By Averitt                                            H.B. No. 1609
         77R6595 T                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to scheduled benefit review and utilization review.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1. Chapter 21, Insurance Code, is amended by adding
 1-5     Article 21.53X which reads as follows:
 1-6           Sec. 1. In this article:
 1-7                 (1)  "Enrollee" means an individual enrolled in a
 1-8     health benefit plan or a person with the authority to act on behalf
 1-9     of an enrollee such as a parent or guardian.  The definition of
1-10     enrollee does not include a health care provider acting on behalf
1-11     of an enrollee as described in Sec. 3(b) of this article.
1-12                 (2)  "Health benefit plan" means a plan described by
1-13     Section 2 of this article.
1-14                 (3)  "Health care provider" means any practitioner,
1-15     institutional provider, or other person or organization that
1-16     furnishes health care services and that is licensed or otherwise
1-17     authorized to practice in this state.
1-18                 (4)  "Scheduled benefit" means a  service, treatment or
1-19     supply that is described as a benefit in an enrollee's health
1-20     benefit plan.
1-21                 (5)  "Scheduled benefit review" means a review
1-22     conducted by the issuer of a health benefit plan or, at the
1-23     designation of the issuer of the health benefit plan, by a third
1-24     party administrator or a utilization review agent to determine if a
 2-1     service, treatment or supply being requested by an enrollee is a
 2-2     scheduled benefit.
 2-3                 (6)  "Third party administrator" means an entity
 2-4     licensed pursuant to Article 21.07-6 of this code.
 2-5                 (7)  "Utilization review" means utilization review
 2-6     conducted pursuant to Article 21.58A of this code.
 2-7                 (8)  "Utilization review agent" means a utilization
 2-8     review agent as defined in Article 21.58A of this code.
 2-9           Sec. 2. (a)  This article applies only to a health benefit
2-10     plan that:
2-11                 (1)  provides benefits for expenses incurred or
2-12     services provided as a result of a health condition, accident, or
2-13     sickness, including:
2-14                       (A)  an individual, group, blanket, or franchise
2-15     insurance policy, certificate or insurance agreement, a group
2-16     hospital service contract, or an individual or group evidence of
2-17     coverage that is issued by:
2-18                             (i)  an insurance company;
2-19                             (ii)  a group hospital service corporation
2-20     operating under Chapter 20 of this code;
2-21                             (iii)  a fraternal benefit society
2-22     operating under Chapter 10 of this code;
2-23                             (iv)  a stipulated premium insurance
2-24     company operating under Chapter 22 of this code;
2-25                             (v)  a Lloyd's plan operating under Chapter
2-26     18 of this code;
2-27                             (vi)  reciprocal or inter-insurance
 3-1     exchanges operating under Chapter 19 of this code;
 3-2                             (vii)  a health maintenance organization
 3-3     operating under Chapter 20A of this code);
 3-4                       (B)  a multiple employer welfare arrangement that
 3-5     holds a certificate of authority under Article 3.95-2 of this code;
 3-6                 (2)  is issued by an approved nonprofit health
 3-7     corporation that is certified under Section 162.001, Occupations
 3-8     Code, and that holds a certificate of authority issued by the
 3-9     commissioner under Article 21.52F of this code.
3-10           (b)  This article does not apply to:
3-11                 (1)  a plan that provides coverage:
3-12                       (A)  only for accidental death or dismemberment;
3-13                       (B)  for wages or payments in lieu of wages for a
3-14     period during which an employee is absent from work because of
3-15     sickness or injury;
3-16                       (C)  as a supplement to liability insurance;
3-17                       (D)  for credit insurance; or
3-18                       (E)  only for indemnity for hospital; or
3-19                 (2)  workers' compensation insurance coverage;
3-20                 (3)  medical payment insurance issued as part of a
3-21     motor vehicle insurance policy;
3-22                 (4)  a self-insured political subdivision plan; or
3-23                 (5)  a self-insured single employer plan.
3-24           Sec. 3. (a)  An issuer of a health benefit plan shall, upon
3-25     request of the enrollee or a health care provider acting on behalf
3-26     of the enrollee, conduct a scheduled benefit review.
3-27                 (b)  For purposes of this article, a health care
 4-1     provider is considered to be acting on behalf of an enrollee if:
 4-2                 (1)  the enrollee has provided written consent that:
 4-3                       (A)  authorizes that specific health care
 4-4     provider to obtain on behalf of the enrollee a scheduled benefit
 4-5     review; and
 4-6                       (B)  identifies the services, treatment, or
 4-7     supplies for which the scheduled benefit review is being requested;
 4-8                 (2)  the health care provider is either:
 4-9                       (A)  a preferred provider, as defined in Article
4-10     3.70-3C Sec. (1)(10) of this code, for the enrollee's health
4-11     benefit plan; or
4-12                       (B)  part of a health maintenance organization
4-13     delivery network as defined in Article 20A.02(w) of this code that
4-14     has contracted directly or indirectly to provide health care
4-15     services for the enrollee's health benefit plan; or
4-16                 (3)  the enrollee or the health care provider is
4-17     requesting the review as part of utilization review.
4-18           (c)  An issuer of a health benefit plan that conducts a
4-19     scheduled benefit review shall provide a written notification to
4-20     the enrollee and, if the request for the review was made by a
4-21     health care provider acting on behalf of the enrollee, to the
4-22     requesting health care provider, of a determination made in a
4-23     scheduled benefit review.
4-24           (d)  The written notification shall be mailed or otherwise
4-25     transmitted not later than 3 business days after a request for a
4-26     review under this article has been received by the issuer of the
4-27     health benefit plan.
 5-1           (e)  The commissioner shall establish by rule the elements
 5-2     that a written notification must contain, including:
 5-3                 (1)  a statement as to whether the enrollee is
 5-4     currently enrolled in the health benefit plan;
 5-5                 (2)  a description of the services, treatment or
 5-6     supplies being requested;
 5-7                 (3)  a statement as to whether the services, treatment
 5-8     or supplies being requested are a scheduled benefit under the
 5-9     enrollee's health benefit plan; and
5-10                 (4)  if the services, treatment or supplies are
5-11     determined to be a scheduled benefit:
5-12                       (A)  a statement regarding, if applicable, any
5-13     annual, lifetime or benefit maximums and the balance available to
5-14     the enrollee for the scheduled benefit.
5-15                       (B)  a disclosure, which contents shall be
5-16     developed by the commissioner, explaining that payment for
5-17     scheduled benefits may be affected by other factors.
5-18           Sec. 4. (a)  An issuer of a health benefit plan may delegate
5-19     its third party administrator or its utilization review agent to
5-20     perform a scheduled benefit review required by this article.
5-21           (b)  A utilization review agent that includes the elements
5-22     required in ___________ of this article in the written notification
5-23     issued pursuant to Section 5 of Article 21.58A shall be deemed to
5-24     have complied with this article.  The portion of a written
5-25     notification issued by a utilization review agent that constitutes
5-26     a determination of a scheduled benefit review shall be deemed a
5-27     written notification issued pursuant to this article.
 6-1           Sec 5. The commissioner may adopt reasonable rules as
 6-2     necessary to implement this article which may include rules
 6-3     addressing:
 6-4           (a)  the manner in which an enrollee or a health care
 6-5     provider acting on the enrollee's behalf may request a scheduled
 6-6     benefit review; and
 6-7           (b)  limitations on the amounts and types of information a
 6-8     health plan issuer can require the enrollee or a health care
 6-9     provider acting on the enrollee's behalf to provide in support of a
6-10     request.
6-11           SECTION 2.  Section 2, Article 21.58A, Insurance Code, Sec. 2
6-12     is amended to read as follows:
6-13           Sec. 2. In this article:
6-14                 (1)  "Administrative procedure act" means Chapter 2001,
6-15     Government Code.
6-16                 (2)  "Administrator" means a person holding a
6-17     certificate of authority under Article 21.07-6 of this code.
6-18                 (3)  "Affirmative determination" means a determination
6-19     by a utilization review agent that the health care services being
6-20     furnished or proposed to be furnished to a patient are medically
6-21     necessary.
6-22                 (4) [(3)]  "Adverse determination" means a
6-23     determination by a utilization review agent that the health care
6-24     services furnished or proposed to be furnished to a patient are not
6-25     medically necessary.
6-26                 (5)  "Calendar day" means the consecutive day following
6-27     the preceding day.
 7-1                 (6) [(4)]  "Certificate" means a certificate of
 7-2     registration granted by the commissioner to a utilization review
 7-3     agent.
 7-4                 (7) [(5)]  "Commissioner" means the commissioner of
 7-5     insurance.
 7-6                 (8) [(6)]  "Emergency care" means health care services
 7-7     provided in a hospital emergency facility or comparable facility to
 7-8     evaluate and stabilize medical conditions of a recent onset and
 7-9     severity, including but not limited to severe pain, that would lead
7-10     a prudent layperson possessing an average knowledge of medicine and
7-11     health to believe that his or her condition, sickness, or injury is
7-12     of such a nature that failure to get immediate medical care could
7-13     result in:
7-14                       (A)  placing the patient's health in serious
7-15     jeopardy;
7-16                       (B)  serious impairment to bodily functions;
7-17                       (C)  serious dysfunction of any bodily organ or
7-18     part;
7-19                       (D)  serious disfigurement; or
7-20                       (E)  in the case of a pregnant woman, serious
7-21     jeopardy to the health of the fetus.
7-22                 (9) [(7)]  "Dental plan" means an insurance policy or
7-23     health benefit plan, including a policy written by a company
7-24     subject to Chapter 20 of this code, that provides coverage for
7-25     expenses for dental services.
7-26                 (10) [(8)]  "Enrollee" means a person covered by a
7-27     health insurance policy or plan and includes a person who is
 8-1     covered as an eligible dependent of another person.
 8-2                 (11) [(9)]  "Health benefit plan" means a plan of
 8-3     benefits that defines the coverage provisions for health care for
 8-4     enrollees offered or provided by any organization, public or
 8-5     private, other than health insurance.
 8-6                 (12) [(10)]  "Health care provider" means any person,
 8-7     corporation, facility, or institution licensed by a state to
 8-8     provide or otherwise lawfully providing health care services that
 8-9     is eligible for independent reimbursement for those services.
8-10                 (13) [(11)]  "Health insurance policy" means an
8-11     insurance policy, including a policy written by a company subject
8-12     to Chapter 20 of this code, that provides coverage for medical or
8-13     surgical expenses incurred as a result of accident or sickness.
8-14                 (14) [(12)]  "Life threatening" means a disease or
8-15     condition for which the likelihood of death is probable unless the
8-16     course of the disease or condition is interrupted.
8-17                 (15) [(13)]  "Nurse" means a professional or registered
8-18     nurse, a licensed vocational nurse, or a licensed practical nurse.
8-19                 (16) [(14)]  "Open meetings law" means Chapter 551,
8-20     Government Code.
8-21                 (17) [(15)]  "Open records law" means Chapter 552,
8-22     Government Code.
8-23                 (18) [(16)]  "Patient" means the enrollee or an
8-24     eligible dependent of the enrollee under a health benefit plan or
8-25     health insurance plan.
8-26                 (19) [(17)]  "Payor" means:
8-27                       (A)  an insurer writing health insurance
 9-1     policies;
 9-2                       (B)  any preferred provider organization, health
 9-3     maintenance organization, self-insurance plan; or
 9-4                       (C)  any other person or entity which provides,
 9-5     offers to provide, or administers hospital, outpatient, medical, or
 9-6     other health benefits to persons treated by a health care provider
 9-7     in this state pursuant to any policy, plan, or contract.
 9-8                 (19) [(17)]  "Physician" means a licensed doctor of
 9-9     medicine or a doctor of osteopathy.
9-10                 (20) [(18)]  "Provider of record" means the physician
9-11     or other health care provider that has primary responsibility for
9-12     the care, treatment, and services rendered to the enrollee and
9-13     includes any health care facility when treatment is rendered on an
9-14     inpatient or outpatient basis.
9-15                 (21) [(19)]  "Utilization review" means a system for
9-16     prospective or concurrent review of the medical necessity and
9-17     appropriateness of health care services being provided or proposed
9-18     to be provided to an individual within this state. Utilization
9-19     review shall not include elective requests for clarification of
9-20     coverage.
9-21                 (22) [(20)]  "Utilization review agent" means an entity
9-22     that conducts utilization review for:
9-23                       (A)  an employer with employees in this state who
9-24     are covered under a health benefit plan or health insurance policy;
9-25                       (B)  a payor; or
9-26                       (C)  an administrator.
9-27                 (23) [(21)]  "Utilization review plan" means the
 10-1    screening criteria and utilization review procedures of a
 10-2    utilization review agent.
 10-3                (24) [(22)]  "Working day" means a weekday, excluding a
 10-4    legal holiday.
 10-5          SECTION 3.  Section 5 of Article 21.58A, Insurance Code, is
 10-6    amended to read as follows:
 10-7          Sec. 5. (a)  A utilization review agent shall unless
 10-8    otherwise permitted by rule provide written notification to
 10-9    [notify] the enrollee or a person acting on behalf of the enrollee
10-10    and the enrollee's provider of record of a determination made in a
10-11    utilization review.  The commissioner by rule may permit a
10-12    utilization review agent to provide written notification only to
10-13    the enrollee or a person acting on behalf of the enrollee or only
10-14    to the enrollee's provider of record in certain circumstances.
10-15          (b)  In the event of an affirmative determination, the [The]
10-16    written notification required by this section must be mailed or
10-17    otherwise transmitted not later than two working days after the
10-18    date of the request for utilization review and all information
10-19    necessary to complete the review is received by the agent.
10-20          (c)  A written notification of an affirmative determination
10-21    must include:
10-22                (1)  a statement that the services being furnished or
10-23    proposed to be furnished have been determined to be medically
10-24    necessary;
10-25                (2)  a description of the services that have been
10-26    determined to be medically necessary including, if appropriate, a
10-27    description of the facility or setting in which the services are to
 11-1    be performed.
 11-2                (3)  a disclosure, which contents shall be developed by
 11-3    the commissioner, explaining that payment for scheduled benefits
 11-4    may be affected by other factors.
 11-5          (d) [(c)]  In the event of an adverse determination, the
 11-6    notification by the utilization review agent must include:
 11-7                (1)  the principal reasons for the adverse
 11-8    determination;
 11-9                (2)  the clinical basis for the adverse determination;
11-10                (3)  a description or the source of the screening
11-11    criteria that were utilized as guidelines in making the
11-12    determination; and
11-13                (4)  a description of the procedure for the complaint
11-14    and appeal process, including:
11-15                      (A)  notification to the enrollee of the
11-16    enrollee's right to appeal an adverse determination to an
11-17    independent review organization;
11-18                      (B)  notification to the enrollee of the
11-19    procedures for appealing an adverse determination to an independent
11-20    review organization; and
11-21                      (C)  notification to an enrollee who has a
11-22    life-threatening condition of the enrollee's right to an immediate
11-23    review by an independent review organization and the procedures to
11-24    obtain that review.
11-25          (e) [(d)]  The notification of adverse determination required
11-26    by this section shall be provided by the utilization review agent:
11-27                (1)  within one calendar [working] day by telephone or
 12-1    electronic transmission to the provider of record in the case of a
 12-2    patient who is hospitalized at the time of the adverse
 12-3    determination, to be followed within three working days by written
 12-4    notification to [a letter notifying] the enrollee or a person
 12-5    acting on behalf of the enrollee [patient] and if, the original
 12-6    notification to the provider was not in writing, to the provider of
 12-7    record of an adverse determination [within three working days];
 12-8                (2)  within three working days by written notification
 12-9    [in writing] to the provider of record and the patient if the
12-10    patient is not hospitalized at the time of the adverse
12-11    determination; or
12-12                (3)  within the time appropriate to the circumstances
12-13    relating to the delivery of the services and the condition of the
12-14    patient, but in no case to exceed one hour from notification when
12-15    denying poststabilization care subsequent to emergency treatment as
12-16    requested by a treating physician or provider.  In such
12-17    circumstances, notification of an adverse determination shall be
12-18    provided to the treating physician or health care provider to be
12-19    followed within three working days by written notification to the
12-20    enrollee or a person acting on behalf of the enrollee and if, the
12-21    original notification to the provider was not in writing, the
12-22    provider of record.
12-23          SECTION 4.  Section 7, Article 21.58A, Insurance Code, is
12-24    amended to read as follows:
12-25          Sec. 7. (a)  A utilization review agent shall have
12-26    appropriate personnel reasonably available by toll-free telephone
12-27    [at least 40 hours per week during normal business hours in Texas]
 13-1    to discuss patients' care, [and] allow response to telephone review
 13-2    requests and provide the notification required by Section 5 of this
 13-3    article.
 13-4          (b)  A utilization review agent that fails to provide the
 13-5    notification of an adverse determination required by Section 5(d)
 13-6    of this article within the time periods required by Section 5(e) of
 13-7    this article shall be deemed to have made an affirmative
 13-8    determination of the services for which review was requested and
 13-9    shall provide the written notification required by Section 5(c) of
13-10    this article [have a telephone system capable of accepting or
13-11    recording or providing instructions to incoming phone calls during
13-12    other than normal business hours and shall respond to such calls
13-13    not later than two working days of the later of the date on which
13-14    the call was received or the date the details necessary to respond
13-15    have been received from the caller].
13-16          (c)  A utilization review agent must provide a written
13-17    description to the commissioner setting forth the procedures to be
13-18    used when responding to poststabilization care subsequent to
13-19    emergency treatment as requested by a treating physician or health
13-20    care provider.
13-21          SECTION 5.  Section 11, Article 21.58A, Insurance Code is
13-22    amended by adding Subsections (c), (d) and (e) to read as follows:
13-23          (c)  When a prospective utilization review is made of
13-24    services proposed to be furnished which results in an affirmative
13-25    determination a utilization review agent, a health maintenance
13-26    organization or an insurer subject to this article shall not
13-27    subsequently make a retrospective review of the services which were
 14-1    the subject of the affirmative determination.
 14-2          (d)  When a concurrent utilization review is made of services
 14-3    which are being furnished which results in an affirmative
 14-4    determination a utilization review agent, a health maintenance
 14-5    organization or an insurer subject to this article shall not
 14-6    subsequently make a retrospective review of the services which were
 14-7    the subject of the affirmative determination.
 14-8          (e)  When a utilization review is made of services that are
 14-9    being furnished or proposed to be furnished which results in an
14-10    affirmative determination, any request for review of an extension
14-11    of those services must be made by utilization review.
14-12          SECTION 6.  This Act takes effect September 1, 2001 however
14-13    health benefit plan issuers are not required to provide a scheduled
14-14    benefit review as provided by Section 1 of this Act until January
14-15    1, 2002.  Sections 2 through 5 of this Act applies only to a
14-16    utilization review conducted on or after January 1, 2002.