[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3173 Engrossed in House (EH)]

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117th CONGRESS
  2d Session
                                H. R. 3173

_______________________________________________________________________

                                 AN ACT


 
     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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Improving Seniors' Timely Access to 
Care Act of 2022''.

SEC. 2. ESTABLISHING REQUIREMENTS WITH RESPECT TO THE USE OF PRIOR 
              AUTHORIZATION UNDER MEDICARE ADVANTAGE PLANS.

    (a) In General.--Section 1852 of the Social Security Act (42 U.S.C. 
1395w-22) is amended by adding at the end the following new subsection:
    ``(o) Prior Authorization Requirements.--
            ``(1) In general.--In the case of a Medicare Advantage plan 
        that imposes any prior authorization requirement with respect 
        to any applicable item or service (as defined in paragraph (5)) 
        during a plan year, such plan shall--
                    ``(A) beginning with the third plan year beginning 
                after the date of the enactment of this subsection--
                            ``(i) establish the electronic prior 
                        authorization program described in paragraph 
                        (2); and
                            ``(ii) meet the enrollee protection 
                        standards specified pursuant to paragraph (4); 
                        and
                    ``(B) beginning with the fourth plan year beginning 
                after the date of the enactment of this subsection, 
                meet the transparency requirements specified in 
                paragraph (3).
            ``(2) Electronic prior authorization program.--
                    ``(A) In general.--For purposes of paragraph 
                (1)(A), the electronic prior authorization program 
                described in this paragraph is a program that provides 
                for the secure electronic transmission of--
                            ``(i) a prior authorization request from a 
                        provider of services or supplier to a Medicare 
                        Advantage plan with respect to an applicable 
                        item or service to be furnished to an 
                        individual and a response, in accordance with 
                        this paragraph, from such plan to such provider 
                        or supplier; and
                            ``(ii) any attachment relating to such 
                        request or response.
                    ``(B) Electronic transmission.--
                            ``(i) Exclusions.--For purposes of this 
                        paragraph, a facsimile, a proprietary payer 
                        portal that does not meet standards specified 
                        by the Secretary, or an electronic form shall 
                        not be treated as an electronic transmission 
                        described in subparagraph (A).
                            ``(ii) Standards.--An electronic 
                        transmission described in subparagraph (A) 
                        shall comply with--
                                    ``(I) applicable technical 
                                standards adopted by the Secretary 
                                pursuant to section 1173; and
                                    ``(II) other requirements to 
                                promote the standardization and 
                                streamlining of electronic transactions 
                                under this part specified by the 
                                Secretary.
                            ``(iii) Deadline for specification of 
                        additional requirements.--Not later than July 
                        1, 2023, the Secretary shall finalize 
                        requirements described in clause (ii)(II).
                    ``(C) Real-time decisions.--
                            ``(i) In general.--Subject to clause (iv), 
                        the program described in subparagraph (A) shall 
                        provide for real-time decisions (as defined by 
                        the Secretary in accordance with clause (v)) by 
                        a Medicare Advantage plan with respect to prior 
                        authorization requests for applicable items and 
                        services identified by the Secretary pursuant 
                        to clause (ii) if such requests are submitted 
                        with all medical or other documentation 
                        required by such plan.
                            ``(ii) Identification of items and 
                        services.--
                                    ``(I) In general.--For purposes of 
                                clause (i), the Secretary shall 
                                identify, not later than the date on 
                                which the initial announcement 
                                described in section 1853(b)(1)(B)(i) 
                                for the third plan year beginning after 
                                the date of the enactment of this 
                                subsection is required to be announced, 
                                applicable items and services for which 
                                prior authorization requests are 
                                routinely approved.
                                    ``(II) Updates.--The Secretary 
                                shall consider updating the applicable 
                                items and services identified under 
                                subclause (I) based on the information 
                                described in paragraph (3)(A)(i) (if 
                                available and determined practicable to 
                                utilize by the Secretary) and any other 
                                information determined appropriate by 
                                the Secretary not less frequently than 
                                biennially. The Secretary shall 
                                announce any such update that is to 
                                apply with respect to a plan year not 
                                later than the date on which the 
                                initial announcement described in 
                                section 1853(b)(1)(B)(i) for such plan 
                                year is required to be announced.
                            ``(iii) Request for information.--The 
                        Secretary shall issue a request for information 
                        for purposes of initially identifying 
                        applicable items and services under clause 
                        (ii)(I).
                            ``(iv) Exception for extenuating 
                        circumstances.--In the case of a prior 
                        authorization request submitted to a Medicare 
                        Advantage plan for an individual enrolled in 
                        such plan during a plan year with respect to an 
                        item or service identified by the Secretary 
                        pursuant to clause (ii) for such plan year, 
                        such plan may, in lieu of providing a real-time 
                        decision with respect to such request in 
                        accordance with clause (i), delay such decision 
                        under extenuating circumstances (as specified 
                        by the Secretary), provided that such decision 
                        is provided no later than 72 hours after 
                        receipt of such request (or, in the case that 
                        the provider of services or supplier submitting 
                        such request has indicated that such delay may 
                        seriously jeopardize such individual's life, 
                        health, or ability to regain maximum function, 
                        no later than 24 hours after receipt of such 
                        request).
                            ``(v) Definition of real-time decision.--In 
                        establishing the definition of a real-time 
                        decision for purposes of clause (i), the 
                        Secretary shall take into account current 
                        medical practice, technology, health care 
                        industry standards, and other relevant 
                        information relating to how quickly a Medicare 
                        Advantage plan may provide responses with 
                        respect to prior authorization requests.
                            ``(vi) Implementation.--The Secretary shall 
                        use notice and comment rulemaking for each of 
                        the following:
                                    ``(I) Establishing the definition 
                                of a `real-time decision' for purposes 
                                of clause (i).
                                    ``(II) Updating such definition.
                                    ``(III) Initially identifying 
                                applicable items or services pursuant 
                                to clause (ii)(I).
                                    ``(IV) Updating applicable items 
                                and services so identified as described 
                                in clause (ii)(II).
            ``(3) Transparency requirements.--
                    ``(A) In general.--For purposes of paragraph 
                (1)(B), the transparency requirements specified in this 
                paragraph are, with respect to a Medicare Advantage 
                plan, the following:
                            ``(i) The plan, annually and in a manner 
                        specified by the Secretary, shall submit to the 
                        Secretary the following information:
                                    ``(I) A list of all applicable 
                                items and services that were subject to 
                                a prior authorization requirement under 
                                the plan during the previous plan year.
                                    ``(II) The percentage and number of 
                                specified requests (as defined in 
                                subparagraph (F)) approved during the 
                                previous plan year by the plan in an 
                                initial determination and the 
                                percentage and number of specified 
                                requests denied during such plan year 
                                by such plan in an initial 
                                determination (both in the aggregate 
                                and categorized by each item and 
                                service).
                                    ``(III) The percentage and number 
                                of specified requests submitted during 
                                the previous plan year that were made 
                                with respect to an item or service 
                                identified by the Secretary pursuant to 
                                paragraph (2)(C)(ii) for such plan 
                                year, and the percentage and number of 
                                such requests that were subject to an 
                                exception under paragraph (2)(C)(iv) 
                                (categorized by each item and service).
                                    ``(IV) The percentage and number of 
                                specified requests submitted during the 
                                previous plan year that were made with 
                                respect to an item or service 
                                identified by the Secretary pursuant to 
                                paragraph (2)(C)(ii) for such plan year 
                                that were approved (categorized by each 
                                item and service).
                                    ``(V) The percentage and number of 
                                specified requests that were denied 
                                during the previous plan year by the 
                                plan in an initial determination and 
                                that were subsequently appealed.
                                    ``(VI) The number of appeals of 
                                specified requests resolved during the 
                                preceding plan year, and the percentage 
                                and number of such resolved appeals 
                                that resulted in approval of the 
                                furnishing of the item or service that 
                                was the subject of such request, 
                                categorized by each applicable item and 
                                service and categorized by each level 
                                of appeal (including judicial review).
                                    ``(VII) The percentage and number 
                                of specified requests that were denied, 
                                and the percentage and number of 
                                specified requests that were approved, 
                                by the plan during the previous plan 
                                year through the utilization of 
                                decision support technology, artificial 
                                intelligence technology, machine-
                                learning technology, clinical decision-
                                making technology, or any other 
                                technology specified by the Secretary.
                                    ``(VIII) The average and the median 
                                amount of time (in hours) that elapsed 
                                during the previous plan year between 
                                the submission of a specified request 
                                to the plan and a determination by the 
                                plan with respect to such request for 
                                each such item and service, excluding 
                                any such requests that were not 
                                submitted with the medical or other 
                                documentation required to be submitted 
                                by the plan.
                                    ``(IX) The percentage and number of 
                                specified requests that were excluded 
                                from the calculation described in 
                                subclause (VIII) based on the plan's 
                                determination that such requests were 
                                not submitted with the medical or other 
                                documentation required to be submitted 
                                by the plan.
                                    ``(X) Information on each 
                                occurrence during the previous plan 
                                year in which, during a surgical or 
                                medical procedure involving the 
                                furnishing of an applicable item or 
                                service with respect to which such plan 
                                had approved a prior authorization 
                                request, the provider of services or 
                                supplier furnishing such item or 
                                service determined that a different or 
                                additional item or service was 
                                medically necessary, including a 
                                specification of whether such plan 
                                subsequently approved the furnishing of 
                                such different or additional item or 
                                service.
                                    ``(XI) A disclosure and description 
                                of any technology described in 
                                subclause (VII) that the plan utilized 
                                during the previous plan year in making 
                                determinations with respect to 
                                specified requests.
                                    ``(XII) The number of grievances 
                                (as described in subsection (f)) 
                                received by such plan during the 
                                previous plan year that were related to 
                                a prior authorization requirement.
                                    ``(XIII) Such other information as 
                                the Secretary determines appropriate.
                            ``(ii) The plan shall provide--
                                    ``(I) to each provider or supplier 
                                who seeks to enter into a contract with 
                                such plan to furnish applicable items 
                                and services under such plan, the list 
                                described in clause (i)(I) and any 
                                policies or procedures used by the plan 
                                for making determinations with respect 
                                to prior authorization requests;
                                    ``(II) to each such provider and 
                                supplier that enters into such a 
                                contract, access to the criteria used 
                                by the plan for making such 
                                determinations and an itemization of 
                                the medical or other documentation 
                                required to be submitted by a provider 
                                or supplier with respect to such a 
                                request; and
                                    ``(III) to an enrollee of the plan, 
                                upon request, access to the criteria 
                                used by the plan for making 
                                determinations with respect to prior 
                                authorization requests for an item or 
                                service.
                    ``(B) Option for plan to provide certain additional 
                information.--As part of the information described in 
                subparagraph (A)(i) provided to the Secretary during a 
                plan year, a Medicare Advantage plan may elect to 
                include information regarding the percentage and number 
                of specified requests made with respect to an 
                individual and an item or service that were denied by 
                the plan during the preceding plan year in an initial 
                determination based on such requests failing to 
                demonstrate that such individuals met the clinical 
                criteria established by such plan to receive such items 
                or services.
                    ``(C) Regulations.--The Secretary shall, through 
                notice and comment rulemaking, establish requirements 
                for Medicare Advantage plans regarding the provision 
                of--
                            ``(i) access to criteria described in 
                        subparagraph (A)(ii)(II) to providers of 
                        services and suppliers in accordance with such 
                        subparagraph; and
                            ``(ii) access to such criteria to enrollees 
                        in accordance with subparagraph (A)(ii)(III).
                    ``(D) Publication of information.--The Secretary 
                shall publish information described in subparagraph 
                (A)(i) and subparagraph (B) on a public website of the 
                Centers for Medicare & Medicaid Services. Such 
                information shall be so published on an individual plan 
                level and may in addition be aggregated in such manner 
                as determined appropriate by the Secretary.
                    ``(E) Medpac report.--Not later than 3 years after 
                the date information is first submitted under 
                subparagraph (A)(i), the Medicare Payment Advisory 
                Commission shall submit to Congress a report on such 
                information that includes a descriptive analysis of the 
                use of prior authorization. As appropriate, the 
                Commission should report on statistics including the 
                frequency of appeals and overturned decisions. The 
                Commission shall provide recommendations, as 
                appropriate, on any improvement that should be made to 
                the electronic prior authorization programs of Medicare 
                Advantage plans.
                    ``(F) Specified request defined.--For purposes of 
                this paragraph, the term `specified request' means a 
                prior authorization request made with respect to an 
                applicable item or service.
            ``(4) Enrollee protection standards.--For purposes of 
        paragraph (1)(A)(ii), the Secretary shall, through notice and 
        comment rulemaking, specify the following enrollee protection 
        standards with respect to the use of prior authorization by 
        Medicare Advantage plans for applicable items and services:
                    ``(A) Adoption of transparent prior authorization 
                programs developed in consultation with enrollees and 
                with providers and suppliers with contracts in effect 
                with such plans for furnishing such items and services 
                under such plans;
                    ``(B) Allowing for the waiver or modification of 
                prior authorization requirements based on the 
                performance of such providers and suppliers in 
                demonstrating compliance with such requirements, such 
                as adherence to evidence-based medical guidelines and 
                other quality criteria; and
                    ``(C) Conducting annual reviews of such items and 
                services for which prior authorization requirements are 
                imposed under such plans through a process that takes 
                into account input from enrollees and from providers 
                and suppliers with such contracts in effect and is 
                based on consideration of prior authorization data from 
                previous plan years and analyses of current coverage 
                criteria.
            ``(5) Applicable item or service.--For purposes of this 
        subsection, the term `applicable item or service' means, with 
        respect to a Medicare Advantage plan, any item or service for 
        which benefits are available under such plan, other than a 
        covered part D drug.
            ``(6) Reports to congress.--
                    ``(A) GAO.--Not later than the end of the fourth 
                plan year beginning on or after the date of the 
                enactment of this subsection, the Comptroller General 
                of the United States shall submit to Congress a report 
                containing an evaluation of the implementation of the 
                requirements of this subsection and an analysis of 
                issues in implementing such requirements faced by 
                Medicare Advantage plans.
                    ``(B) HHS.--Not later than the end of the fifth 
                plan year beginning after the date of the enactment of 
                this subsection, and biennially thereafter through the 
                date that is 10 years after such date of enactment, the 
                Secretary shall submit to Congress a report containing 
                a description of the information submitted under 
                paragraph (3)(A)(i) during--
                            ``(i) in the case of the first such report, 
                        the fourth plan year beginning after the date 
                        of the enactment of this subsection; and
                            ``(ii) in the case of a subsequent report, 
                        the 2 plan years preceding the year of the 
                        submission of such report.''.
    (b) Ensuring Timely Responses for All Prior Authorization Requests 
Submitted Under Part C.--Section 1852(g) of the Social Security Act (42 
U.S.C. 1395w-22(g)) is amended--
            (1) in paragraph (1)(A), by inserting ``and in accordance 
        with paragraph (6)'' after ``paragraph (3)'';
            (2) in paragraph (3)(B)(iii), by inserting ``(or, subject 
        to subsection (o), with respect to prior authorization requests 
        submitted on or after the first day of the third plan year 
        beginning after the date of the enactment of the Improving 
        Seniors' Timely Access to Care Act of 2022, not later than 24 
        hours)'' after ``72 hours''.
            (3) by adding at the end the following new paragraph:
            ``(6) Timeframe for response to prior authorization 
        requests.--Subject to paragraph (3) and subsection (o), in the 
        case of an organization determination made with respect to a 
        prior authorization request for an item or service to be 
        furnished to an individual submitted on or after the first day 
        of the third plan year beginning after the date of the 
        enactment of this paragraph, the organization shall notify the 
        enrollee (and the physician involved, as appropriate) of such 
        determination no later than 7 days (or such shorter timeframe 
        as the Secretary may specify through notice and comment 
        rulemaking, taking into account enrollee and stakeholder 
        feedback) after receipt of such request.''.

SEC. 3. FUNDING.

    The Secretary of Health and Human Services shall provide for the 
transfer, from the Federal Hospital Insurance Trust Fund established 
under section 1817 of the Social Security Act (42 U.S.C. 1395i) and the 
Federal Supplementary Medical Insurance Trust Fund established under 
section 1841 of such Act (42 U.S.C. 1395t) (in such proportion as 
determined appropriate by the Secretary) to the Centers for Medicare & 
Medicaid Services Program Management Account, of $25,000,000 for fiscal 
year 2022, to remain available until expended, for purposes of carrying 
out the amendments made by this Act.

            Passed the House of Representatives September 14, 2022.

            Attest:

                                                                 Clerk.
117th CONGRESS

  2d Session

                               H. R. 3173

_______________________________________________________________________

                                 AN ACT

     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.