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Back to HB 176
Kentucky General Assembly· HB 176signed by Governor (Acts Ch. 102)

An act relating to prior authorization., the official text

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UNOFFICIAL COPY                                            26 RS HB 176/GA

1   AN ACT relating to prior authorization.

2 Be it enacted by the General Assembly of the Commonwealth of Kentucky:

3   SECTION 1. A NEW SECTION OF KRS 304.17A-600 TO 304.17A-633 IS

4 CREATED TO READ AS FOLLOWS:

5 (1) As used in this section:

6   (a) "Covered health care service" means a health care service furnished or

7   proposed to be furnished to a covered person that is specifically available or

8   included as a covered benefit in the covered person's health benefit plan;

9   (b) "Electronic health record" has the same meaning as in 42 U.S.C. sec.

10  17921, as amended;

11  (c) "Evaluation period" means a twelve (12) month period of time for which a

12  health care provider's prior authorization experience is evaluated by an

13  insurer or private review agent;

14  (d) "Health care provider" has the same meaning as in KRS 304.17A-005,

15  except for purposes of this section the term includes, if practicing

16  independently, any:

17  1. Licensed clinical alcohol and drug counselor licensed under KRS

18  Chapter 309;

19  2. Licensed psychologist, licensed psychological practitioner, or certified

20  psychologist with autonomous functioning licensed or certified under

21  the provisions of KRS Chapter 319;

22  3. Licensed professional clinical counselor licensed under KRS Chapter

23  335;

24  4. Licensed marriage and family therapist licensed under KRS Chapter

25  335;

26  5. Licensed professional art therapist licensed under KRS Chapter 309;

27  and

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1   6. Licensed clinical social worker licensed under KRS Chapter 335;

2   (e) "Health care provider group" means two (2) or more health care providers

3   that provide health care services within an entity that shares a common:

4   1. Group provider number; or

5   2. Tax identification number;

6   (f) "Health care service" has the same meaning as in KRS 304.17A-005,

7   except for purposes of this section the term:

8   1. Includes procedures, treatments, and services rendered by a health

9   care provider as defined in this section; and

10  2. Does not include the provision of prescription drugs;

11  (g) "Interoperability standards" means the technical standards set forth in 45

12  C.F.R. sec. 170.215, as amended;

13  (h) "Participating provider":

14  1. Means a health care provider that has entered into a participating

15  provider contract; and

16  2. Includes a health care provider group if the insurer has elected to

17  offer an exemption to the health care provider group under subsection

18  (4)(b)2. of this section;

19  (i) "Participating provider contract" means a contract between a health care

20  provider, either directly or through a health care provider group, and an

21  insurer for the provision of health care services under a health benefit plan;

22  (j) "Utilization" means the number of claims submitted for a particular health

23  care service under a health benefit plan by a participating provider; and

24  (k) "Value-based care agreement" means a contractual agreement between a

25  health care provider, either directly or through a health care provider

26  group, and an insurer that:

27  1. Incentivizes or rewards the provider based on one (1) or more of the

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    UNOFFICIAL COPY                                                     26 RS HB 176/GA

1   following:

2   a. Quality of care;

3   b. Safety;

4   c. Patient outcomes;

5   d. Efficiency;

6   e. Cost reduction; or

7   f. Other factors; and

8   2. May, but is not required to, include shared financial risk and rewards

9   based on performance metrics.

10 (2) An insurer or its private review agent shall not require a covered person,

11  authorized person, or participating provider to obtain a prior authorization for a

12  particular health care service under a health benefit plan if, at the time the health

13  care service was provided, the provider had a prior authorization exemption for

14  that particular health care service under a program offered under subsection (3)

15  of this section.

16 (3) Every insurer shall offer a program under which a participating provider may

17  qualify for an exemption from the requirement to obtain prior authorization for

18  any covered health care service that requires prior authorization.

19 (4) The program offered under subsection (3) of this section:

20  (a) Shall:

21  1. Provide that a participating provider, for an evaluation period

22  established by the insurer or private review agent, receive a prior

23  authorization exemption for a particular health care service if, during

24  the previous evaluation period, the provider met program terms and

25  conditions established by the insurer or private review agent that are

26  not in violation of this section;

27  2. Not condition a prior authorization exemption upon the provider

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    UNOFFICIAL COPY                                            26 RS HB 176/GA

1             exceeding a ninety-three percent (93%) approval rate for prior

2             authorization requests submitted by the provider for that health care

3             service during an evaluation period;

4   3. Require the insurer or its private review agent to evaluate, on an

5             annual basis, whether a participating provider qualifies to receive a

6             prior authorization exemption for each covered health care service for

7             which the insurer requires prior authorization;

8   4. Require each annual evaluation required under subparagraph 3. of

9             this paragraph to be conducted on:

10            a. For participating provider contracts that have a performance

11                   period of one (1) year, the contract's renewal date; or

12            b. For participating provider contracts that have a performance

13                   period of greater than one (1) year, the annual anniversary date

14                   of the contract renewal;

15  5. Require an insurer or its private review agent to notify each

16            participating provider that qualifies for a prior authorization

17            exemption within thirty (30) days after conducting the annual

18            evaluation required under subparagraph 3. of this paragraph;

19  6. Require an insurer or its private review agent to make available to a

20            health care provider during the contracting process the requirements

21            that the provider must meet to participate in the program; and

22  7. Comply with any administrative regulation promulgated under KRS

23            304.2-110 for or as an aid to the effectuation of this section; and

24  (b) May:

25  1. Offer a prior authorization exemption for any prescription drug;

26  2. Offer a prior authorization exemption to a health care provider group

27            in lieu of each participating provider practicing within a health care

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    UNOFFICIAL COPY                                            26 RS HB 176/GA

1   provider group;

2   3. Condition a participating provider's eligibility to participate in the

3   program on the provider satisfying one (1) or more of the following:

4   a. The provider has entered into, either directly or through a health

5                    care provider group, a value-based care agreement with the

6                    insurer;

7   b. The provider has been a participating provider for a minimum

8                    period of time established by the insurer or private review agent,

9                    except an established minimum period of time shall not be more

10                   than one (1) year; or

11  c. The provider:

12                   i. Complies with interoperability standards; and

13                   ii. Has entered into, either directly or through a health care

14                   provider group, an electronic health record access

15                   agreement with the insurer or private review agent;

16  4. Provide that a participating provider shall not qualify for a prior

17  authorization exemption for any particular health care service unless

18  the provider's utilization for that health care service during the

19  previous evaluation period meets any utilization requirement

20  established by the insurer or private review agent, except an

21  established utilization requirement shall not:

22  a. Require a minimum utilization of more than twenty-four (24); or

23  b. Impose a maximum utilization of less than one hundred ten

24                   percent (110%) of the participating provider's utilization for that

25                   particular health care service during the previous evaluation

26                   period; and

27  5. Provide that an insurer or its private review agent may revoke a

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    UNOFFICIAL COPY                                              26 RS HB 176/GA

1              participating provider's prior authorization exemption for any

2              particular health care service, or suspend or revoke a participating

3              provider's participation in the program, if:

4              a. The insurer or private review agent has evidence that the

5                    provider has engaged in fraud or abuse; or

6              b. The provider's utilization meets or exceeds a maximum

7                    utilization imposed under subparagraph 4.b. of this paragraph.

8 (5) If an insurer or its private review agent determines that a participating provider is

9   eligible to participate in the program offered under subsection (3) of this section,

10  the insurer or private review agent shall send a notice to the provider that

11  includes:

12  (a) A statement that the provider is eligible to participate in the program; and

13  (b) A list of each health care service that is subject to the elimination of prior

14  authorization requirements under the program.

15 (6) For all forms and notices sent to a participating provider in accordance with this

16  section, or any administrative regulations promulgated under KRS 304.2-110 for

17  or as an aid to the effectuation of this section, the insurer or its private review

18  agent shall:

19  (a) Provide a process for the provider to designate and update the provider's

20  preferred manner for receiving the forms and notices; and

21  (b) Send the forms and notices to the provider in the manner designated under

22  paragraph (a) of this subsection.

23 (7) This section shall not be construed to:

24  (a) Prevent an insurer or its private review agent from requesting a health care

25  provider to provide additional information about a health care service

26  rendered to a covered person; or

27  (b) Require coverage of a noncovered health care service under a covered

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    UNOFFICIAL COPY                                            26 RS HB 176/GA

1   person's health benefit plan.

2   SECTION 2. A NEW SECTION OF KRS 304.17A-600 TO 304.17A-633 IS

3 CREATED TO READ AS FOLLOWS:

4 The commissioner shall:

5 (1) (a) Submit a written report not later than September 30 of each year to the

6   Legislative Research Commission for referral to the Interim Joint

7   Committees on Banking and Insurance and Health Services relating to

8   prior authorization in the provision of health care benefits under this

9   chapter.

10  (b) The report required under paragraph (a) of this subsection shall include:

11  1. Information relating to the implementation and effectuation of

12  Section 1 of this Act;

13  2. The number of insurers and private review agents offering a program

14  required under Section 1 of this Act;

15  3. The number of providers, by provider group, specialty, and county,

16  participating in one (1) or more programs offered under Section 1 of

17  this Act;

18  4. A list of health care services, which shall include a description and

19  Current Procedural Terminology code for each service, for which

20  exemptions have been granted under the programs required under

21  Section 1 of this Act;

22  5. The number of programs offered under Section 1 of this Act, which

23  shall include:

24  a. The number of programs that grant exemptions for one (1) or

25                   more prescription drugs; and

26  b. A list of the drugs for which exemptions are granted under a

27                   program reported under subdivision a. of this subparagraph; and

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    UNOFFICIAL COPY                                               26 RS HB 176/GA

1   6. With respect to any health insurance policy, certificate, plan, or

2   contract required to comply with KRS 304.17A-600 to 304.17A-633:

3   a. A list of all services, procedures, and other treatments, including

4                    prescription drugs, that require prior authorization;

5   b. The percentage of prior authorization requests for nonurgent

6                    health care services in aggregate and by specific service,

7                    procedure, prescription drug, and other treatment:

8                    i. That were approved without an extension;

9                    ii. For which the review was extended and the request

10                   approved; and

11                   iii. That were denied, which may include the reason or reasons

12                   for the denials;

13  c. The percentage of prior authorization requests for urgent health

14                   care services that were:

15                   i. Approved; and

16                   ii. Denied, which may include the reason or reasons for the

17                   denials; and

18  d. The average and median time between submission of a prior

19                   authorization request and the prior authorization decision for:

20                   i. Nonurgent health care services; and

21                   ii. Urgent health care services;

22 (2) Provide the Interim Joint Committees on Banking and Insurance and Health

23  Services with a detailed briefing, upon request, to discuss and explain any report

24  submitted under subsection (1) of this section; and

25 (3) Promulgate any administrative regulation, including an emergency

26  administrative regulation, in accordance with KRS Chapter 13A that the

27  commissioner deems necessary to implement this section.

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    UNOFFICIAL COPY                                             26 RS HB 176/GA

1   Section 3. KRS 304.17A-605 is amended to read as follows:

2 (1) (a) Except as provided in paragraph (b) of this subsection, KRS 304.17A-600,

3   304.17A-603, 304.17A-605, 304.17A-607, 304.17A-609, 304.17A-611,

4   304.17A-613, and 304.17A-615 set forth the requirements and procedures

5   regarding utilization review and shall apply to:

6   1.[(a)] Any insurer or its private review agent that provides or performs

7   utilization review in connection with a health benefit plan or a limited

8   health service benefit plan; and

9   2.[(b)] Any private review agent that performs utilization review

10  functions on behalf of any person providing or administering health

11  benefit plans or limited health service benefit plans.

12  (b) Section 1 of this Act sets forth additional requirements for prior

13  authorization and shall apply to:

14  1. Any insurer or its private review agent that provides or performs

15  utilization review in connection with a health benefit plan; and

16  2. Any private review agent that performs utilization review functions on

17  behalf of any person providing and administering health benefit plans.

18 (2) Where an insurer or its agent provides or performs utilization review, and in all

19  instances where internal appeals as set forth in KRS 304.17A-617 are involved, the

20  insurer or its agent shall be responsible for:

21  (a) Monitoring all utilization reviews and internal appeals carried out by or on

22  behalf of the insurer;

23  (b) Ensuring that all requirements of KRS 304.17A-600 to 304.17A-633 are met;

24  (c) Ensuring that all administrative regulations promulgated in accordance with

25  KRS 304.17A-609, 304.17A-613, and 304.17A-629 are complied with; and

26  (d) Ensuring that appropriate personnel have operational responsibility for the

27  performance of the insurer's utilization review plan.

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1 (3) A private review agent that operates solely under contract with the federal

2   government for utilization review or patients eligible for hospital services under

3   Title XVIII of the Social Security Act shall not be subject to the registration

4   requirements set forth in KRS 304.17A-607, 304.17A-609, and 304.17A-613.

5   Section 4. KRS 304.17A-611 is amended to read as follows:

6 (1) A utilization review decision shall not retrospectively deny coverage for health care

7   services provided to a covered person when prior approval has been obtained from

8   the insurer or its designee for those services, unless the approval was based upon

9   fraudulent, materially inaccurate, or misrepresented information submitted by the

10  covered person, authorized person, or the provider.

11 (2) An insurer of a health benefit plan shall not require or conduct a prospective or

12  concurrent review for a prescription drug:

13  (a) That:

14  1. Is used in the treatment of alcohol or opioid use disorder; and

15  2. Contains Methadone, Buprenorphine, an opioid antagonist, or

16             Naltrexone; or

17  (b) That was approved before January 1, 2022, by the United States Food and

18  Drug Administration for the mitigation of opioid withdrawal symptoms.

19 (3) Notwithstanding any other law to the contrary:

20  (a) An insurer or its private review agent shall not conduct a retrospective

21  review that is based solely on a participating provider having a prior

22  authorization exemption under a program offered under subsection (3) of

23  Section 1 of this Act except to determine if the provider continues to qualify

24  for the exemption; and

25  (b) The timeframes for rendering a utilization review decision under KRS

26  304.17A-607 shall not apply to a retrospective review conducted for the

27  purpose of determining if a participating provider qualifies for an initial or

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1   continuing prior authorization exemption under a program offered under

2   subsection (3) of Section 1 of this Act.

3   SECTION 5. A NEW SECTION OF KRS CHAPTER 205 IS CREATED TO

4 READ AS FOLLOWS:

5 The commissioner of the Department for Medicaid Services shall:

6 (1) (a) Submit a written report not later than September 30 of each year to the

7   Legislative Research Commission for referral to the Interim Joint

8   Committees on Banking and Insurance and Health Services relating to

9   prior authorization in the provision of Medicaid benefits in Kentucky.

10  (b) The report required under paragraph (a) of this subsection shall include the

11  following, categorized by Medicaid managed care organization and fee for

12  service:

13  1. A list of all services, procedures, and other treatments, including

14  prescription drugs, that require prior authorization;

15  2. The percentage of prior authorization requests for nonurgent health

16  care services in aggregate and by specific service, procedure,

17  prescription drug, and other treatment:

18  a. That were approved without an extension;

19  b. For which the review was extended and the request approved;

20                   and

21  c. That were denied, which may include the reason or reasons for

22                   the denials;

23  3. The percentage of prior authorization requests for urgent health care

24  services that were:

25  a. Approved; and

26  b. Denied, which may include the reason or reasons for the denials;

27                   and

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1   4. The average and median time between submission of a prior

2   authorization request and a prior authorization decision for:

3   a. Nonurgent health care services; and

4   b. Urgent health care services;

5 (2) Provide the Interim Joint Committees on Banking and Insurance and Health

6   Services with a detailed briefing, upon request, to discuss and explain any report

7   submitted under subsection (1) of this section; and

8 (3) Promulgate any administrative regulation, including an emergency

9   administrative regulation, in accordance with KRS Chapter 13A that the

10  commissioner deems necessary to implement this section.

11  Section 6. KRS 205.536 is amended to read as follows:

12 (1) Except as provided in subsection (4) of this section, a Medicaid managed care

13  organization shall have a utilization review plan, as defined in KRS 304.17A-600,

14  that meets the requirements established in 42 C.F.R. pts. 431, 438, and 456. If the

15  Medicaid managed care organization utilizes a private review agent, as defined in

16  KRS 304.17A-600, the agent shall comply with all applicable requirements of KRS

17  304.17A-600 to 304.17A-633.

18 (2) In conducting utilization reviews for Medicaid benefits, each Medicaid managed

19  care organization shall use the medical necessity criteria selected by the Department

20  of Insurance pursuant to KRS 304.38-240, for making determinations of medical

21  necessity and clinical appropriateness pursuant to the utilization review plan

22  required by subsection (1) of this section.

23 (3) To the extent consistent with the federal regulations referenced in subsection (1) of

24  this section, the Department for Medicaid Services or any managed care

25  organization contracted to provide Medicaid benefits pursuant to KRS Chapter 205

26  shall not require or conduct a prospective or concurrent review, as defined in KRS

27  304.17A-600, for a prescription drug:

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    UNOFFICIAL COPY                                                  26 RS HB 176/GA

1   (a) That:

2   1. Is used in the treatment of alcohol or opioid use disorder; and

3   2. Contains Methadone, Buprenorphine, an opioid antagonist, or

4              Naltrexone; or

5   (b) That was approved before January 1, 2022, by the United States Food and

6   Drug Administration for the mitigation of opioid withdrawal symptoms.

7 (4) This chapter shall not be construed to require, with respect to the administration

8   and provision of Medicaid benefits pursuant to this chapter, the Department for

9   Medicaid Services, any managed care organization contracted to provide

10  Medicaid benefits pursuant to this chapter, including any private review agent

11  utilized by the Medicaid managed care organization, or the state's medical

12  assistance program to comply with Section 1 of this Act.

13  Section 7. Sections 1 to 4 of this Act apply to contracts delivered, entered,

14 renewed, extended, or amended on or after January 1, 2028.

15  Section 8. Section 5 of this Act takes effect January 1, 2027.

16  Section 9. Sections 1, 2, 3, 4, 6, and 7 of this Act take effect January 1, 2028.

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