emergency treatment

12-25    requested by a treating physician or health care provider.

12-26          SECTION 7.  Section 8, Article 21.58A, Insurance Code, is

12-27    amended to read as follows:

 13-1          Sec. 8.  CONFIDENTIALITY.  (a)  A utilization review agent

 13-2    shall preserve the confidentiality of individual medical records to

 13-3    the extent required by law.

 13-4          (b)  A utilization review agent may not disclose or publish

 13-5    individual medical records, personal information, or other

 13-6    confidential information about a patient obtained in the

 13-7    performance of utilization review without the prior written consent

 13-8    of the patient or as otherwise required by law.  If the

 13-9    authorization is submitted by a person other than the individual

13-10    who is the subject of the personal or confidential information

13-11    requested, the authorization must be:

13-12                (1)  dated; and

13-13                (2)  signed by the individual who is the subject of the

13-14    personal or confidential information requested not later than one

13-15    year before the date the disclosure is sought.

13-16          (c)  A utilization review agent may provide confidential

13-17    information to a third party under contract or affiliated with the

13-18    utilization review agent for the sole purpose of performing or

13-19    assisting with utilization review.  Information provided to third

13-20    parties shall remain confidential.

13-21          (d)  If an individual submits a written request to the

13-22    utilization review agent for access to recorded personal

13-23    information about the individual, the utilization review agent

13-24    shall not later than the 10th business day after the date the

13-25    request is received:

13-26                (1)  give written notice to the individual submitting

13-27    the request of the nature and substance of the recorded personal

 14-1    information; and

 14-2                (2)  permit the individual to see and personally copy

 14-3    the recorded personal information pertaining to the individual or

 14-4    to obtain a copy of the recorded personal information by mail, at

 14-5    the discretion of the individual, unless the recorded personal

 14-6    information is in coded form, in which case the agent shall provide

 14-7    an accurate written translation in plain language.

 14-8          (e)  A utilization review agent's charges for providing a

 14-9    copy of recorded personal information to individuals shall be

14-10    reasonable, as determined by rule of the commissioner, and may not

14-11    include any costs that are otherwise recouped as part of the charge

14-12    for utilization review.

14-13          (f) [(c)]  The utilization review agent may not publish data

14-14    which identifies a particular physician or health care provider,

14-15    including any quality review studies or performance tracking data,

14-16    without prior written notice to the involved provider.  This

14-17    prohibition does not apply to internal systems or reports used by

14-18    the utilization review agent.

14-19          (g) [(d)]  Documents in the custody of the utilization review

14-20    agent that contain confidential patient information or physician or

14-21    health care provider financial data shall be destroyed by a method

14-22    which induces complete destruction of the information when the

14-23    agent determines the information is no longer needed.

14-24          (h) [(e)]  All patient, physician, and health care provider

14-25    data shall be maintained by the utilization review agent in a

14-26    confidential manner which prevents unauthorized disclosure to third

14-27    parties.  Nothing in this article shall be construed to allow a

 15-1    utilization review agent to take actions that violate a state or

 15-2    federal statute or regulation concerning confidentiality of patient

 15-3    records.

 15-4          (i)  Notwithstanding the provisions in Subsections (a)

 15-5    through (h) of this section, the utilization review agent shall

 15-6    provide to the commissioner on request individual medical records

 15-7    or other confidential information for determination of compliance

 15-8    with this article.  The information is confidential and privileged

 15-9    and is not subject to the open records law or to subpoena, except

15-10    to the extent necessary for the commissioner to enforce this

15-11    article.

15-12          (j)  Notwithstanding any other provision of this article, a

15-13    utilization review agent may not require as a condition of

15-14    treatment approval or for any other reason the observation of a

15-15    psychotherapy session or the submission or review of a mental

15-16    health therapist's process or progress notes.

15-17          SECTION 8.  Sections 9(a), (b), and (d), Article 21.58A,

15-18    Insurance Code, are amended to read as follows:

15-19          (a)  If the commissioner believes that any person or entity

15-20    conducting utilization review pursuant to this article is in

15-21    violation of [a utilization review agent has violated or is

15-22    violating] this article or applicable regulations, the commissioner

15-23    shall notify the utilization review agent, health maintenance

15-24    organization, insurer, or other person or entity of the alleged

15-25    violation and may compel the production of any and all documents or

15-26    other information as necessary in order to determine whether or not

15-27    such violation has taken place [provided by this code].

 16-1          (b)  The commissioner may initiate [the] proceedings under

 16-2    this section [after the 30th day after the date the commissioner

 16-3    notifies the agent as required by Subsection (a) of this section].

 16-4          (d)  If [after notice and hearing] the commissioner

 16-5    determines that the utilization review agent, health maintenance

 16-6    organization, insurer, or other person or entity  conducting

 16-7    utilization review under this article has violated or is violating

 16-8    any provision of this article, the commissioner may:

 16-9                (1)  impose sanctions under Section 7, Article 1.10 of

16-10    this code; [or]

16-11                (2)  issue a cease and desist order under Article 1.10A

16-12    of this code; or

16-13                (3)  assess administrative penalties under Article

16-14    1.10E of this code.

16-15          SECTION 9.  Section 13, Article 21.58A, Insurance Code, is

16-16    amended to read as follows:

16-17          Sec. 13.  AUTHORITY TO ADOPT RULES.  The commissioner may

16-18    [board shall have the authority to] adopt rules [and regulations]

16-19    to implement the provisions of this article.  The commissioner

16-20    [board] shall appoint an [11-member] advisory committee to advise

16-21    the commissioner [board] in developing rules [and regulations] to

16-22    administer this article as authorized by Section 2001.031,

16-23    Government Code.  The committee's deliberations shall be subject to

16-24    the open meetings law.  The committee shall include the public

16-25    counsel and one representative for each of the following:

16-26    insurance companies, health maintenance organizations, group

16-27    hospital service corporations, utilization review agents,

 17-1    employers, physicians, dentists, hospitals, registered nurses, and

 17-2    other health care providers.

 17-3          SECTION 10.  Section 14, Article 21.58A, Insurance Code, is

 17-4    amended by amending Subsections (e), (g), and (h) and adding

 17-5    Subsection (j) to read as follows:

 17-6          (e)  This article shall not apply to the terms or benefits of

 17-7    employee welfare benefit plans as defined in Section  3(1) [31(I)]

 17-8    of the Employee Retirement Income Security Act of 1974 (29 U.S.C.

 17-9    Section 1002(1) [1002]).

17-10          (g)  A health maintenance organization is not subject to this

17-11    article except as expressly provided in this subsection and

17-12    Subsection (i) of this section.  If such health maintenance

17-13    organization performs utilization review as defined herein, it

17-14    shall, as a condition of licensure:

17-15                (1)  comply with Sections 1, 2, 4, 5, 6, 7, 8, 9, 11,

17-16    12, 13, and 14 [4(b), (c), (e), (f), (h), (i), and (l)] of this

17-17    article, and the commissioner [board] shall promulgate rules for

17-18    appropriate verification and enforcement of compliance.  However,

17-19    nothing in this article shall be construed to prohibit or limit the

17-20    distribution of a proportion of the savings from the reduction or

17-21    elimination of unnecessary medical services, treatment, supplies,

17-22    confinements, or days of confinement in a health care facility

17-23    through profit sharing, bonus, or withhold arrangements to

17-24    participating physicians or participating health care providers for

17-25    rendering health care services to enrollees; and

17-26                (2)  [establish and maintain a system for:]

17-27                      [(A)  handling and responding to complaints by

 18-1    enrollees, patients, or health care providers;]

 18-2                      [(B)  providing health care providers with notice

 18-3    of medical necessity or program requirements that have not been

 18-4    met, including a reasonable opportunity to discuss the plan of

 18-5    treatment and clinical basis for a utilization review determination

 18-6    with a physician; and]

 18-7                      [(C)  providing the enrollee, patient, and health

 18-8    care provider an opportunity to appeal the determination; and]

 18-9                [(3)]  submit to assessment of maintenance taxes under

18-10    Article 20A.33, Texas Health Maintenance Organization Act (Article

18-11    20A.33, Vernon's Texas Insurance Code), to cover the costs of

18-12    administering compliance of health maintenance organizations under

18-13    this section.

18-14          (h)  An insurer which delivers or issues for delivery a

18-15    health insurance policy in Texas and is subject to this code is not

18-16    subject to this article except as expressly provided in this

18-17    subsection and Subsection (i) of this section.  If an insurer

18-18    performs utilization review as defined herein it shall, as a

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

18-20    9, 11, 12, 13, and 14 [4 through 8] of this article, and the

18-21    commissioner [board] shall promulgate rules for appropriate

18-22    verification and enforcement of compliance.  Such insurers shall be

18-23    subject to assessment of maintenance tax under Article 4.17 of this

18-24    code to cover the costs of administering compliance of insurers

18-25    under this section.

18-26          (j)  A specialty utilization review agent is not subject to

18-27    Section 4(b), (c), (h), or (k) or Section 6(b)(3) of this article.

 19-1    For purposes of this subsection, a specialty utilization review

 19-2    agent is a utilization review agent who conducts utilization review

 19-3    for specialty health care services, including dentistry,

 19-4    chiropractic, or physical therapy.  A specialty utilization review

 19-5    agent shall comply with the following requirements:

 19-6                (1)  the utilization review plan, including

 19-7    reconsideration and appeal requirements, shall be reviewed by a

 19-8    health care provider of the appropriate specialty and conducted in

 19-9    accordance with standards developed with input from a health care

19-10    provider of the appropriate specialty;

19-11                (2)  personnel employed by or under contract with a

19-12    specialty utilization review agent to perform utilization review

19-13    shall be appropriately trained and qualified; personnel who obtain

19-14    information directly from the physician or health care provider,

19-15    either orally or in writing, shall be nurses, physician assistants,

19-16    or other health care providers of the same specialty as the

19-17    utilization review agent and who are licensed or otherwise

19-18    authorized to provide the specialty health care service by a state

19-19    licensing agency in the United States, except that this provision

19-20    does not require those qualifications for personnel who perform

19-21    solely clerical or administrative tasks;

19-22                (3)  utilization review conducted by a specialty

19-23    utilization review agent shall be conducted under the direction of

19-24    a health care provider of the same specialty and shall be licensed

19-25    or otherwise authorized to provide the specialty health care

19-26    service by a state licensing agency in the United States;

19-27                (4)  subject to the notice requirements of Section 5 of

 20-1    this article, in any instance where the specialty utilization

 20-2    review agent questions the medical necessity or appropriateness of

 20-3    health care services, the health care provider who ordered the

 20-4    services shall, before the issuance of an adverse determination, be

 20-5    afforded a reasonable opportunity to discuss the plan of treatment

 20-6    for the patient and the clinical basis for the decision of the

 20-7    utilization review agent with a health care provider of the same

 20-8    specialty as the utilization review agent; and

 20-9                (5)  appeal decisions shall be made by a physician or

20-10    health care provider in the same or a similar specialty as

20-11    typically manages the medical, dental, or specialty condition,

20-12    procedure, or treatment under discussion for review of the adverse

20-13    determination.

20-14          SECTION 11.  This Act takes effect September 1, 1997, and

20-15    applies to an act of utilization review that is performed on or

20-16    after that date.  An act of utilization review that is performed

20-17    before that date is governed by the law in effect on the date the

20-18    act was performed, and the former law is continued in effect for

20-19    that purpose.

20-20          SECTION 12.  The importance of this legislation and the

20-21    crowded condition of the calendars in both houses create an

20-22    emergency and an imperative public necessity that the

20-23    constitutional rule requiring bills to be read on three several

20-24    days in each house be suspended, and this rule is hereby suspended.