SB 561-FN - AS INTRODUCED
2024 SESSION
24-3135
05/10
SENATE BILL 561-FN
AN ACT relative to prior authorizations for health care.
SPONSORS: Sen. Ricciardi, Dist 9; Sen. D'Allesandro, Dist 20; Sen. Soucy, Dist 18; Sen. Fenton, Dist 10; Sen. Rosenwald, Dist 13; Sen. Whitley, Dist 15; Sen. Innis, Dist 7; Sen. Watters, Dist 4; Sen. Chandley, Dist 11; Rep. Nagel, Belk. 6; Rep. Kuttab, Rock. 17
COMMITTEE: Health and Human Services
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ANALYSIS
This bill establishes criteria for prior authorization required by insurers offering managed care health benefit plans.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-3135
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to prior authorizations for health care.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Clinical Review Criteria. Amend RSA 420-J:3, VII to read as follows:
VII. "Clinical review criteria" means the written policies, screening procedures, decision abstracts, clinical protocols, [and] practice guidelines, medical protocols, and any other written decision-making standards used by [the] a health carrier or utilization review entity to determine the medical necessity and appropriateness of health care services.
2 New Paragraphs; Definitions of Prior Authorization and Prior Authorization Determination. Amend RSA 420-J:3 by inserting after paragraph XXVIII-b the following new paragraphs:
XXVIII-c. "Prior authorization" means the process by which a health carrier or utilization review entity determines the medical necessity of otherwise covered health care prior to the rendering of such health care services. "Prior authorization" shall also include any responsive medical necessity determination that may occur pursuant to a health carrier's or utilization review entity’s requirement that a covered person or health care provider notify the health insurer or utilization review entity prior to providing a health care service.
XXVIII-d. "Prior authorization determination" means a determination by a health carrier or a utilization review entity that a health care service has been reviewed pursuant to a pre-service claim and, based on the information provided, satisfies or does not satisfy the health carrier’s or the utilization review entity's requirements for medical necessity.
3 New Paragraph; Definition of Urgent Care. Amend RSA 420-J:3 by inserting after paragraph XXXIV the following new paragraph:
XXXIV-a. “Urgent care” means a medical or behavioral health care service available to a covered person which, if delayed:
(a) Could seriously jeopardize the life or health of the covered person or the ability of the covered person to regain maximum function; or
(b) In the opinion of a provider with knowledge of the covered person’s medical condition, would subject the covered person to severe pain that cannot be adequately managed without the available health care service.
4 Definitions of Utilization Review and Utilization Review Entity. RSA 420-J:3, XXXIV and XXXV are amended to read as follows:
XXXIV. "Utilization review" means a set of formal techniques designed to monitor the use of or evaluate the clinical necessity, appropriateness, efficacy, or efficiency of health care services procedures, providers, or facilities. Techniques and methods may include but are not limited to ambulatory care review, case management, concurrent hospital review, discharge planning, pre-hospital admission certification, pre-inpatient service eligibility certification, prospective review, prior authorization, second opinion, or retrospective review.
XXXV. "Utilization review entity" means an entity[, subject to licensure pursuant to RSA 420-E, that conducts utilization review, other than a health carrier performing review for its own health plans] described in RSA 420-E:2 as being subject to licensure pursuant to RSA 420-E.
5 Managed Care Law; Utilization Review; Prior Authorization. RSA 420-J:6 is repealed and reenacted to read as follows:
420-J:6 Utilization Review.
I. Written standards and procedures.
(a) Each health carrier conducting utilization review directly or indirectly through a contracted utilization review entity shall have written procedures for carrying out its utilization review processes and shall file such procedures with the commissioner on or before April 1 of each year. Such carriers shall conform to the standards of either the Utilization Review Accreditation Commission or the National Committee for Quality Assurances and are subject to all applicable rules issued pursuant to RSA 420-E:7.
(b) The written procedures shall describe the categories of health care personnel that perform utilization review activities and whether or not such individuals are licensed in this state, and shall address at a minimum, prior authorization requirements, second opinion programs; pre-hospital admission certification; pre-inpatient service eligibility certification; and concurrent hospital review to determine appropriate length of stay; as well as the process used by the health carrier to preserve confidentiality of medical information.
(c) The clinical review criteria used by a health carrier or its contracted utilization review entity shall be in writing and:
(1) Developed with input from appropriate actively practicing practitioners in the health carrier's service area;
(2) Updated at least biennially and as new treatments, applications, and technologies emerge;
(3) Developed in accordance with the standards of national accreditation entities;
(4) Based on current, nationally accepted standards of medical practice; and
(5) If practicable, evidence-based.
(d) All contracts that health carriers make with a utilization review entity shall be available to the commissioner upon request.
II. Disclosure of prior authorization requirements and publication of prior authorization performance indicators.
(a) A health carrier conducting utilization review directly or indirectly through a contracted utilization review entity shall make any current prior authorization requirements and restrictions readily accessible on its website to enrollees, health care professionals, and the general public. This includes the written clinical criteria. Requirements shall be described in detail but also in easily understandable language.
(b) If a health carrier or its contracted utilization review entity intends either to implement a new prior authorization requirement or restriction, or amend an existing requirement or restriction, the health carrier shall:
(1) Ensure that the new or amended requirement is not implemented unless the health carrier's website has been updated to reflect the new or amended requirement or restriction.
(2) Provide contracted health care providers of enrollees written notice of the new or amended requirement or amendment no less than 60 days before the requirement or restriction is implemented.
(c) Health carriers conducting utilization review directly or indirectly through a contracted utilization review entity shall make statistics available regarding prior authorization approvals and denials to the commissioner, and the commissioner shall display relevant corresponding data, in a carrier specific format, on a website maintained by the insurance department in a readily accessible format.
III. Qualifications of reviewers making medical necessity determinations. A health carrier conducting utilization review directly or indirectly through a contracted utilization review entity shall ensure that all medical necessity determinations are made by a qualified health care provider. A reviewing provider shall:
(a) Have appropriate medical and professional expertise and credentials to competently render the medical necessity determination.
(b) Be a practitioner in the same or similar specialty who typically treats the medical condition, performs the procedure, or provides the treatment under review. A practitioner is considered of the same specialty if he or she has similar credentials and licensure as those who typically treat the condition or health problem under review. A practitioner is considered of a similar specialty if he or she has experience treating the same problems as those in question, in addition to expertise treating similar complications of those problems.
(c) Make the medical necessity determination under the clinical direction of one of the health carrier’s own medical directors or one of the contracted utilization review entity's medical directors who is responsible for the review of health care services provided to covered persons who are residents of New Hampshire.
IV. Medical directors. Each health carrier that directly conducts utilization review shall employ one or more medical directors who shall have responsibility for all utilization review techniques and methods and their administration and implementation and who shall be licensed in New Hampshire under RSA 329. Nothing in this section shall be construed to preclude a medical director from consulting with or relying on the advice of a physician licensed in this state or any other state. Nothing in this section shall be construed as creating any civil liability to the medical director for the medical director's alleged negligent performance of the aforementioned responsibilities for utilization review.
V. Timeliness standards for processing prior authorization requests submitted electronically. Health carriers conducting utilization review directly or indirectly through a contracted utilization review entity shall meet the following time frames for prior authorization determinations requested by participating providers or facilities that submit the prior authorization request through an electronic prior authorization process as designated by the health carrier:
(a) In non-urgent circumstances, health carriers requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination within 3 business days of obtaining all information necessary to make the determination.
(b) In urgent circumstances, health carriers requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination as expeditiously as the covered person’s medical condition requires, and not later than 48 hours after obtaining all information necessary to make the determination.
VI. Timeliness standards for processing prior authorization requests submitted non-electronically. Health carriers conducting utilization review directly or indirectly through a contracted utilization review entity shall meet the following time frames for prior authorization determinations requested by participating providers or facilities that submit the prior authorization request through a non-electronic prior authorization process as designated by the utilization review entity:
(a) In non-urgent circumstances, health carriers requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination within 6 business days of obtaining all information necessary to make the determination.
(b) In urgent circumstances, health carriers requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination as expeditiously as the covered person’s medical condition requires, and not later than 72 hours after obtaining all information necessary to make the determination.
VII. In paragraphs V and VI, "all information necessary to make the determination" shall include the results of any face-to-face clinical evaluation or second opinion that may be required.
VIII. Duration of an approval of a prior authorization request.
(a) Health carriers conducting utilization review directly or indirectly through a contracted utilization review entity shall not revoke, limit, condition, or restrict a prior authorization if care is provided within 60 business days from the date the health care provider received approval of the prior authorization request.
(b) A health carrier conducting utilization review directly or indirectly through a contracted utilization review entity shall pay a health care provider at the contracted payment rate for a health care service provided by the health care provider per a prior authorization unless:
(1) The health care provider knowingly and materially misrepresented the health care service in the prior authorization request with the specific intent to deceive an obtain an unlawful payment from utilization review entity;
(2) The health care service was no longer a covered benefit on the day it was provided;
(3) The health care provider was no longer contracted with the patients' health insurance plan on the date the care was provided;
(4) The health care provider failed to meet the utilization review entity's timely filing requirements;
(5) The utilization review entity does not have liability for a claim; or
(6) The patient was no longer eligible for health care coverage on the day the care was provided.
IX. Nothing in this section shall be construed to contravene a covered person's right to external review under RSA 420-J:5-a.
6 Managed Care Law; Grievance Procedures. RSA 420-J:5, I(b) is repealed and reenacted to read as follows:
(b) For medical necessity appeals the health carrier conducting utilization review directly or indirectly through a contracted utilization review entity shall ensure that all appeals are reviewed by a provider. The provider shall:
(1) Be a practitioner in the same or similar specialty who typically treats the medical condition, performs the procedure, or provides the treatment at issue in the appeal. A practitioner is considered of the same specialty if he or she has similar credentials and licensure as those who typically treat the condition or health problem in question in the appeal. A practitioner is considered of a similar specialty if he or she has experience treating the same problems as those in question in the appeal, in addition to expertise treating similar complications of those problems; and
(2) Consider all known clinical aspects of the health care service under review, including but not limited to, a review of all pertinent medical records provided to the utilization review entity by the enrollee's health care provider, any relevant records provided to the utilization review entity by a health care facility, and any medical literature provided to the utilization review entity by the health care provider;
7 New Paragraph; Licensure of Medical Utilization Review Entities; Definitions. Amend RSA 420-E:1 by inserting after paragraph I-a the following new paragraph:
I-b. "Clinical review criteria" means the written policies, screening procedures, decision abstracts, clinical or medical protocols, practice guidelines, and any other written decision-making standards used by a utilization review entity to determine the medical necessity and appropriateness of health care services.
8 Licensure of Medical Utilization Review Entities; Definitions. RSA 420-E:1, III-a and IV are repealed and reenacted to read as follows:
IV. "Medical necessity" means health care services or products provided to an enrollee for the purpose of preventing, stabilizing, diagnosing, or treating an illness, injury, or disease or the symptoms of an illness, injury, or disease in a manner that is:
(a) Consistent with generally accepted standards of medical practice;
(b) Clinically appropriate in terms of type, frequency, extent, site, and duration;
(c) Demonstrated through scientific evidence to be effective in improving health outcomes;
(d) Representative of "best practices" in the medical profession; and
(e) Not primarily for the convenience of the enrollee or physician or other health care provider.
V. "Pre-service claim" means a request for prior authorization.
VI. "Prior authorization" means the process by which a utilization review entity determines the medical necessity of otherwise covered health care services prior to the rendering of such health care services. "Prior authorization" shall also include any responsive medical necessity determination that may occur pursuant to a utilization review entity’s requirement that a covered person or health care provider notify the health insurer or utilization review entity prior to providing a health care service.
VII. "Prior authorization determination" means a determination by a utilization review entity that a health care service has been reviewed pursuant to a pre-service claim and, based on the information provided, satisfies or does not satisfy the utilization review entity's requirements for medical necessity.
VIII. "Utilization review" means a set of formal techniques designed to monitor the use of or evaluate the clinical necessity, appropriateness, efficacy, or efficiency of health care services procedures, providers, or facilities, for the purpose of recommending or determining whether such services should be covered or provided by an insurer, nonprofit service organization, health maintenance organization, third-party administrator or employer. Techniques and methods may include, but are not limited to, ambulatory care review, case management, concurrent hospital review, discharge planning, pre-hospital admission certification, pre-inpatient service eligibility certification, prospective review, prior authorization, second opinion, or retrospective review.
9 Licensure of Medical Utilization Review Entities; Medical Director. Amend RSA 420-E:2-a to read as follows:
420-E:2-a Medical Director. Every medical utilization review entity licensed by the department under this chapter shall employ [a medical director] one or more medical directors licensed under RSA 329 or, in the case of a dental utilization review entity, [a dentist] licensed under RSA 317-A.
10 Licensure of Medical Utilization Review Entities; Minimum Standards; Prior Authorization. RSA 420-E:4, IV - VIII are repealed and reenacted to read as follows:
IV. Timeliness standards for processing prior authorization requests submitted electronically. Utilization review entities shall meet the following time frames for prior authorization determinations requested by participating providers or facilities that submit the prior authorization request through an electronic prior authorization process as designated by the health carrier:
(a) In non-urgent circumstances, utilization review entities requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination within 3 business days of obtaining all information necessary to make the determination.
(b) In urgent circumstances, utilization review entities requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination as expeditiously as the covered person’s medical condition requires, and not later than 48 hours after obtaining all information necessary to make the determination.
V. Timeliness standards for processing prior authorization requests submitted non-electronically. Utilization review entities shall meet the following time frames for prior authorization determinations requested by participating providers or facilities that submit the prior authorization request through a non-electronic prior authorization process as designated by the utilization review entity:
(a) In non-urgent circumstances, utilization review entities requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination within 6 business days of obtaining all information necessary to make the determination.
(b) In urgent circumstances, utilization review entities requiring prior authorization of a health care service shall approve or deny authorization and notify the covered person and the covered person's health care provider of the determination as expeditiously as the covered person’s medical condition requires, and not later than 72 hours after obtaining all information necessary to make the determination.
VI. In paragraphs III and IV, "all information necessary to make the determination" shall include the results of any face-to-face clinical evaluation or second opinion that may be required.
VII. Duration of an approval of a prior authorization request. Utilization review entities shall not revoke, limit, condition, or restrict a prior authorization if care is provided within 60 business days from the date the health care provider received approval of the prior authorization request.
VIII. The determination of a post service claim shall be made within 30 days of the date of filing. In the event the claimant fails to provide sufficient information to determine the claim, the carrier shall notify the claimant within 15 days as to what additional information is required to process the claim and the claimant shall be given at least 45 days to provide the required information. The 30-day period for claim determination shall be tolled until such time as the claimant submits the required information.
IX. Qualifications of reviewers making medical necessity determinations. A utilization review entity shall ensure that all medical necessity determinations are made by a qualified health care provider. A reviewing provider shall:
(a) Have appropriate medical and professional expertise and credentials to competently render the medical necessity determination;
(b) Be a practitioner in the same or similar specialty who typically treats the medical condition, performs the procedure, or provides the treatment under review. A practitioner is considered of the same specialty if he or she has similar credentials and licensure as those who typically treat the condition or health problem under review. A practitioner is considered of a similar specialty if he or she has experience treating the same problems as those in question, in addition to expertise treating similar complications of those problems;
(c) Make the medical necessity determination under the clinical direction of one of the utilization review entity’s own medical directors who is responsible for the review of health care services provided to covered persons who are residents of New Hampshire.
X. The manner and content of notification of claim benefit determinations shall be as follows:
(a) The licensee shall notify the claimant or claimant's representative in writing or electronically of the claim determination.
(b) If the claim benefit determination is a claim denial, the notice shall include:
(1) The specific reason or reasons for the determination and shall refer to the specific provision of the policy or plan on which the determination is based.
(2) A statement of the claimant's right or the right of the claimant's representative to access the internal grievance process and the process for obtaining external review.
(3) If the claim denial is based upon a determination that the claim is experimental or investigational or not medically necessary or appropriate:
(A) The name and credentials of the carrier or other licensed entity, the medical director, including board status and the state or states where the person is currently licensed. If the person making the claim denial is not the medical director but a designee, then the credentials, board status, and state or states of current license shall also be provided for that person; and
(B) An explanation of the clinical rationale for the determination. This explanation shall recite the terms of the plan or the policy or of any clinical review criteria or any internal rule, guideline, protocol, or other similar provision that was relied upon in making the claim denial and how these provisions apply to the claimant's specific medical circumstances.
(4) If an internal rule, guideline, protocol, or other similar provision was relied upon in making the benefit determination, a statement that such rule, guideline, protocol, or other similar provision was relied upon in making the claim denial.
(5) If clinical review criteria were relied upon in making the benefit determination, a statement that such clinical review criteria were relied upon in making the claim denial. The recitation of terms of the clinical review criteria required under RSA 420-E:4, V(b)(3)(B) shall be accompanied by the following notice: "The clinical review criteria provided to you are used by this plan to authorize, modify, or deny care for persons with similar illnesses or conditions. Specific care and treatment may vary depending on individual need and the benefits covered under your contract."
(6) In the case of a denial of a benefit concerning a claim involving urgent care or in the case of a denial of a claim related to continuation of an ongoing course of treatment for a person who has received emergency services, but who has not been discharged from a facility, a description of the expedited review applicable to such a claim shall be included in the determination. For all other claim benefit determinations, a description of the grievance process shall be specifically described in the determination.
XI. A licensee shall file with the department a copy of the materials designed to inform patients of the requirements of the utilization plan and the responsibilities and rights of patients under the plan and an acknowledgment that all applicable state and federal laws to protect the confidentiality of individual medical records are followed.
XII. In any request for a benefit determination, the claimant may authorize a representative to pursue the claim or benefit determination by submitting a written statement to the licensee that acknowledges the representation.
XIII. No fees or costs shall be assessed against a claimant related to a request for claim benefit determination.
11 Effective Date. This act shall take effect January 1, 2025.
24-3135
Revised 12/19/23
SB 561-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to prior authorizations for health care.
FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Revenue Fund(s) | General Fund Insurance Premium Tax | |||||
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund Various Government Funds | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None
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• Does this bill provide sufficient funding to cover estimated expenditures? [X] N/A • Does this bill authorize new positions to implement this bill? [X] No | ||||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
County Revenue | $0 | $0 | $0 | $0 | ||
County Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
METHODOLOGY:
This bill establishes criteria for prior authorization required by insurers offering managed care health benefit plans.
The Insurance Department indicates this bill sets new, more rigorous standards for prior authorization procedures conducted by health carriers and utilization review entities. The possible fiscal implications of this bill arise from the following:
- The bill would elevate the requirements with respect to the medical qualifications of persons making prior authorization approvals or denials on behalf of health carriers and utilization review entities,
- It would add an additional step to the prior authorization process, and
- It would shorten the time frames for health carriers and utilization review entities to make prior authorization determinations, both initially and on appeal.
The Department states these changes would put an incremental burden on health carriers and utilization review entities that could require health carriers and utilization review entities to hire or contract with additional staff. This would have an indeterminable incremental inflationary effect on the administrative costs of health carriers and utilization review entities and therefore, depending on market forces, possibly on the premiums charged by health carriers that conduct utilization review themselves or that contract with utilization review entities to perform their utilization review functions. This possible upward increment in premiums charged by health carriers that conduct utilization reviews or that make use of utilization review entities would, if actualized, lead to an indeterminable increase in premium tax revenue and, to the extent that these new standards would be adopted by self-funded group health plans that use prior authorization, an indeterminable upward increment in the cost of employee health insurance premiums paid by the state, counties, and local municipalities.
AGENCIES CONTACTED:
Insurance Department