23.1108.01000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2389
of North Dakota
Introduced by
Senators Vedaa, J. Roers
Representative Nelson
1 A BILL for an Act to create and enact chapter 26.1-36.11 of the North Dakota Century Code,
2 relating to prior authorization for health insurance.
3 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
4 SECTION 1. Chapter 26.1-36.11 of the North Dakota Century Code is created and enacted
5 as follows:
6 26.1-36.11-01. Definitions.
7 For the purpose of this chapter, unless the context otherwise requires:
8 1. "Adverse determination" means a decision by a utilization review organization that the
9 health care services furnished or proposed to be furnished to an enrollee are not
10 medically necessary or are experimental or investigational; and benefit coverage is
11 therefore denied, reduced, or terminated. A decision to deny, reduce, or terminate a
12 service not covered for reasons other than medical necessity or the experimental or
13 investigational nature of the service is not an "adverse determination" for purposes of
14 this chapter.
15 2. "Appeal" means a formal request, either orally or in writing, to reconsider an adverse
16 determination regarding an admission, extension of stay, or other health care service.
17 3. "Authorization" means a determination by a utilization review organization that a health
18 care service has been reviewed and, based on the information provided, satisfies the
19 utilization review organization's requirements for medical necessity and
20 appropriateness and that payment will be made for that health care service.
21 4. "Clinical criteria" means the written policies, written screening procedures, drug
22 formularies or lists of covered drugs, determination rules, determination abstracts,
23 clinical protocols, practice guidelines, medical protocols, and any other criteria or
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1 rationale used by the utilization review organization to determine the necessity and
2 appropriateness of health care services.
3 5. "Emergency medical condition" means a medical condition that manifests itself by
4 symptoms of sufficient severity which may include severe pain and that a prudent
5 layperson who possesses an average knowledge of health and medicine could
6 reasonably expect the absence of medical attention to result in placing the individual's
7 health in jeopardy, serious impairment of a bodily function, or serious dysfunction of
8 any body part.
9 6. "Emergency health care services" means health care services, supplies, or treatments
10 furnished or required to screen, evaluate, and treat an emergency medical condition.
11 7. "Enrollee" means an individual who has contracted for or who participates in coverage
12 under a policy for that individual or the individual's eligible dependents.
13 8. "Health care services" means health care procedures, treatments, or services
14 provided by a licensed facility or provided by a licensed physician or within the scope
15 of practice for which a health care professional is licensed. The term also includes the
16 provision of pharmaceutical products or services or durable medical equipment.
17 9. "Medically necessary" as the term applies to health care services means health care
18 services a prudent physician would provide to a patient for the purpose of preventing,
19 diagnosing, or treating an illness, injury, disease, or its symptoms in a manner that is:
20 a. In accordance with generally accepted standards of medical practice;
21 b. Clinically appropriate in terms of type, frequency, extent, site, and duration; and
22 c. Not primarily for the economic benefit of the health plans and purchasers or for
23 the convenience of the patient, treating physician, or other health care provider.
24 10. "Medication assisted treatment" means the use of medications, commonly in
25 combination with counseling and behavioral therapies, to provide a comprehensive
26 approach to the treatment of substance use disorders. United States food and drug
27 administration-approved medications used to treat opioid addiction include methadone
28 and buprenorphine, alone or in combination with naloxone and extended-release
29 injectable naltrexone. Types of behavioral therapies include individual therapy, group
30 counseling, family behavior therapy, motivational incentives, and other modalities.
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1 11. "Policy" means an insurance policy, a health maintenance organization contract, a
2 health service corporation contract, an employee welfare benefits plan, a hospital or a
3 medical services plan, or any other benefits program providing payment,
4 reimbursement, or indemnification for health care costs. The term does not include
5 medical assistance or public employees retirement system health benefits.
6 12. "Prior authorization" means the review conducted before the delivery of a health care
7 service, including an outpatient health care service, to evaluate the necessity,
8 appropriateness, and efficacy of the use of health care services, procedures, and
9 facilities, by a person other than the attending health care professional, for the
10 purpose of determining the medical necessity of the health care services or admission.
11 The term includes a review conducted after the admission of the enrollee and in
12 situations in which the enrollee is unconscious or otherwise unable to provide advance
13 notification. The term does not include a referral or participation in a referral process
14 by a participating provider unless the provider is acting as a utilization review
15 organization.
16 13. "Urgent health care service" means a health care service for which, in the opinion of a
17 physician with knowledge of the enrollee's medical condition, the application of the
18 time periods for making a non-expedited prior authorization:
19 a. Could seriously jeopardize the life or health of the enrollee or the ability of the
20 enrollee to regain maximum function; or
21 b. Could subject the enrollee to severe pain that cannot be managed adequately
22 without the care or treatment that is the subject of the prior authorization review.
23 14. "Utilization review organization" means a person that performs prior authorization for
24 one or more of the following entities:
25 a. An employer with employees in the state who are covered under a policy;
26 b. An insurer that writes policies;
27 c. A preferred provider organization or health maintenance organization; and
28 d. Any other person that provides, offers to provide, or administers hospital,
29 outpatient, medical, prescription drug, or other health benefits to an individual
30 treated by a health care professional in the state under a policy.
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1 26.1-36.11-02. Disclosure and review of prior authorization requirements.
2 1. A utilization review organization shall make any prior authorization requirements and
3 restrictions readily accessible on the organization's website to enrollees, health care
4 professionals, and the general public. Requirements include the written clinical criteria.
5 Requirements must be described in detail using plain and ordinary language
6 comprehensible by a layperson.
7 2. If a utilization review organization intends to implement a new prior authorization
8 requirement or restriction, or amend an existing requirement or restriction, the
9 utilization review organization shall:
10 a. Ensure the new or amended requirement is not implemented unless the
11 utilization review organization's website has been updated to reflect the new or
12 amended requirement or restriction.
13 b. Provide contracted health care providers of enrollees written notice of the new or
14 amended requirement or amendment no fewer than sixty days before the
15 requirement or restriction is implemented.
16 26.1-36.11-03. Personnel qualified to make adverse determinations.
17 A utilization review organization shall ensure all adverse determinations are made by a
18 licensed physician. The physician:
19 1. Shall posses a valid nonrestricted license to practice medicine;
20 2. Must be of the same or similar specialty as the physician who typically manages the
21 medical condition or illness or provides the health care service involved in the request;
22 3. Must have experience treating patients with the medical condition or illness for which
23 the health care service is being requested; and
24 4. Shall make the adverse determination under the clinical direction of one of the
25 utilization review organization's medical directors who is responsible for the health
26 care services provided to enrollees.
27 26.1-36.11-04. Consultation before issuing an adverse determination.
28 If a utilization review organization is questioning the medical necessity of a health care
29 service, the utilization review organization shall notify the enrollee's physician that medical
30 necessity is being questioned. Before issuing an adverse determination, the enrollee's physician
31 must have the opportunity to discuss the medical necessity of the health care service on the
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1 telephone with the physician who will be responsible for determining authorization of the health
2 care service under review.
3 26.1-36.11-05. Requirements applicable to the physician who can review appeals.
4 A utilization review organization shall ensure all appeals are reviewed by a physician. The
5 reviewing physician:
6 1. Shall possess a valid nonrestricted license to practice medicine;
7 2. Must be in active practice in the same or similar specialty as the physician who
8 typically manages the medical condition or disease for at least five consecutive years;
9 3. Must be knowledgeable of, and have experience providing, the health care services
10 under appeal;
11 4. May not be employed by a utilization review organization or be under contract with a
12 utilization review organization other than to participate in one or more of the utilization
13 review organization's health care provider networks or to perform reviews of appeals,
14 or otherwise have any financial interest in the outcome of the appeal;
15 5. May not have been directly involved in making the adverse determination; and
16 6. Shall consider all known clinical aspects of the health care service under review,
17 including a review of all pertinent medical records provided to the utilization review
18 organization by the enrollee's health care provider, any relevant records provided to
19 the utilization review organization by a health care facility, and any medical literature
20 provided to the utilization review organization by the health care provider.
21 26.1-36.11-06. Prior authorization - Nonurgent circumstances.
22 1. If a utilization review organization requires prior authorization of a health care service,
23 the utilization review organization shall make a prior authorization or adverse
24 determination and notify the enrollee and the enrollee's health care provider of the
25 prior authorization or adverse determination within two business days of obtaining all
26 necessary information to make the prior authorization or adverse determination. For
27 purposes of this subsection, "necessary information" includes the results of any face-
28 to-face clinical evaluation or second opinion that may be required.
29 2. A utilization review organization shall allow an enrollee and the enrollee's health care
30 provider fourteen business days following a nonurgent circumstance or provision of
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1 medical condition for the enrollee or health care provider to notify the utilization review
2 organization of the nonurgent circumstance or provision of health care services.
3 26.1-36.11-07. Prior authorization - Urgent health care services.
4 A utilization review organization shall render a prior authorization or adverse determination
5 concerning urgent health care services and notify the enrollee and the enrollee's health care
6 provider of that prior authorization or adverse determination not later than twenty-four hours
7 after receiving all information needed to complete the review of the requested health care
8 services.
9 26.1-36.11-08. Prior authorization - Emergency medical condition.
10 1. A utilization review organization may not require prior authorization for prehospital
11 transportation or for the provision of emergency health care services for an emergency
12 medical condition.
13 2. A utilization review organization shall allow an enrollee and the enrollee's health care
14 provider a minimum of two business days following an emergency admission or
15 provision of emergency health care services for an emergency medical condition for
16 the enrollee or health care provider to notify the utilization review organization of the
17 admission or provision of health care services.
18 3. A utilization review organization shall cover emergency health care services for an
19 emergency medical condition necessary to screen and stabilize an enrollee. If, within
20 seventy-two hours of an enrollee's admission, a health care provider certifies in writing
21 to a utilization review organization that the enrollee's condition required emergency
22 health care services for an emergency medical condition, that certification will create a
23 presumption the emergency health care services for the emergency medical condition
24 were medically necessary. The presumption may be rebutted only if the utilization
25 review organization can establish, with clear and convincing evidence, that the
26 emergency health care services for the emergency medical condition were not
27 medically necessary.
28 4. The medical necessity or appropriateness of emergency health care services for an
29 emergency medical condition may not be based on whether those services were
30 provided by participating or nonparticipating providers. Restrictions on coverage of
31 emergency health care services for an emergency medical condition provided by
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1 nonparticipating providers may not be greater than restrictions that apply when those
2 services are provided by participating providers.
3 5. If an enrollee receives an emergency health care service that requires immediate
4 post-evaluation or post-stabilization services, a utilization review organization shall
5 make an authorization determination within two business days of receiving a request;
6 if the authorization determination is not made within two business days, the services
7 must be deemed approved.
8 26.1-36.11-09. No prior authorization for medication assisted treatment.
9 A utilization review organization may not require prior authorization for the provision of
10 medication assisted treatment for the treatment of opioid use disorder.
11 26.1-36.11-10. Retrospective denial.
12 A utilization review organization may not revoke, limit, condition, or restrict a prior
13 authorization if care is provided within forty-five working days from the date the health care
14 provider received the prior authorization.
15 26.1-36.11-11. Length of prior authorization.
16 A prior authorization must be valid for six months after the date the health care provider
17 receives the prior authorization.
18 26.1-36.11-12. Chronic or long-term care conditions.
19 If a utilization review organization requires a prior authorization for a health care service for
20 the treatment of a chronic or long-term care condition, the prior authorization must remain valid
21 for twelve months.
22 26.1-36.11-13. Continuity of care for enrollees.
23 1. On receipt of information documenting a prior authorization from the enrollee or from
24 the enrollee's health care provider, a utilization review organization shall honor a prior
25 authorization granted to an enrollee from a previous utilization review organization for<