PRINTER'S NO. 1611
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1293
Session of
2017
INTRODUCED BY M. QUINN, BAKER, BERNSTINE, BOBACK, CHARLTON,
CORR, COX, DAVIS, DeLUCA, DiGIROLAMO, DRISCOLL, FEE, FRANKEL,
GILLEN, GODSHALL, A. HARRIS, HELM, PHILLIPS-HILL, JOZWIAK,
KNOWLES, LEWIS, LONGIETTI, MACKENZIE, MALONEY, MASSER,
MILLARD, MUSTIO, NESBIT, PETRI, RADER, ROZZI, RYAN, SANTORA,
SAYLOR, SOLOMON, STURLA, WARD, WARREN, WATSON, WHEELAND AND
SIMS, MAY 1, 2017
REFERRED TO COMMITTEE ON INSURANCE, MAY 1, 2017
AN ACT
Providing for preauthorizations conducted by utilization review
entities relating to health care services.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Utilization
Review Entity Preauthorization Act.
Section 2. Declaration of policy.
The General Assembly finds and declares as follows:
(1) The health care practitioner-patient relationship is
paramount and should not be subject to third-party intrusion.
(2) Preauthorization programs should not be permitted to
hinder patient care or intrude on the practice of medicine.
(3) Preauthorization programs must include the use of
independently developed, evidence-based and, when necessary
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or available, appropriate use criteria or written clinical
criteria.
(4) Preauthorization programs must include reviews by
appropriate physicians to ensure a fair process for patients.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Adverse determination." A decision by a utilization review
entity that:
(1) The health care services furnished or proposed to be
furnished to a subscriber are not medically necessary or are
experimental or investigational.
(2) Denies, reduces or terminates benefit coverage.
The term does not include a decision to deny, reduce or
terminate services which are not covered for reasons other than
their medical necessity or experimental or investigational
nature.
"Appeal." A formal request, either orally or in writing, to
reconsider a determination not to preauthorize a health care
service.
"Appeals procedure." A formal process that permits a
subscriber, attending physician or his designee, facility or
health care practitioner on a subscriber's behalf, to appeal an
adverse determination rendered by the utilization review entity
or its designee utilization review entity or agent.
"Appropriate use criteria." Criteria that:
(1) defines when and how often it is medically necessary
and appropriate to perform a specific test or procedure; and
(2) is derived from documents from professional
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societies that are evidence-based or, when evidence is
conflicting or lacking, from expert consensus panels and
which documents include published clinical guidelines for
appropriate use for the specific clinical scenario under
consideration.
"Authorization." A determination by a utilization review
entity that:
(1) a health care service has been reviewed and, based
on the information provided, satisfies the utilization review
entity's requirements for medical necessity and
appropriateness; and
(2) payment will be made for the health care service.
"Clinical criteria." The written policies, written screening
procedures, determination rules, determination abstracts,
clinical protocols, practice guidelines and medical protocols
used by a utilization review entity to determine the necessity
and appropriateness of health care services.
"Emergency health care services." Health care services that
are provided in a hospital emergency facility after the sudden
onset of a medical condition that manifests itself by symptoms
of sufficient severity, including severe pain, that the absence
of immediate medical attention could reasonably be expected by a
prudent layperson, who possesses an average knowledge of health
and medicine, to result in:
(1) placing the patient's health in serious jeopardy;
(2) serious impairment to bodily function; or
(3) serious dysfunction of a bodily organ or part.
"Expedited appeal." A formal request, either orally or in
writing, to reconsider an adverse determination not to authorize
emergency health care services or urgent health care services.
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"Final adverse determination." An adverse determination that
has been upheld by a utilization review entity at the completion
of the utilization review entity's appeals process.
"Health care practitioner." As defined in section 103 of the
act of July 19, 1979 (P.L.130, No.48), known as the Health Care
Facilities Act.
"Health care service." Health care procedures, treatments or
services provided by or within:
(1) a facility licensed in this Commonwealth;
(2) a doctor of medicine or a doctor of osteopathy; or
(3) the scope of practice for which a health care
practitioner is licensed in this Commonwealth.
The term includes the provision of pharmaceutical products or
services or durable medical equipment.
"Medically necessary health care services." Health care
services that a prudent health care practitioner would provide
to a patient for the purpose of preventing, diagnosing or
treating an illness, injury, disease or its symptoms in a manner
that is:
(1) in accordance with generally accepted standards of
medical practice;
(2) clinically appropriate in terms of type, frequency,
extent, site and duration; and
(3) not primarily for the economic benefit of the health
plans and purchasers or for the convenience of the patient,
treating physician or other health care practitioner.
"NCPDP SCRIPT Standard." The National Council for
Prescription Drug 10 Programs SCRIPT Standard Version 201310,
the most recent standard adopted by the Department of Health and
Human Services or a subsequently released version, provided that
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the new version of the standard is backwards-compatible to the
current version adopted by the Department of Health and Human
Services.
"Preauthorization." The process by which a utilization
review entity determines the medical necessity or medical
appropriateness of otherwise covered health care services prior
to authorizing coverage and the rendering of the health care
services, including, but not limited to, preadmission review,
pretreatment review, utilization and case management. The term
includes a health insurer's or utilization review entity's
requirement that a subscriber or health care practitioner notify
the health insurer or utilization review agent prior to
providing a health care service.
"Retrospective review." The review of the medical necessity
and appropriateness of health care services provided to a
subscriber, the performance of which review occurs for the first
time subsequent to the completion of the health care services.
"Subscriber." An individual who is eligible to receive
health care benefits by a health insurer pursuant to a health
plan or other health insurance coverage. The term includes such
individual's legally authorized representative.
"Urgent health care service." A health care service with
respect to which the application of the time periods for making
a nonexpedited preauthorization, in the opinion of a health care
practitioner with knowledge of a subscriber's medical condition
could:
(1) seriously jeopardize the life or health of the
subscriber or the ability of the subscriber to regain maximum
function; or
(2) subject the subscriber to severe pain that cannot be
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adequately managed without the care or treatment that is the
subject of the utilization review.
"Utilization review entity." An individual or entity that
performs preauthorization for one or more of the following
entities:
(1) an employer with employees in this Commonwealth who
are covered under a health benefit plan or health insurance
policy;
(2) an insurer that writes health insurance policies;
(3) a preferred provider organization or health
maintenance organization; and
(4) any other individual or entity that provides, offers
to provide or administers hospital, outpatient, medical or
other health benefits to an individual treated by a health
care practitioner in this Commonwealth under a policy, plan
or contract.
The term includes a health insurer if the health insurer
performs preauthorization.
Section 4. Basis, development and use.
(a) Electronic communications network required.--No later
than 180 days after the effective date of this act, prior
authorization requests shall be accessible to health care
practitioners and accepted by insurers, pharmacy benefits
managers and utilization review organizations electronically
through a secure electronic transmission using the NCPDP SCRIPT
Standard electronic prior authorization transactions. Facsimile,
proprietary payer portals and electronic forms shall not be
considered electronic transmissions.
(b) Preauthorization restrictions to be based on written
clinical criteria.--Any restrictions that a utilization review
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entity places on the preauthorization of health care services
shall be:
(1) Based on the medical necessity or appropriateness of
those services and on written clinical criteria.
(2) Applied consistently.
(c) Adverse determinations and final adverse determinations
to be based on written clinical criteria.--Adverse
determinations and final adverse determinations made by a
utilization review agent must be based on written clinical
criteria.
(d) Lack of evidence-based and expert consensus standards.--
If no independently developed, evidence-based standards derived
from documents from professional societies, or when evidence-
based standards are conflicting or lacking from expert consensus
panels, exist for a particular health care item, service,
pharmaceutical product, test or imaging procedure, the
utilization review entity may not deny coverage of the health
care item, service, pharmaceutical product, test or imaging
procedure based solely on the grounds that the health care item,
service, pharmaceutical product, test or imaging procedure does
not meet an evidence-based standard.
(e) The basis of clinical criteria and expert consensus.--
Written clinical criteria shall:
(1) Be based on nationally recognized standards.
(2) Be developed in accordance with the current
standards of national accreditation entities.
(3) Reflect community standards of care.
(4) Ensure quality of care and access to needed health
care services.
(5) Be evidence-based or based on generally accepted
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expert consensus standards.
(6) Be sufficiently flexible to allow deviations from
norms when justified on case-by-case basis.
(7) Be evaluated and updated if necessary at least
annually.
(f) Preauthorization not required.--Preauthorization shall
not be required:
(1) where a medication or procedure prescribed for a
patient is customary and properly indicated or is a treatment
for the clinical indication as supported by peer-reviewed
medical publications; or
(2) for a patient currently managed with an established
treatment regimen.
(g) Electronic standards for prior authorization.--No later
than 180 days after the effective date of this section, the
payer shall accept and respond to prior authorization requests
under the pharmacy benefit through a secure electronic
transmission using the NCPDP SCRIPT Standard ePA transactions.
(h) Appropriate use of step therapy protocols.--A
utilization review entity shall not:
(1) Require a health care practitioner offering services
to a subscriber to participate in a step 1 therapy protocol
if the practitioner deems that the step 1 therapy protocol is
not in the patient's best interests.
(2) Require that a health care practitioner first obtain
a waiver, exception or other override when deeming a step 1
therapy protocol not to be in a patient's best interests.
(3) Sanction or otherwise penalize a health care
practitioner for recommending or issuing a prescription,
performing or recommending a procedure or performing a test
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that may conflict with the step 1 therapy protocol of the
health insurer or health insurance plan.
Section 5. Mandatory disclosure and review of preauthorization
requirements and restrictions.
(a) Disclosure.--A utilization review entity shall post to
its publicly accessible Internet website:
(1) A current list of services and supplies requiring
preauthorization.
(2) Written clinical criteria for preauthorization
decisions.
(b) Specific notice to contracted health care
practitioners.--If a utilization review entity intends to
implement a new preauthorization requirement or restriction or
to amend an existing requirement or restriction, the utilization
review entity shall provide contracted health care practitioners
written notice of the new or amended requirement or amendment
not less than 60 days before the requirement or restriction is
implemented.
(c) Length of prior authorization.--A prior authorization
shall be valid for one year from the date the health care
practitioner receives the prior authorization.
Section 6. Personnel qualified to make preauthorizations and
adverse determinations.
A utilization review entity shall ensure that:
(1) Preauthorizations are made by a qualified licensed
health care practitioner.
(2) Adverse determinations are made by a physician. The
reviewing physician must possess a current and valid
nonrestricted license to practice medicine in this
Commonwealth.
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Section 7. Utilization review entity duties in
preauthorizations or nonurgent circumstances.
(a) Deadline.--If a health insurer requires preauthorization
of a health care item, service, pharmaceutical product, test or
imaging procedure, the utilization review entity shall make a
preauthorization or adverse determination and notify the
subscriber and the subscriber's health care practitioner within
two business days of obtaining all necessary information to make
the preauthorization or adverse determination.
(b) Requirements specific to notices of preauthorization.--
Notifications of preauthorizations shall be accompanied by a
unique preauthorization number and indicate:
(1) The specific health care services preauthorized.
(2) The next date for review.
(3) The total number of days approved.
(4) The date of admission or initiation of services, if
applicable.
(c) Binding nature of prior approvals.--Neither the
utilization review entity nor the payer or health insurer that
has retained the utilization review entity may retroactively
deny coverage for emergency or nonemergency care that had been
preauthorized when it was provided, if the information provided
was accurate.
(d) Consultation prior to issuing an adverse
determination.--
(1) If a utilization review entity questions the medical
necessity of a health care service, the utilization review
entity shall notify the subscriber's health care practitioner
that medical necessity is being questioned prior to issuing
an adverse determination.
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(2) The subscriber's health care practitioner and the
subscriber's designee shall have the right to discuss the
medical necessity of the health care service with the
utilization review physician.
Section 8. Utilization review entity duties relating to urgent
health care services.
(a) Deadline.--A utilization review entity shall render a
preauthorization or adverse determination concerning urgent care
services and notify the subscriber's health care practitioner of
the preauthorization or adverse determination not later than one
business day after receiving all information needed to complete
the review of the requested health care services.
(b) Availability of physician rendering adverse
determination to subscriber's health care practitioner.--
(1) If a utilization review entity questions the medical
necessity of an urgent health care service, the utilization
review entity shall notify the subscriber's health care
practitioner that medical necessity is being questioned.
(2) Prior to issuing an adverse determination, the
utilization review physician shall be available to discuss
the medical necessity of the urgent health care services with
the subscriber's health care practitioner or the subscriber's
designee.
Section 9. Utilization review entity duties concerning
emergency health care services.
(a) A utilization review entity cannot require
preauthorization.--No utilization review entity may require
preauthorization for prehospital transportation or treatment for
emergency health care services, including postevaluation and
poststabilization services.
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(b) Restrictions concerning time limits within which
notification of inpatient admissions may be required.--A
utilization review entity shall allow a subscriber and the
subscriber's health care practitioner a minimum of one business
day following an emergency admission, service or procedure to
notify the utilization review entity of the admission, service
or procedure.
Section 10. Notifications of adverse determinations.
Written notice of adverse determinations shall be provided to
the subscriber and the subscriber's health care practitioner
which shall include instructions concerning how an appeal may be
performed.
Section 11. Reviews of appeals.
(a) Expedited appeals.--
(1) A subscriber or the subscriber's health care
practitioner may request an expedited appeal of an adverse
determination via telephone, facsimile, electronic mail or
other expeditious method.
(2) Within one business day of receiving an expedited
appeal and all information necessary to decide the appeal,
the utilization review entity shall provide the subscriber
and the subscriber's health care practitioner written
confirmation of the expedited review determination.
(b) Physicians to review appeals.--An appeal shall be
reviewed only by a physician who is:
(1) Board certified in the same specialty as a health
care practitioner who typically manages the medical condition
or disease.
(2) Currently in active practice in the same specialty
as the health care practitioner who typically manages the
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medical condition or disease.
(3) Knowledgeable of and has experience providing the
health care services under appeal.
(4) Not employed by a utilization review entity, under
contract with the utilization review entity, other than to
participate in one or more of the utilization review entity's
health care provider networks or to perform reviews of
appeals, or otherwise have any financial interest in the
outcome of the appeal.
(5) Not involved in making the adverse determination.
(6) Familiar with all known clinical aspects of the
health care services under review, including, but not limited
to, all pertinent medical records provided to the
utilization review entity by the subscriber's health care
practitioner and any relevant records provided to the
utilization review entity by a health care facility.
(c) Procedures.--The utilization review entity shall ensure
that appeal procedures satisfy the following requirements:
(1) (i) The subscriber and the subscriber's health care
practitioner may challenge the adverse determination and
have the right to appear in person before the physician
who reviews the adverse determination.
(ii) The utilization review entity shall provide the
subscriber and the subscriber's health care practitioner
with written notice of the time and place concerning
where the review meeting will take place. Notice shall be
given to the subscriber's health care practitioner at
least 15 business days in advance of the review meeting.
(iii) If the subscriber or health care practitioner
cannot appear in person, the utilization review entity
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shall offer the subscriber or health care practitioner
the opportunity to communicate with the reviewing
physician, at the utilization review entity's expense, by
conference call, video conferencing or other available
technology.
(2) The physician performing the review of the appeal
shall consider all information, documentation or other
material submitted in connection with the appeal without
regard to whether the information was considered in making
the adverse determination.
(d) Deadlines.--
(1) A utilization review entity shall decide an
expedited appeal and notify the subscriber and health care
practitioner of the determination within one business day
after receiving a notice of expedited appeal by the
subscriber and health care practitioner and all information
necessary to decide the appeal.
(2) A utilization review entity shall issue a written
determination concerning a nonexpedited appeal not later than
20 days after receiving a notice of appeal from a subscriber
or health care practitioner and all information necessary to
decide the appeal.
(e) Notifications of final adverse determinations.--Written
notice of final adverse determinations shall be provided to the
subscriber and the subscriber's health care practitioner.
Section 12. Continuation of coverage pending conclusion of the
appeal procedure.
If the appeal of an adverse determination concerns ongoing
health care services that are being provided pursuant to an
initially authorized admission or course of treatment, the
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health care services shall be continued without liability to the
subscriber or the subscriber's health care practitioner until:
(1) The subscriber and the subscriber's health care
practitioner received a notice of final adverse determination
satisfying the requirements of a determination under section
(11)(e).
(2) The subscriber and the subscriber's health care
practitioner receive notice of a decision reached by an
external review concerning the medical necessity of the
health care services that were the subject of the final
adverse determination, if the subscriber or the subscriber's
health care practitioner appeals a final adverse
determination to an external review proceeding.
Section 13. Limitation on requests for medical records.
When performing preauthorization, a utilization review agent
may only request copies of medical records when a difficulty
develops in determining the medical necessity or appropriateness
of a health care service. In that case, the utilization review
agent may only request the necessary and relevant sections of
the medical record.
Section 14. Preauthorization by secondary payers.
In the event that a subscriber is covered by more than one
health plan that requires preauthorization, the following
provisions shall apply:
(1) The primary health plan may require the subscriber
to comply with the primary health plan's preauthorization
requirements.
(2) If the secondary payer also requires
preauthorization of the health care services, the secondary
payer may not refuse payment for those health care services
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solely on the basis that the secondary payer did not
preauthorize the health care services.
Section 15. No cost to the subscriber or the subscriber's
health care practitioner.
An appeal of an adverse determination or external review of a
final adverse determination shall be provided without charge to
the subscriber or health care practitioner.
Section 16. Effect of noncompliance.
Failure by a utilization review entity to comply with the
deadlines and other requirements specified in this act shall
result in health care services subject to review to be deemed
preauthorized.
Section 17. Uniform preauthorization form.
(a) Panel to be convened.--Within three months of the
effective date of this section, the Insurance Department shall
convene a panel. The panel shall develop a uniform
preauthorization form that all health care practitioners in this
Commonwealth shall use to request preauthorization and that all
health insurers shall accept as sufficient to request
preauthorization of health care services.
(b) Membership of panel.--The panel shall consist of not
fewer than 10 persons. Equal representation shall be afforded to
the physician, health care facility, employer, health insurer
and consumer protection communities within this Commonwealth.
(c) Development of form.--Within one year of the effective
date of this section, the panel shall conclude development of
the uniform preauthorization form and the Insurance Department
shall make the uniform preauthorization form available to health
care practitioners in this Commonwealth and utilization review
agents.
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Section 18. Exemption.
(a) Preauthorization.--When appropriate use criteria exists
for a particular health care service, the health care service
shall be exempt from preauthorization if the provision of the
health care service comports with applicable appropriate use
criteria.
(b) Retrospective review.--A health care service that has
been provided in accordance with applicable appropriate use
criteria shall not be subject to retrospective review.
Section 19. Effective date.
This act shall take effect in 60 days.
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