1-1           By:  Nelson, et al.                              S.B. No. 384

 1-2           (In the Senate - Filed January 30, 1997; February 3, 1997,

 1-3     read first time and referred to Committee on Economic Development;

 1-4     March 3, 1997, reported adversely, with favorable Committee

 1-5     Substitute by the following vote:  Yeas 11, Nays 0; March 3, 1997,

 1-6     sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 384                     By:  Cain

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to utilization review under health benefit plans and

1-11     health insurance policies.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Section 2, Article 21.58A, Insurance Code, is

1-14     amended to read as follows:

1-15           Sec. 2.  DEFINITIONS.  In this article:

1-16                 (1)  "Administrative procedure act" means Chapter 2001,

1-17     Government Code [the Administrative Procedure and Texas Register

1-18     Act (Article 6252-13a, Vernon's Texas Civil Statutes)].

1-19                 (2)  "Administrator" means a person holding a

1-20     certificate of authority under Article 21.07-6 of this code.

1-21                 (3)  "Adverse determination" means a determination by a

1-22     utilization review agent that the health care services furnished or

1-23     proposed to be furnished to a patient are not medically necessary

1-24     or not appropriate in the allocation of health care resources.

1-25                 (4)  ["Board" means the State Board of Insurance.]

1-26                 [(5)]  "Certificate" means a certificate of

1-27     registration granted by the commissioner [board] to a utilization

1-28     review agent.

1-29                 (5) [(6)]  "Commissioner" means the commissioner of

1-30     insurance.

1-31                 (6) [(7)]  "Emergency care" means health care services

1-32     provided in a hospital emergency facility or comparable facility to

1-33     evaluate and stabilize medical conditions of a recent onset and

1-34     severity, including but not limited to severe pain, that would lead

1-35     a prudent layperson possessing an average knowledge of medicine and

1-36     health to believe that his or her condition, sickness, or injury is

1-37     of such a nature that failure to get immediate medical care could

1-38     result in:

1-39                       (A)  placing the patient's health in serious

1-40     jeopardy;

1-41                       (B)  serious impairment to bodily functions;

1-42                       (C)  serious dysfunction of any bodily organ or

1-43     part;

1-44                       (D)  serious disfigurement; or

1-45                       (E)  in the case of a pregnant woman, serious

1-46     jeopardy to the health of the fetus [bona fide emergency services

1-47     as defined in Section 2(I), Chapter 397, Acts of the 54th

1-48     Legislature, 1955 (Article 3.70-2, Vernon's Texas Insurance Code)

1-49     and Section 2(t), Texas Health Maintenance Organization Act

1-50     (Article 20A.02, Vernon's Texas Insurance Code)].

1-51                 (7) [(8)]  "Dental plan" means an insurance policy or

1-52     health benefit plan, including a policy written by a company

1-53     subject to Chapter 20 of this code, that provides coverage for

1-54     expenses for dental services.

1-55                 (8) [(9)]  "Enrollee" means a person covered by a

1-56     health insurance policy or plan and includes a person who is

1-57     covered as an eligible dependent of another person.

1-58                 (9) [(10)]  "Health benefit plan" means a plan of

1-59     benefits that defines the coverage provisions for health care for

1-60     enrollees offered or provided by any organization, public or

1-61     private, other than health insurance.

1-62                 (10) [(11)]  "Health care provider" means any person,

1-63     corporation, facility, or institution licensed by a state to

1-64     provide or otherwise lawfully providing health care services that

 2-1     is eligible for independent reimbursement for those services.

 2-2                 (11) [(12)]  "Health insurance policy" means an

 2-3     insurance policy, including a policy written by a company subject

 2-4     to Chapter 20 of this code, that provides coverage for medical or

 2-5     surgical expenses incurred as a result of accident or sickness.

 2-6                 (12)  "Life threatening" means diseases or conditions

 2-7     where the likelihood of death is high unless the course of the

 2-8     disease or condition is interrupted.

 2-9                 (13)  "Nurse" means a professional or registered nurse,

2-10     a licensed vocational nurse, or a licensed practical nurse.

2-11                 (14)  "Open meetings law" means Chapter 551, Government

2-12     Code [271, Acts of the 60th Legislature, Regular Session, 1967

2-13     (Article 6252-17, Vernon's Texas Civil Statutes)].

2-14                 (15)  "Open records law" means Chapter 552, Government

2-15     Code [424, Acts of the 63rd Legislature, Regular Session, 1973

2-16     (Article 6252-17a, Vernon's Texas Civil Statutes)].

2-17                 (16)  "Patient" means the enrollee or an eligible

2-18     dependent of the enrollee under a health benefit plan or health

2-19     insurance plan.

2-20                 (17)  "Payor" means:

2-21                       (A)  an insurer writing health insurance

2-22     policies;

2-23                       (B)  any preferred provider organization, health

2-24     maintenance organization, self-insurance plan; or

2-25                       (C)  any other person or entity which provides,

2-26     offers to provide, or administers hospital, outpatient, medical, or

2-27     other health benefits to persons treated by a health care provider

2-28     in this state pursuant to any policy, plan, or contract.

2-29                 (18)  "Physician" means a licensed doctor of medicine

2-30     or a doctor of osteopathy.

2-31                 (19)  "Provider of record" means the physician or other

2-32     health care provider that has primary responsibility for the care,

2-33     treatment, and services rendered to the enrollee and includes any

2-34     health care facility when treatment is rendered on an inpatient or

2-35     outpatient basis.

2-36                 (20)  "Utilization review" means a system for

2-37     prospective or concurrent review of the medical necessity and

2-38     appropriateness of health care services being provided or proposed

2-39     to be provided to an individual within this state.  Utilization

2-40     review shall not include elective requests for clarification of

2-41     coverage.

2-42                 (21)  "Utilization review agent" means an entity that

2-43     conducts utilization review for:

2-44                       (A)  an employer with employees in this state who

2-45     are covered under a health benefit plan or health insurance policy;

2-46                       (B)  a payor; or

2-47                       (C)  an administrator.

2-48                 (22)  "Utilization review plan" means the screening

2-49     criteria and utilization review procedures of a utilization review

2-50     agent.

2-51                 (23)  "Working day" means a weekday, excluding a legal

2-52     holiday.

2-53           SECTION 2.  Subsections (b), (d), (e), and (f), Section 3,

2-54     Article 21.58A, Insurance Code, are amended to read as follows:

2-55           (b)  The commissioner may only issue a certificate to an

2-56     applicant that has met all the requirements of this article and all

2-57     applicable rules and regulations of the commissioner [board].

2-58           (d)  Certification may be renewed biennially by filing, not

2-59     later than March 1, a renewal form with the commissioner

2-60     accompanied by a renewal fee in an amount set by the commissioner

2-61     [board].

2-62           (e)  The commissioner shall promulgate certification and

2-63     renewal forms to be filed under this section.  The form for initial

2-64     certification must require the following:

2-65                 (1)  the entity's name, address, telephone number, and

2-66     normal business hours;

2-67                 (2)  the name and address of an agent for service of

2-68     process in this state;

2-69                 (3)  a summary of the utilization review plan, but in

 3-1     no event shall proprietary details be subject to inclusion in the

 3-2     summary;

 3-3                 (4)  information concerning the personnel categories

 3-4     that will perform utilization review for the utilization review

 3-5     agent;

 3-6                 (5)  a copy of the procedure established by the

 3-7     utilization review agent as required by this article for appeal of

 3-8     an adverse determination;

 3-9                 (6)  a certification that the utilization review agent

3-10     will comply with the provisions of this article; and

3-11                 (7)  a copy of the procedures for handling oral and

3-12     written complaints by enrollees, patients, or health care

3-13     providers.

3-14           (f)  The commissioner [board] shall establish, administer,

3-15     and enforce the certification and renewal fees under this section

3-16     in amounts not greater than that necessary to cover the cost of

3-17     administration of this article.

3-18           SECTION 3.  Subsections (c), (h), (i), (k), (m), and (n),

3-19     Section 4, Article 21.58A, Insurance Code, are amended to read as

3-20     follows:

3-21           (c)  Personnel employed by or under contract with the

3-22     utilization review agent to perform utilization review shall be

3-23     appropriately trained and qualified.  Personnel who obtain

3-24     information regarding a patient's specific medical condition,

3-25     diagnosis, and treatment options or protocols directly from the

3-26     physician or health care provider, either orally or in writing, and

3-27     who are not physicians shall be nurses or[,] physician assistants.

3-28     Personnel who obtain other information directly from the physician

3-29     or health care provider, either orally or in writing, and who are

3-30     not physicians shall be nurses, physician assistants, registered

3-31     records administrators, or accredited records technicians, who are

3-32     either licensed or certified, or shall be individuals who have

3-33     received formal orientation and training in accordance with

3-34     policies and procedures established by the utilization review agent

3-35     to assure compliance with this section, and a description of such

3-36     policies and procedures shall be filed with the commissioner.  This

3-37     provision shall not be interpreted to require such qualifications

3-38     for personnel who perform clerical or administrative tasks.

3-39           (h)  Utilization review conducted by a utilization review

3-40     agent shall be under the direction of a physician licensed to

3-41     practice medicine in the State of Texas [by a state licensing

3-42     agency in the United States].

3-43           (i)  Each utilization review agent shall utilize written

3-44     medically acceptable screening criteria and review procedures which

3-45     are established and periodically evaluated and updated with

3-46     appropriate involvement from physicians, including practicing

3-47     physicians, dentists, and other health care providers.  Utilization

3-48     review decisions shall be made in accordance with currently

3-49     accepted medical or health care practices, taking into account

3-50     special circumstances of each case that may require deviation from

3-51     the norm stated in the screening criteria.  Screening criteria must

3-52     be objective, clinically valid, compatible with established

3-53     principles of health care, and flexible enough to allow deviations

3-54     from the norms when justified on a case-by-case basis.  Screening

3-55     criteria must be used to determine only whether to approve the

3-56     requested treatment.  Denials must be referred to an appropriate

3-57     physician, dentist, or other health care provider to determine

3-58     medical necessity.  Such written screening criteria and review

3-59     procedures shall be available for review and inspection to

3-60     determine appropriateness and compliance as deemed necessary by the

3-61     commissioner and copying as necessary for the commissioner to carry

3-62     out his or her lawful duties under this code, provided, however,

3-63     that any information obtained or acquired under the authority of

3-64     this subsection and article is confidential and privileged and not

3-65     subject to the open records law or subpoena except to the extent

3-66     necessary for the [board or] commissioner to enforce this article.

3-67           (k)  Subject to the notice requirements of Section 5 of this

3-68     article, in any instance where the utilization review agent is

3-69     questioning the medical necessity or appropriateness of health care

 4-1     services, the health care provider who ordered the services shall

 4-2     be afforded a reasonable opportunity to discuss the plan of

 4-3     treatment for the patient and the clinical basis for the

 4-4     utilization review agent's decision with a physician [or, in the

 4-5     case of a dental plan with a dentist,] prior to issuance of an

 4-6     adverse determination.

 4-7           (m)  A utilization review agent shall establish and maintain

 4-8     a complaint system that provides reasonable procedures for the

 4-9     resolution of oral or written complaints initiated by enrollees,

4-10     patients, or health care providers concerning the utilization

4-11     review and shall maintain records of such [written] complaints for

4-12     three [two] years from the time the complaints are filed.  The

4-13     complaint procedure shall include a written response to the

4-14     complainant by the agent within 30 [60] days.  The utilization

4-15     review agent shall submit to the commissioner a summary report of

4-16     all complaints at such times and in such forms as the commissioner

4-17     [board] may require and shall permit the commissioner to examine

4-18     the complaints and all relevant documents at any time.

4-19           (n)  The utilization review agent may delegate utilization

4-20     review to qualified personnel in the hospital or health care

4-21     facility where the health care services were or are to be provided.

4-22     However, such delegation shall not relieve the utilization review

4-23     agent of full responsibility for compliance with this article,

4-24     including the conduct of those to whom utilization review has been

4-25     delegated.

4-26           SECTION 4.  Subsections (c) and (d), Section 5, Article

4-27     21.58A, Insurance Code, are amended to read as follows:

4-28           (c)  In the event of an adverse determination, the

4-29     notification by the utilization review agent must include:

4-30                 (1)  the principal reasons for the adverse

4-31     determination;

4-32                 (2)  the clinical basis for the adverse determination;

4-33                 (3)  a description or the source of the screening

4-34     criteria that were utilized as guidelines in making the

4-35     determination; and

4-36                 (4) [(3)]  a description of the procedure for the

4-37     complaint and appeal process.

4-38           (d)  The notification of adverse determination required by

4-39     this section shall be provided by the utilization review agent:

4-40                 (1)  within one working day by telephone or electronic

4-41     transmission to the provider of record in the case of a patient who

4-42     is hospitalized at the time of the adverse determination, to be

4-43     followed by a letter notifying the patient and the provider of

4-44     record of an adverse determination within three working days; [or]

4-45                 (2)  within three working days in writing to the

4-46     provider of record and the patient if the patient is not

4-47     hospitalized at the time of the adverse determination; or

4-48                 (3)  within the time appropriate to the circumstances

4-49     relating to the delivery of the services and the condition of the

4-50     patient, but in no case to exceed one hour from notification when

4-51     denying poststabilization care subsequent to emergency treatment as

4-52     requested by a treating physician or provider.  In such

4-53     circumstances, notification shall be provided to the treating

4-54     physician or health care provider.

4-55           SECTION 5.  Section 6, Article 21.58A, Insurance Code, is

4-56     amended to read as follows:

4-57           Sec. 6.  APPEAL OF ADVERSE DETERMINATIONS OF UTILIZATION

4-58     REVIEW AGENTS.  (a)  A utilization review agent shall maintain and

4-59     make available a written description of [an] appeal procedures

4-60     involving [procedure of] an adverse determination.

4-61           (b)  The procedures for appeals shall be reasonable and shall

4-62     include the following:

4-63                 (1)  a provision that an enrollee, a person acting on

4-64     behalf of the enrollee, or the enrollee's physician or health care

4-65     provider may appeal the adverse determination orally or in writing

4-66     [and shall be provided, on request, a clear and concise statement

4-67     of the clinical basis for the adverse determination];

4-68                 (2)  a provision that, within five working days from

4-69     receipt of the appeal, the utilization review agent shall send to

 5-1     the appealing party a letter acknowledging the date of the

 5-2     utilization review agent's receipt of the appeal and include a list

 5-3     of documents needed to be submitted by the appealing party to the

 5-4     utilization review agent for the appeal.  Such letter must also

 5-5     include provisions listed in this subsection.  When the utilization

 5-6     review agent receives an oral appeal of adverse determination, the

 5-7     utilization review agent shall send a one-page appeal form to the

 5-8     appealing party;

 5-9                 (3)  a provision that appeal decisions shall be made by

5-10     a physician, provided that, if the appeal is denied and within 10

5-11     working days the health care provider sets forth in writing good

5-12     cause for having a particular type of a specialty provider review

5-13     the case, the denial shall be reviewed by a health care provider in

5-14     the same or similar specialty as typically manages the medical,

5-15     dental, or specialty condition, procedure, or treatment under

5-16     discussion for review of the adverse determination, and such

5-17     specialty review shall be completed within 15 working days of

5-18     receipt of the request;

5-19                 (4)  in addition to the written appeal, a method for an

5-20     expedited appeal procedure for emergency care denials, denials of

5-21     care for life-threatening conditions, and denials of continued

5-22     stays for hospitalized patients.  Such procedure[, which] shall

5-23     include a review by a health care provider who has not previously

5-24     reviewed the case who is of the same or a similar specialty as

5-25     typically manages the medical condition, procedure, or treatment

5-26     under review.  The time frame in which[;] such appeal must be

5-27     completed shall be based on the medical or dental immediacy of the

5-28     condition, procedure, or treatment, but may in no event exceed one

5-29     working day from the date [no later than one working day following

5-30     the day on which the appeal], [including] all information necessary

5-31     to complete the appeal[,] is received [made to the utilization

5-32     review agent]; [and]

5-33                 (5)  a provision that after the utilization review

5-34     agent has sought review of the appeal of the adverse determination,

5-35     the utilization review agent shall issue a response letter to the

5-36     patient, a person acting on behalf of the patient, or the patient's

5-37     physician or health care provider explaining the resolution of the

5-38     appeal.  Such letter shall include a statement of the specific

5-39     medical, dental, or contractual reasons for the resolution, the

5-40     clinical basis for such decision, and the specialization of any

5-41     physician or other provider consulted; and

5-42                 (6)  written notification to the appealing party of the

5-43     determination of the appeal, as soon as practical, but in no case

5-44     later than 30 days after the date the utilization review agent

5-45     receives the appeal [receiving all the required documentation of

5-46     the appeal.  If the appeal is denied, the written notification

5-47     shall include the clinical basis for the appeal's denial and the

5-48     specialty of the physician making the denial].

5-49           SECTION 6.  Section 7, Article 21.58A, Insurance Code, is

5-50     amended by adding Subsection (c) to read as follows:

5-51           (c)  A utilization review agent must provide a written

5-52     description to the commissioner setting forth the procedures to be

5-53     used when responding to poststabilization care subsequent to

5-54     emergency treatment as requested by a treating physician or health

5-55     care provider.

5-56           SECTION 7.  Section 8, Article 21.58A, Insurance Code, is

5-57     amended to read as follows:

5-58           Sec. 8.  CONFIDENTIALITY.  (a)  A utilization review agent

5-59     shall preserve the confidentiality of individual medical records to

5-60     the extent required by law.

5-61           (b)  A utilization review agent may not disclose or publish

5-62     individual medical records, personal information, or other

5-63     confidential information about a patient obtained in the

5-64     performance of utilization review without the prior written consent

5-65     of the patient or as otherwise required by law.  If such

5-66     authorization is submitted by anyone other than the individual who

5-67     is the subject of the personal or confidential information

5-68     requested, such authorization must:

5-69                 (1)  be dated; and

 6-1                 (2)  contain the signature of the individual who is the

 6-2     subject of the personal or confidential information requested.  The

 6-3     signature must have been obtained one year or less prior to the

 6-4     date the disclosure is sought or the authorization is invalid.

 6-5           (c)  A utilization review agent may provide confidential

 6-6     information to a third party under contract or affiliated with the

 6-7     utilization review agent for the sole purpose of performing or

 6-8     assisting with utilization review.  Information provided to third

 6-9     parties shall remain confidential.

6-10           (d)  If an individual submits a written request to the

6-11     utilization review agent for access to recorded personal

6-12     information about the individual, the utilization review agent

6-13     shall within 10 business days from the date such request is

6-14     received:

6-15                 (1)  inform the individual submitting the request of

6-16     the nature and substance of the recorded personal information in

6-17     writing; and

6-18                 (2)  permit the individual to see and copy, in person,

6-19     the recorded personal information pertaining to the individual or

6-20     to obtain a copy of the recorded personal information by mail, at

6-21     the discretion of the individual, unless the recorded personal

6-22     information is in coded form, in which case an accurate translation

6-23     in plain language shall be provided in writing.

6-24           (e)  A utilization review agent's charges for providing a

6-25     copy of recorded personal information to individuals shall be

6-26     reasonable, as determined by rule of the commissioner, and may not

6-27     include any costs that are otherwise recouped as part of the charge

6-28     for utilization review.

6-29           (f) [(c)]  The utilization review agent may not publish data

6-30     which identifies a particular physician or health care provider,

6-31     including any quality review studies or performance tracking data,

6-32     without prior written notice to the involved provider.  This

6-33     prohibition does not apply to internal systems or reports used by

6-34     the utilization review agent.

6-35           (g) [(d)]  Documents in the custody of the utilization review

6-36     agent that contain confidential patient information or physician or

6-37     health care provider financial data shall be destroyed by a method

6-38     which induces complete destruction of the information when the

6-39     agent determines the information is no longer needed.

6-40           (h) [(e)]  All patient, physician, and health care provider

6-41     data shall be maintained by the utilization review agent in a

6-42     confidential manner which prevents unauthorized disclosure to third

6-43     parties.  Nothing in this article shall be construed to allow a

6-44     utilization review agent to take actions that violate a state or

6-45     federal statute or regulation concerning confidentiality of patient

6-46     records.

6-47           (i)  Notwithstanding the provisions in Subsections (a)

6-48     through (h) of this section, the utilization review agent shall

6-49     provide to the commissioner on request individual medical records

6-50     or other confidential information for determination of compliance

6-51     with this article.  Such information shall be confidential and not

6-52     subject to the open records law.

6-53           SECTION 8.  Subsections (a), (b), and (d), Section 9, Article

6-54     21.58A, Insurance Code, is amended to read as follows:

6-55           (a)  If the commissioner believes that any person or entity

6-56     conducting utilization review pursuant to this article is in

6-57     violation of [a utilization review agent has violated or is

6-58     violating] this article or applicable regulations, the commissioner

6-59     shall notify the utilization review agent, health maintenance

6-60     organization, or insurer of the alleged violation and may compel

6-61     the production of any and all documents or other information as

6-62     necessary in order to determine whether or not such violation has

6-63     taken place [provided by this code].

6-64           (b)  The commissioner may initiate the proceedings under this

6-65     section [after the 30th day after the date the commissioner

6-66     notifies the agent as required by Subsection (a) of this section].

6-67           (d)  If [after notice and hearing] the commissioner

6-68     determines that the utilization review agent, health maintenance

6-69     organization, or insurer conducting utilization review pursuant to

 7-1     this article has violated or is violating any provision of this

 7-2     article, the commissioner may:

 7-3                 (1)  impose sanctions under Section 7, Article 1.10 of

 7-4     this code; [or]

 7-5                 (2)  issue a cease and desist order under Article 1.10A

 7-6     of this code; or

 7-7                 (3)  assess administrative penalties under Article

 7-8     1.10E of this code.

 7-9           SECTION 9.  Section 13, Article 21.58A, Insurance Code, is

7-10     amended to read as follows:

7-11           Sec. 13.  AUTHORITY TO ADOPT RULES.  The commissioner may

7-12     [board shall] have the authority to adopt rules and regulations to

7-13     implement the provisions of this article.  The commissioner [board]

7-14     shall appoint an [11-member] advisory committee to advise the

7-15     commissioner [board] in developing rules and regulations to

7-16     administer this article as authorized by Section 2001.031,

7-17     Government Code.  The committee's deliberations shall be subject to

7-18     the open meetings law.  The committee shall include the public

7-19     counsel and one representative for each of the following:

7-20     insurance companies, health maintenance organizations, group

7-21     hospital service corporations, utilization review agents,

7-22     employers, physicians, dentists, hospitals, registered nurses, and

7-23     other health care providers.

7-24           SECTION 10.  Section 14, Article 21.58A, Insurance Code, is

7-25     amended by amending Subsections (e), (g), and (h) and adding

7-26     Subsection (j) to read as follows:

7-27           (e)  This article shall not apply to the terms or benefits of

7-28     employee welfare benefit plans as defined in Section  3(1) [31(I)]

7-29     of the Employee Retirement Income Security Act of 1974 (29 U.S.C.

7-30     Section 1002(1) [1002]).

7-31           (g)  A health maintenance organization is not subject to this

7-32     article except as expressly provided in this subsection and

7-33     Subsection (i) of this section.  If such health maintenance

7-34     organization performs utilization review as defined herein, it

7-35     shall, as a condition of licensure:

7-36                 (1)  comply with Sections 1, 2, 4, 5, 6, 7, 8, 9, 11,

7-37     12, 13, and 14 [4(b), (c), (e), (f), (h), (i), and (l)] of this

7-38     article, and the commissioner [board] shall promulgate rules for

7-39     appropriate verification and enforcement of compliance.  However,

7-40     nothing in this article shall be construed to prohibit or limit the

7-41     distribution of a proportion of the savings from the reduction or

7-42     elimination of unnecessary medical services, treatment, supplies,

7-43     confinements, or days of confinement in a health care facility

7-44     through profit sharing, bonus, or withhold arrangements to

7-45     participating physicians or participating health care providers for

7-46     rendering health care services to enrollees; and

7-47                 (2)  [establish and maintain a system for:]

7-48                       [(A)  handling and responding to complaints by

7-49     enrollees, patients, or health care providers;]

7-50                       [(B)  providing health care providers with notice

7-51     of medical necessity or program requirements that have not been

7-52     met, including a reasonable opportunity to discuss the plan of

7-53     treatment and clinical basis for a utilization review determination

7-54     with a physician; and]

7-55                       [(C)  providing the enrollee, patient, and health

7-56     care provider an opportunity to appeal the determination; and]

7-57                 [(3)]  submit to assessment of maintenance taxes under

7-58     Article 20A.33, Texas Health Maintenance Organization Act (Article

7-59     20A.33, Vernon's Texas Insurance Code), to cover the costs of

7-60     administering compliance of health maintenance organizations under

7-61     this section.

7-62           (h)  An insurer which delivers or issues for delivery a

7-63     health insurance policy in Texas and is subject to this code is not

7-64     subject to this article except as expressly provided in this

7-65     subsection and Subsection (i) of this section.  If an insurer

7-66     performs utilization review as defined herein it shall, as a

7-67     condition of licensure, comply with Sections 1, 2, 4, 5, 6, 7, 8,

7-68     9, 11, 12, 13, and 14 [4 through 8] of this article, and the

7-69     commissioner [board] shall promulgate rules for appropriate

 8-1     verification and enforcement of compliance.  Such insurers shall be

 8-2     subject to assessment of maintenance tax under Article 4.17 of this

 8-3     code to cover the costs of administering compliance of insurers

 8-4     under this section.

 8-5           (j)  A specialty utilization review agent is not subject to

 8-6     Section 4(b), (c), (h), or (k) or Section 6(b)(3) of this article.

 8-7     For purposes of this subsection, a specialty utilization review

 8-8     agent means a utilization review agent that conducts utilization

 8-9     review for specialty health care services, including but not

8-10     limited to dentistry, chiropractic, or physical therapy.  A

8-11     specialty utilization review agent shall comply with the following

8-12     requirements:

8-13                 (1)  the utilization review plan, including

8-14     reconsideration and appeal requirements, shall be reviewed by a

8-15     health care provider of the appropriate specialty and conducted in

8-16     accordance with standards developed with input from a health care

8-17     provider of the appropriate specialty;

8-18                 (2)  personnel employed by or under contract with a

8-19     specialty utilization review agent to perform utilization review

8-20     shall be appropriately trained and qualified.  Personnel who obtain

8-21     information directly from the physician or health care provider,

8-22     either orally or in writing, shall be nurses, physician assistants,

8-23     or other health care providers of the same specialty as the

8-24     utilization review agent and who are licensed or otherwise

8-25     authorized to provide the specialty health care service in this

8-26     state;

8-27                 (3)  utilization review conducted by a specialty

8-28     utilization review agent shall be conducted under the direction of

8-29     a health care provider of the same specialty and shall be licensed

8-30     or otherwise authorized to provide the specialty health care

8-31     service in this state;

8-32                 (4)  subject to the notice requirements of Section 5 of

8-33     this article, in any instance where the specialty utilization

8-34     review agent questions the medical necessity or appropriateness of

8-35     health care services, the health care provider who ordered the

8-36     services shall, prior to the issuance of an adverse determination,

8-37     be afforded a reasonable opportunity to discuss the plan of

8-38     treatment for the patient and the clinical basis for the decision

8-39     of the utilization review agent with a health care provider of the

8-40     same specialty as the utilization review agent; and

8-41                 (5)  appeal decisions shall be made by a physician or

8-42     health care provider in the same or a similar specialty as

8-43     typically manages the medical, dental, or specialty condition,

8-44     procedure, or treatment under discussion for review of the adverse

8-45     determination.

8-46           SECTION 11.  This Act takes effect September 1, 1997.

8-47           SECTION 12.  The importance of this legislation and the

8-48     crowded condition of the calendars in both houses create an

8-49     emergency and an imperative public necessity that the

8-50     constitutional rule requiring bills to be read on three several

8-51     days in each house be suspended, and this rule is hereby suspended.

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