Improving Seniors’ Timely Access to Care Act of 2022

II 117TH CONGRESS 2D SESSION H. R. 3173 IN THE SENATE OF THE UNITED STATES SEPTEMBER 15, 2022 Received AN ACT To amend title XVIII of the Social Security Act to establish requirements with respect to the use of prior authoriza- tion under Medicare Advantage plans, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 2 HR 3173 RDS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Improving Seniors’ 2 Timely Access to Care Act of 2022’’. 3 SEC. 2. ESTABLISHING REQUIREMENTS WITH RESPECT TO 4 THE USE OF PRIOR AUTHORIZATION UNDER 5 MEDICARE ADVANTAGE PLANS. 6 (a) IN GENERAL.—Section 1852 of the Social Secu- 7 rity Act (42 U.S.C. 1395w–22) is amended by adding at 8 the end the following new subsection: 9 ‘‘(o) PRIOR AUTHORIZATION REQUIREMENTS.— 10 ‘‘(1) IN GENERAL.—In the case of a Medicare 11 Advantage plan that imposes any prior authorization 12 requirement with respect to any applicable item or 13 service (as defined in paragraph (5)) during a plan 14 year, such plan shall— 15 ‘‘(A) beginning with the third plan year be- 16 ginning after the date of the enactment of this 17 subsection— 18 ‘‘(i) establish the electronic prior au- 19 thorization program described in para- 20 graph (2); and 21 ‘‘(ii) meet the enrollee protection 22 standards specified pursuant to paragraph 23 (4); and 24 ‘‘(B) beginning with the fourth plan year 25 beginning after the date of the enactment of 26 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 3 HR 3173 RDS this subsection, meet the transparency require- 1 ments specified in paragraph (3). 2 ‘‘(2) ELECTRONIC PRIOR AUTHORIZATION PRO- 3 GRAM.— 4 ‘‘(A) IN GENERAL.—For purposes of para- 5 graph (1)(A), the electronic prior authorization 6 program described in this paragraph is a pro- 7 gram that provides for the secure electronic 8 transmission of— 9 ‘‘(i) a prior authorization request 10 from a provider of services or supplier to 11 a Medicare Advantage plan with respect to 12 an applicable item or service to be fur- 13 nished to an individual and a response, in 14 accordance with this paragraph, from such 15 plan to such provider or supplier; and 16 ‘‘(ii) any attachment relating to such 17 request or response. 18 ‘‘(B) ELECTRONIC TRANSMISSION.— 19 ‘‘(i) EXCLUSIONS.—For purposes of 20 this paragraph, a facsimile, a proprietary 21 payer portal that does not meet standards 22 specified by the Secretary, or an electronic 23 form shall not be treated as an electronic 24 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 4 HR 3173 RDS transmission described in subparagraph 1 (A). 2 ‘‘(ii) STANDARDS.—An electronic 3 transmission described in subparagraph 4 (A) shall comply with— 5 ‘‘(I) applicable technical stand- 6 ards adopted by the Secretary pursu- 7 ant to section 1173; and 8 ‘‘(II) other requirements to pro- 9 mote the standardization and stream- 10 lining of electronic transactions under 11 this part specified by the Secretary. 12 ‘‘(iii) DEADLINE FOR SPECIFICATION 13 OF ADDITIONAL REQUIREMENTS.—Not 14 later than July 1, 2023, the Secretary 15 shall finalize requirements described in 16 clause (ii)(II). 17 ‘‘(C) REAL-TIME DECISIONS.— 18 ‘‘(i) IN GENERAL.—Subject to clause 19 (iv), the program described in subpara- 20 graph (A) shall provide for real-time deci- 21 sions (as defined by the Secretary in ac- 22 cordance with clause (v)) by a Medicare 23 Advantage plan with respect to prior au- 24 thorization requests for applicable items 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 5 HR 3173 RDS and services identified by the Secretary 1 pursuant to clause (ii) if such requests are 2 submitted with all medical or other docu- 3 mentation required by such plan. 4 ‘‘(ii) IDENTIFICATION OF ITEMS AND 5 SERVICES.— 6 ‘‘(I) IN GENERAL.—For purposes 7 of clause (i), the Secretary shall iden- 8 tify, not later than the date on which 9 the initial announcement described in 10 section 1853(b)(1)(B)(i) for the third 11 plan year beginning after the date of 12 the enactment of this subsection is re- 13 quired to be announced, applicable 14 items and services for which prior au- 15 thorization requests are routinely ap- 16 proved. 17 ‘‘(II) UPDATES.—The Secretary 18 shall consider updating the applicable 19 items and services identified under 20 subclause (I) based on the information 21 described in paragraph (3)(A)(i) (if 22 available and determined practicable 23 to utilize by the Secretary) and any 24 other information determined appro- 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 6 HR 3173 RDS priate by the Secretary not less fre- 1 quently than biennially. The Secretary 2 shall announce any such update that 3 is to apply with respect to a plan year 4 not later than the date on which the 5 initial announcement described in sec- 6 tion 1853(b)(1)(B)(i) for such plan 7 year is required to be announced. 8 ‘‘(iii) REQUEST FOR INFORMATION.— 9 The Secretary shall issue a request for in- 10 formation for purposes of initially identi- 11 fying applicable items and services under 12 clause (ii)(I). 13 ‘‘(iv) EXCEPTION FOR EXTENUATING 14 CIRCUMSTANCES.—In the case of a prior 15 authorization request submitted to a Medi- 16 care Advantage plan for an individual en- 17 rolled in such plan during a plan year with 18 respect to an item or service identified by 19 the Secretary pursuant to clause (ii) for 20 such plan year, such plan may, in lieu of 21 providing a real-time decision with respect 22 to such request in accordance with clause 23 (i), delay such decision under extenuating 24 circumstances (as specified by the Sec- 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 7 HR 3173 RDS retary), provided that such decision is pro- 1 vided no later than 72 hours after receipt 2 of such request (or, in the case that the 3 provider of services or supplier submitting 4 such request has indicated that such delay 5 may seriously jeopardize such individual’s 6 life, health, or ability to regain maximum 7 function, no later than 24 hours after re- 8 ceipt of such request). 9 ‘‘(v) DEFINITION OF REAL-TIME DECI- 10 SION.—In establishing the definition of a 11 real-time decision for purposes of clause 12 (i), the Secretary shall take into account 13 current medical practice, technology, 14 health care industry standards, and other 15 relevant information relating to how quick- 16 ly a Medicare Advantage plan may provide 17 responses with respect to prior authoriza- 18 tion requests. 19 ‘‘(vi) IMPLEMENTATION.—The Sec- 20 retary shall use notice and comment rule- 21 making for each of the following: 22 ‘‘(I) Establishing the definition 23 of a ‘real-time decision’ for purposes 24 of clause (i). 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 8 HR 3173 RDS ‘‘(II) Updating such definition. 1 ‘‘(III) Initially identifying appli- 2 cable items or services pursuant to 3 clause (ii)(I). 4 ‘‘(IV) Updating applicable items 5 and services so identified as described 6 in clause (ii)(II). 7 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 8 ‘‘(A) IN GENERAL.—For purposes of para- 9 graph (1)(B), the transparency requirements 10 specified in this paragraph are, with respect to 11 a Medicare Advantage plan, the following: 12 ‘‘(i) The plan, annually and in a man- 13 ner specified by the Secretary, shall submit 14 to the Secretary the following information: 15 ‘‘(I) A list of all applicable items 16 and services that were subject to a 17 prior authorization requirement under 18 the plan during the previous plan 19 year. 20 ‘‘(II) The percentage and number 21 of specified requests (as defined in 22 subparagraph (F)) approved during 23 the previous plan year by the plan in 24 an initial determination and the per- 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 9 HR 3173 RDS centage and number of specified re- 1 quests denied during such plan year 2 by such plan in an initial determina- 3 tion (both in the aggregate and cat- 4 egorized by each item and service). 5 ‘‘(III) The percentage and num- 6 ber of specified requests submitted 7 during the previous plan year that 8 were made with respect to an item or 9 service identified by the Secretary 10 pursuant to paragraph (2)(C)(ii) for 11 such plan year, and the percentage 12 and number of such requests that 13 were subject to an exception under 14 paragraph (2)(C)(iv) (categorized by 15 each item and service). 16 ‘‘(IV) The percentage and num- 17 ber of specified requests submitted 18 during the previous plan year that 19 were made with respect to an item or 20 service identified by the Secretary 21 pursuant to paragraph (2)(C)(ii) for 22 such plan year that were approved 23 (categorized by each item and serv- 24 ice). 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 10 HR 3173 RDS ‘‘(V) The percentage and number 1 of specified requests that were denied 2 during the previous plan year by the 3 plan in an initial determination and 4 that were subsequently appealed. 5 ‘‘(VI) The number of appeals of 6 specified requests resolved during the 7 preceding plan year, and the percent- 8 age and number of such resolved ap- 9 peals that resulted in approval of the 10 furnishing of the item or service that 11 was the subject of such request, cat- 12 egorized by each applicable item and 13 service and categorized by each level 14 of appeal (including judicial review). 15 ‘‘(VII) The percentage and num- 16 ber of specified requests that were de- 17 nied, and the percentage and number 18 of specified requests that were ap- 19 proved, by the plan during the pre- 20 vious plan year through the utilization 21 of decision support technology, artifi- 22 cial intelligence technology, machine- 23 learning technology, clinical decision- 24 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 11 HR 3173 RDS making technology, or any other tech- 1 nology specified by the Secretary. 2 ‘‘(VIII) The average and the me- 3 dian amount of time (in hours) that 4 elapsed during the previous plan year 5 between the submission of a specified 6 request to the plan and a determina- 7 tion by the plan with respect to such 8 request for each such item and serv- 9 ice, excluding any such requests that 10 were not submitted with the medical 11 or other documentation required to be 12 submitted by the plan. 13 ‘‘(IX) The percentage and num- 14 ber of specified requests that were ex- 15 cluded from the calculation described 16 in subclause (VIII) based on the 17 plan’s determination that such re- 18 quests were not submitted with the 19 medical or other documentation re- 20 quired to be submitted by the plan. 21 ‘‘(X) Information on each occur- 22 rence during the previous plan year in 23 which, during a surgical or medical 24 procedure involving the furnishing of 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 12 HR 3173 RDS an applicable item or service with re- 1 spect to which such plan had ap- 2 proved a prior authorization request, 3 the provider of services or supplier 4 furnishing such item or service deter- 5 mined that a different or additional 6 item or service was medically nec- 7 essary, including a specification of 8 whether such plan subsequently ap- 9 proved the furnishing of such dif- 10 ferent or additional item or service. 11 ‘‘(XI) A disclosure and descrip- 12 tion of any technology described in 13 subclause (VII) that the plan utilized 14 during the previous plan year in mak- 15 ing determinations with respect to 16 specified requests. 17 ‘‘(XII) The number of grievances 18 (as described in subsection (f)) re- 19 ceived by such plan during the pre- 20 vious plan year that were related to a 21 prior authorization requirement. 22 ‘‘(XIII) Such other information 23 as the Secretary determines appro- 24 priate. 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 13 HR 3173 RDS ‘‘(ii) The plan shall provide— 1 ‘‘(I) to each provider or supplier 2 who seeks to enter into a contract 3 with such plan to furnish applicable 4 items and services under such plan, 5 the list described in clause (i)(I) and 6 any policies or procedures used by the 7 plan for making determinations with 8 respect to prior authorization re- 9 quests; 10 ‘‘(II) to each such provider and 11 supplier that enters into such a con- 12 tract, access to the criteria used by 13 the plan for making such determina- 14 tions and an itemization of the med- 15 ical or other documentation required 16 to be submitted by a provider or sup- 17 plier with respect to such a request; 18 and 19 ‘‘(III) to an enrollee of the plan, 20 upon request, access to the criteria 21 used by the plan for making deter- 22 minations with respect to prior au- 23 thorization requests for an item or 24 service. 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3173.RDS H3173 kjohnson on DSK79L0C42PROD with BILLS 14 HR 3173 RDS ‘‘(B) OPTION FOR PLAN TO PROVIDE CER- 1 TAIN ADDITIONAL INFORMATION.—As part of 2 the information described in subparagraph 3 (A)(i) provided to the Secretary during a plan 4 year, a Medicare Advantage plan may elect to 5 include information regarding the percentage 6 and number of specified requests made with re- 7 spect to an individual and an item or service 8 that were denied by the plan during the pre- 9 ceding plan year in an initial determination 10 based on such requests failing to demonstrate 11 that such individuals met the clinical criteria 12 established by such plan to receive such [Text truncated for display. 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