28 TAC §§21.2101-21.2106
The Texas Department of Insurance proposes new Subchapter
M, §§21.2101-21.2106, concerning mandatory benefit notice requirements.
The proposed subchapter requires the issuance of notices relating to newly
enacted mandated benefits for certain health benefit plans for in-patient
care for mastectomy services, prostate cancer examinations, and in-patient
care for maternity and childbirth coverage. The proposed sections are necessary
to implement the Insurance Code Articles 21.52G, §5 (relating to coverage
for hospital stays following performance of a mastectomy and certain related
procedures)(HB 349), 21.53F, §4 (relating to coverage of certain tests
for detection of prostate cancer) (SB 258), and 21.53F, §7 (relating
to coverage for minimum inpatient stay in health care facility and postdelivery
care following birth of child) (HB 102) which were enacted by the 75th Legislature,
and require that notices be sent to enrollees of health benefit plans, informing
the enrollees of benefits for in-patient care for mastectomy services, prostate
cancer examinations, and in-patient care for maternity and childbirth coverage.
During the 75th legislative session, various coverages were added to the
benefits which must be provided by certain health benefit plans. Whether a
given health benefit plan must provide these mandated benefits is determined
by the benefits already provided by that plan. If a health benefit plan includes
coverage for the treatment of cancer, Insurance Code Article 21.52G, §3
(relating to coverage for hospital stays following performance of a mastectomy
and certain related procedures) (HB 349) requires minimum in-patient care
for a mastectomy or lymph node dissection. If a health benefit plan includes
diagnostic medical procedures, Insurance Code Article 21.53F, §3 (relating
to coverage of certain tests for detection of prostate cancer) (SB 258) requires
a diagnostic examination for the detection of prostate cancer. If a health
benefit plan includes coverage for maternity or childbirth, Insurance Code
Article 21.53F, §4 (relating to coverage for minimum inpatient stay in
health care facility and postdelivery care following birth of child) (HB 102)
requires minimum in-patient or postdelivery care following birth. Each of
these legislative enactments require carriers to send notices to enrollees
of health benefit plans of these mandated benefits. The proposed subchapter
delineates the timing, format, and contents of these notices.
Section 21.2101 states the purpose of the rule and identifies by date of
issuance or renewal health benefit plans to which the sections apply. Section
21.2102 defines the terms used in this subchapter. Specifically, health benefit
plan is defined as it applies to each specific mandated benefit. The mandated
benefit requiring minimum in-patient care for maternity and childbirth coverage
includes in the definition of health benefit plan small employer plans. The
inpatient maternity and childbirth coverage includes small employer plans
because the minimum inpatient maternity stay is required by federal law, pursuant
to the Newborns' and Mothers' Health Protection Act of 1996, Pub. L. No 104-204,
tit. VI, §§601-606. In order to maintain regulatory authority over
health benefit plans in the State of Texas, the commissioner is required to
implement the provisions of the Health Insurance Portability and Accessibility
Act (HIPAA), which was amended to include the Newborns' and Mothers' Health
Protection Act. Thus, small employer plans are necessarily included in the
definition of health benefit plan for the inpatient maternity and childbirth
coverage.
The mandated benefit for prostate cancer examination includes in the definition
of health benefit plan large employer plans. Insurance Code Article 21.53F,
§2(b)(2) (relating to coverage of certain tests for detection of prostate
cancer) (SB 258) excludes from the definition of health benefit plan plans
written under Chapter 26 of the Insurance Code. During the same legislative
session in which the prostate cancer examination benefit was passed, Chapter
26 was amended by HB 1212 to add large employer plans, whereas previously
it had contained only small employer plans. A determination has been made
that the legislature, by excluding health benefit plans under Chapter 26
from Article 21.53F, §2(B)(2) (relating to coverage of certain tests
for detection of prostate cancer) (SB 258), intended only to exclude small
employer plans from the mandated prostate cancer examination coverage, and
only because of the simultaneous enactment of HB 1212 and SB 258 did the
legislative oversight by which both large and small employers were included
in the exclusionary language of Article 21.53F, §2(B)(2) (relating to
coverage of certain tests for detection of prostate cancer) (SB 258) occur.
If health benefit plans for both large and small employer plans under Chapter
26 were excluded from coverage under Article 21.53F (relating to coverage
of certain tests for detection of prostate cancer) (SB 258), very few group
plans would be included in the prostate cancer examination coverage. The
Legislature obviously did not intend to mandate prostate cancer examination
coverage only to exclude most plans from compliance, rather, the Legislature
intended to exempt only small employer plans from the coverage provided in
Article 21.53F (relating to coverage of certain tests for detection of prostate
cancer) (SB 258).
Section 21.2103 provides the circumstances under which a certain notice
must be delivered. For the in-patient mastectomy and the in-patient maternity
and childbirth notices, prohibited acts by a carrier must be included. A
carrier is allowed to use substantially similar language, rather than the
forms provided, to satisfy this subchapter. If a health benefit plan provides
coverage or
benefits which trigger more than one of the mandated benefits addressed by
this subchapter, the required notices may be combined into one notice.
Section 21.2104 requires that the notices be in at least 10 point type.
Section 21.2105 sets forth the dates by which the required notices must be
provided in cases of existing health benefit plans, and for new enrollees
under new and existing health benefit plans, and how the notices are to be
delivered. Section 21.2106 provides forms which satisfy the notice requirement
of this subchapter.
Rose Ann Reeser, associate commissioner of regulation and safety, has determined
that for each year of the first five years the sections are in effect, any
fiscal impact on state government will be the result of the legislative enactment
of Insurance Code, Articles 21.52G (relating to coverage for hospital stays
following performance of a mastectomy and certain related procedures) (HB
349), 21.53F (relating to coverage of certain tests for detection of prostate
cancer) (SB 258) and 21.53F (relating to coverage for minimum inpatient stay
in health care facility and postdelivery care following birth of child) (HB
102), and not the result of the adoption and implementation of these sections.
There will be no fiscal impact on state or local government as a result of
enforcing or administering the proposed sections. There will be no measurable
effect on local employment or the local economy.
Ms. Reeser has determined that for each year of the first five years the
sections are in effect, the public benefit anticipated as a result of the
proposed sections will be that affected enrollees are notified of benefits
for in-patient care for mastectomy services, prostate cancer examinations,
and in-patient care for maternity and childbirth coverage on a timely basis.
Ms. Reeser estimates that the majority, if not the entirety, of the costs
to comply with this proposed subchapter result from the legislative enactment
of the Insurance Code, Articles 21.52G, §5 (relating to coverage for
hospital stays following performance of a mastectomy and certain related procedures)
(HB 349), 21.53F, §4 (relating to coverage of certain tests for detection
of prostate cancer) (SB 258) and 21.53F, §7 (relating to coverage for
minimum inpatient stay in health care facility and postdelivery care following
birth of child) (HB 102). The notices required by this subchapter are specifically
required in the enactment of each mandated benefit. If any cost is imposed
upon the carriers affected by these sections, such cost is attributable only
to the inclusion of the prohibition section of the legislative enactments
in the notice. To the extent that such cost is attributable to the inclusion
of the prohibition section in the notice, Ms. Reeser estimates that the inclusion
of the prohibition section would add not more than one page to the notices
without the prohibition section. Ms. Reeser estimates that the time to prepare,
copy and mail an additional page to the notice would cost no more than $1.25
per notice. The actual total cost to each carrier would vary depending upon
the number of enrollees to whom the notice must be sent and whether the notice
is delivered to the group master contract holder or directly to the enrollees.
In an effort to minimize costs, carriers are allowed to combine the notices
into one notice if more than one benefit is applicable, and carriers are allowed
to deliver the notice with other plan documents rather than in a separate
mailing.
Ms. Reeser has determined that any effect of these sections on small businesses
results mostly, if not entirely, from the legislative enactment of the Insurance
Code, Articles 21.52G, §5 (relating to coverage for hospital stays following
performance of a mastectomy and certain related procedures) (HB 349), 21.53F,
§4 (relating to coverage of certain tests for detection of prostate cancer)
(SB 258) and 21.53F, §7 (relating to coverage for minimum inpatient stay
in health care facility and postdelivery care following birth of child) (HB
102). The maximum additional cost that can possibly be associated with these
proposed sections is $1.25 per notice, if it is determined that requiring
the prohibition section is attributed to these sections. Assuming the maximum
cost of $1.25 per notice applies, the total cost to a carrier is not dependent
upon the size of the carrier, but rather it is dependent upon that carrier's
number of enrollees under the affected health benefit plans. Both small businesses
and the largest business affected by these sections would incur the same cost
per notice. Assuming that a small business and the largest business administered
health benefit plans with approximately the same number of enrollees to whom
this notice must be provided, the cost per hour of labor would not vary between
small and the largest businesses. The requirement of notice in this subchapter
is mandated by the underlying statutes, and cannot be waived for small businesses.
Comments on the proposal must be submitted within 30 days after publication
of the proposed sections in the Texas Register to Caroline Scott, Chief Clerk,
Mail Code 113-1C, Texas Department of Insurance, P.O. Box 149104, Austin,
Texas 78714-9104. An additional copy of the comment must be submitted to Linda
von Quintus, Deputy Commissioner, Regulation and Safety Division, Mail Code
107-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104.
Any requests for a public hearing should be submitted separately to the Office
of the Chief Clerk.
Subchapter M, §§21.2101-21.2106 are proposed under
the Insurance Code Articles 21.52G, §5 (relating to coverage for hospital
stays following performance of a mastectomy and certain related procedures)
(HB 349), & 21.53F, §4 (relating to coverage of certain tests for
detection of prostate cancer) (SB 258), and 21.53F, §7 (relating to coverage
for minimum inpatient stay in health care facility and postdelivery care following
birth of child) (HB 102); the Health Insurance Portability and Accountability
Act of 1996 (HIPAA); the Newborns' and Mothers' Health Protection Act of 1996,
the Insurance Code Article 26.04, the Insurance Code Article 3.95-15, and
the Insurance Code Article 1.03A. The Insurance Code Article 21.52G (relating
to coverage for hospital stays following performance of a mastectomy and certain
related procedures) (HB 349) as added by the 75th Legislature, implements
mandated coverage for in-patient mastectomy coverage. Under the Insurance
Code Article 21.52G, §5, health benefit plans must provide written notice
to each enrollee in accordance with rules adopted by the commissioner. The
Insurance Code Article 21.52F (relating to coverage of certain tests for detection
of prostate cancer) (SB 258), as added by the 75th Legislature, implements
mandated coverage for prostate cancer examination. Under the Insurance Code
Article 21.53F, §4, health benefit plans must provide written notice
to each enrollee in accordance with rules adopted by the commissioner. The
Insurance Code Article 21.52F (relating to coverage for minimum inpatient
stay in health care facility and postdelivery care following birth of child)
(HB 102), as added by the 75th Legislature, implements mandated coverage for
inpatient maternity and childbirth benefits. Under the Insurance Code Article
21.53F, §7, health benefit plans must provide written notice to each
enrollee in accordance with rules adopted by the commissioner. The minimum
requirements of federal law for inpatient maternity benefits are contained
in HIPAA, as amended by the Newborns' and Mothers' Health Protection Act.
Inclusion of small employer plans in the inpatient maternity and childbirth
benefits are necessary to meet the minimum requirements of federal law. The
Insurance Code Article 26.04, as amended by the 75th Legislature, instructs
the commissioner to adopt rules to meet the minimum requirements of federal
law and regulations. The Insurance Code Article 3.95-15, as amended by the
75th Legislature, instructs the commissioner to adopt rules to meet the minimum
requirements of federal law and regulations. The Insurance Code Article 1.03A
provides that the Commissioner of Insurance may adopt rules and regulations
to execute the duties and functions of the Texas Department of Insurance only
as authorized by a statute.
The following articles are affected by this proposal: Texas Insurance Code,
Articles 21.52G (HB 349), 21.53F (SB 258) & 21.53F (HB 102)
§21.2101. Scope.
The purpose of this subchapter is to require notice to enrollees in
a health benefit plan of coverage and/or benefits for prostate cancer examinations,
minimum inpatient stays for maternity and childbirth, and/or mastectomies.
This subchapter applies to all carriers issuing, delivering or renewing health
benefit plans as defined in this subchapter as of January 1, 1998.
§21.2102.Definitions.
The following words and terms, when used in this subchapter shall have
the following meanings, unless the context clearly indicates otherwise.
Carrier
-An insurance company, a group hospital service corporation,
a fraternal benefit society, a stipulated premium insurance company, a health
maintenance organization, or a multiple employer welfare arrangement that
has a certificate of authority under Insurance Code Article 3.95-2.
Enrollee
-An individual who is enrolled in a health benefit
plan, including covered dependents.
Health benefit plan
-Subject to subparagraphs (A), (B) and
(C) of this paragraph, a plan that provides benefits for medical or surgical
expenses incurred as a result of a health condition, accident, or sickness
including an individual, group, blanket or franchise insurance policy or
insurance agreement, a group hospital service contract, or an individual
or group evidence of coverage. The term does not include a plan that provides
coverage only for accidental death or dismemberment, disability income, supplement
to liability insurance, Medicare supplement, workers' compensation, medical
payment insurance issued as a part of a motor vehicle insurance policy or
a long-term care policy.
(A)
For the inpatient mastectomy coverage notice
required by subsection (a)(1) of §21.2103 of this title (relating to
Notices), the definition of health benefit plan includes a plan that provides
coverage only for a specific disease or condition for the treatment of breast
cancer or for hospitalization. The term does not include a small employer
health benefit plan issued under the Insurance Code, Chapter 26, Subchapters
(A)-(G).
(B)
For the prostate cancer examination notice required
by subsection (a)(2) of §21.2103 of this title (relating to Notices),
the definition of health benefit plan does not include a small employer health
benefit plan written under the Insurance Code Chapter 26, Subchapters (A)-(G),
or plans that provide coverage only for a specified disease or other limited
benefit or only for indemnity for hospitalization.
(C)
For the inpatient maternity and childbirth coverage
notice required by subsections (a)(3) & (4) of §21.2103 of this
title (relating to Notices), the definition of health benefit plan does not
include credit insurance, or plans that provide coverage only for a specified
disease or other limited benefits, only for dental or vision care, or only
for indemnity for hospital confinement.
Other limited benefit
-A plan that provides coverage singularly
or in combination, for benefits for a specifically named disease, accident
or combination of diseases or accidents, including but not limited to heart
attack, stroke, AIDS, and travel, farm or occupational accident.
Primary Enrollee
-For group coverage, the covered member or
employee of the group. For individual coverage, the person first named on
the application/enrollment form.
§21.2103.Notices.
(a)
Prescribed notices consist of the following:
(1)
For a health benefit plan that provides coverage and/or
benefits for the treatment of breast cancer, a carrier shall issue a notice
which includes the language provided in Figure 1 of subsection (b) of §21.2106
of this title (relating to Forms, Form Number 349 Mastectomy).
(2)
For a health benefit plan that provides coverage and/or
benefits for diagnostic medical procedures, a carrier shall issue a notice
which includes the language provided in Figure 2 of subsection (b) of §21.2106
of this title (relating to Forms, Form Number 258 Prostate).
(3)
For a health benefit plan that provides coverage and/or
benefits for maternity, including benefits for childbirth, a carrier shall
issue a notice which includes the language provided in Figure 3 of subsection
(b) of §21.2106 of this title (relating to Forms, Form Number 102 Maternity).
(4)
If the health benefit plan described in paragraph
(3) of this subsection includes benefits and/or coverage for in-home postdelivery
care, the following language, or substantially similar language, shall be
inserted immediately before the "Prohibitions" portion of the notice language
at Figure 3 of subsection (b) of §21.2106 of this title (relating to
Forms); "Since we provide in-home postdelivery care, we are not required
to provide the minimum number of hours outlined above unless (a) the mother's
or child's physician determines the inpatient care is medically necessary
or (b) the mother requests the inpatient stay."
(b)
In lieu of the prescribed notices outlined in subsection
(a) of this section, a carrier may opt to provide notices with substantially
similar language rather than the notices contained in subsection (b) of §21.2106
of this article (relating to Forms). The substantially similar language must
be in a readable and understandable format, and must include a clear, complete
and accurate description of these items in the following order:
(1)
a heading in bold print and all capital letters indicating
the information in the notice relates to mandated benefits,
(2)
a statement that the notice is being provided to advise
the enrollee of the appropriate coverage(s)/benefit(s), including the carrier's
complete licensed name,
(3)
a heading in bold print describing the benefit/coverage
being provided, for example, Examinations for Detection of Prostate Cancer,
(4)
a description of the benefit/coverage for which the
notice is being provided,
(5)
for the notice required by subsections (a)(1) and
(3) of this section, the heading "Prohibitions" in bold print, followed by
a summary of the prohibited acts by a carrier in providing the benefit/coverage
for which the notice is being provided, and
(6)
a statement identifying the carrier, and providing
a phone number and address to which an enrollee may direct questions regarding
the coverage(s)/benefit(s) for which the notice is being provided.
(c)
If a health benefit plan provides coverage and/or benefits
of more than one of the required notices described in subsection (a) of this
section, the carrier may combine the language of the required notices into
one notice.
(d)
If, before the effective date of these rules, a carrier
has provided notice(s) to its enrollees that contains the information required
by the notices described in this subchapter, such notices shall be deemed
to comply with the requirements of this subchapter as to those enrollees.
§21.2104. Print Size of Notices.
The notices required by this subchapter shall be in no less than 10
point type.
§21.2105.Delivery of Notices.
The notices required by this subchapter shall be issued to enrollees
of a health benefit plan that is delivered, issued for delivery, or renewed
on or after January 1, 1998, and shall be provided according to the following
paragraphs:
(1)
The notice shall be provided
(A)
within 60 days of the effective date of this subchapter
to enrollees whose plans were renewed or issued between January 1, 1998 and
the effective date of this subchapter;
(B)
within 60 days of enrollment to new enrollees, whether
in a newly issued or newly delivered health benefit plan, or an existing plan
which is renewed after the effective date of this subchapter; or
(C)
within 60 days of renewal date to existing enrollees of
an existing plan which is renewed after the effective date of this subchapter.
(2)
Except as specified in paragraph (6) of this
section, the notices shall be delivered to enrollees through the U.S. Postal
Service.
(3)
The notice may be delivered with other health benefit
plan documents as long as the time frames set forth in paragraph (1) of this
section are met. For example, the notice may be delivered with the policy,
certificate, evidence of coverage, or enrollment/insurance card.
(4)
If the notices are provided to the primary enrollee's
last known address, the requirements of this section are satisfied with respect
to all enrollees residing at that address.
(5)
If a covered spouse or dependent's last known address
is different than the primary enrollee, separate notices are required to be
provided to the spouse or the dependent at the spouse's or dependent's last
known address.
(6)
For group health benefit plans, the notice may be
provided to the group master contract holder for distribution to enrollees
if the carrier has an agreement with the group master contract holder that
the notice will be delivered in accordance with the timelines specified in
paragraph (1) of this section however, the carrier will be held responsible
for ensuring that notice is provided to the enrollees.
§21.2106. Forms.
(a)
The forms identified in §21.2103 of this title (relating
to Notices) for notices of mandatory benefits are included in subsection
(b) of this section in their entirety and have been filed with the Office
of the Secretary of State. The forms can be obtained from the Texas Department
of Insurance, Life/Health Group, MC 106-1A, P.O. Box 149104, Austin, Texas,
78714-9104.
(b)
The forms referenced in this chapter are as follow:
(1)
Figure Number 1: Form Number 349 Mastectomy
FIGURE NO. 1: 28 TAC §21.2106(b)(1)
(2)
Figure Number 2: Form Number 258 Prostate
FIGURE NO. 2: 28 TAC §21.2106(b)(2)
(3)
Figure Number 3: Form Number 102 Maternity
FIGURE NO. 3: 28 TAC §21.2106(b)(3)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on December 22, 1997.
TRD-9717067
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: February 2, 1998
For further information, please call: (512) 463-6327