1.1                          A bill for an act 
  1.2             relating to health; modifying the Minnesota 
  1.3             Utilization Review Act; adding to the grounds in which 
  1.4             the board of medical practice may impose disciplinary 
  1.5             action; amending Minnesota Statutes 2000, sections 
  1.6             62M.06, subdivision 3; 62M.09, subdivisions 3, 3a, 6, 
  1.7             by adding a subdivision; 62M.10, subdivision 7; 
  1.8             147.091, subdivision 1. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 2000, section 62M.06, 
  1.11  subdivision 3, is amended to read: 
  1.12     Subd. 3.  [STANDARD APPEAL.] The utilization review 
  1.13  organization must establish procedures for appeals to be made 
  1.14  either in writing or by telephone. 
  1.15     (a) A utilization review organization shall notify in 
  1.16  writing the enrollee, attending health care professional, and 
  1.17  claims administrator of its determination on the appeal within 
  1.18  30 days upon receipt of the notice of appeal.  If the 
  1.19  utilization review organization cannot make a determination 
  1.20  within 30 days due to circumstances outside the control of the 
  1.21  utilization review organization, the utilization review 
  1.22  organization may take up to 14 additional days to notify the 
  1.23  enrollee, attending health care professional, and claims 
  1.24  administrator of its determination.  If the utilization review 
  1.25  organization takes any additional days beyond the initial 30-day 
  1.26  period to make its determination, it must inform the enrollee, 
  1.27  attending health care professional, and claims administrator, in 
  2.1   advance, of the extension and the reasons for the extension. 
  2.2      (b) The documentation required by the utilization review 
  2.3   organization may include copies of part or all of the medical 
  2.4   record and a written statement from the attending health care 
  2.5   professional. 
  2.6      (c) Prior to upholding the initial determination not to 
  2.7   certify for clinical reasons, the utilization review 
  2.8   organization shall conduct a review of the documentation by a 
  2.9   physician who did not make the initial determination not to 
  2.10  certify. 
  2.11     (d) The process established by a utilization review 
  2.12  organization may include defining a period within which an 
  2.13  appeal must be filed to be considered.  The time period must be 
  2.14  communicated to the enrollee and attending health care 
  2.15  professional when the initial determination is made. 
  2.16     (e) An attending health care professional or enrollee who 
  2.17  has been unsuccessful in an attempt to reverse a determination 
  2.18  not to certify shall, consistent with section 72A.285, be 
  2.19  provided the following: 
  2.20     (1) a complete summary of the review findings; 
  2.21     (2) qualifications of the reviewers, including any license, 
  2.22  certification, or specialty designation; and 
  2.23     (3) the relationship between the enrollee's diagnosis and 
  2.24  the review criteria used as the basis for the decision, 
  2.25  including the specific rationale for the reviewer's decision. 
  2.26     (f) In cases of appeal to reverse a determination not to 
  2.27  certify for clinical reasons, the utilization review 
  2.28  organization must, upon request of the attending health care 
  2.29  professional, ensure that a physician of the utilization review 
  2.30  organization's choice in the same or a similar general specialty 
  2.31  as typically manages the medical condition, procedure, or 
  2.32  treatment under discussion is reasonably available to review the 
  2.33  case. 
  2.34     (g) If the initial determination is not reversed on appeal, 
  2.35  the utilization review organization must include in its 
  2.36  notification the right to submit the appeal to the external 
  3.1   review process described in section 62Q.73 and the procedure for 
  3.2   initiating the external process. 
  3.3      Sec. 2.  Minnesota Statutes 2000, section 62M.09, 
  3.4   subdivision 3, is amended to read: 
  3.5      Subd. 3.  [PHYSICIAN REVIEWER INVOLVEMENT.] (a) A physician 
  3.6   must review all cases in which the utilization review 
  3.7   organization has concluded that a determination not to certify 
  3.8   for clinical reasons is appropriate.  
  3.9      (b) The physician conducting the review must be licensed in 
  3.10  this state.  This paragraph does not apply to reviews conducted 
  3.11  in connection with policies issued by a health plan company that 
  3.12  is assessed less than three percent of the total amount assessed 
  3.13  by the Minnesota comprehensive health association.  
  3.14     (c) The physician should be reasonably available by 
  3.15  telephone to discuss the determination with the attending health 
  3.16  care professional.  
  3.17     (d) This subdivision does not apply to outpatient mental 
  3.18  health or substance abuse services governed by subdivision 3a. 
  3.19     Sec. 3.  Minnesota Statutes 2000, section 62M.09, 
  3.20  subdivision 3a, is amended to read: 
  3.21     Subd. 3a.  [MENTAL HEALTH AND SUBSTANCE ABUSE REVIEWS.] A 
  3.22  peer of the treating mental health or substance abuse provider 
  3.23  or a physician must review requests for outpatient services in 
  3.24  which the utilization review organization has concluded that a 
  3.25  determination not to certify a mental health or substance abuse 
  3.26  service for clinical reasons is appropriate, provided that any 
  3.27  final determination not to certify treatment is made by a 
  3.28  psychiatrist certified by the American Board of Psychiatry and 
  3.29  Neurology and, appropriately licensed in the this state in 
  3.30  which the psychiatrist resides, and currently practicing in the 
  3.31  field of mental health or substance abuse treatment.  
  3.32  Notwithstanding the notification requirements of section 62M.05, 
  3.33  a utilization review organization that has made an initial 
  3.34  decision to certify in accordance with the requirements of 
  3.35  section 62M.05 may elect to provide notification of a 
  3.36  determination to continue coverage through facsimile or mail. 
  4.1      Sec. 4.  Minnesota Statutes 2000, section 62M.09, 
  4.2   subdivision 6, is amended to read: 
  4.3      Subd. 6.  [PHYSICIAN CONSULTANTS.] A utilization review 
  4.4   organization must use physician consultants in the appeal 
  4.5   process described in section 62M.06, subdivision 3.  The 
  4.6   physician consultants should include, as needed and available, 
  4.7   specialists who are must be board-certified, or board-eligible 
  4.8   and working towards certification, in a specialty board approved 
  4.9   by the American Board of Medical Specialists or the American 
  4.10  Board of Osteopathy. 
  4.11     Sec. 5.  Minnesota Statutes 2000, section 62M.09, is 
  4.12  amended by adding a subdivision to read: 
  4.13     Subd. 9.  [ANNUAL REPORT.] A utilization review 
  4.14  organization shall file an annual report with the commissioner 
  4.15  of commerce that includes: 
  4.16     (1) per 1,000 claims, the number and rate of claims denied 
  4.17  based on medical necessity for each procedure or service; and 
  4.18     (2) the number and rate of denials overturned on appeal. 
  4.19     Sec. 6.  Minnesota Statutes 2000, section 62M.10, 
  4.20  subdivision 7, is amended to read: 
  4.21     Subd. 7.  [AVAILABILITY OF CRITERIA.] Upon request, a 
  4.22  utilization review organization shall provide to an enrollee or 
  4.23  to a, a provider, and the commissioner of commerce the criteria 
  4.24  used for a specific procedure to determine the medical 
  4.25  necessity, appropriateness, and efficacy of that a procedure or 
  4.26  service and identify the database, professional treatment 
  4.27  guideline, or other basis for the criteria. 
  4.28     Sec. 7.  Minnesota Statutes 2000, section 147.091, 
  4.29  subdivision 1, is amended to read: 
  4.30     Subdivision 1.  [GROUNDS LISTED.] The board may refuse to 
  4.31  grant a license or may impose disciplinary action as described 
  4.32  in section 147.141 against any physician.  The following conduct 
  4.33  is prohibited and is grounds for disciplinary action: 
  4.34     (a) Failure to demonstrate the qualifications or satisfy 
  4.35  the requirements for a license contained in this chapter or 
  4.36  rules of the board.  The burden of proof shall be upon the 
  5.1   applicant to demonstrate such qualifications or satisfaction of 
  5.2   such requirements. 
  5.3      (b) Obtaining a license by fraud or cheating, or attempting 
  5.4   to subvert the licensing examination process.  Conduct which 
  5.5   subverts or attempts to subvert the licensing examination 
  5.6   process includes, but is not limited to:  (1) conduct which 
  5.7   violates the security of the examination materials, such as 
  5.8   removing examination materials from the examination room or 
  5.9   having unauthorized possession of any portion of a future, 
  5.10  current, or previously administered licensing examination; (2) 
  5.11  conduct which violates the standard of test administration, such 
  5.12  as communicating with another examinee during administration of 
  5.13  the examination, copying another examinee's answers, permitting 
  5.14  another examinee to copy one's answers, or possessing 
  5.15  unauthorized materials; or (3) impersonating an examinee or 
  5.16  permitting an impersonator to take the examination on one's own 
  5.17  behalf. 
  5.18     (c) Conviction, during the previous five years, of a felony 
  5.19  reasonably related to the practice of medicine or osteopathy.  
  5.20  Conviction as used in this subdivision shall include a 
  5.21  conviction of an offense which if committed in this state would 
  5.22  be deemed a felony without regard to its designation elsewhere, 
  5.23  or a criminal proceeding where a finding or verdict of guilt is 
  5.24  made or returned but the adjudication of guilt is either 
  5.25  withheld or not entered thereon.  
  5.26     (d) Revocation, suspension, restriction, limitation, or 
  5.27  other disciplinary action against the person's medical license 
  5.28  in another state or jurisdiction, failure to report to the board 
  5.29  that charges regarding the person's license have been brought in 
  5.30  another state or jurisdiction, or having been refused a license 
  5.31  by any other state or jurisdiction.  
  5.32     (e) Advertising which is false or misleading, which 
  5.33  violates any rule of the board, or which claims without 
  5.34  substantiation the positive cure of any disease, or professional 
  5.35  superiority to or greater skill than that possessed by another 
  5.36  physician. 
  6.1      (f) Violating a rule promulgated by the board or an order 
  6.2   of the board, a state, or federal law which relates to the 
  6.3   practice of medicine, or in part regulates the practice of 
  6.4   medicine including without limitation sections 148A.02, 609.344, 
  6.5   and 609.345, or a state or federal narcotics or controlled 
  6.6   substance law. 
  6.7      (g) Engaging in any unethical conduct; conduct likely to 
  6.8   deceive, defraud, or harm the public, or demonstrating a willful 
  6.9   or careless disregard for the health, welfare or safety of a 
  6.10  patient; or medical practice which is professionally 
  6.11  incompetent, in that it may create unnecessary danger to any 
  6.12  patient's life, health, or safety, in any of which cases, proof 
  6.13  of actual injury need not be established. 
  6.14     (h) Failure to supervise a physician's assistant or failure 
  6.15  to supervise a physician under any agreement with the board. 
  6.16     (i) Aiding or abetting an unlicensed person in the practice 
  6.17  of medicine, except that it is not a violation of this paragraph 
  6.18  for a physician to employ, supervise, or delegate functions to a 
  6.19  qualified person who may or may not be required to obtain a 
  6.20  license or registration to provide health services if that 
  6.21  person is practicing within the scope of that person's license 
  6.22  or registration or delegated authority. 
  6.23     (j) Adjudication as mentally incompetent, mentally ill or 
  6.24  mentally retarded, or as a chemically dependent person, a person 
  6.25  dangerous to the public, a sexually dangerous person, or a 
  6.26  person who has a sexual psychopathic personality by a court of 
  6.27  competent jurisdiction, within or without this state.  Such 
  6.28  adjudication shall automatically suspend a license for the 
  6.29  duration thereof unless the board orders otherwise. 
  6.30     (k) Engaging in unprofessional conduct.  Unprofessional 
  6.31  conduct shall include any departure from or the failure to 
  6.32  conform to the minimal standards of acceptable and prevailing 
  6.33  medical practice in which proceeding actual injury to a patient 
  6.34  need not be established. 
  6.35     (l) Inability to practice medicine with reasonable skill 
  6.36  and safety to patients by reason of illness, drunkenness, use of 
  7.1   drugs, narcotics, chemicals or any other type of material or as 
  7.2   a result of any mental or physical condition, including 
  7.3   deterioration through the aging process or loss of motor skills. 
  7.4      (m) Revealing a privileged communication from or relating 
  7.5   to a patient except when otherwise required or permitted by law. 
  7.6      (n) Failure by a doctor of osteopathy to identify the 
  7.7   school of healing in the professional use of the doctor's name 
  7.8   by one of the following terms:  osteopathic physician and 
  7.9   surgeon, doctor of osteopathy, or D.O. 
  7.10     (o) Improper management of medical records, including 
  7.11  failure to maintain adequate medical records, to comply with a 
  7.12  patient's request made pursuant to section 144.335 or to furnish 
  7.13  a medical record or report required by law.  
  7.14     (p) Fee splitting, including without limitation: 
  7.15     (1) paying, offering to pay, receiving, or agreeing to 
  7.16  receive, a commission, rebate, or remuneration, directly or 
  7.17  indirectly, primarily for the referral of patients or the 
  7.18  prescription of drugs or devices; 
  7.19     (2) dividing fees with another physician or a professional 
  7.20  corporation, unless the division is in proportion to the 
  7.21  services provided and the responsibility assumed by each 
  7.22  professional and the physician has disclosed the terms of the 
  7.23  division; 
  7.24     (3) referring a patient to any health care provider as 
  7.25  defined in section 144.335 in which the referring physician has 
  7.26  a significant financial interest unless the physician has 
  7.27  disclosed the physician's own financial interest; and 
  7.28     (4) dispensing for profit any drug or device, unless the 
  7.29  physician has disclosed the physician's own profit interest. 
  7.30  The physician must make the disclosures required in this clause 
  7.31  in advance and in writing to the patient and must include in the 
  7.32  disclosure a statement that the patient is free to choose a 
  7.33  different health care provider.  This clause does not apply to 
  7.34  the distribution of revenues from a partnership, group practice, 
  7.35  nonprofit corporation, or professional corporation to its 
  7.36  partners, shareholders, members, or employees if the revenues 
  8.1   consist only of fees for services performed by the physician or 
  8.2   under a physician's direct supervision, or to the division or 
  8.3   distribution of prepaid or capitated health care premiums, or 
  8.4   fee-for-service withhold amounts paid under contracts 
  8.5   established under other state law.  
  8.6      (q) Engaging in abusive or fraudulent billing practices, 
  8.7   including violations of the federal Medicare and Medicaid laws 
  8.8   or state medical assistance laws.  
  8.9      (r) Becoming addicted or habituated to a drug or intoxicant.
  8.10     (s) Prescribing a drug or device for other than medically 
  8.11  accepted therapeutic or experimental or investigative purposes 
  8.12  authorized by a state or federal agency or referring a patient 
  8.13  to any health care provider as defined in section 144.335 for 
  8.14  services or tests not medically indicated at the time of 
  8.15  referral.  
  8.16     (t) Engaging in conduct with a patient which is sexual or 
  8.17  may reasonably be interpreted by the patient as sexual, or in 
  8.18  any verbal behavior which is seductive or sexually demeaning to 
  8.19  a patient.  
  8.20     (u) Failure to make reports as required by section 147.111 
  8.21  or to cooperate with an investigation of the board as required 
  8.22  by section 147.131. 
  8.23     (v) Knowingly providing false or misleading information 
  8.24  that is directly related to the care of that patient unless done 
  8.25  for an accepted therapeutic purpose such as the administration 
  8.26  of a placebo. 
  8.27     (w) Aiding suicide or aiding attempted suicide in violation 
  8.28  of section 609.215 as established by any of the following: 
  8.29     (1) a copy of the record of criminal conviction or plea of 
  8.30  guilty for a felony in violation of section 609.215, subdivision 
  8.31  1 or 2; 
  8.32     (2) a copy of the record of a judgment of contempt of court 
  8.33  for violating an injunction issued under section 609.215, 
  8.34  subdivision 4; 
  8.35     (3) a copy of the record of a judgment assessing damages 
  8.36  under section 609.215, subdivision 5; or 
  9.1      (4) a finding by the board that the person violated section 
  9.2   609.215, subdivision 1 or 2.  The board shall investigate any 
  9.3   complaint of a violation of section 609.215, subdivision 1 or 2. 
  9.4      (x) Practice of a board-regulated profession under lapsed 
  9.5   or nonrenewed credentials. 
  9.6      (y) Failure to repay a state or federally secured student 
  9.7   loan in accordance with the provisions of the loan. 
  9.8      (z) Failure to use the appropriate standard of care 
  9.9   recognized by the departments of health and commerce when making 
  9.10  a utilization review determination as defined in section 
  9.11  62M.02.  Nothing in this paragraph creates, modifies, or changes 
  9.12  existing law related to tort liability for medical negligence.