II 

116TH CONGRESS 

2D SESSION S. 5044 

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 SENATE OF THE UNITED STATES 

DECEMBER 17, 2020 

Mr. BROWN (for himself and Mr. THUNE) introduced the following bill; which 

was read twice and referred to the Committee on Finance 

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 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Improving Seniors’ 

5 Timely Access to Care Act of 2020’’. 


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1 SEC. 2. ESTABLISHING REQUIREMENTS WITH RESPECT TO 

2 THE USE OF PRIOR AUTHORIZATION UNDER 

3 MEDICARE ADVANTAGE PLANS. 

4 (a) IN GENERAL.—Section 1852 of the Social Secu5 rity Act (42 U.S.C. 1395w–22) is amended by adding at 

6 the end the following new subsection: 

7 ‘‘(o) PRIOR AUTHORIZATION REQUIREMENTS.— 

8 ‘‘(1) IN GENERAL.—Beginning with the second 

9 plan year beginning after the date of the enactment 

10 of this subsection, in the case of a Medicare Advan11 tage plan that imposes any prior authorization re12 quirement with respect to any applicable item or 

13 service (other than a covered part D drug) during a 

14 plan year, such plan shall— 

15 ‘‘(A) establish the electronic prior author16 ization program described in paragraph (2) and 

17 issue real-time decisions with respect to prior 

18 authorization requests for items and services 

19 identified by the Secretary under subparagraph 

20 (C)(ii) of such paragraph; 

21 ‘‘(B) meet the transparency requirements 

22 specified in paragraph (3); and 

23 ‘‘(C) meet the beneficiary protection stand24 ards specified pursuant to paragraph (4). 

25 ‘‘(2) ELECTRONIC PRIOR AUTHORIZATION PRO26 GRAM.— 


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1 ‘‘(A) IN GENERAL.—For purposes of para2 graph (1)(A), the electronic prior authorization 

3 program described in this paragraph is a pro4 gram that provides for the secure electronic 

5 transmission of— 

6 ‘‘(i) a prior authorization request 

7 from a health care professional to a Medi8 care Advantage plan with respect to an ap9 plicable item or service to be furnished to 

10 an individual, including such clinical infor11 mation necessary to evidence medical ne12 cessity; and 

13 ‘‘(ii) a response, in accordance with 

14 this paragraph, from such plan to such 

15 professional. 

16 ‘‘(B) ELECTRONIC TRANSMISSION.— 

17 ‘‘(i) EXCLUSIONS.—For purposes of 

18 this paragraph, a facsimile, a proprietary 

19 payer portal that does not meet standards 

20 specified by the Secretary, or an electronic 

21 form shall not be treated as an electronic 

22 transmission described in subparagraph 

23 (A). 

24 ‘‘(ii) STANDARDS.— 


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1 ‘‘(I) IN GENERAL.—In order to 

2 ensure appropriate clinical outcome 

3 for individuals, for purposes of this 

4 paragraph, an electronic transmission 

5 described in subparagraph (A) shall 

6 comply with technical standards 

7 adopted by the Secretary in consulta8 tion with standard-setting organiza9 tions determined appropriate by the 

10 Secretary, health care professionals, 

11 Medicare Advantage organizations, 

12 and health information technology 

13 software vendors. In adopting such 

14 standards with respect to which an 

15 electronic transmission described in 

16 subparagraph (A) shall comply, the 

17 Secretary shall ensure that such 

18 transmissions support attachments 

19 containing applicable clinical informa20 tion and shall prioritize the adoption 

21 of standards that support integration 

22 with interoperable health information 

23 technology certified under a program 

24 of voluntary certification kept or rec25 ognized by the National Coordinator 


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1 for Health Information Technology 

2 consistent with section 3001(c)(5) of 

3 the Public Health Service Act. 

4 ‘‘(II) TRANSACTION STAND5 ARD.—The Secretary shall include in 

6 the standards adopted under sub7 clause (I) a standard with respect to 

8 the transmission of attachments de9 scribed in such subclause, and data 

10 elements and operating rules for such 

11 transmission, consistent with health 

12 care industry standards. 

13 ‘‘(C) REAL-TIME DECISIONS.— 

14 ‘‘(i) IN GENERAL.—The program de15 scribed in subparagraph (A) shall provide 

16 for real-time decisions (as defined by the 

17 Secretary in accordance with clause (iv)) 

18 by a Medicare Advantage plan with respect 

19 to prior authorization requests for applica20 ble items and services identified by the 

21 Secretary pursuant to clause (ii) for a plan 

22 year if such requests contain all docu23 mentation described in paragraph 

24 (3)(A)(ii)(II) required by such plan. 


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1 ‘‘(ii) IDENTIFICATION OF RE2 QUESTS.—For purposes of clause (i) and 

3 with respect to a period of 2 plan years, 

4 the Secretary shall identify, not later than 

5 the date on which the initial announcement 

6 described in section 1853(b)(1)(B)(i) for 

7 the first plan year of such period is re8 quired to be announced, applicable items 

9 and services for which prior authorization 

10 requests are routinely approved, and shall 

11 update the identification of such items and 

12 services for each subsequent period of 2 

13 plan years. 

14 ‘‘(iii) DATA COLLECTION AND CON15 SULTATION WITH RELEVANT ELIGIBLE

16 PROFESSIONAL ORGANIZATIONS AND REL17 EVANT STAKEHOLDERS.—The Secretary 

18 shall use the information described in 

19 paragraph (3)(A) (if available) and shall 

20 issue a request for information from Medi21 care Advantage plans, providers, suppliers, 

22 beneficiary advocacy organizations, con23 sumer organizations, and other stake24 holders for purposes of identifying requests 

25 for a period under clause (ii). 


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1 ‘‘(iv) DEFINITION OF REAL-TIME DE2 CISION.— 

3 ‘‘(I) IN GENERAL.—In estab4 lishing the definition of a real-time 

5 decision for purposes of clause (i), the 

6 Secretary shall take into account cur7 rent medical practice, technology, 

8 health care industry standards, and 

9 other relevant information and factors 

10 to ensure the accurate and timely fur11 nishing of items and services to indi12 viduals. 

13 ‘‘(II) UPDATE.—The Secretary 

14 shall update, not less often than once 

15 every 2 years, the definition of a real16 time decision for purposes of clause 

17 (i), taking into account changes in 

18 medical practice, changes in tech19 nology, changes in health care indus20 try standards, and other relevant in21 formation, such as the information 

22 submitted by Medicare Advantage 

23 plans under paragraph (3)(A)(i), and 

24 factors to ensure the accurate and 


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1 timely furnishing of items and services 

2 to individuals. 

3 ‘‘(v) IMPLEMENTATION.—The Sec4 retary shall use notice and comment rule5 making, which may include use of the an6 nual call letter process under this part, for 

7 each of the following: 

8 ‘‘(I) Establishing the definition 

9 of a ‘real-time decision’ for purposes 

10 of clause (i). 

11 ‘‘(II) Updating such definition 

12 pursuant to clause (iv)(II). 

13 ‘‘(III) Identifying applicable 

14 items or services pursuant to clause 

15 (ii) for the initial period of 2 plan 

16 years as described in such clause. 

17 ‘‘(IV) Updating the identification 

18 of such items and services for each 

19 subsequent period of 2 plan years as 

20 described in such clause. 

21 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 

22 ‘‘(A) IN GENERAL.—For purposes of para23 graph (1)(B), the transparency requirements 

24 specified in this paragraph are, with respect to 

25 a Medicare Advantage plan, the following: 


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1 ‘‘(i) The plan, annually and in a man2 ner specified by the Secretary, shall submit 

3 to the Secretary the following information: 

4 ‘‘(I) A list of all applicable items 

5 and services that are described in sub6 section (a)(1)(B) that are subject to a 

7 prior authorization requirement under 

8 the plan. 

9 ‘‘(II) The percentage of prior au10 thorization requests approved during 

11 the previous plan year by the plan in 

12 an initial determination with respect 

13 to each such item and service. 

14 ‘‘(III) The percentage of such re15 quests that were initially denied and 

16 that were subsequently appealed in 

17 any manner, and the percentage of 

18 such appealed requests that were 

19 overturned, with respect to each such 

20 item and service, broken down by each 

21 stage of appeal (including judicial re22 view). The plan may include informa23 tion regarding the number of initial 

24 denials due to request submissions 


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1 that did not meet clinical evidence 

2 standards. 

3 ‘‘(IV) The percentage of such re4 quests that were denied and the per5 centage of the total number of denied 

6 requests that were denied as a result 

7 of decision support technology or 

8 other clinical decision-making tools. 

9 ‘‘(V) The average and the median 

10 amount of time (in hours) that 

11 elapsed during the previous plan year 

12 between the submission of such a re13 quest to the plan and a determination 

14 by the plan with respect to such re15 quest for each such item and service, 

16 excluding any such requests that did 

17 not contain all information required to 

18 be submitted by the plan. 

19 ‘‘(VI) A list that includes a de20 scription of each occurrence during 

21 the previous plan year in which the 

22 plan made a determination to approve 

23 or deny an item or service in the case 

24 where a provider furnished an addi25 tional or differing item or service durVerDate Sep 11 2014 04:15 Jan 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5044.IS S5044

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1 ing the peroperative period of a sur2 gical or otherwise invasive procedure 

3 that such provider determined was 

4 medically necessary. 

5 ‘‘(VII) A disclosure and descrip6 tion of any software decision-making 

7 tools the plan utilizes in making de8 terminations with respect to such re9 quests. 

10 ‘‘(VIII) Such other information 

11 as the Secretary determines appro12 priate. 

13 ‘‘(ii) The plan shall provide— 

14 ‘‘(I) to each provider or supplier 

15 who seeks to enter into a contract 

16 with such plan to furnish applicable 

17 items and services under such plan, 

18 the list described in clause (i)(I) and 

19 any policies or procedures used by the 

20 plan for making determinations with 

21 respect to prior authorization re22 quests; 

23 ‘‘(II) to each such provider and 

24 supplier who does enter into such a 

25 contract, access to the criteria used by 


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1 the plan for making such determina2 tions, including an itemization of the 

3 medical or other documentation re4 quired to be submitted by a provider 

5 or supplier with respect to such a re6 quest, except to the extent that provi7 sion of access to such criteria would 

8 disclose proprietary information of 

9 such plan; and 

10 ‘‘(III) to each beneficiary subject 

11 to prior authorization under the plan, 

12 access to the criteria used by the plan 

13 for making such determinations, ex14 cept to the extent that provision of ac15 cess to such criteria would disclose 

16 proprietary information of such plan. 

17 ‘‘(B) REGULATIONS.—The Secretary shall, 

18 through notice and comment rulemaking, pro19 vide guidance to Medicare Advantage plans re20 garding— 

21 ‘‘(i) the establishment of criteria de22 scribed in subparagraph (A)(ii)(II) and ac23 cess to such criteria by providers and sup24 pliers in accordance with such subpara25 graph; and 


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1 ‘‘(ii) access to such criteria by bene2 ficiaries in accordance with subparagraph 

3 (A)(ii)(III). 

4 ‘‘(C) MEDPAC REPORT.—Not later than 3 

5 years after the date information is first sub6 mitted under subparagraph (A)(i), the Medicare 

7 Payment Advisory Commission shall submit to 

8 Congress a report on such information that in9 cludes a descriptive analysis of the use of prior 

10 authorization. As appropriate, the Commission 

11 should report on statistics including the fre12 quency of appeals and overturned decisions. 

13 The Commission shall provide recommenda14 tions, as appropriate, on any improvement that 

15 should be made to the electronic prior author16 ization programs of Medicare Advantage plans. 

17 ‘‘(4) BENEFICIARY PROTECTION STANDARDS.— 

18 The Secretary of Health and Human Services shall, 

19 through notice and comment rulemaking, specify re20 quirements with respect to the use of prior author21 ization by Medicare Advantage plans for applicable 

22 items and services to ensure— 

23 ‘‘(A) that such plans adopt transparent 

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1 tracts in effect with such plans for furnishing 

2 such items and services under such plans that 

3 allow for the modification of prior authorization 

4 requirements based on the performance of such 

5 providers and suppliers with respect to adher6 ence to evidence-based medical guidelines and 

7 other quality criteria; 

8 ‘‘(B) that such plans conduct annual re9 views of such items and services for which prior 

10 authorization requirements are imposed under 

11 such plans through a process that takes into ac12 count input from providers and suppliers with 

13 such contracts in effect and is based on analysis 

14 of past prior authorization requests and current 

15 coverage and clinical criteria; 

16 ‘‘(C) continuity of care for individuals 

17 transitioning to, or between, coverage under 

18 such plans in order to minimize any disruption 

19 to ongoing treatment attributable to prior au20 thorization requirements under such plans; 

21 ‘‘(D) that such plans make timely prior au22 thorization determinations, provide rationales 

23 for denials, and ensure requests are reviewed by 

24 qualified medical personnel; and 


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1 ‘‘(E) that such plans provide information 

2 on the appeals process to the beneficiary when 

3 denying any request for prior authorization 

4 with respect to an item or service. 

5 ‘‘(5) APPLICABLE ITEM OR SERVICE.—For pur6 poses of this subsection, the term ‘applicable item or 

7 service’ means, with respect to a Medicare Advan8 tage plan, any item or service for which benefits are 

9 available under such plan, other than a covered part 

10 D drug. 

11 ‘‘(6) REPORT TO CONGRESS.—Not later than 

12 the end of the second plan year beginning on or 

13 after the date of the enactment of this subsection, 

14 and biennially thereafter through the date that is 10 

15 years after such date of enactment, the Secretary 

16 shall submit to Congress a report containing an 

17 evaluation of the implementation of the requirements 

18 of this subsection, an analysis of an issues in imple19 menting such requirements faced by Medicare Ad20 vantage plans, and a description of the information 

21 submitted under paragraph (3)(A)(i) with respect 

22 to— 

23 ‘‘(A) in the case of the first such report, 

24 such second plan year; and 


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1 ‘‘(B) in the case of a subsequent report, 

2 the 2 full plan years preceding the date of the 

3 submission of such report.’’. 

4 (b) DETERMINATION CLARIFICATION.—Section 

5 1852(g)(1)(A) of the Social Security Act (42 U.S.C. 

6 1395w–22(g)(1)(A)) is amended by inserting ‘‘(including 

7 any decision made with respect to a prior authorization 

8 request for such service)’’ after ‘‘section’’. 

Æ 


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