Regular Session 2019-2020 Senate Bill 0920 P.N. 1428

PRINTER'S NO. 1428

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

920

Session of

2019

INTRODUCED BY PHILLIPS-HILL, COLLETT, MARTIN, YUDICHAK, BAKER,

MENSCH, STEFANO, J. WARD AND LEACH, DECEMBER 16, 2019

REFERRED TO BANKING AND INSURANCE, DECEMBER 16, 2019

AN ACT

Amending the act of May 17, 1921 (P.L.682, No.284), entitled "An

act relating to insurance; amending, revising, and

consolidating the law providing for the incorporation of

insurance companies, and the regulation, supervision, and

protection of home and foreign insurance companies, Lloyds

associations, reciprocal and inter-insurance exchanges, and

fire insurance rating bureaus, and the regulation and

supervision of insurance carried by such companies,

associations, and exchanges, including insurance carried by

the State Workmen's Insurance Fund; providing penalties; and

repealing existing laws," in quality health care

accountability and protection, further providing for

definitions and for responsibilities of managed care plans;

providing for preauthorization standards and for

preauthorization costs; further providing for continuity of

care; providing for step therapy protocols; further providing

for information for enrollees, for required disclosure and

for operational standards; providing for preauthorization and

adverse determinations, for appeals, for access requirements

in service areas, for uniform preauthorization form, for

preauthorization exemptions and for data collection and

reporting.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "emergency service," "health

care service," "prospective utilization review," "utilization

review" and "utilization review entity" in section 2102 of the

act of May 17, 1921 (P.L.682, No.284), known as The Insurance

Company Law of 1921, are amended and the section is amended by

adding definitions to read:

Section 2102. Definitions.--As used in this article, the

following words and phrases shall have the meanings given to

them in this section:

* * *

"Administrative defect." A deficiency, error, mistake or

missing information that serves as the basis of an adverse

determination issued by a utilization review entity as

justification to deny preauthorization.

"Adverse determination." The following apply:

(1) The term means a decision made by a utilization review

entity from a preauthorization request that:

(i) the health care services furnished or proposed to be

furnished to an insured:

(A) are not medically necessary;

(B) are experimental or investigational; or

(ii) denies, reduces or terminates benefit coverage.

(2) The term includes a decision to deny a step therapy

exception request under section 2118.

(3) 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 verbal or in writing, to

reconsider a determination to not authorize a health care

service prior to the service being provided. The term does not

apply to grievances filed under section 2161.

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"Appeal procedure." A formal process that permits an insured

or an attending physician or a designee, health care

practitioner or facility on an insured's behalf, to appeal an

adverse determination rendered by a utilization review entity or

its designee utilization review entity or agent.

"Appropriate use criteria." Criteria that:

(1) define when and how often it is medically necessary and

appropriate to perform a specific test or procedure; and

(2) are derived from documents of professional 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;

(2) the health care service reviewed is a covered service;

and

(3) payment will be made for the health care service.

* * *

"Clinical criteria." Policies, screening procedures,

determination rules, determination abstracts, clinical

protocols, practice guidelines and medical protocols set forth

in a written document available for peer-to-peer review by a

peer within the same profession and specialty and subject to

challenge by an insured when used as a basis to withhold

preauthorization, deny coverage or otherwise modify coverage

which are used by a utilization review entity to determine the

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medical necessity of health care services. 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 expert

consensus standards.

(6) Be sufficiently flexible to allow deviations from norms

when justified on a case-by-case basis.

(7) Be evaluated and updated if necessary at least annually.

"Clinical practice guidelines." A systematically developed

statement to assist in decision making by health care providers

and enrollees relating to appropriate healthcare for specific

clinical circumstances and conditions.

* * *

"Emergency service." Any health care service provided to an

enrollee, including prehospital transportation or treatment by

emergency medical services providers, after the sudden onset of

a medical condition that manifests itself by acute symptoms of

sufficient severity or severe pain such that a prudent layperson

who possesses an average knowledge of health and medicine could

reasonably expect the absence of immediate medical attention to

result in:

(1) placing the health of the enrollee or, with respect to a

pregnant woman, the health of the woman or her unborn child in

serious jeopardy;

(2) serious impairment to bodily functions; or

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(3) serious dysfunction of any bodily organ or part.

Emergency transportation and related emergency service provided

by a licensed ambulance service shall constitute an emergency

service.

* * *

"Expedited appeal." A formal request, either verbal or in

writing, to reconsider an adverse determination to not authorize

emergency health care services or urgent health care services.

"Final adverse determination." An adverse determination that

has been upheld by a utilization review entity at the completion

of the utilization review entity's internal appeals process.

* * *

"Health care service." Any [covered] treatment, admission,

procedure, test used to aid in diagnosis or the provision of the

applicable treatment, pharmaceutical products, medical supplies

and equipment or other services, including behavioral health[,

prescribed or otherwise] provided or proposed to be provided by

a health care provider to an enrollee under a managed care plan

contract.

"Insured." A policyholder, subscriber, covered person or

other individual who is entitled to receive health care services

or benefits from a health insurer under a health plan or other

health insurance coverage under a managed care plan. Where

applicable, the term includes an individual's legally authorized

representative.

* * *

"Medically necessary health care services." Health care

services that a prudent health care provider would provide to a

patient for the purpose of preventing, diagnosing or treating an

illness, injury or disease or its symptoms in a manner that is:

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(1) in accordance with generally accepted standards of

medical practice based on clinical criteria;

(2) appropriate in terms of type, frequency, extent, site

and duration pursuant to clinical criteria; 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 provider.

"Medication assisted treatment" or "MAT." The use of Food

and Drug Administration-approved medications, including

methadone, buprenorphine, alone or in combination with naloxone,

or naltrexone, in combination with counseling and behavioral

therapies, to provide a comprehensive approach to the treatment

of substance use disorders.

"NCPDP SCRIPT standard." The National Council for

Prescription Drug Programs SCRIPT Standard Version 201310, the

most recent standard adopted by the Department of Health and

Human Services or a subsequently related version, provided that

the new version is backwards-compatible to the current version

adopted by the Department of Health and Human Services. The

NCPDP SCRIPT standard applies to the provision of pharmaceutical

or pharmacological products.

"Nonurgent health care service." A health care service

provided to an enrollee that is not considered an emergency

service or an urgent health care service.

* * *

"Preauthorization." The process by which a utilization

review entity determines the medical necessity 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,

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utilization management and case management. The term includes a

health insurer's or utilization review entity's requirement that

an insured or health care practitioner notify the health insurer

or utilization review agent prior to providing a health care

service.

* * *

["Prospective utilization review." A review by a utilization

review entity of all reasonably necessary supporting information

that occurs prior to the delivery or provision of a health care

service and results in a decision to approve or deny payment for

the health care service.]

* * *

"Step therapy exception." A step therapy protocol that is

overridden in favor of immediate coverage of the health care

provider's selected prescription drug.

"Step therapy protocol." A protocol, policy or program that

establishes the specific sequence in which medically appropriate

prescription drugs for a specified medical condition are used by

a particular patient and are covered by a managed care plan.

"Urgent health care service." The following apply:

(1) A health care service deemed by a provider to require

expedited preauthorization review in the event that any delay

may jeopardize the life or health of the insured or that a delay

in treatment could:

(i) negatively affect the ability of the insured to regain

maximum function; or

(ii) subject the insured to severe pain that cannot be

adequately managed without receiving the care or treatment that

is the subject of the utilization review as quickly as possible.

(2) The term does not include an emergency service or

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nonurgent health care service.

"Utilization review." A system of prospective, concurrent or

retrospective utilization review performed by a utilization

review entity of the medical necessity and appropriateness of

health care services prescribed, provided or proposed to be

provided to an enrollee. The term includes preauthorization but

does not include any of the following:

(1) Requests for clarification of coverage, eligibility or

health care service verification.

(2) A health care provider's internal quality assurance or

utilization review process unless the review results in denial

of payment for a health care service.

"Utilization review entity." Any entity certified pursuant

to subdivision (h) that performs utilization review on behalf of

a managed care plan. The term includes:

(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,

including preferred provider organizations as provided under

section 630.

(3) Pharmacy benefits managers responsible for managing

access of insureds to available pharmaceutical or

pharmacological care.

(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

provider in this Commonwealth under a policy, plan or contract.

(5) A health insurer if the health insurer performs

utilization review.

Section 2. Section 2111 of the act is amended by adding

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paragraphs to read:

Section 2111. Responsibilities of Managed Care Plans.--A

managed care plan shall do all of the following:

* * *

(14) Make updates to its enrollment eligibility information

within thirty (30) days of receiving updated enrollment

information. Updates in enrollment eligibility may occur due to

new enrollments, coordination of benefits or termination of

benefits. If a managed care plan fails to update eligibility

information in a timely manner, the managed care plan may not

deny payment due to enrollment information being inaccurate for

a date of service if current eligibility information was

available. In the event of a retroactive termination or a

determination that an enrollee was ineligible for benefits, a

health plan may recover any payments made in error within thirty

(30) days of the date of service.

(15) Establish rules pertaining to the timely filing of

health care provider claims that require a health care

provider's filing duty to commence based on the following,

whichever occurs last:

(i) when the patient is discharged;

(ii) when the patient presents complete and accurate

insurance information; or

(iii) when authorization or approval is confirmed by the

managed care plan.

Section 3. The act is amended by adding sections to read:

Section 2114. Preauthorization Standards.--(a) No later

than one hundred eighty (180) days after the effective date of

this section, preauthorization requests shall be accessible to

health care providers and accepted by insurers and utilization

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review organizations electronically through a secure electronic

transmission platform. NCPDP SCRIPT standard shall be acceptable

for pharmaceutical or pharmacological care.

(b) Facsimiles, proprietary payer portals and electronic

forms shall not be considered electronic transmissions.

on the preauthorization of health care services shall be:

(1) based on the medical necessity of those services and on

clinical criteria;

(2) applied consistently; and

(3) disclosed by the managed care plan or utilization review

entity under section 2136.

(d) Adverse determinations and final adverse determinations

made by a utilization review entity or agent of a utilization

review entity shall be based on clinical criteria.

(e) A utilization review entity may not deny coverage of a

health care service solely based on the grounds that the health

care service does not meet an evidence-based standard in the

event that:

(1) no independently developed, evidence-based standards can

be derived from documents published by professional societies;

(2) evidence-based standards are conflicting;

(3) evidence-based standards are lacking from expert

consensus panels; or

(4) existing standards for a particular health care item,

service, pharmaceutical product, test or imaging procedure are

not directly applicable to the health care service as being

applied.

(f) The following apply:

(1) Preauthorization shall not be required:

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(i) when a medication, including noncontrolled generic

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;

(ii) for a patient currently managed with an established

treatment regimen; or

(iii) for the provision of MAT for the treatment of an

opioid-use disorder.

(2) When a utilization review entity, through any agent,

contractor, employee or representative, informs a provider

seeking preauthorization for a medically necessary service that

preauthorization is not required, coverage for the service shall

be deemed approved.

(g) No later than one hundred eighty (180) days after the

effective date of this section, a payer shall accept and respond

to preauthorization requests under a pharmacy benefit through a

secure electronic transmission using the NCPDP SCRIPT standard.

Section 2115. Preauthorization Costs.--(a) In the event

that an insured is covered by more than one health plan that

requires preauthorization, the following provisions shall apply:

(1) Only the primary health plan may require that the

insured comply with the primary health plan's preauthorization

requirements.

(2) A secondary insurer or defined benefits plan may not

refuse payment for health care services solely on the basis that

the procedures set forth by the secondary insurer for

preauthorization were not followed. If the treatment is approved

by the primary insurer, the secondary insurer shall be bound by

the determination of medical necessity made by the primary

insurer.

20190SB0920PN1428 - 11 -

(b) An appeal of an adverse determination or external review

of a final adverse determination shall be provided without

charge to the insured or insured's health care provider.

Section 4. Section 2117 of the act is amended by adding a

subsection to read:

Section 2117. Continuity of Care.--* * *

(g) The following apply:

(1) If the appeal of an adverse determination of a

preauthorization request concerns ongoing health care services

that are being provided pursuant to an initially authorized

admission or course of treatment, the health care services shall

continue to be paid for and provided without liability to the

insured or insured's health care provider until the later of the

following:

(i) thirty (30) days after the insured or insured's health

care provider receives notice of a final adverse determination

satisfying the requirements under section 2114(d) or the

determination of an external review entity if the decision on

adverse determination has been appealed through an external

review proceeding;

(ii) the duration of treatment; or

(iii) sixty (60) days.

(2) An insurer may not retroactively review the insurer's

decision to approve and provide health care services through

preauthorization, including preauthorizing for extending the

term or course of treatment. Notwithstanding any other provision

of law, the insurer may not retroactively recover the cost of

treatment either for the initial period of treatment or the

period of treatment provided to the insured as part of the

decision-making process to authorize coverage of additional

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treatment periods.

Section 5. The act is amended by adding a section to read:

Section 2118. Step Therapy Protocols.--(a) Clinical

criteria used to establish a step therapy protocol shall be

based on clinical practice guidelines that:

(1) recommend that the prescription drugs be taken in the

specific sequence required by the step therapy protocol;

(2) are developed and endorsed by a multidisciplinary panel

of experts that manages conflicts of interest among the members

of the writing and review groups by:

(i) requiring members to disclose any potential conflicts of

interest with entities, including managed care plans and

pharmaceutical manufacturers, and recuse themselves from voting

if they have a conflict of interest;

(ii) using a methodologist to work with writing groups to

provide objectivity in data analysis and ranking of evidence

through the preparation of evidence tables and facilitating

consensus; and

(iii) offering opportunities for public review and comments;

(3) are based on research and medical practice published in

peer review medical journals;

(4) are created by an explicit and transparent process that:

(i) minimizes biases and conflicts of interest;

(ii) explains the relationship between treatment options and

outcomes;

(iii) rates the quality of evidence supporting

recommendations; and

(iv) considers relevant patient subgroups and preferences;

(5) are continually updated through a review of new

evidence, research and newly developed treatments;

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(6) use peer-reviewed publications in the absence of

clinical guidelines that meet the requirements of this act; and

(7) consider the needs of atypical patient populations and

diagnoses when establishing clinical criteria.

(b) When a managed care plan or utilization review entity

restricts coverage of a prescription drug for the treatment of a

medical condition using a step therapy protocol, the enrollee

and health care provider shall have the right to request a step

therapy exception. A managed care plan or utilization review

entity may use its existing medical exceptions process to

satisfy this requirement. Information regarding the process

shall be made available on the managed care plan's or

utilization review entity's publicly accessible Internet

website.

following apply:

(1) The required prescription drug is contraindicated or

likely will cause an adverse reaction by, or physical or mental

harm to, the patient.

(2) The required prescription drug is expected to be

ineffective based on the known clinical characteristics of the

patient and the known characteristics of the prescription drug

regimen.

(3) The patient has tried the required prescription drug

while under the current or a previous managed care plan, or

another prescription drug in the same pharmacologic class or

with the same mechanism of action, and the prescription drug was

discontinued due to lack of efficacy or effectiveness,

diminished effect or an adverse event.

(4) The required prescription drug is not in the best

20190SB0920PN1428 - 14 -

interests of the patient based on medical necessity.

(5) The patient is stable on a prescription drug selected by

the patient's health care provider for the medical condition

under consideration while on a current or previous managed care

plan.

(d) Decisions rendered pursuant to a step therapy request

shall be transmitted in writing to the enrollee and the

enrollee's health care provider.

(e) Upon the granting of a step therapy exception, the

managed care plan or utilization review entity shall authorize

coverage for the prescription drug prescribed by the patient's

treating health care provider.

(f) The managed care plan or utilization review entity shall

grant or deny a step therapy exception request within seventy-

two (72) hours of receipt. In situations where exigent

circumstances exist, the managed care plan or utilization review

entity shall grant or deny a step therapy request within twenty-

four (24) hours of receipt. An insured or an insured's health

care provider may appeal an adverse determination of a step

therapy exception request via telephone, facsimile, e-mail or

other expeditious method. The managed care plan or utilization

review entity shall grant or deny the appeal within the same

time frames as provided in this subsection. Failure of the

managed care plan or utilization review entity to comply with

the deadlines and other requirements specified in this

subsection shall result in the step therapy exception request

being deemed granted and paid by the managed care plan.

(g) Nothing in this section may be construed to:

(1) Require a managed care plan or other entity to establish

a new entity to develop clinical criteria used for step therapy

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protocols.

(2) Prevent a managed care plan or utilization review entity

from requiring a pharmacist to effect substitutions of

prescription drugs consistent with State law.

(3) Prevent a health care provider from prescribing a

prescription drug that is determined to be medically necessary.

Section 6. The heading of Subarticle (f) of Article XXI of

the act is amended to read:

(f) Information for Enrollees and Health Care Providers.

Section 7. Section 2136 of the act is amended by adding a

subsection to read:

Section 2136. Required Disclosure.--* * *

new preauthorization requirement or restriction or amend an

existing requirement or restriction, the utilization review

entity shall provide contracted health care providers and

insureds with written notice of the new or amended requirement

or amendment not less than sixty (60) days before the

requirement or restriction is implemented. The notice shall be

in writing and if served upon health care providers, be provided

by certified mail, return receipt requested. The requirement of

certified mail return receipt requested can be satisfied if the

utilization review entity provides notice to a specified

individual named in the contract with the health care provider

for service of notices, under which circumstances the specified

person may receive notice by e-mail, return receipt requested.

Section 8. Section 2152(a)(4) and (6) are amended, the

subsection is amended by adding paragraphs and the section is

amended by adding subsections to read:

Section 2152. Operational Standards.--(a) A utilization

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review entity shall do all of the following:

* * *

(4) Conduct utilization reviews based on the medical

necessity and appropriateness of the health care service being

reviewed and provide notification within the following time

frames:

(i) A prospective utilization review decision shall be

communicated within two (2) business days of the receipt of all

supporting information reasonably necessary to complete the

review.

(ii) A concurrent utilization review decision shall be

communicated within one (1) business day of the receipt of all

supporting information reasonably necessary to complete the

review.

(iii) A retrospective utilization review decision shall be

communicated within thirty (30) days of the receipt of all

supporting information reasonably necessary to complete the

review.

(iv) A utilization review entity shall allow an insured and

the insured's health care provider a minimum of one (1) business

day following an inpatient admission pursuant to an emergency

health care service or urgent health service to notify the

utilization review entity of the admission and any health care

services performed.

* * *

(6) Provide all decisions in writing to include the basis

and clinical rationale for the decision. For adverse

determinations of preauthorization decisions, a utilization

review entity shall provide all decisions to the insured and

insured's health care provider which shall also include

20190SB0920PN1428 - 17 -

instructions concerning how an appeal may be filed. A

utilization review entity may not retroactively review the

medical necessity of any preauthorization which has been

previously approved or granted.

* * *

(9) Post to its publicly accessible Internet website:

(i) a current list of services and supplies requiring

preauthorization; and

(ii) written clinical criteria for preauthorization

decisions.

(10) Ensure that a preauthorization shall be valid for one

hundred eighty (180) days or the duration of treatment,

whichever is greater, from the date the health care provider

receives the preauthorization, so long as the insured is a

member of the plan.

(11) When performing preauthorization, only request copies

of medical records when a difficulty develops in determining the

medical necessity of a health care service. In that case, the

utilization review agent may only request the necessary and

relevant sections of the medical record.

(12) Not deny preauthorization nor delay preauthorization

for administrative defects. In the event an administrative

defect is discovered, a managed care plan shall allow a health

care provider the opportunity to remedy the administrative

defect within thirty (30) days of receiving notice.

* * *

(e) Failure by a utilization review entity to comply with

deadlines and other requirements specified for preauthorization

shall result in the health care service subject to review to

being deemed preauthorized and paid by the managed care plan.

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(f) A utilization review entity shall approve claims for

health care services for which a preauthorization was required

and received from the managed care plan prior to the rendering

of the health care services, unless:

(1) the enrollee was not eligible for coverage at the time

the health care service was rendered. A managed care plan may

not deny payment for a claim on this basis if the enrollee's

coverage was retroactively terminated more than one hundred

twenty (120) days after the date of service, provided the claim

is submitted timely. If the claim is submitted after the timely

filing deadline, the managed care plan shall have no more than

thirty (30) days after the claim is received to deny the claim

on the basis the enrollee was not eligible for coverage on the

date of the health care service;

(2) the preauthorization was based on materially inaccurate

or incomplete information provided by the enrollee, their

designee or the health care provider, such that if the correct

or complete information had been provided, the preauthorization

would not have been granted; or

(3) there is a reasonable basis supported by material facts

available for review that the enrollee, the enrollee's designee

or the health care provider has engaged in fraud or abuse.

Section 9. The act is amended by adding sections to read:

Section 2161.1. Preauthorization and Adverse

Determinations.--(a) A utilization review entity shall ensure

that:

(1) Preauthorizations are made by a qualified licensed

health care provider who has knowledge of the items, services,

products, tests or procedures submitted for preauthorization.

(2) Adverse determinations are made by a physician. The

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reviewing physician must possess a current and valid

nonrestricted license to practice medicine in this Commonwealth

and be board-certified in the specialty subject to the adverse

determination. A utilization review entity may seek approval

from the Insurance Commissioner to use a reviewing physician

that is not board-certified due to the unavailability of or

difficulty in finding a board-certified reviewing physician in a

given specialty. The Insurance Commissioner shall develop a form

and parameters for the request and shall transmit notice of the

request to the Legislative Reference Bureau for publication in

the Pennsylvania Bulletin. The Insurance Commissioner shall

provide at least ten (10) days for comment before rendering a

decision. The decision shall be transmitted to the Legislative

Reference Bureau for publication in the Pennsylvania Bulletin.

(b) Notice of a preauthorization shall be accompanied by a

unique preauthorization number and state all of the following:

(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.

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) In the event a health care provider obtains

preauthorization for a service but the service provided is not

an exact match to the service that was preauthorized, but does

not materially depart from the service that was preauthorized, a

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health plan shall not deny payment for the service only if:

(1) the date of service differs by less than thirty (30)

days;

(2) the physician or health care provider rendering the

service differs from the person indicated on the

preauthorization but is otherwise licensed and qualified to

provide the preauthorized service; or

(3) the service provided is different than what was

preauthorized but is commonly and appropriately a substitute

based on common procedural terminology.

(e) A health plan shall allow a health care provider to

resubmit a claim with corrected information for appropriate

reimbursement within thirty (30) days of receiving notice of an

adverse determination.

(f) The following apply:

(1) If a utilization review entity questions the medical

necessity of a health care service, the utilization review

entity shall notify the insured's health care provider that

medical necessity is being questioned and provide the basis of

the challenge in sufficient detail to allow the provider to

meaningfully address the concern of the utilization review

entity prior to issuing an adverse determination.

(2) The insured's health care provider or the health care

provider's designee and the insured or insured's designee shall

have the right to discuss the medical necessity of the health

care service with the utilization review physician.

(3) A utilization review entity questioning medical

necessity of a health care service which may result in an

adverse determination shall make the reviewing physician or a

physician who is part of a team making the decision available

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telephonically between the hours of seven o'clock in the morning

(7 a.m.) and seven o'clock in the evening (7 p.m.).

(g) When making a determination based on medical necessity,

a utilization review entity shall base its determination on an

insured's presenting symptoms, diagnosis and information

available through the course of treatment, or at the time of

admission or presentation at the emergency department.

(h) A utilization review entity may not deny

preauthorization based solely on its determination that the

inpatient level of care is not appropriate. In the event a

utilization review entity determines an alternative level of

care is appropriate, it shall provide and cite the specific

criteria it has used as its basis for its level of care

determination to the health care provider. A health care

provider may appeal the determination.

(i) A utilization review entity may not issue an adverse

determination for a procedure due to lack of preauthorization if

the procedure is medically necessary or clinically appropriate

for the patient's medical condition and rendered at the same

time as a related procedure for which preauthorization was

required and received.

(j) When making a medical necessity determination, a

utilization review entity shall deem any hospital stay of at

least forty-eight (48) hours as meeting inpatient level of care

criteria.

(k) A utilization review entity shall make a

preauthorization or adverse determination and notify the insured

and the insured's health care practitioner as follows:

(1) For nonurgent health care services: within seventy-two

(72) hours of obtaining all of the necessary information to make

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the preauthorization or adverse determination.

(2) For urgent health care services: within twenty-four (24)

hours of obtaining all of the necessary information to make the

preauthorization or adverse determination.

(l) No utilization review entity may require

preauthorization for an emergency service, including

postevaluation and poststabilization services.

Section 2161.2. Appeals.--(a) An expedited appeal shall be

provided as follows:

(1) An insured or the insured's health care provider may

request an expedited appeal of an adverse determination via

telephone, facsimile, e-mail or other expeditious method.

(2) Within one (1) day of receiving an expedited appeal and

all information necessary to decide the appeal, the utilization

review entity shall provide the insured and the insured's health

care provider written confirmation of the expedited review

determination.

(b) 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 provider who typically manages the medical

condition or disease.

(3) Knowledgeable of, and has experience in, providing the

health care services under appeal.

(4) Under contract with a utilization review entity to

perform reviews of appeals, and payment of fees due to the

physician under the contract may not be made subject to or

contingent upon the outcome of the appeal. The physician may

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also be subject to a provider agreement with the insurer as a

provider but may not receive any other fees or compensation from

the insurer. The physician's receipt of compensation from the

utilization review entity may not be considered by the physician

in determining the outcome of the appeal. The physician shall

render independent and accurate medical judgment in reaching the

physician's opinion or conclusion. Failure to comply with this

provision shall render the physician subject to licensure

disciplinary action by the appropriate State licensing board.

(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 insured's health care provider and any relevant

records provided to the utilization review entity by a health

care facility.

procedures satisfy the following requirements:

(1) The insured and the insured's health care provider may

challenge the adverse determination and have the right to appear

in person before the physician who reviews the adverse

determination.

(2) The utilization review entity shall provide the insured

and the insured's health care provider with written notice of

the time and place concerning where the review meeting will take

place. Notice shall be given to the insured's health care

provider at least fifteen (15) days in advance of the review

meeting.

(3) If the insured or the insured's health care provider

appear in person, the utilization review entity shall offer the

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insured or insured's health care provider the opportunity to

communicate with the reviewing physician, at the utilization

review entity's expense, by conference call, video conferencing

or other available technology.

(4) 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) The following deadlines apply:

(1) A utilization review entity shall decide an expedited

appeal and notify the insured and health care provider of the

determination within one (1) day after receiving a notice of

expedited appeal by the insured or the insured's health care

provider 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

ten (10) days after receiving a notice of appeal from an insured

or insured's health care provider and all information necessary

to decide the appeal.

(e) Written notice of final adverse determinations shall be

provided to the insured and the insured's health care provider.

(f) If the insured or the insured's health care provider, or

a designee on behalf of either the insured or the insured's

health care provider, has satisfied the necessary requirements

for the appeal of an adverse determination through the

preauthorization process and the appeal has resulted in a

continued adverse determination either based in lack of medical

necessity or an administrative defect, the insured, the

insured's health care provider or a designee on behalf of either

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of them is authorized to file a consumer complaint with the

Insurance Department. The complaint shall be adjudicated without

unnecessary delay and a determination issued by the Insurance

Department with appropriate sanctions if applicable pursuant to

the authority given to the Insurance Department. The following

apply:

(1) If an insured, the insured's provider or a designee on

behalf of the insured or the insured's provider files a consumer

complaint with the Department of Health or the Office of the

Attorney General pursuant to their authority to receive

complaints, a copy of the complaint filed with either of those

agencies shall be forwarded to the Insurance Department and the

copy shall serve as a new consumer complaint which shall be

adjudicated pursuant to this section and all other applicable

law.

(2) Nothing in this section is intended to preclude an

insured or an insured's designee from filing a separate consumer

complaint with the Insurance Department for failure to comply

with the requirements of this act as it applies to

preauthorization processes or denial of health insurance

coverage generally.

Section 2195. Access Requirements in Service Areas.--If a

patient's safe discharge is delayed for any reason, including

lack of available posthospitalization services, including, but

not limited to, skilled nursing facilities, home health services

and postacute rehabilitation, the managed care plan shall

reimburse the hospital for each subsequent date of service at

the greater of the hospital's contracted rate with the managed

care plan for the current level of care and service or the full

diagnostic related group payment divided by the mean length of

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stay for that particular diagnostic related group.

Section 2196. Uniform Preauthorization Form.--(a) Within

three (3) months of the effective date of this section, the

Insurance Department shall convene a panel to develop a uniform

preauthorization form that health care providers in this

Commonwealth shall use to request preauthorization and that

health insurers shall accept as sufficient to request

preauthorization of health care services.

(b) The panel shall consist of not fewer than ten (10)

persons. Equal representation shall be afforded to the

physician, health care facility, employer, health insurer and

consumer protection communities within this Commonwealth.

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

providers in this Commonwealth and utilization review entities

and agents.

Section 2197. Preauthorization Exemptions.--(a) When

appropriate use criteria exist 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) A health care service that has been provided following

approval through the preauthorization procedures provided by the

insurer or which is not subject to preauthorization procedures

may not be subject to retrospective review based on medical

necessity related to the preauthorization.

Section 2198. Data Collection and Reporting.--The Insurance

Department shall maintain and collect data on the number of

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appeals filed by enrollees, enrollee designees and health care

providers with utilization review entities. The Insurance

Department shall, on an annual basis, publish a report made

accessible on its publicly accessible Internet website and serve

a copy of the report on the Banking and Insurance Committee of

the Senate and the Insurance Committee of the House of

Representatives that identifies the following data by place and

type of service:

(1) The total number of appeals filed against utilization

review entities.

(2) The number and percentage of appeals filed against each

utilization review entity.

(3) The total number of appeals found in favor of

utilization review entities.

(4) The number and percentage of appeals found in favor of

each managed care plan.

(5) The total number of appeals found in favor of the

enrollee, designee or health care provider.

(6) The number and percentage of appeals found in favor of

the enrollee, designee or health care provider against each

managed care plan.

(7) The Insurance Department shall evaluate, monitor and

track health plan statistics in accordance with the information

gathered under this section and investigate negative trends and

outliers. In addition, the Insurance Department shall facilitate

meetings between health care providers and managed care plans to

discuss and resolve disputes.

Section 10. This act shall take effect in 60 days.

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