Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                               LC 4073
                                      _____________ BILL NO. _____________
                   INTRODUCED BY _________________________________________________
                                           (Primary Sponsor)
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING UTILIZATION REVIEW LAWS;
  PROVIDING EXEMPTIONS FROM REVIEW UNDER CERTAIN CIRCUMSTANCES; ESTABLISHING
  REQUIREMENTS FOR INDIVIDUALS MAKING OR REVIEWING ADVERSE DETERMINATIONS;
  ESTABLISHING PROCEDURES FOR SUBMISSION OF PRESCRIPTION DRUG ORDERS REQUIRING
  REVIEW; ESTABLISHING REPORTING REQUIREMENTS; REVISING A DEFINITION; AND AMENDING
  SECTIONS 33-32-102, 33-32-106, 33-32-107, AND 33-32-208, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1. Exemption for continuity of care on change in health plans. (1)
  When a covered person changes health plans, a utilization review organization shall honor a certification for
  health care services granted by a previous utilization review organization for at least the first 12 months of the
  person's coverage under a new health plan on receiving information documenting the certification from the
  covered person or the person's health care provider.
          (2)      During the time period specified in subsection (1), a utilization review organization may perform
  its own review to grant certification.
          (3)      If a change in coverage or approval criteria occurs for a previously certified health care service,
  the change in coverage or approval criteria does not affect a covered person who received certification for a
  health care service before the effective date of the change for the remainder of the covered person's plan year.
          (4)      A utilization review organization shall continue to honor a certification it has granted to a
  covered person when the person changes to a product offered by the same health insurance issuer.
          (5)      A utilization review organization may not discriminate against a covered person based on
  whether the person has a certification for services granted from a previous utilization review organization.
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          NEW SECTION. Section 2. Exemption from utilization review for certain health care providers.
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68th Legislature 2023                                                                                               LC 4073
  (1) A utilization review organization may not require a health care provider to undergo utilization review for a
  health care service in order for the covered person to whom the service is being provided to receive coverage
  if, in the most recent 12-month period, the utilization review organization has certified or would have certified at
  least 80% of the utilization review requests submitted by the health care provider for the same health care
  service.
             (2)   A utilization review organization may not require a health care provider to complete a utilization
  review for any health care service if, in the most recent 12-month period, the utilization review organization has
  approved or would have approved at least 80% of the utilization review requests submitted by the health care
  provider for five separate health care services.
             (3)   A utilization review organization may not evaluate more frequently than every 12 months
  whether a health care provider continues to qualify for the exemptions allowed under this section.
             (4)   A health care provider is not required to request an exemption in order to qualify for an
  exemption.
             (5)   (a) A health care provider who does not receive an exemption may request evidence to support
  the utilization review organization's decision. The request may be made at any time but may not be made more
  than once a year for each service.
             (b)   A health care provider may appeal a utilization review organization's decision to deny an
  exemption.
             (6)   A utilization review organization shall provide a health care provider that receives an exemption
  a notice that includes:
             (a)   a statement that the health care provider qualifies for an exemption from utilization review
  requirements;
             (b)   a list of services to which the exemption applies; and
             (c)   a statement of the duration of the exemption.
             (7)   A utilization review organization may not deny or reduce payment for a health care service
  exempted from a utilization review requirement under this section, including a health care service performed or
  supervised by another health care provider when the health care provider who ordered the service received an
  exemption, unless the rendering health care provider:
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            (a)    knowingly and materially misrepresented the health care service in a request for payment
  submitted to the utilization review organization with the specific intent to deceive and obtain an unlawful
  payment from the utilization review organization; or
            (b)    failed to substantially perform the health care service.
            (8)    A utilization review organization may only revoke an exemption at the end of the 12-month
  period if the utilization review organization:
            (a)    makes a determination that the health care provider would not have met the 80% approval
  criteria based on a retrospective review of the claims for the specific service for which the exemption applies for
  the previous 3 months or a longer period if needed to reach a minimum of 10 claims for review;
            (b)    provides the health care provider with the information it relied on in making its determination to
  revoke the exemption; and
            (c)    provides the health care provider a plain language explanation of how to appeal the decision.
            (9)    An exemption remains in effect until the 30th day after the date the utilization review
  organization notifies the health care provider of its determination to revoke the exemption or, if the health care
  provider appeals the determination, the 5th day after the revocation is upheld on appeal.
            (10)   A determination to revoke or deny an exemption must be made by a licensed health care
  provider. The provider must be of the same or similar specialty as the health care provider being considered for
  an exemption and have experience in providing the service for which the potential exemption applies.
            (11)   Nothing in this section requires a utilization review organization to evaluate an existing
  exemption or prevents a utilization review organization from establishing a longer exemption period.
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            NEW SECTION. Section 3. Qualifications of individuals making or reviewing adverse
  determinations. (1) A utilization review organization shall ensure that only a physician makes an adverse
  determination pursuant to 33-32-211 or 33-32-212 or reviews a grievance as provided under 33-32-308 or 33-
  32-309.
            (2)    A physician making an adverse determination or reviewing a grievance must:
            (a)    possess a current and valid nonrestricted license to practice medicine;
            (b)    be of the same specialty as the health care provider who typically manages the medical
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68th Legislature 2023                                                                                             LC 4073
  condition or disease or provides the health care service involved in the request;
          (c)      have experience treating patients with the medical condition or disease for which the health
  care service is being requested; and
          (d)      make the adverse determination under the clinical direction of one of the utilization review
  organization's medical directors who is responsible for the provision of health care services provided to covered
  persons in the state. Any medical director used for this purpose must be a physician licensed in the state.
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          NEW SECTION. Section 4. When certification is deemed. The failure of a utilization review
  organization to comply with the deadlines and other requirements of this chapter results in the automatic
  deeming of certification for any health care service under review.
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          Section 5. Section 33-32-102, MCA, is amended to read:
          "33-32-102. Definitions. As used in this chapter, the following definitions apply:
          (1)      "Adverse determination", except as provided in 33-32-402, means:
          (a)      a determination by a health insurance issuer or its designated utilization review organization
  that, based on the provided information and after application of any utilization review technique, a requested
  benefit under the health insurance issuer's health plan is denied, reduced, or terminated or that payment is not
  made in whole or in part for the requested benefit because the requested benefit does not meet the health
  insurance issuer's requirement for medical necessity, appropriateness, health care setting, level of care, or level
  of effectiveness or is determined to be experimental or investigational;
          (b)      a denial, reduction, termination, or failure to provide or make payment in whole or in part for a
  requested benefit based on a determination by a health insurance issuer or its designated utilization review
  organization of a person's eligibility to participate in the health insurance issuer's health plan;
          (c)      any prospective review or retrospective review of a benefit determination that denies, reduces,
  or terminates or fails to provide or make payment in whole or in part for a benefit; or
          (d)      a rescission of coverage determination.
          (2)      "Ambulatory review" means a utilization review of health care services performed or provided in
  an outpatient setting.
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68th Legislature 2023                                                                                               LC 4073
             (3)    "Authorized representative" means:
             (a)    a person to whom a covered person has given express written consent to represent the
  covered person;
             (b)    a person authorized by law to provided substituted consent for a covered person; or
             (c)    a family member of the covered person, or the covered person's treating health care provider,
  only if the covered person is unable to provide consent.
             (4)    "Case management" means a coordinated set of activities conducted for individual patient
  management of serious, complicated, protracted, or otherwise complex health conditions.
             (5)    "Certification" means a determination by a health insurance issuer or its designated utilization
  review organization that an admission, availability of care, continued stay, or other health care service has been
  reviewed and, based on the information provided, satisfies the health insurance issuer's requirements for
  medical necessity, appropriateness, health care setting, level of care, and level of effectiveness.
             (6)    "Clinical peer" means a physician or other health care provider who:
             (a)    holds a nonrestricted license in a state of the United States; and
             (b)    is trained or works in the same or a similar specialty to the specialty that typically manages the
  medical condition, procedure, or treatment under review.
             (7)    "Clinical review criteria" means the written policies, written screening procedures, decision
  abstracts, determination rules, clinical and medical protocols, practice guidelines, or any other criteria or
  rationale used by a health insurance issuer or its designated utilization review organization to determine the
  medical necessity of health care services.
             (8)    "Concurrent review" means a utilization review conducted during a patient's stay or course of
  treatment in a facility, the office of a health care professional, or another inpatient or outpatient health care
  setting.
             (9)    "Cost sharing" means the share of costs that a covered member pays under the health
  insurance issuer's health plan, including maximum out-of-pocket, deductibles, coinsurance, copayments, or
  similar charges, but does not include premiums, balance billing amounts for out-of-network providers, or the
  cost of noncovered services.
             (10)   "Covered benefits" or "benefits" means those health care services to which a covered person is
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  entitled under the terms of a health plan.
          (11)     "Covered person" means a policyholder, a certificate holder, a member, a subscriber, an
  enrollee, or another individual participating in a health plan.
          (12)     "Discharge planning" means the formal process for determining, prior to discharge from a
  facility, the coordination and management of the care that a patient receives after discharge from a facility.
          (13)     "Emergency medical condition" has the meaning provided in 33-36-103.
          (14)     "Emergency services" has the meaning provided in 33-36-103.
          (15)     "External review" describes the set of procedures provided for in Title 33, chapter 32, part 4.
          (16)     "Final adverse determination" means an adverse determination involving a covered benefit that
  has been upheld by a health insurance issuer or its designated utilization review organization at the completion
  of the health insurance issuer's internal grievance process as provided in Title 33, chapter 32, part 3.
          (17)     "Grievance" means a written complaint or an oral complaint if the complaint involves an urgent
  care request submitted by or on behalf of a covered person regarding:
          (a)      availability, delivery, or quality of health care services, including a complaint regarding an
  adverse determination made pursuant to utilization review;
          (b)      claims payment, handling, or reimbursement for health care services; or
          (c)      matters pertaining to the contractual relationship between a covered person and a health
  insurance issuer.
          (18)     "Health care provider" or "provider" means a person, corporation, facility, or institution licensed
  by the state to provide, or otherwise lawfully providing, health care services, including but not limited to:
          (a)      a physician, physician assistant, advanced practice registered nurse, health care facility as
  defined in 50-5-101, osteopath, dentist, nurse, optometrist, chiropractor, podiatrist, physical therapist,
  psychologist, licensed social worker, speech pathologist, audiologist, licensed addiction counselor, or licensed
  professional counselor; and
          (b)      an officer, employee, or agent of a person described in subsection (18)(a) acting in the course
  and scope of employment.
          (19)     "Health care services" means services for the diagnosis, prevention, treatment, cure, or relief of
  a health condition, illness, injury, or disease, including the provision of pharmaceutical products or services or
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  durable medical equipment.
          (20)       "Health insurance issuer" has the meaning provided in 33-22-140.
          (21)       "Medical necessity" means health care services that a health care provider exercising prudent
  clinical judgment would provide to a patient for the purpose of preventing, evaluating, diagnosing, treating,
  curing, or relieving a health condition, illness, injury, or disease or its symptoms and that are:
          (a)        in accordance with generally accepted standards of practice;
          (b)        clinically appropriate in terms of type, frequency, extent, site, and duration and are considered
  effective for the patient's illness, injury, or disease; and
          (c)        not primarily for the convenience of the patient or health care provider and not more costly than
  an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic
  results as to the diagnosis or treatment of the patient's illness, injury, or disease.
          (22)       "Network" means the group of participating providers providing services to a managed care
  plan.
          (23)       "Participating provider" means a health