HF 1209

as introduced - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to health; establishing certain patient 
  1.3             rights and protections; regulating coverages; 
  1.4             specifying the duties of certain carriers and 
  1.5             providers; establishing remedies; amending Minnesota 
  1.6             Statutes 2000, sections 62A.60; 62J.71, subdivision 3; 
  1.7             62J.80; 62M.05, subdivisions 3a and 3b; 62M.07; 
  1.8             62M.09, subdivisions 2, 3, and 6; 62Q.53, subdivision 
  1.9             2; 62Q.56; 62Q.58, subdivision 3, and by adding 
  1.10            subdivisions; and 62Q.73, subdivision 7; proposing 
  1.11            coding for new law in Minnesota Statutes, chapter 62Q; 
  1.12            proposing coding for new law as Minnesota Statutes, 
  1.13            chapter 62U. 
  1.14  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.15     Section 1.  Minnesota Statutes 2000, section 62A.60, is 
  1.16  amended to read: 
  1.17     62A.60 [RETROACTIVE DENIAL OF EXPENSES.] 
  1.18     In cases where the subscriber or insured is liable for 
  1.19  costs beyond applicable copayments or deductibles, no insurer 
  1.20  may retroactively deny payment to a person who is covered when 
  1.21  the services are provided for health care services that are 
  1.22  otherwise covered, if the insurer or its representative failed 
  1.23  to provide prior or concurrent review or authorization for the 
  1.24  expenses when required to do so under the policy, plan, or 
  1.25  certificate.  If prior or concurrent review or authorization was 
  1.26  provided by the insurer or its representative, and the 
  1.27  preexisting condition limitation provision, the general 
  1.28  exclusion provision and any other coinsurance, or other policy 
  1.29  requirements have been met, the insurer may not deny payment for 
  2.1   the authorized service or time period except in cases where 
  2.2   fraud or substantive misrepresentation occurred.  A health 
  2.3   carrier that has given preauthorization approval for a service 
  2.4   or treatment may not subsequently deny payment for that service 
  2.5   or treatment except in cases of fraud.  At the time a decision 
  2.6   regarding the medical necessity of a service or treatment is 
  2.7   communicated to an enrollee in accordance with section 62M.05, a 
  2.8   health carrier shall also communicate whether the requested 
  2.9   service or treatment is a covered benefit. 
  2.10     Sec. 2.  Minnesota Statutes 2000, section 62J.71, 
  2.11  subdivision 3, is amended to read: 
  2.12     Subd. 3.  [RETALIATION PROHIBITED.] No person, health plan 
  2.13  company, or other organization may take retaliatory action 
  2.14  against a health care provider solely on the grounds that the 
  2.15  provider: 
  2.16     (1) refused to enter into an agreement or provide services 
  2.17  or information in a manner that is prohibited under this section 
  2.18  or took any of the actions listed in subdivision 1; 
  2.19     (2) disclosed accurate information about whether a health 
  2.20  care service or treatment is covered by an enrollee's health 
  2.21  plan company, health insurer, or health coverage plan; 
  2.22     (3) discussed diagnostic, treatment, or referral options 
  2.23  that are not covered or are limited by the enrollee's health 
  2.24  plan company, health insurer, or health coverage plan; 
  2.25     (4) criticized coverage of the enrollee's health plan 
  2.26  company, health insurer, or health coverage plan; or 
  2.27     (5) expressed personal disagreement with a decision made by 
  2.28  a person, organization, or health care provider regarding 
  2.29  treatment or coverage provided to a patient of the provider, or 
  2.30  assisted or advocated for the patient in seeking reconsideration 
  2.31  of such a decision, provided the health care provider makes it 
  2.32  clear that the provider is acting in a personal capacity and not 
  2.33  as a representative of or on behalf of the entity that made the 
  2.34  decision.; 
  2.35     (6) disclosed, in good faith, information relating to the 
  2.36  care, services, or conditions affecting an enrollee to an 
  3.1   appropriate public agency, private accreditation body, or 
  3.2   management personnel of the health plan company as otherwise 
  3.3   allowed by law; 
  3.4      (7) initiated, cooperated with, or otherwise participated 
  3.5   in a utilization review under chapter 62M or in an investigation 
  3.6   or proceeding by a public agency; 
  3.7      (8) provided, as otherwise allowed by law, testimony, 
  3.8   evidence, records, or other assistance to an enrollee or public 
  3.9   agency; 
  3.10     (9) advocated on behalf of an enrollee who brings a claim 
  3.11  against a health carrier or otherwise participated in a claim 
  3.12  brought against a health carrier; or 
  3.13     (10) referred a patient for a second opinion under section 
  3.14  62Q.59. 
  3.15     Sec. 3.  Minnesota Statutes 2000, section 62J.80, is 
  3.16  amended to read: 
  3.17     62J.80 [RETALIATION AGAINST ENROLLEE OR PATIENT.] 
  3.18     A health plan company or health care provider shall not 
  3.19  retaliate or take adverse action against an enrollee or patient 
  3.20  who, in good faith, makes a complaint against a health plan 
  3.21  company or health care provider, participates in a utilization 
  3.22  review under chapter 62M, obtains a second opinion under section 
  3.23  62Q.59, or brings a claim under chapter 62U.  If retaliation is 
  3.24  suspected, the executive director of a health-related licensing 
  3.25  board as defined in section 214.01, subdivision 2, may report it 
  3.26  to the appropriate regulatory authority.  
  3.27     Sec. 4.  Minnesota Statutes 2000, section 62M.05, 
  3.28  subdivision 3a, is amended to read: 
  3.29     Subd. 3a.  [STANDARD REVIEW DETERMINATION.] (a) 
  3.30  Notwithstanding subdivision 3b, an initial determination on all 
  3.31  requests for utilization review must be communicated to the 
  3.32  provider and enrollee in accordance with this subdivision within 
  3.33  ten business days of the request, provided that all information 
  3.34  reasonably necessary to make a determination on the request has 
  3.35  been made available to the utilization review organization.  
  3.36     (b) When an initial determination is made to certify, 
  4.1   notification must be provided promptly by telephone to the 
  4.2   provider.  The utilization review organization shall send 
  4.3   written notification to the provider or shall maintain an audit 
  4.4   trail of the determination and telephone notification.  For 
  4.5   purposes of this subdivision, "audit trail" includes 
  4.6   documentation of the telephone notification, including the date; 
  4.7   the name of the person spoken to; the enrollee; the service, 
  4.8   procedure, or admission certified; and the date of the service, 
  4.9   procedure, or admission.  If the utilization review organization 
  4.10  indicates certification by use of a number, the number must be 
  4.11  called the "certification number." 
  4.12     (c) When an initial determination is made not to certify, 
  4.13  notification must be provided by telephone within one working 
  4.14  day after making the determination to the attending health care 
  4.15  professional and hospital and a written notification must be 
  4.16  sent to the hospital, attending health care professional, and 
  4.17  enrollee.  The written notification must include the principal 
  4.18  reason or reasons for the determination and the process for 
  4.19  initiating an appeal of the determination.  Upon request, the 
  4.20  utilization review organization shall provide the provider or 
  4.21  enrollee with the criteria used to determine the necessity, 
  4.22  appropriateness, and efficacy of the health care service and 
  4.23  identify the database, professional treatment parameter, or 
  4.24  other basis for the criteria.  Reasons for a determination not 
  4.25  to certify may include, among other things, the lack of adequate 
  4.26  information to certify after a reasonable attempt has been made 
  4.27  to contact the provider or enrollee. 
  4.28     (d) When an initial determination is made not to certify, 
  4.29  the written notification must inform the enrollee and the 
  4.30  attending health care professional of the right to submit an 
  4.31  appeal to the internal appeal process described in section 
  4.32  62M.06 and the procedure for initiating the internal appeal and 
  4.33  of the right to obtain a second opinion under section 62Q.59. 
  4.34     Sec. 5.  Minnesota Statutes 2000, section 62M.05, 
  4.35  subdivision 3b, is amended to read: 
  4.36     Subd. 3b.  [EXPEDITED REVIEW DETERMINATION.] (a) An 
  5.1   expedited initial determination must be utilized if the 
  5.2   attending health care professional believes that an expedited 
  5.3   determination is warranted. 
  5.4      (b) Notification of an expedited initial determination to 
  5.5   either certify or not to certify must be provided to the 
  5.6   hospital, the attending health care professional, and the 
  5.7   enrollee as expeditiously as the enrollee's medical condition 
  5.8   requires, but no later than 72 hours from the initial request.  
  5.9   When an expedited initial determination is made not to certify, 
  5.10  the utilization review organization must also notify the 
  5.11  enrollee and the attending health care professional of the right 
  5.12  to submit an appeal to the expedited internal appeal as 
  5.13  described in section 62M.06 and the procedure for initiating an 
  5.14  internal expedited appeal and of the right to obtain a second 
  5.15  opinion under section 62Q.59. 
  5.16     Sec. 6.  Minnesota Statutes 2000, section 62M.07, is 
  5.17  amended to read: 
  5.18     62M.07 [PRIOR AUTHORIZATION OF SERVICES.] 
  5.19     (a) Utilization review organizations conducting prior 
  5.20  authorization of services must have and follow written standards 
  5.21  that meet at a minimum the following requirements: 
  5.22     (1) written procedures and criteria used to determine 
  5.23  whether care is appropriate, reasonable, or medically necessary; 
  5.24     (2) a system for providing prompt notification of its 
  5.25  determinations to enrollees and providers and for notifying the 
  5.26  provider, enrollee, or enrollee's designee of appeal procedures 
  5.27  under clause (4); 
  5.28     (3) compliance with section 62M.05, subdivisions 3a and 3b, 
  5.29  regarding time frames for approving and disapproving prior 
  5.30  authorization requests; 
  5.31     (4) written procedures for appeals of denials of prior 
  5.32  authorization which specify the responsibilities of the enrollee 
  5.33  and provider, and which meet the requirements of sections 62M.06 
  5.34  and 72A.285, regarding release of summary review findings; and 
  5.35     (5) procedures to ensure confidentiality of 
  5.36  patient-specific information, consistent with applicable law. 
  6.1      (b) No utilization review organization, health plan 
  6.2   company, or claims administrator may conduct or require prior 
  6.3   authorization of emergency confinement or emergency treatment.  
  6.4   The enrollee or the enrollee's authorized representative may be 
  6.5   required to notify the health plan company, claims 
  6.6   administrator, or utilization review organization as soon after 
  6.7   the beginning of the emergency confinement or emergency 
  6.8   treatment as reasonably possible. 
  6.9      (c) Each time a utilization review organization, health 
  6.10  plan company, or claims administrator determines that care is 
  6.11  not appropriate, reasonable, or medically necessary, using the 
  6.12  written procedures required under paragraph (a), clause (1), the 
  6.13  utilization review organization, health plan company, or claims 
  6.14  administrator must provide a copy of the written procedures to 
  6.15  the enrollee seeking the care. 
  6.16     Sec. 7.  Minnesota Statutes 2000, section 62M.09, 
  6.17  subdivision 2, is amended to read: 
  6.18     Subd. 2.  [LICENSURE REQUIREMENT.] Nurses, physicians, and 
  6.19  other Except as provided in subdivision 3, licensed health 
  6.20  professionals conducting reviews of medical services, and other 
  6.21  clinical reviewers conducting specialized reviews in their area 
  6.22  of specialty must be currently licensed or certified by an 
  6.23  approved state licensing agency in the United States. 
  6.24     Sec. 8.  Minnesota Statutes 2000, section 62M.09, 
  6.25  subdivision 3, is amended to read: 
  6.26     Subd. 3.  [PHYSICIAN REVIEWER INVOLVEMENT.] A physician 
  6.27  must review all cases in which the utilization review 
  6.28  organization has concluded that a determination not to certify 
  6.29  for clinical reasons is appropriate.  The physician should 
  6.30  conducting the review must be licensed in Minnesota and must be 
  6.31  reasonably available by telephone to discuss the determination 
  6.32  with the attending health care professional physician and the 
  6.33  enrollee or the enrollee's designee.  This subdivision does not 
  6.34  apply to outpatient mental health or substance abuse services 
  6.35  governed by subdivision 3a.  
  6.36     Sec. 9.  Minnesota Statutes 2000, section 62M.09, 
  7.1   subdivision 6, is amended to read: 
  7.2      Subd. 6.  [PHYSICIAN CONSULTANTS.] A utilization review 
  7.3   organization must use physician consultants in the appeal 
  7.4   process described in section 62M.06, subdivision 3.  The 
  7.5   physician consultants should include, as needed and available, 
  7.6   specialists who are must be board-certified, or board-eligible 
  7.7   and working towards certification, in a specialty board approved 
  7.8   by the American Board of Medical Specialists or the American 
  7.9   Board of Osteopathy, must be licensed in Minnesota, and must 
  7.10  practice in the same or similar specialty or area of practice 
  7.11  involved in the request for treatment. 
  7.12     Sec. 10.  Minnesota Statutes 2000, section 62Q.53, 
  7.13  subdivision 2, is amended to read: 
  7.14     Subd. 2.  [MINIMUM DEFINITION.] "Medically necessary care" 
  7.15  means health care services appropriate, in terms of type, 
  7.16  frequency, level, setting, and duration, to the enrollee's 
  7.17  diagnosis or condition, and diagnostic testing and preventive 
  7.18  services.  Any mental health services ordered by a court of 
  7.19  competent jurisdiction are medically necessary care.  Medically 
  7.20  necessary care must be consistent with generally accepted 
  7.21  practice parameters as determined by health care providers in 
  7.22  the same or similar general specialty as typically manages the 
  7.23  condition, procedure, or treatment at issue and must: 
  7.24     (1) help restore or maintain the enrollee's health; or 
  7.25     (2) prevent deterioration of the enrollee's condition.  
  7.26     Sec. 11.  [62Q.535] [MEDICALLY NECESSARY CARE.] 
  7.27     For purposes of coverage under a health plan, "medically 
  7.28  necessary care" means diagnostic testing, preventive services, 
  7.29  and health care services that are appropriate, in terms of 
  7.30  types, frequency, level, setting, and duration, to the 
  7.31  enrollee's diagnosis or condition.  Medically necessary care 
  7.32  must be consistent with generally accepted practice parameters, 
  7.33  as determined by licensed health care providers in the same or 
  7.34  similar general specialty as typically manages the condition, 
  7.35  procedure, or treatment at issue and must: 
  7.36     (1) help restore, establish, maintain, or improve the 
  8.1   enrollee's health condition or function; 
  8.2      (2) prevent deterioration of the enrollee's health 
  8.3   condition or function; or 
  8.4      (3) prevent the reasonably likely onset of a health problem 
  8.5   or detect an incipient problem. 
  8.6      Sec. 12.  Minnesota Statutes 2000, section 62Q.56, is 
  8.7   amended to read: 
  8.8      62Q.56 [CONTINUITY OF CARE.] 
  8.9      Subdivision 1.  [CHANGE IN HEALTH CARE PROVIDER.] (a) If 
  8.10  enrollees are required to access services through selected 
  8.11  primary care providers for coverage, the health plan company 
  8.12  shall prepare a written plan that provides for continuity of 
  8.13  care in the event of contract termination between the health 
  8.14  plan company and any of the contracted primary care providers or 
  8.15  general hospital providers.  The written plan must explain: 
  8.16     (1) how the health plan company will inform affected 
  8.17  enrollees, insureds, or beneficiaries about termination at least 
  8.18  30 days before the termination is effective, if the health plan 
  8.19  company or health care network cooperative has received at least 
  8.20  120 days' prior notice; 
  8.21     (2) how the health plan company will inform the affected 
  8.22  enrollees about what other participating providers are available 
  8.23  to assume care and how it will facilitate an orderly transfer of 
  8.24  its enrollees from the terminating provider to the new provider 
  8.25  to maintain continuity of care; 
  8.26     (3) the procedures by which enrollees will be transferred 
  8.27  to other participating providers, when special medical needs, 
  8.28  special risks, or other special circumstances, such as cultural 
  8.29  or language barriers, require them to have a longer transition 
  8.30  period or be transferred to nonparticipating providers; 
  8.31     (4) who will identify enrollees with special medical needs 
  8.32  or at special risk and what criteria will be used for this 
  8.33  determination; and 
  8.34     (5) how continuity of care will be provided for enrollees 
  8.35  identified as having special needs or at special risk, and 
  8.36  whether the health plan company has assigned this responsibility 
  9.1   to its contracted primary care providers. 
  9.2      (b) If the contract termination was not for cause, 
  9.3   enrollees can request a referral to the terminating provider for 
  9.4   up to 120 days if they have special medical needs or have other 
  9.5   special circumstances, such as cultural or language barriers.  
  9.6   The health plan company can require medical records and other 
  9.7   supporting documentation in support of the requested referral.  
  9.8   Each request for referral to a terminating provider shall be 
  9.9   considered by the health plan company on a case-by-case 
  9.10  basis. must be notified of the change and informed of their 
  9.11  right to continue care with the terminating provider.  A health 
  9.12  plan company must continue to provide coverage for all covered 
  9.13  services provided by the terminating provider to an enrollee if, 
  9.14  at the time of termination, the provider is providing a covered 
  9.15  service to the enrollee for a current course of treatment and 
  9.16  the enrollee meets one of the following conditions: 
  9.17     (1) has a life-threatening physical or mental condition; 
  9.18     (2) has a physical or mental disability, a chronic health 
  9.19  care condition in an acute phase of the condition, or mental 
  9.20  retardation; or 
  9.21     (3) has entered the second trimester of pregnancy prior to 
  9.22  the time of enrollment. 
  9.23  At the request of the enrollee, coverage for the services 
  9.24  provided by the terminating provider shall continue until the 
  9.25  end of the treatment or for 180 days, whichever is shorter, 
  9.26  except in the case of a terminally ill hospice-eligible enrollee.
  9.27     (c) If the contract termination was for cause, enrollees 
  9.28  must be notified of the change and transferred to participating 
  9.29  providers in a timely manner so that health care services remain 
  9.30  available and accessible to the affected enrollees.  The health 
  9.31  plan company is not required to refer an enrollee back to the 
  9.32  terminating provider if the termination was for cause. 
  9.33     Subd. 2.  [CHANGE IN HEALTH PLANS.] (a) The A health plan 
  9.34  company shall prepare a written plan that provides a process for 
  9.35  provide coverage determinations for continuity of care for a new 
  9.36  enrollees with special needs, special risks, or other special 
 10.1   circumstances, such as cultural or language barriers, enrollee 
 10.2   who request requests continuity of care with their the 
 10.3   enrollee's former provider for up to 120 days.  The written plan 
 10.4   must explain the criteria that will be used for determining 
 10.5   special needs cases, and how continuity of care will be provided 
 10.6   180 days if at the time of enrollment the enrollee is receiving 
 10.7   a current course of treatment from the former provider and meets 
 10.8   one of the conditions described in subdivision 1, paragraph (b). 
 10.9      (b) This subdivision applies only to group coverage and 
 10.10  continuation and conversion coverage, and applies only to 
 10.11  changes in health plans made by the employer. 
 10.12     Subd. 2a.  [LIMITATIONS.] (a) Subdivisions 1 and 2 apply 
 10.13  only if the enrollee's health care provider agrees to: 
 10.14     (1) accept as payment in full the health plan company's 
 10.15  reimbursement rate for in-network providers for the same or a 
 10.16  similar service; 
 10.17     (2) adhere to the health plan company's preauthorization 
 10.18  requirements; and 
 10.19     (3) provide the health plan company with all necessary 
 10.20  medical information related to the care provided to the enrollee.
 10.21     (b) Nothing in this section requires a health plan company 
 10.22  to provide coverage for a health care service or treatment that 
 10.23  is not covered under the enrollee's health plan. 
 10.24     Subd. 3.  [DISCLOSURES DISCLOSURE.] The written plans 
 10.25  required under this section must be made available upon request 
 10.26  to enrollees or prospective enrollees.  Information regarding an 
 10.27  enrollee's rights under this section must be included in member 
 10.28  contracts or certificates of coverage and must be provided by a 
 10.29  health plan company upon request to an enrollee or prospective 
 10.30  enrollee. 
 10.31     Sec. 13.  Minnesota Statutes 2000, section 62Q.58, is 
 10.32  amended by adding a subdivision to read: 
 10.33     Subd. 1a.  [DEFINITION; SPECIALIST.] For purposes of this 
 10.34  section, "specialist" means, with respect to a condition or 
 10.35  disease, a health care provider or health care facility that has 
 10.36  adequate expertise through appropriate training and practical 
 11.1   clinical experience, including appropriate pediatric expertise 
 11.2   in the case of a child, to provide high-quality care in treating 
 11.3   the unique condition or disease of the particular patient. 
 11.4      Sec. 14.  Minnesota Statutes 2000, section 62Q.58, is 
 11.5   amended by adding a subdivision to read: 
 11.6      Subd. 1b.  [MANDATORY REFERRAL.] (a) A health plan company 
 11.7   must make or provide for a referral to an appropriate 
 11.8   participating specialist who is available and accessible to 
 11.9   treat the enrollee's condition or disease or to a 
 11.10  nonparticipating specialist if the health plan company does not 
 11.11  have an appropriate participating specialist that is available 
 11.12  and accessible to treat the enrollee's condition or disease if 
 11.13  the enrollee has a condition or disease of sufficient 
 11.14  seriousness in complexity to require treatment by a specialist. 
 11.15     (b) If an enrollee receives services from a 
 11.16  nonparticipating specialist under paragraph (a) because a 
 11.17  participating specialist is not available, services shall be 
 11.18  provided at no additional cost to the enrollee beyond what the 
 11.19  enrollee would otherwise pay for services from a participating 
 11.20  specialist. 
 11.21     Sec. 15.  Minnesota Statutes 2000, section 62Q.58, 
 11.22  subdivision 3, is amended to read: 
 11.23     Subd. 3.  [DISCLOSURE.] Information regarding referral 
 11.24  procedures under this section, including the application process 
 11.25  and criteria and conditions for a standing referral, must be 
 11.26  included in member contracts or certificates of coverage and 
 11.27  must be provided to an enrollee or prospective enrollee by a 
 11.28  health plan company upon request. 
 11.29     Sec. 16.  [62Q.59] [PROMPT EVALUATION; COVERAGE OF SECOND 
 11.30  OPINION.] 
 11.31     A health plan company shall promptly evaluate the treatment 
 11.32  needs of any enrollee who is seeking treatment for a problem 
 11.33  related to a medical condition, including mental health and 
 11.34  chemical dependency conditions.  If the health plan company, or 
 11.35  a health care provider acting on its behalf, determines that a 
 11.36  particular type of treatment is unnecessary, the enrollee is 
 12.1   immediately entitled to a second opinion paid for by the health 
 12.2   plan company from a health care provider who is qualified in the 
 12.3   diagnosis and treatment of the condition and who is chosen by 
 12.4   the enrollee, regardless of whether the provider has a contract 
 12.5   with the enrollee's health plan company.  The health plan 
 12.6   company shall promptly notify the enrollee of whether any 
 12.7   treatment recommended by the health care provider performing a 
 12.8   second opinion shall be covered.  For purposes of this section, 
 12.9   "second opinion" means an opinion rendered by a health care 
 12.10  provider qualified in the diagnosis and treatment of the problem 
 12.11  who is physically available to examine the enrollee. 
 12.12     Sec. 17.  [62Q.675] [ACCESS TO EVIDENCE OF COVERAGE AND 
 12.13  DRUG FORMULARY.] 
 12.14     Subdivision 1.  [EVIDENCE OF COVERAGE.] A health plan 
 12.15  company shall provide to a prospective enrollee, upon request, a 
 12.16  specimen copy of the certificate of coverage, subscriber 
 12.17  contract, or other evidence of coverage required to be filed 
 12.18  with the commissioner of commerce or health under chapter 62A, 
 12.19  62C, 62D, or 62N. 
 12.20     Subd. 2.  [DRUG FORMULARY.] (a) A health plan company that 
 12.21  provides a prescription drug benefit and maintains one or more 
 12.22  drug formularies shall provide an enrollee or prospective 
 12.23  enrollee, upon request: 
 12.24     (1) a copy of the most current list of prescription drugs, 
 12.25  organized by major therapeutic category, on the health plan 
 12.26  company's formulary; and 
 12.27     (2) an indication of whether any drugs on the list are 
 12.28  preferred over other listed drugs. 
 12.29     (b) If a health plan company maintains more than one drug 
 12.30  formulary for a particular health plan, the health plan company 
 12.31  shall notify the requesting enrollee or prospective enrollee 
 12.32  that a choice of formulary lists is available. 
 12.33     Sec. 18.  [62Q.676] [CHANGE IN CONTENT OF DRUG FORMULARY.] 
 12.34     A health plan that provides coverage for prescription drugs 
 12.35  may not limit or exclude coverage of a prescription drug for an 
 12.36  enrollee during the term of the contract based on the removal of 
 13.1   the drug, during the term of the contract, from a prescription 
 13.2   drug formulary used under the health plan, if the following 
 13.3   conditions are met: 
 13.4      (1) the health plan had, during the contract period, 
 13.5   covered the drug for that enrollee to treat that enrollee's 
 13.6   medical condition; 
 13.7      (2) the health care provider prescribing the drug for that 
 13.8   enrollee continues to prescribe the drug for the enrollee; and 
 13.9      (3) the drug is considered safe and effective for treating 
 13.10  the enrollee's medical condition. 
 13.11     Sec. 19.  Minnesota Statutes 2000, section 62Q.73, 
 13.12  subdivision 7, is amended to read: 
 13.13     Subd. 7.  [STANDARDS OF REVIEW.] (a) For an external review 
 13.14  of any issue in an adverse determination that does not require a 
 13.15  medical necessity determination, the external review must be 
 13.16  based on whether the adverse determination was in compliance 
 13.17  with the enrollee's health benefit plan. 
 13.18     (b) For an external review of any issue in an adverse 
 13.19  determination by a health plan company licensed under chapter 
 13.20  62D that requires a medical necessity determination, the 
 13.21  external review must determine whether the adverse determination 
 13.22  was consistent with the definition of medically necessary 
 13.23  care in Minnesota Rules, part 4685.0100, subpart 9b under 
 13.24  section 62Q.535. 
 13.25     (c) For an external review of any issue in an adverse 
 13.26  determination by a health plan company, other than a health plan 
 13.27  company licensed under chapter 62D, that requires a medical 
 13.28  necessity determination, the external review must determine 
 13.29  whether the adverse determination was consistent with the 
 13.30  definition of medically necessary care in section 62Q.53, 
 13.31  subdivision 2.  
 13.32     Sec. 20.  [62Q.80] [MEDICAL CLINICAL TRIALS.] 
 13.33     An enrollee's participation in a medical clinical trial 
 13.34  does not negate a health plan company's obligation to provide 
 13.35  medically necessary care that would normally be provided to an 
 13.36  enrollee under the enrollee's health plan. 
 14.1      Sec. 21.  [62U.01] [SHORT TITLE.] 
 14.2      This chapter may be cited as the "Health Care 
 14.3   Accountability Act." 
 14.4      Sec. 22.  [62U.02] [DEFINITIONS.] 
 14.5      Subdivision 1.  [APPLICABILITY.] For purposes of this 
 14.6   chapter, the terms defined in this section have the meanings 
 14.7   given.  
 14.8      Subd. 2.  [ENROLLEE.] "Enrollee" means an individual who is 
 14.9   covered by a health carrier, health insurance, or health 
 14.10  coverage plan, including an insured, policyholder, subscriber, 
 14.11  contract holder, member-covered person, or certificate holder. 
 14.12     Subd. 3.  [HEALTH CARE PROVIDER OR PROVIDER.] "Health care 
 14.13  provider" or "provider" has the meaning given under section 
 14.14  144.335, subdivision 1, paragraph (b). 
 14.15     Subd. 4.  [HEALTH CARE TREATMENT DECISION.] "Health care 
 14.16  treatment decision" means a determination or decision made that 
 14.17  affects the quality of the diagnosis, care, or treatment 
 14.18  provided to an enrollee.  A health care treatment decision 
 14.19  includes, but is not limited to, a determination that a service, 
 14.20  treatment, or procedure is not medically necessary. 
 14.21     Subd. 5.  [HEALTH CARRIER.] "Health carrier" means an 
 14.22  insurance company licensed under chapter 60A to offer, sell, or 
 14.23  issue an individual or group policy of accident and sickness 
 14.24  insurance as defined in section 62A.01; a nonprofit health 
 14.25  service plan corporation operating under chapter 62C; a health 
 14.26  maintenance organization operating under chapter 62D; a joint 
 14.27  self-insurance employee health plan operating under chapter 62H; 
 14.28  a community integrated systems network licensed under chapter 
 14.29  62N; a fraternal benefit society operating under chapter 64B; or 
 14.30  an association, partnership, corporation, or limited liability 
 14.31  corporation organized for the purpose of providing, arranging, 
 14.32  or administering health care services or treatment. 
 14.33     Subd. 6.  [MEDICALLY NECESSARY CARE.] "Medically necessary 
 14.34  care" means diagnostic testing, preventative services, and 
 14.35  health care services that are appropriate, in terms of types, 
 14.36  frequency, level, setting, and duration, to the enrollee's 
 15.1   diagnosis or condition.  Medically necessary care must be 
 15.2   consistent with generally accepted practice parameters, as 
 15.3   determined by licensed health care providers in the same or 
 15.4   similar general specialty as typically manages the condition, 
 15.5   procedure, or treatment at issue and must: 
 15.6      (1) help restore, establish, maintain, or improve the 
 15.7   enrollee's health condition or function; 
 15.8      (2) prevent deterioration of the enrollee's health 
 15.9   condition or function; or 
 15.10     (3) prevent the reasonably likely onset of a health problem 
 15.11  or detect an incipient problem. 
 15.12     Subd. 7.  [ORDINARY CARE.] "Ordinary care" means, in the 
 15.13  case of a health carrier, that degree of care that a health 
 15.14  carrier of ordinary prudence would use under the same or similar 
 15.15  circumstances.  In the case of a person who is an employee, 
 15.16  agent, or representative of a health carrier, ordinary care 
 15.17  means that degree of care that a person of ordinary prudence in 
 15.18  the same profession, specialty, or area of practice would use in 
 15.19  the same or similar circumstances. 
 15.20     Sec. 23.  [62U.03] [APPLICATION.] 
 15.21     Subdivision 1.  [DUTY OF ORDINARY CARE.] A health carrier 
 15.22  has the duty to exercise ordinary care when making health care 
 15.23  treatment decisions and is liable for damages to an enrollee for 
 15.24  harm proximately caused by its failure to exercise ordinary care.
 15.25     Subd. 2.  [RESPONSIBILITY FOR ACTIONS OF OTHERS.] (a) A 
 15.26  health carrier is also liable for damages to an enrollee for 
 15.27  harm proximately caused by a health care treatment decision made 
 15.28  by its: 
 15.29     (1) employees; 
 15.30     (2) agents; or 
 15.31     (3) representatives who are acting on its behalf and over 
 15.32  whom it has the right to exercise influence or control or has 
 15.33  actually exercised influence or control that results in the 
 15.34  failure to exercise ordinary care. 
 15.35     (b) In an action against a health carrier, a finding that a 
 15.36  health care provider is an employee, agent, or representative of 
 16.1   the health carrier shall not be based solely on proof that the 
 16.2   person's name appears in a listing of approved health care 
 16.3   providers made available to enrollees under a health plan. 
 16.4      Subd. 3.  [DEFENSES.] It shall be a defense to an action 
 16.5   asserted against a health carrier that: 
 16.6      (1) neither the health carrier, nor any employee, agent, or 
 16.7   representative for whose conduct the health carrier is liable 
 16.8   under subdivision 2, controlled, influenced, or participated in 
 16.9   the health care treatment decision; and 
 16.10     (2) the health carrier did not deny or delay payment for 
 16.11  any service, treatment, or procedure prescribed or recommended 
 16.12  by a provider to the enrollee. 
 16.13     Subd. 4.  [LIMITATIONS.] (a) The standards in subdivisions 
 16.14  1 and 2 create no obligation on the part of the health carrier 
 16.15  to provide to an enrollee a service, treatment, or procedure 
 16.16  that is not covered by the health plan. 
 16.17     (b) This chapter does not create liability on the part of 
 16.18  an employer or an employer group purchasing organization that 
 16.19  purchases coverage or assumes risk on behalf of its employees. 
 16.20     Subd. 5.  [LIMITATION ON DEFENSES.] Nothing in any law of 
 16.21  this state prohibiting a health carrier from practicing medicine 
 16.22  or being licensed to practice medicine may be asserted as a 
 16.23  defense by the health carrier in an action brought against it 
 16.24  under this section or any other law. 
 16.25     Subd. 6.  [NONAPPLICATION.] This chapter does not apply to 
 16.26  workers' compensation insurance coverage under chapter 79 or 
 16.27  workers' compensation self-insurance under chapter 79A. 
 16.28     Subd. 7.  [RECOVERY OF ATTORNEY FEES AND OTHER 
 16.29  EXPENSES.] If an enrollee is the prevailing party in a 
 16.30  proceeding under this section, the court may award attorney fees 
 16.31  and other reasonable expenses to the enrollee.  This subdivision 
 16.32  does not preclude an enrollee from recovering costs, 
 16.33  disbursements, fees, and expenses under other applicable law. 
 16.34     Subd. 8.  [TRANSFER OF LIABILITY.] Any agreement or 
 16.35  directive that attempts to transfer to a health care provider, 
 16.36  by indemnification or otherwise, any tort liability relating to 
 17.1   the activities, actions, or omissions of a health carrier is 
 17.2   contrary to state public policy and is null and void. 
 17.3      Subd. 9.  [WAIVER OF LIABILITY.] Any waiver of or agreement 
 17.4   to waive the provisions of this section by an enrollee is 
 17.5   contrary to state public policy and is null and void. 
 17.6      Subd. 10.  [EXHAUSTION OF APPEALS.] (a) An enrollee must 
 17.7   exhaust the external review process to the extent authorized by 
 17.8   law before a claim can be brought against a health carrier under 
 17.9   this chapter.  
 17.10     (b) An enrollee of the Minnesota comprehensive health 
 17.11  association or a governmental program, including the prepaid 
 17.12  medical assistance program, the MinnesotaCare program, the 
 17.13  prepaid general assistance medical care program, and the federal 
 17.14  Medicare program must exhaust any complaint and appeal process 
 17.15  currently available under those programs before a claim can be 
 17.16  brought against the health carrier administering the program or 
 17.17  the government program under this chapter. 
 17.18     Sec. 24.  [EFFECT OF AMENDMENT.] 
 17.19     The amendment to Minnesota Statutes, section 62Q.53, 
 17.20  subdivision 2, is a restatement and clarification of the 
 17.21  original intent of the legislature in enacting Laws 1997, 
 17.22  chapter 49, section 1, and shall not be construed as a 
 17.23  modification of existing law. 
 17.24     Sec. 25.  [EFFECTIVE DATE.] 
 17.25     Sections 1 to 24 are effective January 1, 2002, and apply 
 17.26  to contracts issued or renewed on or after that date.  Section 
 17.27  23 applies to claims arising from events that occur on or after 
 17.28  January 1, 2002, for contracts issued or renewed on or after 
 17.29  that date.