Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                              SB 380.1
                                                SENATE BILL NO. 380
                                             INTRODUCED BY J. SMALL
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING HEALTH CARE INSURANCE LAWS;
  PROVIDING FOR PRIOR AUTHORIZATION REQUIREMENTS; PROVIDING EXEMPTIONS; PROVIDING
  FOR A PROVIDER'S RIGHT TO AN EXTERNAL REVIEW; REVISING UTILIZATION REVIEW AND
  GRIEVANCE PROCEDURES; AMENDING SECTION 33-32-309, MCA; AND PROVIDING AN IMMEDIATE
  EFFECTIVE DATE AND AN APPLICABILITY DATE.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.         Prior authorization requirements. (1) A health insurance issuer may
  not perform prior authorization on benefits for:
          (a)      generic prescription drugs that are not listed within any of the schedules of controlled
  substances found at 21 CFR 1308.11 through 21 CFR 1308.15 or the schedules of controlled substances found
  in Title 50, chapter 32;
          (b)      any prescription drug, generic or brand name, that is not listed within any of the schedules of
  controlled substances found at 21 CFR 1308.11 through 21 CFR 1308.15 or the schedules of controlled
  substances found in Title 50, chapter 32, after a covered person has been prescribed the drug without
  interruption for 6 months;
          (c)      any prescription drug or drugs, generic or brand name, on the grounds of therapeutic
  duplication if the covered person has already been subject to prior authorization on the grounds of therapeutic
  duplication for the same dosage of the prescription drug or drugs and coverage of the prescription drug or
  drugs was approved;
          (d)      any prescription drug, generic or brand name, solely because the dosage of the medication for
  the covered person has been adjusted by the prescriber of the prescription drug; or
          (e)      any prescription drug, generic or brand name, that is a long-acting injectable antipsychotic.
          (2)      Any adverse determination for a prescription drug made during prior authorization by a health
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68th Legislature 2023                                                                                              SB 380.1
  insurance issuer must be made by:
            (a)    a physician who is in the same specialty as the prescriber of the prescription drug subject to
  prior authorization; or
            (b)    a physician whose specialty focuses on the diagnosis and treatment of the condition for which
  the prescription drug was prescribed to treat, provided that prior authorization that does not result in an adverse
  determination does not require the involvement of a physician on the part of a health insurance issuer.
            (3)    (a) A health insurance issuer may not perform retrospective review on any benefits when:
            (i)    payment has already been furnished to the provider of a health care service unless the health
  insurance issuer has a credible reason to believe that fraud or other illegal activity may have occurred involving
  the health care service for which payment has been furnished; or
            (ii)   a health care service has been previously approved and deemed medically necessary during
  prior authorization or concurrent review, provided that the health insurance issuer may perform retrospective
  review if the health care service was delivered in a manner that exceeded the scope or duration of what was
  approved during prior authorization or concurrent review.
            (b)    Retrospectively reviewing approved, paid, or pending claims or authorizations of health care
  services for the purposes of informing future utilization review activities is not considered a form of retrospective
  review.
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            NEW SECTION. Section 2.       Exemption from prior authorization requirements. (1) A health
  insurance issuer that uses a prior authorization process for benefits may not require a provider to obtain prior
  authorization for a particular benefit if, in the most recent 6-month evaluation period, as described in subsection
  (2), the health insurance issuer has approved or would have approved not less than 90% of the prior
  authorization requests submitted by the provider for the particular benefit.
            (2)    Except as provided by subsection (3), a health insurance issuer shall evaluate whether a
  provider qualifies for an exemption from prior authorization requirements under subsection (1) once every 6
  months.
            (3)    A health insurance issuer may continue an exemption under subsection (1) without evaluating
  whether the provider qualifies for the exemption under subsection (1) for a particular evaluation period.
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68th Legislature 2023                                                                                               SB 380.1
           (4)     A provider is not required to request an exemption under subsection (1) to qualify for the
  exemption.
           (5)     A provider’s exemption from prior authorization requirements under subsection (1) remains in
  effect until:
           (a)     the 30th day after the date the health insurance issuer notifies the provider of the issuer’s
  determination to rescind the exemption under subsection (1), if the provider does not appeal the issuer’s
  determination; or
           (b)     if the provider appeals the determination, the fifth day after the date an independent review
  organization affirms the issuer’s determination to rescind the exemption.
           (6)     If a health insurance issuer does not finalize a rescission determination as specified in
  subsection (5), then the provider is considered to have met the criteria under subsection (1) to continue to
  qualify for the exemption.
           (7)     A health insurance issuer may rescind an exemption from prior authorization requirements
  under subsection (1) only:
           (a)     during January or June of each year;
           (b)     if the health insurance issuer makes a determination, on the basis of an examination of a
  random sample of not fewer than 20 and no more than 50 claims submitted by the provider during the most
  recent evaluation period described by subsection (2), that less than 90% of the claims for the particular benefit
  met the medical necessity criteria that would have been used by the health insurance issuer when conducting
  prior authorization review for the particular benefit during the relevant evaluation period; and
           (c)     if the health insurance issuer complies with other applicable requirements specified in this
  section, including:
           (i)     notifying the provider not less than 25 days before the proposed rescission is to take effect;
  and
           (ii)    providing with the notice under subsection (7)(c)(i):
           (A)     the sample information used to make the determination under subsection (7)(b); and
           (B)     a plain language explanation of how the provider may appeal and seek an independent review
  of the determination.
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68th Legislature 2023                                                                                              SB 380.1
          (8)        A determination made under subsection (7)(b) must be made by an individual licensed to
  practice medicine under Title 37, chapter 3. For a determination made under subsection (7)(b) with respect to a
  physician, the determination must be made by an individual licensed to practice medicine under Title 37,
  chapter 3, who has the same or similar specialty as that physician.
          (9)        A health insurance issuer may deny an exemption from prior authorization requirements under
  subsection (1) only if:
          (a)        the provider does not have the exemption at the time of the relevant evaluation period; and
          (b)        the health insurance issuer provides the provider with actual statistics and data for the relevant
  prior authorization request evaluation period and detailed information sufficient to demonstrate that the provider
  does not meet the criteria for an exemption from prior authorization requirements for the particular benefit under
  subsection (1).
          (10)       A health insurance issuer may not deny or reduce payment to a provider for a benefit for which
  the provider has qualified for an exemption from prior authorization requirements under subsection (1) based on
  medical necessity or appropriateness of care unless the provider:
          (a)        knowingly and materially misrepresented the benefit in a request for payment submitted to the
  health insurance issuer with the specific intent to deceive and obtain an unlawful payment from the issuer; or
          (b)        failed to substantially furnish or deliver the benefit.
          (11)       A health insurance issuer may not conduct a retrospective review of a benefit subject to an
  exemption except:
          (a)        to determine if the provider still qualifies for an exemption under this section; or
          (b)        if the health insurance issuer has a reasonable cause to suspect a basis for denial exists under
  subsection (10).
          (12)       Not later than 5 days after qualifying for an exemption from prior authorization requirements
  under subsection (1), a health insurance issuer must provide to a provider a notice that includes:
          (a)        a statement that the provider qualifies for an exemption from prior authorization requirements
  under subsection (1);
          (b)        a list of the benefits to which the exemption applies; and
          (c)        a statement of the duration of the exemption.
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68th Legislature 2023                                                                                              SB 380.1
           (13)    If a provider submits a prior authorization request for a benefit for which the provider qualifies
  for an exemption from prior authorization requirements under subsection (1), the health insurance issuer shall
  promptly provide a notice to the provider that includes:
           (a)     the information described by subsection (12); and
           (b)     a notification of the health insurance issuer’s payment requirements.
           (14)    Nothing in this section may be construed to:
           (a)     authorize a provider to provide a health care service outside the scope of the provider’s
  applicable license issued under Title 37; or
           (b)     require a health insurance issuer to pay for a benefit that is performed in violation of the laws of
  this state.
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           NEW SECTION. Section 3.        Provider right to external review. (1) Notwithstanding any other
  provision of this part, a provider has the right to an independent external review of an adverse determination
  regarding a prior authorization exemption under Title 33, chapter 32, part 2, conducted by an independent
  review organization. A health insurance issuer may not require a provider to engage in an internal grievance
  process before requesting a review by an independent review organization under this part.
           (2)     A health insurance issuer shall pay:
           (a)     for any independent external review of an adverse determination regarding a prior authorization
  exemption requested under this section; and
           (b)     a reasonable fee determined by the Montana board of medical examiners for any copies of
  medical records or other documents requested from a provider during an exemption rescission independent
  external review requested under this section.
           (3)     An independent review organization shall complete a review of an adverse determination
  regarding a prior authorization exemption not later than the seventh day after the date a provider files the
  request for an independent external review under this section.
           (4)     A provider may request that the independent review organization consider another random
  sample of not less than 20 and no more than 50 claims submitted to the health insurance issuer by the provider
  during the relevant evaluation period for the relevant health care service as part of its review. If the provider
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68th Legislature 2023                                                                                            SB 380.1
  makes a request under this subsection, the independent review organization shall base its determination on the
  medical necessity of claims reviewed by the health insurance issuer under Title 33, chapter 32, part 2, and
  reviewed under this subsection.
             (5)    A health insurance issuer is bound by an independent external review determination that does
  not affirm the determination made by the health insurance issuer to rescind a prior authorization exemption.
             (6)    A health insurance issuer may not retrospectively deny a benefit based on a rescission of an
  exemption, even if the health insurance issuer’s determination to rescind the prior authorization exemption is
  affirmed by an independent review organization.
             (7)    If a determination of a prior authorization exemption made by the health insurance issuer is
  overturned on review by an independent review organization, the health insurance issuer:
             (a)    may not attempt to rescind the exemption before the end of the next evaluation period that
  occurs; and
             (b)    may only rescind the exemption after if the entity complies with the previous provisions of this
  section.
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             Section 4. Section 33-32-309, MCA, is amended to read:
             "33-32-309.   Expedited review of grievance involving adverse determination. (1) A health
  insurance issuer shall establish written procedures for the expedited review of urgent care requests of
  grievances involving an adverse determination, and separate written procedures for the expedited review of
  prescription drug grievances involving an adverse determination, as described in subsection (11).
             (2)    A health insurance issuer shall provide an expedited review of a grievance involving an
  adverse determination with respect to a concurrent review of an urgent care request involving an admission,
  availability of care, continued stay, or health care service for a covered person who has received emergency
  services but has not been discharged from a facility. The procedures in subsection (1) must also specify the
  process for the concurrent review of urgent care requests under this subsection (2).
             (3)    The procedures under this section must provide that a covered person or, if applicable, the
  covered person's authorized representative may request an expedited review orally, in writing, or electronically.
             (4)    On receipt of a request for an expedited review, a health insurance issuer shall appoint one or
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68th Legislature 2023                                                                                             SB 380.1
  more physicians or health care professionals of the same licensure to review the adverse determination. An
  appointed physician or health care professional of the same licensure may not have been involved in making
  the initial adverse determination.
          (5)      In an expedited review, all necessary information, including the health insurance issuer's
  decision, must be transmitted between the health insurance issuer and the covered person or, if applicable, the
  covered person's authorized representative in the most expeditious method available, whether by telephone,
  facsimile, or other method.
          (6)      (a) The timeframe for making a decision under an expedited review and notification, as
  provided in subsection (8), must be as expeditious as the covered person's medical condition requires but may
  take no more than 72 hours after the receipt of the request for the expedited review.
          (b)      If the expedited review is of a grievance involving an adverse determination with respect to a
  concurrent review urgent care request, the health insurance issuer shall continue the health care service or
  treatment without liability to the covered person until the covered person has been notified of the determination.
          (7)      For purposes of calculating the timeframe within which a decision is required to be made under
  subsection (6), the time period within which the decision must be made begins on the date the request is filed
  with the health insurance issuer in accordance with the health insurance issuer's procedures for filing requests
  established under 33-32-307 without regard to whether all of the information necessary to make the
  determination accompanies the filing.
          (8)      A notification of a decision under this section must be in a manner calculated to