TITLE insurance

Part I. Texas Department of Insurance

Chapter 3. Life, Accident, Health Insurance and Annuities

Subchapter MM. Assessment

28 TAC §3.13001

The Commissioner of Insurance adopts new §3.13001, concerning definitions, procedures, criteria and forms for the making and collecting of assessments on insurers that provide health insurance in this state by the Texas Health Insurance Risk Pool. The section is adopted with changes to the proposed text as published in the December 19, 1997 issue of the Texas Register (22 TexReg 12394). A public hearing on the section was held on January 8, 1998.

The new section is required by Insurance Code, Article 3.77, §8 which directs the commissioner of insurance to adopt rules to provide the procedures, criteria and forms necessary for the Texas Health Insurance Risk Pool to implement, collect and deposit assessments made to recoup the Pool's net loss under Insurance Code, Article 3.77, §13. The section was developed with the assistance of the Board of Directors of the Texas Health Insurance Risk Pool to assure that it met the needs of the pool. The board of directors of the pool has frequently expressed its desire to minimize administrative costs so that the maximum amount of money collected in premiums and assessments can be used by the pool to pay claims, therefore the adopted section is intended to meet the requirement of Insurance Code, Article 3.77, §8, while minimizing the cost of compliance with the section for the pool. Besides the board's contribution in the drafting of the section, several changes were made to the proposed section in response to the board's testimony at the hearing on the section and written comments submitted by the board. The definition of "insurer" in §3.13001(a)(2) was changed, a new paragraph in §3.13001(c)(5) was inserted, §3.13001(c)(3) was changed and §3.13001(e) was changed, all in response to comments from the pool. In addition to the latitude provided in the procedures for making assessments and the criteria for those assessments, the section provides the pool with an outline for the forms to be used in determining and collecting assessments, instead of adopting a specific form. The adopted section provides an uncomplicated procedure and clear criteria for the making of assessments by the board of directors of the pool.

Every insurer that collects health insurance premiums in this state will be affected by the section. The Texas Health Insurance Risk Pool is authorized by Insurance Code, Article 3.77, §13, to assess insurers providing health insurance in this state for operating funds and for any net loss experienced by the pool in providing insurance to medically uninsurable Texans. The new section provides definitions, procedures, criteria and forms for the making and collecting of assessments by the Texas Health Insurance Risk Pool. Section 3.13001(a) contains definitions of the terms used in the section. The definition of "insurer" was changed in response to a comment to conform it to the definition of "insurer" in Insurance Code, Article 3.77. Section 3.13001(b) authorizes the board of directors of the pool to consider and determine the need for, and the amount of, any regular and interim assessments at any meeting of the board. Section 3.13001(c)(1)-(3) provides that interim assessments shall cover estimated cash requirements of the pool and shall be credited against the regular assessment for the applicable fiscal year. Section 3.13001(c)(4) directs the board to request insurers to provide the board information on their health insurance premiums in this state. If an insurer does not provide the information, the section provides that the board may presume that all the insurer's health insurance premiums reported to the Texas Department of Insurance are assessable. A new section 3.13001(c)(5) was inserted in response to a comment and proposed §3.13001(c)(4) was renumbered as paragraph (5). Proposed §3.13001(c)(5) was renumbered as paragraph (6). It provides that the pool may audit the information on health insurance premiums submitted by insurers. Section 3.13001(c)(6) was renumbered as paragraph (7). It provides that the board shall determine the date an assessment must be paid by an insurer and charge interest if an assessment is not paid when due. Section 3.13001(c)(7) was renumbered as paragraph (8). It provides that the limitation on assessments of one-half of one percent of an insurers collected health insurance premiums in this state in Insurance Code, Article 3.77, §13(e) shall be calculated on the insurer's collected health insurance premiums for that year. It further provides that the limit shall not apply after January 1, 2000, which is consistent with the expiration date in the statute.

Section 3.13001(d) prescribes the information the board will provide an insurer when an insurer is notified of an assessment. It directs the board to adopt a form for the gathering information on health insurance premiums provided for in Section 3.13001(c)(4).

Section 3.13001(e) was changed in response to a comment by changing the title of the subsection changed to "Unpaid Assessments or Abatements." Also in response to a comment, a sentence was added at the end of the subsection providing that an insurer receiving an abatement or deferment shall remain liable to the pool for the deficiency. Since the sentence is identical to the language in Insurance Code, Article 3.77, §13(e), there is no substantive change caused by the addition of this sentence.

Five commenters suggested that the definition of "health insurance premium" in §3.13001(a)(1) be changed by adding Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76 to the coverages that are excluded from the definition of the term under §3.13001(a)(1)(B).

RESPONSE: Staff disagrees with the comments, but has inserted a new paragraph (5) in §3.13001(c) and renumbered the subsequent paragraphs. The definition of "health insurance premiums" in the section is patterned after the definition of "health insurance" in Insurance Code, Article 3.77, §2. Medicare supplement premiums and small group health insurance premiums are clearly health insurance coverages, however Insurance Code, Article 3.77 §13(d) specifically provides that the premium for these coverages is excluded in the calculation of the amount of an assessment on an insurer. Since the calculation of an assessment is expressly described in Article 3.77, §13(d), the department did not repeat it in the regulation. To address the concerns expressed by the commenters, the department has inserted a new paragraph (5) in §3.13001(c) and renumbered paragraphs (5) through (7). The new §3.13001(c)(5) paraphrases Article 3.77, §13(d), therefore the new paragraph has no substantive effect.

Two commenters suggested that long term care insurance be excluded from the definition of health insurance premium.

RESPONSE: The definition of "health insurance premiums" is patterned after the definition of "health insurance" in Article 3.77, §2. The statutory definition does not mention long term care, and is not susceptible to an interpretation that would allow excluded coverages to be expanded by a regulation of the department. For example, in the Health Insurance Portability and Availability Act (Insurance Code, Article 26.035), the Legislature excluded long term care coverage from the definition of "creditable coverage", therefore, the department believes the Legislature could have used similar language in Article 3.77 if it intended to exclude long term care premiums.

Another commenter noted that the definition of "insurer" in §3.13001(a)(2) did not include the language in Insurance Code, Article 3.77 that provides "and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation."

RESPONSE: The department has added the language to the definition of "insurer" in the section.

One commenter said there was inconsistency in terms between §3.13001(c)(3) and §3.13001(c)(2) and suggested that "incurred claims" in paragraph (3) be changed to "incurred losses for the current calendar year."

RESPONSE: The department agrees with the comment and changed §3.13001(c)(3) in accordance with the comment.

One commenter stated that "each insurer" be deleted from §3.13001(c)(4) because it was redundant.

RESPONSE: The intent of §3.13001(c)(4) is to direct the board of directors of the pool to determine the total amount of health insurance premiums collected in this state by all insurers and the total amount of health insurance premiums collected in this state by each insurer. These two numbers will be used as the denominator and the numerator, respectively, in the calculation of an insurer's assessment.

One commenter stated that the title of §3.13001(e) should be changed since the subsection did not address enforcement of the section. The commenter suggested the subsection be titled "Unpaid Assessments or Abatements."

RESPONSE: The department agrees with the comment and changed §3.13001(e) in accordance with the comment.

One commenter recommended that §3.13001(e)(2) be changed by adding a sentence at the end of the paragraph so it would conform with Insurance Code, Article 3.77, §13(c).

RESPONSE: The sentence, "The insurer receiving such abatement or deferment shall remain liable to the pool for the deficiency," was added to paragraph(2).

Comments on the provisions of the section were received from Texas Health Insurance Risk Pool, American Council of Life Insurance, Texas Association of Life and Health Insurers and Health Insurance Association of America. The Texas Health Insurance Risk Pool and the Texas Association of Life and Health Insurers also testified at the hearing. No comments for or against the section were received.

The new section is adopted under the Insurance Code, Articles 3.77 and 1.03A. Article 3.77, §8 provides authorization for the Commissioner of Insurance to adopt rules to provide the procedures, criteria and forms necessary to implement, collect, and deposit assessments made and collected under the Insurance Code, Article 3.77, §13. Article 1.03A provides that the commissioner of insurance may adopt rules and regulations for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute.

§3.13001.Assessments.

(a)

Definitions. Words and terms used in this section that are defined in Insurance Code, Article 3.77, have the same meanings as defined therein. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1)

Health insurance premiums - any consideration collected by an insurer for individual or group medical or health care services for residents of the State of Texas whether by insurance or otherwise, or received by a health care plan or arrangement that pays for or furnishes medical or health care services whether by insurance or otherwise.

(A)

The term includes, but is not limited to the coverages described in clauses (i) - (iv) of this paragraph:

(i)

individual or group medical or health care services;

(ii)

Stop-loss or excess loss insurance for physicians, health care providers, hospitals, or for any benefit arrangements to the extent permitted by Section 3, Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002);

(iii)

Hospital, medical or surgical expense incurred coverages or any combination of coverages; or

(iv)

Health coverage provided through a multiple employer welfare arrangement, except for any amount for stop loss or excess loss insurance.

(B)

The term does not include the coverages described in (i) - (x) of this paragraph:

(i)

short term limited duration coverage;

(ii)

coverage only for accident (including accidental death and dismemberment;

(iii)

disability income insurance;

(iv)

dental only or vision only benefits that are limited in scope to a narrow range or type of benefits and that are generally excluded from policies that combine hospital medical or surgical benefits;

(v)

credit insurance;

(vi)

coverage only for a specified disease or illness (for example, cancer policies), or hospital indemnity or other fixed indemnity insurance (for example "Hospital Confinement Indemnity Coverage" as defined in §3.3073 of this title (relating to Minimum Standards for Hospital Confinement Indemnity Coverage) provided that:

(I)

there is no coordination between the provision of benefits and benefits provided under any other policy; and

(II)

benefits are paid with respect to a covered event regardless of whether benefits are provided with respect to the same event under any policy.

(vii)

coverage issued as a supplement to liability insurance;

(viii)

insurance arising out of workers' compensation or similar law;

(ix)

automobile medical-payment insurance and personal injury protection; or

(x)

insurance under which benefits are payable with or without regard to fault and which is statutorily required to be contained in any liability insurance policy or equivalent self insurance.

(2)

Insurer - any entity that provides health insurance in this state, including stop-loss or excess loss insurance. The term includes, but is not limited to, an insurance company; a health maintenance organization operating under the Texas Health Maintenance Organization Act (Chapter 20A, Insurance Code); an approved nonprofit health corporation; a fraternal benefit society; a stipulated premium insurance company; a group hospital service corporation subject to Chapter 20, Insurance Code; a multiple employer welfare arrangement subject to Insurance Code, Article 3.95-1 et seq., a surplus lines carrier; an insurer providing stop-loss or excess loss insurance to physicians, health care providers, hospitals, or to any benefit arrangements to the extent permitted by Section 3, Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002); and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation.

(3)

Interim assessment - an assessment made for the purpose of funding anticipated shortfall of revenues to cover organizational and interim operating expenses, including claims, of the pool.

(4)

Regular assessment - an assessment made for the purpose of recouping any net losses of the pool during the previous calendar year.

(b)

Procedures.

(1)

For the purpose of providing the funds necessary to carry out the powers and duties of the pool, the board shall determine interim and regular assessments, at such times and for such amounts as the board finds necessary.

(2)

Interim and regular assessments may be considered at any meeting of the board and must be approved by the board in accordance with the plan of operation.

(c)

Criteria.

(1)

Computation of the funds necessary to carry out the powers and duties of the pool shall be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible.

(2)

Regular assessments shall cover the net losses of the pool, including administrative expenses and incurred losses, for the preceding calendar year as determined by the board and reported in the annual statement of the pool filed with the commissioner. Any interim assessments made in a fiscal year shall be credited as offsets against the regular assessment for that fiscal year.

(3)

Interim assessments shall cover projected cash requirements of the pool, as determined by the board, after taking into account operating and investment activity and expected and incurred losses for the current calendar year which may exceed collected premiums.

(4)

The board shall determine the health insurance premiums of all insurers and each insurer in the state from information provided by the insurers, subject to verification as provided in paragraph (6) of this subsection. If an insurer fails to timely respond to a request for information, the board shall presume that the unresponsive insurer has no health insurance premiums exempt from assessment and the amount reflected in the Schedule T of the annual statement for the preceding year for accident, health insurance premium including policy, membership and other fees shall be used in determining its assessment. In the event the entity does not file on schedule T, or does not file schedule T for all affected premiums, the board shall use the most comparable available information.

(5)

The assessment imposed against each insurer shall be in an amount that is equal to the ratio of the health insurance premiums collected by the insurer in this state during the preceding calendar year, except for Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76, to the health insurance premiums collected by all insurers in this state during the preceding calendar year, except for Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76.

(6)

The board may audit from time to time the information provided by insurers under paragraph (4) of this subsection.

(7)

The board shall determine the due date for payment of the assessment, which shall not be less than the 30th day after the date on which the notice of the assessment is mailed to the insurers. Interest shall accrue on any unpaid amount at a rate determined by the board, beginning on the due date.

(8)

The total amount of all assessments on an insurer in a calendar year shall not exceed one-half of one percent of the insurer's health insurance premiums for that year. The limitation in this paragraph does not apply on or after January 1, 2000.

(d)

Forms.

(1)

The board shall adopt a form for the invoicing of each insurer's portion of any assessment. The form shall include:

(A)

The health insurance premiums for all insurers for the preceding calendar year except for Medicare supplement premiums subject to Article 3.74 and small group health insurance premiums subject to Articles 26.01 through 26.76;

(B)

The health insurance premiums for the individual insurer for the preceding calendar year except for Medicare supplement premiums subject to Article 3.74 and small group health insurance premiums subject to Articles 26.01 through 26.76;

(C)

The amount of total assessment and whether the assessment is a regular assessment or interim assessment;

(D)

If a regular assessment, the amount of any interim assessment credited toward that regular assessment;

(E)

The amount of the assessment for the insurer; and

(F)

The payment due date for the assessment and the interest rate which will apply to any delinquent payment.

(2)

The board shall adopt a form for requesting the data necessary to determine the amount of assessments.

(e)

Unpaid Assessments or Abatements.

(1)

Any insurer whose certificate of authority to do business in this state is canceled or surrendered shall be liable for any unpaid assessments that relate to health insurance premiums written prior to the date of such cancellation or surrender.

(2)

An insurer may petition the commissioner for an abatement or deferment of all or part of an assessment imposed by the board. The commissioner may abate or defer, in whole or in part, such assessment if the commissioner determines that the payment of the assessment would endanger the ability of the participating insurer to fulfill its contractual obligations. If an assessment against an insurer is abated or deferred in whole or in part, the amount of such assessment abated or deferred shall be assessed against the other insurers in a manner consistent with the basis for assessments set forth in Insurance Code, Article 3.77, §13(e). The insurer receiving such abatement or deferment shall remain liable to the pool for the deficiency.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 27, 1998.

TRD-9801200

Caroline Scott

General Counsel and Chief Clerk

Texas Department of Insurance

Effective date: February 16, 1998

Proposal publication date: December 19, 1997

For further information, please call: (512) 463-6327


Chapter 12. Independent Review Organizations

Subchapter C. General Standards of Independent Review

28 TAC §12.208

Due to a technical error on behalf of the Texas Register, the text of the following rule submitted by the Texas Department of Insurance was inadvertently omitted from the November 21, 1997, issue of the Texas Register (22 TexReg 8853). Section 12.208 was adopted with changes and should have been republished.

§12.208. Confidentiality.

(a)

An independent review organization shall preserve the confidentiality of individual medical records, personal information, and any proprietary information provided by payors. Personal information shall include, at a minimum, name, address, telephone number, social security number and financial information.

(b)

An independent review organization may not disclose or publish individual medical records or other confidential information about a patient without the prior written consent of the patient or as otherwise required by law. An independent review organization may provide confidential information to a third party under contract or affiliated with the independent review organization for the sole purpose of performing or assisting with independent review. Information provided to third parties shall remain confidential.

(c)

The independent review organization may not publish data which identify a particular payor, physician or provider, including any quality review studies or performance tracking data, without prior written consent of the involved payor, physician or provider. This prohibition does not apply to internal systems or reports used by the independent review organization.

(d)

All payor, patient, physician, and provider data shall be maintained by the independent review organization in a confidential manner which prevents unauthorized disclosure to third parties. Nothing in this chapter shall be construed to allow an independent review organization to take actions that violate a state or federal statute or regulation concerning confidentiality of patient records.

(e)

To assure confidentiality, an independent review organization must, when contacting a utilization review agent, a physician's or provider's office, or hospital, provide its certification number and the caller's name and professional qualifications to the provider or the provider's named independent review representative.

(f)

The independent review organization's procedures shall specify that specific information exchanged for the purpose of conducting review will be considered confidential, be used by the independent review organization solely for the purposes of independent review, and be shared by the independent review organization with only those third parties who have authority to receive such information. The independent review organization's plan shall specify the procedures that are in place to assure confidentiality and that the independent review organization agrees to abide by any federal and state laws governing the issue of confidentiality. Summary data which does not provide sufficient information to allow identification of individual patients, providers, payors or utilization review agents need not be considered confidential.

(g)

Medical records and patient-specific information shall be maintained by the independent review organization in a secure area with access limited to essential personnel only.

(h)

Information generated and obtained by the independent review organization in the course of the review shall be retained for at least four years if the information relates to a case for which an adverse decision was made at any point.

(i)

Destruction of documents in the custody of the independent review organization that contain confidential patient information or payor, physician or provider financial data shall be by a method which ensures complete destruction of the information, when the organization determines that the information is no longer needed.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 6, 1997.

TRD-9714792

Lynda H. Nesenholtz

Assistant General Counsel

Texas Department of Insurance

Effective date: November 26, 1997

Proposal publication date: September 5, 1997

For further information, please call: (512) 463-6327