[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8487 Introduced in House (IH)]
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117th CONGRESS
2d Session
H. R. 8487
To amend title XVIII of the Social Security Act to establish
requirements with respect to the use of prior authorization under
Medicare Advantage plans, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 26, 2022
Ms. DelBene (for herself, Mr. Kelly of Pennsylvania, Mr. Bera, and Mr.
Bucshon) introduced the following bill; which was referred to the
Committee on Ways and Means, and in addition to the Committee on Energy
and Commerce, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to establish
requirements with respect to the use of prior authorization under
Medicare Advantage plans, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Improving Seniors' Timely Access to
Care Act of 2022''.
SEC. 2. ESTABLISHING REQUIREMENTS WITH RESPECT TO THE USE OF PRIOR
AUTHORIZATION UNDER MEDICARE ADVANTAGE PLANS.
(a) In General.--Section 1852 of the Social Security Act (42 U.S.C.
1395w-22) is amended by adding at the end the following new subsection:
``(o) Prior Authorization Requirements.--
``(1) In general.--In the case of a Medicare Advantage plan
that imposes any prior authorization requirement with respect
to any applicable item or service (as defined in paragraph (5))
during a plan year, such plan shall--
``(A) beginning with the third plan year beginning
after the date of the enactment of this subsection--
``(i) establish the electronic prior
authorization program described in paragraph
(2); and
``(ii) meet the enrollee protection
standards specified pursuant to paragraph (4);
and
``(B) beginning with the fourth plan year beginning
after the date of the enactment of this subsection,
meet the transparency requirements specified in
paragraph (3).
``(2) Electronic prior authorization program.--
``(A) In general.--For purposes of paragraph
(1)(A), the electronic prior authorization program
described in this paragraph is a program that provides
for the secure electronic transmission of--
``(i) a prior authorization request from a
provider of services or supplier to a Medicare
Advantage plan with respect to an applicable
item or service to be furnished to an
individual and a response, in accordance with
this paragraph, from such plan to such provider
or supplier; and
``(ii) any 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
use 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''; and
(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.
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