I 

117TH CONGRESS 

1ST SESSION H. R. 3173 

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 

MAY 13, 2021 

Ms. DELBENE (for herself, Mr. KELLY of Pennsylvania, Mr. BERA, Mr. 

BUCSHON, Mr. RUSH, Mr. WENSTRUP, Mr. EVANS, Mr. BURGESS, Mr. 

MICHAEL F. DOYLE of Pennsylvania, Mr. SMUCKER, Mr. SUOZZI, Mr. 

DUNN, Ms. SCHRIER, Mr. ARRINGTON, Mr. PASCRELL, Mr. JOYCE of 

Pennsylvania, Ms. DEGETTE, Mr. FERGUSON, Mr. BRENDAN F. BOYLE

of Pennsylvania, Mr. LONG, Mr. O’HALLERAN, Mr. LAHOOD, Mr. KILDEE, Mr. PENCE, Mr. SCHRADER, Mr. SMITH of Missouri, Ms. SEWELL, 

Mr. ARMSTRONG, Ms. KELLY of Illinois, Mr. RICE of South Carolina, Mr. 

HIGGINS of New York, Mr. HARRIS, Ms. BARRAGA ́N, Mrs. MILLER of 

West Virginia, Ms. MOORE of Wisconsin, Mr. MURPHY of North Carolina, 

Mr. WELCH, Mr. SCHWEIKERT, Mr. THOMPSON of California, Mr. KELLER, Mr. BUTTERFIELD, Mrs. WALORSKI, Mr. LARSON of Connecticut, 

Mr. THOMPSON of Pennsylvania, Mr. SARBANES, Mr. KELLY of Mississippi, Mr. CARTWRIGHT, Mr. MEUSER, Ms. SCANLON, Mr. VAN DREW, 

Ms. WILD, Mr. FITZPATRICK, Mr. CICILLINE, Mr. GROTHMAN, Mr. LIEU, 

Mr. RESCHENTHALER, Mr. CONNOLLY, Ms. SALAZAR, Mr. MOULTON, 

Mr. FLEISCHMANN, Mrs. MCBATH, Mr. ALLEN, Mr. NADLER, Mr. 

BURCHETT, Mr. ALLRED, Mr. RUTHERFORD, Mr. RASKIN, Mr. POSEY, 

Mr. CLEAVER, Mr. JOHNSON of South Dakota, Mrs. AXNE, Mr. AUSTIN

SCOTT of Georgia, Ms. LOIS FRANKEL of Florida, Mr. LAMBORN, Mr. 

LANGEVIN, Mr. NORMAN, Mr. KIM of New Jersey, Mr. MEIJER, Ms. PINGREE, Mr. LYNCH, Mr. PAPPAS, Ms. ROSS, Mr. SMITH of Washington, 

Ms. STRICKLAND, Ms. TENNEY, Ms. DEAN, Ms. HOULAHAN, Ms. 

MCCOLLUM, Mr. GIBBS, Ms. HERRERA BEUTLER, Mr. LAMB, and Mr. 

BUCHANAN) 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 


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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 2021’’. 

6 SEC. 2. ESTABLISHING REQUIREMENTS WITH RESPECT TO 

7 THE USE OF PRIOR AUTHORIZATION UNDER 

8 MEDICARE ADVANTAGE PLANS. 

9 (a) IN GENERAL.—Section 1852 of the Social Secu10 rity Act (42 U.S.C. 1395w–22) is amended by adding at 

11 the end the following new subsection: 

12 ‘‘(o) PRIOR AUTHORIZATION REQUIREMENTS.— 

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

14 plan year beginning after the date of the enactment 

15 of this subsection, in the case of a Medicare Advan16 tage plan that imposes any prior authorization re17 quirement with respect to any applicable item or 

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

19 plan year, such plan shall— 

20 ‘‘(A) establish the electronic prior author21 ization program described in paragraph (2) and 


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1 issue real-time decisions with respect to prior 

2 authorization requests for items and services 

3 identified by the Secretary under subparagraph 

4 (C)(ii) of such paragraph; 

5 ‘‘(B) meet the transparency requirements 

6 specified in paragraph (3); and 

7 ‘‘(C) meet the beneficiary protection stand8 ards specified pursuant to paragraph (4). 

9 ‘‘(2) ELECTRONIC PRIOR AUTHORIZATION PRO10 GRAM.— 

11 ‘‘(A) IN GENERAL.—For purposes of para12 graph (1)(A), the electronic prior authorization 

13 program described in this paragraph is a pro14 gram that provides for the secure electronic 

15 transmission of— 

16 ‘‘(i) a prior authorization request 

17 from a health care professional to a Medi18 care Advantage plan with respect to an ap19 plicable item or service to be furnished to 

20 an individual, including such clinical infor21 mation necessary to evidence medical ne22 cessity; and 

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

24 this paragraph, from such plan to such 

25 professional. 


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1 ‘‘(B) ELECTRONIC TRANSMISSION.— 

2 ‘‘(i) EXCLUSIONS.—For purposes of 

3 this paragraph, a facsimile, a proprietary 

4 payer portal that does not meet standards 

5 specified by the Secretary, or an electronic 

6 form shall not be treated as an electronic 

7 transmission described in subparagraph 

8 (A). 

9 ‘‘(ii) STANDARDS.— 

10 ‘‘(I) IN GENERAL.—In order to 

11 ensure appropriate clinical outcome 

12 for individuals, for purposes of this 

13 paragraph, an electronic transmission 

14 described in subparagraph (A) shall 

15 comply with technical standards 

16 adopted by the Secretary in consulta17 tion with standard-setting organiza18 tions determined appropriate by the 

19 Secretary, health care professionals, 

20 Medicare Advantage organizations, 

21 and health information technology 

22 software vendors. In adopting such 

23 standards with respect to which an 

24 electronic transmission described in 

25 subparagraph (A) shall comply, the 


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1 Secretary shall ensure that such 

2 transmissions support attachments 

3 containing applicable clinical informa4 tion and shall prioritize the adoption 

5 of standards that support integration 

6 with interoperable health information 

7 technology certified under a program 

8 of voluntary certification kept or rec9 ognized by the National Coordinator 

10 for Health Information Technology 

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

12 the Public Health Service Act. 

13 ‘‘(II) TRANSACTION STAND14 ARD.—The Secretary shall include in 

15 the standards adopted under sub16 clause (I) a standard with respect to 

17 the transmission of attachments de18 scribed in such subclause, and data 

19 elements and operating rules for such 

20 transmission, consistent with health 

21 care industry standards. 

22 ‘‘(C) REAL-TIME DECISIONS.— 

23 ‘‘(i) IN GENERAL.—The program de24 scribed in subparagraph (A) shall provide 

25 for real-time decisions (as defined by the 


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1 Secretary in accordance with clause (iv)) 

2 by a Medicare Advantage plan with respect 

3 to prior authorization requests for applica4 ble items and services identified by the 

5 Secretary pursuant to clause (ii) for a plan 

6 year if such requests contain all docu7 mentation described in paragraph 

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

9 ‘‘(ii) IDENTIFICATION OF RE10 QUESTS.—For purposes of clause (i) and 

11 with respect to a period of 2 plan years, 

12 the Secretary shall identify, not later than 

13 the date on which the initial announcement 

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

15 the first plan year of such period is re16 quired to be announced, applicable items 

17 and services for which prior authorization 

18 requests are routinely approved, and shall 

19 update the identification of such items and 

20 services for each subsequent period of 2 

21 plan years. 

22 ‘‘(iii) DATA COLLECTION AND CON23 SULTATION WITH RELEVANT ELIGIBLE

24 PROFESSIONAL ORGANIZATIONS AND REL25 EVANT STAKEHOLDERS.—The Secretary 


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1 shall use the information described in 

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

3 issue a request for information from Medi4 care Advantage plans, providers, suppliers, 

5 beneficiary advocacy organizations, con6 sumer organizations, and other stake7 holders for purposes of identifying requests 

8 for a period under clause (ii). 

9 ‘‘(iv) DEFINITION OF REAL-TIME DE10 CISION.— 

11 ‘‘(I) IN GENERAL.—In estab12 lishing the definition of a real-time 

13 decision for purposes of clause (i), the 

14 Secretary shall take into account cur15 rent medical practice, technology, 

16 health care industry standards, and 

17 other relevant information and factors 

18 to ensure the accurate and timely fur19 nishing of items and services to indi20 viduals. 

21 ‘‘(II) UPDATE.—The Secretary 

22 shall update, not less often than once 

23 every 2 years, the definition of a real24 time decision for purposes of clause 

25 (i), taking into account changes in 


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1 medical practice, changes in tech2 nology, changes in health care indus3 try standards, and other relevant in4 formation, such as the information 

5 submitted by Medicare Advantage 

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

7 factors to ensure the accurate and 

8 timely furnishing of items and services 

9 to individuals. 

10 ‘‘(v) IMPLEMENTATION.—The Sec11 retary shall use notice and comment rule12 making, which may include use of the an13 nual call letter process under this part, for 

14 each of the following: 

15 ‘‘(I) Establishing the definition 

16 of a ‘real-time decision’ for purposes 

17 of clause (i). 

18 ‘‘(II) Updating such definition 

19 pursuant to clause (iv)(II). 

20 ‘‘(III) Identifying applicable 

21 items or services pursuant to clause 

22 (ii) for the initial period of 2 plan 

23 years as described in such clause. 

24 ‘‘(IV) Updating the identification 

25 of such items and services for each 


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1 subsequent period of 2 plan years as 

2 described in such clause. 

3 ‘‘(3) TRANSPARENCY REQUIREMENTS.— 

4 ‘‘(A) IN GENERAL.—For purposes of para5 graph (1)(B), the transparency requirements 

6 specified in this paragraph are, with respect to 

7 a Medicare Advantage plan, the following: 

8 ‘‘(i) The plan, annually and in a man9 ner specified by the Secretary, shall submit 

10 to the Secretary the following information: 

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

12 and services that are described in sub13 section (a)(1)(B) that are subject to a 

14 prior authorization requirement under 

15 the plan. 

16 ‘‘(II) The percentage of prior au17 thorization requests approved during 

18 the previous plan year by the plan in 

19 an initial determination with respect 

20 to each such item and service. 

21 ‘‘(III) The percentage of such re22 quests that were initially denied and 

23 that were subsequently appealed in 

24 any manner, and the percentage of 

25 such appealed requests that were 


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1 overturned, with respect to each such 

2 item and service, broken down by each 

3 stage of appeal (including judicial re4 view). The plan may include informa5 tion regarding the number of initial 

6 denials due to request submissions 

7 that did not meet clinical evidence 

8 standards. 

9 ‘‘(IV) The percentage of such re10 quests that were denied and the per11 centage of the total number of denied 

12 requests that were denied as a result 

13 of decision support technology or 

14 other clinical decision-making tools. 

15 ‘‘(V) The average and the median 

16 amount of time (in hours) that 

17 elapsed during the previous plan year 

18 between the submission of such a re19 quest to the plan and a determination 

20 by the plan with respect to such re21 quest for each such item and service, 

22 excluding any such requests that did 

23 not contain all information required to 

24 be submitted by the plan. 


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1 ‘‘(VI) A list that includes a de2 scription of each occurrence during 

3 the previous plan year in which the 

4 plan made a determination to approve 

5 or deny an item or service in the case 

6 where a provider furnished an addi7 tional or differing item or service dur8 ing the peroperative period of a sur9 gical or otherwise invasive procedure 

10 that such provider determined was 

11 medically necessary. 

12 ‘‘(VII) A disclosure and descrip13 tion of any software decision-making 

14 tools the plan utilizes in making de15 terminations with respect to such re16 quests. 

17 ‘‘(VIII) Such other information 

18 as the Secretary determines appro19 priate. 

20 ‘‘(ii) The plan shall provide— 

21 ‘‘(I) to each provider or supplier 

22 who seeks to enter into a contract 

23 with such plan to furnish applicable 

24 items and services under such plan, 

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


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1 any policies or procedures used by the 

2 plan for making determinations with 

3 respect to prior authorization re4 quests; 

5 ‘‘(II) to each such provider and 

6 supplier who does enter into such a 

7 contract, access to the criteria used by 

8 the plan for making such determina9 tions, including an itemization of the 

10 medical or other documentation re11 quired to be submitted by a provider 

12 or supplier with respect to such a re13 quest, except to the extent that provi14 sion of access to such criteria would 

15 disclose proprietary information of 

16 such plan; and 

17 ‘‘(III) to each beneficiary subject 

18 to prior authorization under the plan, 

19 access to the criteria used by the plan 

20 for making such determinations, ex21 cept to the extent that provision of ac22 cess to such criteria would disclose 

23 proprietary information of such plan. 

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

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1 vide guidance to Medicare Advantage plans re2 garding— 

3 ‘‘(i) the establishment of criteria de4 scribed in subparagraph (A)(ii)(II) and ac5 cess to such criteria by providers and sup6 pliers in accordance with such subpara7 graph; and 

8 ‘‘(ii) access to such criteria by bene9 ficiaries in accordance with subparagraph 

10 (A)(ii)(III). 

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

12 years after the date information is first sub13 mitted under subparagraph (A)(i), the Medicare 

14 Payment Advisory Commission shall submit to 

15 Congress a report on such information that in16 cludes a descriptive analysis of the use of prior 

17 authorization. As appropriate, the Commission 

18 should report on statistics including the fre19 quency of appeals and overturned decisions. 

20 The Commission shall provide recommenda21 tions, as appropriate, on any improvement that 

22 should be made to the electronic prior author23 ization programs of Medicare Advantage plans. 

24 ‘‘(4) BENEFICIARY PROTECTION STANDARDS.— 

25 The Secretary of Health and Human Services shall, 


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1 through notice and comment rulemaking, specify re2 quirements with respect to the use of prior author3 ization by Medicare Advantage plans for applicable 

4 items and services to ensure— 

5 ‘‘(A) that such plans adopt transparent 

6 prior authorization programs developed in con7 sultation with providers and suppliers with con8 tracts in effect with such plans for furnishing 

9 such items and services under such plans that 

10 allow for the modification of prior authorization 

11 requirements based on the performance of such 

12 providers and suppliers with respect to adher13 ence to evidence-based medical guidelines and 

14 other quality criteria; 

15 ‘‘(B) that such plans conduct annual re16 views of such items and services for which prior 

17 authorization requirements are imposed under 

18 such plans through a process that takes into ac19 count input from providers and suppliers with 

20 such contracts in effect and is based on analysis 

21 of past prior authorization requests and current 

22 coverage and clinical criteria; 

23 ‘‘(C) continuity of care for individuals 

24 transitioning to, or between, coverage under 

25 such plans in order to minimize any disruption 


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1 to ongoing treatment attributable to prior au2 thorization requirements under such plans; 

3 ‘‘(D) that such plans make timely prior au4 thorization determinations, provide rationales 

5 for denials, and ensure requests are reviewed by 

6 qualified medical personnel; and 

7 ‘‘(E) that such plans provide information 

8 on the appeals process to the beneficiary when 

9 denying any request for prior authorization 

10 with respect to an item or service. 

11 ‘‘(5) APPLICABLE ITEM OR SERVICE.—For pur12 poses of this subsection, the term ‘applicable item or 

13 service’ means, with respect to a Medicare Advan14 tage plan, any item or service for which benefits are 

15 available under such plan, other than a covered part 

16 D drug. 

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

18 the end of the second plan year beginning on or 

19 after the date of the enactment of this subsection, 

20 and biennially thereafter through the date that is 10 

21 years after such date of enactment, the Secretary 

22 shall submit to Congress a report containing an 

23 evaluation of the implementation of the requirements 

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1 vantage plans, and a description of the information 

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

3 to— 

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

5 such second plan year; and 

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

7 the 2 full plan years preceding the date of the 

8 submission of such report.’’. 

9 (b) DETERMINATION CLARIFICATION.—Section 

10 1852(g)(1)(A) of the Social Security Act (42 U.S.C. 

11 1395w–22(g)(1)(A)) is amended by inserting ‘‘(including 

12 any decision made with respect to a prior authorization 

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

Æ 


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