[House Report 117-696]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-696
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
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IMPROVING SENIORS' TIMELY ACCESS TO CARE ACT
OF 2022
_______
December 30, 2022.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Neal, from the Committee on Ways and Means, submitted the following
R E P O R T
[To accompany H.R. 4847]
[Including cost estimate of the Congressional Budget Office]
The Committee on Ways and Means, to whom was referred the
bill (H.R. 4847) 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, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
I. SUMMARY AND BACKGROUND...........................................6
A. Purpose and Summary................................. 6
B. Background and Need for Legislation................. 6
C. Legislative History................................. 9
II. EXPLANATION OF THE BILL.........................................10
A. The Improving Seniors' Timely Access to Care Act of
2022............................................... 10
III. VOTES OF THE COMMITTEE..........................................17
IV. BUDGET EFFECTS OF THE BILL......................................17
A. Committee Estimate of Budgetary Effects............. 17
B. Statement Regarding New Budget Authority and Tax
Expenditures Budget Authority...................... 18
C. Cost Estimate Prepared by the Congressional Budget
Office............................................. 18
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE......19
A. Committee Oversight Findings and Recommendations.... 19
B. Statement of General Performance Goals and
Objectives......................................... 19
C. Information Relating to Unfunded Mandates........... 19
D. Congressional Earmarks, Limited Tax Benefits, and
Limited Tariff Benefits............................ 19
E. Duplication of Federal Programs..................... 19
F. Hearings............................................ 19
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED...........20
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
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 health claims attachment (as
defined for purposes of section 1173(a)(2)(B))
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) any 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 any
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, broken
down by each applicable item and
service and broken down 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 all 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.--The Secretary of Health
and Human Services shall, through notice and comment
rulemaking, specify requirements with respect to the use of
prior authorization by Medicare Advantage plans for applicable
items and services to ensure--
``(A) that such plans adopt 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) that such programs allow 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) that such plans conduct 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, 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, such determination shall be made
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.''.
(c) 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
$15,000,000 for fiscal year 2022, to remain available until expended,
for purposes of carrying out the amendments made by this Act.
I. SUMMARY AND BACKGROUND
A. Purpose and Summary
The bill, H.R. 8487, the ``Improving Seniors' Timely Access
to Care Act of 2022,'' as ordered reported by the Committee on
Ways and Means on July 27, 2022, modifies Section 1852 of the
Social Security Act (SSA; 42 U.S.C. 1395w-22) by adding a new
subsection that would require Medicare Advantage (MA) plans to
establish electronic prior authorization programs, meet
specified transparency requirements, meet enrollee protection
standards, and would require the Secretary of the Department of
Health and Human Services (HHS) Secretary to promulgate rules
and publish reports. The Medicare Payment Advisory Commission
(MedPAC) and the Government Accountability Office (GAO) would
also be required to publish reports.
B. Background and Need for Legislation
MA is a private plan option for Medicare beneficiaries that
covers all traditional Medicare benefits, but coinsurance,
deductibles, and benefit management tools may be different than
in traditional Medicare. As required by statute, MA plans must
cover the services included under traditional Medicare (Parts A
and B).\1\ The Centers for Medicare & Medicaid Services (CMS)
stipulates that,``plans may not impose limitations, waiting
periods or exclusions from coverage due to pre-existing
conditions that are not present in original Medicare.''\2\ MA
plans manage the provision of Medicare benefits to enrollees,
however, and while many MA plans cover additional
``supplemental'' benefits beyond those in traditional Medicare,
they also may impose additional requirements like referrals or
prior authorization before paying for the services.
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\1\Social Security Act Sec. 1852 Benefits and Beneficiary
Protections.
\2\Medicare Managed Care Manual Chapter 4--Benefits and Beneficiary
Protections, Ctrs. For Medicare & Medicaid Servs. (Apr. 22, 2016),
https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/
Downloads/mc86c04.pdf.
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Prior authorization is widely used in MA--nearly all (99
percent) Medicare beneficiaries enrolled in MA plans have a
plan that uses prior authorization as a tool.\3\ The most
common services subject to prior authorization in MA are high-
cost services (i.e., durable medical equipment, skilled nursing
facility stays, Part B drugs, and inpatient hospital care);
preventive services are least likely to have prior
authorizations.\4\ In contrast, traditional Medicare generally
does not use prior authorization for services.\5\
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\3\Meredith Freed et al., Medicare Advantage in 2021:Premiums,Cost
Sharing, Out-of-Pocket Limits and Supplemental Benefits, Kaiser Fam.
Found (June 21, 2021), https://www.kff.org/medicare/issue-brief/
medicareadvantage-in-2021-premiums-cost-sharing-out-of-pocket-limits-
and-supplemental-benefits/.
\4\Gretchen Jacobson & Tricia Neuman, Prior Authorization in
Medicare Advantage Plans: How Often Is It Used?, Kaiser Fam. Found.
(Oct. 24, 2018), https://www.kff.org/medicare/issue-brief/prior-
authorization-in-medicare-advantage-plans-how-often-is-it-used/.
\5\Traditional Medicare uses prior authorization in rare and
specific circumstances for services with high rates of inappropriate
use, namely repetitive, scheduled, non-emergent ambulance transport,
the use of Botox injections and rhinoplasty, and certain power
wheelchairs and orthosis. See Prior Authorization and Pre-Claim Review
Initiatives, Ctrs. For Medicare & Medicaid Servs. (Apr. 15, 2022),
https://www.cms.gov/research-statistics-data-systems/medicare-fee-serv
ice-compliance-programs/prior-authorization-and-pre-claim-review-
initiatives/prior-authorization-certain-hospital-outpatient-department-
opd-services.
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MA plans use prior authorization to give a health care
provider advance approval of payment for the service--
ultimately for the purposes of reducing inappropriate
utilization of health care services.\6\ Insurers contend that
the primary goal of prior authorization is to promote evidence-
based care, protect patient safety, and reduce unnecessary
spending.\7\ In 2018, 95 percent of all prior authorizations in
MA were approved, and GAO has previously recommended continued
use of prior authorization in the traditional Medicare program
for specified programs related to high unnecessary utilization
and high improper payment rates.\8\ \9\
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\6\Kaye Pestaina & Karen Pollitz, Examining Prior Authorization in
Health Insurance, Kaiser Fam. Found. (May 20, 2022), https://
www.kff.org/policy-watch/examining-prior-authorization-in-health-
insurance/.
\7\Key Results of Industry Survey on Prior Authorization, AHIP at
4, https://www.ahip.org/docu ments/Prior-Authorization-Survey-
Results.pdf (last visited July 21, 2022).
\8\Testimony of Erin Bliss, Assistant Inspector General Office of
Evaluation and Inspections Office of Inspector General Department of
Health and Human Services, Before the United States House Committee on
Energy and Commerce Subcommittee on Oversight and Investigations, House
Committee. On Energy & Commerce at3 (June 28, 2022), https://
energycommerce.house.gov/sites/democrats.energycommerce.house.gov/
files/documents/Witness% 20Testimony_Bliss_OI_2022.06.28_1.pdf.
\9\Medicare: CMS should take actions to continue prior
authorization efforts to reduce spending, United States Government
Accountability Office. https://www.gao.gov/products/gao-18-341
(retrieved December 19, 2022).
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MA plans establish criteria for prior authorization, which
must follow the medical necessity requirements and coverage
standards under traditional Medicare. Insurers report that they
base prior authorization criteria on peer-reviewed evidence-
based programs, federal studies and guidelines, internal plan
data, and proprietary software, among others. Critics, however,
contend that these prior authorization criteria lack
transparency.\10\ \11\
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\10\Key Results of Industry Survey on Prior Authorization, AHIP at
7, https://www.ahip.org/doc uments/Prior-Authorization-Survey-
Results.pdf (last visited July 21, 2022).
\11\A. Mark Fendrick, Reframe The Role Of Prior Authorization To
Reduce Low-Value Care, Health Affairs (July 11, 2022), https://
www.healthaffairs.org/do/10.1377/fore front.20220708.54139/.
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Data on the use of organizational determinations (which
include prior authorizations per CMS regulations), how
frequently they are used, and under what circumstances are not
collected by the HHS Secretary under current law. While CMS
does not currently collect plan-specific data on prior
authorization denials, appeals, or data on what items and
services are experiencing prior authorization, data on appeals
and denials are collected and publicly available for health
insurance plans in the Health Insurance Marketplaces.\12\ CMS
does not collect data on patient experiences with prior
authorization.\13\
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\12\Health Insurance Exchange Public Use Files (Exchange PUFs),
Ctrs. For Medicare & Medicaid Servs., https://www.cms.gov/CCIIO/
Resources/Data-Resources/marketplace-puf (last visited July 21, 2022).
\13\Gretchen Jacobson & Tricia Neuman, Prior Authorization in
Medicare Advantage Plans: How Often Is It Used?, Kaiser Fam. Found.
(Oct. 24, 2018), https://www.kff.org/medicare/issue-brief/prior-
authorization-in-medicare-advantage-plans-how-often-is-it-used/.
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The goal of prior authorization is to ensure payments are
made for only medically appropriate and covered services;
however, it can also be burdensome for both beneficiaries and
health care providers, creating barriers to care. Physicians
report that prior authorizations impact the quality of care,
causing harmful delays in needed health care services.
Prior authorizations can also result in inappropriate
denials of care. The U.S. Department of Health and Human
Services (HHS) Office of Inspector General (OIG) has studied
prior authorization given a potential incentive for MA plans to
deny access to services to increase profits.\14\ One HHS OIG
study found that 13 percent of prior authorizations led to
denials that in fact met Medicare coverage rules.\15\ HHS OIG
determined that these inappropriate denials were most often a
result of: 1) MA plans using clinical criteria that were not
included in the traditional Medicare coverage rules; and 2) MA
plans claiming that they did not have sufficient documentation
to approve the claim (HHS OIG found sufficient documentation in
the patient's medical record to support coverage of the
service).\16\ OIG also found that ``denied requests that meet
Medicare coverage rules may prevent or delay beneficiaries from
receiving medically necessary care and can burden providers.''
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\14\See Office of Inspector General, Some Medicare Advantage
Organization Denials of Prior Authorization Requests Raise Concerns
About Beneficiary Access to Medically Necessary Care, U.S. Dept. of
Health & Human Servs. (Apr. 2022), https://oig.hhs.gov/oei/reports/OEI-
18-00260.pdf.
\15\Office of Inspector General, Some Medicare Advantage
Organization Denials of Prior Authorization Requests Raise Concerns
About Beneficiary Access to Medically Necessary Care, U.S. Dept. of
Health & Human Servs. at 9 (Apr. 2022), https://oig.hhs.gov/oei/
reports/OEI-18-00260.pdf.
\16\Id.
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CMS audits of MA plans, for example, have found persistent
challenges with inappropriate denials of services.\17\ If a
service is denied through prior authorization, the beneficiary
or health care provider can appeal the plan decision with the
plan through an independent review entity. The beneficiary also
retains the ability to appeal through the administrative law
judge or federal court processes.\18\ HHS OIG found that when
denials were appealed, the denial was often overturned: MA
plans overturned 75 percent of their initial denials upon
appeal from 2014 to 2016, and the independent review entities
overturned even more denials. Still, beneficiaries often do not
appeal prior authorization denials. Between 2014 and 2016,
beneficiaries only appealed one percent of the initial
denials.\19\
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\17\See Office of Inspector General, Medicare Advantage Appeal
Outcomes and Audit Findings Raise Concerns About Service and Payment
Denials, U.S. Dept. Of Health & Human Servs. (Sept. 2018), https://
oig.hhs.gov/oei/reports/oei-09-16-00410.pdf.
\18\See generally Parts C & D Enrollee Grievances, Organization/
Coverage Determinations, and Appeals Guidance, CTRS. FOR MEDICARE &
MEDICAID SERVS. (Jan. 1, 2020), https://www.cms.gov/Medicare/Appeals-
and-Grievances/MMCAG/Downloads/Parts-C-and-D-Enrollee-Grievances-
Organization-Coverage-Determinations-and-Appeals-Guidance.pdf.
\19\Office of Inspector General, Medicare Advantage Appeal Outcomes
and Audit Findings Raise Concerns About Service and Payment Denials,
U.S. Dept. of Health & Human Servs. at 7 (Sept. 2018), https://
oig.hhs.gov/oei/reports/oei-09-16-00410.pdf.
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In addition to potential delays in care delivery,
physicians report that prior authorization creates additional
administrative burdens, taking resources away from direct
patient care. Specifically,a 2021 AMA survey found 88 percent
of physicians experienced a high or extremely high burden with
conducting prior authorizations.\20\ In addition, 40 percent of
physicians reported that they have a staff member dedicated
just to prior authorizations and that they complete 41 prior
authorizations per physician per week on average.\21\ One study
of physician practices quantified the cost to be $6.72 for each
prior authorization.\22\
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\20\2021 AMA prior authorization (PA) physician survey, Am. Med.
Assoc. (2022), https://www.ama-assn.org/system/files/prior-
authorization-survey.pdf.
\21\Id.
\22\Ryan P. Carlisle et al., Administrative Burden and Costs of
Prior Authorizations in a Dermatology Department, 156:10 JAMA
Dermatology at 1074 (2020) https://doi.org/10.1001/
jamadermatol.2020.1852.
---------------------------------------------------------------------------
Unlike in Medicare Part D, MA plans are not required to use
electronic prior authorization systems and often rely on
manual, labor-intensive prior authorization communications.
These manual processes can exacerbate delays and administrative
burdens for providers. A recent Council for Affordable Quality
Healthcare (CAQH) report found that only 26 percent of prior
authorizations were fully electronic, whereas 35 percent were
fully manual (e.g., phone, mail, fax).\23\ CAQH further
estimated that transitioning to a fully electronic prior
authorization system would save over $400 million annually.\24\
---------------------------------------------------------------------------
\23\2021 CAQH Index: Working Together: Advances in Automation
During Unprecedented Times, Council for Affordable Quality Healthcare
at 18 (2022), https://www.caqh.org/sites/default/files/explorations/
index/2021-caqh-index.pdf.
\24\Id. at 19.
---------------------------------------------------------------------------
C. Legislative History
Background
H.R. 8487 was introduced on July 26, 2022 and was referred
to the Committee on Ways and Means and additionally the
Committee on Energy and Commerce.
Committee Hearings
On February 2, 2022, the Committee on Ways and Means held a
full committee hearing on America's Mental Health Crisis. The
hearing focused on challenges in accessing mental health care
in America. There was a substantive discussion about the
barriers to mental health care services because of
administrative hurdles, more specifically prior authorizations,
and evidence was presented indicating that removing prior
authorizations led to improved patient outcomes. Another
witness stressed the importance of reducing administrative
barriers to care like prior authorization and impediments for
mental health providers receiving payment.
On February 3, 2022, the Committee on Ways and Means
Subcommittee on Health held a hearing on Bridging Health Equity
Gaps for People with Disabilities and Chronic Conditions. The
hearing focused on challenges individuals with disabilities and
other health conditions face when accessing the health system.
The hearing included a discussion about how administrative
barriers to care that affects patients' health and access to
care.
On March 2, 2022, the Committee on Ways and Means held a
full committee hearing on Substance Use, Suicide Risk, and the
American Health System. The hearing focused on challenges to
substance abuse and mental health treatment and examined
suicide risk. During the hearing, there was a discussion of
prior authorization as a barrier to accessing substance use
disorder treatment.
On June 8, 2022, the Committee on Ways and Means held a
full committee hearing on the President's Proposed Fiscal Year
2022 Budget with Department of Health and Human Services
Secretary Becerra. The hearing focused on the HHS Budget and
opportunities to improve the health care system, including the
Medicare program. During the hearing, Representative DelBene
(D-WA) advocated for electronic and streamlined prior
authorization processes in Medicare Advantage to prevent
unnecessary delays in care.
Committee Action
The Committee on Ways and Means marked up H.R. 8487, the
``Improving Seniors' Timely Access to Care Act,'' on July 27,
2022, and by voice vote ordered the bill favorably reported,
with a quorum being present.
II. EXPLANATION OF THE BILL
A. The Improving Seniors' Timely Access to Care Act of 2022
CURRENT LAW
Medicare Advantage (MA or Part C), an alternative to
original (Parts A and B) fee-for-service (FFS) Medicare, allows
beneficiaries to choose to receive their Medicare covered
benefits through a private plan. Under contracts with the
Secretary of Health and Human Services (HHS Secretary), MA
plans agree to provide the Medicare covered benefits (and may
also provide Part D outpatient prescription drug benefits, as
well as other supplemental benefits) to beneficiaries who
enroll in their plan, in exchange for a capitated or per person
monthly payment.
In general, for Medicare to pay for an item or service, it
must meet several criteria: it must be eligible for one of the
defined Medicare benefit categories (e.g., hospital care,
physicians' services); it must not be an item that is
specifically statutorily excluded (e.g., hearing aids); and it
must be ``reasonable and necessary for the diagnosis or
treatment of illness or injury, or to improve the functioning
of a malformed body member.'' Alternatively, an item or service
may be specified in statute as being covered by Medicare even
if it would not otherwise meet the above criteria (e.g.,
preventive services).
Exactly which specific items and services are considered
``reasonable and necessary'' and covered by the Medicare
program can be determined either nationally or locally. A
National Coverage Determination (NCD) is a policy developed by
the HHS Secretary that a particular item or service is
reasonable and necessary, and therefore covered by Medicare
nationally. In the absence of an NCD, or in concert with one,
Medicare administrative contractors (MACs) may issue local
coverage determinations (LCDs) that establish whether a
particular item or service is reasonable and necessary, and
therefore covered by Medicare within the MAC's service area.
In general, the coverage criteria including the national
and local determinations that apply to original Medicare also
apply to MA plans. However, there are situations where MA plans
are allowed to standardize benefits or delay implementation.
For example, if an MA plan service area spans more than one MAC
region and therefore is subject to more than one coverage
determination, the MA plan can choose to standardize its
coverage policy based on the coverage determination that is
most beneficial to the enrollee.
MA plans are paid a per-person monthly (capitated) amount
by Medicare. Payments to plans are risk adjusted to take into
account the demographic and health history of those who
actually enroll in the plan.
Since MA plans are paid on a capitated basis and assume
risk for expenditures that exceed their payment, there may be
an incentive to constrain costs by providing less care or more
efficient health care. For example, MA plan enrollees may be
required to see a primary care physician before being referred
to a specialist. Enrollees may be required to try a less
expensive Part B drug or service before being covered for a
more expensive one (i.e., step therapy). Enrollees and their
physicians may also be required to seek a prior authorization
from the plan before receiving an item or service, as discussed
below. Additionally, plans may negotiate with providers of
health care services or suppliers to reduce the prices they pay
to those entities that are part of their contracted network.
Prior authorization for MA plans is described by HHS as a
``process through which a physician or other health care
provider is required to obtain advance approval from the plan
that payment will be made for a service or item furnished to an
enrollee. Unless specified otherwise with respect to a
particular item or service, the enrollee is not responsible for
obtaining (prior) authorizations.'' To satisfy a prior
authorization requirement, a physician or healthcare provider
must demonstrate compliance with coverage and payment rules and
receive a determination from the MA plan before an item or
service is provided to the beneficiary, rather than after. If a
prior authorization is denied (i.e., the MA organizational
determination was to deny the request), an individual, or his
or her health care provider, may appeal the decision through a
process that allows for multiple levels of review or appeal.
MA organizations are required to establish procedures for
making determinations regarding whether an enrollee is entitled
to receive an item or service, and the amount of cost sharing
required, if any. MA organizations also are required to have
procedures for making timely organizational determinations,
meaning prior authorization adjudications. Determinations and
appeals (i.e. reconsiderations of the determination) are
required, per regulation, to be done within 14 days from the
receipt of the organizational determination. The plan can
extend this timeline if it needs additional information and
must notify the beneficiary as to the reason for the timeline
extension. Determinations may be done on an expedited basis at
an enrollee's or physician's request, if making a determination
or reconsideration under a normal timeframe could seriously
jeopardize the life or health of the enrollee or the enrollee's
ability to retain maximum function. Under an expedited
determination or reconsideration, the plan is required to
notify the enrollee and physician by a time determined by the
HHS Secretary, but not later than 72 hours from receipt of the
request.
Medicare statutes specify requirements and limitations with
respect to MA plans' use of prior authorizations. Medicare
Advantage plans, for example, are prohibited from imposing
prior authorization or other utilization management
requirements with respect to COVID-19 tests and test-related
services during the public health emergency. Also, regardless
of any prior authorization policy, MA plans are required to
provide coverage for emergency services that meet the statutory
definition of an emergency. In addition to coverage related
requirements, MA plans are also subject to certain statutory
disclosure requirements. Plans are required to disclose
specified information, in a clear, accurate, and standardized
format, to each enrollee at the time of enrollment and yearly
thereafter, including ``rules regarding prior authorization or
other review requirements that could result in nonpayment.'' At
the same time, plans are also required to disclose all plan
appeal or grievance rights and procedures.
REASONS FOR CHANGE
Streamlining and modernizing prior authorizations improves
efficiencies in the health care system, reducing unnecessary
bureaucracy for patients, providers, and plans. This bill will
lower barriers to patient care, reduce paperwork burdens for
patients and providers, and improve transparency.
To make the prior authorization process more efficient,
this bill would require electronic prior authorization and
speed up the timelines for prior authorization decisions. The
bill would require the Secretary to promulgate rules by June 1,
2023 on the use of electronic prior authorizations, moving
prior authorizations into the electronic age instead of the
current time-consuming, inefficient practices of phones, fax,
and paper transactions. For routinely approved services, MA
plans would be required to make real-time decisions; exceptions
must be determined within 24 hours for expedited requests or 72
hours for traditional requests. For non-routinely approved
decisions, plans must decide prior authorizations in seven days
for traditional requests and 24 hours for expedited requests
(the current requirement is 14 days and 72 hours,
respectively).
The bill also would require additional transparency
provisions that require MA organizations to provide detailed
data on prior authorization use and denials on the plan level,
and to disclose information about the criteria that MA plans
use when making prior authorization decisions to Medicare
beneficiaries, providers, and suppliers, including
determinations made using decision-support technology,
artificial intelligence, machine-learning technology, clinical
decision-making technology, and other technologies.
EXPLANATION OF PROVISIONS
Section 1. Short title
The short title of the legislation is the Improving
Seniors' Timely Access to Care Act of 2022.
Section 2. Establishing requirements with respect to the use of prior
authorization under Medicare Advantage plans
The provision would amend Social Security Act Section 1852
by adding a new subsection that would require MA plans to
establish electronic prior authorization programs, meet
specified transparency requirements, meet enrollee protection
standards, and would require the HHS Secretary to promulgate
rules and publish reports. MedPAC and GAO would also be
required to publish reports.
Electronic Prior Authorization Program
MA plans that impose prior authorization requirements for
any item or service available under the plan (except for a Part
D drug) would be required to establish an electronic prior
authorization program starting the third plan year beginning
after the date of enactment. The electronic prior authorization
program would be required to provide for both the secure
electronic transmission of a prior authorization request and
any health claims attachments from a provider of services or a
supplier to an MA plan, and also the response from the plan.
The provision would not allow facsimiles, proprietary payer
portals that do not meet standards specified by the HHS
Secretary, nor electronic forms to qualify as secure electronic
transmissions.
The MA plans' electronic prior authorization programs would
be required to comply with applicable technical standards
adopted by the HHS Secretary pursuant to the Social Security
Act Section 1173, Standards for Information Transactions and
Data Elements, and any other requirements specified by the
Secretary to promote the standardization and streamlining of
electronic transactions, as finalized by July 1, 2023.
Except for extenuating circumstances, the electronic prior
authorization program would require MA plans to provide ``real-
time decisions'' with respect to specified prior authorization
requests, if the requests were submitted with all medical or
other documentation required by the plan. The HHS Secretary
would be required to define real-time decisions, taking into
account current medical practice, technology, health care
industry standards, and other relevant information relating to
how quickly the MA plan may provide responses. The Committee
expects real-time to be as quickly as technologically and
logistically possible so that the decision reaches the treating
provider and patient quickly.
Items and services subject to real-time decisions would be
those that the HHS Secretary identified as routinely approved
by MA plans; the HHS Secretary would be required to announce
those items and services by no later than the first Monday of
April in the second plan year after enactment. The HHS
Secretary would be required to consider updating the list of
items and services subject to real-time decisions no less
frequently than biennially; the update would be based on
information provided through new transparency requirements, if
that information is available and practicable to use, and any
other information the HHS Secretary determines appropriate. The
HHS Secretary would be required to announce the update by not
later than the first Monday in April prior to the plan year to
which it applies. Further, the HHS Secretary would be required
to issue a request for information to initially identify items
and services subject to real-time decisions.
In extenuating circumstances, an electronic prior
authorization request that would otherwise be subject to a
``real-time decision'' could be exempted from the requirement
for a ``real-time decision;'' an MA plan, in lieu of providing
a ``real-time decision'' would be able to delay a decision, as
specified by the HHS Secretary, provided that the decision was
provided no later than 72 hours after receipt, or 24 hours
after receipt if the provider or supplier submitting the
request had indicated that a 72 hour delay could seriously
jeopardize the individuals life, health, or ability to regain
maximum function.
The HHS Secretary would be required to use notice and
comment rulemaking when establishing and updating the
definition of real-time decision, and when initially
identifying applicable items and services subject to real-time
decisions and for updating that list of items and services.
Transparency Requirements
Beginning with the fourth plan year starting after the date
of enactment, MA plans would be required to submit the
following information to the HHS Secretary annually:
1. A list of all applicable items and services that
were subject to a prior authorization requirement
during the previous plan year.
2. The percentage and number of specified requests
approved during the previous plan year by the plan in
an initial determination and the percentage and number
of specified requests denied during the previous plan
year in an initial determination, both in the aggregate
and by item and service. A specified request would be
defined as a prior authorization request made with
respect to an applicable item or service.
3. The percentage and number of specified requests
submitted during the previous plan year that were
subject to real-time decisions, and the percentage and
number of such requests that were subject to an
exception to the real-time decision due to extenuating
circumstances.
4. The percentage and number of specified requests
submitted during the previous plan year that were
subject to real-time decisions and were approved, by
item and service.
5. The percentage and number of specified requests
that were denied during the previous plan year by the
plan in the initial determination and that were
subsequently appealed.
6. 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 item or service, broken
down by each applicable item and service, and broken
down by each level of appeal, including judicial
review.
7. 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 year through the use of decision
support technology, artificial intelligence technology,
machine-learning technology, clinical decision-making
technology, or any other technology specified by the
HHS Secretary. The Committee considers that Section 2
(a)(o)(3)(A)(VII) of H.R. 8487 would maintain the
current protocol as established under the Medicare
Managed Care and Part D Appeals Guidance Section 40.9
that requires a physician or other appropriate
healthcare professional to review an initial
determination following a plan's decision to partially
or fully deny coverage.
8. 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, excluding any
requests that were not submitted with the medical or
other documentation required by the plan.
9. The percentage and number of specified requests
where the requests were not submitted with the medical
or other documentation required by the plan, and
therefore, had been excluded from the calculation of
the average and median time that had elapsed between
submission of the specified request and the
determination by the plan, described in requirement
number 8.
10. 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 that had been approved by
the plan through a prior authorization request, the
provider of services or supplier furnishing the item or
service determined that a different or additional item
or service was medically necessary, including a
specification of whether the MA plan subsequently
approved the furnishing of the different or additional
item or service.
11. A disclosure and description of any technology
used during the previous year in making determinations
of specified requests including decision support
technology, artificial intelligence technology,
machine-learning technology, clinical decision-making
technology, or any other technology specified by the
Secretary, as described in requirement number 7.
12. The number of grievances received by the MA plan
during the previous plan year that were related to a
prior authorization requirement.
13. Such other information as the HHS Secretary
determines appropriate.
In addition to the information MA plans are required to
submit under the transparency requirements, an MA plan would
have the option to submit certain additional information to the
HHS Secretary. Specifically, an MA plan would be able to submit
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 failing to
demonstrate that the individuals met the clinical criteria
established by the plan to receive the item or service.
MA plans would be required to provide additional
information to prospective network providers or suppliers,
contracted providers or suppliers, and enrollees. Specifically,
MA plans would be required to provide a list of all applicable
items and services subject to a prior authorization requirement
under the plan during the previous plan year along with any
policies or procedures used by the plan for making prior
authorization determinations to each provider or supplier
seeking to enter into a contract with the plan. Additionally,
the MA plan would be required to provide access to the criteria
used for making prior authorization 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 to each provider or supplier that enters into a
contract with the plan. Lastly, the MA plan would be required
to provide access to the criteria used by the plan for making
determinations.
Through notice and comment rule making, the HHS Secretary
would be required to establish requirements for MA plans
regarding providing access to coverage criteria to providers of
services and suppliers, and enrollees. The HHS Secretary would
be required to publish all the information received from plans
as part of the Transparency Requirements and the optional
additional information pertaining to prior authorization
requests denied because the individual failed to meet clinical
criteria established by the plan. The information would be
required to be published on a public website of the Centers for
Medicare & Medicaid Services. The information would be required
to be published on the individual plan level and could, in
addition, be aggregated, as determined appropriate by the HHS
Secretary.
Enrollee Protection Standards
Beginning the third plan year beginning after date of
enactment, the HHS Secretary would be required to specify
requirements for how MA plans use prior authorization to ensure
that (a) plans adopt transparent prior authorization programs
in consultation with enrollees and network providers and
suppliers, (b) the programs allow for the waiver or
modification of prior authorization requirements based on the
providers and suppliers demonstrating compliance with the
requirements, such as adhering to evidence-based medical
guidelines and other criteria, and (c) plans conduct annual
reviews of their prior authorization programs that take into
account input from enrollees and network providers and
suppliers, and are based on consideration of prior
authorization data from previous plan years and analyses of
current coverage criteria.
Reports to Congress
MedPAC would be required to submit a report to Congress,
which would include a descriptive analysis of the use of prior
authorization. As appropriate, the report would be required to
include statistics on the frequency of appeals and overturned
decisions, and would be required to include recommendations, as
appropriate, on any improvements to the MA electronic prior
authorization program. The report would be required to be
submitted not later than 3 years after the date information is
first submitted to the Secretary as part of the Transparency
Requirements.
The Comptroller General of the United States would be
required to submit a report to Congress evaluating the
implementation of the electronic prior authorization program
requirements and an analysis of implementation issues faced by
MA plans. The report would be required to be submitted by not
later than the end of the fourth plan year beginning on or
after enactment.
The HHS Secretary would be required to submit a series of
reports to Congress containing descriptions of the information
submitted by MA plans to the HHS Secretary with respect to the
new transparency requirements. The reports would be required to
be submitted to Congress by not later than the end of the fifth
plan year after the date of enactment, and biennially
thereafter through the date that is 10 years after enactment.
In the case of the first report, the description of the
transparency data would be required to be based on the data
submitted by MA plans in the fourth plan year, which would
represent data from the third plan year after enactment (i.e.,
the beginning of the electronic prior authorization program).
With respect to subsequent reports, the description of the
transparency data would be required to be based on the data
submitted by MA plans in the two plan years preceding the year
of the submission of the report.
Ensuring Timely Responses for All Prior Authorization
Requests Submitted Under Part C
The provision would amend the maximum amount of time the MA
plan is allowed before it must notify the enrollee and
physician of an expedited determination or expedited
reconsideration from 72 hours to not longer than 24 hours with
respect to prior authorization requests submitted on or after
the first day of the third plan year beginning after the date
of enactment. For prior authorization requests that are not
expedited, and that are submitted on or after the first day of
the third play year beginning after the date of enactment, the
determination would be required to be made no later than 7 days
after the receipt of the request (or a shorter time frame if
specified by the HHS Secretary through notice and comment rule
making, taking into account enrollee and stakeholder feedback).
Funding
The HHS Secretary would be required to transfer, from the
Hospital Insurance Trust Fund and the Supplementary Medical
Insurance Trust Fund, in such proportion as the HHS Secretary
determines appropriate, to the Centers for Medicare & Medicaid
Services Program Management Account, $15,000,000 for FY2022, to
remain available until expended, for purposes of carrying out
the amendments made by this Act.
EFFECTIVE DATE
Certain named provision: Effective beginning on or after
date July 31, 2023.
III. VOTES OF THE COMMITTEE
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the votes of the Committee on Ways and Means in its
consideration of H.R. 8487, the ``Improving Seniors' Timely
Access to Care Act of 2022''.
An amendment in the nature of a substitute to H.R. 8487 was
agreed to by voice vote with a quorum being present.
H.R. 8487 as amended was ordered favorably reported to the
House of Representatives by voice vote with a quorum being
present.
IV. BUDGET EFFECTS OF THE BILL
A. Committee Estimate of Budgetary Effects
In compliance with clause 3(d) of rule XIII of the Rules of
the House of Representatives, the following statement is made
concerning the effects on the budget of the bill, H.R. 8487, as
reported. The Committee agrees with the estimate prepared by
the Congressional Budget Office (CBO), which is included below.
B. Statement Regarding New Budget Authority and Tax Expenditures Budget
Authority
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee states that the
bill involves no new or increased budget authority. The
Committee states further that the bill involves no new or
increased tax expenditures.
C. Cost Estimate Prepared by the Congressional
Budget Office
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, requiring a cost estimate
prepared by the CBO, the following statement by CBO is
provided.
H.R. 3173 would establish new requirements for Medicare
Advantage plans that use prior authorization.
CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF H.R. 3173, IMPROVING SENIORS' TIMELY ACCESS TO CARE ACT OF 2021, AS POSTED TO THE WEBSITE OF
THE CLERK OF THE HOUSE ON SEPTEMBER 14, 2022
[https://docs.house.gov/billsthisweek/20220912/BILLS-117hr3173-SUSv1.pdf]
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-------------------------------------------------------------------------------------------------------------
2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2022-2027 2022-2032
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increases or Decreases (-) in Direct Spending
Total Changes in Direct Spending:
Estimated Budget Authority............ 0 25 0 897 2,131 2,498 2,708 2,093 2,225 2,109 1,559 5,551 16,245
Estimated Outlays..................... 0 5 18 899 2,131 2,498 2,708 2,093 2,225 2,109 1,559 5,551 16,245
--------------------------------------------------------------------------------------------------------------------------------------------------------
Components may not sum to totals because of rounding.
H.R. 3173 would require most Medicare Advantage plans to
establish an electronic program for prior authorizations and to
report new data to the Secretary that would later be made
publicly available. The new data would include a list of
services subject to prior authorization as well as data on
several metrics specified in the legislation. For example,
plans would be required to report the number of service
requests that they received and the share of those requests
that were denied.
In addition, plans would be required to respond to
expedited requests for prior authorization of services within
24 hours and to other requests within seven days. Most
provisions of H.R. 3173 would go into effect three years after
enactment, but the data reporting requirements would go into
effect four years after enactment. For this estimate, CBO
assumes that H.R. 3173 will be enacted before the end of
calendar year 2022.
Under current law, prior authorization is a utilization
management tool that limits coverage to cases that meet the
plan's standards of review. By placing additional requirements
on plans that use prior authorization, we expect H.R. 3173
would result in a greater use of services. We expect Medicare
Advantage plans would increase their bids to include the cost
of these additional services, which would result in higher
payments to plans.
V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE
A. Committee Oversight Findings and Recommendations
With respect to clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee made findings and recommendations that are
reflected in this report.
B. Statement of General Performance Goals and Objectives
With respect to clause 3(c)(4) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
bill contains no measure that authorizes funding, so no
statement of general performance goals and objectives for which
any measure authorizes funding is required.
C. Information Relating to Unfunded Mandates
This information is provided in accordance with section 423
of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-
4).
The Committee has determined that the bill does not contain
Federal mandates on the private sector. The Committee has
determined that the bill does not impose a Federal
intergovernmental mandate on State, local, or tribal
governments.
D. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
With respect to clause 9 of rule XXI of the Rules of the
House of Representatives, the Committee has carefully reviewed
the provisions of the bill, and states that the provisions of
the bill do not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits within the meaning of the
rule.
E. Duplication of Federal Programs
[on a bill that establishes or reauthorizes a federal
program] In compliance with clause 3(c)(5) of rule XIII of the
Rules of the House of Representatives, the Committee states
that no provision of the bill establishes or reauthorizes: (1)
a program of the Federal Government known to be duplicative of
another Federal program; (2) a program included in any report
to Congress pursuant to section 21 of Public Law 111-139; or
(3) a program related to a program identified in the most
recent Catalog of Federal Domestic Assistance, published
pursuant section 6104 of title 31, United States Code.
F. Hearings
In compliance with Sec. 103(i) of H. Res. 6 (116th
Congress)
(1) the following hearing was used to develop or consider
H.R. 8487:
On June 8, 2022, the Committee on Ways and Means held a
full committee hearing on the President's Proposed Fiscal Year
2022 Budget with Department of Health and Human Services
Secretary Becerra. The hearing focused on the HHS Budget and
opportunities to improve the health care system, including the
Medicare program. During the hearing, Representative DelBene
(D-WA) advocated for electronic and streamlined prior
authorization processes in Medicare Advantage to prevent
unnecessary delays in care.
(2) the following related hearings were held:
On February 2, 2022, the Committee on Ways and Means held a
full committee hearing on America's Mental Health Crisis. The
hearing focused on challenges in accessing mental health care
in America. There was a substantive discussion about the
barriers to mental health care services because of
administrative hurdles, more specifically prior authorizations,
and evidence was presented indicating that removing prior
authorization led to improved patient outcomes. Another witness
stressed the importance of reducing administrative barriers to
care like prior authorization and hurdles to payment for the
mental health care providers.
On February 3, 2022, the Committee on Ways and Means
Subcommittee on Health held a hearing on Bridging Health Equity
Gaps for People with Disabilities and Chronic Conditions. The
hearing focused on challenges individuals with disabilities and
other health conditions face when accessing health systems. The
hearing included a discussion about challenges to
administrative barriers to care that affects patients' health
and access to care.
On March 2, 2022, the Committee on Ways and Means held a
full committee hearing on Substance Use, Suicide Risk, and the
American Health System. The hearing focused on challenges to
substance abuse and mental health treatment and examined
suicide risk. During the hearing, there was a discussion of
prior authorization as a barrier to accessing substance use
disorder treatment.
VI. CHANGES IN EXISTING LAW MADE BY THE BILL,
AS REPORTED
In compliance with clause 3(e)(1)(B) of rule XIII of the
Rules of the House of Representatives, changes in existing law
proposed by the bill, as reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italics, existing law in
which no change is proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SOCIAL SECURITY ACT
* * * * * * *
TITLE XVIII--HEALTH INSURANCE FOR THE AGED
AND DISABLED
* * * * * * *
Part C--Medicare+Choice Program
* * * * * * *
benefits and beneficiary protections
Sec. 1852. (a) Basic Benefits.--
(1) Requirement.--
(A) In general.--Except as provided in
section 1859(b)(3) for MSA plans and except as
provided in paragraph (6) for MA regional
plans, each Medicare+Choice plan shall provide
to members enrolled under this part, through
providers and other persons that meet the
applicable requirements of this title and part
A of title XI, benefits under the original
medicare fee-for-service program option (and,
for plan years before 2006, additional benefits
required under section 1854(f)(1)(A)).
(B) Benefits under the original medicare fee-
for-service program option defined.--
(i) In general.--For purposes of this
part, the term ``benefits under the
original medicare fee-for-service
program option'' means, subject to
subsection (m), those items and
services (other than hospice care or
coverage for organ acquisitions for
kidney transplants, including as
covered under section 1881(d)) for
which benefits are available under
parts A and B to individuals entitled
to benefits under part A and enrolled
under part B, with cost-sharing for
those services as required under parts
A and B or, subject to clause (iii), an
actuarially equivalent level of cost-
sharing as determined in this part.
(ii) Special rule for regional
plans.--In the case of an MA regional
plan in determining an actuarially
equivalent level of cost-sharing with
respect to benefits under the original
medicare fee-for-service program
option, there shall only be taken into
account, with respect to the
application of section 1858(b)(2), such
expenses only with respect to
subparagraph (A) of such section.
(iii) Limitation on variation of cost
sharing for certain benefits.--Subject
to clause (v), cost-sharing for
services described in clause (iv) shall
not exceed the cost-sharing required
for those services under parts A and B.
(iv) Services described.--The
following services are described in
this clause:
(I) Chemotherapy
administration services.
(II) Renal dialysis services
(as defined in section
1881(b)(14)(B)).
(III) Skilled nursing care.
(IV) Clinical diagnostic
laboratory test administered
during any portion of the
emergency period defined in
paragraph (1)(B) of section
1135(g) beginning on or after
the date of the enactment of
the Families First Coronavirus
Response Act for the detection
of SARS-CoV-2 or the diagnosis
of the virus that causes COVID-
19 and the administration of
such test.
(V) Specified COVID-19
testing-related services (as
described in section
1833(cc)(1)) for which payment
would be payable under a
specified outpatient payment
provision described in section
1833(cc)(2).
(VI) A COVID-19 vaccine and
its administration described in
section 1861(s)(10)(A).
(VII) Such other services
that the Secretary determines
appropriate (including services
that the Secretary determines
require a high level of
predictability and transparency
for beneficiaries).
(v) Exception.--In the case of
services described in clause (iv),
other than subclauses (IV), (V), and
(VI) of such clause, for which there is
no cost-sharing required under parts A
and B, cost-sharing may be required for
those services in accordance with
clause (i).
(vi) Prohibition of application of
certain requirements for covid-19
testing.--In the case of a product or
service described in subclause (IV) or
(V), respectively, of clause (iv) that
is administered or furnished during any
portion of the emergency period
described in such subclause beginning
on or after the date of the enactment
of this clause, an MA plan may not
impose any prior authorization or other
utilization management requirements
with respect to the coverage of such a
product or service under such plan.
(2) Satisfaction of requirement.--
(A) In general.--A Medicare+Choice plan
(other than an MSA plan) offered by a
Medicare+Choice organization satisfies
paragraph (1)(A), with respect to benefits for
items and services furnished other than through
a provider or other person that has a contract
with the organization offering the plan, if the
plan provides payment in an amount so that--
(i) the sum of such payment amount
and any cost sharing provided for under
the plan, is equal to at least
(ii) the total dollar amount of
payment for such items and services as
would otherwise be authorized under
parts A and B (including any balance
billing permitted under such parts).
(B) Reference to related provisions.--For
provision relating to--
(i) limitations on balance billing
against Medicare+Choice organizations
for non-contract providers, see
sections 1852(k) and 1866(a)(1)(O), and
(ii) limiting actuarial value of
enrollee liability for covered
benefits, see section 1854(e).
(C) Election of uniform coverage
determination.--In the case of a
Medicare+Choice organization that offers a
Medicare+Choice plan in an area in which more
than one local coverage determination is
applied with respect to different parts of the
area, the organization may elect to have the
local coverage determination for the part of
the area that is most beneficial to
Medicare+Choice enrollees (as identified by the
Secretary) apply with respect to all
Medicare+Choice enrollees enrolled in the plan.
(3) Supplemental benefits.--
(A) Benefits included subject to secretary's
approval.--Subject to subparagraph (D), each
Medicare+Choice organization may provide to
individuals enrolled under this part, other
than under an MSA plan (without affording those
individuals an option to decline the coverage),
supplemental health care benefits that the
Secretary may approve. The Secretary shall
approve any such supplemental benefits unless
the Secretary determines that including such
supplemental benefits would substantially
discourage enrollment by Medicare+Choice
eligible individuals with the organization.
(B) At enrollees' option.--
(i) In general.--Subject to clause
(ii), a Medicare+Choice organization
may provide to individuals enrolled
under this part supplemental health
care benefits that the individuals may
elect, at their option, to have
covered.
(ii) Special rule for msa plans.--A
Medicare+Choice organization may not
provide, under an MSA plan,
supplemental health care benefits that
cover the deductible described in
section 1859(b)(2)(B). In applying the
previous sentence, health benefits
described in section 1882(u)(2)(B)
shall not be treated as covering such
deductible.
(C) Application to Medicare+Choice private
fee-for-service plans.--Nothing in this
paragraph shall be construed as preventing a
Medicare+Choice private fee-for-service plan
from offering supplemental benefits that
include payment for some or all of the balance
billing amounts permitted consistent with
section 1852(k) and coverage of additional
services that the plan finds to be medically
necessary. Such benefits may include reductions
in cost-sharing below the actuarial value
specified in section 1854(e)(4)(B).
(D) Expanding supplemental benefits to meet
the needs of chronically ill enrollees.--
(i) In general.--For plan year 2020
and subsequent plan years, in addition
to any supplemental health care
benefits otherwise provided under this
paragraph, an MA plan, including a
specialized MA plan for special needs
individuals (as defined in section
1859(b)(6)), may provide supplemental
benefits described in clause (ii) to a
chronically ill enrollee (as defined in
clause (iii)).
(ii) Supplemental benefits
described.--
(I) In general.--Supplemental
benefits described in this
clause are supplemental
benefits that, with respect to
a chronically ill enrollee,
have a reasonable expectation
of improving or maintaining the
health or overall function of
the chronically ill enrollee
and may not be limited to being
primarily health related
benefits.
(II) Authority to waive
uniformity requirements.--The
Secretary may, only with
respect to supplemental
benefits provided to a
chronically ill enrollee under
this subparagraph, waive the
uniformity requirements under
this part, as determined
appropriate by the Secretary.
(iii) Chronically ill enrollee
defined.--In this subparagraph, the
term ``chronically ill enrollee'' means
an enrollee in an MA plan that the
Secretary determines--
(I) has one or more comorbid
and medically complex chronic
conditions that is life
threatening or significantly
limits the overall health or
function of the enrollee;
(II) has a high risk of
hospitalization or other
adverse health outcomes; and
(III) requires intensive care
coordination.
(4) Organization as secondary payer.--Notwithstanding
any other provision of law, a Medicare+Choice
organization may (in the case of the provision of items
and services to an individual under a Medicare+Choice
plan under circumstances in which payment under this
title is made secondary pursuant to section 1862(b)(2))
charge or authorize the provider of such services to
charge, in accordance with the charges allowed under a
law, plan, or policy described in such section--
(A) the insurance carrier, employer, or other
entity which under such law, plan, or policy is
to pay for the provision of such services, or
(B) such individual to the extent that the
individual has been paid under such law, plan,
or policy for such services.
(5) National coverage determinations and legislative
changes in benefits.--If there is a national coverage
determination or legislative change in benefits
required to be provided under this part made in the
period beginning on the date of an announcement under
section 1853(b) and ending on the date of the next
announcement under such section and the Secretary
projects that the determination will result in a
significant change in the costs to a Medicare+Choice
organization of providing the benefits that are the
subject of such national coverage determination and
that such change in costs was not incorporated in the
determination of the annual Medicare+Choice capitation
rate under section 1853 included in the announcement
made at the beginning of such period, then, unless
otherwise required by law--
(A) such determination or legislative change
in benefits shall not apply to contracts under
this part until the first contract year that
begins after the end of such period, and
(B) if such coverage determination or
legislative change provides for coverage of
additional benefits or coverage under
additional circumstances, section 1851(i)(1)
shall not apply to payment for such additional
benefits or benefits provided under such
additional circumstances until the first
contract year that begins after the end of such
period.
The projection under the previous sentence shall be
based on an analysis by the Chief Actuary of the
Centers for Medicare & Medicaid Services of the
actuarial costs associated with the coverage
determination or legislative change in benefits.
(6) Special benefit rules for regional plans.--In the
case of an MA plan that is an MA regional plan,
benefits under the plan shall include the benefits
described in paragraphs (1) and (2) of section 1858(b).
(7) Limitation on cost-sharing for dual eligibles and
qualified medicare beneficiaries.--In the case of an
individual who is a full-benefit dual eligible
individual (as defined in section 1935(c)(6)) or a
qualified medicare beneficiary (as defined in section
1905(p)(1)) and who is enrolled in a specialized
Medicare Advantage plan for special needs individuals
described in section 1859(b)(6)(B)(ii), the plan may
not impose cost-sharing that exceeds the amount of
cost-sharing that would be permitted with respect to
the individual under title XIX if the individual were
not enrolled in such plan.
(b) Antidiscrimination.--
(1) Beneficiaries.--A Medicare Advantage organization
may not deny, limit, or condition the coverage or
provision of benefits under this part, for individuals
permitted to be enrolled with the organization under
this part, based on any health status-related factor
described in section 2702(a)(1) of the Public Health
Service Act. The Secretary shall not approve a plan of
an organization if the Secretary determines that the
design of the plan and its benefits are likely to
substantially discourage enrollment by certain MA
eligible individuals with the organization.
(2) Providers.--A Medicare+Choice organization shall
not discriminate with respect to participation,
reimbursement, or indemnification as to any provider
who is acting within the scope of the provider's
license or certification under applicable State law,
solely on the basis of such license or certification.
This paragraph shall not be construed to prohibit a
plan from including providers only to the extent
necessary to meet the needs of the plan's enrollees or
from establishing any measure designed to maintain
quality and control costs consistent with the
responsibilities of the plan.
(c) Disclosure Requirements.--
(1) Detailed description of plan provisions.--A
Medicare+Choice organization shall disclose, in clear,
accurate, and standardized form to each enrollee with a
Medicare+Choice plan offered by the organization under
this part at the time of enrollment and at least
annually thereafter, the following information
regarding such plan:
(A) Service area.--The plan's service area.
(B) Benefits.--Benefits offered under the
plan, including information described in
section 1851(d)(3)(A) and exclusions from
coverage and, if it is an MSA plan, a
comparison of benefits under such a plan with
benefits under other Medicare+Choice plans.
(C) Access.--The number, mix, and
distribution of plan providers, out-of-network
coverage (if any) provided by the plan, and any
point-of-service option (including the
supplemental premium for such option).
(D) Out-of-area coverage.--Out-of-area
coverage provided by the plan.
(E) Emergency coverage.--Coverage of
emergency services, including--
(i) the appropriate use of emergency
services, including use of the 911
telephone system or its local
equivalent in emergency situations and
an explanation of what constitutes an
emergency situation;
(ii) the process and procedures of
the plan for obtaining emergency
services; and
(iii) the locations of (I) emergency
departments, and (II) other settings,
in which plan physicians and hospitals
provide emergency services and post-
stabilization care.
(F) Supplemental benefits.--Supplemental
benefits available from the organization
offering the plan, including--
(i) whether the supplemental benefits
are optional,
(ii) the supplemental benefits
covered, and
(iii) the Medicare+Choice monthly
supplemental beneficiary premium for
the supplemental benefits.
(G) Prior authorization rules.--Rules
regarding prior authorization or other review
requirements that could result in nonpayment.
(H) Plan grievance and appeals procedures.--
All plan appeal or grievance rights and
procedures.
(I) Quality improvement program.--A
description of the organization's quality
improvement program under subsection (e).
(2) Disclosure upon request.--Upon request of a
Medicare+Choice eligible individual, a Medicare+Choice
organization must provide the following information to
such individual:
(A) The general coverage information and
general comparative plan information made
available under clauses (i) and (ii) of section
1851(d)(2)(A).
(B) Information on procedures used by the
organization to control utilization of services
and expenditures.
(C) Information on the number of grievances,
redeterminations, and appeals and on the
disposition in the aggregate of such matters.
(D) An overall summary description as to the
method of compensation of participating
physicians.
(d) Access to Services.--
(1) In general.--A Medicare+Choice organization
offering a Medicare+Choice plan may select the
providers from whom the benefits under the plan are
provided so long as--
(A) the organization makes such benefits
available and accessible to each individual
electing the plan within the plan service area
with reasonable promptness and in a manner
which assures continuity in the provision of
benefits;
(B) when medically necessary the organization
makes such benefits available and accessible 24
hours a day and 7 days a week;
(C) the plan provides for reimbursement with
respect to services which are covered under
subparagraphs (A) and (B) and which are
provided to such an individual other than
through the organization, if--
(i) the services were not emergency
services (as defined in paragraph (3)),
but (I) the services were medically
necessary and immediately required
because of an unforeseen illness,
injury, or condition, and (II) it was
not reasonable given the circumstances
to obtain the services through the
organization,
(ii) the services were renal dialysis
services and were provided other than
through the organization because the
individual was temporarily out of the
plan's service area, or
(iii) the services are maintenance
care or post-stabilization care covered
under the guidelines established under
paragraph (2);
(D) the organization provides access to
appropriate providers, including credentialed
specialists, for medically necessary treatment
and services; and
(E) coverage is provided for emergency
services (as defined in paragraph (3)) without
regard to prior authorization or the emergency
care provider's contractual relationship with
the organization.
(2) Guidelines respecting coordination of post-
stabilization care.--A Medicare+Choice plan shall
comply with such guidelines as the Secretary may
prescribe relating to promoting efficient and timely
coordination of appropriate maintenance and post-
stabilization care of an enrollee after the enrollee
has been determined to be stable under section 1867.
(3) Definition of emergency services.--In this
subsection--
(A) In general.--The term ``emergency
services'' means, with respect to an individual
enrolled with an organization, covered
inpatient and outpatient services that--
(i) are furnished by a provider that
is qualified to furnish such services
under this title, and
(ii) are needed to evaluate or
stabilize an emergency medical
condition (as defined in subparagraph
(B)).
(B) Emergency medical condition based on
prudent layperson.--The term ``emergency
medical condition'' means a medical condition
manifesting itself by acute symptoms of
sufficient severity (including 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--
(i) placing the health of the
individual (or, with respect to a
pregnant woman, the health of the woman
or her unborn child) in serious
jeopardy,
(ii) serious impairment to bodily
functions, or
(iii) serious dysfunction of any
bodily organ or part.
(4) Assuring access to services in
medicare+choice private fee-for-service
plans.--In addition to any other requirements
under this part, in the case of a
Medicare+Choice private fee-for-service plan,
the organization offering the plan must
demonstrate to the Secretary that the
organization has sufficient number and range of
health care professionals and providers willing
to provide services under the terms of the
plan. Subject to paragraphs (5) and (6), the
Secretary shall find that an organization has
met such requirement with respect to any
category of health care professional or
provider if, with respect to that category of
provider--
(A) the plan has established payment
rates for covered services furnished by
that category of provider that are not
less than the payment rates provided
for under part A, part B, or both, for
such services, or
(B) the plan has contracts or
agreements (other than deemed contracts
or agreements under subsection (j)(6))
with a sufficient number and range of
providers within such category to meet
the access standards in subparagraphs
(A) through (E) of paragraph (1),
or a combination of both. The previous sentence
shall not be construed as restricting the
persons from whom enrollees under such a plan
may obtain covered benefits, except that, if a
plan entirely meets such requirement with
respect to a category of health care
professional or provider on the basis of
subparagraph (B), it may provide for a higher
beneficiary copayment in the case of health
care professionals and providers of that
category who do not have contracts or
agreements (other than deemed contracts or
agreements under subsection (j)(6)) to provide
covered services under the terms of the plan.
(5) Requirement of certain nonemployer medicare
advantage private fee-for-service plans to use
contracts with providers.--
(A) In general.--For plan year 2011 and
subsequent plan years, in the case of a
Medicare Advantage private fee-for-service plan
not described in paragraph (1) or (2) of
section 1857(i) operating in a network area (as
defined in subparagraph (B)), the plan shall
meet the access standards under paragraph (4)
in that area only through entering into written
contracts as provided for under subparagraph
(B) of such paragraph and not, in whole or in
part, through the establishment of payment
rates meeting the requirements under
subparagraph (A) of such paragraph.
(B) Network area defined.--For purposes of
subparagraph (A), the term ``network area''
means, for a plan year, an area which the
Secretary identifies (in the Secretary's
announcement of the proposed payment rates for
the previous plan year under section
1853(b)(1)(B)) as having at least 2 network-
based plans (as defined in subparagraph (C))
with enrollment under this part as of the first
day of the year in which such announcement is
made.
(C) Network-based plan defined.--
(i) In general.--For purposes of
subparagraph (B), the term ``network-
based plan'' means--
(I) except as provided in
clause (ii), a Medicare
Advantage plan that is a
coordinated care plan described
in section 1851(a)(2)(A)(i);
(II) a network-based MSA
plan; and
(III) a reasonable cost
reimbursement plan under
section 1876.
(ii) Exclusion of non-network
regional ppos.--The term ``network-
based plan'' shall not include an MA
regional plan that, with respect to the
area, meets access adequacy standards
under this part substantially through
the authority of section
422.112(a)(1)(ii) of title 42, Code of
Federal Regulations, rather than
through written contracts.
(6) Requirement of all employer medicare advantage
private fee-for-service plans to use contracts with
providers.--For plan year 2011 and subsequent plan
years, in the case of a Medicare Advantage private fee-
for-service plan that is described in paragraph (1) or
(2) of section 1857(i), the plan shall meet the access
standards under paragraph (4) only through entering
into written contracts as provided for under
subparagraph (B) of such paragraph and not, in whole or
in part, through the establishment of payment rates
meeting the requirements under subparagraph (A) of such
paragraph.
(e) Quality Improvement Program.--
(1) In general.--Each MA organization shall have an
ongoing quality improvement program for the purpose of
improving the quality of care provided to enrollees in
each MA plan offered by such organization.
(2) Chronic care improvement programs.--As part of
the quality improvement program under paragraph (1),
each MA organization shall have a chronic care
improvement program. Each chronic care improvement
program shall have a method for monitoring and
identifying enrollees with multiple or sufficiently
severe chronic conditions that meet criteria
established by the organization for participation under
the program.
(3) Data.--
(A) Collection, analysis, and reporting.--
(i) In general.--Except as provided
in clauses (ii) and (iii) with respect
to plans described in such clauses and
subject to subparagraph (B), as part of
the quality improvement program under
paragraph (1), each MA organization
shall provide for the collection,
analysis, and reporting of data that
permits the measurement of health
outcomes and other indices of quality.
With respect to MA private fee-for-
service plans and MSA plans, the
requirements under the preceding
sentence may not exceed the
requirements under this subparagraph
with respect to MA local plans that are
preferred provider organization plans,
except that, for plan year 2010, the
limitation under clause (iii) shall not
apply and such requirements shall apply
only with respect to administrative
claims data.
(ii) Special requirements for
specialized ma plans for special needs
individuals.--In addition to the data
required to be collected, analyzed, and
reported under clause (i) and
notwithstanding the limitations under
subparagraph (B), as part of the
quality improvement program under
paragraph (1), each MA organization
offering a specialized Medicare
Advantage plan for special needs
individuals shall provide for the
collection, analysis, and reporting of
data that permits the measurement of
health outcomes and other indices of
quality with respect to the
requirements described in paragraphs
(2) through (5) of subsection (f). Such
data may be based on claims data and
shall be at the plan level.
(iii) Application to local preferred
provider organizations and MA regional
plans.--Clause (i) shall apply to MA
organizations with respect to MA local
plans that are preferred provider
organization plans and to MA regional
plans only insofar as services are
furnished by providers or services,
physicians, and other health care
practitioners and suppliers that have
contracts with such organization to
furnish services under such plans.
(iv) Definition of preferred provider
organization plan.--In this
subparagraph, the term ``preferred
provider organization plan'' means an
MA plan that--
(I) has a network of
providers that have agreed to a
contractually specified
reimbursement for covered
benefits with the organization
offering the plan;
(II) provides for
reimbursement for all covered
benefits regardless of whether
such benefits are provided
within such network of
providers; and
(III) is offered by an
organization that is not
licensed or organized under
State law as a health
maintenance organization.
(B) Limitations.--
(i) Types of data.--The Secretary
shall not collect under subparagraph
(A) data on quality, outcomes, and
beneficiary satisfaction to facilitate
consumer choice and program
administration other than the types of
data that were collected by the
Secretary as of November 1, 2003.
(ii) Changes in types of data.--
Subject to subclause (iii), the
Secretary may only change the types of
data that are required to be submitted
under subparagraph (A) after submitting
to Congress a report on the reasons for
such changes that was prepared in
consultation with MA organizations and
private accrediting bodies.
(iii) Construction.--Nothing in the
subsection shall be construed as
restricting the ability of the
Secretary to carry out the duties under
section 1851(d)(4)(D).
(4) Treatment of accreditation.--
(A) In general.--The Secretary shall provide
that a Medicare+Choice organization is deemed
to meet all the requirements described in any
specific clause of subparagraph (B) if the
organization is accredited (and periodically
reaccredited) by a private accrediting
organization under a process that the Secretary
has determined assures that the accrediting
organization applies and enforces standards
that meet or exceed the standards established
under section 1856 to carry out the
requirements in such clause.
(B) Requirements described.--The provisions
described in this subparagraph are the
following:
(i) Paragraphs (1) through (3) of
this subsection (relating to quality
improvement programs).
(ii) Subsection (b) (relating to
antidiscrimination).
(iii) Subsection (d) (relating to
access to services).
(iv) Subsection (h) (relating to
confidentiality and accuracy of
enrollee records).
(v) Subsection (i) (relating to
information on advance directives).
(vi) Subsection (j) (relating to
provider participation rules).
(vii) The requirements described in
section 1860D-4(j), to the extent such
requirements apply under section 1860D-
21(c).
(C) Timely action on applications.--The
Secretary shall determine, within 210 days
after the date the Secretary receives an
application by a private accrediting
organization and using the criteria specified
in section 1865(a)(2), whether the process of
the private accrediting organization meets the
requirements with respect to any specific
clause in subparagraph (B) with respect to
which the application is made. The Secretary
may not deny such an application on the basis
that it seeks to meet the requirements with
respect to only one, or more than one, such
specific clause.
(D) Construction.--Nothing in this paragraph
shall be construed as limiting the authority of
the Secretary under section 1857, including the
authority to terminate contracts with
Medicare+Choice organizations under subsection
(c)(2) of such section.
(f) Grievance Mechanism.--Each Medicare+Choice organization
must provide meaningful procedures for hearing and resolving
grievances between the organization (including any entity or
individual through which the organization provides health care
services) and enrollees with Medicare+Choice plans of the
organization under this part.
(g) Coverage Determinations, Reconsiderations, and Appeals.--
(1) Determinations by organization.--
(A) In general.--A Medicare+Choice
organization shall have a procedure for making
determinations regarding whether an individual
enrolled with the plan of the organization
under this part is entitled to receive a health
service under this section and the amount (if
any) that the individual is required to pay
with respect to such service. Subject to
paragraph (3) and in accordance with paragraph
(6), such procedures shall provide for such
determination to be made on a timely basis.
(B) Explanation of determination.--Such a
determination that denies coverage, in whole or
in part, shall be in writing and shall include
a statement in understandable language of the
reasons for the denial and a description of the
reconsideration and appeals processes.
(2) Reconsiderations.--
(A) In general.--The organization shall
provide for reconsideration of a determination
described in paragraph (1)(B) upon request by
the enrollee involved. The reconsideration
shall be within a time period specified by the
Secretary, but shall be made, subject to
paragraph (3), not later than 60 days after the
date of the receipt of the request for
reconsideration.
(B) Physician decision on certain
reconsiderations.--A reconsideration relating
to a determination to deny coverage based on a
lack of medical necessity shall be made only by
a physician with appropriate expertise in the
field of medicine which necessitates treatment
who is other than a physician involved in the
initial determination.
(3) Expedited determinations and reconsiderations.--
(A) Receipt of requests.--
(i) Enrollee requests.--An enrollee
in a Medicare+Choice plan may request,
either in writing or orally, an
expedited determination under paragraph
(1) or an expedited reconsideration
under paragraph (2) by the
Medicare+Choice organization.
(ii) Physician requests.--A
physician, regardless whether the
physician is affiliated with the
organization or not, may request,
either in writing or orally, such an
expedited determination or
reconsideration.
(B) Organization procedures.--
(i) In general.--The Medicare+Choice
organization shall maintain procedures
for expediting organization
determinations and reconsiderations
when, upon request of an enrollee, the
organization determines that the
application of the normal time frame
for making a determination (or a
reconsideration involving a
determination) could seriously
jeopardize the life or health of the
enrollee or the enrollee's ability to
regain maximum function.
(ii) Expedition required for
physician requests.--In the case of a
request for an expedited determination
or reconsideration made under
subparagraph (A)(ii), the organization
shall expedite the determination or
reconsideration if the request
indicates that the application of the
normal time frame for making a
determination (or a reconsideration
involving a determination) could
seriously jeopardize the life or health
of the enrollee or the enrollee's
ability to regain maximum function.
(iii) Timely response.--In cases
described in clauses (i) and (ii), the
organization shall notify the enrollee
(and the physician involved, as
appropriate) of the determination or
reconsideration under time limitations
established by the Secretary, but not
later than 72 hours (or, 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) of the
time of receipt of the request for the
determination or reconsideration (or
receipt of the information necessary to
make the determination or
reconsideration), or such longer period
as the Secretary may permit in
specified cases.
(4) Independent review of certain coverage denials.--
The Secretary shall contract with an independent,
outside entity to review and resolve in a timely manner
reconsiderations that affirm denial of coverage, in
whole or in part. The provisions of section 1869(c)(5)
shall apply to independent outside entities under
contract with the Secretary under this paragraph.
(5) Appeals.--An enrollee with a Medicare+Choice plan
of a Medicare+Choice organization under this part who
is dissatisfied by reason of the enrollee's failure to
receive any health service to which the enrollee
believes the enrollee is entitled and at no greater
charge than the enrollee believes the enrollee is
required to pay is entitled, if the amount in
controversy is $100 or more, to a hearing before the
Secretary to the same extent as is provided in section
205(b), and in any such hearing the Secretary shall
make the organization a party. If the amount in
controversy is $1,000 or more, the individual or
organization shall, upon notifying the other party, be
entitled to judicial review of the Secretary's final
decision as provided in section 205(g), and both the
individual and the organization shall be entitled to be
parties to that judicial review. In applying
subsections (b) and (g) of section 205 as provided in
this paragraph, and in applying section 205(l) thereto,
any reference therein to the Commissioner of Social
Security or the Social Security Administration shall be
considered a reference to the Secretary or the
Department of Health and Human Services, respectively.
The provisions of section 1869(b)(1)(E)(iii) shall
apply with respect to dollar amounts specified in the
first 2 sentences of this paragraph in the same manner
as they apply to the dollar amounts specified in
section 1869(b)(1)(E)(i).
(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, such
determination shall be made 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.
(h) Confidentiality and Accuracy of Enrollee Records.--
Insofar as a Medicare+Choice organization maintains medical
records or other health information regarding enrollees under
this part, the Medicare+Choice organization shall establish
procedures--
(1) to safeguard the privacy of any individually
identifiable enrollee information;
(2) to maintain such records and information in a
manner that is accurate and timely; and
(3) to assure timely access of enrollees to such
records and information.
(i) Information on Advance Directives.--Each Medicare+Choice
organization shall meet the requirement of section 1866(f)
(relating to maintaining written policies and procedures
respecting advance directives).
(j) Rules Regarding Provider Participation.--
(1) Procedures.--Insofar as a Medicare+Choice
organization offers benefits under a Medicare+Choice
plan through agreements with physicians, the
organization shall establish reasonable procedures
relating to the participation (under an agreement
between a physician and the organization) of physicians
under such a plan. Such procedures shall include--
(A) providing notice of the rules regarding
participation,
(B) providing written notice of participation
decisions that are adverse to physicians, and
(C) providing a process within the
organization for appealing such adverse
decisions, including the presentation of
information and views of the physician
regarding such decision.
(2) Consultation in medical policies.--A
Medicare+Choice organization shall consult with
physicians who have entered into participation
agreements with the organization regarding the
organization's medical policy, quality, and medical
management procedures.
(3) Prohibiting interference with provider advice to
enrollees.--
(A) In general.--Subject to subparagraphs (B)
and (C), a Medicare+Choice organization (in
relation to an individual enrolled under a
Medicare+Choice plan offered by the
organization under this part) shall not
prohibit or otherwise restrict a covered health
care professional (as defined in subparagraph
(D)) from advising such an individual who is a
patient of the professional about the health
status of the individual or medical care or
treatment for the individual's condition or
disease, regardless of whether benefits for
such care or treatment are provided under the
plan, if the professional is acting within the
lawful scope of practice.
(B) Conscience protection.--Subparagraph (A)
shall not be construed as requiring a
Medicare+Choice plan to provide, reimburse for,
or provide coverage of a counseling or referral
service if the Medicare+Choice organization
offering the plan--
(i) objects to the provision of such
service on moral or religious grounds;
and
(ii) in the manner and through the
written instrumentalities such
Medicare+Choice organization deems
appropriate, makes available
information on its policies regarding
such service to prospective enrollees
before or during enrollment and to
enrollees within 90 days after the date
that the organization or plan adopts a
change in policy regarding such a
counseling or referral service.
(C) Construction.--Nothing in subparagraph
(B) shall be construed to affect disclosure
requirements under State law or under the
Employee Retirement Income Security Act of
1974.
(D) Health care professional defined.--For
purposes of this paragraph, the term ``health
care professional'' means a physician (as
defined in section 1861(r)) or other health
care professional if coverage for the
professional's services is provided under the
Medicare+Choice plan for the services of the
professional. Such term includes a podiatrist,
optometrist, chiropractor, psychologist,
dentist, physician assistant, physical or
occupational therapist and therapy assistant,
speech-language pathologist, audiologist,
registered or licensed practical nurse
(including nurse practitioner, clinical nurse
specialist, certified registered nurse
anesthetist, and certified nurse-midwife),
licensed certified social worker, registered
respiratory therapist, and certified
respiratory therapy technician.
(4) Limitations on physician incentive plans.--
(A) In general.--No Medicare+Choice
organization may operate any physician
incentive plan (as defined in subparagraph (B))
unless the organization provides assurances
satisfactory to the Secretary that the
following requirements are met:
(i) No specific payment is made
directly or indirectly under the plan
to a physician or physician group as an
inducement to reduce or limit medically
necessary services provided with
respect to a specific individual
enrolled with the organization.
(ii) If the plan places a physician
or physician group at substantial
financial risk (as determined by the
Secretary) for services not provided by
the physician or physician group, the
organization provides stop-loss
protection for the physician or group
that is adequate and appropriate, based
on standards developed by the Secretary
that take into account the number of
physicians placed at such substantial
financial risk in the group or under
the plan and the number of individuals
enrolled with the organization who
receive services from the physician or
group.
(B) Physician incentive plan defined.--In
this paragraph, the term ``physician incentive
plan'' means any compensation arrangement
between a Medicare+Choice organization and a
physician or physician group that may directly
or indirectly have the effect of reducing or
limiting services provided with respect to
individuals enrolled with the organization
under this part.
(5) Limitation on provider indemnification.--A
Medicare+Choice organization may not provide (directly
or indirectly) for a health care professional, provider
of services, or other entity providing health care
services (or group of such professionals, providers, or
entities) to indemnify the organization against any
liability resulting from a civil action brought for any
damage caused to an enrollee with a Medicare+Choice
plan of the organization under this part by the
organization's denial of medically necessary care.
(6) Special rules for medicare+choice private fee-
for-service plans.--For purposes of applying this part
(including subsection (k)(1)) and section
1866(a)(1)(O), a hospital (or other provider of
services), a physician or other health care
professional, or other entity furnishing health care
services is treated as having an agreement or contract
in effect with a Medicare+Choice organization (with
respect to an individual enrolled in a Medicare+Choice
private fee-for-service plan it offers), if--
(A) the provider, professional, or other
entity furnishes services that are covered
under the plan to such an enrollee; and
(B) before providing such services, the
provider, professional, or other entity --
(i) has been informed of the
individual's enrollment under the plan,
and
(ii) either--
(I) has been informed of the
terms and conditions of payment
for such services under the
plan, or
(II) is given a reasonable
opportunity to obtain
information concerning such
terms and conditions,
in a manner reasonably designed to
effect informed agreement by a
provider.
The previous sentence shall only apply in the absence
of an explicit agreement between such a provider,
professional, or other entity and the Medicare+Choice
organization.
(7) Promotion of E-Prescribing by MA Plans.--
(A) In general.--An MA-PD plan may provide
for a separate payment or otherwise provide for
a differential payment for a participating
physician that prescribes covered part D drugs
in accordance with an electronic prescription
drug program that meets standards established
under section 1860D-4(e).
(B) Considerations.--Such payment may take
into consideration the costs of the physician
in implementing such a program and may also be
increased for those participating physicians
who significantly increase--
(i) formulary compliance;
(ii) lower cost, therapeutically
equivalent alternatives;
(iii) reductions in adverse drug
interactions; and
(iv) efficiencies in filing
prescriptions through reduced
administrative costs.
(C) Structure.--Additional or increased
payments under this subsection may be
structured in the same manner as medication
therapy management fees are structured under
section 1860D-4(c)(2)(E).
(k) Treatment of Services Furnished by Certain Providers.--
(1) In general.--Except as provided in paragraph (2),
a physician or other entity (other than a provider of
services) that does not have a contract establishing
payment amounts for services furnished to an individual
enrolled under this part with a Medicare+Choice
organization described in section 1851(a)(2)(A) or with
an organization offering an MSA plan shall accept as
payment in full for covered services under this title
that are furnished to such an individual the amounts
that the physician or other entity could collect if the
individual were not so enrolled. Any penalty or other
provision of law that applies to such a payment with
respect to an individual entitled to benefits under
this title (but not enrolled with a Medicare+Choice
organization under this part) also applies with respect
to an individual so enrolled.
(2) Application to medicare+choice private fee-for-
service plans.--
(A) Balance billing limits under
medicare+choice private fee-for-service plans
in case of contract providers.--
(i) In general.--In the case of an
individual enrolled in a
Medicare+Choice private fee-for-service
plan under this part, a physician,
provider of services, or other entity
that has a contract (including through
the operation of subsection (j)(6))
establishing a payment rate for
services furnished to the enrollee
shall accept as payment in full for
covered services under this title that
are furnished to such an individual an
amount not to exceed (including any
deductibles, coinsurance, copayments,
or balance billing otherwise permitted
under the plan) an amount equal to 115
percent of such payment rate.
(ii) Procedures to enforce limits.--
The Medicare+Choice organization that
offers such a plan shall establish
procedures, similar to the procedures
described in section 1848(g)(1)(A), in
order to carry out the previous
sentence.
(iii) Assuring enforcement.--If the
Medicare+Choice organization fails to
establish and enforce procedures
required under clause (ii), the
organization is subject to intermediate
sanctions under section 1857(g).
(B) Enrollee liability for noncontract
providers.--For provision--
(i) establishing minimum payment rate
in the case of noncontract providers
under a Medicare+Choice private fee-
for-service plan, see section
1852(a)(2); or
(ii) limiting enrollee liability in
the case of covered services furnished
by such providers, see paragraph (1)
and section 1866(a)(1)(O).
(C) Information on beneficiary liability.--
(i) In general.--Each Medicare+Choice
organization that offers a
Medicare+Choice private fee-for-service
plan shall provide that enrollees under
the plan who are furnished services for
which payment is sought under the plan
are provided an appropriate explanation
of benefits (consistent with that
provided under parts A and B and, if
applicable, under medicare supplemental
policies) that includes a clear
statement of the amount of the
enrollee's liability (including any
liability for balance billing
consistent with this subsection) with
respect to payments for such services.
(ii) Advance notice before receipt of
inpatient hospital services and certain
other services.--In addition, such
organization shall, in its terms and
conditions of payments to hospitals for
inpatient hospital services and for
other services identified by the
Secretary for which the amount of the
balance billing under subparagraph (A)
could be substantial, require the
hospital to provide to the enrollee,
before furnishing such services and if
the hospital imposes balance billing
under subparagraph (A)--
(I) notice of the fact that
balance billing is permitted
under such subparagraph for
such services, and
(II) a good faith estimate of
the likely amount of such
balance billing (if any), with
respect to such services, based
upon the presenting condition
of the enrollee.
(l) Return to Home Skilled Nursing Facilities for Covered
Post-Hospital Extended Care Services.--
(1) Ensuring return to home snf.--
(A) In general.--In providing coverage of
post-hospital extended care services, a
Medicare+Choice plan shall provide for such
coverage through a home skilled nursing
facility if the following conditions are met:
(i) Enrollee election.--The enrollee
elects to receive such coverage through
such facility.
(ii) SNF agreement.--The facility has
a contract with the Medicare+Choice
organization for the provision of such
services, or the facility agrees to
accept substantially similar payment
under the same terms and conditions
that apply to similarly situated
skilled nursing facilities that are
under contract with the Medicare+Choice
organization for the provision of such
services and through which the enrollee
would otherwise receive such services.
(B) Manner of payment to home snf.--The
organization shall provide payment to the home
skilled nursing facility consistent with the
contract or the agreement described in
subparagraph (A)(ii), as the case may be.
(2) No less favorable coverage.--The coverage
provided under paragraph (1) (including scope of
services, cost-sharing, and other criteria of coverage)
shall be no less favorable to the enrollee than the
coverage that would be provided to the enrollee with
respect to a skilled nursing facility the post-hospital
extended care services of which are otherwise covered
under the Medicare+Choice plan.
(3) Rule of construction.--Nothing in this subsection
shall be construed to do the following:
(A) To require coverage through a skilled
nursing facility that is not otherwise
qualified to provide benefits under part A for
medicare beneficiaries not enrolled in a
Medicare+Choice plan.
(B) To prevent a skilled nursing facility
from refusing to accept, or imposing conditions
upon the acceptance of, an enrollee for the
receipt of post-hospital extended care
services.
(4) Definitions.--In this subsection:
(A) Home skilled nursing facility.--The term
``home skilled nursing facility'' means, with
respect to an enrollee who is entitled to
receive post-hospital extended care services
under a Medicare+Choice plan, any of the
following skilled nursing facilities:
(i) SNF residence at time of
admission.--The skilled nursing
facility in which the enrollee resided
at the time of admission to the
hospital preceding the receipt of such
post-hospital extended care services.
(ii) SNF in continuing care
retirement community.--A skilled
nursing facility that is providing such
services through a continuing care
retirement community (as defined in
subparagraph (B)) which provided
residence to the enrollee at the time
of such admission.
(iii) SNF residence of spouse at time
of discharge.--The skilled nursing
facility in which the spouse of the
enrollee is residing at the time of
discharge from such hospital.
(B) Continuing care retirement community.--
The term ``continuing care retirement
community'' means, with respect to an enrollee
in a Medicare+Choice plan, an arrangement under
which housing and health-related services are
provided (or arranged) through an organization
for the enrollee under an agreement that is
effective for the life of the enrollee or for a
specified period.
(m) Provision of Additional Telehealth Benefits.--
(1) MA plan option.--For plan year 2020 and
subsequent plan years, subject to the requirements of
paragraph (3), an MA plan may provide additional
telehealth benefits (as defined in paragraph (2)) to
individuals enrolled under this part.
(2) Additional telehealth benefits defined.--
(A) In general.--For purposes of this
subsection and section 1854:
(i) Definition.--The term
``additional telehealth benefits''
means services--
(I) for which benefits are
available under part B,
including services for which
payment is not made under
section 1834(m) due to the
conditions for payment under
such section; and
(II) that are identified for
such year as clinically
appropriate to furnish using
electronic information and
telecommunications technology
when a physician (as defined in
section 1861(r)) or
practitioner (described in
section 1842(b)(18)(C))
providing the service is not at
the same location as the plan
enrollee.
(ii) Exclusion of capital and
infrastructure costs and investments.--
The term ``additional telehealth
benefits'' does not include capital and
infrastructure costs and investments
relating to such benefits.
(B) Public comment.--Not later than November
30, 2018, the Secretary shall solicit comments
on--
(i) what types of items and services
(including those provided through
supplemental health care benefits, such
as remote patient monitoring, secure
messaging, store and forward
technologies, and other non-face-to-
face communication) should be
considered to be additional telehealth
benefits; and
(ii) the requirements for the
provision or furnishing of such
benefits (such as training and
coordination requirements).
(3) Requirements for additional telehealth
benefits.--The Secretary shall specify requirements for
the provision or furnishing of additional telehealth
benefits, including with respect to the following:
(A) Physician or practitioner qualifications
(other than licensure) and other requirements
such as specific training.
(B) Factors necessary for the coordination of
such benefits with other items and services
including those furnished in-person.
(C) Such other areas as determined by the
Secretary.
(4) Enrollee choice.--If an MA plan provides a
service as an additional telehealth benefit (as defined
in paragraph (2))--
(A) the MA plan shall also provide access to
such benefit through an in-person visit (and
not only as an additional telehealth benefit);
and
(B) an individual enrollee shall have
discretion as to whether to receive such
service through the in-person visit or as an
additional telehealth benefit.
(5) Treatment under ma.--For purposes of this
subsection and section 1854, if a plan provides
additional telehealth benefits, such additional
telehealth benefits shall be treated as if they were
benefits under the original Medicare fee-for-service
program option.
(6) Construction.--Nothing in this subsection shall
be construed as affecting the requirement under
subsection (a)(1) that MA plans provide enrollees with
items and services (other than hospice care) for which
benefits are available under parts A and B, including
benefits available under section 1834(m).
(n) Provision of Information Relating to the Safe Disposal of
Certain Prescription Drugs.--
(1) In general.--In the case of an individual
enrolled under an MA or MA-PD plan who is furnished an
in-home health risk assessment on or after January 1,
2021, such plan shall ensure that such assessment
includes information on the safe disposal of
prescription drugs that are controlled substances that
meets the criteria established under paragraph (2).
Such information shall include information on drug
takeback programs that meet such requirements
determined appropriate by the Secretary and information
on in-home disposal.
(2) Criteria.--The Secretary shall, through
rulemaking, establish criteria the Secretary determines
appropriate with respect to information provided to an
individual to ensure that such information sufficiently
educates such individual on the safe disposal of
prescription drugs that are controlled substances.
(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 health claims attachment (as
defined for purposes of section
1173(a)(2)(B)) 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) any 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 any 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, broken down by
each applicable item and
service and broken down 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 all 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.--The Secretary of
Health and Human Services shall, through notice and
comment rulemaking, specify requirements with respect
to the use of prior authorization by Medicare Advantage
plans for applicable items and services to ensure--
(A) that such plans adopt 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) that such programs allow 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) that such plans conduct 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.
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