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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4532 Introduced in Senate (IS)]

<DOC>

118th CONGRESS
  2d Session
                                S. 4532

     To amend title XVIII of the Social Security Act to establish 
   requirements with respect to the use of prior authorization under 
                       Medicare Advantage plans.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 13, 2024

   Mr. Marshall (for himself, Ms. Sinema, Mr. Thune, Mr. Brown, Mrs. 
  Blackburn, Mr. Whitehouse, Mr. Cassidy, Ms. Hassan, Mr. Tillis, Mr. 
 Carper, Mr. Cornyn, Mr. Casey, Mr. Boozman, Ms. Stabenow, Mr. Moran, 
  Ms. Klobuchar, Mr. Vance, Mrs. Gillibrand, Mr. Budd, Mr. Kaine, Mr. 
   Hawley, Mrs. Shaheen, Mrs. Hyde-Smith, Mr. Kelly, Mr. Cramer, Ms. 
  Rosen, Mr. Braun, Mr. Heinrich, Mr. Schmitt, Mr. Hickenlooper, Mr. 
Rubio, Mr. Peters, Mr. Rounds, Mr. Welch, Mr. Hoeven, Mr. Padilla, Ms. 
  Collins, Mr. Blumenthal, Mrs. Fischer, Mr. Warnock, Mr. Schatz, Mr. 
 Merkley, Mr. Fetterman, Ms. Warren, and Ms. Cortez Masto) 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.

    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 2024''.

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 plan years beginning on or 
                after January 1, 2027--
                            ``(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 plan years beginning on or 
                after January 1, 2026, 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 supporting documentation 
                        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 applicable technical 
                        standards and other requirements to promote the 
                        standardization and streamlining of electronic 
                        transactions adopted by the Secretary.
            ``(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 that were denied 
                                during the previous plan year by the 
                                plan in an initial determination and 
                                that were subsequently appealed.
                                    ``(IV) 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, 
                                categorized by each applicable item and 
                                service and categorized by each level 
                                of appeal (including judicial review).
                                    ``(V) 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.
                                    ``(VI) 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.
                                    ``(VII) 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.
                                    ``(VIII) 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.
                                    ``(IX) A disclosure and description 
                                of any technology described in 
                                subclause (V) that the plan utilized 
                                during the previous plan year in making 
                                determinations with respect to 
                                specified requests.
                                    ``(X) 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.
                                    ``(XI) 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 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.--For purposes of 
        paragraph (1)(A)(ii), with respect to the use of prior 
        authorization by Medicare Advantage plans for applicable items 
        and services, the enrollee protection standards specified in 
        this paragraph are--
                    ``(A) the adoption of 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) allowing 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) conducting 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 defined.--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 January 1, 2032, 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.--
                            ``(i) The secretary.--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.
                            ``(ii) CMS.--Not later than January 1, 
                        2027, the Centers for Medicare & Medicaid 
                        Services and the Office of National Coordinator 
                        for Health Information Technology shall submit 
                        to Congress and publish on the Internet website 
                        of the Centers for Medicare & Medicaid Services 
                        a report that--
                                    ``(I) defines the term `real-time 
                                decision' and details how the 
                                definition for such term may be updated 
                                based on any technological advances;
                                    ``(II) using the data submitted to 
                                the Secretary under paragraph 
                                (3)(A)(i), details a process for real-
                                time decisions for items and services 
                                for routinely approved services for 
                                purposes of the electronic prior 
                                authorization program described in 
                                paragraph (2); and
                                    ``(III) includes an analysis of--
                                            ``(aa) items and services 
                                        that are routinely approved;
                                            ``(bb) items and services 
                                        identified in item (aa) that 
                                        could be eligible for real-time 
                                        decisions;
                                            ``(cc) how establishing 
                                        real-time decisions for such 
                                        items and services could--

                                                    ``(AA) improve 
                                                enrollee access to 
                                                benefits under this 
                                                part;

                                                    ``(BB) produce 
                                                operational 
                                                efficiencies for 
                                                providers of services 
                                                and suppliers and 
                                                Medicare Advantage 
                                                plans; and

                                                    ``(CC) reduce 
                                                health disparities for 
                                                Medicare Advantage 
                                                enrollees in rural and 
                                                low-income communities; 
                                                and

                                            ``(dd) how the use of 
                                        automated decision-making and 
                                        artificial intelligence by 
                                        Medicare Advantage plans impact 
                                        patient access, including 
                                        disparities in access for rural 
                                        and low-income beneficiaries, 
                                        to routinely approved items and 
                                        services.''.
    (b) Providing the Secretary Authority To Enforce 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 any timeframe established by the Secretary under paragraph 
        (6)'' after ``paragraph (3)'';
            (2) in paragraph (3)(B)(iii), by inserting ``(or, subject 
        to subsection (o), 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 2024, any timeframe 
        established by the Secretary under paragraph (6))'' 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), the 
        Secretary may establish, for purposes of an organization 
        determination made with respect to a prior authorization 
        request for an item or service to be furnished to an 
        individual, timeframes, such as 24 hours, for the organization 
        to notify the enrollee (and the physician involved, as 
        appropriate) of such determination for--
                    ``(A) a request for expedited determination 
                described in paragraph (3)(A);
                    ``(B) a real time decision for routinely approved 
                items and services; and
                    ``(C) any other prior authorization request.''.
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