Improving Seniors’ Timely Access to Care Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3107 To amend title XVIII of the Social Security Act to establish requirements with respect to the use of prior authorization under Medicare Advantage plans, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 5, 2019 Ms. DELBENE (for herself, Mr. KELLY of Pennsylvania, Mr. MARSHALL, and Mr. BERA) introduced the following bill; which was referred to the Com- mittee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speak- er, in each case for consideration of such provisions as fall within the ju- risdiction of the committee concerned A BILL 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Improving Seniors’ 4 Timely Access to Care Act of 2019’’. 5 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 3107 IH SEC. 2. SENSE OF CONGRESS. 1 It is the sense of Congress that— 2 (1) use of prior authorization should be stream- 3 lined through electronic transmissions for coverage 4 of covered services for individuals enrolled in feder- 5 ally funded programs such as Medicare, Medicaid, 6 and federally contracted managed care plans to im- 7 prove patient access to medically appropriate serv- 8 ices and reduce administrative burden through auto- 9 mation informed by clinical decision support; 10 (2) there should be increased transparency for 11 beneficiaries and providers and increased oversight 12 by the Centers for Medicare & Medicaid Services on 13 the processes used for prior authorization; and 14 (3) prior authorization is a tool that can be 15 used to responsibly prevent unnecessary care and 16 promote safe and evidence-based care. 17 SEC. 3. ESTABLISHING REQUIREMENTS WITH RESPECT TO 18 THE USE OF PRIOR AUTHORIZATION UNDER 19 MEDICARE ADVANTAGE PLANS. 20 (a) IN GENERAL.—Section 1852 of the Social Secu- 21 rity Act (42 U.S.C. 1395w–22) is amended by adding at 22 the end the following new subsection: 23 ‘‘(o) PRIOR AUTHORIZATION REQUIREMENTS.— 24 ‘‘(1) IN GENERAL.—In the case of a Medicare 25 Advantage plan that imposes any prior authorization 26 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 3107 IH requirement with respect to any benefit, such plan 1 shall, beginning with the first plan year beginning 2 on or after the date of the enactment of this sub- 3 section— 4 ‘‘(A) comply with the prohibition described 5 in paragraph (2); 6 ‘‘(B) establish the electronic prior author- 7 ization program described in paragraph (3); 8 ‘‘(C) meet the transparency requirements 9 specified in paragraph (4); and 10 ‘‘(D) meet the beneficiary protection stand- 11 ards specified pursuant to paragraph (5). 12 ‘‘(2) PROHIBITION ON PRIOR AUTHORIZATION 13 WITH RESPECT TO CERTAIN ITEMS AND SERVICES.— 14 A Medicare Advantage plan may not impose any ad- 15 ditional prior authorization requirement with respect 16 to any surgical procedure or otherwise invasive pro- 17 cedure (as defined by the Secretary), and any item 18 furnished as part of such surgical or invasive proce- 19 dure, if such procedure (or item) is furnished during 20 the peroperative period of a procedure for which— 21 ‘‘(A) prior authorization was received from 22 such plan before such surgical or otherwise 23 invasive procedure (or item furnished as part of 24 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 3107 IH such surgical or otherwise invasive procedure) 1 was furnished; or 2 ‘‘(B) prior authorization was not required 3 by such plan. 4 ‘‘(3) ELECTRONIC PRIOR AUTHORIZATION PRO- 5 GRAM.— 6 ‘‘(A) IN GENERAL.—For purposes of para- 7 graph (1)(B), the electronic prior authorization 8 program described in this paragraph is a prior 9 authorization process implemented by a Medi- 10 care Advantage plan that provides for the se- 11 cure electronic transmission of— 12 ‘‘(i) a prior authorization request 13 from a health care professional to such 14 plan with respect to an item or service to 15 be furnished to an individual, including 16 such clinical information as the profes- 17 sional determines appropriate to support 18 the furnishing of such item or service to 19 such individual; and 20 ‘‘(ii) a response, in accordance with 21 this paragraph, from such plan to such 22 professional. 23 ‘‘(B) ELECTRONIC TRANSMISSION.— 24 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 3107 IH ‘‘(i) EXCLUSIONS.—For purposes of 1 this paragraph, a facsimile, a proprietary 2 payer portal that does not meet standards 3 specified by the Secretary, or an electronic 4 form shall not be treated as an electronic 5 transmission described in subparagraph 6 (A). 7 ‘‘(ii) STANDARDS.— 8 ‘‘(I) IN GENERAL.—In order to 9 ensure appropriate clinical outcome 10 for individuals, for purposes of this 11 paragraph, an electronic transmission 12 described in subparagraph (A) shall 13 comply with technical standards 14 adopted by the Secretary in consulta- 15 tion with standard-setting organiza- 16 tions determined appropriate by the 17 Secretary, health care professionals, 18 MA organizations, and health infor- 19 mation technology software vendors. 20 In adopting such standards, the Sec- 21 retary shall ensure that such trans- 22 missions support attachments con- 23 taining applicable clinical information 24 and shall prioritize the adoption of 25 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 3107 IH standards that encourage integration 1 of the electronic prior authorization 2 program into established electronic 3 health record systems. 4 ‘‘(II) TRANSACTION STAND- 5 ARD.—The Secretary shall include in 6 the standards adopted under sub- 7 clause (I) a standard with respect to 8 the transmission of attachments de- 9 scribed in such subclause, and data 10 elements and operating rules for such 11 transmission, consistent with health 12 care industry standards. 13 ‘‘(C) REAL-TIME DECISIONS.— 14 ‘‘(i) IN GENERAL.—The program de- 15 scribed in subparagraph (A) shall provide 16 for real-time decisions (as defined by the 17 Secretary) with respect to requests identi- 18 fied by the Secretary pursuant to clause 19 (ii) for a plan year if such requests contain 20 all information required by an MA plan to 21 evaluate the criteria described in para- 22 graph (4)(A)(iii)(II). 23 ‘‘(ii) IDENTIFICATION OF RE- 24 QUESTS.—For purposes of clause (i) and 25 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 3107 IH with respect to a plan year, the Secretary 1 shall identify, not later than the date on 2 which the initial announcement described 3 in section 1853(b)(1)(B)(i) for such plan 4 year is required to be announced, items 5 and services for which prior authorization 6 requests are routinely approved. 7 ‘‘(iii) DATA COLLECTION AND CON- 8 SULTATION WITH RELEVANT ELIGIBLE 9 PROFESSIONAL ORGANIZATIONS AND REL- 10 EVANT STAKEHOLDERS.—In identifying re- 11 quests for a year under clause (ii), the Sec- 12 retary shall use the information described 13 in paragraph (4)(A) (if available) and shall 14 issue a request for information from pro- 15 viders, suppliers, patient advocacy organi- 16 zations, and other stakeholders. 17 ‘‘(4) TRANSPARENCY REQUIREMENTS.— 18 ‘‘(A) IN GENERAL.—For purposes of para- 19 graph (1)(C), the transparency requirements 20 specified in this paragraph are, with respect to 21 a Medicare Advantage plan, the following: 22 ‘‘(i) The plan, not less frequently than 23 annually and at a time and in a manner 24 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 3107 IH specified by the Secretary, shall submit to 1 the Secretary the following information: 2 ‘‘(I) A list of all items and serv- 3 ices that are described in subsection 4 (a)(1)(B) that are subject to a prior 5 authorization requirement under the 6 plan. 7 ‘‘(II) The percentage of prior au- 8 thorization requests approved during 9 the previous plan year by the plan 10 with respect to each such item and 11 service. 12 ‘‘(III) The percentage of such re- 13 quests that were initially denied and 14 that were subsequently appealed, and 15 the percentage of such appealed re- 16 quests that were overturned, with re- 17 spect to each such item and service. 18 ‘‘(IV) The average and the me- 19 dian amount of time (in hours) that 20 elapsed during the previous plan year 21 between the submission of such a re- 22 quest to the plan and a determination 23 by the plan with respect to such re- 24 quest for each such item and service, 25 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 3107 IH excluding any such requests that did 1 not contain all information required to 2 be submitted by the plan. 3 ‘‘(V) Such other information as 4 the Secretary determines appropriate 5 after consultation with and comment 6 from stakeholders. 7 ‘‘(ii) The plan shall publish the infor- 8 mation described in clause (i) annually be- 9 fore open enrollment on a publicly available 10 website. Such plan shall provide the ad- 11 dress of such website in any enrollment 12 materials distributed by the plan and shall 13 update such website in a timely manner. 14 ‘‘(iii) The plan shall provide— 15 ‘‘(I) along with contract mate- 16 rials for any provider or supplier who 17 seeks to participate under the plan, 18 the list described in clause (i)(I) and 19 any policies or procedures used by the 20 plan for making determinations with 21 respect to prior authorization re- 22 quests; and 23 ‘‘(II) to each provider and sup- 24 plier participating under the plan, ac- 25 VerDate Sep 11 2014 04:42 Jun 14, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 3107 IH cess to the criteria used by the plan 1 for making such determinations, in- 2 cluding an itemization of the medical 3 or other documentation required to be 4 submitted by a provider or supplier 5 with respect to such a request, except 6 to the extent that provision of access 7 to such criteria would disclose propri- 8 etary information of such plan, as de- 9 termined by the Secretary. 10 ‘‘(B) REPORT TO CONGRESS.—Not later 11 than the end of the second plan year beginning 12 on or after the date of the enactment of this 13 subsection, and biennially thereafter, the Sec- 14 retary shall submit to Congress a report de- 15 scribing the information submitted under sub- 16 paragraph (A)(i) with respect to— 17 ‘‘(i) in the case of the first such re- 18 port, the first plan year beginning on or 19 after such date; and 20 ‘‘(ii) in the case of a subsequent re- 21 port, the 2 full plan years preceding the 22 date of the submission of such report. 23 ‘‘(5) BENEFICIARY PROTECTION STANDARDS.— 24 The Secretary of Health and Human Services shall, 25 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 3107 IH through notice and comment rulemaking, specify 1 standards with respect to the use of prior authoriza- 2 tion by MA plans to ensure— 3 ‘‘(A) that such plans adopt transparent 4 programs developed in consultation with pro- 5 viders and suppliers participating under the 6 plans that promote the modification of such re- 7 quirements based on the performance of such 8 providers and suppliers with respect to adher- 9 ence to evidence-based medical guidelines and 10 other quality criteria; 11 ‘‘(B) that such plans conduct annual re- 12 views of items and services for which prior au- 13 thorization requirements are imposed under 14 such plans through a process that takes into ac- 15 count input from participating providers and 16 suppliers and is based on analysis of past prior 17 authorization requests and current clinical cri- 18 teria; 19 ‘‘(C) continuity of care for individuals 20 transitioning to, or between, coverage under 21 such plans in order to minimize any disruption 22 to ongoing treatment attributable to prior au- 23 thorization requirements under such plans; 24 VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 3107 IH ‘‘(D) that such plans make timely prior au- 1 thorization determinations, provide rationales 2 for denials, and ensure requests are reviewed by 3 qualified medical personnel; and 4 ‘‘(E) that plans assist providers and sup- 5 pliers in submitting the information necessary 6 to enable the plan to make a prior authorization 7 determination in a timely manner.’’. 8 (b) DETERMINATION CLARIFICATION.—Section 9 1852(g)(1)(A) of the Social Security Act (42 U.S.C. 10 1392w–22(g)(1)(A)) is amended by inserting ‘‘(including 11 any decision made with respect to a prior authorization 12 request for such service)’’ after ‘‘section’’. 13 Æ VerDate Sep 11 2014 16:51 Jun 12, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\H3107.IH H3107 pamtmann on DSKBFK8HB2PROD with BILLS