Click here to view the actual law, HB 3459.
Click here to view the April 7, 2022, proposed rule related to prior authorizations and adverse determinations.
Click here to view the April 7, 2022, proposed rule related to IROs.
Adverse Determinations & Physician Reviews
Utilization Review: Prior to Issuing an Adverse Determination:
HB 3459 requires a physician to be afforded the opportunity to review an adverse determination with a physician who is licensed to practice medicine in Texas and has the same or similar specialty.
Utilization Review: Texas Administrative Medicine License
TDI asked in its informal comments if a Texas administrative medicine license would be adequate to meet the the new requirement for a licensed physician must be available to offer a utilization review prior offering an adverse determination. TDI commented in its proposed rule:
Physicians holding Texas Administrative Medicine Licenses under the Medical Practice Act and Texas Medical Board rule 22 TAC §172.17 meet this standard. TDI has historically interpreted this statute to include Texas Administrative Medicine Licenses, and TDI believes that recent changes to §4201.206 do not indicate that this long-standing position should change.
Click here to view the text on pages 8 and 9:
October 1, 2022, Start Date?
The proposed rule would require the health plans to grant the preauthorization exemption between July 1 and October 1, 2022:
(c) For the initial evaluation period of January 1 through June 30, 2022, an issuer must provide notice granting or denying a preauthorization exemption no later than October 1, 2022. For subsequent evaluation periods during which a physician or provider does not have a preauthorization exemption, an issuer must provide notice to the physician or provider granting or denying a preauthorization exemption no later than two months following the day after the end of the evaluation period. Notice need only be provided for a particular health care service if the issuer was able to complete an evaluation of at least 20 preauthorization requests, as provided in §19.1731(b) of this title (relating to Preauthorization Exemption).
Threshold 20 Requests & 90 Percent Success Rate
The rule would require an evaluation to be based on no fewer than 20 preauthorization requests:
(b) With respect to a particular health care service for which a physician or provider does not have a preauthorization exemption, an issuer must conduct an evaluation of all preauthorization requests submitted by the physician or provider during the most recent evaluation period that were finalized prior to the evaluation and may not include a request that is pending appeal at the time the data is analyzed. The evaluation must be based on no fewer than 20 preauthorization requests.
As defined by law, the proposed rule states that a physician would have to be successful 90 percent of the time to achieve the exemption:
Denial of preauthorization exemption–A determination that a physician or provider does not qualify for a preauthorization exemption based on the issuer conducting an evaluation of preauthorization requests and demonstrating that the physician or provider received full and final approval for fewer than 90% of the preauthorization requests made for a particular health care service during the most recent evaluation period.
TDI Asks for Comments on 20 Services as the Threshold to measure
TDI proposes a 20 services as the number that is required during an evaluation period to seek the exemption, and this is likely to be one of the most contentious points of the proposed rule:
Subsection (b) states that the issuer must review the outcomes of no fewer than 20 preauthorization requests for a particular health care service in a given evaluation period and determine whether the physician or provider qualifies for an exemption. The department specifically seeks comments on this minimum threshold for review and whether it should be modified.
Maintaining Medical Records for Medical Guidelines
Per TDI’s proposed rule:
New §19.1733(g) states that physicians and providers must continue to maintain medical records adequate to demonstrate that the exempted services they provide meet medical guidelines in order to retain a preauthorization exemption. Most, if not all, physicians and providers subject to this proposed rule already maintain records for a sufficient amount of time.
How Do You Define the Medical Services?
Rep. Greg Bonnen, MD, passed a number of other prior authorization laws over the years, and a 2019 law required the health plans to make public on a website their list of prior authorization services, data on the denials and other information.
Click here to view TOA’s web page on prior authorizations, which includes links to the health plans’ prior authorization pages, which include the list of services subject to prior authorizations.
The proposed rule refers to these websites as the way that TDI would define “particular health care service”:
(6) Particular health care service–A health care service, including a prescription drug, that is subject to preauthorization as listed on the issuer’s website TITLE 28. INSURANCE Proposed Sections Part I. Texas Department of Insurance Page 12 of 18 Chapter 19. Licensing and Regulation of Insurance Professionals under §19.1718(j) of this title (relating to Preauthorization for Health Maintenance Organizations and Preferred Provider Benefit Plans).
Challenges Related to Rescissions
Should a health plan remove an existing exemption or deny an exemption request, the proposed rule creates a process to challenge the ruling.