House Bill No. 27
Introduced By simon
A Bill for an Act entitled: An Act prohibiting health carriers and managed care organizations from interfering with certain medical communications made by persons providing health care services in a managed care setting; providing definitions; providing a penalty; AMENDING SECTION 33-31-111, MCA; and providing an applicability date.
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 33-31-111, MCA, is amended to read:
"33-31-111. Statutory construction and relationship to other laws. (1) Except as otherwise provided in this chapter, the insurance or health service corporation laws do not apply to any health maintenance organization authorized to transact business under this chapter. This provision does not apply to an insurer or health service corporation licensed and regulated pursuant to the insurance or health service corporation laws of this state except with respect to its health maintenance organization activities authorized and regulated pursuant to this chapter.
(2) Solicitation of enrollees by a health maintenance organization granted a certificate of authority or its representatives may not be construed as a violation of any law relating to solicitation or advertising by health professionals.
(3) A health maintenance organization authorized under this chapter may not be considered to be practicing medicine and is exempt from Title 37, chapter 3, relating to the practice of medicine.
(4) The provisions of this chapter do not exempt a health maintenance organization from the applicable certificate of need requirements under Title 50, chapter 5, parts 1 and 3.
(5) The provisions of this section do not exempt a health maintenance organization from material transaction disclosure requirements under 33-3-701 through 33-3-704. A health maintenance organization must be considered an insurer for the purposes of 33-3-701 through 33-3-704.
(6) This section does not exempt a health maintenance organization from prohibitions against interference with certain communications as provided under [sections 2 through 5]."
Section 2. Definitions. As used in [sections 2 through 5], unless the context requires otherwise, the following definitions apply:
(1) "Enrollee" means the individual to whom a health care service is provided or will be provided under a health plan.
(2) "Health care provider" or "provider" means a health care professional or facility.
(3) "Health carrier" means an entity that is subject to the insurance laws and rules of this state and that contracts, offers to contract, or enters into an agreement to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services. The term includes a disability insurer, health maintenance organization, or a health service corporation or other entity providing a health benefit plan.
(4) "Health plan" or "health benefit plan" means a policy, contract, certificate, or agreement entered into, offered, or issued by a health carrier to provide, deliver, arrange for, pay for, or reimburse any of the costs of health care services.
(5) "Managed care organization" means an entity that manages, owns, contracts with, or employs health care providers to provide health care services under a health plan. The term includes a health maintenance organization, as defined in 33-31-102, and an entity that does not itself provide health plans.
(6) "Medical communication" means:
(a) a communication made by a health care provider to an enrollee or to the guardian or other legal representative of an enrollee receiving health care services from the provider:
(i) concerning the mental or physical health care needs or treatment of the enrollee and the provisions, terms, or requirements of the health plan or another health plan relating to the needs or treatment of the enrollee; and
(ii) including a communication concerning:
(A) a test, consultation, or treatment option and a risk or benefit associated with the test, consultation, or option;
(B) variation among health care providers and health care facilities, as defined in 50-5-101, in experience, quality of health care services, or health outcomes;
(C) the basis or standard for the decision of the enrollee's health carrier or managed care organization to authorize or deny a health care service;
(D) the process used by the enrollee's health carrier or managed care organization to determine whether to authorize or deny a health care service; or
(E) a financial incentive or disincentive provided by the enrollee's health carrier or managed care organization to a health care provider to authorize or deny a health care service;
(b) a communication made by a health care provider to another health care provider, an employee or contractor of the enrollee's managed care organization, or an employee of the health carrier advocating a particular method of treatment on behalf of an enrollee.
Section 3. Gag clauses and other action affecting medical communications prohibited -- exceptions. (1) A health carrier or managed care organization may not by an oral or written contract, by an oral or written direction or requirement, or by a financial inducement or penalty prohibit a provider from making or interfere with a provider making a medical communication to an enrollee. A contract, direction, requirement, or financial inducement or penalty violating this subsection is void.
(2) Subsection (1) does not apply to:
(a) an oral or written contract, direction, requirement, or financial inducement or penalty prohibiting a provider from disclosing a trade secret, as defined in 30-14-402, to the same extent as other employees or contractors of the health carrier or managed care organization are prohibited from disclosing the trade secret;
(b) an oral or written contract, direction, requirement, or financial inducement or penalty prohibiting a health care provider from referring an enrollee to another health plan or managed care organization in which the provider making the referral has a direct financial interest; and
(c) the terms of an oral or written contract mutually agreed upon by a health carrier or managed care organization and a provider requiring the provider to participate in and cooperate with all programs, policies, and procedures implemented by the health carrier or managed care organization to ensure, review, or improve the quality of health care.
Section 4. Sanction because of medical communication prohibited. A health carrier or managed care organization may not take any of the following actions with regard to a health care provider because the provider made a medical communication to an enrollee or to the guardian or legal representative of the enrollee:
(1) terminate an agreement between the health carrier or managed care organization and the health care provider to provide health care services;
(2) reduce compensation to the provider;
(3) demote the provider in regard to relative seniority within the managed care organization;
(4) transfer the provider to other duties within the managed care organization;
(5) deny the provider admitting or other privileges; or
(6) take other action against the provider in retaliation for a medical communication made by the provider to an enrollee.
Section 5. Civil penalty -- civil action for collection of penalty. (1) A health carrier or a managed care organization violating [section 3 or 4] is subject to a civil penalty, as provided in 33-1-317, for each violation. Each day of violation constitutes a separate violation for the purposes of this section.
(2) In addition to other enforcement methods provided by law, the commissioner may bring a civil action in the district court of the first judicial district to collect the civil penalty provided for in subsection (1) from a person violating a provision of [sections 2 through 5]. An amount collected by the commissioner pursuant to this section must be deposited in the general fund.
Section 6. Codification instruction. [Sections 2 through 5] are intended to be codified as an integral part of Title 33, and the provisions of Title 33 apply to [sections 2 through 5].
Section 7. Applicability. [This act] applies to contracts entered into or renewed after [the effective date of this act] between a health care provider and a health carrier or managed care organization.