86R10376 SCL-F
 
  By: Whitmire S.B. No. 1591
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to prohibited balance billing and an independent dispute
  resolution program for out-of-network coverage under certain
  managed care plans; authorizing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle C, Title 8, Insurance Code, is amended
  by adding Chapter 1275 to read as follows:
  CHAPTER 1275. ENROLLEE RESPONSIBILITY FOR COVERED OUT-OF-NETWORK
  SERVICES
         Sec. 1275.0001.  DEFINITIONS. In this chapter:
               (1)  "Enrollee" means an individual who is eligible for
  coverage under a health benefit plan.
               (2)  "Health benefit plan" means an individual, group,
  blanket, or franchise insurance policy or insurance agreement, a
  group hospital service contract, or an individual or group evidence
  of coverage or similar coverage document that provides benefits for
  health care services. The term does not include:
                     (A)  the state Medicaid program, including the
  Medicaid managed care program operated under Chapter 533,
  Government Code;
                     (B)  the child health plan program operated under
  Chapter 62, Health and Safety Code;
                     (C)  Medicare benefits; or
                     (D)  benefits designated as excepted benefits
  under 42 U.S.C. Section 300gg-91(c).
               (3)  "Health benefit plan issuer" means an entity
  authorized to engage in business under this code or another
  insurance law of this state that issues or offers to issue a health
  benefit plan in this state, including:
                     (A)  an insurance company;
                     (B)  a group hospital service corporation
  operating under Chapter 842;
                     (C)  a health maintenance organization operating
  under Chapter 843; and
                     (D)  a stipulated premium company operating under
  Chapter 884.
               (4)  "Health care facility" means a hospital, emergency
  clinic, outpatient clinic, birthing center, ambulatory surgical
  center, or other facility licensed to provide health care services.
               (5)  "Health care practitioner" means an individual who
  is licensed to provide and provides health care services.
               (6)  "Health care provider" means a health care
  practitioner or health care facility.
               (7)  "Managed care plan" means a health benefit plan
  under which health care services are provided to enrollees through
  contracts with health care providers and that requires enrollees to
  use participating providers or that provides a different level of
  coverage for enrollees who use participating providers. The term
  includes a health benefit plan issued by:
                     (A)  a health maintenance organization;
                     (B)  a preferred provider benefit plan issuer; or
                     (C)  any other health benefit plan issuer.
               (8)  "Out-of-network provider" means a health care
  provider who is not a participating provider.
               (9)  "Participating provider" means a health care
  provider, including a preferred provider, who has contracted with a
  health benefit plan issuer to provide services to enrollees.
               (10)  "Usual, customary, and reasonable rate" has the
  meaning assigned by Section 1467.201.
         Sec. 1275.0002.  APPLICABILITY OF CHAPTER. This chapter
  applies only with respect to a managed care plan.
         Sec. 1275.0003.  CERTAIN PLANS EXCLUDED.  This chapter does
  not apply to a service covered by a health benefit plan subject to
  Subchapter B, Chapter 1467.
         Sec. 1275.0004.  BALANCE BILLING PROHIBITED. (a) A health
  benefit plan issuer shall pay for a covered service performed for an
  enrollee under the health benefit plan by an out-of-network
  provider at the usual, customary, and reasonable rate or at an
  agreed rate.
         (b)  An out-of-network provider may not bill an enrollee in,
  and the enrollee has no financial responsibility for, an amount
  greater than the enrollee's responsibility under the enrollee's
  managed care plan, including an applicable copayment, coinsurance,
  or deductible.
         SECTION 2.  Chapter 1467, Insurance Code, is amended by
  adding Subchapter E to read as follows:
  SUBCHAPTER E. INDEPENDENT DISPUTE RESOLUTION PROGRAM
         Sec. 1467.201.  DEFINITIONS. In this subchapter:
               (1)  "Health benefit plan" means an individual, group,
  blanket, or franchise insurance policy or insurance agreement, a
  group hospital service contract, or an individual or group evidence
  of coverage or similar coverage document that provides benefits for
  health care services. The term does not include:
                     (A)  the state Medicaid program, including the
  Medicaid managed care program operated under Chapter 533,
  Government Code;
                     (B)  the child health plan program operated under
  Chapter 62, Health and Safety Code;
                     (C)  Medicare benefits; or
                     (D)  benefits designated as excepted benefits
  under 42 U.S.C. Section 300gg-91(c).
               (2)  "Health benefit plan issuer" means an entity
  authorized to engage in business under this code or another
  insurance law of this state that issues or offers to issue a health
  benefit plan in this state, including:
                     (A)  an insurance company;
                     (B)  a group hospital service corporation
  operating under Chapter 842;
                     (C)  a health maintenance organization operating
  under Chapter 843; and
                     (D)  a stipulated premium company operating under
  Chapter 884.
               (3)  "Health care facility" means a hospital, emergency
  clinic, outpatient clinic, birthing center, ambulatory surgical
  center, or other facility licensed to provide health care services.
               (4)  "Health care provider" means a health care
  practitioner or health care facility.
               (5)  "Managed care plan" means a health benefit plan
  under which health care services are provided to enrollees through
  contracts with health care providers and that requires enrollees to
  use participating providers or that provides a different level of
  coverage for enrollees who use participating providers. The term
  includes a health benefit plan issued by:
                     (A)  a health maintenance organization;
                     (B)  a preferred provider benefit plan issuer; or
                     (C)  any other health benefit plan issuer.
               (6)  "Out-of-network provider" means a health care
  provider who is not a participating provider.
               (7)  "Participating provider" means a health care
  provider who has contracted with a health benefit plan issuer to
  provide services to enrollees.
               (8)  "Usual, customary, and reasonable rate" means the
  80th percentile of all charges for a particular health care service
  performed by a health care provider in the same or similar specialty
  and provided in the same geographical area as reported in a
  benchmarking database described by Section 1467.203.
         Sec. 1467.202.  APPLICABILITY OF SUBCHAPTER. This
  subchapter applies only with respect to a managed care plan.
         Sec. 1467.203.  BENCHMARKING DATABASE. (a) The
  commissioner shall select a nonprofit organization to maintain a
  benchmarking database that contains information necessary to
  calculate the usual, customary, and reasonable rate for each
  geographical area in this state.
         (b)  The commissioner may not select under Subsection (a) a
  nonprofit organization that is financially affiliated with a health
  benefit plan issuer.
         Sec. 1467.204.  ESTABLISHMENT AND ADMINISTRATION OF
  PROGRAM. (a) The commissioner shall establish and administer an
  independent dispute resolution program to resolve disputes over
  out-of-network provider charges, including balance billing, in
  accordance with this subchapter.
         (b)  The commissioner:
               (1)  shall adopt rules, forms, and procedures necessary
  for the implementation and administration of the independent
  dispute resolution program;
               (2)  may impose a fee on the parties participating in
  the program as necessary to cover the cost of implementation and
  administration of the program; and
               (3)  shall maintain a list of qualified reviewers for
  the program.
         Sec. 1467.205.  ISSUE TO BE ADDRESSED; BASIS FOR
  DETERMINATION. (a) The only issue that an independent reviewer may
  determine in a hearing under the independent dispute resolution
  program is the reasonable charge for the health care services
  provided to the enrollee by an out-of-network provider.
         (b)  The determination must take into account:
               (1)  whether there is a gross disparity between the fee
  charged by the out-of-network provider and:
                     (A)  fees paid to the out-of-network provider for
  the same services rendered by the provider to other enrollees for
  which the provider is an out-of-network provider; and
                     (B)  fees paid by the health benefit plan issuer
  to reimburse similarly qualified out-of-network providers for the
  same services in the same region;
               (2)  the level of training, education, and experience
  of the out-of-network provider;
               (3)  the out-of-network provider's usual charge for
  comparable services with regard to other enrollees for which the
  provider is an out-of-network provider;
               (4)  the circumstances and complexity of the enrollee's
  particular case, including the time and place of the service;
               (5)  individual enrollee characteristics; and
               (6)  the usual, customary, and reasonable rate for the
  health care service.
         Sec. 1467.206.  INITIATION OF PROCESS. (a) A health benefit
  plan issuer or out-of-network provider may initiate an independent
  dispute resolution process in the form and manner provided by
  commissioner rule to determine the amount of reimbursement for a
  health care service provided by the provider.
         (b)  A party may respond to the claims made by the party
  initiating the independent dispute resolution process under
  Subsection (a) not later than the 15th day after the date the
  process is initiated. If the responding party fails to respond,
  that party accepts the claims made by the initiating party.
         Sec. 1467.207.  SELECTION AND APPROVAL OF INDEPENDENT
  REVIEWERS. (a) If the parties do not select an independent
  reviewer by mutual agreement on or before the 30th day after the
  date the independent dispute resolution process is initiated, the
  commissioner shall select a reviewer from the commissioner's list
  of qualified reviewers.
         (b)  To be eligible to serve as an independent reviewer, an
  individual must be knowledgeable and experienced in applicable
  principles of contract and insurance law and the health care
  industry generally.
         (c)  In approving an individual as an independent reviewer,
  the commissioner shall ensure that the individual does not have a
  conflict of interest that would adversely impact the individual's
  independence and impartiality in rendering a decision in an
  independent dispute resolution process. A conflict of interest
  includes current or recent ownership or employment of the
  individual or a close family member in a health benefit plan issuer
  or out-of-network provider that may be involved in the process.
         (d)  The commissioner shall immediately terminate the
  approval of an independent reviewer who no longer meets the
  requirements under this subchapter and rules adopted under this
  subchapter to serve as an independent reviewer.
         Sec. 1467.208.  PROCEDURES. (a) A party to an independent
  dispute resolution process may request an oral hearing.
         (b)  If an oral hearing is not requested, the independent
  reviewer shall set a date for submission of all information to be
  considered by the reviewer.
         (c)  A party to an independent dispute resolution process
  shall submit a binding award amount to the independent reviewer.
         (d)  An independent reviewer may make procedural rulings
  during an oral hearing.
         (e)  A party may not engage in discovery in connection with
  an independent dispute resolution process.
         Sec. 1467.209.  DECISION. (a) Not later than the 10th day
  after the date of an oral hearing or the deadline for submission of
  information, as applicable, an independent reviewer shall provide
  the parties with a written decision in which the reviewer
  determines which binding award amount submitted under Section
  1467.208 is the closest to the reasonable charge for the services
  provided in accordance with Section 1467.205(b).
         (b)  An independent reviewer may not modify the binding award
  amount selected under Subsection (a).
         (c)  The decision described by Subsection (a) is binding and
  final. The prevailing party may seek enforcement of the decision in
  any court of competent jurisdiction.
         Sec. 1467.210.  ATTORNEY'S FEES AND COSTS. Unless otherwise
  agreed by the parties to an independent dispute resolution process,
  each party shall:
               (1)  bear the party's own attorney's fees and costs; and
               (2)  equally split the fees and costs of the
  independent reviewer.
         SECTION 3.  Sections 1467.001(3), (5), and (7), Insurance
  Code, are amended to read as follows:
               (3)  "Enrollee" means an individual who is eligible to
  receive benefits through [a preferred provider benefit plan or] a
  health benefit plan [under Chapter 1551, 1575, or 1579].
               (5)  "Mediation" means a process in which an impartial
  mediator facilitates and promotes agreement between an [the insurer
  offering a preferred provider benefit plan or the] administrator
  and a facility-based provider or emergency care provider or the
  provider's representative to settle a health benefit claim of an
  enrollee.
               (7)  "Party" means a health [an insurer offering a
  preferred provider] benefit plan issuer, an administrator, or a
  facility-based provider or emergency care provider or the
  provider's representative who participates in a mediation
  conducted under this chapter. The enrollee is also considered a
  party to the mediation.
         SECTION 4.  Section 1467.002, Insurance Code, is amended to
  read as follows:
         Sec. 1467.002.  APPLICABILITY OF CHAPTER. Except as
  provided by Subchapter E, this [This] chapter applies only to[:
               [(1)     a preferred provider benefit plan offered by an
  insurer under Chapter 1301; and
               [(2)]  an administrator of a health benefit plan, other
  than a health maintenance organization plan, under Chapter 1551,
  1575, or 1579.
         SECTION 5.  Section 1467.005, Insurance Code, is amended to
  read as follows:
         Sec. 1467.005.  REFORM. This chapter may not be construed to
  prohibit:
               (1)  an [insurer offering a preferred provider benefit
  plan or] administrator from, at any time, offering a reformed claim
  settlement; or
               (2)  a facility-based provider or emergency care
  provider from, at any time, offering a reformed charge for health
  care or medical services or supplies.
         SECTION 6.  Sections 1467.051(a) and (b), Insurance Code,
  are amended to read as follows:
         (a)  An enrollee may request mediation of a settlement of an
  out-of-network health benefit claim if:
               (1)  the amount for which the enrollee is responsible
  to a facility-based provider or emergency care provider, after
  copayments, deductibles, and coinsurance, including the amount
  unpaid by the administrator [or insurer], is greater than $500; and
               (2)  the health benefit claim is for:
                     (A)  emergency care; or
                     (B)  a health care or medical service or supply
  provided by a facility-based provider in a facility that is a
  preferred provider or that has a contract with the administrator.
         (b)  Except as provided by Subsections (c) and (d), if an
  enrollee requests mediation under this subchapter, the
  facility-based provider or emergency care provider, or the
  provider's representative, and [the insurer or] the
  administrator[, as appropriate,] shall participate in the
  mediation.
         SECTION 7.  Section 1467.0511, Insurance Code, is amended to
  read as follows:
         Sec. 1467.0511.  NOTICE AND INFORMATION PROVIDED TO
  ENROLLEE. (a)  A bill sent to an enrollee by a facility-based
  provider or emergency care provider or an explanation of benefits
  sent to an enrollee by an [insurer or] administrator for an
  out-of-network health benefit claim eligible for mediation under
  this chapter must contain, in not less than 10-point boldface type,
  a conspicuous, plain-language explanation of the mediation process
  available under this chapter, including information on how to
  request mediation and a statement that is substantially similar to
  the following:
         "You may be able to reduce some of your out-of-pocket costs
  for an out-of-network medical or health care claim that is eligible
  for mediation by contacting the Texas Department of Insurance at
  (website) and (phone number)."
         (b)  If an enrollee contacts an [insurer,] administrator,
  facility-based provider, or emergency care provider about a bill
  that may be eligible for mediation under this chapter, the
  [insurer,] administrator, facility-based provider, or emergency
  care provider is encouraged to:
               (1)  inform the enrollee about mediation under this
  chapter; and
               (2)  provide the enrollee with the department's
  toll-free telephone number and Internet website address.
         SECTION 8.  Section 1467.052(c), Insurance Code, is amended
  to read as follows:
         (c)  A person may not act as mediator for a claim settlement
  dispute if the person has been employed by, consulted for, or
  otherwise had a business relationship with [an insurer offering the
  preferred provider benefit plan or] a physician, health care
  practitioner, or other health care provider during the three years
  immediately preceding the request for mediation.
         SECTION 9.  Section 1467.053(d), Insurance Code, is amended
  to read as follows:
         (d)  The mediator's fees shall be split evenly and paid by
  the [insurer or] administrator and the facility-based provider or
  emergency care provider.
         SECTION 10.  Sections 1467.054(b) and (c), Insurance Code,
  are amended to read as follows:
         (b)  A request for mandatory mediation must be provided to
  the department on a form prescribed by the commissioner and must
  include:
               (1)  the name of the enrollee requesting mediation;
               (2)  a brief description of the claim to be mediated;
               (3)  contact information, including a telephone
  number, for the requesting enrollee and the enrollee's counsel, if
  the enrollee retains counsel;
               (4)  the name of the facility-based provider or
  emergency care provider and name of the [insurer or] administrator;
  and
               (5)  any other information the commissioner may require
  by rule.
         (c)  On receipt of a request for mediation, the department
  shall notify the facility-based provider or emergency care provider
  and [insurer or] administrator of the request.
         SECTION 11.  Section 1467.055(i), Insurance Code, is amended
  to read as follows:
         (i)  A health care or medical service or supply provided by a
  facility-based provider or emergency care provider may not be
  summarily disallowed.  This subsection does not require an [insurer
  or] administrator to pay for an uncovered service or supply.
         SECTION 12.  Sections 1467.056(a), (b), and (d), Insurance
  Code, are amended to read as follows:
         (a)  In a mediation under this chapter, the parties shall:
               (1)  evaluate whether:
                     (A)  the amount charged by the facility-based
  provider or emergency care provider for the health care or medical
  service or supply is excessive; and
                     (B)  the amount paid by the [insurer or]
  administrator represents the usual and customary rate for the
  health care or medical service or supply or is unreasonably low; and
               (2)  as a result of the amounts described by
  Subdivision (1), determine the amount, after copayments,
  deductibles, and coinsurance are applied, for which an enrollee is
  responsible to the facility-based provider or emergency care
  provider.
         (b)  The facility-based provider or emergency care provider
  may present information regarding the amount charged for the health
  care or medical service or supply.  The [insurer or] administrator
  may present information regarding the amount paid by the [insurer
  or] administrator.
         (d)  The goal of the mediation is to reach an agreement among
  the enrollee, the facility-based provider or emergency care
  provider, and the [insurer or] administrator[, as applicable,] as
  to the amount paid by the [insurer or] administrator to the
  facility-based provider or emergency care provider, the amount
  charged by the facility-based provider or emergency care provider,
  and the amount paid to the facility-based provider or emergency
  care provider by the enrollee.
         SECTION 13.  Section 1467.058, Insurance Code, is amended to
  read as follows:
         Sec. 1467.058.  CONTINUATION OF MEDIATION. After a referral
  is made under Section 1467.057, the facility-based provider or
  emergency care provider and the [insurer or] administrator may
  elect to continue the mediation to further determine their
  responsibilities. Continuation of mediation under this section
  does not affect the amount of the billed charge to the enrollee.
         SECTION 14.  Section 1467.151(b), Insurance Code, is amended
  to read as follows:
         (b)  The department and the Texas Medical Board or other
  appropriate regulatory agency shall maintain information:
               (1)  on each complaint filed that concerns a claim or
  mediation subject to this chapter; and
               (2)  related to a claim that is the basis of an enrollee
  complaint, including:
                     (A)  the type of services that gave rise to the
  dispute;
                     (B)  the type and specialty, if any, of the
  facility-based provider or emergency care provider who provided the
  out-of-network service;
                     (C)  the county and metropolitan area in which the
  health care or medical service or supply was provided;
                     (D)  whether the health care or medical service or
  supply was for emergency care; and
                     (E)  any other information about:
                           (i)  the [insurer or] administrator that the
  commissioner by rule requires; or
                           (ii)  the facility-based provider or
  emergency care provider that the Texas Medical Board or other
  appropriate regulatory agency by rule requires.
         SECTION 15.  The changes in law made by this Act apply only
  to a health benefit plan delivered, issued for delivery, or renewed
  on or after January 1, 2020. A health benefit plan delivered,
  issued for delivery, or renewed before January 1, 2020, is governed
  by the law as it existed immediately before the effective date of
  this Act, and that law is continued in effect for that purpose.
         SECTION 16.  This Act takes effect September 1, 2019.