Read 1st time February 1, 2000, and 1000 copies ordered printed.
ANNE C. WALKER, Chief Clerk
AN ACT
To repeal section 354.618, RSMo Supp. 1999, relating to managed care, and to enact in lieu thereof six new sections relating to the same subject.
Section A. Section 354.618, RSMo Supp. 1999, is repealed and six new sections enacted in lieu thereof, to be known as sections 354.618, 354.800, 354.805, 354.810, 1 and 2, to read as follows:
354.618. 1. A health carrier shall be required to offer [as an additional health plan, an] all health plans as open referral health [plan whenever it markets a gatekeeper group plan as an exclusive or full replacement health plan offering to a group contract holder:
(1) In the case of group health plans offered to employers of fifty or fewer employees, the decision to accept or reject the additional open referral plan offering shall be made by the group contract holder. For health plans marketed to employers of over fifty employees, the decision to accept or reject shall be made by the employee;
(2)] plans. Contracts currently in existence shall offer the additional open referral health plan at the next annual renewal after August 28, [1997] 2000; however, multiyear group contracts need not comply until the expiration of their current multiyear term unless the group contract holder elects to comply before that time[;
(3) If an employer provides more than one health plan to its employees and at least one is an open referral plan, then all health benefit plans offered by such employer shall be exempt from the requirements of this section].
2. For the purposes of this [act] chapter, the [following terms shall mean:
(1) "Open referral plan",] term "open referral plan" means a plan in which the enrollee is allowed to obtain treatment for covered benefits without a referral from a primary care physician from any person licensed to provide such treatment[;
(2) "Gatekeeper group plan", a plan in which the enrollee is required to obtain a referral from a primary care professional in order to access specialty care].
3. Any health benefit plan provided pursuant to the Medicaid program shall be exempt from the requirements of this section.
4. A health carrier shall provide prescription cards to all enrollees in health plans which provide pharmaceutical coverage. Such cards shall indicate the amount of any copayment for which the enrollee is responsible.
5. A health carrier shall have a procedure by which a female enrollee may seek the health care services of an obstetrician/gynecologist at least once a year without first obtaining prior approval from the enrollee's primary care provider if the benefits are covered under the enrollee's health benefit plan, and the obstetrician/gynecologist is a member of the health carrier's network. In no event shall a health carrier be required to permit an enrollee to have health care services delivered by a nonparticipating obstetrician/gynecologist. An obstetrician/gynecologist who delivers health care services directly to an enrollee shall report such visit and health care services provided to the enrollee's primary care provider. [A health carrier may require an enrollee to obtain a referral from the primary care physician, if such enrollee requires more than one annual visit with an obstetrician/gynecologist.
5.] 6. Except for good cause, a health carrier shall be prohibited either directly, or indirectly through intermediaries, from discriminating between eye care providers when selecting among providers of health services for enrollment in the network and when referring enrollees for health services provided within the scope of those professional licenses and when reimbursing amounts for covered services among persons duly licensed to provide such services. For the purposes of this section, an eye care provider may be either an optometrist licensed pursuant to chapter 336, RSMo, or a physician who specializes in opthamologic medicine, licensed pursuant to chapter 334, RSMo.
[6.] 7. Nothing contained in this section shall be construed as to require a health carrier to pay for health care services not provided for in the terms of a health benefit plan.
[7.] 8. Any health carrier, which is sponsored by a federally qualified health center and is presently in existence and which has been in existence for less than three years shall be exempt from this section for a period not to exceed two years from August 28, 1997.
[8.] 9. A health carrier shall not be required to offer the direct access rider for a group contract holder's health benefit plan if the health benefit plan is being provided pursuant to the terms of a collective bargaining agreement with a labor union, in accordance with federal law and the labor union has declined such option on behalf of its members.
[9.] 10. Nothing in this [act] chapter shall be construed to preempt the employer's right to select the health care provider pursuant to section 287.140, RSMo, in a case where an employee incurs a work-related injury covered by the provisions of chapter 287, RSMo.
[10.] 11. Nothing contained in this [act] chapter shall apply to certified managed care organizations while providing medical treatment to injured employees entitled to receive health benefits [under] pursuant to chapter 287, RSMo, pursuant to contractual arrangements with employers, or their insurers, [under] pursuant to section 287.135, RSMo.
354.800. As used in sections 354.800 to 354.810, the following terms mean:
(1) "Appropriate and medically necessary", the standard for health care services as determined by physicians and health care providers in accordance with the prevailing practices and standards of the medical profession and community;
(2) "Enrollee", an individual who is enrolled in a health care plan, including covered dependents;
(3) "Health care plan", any plan whereby any person undertakes to provide, arrange for, pay for or reimburse any part of the cost of any health care services;
(4) "Health care provider", any physician, hospital, or other person who is licensed or otherwise authorized in this state to furnish health care services;
(5) "Health care treatment decision", a determination made when medical services are actually provided by the health care plan and a decision which affects the quality of the diagnosis, care or treatment provided to the plan's insureds or enrollees;
(6) "Health insurance carrier", an insurance company that is licensed or otherwise authorized in this state to issue policies of health insurance;
(7) "Health maintenance organization", the definition provided in section 354.400;
(8) "Managed care entity", any entity which delivers, administers or assumes risk for health care services with systems or techniques to control or influence the quality, accessibility, utilization, or costs and prices of such services to a defined enrollee population, but does not include an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer or a licensed pharmacy;
(9) "Ordinary care", in the case of a health insurance carrier, health maintenance organization or managed care entity, that degree of care that a carrier, organization or entity of ordinary prudence would use under the same or similar circumstances. In the case of a person who is an employee, agent or representative of a health insurance carrier, health maintenance organization or managed care entity, "ordinary care" means that degree of care that a person of ordinary prudence in the same profession, specialty or area of practice would use in the same or similar circumstances.
354.805. 1. A health insurance carrier, health maintenance organization or managed care entity shall exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an insured or enrollee proximately caused by its failure to exercise such ordinary care.
2. A health insurance carrier, health maintenance organization or managed care entity is liable for damages for harm to an insured or enrollee proximately caused by the health care treatment decisions made by its:
(1) Employees;
(2) Agents; or
(3) Representatives who are acting on its behalf and over whom it has the right to exercise influence or control, or has actually exercised influence or control which results in the failure to exercise ordinary care.
3. A health insurance carrier, health maintenance organization or managed care entity shall have the following defenses to any action asserted against it:
(1) Neither the health insurance carrier, health maintenance organization or managed care entity, nor any employee, agent or representative for whose conduct such carrier, organization or entity is liable pursuant to subsection 2 of this section, controlled, influenced or participated in the health care treatment decision; and
(2) Such carrier, organization or entity did not deny or delay payment for any treatment prescribed or recommended by a provider to the insured or enrollee.
4. The standards in subsections 1 and 2 of this section shall not create an obligation on the part of a health insurance carrier, health maintenance organization or managed care entity to provide treatment to an insured or enrollee which is not covered by the health care plan of such carrier, organization or entity.
5. Nothing in this section shall create any liability on the part of an employer, an employer group purchasing organization or pharmacy licensed in this state that purchases coverage or assumes risk on behalf of its employees.
6. A health insurance carrier, health maintenance organization or managed care entity shall not remove a physician or health care provider from its plan or refuse to renew such physician or provider with its plan for advocating on behalf of an enrollee for appropriate and medically necessary health care for the enrollee.
7. A health insurance carrier, health maintenance organization or managed care entity shall not enter into a contract with a physician, hospital, or other health care provider or pharmaceutical company if such contract includes an indemnification or hold harmless clause for the acts or conduct of such carrier, organization or entity. Any such indemnification or hold harmless clause in an existing contract is hereby declared void.
8. No health insurance carrier, health maintenance organization or managed care entity shall assert any law of this state prohibiting such carrier, organization or entity from practicing medicine or being licensed to practice medicine as a defense in any action brought against it pursuant to this section.
9. In an action against a health insurance carrier, health maintenance organization or other managed care entity, a finding that a physician or other health care provider is an employee, agent or representative of such carrier, organization or entity shall be based solely on proof that such physician's or provider's name appears in a listing of approved physicians or health care providers made available to insureds or enrollees pursuant to a health care plan.
10. Nothing in this section shall apply to worker's compensation insurance coverage.
354.810. 1. A person shall not maintain a cause of action pursuant to sections 354.800 to 354.810 of this act against a health insurance carrier, health maintenance organization or managed care entity that is required to comply with the utilization review requirements of sections 376.1350 to 376.1390, RSMo, unless the affected insured or enrollee, or the insured's or enrollee's representative:
(1) Has exhausted the appeals and review applicable pursuant to the utilization review requirements; or
(2) Before instituting an action:
(a) Gives written notice of the claim as provided by subsection 2 of this section; and
(b) Agrees to submit the claim to a review by an independent review organization as required in subsection 3 of this section.
2. The notice required in paragraph (a) of subdivision (2) of subsection 1 of this section shall be delivered or mailed to the health insurance carrier, health maintenance organization or managed care entity against whom the action is made not later than the thirtieth day before the date the claim is filed.
3. The insured or enrollee, or the insured's or enrollee's representative shall submit the claim to a review by an independent review organization if the health insurance carrier, health maintenance organization or managed care entity against whom the claim is made requests the review not later than the fourteenth day after the date notice pursuant to paragraph (a) of subdivision (2) of subsection 1 of this section is received by such carrier, organization or entity. If such carrier, organization or entity does not request the review within the period specified by this subsection, the insured or enrollee, or the insured's or enrollee's representative is not required to submit the claim to independent review before maintaining the action.
4. Subject to subsection 5 of this section, if the enrollee has not complied with subsection 1 of this section, an action pursuant to this action shall not be dismissed by the court, but the court may, in its discretion, order the parties to submit to an independent review, or mediation or other nonbinding alternative dispute resolution, and may abate the action for a period not to exceed thirty days for such purposes. Such orders of the court shall be the sole remedy available to a party complaining of an enrollee's failure to comply with subsection 1 of this section.
5. The enrollee is not required to comply with subsection 3 of this section and no abatement or other order pursuant to subsection 4 of this section for failure to comply shall be imposed if the enrollee has filed a pleading alleging in substance that:
(1) Harm to the enrollee has already occurred because of the conduct of the health insurance carrier, health maintenance organization or managed care entity, or because of an act or omission of an employee, agent, ostensible agent or representative of such carrier, organization or entity for whose conduct it is liable pursuant to subsection 2 of section 354.805; and
(2) The review would not be beneficial to the enrollee, unless the court, upon motion by a defendant carrier, organization or entity finds after hearing that such pleading was not made in good faith, in which case the court may enter an order pursuant to subsection 4 of this section.
6. If the insured or enrollee, or the insured's or enrollee's representative seeks to exhaust the appeals and review, or provides notice, as required by subsection 1 of this section, before the statute of limitations applicable to a claim against a managed care entity has expired, the limitations period is tolled until the later of:
(1) The thirtieth day after the date the insured or enrollee, or the insured's or enrollee's representative has exhausted the process for appeals and review applicable pursuant to the utilization review requirements; or
(2) The fortieth day after the date the insured or enrollee, or the insured's or enrollee's representative gives notice pursuant to paragraph (a) of subdivision (2) of subsection 1 of this section.
7. The provisions of this section shall not prohibit an insured or enrollee from pursuing other appropriate remedies, including injunctive relief, a declaratory judgment or relief available pursuant to state or federal law, if the requirement of exhausting the process for appeal and review places the insured's or enrollee's health in serious jeopardy.
Section 1. Every managed care plan, as defined in section 354.600, RSMo, shall offer coverage for preventative services, including, but not limited to:
(1) Annual physical examinations;
(2) Immunizations;
(3) Medications and treatments prescribed for the prevention or suppression of symptoms associated with various diseases and conditions; and
(4) Screening and testing for various diseases and conditions, such as cancer screenings, blood sugar tests for diabetes, and screenings and testing for any other similar diseases or conditions which may be more effectively treated through early detection.
Section 2. A health insurance carrier, as defined in section 354.800, RSMo, shall pay interest from the date of
treatment on the amount of the claim for which the insurer is liable.
Missouri House of Representatives